HomeMy WebLinkAboutL 13177 P 17 1111111 Illl IIIII 11111 IIIII IIIII IIIII IIIII IIIII IIII IIII
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SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT Recorded: 11/09/2022
Number of Pages: 29 At: 11 : 49:33 AM
Receipt Number : 22-0155533
TRANSFER TAX NUMBER: 22-07620 LIBER: D00013177
PAGE : 017
District: Section: Block: Lot:
1000 095 . 00 04. 00 001 . 000
EXAMINED AND CHARGED AS FOLLOWS
Deed Amount: $0. 00
Received the Following Fees For Above Instrument
Exempt Exempt
Page/Filing $145. 00 NO Handling $20. 00 NO
COE $5 . 00 NO NYS SRCHG $15 . 00 NO
TP-584 $5. 00 NO Notation $0.50 NO
Cert.Copies $36.25 NO RPT $200 . 00 NO
Transfer tax $0 . 00 NO Comm. Pres $0 . 00 NO
Fees Paid $426. 75
TRANSFER TAX NUMBER: 22-07620
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
JUDITH A. PASCALE
County Clerk, Suffolk County
TT
NEC!1RDED
Number of pages 2022 Novi 09 11:49:33 AM
JUDITH A. PASCALE
CLERK OF
This document will be public SUFFOLK COUNTY
record. Please remove all L D00013177
Social Security Numbers F 017
prior to recording. DT# 22-07620
Deed/Mortgage Instrument Deed/Mortgage Tax Stamp Recording/Filing Stamps
3 1 FEES
Page/Filing Fee S — Mortgage Amt.
1.Basic Tax
Handling 20. 00
2. Additional Tax
TP-584 Sub Total
Notation 60
Spec./Assit.
or
EA-52 17(County) Sub Total Spec../Add.
EA-5217(State) TOT.MTG.TAX
Dual Town Dual County
R.P.T.S.A. Held forAppointment
Comm.of Ed. S. 00 Transfer Tax
Mansion Tax
Affidavit � �'
Certified Copy
3�,ar The property covered by this mortgage is
J
or will be improved by a one or two
NYS Surcharge 15. 00 a56 as family dwelling only.
Sub Total /r' a _YES orNO
49 Other Grand Total ,75' If NO, see appropriate tax clause on
page k of this instrument.
10 3_9
4 Dist.1000 Section095.00 Block 04.00 Lot 001.000 -5 Community Preservation Fund
Real Property p1�P � Consideration Amount$
Tax Service a7 ♦SUFFOLK 1
AgencyCOUNTY � CPF ax Due $
Verification
/ Improved
5 Satisfactions/Discharg RECORD&eases
Property Owners Mailing Address
TO: Vacant Land
Twomey Latham Shea Kelley Dubin&Quartararo
33 West Second St. TD
PO Box 9398
TD
Riverhead, NY 11901
Atin.:Jennice Williams TD
Mail to:Judith A. Pascale,Suffolk County Clerk 7 Title Company Information
310 Center Drive, Riverhead, NY 11901 Co.Name
www.suffolkcountyny.gov/clerk Title#
8 Suffolk County Recording & Endorsement Page
This page forms part of the attached Correction Grant of Development Rights Easement made
by. (SPECIFY TYPE OF INSTRUMENT)
Mattituck Farm Holdings, LLC The premises herein is situated in
SUFFOLK COUNTY,NEW YORK.
TO In the TOWN of Southold
Town of Southold In the VILLAGE
or HAMLET of
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
over
CORRECTION GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS CORRECTION GRANT OF DEVELOPMENT RIGHTS EASEMENT is by
and between MATTITUCK FARM HOLDINGS LLC with offices at 2299 North Sea
Road, Southampton, New York 11968 (herein called "Grantor"), and the TOWN
OF SOUTHOLD, a municipal corporation, having its principal office at 53095
Main Road, P.O. Box 1179, Southold, New York 11971-0959 (herein called
"Grantee").
INTRODUCTION
WHEREAS, Grantor is the owner in fee simple of certain real property
located in the Town of Southold, Suffolk County, New York, identified as part
of SCTM #1000-95.-4-1, more fully described in SCHEDULE "A" attached
hereto and made a part hereof and hereinafter referred to as the "Property"
and shown on the survey prepared by John Minto, L.L.S. of JM Land Surveying,
dated September 10, 2021 (a reduced copy of which is attached hereto and
made a part hereof andereinafter referred to as the "Survey"); and
CNOV�t5 0-5 �c4uU_ If) .
