3.15 3.15
AGREEMENTSTake George Land Conservancy—Property Purchase French Mountain Preserve—Conservation Easement—9-10-18
RESOLUTION AUTHORIZING AGREEMENT BETWEEN TOWN OF
QUEENSBURY AND LAKE GEORGE LAND CONSERVANCY, INC. FOR
PROPERTY PURCHASE AND CONSERVATION EASEMENT IN
CONNECTION WITH FRENCH MOUNTAIN PRESERVE
RESOLUTION NO.: ,2018
INTRODUCED BY:
WHO MOVED ITS ADOPTION
SECONDED BY:
WHEREAS, the Lake George Land Conservancy, Inc. (LGLC) has advised that it wishes
to purchase certain property in the Towns of Lake George and Queensbury currently owned by
French Mountain Forest, LLC for the price of$525,000 consisting of 318± acres east of Bloody
Pond Road with property bearing Tax Map No.: 265-1-28 located in the Town of Queensbury
and properties bearing tax map nos. 264.16-1-27, 264.16-1-28, 265.00-2-1 located in the Town
of Lake George, such properties collectively referred to as the French Mountain Preserve, and
WHEREAS, in an effort to protect and preserve that portion of property in the French
Mountain Preserve located in the Town of Queensbury, the Queensbury Town Board wishes to
subsequently purchase from LGLC that portion of property bearing Tax Map No.: 265-1-28 for
the amount of$67,000, and
WHEREAS, the Town Board also wishes to grant to the LGLC a Conservation Easement
restricting the use of the property to passive recreation uses by the public and/or to permit
forestry management and donate $10,000 to LGLC for administration of the Conservation
Easement, and
WHEREAS, a proposed Agreement between the LGLC and the Town of Queensbury
regarding the Town's property purchase is presented at this meeting and is in form acceptable to
Town Counsel,
NOW, THEREFORE, BE IT
RESOLVED, that the Queensbury Town Board hereby authorizes the Agreement
between the Lake George Land Conservancy, Inc. (LGLC) and the Town of Queensbury
providing for the Town's purchase of property bearing Tax Map No.: 265-1-28 for the amount of
$67,000, and an additional $10,000 for the administration of the Conservation Easement, as more
specifically delineated in the preambles of this Resolution, and
BE IT FURTHER,
RESOLVED, that the Town Board further authorizes and directs the Town Supervisor to
execute the Agreement substantially in the form presented at this meeting, as well as a
Conservation Easement with the LGLC to be in form acceptable to Town Counsel and/or the
Town Supervisor, and any other needed documentation to effectuate the property purchase and
Conservation Easement, and
BE IT FURTHER,
RESOLVED, that the Town Board further authorizes and directs the Town Budget
Officer to take all actions needed to provide for the expenditures of $67,000 for the property
purchase and $10,000 for the administration of the Conservation Easement, including amending
the Town Budget by decreasing the Town's Undesignated, Unappropriated General Fund
Balance 4001-0000-0909 by $77,000 and increasing Land Acquisition Appropriation Account
4001-1940-2820 by $77,000, and
BE IT FURTHER,
RESOLVED, that the Town Board further authorizes and directs the Town Supervisor,
Town Budget Officer and/or Town Counsel to take any other needed actions to effectuate the
terms of this Resolution.
Duly adopted this 1 Oth day of September, 2018, by the following vote:
AYES
NOES
ABSENT:
AGREEMENT
This Agreement, entered into this day of September, 2018, by and between
the Lake George Land Conservancy, Inc. ("LGLC") a not-for-profit corporation duly
formed under the laws of the State of New York, having a mailing address of 4905
Lakeshore Drive, PO Box 1250, Bolton Landing, New York 12814, and the Town of
Queensbury ("Queensbury" or "the Town") a municipality in the State of New York,
located in Warren County, having a mailing address of 742 Bay Road Queensbury, New
York 12804 sets forth the terms under which the parties have agreed to purchase
ownership interests in property located in the Towns of Lake George and Queensbury.
WHEREAS, LGLC and Queensbury desire to protect and preserve lands in the
Town of Queensbury. These lands consist of 167.31± acres east of Bloody Pond Road
(tax map no. 265-1-28 in the Town of Queensbury) currently owned by French Mountain
Forest, LLC. These lands will be collectively referred to as the French Mountain
Preserve.
NOW, THEREFORE, in consideration of the terms, conditions, and other
considerations set forth below, the sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree to the following:
1. LGLC will purchase the 318± acres from French Mountain Forest, LLC for the
price of$525,000.
2. Immediately after LGLC purchases the 318± acres from French Mountain Forest,
LLC, Queensbury will purchase from LGLC the lands in the Town of Queensbury
(currently tax map no. 265-1-28).
3. Queensbury will pay $67,000. to LGLC for the Town's lands, and LGLC will
transfer all of the rights, privileges and interests in the properties free of all
encumbrances and exceptions except:
a. Laws and government regulations, including but not limited to zoning and
environmental protection laws;
b. Normal utility distribution easements,
c. Easements or restrictions of record imposed on the properties, provided
they are not violated by the existing buildings or improvements (if any)
erected on the properties;
d. Such taxes and assessments for the current year as are not due and
payable on the date of closing; and
e. Any state of facts an accurate survey or inspection of the properties would
disclose, provided they do not render title unmarketable.
4. Queensbury agrees that the 318± acres of land will be used solely for passive
recreation by the public and/or forestry management, and that this provision shall
survive the closing. In addition to the provision in this paragraph, at the closing
(immediately after conveyance of the lands to the Town), the Town will grant to
LGLC a conservation easement restricting the use of the land to passive
recreation uses by the public, including but not limited to: trails for hiking, biking,
snowshoeing and cross-country skiing, and other non-motorized activities, and a
parking lot solely to be used to provide parking for such activities. The
conservation easement will also permit forestry management, prohibit subdivision
of the property, and exclude residential, commercial, industrial and active
recreational uses, including but not limited to: motorized vehicles, sports facilities,
and playgrounds. The Town agrees to convey to LGLC all of the rights,
privileges and interests as set forth in the draft conservation easements annexed
hereto. The final conservation easement conveyed by the Town to LGLC at the
closing shall be in substantially the same form as the draft conservation
easements annexed hereto. The Town further agrees to convey the
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conservation easement free of all encumbrances and exceptions. In particular,
the Town agrees to satisfy or subordinate any mortgages affecting the properties,
so that the conservation easement is conveyed to LGLC free of such
encumbrances, if any. The Town agrees to donate $10,000. to LGLC for the
administration of the conservation easement.
5. Further, LGLC intends to submit a grant application to the NY Department of
Parks and Recreation during the next possible funding cycle seeking funds to
reimburse LGLC for the funds used to complete the purchase of the French
Mountain Preserve. LGLC may also re-apply if the application is denied. The
Town agrees that it will cooperate with LGLC in applying for said grant(s).
6. The Parties agree that they may apply for other grants related to the properties in
addition to the grant referenced in paragraph 5. Each Party will cooperate with
the other Party in applying for said grants.
7. LGLC shall furnish a proposed deed, TP-584, RP-5217 and copies of tax receipts
for the past year to the Town's attorneys at least 14 days before closing. LGLC
shall furnish at its expense, the following within 20 days from acceptance of this
contract by the Town, thereby establishing proof of marketable title:
a. 5 year tax search; and
b. Abstract of Title covering at least 40 years and continued to within 30 days
of closing, or a current "owner's" fee title insurance policy along with a
"stub search" continuation (including complete copies of any exceptions,
easements, covenants, restrictions and reservations set forth in such title
insurance policy) to update the title to within 30 days of closing.
