Loading...
HomeMy WebLinkAboutFicner, Stacia (2)Photo Baseline Documentation 1000-95-4-6.2 CAROLYN BLASKIEWICZ, BARBARA BOKINA, SUSAN CHESHIRE, JEANETTE SAYRE and STACIA FICNER to TOWN OF SOUTHOLD 6.5443 acres development rights easement Easement dated November 20, 2008 Recorded December 22, 2008 Suffolk County Clerk- Liber D00012575, Pages 578 PHOTO BASELINE DOCUMENTATION FICNER Farm Development Rights Easement PROPERTY CONDITION CERTIFICATION This is to certify that Melissa Spiro, Land Preservation Coordinator, representing the Town of 5outhold (GRANTEE), did hereby inspect the Ficner Farm Development Rights Easement together with Melanie Doroski, Sr. Administrative Assistant for the Land Preservation Department and John P. Sepenoski, Chairman of the Land Preservation Committee, and with their findings prepared the following Photo Baseline Documentation report. This photo baseline is an accurate description of the current land uses and physical features of the property as of November 12, 2008. The Photo Baseline Documentation report, which is attached hereto and made a part hereof, contains: · Property Tax Map Location · Property Condition including description and observed current conditions · Survey of the property with photo points · GPS coordinates for photographs and fourteen (14) photographs · 2004 aerial view of the subject property and surrounding parcels · Copy of recorded Grant of Development RiBhts Easement The Grantee further certifies that no structures thereon other than those noted in the "man-made alterations" section of the Property Condition report were found and that there are no activities on the easement property which are inconsistent with the terms and covenants contained in the Grant of Development Rights Easement, dated November 20, 2008, and recorded in the Suffolk County Clerk's Office on December 22, 2008, Liber D00012575, Page 578. GRANTEE: Town of Southold By: Melissa Spiro Land Preservation Coordinator T A X M A P L O C A T I O N 4.3A 5.0A P R O P E R T Y C O N D I T I O N DEVELOPMENT RIGHTS EASEMENT PROPERTY CONDITION REPORT ~Date of purchase: 11//20/08 ate of last visit: Date of this visit: 11/12/08 Tax Map #1000-95-4-6.2 Easement acreage: 6.5443 acres Zoning: A/C Location of Property: 7990 Oregon Road (Ficner Farm) Cutchogue, New York Purpose of Easement: 1. Current Owner(s): Address: Telephone No. agricultural value Stacia Ficner, et al. 7990 Oregon Road, Cutchogue, NY 11935 631-734-6906 2. Contact Person: Stacia Ficner o Prior notification required before visit? Yes Specific terms? Allow reasonable access to the premises for purposes of ascertaining site conditions and for inspection of the premises for compliance with Grant of Development Rights. Did owner/representative accompany the monitor? No 4. Were you able to walk/see the easement boundaries? Yes 5. Condition of Property: Property is in good condition and planted in row crops. Land use: What are the present land use practices? Agricultural - planted row crops What are the future land use practices contemplated by the landowners? Row crops Are they consistent with the terms of the easement? Yes Top Soil removed Hazardous substance generation Hazardous substance storage Hazardous substance disposal Landfill Waste disposal Exploration/extraction of minerals Exploration/extraction of hydrocarbons Recreational activities degrading/compacting soil No No No No No No No No No Man-made alterations: Have there been any additions or deletions of man-made alterations to the property? Fences No Ponds No Road Yes (existing dirt farm road) Trails No Buildings No Power lines No Other Yes If so, has the LPC been notified of the activity as per the easement? Describe. There is an existing dirt farm road within the easement area that runs along thc eastern and southern boundaries. An unused well or septic system cover is located within 25' ~wide strip of easement area. Grantor shall abandon said well or septic system according to all applicable regulations if application is made for a subdivision of the Reserve Area for the farm. 8. Natural events: Have any natural events occurred since the last visit? Describe. n/a Flood Plant Disease Other Erosion Vegetation (non-native/invasive vegetation) Are the restoration procedures, if any, consistent with the terms of the easement? 9. Outline any specific monitoring procedures required for this easement, if necessary. 10. Describe the use and conditions of the surrounding properties. Are any threats imposed upon the easement by the current use of the adjacent properties? Adjacent agricultural property, development rights sold to Town. Exotic Species Stormwater Runoff No New Structures No No Other No Land Steward(s) Comments: The Ficner Farm is located between County and Town preserved farmlands. OsThe southerly boundary adjoins Town park & recreation area. Few residential homes are located along this ection of roadway on Oregon Road. Landowner(s) Comments: n/a We, Melissa Spiro and Melanie Doroski [print], Monitor(s) for the Southold Town Department of Land Preservation and/or Land Preservation Committee for the above property, agree that this report is an accurate representation of the physical condition of the property under the easement. Signature: Signature: Date: 11/21/08 Date: 11/21/08 I(We), .