HomeMy WebLinkAbout1000-22.-3-9.1
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DEED OF CONSERVATION EASEMENT
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THIS DEED OF CONSERVATION EASEMENT, is made on the 02~j~ay of December, 1997 at
Southampton, New York. The parties are Raoul J. Witteveen, residing at 368 Daniels Lane,
Sagaponack, New York 11962 (herein called the "Grantor"), and the PECONIC LAND TRUST,
INCORPORATED, a not-for-profit New York Corporation, having a principal olliceat 296.
Hampton Road (P.O. Box 2088), Southampton, New York 11969 (herein called "Grantee").
INTRODUCTION
WHEREAS, the Grantor is the owner in fee simple of approximately 98.38 acres of real
property located in the Town of Southold, Suffolk County, New York, known as Final Plat of Map
of Cove Beach Estates, dated November 27, 1996, hereinafter more fully described in Schedule
A, attached hereto and hereby made a part hereof, and hereinafter referred to as the
"Property", further described as Suffolk County Tax Map Parcel Number 1000-22-3-15.1
and 18.3; and
WHEREAS, the Property is located in the Low Density Residential R-80 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 as
outlined in the Town of Southold code, Section 100-30; and
WHEREAS, the Property is currently restricted by a Conservation Easement held by
Peconic Land Trust executed on December 23, 1995, and recorded in the Suffolk County Clerk's
Ollice on December 29, 1995 at Liber 11756 Pg. 282, and known as the 1995 Easement,
which restricted the property from a yield of thirty four (34) single family residences to
twenty six (26) single family residences; and
WHEREAS, the 1995 Deed of Conservation Easement was amended on December 18th,
1996, which Amendment of Deed of Conservation Easement was recorded on December 31, 1996
at the Suffolk County Clerk's Ollice, to further restrict the Property to seventeen (17) single
family residences with appurtenant structures and improvements, thereby creating an Open
Area equal to 46.70 acres, and a Development Area equal to 51.68 acres; and
WHEREAS, Grantor wishes to further restrict the Property in consideration of the
conservation values of the Property and as a product of his own charitable intentions by
granting a Conservation Easement over the Property thereby restricting the Development Area
to no more than ten (10) single family residences with appurtenant structures and
improvements, and thereby increasing the Open Area from 46.70 acres to 68.82 acres (as
described in Schedule B attached hereto) and to reduce the Development Area from 51.68 acres
to 29.56 acres (as described in Schedule C, attached hereto) so that a substantial portion of the
Property shall remain in its open, undeveloped and scenic state, and to that end restates the
restrictions applicable to the entire parcel; and
WHEREAS, the Property contains soils classified as Class I and Class II worthy of
conservation as identified by the United State's Department of Agriculture Soil Conservation
Service's Soil Survey of Suffolk County. New York; 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, the Property has approximately 650 feet of frontage on Long Island Sound and
approximately 450 feet of frontage on Dam Pond that provides the public with significant scenic
vistas of contiguous woodland, wetlands and shoreline; and
WHEREAS, the Property contains the following rare species, classified as S-1 by the
Natural Heritage Program: Angelica Lucida, Maritime Red Cedar Forest (remnant), Erchtites
Megalocarpa (fire weed), Petentilla anserina, sub species sb.pacifica (silver weed) and
Digitaria Filisormis species; and
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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 extensive development; and
WHEREAS, the Grantor and Grantee recognize the value and special character of the
region in which the Property is located, and the 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 Open Area as an aesthetic, natural, scenic and agricultural resource; and
WHEREAS, the Grantee has determined it to be desirable and beneficial and has requested
the Grantor, for itself and its successors and assigns, to grant a Conservation Easement to the
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 qualified not-for-profit
charitable organization under Section 170(h)(3) of the Internal Revenue Code of 1986, and
any amendatory or supplemental legislation (herein 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 rural lands
located in Suffolk County of Long Island.
0.03 Purpose
The parties recognize the environmental, scenic, open space and agricultural values of
the Open Area 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 environmental, scenic,
agricultural and natural values, by preventing the use or development of the Open Area for any
purpose or in any manner contrary to the provisions hereof, in furtherance of federal, New
York State and local conservation policies.
o 04 Government Recognition
New York State has recognized the importance of private efforts to preserve rural land
in a scenic, natural and open condition through conservation restrictions by enactment of
Environmental Conservation Law, Article 49-0301, et. seq. and General Municipal Law, Section
247. Similar recognition by the federal government includes Section 170(h) of the Internal
Revenue Code and other federal statutes.
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, as determined by its Board of Directors,
at a duly constituted meeting of that Board on November 13, 1995, 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.
