HomeMy WebLinkAboutEdson 1000-102.-2-16.3 MELISSA A. SPIRO
LAND PRESERVATION COORDINATOR
melissa.spiro @town.southold.ny.us
Telephone (631) 765-5711
Facsimile (631) 765-6640
OFFICE LOCATION:
Town Hall Annex
54375 State Route 25
(comer of Main Road & Youngs Avenue)
Southold, New York
MAILING ADDRESS:
P.O. Box 1179
Southold, NY 11971-0959
DEPARTMENT OF LAND PRESERVATION
TOWN OF SOUTHOLD
To: Elizabeth A. Neville
Town Clerk
From:
Melanie Doroski
Sr. Administrative Assistant
Date: January 5, 2012
RECEIVED
JAN 5 2012
Soufhold Town CIer[
Re:
EDSON to TOWN OF SOUTHOLD
Development Rights Easement - 22.5048 acres
SCTM #1000-102.-2-16.3
Betty:
Enclosed you will find a certified copy of the "Correction - Grant of Development Rights Easement"
dated November 3, 2011, between Lewis L. Edson, a/k/a Lewis Edson, and the Town of Southold. The
original of this document was recorded in the office of the Suffolk County Clerk on November 21, 2011,
under Liber D00012677, at Page 183.
The recording of this correction easement was necessary to put right an error in the property survey and
legal description found after the Town's closing on the development rights easement which occurred on
August 3, 2011. The original Grant of Development Rights Easement was recorded September 1, 2011,
under Liber D00012670, at Page 160, and was forwarded to you on September 28, 2011, along with
other closing documents.
Please keep this corrected easement in safe-keeping with other closing documents related to this
subject matter that are now on file in the Town Clerk's office.
Thank you.
Melanie
enc.
cc: Assessors w/copy of recorded correction easement
COUNTY CLERK'S OFFICE
STATE OF NEW YORK
COUNTY OF SUFFOLK
CC#: Cll-43593
I, JUDITH A. PASCALE, Clerk of the County of Suffolk and the Court
of Record thereof do hereby certify that I have compared the annexed with the original
EASEMENT
recorded in my office on 11121/2011 under Liber D00012677 and Page 183 and,
that the same is a true copy thereof, and of the whole of such original.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of said County
and Court this 11/2112011
SUFFOLK COUNTY CLERK
JUDITH A. PASCALE
SEAL
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT
Number of Pages: 25
Receipt Number : 11-0127208
TRANSFER TAX NUMBER: 11-07944
District:
1000
Deed Amount:
Recorded:
At:
LIBER:
PAGE:
Section: Block:
102.00 02.00
EXAMINED AND CHARGED AS FOLLOWS
$0.00
Received the Following Fees
Page/Filing $125.00
COE $5.00
TP-584 $5.00
Cert. Copies $31.25
Transfer tax $0.00
TRANSFER TAX NUMBER: 11-07944
THIS
For Above Instrument
Exempt
NO Handling
NO NYS SRCHG
NO Notation
NO RPT
NO Comm. Pres
Fees Paid
PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
11/21/2011
11:50:04 AM
D00012677
183
Lot:
016.003
Exempt
$20.00 NO
$15.00 NO
$0.50 NO
$30.00 NO
$0.00 NO
$231.75
JUDITH A. PASCALE
County Clerk, Suffolk County
Please be advised this document will be public record.
Number of pages
TORRENS
Serial #
Certificate #
Prior Ctf. #
31
Deed / Mortgage Instrument
Deed / Mortgage Tax Stamp
FEES
Page / Filing Fee
HandIing
TP-584
Notation
EA-52 17 (County)
EA-5217 (State)
R.P.T.S.A.
Comm. of Ed.
Affidavit
Certified Copy l//
NYS Surcharge
Other
Sub Total
5. O0
15. O0
Sub Total
Grand Total ~]- ~, I ,' ?~/
Remove Social Security Number(s) prior to recording.
i
4 Dist. 10(20 1102486'/ xooo 0200 0200 0 $003
TaxRealPr°pertYservice (F~ Illlllllllll
Agency
Verification
'¢JFFOL_¢ ,--- ,
Recording / Filing Stamps
Satisfactions/Discharges/Releases List Property
RECORD & RETURN TO:
Twomey, Latham, Shea, Kelley, Dubin &
Quartararo LLP
P.O. Box 9398
Riverhead, NY 11901
Attn: Lisa C. Kombrink, Esq.
