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HomeMy WebLinkAboutNielsen (FI Easement) 1--11-10'\ y-50 \ SCHEDULE A TO CONSERVATION EASEMENT Grantor: Frances E. Nielsen Grantee: Town of Southold Conservation Easement Dated: June ,2003 Lot 8-7 - Map of Fishers Island Development Corooration BEG INN ING at a stone monument set on the southwesterly side of a road, said monument being 530.88 feet South of a point which is 749.28 feet West of another monument marking the United States Coast and Geodetic Survey Triangulation Station "East End 2" (which said "East End 2" monument is located on the summit of the highest hill East of East Harbor on Fishers Island, N.Y. and lies South 54 minutes West of Latimer Reef Light in Fishers Island Sound); RUNNING THENCE South 19 degrees 01 minute 30 seconds West, 310.82feettoan iron pipe; THENCE North 62 degrees 11 minutes 00 seconds West, 203.23 feet to an iron pipe; THENCE North 24 degrees 45 minutes 50 seconds East, 341.39 feet to a stake; THENCE North 63 degrees 56 minutes 00 seconds East, 74.21 feet to a stake set on the southwesterly side of said road; THENCE southeastwardly, along the southwesterly side of said road (and following the arc of a curve to the right whose radius is 490.60 feet and the direction of whose radius at that point is South 58 degrees 02 minutes 30 seconds West), 87.43 feet to a stake; THENCE still along the southwesterly side of said road, South 21 degrees 44 minutes 50 seconds East, 48.00 feet to a stake marking a point of curve to the left whose radius is 60.32 feet and direction of whose radius at that point is North 68 degrees 15 minutes 10 seconds East; THENCE southeastwardly still along the southwesterly side of said road (and following the arc of said curve), 25.64 feet to the stone monument at the point or place of BEGINNING. Lot 8-8 - Map of Fishers Island Development Corporation BEGINNING at a stone monument set on the southeasterly side of a road forty feet wide, said monument being 495.53 feet South of a point which is 1295.70 feet West of another monument marking the United States Coast and Geodetic Survey Triangulation Station "East End 2" (which said "East End 2" monument is located on the summit of the highest hill East of East Harbor on Fishers Island, N.Y. and lies South 54 minutes West of Latimer Reef Light in Fishers Island Sound); RUNNING THENCE along the southeasterly side of said road, North 72 degrees 54 minutes 40 seconds East, 12.00 feet to a stake marking a point of curve to the left whose radius is 249.80 feet and the direction of whose radius at that point is North 17 degrees 05 minutes 20 seconds West; THENCE northeasterly along the southeasterly side of said road (and following the arc of said curve), 109.10 feet to a stake; THENCE still along the southeasterly side of said road, North 47 degrees 53 minutes 10 seconds East, 36.51 feet to a stake marking a point of curve to the right whose radius is 299.92 feet and the direction of whose radius at that point is South 42 degrees 06 minutes 50 seconds East; THENCE northeastwardly along the southeasterly side of said road (and following the arc of said curve), 148.75 feet to a stake; THENCE still along the southeasterly side of said road, North 76 degrees 18 minutes 10 seconds East, 109.34 feet to a stake marking a point of curve to the right whose radius is 75.37 feet and the direction of whose radius at that pont is South 13 degrees 41 minutes 50 seconds East; THENCE eastwardly along the southerly side of said road (and following the arc of said curve), 86.68 feet to a stake set at the intersection of the southerly side of said road with the southwesterly side of another road forty feet wide; THENCE southeasterly along the southwesterly side of said road (and following the arc of a curve to the right whose radius is 490.60 feet and the direction of whose radius at that point is South 52 degrees 12 minutes 47 seconds West), 50.02 feet to a stake; THENCE South 63 degrees 56 minutes 00 seconds West, 74.21 feet to a stake; THENCE South 24 degrees 45 minutes 50 seconds West, 341.39 feet to an iron pipe; THENCE North 48 degrees 32 minutes 45 seconds West, 354.03 feet to the stone monument at the point or place of BEGINNING. DEED OF CONSERVATION EASEMENT TillS DEED OF CONSERVATION EASEMENT, is made on the (ih>daY of SVA.