HomeMy WebLinkAboutL 12684 P 634SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT
N-m~er of Pages: 23
Receipt N-m~er : 12-0016208
TRANSFER TAX NUMBER: 11-13806
District:
1000
Deed Amount:
Recorded:
At:
LIBER:
PAGE:
Section: Block:
107.00 05.00
EXAMINED AND CHARGED AS FOLLOWS
$824,434.00
02/09/2012
02:1Z~30 P~
Received the Following Fees For Above Instrument
Exempt
Page/Filing $115.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert. Copies $14.95 NO R~T
Transfer tax $0.00 NO Comm. Pres
Fees Paid
TRANSFER TAX NUMBER:
11-13806
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
D00012684
634
JUDITH A. PASCALE
County Clerk, Suffolk County
Lot:
001.004
$20.00
$1s.oo
$o.oo
$30.00
$0.00
$204.95
Exempt
NO
NO
NO
NO
NO
· Nuatberof'pages,' (5~5
This document will be public
record. Please remove all
Social Security Numbers
prior to recording.
RECORDED
2012 Feb 09 02:11:93 RH
JUDITH R, PASCRLE '
CLERK OR
SUFFOLK COUNTY
L 000012684
P 6~4
PT# 11-19806
Deed/Moagage Instrument Deed/MortgageTax Slamp [ Recording/Filing Stamps
3 [ FEES
Notation
EA-52 17 (Counly)
EA-5217 (Sidle)
R.P.T.S.A. '~d J
Corem. of Ed, 5. O0
NYS Sumharge 15, O0
Other
Real Property
Tax Service
Agency
Verification
Grand Total 30¢ ~
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Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO:
Mortgage Amt
1. Basic Tax
2. Additional Tax
Sub Total
SpecJAssit.
or
Spec, ladd,
TOT. MTG. TAX
Dual Town -- Dual Coumy
Held for Appointment --
T~ansfer Tax
Mansion Tax
The property covered by this mortgage is
YES or NO
5 I Community Prese~ation Fund
Consideration Amount $
CPF 'Fax Due ~ )/ e~ tO g-o /_
Improved
TD __
TD
Mail to: Judith A. Pascale, Suffolk County Clerk 7 J Title Company Information
310 Center Drive, Riverhead, NY 11901 Co. Name ~l,¢)~z4~/A~r/t~ 771Z~
www.suffolkcountyny, gov/clerk J Title// .,¢'//-?¢O~/-o~.~5~&,SW~'~r
Suffolk County Recording & Endorsement Page
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(SPECIFY TYPE OF INSTRUMENT) d~d
ffI~AO/Is~LE-y 7'7. oCRJ.~/,,q~ The premises herein is situated in
SUFFOLK COUNTY, NEW YORK.
TO In the TOWN of
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or HAMLET of
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on
the~Y,:~day of .lanuary, 2012 at Southold, New York. The parties are
Bradley T. Swain residing at 2226 Mohegan Drive, Apt. 302, Falls
Church, Virginia 22043 (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 #1000-107-5-1.1 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 .lohn T. Metzger, Peconic Surveyors, P.C., dated July 28,
2011 and last revised December 5, 2011 (a reduced copy of which is
attached hereto and made a part hereof and hereinafter referred to as
the "Survey"); and'
WHEREAS, the Property is located in the A-C Zoning District of
the Town of Southold; and
WHEREAS, the Property contains soils classified as Class 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 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 agricultural soils, to protect the scenic,
open space character of the Town and to protect the Town's resort and
' 'agri~LIItural 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 EIGHT HUNDRED TWENTY
FOUR THOUSAND FOUR HUNDRED THIRTY FOUR AND 00/100
DOLLARS ($824,434.00) and other good and valuable consideration
paid to the Grantor, the receipt of which is hereby acknowledged, the /
Grantor does here_by 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
tithe 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.
