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L 12860 P 891
1111111 IIII IIIII IIIII 11111 VIII 1111111111 11111 IIII IIII IIIII IIIII IIIII IIII IIII SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument: EASEMENT Recorded: 04/18/2016 Number of Pages: 44 At: 01:25:14 PM Receipt Number : 16-0059188 TRANSFER TAX NUMBER: 15-26045 LIBER: D00012860 PAGE: 891 District: Section: Block: Lot: 1000 115. 00 08 .00 003.005 EXAMINED AND CHARGED AS FOLLOWS Deed Amount: $0 .00 Received the Following Fees For Above Instrument Exempt Exempt Page/Filing $220 . 00 NO Handling $20.00 NO COE $5 . 00 NO NYS SRCHG $15.00 NO TP-584 $5 .00 NO Notation $0.50 NO Cext.Copies $40 . 00 NO RPT $400.00 NO Transfer tax $0 .00 NO Comm.Pres $0 . 00 NO Fees Paid $705 .50 TRANSFER TAX NUMBER: 15-26045 THIS PAGE IS A PART OF THE INSTRUMENT THIS IS NOT A BILL JUDITH A. PASCALE County Clerk, Suffolk County t , 00 r r/( RECOF E[ Number of pages j 4 2016 Apr 10 01:25:14 Pig JUGITH A. P(SCALE CLERK OF This document will be public SUFFOLK CO'-"'T''' L 000012260 record. Please remove all P cot Social Security Numbers • o:# 15-26045 prior to recording. Deed/Mortgage Instrument Deed/Mortgage Tax Stamp Recording/Filing Stamps 3 FEES Page/Filing Fee a�a Mortgage Amt. • 1. Basic Tax Handling 2 00 2. Additional Tax TP-584 Sub Total - Notation ,5b Spec./Assit, or EA-52 17(County) Sub Total L9'6Spec./Add. EA-5217(State TOT.MTG.TAX R.P.T.S.A. 400 ,., "'"q.,‘`' Dual Town Dual County � : Held for Appointment Comm.of Ed, 5. 00 Transfer Tax Affidavit Ir 4. 'y Mansion Tax 'f� The property covered by this mortgage is C;"'sed Copy `f or will be improved by a one or two S Surcharge 15. 00family dwelling only. Sub Total14 C1 YES or NO Other Grand Total 10 5 , S 0 ‘0 If NO,see appropriate tax clause on page# of this it strun�ent. 3r /b: i40 4 {Dist. / 3138645 Ct_( led �n3„0-06Community / Q � �- 5 Preservation Fund Real Propert R CASA IIllOOhII1I1OiO1ftI Consideration Amount$ Tax Service Agency 18-APR-1 CPF Tax Due $ Vgcation — Improved 6 Satisfactions/Discharges/Releases List Property Owners Mailing Address RECORD&RETURN TO: Vacant Land IPecbhixi,Lbnd;:Ttust4 Inc orpokated TD P.O. Box 1426 Southtimt;tc nJ INY111969 • TD TD Mail.to:Judith A. Pascale, Suffolk County Clerk 7 Title Company Information 310 Center Drive, Riverhead, NY 11901 Co.Name SrrwAkr Tires INS,e0. ' www.suffolkcountyny.goviclerk Title# srl S-?S'.7..2 8 Suffolk County Recording & Endorsement Page This page forms part of the attached Amended and Restated Deed of Conservation Easement made by: (SPECIFY TYPE OF INSTRUMENT) The premises herein is situated in Walker/McCall, LLC SUFFOLK COUNTY,NEW YORK. TO In the TOWN of -liter7,o t-b Peconic Land Trust, Incorporated In the VILLAGE or HAMLET of In 4-mrucJ( BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING. p s R LPA A Stat ID: L 3138645 18-APR-18 Tax Maps District Secton Block Lot School District 1000 11500 0800 003005 1000 11500 0800 003006 ,, J,- /f • - ..--, • /1' A -, efisr, 0-4 .,' r .-mo• w d 1Yf f i,. '� /41(7,0' t �� a. yf r.T If.'; otr Atv !' / y 'Lf' fi r (f 3 f f / f y 41 b•ye r. IY J � •11:// /‘-/ T t AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT THIS AMENDED AND RESTATED DEED OF CONSERy TION E SEM NT ("Amended and Restated Conservation Easement") is made on the fir day of , 2016 ("Effective Date"), at Southold, New York. The parties are WALKER/MCCALL, LLC, a W'qr Georgia limited liability company, do Russell C. McCall, whose address is P.O. Box 271, 1 Cutchogue, New York 11952 (herein called "Grantor"), and the PECONIC LAND TRUST, C.,4I►"'j�� INCORPORATED, a not-for-profit New York corporation, having a principal office at 296 1t y Hampton Road, P.O. Box 1776, Southampton, New York 11969 (herein called "Grantee"). Grantor and Grantee herein may hereinafter collectively be designated the"Parties". INTRODUCTION WHEREAS, Grantor is the owner in fee simple of 28.6496-acres of certain real property located in the Agricultural Conservation (AC) zoning district of the Town of Southold ("Town"), Suffolk County, New York, further described as SCTM# 1000-115-8-3.5 & 3.6 and more fully described in SCHEDULE A attached hereto and made a part hereof, and hereinafter referred to as the "Property";and WHEREAS, the Property is free of any liens, except that certain mortgage held by John Elak, Jr., and Roseanne Berezny, dated May 2, 2014, and recorded on May 14, 2014, in the Suffolk County Clerk's office, which mortgage has been subordinated to this Amended and Restated Conservation Easement by the execution and recordation of a subordination agreement recognizing the terms of this Amended and Restated Conservation Easement and subordinating said mortgage to Grantee's right to enforce this Amended and Restated Conservation Easement. Said subordination agreement is being recorded in the Suffolk County Clerk's office prior to the recording of this Amended and Restated Conservation Easement. WHEREAS,by Deed of Conservation Easement dated August 25, 2003, and recorded on October 20, 2003, in the Office of the Clerk of the County of Suffolk, New York, at Liber 12278, Page 718 ("Original Conservation Easement"), Grantor placed all but a 0.2215-acre portion of the Property designated as the "Reserved Area," as shown on the survey made by John C. Ehlers Land Surveyor, dated November 29, 2002, as amended on June 4,2003, and June 26,2003, as described in SCHEDULE A and as shown on the Conservation Easement Map marked EXHIBIT A hereof, each attached hereto and incorporated herein by this reference, under the terms and conditions of such Original Conservation Easement for the purpose of preserving and protecting the Property's scenic, open-space and agricultural values and preserving these values to preserve prime agricultural soils, to protect the scenic, open-space character of the Town, and to protect the Town's resort and agricultural economy in perpetuity; and - 1 - � r WHEREAS, the Original Conservation Easement created two primary areas of the Property,in which different limited development and use restrictions apply: (1)the 24.5418-acre "Agricultural Area"; and (2)the 3.8863-acre"Development Area." Within the Agricultural Area, Grantor reserved rights to construct agricultural structures; access drives to provide access to permitted structures and improvements; temporary unpaved farm roads; underground facilities used to supply utilities, septic systems, leaching fields, and control stormwater runoff from permitted structures and improvements; fences; vineyard, orchard, nursery or fruit posts, trellises and wires; greenhouses, limited to an aggregate of 10,000 square feet, including any located on the Development Area;temporary tunnels or crop covers not exceeding three (3) feet in height; and irrigation structures. According to the Original Conservation Easement, the maximum aggregate of the Agricultural Area that could be covered by structures and improvements shall not exceed 10%. Within the Development Area, Grantor reserved rights to construct certain residential and non-residential structures including one (1) single-family residence with appurtenant structures and improvements; one (1) agricultural commercial structure with appurtenant structures and improvements; and any other agricultural structures and improvements, including access roads, parking areas, loading docks, and related improvements necessary to conduct allowable agricultural and/or winery-related businesses; agricultural structures, including but not limited to stables, barns and sheds; any structures and improvements permitted in the Agricultural Area; and greenhouses, limited to an aggregate of 10,000 square feet, including any located on the Agricultural Area. According to the Original Conservation Easement, the maximum aggregate footprint of all structures in the Development Area shall not exceed 20%of the total square footage of the Development Area; and WHEREAS, a 24.5418-acre portion of the Property (hereinafter referred to as the "Agricultural Area") is subject to a deed ("Town Deed of Development Rights"), in which the development rights were sold to the Town on August 25, 2003, and recorded on September 19, 2003, in the Office of the Clerk of the County of Suffolk, New York, at Liber 12273, Page 138. This Amended and Restated Conservation Easement is not intended to supplant or contradict anything contained in the Town Deed of Development Rights; and WHEREAS, the development rights on the 3.8863-acre portion of the Property (hereinafter referred to as the "Development Area") were sold to the Town of Southold on March 10, 2016, amending the Town Deed of Development Rights by adding the Development Area to the Agricultural Area, and said amended deed of development rights is presently being offered to the Suffolk County Clerk's Office for recording; and WHEREAS, the Original Conservation Easement states and requires that the Property shall remain in its predominantly open, undeveloped, and agricultural state in order to preserve its scenic, open-space and agricultural values and thereby preserve and protect prime agricultural soils, the scenic, open-space character of the Town, and the Town's resort and agricultural economy (hereinafter defined and designated as "Conservation Values");and - 2- WHEREAS, Grantor and Grantee now wish to amend and further restrict the Original Conservation Easement in order to further preserve and protect the Property's Conservation Values; and WHEREAS, Grantor and Grantee wish to further encumber the Property with an "Affirmative Farming Covenant," as further described herein, on the Property so that the Property shall be further restricted so as to remain in active agricultural production and only be used for agricultural purposes;and WHEREAS, Grantor and Grantee have mutually concluded that this Amended and Restated Conservation Easement will not affect the qualification of the Original Conservation Easement, or the status of Grantee under any applicable laws, including Section 170(h) of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (the "Code"); and the New York State Environmental Conservation Law, Section 49-0301, et seq.; is fully consistent with the conservation purpose of the Original Conservation Easement, will not affect the perpetual duration of the Original Conservation Easement, and will enhance the purpose of the Original Conservation Easement, and the protection of the Property's significant Conservation Values by providing assurance that the Property will actively be put to agricultural use pursuant to the terms of this Amended and Restated Conservation Easement; and WHEREAS, Grantor and Grantee have carefully reviewed the aforementioned revisions as incorporated into the provisions of this Amended and Restated Conservation Easement and have mutually concluded, as evidenced by their agreement hereto, that it is appropriate and desirable to amend, restate, and further restrict the Original Conservation Easement, as provided herein; and WHEREAS, Grantor and Grantee have agreed to adopt and accept this Amended and Restated Conservation Easement;and WHEREAS, the Property contains soils classified as Class I and Class II worthy of conservation as identified by the United States Department of Agriculture Soil Conservation Service's Soil Survey of Suffolk County, New York; and WHEREAS, the Property is part of the New York State Agricultural District #1, and Grantor wishes to continue using the Property in an agricultural capacity and as scenic open space as defined in the Town of Southold Code; and WHEREAS, the Property has been in agricultural use for many years and continues to be in production today, currently in grain crops. Ensuring that the Property remains in active agricultural production provides for the perpetual utilization of the Property's significant agricultural attributes and protects the region's food supply; and - 3- 1 t WHEREAS, it is the policy of the Town of Southold, as articulated in the Town's Master Plan of 1973, amended in 1986 and 1989 as adopted by the Town Board, Town of Southold Code, Section 272-a of the Town Law, to protect environmentally sensitive areas, preserve prime agricultural soils, to protect the scenic, open-space character of the Town and to protect the Town's resort and agricultural economy; and WHEREAS, New York State has recognized the importance of not-for-profit conservation organizations' efforts to preserve land in a scenic, natural and open condition through conservation easements by enactment of the Environmental Conservation Law, Section 49-0301 et seq.;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 encourage the development and improvement of its agricultural lands for the production of food and other agricultural products"; and WHEREAS, Article 57 of the New York State Environmental Conservation Law, Section 57-0101 et seq., entitled "Long Island Pine Barrens Maritime Reserve Act," declared it to be in the public interest to protect and manage the Pine Barrens/Peconic Bay maritime system, including the Property; and WHEREAS, the Property is located within the Peconic Estuary of the New York State Coastal & Estuarine Land Conservation Program, a federal program established to protect important coastal and estuarine areas that have significant