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HomeMy WebLinkAboutL 12395 P 581 SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument: EASEMENT/DOP Recorded: 06/30/2005 Number of Pages: 21 At: 02:52:07 PM Receipt Number : 05-0068808 TRANSFER TAX NUMBER: 04-47292 LIBER: D00012395 PAGE: 581 District: Section: Block: Lot: 1000 084.00 04.00 006.004 EXAMINED AND CHARGED AS FOLLOWS Deed Amount: $0.00 Received the Following Fees For Above Instrument Exempt Exempt Page/Filing $63.00 NO Handling $5.00 NO COE $5.00 NO NYS SRCHG $15.00 NO TP-584 $5.00 NO Notation $0.00 NO Cert.Copies $13.65 NO RPT $30.00 NO SCTM $0.00 NO Transfer tax $0.00 NO Comm.Pres $0.00 NO Fees Paid $136.65 TRANSFER TAX NUMBER: 04-47292 THIS PAGE IS A PART OF THE INSTRUMENT THIS IS NOT A BILL Edward P.Romaine County Clerk, Suffolk County I 1 2 Number of pages RECORDED 2005 Sun 70 02:52:07 Ph TORRENS Ea;ard P.P.uuaire C FRK OF Scrial # S'JPFr"-K CDN T V L DOCO12395 Certificate # P 581 Prior CIE # CT# 04-47292 Deed / Mortgage Instrument Dccd / Mortgage Tax Stamp Recording / Piling Stamps 3 FEES Page / Filing Fee Mortgage Amt. 1. Basic Tax Handling 5. 00 2. Additional Tax TP-584 Sub Total Notation Spec./Assit. or EA-52 17 (County) Sub Total Spec. /Add. EA-5217 [Slate) TOT. MTG. TAX q~ R.P.T.S.A. Dual Town _ Dual County Held I'or Appointment Comm. of Ed. 5. 1X1 Transfer Tax _ Affidavit • Mansion Tax 1 The property covered by this mortgage is Certified CI or will be improved by a one or Iwo NYS Surcharge IS. 00 family dwelling only. Sub Total OW YES or NO Other _ Grand Total 13310 I15 If NO. sec appropriate tax clause on page # of this instrument. Di/S'9100 oSy.m OY,W PD ,OO/ 4 Disl. Section Block Lot 5 Community Preservation Fund Real Property 1000 08400 0400 006004 Consideration Amount $ &Z ?J Tax Semite Agency F TS~,\ CPF Tax Due S o Verification R MMA A J .IUN-0 Improved Vacant Land 6 SatisfactionxiDischarges/Releases List Property Owners Mailing Address RECORD & RETURN TO: TD TD Lisa Clare Kombrink. Esq. TO 235 Hampton Road Southampton. New York 11968 7 Title Company Information Co. Name .S-tcu / Title # Z e Suffolk Count Recording & Endorsement Page This page fortes part of the attached Deye Iopm ent Qi Qh1 FA-'99M tl ~ made by: T / (SPECIFY TYPE OF INSTRUMENT) 1] l~ b ? The premises herein is situated in SUFFOLK COUNTY. NEW YORK. TO Sox ;.f_ In the 7imnship of So J-01 (3 1 j ~OVJA of )-i1 f OI Q_ In the VILLAGE 11 or HAMLET of BOXES 6 THRU S MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING. (nver) 6/7/05 South 1000-84-4-6.1 DEED OF CONSERVATION EASEMENT d1.- THIS CONSERVATION EASEMENT ("Easement") is granted this day of June, 2005, by STEVEN DUBNER ("Grantor") having an address of 140 Half Hollow Road, Dix Hills, New York 11746 to THE TOWN OF SOUTHOLD ("Grantee"), a New York municipal corporation having an office at 53095 Main Road, P.O. Box 1179, Southold, New York. WHEREAS: A. Grantor is the owner of certain real property (the "Property") consisting of 46.222 acres, in one parcel located at 3670 Cox Lane, Southold, in the Town of Southold, Suffolk County, New York, SCTM# 1000- 84-4-6.1, more fully described in EXHIBIT A attached hereto and shown as Lot #1 on the Conservation Subdivision Map of Steven Dubner dated July 7, 7Ata prepared by John Ehlers; and I 2003, and last revised Aty 24 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 46.222 acres of prime soils, and 0 acres of soils of statewide importance 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;" 1 of 20 i I F. The Property is located within Suffolk County's Agricultural District #1, created pursuant to Article 25AA of the New York State Agriculture and Markets Law. In 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 for 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 agricultural land for production of food i and other agricultural products ...It is the purpose of this article to provide a locally-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 significant 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. 1. 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- TWO HUNDRED-NINETY-FOUR THOUSAND-TWO HUNDRED and SIXTEEN Dollars ($1,294,216.00) and the mutual covenants, terms, conditions and 2 of 20 restrictions contained herein, the parties agree as follows: 1. Grant of 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, 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 It is the primary purpose of this Easement to: a) enable the Property to remain in agricultural or forestry use for current and future production of i food and fiber, and livestock and livestock products, by protecting in perpetuity its agricultural and forestry values, use and utility, including its prime, statewide important and unique agricultural soils; and b) prevent any use of the Property that would significantly impair or interfere with its long- term agricultural and forestry viability. It is the secondary purpose of this Easement to conserve and protect the Property's open space resources, and their associated unique and special natural features to the extent that such protection does not conflict with the primary purpose of this Easement. 