HomeMy WebLinkAboutL 12603 P 145SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
T~pe of Instrument: EASEMENT
N~mBer of Pages: 25
Receipt N~m~er : 09-0118936
TRANSFER TAX NUMBER: 09-06190
District:
1000
Deed Amount:
Recorded:
At:
LIBER:
PAGE:
Section: Block:
120.00 03.00
EXAMINED AND CHARGED AS FOLLOWS
$1,082,659.50
Received the Following Fees For Above Instrument
Exempt
Page/Filing $125.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert. Copies $16.25 NO RPT
Transfer tax $0.00 NO Comm. Pres
Fees Paid
TRANSFER TAX NUMBER:
09-06190
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
Judith A. Pascale
County Clerk, Suffolk County
~0/15/2009
12:37:38 PM
D00012603
145
Lot:
011.015
Exempt
$20.00 NO
$15.00 NO
$0.00 NO
$50.00 NO
$0.00 NO
$236.25
Number of pages
This document will be public
record. Please remove all
Social Security Numbers
prior to recording.
Deed / Mortgage Instrument
31
Page/Filing Fee /
Handling., c>~. 00
Notation
EA-52 17 (County)
EA-5217 (State)
R.P.T.S.A.
Comm. of Ed.
~~P~
NYS Surcharge
Other
5. O0
15. O0
4 I Dist./d
Real Propert
Tax Service
Agency
Verification
6
RECORDED
2009 Oct 15 12:37:38 PH
Judith A. Pa~cale
CLERK OF
SUFFOLK COUNTY
L D00012603
P 145
DT# 09-06190
Deed / Mortgage Tax Stamp
FEES
Sub Total /~-~D --
Sub Total ~ & ~''
Grand Total
1000 12000 0300 011015
1000 12000 0300 011016
Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO:
P.o , 8~ x
//qTi
Recording / Filing Stamps
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec./Assit.
or
Spec./Add.
TOT. MTG. TAX
Dual Town __ Dual County __
Held for Appointment
Tr s erTax
Mansion Tax
The property covered by this mortgage is
or will be improved by a one or two
family dwelling only.
/ YES or NO
If NO, see appropriate tax clause on
page// of this insWIn5/~j 19
/
5 Community Preservation Fund
Consideration Amount $
CPF Tax Due /'*
y Imprdv~d /
Mail to: Judith A. Pascale, Suffolk County Clerk 71 Title Company Information
310 Center Drive, Riverhead, NY 11901 Co. Name
www. suffolkcou ntyny, g0v/clerk Tide #
Suffolk County Recording & Endorsement Page
This page forms part of the attached ~A~A/7' t~" ~'q,/~.-O/a/JT&"7,P~'/~/6IAZ~ ~'f,q~O'OE'-,Ar2-' made by:
(SPECIFY TYPE OF INSTRUMENT)
TO
The premises herein is situated in
SUFFOLK COUNTY, NEW YORK.
In the TOWN of
In the VILLAGE
or HAMLET of
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on
the 31st day of August, 2009 at Southold, New York. The parties are
P & E, LLC with offices at 5645 Aldrich Lane, Laurel, NY 11948, c/o
Peter Harbes, Managing Member (herein called "Grantor"), and the
TOWN OF SOUTHOLD, a municipal corporation, having its principal
office at 53095 Main Road, P.O. Box 1179, Southold, New York 11971
(herein called "Grantee").
INTRODUCTION
WHEREAS, Grantor is the owner in fee simple of certain real
property located in the Town of Southold, Suffolk County, New York,
identified as part of SCTM #1000-120-3-11.11, more fully described in
SCHEDULE "A" attached hereto and made a part hereof and
hereinafter referred to as the "Property" and shown on the survey
dated August 24, 2009 and last revised August 27, 2009 prepared by
Young & Young, Howard W. Young, Land Surveyor (a copy of which is
attached hereto and made a part hereof and hereinafter referred to as
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 II 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 for row 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 §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 ONE MILLION ETGHTY-
TWO THOUSAND SIX HUNDRED FIFTY-NJ:NE THOUSAND AND 50/100
DOLLARS ($1,082,659.50) 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 itself, and for and on behalf of its legal
representatives, successors and assigns, hereby covenants and agrees
as follows:
2
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, except as set forth in Stewart Title ~'nsurance
Company Title No. ST09-04855.
