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HomeMy WebLinkAboutL 12513 P 74-- - ,.~, ~~ DEED OF CONSERVATION EASEMENT THIS CONSERVATION EASEMENT ("Easement") is granted this a2'd~ day of ~~ , 2007, by N & J MANAGEMENT CO., LLC ("Grantor") having an address at 38A Fifty Acre Road, St. James, New York 11780 to THE TOWN OF SOUTHOLD ("Grantee"), a New York municipal corporation having an ofFce at 53095 Main Road, P.O. Box 1179, Southold, New York 11971. WHEREAS: A. Grantor is the owner of certain real property consisting of fi7.6 acres located at 4735 Westphalia Road, Mattituck, in the Town of Southold, Suffolk County, New York, designated as # 1000-113-13-1.2, of which ±16.5 acres is subject to this Deed of Conservation Easement (hereinafter, the "Property") and more fully described~i"n EXHIBIT A attached hereto and shown on a survey dated March i, 2007, and last revised June 15, 2007 prepared by Peconic Surveyors, P.C.; and B. Grantee is a municipal corporation and has the authority pursuant to Section 247 of the General Municipal Law and Article 49, Title 3 of the New York Environmental Conservation Law (the "ECL") to acquire conservation easements. C. The Property consists primarily of productive agricultural land. The Property contains 16.57 acres of prime soils, as deFlned by the U.S. Department of Agriculture Natural Resources Conservation Service. D. Article 14, Section 4 of the New York State Constitution states that "the policy of this state shall be to conserve and protect Its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products;" E. In Section 49-0301 of the ECL, the Legislature of the State of New York found and declared that "in order to Implement the state policy of conserving, preserving and protecting its environmental assets and natural and man-made resources, the preservation of open spaces, and the preservation, development and improvement of agricultural and forest lands..., is fundamental to the maintenance, enhancement and improvement of...balanced economic growth and the quality of life in all areas of the state;" F. The Property is located within Suffolk County's Agricultural District #i, created pursuant to Article 25AA of the New York State Agriculture and Markets Law. In Section 300, it states: "It is hereby found and declared that many of the agricultural lands in New York State are in jeopardy of being lost for any agricultural purposes. When nonagricultural development extends into farm areas, competition for limited resources results...It is therefore the declared policy of the state to conserve, protect and encourage the development and improvement of its agricultural land for production of food and other agricultural products...It is the purpose of this article to provide a locally-initiated mechanism for the protection and enhancement of New York State's agricultural land as a viable segment of the local and state economies and as an economic and environmental resource of major importance;" G. Article 25-AAA, Section 321 of the Agriculture and Markets Law states that "It is hereby found and declared that agricultural lands are irreplaceable state assets. In an effort to maintain the economic viability, and the environmental and landscape preservation values associated with agriculture..." the Commissioner is authorized to~administer programs to assist counties in developing agricultural and farmland protection plans and to assist both county and municipal governments in the implementation of such plans. The Commissioner gives priority to projects that will preserve viable agricultural land, are located in areas facing significant development pressure and serve as a buffer for a significant natural public resource containing important ecosystem or habitat characteristics; H. The property is located within the Town of Southold, which has adopted the Southold Town Farm and Farmland Protection Strategy, dated ]anuary, 2000. The Plan recommends that the Town continue its efforts to preserve land suitable for farming and ensure that farming remains an important part of the local economy. The Plan also recommends that the Town participate in partnership efforts with the Federal, State and County governments and related grant programs financial resources most effectively. fn order to use the Town's limited I. Grantor has received independent legal and financial advice regarding this Easement to the extent that Grantor has deemed necessary. Grantor freely signs this Easement in order to accomplish its conservation purposes. NOW, THEREFORE, in consideration of the foregoing, ONE MILLION- ONE-HUNDRED EIGHTEEN THOUSAND AND ONE HUNDRED NINETY TWO Dollars ($1,118,192.00) and the mutual covenants, terms, conditions and restrictions contained herein, the parties agree as follows: i. Grant of Conservation Easement Grantor hereby grants and conveys to Grantee, a Conservation Easement (the "Easement"), an immediately vested Interest in real property defined by Article 49, Title 3 of the ECL of the nature and character described herein, for the benefit of the general public, which Easement shall run with and bind the Property in perpetuity. Grantor will neither perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconststent with the covenants contained herein. Grantor authorizes Grantee to enforce these covenants in the manner described below. 2. Purpose It is the primary purpose of this Easement to: a) enable the Property to remain in agricultural or forestry use for current and future production of food and fiber, and livestock and livestock products, by protecting in perpetuity Its agricultural and forestry values, use and utility, including its prime, statewide important and unique agricultural soils; and b) prevent any use of the Property that would significantly impair or interfere with its long- term agricultural and forestry viability. It Is the secondary purpose of this Easement to conserve and protect the Property's open space resources, and their associated unique and special natural features to the extent that such protection does not conflict with the primary purpose of this Easement. 