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Doc ID: 030170980039 Type: CRP
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Buncombe County, NC
Drew Reisinger Register of Deeds
BK5411 PG1936-1974
NON-STANDARD
FILING
Property Owner: Enka Partners of Asheville, LLC
Recorded in Book 45%� Page I_�
Associated plat recorded in Plat Book I , Page 5b
NOTICE OF BROWNFIELDS PROPERTY
This documentary componenVf a Notice of Brownfields Property ('Notice"), as well as the plat
component, have been filed this — day of 201(o by Enka Partners of Asheville,
LLC ("Prospective Developer").
This Notice concerns contaminated property..
A copy of this Notice certified by the North Carolina Department of Environmental Quality
("DEQ") is required to be filed in the Register of Deeds' Office in the county or counties in which the land
is located, pursuant to North Carolina General Statutes ("NCGS"), § 130A-310.35(b).
This Notice is required by NCGS § 130A-310.35(a), in order to reduce or eliminate the danger to
public health or the environment posed by environmental contamination at a property ( "Brownfields
Property") being addressed under the Brownfields Property Reuse Act of 1997, NCGS § 130A, Article 9,
Part 5 ( "Act").
Pursuant to NCGS § 130A-310.35(b), the Prospective Developer must file a certified copy of this
Notice within 15 days of Prospective Developer's receipt of DEQ's approval of the Notice or Prospective
Developer's entry into the Brownfields Agreement required by the Act, whichever is later. Pursuant to
NCGS § 130A-310.35(c), the copy of the Notice certified by DEQ must be recorded in the grantor index
under the names of the owners of the land and, if Prospective Developer is not the owner, also under the
Prospective Developer's name.
The Brownfields Property is located at Sand Hill Road, Asheville, Buncombe County, North Carolina,
which in total comprised approximately 228.4 acres. The subject 41.08 acres lies on the east side of the former
plant property, and functioned as the corporations landfill. Enka Partners of Ash&lle, LLC intends to reuse the
property for recreational purposes, concessions, public restroom facilities, open space, greenways, parking, and
associated driveways.
The Brownfields Agreement between Prospective Developer and DEQ is attached hereto as Exhibit
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A. It sets forth the use that may be made of the Brownfields Property and the measures to be taken to
protect public health and the environment, and is required by NCGS § 130A-310.32. The Brownfields
Agreement's Exhibit 2 consists of one or more data tables reflecting the concentrations of and other
information regarding the Property's regulated substances and contaminants.
Attached as Exhibit B to this Notice is a reduction, to 8 1/2" x 11 ", of the survey plat component
of this Notice. This plat shows areas designated by DEQ, has been prepared and certified by a professional
land surveyor, meets the requirements of NCGS § 47-30, and complies with NCGS § 130A-310.35(a)'s
requirement that the Notice identify:
(1) The location and dimensions of the areas of potential environmental concern with respect to
permanently surveyed benchmarks.
(2) The type, location and quantity of regulated substances and contaminants known to exist on the
Brownfields Property.
Attached hereto as Exhibit C is a legal description of the Brownfields Property that would be sufficient
as a description of the property in an instrument of conveyance.
LAND USE RESTRICTIONS
NCGS § 130A-310.35(a) also requires that the Notice identify any restrictions on the current and future
use of the Brownfields Property that are necessary or useful to maintain the level of protection appropriate for the
designated current or future use of the Brownfields Property and that are designated in the Brownfields
Agreement. The restrictions shall remain in force in perpetuity unless canceled by the Secretary of DEQ
(or its successor in function), or his/her designee, after the hazards have been eliminated, pursuant to
NCGS § 130A-310.35(e). All references to DEQ shall be understood to include any successor in function.
The restrictions are hereby imposed on the Brownfields Property, and are as follows:
1. No use may be made of the Property other than for outdoor recreation, concessions,
public restroom facilities, open space, greenways, parking, and associated driveways. For purposes of
this restriction, the following definitions apply:
a. "Outdoor Recreation" refers to tennis courts, ball fields, ball courts, and similar
uses which are not enclosed in buildings and are operated on a commercial or membership basis.
b. "Concessions" refers to the sale of food prepared on site and vending type
materials, already prepared and ready for sale to the consumer.
c. "Public restroom facilities" refers to the provision of an enclosed public restroom
with hand washing services.
d. "Open space" refers to land used for recreation, natural resource protection,
amenities, and/or buffers. An area of land or water which is open and unobstructed, including areas
maintained in a natural or undisturbed character or areas improved for active or passive recreation.
e. "Greenways" refers to a linear open space along a natural or constructed
corridor, which may be used for pedestrian or bicycle passage. Greenways often link areas of activity,
such as parks, cultural features, or historic sites with each other and with populated areas.
f. "Parking and associated driveways" refers to an area designed and designated for
temporary accommodation for motor vehicles whether for a fee or as a service. And areas that are
predominantly used for vehicular transportation, these areas may also contain pedestrian walkway,
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utility easements, railroad crossings, and/or on -street parking areas.
