20041076 Ver 1_COMPLETE FILE_20040430

?QF ,NAT FqQ Michael F. Easley, Governor
`Q G William G. Ross Jr., Secretary
Cp r North Carolina Department of Environment and Natural Resources
7 ?
.? Alan W. Klimek, P.E. Director
Division of Water Quality
September 2, 2004
DWQ Project # 04-1076
Lincoln County
Duke Power
526 South Church Street
PO Box 1006
Charlotte, NC 28201-1006
Attn: William S. Ambrose, Senior Lake Management Representative, Lake Mgt. Fossil Hydro Group
Re: Lincoln County, North Carolina - Beatty's Ford Access Area Lease, Lake Norman
Dear Mr. Ambrose:
The N.C. Division of Water Quality (DWQ) received your letter dated April 29, 2004. In your letter
you requested suggestions on the proposed Beatty's Ford Access Area Conceptual Site Plan. You
requested this information within 30 days. The DWQ apologi2 s for not responding within 30 days of the
date of your letter. Your information was temporarily lost andas just recently located. Please note that
the proposed development will need to comply with the Catawba\'Buffer Rule, 15A NCAC 02B .0243 and
the Water Quality Certification rules, 15A NCAC 0211.0500. You may obtain copies of these rules from
the DWQ website at http://h2o.enr.state.nc.us/admin/rules/. Any requests for approval to impact
protected riparian buffers should use our PCN application which can be down loaded from our website at
http//h2o.enr.state.nc.us/ncwetlands/pcn.html . In addition, the project may require the use of General
Water Quality Certification No. 3373. You may obtain a copy of this certification from our website at
http://h2o.ehnr.state.nc.us/ncwetlands/GC3373.pdf .
Please be aware that this letter does not approve any impacts to wetlands, streams, waters and/or
buffers. Please call me at 919-733-9726 if you have any questions regarding or would like to set up a
meeting to discuss this matter.
Sincerely,
Bob Zarzecki, ES-III
401 Oversight / Express Review Unit, DWQ
cc: Alan Johnson, DWQ Mooresville Regional Office
File Copy
Central Files
401 Wetlands Certification Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] /FAX [phone]/ Internet: http://h2o.enr.state.nc.us/ncwetlands
NO e
Carolina
Naturally
An Equal Opportunity/Affirmative Action Employer -50% Recycled/10% Post Consumer Paper
DP Duke
Power®
A Duke Ener Company
April 29, FC 04
Dear Mr. Dorney:
wETIANDS1401 GR
QUP
APR 3 0 2004
dYgTERQUALItYSEiTfaN
Duke Power
526 South Church Street
P.O. Box 1006
Charlotte, NC 28201-1006
^41076
Re: Lincoln County, North Carolina - Beatty's Ford Access Area Lease
Duke Power Company is preparing to enter into a lease with Lincoln County, North
Carolina to develop and manage additional public recreation amenities at Beatty's Ford
Access Area on Lake Norman. Enclosed is the Draft Lease Package that includes the
Beatty's Ford Access Area Conceptual Site Plan (Exhibit B). The site plan details a
phased approach for facility development and operation. The narrative also identifies
required financial resources including the County's plans to apply for NC Parks and
Recreation Trust Fund grants. We fully support Lincoln County's proposed plan and
would appreciate your review and any suggestions for improvement.
The draft lease, including the conceptual site plan, has been developed consistent with a
March 30, 2000 Public Access Area Agreement between Duke Power and the North
Carolina Wildlife Resources Commission (NCWRC). This cooperative agreement
(Exhibit D) provides that NCWRC 1) will enforce the laws of the State of North Carolina
and its own regulations, and 2) maintain the portion of the access area (including the
existing boat launching and parking facilities), subject to the agreement - as identified on
the Conceptual Site Plan. The County, the NCWRC, and Duke Power will continue to
coordinate activities for the enhancement, operation, and maintenance, of Beatty's Ford
Access Area public recreation opportunities.
In approving Duke Power's 2001 Shoreline Management Plan, the Federal Energy
Regulatory Commission confirmed its support of Duke Power's intent to lease Beatty's
Ford Access Area to Lincoln County, and the County's proposed conceptual development
plan.
We would appreciate receiving any suggestions you may have on the Beatty's Ford
Access Area Conceptual Site Plan within thirty (30) days. If you have questions or need
more information, please call me at 704-382-8587. Thank you for your assistance.
Sincerely,

William S. Ambrose
Senior Lake Management Representative
Lake Management
Fossil Hydro Group
Enclosure
V1, ?? , \? I
y,P ,y {
cc with enclosure:
Stan Kiser
County Manager
115 W. Main Street
Lincolnton, NC 28092
US Fish and Wildlife Service
% Mr. Mark Cantrell
160 Zillicoa Street
Asheville, NC 28801
North Carolina Department of Cultural Resources
Division of Archives and History
% Ms. Renee Gledhill-Earley
4617 Mail Service Center
Raleigh, NC 27699-4617
North Carolina Department of Environment
And Natural Resources
Division of Parks and Recreation
Recreation Resources Services
% Ms. LuAnn Bryan
2090 US Highway 70
Swannanoa, NC 28778
North Carolina Department of Environment
And Natural Resources
Division of Water Quality
% Mr. John Dorney
Parkview Bldg.
2321 Crabtree Blvd.
Raleigh, NC 27604
North Carolina Wildlife Resources Commission
Engineering Services
Mr. Gordon Meyers
512 North Salisbury Street
Raleigh, NC 27604
North Carolina Department of Environment and Natural Resources
Division of Environmental Health
Public Water Supply Section
Regional Engineer
Britt Setzer
EX0IBlTA
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LOCATION MAP NOT TO SCALE
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NOTE:
THIS MAP IS NOT A CERTIFIED SURVEY AND HAS NOT BEEN
REVIEWED BY A LOCAL GOVERNMENT AGENCY FOR COMPLIANCE
WITH ANY APPLICABLE LAND DEVELOPMENT REGULATIONS.
"P?IEILIlVJ[INARY PLAT"
NOT FOR RECORDATION, CONVEYANCES, OR SALES
LAKE NORMAN
DUKE ENERGY CORP.
UMI-26
DB. 135-P. 114
AREA LEASED TO
LINCOLN COUNTY SHERIFF'S DEPT.
/ REQUEST: 98126
AREA: 0.21 ACRES
Exhibit is
LINCOLN COUNTY, NORTH CAROLINA
BEATTY' S FORD ACCRS S AREA
CONCEPTUAL SITE PLAN
LINCOLN COUNTY, NORTH CAROLINA
BEATTY'S FORD ACCESS AREA
CONCEPTUAL SITE PLAN
OR
3 0 2004
Phase I: Years 1 to 3 wmeR
The following items will be purchased and installed or constructed within thrers of
lease execution. A North Carolina Parks and Recreation Trust Fund (PARTF) grant
application will be submitted for the 2005 cycle for Phase I development. County funds
will provide the local match for the PARTF grant. Staff and community volunteers will
also pursue private donations and sponsorships.
$ 3,750 Picnic Tables & Trashcans - East Lincoln Betterment Assoc. has received a
- grant for $ 1,200 to purchase waste and recycling receptacles following lease
execution. A volunteer organization has agreed to empty and monitor these
receptacles. The County will purchase a minimum of six picnic tables and six
trash bins and recruit volunteers for installation at various locations.
$ 3,750 Disc Golf - Volunteers have located nine holes for the site. The County will
purchase the equipment and volunteers will clear needed brush and tree limbs and
install the baskets. Natural tee pads will be used as opposed to concrete, and
markers will blend with the natural setting.
$65,000 Restroom Complex - Restroom facilities are a high priority for the public and
portable facilities will be provided until the rstroom building is complete. The
building will be designed suitable for expansion to accommodate a concessions
area in the future.
$10,000 Walking Trail - Trail along perimeter of park property will be identified and
clearing begun. Natural or "rock dust" surfacing will be used initially until
funding for paving secured (Phase II).
$45,000 Playground Equipment - Installation of multi-station equipment; at least one
piece for ages under 5 and one for ages 6 and up including appropriate surfacing.
$75,000 Shelter s) - Construction of one centrally located shelter to serve medium size
groups, 50 to 75 people. Donations and volunteers will supplement county
funding.
$30,000 Pump-out Station - A marine pump-out for boats will be constructed near the
existing boat ramps. This facility will require construction of a new finger dock.
$ 2,500 Sailboat Storage - A small structure, with a fenced enclosure, will be built for
storage of several small (1 - 2 person) watercraft for use in providing sailing
lessons.
Beatty's Ford Conceptual Plan-2004.doc 1 04/30/04
LINCOLN COUNTY, NOX11-1 CAROLINA
BEATTY'S FORD ACCESS AREA
CONCEPTUAL SITE PLAN
$ 1,000 Volleyball Court - A sand court will be constructed adjacent to the main shelter.
The second court shown will be added in Phase H.
$ 7,500 HeM Landscape Buffer - Natural wooded area will remain between the active
park elements and the adjoining neighborhood (separated by Trillium Trail, a
residential street). Supplemental plantings of native shrubs will be added to
reduce the noise and foot-traffic impact on the neighboring homes.
$ 500 Open lawn/green space - Open space will be provided for picnics on the lawn and
-games.
Phase II: Years 3 to 5
County staff will apply to local foundations and for additional PARTF grants for Phase II
funding. The two to three year period will allow for sufficient county funding allocations to
provide the required match. Staff and community volunteers will again actively pursue
private donations and sponsorships to speed up this timeframe. Targeted donations (for a
specific item such as a picnic pavilion or a horseshoe or volleyball court) by an individual
or civic group may have a positive impact the schedule. The planning committee endorses
a "jump-ahead" concept if a donation is linked to a specific park feature.
$ 50,000 Second Entrance/Picnic Cul-de-sac - widening of second entrance and
construction of cul-de-sac with pull-in parking to support development of picnic
pavilions.
$ 60,000 Picnic Pavilions - Eleven picnic facilities more suited for families (15 to 20
people) are scattered throughout the park - along the second entrance/cul-de-sac,
by the water, near the open lawn/green space, and near the future amphitheatre.
Six are planned for construction in Phase II, and five in Phase III.
$ 1,000 Volleyball Court - A second sand court is planned.
$ 500 Horseshoe Courts - Two courts are planned.
$ 20,000 Trail improvements - Extension of walking trail is scheduled.
Beatty's Ford Conceptual Plan-2004.doc 2 04/30/04
LINCOLN COUNTY, NORTH CAROLINA
BEATTY'S FORD ACCESS AREA
CONCEPTUAL SITE PLAN
Phase III: Years 5 - 7
Schedule for completion of these items is five to seven years after lease execution. Actual
Grant awards and County financing will determine construction schedules. County staff
will apply to local foundations and for additional PARTF grants for funding for Phase III.
