Declaration of Conservation Easement Hoit Road Open Space Subdivision

After recording return to: Baroff & Craven, PA Patricia M. Panciocco 740 Chestnut Street Manchester, NH 03104

DECLARATION OF CONSERVATION EASEMENT HOIT ROAD OPEN SPACE SUBDIVISION

This Declaration of Conservation Easement Hoit Road Open Space Subdivision (“Conservation Easement”) is made this ___ day of ______, 2017, by STRATEGIC CONTRACTING CO., LLC, a New Hampshire limited liability company, having a mailing address of P.O. Box 4766, Manchester, Hillsborough County, New Hampshire 03108 (“Declarant”).

RECITALS

The Declarant owns a parcel of land fronting on Hoit Road in the City of Concord, Merrimack County, New Hampshire, known to the City of Concord as Assessor’s Map 122, Block 3, Lot 12, shown on a plan entitled “Subdivision Plan, Prepared for Strategic Contracting Company, LLC, Assessor’s Map 122 Block 3 Lot 12, Hoit Road, Concord, New Hampshire, Scale: 1” = 50’ dated September, 2016”, last updated on February 13, 2017, prepared by T.F. Bernier, Inc., and recorded as Plan #______in the Merrimack County Registry of Deeds (“Plan”).

The Plan was approved by the City of Concord Planning Board as an open space subdivision with six (6) individual building lots and one (1) open space lot having 7.63 acres shown on the Plan as “Remainder Lot 12 (Open Space)” (“Open Space”).

This Conservation Easement is recorded to perpetually restrict and protect the Open Space from future development and insures its 7.63 acres remain in a natural state.

1. CONSERVATION PURPOSES

This Conservation Easement is granted pursuant to RSA 674:21 and Section 28-4-7(g)(2) of the City of Concord Zoning Ordinance (“Ordinance”). The Open Space is more particularly described on Exhibit A and shall remain subject to this Conservation Easement and be subject to the following conservation purposes (“Purposes”):

A. To preserve open space and traditional rural character; B. To promote use of land in harmony with its natural features; C. To protect the natural resource base; D. To enhance and protect the health, safety, convenience, and general welfare of the inhabitants of City of Concord; E. To preserve the quantity and quality of groundwater and surface water resources on and under the Open Space; F. To prevent any use or activity on the Open Space which would be detrimental to drainage, flood control, water conservation, water quality, soil stability or erosion control, carbon sequestration, or the unique and significant qualities of public benefit and the conservation and preservation values of the Open Space; G. To insure the City of Concord will have a contiguous block of protected open space land to further a healthful and attractive environment, land conservation and the protection of water, forest, agricultural and wildlife resources consistent with the Ordinance; H. To protect wildlife bio-diversity and habitat preservation for threatened and endangered animals, and other species; to protect and conserve critical habitats, threatened and endangered animals and species identified as at risk; and to protect and soundly manage natural resources, including the protection of wildlife bio- diversity and habitat preservation for the scenic enjoyment of the general public.

2. OPEN SPACE MONITORING

A. The owners of Assessor’s Map 122, Block 3, Lot 1, Lot 2, Lot 3, Lot 4 Lot 5 and Lot 6 (“Lot Owners”) shall own a 1/6th undivided ownership interest in the Open Space and remain obligated to monitor its use and insure it remains protected as described in this Conservation Easement.

B. No activity or use of the Open Space shall be undertaken in a manner that is not consistent with the Purposes and conservation goals of this Conservation Easement, its Use Limitations and the Reserved Rights and Responsibilities of the City of Concord.

C. The owners of Lots reserve the right to post the Open Space against hunting or vehicle use on the Open Space to prevent any use of the Open Space which is inconsistent with the within Purposes.

3. USE LIMITATIONS

The following use limitations shall apply to the Open Space, with the exception of those reserved to the City of Concord appearing within Section 4:

A. The Open Space shall be maintained in perpetuity as open space without any industrial or commercial activities, except incidental forestry, maintenance, mowing or reclamation of the meadow areas.

B. The Open Space shall not be subdivided.

C. No structures or improvements shall be constructed on the Open Space, including, but not limited to a permanent, seasonal or temporary dwelling or mobile home, septic systems, parking lots, recreational facilities, aircraft landing areas, telecommunications and/or wireless communications facilities shall be constructed or placed on the Open Space.

D. No removal, filling or other disturbances of the soil surface, nor any changes in topography, surface or subsurface water systems, wetlands, or natural habitat shall be allowed, except as incidental to the activities listed in 3(A) above.

