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Home My WebLink AboutL 12575 P 578SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument: EASEMENT N~mher of Pages: 19 Receipt N,~mher : 08-0120673 TRANSFER TAX NUMBER: 08-11764 District: 1000 Deed Amount: Recorded: At: LIBER: PAGE: Section: Block: 095.00 04.00 EXAMINED AND CHARGED AS FOLLOWS $0.00 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 Comm. Pres Fees Paid TRANSFER TAX NUMBER: 08-11764 THIS PAGE IS A PART OF THE INSTRUMENT THIS IS NOT A BILL Judith A. Pascale County Clerk, Suffolk County 12/22/2008 09:40:22 ~ D00012575 578 Lot: 006. 002 Exempt $20.00 NO $15.00 NO $0.00 NO $30.00 NO $0.00 NO $170.00 Number of pages TORRENS Serial # Certificate # · Prior CtL # Deed / Mortgage Instrument Deed / Mortgage Tax Stamp RECORDED 2008 Dec 22 09:40:22 Judith fl. Pascale CLERK OF SUFFOLK COUNTY L D00012575 P 578 OT~ 08-11764. Recording / Filing Stamps FEES Page / Filing Fee q ~..~' J Handliag 20~' ~ O0 TP-584 ~ · Notation EA-52 17 (County) Sub Total I _O ' EA-5217 (State) R.P. TS.A. Comm. of Ed. 5. O0 Affidavit Certified Copy NYS Surcharge 15. 00 Other 4 Dist. [Sect~)cf~'~OZ)lon ' Real Property Tax Service Agency Verification Sub Total Grand Total · 09500 0400 Satisfactions/Discharges/Releases List Property Owners Mailing Address RECORD & RETURN TO: 5 Moi'tgage Amt. 1. Ba~ic Tax 2. Additional Tax. Sub Total Spec./Assit. or Spec./Add. TOT MTG. TAX Dual Town ~ Dual County __ Held ~or Appomtmen[ ' ' Transfer Tax - ~) ~ __ Mansion Tax ' ~ __ The property covered by this mortgage is or will be itnproved by a one or two family dwelling 6nly. YES or NO If NO, see appropriate tax clause on page # of this instmmeut. Community P~eservatton Fund Considei'ation Amount CPF Tax Due $ · Improved Vacant Land TD TD TD 7 [ title Comp~_.an, y Information Co. Name '-~?¢..Z~/"Z- /l'-/(/l ~f~ ~ ~ ~ Title ~ ~ f~/¢/7 ,I This page forms part of the attached ~,d?~/?./.D?._tf~_Ptq-r' /~'4JqdC&, /L~2~S (SPECmY TYPE OF msaxu~m~r) ~~, ~ The pre~ses here~ is situated in G~/b F/~ S~OLK CO~, NEW YORK· Suffolk County Recording '& Endorsement Page TO made by: In the Township' of In the VILLAGE or HAMLET of BOXES 6 TI-ERU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING. (over) GRANT OF DEVELOPMENT RIGHTS EASEMENT THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on the o~) 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 11933, JEANEI-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 l1971(herein called "Grantee"). INTRODUCTION WHEREAS, Grantor is the owner in fe'e simple of certain 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 ! 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 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 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 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 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 Municipal Law") to acquire fee title or lesser interests in land, including development rights, easements, covenants, and other contractual rights which may be necessary or desirable for the preservation and retention of agricultural lands, open spaces and natural or scenic resources. 0.03 Purpose The parties recognize the 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 Recoqnition 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 ~[nternal 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 .lohn 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 EASEiVlENT 1.01 Type This instrument conveys a Development Rights Easement (herein called the "Easement"). This Easement shall consist of the limitations, agreements, covenants, use restrictions, rights, terms, and conditions recited herein. Reference to this "Easement" or its "provisions" shall include any and all of those limitations, covenants, use restrictions, rights, terms and conditions. 1.02 Definition "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 ~Zode" or the "Code") and including the production of crops, livestock and livestock products as defined in Section 301(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 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. 4 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. Struct[Jres 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, garb'age, 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. 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. Struct[Jres 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, garb'age, 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 IVlarkets 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 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. 3.09 Drainage The use of the Property for a leaching or sewage disposal field shall be prohibited. The use of the Property for a drainage basin or sump shall be prohibited, except in accordance with sound agricultural management practices and in order to control flooding or soil erosion on the Property. 6 3.10 Development Riqhts 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 l~mprovements. 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: Underground facilities used to supply utilities solely for' the use and enjoyment of the Property; (ii) 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. l~n 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 Indemnification Grantor shall indemnify and hold Grantee harmless for any liability, costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or any of its officers, employees, agents or independent contractors, all of which shall be reasonable in amount, except those due solely to acts of Grantee arising from injury due to the physical '9 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 Requirement If 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. ];n 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 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, l0 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, (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 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. Mailed notice to Grantor shall be addressed to Grantor's address as recited herein, or to such other address as Grantor may designate by notice in accordance with this Section 6.04. Mailed notice to Grantee shall be addressed to its principal office, recited herein, marked to the attention of the Supervisor and the Town Attorney, or to such other address as Grantee may designate by notice in accordance with this Section 6.04. Notice shall be deemed.given and received as of the date of its manual delivery or three (3) business days after the date of its mailing. 