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HomeMy WebLinkAboutL 12450 P 181 SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument: ' EASEMENT/DOP Recorded: 05/15/2006 Number of Pages: 19 At: 01:15:27 PM Receipt Number : 06-0048001 TRANSFER TAX NUMBER: 05-38564 LIBER: D00012450 PAGE: 181 District: Section: Block: Lot: 1000 101.00 01.00 008.003 EXAMINED AND CHARGED AS FOLLOWS Deed Amount: $0 .00 Received the Following Fees For Above Instrument Exempt Exempt Page/Filing $57.00 NO Handling $5.00 NO COE $5.00 NO NYS SRCHG $15.00 NO TP-584 $5.00 NO Notation $0.00 NO Cert.Copies $12.35 NO RPT $30.00 NO SCTM $0.00 NO Transfer tax $0.00 NO Comm.Pres $0.00 NO Fees Paid $129 .35 � TRANSFER TAX NUMBER: 05-38564 THIS PAGE IS A PART OF THE INSTRUMENT i THIS IS NOT A BILL Judith A. Pascale County Clerk, Suffolk County i Please be advised this document will be public record Remove • ❑1 ❑Z Number of pages 9 TORRENS Judith P. Pascale CLERK OF Serial# SUFFOLK COUNTY L D00012450 Certificate# P 181 DT# 05-38564 Prior Ctf.# Deed/Mortgage Instrument Deed/Mortgage Tax Stamp Recording/Filing Stamps 3 FEES Page/Filing Fee Mortgage Amt. _ 1. Basic Tax Handling 5. 00 2. Additional Tax TP-584 `7 Sub Total Notation SpecJAssit. or EA-52 17(County) Sub Total— 14-1 Spec./Add. EA-5217(State) TOT.MTG.TAX R.P.T.S.A. d��— Dual Town_Dual County J� Held for Appointment Comm.of Ed. 5. 00 Transfer Tax Affidavit • • Mansion Tax The property covered by this mortgage is ertified Copy ( �02.3� / or will be improved by a one or two family dwelling only. NYS Surcharge 15. 00 Sub Total Z L3 yES or NO Other Grand Total /,2 •3' If NO,see appropriate tax clause on page# of this instrument. S/� 6 4 Dist. 0DO kectionjol.00 Block 6t, L ' ' S Community Preservation Fund Real Property 06016928 1000 10100 0100 008003 )3 Consideration Amount$ Tax Service p T SA Agency RAE CPF Tax Due $ Verification 15-MAY Improved Vacant Land 6 Satisfactions/Discharges/Rcicases List Property Owners Mailing Address RECORD&:RETURN TO: TD TD WICKHAM,BRESSLER,GORDON&GEASA,P.C. TD 13015 MAIN ROAD,P.O.BOK 1424 [MTTITUCK,NI 11952 7T Title Company Information Co.Name Title# i 8 Suffolk Counly Recording & Endorsement Pagre This page forms pan of the attached Conservation Easement made by: (SPECIFY TYPE OF INSTRUMEN-11 Abigail A.Wickham,Trustee U/W William The premises herein is situated in Wickham f/b/o Helen Wickham SUFFOLK COUNTY,NEW YORK. TO In the Township of Southold Peconic Land Trust, Incorporated In the VILLAGE or HAMLET of CutChOgue BOXES 6 THRU S MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING. (over) CONSERVATION EASEMENT This DEED OF CONSERVATION EASEMENT, is made on day 15'h day of May, 2006 at Mattituck,New York. The parties are A131GAIL A. WICKHAM, as TRUS'T'EE under the Will of WILLIAM WICKHAM for the benefit of HELEN WICKHAM, having an address at 13015 Main Road, PO Box 1424, Mattituck. NY 11952 (herein called "Grantor"). and the PECONIC LAND TRUST, INCORPORATED, a not-for-profit New York Corporation, having a principal office at 2961lampton Road, P.O. Box 1776, Southampton, New York 11969 (herein called "Grantee"). IN'T'RODUCTION WHEREAS, Grantor is the owner in lee simple of certain real property located in the Town ol'Southold, Suffolk County, New York, more fully described in SCHEDULE A and shown on the Conservation Easement Map marked EXHiBIT A. both attached hereto, made a part hereof; and hereinafter referred to as the—Property"; further described as Suffolk County Tax Map Parcel Number 1000-101-1- p/o 8.1: and WHEREAS, the Property is a part ofa 32 acre parcel ol'undcveloped woodland and farmland owned by the Grantor(the Woodland): and WHEREAS, the Property is located in the Agricultural-Conservation (A-C) Zoning District of the Town of Southold, which designation, to the extent possible, is intended to prevent the unnecessary loss of those currently open lands which contain prime agricultural soils and open space as outlined in the'Town of Southold Code, Section 100-30, 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 the remainder of the Woodland may be further developed in accordance with the zoning regulations ol'the Town of Southold, and WHEREAS. the Property is within the Special Groundwater Protection Area established by Suffolk County, is located near a central dome of the sole source.aquifer for the North Fork, and its conservation is important for the protection of the sole source aquifer which is the primary source of drinking water to the Town of Southold, and WHEREAS, it is the policy of the'fown 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 i 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 Tovm's resort and agricultural economy. and WHEREAS.New York State and the United States of America have recognized the I importance of'private