C ONSERVATION EASEMENT
For Use With a Not-For-Profit Corporation
This DEED OF CONSERVATION EASEMENT made this day of
, 20 ,
WITNESSETH:
WHEREAS , the TOWN OF , with administrative offices at
, , New York, hereinafter called
“Grantor,” is the owner in fee simple of
_____________________________________________________________________
_____________________________________________________________________
[Give brief desciption and address of property]
and hereinafter in this Conservation Easement called the “Protected Property,” which has
ecological, scientific, educational, recreational and aesthetic value in its present state as a
mostly natural area which has not been subject to significant development or recent
exploitation, which property is more particularly described in Exhibit A attached hereto
and incorporated by this reference.
WHEREAS , ., hereinafter
called “Grantee,” is a non-profit corporation incorporated under the laws of the State of
New York and as a tax exempt public charity under section 501(c)(3) and 509(a)(1) and
170(h) of the Internal Revenue Code to receive qualified conservation contributions, and
having its headquarters at
whose purpose is to
preserve natural areas for scientific, charitable, educational, public benefit, and aesthetic
purposes; and
WHEREAS , preservation of the Protected Property is pursuant to state and local
governmental conservation policy and will yield a significant public benefit, specifically in
support of New York State’s 1994 Open Space Plan, the Town of
Community Plan of 1975, updated in 1987 and for North in 1994,
and the Open Space Acquisition Plan of 1988; and
WHEREAS , more specifically the preservation of the Protected Property as a natural open
space area is pursuant to a resolution adopted by on ,
20 , in keeping with the desires of the people of the Town of
to preserve and maintain some open space lands within the
Town, including working farmland and natural lands, in addition to more developed park
lands which already exist within said Town; and
WHEREAS , the Protected Property is a significant natural area which qualifies as a
“...relatively natural habitat of fish, wildlife, or plants, or similar ecosystem,” as that phrase
is used in P.L. 96- 30 541, 26 USC 170(h)(4)(A)(ii), as may be amended from time to time,
and in regulations promulgated thereunder; specifically the Protected Property consists of a
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series of natural communities existing as a mosaic of wetlands and moist uplands, mostly
mature shrublands and younger forest, providing habitat for migratory songbirds and other
birds, particularly effective because of its location close to the Niagara River, and a variety
of mammals, reptiles, and amphibians; and supporting a variety of herbaceous and woody
plants including shagbark hickory, bitternut hickory, American beech, sugar, red, and
silver maple, basswood, black cherry, yellow birch, black, white, and green ash, red oak,
white oak, bur oak, pin oak, American elm, slippery elm, Eastern cottonwood, black
willow, quaking aspen, spicebush, and other trees and shrubs, potentially including
shellbark hickory (rated rare in New York State);
WHEREAS , the Protected Property possesses open space, scenic, wetlands, and natural
habitat values (collectively, “Conservation Values”) of significance to Grantor and the
Grantee, the people of the Town of in Erie County, and the
people of the State of New York; and
WHEREAS, the Protected Property is expected to remain in its natural condition with
minimal human modifications except for those necessary to protect public health and
welfare, and any trails and similar means of access developed to direct and control human
use of and travel through the Protected Property for recreation purposes; and
WHEREAS , preservation of the Protected Property provides land areas for outdoor
recreation by, and the education of, the general public, including but not confined to such
activities as hiking, birdwatching, nature photography, plant and wildlife observation, and
ecosystem studies (collectively, "Recreation Values"); and
WHEREAS , the Protected Property provides significant benefit as a place where natural
ecological communities can exist and develop, even though the specific communities may
change through the coming years; and
WHEREAS , the Protected Property as a large open space, natural area can be expected to
provide many other significant benefits to the people of the Town of
for now and in the years to come, such as passive recreation in a
reasonably natural setting, nutrient cycling, and water regulation; and
WHEREAS , Grantor and Grantee have the common purpose of conserving the above-
described Conservation Values of the Protected Property in perpetuity; and
WHEREAS , it is the intention of the Grantor to develop and periodically update a
Management Plan for the Protected Property which will describe and prescribe the
Grantor's detailed plans consistent with the purpose and reserved rights and restrictions of
this Conservation Easement; and
WHEREAS , the State of New York has authorized the creation of Conservation Easements
pursuant to Environmental Conservation Law 49-0301-0311 and Grantor and Grantee wish
to avail themselves of the provisions of that law;
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1. Purpose.