[print], Owner(s) and/or Representative for the Owner(s) of the above property, agree that this prepared report is an accurate representation of the physical condition of the property under the easement. Signature: Date: aature: Date: S U R V E Y SUP-.V~¥ OF Pt~.OPFt~T'r' SITUATE: C~UTCHO~UE TOIdN, SOUTHOLID SUt=t=OL~ ~,OUNT'f, NY JOHN C. EFff,~RS LAND SURVEYOR 2 0 0 8 P H O T O S Photo Baseline Report FICNER Farm SCTM #1000-95-4-6.2 Photos taken 11/12/08 GPS equipment was used to create a layer of the points at which photos were taken. This layer will be saved and maintained. An Excel spreadsheet of the coordinates is included within the Photo Baseline Report. The GPS layer will be used for future monitoring purposes. The layer will be loaded onto the GPS unit allowing navigation to the same points. The survey included with the Photo Baseline Report shows the same photo point with lines indicating the point and the direction from which the photo was taken. FICNER FARM GPS Coordinates Photo Date: November 12, 2008 Degree of Accuracy: 1 +/- meter Photo Point Project Xcoord Ycoord Ficner 41.02799 -72.5156 Ficner 41.02444 -72.5101 Ficner 41.02405 -72.5106 Ficner 41.02722 -72.5154 Ficner 41.02762 -72.516 Date Recorded 11/12/2008 11/12/2oog 11/12/2008 [[/12/2008 11112/2008 SCTM #1000-95-4-6 - Development Rights Easement FICNER Property - site visit 1 l/12/08 Photo Point #1 - monument located at northeast corner of boundary lines Looking in a southeasterly direction along the easterly boundary line from monument located along Oregon Road which marks the northeast corner of the property. Photo shows beginning of dirt farm road, row crops (garage not in easement area). Looking in a southwesterly direction along the northerly boundary line from the monument located along Oregon Road which marks the northeast corner of the property. Photo shows farmhouse, driveway, Oregon Rd (not in easement area). Photo Point #2 - monument located at southeast corner of boundary lines A. Looking in a southwesterly direction along the southerly boundary line from a monument which marks the southeast corner of the property, Photo shows tree line, some row crops. B. Looking in a west northwesterly direction from a monument which marks the southeast corner the property. Photo shows farm road, row crops. C. Looking in a north northwesterly direction along the easterly boundary line from a monument which marks the southeast corner of the property. Photo shows row crops, farm road (grass field on adjacent parcel not part of easement area). Photo Point #3 - monument located at southwest corner of boundary lines A. Looking in a northwesterly direction along the westedy boundary line from a monument which marks the southwest corner of the property. Photo shows shrubbery and row crops. B. Looking in a northeasterly direction along the southerly boundary tine from a monument which marks the southwest corner of the property. Photo shows shrubbery and row crops. Photo Point ~4 - point along the westerly boundary line marking the approximate location of the division between the easement area and the reserve area. A. Looking in a northwesterly direction along the westerly boundary line from a point tocated at the intersection of the westerly boundary line and a dirt farm road running from southwest to northeast through the reserve area Photo shows farmhouse, garage ~n reserve area B. Looking in a northerly direction from a point located on the westerly boundary line from a point located at the intersection of the westerly boundary line and a dirt farm road running from southwest to northeast through the reserve area, Photo shows back of e, farm road ~ of row crc not within Looking in a southeasterly direction from a point located on the westerly boundary line at the intersection of the westerly boundary line and a dirt farm road running from southwest to northeast through the reserve area. Photo shows beginning lines of row crops planted in reserve area. D. Looking in a south southeasterly direction along the westerly boundary line from a point located on the westerly boundary line at the intersection of the westerly boundary line and a dirt farm road running from southwest to northeast through the reserve area. Photo shows row crops and farm road. Farm road located on adjacent parcel. Photo Point #5 - monument located at northwest corner of boundary lines. A. Looking in a northeasterly direction along the northerly boundary line from a monument located along Oregon Road which marks the northwest corner of the property. Photo shows Oregon Road and farmhouse (within reserve area). B. Looking in a southeasterly direction from a monument located along Oregon Road which marks the northwest corner of the property. Photo shows farmhouse, tree line within reserve area. C. Looking in a south southeasterly direction along the westerly boundary line from a monument located along Oregon Road which marks the northwest corner of the property. Photo shows farm house and tree line within reserve area, and a farm road that is located on adjacent parcel, A E R I A L R E C O R D E D E A S E M E N T SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Tl~e of Instrument: EASEMENT N,~m~er of Pages: 19 Receipt N-m~er : 08-0120673 TRANSFER TAX NUMBER: 08-11764 District: ~00 Deed Amount: Recorded: At: LiBER: PAGE: Section: Block: 095.00 04.00 EXAMINED AND CHARGED AS FOLLOWS $0.00 12/22/2008 09:40:22 ~ D00012575 578 Lot: 006.002 Received the Following Fees For Above instrument Exempt Page/Filing $95.00 NO Handling COE $5.00 NO NYS SRCHG TP-584 $5.00 NO Notation Cert. Copies $0.00 NO RPT Transfer tax $0.00 NO Co-u-.Pres Fees Paid TRANSFER TAX NUMBER: 08-11764 THIS PAGE IS A PART OF THE INSTRUMENT THIS IS NOT A BILL $20.00 $15.00 $0.00 $30.00 $0.00 $170.00 Exempt NO NO NO NO NO JAN 13 2009 OEPT OF .,? O Judith A. Pascale County Clerk, Suffolk County TORRENS Serial # Certificate # · Prior Cfi. # RECORDED 2008 Dec 22 09:40:22 rD1 J~ith fi. Pa$cale CL£RK OF SUFFOLK COUNT'/ L D00012~6~ P 5?8 DTg 08-11764 . Deed / Mortgage Instrument Deed / Mortgago Tax Stamp [ Recording / Filing Stamps 3 [ FEllS Page / Filing Fe¢ ~ ~ ~' Handling ~0' ~ 00 TP-584 ~ * Notation BA-52 17 (County) EA-5217 (State) R.P.T.S.A. Comm. of Ed. Affidavit Certified Copy NYS Surcharge 15. 