CONSERVATION RESTRICTION AND OPTION TO PURCHASE PREMISES to. The Westport Land Conservation Trust, Inc. and

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1 CONSERVATION RESTRICTION AND OPTION TO PURCHASE PREMISES to The Westport Land Conservation Trust, Inc. and The Town of Westport, Conservation Commission Oscar Palmer Farm Property The MASSACHUSETTS LAND CONSERVATION TRUST, INC. ( MLCT ), a Massachusetts non-profit corporation established under Chapter 180 of the General Laws, with an address of the Doyle Conservation Center, 464 Abbott Avenue, Leominster, Worcester County, MA 01453, its successors and assigns ( Grantor ), acting pursuant to Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws, for good and valuable consideration, hereby grants, with quitclaim covenants, to the WESTPORT LAND CONSERVATION TRUST, INC. ( WLCT ), a Massachusetts charitable corporation, with a mailing address of P.O. Box 3975, Westport, Massachusetts, 02790, its successors and permitted assigns, and to the TOWN OF WESTPORT ( TOWN ), a municipal corporation in Bristol County, Massachusetts, acting by and through its Conservation Commission by authority of M.G.L. Chapter 40, Section 8C, with offices at 856 Main Road, Westport Massachusetts, 02790, its successors and permitted assigns (collectively the "Grantee"), in perpetuity and exclusively for conservation purposes, the following described Conservation Restriction (hereinafter, the Conservation Restriction or the Restriction ), together with an Option to Purchase Premises as set forth in Exhibit C and incorporated by reference into this Restriction, on a parcel of land of approximately twenty-nine and one tenth (29.1) acres located in the Town of Westport, Massachusetts, said parcel being described in Exhibit A attached hereto ("Premises") and shown on a plan of land entitled Conservation and Historic Preservation Restriction Plan, Oscar Palmer Farm, Westport, MA dated September 27, 2010, prepared by Beals and Thomas, Inc. and recorded with the Bristol County Southern District Registry of Deeds in Plan Book Page (hereinafter referred to as the Plan ), a reduced copy of which is attached hereto as Exhibit B. For Grantor s title to the Premises, see Bristol County Southern District Registry of Deeds Book 9224, Page 99. As used in this Conservation Restriction unless expressly stated otherwise, Grantee refers to the Town and the WLCT both separately and together, and each shall have the rights granted herein independent of the other. Purpose. This Conservation Restriction is defined in and authorized by Sections of Chapter 184 of the Massachusetts General Laws and otherwise by law. Its purpose is to assure that the Premises will be retained in perpetuity predominantly in their natural, scenic, agricultural, and open condition and to prevent any use of the Premises that will 1

2 significantly impair or interfere with the conservation values of the Premises. The public benefits resulting from conservation of the Premises include, without limitation: (1) Habitat and Biodiversity Protection. The Premises include a diverse array of habitats (including wetlands, meadow, fields, swamp forest, and upland forest) used by a variety of plants and wildlife, which habitats constitute a significant natural area that qualifies as a "...relatively natural habitat of fish, wildlife, or plants, or similar ecosystem," as that phrase is used in P.L , 26 USC 170(h)(4)(A)(ii), as amended, and in regulations promulgated thereunder. In its 2001 report, Biomap: Guiding Land Conservation for Biodiversity in Massachusetts, the Commonwealth identified the entire 29.1 acres of the Premises as being Biomap Core Habitat, representing those areas most in need of protection to conserve the state s biodiversity for generations to come. Conservation of the Premises will contribute to the protection of this habitat and of the Angeline Brook as a biologically diverse and productive stream system. (2) Water Quality Protection. The Premises include approximately 1,800 feet of frontage on Angeline Brook. Conservation of the Premises will contribute to the protection of water quality by creating a setback for certain activities that commonly degrade water quality and by reducing the number of permitted dwellings and thereby reducing septic systems, runoff, and water consumption commonly associated with such dwellings. (3) Soil Protection and Agricultural Preservation. The Premises include approximately 10 acres of Class II prime farmland soils, including 5.3 acres of Paxton fine sandy loam (3-8% slopes) and 4.7 acres of Woodbridge fine sandy loam (3-8% slopes), and 1.4 acres of Class III farmland soils of state or local importance, specifically Paxton fine sandy loam (3-8% slopes) very stony, according to the Bristol County Soil Survey of the Natural Resources Conservation Service. Protection of the Premises will help preserve these soil resources for agricultural use. The Premises, approximately half of which is currently farmed, are adjacent to over 450 acres of protected farmland, including the Wood Farm Agricultural Preservation Restriction (APR) (21 acres), Santos APR (94 acres), Souza APR (74 acres), Perry APR (81 acres), Sharples Linwood APR (61 acres) and Raposa APR (122 acres). Protection of the Premises will help preserve soil resources for agricultural use and preserve the agricultural viability of the area. (4) Furtherance of Government Policy a) Town of Westport. 1. Protection of the Premises is consistent with the Town of Westport s most recently completed Open Space and Recreation Plan (2006) which advocates for the protection of the town s working rural landscape (Goal 2), and the protection of Westport s natural areas including wetlands, wildlife habitats and coastal areas (Goal 3). 2. Agricultural/Open Space Preservation Trust Fund. Protection of the Premises is made possible in part by a grant from the Westport 2

