HomeMy WebLinkAboutL 13073 P 332 I I I l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l
111111 IIIII IIIII IIII 1111
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT Recorded: 10/01/2020
Number of Pages: 46 At: 11 : 33 : 39 AM
Receipt Number : 20-0154689
TRANSFER TAX NUMBER: 20-06370 LIBER: D00013073
PAGE : 332
District: Section: Block: Lot:
1000 055 . 00 02 . 00 009 . 004
EXAMINED AND CHARGED AS FOLLOWS
Deed Amount: $0 . 00
Received the Following Fees For Above Instrument
Exempt Exempt
Page/Filing $230 . 00 NO Handling $20 . 00 NO
COE $5 . 00 NO NYS SRCHG $15 . 00 NO
TP-584 $10 . 00 NO Notation $0 . 00 NO
Cert.Copies $0 . 00 NO RPT $200 .00 NO
Transfer tax $0 . 00 NO Comm.Pres $0 . 00 NO
Fees Paid $480 . 00
TRANSFER TAX NUMBER: 20-06370
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
JUDITH A. PASCALE
County Clerk, Suffolk County
oa
GI RECORDED
Number of pages t 2020 Oct- 01 11:33:39 AM
UDITH A. PASCALE
CLERK OF
SUFFOLK COUNTY
This'document will be public L D00013073
record. Please remove all 3=2
Social Security Numbers r'T#{ 213-063170
prior to recording.
Deed/Mortgage Instrument Deed I Mortgage Tax Stamp Recording I Filing Stamps
3 1 FEES
Page/Filing Fee !/✓0 Mortgage Amt.
1. Basic Tax
Handling 20, 00 2. Additional Tax
TP-584 �v ��_ Sub Total —
Notation SpeclAssit.
— or ,
EA-52 17(County) Sub Total ZCO 4 Spec,/Add. —
EA-5217(State) \_ TOT.MTG.TAX
Dual Town Dual County—
R.P.T.S.A.
� Held for Appointment
Comm,of Ed. 5. 00 Transfer Tax _
Affidavit ���+ Mansion Tax
Certified Co The property covered by this mortgage is
Copy or will be improved by a one or two
NYS Surcharge 15. 00 �� family dwelling only, w
Sub Total 2 YES or NO
Other C
Grand Total / Q � If NO,see appropriate tax clause on
page# of this instrument.
Fh-F IZd
4 1 Dist. F 5 Community Preservation Fund
4231459 1000 05500 0200 009004
Real Property/L Consideration Amount$
Tax Service RP MIA CPF Tax Due/ $
Agency
Verification 22SEP40
_ _ _ Improved
6 Satisfactions/Dischargesikeleases List Property Owners Mailing Address
RECORD&RETURN TO: _ Vacant Land
TD
730 L),e'q,�r°;a,� 9G� TD
Mail to: Judith A. Pascale, Suffolk County Clerk 7 Title ComDanv Information
310 Center Drive, Riverhead, NY 11901 Co.Name. 4G`'IT,6'S 196Z57-e4C7—
www.suffolkcountyny.gov/clerk Title : A' 11 - I6 3 2
8 Suffolk County Recording & Endorsement Page_
This page forms part of the attached �cSF� .Jgv�t,U/ made by:
(SPECIFY TYPE OF INSTRUMENT)
Re The,premises herein is situated in
SUFFOLK COUNTY,NEW YORK,
TO In the TOWN of
pe-e 0 4/6 Z,q�1 ) 'boi6—/j( In the VILLAGE
or HAMLET of
BOXES 6 THRU 8 MUST BE TYPED OR PRINTF,D IN BLACK TNK ONT Y'PRTOR TO RECORDING OR FILING.
i
DEED OF CONSERVATION EASEMENT
WITH AFFIRMATIVE FARMING COVENANT AND
AFFORDABLE FARMING COVENANT AND RESALE RESTRICTIONS
THIS DEED OF CONSERVATION EASEMENT WITH AFFIRMATIVE FARMING
COVENANT AND AFFORDABLE FARMING COVENANT AND RESALE RESTRICTIONS
(hereinafter referred to as this "Conservation Easement" or"Easement"), is made the /F day of
Dews T , 2020 ("Effective Date"), at Southampton, New York. The parties are OLDE
ROAD FARM LLC, a New York limited liability company, having an address of 104 Wetherill
Road, Garden City, NY 11530 (herein called "Grantor"), and the PECONIC LAND TRUST,
INCORPORATED, a not-far-profit New York Corporation, having a principal office at 296
Hampton Road, P.O. Box 1776, Southampton, New York 11969 (herein called "Grantee").
INTRODUCTION
WHEREAS, Grantor is the sole owner in fee simple of 19.2-acres of certain real property
located at 4280 Youngs Avenue in the Town of Southold, Suffolk County, New York, more fully
described in SCHEDULE A and shown on the Conservation Easement Map marked EXHIBIT A,
both attached hereto and incorporated herein by this reference (hereinafter referred to as the
"Property"); and
a
WHEREAS, the Property is free of any mortgages or liens and Grantor possesses the right to
grant this Easement;and
WHEREAS, the Property (i) is located in the AC Zoning District of the Town of Southold
and, (ii) is further identified as SCTM # 1000-55-2.0-9.4; and
WHEREAS, the Property is encumbered with a Deed of Development Rights granted to the
Town of Southold and recorded in the office of the Suffolk County Clerk on December 4, 1992, at
Liber 11584, Page 191 ("DDR"), that extinguished the residential development rights and permits,
requires or restricts the use of the Property exclusively for agricultural production as the term was
defined in Chapter 25 of the Southold Town Code as of the date of the DDR, and the right to
prohibit or restrict the use of the premises for any purposes other than agricultural production, as
such DDR was amended by that certain Agreement for Modification of Restrictions, executed on
June 5, 1997, and recorded in the office of the Suffolk County Clerk on June 12, 1997, at Liber 11835,
Page 229; and
WHEREAS, Grantee is a publicly supported nonprofit charitable organization under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
promulgated thereunder, and incorporated under the Not-For-Profit Corporation Law of New York
State for the purpose of conserving and preserving the unique environmental, agricultural, scenic
1
and open-space values of lands located in New York State, and is therefore a "qualified
organization" within the meaning of Section 170(h)(3) of the Code; and
WHEREAS, the Property is currently in agricultural production with mixed vegetables; and
WHEREAS, Grantor wishes to further encumber the Property for the public benefit by
granting this Conservation Easement that includes an "Affirmative Farming Covenant" and an
"Affordable Farming Covenant with Resale Restrictions," as provided herein, on the Property so
that the Property shall remain in its agricultural, open, undeveloped, and scenic state and shall be
further restricted for food production purposes in perpetuity; and
WHEREAS, the Property possesses agricultural, scenic, open-space values(the Property's
"Conservation Values") of great importance to Grantor, Grantee, and the people of the Town of
Southold, Suffolk County and State of New York; and
WHEREAS, protection of the Conservation Values by the terms of this Easement serves the
following conservation purposes:
A. Preservation of the Property's agricultural resources so it is available as a working
open space landscape for the agricultural industry in perpetuity, which yields
significant public benefit.
(1) 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
(2) the Property is part of the New York State Agricultural District#1, and Grantor
wishes to continue using the Property in an agricultural capacity; and
(3) as preserved farmland, the Property contributes to the Town of Southold's
agricultural heritage and is integral to the economy according to the 2019 Town Code
of the Town of Southold, Chapter 9; and it is the policy of the Town of Southold,
articulated in the Town's Master Plan of 1973, amended in 1986 and 1989 as adopted
by the Town Board, Town of Southold Code, Section 272-a of the Town Law, to
protect environmentally sensitive areas, to preserve prime agricultural soils, to
protect the scenic and open space character of the Town and to protect the Town's
resort and agricultural economy; and
(4) The Property is part of the New York State Agricultural Individual Commitment
program, and Grantor wishes to continue using the Property in an agricultural
capacity and as scenic open space; and
B. Preservation of open space for the scenic enjoyment of the general public, which
yields significant public benefit. Protection of the Property's open space through this
2
Easement will be for the scenic enjoyment of the general public and will yield significant
public benefit, and is therefore consistent with the requirements of Section 170(h)(4)(A)(iii)(I)
of the Code for the following reasons:
(1) the Property has a total of 1,082 feet of frontage on the publicly
accessible/publicly passable/navigable Youngs Avenue in Southold which offers the
public significant, scenic vistas from a public highway and across the Property; and
C. Preservation of open space pursuant to clearly delineated governmental conservation
policy, which yields significant public benefit. Protection of the Property through this
Easement will achieve the preservation of open space pursuant to clearly delineated
governmental conservation policy which will yield significant public benefit, and is therefore
consistent with the requirements of Section 170(h)(4)(A)(iii)(11) of the Code for the following
reasons:
State Legislation:
(1) New York State has recognized the importance of not-for-profit conservation
organizations' efforts to preserve land in a scenic, natural and open condition
through conservation easements by enactment of the Environmental Conservation
Law, Section 49-0301 et seri.; and
(2) Article 14, Section 4, of the New York State Constitution states that "the policy of
this state shall be to conserve and protect its natural resources and scenic beauty and
encourage the development and improvement of its agricultural lands for the
production of food and other agricultural products"; and
(3) the Property is part of the New York State Agricultural Individual Commitment'
Program, and the Grantor wishes to continue using the Property in an agricultural
capacity and as scenic open space; and
WHEREAS, Grantor and Grantee recognize the value and special character of the region in
which the Property is Iocated, and Grantor and Grantee have, in common, the purpose and objective
of protecting and conserving the present state and inherent, tangible and intangible Conservation
Values of the Property as an agricultural, aesthetic, natural and scenic resource; and
WHEREAS, Grantor has determined that the conveyance of this Easement will be desirable
and beneficial and has requested Grantee, for itself and its successors and assigns, to accept this
grant of a Conservation Easement in order to restrict the development of the Property while
permitting uses compatible with the protection of the Property's Conservation Values and requiring
that the Property remain in productive agricultural use in perpetuity.
NOW, THEREFORE, in consideration of the recited facts, mutual promises, undertakings,
and forbearances contained in this Easement and other valuable consideration, but as a donation
nonetheless, and pursuant to the laws of the State of New York and in particular Title 3 of the New
3
York Environmental Conservation Law, Grantor hereby voluntarily conveys in perpetuity to
Grantee, and Grantee hereby accepts, this Conservation Easement, the parties intending to be bound
by its terms.
0.01 Purpose
The parties recognize the Conservation Values of the Property and have the common
purpose of preserving and protecting these Conservation Values in perpetuity. This Conservation
Easement is granted by Grantor to Grantee for the purpose of preserving and protecting its
Conservation Values in perpetuity (collectively, the "Conservation Purpose") by preventing any use
or development of the Property for any purpose or in any manner contrary to the intent and
provisions hereof, including the Conservation Purpose.
0.02 Grantee's Warr
Grantee warrants and represents that it possesses the resources and commitment to enforce
the terms of this Easement on the Property, and that the Property satisfies the criteria adopted by
Grantee relating to the quality and characteristics of open land whose conservation values should be
protected and maintained, as determined by the Peconic Land Trust Board of Directors at a duly
constituted meeting of that Board on May 18, 2020.
