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HomeMy WebLinkAboutL 13217 P 13 I I l l l l I I I I I I I I I I I I I I I I I I I I I I I I I I I I I!III!!I I I I I I I I I I l l l l l l l SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument: EASEMENT Recorded: 09/06/2023 Number of Pages : 27 At: 01 :28 :21 PM Receipt Number : 23-0113772 TRANSFER TAX NUMBER: 23-04151 LIBER: D00013217 PAGE : 013 District: Section: Block: Lot: 1000 004 .00 05. 00 005 . 010 EXAMINED AND CHARGED AS FOLLOWS Deed Amount: $925, 000 . 00 Received the Following Fees For Above Instrument Exempt Exempt Page/Filing $135 . 00 NO Handling $20 . 00 NO COE $5 . 00 NO NYS SRCHG $15 . 00 NO TP-584 $5 .00 NO Notation $0 . 00 NO Cert.Copies $0 . 00 NO RPT $200 . 00 NO Transfer tax $0 . 00 NO Comm.Pres $0 . 00 NO Fees Paid $380 . 00 TRANSFER TAX NUMBER: 23-04151 THIS PAGE IS A PART OF THE INSTRUMENT THIS IS NOT A BILL Vincent Puleo County Clerk, Suffolk County RECORDED • � 2023 Sep 06 01:28:21 PM� Vincent. Pulao CLERSUFFOLK OF tiUFFOL€` i:OUNT',' Number of pages L D00013217 P 01.21 DTi# 23-04151 This document will be public record. Please remove all Social Security Numbers prior to recording. Deed/Mortgage Instrument Deed/Mortgage Tax Stamp Recording/Filing Stamps -TF- FEES Page/Filing Fee �� -� Mortgage Amt. 1.Basic Tax Handling 20. 00 2. Additional Tax TP-584 `J -- Sub Total Notation Spec./Assit. or EA-5217(County) Sub Total Spec./Add. EA-5217(State) TOT.MTG.TAX R,P.T,S.A. Dual Town Dual County Held for Appointment Comm.of Ed. 5. QO 1. Transfer Tax ,1 Affidavit • . Mansion Tax Certified Co The property covered by this mortgage is Copy or will be improved by a one or two NYS Surcharge 15. 00 family dwelling only. Sub Total YES or NO Other Grand Total f If NO,see appropriate tax clause on page# of this instrume t. ZZ� 4 Dist.1( 5157369 1000 00400 0500 005010 ) 5 Community Preservation Fund Real PropertyT S Ill��®���`� Consideration Amount$ 925,000 Tax Service RR T A ` l I Agency CPF Tax Due $0 Verification 06SEP-23 Improved S Satisfactions/Discharges/Releases List Property Owners Mailing Address RECORD&RETURN TO: Vacant Land V MS. LILLIAN McCULLOUGH TD TOWN OF SOUTHOLD LAND PRESERVATION DEPT. TDI P. O. BOX 1179 SOUTHOLD, NY 11971 TD Mail to: Vincent Puleo, Suffolk County Clerk 7 Title Company Information 310 Center Drive, Riverhead, NY 11901 Co.Name Fidelity National Title Insurance Company www.suffolkcountyny.gov/clerk Title# 7404-015993 8 Suffolk County Recording & Endorsement Page This page forms part of the attached DEED OF CONSERVATION EASEMENT made ,b`y: (SPECIFYTYPEOF INSTRUMENT) i� t1t^4. j L �e r nU� n 1j--Ip Uyvx The premises herein is situated in SUFFOLK COUNTY, NEW YORK. TO \_ "l , In the TOWN of SOUTHOLD r'4 ���`k�(Y� +[y- In the VILLAGE or HAMLET of FISHERS ISLAND BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING. over 7y au-0 5 DEED OF CONSERVATION EASEMENT THIS DEED OF CONSERVATION EASEMENT(he einafter referred to as this "Easement" or"Conservation Easement")is made the 17-1*day of 'J"y►!E ,20n at Southold, New York,by THE HENRY L. FERGUSON MUSEUM,a not-for-profit New York corporation,having a principal office at 1109 Equestrian Avenue,Fishers Island,New York (herein called"Grantor"),and the TOWN of SOUTHOLD, a municipal corporation of New York,having a principal office at 53095 Route 25,P.O. Box 1179,Southold, New York 11971- 0959 (herein called"Grantee"). The date upon which this document is recorded in the office of the Clerk of the County of Suffolk, State of New York,is the"Effective Date". RECITALS WHEREAS, Grantor is the sole owner in fee simple of certain real property located in the Town of Southold,Suffolk County, New York, identified as SCTM#1000-4-5-5.10 more fully described in SCHEDULE A, attached hereto and incorporated herein by this reference (hereinafter referred to as the "Property");and WHEREAS, the Property has an area of approximately 15.6 acres and is located in the Low Density Residential R-120 Zoning District of the Town of Southold;and WHEREAS, the Property is currently vacant open space;and WHEREAS, the Property is free of any mortgages or liens and Grantor possesses the right to grant this Easement;and WHEREAS, the Property in its present scenic and open condition has substantial and significant value as an aesthetic and natural resource since it has not been subject to any development; and WHEREAS, the Property possesses significant relatively natural habitat and freshwater wetlands values(collectively, the Property's "Conservation Values")of great importance to Grantor, Grantee, and the people of the Town of Southold,Suffolk County, and State of New York; and WHEREAS, Grantor wishes to grant this Conservation Easement on the Property so that the Property shall remain in its open, undeveloped,and scenic condition;and 1 r WHEREAS, the Conservation Values are protected by this Easement for the following conservation purposes: A. Protection of significant relatively natural habitat_ The protection of the Property through this Easement will preserve significant relatively natural habitat,and is therefore consistent with the requirements of New York State Law for the following reasons: (1) the Property contains freshwater wetlands as defined under Southold Town law, 275-2, and possesses both wetlands and uplands species;and (2) The Property overlooks a significant water body known as Block Island Sound, and protection of the Property through this Easement will serve to preserve the ecological integrity of Block Island Sound;and B. Preservation of open space for the scenic enjoyment of the general public, which yields significant public benefit. Protection of the Property's open space through this Easement will be for the scenic enjoyment of the general public and will yield significant public benefit, and is therefore consistent with the requirements of New York State Law for the following reasons: (1) the Property has a total of 1,749.21 feet of frontage on the publicly accessible passable/navigable East End Road, which offers the public scenic vistas from a highway accessible to the public and from a public paved recreational trail system;and (2) the Property contributes to the woodland area in its current scenic and open- space condition and has substantial and significant value as an aesthetic resource because of the fact that it has not been subject to any development;and C. Preservation of open space pursuant to clearly delineated governmental conservation policy, which yields significant public benefit_ Protection of the Property through this Easement will be for the preservation of open space pursuant to clearly delineated governmental conservation policy, which yields significant public benefit, and is therefore consistent with the requirements of New York State Law for the following reasons: Town Code: (1) a portion of the Property contains freshwater wetlands that should be protected and preserved