County funds will provide the match required for these grants. Staff and community
volunteers will pursue private donations and sponsorships.
$ 5,000 Open Air Amphitheatre - An area suitable for group meetings, class instruction,
programs, etc. is planned. Area will be simple in design using wooden benches in
a modified amphitheatre style.
$50,000 -Secondary Entrance Paving and Parking expansion - If not completed in Phase II,
paving of the secondary entrance/picnic cul-de-sac and pull-in parking will be
completed. Additional vehicle parking will be provided adjacent to the existing
vehicle and trailer parking lot
$15,000 Gazebo and Fishing Pier - A small fishing pier with Gazebo is planned. The
County will coordinate development plans with the NC Wildlife Resources
Commission.
$50,000 Water Play Feature - A spray park or water fun area for young children is planned
adjacent to the playground and large shelter area.
$60,000 Picnic Pavilions - The six remaining picnic pavilions will be constructed
as noted in Phase II.
$25,000 Trail Paving - Paving of walking trails.
Operations and Fees
1. Hours of Operation for County Park facilities are for daylight hours only.
2. Free Public Boat Ramp and Vehicle/Trailer Parking will be available 24/7
3. A User Fee will apply to the boat pump-out facility. The initial fee for this service is $5.00.
4. Shelter rental fees (typically $10 for 2-3 hours; $15 for 4-6 hours; and $25 for 7+ hours)
will be assessed as park use increases. These fees will offset maintenance and scheduling
costs.
5. Participation fees will be assessed for sailing and any other classes scheduled to be held in
the park.
Beatty's Ford Conceptual Plan-2004.doc 3 04/30/04
0
Exhibit C
Annual Operational Repo 444,,,
I. Basic Information 4PR 4t7j1'9(Z/Jb
A. Facility Name U 200¢
B. Lessee Name ?t?lY6?
C. Name, Address, E-Mail, Phone Number of primary ?&Qtact person
D. Reporting Period
II. Facility Summary
A. Structural Modifications - identify any facilities or amenities that
were retired or added during the report period. For additions, also
provide a copy of the Lessor's approval letter.
B. Facility Inventory -inventory of all structures and amenities on the
leased premises at the end of the reporting period.
III. Third Party Agreement Summary
A. Identify any contracts or agreements with third parties for the sale
of goods or services on the Leased Premised during the reporting
period, and provide a copy of the Lessor's approval letter for each.
IV. User Summary
A. Provide a summary of the numbers of public recreational users of
the Leased Premises during the reporting period.
V. Financial Summary
A. Total Debits
1. O&M - Lessee's total Operating and Maintenance expenses for
the Leased Premises during the reporting period.
2. Capital - Lessee's total payments toward obligations incurred
for capital improvements on Leased Premises during the
reporting period.
3. Total - Lessee's total debits for the Leased Premises during the
reporting period.

B. Total Credits
1. User Fees - Total income obtained by Lessee from users of the
Leased Premises during the reporting period.
2. Payments from Vendors or Third Party Contractors - Total
income obtained by Lessee from vendors and contractors
selling goods and/or services from the Leased Premises during
the reporting period.
3. Other Lessee Credits - Total contributions received from other
sources (e.g. donations) by Lessee for use of the Leased
Premises during the reporting period.
4. Grants - Total of funds provided by grant sources for O&M or
Capital Improvements during the reporting period.
-5. Total Credits - Lessee's total credits for the Leased Premises
during the reporting period.
C. Net Cost of Operation - Total Debits minus Total Credits
1. Note: If total Debits are less than Total Credits, provide an
explanation of how excess credits were used, to demonstrate
compliance with the lease terms, Paragraph 7: User Fees and
Hours of Operation.
D. Cumulative Total Capital Investment
1. Cumulative total investment Lessee has made, by itself,
through third party contractors, from grants, or from donations
during the life of the lease.
VI. Insurance Identification
A. Provide a brief description of the current means of compliance
with the lease terms, Paragraph 30: Insurance by Lessee.
VII. Annual Inspection Results
A. Identify the names of participants and date of annual inspection
required by the lease terms, Paragraph 8: Joint Annual Inspection.
Identify any major action items required and the status of
completing each.
1
EXHt81T D
STATE OF NORTH CAROLINA ) wEr
COUNTIES OF ALEXANDER, BURKE, ) PUBLIC CCESSf1
CALDWELL, CATAWBA, FORSYTH, ) AGREEN3 ?R
GASTON, IREDELL, LINCOLN,
F )
MCDOWELL, MECKLENBURG, AND ZO
) 0
STOKES ) rr??Cri??
THIS PUBLIC ACCESS AREA AGREEMENT (Agreement) is made this 30th
day of March 2000, between DUKE POWER, A DIVISION OF DUKE ENERGY
CORPORATION, a North Carolina Corporation ("Grantor"), and the North Carolina
Wildlife Resources Commission (NCWRC), an Agency of the State of North Carolina
("Grantee");
WITNESSETH:
WHEREAS, Grantor has been licensed by the Federal Energy Regulatory
Commission (FERC), to operate the Catawba-Wateree Project (License Number 2232),
which impounds the waters of the Catawba River, including Lake James, Lake Rhodhiss,
Lake Hickory, Lookout Shoals Lake, Lake Norman, Mountain Island Lake and Lake
Wylie in North Carolina; and,
WHEREAS, Grantor owns and operates Belews Lake, which is an unlicensed
industrial cooling pond on Belews Creek at the intersection of Stokes, Rockingham,
Forsyth and Guilford Counties; and,
WHEREAS, Grantor owns the tracts of land, here-in-after referred to as "Public
Access Areas", the names, acreage and boundaries of which are shown in Exhibits A and
B attached hereto, adjacent to the aforementioned lakes which provide access for public
recreation purposes; and,
WHEREAS; Grantor desires to lease a portion of the Public Access Areas shown
in Exhibits A and B, to state and local governmental agencies, commercial vendors or
other interested parties, through its "Access Area Improvement Initiative", which is
designed to ensure the development and maintenance of a variety of high quality
recreational opportunities for the general public; and,
WHEREAS, the Grantee agrees to: (1) enforce the laws of the State of North
Carolina for which it is responsible and its own regulations on all parts of the Public
Access Areas which are the subject of this Agreement; and (2) operate and maintain the
Public Access Areas shown on Exhibits A and B, except for those portions ol'the Public
Access Areas that have been leased by Grantor to another entity; and,
3/1/2000 Pai,e I N< WRC A^rcem nl I INAI _1 ! ,!_
t

WHEREAS, Grantor has agreed to pay Grantee $125,000 annually for the
maintenance of the Public Access Areas which are the subject of this Agreement and
Grantee will make available for improvements on the Public Access Areas on an annual
basis a minimum of $125,000 for capital improvements on a matching fund basis, with
matching funding sources coming from but not limited the following sources: (1)
Grantor, (2) a state or local agency or other governmental agency, (3) a third party lessee,
or (4) donation from an individual.
NOW, THEREFORE, the parties enter into the following Agreement, subject to
the exceptions and reservations and upon the terms and conditions and for the purposes in
this instrument set out, for the portions designated as being maintained by the Grantee on
the Public Access Areas, shown on Exhibits A and B of this Agreement.
1. - Term: This Agreement shall become effective as soon as signed by the
parties hereto and shall remain in force until it is terminated by either party or on its
expiration date of August 31, 2008, whichever comes first. Except, however, this
Agreement may be renewed after the termination date, but Grantor shall not be obligated
to renew.
2. Previous Agreements: This Agreement will supersede all prior existing
agreements between Grantor and Grantee for any or all of the Public Access Areas
contained in this Agreement, and all such Public Access Areas are now subject to and
controlled by the terms and conditions of this Agreement.
3. Public Use of Facilities: Grantee will allow any recreation user of any
leased portion of the Public Access Areas to cross and use the portion of the Public
Access Area under control of Grantee, for the purpose of viewing the lake or any other
lawful recreation activity.
4. Law Enforcement: Grantee has the responsibility under this Agreement to
enforce the laws of the State of North Carolina for which it is responsible and to enforce
its own regulations, on all portions of all Public Access Areas listed in Exhibits A and B,
except those portions of the Public Access Areas that have been leased to another party.
5. Wildlife Protection Access: Grantee, its agents and assigns shall have the
rights of ingress and egress upon all of the Public Access Areas of Grantor designated on
Exhibits A and B, at any and all times for the protection and propagation of wildlife.
6. Annual Coordination Meeting: At least once each year, Grantor and
Grantee will meet, during the period of January to March, to discuss and coordinate
future development plans for improvements to the Public Access Areas. Proposed
improvements will follow the plan and schedule agreed upon in the most recent version
of Duke Power's Shoreline Management Plan, unless both Grantor- and Grantee agree to a
proposed revision to the plan and schedule. Potential projects for joint funding in any
given year will normally be presented and discussed during the previous year's
Coordination Meeting, with a final decision made not later than Jllne of the year before
3/1/2000 ?'ai t 2 Nt'XVIZ(' Agreement PINAI?-.' , doc

construction is to be initiated. Additional topics for the Coordination Meeting may
include any proposed changes in operating hours or the implementation or modification
of any user fees. Decisions on projects, operating hours and user fees must be acceptable
to both Grantor and Grantee in order to be implemented.
7. Joint Inspection: Grantor and Grantee will perform an annual joint
physical inspection of each, of the Public Access Areas included in this Agreement, to
insure the Public Access Areas are being maintained in a safe manner and to the levels
mutually acceptable to Grantor and Grantee.
8. Cost-Share: Grantor has agreed to pay Grantee a $125,000 per year fee
to maintain the access areas that are the subject of this Agreement. In return for this
annual fee, Grantee has agreed to provide a minimum of $125,000 per year toward capital
improvements on Public Access Areas, provided that matching monies are available on a
50-50 match basis. Matching funding can come from numerous sources, including but
not limited to (1) Grantor, (2) a state or local agency or other governmental agency, (3) a
third party lessee, or (4) donation from an individual. That portion of the funding
provided for capital improvements to match Grantee's funds may only be utilized for
improvements that directly benefit boating access users or bank fishing persons. The
annual cost-share amount can exceed $125,000 if the Grantee has additional funds
available for improvements to the Public Access Areas. Further, to insure Grantee retains
the potential to utilize "U.S. Fish and Wildlife Sportfish Restoration Funds", the source
of matching funds shall not be a federal government source. All capital improvements,
constructed with these matching funds, that are not located within the physical boundaries
of the Grantee managed portion of the Public Access Area, must remain accessible and
free of charge to boating access facility users and for bank fishing persons for the
duration of this Agreement. The Grantee's portion of the matching funds will normally
be paid via check to Grantor (or the adjacent lessee if the adjacent lessee's funds are
being matched) and not later than December 1 of the calendar year within which the
capital improvement was completed. The dollar equivalent for materials and labor may
on occasion be accepted from either party in lieu of an actual dollar payment, but such
acceptance will be project dependent and must be determined, in writing, prior to
initiation of any work on the capital improvement being funded.
