HomeMy WebLinkAboutL 12375 P 384
1/28/05
GRANT OF DEVELOPMENT RIGHTS EASEMENT
'" THIS DEED OF DEVELOPMENT RIGHTS EASEMENT, is made on the if day of
~ 2005 at Southold, New York. The parties are DORSET FARMS, INC., P.O. BOX
28,PECONIC, NEW YORK 11958 (herein called "Grantor"), and the TOWN OF
SOUTHOLD, a municipal corporation, having its principal office at 53095 Main Road,
P.O. Box 1179, Southold, New York (herein call "Grantee").
INTRODUCTION
WHEREAS, Grantor is the owner in fee simple of certain real property located at
4100 Oregon Road, Mattituck in the Town of Southold, Suffolk County, New York, part
of SCTM# 1000-100-4-8, 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 July 8, 2004 and last revised January 14, 2005 prepared by John C. Ehlers.
WHEREAS, the Property is located in the AC Zoning District of the Town of
Southold 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 Southold, Section 100-30. The Property is
designated as part of Suffolk County Tax Map Parcel Number 1000-100-4-8; and
WHEREAS, the Property contains SOils30 acres of soil classified as Class I and
Class II worthy of conservation as identified by the United States Department of
Agriculture Natural Resources Conservation 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 Department of Agriculture Natural Resources Conservation
Service (hereinafter the "United States" or "NRCS") has provided $ , 0 the
Grantee and for the acquisition of this Easement, entitling the United States to the ~
rights identified herein. 41 (;10, 53~, '0 ~/Jt.//rb
WHEREAS, the Property is part of the New York State Agricultural District #1,
and the Grantor wishes to continue using the Property in an agricultural capacity; and
WHEREAS, the Property is currently in agricultural use as a vineyard; 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 Southold, and Section 272-a of the Town Law to protect environmentally sensitive
areas, preserve prime agricultural soils, to protect the scenic, open space character of
the Town and to protect the Town's agricultural economy; and
WHEREAS, the Property in its present 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 beneficial and has
requested Grantor, for itself and its successors and assigns, to grant a Development
Rights Easement to Grantee in order to restrict the further development of the Property
while permitting compatible uses thereof;
NOW THEREFORE, in consideration of ONE MILLION-TWENlY-ONE THOUSAND-
SEVENlY-SEVEN DOLLARS AND EIGHlY CENTS ($1,021,077.80) 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 hereinafter set
forth with respect to the Property unto the Grantee, its successors and assigns forever,
reserving, however, for the direct use and benefit of the Grantor, its legal
representatives, successors and assigns, the fee 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 Grantor's Ownershio
Grantor warrants to the Grantee that Grantor is the owner of the Property described in
Schedule A, free of any mortgages or liens except as set forth in Land America
Commonwealth Title Report # RH04301552 and possesses the right to grant this
easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a municipal
corporation organized and existing under the laws of the State of New York State and is
authorized under Section 64 of the New York State Town Law and Section 247 of the
New York General Municipal Law to acquire fee title or lesser interests in land, including
development rights, easements, covenants, and other contractual rights which may be
necessary or desirable for the preservation and retention of open spaces and natural or
scenic resources.
0.03 Puroose
The parties recognize the agricultural values of the Property which foster
environmental, natural and scenic benefits 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 agricultural values, including its prime, statewide important and
unique agricultural soils, by preventing the use or development of the Property for any
purpose or in any manner contrary to the provisions hereof, in furtherance of federal,
New York State and local conservation policies.
0.04 Governmental Recoanition
New York State has recognized the importance of private efforts to preserve
rural land in a scenic, natural, and open condition through conservation restrictions by
enactment of Environmental Conservation Law, Article 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.
0.05 Documentation
Grantee acknowledges by acceptance of this Development Rights Easement that
present uses of the Property are compatible with the purposes of this Easement.
Grantee makes this determination based on a survey dated July 8, 2004 and last
revised January 14, 2005 prepared by John C. Ehlers and an Environmental Site
Assessment dated August 20, 2004, prepared by Nelson, Pope & Voorhis, LLC.