pursuant to the policy of the Town of Southold, as 2 articulated in the Town of Southold Code, Chapter 17(Community Preservation),Chapter 275(Wetlands and Shoreline) and Chapter 185(Open Space Preservation);and State Legislation: (1) New York State has recognized the importance of not-for-profit conservation organizations' efforts to preserve land in a scenic,natural and open condition through conservation easements by enactment of the Environmental Conservation Law, Section 49-0301 et seq.;and (2) Article 14,Section 4 of the New York State Constitution states that"the policy of this state shall be to conserve and protect its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products";and (3) the Property contains freshwater wetlands that should be protected and preserved pursuant to the New York State Environmental Conservation Law, Article 24, 6NYCRR Part 662;and WHEREAS, Grantor and Grantee recognize the value and special character of the Property and the region in which the Property is located,and Grantor and Grantee have, in common, the purpose and objective of protecting and conserving the present state and inherent, tangible, and intangible Conservation Values of the Property as an aesthetic, natural, and scenic resource;and WHEREAS, Grantor has determined that the conveyance of this Easement will be desirable and beneficial and has requested Grantee, for itself and its successors and assigns, to accept this grant of a conservation easement in order to restrict the development of the Property while permitting uses compatible with the protection of the Property's Conservation Values,all as further provided herein; and WHEREAS,Grantee has determined it to be desirable and beneficial and has requested Grantor,for itself and its successors and assigns, to grant the Easement to Grantee in order to restrict the development of the Property while permitting compatible uses thereof. 3 AGREEMENT NOW, THEREFORE, in consideration of the recited facts, mutual promises, undertakings, and forbearances contained in this Easement and other valuable consideration, but as a donation nonetheless, Grantor hereby voluntarily conveys in perpetuity to Grantee, and Grantee hereby accepts, this Conservation Easement over the Property pursuant to the New York Environmental Conservation Law,Section 49-0301 et seq.,, the parties intending to be bound by its terms: 0.01 Purpose The parties recognize the Conservation Values of the Property and have the common purpose of preserving these Conservation Values in perpetuity. This Conservation Easement is granted by Grantor to Grantee for the purpose of preserving the Conservation Values in perpetuity(the "Conservation Purpose")by preventing any use or development of the Property for any purpose or in any manner that is contrary to the intent and provisions hereof, including the Conservation Purpose. 0.02 Grantee's Warranty Grantee warrants and represents that it has a commitment to uphold the Conservation Purpose of this Conservation Easement and the resources to enforce the restrictions contained herein and that the Property satisfies the criteria adopted by Grantee relating to the quality and characteristics of open land whose conservation values should be protected and maintained,as determined by the Town Board at a duly constituted meeting on January 31, 2023. 0.03 Documentation Grantee acknowledges by acceptance of this Easement that present uses of the Property are compatible with the purposes of this Easement. In order to aid in identifying and documenting the present condition of the Property's resources and otherwise aid in identifying and documenting such values as of the date hereof, to assist Grantor and Grantee with monitoring the uses and activities on the Property and ensuring compliance with the terms hereof, Grantee has prepared, with Grantor's cooperation, an inventory of the Property's relevant features and conditions(the "Baseline Documentation"). This Baseline Documentation includes a Conservation Easement Map, an aerial photograph,photographs of the Property, a topographical map, a description and site plan of land uses,features, and structures, and an acknowledgment page signed by Grantor and Grantee, which verifies that the Baseline Documentation accurately represents the condition of the Property as of the Effective Date of this Easement. Copies of the Baseline Documentation shall be retained safely by Grantor and 4 Grantee. Grantor and Grantee acknowledge and agree that in the event a controversy arises with respect to the nature and extent of Grantor's uses of the Property or its physical condition as of the date hereof, the parties shall not be precluded from utilizing any other relevant or material document, survey, report, photograph, or other evidence to assist in the resolution of the controversy. ARTICLE ONE THE EASEMENT 1.0�e This instrument conveys a conservation easement in gross under the provisions of Article 49, Title 3, of the Environmental Conservation Law of the State of New York and the provisions of Chapter 17 and Chapter 185 of the Town Code of the Town of Southold.This Conservation Easement shall consist of the covenants,restrictions,rights,terms, and conditions recited herein.Reference to this"Easement," "Conservation Easement" or its"provisions" shall include any and all of those covenants,restrictions, rights, terms and conditions. 1.02 Duration This Easement shall be a burden upon and shall run with the Property in perpetuity. 1.03 Effect This Easement shall run with the Property as an incorporeal interest in the Property and shall extend to and be binding upon Grantor and Grantee.The terms "Grantor" and "Grantee" when used herein shall include,respectively, the above-named Grantor and its representatives, agents, licensees,successors and assigns, and the above-named Grantee and its successors and assigns. ARTICLE TWO PROHIBITED USES AND ACTIVITIES Grantor's use and development of the Property shall be consistent with the Conservation Purpose and compatible with the preservation of the Property's Conservation Values in perpetuity, and any use that is inconsistent with the Conservation Purpose of this Easement or otherwise deleterious to the Conservation Values is prohibited.Without limiting 5 the generality of the foregoing, the following uses and practices, though not an exhaustive recital of inconsistent uses and practices, are inconsistent with the Conservation Purposes of this Easement and, unless otherwise explicitly provided herein, are prohibited anywhere on the Property. 2.01 Buildings and Structures Except as otherwise expressly provided in Article Three of this Easement, the construction or placement of any residential, commercial,industrial or other building,structure, or improvement of any kind or nature(including,but not limited to, one or more mobile homes),whether permanent or temporary,on, over, or under the Property is prohibited. 