HomeMy WebLinkAboutL 12646 P 798SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
~ of Instrument: EAS~
Number of Pages: 29
Receipt Number : 10-0148160
TRANSFER TAX NUMBER: 10-10870
District:
1000
Deed Amount:
Recorded
At:
LIBER:
PAGE:
Section: Block:
084.00 01,00
~ AND C E~GED ~ FOLLOWS
$1,733,660.50
12/23/20:[0
11:50:16 AM
D00012646
798
Lot:
011.002
Received the Following Fees For Above Instrument
Exempt
Page/Filing $145.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert. Copies $18.85 NO RPT
Transfer tax $0.00 NO Comm. P=es
Fees Paid
TRANSFER TAX NUMBER: 10-10870
THIS PAGE KS A PART OF THE INSTRUMENT
THIS KS NOT A BILL
$20.00
$~5.00
$o.oo
~so.oo
$o.oo
$2sa.ss
Exempt
NO
NO
NO
NO
NO
JUDITH A. PASCJtLE
County Clerk, Suffolk County
Numb~ of p~ ,
This document will be public
reuo~d. Please remove all
Soctal4~murity Numbers
prior;tO recording.
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Han~ling 20. 00
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2. Additional Tax
Sub Total
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Satisfactions/Discharges/Releases List Property Owners M,iling Address '/ /-
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Suffolk County Recor n & Endorsement-Page
(SPE~ ~ OF ~S~~
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GRANT OF DEVELOPMENT RIGHT~ EASEMENT
_~IS GRANT OF DEVELOPNENT RIGHTS EASEMENT, is made on
the __ day of December~ 2010 at Southold, New York. The parties
are MARIA DEMCHAK and MICHAEL D. EMC. HAK, 3206.Carnoustie Court,
R[verhead, New York 1190]. (herein collectively r. ailed "Grantor"), and
the TOWN OF SOLITHOLD, a municipal corporation, having its principal
office at 53095 Nain Road, P.O. Box 1179, Southold, New York 11971
(herein called 'Grantee") and the United States of America ("United
States") by and through the United States Department. of Agriculture
("USDA") Natural Resources Conservation Service ('NRCS") acting on
behalf of the Commodity Credit Corporation, as its interest appears
herein.
I N_.'!'_ROD._U.._C'~._ !O N
WHEREAS, Grantor is the owner in fee simple of certain real
property IocaLed in the Town of Southold, Suffolk County, New York,
Identified as part of SCTN #~ and part of $CTM #1000-
84-:t-12.1, more fully.described in SCHEDLILE 'A" attached hereto and
made a part hereof and hereinafter referred to as the ~Property" and
shown on the survey prepared by Young & Young, dated November 16,
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 A-C Zoning District of
the Town of $outhoid; and
WHEREAS, the Property c(~ntains 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 Conserval~ion Service) Soil Survey of Suffolk County,
New York; and
WHEREAS, The Federal Farm and Ranch Lands Protection
Program's purpose is to assist in the purchase of conservation
easements on land with prime, unique, or other productive soil for the
purpose of protecting topsoil from conversion to nonagricultural uses
(16 U.S.C. 3838h and 3838i). Under the authority of the Farm and
Ranch Lands Protection Program, the United States Department of
AgricuJture Natural Resources Conservation Service (hereinafter the
"United States" or "NRCS') acting on behalf of the Commodity Credit
Corporation, has provided EIGHT HUNDRED SEVENTY
.T~H_Q..U...~AND AND 00/100 DOLLARS ($870.000.~_~ 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 Distric~ #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 :[973, amended in 1986 and
1989 as adopted by the Town Board, Town of $0uthold, and §272-a of
the New York State Tov~n Law (~Town Law") to protect environmentally
sensitive areas, preserve prime agricultural soils, to protect the scenic,
open space character of the Town and to protect the Town's resort and
agricultural economy; and
WHEREAS, the Property in ils present scenic and agricultural
condition has substantial and significant value as an aesthetic and
agricultural resource since it has not been subject to any development;
and
WHEREAS, Grantor and Grantee recognize the value and special
character of the region in which the Property is located, and Grantor
and Grantee have, in common, the purpose and objective of protecting
and conserving the present state and inherent, tangible and intangible
values of the Proper~y as an aesthetic, natural, scenic and agricultural
resource; and
WHEREAS, Grantee has determined it to be desirable and
beneficial and has requested Grantor, for itself and its successors and
assigns, to grant a Development Rights Easement to Grantee in order