efforts to preserve land in a scenic, natural and open condition through conservation casements by enactment of Environmental Conservation law, Section 49-0301, et.seq. and Internal Revenue Code Seetion 2031, respectively, and I I WHEREAS. the Property contains significant wildlife,natural habitat,and forest; and WHEREAS, the Woodland has been identified as a priority project for conservation and potential acquisition by the Town of Southold, and is listed in the Town's Community Preservation Project Plan as an eligible property for acquisition under the Town's Community Preservation Fund; and WHEREAS, the Property has a total of 291 feet of road frontage on County Route 48, which has been designated as a Scenic Byway by New York State, and which offers the public significant scenic vistas of the Property from a highly traveled public highway; and WHEREAS, the Property in its present scenic, agricultural and open space condition has substantial and significant value as an aesthetic and agricultural resource by reason of the fact that it has not been subject to any development: and WHEREAS,the Property is part of the Suffolk County Agricultural District #I, and the Grantor wishes to continue using the Property in an agricultural capacity and as scenic open space as defined in the Town of Southold;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, natural, and scenic resource; and I 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 in fee simple of the Property described in SCHEDULE A. free of any mortgages or liens and possesses the right to grant this easement. I 0.02 Grantee's Status Grantee warrants and represents to Grantor that Grantee is a 501(c)(3) qualified not-for- profit charitable organization under Section 170(h)(3) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder(hereinafter called"the Code"). and incorporated under the Not-For-Profit Corporation Law of New York State for the purpose of conserving and preserving the unique environmental, agricultural, scenic and open space values of lands located in New York State. 2 0.03 Pumose The parties recognize the environmental, natural, scenic, natural habitat,and open space values of the Property, as well as compatible agricultural values,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, agricultural,and natural values, including associated habitat, air and water quality 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,and in accordance with the purposes of a Qualified Conservation Easement under Intemal Revenue Code Section 2031. 0.04 Government Recognition The federal Government has recognized the importance of private etiorts to preserve land in a scenic, natural, and open condition through conservation restrictions by enactment of Internal Revenue Code Section 2031. Similar recognition by the federal government includes Section 170(h) of the Internal Revenue Code and other federal statutes. 0.05 Grantee's Warranty Grantee warrants and represents that it possesses the intent and ability to enforce the terms of this Conservation Easement on the Property, and that the Property satisfies the criteria adopted by Grantee relating to the quality and characteristics of open land that should be protected and maintained as open land, as determined by the Board of Directors at a duly constituted meeting of that Board on April 24, 2006. 0.06 Documentation I 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 natural watershed, wildlife, scenic and open space resources and otherwise to aid in identifying and documenting the Property's open space values as of the date hereof, to assist Grantor and Grantee with monitoring the uses and activities on the Property and ensuring compliance with the terms hereof, Grantee has prepared, with Grantor's cooperation,an inventory of the Property's relevant features and conditions(the"Baseline Documentation"). This Baseline Documentation includes, but need not be limited to,an appraisal of the property acceptable to Grantee, a Conservation Easement Map marked EXHIBIT A,an aerial photograph, photographs of the Property, ,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 casement. 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 3 i of the date hereof, the parties shall not be foreclosed from utilizing any other relevant or material documents, surveys, reports, photographs,or other evidence to assist in the resolution of the controversy. 0.07 Recitation In consideration of the recited facts, mutual promises, undertakings,and forbearances contained in this Easement, the parties agree upon its provisions, intending to be bound by it and Grantor hereby voluntarily grants and conveys this Conservation Easement in perpetuity to Grantee. ARTICLE ONE THE EASEMENT 1.01 Type I 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 within 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. 