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HomeMy WebLinkAboutWhite to Peconic Land Trust . b O DEED OF CONSERVATION EASEMENT THIS DEED OF CONSERVATION EASEMENT, is made on the 19th day of January, 1998 . The parties are Benjamin T. White, as Trustee of The John Brewster McCall Trust ( "Grantor" ) residing at 275 Spring Street, Atlanta, Georgia 30319, and the Peconic Land Trust, Inc . , a not-for-profit New York Corporation, having a principal office at 296 Hampton Road (Post Office Box 2088) , Southampton, New York 11968 (herein called "Grantee" ) . INTRODUCTION WHEREAS, the Grantor is the owner in fee simple of certain real property located in the Town of Southold, Suffolk County, New York, hereinafter more fully described in Schedule A attached hereto, further described as Suffolk County Tax Map Parcel Number 1000-116-1-3 . 1, and hereinafter referred to as the "Property" ; and WHEREAS, the Property consists of 15 acres of woodlands located in the k-80 Zoning District of The Town of Southold; and WHEREAS, the Grantor acquired the Property as part of a joint public/private conservation effort which included the Grantor' s 15 acre Property, a 51-acre wooded parcel immediately adjacent to the north of the Grantor' s Property and a 37-acre restricted agricultural parcel immediately adjacent to the west of the Property owned by Russell C. McCall and Carolyn R. McCall; and WHEREAS, the Grantor wishes to grant a Conservation Easement on the '15-acre parcel of Property so that the Property shall largely remain in its archaeologically valuable, undeveloped and undisturbed state and may be developed with no more than one single family residence and appurtenant structures and improvements and agricultural support structures; and WHEREAS, the Property, in its present open space condition has substantial and significant value as an archaeologically important resource by reason of the fact that it adjoins an area identified as Fort Corchaug; and WHEREAS, a portion of the Grantor' s property is part of a 25 acre area that was nominated as a National Landmark as defined by the United States Department of the Interior and is on record with the United States Department of the Interior, National Park Service, and is in the National Register of Historic Places; and WHEREAS, the Grantor, in recognition of the archaeological value, open space and natural value of the Property, desires to restrict the square footage of the Property to be developed to an area not to exceed 80, 000 square feet and access areas (hereinafter referred to as the "Development Area" ) , and to preserve the remaining area (the "Non-Development Area") by limiting the permitted uses thereon: and WHEREAS, it is the policy of the Town of Southold, as articulated in the Town' s Master Plan of 1973 , amended in 1986 and 1989 as adopted by the Town Board, Town of Southold code, Section 272 a of the 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 1 WHEREAS, the Property in its present open space condition, has substantial and significant value as a scenic, open space and natural resource by reason of the fact that it has not been subject to any development . NOW, THEREFORE : 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 qualified not-for-profit charitable organization under Section 170 (h) (3) of the Internal Revenue Code of 1986, and any amendatory or supplemental legislation (herein called "the Code" ) , and incorporated under the Not-For-Profit Corporation Law of New York State for the purpose 'of conserving and preserving the unique environmental, agricultural, scenic and open space values of rural lands located in Suffolk County of Long Island. 0 . 03 Purpose The parties recognize the environmental, scenic, open space and woodland values of the Property and have the common purpose of preserving these values . This Deed is intended to convey a Conservation Easement on the Property by Grantor to Grantee, exclusively for the purpose of preserving to the extent set forth herein its open space character in perpetuity for environmental, scenic, and natural values, by preventing the use of 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 Government 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 enactment of Environmental Conservation Law, Article 49-0301, et seq. and 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 Grantee' s Warranty Grantee warrants and represents that it possesses the intent and ability to enforce the terms of this Conservation Easement on the Property, as determined by its Board of Directors, at a duly constituted meeting of that Board on May 27, 1997, and that the Property satisfies the 'criteria adopted by Grantee relating to the quality and character- istics of open land that should be protected and maintained as open land. 0 . 