conservation, recreation, ecological, historical, or aesthetic values, or that are threatened by conversion from their natural or recreational state to other uses, as identified in the 2009 New York State Open Space Conservation Plan, e-Appendix D., and approved in 2007 by the United States National Oceanographic and Atmospheric Association; and WHEREAS, the Property is part of the Peconic Estuary System, which was included in the National Estuary Program by determination of the United States Environmental Protection Agency on September 9, 1992, as a "nationally significant estuary";and WHEREAS, the Property has a total of 397.54 feet of frontage on the publicly accessible Main Road/State Route 25 and 668.75 feet of frontage on the publicly accessible New Suffolk Avenue; and WHEREAS, the Property is unique to the area in its current scenic, agricultural and open-space condition and has substantial and significant value as an aesthetic and agricultural resource because of the fact that it has not been subject to any development while surrounded by increasing development in a sprawl pattern with limited conservation, such that the Property's scenic open-space values are increasingly unique to the area;and -4- WHEREAS, the Property in its scenic and open-space condition protects and preserves the character of the Town of Southold and therefore protects and preserves the Town's resort and agricultural economy by reason of the fact that it has not been subject to any extensive development; and WHEREAS, Grantor and Grantee recognize the value and special character of the region in which the Property is located, and Grantor and Grantee have, in common, the purpose and objective of protecting and conserving the inherent, tangible and intangible values of the Property as an aesthetic,scenic and agricultural resource; and WHEREAS, Grantor has determined that the conveyance of this Amended and Restated Conservation Easement will be desirable and beneficial and has requested Grantee, for itself and its successors and assigns, to accept this Amended and Restated Conservation Easement in order to further restrict the development of the Property while permitting uses compatible with the protection of the Property's Conservation Values; and WHEREAS, Grantor desires to donate this Amended and Restated Conservation Easement, and Grantee has determined it to be desirable and beneficial to accept Grantor's donation of this Amended and Restated Conservation Easement, in order to protect the Property's Conservation Values while permitting private uses of the Property that do not impair the Property's Conservation Values and are not inconsistent with the purposes of this Amended and Restated Conservation Easement; and WHEREAS, Grantor and Grantee intend that this Amended and Restated Conservation Easement document the agreement of Grantor and Grantee with respect to the foregoing and also to confirm and continue the valid and binding effect of the terms, covenants, easements, and restrictions of the Original Conservation Easement as restated herein. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 0.01 Purposes The Parties recognize the Conservation Values of the Property and have the common purpose of preserving and protecting these Conservation Values in perpetuity. This Amended and Restated Conservation Easement is granted by Grantor to Grantee for the purposes of protecting the Property's Conservation Values and ensuring that the Property will continue to be used for active agricultural production and other agricultural uses and thereby further protecting the Property's scenic views, open-space character, prime agricultural soils, and other Conservation Values in perpetuity (collectively, the"Conservation Purpose")by preventing any use or development of the Property for any purpose or in any manner contrary to the intent and provisions hereof, including the Conservation Purpose, and by including affirmative provisions that require the Property to be actively managed for agricultural production and use. Any use -5 - i t or activity that is inconsistent with the Conservation Purpose or deleterious to the Conservation Values is prohibited. 0.02 Grantee's Warranty Grantee warrants and represents that it possesses the intent, ability, commitment and resources to enforce the terms of this Amended and Restated Conservation Easement on the Property, and that the Property satisfies the criteria adopted by Grantee relating to the quality and characteristics of natural, scenic, agricultural and open land that should be protected and maintained as natural, scenic, agricultural and open land, as determined by its Board of Directors at a duly constituted meeting of that Board on November 11, 2002. This Amended and Restated Conservation Easement was approved by Grantee's Board of Directors at a duly constituted meeting on August 18, 2014. 0.03 Documentation Grantor has made available to Grantee sufficient documentation to establish the uses and condition of the Property at the time of the grant of this Amended and Restated Conservation Easement. In order to aid in identifying and documenting the present condition of the Property's natural, wildlife, watershed, scenic, agricultural and aesthetic resources and otherwise to aid in identifying and documenting the Property's open-space values as of the date hereof, and to assist Grantor and Grantee with monitoring the uses and activities on the Property and ensuring compliance with the terms hereof, Grantee prepared, with Grantor's cooperation, at the time of the grant of the Original Conservation Easement a baseline documentation report and again at the time of the grant of this Amended and Restated Conservation Easement a supplemental baseline documentation report, both of which reports provide an inventory of the Property's relevant features and conditions (collectively, the "Baseline Documentation"). This Baseline Documentation includes maps of the conservation easement area, aerial photographs, photographs of the Property, topographical maps, descriptions and site plans of existing land uses, features and structures, and acknowledgment pages signed by Grantor and Grantee, which verify that the Baseline Documentation, as updated, accurately represents the condition of the Property as of the effective date of the Original Conservation Easement and the Effective Date of this Amended and Restated Conservation Easement respectively. Grantor and Grantee acknowledge and agree that in the event a controversy arises with respect to the nature and extent of Grantor's uses of the Property or its physical condition as of the effective date of the Original Conservation Easement and the Effective Date of this Amended and Restated Conservation Easement, respectively, the Parties shall not be foreclosed from utilizing any other relevant or material documents, surveys, reports, photographs, or other evidence to assist in the resolution of the controversy. -b- ARTICLE ONE THE AMENDED AND RESTATED CONSERVATION EASEMENT 1.01 Type This Amended and Restated Conservation Easement consists of the covenants, restrictions, rights, terms and conditions recited herein. Reference to this "Amended and Restated Conservation Easement" or its "provisions" includes any and all of those covenants, restrictions,rights, terms and conditions. 1.02 Duration This Amended and Restated Conservation Easement shall be a burden upon and run with the Property in perpetuity. 1.03 Effect This Amended and Restated Conservation Easement shall run with the Property as an incorporeal interest in the Property, and shall extend to and be binding upon Grantor, Grantor's agents, tenants, occupants, heirs, personal representatives, successors and assigns. The word "Grantor" when used herein shall include all of those persons or entities. Any rights, obligations, and interests herein granted to Grantee shall also be deemed granted to each and every one of its subsequent permitted agents, successors, and assigns, and the word "Grantee" when used herein shall include all of those persons or entities. ARTICLE TWO PROHIBITED USES AND ACTIVITIES Grantor's use and development of the Property shall be consistent with the Conservation Purpose and compatible with the preservation of the Property's Conservation Values. Without limiting the generality of the foregoing, and except as provided in Article Three of this Amended and Restated Conservation Easement, the following uses and practices, though not an exhaustive recital of inconsistent uses and practices, are inconsistent with the Conservation Purpose of this Amended and Restated Conservation Easement and, unless otherwise explicitly provided herein, are prohibited anywhere on the Property. Nothing herein shall preclude bona fide agricultural production conducted pursuant to the terms of this Amended and Restated Conservation Easement. -7- 2.01 Buildings,Structures and Improvements Except as provided in Article Three of this Amended and Restated Conservation Easement, the construction or placement of any residential, commercial, industrial or other building, structure, or improvement of any kind or nature (including, but not limited to one or more mobile homes), whether permanent or temporary, on, over, or under the Property, is prohibited. 2.02 Excavation and Removal of Materials;Mining Mineral exploitation, and extraction of any mineral (including but not limited to soil, gravel, sand and hydrocarbons), by any method, surface or subsurface, is prohibited. Grantor shall not remove or fill topsoil, sand, or any other materials, nor shall the topography of the Property be changed except in connection with sound agricultural practices in conformance with the terms of this Amended and Restated Conservation Easement or the construction and maintenance of any building, structure or improvement expressly permitted to be placed, or constructed on the Property under the terms of Article Three below. Grantor may remove topsoil, sand or other materials for agricultural purposes, including erosion control and soil management only with the prior written approval of Grantee. 2.03 Subdivision For purposes of this Amended and Restated Conservation Easement, the Property is considered and shall remain one(1) parcel in unified ownership. Grantor shall not subdivide, de facto subdivide, partition or seek the partition, or otherwise divide the Property into separately conveyable parcels without the prior written approval of Grantee. Subdivision of the Property shall be subject to the restrictions of the Town Deed of Development Rights, as amended, and all governmental regulatory requirements. In no event shall any subdivision result in the creation of lots containing less than 10 acres of preserved land. 2.04 Dumping The dumping or accumulation of unsightly or offensive materials, including but not limited to trash, garbage, sawdust, ashes or chemical waste, on the Property is prohibited. This prohibition shall exclude the deposition of materials used on the Property for, or resulting from, the conduct of sound agricultural practices in accordance with Section 3.01 below. 2.05 Signs The display of any sign, billboard, or advertisement is prohibited, except as expressly permitted in Section 3.02 below. -8- 2.06 Cutting of Timber The cutting or harvesting of trees on the Property is prohibited, except as expressly permitted in Section 3.03 below. 2.07 Soil and Water Any use or activity that is not otherwise expressly or conditionally permitted under this Amended and Restated Conservation Easement that causes or is likely to cause soil degradation or erosion or pollution of any surface or subsurface waters is prohibited; provided that this prohibition shall not be construed as extending to agricultural operations and practices (including, without limitation, the use of agrochemicals such as fertilizers, pesticides, herbicides, and fungicides) that are used in accordance with sound agricultural management practices of the U.S. Department of Agriculture's National Resource Conservation Service as outlined in the agricultural conservation plan described in Section 4.01 below, or to conditions existing prior to the execution of this Amended and Restated Conservation Easement. 2.08 Landscaping Activities The removal of any tree, shrub, or other vegetation from the Property is prohibited, except as expressly permitted in Section 3.03 below. A lawn— meaning an area of land on which grasses or other durable plants are grown and maintained at a short height and principally used for aesthetic, recreational, estate or other purposes—is prohibited. Land that is in agricultural production, including land left fallow as provided in the Conservation Plan (as defined in Section 4.01 below), is not considered lawn. 2.09 Vegetation Management and Screening The placement of any landscape screening, hedgerow, or any other type of screening along or near Main Road/State Route 25 or New Suffolk Avenue is prohibited. Screening for agricultural purposes may be permitted with the prior written approval of Grantee. 2.10 Commercial and Industrial Uses Except for the conduct of those commercial agricultural activities described in Section 3.01 below and as expressly permitted in Section 3.04 below, any commercial or industrial use of the Property is prohibited. 