3 Agricultural/Open Space Preservation Trust Fund (AOSPTF). The AOSPTF was established by Town Meeting vote in 2001 for the purpose of a) Preserving existing productive agricultural lands and supporting and revitalizing Westport s agricultural industry; and b) For the purpose of preserving potential open spaces for passive recreational use; and c) For the purpose of protecting environmental resource areas.. b) Commonwealth of Massachusetts. The Premises is composed of productive farm fields and pasture that qualify the Premises for reduced taxation as active agricultural land in accordance with Massachusetts General Laws Chapter 61A, which is a clearly delineated governmental policy of the Commonwealth of Massachusetts. Conservation of the Premises is in furtherance of this clearly delineated governmental policy and will ensure that this land remains available for agriculture in the future, helping to maintain the Town of Westport s agricultural tradition and economy. (5) Scenic Protection. The Premises comprise part of a scenic landscape, and are highly visible from Adamsville Road. The Premises are adjacent to over 550 acres of protected land, including 450 acres of land protected by Agricultural Preservation Restriction, which in turn connect to the 100-acre Herb Hadfield Conservation Area, owned by the Westport Land Conservation Trust. The Massachusetts Department of Environmental Management s Massachusetts Landscape Inventory, published in 1982, rated the entire Premises as Noteworthy. (6) Historic Preservation. The farmstead and the historic buildings of the Oscar Palmer Farm, which date back to the early 1700 s, make up a historically significant farm that is an important part of the landscape and of Westport s agricultural heritage. The farm is included in the Inventory of Historic and Archaeological Assets of the Commonwealth maintained by the Massachusetts Historical Commission, and is eligible for listing on the National Register of Historic Places. The farmstead and its historic buildings are protected through a Historic Preservation Restriction held by The Trustees of Reservations and the Town of Westport, dated, and recorded with the Bristol County Southern District Registry of Deeds at Book, Page. (7) Public Access. The public is granted access to a portion of the Premises along Angeline Brook for walking and fishing, as further described in the Trail Easement granted and recorded herewith. The terms of this Restriction are as follows: A. Prohibited Uses. Except as provided in the reserved rights set forth in Paragraph B below, the Grantor will neither perform nor allow others to perform the following acts and uses, which are expressly prohibited on, above and under the Premises: 3

4 (1) Constructing, placing or allowing to remain any temporary or permanent building, tennis court, landing strip, mobile home, swimming pool, asphalt or concrete pavement, sign, fence, billboard or other advertising display, antenna, utility pole, tower, conduit, line or other temporary or permanent structure or facility on, above or under the Premises; (2) Mining, excavating, dredging or removing from the Premises of soil, loam, peat, gravel, sand, rock or other mineral resource or natural deposit; alteration of the existing natural topography of the Premises; withdrawal of surface or ground water from the Premises, other than for use on the Premises. (3) Placing, filling, storing or dumping on the Premises of soil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, waste or other substance or material whatsoever or the installation of underground storage tanks; (4) Cutting, removing or otherwise destroying trees, shrubs, grasses or other vegetation; (5) Activities detrimental to drainage, flood control, water conservation, water quality, erosion control, soil conservation, or archaeological conservation, including but not limited to the overgrazing of livestock or the operation of a feed lot. (6) The use of motorcycles, motorized trail bikes, all terrain vehicles, snowmobiles and all other motor vehicles, except as provided for in Paragraph B, or as necessary by the police, firemen or other governmental agents in carrying out their lawful duties; (7) The disruption, removal, or destruction of the stone walls or granite fence posts on the Premises; (8) The use of the Premises for more than a de minimis commercial recreational activity; (9) Conveyance of a part or portion of the Premises alone, or division or subdivision of the Premises (as compared to conveyance of the Premises in its entirety, which shall be permitted); (10) The use of the Premises for a) subsequent transferal of development rights to any property, whether or not adjacent to the Premises or, b) use in any calculations involving further development of any other property, whether or not adjacent to the Premises, in any manner whatsoever, except for the permitted development under Paragraph B 4

5 of this Restriction. (10) Any other use of the Premises or activity thereon that is inconsistent with the purpose of this Restriction or that would materially impair significant conservation interests unless necessary for the protection of the conservation interests that are the subject of this Restriction. B. Reserved Rights. All acts and uses not prohibited in Paragraph A are permissible. The following acts and uses, otherwise prohibited in Paragraph A, are permitted, but only if such uses and activities do not materially impair the purpose of this Restriction or other significant conservation interests: (1) Historic Preservation Restriction Area. Within the area identified as Historic Preservation Restriction Area on the Plan, those uses permitted under the Historic Preservation Restriction (HPR), dated, and recorded in the Bristol County Registry of Deeds Book, Page, together with, and only as permitted in the HPR, the use, maintenance, repair, and replacement of a driveway, which a) may be no wider than a single lane, b) shall be unpaved, c) may be improved only to the extent necessary for regular vehicular use, and d) shall only be improved with pervious materials, together with the installation, use, maintenance, repair, and replacement of utilities (including well or water, telephone, and electricity, all of which shall be underground). (2) Agricultural Structures. a. Within the Backland Area, as shown on the Plan, and upon written permission of Grantee, the construction, use, maintenance, repair, and replacement of one or more barns or greenhouses, exclusively for agricultural use, together with a driveway and utilities (including well or water, telephone, and electricity, all of which shall be underground). Such structures shall not exceed twenty-five (25) feet in height above grade. Excepting greenhouses, the exterior of such structures shall be made of natural materials and shall be similar in appearance to existing structures in the Residential Building Envelope, as documented in the Baseline Documentation Report. The aggregate footprint of the foundation of such structures shall not exceed 3,500 square feet. The structures permitted in this Paragraph B.(1) shall be located at least two hundred (200) feet from Angeline Brook. No residential use of such barns shall be permitted. In reviewing a request for construction of such structures, Grantee will assess the benefit to the agricultural operation of construction of such structures, and assess whether such structures would materially impair the purpose of this Restriction or other significant conservation interests, including but not limited to Historic Preservation and Soil Protection and Agricultural Preservation. b. Within the Front Field Areas, as shown on the Plan, and upon written 5