~, 2003 at Southold, New York. The parties are Frances E. Nielsen residing at 925 Park Avenue, New York, NY 10025 (herein called "Grantor"), and the TOWN OF SOUTHOLD, a Municipal Corporation, having a principal office at 53095 Main Road, Southold, NY 11971 (herein call "Grantee"). INTRODUCTION WHEREAS, Grantor is the owner in fee simple of 3.62 acres of certain real property located at Fishers Island in the Town of Southold, Suffolk County, New York, more fully described in SCHEDULE A, attached hereto, made a part hereof, and hereinafter referred to as the "Property"; and WHEREAS, the Property and has a yield of two (2) single-family residences and is located within the Fishers Island Development Corporation district of the Town of Southold and is further described as Block 8, Lots 7 and 8 on the Map of Fishers Island Development Corporation, which Map was filed in the Office of the Suffolk County Clerk on September 25, 1991 as Map No. A421; and WHEREAS, the Property has approximately 713 feet of road frontage and overlooks the Block Island Sound and Fishers Island Sound, offering a significant vistas of scenic, open space; and WHEREAS, as open space and woodland, the Property offers significant vistas from Block Island Sound and Fishers Island Sound; and WHEREAS, the Property consists of open meadow and woodland and is contiguous to environmentally sensitive wetlands; and WHEREAS, it is the policy of the Town of Southold, as articu!ated in the Town's Master Plan of 1973, amended in 1986 and 1989 as adapted by the Town Board, Town of Southold code, Section 272-a of the Town Law, to protect environmentally sensitive areas, to protect the scenic, open space character of the Town and to protect the Town's resort economy; and WHEREAS, the protection of this Property is part of a broader plan to protect additional open space, woodland and wetlands located at Fishers Island; and WHEREAS, the Property in its present scenic and open space condition has substantial and significant value as an aesthetic and agricultural resource by reason of the fact that it has not been subject to any extensive development; and WHEREAS, Grantor and Grantee recognize the value and special character of the region in which the Property is located, and Grantor and Grantee have, in corrnnon, the purpose and objective of protecting and conserving the present state and inherent, tangible and intangible values of the Property as an aesthetic, natural, and scenic resource; and WHEREAS, Grantee has determined it to be desirable and beneficial and has requested Grantor, for itself and its successors and assigns, to grant a Conservation Easement to 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. 0.02 Grantee's Status Grantee warrants and represents to Grantor that Grantee is a municipal corporation organized and existing under the laws of the State of New York and authorized under Section 64 of the New York Town Law and Section 247 of the New York General Municipal Law to acquire fee title or lesser interests in land, including development rights, easements, covenants, and other contractual rights, which may be necessary or desirable for the preservation and retention of open spaces and natural or scenic resources. 0.03 Prn:pose The parties recognize the scenic, open space and agricultural values of the Property and have the corrnnon 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 its open space character in perpetuity for its environmental, scenic, agricultural and natural values, by preventing the use or development of the Property for any purpose or in any manner contrary to the provisions hereof, in furtherance of federal, New York State and local conservation policies. 0.04 Government Reco~ition 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. 2 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, and that the Property satisfies the criteria adopted by Grantee relating to the quality and characteristics of open land that should be protected and maintained as open land as determined by the Southold Town Board at a duly constituted meeting of that Board on December 3, 2002. 0.06 Documentation Grantee acknowledges by acceptance of this Easement that historical and present uses of the Property are compatible with the purposes of this Easement. Grantor has made available to Grantee sufficient documentation to establish the condition of the Property at the time of the gift of this Easement. In order to aid in identifying and documenting the present condition of the Property's scenic, agricultural and aesthetic resources and otherwise to aid in identifying and documenting the Property's open space values as of the date hereof, to assist Grantor and Grantee with monitoring the uses and activities on the Property and ensuring compliance with the terms hereof, Grantee has prepared, with Grantor's cooperation, an inventory of the Property's relevant features and conditions (the "Baseline Documentation"). This Baseline Documentation includes, but need not be limited to, a Conservation Easement Map and photographs of the Property and an acknowledgment page signed by Grantor and Grantee which verifies that the Baseline Documentation report accurately represents the condition of the Property at the time of the easement. Grantor and Grantee acknowledge and agree that in the event a controversy arises with respect to the nature and extent of the Grantor's uses of the Property or its physical condition as of the date hereof, the parties shall not be foreclosed from utilizing any other relevant or material documents, surveys, reports, photographs, or other evidence to assist in the resolution of the controversy, but it shall be the burden of the party seeking to utilize any such additional documentation or information to establish by clear and convincing evidence, that the Baseline Documentation was inaccurate or incomplete in some material respect. 