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HomeMy WebLinkAboutL 12634 P 587SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument' EASEMENT N,~mher of Pages: 30 Receipt Number · 10-0095798 TRANSFER TAX NUMBER: 10- 0119 2 District: 1000 Deed Amount: Recorded: At: LIBER: PAGE' Section' Block' 086.00 01.00 EXAMINED AND CHARGED AS FOLLOWS $2,410,535.80 08/16/2010 01:19:27 DM D00012634 587 Lot: 010.012 Received the Following Fees For Above Instrument Exempt Page/Filing $150.00 NO Handling COE $5.00 NO NYS SRCHG TP-584 $5.00 NO Notation Cert.Copies $37.50 NO RPT Transfer tax $0.00 NO Comm. Pres Fees Paid TRANSFER TAX NUMBER: 10-01192 THIS PAGE IS A PART OF THE INSTRUMENT THiS IS NOT A BILL $20.00 $s5.oo $0.00 $30. oo $0.00 $262.50 Exempt NO NO NO NO NO JUDITH A. PASCALE County Clerk, Suffolk County Number of pages ( j _ _ _ This document will be public record. Please remove all Social Security Numbers prior to recording. Deed / Mortgage Instrument Page / Filing Fee Handling 20..0_0 TP-584 Notation EA-52 17 (County) EA-5217 (State) R.P.T.S .A ....... Com~. of Ed. 5. 00 Affidavit NYS Surcharge 15. 00 Other Deed / Mortgage Tax Stamp FEES RECORDED 2010 flug 16 01:19:27 PM JUDITH A. Pfl$CflL/ CLERK OF SUFFOLK COURT? L D00012654 P 587 bT# 10-0i192 Sub Total Sub Total L Dist./ff~) Sectic 10017836 looo oa6oo oloo Real Property Tax Service Agency Verification Satisfactions/Discharges/Releases List Property Owners Mailing Address RECORD & RETURN TO' P, o, ~ox 'i[ .... Reco[ding/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 Appoint ~ Transfer Tax 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 # ~ c~thi; ,~ti'irn~t- Community Preservation Fund ;onsideration Amount }PF Tax Due $ ? Improved Mail to: Judith A. Pascale, Suffolk County Clerk Title Com lnformati 310 Center Drive, Riverhead, NY 11901 www. suffolkcou ntyny, gov/clerk Title # Suffolk Coun Recordin & Endorsement Pa e This page forms pan of rite attached _~'____~_ .~_Z.. t~ 45~/~-a?~~ A'~~ ~83'~r;,/~~ (SPECWY TYPE OF ~S~U~~) .... ~/~ _ff~~/C ~~~ / ZK~ ~ ~ The preinises herein is situated in SUFFOLK COU~Y, ~W YORK. ,. TO BOXES 6 TI4R~[ 8 MIIST BE TYPED OR PRINTED IN BI,ACK INK ONr.Y PRIOR TO RECORDING OR FII JNG_ made by: Iii the TOWN of In the VILLAGE or HAMLET of GRA_NT OF DEVELOPMENT RIGHTS EASE_M__ENT THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on the ~--'~ day of August, 2010, at $outhold, New York. The parties are ZIP PECONIC WELLS LLC, c/o Lloyd P. Zuckerberg, 717 Fifth Avenue, 19~h floor, New York, NY 10022 (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" or "Local Grantee") and to the UNITED STATES OF AMERICA,~(herein called the "United States"), by and through the United States Department of Agriculture, Natural Resources Conservation Service, acting on behalf of the Commodity Credit Corporation (herein called the "United States"). The Local Grantee and the United States are collectively referred to as the "Grantees", The Grantors and Grantees are collectively referred to as the "Parties". ~ 'c/~ ~ ~ /) -,u~-~, '-/ v / ,S. .f 4 Un ',~ S4- 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 #~.9 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 prepared by Howard W. Young, Licensed Land Surveyor, for Young & Young, dated February 1, 2010, and last revised July 19, 2010 (a reduced 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 R-80 Zoning District of the Town of Southotd; 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, Natural Resources Conservation Service's (formerly the Soil Conservation Service) Soil Survey of Suffolk County, New York; and WHEREAS, The Federal Farm and Ranch Lands Protection Program's purpose is to purchase conservation easements 'on land with prime, unique, or other productive soil for the purpose of protecting topsoil from conversion to nonagricultural uses (:~6 U.S.C. 3838h and 3838i). Under the authority of the Farm and Ranch Lands Protection Program, the United States Department of Agriculture Natural Resources Conservation Service (hereinafter the "United States" or "NRCS") acting on behalf of the Commodity Credit Corporation has provided $990,000.00 to the Grantee for the acquisition of this Easement, entitling the United States to the rights identified herein. 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 sod crop in rotation with other specialty 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 :[989 as adopted by the Town Board, Town of Southold, and §272-a of the New York State 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 substantial 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 Two Million Four Hundred Ten Thousand Five Hundred Thirty-Five and 80/],00 DOLLARS ($2,410,535.80) and other good and valuable consideration paid to the Grantor, the receipt of which is hereby acknowledged, the Grantor does hereby grant, transfer, bargain, sell and convey to the Grantee a Development Rights Easement, in gross, which shall be binding upon and shall restrict the premises shown and designated as the Property herein, more particularly bounded and described on Schedule "A" annexed hereto and made a part of this instrument. TO HAVE AND TO HOLD said Development Rights Easement 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' 0._0_1 Grant_or'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, as set forth in Stewart Title ]:nsurance Company Title Report ST0-801136 and possesses the right to grant this easement. 