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Home My WebLink AboutL 12648 P 617!l I lll SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument: EASEMENT Number of Pages: 25 Receipt Number : 11-0005378 TRANSFER TAX NUMBER: 10-12351 District: 1000 Deed Amount: Recorded: At: LIBER: PAGE: Section: Block: 120.00 03.00 EX~HINED AND CHARGED AS FOLLOWS $502,796.70 o1/1~/2o11 04:21:10 D00012648 617 Lot: 011.018 Received the Following Fees For Above Instrument Exempt Page/Filing $125.00 NO ~dling C0E $5.00 NO NYS SRCHG TP-584 $5.00 NO No~ation Cert. Copies $16.25 NO RPT Transfe~ ~ax $0.00 NO Comm. Pres Fees Paid TRANSFER TAX NUMBER: 10-12351 THIS PAGE IS A PART OF THE INSTRUMENT THIS IS NOT A BILL $20.00 815.00 $o.oo $30.00 $o.oo $216.25 Exempt NO NO NO NO NO JUDITH A. PASC~?.~ County Clerk, Suffolk County This document will be p.ublic record. Please remove all Social .Security Numbers prior to recording. Dc~I / Mortga§~ I~muncnt Doll / Mortgago Tax Stamp 2011 $~ 14 04:21:10 PH JUDITH A. P~C~E CL~K ~ SUFFO~ C~flT'~ L D~01~48 P 617 SubTotal I ~) Affidavit m~s su~ 1000 12000 0300 V~fion Mortgage 1. Basic Tax 2. Additional Tax SubTotal SpccdAssit or S~./Adll, Dual Town I~ld for Appointment Transfer Tax Mansion Tax The lXml~rty covered by this mo~gage is or will b~ improved by a one or two family dwelling only. YF_~~ or NO If NO, ~ aPpro~at, tax clam= on psge # ..of this insma~ent. Co~m--Ity Pre~ereatton Fund [ RECORD & II~T~I/~I TO: Vacant Land I f'.o,~o~(//TF ~TD ~' I Mali to: Judlth k Pas'oale, Suffolk CJun~'Cle~ { 310Center Drip, Rl~e~, ~ 11901 JO° N~e ~'~~ ...... Recording & Endor'sement Pa e BOXES 6 THRU 8 MUST BB TYPED OR PR[NTF. D IN BLAJ2K INK OIqLY PRIOR TO I~ING OR FI~G, IMPORTANT NOTICE %, If the d~:ument you've Just recorded is your ~TIBFAcTION O_F_.MORTiL~OE, please be aware of the following: If a portion of your monthly mortgage payment included your property taxes, _*~ou will now need to contact Your local Town Tax Receiver so that _you may b.e .billed directly for all future property statements. Local property taxes are payable twice a year:, on or before January 10· and on or before May 31". Failure to make payments in a timely fashion could result in a penaltyl ; Please contact your local Town Tax Receiver with any quastions s~gara~ property tax payment. Babylon Town Receiver of Taxes 200 East Sdnrlse Highway North Llndenhurst, N.Y. 11757 {631} 957-3004 Brookhaven Town Receiver of Taxes One. Independence Hill Farmlngville, N.Y. 11738 {631) 451-9009 East Hampton Town Receiver of Taxes 300 Pantlg0 Place East Hampton, N.Y. 11.937 (631) 324-2770 Huntington Town Receiver of Taxes 100 Main Street ~ Huntington. N.Y. 11743 {631) 351-3217 [slip Town Receiver of Taxes 40 Nassau Avenue [slip, N.Y. 11751 {6311 224-5580 Riverhead Town Receiver of Taxes 200 Howell Avenue Riverhead, N.Y, 11901 (631) 727-3200 Shelter Island Town Receiver of Taxes Shelter Island Town Hall Shelter Island, N.Y. 11964 (631) 749-3338 Smithtown Town Receiver of Taxes 99 West Main Street smith, tow~, N,Y, ,11787 (63].) 360-761_0 Southampton .Town Receiver of Taxes 116 Hampton Road Southampton, N.Y. 11968 (631) 283-651.4 Southold Towr~ Receiver of Taxes 53095 Main Street Southold, N.Y. 11971 (631) 765-1803 Sine'ely, Judtth A. Pascale 'Suffolk County Clerk GRANT OF DEVELOPMENT RIGHTS EASEMENT THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on the ~/~ day of December, 2010 at Southold, New York. The parties are KKP, LLC, with offices at 1002 Bluff Drive North, Baiting Hollow, New York 11948, c/o Peter Harbes, Managing Member (herein called 'Grantor"), and the TOWN OF SOUTHOLD, a municipal corporation, having its principal office at 53095 Main Road, P.O. Box :L179, Southold, New York 11971 (herein call "Grantee"). INTRODUCTION WHEREAS, Grantor is the owner in fee simple of certain real property located in the Town of Southold, Suffolk County, New York, identified as part o1' 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 Nathan Taf~ Corwin III, Land Surveyor, dated November 2, 2010 (a reduced copy of which is attached hereto and made a part hereo¢ and hereinafter referred to as the "Survey"); and WHEREAS, the Property is located in the A-C 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 Soil Conservation Service's Soil Survey of Suffolk County, New York; and WHEREAS, the Property is part of the New York State Agricultural District #1, and the Grantor wishes to continue using the Property for agricultural production as defined in this Easement; and WHEREAS, the Property is currently used for field crops; and WHEREAS, it is the policy of the Town of Southold (the 'Town"), as articulated in the Town's Master Plan of ~L973, 