HomeMy WebLinkAboutL 12507 P 27, !
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS DEED OF DEVELOPMENT RIGHTS EASEMENT, is made on the 11th day of
Hay, 2007 at Southold, New York. The parties are NACARI ASS(X3,a, TES U.C, 95-40
Roosevelt Avenue, ]ackson Heights, New York 11372 (herein called ~Grantor"), and the
TOWN OF SOUTHOLD, a munidpal corporation, having Its prindpal office at 53095
Hain Road, P.O. Box 1179, Sou[hold, New York (herein call 'Grantee").
I, FlYE, qF__,~, Grantor is the owner In fee simple of certain real property consisting
of 25.6936 acres located at 4735 Cox Lane, Cutchogue in the Town of Southold, Suffolk
County, New York, part of SCTM# 1000-96-2-10, more fully described in SCHEDULE A
attached hereto, made a part hereof and hereinafter referred to as the "property"; and
as shown on the survey dated 3anuary 10, 2007 and certified .lanuary 26, 2007,
prepared by Peconic Surveyors, P.C.
14,'HERF__,4S, the Property Is located In the AC Zoning District of the Town of
Sou[hold which designation, to the extent possible, is intended to prevent the
unnecessary loss of those currently open lands which contain prime agricultural soils as
outlined In the Town Code of the Town of Sou[hold, Section 280-12 (the 'l'own Code").
The Property is designated as part of Suffolk County Tax Map Parcel Number1000-96-
02-10; and
WHEREAS, the ProperLy contains soils 25.69 acres of soil classified as Class ! and
Class 11 worthy of conservation as identified by the United States Department of
Agriculture Natural Resources ConservatJon Service Soil Survey of Suffolk County, New
York; and
WHEREAS, The Federal Farm and Ranch Lands Protection Program's purpose is
to purchase conservation easements on land with prime, unique, or other productive
soil for the purpose of protecting topsoil from conversion to nonagricultural uses (16
U.S.C. 3838h and 3838i). Under the authority of the Farm and Ranch Lands Protection
Program, the United States Deparb~ent of Agriculture Natural Resources ConservaUon
Service (hereinafter the ~United States" or ~NRCS") has provided N!NE HUNDRED AND
'I~NEkrly-FOUR THOUSAND-N!NE HUNDRED AND S]XTY-SZX DOLLARS AND 10/100
to the Grantee and for the acquisition of this Easement, entitling the United States to
the rights identified herein.
WHEREAS, the Property is part of the New York State Agricultural District #~.,
and the Grantor wishes to conUnue using the Property for agricultural production as
presently referenced in Section 247 of the General Municipal Law and/or der]ned in
Chapter 70 of the Town Code and including the producUon of crops, livestock and
livestock products as defined In Section 30~.(2)(a)-(i) of the NYS Agriculture and
Market~ Law, now or as it may be amended; and
WHEREAS, the Property Is currenUy in agricultural use as cover crop; and
WHEREAS, it is the policy of the Town of Southold, as articulated In the Town's
Master Plan of 1973, amended in 1986 and 1989 as adopted by the Town Board, Town
of Suuthold, and SecUon 272-a of the Town Law to protect environmentally sensitive
areas, preserve pdme 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 scenic and agricultural condition has
substantial and significant value as an aesthetic and agricultural resource in that it has
not been subject to any extensive development; and
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 aesthetic, natural, scenic and
agricultural resource; and
WHEREAS, Grantee has determined it to be desirable and benefidal and has
requested Grantor, for Itself and Its successors and assigns, to grant a Development
Rights Easement to Grantee in order to restrict the further development of the Property
while permitting compatible uses thereof;
NOW THEREFORE, in consideraUon of ONE M[LMON EIGHT HUNDRED AND
FORTY-NINE THOUSAND NINE HUNDRED AND TH1rRTY-N[NE DOLLARS AND 20 CENTS
($1,849,939.20) and other good and valuable consideration paid to the Grantor, the
receipt of which is hereby acknowledged, the Grantor does hereby grant, transfer,
bargain, sell and convey to the Grantee a Development Rights Easement, In gross,
which shall be binding upon and shall restrict the premises shown and designated as
the Property herein, more particularly bounded and described on Schedule "A" annexed
hereto and made a part of this Instrument.
TO HAVE AND TO HOLD said Development Rights Easement as hereinatter set
forth with respect to the Property unto the Grantee, Its successors and assigns forever,
reserving, however, for the direct use and benefit of the Grantor, its legal
representatives, succ~rs and assigns, the fee ownership and the exclusive right of
occupancy and of use of the Property, subject to the limitations, condition, covenants,
agreements, provisions and use restriction hereinafter set forth, which shall constitute
and shall be servitudes upon and with respect to the Property.
The Grantor, for himself, and for and on behalf of his legal representatives,
successors and assigns, hereby covenants and agrees as follows:
0.01 Grantors Ownership
Grantor warrants to the Grantee that Grantor Is the owner of the Property described in
Schedule A, free of any mortgages or liens, as set forth in Stewart TIUe Report # ST-S-
8362 and possesses the right to grant this easement.