2.02 Excavation and Removal of Materials;MininZ Mineral exploitation,and extraction of any mineral(including but not limited to soil, gravel, sand and hydrocarbons),by any method, including surface or subsurface, is prohibited. Grantor shall not remove or fill topsoil, sand,or any other materials, nor shall the topography of the Property be changed, except in connection with the construction and maintenance of any structure or improvement expressly permitted to be placed or constructed on the Property under the terms of Article Three below. Grantor may remove topsoil, sand or other materials for purposes of erosion control and soil management only with the prior written approval of Grantee. 2.03 Subdivision For purposes of this Conservation Easement, the Property is considered and shall remain one (1) parcel in unified ownership. Grantor shall not subdivide, de facto subdivide, partition or seek to partition, or otherwise divide the Property into separately conveyable parcels. 2.04 Dumping The dumping or accumulation of unsightly or offensive materials, including but not limited to manure, trash,sawdust, landscape materials, ashes or chemical waste, on the Property is prohibited. 2.05 Signs The display of any sign,billboard, or advertisement is prohibited, except as expressly permitted in Section 3.01 below. 6 2.06 Cutting of Timber[Landscaping The cutting,harvesting,or removing of trees, shrubs, or other vegetation on the Property is prohibited,except as expressly permitted in Section 3.02 below. 2.07 Soil and Water Any use or activity that is not otherwise expressly or conditionally permitted under this Easement, which causes or is likely to cause soil degradation or erosion or pollution of any surface or subsurface waters, is prohibited. 2.08 Wetlands and/or Stream Buffer The draining,filling, dredging, or diking of any wetland areas, including any enlargements thereof, or the cultivation or other disturbance of the soil within 100 feet of any wetlands is prohibited. 2.09 Ponds and Watercourses The alteration of any or watercourse located on the Property or the creation of any new water impoundment or watercourse is prohibited without Grantee's prior written approval. 2.10 Vegetation Management and Screening The placement of any landscape screening, hedgerow,or any other type of screening along or near East End Road or the scenic viewshed from East End Road is prohibited. 2.11 Commercial and Industrial Uses Any commercial or industrial use of the Property,including any commercial recreational use, is prohibited. 2.12 Utilities The creation or placement of overhead utility transmission lines, utility poles, wires, pipes,wells or drainage and septic systems on the Property is prohibited,except to the extent the same exist on the Property on the date hereof as reflected in the Baseline Documentation or as permitted pursuant to the reservation of easements and rights-of-way in Grantor's deed to the Property. Underground irrigation systems are prohibited. 7 2.13 Drainaee The use of any portion of the Property for a leaching or sewage disposal field is prohibited, except to service the structures and improvements expressly permitted by this Easement.The use of the Property for a drainage basin or sump is prohibited, except to control flooding or soil erosion on the Property. 2.14 Development Rights The use of this Property for the purpose of calculating tot yield or development density on the Property or any other property, adjacent or otherwise, is prohibited. Grantor hereby grants to Grantee all development rights existing on the Property as of the Effective Date of this Easement(and any future development rights that may be created through a rezoning of the Property or otherwise) that have not been retained or reserved by Grantor under this Easement. Notwithstanding the above, Grantee, pursuant to Chapter 117 of the Town Code of the Town of Southold may calculate and capture the sanitary flow credits associated with the Property for use pursuant to the provision of Chapter 117. ARTICLE THREE PERMITTED USES AND ACTIVITIES Grantor reserves the right to use the Property in any manner that is not inconsistent with the Conservation Purpose and other terms and conditions of this Easement and in accordance with applicable laws and restrictions. Without limiting the generality of the foregoing, the following uses and practices, though not an exhaustive recital of consistent uses and practices, are expressly permitted under this Easement if conducted pursuant to the terms hereof. 3.01 Signs The display of any sign,billboard,or advertisement is prohibited,except for signs whose placement, number, and design do not significantly diminish the Conservation Values of the Property and only for any of the following purposes: (a) to state the name and address of the Property; (b) to post the Property to control unauthorized entry or use;or(c) to announce this Conservation Easement. Any permitted sign shall not be more than six (6) square feet in size, shall be non-illuminated, and shall be subject to applicable governmental regulatory requirements. 8 3.02 Cutting of Ve etation andscain The cutting,harvesting,or removal of trees,shrubs, or other vegetation on the Property is prohibited, except for the following purposes with prior written approval of Grantee except in the case an emergency involving imminent danger to life or property and in accordance with good forest management practices and the Conservation Purpose of this Easement: (a) to clear and restore trees and forest cover that is or has been dead, damaged, diseased or destroyed;(b) to prune and selectively thin trees to create limited vistas;(c) to construct and maintain those structures and improvements and to conduct those uses and activities that are expressly permitted under the terms this Easement; (d) for firewood and fencing for use on the Property; (e) to remove hazards to persons or to the Property;and(0 to trim, cut and clear trees and brush from time to time in order to allow and maintain safe access to and through the Property over the Property. The cutting and removal of trees,shrubs or other vegetation shall also be permitted for the purpose of creating trails which will be integrated into Grantor's existing unpaved trail system and made accessible to the public. 