3. Implementation This Easement shall be implemented by limiting and restricting the development and use of the Property in accordance with its provisions. No use of the property shall occur and no permanent or temporary structures or other buildings or improvements shall hereafter be constructed, placed or maintained on the Property, except as specifically provided herein. The Property remains subject to all applicable local, state and federal laws and regulations. This Easement shall not unreasonably restrict or regulate farm operations in contravention of the purposes of Article 25-AA of the Agriculture and Markets Law. 4. Definitions As used In this Easement, the terms "Grantor" or "owner" include the original Grantor, its heirs, successors and assigns, all future owners of any legal or equitable interest in all or any portion of the Property, and any party entitled to the possession or use of ali or any part thereof; and the term "Grantee" includes the original Grantee(s) and its[their] successors and assigns. The term "Sound Agricultural Practices" is defined as those practices necessary for on-farm production, preparation and marketing of agricultural commodities, provided such practices are legal, necessary, do not cause bodily harm or property damage off the farm, and achieve the intended results in a reasonable and supportable way. If necessary, to determine if a practice is "sound," Grantee or Grantor may request the New York State Department of Agriculture and Markets to initiate a sound agricultural practice review pursuant to Section 308 of the New York State Agriculture and Markets Law, or any successor statute. The term "Farm Labor Housing" means structures used to house seasonal and/or full-time employees where such residences are provided by the farm landowner and/or operator, the worker is an essential employee of the farm landowner and/or operator employed in the operation of the farm and the farm worker is not a partner or owner of the farm operation. For Instance, a mobile or manufactured home used as the primary residence of a farm owner is not farm labor housing. 5. Reserved Rights Retained by Grantor Notwithstanding any provisions of this Easement to the contrary, Grantor reserves all customary rights and privileges of ownership, including the right of exclusive use, possession and enjoyment of the Property, the rights to sell, lease, and devise the Property, as well as any other rights consistent with the Purpose set forth in Section 2 and not specifically prohibited or limited by this Easement. Unless otherwise specified below, nothing in this Easement shall require Grantor to take any action to restore the condition of the Property after any Act of God. Nothing in this Easement relieves Grantor of any obligation with respect to the Property or restriction on the use of the Property imposed by law. 6. Access Nothing contained in this Easement shall give or grant to the public a right to enter upon or to use the Property or any portion thereof where no such right existed in the public immediately prior to the execution of this Easement. 7. Right to Use Property for Rural and Agricultural Uses Grantor has the right to produce crops, livestock and livestock products and conduct farm operations as defined under Section 30Z of the New York State Agriculture and Markets Law ("Agriculture and Markets Law"), or such successor law as is later promulgated, which Includes but is not limited to the right to establish, reestablish, maintain, and use cultivated fields, orchards, pastures and woodlands. Said farming practices shall be carried out in accordance with Sound Agricultural Practices as defined herein. In addition, Grantor has the right to distribute farm products, subject to the limitations set forth In this Easement, including Section 10 ("Construction of Buildings and Other Improvements"). 8. Right to Use the Property for Recreational Purposes Grantor retains the right to use the Property for otherwise lawful recreational uses, including, but not limited to, hunting, fishing, cross- country skiing and snowmobiling, subject to the limitations set forth in this Easement, including Section 10 ("Construction of Buildings and Other Improvements"). 9. Maintenance Should the property cease to be used for agricultural purposes for more than three (3) years, the agricultural fields containing prime, statewide important and unique soils will be mowed at least triennially or otherwise maintained in a condition which will prevent growth of woody vegetation that would intertere with future agricultural use or which might result in interterence with drainage systems, or in reversion of significant portions of the Property to regulated wetland status. Similarly, during prolonged periods of disuse for agricultural purposes, artificial and natural drainage systems must be maintained in a functional state by the Grantor. If Grantor does not comply with this provision, Grantee shall have the right, but not the obltgation, to mow such fields, at Grantee's sole expense, if it so chooses. 10. Construction of Buildings and Other Improvements Grantor may undertake construction, erection, installation, removal or placement of buildings, structures, or other Improvement to the Property only as provided in this Easement and set forth below. 10(a) Fences -- Existing fences may be repaired, removed and replaced, and new fences may be built on the Property for purposes of reasonable and customary management of livestock and wildlife and to prevent trespassing on the Property. 