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 Section 64 of the New York State Town Law and Section 247 of the
New York General Munidpal Law to acquire fee flue 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.
The parties recognize the environmental, natural, scenic or agricultural values of
the Property that foster and have the common purpose of preserving these values.
This Deed Is Intended to convey a Development Rights Easement on the Property by
Grantor to Grantee, exclusively for the purpose of preserving Its character In perpetuity
for its scenic, agricultural, environmental and natural values, Including its prime,
statewide important and unique agricultural soils, by preventing the use or development
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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 polities.
Governmental Reco_onltion
New York State has recognized the importance of pdvate efforts to preserve
rural land in a scenic, natural, and open condition through conservation restrictions by
ena~.b,ent of Environmental Conservation Law, ArUde 49-0301, et. seq. and General
Municipal Law, Section 247. Similar recognition by the federal government includes
Section 170(h) of the Internal Revenue Code and other federal statutes.
Grantee acknowledges by acceptance of this Development Rights Easement that
present uses of the Property are compaUble with the purposes of this Easement.
Grantee makes this determinaUon based on a survey dated .lanuary 10, 2007 prepared
by Peconlc Surveyors, P.C. and an Environmental Site Asse~___~ment dated .lanuary 15,
2007 prepared by Nelson, Pope & Voorhis, MC.
In consideration of the previously redted facts, mutual promises, undertakings,
and forbearances contained In this Development Rights Easement, the parties agree
upon its provisions, intending to be bound by it.
This Instrument conveys a Development Rights Easement (herein called the
"Easement"). This Easement shall consist of the IimitaUons, agreements, covenants,
use restrictions, rights, terms, and conditions redted herein. Reference to this
~Easemenr' or Its ~provisions" shall Include any and all of those limitations, covenants,
use restrictions, dghts, terms and condiUons.
1.02 Definition
"Development Rights" shall mean the permanent legal interest and dght to
prohibit or restrict the use of the Property for use other than agricultural production as
that term is referenced in Section 247 of the New York General Munidpal Law and/or
defined in Chapter 70 of the Town Code and including the production of crops,
livestock and livestock products as defined in Section 301(2)(a)-(i) of the NYS
Agriculture and Markets Law, now or as it may be amended. No future restdcUons or
limitation In the definition shall preclude a use which is permitted under the current law
and/or code.
This Easement shall he a burden upon and run with the Property in perpetuity.
This Easement shall run with the Property as an Incorporeal Interest in the
Property, and shall extend to and be binding upon Grantor, Grantors agents, tenants,
occupants, heirs, personal representatives, successors and assigns, and all other
individuals and enUUes. 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 agents, succe~ors,
and assigns, and the word "Grantee" when used herein shall Include all of those
persons or entities.
GRANTOR, for good and valuable consideration, hereby grants, releases, and
conveys to Grantee this Easement, In perpetuity, together with all dghts to enforce it.
Grantee hereby accepts this Easement in perpetuity, and undertakes to enforce it
against Grantor.
From and after the date of this Easement, the following acts, uses and practices
shall be prohibit~ forever upon or within the Property:
No structures may be erected or constructed on the Property except as permitted
by the Southold Town Land Preservation Committee and other applicable provisions of
the Town Code and 4.06 of this Easement. For purposes of this Easement, ~structure"
shall be defined as anything constructed or erected on or under the ground or upon
another structure or building, including walkways. Structures shall not include trellis,
fences, posts and wiring, farm roads or farm Irrigation systems, structures nece$~ry to
implement NRCS approved conservation practices, or fencing used in connection with
bonaflde agricultural production, Including without limitation fencing to keep out
predator animals. Approvals for these shall be as required by applicable provisions of
the Town Code.
3.02 Excavation and Removal of Materials: MlnlPn
The excavating or filling of the Property, except as may be necessary to
construct and maintain permitted structures and Improvements on the Property, or In
connection with necessary drainage and soil conservation programs, shall be prohibited,
without the prior written consent of Grantee. Mineral exploitation, and extraction by
any method, surface or subsurface, is prohibited. The removal of topsoil, sand, or
other materials shall not take place, nor shall the topography of the Property be
changed except to construct and maintain the permitted structures and Improvements
on the Property and for purposes of erosion control and soil management, or in
connection with normal agricultural/horticultural actJvities, without the pdor written
consent of Grantee.
The Property may not be subdivided pursuant to Town Law Sections 265, 276 or
277 or Section 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 Property
from which development rights are acquired Into two or more parcels, in whole or in
part. Notwithstanding this prevision, the underlying fee interest may be divided by
conveyance of parts thereof to heirs or next of kin by will or operation of law. Further,
notwithstanding the restrictions contained in this 3.03, Grantor may, subject to approval
by the Planning Board of the Town of Seuthold and as otherwise required by the Town
Code, reconflgure existing property lines with conUguous parcels for the purpose of
agricultural production. All resulUng parcels must be at least ~.0 acres of preserved
land. The United States Secretary of Agriculture shall be notified prior to such
conveyance and shall approve any reconfiguratlon of property lines prior to such
reconflguration.