0.06 Documentation
The Grantee acknowledges by acceptance of this Easement that Grantor's historical and
present uses of the Property are compatible with the purposes of this Easement. Grantor has
made available to Grantee sufficient documentation to establish the condition of the Property at
the time of the gift of this Easement. In order to aid in identifying and documenting the present
condition of the Property's natural, wildlife, watershed, scenic, agricultural and aesthetic
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resources and otherwise to aid in identifying and documenting the Property's open space values
as of the date hereof, to assist the Grantor and Grantee with monitoring the development and use
of the Property and ensuring compliance with the terms hereof, the Grantee has prepared, with
the Grantor's full 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 aerial photograph, photographs of the Property, a topographical map, a description and
site plan of existing land uses, features, and structures, if any, and an aCknowledgment page
signed by the Grantor and the Grantee which verifies that the Baseline Documentation report
accurately represents the condition of the Property at the time of the easement. The Grantor and
Grantee acknowledge and agree that in the event a controversy arises with respect to the nature
and extent of the Grantor's historical iind present 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.
0.07 Recitation
In consideration of the previously recited facts, mutual promises, undertakings and
forbearances contained in this Easement, the parties agree upon its provisions, intending to be
bound by it.
ARTICLE ONE
THE EASEMENT
1.01 Type
This Deed conveys a Conservation Easement (herein called the "Easement"). This
Easement shall consist of the covenants, restrictions, rights, terms, and condi.tions recited in
this Deed. Reference to this "Easement" or its "provisions" in this Deed 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
The covenants, terms, conditions, restrictions and purposes of this Easement shall run
with the Property as an incorporeal interest in the Property, and shall bind the successors and
assigns of each of the parties respectively. This Easement 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. 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 1WO
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GRANTOR hereby voluntarily grants, releases and conveys to Grantee, as an absolute gift,
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 and all future owners,
tenants, occupants, assigns and possessors of said Property.
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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
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 except pursuant to Section
4.05 and 4.06 hereof. Structures and improvements, including, but not limited to, driveways
and agricultural structures as permitted in Sections 4.05 and 4.06 hereof, may not be made on,
over, or under the Property without the prior written consent of the Grantee, which may be
granted if the structure or improvement does not defeat or derogate from the purposes of this
Easement.
3.02 Excavation and Removal of Materials
The excavating, mining or filling of the Property except as may be necessary to develop
and maintain the single-family residences and appurtenant structures and improvements
permitted in the Development Area and allowable non-residential improvements on the
Property and to construct and maintain the permitted structures and improvements in the Open
Area with the prior written consent of the Grantee. The removal of topsoil, sand, or other
materials shall not take place on the Property nor shall the topography of the Property be
changed except to develop and maintain the single-family residences and appurtenant structures
and improvements permitted in the Development Area, to construct and maintain the permitted
slructures and improvements in the Open Area and for purposes of erosion control and soil
management. Any such activity shall require the written consent of the Grantee.
3.03 Subdivision
The subdivision or partitioning of the Property without the prior written consent of the
Grantee, which shall be granted if that subdivision or partition does not defeat or derogate from
the purposes of this Easement. In no event shall the Development Area be subdivided into more
than ten (10) single-family residential lots as provided in Section 4.06 hereof, and none of the
10 lots shall be further subdivided in perpetuity unless the lot lines merge. Any changes in lot
lines subsequent to final subdivision approval must be authorized by the Town of Southold
Planning Board. _
3.04 DumDing
The dumping or accumulation of unsightly or offensive materials including, but not
limited to trash, garbage, sawdust, ashes or chemical waste on the Property.
3.05 Sians
The display of signs, billboards, or advertisements on tlie Property except signs, whose
placement, number, and design do not significantly diminish the scenic character of the
Property and only for the following purposes: a) to state the name of the Property and the names
and addresses of the occupants, b) temporarily to advertise the Property or any portion thereof
for sale or rent, c) to post the Property to control unauthorized entry or use, and d) to
announce the Grantee's conservation easement.
3.06 Clearina and Landscaping Activities
Clearing or grading within the Open Area, except with the prior written consent of
Grantee and as approved by the Town of Southold Planning Board and as necessary for existing
easements of record, if any. Otherwise, the Open Area shall remain in a natural state, and
maintenance of the natural vegetation therein shall be the only use or activity allowed, except as
provided in Section 4.05. The removal of trees, shrubs, or other vegetation from the Property,
except as provided in Sections 4.04 and 4.06.