00 Other 4 DmL Sub Total 5. 00 1'20 RealProperty looo 09500 0400 006002 Tax Service Agency ~ Verification 6 Satisfactions/Discharges/Releases List Property Owners Mailing Address · RECORD & RETURN TO: Mortgage Amt, I 1. B~ic ~ 2. Additional Tax Sub Total SpecJAssit. or Sp~./Add. TOT. MTG. TAX Dual Town -- Dual County UckI ~or Appoin{m_fn~ Mansion ~ Thc propexW ~ove~d by this mortgage ~S or will bo improvext by a onc or two family dwelling 6nly. YES or lqO .- If lqO, soo appropriate tax cinusc on page # of ti~s ins?~ent. 5 gommunlty P~eservation Fund Consideration Amount ~g.-~l~ C~ CPFTaxDue ' $. -0 -- Improwd. Vacant Land TD . TD TD Title Com?~,an, y Information Suffolk County Recording & Endorsement Page made by: 8 (SPEC~ T~ OF ~S~U~) The pre.es here~ is si~ated in S~OLK CO~, NEW YORK. TO In &e Towmhip' of ~U~O~ BO~S 6 ~U 8 MUST BE ~ED OR P~D ~ BLACK ~ O~Y P~OR TO ~CO~G OR ~G. (owr) GRANT OF DEVELOPMENT RIGHTS EASEMENT THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on the 0¢~) day of November, 2008 at Southold, New York. CAROLYN BLASKIEWICZ, 443 52nd Street, Lindenhurst, NY 11757, BARBARA BOKINA, 1704 Pebble Beach Path, Riverhead, NY 11901, SUSAN CHESHIRE, 2463 River Road, Calverton, NY /.1933, .IEANEI-I-E SAYRE, 970 Highland Road, Cutchogue, NY 11935 and STACIA FICNER (Life Tenant), 7990 Oregon Road, Cutchogue, New York 11935 (herein collectively called "Grantor"), and the TOWN OF SOUTHOLD, a municipal corporation, having its principal office at 53095 Main Road, P.O. Box 1179, Southold, New York 11971(herein called "Grantee"). INTRODUCTION WHEREAS, Grantor is the owner in fee simple of cei-tain real property located in the Town of Southold, Suffolk County, New York, identified as part of SCTM# 1000-95-4-6 more fully described in SCHEDULE A attached hereto and made a part hereof (the "Property") and shown on the survey prepared by John C. Ehlers Land Surveyor dated September 25, 2008 and last revised November 19, 2008, (the "Survey"); and WHEREAS, the Property is located in the A-C Zoning District of the Town of Southold; and WHEREAS, the Property contains soils classified as Class I and Class I! worthy of conservation as identified by the United States Department of Agriculture Soil Conservation Service's Soil Survey of Suffolk County, New York; and WHEREAS, the Property is part of the New York State Agricultural District #1, and the Grantor wishes to continue using the Property for agricultural production as defined in this Easement; and WHEREAS, the Property is currently used as field and grain crops; and WHEREAS, it is the policy of the Town of Southold (the "Town"), 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 New York Town Law ("Town Law") to protect environmentally sensitive areas, preserve prime agricultural soils, to protect the scenic, open space character of the Town and to protect the Town's resort and agricultural economy; and WHEREAS, the Property in its present scenic and agricultural condition has substantial and significant value as an aesthetic and agricultural resource since it has not been subject to any development; and WHEREAS, Grantor and Grantee recognize the value and special character of the region in which the Property is tocated, 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 Five Hundred Sixteen Thousand Nine Hundred Ninety-Nine and 70/100 DOLLARS ($516,999.70) 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 HAVEAND TO HOLD said Development Rights Easement and the rights and interests in connection with it and as hereinafter set forth with respect to the Property unto the Grantee, its successors and assigns forever, reserving, however, for the direct use and benefit of the Grantor, its legal representatives, successors and assigns, the exclusive right of occupancy and of use of the ProperLy, 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: 0.0t Grantor's Warranty Grantor warrants and represents to the Grantee that Grantor is the owner of the Property described in Schedule A, free of any mortgages or liens and possesses the right to grant this easement. The Seller shall convey and the Purchaser shall accept the Grant of Development Rights Easement subject to existing covenants and easements of record. 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 Town Law and Section 247 of the New York General Municipal Law ("General I~unicipal Law") to acquire fee title or lesser interests in land, including development rights, easements, covenants, and other contractual rights which may be necessary or desirable for the preservation and retention of agricultural lands, open spaces and natural or scenic resources. 