HomeMy WebLinkAboutExxon Mobil (Widow's Hole Preserve)SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT
N~mber of Pages: 39
Receipt Number : 13-0006525
TRANSFER TAX NUMBER: 12-13269
District:
1001
Deed Amount:
Recorded:
At:
LIBER:
PAGE:
Section: Block:
007.00 05.00
EXAMINED AND CHARGED AS FOLLOWS
$0.00
Received the Following Fees For Above Instrument
Exempt
Page/Filing $195.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert.Copies $0.00 NO RPT
Transfer tax $0.00 NO Comm. Pres
Fees Paid
TRANSFER TAX NUMBER: 12-13269
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
JUDITH A. PASCALE
County Clerk, Suffolk County
os/16/2o13
03:57:17 PM
D00012717
622
Lot:
019.000
$20 O0
$15 oo
$0 oo
$60 O0
$o oo
$300 oo
Exempt
NO
NO
NO
NO
NO
record. Please remove all
Social Security Numbers
prior to recording.
RECORDED
2013 Jan 16 03:57:17 PM
JUDITH A. PflSCRLE
CLERK OF
SUFFOLK COUNTY
L D00012717
P 622
OT~ 12-1~269
Deed/Mo~gagelnstrument Deed/MortgageTax Stamp I Recording/Filing Stamps
FEES
g 20. 00
~'no n
EA-52 17 (County)
EA~5217 IState)
R.P.T.S,A. ~ ~
Comm. of Ed. S. 00
Affidavit
Certified Copy
NYS Surcharge 15. 00
Other
4 I Dist.
Real Property
Tax Service
Agency
Verification
Satisfacti,
6
8
SubTotal ~(--~
Sub Total "
Grand Total
1001] Section ? I Block 5 I Lot 19
i2030933 ~.oo~. oo?oo o5oo oz~ooo
...... ncu~J~u'~ Kt-I OliN TO~
Kimberly Quafly
Peconic Land Trust, Incorporated
P.O. Box 1776
296 Hampton Road
Southampton, New York 11969
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec./Assit.
or
Spec./Add.
TOT. MTG. TAX
Dual Town __ Dual County __
Held for Appointment~
Ira nsfer 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 if __ of this instrument.
5 Community Preservation Fund
Consideration Amount $
CPF Tax Due $
Improved__
/ w777-
TD{ ~
TD
TD
Mail to: Judith A, Pascale, Suffolk County Clerk I 7 ]
310 Center Drive, Riverhead, NY 11901IC°'Name
www.suffolkcountyny.gov/clerk I Title #
Title Company Information
First American Title Ins. Co.
NCS-421056-HOUI
Suffolk County Recording & Endorsement Page
This page forms part of the attached Deed of Conservation Easement
by:
ExxonMobil Oil Corporation
(SPECIFY TYPE OF INSTRUMENT)
The premises herein is situated in
SUFFOLK COUNTY, NEW YORK.
TO IntheTOWN of Southold
Town of $outhold In the VILLAGE
or HAMLET of Greenport
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR F~LING.
made
[over)
DEED OF CONSERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT (hereinafter referred to as this
"Deed" or "Easement" or "Conservation Easement"), is made the ~ day of
~ 2012 ("Effective Date"), at Southold, New York, between ExxonMobil Oil
Corporation, a corporation of the State of New York, having a principal address of 3225
LGalIows Road, Fairfax, Virginia 22031 (herein called "EMOC' or "Grantor"), and the Town of
Southold, a municipal corporation of the State of New York, having a principal address of
53095 Main Road, P.O. Box 1179, $outhold, New York 11971 (herein called "Grantee").
INTRODUCTION
WHEREAS, Grantor is the sole owner in fee simple of 2 acres, more or less, of certain
real property located in the Village of Greenport, Town of Southold, Suffolk County, New York,
more fully described in SCHEDULE A and shown on the Conservation Easement Map marked
EXHIBIT A, both attached hereto and incorporated herein by this reference (hereinafter referred
to as the "Property"); and
WHEREAS, 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, Section
247 of the New York General Municipal Law, and Sections 185 and 17 of Local Southold Town
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, and a governmental
unit described in Section I70(b)(1)(A)(v) of the Internal Revenue Code of 1986 (the "Code") as
amended, and the regulations thereunder, and is therefore a "qualified organization" within the
meaning of Section 170(h)(3) of the Code; and
WHEREAS, the Property is free of any mortgages or liens, Grantor possesses the right to
grant this Easement; and this Easement was approved by EMOC management on July 18, 2012;
and
WHEREAS, the Property (i) is located in the R-2 Zoning District of the Village of
Greenport as outlined in Section 150-3 of the Village Code which allows, inter alia, as a
permitted use one-and two-family residence, (ii) may therefore in the absence of this Easement
be subdivided and developed into a greater number of residential lots which would destroy the
Property's conservation values described below, and (ii) is further identified as SCTM # 1001-7-
5-19; and
WHEREAS, Grantor wishes to grant a conservation easement on the Property so that the
Property shall remain in its open, undeveloped, and scenic state; and
WHEREAS, the Property possesses significant shoreline wetlands and relatively natural
adjacent upland habitat, as well as scenic, recreational and educational values (collectively, the
"Conservation Values") of great importance to Grantor, Grantee, and the people of the Village
of Greenport, Town of Southold, Suffolk County and State of New York; and
WHEREAS, the Conservation Values protected by the terms of this Easement include
the following:
A. Preservation of land areas for outdoor recreation by, or the education of, the
general public. The protection of the Property through this Easement is consistent with
the requirements of Section 170(h)(4)(A)(i) of the Code for the following reasons:
(1) regular public access to the Peconic Estuary, from the end of Fourth Street
to the waterfront part of the Property, will provide opportunities for the
public to participate in passive outdoor recreation activities (e.g. walking,
fishing, non-motorized boating); and
(2) ecological restoration and the protection of significant relatively natural
habitat on the Property will provide educational and natural history
opportunities for the general public.