2.11 Utilities The creation or placement of aboveground utilities on the Property is prohibited. Underground utilities on the Property are also prohibited, except as expressly permitted in Section 3.05 below and subject to the prior written approval of Grantee. The repair or _ 9_ replacement (in kind and in situ) of any existing utilities is permitted without the prior written approval of Grantee. 2.12 Drainage The use of any portion of the Property for a leaching or sewage disposal field is prohibited, except to service the agricultural buildings, structures, and improvements expressly permitted by this Amended and Restated Conservation Easement. The use of the Property for a drainage basin or sump is prohibited,except to control flooding or soil erosion on the Property. 2.13 ATVs The use of recreational all-terrain or off-road vehicles is prohibited,except for management of the Property and emergency use. 2.14 Development Rights The use of this Property for the purpose of calculating lot yield or development density on the Property or any other property, adjacent or otherwise, is prohibited. Grantor hereby grants to Grantee all development rights existing on the Property as of the Effective Date of this Amended and Restated Conservation Easement (and any future development rights that may be created through a rezoning of the Property, or otherwise), which have not been retained or reserved by Grantor under this Amended and Restated Conservation Easement. By Grantee's acceptance of this Amended and Restated Conservation Easement, the Parties agree that such excess development rights granted by Grantor to Grantee are terminated and extinguished by Grantee, and may not be used by Grantor or Grantee nor transferred to any other parcels. This does not preclude use of the Property for computing area required for permitted uses, buildings, structures or improvements, including without limitation density under the Suffolk County Sanitary Code. ARTICLE THREE PERMITTED USES AND ACTIVITIES Grantor reserves the right to use the Property in any manner that is neither expressly prohibited herein nor inconsistent with the Conservation Purpose and other terms and conditions of this Amended and Restated Conservation Easement and that is in accord with existing zoning laws and restrictions. Without limiting the generality of the foregoing, the following uses and practices, though not an exhaustive recital of consistent uses and practices, are expressly permitted under this Amended and Restated Conservation Easement. - 10- 3.01 Commercial Agricultural Activities Grantor shall have the right to engage in any type of agricultural activity that (i) is permitted under §301(2)(a)-(j) of the New York State Agriculture and Markets Law as the term is defined as of the Effective Date of this Amended and Restated Conservation Easement; (ii) results in a substantial portion of those crops, livestock, and livestock products cultivated, grown, raised, and/or produced on the Property being sold, traded, or otherwise exchanged and/or consumed as food by livestock that is used for either direct or indirect food consumption as part of a commercial agricultural enterprise in which the average annual gross sales is ten thousand dollars ($10,000) or more, as defined as of the Effective Date of this Amended and Restated Conservation Easement under §301(4)(f) of the New York State Agriculture and Markets Law, provided that such average gross sales figure shall be adjusted every five (5) years after the Effective Date as provided below; and (iii) does not have a material adverse effect on the Conservation Values (collectively, "Commercial Agricultural Activities"). Notwithstanding the foregoing, the production of sod and any Commercial Agricultural Activities that remove, and do not replace, soil from the Property, including, but not limited to, ball and burlap nursery, shall be prohibited on the Property. Permitted Commercial Agricultural Activities shall be conducted in accordance with the Conservation Purpose and other terms and conditions of this Amended and Restated Conservation Easement and in consideration of an agricultural conservation plan (as further described in Section 4.01 herein). In addition, at least eighty percent (80%) of the Property shall at all times be used for Food Production. Food Production shall mean the cultivation, growing, raising, and/or production of Food and Food Products, meaning all articles of food, drink, confectionary or condiment, whether simple, mixed or compound, used or intended for use, including ingestion,by humans or animals, and shall also include all substances and ingredients to be added to food for any purpose as the term is defined by §2 of the New York State Agriculture and Markets Law as of the Effective Date of this Amended and Restated Conservation Easement. The definition of Food Production shall include but not be limited to row crops for consumption as food by Iivestock for either direct consumption, such as beef cattle, or indirect consumption, such as dairy cows for the production of milk and milk products or chickens for the production of meat or eggs. The cultivation, growing, raising, or production of row crops for consumption as food by livestock that is not used for either direct or indirect food consumption, such as horses, is not within the meaning of Food Production. The (80%) Food Production computation shall be determined as 80% of the following: the total area of the Property minus the portion of the Property consisting of the following areas, buildings, structures, and improvements: (i) sensitive natural areas including woodlands, wetlands, and habitat areas; (ii) land allowed to lay fallow, meaning land that is plowed and harrowed but left unsown for a temporary period in order to restore soil fertility, manage pests and weeds, or to avoid surplus production as part of a crop rotation in consideration of an agricultural conservation plan (as provided in Section 4.01 herein); and (iii) the areas containing permitted non-Food Production agricultural buildings, structures and improvements (as provided in Section 3.05 herein. - 11 - The average gross sales figure set forth in this Section 3.01 shall be adjusted every five (5) years by the percentage increase (or decrease, as applicable) during the past five years in the "CPI," which means the United States Department of Labor's Bureau of Labor Statistics Consumer Price Index for all Urban Consumers (CPI-U, all items) (1982-84=100), or the successor of such index, or as amended under§301(4)(f) of the New York State Agriculture and Markets Law,whichever is less. Should §301 of the New York State Agriculture and Markets Law be amended after the Effective Date to include agricultural activities and uses not currently included in the present law, Grantor may engage in such additional agricultural activities so long as such agricultural activities are consistent with the Conservation Purpose and are not otherwise prohibited by this Amended and Restated Conservation Easement. 3.02 Signs The display of signs, billboards, or advertisements is prohibited, except for signs whose placement, number, and design do not significantly diminish the scenic Conservation Values of the Property and only for any of the following purposes: (a) to state the name and address of the Property and the names and addresses of the occupants and businesses; (b) to temporarily advertise the Property or any portion thereof for sale or rent; (c) to post the Property to control unauthorized entry or use; and (d) to announce this Amended and Restated Conservation Easement. Any permitted sign shall not be more than six (6) square feet in size, shall be non- illuminated, and shall be subject to applicable governmental regulatory requirements. 3.03 Cutting of Timber;Landscaping Activities The cutting, pruning or removal of trees, shrubs, or other non-agricultural vegetation on or from the Property is prohibited, except for the following purposes: (a) to clear and/or restore any tree, shrub, or other vegetation that is dead, damaged, diseased, destroyed or non-native and invasive; (b) to prune and/or selectively thin trees to create limited vistas and/or for grounds maintenance; (c) to manage and/or improve the significant relatively natural habitat on the Property, including by removal of invasive species; (d) as reasonably necessary for the conduct of those uses and activities expressly permitted under the terms of this Amended and Restated Conservation Easement, including but not limited to constructing and maintaining those agricultural buildings, structures, and improvements expressly permitted under the terms of this Amended and Restated Conservation Easement; (e) to clear the Property for Commercial Agricultural Activities if, after the Effective Date, as further described in the Baseline Documentation, the Property has lain fallow and was allowed to become wooded; (f) for firewood and fencing for use on the Property; (g) for the purpose of continuing the modes of landscaping exercised on the Property prior to and as of the Effective Date of this Amended and Restated Conservation Easement as further described in the Baseline Documentation; and (h) to remove any hazard or other legal liability to persons, personal or real property, or the Property - 12- 1 } and/or to persons or personal or real property of neighboring properties; provided, however, that any such activity shall require Grantee's prior written approval pursuant to Article Five below and must be conducted in accordance with generally accepted best habitat conservation and forest management practices and the Conservation Purpose of this Amended and Restated Conservation Easement. 3.04 Commercial Uses With Grantee's prior written approval, in Grantee's sole discretion, Grantor shall have the right to engage in commercial uses, including commercial recreational uses, so long as such uses are consistent with the Conservation Purpose, the Town Deed of Development Rights, and do not materially impair the Conservation Values of the Property. 3.05 Agricultural.Buildings, Structures and Improvements Grantor shall have the right to erect and maintain the following non-residential agricultural buildings, structures and improvements, provided such agricultural buildings, structures and improvements are (i) compatible with the preservation of the Conservation Values, (ii) consistent with the Conservation Purpose, and (iii) in accordance with the following provisions: A. Allowable Non-Residential Agricultural Buildings and Structures With Grantee's prior written approval and except as otherwise expressly prohibited herein, Grantor shall have the right to erect and maintain agricultural buildings and structures, including but not limited to stables, barns, sheds, silos, greenhouses and/or hoophouses. Permitted agricultural buildings and structures shall be placed and constructed so that they do not materially impair the Conservation Values of the Property, including but not limited to the Property's scenic values.The maximum aggregate of the Property that may be covered by permitted agricultural buildings and structures shall not exceed 2%. B. Allowable Non-Residential Agricultural Improvements With prior written notice to Grantee and except as otherwise expressly prohibited herein, Grantor shall have the right to erect and maintain agricultural improvements, including but not limited to irrigation structures, temporary pervious farm roads, temporary hunting blinds and stands, temporary tunnels and crop covers, and vineyard, orchard, fruit and hops posts, trellises and wires, access drives with an impervious surface to provide access to the agricultural buildings and structures permitted by this Article and as are necessary for Commercial Agricultural Activities of the Property, and fences, including deer and livestock fencing, such as open mesh, railed or boarded fencing, provided such fences are placed and constructed so that they do not - 13 - materially impair the Conservation Values of the Property, including but not limited to the Property's scenic values. C. Allowable Non-Residential Utilities With Grantee's prior written approval and except as otherwise expressly prohibited herein, Grantor shall have the right to erect and maintain underground utility facilities(including for energy generation from renewable sources),such as utility transmission lines, wires, pipes, wells, drainage systems, sumps, septic systems, leaching fields, and other facilities, to service the agricultural buildings, structures, and improvements permitted on the Property under the terms of this Article. Grantee's approval of a proposed utility described in the previous sentence shall not be unreasonably withheld where the utility is to be used for Commercial Agricultural Activities or to control flooding or soil erosion on the Property. Utilities on the Property must, to the extent possible, be constructed within 30 feet of the centerline of roads or driveways, shall not negatively impact or degrade the Property's soils, agricultural production or open space, and may be used solely to service those agricultural buildings, structures and improvements permitted on the Property by this Amended and Restated Conservation Easement. D. Replacement of Agricultural Buildings, Structures,or Improvements In-Kind In the event of destruction of or damage to any existing or expressly permitted building, structure or improvement to such an extent that repair of such building, structure or improvement is impractical, erection of a replacement of comparable size, bulk, use, and general design to the destroyed or damaged building, structure or improvement is permitted within the same location subject to the review and prior written approval of Grantee. If such replacement is exactly the same size, bulk, use, and general design to the destroyed or damaged building, structure or improvement, Grantor may replace such building, structure or improvement without the prior written approval of Grantee. E. Environmental Sensitivity During Construction The location and use of any building, structure or improvement permitted to be constructed hereunder shall be consistent with the Conservation Purpose, and construction of any such improvement shall minimize disturbance to the Conservation Values and other natural resources of the Property. Grantor shall employ erosion and sediment control measures to ensure that storm water runoff will not carry eroded and other deleterious materials off of the Property, including but not limited to employing the least possible removal of vegetation, minimal movement of earth and minimal clearance of access routes for construction vehicles. 