6 permission of Grantee, the construction, use, maintenance, repair, and replacement of one or more temporary greenhouses and one temporary farmstand and associated unpaved parking area for up to five (5) vehicles, exclusively for agricultural use. For the purposes of this Restriction, temporary shall mean that such structures do not have a permanent foundation and do not substantially alter or otherwise affect the soil profile. Said farmstand shall not exceed 800 square feet in size, and greater than 50% of products sold at said farmstand shall be produced on the property. In reviewing a request for construction of such structures, Grantee will assess the benefit to the agricultural operation of construction of such structures, and assess whether such structures would materially impair the purpose of this Restriction or other significant conservation interests, including but not limited to Historic Preservation and Soil Protection and Agricultural Preservation. (3) Recreation. Hunting, fishing, hiking, horseback riding, cross-country skiing and other non-motorized outdoor recreational activities that do not materially alter the landscape, degrade environmental quality, or involve more than de minimis use for commercial recreational purposes. (4) Trails. The construction, maintenance, and marking of trails for pedestrian use and horseback riding, including, with prior written notice to Grantee, the construction, maintenance, and marking of boardwalk trails. (5) Motor Vehicles. The use of motor vehicles as reasonably necessary in exercising any of the reserved rights in this Paragraph B, provided that such use shall be limited so as not to cause erosion or other adverse impacts on the conservation values of the Premises. (6) Agricultural Activities. Agricultural, horticultural and animal husbandry operations carried on in accordance with sound agricultural management practices (including without limitation the cultivation of existing fields, the mowing and grazing of existing meadows and the installation of sightpervious fences), and in accordance with Paragraph C, except that no livestock shall be permitted within 100 feet of Angeline Brook. Only with prior written approval of Grantee shall upland forested areas be cleared for agricultural use. Non-point source pollution, including impacts to the water quality of Angeline Brook from chemicals and fertilizers, shall be taken into account when considering such requests and in determining whether an agricultural management practice is sound. No agricultural management practice shall be considered unsound if it is conducted in accordance with a farm conservation plan prepared by the U.S. Department of Agriculture Natural Resources Conservation Service (or its successor agency) ( Farm Plan ), which plan is reviewed and updated whenever a substantial change in operations is contemplated. Other than the installation of fences, gates, and a well for agricultural purposes, which 6

7 shall be permitted, this Paragraph B.(6) does not intend to create a right to construct, place, use, maintain, repair or replace any temporary or permanent structures, other than those permitted in accordance with Paragraphs B.(2)a. and B.(2)b. above, whether or not related to agricultural, horticultural and animal husbandry operations. (7) Tree and Brush Cutting. In accordance with generally accepted forestry management practices (a) selective pruning and cutting to prevent, control or remove hazards, disease or insect damage, fire, or to preserve or improve the present condition of the Premises, including fields, meadows, vistas, stone walls, woods roads, and trails; and (b) selective noncommercial harvesting of trees to provide firewood for use by the owners of the Premises; (c) forestry activities recommended in the Farm Plan; and (d) commercial timber production on a sustained yield basis, but only if carried out in accordance with a plan prepared by a professional forester mutually agreed upon by the Grantor and the Grantee, which plan is designed to protect the purposes of this Conservation Restriction, including without limitation, scenic and wildlife habitat values. A copy of such forestry management plan shall be submitted to Grantee when completed and a copy of any cutting plan pursuant thereto shall be submitted to the Grantee at least thirty (30) days prior to any cutting taking place. Any removal of trees and brush in violation of this paragraph shall be remedied by the planting and maintenance of trees and brush of the size and type removed. (8) Brush Piles. The stockpiling, composting and occasional burning of stumps, tree and brush limbs and similar biodegradable materials originating on the Premises in locations where the presence of such activities will not have a deleterious impact on the purposes (including scenic values) of this Restriction. (9) Stone Walls. The removal of boulders and large stones from the Premises if their continued presence interferes with the productivity of the agricultural fields, or, with prior written permission of Grantee, if their presence is deemed to interfere with the scenic qualities of the Premises, along with the right to maintain and, with prior written approval by Grantee, to remove or alter stone walls only to the extent necessary: (a) to gain entrance to a portion of the Premises for the purposes related to the rights reserved in this Paragraph B, and (b) to reconstruct or improve existing stone walls with walls of the same type and keep them free of vegetation. (10) Habitat Restoration. The removal of non-native flora and interplanting of indigenous species, and with prior written approval of Grantee, measures designed to restore native biotic communities, or to maintain, enhance, or restore wildlife, wildlife habitat, or rare or endangered species, including 7