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 FiVE HUNDRED TWO THOUSAND SEVEN HUNDRED NINETY-SiX AND 70/100 DOLLARS ($502,796.70.) and other good and valuable consideration paid to the Grantor, the receipt of which is hereby acknowledged, the Grantor does hereby grant, transfer, bargain, sell and convey to the Grantee a Development Rights Easement, in gross, which shall be binding upon and shall restrict the premises shown and designated as the Property herein, more particularly bounded and described on Schedule "A" annexed hereto and made a part of this instrument. TO 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 fee title to the property, and the exclusive right of occupancy and of use of the Property, subject to the limitations, condition, covenants, agreements, provisions and use restrictions hereinafter set forth, which shall constitute and shall be servitudes upon and with respect to the Property. 2 The Grantor, for itself, and for and on behalf of its legal representatives, successors and assigns, hereby covenants and agrees as follows: 0.0[ Grantor's Warranty Grantor warrants and represents to the Grantee that Grantor is the owner of the Property described in Schedule A, free of any mortgages or liens, except as set forth in Stewart Title Insurance Title Report No. 1009332, 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 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 reso u roes. 0.03 Purpose The parties recognize the environmental, naturalt scenic 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, natural, scenic and agricultural 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 Governm...ental Recoqnition New York State has recognized the importance of private efforts to preserve rural land in a scenic, natural, and open condition through conservation restrictions by the enactment of General Municipal Law §247. Similar recognition by the federal government includes §170(h) of the :Internal Revenue Code ("TRC") and other federal statutes. 0.05 Baseline Documentation Grantee acknowledges by acceptance of this Development Rights Easement that present uses of the Property are compatible with the purposes of this Easement. In order to aid in identifying and documenting the present condition of the Property's natural, scenic, agricultural, and aesthetic resources and otherwise to aid in identifying and documenting the Property's agricultural values as of the date hereof, to assist Grantor and Grantee with monitoring the uses and activities on the Property and ensuring compliance with the terms hereof, Grantee has prepared, with Grantor's cooperation, an inventory of the Property's relevant features and conditions (the "Baseline Documentation"). This Baseline Documentation includes, but need not be limited to, a survey prepared by Nathan Taft Corwin III, Land Surveyor, dated November 2, 2010, and a Phase 1 Environmental Site Assessment dated November 4, 20:[0 by Nelson, Pope and 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 In consideration of the previously recited I"acts, 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. Definitions "Development Rights" shall mean the permanent legal interest and right to prohibit or restrict the use of the Property for uses or purposes consistent with the terms of this Easement, including agricultural production as that term is presently referenced in §247 of the General Municipal Law and/or defined in Chapter 70 of the Town Code of the Town of Southold (the "Town Code" or "Code") now, or as said Chapter 70 may be amended, 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 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 in said laws and/or Code shall preclude a use that is permitted under the current law and/or Code. "Improvement" shall mean any addition to raw land, such as structures, fences, wells or drainage. "Riding Academy" shall mean a business use of a lot for any of the following purposes: the letting of horses for hire to individuals or groups whether supervised or unsupervised, horseback riding instruction or the holding of horse shows or other equine events. "Structure" shall mean anything constructed or erected on or under the ground or upon another structure or building, including walkways. Structures shall not include trellis, 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. :L.03 Duration This Easement shall be a burden upon and run with the Property in perpetuity. 