WHEREAS, the Property is located in the Agricultural-Conservation
(A-C) Zoning District of the Town of Southold; and
WHEREAS, the Property contains soils classified as Class I and Class II
worthy of conservation as identified by the United States Department of
Agriculture Soil Conservation Service's Soil Survey of Suffolk County, New
York; and
WHEREAS, the Property is part of the New York State Agricultural
District #1, and the Grantor wishes to continue using the Property for
agricultural production as defined in this Easement; and
WHEREAS, the Property is currently used for agriculture; and
WHEREAS, it is the policy of the Town of Southold (the "Town"), as
articulated in the Southold Town Comprehensive Plan dated February, 2020
as adopted by the Town Board, Town of Southold, and §272-a of the New
York State Town Law ("Town Law") to protect environmentally sensitive areas,
preserve prime agricultural soils, to protect the scenic, open space character
of the Town and to protect the Town's agricultural economy; and
WHEREAS, the Property in its present condition has substantial and
significant value as a scenic and open agricultural resource (the "Conservation
Values") since it has not been subject to any substantial development; and
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WHEREAS, Grantor and Grantee recognize the value and special
character of the region in which the Property is located, and Grantor and
Grantee have, in common, the purpose and objective of protecting and
conserving the present state and inherent, tangible and intangible values of
the Property as an agricultural resource; and
WHEREAS, Grantee has determined it to be desirable and beneficial and
has requested Grantor, for itself and its successors and assigns, to grant a
Development Rights Easement to Grantee in order to restrict the further
development of the Property while permitting compatible uses thereof;
WHEREAS, THIS CORRECTION GRANT OF DEVELOPMENT RIGHTS
EASEMENT is being recorded to correct and confirm in Section 6.06 hereof the
understanding of Grantor and Grantee with respect to the potential application
of Treas. Reg. Section 1.170A-14(g)(6)(ii) to the perpetual protection of the
Property in a Grant of Development Rights Easement between MATTITUCK
FARM HOLDINGS LLC Grantor, and the TOWN OF SOUTHOLD Grantee, dated
December 3, 2021, which was delivered for recording in the land records of
the Office of the Clerk of the County of Suffolk, State of New York, on
December 17, 2021, and was subsequently recorded on February 25, 2022,
in Liber 131.44, page 503.
NOW THEREFORE, the importance of the protection of the Property to
the Town of Southold is further illustrated by the payment to Grantor of FIVE
HUNDRED SIXTY-SIX THOUSAND NINE HUNDRED FORTY-SIX DOLLARS AND
99/100 ($566,946.99), as partial consideration for the conveyance of this
Easement, the receipt of which is hereby acknowledged, the Grantor does
hereby grant, transfer, bargain, sell and convey to the Grantee a Development
Rights Easement, which shall be binding upon and shall restrict the premises
shown and designated as the Property herein, more particularly bounded and
described on Schedule "A" annexed hereto and made a part of this instrument.
TO HAVE AND TO HOLD said Development Rights Easement and the
rights and interests in connection with it and as hereinafter set forth with
respect to the Property unto the Grantee, its successors and assigns forever,
reserving, however, for the use and benefit of the Grantor, its legal
representatives, successors and assigns, the fee title to the property, and the
exclusive right of occupancy and of use of the Property, subject to the
limitations, condition, covenants, agreements, provisions and use restrictions
hereinafter set forth, which shall constitute and shall be servitudes upon and
with respect to the Property.
The Grantor, for itself, and for and on behalf of its legal representatives,
successors and assigns, hereby covenants and agrees as follows:
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0.01 Grantor's Warranty
Grantor warrants and represents to the Grantee that Grantor is the
owner of the Property described in Schedule A, free of any mortgages or liens,
except as set forth in Stewart Title Insurance Company, Title Report
#71174658, and possesses the right to grant this easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a municipal
corporation organized and existing under the laws of the State of New York
State and is authorized under §64 of Town Law and §247 of the New York
State General Municipal Law ("General Municipal Law") to acquire fee title or
lesser interests in land, including development rights, easements, covenants,
and other contractual rights which may be necessary or desirable for the
preservation and retention of agricultural lands, open spaces and natural or
scenic resources.
0.03 Purpose
The parties recognize the value of the Property resulting from its
agricultural use and further recognize the common purpose of preserving this
value by limiting the uses of the Property. This instrument is intended to
convey a Development Rights Easement on the Property by Grantor to
Grantee, exclusively for the purpose of preserving in perpetuity the
Conservation Values of the Property, by preventing the use or development of
the Property for any purpose or in any manner contrary to the provisions
hereof, in furtherance of federal, New York State and local conservation
policies.
0.04 Governmental Recognition
New York State has recognized the importance of private efforts to
preserve rural land in a scenic, natural, and open condition through
conservation restrictions by the enactment of General Municipal Law §247.
Similar recognition by the federal government includes §170(h) of the Internal
Revenue Code ("IRC") and other federal statutes.
3
0.05 Baseline Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property are compatible with the purposes
of this Easement. In order to aid in identifying and documenting the present
condition of the Property's agricultural and other resources and to otherwise
aid in identifying and documenting such values as of the date hereof, to assist
Grantor and Grantee with monitoring the uses and activities on the Property
and ensuring compliance with the terms hereof, Grantee has prepared, with
Grantor's cooperation, an inventory of the Property's relevant features and
conditions (the "Baseline Documentation"). This Baseline Documentation
includes, but need not be limited to, a survey prepared by John Minto, L.L.S.
of JM Land Surveying, dated September 10, 2021, and a Phase 1
Environmental Site Assessment dated September 23, 2021, by Cashin
Technical Services, Inc.
Grantor and Grantee acknowledge and agree that in the event a
controversy arises with respect to the nature and extent of the Grantor's uses
of the Property or its physical condition as of the date hereof, the parties shall
not be foreclosed from utilizing any other relevant or material documents,
surveys, reports, photographs or other evidence to assist in the resolution of
the controversy.