14- ARTICLE FOUR AFFIRMATIVE FARMING COVENANT 4.01 Agricultural Conservation Plan All Commercial Agricultural Activities on the Property shall be conducted in accordance with the Conservation Purpose and other terms and conditions of this Amended and Restated Conservation Easement and in consideration of an agricultural conservation plan ("Conservation Plan") prepared by or in consultation with the Natural Resources Conservation Service ("NRCS") utilizing the standards and specifications of the NRCS localized Field Office Technical Guide and approved by Grantee and the Suffolk County Soil and Water Conservation District. Within one hundred and twenty (120) days after the execution of this Amended and Restated Conservation Easement, Grantor will submit to Grantee a Conservation Plan prepared by or in consultation with the NRCS as outlined above for the Property for Grantee's confirmation and approval that such Conservation Plan is consistent with the terms of this Amended and Restated Conservation Easement. Upon Grantee's approval, such Conservation Plan will be incorporated herein by this reference, and a copy of such Conservation Plan will be appended to the Baseline Documentation. Grantor shall update the Conservation Plan at least every ten (10) years or sooner in the event of any proposed significant change to the existing Conservation Plan or any transfer of any interest in the Property (including a leasehold interest). Any subsequent update and/or amendment shall be prepared by or in consultation with the NRCS as outlined above and shall be submitted to Grantee within ten (10)days of issuance for Grantee's review and approval. 4.02 Abandonment of Agricultural Uses Grantor and Grantee intend that the Property shall be actively used for Commercial Agricultural Activities in perpetuity; however, Grantor and Grantee recognize that unforeseen events may necessitate that the Property be taken out of such use temporarily or that Grantor may, for whatever reason, wish to cease conducting Commercial Agricultural Activities on the Property. Land allowed to lay fallow pursuant to the express provisions of the Conservation Plan shall be deemed to be used for Commercial Agricultural Activities. If the Property is not used for Commercial Agricultural Activities on the Property for a period longer than one (1) year, Grantee shall have the right, but not the obligation and at its discretion, to notify Grantor of such fact ("Grantee Cessation Notice"). If Grantor fails to resume Commercial Agricultural Activities on the Property within six (6) months of the Grantee Cessation Notice, Grantee shall have the right, but not the obligation, to unilaterally invoke, by thirty (30) days' written notice to Grantor, the lease attached hereto as EXHIBIT B and incorporated herein by this reference ("Lease") for a term of not less than five (5) years to - 15 - restore, prepare and/or maintain the Property for future Commercial Agricultural Activities, to conduct Commercial Agricultural Activities itself, and/or to assign the Lease or sublease the Property to a Qualified Farmer pursuant to the terms of the Lease. For purposes of this Amended and Restated Conservation Easement, a "Qualified Farmer" is a person or legal entity that meets all of the following criteria: (i) whose aggregate agricultural operations meet the qualifications necessary to keep the Property enrolled in the NYS Agricultural District and the NYS Agricultural Assessment Program based on those qualification criteria existing at the time that eligibility as a Qualified Farmer is determined; and (ii) expects to devote sufficient time to conducting Commercial Agricultural Activities on the Property. Grantee's activities on the Property shall be consistent with the Lease, the Conservation Plan, and the Conservation Purpose and other terms and conditions of this Amended and Restated Conservation Easement; provided that the Conservation Plan may be amended to accommodate Grantee's and/or the Qualified Farmer's proposed Commercial Agricultural Activities so long as such amendment is made pursuant to the terms of Section 4.01 above. Grantee shall have the right to deduct from the rent owed under the Lease any costs associated with the implementation of any restoration, preparation, and maintenance of the Property for future Commercial Agricultural Activities and/or any costs incurred by Grantee related to any assignment or sublease of the Lease to a Qualified Farmer. Grantee shall make the determination of the qualification of a proposed operator or lessee as a Qualified Farmer in consideration of the above criteria and based upon such other factors including,but not limited to, the submission to Grantee of a business plan and evidence of demonstrated farming experience and/or training and any other factors Grantee deems significant to ensure that the Property remains in active agricultural production and used solely for agricultural purposes. The Parties agree that Grantee's remedies at law for any violation of Grantor's commitment to conduct Commercial Agricultural Activities on the Property as required by this Amended and Restated Conservation Easement are inadequate, and Grantee shall be entitled to specific performance of the commitment to conduct such use as required by this Amended and Restated Conservation Easement without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. This right is in addition to the right to injunctive relief, both prohibitive and mandatory, and such other relief to which Grantee may be entitled. Grantee's remedies described in this Section shall be cumulative and shall be in addition to any other remedies provided in this Amended and Restated Conservation Easement as well as in addition to all remedies now or hereafter existing at law or in equity. ARTICLE FIVE NOTICE AND APPROVAL 5.01 Notice and Approval - 16 - i 1 A. Requests for Approval of Certain Uses or Activities With respect to any use, activity, or cessation of use under Articles Two, Three and Four that requires the prior notice to, and/or approval of, Grantee, Grantor shall, in writing, provide notice to and/or request Grantee's approval and shall include therewith information identifying the proposed use, activity, or cessation of use and the reasons for and other details of the proposed use, activity, or cessation with reasonable specificity. The request for approval shall describe the nature, scope, location, timetable, and any other material aspect of the proposed activity (including, if appropriate, sketch plans or drawings of the site(s) 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 section under which approval is requested hereunder. Grantee's approval, which shall not be unreasonably withheld, shall take into account the following criteria, among other relevant factors: (i) The extent to which the proposed activity or use of the site for the proposed activity would materially impair the Conservation Values of the Property;and (ii) The extent to which the proposed activity or use of the site for the proposed activity is consistent with the Conservation Purpose. Notwithstanding the foregoing, Grantee's approval of a proposed site or activity shall be withheld if the use of the site for the proposed activity would materially impair the Conservation Values of the Property or would otherwise be inconsistent with the Conservation Purpose of this Amended and Restated Conservation Easement. B. Grantee's Response In accordance with Paragraph A of this Section, Grantee shall approve, conditionally approve or withhold approval of the proposed use or activity within forty-five (45) days of receipt of Grantor's written request therefor. Grantee agrees to evaluate Grantor's requests under this Amended and Restated Conservation Easement based on its good-faith exercise of professional judgment. Notwithstanding the foregoing, if in good faith Grantee requires more than forty-five (45) days to undertake a sufficient and thorough review of the documentation provided, or determines that it requires further documentation, Grantee shall so notify Grantor within the original forty-five (45) day period of the additional time and/or documentation required to respond to Grantor's request hereunder. At Grantee's sole and absolute discretion, Grantee may permit commencement of the activity less than forty-five (45) days after receiving Grantor's written notice. In the case of withholding of approval, Grantee shall notify Grantor in writing with reasonable specificity of the reasons for withholding of approval, and the conditions, if any, on which approval might otherwise be given. - 17- Failure of Grantee to deliver a written response to Grantor within such forty-five (45) days (as extended, as discussed above) shall be deemed to constitute written approval by Grantee of any request submitted for approval that is not contrary to the express provision hereof, including but not limited to the Conservation Purpose, and whose implementation would not materially impair the Property's Conservation Values. ARTICLE SIX GRANTOR'S OBLIGATIONS 6.01 Taxes and Assessments Grantor shall continue to pay all taxes, levies, and assessments and other governmental or municipal charges, which may become a Iien on the Property, including any taxes or levies imposed to make those payments. If Grantor fails to make any such payment within one (1) year of the final due date or earlier if such non-payment in any way may jeopardize Grantee's interest in this Amended and Restated Conservation Easement, Grantee is authorized to make such payments (but shall have no obligation to do so)upon ten (10) days' prior written notice to Grantor, according to any bill, statement or estimate procured from the appropriate public office without inquiry into the accuracy thereof. That payment, if made by Grantee, shall become a lien on the Property of the same priority as the item if not paid would have become, and shall bear interest until paid by Grantor at three(3)percentage points over the prime rate of interest from time to time charged by Citibank, N.A., or its corporate successor, in no event to exceed a legal interest rate. 6.02 Indemnification Grantor acknowledges that Grantee has neither possessory rights in the Property nor any responsibility nor right to control, maintain, or keep up the Property. Grantor has and shall retain all responsibilities and shall bear all costs and liabilities of any nature related to the ownership, operation, upkeep, improvement, and maintenance of the Property. Grantor hereby releases and agrees to hold harmless,indemnify and defend Grantee and its members, directors, officers, employees, legal representatives, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively "Indemnified Parties") from and against any and all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, orders, judgments, or administrative actions, including, without limitation, reasonable attorneys' fees, arising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due to the active negligent act or willful misconduct of Grantee or the Indemnified Parties, or if same occurs during access in violation of Section 7.01, or during the conduct of Commercial Agricultural Activities by Grantee or the Indemnified - 18- Parties; or (2) violation or alleged violation of, or other failure to comply with, any state, federal, or local law, regulation, or requirement by any person, other than Grantee, in any way affecting, involving, or relating to the Property. 