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HomeMy WebLinkAboutL 11162 P 257 QRANT OF OPEN SPACE CONSERVATION EASEMENT THIS GP-kNT ,4F OPEN SPACE CONSERVATION EASEMENT, is made on the •1 "kday of ; 1990 at Orient. New York. The parties are LLOYD 2 TERRY, Main Road, Orient, New York 11957 (herein called the 01Grantor" ) , and the PEOPLE OF THE STATE OF NEW YORK, acting by and through 1 Thomas C. Jorling, their Commissioner of Environmental Conservation who has an office at 50 Wolf Road, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, 50 Wolf Road, Albany, New York 12233 , (herein called the "Grantees" ) ; INTRODUCTION / WHEREAS, the Grantor is the owner in fee of certain real property hereinafter more fully described in EXHIBIT A attached hereto, and hereinafter referred to as the Protected Property; and WHEREAS, the Protected Property in its present natural, scenic, open space and wooded condition has substantial and significant value as a natural, aesthetic, scientific, and educational resource by reason of the fact that it has not been subject to any extensive development or exploitation; and WHEREAS, the Protected Property; which lies directly north of Orient 'Beach State' Park-"and is separated from it by Little Bay, and lies directly west' of and adjacent to other lands protected by an Open Space Easement of which the State of New York is a beneficiary; consists of wetlands J inventoried by the New York State Department of Environmental Conservation pursuant to the New York State Tidal Wetlands Act, said wetlands being classified as intertidal marsh, high marsh, and connected and buffering upland of high quality; and WHEREAS, the Protected Property is included in 460+ acres of land proposed to to be acquired by the New York State Department of Environmental Conservation pursuant to Environmental Conservation Law (ECL) Section 3-0305 and the Eminent Domain Procedure Law (EDPL) ; and n WHEREAS, the Southold Town Trustees have designated portions of the Protected Property and contiguous land around Little Bay in Orient as a "critical environmental area" under the provisions of the:. New York State Envi'ronmE!htal Quality Review Act; (Article 8 of ECL) and as implemented by regulations contained at 6 NYCRR PART 617; and ') WHEREAS, Nuw Yotk State' s Coastal Zone Management Plan has identified jt4ae Little Bay area, including the Protected Property, to be an important shell and finfish nursery area; and WHEREAS, the Little Bay area, including the Protected Property, represents a significant habitat frequented by the osprey (a threatened species) and the diamond-back terrapin (a special concern species) as they are identified under Section 11-0535 of the New York State Environmental Conservation Law; and WEREAS, the Grantor wishes to maintain the Protected Property in its -u re t natural/open space condition; and 1 WHEREAS, the Protected Property is part of a larger area of adjacen armland, open space, and wetlands which the Grantee is trying to-protect i=n its entirety; and f WHEREAS, the Grantor and the Grantee recognize the value and special character of the region in which the Protected Property is located, and the Grantor and the Grantee have, in common,. the purpose and objective of prof=ecting and conserving the present state and inherent, natural tangible and intangible values of the Protected Property as a natural, aesthetic, scientific and educational resource; and WHEREAS, an Open Space Conservation Easement on the Protected Property contributes to the larger goal of protecting the environmental integrity of 1 $ EC I °E + 5705 READ ESTATE OCT 30 1990 ® TRANSFER TAX T SUFFOLK Lung Beach Bay and complements efforts of the New York StateDepartment of Environmental Conservation to accomplish e; and WHEREAS, the Grantee has determined it to be desirable and beneficial and has requested the Grantor, for itself and its successors aiid assigns to grant an Open Space Conservation Easement to the Grantee in order to further restrict the development of the Protected t it permitting compatible uses thereof; NOW, THEREFORE: 0 . 01 Grantor' s Warranty Grantor warrants and represents to the Grantee that Grantor is the owner in fee simple of certain unimproved real property located hamlet of Orient, Town of Southold, Suffolk , New York, and possesses the right to grant this Easement. 0. 