HomeMy WebLinkAboutL 12745 P 450
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SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: AGREEMENT Recorded: 09/23/2013
Number of Pages: 34 At: 10:48:08 AM
Receipt Number : 13-0120140
TRANSFER TAX NUMBER: 13-05172 LIBER: D00012745
PAGE: 450
District: Section: Block: Lot:
1000 112.00 02.00 002.000
MORTGAGE TAX NUMBER: DE036183
EXAMINED AND CHARGED AS FOLLOWS
Deed Amount: $1,5141634.00
Received the Following Fees For Above Instrument
Exempt Exempt
Page/Filing $170.00 NO Handling $20.00 NO
COE $5.00 NO NYS SRCHG $15.00 NO
Affidavit $0.00 NO TP-584 $5.00 NO
Notation $0.00 NO Cert.Copies $22.10 NO
RPT $120.00 NO Transfer tax $0.00 NO
Comm. Pres $0.00 NO Mort.Basic $0.00 NO
Mort.Addl $0.00 NO Mort.SplAddl $0.00 NO
Mort.SplAsst $0.00 NO
Fees Paid $357.10
TRANSFER TAX NUMBER: 13-05172
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
JUDITH A. PASCALE
County Clerk, Suffolk County
R?2
Number of pages 34 RECORDED
2013 Sep 23 10:48:08 AM
JUDITH A. PASCALE
This document will be public CLERK OF
record. Please remove all SUFFOLK COUNTY
Social Security Numbers L 600012745
P 450
prior to recording. DE036183.
5
Deed / Mortgage Instrument Deed / Mortgage Tax Stamp Recording. / Filing Stamps
3 FEES
Page / Filing Fee Mortgage Amt.
1. Basic Tax
Handling 20. 00 2. Additional Tax
TP-584 a i Sub Total _
Notation SpecJAssit.
tG
EA-52 17 (County) Sub Total or
l Spec. /Add.
EA-5217 (State) TOT. MTG. TAX
Dual Town Dual County_
Comm, of Ed Held for Appointmen`t
. 5. 00~ Transfer Tax Affidavit rpy~ Mansion Tax
crtified Copa 1 The property covered by this mortgage is
or will be improved by a one or two
NYS Surcharge 15. 00 Sub Total family dwelling only.
Other YES or NO
Grand Total (J If NO, see appropriate tax clause on
page # of this instrument.
4 Dist' jpnSe 13025834 LW 5 Community Preservation Fund
Tax Service R pOL A Consideration Amount $
Real Property p T S IIIIII lull III IIIIIIIIIIIIIII IIII lullul
lu' lu'
Agency 20SEP-1 CPF Tax Due $
Verification
Improved
6 Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO: Vacant Land
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7 aaaal oc SOU-77&,cd ~n~NEx- ~Ava r//lnor~/ TD
T• 0 , go)( Il 79 TD
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Mail to: Judith A. Pascale, Suffolk County Clerk 7 Title Company Information
310 Center Drive, Riverhead, NY 11501 Co 37~i~-k7- ~ /nvS. a
www.suffolkcountyny.gov/clerk . ame
. Title # a _ f N
8 Suffolk Count Recordin & Endorsement Pa e
This page forms part of the attached P / 6AZ?VC
Aff
made by:
m (SPECIFY TYPE OF INSTRUMENT)
The premises herein is situated in.
SUFFOLK COUNTY, NEW-YORK-
TO In the TOWN of rf/n.t-A uUU
6.UA OF G In the VILLAGE
or HAMLET of f~
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING
12-0104-coiaakk
(over)
T
RPPOL A
Stat ID: 2575626 20-SEP-13
Tax Maps
District Secton Block Lot School District
1000 11200 0200 002000 MATTITUCK-CUTCHOGUE
1000 11200 0200 001002
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STEWART TITLE INSURANCE COMPANY
767 WestChesterAvenue, Suite 411
White Plains, NY IV,"
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on
the day of September, 2013 at Southold, New York. The parties
are Macari Farms, LLC, with an address of 150 Bergen Avenue,
Mattituck, New York 11952 (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") and the United States of America ("United States")
by and through the United States Department of Agriculture ("USDA")
Natural Resources Conservation Service ("NRCS") acting on behalf of
the Commodity Credit Corporation, as its interest appears herein, for
the purpose of forever conserving the agricultural productivity of the
Protected Property and its value for resource preservation and as open
space.
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 #1000-112-2-1 and 1000-112-2-2, more
fully described in SCHEDULE "A" attached hereto and made a part
hereof and hereinafter referred to as the "Protected Property" and
shown on the survey prepared by John C. Ehlers Land Surveyor dated
March 4, 2013 and last revised April 5, 2013 (a reduced copy of which
is attached hereto and made a part hereof and hereinafter referred to
as the "Survey"); and
WHEREAS, the Protected Property is located in the A-C Zoning
District of the Town of Southold; and
WHEREAS, the Protected Property contains soils classified as
Class I and Class II worthy of conservation as identified by the United
States Department of Agriculture, Natural Resources Conservation
Service's (formerly the Soil Conservation Service) Soil Survey of
Suffolk County, New York; and
WHEREAS, The Federal Farm and Ranch Lands Protection
Program's purpose is to assist in the purchase of conservation
easements on land with prime, unique, or other productive soil for the
purpose of protecting topsoil from conversion to nonagricultural uses
(16 U.S.C. 3838h and 38381). Under the authority of the Farm and
Ranch Lands Protection Program, the United States Department of F
Agriculture Natural Resources Conservation Service (hereinafter the
"United States" or "NRCS") acting on behalf of the Commodity Credit
Corporation, has provided Seven Hundred Fifty Seven Thousand Three
Hundred Seventeen and 00/100 DOLLARS ($757,317.00) to the
Grantee for the acquisition of this Easement, entitling the United
States to the rights identified herein.