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 and is authorized under §64 of Town Law and §247
of the New York State 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
§247. Similar recognition by the federal government includes §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
3
purposes of this Easement. lin 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 August 24, 2009 and last
revised August 27, 2009 prepared by Young & Young, Howard W.
Young, Land Surveyor, a 2004 aerial photograph of the Property, the
Phase ! Environmental Site Assessment prepared July 24, 2009 by
Nelson, Pope & Voorhis, LLC, a Daily Job Report dated August 24,
2009 from Miller Environmental Group, !nc. and "Private Non-
Hazardous Document of Cargo" No. :10:1343 from Miller Environmental
Group, !nc. as Transporter, Town of Southold Planning Board
resolution adopted August 10, 2009 regarding sketch Plan approval for
Grantor's proposed Conservation Subdivision for all of SCTM #1000-
:120-3-1:1. :1:1, which includes the Property, and Town Board resolution
adopted August 25, 2009 granting approval for the establishment of
an Open Development Area, all 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.
ART!CLE ONE
THE EASEMENT
1.01 Type
4
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 Definitions
"Development Rights" shall mean the permanent legal interest
and right to prohibit or restrict the use of the Property for uses or
purposes consistent with the terms of this Easement, including
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 "Code") and
including the production of crops, livestock and livestock products as
defined in §301(2)(a)-(j) of the New York State Agriculture and
Markets Law ("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 law and/or Code.
"Improvement" shall mean any addition to raw land, such as
structures, fences, wells or drainage.
"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.
"Structure" shall mean 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, the underground
utilities presently existing and referenced in an easement recorded
simultaneously herewith and described in Section 4.06 herein or
fencing used in connection with bonafide agricultural production,
including without limitation fencing to keep out predator animals,
including deer. Approvals for those items listed in the preceding
sentence shall be as required by applicable provisions of the Town
Code.
1.03 Duration
5
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 Grantor and/or Grantee shall also be deemed granted to
each and every one of its subsequent agents, successors, and assigns,
and the word "Grantor" or "Grantee" when used herein shall include all
of those persons or entities.
ARTICLE TWO
SALE
GRANTOR, for ONE MILLION EIGHTY-TWO THOUSAND SIX
HUNDRED FIFTY-NINE THOUSAND AND 50/100 DOLLARS
($1,082,659.50) and such other good and valuable consideration,
hereby grant, release, and convey 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
Except as provided herein, no structures may be erected or
constructed on the Property except as permitted by the Southold Town
Land Preservation Committee ("Land Preservation Committee") and
other applicable provisions of the Town Code and 1.02 and 4.06 of this
Easement.
6
3.02 Excavation and Removal of IVlaterials; Mininq
The excavating, regrading, scraping or filling of the Property
shall be prohibited, without the prior written consent of Grantee,
including but not limited to from the Land Preservation Committee.
This 3.02 does not prohibit the grading of the Property for the
construction of the greenhouses, provided Grantor has obtained all
necessary approvals for such grading and the erection of greenhouses,
including but not limited to from the Land Preservation Committee,
and such other approvals as the Town Code may require.
Mineral exploitation, and extraction of any mineral, including but
not limited to soil, gravel, sand and hydrocarbons, by any method,
surface or subsurface, is prohibited.
The removal of topsoil, sand, or other materials from the
Property is prohibited, nor shall the topography of the Property be
changed, except in connection with normal agricultural/horticultural
activities, all of which shall require the prior written consent of
Grantee, including but not limited to from the Land Preservation
Committee.
3.03 Subdivision
Except as provided herein, the Property may not be further
subdivided pursuant to Town Law §§265, 276 or 277 or § 335 of the
Real Property Law, as they may be amended, or any other applicable
State or local law. "Subdivision" shall include the division of the
Property from which the development rights are acquired into two or
more parcels, in whole or in part.
