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HomeMy WebLinkAboutPeconic Land Trust (Axien) i' NOTICE ~)F I~uBLIc HEARING _NOTICE _IS HEREBY GI~'~N that .;~ithe Town Boaxd of-the Town of $outhold hereby sets Tuesday. July 16, ':'201)2, at, 5:00 p.m., Southold Town : ', H',.ffl. 53095 Main Road, Southold. NeW 'York.as the th-ne and place for a public !~.Aeat2ng °nj. he-q~estion of acquisition ', by gift of a conSe~a~fifi~-eannnent-of~ .l'approximatelY 831, acres Of property :., from Pec0nic IL'and Truslt'~scontract i" vendee: with' 'Elainb ~xien.'fo ,'.. space', preservation purposes tn accpr- dan,ge W th'Chapter 6 of the Town Code "'Th'e' p~bperb' ii. oCa't~d at. the. end' bf. 'ii;,,.Hemy's:.Lane, tn Pec0mc, New. York. ',,i The, D ,areei, known,'as,SC'~t~,O00:6$~ ,,l~'..d0n6rs.. The ill, '; 'dol i. Ther~ "ate 'nVd defihe~'rigfii~ of W~v on i;;".itfie property that are' subject to t. he rights 'of others. The rights, of'way are not part ,' ',' of the, 'easea~e~t ;'~tb'''be~,''fl'c~nated~ 'rd ~e :': Town. Xh~ ex'a~t ~ea O/:tfie'~s~ent ,is ~? :shbject to. sU~ ey. ~e "total price~ 0f the "easemen~t'donafi0n ~¥Hl be acquisition ' 'cos~-ass0ciated w~th transfer of title of :':' the easemen't to be gifted. ~T~R NOTICE is hereby given ,, ~ht ~ore' d~aH~ ~.~n~' 'ab~v~ m~ntioaed p~cel of l~d is on ~' t~e m L~d~qse~a~t0~;~ep~ent. ~I~' S0uth0Id ToWn'~ Hall;:].' Fehthe~" ' A~ex. Sou~old. New York, and may '~. be exa~ed bY any ~terested person ' du.fing b.~iness hours,.. 17 .... ~d:, fulY 2'~':2~2'' ."' , ~:, ' ~,, ,, ,":,,~ B,~'o~,o'r~g so~O~o xo~ gO~O '. ' ' ~IZABE~ A. NE%~LE SOUTHOLD TOg~ CLERK 2389-1T Jyi 1 "' ........ sTATE OF NEW YORK)'~' )ss: ...~ ~_...~TY OF SUFEOLK) ~' _ '.,~Z'"~'~-2'"~-._ of aattituck, in said county, being duly sworn, says that he/she is Principal clerk of THE SUFFOLK TIMES, a weekly newspaper, pub- lished at Mattituck, in the Town of Southold, CountY of Suffolk and State of New York, and that the Notice of which the annexed is a pdnted copy, has been regularly pub- lished in said Newspaper once each week for / weeks successively, commencing on the /~ daY of ~e-2~ 20a. g.~ ~' Principal Clerk Sworn to before me this day of // LAURA E. BONDARCHUK Notary Public, State of NewY0rk No 01B06067~58 Qualified in Suffolk County My Commission Expires Dec. 24, 2 LEGAL NOTICE NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the Town Board of the Town of Southold hereby sets Tuesday~ Jul.v 16~ 2002, at 5:00 p.m.s, Sonthold Town Hall, 53095 Main Road, Southold, Ne~v York as thc time and place for a public hearing on the question of acquisition by Rift of a conservation easement of approximately 8.9 acres of propen3~ from Peeonic Land Trust as contract vendee with Elaine Axien for open space preservation purposes in accordance with Chapter 6 of'the Town Code_ The property is located at the end of Henry's Lane in Peconic, New York. The parcel, known as SCTM#1000-68-3-7, comprises approximately 8.9 acres_ The property is being purchased by the Peconic Land Trust, funded by private donors. The Peconic Land Trust will donate a conservation easement on the property to the Town. The property is wooded and contains some wetlands. There are two defined righfs of way on the property that are subject to the rights of others. The rights of way are not pgrt of the easement to be donated .to the Toam. The exact area of the easement is subject ~sm-vey. The total price of the easement donation will be acquisition costs associated wi~ transfer of title of the easement to be ~fted. FURTHER NOTICE is hereby given that a more detailed description of the above mentioned parcel of land is on file in Land Preservation Department, Southold Town Hall, Feather Hill Annex, Southold, New York, and may be examined by any interested person during business hours. Dated: July 2, 2002 BY ORDER OF THE SOUTHOLD TO~VN BOARD ELIZABETH A. NEVILLE SOUTHOLD TOWN CLERK PLEASE PUBLISH ON JULY 11, 2002, AND FORSVARD ONE (1) AFFIDAVIT OF PUBLICATION TO ELIZABETIt NEVILLE, TOWN CLERK, TOWN HALL, PO BOX 1179, SOUTHOLD, NY 11971. Copies to the following: The Suffolk Times To~vn Board Members Town Attorney STATE OF NEW YORK ) SS: COUNTY OF SUFFOLK) ELIZABETH A. NEVILLE, Town Clerk of the Town of Southold, New York being duly sworn, says that on the ~t'~6 day of (~_~'~- ,2002, she affixed a notice of which the annexed printed notice is a true copy, in a proper and substantial