Loading...
HomeMy WebLinkAboutMcCall to Peconic Land Trust r DEED OF CONSERVATION EASEMENT THIS DEED OF CONSERVATION EASEMENT, is made on the 19th day of January, 1998 . The parties are Russell C. McCall and Carolyn R. McCall ( "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 37. 6 acres 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 .-2, and hereinafter referred to as the "Property" ; and WHEREAS, the Property is located in the R-80 Zoning District of the Town of Southold, which designation, to the extent possible, is intended to prevent the unnecessary loss of those currently open lands which contain prime agricultural soils as outlined in the Town of Southold Code, Section 110-30 ; and WHEREAS, the Grantor wishes to grant a Conservation Easement on the 37 . 6 acre parcel of Property so that 35 . 6 acres of the Property, hereinafter referred to as the Agricultural Area, (more fully described in Schedule B attached hereto) , shall remain in an open, undeveloped and scenic state and be available for agricultural purposes, and the remaining 80 , 000 square feet of the Property, hereinafter referred to as the Development Area (more fully described in Schedule C attached hereto) shall be restricted to the placement of agricultural structures, including, but not limited to, a retail winery or other agricultural operation; and WHEREAS, the aforementioned 37 . 6 Agricultural Area is subject to a deed dated July 30, 1997, recorded on August 7, 1997 in Liber 11845 cp 064, in which the development rights to the Agricultural Area were sold to the County of Suffolk; and WHEREAS, the aforementioned 35 . 8 acre Agricultural Area is actively being farmed in corn, potatoes and other field crops; and WHEREAS, the property contains soils classified as Class I and Class II 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, 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 environ- mentally 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 has approximately 950 feet of road frontage on the Main Road (route 25) , a State Road which offers the public a significant vista of scenic, open farmland; and WHEREAS, the Property, in its present scenic, agricultural and open space condition has substantial and significant value as an asthetic and agricultural resource by reason of the fact that it has not been subject to any extensive development; and WHEREAS, the Grantor and Grantee recognize the value and special character of the region in which the Property is located, and the Grantor and Grantee have, in common, the purpose of objective of protecting and conserving the present state and inherent, tangible and intangible values of the Agricultural Area as an aesthetic, natural, scenic and agricultural resource; and WHEREAS, the Grantee has determined it to be desirable and beneficial and has requested the Grantor, for itself and its successors and assigns, to grant a Conservation Easement to the Grantee in order to restrict the further development of the Property while permitting compatible uses thereof; 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 agricultural 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, agricultural 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 and agricultural 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 . 0G 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 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 Propert=y, 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 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 commercial, industrial or other buildings, structures, or improvements of any kind or nature (including, but not limited to mobile home's) , permanent or temporary, on, over or under the Property except pursuant to Article 4 hereof . Structures and improvements, including, but not limited to, driveways and structures permitted in Sections 4 . 05 and 4 . 06 hereof, may not be made on, over, or under the Property without the prior written consent of the Grantee, which shall not be unreasonably withheld or delayed and shall be granted if the structure or improvement does not defeat or derogate from the purposes of this Easement . 3 . 