SWA000173_Lease Agreement_20221121

Prepared By: Parker Poe Adams & Bernstein LLP (LBP)
Mail To: Duke Energy
Data & Document Management
526 South Church Street (ECII-05)
Charlotte, NC 28202
STATE OF NORTH CAROLINA
COUNTIES OF CHATHAM AND RANDOLPH
Property No.: 1200286
Land Unit: 2807556
Proj ect No.: 1200286-8607467
TEMPORARY EASEMENT AGREEMENT
(Substation Lot)
THIS TEMPORARY EASEMENT AGREEMENT (the "Easement Agreement") is granted
this day of November, 2022, by TIM'S FARM & FORESTRY, LLC, a North Carolina limited
liability company, having a mailing address of c/o Tim Booras, 4319 Waterleaf Court, Greensboro, NC
27410 ("Grantor"), to DUKE ENERGY PROGRESS, LLC, a North Carolina limited liability company,
having a mailing address of Data & Document Management, 526 S. Church St. (ECII-05), Charlotte, North
Carolina 28202 ("DEP").
WITNESSETH:
That Grantor, in consideration of Ten Dollars ($10.00) and other valuable considerations paid by
DEP, the receipt and legal sufficiency of which is hereby acknowledged, does grant and convey unto DEP,
its successors and assigns, the temporary easements and rights of way set forth herein, for the purposes and
subject to the terms and conditions set forth herein, over and across the land of Grantor (the "Premises")
lying in the State and Counties aforesaid and being more particularly described in the instruments recorded
in Book 1547, Page 865 and Book 1729, Page 1027, Chatham County Registry, and in Book 2214, Page
2119 in the Randolph County Registry (the Premises consists of the approximately 863.22-acre parcel
bearing Chatham County Tax Parcel Identification No. 12580, and the approximately 6.75-acre parcel
bearing Randolph County Tax Parcel Identification No. 8732778621).
1. Temporary, Exclusive Easements: Grantor grants to DEP, for itself and its successors and
assigns, the following easements:
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(a) A temporary, non-exclusive easement and right of way ("Substation Lot
Easement") to enter and construct, reconstruct, replace, rebuild, enlarge, modify, remove, inspect and
maintain electrical facilities and ancillary improvements, including without limitation, an electrical
substation ("Substation") within the area of land labeled "Alternate Substation Easement" on the map
attached to this Easement Agreement as Exhibit A ("Substation Lot Easement Area"). In connection
with the exercise of its rights under this Section 1(a), DEP shall have the right, at its sole cost, to construct,
maintain and use a temporary gravel access drive ("Temporary Drive") in the location labeled "Duke
Energy 30' Access Easement (Typ.)" on the map attached to this Easement Agreement as Exhibit A. The
portion of the Premises affected by the Temporary Drive shall be included in the definition of Substation
Lot Easement Area.
(b) A temporary, non-exclusive easement and right of way ("Distribution
Easement") over and across the Premises to construct, reconstruct, operate, patrol, maintain, inspect, repair,
replace, relocate, add to, modify and remove electric and/or communication facilities thereon, including but
not limited to, supporting structures such as poles, cables, wires, guy wires, anchors, and other appurtenant
apparatus and equipment (the "Facilities") within the area of land that is twenty five (25) feet on either side
of the center line of Facilities installed within the area labeled "Duke Energy Distribution Easement (Typ.)"
on the map attached to this Easement Agreement as Exhibit A ("Distribution Easement Area"), for the
purpose of transmitting and distributing electrical energy and for communication purposes. For purposes
of this Easement Agreement, the Substation Lot Easement and Distribution Easement are collectively the
"Easements", and the Substation Lot Easement Area and Distribution Easement Area are collectively the
"Easement Areas". Notwithstanding anything to the contrary above, the general location of the Substation
and Facilities is shown on the map attached hereto as Exhibit A and incorporated herein by reference. The
final and definitive location of the Easement Areas shall become established by and upon the final
installation and erection of the Substation and Facilities by DEP in substantial compliance with Exhibit A.