6.03 Insurance Grantor shall keep the Property insured for a sufficient amount, as mutually determined by Grantor and Grantee, and subject to market availability, against loss from the perils commonly insured under standard fire and extended coverage policies and comprehensive general liability insurance against claims for personal injury,death, and property damage. Grantor shall deliver to Grantee proof of insurance annually or when coverage is renewed by Grantor. If Grantor fails to submit proof of insurance coverage annually or at the time of renewal, Grantor must deliver proof of coverage within 10 business days of Grantee's written request for documentation of coverage. Grantee shall have the right to provide insurance at Grantee's cost and expense, should Grantor fail to obtain same. In the event Grantee obtains such insurance, the cost of such insurance shall be a lien on the Property until repaid by Grantor. 6.04 Environmental Responsibilities Grantor Responsible for the Property. Grantor is solely responsible, and Grantee has no responsibility, for the operation of the Property or the monitoring of hazardous or other conditions thereon. Nothing in this Amended and Restated Conservation Easement shall be construed as giving any right or ability to Grantee to exercise physical or managerial control of the day-to-day operations of the Property or of Grantor's activities on the Property. Neither Grantee nor its agents shall be liable to Grantor or other person or entity in connection with approvals given or withheld, or in connection with any entry upon the Property, pursuant to this Amended and Restated Conservation Easement. Grantor's Environmental Warranty and Indemnity. Grantor represents and warrants that it has no actual knowledge of a release or threatened release of any Hazardous Materials, as defined below, on the Property and hereby promises to hold harmless, defend and indemnify the Indemnified Parties from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, orders, judgments, or administrative actions, including, without limitation, reasonable attorneys' fees, arising from or connected with the presence and/or any release of Hazardous Materials or violation of federal, state or local Environmental Laws, as defined below, on,under, or from the Property. This Amended and Restated Conservation Easement is not intended to and shall not create environmental liability in Grantee. Notwithstanding any other provision herein to the contrary, the Parties do not intend this Amended and Restated Conservation Easement be construed such that it imposes on, creates in or gives Grantee: - 19 - (a) The obligations or liability of an "owner" or "operator" as those words are defined and used in Environmental Laws, as defined below, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq., and hereinafter "CERCLA"); (b) The obligations or liability of a person described in 42 U.S.C.Section 9607(a)(3) or (4); (c) The obligations of a responsible person under any applicable Environmental Laws; (d) The right to investigate and remediate any Hazardous Materials associated with the Property; or (e) Any control over Grantor's ability to investigate, remove, remediate, or otherwise clean up any Hazardous Materials associated with the Property. The term "Hazardous Materials" includes, but is not limited to, (i) material that is flammable, explosive, or radioactive; (ii) petroleum products; and (iii) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials, including but not limited to those defined in CERCLA, the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.), the New York Environmental Conservation Law (NY ECL 27-0901) or any other Environmental Law, and in the regulations adopted and publications promulgated pursuant to them, or any other applicable federal, state, or local laws, ordinances, rules, or regulations now in effect or enacted after the Effective Date of this Amended and Restated Conservation Easement. The term "Environmental Laws" includes, but is not limited to,any federal,state or local or administrative agency statute, regulation, rule, ordinance, order or requirement now in effect or enacted after the Effective Date of this Amended and Restated Conservation Easement relating to pollution, protection of human health, the environment, or Hazardous Materials. 6.05 Acts Beyond Grantor's Control Nothing contained in this Amended and Restated Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Property resulting from natural causes beyond Grantor's control, including without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. - 20 - ARTICLE SEVEN GRANTEE'S RIGHTS 7.01 Entry and Inspection Grantee shall have the right to enter upon the Property for the purpose of inspection and monitoring, to determine whether this Amended and Restated Conservation Easement and its Conservation Purpose and other provisions are being upheld. Except in cases where Grantee determines, in its reasonable discretion, that immediate entry is required to investigate a use or condition on the Property in order to prevent, terminate, or mitigate a violation or potential violation of the terms of this Amended and Restated Conservation Easement, such entry shall be permitted only at reasonable times and upon prior notice to Grantor and shall be made in a manner that will not unreasonably interfere with Grantor's use and quiet enjoyment of the Property. Grantee shall not have the right to permit access upon the Property by the general public. 7.02 Protection and Restoration Grantee shall have the right to identify, to preserve and to protect in perpetuity the Conservation Values of the Property, including, but not limited to, by means of review and approval of improvements and activities as set forth in Article Five above. Grantee shall have the right to prevent any activity on or use of the Property that is inconsistent with the Conservation Purpose or other provisions of this Amended and Restated Conservation Easement and to require Grantor to restore such areas or features of the Property that may be damaged by any inconsistent and/or unpermitted condition, activity or use and to enforce these rights by any action or proceeding that Grantee may reasonably deem necessary. However, Grantor shall not be liable for any changes to the Property resulting from causes beyond Grantor's control as provided in Section 6.05 above. 7.03 Enforcement Rights of Grantee Grantor acknowledges and agrees that Grantee's remedies at law for any violation of this Amended and Restated Conservation Easement may be inadequate. Therefore, in addition to, and not in limitation of, any other rights of Grantee hereunder at law or in equity, in the event any breach, default or violation of any term, provision, covenant or obligation on Grantor's part to be observed or performed pursuant to this Amended and Restated Conservation Easement is not cured, or a bona fide attempt has not been begun by Grantor within fifteen (15) days of Grantor's receipt of Grantee's notice of such breach, default or violation (which notice requirement is expressly waived by Grantor with respect to any such breach, default or violation which, in Grantee's reasonable judgment, requires immediate action to preserve and protect any of the Conservation Values or otherwise to further the Conservation - 21 - Purpose of this Amended and Restated Conservation Easement), Grantee shall have the right at Grantor's sole cost and expense and at Grantee's election, (a) To institute a suit to enjoin or cure such breach,default or violation by temporary and/or permanent injunction and/or to require the restoration of that portion of the Property affected by such breach, default or violation to the condition that existed prior thereto; (b) To enter upon the Property and exercise reasonable efforts to terminate or cure such breach, default or violation and/or to cause the restoration of that portion of the Property affected by such breach, default or violation to the condition that existed prior thereto; and (c) To seek or enforce such other legal and/or equitable relief or remedies as Grantee deems necessary or desirable to ensure compliance with the terms, conditions, covenants,obligations and purposes of this Amended and Restated 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 obligation under this Amended and Restated Conservation Easement. Grantee's remedies described in this Section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. Grantor shall pay, either directly or by reimbursement to Grantee, all reasonable attorneys' fees and court costs and other expenses reasonably incurred by Grantee in connection with any proceedings initiated under this Section. 7.04 No Waiver Grantee's exercise of one remedy or relief under this Article Seven shall not have the effect of waiving or limiting any other remedy or relief, and the failure to exercise or delay in exercising any remedy shall not have the effect of waiving or limiting the use of any other remedy or relief or the use of such other remedy or relief at any other time. 7.05 Grantor's Waiver of Certain Defenses Grantor hereby waives any defense of laches, estoppel, or prescription, and/or any defense or argument that any portion of this Amended and Restated Conservation Easement constitutes a restraint on alienability or is otherwise contrary to public policy for any reason. -22- } Grantor acknowledges that it has read and understands the provisions of this Section above and by initialing immediately below agrees to be bound by its terms. _ Grantor's Initials 7.06 Assignability Grantee shall have the right to assign any and all of its rights and responsibilities under this Amended and Restated Conservation Easement and any and all of its rights, title and interest in and to this Amended and Restated Conservation Easement only to a qualified organization (herein called the "Assignee"). As used herein the term "qualified organization" means a not-for-profit corporation, or a governmental unit or agency, which is qualified to receive such interests pursuant to Article 49 of the New York Environmental Conservation Law, and is a qualified organization within the meaning of Section 170(h)(3) of the Code, and which is organized or operated primarily or substantially for one of the conservation purposes specified in Section 170(h)(4)(A)of the Code. Any assignment by Grantee or a successor Grantee must require, and the Assignee must agree, that the Assignee and Assignee's successors will carry out the purposes of, and enforce,this Amended and Restated Conservation Easement.The Assignee and its successors and assigns shall have the same right of assignment, subject to compliance with the provisions of this Section. Grantee shall consult with Grantor as to the proposed Assignee and promptly notify Grantor of the completion of any such assignment. 7.07 Succession If at any time Grantee is unable to enforce this Amended and Restated Conservation Easement, or if Grantee ceases to exist or ceases to be a qualified organization under Section 170(h)(3) of the Code, then this Amended and Restated Conservation Easement shall be vested in such qualified corporation, body or agency as defined and upon the conditions and limitations contained in Section 7.06 above as Grantee shall designate. If, on the occurrence of any of these events, Grantee fails to assign all of its rights and responsibilities under this Amended and Restated Conservation Easement and all of its rights, title and interest in and to this Amended and Restated Conservation Easement to a qualified organization, then the rights and responsibilities under this Amended and Restated Conservation Easement shall become vested in another qualified organization, in accordance with a cy pres proceeding brought in any court of competent jurisdiction. Grantor will be notified of any such proceeding. 