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HomeMy WebLinkAboutL 12657 P 876SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE T~pe of Instrument: MISCELLANEOUS - DE~D ~A~__~r of Pages: 23 Receipt Number : 11-0046464 TRANSFER TAX NUMBER: 10-19432 Distriot: 1000 D==dAmount: Recorded: At: LIBER: PAGE: Se~tlon: Bloak: 107.00 10.00 P/fAMINED AND CHARGED AS FOLLOWS $520,625.?0 the Following Fees For Above Instrument Exempt Page/Filing COE EA-CTY TP-584 Cert. Copies Transfer tax S115 00 $~ oo So oo So oo So oo TRANSFER TAX NU~BER: 10-19432 NO Handling NO N~S SRCHG NO EA-STAT~ NO Nota~.ion NO RPT NO C~. Pres Fe~s Paid THIS PA~ IS A PART OF THE INSTRUMENT THIS IS NOT A BILL JUDITH A. PASCALE County Clerk, Suffolk County 04/22/2011 09:54:54 AM D00012657 876 Lot: 010.004 Exempt $20.00 NO S15.00 NO $0.00 NO $0.00 NO $30.00 No $0.00 NO $19o.oo i, Number of pag~ This document will be public record, Please remove all Social Security Numbers prior to recording. ~ / Mortgage Instrument Deed / Mortgage Tax Stamp RECORDED 2011 Rpr 22 09:54:54 )'LOITN fi. PRS~LE CLER~ 0F ~FOLK L P 876 0T~ 10-I96~2 Recording I Filing Stamps Page I Filing Fee Handling TP-584 Notation EA-52 17 (Count) EA-5217 (State) R.P.T.S.A. Comm. of Ed. Affidavit Certified Copy NYS Surcharge I 4 [ Dist. R~al Property Tax Service Agency Verifica~on 15. 00 Sub Total "~'~008671 'zoo0 lo'yoo xooo oa_ooo4 Montage Amt. 1. Basic Tax 2. AddMonal Tax Sub Total Spec.lA,it. Spec. tAdd. TOT. MTO. TAX Dual Town __ Dual County ...... Held for Appointment ~ Transfer Tax ~ Mansion Tax The propegy cowmd by this mortgage is or wilt be imFtoved by a one or two family dwelling only. YES or NO · If NO, se~ appropriate tax clause on page #~ of this insu'umenc Consideration Amount $ CPF Tax Due $ Satis£acfi°ns/Diachargel~ES/cR~loeaSRI;skis' I~°RETURNI~Y OTo~ners Mail'ng Address , Vacant Land Mail to: J't~:lith A'. Pascale, St~'ffolk County ClerkI ? I Comp,any Infmnnation 310 CerRer DriYe, Riverhead, NY 11901 www. suno,~countyny, gov/oerK I'ntle# Suffolk County ReC°rdin & Endorsement PS e - (SPECIFY TYPE OF [I~STRUMENT) ('o O~ ~ Ln9 t rJg. ~, n~_,_~.../~49~, LLC.~ The premises herein is simate~ in SUFFOLK COUNTY, NEW YORK. TO l, the TOWN of ~fio'~} C~ or HAMLET of BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING. GRANT OF DEVELOPMENT RIGHTS EAS__. EMENT THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on tri~,~cday of ~.~.~, 2011 at Southold, New York. The parties are 6900 WICKHAH AVENUE, LLC, with an address of 6900 Wickham Avenue, [qattltuck, NY 11952, (herein called =Grantor~), and the TOWN OF SOUTHOLD, a municipal corporation, having its principal office at 53095 Hain Road, P.O. Box 1179, Southold, New York 11971 (herein called ~Grantee~). INTRODUCTION WHEREAS, Grantor is the owner in fee simple of certain real property located in the Town of Southold, Suffolk County, New York, Identified as part of SCTM #111BBIIIBBIIIBIB0.1, more fully described in SCHEDULE ~A# attached hereto and made a part hereof and hereinafter referred to as the "Property" and shown on the survey dated December 14, 2010 and last revised i~larch 28, 2011 prepared by Peconic Surveyors, P.C., (a reduced copy of which is attached hereto and made a part hereof and hereinafter referred to as the "Survey"); and WHEREAS, the Property is located in the A-C Zoning District of the Town of Southold; and WHEREAS, the Property contains soils classified as Class T and Class !! 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 conUnue using the Property for agricultural production as defined in this Easement; and WHEREAS, the Property is currently used for horticulture; and WHEREAS, it is the policy of the Town of Southold (the ~Town"), as articulated in the Town's Haster Plan of 1973, amended in 1986 and 1989 as adopted by the Town Board, Town of Southold, and §272-a of the New York Town Law ("Town Law~) to protect environmentally sensitive areas, preserve prime agricultural soils, to protect the scenic, openspace 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 substanUal 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 ts 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 FTVE HUNDRED TWENTY THOUSAND SIX HUNDRED TWENTY-FIVE THOUSAND AND 70/100 DOLLARS ($520,625.70) 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 b!nding upon and shall restrict the premises shown and designated as the Property herein, more particularly bounded and described on Schedule ~A" annexed hereto and made a part of this instrument. TO HAVE AND TO HOLD said Development Rights Easement and the rights and interests in connection with it and as hereinafter set forth with respect to the Property unto the Grantee, its successors and assigns forever, reserving, however, for the direct use and benefit of the Grantor, its legal representatives, successors and assigns, the exclusive right of occupancy and of use of the Property, subject to the limitations, con.dition, covenants, agreements, provisions and use restriction hereinafter set