02 Excavation and Removal of Materials The excavating, mining or filling of the Agricultural Area, except in connection with agricultural operations on. the Property or as may be necessary to develop and maintain the structures and improvements permitted on the Agricultural Area, with the prior written consent of the Grantee . The removal of topsoil, sand, or other materials shall not take place on the Property nor shall the topography of the Property be changed except to develop and maintain the permitted structures and improvements in the Development Area, to construct and maintain the permitted structures and improvements in the Agricultural Area, and for purposes of agricultural operations, erosion control and soil management . Any such activity, other than those in connection with normal construction in the Development Area, agricultural operations, erosion control and soil management, shall require the written consent of the Grantee. 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 . 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 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, (e) to temporarily advertise the construction contractor at the time the structures are built, and (f) signs related to the agricultural or other permitted uses on the Property. 3 . 06 Cutting of Timber The cutting or harvesting of timber on the Property 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 future driveways or farm roads on the Property, (d) to construct and maintain the permitted structures and improvements on the Property and (e) to expand, improve or control agricultural uses on the Property, with the prior written consent of the Grantee . 3 . 07 Landscaping Activities The removal of trees, shrubs, or other vegetation from the Agricultural Area, except as provided in Sections 4 . 03 , 4 . 04 , 4 . 05 4 . 06, without the prior written consent of the Grantee . 3 . 08 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 Agricultural Area without the prior written consent of the Grantee, except for irrigation used for the agricultural operations on the Property. Underground utilities other than irrigation facilities 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, improvements and uses . 3 . 09 Uses The use of the Property for any commercial or industrial purpose except that agricultural uses expressly permitted in Section 4 . 05 shall not be considered a commercial or industrial use for purposes of this Easement . 3 . 10 Drainage The use of the Property for a leaching or sewage disposal field; or the use of the Agricultural Area for a drainage basin or sump, except in accordance with sound agricultural management practices and in order to control flooding or soil erosion on the Property, or as part of naturally occurring drainage patterns on the Property. 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 grants to Grantee all residential development rights (and any further development rights that may be created through a rezoning of the Property) on the Property, and the parties agree that such 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 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, hunting, picnicking, agricultural operations and production, camping, and access throughout the Property. 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, or related to the agricultural operations on the Property. 4 . 05 Agricultural Activities Grantor shall have the right to engage in farming, including pasturing, grazing, feeding and care of livestock, viticulture and cultivation of crops, and agricultural production and operations as permitted by the Deed conveying the Development Rights on the Agricultural Area to the County of Suffolk, provided that such agricultural activity shall be conducted in accordance with the purposes of this Easement . Normal agricultural fencing and accessory structures, as provided in Section 4 . 06B, and as may be reasonably necessary in connection with agricultural use and the maintenance on the Property of horses, sheep, beef or dairy cattle, or similar domestic livestock, may be constructed, maintained or replaced by Grantor. In addition to the foregoing, Grantor shall have the right to conduct a wholesale and/or retail winery or other wholesale and/or retail agricultural operation, as permitted by local zoning ordinance, on the Development Area. 4 . 06 Structures A. Allowable Non-Residential Improvements on the Development Area Grantor shall have the right to construct and maintain the following non-residential structures and improvements in the Development Area which are necessary to and consistent with the uses permitted in this Easement . M Commercial structures related to the agricultural uses of the property permitted by the zoning code of the Town of Southold together with such access roads, parking areas, loading docks, and related structures necessary to conduct allowable. agricultural and/or winery related businesses . (ii) Agricultural structures to be used as barns, sheds, stables, etc. (iii) Any structures or improvements permitted in the Agricultural Area. B. Allowable Non-Residential Improvements in the Agricultural Area Grantor shall have the right to erect and maintain the following non-residential improvements in the Agricultural Area which are necessary to and consistent with the agricultural uses as permitted in Sections 4 . 