10(b) New Agricultural Structures and Improvements -Without permission of Grantee, Grantor may construct new buildings, structures and impervious improvements including asphalt and concrete roads and parking areas on up to 5% of the Property to be used primarily for purposes related to a "Farm Operation," as defined In New York State Agriculture and Markets Law § 301 or any successor statute and for such other agricultural purposes as (i) the production, storage or sale of farm products or by-products produced on-site, (11) the storage of equipment used for agricultural production, (iii) the keeping of livestock or other animals and (iv) farm labor housing. Such new buildings, structures and Impervious improvements shall not include those used for the processing and packaging of farm products. Such coverage limitations do not apply to permeable surfaces such as gravel roads and parking areas, structures that protect soil and water resources, such as manure storage areas, and structures and improvements lacking permanent foundations where the land underneath is not covered by impervious surfaces. Permission is required by Grantee for the construction of such buildings, structures and improvements that would cover up to an additional 5% of the Property. 10(c) New Farm Labor Housing - Without permission of Grantee, Grantor has the right to construct new dwellings or structures for Farm Labor Housing as defined in Paragraph 4, together with new agricultural structures and improvements permitted in Section 10(b) above, on up to 5% of the Property. The land on which these structures stand shall not be subdivided. 10(d) New Recreational Structures and Improvements -Any one or more new recreational improvements proposed for the Property that exceed an aggregate footprint of 400 square feet may be located only with the advance written permission of Grantee. Under no circumstances shall athletic fields, golf courses or ranges, commercial airstrips, commercial helicopter pads or any other similar recreational Improvements that interfere with the Purpose of this Easement, significantly disturb the farm soils, or otherwise adversely affect agricultural and forestry uses on a continuing basis be allowed on the Property. 10(e) Utility Services and Septic Systems -- Wires, lines, pipes, cables or other facilities providing electrical, gas, water, sewer, communications, or other utility services to the improvements permitted in this Easement may be installed, maintained, repaired, removed, relocated and replaced, and Grantor may grant easements over and under the Property for such purposes. Septic or other underground sanitary systems serving the improvements permitted herein may be Installed, maintained, repaired or improved. Services are limited to structures permitted on the Property pursuant to Section 18 ("Permission"). 10(f) Ancillary Improvements -Other improvements, including, but not limited to facilities for the generation and transmission of electrical power for agricultural production uses on the Property, such as windmills and detached solar arrays may be built only with the permission of Grantee, pursuant to Section 18 ("Permission"). 11. Maintenance and Improvement of Water Sources Grantor maintains the right to use, maintain, establish, construct, and improve water sources, water courses and water bodies within the Properly for the uses permitted by this Easement, provided that Grantor does not significantly impair or disturb the natural course of the surface water drainage or runoff flowing over the Property. Grantor may alter the natural flow of water over the Property in order to improve drainage of agricultural soils, reduce sail erosion, provide irrigation for the Property or improve the agricultural or forest management potential of the Property, provided such alteration is consistent with Sound Agricultural Practices, the Purpose of this Easement and is carried out in accordance with applicable State and federal laws and regulations. 12. Water Rights Grantor retains and reserves the right to use any appurtenant water rights sufficient to maintain the agricultural productivity of the Property. Grantor shall not transfer, encumber, lease, sell or otherwise sever such water rights from title to the Property itself. 13. Subdivision The Property may not be further 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, except as provided herein. "Subdivision" shall be limited to the division of the portion of the Property from which the development rights are acquired into no more than two Farming parcels, each of which must be at least ten (10) acres in size. Notwithstanding this provision, the underlying fee interest may be divided by conveyance of parts thereof to heirs or next of kin by will or operation of law. 14. Forest Management Without prior written permission from Grantee, Grantor may clear forested areas for conversion to farmland, may harvest wood for on-farm use including heating or construction of buildings and improvements, and may remove trees that are fallen, dead, diseased or dangerous, so long as It is consistent with Sound Agricultural Practices. Without prior written permission from Grantee, Grantor may commercially harvest timber and other wood products and construct, maintain, remove, and repair unpaved access roads and "staging areas" (those areas where logs are temporarily stored for transport) necessary for such activities, in accordance with generally-accepted forest best management practices (as outlined in a forest management and harvest plan) that shall not result in significant degradation of soil and water resources. Such commercial timber cutting shall be carried out only in accordance with a forest management plan and harvest plan prepared by a forester who is certified by the Society of American Foresters or such