3.03 Structures and Improvements Grantor shall have the right to erect and maintain the following improvements, provided such improvements are (i) compatible with the preservation of the Conservation Values, (ii) consistent with the Conservation Purpose,and (iii) in accordance with the following provisions: A. Allowable Non-Residential (Accessory) Improvements With the prior written approval of Grantee, Grantor may erect and maintain the following non-residential improvements on the Property: i. Structures to facilitate wildlife management,such as signs, feed dispensers,and hunting blinds/tree stands; ii. Fences, provided they are placed and constructed so that they do not block or detract from the scenic view of the Property; iii. A nature trail(s)or footpath(s) for the use of the owners, tenants, occupants, assigns, and possessors of the Property, the guests of same, and the general public,subject to any required regulatory approvals; iv. Benches for the use of the owners, tenants, occupants, assigns, and possessors of the Property, the guests of same, and, with Grantee's prior 9 written approval, the general public, subject to any required regulatory approvals. B. Replacement of Structures or Improvements In-Kind In the event of destruction of or damage to any existing or expressly permitted structure or improvement to such an extent that repair of such structure or improvement is impractical,erection of a replacement of comparable size,bulk,use, and general design to the destroyed or damaged structure or improvement is permitted within the same location subject to the prior written approval of Grantee. C. Environmental Sensitivity during Construction The location and use of any structure or improvement permitted to be constructed hereunder shall be consistent with the Conservation Purpose, and construction of any such improvement shall minimize disturbance to the Conservation Values and other natural resources of the Property. Grantor shall employ erosion and sediment control measures to ensure that storm water runoff will not carry eroded and other deleterious materials into Great Pond (or other wetland areas), including but not limited to employing the least possible removal of vegetation, minimal movement of earth, and minimal clearance of access routes for construction vehicles. ARTICLE FOUR NOTICE AND APPROVAL 4.01 Notice and Approval A. Requests for Approval of Certain Uses or Activities With respect to any use or activity under Articles Two and Three that requires the prior approval of Grantee,or in the event Grantor proposes to undertake a use or activity that is not expressly prohibited hereby but which may have an adverse impact on the Conservation Values and other conservation interests associated with the Property, Grantor shall, in writing, request Grantee's approval and shall include therewith information identifying the proposed activity and the reasons for and other details of the proposed activity with reasonable specificity.The request for approval shall describe the nature, scope, location, timetable, and any other material aspect of the proposed activity (including, if appropriate, sketch plans or scaled drawings of the site(s) of the proposed 10 activity) in sufficient detail to permit Grantee to evaluate such activity. The request shall also include information evidencing the conformity of such activity with the requirements of the applicable section under which approval is requested hereunder. Grantee's approval,which shall not be unreasonably withheld,shall take into account the following criteria: (i) the extent to which the proposed activity or use of the site for the proposed activity would impair the scenic qualities of the Property that are visible from Soundview Avenue;and (ii) the extent to which the proposed activity or use of the site for the proposed activity would otherwise impair the Conservation Values of the Property;and (iii) the extent to which the proposed activity or use of the site for the proposed activity would be inconsistent with the Conservation Purpose of this Easement. Grantor and Grantee shall cooperate and shall act in good faith to arrive at agreement on suitable sites and activities in connection with any determinations that are necessary to be made by them (either separately or jointly) under this section. Notwithstanding the foregoing, Grantee's approval of a proposed site or activity shall be withheld if the use of the site for the proposed activity would interfere with the essential scenic quality of the Property, impair the Conservation Values of the Property, or would otherwise be inconsistent with the Conservation Purpose of this Easement. B. Grantee's Response In accordance with Paragraph A of this section, Grantee shall approve, conditionally approve, or withhold approval of the proposed use or activity within forty- five (45) days of receipt of Grantor's written request therefor. Grantee agrees to evaluate Grantor's requests under this Easement based on its good-faith exercise of professional judgment. Notwithstanding the above, if in good faith Grantee requires more than forty- five (45) days to undertake a sufficient and thorough review of the documentation provided, or determines that it requires further documentation, Grantee shall so notify Grantor within the original forty-five (45) day period of the additional time and/or documentation required to respond to Grantor's request hereunder.At Grantee's sole and absolute discretion, Grantee may permit commencement of the activity less than forty- five (45) days after receiving Grantor's written notice. In the case of withholding of approval, Grantee shall notify Grantor in writing with reasonable specificity of the reasons for withholding of approval,and the conditions, if any,on which approval might otherwise be given. Failure of Grantee to deliver a written response to Grantor within 11 such forty-five (45)days (as extended, as discussed above) shall be deemed to constitute written approval by Grantee of any request submitted for approval that is not contrary to the express provision hereof, including but not limited to the Conservation Purpose, and whose implementation would not impair the Property's Conservation Values. If Grantor disagrees with Grantee's reasons for withholding approval of the action proposed by Grantor, upon Grantor's agreement not to commence the disputed activity pending the resolution of the disagreement, the matter may be submitted to non-binding mediation. 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 any such payment, Grantee is authorized to make such payments(but shall have no obligation to do so)upon ten (10)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 one(1)percentage point over the prime rate of interest from time to time charged by Citibank, N.A., or its corporate successor, in no event to exceed a legal interest rate. 5.02 Indemnification Grantor acknowledges that Grantee has neither possessory rights in the Property nor any responsibility nor right to control, maintain,or keep up the Property.Grantor has and shall retain all responsibilities and shall bear all costs and liabilities of any nature related to the ownership,operation,upkeep, improvement, and maintenance of the Property.Grantor hereby releases and agrees to hold harmless, indemnify and defend Grantee and its members, directors, officers, employees, legal representatives, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them(collectively, "Indemnified Parties") from and against any and all liabilities, penalties, fines, charges,costs,losses, damages, expenses, causes of action, claims, demands, orders,judgments, or administrative actions, including,without limitation, reasonable attorneys' fees, arising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property,regardless of cause,unless due solely to the negligent act or willful misconduct of 12 Grantee;or(2) violation or alleged violation of,or other failure to comply with, any state, federal, or local law, regulation,or requirement or this Easement by any person, other than Grantee, in any way affecting, involving, or relating to the Property. 