Loading...
HomeMy WebLinkAboutL 12668 P 570SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Ty~e of Inskrument: EAS~ Number of Pages: 28 Rece.~pt Nm-~e= : 11-0091902 TRANSFER TAX NUMBER: 11-01185 + District: 1000 Deed Amount: Recorded: At: LIBER: PAGE: Section: Block: 054.00 0'~.00 EXAMINED AND CHARGED AS FOLLOWS $1,812,075.00 04:01:59 PM D00012668 570 Lot' 021. 007 Received the Following Fees For A~ove Instrument Exempt Page/Filing $140.00 NO Handling COE $5.00 NO NYS SRCHG TP-584 $5.00 NO Notation C~rt. Copies $0.00 NO aPT Transfer tax $0.00 NO Cc~a. Pres Fees Pai~ TRANS~ TAX NUMBER: 11-01185 THIS PAGE IS A PART OF THE INSTRUMENT THIS ZS NOT A BILL $2O.OO $z5.oo $o.oo $30.00 o.oo $215.00 Exempt NO NO NO NO NO JUDITH A. PASCALE County Clerk, Suffolk County 4 · ', Number of pages This document will be public record. Please remove all Social Security Numbers Deed I Mortgage Irts~mcnt · · , I~CORDED 2011 PI~ 16 04:01:55 PM ,}LOITH R, PRSC~E CL~K OF ~0~ eO~TP P ~0 DTI 11-01185 Page / Filing Fee Handling ............. {~ _~_00 , TP-584 _ ,. Notation EA-52 17 (County) __. EA-5217 (State) R.P.T,S.A. Comm. of Ed, Affidavit Certifi~ Copy Other 4-J Dist../~OD-- Real Propexty Tax Service Agency Verification Sub Total __. ." 11017210 tooo os4oo o7oo o=1oo? ~ Satisfactions/Diseharges/R¢leas~ List Pro~ Owners Mailing Addrns RECORD & RET~ TO: //7~ /t/ V' / / ~ 7/ Mortgage Amt. l, Basic Tax 2. Additional Tax Sub Total _. .... Sl~c.lAssic or Spec. 1Add. _. __ TOT, MI'G. TAX __ _. Dual Town .~_ Dual County ._ Held for Appointment Transfer Tax Mans'ion Tax The property covered by this mortgage is or will bo improved by a one or two family dwelling only. YES. . or NO If NO, sce appropdatc tax claus~ on page #~~_ of this instrument. Community Preservatio d Consideration Am~~". CPF Tax Duc $ ~ Improv~, , Vacant Land T~ lb TD Mail to: Judith A. Pascale, Suffolk County Clerk 310 Center Drive, Riverhead, NY 11901 www. suffolk cou ntyny, g ov/cle rk ' Suffolk'Coun Title Corn Information & Endorsement P: e -+- P_~(-~. ,-L_' .~ .~.. "~, -~"'~ =g.e'~.e?W~ {~F~U~'Y "i'VE OF ~STR .............. ~-~~~ oF ~az~ .~, ~~4~ ~ ~ pm~ses heroin is si~ated in -~s~~~....~~ac ~s~ ~ ~~_~y s~~ co~, ~w vo~. ............. ~~_l....or .$~~. x. ~ ~~oE ............ ' ......... ................. . ............ or ~ ~ ..... .__~F~~ .. . . ............. . .............. BO~ 6 ~U 8 MUST BE ~ED OR P~ ~ B~CK ~K O~Y P~OR ~ ~O~~G OR F~G. .... made by: G.~N_T OF DEVELOPMENT RIGHTS EASEMENT THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT is made on the ~~ day of August, 201! at Southold, New York. The parties are ~loseph A. Conway, 6005 Herren Lane, Southold, New York :I.:L97:L individually and as Co-Executor of the ESTATE OF ]ULIA O. CONWAY, and Robert .1. Conway, 11527 Savannah Lakes Drive, Pardsh, Florida 34219 as Co-Executor of the ESTATE OF ]UI_I:A D. CONWAY, as to 50% interest, and Joseph A. Conway, 6005 Herren Lane, Southold, New York !!97~ and Robert 3. Conway, :[[527 Savannah Lakes Drive, Parrish, Florida .342~9 as Co-Trustees of the Testamentary Trust of .loseph FI..Conway, as to 50% interest (herein collectively cal~ed "Grantor"), and the TOWN OF SOUTHOLD, a municipal corporation, having its principal office at 5:3095 Main Road, P.O. Box :t:t7g, Southold, N~w Y~Jrk :L 197:t (herein called "Grantee"). INTRODUC'r[ON WHEREAS, Grantor is the owner in fee simple of certain real · property located, in the Town of $outhold, Suffolk County, New York, identified, as part of SC'DM #~.4 (formerly known as SCTM #~.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 prepared by Peconic Surveyors, P.e., dated August 1, 2001 and last revised June 3, 201~. (a reducod copy of which is attached hereto and made a part hereof and hereinafter re~rred to as the "Survey"); and WHEREAS, the Property is located in the A-C Zoning District of the Town of $outhold; and WHEREAS, the Property contains soils classified as Class ! and Class :[! worthy of conservation as identified by the United S~ates Department of Agriculture Soil Conservation Service's Soil Survey of Suffolk County, New York; and . WHEREAS, the Property is part of the New York State Agricultural District # 1, and the Grantor wishes to continue using the Property for agricultural production as defined in this Easement; and , WHEREAS, the Property is currently used for' sod production; and WHEREAS, it is the policy of the Town of Southold (the "Town"), as articulated in the Town's Master Plan 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 a~ricultural soils, to protect the scenic, open space character of the Town and to protect the Town's resort and a§ricultural economy; and WHEREAS, the Property in its present scenic and agricultural condition has substantial and significant value as an aesthetic and agricultural resource since it has not been subject to any substantial development; and WHEREAS, Grantor and Grantee recognize the value and special character of the region in which the Property is located, and Grantor and Grantee have, in common, the purpose and objective of protecting and conserving