forth, which shall constitute and shall be servitudes upon and with respect to the PrOl:)erty. The Grantor, for Itself, and for and on behalf of its legal representatives, successors and assigns, hereby covenants and agrees as follows: {LOt Grantor's Warran~ 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, 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 and is authorized under §64 of Town Law and §247 of the New York State General Hunicip.al Law ~'General Municipal Law") to acquire fee tiUe 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 rces. 0.03 Puroose The parties recognize the environmental, natural, scenic and agricultural values of the Property and have the common purpose of preserving these values. This instrument is intended to convey a Development Rights Easement on the Property by Grantor to Grantee, exclusively for the purpose of preserving its character in perpetuity for its environmental, natural, scenic and agricultural values by preventing the use or development of the ProperLy for any purpose or in any manner contrary to the provisions hereof, in furtherance of federal, New York State and local conservation policies. Governmental Recoanition 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 §:t70(h) of the [nternal Revenue Code and other federal statutes. 0.05 Baseline Documentation Grantee acknowledges by acceptance of this Development Rights Easement that present uses of the Property are compatible with the purposes of this Easement. lin order to aid In identifying and documenting the present condition of the Property's natural, scenic, agricultural, and aesthetic resources and otherwise to aid in identifying and documenting the Property's agricultural values as of the date hereof, to assist Grantor and Grantee with monitoring the uses and activities on the Property and ensuring compliance with the terms hereof, Grantee has prepared, with Grantors cooperation, an inventory of the Property's relevant features and conditions Cthe ~Baseline Documentation"). This Baseline Documentation includes, but need not be limited to, a survey dated December 14, 2010 and last revised March 11, 2011 prepared by Peconic Surveyors, P.C., the Phase I Environmental Site Assessment prepared 3anuary 21, 2011 and last revised February 15, 2011 by Nelson, Pope & Voorhis, LLC, both on file with the Town Land Preservation Department. Grantor and Grantee acknowledge and agree that in the event a controversy arises with respect to the nature and extent of the Grantors uses of the Property or its physical condition as of the date hereof, the i)artles shall not be foreclosed from utilizing any other relevant or material documents, surveys, reports, photographs or other evidence to assist in the resolution of the controversy. 0.06 Recitation In consideration of the previously recited facts, mutual promises, undertakings, and forbearances contained In this Development Rights Easement, the parties agree upon its provislons, intending to be bound by it. ARTZCLE ONE THE_EASEMENT 1.01 Tvoe This instrument conveys a Development Rights Easement (herein caiied the "Easement"). This Easement shall consist of the llmitatlons, agreements, covenants, use restrictions, rights, terms, and conditlons recited herein. Reference to this ~Easement~ or its ~provislons" 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 4 and right to prohibit or restrict the use of the Proper~ for uses or purposes consistent with the terms of this Easement, including a§rlcultural production as that term Is presently referenced in §247 of the General Hunicipal 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 livesbock products as defined in §301(2)(a)-U) of the New York State Agriculture and Harkets Law (~Agriculture and Harkets Law~), now or as said §301(2)(a)-(J) may be amended, provided said amended provisions are inherently similar in nature to those crops, livestock and livestock products included as of the dabe of this Easement. No future restrictions in said laws and/or Code or limitation in the definitions set fortfl in said ~aws and/or Code shall preclude a use U3at is permitt~l under the current law and/or Code, ~Zmprovement" shall mean any addition to raw land, such as structures, fences, wells or drainage. =Rlding 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 evenbs. '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 roads, 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. ;t.03 Duration This Easement shall be a burden upon and run with the Property in perpetuity. This Easement shall run with the Property as an Incorporeal Interest in the Property, and shall extend to and be binding upon Grantor, Grantors agents, tenants, occupants, heirs, personal representatives, successors and assigns, and all other individuals and entities and provides Grantee with the right to administer, manage and enforce the Easement as provided herein. The word ~Grantor" when used herein shall include all of those persons or entities. Any rights, obligations, and interests herein granted to Grantor and/or Grantee shall also be deemed granted to each and every one of its subsequent agents, successors, and assigns, and the word "Grantor" or ~Grantee" when used herein shall Include all of those persons or entities. AFtTZCLE TWO SALE GRANTOR, for F~VE HUNDRED TWENTY THOUSAND SiX HUNDRED TWENTY-FZVE THOUSAND AND 70/100 DOLLARS ($520,625.70) 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. AR-DC_J_E THREE PROHZBITED 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 Section [.02 and Section 4.06 of this Easement. 