5.03 Insurance Grantor shall keep the Property insured by an insurance company rated Al or better in a reasonable amount against loss from the perils commonly insured under standard fire and extended coverage policies and comprehensive general liability insurance against claims for personal injury, death, and property damage.Such insurance shall include Grantee as an additional insured. Grantor shall promptly deliver to Grantee a certificate of insurance upon reasonable request of Grantee. Grantee shall have the right to obtain a reasonable policy of insurance on the Property should Grantor fail to obtain same; provided,that in the event Grantee obtains such insurance, the cost of such insurance shall be a lien on the Property until repaid by Grantor. 5.04 Environmental Responsibilities Grantor Responsible for the Property. Grantor is solely responsible, and Grantee has no responsibility,for the operation of the Property or the monitoring of hazardous or other conditions thereon. Nothing in this Easement shall be construed as giving any right or ability to Grantee to exercise physical or managerial control of the day-to-day operations of the Property or of Grantor's activities on the Property. Neither Grantee nor its agents shall be liable to the Grantor or other person or entity in connection with consents given or withheld or in connection with any entry upon the Property pursuant to this Easement. Grantor's Environmental Warranty and Indemnity. Grantor represents and warrants that it has no actual knowledge of a release or threatened release of any Hazardous Materials (as defined below) on the Property and hereby promises to hold harmless,defend and indemnify Grantee from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands,orders,judgments,or administrative actions, including, without limitation, reasonable attorneys' fees, arising from or connected with the presence of or any release of Hazardous Materials on the Property or violation of federal, state or local Environmental Laws(as defined below). This Easement is not intended to and shall not create environmental liability in Grantee. Notwithstanding any other provision herein to the contrary, the parties do not intend this Easement to be construed such that it imposes on, creates in, or gives Grantee: 13 (1) the obligations or liability of an"owner" or"operator" as those words are defined and used in Environmental Laws, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq., and hereinafter "CERCLA"); (2) the obligations or liability of a person described in 42 U.S.C. Section 9607(a)(3) or(4); (3) the obligations of a responsible person under any applicable Environmental Laws; (4) the right to investigate and remediate any Hazardous Materials associated with the Property; or (5) any control over Grantor's ability to investigate, remove, remediate, or otherwise clean up any Hazardous Materials associated with the Property. The term"Hazardous Materials" includes,but is not limited to, (i) material that is flammable,explosive,or radioactive,(ii) petroleum products; and (iii)hazardous materials, hazardous wastes,hazardous or toxic substances,or related materials, including but not limited to those defined in CERCLA, the Hazardous Materials Transportation Act(49 U.S.C. Section 5101,et seq.), New York Environmental Conservation Law (NY ECL 27-0901), or any other Environmental Law, and in the regulations adopted and publications promulgated pursuant to them, or any other applicable federal, state, or Iocal laws,ordinances, rules, or regulations now in effect or enacted after the Effective Date of this Easement. The tern "Environmental Laws" includes, but is not limited to, any federal, state or local or administrative agency statute, regulation, rule, ordinance,order or requirement now in effect or enacted after the Effective Date of this Easement relating to pollution, protection of human health, the environment, or Hazardous Materials. ARTICLE SIX GRANTEE'S RIGHTS 6.01 Entry and Inspection Grantee and its employees, agents, and contractors shall have the right to enter upon the Property for the purpose of inspection and monitoring to determine whether this Easement and 14 its Conservation Purpose and other provisions are being upheld. Except in cases where Grantee determines,in its reasonable discretion, that immediate entry is required to investigate a use or condition on the Property in order to prevent, terminate,or mitigate a violation or potential violation of the terms of this Easement, such entry shall be permitted only at reasonable times and upon prior notice to Grantor and shall be made in a manner that will not unreasonably interfere with Grantor's use and quiet enjoyment of the Property. Grantee shall not have the right to permit access upon the Property by the general public. 6.02 Protection and Restoration Grantee shall have the right to identify, preserve, and protect in perpetuity the Conservation Values of the Property, including,but not limited to, by means of review and approval of improvements and activities as set forth in Article Four above.Grantee shall have the right to prevent any activity on or use of the Property that is inconsistent with the Conservation Purpose or other provisions of this Easement and to require Grantor to restore such areas or features of the Property that may be damaged by any inconsistent and/or unpermitted condition, activity or use and to enforce these rights by any action or proceeding that Grantee may reasonably deem necessary. However,Grantor shall not be liable for any changes to the Property resulting from causes beyond Grantor's control, including, without limitation, fire, flood,storm, earth movement or other acts of nature,unauthorized acts of unrelated third parties, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to persons, property,or 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 may be inadequate.Therefore, in addition to, and not in limitation of, any other rights of Grantee 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 within thirty (30)days of Grantor's receipt of Grantee's notice of such breach, default or violation, or in cases where more than 30 days is reasonably needed to effect a cure a bona fide attempt has not been begun by Grantor within such 30-day period (which notice and