8 the control of noxious, nuisance, or non-native plant or animal species. The erection of poles and houses for bird nesting is permitted. (11) Archeological Activities. The conduct of archeological activities, including without limitation survey, excavation, and artifact retrieval, but only following submission of an archeological field investigation plan and its approval by the Grantee and the State Archeologist of the Massachusetts Historical Commission (or appropriate successor official). (12) Signage. The erection, maintenance, and replacement of signs with respect to hunting, trespass, trail access, identity and address of the Premises and owners, sale of the Premises, the Grantee s interest in the Premises, agricultural activities, and the protected conservation values. (13) Renewable Energy Generation. The construction, use, maintenance, repair, and replacement of one wind turbine or other renewable energygenerating structure for the generation of electricity shall be permitted, with the majority of the electricity produced to be used on the Premises and adjacent lands owned by the Grantor, and only upon receipt of the Grantee s prior written approval, said approval not to be unreasonably delayed or denied. When considering whether to issue such approval, Grantee shall weigh and evaluate, among other relevant factors, the overall aesthetic impacts of the proposed renewable energy-generating structure in the context of the surrounding landscape, the environmental impacts (specifically including impacts on the conservation values intended to be protected by this Restriction and including, but not limited to, impacts on birds and bats), and the scope of its anticipated energy benefits, and, upon Grantee s request, Grantor shall provide Grantee with written documentation addressing these and other matters deemed relevant by the Grantee. The exercise of any right reserved by Grantor under this Paragraph B shall be in compliance with the then-current Zoning By-Law of the Town of Westport, the Wetlands Protection Act (Massachusetts General Laws (MGL) Chapter 131, Section 40), the Rivers Protection Act (an amendment to MGL Chapter 131, Section 40), and with all other applicable federal, state and local laws. The inclusion of any reserved right in this Paragraph B requiring a permit from a public agency does not imply that Grantee or the Commonwealth takes any position on whether such permit should be issued. C. Active Agricultural Maintenance of Fields. Grantor agrees for itself, and its successors in title, that the fields existing at the time of this grant, as shown in the Plan, with the exception of any area utilized for Agricultural Structures as permitted in Paragraph B.(2), shall be continuously maintained in active commercial agricultural use as defined in paragraph B.(6), and the land shall not be abandoned. For the purposes of this agreement, land shall be considered abandoned when it has not been actively utilized for commercial agricultural activities or uses for a period exceeding two years unless the 8

9 non-utilization is recommended in a current Farm Plan. Failure to maintain the premises in active commercial agricultural use shall be a violation of this restriction. Grantee reserves the right, as described in Paragraph F, to inspect the premises to determine compliance with this requirement. Grantee may also request from Grantor additional documentation, including but not limited to a Farm Plan, to determine compliance. In the event of non-compliance, Grantee reserves the right, without waiver of any other right, to manage such fields for agricultural purposes in a manner that Grantee, in its sole discretion, deems appropriate to ensure compliance. Grantee shall be entitled to recover from Grantor an amount equal to the total of the net costs reasonably incurred by the Grantee in so doing. D. Notice and Approval. Whenever notice to or approval by Grantee is required under the provisions of Paragraphs A or B, Grantor shall notify Grantee in writing, delivered to the Grantee at the addresses provided herein, by Certified Mail, return receipt requested, not less than sixty (60) days prior to the date Grantor intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the purposes of this Restriction. Where Grantee's approval is required, the Town of Westport ( Town ), its successor or assign, shall, within (30) days of receipt of Grantor s request, notify The Westport Land Conservation Trust ( WLCT ), its successor or assign, of the Town decision. Following receipt of the Town s notice, but in no case later than sixty (60) days following WLCT s receipt of Grantor s written request, WLCT shall either affirm or reverse the decision of Town. WLCT s decision shall in all cases be final and controlling as to Grantee. In the event that no decision is received from the Town within said thirty (30) days, WLCT shall proceed to issue its decision within sixty (60) days of receipt by WLCT of Grantor s written request. Failure of WLCT to act within said sixty (60) days shall be deemed to constitute approval of either the Town decision, if one has been issued, or, in the absence of a Town decision, of Grantor s request as submitted, so long as the request sets forth the provisions of this section relating to deemed approval after the passage of time. E. Extinguishment. (1) Grantee s Receipt of Property Right. Grantor and Grantee agree that the granting of this Conservation Restriction gives rise for purposes of this paragraph to a real property right, immediately vested in Grantee, with a fair market value that is equal to 62% of the value of the Property. WLCT and the Town agree that the Town, via the Town s Agricultural/Open Space Preservation Trust Fund, provided $250,000 toward the acquisition of this Restriction. WLCT and the Town agree that this contribution provides the Town the proportionate value of of this Conservation Restriction. WLCT and the Town agree that WLCT provided toward the acquisition of this Restriction. WLCT and the Town agree that this contribution provides WLCT the proportionate value of % of this Conservation Restriction. 9