Grantor may, subject to approval by the Planning Board of the
Town of Southold ("Planning Board"), the Land Preservation
Committee and as otherwise required by applicable law, subdivide the
Property, provided that all resulting parcels contain at least lO acres of
preserved land subject to a development rights easement or other
agricultural conservation instrument.
Notwithstanding this provision, upon the death of Grantor, the
underlying fee interest may be divided by conveyance of parts thereof
to Grantor's executor, trustee, heirs or next of kin by will or operation
of law.
7
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 $iqns
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,
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. The
Property may not be used for the creation or placement of utilities to
service any other properties, except for underground utilities presently
existing, and referenced in an easement recorded simultaneously
herewith in the Office of the Suffolk County Clerk and described in
Section 4.06 herein.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, 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 §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)-(j) of the Agriculture and
8
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 by the Town Code now or in the future on
agricultural lands protected by a development rights easement or
other instrument, including but not limited to farm stands if they are
permitted in the future, shall not be considered a commercial use. No
improvements, uses or activities inconsistent with current 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.
3.10 Development Riqhts
Grantor and Grantee acknowledge that Grantor received Sketch
Plan approval from the Planning Board on August 10, 2009 for a
Conservation Subdivision, as shown on a Sketch Plat prepared by
Howard W. Young, L.S, (the "Sketch Plat") which includes 74,998
square feet of clustered conservation open space (the "clustered
conservation open space") located within the Property, which shall
remain unbuildable. Except for the clustered conservation open space
described in this Section 3.10, and described in the Planning Board
Sketch Plan approval dated August 10, 2009, the use of the acreage of
this Property for purposes of calculating lot yield on any other Property
shall be prohibited.
Except as provided above, Grantor hereby grants to Grantee all
other existing development rights (and any further development rights
that may be created through a rezoning of the Property) on the
9
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 or elsewhere in this Easement, 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.
ARTTCLE 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. Grantor
shall have the right to use the Property for uses, improvements and
activities permitted by the Town Code, now or in the future, on
agricultural lands protected by a development rights easement or
other instrument, including but not limited to farm stands if they are
permitted in the future.
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.
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4.05 Aqricultural Production and Activities
Grantor shall have the right to engage in all types of agricultural
production as the term is referenced in §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
§301(2)(a)-(j) 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 Law
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 §4.06 herein and as
permitted by the Town Code now or in the future on agricultural lands
protected by a development rights easement or other agricultural
conservation instrument, including but not limited to farm stands if
they are permitted in the future.
4.06 Structures and Tmprovements
A. Allowable Improvements. Grantor shall have the right to
erect and maintain the following structures and improvements on the
Property, as they may be permitted by the Town Code now or as same
may be amended and subject to the approval of the Land Preservation
Committee, provided the structures are consistent with and do not
derogate from or defeat the Purpose of this Easement or other
applicable laws:
(i) Underground facilities used to supply utilities
solely for the use and enjoyment of the Property;
(ii) Underground utilities presently existing and
referenced in an easement recorded simultaneously
herewith, said easement area shown on the Survey;
(iii) Construction of new structures, provided
such structures are necessary for and accessory to
agricultural production;
(iv)
Renovation, maintenance and repairs of any
11
existing structures and improvements or structures and
improvements built or permitted pursuant to this
Section 4.06, provided the primary purpose of the
structure remains agricultural;
(v) Any improvement excluded from the
definition of "Structure" in Section :[.02;
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 new construction is permitted outside of the area described in
paragraph 4.06A(ii) above.
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.
Grantors 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 Tmprovements. In the event of damage
resulting from casualty loss to an extent which renders repair of any
existing improvements or improvements built or permitted pursuant to
this Section 4.06 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
12
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 forth the date, office, liber and page of the
recording hereof. The failure of any such instrument to comply with
the provisions hereof shall not affect Grantee's 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. 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, 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
13
assessments upon it or resulting from this Easement, all of which shall
be considered Grantor's obligations.
5.03 Third Part,/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; 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 two (2) 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, including the Land
Preservation Committee, to maintain or restore the Property to the
condition in which it existed on the date of this Easement, as
evidenced by the documentation referred to in Section 0.05, in order
to protect the environmental, natural, scenic and agricultural values of
the Property. In the event Grantor fails to comply with the provisions
of this section after reasonable written 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, and to recover the costs of such
implementation from Grantor, as provided in Section 6.03.
