HomeMy WebLinkAboutL 12860 P 133 lIffil 1111111111111111111111111111111II1110111111III
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SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT Recorded: 04/11/2016
Number of Pages: 23 At: 03: 46:06 PM
Receipt Number : 16-0055191
TRANSFER TAX NUMBER: 15-25470 LIBER: D00012860
PAGE : 133
District: Section: Block: Lot:
1000 09500 0100 011002
EXAMINED AND CHARGED AS FOLLOWS
Deed Amount: $931, 370 . 00
Received the Following Fees For Above Instrument
Exempt Exempt
Page/Filing $115.00 NO Handling $20.00 NO
COE $5.00 NO NYS SRCHG $15.00 NO
TP-584 $5.00 NO Notation $0.00 NO
Cert.Copies $28.75 NO RPT $200.00 NO
Transfer tax $0.00 NO Comm.Pres $0.00 NO
Fees Paid $388.75
TRANSFER TAX NUMBER: 15-25470
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
JUDITH A. PASCALE
County Clerk, Suffolk County
•
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Number of pages 2 3 RECORDED
2016 Apr 11 03:46:06 PM
JUDITH A. PASCALE
- CLERK OF
This document will be public SUFFOLK COUNTY
record. Please remove all L 000012860 .
Social Security Numbers . P 133
prior to recording. G'7#. 1` 25470
Deed 1 Mortgage Instrument Deed/Mortgage Tax Stamp Recofding/Filing Stamps
3 3 FEES
Page/Filing Fee !1 $ Mortgage Amt.
1. Basic Tax
Handling 20. 00 2. Additional Tax
TP-584 Sub Total
Notation Spec./Assit.
or
NO/1
EA-52 17(County) Sub Total Spec./Add.
—
EA-5217(State) TOT.MTG.TAX
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R.P.T.S.A. Aly-w
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Comm.of Ed. 5. 00 !,..A,, Tr*, 1';:,
Transfer Tax P
Affidavit '`., ual Tozoiii w Tax
• p The property covered by this mortgage is
Certified Copy p � or will be improved by a one or two
arge 15. 00 �7
Sub Total q •
family dwelling only.
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Other 2 YES or NO
Grand Total _JS ,P) If NO,see appropriate tax clause on
J page# of this instrument..
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4 I Dist./p- - I" -" I r. ' •'oat 5 Community Preservation Fund
3129600 1000 09500 0100 011002 pt.1 2
Real Propert- Consideration Amount $ 4/b7Q
Tax Service PTS I IIIII 1111 Illl�lllllll1111101111lIIICPF Tax Due $Agency R DTY A II
Verification 05-APR-I•
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Improved
6 Satisfactions/Discharges/Releases List Property Owners'Mailing Address
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Mail to:Judith A. Pascale, Suffolk County Clerk 7 Title Company Information
310 Center Drive, Riverhead, NY 11901 Co.Name FIDELITY NATIONAL TITLE •
wvvw. suffolkcoun#yny.gov/clerk Title# F/6-7,104-/eVAMF-&Ucc
8 Suffolk County Recording & Endorsement Page
This page forms part of the attached G.e,¢nrr aF betti,Pmsvr edAirs ase-me-Arr made by:
(SPECIFY TYPE OF INSTRUMENT)
•
. _ '/OHA/ C. Blal.Ole' 'dA The premises herein is situated in
fiM-!4W..,ET 6 g/4'G4,vE. SUFFOLK COUNTY,NEW YORK.
TO In the TOWN of (Su 7F'OL
IV um., a r So tin.a,tA In the VILLAGE
or HAMLET of ell TCrGter
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
(over)
Pit_ IooLq
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on the
a4"day of March, 2016 at Southold, New York. The parties are JOHN C.
BIGGANE AND MARGARET G. BIGGANE, 168 Euston Road, Garden City, New
York 11530 (herein called "Grantors"), and the TOWN OF SOUTHOLD, a
municipal corporation, having its principal office at 53095 Main Road, P.O.
Box 1179, Southold, New York 11971 (herein called "Grantee").
