DECLARATION OF USES AND COVENANTS (“DECLARATION”)

 

            This Declaration made as of the ___ day of ________, 2007 by PHILMET CAPITAL GROUP, LLC, a Delaware corporation, with offices at 295 Madison Avenue,  New York, New York 10017 (hereinafter referred to as “Declarant”).

 

W I T N E S S E T H:

 

                        WHEREAS, Declarant is the record and beneficial owner of real property known as the Corinth Mills Industrial Park located within the Village of Corinth and/or Town of Corinth, County of Saratoga, State of New York, which real property is more particularly bounded and described on the legal descriptions attached hereto as Schedule  “A” (the “Site”); and

 

                        WHEREAS, Declarant, the Village of Corinth (the “Village”) and Town of Corinth (the “Town”) have entered into a Site Development Agreement Providing for Declaration of Uses and Covenants dated as of the ___ day of ________________, 2007 (the “Agreement”), which Agreement provides that Declarant execute this Declaration with regard to its future use and development of the Site (the “Declaration”); and

 

                        WHEREAS, the beneficiaries of this Declaration are the Village of Corinth and the Town of Corinth (the “Beneficiaries”); and

 

                        WHEREAS, Declarant has agreed under the circumstances set forth herein to restrict the use of the Site; and

 

WHEREAS, the use restrictions and other matters set forth in this Declaration shall constitute covenants running with the land and will be binding upon all parties having any right, title or interest in the Site, or any part thereof, and their heirs, successors and assigns including, but not limited to, Declarant, its successors, assigns, administrators, trustees in bankruptcy, receivers, referees in foreclosure and all other persons and/or entities that succeed to Declarant’s title to the Site, and will restrict as well as inure to the benefit of each owner of the Site.

 

                        NOW, THEREFORE, in consideration of Ten and No/100 ($10.00) Dollars, the additional consideration provided by the Beneficiaries as set forth above, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Declarant hereby declares and agrees that any use and/or occupation of the Site:

 

1.                  Shall not include the collection, storage, concentration, burning or other processing of municipal solid waste as that term is defined as follows by Part 360 of the New York State Department of Environmental Conservation’s Solid Waste Management Regulations (the “DEC Regulations”):

 

Municipal solid waste means combined household, commercial and institutional waste materials generated in a given area. 

 

6 N.Y.C.R.R. § 360-1.2(106).  Municipal solid waste is further defined by the DEC Regulations as follows:

 

(30) Commercial waste means solid waste generated by stores, offices, restaurants, warehouses and nonmanufacturing activities at industrial facilities.

 

(86) Household waste means solid waste discarded from single or multiple dwellings, hotels, motels, campsites, public and private recreation areas, ranger stations and other residential sources.

 

2.                  Shall not include the collection, storage, concentration, burning or other processing of construction and demolition (C&D) debris as that term is defined by Part 360 of the DEC Regulations.  Specifically excluded from the definition of C&D debris for the purposes of this Declaration are trees and uncontaminated wood and/or wood chips classified under Part 360 of the DEC Regulations as “land clearing debris” generated from activities such as land clearing and grubbing, utility line maintenance or seasonal or storm related cleanup.

 

3.                  Shall not include the conversion and processing of timber into wood chips except in a fully enclosed building.  

 

4.                  Shall comply in all other respects to the provisions of the Village and Town of Corinth’s Zoning Law.

 

5.                  The Village and Town, respectively, shall have the independent right to seek compliance with this Declaration by commencing action in any court of competent jurisdiction for specific performance.

 

6.                  Failure of the Village and/or Town to enforce the terms hereof will in no event be deemed a waiver of the right to do so later in time.

 

7.                  This Declaration may not be amended except by an amendment signed and acknowledged on behalf of Declarant or its successor in interest, the Village and the Town in a form required for the recording of deeds.

 

8.                  The duration of the matters set forth in this Declaration shall be perpetual, except that this Declaration shall automatically expire and be of no further force and effect, in the event that within three (3) years of the recording of this Declaration:  SUFFICIENCY OF THREE YEAR TIME FRAME IS SUBJECT TO THE VILLAGE CHRONOLOGY

 

(a)                The Village and/or Town arbitrarily, capriciously, or summarily refuses to grant all necessary final and unappealable land use and zoning approvals from the Beneficiaries to: (i) construct an approximately 112,000 square foot manufacturing facility which will produce plastic consumer goods (the “Facility”); and (ii) upgrade, expand and modernize the existing power plant on the Site for the use of wood and/or traditional energy sources, such as natural gas or coal, to supply clean and environmentally responsible energy to serve the Facility and potentially supply surplus energy to the electrical grid (the “Power Plant,” collectively with the Facility, the “Application”), provided that failure to obtain said approvals is through no fault of the Declarant;

 

(b)               The Village and/or Town commences eminent domain proceedings to condemn all or a portion of the Site;

 

(c)                The Village and/or Town enacts a Moratorium preventing Declarant from processing the Application; and/or

 

(d)               The Village and/or Town adopts any zoning amendment that would preclude the processing and/or granting of any approvals in connection with the Application.

 

9.                  This Declaration shall not prevent the collection, storage and ultimate off-site disposal of any municipal solid waste or garbage generated on-site.

 

10.              This Declaration shall not prevent the deposit into the existing on-site paper sludge landfill (the “Landfill”) of any and all industrial waste, as that term is defined by Part 360 of the DEC Regulations, generated from any duly approved industrial use(s) on the Site, nor does it expressly grant the right to do so.  The use of the Landfill shall be subject to the issuance by the DEC of a permit pursuant to the DEC Regulations permitting such usage, and shall be subject to the provisions of the Local Law Amending the Corinth Town Code Relating to the Disposal of Waste, adopted _________, 2007, and any approvals required thereunder.

 

11.         Philmet acknowledges that its initial proposal for the Power Plant contemplates the usage of wood and/or traditional energy sources, such as natural gas or coal, and not industrial waste, for the generation of energy.  Philmet agrees not to submit an application to the Village to change or alter the approved energy source utilized by the Power Plant until such time as the Facility is constructed, and operation of the Facility commences.  Philmet acknowledges that any change of energy source is subject to applicable Village and/or Town approvals.  Nothing herein shall be construed as constituting approval of any energy source.

 

Dated this ___ day of ___________, 2007 at ____________________, New York.

 

 

                                                            PHILMET CAPITAL GROUP, LLC

 

 

 

By:_____________________________

ACKNOWLEDGEMENT

 

STATE OF NEW YORK               )

                                                            )            ss.:

COUNTY OF _____________          )

 

On the __ day of ________, 2007, before me, the undersigned, a notary public in and for said state, personally appeared ____________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity as ____________ of Philmet Capital Group, LLC, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

 

 

 

 

 

                                                           

                Notary Public