2010-0052010-5
Resolution Accepting Roads, Easements, Utilities and Other Public Improvements
Constructed in Connection with the Tuscany Subdivision Together with Maintenance
Agreement Secured by Irrevocable Letter of Credit
At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County,
New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on January 4,
2010.
The meeting was called to order by Christopher Colsey, Supervisor, and upon roll being
called, the following were present:
PRESENT: Supervisor - Christopher J. Colsey
Councilmembers - William H. Beale
Vincent F. Bettina
Ismay Czarniecki
Joseph P. Paoloni
ABSENT:
The following Resolution was introduced by Councilman Beale and seconded by
Councilman Bettina.
WHEREAS, Creekview Holdings, LTD. (hereinafter "Applicant"), had previously made
application to the Town of Wappinger Planning Board to approve a subdivision of lands more
particularly described in a subdivision plat entitled "Tuscany Subdivision", prepared by M.A.
Day Engineering PC, dated October 14, 2002; and
WHEREAS, the Town of Wappinger Planning Board granted Preliminary and Final
Subdivision Plat Approval, by Resolution dated February 7, 2005, and Final Subdivision Plat
Approval, by Resolution dated February 6, 2006, subject to, and conditioned upon, fulfillment of
the conditions set forth in the aforementioned Resolution, and subject to certain improvements
being made and constructed as set forth in the aforesaid Subdivision Map and related Contract
Drawings, including dedication of the road for the Tuscany Subdivision, all in accordance with
the Town of Wappinger Subdivision Regulations, Zoning Code, Highway Specifications, and
Rules and Regulations of the Town Code; and
WHEREAS, Creekview Holdings, LTD. has completed development of the subdivision,
including all of the improvements as required by the Resolution of Final Subdivision Approval;
and
WHEREAS, the Applicant has tendered to the Town of Wappinger the following
documents: an Irrevocable Offer of Cession and Dedication dated January 31, 2006, which was
filed in the Dutchess County Clerk's Office on February 23, 2006 as document number 02 2006
1575; original deed for road dedication of Tuscany Drive executed by Creekview Holdings,
LTD. by David W. Stenger, dated January 31, 2006, together with accompanying TP -584 and
RP -5217; original Grant of Snow Easements #1 and #2 duly executed by Creekview Holdings,
LTD. by David W. Stenger, dated January 31, 2006, together with accompanying TP -584;
original Grant of Permanent Easements for Drainage Purposes duly executed by Creekview
Holdings, LTD. by David W. Stenger, dated February 2006, together with accompanying TP -
584; original Declaration of Common Driveway Easement duly executed by Creekview
Holdings, LTD. by David W. Stenger, dated February 2006; original Policy for Title Insurance
issued by United General Title Insurance Company bearing Policy No. 3 51913 77; original
Performance Agreement secured by an Irrevocable Letter of Credit duly executed by Creekview
Holdings, LTD. by David W. Stenger, dated February 2, 2006; and original Irrevocable Letter of
Credit issued by Mahopac National Bank in favor of the Town of Wappinger bearing number
200573, all in recordable form and approved by the Attorney to the Town, Albert P. Roberts, by
letter dated February 8, 2006; and
WHEREAS, the Town Board has determined it is in the best interest of the residents of
the Town of Wappinger, particularly the residents of the Tuscany Subdivision, to accept the
roads, easements, utilities and other public improvements that have been constructed in
accordance with the original Resolution of Subdivision Plat Approval; and
WHEREAS, pursuant to Subdivision Regulations of the Town of Wappinger, Creekview
Holdings, LTD. is required to guarantee that the quality and workmanship of the improvements
accepted by the Town will be free from defects in materials and workmanship for a period of one
year from the date of acceptance by the Town; and
WHEREAS, to guarantee the quality and workmanship of the public improvements,
Creekview Holdings, LTD., has executed a Maintenance Agreement secured by an Irrevocable
Letter of Credit bearing number 200573, issued in favor of the Town of Wappinger by Mahopac
National Bank in the principal sum of One Hundred Thirty -Six Thousand, Four Hundred Forty
Dollars ($136,440.00); and
WHEREAS, as additional security to secure the obligation that the improvements will be
free from defects, David W. Stenger, as President of Creekview Holdings, LTD., has further
agreed to personally guarantee the obligations of Creekview Holdings, LTD. as set forth herein.
