HomeMy WebLinkAboutL 12571 P 833 SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT Recorded: 11/14/2008
Number of Pages: 19 At: 10 :33 :23 AM
Receipt Number : 08-0109243
TRANSFER TAX NUMBER: 08-08948 LIBER: D00012571
PAGE : 833
District: Section: Block: Lot:
1000 054 . 00 03 . 00 024 . 005
EXAMINED AND CHARGED AS FOLLOWS
Deed Amount: $3, 575,512 .00
Received the Following Fees For Above Instrument
Exempt Exempt
Page/Filing $95.00 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 $12 .35 NO RPT $30 .00 NO
Transfer tax $0 . 00 NO Comm.Pres $0 .00 NO
Fees Paid $182 .35
TRANSFER TAX NUMBER: 08-08948
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
Judith A. Pascale
County Clerk, Suffolk County
1 2
Number of pages
RECORDED
20CIS Nott 14 10:33:23 AM
Judith A. Pascale
CLERK OF
This document will be public SUFFOLK COUNTY
record. Please remove all L D00012571
Social Security Numbers P s3.3
`' OT# 08-08948
prior to recording.
Deed/Mortgage Instrument Deed/Mortgage Tax Stamp Recording/Filing Stamps
3 FEES
Page/Filing Fee Mortgage Amt.
1. Basic Tax
Handling �_ 2. Additional Tax
TP-584 Sub Total
Notation Spec./Assit.
� or
EA-52 17(County) Sub Total�O Spec./Add. _
EA-5217(State) \ TOT.MTG.TAX
Dual Town_Dual County
R.P.T.S.A. Q 11 11//l/V
Held for Appointment
Comm.of Ed. 5• 00 Transfer Tax r
' idavit
• • Mansion Tax
The property covered by this mortgage is
."ertified Copy/ WO
09 o� or will be Y
improved b a one or two
P
NYS Surchar 15. 00 5 family dwelling only.
Se Sub Total
YES or NO
Other l
Grand Total _-� / �/ If NO,see appropriate tax clause on
�/. page# of this instr `entt
4 1 Dist. S1 1000 05400 0300 024005 5 Community Preservation Fund
Real Property/OC p T g Consideration Amount$3 7 q?
Tax Service R SMI A
Agency 14-N'O CPF Tax Due $
Verification n,, rA
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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 RSCon,c B5;B9,-r �C,
www.suffolkcountyny.gov/clerk
Title# /°' 0116-06
8 Suffolk Countv Recor' dina & Endorsement Pa2e
This page forms part of the attached / =J• /�7�-5 �SE made by:
(SPECIFY TYPE OF INSTRUMENT)
The premises herein is situated in
SUFFOLK COUNTY,NEW YORK.
T In the TOWN of
/O�/�I QFJi//Ctc In the VILLAGE
or HAMLET of
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
(over) I
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on
the /3 day of November, 2008 at Southold, New York. The parties
are JOHN A. SEPENOSKI, 5600 Horton Lane, Southold, NY 11971,
PATRICIA A. SEPENOSKI, 27965 Route 25, Orient, NY 11957 (herein
collectively called "Grantor"), and the TOWN OF SOUTHOLD, a
municipal corporation, having its principal office at 53095 Main Road,
P.O. Box 1179, Southold, New York 11971 (herein called "Grantee").
INTRODUCTION
WHEREAS, Grantor is the owner in fee simple of certain real
property located in the Town of Southold, Suffolk County, New York,
identified as part of SCTM #1000-54-3-24.1 more fully described in
SCHEDULE "A" attached hereto and made a part hereof (the
"Property") and shown on the survey prepared by Peconic Surveyors,
P.C., dated August 4, 2008 and last revised November 7, 2008 (the
"Survey"); and
WHEREAS, the Property is located in the A-C Zoning District of
the Town of Southold; and
WHEREAS, the Property contains soils classified as Class I and
Class II worth of conservation as identified b the United States
Y Y
Department of Agriculture Soil Conservation Service's Soil Survey of
Suffolk County, New York; and
WHEREAS, the Property is part of the New York State
Agricultural District #1, and the Grantor wishes to continue using the
Property for agricultural production as defined in this Easement; and
WHEREAS, the Property is currently used for field crops and
woodlands; 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 Section
272-a of the New York 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 development;
and
WHEREAS, Grantor.and Grantee recognize the value and special
character of the region in which the Property is located, and Grantor
and Grantee have, in common, the purpose and objective of protecting
and conserving the present state and inherent, tangible and intangible
values of the Property as an aesthetic, natural, scenic and agricultural
resource; and
WHEREAS, Grantee has determined it to be desirable and
beneficial and has requested Grantor, for itself and its successors and
assigns, to grant a Development Rights Easement to Grantee in order
h,OV 12 2008
Peconic Abstract, Inc.
