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HomeMy WebLinkAboutL 12739 P 839 11111111 IIII VIII VIII VIII VIII VIII VIII VIII Illf IIII 111111 VIII VIII IIII IIII SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type o£ Instrument: EASEMENT Recorded: 08/09/2013 Number of Pages: 20 At: 04:42:23 PM Receipt Number 13-0099056 TRANSFER TAX NUMBER: 13-00883 LIBER: D00012739 PAGE: 839 District: Section: Block: Lot: 1000 115.00 02.00 006.000 EXAMINED AND CHARGED A5 FOLLOWS Deed Amount: $1,138,330.00 Received the Following Fees For Above Instrument Exempt Exempt Page/Filing $100.00 NO Handling $20.00 NO COE $5.00 NO NYS SRCHG $15.00 NO TP-584 $5.00 NO Notation $0.00 NO Cert.Copies $25.00 NO RPT $60.00 NO Transfer tax $0.00 NO Comm.Pres $0.00 NO Fees Paid $230.00 TRANSFER TAX NUMBER: 13-00883 THIS PAGE I5 A PART OF THE INSTRUMENT THIS IS NOT A BILL JUDITH A. PASCALE County Clerk, Suffolk County ' Number of pages REt;ORDED 2013 R~~~7 09 04:42:23 PM a JUDITH a. PpSCRtE This document will be public ctERt~ of SUFFOLK' GOUf~ITY record. Please remove all t Dr~oo12~39 Social Security Numbers P s~~ prior to recording. DT# 13-uoss3 Deed I Mortgage Instrument Deed /Mortgage Tax Stamp Recording /Filing Stamps 3 FEES Fage 1 Filing Fee r o o ~ Mortgage Amt. ` 1. Basic Tax Handling 20. 00 2: Additional Tax TP-584 5 Sub Total Spec JAssit. Notation ~ a~ °r EA-52 l7 (County) Sub Total Spec. lAdd. EA-5217 (state) TOT. MTG. TAX j~._,. Dual Town Dual County R.P.T.S.A. lLtl _ Held for Appoint ent Comm. of Ed. 5. 00 ~ Trans r ax Affidavit ~ Mansion Tax ~j ~@s ~ The property covered by this mortgage is Certified Co _~CJ~~ or will be improved by a bne or two NYS Surcharge 15. 00 family dwelling only. Sub Total ~ 0 ~ ©d y~ or NO Other - -~O Grand Total ! „ If NO, see appropriate tax clause on page # of thi 'nstry}nent, ~ 4 Disc./Q~71 Sertinn //.~R-D Rlock ~1,~-a~ Lot dDG,O~ 5 Community Preservati(oJn /~~nd Real Property 13020677 1000 ii5ao 0200 005000 onsideration Amount ,,~~38~3~• ~ Agency F2 pTM q Verif cation o5 uG 1 I ~I[~I~ ~ull IIl~I I~I! ~WI I~I~I Ill WI ~I ~~1 PF ax Due $ _ Improved 6 Satisfacti~..~,...,.....~.b.,,.,.._..,..,._...........,.r--•,-_...------._.._._o..~ddress RECORD & RETCJRN TO: Vacant'lLand m~L-/3N1~ ~D~O~SKl~ c~.e. ~dM TD ~V `~~1CUN OG cSoclTEitl~lJ ,CAn'o P/e~3EE0.?RT/O~v ~~+°f~ TD #'D, BoX f/97/ Mail to: Judith A. Pascale, Suffolk County Clerk 7 Title Com an In€ormation 310 Center Qrive, Riverhead, NY 11901 am ~ . . ~ wvvw.suffolkcountyny.govlelerk Title # S Suffolk Countv Recording $i Endorsement Page This page forms part of the attached (~,pn~s~aN •~SSEmE~ made by: !y~ ~ (SPECIFY TYPE OF INSTRUMENT) /~/AL}iPA7270K9 I~,e~?d ~ The premises herein is situated in. SUFFOLK COUNTY, NEW YORK. TO In the TOWN of ~du~d/~D ~U/~1/ O>% ~14tGT.I{9~CD In the VILLAGE or HAMLET of BOXES 6 THRU 8 MUST BE TYPED Ok PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING. ia-ma..iaoetk (nverl ' . Deed of Conservation Easement THIS CONSERVATION EASEMENT {"Easement") is granted this ~ day of July 2013, by MAARATOOKA NORTH, LLC, having an address at 30 East Gate Drive, Huntington, New York 11743 ("Grantor") to the TOWN OF SOUTHOLD ("Grantee"), a New York municipal corporation having its principal office at 53095 Main Road, P.Q. Box 1179, Southold, New York 11971. WHEREAS: A. Grantor is the owner of certain real property (the "Property") consisting of 22.50 acres, located on 17405 NYS Route 25, Mattituck, in the Town of Southold, Suffolk County, New York, designated as SCTM# 1000-115-2-5, of which 18.00 acres is subject to this Deed of Conservation Easement (hereinafter, the "Property") and more fully described in the legal survey description of the Property ("EXHIBIT A") and shown on the reduced copy of the survey ("EXHIBIT B"), both attached hereto and made a part hereof. B. Grantee is a municipal corporation and has the authority pursuant to Section 247 of the General Municipal Law and Article 49, Title 3 of the New York Environmental Conservation Law {the "ECL") to acquire conservation easements. C. The Property consists primarily of productive agricultural land. The Property contains 18.00 acres of prime soils as defined by the U.S. Department of Agriculture Natural Resources Conservation Service. D. Article 14, Section 4 of the New York State Constitution states that "the policy of this state shall be to conserve and protect its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products;" E. In Section 49-0301 of the ECL, the Legislature of the State of New York found and declared that "in order to implement the state policy of conserving, preserving and protecting its environmental assets and natural and man-made resources, the preservation of open spaces, and the preservation, development and improvement of agricultural and forest lands..., is fundamental to the maintenance, enhancement and improvement of...balanced economic growth and the quality of life in all areas of the state;" F. The Property is located within Suffolk County's Agricultural District #l, created pursuant to Article 25AA of the New York State Agriculture and Markets Law. [n Section 300, it states: "It is hereby found and declared that many of the agricultural lands in New York State are in jeopardy of being lost far any agricultural purposes. When nonagricultural development extends into farm areas, competition for limited resources results...It is therefore the declared policy of the state to conserve, protect and encourage the development and improvement of its loutofl6 ! ~ ~ , agriculturaE land for production of food and other agricultural products...It is the purpose of this article to provide alocally-initiated mechanism for the protection and enhancement of New York State's agricultural land as a viable segment of the local and state economies and as an economic and environmental resource of major importance;" G. Article 25-AAA, Section 321 of the Agriculture and Markets Law states that "It is hereby found and declared that agricultural lands are irreplaceable state assets. In an effort to