HomeMy WebLinkAboutL 12996 P 68 11111111 1111 IIIII 11111 IIIII IIIII IIIII IIIII 11111 IIII 1111
1111111111111111111111111
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT Recorded: 01/09/2019
Number of Pages : 24 At: 04 : 08 :25 PM
Receipt Number 19-0005363
TRANSFER TAX NUMBER: 18-19591 LIBER: D00012996
PAGE : 068
District: Section: Block: Lot:
1000 083 .00 02 .00 016 .002
EXAMINED AND CHARGED AS FOLLOWS
Deed Amount: $1, 603,462 . 50
Received the Following Fees For Above Instrument
Exempt Exempt
Page/Filing $120 . 00 NO Handling $20 .00 NO
COE $5.00 NO NYS SRCHG $15.00 NO
TP-584 $5. 00 NO Notation $0 . 00 NO
Cert.Copies $30 .00 NO RPT $200 . 00 NO
Transfer tax $0 . 00 NO Comm.Pres $0 .00 NO
Fees Paid $395. 00
TRANSFER TAX NUMBER: 18-19591
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
JUDITH A. PASCALE
County Clerk, Suffolk County
1051
Number of pages — a 4 RECORDED2019 Jan 09 04:08:25 PMTORRENS JUDITH A. PASCALE
CLERK OF
Serial# SUFFOLK: COUNT!
L D00012996
Certificate# P 068
DT# 18-15591
Prior Ctf.#
Deed/Mortgage Instrument Deed/Mortgage Tax Stamp Recording/Filing Stamps
3 FEES
Page/Filing Fee �� Mortgage Amt.
Handling VV 00
1. Basic Tax
2. Additional Tax
TP-584 >i Sub Total
Notation Spec./Assit.
EA-52 17(County) � Sub Total ( or
Spec./Add.
EA-5217(State) TOT.MTG.TAX
QY Dual Town Dual Count
R.P.T.S.A. D
O --r �� �� Y .�
�� Held for Appointment
Comm.of Ed. 5. 00 cans er Tax
Affidavit �� . r ° Mansion Tax
6 t!��a
opy �J� �� The property covered by this mortgage is
or will be improved by a one or two
Nrge 15. 00 family dwelling only. '
Other -
Sub Total u YES or NO
Q
Grand Total / If NO,see appropriate tax clause on
page# of this i Vf nt.
/
4 Dist, 19000780 1000 083ao 0200 016002 �r Ono 5 Community Preservation Fund
Real Propi RPT A II®WIIWII; Consideration Amount$ Z
Tax Servic t",WH + IuNul�' IIWIIII
Agency 0tAN-1
Veriftcatic
�� I ax Due $ /l1,4T
Improved
Vacant Land
6 Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD&RETURN TO: TD 0—
lWomf ,Dubin j C W(a�raro)LLP TD
011 1' LiSCi Cv,(kz j4mb rinkj11
33i�Atmf'd )t(ff TD
4'6,NI `q-N 7 Title Company Information
Co.Name
Title# 22
8 Suffolk Countv Recording & .Endorsement Pa e-
This page forms part of the attached ��d� P ID t11�(1t R 'h5eme✓1� made by:
�( (SPECI .Y TYPE O INSTRUMENT)
The premises herein is situated in
�G meS (1'11 C�1 G I CA SUFFOLK COUNTY,NEW YORK``.
TO In the Township of S
d — I� In the VILLAGE
or HAMLET of � � Vt
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO CORDING OR FILING.
(over)
GRANT OF DEVELOPMENT RIGHTS EASEMENT
` THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on the
18"' day of December, 2018 at Southold, New York. The parties are
RICHARD JAMES MCBRIDE and JAMES MICHAEL MCBRIDE with an address
at 10415 Oregon Road, Cutchogue, New York 11935 (herein collectively'
called "Grantor"), and the TOWN OF SOUTHOLD, a municipal corporation,
having its principal office at 53095 Main Road, P.O. Box 1179, Southold,
New York 11971-0959 (herein called "Grantee").