NOW, THEREFORE, BE IT RESOLVED, as follows:
1. The recitations above set forth are incorporated in this Resolution as if fully set
forth and adopted herein.
2. The Town Board hereby determines that it is in the best interest of the residents of
the Town of Wappinger, particularly the residents of the Tuscany Subdivision, to accept the road
known as Tuscany Drive, and related easements, utilities and other public improvements made
and constructed in connection with the Tuscany Subdivision, and, the Town Board hereby
accepts same upon delivery of the original Maintenance Agreement and Irrevocable Letter of
Credit above mentioned.
3. The Town Supervisor, Christopher J. Colsey, Engineer to the Town, Robert J.
Gray, and Attorney to the Town, Albert P. Roberts, are authorized and directed to take whatever
steps are necessary to have the aforementioned Deed, Easements and related Bills of Sale, if any,
recorded and/or filed in the Office of the Dutchess County Clerk and to execute any and all
documents necessary for such recording and/or filing, upon a determination that the aforesaid
documents are delivered free and clear of any liens or encumbrances and are otherwise in
compliance with the Town's Subdivision Regulations, Zoning Code, Highway Specifications,
and Rules and Regulations of the Town Code.
4. The Maintenance Agreement executed on December 18, 2009, by Creekview
Holdings, LTD. with an address of 2537 Route 52, Suite 16, Hopewell Junction, New York
12533, as Obligor, in favor of the Town of Wappinger, as Obligee, is accepted as the guarantee
that the quality and workmanship of the road and other public improvements will be free from
defects in materials and workmanship for a period of one year from the date of acceptance by the
Town as required by the Subdivision Regulations of the Town of Wappinger.
5. The Irrevocable Letter of Credit issued by Mahopac National Bank, bearing
number 200573 and issued in favor of the Town of Wappinger in the principal sum of One
Hundred Thirty -Six Thousand, Four Hundred Forty Dollars ($136,440.00) securing the
obligations set forth in the Maintenance Agreement, is hereby accepted as security for the
Maintenance Agreement.
6. The personal guarantee issued by David W. Stenger, incorporated into the
Maintenance Agreement, in favor of the Town of Wappinger, securing the obligations set forth
in the Maintenance Agreement, is hereby accepted as additional security for the Maintenance
Agreement.
7. The Town Board acknowledges that the developer, Creekview Holdings, LTD.
has completed all of the work required by the Planning Board's Resolution of Preliminary and
Final Subdivision Plat Approval dated February 7, 2005, and Resolution of Final Subdivision
Plat Approval dated February 6, 2006, and that the Performance Agreement originally executed
by Creekview Holdings, LTD. by David W. Stenger on February 2, 2006, has been fully
honored, and the Town Board hereby authorizes the Town Clerk to release the original
Irrevocable Letter of Credit issued by Mahopac National Bank in favor of the Town of
Wappinger bearing number 200573 upon the Town Clerk's receipt of the above referenced
Irrevocable Letter of Credit in the sum of One Hundred Thirty -Six Thousand, Four Hundred
Forty Dollars ($136,440.00) in the form acceptable to the Attorney to the Town.
The foregoing was put to a vote which resulted as follows:
CHRISTOPHER COLSEY, SUPERVISOR
Voting:
ABSTAIN
WILLIAM H. BEALE, COUNCILMAN
Voting:
AYE
VINCENT F. BETTINA, COUNCILMAN
Voting:
AYE
ISMAY CZARNIECKI, COUNCILWOMAN
Voting:
AYE
JOSEPH P. PAOLONI, COUNCILMAN
Voting:
NAY
Dated: Wappingers Falls, New York
1/4/2010
The Resolution is hereby duly declared adopted.
& - 0. aa::�
10 HN C. MASTERSON, TOWN CLERK
VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND, LLP
ATTORNEYS AND COUNSELORS AT LAW
GERALD A. VERGILIS*
KENNETH M. STENGER
ALBERT P. ROBERTS
THOMAS R. DAVIS
STEPHEN E. DIAMOND****
JOAN F. GARRETT**
KEVIN T. McDERMOTT
ANGEL I.FALC6N
ANTHONY M. DEFAZIO***
JAMES P. HORAN***
LISA M. COBB
M. ELLEN O'SULLIVAN
*ADMITTEDTOPRACTICE
IN NY & FLA.