0.06 Recitation
In consideration of the previously recited facts, mutual promises,
undertakings, and forbearances contained in this Development Rights
Easement, the parties agree upon its provisions, intending to be bound by it.
ARTICLE ONE
THE EASEMENT
1,01 Type
This instrument conveys a Development Rights Easement (herein called
the "Easement"). This Easement shall consist of the limitations, agreements,
covenants, use restrictions, rights, terms, and conditions recited herein.
Reference to this "Easement" or its "provisions" shall include any and all of
those limitations, covenants, use restrictions, rights, terms and conditions.
4
1.02 Definitions
"Development Rights" shall mean the permanent legal interest and right
to restrict the use of the Property to uses or purposes consistent with the
terms of this Easement, including agricultural production as that term is
presently referenced in §247 of the General Municipal Law and defined in
Chapter 70 of the Town Code of the Town of Southold (the "Town Code" or
"Code") now, or as they may be amended, and including the production of
crops, livestock and livestock products as defined in §301(2) of the New York
State Agriculture and Markets Law ("Agriculture and Markets Law"), now, or
as said §301(2) may be amended. No future restrictions in said laws or
limitations in the definitions set forth in said laws shall preclude a use that is
permitted under the current law as of the date of this Easement.
"Improvement" shall mean any addition to raw land, such as structures,
fences, wells or drainage.
"Lawn" shall mean an area of land on which grasses or other durable
plants are grown and maintained at a short height and principally used for
aesthetic or other non-agricultural purposes. Land that is in agricultural
production, including sod farming, or land in a fallow or otherwise idled
manner, is not "Lawn."
"Riding Academy" shall mean a business use of a lot for any of the
following purposes: the letting of horses for hire to individuals or groups
whether supervised or unsupervised, horseback riding instruction or the
holding of horse shows or other equine events.
"Structure" shall mean anything constructed or erected on or under the
ground or upon another structure or building, including walkways. Structures
shall not include trellis, posts and wiring, farm irrigation systems, nursery
mats, temporary animal shelters or fencing necessary for agricultural
operations or to mark the boundaries of the Property, including without
limitation fencing to keep out predator animals, including deer. Approvals for
those items listed in the preceding sentence shall be as required by applicable
provisions of the Town Code.
1.03 Duration
This Easement shall be a burden upon and run with the Property in
perpetuity.
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1.04 Effect
This Easement shall run with the Property as an incorporeal interest in
the Property, and shall extend to and be binding upon Grantor, Grantor's
agents, tenants, occupants, heirs, personal representatives, successors and
assigns, and all other individuals and entities and provides Grantee with the
right to administer, manage and enforce the Easement as provided herein.
The word "Grantor" when used herein shall include all of those persons or
entities. Any rights, obligations, and interests herein granted to Grantor
and/or Grantee shall also be deemed granted to each and every one of its
subsequent agents, successors, and assigns, and the term "Grantor and/or
Grantee" when used herein shall include all of those persons or entities.
ARTICLE TWO
SALE
GRANTOR, for FIVE HUNDRED SIXTY-SIX THOUSAND NINE HUNDRED
FORTY-SIX DOLLARS AND 99/100 ($566,946.99) and such other good and
valuable consideration, hereby grants, releases, and conveys to Grantee this
Easement, in perpetuity, together with all rights to enforce it. Grantee hereby
accepts this Easement in perpetuity, and undertakes to enforce it against
Grantor.
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts, uses and
practices shall be prohibited forever upon or within the Property:
3.01 Structures
No structures may be erected or constructed on the Property except as
after review by the Southold Town Land Preservation Committee ("Land
Preservation Committee") for consistency with the Purpose and other terms
of this Easement, and as permitted under other applicable provisions of the
Town Code and Sections 1.02 and 4.06 of this Easement.
3.02 Excavation and Removal of Materials• Mining
The excavating, regrading, scraping or filling of the Property shall be
prohibited, without the prior written consent of Grantee, including but not
limited to review by the Land Preservation Committee.
6
Mineral exploitation, and extraction of any mineral, including but not
limited to soil, gravel, sand and hydrocarbons, by any method, surface or
subsurface, is prohibited.
The removal of topsoil, sand, or other materials from the Property is
prohibited, nor shall the topography of the Property be changed, except in
connection with normal agricultural/horticultural activities, all of which shall
require the prior written consent of Grantee, including but not limited to from
the Land Preservation Committee.
3.03 Subdivision
Except as provided in this Section 3.03, the Property may not be further
subdivided pursuant to Town Law §§265, 276 or 277 or §335 of the Real
Property Law, as they may be amended, or any other applicable State or local
law, "Subdivision" shall include the division of the portion of the Property from
which the development rights are acquired into two or more parcels, in whole
or in part.
Grantor may, subject to approval by the Planning Board of the Town of
Southold and as otherwise required by applicable law, modify or alter lot lines
between the Property and adjacent parcels, or subdivide the Property,
provided that all resulting parcels contain at least 10 acres of preserved
agricultural land subject to a development rights easement or other
conservation instrument.
Notwithstanding this Section 3.03, upon the death of Grantor or its
Members, the underlying fee interest may be divided by conveyance of parts
thereof to Grantor's executor, trustee, heirs or next of kin by will or operation
of law.