successor organization as is later created, or a Cooperating Consulting Forester with the New York State Department of Environmental Conservation. In order to facilitate the monitoring and stewardship of this Conservation Easement, to ensure continuing communication between parties, Grantor shall give Grantee, its successors or assigns, written notice thereof not less than forty-flue (45) days prior to the anticipated commencement of any commercial timber harvest. Such written notice shall include submission of the current forest management plan and harvest plan. 15. Excavation and Removal of Materials; Mining The excavating of the Property shall be generally prohibited, 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, and any such excepted excavation activity may proceed without the prior written consent of Grantee. Mineral exploitation, and extraction by any method, surtace 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 farm operations, erosion control and soil management, without the prior written consent of Grantee. 16. Road Construction Grantor may construct roads for barnyards, farm roads, or other improvements necessary to provide access to, and parking for, permitted buildings or improvements, or to conduct other activities permitted by this Easement, provided to the greatest extent practicable, impact to the prime, statewide important and unique soils is minimized. No other portion of the Property shall be paved or otherwise covered with concrete, asphalt, or any other impervious paving material. 17. Dumping and Trash The dumping, land filling, burial, application, Injection, or accumulation of any kind of garbage, trash or debris on the Property is prohibited, other than agriculturally-related waste or biodegradable material in accordance with Sound Agricultural Practices and any applicable State or federal law or regulation. However, this shall not prevent the storage of agricultural products and byproducts, the storage of old farm equipment used for parts, temporary storage of trash or household waste in receptacles for periodic off-site disposal, and composting or re-use of biodegradable materials as permitted in Section 7 ("Right to Use Property for Agricultural Uses"), generated off the Property for use on the Property or commercial use so long as they are used and stored in accordance with Sound Agricultural Practices. Notwithstanding the foregoing, the storage and treatment of sewage associated with buildings permitted on the Property, is permitted by this Easement. 18. Permission of Grantee Where Grantor is required to obtain Grantee's permission for a proposed action hereunder, said permission shall be requested in writing. Grantee shall grant permission unless It determines that such action would 1) violate the Purpose of this Easement, 2) Impair the potential for long-term agricultural viability associated with the Property, or 3) unnecessarily impede the use of Property's prime, statewide important or unique soils. Grantee shall respond in writing within forty-five (45) days of receipt of the Grantor's written request, which request shall Include building plans identifying the use, footprint and total square footage of any proposed structures, and related survey information, if available. Grantee shall not be liable for damages for any failure to grant permission to Grantor. 19. Ongoing Responsibilities of Grantor and Grantee Other than as specified herein, this Easement is not intended to impose any legal or other responsibility on Grantee, or in any way to affect any obligations of Grantor as owner of the Properly, including, but not limited to, the following: 19(a) Taxes -- Grantor shall be solely responsible for payment of all taxes and assessments levied against the Property. If the Grantor becomes delinquent in payment of taxes the Grantee, at its option, shall have the right to take such actions as may be necessary to protect the Grantee's interest in the Property and to assure the continued enforceability of this Instrument and to recover all of its costs including reasonable attorney's fees. If, as a result of such actions, Grantee ever pays any taxes or assessments on Grantors Interest in the Property, Grantor will promptly reimburse Grantee for the same. 19(b) Upkeep and Maintenance -- Grantor shall be solely responsible for the upkeep and maintenance of the Property, to the extent required by law and this Easement. Grantee shall have no obligation for the upkeep or maintenance of the Property. 19(c) Liability and Indemnification -Grantor agrees to indemnify and hold Grantee and the State of New York, Department of Agriculture and Markets harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys fees arising from any personal injury, accidents, 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. 20. Extinguishment of Development Rights Except as otherwise reserved to the Grantor in this Easement, all development rights appurtenant to the Property are hereby released, terminated and extinguished, and may not be used on or transferred to any portion of the Property as it now or hereafter may be bounded or described, or to any other property adjacent or otherwise, or used for the purpose of calculating permissible lot yield of the Property or any other property. 21. Baseline Documentation By its execution of this Easement, Grantee acknowledges that the present uses of the Property are perm(tted by this Easement. In order to evidence the present condition of the Property (including both natural and man-made features) so as to facilitate future monitoring and enforcement of this Easement, a Baseline Documentation Report, including maps, describing such condition at the date hereof, has been prepared and a copy will be kept on file with Grantee. The Report may be used by Grantee to establish that a change in the use or character of the Property has occurred, but its existence shall not preclude the use by Grantee of other evidence to establish the condition of the Property as of the date of this Easement. 