20090133 Ver 3_Corps of Engineer Correspondence_20151228

Regulatory Division/1200A
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
December 23, 2015
SUBJECT: Action ID: SAW -2006-32645
AVH BETHPAGE, LLC
Attn: Mr. Bill Kiselick
8601 N Scottsdale Road, Ste 225
Scottsdale, AZ 85253
ALFC PAGE ROAD, LLC
Attn: Mr. Scott Lay
8480 Honeycutt Road, Ste 200
Raleigh, NC 27615
Tri Properties, Inc.
Attn: Mr. Greg Sanchez
4309 Emperor Boulevard, Ste 110
Durham, NC 27703
Dear Mr. Kiselick, Mr. Lay and Mr. Sanchez:
Reference the Department of the Army permit issued to ALFC-Page Road, LLC and
Tri- Properties, Inc. on February 18, 2010, as modified on August 11, 2014 and December 23,
2014, to authorize the discharge of fill material into waters of the United States, for construction
of the Bethpage mixed-use community development. The project site is 408 acres in the
northwest quadrant of the intersection of Page Road and Chin Page Road, on unnamed tributaries
to Stirrup Iron Creek, southeast of Durham, in Durham County, North Carolina. Also, please
reference your November 4, 2015, letter requesting after -the -fact modification of the permit for an
unauthorized riparian wetland impact of 0.09 acre (Wetland Area B), in lieu of 0.11 acre of
authorized impacts (Wetland Area A), as well as amendment of the Conservation Declaration and
Preservation Area Map.
We have reviewed the requested modification, and determined that it is appropriate and
reasonable, and that no public notice is required for this modification. Therefore, the permit is
hereby modified to amend the impacts for after -the -fact authorization of 0.09 acre of riparian
wetland impact (Wetland Area B), in lieu of 0.11 acre of authorized impacts (Wetland Area A),
as shown on the attached Figure 6, and Insets I & 2, "BETHPAGE, OVERALL IMPACT MAP,
dated 11-04-2015, and to add the following Special Conditions to replace the Special Conditions
in Section 1), Subsection 2) and Section in):

2
Section 1) Subsection 2) By preservation of a minimum of 0.85 acre of on-site wetlands, as
described in "BethPage, OVERALL SITE PLAN, Exhibit A — Preservation Area Map"
and the working copy "Amended Conservation Declaration" submitted by e-mail on
December 7, 2015.
Section in) Permittee shall execute and cause to be recorded in the Durham County
Register of Deeds the Conservation Declaration, the form of which was transmitted to
USACE in a December 7, 2015, email from Mr. Kevin Yates of EcoEngineering
(authorized agent), which shall preserve in perpetuity the 2.35 acres of wetlands, 8,251
linear feet of stream channel, on the maps attached to the December 7, 2015, email. A
copy of the Amended Conservation Declaration to be recorded and the associated maps
are attached to this modification as Exhibit B. The permittee shall enforce the terms of the
Amended Conservation Declaration and shall take no action on the property described in
the declaration inconsistent with the terms thereof. The permittee will provide the Corps a
recorded copy of the Amended Conservation Declaration within 90 days from issue date
of this permit. The Corps understands that the recording of the maps for each subdivision
phase, associated with the Amended Conservation Declaration, will be completed on a
phased approach. The permittee shall provide to the Corps a copy of each recorded map,
showing the exact locations of preservation areas, within 30 days of the recording date.
All other conditions of the previously modified permit, including the remaining mitigation
requirements and the permit expiration date of December 31, 2019, remain applicable.
Should you have any questions, please call Mr. Eric Alsmeyer at [phone], Ext. 23.
Sincerely,
Kevin P. Landers Sr.
Colonel, U.S. Army
District Commander
Copies Furnished (with attachments):
Mr. Kevin Yates
The McAdams Company
2905 Meridian Parkway
Durham, NC 27713
Ms. Karen Higgins, Supervisor
401 & Buffer Permitting Unit - Division of Water Resources
North Carolina Department of Environmental Quality
1617 Mail Service Center
Raleigh, NC 27699-1617