9. Improvements: Grantee shall have the right to make additions or
modifications to its facilities at the Public Access Areas, to change operating hours of
such facilities and to implement or modify user fees not inconsistent with the purpose of
the Public Access Areas. Grantee shall submit such requests in writing to Grantor and
shall receive written approval from Grantor prior to initiating any work or instituting
changes to the hours or user fees within the Public Access Areas. Additions to or
modifications of any facilities will require the submittal of detailed plans, including but
not limited to construction plans and elevation drawings. Major additions or
modifications will typically require review by other entities and may require FERC
approval.
3/10000 Pwe I N1(AVIZC A,ticcmcnl IANAI _'-_' i die:

10. Major Repair Costs: When major "non-routine" repairs or replacement
projects become necessary, Grantor and Grantee will combine their available resources,
as necessary to make such repairs, including the above mentioned cost-share funding.
Further written approval by both parties must be obtained prior to work being initiated.
Major "non-routine" repairs may include, but are not limited to replacement of a pier,
boat ramp, road, or parking lot.
11. Termination: This Agreement or any part thereof may be terminated by
either party upon three (3) months written notice to the other. Grantor may terminate this
Agreement at any time if directed to do so by the FERC or its successor agency having
jurisdiction over hydroelectric reservoirs that are subject to the Federal Power Act. Upon
termination or expiration of this Agreement, Grantee shall have the right to remove any
and all buildings, apparatus and materials supplied by them for the purpose of this
Agreement for a period of ninety (90) days. If Grantee shall not have removed its
personal property, any remaining buildings, apparatus or materials shall become the
property of the Grantor.
12. Amendments: Amendments to this Agreement may be proposed by either
party upon thirty (30) days written notice to the other, and such amendments shall
become effective, if agreed upon by both parties and shall become effective on the date
such Amendment is signed by the parties hereto.
13. Transfer or Assignment: Grantee may not transfer or assign this
Agreement to any other party or entity.
14. Changes to Public Access Areas: Grantor reserves the right to move, alter
or change the location, boundaries or layout of any Public Access Area or private road
access to any Public Access Area, wherever and whenever it shall become necessary in
order to insure full public utilization of the area or to prevent any noxious or offensive
use of any area, or whenever the land then occupied by such Public Access Area or road
is necessary to the operations of Grantor. In the event the relocation of any Public Access
Area becomes necessary, Grantor will notify the Grantee and will attempt to relocate the
affected Public Access Area on land owned by Grantor and at a location satisfactory to
the Grantee. Grantor may add, remove or close all or any portion of any Public Access
Area, at any time, after notifying the Grantee of the proposed action.
15. Compliance with Federal State and Local Laws: Grantee agrees that its
use of the subject premises as herein provided will be consistent with all FERC orders
and regulations regarding recreational opportunities and development at licensed projects,
and all other applicable state, federal and local laws as well as all ordinances, rules,
regulations and sanctions of any regulatory body or governmental agency (state, federal
or local) having jurisdiction in the subject premises, and Grantee's use of the aforesaid
subject premises will comply with all applicable Duke Power Lake Management
requirements and will not endanger health or safety, create a nuisance or otherwise he
incompatible with the overall recreational use of (lie FERC Project No. 2232 and Belcws
Lake.
3/30000 1 INAL2-2; X1,1,
16. Notice of Changes to Design or Operation: Grantor will notify Grantee in
writing of all new orders issued by the FERC or any other applicable agency having
jurisdiction over the subject premises that in any way affect the design and/or use of the
Public Access Areas which are the subject of this Agreement.
17. Response to Increase in Recreation Use: Grantor will in good faith, for the
lakes aforementioned of the Catawba-Wateree Hydro Project, endeavor to accommodate
future increases in public recreation use of the lakes by arranging for the expansion of the
Public Access Areas which are the subject of this Agreement or by arranging for new
and/or replacement public recreation facilities on lands that are or may become available
for such purposes and when such land areas are consistent with the Shoreline
Management Plan and/or the operation of Grantor's business.
18. FERC License Conflicts: Except for the Belews Lake Public Access
Areas, this Agreement is subject to the terms and conditions of the license issued by the
FERC for the Catawba-Wateree Hydro Project. In the event of any conflict between the
terms and conditions of this Agreement and the terms of the license, it is agreed that the
terms of the license shall prevail.
19. Reservation of Use: The right to use the Public Access Areas which are
the subject of this Agreement for project purposes and for any other purpose consistent
with Grantor's business operations is hereby reserved to the FERC project licensee, its
successors and assigns.
20. Reservation of Authority: No terms or conditions herein contained shall
be construed as limiting or affecting in any way the authority of Grantor in connection
with its exercise of proper protection and administration of the Public Access Areas or its
FERC license, except NCWRC's responsibility for game and fish conservation.
21. Boat Launching Facilities: Grantor will provide public boat launching
facilities for the Public Access Areas, where such facilities are shown on Exhibit A and
Exhibit B, for the duration of this Agreement. Should relocation or replacement of public
boat launching facilities be required for any of the Public Access Areas that are the
subject of this Agreement, the major repair cost measures defined in Item 10 will be
implemented to determine the funding for such relocation or replacement.
22. Si na e: Grantor will provide all information, entrance and regulation
signs as required by the Grantor's FERC License and Grantee will erect and maintain all
said signs.
23. Bounda!y Si _,e: The Grantee will demarcate (lie boundaries of each
Public Access Area contained within this Agreement with NCWRC approved signs.
i/1i)000 1'aoc N( WRCA-o cnicnt VINAI_-1-2"din'

24. Fire Protection: In the event of a fire within or threatening to the lands or
facilities of any of the Public Access Areas which are a part of this Agreement, Grantee
agrees to assist Grantor with the protection of the Public Access Area against such fire.
25. Maintenance: Grantee shall provide routine maintenance and repairs at all
the Public Access Areas which are the subject of this Agreement, including but not
limited to those items specified in `a' through `o' below.
a. Entrance Road: Entrance roads are to be maintained in a safe, open and
clear condition and repaired on an as needed basis to ensure roads maintain a good
quality surface and drainage. Repairs may include, but are not limited to: repairing
asphalt and maintaining gravel drives clear of ruts by grading and/or adding stone,
keeping side ditches, water bars and culverts clear of water flow impediments,
painting lines, and repairing guardrails.
b. Parking Lots and Turnarounds: Parking lots and turnarounds are to be
maintained in a safe condition and repaired on an as needed basis to ensure good
drainage. Repairs may include, but are not limited to: repairing asphalt, repainting
faded lines and letters, painting new lines and letters as needed, repairing curbing,
applying asphalt sealer, maintaining gravel parking lots clear of ruts and ensuring
proper drainage by grading and/or adding stone, keeping all areas clear of debris,
weeds and grass.
c. Piers and Docks: Any piers and docks provided are to be maintained in
a safe condition and repaired on an as needed basis to ensure user safety. Repairs
may include, but are not limited to: replacing broken or defective parts, replacing
broken or loose pilings, replacing defective floats, insuring pier sections remain
attached to each other, maintaining stone level around pier abutments and ramps,
insuring nails and fastening devices are flush with pier surfaces, ensuring boat
bumpers provided remain in sound condition, and maintaining handrails free of any
rough or sharp areas.
d. Boat Launch Ramps: Boat Launch ramps are to be maintained in a safe
condition and repaired on an as needed basis to ensure user safety. Repairs may
include, but are not limited to: keeping boat ramps clear of debris and silt or any
items that could hinder boat launching, maintaining stone at a sufficient level along
edges and ends of ramps, and repairing any holes in ramps.
C. Drainage Control Devices: All drainage control devices provided on site
are to eliminate erosion problems and are to be maintained in a safe condition and
repaired on an as needed basis to ensure good drainage. Repairs may include, but
are not limited to: correcting any erosion problems and keeping drainage ditches
and culverts clear of all debris, trees and other drainage impediments.
f. Access Area Shoreline: The entire access area shoreline is to be
maintained in a safe condition and repaired on an as needed basis to ensure salety of
N('1VK(' Aoliccmciu HNIAI_'-2 : ?': ?.
WI /2000 1%1.1"C 0
x
f
recreation users and keep erosion under control. Repairs may include, but are not
limited to: maintaining or adding erosion control materials and removing brush or
trees that threaten to displace erosion control materials or that may threaten the
integrity of the bank.
g. Dead or Diseased Tree Removal: Remove all dead or diseased trees or
trees and limbs that have fallen on the Public Access Area that are impeding use or
maintenance of the area.
h. Tree Maintenance: Ensure that all trees bordering parking areas, roads
and/or walkways do not block driver vision, do not interfere with the movement of
pedestrians, vehicles and boats on the roads or in parking areas, and do not impede
mowing and maintenance of the Public Access Area. Trim any trees that may block
vision or interfere with vehicle and boat movement or that have dead limbs that
could injure recreation users if they fall.
I. Trash Removal: When trash receptacles are placed in Public Access
Areas, ensure that such receptacles are maintained in a safe and sanitary condition
and are adequate to handle the volume of debris normally disposed of in the area.
All trash receptacles should be emptied weekly or more often so that the
accumulation of trash/refuse/junk does not present a safety or health hazard in the
Public Access Area. Heavily used Public Access Areas may require more frequent
trash removal and frequency of trash removal may need to be increased during peak
recreation seasons and on weekends. All trash should be removed from the grounds
before mowing. Additionally, all refuse and trash that has been scattered around the
Grantee managed portions of the Public Access Areas should be removed on a
weekly basis or as often as needed to ensure a safe and hazard free area.
j. Grass and Ground Cover: Ground cover, be it shrubs, grass, or mulch,
will be provided throughout the Public Access Areas and should be maintained in a
safe, environmentally sound, and aesthetically pleasing condition. Mulch and/or
grass areas should be maintained at a height of not less than three (3) inches or more
than eight (8) inches. When grass is provided, it is to be mowed to the ditch or tree
line along roadways, to the tree line around parking lots and to the tree line in open
areas. Mowing an additional four (4) feet (or one mower width of at least three [3]
feet) on the opposite side of the ditch line shall be done in May, August and
November to keep the growth in check.
k. Use of Herbicides: Environmentally acceptable herbicides approved by
the Environmental Protection Agency and/or the North Carolina Department of
Agriculture may be utilized in Public Access Areas, on an as needed basis to control
unwanted vegetation in driveways, parking lots, turnaround areas, designated foot
paths, stabilized shoreline areas and on boat ramps. Herbicide may be applied to the
first 6 (six) inches of grass around the edges of the parking lots, turnarounds and
roads and around the signposts, trash can pads, light poles and culverts to minimize
the amount of trimming needed.