0.02... G_.r_.a..n_.tee.'.s Status r 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 {}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 by limiting nonagricuftural uses of the Property. 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 ]:nternal Revenue Code ("]:RC") and Other federal statutes. 0.05 Documentation Grantee acknowledges by acceptance of this Development Rights Easement that present uses of the Property are compatible with the purposes of this Easement. ]:n 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 i~lentifying 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 Document includes, but need not be limited to, a survey dated February :~, 2010 last r. evised July 19, 2010 prepared by Howard W. Young, Licensed Land Surveyor, for Young & Young, a Phase :~ Environmental Site Assessment dated August 22, 2008 by Nelson, Pope & Voorhis, LLC, and a letter dated November 26, 2008 from the New York State Department of Environmental Conservation to Nelson, Pope & Voorhis, LLC. 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 Tn consideration of the previously recited facts, mutual promises, undertakings, and forbearances contained in this Development Rights Easement, the parties agree upon its provisions, intending to be bound by it. ARTICLE ONE THE EASEMENT 1.01 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 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 IVlunicipal 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 Section 301(2)(a)-(j) of the New York State Agriculture and Markets Law ("Agriculture and Harkets 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 tretlis, posts and wiring, farm irrigation systems, nursery mats, or fencing necessary for agricultural operations or to mark the boundaries of the Property, 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 .... D_u_ ration 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 incorporeaI 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 and provides Grantee with the right to administer, manage and enforce the Easement as provided herein. 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 and/or Grantee" when used herein shall include all of those persons or entities. ARTTC LE TWO SALE GRANTOR, for Two Million Four Hundred Ten Thousand Five Hundred Thirty-Five and 80/:L00 ($ 2,410,535.80) 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. ART];CLE TH RE E PROHIBITED ACTS From and after the date of this Easement, the following acts, uses and practices shall be prohibited forever upon or within the Property' 3.01 Structures No structures may be erected or constructed on the Property except as permitted by the Southold Town Land Preservation Committee ("Land Preservation Committee") and other applicable provisions of the Town Code and 1.02 and 4.06 of this Easement. 3.02 Excavation and Removal of Materials; Mining The excavating or filling of the Property, except as may be necessary to construct and maintain permitted structures and improvements on the Property or in connection with necessary drainage 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 Except as provided in this Section 3.03, 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 portion 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 and as otherwise required by applicable law, subdivide the property, provided that all resulting parcels contain at least ~0 acres of preserved agricultural land subject to a development rights easement. Notwithstanding this Section 3.03, upon the death of Grantor, the under'lying fee interest may be divided by conveyance of parts thereof to Grantor's executor, trustee, heirs or next of kin by wilt or operation of law. The United States Secretary of Agriculture shall be notified prior to such division or conveyance. 3.04 Dumping 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 on the Property, including fertilization, composting and crop removal. _3-_0.5___. _$_i.q_n s _ 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. Underground 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 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 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 farmstands, 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. Under no circumstances shall athletic fields, golf courses or ranges, commercial airstrips and helicopter pads, motorcross biking, or any other improvements or activity inconsistent with current or future agricultural production be permitted on the Property. 