INTRODUCTION
WHEREAS, Grantors are the owners in fee simple of certain real
property located in the Town of Southold, Suffolk County, New York,
identified as part of SCTM #1000-95-1-11.2 (hereinafter referred to as the
"Property"), as more fully described in SCHEDULE "A" attached, hereto and
made a part hereof, and shown on the survey prepared by Nathan Taft
Corwin, III, Land Surveyor, dated February 10, 2016, last revised March 3;
2016, (a reduced copy of which is attached hereto and made a part hereof
and hereinafter referred to as the "Survey"); and
WHEREAS, the Property is located in the A-C and Low-Density R-80
Zoning Districts of the Town of Southold; and
WHEREAS, the Property contains a significant amount of soils classified
as prime soils worthy of conservation as identified by the United States
Department of Agriculture Soil Conservation Service's Soil Survey of Suffolk
County, New York; and
WHEREAS, the Grantors wish to continue using the Property for
agricultural production as defined in this Easement; and
WHEREAS, the Property is currently used as a sod farm; 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 Property in its present scenic and agricultural condition
has substantial and significant value as an aesthetic and agricultural
resource since it has not been subject to any substantial development; and
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WHEREAS, Grantors and Grantee recognize the value and special
character of the region in which the Property is located, and Grantors and
Grantee have, in common, the purpose and objective of protecting and
conserving the present state and inherent, tangible and intangible values of
the Property as an aesthetic, natural, scenic and agricultural resource; and
WHEREAS, Grantee has determined it to be desirable and beneficial
and has requested Grantors, for itself and its successors and assigns, to
grant a Development Rights Easement to Grantee in order to restrict the
further development of the Property while permitting compatible uses
thereof;
NOW THEREFORE, in consideration of NINE HUNDRED THIRTY ONE
THOUSAND THREE HUNDRED SEVENTY AND 00/100 DOLLARS
($931,370.00), the remaining value of the easement so conveyed, if any,
being and intended to be a charitable contribution by the Grantor to
Grantee, and other good and valuable consideration paid to the Grantors,
the receipt of which is hereby acknowledged, the Grantors do hereby grant,
transfer, bargain, sell and convey to the Grantee a Development Rights
Easement, in gross, which shall be binding upon and shall restrict the
premises shown and designated as the Property herein, more particularly
bounded and described on Schedule "A" annexed hereto and made a part of
this instrument.
TO HAVE AND TO HOLD said Development Rights Easement and the
rights and interests in connection with it and as hereinafter set forth with
respect to the Property unto the Grantee, its successors and assigns forever,
reserving, however, for the direct use and benefit of the Grantors, their legal
representatives, successors and assigns, the fee title to the property, and
the exclusive right of occupancy and of use of the Property, subject to the
limitations, condition, covenants, agreements, provisions and use
restrictions hereinafter set forth, which shall constitute and shall be
servitudes upon and with respect to the Property.
The Grantors and Grantee for themselves, and for and on behalf of
their respective legal representatives, successors and assigns, hereby
covenant and agree as follows:
0.01 Grantors' Warranty
Grantors warrant and represent to the Grantee that Grantors are the
owners of the Property described in Schedule A, free of any mortgages or
liens, except as set forth in Fidelity National Title Insurance Services, LLC
2
Title Report F16-7404-100488-SUFF, which mortgage will be satisfied as of
the date hereof, and possesses the right to grant this easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantors 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 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, agricultural
and aesthetic values of the Property and have the common purpose of
preserving these values by limiting the uses of the Property. This
instrument is intended to convey a development rights easement on the
Property by Grantors to Grantee, exclusively for the purpose of preserving
its character and its environmental, natural, scenic, agricultural, and
aesthetic values in perpetuity by preventing the use or development of the
Property for any purpose or in any manner contrary to the provisions hereof,
in furtherance of federal, New York State and local conservation policies.
0.04 Governmental Recognition
New York State has recognized the importance of private efforts to
preserve rural land in a scenic, natural, and open condition through
conservation restrictions by the enactment of General Municipal Law §247.
Similar recognition by the federal government includes §170(h) of the
Internal Revenue Code of 1986, as amended, ("IRC") and other federal
statutes.
0.05 Baseline Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property are compatible with the Purpose
of this Easement as set forth in Section 0.03 above. In order to aid in
identifying and documenting the present condition of the Property's
environmental, natural, scenic, agricultural, and aesthetic resources and
otherwise to aid in identifying and documenting such values as of the date
hereof, to assist Grantors and Grantee with monitoring the uses and
activities on the Property and ensuring compliance with the terms hereof,
3
Grantee has prepared, with Grantors' cooperation, an inventory of the
'Property's relevant features and conditions (the "Baseline Documentation").