3/;/2000
1 iNAI I J011
7
f
i(
i
1
1. Use of Fertilizer: Use of fertilizer in the Public Access Areas is
permitted on a seasonal and as needed basis. Public Access Areas should be
fertilized twice per year or at the times recommended and with the type of fertilizer
recommended for the type of material planted and being treated.
m. Use of Grass Seed: Use of grass as a ground cover in Public Access
Areas is permitted The timing of, preparation for and application of grass seed will
be dependent on what is recommended for the type of seed being applied in the area.
n. Si na e: All signage provided on the Public Access Area must be
maintained in safe and readable form.
- o. Li>7hting and Utility Lines: Any lighting provided within the Public
Access Areas must be installed to current building and electrical code requirements
and maintained in a safe manner. The Grantee will assume all costs associated with
any lighting and its maintenance provided at a Public Access Area, including but
not limited to payment of power bills. To the maximum extent practicable, new or
modified utility lines and/or boating facilities should be designed so that overhead
utility lines do not cross boat access roads, access parking lots, turn-around areas, or
launch ramps. Any overhead utility lines that have no other practical alternative to
being within the areas defined above, must be designed with the height clearances
required by the National Electric Safety Code or any other applicable electrical
safety codes, whichever is the most restrictive and provides for the greatest height.
26. Leases of Portions of the Public Access Areas: Grantor has the right to
lease portions of the Public Access Areas to state or local agencies, third parties or
individuals for the provision of additional public recreation facilities and the terms of this
Agreement will become a part of the lease on other portions of the Public Access Area,
subject to the approval of all parties. The portion of the Public Access Area which is the
subject of this Agreement with the Grantee, as shown on the Public Access Area Plats in
Exhibits A and B, will be excluded from the lease with any other agency, third party or
individual.
27. Entr? byAdditional Lessees: Grantor has the right to lease portions of the
Public Access Area, beyond that portion of the area maintained by the Grantee and such
Additional Lessees, its agents and representatives, at all reasonable times may enter, cross
and use the portion of the Public Access Areas maintained by the Grantee, for the purpose
of installing and maintaining utility lines, roads and trails according to the previously
approved facilities improvement plan for the Public Access Area.
28. Utility Easement. Grantor reserves an easement to build, construct, maintain
and operate electric distribution/transmission lines on, over, along and above the leased
premises. Grantor also reserves the right, privilege and easement to erect, construct, reconstruct,
replace, maintain and use towers, poles, wires, crossarms and other appliances and fixtures for
the purpose of' transmitting or distributing electric power, for said Grantor's comnwnication
purposes, and for any other purpose consistent with Grantor's business opcr.itions, together with
i/ /?t)t)O P1?,c $ N<'11'R?' Apra nxnr IINAI? ' 1 ?i,ic

the right to keep said lines, appliances, and fixtures free of structures, trees and other
objects that may endanger or interfere with same.
29. . Flooding: Grantor reserves the unlimited right to back or flood the
waters of the Catawba River and its tributaries from time to time and at any and all
times over and upon the leased premises or any portion of the same, to such extent the
flooding may be necessary or convenient in connection with the practical operation of
its hydroelectric power plants located or to be located in the future upon the Catawba
River. Grantee agrees that any damage it may suffer as a result of such flooding shall
not be claimed or charged against Grantor. Grantee hereby waives all claims against
Grantor for damages resulting from floods that may occur on the Catawba River or any
tributary thereof.
30. FERC Project Restoration: Grantor shall be under no obligation to
Grantee to maintain or continue to operate the Project and should said Project be
damaged, destroyed or removed, the Grantor shall be under no obligation to restore or
rebuild same, and Grantee hereby waives all claims against Grantor for damages to or
destruction or removal of the Project.
31. User Fees: User fees on that portion of the Public Access Area
contained in this Agreement and under control of Grantee, may only be charged under
the following conditions:
a. Review Process: At least sixty (60) days prior to implementation of
the user fees, all parties will be provided with a copy of the proposed fee
schedule and a written proposal describing how the fees will be collected and
how the proceeds will be distributed and utilized. (Note: As a general rule,
proceeds from the user fees should be equitably shared among the parties
considering the site uses to which the fees apply and the relative proportion of
each party's operating and maintenance expenses for those applicable site uses.)
b. Prior Written Approval Required: The user fees will not be
implemented until written approval has been received from all involved parties.
c. Review of User Fees: User fees established for the Public Access
Areas on the lakes of the Catawba-Wateree Hydro Project or Belews Lake must
be a reasonable and customary amount and the user fees proposed or established
for the Catawba-Wateree Hydro Project Lakes are subject to review and
approval by the FERC to ensure license compliance.
d. Exemptions from User Fees: Grantor's employees, Grantee's
employees, third party lessee employees, local law enforcement officials, local
environment and public health officials, and local emergency response crews, or
any other official operating in his/her official capacity will be exempt from these
user fees.
32. Indeninity: Grantee, to the extent allowed by applicable North Carolina
laxv_ specifically as may he authorized by the General State of North Carolina, Article
31 _ Chapters 143-291, entitled " ort Claims Against State Departments and Agencies",
covenants to indemnify and save harmless Grantor front and against and- and all claims.
:3!2000 Pa!-'e y ? ( \L RC Agrc n??nt I INAt2-21.do,:
liability, loss or damage, arising from any conduct, work or thing done under the terms of
this Agreement, to include injury or damage to any person or persons, including Grantor,
or to the property of any person, or persons or corporations occurring on or within the
Public Access Areas which are the subject of this Agreement, as the result of any activity
of Grantee, its agents, employees, or any other person or entity under the direction of the
Grantee, and for any protection, mitigation and enhancement measures or activities
required by FERC or its successor agency in connection with the activities conducted by
Grantee hereunder. Upon the State of North Carolina (State) contracting with an entity
for the purpose of constructing any facilities on the Public Access Areas that are the
subject of this Agreement, Duke Power, a division of Duke Energy Corporation shall be
named as an insured or an additional insured on a policy of insurance covering the scope
of such activity prior to the commencement of any activity by the State, its agents or
contractors. Any contractor or subcontractor performing work on property that is the
subject of this easement shall have in place prior to commencement of any activity and
during the performance of any activity, the following types of insurance and coverage
limits:
*General Liability Coverage -- Two million dollars per occurrence
*Auto Liability -- one million dollars per occurrence
*Workers Compensation within statutory limits
*Employees Liability - five hundred thousand dollars each accident
*Contractor's Pollution Liability Coverage -- one million dollars per occurrence
33. Limitation of Liability: Grantor and Grantee agree and warrant that any
and all work performed within the Public Access Area will be perfon-ned with
professional thorougluiess and using acceptable standard business practices. Grantor's
total cumulative liability to Grantee for claims of any kind whether based on contract, tort
(including negligence and strict liability and excluding willful misconduct), under any
warranty or otherwise, for any loss or damage relating to this Agreement, shall in no case
exceed the cost of completing the work in accordance with acceptable business practice,
and Grantee releases Grantor from all further liability in excess of this amount for any
work performed under this Agreement. Grantee further releases Grantor from any and all
liability resulting from any injury of any employee of Grantee or anyone performing any
service at the direction of the Grantee on the Public Access Area, excluding any acts of
willful misconduct of the Grantor.
Neither party shall be liable, whether based on contract, tort (including negligence and
strict liability), under any services or work performed relating to this Agreement, for any
consequential, indirect, special, or incidental loss or damage, any damage (except to the
extent damage resulted from willful misconduct) to or loss of any property of equipment.
3/3/2000 Page 10

This limitation of, or protection against liability shall also protect directors, officers,
employees, agents, consultants, suppliers, subcontractors, and affiliated entities and their
directors, officers, employees, agents, consultants, suppliers, subcontractors, parents,
subsidiaries and affiliates of the Grantor and shall apply regardless of the fault (excluding
willful misconduct), negligence or strict liability of the respective party.
Grantee waives and will require its insurers to waive all rights to recovery and claims of
any kind, including rights and claims to which its insurers or another may be subrogated,
against Grantor arising out of damage to, loss of or loss of use of any of Grantee's
property, located on the Public Access Area, whether based on contract, tort (including
negligence and strict liability), under any warranty or otherwise. These waivers are
effective as to all damages to, losses or losses of use of property arising out of or relating
to this agreement or deficiencies in the services provided hereunder and Grantee hereby
covenants that no such action or claim shall be brought by or through Grantee on any
theory whatsoever. In the event Grantee or its insurers recover damages from a third
party for losses or damages to which the foregoing waivers apply, Grantee shall
indemnify and hold Grantor harmless against any liability for any such losses or damages
which said third party recovers from Grantor and any expenses (including attorney fees
and other cost of investigation and defense) related hereto.
The limitation of liability in this provision shall apply notwithstanding any other
provision of this Agreement.
34. Survival: Provisions of this Agreement for Termination #11, Limitations
of Liability #33, Survival #34 and the indemnification provision of this Agreement shall
survive the tennination or cancellation of this Agreement and shall remain in effect.
35. Notices: Wherever in this Agreement it shall be required or permitted that
notice be given by either party to this Agreement to the other, such notices must be in
writing and must be given personally or forwarded by certified mail addressed as follows:
To Grantor: Duke Power, a Division of Duke Energy Corporation
Attn: GEH&S, Environmental Engineering, Lake Management
EC 12Q
P.O. Box 1006
Charlotte, NC 28201-1006
To Grantee: North Carolina Wildlife Resources Commission
Division of Engineering Services
Attn: Division Chief
1720 Mail Service Center
Raleigh, NC 27699-1720
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be eXecrltcd
this the day and year first above written.
V3/2000 Page I I N("\V1, A rccmcm I-INnI?-23 doc
ATTEST:
'L, e- A ?.
Assistant Secretary
ATTEST:
C.-
Secretary
STATE OF NORTH CAROLINA
COUNTY OF
DUKE POWER, A DIVISION OF
DUKE ENERGY CORPORATION
By
Curtis Davis, Senior Vice-President
Power Generation Division
STATE OF NORTH CAROLINA
Executive Director
NC Wildlife Resources Commission
I, IJn?Y?CS a fl S. , a Notary Public for the above State and Counties, hereby
certify that Curtis Davis personally came before me this day and acknowledged that he is Senior
Vice-President, Power Generation Division of DUKE POWER, a Division of DUKE ENERGY
CORPORATION, a corporation, and that by authority duly given and as the act of said corporation,
the foregoing and annexed instrument was signed in its name by Curtis Davis, its Senior Vice-
President, Power Generation Division, sealed with its corporate seal and attested by
;;?kke_ Q. )A,arc"n"knn himself/herselfas its Assistant Secretary.