the present state and inherent, tan§ible and intan§ible 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 Proper~ while pormittin§ compatible uses thereof; NOW THEREFORE, in consideration of ONE M]~LL[ON E]~GHT HUNDRED TWELVE THOUSAND SEVENTY-F:[VE AND 00/100 DOLLARS ($1,8~2,075.00) and other good and valuable consideration paid to the Grantor, the receipt of which is her. eb¥ acknowledged, the Grantor does hereby grant, transfer, bargain, sell and convey to the Grantee a Development Rights Easement, in gross, which shall be binding upon and shall restrict the premises shown and designated as the Property herein, more particularly bounded and described on Schedule "A" annexed hereto and made a part of this instrument. TO HAVE AND TO HOLD said Development Rights Easement and the rights and interests in connection with it and as hereinafter set forth with respect to the Property unto the Grantee, its successors and assigns forever, reserving, however, for the direct use and benefit of the Grantor, its legal representatives, successors and assigns, the fee title to the property, and the exclusive right of occupancy and of use of the Property, subject to the limitations, condition, covenants, agreements, provisions and use restrictions hereina~er set forth, which shall constitute and shall be servitudes upon and with respect to the Propert¥. The Grantor, for itself, and for and on behalf of its legal representatives, successors and assigns, hereby covenants and agrees as follows: ~.0! Grantor's Warranty Grantor warrants and represents to the Grantee that Grantor is the owner of the Property described in Schedule A, free of any mortgages or liens, and possesses the right to grant this easement. 0.02 Grantee's Status Grantee warrants and represents to Grantor that Grantee is a municipal corporation organized and existing under the laws of the State of New York State and is authorized under §64 of Town flaw and §247 of the New York State General Municipal Law (~General rvlunicipal Law") to acquire fee title or lesser Interests in land, including development rights, easement, ¢ovenant~, and other contractual rights which may be necessary or desirable for the preservation and retention of agricultural lands, open spaces and natural or scenic resources. 0.03 Puroose _ The parties recognize the environmental, natural, scenic and agricultural values of the Property and have the common purpose of preserving these values by limiting nonagricultural uses of the Property. This instrument is intended to convey a Development Rights Easement on the Property by Grantor to Grantee, exclusively for the purpose of preserving its character in perpetuity for its environmental, natural, scenic and agricultural values by preventing the use' or development of the Property for any purpose or in any manner contrary to the provisions hereof, in furtherance of federal, New York State and local conservation policies. 0.04 Governmental Recoonition New York State has recognized the importance of private efforts to preserve rural land in a scenic, natural, and open condition through conservation restrictions by the enactment of General Municipal Law §247. Similar recognition by the federal government includes §170{h) of the Internal Revenue Code ("IRC") and other federal statutes. 0.05 B_a_s_e_lj__n.e Doc u m e nt ation Grantee acknowledges by acceptance of this Development Rights Easement that present uses of the Property are compatible with the purposes of this Easement. In order to aid in identifying and documenting the present condition of the Property's natural, scenic, agricultural, and aesthetic resources and otherwise to aid in identifying and documenting the Property's agricultural values as of the date hereof, to assist Grantor and Grantee with monitoring the uses and activities on the Property and ensuring compliance with the terms hereof, Grantee has prepared, with Grantor's cooperation, an inventory of the Property's relevant features and conditions (the "Baseline Documentation"). This Baseline Documentation includes, but need not be limited to, a survey dated August 1,200~, last revised 3une 3, 2011 prepared by Peconic Surveyors, P.C., a Phase I Environmental Site Assessment dated December 13, 20[0 by Cashin Technical Services, [nc., a Phase I! Subsurface Soils [nvestigation dated Nay ]. 1, 20]. 1 by Cashin Technical Services, Inc.; correspondence dated 3uly 27, 201[ from Greg Menegio of Enviroscience Consultants, Inc. to ~loseph Conway regarding soil remediation performed at the Property, and an aerial photograph dated 2004. 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, ~:he parties shall not be foreclosed from utilizing any other relevant or material documents, surveys, reports, photographs or other evidence to assist in the resolution of the controversy. 