maintain the economic viability, and the environmental and landscape preservation values associated with agriculture..." the Commissioner is authorized to administer programs to assist counties in developing agricultural and farmland protection plans and to assist both county and municipal governments in the implementation of such plans. The Commissioner gives priority to projects that will preserve viable agricultural land, are located in areas facing signifcant development pressure and serve as a buffer for a significant natural public resource containing important ecosystem or habitat characteristics; H. The Property is located within the Town of Southold, which has adopted the Southold Town Farm and Farmland Protection Strategy, dated January, 2000. The Plan recommends that the Town continue its efforts to preserve land suitable for farming and ensure that farming remains an important part of the local economy. The Plan also recommends that the Town participate in partnership efforts with the Federal, State and County governments and related grant programs in order to use the Town's limited financial resources most eFfectively. i. The Property is also located within the County of Suffolk, which has adopted an Agricultural and Farmland Protection Plan dated June 199b, which reconvnends the continued preservation of productive farmland through the purchase of development rights. In addition, the Plan sets forth the following goals: to preserve agriculture as an important industry in Suffolk County, preserve farmland as an important natural resource, and preserve the cultural continuity of farms and farm families. The plan seeks to preserve 20,000 acres of productive farmland through the purchase of development rights and to ensure that public policy protects, promotes and sustains agriculture. J. Grantor has received independent legal and financial advice regarding this Easement to the extent that Grantor has deemed necessary. Grantor freely signs this Easement in order to accomplish its conservation purposes. NOW, THEREFORE, in consideration of the foregoing, ONE MILLION ONE HUNDRED THIRTY-EIGHT THOUSAND THREE HUNDRED THIRTY AND 00100 Dollars ($1,138,330.00} and the mutual covenants, terms, conditions and restrictions contained herein, the parties agree as follows: 1. Grant o[ Conservation Easement. Grantor hereby grants and conveys to Grantee, a Conservation Easement (the "Easement"), an immediately vested interest in real property defined by Article 49, Title 3 of the ECL of the nature and character described herein, for the benefit of the general public, which Easement shall run with and bind the Property in perpetuity. Grantor will neither perform, nor knowingly allow others to perform, 2 out of 16 1 ' 1 any act on or affecting the Property that is inconsistent with the covenants contained herein. Grantor authorizes Grantee to enforce these covenants in the manner described below. 2. Purpose. The Primary Purpose of this easement is to conserve viable agricultural land and soil resources by preventing uses of the Property that will significantly impair or interfere with the Property's agricultural and forestry viability and productive capacity. 3. Implementation. This Easement shall be implemented by limiting and restricting the development and use of the Property in accordance with its provisions. The Property remains subject to all applicable local, state and federal laws and regulations. This Easement and the administration of its provisions shall not unreasonably restrict or regulate farm operations in contravention of the purposes of Article 25- AA of the Agriculture and Markets Law. 4. Definitions. 4.{a}. "Grantor" or "owner" include the original Grantor, its heirs, successors and assigns, all future owners of any legal or equitable interest in all or any portion of the Property, and any party entitled to the possession or use of all or any part thereof. 4.(b). "Grantee" includes the original Grantee(s) and its successors and assigns. 4.(c). "Farm Labor Housing" means dwellings ar structures, together with accessory improvements used to house seasonal andlor full-time employees where such residences are provided by the farm landowner andlor operator, the worker is an essential employee of the farm landowner andlor operator employed in the operation of the farm and the farm worker is not a partner or owner of the Farm Operation. For instance, a structure used as the primary residence of a farm owner is not "farm labor housing". 4.(d). "Farm Operation" shall be defined in accordance with Section 301 of the New York State Agriculture and Markets Law {"Agriculture and Markets Law"), or such successor law as enacted or amended. 4.(e}. "Impervious Surfaces" are defined as structures or improvements that permanently cover soil resources. Impervious Surfaces do not include permeable surfaces such as gravel roads and parking areas; structures whose principal purpose is to protect soil and water resources, such as manure storage areas; and structures and improvements lacking permanent foundations. In determining the square footage of Impervious Surface within any structure or improvement on the Property, only those surfaces actually covered with sidewalks, driveways or a continuous foundation that individually would be deemed to be Impervious Surface shall be included in any such measurement. Under no circumstances shall a 3 out of 16 concrete footing associated with any structural support post or column that is not part of a continuous foundation ever be included in any such measurement of Impervious Surface. 4.(f). "Sound Agriculture! Practices" is defined as those practices necessary for on-farm production, preparation and marketing of agricultural commodities, provided such practices are legal, necessary, do not cause bodily harm or property damage off the farm, and achieve the intended results in a reasonable and supportable way. If necessary, to determine if a practice is "sound," Grantee ar Grantor may request that the New York State Department of Agriculture and Markets initiate a sound agricultural practice review pursuant to Section 308 of the New York State Agriculture and Markets Law, or any successor law as enacted or amended. 