INTRODUCTION
WHEREAS, Grantor is the owner in fee simple of certain real property
located in the Town of Southold, Suffolk County, New York, identified as part
of SCTM #1000-83-2-16 more fully described in SCHEDULE "A" attached
hereto and made a part hereof and hereinafter referred to as the "Property"
and shown on the survey prepared by Nathan Taft Corwin, III, Land
Surveyor, dated August 22, 2018 (a reduced copy of which is attached
hereto and made a part hereof and hereinafter referred to as the "Survey");
and I''12rk��°: h,61 f 8
WHEREAS, the Property is located in the A-C Zoning District of the
Town of Southold; and
WHEREAS, the Property contains soils classified as Class I and Class II
worthy of conservation as identified by the United States Department of
Agriculture Soil Conservation Service's Soil Survey of Suffolk County, New
York; and
WHEREAS, the Property is currently planted in row crops; and
WHEREAS, it is the policy of the Town of Southold (the "Town"), as
articulated in the Town's Master Plan of 1973, amended in 1986 and 1989 as
adopted by the Town Board, Town of Southold, and §272-a of the New York
State Town Law ("Town Law") to protect environmentally sensitive areas,
preserve prime agricultural soils, to protect the scenic, open space character
of the Town and to protect the Town's resort and agricultural economy; and
WHEREAS, the Property in its present scenic and agricultural condition
has substantial and significant value as an aesthetic and agricultural
resource since it has not been subject to any substantial development; and
1
WHEREAS, Grantor and Grantee recognize the value and special
character of the region in which the Property is located, and Grantor and
Grantee have, in common, the purpose and objective of protecting and
conserving the present state and inherent, tangible and intangible values of
the Property as an environmental, natural, scenic, agricultural, and aesthetic
resource, and
WHEREAS, Grantee has determined it to be desirable and beneficial
and has requested Grantor, for itself and its successors and assigns, to grant
a Development Rights Easement to Grantee in order to restrict the further
development of the Property while permitting compatible uses thereof;
NOW THEREFORE, in consideration of ONE MILLION SIX HUNDRED
THREE THOUSAND FOUR HUNDRED SIXTY-TWO AND 50/100 DOLLARS
($1,603,462.50) and other good and valuable consideration paid to the
Grantor, the receipt of which is hereby acknowledged, the Grantor does
hereby grant, transfer, bargain, sell and convey to the Grantee a
Development Rights Easement, in gross, which shall be binding upon and
shall restrict the premises shown and designated as the Property herein,
more particularly bounded and described on Schedule "A" annexed hereto
and made a part of this instrument.
TO HAVE AND TO HOLD said Development Rights Easement and the
rights and interests in connection with it and as hereinafter set forth with
respect to the Property unto the Grantee, its successors and assigns forever,
reserving, however, for the direct use and benefit of the Grantor, its legal
representatives, successors and assigns, the fee title to the property, and
the exclusive right of occupancy and of use of the Property, subject to the
limitations, condition, covenants, agreements, provisions and use
restrictions hereinafter set forth, which shall constitute and shall be
servitudes upon and with respect to the Property.
The Grantor, for itself, and for and on behalf of its legal
representatives, successors and assigns, hereby covenants and agrees as
follows:
2
0.01 Grantor's Warrant
Grantor warrants and represents to the Grantee that Grantor is the
owner of the Property described in Schedule A, free of any mortgages or
liens as set forth in Stewart Title Insurance Company Title Report
#7122641, and possesses the right to grant this easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a
municipal corporation organized and existing under the laws of the State of
New York State and is authorized under §64 of Town Law and §247 of the
New York State General Municipal Law ("General Municipal Law") to acquire
fee title or lesser interests in land, including development rights, easements,
covenants, and other contractual rights which may be necessary or desirable
for the preservation and retention of agricultural lands, open spaces and
natural or scenic resources.
0.03 Purpose
The parties recognize the environmental, natural, scenic, agricultural,
and aesthetic values of the Property and have the common purpose of
preserving these values by limiting the uses of the Property. This
instrument is intended to convey a Development Rights Easement on the
Property by Grantor to Grantee, exclusively for the purpose of preserving its
character in perpetuity for its environmental, natural, scenic, agricultural,
and aesthetic values by preventing the use or development of the Property
for any purpose or in any manner contrary to the provisions hereof, in
furtherance of federal, New York State and local conservation policies.
0.04 Governmental Recognition
New York State has recognized the importance of private efforts to
preserve rural land in a scenic, natural, and open condition through
conservation restrictions by the enactment of General Municipal Law §247.
Similar recognition by the federal government includes §170(x1) of the
Internal Revenue Code ("IRC") and other federal statutes.
0.05 Baseline Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property are compatible with the
purposes of this Easement. In order to aid in identifying and documenting
3
the present condition of the Property's environmental, natural, scenic,
agricultural, and aesthetic resources and otherwise to aid in identifying and
documenting such values as of the date hereof, to assist Grantor and
Grantee with monitoring the uses and activities on the Property and ensuring
compliance with the terms hereof, Grantee has prepared, with Grantor's
cooperation, an inventory of the Property's relevant features and conditions
(the "Baseline Documentation"). This Baseline Documentation includes, but
is not limited to a survey prepared by Nathan Taft Corwin, III, Land
Surveyor, dated August 22, 2018, and a Phase 1 Environmental Site
Assessment dated September 25, 2018 by Cashin Technical Services, Inc.
Grantor and Grantee acknowledge and agree that in the event a
controversy arises with respect to the nature and extent of the Grantor's
uses of the Property or its physical condition as of the date hereof, the
parties shall not be foreclosed from utilizing any other relevant or material
documents, surveys, reports, photographs or other evidence to assist in the
resolution of the controversy.
0.06 Recitation
In consideration of the previously recited facts, mutual promises,
undertakings, and forbearances contained in this Development Rights
Easement, the parties agree upon its provisions, intending to be bound by it.
ARTICLE ONE
THE EASEMENT
1.01 Type
This instrument conveys a Development Rights Easement (herein
called the "Easement"). This Easement shall consist of the limitations,
agreements, covenants, use restrictions, rights, terms, and conditions
recited herein. Reference to this "Easement" or its "provisions" shall include
any and all of those limitations, covenants, use restrictions, rights, terms
and conditions.