0.06 Recitation Zn consideration of the previously recited facts, mutual promises, undertakings, and forbearances contained in this Development Rights Easement, the part[es agree upon its provisions, intending to be bound ~y it. ARTICLE ONE THE EASEMENT 1.01 Type This instrument conveys a Development Rights Eas,ement (herein called the "Easement"}. This Easement shall consist of the limitations, agreements, covenants, use restrictions, rights, terms, and conditions recitod herein. Re~erence to this "Easement" or its "provisions" shall include any and all of those limitations, covenants, use restrictions, rights, terms and conditions. 1.D2 Definitions "Development Rights" shall mean the permanent legal interest and right to prohibit or restrict the use of the Property for uses or purposes consistent with the terms of this Easement, including agricultural production as that term is presently referenced in §247 of · the General Municipal Law and/or defined in Chapter 70 of the Town Code of the Town of Southold (the "Town Code" or "Code") now, or as said Chapter 70 may be amended, and including the production of crops, livestock and livestock products as defined in §301(2)(a)-(j) of the New York State Agriculture and Markets Law (~Agdculture and Markets Law"), now, or as said §301(2)(a)-(j) may be amended, provided said amended provisions are inherently similar in nature to those crops, livestock and livestock products Included as of the date of this Easement. 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, ~ences, wells or drainage. "Riding Academy" shall mean a business use of a lot for any of the folfowtng purposes' the letting of horses for hlre to ind~vlduals or groups whether supervised or unsupervised, horseback riding instruction or the holding of hor~e shows or other equine even~. "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 pre*dator anima~ls, including deer. Approvals for those items listed in the preceding sentence shall be as required by applicable provisions of the Town Code. ...1.............0......3... .......... P.u...r..a..t...!.o.n..;. ...... ....N...o.......n....,....H.e..r..g.e...r.. This Easement, which easement shall not merge with the fee but shall remain as a good and valid easement, separate and apart from any other interest of the Grantee, and is to remain and continue as an existing and enforceable e~sement, shall be a burden upon and run with the Property in perpetuity. 1,0_4 ._ E ff_e_ct_ This Easement shall run with the Proper~y as an incorporeal ,, interest in the Proper~y, and shall extend to and be binding upon Grantor, Grantor's agents, tenants, occupants, heirs, personal representatives, successors and assigns, and all other individuals and entities and provides Grantee with the right to administer, manage and enforce the Easement as provided herein. The word "Grantor" when used herein shall include all of those persons or entities. Any rights, obligations, and interests herein granted to Grantor and/or Grantee shall a/so be deemed granted to each and every one of its subsequent agents, successors, and assigns, and the word ~Grantor" and/or ~Grantee" when used herein shall include all of those persons or entities. ARTICLE TWO _SALE GRANTOR~ for ONE MILLION EIGHT HUNDRED TWELVE THOUSAND SEVENTY-FIVE AND 00/~00 DOLLARS ($1,812,075.00) and such other good and valuable consideration, hereby grants, releases, and conveys ~o Grantee this Easement, in perpetuity, together with all rights to enforce it. Grantee hereby accepts this Easement in perpetuiW, and undertakes to enforce it against Grantor. AR'I'[CLE THREE ............................................................................................ PROHIBITED ACTS From and after the date of this Easement, the following acts, uses and practices shall be prohibited rorer'er upon or within the Property: 3,0.;t_S_tmctu res .................. No structures may be erected or constructed on the Property except as permitted by the $outhold Town Land Preservation Committee (~Land Preservation Committee") and other applicable provisions of the Town Code and Sections :[.02 and 4,06 of this Easement. 3.02 Excavation an_d_.___Re_mo__v_al of Materials: Hinina Mineral exploitation, and extraction of any mineral (including, but not limited to soil, gravel, sand and hydrocarbons) by any me~hod, surface or subsurface, is prohibited. Grantor shall not remove or fill topsoil, sand, or any other materials, nor shall the topography of the Property be changed except in connection with the construction and maintenance of any structure or improvement expressly permitted to be placed or constructed on the Property, under the terms herein. Grantor may remove topsoil, sand or other materials for purposes or erosion control and soil management only with the prior written approval of Grantee, Tl~e Land Preservation Committee has the right to require ~ N~tural Resources Conservation Service (NRC$) farm management plan l'or the Property prior to the removal of topsoil, sand or other materials, based on the extent and type of materials romoved or on the alteration of the topography of the Property. Agricultural practices that are determined to be in accordance with an NRS¢ [arm management plan shall not be prohibited. 