7.08 Extinguishment This Amended and Restated Conservation Easement restates and confirms the property right and interest vested in Grantee as of the effective date of the grant of the Original Conservation Easement. For purposes of this Section 7.08, the fair market value of such right and interest shall be equal to the difference, as of the effective date of the Original Conservation Easement, between the fair market value of the Property subject to the Original Conservation Easement and the fair market value of the Property if unencumbered thereby (such difference, -23- divided by the fair market value of the Property unencumbered by the Original Conservation Easement, is hereinafter referred to as the "Proportionate Share"). The Parties have included evidence of such fair market values with the Baseline Documentation of the Property (on file at Grantee's offices) from which the Proportionate Share may be determined in accordance with this Section 7.08, and shall amend such ratio, if necessary, to reflect any final determination of values by the Internal Revenue Service or court of competent jurisdiction. For purposes of this Section, the Proportionate Share shall remain constant, and the percentage interests of Grantor and Grantee in the fair market value of the Property thereby determinable shall remain constant. If circumstances arise in the future that render the Conservation Purpose of this Amended and Restated Conservation Easement impossible or impracticable to accomplish, this Amended and Restated Conservation Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction and in accordance with the common and statutory laws of the State of New York. In the event of an extinguishment or partial extinguishment of this Amended and Restated Conservation Easement, Grantor shall pay Grantee an amount equal to the Proportionate Share of the then-fair market value of the Property (or affected portion thereof) unencumbered by this Amended and Restated Conservation Easement (minus any amount attributable to the value of improvements made by Grantor after the effective date of the Original Conservation Easement) at the time of the extinguishment. The Property's then-fair market value shall be established by an arm's length sale of the Property (or such portion of which as to which this Amended and Restated Conservation Easement is extinguished) consummated within ninety (90) days of the extinguishment, subject to Grantee's approval of the sale price as fairly representing the then-fair market value of the Property; or, if no sale takes place within such time frame, the Property's then-fair market value shall be determined by an independent appraisal by a "qualified appraiser," as defined in Treasury Regulations Section 1.170A-13(c)(5), who is mutually agreeable to Grantor and Grantee, the cost of which appraisal shall be borne by Grantor. Grantor shall make such payment to Grantee upon the closing of a sale of the Property (or affected portion thereof) consummated within ninety (90) days of the extinguishment; or, if no sale takes place within such time frame, within ninety (90) days of the extinguishment. If all or any part of the Property is taken under the power of eminent domain by public, corporate, or other authority, or otherwise acquired by such authority through a purchase in lieu of a taking, so as to abrogate the restrictions imposed by this Amended and Restated Conservation Easement or otherwise effectively to frustrate the Conservation Purpose hereof, Grantor and Grantee shall join in appropriate proceedings at the time of such taking to recover the full value of their respective interests in the Property subject to the taking and all incidental or direct damages resulting from the taking. Grantee shall be entitled to its Proportionate Share of the then-fair market value of the Property and all incidental or direct damages resulting from the taking. All expenses reasonably incurred by the Parties to this Amended and Restated -24- Conservation Easement in connection with such taking shall be paid out of the respective party's recovered proceeds. Grantee shall use such proceeds actually recovered by it in a manner consistent with the Conservation Purpose of this Amended and Restated Conservation Easement. The respective rights of Grantor and Grantee set forth in this Section 7.08 shall be in addition to, and not in limitation of, any rights they may have by law with respect to a modification or termination of this Amended and Restated Conservation Easement by reason of changed conditions or the exercise of the power of eminent domain as aforesaid. In making this grant of Amended and Restated Conservation Easement, however, Grantor has considered the possibility that uses prohibited by the terms of this Amended and Restated Conservation Easement may become more economically viable than the uses specifically reserved by Grantor pursuant to this Amended and Restated Conservation Easement. It is the intent of both Grantor and Grantee that any such change in economic conditions shall not be deemed to be circumstances justifying the termination or extinguishment of this Amended and Restated Conservation Easement pursuant to this Section. ARTICLE EIGHT MISCELLANEOUS 8.01 Alienability Grantor shall have the right to convey, mortgage or lease all of its remaining interest in the Property but only subject to the terms of this Amended and Restated Conservation Easement. Grantor shall promptly notify Grantee of any conveyance of any interest in the Property, including the full name and mailing address of any transferee, and, in the case of a transfer to an entity, the individual principals thereof. The instrument of any such conveyance shall specifically set forth that the interest thereby conveyed is subject to this Amended and Restated Conservation Easement, without modification or amendment of the terms of this Amended and Restated Conservation Easement, and shall incorporate this Amended and Restated Conservation Easement by reference, specifically setting forth the date, office, liber and page of the recording hereof. The failure of any such instrument to comply with the provisions hereof shall not affect Grantee's rights hereunder or the validity of this Amended and Restated Conservation Easement. 8.02 Entire Understanding This Amended and Restated Conservation Easement contains the entire understanding between its Parties concerning its subject matter. Any prior agreement between the Parties concerning its subject matter shall be merged into this Amended and Restated Conservation Easement and superseded by it. - 25- 8.03 Amendment This Amended and Restated Conservation Easement is made with the intention that it shall qualify as a conservation easement in perpetuity under Code Section 170(h) and Article 49, Title 3 of the Environmental Conservation Law of the State of New York. The Parties agree to amend the provisions of this Amended and Restated Conservation Easement if such amendment shall be necessary to entitle Grantor to meet the requirements of Code Section 170(h) and/or to enable Grantee to amplify the public benefits attributable to this Amended and Restated Conservation Easement. Any such amendment shall be permitted only upon Grantee's determination, in its sole discretion, that such amendment will not jeopardize Grantee's status as an organization described in Code Sections 170(h)(3) and 501(c)(3). This Amended and Restated Conservation Easement can be amended and modified only in accordance with the common and statutory laws of the State of New York applicable to the modification of easements and covenants running with the land. Grantee and Grantor shall mutually have the right to agree to amendments to this Amended and Restated Conservation Easement, provided, however, that Grantee shall have no right or power to agree to any amendment hereto that would result in this Amended and Restated Conservation Easement failing to qualify as a valid conservation easement under Article 49,Title 3 of the Environmental Conservation Law of the State of New York, as the same may be hereafter amended, or any regulation issued pursuant thereto. No amendment may be approved by Grantee that would or, as Grantee in its judgment may determine, could violate the rules of impermissible private benefit or of private inurement under applicable sections of the Code, including but not limited to Code Section 501(c)(3). 8.04 Severability Any provision of this Amended and Restated Conservation Easement restricting Grantor's activities which is determined to be invalid or unenforceable by a court of competent jurisdiction shall not be invalidated. Instead, that provision shall be reduced or limited to whatever extent that court determines will make it enforceable and effective. Any other provision of this Amended and Restated Conservation Easement that is determined to be invalid or unenforceable by a court of competent jurisdiction shall be severed from the other provisions, which shall remain enforceable and effective. 8.05 Notice All notices required by this Amended and Restated Conservation Easement must be written. Notices shall be delivered by hand; by express, certified or registered mail, return receipt requested; by certified mail, with sufficient prepaid postage affixed and with return receipts requested; or through courier delivery by a national courier service that provides automated delivery tracking. Notices to Grantor shall be addressed to Grantor's address as recited herein, or to such other address as Grantor may designate by notice in accordance with -26 - this Section. Notice to Grantee shall be addressed to its principal office, as recited herein, marked for the attention of the President, or to such other address as Grantee may designate by notice in accordance with this Section. Notice shall be deemed given and received as of the date of its actual delivery to the recipient. 8.06 Governing Law New York law applicable to deeds and conservation easements pertaining to land located within New York shall govern this Amended and Restated Conservation Easement in all respects, including validity, construction, interpretation, breach, violation and performance, except as otherwise provided in Section 8.07 hereof. 8.07 Interpretation Regardless of any contrary rule of construction, no provision of this Amended and Restated Conservation Easement shall be construed in favor of one of the Parties because it was drafted by the other party or the other party's attorney. No alleged ambiguity in this Amended and Restated Conservation Easement shall be construed against the party which drafted it, or against the party whose attorney drafted it. If any provision of this Amended and Restated 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 interpretation as would render it valid and consistent with the Conservation Purpose of this Amended and Restated Conservation Easement. Any rule of strict construction designed to Iimit the breadth of the restrictions on use of the Property shall not apply in the construction or interpretation of this Amended and Restated Conservation Easement, and this Amended and Restated Conservation Easement shall be interpreted broadly to effectuate the Conservation Purpose of this Amended and Restated Conservation Easement as intended by the Parties. The Parties intend that this Amended and Restated Conservation Easement, which is by nature and character primarily negative in that Grantor has restricted and limited its right to use the Property, except as otherwise recited herein, be construed at all times and by all Parties to effectuate its purposes. 8.08 Public Access Nothing contained in this Amended and Restated Conservation Easement grants, nor shall be interpreted to grant, to the general public any right to enter upon the Property. 8.09 Warranties The warranties and representations made by the Parties in this Amended and Restated Conservation Easement shall survive its execution. - 27- 8.10 Recording Grantee shall record this Amended and Restated Conservation Easement in the land records of the office of the Clerk of the County of Suffolk, State of New York, and shall forward a copy of the recorded easement to the New York State Department of Environmental Conservation. 8.11 Enforceable Restriction;Successors The covenants, terms, conditions, and restrictions of this Amended and Restated Conservation Easement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective personal representatives, agents, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property. The terms "Grantor" and "Grantee," whenever used herein, and any pronouns used in place thereof, shall include, respectively, the above-named Grantor and its representatives, agents,licensees, successors, and assigns, and the above-named Grantee and its successors and assigns. 8.12 Termination of Rights and Obligations A party's rights and obligations under this Amended and Restated Conservation Easement terminate upon transfer of the party's interest in the Amended and Restated Conservation Easement or the Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 8.13 Headings The headings, titles and subtitles herein have been inserted solely for convenient reference, and shall be ignored in its construction. 8.14 Counterparts Grantor and Grantee may execute this instrument in two or more counterparts; each counterpart shall be deemed an original instrument. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. [Signatures to follow on next page.] -28- IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted and received this Amended and Restated Deed of Conservation Easement on the day and year set forth above. GRANTOR WALKER/MC,e. LL, LLC 1 BY: S,c f/ Ca. ii(Russe QVIcCalI Manager GRANTEE PECONI ND TRUST, INCORPORATED BY: 4 II Iri +I by J Caufield Vice 'resident STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: 14 On this T Gay of December in the year 2015 before me, the undersigned, personally appeared Russell C.McCall, 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 indivi. .l(s), or the person upon behalf of which the individual(s) acted, executed the instrun .nt. r . __air i !