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The dumping or accumulatJon of unsightly or offensive materials including, but
not limited to trash, garbage, sawdust, 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 fertilizatJon, composting and crop
removal.
The display of signs, billboards, or advertisements shall be prohibited, except
signs whose placement, number, and design do not significantly diminish the scenic
character of the Property and only for any of the following purposes: (a) to state the
name of the Property and the names and addresses of the occupants and the character
of the business conducted thereon, (b) to temporarily advertise the Property or any
portion thereof for sale or rent, (c) to post the Property to control unauthorized entry or
use, or (d) with the consent of the Grantor, to announce Grantee's easement. All 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 and septic systems on the Property shall be prohibited
without the prior written consent of the Grantee, except for drywells, drainage or
systems used to service permitted agricultural or conservation uses on the property.
Utilities must, to the extent possible, be constructed within 30 feet of the centedlne of
roads or driveways, and may be used solely to service the permitted structures on the
property.
The use of the Property for any perman .ent or temporary residential, commercial
or industrial use shall be prohibited. For the purposes of this section, agricultural
production, as that term Is referenced In Section 2,17 of the General Municipal Law and
/or defined in Chapter 70 of the Town Code, shall not be considered a commerdal use.
Under no circumstances shall athletic fields, golf courses or ranges, commercial airs[rips
and helicopter pads, motorcross biking, or any other improvements or activity
inconsistent with current or future agricultural production be permitted on the Property.
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 NRCS.
3.09 Conservation Plan
All agricultural operations on the Property shall be conducted in a manner
consistent with a resource management system (RNS) Conservation Plan (the
"Conservation Plan") prepared by the NRCS utilizing the standards and specifications of
the NRCS Field Office Technical Guide and approved by the Suffolk County Soil and
Water Conservation District. NI lands enrolled in the Farm and Ranch Lands Protection
will be subject to the Conservation Plan.
Grantor shall give Grantee copies of the Conservation Plan upon request and advise
Grantee of amendments thereto so as to enable Grantee to keep its records current.
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3.10 Conservation Comoliance Provisions of the Conservation Plan
As required by Section 12381 of the Food Security Act of 1985, as amended, the
Grantor, his/her heirs, successors, or assigns, shall conduct all agricultural operations
on the Property In a manner consistent with a conservation plan prepared in
consultation with NRCS and approved by the Suffolk County Soil and Water
ConservatJon District. This Conservation Plan shall be developed using the standards
and specifications of the NRCS Field Office Technical Guide (FOTG) and 7 CFR Part 12
that are in effect on May 11, 2007. However, the Grantor may develop and implement
a conservation plan that proposes a higher level of conservation and is consistent with
the NRCS Field Office Technical Guide standards and specifications. NRCS shall have
the right to enter upon the Property, with advance notice to the Grantor, in order to
monltor compliance with the ConservaUon Plan.
In the event of noncompliance with the Conservation Plan, NRCS shall work with
the Grantor to explore methods of compliance and give the Grantor a reasonable
amount of time, not to exceed twelve months, to take corrective aclJon. If the Grantor
does not comply with the ConservaUon Plan, NRCS will Inform Grantee of the Grantors
noncompliance. The Grantee shall take all reasonable steps (Including efforts at
securing voluntary compliance and, if necessary, appropriate legal action) to secure
compliance with the ConservaUon Plan following written noUflcaflon from NRCS that (a)
there is a substantial, ongoing event or drcumstance of non-compliance with the
Conservation Plan, (b) NRCS has worked with the Grantor to correct such
noncompliance, and (c) Grantor has exhausted its appeal dghts under applicable NRCS '
regulations.
If the NRCS standards and specifications for highly erodible land are revised after
the date of this Grant based on an Act of Congress, NRCS will work cooperatively with
the Grantor to develop and implement a revised conservation plan. The previsions of
this section apply to the highly erodible land conservaUon requirements of the Farm and
Ranch Lands Protection Program and are not intended to affect any other natural
resources conservation requirements to which the Grantor may be or become subject.
The use of the Property for a leaching or sewage disposal field shall be
prohibited, except to service the permitted structures on the property. The use of the
Property for a drainage basin or sump shall be prohibited, except In accordance with
sound agricultural management practices and the Conservation Plan In order to control
flooding or soil erosion on the Property.
3.12 Development Rioht~
The use of the acreage of this Property for purposes of calculating lot yield on
any other Property shall be prohibited. Grantor hereby grants to Grantee all existing
development rights (and any further development dghts that may be created through a
rezonihg of the Property) on the Property, except for the right to construct, maintain
and replace the pre-existing structures, and as provided in Section 4.06, and ~ parties
agree that such rights shall be terminated and extinguished and may not be used or
transferred to any other parcels.
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Subject to the provisions of AR'I'[CLE THREE, Grantor shall retain all other rights
of ownership In the Property, some of which are more particularly described in this
AR'F[CLE FOUR.
Grantor shall continue to have the right to exclusive possession of the Property.
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,
New York, State, or federal law.