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
14
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.
6.02 Restoration
In addition to Grantee's remedies under Section 5.04, 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 as a 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' written 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
15
To enforce any term, provision, covenant or obligation in
this Easement 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 be accomplished
within 10 days.
6.04 Notice
All notices required by this Easement must be written. Notices
shall be delivered by hand or registered or certified mail, return receipt
requested, 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 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.
Extinquishment/Condemnation
At the mutual request of Grantor and Grantee, a court with
jurisdiction may, if it determines that conditions surrounding the
16
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. The mere
cessation of farming on the Property shall not be construed to be
grounds for extinguishment 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, its 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 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 the
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 Grantors and in accordance with all applicable
State and local laws. Any such amendment shall be consistent with
the Town Code and any regulations promulgated thereunder and with
the Purpose of this Easement, 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
§170(h). The parties agree to amend the provisions of this Easement
if such amendment shall be necessary, to entitle Grantors to meet the
17
requirements of §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 the State of 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
18
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 affect 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 their right to use the Property, except as
otherwise recited herein, be construed at all times and by all parties to
effectuate its purposes.
7.07 Public Access
Nothing contained in this Easement grants, nor shall 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 only 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.
lIN W][TNESS WHEREOF, Grantor has executed and delivered and
Grantee has accepted and received this Grant of Development Rights
Easement on the day and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
By: Peter Harbes, Managing Member
19
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUTHOLD, Grantee
Scott A. Russell
Supervisor
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
On this,~/-~day of ,~4/~sr in the year 2009 before me, the undersigned,
personally appeared SCO~-I' A. RUSSELL 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 'fork
No. 01FA4950146
Qua fled In Suffolk County
Commission Exp res April 24,
On this day of in the year 2009 before me, the undersigned,
personally appeared PETER HARBES 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 April 24,
20
ALTA ?WNER'~ POLI~Y
SCHEDULE A DESCRIPTION
File No.: ST09-04855 Policy No.: O-8911-487781
DESCRIPTION OF DEVELOPMENT RIGHTS EASEMENT AREA TO BE INSURED:
P,I .I. that certain plot, piece or parcel of land, situate, lying and being at Laurel, Town of Southold, County of Suffolk
and State of New York, being more particularly bounded and described as follows:
BEGINNING at the point on the westerly line of Aldrich Lane distant the following five (5) eours~ and distances from
the intersection of the southerly side of Sound Avenue and the westerly side of Aldrich Lane:
South 32 degrees 10 minutes 40 seconds East, 750.62 feet;
South 36 degrees 12 minutes 10 seconds East, 206.05 feet;
South 40 degrees 42 minutes I0 seconds East, 46.93 feet;
South 38 degrees 12 minutes 10 seconds East, 61.81 feet;
South 35 degrees 12 minutes 10 seconds East, 135.00 feet to a rebar and cap set, the tree point or place of beginning;
RUNNING THENCE along said westerly side of Aldrich Lane South 35 degrees 12 minutes 10 seconds East, 50.09 feet
to a set monument;
THENCE South 58 degrees 14 minutes 40 seconds West, 278.94 feet;
THENCE South 31 degrees 42 minutes 10 seconds East, 580.01 feet to land now or formerly of EWH, LLC;
THENCE along said land South 58 degrees 14 minutes 40 seconds West, 1238.18 feet to land now or formerly of Big "E"
Farm, Inc.;
THENCE along said land North 33 degrees 01 minutes 50 seconds West, 642.00 feet to a set monm'e~nt at the land now
or formerly of MDH Limited Liability Company;
THENCE along said land North 60 degrees 14 minutes 10 seconds East, 340.47 feet to land now or formerly of Patricia
DiVello;
THENCE along said land and continuing along land now or formerly of KKP, LLC and other lands now or formerly of
Patricia DiVello, North 58 degrees 14 minutes 40 seconds East, 1188.66 feet to the westerly side of Aldrich Lane, the
poim or place of BEGINNING.