It is the purpose of this Conservation Easement to assure that the Protected Property will
be retained forever in its predominantly un-built and natural open space condition: to
provide a place where the climax and successional forest and other native ecological
communities can continue to recover and grow predominantly unhampered and unaltered
by direct human activities; to provide a natural setting for educational and passive
recreational opportunities for the general public; and to prevent any use of the Protected
Property that will interfere with the Conservation Values and Recreation Values of the
Protected Property as described above. Furthermore, to accomplish and maintain a balance
between protecting the natural character of the Protected Property with the inevitable
disturbances which will result from direct use of the Protected Property by the general
public as referenced above, and including to minimize such disturbances, it is the purpose
and intent of this Conservation Easement to provide a set of principles and a framework for
defining limits for the use of this Protected Property, within which more specific, relatively
short-term plans for projects, activities, and others uses and impacts will be formulated
according to and embodied in a periodically reviewed and revised Management Plan.
Finally, 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 and as are allowed and not prohibited below.
2. Restricted Uses. Any non-emergency activity on or use of the Protected Property
inconsistent with the purpose of this Conservation Easement is prohibited. Without
limiting the generality of the foregoing, the following activities and uses are expressly
prohibited except as noted and/or as provided for in paragraph 3 below:
2.1 Management Plan. Specific uses of, and activities on, the Protected Property shall be
governed by standards, specific procedures and directives, and other guidance set forth in a
Management Plan for the Protected Property. The first version of said Management Plan
shall be written and implemented within two (2) years after the date of this grant. Failure to
complete and implement the Management Plan within the specified period shall in no way
restrict, impair, invalidate, or terminate the Conservation Easement or alter the purposes
for which said Conservation Easement is established. If the Management Plan is not
completed within two (2) years, Grantor may request that Grantee prepare a brief Interim
Management Plan which shall serve as the (official) Management Plan until such time as
the formal Management Plan is completed and approved by the
Town Board. Said Interim Management Plan shall be limited to those management
activities and functions agreed upon jointly by the Grantor and the Grantee to allow for the
continued natural succession of ecological communities on the Protected Property to the
greatest extent possible and to provide for the necessary monitoring by Grante e. The terms
of this and all subsequent versions of said Management Plan must be consistent with the
Purpose of this Conservation Easement, and must not violate the terms and conditions of
said Conservation Easement. Furthermore, all activities on and uses of the Protected
Property must be provided for by specific sections or provisions of said Management Plan.
(a) Prohibited Uses. Not withstanding any other prohibited uses described elsewhere in
this Conservation Easement, the following uses are specifically prohibited by this
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Conservation Easement in accordance with actions of the Grantor in its Resolution of
July 19, 1999:
i. Human health care institutions providing in-patient care,
ii. Airports,
iii. Churches, synagogues or any other place of public worship,
iv. Public and private schools,
v. Public utility stations and exchanges,
vi. Other civic uses, including museums, libraries, senior centers, youth centers, places for
public assembly, fraternal organizations, private clubs and civic associations,
vii. 1-2.1.13 The following recreational uses, whether publicly or privately owned:
1. golf courses and country clubs,
2. tennis, racquet and handball facilities,
3. basketball, baseball and football facilities,
4. swimming facilities,
5. ice-skating facilities,
viii. Day-care centers
ix. Accessory structures and uses,
x. Uses and structures customarily instrumental to the above,
xi. Private and parochial schools and day-care centers, accredited when required by New
York State, when accessory to a church or synagogue or other place of public worship,
xii. Residences for custodians or staff.
(b) Review, Additions, and Revisions. The Management Plan shall be updated and
approved by the Grantor at least once every twenty (20) years, starting from the date when
the aforementioned Management Plan is first put into effect. The Plan, however, may be
updated and approved more frequently. Failure to review or update the Management Plan
shall in no way restrict, impair, invalidate, terminate or nullify this Conservation Easement
or alter the purposes for which it is established.
(c) Parties Involved. At a minimum, the periodic review of, and any additions and
revisions made to, the Management Plan shall be undertaken jointly, at least by notice in
accordance with Paragraph 4.6, by representatives of both Grantor and Grantee.
