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.