10 (2) Value of Grantee s Property Right. Such proportionate value of Grantee s property right shall remain constant. (3) Right of Grantee to Recover Proportional Value at Disposition. If circumstances arise in the future that render the purpose of this Restriction impossible to accomplish, this Restriction can be terminated, released or extinguished, whether in whole or in part, only by proceedings consistent with M.G.L. Chapter 184, and with Article XCVII of the Amendments to the Constitution of the Commonwealth of Massachusetts, or pursuant to judicial proceedings in a court of competent jurisdiction. In case of any such extinguishment or other release of the Restriction, then Grantee, on a subsequent sale, exchange or involuntary conversion of the Premises, shall be entitled to a portion of the proceeds in accordance with Paragraphs E.(1) and E.(2), above, subject, however, to any applicable law that expressly provides for a different disposition of proceeds.. (4) Grantor/Grantee Cooperation Regarding Public Action. Whenever all or any part of the Premises or any interest therein is taken by public authority under power of eminent domain or other act of public authority, then Grantor and Grantee shall cooperate in recovering the full value of all direct and consequential damages resulting from such action. (5) Allocation of Expenses upon Disposition. All related expenses incurred by Grantor and Grantee shall first be paid out of any recovered proceeds, and the remaining proceeds shall be distributed between Grantor and Grantee in shares proportional to their interests in the Premises, as described in Paragraphs E.(1) and E.(2), above. (6) Continuing Trust of Grantee s Share of Proceeds of Conservation Restriction Disposition. The Grantee shall use its share of the proceeds in a manner consistent with the conservation purposes of this grant. F. Access. The Restriction hereby conveyed does not grant to Grantee, to the public generally, or to any other person any right to enter upon the Premises except as follows: (1) Grantor hereby grants to Grantee and its representatives the right to enter the Premises (a) at reasonable times and in a reasonable manner for the purpose of inspecting the same to determine compliance herewith, and (b) after 30 days prior written notice, to take any and all actions with respect to the Premises as may be necessary or appropriate, with or without order of court, to remedy, abate or otherwise enforce any violation hereof. (2) There is hereby granted to WLCT a perpetual right and easement for public passage over a portion of the Premises as more particularly described in a deed recorded herewith. 10

11 G. Grantee s Right to Post Identifying Signage. The Grantee shall have the right to post signs, no more than 12 inches by 12 inches in size, on the boundaries of the Premises, identifying the interest of the Grantee in the Premises, and informing the public of the nature and public benefit of the conservation of the Premises. H. Legal Remedies of Grantee. The rights hereby granted shall include the right to enforce this Restriction, including the specific performance of affirmative obligations contained herein, by appropriate legal proceedings and to obtain injunctive and other equitable relief against any violations, including without limitation relief requiring restoration of the Premises to their condition prior to such violation (it being agreed that Grantee will have no adequate remedy at law). The rights hereby granted shall be in addition to, and not in limitation of, any other rights and remedies available to Grantee. Grantor covenants and agrees to reimburse Grantee all reasonable costs and expenses (including without limitation reasonable counsel fees) incurred in enforcing this Restriction or in taking reasonable measures to remedy or abate any violation thereof, provided that a violation of this Restriction is acknowledged by Grantor or determined by a court of competent jurisdiction to have occurred. By its acceptance, Grantee does not undertake any liability or obligation relating to the condition of the Premises, including with respect to compliance with hazardous materials or other environmental laws and regulations. Enforcement of the terms of this Conservation Restriction shall be at the discretion of Grantee. Any election by Grantee as to the nature and timing of its actions pursuant to its right to enforce this Conservation Restriction or otherwise as to the exercise of its rights hereunder shall not be deemed or construed to be a waiver of such rights. I. Acts Beyond Grantor's Control. Nothing contained in this Restriction shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Premises resulting from causes beyond Grantor's control, including, but not limited to, 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 Premises resulting from such causes. J. Duration and Assignability. The burdens of this Restriction shall run with the Premises and shall be enforceable against Grantor in perpetuity. Grantee is authorized to record or file any notices or instruments appropriate to assuring the perpetual enforceability of this Restriction. The Grantor appoints the Grantee its attorney-in-fact to execute, acknowledge and deliver any such instruments on its behalf. Without limiting the foregoing, the Grantor agrees itself to execute any such instruments upon request. The benefits of this Restriction shall be in gross and shall not be assignable by Grantee, except in the following instances from time to time: (i) as a condition of any assignment, Grantee requires that the purpose of this Restriction continue to be carried out, and (ii) the assignee, at the time of assignment, qualifies under Section 170(h) of the Internal Revenue Code of 1986, as amended, and applicable regulations thereunder, and under Section 32 of Chapter 184 of the Massachusetts General Laws, as an eligible donee to receive this Restriction directly, and (iii) Grantee complies with the provisions required by Article 97 of the Amendments to the State Constitution, if applicable. 11