Owners Mailing Address
Co. Name
Title #
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec./Assit.
or
Spec./Add.
TOT. MTG. TAX
Dual Town __ Dual County __
Held for Appointment
Transfer Tax
Mansion Tax
The property covered by this mortgage is
or will be improved by a one or two
family dwelling only.
YES or NO
If NO, see appropriate tax clause on
V~. page # __ of this instrument.
5 Community Preservation Fund
Consideration Amount $
Improved
Vacant Land '
TD
TD
TD
'Information
Suffolk County Recording & Endorsement Page
This page forms part of the attached
Lewis Edson, a/Ida Lewis k. Edson
Grant of Development Rights Easement
(SPECIFY TYPE OF INSTRUMENT)
The premises herein is situated in
SUFFOLK COUNTY, NEW YORK.
made by:
TO In the Township of Southold
Town of Southold In the VILLAGE
or HAMLET of Cutchogue
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
(over)
CORRECTION
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on the 3rd
day of November, 2011 at Southold, New York. The parties are Lewis L.
Edson, a/k/a Lewis Edson, residing at 30105 Main .Rd., P.O. Box 939,
Cutchogue, New York 11935 (herein called "Grantor"), and the TOWN OF
SOUTHOLD, a municipal corporation, having its principal office at 53095 Main
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 #1000-102-2-16.1 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 John C. Ehlers Land Surveyor, dated
June 22, 2011 and last revised September 16, 2011 (a reduced copy of which
is attached hereto and made a part hereof and hereinafter referred to as the
"Survey"); and
WHEREAS, this document is a correction Grant of Development Rights
Easement and is being recorded to correct an error in the survey and in the
description of the Development Rights Area as set forth in Schedule "A", both
attached to the previously recorded Easement, originally dated August 3rd,
2011 and recorded on September 1st, 2011 at Liber D00012670, Page 160. As
shown on the survey, the course along the Reserve Area which is a distance of
200.63' should have read 240.07'. A corrected Survey and Schedule "A" are
attached herein and made a part of this Correction Grant of Development
Rights Easement.
WHEREAS, the Property is located in the R-80 and R-40 Zoning Districts
of the Town of Southold; and
WHEREAS, the Property contains soils classified as Class I and Class II
worthy of conservation as identified by the United States Department of
Agriculture Soil Conservation Service's Soil Survey of Suffolk County, New
York; and
WHEREAS, the Property is part of the New York State Agricultural
District #1, and the Grantor wishes to continue using the Property for
agricultural production as defined in this Easement; and
WHEREAS, the Property is currently used for field crops; and
WHEREAS, it is the policy of the Town of Southold (the "Town"), as
articulated in the Town's fvlaster Plan of 1973, amended in :t986 and 1989 as
adopted by the Town Board, Town of Southold, and §272-a of the New York
State Town Law ("Town Law") to protect environmentally sensitive areas,
preserve prime agricultural soils, to protect the scenic, open space character
of the Town and to protect the Town's resort and agricultural economy; and
WHEREAS, the Property in its present scenic and agricultural condition
has substantial and significant value as an aesthetic and agricultural resource
since it has not been subject to any substantial development; and
WHEREAS, Grantor and Grantee recognize the value and special
character of the region in which the Property is located, and Grantor and
Grantee have, in common, the purpose and objective of protecting and
conserving the present state and inherent, tangible and intangible values of
the Property as an aesthetic, natural, scenic and agricultural resource; and
WHEREAS, Grantee has determined it to be desirable and beneficial and
has requested Grantor, for itself and its successors and assigns, to grant a
Development Rights Easement to Grantee in order to restrict the further
development of the Property while permitting compatible uses thereof;
NOW THEREFORE, in consideration of ONE M;[LLfON THREE HUNDRED
FfFTY THOUSAND TWO HUNDRED EIGHTY-EfGHT A~D 00/00 DOLLARS
($1,350,288.00) and other good and valuable consideration paid to. the
Grantor, the receipt of which is hereby acknowledged, the Gra, ntor does
hereby grant, transfer, bargain, sell and convey to the Grantee a
Development Rights Easement, in gross, which shall be binding upon and shall
restrict the premises shown and designated as the Property herein, more
particularly bounded and described on Schedule "A" annexed hereto and made
a part of this instrument.