8. The properties shall be transferred from LGLC to the Town by means of a
Bargain and Sale Deed furnished by LGLC. The conservation easements will be
transferred from the Town to LGLC by means of a deed of conservation
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easements (draft annexed hereto). The deeds will be properly prepared and
signed so that they will be accepted for recording in the Warren County Clerk's
Office. The Parties agree to cooperate in signing any reasonable title affidavits
and any other forms requested by the title company of any other Party.
9. The Parties agree that if any Party correctly rejects the title to any of the property
as unmarketable, then LGLC and/or French Mountain Forest, LLC shall have a
reasonable length of time, not to exceed 60 days, to cure the title defect. LGLC
and/or French Mountain Forest, LLC shall have no obligation to cure the
objection, but if LGLC and/or French Mountain Forest, LLC is unable to cure the
objection, then this Agreement may be terminated by any Party by written notice
to the other in accordance with paragraph 15 of this Agreement. If the
Agreement is terminated, the Parties shall be discharged of their obligations to
the other Parties with respect to the sale and purchase of the unmarketable
property.
10.LGLC will pay the New York State Real Property Transfer Tax.
11.The taxes and any other charges or assessments shall be divided pro-rata
between LGLC and the Town as of the date of possession so LGLC and the
Town are assuming the expenses of the properties as of the date of possession.
12.Subject to the permission of French Mountain Forest, LLC, the Town has the
right to inspect the properties at a reasonable hour within 48 hours of the transfer
of title to ascertain that there has been no material change in the condition of the
properties since the execution of the Agreement. If there has been material
change, the Town may terminate the Agreement by written notice in accordance
with paragraph 15 below.
13.The transfer of title to the properties from LGLC to the Town, and the transfer of
the conservation easement from the Town to LGLC, shall take place
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simultaneously. The transfer will take place immediately after the transfer of title
to the properties from French Mountain Forest, LLC to LGLC. The closing will be
on or about October 17, 2018. The persons executing the transfer documents
shall provide a government issued photo identification at the closing.
14.The Town shall be granted possession of the properties at closing.
15.All notices contemplated by this Agreement shall be in writing, delivered by (a)
first class mail postage prepaid postmarked no later than the required date; (b)
by electronic transmission (e-mail) by 11:59 p.m. on such required date; or (c) by
personal delivery by 11:59 p.m. on such required date. Such notice shall be
effective on the date it is sent. Any notices shall be sent to the other Party's
attorney, as follows:
Braymer Law, PLLC for LGLC
Claudia Braymer, Esq.
PO Box 2369
Glens Falls NY 12801
claudia@braymerlaw.com
(518) 882-3252
Miller, Mannix, Schachner & Hafner for Queensbury
Mark Schachner, Esq.
15 W. Notre Dame Street
Glens Falls NY 12801
mschachner@mmshlaw.com
(518) 793-6611
16.It is understood and agreement that all prior understandings and agreements
between the Parties are merged into this Agreement. This Agreement shall not
be orally amended, modified or waived, either in whole or in part, and no
amendment, modification or waiver of this Agreement or any provision hereof
shall be binding unless executed in writing by the Party or Parties to be bound
thereby.
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17.The Parties acknowledge that each has had the benefit and advice of
independent counsel in connection with this Agreement. It is understood and
agreed that the Parties shall be deemed to have drafted this Agreement in order
to avoid any negative inference by any court or other adjudicator as against the
drafter of this Agreement.
18.Each Party hereto shall be solely responsible for its own legal expenses and
costs in connection with this matter and Agreement.
19.This Agreement shall be binding on and shall inure to the benefit of the Parties,
their successors-in-interest and assignees. This Agreement cannot be assigned
without the written consent of both parties.
20.Each Party covenants and represents that it is fully authorized to enter into this
Agreement and to carry out the obligations provided for herein.
21.This Agreement is contingent upon the execution and completion of the contract
between LGLC and French Mountain Forest, LLC for purchase and sale of the
properties.
IN WITNESS WHEREOF, this Agreement has been duly executed, agreed and
accepted as of the day and year first above written.
Lake George Land Conservancy, Inc. Town of Queensbury
By: By:
Jamie Brown, Executive Director John F. Strough, Supervisor
6
STATE OF NEW YORK)
) SS.:
COUNTY OF WARREN)
On the day of in the year of 2018, before me, the undersigned, a
Notary Public in and for said State, personally appeared, Jamie Brown, personally
known to me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed this
instrument.
Notary Public
(Affix stamp or seal)
STATE OF NEW YORK)
) SS.:
COUNTY OF WARREN)
On the day of in the year of 2018, before me, the undersigned, a
Notary Public in and for said State, personally appeared, John F. Strough, personally
known to me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed this
instrument.
Notary Public
(Affix stamp or seal)
AGREEMENTS\Lake George Land Conservancy and Town—French Mountain Preserve—September 2018-FINAL
7
August 2018 DRAFT
This DEED OF CONSERVATION EASEMENT (hereinafter referred to as the
"Conservation Easement" or"Easement") is made this_day of 2018.
INTRODUCTION
WHEREAS, the Town of (hereinafter called the "Grantor"), is the owner in fee
simple title of approximately acres of real property located in the Town of , Warren
County,New York, more particularly described in Exhibit"A" and as is shown on the survey
map attached hereto as Exhibit"B", both of which are attached hereto and by reference
incorporated herein (hereinafter called the "Protected Property"). The Protected Property is
described in a deed from the Lake George Land Conservancy, Inc. to Grantor of even date
herewith and intended to be recorded in the Warren County Clerk's Office immediately prior
hereto. The Protected Property has significant ecological, conservation, open space, and aesthetic
values, as more fully set forth below; and
WHEREAS, Lake George Land Conservancy, Inc. (hereinafter called the "Grantee"), is a
not-for-profit corporation incorporated under the laws of the State of New York. Grantee is a
tax-exempt public charity under Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder(hereinafter the "Code"), has received
determination letters from the Internal Revenue Service, on file at the offices of Grantee, to the
effect that Grantee is a"publicly-supported"organization under Sections 509(a)(1) and
170(b)(1)(A)(vi) of the Code, is not a"private foundation" as described in Section 509(a) of the
Code, and is a"qualified organization"under Section 170(h)(3) of the Code. Grantee is qualified
under Article 49, Title 3 of the New York State Environmental Conservation Law(the "ECL") to
receive and hold conservation easements by purchase, gift, conveyance, grant, devise, bequest, or
otherwise; and
WHEREAS, Grantee has as its mission the preservation of natural areas for conservation,
biological, scientific, charitable, educational, and aesthetic purposes; and
WHEREAS, the grant of this Conservation Easement will serve the following
"Conservation Purposes," as such term is defined in Section 170(h)(4)(A) of the Code, as
amended: "The preservation of open space ... where such preservation is (i) for the scenic
enjoyment of the general public, or (ii) pursuant to clearly delineated federal, state, or local
govermnental conservation policy, will yield a"significant public benefit" and will also preserve
and protect the "Conservation Values" of the Protected Property, as described below in this
Introduction; and
WHEREAS, the Protected Property is a significant natural area qualifying as a
". . . relatively natural habitat of fish, wildlife, or plants, or similar ecosystem," as that phrase is
used in Section 170(h)(4)(A)(ii) of the Code, and the conservation of the Protected Property
"will yield a significant public benefit under Section 170(h)(4)(A) of the Code; and
WHEREAS, Article 14, Section 4 of the New York State Constitution states that "the
policy of this State shall be to conserve and protect its natural resources and scenic beauty"; and
WHEREAS, the Protected Property lies partially/entirely within the Adirondack Park and
is primarily classified on the Adirondack Park Development and Land Use Plan Map as Rural
Use, for which lands the Legislature of the State of New York has deemed it necessary and in the
public interest to, inter alia, preserve open spaces and protect the area's natural resources,
pursuant to Section 805(3)(f)(2) of the New York Executive Law; and
WHEREAS, the Protected Property lies entirely within the Lake George Park, regarding
which the Legislature of the State of New York has found, in ECL Section 43-0101, for it to be