This Baseline Documentation includes, but need not be limited to, a survey
prepared by Nathan Taft Corwin, III, Land Surveyor, dated February 10,
2016 and last revised March 3, 2016, and a Phase 1 Environmental Site
Assessment dated January 28, 2016 by Cashin Associates, P.C.
Grantors and Grantee acknowledge and agree that in the event a
controversy arises with respect to the nature and extent of the Grantors'
uses of the Property or its physical condition as of the date hereof, the
parties shall not be foreclosed from utilizing any other relevant or material
documents, surveys, reports, photographs or other evidence to assist in the
resolution of the controversy.
0.06 Recitation
In consideration of the previously recited facts, mutual promises,
undertakings, and forbearances contained in this Development Rights
Easement, the parties agree upon its provisions, intending to be bound by it.
ARTICLE ONE
THE EASEMENT
1.01 Type
This instrument conveys a development rights easement (herein called
the "Easement"). This Easement shall consist of the limitations,
agreements, covenants, use restrictions, rights, terms, and conditions
recited herein. Reference to this "Easement" or its "provisions" shall include
any and all of those limitations, covenants, use restrictions, rights, terms
and conditions.
1.02 Definitions
"Development Rights" shall mean the permanent legal interest and
right to prohibit or restrict the use of the Property for uses or purposes
consistent with the terms of this Easement, including agricultural production
as presently referenced in §247 of the General Municipal Law and/or defined
in Chapter 70 of the Town Code of the Town of Southold (the "Town Code"
or "Code") now, or as said Chapters may be amended, and including the
production of crops, livestock and livestock products as defined in
§301(2)(a)-(j) of the New York State Agriculture and Markets Law
("Agriculture and Markets Law"), now, or as said §301(2)(a)-(j) may be
amended, provided said amended provisions are inherently similar in nature
4
to those crops, livestock and livestock products included as of the date of
'this Easement. No future restrictions in said laws and/or Code or limitation in
the definitions set forth in said laws and/or Code shall preclude a use that is
permitted under the current law and/or Code.
"Improvement" shall mean any addition to raw land, such as
structures, fences, wells or drainage.
"Lawn" shall mean an area of land on which grasses or other durable
plants are grown and maintained at a short height and principally used for
aesthetic or other purposes. Land that is in Agricultural Production,
including land in a fallow or otherwise idle manner, is not "Lawn."
"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. For
purposes of this Easement, a "structure" shall not include trellis, posts and
wiring, farm irrigation systems, nursery mats, or fencing necessary for
agricultural operations or to mark the boundaries of the Property, including
without limitation fencing to keep out predator animals, including deer.
Approvals for those items listed in the preceding sentence shall be as
required by applicable provisions of the Town Code.
1.03 Duration
This Easement shall be a burden upon and shall run with the Property
in perpetuity.
1.04 Effect
This Easement shall run with the Property as an incorporeal interest in
the Property, and shall extend to and be binding upon Grantors, Grantors'
agents, tenants, occupants, heirs, personal representatives, successors and
assigns, and provides Grantee with the right to administer, manage and
enforce the Easement as provided herein. The word "Grantors" when used
herein shall include all of those persons or entities. Any rights, obligations,
and interests herein granted to Grantors and/or Grantee shall also be
deemed granted to each and every one of its subsequent agents,
successors, and assigns, and the word "Grantors and/or Grantee" when used
herein shall include all of those persons or entities.
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ARTICLE TWO
SALE
GRANTORS, for NINE HUNDRED THIRTY ONE THOUSAND THREE
HUNDRED SEVENTY AND 00/100 DOLLARS ($931,370.00) and such other
good and valuable consideration, hereby grants, releases, and conveys to
Grantee this Easement, in perpetuity, together with all rights to enforce it.
Grantee hereby accepts this Easement in perpetuity, and undertakes to
enforce it against Grantors.
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts, uses and
practices shall be prohibited forever upon or within the Property:
3.01 Structures
No structures may be erected or constructed on the Property except as
permitted by the Southold Town Land Preservation Committee ("Land
Preservation Committee") and subject to all other applicable provisions of
the Town Code and Sections 1.02 and 4.06 of this Easement.