4.04 Landscaoina Ac'dvitie~
Grantor shall have the right to continue the current and/or customary modes of
landscaping, pruning and grounds maintenance on the Property. Grantor shall have the
right to remove or restore trees, shrubs, or other vegetation when dead, diseased,
decayed or damaged or Interfering with agricultural production, to thin and prune trees,
to maintain or Improve the appearance of the property, and to mow the property.
4.05 Agricultural Activitl~
Grantor shall have the right to engage In all types of agricultural production as
the term Is referenced in Section 247 of the General Munidpal Law and/or defined in
Chapter 70 of the Town Code, and including the production of crops, livestock and
livestock products as defined in Section 301(2)(a)-(i) of the NYS Agriculture and
Markets Law, provided that such activity shall be conducted in accordance with the
purposes of this Easement and the Conservation Plan. Notwithstanding the definition of
agricultural production in Chapter 70 of the Town Code, structures shall be prohibited
except as set forth in Section 4.06.
A. Allowable Improvements. Grantor shall have the right to erect and
maintain the following Improvements on the Property, as may be permitted
by the Code of the Town of Southold and subject to the approval of 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:
Underground facilities used to supply utilities solely for the
use and enjoyment of the Property;
(11)
Relocation of barns from other properties and new
constru, ctlon, including drainage improvement structures,
provlded such structures are necessary for or accessory to
agricultural production and lot coverage does not exceed
two (2) percent of the Property;
(ill) Renovation, maintenance and repairs of structures built
pursuant to this Section 4.06, provided the primary purpose of
the structure remains agricultural production.
B. Conditions. Any allowable Improvements shall protect pdme agricultural
soils, agricultural production, open space and scenic vistas, and otherwise be consistent
with the Purpose of this Easement.
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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 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 two (2) per cent lot coverage
limitation In Section 4.06A(ii) and to review and written approval of Grantee,
pursuant to applicable provisions of the Town Code.
Grantor shall have the dght to convey, mortgage or lease all of its interest In the
Property but only subject to this Easement. Grantor shall promptly notify Grantee and
the United States Secretary of Agriculture of any conveyance of any interest in the
Property, including the full name and mailing address of any transferee, under any such
conveyance. The Instrument of any such conveyance shall spedfically 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, spedflcally 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 dghts hereunder. Grantor hereby gives notice that the premises
are being conveyed to Peconic Land Trust, Incorporated, 296 Hampton Road, P.O. Box
1776, Southampton, New York 11969, immediately following the granting of this
easement. Any reference in this Easement to Grantor shall be deemed to refer to
Grantor*s successors as to any pedod after such conveyance.
GRANTOR~ OBI 1GAT[ON~
5.0! Taxes and Assessm0nt~
Grantor shall continue to pay all taxes, levies, and assessments and other
govemmental or municipal charges, which may become a lien on the Property,
including any taxes or levies Imposed to make those payments. This provision shall not
preclude Grantor from contesting such amounts and from deferring payment during
such contest period. The failure of Grantor to pay all such taxes, levies and
assessments and other governmental or munldpal charges shall not cause an alienation
of any rights or interests acquired herein by Grantee.
5.02 Uabilitv and [ndemnificaflor)
Grantee and the United States have no obligations whatsoever, express or
implied, relating to the use, maintenance or operation of the Property. Grantee's or the
United States' exercise of, or failure to exercise, any right conferred by this Easement.
shall not be deemed to be management or control of the activities on the Property.
Grantee shall not be liable to Grantor for injuries or death to persons or damage to
property or any other harm in connection with Grantee's administration and/or
enforcement of this Easement, unless such harm is due to the negligence of Grantee or
its agents, in which case liability shall be apportioned accordingly. Grantor agrees to
indemnify and hold harmless Grantee, and the United States of Amedca from any and
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all costs, claims or liability, including but not limited to reasonable attorneys fees arising
from any personal injury, acddents, negligence or damage relating to the Property, or
any claim thereof, unless due to the negligence of Grantee or its agents, in which case
liability shall be apportioned accordingly. Grantor further agrees to indemnify and hold
harmless Grantee, and the United States of Amedca, from and against any and all
claims, costs, expenses, fines, penalties, as,~___~.ments, citations, personal injury or
death, and the like adsing from or out of the existence (actual or alleged) of Hazardous
Materials (as defined In Section $.02A) whatsoever on or under the Property.
5.02A Environmental Warranty
"Environmental Law" or "Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, guldelines,
policies or requirements of any governmental authority regulating or Imposing
standards of liability or standards of conduct (Including common law) concerning air,
water, solid waste, hazardous materials, worker and community right-to-know, hazard
communication, noise, radioactive material, resource protection, subdivision, inland
wetlands and watercourses, health protection and similar envlronmental health, safety,
building and land use as may now or at any time herealter be in
"Hazardous Materials' means any petroleum, petroleum products, fuel oil, waste oils,
explosives, reactive materials, Ignitable materials, corrosive materials, hazardous
chemicals, h~_rdous wastes, hazardous substances, extremely hazardous substances,
toxic substances, toxic chemicals, radioactive materials, infectious materials and any
other element, compound, mixture, solution or substance which may pose a present or
potential hazard to human health or the environment.