Title No.: FNP-01506
Amended 11/10/08
Development ment Ri hts
p 9
Schedule A Description
ALL that certain plot, piece or parcel of land, situate North of the Village of
Southold, in the County of Suffolk and State of New York, and in the Township of
Southold, more particularly bounded and described as follows:
BEGINNING at a point on the northerly side of Old North Road distant
1332.39 feet westerly from the corner formed by the intersection of the westerly side
of Lighhouse Road with the northerly side of Old North Road;
THENCE along the northerly side of Old North Road, South 33 degrees 29
minutes 28 seconds West 311.39 feet to a monumentn
a d to land now or formerly of
Stepnoski;
THENCE along said land now or formerly of Stepnoski the following (2)
courses and distances:
1) North 42 degrees 46 minutes 40 seconds West, 150.00 feet;
2) South 33 degrees 26 minutes 10 seconds West, 145.00 feet to land now or
formerly of Suffolk County Water Authority;
THENCE-along said land, North 42 degrees 46 minutes 40 seconds West,
1489.58 feet to a pipe and to land now or formerly of Boyce;
THENCE along said land now or formerly of Boyce the following (2) courses and
distances:
1) North 44 degrees 02 minutes 50 seconds East, 270.67 feet to a pipe;
2) North 42 degrees 00 minutes 50 seconds West, 887.37 feet to a pipe and to
Map of Northwood Estates, File#5675, filed 2/17/72;
NOV 12 2008
Continued page
THENCE along said land, North 39 degrees 47 minutes 10 seconds East,
1064.89 feet to a rod and to land now or formerly of Town of Southold;
THENCE South 41 degrees 47 minutes 40 seconds East, 1151.49 feet; to a
monument
THENCE South 33 degrees 19 minutes 30 seconds West, 819.56 feet to the
northwest corner of the reserved area;
THENCESnu43-42 degrees 19 minutes 40 secondsE4s Y, 968.36 feet;
THENCE SW , 33 degrees 29 minutes 28 secondske ._t, 71.94 feet;
THENCE.56CM-42 degrees 19 minutes 40 seconds" , 237.65 feet to the
northerly side of Old North Road and the point or place of BEGINNING.
SUBJECT TO a right-of-way along the westerly line of the
described premises.
to restrict the further development of the Property while permitting
compatible uses thereof;
NOW THEREFORE, in consideration of THREE MILLION-FIVE
HUNDRED AND SEVENTY-FIVE THOUSAND-FIVE HUNDRED AND
TWELVE DOLLARS ($3,575,512.00) and other good and valuable
consideration paid to the Grantor, the receipt of which is hereby
acknowledged, the Grantor does hereby grant, transfer, bargain, sell
and convey to the Grantee a Development Rights Easement, in gross,
which shall be binding upon and shall restrict the premises shown and
designated as the 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 Grantor, its legal representatives, successors and assigns, the
exclusive right of occupancy and of use of the Property, subject to the
limitations, condition, covenants, agreements, provisions and use
restriction hereinafter set forth, which shall constitute and shall be
servitudes upon and with respect to the Property.