to restrict the further development of the Property while permitting
compatible uses thereof;
NOW THEREFORE, in consideration of ONE MILl[ON SEVEN
HUNDRED THIRTY-THREE THOUSAND SIX HUNDRED SIXTY AND
50/t00 DOLLARS ($t,733,660.50) 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,
2
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, conditions, covenants, agreements, provisions and use
restrictions 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:
0.01 Grantors 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 Insurance Company
Title Report No. ST10-07862 and possesses the right to grant this
easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a
municipal,corporation organized and existing under the laws of the
State of New York State and is authorized under §64 of Town Law and
§247 of the New York State General rvlunicipal 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,
conservation and agricultural values of the Property and have the
common purpose of preserving these values by limiting nonagricultural
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, conservation 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 Recognition
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 ("IRC") and other federal statutes.
O,05~ocumentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property are compatible with the
purposes of this Easement. In order to aid in identifying and
documenting the present condition of the Property's natural, scenic,
conservation, 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 Gran~or'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 November :[6, 20:LO prepared
by Young & Young, and a Phase I Environmental Site Assessment
dated Hay :)6, 2010 by Cashin Associates, P.C.
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
[n 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 E~SENENT
1.ol
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" shalt
include any and all of those limitations, covenants, use restrictions,
rights, terms and conditions.
,'1.02_ De_fi_niti_en~_
"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
agr~ultural 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") now or as
Chapter 70 may be amended 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 Narkets
Law"), now or as §301(2)(a)-(j) may be amended, provided said
amended provisions are inherently similar in nature to those crops,
livestock and livestock products included as of the date of this
Easement. 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.
~lmprovement" 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 follow!ng 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, posts and wiring, farm
irrigation systems, nursery mats, or fencing ~ecessary 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 Duration
This Easement shall be a burden upon and run with the Property
in perpetuity.
;[. 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 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.
ARTICLE TWO
~;ALE
GRANTOR, for ONE HILL[ON SEVEN HUNDRED THIRTY-THREE
THOUSAND SIX HUNDRED SIXTY AND 50/100 DOLLARS
($1,733,660.50) good and valuable consideration, hereby grants,
releases, and conveys to Grantee this Easement, in perpetuity,
together with all rights to enforce it. Grantee hereby accepts this
Easement in perpetuity, and undertakes to enforce it against Grantor.
ARTICLE THREE
pEOHIBTTED AC'TS
6
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 1:he Southold Town Land Preservation
Committee. ("Land Preservation Committee") and other applicable
provisions of the Town Code and !.02 and 4.06 of this Easement.
:},92 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 or277 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 developn~ent righl~ 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 or reconfigure lot lines, provided that all
resulting parcels contain at least 10 acres of preserved agricultural
land subject to a development rights easement or other conservation
instrument.
Notwithstanding this Section 3.03, upon the death of Grantor,
the underlying fee interest may be divided by conveyance of parts
thereof to Grantor's executor, trustee, helm or next of kin by will or
operation of law. The United States Secretary of Agriculture shall be
notified prior to such division or conveyance.
3.04 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 agricultu.ral
practices on the Property, including fertilization, c.omposting and crop
removal.