0.06 Recitation
In consideration of the previously recited facts, mutual promises, undertakings,
and forbearances contained in this Development Rights Easement, the parties agree
upon its provisions, intending to be bound by it.
ARTICLE ONE
THE EASEMENT
1.01 Tvpe
This instrument conveys a Development Rights Easement (herein called the
"Easement"). This Easement shall consist of the limitations, agreements, covenants,
use restrictions, rights, terms, and conditions recited herein. Reference to this
"Easement" or its "provisions" shall include any and all of those limitations, covenants,
use restrictions, rights, terms and conditions.
1.02 Definition
"Development Rights" shall mean the permanent legal interest and right to
prohibit or restrict the use of the Property for use other than the agricultural
production as that term is presently referenced in Section 247 of the New York General
Municipal Law and/or defined in Chapter 25 of the Town Code of the Town of Southold
and any additional uses permitted by amendment of such Law or Code.
1.03 Duration
This Easement shall be a burden upon and run with the Property in perpetuity.
1. 04 Effect
This Easement shall run with the Property as an incorporeal interest in the
Property, and shall extend to and be binding upon Grantor, Grantor's agents, tenants,
occupants, heirs, personal representatives, successors and assigns, and all other
individuals and entities. 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, successors,
and assigns, and the word "Grantee" when used herein shall include all of those
persons or entities.
ARTICLE TWO
SALE
GRANTOR, for good and valuable consideration, hereby grants, releases, and
conveys to Grantee this Easement, in perpetuity, together with all rights to enforce it.
Grantee hereby accepts this Easement in perpetuity, and undertakes to enforce it
against Grantor.
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts, uses and practices
shall be prohibited forever upon or within the Property:
3.01 Structures
No structures may be erected or constructed on the Property except as 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 necessary to
implement NRCS approved conservation practices, or fencing used in connection with
bonafide 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: Mining
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 activities, without the prior written
consent of Grantee.
3.03 Subdivision
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
into two or more parcels, in whole or in part. 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. The United States Secretary of Agriculture shall be
notified prior to such division or conveyance.
3.04 Dumoing
The dumping or accumulation 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 fertilization, composting and crop
removal.
3.05 Sions
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 centerline of
roads or driveways, and may be used solely to service the permitted structures on the
property. Said utilities may service an adjacent property if the adjacent property is
owned by Grantor and is subject to a Development Rights Easement and said Easement
permits utilities.
3.07 Prohibited Uses
The use of the Property for any permanent 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 247 of the General Municipal Law and
lor defined in Chapter 25 of the Town Code, shall not be considered a commercial use.
Under no circumstances shall athletic fields, golf courses or ranges, commercial airstrips
and helicopter pads, motorcross biking, or any other improvements or activity
inconsistent with current or future agricultural productions be permitted on the
Property.
3.08 Soil and Water
Any use or activity that causes or is likely to cause soil degradation or erosion or
pollution of any surface or subsurface waters shall be prohibited. This prohibition shall
not be construed as extending to agricultural operations and practices (including,
without limitation, the use of agrochemicals such as fertilizers, pesticides, herbicides,
and fungicides) that are in accordance with sound agricultural management practices of
the NRCS.
3.09 Conservation Plan
All agricultural operations on the Property shall be conducted in a manner
consistent with a resource management system (RMS) 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. All lands enrolled in the Farm and Ranch Lands Protection
Program 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.
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
Conservation 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 rw I tr . 2005. 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 monitor compliance with the Conservation 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 action. If the Grantor
does not comply with the Conservation Plan, NRCS will inform Grantee of the Grantor's
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 Conservation Plan following written notification from NRCS that (a)
there is a substantial, ongoing event or circumstance 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 rights 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 provisions of
this section apply to the highly erodible land conservation 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.
3.11 Drainage
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 Rights
The use of the acreage of this Property for purposes of calculating lot yield on
any other Property shall be prohibited. Grantor hereby grants to Grantee all existing
development rights (and any further development rights that may be created through a
rezoning of the Property) on the Property, except for the right to construct, maintain
and replace the pre-existing structures, and as provided in Section 4.06, and the parties
agree that such rights shall be terminated and extinguished and may not be used or
transferred to any other parcels.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain all other rights
of ownership in the Property, some of which are more particularly described in this
ARTICLE FOUR.