WHEREAS, the Protected Property is part of the New York State
Agricultural District #1, and the Grantor wishes to continue using the
Protected Property for agricultural production as defined in this
Easement; and
WHEREAS, the Protected Property is currently used as a goat
farm, for a greenhouse, for composting in connection with farm
operations, and a portion is wooded/fallow; 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
agricultural economy; and
WHEREAS, the Protected 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
development; and
.
WHEREAS, Grantor and Grantee recognize the value and special
character of the region in which the Protected 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 Protected 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 Protected Property while
permitting compatible uses thereof;
2
NOW THEREFORE, in consideration of ONE MILLION FIVE
HUNDRED FOURTEEN THOUSAND SIX HUNDRED THIRTY-FOUR AND
00/100 DOLLARS ($1,514,634.00) and other good and valuable
consideration paid to the Grantor, the receipt of which is hereby
acknowledged, the Grantor does hereby grant, transfer, bargain, sell
and convey to the Grantee a Development Rights Easement, in gross,
which shall be binding upon and shall restrict the premises shown and
designated as the Protected 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 Protected Property unto the Grantee, its
successors and assigns forever, reserving, however, for the direct use
and benefit of the Grantor, its legal representatives, successors and
assigns, the fee title to the Protected Property, and the exclusive right
of occupancy and of use of the Protected Property, subject to the
limitations, conditions, covenants, agreements, provisions and use
restrictions hereinafter set forth, which shall constitute and shall be
servitudes upon and with respect to the Protected 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 Protected Property described in Schedule "A", free of
any mortgages or liens, as set forth in Stewart Title Insurance
Company Title Report No. ST12-15140 and possesses the right to
grant this easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a
municipal corporation organized and existing under the laws of the
State of New York State and is authorized under §64 of Town Law and
§247 of the New York State General Municipal Law ("General Municipal
Law") to acquire fee title or lesser interests in land, including '
development rights, easements, covenants, and other contractual
3
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,
conservation and agricultural values of the Protected Property and
have the common purpose of preserving these values by limiting
nonagricultural uses of the Protected Property. This instrument is
intended to convey a Development Rights Easement on the Protected
Property by Grantor to Grantee, exclusively for the purpose of
preserving its character in perpetuity for its environmental, scenic,
agricultural, conservation and natural values by preventing the use or
development of the Protected 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 Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Protected Property are compatible
with the purposes of this Easement. In order to aid in identifying and
documenting the present condition of the Protected Property's natural,
scenic, conservation, agricultural, and aesthetic resources and
otherwise to aid in identifying and documenting the Protected F
Property's agricultural values as of the date hereof, to assist Grantor
and Grantee with monitoring the uses and activities on the Protected
Property and ensuring compliance with the terms hereof, Grantee has
prepared, with Grantor's cooperation, an inventory of the Protected
Property's relevant features and conditions (the "Baseline
Documentation"). This Baseline Documentation includes, but need not
be limited to, a survey dated March 4, 2013, last revised April S, 2013,
prepared by John C. Ehlers Land Surveyor and a Phase 1
4
Environmental Site Assessment prepared by Nelson, Pope and Voorhis,
LLC dated December 26, 2012.
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 Protected Property or its physical condition as of
the date hereof, the parties shall not be foreclosed from utilizing any '
other relevant or material documents, surveys, reports, photographs
or other evidence to assist in the resolution of the controversy.
0.06 Recitation
In consideration of the previously recited facts, mutual
promises, undertakings, and forbearances contained in this
Development Rights Easement, the parties agree upon its provisions,
intending to be bound by it.
ARTICLE ONE
THE EASEMENT
1.01 Type
This instrument conveys a Development Rights Easement (herein
called the "Easement"). This Easement shall consist of the limitations,
agreements, 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 Protected Property for
uses or purposes consistent with the terms of this Easement, including
agricultural production as that term is presently referenced in §247 of
the General Municipal Law and/or defined in Chapter 70 of the Town
Code of the Town of Southold (the "Town Code" or "Code") now, or as
Chapter 70 may be amended and including the production of crops,
livestock and livestock products as presently defined in §301(2)(a)-(j)
of the New York State Agriculture and Markets Law (`"Agriculture and
Markets taw"), now, or as §301(2)(a)-(j) may be amended, provided
said amended provisions are inherently similar in nature to those
5
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.
"Protected Property" shall mean the property subject to this
Easement, consisting of part of SCTM# 1000-112-2-1 and 1000-112-
2-2, more fully described in the Schedule "A" attached hereto and ,
made a part hereof and shown on the survey prepared by John C.
Ehlers Land Surveyor dated March 4, 2013 and last revised April 5,
2013 (a reduced copy of which is attached hereto and made a part
hereof).
"Riding Academy" shall mean a business use of a lot for any of
the following purposes: the letting of horses for hire to individuals or
groups whether supervised or unsupervised, horseback riding
instruction or the holding of horse shows or other equine events.
"Structure" shall mean anything constructed or erected on or
under the ground or upon another structure or building, including
walkways. Structures shall not include trellis, posts and wiring, farm
roads, farm irrigation systems, nursery mats, or fencing necessary for
agricultural operations or to mark the boundaries of the Protected
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
Protected Property in perpetuity.
1.04 Effect
This Easement shall run with the Protected Property as an
incorporeal interest in the Protected 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
6
administer, manage and enforce the Easement as provided herein.
The word "Grantor" when used herein shall include all of those persons
or entities. Any rights, obligations, and interests herein granted to
Grantor and/or Grantee shall also be deemed granted to each and
every one of its subsequent agents, successors, and assigns, and the
word "Grantor and/or Grantee" when used herein shall include all of
those persons or entities.