1.02 Definitions
"Development Rights" shall mean the permanent legal interest and
right to prohibit or restrict the use of the Property for uses or purposes
consistent with the terms of this Easement, including agricultural production
as that term is presently referenced in §247 of the General Municipal Law
and/or defined in Chapter 70 of the Town Code of the Town of Southold (the
4
"Town Code" or "Code") now, or as they may be amended, and including the
production of crops, livestock and livestock products as defined in
§301(2)(a)-(j) of the New York State Agriculture and Markets Law
_ ("Agriculture and Markets Law"), now, or as said §301(2)(a)-(j) may be
amended, provided said amended provisions are inherently similar in nature
to those crops, livestock and livestock products included as of the date of
this Easement. No future restrictions in said laws and/or Code or limitation in
the definitions set forth in said laws and/or Code shall preclude a use that is
permitted under the current law and/or Code.
"Improvement" shall mean any addition to raw land, such as
structures, fences, wells or drainage.
"Lawn" shall mean an area of land on which grasses or other durable
plants are grown and maintained at a short height and principally used for
aesthetic or other purposes. Land that is in agricultural production,
including land in a fallow or otherwise idled manner, is not "Lawn."
"Riding Academy" shall mean a business use of a lot for any of the
following purposes: the letting of horses for hire to individuals or groups
whether supervised or unsupervised, horseback riding instruction or the
holding of horse shows or other equine events.
"Structure" shall mean anything constructed or erected on or under
the ground or upon another structure or building, including walkways.
Structures shall not include trellis, posts and wiring, farm irrigation systems,
nursery mats, or fencing necessary for agricultural operations or to mark the
boundaries of the Property, including without limitation fencing to keep out
predator animals, including deer. Approvals for those items listed in the
preceding sentence shall be as required by applicable provisions of the Town
Code.
1.03 Duration
This Easement shall be a burden upon and run with the Property in
perpetuity.
1.04 Effect
This Easement shall run with the Property as an incorporeal interest in
the Property, and shall extend to and be binding upon Grantor, Grantor's
agents, tenants, occupants, heirs, personal representatives, successors and
assigns, and all other individuals and entities and provides Grantee with the
right to administer, manage and enforce the Easement as provided herein.
5
The word "Grantor" when used herein shall include all of those persons or
entities. Any rights, obligations, and interests herein granted to Grantor
and/or Grantee shall also be deemed granted to each and every one of its
subsequent agents, successors, and assigns, and the word "Grantor and/or
Grantee" when used herein shall include all of those persons or entities.
ARTICLE TWO
SALE
GRANTOR, for of ONE MILLION SIX HUNDRED THREE THOUSAND
FOUR HUNDRED SIXTY-TWO AND 50/100 DOLLARS ($1,603,462.50) and
such other good and valuable consideration, hereby grants, releases, and
conveys to Grantee this Easement, in perpetuity, together with all rights to
enforce it. Grantee hereby accepts this Easement in perpetuity, and
undertakes to enforce it against Grantor.
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts, uses and
practices shall be prohibited forever upon or within the Property:
3.01 Structures
No structures may be erected or constructed on the Property except
after review by the Southold Town Land Preservation Committee ("Land
Preservation Committee") for consistency with the Purpose and other terms
of this Easement, and as permitted under other applicable provisions of the
Town Code and Sections 1.02 and 4.06 of this Easement.
3.02 Excavation and Removal of Materials: Mining
The excavating, regrading, scraping or filling of the Property shall be
prohibited, without the prior written consent of Grantee, including but not
limited to review by the Land Preservation Committee.
Mineral exploitation, and extraction of any mineral, including but not
limited to soil, gravel, sand and hydrocarbons, by any method, surface or
subsurface, is prohibited.
The removal of topsoil, sand, or other materials from the Property is
prohibited, nor shall the topography of the Property be changed, except in
6
connection with normal agricultural/horticultural activities, all of which shall
require the prior written consent of Grantee, including but not limited to
review by the Land Preservation Committee.
3.03 Subdivision
Except as provided in this Section 3.03, the Property may not be
further subdivided pursuant to Town Law §§265, 276 or 277 or §335 of the
Real Property Law, as they may be amended, or any other applicable State
or local law. "Subdivision" shall include the division of the portion of the
Property from which the development rights are acquired into two or more
parcels, in whole or in part.
Grantor may, subject to approval by the Planning Board of the Town of
Southold and as otherwise required by applicable law, modify or alter lot
lines between the Property and adjacent parcels, or subdivide the Property,
provided that all resulting parcels contain at least 10 acres of preserved
agricultural land subject to a development rights easement or other
conservation instrument.
Notwithstanding this Section 3.03, upon the death of Grantor, the
underlying fee interest may be divided by conveyance of parts thereof to
Grantor's executor, trustee, heirs or next of kin by will or operation of law.
3.04 Dumping
The dumping or accumulation of unsightly or offensive materials
including, but not limited to trash, garbage, sawdust, ashes or chemical
waste on the Property shall be prohibited. This prohibition shall exclude
materials used in the normal course of sound agricultural practices on the
Property, including fertilization, composting and crop removal.