3.02 Excavation and Removal of Materials; Mining
The excavating, regrading, scraping or filling of the Property shall be
prohibited, without the prior written consent of Grantee, including but not
limited to from the Land Preservation Committee.
Mineral exploitation, and extraction of any mineral, including but not
limited to soil, gravel, sand and hydrocarbons, by any method, surface or
subsurface, is prohibited.
The removal of topsoil, sand, or other materials from the Property is
prohibited, nor shall the topography of the Property be changed, except in
connection with sound agricultural practices, all of which shall require the
prior written consent of Grantee, including but not limited to from the Land
Preservation Committee.
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3.03 Subdivision
.
Except as provided in this Section 3.03, the Property may not be
further subdivided pursuant to Town Law §265, §276, §277 or §335 of the
Real Property Law, as they may be amended, or any other applicable State
or local law. "Subdivision" shall include the division of the portion of the
Property from which the development rights are acquired into two or more
parcels, in whole or in part.
Grantors may, subject to approval by the Planning Board' of the Town
of Southold and as otherwise required by applicable law, subdivide the
Property, provided that all resulting parcels contain at least 10 acres of
preserved land used for agricultural purposes and subject to a development
rights easement or other conservation instrument.
3.04 Dumping
The dumping or accumulation of unsightly or offensive materials
including, but not limited to trash, garbage, sawdust, ashes or chemical
waste on the Property shall be prohibited. This prohibition shall exclude
materials used in the normal course of sound agricultural practices on the
Property, including fertilization, composting and crop removal.
3.05 Signs
The display of signs, billboards, or advertisements shall be prohibited,
except signs whose placement, number, and design do not significantly
diminish the scenic character of the Property and only for any of the
following purposes: (a) to state the name of the Property and the names
and addresses of the occupants and the character of the business conducted
thereon; (b) to temporarily advertise the Property or any portion thereof for
sale or rent; (c) to post the Property to control unauthorized entry or use;
(d) to aid visitors in interpreting the natural features and/or wildlife on the
Property; or (e) by Grantee, with the prior written consent of the Grantors,
to announce this Easement. Signs are subject to regulatory requirements of
the Town.
3.06 Utilities
The creation or placement of overhead utility transmission lines, utility
poles, wires, pipes, wells or drainage systems ("utilities") on the Property
shall be prohibited, except for utilities to service structures approved
pursuant to §4.06 and subject to the prior written consent of the Grantee.
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Underground utilities must, to the extent possible, be constructed within 30
'feet of the centerline of any roads or driveways, and may be used solely to
service the permitted structures on the Property.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, the use of the
Property or structures on it for any residential, commercial or industrial
uses, permanent or temporary, including but not limited to a riding
academy, shall be prohibited. For the purposes of this section, agricultural
production, as that term is presently referenced in §247 of the General
Municipal Law and/or defined in Chapter 70 of the Town Code, ,now, or as
said Chapter 70 may be amended and including the production of crops,
livestock and livestock products as defined in 5301(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 and protected by a development rights
easement or other instrument, shall not be considered a commercial use. No
improvements, uses or activities inconsistent with current or future
agricultural production shall be permitted on the Property. Under no
circumstances shall athletic fields, golf courses or ranges, commercial
airstrips and helicopter pads, motocross biking, or any other improvements
or activity inconsistent with current or future agricultural production be
permitted on the Property.
3.08 Soil and Water
Any use or activity that causes or is likely to cause soil degradation or
erosion or pollution of any surface or subsurface waters shall be prohibited.
This prohibition shall not be construed as extending to agricultural
operations and practices (including, without limitation, the use of
agrochemicals such as fertilizers, pesticides, herbicides, and fungicides) that
are used in accordance with sound agricultural management practices of the
Natural Resources Conservation Service ("NRCS").
3.09 Drainage
The use of the Property for a leaching or sewage disposal field shall be
prohibited. The use of the Property for a drainage basin or sump shall be
prohibited, except in accordance with sound agricultural practices and in
order to control flooding or soil erosion on the Property.
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3.10 Development Rights
The use of the acreage of this Property for purposes of calculating lot
yield on any other Property shall be prohibited. Grantors hereby grant to
Grantee all existing development rights (and any further development rights
that may be created through a rezoning of the Property) on the Property,
except for the right to construct, maintain and replace any pre-existing
structures, and to construct new structures, as such rights may be provided
herein, 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.