WITNESS -myknd and official seal, this the _?,Q_ day of 12000.
p _
Notary Public
My Commission Expires: 10-1'l- a0o?
[NOTARIAL SEAL]
1/3/2000 Page 12 WWW' ngiccnicni riNnI.2-2? doc
STATE OF NORTH CAROLINA
COUNTY OF 'Ztktki_
I, MfiV rAA? --Yt a Notary Public for the above State and Counties, hereby
certify that „/? ?e personally came before me this day and acknowledged
that he is Executive Director of the North Carolina Wildlife Resources Commission, and that by
authority duly given and as the act of said Agency of the State of North Carolina, the foregoing and
annexed instrument was signed in its name by cgAgl.Pis 2. tFjllwonv its
rcpwnvG ?t?ec.-? sealed with its corporate seal and attested by
l.,?a nva S. #%A,,, v,2s as its V-,oA-nm ii f kAxaz...kn 1?dMk eJ &cirt-oftoix-.
WITNESS my hand and official seal, this the day of 2000.
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
/ 117000 Page I i N<'\V R(' A?ii?m?M IINAI ''; d-
1
ASSISTANT SECRETARY CERTIFICATE
I, Sue C. HarringtonAssistant Secretary of Duke Power, a Division of Duke
Energy Corporation, do hereby certify that the following is a true and correct excerpt of a
Resolution adopted September 22, 1997, by the Management Committee of the Board of
Directors of Duke Energy Corporation, and that said quoted Resolution has not been rescinded or
amended:
FURTHER RESOLVED, That Curtis Davis the Senior Vice-President of
the Power Generation Division, be and hereby is authorized, to execute any
contract, lease, deed or other instrument relating to real property without further
action or approval by the Board of Directors of this Committee when deemed by
said Senior Vice-President to be necessary or desirable in the operation of the
Company's business, subject, however, to a monetary limit of $1,500,000.00
consideration or value in any single transaction, and to execute such documents
in any such transaction which is approved by a resolution of this Committee.
FURTHER RESOLVED, That the Secretary or any Assistant Secretary
be and hereby is authorized to attest and affix the Corporate seal to any
contracts, leases, deeds or other instruments executed under authority of this
resolution and may execute any certificate that may be required to certify the
incumbency and authority of the officer or manager executing such documents.
I further certify that on March 30 , 2000, Curtis Davis was the Senior
Vice-President, Power Generation Division, and by reason of holding said position and
pursuant to the above quoted Management Committee's Resolution, had full authority to
represent and act on behalf of Duke Energy Corporation with respect to the execution of
an Agreement between Duke Power, a Division of Duke Energy Corporation and the
North Carolina Wildlife Resources Commission for lands located in the Counties of
Alexander, Burke, Caldwell, Catawba, Forsyth, Gaston, Iredell, Lincoln, McDowell,
Mecklenburg and Stokes, North Carolina and to execute on behalf of Duke Power, a
Division of Duke Energy Corporation all documents and instruments relating in any way
thereto.
WITNESS my hand and official seal of said Company this 30th day of March
2000.
Assistant Secretary
3/ 1112000 P.wc 14 WWRC Avjeenwnl FINAI?-23 J,u

EXHIBIT A
NORTH CAROLINA PUBLIC ACCESS AREAS
NCWRC HAS MAINTENANCE AND ENFORCEMENT ROLE
LAKE JAMES ACRES
LINVILLE 180.28
BRIDGEWATER FISHING AREA 39.81
BLACK BEAR 163.84
LAKE RHODHISS
CASTLE BRIDGE
47.68
CONLEY CREEK 67.91
JOHNS RIVER 1.8
HUFFMAN BRIDGE 2.32
RHODHISS 126.93
LAKE HICKORY
GUNPOWDER 13.32
LOVELADY 44.1
WITTENBURG 13.09
DUSTY RIDGE (1) 78.96
OXFORD 52.88
NOTES:
(1) Leased by Dusty Ridge Rec. Park Inc.
LOOKOUT SHOALS LAKE
LOOKOUT 30.28
SHARON 8.79
ACRES
MARSHALL FISHING AREA 2
LONG ISLAND 28.81
PINNACLE 9.36
MCCRARY CREEK 21.24
STUMPY CREEK (2) 83.6
HAGER CREEK 28.25
LITTLE CREEK 7.94
BEATTY'S FORD 23.66
MCGUIRE FISHING AREA 2
ISLAND POINT (undeveloped) 12828
SLANTING BR9IDGE (undeveloped) 12.59
BUFFALO SHOALS (undeveloped) 10.76
NOTES:
(2) Leased by Iredell County
REV: 2 Page 1
3/3/00

EXHIBIT A
NORTH CAROLINA PUBLIC ACCESS AREAS
NCWRC HAS MAINTENANCE AND ENFORCEMENT ROLE
MOUNTAIN ISLAND LAKE
NECK ROAD 6.1
RIVERBEND 24.41
MOUNTAIN ISLAND TAILRACE 38.15
LAKE WYL IF
ALLEN FISHING AREA
20.98
SOUTH POINT 70
BELEWS LAKE
PINE HALL
67.9
PINEY BLUFF 93.1
REV: 2 Page 2 3/3/00
u
r +
3
' Fk% s/
qp?,
DRAFT `'f%R 2o0?
iTySF, -.
GTjCj1V
STATE OF NORTH CAROLINA) NORTH CAROLINA PUBLIC ACCESS AREA
LEASE AGREEMENT WITH
COUNTY OF LINCOLN ) LINCOLN COUNTY
BEATTY'S FORD ACCESS AREA
Lake Norman, FERC Project Number 2232
THIS LEASE, made and entered into as of the _ day of , 2004, by and between DUKE
ENERGY CORPORATION, a North Carolina Corporation, (hereinafter referred to as "Lessor"), and
LINCOLN COUNTY, a public subdivision of the State of North Carolina, (hereinafter referred to as
"Lessee");
WITNESSETH:
WHEREAS, Lessor has been licensed by the Federal Energy Regulatory Commission ("FERC") to
operate the Catawba-Wateree Hydroelectric Project (FERC NO. 2232) ("Project"), which impounds the waters
of the Catawba River, including Lake James, Lake Rhodhiss, Lake Hickory, Lookout Shoals Lake, Lake
Norman, Mountain Island Lake and Lake Wylie in North Carolina and which Project is subject to regulatory
oversight by the FERC; and,
WHEREAS, Lessee desires to lease a portion of said Project on Lake Norman at the Beatty's Ford
Access Area for the purpose of constructing and maintaining a public park and/or public recreational area as
shown on attached map Exhibit A, Beatty's Ford Access Area, parcel 59148, 66118, located outside the Project
Boundary, and as detailed on Exhibit B, Conceptual Site Plan; and,
1 April 29, 2004
Lincoln County/Beatty's Ford Public Access
e
DRAFT
WHEREAS, Lessor desires to accommodate Lessee's construction and maintenance of a public park
and/or public recreational area provided that such use does not interfere with Lessor's ability to operate and
maintain the Project in accordance with its operating license, other FERC requirements, and its business
operations; and,
WHEREAS, Article 39 of the FERC license for the Project grants Lessor as the licensee of the Project_
the authority to grant permission for certain types of use and occupancy of Project lands and waters and to
convey certain interests in Project lands and waters for certain types of use and occupancy as long as the
proposed use and occupancy is consistent with the purposes of protecting and enhancing the scenic,
recreational, and environmental values of the Project;
NOW, THEREFORE, the Lessor, for and in consideration of the covenants and agreement hereinafter
expressed to be kept and performed by Lessee, hereby leases to Lessee and Lessee hereby leases from Lessor,
subject to the exceptions and reservations and upon the terms and conditions and for the purposes in this
instrument set out, the 23.59 acres of property located in Lincoln County, North Carolina, shown on the map
attached hereto as Exhibit A and incorporated herein by reference (herein referred to as "Leased Premises").
1) Term: This Lease shall begin on the day of , 2004, and shall terminate on
If Lessor and Lessee agree, this Lease shall continue in effect after the termination date on
a year to year basis or upon such other terms as agreed upon by both parties, but Lessor shall not be obligated to
renew. Lessor may terminate this Lease at any time if directed to do so by the FERC or its successor agency
having jurisdiction over hydroelectric reservoirs that are subject to the Federal Power Act. Lessor may also
terminate this Lease pursuant to Paragraph 33, 34, and 37 herein.
2) Warranties: In order to induce Lessor to enter into this Lease, Lessee warrants and represents
that it has authority to enter into this Lease under or by
Lessor
represents that it has full and lawful authority to enter into this Lease for lands dedicated to public use by terms
of Lessor's license for its Catawba-Wateree Hydroelectric Project issued by the FERC pursuant to the Federal
Power Act.
2 April 29, 2004
Lincoln County/Beatty's Ford Public Access
DRAFT
a) Disclaimer of Warranties of Condition: Lessee accepts the Leased Premises "AS IS." Lessor
makes no warranties or representations as to the conditions of the Leased Premises or any improvements
thereon, whether open and obvious or concealed. Lessor makes no representation or warranty, express
or implied, and will bear no responsibility as to the existing or future water quality or quantity in the
Lake Norman or its tributaries or the sufficiency or suitability of the Leased Premises for use as a public
park and or public recreation site.
b) Assignment of Contractor and Vendor Warranties: Lessor agrees to Lessee's rights under all
assignable contractor or vendor warranties relating in any way to any building, fixture or other
improvement located on the Leased Premises, as permitted by the terms and conditions of contractor or
vendor warranties.
3) Rent and/or Other Consideration: The consideration flowing to Lessor for this Lease is the
Lessee's assumption of responsibility for construction, maintenance and operation of future recreation facilities
permitted under the terms of Lessor's FERC license. Failure by Lessee to maintain and operate the permitted
facilities and the areas of the Leased Premises subject to FERC regulatory oversight to the standards reasonably
required by the FERC shall constitute a default under the terms of this lease pursuant to Paragraph 36 herein.
Should the FERC require additional public recreation facilities within the Leased Premises, Lessor and Lessee
shall hold a meeting to discuss the requirement. The procedures set forth in Paragraph 6, Conceptual Site Plan
shall be followed.