in the public interest to preserve and conserve its pure water supplies and other natural resources,
and has declared to "be in the public interest to preserve, protect, conserve and enhance [its]
unique natural scenic beauty"; and
WHEREAS, the 2009 New York State Open Space Conservation Plan designates as
priority conservation projects the protection of Lake George's undeveloped shorelines, its
watershed, its viewshed and its natural communities; and
WHEREAS,the 2009 New York State Open Space Conservation Plan promotes the use
of conservation easements and other means to protect forest lands and other natural resources in
the Adirondack Mountains and elsewhere; and
WHEREAS, the Protected Property currently serves as an important watershed property
for Lake George, as it is situated near the southern shore of Lake George, and drains into a
stream that is a tributary of Lake George. The Protected Property harbors forested lands whose
conservation and preservation help protect the water quality of Lake George, since these lands
serve as "feeder water bodies" of Lake George; and
WHEREAS, Grantee has identified the Protected Property as one that is important to
protect and conserve due to its important ground and surface water resources, its open space
qualities, the scenic vistas that it is a part of, the impact that insensitive development of the
Protected Property would have on Lake George and the surrounding community, its forested
qualities, and its function as natural wildlife and plant habitat; and
WHEREAS, the Protected Property includes approximately feet of frontage on
Bloody Pond Road, is prominently visible from Lake George and from the top of French
Mountain, and is visually accessible to the public from other locations, thus providing a
significant public benefit as defined under Section 170(h)(4)(A) of the Code; and
WHEREAS, the Legislature of the State of New York has declared conservation,
preservation, and protection of its environmental assets and natural and man-made resources to
be the public policy of the State, and in furtherance thereof has enacted Article 49, Title 3, of the
ECL to provide for and encourage the limitation and restriction of development and use of real
property through conservation easements; and
WHEREAS, the Grantor intends that this Conservation Easement shall comply with the
provisions of Section 2031(c) of the Code relating to the federal estate tax treatment of lands
2
subject to a qualified conservation easement, and intends, by granting this Conservation
Easement to Grantee, for the Protected Property to qualify for the benefits of Section 2031(c) of
the Code upon the effective date of this Conservation Easement; and
WHEREAS, Grantor and Grantee desire to provide for the preservation and conservation
of the Protected Property in perpetuity, and desire to limit the uses of and activities on the
Protected Property to those that are compatible with the preservation and conservation goals set
forth herein; and
WHEREAS, as set forth in Section 10.6 below, the specific Conservation Values of the
Protected Property are documented in a Conservation Easement Baseline Documentation Report
(the "BDR"),prepared by Grantee and signed and acknowledged by Grantor and Grantee,
establishing the baseline condition of the Protected Property at the time of the conveyance of this
Conservation Easement. The BDR includes a written report, maps,photographs and other
documentation pertaining to the Protected Property; and
WHEREAS, Grantor has received independent legal and financial advice regarding this
Conservation Easement to the extent that Grantor has deemed necessary, and Grantor freely
signs this Conservation Easement in order to achieve its Conservation Purposes.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
ARTICLE ONE
PURPOSE OF CONSERVATION EASEMENT
It is the "Purpose" of this Conservation Easement to ensure that the Protected Property
will be retained forever predominantly in its natural, scenic, forested, and open space condition;
to protect plants, animals, natural communities, lands, the watershed, wetlands, and other water
resources on the Protected Property; and to prevent any use of the Protected Property that will
significantly impair or interfere with the Conservation Values or interests of the Protected
Property described in the Introduction above. Grantor intends that this Conservation Easement
will confine the use of the Protected Property to such activities as are consistent with the Purpose
of this Conservation Easement.
The prohibited acts and uses of the Protected Property as set forth in Article Four below,
and Grantor's reserved rights as set forth in Articles Five and Six below, are built around the
Purpose of this Conservation Easement and Grantor and Grantee's mutual goals and objectives
to continue the private use and enjoyment of the Protected Property while ensuring that the
Protected Property's important Conservation Values are protected and preserved in perpetuity.
The approach taken in this Conservation Easement is to articulate generally and broadly in
Article Four acts and uses of the Protected Property that could, without the conditions imposed
upon them hereunder, impair the Protected Property's important Conservation Values, and in
Article Fives and Six to designate where and to what extent certain uses and activities that would
not impair these important Conservation Values may be permitted.
ARTICLE TWO
GIFT
In consideration of the recited facts set forth above, and in consideration of the mutual
promises, undertakings, and forbearances contained in this Conservation Easement, Grantor, as
an absolute, unconditional gift, hereby grants, releases, demises and conveys to Grantee this
Conservation Easement over the Protected Property, it being Grantor's intent to encumber the
Protected Property in perpetuity with this Conservation Easement and to grant to Grantee all
rights necessary to enforce it. Grantee hereby accepts this Conservation Easement, agrees to
abide by its terms and conditions, and agrees to monitor and enforce its terms and conditions.
ARTICLE THREE
WARRANTIES
Grantor warrants and represents to Grantee that Grantor has good and sufficient fee title
ownership of the Protected Property, and that any mortgage or life estate encumbering the
Protected Property is subordinated to the terms and provisions of this Conservation Easement.
Grantor hereby promises to defend and indemnify Grantee against all claims that may be made
against the title hereto.
Grantee warrants and represents that it possesses the intent, ability, commitment, and
resources to enforce the terms and conditions of this Conservation Easement, and that the
Protected Property meets the criteria adopted by Grantee relating to the properties over which
Grantee should accept the responsibility of holding a conservation easement.
ARTICLE FOUR
PROHIBITED ACTS AND USES OF PROTECTED PROPERTY
Except as otherwise provided for and reserved to Grantor in Articles Five and Six of this
Conservation Easement, from and after the date of conveyance of this Conservation Easement,
the following acts, uses, and practices are prohibited on, over, or within the Protected Property.
4.1 Buildings and Improvements. The construction or placement of residential, commercial,
or industrial buildings or improvements of any kind or nature is prohibited (except pursuant to
Sections 5.6 and 7.5 below).
For the purposes of this Conservation Easement, the terms "building" and "improvement"
shall be defined as broadly as possible, and shall include the construction or placement of any
4
building, structure, facility, road, trail, device, edifice, or man-made development of any kind or
nature upon, above, or below the Protected Property, whether of a permanent or temporary
nature, including, but not limited to, houses, cabins, leantos, tent platforms, sheds, docks and
moorings in the adjacent waters, airstrips, pipes, wires or cables, gazebos, tennis courts, athletic
fields,portable buildings, swimming pools, basketball courts, cabanas,play equipment, stairs,
patios or decks, driveways,parking areas, gardens, ponds, wells, septic systems,porta-potties,
outhouses, drainage ways, utility lines, towers, windmills, dams, solar panels, fences, stone walls,
paths, carriage paths, walkways, trails, and signs.
For the purposes of this Conservation Easement, the terns "commercial use" or
"commercial activity" shall mean an activity or use that is generally undertaken with the
expectation of securing an economic benefit or for which money is charged or goods, services or
other compensation exchanged, whether or not the activity or use actually generates a profit.
4.2 Excavation and Removal of Materials; Mining. Excavating, dredging, ditching, filling,
draining, diking, mining, drilling, removal of topsoil, sand, gravel, rock, minerals or other
materials, and the building or alteration of roads or trails that cause, in the opinion of Grantee, a
material change in the topography of the land, are prohibited. Exploration for, or development,
storage and extraction of, minerals and hydrocarbons on, under, or from the Protected Property
by any method is prohibited.
4.3 Subdivision. The division, subdivision, or partitioning of the Protected Property is
prohibited. No part of the Protected Property may be sold separately from any other part.
