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.