Grantor warrants that it is In compliance with and shall remain in compliance with, all
applicable Environmental Laws. Grantor warrants that there are no notices by any
governmental authority of any violation or alleged violation of; non-compliance or
alleged non-compliance with or any liability under any Environmental Law relating to
the operations or conditions .of the Property.
Except as may be set forth in an environmental report obtained by Grantee prior to the
date of this Easement, Grantor warrants that it has no actual knowledge of a release or
threatened release of any Hazardous Materials on, at, beneath or from the Property.
Moreover Grantor hereby promises to defend and indemnify the Grantee and hold
harmless and indemnify the Grantee and the United States against all litigation, claims,
demands, penalties and damages, Including reasonable attorneys' fees, arising from or
connected with the release or threatened release of any Hazardous Materials on, at,
beneath or from the Property, or adsing from or connect~l with a violation of any
Environmental Laws by Grantor or any other prior owner of the Property. Grantors
Indemnification obligation shall not be affected by any authorizations provided by
Grantee to Grantor with respect to the Property or any restoration activities carried out
by Grantee at the Property; provided, however, that Grantee shall be responsible for
any Hazardous Materials contributed alter this date to the Property by Grantee.
6.01 Entry and ][nsoection
Grantee shall have the right to enter upon the Property at reasonable Umes, not
more frequently than annually without Grantors consent, upon pdor 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 Inspec'don to determine whether this Easement and its
purposes and provisions are being upheld. Representatives of the United States
Department of Agriculture shall also have the right to enter the Property for monitoring
conservation plan implementation, upon prior notice to Grantor and not more frequently
than annually without Grantors consent. Grantee shall not have the right to enter upon
the Property for any other purposes, except as provided in Seddon 6.03, or to permit
access upon the Property by the public
Grantee shall have the dght to require the Grantor to re, Lore the Property to the
condition required by this Easement and to enforce this right by any action or
proceeding that Grantee may reasonably deem necessary. However, Grantor shall not
be liable for any changes to the Property resulting from causes beyond the Grantors
control, including, without limitation, fire, flood, storm, earth movement, wind, weather
or from any prudent action taken by the Grantor under emergency condiUons to
prevent, abate, or mitigate significant injury to persons or to the Property resulting from
such causes.
6.03 Enforcement Riahts of Grantee
Grantor acknowledges and agrees that Grantee's remedies at law for any
violaUon of this Easement may be Inadequate. Therefore, in addition to, and not in
limitation of, any other rights of Grantee hereunder at law or in equity, in the event any
breach, default or violation of any term, provision, covenant or obligaUon on Grantors
part to be observed or performed pursuant to this Easement is not cured by Grantor
within fifteen (:t5) days notice thereof by Grantee (which notice requirement Is
expressly waived by Grantor with respect to any such breach, default or violation which,
in Grantee's reasonable judgment, requires immediate action to preserve and protect
any of the agricultural values or otherwise to further the purposes of this Easement),
Grantee shall have the right at Grantors sole cost and expense and at Grantee's
election,
(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 pdor thereto, or
(iii]
To seek or enforce such other legal and/or equitable relief or remedies es
Grantee deems necessary or desirable to ensure compliance with the
terms, conditions, covenants, obligations and purposes of this Easement;
provided, however, that any failure, delay or election to so act by Grantee
shall not be deemed to be a waiver or a forfeiture of any right or available
remedy on Grantee's part with respect to such breach, default, or violation
or with respect to any other breach, default or violation of any term,
condition, covenant or obligation under this Easement.
(iv)
The cure period in this Section 6.03 may be extended for a reasonable
Ume by Grantee is such restoration cannot reasonably be accomplished
within 15 days.
6.04 Notice
All notices required by this Easement must be written. Notices shall be delivered
by hand or registered mail, return receipt requested, or by certified mall, with sufficient
prepaid postage affixed and with return receipts requested. Mailed noUce to Grantor
shall be addressed to Grantors address as recited herein, or to such other address as
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Grantor may designate by notice in accordance with this Section 6.04. Hailed notice to
Grantee shall be addressed to its principal office, recited herein, marked for 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. Where notice is required to the United States of America or to the
NRCS, such notice shall be delivered to U.S. Department of Agriculture, NRCS, c/o
Commodity Credit CorporaUon, State Conservationist, The Galleries of Syracuse, 441
South Sallna Street, Suite 354, Syracuse, New York 13202-2450. Notice to the NRCS
shall be deemed notice to the United States of America.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this ARTICLE SlX 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 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
At the mutual request of Grantor, Grantee, and Unit~l States of America, 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 (Purpose), extinguish or modify this Easement in accordance
with applicable law. In that case, the mere cessation of farming on the Property shall
not be construed to be grounds for extinguishment of this Easement.
Notwithstanding the foregoing, if condemnation by exercise of the power of
eminent domain approved In advance by the United States Department of Agriculture
NRCS, make impossible the continued use of the Property for Purpose of this Easement
as described in Section 0.03 (Purpose) herein, the re..~l, fictions may be extinguished by
judicial proceeding. In either case, upon any subsequent sale, exchange or involuntary
conversion by the Grantor, Grantee shall be entiUed to a portion of the proceeds from
any subsequent sale or other disposition of the Property, or title insurance proceeds, in
accordance with Section 7.12 (Proceeds) herein.