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 and is authorized under §64 of Town Law and §247
of the New York State General Municipal Law ("General Municipal
Law") to acquire fee title or lesser interests in land, including
development rights, easements, covenants, and other contractual
rights which may be necessary or desirable for the preservation and
retention of agricultural lands, open spaces and natural or scenic
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 Recognition
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 Baseline Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property are compatible with the
3
purposes of this Easement. In order to aid in identifying and
' 'docUr~enting 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 3ohn T. Metzger, Peconic
Surveyors. P.C., dated .luly 28, 2011 and last revised December 5,
201:1 and a Phase i Environmental Site Assessment dated August 16,
2011 by Nelson, Pope and Voorhis, LLC.
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 EASENENT
1.01 Type
This instrument conveys a Development Rights Easement (herein
called the "Easement"). This Easement shall consist of the limitations,
agreements, covenants, use restrictions, rights, terms, and conditions
recited herein. Reference to this "Easement" or its "provisions" shall
include any and all of those limitations, covenants, use restrictions,
rights, terms and conditions.
1.02 Definitions
"Development Rights" shall mean the permanent legal interest
and right to prohibit or restrict the use of the Property for anything
other than uses consistent with the terms of this Easement, including
4
. . agric~Jltural 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 ("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. 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
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.
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
5
.agent.s, successors, and assigns, and the word "Grantor and/or
Grafltee" when used herein shall include all of those persons or
entities.
ARTICLE TWO
SALE
GRANTOR, for EIGHT HUNDRED TWENTY FOUR THOUSAND
FOUR HUNDRED THIRTY FOUR AND 00/100 DOLLARS ($824,434.00)
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.
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:
3.0! Structures
No structures may be erected or constructed on the Property
except as permitted by the Southold Town Land Preservation
Committee ("Land Preservation Committee") and other applicable
provisions of the Town Code and Sections 1.02 and 4.06 of this
Easement.
3.02 Excavation and Removal of Naterials.; 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 s. ubsurface, 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
6
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.
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 Signs
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 be used for the creation or placement of utilities to
service adjacent properties, provided said properties are used in
agricultural production and are subject to a development rights
easement or other conservation instrument.
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
§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, and 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
, . exten, ding 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 Develc~pment 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 this
Easement, 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 R]~GHTS
4.0! 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
9
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 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 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 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
10
. . prod,uction and are otherwise consistent with and do not derogate from
or 8efeat 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
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 and
utilities to service adjacent properties used in
agricultural production and subject to a development
rights easement or other conservation instrument;
New construction, including drainage improvement
structures, provided such structures are necessary
for or accessory to agricultural production;
(iii)
Renovation, maintenance and repairs of any
existing structures or structures built or permitted
pursuant to this Section 4.06, provided the primary
purpose of the structure remains agricultural;
B. Conditions. Any allowable improvements shall protect
prime agricultural soils, agricultural production, 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 Lo 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.
I1
' ' ' 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.
12
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, 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
If 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
13
the date of this Easement, as evidenced by the documentation referred
' ' to ih Section 0.05, in order to protect the environmental, natural,
scenic and agricultural values of the Property. ]~n the event Grantor
fails to comply with the provisions of this section after reasonable
written notice is given to Grantor by Grantee, then, in addition to all
other remedies set forth herein, Grantee or its agents are hereby
authorized to enter upon the Property to implement the Plan, and to
recover the costs of such implementation from Grantor, as provided in
Section 5.02 and Section 6.03.
ARTICLE SIX
GRANTEE'S 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 four any other
purposes, except as provided in Section 5.04 and 6.03, or to permit
access upon the Property by the public or by any other governmental
agencies.
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
14
· . violat, ion 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 twenty (20) 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
(iii)
To enforce any term provision, covenant or obligation in
this Easement or to seek or enforce such other legal
and/or equitable relief or remedies as Grantee deems
necessary or desirable to ensure compliance with the
terms, conditions, covenants, obligations and purposes of
this Easement; provided, however, that any failure, delay'
or election to so act by Grantee shall not be deemed to be
a waiver or a forfeiture of any right or available remedy on
Grantee's part with respect to such breach, default, or
violation or with respect to any other breach, default or
violation of any term, condition, covenant or 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 twenty (20) 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
15
retur, n 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.