06 Documentation The Grantee acknowledges by acceptance of this Easement that the historical and 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, wildlife, watershed, scenic, and aesthetic resources and otherwise to aid in identifying and documenting the Property' s open space values as of the date hereof, to assist the Grantor with monitoring the development and use of the Property and ensuring compliance 2 with the terms hereof, the Grantee has prepared, with the Grantor' s full 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 by Young and Young Surveyors dated May 27, 1997, an aerial photograph, photographs of the Property, a topographical map, a description and site plan of existing land uses, features, and structures, if any, and an acknowledgment page signed by the Grantor and the Grantee which verifies that the Baseline Documentation report accurately represents the condition of the Property at the time of the easement . The Grantor and Grantee acknowledge and agree that in the event a controversy arises with respect to the nature and extent of the Grantor' s historical and present 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 . 07 Recitation In consideration of the previously recited facts, mutual promises, undertakings and forbearances contained in this Easement, the parties agree upon its provisions, intending to be bound by it . ARTICLE ONE" THE EASEMENT 1 . 01 Type This Deed conveys a Conservation Easement (herein called the "Easement" ) . This Easement shall consist of the covenants, restrictions, rights, terms, and conditions recited in this Deed. Reference to this "Easement" or its "provisions" in this Deed shall include any and all of those covenants, rights, terms and conditions . 1 . 02 Duration This Easement shall be a burden upon and run with the Property in perpetuity. 1 . 03 Effect The covenants, terms, conditions, restrictions and purposes of this Easement shall run with the Property as an incorporeal interest in the Property, and shall bind the successors and assigns of each of the parties respectively. This Easement 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 . Any rights, obligations, and interests herein granted to Grantee shall also be deemed granted to each and every one of its successors, and assigns, and the word "Grantee" when used herein shall include all of those persons or entities . ARTICLE TWO GIFT GRANTOR hereby voluntarily grants, releases and conveys to Grantee, as an absolute gift, 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 and all future owners, tenants, occupants, assigns and possessors of said Property. ARTICLE THREE 3 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 The construction or placement of residential, commercial, industrial or other buildings, structures, or improvements of any kind or nature (including, but not limited to mobile homes) , permanent or temporary, on, over or under the Property except pursuant to Section 4 . 05 hereof . 3 . 02 Excavation and Removal of Materials The excavating, mining or filling of the Property or the removal of topsoil, sand, or other materials, or a change to the topography of the Property except as may be necessary to construct, develop and maintain the single- family residence and appurtenant structures and improvements permitted in the Development Area and allowable non- residential improvements on the Property, to change grade within 50 feet of permitted structures, or otherwise to the extent compatible with the uses permitted by Article 4 , with the prior written consent of the Grantee as to any of such activities within the Non-Development Area. 3 . 03 Subdivision The subdivision or partitioning of the Property without the prior written consent of the Grantee, which shall be granted if that subdivision or partition does not defeat or derogate from the purposes of' this Easement . In no event shall the Property be subdivided to create more than one residential lot as provided in Section 4 . 05 hereof . 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, except for customary and prudent residential and agricultural usage. 3 . 05 Signs The display of signs, billboards, or advertisements on the Property except signs, whose placement, number, and design do not significantly diminish the scenic character of the Property and only for the following purposes : a) to state the name of the Property and the names and addresses of the occupants, b) temporarily to advertise the Property or any portion thereof for sale or rent, c) to post the Property to control unauthorized entry or use, d) to announce the Grantee' s conservation easement, and e) to temporarily advertise the construction contractor at the time the structures are built . 3 . 06 Cutting of Timber The cutting or harvesting of timber on the Non- Development Area except for the following purposes : a) to clear and restore forest cover that has been damaged or disturbed by forces of nature or otherwise, b) to prune and selectively thin trees to create limited vistas in accordance with good forest management practices and the purposes of this Easement, c) to construct and maintain driveways, . e) to construct and maintain the permitted structures and improvements on the Non-Development Area with the prior written consent of the Grantee, and f) to conduct 4 archaeological studies and excavations in accordance with sound archaeological practices . 3 . 07 Landscaping Activities The removal of trees, shrubs, or other vegetation from the Non-Development Area except as provided in Sections 4 . 05, without the prior written consent of the Grantee. 3 . 