0.03 Purpose The parties recognize the environmental, natural, scenic and agricultural values of the Property and have the common purpose of preserving these values. This instrument 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 environmental, scenic, agricultural and natural values 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 the enactment of 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 Baseline Documentation Grantee acknowledges by acceptance of this Development Rights Easement that present uses of the Property are compatible with the purposes of this Easement. In order to aid in identifying and documenting the present condition of the Property's natural, scenic, agricultural, and aesthetic resources and otherwise to aid in identifying and documenting the Property's agricultural values as of the date hereof, to assist Grantor and Grantee with monitoring the uses and activities on the Property and ensuring compliance with the terms hereof, Grantee has prepared, with Grantor's cooperation, an inventory of the Property's relevant features and conditions (the "Baseline Documentation"). This baseline documentation includes, but need not be limited to a survey dated September 25, 2008 last revised November 19, 2008 prepared by ]ohn C. Ehlers Land Surveyor, and a Phase 1 Environmental Site Assessment dated October 1, 2008, by Cashin Associates, P.C., an aerial photograph of the Property, a photograph taken November 12, 2008 showing a portion of the 25' wide strip of the Property with a well or cesspool cover within the area, and maps on file with the Town Land Preservation Department. Grantor and Grantee acknowledge and agree that in the event a controversy arises with respect to the nature and extent of the Grantor's uses of the Property or its physical condition as of the date hereof, the parties shall not be foreclosed from utilizing any other relevant or material documents, surveys, reports, photographs or other evidence to assist in the resolution of the controversy. 0.06 Recitation In consideration of the previously recited facts, mutual promises, undertakings, and forbearances contained in this Development Rights Easement, the parties agree upon its provisions, intending to be bound by it. ARTICLE ONE THE EASEMENT 1,0! Type This instrument conveys a Development Rights Easement (herein called the "Easement"). This Easement shall consist of the limitations, agreements, covenants, use restrictions, rights, terms, and conditions recited herein. Reference to this "Easement" or its "provisions" shall include any and all of those limitations, covenants, use restrictions, rights, terms and conditions. 1.02 Defi.~__nition "Development Rights" shall mean the permanent legal interest and right to prohibit or restrict the use of the Property for anything other than agricultural production as that term is presently referenced in §247 of the General Municipal Law and/or defined in Chapter 70 of the Town Code of the Town of Southold (the "Town Code" or the "Code") and including the production of crops, livestock and livestock products as defined in Section 30:~(2)(a)-(i) of the New York Agriculture and Markets Law ("Agriculture and Markets Law"), now or as such Laws and/or Code may be amended. No future restrictions or limitation in the definition shall preclude a use that is permitted under the current Laws and/or Code. 'Equestrian Rights" shall mean the right to use the Property and to erect structures for the purpose of boarding, breeding, raising and training of horses or other equines. The term 'equestrian rights' shall not include riding academies or equine events, such as rodeos, horse shows or polo matches where spectators are expected to attend. "Riding Academy" shall mean a business use of a lot for any of the following purposes: the letting of horses for hire to individuals or groups whether supervised or unsupervised, horseback riding instruction or the holding of horse shows or other equine events. 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 bindiog 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 Town Land Preservation Committee and other applicable provisions of the Town Code and Section 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, nursery mats, 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; Mininq 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 or 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 further subdivided pursuant to Town Law Sections 265, 276 or 277 or Section 335 of the New York Real Property Law, as they may be amended, or any other applicable State or local law. "Subdivision" shall include the division of the portion of the Property from which the development rights are acquired into two or more parcels, in whole or in part. 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. 3.04 Dumpinq The dumping or accumulation of unsightly or offensive materials including, but not limited to trash, garbage, sawdust, ashes or chemical waste on the Property shall be prohibited. This prohibition shall exclude materials used in the normal course of sound agricultural practices, including fertilization, composting and crop removal. 3.05 Siqns 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. Signs are subject to regulatory requirements of the Town. 3.06 Utilities The creation or placement of overhead utility transmission lines, utility poles, wires, pipes, wells or drainage systems ("utilities") on the Property to service structures approved pursuant to Section 4.06 shall be prohibited without the prior written consent of the Grantee. Overhead utilities must, to the extent possible, be constructed within 30 feet of the centerline of any roads or driveways, and may be used solely to service the permitted structures on the Property. The Property may not be used for the creation or placement of utilities to service any other properties. 