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 instrument conveys a Conservation Easement (herein called the "Easement"). This Easement shall consist of the covenants, restrictions, rights, terms, and conditions recited herein. 3 Reference to this "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 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, Grantor's agents, tenants, occupants, heirs, personal representatives, successors and assigns and all other individuals and entities. The word "Grantor" when used herein shall include all of those persons or entities. Any rights, obligations, and interests herein granted to Grantee shall also be deemed granted to each and every one of its subsequent agents, successors, and assigns, and the word "Grantee" when used herein shall include all of those persons or entities. ARTICLE TWO GIFT Grantor, as an absolute gift, hereby grants, releases and conveys to Grantee, this Easement, in perpetuity, together with all rights to enforce it. Grantee hereby accepts this Easement in perpetuity, and undertakes to enforce it against Grantor, Grantor's agents, tenants, occupants, heirs, personal representatives, successors and assigns and all other individuals and entities. 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 Except as provided in Section 4.05, (a) the construction or placement of residential, corrnnercial, industrial or other buildings, structures, or improvements of any kind or nature (including, but not limited to mobile homes), permanent or temporary, on, over, or under the Property, shall be prohibited, and (b) structures and improvements, including, but not limited to, driveways and agricultural structures, may not be made on, over, or under the Property without 4 the prior written consent of the Grantee which shall be granted if the structure or improvement does not defeat or derogate the purposes of this Easement. 3.02 Excavation and Removal of Materia1s: Mining The excavating or filling of the Property, except as may be necessary to construct and maintain pennitted structures and improvements on the Property (including underground utilities), shall be prohibited without the prior written consent of Grantee, which shall not be withheld if the activity, structure or improvement does not defeat or derogate from the purposes of this Easement. Mineral exploitation, and extraction by any method, surface or subsurface, is prohibited. The removal of topsoil, sand, or other materials shall not take place, nor shall the topography of the Property be changed except to construct and maintain the pennitted structures and improvements on the Property and for purposes of erosion control and soil management. The removal of topsoil, sand, or other materials shall not take place on the Property, nor shall the topography of the Property be changed without the prior written consent of Grantee, which shall not be withheld if the activity, structure, or improvement does not defeat or derogate the purposes of this Easement. 3.03 Subdivision There shall be no further subdivision, division or partitioning of the Property, but Grantor shall be entitled to merge the Property with the adjoining residential parcels known at Block 8, Lots 6 and 6A. 3.04 Dumping The dumping or accumulation of unsightly or offensive materials including, but not limited to trash, garbage, sawdust, ashes or chemical waste on the Property shall be prohibited. 3.05 Signs The display of signs, billboards, or advertisements shall be prohibited, except signs whose placement, number, and design do not significantly diminish the scenic character of the Property and only for any of the following purposes: (a) to state the name of the Property and the names and addresses of the occupants, (b) to temporarily advertise the Property or any portion thereof for sale or rent, (c) to post the Property to control unauthorized entry or use, or (d) to announce Grantee's conservation easement or any public hearings, etc.. Signs shall not be more than six square feet in size and are subject to regulatory requirements of the Town. 3.06 Cutting ofTirnber The cutting or harvesting of timber on the Property shall be prohibited, except for the following purposes: (a) to clear and restore forest cover that has been damaged or disturbed by forces of nature, (b) to prune and selectively thin trees to maintain vistas consistent with the Conservation Easement map constituting a part of the Baseline Documentation, and (c) to 5 construct and maintain the pennitted structures and improvements on the Property with the prior written consent of the Grantee. 