4) Permitted Uses: The Leased Premises may be used by Lessee for the development, maintenance
and operation of a public park and/or public recreational area and for no other purpose unless it is a compatible
use, such as the provision of recreation related goods and services, which may be permitted on site when
authorized in advance in writing by Lessor. Any public park and/or public recreation site may include, but is
not limited to, the following types of area development:
a) Public Park or Recreation Areas -
i) Areas that have developed recreational facilities, such as picnic tables, picnic pavilions,
nature centers, swimming beaches, bath houses, restrooms, campgrounds, cabins, park stores,
restaurants, marinas, waste pump out facilities, gas sales (land or water), corporate challenge courses,
3 April 29, 2004
Lincoln County/Beatty's Ford Public Access
DRAFT
maintenance and related structures or facilities that directly support park operations and maintenance,
living quarters for park personnel, and other related facilities or amenities; and
ii) Recreation uses such as picnicking, tent camping, hiking, wildlife viewing, boating,
fishing, swimming, and other related outdoor activities.
b) Access and/or Trail Areas - areas that enable water access via boat launches or piers, or land
access via pedestrian, bike or horse trails.
c) Nature Preserve/Research Areas - areas that provide land for and promote the development
of cooperative partnerships to enable preservation activities, conservation easements and/or research.
5) Public Use of Facilities: Use of any and all public park and/or public recreation area facilities,
including such public service/convenience facilities as restrooms, water faucets, public communications
equipment, trash receptacles, etc., constructed or placed on the Leased Premises by the Lessee will be open to
use by boaters, bank fishing persons and all other public recreation users of the public recreation facilities,
during the times and for the applicable fees stipulated in Exhibit B. Lessee shall allow public boat launching at
the required public boating access areas free of charge, except where fees have been agreed upon with Lessor.
6) Conceptual Site Plan: The Conceptual Site Plan submitted by the Lessee for development of
recreation facilities on the Leased Premises, attached hereto as Exhibit B shall be implemented by Lessee. Any
changes to the Conceptual Site Plan require prior written approval of the Lessor. Additions to or modifications
of any facilities will require the submittal to Lessor of detailed plans, including but not limited to, construction
plans and elevation drawings. Major additions or modifications will typically require review by other entities
and may require FERC approval.
If, as part of this Lease, Lessor approves construction of new facilities, such facilities must be
constructed within the timelines set out in the Conceptual Site Plan. A one (1) year or other appropriate time
extension may be considered if the Lessee files a written request with Lake Management prior to the
construction deadline for any specific facility or facilities, setting forth the reasons why the facility or facilities
will not be completed within the allotted time frame. If an extension of time to complete construction of the
4 April 29, 2004
Lincoln County/Beatty's Ford Public Access
DRAFT
facilities is granted by Lessor, additional requirements may be required of Lessee to meet revised regulations or
shoreline development guidelines.
Should FERC require additional recreation facilities to be located at the Leased Premises, Lessor will
contact Lessee and arrange a meeting to discuss the required additional recreation facilities. At the meeting the
specifics of what facilities must be added, where the facilities can be added, an estimated cost for adding the
facilities, and the timing of adding additional facilities should be determined. Lessor and Lessee will then
evaluate their available resources to determine how and when the required additional recreation facilities will be
constructed, and if those resources will be in dollars, `in kind' services or a combination thereof. A revised
Conceptual Site Plan will be developed based on the results of the meeting. Once Lessor and Lessee are in
agreement with the revised plan, Lessor and Lessee shall enter into a revised lease.
7) User Fees and Hours of Operation: Lessee agrees that Lessor's.employees, third party contractor
employees, local law enforcement officials, local environmental and public health officials, and local
emergency response crews operating in his/her official capacity will be exempt from the user fees. Any
proposed changes in the schedule of fees or hours of operation by the Lessee must be submitted in writing to the
Lessor at least sixty (60) days prior to proposed implementation and must be approved in writing. Contracts or
leases between Lessee and third parties regarding the sale of goods or services on the Leased Premises must be
submitted to Lessor at least sixty (60) days prior to proposed implementation; and must not be executed until
Lessee receives written approval from the Lessor. Lessee agrees that user fees or proceeds it collects from
third party contracts or leases associated with the Leased Premises will be used exclusively to:
a) offset Lessee's costs of operation, maintenance, and capital improvements of the Leased
Premises or other public recreation facilities for which Lessee is responsible that are also within or
adjoining the FERC Project Boundary or within or adjoining a free-flowing section of the Catawba
Wateree Project, or
b) offset Lessee's cost of improving its own public recreation department in specific areas that
benefit public recreation users of the Project or the aforementioned free-flowing section of the Project,
or
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c) meet the requirements stipulated in any Lincoln County ordinances and/or regulations
regarding disposition of monies collected from recreation facilities' fees.
Lessee agrees to submit an Annual Operational Report (Exhibit C) to assist Lessor in its reporting on shoreline
activities and planning efforts to the FERC.
8) Joint Annual Inspection: Lessor and Lessee will perform a joint annual physical inspection of the
Leased Premises each year for the term of this Lease to ensure the Leased Premises are being maintained in a
safe manner and to the maintenance levels mutually acceptable to Lessor and Lessee.
9) Entry by Lessor: Lessor, its agents and representatives, at all reasonable times may enter said
property to examine same, and any such entry by or on behalf of Lessor shall not be or constitute an eviction,
partial eviction or deprivation of any right of Lessee and shall not alter the obligations of the Lessee hereunder
or create any right in Lessee adverse to the interest of the Lessor.
10) Leases of Portions of the Public Access Areas: Lessor has entered into a Public Access Area
Agreement (Agreement) with the North Carolina Wildlife Resources Commission, attached hereto as Exhibit D
for the maintenance of certain portions of established public access areas including the Lease Premises and for
the provision of additional public recreation facilities of such areas. Lessee understands and agrees that Lessee
shall not have exclusive control of the Leased Premises and shall coordinate with the Lessor and the North
Carolina Wildlife Resources Commission for the operation and maintenance of the Leased Premises.
11) Maintenance: Lessee recognizes that it has the continuing responsibility to ensure that the
constructed and placed facilities are maintained in good repair, including, but not limited to, maintenance of
those facilities in the Conceptual Site Plan and proper erosion control within the Leased Premises and along the
shoreline, and agrees to take all reasonable steps necessary to meet this responsibility. Lessee is to maintain all
structures and improvements within the Leased Premises in a sound condition and in neat appearance and pay
all costs for said maintenance. In the event Lessee fails to properly maintain all buildings and improvements or
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Lessee fails to obtain budgetary appropriations for the maintenance of the Leased Premises, then Lessor may
terminate this Lease and retake possession of the Leased Premises, as set forth in Paragraph 33, 34 and 37.
12) Si a e: Lessor will provide to Lessee all information required for signage at the entrance to
boat access ramps or other signage as required by the Lessor's FERC License. Lessee will erect and maintain
all said signs.
13) Improvements: Lessee shall have the right at its own expense to make additions or modifications
to those facilities and improvements existing upon the Leased Premises at the commencement of the lease term.
However, Lessee shall submit to Lessor for Lessor's review detailed plans, including but not limited to
construction plans and elevation drawings of all proposed material alterations or improvements and receive the
written approval of Lessor prior to initiating work on proposed alterations or improvements. Dependent on the
scope and substance of the proposed alterations or improvements, modification of the Conceptual Site Plan may
be required. Additionally, certain substantive changes may require the approval of applicable local, state and
federal agencies prior to submittal of the request to Lessor and in certain situations the Lessor will need to
submit Lessee's application to the FERC for approval, prior to issuance of approval by Lessor.
14) Illegal and Prohibited Uses: Lessee will not make or permit to be made any illegal or prohibited
use of the Leased Premises or any use thereof constituting a public nuisance, and shall keep the Leased
Premises in a neat and orderly manner and shall comply with all applicable building codes and health
regulations and with the rules and regulations of any and all applicable governmental authorities. All water and
sanitary sewer facilities shall -be designed, installed, constructed, maintained and operated only with the
approval of the applicable governmental authority. Prohibited uses under the terms of the Lease include but are
not limited to the following:
a) Sale of alcoholic beverages or drugs;
b) Gambling (e.g. installation of video gaming machines that pay off);
c) Creation or installation of firearm or shooting ranges;
d) Charging excessive fees; and
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e) Establishing predetermined user groups that use specific facilities (for example, only slip
owners may use the restroom facilities).
15) Fire Protection: In the event of a fire within or threatening to the lands or facilities of any park
or recreation area which is a part of this Lease, Lessee agrees to assist Lessor with the protection of the park or
recreation area against such fire.
16) Approval by FERC: This Lease is subject to the written approval of the FERC, provided,
however if FERC declines to approve this instrument, then and in that event, it shall become void and of no
legal force and effect whatsoever.
17) Portions of Leased Premises Subject to FERC Oversight: As to those portions of the Leased
Premises designated as Public Access Areas under the terms of Lessor's license for the Project and being shown
and designated "FERC Project Area" on Exhibit A, Lessee agrees its use of the Leased Premises will comply
with FERC Order No. 313 and all regulations or directives issued by the FERC. Lessee's use of the aforesaid
lands will not endanger health or safety, create a nuisance or otherwise be incompatible with the overall
recreational use of the Catawba-Wateree Hydroelectric Project, FERC Project No. 2232. Failure by Lessee to
maintain and operate the FERC required facilities and areas of the Leased Premises to the standards reasonably
required by the FERC shall constitute a default under the terms of this lease pursuant to Paragraph 36.
18) Compliance with State, Federal and Local Laws: Lessee agrees that its use of the Leased
Premises as herein provided will be consistent with all FERC orders and regulations regarding recreational
opportunities and development at licensed projects, and all other applicable state, federal and local laws as well
as all ordinances, rules, regulations and sanctions of any regulatory body or governmental agency (state, federal
or local) having jurisdiction in the Leased Premises, and Lessee's use of the Leased Premises will comply with
all applicable Duke Shoreline Management Guidelines and the Shoreline Management Plan and will not
endanger health or safety, create a nuisance or otherwise be incompatible with the overall recreation use of the
Project. Upon request by Lessor, Lessee shall re-enter the Leased Premises at any time after the termination or
expiration of this Lease and perform such operations necessary for compliance with then applicable law,
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ordinances or regulations at the termination date. Lessee shall be relieved of any responsibility for compliance
under this Paragraph 18 if during the Lease term Lessor causes noncompliance by changing conditions upon the
Leased Premises, including but not limited to, land use pattern, or causing or allowing any third party to do so.
19) Protection of Environment: All necessary precautions shall be taken during construction and
subsequent operation and maintenance of the facilities to protect and enhance the scenic, environmental,
recreational and cultural values of any affected lands and waters of the Project.
20) Archaeological Resources: If any archaeological resources are discovered during construction or
maintenance activities, such activities shall be halted and the State Historic Preservation Officer shall be
contacted to determine what measures, if any, are needed to protect or salvage the resources and the Lessor shall
be notified. Written notice shall be given to Lessor and all other appropriate agencies of any such discovery and
the measures being implemented, if any are required.