Mortgages or other non-possessory interests in land do not constitute subdivisions for the
purposes of this Conservation Easement,provided that such interests encompass the whole
Protected Property.
Minor lot line adjustments to correct surveying deficiencies or inaccuracies may be made,
upon notice to Grantee, with Grantee's consent, pursuant to Section 5.3 and Article Nine hereof.
4.4 Dumping. The placing, filling, storing, dumping, or accumulation of trash, garbage,
sawdust, ashes, hazardous substances, toxic waste, chemical waste, petroleum products, vehicle
bodies or parts, rubbish, debris,junk, waste or other unsightly, offensive or environmentally
harmful materials is prohibited.
4.5 Signs. The display of signs, billboards and advertisements anywhere on the Protected
Property is prohibited, except that the erection, maintenance and replacement of signs with
respect to hunting, trespass, trail access, identity and address of the occupants, sale of the
property, the Grantee's interest in the property, and the protected Conservation Values are
permitted, upon notice to Grantee pursuant to Article Nine hereof.
4.6 Soil and Water. Any use of or activity on the Protected Property that causes, or in the
sole good faith opinion of Grantee is likely to cause, significant soil degradation or erosion or
significant pollution of any surface or subsurface waters is prohibited. Grantor shall not allow or
cause the pollution of any waterways located on or adjacent to the Protected Property by
sedimentation, siltation, run-off, or otherwise by any actions conducted on the Protected
5
Property.
4.7 Wetlands, Springs, and Other Water Bodies. The draining, filling, dredging or diking of
lakes,ponds, wetlands, streams, creeks and intermittent watercourses, and other water bodies
located on or contiguous to the Protected Property, including the construction of any seawalls or
ponds or the enlargement of any watercourse, is prohibited, except where such action is
necessary in the good faith opinion of Grantee and Grantor to protect, preserve or maintain the
Conservation Values of the Protected Property and such actions are approved by Grantee in
advance under Section 7.6 and Article Nine below.
4.8 Landscaping Activities. Landscaping activities are prohibited, except pursuant to a
Habitat Management Plan under Section 6.1 or a Forest Management Plan under Section 6.2.
4.9 Utilities. The creation or placement of overhead utility transmission lines, utility poles,
wires, pipes, wells, or drainage and septic systems is prohibited.
4.10 Uses. The use of the Protected Property for any residential, commercial (including
commercial recreational), industrial, or agricultural purpose is prohibited.
4.11 Drainage. The use of the Protected Property for a drainage basin, stormwater control
facility, leaching field, septic disposal field or sump is prohibited.
4.12 Development Rights. The use of the acreage of the Protected Property for purposes of
calculating lot yield on any property other than the Protected Property is prohibited. Grantor
hereby grants and donates to Grantee any and all development rights (and any further
development rights allocable to the Protected Property that may be created through a rezoning of
the Protected Property), that are not otherwise reserved hereunder by Grantor and those required
to carry out the permitted uses of and activities on the Protected Property as specified herein,
which development rights the parties agree are herewith terminated and extinguished by Grantee
and may therefore not be used or transferred by Grantee to any other party or properties.
4.13 Pesticides and Herbicides. The use of pesticides and biocides, including, but not limited
to insecticides, fungicides, rodenticides, and herbicides, is prohibited, except as may be
necessary pursuant to a Habitat Management Plan under Section 6.1 or a Forest Management
Plan under Section 6.2
4.14 Motorized Vehicles. The use of automobiles, trucks, and other motor vehicles,
snowmobiles, dune buggies, motorcycles, motorized bicycles (mopeds), all-terrain vehicles and
all other types of land-based motorized recreational vehicles, except for emergency vehicles, is
prohibited on the Protected Property. Automobiles, including trucks and jeeps, may not be used
for recreational purposes. Motorized vehicles may be used by Grantee, and by Grantor with
approval from Grantee pursuant to Article Nine below, for management purposes, as long as the
use, as determined in Grantee's sole discretion, does not diminish the Conservation Value of the
Protected Property.
4.15 Non-native Species. The introduction to the Protected Property of any species of plant,
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animal or other living thing that is not indigenous to the northeastern region of the United States
is prohibited.
4.16 Recreational Activities. Commercial recreational activities are prohibited on the
Protected Property, other than de minimus commercial activities which do not exceed the limit
set forth in Internal Revenue Code Section 2031(c)(8)(B). For allowed recreational activities,
see Section 5.5.
4.17 Other Uses. Any other use of or activity on the Protected Property which would permit
destruction of the Conservation Values of the Protected Property or of other significant
conservation interests is prohibited unless such use or activity is deemed necessary by Grantor
and Grantee for the protection of the Conservation Values that are the subject of this
Conservation Easement, in which case such use or activity shall be subject to notice to and
approval of Grantee as provided in Article Nine below.
ARTICLE FIVE
GRANTOR'S RESERVED RIGHTS AND RESPONSIBILITIES
In general, Grantor reserves: (i)those customary rights of ownership to the Protected
Property and those exclusive rights to possession of the Protected Property which are not
expressly prohibited herein and that are not inconsistent with the protection of the Conservation
Values of the Protected Property and the Purpose of this Conservation Easement, and (ii)the
right to engage in all acts and uses which are not expressly prohibited herein and that are not
inconsistent with the protection of the Conservation Values of the Protected Property and the
Purpose of this Conservation Easement.
5.1 Maintenance, Insurance, and Taxes. Grantor retains all responsibilities and shall bear all
costs and liabilities of any kind related to the ownership, operation, upkeep and maintenance of
the Protected Property, including the maintenance of adequate comprehensive general liability
insurance coverage.
(i) Grantor shall keep the Grantee's interest in the Protected Property free of any
liens arising out of any work performed for, materials furnished to, or obligations
incurred by Grantor.
(ii) Grantor shall pay any real estate taxes or other assessments levied on the
Protected Property. If the Grantor becomes delinquent in payment of said taxes or
assessments, such that a lien is or may be created, Grantee shall have, at its
option, after written notice to the Grantor, the right to pay such taxes or
assessments, including any interest and penalties due thereon, or to take such
other actions as may be necessary to protect the Grantee's interest in the Protected
Property and to assure the continued enforceability of this Conservation
Easement, and to recoup the costs of doing so from Grantor. That payment, if
made by Grantee, shall, to the extent permitted by law, become a lien on the
Protected Property of the same priority as the item if not paid would have
become, and until paid by Grantor shall bear interest at two (2)percentage points
over the prime rate of interest from time to time charged by Citibank,N.A., or its
corporate successor.
(iii) Grantor shall be solely responsible for the upkeep and maintenance of the Protected
Property,to the extent required by law. Grantee shall have no obligation for the
upkeep or maintenance of the Protected Property.
(iv) Grantor's use and occupancy of the Protected Property shall comply with all
applicable federal, state and local laws and regulations.
5.2 Grantor's Additional Rights. Grantor shall have the right to undertake or continue any
activity or use of the Protected Property not prohibited by this Conservation Easement.
Grantor shall have the right to sell, give,mortgage, lease, or otherwise convey the
Protected Property in its entirety provided that all such transactions are subject to the terms of
this Conservation Easement, that the instrument of conveyance complies with Section 10.11
hereof, and that advance written notice is provided to the Grantee in accordance with Article
Nine.
5.3 Boundary Line Adjustments. Notwithstanding the prohibition on subdivision set forth
above, portions of the Protected Property may be conveyed to abutters to the extent necessary to
resolve bona fide boundary disputes, which conveyances shall not constitute a subdivision for
purposes of this Conservation Easement, provided that: (i) any conveyance for the purpose of
resolving a bona fide boundary dispute shall require the approval of the Grantee, in accordance
with Section 7.6 and Article Nine below, which approval shall not be unreasonably withheld; and
(ii) any real property received by the Grantor to resolve a boundary dispute shall be merged into
the Protected Property and shall become subject to this Conservation Easement unless Grantee
agrees otherwise.