DEP will provide to Grantor a copy of DEP's final pre -construction drawings for the Substation and
Facilities within five (5) business days of completion of such drawings.
(c) The Substation Lot Easement and the Distribution Easement shall automatically
terminate on the date that is three (3) years after the date of this Easement Agreement ("Term"); provided,
however, that DEP shall have the option to extend the Term on a month -to -month basis by written notice
to Grantor delivered at least five (5) business days prior to the expiration of the Term (or then -current
extended Term, if applicable). DEP agrees to pay to Grantor an extension fee of $3,333.33 ("Extension
Fee") for each monthly extension, which Extension Fee shall be payable in advance of the expiration of the
Term (or then -current extended Term, if applicable).
2. DEP's Use of Premises Outside of the Easement Areas. Grantor further grants to DEP, its
successors and assigns, the right to enter upon the Premises outside of the Easement Areas for the following
purposes and uses:
(a) to trim, cut and remove, now or at any time in the future, any and all trees, limbs,
undergrowth, structures or other obstructions that may, in DEP's opinion, fall on or otherwise endanger a
line or other facility or structure within the Easement Areas ("Danger Trees");
(b) to gain access to the Easement Areas and Danger Trees at any time and from time
to time by vehicles, equipment, and pedestrians, provided that DEP's use of the Premises outside of the
Easement Areas shall be confined to then -existing streets, roads, and driveways to the extent they provide
sufficient access to the Easement Areas and/or Danger Trees by vehicles, equipment, and pedestrians. If
then -existing streets, roads, and driveways do not provide sufficient access, then DEP shall be entitled to
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use a reasonably convenient and feasible access route or routes over the Premises to access the Easement
Areas and/or Danger Trees and shall be entitled to construct and maintain a roadway or driveway in such
area of the Premises as is approved by Grantor in its reasonable discretion for such purposes;
(c) to install guy wires and anchors extending beyond the limits of the Easement
Areas; and
(d) all other rights and privileges reasonably necessary (as determined by DEP in its
sole discretion) for DEP's safe, reliable and efficient installation, operation, and maintenance of the
Substation and Facilities and for the enjoyment and use of the Easement Areas for the purposes described
herein.
3. DEP's Repair Obligation. DEP shall repair damage to the Premises, including roads,
driveways, and fences, resulting directly from DEP's exercise of its rights granted herein. Provided,
however, for purposes of the initial clearing of all trees which DEP is entitled to cut from the Premises
pursuant this Easement Agreement, said trees shall, upon such cutting, become the property of DEP.
Nothing in this Easement Agreement shall impose upon DEP any duty to repair or warn of any condition
or any type of injury or damage to the Premises existing prior to the date of this Easement Agreement nor
shall DEP have any duty to repair or warn of any condition or any type of injury or damage upon the
Premises caused by the Grantor, any third party, any Act of God, or any natural process, including, without
limitation, erosion or conditions caused by vegetation.
4. DEP's Maintenance Obligations. DEP shall maintain the Easement Areas, at DEP's sole
cost and expense, in the manner required for DEP's use of the Easement Areas, as determined by DEP in
DEP's sole discretion, and not to any other standard. DEP shall be responsible for obtaining (or causing to
be obtained) and maintaining in good standing, at DEP's cost, all permits and approvals required for DEP's
construction, reconstruction, maintenance, repair and use of the Easement Areas from governmental
agencies having jurisdiction and shall comply (and shall cause and DEP's representatives to comply) with
the terms and conditions of any such permits and approvals at all times. DEP and DEP's representatives
shall take all reasonable precautions not to cause a violation of applicable environmental law during any
entry onto the Easement Areas and not to cause regulated toxic or hazardous materials, chemicals, oil, or
petroleum products to be placed, stored, released, spilled, or discharged on or under the Easement Areas or
the Premises in violation of applicable federal, North Carolina and local laws, ordinances, codes, statutes,
regulations and requirements of governmental agencies having jurisdiction ("Applicable Laws"). Any
person performing any work within the Easement Areas or within the Premises shall carry and maintain (a)
Worker's Compensation Insurance in accordance with North Carolina statutory requirements, and (b) a
policy of commercial general liability insurance insuring DEP (naming DEP as an additional insured) and
Grantor against liability for accidents on the Easement Areas or Premises with limits of coverage not less
than $1,000,000.00 per occurrence and $2,000,000.00 aggregate for property damage and bodily injury and
sufficient in all respects to provide and ensure the performance of DEP's indemnity obligations under this
Easement Agreement. DEP shall provide Grantor with certificate(s) of insurance evidencing DEP's
compliance with these insurance requirements within five (5) business days of Grantor's request.