03 , 4 . 05 and 4 . 06 hereof : (i) Agricultural structures, including but not limited to barns, sheds, stables and silos as are directly related to the agricultural use of the Agricultural Area, placed to the extent possible so that they do not substantially detract from and adversely affect the scenic value of this Easement, with the prior written consent of the Grantee; and (ii) Access Drives and farm roads; and (iii) Fences, places to the extent possible so that they do not block or detract from the scenic view, with the prior written consent of the Grantee; 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 Paragraph A and B hereof . 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 (v) Vineyard, orchard, nursery or fruit posts, trellises and wires . (vi) Irrigation structures, over, on and underground, including pumps, motors, motorhousings, pipes, and connections, and structures for the provision of fuel therefor, constructed in accordance with regulatory requirements . 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 subject to the review and written approval of Grantee. E. Environmental Sensitivity During Construction The use and location of such improvements shall be consistent with the agricultural and conservation purposes intended herein, and constructed by methods which are attentive to minimizing disturbances to the environment, 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 interfere with the agricultural operations on the Property, nor prevent or render financially impractical or onerous the permitted structures, uses and improvements . 4 . 07 Notice As to any matter requiring Grantee' s consent or approval, Grantor shall notify Grantee, in writing, before taking any action or before exercising any such reserved right with respect to the Property 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, and sketches or 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, and shall be granted if same is within the terms and spirit of this Agreement or does not defeat or derogate from the purposes of this Easement . 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 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 a 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' 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 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 Agricultural 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 , nor to permit access upon the Property by the public, nor shall 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 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 or agricultural 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 . 6 . 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 subject to appeal . Grantee agrees to reimburse Grantor for all reasonable attorney' s fees 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 Assignability 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 cofipetent jurisdiction. 6 . 07 Extinguishment This easement gives rise to a property right and interest immediately vested in the Grantee . For 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 of the Property if unencumbered hereby (such difference, conditions surrounding the Property makes impossible its divided by the fair market value of the Property continued use for the purposes contemplated hereby, unencumbered by this Easement, is hereinafter referred to as resulting in an extinguishment of this Easement or any material term or provision hereof by a 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 an equitable 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 6 . 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 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 . 7 . 04 Notice All notices required by this Easement must be written. Notices shall be delivered by registered or certified mail, return receipt requested, with sufficient prepaid postage affixed. 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 1 . 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. 