22. Right of Inspection Grantee shall have the right to enter upon the Property upon forty-eight (48) hours advance notice to Grantor for the purpose of Inspecting for compliance with the terms of this Easement. Such inspection shall be conducted between the hours of 9 a.m. and 7 p.m. on a weekday that is not a legal holiday recognized by the State of New York or at a date and time agreeable to the Grantee and Grantor. In the instance of a violation or suspected violation of the terms of this Easement which has caused or threatens to cause irreparable harm to any of the agricultural or other resources this Easement is designed to protect, no such advance notice is required. Representatives of the New York State Department of Agriculture and Markets shall have the same right of inspection. 23. Enforcement If Grantee determines that a violation of this Easement has occurred, Grantee shall so notify Grantor, giving Grantor thirty (30) days to cure the violation. Notwithstanding the foregoing, where Grantee In Grantee's sole discretion determines that an ongoing or threatened violation could irreversibly diminish or impair the Purpose of this Easement, Grantee may bring an action to enjoin the violation, ex parte if necessary, through temporary or permanent injunction. In addition to injunctive relief, Grantee shall be entitled to seek the following remedies in the event of a violation: (a) money damages, including damages for the loss of the resources protected under the Purpose of this Easement; and (b) restoration of the Property to its condition existing prior to such violation. Said remedies shall be cumulative and shall be In addition to all remedies now or hereafter existing at law or in equity. In any case where a court finds that a violation has occurred, Grantor shall reimburse Grantee for all its expenses Incurred in stopping and correcting the violation, including, but not limited to, reasonable attorneys' fees. The failure of Grantee to discover a violation or to take Immediate legal action shall not bar Grantee from doing so at a later time. In any case where a court finds no violation has occurred, each party shall bear its own costs. 24. Transfer of Easement Grantee shall have the right to transfer this Easement to any private, non-governmental organization or public agency that, at the time of transfer (s a "qualified organization" under Section 170(h) of the Internal Revenue Code, provided that transferee expressly agrees to assume the responsibility imposed on Grantee by this Easement. If Grantee ever ceases to exist or qualify under Section 170(h) of the Internal Revenue Code, or applicable state law, a court of competent jurisdiction shall transfer this Easement to another qualified organization having similar purposes that agrees to assume the responsibilities imposed by this Easement. Grantor and the New York State Department of Agriculture and Markets will be notified in writing in advance of such transfer. 25. Transfer of Property Any subsequent conveyance, including, without limitation, transfer, lease or mortgage of the Property, shall be subject to this Easement, and any deed or other instrument evidencing or effecting such conveyance shah contain language substantially as follows: "This {conveyance, lease, mortgage, easement, etc.} is subject to a Conservation Easement which runs with the land and which was granted to the Town of Southold by instrument dated ,and recorded in the office of the Clerk of Suffolk County at Liber at Page ." Grantor shall notify Grantee in writing at least thirty (30) days before conveying the Property, or any part thereof or interest therein, to any third party. The failure~to notify Grantee or to include said language in any deed or instrument shall not, however, affect the validity or applicability of this Easement to the Property or limit Its enforceability in any way. 26. Amendment of Easement This Easement may be amended only with the written consent of Grantee and current Grantor and with the approval of the New York State Department of Agriculture and Markets. Any such amendment shall be consistent with the Purpose of this Easement, shall comply with the Conservation Law or any regulations promulgated thereunder, and shall not unreasonably restrict or regulate farm operations in contravention of the purposes of Article 25-AA of the Agriculture and Markets Law. Any such amendment shall be duly recorded. 27. Alienation No property rights acquired by Grantee hereunder shall be alienated except pursuant to the provisions of Chapter 70, of the Town Code of the Town of Southold, or any successor chapter, 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 this property rights or interests which were acquired by the Town prior to any such amendment. 28. Extinguishment of Easement At the mutual request of Grantor, Grantee and New York State Department of Agriculture and Markets, 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 !n Section 2 ("Purpose") herein, 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 make tmpossible the continued use of the Property for Purpose of this Easement as described in Section 2 ("Purpose") herein, the restrictions may be extinguished by judicial proceeding. In either case, upon any subsequent sale, exchange or Involuntary conversion by the Grantor, Grantee shall be entitled to a portion of the proceeds from any subsequent sale or other disposition of the Property, or title insurance proceeds, in accordance with Section 28 ("Proceeds") herein. 