TO HAVE AND TO HOLD said Development Rights Easement and the
rights and interests in connection with it and as hereinafter set forth with
respect to the Property unto the Grantee, its successors and assigns forever,
reserving, however, for the direct use and benefit of the Grantor, its legal
representatives, successors and assigns, the fee title to the property, and the
exclusive right of occupancy and of use of the Property, subject to the
limitations, condition, covenants, agreements, provisions and use restrictions
hereinafter set forth, which shall constitute and shall be servitudes upon and
with respect to the Property.
2
The Grantor, for itself, and for and on behalf of its legal representatives,
successors and assigns, hereby covenants and agrees as follows:
0.01 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 Law and §247 of the New York
State General Municipal Law ("General t4unicipal Law") to acquire fee title or
lesser interests in land, including development rights, easements, covenants,
and other contractual rights which may be necessary or desirable for the
preservation and retention of agricultural lands, open spaces and natural or
scenic resources.
0.03 Purpose
The parties recognize the environmental, natural, scenic and agricultural
values of the Property and have the common purpose of preserving these
values by limiting 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 Recoqnition
New York State has recognized the importance of private efforts to
preserve rural land in a scenic, natural, and open condition through
conservation restrictions by the enactment of General Municipal Law §247.
Similar recognition by the federal government includes §170(h) of the Internal
Revenue Code ("IRC") and other federal statutes.
3
0.05 Baseline Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property are compatible with the purposes
of this Easement. in order to aid in identifying and documenting the present
condition of the Property's natural, scenic, agricultural, and aesthetic
resources and otherwise to aid in identifying and documenting the Property's
agricultural values as of the date hereof, to assist Grantor and Grantee with
monitoring the uses and activities on the Property and ensuring compliance
with the terms hereof, Grantee has prepared, with Grantor's cooperation, an
inventory of the Property's relevant features and conditions (the "Baseline
Documentation"). This Baseline Documentation includes, but need not be
limited to, a survey prepared by ,lohn C. Ehlers Land Surveyor, dated -June 22,
2011 and last revised September 16, 2011, a Phase ]~ Environmental Site
Assessment dated ,lune 7, 2011 prepared by Cashin Technical Services, inc.
and a 2004 aerial photograph.
Grantor and Grantee acknowledge and agree that in the event a
controversy arises with respect to the nature and extent of the Grantor's uses
of the Property or its physical condition as of the date hereof, the parties shall
not be foreclosed from utilizing any other relevant or material documents,
surveys, reports, photographs or other evidence to assist in the resolution of
the controversy.
0,06 Recitation
in consideration of the previously recited facts, mutual promises,
undertakings, and forbearances contained in this Development Rights
Easement, the parties agree upon its provisions, intending to be bound by it.
ARTICLE ONE
THE EASEMENT
1.01 Type
This instrument conveys a Development Rights Easement (herein called
the "Easement"). This Easement shall consist of the limitations, agreements,
4
covenants, use restrictions, rights, terms, and conditions recited herein.
Reference to this "Easement" or its "provisions" shall include any and all of
those limitations, covenants, use restrictions, rights, terms and conditions.
1.02 Definitions
"Development Rights" shall mean the permanent legal interest and right
to prohibit or restrict the use of the Property for uses or purposes consistent
with the terms of this Easement, including agricultural production as that term
is 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 §30:[(2)(a)-
(j) of the New York State Agriculture and IVlarkets Law ("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,
livestock and livestock products included as of the date of this Easement. No
future restrictions in said laws and/or Code or limitation in the definitions set
forth in said laws and/or Code shall preclude a use that is permitted under the
current law and/or Code.
"Improvement" shall mean any addition to raw land, such as
structures, fences, wells or drainage.
"Riding Academy" shall mean a business use of a lot for any of the
following purposes: the letting of horses for hire to individuals or groups
whether supervised or unsupervised, horseback riding instruction or the
holding of horse shows or other equine events.
"Structure" shall mean anything constructed or erected on or under the
ground or upon another structure or building, including walkways. Structures
shall not include trellis, posts and wiring, farm 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.
5
1.03 Duration
This Easement shall be a burden upon and run with the Property in
perpetuity.