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 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/ageasemt IN 14ITNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted and received this Easement on the day and year set forth above. ACKNOWLEDGED•'AND ACCEPTED By: f Ru e. 1 C. MCC a (G rotor) By: Car y c ll Grantor) ACKNO ED AND ACCEPTED: PECONIC LAND TRUST (Grantee) By: v ►a h v.H. Hals f, President STATE OF NEW YORK: :ss. . COUNTY OF SUFFOLK: On this IM 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. n `p Notary Public PATRICIA L. FALLON Notary Public, State of New York STATE OF NEW YORK: No 4950146 :ss. : Qualified in Suffolk County COUNTY OF SUFFOLK• Commission Expires April 24• f q29 On this FLI� day of January, 1998, before me personally appeared RUSSELL C. MCCALL, to me known and known to me to be the individual described in and who executed the fore- going instrument, and he duly acknowledged to me that he executed the same. Notary blic LYNN MISHOE Notary Public,Dokalb C �y My Commission Expiros h1Dve 8p,''•ti Sy'�,� � STATE OF GEORGIA: �r�iFtpiq� �G Om LSO A : • No �i tis COUNTY OF l' 1 IV m `' , �l�q I % "� his ( � day of January, 1998, before me personally appeare�., Y�i� 1�(G�ALL, q� o mej�no� n °a nown to me to be the individual described in and who e��a� ��4�„��t ` fore- going instrument, and she duly acknowledged to me that she executed 'th' �.� Notary 0 blic .1Wiinurp,�� �Y N O LYNN MISEHOrN Notary Public,Dokalb County,Ceorgid'••• srh My Commission Expires Novel r 8;•1999 `. c �'-.,�le LIC ��•`� Schedule A "The ProperL-y" located at Cutchogue , New York SCTM [ : 1000-116-1-3 . 2 ALL that certain plot, piece, or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Cutchogue, Town of Southold, County of Suffolk, and State of New York, bounded and described as follows: ` BEGINNING at a point on the southerly side of Main Road (N.Y.S. Rte. 25), said point being situate 1942.47 feet westerly as measured along the southerly side of Main Road (N.Y.S. Rle. 25) from the intersection of the southerly side of Main Road (N.Y.S. Rte. 25) with the westerly side of Linden Avenue, said point also being the intersection of the westerly line of land known and designated as Parcel to be Conveyed to the Town of Southold on Minor Subdivision, "Peconic Land Trust' and the southerly side of Main Road (N.Y.S. Rte. 25); RUNNING thence along Parcel to be Conveyed to the Town of Southold and Lot 1 as designated on Minor Subdivision "Peconic Land Trust" the following sewn (7) courses and distances: 1. South 10 deg. 59 min. 12 sec. East 713.51 feet, 2. South 60 deg. 43 min. 05 sec. West 423.96 feet, 3. South 08 deg. 24 min. 31 sec. East 365.47 feet, 4. South 60 deg. 40 min. 52 sec. West 236.81 feet, 5. South 12 deg. 17 min. 18 sec. West 1160.92 feet, 6. South 00 deg. 44 min. 58 sec. East 384.17 feet, 7. South 11 deg. 44 min. 34 sec. West 1020.87 feet to the northerly side of New Suffolk Avenue; RUNNING thence North 64 deg. 58 min. 20 sec. West along the northerly side of New Suffolk Avenue a distance of 906.61 feet to land now or formerly Richard I. Ginsberg and Marvin M. Brown; RUNNING thence along land now or formerly Richard I. Ginsberg and Marvin M. Brown the following four (4) courses and distances: 1. North 83 deg. 50 min. 00 sec. East 536.10 feet, 2. North 11 deg. 28 min. 30 sec. East 1055.34 feet, 3. North 12 deg. 24 min. 10 sec. East 847.95 feet, 4. North 08 deg. 06 min. 00 sec. West 1076.79 feet to the southerly side of Main Road (N.Y.S. Rte. 25); RUNNING thence along the southerly side of Main Road (N.Y.S. Rte. 25) the following four (4) courses and distances: 1. North 60 deg. 20 min. 20 sec. East 236.28 feet, 2. North 55 deg. 17 min. 30 sec. East 471.65 feet, 3. North 58 deg. 21 min. 50 sec. East 238.69 feet, 4. North 62 deg. 08 min. 50 sec. East 39.71 feet to land known and designated as Parcel to be Conveyed to the Town of Southold on Minor Subdivision "Peconic Land Trust" and the point or place of BEGINNING. CONTAINING an area of 37.6366 Acres. i Schedule D The Agricultural Area ALL that certain plot, piece, or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Cutchogue, Town of Southold, County of Suffolk, and Stale of New York, bounded and described as follows: BEGINNING at a point on the southerly side of Main Road (N.Y.S. Rte. 25), said point being situate 1942.47 feet westerly as measured along the southerly side of Main Road (N.Y.S. Rle. 25) from the intersection of the southerly side of Main Road (N.Y.S. Rte. 25) with the westerly side of Linden Avenue, said point also being the intersection