3.05 Signs
The display of signs, billboards, or advertisements shall be prohibited,
except signs whose placement, number, and design do not significantly
diminish the scenic character of the Property and only for any of the
following purposes: (a) to state the name of the Property and the names
and addresses of the occupants and the character of the business conducted
thereon, (b) to temporarily advertise the Property or any portion thereof for
sale or rent, (c) to post the Property to control unauthorized entry or use, or
(d) with the consent of the Grantor, to announce Grantee's easement. Signs
are subject to regulatory requirements of the Town.
7
3.06 Utilities
The creation or placement of overhead utility transmission lines, utility
poles, wires, pipes, wells or drainage systems ("utilities") on the Property to
service structures approved pursuant to §4.06 shall be prohibited without
the prior written consent of the Grantee. Underground utilities must, to the
extent possible, be constructed within 30 feet of the centerline of any roads
or driveways, and may be used solely to service the permitted structures on
the Property. The Property may not be used for the creation or placement of
utilities to service any other properties.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, the use of the
Property or structures on it for any residential, commercial or industrial
uses, permanent or temporary, including but not limited to a riding
academy, shall be prohibited. For the purposes of this section, agricultural
production, as that term is presently referenced in §247 of the General
Municipal Law and/or defined in Chapter 70 of the Town Code, now, or as
said Chapter 70 may be amended and including the production of crops,
livestock and livestock products as defined in §301(2)(a)-(j) of the
Agriculture and Markets Law, now or as said §301(2)(a)-(j) may be
amended, provided said amended provisions are inherently similar in nature
to those crops, livestock and livestock products included as of the date of
this Easement, shall not be considered a commercial use.
Uses, improvements and activities permitted by the Town Code now or
in the future on agricultural lands protected by a development rights
easement or other instrument, including but not limited to farmstands, shall
not be considered a commercial use. No improvements, uses or activities
inconsistent with current or future agricultural production shall be permitted
on the Property. Under no circumstances shall athletic fields, golf courses or
ranges, commercial airstrips and helicopter pads, motorcross biking, or any
other improvements or activity inconsistent with current or future
agricultural production be permitted on the Property.
Grantor shall not establish or maintain a Lawn on the Property.
Hunting is permitted on the Property provided it does not interfere
with agricultural production and is conducted in accordance with agricultural
management practices.
8
3.08 Soil and Water
Any use or activity that causes or is likely to cause soil degradation or
erosion or pollution of any surface or subsurface waters shall be prohibited.
This prohibition shall not be construed as extending to agricultural
operations and practices (including, without limitation, the use of
agrochemicals such as fertilizers, pesticides, herbicides, and fungicides) that
are in accordance with sound agricultural management practices of the
Natural Resources Conservation Service ("NRCS").
3.09 Drainage
The use of the Property for a leaching or sewage disposal field shall be
prohibited. The use of the Property for a drainage basin or sump shall be
prohibited, except in accordance with sound agricultural management
practices and in order to control flooding or soil erosion on the Property.
3.10 Development Rights
The use of the acreage of this Property for purposes of calculating lot
yield on any other Property shall be prohibited. Grantor hereby grants to
Grantee all existing development rights (and any further development rights
that may be created through a rezoning of the Property) on the Property,
except for the right to construct, maintain and replace any pre-existing
structures, and to construct new structures, as such rights may be provided
in Section 4.06, and the parties agree that any other such development
rights shall be terminated and extinguished and may not be used or
transferred to any other parcels.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01_ Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain all
other rights of ownership in the Property, some of which are more
particularly described in this ARTICLE FOUR.
4.02 Possession
Grantor shall continue to have the right to exclusive possession of the
Property.
9
4.03 Use
Grantor shall have the right to use the Property in any manner and for
any purpose consistent with and not prohibited by this Easement, as well as
applicable local, State, or federal law. Grantor shall have the right to use
the Property for uses, improvements and activities permitted by the Town
Code, now or in the future, on agricultural lands protected by a development
rights easement or other instrument, including, but not limited to
farmstands and for educational or training programs related to agricultural
production or activities.
Grantor shall also have the right to use the Property for traditional
private recreational uses, provided such recreational uses are conducted for
the personal enjoyment of Grantor, are compatible with farming, and are
otherwise consistent with and do not derogate from or defeat the Purpose of
this Easement or other applicable law. These uses shall not be offered or
provided for commercial purposes, including the commercial gain of Grantor
or others.
4.04 Landscaping Activities
Grantor shall have the right to continue the current and/or customary
modes of landscaping, pruning and grounds maintenance on the Property as
evidenced by the documentation set forth in Section 0.05. Grantor shall
have the right to remove or restore trees, shrubs, or other vegetation when
dead, diseased, decayed or damaged or interfering with agricultural
production, to thin and prune trees to maintain or improve the appearance
of the property, and to mow the property. Notwithstanding the above,
Grantor is prohibited from establishing or maintaining a Lawn on the
Property, as set forth in 3.07.