1.04 Effect
This Easement shall run with the Property as an incorporeal interest in
the Property, and shall extend to and be binding upon Grantor, Grantor's
agents, tenants, occupants, 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 and/or
Grantee" when used herein shall include all of those persons or entities.
ARTICLE TWO
SALE
GRANTOR, for ONE MILLION THREE HUNDRED FIFTY THOUSAND TWO
HUNDRED EIGHTY-EIGHT 00/00 DOLLARS ($1,350,288.00) 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, g;~a-~,~'~
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts, uses and
practices shall be prohibited forever upon or within the Property:
3.01 Structures
No structures may be erected or constructed on the Property except as
permitted by the Southold Town Land Preservation Committee ("Land
6
Preservation Committee") and other applicable provisions of the Town Code
and Section 1.02 and Section 4.06 of this Easement.
3.02 Excavation and Removal of Materials; Mining
The excavating, regrading, scraping or filling of the Property shall be
prohibited, without the prior written consent of Grantee, including but not
limited to from the Land Preservation Committee.
Mineral exploitation, and extraction of any mineral, including but not
limited to soil, gravel, sand and hydrocarbons, by any method, surface or
subsurface, is prohibited.
The removal of topsoil, sand, or other materials from the Property is
prohibited, nor shall the topography of the Property be 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 in this Section 3.03, the Property may not be further
subdivided pursuant to Town Law §§265, 276 or 277 or §335 of the Real
Property Law, as they may be amended, or any other applicable State or local
law. "Subdivision" shall include the division of the portion of the Property from
which the development rights are acquired into two or more parcels, in whole
or in part.
Grantor may, subject to approval by the Planning Board of the Town of
Southold and as otherwise required by applicable law, subdivide the property,
provided that all resulting parcels contain at least 10 acres of preserved
agricultural land subject to a development rights easement or other
conservation instrument. Grantor may also make application to subdivide the
Property from the "Reserve Area" shown on the Survey, subject to applicable
State, Town and other governmental laws.
Notwithstanding this Section 3.03, upon the death of Grantor, the
underlying fee interest may be divided by conveyance of parts thereof to
Grantor's executor, trustee, heirs or next of kin by will or operation of law.
3.04 Dumping
The dumping or accumulation of unsightly or offensive materials
including, but not limited to trash, garbage, sawdust, ashes or chemical waste
on the Property shall be prohibited. This prohibition shall exclude materials
used in the normal course of sound agricultural practices on the Property,
including fertilization, composting and crop removal.
3.05 Siqns
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.
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 may be used solely to service the permitted structures on the
Property. The Property may not be used for the creation or placement of
utilities to service any other properties.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, the use of the
Property or structures on it for any residential, commercial or industrial uses,
permanent or temporary, including but not limited to a riding academy, shall
be prohibited. For the purposes of this section, agricultural production, as
that term is presently referenced in {}247 of the General Municipal Law and/or
defined in Chapter 70 of the Town Code, now, or as said Chapter 70 may be
amended and including the production of crops, livestock and livestock
products as defined in §301(2)(a)-(j) of the Agriculture and Markets Law, now
or as said §30:~(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, and Grantor's use of the
Property as of the date if this Easement to raise and harvest Christmas trees,
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 improvements, uses or activities
inconsistent with current or future agricultural production shall be permitted
on the Property. Under no circumstances shall athletic fields, golf courses or
ranges, commercial airstrips and helicopter pads, motorcross biking, or any
other improvements or activity inconsistent with current or future agricultural
production be permitted on the Property.
3.08 Soil and Water
Any use or activity that causes or is likely to cause soil degradation or
erosion or pollution of any surface or subsurface waters shall be prohibited.
This prohibition shall not be construed as extending to agricultural operations
and practices (including, without limitation, the use of agrochemicals such as
fertilizers, pesticides, herbicides, and fungicides) that are in accordance with
sound agricultural management practices of the Natural Resources
Conservation Service ("NRCS").
3.09 Drainage
The use of the Property for a leaching or sewage disposal field shall be
prohibited. The use of the Property for a drainage basin or sump shall be
prohibited, except in accordance with sound agricultural management
practices and in order to control flooding or soil erosion on the Property.
3.10 Development Rights
The use of the acreage of this Property for purposes of calculating lot
yield on any other Property shall be prohibited. Grantor hereby grants to
Grantee all existing development rights (and any further development rights
that may be created through a rezoning of the Property) on the Property,
except for the right to construct, maintain and 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.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain all
other rights of ownership in the Property, some of which are more particularly
described in this ARTICLE FOUR.