00 Utilities The creation or placement of overhead utility transmission lines, utility poles, or wires on the Property, or the creation or placement of pipes, wells or drainage and septic systems on the Non-Development Area without the prior written consent of the Grantee . Underground utilities must, to the extent possible, be constructed within 30 feet of the center line of roads or driveways, and may be used solely to service the permitted structures and uses . 3 . 09 Uses The use of the Property for any commercial or industrial purpose, except agricultural uses not otherwise prohibited by this Easement; home occupations permitted by Section 100-31C (2) , of the Southold Town Zoning Code, or other uses with prior written consent of the Grantee. 3 . 10 Drainage The use of the Property for a leaching or sewage disposal field; or the use of the Property for a drainage basin or sump. 3 . 11 Development Rights The use of the acreage of this Property burdened with this Easement for purposes of calculating lot yield on any other property. Grantor hereby retains one (1) development right to the Property for the purpose of constructing a single family residence and other structures and improvements as allowed under Paragraph 4 . 05, and the parties agree that, any remaining development rights shall, for the purposes of determining lot yield 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 this Easement, Grantor shall retain all other customary rights of ownership in the Property, some of which are more particularly described in this ARTICLE FOUR. 4 . 01 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, New York State, and federal law which will not defeat or derogate from the purposes of this Easement . This shall include, without limitation, hiking, boating, hunting, fishing, picnicking, agriculture, camping, and access throughout the Property. 5 4 . 04 Landscaping Activities Grantor shall have the right to continue the historical modes of landscaping, pruning and grounds maintenance on the property. Grantor shall have the right to remove or restore trees, shrubs, or other vegetation when dead, diseased, dangerously decayed or damaged on the Property. 4 . 05 Structures A. Allowable Residential Improvements on the Development Area Grantor shall have the right to construct no more than one (1) single-family residence with appurtenant structures and improvements reasonably related to such residence including, without limitation, driveways, garages, storage sheds, decks, patios, gazebos, lawn and garden areas, septic system and leaching pool, swimming pool, pool house, tennis court, or other family-scale athletic facility, and other accessory structures permitted by applicable zoning regulations . Grantor' s right to construct such single family residence, with appurtenant structures and improvements, shall be limited to an area known as the "Development Area" . The Development Area shall consist of and be limited to (a) an area not to exceed 80, 000 square feet in the aggregate; and (b) the area of any access drives or rights-of-way to service the allowable improvements, including buffer strips on either side of the drive; provided, however, that the width of such access drive and buffer shall not exceed thirty feet and shall, to the extent feasible, be constructed near the edge of the Property or along the existing farm road on the Property; and (3) the 30 foot flag strip running between lands of Williams to New Suffolk Avenue, extending northerly to the northerly line of the Williams property (the "Flag Parcel" ) as more fully described in Schedule 8 herein. The 80, 000 square foot area may be divided into up to three non-contiguous areas . Such residences, structures and improvements shall be constructed, maintained and replaced within the Development Area subject to the terms and conditions of this Easement . B. Allowable Non-Residential Improvements on the Development Area Grantor shall have the right to erect and maintain the following non-residential improvements on the Development Area, as determined by the parties, which are consistent with the uses as permitted in Sections 4 . 05 hereof : (i) Agricultural Structures, including but not limited to barns, sheds, stables, and silos as are used in conjunction with the adjoining 37 acre agricultural parcel . -and (ii) Unpaved Access Drives, which may be constructed of gravel or other permeable material, and (iii) Fences, placed to the extent possible such that they do not significantly block or detract from the scenic view; : and (iv) Underground facilities normally used in connection with supplying utilities, septic systems, leaching fields, and controlling stormwater runoff from the improvements permitted under the terms of this Basement . Any underground utilities must, to the extent possible, be constructed within 30 feet of the center line of roads or driveways, and may be used solely to service the permitted structures and uses; and 6 (v) Walkways; and (vi) One dock, ramp, and modest boat-related structure; and (vii) Structures necessary to control or prevent shoreline erosion. C. Allowable Structures and Improvements on the Non- Development Area Grantor shall have the right to erect and maintain the following non-residential improvements on the Non- Development Area which are consistent with the terms and purposes of this Easement . All structures and improvements require the prior written consent of the Grantee : (i) Unpaved Access Drives, which may be constructed of gravel or other permeable material, to provide access to the improvements allowed pursuant to Section 4 . 