4.02 Possession
Grantor shall continue to have the right to exclusive possession of the Property.
4.03 Use
Grantor shall have the right to use the Property in any manner and for any
purpose consistent with and not prohibited by this Easement as well as applicable local,
New York, State, or federal law.
4.04 LandscaDina Activities
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 damaged or interfering with agricultural production.
4.05 Agricultural Activities
Grantor shall have the right to engage in all types of agricultural production as
the term is referenced in Section 247 of the General Municipal Law and/or defined in
Chapter 25 of the Town Code, provided that such activity shall be conducted in
accordance with the purposes of this Easement and the Conservation Plan.
4.06 Structures
A. Allowable Improvements.
Grantor shall have the right to erect and maintain the following improvements.
on the Property,
as may be permitted by the 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:
(i) Underground facilities used to supply utilities solely for the use and
enjoyment of the Property;
(ii) New construction, limited to de minimus structures, provided such
structures are used
for agricultural production;
(Iii) Renovation, maintenance and repairs of existing structures which
require a building
permit, provided the existing footprint is not increased and the primary purpose of the
structure remains agricultural production.
B. Conditions.
Any allowable improvements shall protect prime agricultural soils, agricultural
production, open
space and scenic vistas, and otherwise be consistent with the Purpose of this Easement.
4.07 Alienability
Grantor shall have the right 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 speCifically set forth that the
interest thereby conveyed is subject to this Easement, without modification or
amendment of the terms of this Easement, and shall incorporate this Easement by
reference, specifically setting for the date, office, Iiber and page of the recording
hereof. The failure of any such instrument to comply with the provisions hereof shall
not affect Grantee's rights hereunder.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments and other
governmental or municipal charges, which may become a lien on the Property,
including any taxes or levies imposed to make those payments. 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 municipal charges shall not cause an alienation
of any rights or interests acquired herein by Grantee.
5.02 Liability and Indemnification.
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 America 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. Grantor further agrees to indemnify and hold
harmless Grantee, and the United States of America from and against any and all
claims, costs, expenses, fines, penalties, assessments, citations, personal injury or
death, and the like arising from or out of the existence (actual or alleged) of any and all
environmentally hazardous or toxic substances or materials whatsoever on or under the
Property .
5.03 Annual Mowing Reauirement
In the event Grantor seeks to leave the Property open and fallow, and not perform
or use the Property for agricultural production, then Grantor hereby agrees to mow the
Property on an annual basis at least once during the growing season so as to prevent
successional field growth to predominate. In the event Grantor fails to comply with the
provisions of this section after reasonable notice is given to Grantor by Grantee, then, in
addition to all other remedies set forth herein, Grantee or its agents are hereby
authorized to enter upon the Property to perform such mowing.
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entrv and Insoection.
Grantee shall have the right to enter upon the Property at reasonable times,
upon prior notice to Grantor and not more frequently than annually without Grantor's
consent and in a manner that will not interfere with Grantor's quiet use and enjoyment
of the Property, for the purpose of inspection to determine whether this Easement and
its purposes and provisions are being upheld. 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 Grantor's consent. Grantee shall not have the right to enter upon
the Property for any other purposes, except as provided in Section 6.03, or to permit
access upon the Property by the public.
6.02 Restoration
Grantee shall have the right to require the Grantor to restore the Property to the
condition required by this Easement and to enforce this right by any action or
proceeding that Grantee may reasonably deem necessary. However, Grantor shall not
be liable for any changes to the Property resulting from causes beyond the Grantor's
control, including, without limitation, fire, flood, storm, and earth movement, or from
any prudent action taken by the Grantor under emergency conditions to prevent, abate,
or mitigate significant injury to persons or to the Property resulting from such causes.