29. Proceeds The grant of this Easement gives rise to a property right, immediately vested in Grantee, which, for purposes of calculating proceeds from a sale or other disposition of the Property as contemplated under Section 27 ("Extinguishment of Easement"j, 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 appraised value of this Easement, calculated as of the date of an appraisal, by the unencumbered value of the Property, calculated as of the date of an appraisal obtained by Grantee prior to execution of this easement. The Proportionate Share is 74.5%. The Proportionate Share shall remain constant (subject to reasonable adjustment to the extent permissible under Section 170(h) of the Intemai Revenue Code for any improvements which may hereafter be made on the Property). With regard to the portion of such Proportionate Share equal to the percentage of the purchase price of this Easement that was paid using State Farmland Protection Program Grant funds, Grantee agrees to use such portion in a manner consistent with the Purpose of this Easement. Prior to such re- use, Grantee must notify the New York State Department of Agriculture and Markets. io 30. Interpretation This Easement shall be interpreted under the laws of the State of New York, or federal law, as appropriate. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed to effect the Purpose of this Easement. If any provision in this Easement is found to be ambiguous, an interpretation consistent with the Purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. 31. Successors Every provision of this Easement that applies to Grantor or Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and other successors in interest, and shall continue as a servitude running in perpetuity with the Property. 32. Severability Invalidity of any of the covenants, terms or conditions of this Easement, or any part thereof, by court order or judgment shall in no way affect the validity of any of the other provisions hereof which shall remain in full force and effect. 33. Notices Any notice required or desired to be given under this Easement shall be in writing and shall be sent by (i) personal delivery, (ii) via registered or certified mail, return receipt requested, or (Ili) via Federal Express or other private courier of national reputation providing written evidence of delivery. Notice shall be deemed given upon receipt in the case of personal delivery, and upon delivery by the U.S. Postal Service or private courier. All notices shall be properly addressed as follows: (a) if to Grantee, at the address set forth above; (b) if to Grantor, at the address set forth above; (c) if to any subsequent owner, at the address of the Property;(d) If to New York State Department of Agriculture and Markets, lOB Airline Drive, Albany, New York 12235. Any party can change the address to which notices are to be sent to him, her or it by duly giving notice pursuant to this Section. 34. Title The Grantor covenants and represents that the Grantor is the sole owner and is seized of the Property in fee simple and has good right to grant and convey the aforesaid Easement; that the Property is free and clear of any and all mortgages not subordinated to this Easement, and that the Grantee shall have the use of and enjoyment of the benefits derived from and existing out of the aforesaid Easement. 35. Subsequent Liens on Property No provisions of this Easement should be construed as impairing the ability of Grantor to use this Property, or a portion thereof encompassing entire separately deeded parcels, as collateral for a subsequent borrowing. 36. Subsequent Encumbrances The grant of any easements or use restrictions is prohibited, except with the permission of Grantee. 37. Grantor's Environmental Warranty Nothing in this Easement shall be construed as giving rise to any right or ability in Grantee, or the New York State Department of Agriculture and Markets to exercise physical or management control over the day-to-day operations of the Property, or any of Grantor's activities on the Property, or otherwise to become an operator or an arranger with respect to the Property within the meanings of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") or any corresponding state and local statute or ordinance. Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property, as such substances and wastes are defined by applicable law, and hereby promises to Indemnify Grantee, and New York State Department of Agriculture and Markets against, and hold Grantee and New York State Department of Agriculture and Markets harmless from, any and all loss, cost, claim (without regard to its merit), liability or expense (Including reasonable attorneys' fees) arising from or with respect to any release of hazardous waste or violation of environmental laws. If at any time after the effective date of this Easement there occurs a release in, on, or about the property of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, Grantor agrees to take all steps that may be required under federal, state, or local law necessary to assure its containment and remediation, including any cleanup. 38. Duration of Easement Except as expressly otherwise provided herein, this Easement shall be of perpetual duration, and no merger of title, estate or interest shall be deemed effected by any previous, contemporaneous, or subsequent deed, grant, or assignment of an interest or estate in the Property, or any portion thereof, to Grantee, it being the express intent of the parties that this Easement not be extinguished by, or merged into, any other interest or estate in the Property now or hereafter held by Grantee. 39. Entire Agreement This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings and agreements relating to the Easement, all of which are merged herein. No alteration or variation of this Instrument shall be valid or binding unless contained in an amendment that complies with Section 25 ("Amendment"). 