3. Implementation This Easement shall be implemented by limiting and restricting the development and use of the. Property in accordance with its provisions. No use of the property shall occur and no permanent or temporary structures or other buildings or improvements shall hereafter be constructed, placed or maintained on the Property, except as specifically provided herein. The Property remains subject to all applicable local, state and federal laws and regulations. 4. Definitions As used in this Easement, the terms "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; and the term 3 of 20 "Grantee" includes the original Grantee(s) and its[their] successors and assigns. The term "Sound Agricultural 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 or Grantor may request the New York State Department of Agriculture and Markets to initiate a sound agricultural practice review pursuant to Section 308 of the New York State Agriculture and Markets Law, or any successor statute. The term "Farm Labor Housing" means structures used to house seasonal and/or full-time employees where such residences are provided by the farm landowner and/or operator, the worker is an essential employee of the farm landowner and/or 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 mobile or manufactured home used as the primary residence of a farm owner is not farm labor housing. 5. Reserved Rights Retained by Grantor Notwithstanding any provisions of this Easement to the contrary, 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 and not specifically prohibited or limited by this Easement. Unless otherwise specified below, nothing in this Easement shall require Grantor to take any action to restore the condition of the Property after any Act of God. 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. 6. Access 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. 4 of 20 7. Right to Use Property for Rural and Agricultural Uses Grantor has the right to produce crops, livestock and livestock products and conduct farm operations as defined under Section 301 of the New York State Agriculture and Markets Law ("Agriculture and Markets Law"), or such successor law as is later promulgated, which includes but is not limited to the right to establish, reestablish, maintain, and use cultivated fields, orchards, pastures and woodlands. Said farming practices shall be carried out in accordance with Sound Agricultural Practices as defined herein. In addition, Grantor has the right to distribute farm products, subject to the limitations set forth in this Easement, including Section 10 ("Construction of Buildings and Other Improvements"). 8. Right to Use the Property for Recreational Purposes Grantor retains the right to use the Property for otherwise lawful recreational uses, including, but not limited to, hunting, fishing, cross- country skiing and snowmobiling, subject to the limitations set forth in this Easement, including Section 10 ("Construction of Buildings and Other Improvements"). I 9. Maintenance Should the property cease to be used for agricultural purposes for more than three (3) years, the agricultural fields containing prime, statewide important and unique soils will be mowed at least triennially or otherwise maintained in a condition which will prevent growth of woody vegetation that would interfere with future agricultural use or which might result in interference with drainage systems, or in reversion of significant portions of the Property to regulated wetland status. Similarly, during prolonged periods of disuse for agricultural purposes, artificial and natural drainage systems must be maintained in a functional state by the Grantor. If Grantor does not comply with this provision, Grantee shall have the right, but not the obligation, to mow such fields, at Grantee's sole expense, if it so chooses. 10. 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. 10(a) Fences Existing fences may be repaired, removed and replaced, 5 of 20 and new fences may be built on the Property for purposes of reasonable and customary management of livestock and wildlife and to prevent trespassing on the Property. 