02Grantee' s Status Grantee warrants and represents to Grantor that Grantee is a governmental entity qualified under Sectio 1 ) ) of the Internal Revenue Code of 1954, and any amendatory or supplemental legis (herein called "the e" ) , established for purposes whichinclude the conservation reservation of unique environmental, scenic and natural value of landwithin New York State. 0 . 03 Purpose The parties recognize the environmental, scenic and natural values of e Protected Property ave the common purpose of preserving values. This Grant is intended o convey an Open Space Conservation Easement on the Protected Property rantor to Grantee, exclusively the purpose of preserving its open space character in perpetuity environmental, scenic and natural values, by preventinguse or development of the Protected Property for any purposenmanner contrary to the provisions herein, in furtheranceYork conservation policies clearly delineated by the New York Statutes. 0 .041`ecitation 1 y Tn consideration of the previously recited facts, mutual promises, undertakings and forbearances contained in thisEasement, and valuable consideration, the parties agree o its provisions, intending to be bound by i . ARTICLE ONE THE S 1 .01 Type This Grant conveys an Open Space Conservation Easement called the s nt" ) . The Easementconsists the covenants, restr I ctions, rights, terms, and conditions recited in this Grant. Reference t "the Easement" or its "provisions" in this Grant shall include any and all of those covenants, restrictions, rights, terms' and conditions. 1.02 Duration i This Easement shall be a burdenrun with the property in perpetuity. 1. 03 Effect The Easement shall run with th6 Protected e c 1 Interest in the ProtectedProperty, or isGrantor's es, tenants, heirs, personal representatives, successors and assigns, and all other individual entities. 2 ;RTI(`LE TWO PROHIBITED ACTS Ftom and after the date of this Easement, the followingacts, uses and '` 'practices shall be prohibited forever upon or within the Protected - pro et . 2.01 Structures The construction or placement of buildings, structures (except for atrr level regulation works) or improvements of any kind or nature, including, but not limited to, roads, mobile homes, antennae and satellite fishes, permanent or temporary, on, over or underProtected Property except as specifically permitted e ei . 2 .02 Excavation and Removal of Materials The dredging, excavating, mining or filling of the Protected . The removal of topsoil, sand, or other materialsall not tae place on the Protected Property nor shall the topography of the Protected e changed. Such activities may be allowed, however, in accordance sound management r cice designed to pr6tect, maintain or enhance natural qualities of the Hallock' s Baytidal wetland resource, as determined by the Grantee, provided all applicable Federal,- State, and local laws and regulations are met. Subject to the reserved right of the Grantor, his heirs successors and assigns, to repair, protect and maintain the earthen, i e on the protected property so long as adjacent remaining lands of the Grantor shall be wholly or partiallyused for agricultural purposes. f. . 03 Subdivision The subdivision of partitioningof the ProtectedProperty. 2.04 Cutting of Timber The cutting f harvesting of timber except for the followinq purposes: a) to clear and restore forest cover that has been v forces of nature or otherwise, and b) to prune and selective) trees ire accor ance with sound cep forest management practices determined y the Grantee, and c) to cut and remove firewood p I ersonal residential use of Grantor and hisheirslong as he or they retain fee ownership f the adjacent land. ,:1 2 . 05 Dumping The dumping or accumulation of trash, , garbage, sawdust, ashes, chemical waste or other unsightly offensive material on the Protected Pro e . t. . 06 Signs he display ,of signs, billboards, or advertisements tett rope ty except signs, whose placement, number, and design , do not . significantly i inin scenic character of the Protected on ' for the following pur oses: ) to state the name of the Protected Property and the names and addresses of the occupants, temporarily to ,advertise the ProtectedProperty , a to post the Protectedr , in accordance with licb provisions of law. 2 .07 Landscaping viies The removal of trees, shrubs, or other vegetationfrom rotect Property, except as provided by Section5. .2 . 00 Utility Lines =The creation or placement of utility transmission i e , utility toles, or wires or other utility facilities on the Protected except with the Grantee' s prior written consent, or in accordance Section 9-0307 of the New York State Environmental Conservation Law. 2 . 