ARTICLE TWO
SALE
GRANTOR, for ONE MILLION FIVE HUNDRED FOURTEEN
THOUSAND SIX HUNDRED THIRTY-FOUR AND 00/100 DOLLARS
($1,514,634.00) 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:
3.01 Structures
No structures may be erected or constructed on the Protected `
Property except as permitted by the Southold Town Land Preservation
Committee ("Land Preservation Committee") and other applicable
provisions of the Town Code and Section 1.02 and Section 4.06 of this
Easement.
3.02 Excavation and Removal of Materials; Mining
Mineral exploitation, and extraction of any mineral (including,
but not limited to soil, gravel, sand and hydrocarbons) by any method,
surface or subsurface, is prohibited. Grantor shall not remove or fill
topsoil, sand, or any other materials, nor shall the topography of the
Protected Property be changed except in connection with the
construction and maintenance of any structure or improvement
expressly permitted to be placed or constructed on the Protected
Property, under the terms herein.
Grantor may remove topsoil, sand or other materials for
purposes or erosion control and soil management only with the prior
written approval of Grantee. The Land Preservation Committee has the
right to require a Natural Resources Conservation Service (NRCS) farm
management plan for the Protected Property prior to the removal of
topsoil, sand or other materials, based on the extent and type of
materials removed or on the alteration of the topography of the
Property.
i
Agricultural practices that are determined to be in accordance
with an NRSC farm management plan shall not be prohibited.
3.03 Subdivision
The subdivision of the Protected Property is prohibited. Although
the legal description of the Protected Property describes more than
one parcel of land that can be conveyed separately, Grantor hereby
covenants and agrees the Protected Property shall be held, in fee, as
an undivided tract of land in perpetuity, and any and all subsequent
conveyances of the Protected Property, regardless of the number of
underlying individual parcels encumbered by this Conservation
Easement, shall be conveyed as a single tract of land. This limitation
on subdivision shall be binding upon Grantor, Grantor's successors,
heirs and assigns. The legal or de facto division, subdivision, platting,
partitioning or planned unit development of the Protected Property is
prohibited. This restriction does not prohibit boundary line adjustments
with adjoining agricultural land, provided that such boundary line
adjustments do not result in any loss of acreage to the Protected
Property, and that no new parcel may be created by such boundary
line adjustments.
The provisions of this section 3.03 are subject to a further
Declaration of Covenants and Restrictions, recorded simultaneously
with this Easement.
3.04 Dumping
The dumping or accumulation of unsightly or offensive materials
including, but not limited to trash, garbage, sawdust, ashes or
8
chemical waste on the Protected Property shall be prohibited. This
prohibition shall exclude materials used in the normal course of sound
agricultural practices on the Protected 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 Protected Property
and only for any of the following purposes: (a) to state the name of
the Protected Property and the names and addresses of the occupants
and the character of the business conducted thereon, (b) to
temporarily advertise the Protected Property or any portion thereof for
sale or rent, (c) to post the Protected 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 granting of easements for utilities and installation of new
utilities (power lines, gas lines, sewer lines, water lines,
telecommunications towers, and wind farms) is prohibited as an
encumbrance on the protected property rights of the United States.
Notwithstanding that prohibition, grantor may grant easements for the
installation of utilities necessary for permitted uses of the protected
property, including without limitation the wind turbine and associated
utility lines described below, provided that such installation is
consistent with the purposes of this conservation easement and is
done in such a manner as to minimize to the greatest extent possible
impact on soils. Existing utilities may be replaced or repaired at their
current location. `
The creation or placement of overhead utility transmission lines,
utility poles, wires, pipes, wells or drainage systems ("utilities") on the
Protected Property to service structures approved pursuant to Section
4.06 shall be prohibited without the prior written consent of the
Grantee. Underground utilities must, to the extent possible, be
constructed within 30 feet of the centerline of any roads or driveways,
and may be used solely to service the permitted structures on the
Protected Property. The Protected Property may not be used for the ,
9
creation or placement of utilities to service any other properties,
except as provided below.
Grantor shall also have the right to erect a wind turbine on the
Protected Property, subject to all applicable Town and other
governmental laws and regulations, including approval by the Land
Preservation Committee. Energy generated from such wind turbine, if
approved, may be used to service the Protected Property, the Reserve
Area, and adjacent properties to the south and east, including SCTM
#1000-120-5-1, 1000-121-1-1.3, and 1000-121-1-1.6, and provided
the use is related to agricultural production, including without
limitation, greenhouse, agricultural storage and maintenance
buildings, wine storage and winery.
3.07 Impervious Surfaces
impervious surfaces are defined to include permitted residential
buildings, agricultural buildings (with or without flooring), and paved
areas on the Protected Property (but not including public or country
roads or other roads paved by easement holders who have rights that
may be superior to the rights conveyed to Grantee by this Grant of
Development Rights Easement) may not exceed eight percent (8%) of
the total Protected Property acreage.
3.08 Prohibited Uses
Except for uses specifically permitted by this Easement, the use
of the Protected 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 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, 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
10
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 Protected 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 Protected Property.
3.09 Soil and Water
Any use or activity that causes or is likely to cause soil
degradation or erosion or pollution of any surface or subsurface waters
shall be prohibited. This prohibition shall not be construed as
extending to agricultural operations and practices (including, without
limitation, the use of agrochemicals such as fertilizers, pesticides,
herbicides, and fungicides) that are in accordance with sound
agricultural management practices of the MRCS.
3.10 Conservation Plan
All agricultural operations on the Protected Property shall be
conducted in a manner consistent with a resource management
system (RMS) Conservation Plan (the "Conservation Plan") prepared
by the NRCS utilizing the standards and specifications of the NRCS
Field Office Technical Guide, 7 CFR Part 12 and approved by the
Suffolk County Soil and Water Conservation District. All lands enrolled
in the Farm and Ranch Lands Protection Program will be subject to the
Conservation Plan. The resource management system for cropland,
prescribed in the Conservation Plan for all cropland enrolled in FRPP,
will assure that selected conservation practice alternatives will prevent
sheet and rill erosion from exceeding the current published soil loss
tolerance level.