3.05 Signs
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, weJls 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 centerfine 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
Hding aca~lemy, 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, now or as Chapter 70 may be amended, 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 said
§301 (2)(a)-(j) may be amended, provided said amended provisions
are Inherently similar in nature to those crops, livestock and livestock
products included as of the date of this Easement, and 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
fights 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 NRCS.
:3.09 Conservation PJan
All agricultural operations on the Property shall be conducted in
a manner consistent with a resource management system (RMS) ,
Conservation Plan (the"Conservation Plan") prepared by the NRCS
utilizing the standards and specifications of the NRCS Field Office
Technical Guide, 7 CFR Part 12 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 FP, PP
will assure that selected conservation practice alternatives will prevent
9
sheet and rill erosion from exceeding the current published soil loss
toJerance 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.
Conservation Comoltance Provisions of the Conservati_on._P!_an
As required by Section 12381 of the Food Security Act of 1985,'
as amended, the Grantor, its 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 NFtCS and approved by the Suffolk County Soil and
Water Conservation District. This Conservation Plan shall be developed
using the standards and specifications of the NP, C$ Field Office
Technical Guide (FOTG) and 7 CFR Part 12 that are in effect on the
date of this Easement. However, the Grantor may deve[op and
implement a conservation plan that proposes a higher level of
conservation and is consistent with the NI~CS Field Office Technic'al
Guide standards and specifications. NR. CS shall have the right to enter
upon the Property, with advance notice to the Grantor, in order to
monitor compliance with the Conservation Plan.
In the event of noncompliance with the Conservation Plan, NI~CS
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 compty with
the Conservation Plan, NP. CS 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,
(bi NP. CS has worked with the Grantor to correct such noncompliance,
and (c) Grantor has exhausted its appeal rights under applicable NP. CS
regulations.
If the NRCS standards and specifications for highly erodibie land
are revised after the date of this Easement based on an Act of
Congress, NRCS will work cooperatively with the Grantor to develop
end 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
10
affect any other natural resources conservation requirements to which
the Grantor may be or become subject.
3.11 Dr~3~qe
The use of the Property for a teaching or sewage disposal field
shall be prohibite, d. 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 Riqhts
The use of the acreage of this Property for purposes of
calculating lot yield on any other Property shall be prohibited. Grantor
hereby grants to Grantee all existing development rights (and any
further development rights that may be created through a rezoning of
the Property) on the Property, except for the right to use the Property
for agricultural production as set forth in Article Four below and the
right to construct, maintain and replace any pre-existing structures,
and to construct new structures, as such rights may be provided in
Section 4.06, and the parties agree that any other such development
rights shall be terminated and extinguished and may not be used or
transferred to any other parcels.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain
all other rights of ownership in the Property, some of which are more
particularly described in this ARTICLE FOUR.
4.02 Possession
Grantor shaU continue to have the right to exclusive possession
of the Property.
4.03 Use
11
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 Iocat, 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 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 Landscaping A~i__vities
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 Hght 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 ACtivities
Grantor shall have the right to engage in ali types of agricultural
production as the term is presently referenced in §247 of the General
Municipal Law and/or defined in Chapter 70 of the Town Code, now or
as Chapter 70 may be amended, and including the production of crops,
livestock and livestock produc~ as defined in §301(2)(a)-(j) of the
Agriculture and Markets Law, now or as §301(2)(a)-(j) may be
amended, provided said amended provisions are inherently similar in
nature to those crops, livestock and livestock products included as of
the date of this Easement. No future restrictions in said laws and/or
Code or limitation in the definitions set forth [n said taws and/or Code
sha~l 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 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 §4.06 herein and as
per. mitred by the Town Code nowor in the future on agricultural lands
protected by a development rights easement or other conservation
instrument, including but not limited to farmstands.