The Grantor, for himself, and for and on behalf of his legal
representatives, successors and assigns, hereby covenants and agrees
as follows:
0.01 Grantor's Warranty
Grantor warrants and represents to the Grantee that Grantor is
the owner of the Property described in Schedule A, free of any
mortgages or liens and possesses the right to grant this easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a
municipal corporation organized and existing under the laws of the
State of New York and is authorized under Section 64 of Town Law and
Section 247 of the New York 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 and
agricultural values of the Property and have the common purpose of
preserving these values. This instrument is intended to convey a
Development Rights Easement on the Property by Grantor to Grantee,
exclusively for the purpose of preserving its character in perpetuity for
its environmental, scenic, agricultural and natural values 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.
2
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
Section 247. Similar recognition by the federal government includes
Section 170(h) of the Internal Revenue Code and other federal
statutes.
0.05 Baseline Documentation
Grantee acknowledges by acceptance of this Development p Rights
Easement that present uses of the Property are compatible with the
purposes of this Easement. In order to aid in identifying and
documenting the present condition of the Property's natural, scenic,
agricultural, and aesthetic resources and otherwise to aid in identifying
and documenting the Property's agricultural values as of the date
hereof, to assist Grantor and Grantee with monitoring the uses and
activities on the Property and ensuring compliance with the terms
hereof, Grantee has prepared, with Grantor's 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 dated August 4, 2008 last revised
November 7, 2008 prepared by Peconic Surveyors, P.C., a Phase 1
Environmental Site Assessment dated August 22, 2008 by Nelson,
Pope &Voorhis, LLC, an aerial photograph of the Property,
approximately forty-four (44) 8 '/2" x 11" photographs of the Property,
with cover sheet dated October 10, 2008 from "John Sepenoski,"and
maps on file with the Town Land Preservation Department. Grantor
and Grantee acknowledge and agree that in the event a controversy
arises with respect to the nature and extent of the Grantor's uses of
the 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
3
"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 that term is presently referenced in §247 of
the General Municipal Law and/or defined in Chapter 70 of the Town
Code of the Town of Southold (the"Town Code" or"Code") and
including the production of crops, livestock and livestock products as
defined in Section 301(2)(a)-(i) of the New York Agriculture and
Markets Law ("Agriculture and Markets Law"), now or as these Laws
and/or Code may be amended. 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.
"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.
1.03 Duration
This Easement shall be a burden upon and 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
Grantor, Grantor's agents, tenants, occupants, heirs, personal
representatives, successors and assigns, and all other individuals and
entities. The word "Grantor"when used herein shall include all of
those persons or entities. Any rights, obligations, and interests herein
granted to Grantor and/or Grantee shall also be deemed granted to
each and every one of its subsequent agents, successors, and assigns,
and the word "Grantor" or"Grantee" when used herein shall include all
of those persons or entities.
ARTICLE TWO
SALE
GRANTOR, for good and valuable consideration, hereby grants,
releases, and conveys to Grantee this Easement, in perpetuity,
together with all rights to enforce it. Grantee hereby accepts this
Easement in perpetuity, and undertakes to enforce it against Grantor.
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts,
uses and practices shall be prohibited forever upon or within the
Property:
3.01 Structures
4
No structures may be erected or constructed on the Property
except as permitted by the Town Land Preservation Committee ("Land
Preservation Committee") and other applicable provisions of the Town
Code and 4.06 of this Easement. For purposes of this Easement,
"structure" shall be defined as anything constructed or erected on or
under the ground or upon another structure or building, including
walkways. Structures shall not include trellis, fences, posts and wiring,
farm roads or farm irrigation systems, nursery mats, or fencing used
in connection with bonafide agricultural production, including without
limitation fencing to keep out predator animals. Approvals for these
shall be as required by applicable provisions of the Town Code.
3.02 Excavation and Removal of Materials; Mining
The excavating or filling of the Property, except as may be
necessary to construct and maintain permitted structures and
improvements on the Property or in connection with necessary
drainage or soil conservation programs, shall be prohibited, without
the prior written consent of Grantee. Mineral exploitation, and
extraction by any method, surface or subsurface, is prohibited. The
removal of topsoil, sand, or other materials shall not take place, nor
shall the topography of the Property be changed except to construct
and maintain the permitted structures and improvements on the
Property and for purposes of erosion control and soil management, or
in connection with normal agricultural/horticultural activities, without
the prior written consent of Grantee.