Grantor shall give Grantee copies of the Conservation Plan upon
request and advise Grantee of amendments thereto so as to enable '
Grantee to keep its records current.
3.11 Conservation Compliance Provisions of the Conservation Plan
As required by Section 12381 of the Food Security Act of 1985,
as amended, the Grantor, its heirs, successors, or assigns, shall
conduct all agricultural operations on the Protected Property in a
11
{
manner consistent with a conservation plan (the "Conservation Plan")
prepared in consultation with NRCS and approved by the Suffolk
County Soil and Water Conservation District. This Conservation Plan
shall be developed using the standards and specifications of the NRCS
Field Office Technical Guide (FOTG) and 7 CFR Part 12 that are in
effect on the date of this Easement. However, the Grantor may
develop and implement a conservation plan that proposes a higher
level of conservation and is consistent with the NRCS Field Office
Technical Guide standards and specifications. NRCS shall have the
right to enter upon the Protected Property, with advance notice to the
Grantor, in order to monitor compliance with the Conservation Plan.
In the event of noncompliance with the Conservation Plan, NRCS
shall work with the Grantor to explore methods of compliance and give
the Grantor a reasonable amount of time, not to exceed twelve
months, to take corrective action. If the Grantor does not comply with
the Conservation Plan, NRCS will inform Grantee of the Grantor's
noncompliance. The Grantee shall take all reasonable steps (including
efforts at securing voluntary compliance and, if necessary, appropriate
legal action) to secure compliance with the Conservation Plan following
written notification from NRCS that (a) there is a substantial, ongoing
event or circumstance of non-compliance with the Conservation Plan,
(b) NRCS has worked with the Grantor to correct such noncompliance,
and (c) Grantor has exhausted its appeal rights under applicable NRCS
regulations.
Grantor shall be liable for any costs incurred by NRCS as a result
of the Grantor's negligence or failure to comply with the conservation
easement requirements as it relates to conservation plan violations.
If the NRCS standards and specifications for highly erodible land
are revised after the date of this Easement based on an Act of
Congress, NRCS will work cooperatively with the Grantor to develop
and implement a revised conservation plan. The provisions of this
section apply to the highly erodible land conservation requirements of
the Farm and Ranch Lands Protection Program and are not intended to
affect any other natural resources conservation requirements to which
the Grantor may be or become subject.
3.12 Drainage
The use of the Protected Property for a leaching or sewage
disposal field shall be prohibited. The use of the Protected Property for
12
a drainage basin or sump shall be prohibited, except in accordance
with sound agricultural management practices and the Conservation
Plan and in order to control flooding or soil erosion on the Protected
Property.
3.13 Development_ Rights
The use of the acreage of this Protected Property for purposes of
calculating lot yield on any other Protected 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 Protected Property) on the Protected
Property, except for the right to use the Protected Property for
agricultural production as set forth in Article Four below and the right
to construct, maintain and replace any pre-existing structures, and to
construct new structures, as such rights may be provided in Section
4.06, and the parties agree that any other such development rights
shall be terminated and extinguished and may not be used or
transferred to any other parcels.
3.24 Roads
Existing roads, as identified in the Baseline Documentation
Report may be maintained and repaired in their current state. New
roads may be constructed only if they are necessary for agricultural
operations on the Protected Property. Paved roads are subject to the
impervious limitation in section 3.07.
3.15 f=ences
Existing fences may be repaired and replaced and few fences
built on the Protected Property as necessary for agricultural operations
on the Protected Property, including customary management of
livestock and to delineate the boundary of the Protected Property,
subject to applicable provisions of the Town Code.
3.16 Motorized Vehicle Use
Grantor may not use motor vehicles on the Protected Property or
grant permission for such use except as necessary in the
accomplishment of the agricultural, forestry, habitat management, law
enforcement and public safety, or other permitted uses of the
Protected Property, provided that no use of motorized vehicles may
13
create impacts that are detrimental to the 'productivity of the soils on
the Protected Property and the purposes of this Conservation
Easement; however, notwithstanding the foregoing, use of
snowmobiles on snow is allowed on the Protected Property.
3.17 Industrial or Commercial Uses
The establishment of any commercial or industrial facilities is
prohibited (other than those necessary in the operation or uses of the
Protected Property expressly permitted by this Conservation Easement
Deed) including but not limited to, commercial feed lot, any retail sales
or service business, restaurant, night club, campground, trailer park,
motel, hotel, commercial recreation facility, gas station, retail outlet,
or facility for the manufacture or distribution of any product, other
than products to be grown or produced on the Protected Property in
connection with the purposes expressly permitted in this Conservation
Easement Deed.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain
all other rights of ownership in the Protected 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 Protected Property.
4.03 Use
Grantor shall have the right to use the Protected Property in any
manner and for any purpose consistent with and not prohibited by this
Easement, as well as applicable local, State, or federal law. Grantor
shall have the right to use the Protected 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.
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Grantor shall also have the right to use the Protected Property for
composting, with use of the compost product limited to farm operations
owned and operated by Joseph T. Macari, Sr., Joseph T. Macari, Jr.,
either of their spouses or children, or entities of which any such
persons hold a majority interest, or is a current or contingent
beneficiary, or a Grantor Trust created by any of them for benefit of
any such persons, or other successors who have the same relationship
and use all such properties as a related agricultural operation. Grantor
shall also have the right to use the Protected 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 sale or for other 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 Protected 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 clear wooded
areas for agricultural production in accordance with the Town Code, to
thin and prune trees to maintain or improve the appearance of the
Protected Property, and to mow the Protected 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 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 §301(2)(a)-(j) may be
amended, provided said amended provisions are inherently similar in
nature to those crops, livestock and livestock products included as of
the date of this Easement. No future restrictions in said laws and/or
Code or limitation in the definitions set forth in said laws and/or Code
shall preclude a use that is permitted under the current law and/or
Code.