B. 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 Section 170(h)(4)(A)(ii) of the Code for the
following reasons:
the Property is composed of approximately 0.4 acres of intertidal estuarine
wetlands, including sand beach, as determined by the United States Fish and
Wildlife Service National Wetlands Inventory based on aerial photography
taken in 2004, and appro, ximately 1.6 acres of adjacent upland which will be
restored to native maritime grassland, a rare and declining vegetation
community on Long Island; and
(2)
the Property is part of the Peconic Estuary System which was included in the
National Estuary Program by determination of the United States
Environmental Protection Agency on September 9, 1992, as a "nationally
significant estuary"; and
(3) the Peconic Estuary Program Habitat Restoration Plan (p.24), 2000, states:
(4)
a. "Tidal wetlands constitute some of the most diverse and biologically
productive habitats of the coastal region.", providing nesting and
foraging habitat for birds, spawning habitat for finfish and shellfish,
and performing the ecosystem functions of sediment trapping,
nutrient and organic matter cycling, flood conveyance, and reduction
of wave energy during storms; and
b. Beaches and dunes provide important nesting habitat for shorebirds,
turtles and crabs, and foraging habitat for birds-of-prey, and are
critical for protecting adjacent terrestrial areas from flooding and
erosion during high tides and storms; and
c. Coastal grasslands provide breeding and foraging habitat for
grassland birds, including declining species such as Savar~nah
sparrow (Passerculus grarnineus) and song sparrow (Melospiza melodia),
and foraging habitat for birds-of-prey; and
d. Coastal forest communities provide habitat for many plants, animals,
and insects, including declining and rare species, and play an
important role in groundwater recharge and filtration, soil
stabilization, nutrient cycling from decomposing vegetation, and
retention of stormwater runoff; and
the Peconic Estuary Program Comprehensive Conservation and
Management Plan, adopted November 15, 2001, includes the following
measureable goals:
a. Continue and expand open space acquisition programs (measured by
funding appropriated and acres acquired in target areas); and
b. Maintain current linear feet of natural shoreline and over the next 15
years reduce shoreline hardening structures by 5 percent; and
c. Maintain and increase current tidal and freshwater marsh acreage,
and restore areas that have been degraded (e.g., restricted flow,
Phragrnites australis dominated, hardened shoreline); and
(5) the Peconic Estuary Program Top Priorities, established in 2010 pursuant to
the Comprehensive Conservation and Management Plan, adopted November
15, 2001, include:
a. Develop and implement a strategy to minimize shoreline hardening
structures that results in no net increase of such structures and
protects natural shorelines; and
b. Restore habitats, including projects identified in the habitat
restoration plan, wetlands, and fish passage; and
c. Implement a comprehensive invasive species management initiatiye,
including research, public outreach, and removal/eradication; and
d. Develop and implement an initiative to protect and restore vegetative
buffers; and
e. Protect priority open spaces through direct acquisition and other
means; and
(6)
within the Peconic Estuary over 90 separate areas have been designated as
significant coastal fish and wildlife habitats by the New York State
Department of State; and
(7)
the Peconic Estuary is a significant recreational and commercial resource for
Long Island residents and visitors, with over 1, I00 East End Long Island
businesses considered "estuarine dependent" (Peconic Estuary Program
Comprehensive Conservation and Management Plan, Ch 7-7); and
(8) the Peconic Estuary is one of The Nature Conservancy's designated "Last
Great Places" in the western hemisphere; and
(9)
Major threats to the Peconic Estuary include nutrient over-enrichment and
introduction of pathogenic organisms through stormwater runoff, terrestrial
and marine habitat fragmentation and loss, and loss of open space to
residential development; and
(10) this Easement aids in the protection and maintenance of the estuary by
restricting the development of the Property to preserve established wetlands
and the ecosystem services they provide the public.
C. 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
4
public benefit, and is therefore consistent with the requirements of Section
170(h)(4)(A)(iii)(I) of the Code for the following reasons:
the Property has a total of 600 feet of frontage on the publicly
accessible/publicly passable/navigable Peconic Estuary, which offers the
public significant scenic vistas of and across the Property; and
(2)
the Property has a combined total of 600 feet of frontage on Clark Street and
Fourth Street, which offers the public significant scenic vistas from a public
roadway of and across the Property; and
(3)
the Property offers the public significant scenic vistas from the public
Greenport - Shelter Island Ferry of and across the property, and a view of the
Property from Shelter Island; and
(4)
the Property is unique to the area in its current scenic and open-space
condition and has substantial and significant value as an aesthetic resource
because of its relatively natural condition while surrounded by residential
homes with heavily manicured landscapes and hardened or altered
shorelines, which limit the public's enjoyment of the Peconic Estuary
shoreline, such that the Property's scenic open space values are increasingly
unique to the area.