4.02 Possession
Grantor shall continue to have the right to exclusive possession of the
Property.
4.03 Use
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 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.
l0
4.04 Landscaping 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 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
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)-(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. 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 laws.
Notwithstanding the definition of agricultural production in Chapter 70 of
the Town Code or any successor chapter, structures shall be prohibited except
as set forth in Section 4.06 herein and as permitted by the Town Code now or
in the future on agricultural lands protected by a development rights
easement or other instrument, including but not limited to farmstands.
4.06 Structures
A. Allowable Improvements. Grantor shall have the right to erect and
maintain the following improvements on the Property, as may be permitted by
the Town Code and subject to the approval of the Town of Southold Land
Preservation Committee, provided the improvements are consistent with and
do not derogate from or defeat the Purpose of this Easement or other
applicable laws:
Underground facilities used to supply utilities solely for
the use and enjoyment of the Property;
(i~)
Existing irrigation well and well head;
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.
B. Conditions. Any allowable improvements shall protect prime
agricultural soils, agricultural production, open space and scenic vistas, and
otherwise be consistent with the Purpose of this Easement.
C. Environmental Sensitivity During Construction. The use and
location of any improvement permitted hereunder shall be consistent with the
purposes intended herein, and construction of any such improvement shall
minimize disturbances to the environment. Grantor shall employ erosion and
sediment control measures to mitigate any storm water runoff, including but
not limited to minimal removal of vegetation, minimal movement of earth and
minimal clearance of access routes for construction vehicles.
D. Replacement of Improvements. In the event of damage resulting
from casualty loss to an extent which renders repair 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 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
the individual principals thereof, under any such conveyance. The instrument
of any such conveyance shall specifically set forth that the interest thereby
conveyed is subject to this Easement, without modification or amendment of
the terms of this Easement, and shall incorporate this Easement by reference,
specifically setting for the date, office, liber and page of the recording hereof.
The failure of any such instrument to comply with the provisions hereof shall
not affect Grantee's rights hereunder.
4.09 Further Restriction
Nothing in this Easement shall prohibit or preclude Grantor from further
restricting the use, improvements or structures on the Property. Any such
further restrictions shall be consistent with and in furtherance of the general
intent and purpose of this Easement as set forth in Section 0.03.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay 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,
13
subject, however, to Grantor's right to grieve or contest such assessment.
The failure of Grantor to pay all such taxes, levies and assessments and other
governmental or municipal charges shall not cause an alienation of any rights
or interests acquired herein by Grantee.
5.02 Indemnification
Grantor shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or
any of its officers, employees, agents or independent contractors, all of which
shall be reasonable in amount, arising from injury due to the physical
maintenance or condition of the Property caused 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 Maintenance Requirement
Tf 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. Tn 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
14
recover the costs of such implementation from Grantor, as provided in Section
5.02 and Section 6.03.
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry 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 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, livestock or livestock products
resulting from such causes.
6.03 Enforcement Riqhts of Grantee
Grantor acknowledges and agrees that Grantee's remedies at law for
any violation of this Easement may be inadequate. Therefore, in addition to,
and not as a limitation of, any other rights of Grantee hereunder at law or in
equity, in the event any breach, default or violation of any term, provision,
covenant or obligation on Grantor's part to be observed or performed
pursuant to this Easement is not cured by Grantor within ten (:LO) days' notice
thereof by Grantee (which notice requirement is expressly waived by Grantor
with respect to any such breach, default or violation which, in Grantee's
reasonable judgment, requires immediate action to preserve and protect any
of the agricultural values or otherwise to further the purposes of this
Easement), Grantee shall have the right at Grantor's sole cost and expense
and at Grantee's election:
(i)
To institute a suit to enjoin or cure such breach, default or
violation by temporary and/or permanent injunction,
(ii)
To enter upon the Property and exercise reasonable efforts to
terminate or cure such breach, default or violation and/or to cause
the restoration of that portion of the Property affected by such
breach, default or violation to the condition that existed prior
thereto, or
To enforce any term provision, covenant or obligation in this
Easement or to seek or enforce such other legal and/or equitable
relief or remedies as Grantee deems necessary or desirable to
ensure compliance with the terms, conditions, covenants,
obligations and purposes of this Easement; provided, however,
that any failure, delay or election to so act by Grantee shall not be
deemed to be a waiver or a forfeiture of any right or available
remedy on Grantee's part with respect to such breach, default, or
violation or with respect to any other breach, default or violation
of any term, condition, covenant or obligation under this
Easement.