cure requirements are expressly waived by Grantor with respect to any such breach, default or violation which, in Grantee's reasonable judgment, requires immediate action to preserve and protect any of the Conservation Values or otherwise to further the Conservation Purpose of this Easement), Grantee shall have the right at Grantor's sole cost and expense and at Grantee's election, 15 (a) To institute a suit to enjoin or cure such breach, default or violation by temporary and/or permanent injunction and/or to require the restoration of that portion of the Property affected by such breach, default or violation to the condition that existed prior thereto; (b) To enter upon the Property to verify, investigate, document, terminate,or cure such breach,default or violation and/or to cause the restoration of that portion of the Property affected by such breach, default or violation to the condition that existed prior thereto; and/or (c) To seek or enforce such other legal and/or equitable relief or remedies as Grantee deems necessary or desirable to ensure compliance with the terms, conditions, covenants, obligations and Conservation Purpose of this Easement;provided, however, that any failure, delay or election to so act by Grantee shall not be deemed to be a waiver or a forfeiture of any right or available remedy on Grantee's part 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. Grantee's remedies described in the section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. Grantor shall pay,either directly or by reimbursement to Grantee, all reasonable attorney's fees, court costs and other expenses (collectively, "Litigation Expenses") incurred by Grantee in connection with any proceedings initiated under this section. Litigation Expenses include,but are not limited to, those Litigation Expenses incurred by Grantee in the event Grantor or anyone acting by, through, under,or on behalf of Grantor,commences litigation against Grantee to enforce any rights hereunder or to dispute any action or inaction of Grantee, to enforce any alleged duty or obligation of Grantee hereunder,or to seek damages or specific performance against Grantee,except in the event Grantee is finally determined by a court of competent jurisdiction,beyond right of appeal, to have acted in a manner that is contrary to the terms of this Conservation Easement and to have failed to exercise reasonable judgment(except in those circumstances of which Grantee is given sole and absolute discretion as expressly provided herein), taking into account the Conservation Purpose of this Easement and the circumstances of which Grantee had actual knowledge at the relevant time.Grantee shall not be considered to have failed to exercise reasonable judgment as aforesaid solely based on the fact that Grantee did not or does not prevail in such legal proceedings or that Grantee is determined to have adopted an interpretation of this Conservation Easement not accepted by the court. In addition,if Grantee initiates litigation against Grantor to enforce this Easement,and if the court determines that Grantor is the prevailing party and also determines that(i) the litigation was initiated with the primary purpose to harass, embarrass, or injure Grantor; (ii) Grantee did not have a reasonable basis to 16 believe that the facts underlying Grantee's legal position were in fact true;or(iii) Grantee's legal position was devoid of arguable legal merit, then the court may require Grantee to reimburse Grantor's reasonable costs and reasonable attorney's fees in defending the action. 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 Assi agn bility Grantee shall have the right to transfer or 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, and which is organized and operated primarily or substantially for one of the conservation purposes specified in Section 170(h)(4)(A)of the Code. Any assignment by Grantee must require, and the Assignee must agree, that the Assignee and Assignee's successors will carry out the purposes of, and enforce, this Easement. The Assignee and its successors and assigns shall have the same right of assignment,subject to compliance with the provisions of this section. Grantee shall promptly notify Grantor of any such assignment. 6.06 Succession If at any time Grantee is unable to enforce this Easement,or if Grantee ceases to exist or ceases to be a qualified organization under Section 170(h)(3) of the Code or eligible donee under Treasury Regulation section 1.170A-14(c), then this Easement shall be vested in such qualified corporation,body or agency (other than any governmental unit or agency)and upon the conditions and limitations contained in Section 6.05 above as Grantee shall designate. If, on the occurrence of any of these events,Grantee 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 that is an eligible donee upon the condition and limitations contained in Section 6.05, then the rights and responsibilities under this Easement shall become vested in another qualified organization that is an eligible donee upon the condition and limitations contained in Section 6.05 in accordance with a cy pres proceeding brought in any court of competent jurisdiction. The then-current owner(s)of the Property will be notified of any such proceedings. 17 6.07 Extinguishment The donation of this Easement gives rise to a property right, immediately vested in the Grantee,with a fair market value that is equal to the proportionate value that this Easement at the time of this gift,bears to the value of the Property as a whole at that time, and that proportionate value(hereinafter, "Grantee's Percentage") shall remain constant.This Easement can be terminated or extinguished, whether in whole or in part, only(i) in a judicial proceeding in a court of competent jurisdiction, (ii)upon a finding by the court that a subsequent unexpected change in the conditions surrounding the Property has made impossible or impractical the continued use of the Property for the Conservation Purpose, and (iii)with a payment of proceeds (calculated as provided in the following sentence)to Grantee, and Grantee shall use all such proceeds in a manner consistent with the Conservation Purpose of this contribution.In the event of such an extinguishment, Grantee shall be entitled to a share of the proceeds from a subsequent sale, exchange, or involuntary conversion of the Property that is equal to Grantee's Percentage of such proceeds.The value of this Easement shall be determined at the time of any such extinguishment by an independent appraisal by a "qualified appraiser," as defined in Treasury Regulations section 1.170A-13(c)(5), who is mutually agreeable to Grantor and Grantee,the cost of which appraisal shall be borne by Grantor. If all or any part of the Property is taken under the power of eminent domain by public, corporate, or other authority so as to abrogate the restrictions imposed by this Easement or otherwise effectively to frustrate the Conservation 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. In making this grant of Easement, Grantor has considered the possibility that uses prohibited by the terms of this Easement may become more economically viable than the uses specifically reserved by Grantor pursuant to this Easement. It is the intent of both Grantor and Grantee that any such change in economic conditions shall not be deemed to be circumstances justifying the termination or extinguishment of this Easement pursuant to this section. ARTICLE SEVEN MISCELLANEOUS 7.01 Alienability 18 Grantor shall have the right to convey, mortgage,or lease all of its remaining interest in the Property but only subject to the terms of this Easement. Grantor shall promptly notify Grantee of any conveyance of any interest in the Property, including the full name and mailing address of any transferee, and, in the case of a transfer to an entity, the individual principals thereof. 