D. Preservation of open space pursuant to clearly delineated Federal, State and local
governmental conservation policy, which yields significant public'benefit. Protection of
the Property's open space through this Easement is pursuant to clearly delineated
governmental conservation policy and will yield significant public benefit, and is
therefore consistent with the requirements of Section 170(h)(4)(A)(iii)(II) of the Code for
the following reasons:
Village of Greenport:
(1)
the Property is designated "for park and open space use" in the Village of
Greenport Local Waterfront Revitalization Program, approved by NYS
Secretary of State GaiI L. Shaffer on November 11, 1988; and
(2)
the Property is located within the Village of Greenport coastal area
boundary, Waterfront Area 3, and a goal of the Village of Greenport Local
Waterfront Revitalization Program is "to provide for continued and
expanded public access to the waterfront"; and
5
(3) Policy 13A of the Village of Greenport Local Waterfront Revitalization
Program states that "Bulkheading of remaining undeveIoped shoreline areas
in the Village is strongly discouraged," to prevent further deterioration of the
shellfish industry due to the loss of valuable wetlands from intensive
bulkheading and development of shoreline; and
Town of Southold:
(1)
the Property, which is located on the Peconic Estuary in the Town of
Southold, contains approximately 0.6 acres of designated tidal wetlands that
should be preserved pursuant to Section 275-3C of the Code of the Town of
Southold, for the purpose of protecting, preserving, and maintaining the
Town's wetlands for the protection of its citizens; and
(2)
it is the policy of the Town of Southold, articulated in the Town's Master Plan
of 1973, amended in 1986 and 1989 as adopted by the Town Board, Town of
Southold Code, Section 272-a of the Town Law, to protect environmentally
sensitive areas, to preserve prime agricultural soils, to protect the scenic and
open space character of the Town and to protect the Town's resort and
agricultural economy; and
(3)
The acquisition of open space, if preserved and maintained in its present
open state, is in the public interest and a proper purpose of the Town as set
forth in the Town of Southold Code Section 185-2; and
(4)
The acquisition of interests or rights in real property for the preservation of
community character within the Town, including the portion of any Village
therein, is in accordance with Town Code Section 17-6A(2).
New York State Legislation:
(1)
New York State has recognized the importance of private 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
6
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 approximately 0.6 acres of designated tidal wetlands
that should be protected and preserved pursuant to the New York State
Environmental Conservation Law, Article 25 and 6NYCRR Part 661; and
United States EPA Peconic Estuary Program:
(I) the Property is part of the Peconic Estuary System which was included in the
National Estuary Program by determination of the United States Environmental
Protection Agency on September 9, 1992, as a "nationally significant estuary."
Accordingly, protection of the Property is pursuant to clearly delineated governmental
conservation policies and will yield a significant public benefit, and therefore the Easement is
consistent with the requirements of Section 170(h)(4)(A)(iii)(II) of the Code; 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 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 further inappropriate
development of the Property while permitting uses compatible with the protection of the
Property's Conservation Values;
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, and pursuant to the taws of the State of New York and in
particular Title 3 of the New York Environmental Conservation Law, Grantor hereby
voluntarily conveys in perpetuity to Grantee, and Grantee hereby accepts, this Conservation
Easement, 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 and protecting these Conservation Values in perpetuity. This
Conservation Easement is granted by Grantor to Grantee for the purpose of preserving the
Property's open-space character and protecting its Conservation Values in perpetuity
(collectively the "Conservation Purpose") by preventing any use or development of the
Property for any purpose or in any manner contrary to the intent and provisions hereof,
including but not limited to the Conservation Purpose.
0.02 Grantee's Warranty
Grantee warrants and represents that it possesses the resources and commitment to
enforce the terms of this Easement on the Property, and that the Property satisfies the criteria
adopted by Grantee ~:elating to the quality and characteristics of open land whose conservation
values should be protected and maintained, as determined by the Southotd Town Board at a
duly constituted meeting of that Board on March 13, 2012.
0.03 Documentation
Grantee acknowledges by acceptance of this Easement that those uses of the Property
conducted on the Effective Date 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 condition of the Property's natural, wildlife, watershed, scenic, and aesthetic resources and
otherwise to aid in identifying and documenting the Property's Conservation Values as of the
Effective Date, 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") as of the Effective Date. This Baseline Documentation includes a
Conservation Easement Map marked EXHIBIT A attached hereto, an aerial photograph,
photographs of the Property, a topographical map, and a description and site plan of land uses,
features, and structures. The parties hereby acknowledge and verify that the Baseline
Documentation report 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 Grantee. 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 Effective 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
1.01 Type
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. 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 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. 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 permitted agents,
successors, and assigns, and the word "Grantee" when used herein shall include all of those
persons or entities. Grantor and Grantee acknowledge and agree that EMOC intends to convey
title in and to the Property to Peconic Land Trust and that after such conveyance Peconic Land
Trust shall be deemed the "Grantor" herein, except for those duties or obligations (i) retained by
EMOC under the 'terms of this Conservation Easement or (ii) that may be retained by EMOC in
a deed or other legal instrument through which title to the Property is conveyed to Peconic
Land Trust. The conveyance of the Property from EMOC to Peconic Land Trust shall not affect
any rights, including but not limited to any right of re-entry, specifically reserved by or to
EMOC in this Conservation Easement or in the conveyance instrument to Peconic Land Trust,
provided that any such rights shall be exercised in accordance with the terms of this
Conservation Easement.
9
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. Without limiting 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 Purpose of this Easement and, unless otherwise explicitly provided herein, are
prohibited anywhere on the Property.
2.01 Buildings and Structures
Except as 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 notqimited 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; Mining
Mineral exploitation, and extraction of any mineral (including but not limited to soil,
gravel, sand and hydrocarbons), by any method, 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 or as otherwise required by any governmental agency
with competent jurisdiction. Grantor may remove topsoil, sand or other materials for purposes
of erosion control and soil management only with the prior written approval of Grantee unless
such removal is required by any governmental agency with competent jurisdiction.