12 K. Subsequent Transfers. Grantor agrees to incorporate by reference the terms of this Conservation Restriction in any deed or other legal instrument by which Grantor conveys any interest in all or a portion of the Premises, including, without limitation, a leasehold interest, and to give written notice to Grantee at least twenty (20) days prior to the date of such transfer. Failure of Grantor to do so shall not impair the validity of this Conservation Restriction or limit its enforceability in any way. L. Termination of Rights and Obligations. Notwithstanding anything to the contrary contained herein, the rights and obligations under this Restriction of any party holding any interest in the Premises terminate upon transfer of that party's interest, except that liability for acts or omissions occurring prior to transfer, and liability for the transfer itself if the transfer is in violation of this Restriction, shall survive the transfer. M. Estoppel Certificates. Upon request by Grantor, Grantee shall within forty-five (45) days execute and deliver to Grantor any document, including an estoppel certificate, that certifies the status of Grantor's compliance with any obligation of Grantor contained in this Restriction, or that otherwise evidences the status of this Restriction, as may reasonably be requested by Grantor. N. Amendment. If circumstances arise under which an amendment to or modification of this Conservation Restriction would be appropriate, Grantor and Grantee may jointly amend this Conservation Restriction; provided that no amendment shall be allowed that will affect the qualification of this Conservation Restriction or the status of Grantee under any applicable laws, including Section 170(h) of the Internal Revenue Code of 1986 as amended, or Sections of Chapter 184 of the General Laws of Massachusetts, or that is not joined in by all parties to this restriction; any amendment shall be consistent with the purposes of this Conservation Restriction, and shall not affect its perpetual duration. Any amendment shall occur only in exceptional circumstances. Any amendment shall be consistent with the purposes of this Conservation Restriction, shall not affect its perpetual duration, shall be approved by the Secretary of Environmental Affairs or as required by applicable statutes in effect at the time of the proposed amendment and, if applicable, shall comply with the provisions of Art. 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts. Any such amendment shall be recorded in the Bristol County Southern District Registry of Deeds. O. Effective Date. This Conservation Restriction shall be effective when the Grantor and the Grantee have executed it, the administrative Approvals required by Section 32 of Chapter 184 of the General Laws have been obtained, and it has been recorded in the Bristol County Southern District Registry of Deeds. P. Recordation. The Grantee shall record this instrument in timely fashion in the Bristol County Southern District Registry of Deeds. Q. Notices. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and either served 12

13 personally or sent by first class mail, postage pre-paid, addressed to the party to be notified as follows: To GRANTOR: Massachusetts Land Conservation Trust 464 Abbott Avenue Leominster, MA To GRANTEES: Westport Land Conservation Trust P.O. Box 3975 Westport, MA Town of Westport Conservation Commission 856 Main Road Westport, MA R. Miscellaneous. (1) Controlling Law. The interpretation and performance of this Restriction shall be governed by the laws of the Commonwealth of Massachusetts. (2) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Restriction shall be liberally construed in favor of the grant to effect the purpose of this Restriction and the policy and purpose of Mass. Gen. Laws Chapter 184, Sections If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Restriction that would render the provision valid shall be favored over any interpretation that would render it invalid. (3) Severability. If any provision of this Restriction shall to any extent be held invalid, the remainder shall not be affected. (4) Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Restriction and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Restriction, all of which are merged herein. (5) Joint Obligation. The obligations imposed by this Restriction upon the parties that together comprise "Grantor" shall be joint and several. (6) Captions. The captions in this instrument have been inserted solely for convenience of reference. They are not a part of this instrument and shall have no effect upon construction or interpretation. 13

14 (7) Pre-existing rights of the Public. Approval of this Restriction pursuant to M.G.L Chapter 184, Section 32 by any municipal officials and by the Secretary of Environmental Affairs is not to be construed as representing the existence or non-existence of any pre-existing rights of the public, if any, in and to the Premises. Any such pre-existing rights of the public, if any, are not affected by the granting of this Restriction. (8) No Merger. The parties intend that any future acquisition of the Premises shall not result in a merger of the Conservation Restriction into the fee. The Grantor agrees that it will not grant, and the Grantee agrees that it will not take, title to any part of the premises without having first assigned this Conservation Restriction, in accordance with Paragraph K, above, to ensure that merger does not occur. (9) Counterparts. This Restriction may be executed in counterparts and shall constitute a single agreement whether or not all signatures appear on a single copy hereof. (10) Baseline Documentation. In order to establish the present condition of the Premises and the conservation values thereon which are protected by this Restriction, so as to enable Grantee to monitor future uses of the Premises and to assure compliance with the terms hereof, Grantor and Grantee have prepared an inventory of the relevant features and conditions of the Premises (the Baseline Documentation Report ), and agree that the same is an accurate representation of the condition of the Premises as of the date of the execution of this Restriction. Verified originals of the Baseline Documentation Report will be deposited with the Grantor and in the permanent records of the Grantee. (11) Subordination. Grantor represents, and Grantee relies on Grantor s representation, that the Premises are free from any lien, encumbrance, or other interest by any third party in the Premises, except as set forth in Exhibit A. Any such interests which would disqualify this conveyance for treatment as a qualified conservation contribution in accordance with Section 170(h) of the Internal Revenue Code of 1986, as amended, and applicable regulations thereunder, are subordinated to this Conservation Restriction by subordination documents recorded herewith. 14

15 Executed under seal this day of, GRANTOR MASSACHUSETTS LAND CONSERVATION TRUST, Inc. Wesley T. Ward, President, duly authorized COMMONWEALTH OF MASSACHUSETTS, ss., 2011 On this day of, 2011, before me, the undersigned notary public, personally appeared Wesley T. Ward, proved to me through satisfactory evidence of identification, which was (personal knowledge of identity) (a current driver s license) (a current U.S. passport), to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose. Notary Public My commission expires: 15