3.07 Soil and Water Except as allowed in Article Four herein, any use or activity that causes or is likely to cause soil degradation or erosion or pollution of any surface or subsurface waters shall be prohibited; provided that this prohibition shall not be construed as extending to agricultural operations and practices (including, without limitation, the use of agrochemicals such as fertilizers, pesticides, herbicides, and fungicides) that are in accordance with sound agricultural management practices of the USDA Soil Conservation Service. For purposes of this Section 3.07, "agricultural operations and practices" shall include the maintenance of the existing lawn area and shrubs on the Property. 3.08 Landscaping Activities The removal of trees, shrubs, or other vegetation from the Property shall be prohibited except as provided in Section 3.06 and Section 4.04. 3.09 Utilities Except as reasonably necessary in conjunction with the construction of allowable residential improvements pursuant to Section 4.05.A., the creation or placement of overhead utility transmission lines, utility poles, wires, pipes, wells or drainage and septic systems on the Property shall be prohibited without the prior written consent of the Grantee, which consent shall be granted if the creation or placement does not defect or derogate the purposes of this Easement. 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 pennitted structures. Overhead utilities as they presently exist are not prohibited. 3.10 Uses The use of the Property for any commercial, commercial-recreational or industrial purpose shall be prohibited. 3.11 Drainage The use of the Property for a leaching or sewage disposal field shall be prohibited, except to service the permitted structures or structures located on adjacent Block 8, Lots 6 and 5A. The use of the Property for a drainage basin or sump shall be prohibited, except in accordance with sound agricultural management practices and in order to control flooding or soil erosion on the Property. 6 3.12 Development Rights The use of the acreage of this Property for purposes of calculating lot yield on any other Property shall be prohibited. Except as to Grantor's retained development rights under Article Four, Grantor hereby grants to Grantee all remaining 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 the provisions of ARTICLE THREE, Grantor shall retain all other customary rights of ownership in the Property, some of which are more particularly descnbed in this ARTICLE FOUR. 4.02 Possession Grantor shall continue to have the right to exclusive possession of the Property. 4.03 Use Grantor shall have the right to use the Property in any manner and for any purpose consistent with and not prohibited by this Easement as well as applicable local, New York State, or federal law. 4.04 Landscaping Activities Grantor shall have the right to continue the current 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, decayed or damaged. Grantor shall have the right to remove trees, shrubs or other vegetation reasonably necessary to maintain existing views from the adjacent residence. 4 05 Structures A Allowable Residential Improvements 7 Subject to the last sentence of this Section 4.05.A., Grantor shall have the right to construct a swimming pool and tennis court as well as access drives and underground facilities used to supply utilities, septic systems, leaching fields, and drainage systems, and to control storm-water runoff, all as reasonably necessary to serve the adjacent residence located on Block 8, Lots 6 and 6A. Grantor shall have the right to remove trees, shrubs, or other vegetation reasonably necessary to construct or replace such structures and improvements. Any swimming pool or tennis court constructed pursuant to this Section 4.05.A. shall be placed only in those portions of the property that consist primarily ofmaiotained lawn and shrubs. B. Fences Fences, if they are placed so that they do not block or detract from the scenic view from adjoining roads or other places open to the public, may also be constructed without the prior written consent of Grantee. C. Replacement of Structures In-Kind In the event of damage resulting from casualty to an extent which renders repair of any existing improvements impractical on the Property, erection of a structure of comparable size, bulk, use, and general design to the damaged structure shall be permitted within the same general location subject to the review and written approval of Grantee. D. Environmental Sensitivity During Construction The use and location of any improvement permitted to be constructed hereunder shall be consistent with the conservation purposes intended herein, and construction of any such improvement shall minimize disturbances to the environment. Grantor shall employ erosion and sediment control measures to insure that storm water runoff will not carry eroded and other deleterious materials into the Block Island Sound or other wetland areas, including but not limited to minimal removal of vegetation, minimal movement of earth and minimal clearance of access routes for construction vehicles. 