E. No motorized vehicles may enter onto the Open Space except uses incidental to the permitted uses within 3(A) above.

F. No outdoor advertising structures such as signs and billboards shall be displayed on the Open Space.

G. No mining, quarrying, excavation, or removal of rocks, minerals, gravel, sand, topsoil, water, or other similar materials from the Open Space.

H. No dumping, injection, burning, or burial of manmade materials or materials known to be environmentally hazardous shall take place on the Open Space.

I. Except those of record, and as otherwise allowed by this Conservation, there shall be no rights-of-way, easements of ingress or egress, driveways or roads constructed or developed into, on, over, under, or across the Open Space.

4. RESERVED RIGHTS AND RESPONSIBILITIES OF THE CITY OF CONCORD

The City of Concord reserves the right to:

A. Request an annual monitoring report from the Lot owners to confirm the Open Space is being protected and maintained according to the terms of this Conservation.

B. Prepare an annual monitoring report which shall contain the following:

i. Description of the inspection conducted; ii. Description of the nature and source of any physical changes to the Open Space; iii. Description of any contacts made with owners of the Lots; iv. Description of any conditions or activities found on the Open Space; v. Explanation of the current status of any previously identified violations and any remedial steps taken; and

vi. Any steps to be taken by owners of the Lots to bring Open Space into compliance with the terms of this Conservation Easement, if necessary.

C. To perform “wildlife habitat management” which shall include, but not be limited to, alteration of vegetation and soil and the placement of structures to provide habitat for a wide range of wildlife species, in keeping with the Purposes of this Conservation Easement.

D. Breach of Conservation Easement – City of Concord Remedies

i. If the City determines that a breach of this Conservation Easement has occurred or is threatened, whether by a third party or the owners of the Lots, the City shall notify the owners of the Lots in writing of such breach and demand corrective action to cure that breach. Where the breach involves injury to the Open Space resulting from any use or activity inconsistent with the purposes of this Conservation Easement to restore the portion of the Open Space so injured to its prior condition in accordance with a plan approved by the City. Such notice shall be delivered in hand or by certified mail, return receipt requested.

ii. If the Lot Owners fail, within sixty (60) days of their receipt of such notice from the City to undertake those actions, including restoration, which are reasonably calculated to cure that breach and repair any damage to the Open Space or fail to continue diligently to cure such breach until finally cured, the City shall undertake such reasonable actions that may be necessary to repair any damage or to cure such breach, including an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Conservation Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction, and to require the restoration of the Open Space to the condition that existed prior to any such injury.

iii. The City may be entitled to recover damages for any intentional violation of this Conservation Easement or injury to any conservation values it protects, provided the City prevails in proving damage to the scenic, aesthetic or environmental values protected by this Conservation Easement. The City in its sole discretion may apply any damages recovered to the cost of undertaking any corrective action on the Open Space.

iv. All reasonable costs incurred by the City in enforcing the terms of this Conservation Easement against the Lot owners, may be recovered from the Lot owners provided it is conclusively determined that the Lot owners are directly or primarily responsible for the breach.

v. Forbearance by the City to exercise its rights under this Conservation Easement in the event of a breach by the Lot Owners shall not be deemed or construed to be a waiver by the City of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any of the City rights. No delay or omission by the City in the exercise of any right or remedy upon any breach by the Lot owners shall impair such right or remedy or be construed as a waiver.

vi. Nothing contained in this Conservation Easement shall be construed to entitle the City to bring any action against the Lot owners for any injury to or change in the Open Space resulting from:

a. Causes beyond the owners control or not caused by them, including, but not limited to, unauthorized actions by third parties or natural disasters such as fire, flood, storm, disease, infestation, and earth movement; b. Any prudent action taken by an owner under emergency conditions to prevent, abate or mitigate significant injury to the Open Space; or c. An action by an owner in the exercise of police or emergency response responsibilities.

vii. The City and the Lot owners reserve the right, separately or collectively, to pursue all legal and/or equitable remedies, as set forth in this Section, against any third party responsible for any actions that are not consistent with the conservation purposes of this Conservation Easement.

E. Alternate Dispute Resolution

i. The Lot owners and the City desire that issues arising from time to time concerning prospective uses or activities in light of the conservation purposes of this Conservation Easement will first be addressed through candid and open communication between the parties rather than unnecessarily formal or adversarial action. Therefore, the Lot owners and the City agree that if a party becomes concerned about the consistency of any proposed use or activity, that concerned party shall notify the other party of the perceived or potential problem, and explore the possibility of reaching an agreeable resolution.

ii. If informal dialog does not resolve the issue, and the Lot owners agree not to proceed with the proposed use or activity pending resolution of the on-going dispute, either party may refer the dispute to mediation by request made in writing to the other. Within ten (10) days of the receipt of such a request, the parties shall agree on a single impartial mediator who shall be an attorney licensed to practice law in the State of New Hampshire or an experienced land use or land conservation professional, both of whom must have experience with conservation easements. Each party shall pay its own attorneys’ fees, and the costs of mediation shall be split equally between the parties.