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 or the validity of this Easement in any way. 7.02 Entire Understandine 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. 7.03 Amendment This Easement can be amended and modified only in accordance with the terms of this Easement and the common and statutory laws of the State of New York applicable to the modification of easements and covenants running with the land. Grantee and Grantor shall mutually have the right to agree to amendments to this Easement, provided, however, that Grantee shall have no right or power to agree to any amendment hereto that is inconsistent with the Conservation Purpose or 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, or any regulation issued pursuant thereto, or under Code section 170(h). No amendment may be approved by Grantee that would -or, as Grantee in its judgment may determine,could-violate the rules of impermissible private benefit or of private inurement under applicable sections of the Code, including but not limited to Section 501(c)(3) of the Code or affect this Easement's perpetual duration. Any such amendment shall be permitted only upon Grantee's determination,in its sole discretion,that such amendment will not jeopardize Grantee's status as an organization described in Code sections 170(h)(3) and 501(c)(3). 7.04 Severability Any provision of this Easement restricting Grantor's activities that is determined to be invalid or unenforceable by a court of competent jurisdiction shall not be invalidated. Instead, that provision shall be reduced or limited to whatever extent that court determines will make it 19 enforceable and effective. Any other provision of this Easement that is determined to be invalid or unenforceable by a court of competent jurisdiction shall be severed from the other provisions,which shall remain enforceable and effective. 7.05 Notice All notices required by this Easement must be written. Notices shall be delivered by hand;by express,certified or registered mail, return receipt requested;by certified mail, with sufficient prepaid postage affixed and with return receipts requested;or through courier delivery by a national courier service that provides automated delivery tracking; provided, however, that notices from Grantee to Grantor to notify Grantor of the date and time of routine annual monitoring of the Property pursuant to Section 6.01 above may be delivered by U.S. First-Class Mail. Notices 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. Notice to Grantee shall be addressed to its principal office, recited herein, marked for the attention of the President, or to such other address as Grantee may designate by notice in accordance with this section. Notice shall be deemed given and received as of the date of its actual delivery to the recipient. 7.06 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. 7.07 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 or the other party's attorney. No alleged ambiguity in this Easement shall be construed against the party which drafted it or 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 Conservation Purpose of this Easement. Any rule of strict construction designed to limit the breadth of the restrictions on use of the Property shall not apply in the construction or interpretation of this Easement, and this Easement shall be interpreted broadly to effect the Conservation Purpose of this Easement as intended by the parties. The parties intend that this Easement, which is by nature and character primarily negative in that Grantor has restricted and limited his right to use the Property, except as 20 otherwise recited herein,be construed at all times and by all parties to effectuate its Conservation Purpose. 7.08 Public Access Nothing contained in this Easement grants,nor shalt be interpreted to grant, to the general public any right to enter upon the Property except the public may access the Property via constructed trails which connect the Easement property to other public trails. 7.09 Warranties The warranties and representations made by the parties in this Easement shall survive its execution. 7.10 Recordine Grantee shall record this Easement in the land records of the office of the Clerk of the County of Suffolk, State of New York. 7.11 Enforceable Restriction;Successors The covenants, terms,conditions, and restrictions of this Easement shall be binding upon,and inure to the benefit of, the parties hereto and their respective personal representatives,agents, heirs,successors, and assigns and shall continue as a servitude running in perpetuity with the Property. 7.12 Termination of Rights and Obligations A party's rights and obligations under this Easement terminate upon transfer of the party's interest in the Easement or the Property,except that liability for acts or omissions occurring prior to transfer shall survive transfer. 7.13 Headings The headings, titles and subtitles herein have been inserted solely for convenient reference and shall be ignored in its construction. 7.14 Counterparts 21 Grantor and Grantee may execute this instrument in two or more counterparts; each counterpart shall be deemed an original instrument. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. [Signatures to follow on next page.] 22 IN WITNESS WHEREOF,Grantor has executed and delivered and Grantee has accepted and received this Deed of Conservation Easement on the day and year set forth above. ACKNOWLEDGED AND ACCEPTED: GRANTOR THE HENRY L. FERGUSON MUSEUM BY: �L.-L.A... tw Stephen L. Ham, III, designated signatory ACKNOWLEDGED AND ACCEPTED: GRANTEE TOWNHOLD,INCORPORATED BY: vc.