4 ARTICLE THREE PROHIBITED ACTS From and after the date of this Easement, the following acts, uses and practices are prohibited forever upon or within the Property, except as otherwise specifically permitted by the provisions hereof. 3.01 Structures Except as provided in Article Four, the construction or placement of residential, commercial, industrial or other buildings, structures, or improvements of any kind or nature (including, but not limited to mobile homes), permanent or temporary, on,over,or under the Property, is prohibited. Structures and improvements, including, but not limited to, driveways and agricultural structures as permitted in Article Four hereof, may not be made on,over,or under the Property without the prior written consent of the Grantee. Single family residences are ; prohibited within the Property. 3.02 Excavation and Removal of Materials, Mining The excavating or filling of the Property, except as may be necessary to construct and maintain permitted structures and improvements on the Property, is prohibited, without the prior written consent of Grantee. 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 i permitted structures and improvements on the Property and for purposes of agricultural production,erosion control and soil management, without the prior written consent of Grantee. 3.03 Subdivision The subdivision or partitioning of the Property is prohibited, without the prior written consent of Grantee, which shall be granted if that subdivision or partition is consistent with the terms of this Easement. All or part of the Property may be conveyed, with Grantee's consent, to a governmental entity if designated as a public park, nature sanctuary or nature preserve. 3.04 Dumping The dumping or accumulation of unsightly or offensive materials including, but not limited to trash, garbage, sawdust, ashes or chemical waste on the Property is prohibited. This prohibition shall not prohibit materials used in the normal course of sound agricultural and forestry practices, including fertilization,composting and wood chips. (note addition to your form—including, etc.) 5 3.05 Signs The display of signs. billboards,or advertisements is 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 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, or (d)to announce Grantee's conservation easement. Signs shall not be more than six square feet in size. be non-illuminated, and are subject to regulatory requirements of the Town. Brightly colored signs not more than 1 foot square for posting no hunting or no trespassing and spaced periodically around the perimeter of the Property arc expressly permitted. 3.06 Cutting of Timber The cutting or harvesting of trees on the Property, is prohibited,except for the following purposes: (a) to clear and restore forest cover that has been damaged, diseased or destroyed(b) to prune and selectively thin trees to create limited vistas in accordance with good forest management practices and the purposes of this Easement, with the consent of the Grantee, (c) to construct and maintain the permitted structures and improvements. (d) for firewood and fencing for use on the Property or otherwise by the Owner or for Owner's personal use but not commercially without the consent of the Grantee, and (e)to remove hazards to persons or Property . 3.07 Soil and Water Any use or activity that causes or is likely to cause soil degradation or erosion or pollution of any surfaac or subsurface waters is prohibited, unless specifically permitted by this Easement. 3.08 landscaping Activities The removal of trees from the'Property is prohibited except in the course of agricultural production or as otherwise permitted by this Easement. 3.09 Utilities The creation or placement of overhead utility transmission lines, utility poles, wires, pipes, wells or drainage and septic systems on the Property is prohibited without the prior written consent of the Grantee. 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 the permitted structures unless otherwise permitted by the Grantee. 3.10 Uses Commercial-recreational uses are prohibited. The use of the Property for any commercial or industrial purpose is prohibited except as specifically permitted herein. Uses permitted in Article Four or related to the structures permitted in Article 4.06 shall not be considered commercial or industrial uses. 6 3.11 Drainage The use of the Property for a leaching or sewage disposal field is prohibited,except to service the permitted structures. The use of the Property for a drainage basin or sump is prohibited, except in accordance with sound agricultural management practices and in order to control Flooding or soil erosion on the Property or the Woodland. 