15
Grantor may offer "U-Pick" operations and/or the use of a corn
or other crop maze to the general public, provided such activities are
conducted in conjunction with seasonal harvests, do not interfere with
agricultural production and are otherwise consistent with and do not
derogate from or defeat the Purpose of this Easement or other
applicable laws.
Notwithstanding the definition of agricultural production in
Chapter 70 of the Town Code or any successor chapter, structures
shall be prohibited, except as set forth in §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 conservation
instrument, including but not limited to farmstands.
4.06 Structures
A. Allowable Improvements. Grantor shall have the fight to
erect and maintain the following structures and improvements on the
Protected Property, as may be permitted by the Town Code, now or as
may be amended, and subject to the approval of the Town of Southold
Land Preservation Committee, provided the structures 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 Protected
Property and agricultural operations on adjacent
properties;
(ii) Construction of new structures, including a wind
turbine, provided such structures are necessary
for or accessory to agricultural production; Lot
coverage with impervious surfaces shall be limited
to 8% of the area of the Protected Property;
(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;
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(iv) Any improvement excluded from the definition of
"structure" in Section 1.02.
B. Conditions. Any allowable improvements shall protect
prime agricultural soils, agricultural production, open space and scenic
vistas, and otherwise be consistent with the Purpose of this Easement.
C. Environmental Sensitivity During Construction. The use and
location of any improvement permitted hereunder shall be consistent
with the purposes intended herein, and construction of any such
improvement shall minimize disturbances to the environment. Grantor
shall employ erosion and sediment control measures to mitigate any
storm water runoff, including but not limited to minimal removal of
vegetation, minimal movement of earth and minimal clearance of
access routes for construction vehicles.
D. Replacement of Improvements. In the event of damage
resulting from casualty loss to an extent which renders repair of any
existing improvements or improvements built or permitted pursuant to
this Section 4.06 impractical, erection of a structure of comparable
size, use, and general design to the damaged structure shall be
permitted in kind and within the same general location, subject to the
review and written approval of Grantee, pursuant to applicable
provisions of the Town Code.
4.07 Notice
Grantor shall notify Grantee, in writing, before the construction
of any permanent or temporary structures as permitted in Section
4.06 herein and shall file all necessary applications and obtain all
necessary approvals that may be required by this Easement or by the
Town Code, and shall provide documentation as may be required for
such applications.
4.08 Alienability
Grantor shall have the right to convey, mortgage or lease all of
its remaining interest in the Protected Property but only subject to this
Easement. Grantor shall promptly notify Grantee and the United
States Secretary of Agriculture of any conveyance of any interest in
the Protected Property, including the full name and mailing address of
any transferee, and, in the case of a transfer to an entity, the
individual principals thereof. The instrument of any such conveyance
17
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
Protected Property. Any such further restrictions shall be consistent
with and in furtherance of the general intent and purpose of this
Easement as set forth in Section 0.03.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments
and other governmental or municipal charges, which may become a
lien on the Protected 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 General Indemnification
Grantee and the United States have no obligations whatsoever,
express or implied, relating to the use, maintenance or operation of
the Protected Property. Grantee's or the United States' exercise of, or
failure to exercise, any right conferred by this Easement shall not be
deemed to be management or control of the activities on the Protected
Property. Grantee shall not be liable to Grantor for injuries or death to
persons or damage to property or any other harm in connection with
Grantee's administration and/or enforcement of this Easement, unless
such harm is due to the negligence of Grantee or its agents, in which
case liability shall be apportioned accordingly.
18
Grantor shall indemnify and hold harmless Grantee and the
United States, their employees, agents and assigns from any and all
liabilities, claims, demands, losses, expenses, damages, fines, fees,
penalties, suits, proceedings, actions and costs of actions, sanctions
asserted by or on behalf of any person or governmental authority, and
other liabilities (whether legal or equitable in nature and including,
without limitation, court costs, and reasonable attorneys' fees and
attorneys' fees on appeal) to which Grantee or the United States may
be subject or incur relating to the Protected Property, which may arise
from, but are not limited to, Grantor's negligent acts or omissions or
Grantor's breach of any representation, warranty, covenant, or
agreements contained in this instrument, or violations of any Federal,
State or local laws, including all Environmental Laws, as defined below.
5.02A Environmental Warranty
"Environmental Law" or "Environmental Laws" means any and all
Federal, State, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, guidelines, policies or requirements of any
governmental authority regulating or imposing standards of liability or
standards of conduct (including common law) concerning air, water,
solid waste, hazardous materials, worker and community right-to-
know, hazard communication, noise, radioactive material, resource
protection, subdivision, inland wetlands and watercourses, health
protection and similar environmental health, safety, building and land
use as may now or at any time hereafter be in effect.
"Hazardous Materials" means any petroleum, petroleum
products, fuel oil, waste oils, explosives, reactive materials, ignitable
materials, corrosive materials, hazardous chemicals, hazardous
wastes, hazardous substances, extremely hazardous substances, toxic
substances, toxic chemicals, radioactive materials, infectious materials
and any other element, compound, mixture, solution or substance
which may pose a present or potential hazard to human health or the
environment.
Grantor warrants that it is in compliance with, and shall remain
in compliance with, all applicable Environmental Laws. Grantor
warrants that there are no notices by any governmental authority of
any violation or alleged violation of, non-compliance or alleged non-
compliance with or any liability under any Environmental Law relating
to the operations or conditions of the Protected Property. Grantor
19
further warrants that it has no actual knowledge of a release or
threatened release of Hazardous Materials on, at, beneath or from the
Protected Property, as such substances and wastes are defined by
applicable Federal and State law.
