HomeMy WebLinkAboutL 12646 P 881SUFFOLK COUNT~ CLERK
RECORDS OFFICE
RECORDING PAGE
~ of Inst~_,ment: EASEMENT
Number of Pages: 22
Receipt Number · 10-0148490
TRANSFER TAX NUMBER: 10-10 941
District'
1000
Deed' Amount:
LIBER:
PAGE:
Section' Block-
125.00 03.00
EXAMINED AND CHARGED AS FO~S $ 610,102. O0
12/28/2010
09:37:49 AM
D00012646
881
Lot::
004.005
Received the Following Fees For Above Instrument
Exempt
Page/Filing $110.00 NO Hkndling
COE $5.00 NO NYS SRCHG
TP-584 $5. O0 NO Notation
Cert. Copies $14.30 NO RPT
Transfer tax $0.00 NO Comm. Pres
Fees Paid
TRANSFER TAX NUMBER: 10-10941
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
$20.00
$o.oo
$ o.oo
$o.oo
Exempt
NO
NO
NO
NO
NO
JUDITH A. PASCALE
County Clerk, Suffolk County
. .
Number of pages
_ ,
This document will be public
record. Please remove all
Social Security Numbers' ...
prior to recording.
.........................
D~d/Mortgage Inslxument
........... ~.: .....................
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.................................
,
Page ! Filing Fee ......
Notation
EA-52 17 (County)
EA-5217 (State)
R.RT.S,A,
Comm. of F~
Affidavit
_.
*Other
...............
Real Property
Tax Service
Agency
Verification
Sub Total
I ,i
15. 00
,
Sub Total
Grand Total
10028072 $ooo ,.2soo o=oo oo4oo~
Satisfactions/Discharges/Releases List Property Owners Mailing Add. ss
RECORD & RETUI~ TO:
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..
R~CORDIEO
2010 Dec 28 09:37:49 ~
'JO6ITH A, Pnc.~nt_e
CLEI~ OF
SUFFOLK COUHTV L D00012646
P
DT~
Recording I Filing Stamps
Mortgage Amt.'
1, Basic Tax.
2. Additional Tax
Sub Total
Spec.lAss it.
Spec./Add, r ----
=
TOT. MTG~ TAX
Dual Town~ Dual County .....
Held for Appointment ~
Transfer Tax _~'X~ tl~ ~
Mansion Tax
The properly covered b½ this mortgage is
or wi]l be improved by a one or two
family dwelling only,
YES or NO
If NO, see appropriate tax clause on
page # 'of this instrument,
.
+
·
Consideration Amount $
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CPF T~ Due $
Imp'rove. d'
Vacant Land
TD
TD
Mail to: Judith A. Pascale, Suffolk County Clerk Title Com Information
310 Center Drive, Riverhead, NY 11901 ~"~ba-z/ A/',&77~/~,z. 7Yy~e_~e
www. suffol kcou ntyny, gov/cle rk Co, Name
Title # ,0' -,.~.~'
Suffolk Recordin &. Endorsement pa_._agg
This page forms part of the attached G~~ 0~ b__~___E~D~ ~G/~7'~ ~"-~_. made by:
(SPECIFY TYPE OF INSTRUME~ · · -
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~~~ OF.f~Z~ ,~~/ SUFFOLK COUP, ~W YORK,
TO In the TOWN of .~ U 77~
.............. C'~a/~..........V~,, f~ff~l ................. ~.a the VILLAGE ' '
...... or HAMLET of ~ ~ ~ ~
_ . ,
BOX~ 6 ~RU 8 MUST BE TYPED OR PRIED ~ BLACK ~K O~Y PRIOR ~ RECORDING OR FILING.
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS GRANT OF DEVELOPME~ RIGHTS EASEMENT, is made on the 9th
day of December, 2010 at Southold, New York. The parties are Edward Sawicki,
individually, and Edward Sawicki, as Executor of the Estate of Stanley Sawicki,
P.O. Box ~11, Ma~tituck, NY 11952 (herein collectively called "Grantor"), and the
TOWN OF SOUI'HOLD, a munidpal corporation, having its principal office at
53095 Main Road, P.O. Box ~179, Southold, New York 11971 (herein called
"Grantee").