Grantor shall pay either directly or by reimbursement to Grantee, all
reasonable attorneys' fees, court costs and other expenses incurred by
Grantee (herein called "Legal Expenses") in connection with any proceedings
under this Section, as approved by the Court.
The cure period in this Section 6.03 may be extended for a reasonable
time by Grantee if such restoration cannot reasonably be accomplished within
ten (10) days.
6.04 Notice
All notices required by this Easement must be written. Notices shall be
delivered by hand or by registered or certified mail, return receipt requested,
with sufficient prepaid postage affixed and with return receipts requested.
Mailed notice to Grantor shall be addressed to Grantor's address as recited
herein, or to such other address as Grantor may designate by notice in
accordance with this Section 6.04. Nailed notice to Grantee shall be
addressed to its principal office recited herein, marked to the attention of the
Supervisor and the Town Attorney, or to such other address as Grantee may
designate by notice in accordance with this Section 6.04. Notice shall be
deemed given and received as of the date of its manual delivery or three
business days after the date of its mailing.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this ARTlrCLE 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 Extinguishment 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
portions thereof so taken or condemned, and the Property shall not be subject
to the limitations and restrictions of this Easement. In such event, the
Grantor, its successors or assigns, shall not be required to pay any penalties,
but the value of the Property shall reflect the limitations of this Easement.
Any condemnation award payable 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 7.11 herein.
ARTICLE SEVEN
MISCELLANEOUS
]?
7.0:~ Entire Understanding
This Easement contains the entire understanding between its parties
concerning its subject matter. Any prior agreement between the parties
concerning its subject matter shall be merged into this Easement and
superseded by it.
7.02 Amendment
This Easement may be amended only with the written consent of
Grantee and current Grantor and in accordance with any applicable State and
local laws. Any such amendment shall be consistent with the Purpose of this
Easement and shall comply with the Town Code and any regulations
promulgated hereunder 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 §170(h).
The parties agree to amend the provisions of this Easement if such
amendment shall be necessary, to entitle Grantor to meet the requirements of
§170(h). Any such amendment shall apply retroactively in the same manner
as if such amendment or amendments had been set forth herein.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be alienated
except pursuant to the provisions of Chapter 70 of the Town Code or any
successor chapter and other applicable laws, upon the adoption of a local law
authorizing the alienation of said rights and interest, following a public hearing
and, thereafter, ratified by a mandatory referendum by the electors of the
Town of Southold. No subsequent amendment of the provisions of the Town
Code shall alter the limitations placed upon the alienation of those property
rights or interests which were acquired by the Town prior to any such
amendment.
In addition to the limitations set forth above, Grantee shall have the
right to transfer all or part of this Easement to any public agency, or private
non-governmental organization, that at the 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.
7.04 Severability
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 Governing Law
New York law applicable to deeds to and easements on land located
within New York shall govern this Easement in all respects, including validity,
construction, interpretation, breach, violation and performance.
7.06 Interpretation
Regardless of any contrary rule of construction, no provision of this
Easement shall be construed in favor of one of the parties because it was
drafted by the other party's attorney. No alleged ambiguity in this Easement
shall be construed against the party whose attorney drafted it. If any
provision of this Easement is ambiguous or shall be subject to two or more
interpretations, one of which would render that provision invalid, then that
provision shall be given such interpretation as would render it valid and be
consistent with the purposes of this Easement. Any rule of strict construction
designed to limit the breadth of the restrictions on use of the Property shall
not apply in the construction or interpretation of this Easement, and this
Easement shall be interpreted broadly to effect the purposes of this Easement
as intended by the parties. The parties intend that this Easement, which is by
nature and character primarily negative in that Grantor has restricted and
limited his right to use the Property, except as otherwise
recited herein, be construed at all times and by all parties to effectuate its
purposes.
7.07 Public Access
Nothing contained in this Easement grants, nor shall it be interpreted to
grant, to the public, any right to enter upon the Property, or to use images of
the Property. Grantee may use images of the Property only for non-
commercial reporting of this Easement.