3.04 Dumping
The dumping or accumulation of unsightly or offensive materials
including, but not limited to trash, garbage, sawdust, ashes or chemical waste
on the Property shall be prohibited. This prohibition shall exclude materials
used in the normal course of sound agricultural practices on the Property,
including fertilization, composting and crop removal.
3.05 Signs
The display of signs, billboards, or advertisements shall be prohibited,
except signs whose placement, number, and design do not significantly
7
diminish the scenic character of the Property and only for any of the following
purposes: (a) to state the name of the Property and the names and addresses
of the occupants and the character of the business conducted thereon, (b) to
temporarily advertise the Property or any portion thereof for sale or rent, (c)
to post the Property to control unauthorized entry or use, or (d) with the
consent of the Grantor, to announce Grantee's easement. Signs are subject
to regulatory requirements of the Town.
3.06 Utilities
The creation or placement of overhead utility transmission lines, utility
poles, wires, pipes, wells or drainage systems ("utilities") on the Property to
service structures approved pursuant to §4.06 shall be prohibited without the
prior written consent of the Grantee. Underground utilities must, to the extent
possible, be constructed within 30 feet of the centerline of any roads or
driveways, and may be used to service the permitted structures on the
Property, and on adjacent properties subject to a development rights
easement or other conservation instrument. Existing underground irrigation
systems may be repaired or replaced without the consent of or review by the
Grantee.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, the use of the
Property or structures on it for any residential, commercial or industrial uses,
permanent or temporary, including but not limited to a riding academy, shall
be prohibited. For the purposes of this section, agricultural production, as
that term is presently referenced in §247 of the General Municipal Law and
defined in Chapter 70 of the Town Code, now, or as they may be amended,
and including the production of crops, livestock and livestock products as
defined in §301(2) of the Agriculture and Markets Law, now or as said §301(2)
may be amended, shall not be considered a commercial use.
Uses, improvements and activities permitted by the Town Code now or
in the future on agricultural lands protected by a development rights easement
or other instrument, including but not limited to farmstands, shall not be
considered a commercial use. No improvements, uses or activities inconsistent
with current or future agricultural production shall be permitted on the
Property. Under no circumstances shall athletic fields, golf courses or ranges,
commercial airstrips and helicopter pads, motorcross biking, or any other
improvements or activity inconsistent with current or future agricultural
production be permitted on the Property.
Grantor shall not establish or maintain a Lawn on the Property.
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Hunting is permitted on the Property provided it does not interfere with
agricultural production and is conducted in accordance with sound agricultural
management practices.
3.08 Soil and Water
Any use or activity that causes or is likely to cause soil degradation or
erosion or pollution of any surface or subsurface waters shall be prohibited.
This prohibition shall not be construed as extending to agricultural operations
and practices (including, without limitation, the use of agrochemicals such as
fertilizers, pesticides, herbicides, and fungicides) that are in accordance with
sound agricultural management practices of the Natural Resources
Conservation Service ("NRCS").
3.09 Drainage
The use of the Property for a leaching or sewage disposal field shall be
prohibited. The use of the Property for a drainage basin or sump shall be
prohibited, except in accordance with sound agricultural management
practices and in order to control flooding or soil erosion on the Property or
onto adjoining properties.
3.10 Lot Yield: Future Development
Except as provided herein, the use of the acreage of this Property for
purposes of calculating lot yield on any other Property shall be prohibited.
Grantor hereby relinquishes to Grantee all existing rights to develop the
Property (and any such further rights that may be created through a rezoning
of the Property) except for the right to construct, maintain, alter and replace
any pre-existing structures, and to construct new structures, as such rights
may be provided in Section 4.06 or elsewhere in this Easement, and the
parties agree that any other such rights shall be terminated and extinguished
and may not be used or transferred to any other parcels.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain all
other rights of ownership in the Property, some of which are more particularly
described in this ARTICLE FOUR.
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4.02 Possession
Grantor shall continue to have the right to exclusive possession of the
Property.
4.03 Use
Grantor shall have the right to use the Property in any manner and for
any purpose consistent with and not prohibited by this Easement, as well as
applicable local, State, or federal law. Grantor shall have the right to use the
Property for uses, improvements and activities permitted by the Town Code,
now or in the future, on agricultural lands protected by a development rights
easement or other instrument, including, but not limited to farmstands and
for educational or training programs related to agricultural production or
activities.
Grantor shall also have the right to use the Property for traditional
private recreational uses, provided such recreational uses are conducted for
the personal enjoyment of Grantor, are compatible with farming, and are
otherwise consistent with and do not derogate from or defeat the Purpose of
this Easement or other applicable law. These uses shall not be offered or
provided for commercial purposes, including the commercial gain of Grantor
or others. Hunting to remove predators which harm agriculture production
shall not be deemed a recreational use or a use for commercial' purposes.
4.04 Landscaping Activities
Grantor shall have the right to continue the current and/or customary
modes of landscaping, pruning and grounds maintenance on the Property as
evidenced by the documentation set forth in Section 0.05. Grantor shall have
the right to remove or restore trees, shrubs, or other vegetation when deemed
to be invasive, dead, diseased, decayed or damaged or interfering with
agricultural production or other permitted uses of the Property, including
activities permitted in Section 4.06, to thin and prune trees to maintain or
improve the appearance of the Property or to benefit permitted structures and
improvements, and to mow the property. Notwithstanding the above, Grantor
is prohibited from establishing or maintaining a Lawn on the Property, as set
forth in 3.07.