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3.07 Utilities
The creation or placement of overhead utility transmission lines, utility poles, wires,
pipes, wells or drainage and septic systems on the Open Area without the prior written consent"
of the Grantee. Underground utilities must, to the extent possible, be constructed within 30 feet
of the center line of roads or driveways, and may be used solely to service the permitted
structures.
3.08 Uses
The use of the Property for any commercial or industrial purpose except that
agricultural uses expressly permitted in Section 4.05 shall not be considered a commercial or
industrial use.
3.09 Develooment Rights
The use of the acreage of this Property burdened with this Easement for purposes of
calculating lot yield on any other property. Grantor hereby grants to Grantee all residential
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 this Easement, 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 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,
and federal law which will not defeat or derogate from the purposes of this Easement.
4.04 Landscaoing Activities
Grantor shall have the right to continue the historical modes of landscaping, pruning and
grounds maintenance on the Property. Grantor shall have the right to remove or restore trees,
shrubs, or other vegetation when dead, diseased, dangerously decayed or damaged on the
Property.
Clearing, cutting and grading within 50 feet of the top edge of the bluff shall be limited to
that necessary for proper maintenance and removal of diseased, decayed or dead material and
obnoxious plant species. Such clearing, cutting and grading shall be subject to the prior written
consent of Grantee and review by the Town of Southold Planning Board to insure proper
maintenance and preservation of the natural buffer on Long Island Sound.
4.05 Aaricultural Activities
Grantor shall have the right to continue or restore the historical, locally typical and/or
customary modes and levels of farming, including pasturing, grazing, feeding and care of
livestock and cultivation of crops, provided that such agricultural activity shall be conducted in
accordance with the purposes of this Easement and provided that care shall be taken to preserve
and protect the rare species of plant life. No agricultural activity shall be conducted within
100 feet of the rare species so that agricultural use of the soil and the application of herbicides
cannot affect the rare species. Normal agricultural fencing and accessory structures, as
provided in 4.06 B, 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
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livestock, may be constructed, maintained or replaced by Grantor with the prior written
consent of the Grantee.
4.06 Structures
A. Allowable Residential Improvements.
Grantor shall have the right to construct no more than ten (10) single-family
residences with appurtenant structures and improvements reasonably necessary to serve such
residences including, without limitation, driveways, garages, storage sheds, septic systems and
leaching pools, swimming pools, pool houses, tennis courts, or other family-scale athletic
facilities. All such residences, structures and improvements shall be constructed, maintained
and replaced within the Development Area as described in Schedule C except as provided in
Section 3.01. Clearing and grading within each residential lot shall be limited to that necessary
for siting, constructing, renovating, expanding, converting or replacing the residences and
appurtenant structures and improvements with the intent of preserving as much of the natural
vegetation on the site as possible and minimizing storm water runoff and erosion. No storm
water runoff resulting from the development and improvement of the subdivision or any of its
lots shall be discharged down the face of the bluff.
B. Allowable Non-Residential Improvements.
Grantor shall have the right to erect and maintain the following non-residential
improvements in the Open Area which are necessary to and consistent with the uses as permitted
in Sections 4.05 and 4.06 hereof:
( i ) Agricultural Structures, including but not limited to barns and sheds as is
necessary for the agricultural use of the Open Area, placed such that they do not
detract from and adversely affect the scenic value of this Easement; and
( i i ) Underground facilities normally used in connection with supplying utilities,
removing sanitary sewage effluent, and controlling storm water runoff from the
improvements permitted under the terms of this paragraph B hereof. Any such
underground utilities must, to the extent possible, be constructed within 30 feet
of the center line of roads or driveways, and may be used solely to service the
permitted structures. No new sanitary disposal facilities or structures, with the
exception of that stated in Paragraph (iii) below, shall be constructed or
otherwise located between the high water mark and the one-hundred (100) foot
setback from the top of the bluff; and
( i i i ) Access Drives, to provide access to the improvements permitted by this
paragraph 4.06 and any existing recorded rights-of-ways to adjacent properties.
Access to the beach down the face of the bluff shall be only by means of a suitable
structure. The structure shall be designed and constructed in a manner that will
result in the least threat to the stability of the bluff and must be in accordance
with all applicable permits; and
( i v ) Fences, placed such that they do not detract from and adversely affect the scenic
value of this Easement; and
C. Replacement of Structures In-Kind.
In the event of damage resulting from casualty loss to an extent rendering repair of an
existing improvement impractical, erection of a structure of comparable size, bulk, use, and
general design to the damaged structure shall be permitted within the same location subject to
the review and written approval of Grantee.
D. Environmental Sensitivity During and After Construction.
The use and location of such improvements shall be consistent with the conservation
purposes intended herein, and constructed by methods which are attentive to minimizing
disturbances to the environment, including but not limited to minimal removal of vegetation,
minimal movement of earth and minimal clearance of access routes for construction vehicles.