manner, in a most public place in the Town of Southold, Suffolk County, New York, to wit: Town Clerk's'Bulletin Board, 53095 Main Road, Southold, New York. NOTICE OF PUBLIC HEARINGS FOR JULY 16, 2002 - ~-l~zabeth ~. Neville/ Southold Town Clerk Sworn before me,this q-m dayof l}~0~_ ,2002. Notary Public LYNDA M, BOHN NOTARY PUBLIC, State of N~t Yerl~ No. 01B06020932 ~Jalified hl Suffolk Coul3ty Term Expires March 8, SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument: EASEMENT/DOP Number of Pages: 12 TRANSFER TAX NUMBER: 02-23303 District: 1000 Deed Amount: Recorded: At: LIBER: PAGE: Section: Block: 068.00 03.00 EXAMINED AND CHARGED AS FOLLOWS $0.00 01/15/2003 09:56:42 AM D00012230 433 Lot: 007.000 Received the Following Fees For Page/Filing $36.00 COE $5.00 TP-584 $5.00 Cert. Copies $0.00 SCTM $0.00 Comm. Pres $0.00 TRANSFER TAX NUMBER: 02-23303 THIS PAGE IS Above Instrument Exempt NO Handling NO NYS SURCHG NO Notation NO RPT NO Transfer tax NO Fees Paid A PART OF THE INSTRUMENT Exempt $5.00 NO $15.00 NO $0.00 NO $30.00 NO $0.00 NO $96.00 Edward P.Romaine County Clerk, Suffolk County Number of pages TORRENS Serial # Certificate # Prior Ctfi # Deed / Mortgage Instrument 41 Page / Filing Fee , __ Handling TP-584 ~7 Notation EA-52 17 (County) EA-5217 (State) R.P.T.S.A. Comm. of Ed. Affidavit Certified Copy Sub Total 500 i Reg. Copy Other SubTotal GRANDTOTAL si Stamp Date Initials Deed / Mortgage Tax Stamp FEES Real Property Tax Service Agency Verification Dist. [ Section ] Bilk I Iht 1000 06800 0300 007000 Satisfactions/Discharges/Releases List Property Owners RECORD & RETURN TO: Mailing Address Recording / Filing Stamps Town of Southold 53095 Main Road Southold, NY 11971 Mortgage Amt. 1. Basic Tax 2. Additional Tax Sub Total Spec./Assit. Or Spec./Add. Consideration Amount $ TOT. MTG. TAX Dual Town Dual County__ Held for Apportionment __ Transfer Tax O Mansion Tax The property covered by this mo~gage 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. Community Preservation Fund CPF Tax Due Improved Vacant Land TD /(; TD TD 8 [ Title Company Information ITM ~_ q'~ ¥~' ? Suffolk County Recording & Endorsement Page This page forms part of the attached ¢onservat ± on Easement made by: (SPECIFY TYPE OF INSTRUMENT ) Peconic Land Trust TO Town of Southold The premises herein is situated in SUFFOLK COUNI~, NEW YORK. In the Township of In the VILLAGE or HAMLET of Peccnic Southold BOXES 5 THRU 9 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING. (OVER) CONSERVATION EASEMENT ,2oo-j THIS DEED OF CONSERVATION EASEMENT, is made on the 8th day of January 2002, at Southold, New York. The parties are the PECONIC LAND TRUST, INCORPORATED, a not-for-profit New York Corporation, having a principal office at 296 Hampton Road, P.O. Box 1776, Southampton, New York 11969 (herein call "Grantor") and the TOWN OF SOUTHOLD, a Municipal Corporation, having a principal office at 53095 Main Road, Southold, NY 11971 (herein called Grantee). INTRODUCTION WHEREAS, Grantor is the owner in fee simple of 8.9-acres of real property located in the hamlet of Peconic, in the Town of Southold, Suffolk County New York, identified as SCTM # 1000-68-3-7 and is more fully described in SCHEDULE A attached hereto, made a part hereof, and hereinafter referred to as the "Property"; and WHEREAS, Grantor wishes to grant a Conservation Easement on the 8.9-acre parcel of Property so that the Property shall remain in its open, undeveloped, natural and scenic state; and WHEREAS, the Property contains freshwater wetlands that should be preserved pursuant to Section 97-10 to 9%33 of the Code of the Town of Southold known as "Wetlands", for the purpose of protecting, preserving, and maintaining the Town's wetlands for the protection of its citizens; and WHEREAS, the Property contains freshwater wetlands that should be protected and preserved pursuant to the New York State Department of Environmental Conservation Article 24, 6NYCRR Part 662; and WHEREAS, it is the policy of the Town of Southold, as articulated in the Town's Master Plan of 1973, amended in 1986 and 1989 as adopted by the Town Board, Town of Southold code, Section 272-a of the Town Law, to protect environmentally sensitive areas, preserve prime agricultural soils, to protect the scenic, open space character of the Town and to protect the Town's resort and agricultural economy; and WHEREAS, Article 57 of the New York State Environmental Conservation Law, Section 57-0101, et.seq., entitled "Long Island Pine Barrens Maritime Reserve Act," declared it to be in the public interest to protect and manage the Pine Barrens/Peconic Bay maritime system, including the Property; 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 values of the Property as an aesthetic, open space, and natural 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 and possesses the right to grant this easement. 