HomeMy WebLinkAboutL 12686 P 803SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT
Number of Pages: 39
Receipt Number : 12-0026235
TRANSFER TAX NUMBER: 11-15489
District:
1000
Deed Amount:
Recorded:
At:
LIBER:
PAGE:
Section: Block:
031.00 05.00
EXAMINED AND CHARGED AS FOLLOWS
$0.00
Received the Following Fees For Above Instrument
Exempt
Page/Filing $195.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert. Copies $0.00 NO RPT
Transfer tax $0.00 NO Comm. Pres
Fees Paid
TRANSFER TAX NUMBER: 11-15489
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
JUDITH A. PASCALE
County Clerk, Suffolk County
03/05/2012
04:34:49 PM
D00012686
803
Lot:
006.001
$20.00
$15.00
$0.00
$30.00
$0.00
$270.00
Exempt
NO
NO
NO
NO
NO
Number of pages
This document will be public
record. Please remove all
Social Security Numbers
prior to recording.
Deed / Mortgage Instrument
Deed / Mortgage Tax Stamp
31
FEES
RECORDED
2012 Mar 05 04:34:49 PM
JUDITH ~, PASCALE
CLERK OF
SUFFOLK COUNTV
L P00012686
P 805
DT~ 11-15489
Recording / Filing Stamps
Page / Filing Fee
EA-52 17 (County)
EA-$217 (State)
R.P.T.S.A.
Comm. of Ed,
Affidavit
Certified Copy
NYS Surcharge
Other
part ~[Dist. I0
Real Property
Tax Service
Agency
Verification
20. 00
SubTotal
5. 00
15. O0
Sub Total
1000 ~'~ '
o3zoo o5o(J~o~o~ool '
Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO:
Kimberly Quarry
Peconic Land Trust, Incorporated
P.O. Box 1776, 296 Hampton Road
Southampton, New York 11969
Mail to: Judith A. Pascale, Suffolk County Clerk
310 Center Drive, Riverhead, NY 11901
www.suffolkcou ntyny.govtclerk
5
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec./Assit.
or
Spec./Add.
TOT. MTG. TAX
Dual Town __ Dual County __
Held for Appointment __
Transfer Tax
Mansion Tax
The property covered by this mortgage is
or will be improved by a one or two
family dwelling only.
YES or NO
If NO, see appropriate tax clause on
page # __ of t his ~u_~_,.~~
Community Preservation Fund
Consideration Amount $ 0
CPF Tax Due $ 0
)mproved ~
TD
lB
71 Title Company Information
JCo. Name Bridge Abstract, LLC
Suffolk County Recording & Endorsement Page
lhis page forms part of the attached Conservation and Historic Preservation Easement
by: (SPECIFY TYPE OF INSTRUMENT)
OTsterponds Historical Society The premises herein is situated in
SUFFOLK COUNTY, NEW YORK.
made
TO In theTOWN of Southold
Peconic Land Trust, Incorporated In the VILLAGE
or HAMLEI of East Marion
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
(over)
CONSERVATION AND HISTORIC PRESERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT (hereinafter referred ~to as this
"Easement" or "Conservation Easement"), is made as of the'L~ day of ~e.~rl4; t~ ,2012
("Effective Date"), at Southampton, New York, by the OYSTERPONDS HISTORICA[, SOCIETY,
a not-for-profit New York Corporation, having a principal office at 1555 Village Lane, Orient,
New York 11957 (herein called "Grantor"), and 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 called "Grantee").
INTRODUCTION
WHEREAS, Grantor is the sole owner in fee simple of approximately 4.2 acres of certain
real property located in the Town of Southold, Suffolk County, New York, more fully described
in SCHEDULE A and shown on the Conservation Easement Map marked EXHIBIT A, both
attached hereto and made a part hereof (hereinafter referred to as the "Property"); and
WHEREAS, the Property contains an historically significant single-family residence
(hereinafter, "Historic House") and an historically significant outbuilding of a similar style
(collectively, with the Historic House, the "Historic Structures") within the meaning of the New
York Environmental Conservation Law, Section 49-0301 et seq., and the grant of a Conservation
Easement on the Property by Grantor to Grantee referred to herein will preserve and maintain,
in accordance with the terms and provisions of this instrument, the style of the original Historic
House as a two and one-half (2½) story, shingle-style gambrel roof house with two large semi-
hexagonal dormers, which recalls the era when large summer homes for city people were being
built among the farms of eastern Long Island in the early 20~h century, and the appurtenant
outbuilding, and their respective architectural, historical, and cultural significance, all as more
particularly described in the Baseline Documentation (as defined below); and
WHEREAS, Grantor wishes to grant a Conservation Easement on the Property so that (i)
two non-contiguous areas of the Property (whether such areas are now or hereinafter
underwater) collectively comprising 2.585 acres, which represents approximately 62% of the
Property, as more fully described in SCHEDULE B attached hereto and made a part hereof
(hereinafter referred to collectively as the "Open Area"), shall remain forever in thei. r open,
undeveloped, and natural condition as a nature and wildlife preserve, and (ii) the remainder of
the Property, comprising 1.6 acres, which represents approximately 38% of the Property, as
more fully described in SCHEDULE C attached hereto and made a part hereof (hereinafter
referred to as the "Historic Preservation/Accessory Structure Area"), will be maintained as a
local historical site in accordance with the terms and provisions of this instrument and may be
further improved with no more than the existing single-family Historic House with
appurtenant structures and improvements as described in Section 3.04 herein; and
WHEREAS, the Property's northerly and western boundary line is contiguous to the
Ruth Oliva Preserve at Dam Pond, which is part of an assemblage of a conservation properties
totaling more than 100 acres, and which has been perpetually protected by the County of
Suffolk, the Town of Southold and Grantee; and
WHEREAS, New York State has recognized the importance of private efforts to preserve
land in a scenic, natural and open condition through conservation easements by enactment of
Environmental Conservation Law, Section 49-0301, et seq.; and
WHEREAS, the Property is free of any mortgages or liens and Grantor possesses the
right to grant this Easement; and
WHEREAS, Grantee is a publicly supported nonprofit charitable organization under
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations promulgated thereunder, 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, open-space and historic values of lands and the scenic and
historic values of historic buildings and structures located in New York State, and is therefore a
"qualified organization" within the meaning of Section 170(h)(3) of the Code; and, further,
Grantee possesses the resources and commitment to manage and enforce the restrictions and
other terms and conditions of this Easement; and
WHEREAS, the Property possesses historic, scenic, natural habitat, and open-space
values (hereinafter referred to as "Conservation Values") of great importance to Grantor and
Grantee; and
WHEREAS, Grantor and Grantee recognize the value and special and historic character
of the Property and of the region in which the Property is located, and Grantor and Grantee
have, in common, the purpose and objective of protecting and conserving the present state and
inherent, tangible and intangible Conservation Values of the Property as an aesthetic, natural,
scenic, open-space and historic resource; and
WHEREAS, Grantor has determined that the conveyance of this Easement will be
desirable and beneficial and has requested Grantee, for itself and its successors and assigns, to
accept this grant of a Conservation Easement in order to restrict the inappropriate development
of the Property while permitting those uses, activities, and actions--including but not limited to
construction, maintenance, and renovation of certain new and existing structures, as more fully
described herein--that are compatible with the protection of the Property's Conservation
Values.
AGREEMENT
NOW, THEREFORE, in consideration of the recited facts, mutual promises,
undertakings, and forbearances contained in this Easement and other valuable consideration,
Grantor hereby conveys in perpetuity to Grantee, and Grantee hereby accepts, this
Conservation Easement, the parties intending to be bound by its terms:
0.01 Purposes
The parties recognize the Conservation Values of the Property and have the common
purpose of preserving these Conservation Values in perpetuity. Subject to the terms and
conditions set forth herein, this Easement is conveyed by Grantor to Grantee for the purpose of
maintaining the Property as a local historical site; preserving the Open Area in its open,
undeveloped, and natural condition as a nature and wildlife preserve; and protecting the
Property's Conservation Values in perpetuity (collectively, the "Conservation Purpose") by
preventing the use or development of the Property for any purpose or in any manner that is
inconsistent to the intent and provisions hereof, including but not limited to the Conservation
Purpose. The parties agree that Grantor's retention of certain rights (including, but not limited
to, certain development rights reserved in Section 3.04 below) that are expressly permitted in
this Easement, including but not limited to expressly permitted residential, not-for-profit,
construction, and vegetation-management activities, is consistent with the Conservation
Purpose.