2.2 General Disturbances. General disturbances and manipulations by or on behalf of
Grantor or Grantee on the Protected Property shall be kept to a minimum, and in any case
shall not be effected [during any one hundred (100)-year period] on more than fifteen
(15%) percent of the total Protected Property area. For purposes of this calculation, the
allowed disturbance is based on the percentage of the total area of all parcels formally
designated as or any successor designation. Disturbances or
manipulations, either performed or specifically planned, in conjunction with obligations
and agreements in effect at the time of this grant, such as the contract specified in
Paragraph 3.6 and the existing gas pipeline right-of-way will not be included in the
measured or calculated area of the Grantor's disturbance. Included in the permissible
fifteen percent figure are periodic disturbances associated with construction and
maintenance of roadways, ditches, and trails as outlined in Paragraphs 3.1b, 3.1c, and 3.4,
respectively; wetland impact mitigation by the Grantor as described in Paragraph 3.6, or
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other ground disturbing habitat enhancement or restoration projects proposed and planned
in conjunction with the Management Plan in effect at the time. Excluded from said fifteen
percent limit are permitted activities associated with the contract obligation referenced in
Paragraph 3.6, disturbances made in conjunction with officially declared emergencies such
as a large fire, and habitat restoration efforts following certain large-scale disasters as
specified in Paragraphs 2.5 and 3. For the purpose of this Conservation Easement, mowing,
clipping, brush management and other vegetation management practices on currently open
or early successional shrub areas are notconsidered disturbances or manipulations provided
such practices are prescribed in the Management Plan. Disturbances related to Eminent
Domain actions or condemnation do not count in the total percentage of disturbance.
2.3 Structures. There shall be no construction or placement of any building or buildings
inconsistent with the Management Plan and the general limitation on total area of
permitted disturbance. Certain structures or facilities are specifically prohibited without the
mutual consent of the Grantor and the Grantee including: fences or signs (other than those
required for appropriate identification and management of the Protected Property under the
Management Plan); asphalt or concrete pavement (except as required and specified by
Paragraph 3.1b); antennae, utility poles, towers, conduit, below or above ground natural
gas and other utility lines and pipelines (except those present under agreements in effect at
the time of this grant), high intensity lighting more than 200 feet from the public roads
surrounding the Protected Property, or any other temporary or permanent structure or
facility on or above the premise s; excepting a small, rustic educational building and an
associated parking lot of appropriate size for said building, if necessary; and excepting
small parking lots associated with trail heads, the total area of said parking lots not to
exceed five (5) acre s.
2.4 Soil and Mineral Alterations. There shall be no additional ditching, draining, diking,
filling, excavating, dredging, mining or drilling, removal of topsoil, sand, gravel, rock,
minerals or other materials, nor any building of roads or changes in the topography of the
land in any manner except as necessary for roadway, existing ditch, and trail development
and maintenance consistent with the Management Plan and as provided for in Paragraphs
3.1b, 3.1c, and 3.4; and except as necessary and allowed by Paragraphs 2.2, 3.6 and 3.7.
2.5 Biota (Alterations). There shall be no removal, destruction or cutting of native trees,
shrubs or other plants, planting of non-native trees, shrubs or other plants; use of
fertilizers; introduction of non-native animals; grazing or browsing of domestic animals, or
any grazing or browsing by herds of native species kept on the land for that purpose; or
disturbance or change in the natural habitat in any manner except as necessary for
protection of trails as provided for in Grantor’s Reserved Rights section 3.4 and for the
maintenance of drainage and vegetation as provided in Section 2.2, and pest managemen t,
or as required for implementation of the Management Plan or to protect the general health
safety and welfare of the communit y, or unless required by a public emergency or
mandated by a County, State or Federal agency.
2.6 Chemical and Other Control Agents. With the exception of pest control programs as
provided for in Paragraph 3.5, there shall be no use of indiscriminate devices commonly
known as “bug-zappers,” nor shall any pesticides or other biocides (including but not
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limited to insecticides, fungicides, rodenticides, and herbicides) be used except as direct
(non-broadcast), targeted applications for control of invasive, non-native and/or serious
pest species if deemed appropriate by the Grantor in consultation with the Grantee and
applied under the supervision of the Grantor or its agent unless required by a public
emergency or mandated by a County, State, or Federal agency.
2.7 Fill and Material Storage. There shall be no storage or dumping of ashes, trash,
garbage, or other unsightly or offensive material, hazardous substance, or toxic waste, nor
any placement of storage tanks, pipes, or septic systems except as associated with a
permitted activity in, on, or under the Protected Property; there shall be no changing of the
topography through the placing of soil or other substance or material such as land fill or
dredging spoils unless specifically approved by regulatory agencies in consultation with
the Grantor and notification of the Grantee, except in conjunction with building and
maintenance of roadways as provided for in Paragraph 3.1b.. Culverts for trail maintenance
and ditch crossings are not considered pipes. Drainage improvements associated with
structures called for in the Management Plan, and not expressly prohibited by this
easement, are also permitted. This section shall not prohibit the Grantor from
storing materials naturally occurring on the site.