4.(g}. "Viable Agricultural Land" is defined as land highly suited for agricultural production. 5. Reserved Rights Retained by Grantor. As the owner of the Property, Grantor reserves all customary rights and privileges of ownership, including the right of exclusive use, possession and enjoyment of the Property, the rights to sell, lease, and devise the Property, as well as any other rights consistent with the Purpose set forth in Section 2 {"Purpose") and not specifically prohibited or limited by this Easement. Under no circumstances shall commercial airstrips or commercial helicopter pads or similar improvements be constructed or operated on the Property. However, nothing in this Easement relieves Grantor of any obligation with respect to the Property or restriction on the use of the Property imposed by law and nothing in this Easement shall require Grantor to take any action to restore the condition of the Property after any Act of God or Force Majeure. 5.(a}, Right to Use Property for Agricultural Uses. Grantor shall have the right to engage in all types of agricultural production as the term is referenced in §247 of the General Municipal Law and/or defined in Chapter 70 of the Town Code, or such successor law as enacted or amended, and including the production of crops, livestock and livestock products as defined in §301(2){a)-(j) of the Agriculture and Markets Law, or such successor law as enacted or amended, or as said §30l (2)(a)- (j) may be amended. The processing or retail merchandising of such crops, livestock or livestock products, and a riding academy shall not be considered agriculture! production. 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 above, "U-Pick" activities shall be deemed a harvesting activity, which is part of a typical agricultural use of the Properly, and, therefore, shall 4 out of ib ` . not be deemed a recreational use. 5.{b}. Right to Use Property for Recreational Purposes. Grantor retains the right to use the Property for otherwise lawful personal recreational uses, including, but not limited to, hunting, fishing, cross-country skiing, camping, horseback riding and snowmobiling, subject to the limitations set forth in this Easement, including Section 8 {"Construction of Buildings and Other Improvements"). In all cases, such recreational uses must be compatible with the Purpose of this Easement and subordinate to the agricultural use of the Property. Under no circumstances shall athletic fields, golf courses or ranges, or other similar recreational improvements he constructed. fi. Conservation Plan. Grantor and Grantee recognize that changes in economic and environmental conditions, in agricultural technologies, in accepted farm management practices and in the Farm Operations of Grantor may result in changes in the agricultural uses of the Property. It is the intention of this Easement to maintain Grantor's discretion to employ its choices of farm uses and management practices so long as those uses and all farming operations are conducted in accordance with Sound Agricultural Practices as defined herein and in a manner consistent with a Conservation Plan prepared by a qualified conservation professional or by the local Soil and Water Conservation District in cooperation with the Grantor. The Conservation Plan shall identify potential adverse environmental impacts of agricultural activities, as well as enhance the agricultural productivity and economic viability of the Property. This plan shall be updated periodically and whenever the Farming Operation changes substantially. Upon request, Grantor shall provide a copy of the most current plan to Grantee. 7. ACCQSS. Nothing contained in this Easement shall give or grant to the public a right to enter upon or to use the Property or any portion thereof where no such right existed in the public immediately prior to the execution of this Easement. 8. Construction of Buildings and Other Improvements. Grantor may undertake construction, erection, installation, removal or placement of buildings, structures, or other improvement to the Property only as provided in this Easement and set forth below. $.{a). Impervious Surfaces Subject to the limitations set forth below, Impervious Surfaces may be constructed or placed on up to a maximum of Z O% of the Property. 8.{b). Fences Existing fences may be repaired, removed and replaced, and new fences may be built on the Property for purposes of reasonable and customary management of livestock and wildlife, safety and general management and to prevent trespassing on the Property. 8.(c). Agricultural Structures and Improvements 5 out of l.b Any existing or subsequent agricultural structures and improvements may be repaired, removed, enlarged and replaced at their current locations, subject to the Impervious Surface coverage limitations set forth in Section ${a) ("Impervious Surfaces"). Subject to the Impervious Surface coverage limitations set forth in Section 8(a) ("Impervious Surfaces"), Grantor may construct buildings, structures and impervious improvements for such purposes related to the Farm Operation on up to 5% of the Property without permission of Grantee. With permission of Grantee, Grantor may construct buildings, structures and improvements related to the Farm Operation that would cover up to an additional 5% of the Property. For purposes herein, such buildings, structures and improvements shall not include those associated with manure processing and handling or any facilities associated with the processing or marketing of crops, iivestack, and l;vestock products, including a horse riding academy. 8.(d). Farm Labor Housing Subject to the Impervious Surface coverage limitations set forth in Section 8(a), Grantor may construct or place new dwellings or structures exclusively far Farm Labor Housing on up to one percent (1%) of the Property without permission of Grantee. The land on which these structures stand shall not be subdivided. 