1.04 Effect This Easement shall run with the Property as an incorporeal interest in the Property, and shall extend to and be binding upon Grantor, Grantor's agents, tenants, occupantS, helrs, personal representatives, successors and assigns, and all other individuals and entitles and provides Grantee with the right to administer, manage and 5 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 entitles. ARTICLE TWO SALE GRANTOR, for FIVE HUNDRED TWO THOUSAND SEVEN HUNDRED NINETY-SIX AND 70/100 DOLLARS ($502,796.70) and such other 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 TH REE 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. .3JO_2 Excavation and Removal of Materials: Mining The excavating, regrading, scraping or filling of the Property shall be prohibited, without the prior written consent of Grantee, including but not limited to from the Land Preservation Committee. Mineral exploitation, and extraction of any mineral, including but not limited to soil, gravel, sand and hydrocarbons, by any method, surface or subsurface, is prohibited. The removal of topsoil, sand, or other materials from the Property is prohibited, nor shall the topography of the Property be 6 changed, except in connection with normal agricultural/horticultural activities, all of which shall require the prior written consent of Grantee, including I~ut not limited to from the Land Preservation Committee. 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 Southotd and as otherwise required by applicable law, subdivide the property, 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, heirs or next of kin by will or operation of law. 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. 3.05 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 conductec~ thereon, (bi 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. 3.0,6 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, except for underground utilities presentfy existing, and referenced in an easement recorded simultaneously herewith in the Office of the Suffolk County Clerk and described In Section 4.06 herein. 3.07 Prohibited Uses Except for uses specifically permitted by this Easement, the use of the Property or structures on it for any residential, commercial or industrial uses, permanent or temporary, including but not limited to a riding academy, shall be prohibited. For the purposes of this section, agricultural production, as that term is presently referenced in §247 of the General Municipal Law and/or defined in Chapter 70 of the Town Code, now, or as said Chapter 70 may be amended and including the production of crops, livestock and livestock products as defined in Section 30:L(2)(a)-(j) of the Agriculture and Markets Law, now or as said Section 301(2)(a)-(j) may be amended, provided said amended provisions are inherently similar in nature to those crops, ~ivestock 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 ~ 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 Wete~ Any use or activity that causes or is Iikefy to cause soil degradation or erosion or pollution of any surface or subsurface waters shall be prohibited. This prohibition shall not De construed as extending to agricultural operations and practices (including, without limitation, the use of agrochemicals such as fertilizers, pestiddes, herbicides, and fungicides) that are in accordance with sound agricultural management practices of the Natural Resources Conservation Service ("NRCS"). 3.09 Drainage The use of the Property for a leaching or sewage disposal field shall be prohibited. The use of the Property for a drainage basin or sump shall be prohibited, except in accordance with sound agricultural management practices and in order to control flooding or soil erosion on the Property. 3.10 Development Rtqhts The use of the acreage of this Property for purposes of calculal~ing 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 reptace any pre-existing structures, and to construct new structures, as such fights 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. AR-I-~CLE FOUR G.I~ N.TO R'S RI G HTS 4.01 Ownership Subject to the provisions of ARTICLE THREE, Grantor shall retain all other rights of ownership in the Property, some of which are more particularly described in this ARTICLE FOUR. 4.02 Possession Grantor shall continue to have the right to exclusive possession of the Property. 