3.08 Soil and Water Any use or activity that causes or is likely to cause soil degradation or erosion or pollution of any surface or subsurface waters shall be prohibited. This prohibition shall not be construed as extending to agricultural operations and practices (including, without limitation, the use of agrochemicals such as fertilizers, pesticides, herbicides, and fungicides) that are in accordance with sound agricultural management practices of the N RCS. 3.09 Conservation Plan Ail agricultural operations on the Property shall be conducted in a manner consistent with a resource management system (RMS) Conservation Plan (the "Conservation Plan") prepared by the NRCS utilizing the standards and specifications of the NRCS Field Office Technical Guide, 7 CFR part ~_2 and approved by the Suffolk County Soil and Water Conservation District. All lands enrolled in the Farm and Ranch Lands Protection Program will be subject to the Conservation Plan. The resource management system for cropland, prescribed in the Conservation Plan for all cropland enrolled in FRPP will assure that selected conservation practice alternatives will prevent sheet and rill erosion from exceeding the current published soil loss tolerance level. Grantor shall give Grantee copies of the Conservation Plan upon request and advise Grantee of amendments thereto so as to enable Grantee to keep its records current. 3.10 Co_nsery. ation Compliance Provisions of the Conservation Plan As required by Section 1238]: of the Food Security Act of 1985, as amended, the Grantor, his/her heirs, successors, or assigns, shall conduct all agricultural operations on the Property in a manner consistent with a conservation plan (the "Conservation Plan") prepared in consultation with NRCS and approved by the Suffolk County Soil and Water Conservation District. This Conservation Plan shall be developed using the standards and specifications of the NRCS Field Office Technical Guide (FOTG) and 7 CFR Part 12 that are in effect on August 3, 20:[0. However, the Grantor may develop and implement a conservation plan that proposes a higher level of conservation and is consistent with the NRCS Field Office Technical Guide standards and specifications. NRCS shall have the right to enter upon the Property, with advance notice to the Grantor, in order to monitor compliance with the Conservation Plan. ]~n the event of noncompliance with the Conservation Plan, NRCS shall work with the Grantor to explore methods of compliance and give the Grantor a reasonable amount of time, not to exceed twelve months, to take corrective action. ~[f the Grantor does not comply with the Conservation Plan, NRC$ will inform Grantee of the Grantor's noncompliance. The Grantee shall take all reasonable steps (including efforts at securing voluntary compliance and, if necessary, appropriate legal action) to secure compliance with the Conservation Plan following written notification from NRCS that (a) there is a substantial, ongoing event or circumstance of non-compliance with the Conservation Plan, 10 (b) NRCS has worked with the Grantor to correct such noncompliance, and (c) Grantor has exhausted its appeal rights under applicable NRCS regulations. ]:f the NRC$ standards and specifications for highly erodible land are revised after the date of this Grant based on an Act of Congress, NRCS will work cooperatively with the Grantor to develop and implement a revised conservation plan. The provisions of this section apply to the highly erodible land conservation requirements of the Farm and Ranch Lands Protection Program and are not intended to affect any other natural resources conservation requirements to which the Grantor may be or become subject. 3.11 Dr. ai_.n__a_q._e. _ 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 the Conservation Plan and in order to control flooding or soil erosion on the Property. 3.12 Development Rights The use of the acreage of this Property for purposes of calculating lot yield on any other Property shall be prohibited. Grantor hereby grants to Grantee all existing development rights (and any further development rights that may be created through a rezoning of the Property) on the Property, except for the right to construct, maintain and replace 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 _G_RANTO R'S RTGHTS ......... _4_..._01 Ownership Subject to the provisions of ART]:CLE THREE, Grantor shall retain all other rights of ownership in the Property, some of which are more particularly described in this ART]~CLE FOUR. ]! 4.02 P o s,s. es_s i o n 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 wefl 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 farmstands and for educational or training programs related to agricultural production or activities. Grantor shall also have the right to use the Property for traditional private recreational uses, provided such recreational uses are conducted for the personal enjoyment of Grantor, are compatible with farming, and are otherwise consistent with and do not derogate from or defeat the Purpose of this Easement or other applicable law. These uses shall not be offered or provided for the commercial purposes, including the commercial gain of Grantor or others. 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 Agricultural Production and_.A_c~tj.vit_ie_s_ 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)-(j) of the Agriculture and Markets Law, 12 now or as such laws and/or Code may be amended. No future restriction 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. Grantor may offer "U-Pick" operations and/or the use of a corn maze to the general public, provided that such activities are conducted in conjunction with seasonal harvests, do not interfere with agricultural production and are otherwise consistent with and do not derogate from or defeat the Purpose of this Easement or other applicable laws. 