0.02 Grantee's Warranty
Grantee warrants and represents that it possesses the resources and commitment to
enforce the terms of this Easement on the Property, and that the Property satisfies the criteria
adopted by Grantee relating to the quality and characteristics of open land whose conservation
values should be protected and maintained, as determined by the Board of Directors at a duly
constituted meeting of that Board on November 21,2011.
3
0.03 Documentation
Grantor has made available to Grantee sufficient documentation to establish the
condition of the Property as of the Effective Date of this Easement. In order to aid in identifying
and documenting the condition of the Property's natural, wildlife, watershed, scenic,
agricultural, aesthetic and historic resources and otherwise to aid in identifying and
documenting the Property's Conservation 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") as of the date
hereof. This Baseline Documentation includes the Conservation Easement Map marked
EXHIBIT A attached hereto, an aerial photograph, photographs of the Property, a topographical
map, a description and site plan of land uses, features and structures (including a site plan of
the Historic Structures attached hereto as EXHIBIT B), a detailed description of the style and
other historical attributes of the Historic Structures, and an acknowledgment page signed by
Grantor and Grantee, which verifies that the Baseline Documentation accurately represents the
condition of the Property as of the Effective Date of this Easement. Copies of the Baseline
Documentation shall be retained 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
Grantor's uses of the Property or its physical condition as of the date hereof, the parties shall
not be precluded from utilizing any other relevant or material documents, surveys, reports,
photographs, or other evidence to assist in the resolution of the controversy.
ARTICLE ONE
THE EASEMENT
1.01 Type
This instrument conveys a Conservation Easement in gross under the provisions of
Article 49, Title 3, of the Environmental Conservation Law of the State of New York. This
Conservation Easement shall consist of the covenants, restrictions, rights, terms, and conditions
recited herein. Reference to this "Easement, .... Conservation Easement," or its "provisions"
shall include any and all of those covenants, restrictions, rights, terms and conditions.
1.02 Duration
This Easement shall be a burden upon and shall run with the Property in perpetuity.
1.03 Effect
This Easement shall run with the Property as an incorporeal interest in the Property, and
shall extend to and be binding upon Grantor, Grantor's agents, tenants, occupants, heirs,
personal representatives, successors and assigns. The word "Grantor" when used herein shall
include all of those persons or entities, subject, however, to the provisions regarding
termination of a party's rights and obligations in Section 7.13 below. Any rights, obligations,
and interests herein granted to Grantee shall also be deemed granted to each and every one of
Grantee's subsequent permitted agents, successors, and assigns, and the word "Grantee" when
used herein shall include all of those persons or entities, subject, however, to the provisions
regarding termination of a party's rights and obligations in Section 7.13 below.
ARTICLE TWO
Prohibited Uses and Activities
Grantor's use of the Property shall be compatible with the preservation of the Property's
Conservation Values, and any use that is inconsistent with the Conservation Purpose of this
Easement or is otherwise deleterious to the Conservation Values is prohibited; provided,
however, that, as set forth in Section 0.01, those uses, activities, and actions that are expressly
permitted in this Easement, including but not limited to those rights expressly reserved in
Articles Three hereof, are deemed consistent with the Conservation Purpose, and, without
limiting the generality of the foregoing, the following uses and practices, though not an
exhaustive recital of inconsistent uses and practices, are inconsistent with the Conservation
Purpose of this Easement and, unless otherwise expressly provided herein or otherwise
approved by Grantee pursuant to the terms of Article Four, are prohibited anywhere on the
Property.
2.01 Buildings and Structures
In General. Except as otherwise expressly provided in Article Three below,
the construction or placement of any residential, commercial, industrial or
other building, structure, or improvement of any kind or nature, including
but not limited to one or more mobile homes, structures such as windmills
for the generation of electricity, posts to aid cellular phone communications,
or any other structure that may destroy the natural beauty of the Property or
may destroy wildlife or its habitat, whether permanent or temporary, on,
over, or under the Property is prohibited.
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ii.
The following acts or uses are expressly forbidden or regulated on, over or
under the Historic Preservation/Accessory Structure Area on the Property,
except as otherwise provided in Section 3.04:
(a) the Historic House shall not be intentionally demolished, removed, or
razed except as provided in Section 5.05; and
(b) Grantor shall not increase or decrease the height of, make additions to,
change the exterior construction materials or use exterior colors that are
inconsistent with the style and other historic attributes of, or move,
improve, alter, reconstruct or change the facades (including fenestration)
and roofs of the Historic Structures without the prior written approval of
Grantee.
2.02 Excavation and Removal of Materials; Mining
Mineral exploitation, and extraction of any mineral (including but not limited to soil,
gravel, sand and hydrocarbons) by any method, surface or subsurface, is prohibited. The
removal or filling of topsoil, sand, or other materials shall not take place, nor shall the
topography of the Property be changed except in connection with the construction and
maintenance of the permitted structures and improvements on the Property. The removal of
topsoil, sand or other materials for purposes of erosion control and soil management may be
conducted only with the prior written approval of Grantee.
2.03 Subdivision
For purposes of this Conservation Easement, the Property is considered one parcel in
unified ownership. The subdivision or partitioning of the Property into separately conveyable
parcels is prohibited, without the prior written approval of Grantee, which approval may be
granted if that subdivision or partition is consistent with the terms of this Easement and does
not impair any Conservation Value.
2.04 Dumping
The dumping or accumulation of unsightly or offensive materials including, but not
limited to trash, garbage, sawdust, ashes or chemical waste on the Property is prohibited.
6
2.05 Signs
The display of signs, billboards, or advertisements is prohibited, except as permitted in
Section 3.02.
2.06 Soil and Water
Any use or activity that is not otherwise expressly or conditionally permitted under this
Easement which causes soil degradation or erosion or pollution of any surface or subsurface
waters is prohibited.
2.07 Wetlands
The draining, filling, dredging, alteration, or diking of any tidal wetlands, including any
enlargements thereof, or ~he cultivation or other disturbance of the soil within 100 feet of any
tidal wetlands is prohibited, except as provided in Section 3.04.F. For purposes of this
Easement, "tidal wetlands" means and shall include: (a) those areas which border on or lie
beneath tidal waters, such as, but not limited to, banks, bogs, salt marsh, swamps, meadows,
flats or other low lands subject to tidal action, including those areas now or formerly connected
to tidal waters; and (b) all banks, bogs, meadows, flats and tidal marsh subject to such tides, and
upon which grow or may grow some or any of the following plant species: salt hay (Spartina
patens and DistichIis spicata), black grass (Juncus Gerardi), saltworts (Salicornia ssp.), sea lavender
(Litnoniurn carolinianum), tall cordgrass (Spartina pectinata and Spartina cynosuroides), hightide
bush (lva frutescens), cattails (Typha angustifolia and Typha latifolia), groundsel (Baccharis
halmilifolia), marsh mallow (Hybiscus palustris) and the intertidal zone including low marsh
cordgrass ( Spartina alterniflora).
2.08 Ponds and Water Courses
The alteration of any water course located on the Property or the creation of any new
water impoundment or water course is prohibited without Grantee's prior written approval,
and except as provided in Section 3.04.F.
2.09 Landscaping Activities; Cutting of Trees
The cutting, harvesting, removal, pruning, trimming, mowing or addition of trees,
shrubs, grasses or other vegetation from or on the Open Area of the Property is prohibited,
except as permitted in Section 3.03 hereof. Maintenance of the Open Area shall occur only in
accordance with the permitted uses in Section 3.03 and only for the purpose of enhancing and
maintaining the natural habitat and open-space Conservation Values of the Property.
2.10 Commercial and Industrial Uses
Except as otherwise permitted in Section 3.01 hereof, commercial and industrial uses of
the Property, including commercial recreational uses, are prohibited.
2.11 Utilities
The creation or placement of additional or new overhead utility transmission lines,
utility poles, wires, pipes, wells or drainage and septic systems on the Property or replacement
of existing overhead utility lines, pipes, wells or drainage and septic systems on the Property is
prohibited without the prior written consent of Grantee; provided, that the maintenance, repair,
and in-kind replacement (of the same size, bulk, use, and general design and in the same
location) of the existing overhead utility lines, pipes, wells or drainage and septic systems on
the Property are allowed without the prior written consent of Grantee. Overhead utility
transmission lines on the Property shall, to the extent possible, be installed within 30 feet of the
centerline of roads or driveways, and may be used solely to service the structures permitted on
the Property by this Easement.