4.03 Use 9 Grantor shall have the right to use the Property in any manner and for any purpose consistent with and not prohibited by this Easement, as well as applicable local, starer 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 shatl not be offered or provided for the commercial purposes, including the commercial gain of Grantor or others. Grantor may maintain the following pre-existing uses located within the 7,966 sq. ft. access area at the northeast side of the Property and shown on the Survey ("the Access Area"): 1. Parking within the northerly portion of the Access Area shown on the Survey as the "Gravel & Dirt Area," up to the point shown on the survey as "Post and Rail Fence," provided said parking area is used in conjunction with Grantor's retail agricultural uses; 2. "Dirt Access Road" shown on the survey, used for the following: a) agricultural purposes; b) to access overflow parking areas on adjacent parcels for Grantor's retail agricultural uses; c) to access a residential dwelling, on an adjacent parcel. Said dirt access road shall only be used for the purposes set forth in this 4.03, and not for any new or additional uses. 4.04 Landsca pinaActivities 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 10 maintain or improve the appearance of the property, and to mow the property. 4.05 Agricultural Procluctlo~Land Actlviitles Grantor shall have the right to engage in all types of agricultural production as the term is presently referenced in Section 247 of the General Municipal Law and/or defined in Chapter 70 of the Town Code, now or as said Chapter 70 may be amended and including the production of crops, livestock and livestock products as defined in Section 30:~(2)(a)-(j) of the Agriculture and Markets Law, now, or as 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 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 conslstent 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 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. 4.06 Structures A. Allowable Improvements. 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 Southold 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: Underground facilities used to supply utilities solely for the use and enjoyment of the Property; (ii) Underground utilities presently existing and referenced In an easement recorded simultaneously herewith, said easement area shown on the Survey. il Pre-ex]sting dirt access road, located within the 7,966 sq.ft. Access Area of the Property and accessed from Sound Avenue, shown on the Survey; (iv) New construction, including drainage improvement structures, provided such structures are necessary for or accessory to agricultural production; (v) . 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; (vii) Any improvement excluded from the definition of "Structure" in Section 1.02. B. Conditions. Any allowable improvements shall protect prime agricultural soils, agricultural production, open space and scenic vistas, and otherwise be consistent with the Purpose of this Easement. 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 shali minimize disturbances to the environment. Grantor shall employ erosion and sediment control measures to mitigate any storm water runoff, including but not limited to minimal removal of vegetation, minimal movement of earth and minimal clearance of access routes for construction vehicles. D. Replacement of Improvements. In the event of damage resulting from casualty loss to an extent which renders repair o1' 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. Grantor shall notify Grantee, in writing, before the construction of any permanent or temporary structures as permitted in Section 12 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 AlienabiliW Grantor shall have the right to convey, mortgage or lease all of its remaining interest In the Property but only subject to this Easement. Grantor shall promptly notify Grantee of any conveyance of any interest in the Property, including the full name and mailing address of any transferee, and the individual principals thereof, under any such conveyance. The instrument of any such conveyance shall specifically set forth that the interest thereby conveyed is subject to this Easement, without modification or amendment of the terms of this Easement, and shall incorporate this Easement by reference, specifically setting for the date, office, llber 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 Restflcti0_n. 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 F][VE ..GRANTOR'S OBLIGATION S 5.01 Taxes and Assessments Grantor shall continue to pay all taxes, levies, and assessments and other governmental or municipal charges, which may become a lien on the Property, including any taxes or levies Imposed to make those payments, subject, however, to Grantor's right to grieve or contest such assessment. The failure of Grantor to pay all such taxes, levies and assessments and other governmental or municipal charges shall not cause an alienation of any rights or Interests acquired herein by Grantee, 5,..0.2 Indemnification Grantor shall indemnify and hold Grantee harmless for any Iiabillty, costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or any of its officers, employees, agents or independent contractors, all of which shall be reasonable in amount, arising from injury due to the physical maintenance or condition of the Property caused Dy Grantor's actions or Inactions, or from any taxes, levies or assessments upon it or resulting from this Easement, all of which shall be considered Grantor's obligations. 