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 the partition, or otherwise divide the Property into separately conveyable
parcels.
10
2.04 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 is prohibited.
2.05 Signs
The display of any sign, billboard, or advertisement is prohibited, except as expressly
permitted in Article Three below.
2.06 Cutting of Timber
The cutting or harvesting of trees on the Property is prohibited, except as expressIy
permitted in Article Three 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, is prohibited without the prior written consent of Grantee unless such
draining, filling, dredging, or diking is required by any governmental agency with competent
jurisdiction.
2.09 Ponds and Water Courses
The alteration of any water course located on the Property or the creation of any new
water impoundment or water course is prohibited without Grantee's prior written approval,
which approval will not be unreasonably withheld if the alteration or creation is reasonably
necessary for the conduct of sound ecological restoration, recreational and educational
activities, erosion control, and stormwater management, in accordance with Article Three
below.
11
2.10 Landscaping Activities
The removal of any tree, shrub, or other vegetation from the Property is prohibited,
except as expressly permitted in Article Three below.
2.11 Vegetation Management and Screening
The placement of any landscape screening, hedgerow, or any other type of vegetative
screening along Fourth Street and Clark Street is prohibited without the prior written consent of
Grantee.
2.12 Residential, Commercial and Industrial Uses
Any residential, commercial or industrial use of the Property is prohibited, except as
expressly permitted in Article Three below. This prohibition includes, but is not limited to, the
following restrictions:
The Property may not be used for a single- or multi-family residence, residence for
children, the elderly or the infirm, church and place of worship, school, nursery and
other pre-school facility, nursing or convalescent home, hospital, health clinic, or
other medical facility, day-care facility, playground, recreational park, hotel, motel,
bed and breakfast inn, and any other residential, commercial, or industrial use,
including light-intensity industrial and industrial research uses. The construction or
installation of any water supply well, whether for drinking, irrigation, or any other
purpose, on the Property is prohibited. With respect to recreational parks, non-
commercial passive recreational uses are allowed as provided in Section 2.13 below
and Article Three. Notwithstanding the foregoing, Grantor may install public water
facilities for purposes consistent with this Easement if such installation is required or
requested by any governmental agency with competent jurisdiction.
B. No commercial agricultural or silvicultural activities are permitted on the Property.
12
2,13 Recreational Use
Commercial recreational uses, overnight stays and open burning are prohibited. Non-
commercial, passive recreational uses are allowed, which may include the installation of.
structures or improvements, in accordance with Article Three below.
2.14 Utilities
The creation or placement of overhead utility transmission lines, utility poles, wires,
pipes, wells or drainage or septic systems on the Property is prohibited without the prior
written consent of Grantee. The repair or replacement of existing pipes, wells or drainage or
septic systems on the Property is allowed with the prior written consent of Grantee. Overhead
utility transmission, lines on the Property may be used solely to service the structures and
improvements permitted on the Property by this Easement.
2.I5 Drainage
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, with Grantee's prior written approval.
2.16 Development Right~
The use of this Property for the purpose of calculating lot yield or development density
on the Property or any other property, adjacent or otherwise, is prohibited. Grantor hereby
grants to Grantee ail 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), which have not been retained or reserved by Grantor under this
Easement. By Grantee's acceptance of this Easement, the parties agree that such excess
develbpment rights granted by Grantor to Grantee are terminated and extinguished by Grantee,
and may not be used by Grantor or Grantee nor transferred to any other parcels.
t3
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 that is in accord
with existing zonh~g 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 as follows:
3.01 Restoration, Recreation and Education Activities
Grantor shall have the right to engage in or contract with others to engage in any and all
types of restoration, enhancement and protection of the Property's natural resources and
significant relatively natural habitat, passive outdoor recreation, and education of the general
public provided that such activity shall be conducted in accordance with the Conservation
Purpose and other terms and conditions of this Easement. This right includes EMOC's
reservation of the right to initiate a proposal for and to perform restoration and/or mitigation
activities (including approved or required restoration, creation or enhancement) on the
Property subsequent to any divestment of its interest in the Property. Any restoration and/or
mitigation activities (including approved or required restoration, creation or enhancement) on
the Property shall be consistent with the Conservation Purpose and other terms and conditions
of this Easement and shall require prior written approval of Grantee.
3.02 Signs
The display of signs, billboards, or advertisements is prohibited, except for signs whose
placement, number, and design do not significantly diminish the scenic Conservation Values of
the Property and only for any of the following purposes: (a) to state the name and address 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; (d) to announce this Conservation Easement; (e) to announce, advertise or direct
the general public as to the ongoing restoration, recreation and educational activities in
accordance with Section 3.01 above; or (0 to educate the general public as to the ecology of the
area. 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.
14
3.03 Cutting of Timber
The cutting or harvesting of trees on the Property, is prohibited, except for the following
purposes~: (a) to clear and/or restore trees and/or forest cover that are or have been dead,
damaged, diseased or destroyed or non-native and/or invasive; (b) to prune and/or selectively
thin trees to create limited vistas in accordance with good management practices and the
Conservation Purpose of this Easement; (c) to construct and maintain those structures and
improvements expressly permitted under the terms of this Easement; (d) for fencing of the
Property; and (e) to remove hazards to persons or to the Property.
3.04 Landscaping Activities
The removal of trees, shrubs, or other vegetation from the Property is prohibited except
(a) as provided in Section 3.03 above; (b) as reasonably necessary for the conduct of those uses
and activities expressly permitted under terms of this Easement; (c) for the purpose of
continuing the modes of landscaping exercised on the Property prior to and as of the Effective
Date of this Easement; and (d) for selective pruning and grounds maintenance.