**ADMITTED TO PRACTICE
IN NY & CONN.
*** ADMITTED TO PRACTICE
IN NY & NJ
****ADMITTED TO PRACTICE
IN NY, FL & MA
December 21, 2009
Town Board
Town of Wappinger
20 Middlebush Road
Wappingers Falls, New York
Attention: Hon. Christopher J
1136 ROUTE 9
OF COUNSEL:
WAPPINGERS FALLS, NEW YORK 12590
KAREN MacNISH
LEGAL ASSISTANTS:
(845) 298-2000
AMY E. DECARLO
FAX (845) 298-2842
SANDRA A. OAKLEY
SARAH SALISBURY
WWW.Vsrp.com
CLOSING COORDINATOR:
e-mail: info vs com
@ rp
MARIA JONES
Colsey, Supervisor
Re: Tuscany Subdivision (Tuscany Drive)
Maintenance Agreement Secured by Letter of Credit
Our File No. 12949.0354
Dear Chris:
POUGHKEEPSIE OFFICE
276 MAIN STREET
POUGHKEEPSIE, NY 12601
(845)452-1046
NEWBURGH OFFICE
372 FULLERTON AVENUE
NEWBURGH, NY 12550
(845)567-3783
I have reviewed the Maintenance Agreement executed by Creekview Holdings, LTD. secured by
an Irrevocable Letter of Credit issued by Mahopac National Bank, bearing number 200573, a
photo copy of which is affixed hereto. The Maintenance Agreement is dated December 18, 2009
and the Irrevocable Letter of Credit is dated January 4, 2010. Both the Maintenance Agreement
and Irrevocable Letter of Credit are approved and acceptable as to form. By copy of this letter I
am forwarding the original Maintenance Agreement to Tatiana Lukianoff.
Accordingly, I am also enclosing herewith a Resolution Accepting Roads, Easements, Utilities
and Other Public Improvements Constructed in Connection with the Tuscany Subdivision
Together with Maintenance Agreement secured by Irrevocable Letter of Credit for adoption by
the Town Board at its next meeting on January 4, 2010.
0:\Wappinger\PlanningBoard\Tuscany\122109 letter to Colsey re Maintenance Agmt and Resoltion Accepting Agmt.doc
Christopher J. Colsey, Supervisor
December 21, 2009
Page 2
Very truly yours,
VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND, LLP
'4-
ALBERT P. R ✓ RTS
APR/so
Enclosures
cc: Hon. John C. Masterson, Town Clerk
Planning Board
Tatiana Lukianoff, Zoning Administrator
M. A. Day Engineering PC
0:\Wappinger\PlanningBoard\Tuscany\122109 letter to Colsey re Maintenance Agmt and Resoltion Accepting Agmt.doc
Revised 12/18/09
MAINTENANCE AGREEMENT SECURED BY LETTER OF CREDIT
WHEREAS, the undersigned, Creekview Holdings, LTD., by its President, David W. Stenger, with
an office at 2537 Route 52 Heritage Square, Suite 16, P.O. Box 306, Hopewell Junction, New York 12533,
has now completed the roads and other required public improvements in connection with the Subdivision
known as "Tuscany Subdivision" prepared by M.A. Day Engineering PC, dated October 14, 2002, which
map has been filed in the Dutchess County Clerk's Office as filed map number 11899 on February 6, 2006
(hereinafter the "Subdivision") which roads and other required public improvements are ready to be
dedicated and accepted by the Town of Wappinger; and
WHEREAS, pursuant to the Subdivision Regulations of the Town of Wappinger (hereinafter the
"Town") the undersigned is required to guarantee that the quality and workmanship of any roads and public
improvements to be dedicated to the Town in connection with the aforementioned "Tuscany Subdivision",
will be free from defects in materials and workmanship for a period of one year from the date of acceptance
by the Town; and
WHEREAS, to secure the obligations to guarantee said roads and public improvements, the
undersigned has obtained a Letter of Credit issued by Mahopac National Bank bearing number 200573, in
the principal sum of One Hundred Thirty Six Thousand Four Hundred Forty Dollars ($136,440.00) issued in
favor of the Town of Wappinger; and
WHEREAS, as additional security to secure the obligation that the roads and other public
improvements will be free from defects in materials and workmanship, David W. Stenger, as President of
the undersigned, has further agreed to personally guarantee the obligations set forth in this Maintenance
Agreement.