5333 ~h~d Party Claims Grantor shall indemnify and hold Grantee harmless for any liability, costs, attorneys' fees, judgments, or expenses, charges or liens to Grantee or any of its officers, employees, agents or independent contractors, afl of which shall be reasonable in amount, resulting: (a) from injury to persons or damages to property arising from any activity on the Property; and (b) from actions or claims of any nature by third parties arising out of the entering into or exercise of rights under this Easement, excepting any of those matters arising solely from the acts of Grantee, its officers, employees, agents, or independent contractors, 5,04 Grounds Maintenance Requirement If Grantor leaves the Property fallow 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 Dy 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 compiy 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. ~_~.I CLE STX GRANTEE'S RIG Hl-~.. 6.01 Entry and Inspect!qn 14 Grantee shall have the right to enter upon the Property at reasonable times, upon prior notice to Grantor, and in a manner that wtll not interfere with Grantor's quiet use and enjoyment of the Property, for the purpose of inspection to determine whether this Easement and its purposes and provisions are being upheld. Grantee shall not have the right to enter upon the Property for any other purposes, except as provided in Section 5.04 and 6.03, or to permit access upon the Property by the public. 6.02 RestoratioQ Tn addition to Grantee's remedies under Section 5.04, Grantee shall have the right to require the Grantor to restore the Property to the condition required by this Easement and to enforce this right by any action or proceeding that Grantee may reasonably deem necessary. However, Grantor shatl 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 Riahts 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: To institute a suit to enjoin or cure such breach, default or violation by temporary and/or permanent injunction, (ii) To enter upon the Property and exercise reasonable efforts to terminate or cure such breach, default or violation and/or to cause the restoration of that portion of the Property affected by' such breach, default or violation to the condition that existed prior thereto, or (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. Grantor shall pay either directly or by reimbursement to Grantee, all reasonable attorneys' fees, court costs and other expenses incurred by Grantee (herein called 'Legal Expenses") in connection with any proceedings under this Section, as approved by the Court. The cure period in this Section 6.03 may be extended for a reasonable time by Grantee if such restoration cannot reasonably be accomplished within ten (10) days. 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. Nailed notice to Grantor shall be addressed to Grantor's address as recited herein, or to such other address as Grantor may designate by notice in accordance with this Section 6.04. Nailed notice to Grantee shall be addressed to its principal office recited herein, marked to the attention of the Supervisor and the Town Attorney, or to such other address as Grantee may designate by notice in accordance with this Section 6.04. Notice shall be deemed given and received as of the date of its manual delivery or three 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 Extin_quishment of Easement/Condemnation At the mutual request of Grantor and Grantee, a court with jurisdiction may, if it determines that conditions surrounding the Property have changed so much that it becomes impossible to fulfill the Purpose of this Easement described in Section 0.03, extinguish or modify this Easement in accordance with applicable law. The mere cessation of farming on the Property shall not be construed to be grounds for extinguishment of this ~:asement. If at any time the Property or any portion thereof shall be taken or condemned by eminent domain, by the Grantee or by any other governmental entity, then this Easement shal) 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 Lo the Grantor shall be in proportion to the value attflbutable 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 development rights transferred hereby. ARTICLE SEVEN MISCELLANEOUS 7.0~....Entire Understanding This Easement contains the entire understanding between its parties concerning its subject matter. Any