16 ACCEPTANCE OF GRANT The above Conservation Restriction is accepted this day of, WESTPORT LAND CONSERVATION TRUST, INC. Margaret H. Stevens, duly authorized Executive Director COMMONWEALTH OF MASSACHUSETTS Bristol, ss., 2011 Then personally appeared the above-named Margaret H. Stevens and proved to me through satisfactory evidence, which was (personal knowledge of identity) (a current driver s license) (a current U.S. passport), to be the person whose name is signed on the foregoing document and acknowledged that she voluntarily signed it for its stated purpose. Notary Public My commission expires: 16

17 ACCEPTANCE BY TOWN OF WESTPORT CONSERVATION COMMISSION We, the undersigned, being a majority of the Conservation Commission of the Town of Westport, Massachusetts, hereby certify that at a meeting duly held on, 2011, the Conservation Commission voted to approve and accept the foregoing Conservation Restriction from the Massachusetts Land Conservation Trust, Inc. pursuant to M.G.L. Chapter 184, Section 32 and Chapter 40, Section 8(c). WESTPORT CONSERVATION COMMISSION COMMONWEALTH OF MASSACHUSETTS Bristol, ss., 2011 Then personally appeared the above-named,,,,,, and and proved to me through satisfactory evidence, which was (personal knowledge of identity) (a current driver s license) (a current U.S. passport), to be the people whose names are signed on the foregoing document and acknowledged that they voluntarily signed it for its stated purpose, Notary Public My commission expires: 17

18 APPROVAL OF SELECTMEN We, the undersigned, being a majority of the Selectmen of the Town of Westport, Massachusetts, hereby certify that at a meeting duly held on, 2011 the Selectmen voted to approve the foregoing Conservation Restriction to the Westport Land Conservation Trust and the Town of Westport pursuant to M.G.L. Chapter 184, Section 32. Selectmen COMMONWEALTH OF MASSACHUSETTS Bristol, ss., 2011 On this day of, 2011, before me, the undersigned notary public, personally appeared,,,, and, proved to me through satisfactory evidence of identification, which was (personal knowledge of identity) (a current driver s license) (a current U.S. passport), to be the persons whose names are signed on the preceding or attached document, and acknowledged to me that they signed it voluntarily for its stated purpose. Notary Public My commission expires: 18

19 APPROVAL BY SECRETARY OF ENERGY & ENVIRONMENTAL AFFAIRS COMMONWEALTH OF MASSACHUSETTS The undersigned, Secretary of the Executive Office of Energy & Environmental Affairs of the Commonwealth of Massachusetts, hereby certifies that the foregoing Conservation Restriction to the Westport Land Conservation Trust and the Town of Westport has been approved in the public interest pursuant to M.G.L. Chapter 184, Section 32. Date:, 2011 Ian A. Bowles Secretary of Energy & Environmental Affairs COMMONWEALTH OF MASSACHUSETTS, ss., 2011 On this day of, 2011, before me, the undersigned notary public, personally appeared Ian A. Bowles, proved to me through satisfactory evidence of identification, which was (personal knowledge of identity) (a current driver s license) (a current U.S. passport), to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose. Notary Public My commission expires: 19

20 Exhibit A The Premises consist of an approximately 29.1-acre parcel of land located in Westport, Massachusetts, lying on the southerly side of Adamsville Road, shown on a plan entitled Conservation and Historic Preservation Restriction Plan, Oscar Palmer Farm, Westport, MA dated September 27, 2010, prepared by Beals and Thomas, Inc. and recorded in Plan Book, Page in the Bristol County Southern District Registry of Deeds. For Grantor s title see Bristol County Southern District Registry of Deeds Book 1842, Page

21 Exhibit B: Reduced copy of Conservation and Historic Preservation Restriction Plan 21

22 Exhibit C: Option to Purchase Premises A. Grantee shall have an option to purchase the Premises ("Option") in accordance with the provisions of this section. Grantor has granted the Option as an integral part of this Restriction, the full consideration for which is set forth above. The Option constitutes a restriction and covenant that runs with the land in perpetuity and is binding in the event of a foreclosure of Grantor s ownership of said Premises. 1) The intent of the Option is to preserve commercial agricultural use of the Premises by Grantor and their successors and prevent the sale of the Premises on terms that would preclude its profitable use for commercial agriculture. Accordingly, the parties hereto agree to a process as follows: In the event that Grantor proposes to sell the Premises and enter into a bona fide Purchase and Sale Agreement with a third party for the sale of the Premises, Grantee, at its election, shall have the right to purchase or assign the right to purchase (see subsection G, below) the Premises from the Grantor at a price equal to the as-restricted fair market value of the Premises ( As- Restricted Value ). Said As-Restricted Value shall be determined by: a. An appraisal of the As-Restricted Value of the Premises, including all improvements thereon, conducted by a duly licensed appraiser with experience in the appraisal of agricultural real estate in the Westport geographical area. Such appraisal shall be obtained and paid for by Grantor. The appraisal shall be conducted by a market comparison of the Premises, including all permanent improvements, with comparable properties recently purchased or leased for agricultural use such as would be permitted under the terms of this Restriction, and/or by such other appraisal methods as such appraiser finds appropriate for determining the As-Restricted Value of the Premises. In conducting such appraisal, the appraiser shall take into consideration all restrictions and requirements imposed by this Restriction and Option that may affect market value. If Grantee is not satisfied with the appraisal, Grantee may commission, at its cost, a second appraisal of the Premises in accordance with the provisions of the paragraph above by a duly licensed appraiser with experience in the appraisal of agricultural real estate in the Westport geographical area. If the value reported by such second appraisal is no more than ten percent (10%) higher or lower than the value reported by the first appraisal, the As- Restricted Value, for purposes of determining the Option Price, shall be the average of the two appraised values. If the second appraised value is more than ten percent (10%) higher or lower than the first appraised value, then Grantor s appraiser and 22