INTRODUCTION
WHER~ Grantor is the owner in fee simple of certain real property
Focated in the Town of $outhoJd, Suffolk County, New York, identified as part of
sc-rlVl #~1 more fully described in Schedule "A" attached hereto and
made a part hereof and hereinatter referred to as the "Property" and shown on
the survey prepared by John T. Metzger, Peconic Surveyors, P.C., dated
September 24, 2009 and last revised December 7, 20~0 (a reduced copy of
which is attached hereto and made a part hereof and hereinafter referred to as
the "Surv~"; and .
WHEREA~, the Property is located in the A-C Zoning District of the Town
of Southold; and
WHEREAS, ti~e Property contains soils classified as Class I and Class II
worthy of conservation as identifi~ by the United States Department of
Agriculture Soil Conservation Service's Soil Survey of Suffolk County, New York;
and ' ,
WHE£EAE, 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
WHER~E, the Property is currently used for row crops; and
WHEREA...c, it is the policy of the Town of Southold (the "Town"), as
articulated in the Town's Master PIan of 1973, amended in 1986 and 1989 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 soifs, to protect the scenic, open space character of
the Town and to protect the Town's resort and acjdcultural economy; and
WHER~~, the Property in its present scenic and agricultural condition has
substantia~ and significant value as an aesthetic and agricultural resource since it
has no~ been subject t~ any development; and
WHEREAS, Grantor and Grantee recognize the value and special character
of the re~ion in which the Propertg 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 agdculbJral resource; and
WHERF__AE, 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;
~OW THER~FOR~ in consideration of Six Hundred Ten Thousand One
Hundred Two and 00/[00 Dollars ( $6[0, ~02 .00) and other good and valuable
consideration paid to the Grantor, the receipt of which is hereby acknowledged,
the Grantor does hereby grant, transfer, bergain, sell end 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 "^" annexed hereto and made a
part of this instrument.
TO HA VEAND TO HOLDs aid 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 d§ht 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 ~o 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 G.r. antor'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.
0.02___Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a municipal
corporation organized and existing under the laws of the State of New York and
is authorized under §64 of Town Law and §247 of the New York State General
Hunicipal Law' ("Ge neral 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 resour(~s.
0.03 Purpose
The parties recognize the environmental, natural, scenic and agricultural
values of the Property and have the common purpose of preserving these values
by limiting nonagricultu~l 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 Governmental Recoqnitio_r).
...........
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 Hunicipal Law §247. Similar recognition
by the federal government indudes §170(h) of the Internal Revenue Code
("IRC") and other federal statutes.
0.05 Baseline Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property am compatible with the purposes of
this Easement. ]:n order to aid in identifying and documenting the present
condition of the Property's natural, scenic, agricultural, and aesthetic resources
and otherwise to aid in 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 ProperLy 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'S). This
Baseline Documentation includes, but need not be limited to, a survey prepared
by 3ohn T. hletzger, Peconic Land Surveyors, P.C. dated September 24, 2009 and
last revised November 30, 2010 and a Phase ! Environmental Site Assessment
dated September 9, 2009 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.
0.05 Recitation
In consideration of the previously recited facts, mutual promises,
undertakings, and forbearances contained in this Development Rights Easement,
the parties agree upon it~ provisions, intending to be bound ~ it,
ARTICLE ONE
THE EASEMENT
1.01 Type
This instrument conveys a Development Rights Easement (herein called
the "Easement"). This Easement shall consist of the limitations, agreements,
covenants, use restrictions, rights, terms, and conditions recited herein.
Reference to this ~Easement" or its ~provisions" shall include any and all of those
limitations, covenants, use restrictions, rights, terms and conditions.
1.02 Definitions
"Development Rights" shall mean the permanent legal interest and right
to prohibit or restrict the use of the Property for uses or purposes consistent with
the terms of this Easement, including agricultural production as that term is
referenced in §247 of'the General Municipal Law and/or defined in Chapter 70 of
the Town Code of the Town of Southold (the "Town Code" or 'Code") and
including the production of crops, livestock and livestock products as defined in
§30~(2)(a)-(j) of the New York State Agriculture and Markets Law ("Agriculture
and Markets Law"), now or as such Laws and/or Code may be amended. No
future restrictions in said Laws and/or Code or limitation in the definitions set
forth in said Laws and/or Code shall preclude a use that is permitted under the
current law and/or Code.
"Improvement" shall mean any addition to raw land, such as structures,
f~nces, 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 home sho~s or other equine events.