•d Notary Public DONNA McGAHAN Notary Public, State of New York No. 01MC4851459 Qualified in Suffolk County Commission Expires Aug. 18, 201$ STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS: On this ll day of-44 in the year 2016 before me, the undersigned, personally appeared rrn o- J• Cau 2icl ,personally known to me or proved to me on the basis of satisfactoryidence 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. a,,A Notary Public PATRICIA L. FALLON Notary Public,State Of New York No. 01FA4950146 • Qualified in Suffolk County9 STATE OF NEW YORK Commission Expires April 4, .40! COUNTY OF SUFFOLK ) SS: On this day of in the year 20_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 SCHEDULE A: Legal Description of the Property EXHIBIT A: Conservation Easement Map of the Property EXHIBIT B: Agricultural Lease between Grantor and Grantee - 30- SCHEDULE A ALL that certain plot, piece or parcel of land with the buildings and improvements thereon erected, situate, lying and being at Cutchogue, in the Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the southerly side of Main Road (NYS Route 25) at the northeast corner of the premises herein described; said point being 175 feet westerly as measured along the said southerly side of Main Road(NYS Route 25) from the northwesterly corner of land now or formerly of Dickerson; said point also marking the northwest corner of lands now or formerly of John and Anne Elak as contained in deed Liber 7934 page 481; from said point of beginning RUNNING THENCE along said land now or formerly of John and Anne Elak the following two (2) courses and distances: South 06 degrees 44 minutes 37 seconds East, 276.18 feet; North 81 degrees 09 minutes 13 seconds East, 85.21 feet; THENCE along land now or formerly of John and Anne Elak and along land now or formerly of Frances J. Bogut and John F. Bogut and along lands now or formerly of James F. Brush and Nancy J. Brush, Gerard Shaw and Susan Shaw and Anthony Lauro and Patricia Lauro, South 02 degrees 18 minutes 57 seconds East, 1,759.54 feet to the northerly side of New Suffolk Avenue; THENCE northwesterly and westerly along New Suffolk Avenue the following two (2) courses and distances: North 65 degrees 10 minutes 37 seconds West, 75.12 feet; South 83 degrees 11 minutes 30 seconds West, 593.63 feet to land now or formerly of Alma T. Suter; THENCE northwesterly along said land North 02 degrees 07 minutes 26 seconds West, 1,721.34 feet to other land now or formerly of John and Anne Elak; THENCE along said land the following two(2)courses and distances: North 83 degrees 22 minutes 44 seconds East, 125.00 feet; North 02 degrees 07 minutes 26 seconds West, 275.00 feet to the southerly side of Main Road (NYS Route 25); THENCE easterly along said southerly side of Main Road (NYS Route 25) North 83 degrees 22 minutes 44 seconds East, 422.54 feet to the point or place of BEGINNING. 31 • EXCEPTING THEREFROM THE FOLLOWING RESERVED AREA: ALL that certain plot, piece or parcel of land with the buildings and improvements thereon erected, situate, lying and being at Cutchogue, in the Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the southerly side of Main Road (NYS Route 25) at the northeast corner of the premises herein described; said point being 175 feet westerly as measured along the said southerly side of Main Road (NYS Route 25) from the northwesterly corner of land now or formerly of Dickerson; said point also marking the northwest corner of lands now or formerly of John and Anne Elak as contained in deed Liber 7934 page 481; from said point of beginning RUNNING THENCE along said land now or formerly of John and Anne Elak the following two (2) courses and distances: South 06 degrees 44 minutes 37 seconds East, 276.18 feet; North 81 degrees 09 minutes 13 seconds East, 85.21 feet; THENCE South 02 degrees 18 minutes 57 seconds East, 25.17 feet; THENCE South 81 degrees 09 minutes 13 seconds West, 108.28 feet; THENCE North 06 degrees 44 minutes 37 seconds West, 302.17 feet to the southerly side of Main Road(NYS Route 25); THENCE easterly along said southerly side of Main Road(NYS Route 25) North 83 degrees 22 minutes 44 seconds East, 25.00 feet to the point or place of BEGINNING. • 31a. 1 i-i- A 4,©nsertZor EA52rn-emi f ' I . , �sumer o�PROPERTY -�.._._ ._.w . � 15MATMMATTITTUCK n.0 r+ / 1i 70VN, 500114041, �a• w�j�E SUFFOLK=tiff.NY +' 1- ei-ua.!w,...9 -•'---- *1/4 ,�� 5 i!V'*OLO WATT IA". �_ ,• ti+ ¢[, nariuuau 1--...-.'---. e1,y1 4 : 0 11 r tm000m ' S SriR lourommoromo 3i 8q1 y 1 121910-111111 40 j'i F p t i1 U6 !vE u is 1o, v}'.ter • i n MB . 0.0.0141 t I .111 •i I . i i ,�.. t :'.1•.1 • '���srrrit of vowpprod ,�a; 'm"�Proposed C.ormilmt—_a*!e mg 101101Suab� �Ti 7424 0 Of../e5.or InW,G47 Or. E I'm- A! I_ €e 3 5 Ti17 i i s �1 • • — i! � .. lil ' y 1 i ‘L`-. 4rei • • .a..refMAN, ., _ Seng A�cm ' ;� New .t -_ w,v1•y.' l u.>ab4 S.tom JOHN C.EHLERS LAND SURVEYOR .[. '.,CO• f iA TWOONi>iECI KYIIIG}IQ JO= , p1E p,1lY110 !611111Na2I04711 ILIP1IloamoV91 rEO}SLp ' , . 3Z • EXHIBIT B • • Agricultural Lease between Grantor and Grantee THIS LEASE ("Lease"), dated in„,,d, ,q 20j (for reference purposes only), is by and between WALKER/MCCALL, LLC, c/o Russell McCall, whose address is P.O. Box 271, Cutchogue, New York 11952 (herein called "Lessor"), and the PECONIC LAND TRUST, INCORPORATED, a not-for-profit New York corporation, having offices at 296 Hampton Road, P.O.Box 1776, Southampton, New York 11969 (hereinafter called "Lessee"). WHEREAS, Lessor is the owner of that certain real property located at 20730 Route 25, Mattituck, Town of Southold, County of Suffolk, State of New York, SCTM# 1000-115-8-3.5 & 3.6, more particularly bounded and described in "SCHEDULE A," which is attached to that certain Amended and Restated Conservation Easement defined and described below and incorporated herein by this reference (the "Property"). Lessee holds a conservation easement ("Amended and Restated Conservation Easement") on the Property, which Amended and Restated Conservation Easement is recorded at Liber and Page in the official records of Suffolk County, New York, and which Amended and Restated Conservation Easement, including all of its schedules, exhibits, and other attachments, is hereby incorporated herein by this reference; and WHEREAS, in the Amended and Restated Conservation Easement, Lessor, as owner of the Property, covenanted and agreed that, if Lessor failed, for any reason, to keep the Property in active commercial agricultural production for a period of two(2) consecutive years(or earlier if Lessor notified Lessee that Lessor no longer intended to conduct active commercial agricultural operations on the Property), and Lessor did not timely enter into an agricultural lease with a farmer pursuant to the terms of the Amended and Restated Conservation Easement, Lessee had the right to unilaterally invoke this Lease pursuant to the terms hereof as well as to assign this Lease or sublet all or a portion of the Property, at Lessee's sole discretion, to any farmer (i) who agrees to conduct Commercial Agricultural Activities (as that terms is defined in Section 3.01 of the Amended and Restated Conservation Easement) on the Property in compliance with all applicable laws and ordinances and the terms and conditions of the Amended and Restated Conservation Easement, including but not limited to conducting sound agricultural practices as provided in Section 3.01 of the Amended and Restated Conservation Easement and in consideration of an approved Conservation Plan as described in Section 4.0] of the Amended and Restated Conservation Easement (as such Conservation Plan may be amended pursuant to the terms of such section); (ii) whose aggregate agricultural operations meet the qualifications necessary to keep the Property enrolled in the NYS Agricultural District and the NYS Agricultural Assessment Program; and (iii) who expects to devote sufficient time to engaging in active Commercial Agricultural Activities on the Property ("Qualified Farmer"); and • -33- i WHEREAS, Lessor has ceased Commercial Agricultural Activities on the Property for a period of two (2) consecutive years (or, as applicable, Lessor has notified Lessee that Lessor no longer intends to conduct Commercial Agricultural Activities on the Property), and Lessee has notified Lessor that Lessee intends to invoke this Lease pursuant to the terms of the Amended and Restated Conservation Easement. NOW, THEREFORE, for and in consideration of their mutual covenants, agreements, and undertakings hereinafter set forth, Lessor and Lessee agree as follows: 1. Lease. Lessor and Lessee agree that this Lease will be deemed fully effective and valid on the date that Lessor receives Lessee's written notification that the circumstances upon which Lessee is entitled to invoke this Lease have occurred and that Lessee intends to invoke this Lease ("Lessee's Notice of Intent to Lease"); provided that, during the Term(as defined below) of this Lease, Lessee shall not use the Property or any part thereof for any purpose other than the purpose(s) stated in this Lease or in violation of the Amended and Restated Conservation Easement or any applicable law or ordinance. In Lessee's Notice of Intent to Lease, Lessee shall provide the Annual Fair Market Value of this Lease (as defined and further described.in Section 3 below) and all data and information that Lessee relied upon to calculate same. 2. Term. The term of this Lease shall commence on the date of Lessor's receipt of Lessee's Notice of Intent to Lease ("Effective Date"), regardless of the date of Lessee's actual entry, and shall run for a period of five (5) consecutive years ("Initial Term"). Said Lease shall renew automatically at the end of each five (5)-year term for an additional five (5) years so long as Lessee is in full compliance with all of the covenants and conditions contained in this Lease, unless (i) Lessee notifies Lessor of Lessee's intent to terminate this Lease, which notice must be given in writing not less than ninety (90) days prior to date of termination of any existing term or (ii) Lessor notifies Lessee of Lessor's intent to terminate this Lease, which notice must be given in writing not less than ninety (90) days prior to date of termination of any existing term and provided that Lessor may only so terminate if Lessor intends to conduct, and within three (3) months of said termination actually commences conducting, Commercial Agricultural Activities on the Property in compliance with all applicable laws and ordinances and the terms and conditions of the Amended and Restated Conservation Easement, including but not limited to conducting sound agricultural practices as provided in Section 3.01 of the Amended and Restated Conservation Easement and in consideration of an approved Conservation Plan as described in Section 4.01 of the Amended and Restated Conservation Easement (as such Conservation Plan may be amended pursuant to the terms of such section). The Initial Term and any succeeding five-year term complying with the terms of this Section shall be referred to herein as the"Term" of this Lease. 3. Lease Payment. Lessee agrees to pay annually as rent the sum equal to the "Annual Fair Market Value" of this Lease as of the Effective Date.The Annual Fair Market Value of this Lease shall be determined according to the following method: (i) Lessee shall compile annual rental - 34- rates of three (3) agricultural leases currently in effect from the nearest similar agricultural operations to the Property; (ii) those rental rates shall be divided by the respective number of acres subject to such other agricultural leases, which will produce a per-acre rate for each lease; (iii) those three per-acre rental rates shall be averaged and rounded to the nearest whole dollar; and (iv) such average shall be multiplied by the number of acres subject to this Lease, thereby producing the Annual Fair Market Value of this Lease. This Annual Fair Market Value may not be disputed by Lessor so long as Lessee has satisfied the terms of this Section. [For illustrative purposes only, if the number of acres subject to this Lease is 100, and Lessee compiles the following annual rental rates for the leases on the three nearest farming operations then in effect, the Annual Fair Market Value of this Lease would be$12,800/year, calculated as follows: Farm A:$4,200 (40 acres):$105/acre Farm B: $5,000(50 acres): $100/acre Farm C: $3,600(20 acres):$180/acre Average: $128/acre *100 acres=$12,800/year=Annual Fair Market Value] The Annual Fair Market Value shall be paid by Lessee either(i) on an annual basis on or before the first day of each year of the Term;or(ii) on a monthly basis on or before the first day of each month of the Term (with the first month's rent of the Initial Term and last month's rent of any unextended Term to be prorated based on a 30-day month). The Annual Fair Market Value shall be adjusted every five (5) years according to the method provided in this Section. Any other payment arrangement shall require the prior written approval of Lessee and Lessor. Upon assignment of this Lease or sublease of the Property as provided in Section 4 below, Lessee shall keep records of all expenses related to such assignment or subleasing and may deduct those expenses from the annual rent payment. 4. Assignment/Sublease. Lessee may freely assign this Lease or sublet all or a portion of the Property to a Qualified Farmer at any time during the Term without any prior notice to or consent of Lessor and in Lessee's sole and absolute discretion; provided that Lessee shall provide written notice to Lessor of any such assignment or sublease and the identity of the Qualified Farmer sublessee within thirty (30) days of executing such assignment or sublease. Lessee shall provide a full copy of the Amended and Restated Conservation Easement to such sublessee upon the execution of any such assignment or sublease of this Lease by Lessee pursuant to this paragraph. 