40. Waiver No waiver by Grantee of any default, or breach hereunder, whether is . .. intentional or not, shall be deemed to extend to any prior or subsequent default or breach hereunder or affect In any way any rights arising by virtue of any prior or subsequent such occurrence. No waiver shall be binding unless executed in writing by Grantee. 41. Sanding Effect The provisions of this Easement shall run with the Property in perpetuity and shall bind and be enforceable against the Grantor and all future owners and any party entitled to possess or use the Property or any portion thereof while such party is the owner or entitled to possession or use thereof. Notwithstanding the foregoing, upon any transfer of title, the transferor shall, .with respect to the Property transferred cease being a Grantor or owner with respect to such Property for purposes of this Easement and shall, with respect to the Property transferred, have no further responsibility, rights or liability hereunder for acts done or conditions arising thereafter on or with respect to such Property, but the transferor shall remain liable for earlier acts and conditions done or occurring during the period of his or her ownership or conduct. 42. Captions The captions in this Instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. IN WITNESS WHEREOF, Grantor and Grantee, intending to be Legally bound hereby, have hereunto set their hands on the date Flrst above written. Grantor: N ~ ] MANAGEMENT C LLC sy:~ Grantee: TO OF SOUTHOLD By: G4~ SCOTT A. RUSSELL, SUPERVISOR Scale ojlverv Yurk ~~ On the day of in the year 2007 before mc, the undersigned, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to the individual (s) whose name (s) is (arc) subscribed to the within instnunent and acknowledged to me that he/she/they exrcuted 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 u on behalf of which the individual(s) acted, executed the instru crtt. ~~~ -- ~r ~ lature/office of individual inking acknowledgement PATpICIA 4 FALCON I3 Notary Public, Stat9 Q1 New York No. 01 FA4850148 OualMled In Sutlolk Cou Commission Expires April 4, o~/~ . . Slulr ujNew Yurk Cuuxly of Surma-e~K/~ ,~s: Un the ,p~~day of .~u,vE _ in the year 2007 before me; the undersigned, personally appeared SCO7'i' A. RliSSELL, personally known to me or pmved to me on the basis of satisfactory evidence to be the individual (s) whose name (s) is (arc) subscribed to the within instrument and acknowledged to me that he/shehhey ex~~;uted the same in his/her/their capacity (ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the perscm upon hehull'ot'which the individual(s) actixi, cx~~;ut~d the instrument. ~¢~u~~ ~. ~0~ Signature/office ul' individual taking acknowledgement PATAICIA L FALLON Notary Public, Stnt9 M Naw York No. O1FA4950145 Qualified In Sulfclk Counttyy Commission Expires April 24, aQ/ Id .; Stewart Title Insurance Company Title No: ST-S-8652 Schedule A Description Acvelopmont Rights Easement Parcel) - AMENAEU 5/16/07 ALL that ccrisin plot, piece or parcel of land with the buildings and improvements thereon erected, situate, lying and being at Mattituck, in the Town of Southold, County of Suffolk and State ofNew York, being bounded and described as follows: BEGINNING at a point on the Southeasterly silo of Westphalia Road (a/k/a Westphalia Avcnuc), distance 239.76 feet Southwesterly from the corner formed by the intersection of the Southeasterly side of Westphalia Road wish the Southwesterly side of Iiennrtt's fond fane; RUNNING TIIENCF, South 29 dcgrccs 32 minutes 00 seconds Fast distance 241.00 feet to a point; THENCE North 67 degrees 35 minutes 20 seconds Bast a distance of S5.9U feet to a point and "Map of IIcnnett's Pond'', filed in the Office of the Suffolk County Clerk as Map No. 5483; THENCE South 29 degrees 32 minuses 00 seconds East along "Map of 13cnnett's Pond" a distance of 7G2.22 feet to a point and land of the County of Suffolk; TIIENCF South 74 dcgrccs 52 minutes 10 seconds Wrst a distance ol'429.18 feet to a point; THENCE still along oCCounty of Suffolk, South G3 degrees 22 minutes 10 seconds West a distance of 414.50 feet to a point and land of no~v or formerly George; THENCE Nonh 25 dcgrccs 3G minutes 20 seconds West along land now or formerly of George and lands of others a distance ol'963.85 feet to a point; THF,NCE North 17 degrees 59 minutes 50 seconds West a distance of 56.48 feet to u point on the Southeasterly side of Westphalia Road; THENCE along the Southeasterly side of Westphalia Road the following two courses and distances: North 75 degrees 58 minutes 40 seconds East a distance of 3G1.36 feet to a point; 2. North G6 degrees 21 minutes 50 sewnds East a distance of 78.18 feet to a point and the reserved arcs; THENCE South 29 degrees 32 minutes 00 seconds Fast a distance of 185.85 feet to u point; THENCE North G4 degrees 03 minutes 10 seconds East a distance ot'241.3R feet to a point; THENCE North 29 degrees 32 minutes 00 seconds West a distance of 174.85 feet to a point and the Southeasterly side of Westphalia Road; THENCE North 67 degrees 35 minutes 20 seconds East a distance of 30.23 feet to the point or place of BEGINNING. 7'OCiETHER with all right, title and interest of the party of the first part, in and to the land lying in tltc street in front of and adjoining said premises. .~ J . . - 1 2 Number of pages RECCR^~ 1 TORRENS ~ 1:'].3:21 iiN 2G07 iul I1 Judith N. Pascale Serial # ~ CLEIik OF SUFFDIJi CdUI!TY Certificate # t. D00012ai3 F 074 Prior Ctf. # D;S 06-39.44 Deed .Mortgage Instrument Decd /Mortgage Tux Stamp Rernrding /Filing Stamps 3 FEES . Page /Filing Fcc Mortgage Amt. _ 1. Basic Tax Handling 5. ~ _ 2. Additional Tax _ Tp_g84 Sub Total _ Spec. / Assit. Notation or EA-5217 (County) Sub Total Spec. /Add. _ TOT. MTCt TAX _ EA-5217 (State) ~ ~ GJ>YiI Dual Town _ Dual County _ R I?T S A ~'~ Held for Appointment . . . . Comm. of Ed. ~ 5. ~ ~, ~ Transfer Tax Mansion Tax _ • ~ Affidavit ~ "~ ~'~' / / G "P ~ The property covered by this motgage is or will be improved by a one or two Certi_ tied Cod ~ U J ~ family dwelling only. `-/ YF.S or NO . Rcg. Copy Sub Total ., If NO, sec appropriate tox clause on Other T Grand Towl ~ t page # of this instrument. 