4.06 Notice Grantor shall notifY Grantee, in writing, before taking any action or before exercising any reserved right with respect to the Property which could adversely affect the environmental, scenic, open space and agricultural values which are the subject of this Easement, it being understood that, so long as Grantor complies with Section 4.05.A., no construction activities permitted thereunder shall be deemed to adversely affect such values. This includes the construction of fences as provided in Section 4.05.B herein. Grantor shall provide Grantee with complete documentation including information on the need for and use of such structures, and architectural plans of any proposed structures which are subject to Grantee's approval. Such 8 approval, disapproval or connnents of Grantee shall be given to Grantor within 45 days after all necessary documentation and information is submitted to Grantee. If Grantee fails to respond within 45 days, Grantor shall send, by registered or certified mail, returned receipt requested, additional notice to Grantee requesting approval. Grantee shall have 10 days from receipt of such notice to respond. If Grantee fails to respond in writing within the required 10 days, Grantor shall deem Grantee's failure to respond as an approval. Whenever an action by Grantor requires the approval of Grantee, it is understood Grantor must also obtain any required governmental approvals for the action. 4.07 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 name and mailing address of any grantee, and the individual principals thereof, under any such conveyance. The instrument of any such conveyance shall specifically set forth that the interest thereby conveyed is subject to this Easement, without modification or amendment of the terms of this Easement, and shall incorporate this Easement by reference, specifically setting 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 ten 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 charged by Citibank, N.A. 5.02 Indemnification Grantor shall indemnifY and hold Grantee harmless for any liability, costs, attorneys' fees, judgments or 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, 9 levies or assessments upon it or resulting from this Easement, all of which shall be considered Grantor's obligations. Grantor shall not indemnify Grantee for any liability to the extent the same is attributable to the acts of Grantees' officers, employees, agents or independent contractors. 5.03 Third Partv Claims Grantor shall indemnify and hold Grantee harmless for any liability, costs, attorneys' fees, judgments, or 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 to the extent the same are attributable 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, except to the extent any of those matters are attributable to 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 Property at reasonable times, upon prior notice to Grantor, and in a manner that will not interfere with Grantor's quiet use and enjoyment of the Property, for the purpose of inspection to determine whether this Basement 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. 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 Grantee may reasonable deem necessary. However, Grantor shall not be liable for any changes to the Property resulting from causes beyond the Grantor's control, including, without limitation, fIre, flood, storm, and earth movement, or from any prudent action taken by the Grantor under emergency conditions to prevent, abate, or mitigate signifIcant injury to persons or to the Property 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, 10 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 preserve and protect any of the open space values or otherwise to further the purposes of this Easement), Grantee shall have the right at Grantor's sole cost and expense and at Grantee's election, (i) To institute a suit to enjoin or cure such breach, default or violation by temporary and/or permanent injunction, (ii) To enter upon the Property and exercise reasonable efforts to terminate or cure such breach, default or violation and/or to cause the restoration of that portion of the Property affected by such breach, default or violation to the condition that existed prior thereto, or (iii) To seek or enforce such other legal and/or equitable relief or remedies as Grantee deems necessary or desirable to ensure compliance with the terms, conditions, covenants, obligations and purposes of this Easement; provided, however, that any failure, delay or election to so act by Grantee shall not be deemed to be a waiver or a forfeiture of any right or available remedy on Grantee's part with respect to such breach, default, or violation or with respect to any other breach, default or violation of any term, condition, covenant or obligation under this Easement. Grantor shall pay, either directly or by reimbursement to Grantee, all reasonable attorneys' fees, court costs and other expenses incurred by Grantee in connection with any proceedings under this Section. 