5. Utilities; Taxes. Lessor shall continue to pay all charges for heat, electricity, gas, telephone, water, trash collection, sewer and all other utilities, if any, servicing the portion of the Property utilized by Lessor during the Term of the Lease, if applicable, and shall continue to pay existing real property taxes and customary increases, except for any increases attributable to Lessee's activities on, or improvements to, the Property. Lessee shall be solely responsible for the - 35- • payment of any personal property taxes levied on the personal property owned by Lessee and used on the Property. 6. Permitted Agricultural Operations. Lessee may use the Property only for the conduct of Commercial Agricultural Activities, which include but are not limited to restoration, preparation and/or maintenance of the Property for future Commercial Agricultural Activities or the conduct of Commercial Agricultural Activities itself. Notwithstanding the foregoing, Lessee may conduct, at its discretion, any Commercial Agricultural Activities on the Property that are in compliance with all applicable laws and ordinances and the terms and conditions of the Amended and Restated Conservation Easement, including but not limited to conducting sound agricultural practices as provided in Section 3.01 of the Amended and Restated Conservation Easement and in consideration of an approved Conservation Plan as described in Section 4.01 of the Amended and Restated Conservation Easement (as such Conservation Plan may be amended pursuant to the terms of such section). Lessee shall be solely responsible for the cost of all materials, equipment, and labor required to conduct Commercial Agricultural Activities on the Property, including but not limited to sprays, trellises and other infrastructure and inputs. 7. Future Improvements. Lessee may make such improvements to the Property as are reasonably necessary for the permitted agricultural operations on the Property, provided that any such improvement shall comply with the terms and conditions of the Amended and Restated Conservation Easement as well as any applicable law and regulation, whether municipal, state and/or federal, now in force, or which may hereafter be in force, pertaining to the Property and Lessee's use and occupancy thereof.Any cost and expense incurred as a result of the improvements shall be paid by Lessee. Lessee shall keep the Property free of mechanic's liens. 8. Maintenance; Storage; Dumping. Lessee shall maintain all portions of the Property in a reasonable state of cleanliness and orderly condition, free from trash, waste and debris; provided, however, that the deposition of organic materials used on the Property for, or resulting from, the conduct of Commercial Agricultural Activities that are conducted in accordance with this Lease and Section 3.01 of the Amended and Restated Conservation Easement is permitted. Lessee may store and/or deposit material and equipment about the Property on a temporary basis in accordance with sound agricultural practices and in consideration of an approved Conservation Plan as described in Section 4.01 of the Amended and Restated Conservation Easement (as such Conservation Plan may be amended pursuant to the terms of such section). 9. Hazardous Substances. Lessee shall not install, store, treat, use, transport, or otherwise dispose of any hazardous materials on, under, above, or in the Property unless such use, storage, and transportation is in compliance with all applicable laws. As used in this Lease, the term "hazardous substances" means any substance, material, or waste now or hereafter determined by any federal, state, or local governmental authorities to be capable of posing a -36- R risk of injury to health, safety, or property, including, but not limited to, any substance, material, or waste: (i) containing asbestos, radioactive materials, petroleum, petroleum fractions, or petroleum distillates; (ii) now or hereafter defined as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," or "restricted hazardous waste" under any provision of New York law; (iii) now or hereafter defined as "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §6903; or (iv) now or hereafter defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),42 U.S.C. §9601 et seq. 10. Indemnification; Insurance. Lessee shall indemnify, defend, and hold harmless Lessor from any and all claims, demands, lawsuits or judgments arising out of the use of the Property during the Term of this Lease. Lessee agrees to carry and maintain at its own cost and expense throughout the entire term of this Lease a policy or policies of insurance, in which Lessor shall be named as an additional insured, insuring against death or injury to persons and damage to property in an amount not less than $2,000,000.00 combined single limit for both bodily injury and property damage liability type claims. Prior to taking possession of the demised Property, Lessee shall deliver to Lessor a certificate of the insurance company issuing such insurance, evidencing such coverage. 11. Default. In the event Lessee defaults in performing or observing any of the covenants or conditions of this Lease and does not cure such default within thirty (30) days of Lessee's receipt of written notice thereof by Lessor (or within ten (10) business days for defaults involving Lessee's failure to maintain insurance coverage as required by the terms of this Lease), or under circumstances where the default cannot reasonably be cured within a thirty (30)-day period, fails to begin curing the violation within the thirty (30)-day period, or does not continue diligently to cure the failure until finally cured, Lessor may, at Lessor's option, terminate and cancel this Lease, re-enter the Property and dispossess Lessee and remove its effects and take possession of the Property and hold the same as if this Lease had not been made. 12. No Waiver. The failure of Lessor to insist upon the strict performance of any of the terms, conditions, and covenants herein shall not be deemed a waiver of any right or remedy that Lessor may have and shall not be deemed a waiver of any subsequent breach or default in the terms, conditions and covenants herein contained. 13. Quarantine. Lessee shall not be required to pay rent for any portion of the Property during any such time that such portion of the Property is quarantined by New York State, Suffolk County, or similar governmental agency. In such event, the annual rent shall be proportioned based upon the area of the Property quarantined and the number of days the quarantine remains in effect. -37- 14. Notice. Any bill, statement, or notice that either party desires to give or is required to be given by the terms of this Lease shall be made in writing and delivered or mailed to the intended recipient at the parties' respective addresses shown on the first page of this Lease (or to such other address as such party may designate to the other pursuant to the terms of this Section). Said notice will be considered delivered on the day it is mailed, if applicable, or if not mailed, when actually delivered to the recipient at the proper address. Any such notice shall be delivered personally; sent by certified U.S. mail, return receipt requested, with sufficient postage prepaid;or sent by a reputable overnight delivery service. A copy of any such notice to Lessor shall be sent to Abigail A. Wickham, 13015 Main Road, P.O. Box 1424, Mattituck, New York 11952, by first-class U.S. mail, postage prepaid, and by email to awickham@wbglawyers.com, or to such other address as is provided by the notice requirements herein. 15. Amendment. This Lease may be amended only by an agreement in writing signed by the parties to this Lease. 16. Termination. In addition to other events of termination provided for in this Lease, this Lease may also be terminated at any time upon mutual consent of Lessor and Lessee. 17. Surrender of Property. Upon the expiration or termination of this Lease, Lessee shall quit and surrender the Property to Lessor. On termination or expiration, Lessee shall have the right to remove personal property at its expense and shall have sixty (60) days after the expiration of the Lease in which to remove any or all of said personal property; provided, however, that no improvements which are affixed to or under the Property may be removed without Lessor's consent, not to be unreasonably withheld or delayed. If Lessee fails to remove all said personal property within 60 days after expiration of the Lease, then that personal property not removed shall be deemed abandoned by Lessee and title to that property may be retained by Lessor. 18. Eminent Domain. If the whole or any part of the Property is acquired or condemned by eminent domain for any public or quasi-public use or purpose, then the terms of this Lease shall terminate from the date of title vesting in such condemning entity, and Lessee shall have no claim against Lessor for the value of any unexpired Term of this Lease. 19. Lien. This instrument shall not be a lien against said Property in respect to any mortgages that hereafter may be placed against said Property and that the recording of such mortgage or mortgages shall have preference and precedence and be superior and prior in lien to this Lease, irrespective of the date of recording, and Lessee agrees to execute any such instrument, without cost, which may be deemed necessary or desirable to further effect the subordination of this Lease to any such mortgage or mortgages. 20. No Broker. Each party represents to the other that no broker brought about the signing of this Lease. in the event any person asserts a claim for a broker's commission or finder's fee, the -38- party on account of whose conduct or actions the claim is asserted will indemnify, defend and hold the other party harmless from said claim. 21. Lease Runs with the Property. This Lease and all its terms shall run with the Property and shall survive a sale of the Property by Lessor. 22. Successors and Assigns. The covenants, conditions, and agreements contained in this Lease shall bind and inure to the benefit of Lessor and Lessee and their respective heirs, successors, and permitted assigns. 23. Entire Agreement. Any prior negotiations, oral representations, or statements made by either Lessor or Lessee are merged into this Lease. All prior claims, counter-claims, defenses, or actions are extinguished upon execution of this Lease. This Lease contains and fully integrates the entire agreement between the parties, and it shall not be modified in any manner except by an instrument in writing executed by the parties. If any term or provision of this Lease or the application of this Lease to any person or circumstances shall, to any extent, be determined to be invalid or unenforceable, the remainder of this Lease, or the application of such Lease's terms or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and each remaining term and provision of this Lease shall be valid and shall be enforced to the fullest extent permitted by law. 24. Construction. This Lease shall be governed by and construed under the laws (statute and common) of the State of New York. Paragraph headings and summaries are for convenience only. In no event shall any such title or caption be deemed to be part of this Lease or interpretive of any of its language or intent. No provision of this Lease is to be interpreted for or against either party because that party or that party's legal representative drafted this Lease or any of its provisions. Words of any gender in this Lease shall be held to include any other gender, and words in the singular number shall be held to include the plural when the sense requires. 25. Time of Essence. Time is of the essence in this Lease and all the provisions relating to timely performance shall be strictly construed. 26. Attorneys' Fees. In the event of litigation arising out of or concerning this Lease, the prevailing party shall be entitled to recover, in addition to any other available remedy, its reasonable attorneys' fees. 27. Bankruptcy Filing. In the event Lessee files for bankruptcy protection, or a petition in bankruptcy is filed against Lessee, Lessee agrees to move within five (5) business days of such filing to assume or reject the Lease. Failure to so move will be a default under the Lease pursuant toll U.S.C.Section 362. - 39- ,. • IN WITNESS WHEREOF,the parties have executed this Lease on the date as first above written. LESSOR LESSEE Walker cCall,LLC Peconic Land Trust,Incorporated Lir /.',a .A / _id.. BY: Russell McCall,co-Manager Timothy J. Caufield,Vice President BY: Russell McCall Jr., Co-Manager . J / F , ' ✓- } Jtf C . / r / i � a 9 „r , F 8 / #' f' F r/ / f A, i� A, fir o, (: ' f , I € 1, -40- A.. rl i IN WITNESS WHEREOF, the parties have executed this Lease on the date as first above written. LESSOR LESSEE Walker/McCall, LLC Peconic Land Trust, Incorporated BY: BY: Russell McCall, Co-Manager Timothy j. Caufield,Vice President BY: tek.65-e-ij Al(C-C-05111jr---- Russell McCall Jr., Co-Manager f ' rr✓ / r if / I .,6 / t , Off .1 ' / 4 id i /F 1 I i t 1 c ' 1 -40- ,, 01 1r IN WITNESS WHEREOF, the parties have executed this Lease on the date as first above written. LESSOR LESSEE Walker/McCall, LLC Peconic Land Trust, Incorporated BY: B V:CC P$LSfCLL Russell McCall,Co-Manager Ti t J. field, Vice President BY: Russell McCall Jr., Co-Manager . /j ` . } r f ;' i r ,i ,r 1 f 5 y / .ii ! J i �� r , 1 , r t ,i , I I7 i J of / / / ! / :1,'. /r 1 / a f A+ + j V J j i e -40-