3.0.3__Subdivision Except as provided In this Section 3.03, the Property may not be further subdivided pursuant to Town 12w §§265, 276 or 277 or §335 of the Real Property Law, as they may be amended, or any other applicable State or local law. "Subdivision" shall include the division of the portion of the Property from which the development rights are , acquired into two or more parcels, in whole or in part. Grantor may, subject to approval by the Planning' Board of.the Town of $outhold and as otherwise required by applicable law, subdivide the property, provided that all resulting parcels contain 'at least 10 acre~ of preserved agricultural land subject to a development rights easement or other conservation instrument. Such subdivision may not de~ect nor derogate from the purpose of this Easement or other applicable )aw, 3..,..0...4. ......... Dum. D.ing The dumping or accumulation of unsightly or offensive materials including, but not limited to trash, garbage, sawdust, ashes or chemical waste on the Property shall be prohibited. This prohibition shall exclude materials used in the normal course of sound agricultural practices on the Property, including fertilization, composting and crop removal. 3~5 Sians 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 ~ny portion thereof for sale or rent, (c) to post the Property to control unauthorized entry or use, or (d) with the consent of the Grantor, to announce Grantee's easement. Signs are subject to regulatory requirements of the Town. 3,06 Utilities The creation or placement of overhead utility transmission lines, utility poles, wires, pipes, wells or drainage systems ("utilities') on the Property to service structures approved pursuant to §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 mag be used solely to service the permitted structures on the Property. The Property mag not be used ~or the creation or placement of utilities to service any other properties. 3.07 Prohibited Uses Except for uses specifically permitted by this Easement, the use of the Property or structures on it for any residential, commercial or industrial uses, p.ermanent 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 ~unici~al 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)-(j) of the 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 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 farmstands, shall not be considered a commercial use. No q i , i i 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 ac-'tivi~ inconsistent with current or future agricultural production be permitted on the Property. .3..,..0.8 ......... .S...o.l.!._..~__n.d__W~_t_.e_r m i Any use or activity that causes or is likely to cause soil' degradation or erosion or pollution of any surface or subsurfa'ce waters shall be prohibited. This prohibition shali, not be construed as extending to agricultural .operations and practices (including, without IimitaLion, the use of agrochemicals such as ferUlizers, pesticides, herbicides, and fungicides) that are .in accordance with sound agricultural managemenL practices of the Natural Resources Conservation Service ("NRCS"). * . · , 3.09. D. raina~e' .' _ · , · The use of the Property for a leaching or sewage disp'osa[ 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 Pr ope ,rty, 3.10 Development Rlghts The use of the acreage of this Property for purposes of calculating lot yield On any other PPopertg shall be prohibited. Grantor hereby grants to Grantee all existing development rights (and any further development rights that: may be creeted through a rezoning of the Property) on the'Property,~except for the r.ight to construct, maintain and replace any pre-existing structures, and to construct new structures, as such righ~ may t:~ provided in Section 4.06, and the parties agree that any other such development fights shall be terminated and extinguished and may not be used or transported to any other parcels. , , ART[CLE__FOU R ..... GRANTOR'S RIGHTS · 4.0.1. Ownership Subject to the provisions of ART[CLE THt~EE, Grantor shall retain all other ri§ht~ of ownership in the Property, some of which are more particularly described in this ARTICLE FOUR. 4.02 Poss_ess~n - Grantor shall continue to have the right to exclusive possession of the Property. 4.03 Use Grantor shall have the right to use the Property in any manner and for any purpose consistent with and not prohibited by th'is 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 production or activities. . Grantor shall also have the right to use the Property for traditional private recreational uses, provided such recreational uses are conducted for the personal enjoyment of Grantor, are compatible with farming, and are otherwise consistent with and do not derogate from or defeat the Purpose of this Easement or other applicable law. These uses shall not be offered or provided for the commercial purposes, Including the commercial gain of Grantor or others. 4.04 Landscaping Activities Grantor shall have the right to continue the current and/or customary modes of landscap, ing, 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 agrlcul~ural production, to thin and prune trees to maintain or improve the appearance of the Property, and to mow the Property. 