2. No physical redevelopment of the Property may occur unless and until DEQ's Solid
Waste Section and Brownfields Program conclude in writing that the proposed redevelopment will not
negatively affect the cover, structural integrity and monitoring systems at the closed landfill facility.
3. No physical redevelopment of the Property may occur unless and until DEQ's Solid
Waste Section and Brownfields Program review a plan for redevelopment (Redevelopment Plan) that will
address:
a. public safety for all aspects of the redevelopment;
b. maintenance of the landfill cover, structural integrity and monitoring systems;
c. the plan shall include a minimum of 2 feet of clean fill for any waste containing
area of the landfill and the maintenance there of,
d. assessment and management of methane and landfill gases;
e. soil and groundwater management during the redevelopment phase;
f. the plan shall be certified by a licensed Professional Engineer in North Carolina;
and;
g. within 90 days after the conclusion of physical redevelopment, the then owner of
the Property shall provide DEQ a report, subject to written DEQ approval, on environment -related
activities conducted pursuant to the Redevelopment Plan, which report shall include a summary and
drawings and describe how the physical redevelopment was accomplished in accordance with the
Redevelopment Plan. DEQ agrees to review the Redevelopment Plan and to provide comments or
questions to the Project Developer within 45 days of receipt of the Redevelopment Plan.
4. Within 30 days following recordation of the Notice referenced below in paragraph 21,
the then owner of the Property shall submit to DEQ a written plan for monitoring surface water at the
Property through sampling and analysis. The plan shall not be considered satisfactory unless and until
DEQ states as much in writing.
a. The plan shall require:
i. designation of four (4) surface water locations to be sampled pursuant to
the plan;
ii. sampling of the designated surface water locations for volatile organic
compounds and metals at least once each year during the same thirty -day period;
iii. analysis of the samples by the most current version of U.S.
Environmental Protection Agency Method 8260, 200.7, 200.8, 245.1, and 300.0;
iv. provision of the sampling analyses to DEQ in writing within 30 days after
sampling;
b. When the plan requires sampling, analysis, and reporting, the then owner of the
affected portion(s) of the Property shall be responsible for compliance. The plan shall be available from
DEQ and may be amended with DEQ's prior written approval. The required monitoring shall continue
until sampling pursuant to the plan shows the concentrations of any and all metals present in excess of
the standards set forth in the most current version of Title 15A of the North Carolina Administrative
Code, Subchapter 02B, (January 1, 2015 version), are stable, declining or undetected for a minimum of
three (3) consecutive years; and
c. Should the analytical results of the surface water sampling indicate a DEQ
calculated risk above 1 x 101, the then owner of the property shall submit a plan to DEQ for written
approval to:
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i. Notify the public via signs or other approved methods indicating a risk
associated with the surface water body, with language approved by DEQ; and
H. Implement means to restrict access to the impacted surface water body.
5. The owner of the Property shall, at its own expense, correct any impacts to the landfill,
as determined by DEQ, that increase the cost of compliance or ability to comply with rules and
regulations for environmental protection, or adversely affect environmental permits regarding the
landfill that are caused by development on the landfill. Said corrections must be made with prior DEQ
approval to the written satisfaction of DEQ's Brownfields Program and Solid Waste Section.
6. No building(s), lighting, or other development that poses risks of exposure or ignition of
methane or landfill gases may be constructed on the Property until methane/landfill gas mitigation
measures and/or a methane monitoring system are designed for such building(s), lighting, or other
development by a professional engineer licensed in North Carolina. Should such methane/landfill gas
mitigation or monitoring measures be necessary, the measures shall be implemented in accordance with a
plan approved in writing by DEQ in advance. The methane/landfill gas measures shall include
methodology(ies) for demonstrating performance of said measures. Prior to building occupancy, such
mitigation measures and/or monitoring systems shall have been installed or implemented in accordance
with such DEQ-approved plan and to the satisfaction of a professional engineer licensed in North
Carolina, as evidenced by said engineer's seal on a report that includes photographs and a description of
the installation and performance of said measures.