4.05 Agricultural Production and Activities
Grantor shall have the right to engage in all types of agricultural
production as the term is presently referenced in §247 of the General
Municipal Law and/or defined respectively in Chapter 70 of the Town Code,
now, or as they may be amended, and including the production of crops,
livestock and livestock products as defined in §301(2)(a)-(j) of the
Agriculture and Markets Law, now, or as said §301(2)(a)-(j) may be
amended, provided said amended provisions are inherently similar in nature
to those crops, livestock and livestock products included as of the date of
this Easement. No future restriction in said laws and/or Code or limitation in
10
the definitions set forth in said laws and/or Code shall preclude a use that is
permitted under the current law and/or Code.
Grantor may offer "U-Pick" operations and/or the use of a corn maze
to the general public, provided that such activities are conducted in
conjunction with seasonal harvests, do not interfere with agricultural
production and are otherwise consistent with and do not derogate from or
defeat the Purpose of this Easement or other applicable laws.
Notwithstanding the definition of agricultural production in Chapter 70
of the Town Code or any successor chapter, structures shall be prohibited
except as set forth in Section 4.06 herein and as permitted by the Town
Code now or in the future on agricultural lands protected by a development
rights easement or other instrument, including but not limited to
farmstands.
4.06 Structures
A. Allowable Improvements. Grantor shall have the right to erect and
maintain the following improvements on the Property, as may be permitted
by the Town Code and subject to review by the Town of Southold Land
Preservation Committee, provided the improvements are consistent with and
do not derogate from or defeat the Purpose of this Easement or other
applicable laws:
(i) Underground facilities used to supply utilities solely for the
use and enjoyment of the Property;
(ii) New construction, including drainage
improvement structures, provided such structures are
necessary for, incidental and/or accessory to
agricultural production;
(iii) Renovation, maintenance and repairs of any
existing structures or structures built or permitted
pursuant to this Section 4.06, provided the primary
purpose of the structure remains agricultural.
B. Conditions. Any allowable improvements shall protect prime
agricultural soils, agricultural production, open space and scenic vistas, and
otherwise be consistent with the Purpose of this Easement.
li
C. Environmental Sensitivity During Construction. The use and
location of any improvement permitted hereunder shall be consistent with
the purposes intended herein, and construction of any such improvement
shall minimize disturbances to the environment. Grantor shall employ
.erosion and sediment control measures to mitigate any storm water runoff,
including but not limited to minimal removal of vegetation, minimal
movement of earth and minimal clearance of access routes for construction
vehicles.
D. Replacement of Improvements. In the event of damage resulting
from casualty loss to an extent which renders repair of any existing
improvements or improvements built or permitted pursuant to this Section
4.06 impractical, erection of a structure of comparable size, use, and general
design to the damaged structure shall be permitted in kind and within the
same general location, subject to the review and written approval of
Grantee, pursuant to applicable provisions of the Town Code.
4.07 Notice
Grantor shall notify Grantee, in writing, before the construction of any
permanent or temporary structures as permitted in Section 4.06 herein and
shall file all necessary applications and obtain all necessary approvals that
may be required by this Easement or by the Town Code and shall provide
documentation as may be required for such applications.
4.08 Alienability
. Grantor shall have the right to convey, mortgage or lease all of its
remaining interest in the Property, but only subject to this Easement.
Grantor shall promptly notify Grantee of any conveyance of any interest in
the Property, including the full name and mailing address of any transferee,
and the individual principals thereof, under any such conveyance. The
instrument of any such conveyance shall specifically set forth that the
interest thereby conveyed is subject to this Easement, without modification
or amendment of the terms of this Easement, and shall incorporate this
Easement by reference, specifically setting for the date, office, liber and
page of the recording hereof. The failure of any such instrument to comply
with the provisions hereof shall not affect Grantee's rights hereunder.
4.09 Further Restriction
Nothing in this Easement shall prohibit or preclude Grantor from
further restricting the use, improvements or structures on the Property. Any
12
such further restrictions shall be consistent with and in furtherance of the
general intent and purpose of this Easement as set forth in Section 0.03.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments and
other governmental or municipal charges, which may become a lien on the
Property, including any taxes or levies imposed to make those payments,
subject, however, to Grantor's right to grieve or contest such assessment.
The failure of Grantor to pay all such taxes, levies and assessments and
other governmental or municipal charges shall not cause an alienation of any
rights or interests acquired herein by Grantee.
5.02 Indemnification
Grantor shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or
any of its officers, employees, agents or independent contractors, all of
which shall be reasonable in amount, arising from injury due to the physical
maintenance or condition of the Property caused by Grantor's actions or
inactions, or from any taxes, levies or assessments upon it or resulting from
this Easement, all of which shall be considered Grantor's obligations.
5.03 Third Party Claims
Grantor shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, or expenses, charges or liens to Grantee
or any of its officers, employees, agents or independent contractors, all of
which shall be reasonable in amount, resulting: (a) from injury to persons or
• damages to property arising from any activity on the Property; and (b) from
actions or claims of any nature by third parties arising out of the entering
into or exercise of rights under this Easement, excepting any of those
matters arising solely from the acts of Grantee, its officers, employees,
agents, or independent contractors.