0.03 Documentation
Grantor has made available to Grantee sufficient documentation to establish the condition of
the Property as of the Effective Date of this Easement. In order to aid in identifying and
documenting the condition of the Property's natural, wildlife, watershed, scenic, agricultural, and
aesthetic resources and otherwise to aid in identifying and documenting the Property's
Conservation Values as of the Effective Date, to assist Grantor and Grantee with monitoring the uses
and activities on the Property, and to ensure 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") as of the Effective Date hereof. This Baseline
Documentation includes a Conservation Easement Map marked EXHIBIT A attached hereto, an
aerial photograph, photographs of the Property, a topographical map, a description and site plan of
land uses, features and structures, an inventory of flora and/or fauna, or other natural or ecological
features of the Property prepared by an outside expert, an Agricultural Conservation Plan (as
defined and further described in Section 5.01 below, if applicable), and an acknowledgment page
signed by Grantor and Grantee which verifies that the Baseline Documentation report accurately
represents the condition of the Property as of the Effective Date. Copies of the Baseline
Documentation shall be retained safely by Grantor and Grantee. 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 Effective Date, the parties shall not
be precluded from utilizing any other relevant or material document, survey, report, photograph, or
other evidence to assist in the resolution of the controversy.
4
ARTICLE ONE
THIS EASEMENT
1.01_ Type
This instrument conveys a conservation easement in gross under the provisions of Article 49,
Title 3 of the Environmental Conservation Law of the State of New York. This Conservation
Easement shall consist of the covenants, restrictions, rights, terms, and conditions recited herein.
Reference to this "Easement," "Conservation Easement," or its "provisions" shall include any and
all of those covenants, restrictions, rights, terms and conditions.
1.02 Duration
This Easement shall be a burden upon and run with the Property in perpetuity.
1.03 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. The word "Grantor" when used herein shall include all of
those persons or entities. Any rights, obligations, and interests herein granted to Grantee shall also
be deemed granted to each and every one of its subsequent permitted agents, successors, and
assigns, and the word "Grantee" when used herein shall include all of those persons or entities.
ARTICLE TWO
DEFINITIONS
For purposes of this Easement, the following terms will be given the meanings set forth
below:
2.01 Agricultural Activities — The term "Agricultural Activities" shall be given the meaning set
forth in Section 4.01 below.
2.02 Agricultural Conservation Plan — The term "Agricultural Conservation Plan" shall be
given the meaning set forth in Section 5.01 below.
2.03 Commercial Agricultural Activities — The term "Commercial Agricultural Activities"
means any permitted Agricultural Activity that results in a substantial portion of those crops,
livestock and livestock products cultivated,grown,raised,and/or produced on the Property being
sold, traded,or otherwise exchanged, and/or consumed as food by livestock that is used for either
director indirect food consumption as part of a commercial agricultural enterprise.
2.04 Crops, livestock and livestock products — The term "crops, livestock and livestock
products" means those agricultural uses as the terms are presently defined in § 301 of the New
5
York State Agriculture and Markets Law (as amended, pursuant to the terms of Section 4.01
herein).
2.05 Development Rights — The term "Development Rights" means the permanent legal interest
and right to prohibit or restrict the use of the Property for anything other than those uses that are
permitted under the terms of this Easement, including but not limited to permitted Agricultural
Activities.
2.06 Equestrian Use — The term "Equestrian Use" means to use land, and erect Structures
thereon, for the purpose of boarding, breeding, raising and training horses or other equines
in but not limited to, riding academies or equine events, such as rodeos, horse shows or
polo matches where spectators are expected to attend.
2.07 Fallow — The term "Fallow" means land that is plowed and harrowed but left unsown (or
otherwise not used for Agricultural Activity) for a temporary period not exceeding two (2)
consecutive years in order to restore its fertility as part of a crop rotation or to avoid surplus
production. All such lying fallow of land shall be in consideration of the Agricultural
Conservation Plan. Fallow shall also include any period in which the Property or any portion
thereof is quarantined by New York State, Suffolk County or similar governmental agency.
2.08 Family — The term "Family" means (1) Grantor's spouse; (2) Grantor's children; (3)
Grantor's grandchildren; (4) Grantor's siblings, together with any spouses and children; (4) a
corporation, partnership, or other legal entity which is wholly owned and controlled by Family
members as defined above;or(5) a trust or other estate planning entity,of which Family members
are the sole beneficiaries.
2.09 Food and Food Products — The term "Food and Food Products" means all articles of food,
drink,confectionary or condiment,whether simple,mixed or compound,used or intended for use
by humans or animals, and shall also include all substances and ingredients to be added to food
for any purpose as the term is defined by § 2 of the New York State Agriculture and Markets Law
as of the Effective Date of this Easement.
2_10 Housingfor or Agricultural Labor — The term "Housing for Agricultural Labor" means a
dwelling and/or group quarter used to provide housing for.regular and essential employees and
their immediate families who are primarily employed in .connection with the subject farm
operation.
2.11 Production of Foods — The term "Production of Foods" or "Food Production" means the
cultivation, growing, raising, and/or .production of Food and Food Products, including but not
limited to row crops for consumption as food by livestock for either direct consumption, such as
beef cattle, or indirect consumption, such as dairy cows for the production of milk and milk
products or chickens for the production of eggs. The cultivation, growing, raising, or production
of row crops for consumption as food by livestock that is not used for either direct or indirect food
consumption, such as horses, is not within the meaning of Food Production.
6
2.12 Qualified Farmer — A "Qualified Farmer" is a person or legal entity that meets some or all of
the following criteria: (i) whose aggregate agricultural operations meet the qualifications necessary
to keep the Property enrolled in the NYS Agricultural District and the NYS Agricultural Assessment
Program based on those qualification criteria existing at the time that eligibility as a Qualified Farmer
is determined; (ii) may reasonably be expected to earn more than one-half of his, her, or its annual
adjusted gross income from the "business of farming," as farming is defined in Treasury Regulation
Section 1.175-3 (or any successor regulation); and (iii) expects to devote substantially full-time to
farming operations including on the Property (in the case of an entity operator, substantially full-
time for each of its principal employees). Notwithstanding the foregoing, Grantee shall have the
discretion to make the final determination of the qualification of a proposed operator, lessee, or
purchaser as a Qualified Farmer in consideration of the above criteria and based upon such other
factors including, but not limited to, the submission to Grantee of a business plan and evidence of
demonstrated farming experience and/or training and any other factors Grantee deems significant
to ensure that the Property remains in active agricultural production and used solely for agricultural
purposes.
2.13 Riding Academy — A "Riding Academy" is 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.
2.14 Special Events — "Special Events" shall have the meaning set forth in Chapter 205-2 of the
Town Code, as amended from time to time.
2.15 Structure — A "Structure" is anything constructed, placed, or erected on or under the
ground or upon another structure or building, including but not limited to berms, driveways, or
walkways.
ARTICLE THREE
PROHIBITED USES AND ACTIVITIES
Grantor's use and development of the Property shall be consistent with the Conservation
Purpose and compatible with the preservation of the Property's Conservation Values. Without
limiting the generality of the foregoing, the following uses and practices, though not an exhaustive
recital of inconsistent uses and practices, are inconsistent with the Conservation Purpose of this
Easement and, unless otherwise explicitly provided herein, are prohibited anywhere on the
Property.
3.01 Buildings and Structures
Except as provided in Article Four of this Easement, the construction or placement of any
residential, commercial, industrial, or other Structure or improvement of any kind or nature
(including, but not limited to one or more mobile homes), whether permanent or temporary, on,
over, or under the Property, is prohibited, except as provided in Section 4.04.
3.02 Excavation and Removal of Materials;Mining
7
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. Grantor shall not
remove or fill topsoil, sand, or any other materials, nor shall the topography of the Property be
changed except in connection with the construction and maintenance of any Structure or
improvement expressly permitted to be placed, or constructed on the Property, under the terms of
Article Four below. Grantor may remove topsoil, sand or other materials for purposes of erosion
control and soil management only with the prior written approval of Grantee.
3.03 Subdivision
For purposes of this Easement, the Property is considered and shall remain one (1) parcel in
unified ownership. Grantor shall not subdivide, de facto subdivide, partition or seek the partition,
or otherwise divide the Property into separately conveyable parcels.
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 is prohibited. This prohibition
shall exclude the deposition of materials used on the Property for, or resulting from, the conduct of
sound Agricultural Activities in accordance with Section 4.01 below.
3.05 Signs
The display of any sign, billboard, or advertisement is prohibited, except as expressly
permitted in Section 4.02 below.
3.06 Residential Commercial or Industrial Uses
Except for Agricultural Activities and Commercial Agricultural Activities, the use of the
Property for any permanent or temporary residential, commercial, or industrial use shall be
prohibited, including but not limited to any of the following activities:any commercial recreational
use;Riding Academy;Equestrian Use of any kind;vineyards;production of horticultural specialties
that result in the removal of soil from the Property, including, but not limited to, ball and burlap
nursery, tree-farming, and sod farming; wireless communication towers; and Special Events, but
excepting Housing for Agricultural Labor as defined in Section 2.10 above, which may be allowed
subject to prior written approval of Grantee as well as any other written approval required by the
Town and/or other governmental agency.
3.07 Cutting of Timber
The cutting or harvesting of trees on the Property is prohibited, except as expressly
permitted in Section 4.03 below.
8
3.08 Soil and Water
Any use or activity that is not otherwise expressly or conditionally permitted under this
Easement which causes or is likely to cause soil degradation or erosion or pollution of any surface or
subsurface waters is prohibited.
3.09 Ponds and Watercourses
The alteration of any watercourse located on the Property or the creation of any new water
impoundment or watercourse is prohibited without Grantee's prior written approval, which
approval will not be unreasonably withheld if the alteration or creation is reasonably necessary for
the conduct of sound Agricultural Activities in accordance with Section 4.01 below.
3.10 Landscaping Activities
The removal of any tree, shrub, or other vegetation from the Property is prohibited, except as
expressly permitted in Section 4.03 below.
3.11 Vegetation Management and Screening
The placement of any landscape screening, hedgerow, or any other type of screening along
or near Youngs Avenue that blocks or detracts from the scenic viewshed of the Property from
Young's Avenue is prohibited, except deer fencing and hedgerows as may be reasonably necessary
for agricultural purposes.
3.13 Utilities
The creation or placement of overhead utility transmission lines, utility poles, wires, pipes,
wells or drainage and septic systems on the Property is prohibited without the prior written consent
of the Grantee. The repair or replacement of existing pipes, wells or drainage and septic systems on
the Property are allowed without the prior written consent of the Grantee. Overhead utility
transmission lines on the Property must, to the extent possible, be installed within 30 feet of the
centerline of roads or driveways, and may be used solely to service the Structures or improvements
permitted on the Property by this Easement.
3.14 DrainpZe
The use of any portion of the Property for a leaching or sewage disposal field is prohibited,
except to service the Structures and improvements expressly permitted by this Easement. The use of
the Property for a drainage basin or sump is prohibited, except to control flooding or soil erosion on
the Property.
9
3.15 ATVs
The use of recreational all-terrain or off-road vehicles is prohibited, except for management of
the Property for uses and activities permitted herein and for bona fide emergency use.