7. Unless approved by DEQ, driveway and parking surfaces shall not be paved with
asphalt, concrete or other impervious materials. To the extent DEQ determines, in order to protect the
public health, that driveways and parking surfaces require venting for methane/landfill gas, such venting
will be implemented and installed. To the extent DEQ determines, in order to protect the public health,
that any other impervious surfaces, including but not limited to building slabs, require venting for
methane/landfill gas, such venting shall be implemented. The design plans for driving and parking
surfaces and for any impervious surface covering shall require prior written DEQ approval. The
Property may not be used as a recreational complex until DEQ has approved a report submitted by
Prospective Developer on post -construction methane/landfill gas sampling at the sites of driveway and
parking surfaces, and in the vicinity of any impervious surface covering installed at the Property.
S. DEQ and Prospective Developer acknowledge and agree that BASF is currently
sampling groundwater on the Property on a periodic basis. If DEQ determines that BASF and Colbond,
Inc., have discontinued the groundwater monitoring program for the Property, and, after the exercise of
all reasonable efforts, DEQ is unable to compel BASF or Colbond, Inc., to perform such monitoring,
DEQ may require the then current owner of the Property to conduct groundwater monitoring at the
Property. DEQ may require the then current owner of all or any portion of the Property to conduct such
monitoring activities as DEQ's Brownfields Program determines are reasonably necessary to make the
Property suitable for the uses specified in subparagraph La. above while fully protecting public health
and the environment. Such activities, if required by DEQ of the then current owner, shall be conducted
pursuant to a plan submitted to, and approved by, DEQ in advance. The plan shall include, but is not
limited to, sampling methodology, analytes, analytical methods, a schedule for sampling, and criteria for
cessation of monitoring.
9. Only areas designated "Ball Fields" on the plat component of this Notice may be used
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for designed ball fields, and this use may not occur in any such area unless and until:
a. a minimum of 2 feet of clean fill is installed per a plan DEQ's Solid Waste Section
and Brownfields Program approves in writing in advance, including sampling and analysis of the fill to
DEQ's satisfaction;
b. methane and landfill gases are evaluated, managed, and/or mitigated to DEQ's
satisfaction; and
c. DEQ approves in writing a report regarding the plan that is submitted within 30
days thereafter. Any deficiencies noted by DEQ shall be corrected to DEQ's satisfaction within 30 days
of DEQ's notification of said deficiency.
10. No activities that encounter, expose, remove or use groundwater (for example,
installation of water supply wells, fountains, ponds, lakes or swimming pools, or construction or
excavation activities that encounter or expose groundwater) or surface water may occur on the Property
without any prior sampling (and sampling analysis) DEQ deems desirable, and any remediation DEQ
deems desirable based on the analysis, to ensure the Property is suitable for the uses specified in
subparagraph La. above and that public health and the environment are fully protected.
11. None of the contaminants known to be present in the environmental media at the
Property, including those listed in Exhibit 2 hereto, may be used or stored at the Property without the
prior written approval of DEQ, except in de minimis amounts for cleaning and other routine
housekeeping activities.
12. The owner of any portion of the Property where any existing, or subsequently installed,
DEQ-approved monitoring well is damaged shall be responsible for repair of any such wells to DEQ's
written satisfaction and within a time period acceptable to DEQ.
13. Neither DEQ, nor any party conducting environmental assessment or remediation at
the Property at the direction of, or pursuant to a permit, order or agreement issued or entered into by
DEQ, may be denied access to the Property for purposes of conducting such assessment or remediation,
which is to be conducted using reasonable efforts to minimize interference with authorized uses of the
Property.
14. During January of each year after the year in which this Notice is recorded, the owner
of any part of the Property as of January 1s1 of that year shall submit a notarized Land Use Restrictions
Update ("LURU") to DEQ, and to the chief public health and environmental officials of Buncombe
County, certifying that, as of said January 111, the Notice of Brownfields Property containing these land
use restrictions remains recorded at the Buncombe County Register of Deeds office and that the land use
restrictions are being complied with, and stating:
a. the name, mailing address, telephone and facsimile numbers, and contact
person's e-mail address of the owner submitting the LURU if said owner acquired any part of the
Property during the previous calendar year; and
b. the transferee's name, mailing address, telephone and facsimile numbers, and
contact person's e-mail address, if said owner transferred any part of the Property during the previous
calendar year.
c. whether any methane monitoring and/or mitigation systems installed pursuant to
subparagraphs Id., 6., and 9.b., above are performing as designed, and whether the uses of the ground
floors of any buildings containing such monitoring and/or mitigation systems have changed, and, if so, how.
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For purposes of the land use restrictions set forth above, the DEQ point of contact shall be the DEQ official
referenced in paragraph 36.a. of Exhibit A hereto, at the address stated therein.