3.05 Structures and Improvements
Grantor shall have the right to erect and maintain the followingL 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, subject to any required regulatory
approvals, and provided they are consistent with the Conservation Purpose, Grantor
may erect and maintain the following non-residential improvements on the Property:
(i)
Structures and improvements necessary to p. rotect and restore the Property's
natural resources and significant relatively natural habitat, including but not
limited to houses, nests or perches for birds or other wildlife and erosion
mitigation improvements; provided, however, that the placement of small-scale
habitat enhancement improvements, such as houses, nests or perches for birds or
other wildlife shall not require Grantee's prior approval; and
(ii)
Structures and improvements necessary to provide the generaI public with
access to the Property for passive outdoor recreational purposes and educational
15
purposes, including but not limited to, a foot path or nature trail, benches, bike
rack, wildlife observation stands, kiosk, and picnic table; and
(iii)
Underground or aboveground facilities and utilities to service the improvements
permitted under the terms of these Paragraphs A and B of this section. Grantee's
approval of a proposed improvement described in the previous sentence shall
not be unreasonably withheld where the improvement is used to control
flooding or soil erosion on the Property. Utilities on the Property must, to the
extent possible, be constructed within 30 feet of the centerline of roads or
driveways, and may be used solely to service those structures and improvements
permitted on the Property by this Easement; and
(iv)
Structures and improvements necessary to control flooding or soil erosion on the
Property; and
(v)
Fences, provided they are placed and constructed so that they do not block or
detract from the scenic view of the Property.
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 review and 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 stormwater runoff will not carry eroded and
other deleterious materials into the Peconic Estuary System, 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.
16
ARTICLE FOUR
NOTICE AND APPROVAL
4.01 Noti.c.e...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 explicitly prohibited hereby but which might have a deleterious effect
on the Conservation Values, 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 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
Fourth Street and Clark Street; and
(ii)
the extent to which the proposed activity or use of the site for the proposed
activity would otherwise materially 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 is consistent with the Conservation Purpose.
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 t6 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, materially impair the Conservation Values of the
17
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 foregoing, 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 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 materially impair the Property's
Conservation Values.
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
t8
have become, and shall bear interest until paid by Grantor at three (3) percentage points 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
A. Grantor 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 except as otherwise provided herein. 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, except to the extent due to the negligent act or willful
misconduct of any of the Indemnified Parties; or (2) violation or alleged violation of,
or other failure to comply with, any state, federal, or local law, regulation, or
requirement by any person, other than one or more Indemnified Parties, in any way
affecting, involving, or relating to the Property.
B. Grantee Indemnification.
Grantee shall defend, hold harmless, indemnify, and defend Grantor and its
directors, officers, employees, agents, contractors, and the heirs, personal
representatives, successors, and assigns of each of them from and against all
liabilities, penalties, costs, losses, damages, expenses, causes of action, claims,
demands, or judgments, including, without limitation, reasonable attorneys' fees,
arising from or in any way connected with injury to or the death of any person, or
physical damage to any property, resulting from any act, omission, conditions, or
other matter related to or occurring on or about the Property caused by the negligent
act or willful misconduct of Grantee, its agents, or representatives.
19
5.03 Insurance
EMOC is self-insured for the purposes of this Conservation Easement and complies with
the minimum insurance requirements set forth below. Any subsequent owner of the Property
shall be deemed the "Grantor" herein and shall comply with the insurance provisions set forth
below.
Grantor shall keep the Property insured by an insurance company rated A1 or better
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. Property damage insurance shall include change in condition and
building ordinance coverage, in form and amount sufficient to substantially repair or replace
fully the damaged Property. Such insurance shall include Grantee as an additional insured.
Grantor shall deliver to Grantee a certificate of insurance annually or when coverage is
renewed by Grantor. If Grantor fails to submit proof of insurance coverage annually or at the
time of renewal, Grantor must deliver proof of coverage within 10 business days of Grantee's
written request for documentation of coverage. Grantee shall have the right to provide
insurance at Grantee's cost and expense should Grantor fait to obtain same. In the event
Grantee obtains such insurance, the cost of such insurance shall be a lien on the Property until
repaid by Grantor.
Whenever the Property is encumbered with a mortgage or deed of trust, nothing
contained in this paragraph shall jeopardize the prior claim, if any, of the mortgagee/lender to
the insurance proceeds.
5.04 Casualty Damage or Destruction
In the event that the Property or any part thereof is materially damaged or destroyed by
casualty, Grantor shall promptly notify alt insurers and shall promptly notify Grantee in writing
of the damage or destruction, such notification to include a description of what, if any,
emergency work has already been completed. For purposes of this instrument, the term
"casualty" is defined as such sudden damage or loss as would qualify for a loss deduction
under Section 165(c)(3) of the Code (construed without regard to the legal status, trade, or
business of Grantor or any applicable dollar limitation). No repairs or reconstruction of any
type, other than temporary emergency work to prevent further damage to the Property or the
improvements and to protect public safety, shall be undertaken by Grantor without Grantee's
prior written approval of the work. Within four (4) weeks of the date of damage or destruction,
Grantor shall submit to Grantee a written report prepared by a qualified restoration architect
20
and an engineer, if required, acceptable to Grantor and Grantee which shall include all of the
following:
(i)
(ii)
(iii)
An assessment of the nature and extent of the damage.
A determination of the feasibility of the restoration of the preserved elements
and/or reconstruction of damaged or destroyed portions of the improvements.