3.12 Development Rights The use of the acreage of the Property for purposes of calculating lot yield on any other property is 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, except as othenvise permitted in this Easement, and the parties agree that such rights, except those required to carry out the permitted uses of and activities on the Property, are terminated and extinguished and may not be used or transferred to any other parcels. This shall not preclude use of the acreage of the Property for conservation or open space calculations under the Conservation Subdivision provisions of Chapter A106 of the Zoning Code of the'fown of Southold in computing the preservation percentage in a 75/75 or 80/60 conservation subdivision , so long as the area of the Property is not included in the computation of lot yield or development rights, subject to such further requirements or restrictions of the Town of Southold as may be applicable. ARTICLE FOUR GRANTOR'S RIGHTS 4.01 Ownership Subject to the provisions of ARTICLE THREE, Grantor shall retain all other customary rights of ownership in the Property, some of which are more particularly described in this ARTICLE FOUR. 4.02 Possession Grantor shall continue to have the right to.exclusivc 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. 7 4.04 Landscaping Activities Grantor shall have the right to landscaping, pruning and grounds maintenance on the Property. Grantor shall have the right to remove or restore trees, shrubs,or other vegetation when dead, diseased,decayed or damaged and as otherwise permitted in Section 3.06. 4.05 Agricultural Activities Grantor shall have the right to engage in all types of agricultural activity and agricultural production as the term is defined in Section 301 of the New York State Agriculture and Markets Lav, provided that such activity shall be conducted in accordance with the purposes and provisions of this Easement. Accessory structures, as permitted by 4.06A, and as may be reasonably necessary in connection with agricultural use and the maintenance on the Property of horses, sheep, beef or dairy cattle,or similar domestic livestock, may be constructed, maintained or replaced by Grantor with the prior written consent of the Grantee and are subject to appropriate governmental approval. Any such uses shall, however, maintain the integrity of the forested nature of the Property and shall not be construed to permit clear cutting or other substantial removal of trees(unless same is substantially destroyed by natural causes). 4.06 Structures A. Allowable Non-Residential Improvements Grantor shall have the right to erect and maintain the following non-residential improvements on the Property which are necessary to and consistent with the agricultural uses as permitted herein, with the prior written consent of Grantee: � I (i) Modest agricultural structures, including but not limited to sheds, bams and silos as are necessary for the agricultural uses of the Open Space, not to exceed 4,000 square feet in the aggregate, placed so that they do not detract from or adversely affect the conservation values protected by this Easement; and . (ii) Access drives, to provide access to the improvements permitted by this Section 4.06; and (iii) Underground facilities used to supply utilities, septic systems, leaching fields, and control stormwater runoff from the improvements permitted under the terms of this paragraph A. (iv) Fences, if they arc placed so that they do not block or detract from the scenic view of the Property, may be constructed without the prior written consent of Grantee. (v) A nature trail or footpath for access within the Property and to the remainder of the Woodland for the sole use of the owners, tenants,occupants,assigns,and 8 possessors of the Property,and limited non-habitable structures related to such uses, subject to regulatory approvals. (vi) Deer stands and other unobtrusive hunting structures, without the prior written consent of the Grantee. B. Environmental Sensitivity During Construction The use and location of any improvement permitted to be constructed hereunder shall be consistent with the conservation purposes intended herein,and construction of any such improvement shall minimize disturbances to the environment. Grantor shall employ erosion and sediment control measures to insure that storm water runoff will not cant'eroded and other deleterious materials into adjacent areas, including but not limited to minimal removal of vegetation, minimal movement of earth and minimal clearance of access routes for construction vehicles. 