"Struc~re" shall mean anything constructed or erected on or under the
ground or upon another structure or building, including walkways. Structures
shall not include trellis, post~ and wiring, farm irrigation systems, nursery mats,
Fencing used in connection with bona fide agricultural producLion, or fencing
used ~o mark the boundaries of Lhe Property, including, without limitation,
fencing to keep out predator a~irnals, including deer. Approvals for those items
listed in t~e 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.
1.04 Eff~.__qt;
This Easement shall run with the Property as an Incorporeal interest in the
Property, and shall extend to and be bindln§ upon Grantor, Grantor's ogents,
tenants, occupant~, heirs, personal representatives, successors and assigns, and
all other individuals and entities and provides Grantee with the right to
administer and enforce the Easement as provided herein. The word ~Grantor"
when used herein shall include all of tho~ pemons or entities./~y rights,
obligations, and interests herein granted to Grantor and/or Grantee shall also be
deemed granted to each and ever,/one of its subsequent agents, successors,
and assigns, and the word "Grantor~ or"Grantee" when used heroin shall include
all of those persons or entities.
Ag ,T!__C_LE__TWO
SALE
GRANTO .P,S, for Six Hundred Ten Thousand One Hundred Two and 00/I00
Dollars ($.610,1.02.00) and such other good and valuable ¢onsideraUon, herel>/
grants, releases, and conveys to Grantee this Easement, in perpetuity, together
with all right~ to enforce it. Graatee hereby ac~ept~ this Easement in perpetuit~
and undertakes to enforce it against Grantor,
AR'T[CLE,,THREE
_.
PROH.~BTTED ACTS
From and after the date of this Easement, the following acts, uses and
p~ctices shall be prohibited ~mver upon or w~in the Properht:
3._0~_Stru _cttu_ r~s
No structures may be erected or constructed on the Property except as
permitted by the Southold Town Land Preservation Committee ("Land
Preservation Committee") and other applicable provisions of the Town Code and
1.02 and 4.06 of this Easement.
3.02 Excavation and Removal of Materials; Mining_
The excavating, re-grading or filling of the Property shall be prohibited,
without the prior wdtten consent of Grantee, including but not limited to from
the Land Preservation Committee, except as may be necessary to construct and
maintain permitted structures and improvements on the Property or in
conr~ection with necessary drainage or soil conservation programs.
Mineral exploitation, and extraction by any method, including but not
limited to soil, gravel, sand and hydrocarbons, by any methods, surface or
subsurface, is prohibited.
The removal of topsoil, sand, or other materials from the Property is
prohibited, nor shall the topography of the Property be changed, except to
construct and maintain the permitted structures and improvements on the
Property and for purposes of erosion contrail and soil management, or in
connection with normal a§ricultural/horticultural activities.
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 fights are acquired into two or more parcels, in whole or
in part.
Notwithstanding this Section 3.03, upon the death of Grantor, the
underlying fee Intere~ may ~ divid~ by conve~nce of ~art~ thereof to
Grantor's executor, trustee, heirs or next of kin by will or operation of law.
The dumping or accumulation of unsightly or offensive materials including,
but not limited to trash, garbage, sawdu~, ashes or chemical waste on the
Property shall be prohibited. This prohibition shall exclude materials used in the'
normal cour~ of round agricultural practices on the Property, including
fertilization, composting and crop removal.
3.05 Siq.ns
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 ~e Property I;o control unauthorized entry or use, or (d) with the consent ol
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, wires,
pipes, wells or drainage systems (~u~ilities") on the ProperLy t~ service structures
approved pursuan~ to Section 4.05 shall be prohibited without the prior written
consen~ of the Grantee. Underground utilities must, to the extent possible, be
constructed within 30 fee~ of the centerllne of any roads or driveways, and may
be used solel~/~o service the permitted structures on the property. The Property
may be used for the creation or placement of utilities to service other adjacent
properties used in agricultural production, upon approval of the Land
Preservation Committee.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, the use of the
Property or structures on it tFor any residenUai, 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 producUon, as that term
is referenced in §247 of the General Municipal Law and/or defined in Chapter 70
of the Town Code, and including the production of crops, livestock and livestock
products as defined in r:j301(2)(a)~) of the Agriculture and Markets Law, now or
as such Laws and/or Code may be amended, shall not be considered a
commercial use. No future restrictions in said Laws and/or Code or limitation in
the definitions set forth in said Laws and/or Code shatl preclude a use that is
permitted under the current law and/or Code.