10(b) New Agricultural Structures and Improvements - Without permission of Grantee, Grantor may construct new buildings, structures and impervious improvements including asphalt and concrete roads and parking areas on up to 5% of the Property to be used primarily for purposes related to a "Farm Operation," as defined in New York State Agriculture and Markets Law § 301 or any successor statute and for such other agricultural purposes as (i) the production, storage or sale of farm products or by-products, (II) the storage of equipment used for agricultural production, (iii) the keeping of livestock or other animals and (iv) farm labor housing. Such new buildings, structures and impervious improvements shall not include those used for the processing and packaging of farm products. Such coverage limitations do not apply to permeable surfaces such as gravel roads and parking areas, structures that protect soil and water resources, such as manure storage areas, and structures and improvements lacking permanent foundations where the land underneath is not covered by impervious surfaces. Permission is required by Grantee for the construction of such buildings, structures and improvements that would cover more than 5% of such area. 10(c) New Farm Labor Housing Without permission of Grantee, Grantor has the right to construct new dwellings or structures for Farm Labor Housing as defined in Paragraph 4, together with new agricultural structures and improvements permitted in Section 10(c) above, on up to 5% of the property. With advance written permission of the Grantee, pursuant to Section 18 (Permission), Grantor has the right to construct such Farm Labor Housing within the remaining Property. The land on which these structures stand shall not be subdivided. 10(d) Any one or more new recreational improvements proposed for the Property that exceed an aggregate footprint of 400 square feet may be located only with the advance written permission of Grantee. Under no circumstances shall athletic fields, golf courses or ranges, commercial airstrips, commercial helicopter pads or any other similar recreational improvements that interfere with the Purpose of this Easement, significantly disturb the farm soils, or otherwise adversely affect agricultural and forestry uses on a continuing basis be allowed on the Property. 10(e) Utility Services and Septic Systems Wires, lines, pipes, cables 6 of 20 or other facilities providing electrical, gas, water, sewer, communications, or other utility services to 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. Services are limited to structures permitted on the Property pursuant to Section 18 ("Permission"). 10(f) Ancillary Improvements - Other improvements, including, but not limited to facilities for the generation and transmission of electrical power for agricultural production uses on the Property, such as windmills and detached solar arrays may be built only with the permission of Grantee, pursuant to Section 18 ("Permission"). 11. Maintenance and Improvement of Water Sources Grantor maintains the right to use, maintain, establish, construct, and improve water sources, water courses and water bodies within the Property for the uses permitted by this Easement, provided that Grantor does not significantly impair or disturb the natural course of the surface water drainage or runoff flowing over the Property. Grantor may alter the natural flow of water over the Property in order to improve drainage of agricultural soils, reduce soil erosion, provide irrigation for the Property or improve the agricultural or forest management potential of the Property, provided such alteration is consistent with Sound Agricultural Practices, the Purpose of this Easement and is carried out in accordance with applicable State and federal laws and regulations. 12. Water Rights Grantor retains and reserves the right to use any appurtenant water rights sufficient to maintain the agricultural productivity of the Property. Grantor shall not transfer, encumber, lease, sell or otherwise sever such water rights from title to the Property itself. 13. Subdivision The Property may not be further subdivided pursuant to Town Law Sections 265, 276 or 277 or Section 335 of the Real Property Law, as they may be amended, or any other applicable State or local law. "Subdivision" shall include the division of the portion of the Property from which the 7 of 20 development rights are acquired into two or more parcels, in whole or in part. Notwithstanding this provision, the underlying fee interest may be divided by conveyance of parts thereof to heirs or next of kin by will or operation of law, or with written consent of the Purchaser. 