05 ; and otherwise throughout the Non- Development Area; and (ii) Fences, placed such that they do not significantly block or detract from the scenic view and whose use does not significantly interfere with wildlife use of the Property; and (iii) Underground facilities normally used in connection with supplying utilities, septic systems, leaching fields, and controlling stormwater runoff from the improvements permitted under the terms of this Easement . Any underground utilities must, to the extent possible, be constructed within 30 feet of the center line of roads or driveways, and may be used solely to service the permitted structures and uses; and (iv) Unpaved walking and hiking trails, cleared in a manner sensitive to the environmental and archaeological resources; and (v) Non-permanent storage structures and other temporary sheds or tents to be used solely in connection with archaeological activities that may take place on the Property that are pursuant to and in conformance with reasonable archaeological practices . Such structures shall not have concrete foundations . D. Replacement of Structures In-Kind In the event of damage resulting from casualty loss to an extent rendering repair of any existing improvement impractical, erection of a structure of comparable size, bulk, use, and general design to the damaged structure shall be permitted within the same location. Grantor shall notify Grantee of such occurrence and construction in the Non- Development Area. E. Environmental Sensitivity During Construction The use and location of such improvements shall be consistent with the conservation purposes intended herein, and constructed by methods which are attentive to minimizing disturbances to the environment and to any archaeological resources on Property, including but not limited to minimal removal of vegetation, minimal movement of earth and minimal clearance of access routes for construction vehicles; provided same does not prevent or render financially impractical or onerous the permitted structures, uses and improvements . 4 . 06 Flag Parcel Grantor specifically reserves the right to. convey the Flag Parcel, described in Schedule B herein, to the Owner of any property which adjoins all or part of the Flag Parcel, for merger into said property, free of the terms of this Easement, without necessity of further instrument . Grantee agrees to execute, within 30 days of written request, any document necessary to effectuate the terms of this provision. 4 . 07 Notice and Procedures for Inspection of Site Disturbance Grantor shall notify Grantee, in writing, of the location of the Development Area prior to construction or improvement therein; and before taking any action or before exercising any reserved right with respect to the Non- Development Area which specifically requires Grantee' s consent or which could adversely affect the conservation purposes which are the subject of this Easement . Grantor shall provide Grantee with relevant documentation including information on the need for and use of such structures, the location of the Development Area and plans of any proposed structures which are subject to Grantee' s approval . Such approval or disapproval with any comments of Grantee shall be given to Grantor within 60 days after such information is submitted to Grantee. As to any matter requiring Grantee' s approval or consent, same shall not be unreasonably withheld, delayed, or denied if the proposed activity is within the terms and spirit of this Agreement, and shall be granted if same does not defeat or derogate from the purposes of this Easement . Should approval be granted by Grantee for any permanent or temporary structure or use requiring Grantee' s consent, Grantor hereby covenants and agrees to the following additional covenants, terms and restrictions to the Grantee to be exercised in the Grantee' s reasonable discretion: (a) Grantor hereby covenants and agrees to provide Grantee with a good faith estimate of the anticipated date for commencement of on site construction, demolition or other activity. Grantor hereby covenants and agrees that Grantee, its agents and assigns shall be given an irrevocable license to enter onto the specific area of the Non-Development area where the activity is to occur during normal business hours at a time agreeable to the Grantor to inspect such on site activities to insure compliance with the purposes and terms of this Easement . (b) Grantor hereby covenants and agrees that in the course of exercising any reserved right on the Property, a significant archaeological resource 'is discovered, Grantor will use best efforts not to disturb the artifact prior to the procedure set forth herein and will take steps to attempt to preserve the artifact in a reasonable fashion, and will notify the Grantee of such discovery. Grantor shall then submit or request Grantee to submit a proposed procedure to protect the archaeological resource through removal (if feasible) , documentation by photographic or other appropriate means, and to transfer the artifact to a qua jfied not-for-profit * . who will be charged with Bolding the artifacts for educational and cultural purposes if same can be identified after reasonable diligence . Grantee shall then be permitted to comment on the proposed procedure within 30 days of receipt of such notice . - Grantor agrees to consult with Grantee as to any suggested alternative procedures and comments that may be made, and to incorporate the same to the extent that is feasible and * organization 8 reasonable . Nothing herein shall require Grantor to take any steps within the, Development Area which would render permitted activities, structures or improvements impossible or financially impractical or onerous . 