prior agreement between the parties concerning its subject matter shall be merged into this Easement and superseded by it. 7.02 Amendment This Easement may be amended only with the written consent of Grantee and current Grantor and in accordance with any applicable State and local laws. Any such amendment shall be consistent with the Purpose of this Easement and shall comply with the Town Code l? and any regulations promulgated hereunder and with the Purpose or this Easement, and shall be duly recorded. This Easement is made with the intention that it shall qualify as a Conservation Easement in perpetuity under ;internal Revenue Code §:170(h). The parties agree to amend the provisions of this Easement if such amendment shall be necessary, to entitle 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.g3 Alienation No property rights acquired by Grantee hereunder shall be alienated except pursuant to the provisions of Chapter 70 of the Town Code or any successor chapter and other applicable laws, upon the adoption of a local law authorizing the alienation of said rights and interest, following a public hearing and, thereafter, ratified by a mandatory referendum by the electors of the Town of Southold. No subsequent amendment of the provisions of the Town Code shall alter the limitations placed upon the alienation of those property rights or interests which were acquired by the Town prior to any such amendment. :In addition to the limitations set forth above, Grantee shall have the right 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. 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. 7.04 Severabiljty Any provision of this Easement restricting Grantor's activities, which is determined to be invalid or unenforceable by a court shatl not be invalidated. Znstead, 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 shaJl remain enforceable and effective. 7.~5 Governing Law New York law applicable to deeds to and easements on land located within New York shall govern this Easement in all respects, including validity, construction, interpretation, breach, violation and performance. 7.06 Interoretation Regardless of any contrary rule of construction, no provision of this Easement shall be construed in favor of one of the parties because it was drafted by the other party's attorney. No alleged ambiguity in this Easement shall be construed against the party whose attorney drafted it. If any provision of this Easement is ambiguous or shall be subject to two or more interpretations, one of which would render that provision invalid, then that provision shall be given such interpretation as would render it valid and be consistent with the purposes of this Easement. Any rule of strict construction designed to limit the breadth of the restrictions on use of the Property shall not apply In the construction or interpretation of this Easement, and this Easement shall be interpreted broadly to effect the purposes of this Easement as intended by the parties. The parties intend that this Easement, which is by nature and character primarily negative in that Grantor has restricted and limited his right tO use the Property, except as otherwise recited herein, be construed at all times and by all parties to effectuate its purposes. 7.07 Public Access Nothing contained in this Easement grants, nor shall it be interpreted to grant, to the public, any right to enter upon the Property, or to use images of the Property. Grantee may use images of the Property only for non-commercial reporting of this Easement. 7.08 Warranties The warranties and representations made by the parties in this Easement shall survive its execution. 7.09 RecordinQ Grantee shall record this Easement in the land records of the office of the Clerk of the County of Suffolk, State of New York. 7.10 Headinqs 19 The headings, titles and subtitles herein have been inserted solely for convenient reference, and shall be ignored in its construction. :IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted and received this Grand of Development Rights Easement on the day and year set forth above. ACKNOWLEDGED AND ACCEPTED'. BY: ~ PETER HARBES, Managing ACKNOWLEDGED AND ACCEPTED: : Scot~'A. Russell, Supervisor ETA TE OF NEW YORK) COUN7~ OF SUFFOLK), On the ~ day of ~ in the year 2010 before me, the undersigned, personally appeared Peter Harbes, personally known to me or proved to me on the basis of satisfactory evidence to be the individual (s) whose name (s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they execut~ the same in hi~/her/thelr capacity (les), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the tndMdual(s) acted, e~ecuted the instrument. Signature/office of individual taking acknowledgement PATRICIA L. FALLOr4 ETATE OF NEW YORK ) Notary Puh~=, state of New Yom No. 01FA4950146 COUNTY OF EUFFOLK ) ~" Qualified In SuffolX Counly __ Commission Expires A¢~II 24, a/.