13
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee shall have the right to enter upon the Property at reasonable
times, upon prior notice to Grantor, and in a manner that will not interfere
with Grantor's quiet use and enjoyment of the Property, for the purpose of
inspection to determine whether this Easement and its purposes and
provisions are being upheld. Grantee shall not have the right to enter upon
the Property for any other purposes, except as provided in Section 6.02 and
6.03, or to permit access upon the Property by the public.
6.02 Restoration
Grantee shall have the right to require the Grantor to restore the
Property to the condition required by this Easement and to enforce this right
by any action or proceeding that Grantee may reasonably deem necessary.
However, Grantor shall not be liable for any changes to the Property
resulting from causes beyond the Grantor's control, including, without
limitation, fire, flood, storm, earth movement, wind, weather or from any
prudent action taken by the Grantor under emergency conditions to prevent,
abate, or mitigate significant injury to persons or to the Property or crops,
livestock or livestock products resulting from such causes.
6.03 Enforcement Rights of Grantee
Grantor acknowledges and agrees that Grantee's remedies at law for
any violation of this Easement may be inadequate. Therefore, in addition to,
and not as a limitation of, any other rights of Grantee hereunder at law or in
equity, in the event any breach, default or violation of any term, provision,
covenant or obligation on Grantor's part to be observed or performed
pursuant to this Easement is not cured by Grantor within ten (10) days'
notice thereof by Grantee (which notice requirement is expressly waived by
Grantor with respect to any such breach, default or violation which, in
Grantee's reasonable judgment, requires immediate action to preserve and
protect any of the agricultural-values or otherwise to further the purposes of
this Easement), Grantee shall have the right at Grantor's sole cost and
expense and at Grantee's election:
14
(i) To institute a suit to enjoin or cure such breach, default or
violation by temporary and/or permanent injunction,
(ii) To enter upon the Property and exercise reasonable efforts to
terminate or cure such breach, default or violation and/or to
cause the restoration of that portion of the Property affected by
such breach, default or violation to the condition that existed
prior thereto, or
(iii) To enforce any term provision, covenant or obligation in this
Easement or to seek or enforce such other legal and/or equitable
relief or remedies as Grantee deems necessary or desirable to
ensure compliance with the terms, conditions, covenants,
obligations and purposes of this Easement; provided, however,
that any failure, delay or election to so act by Grantee shall not
be deemed to be a waiver or a forfeiture of any right or available
remedy on Grantee's part with respect to such breach, default,
or violation or with respect to any other breach, default or
violation of any term, condition, covenant or obligation under
this Easement.
Grantor shall pay either directly or by reimbursement to Grantee, all
reasonable attorneys' fees, court costs and other expenses incurred by
Grantee (herein called "Legal Expenses") in connection with any proceedings
under this Section, as approved by the Court.
The cure period in this Section 6.03 may be extended for a reasonable
time by Grantee if such restoration cannot reasonably be accomplished
within ten (10) days.
6.04 Notice
All notices required by this Easement must be written. Notices shall be
delivered by hand or by certified mail, return receipt requested, with
sufficient prepaid postage affixed and with return receipts requested. Mailed
notice to Grantor shall be addressed to Grantor's address as recited herein,
or to such other address as Grantor may designate by notice in accordance
with this Section 6.04. Mailed notice to Grantee shall be addressed to its
principal office recited herein, marked to the attention of the Supervisor and
the Town Attorney, or to such other address as Grantee may designate by
notice in accordance with this Section 6.04. Notice shall be deemed given
and received as of the date of its manual delivery or three business days
after the date of its mailing.
15
6.05 No Waiver
Grantee's exercise of one remedy or relief under this ARTICLE SIX
shall not have the effect of waiving or limiting any other remedy or relief,
and the failure to exercise or the delay in exercising any remedy shall not
constitute a waiver of any other remedy or relief or the use of such other
remedy or relief at any other time.
6.06 Extinguishment of Easement/Condemnation
At the mutual request of Grantor and Grantee, a court with jurisdiction
may, if it determines that conditions surrounding the Property have changed
so much that it becomes impossible to fulfill the Purpose of this Easement
described in Section 0.03, extinguish or modify this Easement in accordance
with applicable law. The mere cessation of farming on the Property shall not
be construed to be grounds for extinguishment of this Easement.
If at any time the Property or any portion thereof shall be taken or
condemned by eminent domain, by the Grantee or by any other
governmental entity, then this Easement shall terminate with respect to the
Property, or portions thereof so taken or condemned, and the Property shall
not be subject to the limitations and restrictions of this Easement. In such
event, the Grantor, its successors or assigns, shall not be required to pay
any penalties, but the value of the Property shall reflect the limitations of
this Easement. Any condemnation award payable to the Grantor shall be in
proportion to the value attributable to the residual agricultural value of the
Property. If the condemnation is undertaken by an entity other than the
Grantee, then the remaining portion of the condemnation award shall be
payable to the Grantee in proportion to the value attributable to the
development rights transferred hereby.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between its parties
concerning its subject matter. Any prior agreement between the parties
concerning its subject matter shall be merged into this Easement and
superseded by it.
16
7.02 Amendment
This Easement may be amended only with the written consent of
Grantee and current Grantor and in accordance with any applicable State
and local laws. Any such amendment shall be consistent with the Purpose of
this Easement and shall comply with the Town Code and any regulations
promulgated hereunder and shall be duly recorded.