3.03 Subdivision
Except as provided herein, the Property may not be further
subdivided pursuant to Town Law Sections 265, 276 or 277 or Section
335 of the New York Real Property Law, as they may be amended, or
any other applicable State or local law. The Property may be
subdivided, provided that each resulting lot shall contain at least 10
acres of agricultural lands protected by a development rights
easement or other instrument, subject to approval from the Land
Preservation Committee and to such further approvals as may be
required by the Town Code and other applicable laws.
"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. Notwithstanding this provision, the
underlying fee interest may be divided by conveyance of parts thereof
to heirs or next of kin by will or operation of law.
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, 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
5
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, or (d) with the consent
of the Grantor, to announce Grantee's easement. Signs are subject to
regulatory requirements of the Town.
3.06 Utilities
The creation or placement of overhead utility transmission lines,
utility poles, wires, pipes, wells or drainage systems ("utilities") on the
Property to service structures approved pursuant to Section 4.06 shall
be prohibited without the prior written consent of the Grantee.
Overhead 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. The
Property may not be used for the creation or placement of utilities to
service any other properties.
3.07 Prohibited Uses
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, and including the production of crops,
livestock and livestock products as defined in Section 301(2)(a)-(i) of
the Agriculture and Markets Law, now or as such Laws and/or Code
may be amended, shall not be considered a commercial use. Uses,
improvements and activities permitted by the Town Code now or in the
future on agricultural lands protected by a development rights
easement or other instrument, including but not limited to farmstands,
shall not be considered a commercial use. No improvements, uses or
activities inconsistent with current or future agricultural production
shall be permitted on the Property. Any improvements, structures,
uses or activities permitted by this Easement shall not be deemed to
be inconsistent with agricultural production as defined above and shall
not be prohibited.
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 in accordance with sound
agricultural management practices.
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
management practices and in order to control flooding or soil erosion
on the Property.
6
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. Grantor
hereby grants 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 in Section 4.06, and the
parties agree that any other such development rights shall be
terminated and extinguished and may not be used or transferred to
any other parcels.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain
all other rights of ownership in the Property, some of which are more
particularly described in this ARTICLE FOUR.
4.02 Possession
Grantor shall continue to have the right to exclusive possession
of the Property.
4.03 Use
Grantor 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. Grantor
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, including, but not limited to farmstands and for
educational or training programs related to agricultural production or
activities.
Grantor shall also have the right to use the Property for
traditional recreational uses, including but not limited to trapping,
pursuing and shooting of game, skeet shooting, bird watching, sleigh
riding, and the use of personal all terrain vehicles, provided such
recreational uses are conducted for the personal enjoyment of Grantor,
are compatible with farming, and are otherwise consistent with and do
not derogate from or defeat the Purpose of this Easement or other
applicable law. These uses shall not be offered or provided for
commercial purposes, including the commercial gain of Grantor or
others.
4.04 Landscaping Activities
Grantor shall have the right to continue the current and/or
customary modes of landscaping, pruning and grounds maintenance
7
on the Property, as evidenced by the documentation set forth in
Section 0.05. Grantor shall have the right to remove or restore trees,
shrubs, or other vegetation when dead, diseased, decayed or damaged
or interfering with agricultural production, to thin and prune trees to
maintain or improve the appearance of the Property, and to mow the
Property.
4.05 Agricultural Production and Activities
Grantor shall have the right to engage in all types of agricultural
production as the term is referenced in Section 247 of the General
Municipal Law and/or defined in Chapter 70 of the Town Code, and
including the production of crops, livestock and livestock products as
defined in Section 301(2)(a)-(i) of the Agriculture and Markets Law,
now or as such Laws and/or Code may be amended. 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.
Grantor may offer"U-Pick" operations and/or the use of a corn
maze to the general public, provided that such activities are conducted
in conjunction with seasonal harvests, do not interfere with agricultural
production and are otherwise consistent with and do not derogate from
or defeat the Purpose of this Easement or other applicable laws.