8.{e). Persona{ Recreational Structures, Improvements and Activities Structures, improvements and activities associated with personal recreational purposes, subject to Section 5(b), are permitted on the Property provided that such structures, improvements ar activities: {i) are compatible with the Purpose of this Easement; and (ii) are subordinate to the agricultural use of the Property; and (iii) with respect to structures and improvements only, comprise an aggregate footprint of no more than 400 square feet unless Grantee has received prior permission of Grantor pursuant to Section 16. 8.(f} Utility Services and Septic Systems Wires, lines, pipes, cables or other facilities providing electrical, gas, water, sewer, communications, or other utility services to or from the improvements permitted in this Easement may be installed, maintained, repaired, removed, relocated and replaced, and Grantor may grant easements over and under the Property for such purposes. Septic or other underground sanitary systems serving the improvements permitted herein may be installed, maintained, repaired or improved. All such services and systems shall serve only structures and improvements located an the Property and shall be compatible with the Purpose of this Easement, subordinate to the agricultural use of the Property and located in a manner that minimizes the impact to prime or statewide important soils. 8.{g}. Alternative Energy Structures and Improvements 6 out of 16 Structures and improvements necessary to undertake alternative energy activities such as wind, solar, and other similar energy generation activities are permitted as further described below, provided they are compatible with the Purpose of this Easement, subordinate to the agricultural use of the Property, and located in a manner that mirtimizes the impact to prime or statewide important soils. Subject to the Impervious Surface coverage limitations set forth in Section $(a) ("Impervious Surfaces"), such structures and improvements, including roads and drainage ditches, may be built on the Property only with the permission of Grantee, which may be conditioned upon the posting of a bond. These structures and improvements are permitted only if the activity is limited and localized in impact affecting no more than two percent (2%) of the Property at one time. Prior to determining the location of a site far these structures and improvements on the Property, the Grantor shall notify the Grantee, the New York State Department of Agriculture and Markets, and the local Soil and V?~ater Conservation District to give them an opportunity to participate in an onsite meeting to review proposed locations. Grantor shall agree to comply with the New York State Department of Agriculture and Markets guidelines for agricultural mitigation for construction of such structures. 9. Maintenance and Improvement of Water Sources. Grantor may use, maintain, establish, construct, and improve water sources, water courses and water bodies within the Property for the uses permitted by this Easement, provided Grantor does not significantly impair or disturb the natural course of the surface water drainage on the Property. Notwithstanding the above, Grantor may alter the natural flow of water over the Property in order to improve drainage of agricultural soils, reduce soil erosion and/or flooding, provide irrigation for the Property or improve the agricultural or forest management potential of the Property, provided such alteration is consistent with the Conservation Plan, Sound Agricultural Practices, the Purpose of this Easement and is carried out in accordance with applicable local, state and federal laws and regulations. l0. Water Rights. Grantor may use any appurtenant water rights sufficient to maintain the agricultural productivity of the Property in accordance with applicable local, state and federal laws and regulations. Grantor shall not transfer, encumber, lease, sell or otherwise sever such water rights from title to the Property itself. 11. Subdivision. The Property is not be further subdivided pursuant to Town Law Sections 265, 27b or 277 or Section 335 of the Real Property Law, as they may be amended, or any other applicable State or local law, except as provided herein. As required by applicable law and subject to approval by the Planning Board of the Town of Southold, Grantor may only subdivide the Property provided that (1) each resulting parcel contains at least l0 acres of Viable Agricultural Land and {2) each such parcel is permanently protected with a perpetual conservation easement (whose purpose is equivalent to that stated herein in section 2}. 7 out of 16 The right to construct Impervious Surfaces as set forth in Paragraph 8(a) shall be allocated at the time of a proposed subdivision. Such allocation of rights shall not result in greater than 10% of the Property being covered by Impervious Surfaces. At the discretion of Grantee, a functionally and materially equivalent Easement may be recorded simultaneously with the filing of the subdivision map. Except as provided above, any other subdivision, recording of a subdivision plan, partition, or any other attempt to internally or externally divide the Property into two or more parcels is prohibited. Mortgages, or other non-possessory interests in land do not constitute subdivisions for the purpose herein, provided such interests encompass the whale parcel. 