Notwithstanding anything to the contrary in this Easement Agreement, DEP may satisfy its insurance
obligations under this Easement Agreement by means of self-insurance.
5. Liens. If any mechanics' liens, materialmen's liens, or other lien, is asserted against the
Easement Areas or the Premises as a result of DEP's maintenance, repair, access, or use of the Easement
Areas or the Premises, or any other activities conducted by, under, or through DEP or DEP's
representatives, DEP shall, within thirty (30) days of the filing of such lien, either satisfy, defend, or obtain
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the release of such lien, all at DEP's expense, or provide a bond removing any such lien. DEP shall,
indemnify, defend and hold harmless Grantor from any claims, losses, damages, and/or liabilities arising
out of or connected with any such lien.
6. Grantor's Title. DEP acknowledges that no representations or warranties, express or
implied, have been made to DEP by Grantor with respect to the title and condition of the Easement Areas
or their suitability for any particular purpose. Grantor's conveyance of the Easements is subject to any
encumbrances of record, including but not limited to, road, railroad, utility, rights of way, and easements.
Grantor hereby agrees that no improvements shall be constructed, erected or maintained on the Premises so
as to block off the free flow of pedestrian and vehicular traffic to the Easement Areas, except temporarily
for purposes of maintenance and repair, as long as the Easements granted by this Easement Agreement are
in full force and effect.
7. Compliance with Applicable Law. With regard to DEP's and its agents', employees',
representatives', contractors', invitees' entry onto the Premises and DEP's and its agents', employees',
representatives', contractors', invitees' use of the Easements, DEP shall, and DEP shall cause its agents,
employees, representatives, contractors and invitees to comply fully at all times with all Applicable Laws
pertaining to the exercise of rights granted under this Easement Agreement.
8. Indemnity. DEP hereby agrees to indemnify and hold harmless Grantor from and against
any and all liens, encumbrances, liability, costs, demands, claims, judgments, and/or damage (collectively,
"Losses") incurred by Grantor including, without limitation, as a result of any injuries to persons or damage
to the Premises or any other property of Grantor, to the extent caused by or arising out of (1) the use of the
Premises by DEP or its agents, employees, representatives, contractors and invitees; or (11) any breach of
this Easement Agreement by DEP; provided, however, the foregoing shall not apply to, and DEP does not
agree to indemnify Grantor for, Losses caused by or arising out of the negligence or willful misconduct of
the Grantor or Grantor's managers, members, agents, employees, representatives, contractors or invitees.
The terms and conditions of this provision shall survive the expiration or termination of this Easement
Agreement for a period equal to the statute of limitations of the underlying claim, after which, except with
respect to any claim hereunder initiated within such period, any such indemnification shall be of no further
force and effect. Notwithstanding the foregoing, in no event shall either party be liable for any lost profits,
punitive, special, indirect and/or consequential damages.
9. Running with the Land. All covenants and provisions of this Easement Agreement shall be
deemed to run with the land and shall run with and burden the Premises as stated herein. All covenants and
provisions of this Easement Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, successors -in -title, assigns and legal representatives.
10. Governing Law. This Easement Agreement is to be governed, construed and enforced in
accordance with the laws of the State of North Carolina.
11. Waiver. The failure of DEP to exercise or continue to exercise any of the rights herein
granted shall not be construed as a waiver or abandonment of the right thereafter at any time or from time
to time to exercise any and all of such rights.