Uses, improvements and activities permitted by the Town Code now or in
the future on agricultural lands protected by a development rights easement or
other instrument, including but not limited to farmstands, shall not be considered
a commercial use. No improvements, uses or activities inconsistent with current
.or future agricultural production shall be permitted on the Property. Under no
circumstances shall athletic fields, golf courses or ranges, commercial airstrips
and helicopter pads, motorcross biking, or any other improvements or activity
inconsistent with current or futura 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 agrochemlcals such as
fertilizers, pesticides, herbicides, and fungicides) that are in accordance with
sound agricultural management practices of the Natural P, esources Conservation
Service ("NRCS").
3.09 Drainaqe
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.
The use of the acreage of this Property for purposes of calculating lot
yield oa any other Property shall be prohibitS. Grantor heret~ gmnt~ to
Grantee all existia§ deYelopment right~ (and ~ny further development right~ that
may be created th roucjh a rezoning of the Property) on the Property, except for
the right to con~truct, maintain and replace any pre-existing structure, and to
construct new structures, as such rights may be provided in Section 4.06 or
elsewhere in this Easement, and the parties agree that any other such
development righl:s shall be terminated and extinguished and may not be used or
~ransferred to any other parcels.
AR'r[CLE FO IJ.p,
GRANTOR~5 RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shatl 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.
Grantor shall have the right to use the Property in any manner and for any
purpose consistent with and not prohibited by this Easement as well as
applicable local, State, or federal law. Grantor shall have the right to use the
Property for uses, improvements and activities permitted by the Town Code, now
or in the future, on agricultural Iands 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 dght to use the Property for traditional private
recreational uses, provided such recreational uses are conducted for the personal
enjoyment of Gran~r, 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.~ .... _l_andsc_..apin§..A_~.V..!.ties
Grantor shall have the right to continue the current and/or customary
modes of landscaping, pruning and grounds maintenance on the Property as
evidenced by the documentation set forth in Section 0.05. Grantor shall have the
right to remove or restore trees, shrubs, or other vegetation when dead,
diseased, decayed or damaged or interfering with agricultural production, to thin
and prune trees to maintain or improve the appearance of the Property, and'to
mow the Property.
4.05 Aericultural Production and Activities
Grantor shall have the right to engage in all types of agricultural
proclu~on as the term is referenced in §247 of the General Municipal Law
and/or defined in Chapter 70 of the Town Code and including the production of
crops, livestock and livestock products as defined in §301(2)(a)-0) of the
Agriculture and Markets Law, now or as such Laws and/or Code may be
amended. No future restrictions in said Laws and/or Code or limitation in the
definitions set forth in said Laws and/or Code shall preclude a use that is
permitted under the current law and/or Code.
Grantor may offer "u-Pick'"operations and/or the use of a corn maze ~o
the general public, provided that such activities are conducted in conjunction
with seasonal harvests, do not interfere with agricultural production and are
othe~ise 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 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 and Improvements
A. Allowable Improvements. Grantor shall have the right to erect and
maintain the following structures and improvemenl:s on the Property, as they
may be permitted by the Town Code and subject to the approval of the Land
Preservation Committee, provided the structures are consistent with and do not
derogate from or defeat the Purpose of this Easement or other applicable laws:
(1)
Underground facilities, including existing irrigation well
shown on the survey, used to supply utilities for the use and
enjoyment of the Property or to service other adjacent
properties used in agricultural production;
(ii)
New Construct/on, including drainage improvement
structums~ provided such structures are necessary for or
accessory to agricultural production;
(iii)
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.
B. Conditions. Any allowable improvements shall protect prime
agricultural soils, agricultural production, and to the extent feasible given
considerations of agricultural production, open space and scenic vistas, and
otherwise be consisteht with the Purpose of this Easement.
]0
C. Environmental Sensitivity During Construction. The use and location
of any improvement permitted hereunder shall be consistent with the purposes
intended herein, and construction of any such improvement shall minimize
disturbances to the environment. Grantors shall employ erosion and sediment
control measures to mitigate any storm water runoff, including but not limited to
minimal removal of vegetation, minimal movement of earth and minimal
clearance of access mutes for construction vehicles.