4.07 Notice Subject to the terms of this Agreement,Grantor shall notify Grantee, in writing, before taking any action requiring Grantee's consent or before exercising any reserved right with respect to the Property requiring Grantee's consent, which could adversely affect the environmental, scenic,open space, natural habitat, and agricultural purposes which are the subject of this Easement. Grantor shall provide Grantee with complete documentation including information on the need for and use of such structures, and sketches or plans of any proposed structures, which are subject to Grantee's approval. The request for approval shall describe the nature, scope, location,timetable and any other material aspect of the proposed improvement or activity in sufficient detail to permit Grantee to evaluate the proposal. Approval, disapproval or comments of Grantee shall be given to Grantor within 45 days after all necessary documentation and information is submitted to Grantee. If, after 45 days, Grantor has not received any response from Grantee to such submission, then Grantor shall notify Grantee in writing that is has not received any response to such submission. If Grantee fails to respond to such second notice with 10 days thereafter, then Grantee shall be deemed to have approved Grantor's proposed action or request. Whenever an action by Grantor requires the approval of Grantee, it is understood Grantor must also obtain any required governmental approvals for the action. i i Any consent required by Grantee hereunder shall not be unreasonably withheld or delayed,and shall be granted if the request does not defeat or derogate from the purposes of this Easement; provided, however, that the improvement which is the subject of any request for which Grantee's consent is required under Section 4.06 shall meet the requirements set forth in Section 4.06 for that particular improvement. Any reference to activities permitted or allowed by this Easement shall include those for which Grantee's consent is required. 9 4.08 Alienability Grantor shall have the right to convey, mortgage or lease all 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 il'known to the Grantor, the individual principals thcrcoE under any such conveyance. The instrument of any such conveyance shall specifically set forth that the interest thereby conveyed is subject to this Easement. without modification or amendment of the terms of this Easement, and shall incorporate this Easement by reference, specifically setting 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 rights hereunder or the validity of this Easement. ARTICLE FIVE GRANTOR'S OBLIGATIONS ! 5.01 Taxes and Assessments Grantor shall continue to pay all taxes, levies, and assessments and other governmental or municipal charges, which may become a lien on the Property, including any taxes or levies imposed to make those payments. If Grantor fails to make such payments, Grantee is authorized to make such payments (but shall have no obligation to do so) upon tcn days prior written notice to Grantor, according to any bill, statement or estimate procured from the appropriate public office without inquiry into the accuracy thereof. That payment, if made by Grantee, shall become a lien on the Property of the same priority as the item if not paid would have become, and shall bear interest until paid by Grantor at the prime rate of interest from time to time charged by Citibank, N.A., or its corporate successor. 5.02 Indemnification Grantor shall indemnifv and hold Grantee harmless for any liability, costs, reasonable 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 are considered Grantor's sole obligations. 5.03 Third Party Claims Grantor shall indemnify and hold Grantee harmless for any liability, costs, reasonable 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 ofany 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. 10 ARTICLE SIX GRANTEE'S RIGHTS 6.01 Entry and Insnection I Grantee shall have the annual right to enter upon the Property at reasonable times, upon prior written 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 pursuant to 6.03 (ii) hereof, nor to permit access upon the Property by the public, or governmental regulatory or law enforcement personnel. 6.02 Restoration i 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 arc 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 sixty(60)days notice thereol'by Grantee(which notice requirement is expressly waived by Grantor with respect to any such breach,default or violation which, in Grantee's reasonable judgment, requires immediate action to preserve and protect any of the open space values or otherwise to further the purposes of this Easement), Grantee shall have the right at Grantor's sole cost and expense and at Grantee's election. (i) To institute a suit to enjoin or cure such breach, default or violation by temporary and/or permanent injunction. (ii) On notice to Grantor, to enter upon the Property and exercise reasonable efliirts to terminate or cure such breach,default or violation and/or to cause the restoration of that portion ol'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 11 waiver or a forfeiture of any right or available remedy on Grantee's part with respect to such breach, defimlt, 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 attornev's fees,court costs and other expenses incurred by Grantee(herein called "Legal Expenses") in connection with any proceedings under this Section. 