2.12 Drainage
The use of any portion of the Property for a leaching or sewage disposal field is
prohibited, except to service the structures permitted under this Easement. The use of the
Property for a drainage basin or sump is prohibited, except to control flooding or soil erosion on
the Property.
2.13 Development Rights
The use of the Property for purposes of calculating lot yield or development density on
any other property is prohibited. Grantor hereby grants to Grantee all development rights
existing on the Property as of the Effective Date of this Easement (and any future development
rights that may be created through a rezoning of the Property or otherwise), except those which
have been expressly retained by Grantor under this Easement, including but not limited to
those development rights reserved in Section 3.04 below. By Grantee's acceptance of this
Easement, the parties agree that such excess development rights granted by Grantor to Grantee
are terminated and extinguished and may not be used by Grantor or Grantee nor transferred to
any other parcel, adjacent or otherwise.
ARTICLE THREE
PERMITTED USES AND ACTIVITIES
Grantor reserves the right to use the Property in any manner that is not inconsistent
with the Conservation Purpose and other terms and conditions of this Easement and in accord
with existing zoning laws and restrictions. Without limiting the generality of the foregoing, the
following uses and practices, though not an exhaustive recital of consistent uses and practices,
are expressly permitted under this Easement if undertaken pursuant to the terms hereof.
3.00 Residential Use
Grantor may use and maintain the Property for single-family residential purposes and
may lease, sell or hypothecate the Property in its entirety to a single tenant or single family for
such purposes.
3.01 Not-for-Profit and Educational Use
Subject to applicable statutes, ordinances and regulations, including but not limited to
Southold Town zoning codes then in effect and any applicable regulatory approvals, the use of
the Property by not-for-profit organizations and for educational purposes is permitted,
provided that any activity by any such not-for-profit organization or for any such educational
purpose is otherwise consistent with the terms of this Easement.
The display of one or more signs, billboards, or advertisements is prohibited, except for
any sign whose placement, size, number, and design does not significantly diminish the
Conservation Values of the Property and only for any of the following purposes: (a) to state the
name and address of the Property and the names and addresses of the occupants; (b) to
temporarily advertise the Property or any portion thereof for sale or rent; (c) to post the
Property to control unauthorized entry or use; (d) to announce this Conservation Easement; or
(e) to announce any not-for-profit activities or events on the Property. Any permitted sign shall
not be more than six (6) square feet in size, may be reflective, but shall not be illuminated, and
shall be subject to any applicable governmental regulatory requirement.
3.03 Landscaping Activities; Cutting of Timber
The cutting, harvesting, removal, pruning, trimming, mowing or addition of trees,
shrubs, grasses or other vegetation from or on the Open Area of the Property is prohibited,
except (a) in accordance with a Grantee-approved natural resources management plan
("Management Plan"), which shall be prepared by Grantor to ensure the maintenance and
enhancement of the scenic, natural habitat and open-space Conservation Values of the Property
prior to implementing any such management activities, and (b) solely for the following
purposes: (i) as reasonably necessary for the conduct of those uses and activities expressly
permitted under this Easement; (ii) to clear and restore trees or vegetation that have been
materially damaged, diseased or destroyed; (iii) to prune and selectively thin trees to create
limited vistas in accordance with (I) good forest management practices, including but not
limited to those practices prescribed by the Management Plan, and (11) the Conservation
Purpose of this Easement; (iv) for firewood and fencing for use on the Property; (v) to remove
hazards to persons or to the Property; and (vi) to remove invasive non-native plant species.
Grantor may conduct selective pruning and grounds maintenance within the Historic
Preservation/Accessory Structure Area without the need for a Management Plan and without
Grantee's approval.
3.04 Structures and Improvements
Grantor retains the right to construct, place, maintain, repair, remodel, replace, and
enlarge the following improvements in accordance with the provisions of this Section 3.04.
Grantor shall obtain Grantee's prior written approval pursuant to the terms of Article Four
prior to undertaking any such construction, placement, remodeling, replacement, and
enlargement (other than routine maintenance and repair that does not alter or otherwise affect
the historic character and attributes of the Historic Structures).
A. Historic Preservation Covenants--Covenant to Maintain
Grantor agrees at all times to maintain the Historic Structures in the same or
better structural condition and state of repair as that existing on the Effective Date of this
Easement, as further described in Baseline Documentation. This obligation to maintain
shall require replacement, rebuilding, repair, and/or reconstruction of the Historic
Structures' facade, roof, foundation, and overall structural integrity whenever necessary
in accordance with best management practices for historic buildings. Notwithstanding
anything contained herein to the contrary, the Historic House shall not be demolished,
removed, or razed except as provided in Section 5.05.
B. Allowable Improvements/Reserved Development Rights - Historic
Preservation/Accessory Structure Area
Within the Historic Preservation/Accessory Structure Area as depicted in
SCHEDULE C, Grantor shall have the right to construct, renovate, maintain, repair, and
10
use the existing single-family Historic House and construct, renovate, maintain, repair
and use existing and new appurtenant structures and improvements reasonably
necessary to serve such residential dwelling, including, without limitation, driveway,
garage, storage shed, septic system and leaching field, swimming pool, pool house,
tennis court, and other family-scale athletic facility, subject to the limitations described
in the paragraphs immediately below. Grantor shall have the right to remove trees,
shrubs, or other vegetation from the Historic Preservation/Accessory Structure Area as
reasonably necessary to construct, maintain, repair, renovate, or enlarge the Historic
Structures and permitted appurtenant structures and improvements.
Notwithstanding the foregoing, in no event shall the total Built Area (as defined
below) of the Historic Structures and all existing and subsequently constructed
structures on the Property exceed 6,000 square feet, and, further, in no event shall the
Built Area of the Historic House itself exceed 4,500 square feet. In addition, no
individual structure may exceed 40 feet in height measured at its tallest point. For
pdrposes of this paragraph, "Built Area" shall mean the total square footage of the
interior floor area (i.e., surrounded by four walls and covered by a roof, but excluding a
basement, whether finished or unfinished) of any structure on the Property, except
accessory improvements such as pools, tennis courts, stone patios, and walkways, etc.
The Historic House is described as a two and one-half (21/2) story, shingle-style
gambrel roof house with two large semi-hexagonal dormers, which recalls the era when
large summer homes for city people were being built among the farms of eastern Long
Island in the early 20th century, as depicted and more particularly described in the
Baseline Documentation. Grantor shall adhere to the following guidelines in
constructing, maintaining, repairing, remodeling, enlarging, or, if destroyed, replacing
the Historic Structures to ensure that their historic character and distinctive attributes
are preserved:
1. The historic character and style of the Historic Structures shall be retained
and preserved.
2. The removal of distinctive materials or alteration of features, spaces, and
spatial relationships that characterize the Historic Structures shall be
avoided.
3. Distinctive materials, features, finishes, and construction techniques or
examples of craftsmanship that characterize the style of the Historic
Structures shall be preserved.
4. Any new exterior material shall substantially match the style of the old in
composition, design, color, and texture.
5. Any expansion of the Historic Structures from their respective configuration
on the Effective Date shall be similar in scale, texture, and materials and shall
11
minimize alteration to the distinctive materials, features, spaces, and spatial
relationships.
New additions, exterior alterations, or related new construction shall be
compatible with historic materials, features, scale, proportion, massing and
spatial relationships that characterize the style of the Historic Structures.
If either of the Historic Structures is materially damaged or destroyed,
reconstruction (if applicable) shall include measures to preserve any
remaining historic features and spatial relationships, provided, that
reconstruction of the Historic House shall be subject to the additional terms
of Section 5.05 below.
Allowable Improvements - Open Area
Grantor shall have the right to erect and maintain the following non-residential
improvements within the Open Area:
ii.
iii.
iv.