14. Forest Management Without prior written permission from Grantee, Grantor may clear forested areas for conversion to farmland, may harvest wood for on-farm use including heating or construction of buildings and improvements, and may remove trees that are fallen, dead, diseased or dangerous, so long as it is consistent with Sound Agricultural Practices. Without prior written permission from Grantee, Grantor may commercially harvest timber and other wood products 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, in accordance with generally-accepted forest best management practices (as outlined in a forest management and harvest plan) that shall not result in significant degradation of soil and water resources. Such commercial timber cutting shall be carried out only 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, or a Cooperating Consulting Forester with the New York State Department of Environmental Conservation. In order to facilitate the monitoring and stewardship of this Conservation Easement, to ensure continuing communication between parties, Grantor shall give Grantee, its successors or assigns, written notice thereof not less than forty-five (45) days prior to the anticipated commencement of any commercial timber harvest. Such written notice shall include submission of the current forest management plan and harvest plan. 15. Excavation and removal of Materials; Mining The excavating or filling of the Property, except as may be necessary to construct and maintain permitted structures and improvements on the Property, or in connection with necessary drainage and soil conservation programs, shall be prohibited, without the prior written consent of Grantee. Mineral exploitation, and extraction by any method, surface or subsurface, is prohibited. The removal of topsoil, sand, or other materials shall not take place, nor shall the topography of the Property be changed except to 8 of 20 construct and maintain the permitted structures and improvements on the Property and for farm operations, erosion control and soil management, without the prior written consent of Grantee. 16. Road Construction Grantor may construct roads for barnyards, farm markets, farm roads, or other improvements necessary to provide access to, and parking for, permitted buildings or improvements, or to conduct other activities permitted by this Easement, provided to the greatest extent practicable, impact to the prime, statewide important and unique soils is minimized. No other portion of the Property shall be paved or otherwise covered with concrete, asphalt, or any other impervious paving material. 17. 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 or regulation. However, this shall not prevent the storage of agricultural products and byproducts, temporary storage of trash or household waste in receptacles for periodic off-site disposal, and composting or re-use of biodegradable materials as permitted in Section 7 ("Right to Use Property for Agricultural Uses"), generated off the Property for use on the Property or commercial use so long as they are used and stored in accordance with Sound Agricultural Practices. Notwithstanding the foregoing, the storage and treatment of sewage associated with buildings permitted on the Property, is permitted by this Easement. 18. Permission of Grantee i Where Grantor is required to obtain Grantee's permission for a proposed action hereunder, said permission shall be requested in writing. Grantee shall grant permission unless it determines that such action would 1) violate the Purpose of this Easement, 2) impair the potential for long-term agricultural viability associated with the Property, or 3) unnecessarily impede the use of Property's prime, statewide important or unique soils. Grantee shall respond in writing within forty-five (45) days of receipt of the Grantor's written request which shall include building plans identifying the use, footprint and total square footage of any proposed structures, and related survey information, if available. Grantee shall not be liable for damages for any 9 of 20 failure to grant permission to Grantor. 19. 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: 19(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 for the same. i 19(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 I maintenance of the Property. 19(c) Liability and Indemnification - Grantor agrees to indemnify and hold Grantee and the State of New York, Department of Agriculture and 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. 20. Extinguishment of Development Rights Except as otherwise reserved to the Grantor in this Easement, all 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. 21. Baseline Documentation 10 of 20 I By its execution of this Easement, Grantee acknowledges that the present-uses of the Property are permitted by this Easement. In order to evidence the present condition of the Property (including both natural and man-made features) so as to facilitate future monitoring and enforcement of this Easement, a Baseline Documentation Report, including maps, describing such condition at the date hereof, has been prepared 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. 22. Right of Inspection Grantee shall have the right to enter upon the Property upon 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 of the New York State Department of Agriculture and Markets shall have the same right of inspection. 