ENFORCEMENT
The above land use restrictions shall be enforceable without regard to lack of privity of estate or contract,
lack of benefit to particular land, or lack of any property interest in particular land. The land use restrictions shall
be enforced by any owner of the Brownfields Property. The land use restrictions may also be enforced by DEQ
through the remedies provided in NCGS § 130A, Article 1, Part 2 or by means of a civil action; by any unit of
local government having jurisdiction over any part of the Brownfields Property; and by any person eligible for
liability protection under the Brownfields Property Reuse Act who will lose liability protection if the restrictions
are violated. Any attempt to cancel any or all of this Notice without the approval of the Secretary of DEQ (or its
successor in function), or his/her delegate, shall be subject to enforcement by DEQ to the full extent of the law.
Failure by any party required or authorized to enforce any of the above restrictions shall in no event be deemed a
waiver of the right to do so thereafter as to the same violation or as to one occurring prior or subsequent thereto.
FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS
When any portion of the Brownfields Property is sold, leased, conveyed or transferred, pursuant to NCGS
§ 130A-310.35(d) the deed or other instrument of transfer shall contain in the description section, in no smaller
type than that used in the body of the deed or instrument, a statement that the Brownfields Property has been
classified and, if appropriate, cleaned up as a brownfields property under the Brownfields Property Reuse Act.
IN WITN SS WHEREOF, Prospective Developer has caused this instrument to be duly executed this
day of Al.r 2016 .
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Enka Partners of Asheville LLC
By:
Martin Lewis Managing Member
NORTH CAROLINA
&jrnc-c ,}jam COUNTY
I, , a Notary Public of the county and state aforesaid, certify
that Marti n Lc'-j is personally came before me this day and acknowledged that he/she is a
Member of Enka Partners of Asheville, LLC, a North Carolina limited liability company, and its Manager, and
that by authority duly given and as the act of the company, the foregoing Land Use Restriction Update was signed
in its name by him/her-
WITNESS my hand and official stamp or seal, this 31 day of oar c- h 201(�
Name typed or printed: Pie_Aa- LO-
Notary Public
My Commission expires: o3 / o 4 bib I :�'
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NE
APPROVAL AND CERTIFICATION OF NORTH CAROLINA DEPARTMENT OF
ENVIRONMENTAL QUALITY
The foregoing Notice of Brownfields Property is hereby approved and certified.
North Carolina Department of Environmental Quality
By: 'L(.. � ,`
1c ael E. Scott
Acting Director, Division of Waste Management
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Date
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CERTIFICATION OF REGISTER OF DEEDS
The foregoing documentary component of the Notice of Brownfields Property, and the associated plat,
are certified to be duly recorded at the date and time, and in the Books and Pages, shown on the first page hereof.
By:
Register of Deeds for
Name typed or printed:
Deputy/Assistant Register of Deeds
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County
Date
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\O
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: Enka Partners of Asheville, LLC
UNDER THE AUTHORITY OF THE
) BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT
) Former BASF Landfill Site
OF 1997, N.C.G.S. § 130A-310.30, et seq.
} Sand Hill Road
Brownfields Project # 15011-11-11
} Asheville, Buncombe County
I. INTRODUCTION
This Brownfields Agreement ("Agreement") is entered into by the North Carolina
Department of Environmental Quality ("DEQ") and Enka Partners of Asheville, LLC
(collectively the "Parties") pursuant to the Brownfields Property Reuse Act of 1997, N.C.G.S. §
130A-310.30, et SeMc . (the "Act").
Enka Partners of Asheville, LLC is a North Carolina member -managed limited liability
company whose business address is 1091 Hendersonville Road, Asheville, North Carolina
28803, This Agreement pertains to 41.08 acres of the former BASF Corporation landfill
property at Sand Hill Road, Asheville, Buncombe County, North Carolina, which in total
comprised approximately 228.4 acres. The subject 41.08 acres lies on the east side of the former
plant property. A map showing the location of the acreage is attached hereto as Exhibit 1. Enka
Partners of Asheville, LLC intends to reuse the property for recreational purposes, concessions,
public restroom facilities, open space, greenways, parking, and associated driveways.
The Parties agree to undertake all actions required by the terms and conditions of this
Agreement. The purpose of this Agreement is to settle and resolve, subject to reservations and
limitations contained in Section VIII (Certification), Section IX (DEQ's Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
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potential liability of Enka Partners of Asheville, LLC for contaminants at the property which is
the subject of this Agreement.