With the prior written approval of Grantee, fences, provided they are placed
and constructed so that they do not block or detract from the scenic view of the
Property and do not substantially interfere with wildlife movement on the
Property;
With prior notice to Grantee, a nature trail or footpath for access to the Open
Area for the sole use of Grantor, subject to any required regulatory approvals;
With prior notice to Grantee, small improvements, such as benches or sitting
areas related to the nature trail or footpath; and
Temporary (i.e., in place for less than four weeks) structures or tents related to
the permitted residential, not-for-profit and educational use of the Property,
provided such use does not substantially impair the Conservation Values.
Right to Modify the Property's Described Areas
Grantor retains the right to modify the boundaries of the Open Area and Historic
Preservation/Accessory Structure Area to accommodate the permitted structures and
uses described above in Section 3.04.B and C and as set forth in the Baseline
Documentation upon prior written notice to (but not approval of) Grantee; provided,
however, that, in modifying such boundaries, all of the following conditions must be
met: (i) the Historic Preservation/Accessory Structure Area shall remain one contiguous
area surrounding the Historic Structures; (ii) no portion of the Historic
Preservation/Accessory Structure Area shall be located closer than twenty (20) feet from
the northern boundary of the Property; (iii) any such adjustment shall not result in a
reduction of the size of the Open Area or an increase in the size of the Historic
12
Preservation/Accessory Structure Area; and (iv) any such adjustment shall not
materially impair or interfere with the Conservation Values. If Grantee's cooperation is
requested by Grantor, Grantee agrees to cooperate with Grantor in such boundary-line
adjustment, provided that such adjustment complies with the terms of this section.
Upon Grantor's decision to modify said areas, Grantor shall, at its sole cost and
expense, prepare new surveys and metes-and-bounds descriptions of said areas and
provide copies thereof to Grantee. This Conservation Easement shall then be amended
to identify such new boundaries, including but not limited to by replacing SCHEDULE
B (Metes and Bounds Description of the Open Area), SCHEDULE C (Metes and Bounds
Description of the Historic Preservation/Accessory Structure Area), EXHIBIT A
(Conservation Easement Map of the Property), and EXHIBIT B (Site Plan of the Historic
Preservation/Accessory Structure Area), and such amendment shall be recorded in the
land records of the office of the Clerk of the County of Suffolk, State of New York. In
addition, the Baseline Documentation shall be updated accordingly.
E. In-Kind Replacement of Structures or Improvements that Are Not the Historic House.
In the event of damage to any existing structure or improvement (other than the
Historic House) resulting from casualty to an extent which renders repair of such
structure or improvement impossible or impractical, erection of a replacement of
comparable size, bulk, use, and general design to the damaged improvement or
structure shall be permitted, provided that it is a replacement in-kind and subject to the
review and written approval of Grantee. For casualty damage to the Historic House, see
Section 5.05 hereof.
F. Environmental Sensitivity During Construction
The location and use of any structure or improvement permitted to be
constructed hereunder shall be consistent with the Conservation Purpose. Construction
of any such improvement shall minimize disturbances to the environment. Grantor
shall employ erosion and sediment control measures to insure that storm-water runoff
will not carry eroded and other deleterious materials into Dam Pond, including but not
limited to minimal removal of vegetation, minimal movement of earth and minimal
clearance of access routes for construction vehicles.
G. Climate Change
In granting this Easement, Grantor and Grantee acknowledge that the Property
may be impacted by climate changes, specifically, a change in sea level. Grantor and
13
Grantee agree to allow for mitigation of such impacts, if necessary, to protect the
Historic Structures. Such mitigatio~ efforts are subject to the prior approval of Grantee
as well as all required regulatory authorities and may include diking and filling of areas
to raise the elevation of structures and improvements and relocation of structures and
improvements and/or the Historic Preservation/Accessory Structure Area to other areas
of the Property, if necessary. However, in no event shall any shore hardening structures
be permitted in any such mitigation plans and efforts. Grantor and Grantee agree that
the occurrence of any climate change-caused impacts to the Property will not impair the
validity of this Easement and shall not alone be considered grounds for the release,
termination, or other extinguishment of the Easement whether in whole or in part.
ARTICLE FOUR
NOTICE AND APPROVAL
4.01 Notice and Approval
A. Requests for Approval of Certain Uses or Activities.
In cases where Grantor is expressly required herein to notify Grantee before
undertaking certain reserved rights, Grantor shall give Grantee written notice of the
proposed activity at least thirty (30) days prior to the date Grantor intends to begin the
activity. The purpose of notification is to give Grantee an opportunity to monitor the
activity in question to ensure that it is designed and carried out in a manner that is
consistent with the Conservation Purpose.
With respect to any use or activity under Article Two or Three requiring the
prior approval of Grantee, or in the event Grantor proposes to undertake a use or
activity not explicitly prohibited hereby but which might be inconsistent with the
Conservation Purpose or might have a deleterious effect on the Conservation Values,
Grantor shall request Grantee's approval in writing and shall include therewith
information identifying the proposed activity and the reasons for the proposed activity
with reasonable specificity. In addition, in the event Grantor desires to undertake any
remodeling, expansion or any other material change to the Historic Structures, Grantor
shall also submit a copy of the notice required by this Section to OHS (as defined below
in Section 6.04); provided, that this OHS notice requirement shall not apply to the
originally named Grantor. The purpose of providing OHS notice prior to undertaking
material changes to the Historic Structures is to afford OHS an adequate opportunity to
monitor the activities in question and to ensure that they are designed and carried ot~t in
14
a manner that is not inconsistent with preservation of the historic style and other
attributes of the Historic Structures.
Grantor's notice or request for approval, as the case may be, shall describe the
nature, scope, location, timetable, and any other material aspect of the proposed activity
(including, if appropriate, sketch plans or scaled drawings of the site(s) of the proposed
activity) in sufficient detail to permit Grantee to evaluate such activity. This includes,
but is not limited to, the construction of any permanent or temporary structure as
provided in Section 3.04 herein and the repair and reconstruction of the Historic House
following casualty damage in accordance with Section 5.05 hereof. The notice or request
shall also include information evidencing the conformity of such activity with the
requirements of the applicable Section under which notice is given or approval is
requested hereunder.
Grantee's consideration of the proposed activity shall take into account the
following criteria:
(i) the extent to which use of the site for the proposed activity would impair
the scenic and historic qualities of the Property; and
(ii) the extent to which the proposed activity or use of the site for the
proposed activity would otherwise impair the Conservation Values of the
Property; and
(iii) the extent to which the proposed activity or use of the site for the
proposed activity is consistent with the Conservation Purpose.
In considering Grantor's request, Grantee may, in its sole and absolute
discretion, consult with one or more qualified consultants. Grantor and Grantee shall
cooperate and shall act in good faith to arrive at agreement on suitable sites and
activities in connection with any determinations that are necessary to be made by them
(either separately or jointly) under this Section. Notwithstanding the foregoing,
Grantee's approval of a proposed site or activity may be withheld, in its sole and
absolute discretion, if the use of the site for the proposed activity would interfere or
impair the Conservation Values of the Property or be otherwise inconsistent with the
Conservation Purpose of this Easement. Grantee agrees to evaluate Grantor's requests
under this Easement based on its good-faith exercise of professional judgment.
15
B. Grantee's Response
In accordance with Paragraph A of this Section, Grantee shall, in writing,
approve, conditionally approve, or withhold approval of the proposed use or activity
within forty-five (45) days of receipt of Grantor's request therefor; provided, however,
that if Grantee reasonably determines that it requires more than forty-five (45) days (due
to its decision to engage a consultant(s) or for any other reason) or requires further
documentation to undertake a sufficient and thorough review of the documentation
provided, Grantee shall so notify Grantor within the original 4$oday period of the
additional time and/or documentation required to respond to Grantor's request
hereunder, but in no event shall Grantee take more than ninety (90) days from the date it
receives Grantor's request to approve, conditionally approve, or withhold approval of
the proposed use or activity unless Grantor expressly consents, in its reasonable
discretion (in light of a consultant's time frame, etc.), to a review period longer than 90
days.
If the proposed activity is remodeling, enlargement or other material change to
either of the Historic Structures, following the transfer of the Property from the
originally named Grantor to an unrelated transferee, Grantee may consult with OHS and
seek OHS's input as to any additional documentation that may be necessary or desirable
for consideration of the proposal and/or as to whether any condition or modification of
the proposal may be necessary to preserve the historic style and other attributes of the
Historic Structures. At Grantee's sole and absolute discretion, Grantee may permit
commencement of the activity less than forty-five (45) days after receiving Grantor's
written request for approval.