This Easement is made with the intention that it shall qualify as a
Conservation Easement in perpetuity'under Internal Revenue Code §170(h).
The parties agree to amend the provisions of this Easement if such
amendment shall be necessary, to entitle Grantor to meet the requirements
of §170(h). Any such amendment shall apply retroactively in the same
manner as if such amendment or amendments had been set forth herein.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be alienated
except pursuant to the provisions of Chapter 70 of the Town Code or any
successor chapter and other applicable laws, upon the adoption of a local law
authorizing the alienation of said rights and interest, following a public
hearing and, thereafter, ratified by a mandatory referendum by the electors
of the Town of Southold. No subsequent amendment of the provisions of the
Town Code shall alter the limitations placed upon the alienation of those
property rights or interests which were acquired by the Town prior to any
such amendment.
In addition to the limitations set forth above, Grantee shall have the
right to transfer all or part of this Easement to any public agency, or private
non-governmental organization, that at the time of transfer is a "qualified
organization" under §170(h) of the Internal Revenue Code, provided that
transferee expressly agrees to assume the responsibility imposed on the
Grantee by this Easement.
Any such easement transfer must be approved by the Grantor or any
subsequent owner. If the Grantee ever ceases to exist, a court of competent
jurisdiction may transfer this Easement to another qualified public agency
that agrees to assume the responsibilities imposed by this Easement.
17
7.04 Severability
Any provision of this Easement restricting Grantor's activities, which is
determined to be invalid or unenforceable by a court shall not be invalidated.
Instead, that provision shall be reduced or limited to whatever extent that
court determines will make it enforceable and effective. Any other provision
of this Easement that is determined to be invalid or unenforceable by a court
shall be severed from the other provisions, which shall remain enforceable
and effective.
7.05 Governing Law
New York law applicable to deeds to and easements on land located
within New York shall govern this Easement in all respects, including validity,
construction, interpretation, breach, violation and performance.
7.06 Interpretation
Regardless of any contrary rule of construction, no provision of this
Easement shall be construed in favor of one of the parties because it was
drafted by the other party`s attorney. No alleged ambiguity in this Easement
shall be construed against the party whose attorney drafted it. If any
provision of this Easement is ambiguous or shall be subject to two or more
interpretations, one of which would render that provision invalid, then that
provision shall be given such interpretation as would render it valid and be
consistent with the purposes of this Easement. Any rule of strict construction
designed to limit the breadth of the restrictions on use of the Property shall
not apply in the construction or interpretation of this Easement, and this
Easement shall be interpreted broadly to affect the purposes of this
Easement as intended by the parties. The parties intend that this Easement,
which is by nature and character primarily negative in that Grantor has
restricted and limited his right to use the Property, except as otherwise
recited herein, be construed at all times and by all parties to effectuate its
purposes.
7.07 Public Access
Nothing contained in this Easement grants, nor shall it be interpreted
to grant, to the public, any right to enter upon the Property, or to use
images of the Property. Grantee may use images of the Property only for
non-commercial reporting of this Easement.
18
7.08 Warranties
The warranties and representations made by the parties in this
Easement shall survive its execution.
7.09 Recording
Grantee shall record this Easement in the land records of the office of
the Clerk of the County of Suffolk, State of New York.
7.10 Headings
The headings, titles and subtitles herein have been inserted solely for
convenient reference and shall be ignored in its Construction.
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee
has accepted and received this Grand of Development Rights Easement on
the day and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
By: �§"
Richard James McBride, Seller
By: h6zj �7 Y�'j-
James Michael McBride, S Iter
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUTHOLD, Grantee
BY: jwr4z� -Twomey) La+harm, Shm �1
Scott"A. Russell, Supervisor -Do bi0�&0�(+a(a(01LLF
5'. o93,DDAftn. LimClefK� kmb4VIESb
g. az.oil 33c.��-�onds�-r�f
j-72LQqI L. p!teiDbD
on Q
19 "Twm= 50g- {no 1(�
STATE OF NEW YORK)
COUNTY OF SUFFOLK), SS:
On the L(�--Vay of December in the year 2018 before me, the undersignec; personally
appeared Richard James McBride, 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 me 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.
Signatur%fce of individual taking acknowledgement
TARA M.DOWD
Notary pubic,Stats of New York
STA TE OF NEW YORK) Reg.No.01 D06070607
COUNTY OF SUFFOLK), SS.• co �E 0�ZZ
On the �day of December in the year 2018 before me, the undersigned, personally
appeared James Michael McBride, 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 me 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.
Signature/office of individual taking acknowledgement
TARA M.DOWD
Notary PJft State of New York
Reg.Na 01 D06070607
OLo fled in$uf7oac County
STA TE OF NEW YORK ) mon Expires 036VXQZ/
COUNTY OF SUFFOLK ) SS.'