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 herein and as permitted by ~he Town Code now or in ~he future on agricultural lands protected by a development rights easement or other instrument, including bu~ not limited to farmstands. 4.06 Structures A. Allowable ]:mprovements. Grantor shall have the right to erect and maintain the following improvements on the Property, as may be permitted by the Town Code and subject to the approval of the Town of $outhold Land Preservation Committee, provided the improvements are consistent with and do not derogate from or defeat the Purpose of this Easement or other applicable laws' (i) Underground facilities used to supply utilities solely for the use and enjoyment of the Property; (ii) New construction, including drainage improvement structures, provided such structures are necessary for or accessory to agricultural production; any new construction as permitted by this 4.06 is restricted to the Agricultural Structure Area shown on the Survey, described in Schedule "B" attached and made a part hereof; (ii) Renovation, maintenance and repairs of any existing structures or structures builL or permitted pursuant to this Section 4.06, provided the primary purpose of the structure remains agricultural; (iv) Lot coverage shall be limited to 2% of the Property. 13 , 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 ]:mprovements. Tn 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 N o_ti 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_.,_.0~ 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 and the United States Secretary of Agriculture of any conveyance of any interest in the Property, including the full name and mailing address of any transferee, and the individual principals thereof, under any such conveyance. The instrument of any such conveyance shall specifically 14 set forth that the interest thereby conveyed is subject to this Easement, without modification o~ amendment of the te~ms of this Easement, and shall incorporate this Easement by ~eference, 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...A__ss_e_s_sments 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 Liabilj_.t_y a_._n.d Indemnification Grantee and the United States have no obligations whatsoever, express or implied, relating to the use, maintenance or operation of the Property. Grantee's or the United States' exercise of, or failure to exercise, any right conferred by this Easement shall not be deemed to be management or control of the activities on the Property. Grantee shall not be liable to Grantor for injuries or death to persons or damage to property or any other harm in connection with Grantee's administration and/or enforcement of this Easement, unless such harm is due to the negligence of Grantee or its agents, in which case liability shall be apportioned accordingly. Grantor shall indemnify and hold harmless Grantee, and the United States of America, their employees, agents and assigns from any and all costs, claims or liability, including but not limited to reasonable attorneys fees arising from any personal injury, accidents, negligence or damage relating to the Property, or any claim thereof, unless due to the negligence of Grantee or its agents, in which case liability shall be apportioned accordingly. Grantor further agrees to indemnify and hold harmless Grantee, and the United State of America, their employees, agents and assigns from and against any and all claims, costs, expenses, fines, penalties, assessments, citations, personal injury or death, and the like arising from or out of the existence (actual or alleged) of any and all environmentally hazardous or toxic substances or materials whatsoever on or under the Property. _5_.0__2_..A Environment,al Warranty "Environmental Law" or "Environmental Laws" means any and all Federal, State, local or municipal taws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid waste, hazardous materials, worker and community right-to- know, hazard communication, noise, radioactive material, resource protection, subdivision, inland wetlands and watercourses, health protection and similar environmental health, safety, building and land use as may now or at any time hereafter be in effect. "Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic chemicals, radioactive materials, infectious materials and any other element, compound, mixture, solution or substance which may pose a present or potential hazard to human health or the environment. Grantor warrants that it is in compliance with and shall remain in compliance with, all applicable Environmental Laws. Grantor warrants that there are no notices by any governmental authority of any violation or alleged violation of, non-compliance or alleged non- compliance with or any liability under any Environmental Law relating to the operations or conditions of the Property. Grantor further warrants that it has no actual knowledge of a release or threatened