2.8 Water Quality. There shall be no pollution, depletion or extraction of surface water,
nor shall there be any alteration or manipulation of natural water courses, streams, swales,
ponds, marshes, subsurface water or any other water bodies on the Protected Property
inconsistent with the Management Plan and the reserved rights of the Grantor as provided
for in paragraph 3 and 2.2 This paragraph does not prohibit short-term re-direction of water
for irrigation, water management, drainage or wetland restoration or mitigation consistent
with the Management Plan and other provisions of this Conservation Easement.
2.9 Vehicles and Transportation. Except on duly approved and designated trails and/or
roadways in accordance with the Management Plan and except for emergency and policing
purposes or to meet accessibility requirements, there shall be no horseback riding or
operation of mountain or other bicycles, snowmobiles, dune buggies, motorcycles, all-
terrain vehicles, hang gliders, aircraft or any other types of mechanized or motorized
vehicles.
2.10 Education and Research. Major education and research programs and activities are
prohibited without prior permission of the Grantor in association with procedures and
criteria set forth in the Management Plan. Grantor shall notify Grantee of all proposals
which may result in any disturbance or manipulation of the Protected Property inconsistent
with the Management Plan. Said programs to be approved must conform to the terms and
conditions of this Conservation Easement, in particular those in Paragraph 2.2.
2.11 Parcel Integrity. The Protected Property may not be divided, partitioned, or
subdivided, nor conveyed except in its current configuration as an entity. Furthermore, any
additional parcels, which are officially added to said Town-owned
property in the future, become subject to the terms and conditions of this Conservation
Easement.
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2.12 Code Compliance. Nothing in this agreement will inhibit the Grantor from
compliance with Town codes and ordinances, provided such ordinances do not impair or
limit the application and enforcement of this Conservation Easement.
3. Grantor’s Responsibilities and Reserved Rights . Grantor has and retains primary
management responsibilities associated with the Protected Property. Said responsibilities
include monitoring of activities with respect to the status and effects of policies for and
actions on the Protected Property. Grantor reserves any and all rights and uses not
specifically conveyed or restricted including but not limited to the following:
3.1 Conveyance. The right to sell, give, lease, assign a significant management
responsibility, or otherwise convey the Protected Property to a local municipal
organization, foundation, or locally established land trust or conservancy provided such
conveyance is subject to the terms of this Conservation Easement and written notice is
provided to Grantee in accordance with paragraph 17.8 below. Such conveyance or
assignment will not have any effect on Grantee’s rights or obligations under this
agreement.
3.2 Continuance of Ongoing Activities. The right to undertake or continue any activity or
use of the Protected Property not prohibited by or inconsistent with this Conservation
Easement. Prior to making any change in the use of the Protected Property, Grantor shall
advise the Grantee in writing in accordance with Paragraphs 4.6 and 17.8. In keeping with
municipal responsibilities and authorities, Grantor retains its right and obligation to engage
in certain routine maintenan ce activities and emergency actions as identified in this
agreement and included in the Management Plan, which are necessary to protect public
health and welfare with reasonable post-emergency notification of Grantee.
a) Fire. Specifically included in said emergency actions are those associated with fire
protection and other life threatening emergencie s, provided such actions are authorized by
the appropriate individuals and in performed conjunction with acceptable procedures
existing at the time.
b) Roadways. Grantor specifically reserves the right to maintain and improve, if necessary,
existing access roadways which run along and provide access to officially designated
Town Ditches and their existing branches, as referenced in the Management Plan and on
official Town maps in existence at the time of this Easement, for the purposes of
maintaining said Ditches and providing suitable access routes for authorized emergency
and policing vehicles to use in the performance of their duties. The total number and total
length of such roadways shall be kept to the minimum absolutely necessary to accomplish
the functions permitted above and shall also be in compliance with the requirements of the
Americans with Disabilities Act (hereinafter “A.D.A.”) to the greatest extent possible;
Roadways may be established to provide for emergency vehicle access according to the
existing standard that no trails officially in use shall be further than 1000 feet from an
existing roadway passable to at least those emergency vehicles capable of traveling on
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unpaved, single-lane roadways, so long as Grantor continues to maintain said standard.
Any new roadways built for this purpose shall be located in such a manner as to minimize
the impact to natural areas, and to minimize the length of roadway needed to accomplish
said standard. Use of said roadways within the Protected Property and as described above
shall not be for general vehicular access and use by the public.
c) Ditches. Continued maintenance of certain ditches is allowed. Included are the
following: Continued and periodic maintenance or improvement of all official Town
Ditches or other drainageways conducting stormwater and similar drainage flows through
the Protected Property; continued and periodic maintenance of ditches that conduct
drainage into the Protected Property from adjacent property (subject to review and
approval by Grantee and permitting by regulatory agencies where appropriate); and
continued and periodic maintenance of minor ditches directly responsible for drainage
problems on adjacent properties (subject to review and approval by Grantee and permitting
by regulatory agencies where appropriate)
3.3 Cutting and Removal of Trees. Cutting or removing of trees, shrubs, or other plants is
prohibite d; except for trees growing in the existing seedling nursery or as provided for in
the Management Plan or authorized elsewhere in this Conservation Easement. The Grantor
reserves the right to limited pruning and/or felling of damaged trees as necessary to protect
people walking on trails, to protect other plant or animal life, and to provide necessary
access for authorized vehicles and people on maintenance/emergency access roadway s.