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 Purpose The parties recognize the environmental, natural, scenic, and open space values of the Property and have the common purpose of preserving these values. This Deed is intended to convey a Conservation Easement on the Property by Grantor to Grantee, exclusively for the purpose of preserving its open space character in perpetuity for its environmental, scenic, open space, 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 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. 0.05 Documentation Grantee acknowledges by acceptance of this Easement that 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 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, Grantor has prepared, with Grantee'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 marked EXHIBIT A, an aerial photograph, photographs of the Property, a topographical map, a description and site plan of existing land uses, features, and structures 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. 0.06 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. 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. 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 for the construction of one (1) shed for storage as allowed in Section 4.05, the construction or placement of residential, commercial, or industrial buildings, structures, or improvements (including, but not limited to mobile homes), permanent or temporary, on, over, or under the Property shall be prohibited. All other structures and improvements including the shed, the construction and maintenance of trails for non-motorized vehicular use, and access drives shall be prohibited without the prior written consent of Grantee, which shall not be withheld if the structure, improvement, or activity does not defeat or derogate from the purposes of this Easement. 3.02 Excavation and Removal of Materials; Mining The excavating or filling of the Property shall be prohibited without the prior written consent of Grantee, which shall not be withheld if the activity 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 permitted structures and improvements on the Property and for purposes of erosion control and soil management, 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. 3.03 Subdivision The subdivision or partitioning of the Property shall be prohibited without the prior written consent of Grantee, which shall not be withheld if the subdivision or partition does not defeat or derogate from the purposes of this Easement. 3.04 Dumping The dumping or accumulation of unsightly or offensive materials including, but not limited to trash, garbage, sawdust, ashes, chemical waste, lawn and garden refuse or debris such as leaves and grass clippings, 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 name and address of the Grantor and/or Grantee, (b) to post the Property to control unauthorized entry or use, or (c) to announce Grantee's conservation easement. Signs shall not be mom than six square feet in size and are subject to regulatory requirements of the Town of Southold. 3.06 Timber, Removal of Vegetation and Landscaping Activities The use of any pesticides, herbicides or fungicides on the Property are prohibited without the prior written consent of Grantor and Grantee. The cutting or harvesting of timber on the Property, and the clearing or removal of trees, shrubs, or other vegetation is prohibited, except for the following purposes: (a) to clear and restore forest cover that has been damaged or disturbed by forces of nature or human activity, (b) to prune and selectively thin trees to create limited vistas in accordance with good forest management practices and the purposes of this Easement, (c) to remove or restore trees, shrubs, or other vegetation when dead, diseased, decayed, or damaged, and (d) to create and maintain the permitted structures and improvements. 