D. Replacement of Improvements. In the event of damage resulting
from casualty loss to an extent which renders repair of any existing
improvements or improvements built or permitted pursuant to this Section 4.06
impractical, erection of a structure of comparable size, use, and general design
to the damaged structure shall be permitted in kind and within the same general
location, subject b3 the review and wdt~n approval of Grantee, pursuant to
applicable provisidns of the Town Code.
,~.07 Notice
............................................
Grantor shatl 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 AlienabiliW
Grant~r shall have the right to convey, mortgage or lease all of its
remaining interest in the Property, but only subject to this Easement. Grantor
shall promptly notify Grantee of any conveyance of any interest in the Property,
including the full name and mailing address of any transferee, and the individual
principals thereof, under any such conveyance. The instrument of any such
conveyance shall specifically set forth that the interest thereby conveyed is
subject to this Easement, without modification or amendment of the terms of
this Easement, and shall incorporate this Easement by reference, specifically
setting forth the date, office, liber and page of the recording hereof. The failure
of any such instrument to comply with the provisions hereof shall not affect
Grantee's rights hereunder.
4.09 Further Restriction
Nothing in this Easement shall prohibit or preclude Grantor from further
restricting the use, improvements or structures on the Property. Any such
further restrictions shall be consistent with and in furtherance of the general
intent and purpose of this Easement as set forth in Section 0.03.
ARTICLE FIVE
GRANTOR~S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay ali taxes, levies, and assessments and other
governmental or municipal charges, which may become a lien on the Property,
induding any taxes or levies imposed to make those payments subject, however,
to Grantor's right to grieve or contest such assessment. The failure of Grantor to
pay all such taxes, levies and assessments and other governmental or municipal
charges shall not cause an alienation of any rights or interests acquired herein by
Grantee.
5.02 Indemnification
Grantor shall indemnify and hold Grantee harmless for any liability, costs,
at~rneys' fees, judgments, expenses, charges or liens to Grantee or any of its
officers, emp)oyees, agents or independent contractors~ all of which shal[ be
reasonable in amount, arising from injury due to the physical maintenance or
condition of the Property caused by Grantor's actions or inactions, or from any'
taxes, levies or assessments upon it or resulting from this Easement, all of which
shall be considered Grantor's obligations.
5.03 Third Party CZaims
Grant~r shall indemnify and hold Grantee harmless for any liability, costs,
attorney' fees, judgment~, or expense~, chor§es or liens to Grantee or any of its
officers, employees, agents or independent contractors, all of which shall be
reasonable in amount, resulting- (a) from injury to persons or damages to
property arising from any activ~ on the ~opertw 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 arisfng from the ac-'~ of
Grantee, its officers, employees, agents, or independent contractors.
5.04 Grounds Maintenance Reouirement
_.
If Grantor leaves the Property open and does not engage in agricultural
production for t~ (2) consecutive yearn, then Grantor shall implement a Natural
Resources Conservation Plan (the "Plan") approved by Grantor (which approval
by Grantor shall not ~ unr~,~nably withheld) and by Grantee, including the
Land Preservation Committee, to maintain or restore the Property to the
condition in which it existed on the date of this Easement, as evide~ed by the
]2
documentation referred to in Section 0.0S, in order to protect the environmental,
natural, scenic and agricultural values of the Property. In the event Grantor faits
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.
^RT~CLE
GRANTE_E~3 P./GHTS
6.01 Entry and I-nspectJon
Grantee shall have the right to enter upon the Property at reasonable
times, upon prior notice to Grantor~ and in a manner that will not interfere with
Grantor's quiet use and enjoyment of the Property, for the purpose of inspection
to determine whether this Easement and its purposes and provisions are being
upheld. Grantee shall not have the dght to enter upon the Proper~"y for any
other purposes, except as provided in Section 5.04 and 6.03, or to permit access
upon the Property.
6.02._P,e~ration
In addition to Grantee's remedies under Section 5.04, Grantee shall have
the right to require the Grantor to restore the Property to the cond~on required
by this Easement and to enforce this right by any action or proceeding that
Grant~ may reamnably d~m nocesmr~. However, Grantor shall not be liable
for any changes to the Property resulting from causes beyond the Granb~r's
control, including, without limitation, fire, flood, ~o~, each movement~ wind~
weather or from any prudent action taken by the Grantor under emergency
conditions to prevent, abate, or mitigate significant inju~ to pe~ns or to the
Property or crops, livestock or livestock producl~ resulting from such causes.