4 . 08 Alienability Grantor shall have the right to convey all or any part 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 names and mailing addresses of all Grantees, -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 forth 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. 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 . If Grantor fails to make such payments, Grantee is authorized to make such payments (but shall have no obligation to do so) upon sixty (60) days prior written notice to Grantor, according to any bill, statement or estimate procured from the appropriate public office without inquiry into the accuracy thereof. That payment, if made by Grantee, shall become a lien on the Property of the same priority as the item if not paid would have become, and shall bear interest until paid by Grantor at two percentage points over the prime rate of interest from time to time by Citibank, N.A. This provision shall not apply if Grantor has not made payment while actively pursuing a tax certiorari proceeding, so long as such non- payment does not result in a non-redeemable loss of title . 5 . 02 Indemnification Grantor shall indemnify and hold . Grantee harmless for any liability, costs, reasonable attorneys' L fees, judgments or reasonable expenses to Grantee or any of its officers, employees, agents or independent contractors arising from the physical maintenance or condition of the Property 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, reasonable attorneys' fees, judgments or reasonable expenses to Grantee or any of its officers, employees, agents or independent contractors resulting: a) from injury to persons or damages to Property arising from any activity on the Property, except those due 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 9 those matters arising from the acts of Grantee, its officers, employees, agents, or independent contractors . ARTICLE SIX GRANTEE' S RIGHTS 6 . 01 Entry and Inspection Grantee shall have the right to enter upon the Non- Development Area at reasonable times agreeable to Grantor, upon reasonable prior written notice to Grantor, for good cause, and in ,a manner that will not interfere with the 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 purpose, except as provided in Section 6 . 03 and 4 . 07, nor to permit access upon the Property by the public, nor shall the Grantee have the right to enter any structure . : 6 . 02 Restoration Grantee shall have the right to require the Grantor to restore the Property to the condition required by this Easement to the extent same is feasible or possible, and to enforce this right by any action or proceeding that the Grantee may reasonably deem necessary. However, it is understood and agreed by the parties hereto that the 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, and earth movement, governmental authority or regulation, bona fide conservation program, or from any prudent action taken by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes . G . 03 Enforcement Rights of Grantee Grantor acknowledges and agrees that Grantee' s remedies at law for any violation of this Easement are inadequate. Therefore, in addition to, and not in 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 thirty (30) 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 prevent irreparable injury to any protected aspects of the Property under 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, -or (ii) to seek to 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 . Grantor 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 6 . 03, if Grantee prevails by order not 10 subject to appeal . Grantee agrees to reimburse Grantor for all reasonable attorney' s fees, court costs, and other expenses incurred in connection with any proceedings hereunder not brought or pursued in good faith by Grantee in which Grantor prevails by order not subject to appeal . 6 . 04 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 have the effect of waiving or limiting the use of any other remedy or relief or the use of such other remedy or relief at any other time. 6 . 05 Assignabilitv Grantee shall have the right to assign any and all of its rights and responsibilities under this Easement, and any and all of its rights, title and interest in and to this Easement only to a qualified organization (herein called "the Assignee" ) . As used herein: the term "qualified organization" means a not-for-profit corporation, or a governmental unit or agency, which is qualified to receive such interests pursuant to Article 49 of the New York Environmental Conservation Law, and is a qualified organization within the meaning of Section 170 (h) (3) of the Code, which is organized or operated primarily or substantially for one of the conservation purposes specified in Section 170 (h) (4) (A) of the Code. Any assignment by Grantee or Grantee' s successors must require the Assignee or Assignee' s successors to carry out the purposes of this Easement . The Assignee and its successors and assigns shall have the same right of assignment, subject to compliance with the provisions of this Subsection. 