release of any Hazardous Haterials on, at, beneath or from the Property, as such substances and wastes are defined by ]6 applicable Federal and State law. Moreover, Grantor hereby promises to defend and indemnify the Grantee and hold harmless and indemnify the United States against all litigation, claims, demands, penalties and damages, including reasonable attorneys' fees, arising from or connected with the release or threatened release of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Laws by Grantor or any other prior owner of the Property. Grantor's indemnification obligation shall not be affected by any authorizations provided by Grantee or the United States to Grantor with respect to the Property or any restoration activities carried out by Grantee at the Property; provided, however, that Grantee shall be responsible for any Hazardous Materials contributed after this date to the Property by Grantee. 5.03 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 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. ARTTCLE 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. Representatives of the United States Department of Agriculture shall also have the right to enter the Property for monitoring conservation plan implementation, upon prior notice to Grantor and not more frequently than annually without Grantor's consent. Grantee shall not have the right to enter upon the Property for any other purposes, except as provided in Section 5.03 and 6.03, or to permit access upon the Property by the public. 6, 02 ._.R_e__s_t_o rat i o n ]:n addition to Grantee's remedies under Section 5.03, 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 Rights of Grantee Grantor acknowledges and agrees that Grantee's remedies at law for any violation of this Easement may be inadequate. Therefore, in addition to, and not 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' 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, 18 (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 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. Grantor shall pay either directly or by reimbursement to Grantee and/or to the United States of America, all reasonable attorneys' fees, court costs and other expenses incurred by Grantee or the United States of America (herein called "Legal Expenses") in connection with any proceedings under this Section, as approved by the Court. Under this Grant of Development Rights Easement, the United States is granted the right of enforcement in order to protect the public interest. The Secretary of the United States Department of Agriculture (the Secretary) or his or her assigns, on behalf of the United States, may exercise this right of enforcement under any authority available under State or Federal Law if the Town of Southold fails to enforce any of the terms of this instrument, as determined in the sole discretion of the Secretary. 6.04 Notice All notices required by this Easement must be written. Notices shall be delivered by hand or by registered or certified mail, return receipt requested, with sufficient prepaid postage affixed and with return receipts requested. Hailed 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. Hailed notice to Grantee shall be addressed to its principal office, recited herein, marked to the attention of the Supervisor and the Town 19 Attorney, or to such other address as Grantee may designate by notice in accordance with this Section 6.04. Notice shall be deemed given and received as of the date of its manual delivery or three business days after the date of its mailing. Where notice is required to the United States of America or to the NRCS, such notice shall be delivered to U.S. Department of Agriculture, NRCS, c/o Commodity Credit Corporation, State Conservationist, The Galleries of Syracuse, 441 South Salina Street, Suite 354, Syracuse, New York 13202-2450. Notice to the N RCS shall be deemed notice to the United States of America. 6.05 No Waiver Grantee's exercise of one remedy or relief under this ART~[CLE 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 Extinguishment of Easement/Condemnation At the mutual request of Grantor and Grantee and United States of America, a court with jurisdiction may, if it determines that conditions surrounding the Property have changed so much that it becomes impossible to fulfill the Purpose of this Easement described in Section 0.03, extinguish or modify this Easement in accordance with applicable law. The mere cessation of farming on the Property shall not be construed to be grounds ¢or extinguishment o¢ this Easement. If at any time the Property or any portion thereof shall be taken or condemned by eminent domain approved in advance by the United States Department of Agriculture NRCS, 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. 