7.0! Entire Understanding
This Easement contains the entire understanding between its parties concerning
its subject matter. Any pdor agreement between the parties concerning its subject
matter shall be merged into this Easement and superseded by it.
This Conservation Easement may be amended only with the written consent of
Grantee and Grantor at the time of any such amendment and with the written approval
of the Secretan/of the United States Department of Agriculture. Any such amendment
shall be consistent with the Purpose of this Easement and shall comply with the NYS
ConservaUon Law or any regulaUons promulgated thereunder. Any such amendment
shall be duly recorded.
This Easement Is mede with the Intention that it shall qualify as a Conservation
Easement in perpetuity under LR.C. Section 170(h). The parties agree to amend the
provisions of this Easement If such amendment shall be necessary, to entiUe Grantor to
meet the requirements of Code Section 170(h). Any such amendment shall apply
i!
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 and other applicable laws
upon adoption of a local law authorizing the alienation of such rights and Interests,
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 the property rights
or Interests that were acquired by the Town prior to any such amendment. The United
States of Amedca shall also consent to any such alienation.
In addition to the limitations set forth above, Grantee shall have the right,
subject to the provisions of Section 7J.1 (Contingent Rights of United States of
America) herein, to transfer all or part of this Easement to any public agency, or private
non-governmental organization, that at the time of transfer Is a ~qualified organization"
under Section 170(h) of the Code, provided that transferee expressly agrees to assume
the responsibility imposed on the Grantee by this Easement.
Any easement transfer must be approved by the Grantor or any subsequent
owner, and the United States Department of Agriculture, NRCS. If the Grantee ever
ceases to exist, a court of competent Jurisdiction may transfer this Easement to another
qualified public agency that agrees to assume the responsibilities Imposed by this
Easement. The United States Deparb,ent of Agriculture, NRCS, will be notified in
writing, in advance of such transfer. The NRCS State Office must approve the choice of
any new non-governmental organlzation in advance of any transfer of this Easement.
Any provision of this Easement restricting Grantors 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.
New York Law applicable to deeds and easements pertaining to land located
within New York shall govern this Easement in all respects, including validity,
construction, interpretation, breach, violation and performance.
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 t~e 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 prevision
Invalid, then that prevision shall be given such InterpretaUon as would render It valid
and be consistent with the purposes of this Easement. Any rule of strict construction
designed to limit the breadth of the rest~ictions 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 dght to use the Property, except
12
as otherwise recited herein, be construed at all Umes and by all parties to effectuate its
purposes.
Nothing contained in this Easement grants, nor shall be interpreted to grant, to
the public any right to enter upon the Property or to use any images of the property for
public or commerdal use.
The warranties and representations made by the par'des in this Easement shall
sun,ye Its execution.
Grantee shall record this Easement in the land records of the office of the Clerk
of the County of Suffolk, State of New York.
The headings, flues and subtitles herein have been inserted solely for convenient
reference, and shall be Ignored in Its construction.
7.11 Contin_eent Rights of the United States of Arrlgrlra
[n the event that Grantee fails to enforce any of the terms of this Easement, as
determined in the sole discretion of the Secretary of the U.S. Department of Agriculture,
the said Secretary of Agriculture and his or her succe$~r and assigns shall have the
right to enforce the terms of this Easement through any and all authorities available
under Federal or State law. In the event that Grantee attempts to terminate, transfer
or otherwise divest Itself of any rights, title or interest of this Easement without I~
prior consent of said Secretary and without payment of consideration to the Unlt~
States as provided herein, then, at the option of such Secretary, all right, tiUe and
interest In this Easement shall become vested in the United States of America.
The grant of this Easement gives dse to a property right, immediately vested In
Grantee, which, for purposes of calculatJng proceeds from a sale or other disposition of
the Property as contemplated under Section 6.06 (Extinguishment of Easement), shall
have a value equal to a percentage of the value of the Property unencumbered by this
Easement (the "Proportionate Share"). The Proportionate Share is determined by
dividing the value of this Easement, calculated as of the date hereof, by the
unencumbered value of the Property, also calculated as of the date hereof. The
Proportionate Share Is 74.27%. The Proportionate Share shall remain constant
(subJect to reasonable adjustment to the extent permissible under Section 170(h) of the
Internal Revenue Code for any improvements which may hereafter be made on the
Property).
if any part or all of this Easement is extinguished pursuant to Section 6.06, the
proportional shares of the Grantee and the United States of America are 50.01%, and
49.99%, respectively, represen§ng the proportion each party contributed to the
purchase price of the easement
IN WI-I'NESS WHEREOF, Grantor has execut~l and delivered and Grantee has accepted
and received this Deed of Easement on the day and year set forth above.
13
Stewart Title Insurance Company
l'itle No, ST-$-8362
Schedule A Description
(AME.N~)ED .2/?/07.)