In the case of withholding of approval, Grantee shall notify Grantor in writing
with reasonable specificity of the reasons for withholding of approval, and the
conditions, if any, on which approval might otherwise be given. Failure of Grantee to
deliver a written response to Grantor within forty-five (45) days (as such time may be
extended, as discussed above) shall be deemed to constitute written approval by
Grantee of any request submitted for approval that is not contrary to the express
restrictions hereof and whose implementation would not significantly impair the
Property's Conservation Values. For purposes of this Conservation Easement, unless
Grantee's approval is expressly indicated herein to be in its sole and absolute discretion,
Grantee's approval may not be unreasonably withheld, conditioned, or delayed.
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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 ("Taxes"), if any, which may become a lien on the Property, including any
taxes or levies imposed to make those payments. If Grantor fails to make any such payment
before it goes into formal default, Grantee is authorized to make such payment(s) (but shall
have no obligation to do so), upon ten (10) days prior written notice to Grantor, according to
any bill, statement or estimate procured from the appropriate public office without inquiry into
the accuracy thereof; provided, however, that Grantor may contest in good faith any such
Taxes, and such Taxes may remain delinquent for such reasonable period as Grantor may need
to contest such Taxes, during which time Grantee shall not make any such payment(s). Any
payment made by Grantee pursuant to the terms of this Section 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 three percentage points over the prime rate of interest from time to
time charged by Citibank, N.A., or its corporate successor, in no event to exceed a legal interest
rate.
5.02 Indemnification by Grantor
Grantor acknowledges that Grantee has neither possessory rights in the Property nor
any responsibility nor right to control, maintain, or keep up the Property. Grantor has and shall
retain all responsibilities and shall bear all costs and liabilities of any nature related to the
ownership, operation, upkeep, improvement, and maintenance of the Property. Grantor hereby
releases and agrees to hold harmless, indemnify and defend Grantee and its members, directors,
officers, employees, legal representatives, agents, and contractors and the heirs, personal
representatives, successors, and assigns of each of them (collectively, "Indemnified Parties")
from and against any and all liabilities, penalties, fines, charges, costs, losses, damages,
expenses, causes of action, claims, demands, orders, judgments, or administrative actions,
including, without limitation, reasonable attorneys' fees, arising upon or after the Effective Date
from or in any way connected with: (1) injury to or the death of any person, or physical damage
to any property, resulting from any act, omission, condition, or other matter related to or
occt~rring on or about the Property, regardless of cause, unless due solely to the gross negligent
act or willful misconduct of Grantee; or (2) violation or alleged violation of, or other failure to
comply with, any state, federal, or local law, regulation, or requirement by any person, other
than Grantee, in any way affecting, involving, or relating to the Property.
t7
5.03 Indemnification by Grantee
Grantee shall indemnify and hold Grantor harmless from and against any and all
liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims,
demands, orders, judgments, or administrative actions, including, without limitation,
reasonable attorneys' fees, incurred or suffered by Grantor or any of its officers, employees,
agents, or independent contractors resulting from any act, omission, condition or other matter
related to, or occurring on or about, the Property caused solely by the gross negligence or
willful misconduct of Grantee, or its officers, employees, agents or independent contractors.
5.04 Insurance
Grantor shall keep the Property insured by an insurance company rated A1 or better for
the maximum amount obtainable against loss from the perils commonly insured under
standard fire and extended coverage policies and comprehensive general liability insurance
against claims for personal injury, death, and property damage. Property damage insurance
shall include change-in-condition and building-ordinance coverage, in form and amount
sufficient to repair or replace the damaged Property, including but not limited to the Historic
Structures. Such insurance shall include Grantee as an additional insured.
Grantor shall deliver to Grantee a certificate of insurance annually or when coverage is
renewed by Grantor. If Grantor fails to submit proof of insurance coverage annually or at the
time of renewal, Grantor must deliver proof of coverage within ten (10) business days of
Grantee's written request for documentation of coverage. Grantee shall have the right to obtain
insurance on the Property should Grantor fail to obtain same, in which case the cost of such
insurance shall be a lien on the Property until repaid by Grantor, unless Grantee is notified by
Grantor that Grantor is in the process of obtaining insurance and such insurance is procured by
Grantor and proof of insurance is provided to Grantee within five (5) business days of Grantee's
request therefor.
5.05 Casualty Damage or Destruction of the Historic House
In the event that the Historic House or any part thereof is materially damaged or
destroyed by casualty, Grantor shall promptly notify all insurers and shall promptly notify
Grantee in writing of the damage or destruction, with such notification to include a description
of what, 'if any, emergency work has already been completed. For purposes of this Easement,
the term "materially" is defined as 75% or more, and the term "casualty" is defined as such
sudden damage or loss as would qualify for a loss deduction under Section 165(c)(3) of the
Internal Revenue Code (construed without regard to the legal status, trade, or business of
Grantor or any applicable dollar limitation). No repairs or reconstruction of any type, other
18
than emergency work necessary to prevent further damage to the Property or the Historic
House and/or to protect the safety of persons or property, shall be undertaken by Grantor
without Grantee's prior written approval of the work pursuant to the terms of Article Four.
Within eight (8) weeks of the date of damage or destruction, Grantor shall submit to Grantee a
written report prepared by a licensed and experienced architect and/or a qualified engineer, if
required, which shall include all of the following:
i. An assessment of the nature and extent of the damage.
ii. A determination of the feasibility of the restoration of the preserved
elements and/or reconstruction of damaged or destroyed portions of
the Historic House.
iii. A report of such restoration or reconstruction work necessary to
return the Historic House to the condition existing immediately
before the casualty.
If after reviewing the report provided above and assessing the availability of insurance
proceeds after satisfaction of any mortgagee/lender claims, Grantor and Grantee agree that the
purpose of this Easement will be served by such restoration/reconstruction, Grantor and
Grantee shall establish a schedule under which Grantor shall complete, or cause to be
completed, the restoration/reconstruction of the Historic House in accordance with plans and
specifications consented to by the parties up to at least the total of the casualty insurance
proceeds available to Grantor.
If after reviewing the report and assessing the availability of insurance proceeds after
satisfaction of any mortgagee/lenders claims, Grantor and Grantee agree that
restoration/reconstruction of the Historic House is impractical or impossible, or agree that the
purpose of this Easement would not be served by such restoration/reconstruction, Grantor may,
but only with the prior written approval of Grantee, alter, demolish, remove, raze the damaged
or destroyed Historic House. If Grantor opts to replace the destroyed Historic House, such
replacement shall, in addition to being of comparable size, bulk, and use to the destroyed
house, incorporate as many of the historic elements and style of the original Historic House as is
reasonably feasible, and such replacement shall be located in the same location and shall be
subject to the review and written approval of Grantee. If the Historic House is materially
damaged and the insurance proceeds are not sufficient to rebuild it in accordance with the
provisions of this Section, then Grantor has the right not to rebuild the structure. Grantor may
post one or more signs pursuant to Section 3.02 above to control unauthorized entry or access to
the damaged or destroyed Historic House.
19
5.06 Environmental Responsibilities
Grantor Responsible for the Property. Grantor is solely responsible, and Grantee has no
responsibility, for the operation of the Property or the monitoring of hazardous or other
conditions thereon. Nothing in this Easement shall be construed as giving any right or ability to
Grantee to exercise physical or managerial control of the day-to-day operations of the Property
or of Grantor's activities on the Property. Neither Grantee nor its agents shall be liable to
Grantor or other person or entity in connection with consents given or withheld pursuant to this
Easement or in connection with any entry upon the Property pursuant to this Easement.
Grantor's Environmental Warranty and Indemnity. Grantor represents and warrants, to
the best of the actual knowledge of Grantor's signatory below as of the Effective Date hereof,
that there has been no actual or threatened release of any Hazardous Materials, as defined
below, on, over, or under the Property. Grantor hereby promises to hold harmless, defend and
indemnify the Indemnified Parties from and against all liabilities, penalties, fines, charges, costs,
losses, damages, expenses, causes of action, claims, demands, orders, judgments, or
administrative actions, including, without limitation, reasonable attorneys' fees, arising from or
connected with any release of Hazardous Materials or violation of federal, state or local
Environmental Laws (as defined below).
This Easement is not intended to and shall not create environmental liability in Grantee.