3.16 Development Rights
The use of this Property for the purpose of calculating lot yield or development density on
the Property or any other property, adjacent or otherwise, is prohibited. Grantor hereby grants to
Grantee all development rights existing on the Property as of the Effective Date of this Easement
(and any future development rights that may be created through a rezoning of the Property, or
otherwise), which have not been retained or reserved by Grantor under this Easement. By Grantee's
acceptance of this Easement, the parties agree that such excess development rights granted by
Grantor to Grantee are terminated and extinguished by Grantee, and may not be used by Grantor or
Grantee nor transferred to any other parcels.
ARTICLE FOUR
PERMITTED USES AND ACTIVITIES
Grantor reserves the right to use the Property in any manner that is neither expressly
prohibited herein nor inconsistent with the Conservation Purpose and other terms and conditions of
this Easement and that is in accord with existing zoning laws and restrictions. Without limiting the
generality of the foregoing, the following uses and practices, though not an exhaustive recital of
consistent uses and practices, are expressly permitted under this Easement as follows:
4.O1 Agricultural Activities
Grantor shall have the right to engage in any type of commercial or non-commercial
agricultural activity that(i) is permitted under§ 301(2) of the New York State Agriculture and
Markets Law as the term is defined as of the Effective Date of this Easement; (ii) does not have a
material adverse effect on the Conservation Values; and (iii) is otherwise consistent with the terms
of this Easement(collectively, "Agricultural Activities"). Notwithstanding the foregoing,
Agricultural Activities expressly exclude the right to the use of the Property for the following
activities: (1) sod, ball and burlap nursery, or other horticultural specialties that remove topsoil; and
(2) except on the twenty percent(20%) of the Property not required to be in Food Production, as
described below, (i) Equestrian Use and (ii) vineyard(s) for wine production. Should §301 of the
New York State Agricultural and Markets Law be amended after the Effective Date to include
agricultural activities and uses not currently included in the present law, Grantor may engage in
such additional agricultural activities only with the prior written approval of Grantee.
4.02 Sign
The display of signs, billboards, or advertisements is prohibited, except for signs whose
placement, number, and design do not significantly diminish the scenic Conservation Values of the
10
Property and only for any of the following purposes: (a) to state the name and address of the
Property and the names and addresses of the occupants; (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) to announce this Conservation Easement. Any permitted sign shall not be more than six (6)
square feet in size, shall be non-illuminated, and shall be subject to applicable governmental
regulatory requirements.
4.03 Cutting of Timber; Landscaping
The cutting, pruning or removal of trees, shrubs, or other vegetation on or from the Property
is prohibited, except for the following purposes: (a) to clear and/or restore any tree, shrub, or other
vegetation that is dead,damaged,diseased,destroyed or non-native and invasive;(b) to prune and/or
selectively thin trees to create limited vistas and/or for grounds maintenance; (c) to manage and/or
improve the significant relatively natural habitat on the Property, including by removal of invasive
species; (d) as reasonably necessary for the conduct of those uses and activities expressly permitted
under terms of this Easement, including but not limited to constructing and maintaining those
Structures and improvements expressly permitted under the terms this Easement; (e) for firewood
and fencing for use on the Property; (f) for the purpose of continuing the modes of landscaping
exercised on the Property prior to and as of the Effective Date of this Easement;and (g) to remove any
hazard or other legal liability to persons, personal or real property, or the Property and/or to persons
or personal or real property of neighboring properties;provided,however, that any such activity shall
require Grantee's prior written approval pursuant to Article Five below and must be conducted in
accordance with generally accepted best habitat conservation and forest management practices and
the Conservation Purpose of this Easement.
4.04 Structures and Improvements
A. Allowable Structures and Improvements: Grantor shall have the right to erect and
maintain the following Structures and improvements, provided such Structures and improvements
are (i) compatible with the preservation of the Conservation Values, (ii) consistent with the
Conservation Purpose, and (iii) in accordance with the following provisions:
With the prior written approval of Grantee, Grantor may erect and maintain the following
Structures and improvements on the Property:
(i) Agricultural Structures and improvements, permanent or temporary, that are
reasonably necessary, incidental, and/or accessory to the Agricultural Activities on
the Property, including, but not limited to, high tunnels and greenhouses within
which crops consistent with this Easement are grown and Housing for Agricultural
Labor;
(ii) Access drives to provide access to the Structures and improvements permitted
herein, farm roads, and foot trail(s) for non-motorized vehicles and foot traffic for the
11
sole use of the owners, tenants, occupants, assigns, and possessors of Property and
their guests;
(iii) Compost piles and related facilities;
(iv) Underground or aboveground facilities such as utility transmission lines, utility
poles, wires, pipes, wells, drainage systems, sumps, septic systems, leaching fields,
and other facilities to service the structures and improvements permitted under the
terms of this Section 4.04. Utilities on the Property must, to the extent possible, be
constructed within 30 feet of the centerline of roads or driveways and may be used
solely to service those Structure and improvement permitted on the Property by this
Easement;
(v) Fences, provided they are placed and constructed so that they do not block or detract
from the scenic view of the Property from Youngs Avenue; and
(vi) Structures and improvements used exclusively in connection with a wind energy
conversion system ("WECS") shall be permitted on the Property. A WECS is an
accessory structure designed and constructed or erected for the purpose of
converting wind energy into electrical power. Permitted WECS may only provide
renewable energy onsite for the exclusive use on and for the Property. Construction,
placement, relocation, modification, expansion, demolition and operation of a WECS
on the Property shall be subject to all applicable local, state, and federal statutes and
regulations. The rated capacity of the WECS shall not exceed one hundred ten
percent(110%) of the Property's average annual energy consumption. Electricity
generated by a WECS on the Property shall not be consumed by any residential
parcel of land or by any other parcel of land including land that is contiguous to the
Property and/or under common ownership with the Property.
C. Replacement of Structures or Improvements In-Kind
In the event of destruction of or damage to any existing or expressly permitted Structure or
improvement to such an extent that repair or continued use is impractical,erection of a replacement
of comparable size, bulk, use, and general design to the destroyed or damaged Structure or
improvement is permitted in kind and within substantially the same location, subject to the review
and prior written approval of Grantee.
ARTICLE FIVE
AFFIRMATIVE FARMING COVENANT
5.01 Agricultural Conservation Plan
All Commercial Agricultural Activities on the Property shall be conducted in accordance with
a conservation plan ("Conservation Plan") prepared by or in consultation with the Natural Resources
Conservation Service("NRCS") utilizing the standards and specifications of the NRCS localized Field
12
Office Technical Guide and approved by Grantee and the Suffolk County Soil and Water
Conservation District. Within ninety (90) days after the execution of this Easement, Grantor shall
submit to Grantee a Conservation Plan prepared by or in consultation with the NRCS as outlined
above for the Property for Grantee's confirmation and approval that such Conservation Plan is
consistent with the terms of this Easement. Upon Grantee's approval, such Conservation Plan will be
incorporated herein by this reference, and a copy of such Conservation Plan will be appended to the
Baseline Documentation. Grantor shall update the Conservation Plan at least every ten (10) years or
sooner in the event of any proposed significant change to the existing Conservation Plan or any
transfer of any interest in the Property(including a leasehold interest).Any subsequent update and/or
amendment shall be prepared by or in consultation with the NRCS as outlined above and shall be
submitted to Grantee within ten (10) days of issuance for Grantee's review and approval.
5.02 Commercial Agricultural Activities; Production of Foods
The Property shall be actively used for Commercial Agricultural Activities in perpetuity;
however, Grantor and Grantee recognize that unforeseen events may necessitate that the Property be
taken out of such use temporarily or that Grantor may, for whatever reason, wish to cease conducting
Commercial Agricultural Activities on the Property, all as further provided below.
In addition, at least eighty percent (80%) of the Property shall at all times be used for Food
Production. For purposes of calculating compliance with this percentage requirement, the following
areas and improvements shall be excluded from the total Property acreage (i.e., the denominator of
the percentage fraction): headlands and other sensitive natural areas not suitable for Agricultural
Activities (as described in the Baseline Documentation); land allowed to lay fallow (as defined in
Section 2.07 above) in consideration of an Agricultural Conservation Plan; and permitted Structures
and improvements (as provided in Section 4.04 above), including but not limited to WECS, except to
the extent any such Structure and improvement is used to grow Food and Food Products or house
livestock used to produce Food and Food Products (e.g., dairy animals), including,but not limited to,
high tunnels, greenhouses, and portions of barns or shelters dedicated to housing livestock used to
create Food and Food Products).
By way of illustration only, if a 14-acre property contains(i) 2 acres of sensitive natural habitat
not suitable for Agricultural Activities; (ii) 4 acres planted in Food and Food Products; (iii) 5 acres of
pasture to graze livestock used to create Food and Food Products;(iv) 1 acre planted in non-Food and
Food Products; (v) 1 acre of permitted agricultural Structures, .5 acres of which are used to grow or
house Food or Food Products; and (vi) 1 acre of fallow land, the denominator of the fraction would
be 10.5 (i.e., the number of total acres available for Agricultural Activities (12) minus the portion of
permitted agricultural Structures not dedicated to growing or housing Food and Food Products (.5)
and land laying fallow(1)); and the numerator of the fraction would be 9.5 (the total area available for
Agricultural Activities minus the portion of permitted agricultural Structures not dedicated to
growing or housing Food and Food Products, land laying fallow, and the 1 acre planted in non-Food
and Food Products). Thus, the percentage of the Property used for Food Production in this example
is approximately 90%.
13
5.03 Abandonment of Agricultural Uses
If Grantor decides to cease, or ceases, to conduct Commercial Agricultural Activities on the
Property for a period longer than six (6) months, Grantor shall notify Grantee of such decision or of
the cessation of Commercial Agricultural Activities (and the date of such decision or actual cessation
("Date of Cessation")) on the earlier to occur of the following dates: (i) within twenty (20) days of any
decision by Grantor to cease to conduct Commercial Agricultural Activities on the Property for a
period longer than six (6) months; or (ii) within twenty (20) days following the end of any six (6)-
month period during which the Property is not being used for Commercial Agricultural Activities
(each, as applicable, a "Grantor Cessation Notice"). Additionally, if Grantor has ceased Commercial
Agricultural Activities on the Property for a period longer than six (6) months, Grantee shall have the
option to notify Grantor of such fact (a "Grantee Cessation Notice"). A Grantor Cessation Notice or
Grantee Cessation Notice, alternatively, shall be referred to herein as a "Cessation Notice."
During any period of cessation of Commercial Agricultural Activities, Grantor agrees to keep
the Property open and available for Commercial Agricultural Activities consistent with the
Conservation Plan. If Grantor fails to resume active Commercial Agricultural Activities within one
(1)year after the Date of Cessation, Grantee shall have the right,but not the obligation, to enter on the
Property and restore, prepare and/or maintain the Property for future Commercial Agricultural
Activities. Grantee's activities on the Property shall be consistent with the Conservation Plan and the
Conservation Purpose and other terms and conditions of this Easement. Grantee shall have the right
to obtain reimbursement from Grantor for the costs associated with the implementation of such
restoration, preparation, and maintenance.