Mailed notice to Grantee shall be addressed to !ts principal office
recited herein, marked to the attention of the Supervisor and the Town
A~torney, 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 ARTICLE
S1[X 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. [f 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.
16
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between the
parties concerning its subject matter. Any prior agreement between
the parties concerning its subject matter shall be merged into this
Easement and superseded by it.
7.02 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 thereunder and with the Purpose of
this Easement, and shall be duly recorded.
This Easement is made with the intention that it shall qualify as
a Conservation Easement in perpetuity under Internal Revenue Code
§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
17
· Code., provided that transferee expressly agrees to assume the
resj3onsibility 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 Severabilit.y.
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 Inte(pretation
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
with a valuation date of July 26, 2010. The Proportionate Share is
71%. 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).
IN WITNESS WHEREOF, Grantor has executed and delivered and
Gran'tee has accepted and received this Grand of Development Rights
Easement on the day and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
· SWAIN
ACKNOWLEDGED AND ACCEPTED:
TOWN OF S~THOLD, Grantee
BY: ~
City/County of Fairfax
STATE OF NEW YORK)
COUNTY OF SUFFOLK), SS:
Commonwealth of Virginia
The fore§oing instrument__~., was acknowledged
Before me this ~_r~y of"'~%201_~oy ..
On the ~zlay o~ in t~e year 2012 before me, the
undersigned, personally app~-~red Bradley T. Swain, personally known to me or
proved to me on the basis of satisfactory ewdence 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.
5i~ur~/~;~ 'nf individdal taking acknowledgement
STATE OF NEW YORK ) Notary Public
Notary Registration Number;
COUNTY OF SUF?OLK ) SS; Mycommissionexpire$;_~..~
On this ~(~ day of ~'~rq~,t )' in the year 2012 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(les), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
PATRIOIA L F^LLON
Not,,~t Public, State Of New York
Qual fed n
Commission Expires Alii! 24, ~.~10'"
FIDELITY NATIONAL TITLE INSURANCE COMPANY
TITLE NO. Fl 1-7404-82586SUFF
SCHEDULE'S' (Description)
Amended 01/13/12
ALL that certain plot, piece or parcel of land, situate, lying and being at Mattituck, Town of Southold, County of Suffolk
and State of New York, bounded and described as follows:
Beginning at a monument on the easterly side of Mill Lane at the northwesterly comer of land now or formerly of
Thomas Coliccio & Loft Sulverbush and the southwesterly comer of the premises herein described; said monument being
North 18 degrees 58 minutes 10 seconds West, 300.00 feet from the comer formed by the intersection of the easterly side
of Mill Lane and the northerly side of Wickham Avenue;
Running Thence North 18 degrees 58 minutes 10 seconds West along the easterly side &Mill Lane, 654.65 feet;
Thence through land now or formerly of Bradley T. Swain the following two courses and distances:
1) North 72 degrees 46 minutes 10 seconds East, 333.15 feet; and
2) North 18 degrees 58 minutes l0 seconds West, 360.36 feet to land now or formerly of Lisa Caracciolo & Louis
Caracciolo Jr.;
Thence North 72 degrees 46 minutes 10 seconds East along said land, 318.93 feet to land now or formerly of B & H
Farms;
Thence along said land now or formerly of B & H Farms the following two courses and distances:
l) South 20 degrees 50 minutes 10 seconds East, 235.74 feet; and
2) South 20 degrees 09 minutes 00 seconds East, 789.59 feet to land now or formerly ofGiacinta & Raymond Dohren;
Thence South 76 degrees 25 minutes 20 seconds West along said land, 317.37 feet to land now or formerly of Thomas
Coliccio & Lori Silverbush aforementioned above;
Thence South 71 degrees 01 minute 50 seconds West along said land, 359.76 feet to the monument on the easterly side of
Mill Lane at the point or place of BEGINNING.
THE POLICY TO BE ISSUED under this commitment will insure the title to such buildings and improvements on the premises which
by law constitute real property.
FOR CONVEYANCING ONL Y: Together with all the right, title and interest of the party of the first part, of in and to the land lying
in the street in front of and adjoining said premises.
SCHEDULE.4-1 (Description)
Rev. (03/04)