4.05 Agricultural Production and Activities
Grantor shall have the right to engage in all types of agricultural
production as the term is presently referenced in §247 of the General
10
Municipal Law and defined in Chapter 70 of the Town Code, now, or as they
may be amended, and including the production of crops, livestock and
livestock products as defined in §301(2) of the Agriculture and Markets Law,
now, or as said §301(2) may be amended. No future restriction in said laws
or limitations in the definitions set forth in said laws shall preclude a use that
is permitted under the current law as of the date of this Easement.
Grantor may offer "U-Pick" operations and/or the use of a corn maze to
the general public, provided that such activities are conducted in conjunction
with seasonal harvests, do not interfere with agricultural production and are
otherwise consistent with and do not derogate from or defeat the Purpose of
this Easement or other applicable laws.
Notwithstanding the definition of agricultural production in Chapter 70
of the Town Code or any successor chapter, structures shall be prohibited
except as set forth in Section 4.06 herein and as permitted by the Town Code
now or in the future on agricultural lands protected by a development rights
easement or other instrument, including but not limited to farmstands.
4.06 Structures
A. Allowable Improvements. Grantor shall have the right to erect, alter
and maintain the following improvements on the Property, as may be
permitted by the Town Code and subject to review by the Town of Southold
Land Preservation Committee, provided the improvements are consistent with
and do not derogate from or defeat- the Purpose of this Easement or other
applicable laws:
(i) Underground facilities used to supply utilities solely for
the use and enjoyment of the Property, or on adjoining
lands subject to a development rights easement or other
conservation instrument;
(ii) New construction, including drainage
improvement structures, provided such structures are
related to or accessory to agricultural production;
(iii) Renovation, maintenance, alteration, expansion and
repairs of any existing structures or structures built or
permitted pursuant to this Section 4.06, provided the
purpose of the structure remains agricultural;
(iv) Additional types of structures, improvements or uses
consistent with the purposes of this Easement which
11
arise from future developments in agricultural production
or scientific, mechanical or technological advances in
agricultural production.
B. Conditions. Any allowable improvements shall protect prime
agricultural soils, agricultural production, and otherwise be consistent with the
Purpose of this Easement.
C. Environmental Sensitivity During Construction. The use and
location of any improvement permitted hereunder shall be consistent with the
purposes intended herein, and construction of any such improvement shall
minimize disturbances to the environment. Grantor shall employ erosion and
sediment control measures to mitigate any storm water runoff, including but
not limited to minimal removal of vegetation, minimal movement of earth and
minimal clearance of access routes for construction vehicles.
D. Replacement of Improvements. In the event of damage resulting
from casualty loss to an extent which renders repair of any existing
improvements or improvements built or permitted pursuant to this Section
4.06 impractical, erection of a structure of comparable size, use, and general
design to the damaged structure shall be permitted in kind and within the
same general location, subject to the review and written approval of Grantee,
pursuant to applicable provisions of the Town Code.
4.07 Notice
Grantor shall notify Grantee, in writing, before the construction of any
permanent or temporary structures as permitted in Section 4.06 herein and
shall file all necessary applications and obtain all necessary approvals that
may be required by this Easement or by the Town Code, and shall provide
documentation as may be required for such applications.
4.08 Alienability
Grantor shall have the right to convey, mortgage or lease all of its
remaining interest in the Property, but only subject to this Easement. Grantor
shall promptly notify Grantee of any conveyance of any interest in the
Property, including the full name and mailing address of any transferee, and
the individual principals thereof, under any such conveyance. The instrument
of any such conveyance shall specifically set forth that the interest thereby
conveyed is subject to this Easement, without modification or amendment of
the terms of this Easement, and shall incorporate this Easement by reference,
specifically setting for the date, office, liber and page of the recording hereof.
12
The failure of any such instrument to comply with the provisions hereof shall
not affect Grantee's rights hereunder.
4.09 Further Restriction
Nothing in this Easement shall prohibit or preclude Grantor from further
restricting the use, improvements or structures on the Property. Any such
further restrictions shall be consistent with and in furtherance of the general
intent and purpose of this Easement as set forth in Section 0.03.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments and
other governmental or municipal charges, which may become a lien on the
Property, including any taxes or levies imposed to make those payments,
subject, however, to Grantor's right to grieve or contest such assessment.
The failure of Grantor to pay all such taxes, levies and assessments and other
governmental or municipal charges shall not cause an alienation of any rights
or interests acquired herein by Grantee.
5.02 Indemnification
Grantor shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or
any of its officers, employees, agents or independent contractors, all of which
shall be reasonable in amount, arising from injury due to the physical
maintenance or condition of the Property caused by Grantor's actions or
inactions, provided same arises when Grantee or its agents is lawfully on the
Property, or from any taxes, levies or assessments upon it or resulting from
this Easement, all of which shall be considered Grantor's obligations.
5.03 Third Party Claims
Grantor shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, or expenses, charges or liens to Grantee or
any of its officers, employees, agents or independent contractors, all of which
shall be reasonable in amount, resulting: (a) from injury to persons or
damages to property arising from any activity on the Property; and (b) from
actions or claims of any nature by third parties arising out of the entering into
or exercise of rights under this Easement, excepting any of those matters
13
arising solely from the acts of Grantee, its officers, employees, agents, or
independent contractors, or those matters arising when such persons are not
lawfully on the property. Grantor as used in Section 5.02 and 5.03 shall refer
only to the owner of the Premises at the time the injury, damage, action or
claim arose.