If Grantor (i) fails to resume Commercial Agricultural Activities on the Property (A) within
six (6) months from the date upon which a Cessation Notice is delivered to the respective recipient;
or (B) if no timely Cessation Notice is delivered, within six (6) months from the date upon which
Grantee discovers that the Property has not been used for Commercial Agricultural Activities for a
period of six (6) months or more; or (ii) notifies Grantee that it has decided that it no longer intends
to conduct Commercial Agricultural Activities on the Property (each of the foregoing a "Triggering
Event"), Grantor shall immediately upon the occurrence of such Triggering Event use its best efforts
to enter into an agricultural lease with a Qualified Farmer of at least the portion of the Property used
for Commercial Agricultural Activities in compliance with all terms and conditions of this Easement,
for a period of not less than five (5) years for the conduct of Commercial Agricultural Activities on
the Property in accordance with the terms of the Conservation Plan and the Conservation Purpose
and other terms and conditions of this Easement; provided that the Conservation Plan may be
amended to accommodate the lessee's proposed Commercial Agricultural Activities so Iong as such
amendment is made pursuant to the terms of Section 5.01 above. Grantor shall incorporate by
reference the Conservation PIan(as amended as provided above)and this Easement in any such lease,
shall promptly notify Grantee in writing of the execution of any such lease, and shall provide a copy
of such lease to Grantee for its review to confirm consistency with the terms of the Conservation Plan
(as may be amended) and the Conservation Purpose and other terms and conditions of this Easement.
If Grantor is unable to secure an agricultural lease of the Property with a Qualified Farmer
within six (6) months of the date Grantor is obligated to begin seeking a Qualified Farmer lessee as
14
provided above, Grantee shall have the right, but not the obligation and at its discretion, to
unilaterally invoke, by written notice to Grantor, the lease attached hereto as EXHIBIT B and
incorporated herein by this reference ("Lease") for a term of not less than five (5) years to restore,
prepare and/or maintain the Property for future Commercial Agricultural Activities, to conduct
Commercial Agricultural Activities itself, and/or to assign the Lease or sublease the Property to a
Qualified Farmer pursuant to the terms of the Lease. Grantee's activities on the Property shall be
consistent with the Lease, the Conservation Plan, and the Conservation Purpose and other terms and
conditions of this Easement; provided that the Conservation Plan may be amended to accommodate
Grantee's and/or the Qualified Farmer's proposed Commercial Agricultural Activities so long as such
amendment is made pursuant to the terms of Section 5.01 above.Grantee shall have the right to deduct
from the rent owed under the Lease any costs associated with the implementation of any restoration,
preparation, and maintenance of the Property for future Commercial Agricultural Activities and/or
any costs incurred by Grantee related to any assignment or sublease of the Lease to a Qualified
Farmer.
The parties agree that Grantee's remedies at law for any violation of Grantor's commitment to
conduct Commercial Agricultural Activities on the Property as required by this Easement are
inadequate, and Grantee shall be entitled to specific performance of the commitment to conduct such
use as required by this Easement without the necessity of proving either actual damages or the
inadequacy of otherwise available legal remedies. This right is in addition to the right to injunctive
relief, both prohibitive and mandatory, and such other relief to which Grantee may be entitled.
Grantee's remedies described in this section shall be cumulative and shall be in addition to any other
remedies provided in this Easement as well as in addition to all remedies now or hereafter existing at
law or in equity.
ARTICLE SIX
NOTICE AND APPROVAL
6.01 Notice and A2proval
A. Requests for Approval of Certain Uses or Activities.
With respect to any use, activity, or cessation of use under this Easement that requires
the prior notice to, and/or approval of, Grantee, or in the event Grantor proposes to undertake
a use or activity that is not explicitly prohibited hereby but which might have a deleterious
effect on the Conservation Values, Grantor shall, in writing, provide notice to and/or request
Grantee's approval and shall include therewith information identifying the proposed use,
activity, or cessation of use and the reasons for and other details of the proposed use, activity,
or cessation with reasonable specificity. The request for approval shall describe the nature,
scope, location, timetable, and any other material aspect of the proposed activity(including, if
appropriate,sketch plans or scaled drawings of the site(s)of the proposed activity)in sufficient
detail to permit Grantee to evaluate such activity. The request shall also include information
evidencing the conformity of such activity with the requirements of the applicable section
under which approval is requested hereunder. Grantee's approval, which shall not be
unreasonably withheld, shall take into account the following criteria:
15
W the extent to which the proposed activity or use of the site for the proposed activity
would otherwise materially impair the Conservation Values of the Property; and
(ii) the extent to which the proposed activity or use of the site for the proposed activity is
consistent with the Conservation Purpose; and
(iii) the extent to which the proposed activity or use of the site for the proposed activity
would impair the scenic qualities of the Property that are visible from Youngs Avenue.
Grantor and Grantee shall cooperate and shall act in good faith to arrive at agreement on
suitable sites and activities in connection with any determinations that are necessary to be
made by them(either separately or jointly)under this section. Notwithstanding the foregoing,
Grantee's approval of a proposed site or activity shall be withheld if the use of the site for the
proposed activity would materially impair the Conservation Values of the Property, or would
otherwise be inconsistent with the Conservation Purpose of this Easement, or interfere with
the essential scenic quality of the Property.
B. Grantee's Response
In accordance with Subsection A of this section, Grantee shall approve, conditionally
approve or withhold approval of the proposed use or activity within forty-five (45) days of
receipt of Grantor's written request therefor. Grantee agrees to evaluate Grantor's requests
under this Easement based on its good-faith exercise of professional judgment.
Notwithstanding the foregoing,if in good faith Grantee requires more than forty-five(45)days
to undertake a sufficient and thorough review of the documentation provided, or determines
that it requires further documentation, Grantee shall so notify Grantor within the original
forty-five(45) day period of the additional time and/or documentation required to respond to
Grantor's request hereunder. At Grantee's sole and absolute discretion, Grantee may permit
commencement of the activity less than forty-five (45) days after receiving Grantor's written
notice. In the case of withholding of approval, Grantee shall notify Grantor in writing with
reasonable specificity of the reasons for withholding of approval, and the conditions, if any,
on which approval might otherwise be given. Failure of Grantee to deliver a written response
to Grantor within such forty-five (45) days (as extended, as discussed above) shall be deemed
to constitute written approval by Grantee of any request submitted for approval that is not
contrary to the express provision hereof, including but not limited to the Conservation
Purpose,and whose implementation would not materially impair the Property's Conservation
Values.
ARTICLE SEVEN
AFFORDABLE FARMING COVENANT AND RESALE RESTRICTIONS
Grantor may sell, lease,give, devise, pledge, transfer or otherwise convey the Property, or any
interest therein, including any controlling interest in any entity such as a corporation or partnership
owning the Property (any such transaction, a "Conveyance"), but only subject to the following
restrictions:
16
7_01Notice of Intent to Market the Property for Sale
Grantor shall notify Grantee in writing no less than forty-five(45) days prior to any marketing
of the Property for sale, including advertising the Property for sale or entering into an agreement with
a real estate broker for the purpose of listing the Property for sale.
7.02 Maximum Sale Price
Grantor shall not sell the Property for more than the "Maximum Sale Price," which is defined
as the annual non-compounded appreciation of the Property as determined by Grantee by
multiplying (i) the per-acre value of the Property encumbered by this Easement as of the Effective
Date, which the parties stipulate is $17,000 per acre, by the lesser of (A) the change in Area Median
Income (AMI) obtained from Fannie Mae Suffolk County or (B) the Consumer Price Index (CPI) (for
all Urban Consumers NY obtained from Bureau of Labor Statistics), and, in any event, no more than
3.5% simple interest per year. As with any property sold, the condition of the property and closing
terms may result in a selling price below the Maximum Sale Price established by Grantee.
7,03 _ Capital Improvement Credit
Credit for capital improvements and for the purchase price of any easements and covenants
affecting the Property acquired by Grantee will be added to the Maximum Sale Price.
7.04 alified Buyer
Except as otherwise provided in Section 7.05 below, Grantor shall sell the Property only to a
Qualified Farmer. Grantee shall make the final determination of the qualification of a proposed
purchaser as a Qualified Farmer based on, but not limited to, the requirements contained in the
definition of such term in Section 2.12 above.
7.05 Exempt Transactions
A. If the Property is conveyed without consideration to a member of Grantor's
Family, the Conveyance shall be exempt from the requirements hereunder with respect to the
sale to a Qualified Farmer and the price limitations of Section 7.02 only.
B. Any mortgage, pledge, or other assignment of the Property to a lender as security for
an indebtedness of Grantor shall be exempt from the requirements hereunder with respect to
the sale to a Qualified Farmer and the price limitations of Section 7.02 only: provided,
however, that any Conveyance of the Property as result of a default of Grantor in the payment
of such indebtedness shall be subject to the terms of this Easement, including but not limited
to this Article Seven,in the same manner as Grantor hereunder,and the terms of this Easement
will survive and continue in full force and effect after any such conveyance resulting from a
default of Grantor.
17
All other terms and conditions of this Easement shall remain in full force and effect and the
exempt transaction shall be subject to the terms of this Affordable Farming Restriction with respect to
a future resale.
7.06 Notice of Intent to Convey
Should Grantor be prepared to enter into a transaction constituting a Conveyance of the
Property, including a Conveyance which may be exempt pursuant to Section 7.05 above,Grantor shall
so notify Grantee in writing. Such notice shall be referred to herein as "Notice of Intent to Convey"
and shall include:
(i) a counterpart original copy of any written agreement between Grantor and the proposed
transferee relating to the proposed Conveyance, including verification that the proposed
purchase price was arrived at using the "Maximum Sale Price" Formula described in
Section 7.02 above, together with such other instruments as may be required to show that
proposed transaction has been entered into in good faith and in accordance with this
Article Seven;
(ii) a written description of the proposed transferee's qualifications as a Qualified Farmer,
including but not limited to his/her/its training and experience as an agricultural producer,
together with an agricultural business plan for the Property, including a description of the
Commercial Agricultural Activities to be conducted or facilitated by the proposed
transferee, proposed improvements to the Property, and a statement of anticipated
agricultural income and expenses for the three-year period following the conveyance of
the Property; and
(iii) if the proposed Conveyance is to a member of Grantor's Family, documentation sufficient
to establish the proposed transferee as such.
Grantor shall deliver to Grantee a Notice of Intent to Convey along with the required
supporting documentation at least sixty (60) days prior to entering into any contract for the sale or
other disposition of the Property or, if no contract is contemplated (i.e:, in the case of a gift or other
similar transfer), at least sixty (60) prior to conveying the Property. Grantee shall respond to Grantor
as to whether or not Grantee approves of the proposed Conveyance within forty-five (45) days of
receipt of said Notice of Intent to Convey and supporting documentation from Grantor.
7.07 Grantee as Buyer of Last Resort
If Grantor has listed the Property for sale with a bona fide real estate broker and can
demonstrate that the Property has been marketed for sale for a period of not less than twelve (12)
months and that no Qualified Farmer has entered into a contract with Grantor to purchase the
Property, then Grantee agrees to enter into a contract with Grantor within thirty (30) days of being
notified by Grantor that the required twelve (12)-month marketing period has lapsed, or anytime
thereafter, to purchase the Property at a price not to exceed the Maximum Sale Price plus credit for
Capital Improvements pursuant to Section 7.03 above, and Grantee agrees to use its best efforts to
18
close on the Property not more than six (6) months from the date of entering into the contract with
Grantor. Grantee may also assign its right to purchase the Property while in contract or at the closing.