3.07 Prohibited Uses The use of the Property or structures on it for any residential, commercial or industrial uses, permanent or temporary, including but not limited to a riding academy, shall be prohibited. For the purposes of this section, agricultural production, as that term is presently referenced in Section 247 of the General Municipal Law and/or defined in Chapter 70 of the Town Code and including the production of crops, livestock and livestock products as defined in Section 301(2)(a)-(i) of the Agriculture and Markets Law, now or as such Laws and/or Code may be amended, shall not be considered a commercial use. Uses, improvements and activities permitted now or in the future on agricultural land protected by a development rights easement or other instrument, shall not be considered a commercial use. No improvements, uses or activities inconsistent with current or future agricultural production shall be permitted on the Property. 3.08 Soil an__d 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. 3.09 Drainacle The use of the Property for a leaching or sewage disposal field shall be prohibited. The use of the Property for a drainage basin or sump shall be prohibited, except in accordance with sound agricultural management practices and in order to control flooding or soil erosion on the Property. 6 _3.10 Development Riqht.s_ 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 any pre-existing structures, and to construct new structures, as such rights may be provided in Section 4.06, and the parties agree that any other such development 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, State, or federal law. 4.04 Landscapinq Activities Grantor shall have the right to continue the current and/or customary modes of landscaping, pruning and grounds maintenance on the Property, as evidenced by the documentation set forth in Section 0.05. Grantor shall have the right to remove or restore trees, shrubs, or other vegetation when dead, diseased, decayed or damaged or interfering with agricultural production, to thin and prune trees to maintain or improve the appearance of the Property, and to mow the Property. 4.05 Aqricultural 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 70 of the Town Code, and including the production of crops, livestock and livestock products as defined in Section 301(2)(a)-(i) of the Agriculture and Markets Law, now or as such Laws and/or Code may be amended. No future restrictions in said Laws and/or Code or limitation in the definitions set forth in said Laws and/or Code shall preclude a use that is permitted under the current Laws and/or Code. Notwithstanding the definition of agricultural production in Chapter 70 of the Town Code or any successor chapter, structures shall be prohibited except as set forth in Section 4.06 and as permitted by the Town Code now or in the future on agricultural lands protected by a development rights easement or other instrument. 4.06 Structures A. Allowable Improvements. Grantor shall have the right to erect and maintain the following improvements on the Property, now or as may be permitted by the Town Code as same may be amended 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: (i) Underground facilities used to supply utilities solely for the use and enjoyment of the Property; (ii) (iii) Unused well or septic system, the cover of which is noted on the Survey and located within the 25' wide area of the Property shown on the Survey; Grantor shall abandon said well or septic system according to all applicable regulations if the landowner applies and the Town Planning Board approves a subdivision of the 80,000 sq. ft. Reserve Area from the Development Rights Easement Area (the Property herein), both Areas shown on the Survey; New construction, including drainage improvement structures, provided such structures are necessary for or accessory to agricultural production; any new construction as permitted by this 4.06 shall only be located in the Agricultural Structure Area described in Schedule "B" attached and made a part hereof; (iv) Renovation, maintenance and repairs of structures built or permitted pursuant to this Section 4.06, except the well or septic system described in (ii) above. 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. No construction is permitted outside of the Agricultural Structure Area described in this 4.06. C. Environmental Sensitivity During Construction. The use and location of any improvement permitted hereunder shall be consistent with the purposes intended herein, and construction of any such improvement shall minimize disturbances to the environment. Grantor shall employ erosion and sediment control measures to mitigate any storm water runoff, including but not limited to minimal removal of vegetation, minimal movement of earth and minimal clearance of access routes for construction vehicles. D. Replacement of Improvements. In the event of damage resulting from casualty loss to an extent which renders repair of any existing improvements impractical, erection of a structure of comparable size, use, and general design to the damaged structure shall be permitted in kind and within the same general location subject to the review and written approval of Grantee, pursuant to applicable provisions of the Town Code. 4.07 Notice Grantor shall notify Grantee, in writing, before the construction of any permanent or temporary structures as permitted in Section 4.06 herein and shall file all necessary applications and obtain all necessary approvals that may be required by this Easement or by the Town Code, and shall provide documentation as may be required for such applications. 