Notwithstanding any other provision herein to the contrary, the parties do not intend this
Easement be construed such that it imposes on, creates in or gives Grantee:
(1) the obligations or liability of an "owner" or "operator" as those words are
defined and used in Environmental Laws, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.$.C.
Section 9601 et seq., and hereinafter 'CERCLA');
(2)
9607(a)(3) or (4);
the obligations or liability of a person described in 42 U.S.C. Section
(3) the obligations of a responsible person under any applicable
Environmental Laws;
(4) the right to investigate and remediate any Hazardous Materials,
associated with the Property; or
(5) any control over Grantor's ability to investigate, remove, remediate, or
otherwise clean up any Hazardous Materials associated with the Property.
2O
The term "Hazardous Materials" includes, without limitation, (i) material that is
flammable, explosive, or radioactive; (ii) petroleum products; and (iii) hazardous materials,
hazardous wastes, hazardous or toxic sr~bstances, or related materials defined in CERCLA, the
Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.), or any other
Environmental Law, and in the regulations adopted and publications promulgated pursuant to
them, or any other applicable federal, state, or local laws, ordinances, rules, or regulations now
in effect or enacted after the Effective Date of this Easement.
The term "Environmental Laws" includes, without limitation, any federal, state
or local or administrative agency statute, regulation, rule, ordinance, order or requirement now
in effect or enacted after the Effective Date of this Easement relating to pollution, protection of
human health, the environment, or Hazardous Materials.
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee and its agents shall have the right to enter upon the Property for the purpose of
inspection and monitoring and to determine whether this Easement and its Conservation
Purpose and other provisions are being upheld. Except in cases where Grantee determines, in
its reasonable discretion, that immediate entry is required to investigate a use or condition on
the Property in order to prevent, terminate, or mitigate a violation or potential violation of the
terms of this Easement (in which case Grantee shall make a reasonable attempt to contact
Grantor by any of the following means for which Grantee has contact information for Grantor:
telephone, electronic mail, or other voice or electronic communication, using the most-current
contact information available to Grantee for Grantor), such entry shall be permitted only at
reasonable times, upon no less than five (5) days' prior written notice to Grantor, and in a
manner that will not interfere with Grantor's quiet use and enjoyment of the Property. Grantee
shall not have the right to enter upon the Property for any other purpose, except in cases of
emergency to protect the Conservation Values of the Property, nor to permit access upon the
Property by the public.
6.02 Protection and Restoration
Subject to the provisions of Section 5.05 above, Grantee shall have the right to preserve
and to protect in perpetuity the Conservation Values of the Property, including, but not limited
21
to, by means of review and approval of activities as set forth in Article Four above. Grantee
shall have the right to prevent any activity on or use of the Property that is inconsistent with the
Conservation Purpose or other provisions of this Easement and to require Grantor to restore the
Property to the condition required by this Easement and to enforce these rights 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 Grantor's control, including,
without limitation, fire, flood, storm, acts of nature, unauthorized acts of unrelated third parties
and earth movement, or from any prudent action taken by 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 may be inadequate. Therefore, in addition to, and not in limitation of, any other
rights of Grantee hereunder at law or in equity, in the event any breach, default or violation of
any term, provision, covenant or obligation on Grantor's part to be observed or performed
pursuant to this Easement is not cured, or a bonafide attempt has not been begun by Grantor
within sixty days (60) of Grantor's receipt of Grantee's notice of such breach, default or
violation (which notice requirement is expressly waived by Grantor with respect to any such
breach, default or violation which, in Grantee's reasonable judgment, requires immediate action
to preserve and protect any of the Conservation Values or otherwise to further the Conservation
Purposes of this Easement), Grantee shall have the right at Grantor's sole cost and expense and
at Grantee's election,
(a)
To institute a suit to enjoin or cure such breach, default or violation by temporary
and/or permanent injunction and/or to require the restoration of that portion of
the Property affected by such breach, default or violation to the condition that
existed prior thereto;
(b)
To enter upon the Property and exercise reasonable efforts to terminate or cure
such breach, default or violation and/or to cause the restoration of that portion of
the Property affected by such breach, default or violation to the condition that
existed prior thereto: and
(c)
To seek or enforce such other legal and/or equitable relief or remedies as Grantee
deems necessary or desirable to ensure compliance with the terms, conditions,
covenants, obligations and purposes of this Easement; provided, however, that
any failure, delay or election to so act by Grantee shall not be deemed to be a
waiver or a forfeiture of any right or available remedy on Grantee's part with
22
respect to such breach, default, or violation or with respect to any other breach,
defat~lt or violation of any term, condition, covenant or obligation under this
Easement.
Grantee's remedies described in the section shall be cumulative and shall be in addition
to all remedies now or hereafter existing at law or in equity. Grantor shall pay, either directly
or by reimbursement to Grantee, alt reasonable attorneys' fe~s, court costs and other expenses
incurred by Grantee in connection with any proceedings under this Section; provided, however,
that if a court of competent jurisdiction, after all rights of appeal have expired, determines that
Grantor has not violated this Conservation Easement or determines that Grantor is otherwise
the prevailing party in any litigation, each party shall bear its own costs and expenses,
including attorneys' fees, individually; and provided, further, that, notwithstanding the
foregoing, if Grantee initiates litigation against Grantor to enforce this Conservation Easement,
and if a court of competent jurisdiction, after all rights of appeal have expired, determines that
Grantor has not violated this Conservation Easement or determines that Grantor is otherwise
the prevailing party and also determines that (i) the litigation was initiated with the primary
purpose to harass, embarrass, or injure Grantor; (ii) Grantee did not have a reasonable basis to
believe that the facts underlying Grantee's legal position were in fact true; or (iii) Grantee's legal
position was devoid of arguable legal merit, then the court may require Grantee to reimburse
Grantor's reasonable costs and reasonable attorney's fees in defending the action.
6.04 Third-Party Enforcement
Following the transfer of the Property from the originally named Grantor to an
unrelated transferee, the Oysterponds Historical Society (hereinafter, "OHS") shall obtain (and
shall have unless and until the Property (or any portion thereof) is ever conveyed back to OHS
or a related party) third-party enforcement rights as provided in Sections 49-0303 (4) and 49-
0305 (5) of the Environmental Conservation Law ("Third-Party Enforcement Rights"). The
provisions and procedures of this Article Six shall apply to such Third-Party Enforcement
Rights. If OHS determines that enforcement is necessary or that it believes that a violation of
this Easement has occurred or is threatened, it shall notify Grantee, in writing, of its
determination and the nature of the violation. Within ten (10) days of the receipt of such notice,
Grantee shall inform OHS, in writing, whether or not it will proceed to enforce the Easement.
If Grantee does not notify OHS of its election to proceed with enforcement within such
time, or if Grantee declines, in writing, to pursue such enforcement action, then OHS has the
option to initiate enforcement proceedings in accordance with the terms of Section 6.03 above.
If OHS elects to pursue such enforcement action because Grantee has expressly declined to do
so, Grantee will be deemed to have assigned its enforcement rights to OHS if such assignment is
legally necessary for OHS to initiate such action; provided, however, that an assignment to
23
OHS, if any, shall not foreclose the right of Grantee to join such enforcement action at a later
time or otherwise enforce this Easement, either singly or jointly with OHS, and if any such
assignment may have the result of foreclosing Grantee's right to join such enforcement action or
otherwise enforce this Easement, in the reasonable opinion of Grantee's counsel, Grantee will
not be deemed to have made such assignment. Grantee may, at its option, be named as a party-
plaintiff in any enforcement action or proceeding initiated by OHS. If Grantee is not so named,
Grantee may nevertheless move at any time to join or intervene in such action or proceeding,
and OHS agrees to support such a motion.
In the event of any enforcement action or proceeding brought by either Grantee or OHS,
both parties shall cooperate with each other and promptly provide the other party with copies
of all documents submitted to the court or Grantor related to such action or proceeding. Either
Grantee or OHS, or both, may appeal any adverse decision and shall cooperate to defend any
appeal which may be brought by Grantor.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this Article Six shall not have the effect
of waiving or limiting any other remedy or relief, and the failure to exercise or delay in
exercising any remedy shall not have the effect of waiving or limiting the use of any other
remedy or relief or the use of such other remedy or relief at any other time.