6 . 06 Succession If at any time Grantee or any successor or assignee is unable to enforce this Easement fully or fails to do so, or if Grantee or any successor or assignee ceases to exist or ceases to be a qualified organization under I .R. C. Section 170 (h) (3) then this Easement shall be vested in such qualified corporation, body or agency as defined and upon the conditions contained in Section 6 . 05 as the Grantee shall designate . If, on the occurrence of any of these events, Grantee or any successor or assignee fails to assign all of its rights and responsibilities under this Easement and all of its rights, title and interest in and to this Easement to a qualified organization, then the rights and responsibilities under this Easement shall become vested in the Town of Southold or if such Town will not accept this easement, then another qualified organization, in accordance with a cy pres proceeding brought in any court of competent jurisdiction. 6 . 07 Extinguishment This easement gives rise to a property right and interest immediately vested in the Grantee . For the purposes of this Section 6 . 07, the fair market value of such right and interest shall be equal to the difference, as of the date hereof, between the fair market value of the Property subject to this Easement and the fair market value of the Property if unencumbered hereby (such difference, divided by the fair market value of the Property unencumbered by this Easement, is hereinafter referred to as the "Proportionate Share" ) . In the event a material unforeseeable change in the conditions surrounding the Property makes impossible its continued use for the purposes contemplated hereby, resulting in an extinguishment of this Easement or any material term or provision hereof by a 11 judicial proceeding; then upon a subsequent transfer of title to the Property by sale, gift, devise, exchange, taking by eminent domain or by purchase in lieu of a taking, Grantor shall pay to Grantee an amount equal to the greater of (x) the consideration paid by Grantee to Grantor for this Easement or (y) the Proportionate Share of the proceeds of such transfer. If all or any part of the Property is taken under the power of eminent domain by public, corporate, or other authority, or otherwise acquired by such authority through a purchase in lieu of a taking, so as to abrogate the restrictions imposed by this Easement or otherwise effectively to frustrate the purpose hereof, Grantor and Grantee shall join in appropriate proceedings at the time of such taking to recover the full value of the interests in the Property subject to the taking and all incidental or direct damages resulting from the taking. All expenses reasonably incurred by the parties to this Easement in connection with such taking shall be paid out of the recovered proceeds . Grantee shall be entitled to a Proportionate Share of the remaining recovered proceeds . The Grantee shall use such proceeds actually recovered by it in a manner consistent with the purposes of this Easement . The respective rights of Grantor and Grantee set forth in this Section G . 07 shall be in addition to, and not in limitation of, any rights they may have by law with respect to a modification or termination of this Easement by reason of changed conditions or the exercise of powers of eminent domain as aforesaid. 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 . 7 . 02 Amendment This Easement can be terminated or modified only in accordance with the common and statutory law of the State of New York applicable to the termination and modification of easements and covenants running with the land. Grantor and Grantee recognize that circumstances could arise which would justify the modification of certain of the restrictions contained in this Easement . To this end, Grantee and Grantor shall mutually have the right, in their sole discretion, to agree to amendments to this Easement which are not inconsistent with the purposes of this Easement set forth in the introduction hereof; provided, however, that Grantee shall have no right or power to agree to any amendments hereto that would result in this Easement failing to qualify as a valid Conservation Easement under Article 49, Title 3 of the Environmental Conservation Law of the State of New York, as the same may be hereafter amended, any regulation issued pursuant thereto, or Section 170 (h) of the Internal Revenue Code governing "Qualified Conservation Contributions" . 7 . 03 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 12 whatever extent that court determines will make it enforceable and effective. Any other provision of this Easement which is determined to be invalid or unenforceable by a court shall be severed from the other provisions, which shall remain enforceable and effective . 13 7 . 