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee shall have the right to enter upon the Property at reasonable
times, upon prior notice to Grantor, and in a manner that will not interfere
with Grantor's quiet use and enjoyment of the Property, for the purpose of
inspection to determine whether this Easement and its purposes and
provisions are being upheld. Grantee shall not have the right to enter upon
the Property for any other purposes, except as provided in Section 6.02 and
6.03, or to permit access upon the Property by the public.
Notwithstanding the above, Grantee's use of drones shall be limited to
purposes of Enforcement of this Easement and to inspection under this
Easement when traditional means are not available, and shall occur only with
prior notice to Grantor and consent for same, which consent shall not be
unreasonably withheld.
6.02 Restoration
Grantee shall have the right to require the Grantor to restore the
Property to the condition immediately prior to the injury or damage
complained of and to enforce this right by any action or proceeding that
Grantee may reasonably deem necessary. However, Grantor shall not be liable
for any changes to the Property resulting from causes beyond the Grantor's
control, including, without limitation, fire, flood, storm, earth movement,
wind, weather or from any prudent action taken by the Grantor under
emergency conditions to prevent, abate, or mitigate significant injury to
persons or to the Property or crops, livestock or livestock products resulting
from such causes.
6.03 Enforcement Rights of Grantee
Grantor acknowledges and agrees that Grantee's remedies at law for
any violation of this Easement may be inadequate. Therefore, in addition to,
and not as a limitation of, any other rights of Grantee hereunder at law or in
14
equity, in the event any breach, default or violation of any term, provision,
covenant or obligation on Grantor's part to be observed or performed pursuant
to this Easement is not cured by Grantor within thirty (30) days' notice thereof
by Grantee or such longer period as is reasonable during which time Grantor
is curing or attempting to cure such breach, default or violation, taking into
account extreme weather conditions or catastrophic events (which such time
period for notice is expressly waived by Grantor with respect to any such
breach, default or violation which, in Grantee's reasonable judgment, requires
immediate action to preserve and protect any of the agricultural values or
otherwise to further the purposes of this Easement), Grantee shall have the
right at Grantor's sole cost and expense and at Grantee's election, taking into
account extreme weather conditions or other emergency conditions or other
emergency or catastrophic events:
(i) To institute a suit to enjoin or cure such breach, default or
violation by temporary and/or permanent injunction,
(ii) To enter upon the Property and exercise reasonable efforts to
terminate or cure such breach, default or violation and/or to cause
the restoration of that portion of the Property affected by such
breach, default or violation to the condition that existed prior
thereto, or
(iii) To enforce any term provision, covenant or obligation in this
Easement or to seek or enforce such other legal and/or equitable
relief or remedies as Grantee reasonably deems necessary or
desirable to ensure compliance with the terms, conditions,
covenants, obligations and purposes of this Easement; provided,
however, that any failure, delay or election to so act by Grantee
shall not be deemed to be a waiver or a forfeiture of any right or
available remedy on Grantee's part with respect to such breach,
default, or violation or with respect to any other breach, default
or violation of any term, condition, covenant or obligation under
this Easement.
Grantor shall pay either directly or by reimbursement to Grantee, all
reasonable attorneys' fees, court costs and other expenses incurred by
Grantee (herein called "Legal Expenses") in connection with any proceedings
under this Section, as approved by the Court.
The cure period in this Section 6.03 may be extended for a reasonable
time by Grantee if such restoration cannot reasonably be accomplished within
thirty (30) days.
15
6.04 Notice
All notices required by this Easement must be written. Notices shall be
delivered electronically and by first class mail, or by hand or by certified mail,
return receipt requested, with sufficient prepaid postage affixed and with
return receipts requested, or by nationally recognized overnight courier
(USPS, Federal Express, etc.). Mailed notice to Grantor shall be addressed to
Grantor's address as recited herein, or to such other address as Grantor may
designate by notice in accordance with this Section 6.04. Mailed notice to
Grantee shall be addressed to its principal office recited herein, marked to the
attention of the Supervisor and the Town Attorney, or to such other address
as Grantee may designate by notice in accordance with this Section 6.04.
Notice shall be deemed given and received as of the date of its manual delivery
or three business days after the date of its mailing.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this ARTICLE SIX shall
not have the effect of waiving or limiting any other remedy or relief, and the
failure to exercise or the delay in exercising any remedy shall not constitute a
waiver of any other remedy or relief or the use of such other remedy or relief
at any other time.
6.06 Extinguishment of Easement/Condemnation/Proceeds
A. Termination; Extinguishment. If a subsequent unexpected
change in the conditions surrounding the Property that is the subject of a
donation under this Easement has made impossible or impractical the
continued use of the Property for conservation purposes, the conservation
purpose can nonetheless be treated as protected in perpetuity if the
restrictions are terminated or extinguished by judicial proceeding and all of
Grantee's Proceeds (as hereinafter defined) from a subsequent sale or
exchange of the Property are used by Grantee in a manner consistent with the
conservation purposes of the original contribution. A judicial proceeding is the
exclusive manner in which this Easement may be terminated or extinguished.