6.06 Assignabili .ty
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, and which is organized or operated primarily or substantially for one of the conservation
purposes specified in Section 170(h)(4)(A) of the Code. Grantee shall consult with Grantor (and,
following the transfer of the Property from the originally named Grantor to an unrelated
transferee, OHS) regarding any proposed Assignee and shall attempt in good faith to select an
Assignee that holds other conservation easements of a similar nature as this Easement and has
continuously met the requirements of a "qualified organization" as described above for a period
of five (5) years or more. Any assignment by Grantee or a successor Grantee must require, and
the Assignee must agree, that the Assignee and Assignee's successors will carry out and enforce
the Conservation Purpose and other provisions of this Easement. The Assignee and its
24
successors and assigns shall have the same right of assignment, subject to compliance with the
provisions of this Section. Grantee shall promptly notify Grantor of any such assignment.
6.07 Succession
If at any time Grantee 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 Section 170(h)(3)
of the Code, then this Easement shall be vested in such qualified corporation, body or agency as
defined and upon the conditions and limitations contained in Section 6.06 (Assignability) as
Grantee or Assignee 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. The then-current owner(s) of the Property will be notified of any such proceedings.
6.08 Extinguishment
This Easement gives rise to a property right and interest immediately vested in Grantee.
For purposes of this Section 6.08, the fair market value of such right and interest shall have a
fair market value determined by multiplying (i) the fair market value of the Property
unencumbered by this Easement by (ii) the ratio of the value of this Easement as of the date of
any extinguishment or partial extinguishment of this Easement to the value of the Property,
unencumbered by this Easement, as of the date of any such extinguishment or partial
extinguishment pursuant to the terms hereof, which ratio shall hereinafter be referred to as the
"Proportionate Share." The value of this Easement shall be determined at the time of any such
extinguishment or partial extinguishment by an independent appraisal performed in
accordance with Treas. Reg. Section 1.170A-13 and guidance of the Internal Revenue Service
and by a "qualified appraiser," as defined in Treasury Regulations section 1.170A-13(c)(5), who
is mutually agreeable to Grantor and Grantee, the cost of which appraisal shall be borne by
Grantor.
(For example: if the fair market value of the Property is $500,000 as of the date of termination, and its
restricted value is $100,000 as of such date, the value of this Easement is $400,000. So the
Proportionate Share is $400,000 divided by $500,000, or 80%.)
This Easement may be extinguished in whole or in part only in a judicial proceeding by
a court of competent jurisdiction and in accordance with the common and statutory laws of the
State of New York and only in the event a material change in conditions that makes impossible
or impracticable the continued use of the Property for the Conservation Pt~rpose or makes
25
impossible or impracticable the protection of the Conservation Values protected by this
Easement. In the case of such an extinguishment or partial extinguishment of this Easement,
Grantor shall pay Grantee an amount equal to the Proportionate Share of the then fair market
value of the Property (minus any amount attributable to the value of improvements made by
Grantor after the effective date of this Conservation Easement) at the time of the
extinguishment. Such fair market value shall be established by an arm's length sale of the
Property (or such portion of which as to which this Easement is extinguished) consummated
within ninety (90) days of the extinguishment, subject to Grantee's approval of the sale price as
fairly representing fair market value; otherwise, fair market value shall be determined by an
independent appraisal performed in accordance with Treas. Reg. Section 1.170A-13 and
guidance of the Internal Revenue Service and by a "qualified appraiser," as defined in Treasury
Regulations section 1.170A-13(c)(5), who is mutually agreeable to Grantor and Grantee, the cost
of which appraisal shall be borne by Grantor.
If all or any part of the Property is taken under the power of eminent domain by public,
corporate, or other authority, or otherwise acquired by such authority through a purchase in
lieu of a taking, so as to abrogate the restrictions imposed by this Easement or otherwise
effectively to frustrate the Conservation Purpose hereof, Grantor and Grantee shall join in
appropriate proceedings at the time of such taking to recover the full value of 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 Conservation Purpose of this Easement.
In making this grant of Easement, Grantor has considered the possibility that uses
prohibited by the terms of this Easement may become more economically viable than the uses
specifically reserved by Grantor pursuant to this Easement. It is the intent of both Grantor and
Grantee that any such change in economic conditions shall not be deemed to be circumstances
justifying the termination or extinguishment of this Easement pursuant to this section.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Alienability
Grantor shall have the right to convey, mortgage or lease all of its remaining interest in
the Property but only subject to this Easement. Grantor shall promptly notify Grantee of any
26
conveyance of any interest in the Property, including the full name and mailing address of any
transferee, and, in the case of a transfer to an entity, the individual principals thereof. The
instrument of any such conveyance shall specifically set forth that the interest thereby conveyed
is subject to this Easement, without modification or amendment of the terms of this Easement,
and shall incorporate this Easement by reference, specifically setting forth the date, office, liber
and page of the recording hereof. The failure of any such instrument to comply with the
provisions hereof shall not affect Grantee's rights hereunder or the validity of this Easement.
7.02 Entire Understanding
This Easement contains the entire understanding between its parties concerning its
subject matter. Any prior agreement between the parties concerning its subject matter shall be
merged into this Easement and superseded by it.
7.03 Amendment
The parties may agree to amend the provisions of this Easement if such amendment will
enable Grantee to amplify the public benefits attributable to this Easement. Any such
amendment shall be permitted only upon Grantee's determination, in its sole and absolute
discretion, that such amendment will not jeopardize Grantee's status as an organization
described in Code sections 170(h)(3) and 501(c)(3).
This Easement can be amended and modified only in accordance with the common and
statutory laws of the State of New York applicable to the modification of easements and
covenants running with the land. Grantee and Grantor shall mutually have the right to agree to
amendments to this Easement, provided, however, that Grantee shall have no right or power to
agree to any amendment hereto that would result in this Easement failing to qualify as a valid
Conservation Easement under Article 49, Title 3 of the Environmental Conservation Law of the
State of New York, as the same may be hereafter amended, or any regulation issued pursuant
thereto. No amendment may be approved by Grantee that would - or, as Grantee in its
judgment may determine, could - violate the rules of impermissible private benefit or of private
inurement under applicable sections of the Code, including but not limited to Section 501(c)(3)
of the Code, or affect this Easement's perpetual duration.
7.04 Administrative Costs.
The administration of this Conservation Easement by Grantee requires considerable
time and expense. Grantee shall bear all routine administrative expenses related to the
Conservation Easement, including but not limited to the following activities: routine easement
monitoring and reporting and review of written notices of proposed activities from Grantor.
27
Grantor agrees to pay Grantee's reasonable non-routine administrative expenses, including
reasonable attorneys' and consultants' fees, for non-routine administration of this Conservation
Easement, including but not limited to Grantor's request for approval of any activity requiring
Grantee's approval under this Conservation Easement, enforcement of violations or threatened
violations of this Easement, and any amendment to this Easement that is requested or otherwise
initiated by Grantor, including but not limited to an amendment necessitated by Grantor's
request to modify the Property's described areas pursuant to Section 3.04.D. hereof; provided,
that Grantee shall (i) notify Grantor of its determination that a particular request or other event
will cause Grantee to incur non-routine administrative expenses prior to incurring same and (ii)
provide to Grantor a good-faith (but non-binding) estimate of the anticipated amount of such
expenses.
7.05 Severability
Any provision of this Easement restricting Grantor's activities which is determined to be
invalid or unenforceable by a court of competent jurisdiction, shall not be invalidated. Instead,
that provision shall be reduced or limited to whatever extent that 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.
7.06 Notice
All notices required by this Easement must be written. Notices shall be delivered by
hand; by express, certified or registered mail, with sufficient prepaid postage affixed and return
receipt requested; or through courier delivery by a national courier service which provides
automated delivery tracking. Notices to Grantor shall be addressed to Grantor's address as
recited herein, or to such other address as Grantor may designate by notice in accordance with
this Section. Notice to Grantee shall be addressed to its principal office, recited herein, marked
for the attention of the President, or to such other address as Grantee may designate by notice in
accordance with this Section. Notice shall be deemed given and received as of the date of its
actual delivery to the recipient.
7.07 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
6.08 hereof.