7.08 Continuing Effect
This Easement created hereunder shall remain in full force and effect after any Conveyance of
the Property, provided that, if the Property is conveyed to Grantee, Grantee shall have the right to
amend any of the terms of this Article Seven at Grantee's discretion before reconveying the Property.
7.09 Confidentiality
All information delivered to Grantee pursuant to this Easement shall remain confidential and
shall not be disclosed to any person or entity not a party to this instrument without the prior consent
of Grantor, except as required by law.
ARTICLE EIGHT
GRANTOR'S OBLIGATIONS
8.01 Taxes and Assessments
Grantor shall 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. If Grantor fails to make any such payment, Grantee is authorized to make such
payments (but shall have no obligation to do so) upon ten (10) days' prior written notice to Grantor,
according to any bill, statement or estimate procured from the appropriate public office without
inquiry into the accuracy thereof. That payment, if made by Grantee, shall become a lien on the
Property of the same priority as the item if not paid would have become, and shall bear interest
until paid by Grantor at three (3) percentage points over the prime rate of interest from time to time
charged by Citibank, N.A., or its corporate successor, in no event to exceed a legal interest rate.
8.02 Indemnification
Grantor acknowledges that Grantee has neither possessory rights in the Property nor any
responsibility nor right to control, maintain, or keep up the Property. Grantor has and shall retain
all responsibilities and shall bear all costs and liabilities of any nature related to the ownership,
operation, upkeep, improvement, and maintenance of the Property. Grantor hereby releases and
agrees to hold harmless, indemnify and defend Grantee and its members, directors, officers,
employees, legal representatives, agents, and contractors and the heirs, personal representatives,
successors, and assigns of each of them (collectively "Indemnified Parties") from and against any
and all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims,
demands, orders,judgments, or administrative actions, including, without limitation, reasonable
attorneys' fees, arising from or in any way connected with: (1) injury to or the death of any person,
or physical damage to any property, resulting from any act, omission, condition, or other matter
related to or occurring on or about the Property, regardless of cause, unless due solely to the
negligent act or willful misconduct of Grantee; or(2) violation or alleged violation of, or other
19
failure to comply with, any state, federal, or local law, regulation, or requirement by any person,
other than Grantee, in any way affecting, involving, or relating to the Property.
8.03 Insurance
Grantor shall keep the Property insured by an insurance company rated Al or better for the
maximum amount obtainable against loss from the perils commonly insured under standard fire
and extended coverage policies and comprehensive general liability insurance against claims for
personal injury, death, and property damage. Property damage insurance shall include change in
condition and building ordinance coverage, in form and amount sufficient to substantially repair or
replace fully the damaged Property. Such insurance shall include Grantee as an additional insured.
At Grantee's request, Grantor shall deliver to Grantee a certificate of insurance within ten
(10) business days of Grantee's written request for documentation of coverage. Grantee shall have
the right to provide insurance at Grantee's cost and expense, should Grantor fail to obtain same. In
the event Grantee obtains such insurance, the cost of such insurance shall be a lien on the Property
until repaid by Grantor.
8.04 Environmental Responsibilities
Grantor Responsible for the Property. Grantor is solely responsible, and Grantee has no
responsibility, for the operation of the Property or the monitoring of hazardous or other conditions
thereon. Nothing in this Easement shall be construed as giving any right or ability to Grantee to
exercise physical or managerial control of the day-to-day operations of the Property or of Grantor's
activities on the Property. Neither Grantee nor its agents shall be liable to the Grantor or other
person or entity in connection with consents given or withheld, or in connection with any entry
upon the Property, pursuant to this Easement.
Grantor's Environmental Warranty and Indemni1y. Grantor represents and warrants that it
has no actual knowledge of a release or threatened release of any Hazardous Materials, as defined
below, on the Property and hereby promises to hold harmless, defend and indemnify the
Indemnified Parties from and against all liabilities, penalties, fines, charges, costs, losses, damages,
expenses, causes of action, claims, demands, orders,judgments, or administrative actions, including,
without limitation, reasonable attorneys' fees, arising from or connected with the presence and/or
any release of Hazardous Materials or violation of federal, state or local Environmental Laws, as
defined below, on, under, or from the Property.
This Easement is not intended to and shall not create environmental liability in Grantee.
Notwithstanding any other provision herein to the contrary, the parties do not intend this Easement
be construed such that it imposes on, creates in or gives the Grantee:
(1) the obligations or liability of an "owner" or "operator" as those words are
defined and used in Environmental Laws, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section
9601 et seq., and hereinafter "CERCLA");
20
(2) the obligations or liability of a person described in 42 U.S.C. Section 9607(a)(3)
or(4);
(3) the obligations of a responsible person under any applicable Environmental
Laws;
(4) the right to investigate and remediate any Hazardous Materials, associated
with the Property; or
(5) any control over Grantor's ability to investigate, remove, remediate, or
otherwise clean up any Hazardous Materials associated with the Property.
The term "Hazardous Materials" includes, but is not limited to, (i) material that is
flammable, explosive, or radioactive; (ii) petroleum products; and (iii) hazardous materials,
hazardous wastes, hazardous or toxic substances, or related materials, including but not limited to
those defined in CERCLA, the Hazardous Materials Transportation Act(49 U.S.C. Section 5101 et
seq.), the New York Environmental Conservation Law (NY ECL 27-0901) or any other
Environmental Law, and in the regulations adopted and publications promulgated pursuant to
them, or any other applicable federal, state, or local laws, ordinances, rules, or regulations now in
effect or enacted after the Effective Date of this Easement.
The term "Environmental Laws" includes, but is not limited to, any federal, state or
local or administrative agency statute, regulation, rule, ordinance, order or requirement now in
effect or enacted after the Effective Date of this Easement relating to pollution, protection of human
health, the environment, or Hazardous Materials,
8.05 Acts Beyond Grantor's Control.
Nothing contained in this Conservation Easement shall be construed to entitle Grantee to
bring any action against Grantor for any injury to or change in the Property resulting from natural
causes beyond Grantor's control, including without limitation, fire, flood, storm, and earth
movement, or from any prudent action taken by the Grantor under emergency conditions to
prevent, abate, or mitigate significant injury to the Property resulting from such causes.
ARTICLE NINE
GRANTEE'S RIGHTS
9.01 Entry and Inspection
Grantee shall have the right to enter upon the Property for the purpose of inspection and
monitoring, to determine whether this Easement and its Conservation Purpose and other provisions
are being upheld. Except in cases where Grantee determines, in its reasonable discretion, that
immediate entry is required to investigate a use or condition on the Property in order to prevent,
21
terminate, or mitigate a violation or potential violation of the terms of this Easement, such entry
shall be permitted only at reasonable times and upon prior notice to Grantor and shall be made in a
manner that will not unreasonably interfere with Grantor's use and quiet enjoyment of the Property.
Grantee shall not have the right to permit access upon the Property by the general public.
9.02 Protection and Restoration
Grantee shall have the right to identify, to preserve and to protect in perpetuity the
Conservation Values of the Property, including, but not limited to, by means of review and
approval of improvements and activities as set forth in Article Five above. Grantee shall have the
right to prevent any activity on or use of the Property that is inconsistent with the Conservation
Purpose or other provisions of this Easement and to require the Grantor to restore such areas or
features of the Property that may be damaged by any inconsistent and/or unpermitted condition,
activity or use and to enforce these 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 Grantor's control as provided in Section 8.05 above.
9.03 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 in limitation of, any other rights of
Grantee hereunder at Iaw 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, or a bona fide attempt has not been begun by Grantor within fifteen (15) days
of Grantor's receipt of Grantee's notice of such breach, default or violation (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 Conservation Values or otherwise to further the Conservation Purpose of this Easement),
Grantee shall have the right at Grantor's sole cost and expense and at Grantee's election,
(a) To institute a suit to enjoin or cure such breach, default or violation by temporary
and/or permanent injunction and/or to require the restoration of that portion of the
Property affected by such breach, default or violation to the condition that existed
prior thereto;
(b) 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, and
(c) 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
22
breach, default, or violation or with respect to any other breach, default or violation
of any term, condition, covenant or obligation under this Easement.
Grantee's remedies described in the section shall be cumulative and shall be in addition to all
remedies now or hereafter existing at law or in equity. Grantor shall pay, either directly or by
reimbursement to Grantee, all reasonable attorney's fees, court costs and other expenses
(collectively, "Litigation Expenses") incurred by Grantee in connection with any proceedings
initiated under this section. Litigation Expenses include, but are not limited to, those Litigation
Expenses incurred by Grantee in the event Grantor or anyone acting by, through, under, or on
behalf of Grantor, commences litigation against Grantee to enforce any rights hereunder or to
dispute any action or inaction of Grantee, to enforce any alleged duty or obligation of Grantee
hereunder, or to seek damages or specific performance against Grantee, except in the event Grantee
is finally determined by a court of competent jurisdiction, beyond right of appeal, to have acted in a
manner that is contrary to the terms of this Conservation Easement and to have failed to exercise
reasonable judgment(except in those circumstances of which Grantee is given sole and absolute
discretion as expressly provided herein), taking into account the Conservation Purpose of this
Easement and the circumstances of which Grantee had actual knowledge at the relevant time.
Grantee shall not be considered to have failed to exercise reasonable judgment as aforesaid solely
based on the fact that Grantee did not or does not prevail in such legal proceedings or that Grantee
is determined to have adopted an interpretation of this Conservation Easement not accepted by the
cou rt.
9.04 No Waiver
Grantee's exercise of one remedy or relief under this Article Nine shall not have the effect of
waiving or limiting any other remedy or relief, and the failure to exercise or delay in exercising any
remedy shall not have the effect of waiving or limiting the use of any other remedy or relief or the
use of such other remedy or relief at any other time.
9.05 Grantor's Waiver of Certain Defenses
Grantor hereby waives any defense of laches, estoppel, or prescription, and/or any defense
or argument that any portion of this Easement, including but not limited to the provisions of Article
Seven, constitutes a restraint on alienability or is otherwise contrary to public policy for any reason.
Grantor acknowledges that it has read and understands the provisions of this section above
and by initialing immediately below agrees to be bound by its terms.
Grantor's Initials
9.06 Assignability
Grantee shall have the right to assign any and all of its rights and responsibilities under this
Easement, and any and all of its rights, title and interest in and to this Easement only to a qualified
23
organization (herein called the "Assignee"). As used herein the term "qualified organization"
means a not-for-profit corporation, or a governmental unit or agency, which is qualified to receive
such interests pursuant to Article 49 of the New York Environmental Conservation Law, and is a
qualified organization within the meaning of Section 170(h)(3) of the Code, and which is organized
or operated primarily or substantially for one of the conservation purposes specified in Section
170(h)(4)(A) of the Code. Any assignment by Grantee or a successor Grantee must require, and the
Assignee must agree, that the Assignee and Assignee's successors will carry out the purposes of,
and enforce, this Easement. The Assignee and its successors and assigns shall have the same right of
assignment, subject to compliance with the provisions of this section. Grantee shall promptly notify
Grantor of any such assignment.