4.08 Alienability Grantor shall have the right to convey, mortgage or lease all of its remaining interest in the Property, but only subject to this Easement. Grantor shall promptly notify Grantee of any conveyance of any interest in the Property, including the full name and mailing address of any transferee, and the individual principals thereof, under any such conveyance. The instrument of any such conveyance shall specifically set forth that the interest thereby conveyed is subject to this Easement, without modification or amendment of the terms of this Easement, and shall incorporate this Easement by reference, specifically setting for the date, office, liber and page of the recording hereof. The failure of any such instrument to comply with the provisions hereof shall not affect Grantee's rights hereunder. 4.09 Further Restriction Nothing in this Easement shall prohibit or preclude Grantor from further restricting the use, imProvements or structures on the Property. Any such further restrictions shall be consistent with and in furtherance of the general intent and purpose of this Easement as set forth in Section 0.03. ARTICLE FIVE GRANTOR'S OBLIGATIONS 5.01 Taxes and Assessments Grantor shall continue to pay all taxes, levies, and assessments and other governmental or municipal charges, which may become a lien on the Property, including any taxes or levies imposed to make those payments subject, however, to Grantor's right to grieve or contest such assessment and defer payment pending such action. 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 Indem_gnification Grantor shall indemnify and hold Grantee harmless for any liability, costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or any of its officers, employees, agents or independent contractors, all of which shall be reasonable in amount, except those due solely to acts of Grantee arising from injury due to the physical maintenance or condition of the Property caused by Grantor's actions or inactions, or from any taxes, levies or assessments upon it or resulting from this Easement, all of which shall be considered Grantor's obligations. 5.03 Third Party Claims Grantor shall indemnify and hold Grantee harmless for any liability, costs, attorneys' fees, judgments, or expenses, charges or liens to Grantee or any of its officers, employees, agents or independent contractors, all of which shall be reasonable in amount resulting: (a) from injury to persons or damages to property arising from any activity on the Property, except those due solely to the acts of the Grantee, its officers, employees, agents, or independent contractors; and (b) from actions or claims of any nature by third parties arising out of the entering into or exercise of rights under this easement, excepting any of those matters arising solely from the acts of Grantee, its officers, employees, agents, or independent contractors. 5.04 Grounds Maintenance Reauirement zf Grantor leaves the Property open and does not engage in agricultural production for five (5) consecutive years, then Grantor shall implement a Natural Resources Conservation Plan (the "Plan") approved by Grantor (which approval by Grantor shall not be unreasonably withheld) and by Grantee, to maintain or restore the Property to the condition in which it existed on the date of this Easement, as evidenced by the Baseline Documentation referred to in Section 0.05, in order to protect the environmental, natural, scenic and agricultural values of the Property. in the event Grai~tor fails to comply with thc 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 implement the Plan. ARTICLE SIX GRANTEE'S RIGHTS 6.01 Entry and Inspection Grantee shall have the right to enter upon the Property at reasonable times, upon prior notice to Grantor and in a manner that will not interfere with Grantor's quiet use and enjoyment.of the Property, for the purpose of inspection to determine whether this Easement and its purposes and provisions are being upheld. Grantee shall not have the right to enter upon the Property for any other purposes, except as provided in Section 5.04 and 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, earth movement, wind, weather or from any prudent action taken by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to persons or to the Property or crops, livestock or livestock products resulting from such causes. 