Notwithstanding the definition of agricultural production in
Chapter 70 of the Town Code or any successor chapter, structures
shall be prohibited except as set forth in Section 4.06 herein and as
permitted by the Town Code now or in the future on agricultural lands
protected by a development rights easement or other instrument,
including but not limited to farmstands.
4.06 Structures and Improvements
A. Allowable Improvements. Grantor shall have the right to
erect and maintain the following improvements on the Property, as
may be permitted by the Town Code now or as same may be amended
and subject to the approval of the Town 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
for the use and enjoyment of the Property;
(ii) New construction, including drainage improvement
structures, provided such structures are necessary
for or accessory to agricultural production;
(iii) Right of way of undetermined width along the entire
western boundary of the Property. If the owner of
the adjacent parcel, designated as SCTM #1000-54-
3-5, makes an application to the Town and the use
of the right of way is required by the Town or any
Town agencies in connection with the use of the
adjacent parcel, then the right of way shall not
exceed 25' in width, and the improved portion of the
right of way shall not exceed 16' in width;
8
(iv) Renovation, maintenance and repairs of any existing
structures or structures built or permitted pursuant
to this Section 4.06.
B. Conditions. Any allowable improvements shall protect
prime agricultural soils, agricultural production, open space and scenic
vistas, and otherwise be consistent with the Purpose of this Easement.
C. Environmental Sensitivity During Construction. The use and
location of any improvement permitted hereunder shall be consistent
with the purposes intended herein, and construction of any such
improvement shall minimize disturbances to the environment. Grantor
shall employ erosion and sediment control measures to mitigate any
storm water runoff, including but not limited to minimal removal of
vegetation, minimal movement of earth and minimal clearance of
access routes for construction vehicles.
D. Replacement of Improvements. In the event of damage
resulting from casualty loss to an extent which renders repair of any
existing improvements or improvements built or permitted pursuant to
this Section 4.06 impractical, erection of a structure of comparable
size, use, and general design to the damaged structure shall be
permitted in kind and within the same general location subject to the
review and written approval of Grantee, pursuant to applicable
provisions of the Town Code.
4.07 Notice
Grantor shall notify Grantee, in writing, before the construction
of any permanent or temporary structures as permitted in Section
4.06 herein and shall file all necessary applications and obtain all
necessary approvals that may be required by this Easement or by the
Town Code, and shall provide documentation as may be required for
such applications.
4.08 Alienability
Grantor shall have the right to convey, mortgage or lease all of
its remaining interest in the Property, but only subject to this
Easement. Grantor 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 Grantor from
further restricting the use, improvements or structures on the
Property. Any such further restrictions shall be consistent with and in
furtherance of the general intent and Purpose of this Easement as set
forth in Section 0.03.
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ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments
and other governmental or municipal charges, which may become a
lien on the Property, including any taxes or levies imposed to make
those payments subject, however, to Grantor's right to grieve or
contest such assessment. The failure of Grantor to pay all such taxes,
levies and assessments and other governmental or municipal charges
shall not cause an alienation of any rights or interests acquired herein
by Grantee.
5.02 Indemnification
Grantor 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, except those
arising solely from Grantee's negligence, arising from injury due to the
physical maintenance or condition of the Property caused by Grantor's
actions or inactions, or from any taxes, levies or assessments upon it
or resulting from this Easement, all of which shall be considered
Grantor's obligations.
5.03 Third Party Claims
Grantor 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, except those due solely to the acts
of the Grantee, its officers, employees, agents, or independent
contractors; 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.
5.04 Grounds Maintenance Requirement
A. If Grantor leaves the Property open and does not engage in
agricultural production for two (2) consecutive years, then Grantor
shall implement a Natural Resources Conservation Plan (the "Plan")
approved by Grantee to maintain or restore the Property to the
condition in which it existed on the date of this Easement, as
evidenced by the documentation referred to in Section 0.05, in order
to protect the environmental, natural, scenic and agricultural values of
the Property.
B. Grantor shall remove all items marked "2" on photographs
contained in the Baseline Documentation and submitted to the Town in
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October, 2008 (Section 0.05) within 5 years from the date of this
Easement. All agricultural vehicles and/or agricultural equipment that
can no longer be used for their intended purposes (spare parts and
agricultural production, respectively) after the date of this Easement
shall be removed from the Property.