Notwithstanding the prohibition on subdivision set forth above, subject to the approval of
the Grantee in accordance with Section 7.6 and Article Nine below, which approval shall not be
unreasonably withheld, portions of the Protected Property may be merged with adjoining lots by
conveyance by the owner of the adjoining lot to the Grantor, and any such merger with an
adjoining lot shall not be deemed to create a separate parcel or lot. The real property acquired by
merger shall become part of the Protected Property and shall be subject to the terms of this
Conservation Easement.
5.4 Indemnification and Insurance by Grantee. Grantee agrees to release, hold harmless,
defend, and indemnify Grantor from any and all liabilities, including but not limited to injury,
losses, damages,judgments, costs, expenses, and fees that the Grantor may suffer or incur as a
result of or arising out of the activities of the Grantee on the Protected Property. Grantee shall
also maintain adequate comprehensive general liability insurance coverage for its activities on
the Protected Property.
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5.5 Recreational Activities. Notwithstanding Article Four above, Grantor retains the right to
use the Protected Property for otherwise lawful noncommercial non-motorized recreational
activities, including, but not limited to, hunting, fishing, hiking, walking, camping, bicycling
(non-motorized), snowshoeing, and cross-country skiing, provided that these activities do not
impair or interfere with the Purpose or Conservation Values of this Easement. Under no
circumstances shall athletic fields, golf courses, driving ranges, racing tracks or stunt courses for
vehicles, or other recreational structures or improvements that impair or interfere with the
Purpose or Conservation Values of this Easement, be allowed on the Protected Property.
5.6 Recreational and Educational Improvements. Notwithstanding Article Four above,
subject to the prior approval of the Grantee in accordance with Section 7.6 and Article Nine
below, trails or paths for hiking, walking, bicycling (non-motorized), snowshoeing, and cross-
country skiing, and an educational pavilion/outdoor classroom, educational signage, wooden
bridges, benches, kiosks, signs, and erosion control measures incidental thereto, may be
constructed and maintained by the Grantor on the Protected Property, provided that these
improvements do not impair or interfere with the Purpose or Conservation Values of this
Easement. Such trails shall include existing trails, if any, as indicated in the BDR. Trailheads,
parking areas, sanitary facilities (such as porta-potties) at parking areas, and other such
improvements related to such trails, paths, and the educational pavilion/outdoor classroom may
be located on the Protected Property. Specifically, Grantor shall also have the right, but not
obligation, to construct one parking area (as shown on the BDR) off of Bloody Pond Road,
subject to the prior approval of the Grantee in accordance with Section 7.6 and Article Nine
below.
ARTICLE SIX
VEGETATION REMOVAL AND FORESTRY ACTIVITIES
6.1 General Vegetation Removal. In accordance with a Habitat Management Plan prepared
by Grantee, or by Grantor with prior approval by Grantee, and pursuant to Section 7.6 and
Article Nine hereof, Grantor and Grantee shall have the right, but not the obligation,throughout
the Protected Property, to remove and replace trees, shrubs or other vegetation for the purpose of
managing habitat of the Protected Property. Such Habitat Management Plan must be prepared
and signed by a qualified forester in good standing (see definition in Section 6.2 below) or by a
person holding a degree in forest ecology or equivalent or by a person having credentials
mutually agreed upon Grantor and Grantee. In any case, the planting of trees, shrubs or plants
that are not indigenous to the northeastern region of the United States, is prohibited.
Grantee, or Grantor with prior approval by Grantee, shall have the right, but not the
obligation, to remove any invasive non-native species by mechanical, biological or chemical
means, following the guidelines of the Adirondack Park Invasive Plant Program or comparable
program. Notwithstanding any other language in this section, Grantor may cut down, but not
remove, dangerous trees, with prior notification to Grantee.
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6.2 Forestry Activities. Without prior approval from Grantee, Grantor may harvest five
standard cords of firewood annually for use on the Protected Property or any adjoining property
owned by Grantee, and, with prior approval from Grantee, may cut down, but not remove, trees
that are dangerous, so long as these forestry practices will not significantly impair the
Conservation Values of the Protected Property or the Purpose of this Conservation Easement.
With prior written approval from Grantee pursuant to Section 7.6 and Article Nine
hereof, Grantor may commercially harvest timber and other wood products and construct,
maintain, remove, and repair unpaved access roads and "staging areas" (those areas where logs
are temporarily stored for transport) necessary for such activities, in accordance with a Forest
Management Plan(FMP). At least one-hundred twenty (120) days prior to expected
commencement of timber harvesting, Grantor shall provide Grantee with a copy of the FMP,
which shall be reviewed and approved by the Grantee. In order to uphold the conservation
values of the Protected Property, Grantee, in its sole discretion, may require measures more
stringent than "Best Management Practices", including, but not limited to, restricting harvesting
to when the ground is frozen and expanding the no-disturbance zone around streams and other
water bodies. In addition to timber assessment, at a minimum the FMP should include
provisions for forestry health, recreation, protected species and wildlife habitat. The FMP must
be prepared and signed by, and its execution must be supervised by, a qualified forester in good
standing. A qualified forester is defined as a graduate of a four-year forestry education program
that is certified by the Society of American Foresters or such successor organization as is later
created, or a person who has attained other professional credentials mutually agreed to by
Grantee and Grantor.
ARTICLE SEVEN
GRANTEE'S RIGHTS AND OBLIGATIONS
To accomplish the Purpose of this Conservation Easement, the following rights are
conveyed to Grantee under this Conservation Easement:
7.1 General. The right to preserve and protect the Conservation Values of the Protected
Property and the Purpose of this Conservation Easement.
7.2 Right of Entry. The right to enter the Protected Property at all reasonable times with
twenty-four(24) hours prior notice to Grantor for the purposes of. (a) inspecting the Protected
Property to determine if the Grantor is complying with the covenants and Purpose of this
Conservation Easement; (b) enforcing the terms of this Conservation Easement; (c) taking any
and all actions with respect to the Protected Property as may be necessary or appropriate, with or
without order of court, to remedy or abate violations hereof, (d) making scientific and
educational observations and studies and taking samples in such a manner as will not disturb the
quiet enjoyment of the Protected Property by the Grantor; and (e) monitoring and management as
set forth in this Article Seven.
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7.3. Species Monitoring and Management. The right, but not the obligation, to monitor the
condition of any rare plant and animal populations, plant communities, and natural habitat on the
Protected Property, and to manage them, if necessary, to ensure their continued presence and
viability on the Protected Property, and to remove invasive species. Such activities shall be in
accordance with the customary management practices of Grantee, and any such management
activities shall be set forth in a written management plan prepared by Grantee in consultation
with Grantor, which may not be amended thereafter without consultation with Grantor.
7.4. Prevention and Restoration Rights. The right to prevent any activity on or use of the
Protected Property that is inconsistent with the Purpose of this Conservation Easement and to
require the restoration of such areas or features of the Protected Property that may be damaged
by any inconsistent activity or use.
7.5 Recreational and Educational Improvements. Notwithstanding Article Four above, the
right, but not the obligation, to construct or maintain trails or paths, for hiking, walking,
bicycling (non-motorized), snowshoeing, and cross-country skiing, and outdoor educational
classrooms, educational signage, wooden bridges, benches, kiosks, signs, and erosion control
measures incidental thereto, may be constructed and maintained on the Protected Property,
provided that these improvements do not impair or interfere with the Purpose or Conservation
Values of this Easement. Such trails shall include existing trails, if any, as indicated in the BDR.
Trailheads, parking areas, sanitary facilities (such as porta-potties) at parking areas, and other
such improvements related to such trails and paths may be located on the Protected Property.