3.07 Wetlands 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; The draining, filling, dredging, or diking of the wetland areas, including any enlargements thereof, or the cultivation or other disturbance of the soil within 100 feet of the wetlands shall be prohibited. 3.08 Uses The use of the Property for any residential, commercial or industrial purpose shall be prohibited. 3.09 Drainage The use of the Property for a leaching or sewage disposal field shall be prohibited. The use of the Property for a drainage basin or sump shall be prohibited except to control flooding or soil erosion on the Property. 3.10 Development Rights The use of the acreage of this Property for purposes of calculating lot yield on any other Property shall be prohibited. Grantor hereby grants to Grantee all existing 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 ali other customary rights of ownership in the Property, some of which are more particularly described 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 Timber, Removal of Vegetation and Landscaping Activities Except as provided in Section 3.06, Grantor shall have the right to continue the current modes of landscaping, pruning and grounds maintenance on the Property. 4.05 Structures and Improvements Grantor shall have the right to erect and maintain the following non-residential structures and improvements on the Property with the prior written consent of Grantee, which consent shall not be withheld if the structure or improvement does not defeat or derogate from the purposes of this Easement. Such structures and improvements include, but are not limited to: .... Fcmt ,400 l:'e 't (i) One ~ne~ signs, and benches, related to trail use (ii) Access drives, trails, footpaths related to trail use (iii) Fences In the event of damage resulting from casualty to an extent which renders repair of any existing improvements impractical, 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. 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. Such approval, disapproval or comments of Grantee shall be given to Grantor within 45 days after all necessary documentation and information is submitted to Grantee. 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 transferee, 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 5 ~ncorporate this Easement by reference, specifically setting for 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 ri hts g hereunder. As set forth in Chapter 59 and Chapter 6 of the Town Code of the Town of Southold OPEN SPACE 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 limitations imposed upon the alienation of development rights acquired by the Town prior to any such amendment. ARTICLE FIVE GRANTOR'S OBLIGATIONS 5.01 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, levies or assessments upon it or resulting from this Easement, all of which shall be considered Grantor's obligations. 5.02 Third Party 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 those due solely to the acts of the Grantee, its officers, employees, agents, or independent contractors; and (b) from actions or claims of any nature by third parties arising out of the entering into or exercise of rights under this easement, excepting any of those matters arising solely from the acts of Grantee, its officers, employees, agents, or independent contractors. ARTICLE SIX GRANTEE'S RIGHTS 6.01 Entry and Inspection Grantee shall have the right to enter upon the 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 Easement and its purposes and provisions are being upheld. Grantee shall not have the right to enter upon the Property for any other purpose, except as provided in Section 6.01, 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 reasonably 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, provision, covenant or obligation on Grantor's part to be observed or performed pursuant to this Easement is not cured by Grantor within fifteen (15) 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 p;eserve 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 broach, default, or violation or with respect to any other breach, default or violation of any term, condition, covenant or obligation under this Easement. In the event that Grantee prevails in any legal proceeding brought under the provisions of this Section 6.04, Grantor shall pay, either directly or by reimbursement to Grantee, all reasonable attorney's fees, court costs and other expenses incurred by Grantee (herein called "Legal Expenses") in connection with any proceedings under this Section. 