C. Grantor shall maintain a schedule of all items removed from
the Property and referenced in Para. 5.0413 above and provide proof of
the removal and/or the disposal thereof to the Town upon request.
D. In the event Grantor fails to comply with the provisions of
this Section 4.06 after reasonable notice is given to Grantor by
Grantee, then, in addition to all other remedies set forth herein,
Grantee or its agents are hereby authorized to enter upon the Property
to satisfy Grantor's obligations, including but not limited to
implementation of the Plan and/or removal of vehicles and equipment,
and to recover the costs of such action from Grantor, as provided in
Section 6.03.
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 Grantor, and in a manner that
will not interfere with Grantor's quiet use and enjoyment of the
Property, for the purpose of inspection to determine whether this
Easement and its purposes 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 Maintenance
Grantee shall have the right to require the Grantor to maintain
the Property in the condition required by this Easement and to enforce
this right by any action or proceeding that Grantee may reasonably
deem necessary. However, Grantor shall not be liable for any changes
to the Property resulting from causes beyond the Grantor's control,
including, without limitation, fire, flood, storm, earth movement, wind,
weather or from any prudent action taken by the Grantor 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
Grantor acknowledges and agrees that Grantee's remedies at
law for any violation of this Easement may be inadequate. Therefore,
in addition to, and not as a limitation of, any other rights of Grantee
hereunder at law or in equity, in the event any breach, default or
violation of any term, provision, covenant or obligation on Grantor's
part to be observed or performed pursuant to this Easement is not
cured by Grantor within ten (10) days notice thereof by Grantee
(which notice requirement is expressly waived by Grantor with respect
to any such breach, default or violation which, in Grantee's reasonable
judgment, requires immediate action to preserve and protect any of
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the agricultural values or otherwise to further the purposes of this
Easement), Grantee shall have the right at Grantor's sole cost and
expense and at Grantee's election,
(i) To institute a suit to enjoin or cure such breach, default or
violation by temporary and/or permanent injunction,
(ii) To enter upon the 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 seek or enforce such other legal and/or equitable relief
or remedies as Grantee deems necessary or desirable to
ensure compliance with the terms, conditions, covenants,
obligations and purposes of this Easement; provided,
however, that any failure, delay or election to so act by
Grantee shall not be deemed to be a waiver or a forfeiture
of any right or available remedy on Grantee's part with
respect to such breach, default, or violation or with respect
to any other breach, default or violation of any term,
condition, covenant or obligation under this Easement.
The cure period in this Section 6.03 may be extended for a reasonable
time by Grantee if such restoration cannot reasonably accomplished
within ten (10) days.
6.04 Notice
All notices required by this Easement must be written. Notices
shall be delivered by hand or registered mail, return receipt requested,
or by certified mail, with sufficient prepaid postage affixed and with
return receipts requested. Mailed notice to Grantor shall be addressed
to Grantor's address as recited herein, or to such other address as
Grantor may designate by notice in accordance with this Section 6.04.
Mailed notice to Grantee shall be addressed to its principal office,
recited herein, marked to the attention of the Supervisor and the Town
Attorney, or to such other address as Grantee may designate by notice
in accordance with this Section 6.04. Notice shall be deemed given
and received as of the date of its manual delivery or three (3) business
days after the date of its mailing.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this ARTICLE
SIX shall not have the effect of waiving or limiting any other remedy or
relief, and the failure to exercise or 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/Condemnation
At the mutual request of Grantor and Grantee, a court with
jurisdiction may, if it determines that conditions surrounding the
Property have changed so much that it becomes impossible to fulfill
the Purpose of this Easement described in Section 0.03, extinguish or
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modify this Easement in accordance with applicable law. In that case,
the mere cessation of farming on the Property shall not be construed
to be grounds for extinguishment of this Easement.