Specifically, Grantee shall also have the right, but not obligation, to construct one parking area
(as shown on the BDR) off of Bloody Pond Road.
7.6 Consent. Grantee's consent for any activities requiring Grantee's consent under Article
Five or Article Six above, or elsewhere in this Conservation Easement, may be given under the
following conditions and circumstances, subject to the limitations set forth in this Section 7.6 and
the process and requirements set forth in Article Nine.
Such requests for permission, for activities requiring Grantee's consent under Articles
Five or Six above or elsewhere in this Conservation Easement, shall be made in writing pursuant
to Article Nine below and shall describe the proposed activity in sufficient detail to allow
Grantee to judge the consistency of the proposed activity with the terms and Purpose of this
Conservation Easement. Grantee may give its permission only if it determines, in its sole
discretion,that such activities: (1) do not violate the terms and Purpose of this Conservation
Easement and (2) either enhance or do not impair any significant Conservation Values associated
with the Protected Property.
Notwithstanding the foregoing, the Grantor shall have no right to request consent for, and
Grantee have no right or power to agree to, any activities that would result in the termination of
this Conservation Easement, adversely affect the qualification of this Conservation Easement or
the status of Grantee under any applicable federal or state laws, including Section 170(h) or
Section 2031(c) of the Code, or Article 49 Title 3 of the ECL, or that would constitute an
"impermissible private benefit" or a"private inurement", as defined in the regulations
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implementing Section 501(c)(3) of the Code. Nor may Grantee consent to any subdivision of the
Protected Property, or any residential, commercial or industrial buildings or improvements, or
any residential, commercial or industrial activities not expressly provided for in this
Conservation Easement.
7.7 Hold Harmless By Grantor. Grantor shall hold harmless, indemnify and defend Grantee,
and its members, directors, officers, employees, agents and contractors, and the heirs, successors
and assigns of each of them (hereinafter referred to collectively as the"Indemnified Parties"),
from and against all liabilities, injuries, penalties, costs, losses, damages, expenses, causes of
action, claims, demands or judgments, including attorneys' fees, arising from or in any way
connected with: (a) injury to or death of any person, physical damage to any property, resulting
from any act, omission, condition or other matter related to or occurring on or about the
Protected Property, regardless of cause, unless due solely to the gross negligence or willful
misconduct of any of the Indemnified Parties; (b) any release of hazardous substances on the
Protected Property or any violation of federal, state or local law; (c) the obligations specified in
the section hereof entitled "Maintenance, Insurance, and Taxes"; and (d) the existence or
administration of this Conservation Easement, including any actions taken by Grantee pursuant
to the section hereof entitled "Grantee's Remedies", and including Grantee being made a party to
any court action by reason of it holding this Conservation Easement.
7.8 Lien for Sums Due Grantee. If any sum is due to Grantee pursuant to the provisions of this
Conservation Easement, then Grantee shall have, and is hereby given as security for such sum
due it, a valid and enforceable lien upon the Protected Property, and Grantee shall have the right
to foreclose its lien in the manner provided by law, it being understood and agreed that Grantee's
lien shall be superior to any other lien or encumbrance on the Protected Property created or
arising after the date of this Conservation Easement, except that any such lien of Grantee is and
shall be subject and subordinate to the lien of any mortgages hereafter encumbering the Protected
Property. Any such lien, until paid by Grantor, shall bear interest at two (2) percentage points
over the prime rate of interest from time to time charged by Citibank,N.A., or its corporate
successor.
ARTICLE EIGHT
PUBLIC ACCESS
The public shall have the right to enter upon and use the Protected Property, or any
portion thereof, for any uses allowed under Section 5.5 of this Conservation Easement.
ARTICLE NINE
NOTICE AND APPROVAL
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9.1 Grantee's Approval.•oval. When Grantee's approval.for any action on the Protected Property is
required by this Conservation Easement, Grantee shall give notice of its granting or withholding
of its approval in writing to Grantor within thirty (30) days of Grantee's receipt of Grantor's
written request therefor and any supplemental information reasonably requested by Grantee.
Grantor's request shall include information identifying the proposed activity and the reasons for
the proposed activity with reasonable specificity. The request for approval shall describe the
nature, scope, location, timetable and any other material aspect of the proposed activity in
sufficient detail to permit Grantee to evaluate such activity. The request shall also include
information evidencing the conformity of such activity with the requirements of the applicable
paragraphs of this Conservation Easement under which approval is requested. In reviewing such
requests, Grantee shall also consider the requirements of Section 7.6 above. Grantee agrees to
evaluate Grantor's requests under this Conservation Easement based on its good faith exercise of
professional judgment. In the case of Grantee's withholding of its 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 send a response to Grantor within such thirty (30) days shall entitle
Grantor to resubmit Grantor's written request for approval. Any resubmission shall include
written notification to Grantee that the request for approval is a resubmission of the prior request
for approval. Failure of Grantee to send a written response to Grantor within ten (10) days of
Grantee's receipt of the resubmission of Grantor's request for approval shall be deemed to
constitute written approval by Grantee of any request submitted for approval that is not contrary
to the express restrictions hereof.
9.2 Notice. Any notices sent pursuant to this Conservation Easement shall be sent by personal
delivery, by an overnight delivery service which provides verification of delivery, or by
registered or certified mail to the following addresses or such addresses as may be hereafter
specified by notice in writing:
Grantor: Town of
With a copy to:
Grantee: Lake George Land Conservancy, Inc.
P.O. Box 1250
4905 Lake Shore Drive
Bolton Landing, New York 12814
With a copy to: Braymer Law, PLLC
PO Box 2369
Glens Falls,NY 12801
Unless otherwise provided herein, any such notice shall be effective as of the date of its
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sending. If any new Grantor of the Protected Property fails to provide Grantee with an address
for such notice, Grantee may send any such notice to said Grantor's address which is on file with
the Assessor of the Town in which the Protected Property is located.
ARTICLE TEN
MISCELLANEOUS
10.1 Grantor's Title. The Grantor covenants and represents that, at the time of the conveyance
of this Conservation Easement, the Grantor is the sole owner and is seized of the Protected
Property in fee simple and has good right to grant and convey this Conservation Easement; that
the Protected Property is free and clear of any and all encumbrances except those of record as of
the date hereof, and that the Grantee shall have the use of and enjoy all of the benefits derived
from and arising out of this Conservation Easement. All future mortgages encumbering the
Protected Property or any portion thereof shall be subject and subordinate to this Conservation
Easement.
In addition to the land described on page 1 of this Conservation Easement and in Exhibits
A and B hereto, the Protected Property includes all of Grantor's right,title, and interest, if any, in
and to: (a) any land lying within or under any public road or street adjoining the Protected
Property, subject to the rights of the public and the government, if any, to use and maintain such
roads or streets; (b) any land, including land under water, below the mean high water mark of
any lake,pond, river, or stream adjoining the Protected Property, subject to the public's rights, if
any, of navigation on any such lake, river, or stream that is navigable in law or fact; and (c) any
land which may be added to the Protected Property by accretion.