4.05 Agricultural Production and Activities Grantor shall have the right to engage in all types of agricultural production as the term is presently referenced in §247 of the General ~qunicipal law and/or defined in Chepter 70 of the Town Code, now, or as said Chapter 70 may be amended and including the production of 10 crops, livestock and livestock products as defined in §30i(2)(a)-(j) of the Agriculture and Markets Law, now, or as said §301(2)(a)-(j) may be amended, provided said amended provisions are inherently similar in nature to those crops, fivestock and livestock products included as of the date of: this Easement. No future restriction Jn 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" opera~ions and/or the use of a corn maze to the general public, provided that such activities are conducted in conjunction with seasonal harvests, cio not interfere with agricultural ~roduction and are otherwise consistent with and do not derogate from or defeat the Purpose of this Easement or other applicable laws. Notwithstanding the definition of agricultural production in Chapter 70 of the Town Code or any successor chapter, structures shall be prohibited except: as set forth in 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, includlng but not limited to farmstands, 4.,.0..6 ..Structures A. Allowable ]:mprovements. Grantor shall have the right to erect and maintain the following improvements on the Property, as may be permitted by the Town Code and subject to the approval of the Town of Southold Land Preservation Committee, provided the Improvements are consistent with and do not derogate from or defeat the Purpose of this Easement or other applicable laws' (i) Underground facilities used to supply utilities solely. for the use and enjoyment of the Property; (ii) Existing irrigation well; (iii) New construction, including drainage improvement structures, provided such structures are necessary' for or accessory to agricultural 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; ]! (v) Notwithstanding anything to the contrary contained in this Easement, lot coverage shall be limited to twenty (20) percent. B. Conditions. Any allowable improvements shall protect prime agricultural soils, agricultural production, open space ancl scenic vistas, and otherwise be consistent with the Purpose of this Easement. C. Environmental Sensitivity During Construction. The use and location of any improvement permitted hereunder shall be consistent with the purposes intended herein, and construction of any such improvement shall minimize disturbances to the environment. Grantor shalt employ erosion and sediment control measures to mitigate any storm water runoff, including but not limited to minima[ 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 whtch renders repair o~ 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 generol location, subject to the review and written approval of Grantee, pursuant to applicable provisions 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 shall file all necessary applications and obtain all necessary approvals that may be required by this Easement or by the Town Code, and shall provide documentation as may be required for such applications. 4.08 Alienability = Grantor shall have the right to convey, mortgage or lease all of its remaining interest in the Property but only subject to this Easement. Grantor shall promptly notify Grantee of any conveyance of any interest in the Property, Including the full name and mailing address of any transferee, and, in the case of a transfer to an entity, the individual principals thereof. 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 12. · Easement by reference, specifically setting forth the date~ and that the provisions hereof shall not affect Grantee's dghts hereunder or the validity of this Easement. 4.09 Fu rther._R_es..t, ri_ction 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 .G.~.N.T.OR'S__O._B.L!G.A~:QN_5_ Grantor shall continue to pay all taxes, levies, and assessments and other governmental or municipal charges, which may become a lien on the Property, including any taxes or levies imposed to make those payments, subject, however, to Grantor's right to grieve or contest such assessment. The failure of Grantor to pay all such taxes, levies and assessments and other governmental or municipal charges shall not cause an alienation of any rights or interests acquired herein by Grantee. 5.02 [ndemnifica_tio_n 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, alt 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 harmJess 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 13 any nature by third parties arising ou~ of the entering into or exercise o~ rights under thls Easement, excepting any of those matters a~sing solely from the acts of Grantee, its officers, employees, agenLs, or independent contractors. , . 