3.02 Excavation and Removal of Materials: Ninine 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. f41neral exploitation, and extraction of any mineral, including but not limited to soil, gravel, sand and hydrocarbons, by any method, surface or subsurface, ts prohibited. The removal of topsoil, sand, or other materials from the Property is prohibited, nor shall the topography of the Property be changed, except in connection with normal agriculturaL/horticultural activities, all of which shall require the prior written consent of Grantee, including but not limited to from the Land Preservation Committee. 3.03 Subdivision Except as provided herein, the Property may not be further subdivided pursuant to Town Law §§265, 276 or 277 or § 335 of the Real Property Law, as they may be amended, or any other applicable State or local law. ~Subdivision" shall include the division of the Property from which the development rights are acquired into two or more parcels, in whole or in part. 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 Dumoin_a The dumping or accumulation of unsightly or offensive materials Including, but not Ilmtted 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 Slqns The display of signs, billboards, or advertisements shall be prohibited, except signs whose placement, number, and design do not significantly diminish the scenic character of the Property and only for any of the following purposes: (a) to state the name of the Property and the names and addresses of the occupants and the character of the business conducted thereon, (b) to temporarily advertise the Property or any portion thereof for sale or rent, (c) to post the Property to control unauthorized entry or use, or (d) with the consent of the Grantor, to announce Grantee's easement. Signs are subject to regulatory requirements of the Town. 7 3.06 Utilities The creation or placement of overhead utility transmission lines, utility poles, wires, pipes, wells or drainage systems (~utilitles~) 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. 3.O? Prohibited Uses Except for uses specifically permitted by t~ts 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 '§30:[(2)(a)-(J) of the Agriculture and Markets Law, now, or as said in §: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, shall not be considered a commercial use. Uses, Improvements and activities permitted by the Town Code now or in the future on agricultural lands protected by a development rights easement or other instrument, Including but not limited to farm stands, shall not be considered a commercial use. No improvements, uses or activities inconsistent with current agricultural production shall be permitted on the Property. Under no circumstances shall athletic fields, golf courses or rangest 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. 3.085oil 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 R limitation, the use of agrochemicals such as fertilizers, pesticides, he~icldes, and fungicides) that are in accordance with sound agricultural management practices of the Natural Resources Conservation Service ("NRCS'). 3.09 Drainaee 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 Develooment Ri_ahts The use of the acreage of this Property for the purposes of calculating lot yield on any other Property shaft be prohibited. Grantor hereby grants to Grantee all existing development rights (and any further development rights that may be created through a rezoning of the Property) on the Property, except for the right to construct, maintain and replace any pre-existing structures, and to construct new structures, as such rights may be provided in Section 4.06, and the parties agree that any other such development rights shall be terminated and extinguished and may not be used or transferred to any other parcels. AR _TT~.CLE FOUR GRANTOR'S R/G H'IS 4.01 O. wnershi0 SubJect to the provisions of AR'rZCLE THREE, Grantor shall retain all other rights of ownership in the Property, some of which are more particularly described In this ART[CLE FOUR. 4.02___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 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 producUon or activities. Grantor shall also have the right to use the Property for traditional private recreational uses, provided such recreational uses are conducted for the personal enjoyment of Grantor, are compatible with farming, and are otherwise consistent with and do not derogate from or defeat the Purpose of this Easement or other applicable law. These uses shall not be offered or provided for the commercial . purposes, including the commercial gain of Grantor or others. 