09 Uses The use of the Protected Property for any commercial, industrial, .residentialpurpo's' e except as may be specifically permitted by a provision of this Easement. ARTICLE THREE GRANTOR' S IG 3 . 01 ownership Subject to this Easement, Grantor shall retain all other customary rights of ownership in this Protected Property, some of whichmore particularly described in this ARTICLE THREE. 3 . 02 Possession Grantor shall continue to have the right to exclusive possession the Protected Property. 3 . 03 Use Grantor shall have the right to use -t e Protected Property in any manner and for any purpose consistent with and not prohibited Easement as well as applicable New York State law and whichof defeat or derogate from the purpose of the Easement. 3 .04 Landscaping Activities Grantor shall have the right to continue the historical modes landscaping, ri , and grounds maintenance ( see terms of section thiseasement) of the Protected Property, provided t - wetlandl species shall not e intro Protected With Grantee' s written consent, Grantor shall have the right trees, shrubs, or other vegetation when- dead, isse , or dangerously decayed. 3 .05 Firewood Cutting , filo E. Te n i is all ht cut and remove firewood for personal residential use for so long as he or his heirs retain the fee ownershipf the lands adjacent o the lands described Exhibit attache . Such ri shall not a je o consent vis 3 . 06 Dike, Camp and BridgeMaintenance Grantor shall have the right to operate, repair and maintain, of i proe or expand, the existing earthen dike, camp building and bridge locatid on the premises and in connection therewith the right or ingress, egress and regress across the premises provided, however, :that nothing herein contained shall be construed as r6lieving the owner of the obligation securing all necessary approvals of any governmental having jurisdiction, including the NYS rs t to Article 25 of the Environmental Conservation Law. Said reservation shall remain in force and e in effect for so long as the adjacentr i lands of the owner shall e wholly or partiallyused for agricultural purposes and practices same are defined by the provisions of the Agriculture and Markets Law. 3. 07 Notice Grantor shall notify Grantee, in writing, before taking any actio 4 vers u.ant to the terms of Section 2.02 or 2. 04 of this Easement, or before exercising any reserved right pursuant to the terms of Section 3 .03, or 3 - 04 cif this Easement, with respect to the Protected Property, or any of her reserved right which could adversely affect the conservation purposes which are the subject of this Easement. 3 .08 ' Aliettability Grantor shall have the right to convey or lease the Protected Property but only subject to this Easement. Grantor shall promptly notify 3 Grantee of any conveyance of any Interest in the Property, including the A full names and mailing addresses of all Grantees, and the individual A- principals thereof, under any such conveyance. The instrtument of arrry such conveyance shall specifically set forth that the interest thereby conveyed is subject to this Easement, without modification or amen dment 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 all not affect Grantee' s rights hereunder. ARTICLE FOUR GRANTOR' S OBLIGATIONS 4.01 Maintenance Grantor, at Grantor' s sole cost 'and expense, shall co intinue to mantain the Protected Property in the same physical condition as it is on -the date of, and in conformance with, this Easement. 4 '. 02 Taxes and Assessments Grantor shall continue to pay all. taxes, levies, and assessments and other governmental or municipal charges is may become a lien on the Protected Property, including any taxes or levies imposed to make those payments. ARTICLE FIVE INDEMNIFICATION 5 .01 Indemnification by Grantee "The Grantee, for itself and its successors and assigns agrees to indemnify and hold the Grantor harmless against claims, loss, dantage and expense the Grantor may suffer as a result of the Grantee' s negligence in properly cunstructing, maintaining, repairing, replacing or managing any recreational antenities and actionable conduct of the Grantee as permitted by the Court of Claims Act and Section 17 of the Public officers Law. 5 .02' Grantors Obligations "The duty to indemnify and save harmless -prescribed by this paragaph shall be conditioned upon ( 1) delivery to the Attorney General by the Glan-tor of the original or a copy of any surmmons, complaInt, pro ss, notice, demand or pleading within five days after it is served with such document, ( ii) representation