3.11 Landscaping Activities
Landscaping activities shall be conducted in accordance with Section
4.04 below. Under no circumstances shall the Grantors establish or maintain
a Lawn on the Property.
ARTICLE FOUR
GRANTORS' RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantors shall retain all
other rights of ownership in the Property, some of which are more
particularly described in this ARTICLE FOUR.
4.02 Possession
Grantors shall continue to have the right to exclusive possession of the
Property.
4.03 Use
Grantors shall have the right to use the Property in any manner and
for any purpose consistent with and not prohibited by this Easement, as well
as applicable local, State, or federal law. Grantors shall have the right to
use the Property for uses, improvements and activities permitted by the
Town Code, now or in the future, on agricultural lands protected by a
development rights easement or other instrument, and for educational or
training programs related to agricultural production or activities.
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'4.04 Cutting of Timber; Landscaping
The cutting, pruning or removal of trees, shrubs, or other vegetation
on or from the Property is prohibited, except for the following purposes: (a)
to clear and/or restore any tree, shrub, or other vegetation that is dead,
damaged, diseased, destroyed or non-native and invasive; (b) to prune
and/or selectively thin trees to create limited vistas and/or for grounds
maintenance; (c) to manage and/or improve the significant relatively natural
habitat on the Property, including by removal of invasive species; (d) as
reasonably necessary for the conduct of those uses and activities expressly
permitted by this Easement, including but not limited to constructing and
maintaining those structures, expressly permitted by this Easement; (e) to
clear the Property for agricultural production if, after the effective date, as
further described in the Baseline Documentation, the Property has lain fallow
and was allowed to become wooded; (f) for the purpose of continuing the
modes of landscaping exercised on the Property prior to and as of the
Effective Date of this Easement as further described in the Baseline
Documentation; and (g) to remove any hazard or other legal liability to
persons, personal or real property, or the Property and/or to persons or
personal or real property of neighboring properties; provided, however, that
any such activity shall require Grantee's prior written approval pursuant to
Article Five below and must be conducted in accordance with generally
accepted best habitat conservation and forest management practices and
the Purpose of this Easement.
4.05 Agricultural Production and Activities
Grantors shall have the right to engage in all types of agricultural
production as presently referenced in §247 of the General Municipal Law
and/or defined in Chapter 185 and/or Chapter 70 of the Town Code, now, or
as they 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.
Grantors may offer "U-Pick" operations and/or the use of a corn maze
to the general public, provided that such activities are conducted in
conjunction with seasonal harvests, do not interfere with agricultural
production and are otherwise consistent with and do not derogate from or
defeat the Purpose of this Easement or other applicable laws.
Notwithstanding the definition of agricultural production in Chapter 70
of the Town Code or any successor chapter, structures shall be prohibited
10
except as set forth in §4.06 herein and as permitted by the Town Code now
'or in the future on lands protected by a development rights easement or
other conservation instrument.
4.06 Structures
A. Allowable Improvements. Grantors shall have the right to erect
and maintain the following improvements on the Property, as may be
permitted by the Town Code and subject to the approval of the Town of
Southold Land Preservation Committee, provided the improvements are
consistent with and do not derogate from or defeat the Purpose of this
Easement or other applicable laws:
(i) Underground facilities used to supply utilities solely to
service the permitted structures, improvements and
uses on the Property;
(ii) Right of way along the easterly side of the Property,
used to access existing residential lots to the north.
(iii) New construction, provided such structures are
necessary for or accessory to agricultural production;
(iv) Renovation, maintenance and repairs of any
existing structures or structures built or permitted
pursuant to this Section 4.06, provided the primary
purpose of the structure is consistent with this
Easement;
B. Conditions. To the extent practical, any permitted improvements
shall be sited so as to avoid material impairment to 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 Purpose intended herein, and construction of any such improvement
shall minimize disturbances to the environment. Grantors 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
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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
Grantors 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
Grantors shall have the right to convey, mortgage or lease all of its
remaining interest in the Property, but only subject to this Easement.