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STATE OF NORTH CAROLINA
DURHAM COUNTY
AMENDED CONSERVATION DECLARATION
This AMENDED DECLARATION of CONSERVATION COVENANTS,
CONDITIONS, and RESTRICTIONS ("Conservation Declaration") is made on this day
of , 201_, by AVH BETHPAGE, LLC and ALFC- PAGE ROAD,
LLC.("Declarant").
RECITALS & CONSERVATION PURPOSES
A. The Conservation Declaration executed on 17 June 2010, identified as Instrument No.
2010018290, and recorded in Deed Book 6500, Page 993 of the Durham County Registry was
filed as a condition of Department of the Army permit Action ID 2006-32645 issued by the
Wilmington District Corps of Engineers (Corps).
B. Beth Page Acquisition Partners, LLC, was removed from Exhibit A and the
Amendment as an owner, because Beth Page Acquisition Partners, LLC, no longer owns any
portion of the "Area To Be Dedicated Preservation Easement".
C. AVH BETHPAGE, LLC acquired a portion of the property commonly known as
Bethpage, from ALFC- PAGE ROAD, LLC on March 12, 2015. ALFC-PAGE ROAD, LLC
provided notice to the U.S. Army Corps of Engineers on February 19, 2015 and July 10, 2015 of
the transfer of portion(s) of the property commonly known as Bethpage, and the partial
assignment of the above referenced Department of the Army Permit, as it relates to the
transferred property.
D. Declarant is the sole owner in fee simple of the certain Conservation Property
(Property), which is a portion of the property (PIN 0748-03-94-7127) which is depicted in those
certain deeds recorded. in the following Deed Books of the Durham County Registry,
incorporated herein by reference: Deed Book 005204, Page 000352, Plat Book 000180, Plat Page
000382, and more particularly described in "Exhibit A- Preservation Area Map" attached hereto
and by this reference incorporated herein. The Property consists of the following wetland and/or
riparian resources:
(1) 35.26 acres identified on Exhibit A as "Area To Be Dedicated For
Preservation";
(2) 2.35 acres or riparian wetlands identified on Exhibit A as "Remaining
Wetlands In Preservation"; and
(3) 8,251 linear feet of intermittent Stream Channel and 5,547 linear feet of
perennial stream channel identified on Exhibit A as "Remaining Stream In Preservation".

E. The purpose of this Amended Conservation Declaration is to remove a small portion
within "Area To Be Dedicated For Preservation" that was not intended as such.
F. The Amended Conservation Declaration will maintain wetland and/or riparian
resources and other natural values of the Property, and prevent the use or development of the
Property for any purpose or in any manner that would conflict with the maintenance of the
Property in its natural condition, or in its remediated condition in the case of on-site stream
restoration mitigation. The preservation of the Property in its natural or remediated condition is a
condition of Department of the Army pen -nit Action ID 2006-32645 issued by the Wilmington
District Corps of Engineers (Corps), required to mitigate for unavoidable impacts to water of the
United States authorized by that permit, and this Amended Conservation. Declaration may
therefore be enforced by the United States of America.
NOW, THEREFORE the Declarant hereby unconditionally and irrevocably declares that
the Property shall be held and subject to the following restrictions) covenants and conditions as
set out herein, to run with the subject real property and be binding on all parties that have or shall
have any right, title, or interest in said property.
ARTICLE I. PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purposes of this Amended
Conservation Declaration is prohibited. The Property shall be maintained in its natural or
remediated, scenic, and open condition and restricted from any development or use that would
impair or interfere with the conservation purposes of this Conservation Declaration set forth
above.
Without limiting the generality of the foregoing, the following activities and uses are
expressly prohibited or restricted.
A. Disturbance of Natural Features. Any change disturbance, alteration or impairment of
the natural or remediated features of the Property or any introduction of non-native plants and/or
animal species is prohibited. This prohibition does not include remedial work that must be done
to maintain on-site stream restoration mitigation and/or future stormwater outfall structures that
remains subject to this Conservation Declaration.
B. Construction. There shall be no constructing or placing of any building, mobile home,
asphalt or concrete pavement, billboard or other advertising display, antenna, utility pole, tower,
conduit, line, pier, landing, dock or any other temporary or pennanent structure or facility on or
above the Property.
C. Industrial. Commercial and Residential Use. Industrial, residential and/or commercial
activities, including any right of passage for such purposes are prohibited.
D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal husbandry,
and horticultural use of the Property are prohibited.