6.05 No Waiver Grantee's exercise of one remedy or relief under this ARTICLE SIX shall not have the effect of waiving or limiting any other remedy or relief, and the failure to exercise or delay in exercising any remedy shall not 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. 6.06 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 a successor Grantee must require the Assignee or Assignee's successors to carry out the purposes 11 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 Section 6.06. 6.07 Succession If at any time Grantee or any Assignee is unable to enforce this Easement, or if Grantee or any Assignee ceases to exist, then this Easement shall be vested in such qualified corporation, body or agency as defined and upon the conditions contained in 6.06 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 another qualified organization, in accordance with a cy pres proceeding brought in any court of competent jurisdiction. 6.08 Extinguishment This Easement gives rise to a property right and interest immediately vested in the Grantee. For purposes of this Section 6.08, 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"). This is subject to an adjustment to the extent permissible under section l70(h) of the Internal Revenue Code for any improvements which may hereafter be made to the Property. It is agreed between the Grantee and Grantor that any such improvements made to the Property after the date of this Easement are not to be considered in any calculation under this paragraph, nor shall Grantee have (any Property rights) in any said improvements. In the event a material and potentially unforeseeable change in the conditions surrounding the Property makes impossible its continued use for the purposes contemplated hereby, resulting in an extinguishment of this Easement by a judicial proceeding, Grantor shall pay to Grantee an amount equal the Proportionate Share of the fair market value of the Property at such time.(not including improvements since the date hereof). In the event of a sale by Grantor to an unrelated person subsequent to such extinguishment, or a transfer made on account of the exercise of the power of eminent domain, the sale price or condemnation award shall establish fair market value. Absent such a sale, the Property's fair market value shall be established by independent appraisal. 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 purposes 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 the Proportionate Share (not including improvements since 12 the date hereof) of the remaining recovered proceeds. 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 6.08 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 is made with the intention that it shall qualify as a Conservation Easement in perpetuity under Internal Revenue Code Section l70(h). The parties agree to amend the provisions of this Easement if such amendment shall be necessary, to entitle Grantor to meet the requirements of Code Section l70(h). Any such amendment shall apply retroactively in the same manner as if such amendment or amendments had been set forth herein. This Easement can be terminated or modified 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. Grantee and Grantor shall mutually have the right to agree to amendments to this Easement that are not inconsistent with the purposes 0 f 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 l70(h) of the Code governing "qualified conservation contributions". The parties acknowledge that the boundaries of the Property may have to be adjusted to accommodate the Town of Southold if the Property is subdivided or merged as permitted hereby, and the parties agree to cooperate in such boundary line adjustments as permitted, provided said adjustments would not result in diminution of the Property or an increase in the number oflots to be developed by the Grantor. 13 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 that is determined to be invalid or unenforceable by a court shall be severed from the other provisions, which shall remain enforceable and effective. 7.04 Notice All notices required by this Easement must be written. Notices shall be delivered by hand or registered mail, return receipt requested, or by certified mail, with sufficient prepaid postage affixed and with return receipt requested. Mailed notice to Grantor shall be addressed to Grantor's address as recited herein, or to such other address as Grantor may designate by notice in accordance with this Section 7.04, or in the case of subsequent owners of the Property, to the address of the current owner per the tax roll. Mailed notice to Grantee shall be addressed to its principal office, recited herein, marked for the attention of the Supervisor, or to such other address as Grantee may designate by notice in accordance with this Section 7.04. Notice shall be deemed given and received as of the date of its manual delivery or the date of its mailing. 