4.04 Landscaoinq Activities Grantor shall have the right to continue the current and/or customary modes of landscaping, pruning and grounds maintenance on the Property as evidenced by the documentation set forth in Section 0.05. Grantor shall have the right to remove or restore trees, shrubs, or other vegetation when dead, diseased, decayed or damaged or interfering with agricultural production, to thin and prune trees to malntaln or improve the appearance of the Property, and to mow the Property. 4.05 Aoricultural Production and AcUvitles Grantor shall have the right to engage in all types of agricultural production as the term is presently referenced in §247 of the General Municipal Law and/or defined in Chapter 70 of the Town Code, now, or as said Chapter 70 may be amended and including the production of crops, livestock and livestock products as defined in §301(2)(a)-fJ) of the Agriculture and Markets Law, now, or as said §301(2)(a)-0) may be amended, 0rovtded 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 consistent with and do not derogate from or defeat the Purpose of this Easement or other applicable Iaws. 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 and :[morovements A. Allowable Improvements. Grantor shall have the right to erect and maintain the following structures and improvements on the Property, as may be permitted by the Town Code and subject to the approval of the Land Preservation Committee, provided the improvements are consistent with and do not derogate from or defeat the Purpose of this Easement or other applicable laws: (i) Underground facilities used to supply utilities solely for the use and enjoyment of the Property; (ii) Greenhouses and one truck body existing on the Property, as shown on the Survey; use of the truck body on the north side of the Property adjacent to the greenhouse shall be limited to storage of flower pots and trays or storage of similar products related to Grantor's agricultural use; (iii) Construction of new structures, provided such structures are necessary for or accessory to ag ricultural production; (iv) 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 11 prime agricultural soils, agricultural produc~Jon, open space and scenic vistas, and otherwise be consistent with the Purpose of this Easement. C. Environmental Sensitivity During Construction. The use and location of any improvement permitted hereunder shall be consistent with the purposes intended herein, and construction of any such improvement shall minimize disturbances to the environment. Grantors shall employ erosion and sediment control measures to mitigate any storm water .runoff, including but not limited to minimal removal of vegetation, minimal movement of earth and minimal clearance of access routes for construction vehicles. D. Replacement of :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 to the review and written approval of Grantee, pursuant to applicable pro¥isions of the Town Code. 4.07 Notice Grantor shall notify Grantee, in writing, before the construction of any permanent or temporary structures as permitted In Section 4.06 herein and shatl 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.Q8 Alienability Grantor shall have the right to convey, mortgage or lease all of [ts 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, Ilber 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. 17 ~.0.9 Further Restriction Nothing in this Easement shall prohibit or preclude Grantor from further restricting the use, iml~rovements 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. AR']'[CLE FZVE GRANTOR'S OBLtGA'r]o NS _5_.0:[ Taxes and Assessments Grantor shall continue to pay all taxes, tevles, and assessments and other governmental or municipal charges, which may become a lien on the Property, including any taxes or levies imposed to make those payments subject, however, to Grantor's right to grieve or contest such assessment. The failure of Grantor to pay all such taxes, levies and assessments and other governmental or municipal charges shall not cause an alienation of any rights or interests acquired herein by Grantee. 5.02_~[ndemnification Grantor shall Indemnify and hold Grantee harmless for any liability, costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or any of its officers, employees, agents or independent contractors, ail of which shall be reasonable in amount, arising from injury due to the physical maintenance or condition of the Property caused by Grantor's actions or inactions, or from any taxes, levies or assessments upon it or resulting from this Easement, all of which shall be considered Grantor's obligations. 