6.03 Enforcement Rights of Grantee.
Grantor acknowledges and agrees that Grantee's remedies at law for any
violation of this Easement may be inadequate. Therefore, in addition to, and not 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 obligation on Grantor's
part to be observed or performed pursuant to this Easement is not cured by Grantor
within fifteen (15) 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 open space values or otherwise to further the purposes of this Easement and
which cure period is extended to a reasonable time if such restoration cannot
reasonably be accomplished within 15 days) , Grantee shall have the right at Grantor's
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 prior thereto, or
(iii) To seek or enforce such other legal and/or equitable relief or remedies as
Grantee deems necessary or desirable to ensure compliance with the
terms, conditions, covenants, obligations and purposes of this Easement;
provided, however, that any failure, delay or election to so act by Grantee
shall not be deemed to be a waiver or a forfeiture of any right or available
remedy on Grantee's part with respect to such breach, default, or violation
or with respect to any other breach, default or violation of any term,
condition, covenant or obligation under this Easement.
Grantor shall pay either directly or by reimbursement to Grantee and/or to the
United States of America, all reasonable attorneys' fees, court costs and other expenses
incurred by Grantee or the United States of America (herein called "Legal Expenses") in
connection with any proceedings under this Section, as approved by the Court.
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 mail, with sufficient
prepaid postage affixed and with return receipts requested. Mailed notice to Grantor
shall be addressed to Grantor's address as recited herein, or to such other address as
Grantor may designate by notice in accordance with this Section 2.04. Mailed 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 CorporationQoe Zkl V2.ct.AllState Conservationist, The Galleries of
Syracuse, 441 South Salina 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 SIX 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 Extinauishment of Easement
At the mutual request of Grantor, Grantee, and United 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, 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 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 7.12 ("Proceeds") herein.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between its parties concerning
its subject matter. Any prior agreement between the parties concerning its subject
matter shall be merged into this Easement and superseded by it.
7.02 Amendment
This Conservation Easement may be amended only with the written consent of
Grantee and current Grantor and with the approval of the Secretary of the United
States Department of Agriculture. Any such amendment shall be consistent with the
Purpose of this Easement and shall comply with the Conservation Law or any
regulations promulgated thereunder. Any such amendment shall be duly recorded.
This Easement is made with the intention that it shall qualify as a Conservation
Easement in perpetuity under I.R.C. Section 170(h). The parties agree to amend the
provisions of this Easement if such amendment shall be necessary, to entitle Grantor to
meet the requirements of Code Section 170(h). Any such amendment shall apply
retroactively in the same manner as if such amendment or amendments had been set
forth herein.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be alienated
except pursuant to the provisions of Chapter 25 or 59, as applicable, of the
Town Code of the Town of Southold, 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 which were acquired by the Town prior to any such amendment.
The United States of America 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 7.11 (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 Department 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-governmantal organization in advance of any transfer of this Easement.
7.04 Severabilitv
Any provision of this Easement restricting Grantor's activities, which is
determined to be invalid or unenforceable by a court, shall not be invalidated. Instead,
that provision shall be reduced or limited to whatever extent that court determines will
make it enforceable and effective. Any other provision of this Easement that is
determined to be invalid or unenforceable by a court shall be severed from the other
provisions, which shall remain enforceable and effective.
7.05 Governinq Law
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.
7.06 Interpretation
Regardless of any contrary rule of construction, no provision of this Easement
shall be construed in favor of one of the parties because it was drafted by the other
party's attorney. No alleged ambiguity in this Easement shall be construed against the
party whose attorney drafted it. If any provision of this Easement is ambiguous or shall
be subject to two or more interpretations, one of which would render that provision
invalid, then that provision shall be given such interpretation as would render it valid
and be consistent with the purposes of this Easement. Any rule of strict construction
designed to limit the breadth of the restrictions on use of the Property shall not apply in
the construction or interpretation of this Easement, and this Easement shall be
interpreted broadly to effect the purposes of this Easement as intended by the parties.
The parties intend that this Easement, which is by nature and character primarily
negative in that Grantor has restricted and limited his right to use the Property, except
as otherwise recited herein, be construed at all times and by all parties to effectuate its
purposes.
7.07 Public Access
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 commercial use.
7.08 Warranties
.
.
The warranties and representations made by the parties in this Easement shall
survive its execution.
7.09 Recording
Grantee shall record this Easement in the land records of the office of the Clerk
of the County of Suffolk, State of New York.
7.10 Headings
The headings, titles and subtitles herein have been inserted solely for convenient
reference, and shall be ignored in its construction.