·
6._~forcement Riahts of Gr.a.n_t.ee
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
Easoment is not cured ~ Grantor within tiff:aah { 15) days' writt~a notice thereof
by Grantee (which notice requirement is expressly waived by Grantor with
respect to any such ~each, default or violation which, ia Grant~'$ masonabte
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 dght at Grantor's sole cost and expense and at Grantee's
election-
(i)
To institute a suit to enjoin or cure such breach, default or violation
by temporary and/or permanent injunction,
(ii)
To enter upon the Property and exercise reasonable efforts to
terminate or cure such breach, default or violation and/or to cause
the restoration of that portion of the Property affected by such
breach, default or violation to the condition that existed prior
thereto, or
+
(iii)
To enforce any term, provision, covenant or obligation in this
Easement or to seek or enforce such other legaf 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 cum period in this Section 6.03 may be extended for a reasonable time by
Grantee if such restoration cannot reasonably be accomplished within fifteen
days.
6.04 Notice
All notices required by this Easement must be written, Notices shall be
delivered by hahd or 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 heroin, or to
such other address as Grantor may designate by notice in accordance with this
Section 6.04. Hailed notice to Grantee shall be addressed to its principal office
recited herein, marked to the attention of the Supervisor and the Town 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.
6.0..5 No Waiver
14
Grantee's exercise of one remedy or relief under this AR-I-JCLE SD( shall
not have the effect of waiving or limiting any other remedy or relief, and the
failure to exercise or the delay in exerclsing 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,
6,0.6 Extinguishment/Con.demnati.o.p
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 oi: this Easement described
in Section 0.03, extinguish or modify this Easement in accordance with applicable
law. The mere cessation of farming on the Property shall not be construed to be
grounds for extinguishment of this Easement.
If at any time the Property or any portion thereof shall be taken or
condemned by eminent domain, by the Grantee or by any other governmental
entity, then this Easement shall terminate with respect to the Prol3erty, or
portions t~ereof so taken or condemned, and the Property shall not be subject to
the limitations and restrictions of this Easement. In such event, the Grantor, ils
successors or assigns, shall not be required to pay any penalUes, but the value of
the Property shall reflect the limitations of this Easement. Any condemnation
award payable to the Grantor shall be in proportion to the value attributable to
the residual agricultural value of the Property. If the condemnation is undertaken
by an entity other than the Grantee, then the remaining portion of the
condonation award shall be payable to the Grantee in proportion to the value
attributable to the development rights transferred hereby.
·
AR'i'[CLE SEVEN
MIS~L~NEOUS
7.01 Entire_Unders~nding
This Easement contains the entire understanding between the parties
concerning its subject matter. Any prior agreement between the parties '
concerain§ it~ subject matter shall be merged into this Easement and super~ded
by it.
..7...........0..2 ........ Am.en.~m:e:m
This Easement may be amended only with the written consent of Grantee
and current Grantom and in accordance with all applicable State and Iomf law~.
Any such amendment shall be consistent with the Town.Code and any
15
regulations promulgated thereunder and with the Purpose of ~is 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 r:j170(h). The
parties agree to amend the provisions of this Easement if such amendment, shall
be necessary, to entiUe Grantors 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 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 same 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. If the Grantee ever ceases to exist, a court of competent
judsdiction may transfer this Easement to another qualified public agenc~ that
agrees to assume the responsibilities imposed by this Easement.
7.04 Severabi!i_tv
Any provision of this Easement restricting Grantor's activities, which is
determined to be invalid or unenforceable by a court shall not ~ 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 lmm the other provlslons, which shall remain enfomeable and effective.
7.,05 ......... Go.v. er. nina Law
16
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_,__0___6__ .... !__n~~_r__e_~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 it was drafted
by the other party's attorney. No alleged ambiguity in this Easement shall be
construed against the party whose attorney drafted it. ]:f any provision of this
Easement is ambiguous or shall be subject to two or more interpretations, one of
which would render that provision invalid, then that provision shall be given such
interpretation as would render it valid and be consistent with the purposes of this
Easement. Any rule of strict construction designed to limit the breadth of the
restrictions on use of the Property shall not apply in the construction or
interpretation of this Easement, and this Easement shall be interpreted broadly
to effect the purposes of this Easement as intended by the parties. The parties
intend that this Easement, which is by nature and character primarily negative in
that Grantor has restricted and limited its right to use the Property, exc.ept 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
Propertg. Grantee rrmy use images of the Property only ~or 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._0_9_Record i ng
Grantee shall record this Easement in the land records of the office of the
Clerk of the County of Suffolk, State of New York.