No storm water runoff resulting from the development and improvement of the subdivision or
any of its lots shall be discharged down the face of the bluff.
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4.07 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 conservation
purposes which are the subject of this Easement. This includes the construction of any
permanent or temporary structures as provided in Section 4.06 herein. Grantor shall provide
Grantee with complete documentation including architectural plans of any proposed structures
which are subject to Grantees approval which shall not be unreasonably withheld. 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.
4.08 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 names and mailing addresses of all
Grantees, and the individual principals thereof, under any such conveyance. The instrument of
any such conveyance shall specifically set forth that the interest thereby conveyed is subject to
this Easement, without modification or amendment of the terms of this Easement, and shall
incorporate this Easement by reference, specifically setting forth the date, office, Iiber and
page of the recording hereof. The failure of any such instrument to comply with the provisions
hereof shall not affect Grantee's rights hereunder.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments and other governmental
or municipal charges which may become a lien on the Property, including any taxes or levies
imposed to make those payments. If Grantor fails to make such payments, Grantee is authorized
to make such payments (but shall have no obligation to do so) upon ten days prior written notice
to Grantor, according to any bill, statement or estimate procured from the appropriate public
office without inquiry into the accuracy thereof. That payment, if made by Grantee, shall
become a lien on the Property of the same priority as the item if not paid would have become,
and shall bear interest until paid by Grantor at two percentage points over the prime rate of
interest from time to time charged by Citibank, N.A.
5.02 Indemnification
Grantor shall indemnify and hold Grantee harmless from any charges or liens imposed
upon Grantee arising from the physical maintenance and upkeep 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.
5.03 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.
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ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee shall have the right to enter upon the Property at reasonable times, upon
reasonable prior notice to Grantor, and in a manner that will not interfere with the 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 6.03, nor to
permit access upon the Property by the public.
6.02 Restoration
Grantee shall have the right to require the Grantor to restore the Property to the
condition required by this Easement and to enforce this right by any action or proceeding that
the Grantee may reasonably deem necessary. However, it is understood and agreed by the
parties hereto that the 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 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 thirty (30) days notice thereof by Grantee (which
notice requirement is expressly waived by Grantor with respect to any such breach, default or
violation which, in Grantee's reasonable judgment, requires immediate action to preserve and
protect any of the Open Space Values or otherwise to further the purposes of this Easement),
Grantee shall have the right at Grantor's sole cost and expense and at Grantee's election, (i) to
institute a suit to enjoin or cure such breach, default or violation by temporary and/or
permanent injunction, (ii) to enter upon the Property and exercise reasonable efforts to
terminate or cure such breach, default or violation and/or to cause the restoration of that
portion of the Property affected by such breach, default or violation to the condition that existed
prior thereto or on the date hereof, or to such condition as is expressly permitted hereby or as
may be pursuant to the terms hereof, as Grantee deems appropriate under the circumstances, or
(iii) to seek or enforce such other legal and/or equitable relief or remedies as Grantee deems
necessary or desirable to ensure compliance with the terms, conditions, covenants, obligations
and purposes of this Easement; provided, however, that any failure, delay or election to so act
by Grantee shall not be deemed to be a waiver or a forfeiture of any right or available remedy on
Grantee's part with respect to such breach, default, or violation or with respect to any other
breach, default or violation of any term, condition, covenant or obligation under this Easement.
Grantor shall pay, either directly or by reimbursement to Grantee, all reasonable attorneys'
fees, court costs and other expenses incurred by Grantee (herein called "legal expenses") in
connection with any proceedings under this Section 7.03.
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 Assionability
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 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. Any assignment by Grantee or Grantee's successors must require the Assignee or
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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.
6.06 Succession
If at any time Grantee or any successor or assignee is unable to enforce this Easement
fully or fails to do so, or if Grantee or any successor or 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 other qualified corporation, body or agency as 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 ExtinQuishment
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 Share"). In the event a material
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 or
any material term or provision hereof by a jUdicial proceeding; then upon a subsequent
transfer of title to the Property by sale, gift, devise, exchange, taking by eminent domain or by
purchase in lieu of a taking, Grantor shall pay to Grantee an amount equal to the greater of (x)
the consideration paid by Grantee to Grantor for this Easement or (y) the Proportionate Share
of the proceeds of such transfer.