Assignment by Grantee must require, and the proposed assignee must agree, that such
assignee and its successors will carry out and enforce the Conservation Purpose and other
provisions of this Easement. The assignee and its successors and assigns shall have the same right of
assignment, subject to the provisions of this section. Grantee shall promptly notify Grantor of any
such assignment.
9.07 Succession
If at any time Grantee is unable to enforce this Easement, or if Grantee ceases to exist or
ceases to be a qualified organization under Section 170(h)(3) of the Code, then this Easement shall be
vested in such qualified corporation, body or agency as defined and upon the conditions and
limitations contained in Section 9.06 (Assignability) as Grantee shall designate. If, on the
occurrence of any of these events, Grantee fails to assign all of its rights and responsibilities under
this Easement and all of its rights, title and interest in and to this Easement to a qualified
organization, then the rights and responsibilities under this Easement shall become vested in
another qualified organization, in accordance with a cy pres proceeding brought in any court of
competent jurisdiction. Grantor will be notified of any such proceeding.
9.08 Extinguishment
This Easement gives rise to a property right and interest immediately vested in Grantee. For
purposes of this Section 9.08,the fair market value of such right and interest shall have a fair market
value determined by multiplying (i) the fair market value of the Property unencumbered by this
Easement (minus any increase in value attributable to improvements made after the Effective Date
of this Easement) by (ii) the ratio of the value of this Easement as of the Effective Date of this
Easement to the value of the Property, unencumbered by this Easement, as of the Effective Date of
this Easement. The value as of the Effective Date hereof shall be those values established through an
appraisal of the Conservation Easement obtained by Grantee at the time of the conveyance of this
Easement. The percentage ratio thus determined is hereinafter referred to as the "Proportionate
Share", and shall thereafter remain constant. The Proportionate Share of this Easement as
determined above shall be filed as part of the Baseline Documentation described in Section 0.03
hereof.
24
(For example: if the fair market value of the Property is $500,000 as of the Effective Date and its restricted
value is$100,000 as of sirch date, the value of this Easement is $400,000. So, the Proportionate Share is
$400,000 divided by$500,000, or 80%.)
If circumstances arise in the future that render the Conservation Purpose of this Easement
impossible or impracticable to accomplish, this Easement can only be terminated or extinguished,
whether in whole or in part, by judicial proceedings in a court of competent jurisdiction and in
accordance with the common and statutory laws of the State of New York. In the event a material
change in the conditions of or surrounding the Property makes impossible or impracticable its
continued use for the purposes contemplated hereby or makes impossible or impracticable the
protection of the Conservation Values protected by this Easement, resulting in an extinguishment or
partial extinguishment of this Easement by a judicial proceeding, Grantor shall pay Grantee an
amount equal to the Proportionate Share of the then fair market value of the Property (minus any
amount attributable to the value of improvements made by Grantor after the Effective Date of this
Conservation Easement) at the time of the extinguishment. Such fair market value shall be
established by an arm's length sale of the Property (or such portion of which as to which this
Easement is extinguished) consummated within ninety (90) days of the extinguishment, subject to
Grantee's approval of the sale price as fairly representing fair market value; otherwise, fair market
value shall be determined by independent appraisal.
If all or any part of the Property is taken under the power of eminent domain by public,
corporate, or other authority, or otherwise acquired by such authority through a purchase in lieu of
a taking, so as to abrogate the restrictions imposed by this Easement or otherwise effectively to `
frustrate the Conservation Purpose hereof, Grantor and Grantee shall join in appropriate
proceedings at the time of such taking to recover the full value of their respective interests in the
Property subject to the taking and all incidental or direct damages resulting from the taking.
Grantee shall be entitled to the Proportionate Share of the recovered proceeds. All expenses
incurred by the parties to this Easement in connection with such taking shall be paid out of such
party's respective share of the recovered proceeds. Grantee shall use such proceeds actually
recovered by it in a manner consistent with the Conservation Purpose of this Easement.
The respective rights of Grantor and Grantee set forth in this Section 9.08 shall be in addition
to, and not in limitation of, any rights they may have by law with respect to a modification or
termination of this Easement by reason of changed conditions or the exercise of the power of
eminent domain as aforesaid. In making this grant of Easement, however, Grantor has considered
the possibility that uses prohibited by the terms of this Easement may become more economically
viable than the uses specifically reserved by Grantor pursuant to this Easement. It is the intent of
both Grantor and Grantee that any such change in economic conditions shall not be deemed to be
circumstances justifying the termination or extinguishment of this Easement pursuant to this
section.
25
ARTICLE TEN
MISCELLANEOUS
10.01 Alienability
Grantor shall have the right to convey, mortgage or lease all of its remaining interest in the
Property but only subject to the terms of 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, in the case of a transfer to an entity, the individual principals thereof. 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 forth 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 or the validity of this Easement.
10.02 Entire Understandin
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.
10.03 Amendment
This Easement is made with the intention that it shall qualify as a conservation easement in
perpetuity under Code Section 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 Code Section 170(h)
and/or to enable Grantee to amplify the public benefits attributable to this Easement. Any such
amendment shall be permitted only upon Grantee's determination, in its sole discretion, that such
amendment will not jeopardize Grantee's status as an organization described in Code Sections
170(h)(3) and 501(c)(3).
This Easement can be amended and modified only in accordance with the common and
statutory laws of the State of New York applicable to the modification of easements and covenants
running with the land. Grantee and Grantor shall mutually have the right to agree to amendments
to this Easement, provided however, that Grantee shall have no right or power to agree to any
amendment hereto that would result in this Easement failing to qualify as a valid conservation
easement under Article 49, Title 3 of the Environmental Conservation Law of the State of New York,
as the same may be hereafter amended, or any regulation issued pursuant thereto. No amendment
may be approved by Grantee that would or, as Grantee in its judgment may determine, could
violate the rules of impermissible private benefit or of private inurement under applicable sections
of the Code, including but not limited to Code Section 501(c)(3).
10.04 Severabilit
26
Any provision of this Easement restricting Grantor's activities which is determined to be
invalid or unenforceable by a court of competent jurisdiction, 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 of competent jurisdiction shall be severed from the other provisions, which
shall remain enforceable and effective.
10.05 Notice
All notices required by this Conservation Easement must be written. Notices shall be
delivered by hand;by certified or registered U.S. mail, return receipt requested; or by overnight
delivery by a reputable national courier service that provides automated delivery tracking;
provided, however, that notices from Grantee to Grantor to notify Grantor of the date and time of
routine annual monitoring of the Property pursuant to Section 9.01 above may be delivered by U.S.
first-class mail or by electronic transmission (e.g., email or facsimile) provided that the sender
receives an acknowledgement of successful transmission or the recipient provides an
acknowledgement of receipt. Notices 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
10.05. Notice to Grantee shall be addressed to its principal office, recited herein, marked for the
attention of the President, or to such other address as Grantee may designate by notice in
accordance with this Section 10.05. Notice shall be deemed given and received as of the date of its
actual delivery to the recipient.
10.06 Governing Law
New York law applicable to deeds and conservation easements pertaining to land located
within New York shall govern this Easement in all respects, including validity, construction,
interpretation, breach, violation and performance.
10.07 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 or the other party's
attorney. No alleged ambiguity in this Easement shall be construed against the party which drafted
it, or 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 consistent with
the Conservation Purpose 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 effectuate the Conservation
Purpose 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 its right to use
the Property, except as otherwise recited herein, be construed at all times and by all parties to
effectuate its purposes.
27
10.08 Public Access
Nothing contained in this Easement grants, nor shall be interpreted to grant, to the general
public any right to enter upon the Property.
10.09 Warranties
The warranties and representations made by the parties in this Easement shall survive its
execution.
10.10 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 and shall forward a copy of the recorded easement to the New York
State Department of Environmental Conservation.
10.11 Enforceable Restriction;Successors
The covenants, terms, conditions, and restrictions of this Easement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective personal representatives, agents,
heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the
Property. The terms "Grantor" and "Grantee," whenever used herein, and any pronouns used in
place thereof, shall include, respectively, the above-named Grantor and its representatives, agents,
Iicensees, successors, and assigns, and the above-named Grantee and its successors and assigns.
10.12 Termination of Rights and Obligations
A party's rights and obligations under this Easement terminate upon transfer of the party's
interest in the Easement or the Property, except that liability for acts or omissions occurring prior to
transfer shall survive transfer.
10.13 Headings
The headings, titles and subtitles herein'have been inserted solely for convenient reference,
and shall be ignored in its construction.
10.14 Counterparts,
Grantor and Grantee may execute this instrument in two or more counterparts; each
counterpart shall be deemed an original instrument. [n the event of any disparity between the
counterparts produced, the recorded counterpart shall be controlling.
[Signatures to follow on next page.]
28
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted and
received this Deed of Conservation Easement with Affirmative Farming Covenant and Affordable
Farming Covenant and Resale Restrictions on the day and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
GRANTOR:
OLDE ROAD FARM LLC,
a New York limited liability company
BY:
John Murnane, Managing Member
ACKNOWLEDGED AND ACCEPTED:
GRANTEE:
PECONIC LAND TRUST, INCORPORATED,
a New York not-for-profit corporation
BY: c5,
Pamela S. Greene
Senior Vice President
29
STATE OF NEW YORK )
COUNTY OF SUFFOLK } SS:
On this day offili in the year 20c?t before me, the undersigned, personally appeared
MJF''j't'jz , personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged tome that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the individuaI(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.
7, —
Notary
Public
STEPHEN P SPANBURGH
NOTARY PUBLIC,STAVE OF NEW YORK
Registration No.01SP4906864
Qualified in Suffolk County
Commission Expires Oct.5,2021
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
S
On this 1 d y of 40-1 in the year 2A0 before me, the undersigned, personally appeared
�avt-tr-( O' �'��'– �- , personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.