6.05 No Waiver Grantee's exercise of one rcmcdv or relief under this ARTICLE SIX shall not have the efTcct 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 reliefat 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 organisation' 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 organised 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. Grantee shall notify Grantor prior to any such assignment. 6.07 Succession If at any time Grantee or any Assignee is unable to enforce this Easement, or il'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 defined and upon the conditions contained in Section 6.06 as the Grantee shall designate. If, on the occurrence of any of these events, Grantee or any successor or assignee fails to assign all of its rights and responsibilities under this Easement and all of its rights, title and interest in and to i 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 gy Drcs proceeding brought in any court of competent jurisdiction. 12 6.08 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 or the date hereof, between the fair market value of the Property subject to this Easement and the fair market value of the Property if unencumbered hereby. Such difference, divided by the fair market value of the Property unencumbered by this Easement, is hereinafter referred to as the"Proportionate Share". The Proportionate Share of this Easement is 85%as based on the Grantor's appraisal dated May I,2006 and filed as part of the Baseline Documentation Report reflected in Section 0.06. 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 exercise of the power of eminent domain, the sale price or condemnation award shall establish fair market value. Absent such a sale, the Property's fair market value shall be established by independent appraisal. Ifall or any part of the Property is taken under the power of eminent domain by public, corporate, or other authority, or otherwise acquired by such authority through a purchase in lieu of a taking. so as to abrogate the restrictions imposed by this Easement or otherwise effectively to frustrate the purposes hereof, Grantor and Grantee shall join in appropriate proceedings at the time of such taking to recover the full value of the interests in the property subject to the taking and all incidental or direct damages resulting from the taking. All expenses reasonably incurred by the parties to this Easement in connection with such taking shall be paid out of the recovered proceeds. Grantee shall be entitled to the Proportionate Share 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 reason of changed conditions or the exercise of powers of eminent domain as aforesaid. ARTICLE SEVEN MISCELLANEOUS 7.01 Entire Understanding This Easement contains the entire understanding between its parties concerning its subject matter. Any prior agreement between the parties concerning its subject matter shall be merged into this Easement and superseded by it. 13 7.02 Amendment This Easement is made with the intention that it shall quality as a Conservation Easement in perpetuity under Code Section 170(h). The parties agree to amend the provisions ofthis Easement if such amendment shall be necessary. to entitle Grantor to meet the requirements of Code Section 170(h). Any such amendment shall he consistent with the Purpose of this Conservation Easement, shall not affect its perpetual duration, shall not permit residences on the Property, and shall not permit any impairment of the significant conservation values of the Property. Any such amendment shall apply retroactively in the same manner as if such amendment or amendments had been set forth herein. This Easement can be terminated or modified in accordance with the common and statutory law of the State of New York applicable to the termination and modification of easements and covenants running with the land. Grantee and Grantor shall mutually have the f right to agree to amendments to this Easement that arc not inconsistent with the purposes of this Easement set forth in the herein, provided however, that Grantee shall have no right or power to agree to any amendments hereto that would result in this Easement failing to qualify as a valid Conservation Easement under Article 49, Title 3 of the Environmental Conservation Law of the State of New York, as the same may be hereafter amended, any regulation issued pursuant thereto, or Section 170(h) of the Code governing"qualified conservation contributions". The parties acknowledge that the boundaries of the Property may have to be adjusted to accommodate the Town of Southold if the Property is subdivided as permitted in Section 3.03 and the parties agree to cooperate in such boundary line adjustments as permitted, provided said adjustments would not result in diminution of the Property or an increase in the arca which may be developed by the Grantor. 