If at any time the Property or any portion thereof shall be taken
or condemned by eminent domain, by the 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. In such event, the Grantor, his successors or assigns, shall
not be required to pay any penalties, but the value of the Property
shall reflect the limitations of this Easement. Any condemnation award
payable to the Grantor shall be in proportion to the value attributable
to the residual agricultural and/or open space value of the Property
and if the condemnation is undertaken by an entity other than the
Grantee, then the remaining portion of the condemnation award shall
be payable to the Grantee in proportion to the value attributable to the
development rights transferred hereby.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understandinq
This Easement contains the entire understanding between the
parties concerning its subject matter. Any prior agreement between
the parties concerning its subject matter shall be merged into this
Easement and superseded by it.
7.02 Amendment
This easement may be amended only with the written consent of
Grantee and current Grantor and in accordance with any applicable
State and local law. Any such amendment shall be consistent with the
Town Code and any regulations promulgated thereunder and with the
Purpose of this Easement as set forth in Section 0.03 and shall be duly
recorded.
This Easement is made with the intention that it shall qualify as
a Conservation Easement in perpetuity under Internal Revenue Code
Section 170(h). The parties agree to amend the provisions of this
Easement if such amendment shall be necessary, to entitle Grantor to
meet the requirements of Section 170(h). Any such amendment shall
apply retroactively in the same manner as if such amendment or
amendments had been set forth herein.
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
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interests which were acquired by the Town prior to any such
amendment.
7.04 Severability
Any provision of this Easement restricting Grantor's activities,
which is determined to be invalid or unenforceable by a court, shall not
be invalidated. Instead, that provision shall be reduced or limited to
whatever extent that court determines will make it enforceable and
effective. Any other provision of this Easement that is determined to
be invalid or unenforceable by a court shall be severed from the other
provisions, which shall remain enforceable and effective.
7.05 Governing Law
New York Law applicable to deeds to and easements on land
located within 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 purposes of this Easement as
intended by the parties. The parties intend that this Easement, which
is by nature and character primarily negative in that Grantor has
restricted and limited his right to use the Property, except as otherwise
recited herein, be construed at all times and by all parties to effectuate
its purposes.
7.07 Public Access
Nothing contained in this Easement grants, nor shall it be
interpreted to grant, to the public, any right to enter upon the
Property, or to use images of the property. Grantee may use images
of the Property for non-commercial reporting of this Easement.
7.08 Warranties
The warranties and representations made by the parties in this
Easement shall survive its execution.
7.09 Recording
Grantee shall record this Easement in the land records of the
office of the Clerk of the County of Suffolk, State of New York.
7.10 Headings
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The headings, titles and subtitles herein have been inserted
solely for convenient reference, and shall be ignored in its
construction.
IN WITNESS WHEREOF, Grantor has executed and delivered and
Grantee has accepted and received this Deed of Easement on the day
and year set forth above.
AC KNOWEDGED AND CC TED:
JOP A. SEPENOSKI, Grantor
PATRICIA A. SEPE OSKI, Grantor
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUTH LD, Grantee
,�/
BY:
Scott A. Russell
Supervisor
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
On this/3 day of November in the year 2008 before me, the undersigned,
personally appeared John A. Sepenoski personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is(are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of which
the i ividual( cted, exe d the instrument. STEPHEN P SPANBURGH
�— Notary Public-State of New York
No.01SP4906864
Notary Public Qualified in Suffolk county
My Commission Expires Oct. 2009
On this. /3 dayb!Nember inthe year 2008 before me, the undersigned,
personally app ared Pa . Sepenoski personally known to me or proved to me
on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of which
thc-hidwdual the instrument.
Notary Public STEPHEN P SPANBURGH
Notary Public-State of New York
No.01 SP4906864
STATE OF NEW ORK ) Qualified in Suffolk County
COUNTY OF S FOLK ) SS: My Commission Expires Oct. 2009
On this/3 day of November in the year 2008 before me, the undersigned,
personally appeared Scott A. Russell, personally known to me or proved to me on
the basis of.satisfactory evidence to be the individual(s) whose name(s) is (are)
15
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of which
ividual cacti ed the instrument.
- _
Notary Pub
SpUP- ublic
P tANSUR%f
State of New York
QualNea�S4906864
MY Commission SOON County
Expires Oct.5,2009
r
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