5.03 Third 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, all of which shall be reasonable in amount, resulting: (a) from injury to persons or damages to property arising from any activity on the Property; and (b) from actions or claims of any nature by third parties arising out of the entering into or exercise of rights under this Easement, excepting any of those matters arising solely from the acts of Grantee, its officers, employees, agents, or independent contractors. 5.04 Grounds Haintenance Reauirement Jif Grantor leaves the Property open and does not engage in agricultural production for two (2) consecutive years, then Grantor shall implement a Natural Resources Conservation Plan (the ~Plan') approved by Grantee, including the Land Preservation Committee, to maintain or restore the Property to the condition In which it existed on the date of this Easement, as evidenced by the documentation referred to in Section 0.05, in order to protect the environmental, natural, scenic and agricultural values of the Property. in the event Grantor fails to comply with the provisions of this section after reasonable written notice is given to Grantor by Grantee, then, in addition to all other remedies set forth herein, Grantee or its agents are hereby authorized to enter upon the Property to implement the Plan, and to recover the costs of such implementation from Grantor, as provided in Section 5.02 and Section 6.03. ARTICLE SIX .GRANTEE'S R/GHTS 6.0.1~E. _ntrv and Insoection 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 right to enter upon the Property for any other purposes, except as provided In Section 5.04 and 6.03, or to permit access upon the Property. ,6.02 Restoration In addition to Grantee's remedies under Section 5.04, Grantee shall have the right to require the Grantor to restore the Property to the condition required by this Easement and to enforce this right by any action or proceeding that Grantee may reasonably deem necessary. However, Grantor shall not be liable for any changes to the Property resulting from causes beyond the Grantor's control, including, without limitation, fire, flood, storm, earth movement, wind, weather or from any prudent action taken by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to persons or to the Property or crops, Ilvest0ck or livestock products resulting from such causes. 6.03 Enforcement Riehts 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 limitaUon 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 Grantors part to be observed or performed pursuant to this Easement Is not cured by Grantor within ten (10) days' written notice thereof by Grantee (which notice requirement is expressly waived by Grantor with ~pect 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, 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 obligaUon 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 unde'r 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 10 days. 6.04 Notice All notices required by this Easement must be written. Notices shall be delivered by hand or registered or certified mail, return receipt requested, with sufficient prepaid postage affixed and with return receipts requested. Hailed noUce 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 alter the date of its mailing. 6.05 No Waiver Grantee's exercise of one remedy or relief under this AR'I'~CLE SIX shall not have the effect of waiving or limiting any other remedy or relief, and the failure to exercise or delay In exercising any remedy shall not constitute a waiver of any other remedy or relief or the use of such other remedy or relief at any other time. Exfln_oulshment/Condemnation At the mutual request of Grantor and Grantee, a court with jurisdiction may, if It determines that condiUons surrounding the Property have changed so much that it becomes Impossible to fulfill the Purpose of this Easement described in Section 0.03, extinguish or · modify this Easement in accordance with applicable law. The mere cessation of farming on the Property shall not be construed to be grounds for extinguishment of this Easement. If at any time the Property or any portion thereof shall be taken 1R or condemned by eminent domain, by the Grantee or by any other governmental enl~ty, then this Easement shall terminate with respect to the Property, or portions thereof so taken or condemned, and the Property shall not be subject to the limitations and restrictions of this Easement. In such event, the Grantor, its successors or assigns, shall not be required to pay any penalUes, but the vatue of the Property shall reflect the limitations of this Easement. Any condemnation award payable to the Grantor shall I~e in proportion to the value attributable to the residual agricultural value of the Property. If the condemnation is undertaken by an entity other than the Grantee, then the remaining portion of the condemnation award shall be payable to the Grantee in proportion to the value attributable to the development rights transferred hereby. ARTICLE SEVEN MISCELLANEOUS 7.01 Entire Understandine This Easement contains the entire understanding between the parties concerning