NOW, THEREFORE, the undersigned, Creekview Holdings, LTD. by its President, David W.
-1-
0:\Wappinger\PlanningBoard\Tuscany\Maintenance Agreement - Roads & Other Improvements. DOC
Revised 12/18/09
Stenger, hereby guarantees that the quality and workmanship of the roads and other public improvements
constructed and installed in connection with the Subdivision will be free from defects in materials and
workmanship for a period of one year from the date of acceptance of said roads and improvements by
the Town and the undersigned further agrees to maintain and repair said roads and public improvements in
accordance with the Ordinances, Local Laws, Rules, Regulations and Code of the Town of Wappinger for a
period of one year from the date of acceptance of said roads and improvements by the Town.
As security for this Maintenance Agreement, the undersigned delivers to the Town the following
security for the faithful performance of the obligations contained herein:
A Letter of Credit issued by Mahopac National Bank bearing number200573, in the principal sum
of One Hundred Thirty Six Thousand Four Hundred Forty Dollars ($136,440.00) in favor of the
Town, which Letter of Credit is attached hereto, and the undersigned consents to the terms thereof
as security for the obligations contained herein. The undersigned understands that if the security
posted hereunder shall lapse or expire for any reason, then this Maintenance Agreement will be
deemed in default and lots within the Subdivision will no longer be eligible for building permits or
certificates of occupancy until new and sufficient security is posted.
As additional security for this Maintenance Agreement, David W. Stenger, as President of
Creekview Holdings, LTD. further joins in the execution of this Agreement for the sole purpose of
guaranteeing the faithful performance of the obligations created hereunder.
Date: v
-2—
CREEKVIEW HOLDINGS((, LTD.
By: � 6
?0�0—
DgyffW. Stenger, PresicAlt
S
DaN,' . Stenger, Individually V
s Guarantor
O:\Wappinger\PlanningBoard\Tuscany\Maintenance Agreement - Roads & Other Improvements. DOC
Revised 12/18/09
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF DUTCHESS )
On the T day of December, 2009, before me, the undersigned, personally appeared DAVID W.
STENGER personally known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to the that he executed the
same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
t C-,
otary Public SALISBURY
Notary Public, State of New York
No.OISA6209903
Qual fled In Dutchess County
Commission Expires August 3, 20ia
-3-
0:\Wappinger\PlanningBoard\Tuscany\Maintenance Agreement - Roads & Other Improvements. DOC
IRREVOCABLE LETTER OF CREDIT �-
Borrower: Creekview Holdings Ltd. Lender: Mahopac National Bank
P.O. Box 306 1441 Route 22
Hopewell Jct. , NY 12533 Brewster, NY 10509
1
7
r
f,
Beneficiary: Town of Wappinger
20 Middlebush Road
Wappingers Falls, NY 12590 '
S. r. s.
NO.: 200573
EXPIRATION DATE. This letter of credit shall expire upon the close of business on 01-04-2011 and all drafts and accompanying statements or
documents must be presented to Lender on or before that time (the "Expiration Date").
AMOUNT OF CREDIT. Lender hereby establishes at the request and for the account of Borrower, an Irrevocable Letter of Credit in favor of
Beneficiary for a sum of One Hundred Thirty-six Thousand Four Hundred Forty & 00/100 Dollars ($136,440.00) (the "Letter of Credit"). These
funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's address
indicated above (or other such address that Lender may provide Beneficiary in writing) during regular business hours and accompanied by the
signed written statements or documents indicated below.
WARNING TO BENEFICIARY: PLEASE EXAMINE THIS LETTER OF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS
REQUIREMENTS, EITHER SINGLY OR TOGETHER, YOU SHOULD CONTACT BORROWER IMMEDIATELY TO SEE IF THE LETTER OF CREDIT
CAN BE AMENDED. OTHERWISE, YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDIT FOR FAILURE TO COMPLY STRICTLY
WITH ITS TERMS AS WRITTEN.