On this l t ay of December in the year 2018 before me, the undersigned,
personally appeared Scott A. Russell, 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 me 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.Lr '
(avw L
Signatur% l ofindividual taking acknowledgement
TARA M.DOWD
Notary Polk,State of New York
Reg.Na 01 DM70607
20 0uWhW in SO*Caxity
Commission Expires 03*4r20'��
Stewart I.I a Title Number: 7122641
SCHEDULE A— DESCRIPTION
AMENDED 12112/2018
DEVELOPMENT RIGHTS EASEMENT AREA TO BE INSURED:
All that certain plot,piece or parcel of land, with the buildings and improvements thereon erected,
situate, lying and being at Cutchogue,Town of Southold, County of Suffolk and State of New York,
bounded and described as follows:
BEGINNING at a point on northerly side of Oregon Road being 977.04 feet easterly from the corner form
by the intersection of northeasterly side of Duck Pond Road and northerly side of Oregon Road;
RUNNING THENCE northwesterly from said point of beginning and along northerly line of lands now or
formerly of E & C Property Holding LI Inc., North 42 degrees 24 minutes 02 seconds West 382.82 feet to
the True point of BEGINNING.
RUNNING THENCE along the division line between premises described herein and lands now or
formerly of E & C Property Holding If Inc., North 42 degrees 24 minutes 02 seconds West 2,128.04 feet to
a point,where the same is intersected by the division line between premises herein and lands now or
formerly of E &C Property Holding;
RUNNING THENCE along said division line South 89 degrees 10 minutes 42 seconds East.724.62 feet to
a point,where the same is intersected by the division line between premises herein and lands now or
formerly of Steven Zuhoski&David Zuhoski County of Suffolk(Development Rights);
RUNNING THENCE along said division line Soutb 4d degrees 28 minutes 48 seconds East 1,611.57 feet
to a point;
RUNNING THENCE southwesterly South 45 degrees 31 minutes 12 seconds West 586.90 feet to the
point or place of BEGINNING.
FOR INFORMATION ONLY: RESERVE AREA
All that certain plot,piece or parcel of land, with the buildings and improvements thereon erected,
situate, lying and being at Cutchogue,Town of Southold, County of Suffolk and State of New York,
bounded and described as follows:
BEGINNING at a point on northerly side of Oregon Road being 977.04 feet easterly from the corner form
by the intersection of northeasterly side of Duck Pond Road and northerly side of Oregon Road;
FOR CONVEYANCING ONLY:TOGETHER with all right,title and interest of the party of the first part,of,in and to any streets and
rads abutting the above described premises to the center lines thereof.
Schedule A Description(Page 1 of 3)-
stewart tatie Title Number: 7122641
RUNNING THENCE from said point of beginning along the division line between premises described
herein and lands now or formerly of E&C Property Holding II Inc. North 42 degrees 24 minutes 02
seconds West 382.82 feet to a point;
RUNNING THENCE northeasterly North 45 degrees 31 minutes 12 seconds East 586.90 feet to a point
on the division line between premises herein and lands now or formerly of Steven Zuhoski&David
Zuhoski County of Suffolk(Development Rights);
RUNNING THENCE along said division line and along the division line with lands now or formerly of
Steven Zuhoski&David Zuhoski,and lands now and formerly of Lucille Zuhoski,South 44 degrees 28
minutes 48 seconds East 651.97 feet to appoint on northerly side of Oregon Road;
RUNNING THENCE southwesterly along northerly side of said Oregon Road, South 69 degrees 40
minutes 20 seconds West 250.00 feet to a point;
RUNNING THENCE North 20 degrees 19 minutes 40 seconds West 165.00 feet to a point;
RUNNING THENCE South 69 degrees 40 minutes 20 seconds West 255.00 feet to a point;
RUNNING THENCE South 20 degrees 19 minutes 40 seconds East 165.00 feet to a point on northerly
side of Oregon Road;
RUNNING THENCE southwesterly along northerly side of said Oregon Road,South 69 degrees 40
minutes 20 seconds West 153.43 feet to the point or place of BEGINNING.
FOR CONVEYANCING ONLY:TOGETHER with all right,title and interest of the party of the first part,of,in and to any streets and
roads abutting the above described premises to the center lines thereof.
-Schedule A Description(Page 2 of 3)-
------------------- - -------------- x � 1_T__.�
,r r`
•a 72i 2� \� �' i
E y d ���JI N1.'}_•VAP
o,
- f
SURVEY OF PROPERTY
S TUA M
SOUTHOLD
TOWN OF SOUTH04D
I SUFTOLK COUNTY, NEW YORK
S.C. TAX No. 7009-83-02-ifi
SALE 1'1$10'
AUCUS7 72.:!116
1
—1AL lAl AREA a 1.300J 23 a�.1!,
29.fi62 ac.
i
I ;�� CGrt17lJL9-:G_
R[YELDFW_NT R:C,N;S FA.ENCNT AREA y
1,034,71"aq 11.
23.:55 ec.
E
{
#4F
J
' 9LSLPYL ARCA
2GR,0_9 gyp. Sl.
✓CEEMTAL— 6.iC7 ec.
It I
5,69'.
/eel,
`
------------
ii
� � r � ��•Aa'2c'w
•',�i' �.� 1� �•� Iii .'✓� w.,.. .
` 4 '
vx
a Land-%4zv9 Dr�7 W
69
m;.d-J .�,.. .. .,.