Grantors shall promptly notify Grantee of any conveyance of any interest in
the Property, including the full name and mailing address of any transferee,
and the individual principals thereof, under any such conveyance. The
instrument of any such conveyance shall specifically set forth that the
interest thereby conveyed is subject to this Easement, without modification
or amendment of the terms of this Easement, and shall incorporate this
Easement by reference, specifically setting for the date, office, liber and
page of the recording hereof. The failure of any such instrument to comply
with the provisions hereof shall not affect Grantee's rights hereunder.
4.09 Further Restriction
Nothing in this Easement shall prohibit or preclude Grantors from
further restricting the use, improvements or structures on the Property,
including but not limited to imposing a conservation easement on the
Property as that term is defined under the New York State Environmental
Conservation Law, §49.0301, et seq., and/or IRC §170(h). 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.
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ARTICLE FIVE
GRANTORS' OBLIGATIONS
5.01 Taxes and Assessments
Grantors shall continue to pay all taxes, levies, and assessments and
other governmental or municipal charges, which may become a lien on the
Property, including any taxes or levies imposed to make those payments,
subject, however, to Grantors' right to grieve or contest such assessment.
The failure of Grantors to pay all such taxes, levies and assessments and
other governmental or municipal charges shall not cause an alienation of any
rights or interests acquired herein by Grantee.
5.02 Indemnification
Grantors shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or
any of its officers, employees, agents or independent contractors, all of
which shall be reasonable in amount, arising from injury due to the physical
maintenance or condition of the Property caused by Grantors' actions or
inactions, unless such injury is caused solely by Grantee's acts, and from
any taxes, levies or assessments upon it or resulting from this Easement, all
of which shall be considered Grantors' obligations.
5.03 Third Party Claims
Grantors shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, or expenses, charges or liens to Grantee
or any of its officers, employees, agents or independent contractors, all of
which shall be reasonable in amount, resulting: (a) from injury to persons or
damages to property arising from any activity on the Property; and (b) from
actions or claims of any nature by third parties arising out of the entering
into or exercise of rights under this Easement, excepting any of those
matters arising solely from the acts of Grantee, its officers, employees,
agents, or independent contractors.
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ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee shall have the right to enter upon the Property at reasonable
times, upon prior notice to Grantors, and in a manner that will not interfere
with Grantors' quiet use and enjoyment of the Property, for the purpose of
inspection to determine whether this Easement and its Purpose and
provisions are being upheld. Grantee shall not have the right to enter upon
the Property for any other purposes, except as provided in Section 5.04 and
6.03, or to permit access upon the Property by the public.
6.02 Restoration
In addition to Grantee's remedies under Section 5.04, Grantee shall
have the right to require the Grantors to restore the Property to the
condition required by this Easement and to enforce this right by any action
or proceeding that Grantee may reasonably deem necessary. However,
Grantors shall not be liable for any changes to the Property resulting from
causes beyond the Grantors' control, including, without limitation, fire, flood,
storm, earth movement, wind, weather or from any prudent action taken by
the Grantors under emergency conditions to prevent, abate, or mitigate
significant injury to persons or to the Property or crops, livestock or livestock
products resulting from such causes.
6.03 Enforcement Rights of Grantee
Grantors acknowledge and agree 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 Grantors' part to be observed or performed
pursuant to this Easement is not cured by Grantors within thirty (30) days'
notice thereof by Grantee (which notice requirement is expressly waived by
Grantors 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 Purpose of
this Easement), Grantee shall have the right at Grantors' 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,
14
(ii) To enter upon the Property and exercise reasonable efforts to
, terminate or cure such breach, default or violation and/or to
cause the restoration of that portion of the Property affected by
such breach, default or violation to the condition that existed
prior thereto, or
(iii) To enforce any term provision, covenant or obligation in this
Easement or to seek or enforce such other legal and/or equitable
relief or remedies as Grantee deems necessary or desirable to
ensure compliance with the terms, conditions, covenants,
obligations and Purpose 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 withrespect 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.
Grantors shall pay either directly or by reimbursement to Grantee, all
reasonable attorneys' fees, court costs and other expenses incurred by
Grantee (herein called "Legal Expenses") in connection with any proceedings
under this Section, as approved by the Court, in which Grantee prevails.
The cure period in this Section 6.03 may be extended for a reasonable
time by Grantee if such restoration cannot reasonably be accomplished
within thirty (30) days.