iii. If the dispute has not been resolved by mediation within sixty (60) days after delivery of the mediation request, or the parties are unable to agree on a mediator within thirty (30) days after delivery of the mediation request, then, upon the Lot Owners continued agreement not to proceed with the disputed use or activity pending resolution, either party may refer the dispute to binding arbitration by request made in writing and in accordance with New Hampshire RSA 542. Within thirty (30) days of receipt of such a request, the parties shall select a single impartial arbitrator to hear the matter. The arbitrator shall have experience in conservation easements and

applicable training and experience as an arbitrator. Judgment upon the award rendered by the arbitrator may be enforced in any court of competent jurisdiction. The arbitrator shall render a decision within thirty (30) days of the arbitration hearing.

iv. If the parties do not agree to resolve the dispute by arbitration, or if the parties are unable to agree on the selection of an arbitrator, then either party may bring an action at law or in equity in any court of competent jurisdiction to enforce the terms of this Conservation Easement to enjoin the violation by permanent injunction, to require the restoration of the Open Space to its condition prior to the breach, and to recover such damages as appropriate.

v. Notwithstanding the availability of mediation and arbitration to address disputes concerning the consistency of any proposed use or activity with the purposes of this Conservation Easement, if the City believes that some action or inaction of the Lot Owners or a third party is causing irreparable harm or damage to the Open Space, the City may seek a temporary restraining order, preliminary injunction or other form of equitable relief from any New Hampshire court of competent jurisdiction to cause the cessation of any such damage or harm pending resolution of any dispute in accordance with this Section.

The City, by accepting and recording this Conservation Easement, agrees to be bound by and to observe and enforce the provisions hereof and assumes the rights and responsibilities herein granted to and incumbent upon the City, all in the furtherance of the conservation purposes for which this Conservation Easement is delivered.

5. DISCRETIONARY CONSENT

A. The City may consent to certain activities otherwise prohibited under the following conditions and circumstances, if owing to unforeseen or changed circumstances, any proposed activity is deemed desirable by the Lot owners and the City, subject to the limitations herein. Requests for permission shall be in writing and describe the proposed activity in sufficient detail to allow the City to judge the consistency of the proposed activity with the purposes of this Conservation Easement. The City may give its permission only if it determines that such activities either enhance or do not impair any significant conservation interests associated with the Open Space. Such consent may not be unreasonably withheld or delayed.

B. Notwithstanding the foregoing, the Lot owners and the City shall have no right or power to agree to any activities that would result in the termination of this Conservation Easement or to allow any structures or activities not provided for above.

6. ADDITIONAL EASEMENT

Should the Lot owners determine that the expressed purposes of this Conservation Easement could better be effectuated by the conveyance of an additional easement, they may execute an additional instrument to that effect, provided that the Purposes of this Conservation

Easement are not diminished thereby and that a public agency or qualified organization accepts and records the additional easement.

7. AMENDMENT

If, owing to unforeseen or changed circumstances, Lot owners and the City agree that an amendment to or modification of this Conservation Easement would be appropriate and desirable, they may jointly amend this Conservation Easement n. Any amendment shall be consistent with: (a) the Purposes of this Conservation Easement; (b) the provisions and limitations of this section; (c) the current amendment policies of the City; and (d) any applicable state or federal law. Any amendment shall not impair the conservation attributes of the Open Space protected by this Conservation Easement. Any amendment shall be executed by both parties and recorded in the Merrimack County Registry of Deeds. Nothing in this paragraph shall require the Lot owners and the City to agree to any amendment or to consult or negotiate regarding any amendment.

8. ADMINISTRATION

A. Benefits and Burden

i. The burden of this Conservation Easement shall run with the title to the Lots and the Open Space and shall be enforceable in perpetuity.

ii. The City shall have reasonable access to the Open Space and all of its parts to determine compliance with and to enforce this Conservation Easement and exercise the rights conveyed hereby and fulfill the responsibilities and carry out the duties assumed by the acceptance of this Conservation Easement.

B. Notices

All notices, requests and other communications required to be given under this Conservation Easement shall be in writing, except as otherwise provided herein, and shall be delivered in hand or sent by certified mail, postage prepaid, return receipt requested to the appropriate address set forth above or at such other address as the Lot owners or the City may hereafter designate by written notice. Notice shall be deemed to have been given when so delivered or so mailed.