Removal of more than twenty (20) trees per year or two hundred (200) trees over a ten-
year period for the above identified trail maintenance purpose and any other cutting and/or
removal of vegetation is subject to the prior written approval of Grantee pursuant to
paragraph 4.6 below except as may be necessary under the Grantor’s emergency
authorities for the protection of public health and welfare. Trees shall be defined as woody
perennial plants, dead or alive, with a diameter at breast height (DBH) of six (6) inches or
more or as defined per Town Code, whichever may be smaller. Shrubs
shall include any trees or other woody vegetation smaller in size than vegetation defined as
a tree and shall include sapling trees which have not reached the defined tree size. Non-
native trees and shrubs are not subject to this prohibition but management of such non-
native species shall remain subject to the Management Plan.
3.4 Trails. The right to develop trails, boardwalks, and non-paved walkways in order to
accommodate public, pedestrian access and such recreational uses as may be appropriate
for a substantially natural, wooded wetland and wooded upland area. Grantor shall consult
with Grantee regarding the position, design, and extent of any new trail system(s) prior to
installation and Grantor remains responsible for any permits which may be required to
allow trail development and maintenance. Trees shall not be cut to establish or maintain
the trail system except as provided for in paragraph 4.5 below. Permissible trail
construction materials shall include but are not be limited to materials such as bark mulch
and wood chips, crushed stone or pea gravel, stabilized asphalt millings, naturally rot-
resistant or low toxicity pressure treated timber, except where other materials are required
by existing regulations, for example ADA access. Engineering fabric matting is permitted
if required by soil conditions and/or for trail durability. Trail development and
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maintenance shall not result in the placement of any asphalt, concrete, brick, slag, or any
construction and demolition debris of any kind as fill within any part of the Protected
Property. No more than twenty (20) miles of trails (exclusive of any roadways used also as
ADA accessible trails), shall be constructed and in existence at any particular time
The Grantor reserves the right to construct trails for use by persons confined to
wheelchairs or otherwise physically limited. The Grantor agrees to comply with current
ADA regulations and standards at the time of planning and construction for ADA access.
Any and all bridges and any boardwalks greater than 15 feet in length shall be designed
and constructed according to plans prepared and/or approved by a licensed engineer. All
trails must be identified with some form of signage, and frequency of said signage shall be
determined with consideration to concerns and needs of emergency personnel. Said trail
signage shall be in compliance with existing town ordinances and signage requirements of
the Americans with Disabilities Act where appropriate.
3.5 Pest Management . The right, but not the obligation, to continue or initiate programs to
manage and control species which pose serious and significant threats either to the health
and welfare of the public or to the well being and integrity of the natural communities
within the Protected Property. Said management by Grantor shall use the best available
technologies and similar approved methodology necessary to control pests in the interests
of protecting health and human safety both on a regular basis in the case of Grantor-
confirmed chronic problems, without consultation with the Grantee, and for emergency
purposes. Pest control efforts may include allowance for pest breeding habitat management
consistent with necessary analysis and specific management plans, permitting by
regulatory agencies, and emergency needs; and may include temporary limiting of access
by the public to problem areas until the problem there has been cured or minimized to the
satisfaction of both Grantor and Grantee.
3.6 Wetland Mitigation. The Grantor and Grantee hereby recognize and shall honor the
right of the New York State Urban Development Corporation (d.b.a. Empire State
Development Corporation) and its successors and assigns, according to a contract between
said Corporation and the Town of and dated
, 20 and executed by the aforementioned parties on
, 20 and on , 20 ,
respectively, to use a portion of the Protected Property for mitigation purposes associated
with wetland fill or other regulated impacts as required and approved by the appropriate
regulatory agencies. This right extends only to the amount absolutely required by said
contract, and including the limitation expressed in said contract that the development for
which the mitigation would be needed is confined to lands south of North French Road,
north of Dodge Road, east of Sweet Home Road, and west of Campbell Boulevard, and no
others. Furthermore, the Protected Property shall not be used for any other private wetland
mitigation plans or efforts beyond that provided for under the NYSUDC agreement. The
Grantor reserves the right to conduct ground disturbing wetland mitigation projects on the
Protected Property specifically to mitigate impacts of the Grantor’s activities on other
lands owned and managed by the Grantor. The area impacted by any such wetland
mitigation shall count toward the total allowed area of disturbance on the Protected
Property and shall be consistent with the Management Plan in effect at the time of the
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mitigation. Nothing in this paragraph shall limit the right of the Grantor to except cash
payments associated with private or public wetland mitigation activities and to direct such
funds towards management activities on the Protected Property.