Moreover, Grantor hereby promises to hold harmless and
indemnify the Grantee and the United States against all litigation,
claims, demands, penalties and damages, including reasonable
attorneys' fees, arising from or connected with the release or
threatened release of any Hazardous Materials on, at, beneath or from
the Protected Property, or arising from or connected with a violation of
any Environmental Laws by Grantor or any other prior owner of the
Protected Property. Grantor's indemnification obligation shall not be
affected by any authorizations provided by Grantee or the United
States to Grantor with respect to the Protected Property or any
restoration activities carried out by Grantee at the Protected Property;
provided, however, that Grantee shall be responsible for any
Hazardous Materials contributed after this date to the Protected
Property by Grantee.
5.03 Grounds Maintenance Requirement
If Grantor leaves the Protected 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 Protected Property to the
condition in which it existed on the date of this Easement, as
evidenced by the documentation referred to in Section 0.05, in order
to protect the environmental, natural, scenic, conservation and
agricultural values of the Protected Property. This shall not include
restoration of trees on formerly wooded areas which were cleared for
agricultural production. In the event Grantor fails to comply with the
provisions of this section after reasonable written notice is given to
Grantor by Grantee, then, in addition to all other remedies set forth
herein, Grantee or its agents are hereby authorized to enter upon the
Property to implement the Plan, and to recover the costs of such
implementation from Grantor, as provided in Section 5.02 and Section
6.03.
20
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee shall have the right to enter upon the Protected
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 Protected Property, for the purpose of inspection to determine
whether this Easement and its purposes and provisions are being
upheld, and not more frequently than annually without Grantor's
consent. Representatives of the United States Department of
Agriculture shall also have the right to enter the Protected Property for
monitoring conservation plan implementation, upon prior notice to
Grantor and not more frequently than annually without Grantor's
consent. Grantee shall not have the right to enter upon the Protected
Property for any other purposes, except as provided in Section 5.03
and 6.03, or to permit access upon the Protected Property by the
public.
6.02 Restoration
In addition to Grantee's remedies under Section 5.03, Grantee
shall have the right to require the Grantor to restore the Protected
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
Protected Property resulting from causes beyond the Grantor's control,
including, without limitation, fire, flood, storm, earth movement, wind,
weather, disease, animal or pest action, or from any prudent action
taken by the Grantor under emergency conditions to prevent, abate,
or mitigate significant injury to persons or to the Protected Property or
crops, livestock or livestock products resulting from such causes.
6.03 Enforcement Rights of Grantee
Grantor acknowledges and agrees that Grantee's remedies at
law for any violation of this Easement may be inadequate. Therefore,
in addition to, and not as a limitation of, any other rights of Grantee
hereunder at law or in equity, in the event any breach, default or
violation of any term, provision, covenant or obligation on Grantor's
21
part to be observed or performed pursuant to this Easement is not
cured by Grantor within thirty (30) days' written 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 Protected 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 Protected 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.
The cure period in the Section 6.03 may be extended for a
reasonable time by Grantee if such restoration cannot reasonably be
accomplished within thirty (30) days.
Grantor shall pay either directly or by reimbursement to Grantee
and/or to the United States of America, all reasonable attorneys' fees,
court costs and other expenses incurred by Grantee or the United
States of America (herein called "Legal Expenses") in connection with
any proceedings under this Section, as approved by the Court.
22
Under this Grant of Development Rights Easement, the United
States is granted the right of enforcement in order to protect the
public interest. The Secretary of the United States Department of
Agriculture (the Secretary) or his or her assigns, on behalf of the
United States, may exercise this right of enforcement under any
authority available under State or Federal Law if the Town of Southold,
or its successors or assigns, fails to enforce any of the terms of this
instrument, as determined in the sole discretion of the Secretary.
6.04 Notice
All notices required by this Easement must be written. Notices
shall be delivered by hand or by registered or certified mail, return
receipt requested, with sufficient prepaid postage affixed and with
return receipts requested. Mailed notice to Grantor shall be addressed
to Grantor's address as recited herein, or to such other address as
Grantor may designate by notice in accordance with this Section 6.04.
Mailed notice to Grantee shall be addressed to its principal office,
recited herein, marked to the attention of the Supervisor and the Town
Attorney, or to such other address as Grantee may designate by notice
in accordance with this Section 6.04.
Where notice is required to the United States of America or to
the MRCS, such notice shall be delivered to U.S. Department of
Agriculture, NRCS, c/o Commodity Credit Corporation, State
Conservationist, The Galleries of Syracuse, 441 South Salina Street,
Suite 354, Syracuse, New York 13202-2450. Notice to the NRCS shall
be deemed notice to the United States of America.
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
SIX shall not have the effect of waiving or limiting any other remedy or_
relief, and the failure to exercise or the delay in exercising any remedy'
shall not constitute a waiver of any other remedy or relief or the use of
such other remedy or relief at any other time.
23
6.06 Extinguishment of Easement/Condemnation
The interest of the United States in this Easement is a vested
property right that cannot be condemned by State or local
governments and may not be extinguished, terminated or condemned
without the express written consent of the United States. No
proceeding to extinguish, terminate or condemn this Easement in
whole or in part shall be commenced without advance notice to NRCS
and the express written consent of the United States.
At the mutual request of Grantor and Grantee and the United
States of America, a court with jurisdiction may, if it determines that
conditions surrounding the Protected 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
Protected Property shall not be construed to be grounds for
extinguishment of this Easement.