23 Grantee s appraiser shall together appoint a third duly licensed appraiser with experience in the appraisal of agricultural real estate in the Westport geographical area, who shall appraise the Premises according to the requirements of the paragraph above. The cost of the third appraisal shall be borne equally by Grantee and Grantor. The value of the Premises determined by the third appraiser in such case shall be the As-Restricted Value for purposes of determining the Option Price. b. In the event that the sale price as set forth in the bona fide Purchase and Sale Agreement is less than the As-Restricted Value of the Premises determined by the procedure set forth in Paragraph A.1) a. above, Grantee shall have the right to purchase the Premises from Grantor for this lesser amount, or assign its right to purchase the Premises from Grantor as described in Paragraph G., below. 2) In no event shall WLCT or the Town have any obligations under this Exhibit C. Neither WLCT nor the Town has any obligation to acquire any interest at the As-Restricted Value of the Premises, but each will cooperate with the other in the event that one or both wishes to exercise its rights hereunder. Neither Grantee shall have any duty to pay any sums towards the acquisition of the premises by the other Grantee from Grantor, or its successors in title. B. Upon executing a bona fide Purchase and Sale Agreement for the sale of Premises with a third party purchaser the following procedures shall be followed: 1) The Grantor shall provide, at a minimum, to the Grantee: a) written notice stating Grantor s intent to sell the Premises ( Notice ); b) a true, correct, complete and fully executed copy of the bona fide Purchase and Sale Agreement including any offer executed from a third party to purchase the Premises; c) a copy of the current deed; d) the As-Restricted Value and any appraisals related thereto; or e) As-Restricted Value as determined pursuant to A.1) a. above. 2) Upon receipt of this Notice, the Grantee shall have one hundred twenty (120) days to notify the Grantor of its election to purchase the Premises at As- Restricted Value (or any lesser sale price set forth in the Purchase and Sale Agreement) or to waive its rights under the Option. WLCT and Town may elect to exercise or decline to exercise this right either individually or jointly. The Grantor shall be notified of Grantee s election by written notice ( Notice of Election ). 23

24 C. In the event that the Grantee elects to exercise the Option to purchase the Premises, a quitclaim deed shall be delivered and the consideration paid at the Bristol County Southern District Registry of Deeds before 4 o'clock p.m. on or before the onehundred-twentieth (120) day after the date of mailing by the Grantee of the Notice of Election or, if a Saturday, Sunday or holiday, on the next business day. The deed shall convey a good and clear record and marketable title of the fee to the Premises free of all encumbrances and occupants, and the Premises shall be in the same condition as at the time of the Notice of Election, reasonable wear and tear and use thereof excepted. The date and time of the transfer may be amended by written mutual agreement of the parties. D. The Grantor may sell the Premises to the third party purchaser who entered into the bona fide Purchase and Sale Agreement referred to in Paragraph A.1) a. above, only in the event that Grantee: 1) declines in writing to exercise its rights under the Option within the specified time period; or 2) fails to waive its rights under the Option in writing within the specified time period; or 3) having elected to exercise its rights under the Option, fails to complete the purchase within the specified time period. Said sale of the Premises must take place within one (1) year of the date of the Grantee s receipt of Notice, and be only upon the same terms and conditions as contained in said bona fide Purchase and Sale Agreement. E. The obligations of the Grantor under the Option shall not apply where the transfer of ownership of the Premises will be a result of: 1) A conveyance by deed from MLCT; 2) a conveyance by deed to the Grantor s parent, children or grandchildren (whether by blood, marriage or adoption), siblings and/or their children or grandchildren (whether by blood, marriage or adoption); 3) a transfer of said Premises by will or intestacy of the Grantor; 4) a conveyance of an interest in the Premises to a co-owner. F. Any notices required by the Option shall be in writing and shall be deemed delivered if delivered in hand or mailed, postage prepaid by certified mail return receipt requested, addressed, in the case of the Grantor, to such address as may be specified in the Notice or, if none, then to the Premises, and, in the case of the Grantee, to the addresses set forth on page one of this Restriction. G. The Grantee may assign its right to purchase under the Option after providing the Grantor with a Notice of Election exercising its right to purchase, provided that the right to purchase may only be assigned to a party that, in the Grantee's opinion, will use or facilitate the use of the Premises for commercial agriculture and for the other purposes consistent with the terms of this Restriction. Any assignment shall only be 24