6.03 Enforcement Riqhts 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 ten (10) days notice thereof by Grantee (which notice requirement is expressly waived by Grantor with respect to any such breach, default or violation which, in Grantee's reasonable judgment, requires immediate action to preserve and protect any of the agricultural values or otherwise to further the purposes of this Easement), Grantee shall have the right at 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, 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. The cure period in this Section 6.03 may be extended for a reasonable time by Grantee if such restoration cannot reasonably accomplished within ten (10) days. 6.04 Notice All notices required by this Easement must be written. Notices shall be delivered by hand or registered mail, return receipt requested, or by certified mail, with sufficient prepaid postage affixed and with return receipts requested. Nailed notice to Grantor shall be addressed to Grantor's address as recited herein, or to such other address as Grantor may designate by notice in accordance with this Section 6.04. Nailed notice to Grantee shall be addressed to its principal office, recited herein, marked to the attention of the Supervisor and the Town Attorney, or to such other address as Grantee may designate by notice in accordance with this Section 6.04. Notice shall be deemed given and received as of the date of its manual delivery or three (3) business days after the date of its mailing. ~o.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/Condemnation At the mutual request of Grantor and Grantee, a court with jurisdiction may, if it determines that conditions surrounding the Property have changed so much that it becomes impossible to fulfill the Purpose of this Easement described in Section 0.03, extinguish or modify this Easement in accordance with applicable law. In that case, the mere cessation of farming on the Property shall not be construed to be grounds for extinguish of this Easement. If at any time the Property or any portion thereof shall be taken or condemned by eminent domain, by the Grantee or by any other governmental entity, then this Easement shall terminate with respect to the Property, or portions thereof so taken or condemned, and the Property shall not be subject to the limitations and restrictions of this Easement. In such event, the Grantor, his successors or assigns, shall not be required to pay any penalties, but the value of the Property shall reflect the limitations of this Easement. Any condemnation award payable to the Grantor shall be in proportion to the value attributable to the residual agricultural and/or open space value of the Property and if the condemnation is undertaken by an entity other than the Grantee, then the remaining portion of the condemnation award shall be payable to the Grantee in proportion to the value attributable to the development rights transferred hereby. ARTICLE SEVEN MISCELLA___~N EOU S 7.01 Entire Understandinq This Easement contains the entire understanding between its parties concerning its subject matter. Any prior agreement between the parties concerning its subject matter shall be merged into this Easement and superseded by it. 7.02 Amendment This easement may be amended only with the written consent of Grantee and current Grantor and in accordance with any applicable State and local law. Any such amendment shall be consistent with the Town Code and any regulations promulgated thereunder and with the Purpose of this Easement as set forth in Section 0.03 and shall be duly recorded. This Easement is made with the intention that it shall qualify as a Conservation Easement in perpetuity under Internal Revenue Code Section :~70(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 Section J. 70(h). Any such amendment shall apply retroactively in the same manner as if such amendment or amendments had been set forth herein. 7.03 Alienation No property rights acquired by Grantee hereunder shall be alienated except pursuant to the provisions of Chapter 70 of the Town Code or any successor chapter and other applicable laws, upon the adoption of a local law authorizing the alienation of said rights and interest, following a public hearing and, thereafter, ratified by a mandatory referendum by the electors of the Town of Southold. No subsequent amendment of the provisions of the Town Code shall alter the limitations placed upon the alienation of those property rights or interests which were acquired by the Town prior to any such amendment. 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 to and easements on land located within New York shall govern this Easement in all respects, including validity, construction, interpretation, breach, violation and performance. 7.06 Interpretation Regardless of any contrary rule of construction, no provision of this Easement shall be construed in favor of one of the parties because it was drafted by the other party's attorney. No alleged ambiguity in this Easement shall be construed against the party whose attorney drafted it. If any provision of this Easement is ambiguous or shall be subject to two or more interpretations, one of which would render that provision invalid, then that provision shall be given such interpretation as would render it valid and 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 ali parties to effectuate its purposes. 7.07 Public Access Nothing contained in this Easement grants, nor shall it be interpreted to grant, to the public, any right to enter upon the Property, or to use images of the property. Grantee may use images of the Property for non-commercial reporting of this Easement. 7.08 Warranties The warranties and representations made by the parties in this Easement shall survive its execution. 7.09 Recordinq 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 Headinos The headings, titles and subtitles herein have been inserted solely for convenient reference, and shall be ignored in its construction. 