12. Merger. This Easement Agreement contains the sole and entire agreement of DEP and
Grantor with respect to the matters contemplated hereunder, and no representation, inducement, promise or
agreement, oral or written between DEP and Grantor and not incorporated herein shall be of any force or
effect. Any amendment to this Easement Agreement shall be in writing and executed by DEP and Grantor.
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13. Severability. If any term, covenant or condition of this Easement Agreement, or any
application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, such
provision, or the application of such term, covenant or condition, to persons or circumstances other than
those as to which it is held invalid of unenforceable, shall be deemed severable, and the remainder thereof
shall not be affected thereby, and each term, covenant or condition of this Easement Agreement shall be
valid, and may be enforced to the fullest extent permitted by law.
TO HAVE AND TO HOLD the aforesaid rights, privileges and Easements unto DEP, its
successors and assigns forever.
And Grantor, for the Grantor and for the Grantor's successors and assigns, covenants to and with
DEP, its successors and assigns, that Grantor is lawfully seized of the above described Premises in fee and
has the right to convey the said rights and Easements, that the same is free and clear from any and all
encumbrances, and that Grantor will forever warrant and defend the title to the said rights and Easements
against the lawful claims of all persons whomsoever.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Easement Agreement is executed on the date first above written.
GRANTOR:
TIM'S FARM & FORESTRY, LLC,
a North Carolina limited liability company
By: _
Name:
Title:
STATE OF
COUNTY OF
(place of acknowledgment)
I, , a Notary Public of County, State of
do hereby certify that ("Signatory"),
of TIM'S FARM & FORESTRY, LLC, a North Carolina limited
liability company, personally appeared before me this day and by authority duly given, acknowledged the
due execution of the foregoing instrument on behalf of the limited liability company.
I certify that (check one of the following and mark through all blank lines or spaces):
(I have personal knowledge of the identity of Signatory); or
(I have seen satisfactory evidence of Signatory's identity, by a current state or federal
identification with Signatory's photograph in the form of:
(check one of the following and mark through the blank line)
a driver's license or
in the form of ); or
(a credible witness has sworn to the identity of Signatory).
Signatory acknowledged to me that he/she voluntarily signed the foregoing instrument for the
purpose stated and in the capacity indicated.
Witness my hand and official stamp or seal this day of 12022.
Notary Public
Print Name:
[Note: Notary Public must sign exactly as on notary seal.]
My Commission Expires:
[NOTARY SEAL] (MUST BE FULLY LEGIBLE)
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DEP:
Duke Energy Progress, LLC,
a North Carolina limited liability company
Martha S. Purser
Manager, Land Services
STATE OF _
COUNTY OF
I, , a Notary Public for County,
State of , do hereby certify that Martha S. Purser ("Signatory"), personally appeared
before me this day and acknowledged that she is Manager, Land Services of Duke Energy Progress, LLC,
a North Carolina limited liability company, and that she, as Manager, Land Services in such capacity and
being authorized to do so, executed the foregoing instrument on behalf of the limited liability company.
I certify that the Signatory personally appeared before me this day, and
(check one of the following)
(I have personal knowledge of the identity of the Signatory); or
(I have seen satisfactory evidence of the Signatory's identity, by a current state or federal
identification with the Signatory's photograph in the form of:
(check one of the following)
a driver's license or
in the form of ); or
(a credible witness has sworn to the identity of the Signatory).
The Signatory acknowledged to me that she voluntarily signed the foregoing document for the
purpose stated therein and in the capacity indicated.
Witness my hand and official stamp or seal this day of November, 2022.
Notary Public
Print Name:
[Note: Notary Public must sign exactly as on notary seal]
My Commission Expires:
� [NOTARY SEAL] (MUST BE FULLY LEGIBLE)
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EXHIBIT A
MAP OF EASEMENT AREAS
(THE MAPS BELOW ARE NOT SURVEYS. LOCATIONS SHOWN ON MAP ARE
APPROXIMATE. THE ACTUAL CENTERLINE LOCATION OF THE UTILITY LINE IS THE
CENTERLINE OF THE EASEMENT).
[See Attached]
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