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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. 5 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. 16 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" £