3.7 Restoration Following Disasters. The right to carry out a habitat restoration plan and
program following destruction of the Protected Property by disasters such as fire or severe
blowdown or serious pest infestations. Such habitat restoration shall be performed
according to the Management Plan in effect at the time, and shall be consistent with the
terms and conditions of this Conservation Easement.
4. Grantee’s Responsibilities and Rights. To accomplish the purpose of this
Conservation Easement and in recognition of the Grantee's expertise and experience in the
area of natural area protection, the Grantee will act in the capacity of advisor to the Grantor
for monitoring the Conservation Easement and providing input in Management Plan
development and implementation. Consistent with this role, the following responsibilities
and rights are conveyed to Grantee by this Conservation Easement:
4.1 Responsibilities. Grantee is responsible for review of proposals and policies associated
with the Management Plan to ensure said proposals and policies are consistent with the
Conservation Easement; for monitoring of the Protected Property to ensure the policies,
activities, management efforts, and maintenance as performed are consistent with the
purpose of the Conservation Easement and the protection of the Conservation Values of
the Protected Property; and for bringing non-compliant activities to the attention of the
Grantor in order correct situations which are not in compliance with said Conservation
Easement. As part of its monitoring effort, Grantee shall prepare annual monitoring reports
for the Grantor. Said monitoring reports shall contain information on the condition of the
Protected Property, including the state of the road and trail system, the current covertypes
and ecological communities, and any observed problems or conflicts with current
management programs or problems; and in general, the compliance with the terms and
conditions of the Conservation Easement. Failure to produce an annual monitoring report
does not nullify this Conservation Easement in whole or in part, nor void any terms or
conditions of said Conservation Easement, but does allow Grantor to issue notification to
Grantee requiring completion of the monitoring report. Following such notification
Grantee must provide the monitoring report to Grantor within two (2) months or shall hire
a sub-contractor to complete the report within the calendar year of notification. Further,
any and all activities of the Grantee shall be in compliance with this Conservation
Easement and shall not interfere with the Conservation Values of the Protected Property.
4.2 Right to Enforce and Defend. The right to enjoin any activity on or use of the
Protected Property that is inconsistent with the purpose of this Conservation Easement or
detrimental to the Conservation Values. Further, the right to enforce the restoration
provisions of the Conservation Easement for such areas or features of the Protected
Property damaged by any inconsistent activity or use. Said rights may be exercised
pursuant to remedies set forth in paragraph 10.
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4.3 Right of Entry. The right to enter the Protected Property via the established rights of
way or other agreed upon routes at all reasonable times and, without prior notice for the
purpose of:
(a) Inspecting the Protected Property to determine if usage and conditions are in
compliance with the covenants and purposes of this Conservation Easement;
(b) Enforcing the terms of this Conservation Easement;
(c) Taking actions with respect to the Protected Property, to remedy or abate violations
hereof;
(d) Scientific and educational observations and studies and taking samples consistent with
the Management Plan and with consent of the Grantor and in such a manner as willnot
disturb the quiet enjoyment of the Protected Property by Grantor and the general public;
and
(e) Monitoring and management as described below.
4.4 Monitoring and Management. The right to place small, inconspicuous, permanent or
semi-permanent markers at official monitoring points consistent with the Management
Plan. The right to monitor the condition of the rare plant and animal populations, plant
communities, and natural habitats on the Protected Property, and to participate in the
management of the same, when requested by the Grantor, to ensure their continued
presence and viability on the Protected Property. Such activities shall be in accordance
with monitoring practices of the Grantee, which may include but are not limited to
activities set forth in the Management Plan prepared by Grantor in consultation with
Grantee. No further rights of management are conveyed.
5. Costs and Liabilities. 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. 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. Grantor agrees to release, hold harmless, and indemnify Grantee from
any and all liabilities including, but not limited to, injury, losses, damages, judgments,
costs, expenses and fees which Grantee may suffer or incur as a result of or arising out of
the activities of Grantor on the Protected Property. Grantee agrees to release, hold
harmless, and indemnify Grantor from any and all liabilities including, but not limited to,
injury, losses, damages, judgments, costs, expenses and fees which Grantor may suffer or
incur as a result of or arising out of the activities of Grantee on the Protected Property.