A report of such restoration or reconstruction work necessary to return the
improvements to the condition existing immediately before the casualty.
If, after reviewing the report provided in this Section 5.04 and assessing the availability
of insurance proceeds after satisfaction of any mortgagee/lender claims, Grantor and Grantee
agree that the purpose of this Easement will be served by such restoration/reconstruction,
Grantor and Grantee shall establish a schedule under which Grantor shall complete the
restoration/reconstruction of the improvements in accordance with plans and specifications
consented to by the parties up to the total of the casualty insurance proceeds available to
Grantor.
If, after reviewing the report and assessing the availability of insurance proceeds after
satisfaction of any mortgagee/lenders claims, Grantor and Grantee agree that
restoration/reconstruction of the Property is impractical or impossible, or agree that the purpose
of this Easement would not be served by such restoration/reconstruction, Grantor may, but only
with the prior written consent of Grantee, alter, demolish, remove, raze one or more
improvements and/or construct new improvements on the Property.
5.05 Environmental Responsibilities
Grantor Responsible for the Property. Grantee shall have 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 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 except as otherwise expressly provided herein.
Grantor's Environmental Warranty. and Indemni .ty. Except as provided in the Baseline
Documentation, 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. Grantor
hereby promises to hold harmless, defend and indemnify the Indemnified Parties 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,
21
reasonable attorneys' fees, arising from or connected with the presence of and/or any release of
Hazardous Materials (as defined below) or violation of federal, state or local Environmental
Laws (as defined below) on, under or from the Property.
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 be construed such that it imposes on, creates in or gives Grantee:
(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.), the 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 local laws, ordinances, rules, or regulations now
in effect or enacted after the Effective Date of this Easement.
The term "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.
22
5.06 Acts Beyond Grantor's Control.
Nothing contained in. t.his Conservation Easement shall be construed to entitle Grantee
to bring any action against Grantor for any injury to or change in the Property resulting from
natural causes beyond Grantor's control, including without limitation, fire, flood, storm, and
earth movement, trespass, or from any prudent action taken by Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to the Property resulting from such
causes.
ARTICLE SlX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee shall have the right to enter upon the Property for the purpose of inspection and
monitoring to determine whether this Easement and 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, to preserve and to 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 the 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 right 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 acts beyond Grantor's control as referenced in Section
5.06 above.
23
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 hereunder at law or in equity, in the event any breach, default or violation of
any term, provision, covenant or obligation on Grantor's part to be observed or performed
pursuant to this Easement is not cured, or a bona fide attempt has not been begun by Grantor
within thirty (30) days of Grantor's receipt of Grantee's notice of such breach, default or
violation (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 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,
(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 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, and
(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 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.
If Grantor acknowledges or a court of competent jurisdiction determines that a violation of this
Easement has occurred, 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.
6.04 Third-Party Enforcement
24
The Village of Greenport (hereinafter, the "Village") shall have third-party enforcement
rights as provided in Sections 49-0303 (4) and 49-0305 (5) of the Environmental Conservation
Law. The provisions and procedures of this Article Six shall apply to any such enforcement. If
the Village determines that enforcement is necessary, it shall notify Grantee, in writing, of its
determination and the nature of the violation. Within ten (10) days of the receipt of such notice,
Grantee shall inform the Village, in writing, whether or not it will proceed to enforce the
Easement.
If Grantee does not notify the Village of its election to proceed with enforcement, or if
Grantee declines to enforce the Easement, then the Village has the option to initiate enforcement
proceedings. If the Village elects to enforce the Easement, Grantee may, at its option, be named
as Party plaintiff in the enforcement action or proceeding initiated by the Village. If Grantee is
not so named, Grantee may nevertheless move at any time to intervene in such action or
proceeding, and the Village agrees to support such a motion.
In the event of any enforcement action or proceeding brought by either Grantee or
Village, both parties shall cooperate with each other and promptly provide the other party with
copies of all documents submitted to the Court or Grantor related to such action or proceeding.
Either Grantee or Village, or both, may appeal any adverse decision and shall cooperate to
defend any appeal which may be brought by Grantor.
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, is a qualified organization within the meaning of Section 170(h)(3) of the
Code, and 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, and the Assignee must agree, that the Assignee and Assignee's
25
successors will carry out the Conservation Purpose and other terms and conditions 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.
6.07 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, then this Easement
shall be vested in such qualified corporation, body or agency as defined and upon the
conditions and limitations contained in Section 6.06 (Assignability) 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, 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. Grantor shall be notified of any such
proceedings.
6.08 Extinguishment
This Easement gives rise to a property right and interest immediately vested in Grantee.
For purposes of this Section 6.08, the fair market value of such right and interest shall have a
fair market value determined by multiplying (i) the fair market value of the Property
unencumbered by this Easement (minus any increase in value attributable to improvements
made after the Effective Date of this Easement) by (ii) the ratio of the value of this Easement as
of the Effective Date of this Easement to the value of the Property, unencumbered by this
Easement, as of the Effective Date of this Easement. The value as of the Effective Date hereof
shall be established through a "qualified appraisal" in accordance with Treas. Reg. Section
1.170A-13 and guidance of the Internal Revenue Service and in accord with any final
determination thereof. The percentage ratio thus determined is hereinafter referred to as the
"Proportionate Share" and shall thereafter remain constant. The Proportionate Share of this
Easement as determined above shall be filed as part of the Baseline Documentation Report
described in Section 0.03 hereof.
(For example: if the fair market value of the Property is $500,000 as of the Effective Date and its
restricted value as of such date is $100,000, the value of this Easement is $400,000. So the Proportionate
Share is $400,000 divided by $500,000, or 80%.)