28
7.08 Interpretation
Regardless of any contrary rule of construction, no provision of this Easement shall be
construed in favor of one of the parties because it was drafted by the other party or the other
party's attorney. No alleged ambiguity in this Easement shall be construed against the party
which drafted it, or against the party whose attorney drafted it. If any provision of this
Easement is ambiguous or shall be subject to two or more interpretations, one of which would
render that provision invalid, then that provision shall be given such interpretation as would
render it valid and be consistent with the Conservation Purpose of this Easement. Any rule of
strict construction designed to limit the breadth of the restrictions on use of the Property shall
not apply in the construction or interpretation of this Easement, and this Easement shall be
interpreted broadly to effect the Conservation Purpose of this Easement as intended by the
parties. The parties intend that this Easement, which is by nature and character primarily
negative in that Grantor has restricted and limited his right to use the Property, except as
otherwise recited herein, be construed at all times and by all parties to effectuate its purposes.
7.09 Public Access
Nothing contained in this Easement grants, nor shall be interpreted to grant, to the
public any right to enter upon the Property.
7.10 Warranties
The warranties and representations made by the parties in this Easement shall survive
its execution. If, at any time, a party discovers any information or facts that would materially
change any of such warranties and representations, the representing party shall immediately
give written notice to the other party of those facts and that information.
7.11 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.
7.12 Enforceable Restriction; Successors
The covenants, terms, conditions, and restrictions of this Easement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective personal
representatives, agents, heirs, successors, and assigns and shall continue as a servitude running
in perpetuity with the Property. The terms "Grantor" and "Grantee," whenever used herein, and
any pronouns used in place thereof, shall include, respectively, the above-named Grantor and
29
its representatives, agents, licensees, successors, and assigns, and the above-named Grantee and
its successors and assigns.
7.13 Termination of Rights and Obligations
A party's rights and obligations under this Easement terminate upon transfer of the
party's interest in the Easement or the Property, except that (i) those rights conferred to OHS as
expressly provided herein shall survive transfer, and (ii) liability for acts or omissions occurring
prior to transfer shall survive transfer.
7.14 Headingg
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
received this Deed of Conservation Easement on the day and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
GRANTOR
OYSTERPONDS HISTORICAL SOCIETY, a not-for-profit New York Corporation
R~u[h Ann Bramson t/v -
President
ACKNOWLEDGED AND ACCEPTED:
GRANTEE
PECONIC LAND TRUST, INCORPORATED, a not-for-profit New York Corporation
BY:
ViceWre'si~tent
30
ACKNOWLEDGEMENTS
STATEOF NEW YORK )
COUNTY OFSUFFOLK ) SS:
On this~'"day of \~-'~' in the year 2012 before me, the undersigned, personally
appeared Ruth Ann Bramson, 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(ie~ ~d\hat by his/her/their signature(s) on the instrur~ent, the individual(s), or the
person upon 4]~c ~Vhich the individual(s)acted, executed the instrument.
!
Notary Public
STEVEN BODZINER
Notary Public, State Of New York
NO. 02BO4672972
Qualified In Suffolk County
Commission Expires February 28, 2015
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
v~ of~l~,~ i~n the 2012 me,
On this'']'''~ day year before 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(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(ies),,~r, ~thl~t by his/her/their signature(s)on the instrument, the individual(s), or the
person upon O~ .~wiich the individual(s) acted, executed the instrument.
Notary Public j~ SI'EVEN BODZINF-R
Notary Public, State Ot New York
No. 02B048'/~7~
Quallll~ in Suffolk County
~ommisslon Expires Feb~etY 28, 2015
31
SCHEDULE A:
SCHEDULE B:
SCHEDULE C:
Metes and Bounds Description of the Property
Metes and Bounds Description of the Open Area
Metes and Bounds Description of the Historic Preservation/Accessory
Structure Area
EXHIBIT A:
EXHIBIT B:
Conservation Easement Map of the Property
Site Plan of the Historic Preservation/Accessory Structure Area
32
SCHEDULE A
Property
Ward Conservation Easement - Schedule A
ALL that certain plot, piece or parcel of land, with the buildings and improvements
thereon erected, situate, lying and being at East Marion, Town of Southold, County of
Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the northerly side of Main Road (N.Y.S. Rte. 25), said point
being distant 607.65 feet eastedy from the corner formed by the intersection of the
northerly side of Main Road (N.Y.S. Rte. 25) and the easterly side of Cove Beach Drive;
RUNNING THENCE along land now or formerly of Michael Hartofelis, Renee Hartofelis
and Melissa Melis and along land now or formedy of the Town of Southold, North 14
degrees 32 minutes 50 seconds West, 731.02 feet;
THENCE North 77 degrees 20 minutes 00 seconds East, 252.83 feet;
THENCE South 12 degrees 40 minutes 00 seconds East, 776.67 feet to a concrete
monument on the northerly side of Main Road (N.Y.S. Rte. 25);
THENCE along the northerly side of Main Road (N.Y.S. Rte. 25) along the 'arc of a curve
beadng to the dght, having a radius of 1,009.00 feet, a distance of 233.97 feet to the
point or place of BEGINNING.
Underwriter No. 322752S1936
Tille Number BAL1936S
SCHEDULE B
Open Area
Ward Conservation Easement - Schedule B - Northerly Podion
ALL that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being at East Marion, Town of
Southold, County of Suffolk and State of New York, bounded and described as
follows:
BEGINNING at a point distant the following two (2) courses and distances from
the corner formed by the intersection of the northerly side of Main Road (N.Y.S.
Rte. 25) and the easterly side of Cove Beach Drive:
1. Southeasterly, as measured along the nodherly side of Main Road (N.Y.S.
Rte. 25), 607.65 feet;
2. North 14 degrees 32 minutes 50 seconds West, 680.99 feet to the true point
or place of beginning;
RUNNING THENCE from said point of beginning, North 14 degrees 32 minutes
50 seconds West, 50.03 feet;
THENCE North 77 degrees 20 minutes O0 seconds East, 252.83 feet;
THENCE South 12 degrees 40 minutes O0 seconds East, 50,00 feet;
THENCE South 77 degrees 20 minutes 00 seconds West, 251.19 feet to the
point or place of BEGINNING.
Ward Conservation Easement - Schedule B - Southerly Portion
ALL that certain plot, piece or parcel of tand, with the buildings and
improvements thereon erected, situate, lying and being at East Marion, Town of
Southold, County of Suffolk and State of New York, bounded and described as
follows:
BEGINNING at a point distant 607.65 feet southeasterfy, from the corner formed
by the intersection of the northerly side of Main Road (N.Y.S. Rte. 25) and the
easterly side of Cove Beach Drive:
RUNNING THENCE North 14 degrees 32 minutes 50 seconds West, 398.17
feet;
Underwriter No. 322752S1936
Title Number BAL'I936S
THENCE North 77 degrees 20 minutes 00 seconds East, 241.91 feet;
THENCE South 12 degrees 40 minutes 00 seconds East, 444.00 feet;
THENCE along the northerly side of Main Road (N.Y.S. Rte. 25) along the arc of
a curve bearing to the right, having a radius of 1,009.00 feet, a distance of
233,97 feet to the point or place of BEGINNING.
Underwriter No. 322752S1935
Title Number BAL'I936S
SCHEDULE C
Historic Preservation/
Accessory Structure Area
Ward Conservation Easement - Schedule C
ALL that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being 'at East Marion, Town of
Southold, County of Suffolk and State of New York, bounded and described as
follows:
BEGINNING at a point distant the following two (2) courses and distances from
the comer formed by the intersection of the northerly side of Main Road (N.Y.S.
Rte. 25) and the eastedy side of Cove Beach Drive:
1. Southeasterly, as measured along the northerly side of Main Road (N.Y.S.
Rte. 25), 607.65 feet;
2. North 14 degrees 32 minutes 50 seconds West, 398.17 feet to the true point
or place of beginning;
RUNNING THENCE from said point of beginning, North 14 degrees 32 minutes
50 seconds West, 282.82 feet;
THENCE North 77 degrees 20 minutes 00 seconds East, 251.19 feet;
THENCE South 12 degrees 40 minutes 00 seconds East, 282.67 feet;
THENCE South 77 degrees 20 minutes 00 seconds West, 241.91 feet to the
point or place of BEGINNING.
EXHIBIT A
ROAD
SURVEY OF PROPERTY
EAST MARION
TOWN OF SOUTHOLD
SUFFOLK COUNTY. NEW YORK
EXHIBIT B
z
N 77'20'00" £