Grantee shall maintain appropriate liability insurance to cover its activities on the Protected
Property. Grantee's proof of insurance shall normally be provided along with the annual
monitoring report.
6. Title. Grantor covenants and represents that Grantor is the sole owner and is seized of
the Protected Property in fee simple and has the right to grant and convey the aforesaid
Conservation Easement; that the Protected Property is free and clear of any and all
encumbrances, including but not limited to, any mortgages not subordinated to this
Conservation Easement, all the foregoing of which is subject to rights, reservations,
restrictions and agreements recorded or otherwise, and, in particular, the rights of the New
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York State Urban Development Corporation or its successors and assigns, according to a
contract between said Corporation and the Town of
and dated June 15 th , 1992 and executed by the aforementioned
parties on , and on ,
, and that Grantee shall have the use of and enjoy all of the benefits derived
from and arising out of the aforesaid Conservation Easement.
7. Hazardous Waste. The Grantee accepts the Conservation Easement on the Protected
Property as is.
8. Grantee’s Remedies. In the event that Grantee becomes aware of a violation of the
terms of this Conservation Easement, Grantee shall give notice to Grantor, at Grantor’s last
known post office address, of such violation via certified mail, return receipt requested,
and request corrective action sufficient to abate such violation and restore the Protected
Property to its condition at the time of the most recent monitoring report. Grantor agrees
that the Baseline Documentation Report and subsequent annual monitoring reports shall be
deemed to provide objective information concerning the Protected Property’s condition.
Failure by Grantor to cause discontinuance, abatement or such other corrective action as
may be requested by Grantee within ninety (90) days after receipt of such notice shall
entitle Grantee to bring an action at law or equity in a court of competent jurisdiction to
enforce the terms of this Conservation Easemen t; to require the restoration of the property
to its previous condition; to enjoin such non-compliance by temporary or permanent
injunction in a court of competent jurisdictio n; and/or to recover any court assessed
damages arising from such noncomplianc e. Such damages, when recovered, must be
applied by the Grantee to the extent required for corrective action on the Protected
Property. If such court determines that either party has failed to comply with the terms and
conditions of this Conservation Easement, the non-complying party shall reimburse the
other party for its reasonable costs of enforcement, including costs of restoration, court
costs and reasonable attorney’s fees, in addition to any other payments ordered by such
court.
8.1 Emergency Enforcement. The Grantee has no policing authority on the Protected
Property beyond the right to monitor changes and notify the Grantor of any easement
violations. With due notice to the Grantor, if the Grantee, by official action of authorized
representatives, determines that circumstances require immediate action to prevent or
mitigate significant damage to the conservation values of the Protected Property, Grantee
may, in addition to pursuing its remedies under this paragraph without waiting for the
period for cure to expire, request immediate intervention by the Grantor's policing
authorities or, if necessary, may seek injunction or other intervention to prevent further
damages.
8.2 Failure to Act or Delay. Grantee does not waive or forfeit the right to take action as
may be necessary to insure compliance with this Conservation Easement by any prior
failure to act and Grantor hereby waives any defense of laches with respect to any delay by
Grantee, its successors or assigns, in acting to enforce any restriction or exercise any rights
under this Conservation Easement.
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8.3 Violations Due to Causes Beyond Grantor’s Control. Nothing herein shall be
construed to entitle Grantee to institute any enforcement proceedings against Grantor for
any changes to the Protected Property due to causes beyond Grantor’s control, such as
changes caused by pest infestations, fire, flood, storm, earthquake or the unauthorized
wrongful acts of third persons.
9. Parties Subject to Easement. The covenants agreed to and the terms, conditions, and
restrictions imposed by this grant shall not only be binding upon both the Grantor and the
Grantee but also upon their respective lessees, agents, personal representatives, successors
and assigns, and all other successors to Grantor and Grantee in interest and shall continue
as a servitude running in perpetuity with the Protected Property.
10. Subsequent Transfers. Grantor agree that the terms, conditions, restrictions and
purposes of this grant or reference thereto will be inserted by Grantor in any subsequent
deed or other legal instrument by which Grantor divests either the fee simple title or
possessory interest in the Protected Property including transfer to local agency or land
trust; and Grantor further agrees to notify Grantee of any pending transfer at least ninety
(90) days in advance. The Grantee also agrees to notify the Grantor of any similar pending
transfer or assignment of its interest in the Protected Property at least ninety (90) days.
Such transfer shall be subject to approval of the Grantor, approval of which shall not be
unreasonably withheld.