21) Watercraft: Any watercraft more than twenty (20) feet in length or more than ten (10) feet in
width moored within the Leased Premises must have affixed thereto a certification label indicating that same
was manufactured in compliance with the Federal Boat Safety Act of 1971. Excepted from this requirement are
watercrafts in safe condition manufactured prior to the effective date of the Federal Boat Safety Act of 1971.
22) Sanitation: A commercially manufactured pump out system must be installed if the Lessee shall
allow any one of the following: 1) the sale of boat fuel within the project boundary; 2) the total number of boat
docking locations is greater than or equal to sixty-five (65); or 3) the Lessee allows the mooring of twenty-five
(25) or more watercraft with marine Sanitation Devices (MSD's) with a fixed holding tank. The Lessee may be
exempted from this requirement if Lessee provides written documentation from a state or local agency having
jurisdiction regarding waste disposal that the facility cannot be permitted to dispose of waste collected from
watercraft to the satisfaction of applicable regulations. Lessee shall maintain sanitation facilities as a regular
and customary service for pump and or deposits of waste.
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23) Utility Easement: Lessor for itself, successors and assigns, reserves an easement to build,
construct, maintain and operate electric distribution/transmission lines on, over, along and above the Leased
Premises. Lessor also reserves the right, privilege and easement to erect, construct, reconstruct, replace,
maintain and use towers, poles, wires, crossarms and other appliances and fixtures for the purpose of
transmitting or distributing electric power, for Lessor's communication purposes, and for any other purpose that
is, in Lessor's sole discretion, consistent with its business operations, together with the right to kep said lines,
appliances, and fixtures free of structures, trees and other objects that may endanger or interfere with same.
Lessor will notify and consult with the Lessee as to the plans for the construction of any buildings or structures
to be placed within the Leased Premises, necessary to conduct Lessor's business.
24) Reservation of Use: The right to use the Leased Premises for project purposes (not inconsistent
with the activities and purposes of this Lease) is hereby reserved to the Lessor, its successors and assigns.
25) Reservation of Authority: No terms or conditions herein contained shall be construed as limiting
or affecting in any way the authority of Lessor in connection with its exercise of proper protection and
administration of the Public Access Areas or its FERC license.
26) Response to Increase in Recreation Use: Lessor will in good faith, for the included lakes
aforementioned in the Project, endeavor to accommodate future increases in public recreation use of the lakes
by arranging for the designation of lands for recreation use that are or may become available for such purposes
and when such land areas are consistent with the Shoreline Management Plan and/or the operation of Lessor's
business.
27) FERC License Conflicts: This Lease is subject to the terms and conditions of the license issued
by the FERC for the Project. In the event of any conflict between the terms and conditions of this Lease and the
terms of the license, it is agreed that the terms of the license shall prevail.
28) Transfer or Assignment: The Lessee may not transfer or assign this Lease or let or sublet the
whole or any part of the Leased Premises to anyone without the prior written consent of the Lessor.
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29) Taxes and Assessments: Lessee shall be responsible for all ad valorem property taxes (real or
personal) or payments in lieu thereof as may be due during the lease term on the Leased Premises and for any
buildings or improvements thereon including the personal property of Lessee.
30) Insurance by Lessee: Lessee agrees that, at its own cost and expense, it shall obtain and maintain
in force during the term of this Lease one or more policies of general public liability insurance from the State
Insurance Reserve Fund, or where applicable and authorized, from a reputable insurance company authorized to
do business in North Carolina, providing coverage for any and all risks of liability associated with Lessee's
occupancy and use of the Leased Premises and the activities authorized hereunder, to the full extent and limit of
Lessee's liability, as now or hereinafter provided for by law, and provide satisfactory evidence thereof to
Lessor.
If insurance is not obtained by Lessee or Lessee's insurance is cancelled, Lessor may then obtain general
liability insurance against any and all claims for injuries to persons or damage to property occurring on the
Leased Premises, during the balance of the term of this Lease, in the amounts hereafter provided, whereupon
Lessee shall reimburse Lessor annually within forty-five (45) days following Lessor's presentation to Lessee of
copy of invoice showing Lessor's premium for the current year. However, Lessee shall not be required to
reimburse Lessor for insurance beyond Two Million Dollars ($2,000,000.00) (single limit) as to personal injury
or death and shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00) (single limit) as to property
damage, such amounts being thereafter adjusted at 5-year intervals, the first adjustment on January the First of
the Fifth Year following the initial acquisition of such insurance in proportion to the percentage increase or
decrease in the Consumer Price Index, All Urban Consumers, U.S., All Items (1982-84 = 100), published by the
United States Department of Labor, Bureau of Labor Statistics, according to the following formula:
Current CPI X Insurance Levels = Adjusted Insurance Levels
Base CPI
The Base CPI used shall be the monthly index for the month of September, 1991. The current CPI shall be
estimated as the monthly index for the month of September immediately preceding the date an insurance level
adjustment goes into effect. If the CPI herein above set forth is discontinued and no similar index is substituted
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therefore, in that event the most nearly comparable index issued by the United States Government or any
agency thereof with respect to consumer prices shall be used hereunder.
31) Hazard Insurance: Lessee shall also, at all times during the term of this Lease, keep all
improvements which are now or hereafter a part of the Leased Premises insured against loss or damage by fire
and the extended coverage hazards for one hundred percent (100%) of the full replacement value of such
improvements. Any loss adjustment shall require the written consent of both Lessor and Lessee. In the event
any improvements upon the Leased Premises shall be damaged or destroyed by fire or other casualty, then
Lessee shall promptly restore same to the condition existing before such loss or damage.
32) Hazardous Materials: The following items are to be implemented by the Lessee for the Leased
Premises:
a) Lessee shall not bring to or handle, store, dispense, transport or locate on or about the Leased
Premises any chemical substances, asbestos, oil, gasoline, other petroleum products, formaldehyde,
PCBs, or any toxic, carcinogenic, radioactive or hazardous wastes, materials, substances or
contaminants (known collectively "Hazardous Materials"), without Lessor's prior written
authorization.
b) While handling, transporting or storing any Hazardous Materials on or about the Leased
Premises, Lessee shall act in full compliance with all applicable federal, state and local laws,
ordinances and regulations.
c) Lessee shall give Lessor immediate written notice of any problem, spill, discharge or
threatened discharge of or relating to Hazardous Materials on or about the Leased Premises, and of any
private or governmental investigation relating to Hazardous Materials on or about the Leased
Premises. Lessor shall have the right to participate in and approve any environmental assessment or
environmental clean-up plan for the Leased Premises. Lessee, its employees, agents and contractors,
shall fully cooperate with any and all federal, state and local governmental officials having jurisdiction
over the Leased Premises in resolving any environmental problem.
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d) Lessee's failure to comply strictly with the provisions and mandates of this Paragraph 32
shall constitute a breach of this lease, entitling Lessor to terminate this lease and to exercise any other
rights and remedies available to Lessor hereunder or otherwise.
33) Termination: It is expressly agreed and understood that the violation of any of the covenants,
conditions, terms or provisions of this Lease by Lessee shall terminate this Lease at the option of the Lessor.
Failure of Lessor to exercise any of said rights relating to the termination of this lease or any other rights of
Lessor under this Lease shall not be construed as a waiver or abandonment of the right thereafter to exercise any
or all of same. In the event that the Lessor terminates this Lease under any of the above written conditions, the
Lessor may enter the Leased Premises and expel the Lessee there from; or the Lessor may, in lieu thereof or in
conjunction therewith, pursue any other lawful right or remedy incident to the relationships created by this
Lease. Lessor must give sixty (60) days' notice in writing to Lessee of its intent to terminate, except that only
thirty (30) days' written notice shall be required for termination for nonpayment of rent or taxes. Lessee shall
have the right to cure any violation during said sixty-day (or thirty-day, as the case may be) notice period, in
which event Lessor may not terminate this Lease.
Upon the termination or expiration of the Lease, all buildings, improvements, fixtures and other items of
real property shall become the property of the Lessor. Lessor, however, shall reimburse Lessee for its
contribution to this Lease and its actual cost in all capital improvements, based on a life expectancy and
depreciation schedule agreed to by Lessor and Lessee once the capital improvement total cost has been
determined and a depreciation schedule has been developed and before the facilities have been installed on site.
At the option of Lessor, Lessee shall remove all personal property of Lessee located upon the Leased Premises.
If Lessee shall not have removed its personal property within thirty (30) days of the termination or expiration of
the Lease as directed by Lessor, Lessor may at its option retain and use any portion of same or remove and
dispose of any portion of same without liability to Lessor and shall be reimbursed by Lessee for its cost thereof.
34) Termination for Lack of Funding: Notwithstanding any other provision of this Lease, it is
understood and agreed by and between the parties that in the event that Lessee is unable to obtain funding by
appropriation or otherwise to operate and maintain the recreational facilities herein provided beyond the end of
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any then current State fiscal year (June 30`h) and so notifies Lessor thereof within sixty (60) days of the final
approval of Lessee's appropriations for that coming fiscal year, this Lease shall be considered canceled. Such
cancellation shall cause the Lease to terminate as if that was the date originally affixed herein for the expiration
of the term hereof and shall not constitute an "event of default". Notwithstanding such cancellation, Lessee
shall be liable for and shall pay to Lessor all indebtedness accrued hereunder to the date of such cancellation.
Lessee agrees to utilize its best efforts throughout the term o? this Lease to obtain adequate appropriations or
other funding to accomplish the purposes of this Lease.
35) Surrender of Lease: The voluntary or other surrender of this Lease by Lessee, or a mutual
cancellation thereof, shall not work a merger and shall, at the option of Lessor, terminate all or any existing
subleases or sub tenancies, or may at the option of Lessor, operate as an assignment to it of any or all such
subleases or sub tenancies.