12. Forest Management. Without permission of Grantee, Grantor may clear forested areas for conversion to farmland, harvest wood for use on the Property including heating or construction of buildings and improvements, manage forested areas for wildlife habitat and recreation, and remove trees that are fallen, dead, diseased or invasive, so long as such activities are consistent with generally accepted forest best management practices. Without permission from Grantee, Grantor may commercially harvest timber and other wood products, conduct timber stand improvements and construct, maintain, remove, and repair unpaved access roads and "staging areas", those areas where logs are temporarily stored for transport necessary for such activities. All such activities shall be in accordance with generally-accepted forestry best management practices. Such commercial timber harvests and timber stand improvements shall be carried out in accordance with a forest management plan and harvest plan prepared by a forester who is certified by the Society of American Foresters or such successor organization as is later created, a Cooperating Consulting Forester with the New Yark State Department of Environmental Conservation or a qualif ed forester approved by Grantee. 1n order to facilitate the monitoring and stewardship of this Easement, and ensure continuing communication between parties, Grantor shall give Grantee, its successors or assigns, written notice not less than forty-five (45} days prior to the anticipated commencement of any commercial timber harvest ar timber stand improvement. Such written notice shall include submission of the current forest management plan and harvest plan. 13. Removal of Materials; Mining; Exeavatian The removal of topsoil, sand, gravel, or other material for exportation andlor sale shall be prohibited. Mineral exploitation, and extraction by any method, surface or subsurface, is prohibited. Soil may only be moved and/or removed in accordance with a Conservation Plan (Section 6), to promote required drainage activities, to construct and maintain permitted structures and improvements on the Property, and for agricultural uses. 14. Road Construction. $ out of ib Subject to the Impervious Surface coverage limitations set faith in Section 8(a} ("Impervious Surfaces"), Grantor may construct roads necessary to provide access to, and parking for, permitted buildings or improvements, or to conduct other activities permitted by this Easement. Roads constructed on the Property shall be located in a manner that minimizes impacts to the prime and statewide important soils. 15. Dumping and Trash. The dumping, land filling, burial, application, injection, or accumulation of any kind of garbage, trash or debris on the Property is prohibited, other than agriculturally-related waste or biodegradable material in accordance with Sound Agricultural Practices and any applicable State or federal law ar regulation. However, this shall not prevent the storage of agricultural products and byproducts, the storage of old farm equipment used for parts, and composting or re-use of biodegradable materials as permitted in Section 5(a} ("Right to Use Property for Agricultural Uses"), generated off the Property for non-commercial use on the Property, so long as they are used and stored in accordance with Sound Agricultural Practices. No biodegradable material used for composting, whether generated on the Property or imported to the Property, may be used for resale. Notwithstanding the foregoing, the storage and treatment of sewage associated with buildings permitted on the Property is permitted by this Easement. 16. Permission of Grantee. When Grantor is required to obtain Grantee's permission for a proposed action pursuant to the Easement, such permission shall be requested in writing. Grantee shall grant permission unless it determines that such action is 1}incompatible with the Purpose of this Easement or 2) not subordinate to the agricultural use of the Property. Such permission shall not be unreasonably withheld. Grantee shall respond with a decision in writing within forty-five (45) days of receipt of the Grantor's written request which shall include all relevant building plans identifying the use, footprint and total square footage of any proposed structures, and related survey information, if available. If mutually agreed upon by Grantee and Grantor, this timeline may be reasonably extended. Grantee shall not be liable for damages for any failure to grant permission to Grantor. The permission contemplated in this Paragraph is in addition to any other approvals that may be required by the Town Cade of Southold (the "Town Code"). 17.Ongoing Responsibilities of Grantor and Grantee. Other than as specified herein, this Easement is not intended to impose any legal or other responsibility on Grantee, or in any way to affect any obligations of Grantor as owner of the Property, including, but not limited to, the following: 17.(a). Taxes Grantor shall be solely responsible for payment of all taxes and assessments levied against the Property. If the Grantor becomes delinquent in payment of taxes the Grantee, at its option, shall have the right to take such actions as may be necessary to protect the Grantee's interest in the Property and to assure the continued enforceability of this instrument and to recover all of its costs including reasonable attorney's fees. If, as a result of such actions, Grantee ever pays any taxes or assessments on Grantors interest in the Property, Grantor will promptly reimburse Grantee 9outofl6 for the same. 17.{b). Upkeep and Maintenance Grantor shall be solely responsible for the upkeep and maintenance of the Property, to the extent required by law and this Easement. Grantee shall have no obligation for the upkeep or maintenance of the Property. 17.{c). Liability and Indemnification Grantor agrees to indemnify and hold Grantee and the State of New York, Department of Agriculture end Markets harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys fees arising from any personal injury, accidents, negligence or damage relating to the Property, or any claim thereof, unless due to the negligence of Grantee or its agents, in which case liability shall be apportioned accordingly. 18. Extinguishment of Development Rights. Except as otherwise reserved to the Grantor in this Easement, all non-agricultural development rights appurtenant to the Property are hereby released, terminated and extinguished, and may not be used on or transferred to any portion of the Property as it now or hereafter may be bounded or described, or to any other property adjacent or otherwise, or used for the purpose of calculating permissible lot yield of the Property or any other property. 