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 20 development rights transferred hereby, in accordance with Section 7. :~2_ herein. ART! C LES EVE N 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 shaII 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 with the approval of the Secretary of the United States Department of Agriculture and in accordance with any applicable State and local laws. Any such amendment shall be consistent with the Purpose of this Easement and shall comply with the Town Code and any regulations promulgated thereunder. Any such amendment shall be duly recorded. This Easement is made with the intention that it shall qualify as a Conservation Easement in perpetuity under Internal Revenue Code F3170(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§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 2! the limitations placed upon the alienation of those property rights or interests which were acquired by the Town prior to any such amendment. The United States of America shall also consent to any such alienation. ]:n addition to the limitations set forth above, Grantee shall have the right, subject to the provisions of Section 7.11 (Contingent Rights of United States of America) herein, to transfer all or part of this Easement to any public agency, or private non-governmental organization, that at the time of transfer is a "qualified organization" under §170(h) of the ]:nternal Revenue Code, provided that transferee expressly agrees to assume the responsibility imposed on the Grantee by this Easement. Any easement transfer must be approved by the Grantor or any subsequent owner, and the United States Department of Agriculture, NRCS. :if the Grantee ever ceases to exist, a court of competent jurisdiction may transfer this Easement to another qualified public agency that agrees to assume the responsibilities imposed by this Easement. The United States Department of Agriculture, NRCS, will be notified in writing in advance of such transfer. The NRCS State Office must approve the choice of any new non-governmental organization in advance of any transfer of this Easement. 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. ]:nstead, that provision shall be reduced or limited to whatever extent that court determines will make it enforceable and effective. Any other provision of this Easement that is determined to be invalid or unenforceable by a court shall be severed from the other provisions, which shall remain enforceable and effective. 7.05, Governinq Law New York law applicable to deeds to and easements on land located within New York shall govern this Easement in all respects, including validity, construction, interpretation, breach, violation and performance. 7.06 ]:nterpretation 22 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. ~[f 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 alt 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 Recording Grantee shall record this Easement in the land records of the office of the Clerk of the County of Suffotk, State of New York. 7.:~0 He.a..dings The headings, titles and subtitles herein have been inserted solely for convenient reference, and shall be ignored in its construction. 23 7.1_1 Contingent Rights of the United States of America In the event that Grantee fails to enforce any of the terms of this Easement, as determined in the sole discretion of the Secretary of the U.S. Department of Agriculture, the said Secretary of Agriculture and his or her successor and assigns shall have the right to enforce the terms of this Easement through any and all authorities available under Federal or State law. In the event that Grantee attempts to terminate, transfer or otherwise divest itself of any rights, title or interest of this Easement without the prior consent of said Secretary and without payment of consideration to the United States as provided herein, then, at the option of such Secretary, all right, title and interest in this Easement shall become vested in the United States of America. 7.12 _. _P_ r_o__c _e_e_d. _s_ The grant of this Easement gives rise to a property right, immediately vested in Grantee, which, for purposes of calculating proceeds from a sale or other disposition of the Property as contemplated under Section 6.06 {Extinguishment of Easement/Condemnation), shall have a value equal to a percentage of the value of the Property unencumbered by this Easement (the "Proportionate Share"). The Proportionate Share is determined by dividing the value of this Easement, calculated as of the date hereof, by the unencumbered value of the Property, as reflected in an appraisal obtained by Grantee dated May 18, 2010, in which the effective date of valuation is February 11, 2010. The Proportionate Share is 30.53 percent. The Proportionate Share shall remain constant (subject to reasonable adjustment to the extent permissible under Section 170(h) of the Internal Revenue Code for any improvements which may hereafter be made on the Property). if any part or all of this Easement is extinguished pursuant to Section 6.06, the proportional shares of the Grantee and the United States of America are 58.93 percent, and 41.07 percent, respectively, 24 representing the proportion each party contributed to the purchase price of the easement. IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted a~nd received this Deed of Easement on the day and year set forth above. ACKNOWLEDGED AND ACCEPTED' ZIP PECONiC WELLS LLC, Grantor BY' Lloy~l P. Zuckerberg, Managing Hember ACKNOWLEDGED AND ACCEPTED' THE UNITES STATES OF AMERICA BY' . Conservationist TOWN OF SOU BY' Scott A. Russell Supervisor Acceptance of Property Interest by the Natural Resources Conservation Service The Natural Resources Conservation Service, an agency of the United States Government, hereby accepts and approves the foregoing conservation easement deed, and the rights conveyed therein, on beh~a!f 0f the United States of America. A~t~r~F~. Boozer stm~e~ of New Yor~. ) Co u n~"~'y~ )~, SS' 2S On the X~~' day of July in the year 20::[0 before me, the undersigned, personally appeared Astor F. Boozer, personally known to me or p~oved to me on the basi~of satisfactory evidence to be the individual (s) whose name~subscribed to the within instrument and acJ~nowledg~d tO me that~d~she/they executed the same in ..