5.04 Grounds Maintenance Reauimment _ Jif Grantor leaves the Property open and follow and does not engage in agricultural production for two (2) consecutive years, then Grantor shatl implement an NRCS Plan (the "Plan") approved by the Land Preservation Committee. Grantor shall provide Grantee reasonable opportunity to initiate agricultural product[on or prepare the Property fo~ agricultural production. Following the failure by the Grantee to reasonably comply after the completion ef one growing season, Grantee shall have the right to enter the Property and restore, prepare and maintain the Property for future commercial agricultural use in order to protect the environmental, natural, scenic and agricultural values of the Property and to insure the Property remains viable for agricultural production. In the event Grantor fails to comply with the provisions of this section after ~he completion of one growing season, then, in addition to all other remedies set forth herein, Grantee or its agents are hereby authorized to enter upon ~he Property to implement the Plan, and to recover the costs of such implementation from Grantor, as provided in Section 6.03. ARTICLE SIX ........ GRANTEE'S EIGHTS , 6.01 E_n__t~ and Inspection_ Grantee shall have the right to enter upon the Property at reasonable times, upon prior notice to Grantor, and in a manner that will not interfere with Grantor's quiet use and enjoyment of the Property, for the purpose of inspection to determine whether this Easement and its purposes and provisions are being upheld. Grantee shall not have the right tO enter upon the Property for any other purposes, except as provided in Section 5.04 and 6.03, or to permit' access upon the Property by the public. 6.02 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 14 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 mo~ment, wind, weather or from any prudent action taken by the Grantor u~der emergency ~onditions to prevent, abate, or mitigate significant injury to persons or to the Property or crops, livestock or livestock products resulting from such causes. _6~..0.3_ .... E.n_.f_0___rcement Rights 9f Grantee , Grantor acknowledges and agrees that Grantee's remedies at law for any violation of this Easement may be inadequate. Therefore, in addition to, and not as a limitation of, any other rights of Grantee hereunder at law or in equity, in the event any breach, default or violation of any term, provision, covenant or obligation on Grantor's part to be observed or performed pursuan~ to :his Easement is not cured by Grantor wi~hln ten (10) days' notice thereof by Grantee (which notice requirement is expressly waived by Grantor with respect to any such breach, default or violation which, in Grantee's reasonable Judgment, requires immediate action to preserve and protect any of the agricultural values or otherwise to further the purposes of this Easement), Grantee shall have the right at Grantor's sole cost and expense and aL Grantee's election' (ii) 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 sdch 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 ~o 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. 15 Grantor shall pay either directly or by reimbursement to Grantee, all reasonable attorneys' fees, court costs and other expenses incurred by Grantee (herein called "Legal Expenses") in connection with any proceedings under this Section, as approved by the Court. , The cure period in this Section 6.03 may be extended for a reasonable time by Grantee il: such restoration cannot reasonably be accomplished within ten (10) days. 6.04 Noti.ce. All notices required by this Easement must be written. Notices shall be delivered by hand or by registered or certified mail, return receipt requested, with sufficien~ prepaid postage affixed and with return receipts requested. Nailed notice to Grantor shall be addressed to Grantor's address as recited herein, or to such other address as Grantor may designate by notice in accordance with this Section 6.04. Nailed notice to Grantee shall be addressed to its principal office recited herein, marked to the attention of the Supervisor and the Town Attorney, or to such other address as Grantee may designate by notice in accordance with this Section 6.04. Notice shall be deemed given and received as of the date of its manual delivery or three business days after the date of its mailing. ~.0_5 No Waiver . Grantee's exercise of one remedy or relief under this ART[CLE SIX shall not have the effect of waiving or limiting any other remedy or relief, and the failure to exercise or the delay in exercising any remedy shall not constitute a waiver of any other remedy or relief or the use of such other remedy or relief at any other time. 6.06 Extinauishment of Easement/Condemnation At the mutual request of Grantor and Grantee, a court with jurisdiction may, if it determines that conditions surrounding the Property have changed so much that it becomes impossible to fulfill the Purpose of this Easement described in Section 0.03, extinguish or modify this Easement in accordance with applicable law. The mere cessation of farming on the Property shall not be construed to be grounds for extinguishment of this 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 Property, or ~ortions thereof so taken or condemned, and the 16 Property shall not be subject to the limitations and restrictions of this Easement. in such event, the Grantor, its successors or assigns, shatl not be required to pay any penalties, 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 condemnation award shall be payable to the Grantee in proportion to the value attributable to the development rights transferred hereby, in accordance with Section 7.