10.2 Grantee's Remedies. Grantor acknowledges and agrees that Grantee's remedies at law
for any violations of this Conservation Easement are inadequate. Therefore, in addition to, and
not in limitation of, any other rights of Grantee hereunder at law or in equity, in the event any
breach, default or violation of any term,provision, covenant or obligation on Grantor's part to be
observed or performed pursuant to this Conservation Easement is not cured by Grantor within
fifteen (15) days of, or within a reasonable time after, notice thereof by Grantee to Grantor
(which notice requirement is expressly waived by Grantor with respect to any breach, default or
violation which, in Grantee's reasonable judgment that irreversible harm will occur, which
requires immediate action to preserve and protect any of the open space values of the Property or
the Purpose of this Conservation Easement, as defined in Article One hereof), Grantee shall have
the right, at Grantee's election:
(i) to institute a suit to enjoin or cure such breach, default or violation by temporary
and/or permanent injunction, and, if deemed necessary by Grantee, to enjoin such
non-compliance by an ex parte temporary restraining order,
(ii) when necessary to prevent irreversible harm to the Conservation Values of the
Protected Property and the Purpose of this Conservation Easement, as defined in
Article One, or in the event that a court of competent jurisdiction orders Grantor
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to undertake any action on the Protected Property and Grantor fails to do so, to
enter upon the Protected Property and exercise reasonable efforts to terminate or
cure such breach, default or violation and/or cause the restoration of that portion
of the Protected Property affected by such breach, default or violation to the
condition that existed prior thereto; or
(iii) to seek or enforce such other legal and/or equitable relief or remedies as Grantee
deems necessary or desirable to ensure compliance with the terms, conditions,
covenants, obligations and Purpose of this Conservation Easement; provided,
however, that any failure, delay or election to so act by Grantee shall not be
deemed to be a waiver or a forfeiture of any right or available remedy on
Grantee's part with respect to such breach, default, or violation or with respect to
any other breach, default, or violation of any term, condition, covenant or
obligations under this Conservation Easement.
If such court determines that the Grantor has failed to comply with this Conservation
Easement, Grantor shall reimburse Grantee for any reasonable costs of restoration incurred by
Grantee. Any damages, when recovered, may be applied by Grantee, in its sole discretion, to
corrective action on the Protected Property.
If such court determines that a violation of this Conservation Easement has occurred,
Grantor shall pay, either directly or by reimbursement to Grantee, all reasonable attorney's fees,
court costs and other expenses incurred by Grantee in connection with any proceedings under
this section, together with any costs incurred by Grantee in restoring damage to the Protected
Property and its Conservation Values.
103 Emergency Enforcement. If Grantee, in its sole discretion, determines that circumstances
require immediate action to prevent or mitigate significant damage to the Conservation Values of
the Protected Property, Grantee may pursue its remedies under Section 10.2 without prior notice
to Grantor or without waiting for the period for cure to expire. In such a case, Grantee shall
provide Grantor with notice as soon as reasonably possible after taking such action.
10.4. Failure to Act or Delay. Grantee will not waive or forfeit the right to take any action as
may be necessary to ensure compliance with this Conservation Easement by any failure to act or
delay in acting, and Grantor hereby waives any defenses of estoppel or laches with respect to any
delay by the Grantee, its successors or assigns, in acting to enforce any restriction or exercise any
of its rights under this Conservation Easement.
10.5 Violations Due to Causes Beyond Grantor's Control. Nothing herein shall be construed to
entitle the Grantee to institute any enforcement proceedings against the Grantor for any changes
to the Protected Property due to causes beyond the Grantor's control, such as changes caused by
fire, flood, storm, earthquake or the unauthorized wrongful acts of third persons. In the event of a
violation of this Conservation Easement caused by the unauthorized wrongful act of a third
person, Grantor hereby appoints Grantee its attorney-in-fact for the purposes of pursuing
enforcement action, and, at Grantee's option, Grantor agrees to assign its right of action to
Grantee, or to join in any such suit.
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10.6 Existing Conditions; Baseline Data Report. By its execution of this Conservation
Easement, Grantee acknowledges that the present condition, uses and structures and
improvements of the Protected Property are compatible with the Purpose, terms and conditions
of this Conservation Easement. In order to evidence the present condition of the Protected
Property so as to facilitate future monitoring and enforcement of this Conservation Easement, the
BDR, describing such condition at the date hereof, has been prepared and subscribed by both
parties, and copies thereof will be kept on file with Grantee and Grantor. Notwithstanding the
foregoing, Grantor and Grantee may use information other than that found in the BDR to
evidence the present condition of the Property.
10.7 Successors. The covenants, terms, conditions and restrictions of this Conservation
Easement shall be binding upon and inure to the benefit of the parties hereto and their respective
personal representatives, heirs, successors, and assigns and shall continue as a servitude running
in perpetuity with the Protected Property,provided that (i) a person who has not, or an entity
which has not, caused a violation of this Conservation Easement to occur on such person's or
entity's land after that person or entity ceases to be an owner or to have any interest therein shall
not be deemed responsible for such violation; and (ii) a person who has not, or an entity which
has not, caused a violation of this Conservation Easement to occur on another person's or
entity's land which is a part of the Property shall not be deemed responsible for such violation.
The term "Grantor" shall include the Grantor and the Grantor's heirs, executors,
administrators, successors and assigns and shall also mean the masculine, feminine, corporate,
singular or plural form of the word as needed in the context of its use. The term "Grantee" shall
include Lake George Land Conservancy, Inc. and its successors and assigns.
10.8 Alienability. Grantor reserves the right to convey all or any part of its remaining interest in
the Protected Property, but only in accordance with, and subject to the terms and conditions of,
this Conservation Easement. Grantor shall promptly notify Grantee of any conveyance of any
interest in the Protected Property, including the full name, mailing address and telephone number
of any transferee, and the individual principals thereof, under any such conveyance.
10.9 Termination of Rights and Obligations. A party's rights and obligations under this
Conservation Easement shall terminate upon transfer of such party's interest in this Conservation
Easement or the Protected Property, except that liability for acts or omissions occurring prior to
transfer shall survive transfer.
10.10 Grantee's Assignment Rights. The parties hereto recognize and agree that the benefits of
this Conservation Easement are in gross and assignable, and the Grantee hereby covenants and
agrees that in the event it transfers or assigns this Conservation Easement it holds under this
indenture, the organization receiving the interest will be a"qualified organization" as that term is
defined in Section 170(h)(3) of the Code, and will be qualified to hold interests in conservation
easements under Article 49, Title 3 of the ECL. Grantee further covenants and agrees that the
terms of the transfer or assignment will be such that the transferee or assignee will be required to
continue to carry out in perpetuity the Conservation Purposes which the contribution was
originally intended to advance.
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10.11 Encumbrance by Conservation Easement. Any subsequent conveyance of the Protected
Property, including, without limitation, any transfer, lease or mortgage, shall be subject to this
Conservation Easement, and any deed or other instrument evidencing or effecting such
conveyance shall contain language substantially as follows:
"This [conveyance, lease, mortgage, easement, etc.] is subject to a Conservation
Easement which runs with the land and which was granted to Lake George Land
Conservancy, Inc. by instrument dated XXXX, 2018, and recorded on XXXX, 2018, in
the Office of the Clerk of Warren County in Book XXX at Page XXX."
The failure to include such language in any deed or instrument shall not affect the validity or
applicability of this Conservation Easement to such property.
10.12 Perpetual Nature of Conservation Easement. This Conservation Easement shall be of
perpetual duration, and no merger of title, estate or interest shall be deemed effected by any
previous, contemporaneous, or subsequent deed, grant, or assignment of an interest or estate in
the Protected Property, or any portion thereof, to Grantee, it being the express intent of the
parties that this Conservation Easement not be extinguished by, or merged into, any other interest
or estate in the Protected Property now or hereafter held by Grantee, including that Grantor and
Grantee agree and intend that the terms of this Conservation Easement shall survive any merger
of the fee title and conservation easement interest in the Protected Property or any portion
thereof. Furthermore, the fact that any use of the Protected Property that is expressly prohibited
by the terms of this Conservation Easement may become greatly more economically valuable
than uses permitted by the terms of the Conservation Easement, or that neighboring properties
may, in the future, be put entirely to uses that are not permitted by this Conservation Easement,
has been considered by Grantor in'granting this Conservation Easement and by Grantee in
accepting it. Grantor believes that any such changes in the use of neighboring properties will
increase the benefit to the public of the continuation of this Conservation Easement, and Grantor
and Grantee intend that any such changes shall not be deemed to be circumstances justifying the
termination or extinguishment of this Conservation Easement. In addition, the inability of
Grantor, Grantor's successors and assigns, to conduct or implement any or all of the uses
permitted under the terms of this Conservation Easement, or the unprofitability of doing so, shall
not impair the validity of this Conservation Easement or be considered grounds for its
termination or extinguishment.