6.04 Notice
All notices required by this Easement must be written. Notices shall be
delivered by hand or by certified U.S. mail, return receipt requested, with
sufficient prepaid postage affixed and with return receipts requested. Mailed
notice to Grantors shall be addressed to Grantors' address as recited herein,
or to such other address as Grantors 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. 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.
15
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.
6.06 Extinguishment of Easement/Condemnation
At the mutual request of Grantors and Grantee, a court with
jurisdiction may, if it determines that conditions surrounding the Property
have changed to such an extent that it becomes impossible to fulfill the
Purpose of this Easement described in Section 0.03, extinguish or modify
this Easement in accordance with applicable law. The mere cessation of
farming on the Property shall not be construed to be grounds for
extinguishment of this Easement.
If at any time the Property or any portion thereof shall be taken or
condemned by eminent domain, by Grantee or by any other governmental
entity, then this Easement shall terminate with respect to the Property, or
portions thereof so taken or condemned, and the Property shall not be
subject to the limitations and restrictions of this Easement. If the
condemnation is undertaken by Grantee, Grantors shall be entitled to the
value of the Property reflective of the limitations of this Easement, and any
condemnation award payable to Grantors shall be in proportion to the value
attributable to the residual restricted value of the Property. If the
condemnation is undertaken by an entity other than Grantee, then Grantors'
award shall reflect the unencumbered condition of the Property as if the
Property were not subject to the restrictions contained herein; however, a
portion of such condemnation award shall be payable to Grantee in
proportion to the value attributable to the development rights transferred
hereby.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between its parties
concerning its subject matter. Any prior agreement between the parties
concerning its subject matter shall be merged into this Easement and
superseded by it.
16
7.02 Amendment
•
This Easement may be amended only with the written consent of
Grantee and current Grantors and in accordance with any applicable State
and local laws. Any such amendment shall be consistent with the Purpose of
this Easement and shall comply with the Town Code and any regulations
promulgated hereunder and with the Purpose of this Easement, and shall be
duly recorded.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be alienated
except pursuant to the provisions of Chapter 70 of the Town Code or any
successor chapter and other applicable laws, upon the adoption of a local law
authorizing the alienation of said rights and interest, following a public
hearing and, thereafter, ratified by a mandatory referendum by the electors
of the Town of Southold. No subsequent amendment of the provisions of the
Town Code shall alter the limitations placed upon the alienation of those
property rights or interests which were acquired by the Town prior to any
such amendment.
In addition to the limitations set forth above, Grantee shall have the
right to transfer all or part of this Easement to any public agency, or private
non-governmental organization, that at the time of transfer is a "qualified
organization" under §170(h) of the Internal Revenue Code, provided that the
transferee expressly agrees to assume the responsibility imposed on the
Grantee by this Easement.
Any easement transfer must be approved by the Grantors or any
subsequent owner. If the Grantee ever ceases to exist, a court of competent
jurisdiction may transfer this Easement to another qualified public agency or
qualified organization that agrees to assume the responsibilities imposed by
this Easement.
7.04 Severability
Any provision of this Easement restricting Grantors' 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.
17
'7.05 Governing Law
New York law applicable to deeds to and easements on land located
within New York shall govern this Easement in all respects, including validity,
construction, interpretation, breach, violation and performance.
7.06 Interpretation
Regardless of any contrary rule of construction, no provision of this
Easement shall be construed in favor of one of the parties because it was
drafted by the other party's attorney. No alleged ambiguity in this Easement
shall be construed against the party whose attorney drafted it. If any
provision of this Easement is ambiguous or shall be subject to two or more
interpretations, one of which would render that provision invalid, then that
provision shall be given such interpretation as would render it valid and be
consistent with the purposes of this Easement. Any rule of strict construction
designed to limit the breadth of the restrictions on use of the Property shall
not apply in the construction or interpretation of this Easement, and this
Easement shall be interpreted broadly to effect the Purpose of this Easement
as intended by the parties. The parties intend that this Easement, which is
by nature and character primarily negative in that Grantor has restricted and
limited his right to use the Property, except as otherwise
recited herein, be construed at all times and by all parties to effectuate its
Purpose.
7.07 Public Access
Nothing contained in this Easement grants, nor shall it be interpreted
to grant, to the public, any right to enter upon the Property, or to use
images of the Property. Grantee may use images of the Property only for
non-commercial reporting of this Easement.