23. 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 I I of 20 violation. Said remedies shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. 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. i 24. 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 Town of Southold by instrument dated , and recorded in the. office of the Clerk of Suffolk County at Liber at Page Grantor shall notify Grantee. 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 to include said language in any deed or instrument shall not, however; affect the validity or applicability of this Easement to the Property or limit its enforceability in any way. 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 i consistent with the Purpose of this Easement and shall comply with the Conservation Law or any regulations promulgated thereunder. Any such amendment shall be duly recorded. 26. Alienation No property rights acquired by Grantee hereunder shall be alienated except pursuant to the provisions of Chapter 25 or 59, as applicable, of the Town Code of the Town of Southold, 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 12 of 20 shall alter the limitations placed upon the alienation of this property rights or interests which were acquired by the Town prior to any such amendment. 27. Extinguishment of Easement At the mutual request of Grantor, Grantee and 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, 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 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 28(" Proceeds") herein.' 28. Proceeds The grant of this Easement gives rise to a property right, immediately vested in Grantee, which, for purposes of calculating proceeds from a sale or other disposition of the Property as contemplated under Section 27 ("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 at the price per acre set forth in the Purchase/Sale Agreement, by the unencumbered value of the Property, calculated as of the date of the appraisal obtained by Grantee prior to execution of this easement. The Proportionate Share is 71%. The Proportionate Share shall remain constant (subject to reasonable adjustment to the extent permissible under Section 170(h) of the Internal Revenue Code for any improvements which may hereafter be made on the Property). i With regard to the portion of such Proportionate Share equal to the percentage of the purchase price of this Easement that was paid using State Farmland Protection Program Grant funds, Grantee agrees to use such portion in a manner consistent with the Purpose of this Easement. Prior to such re- 13 of 20 use, Grantee must notify the New York State Department of Agriculture and i Markets 29. 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 effect 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 over any interpretation that would render it invalid. 30. 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. 31. 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 full force and effect. 32. Notices Any notice required or desired to be given under this Easement shall be in writing and shall be sent by (1) personal delivery, (ii) via registered or 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 upon delivery by the U.S. Postal Service or private courier. 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;(d) if to New York State Department of Agriculture and Markets, 1013 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. 14 of 20 33. Title The Grantor covenants and represents that the Grantor is the sole i 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. 34. 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. 35. Subsequent Encumbrances The grant of any easements or use restrictions is prohibited, except with the permission of Grantee. 36. Grantor's Environmental Warranty 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 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. 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 are defined by applicable law, and hereby promises to indemnify Grantee, and New York State Department of Agriculture and Markets against, and hold Grantee and New York State Department of Agriculture and Markets harmless 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 15 of 20 I 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. 37. 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 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. 38. 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"). 39. Waiver I 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. 40. 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 16 of 20 any party entitled to possess or use the Property or any portion thereof while such party is the owner or entitled to possession or 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 conditions done or occurring during the period of his or her ownership or conduct. 