4.06 Statures
A. Allowable [mprovements. Grantor shall have the right to
erect and maintain the following structures and improvements on the
Property, as may be permitted by the Town Code, now or as may be
amended, and subject to the approval of the Town of Southold Land
Preservation Committee, provided the structures are consistent with
and do not derogate from or defeat the Purpose of this Easement or
other applicable taws:
(i)
Underground facilities used to supply utilities solely
for the use and enjoyment of the Property;
C~nstruction of new structures, including drainage
improvement structures, provided such structures
are necessary ~or or accessory to agricultural
production;
Renovation, maintenance and repairs of any existing
structures or structures built or permitted pursuant
to this Section 4.06, provided the primary purpose of
the structure remains agricultural;
(iv} Any improvement excluded from the definition of
"structure" in Section 1.02.
Lot coverage of impervious surface areas shall be limited to 10% of
the Property.
B. Conditions. Any allowable improvements shalJ protect
prime agricultural soils, agricultural production, open space and scenic
vistas, and otherwise be consistent with the Purpose of this Easement.
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 minim'al removal of
vegetation, minimal movement of earth and minimal clearance of
access routes for construction vehicles.
D. Replacement of Improvements. In the event of damage'
resulting from casualty loss to an extent which renders ~epair 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 shati notify Grantee, in writing, before the construction
of any permanent or temporary structures as permitted in Section
4.06 herein and shall file all necessary applications and obtain all
necessary approvals that may be required by this Easement or by the
Town Code, and shall provide documentation as may be required for
such applications.
4.08 Alienability
Grantor shall have the right to convey, mortgage or lease all of
its remaining interest in the Property but only subject to this
Easement. Grantor shall promptly notify Grantee and the United
States Secretary of Agriculture of any conveyance of any in{erest 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,
t4
specifically setting for the date, office, liber and page of the re~:ording
hereof. The failure of any such instrument to comply with the
provisions hereof shall not affect Grantee's rights hereunder.
4.01) 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 lntent and purpose of this Easement as set
forth in Section 0.03.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.0! Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments
and other governmental or municipal charges, which may become a
Ilen 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 assessment~ and other governmental or municipal charges
shall not cause an alienation of any rights or interests acquired herei~
by Grantee.
5..,0~2~ General 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
15
any and all liabilities, claims, demands, losses, expenses, damages,
fines, fees, penalties, suits, proceedings, actions and costs of actions,
sanctions asserted by or on behalf of any person or governmental
authority, and other liabilities (whether legal or equitable in nature and
including, without limitation, court co~ts and reasonable attorneys'
fees and attorneys' fees on appeal) to which Grantee or the United
States may be subject to or incur relating to the Property, which may
arise from, but are not limited to, Grantor's negligent acts or omissions
or Grantors breach of any representation, warranty, covenant, or
agreements contained in this instrument, or violations of any Federal,
State or local laws, including all Environmental Laws, as defined below.
5.~)2~Envir, onmental Warranty
"Environmental Law" or "Environmental Laws" means any and all
Federal, State, local or municipal laws, rules, orders, regulat!ons,
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, bullding and land
use as may now or at any time hereafter be in effect.
"Hazardous Materials" means any p. etrofeum, 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 alteged 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 Materials on, at, beneath or
from the Property, as such substances and wastes are defined by
applicable Federal and State law.
Noreover, 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, conservation 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 5.02 and Section 6.03.
ARTICLE SiX
.GRANTEE'S RIGHTS
6.0:~ 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
r
17
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 Restoration
In 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 Riohts 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 ancO/or permanent injunction,
(ii)
TO enter upon the Property and exerclse reasonable efforts
~o terminate or cure such breach, default or violation
and/or to cause the restoration of that portion of the
Property affected by such breach, default or violation to
the condition that existed prior thereto, or
(iii)
To 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 the Section 6.03 may be extended for a
reasonable time by Grantee if such restoration cannot reasonably be
accomplished within 10 days.
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 rec(~ipts requested. Mailed notice to Grantor shall be addressed
to Grantors address as recited herein, or to such other address as
Grantor may designate by notice in accordance with this Section 6.04.