FOR INFORMATION: DESCRIPTION OF DE~LOP~ ~GH~ E~ A~ ~ ~ER~D
A~:
~ ~at ~in plo~ pi~e or p~el of l~d, sima~, l~ng ~d ~ing at ~1, To~ of Sou~ol~ Coun~ of Suffo~
and S~ of New Yo~ ~ing mo~ p~cul~ly ~und~ and descfi~ ~ follows:
BEG~G at ~e ~int on ~e wes~rly ~ne of Al~ch ~e dis~t ~e follo~ng five (5) co~s ~d ~s~nces f~m
· e intonation of ~e sou~edy side of Sound Avenue and ~e wesmdy si& of Al~ch ~ne:
Sou~ 32 de~s 10 ~nums ~ s~onds ~g 750.62 f~t;
Sou~ 36 de~s 12 ~nutes 10 s~onds ~t, 2~.05 f~t;
Sou~ ~ de~s 42 ~nums 10 seconds ~sL ~.93 f~t;
Sou& 38 de~s 12 ~nutes 10 s~onds ~s~ 61.81 f~t;
Sou~ 35 de~s 12 ~nutes 10 s~onds ~ 135.~ f~t to a ~b~ ~d cap se~ ~e ~e ~int or pla~ of ~nning;
R~G ~CE flong ~d wesmrly side of ~ch ~ Sou~ 35 de~s 12 ~nu~s 10 ~onds ~sg 149.39
f~t;
T~NCE confinu~g flong s~d westerly side of ~eh ~e Sou~ 31 de~s 42 ~nu~s 10 ~onds ~t, 480.88 f~t
to l~d now or foxily of E~, LLC;
~NCE Sou~ 58 de~s 14 ~nu~s ~ ~onds West, 1523.20 f~t to land now or fo~rly of Big '~" F~, ~c.;
T~NCE flong s~d l~d No~ 33 ~ 01 ~nutes 50 ~onds W~ ~2.~ f~t m a ~ monu~nt at ~e l~d now
or fo~erly of ~H Li~ Liabili~ Comfy;
T~NCE along said land No~ 60 deg~es 14 ~nums 10 s~onds ~L 3~.47 f~t to l~d now or fo~erly of Pa~cia
DiVello;
T~NCE along said land ~d continuing along land now or fo~rly of ~, ~ ~d o~er lan~ now or fo~efly of
Pa~cia DiVello, No~ 58 &~s 14 ~nutes 40 s~onds ~t, 1188.66 f~t to the westerly si& of ~ch ~ne, ~e
~im or pla~ of BEG~G.
ALTA OV~IER'$ ~OLICY (6/17/06)
FOR INFORMATION: DESCRIFrlON OF RESERVED AREA:
ALL that certain plot, piece or parcel of land, situate, lying and being at Laurel, Town of Southold, County of Suffolk
and State of New York, being more particularly bounded and described as follows:
BEGINNING at the point on the westerly line of Aldrich Lane distant the following five (5) courses and distances from
the intersection of the southerly side of Sound Avenue and the westerly side of Aldricli Lane:
South 32 degrees 10 minutes 40 seconds East, 750.62 feet;
South 36 degrees 12 minutes 10 seconds East, 206.05 feet;
South 40 degrees 42 minutes 10 seconds East, 46.93 feet;
South 38 degrees 12 minutes 10 seconds East, 61.81 feet;
South 35 degrees 12 minutes 10 seconds East, 135.00 feet to a rebar and cap set;
South 35 degrees 12 minutes 10 seconds East, 50.09 feet to a set monument, the true point or place of beginuing;
RUNNING THENCE South 58 degrees 14 minutes 40 seconds West, 278.94 feet;
THENCE South 31 degrees 42 minutes 10 seconds East, 580.01 feet to land now or formerly of EWH, LLC;
THENCE along said land North 58 degrees 14 minutes 40 seconds East, 285.02 feet to the westerly side of Aldrich Lane;
THENCE North 31 degrees 42 minutes 10 seconds West, 480.88 feet along the westerly side of Aldrich Lane;
THENCE continuing along the westerly side of Aldrich Lane North 35 degrees 12 minutes 10 seconds West, 99.30 feet to
the point or place of BEGINNING.
./