7.08 Warranties
The warranties and representations made by the parties in this
Easement shall survive its execution.
7.09 Recording
Grantee shall record this Easement in the land records of the office of
the Clerk of the County of Suffolk, State of New York.
18
7.1O Headings
The headings, titles and subtitles herein have been inserted solely for
convenient reference, and shall be ignored in its construction.
7.11 Acknowledgment of Charitable Contribution
The parties recognize that Grantor intends to make a charitable
contribution in connection with this Grant of Development Rights Easement.
IN WITNESS WHEREOF, Grantors have executed and delivered and Grantee
has accepted and received this Grant of Development Rights Easement on
the day and year set forth above.
ACK •WLEDGED AND ACCEPTED:
Jo . Biggan , Grantor
r
Margaretinarad.
if
99 G. Bi ane Grantor
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUTHOLD, Grantee
BY: 16401,4g0A
Scott A. Russell, Supervisor
STATE OF NEW YORK)
COUNTY OF SUFFOLK), SS:
On the 494-iday of March in the year 2016 before me, the undersigned, personally
appeared John C. Biggane, 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
•
Notary PATRICIA S ate 0�eNwYork
No. 01FA4950146
Qualifiad In Suffolk County
19 Commission Expires April 24, la,
STATE OF NEW YORK)
COUNTY OF SUFFOLK), SS:
On the olgil day of March in the year 2016 before me, the undersigned, personally
appeared Margaret G. Biggane, 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.
6:61,vit lath_
Signature/office of individual taking acknowledgement
PATRICIA L. FALLON
Notary Public,State Of New York
STATE OF NEW YORK ) iVo. 01 FA4950146
Qualified In Suffolk County
COUNTY OF SUFFOLK ) SS: ComMiSsion Expires April 24, d a i 9
On this titi day of March in the year 2016 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.
ole n rkh
Signature/office of individual taking acknowledgement
LAUREN M.STANDIS14
Notary Public.Sttate o00S of� �
Y
Qualified in Suffoik tai 9,2019
Commission expires Ap
20
�.4 Fidelity National Title Insurance Company
Policy No: NY-FRVH-SAM-2730632-1-16-100488 Title No.: F16-7404-100488-SUFF
SCHEDULE A-1
Description
Amended 03/17/2016
ALL that certain plot, piece or parcel of land, situate, lying and being at Cutchogue, Town of Southold,County of Suffolk
and State of New York, being bounded and described as follows:
BEGINNING at a monument set in the northwesterly side of Oregon Road distant 525 feet more or less southwesterly as
measured along the northwesterly side of Oregon Road from the intersection of the northwesterly side of Oregon Road
with the southwesterly side of Duck Pond Road and said point or place of beginning being the intersection of the
southwesterly corner of land now or formerly of Duck Pond Road Associates, LLC and from said point of beginning;
RUNNING THENCE along the northwesterly side of Oregon Road South 53 degrees 31 minutes 10 seconds West, 70.33
feet;
THENCE along land now or formerly of Domaleski the following three (3)courses and distances:
1)Northeasterly along the arc of a curve bearing to the left having a radius of 20.00 feet, a length of 31.73 feet;
2)North 37 degrees 22 minutes 40 seconds West, 342.91 feet;
3) South 52 degrees 53 minutes 50 seconds West, 295.09 feet to land now or formerly of Marie Sara Garvey Thompson;
THENCE along said land North 37 degrees 06 minutes 10 seconds West,2608.73 feet;
THENCE North 74 degrees 35 minutes 22 seconds East,288.38 feet;
THENCE North 37 degrees 33 minutes 40 seconds West, 27.00 feet; .
THENCE North 74 degrees 35 minutes 22 seconds East, 26.99 feet;
THENCE along map and land now or formerly of Duck Pond Road Associates, LLC and along the easterly side of a 25
foot right of way South 37 degrees 33 minutes 40 seconds East,267.55 feet and South 37 degrees 52 minutes 10 seconds
East, 1876.23 feet;
THENCE South 42 degrees 29 minutes 20 seconds East, 260.73 feet;
THENCE South 37 degrees 22 minutes 40 seconds East,479.75 feet to the northwesterly side of Oregon Road,the point
or place of BEGINNING.
Schedule A-I(Description) Owner's Policy Page 2
Rev.(02104)
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