6.04 No Waiver Grantee's exercise of one remedy or relief under this ARTICLE SIX shall not have the effect of waiving or limiting any other remedy or relief, and the failure to exercise or delay in exercising any remedy shall not have the effect of waiving or limiting the use of any other remedy or relief or the use of such other remedy or relief at any other time. 6.05 Assignability Grantee shall have the right to assign any and all of its rights and responsibilities under this Easement, and any and all of its rights, title and interest in and to this Easement only to a qualified organization (herein called "the Assignee"). As used herein: the term "qualified organization" means a not-for-profit corporation, or a governmental unit or agency, which is qualified to receive such interests pursuant to Article 49 of the New York Environmental Conservation Law, and is a qualified organization within the meaning of Section 170(h)(3) of the Code, which is organized or operated primarily or substantially for one of the conservation purposes specified in Section 170(h)(4)(A) of the code. Any assignment by Grantee or a successor Grantee must require the Assignee or Assignee's successors to carry out the purposes of this Easement. The Assignee and its successors and assigns shall have the same right of assignment, subject to compliance with the provisions of this Section 6.06. 6.06 Succession If at any time Grantee or any Assignee is unable to enforce this Easement, or if Grantee or any Assignee ceases to exist or ceases to be a qualified organization under I.R.C. Section 170(h)(3), then this Easement shall be vested in such qualified corporation, body or agency as 7 defined and upon the conditions contained in Section 6.05 as the Grantee shall designate. If, on the occurrence of any of these events, Grantee or any successor or assignee fails to assign all of its rights and responsibilities under this Easement and all of its rights, title and interest in and to this Easement to a qualified organization, then the rights and responsibilities under this Easement shall become vested in another qualified organization, in accordance with a cy pres proceeding brought in any court of competent jurisdiction. 6.07 Extinguishment This Easement gives rise to a property right and interest immediately vested in the Grantee. For purposes of this Section 6.07, the fair market value of such right and interest shall be equal to the difference, as of the date hereof, between the fair market value of the Property subject to this Easement and the fair market value of the Property if unencumbered hereby (such difference, divided by the fair market value of the Property unencumbered by this Easement, is hereinafter referred to as the "Proportionate Sham"). 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 to the Proportionate Share of the fair market value of the Property at such time. In the event of a sale by Grantor to an unrelated person subsequent to such extinguishment, or a transfer made on account of the exemise 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 Sham 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 6.07 shall be in addition to, and not in limitation of, any rights they may have by law with respect to a modification or termination of this Easement by mason of changed conditions or the exemise of powers of eminent domain as aforesaid. ARTICLE SEVEN MISCELLANEOUS 7.01 Entire Understanding This Easement contains the entire understanding between its parties concerning its subject matter. Any prior agreement between the parties concerning its subject matter shall be merged into this Easement and superseded by it. 7.02 Amendment This Easement can be terminated or modified 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 of this Easement set forth in the Introduction hereof; provided, however, that Grantee shall have no right or power to agree to any amendments hereto that would result in this Easement failing to qualify as a valid Conservation Easement under Article 49, Title 3 of the Environmental Conservation Law of the State of New York, as the same may be hereafter amended, any regulation issued pursuant thereto. 