19. Baseline Documentation. By its execution of this Easement, Grantee acknowledges that the present uses of, and related structures and improvements on the Property are permitted by this Easement. In order to evidence the present condition of the Property so as to facilitate future monitoring and enforcement of this Easement, a Baseline Documentation Report, including relevant maps and photographs, describing such condition at the date hereof, has been prepared and subscribed by both parties, and a copy thereof has been delivered to Grantor and a copy will be kept on file with Grantee. The Report may be used by Grantee to establish that a change in the use or character of the Property has occurred, but its existence shall not preclude the use by Grantee of other evidence to establish the condition of the Property as of the date of this Easement. 20. Right of inspection. Grantee shall have the right to enter upon the Property with forty-eight (48) hours advance notice to Grantor for the purpose of inspecting for compliance with the terms of this Easement. Such inspection shall be conducted between the hours of 9 a.m. and 7 p.m. on a weekday that is not a legal holiday recognized by the State of New York or at a date and time agreeable to the Grantee and Grantor. In the instance of a violation or suspected violation of the terms of this Easement which has caused or threatens to cause irreparable harm to any of the agricultural or other resources this Easement is designed to protect, no such advance notice is required. Representatives ofthe New York State Department of Agriculture and Markets shall have the same right of inspection. 10 out of 16 . 21. Enforcement. If Grantee determines that a violation of this Easement has occurred, Grantee shall so notify Grantor, giving Grantor thirty (30) days to cure the violation. Notwithstanding the foregoing, where Grantee in Grantee's sole discretion determines that an ongoing or threatened violation could irreversibly diminish or impair the Purpose of this Easement, Grantee may bring an action to enjoin the violation, ex parte if necessary, through temporary or permanent injunction. In addition to injunctive relief, Grantee shall be entitled to seek the following remedies in the event of a violation: (a) money damages, including damages for the loss of the resources protected under the Purpose of this Easement; and (b) restoration of the Property to its condition existing prior to such violation. Said remedies shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or inequity. In any case where a court finds that a violation has occurred, Grantor shall reimburse Grantee for all its expenses incurred in stopping and correcting the violation, including, but not limited to, reasonable attorneys' fees. The failure of Grantee to discover a violation or to take immediate legal action shall not bar Grantee from doing so at a later time. In any case where a court finds no violation has occurred, each party shall bear its own costs. 22. Transfer of Easement. Grantee shall have the right to transfer this Easement to any private non-governmental organization or public agency that, at the time of transfer is a "public body" or "not-for-profit conservation organization" as defined by Article 49 of New York State Environmental Conservation Law or "qualified organization" under Section 170(h) of the Code, provided the transferee expressly agrees to assume the responsibility imposed on Grantee by this Easement. If Grantee ever ceases to exist or qualify under Article 49 of New York State Environmental Conservation Law and Section 170(h) of the Code, a court of competent jurisdiction shall transfer this Easement to another qualified organization having similar purposes that agrees to assume the responsibilities imposed by this Easement. Grantor and the New York State Department of Agriculture and Markets must be notified in writing in advance of any such transfer. The Department of Agriculture and Markets must approve the choice of any new non-governmental organization or public agency designated as "Grantee" and shall not unreasonably withhold or delay such approval, 23. Transfer of Property. Any subsequent conveyance, including, without limitation, transfer, lease or mortgage of the Property, shall be subject to this Easement, and any deed or other instrument evidencing or effecting such conveyance shall contain language substantially as follows: "This conveyance, lease, mortgage, easement, etc. is subject to a Conservation Easement which runs with the land and which was granted to the Town of Southold, Suffolk County, New York by instrument dated July 30, 2013, and recorded in the office of the Clerk of Suffolk County at Liber Pa e " Grantor shall notify Grantee and the New York State Department of Agriculture and Markets in writing at least thirty (30) days before conveying the Property, or any part thereof or interest therein, to any third party. The failure to notify Grantee or New York State Department of Agriculture and Markets or to include said language in any deed or instrument shall not, however, affect the 11 out of 15 + validity or applicability of this Easement to the Property or limit its enforceability in any way. 24. Alienation No property rights acquired by Grantee hereunder shall be alienated except upon notice to the New York State Department of Agriculture and Markets and pursuant to the provisions of Chapter 70 of the Town Code, or any successor chapter, 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 these property rights or interests which were acquired by the Town prior to any such amendment. In the event of any such alienation as provided in this Section 24, Section 27 {"Proceeds") of this Easement shall apply to such alienation. 