In the event of extinguishment of this Easement in whole or in part, the
provisions of this Section 6.06 shall survive such extinguishment. The mere
cessation of farming on the Property shall not be construed to be grounds for
extinguishment of this Easement.
B. Grantee's Proportionate Share. In connection with any
condemnation, termination, or extinguishment of this Easement, "Grantee's
Proceeds" from such action shall be the greater of the amount determined as
Grantee's Proceeds under Section 6.06(C) or Section 6.06(D) below.
16
C. Grantee's Proceeds. At the mutual request of Grantor and
Grantee, a court with jurisdiction may, if it determines that conditions
surrounding the Property have changed so much that it becomes impossible
to fulfill the Purpose of this Easement described in Section 0.03, extinguish or
modify this Easement in accordance with applicable law. The mere cessation
of farming on the Property shall not be construed to be grounds for
extinguishment of this Easement.
If at any time the Property or any portion thereof shall be taken or
condemned by eminent domain, by the Grantee or by any other governmental
entity, then this Easement shall terminate with respect to the Property, or
portions thereof so taken or condemned, and the Property shall not be subject
to the limitations and restrictions of this Easement. In such event, the
Grantor, its successors or assigns, shall not be required to pay any penalties,
but the value of the Property shall reflect the limitations of this Easement.
Any condemnation award payable to the Grantor shall be in proportion to the
value attributable to the residual agricultural value of the Property. If the
condemnation is undertaken by an entity other than the Grantee, then the
remaining portion of the condemnation award shall be payable to the Grantee
in proportion to the value attributable to the development rights transferred
hereby.
D. Grantee's Proceeds; Internal Revenue Code. For the purposes of
Grantor's claim of a federal income tax deduction under IRC Section 170(h)
and associated IRS Regulations, the fair market value of the Easement at the
time of condemnation, termination or extinguishment shall be determined by
multiplying (i) the fair market value of the Property unencumbered by the
Easement at the time of termination by (ii) the ratio of the value of the
Easement at the time of this grant to the value of the Property without
deduction for the value of the Easement at the time of the grant. The ratio
(Grantee's "Proportionate Share") referred to in the preceding sentence shall
be established by a qualified appraisal for federal income, gift and estate tax
deduction purpose, pursuant to IRS Regulation §1.170A-13 and §1.170A-
14(h), and the ratio shall remain constant.
Pursuant to IRS Regulation §1.170A-14(g)(6)(H), after termination of
this Easement, in whole or in part, on a subsequent sale, exchange or
involuntary conversion of the Property, Grantee must be entitled to a portion
of the proceeds (without diminution for any costs, expenses, or prior liens)
that is at least equal to Grantee's Proportionate Share as established by this
Section 6.06(D). All of Grantee's Proceeds, as determined in this Section
6.06(D), must be used by the Grantee in a manner consistent with the
conservation purposes of the original contribution. The Grantee makes no
17
representation as to the tax consequences of the transaction contemplated by
this Easement. Grantor will obtain independent tax counsel and be solely
responsible for compliance requirements of the Internal Revenue Code.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between its parties
concerning its subject matter. Any prior agreement between the parties
concerning its subject matter shall be merged into this Easement and
superseded by it.
7.02 Amendment
This Easement may be amended only with the written consent of
Grantee and current owner of the Property and in accordance with any
applicable State and local laws. Any such amendment shall be consistent with
the Purpose of this Easement and shall comply with the Town Code and any
regulations promulgated hereunder, and shall be duly recorded.
This Easement is made with the intention that it shall qualify as a
Conservation Easement in perpetuity under Internal Revenue Code §170(h).
The parties agree to amend the provisions of this Easement if such
amendment shall be necessary, to entitle Grantor to meet the requirements
of §170(h). Any such amendment shall apply retroactively in the same
manner as if such amendment or amendments had been set forth herein.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be alienated
except pursuant to the provisions of Chapter 70 of the Town Code or any
successor chapter and other applicable laws, upon the adoption of a local law
authorizing the alienation of said rights and interest, following a public hearing
and, thereafter, ratified by a mandatory referendum by the electors of the
Town of Southold. No subsequent amendment of the provisions of the Town
Code shall alter the limitations placed upon the alienation of those property
rights or interests which were acquired by the Town prior to any such
amendment. Further, this Easement is only transferable by Grantee to any
public agency, or private non-governmental organization, that at the time of
transfer is a "qualified organization" under §170(h) of the Internal Revenue
Code, provided that transferee expressly agrees to assume the responsibility
18
imposed on the Grantee by this Easement, whereupon all references to
Grantee shall be to such entity.
Any easement transfer must be approved by the Grantor or any
subsequent owner. If the Grantee ever ceases to exist, a court of competent
jurisdiction may transfer this Easement to another "qualified organization"
that agrees to assume the responsibilities imposed by this Easement.
7.04 Severability
Any provision of this Easement restricting Grantor's activities, which is
determined to be invalid or unenforceable by a court shall not be invalidated.
Instead, that provision shall be reduced or limited to whatever extent that
court determines will make it enforceable and effective. Any other provision
of this Easement that is determined to be invalid or unenforceable by a court
shall be severed from the other provisions, which shall remain enforceable
and effective.