by the Attorney General or representzation by private counsel of Grantor' s choice, subject to the approval of the Attorney General, whenever the Attorney' General determines in his sole discretion based upon his investigation and review of the facts and circumstances of the case that representation by the Attorney General would be inappropriate, and ( iii) the full cooperation of the Grantor in the defense of such action or proceeding and in defense of any action or proceeding against the Grantee based upon the same act or omission, and in t'he 'Prosecution of any appeal." AR`T'ICLE SIX GRANTEE' S RIGHTS 6 , 01 Entry for Tsection Purposes Grantee shall have the right to enter upon the Protected Property at reasonable times, upon reasonable prior notice to Grantor, and in a 14 inaer that will .not interfere with the Grantor' s quiet use and enjoyment ,- of the Protected Property, for the purpose of Inspection to determine whether the Easement and its purposes and provisions are being upheld, and for purposes of scientific research such as collection of data and the laceet and monitoring of resource sampling and data collecting q-lipment 6 . 02 Access The Grantee and its employees or agents may enter upon the Protected Property in order- to protect, maintain or enhance the natural qualities the alloc ' s Bay tidal wetland resource. Such activities may include, but are not limited to, the clean-up of pollutants from jacewaters upland point or non-point sources, the protection of the wetlands from such pollutants or the protection of indigenous bird, fish, am.i l or botanical populations. Prior notice shall be given to the Grantor of the need for such access. However, no prior notice to Grantor shall be required in order to respond < to an emergency; in order to save human Life or natural resources. In no event may the Grantee admit the general publico the Protected Property or use or permit the use of the Protected Property for recreational or commercial purposes . The State' s right to enter the Protected Property is for the limited and temporary purposes indicated. Upon the completion of any such activities, employees or agents of the Grantee shall leave the Protected Property in its natural condition shall remove any equipment or supplies or materials they have brought onto the Protected Property. Nothing contained in thisEasement grants, nor shall be interpreted grant, to the public any right to enter upon the Protected , except or educational and scientific purposes with the priorwritten both the Grantor and Grantee. 6. 03, Enforcement Rights of Grantee In the event of a breach of any of the covenants, restrictions, terms or conditions of this easement, the Grantee shall notify the G rantor, or its successors or assigns, o any such reach. Suchnotification all be in writing, addressed to the Grantor at its address as stated herein, or any other address provided by the Grantor or its successors or assigns, and sent by registered or certified-mail, return receipt requested. Grantor upon receipt of such notification shall promptly cure the breach O ceasing the proscribed activity or conduct and ) restoring the Protected Property to the natural state in which it existedimmediately preceding the breach. The parties agree- that, the natural state of the Protected Property as documented by the inspection by the Grantee most recently preceding the breach shall be the natural state of the Protected Propety immediately rece i the breach. Teobligation of the Grantor to recto e the property to such natural state shall include, as determined the 'Grantee, the repair or replacement of previousman-made alterations to the Protected Property or the carrying out of further man-made alterations s is necessary for the purpose of stopping or remedying environmental harm resulting from the breach in question. The Grantor acknowledges that this easement, all of its terms, conditions, covenants and restrictions may be enforced by the Grantee, and its successors, by any action or proceeding, at law or in equity, as the Grantee, or its successors, may elect; provided, however, that the Grantee may not commence any such action or proceeding prior to the 'expirationf thirty ( ) days after the delivery o .the notice herein referred . It is understood and agreed by the parties hereto that the Grantor, its successors and assigns shall not be liable for any changes Protected Property caused by any natural disaster or act of God. 6 ,04 -No Waiver Grange' s exercise of one remedy or reliefe this ARTICLE SIX shall of have the effect of waivingor limiting ny other remedy or relief, and the failure to exercise or delay in exercisingremedy 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 of any other time. ATeICLE SEVEN ` MISCELLRNEOUS 7 . 