10.13 Extinguishment. The Grantor hereby agrees that at the time of the conveyance of this
Conservation Easement to the Grantee, this Conservation Easement gives rise to a real property
right, immediately vested in the Grantee, with a fair market value of said Conservation Easement
as of the date of the conveyance that is at least equal to the proportionate value that this
Conservation Easement at the time of the conveyance bears to the fair market value of the
property as a whole at that time. That proportionate value of the Grantee's property rights shall
remain constant. When a change in conditions takes place which makes impossible or
impractical any continued protection of the Protected Property for Conservation Purposes, and
the restrictions contained herein are extinguished by judicial proceeding,the Grantee, upon a
subsequent sale, exchange or involuntary conversion of the Protected Property, shall be entitled
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to a portion of the proceeds at least equal to that proportionate value of the Conservation
Easement. The Grantee shall use its share of the proceeds in a manner consistent with the
Conservation Purposes set forth herein or for the protection of a"relatively natural habitat of
fish, wildlife, or plants or similar ecosystem," as that phrase is used in and defined under Section
170(h)(4)(A)(ii) of the Code.
10.14 Eminent Domain. Whenever all or part of the Protected Property is taken by the
exercise of the power of eminent domain by any public, corporate, or other authority so as to
abrogate the restrictions imposed by this Conservation Easement, the Grantor and the Grantee
shall join in appropriate actions at the time of such taking to recover the full value of the taking
and all incidental or direct damages resulting from the taking, which proceeds shall be divided in
accordance with the proportionate value of the Grantee's and Grantor's interests, and Grantee's
proceeds shall be used as specified above. All expenses incurred by the Grantor and the Grantee
in such action shall be paid out of the recovered proceeds.
10.15 Amendment. This Conservation Easement maybe amended only upon the written consent
of Grantee and the then current Grantor of the Protected Property. Grantee, on a case-by-case basis,
may agree to amend individual provisions hereof,provided,however,that any amendment must
comply with the Grantee's then-current amendment policy as in effect from time to time. No
amendment shall be approved unless Grantor has demonstrated,to Grantee's satisfaction,that the
proposed amendment is consistent with the Purpose of this Conservation Easement,will not
substantially diminish or impair the Conservation Values of the Protected Property,and will not
affect the perpetual duration of this Conservation Easement.
Any amendment to this Conservation Easement shall be at the discretion of the Grantee
(which may establish such requirements for the submission of plans and other documentation as it
deems necessary to make the determination required or permitted of it hereunder) and shall comply
with Article 49, Title 3, of the ECL, and Section 170(h) of the Code. Any such amendment that
does not comply with said Article 49 or said Section 170(h) shall be void and of no force or effect.
No such amendment shall result in a private inurement or impermissible private benefit in
violation of the Code.
Grantor shall reimburse Grantee for all costs, fees and other expenses, including staff
time, surveys, title costs, and reasonable attorneys' fees, incurred by Grantee in connection with
the review of a request by Grantor to amend this Conservation Easement. Any amendment shall
be recorded in the Office of the Warren County Clerk at Grantor's expense.
10.16 Severability. If any provision of this Conservation Easement or the application thereof to
any person or circumstance is found to be invalid by a court of competent jurisdiction, the
remainder of the provisions of this Conservation Easement and the application of such provisions
to persons or circumstances other than those as to which it is found to be invalid shall not be
affected thereby.
10.17 Re-recording. The Grantee is authorized to record or file any notices or instruments
appropriate to assuring the perpetual enforceability of this Conservation Easement; for such
purpose, the Grantor appoints the Grantee its attorney-in-fact to execute, acknowledge and
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deliver any necessary instrument on its behalf. Without limiting the foregoing, the Grantor
agrees to execute any such instruments upon request.
10.18 Ca Lions. The captions herein have been inserted solely for convenience of reference and
are not a part of this Conservation Easement and shall have no effect upon construction or
interpretation.
10.19 Interpretation. This instrument is intended to create a"qualified real property interest"
for"Conservation Purposes," as defined in Section 170(h) of the Internal Revenue Code, and
shall be interpreted consistently with such intention. In the event any provision has been omitted
from this instrument necessary to qualify the interest hereby granted as such a"qualified real
property interest"for"Conservation Purposes," such provision shall be deemed incorporated
herein to the extent necessary to cause the interest hereby granted to be so qualified.
If any provision of this Conservation 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 interpretations as would render it valid and be consistent with the Purpose of this
Conservation Easement.
Any rule of strict construction designed to limit the breadth of the restrictions on use of
the Protected Property shall not apply in the construction or interpretation of this Conservation
Easement, and this Conservation Easement shall be interpreted broadly to effect the Purpose of
this Conservation Easement as intended by the parties. The parties intend that this Conservation
Easement, which is by nature and character primarily negative in that Grantor has restricted and
limited Grantor's right to use the Protected Property, except as recited herein, be construed at all
times and by all parties to effectuate its Purpose.
10.20 Additional Rules of Interpretation. The following additional rules shall govern the
interpretation of this Conservation Easement:
(i) a reference to any law shall include any amendment or modification to such law,
or any law superseding such law;
(ii) the terms "hereby", "hereof', "herein", "hereunder" and any similar terms as used
in this document refer to the entire document, and the term "heretofore" shall
mean before, and the word"hereafter" shall mean after,the date of the execution
and delivery of this document;
(iii) the terms "include", "includes" and "including" are not limiting;
(iv) words of masculine gender shall mean and include correlative words of feminine
and neuter genders, and words importing the singular number shall mean and
include the plural number, and vice versa;
(v) words importing persons shall include firms, associations, partnerships, trusts,
corporations and all other legal entities, including public bodies, as well as natural
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persons; and
(vi) a reference to any person shall include the person's successors and assigns.
10.21 Controlling Law and Venue. The interpretation and performance of this Conservation
Easement shall be governed by, and construed in accordance with, the laws of the State of New
York. Any legal action regarding this Conservation Easement shall be venued in Warren
County, New York.
10.22 Counterparts. The parties may execute this instrument in two or more counterparts, which
shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original
instrument as against any party who has signed it. In the event of any disparity between the
counterparts produced, the recorded counterpart shall be controlling.
10.23 Entire Agreement. This instrument sets forth the entire agreement of the parties with
respect to this Conservation Easement and supersedes all prior discussions, negotiations,
understandings and agreements relating to this Conservation Easement, all of which are merged
herein. No alteration or variation of this instrument shall be valid or binding unless contained in
an amendment that complies with Section 10.15.
IN WITNESS WHEREOF, the parties have executed this document the day and year first
written above.
GRANTOR:
TOWN OF
By:
Its: Supervisor
Hereunto Duly Authorized
GRANTEE:
LAKE GEORGE LAND CONSERVANCY, INC.
By: Jamie Brown
Its: Executive Director
Hereunto Duly Authorized
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State of New York }
County of ) ss.
On the day of in the year 2018 before me, the undersigned, personally
appeared , 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), and that
by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
Notary Public
State of New York )
County of ) ss.
On the day of in the year 2018 before me, the undersigned, personally
appeared JAMIE BROWN, 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), and that
by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
Notary Public
Record and Return to:
Braymer Law, PLLC
PO Box 2369
Glens Falls,NY 12801
Exhibit"A"—Legal Description of Protected Property
Exhibit`B"— Survey Map of Protected Property dated xx/xx/2018
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