7.03 Sevcrabilitv Any provision of this Easement restricting Grantor's activities, which is determined to be invalid or unenforceable by a court ofcompetent jurisdiction, shall not he 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 of competent jurisdiction 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 express, certified or registered mail, return receipt requested,or by certified mail, with sufficient prepaid postage affixed and with return receipts requested. Mailed or expressed 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. 14 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,except as provided in Section 7.06 hereof. 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 dratted 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 panics to effectuate its purposes. 7.07 Public Access Nothing contained in this Easement grants, nor shall be interpreted to grant, to the public any right to enter upon the Property. 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. IN WITNESS WHEREOF. Grantor has executed and delivered and Grantee has accepted and IS received this Deed of Conservation Easement on the day and year set forth above. ACKNOWLEDGED AND ACCEP'fliD: tA�biailA. Wickham, Trustee U/W Wickham f/b/o Helen Wickham ACKNOWLEDGED AND ACCEPTED: PECVnmij ST, INCORPORA'T'ED (Grantee) BY: cld STATE OF NEWYORK ) COUN'T'Y OF SUFFOLK ) SS: On this/L day of May in the year 2006 before me, the undersigned, personally appeared Abigail A. Wickham, personally known to me or proved to me on the basis ot'satist'actory evidence to be the individual(s) whose names) is (are)subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s)on the instrument, the.individual(s), or the person upon behalf of which the individual(s) gLIEd. cxecutc:4 the instrument. /Yl Notary Public Cheryl Simons Notary Public,State Of New Ybrk No.314970341 STATE OF NEW YORK ) Commission onlExpiresIn Suffolk County COUNTY 01. SUFFOLK ) SS: Februa 4,20,,(0 On this/9day of May in the year 2006 before me,the undersigned, personally appeared Timothy J. Cautield,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(ics), and that by his/her/their signature(s) on the instrument. the individual(s). or the person upon behalf of which i the individual(s)acted.executed tlip*pstrument. Cheryl iinuia Notary Public,State Of New York No.31.4970341 Notary Public Oualitied In Suffolk County Commission Expires February 4,20 SCHEDULE A: Metes and Bounds Description ol'the Property EXHIBIT A: Conservation Easement Arca Map: Survey of John C. Ehlers. land Surveyor, dated March 2. 2006 with Easement Created May 12. 2006 Est2/wickham/conseaseww 16 Schedule A 8 acre Conservation Easement description: Abigail A.Wickham,Trustee Under Will of William Wickham for benefit of Helen Wickham to Peconic Land Trust, Incorporated: SCTM#1000-101-1-8.1 At Cutchogue, in the Town of Southold, County of Suffolk and State of New York, BEGINNING at a point on the northerly side of Middle Road, (CR 48)where same is intersected by the westerly side of land now or lormerly of Edwin Martinez: RUNNING TI IENCE along the northerly side of Middle Road(CR 48) South 61 degrees 23 minutes 40 seconds West, 290.93 feet to other land of Wickham; RUNNING THENCE through said lands the following two (2)courses and distances: (1) North 29 degrees 41 minutes 20 seconds West 709.02 feet; thence (2) South 55 degrees 46 minutes 40 seconds West 630.52 feet to land now or formerly of First Baptist Church of Long Island: i RUNNING THENCE along said land South 34 degrees 13 minutes 20 seconds East,442.79 feet to land now or formerly of Falk: RUNNING THENCE along said land and land of others South 71 degrees 08 minutes 40 seconds West. 384.60 feet: RUNNING THENCE along land now or formerly of Martinez South 30 degrees 25 minutes 20 seconds East, 396.13 feet to the point or place of BEGINNING. E2/xjc/dmm/deseease8 Exhibit "A" SURVEY OF PROPERTYTOM.SOUTHOLD t SUFFOLK CAMA",W w•�m uweyimw«m /. , .l t'S9'.\::' wE 1 Go t , ;4a J h^ rp ~ 79h 4 b$ Y :l 0' .e nrh '��\riL• "•a 4 53• :�y 1S• � J t"1? 9s rye wio , 'i '''' . ie•wI.w,iee w�Halo ___ rsne w/enr vnatw�'�ew�M�esrwrn `p\� _:_e eraw�t -Az�r_y-/ ___= u ,� eb aao JOHN C.EWERS LAND SURVEYOR .�gsnem a.avcxaa® I r®MIDI @mOIaQ.RyV�I"r