If all or any part of the Property is taken under the power of eminent domain by public,
corporate, or other authority, or otherwise acquired by such authority through a purchase in
lieu of a taking, so as to abrogate the restrictions imposed by this Easement or otherwise
effectively to frustrate the purposes hereof, Grantor and Grantee shall join in appropriate
proceedings at the time of such taking to recover the full value of the interests in the Property
subject to the taking and all incidental or direct damages resulting from the taking. All expenses
reasonably incurred by the parties to this Easement in connection with such taking shall be paid
out of the recovered proceeds. Grantee shall be entitled to the Proportionate Share of the
remaining recovered proceeds. The 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.
6.08 No Public Access
Nothing contained in this Easement grants, nor shall be interpreted to grant, to the
public any right to enter upon the Property. Accordingly, Grantee shall not invite the public to
enter upon the Property without the prior written consent of the Grantor.
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.
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7.02 Amendment
This Easement is made with the intention that it shall qualify as a Conservation Easement
in perpetuity under I.R.C. Section 170 (h). The parties agree to amend the provisions of this
Easement in such manner as may be indicated by the Internal Revenue Service, as a result of
final determination after audit of the federal income tax return of the Grantor, to entitle the
Grantor to the charitable deduction described in I.R.C. Section 170 (h). Any such amendment
shall apply retroactively in the same manner as if such amendment or amendments had been set
forth herein.
This Easement can be terminated or modified only 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. Grantor and Grantee recognize that
circumstances could arise which would justify the modification of certain of the restrictions
contained in this Easement. To this end, Grantee and Grantor shall mutually have the right, in
their sole discretion, to agree to amendments to this Easement which are not inconsistent with
the basic 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, or Section 170(h) of the Internal Revenue
Code governing "Qualified Conservation Contributions."
The parties acknowledge that the boundaries of the Open Area and the Development Area
may have to be adjusted as provided herein, and the parties agree to cooperate in such boundary
line adjustments as may be necessary, provided said adjustments would not result in diminution
of the Open Area or an increase in the number of lots or primary structures to be developed by
the Grantor.
7.03 Severability
Any provision of this Easement, restricting Grantor's activities, which is determined to
be invalid or unenforceable by a court, shall not be invalidated. Instead, that provision shall be
reduced or limited to whatever extent that court determines will make it enforceable and
effective. Any other provision of this Easement which 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 given either by
manual delivery or by mailing in a mail receptacle maintained by the United States Postal
Service. Mailed notice must be contained in an accurately addressed, sealed envelope, marked
for delivery by first class registered or certified mail, with sufficient prepaid postage affixed
and with return receipt requested. Maiied 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 Governino 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 Easernent 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
Ea1!ement as intended by Grantor. Any rule of strict construction designed to limit the breadth of
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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 Grantor. 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 Warranties
The warranties and representation made by the parties in this Easement shall survive
its execution.
7.08 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.
7.09 Headings
The headings, titles and subtitles herein have been inserted solely for convenient
reference, and shall be ignored in its construction.
1 1
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.
BY:
ACKNOWLEDGED AND ACCEPTED:
PECONIC LAND TRUST, (Grantee)
tl\c.c>rf'"ro*-<.cl
BY: ~v. u.. L\..t..... ./
oh v.H. Halsey '0
Its President
STATE OF NEW YORK )
COUNTY OF SUFFOLK) SS.:
On this ;l,~t'1 day of December, 1997, before me personally appeared Raoul J. Witteveen,
who, being by me duly sworn, said that he resides at 368 Daniels Lane, Sagaponack, New York,
11962, the Grantor mentioned and described in, and who executed the foregoing instrument, and
he duly acknowledged to me that he executed the same.
STATEOFNEWYORK )
COUNTY OF SUFFOLK ) SS.:
~ Jd..J'~
N tary Public Julie G. Tiska No. 01Tl5064466
Notary Public State of New York
Qualified in Suffolk County
Commission Expires :rl/51Lq9'
On this 0l4f1' day of December, 1997, before me personally appeared JOHN v.H.
HALSEY, who, being by me duly sworn, said that he resides at 469 Majors Path, Town of
Southampton, New York, that he is President of PECONIC LAND TRUST, INCORPORATED, the
Grantee mentioned and described in and which acknowledged and accepted all of the rights and
responsibilities under the foregoing instrument and this Easement conveyed therein; and that he
signed his name thereto by authority of the Board of Directors of the said Corporation.
~)i.j'~
N tary Public Julie G. Tiska No. 01Tl5064466
Notary Public State of New York
Qualified in Suffolk County
Commission Expires :?l'~b'll"
SCHEDULE A: Metes and Bounds Description of the Property.
SCHEDULE B: Metes and Bounds Description of the Open Area.
SCHEDULE C: Metes and Bounds Description of the Development Area.
12