If at any time the Protected Property or any portion thereof shall
be taken or condemned by eminent domain, then this Easement shall
terminate with respect to the Protected Property, or portions thereof
so taken or condemned, and the Protected Property shall not be
subject to the limitations and restrictions of this Easement. In such
event, NRCS will collect Commodity Credit Corporation's share of the
conservation easement based on the appraised fair market value of
the conservation easement at the time the easement is extinguished,
terminated or condemned. The Commodity Credit Corporation's share
will be in proportion to its percentage of original investment. In the
event of a condemnation action, approved and consented to by the
United States, the Grantor, its successors or assigns, shall not be
required to pay any penalties.
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.
24
7.02 Amendment
This Easement is made with the intention that it shall qualify as
a conservation easement in perpetuity under Code Section
170(h). The parties agree that amendments to the provisions of this
Easement may be permitted by Grantee if such amendment shall be
necessary to entitle Grantor to meet the requirements of Code Section
170(h) and/or to enable Grantee to amplify the public benefits
attributable to this Easement.
This Easement can be amended and modified only in accordance
with the common and statutory laws of the State of New York
applicable to the modification of easements and covenants running
with the land. Grantee and Grantor shall mutually have the right to
agree to amendments to this Easement, with the written approval of
the Secretary of the United States Department of Agriculture, provided
however, that Grantee shall have no right or power to agree to any
amendment hereto that would result In this Easement failing to qualify
as a valid conservation easement under Article 49, Title 3 of the
Environmental Conservation Law of the State of New York, as the
same may be hereafter amended, or any regulation issued pursuant
thereto.
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. The United States of America shall also consent to any
such alienation.
In addition to the limitations set forth above, Grantee shall have
the right, subject to the provisions of Section 6.03 (Enforcement
Rights of Grantee) herein, to transfer all or part of this Easement to
any public agency, or private non-governmental organization, that at
25
the time of transfer is a "qualified organization" under §170(h) of the
Internal Revenue Code, provided that transferee expressly agrees to
assume the responsibility imposed on the Grantee by this Easement.
Any easement transfer must be approved by the Grantor or any
subsequent owner, and the United States Department of Agriculture,
NRCS. 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. The United States Department of Agriculture, NRCS, will be
notified in writing in advance of such transfer. The NRCS State Office
must approve the choice of any new non-governmental organization in
advance of any transfer of this Easement.
7.04 Severability
Any provision of this Easement restricting Grantor's activities,
which is determined to be invalid or unenforceable by a court, shall not
be invalidated. Instead, that provision shall be reduced or limited to
whatever extent that court determines will make it enforceable and
effective. Any other provision of this Easement that is determined to
be invalid or unenforceable by a court shall be severed from the other
provisions, which shall remain enforceable and effective.
7.05 Governing Law
New York law applicable to deeds to and easements on land
located within the State of New York shall govern this Easement in all
respects, including validity, construction, interpretation, breach,
violation and performance.
7.06 Interpretation
Regardless of any contrary rule of construction, no provision of
this Easement shall be construed in favor of one of the parties because
it was drafted by the other party's attorney. No alleged ambiguity in
this Easement shall be construed against the party whose attorney
drafted it. If any provision of this Easement is ambiguous or shall be
subject to two or more interpretations, one of which would render that
provision invalid, then that provision shall be given such interpretation
as would render it valid and consistent with the purposes of this
Easement. Any rule of strict construction designed to limit the breadth
of the restrictions on use of the Protected Property shall not apply in
26
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 its right to use the Protected 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
Protected Property, or to use images of the Protected Property.
Grantee may use images of the Protected 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 and the United States, which, for
purposes of calculating proceeds from a sale or other disposition of the
Protected Property as contemplated under Section 6.06
(Extinguishment of Easement), shall have a value equal to a
percentage of the value of the Protected Property unencumbered by
this Easement (the "Proportionate Share"). If this Conservation
Easement is extinguished, terminated, or condemned, in whole or in
part, then the Grantor must reimburse the Grantee an amount equal
27
to the greater of 1) the Proportionate Share of the fair market value of
the Protected Property unencumbered by this Conservation Easement
at the time of conveyance or 2) the value of the conservation
easement based on the appraised fair market value of the
conservation easement at the time the easement is extinguished or
terminated. However, MRCS will collect the Commodity Credit
Corporation's share of the conservation easement based on the
appraised fair market value of the conservation easement at the time
the easement is extinguished or terminated. The Commodity Credit
Corporation's share will be in proportion to its percentage of original
investment.
7.12 Merger
In the event that the Grantee(s) or the United States takes legal
title to Grantor's interest in the Protected Property, the Grantee must
commit the monitoring and enforcement of the Conservation Easement
to another qualified organization within the meaning of Section
107(h)(3) of the United States Internal Revenue Code (1986), as
amended, which organization has among its purposes the conservation
and preservation of land and water areas.
7.13 Subsequent Liens on Protected Property
No provision of this Conservation Easement should be construed
as prohibiting the ability of Grantor to use the Protected Property as
collateral for a subsequent borrowing. Any subsequent liens on the
Protected Property must be subordinate to this Conservation
Easement.
IN WITNESS WHEREOF, Grantor has executed and delivered and
Grantee has accepted and received this Grant of Development Rights
Easement on the day and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
MACARI FARMS, LLC, Grantor
BERGEN ROAD CORN R TRUST, Member
//I 111m
B SEPH T. MAC JR., Co-Trustee
28
BY: DIANE MACARI, Co-Trustee
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUT D, Grantee
BY: _0
SC A. RUSSELL, SUPERVISOR
Acceptance of Property Interest by the Natural Resources
Conservation Service
The Natural Resources Conservation Service, United States
Department of Agriculture, an agency of the United States
Government, hereby accepts and approves the foregoing Grant of
Development Rights Easement, and the rights conveyed therein, on
behalf of the United States of America.
Authorized Sig ory for the NRCS
Dennis A. DeWeese, Acting State Conservationist
STATE OF NEW YORK )
COUNTY OF 41VO&PI S6 SS:
On this (u day of September in the year 2013 before me, the
undersigned, personally appeared Dennis A. DeWeese, personally
known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity,
and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the
instrument.