7.10 Headinqs
The headings, titles and subtitles herein have been inserted solely for
conveaient reference, and shall be ignored in its constru~on.
17
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has
accepted and received this Grant of Deveiopmeat Rights Easement on the day
and year set forth above.
ACKNOWLEDGED AND ACCEF:q'ED:
ESTATE OF STANLEY SAWICKI, Grantor
By: Edward ', ~r
dward S * Granb3r
ACKNOWLEDGED AND ACCEI:q'ED:
TOWN OF SOUTHOLD, Grantee
BY:
Supervisor
STATE OF NEW YORK
COUNTY OF SUFFOLK
)
) SS:
On this~~ day of ~ ' in the year 2010 before me, the undersigned,
personally appeared Edward Sawicki 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 insb~ment 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
PaTR~A L. FRLLON _ r'
Notary public, State 0I N~w Yo K
No, INFA4SIat4e .
Qualified in $~[k.{:ea~tty _
Commission Ex~ires April! ~ ~//
]8
On this ~ day of '~4z,. in the year :)010 before me, the undersigned,
personally appeared Scott A. Russell, personally known to me or proved to me
on the basis of satisfactory evidence to be the individualCs) whose name{s) is
(are) subscribed to the within Instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity{ies), and that by
his/her/their signature{s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s} acted, executed the instrument.
Notary Public
P~TP~GIA ~.
Notary Pubiic, State Of New York
No. O!
Qualified in
Commission F..xplres Al:eil 24,
19
FIDELITY NATIONAL TITLE INSURANCE COMPANY
TITLE NO, 09o7404-75583-$UFF
il ...........
..........
SCHEDULE A-I (Description)
AMENDED 12/09f!0
ALL that certain plot, piece or parcel of land, situm, lying and being at Laurel, Town of Southold, County of Suffolk and
State of New York, bounded and described as foltows:
BEGINNING at a point on the southerly side of Main Road (S.R. 25) distant South 40 degrees 03 minules 32 seconds
West, 26.19 feet from the northwesterly comer of land now or formerly of Mitchell & Theresa Wilcenski;
RUNN~G THENCE South 32 degrees 36 minutes 09 seconds East 928.77 f~ct to thc northerly side of thc Long Island.
Railroad;
THENCE along the last mentioned land the following six courses and distances:
1) South 33 deer=es 32 minutes 10 sv¢onds West, 87.47 feet to a point;
2) North 51 degrees 03 minutes 10 seconds West, 4.02 feet to a point;
3) South 33 degrees 32 minutes I0 seconds Wes~, 8.53 fcct to a point;
4) South 33 d~gr=gs 37 minutes 00 s~¢onds Wcsl, 285.58 feet to a point;
5) South 42 degrees 05 minutes 00 seconds East, 34.05 feet to a point;
6) South 33 d=grrcs 37 minut~ 00 seconds West, 240.44 feet to land now or formerly of Gian Marlo Mangi~ri;
THENCE North 33 degrees 27 minutes 54 seconds West along the last mentioned land 742.32 feet to a monument and
land now or formerly of Melinda Vitale;
THENCE North 33 degrees 03 minutes I 0 s~onds West along thc last mentioned 123.22 f~vt to a point;
THENCE North 54 degrees 17 minutes 10 seconds East 492.52 feet to a point;
THENCE North 33 degrees 03 minutes 10 seconds WesL 290.00 feet to ~he southerly side of Main Road ($.R. 25);
THENCE North 40 degrees 03 minutes :32 seconds East along the southerly side of Main Road, 91.62 feet to '~he point or
place of BEG INN lNG.
THE POLICY TO BE ISSUED under thi= commitment will ir~are the rifle to such buildings and improvements on the premises which
by law constitute real property.
FOR CONVEY~4NCING ONL Y: Together with all the right, title and inlerest of the party of th~jTrzt part, of in and to tl~e la~d lying
in the street in front of and adjoining said premtses.
SCHEDULE A- t (Description}
,.~ ~ FARM ,4 ~ LAUREL
,
...........