7.08 Warranties
The warranties and representations made by the parties in this
Easement shall survive its execution.
7.09 Recording
Grantee shall record this Easement in the land records of the office of
the Clerk of the County of Suffolk, State of New York.
7.10 Headings
The headings, titles and subtitles herein have been inserted solely for
convenient reference, and shall be ignored in its construction.
7.11 Proceeds
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 Proportionate Share is determined by dividing
the value of this Easement, calculated as of the date hereof, by the
unencumbered value of the Property, as reflected in an appraisal obtained by
Grantee dated January 20, 201:L The Proportionate Share is 62%. The
Proportionate 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).
2O
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has
accepted and received this Grand of Development Rights Easement on the day
and year set forth above.
ACKNOWLedGED AN~I~z~/E, PTE D:
LEW~S L. EDSON
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUTHOLD, Grantee
STATE OF NEW YORK)
COUNTY OF SUFFOLK), SS:
On the/L ~ day of ~'?~ :~ ~' in the year 2011 before me, the undersigned,
~LEWIS L. EDSON, 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. ~ / . ~
Sign~ture/~ffice of individual taking acknowledgement
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
On this~ - day of OWm~,~ in the year 2OJJ before me'/~h~ ~~,
personally appeared ~co~ A. Russell, personally known to me or proved to me on the
basis of satisfacto~ 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 instrumen~ the
individual(s), or the person upon behalf of which the individual(s) acted, executed the
strument;~
Ou~lified n Gutlolk Ooun~
Nota~ Pub~ Co~ ssion ~ires September 30,~
2!
$O1-~ C. EHLERS LANI) SURVEYOR
_ ewarl
title insurance company
NEW YORK METRO
800-853-4803
212-922-1593fax
stewaHnewyork.com
SCHEDULE A - DESCRIPTION
Title No.: ST11-11168
AMENDED 10/11/2011
DEVELOPMENT RIGHTS AREA
ALL that certain plot, piece or parcel of land, situate, lying and being at Cutchogue, in the Town of
Southold, County of Suffolk and State of New York, known and designated as part of Lot No. 6 as shown
on a certain map entitled, "Subdivision Map of Deborah Edson", filed June 7, 1988 in the Office of the
Clerk of the County of Suffolk as Map No. 8537 and described land; said part of lot and described Iand
when taken together are mom particularly bounded and described as follows:
BEGINNING at a point on the northeasterly side of Depot Lane; said point also being the division line
between Lots 5 and 6 as shown on above mentioned map;
RUNNING THENCE North 49 degrees 50 minutes 00 seconds East, 465.79 feet to land now or
formerly of Lewis Edson;
THENCE along said lands known as Lot Nos. 1, 2, 3, 4 and 5 as shown on abovementioned map and
along lands now or formerly of Marian Columbus Club, Inc., and lands formerly of Bailey and now or
formerly of Gekee Wickham, and lands formerly of Kurczowski and now or formerly of Jeffrey
Campbell and Sara Campbell, and lands formerly of Doroski and now or formerly of Joseph Grattan, and
lands now or formerly of Rober Jenkins and Jean Jenkins, the following two (2) courses and distances:
North 40 degrees i0 ndnutes 00 seconds West, 990.34 feet;
North 40 degrees 54 minutes 30 seconds West, 483.40 feet to other lands now or formerly of Rober
Jenkins and Jean Jenkins;
THENCE along said land North 46 degrees 53 minutes 30 seconds East, 549.09 feet to land now or
formerly of Cutchogue Cemetery Association;
THENCE along said land South 42 degrees 02 minutes 10 seconds East, 1,587.99 feet to a point;
THENCE the following three (3) courses and distances:
South 47 degrees 31 minutes 00 seconds West, 476.96 feet;
South 36 degrees 19 minutes 50 seconds West, 130.00 feet;
South 42 degrees 27 nfinutes 40 seconds West, 459.41 feet to the northeasterly side of Depot Lane;
THENCE the following two (2) courses and distances along the northeasterly side of Depot Lane:
North 40 degrees 48 minutes 00 seconds West, 151.52 feet;
North 39 degrees 24 minutes 00 seconds West, 42.34 feet to the division line between Lot Nos. 5 and 6
as shown on abovementioned map, the point or place of BEGINNING.