DRAFT TERMS AND CONDITIONS. Lender shall honor drafts submitted by Beneficiary under the following terms and conditions: A statement
purportedly signed by an authorized officer of the Town of Wappinger stating: "We hereby certify that the amount of One Hundred Thirty-six
Thousand Four Hundred Forty and 00/100 U.S. Dollars ($136,440.00), or parts thereof, as evidenced by our sight draft dated today and drawn
on you represents the amount due Town of Wappinger from Creekview Holdings, Ltd, as a result of its failure to perform its obligations in
accordance with the maintence agreement entered into with the Town of Wappinger. We further certify that the account party was given ample
opportunity to be heard on this matter prior to the Town Board voting on this resolution."
Upon Lender's honor of such drafts, Lender shall be fully discharged of Lender's obligations under this Letter of Credit and shall not be obligated
to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has been drawn.
Beneficiary shall have no recourse against Lender for any amount paid under this Letter of Credit once Lender has honored any draft or other
document which complies strictly with this Letter of Credit, and which on its face appears otherwise in order but which is signed, issued, or
presented by a party or under the name of a party purporting to act for Beneficiary, purporting to claim through Beneficiary, or posing as
Beneficiary without Beneficiary's authorization. By paying an amount demanded in accordance with this Letter of Credit, Lender makes no
representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary, or any other person, for any amount
paid or disbursed for any reason whatsoever, including, without limitation, any nonapplication or misapplication by Beneficiary of the proceeds of
such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not and will not present upon the
other, unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds received by Beneficiary in excess of
the Letter of Credit's maximum drawing amount.
USE RESTRICTIONS. All drafts must be marked "DRAWN UNDER Mahopac National Bank IRREVOCABLE LETTER OF CREDIT NO. 200573
DATED 01-04-2010," and the amount of each draft shall be marked on the draft. Only Beneficiary may complete a draft and accompanying
statements or documents required by this Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must
accompany any draft drawn hereunder.
Partial draws are permitted under this Letter of Credit. Lender's honor of a partial draw shall correspondingly reduce the amount of credit
available under this Letter of Credit. Following a partial draw, Lender shall return this original Letter of Credit to Beneficiary with the partial
draw noted hereon; in the alternative, and in its sole discretion, Lender may issue a substitute Letter of Credit to Beneficiary in the amount
shown above, less any partial draw(s).
PERMITTED TRANSFEREES. The right to draw under this Letter of Credit shall be nontransferable, except for:
A. A transfer (in its entirety, but not in part) by direct operation of law to the administrator, executor, bankruptcy trustee, receiver,
liquidator, successor, or other representative at law of the original Beneficiary; and
B. The first immediate transfer (in its entirety, but not in part) by such legal representative to a third party after express approval of a
governmental body (judicial, administrative, or executive).
TRANSFEREES REQUIRED DOCUMENTS. When the presenter is a permitted transferee (i) by operation of law or (i)) a third party receiving
transfer from a legal representative, as described above, the documents required for a draw shall include a certified copy of the one or more
documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary.
COMPLIANCE BURDEN. Lender is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of
this Letter of Credit precisely as written. Beneficiary understands and acknowledges: (i) that unless and until the present wording of this Letter
of Credit is amended with Lender's prior written consent, the burden of complying strictly with such wording remains solely upon Beneficiary,
and (ii) that Lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval of such wording.
NON -SEVERABILITY. If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or governmental body
having jurisdiction, Lender's entire engagement under this Letter of Credit shall be deemed null and void ab initio, and both Lender and
Beneficiary shall be restored to the position each would have occupied with all rights available as though this Letter of Credit had never
occurred. This non -severability provision shall override all other provisions in this Letter of Credit, no matter where such provision appears
within this Letter of Credit.
GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the
laws of the State of New York without regard to its conflicts of law provisions, and except to the extent such laws are inconsistent with the
2007 Revision of the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce, ICC Publication No.
600. This Agreement has been accepted by Lender in the State of New York.
EXPIRATION. Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this Letter of Credit will be
duly honored if presented to Lender on or before the Expiration Date unless otherwise provided for above.
Dated: January 4, 2010
IRREVOCABLE LETTER OF CREDIT
Loan No: 200573 (Continued) Page 2
LENDER
RSEMENT OF DRAFTS DRAWN:
Amount Amount
1101" -- -
In Words In Figures
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