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 Intewretation 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, at least one of which would render that provision valid, then that provision shall be given such interpretation as would render it valid and be consistent with the purposes of this Easement. Any rule of strict construction designed to limit the breadth of the restrictions on use of the Property shall not apply in the construction or interpretation of this Easement, and this Easement shall be interpreted broadly to effect the purposes of this Easement as intended by the parties. The parties intend that this Easement, which is by nature and character primarily negative in that Grantor has restricted and limited his right to use the Property, except as otherwise recited herein, be construed at all times and by all parties to effectuate its purposes. 7.07 Public Access Nothing contained in this Easement grants, nor shall be interpreted to grant, to the public any right to enter upon the Property. 14 7.08 Warranties The warranties and representations made by the parties in this Easement shall survive its execution. 7.09 Recording Grantee shall record this Easement in the land records of the office of the Clerk of the County of Suffolk, State of New York. 7.10 Headings The headings, titles and subtitles herein have been inserted solely for convenient reference, and shall be ignored in its construction. 15 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 TOWN OF SOUTHOLD STATE OF NEW YORK ) COUNTY OF SUFFOLK) SS: ~~ Lh~ / Notary Public On this Js day of ::r ~ in the year 2003 before me, the undersigned, personally appeared Frances E. Nielsen, 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, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument. NELlINE RUBINO Notary Public, State of New York No. 24-4929261 Qualified in K;ngs County Commission Expires May 31, 20 Dc" STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS On this .9/ day of L)w!r: in the year 2003 before me, the undersigned, personally appeared Joshua Horton, per nally 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 16 acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument. ilu ;J~l~ Notary Public VICTORIA CHARCZUK Notary Public, State of New York No. 4850488 ,au.alified in Nassau County A1 Commission Expires January 20, 20 ~ SCHEDULE A: Metes and Bounds Description of the Property 17 1111111111111111111111111111111111111 111111111111111111 1111111111111111111111111 SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument: EASEMENT/DOP Number of Pages: 21 TRANSFER TAX NUMBER: 03-02470 Recorded: At: LIBER: PAGE: 08/20/2003 11:27:22 AM D00012267 561 District: 1000 Section: 005.00 EXAMINED AND $0.00 Block: 01. 00 CHARGED AS Lot: 008.000 FOLLOWS Deed Amount: Received the Following Fees For Above Instrument Exempt Exempt Page/Filing $63.00 NO Handling $5.00 NO COE $5.00 NO NYS SURCHG $15.00 NO TP-584 $5.00 NO Notation $0.00 NO Cert.Copies $0.00 NO RPT $30.00 NO SCTM $0.00 NO Transfer tax $0.00 NO COIllIn.Pres $0.00 NO Fees Paid $123.00 TRANSFER TAX NUMBER: 03-02470 THIS PAGE IS A PART OF THE INSTRUMENT Edward P.Romaine County Clerk, Suffolk County ---- -------- _h - -1 I~~( s~p-~- ::~~ To\\'r',) AtTOr-;1--.'[~\-'r: OFFiCf TO\".' {'i~ ;:/_ ! !;}.I:"i:. () G~ 2 , Number of pages dl r.:'F:-'~:OJ:::'!':E[; TOHRENS '-'r! "-,^ ~,'1 ~: ~-r, _"-, ,"j I:' _, F'c'r:;.~ j, ne Serial # CLERK OF SUFFOLk Cc!ljt.~TP.,.' Certificate # i_ C:{!(H] 12267 F' 561 Prior Ctf. # '.:TM: 03--(12470 Deed / Mortgage Instrument Deed / Mortgage Tax Stamp Recording / Filing Stamps 4 FEES Page! Filing Fee [;3 '5' S Mortgage Amt. Handling TP-S8~ I. Basic Tax 2. Additional Tax Notation Sub Total EA-52 17 (County) Sub Total 73 Spec.! Assit. Or Spec. ! Add. EA-S217 (State) COI1Ull. of Ed. SO~ R.P.T.S.A. ~- 60 )D TOT, MTG. TAX Dual Town Dual County Held for Apportionment Transfer Tax ~ Mansion Tax The property covered by this mortgage is or will be improved by a one or two family dwelling only. YES or NO If NO, see appropriate tax clause on page # of this instrument. Affidavit Certified Copy Reg. Copy j :5"- Sub Total Other Stamp Real Property Tax Service Agency Verification Dist. Section R lork , ~.. 03031257 1000 00500 0100 008000 7 - Satisfactions/Discharges/Releases List Property Owners Mailing Address HECORD & HETUHN TO: 6 Community Preservation Fund Consideration Amount $ <<< CPF Tax Due $ ~ '" Date Improved Initials Vacant Land V In TO TO TO. !bwn DF C;~v-r),.,'OJd a .Hlt-C ot=- TolA.J1'> ft1To~ne-'-7 5'30 '1" FnPI/'; i'~ f ~ou-rl)oJd.lA.JY lJo,1/ Title # 8 Title Company Information -Itt.. +J'll /IT/ to. :'::h, '3-S'-O'1'}~ & Endorsement Pa e C:Il 9 Suffolk COlmt Recordin 'Illis page forms pari of the attached \)"rd ,,+- r.onStrIJAT/()r) tASt.J7?-vJ f made by: (SPECIFY TYPE OF INSTRUMENT ) 't/lH/'JCd L )Jie/st.r, The'premises herein is situated in SUFFOLK COUNTY, NEW YORK Tl? fA) n TO o/'- ~l'J(/7ho/rI In the Township of In the VILLAGE or HAMLET of So v..,..h~lrI BOXES 5 THRU 9 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FII .