KMEMY k STINSON
atary Pub c Notary Public
No. 01ST5089252
29 County of Madison, State of N.Y.
Commission Tres;
December 8, i
STATE OF NEW. YORK )
COUNTY OF SUFFOLK ) SS:
On the Lad day of September in the year 2013 before me, the
undersigned, personally appeared Joseph T. Macari, Jr., personally
known to me or proved to me on the basis of satisfactory evidence to be
the Individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that
by his signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.
Signature/office of individual taking acknowledgement
PATRICIA L. FALLON
STATE OF NEW YORK Notary Public, State Of New York
No. 01 FA4950146
COUNTY OF SUFFOLK ) SS: CoQmalified
ion Expires In Suffolk April 4,
On the fly! day of September in the year 2013 before me, the
undersigned, personally appeared Diane Macari, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to
me that she executed the same in her capacity, and that by her
signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
Signature/office of individual.taking acknowledgement
PATRICIA L. FALLON
STATE OF NEW YORK) Notary Public, State Of New York
No. o1FA495o146
COUNTY OF SUFFOLK) SS: Qualified in Suttolk County
Commission Expires April 24,
On this 104, day of September 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 whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and
that by his signature on the instrument, the individual, or the person
upon behalf of which the individual acted, executed the instrument.
Notary Public
PATRICIA L. FALLON
Notary Public, State Of New York
30 No. 01FA4950146
Qualified in Suffolk County
Commission Expires April 24,~~
Stewart V a ` NEW YORK METRO
800-853-4803
212-922-1593 fax
title insurance company slewartnewyork.com
SCHEDULE A - DESCRIPTION
Title No.: ST12-16140
AMENDED 9!9/2013
ALL that certain plot, piece or parcel of land, situate, lying and being at Mattituck, Town of Southold,
County of Suffolk, State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the southerly side of Bergen Avenue with the
easterly side of Bergen Avenue;
RUNNING THENCE along the southerly side of Bergen Avenue, North 66 degrees 32 minutes 00
seconds East 1,492.24 feet to lands now or formerly of Pindar Associates;
THENCE along said land and along land now or formerly of Bicycle Path LLC and Town of Southold,
South 20 degrees 57 minutes 15 seconds East 905.12 feet to Lot No. 1 as shown on Subdivision Plat of
Thorton Smith, Section One, filed 4/2411995;
THENCE along said land the following two (2) courses and distances:
South 75 degrees 24 minutes 50 seconds West 824.90 feet;
South 72 degrees 31 minutes 40 seconds West, 274.45 feet to the Reserve Area;
THENCE North 17 degrees 28 minutes 20 seconds West, 217.00 feet;
THENCE South 72 degrees 31 minutes 40 seconds West, 408.62 feet to the easterly side of Bergen
Avenue;
THENCE along the easterly side of Bergen Avenue, North 21 degrees 14 minutes 20 seconds West
490.07 feet to the corner aforesaid at the point or place of BEGINNING.
PARCEL 1-1000-112.00-02.00-001.000 - For information only - not to be insured
ALL that certain plot, piece or parcel of land, situate, lying and being at Mattituck, Town of Southold,
County of Suffolk, State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the southerly side of Bergen Avenue with the
easterly side of Bergen Avenue;
RUNNING THENCE along the southerly side of Bergen Avenue, North 66 degrees 32 minutes 00
seconds East 670.24 feet;
THENCE South 21 degrees 03 minutes 50 seconds East 777.54 feet to Lot No. 1 as shown on
Subdivision Plat of Thorton Smith, Section One, filed 4/24/1995;
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THENCE along said land, South 72 degrees 31 minutes 40 seconds West 668.78 feet to the easterly side
of Bergen Avenue;
THENCE along the easterly side of Bergen Avenue, North 21 degrees 14 minutes 20 seconds West
707.54 feet to the corner aforesaid at the point or place of BEGINNING, excepting Reserve Area
described below.
PARCEL II -1000-112.00-02.00-002.000 : For information only - not to be insured
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 point on the southerly side of Bergen Avenue distant 670.24 feet easterly from the
corner formed by the intersection of the southerly side of Bergen Avenue with the easterly side of Bergen
Avenue;
RUNNING THENCE North 66 degrees 32 minutes 00 seconds East along the southerly side of Bergen
Avenue 822.00 feet to lands now or formerly of Pindar Associates;
THENCE along said land and along land now or formerly of Bicycle Path LLC and Town of Southold,
South 20 degrees 57 minutes 15 seconds East 905.12 feet to Lot No. 1 as shown on Subdivision Plat of
Thorton Smith, Section One, filed 4/24/1995;
THENCE along said land South 75 degrees 24 minutes 50 seconds West 824.90 feet;
THENCE North 21 degrees 03 minutes 30 seconds West 777.54 feet to the southerly side of Bergen
Avenue, at the point or place of BEGINNING.
RESERVE AREA - For information only - not to be insured
Development rights not conveyed. Excluded from Protected Property.
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 point on the easterly side of Bergen Avenue distant 490.07 feet southerly from the
corner formed by the intersection of the southerly side of Bergen Avenue with the easterly side of Bergen
Avenue;
RUNNING THENCE North 72 degrees 31 minutes 40 seconds East 408.62 feet;
THENCE South 17 degrees 28 minutes 20 seconds East, 217.00 feet to Lot No. 1 as shown on
Subdivision Plat of Thorton Smith, Section One, filed 4/24/1995;
THENCE along said land South 72 degrees 31 minutes 40 seconds West, 394.33 feet to the easterly side
of Bergen Avenue;
THENCE along said street North 21 degrees 14 minutes 20 seconds West, 217.47 feet to the point or
place of BEGINNING.
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