11. Assignment. This easement is only assignable with the consent of the Grantor, which
consent cannot be unreasonably withheld. Grantee hereby covenants and agrees that in the
event it transfers or assigns the 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 Internal Revenue Code of 1986 (or any successor section) and the
regulations promulgated thereunder, which is organized and operated primarily for one of
the conservation purposes specified in Section 170(h)(A) of the Internal Revenue Code,
and 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. Such assignment may include transfer or assignment of the easement or
significant management and monitoring responsibilities to a local agency, organization, or
land trust
12. Modification and Amendment. Grantor and Grantee have the right to agree to allow
certain otherwise prohibited activities under Paragraph 2 above, if, based on unforeseen or
changed circumstances, any of the activities listed in Paragraph 2 are deemed desirable by
Grantor and Grantee. Such agreement shall be in writing and shall describe the proposed
activity in sufficient detail to allow the parties to judge the consistency of the proposed
activity with the purpose of this Conservation Easemen t. The parties may authorize such
modifications only if they determine that the proposed activities:
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(1) do not violate the Purpose of this Conservation Easement, and
(2) either enhance or do not impair any significant Conservation Values associated with
the Protected Property.
In the event that such proposed modifications are determined to be significant and/or
permanent. The parties are also free to jointly amend the Conservation Easement. Any
such amendment shall be recorded. Notwithstanding the foregoing, Grantee and Grantor
have no right or power to agree to any activities on the protected properties that would
result in the termination of this Conservation Easement. However, nothing shall prevent
the parties from entering into a settlement agreement as a result of any litigation hereunder.
13. Extinguishment. If a change in conditions takes place which makes impossible any
continued protection of the Protected Property or any portion thereof, for conservation
purposes, this Conservation Easement can only be terminated or extinguished, whether in
whole or in part, through mutual agreement of Grantor and Grantee followed by judicial
proceedings, if required, in a court of competent jurisdiction. The parties agree that the
Grantee shall be entitled to the fair market value, if any, of the Conservation Easement at
the time of termination or extinguishment.
Grantor hereby agrees that at the time of the conveyance of the Conservation Easement to
Grantee, the Conservation Easement gives rise to a real property right, immediately vested
in Grantee. Any proceeds resulting from extinquishment shall be placed in a trust or
escrow account for exclusive use in acquiring, protecting, restoring or managing suitable
property within the Town of 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
P.L. 96-541, 26 USC 170(h)(4)(A)(ii), as amended and in regulations promulgated
thereunder. Terms of this easement would extend to the greatest extent possible to any
newly acquired property.
14. Eminent Domain. Whenever all or part of the Protected Property is taken in exercise
of eminent domain by public, corporate, or other authority so as to abrogate the restrictions
imposed by this Conservation Easement, Grantor and Grantee shall join in appropriate
actions at the time of such taking to recover the full value, if any, of the taking and all
incidental or direct damages resulting from the taking. The proceeds, if any, attributed to
Grantee’s interest in the Protected Property shall be used as specified above in paragraph
13 for the acquisition or protection of open space property within the Town of
. Nothing herein is intended to limit Grantor's powers under the
eminent domain law of New York State.
15. Miscellaneous Provisions.
15.1 Severability. If any provision of this Conservation Easement or the application
thereof to any person or circumstance is found to be invalid, 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.
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15.2 Successors and Assigns. The term “Grantor” shall include Grantor and 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 The Western New York Land Conservancy, Inc. and its
successors and assigns.
15.3 Execution. Grantee and Grantor agree to execute and record or file any further
instruments or documents necessary to accomplish the intent and ensure the perpetual
enforceability of this Conservation Easement.
15.4 Captions. 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.
15.5 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 a disparity
between the counterparts produced, the recorded counterpart shall be controlling.
15.6 Reserved.
15.7 Reserved.
15.8 Notices. Any notices required in this Conservation Easement shall be sent by
registered or certified mail, or similar receipt acknowledged form of communication, to the
following address or such addresses as may be hereafter specified by notice in writing:
Granto r: Town of
Grantee : , Inc.
TO HAVE AND TO HOLD the said Conservation Easement unto the said Grantee forever.
IN WITNESS WHEREO F, Grantor has executed and sealed this document the day and year
first
above written.
Witness:
Grantor:
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Town of , New York
witness
signature
signature
title
Witness:
Grantee:
, Inc.
witness
signature
signature
title
STATE OF NEW YORK )
COUNTY OF ) SS.:
On this day of in the year before me,
the undersigned personally appeared , 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 the 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 the instrument.
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STATE OF NEW YORK )
COUNTY OF ) SS.
On this day of in the year before me, the
undersigned personally appeared , 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 the 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 the instrument.
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