7.11 Continqent Riqhts of the United States of America
In 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 and his or her successor and assigns shall have the right to enforce
the terms of this Easement through any and all authorities available under Federal or
State law. Further, in the event that Grantee attempts to terminate, transfer or
otherwise divest itself of any rights, title or interest of this Easement without the prior
consent of said Secretary and without payment of consideration to the United States as
provided herein, then, at the option of such Secretary, all right, title and interest in this
Easement shall become vested in the United States of America.
7.12 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 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 !):1. 25010. 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 %, and
~%, respectively, representing the proportion each party contributed to the
purchase price of the easement.
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted
and received this Deed of Easement on the day and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
DORSE
BY:
PETE CARROLL
President
ACKNOWLEDGED AND ACCEPTED:
.
BY:
;\44.LnN $-t ~'L-
j)gv ~ Supervisor
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,
and the rights conveyed therein, on behalf of the United States of America.
Authorized ignatory for t e NR S
By: Marilyn Cassidy Step enson
State of New York )
County of tJ,.~I~ ), ss:
On the /4 ~ay of WH.~ in the year 2005 before me, the undersigned,
personally appeared Marilyn Cas~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 (are)
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their capacity (ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
LAUREL DEYOE
Notary Public State of New York
No. 5071323 Ice of individual king acknowledgement
Quali~ed in Seratoga County
CommissIon Expires January 6, 2007
1
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
On this/t;!,day ofJeJt>lMfin the year 2005 before me, the undersigned,
personally appeared fYlar-h1151dt'Y ,personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument,
the individual(s), or the person upon behalf of which the individual(s) acted, executed
the instrumen . KAREN J. HAGEN
NOTARY PUBLIC, State of New York
No. 02HA4927029 /1/
Qualified in Suffolk County t7t/
Commission expires March 21, 20 -
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
On thisJJftaay of~~e year 2005 before me, the undersigned,
personally appeared Pe)qr~~n , personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the same
, . '
.
in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument,
the individual(s), or the person upon behalf of which the imividual(s) acted, executed
the instrument. KARE~l~~~ oll'lew'l'OrK
NOi"'R'I' PUBO\..2r\M927029 '" /) L
~~ No. ftolkcoun., v!y
oualilied in Su March 2\. 20 ~
. n expIres
COtTltTliSSIO
NotaJpublic '
C:\My Documents\Anne\Town of Southold Deeds of Development
Rights \DorsettfarmsEasement12805.doc
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'0','.- ;..;..-.::,......i'f!I'-,::,:. .
AMINOID 01/21/05
ALL tllat certain plot, place or parcel of land, situate, lying and being at Mattituck, In the Town of Southold,
County of Suffolk and State of New York, more particularly bounded and described as follows:
BEGINNING at iii monument on the Southerly fide of Oregon Road distant the following two (2) courses and
distances a$ measured along tile Southerly side of Oregon Road from the corner formed by the intersection of
the Southerly side of Ore~on Road wiU, the Easterly side of Elijah's Lane;
./1. North 63 degrees 53 minutes 30 secondS East, 365.08 feet and;
2. North 63 degrees 58 minutes 10 seconds East, 403.48 feet, and from said point of beginning;
RUNNING THENCE NOrth 63 degrees 58 minutes 10 seconds East along the southerly side of Oregon Road,
305.69 feet;
THENCE South 26 degrees 07 minutes 30 seconds East, 460.25 feet;
THENCE North 61 degrees 52 minutes 30 seconds East, 175.00 feet;
THENCE North 28 degrees 07 minutes 30 seCOnds West, 199.25 feet to a monument and land now or fO'merly
of Joanne &. Thomas Maguire;
THENCE North 57 degrees 14 minutes 30 seconds East, along said land, 142.38 feet;
THENCE South 28 d"g'ees 07 minutes 30 seconds East, still .Iong said land, 30.00 feet;
THENCE North 62 degrees 02 ",Inutes 10 seconds East, still along said 'and and later along land now or
formerly of Joseph A. Deerkoski &. Walter p, Scott, 172.\)1 feet to a monument and iand now or formerly of
Edith J. & Robert D. Scudeilari;
THENCE South 28 degrees 07 minut<l!S 30 seconds East, along said land now or formerly of Scudeliari, 47.23
fee: to land now or formerly cf Andrew S. 8erkman, Barry Berkman &. Debora,h Berkman;
THENce along said land now Or formerly of Berkman the foliowing three (3) courses and d'stance$:
1. South 28 degrees 05 minutes 40 secc-nds East, 838.59 feet;
2. South 28 degrees 00 minutes 50 seconds East, 522.34 feet; and
3. South 29 degrees 05 minutes 30 seconds East, 193.36 feet to land now or formerly of L & R
Vlr,eyards Associates;
TH!"NCE SOlith 64 degrees 02 minut". 50 seconds West aiong said land now Or formerly of L & R Vineyards
Associates, 838.69 feet;
THENCE North 26 degrees 51 minutes 50-seconds West stili aiong said iast mentioned lands, 186l.33 feet to
the monument on the southerly side of Oregon Road and the point or place of 6EGINN1NG.