25. Amendment of Easement. This Easement may be amended only with the written consent of Grantee and current Grantor and with the approval of the New York State Department of Agriculture and Markets. Any such amendment shall be consistent with the Purpose of this Easement and shall comply with the Environmental Conservation Law or any regulations promulgated thereunder, and shall not unreasonably restrict or regulate farm operations in contravention of the purposes of Article 25-AA of the Agriculture and Markets Law or such successor law as enacted or amended. Any such amendment to this Easement shall be duly recorded. 26. Extinguishment of Easement. At the mutual request of Grantor, Grantee, and the New York State Department of Agriculture and Markets, 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 2 {"Purpose"), extinguish or modify this Easement in accordance with applicable law. In that case, the mere cessation of farming on the Property shall not be construed to be grounds for extinguishment of this Easement. Notwithstanding the foregoing, if condemnation by exercise of the power of eminent domain, make impossible the continued use of the Property for the Purpose of this Easement as described in Section 2 ("Purpose") herein, the restrictions may be extinguished by judicial proceeding. In either case, upon any subsequent sale, exchange or involuntary conversion by the Grantor, Grantee shall be entitled to a portion of the proceeds from any subsequent sale or other disposition of the Property, or title insurance proceeds, in accordance with Section 27 ("Proceeds") herein. In the event that Grantor retains the Property subsequent to any such extinguishment or partial extinguishment, Grantee shall be entitled to receive from Grantor an amount equal to the fair market value of the Property or a portion of the Property as to which the extinguishment applies times the percentage determined under Section 27. 27. Proceeds. The grant of this Easement gives rise to a property right, immediately vested in Grantee, which, for 12 out of ~.6 purposes of calculating value in the event of any such extinguishment or partial extinguishment, alienation or proceeds from a sale or other disposition of the Property as contemplated under Section 24 ("Alienation") or Section 26 ("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, also calculated as of the date hereof. The Proportionate Share is 76%. The Aroportionate 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 an the Property). With regard to the portion of such Proportionate Share equal to that paid using State Farmland Protection Program Grant funds, Grantees agree to use such portion in a manner consistent with the primary Purpose of this Easement; to enable land to remain in active agricultural and forestry use. Prior to such re-use, Grantee must notify the New York State Department of Agriculture and Markets 2$. Interpretation. This Easement shall be interpreted under the laws of the State of New York, or federal law, as appropriate. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed to affect the Purpose of this Easement. If any provision in this Easement is found to be ambiguous, an interpretation consistent with the Purpose of this Easement that would render the provision valid shall be favored aver any interpretation that would render it invalid. 29. Successors. Every provision of this Easement that applies to Grantor or Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and other successors in interest, and shall continue as a servitude running in perpetuity with the Property. 30. Severability. Invalidity of any of the covenants, terms or conditions of this Easement, or any part thereof, by court order or judgment shall in no way affect the validity of any of the other provisions hereof which shall remain in fiill force and effect. 31. Notices. Any notice required or desired to be given under this Easement shall be in writing and shall be sent (i) by personal delivery, {ii}via registered ar certified mail, return receipt requested, or {iii) via Federal Express or other private courier of national reputation providing written evidence of delivery. Notice shall be deemed given upon receipt in the case of personal delivery, and three (3) business days after same is delivered to a post office or deposited in an official depository under the exclusive care and custody of the United States Postal Service. All notices shall be properly addressed as follows: (a) if to Grantee, at the address set forth above; (b) if to Grantor, at the address set forth above; {c} if to any subsequent owner, at the address of the Property; or (d) if to New York State Department of Agriculture and Markets, l OB Airline Drive, Albany, New York 12235. Any party can change the address to which notices are to be sent to him, her or it by duly giving notice pursuant to this Section. 13 out of 16 32. Title. The Grantor covenants and represents that the Grantor is the sole owner and is seized of the Property in fee simple and has good right to grant and convey the aforesaid Easement; that the Property is free and clear of any and all mortgages not subordinated to this Easement, and that the Grantee shall have the use of and enjoyment of the benefits derived from and existing out of the aforesaid Easement. 33. Subsequent Liens on Property. No provisions of this Easement should be construed as impairing the ability of Grantor to use this Property, or a portion thereof encompassing entire separately deeded parcels, as collateral for a subsequent borrowing. Any subsequent liens on the Property must be subordinate to this Easement. 3A. Subsequent Encumbrances. The grant of any easements or use restrictions is prohibited, except with the permission of Grantee. Any future encumbrances shall be consistent with the primary Purpose of this Easement and shall not unreasonably restrict or regulate farm operations in contravention of the purposes of Article 25-AA of the Agriculture and Markets Law. 35. Grantor's Environmenta! Warranty. Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property, as such substances and wastes aze defined by applicable law, and hereby promises to hold harmless, defend, and indemnify Grantee and New York State Department of Agriculture and Markets against and from, any and all loss, cost, claim {without regard to its merit), liability or expense (including reasonable attorneys' fees) arising from or with respect to any release of hazardous waste or violation of environmental laws. If at any time after the effective date of this Easement there occurs a release in, on, or about the property of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, Grantor agrees to take all steps that may be required under federal, state, or local law necessary to assure its containment and remediation, including any cleanup. Nothing in this Easement shall be construed as giving rise to any right or ability in Grantee, or the New York State Department of Agriculture and Markets to exercise physical or management control over the day-to-day operations of the Property, or any of Grantor's activities on the Property, or otherwise to become an operator or arranger with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended {"CERCLA") or any corresponding state and local statute or ordinance. 36. Duration of Easement. Except as expressly otherwise provided herein, this Easement shall be of perpetual duration, and no merger of title, estate or interest shall be deemed effected by any previous, contemporaneous, or 14 out of 1b ~ ' subsequent deed, grant, or assignment of an interest or estate in the Property, or any portion thereof, to Grantee, it being the express intent of the parties that this Easement not be extinguished by, or merged into, any other interest or estate in the Property now or hereafter held by Grantee. 37. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings and agreements relating to the Easement, all of which are merged herein. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment that complies with Section 25 ("Amendment of Easement"). 38. Waiver. No waiver by Grantee of any default, or breach hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default or breach hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No waiver shall be binding unless executed in writing by Grantee. 39. Binding Effect. The provisions of this Easement shall run with the Property in perpetuity and shall bind and be enforceable against the Grantor and all future owners and any party entitled to possess or use the Property or any portion thereof while such party is the owner or entitled to possession ar use thereof. Notwithstanding the foregoing, upon any transfer of title, the transferor shall, with respect to the Property transferred cease being a Grantor or owner with respect to such Property for purposes of this Easement and shall, with respect to the Property transferred, have no further responsibility, rights or liability hereunder for acts done or conditions arising thereafter on or with respect to such Property, but the transferor shall remain liable for earlier acts and conditians~ done or occurring during the period of his or her ownership or conduct. 40. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. IN WITNESS WHEREOF, Grantor and Grantee, intending to be legally bound hereby, have hereunto set their hands on the date first above written. M RATOO NORT C Grantor: I r By: ric D. Kei ,Managing Member TOWN OF SO HOLD Grantee• Q By: SC A. RUSSELL, Supervisor 15 out of 16 ~r , 'e State of New York ) County of ss: On the ~_day of July in the year 2013 before me, the undersigned, personally appeared Eric D. Keil, personally known to me or proved to me on the basis of satisfactory evidence to be the individual {s) whose name {s} is (are} subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity {ies), and that by his/her/their signature(s) on the instrument, the individuals}, or the person unpon behalf of which the individual{s) acted, executed the instrument. _ ~`Q.tiLe~e..~_~ Signature/office of individual taking acknowledgement State of New York ) PATRICIA L. FALCON Notary Public, State Of New York No. 01 FA4950146 f~ County of ,~t,I Ff°~ ss: Qualified In Suffolk Ca{ ` 24, Cornetission Expires Ap o~"' . On the ~ day of July in the year 2013 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 instnzment and acknowledged to me that he/she/they executed the same in his/her/their capacity (ies}, and that by his/herltheir signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual{s) acted, executed the instrument. Signatureloffice of individual taking acknowledgement PATRICIA L. FALCON Notary NO i01 ~ 49 0146 w York pualified In Suffolk County Commission Exp'sres Apnl 24~ ,fib 16 out of 16 SCHEDULE A Development Rights Easement Area ALL that certain plot, piece or parcel of land, situate, lying and being at Mattituck, Town of Southold, Suffolk County, New York, bounded and described as follows: BEGINNING at a concrete monument on the Northerly side of Main Road, N.Y.S. Route 25, at the Southwesterly corner of the premises herein described and the southeasterly corner of land now or formerly of Ruland; said monument being also distant easterly a tie distance of L 185 feet more or less, from the corner formed by the intersection of the easterly side of Mill Lane and the northerly side of Main Road; RUNNING THENCE North 18 degrees 34 minutes 22 seconds West, 490.66 feet to the true point or place of beginning; RUNNING THENCE South 87 degrees 36 minutes 20 seconds East 455.41 feet to land now or formerly of Sidor; RUNNING THENCE North 20 degrees 20 minutes 35 seconds West along said land now or formerly of Sidor, 2, i 16.75 feet to a monument and the southerly line of Long Island Railroad (MTA); RUNNING THENCE South 61 degrees 46 minutes 38 seconds West along said southerly line of~the Long Island Railroad (MTA), 365.77 feet to land now or formerly of Ruland first mentioned above; RUNN1TiG THENCE South 18 degrees 34 minutes 22 seconds East along said land now or formerly of Ruland, 1,887.27 feet to the point or place of BEGINNING. 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