ALL that. certain phs. piece ar paxcael of land lying, and &,lng at t,~tchogue. Town of
SoutholtL County of Suffolk and Stale of Now York. more parlicul=l.y bounded :tad described as
follows:
BI"-GINNIN(; at a monument s,'t in the Sc:uthwesterly si~ al' Cox's I,an~: at t.he division
line b~tween prentises de~rihed I~rda and lands now ur l'ormetly Anne M;u'ie Goetlea'
Revocable Wing Tn~st (To',vn of Southold Development Rights) which said point is distant
752.03 feet Nonhw~ste. rly tk~m a railroad monument:
RUNNING IIlENCE along said last muntioned lunds thc follov.'ing 2 coum:~, attd
I. St~uth 30 degrees 17 minutes 52 see.ads West 616.16 feet:
2. South .56 degrees 25 minutes 48 seconds 'l~nt 562.18 f~t roa monument anti lands nov.' or
/i:rmerly LIRR:
THENCE alm,g said lands of LIRR:
I. South 47 dcgeecs 53 minutes 22 seconds West 2(X}.00 feet
South 56 degrees ~_ nth~utes 48 seconds East 15.48 feet:
3. South 47 degrees 50 minutes 32 seconds West 329.80 feel to lands now or formerly RI-IX
Coq~.
'FIlENCE along ~id lands now ~*t fom~erly RI-IX Corp.:
I. North 56 dega'te~ 36 minutes 48 ~'C,~nds West 1301.46 feet:
2. North 34 degn..es 22 minutes 00 sucotids East 514. t4 fo'et to a monument:
3. North 55 ~¢gree~. 39 minutes 00 ~'o:nds West 10.00 feet to a m,)nument and lundin nov.' or
fornmrly Cutch~,gue Fife District:
TIIENCE along said tends now nr formerly Cuv'hogue i"ite District Nc,nh 38 degn.'es 43
minutes 20 seconds I::.'~*t 552.12 feet to a monument and lands now or fi~nnarly Minnie Borawa:
TIIENCE along said lands now or fomaerly Minnie Borawa Noah 40 degn:us 22
minutes 36 seconds l?.a~ 69.90 fe.e.-t to a monument n the Southwesterly ~ide of ('ox's Lane:
TllENCE South 56 cluett:es 22 minutu~ 13 seconds East 213.45 feet Il, the re:,,.:rved ~u'ca:
'rIII£NCE along the reserved :ire:e:
I. Soudt 30 degrees 17 minutes 52 sec,auds West 200.00 feet:
2 South 56 degrees 22 millute~ )3 so.:onds East 40U.6g feet:
3. Nolth 30 degl~.es 17 minutes .52 scx:onds Eust 200.00 feet to the S,.,ulhv.'est side of Cox's
Lmne:
THENCE South 56 degna.'s 22 minutes 13 degrees Ea..il along the Southwesterly side t,f
Cox's Lane i50.2.5 f~t to t~e mnnument, the point or plate of BEGINNING.
'I'OGETI IER with ail right, title -'md interest of the party of the fi'st part. in and to tho land lying
,n the stt~t in front of and adjoining said.premises.
ACKNOWLEDGED AND ACCEPTED:
' F
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUTHOLD, Grantee
Acceptance of Property Interest by the Natural Resources Conservation Service
The Natural Resources Conservation Service, an agency of the United States
Government, hereby accepts and approves the foregoing conservation easement deed,
United States of America.
Authorf '-~z-~ed'Signatory forl~lARJLYN CA~IDY S'I-EPI-~Ns~C~N~N
State of New York )
coun or ), ss:
On the ./Ott~' day of t4a'~cu'c~rilyn ~fassi in the year 2007 before
me,
the
under~gned,
personally appeared dy Stephenson, personally known to me or proved to
me on the basis of satisfactory evidence to be the Individual (s) whose name (s) Is (am)
subscribed to the within Instrument and acknowledged to me that he/she/they executed
the same in his/her/their capadty (les), and that by his/her/their signature(s) on the
insl~ument, the individual(s), or the person upon behalf of which the individual(s) acl~l,
executed the instrument.
Signature/office of indi¥idu~l taking acknowledgement
~ Public, State of Ne~ Y~
No. 01LA6138507
STATE OF N~ YORK ) ~e~ed In Al~y ~
COU~ OF SUF~) ~: ~mm~ E~ir~ ~ 19, ~
~ls/~y of~ In ~e y~r 20~7 ~m me, ~e undemign~,
~~of~~~ ' pe~llykn~n~meorp~ed
~ ~n~ m ~ t~ I~ividual(s) who~ name(s) is
(am) su~rl~ ~ ~e within in.merit and a~wl~g~ to me ~at h~W
~u~d ~e ~me In hls/her/t~ir ~ciW(ies), and ~at by his/her/~elr signature(s)
on ~e In~rument, ~e Individual(s), or ~e pe~n u~n behalf of which ~e
individu~(s) a~, exe~d the i~menL
14 '~°/o
Notary Public
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
On this/! day of ~'~Y' in the year 2007 before me, the undersigned,
personally appeared ~w~ ~ $~r~-~=,~/ , 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(les), 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.