6.05 No Waiver Grantee's exercise of one remedy or relief under this ARTICLE SIX shall not have the effect of waiving or limiting any other remedy or relief, and the failure to exercise or 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 Extinquishment/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 MISCELLANEOUS 7.01 Entire Understanding This Easement contains the entire understanding between its parties concerning its subject matter. Any prior agreement between the parties concerning its subject matter shall be merged into this Easement and superseded by it. 7.02 Amendment This easement may be amended only with the written consent of Grantee and current 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. ]2 This Easement is made with the intention that it shall qualify as a Conservation Easement in perpetuity under Internal Revenue Code 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 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 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 Severability Any provision of this Easement restricting Grantor's activities, which is determined to be invalid or unenforceable by a court, shall not be invalidated. ]Instead, that provision shall be reduced or limited to whatever extent that court determines will make it enforceable and effective. Any other provision of this Easement that is determined to be invalid or unenforceable by a court shall be severed from the other provisions, which shall remain enforceable and effective. 7.05 Governing Law New York Law applicable to deeds to and easements on land located within New York shall govern this Easement in all respects, including validity, construction, interpretation, breach, violation and performance. 7.06 Tnterpretation 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. Jif 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. 13 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 Headinqs 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: CAROLYN BI~A,SKIEWI'CZ, Gran,~ RBARA BOKINA, Grantor SUSAN CHESHIRe,, Grantor .1EANa~-I-rE SAYRE, Grantor0 S~ACIA FICNER, Grantor ACKNOWLEDGED AND ACCEPTED: 14 TOWN OF $OUTHOLD, 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[EWTCZ 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. 01 FA4950146 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. PATRICIA L. FALLON Notary Public, State Of New York Qualified In Suffolk County Notary Public Commission Expires April 24, PATRIOIA L. FALLON Notary Public, State Of New York No. 01FA~Su ,1 ~ Qualified in Suf':, '~ County Commission Er-' .' ',ri! 24, STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: On this ~t0 day of November in the year 2008 before me, the undersigned, personally appeared SUSAN CHESHTRE 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 York No. 01FA4950146 (~)/~'~ OF NEW YORK ) Qualif ed In Suffotk county ~FOoRLK )SS: Commission Expire sA pr il24, .2.1~/ On this ~lgY of November in the year 2008 before me, the undersigned, person~t~y..appeared ]EANETTE SAYRE personally known to me or proved to meon the b'~s of satisfactory evidence to be the individual(s) whose name(s) is (are) subg"~bed% to the within instrume,nt and 15 title insurance company NEW YORK METRO 800-853-4803 212-922-1593 fax stewartnewyork.com SCHEDULE A - DESCRIPTION Title No.: ST08-01917 AMENDED 11/10/2008 DEVELOPMENT RIGHTS EASEMENT AND AGRICULTURAL STRUCTURE'AREA WITHIN DEVELOPMENT RIGHTS EASEMENT · ' ALL that certain plot, piece or parcel of land, situate, lying and being at Cutchogue, in the Town of Southold, County of Suffo.lk 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; RUNNING THENCE from said monument along land now or formerly of MattitUck 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) courses 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; THENCE North 52 degrees 39 minutes 40 seconds East, 25.00 feet 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 land, situate, lying and being at Cutehogue, 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 Oregbn 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 from 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 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 the southerly side of Oregon Road; THENCE North 52 degrees 39 minutes 40 seconds East, 25.00 feet to 'the monument first above mentioned, the point or place of BEGINNING. ~c/~owledged to me that he/she/they executed the same in h~s/her/the~r 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 Sulfotk County Commission Expires April 24, ~J/ On this ~ day of November in the year 2008 before me, the undersigned, personally appeared STACIA FJCNER 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 York No. 01FA4950146 Qualified In Suffolk County ~, ,, Commission Expires Apdl 24, ~Z~ll STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: On this-~O day of November in the year 2008 before me, the undersigned, personally appeared .lohn 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 Qualified In Suffotk County Commission Expires April 24, Z:/Town of Southold/Ficner/Ficner easement 10208cleanversion 16