Nailed notice to Grantee shall be addressed to its principal office,
recited herein, marked to the attention of the Supervisor and the Town
Attorney, or to such other address as Grantee may designate by notice
in accordance with this Section 6.04.
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, 44~. South Salina Street,
Suite 354, Syracuse, New York 13202-2450. Notice to the NRCS shall
be deemed notice to the United States of America.
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 the 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/Condemnetion
At the mutual request of Grantor and Grantee and the 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 for extinguishment of 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 val.ue 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.
]:f the condemnation rs undertaken by an entity other than the
20 .
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, in accordance with Section
7.12 herein.
ARTICLE SEVEN
MISCELLANEOUS
7.0:~ 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 sha~l be merged into this
Easement and Sul~erseded by it.
7.02 Amendment
This Easement may be amended only with the written consent of
Grantee and current Grantor and with the written approval of the
Secretary of the United States Department of Agriculture, and in
accordance with any appticable 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 Tnternal Revenue Code
§170(h). The parties agree to amend the provisions of this Easement
if such amendment shall be necessary, to entitle Grantor to meet the
requirements of §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.
in addition to the limitations set forth above, Grantee shall have
the right, subject to the provisions of Section 6.03 (Enforcement
Rights of Grantee) herein, to transfer alt 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
Internal 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,
NRC$. 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 apprqve 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 invatid or unenforceable by a court, shall not
be invalidated. Instead, that provision shall be reduced or limited to
whatever extent that court determines will make it enforceable and
effective. Any other provision of this Easement that is determined to
be invalid or' unenforceable by a court shall be severed from the other
provisions, which shall remain enforceable and effective.
7.05 Governinq L~w
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 Inte rpreta_ ti__o__n__
Regardless of any contrary rule of construction, no provision of
this Easement shall be construed in favor of one of the parties because
22
it was drafted by the other party's attorney. No alleged ambiguity in
this Easement shaJl 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 consistent with the purposes of this
Easement. Any rule of stri~c 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 its right to use the Property, except as otherwise
recited herein, be construed at all times and by all parties to effectuate
its purposes.
Z,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 Recordina
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 Head~cls
The h~adings, titles and subtitles herein have been inserted
solely for convenient reference, and shall be ignored In its
construction.
7.11 Proceeds
The grant of this Easement gives rise to a property right,
immediately vested in Grantee and the United States, which, for
purposes of calculating proceeds from a sale or other disposition of the
23
Property as contemplated under Section 6.06 (Extinguishment of
Easement), shall have a value equat 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 ,lanuary 6, 2010. The Proportionate Share
is 69.3%. The Proportionate Share shall remain constant (subject to
reasonable adjustment to the exl~ent 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 49.8%, and 50.2%, respectively, representing
the proportion each party contributed to the purchase price of the
Easement.
iN WITNESS WHEREOF, Grantor has executed and delivered and
Grantee has accepted and received this Grant of Development Rights
Easement on the day and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
NARZA DEMCHAK, Grantor
MICHAEL DEMCHAK, Grantor
ACKNOWLEDGED AND ACCEPTED:
Acceptance of Property Znterest by the Natural Resources
Conservation Service
The Natural Resources Conservation Service, United States
Department of Agriculture, an agency of the United States
Government, hereby accepts and approves the foregoing Grant of
Development Rights Easement, and the rights conveyed therein, on.
C~.
ASTON F. BOOZER, State Conservationist
STATE OF NEW YORK )
COUNTY OF ~NP~/~) SS:
On this ~"~day of ~Z~'.r. Md'~, in the year 2010 before me, the
undersigned, personally appeared Astor Boozer, personally known to'
me or proved to me on the b~is of satisfa~o~ evidence to be the
individual~ whose nameplate) sub.bed to the within
instrume~and acknowledge~to me th~ h~/sh~ey executed the
same in ~her/their capacity(les); and t~t by.her/their
signature, s) on the Instrument, the Individual(s), or the person upon
be~ o~ whlch~~?~ual(s) a~ed, execute~tS~SO
01ST 9 2
STATE OF NEW YORK
COUNTY OF SUFFOLK
On the ~ day of
Co i ioa
[, ss: I c mber 8,=
~ in the year 2010 before me, the
undersigned, personally appeared Nada Demchak, 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.