�RWr�SW eta
LNO-02TU4728691
Not ry Public "i iee in Suff0th Cou
'U16 Fid m Nov.30%�-�
SCHEDULE A: Metes and Bounds Description of the Property
EXHIBIT A: Conservation Easement Map of the Property
EXHIBIT B: Form Agricultural Lease Between Grantor and Grantee
30
SCHEDULE A
Metes and Bounds Description of the Property
[Attached]
31
Westcor Land Title Insurance Company
Title Number: W-ADA-1637-S
SCHEDULE A DESCRIPTION
ALL that certain plot, piece or parcel of land, situate, lying and being in the Town of
Southold, County of Suffolk and State of New York, known as Lot 2 as shown on Map of
Final Plat setoff for Parker E, Betsey B. and Chester M. Dickerson filed in the Suffolk
County Clerk's Office on 05/13/97 as Map No. 9998, bounded and described as follows.-
BEGINNING
ollows:BEGINNING at a point on the easterly side of Railroad Avenue (Youngs Avenue), said point
being at the division between Lots 1 and 2 on the above described map where the same
intersects the easterly side of Railroad Avenue;
RUNNING THENCE North 78 degrees 39 minutes East along the division line between Lots
1 and 2, 285.00 feet;
THENCE North 11 degrees 21 minutes West still along the division between Lots 1 and 2,
288.69 feet to a point and land now or formerly of Grigonis;
THENCE North 75 degrees 54 minutes 00 seconds East along last mentioned land 319.69
feet to a monument and land now or formerly of Grigonis;
THENCE South 11 degrees 34 minutes 10 seconds East along land now or formerly of
Grigonis and land now or formerly of Carroll a distance of 1063.71 feet to a monument and
land now or formerly of C.F. Van Duzer Gas Service Inc.;
THENCE South 10 degrees 53 minutes 50 seconds East along last mentioned land, 346.57
feet to a point and land now or formerly of County of Suffolk;
THENCE the following two (2) courses and distances along last mentioned land:
1. South 66 degrees 37 minutes 40 seconds West, 212.95 feet to a point;
2. South 11 degrees 08 minutes 30 seconds East, 199.95 feet to land now or
formerly of Luhrs;
THENCE South 66 degrees 38 minutes 40 seconds West along last mentioned lands,
150.00 feet to a monument;
THENCE South 11 degrees 21 minutes East, 13.25 feet to a monument and land now or
formerly of Huff;
THENCE South 79 degrees 47 minutes West along last mentioned land, 105.00 feet to a
point and land now or formerly of Harris;
THENCE North 11 degrees 21 minutes West along last mentioned land, 63.00 feet to a
point and land now or formerly of Dickerson;
point; THENCE North 79 degrees 47 minutes East, along last mentioned lands, 5.00 feet to a
I
Westcor Land Title Insurance Company
Title Number: W-ADA-1637-S
Pag4e-2
THENCE North 10 degrees 17 minutes West along last mentioned lands and land now or
formerly of Krauss, 245,00 feet to a point;
THENCE South 79 degrees 47 minutes West, 154.55 feet to the easterly side of Railroad
Avenue;
THENCE North 11 degrees 21 minutes 00 seconds West along the easterly side of
Railroad Avenue, 1082.00 feet to the point or place of BEGINNING.
FOR CONVEVANCCNC OivLV:Togtther with all right,title and interest or,in and to any streets and roads abutting the
above described premises,to the center line thercor.
2
EXHIBIT A
Development Rights Easement Map of the Property
[Attached]
32
� .. �,rte! *"Y �.���w �\ l�•• � -f .sr a: � d •••7e._:
ILI
�s
C,}'Syy fS •�_ �i' - ' ,41� � •l �_ � �"� �-` R5�•` •��� ,•jam
4 .'Tim"� •� .0 }
' i � �\ •� - �, �. _y.�f',-���-� -, 11 S.
�; 'Film ,• 'Y�+� � �� �, � � 4�
Peconic Land Trust
2%Hampton Road/PO Box 1776 Krupski (Exhibit A) SCTMO: 1000-55-2-9.4
631.283-3195 Acreage:19.2
Prepared James Mcmmb
3,
Gate:June 3,2020 Town of Southold, NY Aerial Year:2016
www,Peconic LandTrust.org
SourccNYS rr8 CIS Program Office,Suffolk County Real Property Tax Service Agency
EXHIBIT B
Agricultural Lease for Property between Grantor and Grantee
[Attached]
33
AGRICULTURAL LEASE
BETWEEN GRANTOR AND GRANTEE
THIS LEASE ("Lease"), dated , 20_ (for reference purposes only), is by and
between a , having an
address of (herein called"Lessor"),and the PECONIC
LAND TRUST, INCORPORATED, a municipal corporation, having offices at 296 Hampton
Road, P.O. Box I776, Southampton, New York 11969 (hereinafter called "Lessee").
WHEREAS, Lessor is the owner of that certain real property located at 4280 Youngs
Avenue in the Town of Southold, Suffolk County, New York, more particularly bounded and
described in "SCHEDULE A," which is attached to that certain Conservation Easement defined
and described below and incorporated herein by this reference (the "Property"). Lessee holds a
certain Conservation and Development Rights Easement with Affirmative and Affordable Farming
Covenants and Resale Restrictions ("Conservation Easement") on the Property, which
Conservation Easement is recorded at Liber and Page in the official records
of Suffolk County, New York, and which Conservation Easement, including all of its schedules,
exhibits, and other attachments, is hereby incorporated herein by this reference; and
WHEREAS, in the Conservation Easement, Lessor, as owner of the Property, covenanted
and agreed that, if Lessor failed, for any reason, to keep the Property in active commercial
agricultural production for a period of two (2) consecutive years (or earlier if Lessor notified
Lessee that Lessor no longer intended to conduct active commercial agricultural operations on the
Property), and Lessor did not timely enter into an agricultural lease with a farmer pursuant to the
terms of the Conservation Easement, Lessee had the right to unilaterally invoke this Lease pursuant
to the terms hereof as well as to assign this Lease or sublet all or a portion of the Property, at
Lessee's sole discretion, to any farmer who (1) agrees to conduct Agricultural Activities (as that
terms is defined in Section 4.01 of the Conservation Easement)on the Property in compliance with
all applicable laws and ordinances and the terms and conditions of the Conservation Easement,
including but not limited to conducting sound farming practices as provided in the Conservation
Easement and adhering to an approved Agricultural Conservation Plan as described in Section
5.01 of the Conservation Easement (as such Agricultural Conservation Plan may be amended
pursuant to the terms of such section); and, if applicable; (2) meets the qualifications necessary to
keep the Property enrolled in the NYS Agricultural District and the NYS Agricultural Assessment
Programs; and (3) otherwise meets the qualifications of a "Qualified Farmer", as such term is
defined in the Conservation Easement.
WHEREAS, Lessor has ceased active agricultural operations on the Property for a period
of two (2) consecutive years (or, as applicable, Lessor has notified Lessee that Lessor no longer
intends to conduct active agricultural operations on the Property), and Lessee has notified Lessor
that Lessee intends to invoke this Lease pursuant to the terms of the Conservation Easement.
34
NOW, THEREFORE, for and in consideration of their mutual covenants, agreements, and
undertakings hereinafter set forth, Lessor and Lessee agree as follows:
1. Lease. Lessor and Lessee agree that this Lease will be deemed fully effective and valid on
the date that Lessor receives Lessee's written notification that the circumstances upon which
Lessee is entitled to invoke this Lease have occurred and that Lessee intends to invoke this Lease
("Lessee's Notice of Intent to Lease"); provided that, during the Term (as defined below) of this
Lease, Lessee shall not use the Property or any part thereof for any purpose other than the
purpose(s) stated in this Lease or in violation of the Conservation Easement or any applicable law
or ordinance. In Lessee's Notice of Intent to Lease, Lessee shall provide the Annual Fair Market
Value of this Lease (as defined and further described in Section 3 below) and all data and
information that Lessee relied upon to calculate same.
2. Term. The term of this Lease shall commence on the date of Lessor's receipt of Lessee's
Notice of Intent to Lease ("Effective Date"), regardless of the date of Lessee's actual entry, and
shall run for a period of five (5) consecutive years ("Initial Term"). Said Lease shall renew
automatically at the end of each five (5)-year term for an additional five(5) years so long as Lessee
is in full compliance with all of the covenants and conditions contained in this Lease, unless (i)
Lessee notifies Lessor of Lessee's intent to terminate this Lease, which notice must be given in
writing not less than ninety (90) days prior to date of termination of any existing term or(ii) Lessor
notifies Lessee of Lessor's intent to terminate this Lease, which notice must be given in writing
not less than ninety (90) days prior to date of termination of any existing term and provided that
Lessor may only so terminate if Lessor intends to conduct, and within three (3) months of said
termination actually commences conducting, Agricultural Activities on the Property in compliance
with all applicable laws and ordinances and the terms and conditions of the Conservation
Easement, including but not limited to conducting sound farming practices as provided in the
Conservation Easement and adhering to an approved Agricultural Conservation Plan as described
in Section 5.01 of the Conservation Easement (as such Agricultural Conservation Plan may be
amended pursuant to the terms of such section).
The Initial Term and any succeeding five-year term complying with the terms of this section shall
be referred to herein as the "Term" of this Lease.
3. Lease Payment. Lessee agrees to pay annually as rent the sum equal to the "Annual Fair
Market Value" of this Lease as of the Effective Date. The Annual Fair Market Value of this Lease
shall be determined according to the following method: (i) Lessee shall compile annual rental rates
of three (3) agricultural leases currently in effect from the nearest agricultural operations to the
Property(with reasonable and appropriate adjustments to account for usable agricultural structures
and other improvements on the comparison properties and/or Conservation Easement Property);
(ii) those rental rates shall be divided by the respective number of acres subject to such other
agricultural leases,which will produce a per-acre rate for each lease; (iii)those three per-acre rental
rates shall be averaged and rounded to the nearest whole dollar; and (iv) such average shall be
35
multiplied by the number of acres subject to this Lease, thereby producing the Annual Fair Market
Value of this Lease. This Annual Fair Market Value may not be disputed by Lessor so long as
Lessee has satisfied the terms of this section.
[For illustrative purposes only, if the number of acres subject to this Lease is 100, and Lessee
compiles the following annual rental rates for the leases on the three nearest farming operations
then in effect, the Annual Fair Market Value of this Lease would be $12,8001year, calculated as
follows:
Farm A: $4,200(40 acres): $1051acre
Farm B: $5,000(50 acres): $1001acre
Farm C: $3,600(20 acres): $180/acre
Average: $1281acre * 100 acres = $12,8001year = Annual Fair Market Value]
The Annual Fair Market Value shall be paid by Lessee either (I) on an annual basis on or before
the first day of each year of the Term; or (11) on a monthly basis on or before the first day of each
month of the Term (with the first month's rent of the Initial Term and last month's rent of any
unextended Term to be prorated based on a 30-day month). The Annual Fair Market Value shall
be adjusted every five (5) years according to the method provided in this section. Any other
payment arrangement shall require the prior written approval of Lessee and Lessor. Upon
assignment of this Lease or sublease of the Property as provided in Section 4 below, Lessee shall
keep records of all expenses related to such assignment or subleasing and may deduct those
expenses from the annual rent payment.
4. Assignment/Sublease. Lessee may freely assign this Lease or sublet all or a portion of the
Property to a Qualified Farmer at any time during the Term without any prior notice to or consent
of Lessor and in Lessee's sole and absolute discretion; provided that Lessee shall provide written
notice to Lessor of any such assignment or sublease and the identity of the Qualified Farmer
sublessee within thirty (30) days of executing such assignment or sublease. Lessee may use any
form of lease for such assignment/sublease so long as such ass ignmentlsublease is consistent with
the terms of the Conservation Easement, and Lessee shall provide a full copy of the Conservation
Easement to such sublessee upon the execution of any such assignment or sublease of this Lease
by Lessee pursuant to this paragraph.
5. Utilities,• Taxes. Lessor shall continue to pay all charges for heat,electricity,gas, telephone,
water, trash collection, sewer and all other utilities, if any, servicing the Property during the Term
of the Lease and shall continue to pay existing real property taxes and customary increases, except
for any increases attributable to Lessee's activities on, or improvements to, the Property. Lessee
shall be solely responsible for the payment of any personal property taxes levied on the personal
property owned by Lessee and used on the Property.