[3. herein. ARTIC_L_E SEVEN MISCELLAN.EOUS 7;0.1 Entire Understanding This Easement contains the entire understanding between its parties concerning its subject matter. Any prior agreement between the parties concerning its subject matter shall be merged into this Easement and superseded by it. 7,02 Amend men..,..,t; This Easement is made with the intention that it shall qualify as a conservation easement in perpetuity under Code Section 170(h). The parties agree that amendments to the provisions of this Easement may be permitted by Grantee if such amendment shall be necessary to entitle Grantor to meet the requirements of Code Section 170(h) and/or to enable Grantee to amplify the public benefits attributable to this Easement. · This Easement can be amended and modified only in accordance with the common and ~:atuto~ laws of the State of New York applicable to the modification of easements and covenants running with the land. Grantee and Grantor shall mutually have the right to agree to amendments to this Easement, provided however, that Grantee shall have no right or power to agree bo any amendment hereto that would result in this Easement failing to qualify as a valid conservation easement under Article 49, ~tle 3 of the Environmental Conservation Law of the State of New York, as the same may be horeafter amended, or any regulatlon issued pursuant thereto. 7..0:~ 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 pub[ic hearing and, thereafter, ratified by a mandatory referendum by the electors of the Town of $outhold. No subsequent amendment of the provisions of the Town Code shall alter the limitations placed upon the alienation of those property rights or interests which were acquired by the Town prior to any such amendment. In addition to the limitations set forth above, Grantee shall have the right to transfer all or part of this Easement to any public agency, or private non-governmental organization, that at the time of transfer is a "qualified organization" under §170(h) of the 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 jurisdiction may transfer this Easement to another qualified public agency that agrees to assume the responsibilities imposed by this Easement, .7.....0...4.. ......... Se..v..e. rabil, i.~ Any provision of this Easement restricting Grantor's activities, which is determined to be invalid or unenforceable by a court shall not be. invalidated. Instead, that provision shall be reduced or limited to whatever extent that court determines will make it enforceable and effective. Any other provision of this Easement that is determined to be invalid or unenforceable by a court shall be severed from the other provisions, which shall remain enforceable and effective. 7.05 Governina Law New York law applicable to deeds to and easements on land located within New York shall govern this Easement in all respects, including validity, construction, Interpretation, breach, violation and performance. _7._.06_. I.n. tero retatio 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 construct[on designed to timit the breadth of the restrictions on use of the Property shall not apply In the construction or Interpretation of this Easement, and this ~asement shall be interpreted broadly to effect the purposes of this Easement as intended by the parties. The parties intend that ~his Easement, which is by nature and character primarily negative in that Grantor has restricted and limited his right to use the Property, except as o[herwise r. ecited herein, be construed at all times and by all parties to. effectuate its purposes. 7.07 Public Access Nothing contained in this Easement grants, nor shall it be interpreted to grant, to the public, any right to enter upon the Property, or to use images of the Property. Grantee may use images of the Property only for non-commercial reporting of this Easement. 7.08 W.a_r_r_~nties The warranties and representations made by the parties in this Easement shall survive its execution. 