~"~'~~'~-- PATRICIA L. FALLON
Notary Public Notary Public, Stat~ Of New York
No. 01 FA4950146
Qualified in Suffolk County
Oomml~ion Expires Al~'il 24, o7~//
C:~ly OocumentsVInne\Town of Southo~d Oeeds of Development RJghts~.AI~NITHFEDERAL.doc
Number of pages
TORRENS
Serial #
Certificate #
Prior Cfi. #
Deed. Mortgage Instrument
3
Page / Filing Fee
Deed / Mortgage Tax Stamp
FEES
Handling
TP-Sg4
,~, 00
Notation
F-*,-521 ? (County)
EA-5217 (Slate)
R.P.T.S.A.
Comm. of Ed.
Affidavit
Certified Copy ~
Sub Total
~. o0
Reg. Copy
Other
Sub Total
/'~'-- Grand Total
07015,.6.~98 zooo ogsoo 0200 02.0002
Tax Service (RLpA
Agency \~_~,~,~
Verification
6 I Satisfaction/Discharges/Release List Property O~w?ets Mailing Address
RECORD & RETURN TO.
RECORDED
2~7 Nag 29 I0:02s54
Judi th icl. Pa~cale
CLERk( OF
S~JFFOLK C~JNTV
L DO0012507
P 027
DTtt 06-34569
Recording / Filing Stamps
Mortgage Amt.
I. Basic Tax
2. Additional Tax
Sub Total
Spec. / AssR.
or
Spec. / Add.
TOT. MTG TAX
Dual Town =. Dual County ..
Held for Appointment
Transfer Tax ~_~ ~ ~
Mansion Tax '~
The property covered by this motgage is
or will b~ improved by a one or two
family dwelling only,
YES ~ or NO
:If NO, see appropriate tax clause on
page # of this instrument.
. 18- o?
5 Community, Preservation FrOnd
Consideration Amount $~,~'~ r/jq __
CPF Tax Duc , S~
/// / Improved
Vacant Land ~
TD / O~
TD
7 I Title Company Information
Co. Name ~'7'&7~..~7-' ~'/r'Z~'
* [ Title ~ ~_~. ~_
Suffolk County Recording & Endorsement Page
This page fo~s p~m of the attached ~ d~ ~~ ~ ~~
(SPECIFY TYPE OF ,NSTRUME~¢e.' A
The pmmisis herein is situated in
SU~FOL~ COUSTY, ~W VOR~.
In the ~b~ship of ~ M ~ &~
made by:
In thc VILLAGE
or HAMLET of
BOXES & THROUGH 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument= DEEDS/DUD
~er of Pages= 17
Receipt Number : 07-0050907
TRANSFER TAX NUMBER: 06-34569
District:
1000
Deed Amount~
Section= Block:
096.00 02.00
EXAMINED AND CHARGED AS FOLLOWS
$1,849,939.00
Recorded:
At:
LIBER:
PAGE:
Lot:
Received the Following Fees For Above Instrument
Exempt
Page/Filing $51.00 NO Handling
COE $5.0'0 NO NYS SRCHG
EA-CTY $5.00 NO EA-STATE
TP-584 $5.00 NO Cert.Copies
HPT $30.00 NO SCTM
Transfer t~x $0.00 NO Con~.Pres
Fees Paid
TRANSFER TAX NUMBER:
06~34569
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
Judith A. Paecale
County Clerk0 Suffolk County
05/29/2007
10:02~54 ~
D00012507
027
010.002
Exempt
$5.00 NO
$15.00 NO
$75.00 NO
$21.25 NO
$0.00 NO
$0.00 No
$212.25
PLEASE TYPE OR PRESS FIRMLY WHEN WRITING ON FORM
, iNSTRUCTIONS: http://www.orps.state.ny.us or PHONE (518) 473-7222
FOR COUNTY 'USE'bNry
I c1 SW. Cod. I('~, q~.~', q I REAL PROPERTY TRANSFER REPORT
1.~,~ 4735 I Cox Lane j
I Southold (Cutchogue) I I
Town of Southold
BIIli~e If othor t~an bu.~' addre~ (at fx)tbx~ of ~orm) I I I
e.s..u f MACARI ASSOCIATES, LLC I {
I S LE NFORM ON I
CommMclal
ApM.'MN
I S"/ ~, / z~'71
Commun~y Sewice
Public S~vice
(~NNt thl bOXel bdOW U tMy a~phK
t Ownumhip Type il C~ndomimum []
A
B
C
D
E
F
I
I , , .... O,O,0l ~k~___
A~r~MENT INFORMATION - Data should ref~ the last Final A*~.ldnt Roll a~ Tax Bill
1000-096.00-02.00-010.000 (p/o)
Southol d NY 11971
I I
/~ J SELLER
Kombrink Lisa
(631) j 287-3939
NEW YORK STATE
COPY
53095
I Main Road, P.O. Box 1179
I I I
C~.,,.CA~ON [
certify Ilmt a]l of the i~-m.,i ,,f hrc~t~ m~ ~ ~ t,m a~ I~e a~ [~ fie I~ kll ~ my himl~ a~ ~ a~ 1 ~e~M ~ b ~
·OWN OF SOUTHOL~UYER % BUYER'S A~RNEY