36) Event of Default:
a) The following events ("Events of Default") shall be deemed to be events of default by Lessee
under this Lease:
i) If Lessee shall fail to pay any sum of money payable hereunder on the date the same is
due and such failure shall continue for a period of sixty (60) days after due written notice thereof to
Lessor; or
ii) If Lessee fails to comply with any term, provision or covenant of this Lease other than
the payment of any sum of money, and shall not cure such failure within sixty (60) days after due
written notice thereof to Lessee; provided, however, if Lessor, in its sole discretion, determines that
such failure cannot be cured within sixty (60) days, Lessee shall be in default under this lease if Lessee
fails to commence to cure such failure within the same sixty (60) day period or thereafter fails to act to
diligently and promptly cure such failure; or
iii) If Lessee voluntarily discontinues or voluntarily ceases to use the Leased Premises and
the Improvements for the permitted use or closes its operations on the Leased Premises for any period
greater than ninety (90) days; or
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iv) If Lessee falls behind schedule on the construction of facilities approved as part of the
Facilities Plan and fails to notify Lessor and follow the requirements as set out in this Lease; or
v) Any other event of default as specifically addressed in the paragraphs contained herein.
b) Upon the occurrence of an Event of Default hereunder, Lessor shall be entitled to pursue any
one or more of the following remedies without notice or demand:
i) Terminate this Lease and Lessee's right of possession of the Leased Premises in which
event Lessee shall immediately surrender the Leased Premises to Lessor, and if Lessee fails to do so,
Lessor may, without prejudice to or any other remedy which it may have for such Event of Default,
enter upon and take possession of the Leased Premises, and expel or remove Lessee and any other
person or entity who may be occupying the Leased Premises or any part thereof, by force, if necessary,
without being liable for prosecution or any claim for damages therefore;
ii) Without having terminated this Lease, terminate Lessee's right of possession of the
Leased Premises, by force, if necessary, without being liable for prosecution of any claim for damages
therefore, and perform Lessee's obligations under this Lease, and Lessee shall reimburse Lessor upon
demand for any expenses which Lessor may incur in effecting compliance with the terms of the lease
and Lessor shall not be liable for any damages resulting to Lessee from such actions;
iii) Bring suit for the collection of any amounts for which Lessee is then in default, or for the
performance of any other covenant or lease by which Lessee is bound, with or without entering into
possession or terminating this Lease.
c) In the event Lessor elects to terminate this Lease by reason of the occurrence of an Event of
Default, this Lease shall terminate and come to an end as if that were the date originally fixed herein
for the expiration of the Term hereof. Notwithstanding such termination, Lessee shall be liable for and
shall pay to Lessor all indebtedness accrued hereunder to the date of such termination.
d) In case of any Event of Default or breach by Lessee, Lessee shall also be liable for the costs
of removing and storing Lessee's or any other occupant's personal property; and all expenses incurred
by Lessor in enforcing or defending Lessor's rights and/or remedies, including reasonable attorney's
fees.
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37) Condemnation: If the whole or any part of the Leased Premises is taken or condemned by any
competent authority for any public use or purpose, then this Lease shall automatically terminate as to the
portion taken as of the date said title shall be taken. If a portion of the Leased Premises shall be taken so as to
render the remainder thereof unusable for the purposes for which the Premises were leased, then this Lease shall
terminate as of the date said title shall be taken. In the event that any portion of the Leased Premises shall be
taken or this Lease shall be terminated as a result of a taking of the whole or a portion of the Leased Premises,
Lessee shall have no claim against Lessor for the value of any unexpired portion of the lease term. Lessor shall
be entitled to the entire award given, including any special damages, except that, as to any portion of payment
received by way of just compensation which is attributable to the value, if any, of any capital improvements,
taken or damaged, Lessee shall be entitled to receive a pro-rata share thereof based on the percentage that its
funding contribution therein bears to the total capital costs thereof. In the event that either party should disagree
with the valuation given within any award to any improvements taken or damaged, or be unable to agree
between themselves as to such value, the parties agree to arbitrate such question of valuation and to apportion
their award so as to separately set forth the contributing value, if any, of each improvement taken or damaged.
38) Severability: The provisions hereof are independent covenants and should any provision or
provisions contained in this lease be declared by a court or other tribunal of competent jurisdiction to be void,
unenforceable or illegal, then such provision or provisions shall be severable and the remaining provisions
hereof shall remain at Lessor's option in full force and effect.
39) Indemnity: Lessee, to the extent allowed by applicable North Carolina law, specifically as may
be authorized by the General Statutes of North Carolina, Article 31, Chapter 143-291, entitled "Tort Claims
Against State Departments and Agencies", covenants to indemnify and save harmless Lessor from and against
any and all claims, liability, loss or damage, arising from any conduct, work or thing done under the terms of
this Lease, to include injury or damage to any person or persons, including Lessor, or to the property of any
person, or persons or corporations occurring on or within the Leased Premises which are the subject of this
Lease, as the result of any activity of Lessee, its agents, employees, or any other person or entity under the
direction of the Lessee, and for any protection, mitigation and enhancement measures or activities required by
FERC or its successor agency in connection with the activities conducted by Lessee hereunder. Upon Lincoln
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County contracting with an entity for the purpose of constructing any facilities on the Leased Premises, Duke
Energy Corporation shall be named as an insured or an additional insured on a policy of insurance covering the
scope of such activity prior to the commencement of any activity by Lincoln county, its agents or contractors.
Any contractor or subcontractor performing work on property that is the subject of this Lease shall have in place
prior to commencement of any activity and during the performance of any activity, the following types of
insurance and coverage limits:
General Liability Coverage - Two million dollars per occurrence.
Automobile Liability- One million dollars per occurrence.
Workers Compensation - Within statutory limits.
Employer's Liability - Five hundred thousand dollars each accident.
Contractor's Pollution Liability Coverage - One million dollars per occurrence.
40) Limitation of Liability: Lessor and Lessee agree to warrant that any and all work performed
within the Leased Premises will be performed with professional thoroughness and using acceptable standard
business practices. Lessor's total cumulative liability to Lessee for claims of any kind whether based on
contract, tort (including strict liability and negligence except for gross negligence or willful misconduct on part
of Lessor), under any warranty or otherwise, for any loss or damage relating to this Lease, shall in no case
exceed the cost of completing the work in accordance with acceptable business practice, and Lessee releases
Lessor from all further liability in excess of this amount for any work performed under this Lease. Lessee
further releases Lessor from any and all liability resulting from any injury of any employee of Lessee or anyone
performing any service at the direction of the Lessee on the Leased Premises, excluding any acts of willful
misconduct of the Lessor.
Neither party shall be liable, whether based on contract, tort (including negligence and strict liability),
under any services or work performed relating to this Lease, for any consequential, indirect, special, or
incidental loss or damage, any damage (except to the extent damage resulted from willful misconduct) to or loss
of any property or equipment.
This limitation of, or protection against liability shall also protect directors, officers, employees, agents,
consultants, suppliers, subcontractors, and affiliated entities and their directors, officers, employees, agents,
consultants, suppliers, subcontractors, parents, subsidiaries and affiliates of the Lessor and shall apply
regardless of the fault (excluding willful misconduct), gross negligence or strict liability of the respective party.
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Lessee waives and will require its insurers to waive all rights to recovery and claims of any kind,
including rights and claims to which its insurers or another may be subrogated, against Lessor arising out of
damage to, loss of or loss of use of any Lessee's property, located on Beatty's Ford Public Access Area,
whether based on contract, tort (including strict liability and negligence except for gross negligence or willful
misconduct on part of Lessor), under any warranty or otherwise. These waivers are effective as to all damages
to or losses of use of property arising out of or relating to this Lease or deficiencies in the services provided
hereunder and Lessee hereby covenants that no such action or claim shall be brought by or through Lessee on
any theory whatsoever. In the event Lessee or its insurers recover damages from a third party for losses or
damages to which the foregoing waivers apply, Lessee shall indemnify and hold Lessor harmless against any
liability for any such losses or damages which said third party recovers from Lessee and any expenses
(including attorney fees and other cost of investigation and defense) related hereto.
The limitation of liability in this provision shall apply notwithstanding any other provision of this Lease.
41) Flooding: Lessor reserves the unlimited right to back or flood the waters of the Lake Norman and
its tributaries from time to time and at any and all times over and upon the Leased Premises or any portion of
the same, to such extent the flooding may be necessary or convenient in connection with the practical operation
of its hydroelectric power plants located or to be located in the future upon the Lake Norman. Lessee agrees that
any damage it may suffer as a result of such flooding shall not be claimed or charged against Lessor. Lessee
hereby waives all claims against Lessor for damages resulting from floods that may occur on the Catawba River
or any tributary thereof.
42) FERC Project . Restoration: Lessor shall be under no obligation to Lessee to maintain or
continue to operate the Project and should said Project be damaged, destroyed or removed, the Lessor shall be
under no obligation to restore or rebuild same, and Lessee hereby waives all claims against Lessor for damages
to or destruction or removal of the Project.
43) Parties Bound: The covenants and conditions herein contained shall, subject to the provisions as
to assignment, transfer and subletting, apply to and bind the heirs, successors, executors, administrators and
assigns of all the parties hereto; provided, however, that neither this lease nor any provisions therein may be
assigned by Lessee except with the prior written consent of the Lessor.
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44) Survival: Provisions of this Lease for Termination (Paragraph 33), Indemnity (Paragraph 39)
and Survival (Paragraph 44) shall survive the termination or cancellation of this Lease and shall remain in
effect.
45) Recovery of Fees and Costs: If any action is taken by Lessor to enforce any provision, covenant
or agreement contained in this Lease or if Lessor is required to retain an attorney to enforce any provision,
covenant or agreement contained in this Lease (including, without limitation, the payment of rent due hereunder
or the removal of an encroachment constructed on the Leased Premises in violation of the Lease), then Lessor
shall be entitled to recover from Lessee all Lessor's reasonable attorneys' fees and court costs incurred in such
action and/or enforcement.
46) Notices: Wherever in the Lease it shall be required or permitted that notice be given by either
party to this lease to the other, such notices must be in writing and must be given personally or forwarded by
certified mail addressed as follows:
To Lessor: Duke Energy Corporation
Lake Management, EC 12Q
P.O. Box 1006
Charlotte, NC 28201-1006
To Lessee: Lincoln County
Such addresses may be changed from time to time by notice given hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed this the day and
year first above written.
[Signatures Begin on Following Page]
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LESSOR
Duke Energy Corporation
By:
Name: George W. Christian, Jr.
Title: Manager, Real Estate Operations
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
1, , a Notary Public for said County and State, certify
that George W. Christian, Jr. personally came before me this day and acknowledged that he is Manager, Real
Estate Operations of Duke Energy Corporation, a North Carolina corporation, and that he, as Manager, Real
Estate Operations, being authorized to do so, executed the foregoing on behalf of the corporation.
WITNESS my hand and official seal this day of , 2004.
[NOTARIAL SEAL]
My Commission Expires:
Notary Public
[Signatures Continue on the Following Page]
20 April 29, 2004
Lincoln CountyBeatty's Ford Public Access
DRAFT
LESSEE
STATE OF NORTH CAROLINA
COUNTY OF
Lincoln County
By: _
Name:
Title:
a Notary Public for said County and State, certify
that personally came before me this day and acknowledged that
he/she is of Lincoln County and that by authority duly given and as the act of the County,
the foregoing instrument was signed in its name by its
Witness my hand and official seal, this _ day of , 2004.
My Commission Expires:
Notary Public
21 April 29, 2004
Lincoln County/Beatty's Ford Public Access
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