04 Notice All notices required by this Easement must. be written. Notices shall be delivered by registered or certified mail, returx-receipt-requested,--er--by-eerti€ied-mail,- with sufficient prepaid postage affixed and with return receipt 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 7 . 04 . Mailed notice to Grantee shall be addressed to its principal office, recited herein, or to such other address as Grantee may designate by notice in accordance with this Section 7 . 04 . Notice shall be deemed given and received as of the date of first notice of delivery by the U.S. Postal Service . 7 . 05 Governing Law New York law applicable to deeds and conservation easements pertaining to land located within New York shall govern this Easement in all respects, including validity, construction, interpretation, breach, violation and performance. 7 . 0G 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 as intended by Grantor. 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 Grantor. 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 be interpreted to grant, to the public any right- to enter upon the Property. 7 . 08 Warranties The warranties and representation made by the parties in this Easement shall survive its execution. 7 . 09 Recording Grantee shall record this Easement in the land records of the office of the Clerk of the County of Suffolk, State of New York. 7 . 10 Headings The headings, titles and subtitles herein have been inserted solely for convenient reference, and shall be ignored in its construction. 21/mcce3 14 IN 14ITNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted and received this Deed of Conservation Easement on the day and year set forth above. ACKNOWLEDGED AND ACCEPTED THE IIN B WSTER MC ALL TRUST (Grantor) By: Benjami T. White, Trustee ACKNO14LEDGED AND ACCEPTED: PECONIC LAND TRUST (Grantee) By: o v.H. Halsey, President STATE OF NEW YORK: :ss. . COUNTY OF SUFFOLK: On this H9 day of January, 1998, before me personally appeared JOHN v.H. HALSEY, the President of PECONIC LAND TRUST, INC. , 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 as President of Peconic Land Trust, Inc. , and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted executed the instrument and accepted the rights, duties and responsibilities under the foregoing instrument and that he signed his name thereto by the Board of Directors of the said Corporation. Notary Public PATRICIA L. FALLON Notary Public. State of New York STATE OF GEORGIA: No 4950146 . 8. . QualifiPd in Suffolk County COUNTY OF ��L 0 Commission Expires April 24, I QQ9 On this day of January, 1998, before me peronsally came BENJAMIN T. .WHITE, to me known and known to me to be the individual described in and who executed the foregoing instrument, and he duly acknowledge to me that he executed the same. Notar V Public LYNN M191`10E Notary Public„Dekalb County,Georgla My Commission Expires November©,1949 o o 4.'�r LICA,.. COUNT o�°�• SCIIEDULE A The Property 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, bounded and described a follows: BEGINNING at a point on the northerly side of New Suffolk Avenue, said point being the intersection of the easterly line of land now or formerly of Hadley B. Williams with the northerly side of New Suffolk Avenue; RUNNING THENCE from said point of beginning, North 64 degrees 58 minutes 20 seconds West, along the northerly side of New Suffolk Avenue, a distance of 30.40 feet to other lands of Hadley B. Williams; RUNNING THENCE along other lands of Hadley B. Williams, the following four(4) courses and distances: 1) North 15 degrees 50 minutes 40 seconds East, 322.73 feet; 2) North 17 degrees 54 minutes 10 seconds East, 241.63 feet; 3) South 64 degrees 26 minutes 40 seconds West, 380.00 feet; 4) South 13 degrees 39 minutes 20 seconds West, 270.00 feet to the northerly side of New Suffolk Avenue; RUNNING THENCE North 64 degrees 58 minutes 20 seconds West, along the northerly side of New Suffolk Avenue, a distance of 200.45 feet to Lot 2, as designated on Minor Subdivision "Peconic Land Trust"; RUNNING THENCE 11 degrees 44 minutes 34 seconds East, along Lot 2, as designated on Minor Subdivision "Peconic Land Trust", a distance of 998.86 feet to land known and designated as Parcel to be conveyed to the Town of Southold on Minor Subdivision "Peconic Land Trust"; RUNNING THENCE North 84 degrees 00 minutes 04 seconds East, along land known and designated as Parcel to be conveyed to the Town of Southold on Minor Subdivision "Peconic Land Trust", a distance of 833.74 feet to the approximate high Water mark of Downs Creek; RUNNING THENCE along the approximate high water mark of Downs Creek, the following four (4) courses and distances: 1) South 09 degrees 24 minutes 30 seconds East, 91.99 feet; 2) South 03 degrees 31 minutes 17 seconds West, 168.36 feet; 3) South 15 degrees 04 minutes 39 seconds West, 223.31 feet; 4) South 24 degrees 01 minutes 15 seconds West, 145.01 feet to land now or formerly of Hadley B. Williams; RUNNING THENCE along land now or formerly of IIadley B. Williams, the following four (4) courses and distances: 1) South 84 degrees 42 minutes 40 seconds West, 285.24 feet; 2) South 10 degrees 48 minutes 40 seconds West, 99.65 feet; 3) South 17 degrees 54 minutes 10 seconds West, 242.96 feet; 4) South 15 degrees 50 minutes 40 seconds West, 327.04 feet to the northerly side of New Suffolk Avenue and the point or place of BEGINNING.