If circumstances arise in the future that render the Conservation Purpose of this
Easement impossible or impracticable to accomplish, this Easement can only be terminated or
26
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction and in accordance with the common and statutory laws of the State of New York.
In the event a material change in the conditions of or surrounding the Property makes
impossible or impracticable its continued use for the purposes contemplated hereby or makes
impossible or impracticable the protection of the Conservation Values protected by this
Easement, resulting in an extinguishment or partial extinguishment of this Easement by a
judicial proceeding, Grantor shall pay Grantee an amount equal to the Proportionate Share of
the then fair market value of the Property (minus any amount attributable to the value of
improvements made by Grantor after the Effective Date of this Conservation Easement) at the
time of the extinguishment. Such fair market value shall be established by an arm's length sale
of the Property (or such portion of which as to which this Easement is extinguished)
consummated within ninety (90) days of the extinguishment, subject to Grantee's approval of
the sale price as fairly representing fair market value; otherwise, fair market value shall be
determined 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 Conservation Purpose hereof, Grantor and Grantee shall join in
appropriate proceedings at the time of such taking to recover the full value of their respective
interests in the Property subject to the taking and all incidental or direct damages resulting from
the taking. Ail 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 of the remaining recovered proceeds. Grantee shall use such proceeds
actually recovered by it in a manner consistent with the Conservation Purpose 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
the power of eminent domain as aforesaid. In making this grant of Easement, however, 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.
27
ARTICLE SEVEN
MISCELLANEOUS
7.01 Alienability
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.
As set forth in Chapter 185 (Open Space Preservation) and Chapter 17 (Community
Preservation Fund) of the Town Code of the Town of Southold, interests or rights in real
property acquired by the Town pursuant to the provisions of those chapters shall not thereafter
be alienated, except upon the affirmative vote of a majority of the Town Board after a public
hearing and upon the approval of the electors of the Town voting on a proposition submitted at
a special or biennial town election. No subsequent amendment of the provisions of those
Chapters shall alter the limitation imposed upon the alienation of development rights acquired
by the Town prior to any such amendment.
7.02 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.
7.03 Amendment
This Easement can be amended and modified only in accordance with 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 would result in this Easement failing to qualify as a valid
28
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. No amendment may be approved by Grantee that would or, as Grantee in its judgment
may determine, could jeopardize its tax-exempt status and/or violate the rules of impermissible
private benefit or of private inurement under applicable sections of the Code, including but not
limited to Code section 501(c)(3).
7.04 Severability
Any provision of this Easement restricting Grantor's activities which 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 the 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 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. 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, as 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, except as otherwise provided in
Section 6.07 hereof.
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'~ attorney. No alleged ambiguity in this Easement shall be construed against the party
29
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 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 its right to use the Property, except as
otherwise recited herein, be construed at all times and by all parties to effectuate its purposes.
7.08 Public Access
Nothing contained in this Easement grants, nor shall be interpreted to grant, to the
general public any right to enter upon the Property other than for non-commercial passive
recreational, educational, and other uses consistent with the Conservation Purpose and other
terms and conditions of this Easement as permitted by Grantee.
7.09 Warranties
The warranties and representations made by the parties in this Easement shall survive
its execution.
7.10 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, and shall forward a copy of the recorded easement to the
New York State Department of Environmental Conservation.
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. The terms "Grantor" and "Grantee," whenever used herein, and
any pronouns used in place thereof, 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.
30
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 and as otherwise provided herein.
7. I3 Headings
The headings, titles and subtitles herein have been inserted solely for convenient
reference, and shall be ignored in its construction.
7.14 Counterparts
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 follow on next page(s).]
31
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.
GRANTOR:
EXXONMOBIL OIL CORPORATION,
a New York corporation
R. A. Parker
Agent and Attorney-in-Fact
STATE OF TEXAS
COUNTY OF HARRIS
) SS:
On the ~OC/~- day of ~,}OV'~'~7~ in the year ~/,~- before me, the
undersigned, personally appeared R. A. Parker, as Agent and Attorney-in-Fact of
EXXONMOBIL OIL CORPORATION, a New York corporation, 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(les), that be 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, and that such individual made such appearance before the undersigned in the City
of Houston and State of Texas.
Notary Public
Notary Public, State of Texas
My Commission Expires
June 02, 2015
32
ACKNOWLEDGED AND AGREED:
GRANTEE:
TOWN OF SOUTHOLD,
a municipal co~oration of the State of New York
Scot~ A. Russell
ITS: Supervisor
STATE OF NEW YORK
COUNTY OF SUFFOLK
)
) SS:
)
On this 29th day of November in the year 2012, before me, the undersigned, personally
appeared Scott A. Russell, 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.
l~tary Public ~
MELANIE DOROSEI
NOTARY PUBLIC, Stale of New
No. 01004634870
Qualified in Suffolk Counly ~,..,,
Commission Ex, pires Septemb er 30,
33
ACKNOWLEDGED AND AGREED:
THIRD-PARTY ENFORCER:
VILLAGE OF GRE~NPORT,d
a municipal corpoj/~tion oJ,)~j(e State of New York
BY: //~
Name/ · /./ /,'~
STATE OF NEW YORK )
) SS:
COUNTY OF SUFFOLK )
On this ~(~ay of be.x. in the year 2019... before me, the undersigned, personally
appeared ~ ~,t t o ~ c~.... , personally known to me or proved
to meon 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(les), 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.