7.05 Governing Law
New York law applicable to deeds to and easements on land located
within New York shall govern this Easement in all respects, including validity,
construction, interpretation, breach, violation and performance.
7.06 Interpretation
Regardless of any contrary rule of construction, no provision of this
Easement shall be construed in favor of one of the parties because it was
drafted by the other party's attorney. No alleged ambiguity in this Easement
shall be construed against the party whose attorney drafted it. If any
provision of this Easement is ambiguous or shall be subject to two or more
interpretations, one of which would render that provision invalid, then that
provision shall be given such interpretation as would render it valid and would
be consistent with the purposes of this Easement and the perpetual protection
of the Conservation Values. 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 effect the purposes of this Easement as intended by the
parties. The parties intend that this Easement, which is by nature and
character primarily negative in that Grantor has restricted and limited his right
to use the Property, except as otherwise
recited herein, be construed at all times and by all parties to effectuate its
purposes.
19
7.07 Public Access
Nothing contained in this Easement grants, nor shall it be interpreted to
grant, to the public, any right to enter upon the Property, or to use images of
the Property. Grantee may use images of the Property only for non-
commercial reporting of this Easement.
7.08 Warranties
The warranties and representations made by the parties in this
Easement shall survive its execution.
7.09 Recording; Effective Date
This is a Deed of Correction to conform to the understanding and
agreement of Grantor and Grantee in particular with respect to the provisions
of Section 6.06 in a Grant of Development Rights Easement delivered for
recording in the land records in the Office of the Clerk of the County of Suffolk,
New York, on December 17, 2021. The provisions of this GRANT OF
DEVELOPMENT RIGHTS EASEMENT shall apply nunc pro tunc, shall be effective
as of December 17, 2021, and shall be fully enforceable as of that date.
Grantee shall record this Deed of Correction in the land records of the office
of the Clerk of the County of Suffolk, State of New York.
7.10 Headings
The headings, titles and subtitles herein have been inserted solely for
convenient reference, and shall be ignored in its construction.
7.11 Counterparts
This Easement may be executed in several counterparts and by each
party on a separate counterpart, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has
accepted and received this Grant of Development Rights Easement on the day
and year set forth above, to be effective pursuant to the provisions of Section
7.09.
20
ACKNOWLEDGED AND ACCEPTED:
MATTITUCK FARM HOLDINGS LLC, Grantor
//6,7 .
By:
Erie T. Klein, Secretary
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUTHOLD, Grantee
BY:
Scott A. Russell, Supervisor
STATE OF NEW YORK )
COUNTY OF N E!y 0124) SS.'
On the y t+, day of O IQ _., in the year 2022 before me, the undersigned,
personally appeared Eric T. Klein, 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 w ich
Signat the individuals)acted, executed the
instrument.
ih
o ice of individu 1 thking acknowledgement
JILLIAN HELEN THOMPSON
NOTARY PUBLIC-STATE OF NEW YORK
No.01TH6424828
Qualified in New York County
My Commission Expires 11-08-2025
21
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS.'
On this day of . in the year 1022 before me, the undersigned,
personally appeared Scott A. Russell, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose names) 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 beha f which th ndividual(s) acted, executed
the instrument.
Signatur%ice of individu king acknowledgement
Christopher 0,MaKouvor
NOTARY PUBLIC,STATE;OF VHw YORK
Pegistmdon No.01MC4794444
Qualifled in Suffolk County
Commission Expires August 31,242
22
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TITLE Title Number: 71174658
AS TO DEVELOPMENT RIGHTS EASEMENT AREA:
ALL that certain plot, piece or parcel of land lying and being at Mattituck, in the Town of Southold,
County of Suffolk and State of New York, more particularly bounded and described as fo3lows:
BEGINNING at a monument at the intersection of the southerly line of Oregon Road and the easterly
line of Alvahs Lane, distant 345.39 feet along the southerly side of Oregon Road to the true point of
BEGINNING;
RUNNING THENCE still along the southerly line of Oregon Road North 48 degrees 30 minutes 00
seconds East, 330.04 feet to land now or formerly of Mattituck Holdings LLC,-
RUNNING
LC;RUNNING THENCE along said land South 37 degrees 21 minutes 10 seconds East, 823.82 feet to a
concrete monument and other land now or formerly of Mattituck Holdings LLC;
RUNNING THENCE along said land, South 57 degrees 00 minutes 30 seconds West, 706.50 feet to the
easterly side of Alvahs Lane;
RUNNING THENCE along said easterly line of Alvahs Lane, North 34 degrees 54 minutes 30 seconds
West, 452.23 feet;
RUNNING THENCE North 48 degrees 29 minutes 58 seconds East, 376.34 feet;
RUNNING THENCE North 41 degrees 30 minutes 02 seconds West, 267.88 feet to the southerly side of
Oregon Road and the point or place of BEGINNING.
BEING AND INTENDED TO BE part of the same premises described in a certain deed
from Island Creek Properties, LLC to Mattituck Farm Holdings, LLC, dated 211412006,
recorded 2/23/2006 in Liber 12427 Page 312.
FOR CONVEYANCING ONLY:TOGETHER with all right,title and interest of the party of the first part,of,in and to any streets and
roads abutting the above described premises to the center lines thereof.
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