7.03 Severabilit¥ 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 receipts 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. Mailed notice to Grantee shall be addressed to its principal office, recited herein, marked for the attention of the President, or to such other address as Grantee may designate by notice in accordance with this Section 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 Interpretation Regardless of any contrary rule of construction, no provision of this Easement shall be construed in favor of one of the parties because it was drafted by the other party's attorney. No alleged ambiguity in this Easement shall be construed against the party whose attorney drafted it. If any provision of this Easement is ambiguous or shall be subject to two or more interpretations, one of which would render that provision invalid, then that provision shall be given such interpretation as would render it valid and be consistent with the purposes of this Easement. 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, the right of the public to enter upon the Property without the express permission of Grantor. 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. 9 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: PECONIC LAND TRUST, INCORPORATED (Grantor) Vice l~esi~dent X~ ACKNOWLEDGED AND AC, TOWN OF SOU~HOLD (Grat J,[oh~ M._Romanelli l~uty Supervisor :EPTED: ~e) STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: On this 5( day ofi;r~-. in the year 2003 before me, the undersigned, personally appeared Timothy J. Caufield, 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. Notary Public /(¢/ ROBERT DEFRESE /~D~:~ I/~'- ".0~/~--~'""~ Notary Public, State of New York ('~,~. OIM)~.,~O~'//~ No. 01DE5035117 ~ .,j~ (. ,,,.O ~ [~ ~'DIJ~. ct, Qualified in Suffo k Count -""~' .Commission Expires October 24.y STATE OF NEW YORK COUNTY OF SUFFOLK ) SS: On this tr day of ,-f"*-~in the year 2003 before me, the undersigned, personally appeared John M. Romanelli, 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. Notary Public ,/(J'/'~.b,~,~'~'T- ..O~'~.~4'~E- ROBERT DEFRESE Notary Public, St~te of New York ~ ~ I~~/¢ NO. 01DE3035117 ~ ~' 0~ Qualified in Suffolk County ~ U~(. ~ ~ '- Commission E~pjres Octob~ -- ~.~. ~ /~ ~ _ ~r24, SC~D~E A: Mete~' [nd B;uTd D fi t on of the Prope~y 10 SCHEDULE A AMENDED 1/3/03 ALL that certain plot, piece or parcel of land, situate, lying and being at Peconic, Town of Southold, Suffolk County, New York, bounded and described as follows: COMMENCING at a monument at the southeasterly comer at the premises herein described where said premises intersects Lakeview Avenue and Lot 7 on a certain map entitled "Map of Peconic Knolls Map No. 6607" filed 9/29/77 and from said point of beginning; RUNNING THENCE South 27 degrees 53 minutes 50 seconds West, 479.13 feet along the northwesterly boundary of said map #6607; RUNNING THENCE along the northeasterly and easterly boundary of Map of Blue Horizons Map No. 7974 filed 9/30/85; 1. North 82 degrees 20 minutes West, 515.76 feet to a point; 2. North 80 degrees 05 minutes West, 225.77 feet to a monument; 3. North 31 degrees 29 minutes 20 seconds West, 296.75 feet to the northerly line of a 33 foot right of way: RUNNING THENCE along said right of way three courses and distances: 1. North 82 degrees 49 minutes 00 seconds East, 352.30 feet; 2. North 67 Degrees 50 minutes 30 seconds East, 263.62 feet; 3. North 81 degrees 22 minutes 00 seconds East, 355.37 feet to the westerly line of said land now or formerly of Gregory and Stacy Michelis; RUNNING THENCE along said land and land formerly of Michelis, South 51 degrees 21 minutes 00 seconds East, 214.72 feet to the point or place of BEGINNING. EXCEPTING from the Conservation Easement a 33 foot private road and a 20 foot right of way over the easterly part of the premises herein reserving to the party of the first part, his heirs and assigns, a right of way over said 33 foot private road and over said 20 foot right o£way over the easterly part of the premises herein. EXCEPTING from the Conservation Easement a 20 foot right of way which runs southerly over land of Hehn and others to the northerly comer of land of Peconic Homes Section 2; THENCE over a right of way 16 ½ feet in width which runs southerly along the easterly side of land of Peconic Homes to the North Road, said 20 foot right of way and 16 ½ foot right of way being for access between land of the party of the first part and North Road.