41. Captions i 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 unto s rids on the date first above written. Granto STEVEN DUBNER Grantee: TOWN OF SOU~T-HOLD By. MARTIIH. SIDOR, DEP TY SUPERVISOR I State of New York ) County of Sy~ofk), ss: On the ) tdav of ~ in the year 2005 before me, the undersigned, personally appeared STEVEN DUBNER, personally known to me or proved to me on the basis of satisfactory evidence to be the individual (s) whose name (s) is (arc) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity (ics), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Signaturc/otli • of div' al taking acknowledgement KAREN J. HAG 17 of 20 NCTARYNo. UC, St to 0' ea Oualifled in Suftolk county commission Expires March 21,'20 d State of New York ) County of 9u*vt k ),.vs: On the f y t day of L~~ in the year 2005 before me, the undersigned, personally appeared MARTIN H. SIDOR, personally known to me or proved to me on the basis of satisfactory evidence to be the individual (s) whose name (s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity (ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. 7J, :N Signature/ of of ind' 'dual taking acknowledgement NOT. :J New York KAREN J. HAGEN "•29 NOTARY PUBLIC. State of New York C' ::aunty No.02HA4927029 r 21. 20 _ Oualified in Suffolk County Commission Expires March 21, 90-g-6 CN)muments and SettinS. AnnetMy DocumenLAAnne\Town of Southold Deeds of Devel6pment RightstDubner DDR South.doc 18 of 20 Stewart Title Insurance Company Title No: 24S-0181 Schedule A Description AMENDED 6/14/2005 ALL that certain plot, piece or parcel of land with the buildings and improvements thereon erected, situate, lying and being at Cutchogue, in the Town of Southold, County of Suffolk and State of New York, being more particularly bounded and described as follows: BEGINNING at a point on the southeasterly side of Middle Road (C.R. 48) distant 798.34 feet northeasterly, as measured along the same, from the easterly end of the curve connecting the northeasterly side of Cox Lane with the southeasterly side of Middle Road (C.R. 48), said point being also at the northeasterly side of land formerly of Homan and now or formerly of Ann and Eugene Berger. RUNNING THENCE along the southeasterly side of Middle Road (C.R. 48) North 70 degrees 19 minutes 20 seconds Bast 54.63 feet to Lot 2 as shown on Conservation Subdivision of Steven Dubncr, last dated 5/24/2005; THENCE along said land the following (2) courses and distances: South 43 degrees 26 minutes 50 seconds Fact 544.80 feet; North 70 degrees 19 minutes 20 seconds Fast 262.58 feet to the southwesterly side of land formerly of Damianos and now of formerly of I?ugcne and Marie Vandenbosch: THENCE along said land the following two (2) courses and distances: South 43 degrees 32 minutes 50 seconds East 334.06 fret; North 60 degrees 31 minutes 10 seconds East 494.30 feet to land now or formerly of Flerodotus Damianos and'1•hc County of Suffolk; THENCE along said land South 43 degrees 48 minutes 10 seconds East, 999.77 feet to land now or formerly of the Long Island Railroad; THENCE along said land the following three (3) courses and distances: South 59 degrees 47 minutes 20 seconds West, 350.00 feet; South 43 degrees 48 minutes 10 seconds East, 20.58 feet: 7.OGFTI IER with all right, title and interest of the party of the first part, in and to the land lying in the street in front of and adjoining said premises. II South 59 degrees 47 minutes 20 seconds West, 1274.22 feet to the northeasterly side of Cox's Lane; THENCE along the northeasterly side of Cox Lane, North 44 degrees 05 minutes 50 seconds West 1624.73 feet to a point; THENCE along said land, North 67 degrees 37 minutes 50 seconds East 107.65 feet to the southeasterly side of Lot 3 as shown on above referenced Conservation Subdivision of Steven llubncr, last dated 5/24/2005; THENCE along said land and Lot Nos. 4 and 5 as shown on above referenced Conservation Subdivision of Steven Dubner, last dated 5/24/2005 the following two (2) courses and distances: South 44 degrees 05 minutes 50 seconds East, 242.45 feet; North 67 degrees 05 minutes 10 seconds East. 768.12 feet to the southwest corner of Lot 5 as shown on above referenced Conservation Subdivision of Steven Dubner, last dated 5/24/2005 THENCE along Lot 5 as shown on above referenced Conservation Subdivision of Steven llubncr, last dated 524/2005 and along land formerly of Homan and now or formerly of Ann and Eugene Burger North 43 degrees 26 minutes 50 seconds West, 700.41 feet to the southeasterly side of Middle Road (C.R. 48), the point or place of BEGINNING. I I OGETHER with all right, title and interest of the party of the first part, in and to the land lying in the street in front orand adjoining said premises.