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: C RO N B EW 'CZ, RBARA BOK[NA, Grantor SUSAN CHESHIRE, Grantor ]EAI~ I I I: SAYRE, Grantor(] S~AC[A F[CNER, Grantor ACKNOWLEDGED AND ACCEPTED: 14 TOWN OF SOUTHOLD, Grantee BY: ]~hn P. Sepenoski Deputy Supervisor STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: On this,~ day of November in the year 2008 before me, the undersigned, personally appeared CAROLYN BLASK[EW[CZ personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(les), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: PATRICIA L. FALLON Notary Public, State Of New York No. 01FA4950146 Qualified In Suffolk County Commission Expires April 24, On this'~0 day of November in the year 2008 before me, the undersigned, personally appeared BARBARA BOK[NA personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(les), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: PATRICIA L. FALLON Notary Public, State Of New Yore No. 01FA4950146 Commission Expires Apr I 24, ~' PATRICIA L. FALLON Note. fy Public, Stc.!~ ,3; New York On this ~t~ day of November in the year 2008 before me, the undersigned, personally appeared SUSAN CHESHIRE personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(les), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public Notary publiC, State Of NewYo~k ~-Jo. 01FA4950146un STATF~OF NEW YORK ) COUNT~FOLK ) SS: On this a~;[~y of November in the year 2008 before me, the undersigned, person~ltLy~appeared JEANt:I I~ SAYRE personalty known to me or proved to me on the b~a~s of satisfactory evidence to be the individual(s) whose name(s) is (are) sub~bed to the within instrument and 15 a~;/~nowledged Lo me that he/she/they executed the same ~n h s/her/their capadty(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, Notary Public STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: PATRICIA L FALLON Notary Public, State Of New York No. 01FA4950 46 On this ~.~ day of November in the year 2008 before me, the undersigned, personally appeared STAC[A F[CNER 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. Notary Public PATRICIA L FALLON Notary Public, State Of NewYork No. 01 FA4950146 Qua[Zt;~d n Sufiolk Coun~] ~, / Commission Expires April 24. ~]f STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: On this-~) day of November in the year 2008 before me, the undersigned, personally appeared John P. Sepenoski, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(les), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public PATRICIA L. FALLON Notary Public, State Of New'fork No. 01FA4950146 QL~- i~ied In Suffotk County Corr~rnission Exp res Ap ii 24, E# Z:fFown of Southold/Ficner/Ficner easement 10208cleanversion 16 t~Uo insuranco company SCHEDULE A - DESCRIPTION Title No.: NEW YORK METRO 800-853-4803 212-g22-1593 fax stewaftnewyork.com ST08-01917 AMENDED 11/10/2008 DEVELOPMENT RIGHTS EASEMENT AND AGRICULTURAL STRUCTURE'AREA V~ITHIN DEVELOPMENT RIOHTS EASEMENT ~ ALL that certain plot, piece or parcel of land, situate, lying and being at Cutchogue, in the Town of Southold, County of Suffolk and State of New York, being bounded and described as follows: BEGINNING at a monument located on the southerly side of Oregon Road distant 1029.15 feet westerly from the comer formed by the intersection of the southerly side of Oregon Road with the westerly side of Depot Lane; RIJNNING THENCE from said monument along land now or formerly oflVIa .ttituck Farms Holdings LLC South 37 degrees 27 minutes 20 seconds East, 1990.88 feet to a monument; THENCE along land now or formerly of the Town of Southold South 53 degrees 45 minutes 40 seconds West, 190.53 feet to a monument; THENCE along land now or formerly of Mattituck Farms Holding LLC and County of Suffolk the following two (2) comes and distances: North 37 degrees 00 minutes 00 seconds West, 1067.78 feet to a point; and North 37 degrees 15 minutes 20 seconds West, 402.38 feet to a point; THENCE North 52 degrees 44 minutes 40 seconds East, 155.59 feet to a point; THENCE North 37 degrees 27 minutes 20 seconds West, 517.31 feet to a point on the southerly side of Oregon Road; THElhlCE North 52 degrees 39 minutes 40 seconds East, 25.00 fe~t to the monument first above mentioned, the point or place of BEGINNING. Schedule B AGRICULTURAL STRUCTURE AREA WITHIN DEVELOPMENT RIGHTS EASEMENT 'FOR iNFORMATION ONLY ALL that certain plot, piece or parcel of[and, situate, lying and being at Cutoh0gue, in the Town of Southold, County of Suffolk and State of New York, being bounded and de'scribed as follows: BEGINNING at a monument located on the southerly side of Or6g'on Road distant 1029.15 · feet westerly from the corner formed by the intersection of the southerly side of Oregon Road with the westerly side of Depot Lane; RUNNING THENCE fi:om said monument along land now or formerly of Mattituck Farms Holdings LLC South 37 degrees 27 minutes 20 seconds East, 933.32 feet to a point; THENCE South 57 degrees 00 minutes 53 seconds West,' 182.55 feet to a point; THENCE North 37 degrees 15 minutes 20 seeonds West, 402.38 feet to a point; TIIENCE North 52 degrees 44 minutes 40. seconds East, 155.59 feet to a point; THENCE North 37 degrees 27 minutes 20 seconds West, 517.31 feet to the southerly side of Oregon Road; THENCE.North 52 degrees 39 minutes 40 seconds East, 25.00 feet to,he monument first aboye mentioned, the point or place of BEGINNING.