4 District Section //30o Block.l3.oo L ~ ~5 Communi Preservation Fund Real 07019549 1000 11300 1300 001004 Consideration Amount S ~ Property /---~ T S CPF Tax Du 5~ Tax Service ~ R Agency ~ p-0 Improved Verification ~ V L d 6 Satisfactior:/Dischargcs/Rclease List Properly Ownerx Mailing Address t an _ RECORD & RETURN TO: TD ~F[/SS/1 SI.[p TD • T(t1N oc $OtrnWcd -,(J7N/ tfliP.~rexrAnou 53095 Ricrrs oZ5', P. 0• Bo x //79 TD seur-Ma.e, ~Y /i97~-o9s9 7 Title Company lnfotmation Co. Name SrsW.4 r Titlc# _S_ 8 ~ Suffolk County Recording & Endorsement Page This page fortes part of the attached EF.D OF taNS ~/A-io.J .~ r~na~rr made by: (SPECIFY TYPE OF INSTRUMENT) A/ iT A7B.t/nOEm~vr r?a, ~ ~(_~/! The premisis herein is situated in SUFFOLK COUNTY, NEW YORK. . TO In the Township of Sorr7s~e a.e TUU/.c/ dL' .`'d uTNet.A In the VILLAGE r or HAMLET of • /1~A7TPF/GY 70XE.S b THROUGH 8 MUST RE TYPED OR PRINTED [N BLACK INK ONLY PRIOR TO RECORDING OR F1LiNr~ SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE ' Type of Iastrumeat: DEEDS/DDD Recordeds 07/11/2007 ~~ Number of Pages: 17 At: 11:OBs21 AM ~ Receipt Number 07-0064095 'i TRANSFER TAX NUI+IDER: 06-39244 LISER: D00012513 PAGE: 074 District: Sections Hlock: Lots ~ 1000 113.00 13.00 001.004 EXAMINED AND CHARGED AS FOLLON3 Deed Amount: $1,118,192.00 Received the Following Feea 8or Above Instrument Exempt 8xempt Page/Filing $51.00 NO Handling $5.00 NO COE $5.00 NO NYS SRCHG $15.00 NO 8A-CTY $5.00 NO 8A-STATE $75.00 NO TP-584 $5.00 NO Cert.Copias $11.05 NO RPT $30.00 NO SCTM $0.00 NO Transfer tax $0.00 NO Comm.Pres $0.00 NO Feea Paid $202.05 TRANSFER TAX NUMHERs 06-39244 THIS PAGB IS A PART OF THE INSTRUMENT THIS 28 NOT A HILL Judith A. Pascale Couaty Clerk, Suffolk Couaty PLEASE TYPE OR PRESS FIRMLY WHEN WP,ITING ON FORM INSTRUCTIONS; httpJ/ www.arps.state.ny.us or PHONE (518) 473-7222 FOR COUNTY USE ONLY ~ / Cf. SINIS Coda ~"(~ c.7 (/ ,~, ~ REAL PROPERTY TRANSFER REPORT / ~. STATE OF NEW YORK C2. Daa p0ed RemrdOd ~• O 6TATE BOARD OF REAL PROPERTY SERVICES [ °' '" "r ~~ ~ RP - 5217 Q. Book ~.. CI. PSaO • ~+ a ~ -d arun K».tw7 f. PrepertYl 4735 I Westphalia Road I Lowtlon m0n xueeeeR sran I Southold (Mattituck} ~ I I -S!~I vauee ur'Z&n 7. Buyer I TOWN OF SOUTHOLD I I Nema iii wr ran rr"r[ r xRU t r I cast w~wt I 7. Tw krdkau whw Itmtn T" SLk aro to W tent SSIkrS B atlrr then brryer eddran ut bo5om d lorml I use+.. I rnsr xAw Aa6w. I I I I I it rRi xuurR~RO rrru ww acre rowx •tT~~' e. Indkab th0 number d Awwwnent ~ /~ ~ ~I ^ IOnh 5 Pan d R PerwB fireek en ehry+PDM Roll pawb Vawlawad on tM deed L~~ r.lJ 7 0l Pueou OR Pan o(a Poml ~ Punrin5 Board with SubdNUion Autleoriy ERieu ^ 6. Dasd ~ Subdivirion Appror0l ww RaquirM w Tnmkl ^ Property I raoNr rrrr I x I orsnr I OR I / s !o . O. S I aC. Parcat Approved roc Sybdlriripn wdh L4D Prwkled ^ 660 e.sww I N 6 J Management Co.r LLC ~ I ~~ ll1ir 11Ie1E/COxrANr N IN41a I - ~ I kf I CeewMr n"r rMerk 7. Chwk flu bOR bNow whkh moat amuntary dun5ew tM rrw a the Prppaly at Mee tlme d w b: Out! tlrs harp holew s thry aPPIY & Owrwehip Type h Cadominiunr ^ A One FamI1Y gweemlal E Aprlcuhurd 1 Community Ssnim .. NRw ConaruCion m Vacant Lend ^ B 7 a 3 Fa^WY ReaidanW I 1' CommereW J tnduedal f00. Reperry l.ecawd whhb an ASneWlYwl GRrra ^ C ROrWanial vaunt tend G At+wt^wnt K PutrGe S"risa 105. BuYa rewNed • dbdaun nab krditatkp ^ D Non-Ikaidar0ul Vsanl land 11 EnunainmW / Amuaam0m 1. Faan Mm the pnpsty k b n ASrkukwel Okbiet SALE INFORMATION 7S 17rsat ores or mon d thew eonditloro w app5eabu to irwhr: ? ~ ~ ~ ~ 11. Ws Lbmrwe Dets I I .7 / / A sak Between Aoudwe or Fomwr Aeladvw ~i~ A Sao Between wuua ComDemw or Patnon ht Bueircae ~ ~ O ~ C Ow of tlw Buyan is alw a Salur 12. Da" d sw / Tnn.w I / / I U Buy" or sa5sr b Gowunment Aponry « LondaB In"Ilulion Yd1a DaY YaY E peel Type rrm Wmranry ar BuSein and SW ISPOdry Italow) Bab d FratliorW or lase flan Fw kdsraat I6peafy iJdawl 1 1 1 8 1 9 2 (' SrOnrficem Chenpo in Properly Botwoen Tnuhls Staw end Sale Ost 17. FuR Se4 Mw L___~ ' 0 0 I I I Sets d Budnw u IrcJudod In SW Prke ~ ~ s IFUB Sea Rke b Ne nut amoum paid for the PrtWatY indudin5 PenorW DroWrIY• 1 Ocher Unrausl Faxon Attrrdb5 Sek Rim ISpodry Bebuvl iNe pgRrrart mey a In tho loan el eats, aher property a peeW, a the e"umgbn of J Nom modpa5w or aMr ebli5otbm.l Pkua routs ro Ne rworwt eWNrla dolLrr enwwu. ~1 r G,tAArT OC CdA/SERYATIeeI .EAft<7»e7µ.- 7e. 4rdiwta tM wb0 d parwnY I ~ ~ ~ a . a ~ 1~ I prap0rty krdrd0d N tlr0 0W ^ ~ 1R rwr a Awwemad Res Iron ~G 17. reel Aawswd V0h" Ia a5 peneu in trerwlal ( / . / S` . U . D I whkh kdamrtlen takdr~r /)r) JJ ~ ~ 7 7L ProPOtY Ckw l~f~-LJ 15. whoa Diebitx N.ns I /1~/77'T/ 7'E(C/! /<~ifTtJ/OGll6 I 20. Tw k4p WentlAalal /Roy Wadtlialy IS men then tar, stndr aleeet wdlfi eddNarul irladd0Aal1 }000-113.00- 013.00- OJ.OOZ I I I I I I CERTIFlCATION 1 RerfY>,' that edl d thr kermr d Idurrrmliotr wk+ed an thin form urv Irue acrd mrntt Ito Ilre brAl d my Iaoxkdlte trod belidl eod 1 wrderstepd shot the rmkirr5 d arty xYllld fuLr akdarreru d mderi0l fsA Irerain x51 xdrjeq me ur the tNrnbkma of tlw trtrol Ww ryWl•e b thr mekke5 tad AIbrS d fekre IeNttrreeeLe TOWN OF SOUTHO BUrER auvER•s ATTOANEr (tombrink ~ Lisa Hy:.Yw$I.V~1~$ A. RUSSELL 1efTNgw rrwrruNe 530095 ~ Hain Road, P.O. Box 117 (631) ~ 287-3939 seen NJweR sneer YRNFUVreR tore RRUtdx nwngNe ranwR Southold I NY I 11971 f:lir eR TOWN erar[ er Cpre N b J MANAGEMENT.T LLC NL:W YORK STATE COPY