01 Entire Understanding 01 This Easement contains the entire understanding betweenits parties ....�oncerninq its subject matter. Any prior agreement between the parties concerning its subject matter shall be merged into this Easement and 3uperseded by i . 7 .02 Amendment This Easement can be terminated i i only in accordance with the common and statutory law of the State of New York applicable termination o ification of Easements and covenants running land. Grantor and Grantee recognize that circumstances could arise which would justify the modification of certain of the restrictions contained this Easement. To this end, Grantee and Grantorshall mutually have the right, in their sole discretion, to agree to amendments to this Easement which are not Inconsistent with the basic purpose of the Easement set fort in Section 1 hereof; provided, however, that Grantee shall have no right o power to agree to any amendments hereto that would result in this Easement failing a i as a valid conservation Easement under Article 3 of the Environmental Conservation Law of the State of NewYork, as the same may be hereafter amended, and any regulation issued pursuant thereto, or 170 (h) of the Internal Revenue Coe governing "Qualified Conservation contributions ." , as the same may be hereafter amended. 7 .03 Severability Any provision of thisase e , restricts ' s activities, which is .,determined to be invalid r unenforceable by a court, shall not be invalidated. Instead, that provision shall be reduced or limited to whatever extent that court determines will make it enforceable and effective. Any other provision of this Easement which is determinedo be invalid or unenforceable by a court shall be severed from e other provisions , which all remain eorc 'a effective. 7:. 04 ;Notice ARTICLE I GRANTEE' S7 6 .01 ElLtry for Inspection Purposes Grantee shall have the right to enter upon the Protected Property at reasonable -ti s, upon reasonable prior notice to Grantor, and in a manner that will not interfere with theGrantor' s quiet use and enjolyne y of the Protects Property, for e purposef Inspection o eterm$ne l whether the Easement and its =epurposes and provisions are being upheld, and 3lacement or purposes of scientific research s s collection data and the and monitoring of resour e sa lin ata collects - uipment. 6 . Access The Grantee and its employees or agents may enter upon the Protected Property eprotect, maintain or enhance the allot ' s Bay tidal wetland resource. Such activitiese, but are not limited t , the clean-up o from ce t waters or ---land pointor non-point sources, the protection e tlands from such llutants or the protectionof indigenous it pulations. Prior notice shall be given to the Grantorof the need for „r.+ ;. ter, r_rnni-nr Thal l },p rprmirpri in order } 7 .06 Interpretation 'Regardless of any contrary rule of construction, o provision Easement shall be construed in favor of one of the parties because it was drafted e otherparty' s attorney. No allegedambiguity in this Easement shall be construed against e party whose attorney drafted. If any provision of this Easement is ambiguous or shall be subject two or Ir"nore, interpretations, one of which would render that provision invalid, .7. then that provision shall be given such interpretation as would ren t ;valid and be consistent with 'the purposes of this ase s intended rantcr . Any rule of strict constructions designated limit f the restrictions on use of the Pro ectPropertyall not apply in the -onstructlon orinterpretation of this ase , i ase all e InLerpreted broadly to effect the purposes of the Easement as intended y Grantor. The parties intend that the Easement, which is by nature character primarily negative in that Grantor has restricted Grantor' s right to use the Protected Property, except as otherwise cite herein, be construed at all times and by all parties to effectuate its® purposes. 7 . 07 Warranties The warranties and representation made by the parties in this Easement shall survive its execution. 