36
6. Permitted Agricultural Operations. Lessee may use the Property only for the conduct of
Agricultural Activities, which include but are not limited to restoration, preparation and/or
maintenance of the Property for future Agricultural Activities or the conduct of commercial
Agricultural Activities itself. Notwithstanding the foregoing,Lessee may conduct,at its discretion,
any Agricultural Activities on the Property that are in compliance with all applicable laws and
ordinances and the terms and conditions of the Conservation Easement, including but not limited
to conducting sound farming practices as provided in the Conservation Easement and adhering to
an approved Agricultural Conservation Plan as described in Section 5.01 of the Conservation
Easement (as such Agricultural Conservation Plan may be amended pursuant to the terms of such
section). Lessee shall be solely responsible for the cost of all materials, equipment, and labor
required to conduct commercial Agricultural Activities on the Property, including but not limited
to sprays, trellises and other infrastructure and inputs, but may deduct from the rent paid to Lessor
those costs incurred by Lessee associated with the implementation of any restoration, preparation,
and maintenance of the Property for future Agricultural Activities. Lessee shall provide written
documentation of such costs to Lessor.
7. Future Improvements. Lessee may make such improvements to the Property as are
reasonably necessary for the permitted agricultural operations on the Property, provided that any
such improvement shall comply with the terms and conditions of the Conservation Easement as
well as any applicable law and regulation, whether municipal, state and/or federal, now in force,
or which may hereafter be in force, pertaining to the Property and Lessee's use and occupancy
thereof. Any cost and expense incurred as a result of the improvements shall be paid by Lessee.
8. Maintenance; Storage; Dumping. Lessee shall maintain all portions of the Property in a
reasonable state of cleanliness and orderly condition, free from trash, waste and debris; provided,
however, that the deposition of organic materials used on the Property for, or resulting from, the
conduct of Agricultural Activities that are conducted in accordance with this Lease and the
Conservation Easement is permitted. Lessee may store and/or deposit material and equipment
about the Property on a temporary basis and in accordance with sound agricultural practices.
9. Hazardous Substances. Lessee shall not install, store, treat, use, transport, or otherwise
dispose of any hazardous materials on, under, above, or in the Property unless such use, storage,
and transportation is in compliance with all applicable laws. As used in this Lease, the term
"hazardous substances" means any substance, material, or waste now or hereafter determined by
any federal, state, or local governmental authorities to be capable of posing a risk of injury to
health, safety, or property, including, but not limited to, any substance, material, or waste: (i)
containing asbestos,radioactive materials,petroleum,petroleum fractions,or petroleum distillates;
(ii)now or hereafter defined as a"hazardous waste,""hazardous material,""hazardous substance,"
"extremely hazardous waste," or "restricted hazardous waste" under any provision of New York
law; (iii) now or hereafter defined as "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. § 6903; or (iv) now or hereafter defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq.
37
10. Indemnification; Insurance. Lessee shall indemnify, defend, and hold harmless Lessor
from any and all claims, demands, lawsuits or judgments arising out of the use of the Property
during the Term of this Lease. Lessee agrees to carry and maintain at its own cost and expense
throughout the entire term of this Lease a policy or policies of insurance, in which Lessor shall be
named as an additional insured, insuring against death or injury to persons and damage to property
in an amount not less than$2,000,000.00 combined single limit for both bodily injury and property
damage liability type claims. Prior to taking possession of the demised Property, Lessee shall
deliver to Lessor a certificate of the insurance company issuing such insurance, evidencing such
coverage.
11. Default. In the event Lessee defaults in performing or observing any of the covenants or
conditions of this Lease and does not cure such default within thirty (30) days of Lessee's receipt
of written notice thereof by Lessor, or under circumstances where the default cannot reasonably
be cured within a thirty (30)-day period, fails to begin curing the violation within the thirty (30)-
day period, or does not continue diligently to cure the failure until finally cured, Lessor may, at
Lessor's option, terminate and cancel this Lease, re-enter the Property and dispossess Lessee and
remove its effects and take possession of the Property and hold the same as if this Lease had not
been made.
12. No Waiver. The failure of Lessor to insist upon the strict performance of any of the terms,
conditions, and covenants herein shall not be deemed a waiver of any right or remedy that Lessor
may have and shall not be deemed a waiver of any subsequent breach or default in the terms,
conditions and covenants herein contained.
13. Quarantine. Lessee shall not be required to pay rent for any portion of the Property during
any such time that such portion of the Property is quarantined by the New York State, Suffolk
County, or similar governmental agency. In such event, the annual rent shall be proportioned based
upon the area of the Property quarantined and the number of days the quarantine remains in effect.
14. Notice. Any bill, statement, or notice that either party desires to give or is required to be
given by the terms of this Lease shall be made in writing and delivered or mailed to the intended
recipient at the parties' respective addresses shown on the first page of this Lease (or to such other
address as such party may designate to the other pursuant to the terms of this section). Said notice
will be considered delivered on the day it is mailed, if applicable, or if not mailed, when actually
delivered to the recipient at the proper address. Any such notice shall be delivered personally; sent
by certified U.S. mail, return receipt requested, with sufficient postage prepaid; or sent by a
reputable overnight delivery service.
15. Amendment. This Lease may be amended only by an agreement in writing signed by the
parties to this Lease.
38
16. Termination. In addition to other events of termination provided for in this Lease, this
Lease may also be terminated at any time upon mutual consent of Lessor and Lessee.
17. Surrender of Property. Upon the expiration or termination of this Lease, Lessee shall quit
and surrender the Property to Lessor. On termination or expiration, Lessee shall have the right to
remove personal property at its expense, and shall have sixty (60) days after the expiration of the
Lease in which to remove any or all of said personal property. If Lessee fails to remove all said
personal property within 60 days after expiration of the Lease, then that personal property not
removed shall be deemed abandoned by Lessee and title to that property may be retained by Lessor.
18. Eminent Domain. If the whole or any part of the Property is acquired or condemned by
eminent domain for any public or quasi-public use or purpose, then the terms of this Lease shall
terminate from the date of title vesting in such condemning entity, and Lessee shall have no claim'
against Lessor for the value of any unexpired Term of this Lease.
19. Lien. This instrument shall not be a lien against said Property in respect to any mortgages
that hereafter may be placed against said Property and that the recording of such mortgage or
mortgages shall have preference and precedence and be superior and prior in lien to this Lease,
irrespective of the date of recording, and Lessee agrees to execute any such instrument, without
cost, which may be deemed necessary or desirable to further effect the subordination of this Lease
to any such mortgage or mortgages.
20. No Broker. Each party represents to the,other that no broker brought about the signing of
this Lease. In the event any person asserts a claim for a broker's commission or finder's fee, the
party on account of whose conduct or actions the claim is asserted will indemnify, defend and hold
the other party harmless from said claim.
21. Lease Runs with the Propegy. This Lease and all its terms shall run with the Property and
shall survive a sale of the Property by Lessor.
22. Successors and Assigns.The covenants,conditions,and agreements contained in this Lease
shall bind and inure to the benefit of Lessor and Lessee and their respective heirs, successors, and
permitted assigns.
23. Entire Agreement. Any prior negotiations, oral representations, or statements made by
either Lessor or Lessee related to this Lease (but expressly excluding the Conservation Easement
and all related documents) are merged into this Lease. All prior claims, counter-claims, defenses,
or actions are extinguished upon execution of this Lease. This Lease contains and fully integrates
the entire agreement between the parties, and it shall not be modified in any manner except by an
instrument in writing executed by the parties. If any term or provision of this Lease or the
application of this Lease to any person or circumstances shall, to any extent, be determined to be
invalid or unenforceable, the remainder of this Lease, or the application of such Lease's terms or
provisions to persons or circumstances other than those as to which it is held invalid or
39
unenforceable, shall not be affected, and each remaining term and provision of this Lease shall be
valid and shall be enforced to the fullest extent permitted by law.
24. Construction, This Lease shall be governed by and construed under the laws (statute and
common) of the State of New York. Paragraph headings and summaries are for convenience only.
In no event shall any such title or caption be deemed to be part of this Lease or interpretive of any
of its language or intent. No provision of this Lease is to be interpreted for or against either party
because that party or that party's legal representative drafted this Lease or any of its provisions.
Words of any gender in this Lease shall be held to include any other gender, and words in the
singular number shall be held to include the plural when the sense requires.
25. Time of Essence. Time is of the essence in this Lease and all the provisions relating to
timely performance shall be strictly construed.
IN WITNESS WHEREOF, the parties have executed this Lease on the date as first above written.
LESSOR LESSEE
0 tel r 12oa� Fa rm L LG Peconic Land Trust, Incorporated
B Y: BY: 12,'k
ITS: ITS: 'SA. ✓[� �� .`
40
Westcor Land Title Insurance Companfy
Title Number: W ADA-1637-S
SCHEDULE A DESCRIPTION C, _e LtSC)
ALL that certain plot, piece or parcel of land, situate, lying and being in the Town of
Southold, County of Suffolk and State of New York, known as Lot 2 as shown on Map of
Final Plat setoff for Parker E, Betsey B. and Chester M. Dickerson fled in the Suffolk
County Clerk's Office on 05/13/97 as Map No. 9998, bounded and described as follows:
BEGINNING at a point on the easterly side of Railroad Avenue(Youngs Avenue), said point
being at the division between Lots 1 and 2 on the above described map where the same
intersects the easterly side of Railroad Avenue;
RUNNING THENCE North 78 degrees 39 minutes East along the division line between Lots
1 and 2, 285.00 feet;
THENCE North 11 degrees 21 minutes West still along the division between Lots 1 and 2,
288.69 feet to a point and land now or formerly of Grigonis;
THENCE North 75 degrees 54 minutes 00 seconds East along last mentioned land 319.69
feet to a monument and land now or formerly of Grigonis;
THENCE South 11 degrees 34 minutes 10 seconds East along land now or formerly of
Grigonis and land now or formerly of Carroll a distance of 1063.71 feet to a monument and
land now or formerly of C.F. Van Duzer Gas Service Inc.;
THENCE South 10 degrees 53 minutes 50 seconds East along last mentioned land, 346.57
feet to a point and land now or formerly of County of Suffolk;
THENCE the following two (2) courses and distances along last mentioned land:
1. South 66 degrees 37 minutes 40 seconds West, 212.95 feet to a point;
2. South 11 degrees 08 minutes 30 seconds East, 199.95 feet to land now or
formerly of Luhrs;
THENCE South 66 degrees 38 minutes 40 seconds West along last mentioned lands,
150.00 feet to a monument;
THENCE South 11 degrees 21 minutes East, 13.25 feet to a monument and land now or
formerly of Huff;
THENCE South 79 degrees 47 minutes West along last mentioned land, 105.00 feet to a
point and land now or formerly of Harris;
THENCE North 11 degrees 21 minutes West along last mentioned land, 63.00 feet to a
point and land now or formerly of Dickerson;
point; THENCE North 79 degrees 47 minutes East, along last mentioned lands, 5.00 feet to a
i
Westcor Land Title Insurance Company
Title Number: W ADA-1637-S
Page 2
THENCE North 10 degrees 17 minutes West along last mentioned lands and land now or
formerly of Krauss, 245.00 feet to a point;
THENCE South 79 degrees 47 minutes West, 154.55 feet to the easterly side of Railroad
Avenue;
THENCE North 11 degrees 21 minutes 00 seconds West along the easterly side of
Railroad Avenue, 1082.00 feet to the point or place of BEGINNING.
FOR CONVEYANCING ONLY:Together with all rights title and interest of,in and to any streets and roads abutting the
above described premises,to the center tine thereor.
2