C. Severability

If any provision of this Conservation Easement, or its application to any person or circumstance is found to be invalid by a court of competent jurisdiction, by confirmation of an arbitration award or otherwise, the remainder of the provisions of this Conservation Easement or the application of such provision to persons or circumstances other than those to which it is found to be invalid, as the case may be, shall not be affected thereby.

D. Separate Parcel

The Lot owners agree that for the purpose of determining compliance with any present or future regulation, bylaw, order, or regulation of any other governmental unit, the Open Space shall be considered a separate parcel of land in which the Lot owners have an undivided interest in common with other Lot owners.

E. Condemnation

Whenever all or part of the Open Space is taken in exercise of eminent domain by public, corporate or other authority so as to abrogate in whole or in part the Conservation Easement conveyed hereby, or whenever all or a part of the Open Space is lawfully sold without the restrictions imposed hereunder in lieu of condemnation or exercise of eminent domain, the Lot owners shall recover the full damages resulting from such taking.

F. Extinguishment

If circumstances arise in the future which render the Purposes of this Conservation Easement impossible or impracticable to accomplish, this Conservation Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction.

The foregoing conveyance is made subject to all rights, easements, restrictions, encumbrances and other matters of record, to the extent in force and applicable, including, without limitation, (i) current use taxation; and (ii) matters of record found in deeds or shown on the plans recorded in the Merrimack County Registry of Deeds.

EXECUTED this ___ day of ______, 2017

STRATEGIC CONTRACTING CO., LLC

______By: Gene Archambault Its: Member Duly Authorized

STATE OF NEW HAMPSHIRE COUNTY OF ______

The foregoing instrument was acknowledged before me this ____ day of _____, 2017, by Gene Archambault, in his capacity as Member of Strategic Contracting Co., LLC.

Before me,

______Justice of the Peace/Notary Public My commission expires:

CITY OF CONCORD ACCEPTANCE OF DECLARATION OF CONSERVATION EASEMENT HOIT ROAD OPEN SPACE SUBDIVISION

The following members of the City of Concord – City Council unanimously vote to accept Strategic Contracting Co., LLC delivery of this Declaration of Conservation Easement Hoit Road Open Space Subdivision and agree to the obligations it imposes.

______By: ______WITNESS

STATE OF NEW HAMPSHIRE COUNTY OF ______

The foregoing instrument was acknowledged before me this ____ day of ______, 2017 by ______, ______and ______on behalf of the City of Concord.

______Notary Public/Justice of the Peace My commission expires:

Exhibit A

Beginning at an iron rod to be set at the southeasterly corner of new Lot 6, at land of Brian F. & Jeanne M. Chase, being the northeast corner of the parcel herein described;

Thence by land of said Chase S 15° 10' 47" E a distance of two hundred ninety nine and thirty hundredths feet (299.30’) to an iron rod found;

Thence still by land of said Chase S 15° 10 '47" E a distance of approximately twenty three and twenty four hundredths feet (23.24’) to the centerline of Hayward Brook;

Thence southwesterly along the centerline of said brook for approximately one thousand eight feet (1008’), having a tie course of S 37° 24' 39" W and a distance of four hundred eighty seven and one hundredths feet (487.01’), to land of Duene F. & Marianne K. Cowan;

Thence by land of said Cowan N 38° 40' 32" W a distance of approximately twenty nine and fifty nine hundredths feet (29.59’) to an iron pipe found;

Thence by land of said Cowan N 38° 40' 32" W a distance of twenty two and eighty one hundredths feet (22.81’) to an iron rod found at land of Lee G. Lajoie;

Thence by land of said Lajoie, land of Alvin R. and Yolanda Jones and land of Hiram C. & Marybeth H. Morrill N 33° 27' 23" W a distance of seven hundred sixty six and fifteen hundredths feet (766.15’) to a point at land of Ronald L. & Rosanne Marie Kubera Morreau;

Thence by land of said Morreau N 21° 30' 11" W a distance of two hundred eighty eight and seventy seven hundredths feet (288.77’) to an iron rod to be set at the southwesterly corner of new Lot 1, being the northwesterly corner of the parcel herein described;

Thence, by said new Lot 1, and by new Lots 2, 3, 4, 5 and 6 S 72° 01' 15" E a distance of eight hundred twelve and four hundredths feet (812.04’) to the POINT OF BEGINNING, containing approximately 332,589 square feet or 7.63 acres.

Being shown as Remainder Lot 12 (Open Space) on plan entitled: Subdivision Plan prepared for Strategic Contracting Company, LLC Assessor’s Map 122 Block 3 Lot 12 Hoit Road Concord, New Hampshire. Scale: 1”=50’ Date: September, 2016 (with revisions). Prepared by T. F. Bernier, Inc. of Concord, New Hampshire, to be recorded at the Merrimack County Registry of Deeds.