7 .08 Bi in The covenants, terms, conditions restrictions and purposesof this Easement with the exception of the personal right of Lloyd E. Terrys heirs to cut firewood as provided by Sec 3 .05 above, shall run with the Protected Property, and shall bind the successors and assigns of each of the parties respectively. This Easement shall extend to and be binding upon Grantor, Grantor' s agents, tenants, heirs, personal representatives, successors and assigns. Any rights, obligations, and interestser granted to Grantee shall also be deemedits agents, successors, and assigns and eachsuch following successor tine won "Grantee" when used herein shall include allthose persons entities. 7 Recording Grantee shall have the right to record thisase at any time without notice to Grantor. 7 . 10 ea ings The headings, titles and subtitles herein have been inserted solely for convenient reference, and shall be ignored in its construction. 7 .11 Physical Inspection The Grantor and Grantee agree that the New York State Department of Environmental Conservation Map Number 1 "Report of Physical inspection" of the protected property accurately completely describe the n tural, scenic, open space and woodad condition and existing improlements of the Protected. Propertyon the date hereof for that purpose by either party hereto in any subsequentaction or proceeding er copy of said aOffice the Suffolk County Clerk simultaneously irecording- of this indenture. Each party has been furnished said a t of Physical Inspection, dated 3/15/90. WiTNESS WHEREOF, Grantor has executed And deliveredand Grantee has accepted and received this Grant n Space Conservation sem e tray and year set forth above. Ll yd Terry (Grar, ,r) �41EW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION BY: ith � � '� 1,11;1 all Langdon-=t rsh, E7xecu+-ive DeputyCommissioner STATE OF NEW YORKSj) S COUNTY OF _ 1 day r l ;? before On ,his personally appeared a - to'me known and known to me to be the gran 4mentioned n escribe i , and who executed the foregoing instrument, and he/she duly acknowledge to me that he/she s,ame. 4 # � Notary Public 'J`ATRICIA 13.ZIELENSKI Higary Public,State cf Now Y -50 Qualified tri Sf STATE � YORK ) a0raa 90 COUNTY OF On this day of1990,, before esoLangdon Marsh, to me known, who bein by me duly sworn, did deposea that he residesat �� a is eDeputy Co ivsine o the e York 'State Departmentnviro Conservation, and thate executed the foregoing n behalf of the New York State Department of Environmental Conservation pursuant of authority my delegated. ; Not y Public NftY PUNIC,State of New or QtAVW In lar Co. 05980685 My Commission Expires May 31 . 9 EXHIBIT "A" ALI, THAT TRACT or parcel of land situate at Orient in the Town of Southh ld, County of Suffolk and Sate of New York CO being more particularly bounded and described as follow GII G point forme the intersection the c easterly line of the land of Frank B. Zimmer with the westerly line of the land of the State of NewYork, the coordinate in the New York State Plane Coordinate System, Long Island Zone being N. 339 , 904 . 29 , E. 2 , 479 ,748 . 44 , and running thence .from said point of beginning . 2 ® " W. along the land of Frank B. Zimmer 121 . 99 Feet to other Lloyd Terry; thence S. 88" 31 52" E. alongother land of LloydTerry 499 . 45 feet to the land of Constance Terry and others; thence S. 28" 31 4711 E. along the, land of V. Constance Terry and others to a point in the high water mark of Little Bay; thence westerly, southerly southwesterly along the high water mark of Little Bay to the landof the State of NewYork, tie line along the high water mark of Little Bay having the ollowiacorses and distances : 1 . N. 76" 13 ' 18" W. 36 . 03 feet, 2 . S. 37" 56 ' 0099 E. 86 . 22 feet, 3 , S. " 48 ' 2" E. 160 . 13 feet, 4 S. 64" 18 ' 039' W. 88 .78 feet, P 10TR IN WN XP* -M U-mt;L a 5 . S . 5 ' 05" W. 69 . 85 feet , L93 6 . S . " 51 ' " W. 95 . 86 feet, 7 . S . 57" 21 ' 43" W. 200 . 99 feet ; thence northerly, westerly, and again northerly along the land of The State of New York the following courses, an distances : 1 . N. 6`° 35 ' 1" W. E97 .71 feet, . S . 82' 30 ' 390 . 00 feet, 3 . N. " 27 ' E. 302 . 06 feet, 4 . N. `° 2 ' " W. 80 . 01 feet to the point lace of beginning, containing an area of 10. 0214 acres, less. The bearings as set forth in the above describedarc land are referenced to Gridort York tate Plane. Coordinate s , Long Island one. t BEING a part of lands described in a deed from Marcus W. Terry and Clara G. Terry to Caroline M. Terry dated January 27, 1927 and recorded arch 28 , 1933 in Liber 1671 of Deeds at Page 442 . The said Caroline M. Terry died February 21, 1958 leaving a Will which was duly admitted to probate in SuffolkCounty by the terms of which Will the subject premises was devised to the grantor herein.