· Signature/office of individual taking acknowledgement
PATRICIA L. FALl.ON
Not~ht Publio, State Of New York
No. 01FA4950146
Qualified In Suffolk County
25 Commission Expires AlXil 24, ~-/))1
STATE OF NEW YORK)
COUNTY OF SUFFOLK) SS:
On this ~ day of ~- in the year 2010 before me, the
undersigned, personally appeared Michael Demchak, 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
No, 0iFA4950146
Qualified In Suffolk ¢ourrtv
Commission Expires April 'J4, ~'
STATE OF NEW YORK)
COUNTY OF SUFFOLK) SS:
On this ~day of ~~10 before me, the
undersigned', personally appeared~I, 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
PATRIC[A L, FALLON
Notary puhliC, State Of New 3brK
Qualified In_SI.tffotk C. Oa, lr~24 __ ..
Oommlss[o~ Expires AlX'U ~:
NEW YORK METRO
SCHEDULE A - DKSCRIPTION
Title No.: ST19-078~
(AMENDF_.D 11/29/2010)
ALL fltat ce~ain plot, piece or parcel of land, situate, lying and being at Cut~hogue, in thc Town of
$outhold, County of Suffolk and State of New York, bounded and described more particularly as
follows:
BEG-~G at a point on the southeasterly side of O~got~ Road distant the following four (4) courses
and distances from the corner formed by the imersoction of ~ southea~rly si&~ of Oregon Road and
the northerly side of Cox's Lane:
O)
(2)
O)
(4)
North 32 degrees 10 minutes 5~Z r~cond$ Fast, 222,47 feet to a point;
North 30 degrees 59 minutes 42 seconds East, 569.34 feet to a monument;
No~th 4~ degrees 27 minme~ 32 second~ Fast. ].06.7~ feet m a monument;
No~h 4~ degrees 27 mimes 32 seconds East. ~1.67 feet to ~e tz~ point or pla~e of
RUNNING THENCE sa'Il along the souiheast~ly aide of Oregon Road North 49 degrees I0 minute$ 32
seconda East, 404.49 feet to a monument and land now or formerly of Lieb Vineyard
THENCE along said land South 60 degrees 32 minutea I4 seconds East, tSgg.20 feet to a monumont
and land now or formerly ofSteven Dubner;
THENCE along said land South 57 desrees I0 minutes 09 seconds West, 452.16 feet to a monumem and
land now or formerly of Robert A. ~aeb and Phyiis A. Oraeb;
THENCE along said land arid I~md now or formerly of Michael I)cmchak and Maria IX-mchak (Retained
Parcel "B') South 57 degrees 09 minutes ~9 ~nds West, 403.23 feet to a point;
THENCE along otl~r land now ~ formerly of Michael Demc. hak and Mafia Demchak North 60 degrees
33 minutes $8 seconds We, st, 491.77 feet to a monumem and mher land now or formerly of Lieb
Vineyard LLC;
TI-IE~CE along said land North 61 degrees 07 minutes 28 seconds West, 572.69 ~ct to other hind now
or formerly of Michael Den'~.hak and Maria D~,chak (Retained Parcel "A");
THENCE along said land ~ following two (2) courses and dislances:
(2)
North 28 degrees 52 minutes 32 seconds East, 334.15 feet;
North 55 degrees 33 minutes 29 seconds West, 562.23 feet to the southeasterly sid~ of
Oregon Road, the point or place of BEGll~h'ING.
i
I