E. Vegetation. There shall be no removal, burning, destruction, harming, cutting or
mowing of trees, shrubs, or other vegetation on the Property.
F. Roads and Trails. There shall be no construction of roads, trails or walkways on the
property.
G. Signage. No signs shall be permitted on or over the Property, except the posting of no
trespassing signs, signs identifying the conservation values of the Property, signs giving
directions or proscribing rules and regulations for the use of the Property and/or signs identifying
the Grantor as owner of the property.
H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste,
abandoned vehicles, appliances, machinery or hazardous substances, or toxic or hazardous waste,
or any placement of underground or aboveground storage tanks or other materials on the
Property is prohibited.
1. Excavation, Dredging or Mineral Use. There shall be no grading, filling, excavation,
dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other
materials, and no change in the topography of the land in any manner on the property, except to
restore natural or remediated topography or drainage patterns.
J. Water Quality and Drainage Pattern. There shall be no diking, draining, dredging,
channeling, filling, leveling, pumping, impounding or related activities, or altering or tampering
with water control structures or devices, or disruption or alteration of the restored, enhanced, or
created drainage patterns. In addition, diverting or causing or permitting the diversion of surface
or underground water into, within or out of the Property by any means, removal of wetlands,
polluting or discharging into waters, springs, seeps, or wetlands, or use of pesticide or biocides is
prohibited.
K. Development Rights. No development rights that have been encumbered or
extinguished by this Conservation Declaration shall be transferred pursuant to a transferable
development rights scheme or cluster development arrangement or otherwise.
L. Vehicles. The operation or mechanized vehicles, including, but not limited to,
motorcycles, dirt bikes, all -terrain vehicles, cars and trucks is prohibited.
M. Other Prohibitions. Any other use of, or activity on, the Property which is or may
become inconsistent with the purposes of this grant, the preservation of the Property substantially
in its natural condition, or the protectl on of its environmental systems, is prohibited.
ARTICLE 11. ENFORCEMENT & REMEDIES
A. This Amended Declaration is intended to ensure continued compliance with the
mitigation condition of authorizations issued by the United States of America, U.S. Army Corps
of Engineers, Wilmington District, and therefore may be enforced by the United States of

America. This covenant is to run with the land and shall be binding on all parties and all persons
claiming under the Declarant.
B. Corps, its employees and agents and its successors and assigns, have the right, with
reasonable notice, to enter the Properly at reasonable times for the purpose of inspecting the
Property to detennine whether the Declarant, Declarant's representatives, or assigns are
complying with the terms, conditions and restrictions of the Conservation Declaration.
C. Nothing contained in this Amended Conservation Declaration shall be construed to
entitle Corps to bring any action against Declarant for any injury or change in the Conservation
Properly caused by third parties resulting from causes beyond the Declarant's control, including,
without limitation, fire, flood, storm, and earth movement, or from any prudent action taken in
good faith by the Declarant under emergency conditions to prevent, abate, or mitigate significant
injury to life, damage to Property or harm to the Property resulting from such cases.
ARTICLE III. PUBLIC ACCESS
A. This Amended Conservation Declaration does not convey to the public the right to
enter the Property for any purpose whatsoever.
ARTICLE IV. DOCUMENTATION AND TITLE
A. Conservation Property Condition. The Declarant represents and acknowledges that the
Property is currently undeveloped land, with no improvements other than any existing utility
lines, Declarations and rights of way.
B. Title. The Declarant covenants and represents that the Declarant is the sole owner and
is seized of the Property in fee simple and has good right to make the herein Declaration; that
there is legal access to the Property, that the Property is free and clear of any and all
encumbrances, except Declarations of record.
ARTICLE V. MISCELLANEOUS
A. Conservation Purpose. Declarant, for itself, its successors and assigns, agrees that his
Conservation Property shall be held exclusively for conservation purposes.
B. Entire Avreement. This instrument sets forth the entire agreement of the parties with
respect to the Amended Conservation Declaration and supersedes all prior discussions,
negotiations, understandings or agreements relating to the Amended Conservation Declaration. If
any provision is found to be invalid, the remainder of the provisions of this Amended
Conservation Declaration, and the application of such provision to persons or circumstances
other than those as to which it is found to be invalid, shall not be affected thereby.
C. Recording. Declarant shall record this instrument and any amendment hereto in timely
fashion in the official records of Durham County, North Carolina, and may re-record it at any
time as may be required to preserve its rights.

D. Environmental Condition of Conservation Property. The Declarant warrants and
represents that to the best of its knowledge after appropriate inquiry and investigation: (a) the
Property described herein is and at all times hereafter will continue to be in full compliance with
all federal, state and local environmental laws and regulations, and (b) as of the date hereof there
are no hazardous materials, substances, wastes, or environmentally regulated substances
(including, without limitation, any materials containing asbestos) located on, in, or under the
Property or used in connection therewith, and that there is no environmental condition existing
on the Property that may prohibit or impede use of the Property for the purposes set forth in the
Recitals.
IN WITNESS WHEREOF, Declarant has hereunto set his hand and seal, the day and year
first above written.
ALFC-Page Road, LLC
State of
County of
On this _ day of , 201_ before me undersigned
officer, personally appeared known personally to me to be the Member -
Manager of the above named Limited Liability Company, and acknowledged the execution
thereof for the uses and purposes herein set forth.
IN WITNESS WHEROF I have hereunto set my hand and official seal.
Notary Public
My Commission Expires

AVH BETHPAGE, LLC
State of
County of
On this day of _, 201 before me undersigned
officer, personally appeared known personally to me to be the Member -
Manager of the above named Limited Liability Company, and acknowledged the execution
thereof for the uses and purposes herein set forth.
IN WITNESS WHEROF I have hereunto set my hand and official seal.
Notary Public
My Commission Expires

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