~~~}her/their capacity (ies~, ~nd that by/~her/their signature(s) on the :~nstrument, the individual(s), or the person upon behalf of which the :z'~~'i.~J~ ~~,] ~M]]E~j~L~FI~;SO~d, executed the instrument. Notary Public No. 01ST5089252 County of Madison, State of N.¥~~ae(c~~i~:e"~(i~di~i~d'~'al";caking acknowledgement m ssion F kes: D ccc m[}eTt , ECOUN!_...-.-.-.._-.-. ,.YORK) !- :~um .r~L.r~) SS' On this~O day of G'~"~'~ in the year 2010 before me, the undersigned, personally appeared Lloyd P. Zuckerberg personally known to me or proved to me on the basis of satisfactory evidence to be the individual~g~whose name(g~ is C~:~)~subscribed to the within instrument and acknowledged to me that he/.s~'-/~'-'' , ,~, .... ,-executed the same in his/~ capacity~-:~-)7 and that by signature~-)-on the instrument, the individual(-~, or the person upon behalf of which th~ individualf~ acted executed the instrument 0ualifi~ in STATE OF NEW YORK) .... ...".;:~, COUNTY OF SUFFOLK) SS' , On this u~--~ day of,4~~s~n the year 2010 before me, the undersigned, personally appeared Scott A. Russell, personally know. n 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. r ~ Notary Public PATRICIA L FALLON Notary Public, State O! New Yo~ No, 01 FA4950146 Qualified In Suffolk County Commission Expires April 24~ ~d'/,/ 26 title insurance company "°"" SCHEDULE A - DESCRIFrlON NEW YORK METRO 212-922-1593 fax stewartnewyork,com Title No.: ST0-801136 AMENDED 7128/2010 TOTA .L_AGmC.ULTUE~L EASE_ .ME. NT,_.AREA AI~ that certain plot, piece or parcel of land, situate, lying and being in the Town of Southold, at Peconic, County of Suffolk and State of New York, as shown on a survey made by Young & Young, dated 2/1/2010 and last revised 7t19/2010 for the Town of Southold known as Lot 3 of Property of Zip Peconic Wells LLC; said tot being more particularly bounded and described as follows: BEGINNING at thc comer formed by the intersection of thc southeasterly side of Main Road (N.Y.S. Rte. 25) and the southwesterly side of Wells Road; RUNNING THENCE from said beginning along thc southwesterly side of Wells Road thc following two (2) courses and distances: , (~) (~) South 33 degrees 18 minutes 25 seconds East, 871.83 feet; South 08 degrees 03 minutes 45 seconds East, 547.75 feet; THENCE South 81 degrees 56 minutes 15 seconds West, 56.00 feet; THENCE South 08 degxees 03 minutes 45 seconds East, 399.92 feet to land now or formerly of Zip Peconic Wells LLC; THENCE South 59 degrees 03 minutes 45 seconds West, 476.06 feet to land now or formerly of Pelligrini Peconic LLC; THENCE North 34 degrees 40 minutes 26 seconds West, 1,329.59 feet to a monument set on the southerly side of Main Road (N.Y.S. Rte. 25); THENCE from said monument along the southeasterly side of Main Road (N.Y.S. Rte. 25) the following two (2) courses and distances: (~) (2) North 35 degrees 20 minutes 45 seconds East, 820.12 feet; North 40 degrees 28 minutes 45 seconds East, 206.55 feet to the comer first above mentioned, the point or place of BEGINNING. · SCI~DULE B- DESCRIPTION Title No.: ST0-801136 AGRICULTURAL STR_U_C.T....URE AREA__D_.ESCRIFrION._-_. ALL that certain plot, piece or parcel of land, situate, lying and being in the Town of Southold, at Peconic, County of Suffolk and State of New York, as shown on a survey made by Young & Young, dated 2/1/2010 and last revised 7/19/2010 for the Town of Southotd known as part of Lot 3 of Property of Zip Peeonic Wells LLC; said part of lot being more particularly bounded.and described as follows: BEG~G at a point on the southeasterly side of Main Road (N.Y.S. Rte. 25) distant the followi.ng two (2) courses and distances southwesterly from the comer formed by the intersection of the southeasterly side of Main Road (N.Y.S. Rte. 25) and the southwesterly side of Wells Road: , (1) South 40 degrees 28 minutes 45 seconds West, 206.55 feet; (2) South 35 degrees 20 minutes 45 seconds West, 607.31 feet to the true point of beginning; RUNNING THENCE South 34 degrees 40 minutes 26 seconds East, 254.16 feet; ~CE South 55 degrees 19 minutes 34 seconds West, 200.00 feet to land now or formerly of Petlegrini Peconic LLC; THENCE North 34 degrees 40 minutes 26 seconds West, 181.44 feet to a monument set on the southeasterly side of Main Road (N.Y.S. Rte. 25); THENCE from said monument along said southeasterly side of Main Road (N.Y.S. Rte. 25) North 35 degrees 20 minutes 45 seconds East, 212.81 feet to the point or place of BEGINNING. / ,.