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HomeMy WebLinkAboutL 12860 P 133 lIffil 1111111111111111111111111111111II1110111111III 1111111 VIIIII1111ffIIII 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 • 1n ,. 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 �� Dual Town Dual County R.P.T.S.A. Aly-w • A' Held for Appointment 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. o( Other 2 YES or NO Grand Total _JS ,P) If NO,see appropriate tax clause on J page# of this instrument.. ci 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 $Agency R DTY A II Verification 05-APR-I• 1 Improved 6 Satisfactions/Discharges/Releases List Property Owners'Mailing Address RECORD&RETURN TO: Vacant Land /Th L/MII E DoROSIKI, S,e. Aam. Tw,v or.$ourmek8 TD /fiW pe&sexvarrau p6-Pr . TD Sour LL, AP/ /197/ TD 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 1 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. 5 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. 6 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. 7 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. 8 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. 9 '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 11 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. 12 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. 13 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) ..• • • •. I Ibji - - —— --— 11.- •-••S UF FRuPCRII ,•y1,4%. eTC E i.;recus c0-101771. HEW +CPI. TA, 4,, Itt,G-gFL-G,-11 *;4:.4-2.• 7,4E.s'e •-• •, Le of,- It• rn,- 1,414,17,•CI, 454 arm,- 47.10711... 3 F '• •e • ‘3, 47%5;1 TA:LT.1:456-, t Nathan Taft Corwin lU • Land Survey.or . -• • •^".• •••••••• .— ...„ . . -„.. • . , , "'"