~// On this ~ day of ~ in the year 2010 before me, the undersigned, personally appeared Scott A. Russell~ personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(les), and that by 20 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 PATRICLA L. FALLON Notar~ Pubrio, State Of New NO. 01 FA4950146 Qualified In Suffolk County Commis~on Ex~lres April 2~, 2[ r-stewar-i ~tifle insurance company NEW YORK METRO snewarm~WorlLcom SCHEDULE A - DESCRIPTION Title No.: ST10-09332 AMENDED 12."7f2010 DEVELOPM_E~ RIG~ EASEMENT AREA ALL that certain plot, piece or pn.,'cel of lax~l, situate., lying and being in the Hamie~ of Mattituck, Town of Southold, County of Suffolk and State of New York, bounded and described aa follows: BEGINNING at a point on the southerly side of Sound Avenue distant the following two (2) courses and distances from &e comer formed by the inlerze~tion of the southerly side of Sound Avenue wilh the weslerly side of Aldrich Lane (F_,iishn's Lane): (1) (2) Nm'th 89 degrees 54 minutes 00 seoonds West, 489.07 feet: South 88 degrees 13 minutes 50 s~eonds West, 119.94 feet to the true point or p]ac_~ of beginning; RUNNING THENCE along land now or formerly of Harbes Farm Riverhead East./_LC and through a eoncrel~ monument, South 19 cl~grees 59 minmes l0 seeonds East, 1,389.36 feet to land now or forng~ly of P&E, LLC (Town of$outbold EMvelopmem Rights); THENCE along said land South 71 degnzs 31 minutes 30 se~oads West, 305.21 feet to land nowor formerly of Palricia Divello; THENCE along ,~aid land North 19 degrees 53 minutes 50 seconds West, 1,120.73 feet to a point; THENCE North 70 degrees 06 minutes 10 seconds East. 253.42 fee~ to a point; THENCE North 19 degrees 59 minutes 10 seconds West, 277.45 fee~ to the southerly side of Sound Avenue; THENCE along the southerly sick: of Sound Avenue North 88 degrees 13 minutes 50 seconds East, 52.64 feet to lhe true point or place of BEGINNING. RESERVE AREA - NOT TO BE INSURF~ (for informational imrpnaes only) ALL that certain plot, piece or parcel of land, situate, lying and being in tl~ Hamlet of Mattituck, Town of Southold, County of Suffolk and State of New York, boumled and described as follows: BEGINNING at a point on the southerly sick: of Sound Avenue distant the following three (3) courses and distances from the em'nor form~ by the intersection of the southerly side of Sound Avenue wilh the westerly side of Aldrich Lane (Eli~ha's Lane): (1) North 89 ~ 54 min,,~es 00 sex:onds W~% 489.07 feet: (2) (3) South 88 degrees 13 minutes 50 seconds Weal, 119.94 feet: South 88 degrees 13 minutes 50 seconds Wesl, 52.64 feet to the true point or place of' beginning; RUNNING THENCE South 19 degrees :59 minules 10 secxmds EssL 2/7.45 fe~t 1o a point: THENCE South 70 ~ 06 minutes ICI seconds West, 253.42 feet Io land now or formerly of Patricia Divello; THENCE along said land North 19 degrees 53 minutes 50 seconds West, 3~ !.79 feet to the southerly side of Sound Avenue; THENCE along said southerly side of Sound Avenue the following two (2) courses and distances: (1) (2) North 85 degrees 38 minufes 20 seconds East, 178.42 feel; North 88 degrees 13 minutes 50 secon~ East, 85.33 feet lo the true point or place of BEGINNING. ACCESS AREA ALL that certain plot, pkce or parcel, of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold, Coanly of Suffolk and Sta~e of New York, bounded and described as follows: BEGINNING al a point on the southerly side of Sound Avenue distain the following two (2) courses and distances from the comer formed by the intersection of the southedy side of Sound Avenue with the westerly side of Aldrich Lane (Elislm's Lane): (l) North 89 degrees 54 minutes 00 seconds West, 489.07 feet; (2) Soath 88 degrees 13 minutes 50 seconds West, 119.94 feel to the true point or place of beginning; RUNNING THENCE along land now or formerly of Harbes Farm Riverkead Easl. LLC and through a concrete monument. South 19 degrees 59 minutes 10 seconds East, 268.32 feet; THENCE South 70 degrees O0 minutes 59 seconds West, 25.38 feel; THENCE North 19 degre~ 39 minutes 10 seconds West, 234..57 feet; THENCE South 85 degrees 59 minutes 29 seconds WesL 25.61 feel; THENCE North ~9 degrees ~9 minu~s I0 seconds Weal, 43.1.5 feet to the ,southerly side of Sound Avenue; THENCE .along the southerly side of Sound Avenue North 88 degrees 13 minutes 50 seconds East, 52.64 feet to the true point or place of BEGINNING. soUND SURYKY OF' PROPERTY ~L~TTITUCK sorroLK (~UNT¥, NL'W ~ l'nW~' N.~th~r~ Ta~t C, orwln II