No. 010D6251238
Commission Expires November 14, 20..L/'3
34
SCHEDULE A:
EXHIBIT A:
Metes and Bounds Description of the Property
Conservation Easement Map of the Property
35
SCHEDULE "A"
PARCEL 1 (NORTHERLY PORTION OF PREMISES)
ALL THAT LOT OR PARCEL OF LAND, IN THE VILLAGE OF GREENPORT, TOWN OF SOUTHOLD,
COUNTY OF SUFFOLK AND STATE OF NEW YORK, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF THE PROPERTY CONVEYED BEING THE
SOUTHEASTERLY CORNER OF FOURTH AND CLARK STREETS,
THENCE IN AN EASTERLY DIRECTION BY AND ALONG CLARK STREET TO GREENPORT HARBOR
AT ORDINARY H1GHWATER MARK,
THENCE IN A SOUTHERLY DIRECTION BY AND ALONG SAID ORDINARY HGHWATER MARK TO
LAND NOW OR FORMERLY EMILY DURKEE,
THENCE IN A WESTERLY DIRECTION BY AND ALONG LAND NOW OR FORMERLY OF EMILY
DURKEE, TO THE EASTERLY SIDE OF FOURTH STREET,
THENCE IN A NORTHERLY DIRECTION BY AND ALONG FOURTH STREET TO THE POINT OR
PLACE OF BEGINNING.
PARCEL 2 (SOUTHERLY PORTION OF PREMISES)
ALL THAT CERTAIN LOT, PIECE OR PARCEL OF LAND SITUATE, LYING AND BEING IN THE
VILLAGE OF GREENPORT, TOWN OF SOUTHOLD, COUNTY OF SUFFOLK AND STATE OF NEW
YORK, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE EASTERLY LINE OF FOURTH STREET, DESIGNATED BY A
STAKE DRIVEN IN THE GROUND AND DISTANT THREE HUNDRED AND FIFTY (350) FEET
SOUTHERLY FROM THE INTERSECTION OF THE SOUTHERLY LINE OF CLARK STREET WITH THE
EASTERLY LINE OF SAID FOURTH STREET AND
RUNNING THENCE EASTERLY ON A LINE PARALLEL WITH THE SOUTHERLY LINE OF CLARK
STREET ONE HUNDRED AND NINETY TWO (192) FEET TO A STAKE LOCATED AT ORDINARY
HIGHWATER MARK OF PECONIC BAY,
THENCE FOLLOWING ORDINARY HIGHWATER MARK OF THE SHORE OF PECONIC BAY IN A
GENERAL SOUTHWESTERLY DIRECTION TO ANOTHER STAKE LOCATED ON THE EASTERLY
LINE OF FOURTH STREET AND DISTANT ONE HUNDRED AND THIRTY TWO (132) FEET
SOUTHERLY FROM THE POINT OF BEGINNING, AND
THENCE NORTHERLY ALONG THE EASTERLY LINE OF FOURTH STREET ONE HUNDRED AND
THIRTY TWO (132) FEET TO THE POINT OF BEGINNING.
II lil .
POWER OF
EXXONMOBIL OIL CORPORATION, A NEW YORK CORPORATION (thc "Company") havin~ an
office ~n Housmr~ Tex~ her*by nominate~ con~itute~, and appoints
R. A. Parker
as Agent and Attomeydn-Fact oft ho~ Company for purposes of executing and delivering instruments and
documents as mot, particulm'ly desrzibed below and does hereby grant, delegate,, ~md inv,st said
indivldmi with power and authority m execute and deliver for, in the name, and on betudf of the
Compmay and in ¢onne~Iion with the business md affairs of the 'Company, instruments and documents of
any and every nature.
This include..% but not by way of limitation, insmmaents plodgi.'ng the credlt of h% Company,
guaranties, affidavi~ govemmentaI documents, bidx, contracts, deeds of conveyance, encumbrances,
lea.sos, ~leascs, discharge, of mortgages or deeds of trust, assignments, transfetg of l~asehoid estates
and/or other iht, rests in real and/or personal proplmy, and any other instrument or documeot as may be
required or desired in the conduct of the business of the Company, whether similar-or dissimilar to the
fore'going, FAC'XI~ the following:
Any mortgage., assignment, conveyance, or release to any third party of any oil, gas, and/or
mineral lease or any other intere.~ in oil, gas, and/or minerals which is severed from.tho surface
and which is owned by or leased to the Company.
Any financial guaranty or any instrument or document authorizing; permitting, or evidencing the
borrowing of money from any p~rson or entity.
Any instrument or document delegating the power and authority confen'ed herein to ex~eute ~d
deliver instruments or documents.
All ~uthority granted, delegated, and invested by this Power of Attorney shall be effective
beginning as of April 18. 2012, and shall expir~ on April 18, 2015, and shall ha. ye the s~rne force ~d
effect as though ~ecial authority wer~ gran'~l by the Company to the named Agent and Attorney-in-Fact
to execute and deliver each such instrument or document s~.para~ely for e~ch and every such instrument or
docament ~o executed and deliver,&
.t__
Executed on April I , 2012.
'~X~ONI~[0BiL OIL CORPOR~.TION
B. WJ~Vlilton. Vice Pr~sid,nt
This instrument was acknowledged l~fo~e me on April .llt:~, 2012, by B. W. Milton, Vice
Pn:sidera o f E.xxomMobil Oil Corporation, a New ~~l-~~~aid corporation.
~ II~'-.~_i~.~[.U uot,,v~ Co~,r~i~,io, E~pt*0~PuOlle" St.la o! Texas I[ 1[ l~:ary~ public, State of Tex~s
· "--- ' Z "~- - ~---