its subject matter. Any prior agreement between the parties concerning Its subject matter shall be merged into this Easement and superseded by it. 7.02 Arrtendment This Easement may be amended only with the written consent of Grantee and current Grantors and in accordance with all applicable State and local laws. Any such amendment shaU be consistent with the Purpose of this Easement and shall comply with the Town Code and any regulations promulgated thereunder and with the Purpose of this Easement, and shall be duly recorded. This Easement is made with the intention that it shall qualify as a Conservation Easement in perpetuity under Internal Revenue Code §lT0(h). The parties agree to amend the provisions of this Easement if such amendment shall be necessary, to entitle Grantors to meet the requirements of §:t70(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 17 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. [n addition ~o 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. ]~f 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. 7~34 Severabilltv Any provision of this Easement restricting Grantor's activities, which is determined to be invalid or unenforceable by a court shall not be invalidated. /nstead, that provision shall be reduced or limited to whatever extent that court determines will make it enforceable and effective. Any other provision of this Easement that Is determined to be invalid or unenforceable by a court shall be severed from the other provisions, which shall remain enforceable and effective. 7.05 GovernincLl_aw 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, interpret~tlon, breach, violation and 13erformance. 1R 7.06 ][nteroretatio 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. :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 affect the purposes of this Easement as intended by the parties. The parties intend that this Easem.ent, which is by nature and character primarily negative in that Grantor has restricted and limited its right to use the Property, except as otherwise recited herein, be construed at all times and by all parties to effectuate its purposes. 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 Prope~y, or to use images of the Property. Grantee may use images of the Property only for non-commercial reporting of this Easement. 7.0~ Warranties The warranties and representations made by the parties in this Easement shall survive its execution. 7.09 Recordin_e 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.]0 Headin_es The headings, titles and subtitles herein have been inserted solely for convenient reference, and shall be ignored in its construction. IN WTTNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted and received this Grant of Development Rights Easement on the day and year set forth above. ACKNOWLEDGED AND ACCEPTED: 6900 W[~(HAM AVENUE, LLC By: Richard T. Gtrards, Managing Member ACKNOWLEDGED AND ACCEPTED: TOWN OF $OUTHOLD, Grantee Supe~isor STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: On this'}O day of¥'n~rc~, in the year ~:) }~fore me, the undersigned, personally appeared SCOFF A. RUSSELL personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(les), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: On this ";->% day of V1C¥ORIA CNARC~K Nola~y P[,~ic. Stara o~ N~ Y~,~ NO, 4ar~o4~! / Oq,mJt~ In Sullol~ Coun~ i f~ in the year'E)[ before me, the undersigned, personally appeared Richard T. Girards personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(les), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, e~cecuted the Instrument. ~ VICTORIA GHARCZUK · Notary Public ou~iea~n S~k o=.~ l ~ : .... g Peconic Abstract, Inc, Title No.: 641-S.03820 Amended 3~'11Vll Schedule A Description - Develor~ment Rights Easement Area ALL that certain plot, piece or parcel of land, situate, lying and being at Mattituck, in the Town of Southold, County of Suffolk and State of New York, being bounded and described as follows: BEGINNING at ~ monument on the southeasterly side of Wlckham Avenue (Old Middle Road) where same Is intersected by the southweste~y side of lands now or formerly of the County of Suffolk; RUNNING THENCE from said monument along said land, Souf:h 35 degrees 38 minutes 30 seconds East, 580.00 feet to a monument and other land now or formerly of the County of Suffolk; RUNNING THENCE from said monument along said land; South 54 degrees 21 minutes 30 seconds West, li97.21 feat to a monument and land now or formerly of Anthony T. Krupski and wife; RUNNING THENCE from said monument and along said land, NoAh 34 degrees 46 minutes 10 seconds West, 356.07 feet; RUNNING THENCE North 55 degrees 17 minutes 26 seconds IL-'ast, 253.33 feet; RUNNING THENCE North 34 degrees 59 minutes 40 seconds West, 297.66 feet to the southeasterly side of Wickham Avenue (Old Middle Road); THENCE along the southeasterly side of Wickham Avenue (Old Middle Road) 441.13 feet to a monument first above mentioned and the Fmint or place of BEGINNING.