7.09 Recording Grantee shall record this Easement in the land records of the office of the Clerk o[ the County of Suffolk~ State of New York. 7.10 Headings The headings, titles and subtitles herein have been Inserted solely for convenient reference, and shall be ignored in Its construction. ' The grant of this Easement gives rise to a property right, immediately vested in Grantee, which, for purposes of calculating proceeds from a sale or other disposition of the Property as contemplated under Section 6.06 (Extinguishment of Easement), shall have a value equal to a percentage of the value of the Property unencumbered by this Easement (the "Proportionate Share"). The 19 Proportionate Share is determined by dividing the value of this Easement, calculated as of the date hereof, by the unencumbered value of l:he Property, as reflected in an appraisal obtained by Grantee dated November ~8, 2009 and updated November 23, 2009. The Proportionate Share is 66.6%. The Prdportionate Share shall remain constant (subJect to reasonable adjustment to the extent permissible under Section 170(h) of the Internal Revenue Code for any improvements which may hereafter be made on the Property). iN WTTNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted and received this Deed of Easement on the day and year set forth above. ACKNOWLEDGED AND ACCEPTED' EST, A,TE OF .JUl.iA D. CONWAY, Grantor Jo~ph A. Conw'ay, Co-Executor --i~ ~-I~-~- ~-- ~.---~)-~-v~ y,-' C o- Ex ecu t 0~---- Conw ally TESTAMENTARY TRUST OF 3OSEPH M. CONWAY, Grantor onway, C ustee BY: Conway, , ACKNOWLEDGED AND ACCEPTED: TOWN OF SOUTHOLD, Grantee BY: .tt A. Russell, Supervisor 2o State of New York County of ~urr-~K ) On the ~day of ............ ....~~ .................................. in the year 2011 before me, the undersigned, persona#y appeared Joseph A. Conway, personally known to me or proved to me on the basls of satisfactory evidence ~o be the individual (s) whose name (s,) is (are) subscHb~ to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity (les), end 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. STATE OF NEW YORK COUNTY OF SUFFOLK ss. Signature/office of individual ~akinq ackn~o'wledgement PATRlCtA t. FA[LON Neta~y publl~,, State Oi New NO. 01FA495~146 OuaJlfied In Suffolk County. ' Commis~on Expires April 24~ On this ~J~lay of/~t~. In ~he y~ar 20:/! before me, the undersigned, personally appeared Robert ~1. Conway 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 Ehat by his/her/~heir 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' PATRICIA L FAi LON Notary Publio, State Of NewYo~ Ne. 01FA4950146 Qualified In Suffolk C.,o~ Comm~lon Expires April 24~ ~/~' On this,~day of ~~. in the year 2011 before me, the undersigned, personally appeared Scott A. Russell, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(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 , PATR~IA L, Notary Public, State O! .NLe_ w No. O1 FA4950146 Qualified In Suffolk County Commission Expires A. pril 24, 21 FIDELITY NATIONAL TITLE INSURANCE COMPANY TITLE NO, Fl 0-7404-80~i67$UFF (Continued) DEVELOPMENT RIGHTS EASEMENT AREA ALL that certain plot, piece or parcel of land, situate, lying and b=ing at Southold, Town of $outhold, County of Suffolk and State of New York, being bounded and described as follows: BEGINNING at a point on tho southw, stcrly side of Herren Lane distant iht following 3 courses and distances from the intermcfion of the southeasterly sid~ of Jennings Road with the southwesterly side of Herren Lane; I) southeasterly 568 feet; 2) South 40 degrees 28 minutes 30 seconds East, 195.29 feet; 3) South 47 degrees 34 minutes 00 seco~ids West, 205.00 feet along the northerly line of land now or formerly ofT. &. C. Conway to the point or place of beginning; RUNNING THENCE the following two courses and distances along land now or formerly ofT, & C. Conway: 1) South 42 degrees 26 minutes 00 seconds East, 214.88 feet; 2) Noah 47 degrees 34 minutes 00 seconds East, 197.66 feet to the southwesterly side of Horton Lane; THENCE the following 3 courses and distances along the southwesterly side of Herren Lane: 1) South 40 degrees 28 minutes 30 seconds East, 93,05 feet; 2) South 42 degrees 20 minutes 00 seconds East, 799.75 feet; 3) South 37 degrees t3 minutes t8 seconds East, 113,02 feet; THENCE Sou'th 48 degrees 29 minutes 30 seconds West, 193.77 feet; THENCE South 37 degrees 13 minutes 18 seconds East, 414,0t feet to land now or formerly of Abbatiello; THENCE along the land now or formerly of Abbatielio, South 48 degrees 29 minutes 30 seconds West, 79.3.62 feet to land now or formerly of Damianos; THENCE the following three courses and distances along land n6w or formerly of Damianos' 1) Noah 35 degrees 02 minutes 20 seconds West, 870. I4 feet; 2) North 34 degrees 18 minutes 50 seoonds West, 451.87 feet; 3) Noah 35 degrees 19 minutes 50 seconds West, 309.81 feet to land now or formerly of Joseph Conway; THENCE along land now or formerly of Joseph Conway, North 47 degrees 34 minutes 00 seconds East, 557.93 feet to the point or place of BF~INNING. THE POLICY TO BE ISSUED.under this commitment will insure the title to such buildings and improvements on the pr~mises which by law constitute real properly. FOR CONVEYANCING ONL Y: Together with all the right, title and interezt of the part of the first part, of in and to the land !ging in the street in front of and adjoining said premizez, SCHEDULE ~t- I (Description} · ! . x, · · i · ' .......... Il ........ .......... III .... .k .......... k I .d, dlll I.I.. ,~,l..l,d,l,dli.kl iiiqll 111 /. q l_ , · i !