of the westerly line of land known and designated as Parcel to be Conveyed to the Town of Southold on Minor Subdivision, "Peconic Land Trust" and the southerly side of Main Road (N.Y.S. Rte. 25); RUNNING thence along Parcel to be Conveyed to the Town of Southold and Lot 1 as designated on Minor Subdivision "Peconic Land Trust' the following seven (7) courses and distances: 1. South 10 deg. 59 min. 12 sec. East 713.51 feet, 2. South 60 deg. 43 min. 05 sec. West 423.96 feet, 3. South 08 deg. 24 min. 31 sec. East 365.47 feet, 4. South 60 deg. 40 min. 52 sec. West 236.81 feet, 5. South 12 deg. 17 min. 18 sec. West 1160.92 feet, 6. South 08 deg. 44 min. 58 sec. East 384.17 feet, 7. South 11 deg. 44 min. 34 sec. West 1020.87 feet to the northerly side of New Suffolk Avenue; RUNNING thence North 64 deg. 58 min. 20 sec. West along the northerly side of New Suffolk Avenue a distance of 906.61 feet to land now or formerly Richard I. Ginsberg and Marvin M. Drown; RUNNING thence along land now or formerly Richard I. Ginsberg and Marvin M. Drown the following four(4) courses and distances: 1. North 83 deg. 50 min. 00 sec. East 536.10 feet, 2. North 11 deg. 28 min. 30 sec. East 1055.34 feet, 3. North 12 deg. 24 min. 10 sec. East 847.95 feet, 4. Nortli 08 deg. 06 min. 00 sec. West 1076.79 feet to the southerly side of Main Road (N.Y.S. Rte. 25); RUNNING thence along the southerly side of Main Road (N.Y,S. Rte. 25) the following four (4) courses and distances: 1. North 60 deg. 20 min. 20 sec. East 236.28 feet, 2. North 55 deg. 17 min. 30 sec. East 471.65 feet, 3. 'North 58 deg. 21 min. 50 sec. East 238.69 feet, 4. North 62 deg. 08 min. 50 sec. East 39.71 feet to land known and designated as Parcel to be Conveyed to the Town of Southold on Minor Subdivision "Peconic Land Trust" and the point or place of BEGINNING. CONTAINING an area of 37.6366 Acres. EXCEPTING therefrom a portion of the above described parcel bounded and described as follows: r BEGINNING at a point on the southerly side of Main Road (N.Y.S. Rte. 25), said point being situate 1942.47 feet westerly as measured along the southerly side of Main Road (N.Y.S. Rte. 25) from t11e intersection of 1110 southerly side of Main Road (N.Y.S. Rte. 25) with [lie westerly side of Linden Avenue, said point also being the intersection of the westerly line of land known and designated as Parcel to be Conveyed to the Town of Southold on Minor Subdivision, "Peconic Land Trust" and the southerly side of Main Road (N.Y.S. Rte. 25); RUNNING thence South 10 deg. 59 min. 12 sec. Cast along Parcel to be Conveyed to [lie Town of Southold a distance of 435.15 feet to a point: RUNNING thence through the above described parcel the following two (2) courses and distances: 1. South 79 deg. 00 min. 48 sec. West 200.00 feet, 2. North 10 deg. 59 min. 12 sec. West 362.58 feet to the southerly side of Main Road (N.Y.S. Rte. 25); RUNNING thence along the southerly side of Main Road (N.Y.S. Rte. 25) the following two (2) courses and distances: 1. North 58 deg. 21 min. 50 sec. Cast 173.12 feet, 2. North 62 deg. 08 min. 50 sec. East 39.71 feet to the parcel to be conveyed to [lie Town of Southold and the point or place of BEGINNING. CONTAINING an area of 80,000 Square Feet. 2 f h Schedule C The Development- Area BEGINNING at a point on the soulhorly side of Main Road (N.Y.S. Rte. 25), said point being situate 1942.47 feet westerly as measured along the southerly side of Main Road (N.Y.S. Rte. 25) from the intersection of the southerly side of Main Road (N.Y.S. Rte. 25) with the westerly side of Linden Avenue, said point also being the intersection of the westerly line of land known and designated as Parcel to be Conveyed to the Town of Southold on Minor Subdivision, "Peconic Land Trust' and the southerly side of Main Road (N.Y.S. Rte. 25); RUNNING thence South 10 deg. 59 min. 12 sec. East along Parcel to be Conveyed to the Town of Southold a distance of 435.15 feet to a point: RUNNING thence through the above described parcel the following two (2) courses and distances: 1. South 79 deg. 00 min. 44 sec. West 200.00 feet, 2. North 10 deg. 59 min. 12 sec. West 362.513 feet to [lie southerly side of Main Road (N.Y.S. Rte. 25); I RUNNING thence along the southerly side of Main Roa (N.Y.S. Rte. 25) the following two (2) courses and distances: 1. North 58 deg. 21 min. 50 sec. East 173.12 feet, 2. North 62 deg. 00 min. 50 sec. East 39.71 feet to the parcel to be conveyed to [lie Town of Southold and the point or place of B EGINNING. CONTAINING an area of 80,000 Square Feet.