� evin Foote,Deputy S ervisor SCHEDULE A: Metes and Bounds Description of the Property 23 STATE OF Ive COUNTY OF S I k ) SS: On this P day ofJ�"" in the year 203 before me, the undersigned, personally appeared S7cPkA+ 4. PAm personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s)is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted,executed the instrument. zeRobert Defrese Note ublic � � Re Ist Public State of New Vbrk AegglstraUon No.01 DE5035117 Qualffied In Suffolk Courry Cananlssion EVIM Ot�obei 24,2028 STATE OF /y o w YO, +� ) COUNTY OF ��6LI /r- ) SS: On this 1a day ofSuN" in the year 20 before me, the undersigned, personally appeared Ke v;n, Fo'r`t , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s)whose name(s)is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s)on the instrument, the individual(s), or the person upon behalf of which the individual(s)acted,executed the instrument. Nc)dtary Public ] Robert DeRm Notary Public State of NewYodC Registration No.01 DE5035117 Qualified in Suffolk County Commission Expires October 24.2028 24 FIDELITY NATIONAL TITLE INSURANCE COMPANY TITLE NO. 7404-015754 SCHEDULE A (Description of the Land) For Tax Map ID(s): 1000-004.00-05.00-005.010 AMENDED 6!612023 All that certain tract or parcel of land located on the Northerly side of East Main Road (a/k/a East End Road), the Northwesterly side of Top of The World, the Northeasterly and Southeasterly line of Brooks Point Road and the Southerly and Southeasterly side of Firestone Drive, lying and being at Fishers island, Town of Southold, County of Suffolk and State of New York being more particularly bounded and described as follows: BEGINNING at a point in the Southeasterly line of Firestone Drive which is located 168.49 feet North of a point which is 842.55 feet West of a monument marking the United States Coast and Geodetic Survey Triangulation Station "Chocomount 2', said point being on the dividing line of the herein described tract of land and land now or formerly of Arthur Kuypers and Roelfien Kuypers; and RUNNING THENCE along said land now or formerly of Arthur Kuypers and Roelfien Kuypers South 64 degrees 35 minutes 50 seconds East 301.79 feet to an iron pipe; THENCE South 24 degrees 56 minutes 10 seconds West 189.27 feet to an iron pipe; THENCE South 54 degrees 38 minutes 30 seconds East 284.48 feet to a point, the last two lines abutting Southeasterly and Northeasterly on land now or formerly of Anne H. Polk Revocable Trust; THENCE South 54 degrees 38 minutes 30 seconds East 360.66 feet to a point; THENCE North 00 degrees 47 minutes 20 seconds West 49.75 feet to an iron pipe, the last two lines abutting Northeasterly and Westerly on land now or formerly of Samuel S. Polk Revocable Trust; THENCE South 68 degrees 01 minutes 40 seconds East 261.76 feet to an iron pipe in the Northwesterly line of Top of The World, the last line abutting Northeasterly on land now or formerly of,John Maxwell Soper and Berkeley Bayne Soper; THENCE running along said Northwesterly line of Top of The World South 21 degrees 32 minutes 00 seconds West 57.91 feet to a point, said point being at the beginning of an arc of a curve to the right having a radius of 46.96 feet and the direction of whose radius at that point is North 68 degrees 28' 00 seconds West; THENCE Southwesterly following said arc of the curve to the right along said Northwesterly line of Top of The World 43.57 feet to a point in the Northerly line of East Main Road (a/k/a East End Road); THENCE running along said Northerly line of East Main Road (a/k/a East End Road)South 74 degrees 41 minutes 50 seconds West 62.10 feet to a point, said point being at the beginning of an arc of a curve to the right having a radius of 263.49 feet and the direction of whose radius at that point is North 15 degrees 18 minutes 10 seconds West; THENCE Southwesterly and Northwesterly following said arc of the curve to the right along said Northerly line of East Main Road (alk/a East End Road) 97.02 feet to a point; THENCE continuing along said Northerly line of East Main Road (a/k/a East End Road) North 84 degrees 12 minutes 20 seconds West 1193.98 feet to a point, said point being at the beginning of an arc of a curve to the right having a radius of 518.25 feet and the direction of whose radius at that point is North 05 degrees 47 minutes 40 seconds East; THENCE Northwesterly following said arc of the curve to the right along said Northerly line of East Main Road (a/k/a East End Road)238.04 feet to a point; THENCE continuing along said Northerly line of East Main Road (a/k/a East End Road) North 57 degrees 53 minutes 20 Commitment for Titre Insurance Printed; 06.06.23 C 10:55 AM Schedule A-1 Description NY-F7 FRVH-01030.431004-SPS-1-22-7404-015754 FIDELITY NATIONAL TITLE INSURANCE COMPANY TITLE NO. 7404-015754 SCHEDULE A-1 (Continued) seconds West 158.07 feet to a point in the Northeasterly line of Brooks Point Road, said point being at the beginning of an arc of a curve to the right having a radius of 86.50 feet and the direction of whose radius at that point is North 32 degrees 06 minutes 40 seconds East; THENCE Northwesterly following said arc of the curve to the right along said Northeasterly line of Brooks Point Road 122.65 feet to a point, said point being at the beginning of an arc of a curve to the right having a radius of 120.14 feet and the direction of whose radius at that point is South 66 degrees 46 minutes 20 seconds East; THENCE Northeasterly following said arc of the curve to the right along the Southeasterly line of Brooks Point Road 111.10 feet to a point in the Southeasterly line of Firestone Drive; THENCE running along said Southeasterly line of Firestone Drive North 76 degrees 12 minutes 50 seconds East 92.70 feet to a point, said point being at the beginning of an arc of a curve to the right having a radius of 661.21 feet and the direction of whose radius at that point is South 13 degrees 47 minutes 10 seconds East; THENCE Northeasterly and Southeasterly following said arc of the curve to the right along said Southeasterly line of Firestone Drive 186.02 feet to a point; THENCE running along the Southerly line of Firestone Drive South 87 degrees 40' 00 seconds East 162.34 feet to a point, said point being at the beginning of an arc of a curve to the left having a radius of 244.48 feet and the direction of whose radius at that point is North 02 degrees 20 minutes 00 seconds East; THENCE Northeasterly following said arc of the curve to the right along the Southeasterly line of Firestone Drive 304.12 feet to a point; THENCE continuing along said Southeasterly line of Firestone Drive North 21 degrees 03 minutes 40 seconds East 193.32 feet to the point or place of BEGINNING. THE POLICY TO BE ISSUED under this commitment will insure the title to such buildings and improvements on the premises which by law constitute real property, FOR CONVEYANCING ONLY: Together with all the right, title and interest of the party of the first part, of in and to the land lying in the street in front of and adjoining said premises. END OF SCHEDULE A Commitment for Title Insurance Printed: 06.06.23 @ 10:55 AM Schedule A-1 description NY-FT-FRVH-01030.431004-SPS-1-22-7404-015754