Certlrlcate Of TIUe
.
..
/(JIJ/y -3- 2-
1111111111111111111111111111111111111111111111111111111
1111111111111111111111111
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT/DOP
Number of Pages: 16
Receipt Number : 05-0024382
TRANSFER TAX NUMBER: 04-31708
Recorded:
At:
LIBER:
PAGE:
District:
1000
Deed Amount:
Section:
100.00
EXAMINED AND
$0.00
FOLLOWS
Block:
04.00
CHARGED AS
Received the Following Fees For
Above Instrument
Exempt
NO Handling
NO NYS SRCHG
NO Notation
NO RPT
NO Transfer tax
NO
Page/Filing
COE
TP-584
Cert.Copies
SCTM
Comm.Pres
$48.00
$5.00
$5.00
$10.40
$0.00
$0.00
Fees Paid
TRANSFER TAX NUMBER: 04-31708
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
Edward P.Romaine
County Clerk, Suffolk County
fD)~~~~W~rnJ
lf1l MAR 2 4 2005 l1!J
DEPT OF LAND
PRESERVATION
03/08/2005
09:07:35 AM
000012375
384
Lot:
008.002
$5.00
$15.00
$0.00
$30.00
$0.00
$118.40
Exempt
NO
NO
NO
NO
NO
[!][!]
of pages
TORRENS
/
F~ECDf-:[)E['
2005 1'1.:::( Dt: 0'3: O?~ 3-5 i~i'1
Serial #
Ecl~'J.3r-d P.~~oil!.:tine
CLERK DF
SUFFOLK COUr-ir-/
l C{l!)0123?5
Certificate #
P 3:34
[:.1"# 04-3170B
Prior Ctf. #
Deed / Mortgage Instrument
Deed / Mortgage Tax Stamp
Recording / Filing Stamps
3
FEES
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec.! Assit.
or
Spec. / Add.
TOT. MTG. TAX
Dual Town _ Dual County
Held for Appointment
Transfer Tax 0 _
Mansion Tax
The property covered by this mortgage is
or will be improved by a one or two
family dwelling only.
YES or NO
1(/& dJO
SectIOn
If NO, see appropriate tax clause on
. page # of this instrum~IJt. ,---
- d"-~
5 Community Preservation Fund
Real Property
Tax Service
Agency
Verification
Consideration Amount $
0'
o
1000 10000 0400 008002
CPF Tax Due $
Improved
Vacant Land
/'
6 Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO:
TD
If)
.
TD
Lisa Clare Kombrink, Esq., P.e.
235 Hampton Road
Southampton, NY 11968
TO
7 Title Com an Information
Co. Name Gun '>'7 t7Y1 v.:' ea I
Title # c> 'f3CJ 1552-
Suffolk Count Recordin & Endorsement Pa e
8
This page forms part of the attached
Grant of Development RightscEasement
made by:
(SPECIFY TYPE OF INSTRUMENT)
DORSET FARMS, INC.
The premises herein is situated in
SUFFOLK COUNTY, NEW YORK.
In the Township of
In the VILLAGE
or HAMLET of
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
TO
SOUTHOLD
TOWN OF SOUTHOLD
(over)