The Parties agree that Enka Partners of Asheville, LLC's entry into this Agreement, and
the actions undertaken by Enka Partners of Asheville, LLC in accordance with the Agreement,
do not constitute an admission of any liability by Enka Partners of Asheville, LLC
The resolution of this potential liability, in exchange for the benefit Enka Partners of
Asheville, LLC shall provide to DEQ, is in the public interest.
I1. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement which are
defined in the Act or elsewhere in N.C.G.S. 130A, Article 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
1. "Property" shall mean the Brownfields Property which is the subject of this
Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. "Prospective Developer" shall mean Enka Partners of Asheville, LLC.
I1I. STATEMENT OF FACTS
3. The Property comprises 41.08 acres. Prospective Developer has committed itself to
redevelopment for no uses other than those set forth in paragraph 16.a. below.
4. The Property is bordered to the north by property of another parcel owned by the
Prospective Developer, beyond is Hominy Creek and beyond is the Buncombe County Soccer
Complex; to the south by property owned by Prospective Developer being developed into the
distribution center for New Belgium Brewing and other commercial uses; to the east by vacant
wooded property; and to the west by a portion of the former BASF plant owned by Prospective
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Developer also under a Brownfields Agreement with project number 12012-08-11.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the "Environmental Reports," regarding the Property:
Title
Prepared by
Date of Report
Final Preliminary Assessment
NC Department of Human
August 15, 1985
Report
Resources Division of Health
Services
Preliminary Reassessment
NUS Corporation
March 8, 1989
BASF Enka Landfill Post-
ENSR Consulting &
April 9, 2008
Closure Monitoring Pro
Engineering C), Inc.
Brownfield Site Assessment
Altamont Environmental, Inc.
April 27, 2011
Report — Former BASF
Corporation
BASF Enka Site — Closed
CDM Smith
January 2013
Industrial Landfill Facility
Permit No. 11-02 Semi -
Annual Sampling Report
(October 2012 Sampling
Event)
BASF Enka Site — Semi-
ELM Site Solutions, Inc.
May 2014
Annual Groundwater
Monitoring Report
6. For purposes of this Agreement, DEQ relies on the following representations by
Prospective Developer as to use and ownership of the Property:
a. Prior to 1928 the Property was undeveloped; in 1929 American Enka Corp.
opened a facility there that produced rayon yarn.
b, The American Enka Corporation began operating the sanitary landfill in 1929.
c. In 1980, American Enka received a North Carolina Solid Waste Management
permit No. 11-02 as an industrial waste landfill to dispose of manufacturing, construction, and
general wastes.
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H
d. Throughout its history, the facility primarily manufactured continuous filament
yarn, nylon textile yarn and carpet yarn. The types of waste being disposed of in the landfill were
documented as; construction waste, fly ash and bottom ash, water/wastewater treatment sludge,
and depolymerized nylon waste.
e. American Enka sampled the fly ash that was landfilled in January 1984 the
concentrations of chromium were 10 mg/kg and arsenic was 15 mg/kg.
f. BASF Corporation purchased American Enka Corp. in 1985 and continued to
operate the facility until 2001.
g. In 2001 the Property was acquired by Colbond, Inc. (formerly known as
Colbond Acquisition I, Inc.).
h. On March 13, 2006 DEQ issued a Letter of Closure to Colbond, Inc.(current
landowner) and BASF Corporation (Landfill owner/operator) for the BASF Industrial landfill
facility permit No. 11-02.
i. On July 8, 2008, Prospective Developer acquired the Property.
7. On January 14, 2010 DEQ issued a Notice of Violation (ID# IS111001) to Enka
Partners of Asheville, LLC. The Notice identified a non -conforming solid waste disposal site,
the property is also known as the BASF Closed Landfill (permit #11-02).
8. On August 24, 2010 DEQ issued a Closure Notice for (ID# IS 111001), stating the
requirements of the Notice of Violation have been satisfied and the violation has been corrected.
9. Groundwater and surface water at the Property is contaminated with metals above
applicable limits. Data tables reflecting the concentrations of and other information regarding
the Property's regulated substances and contaminants appear in Exhibit 2 to this Agreement.
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1Ik
10. For purposes of this Agreement DEQ relies on Prospective Developer's
representations that Prospective Developer's involvement with the Property has been limited to
obtaining or commissioning the Environmental Reports, preparing and submitting to DEQ a
Brownfields Property Application dated May 22, 2008, and acquiring the Property on July 8,
2008.
11. On October 23, 2015, during the public comment period for this Agreement, DEQ
was made aware of a deed to the subject property which contains restrictive conditions and is
recorded at the Buncombe County Register of Deeds (Book 2644 Pages 427-430). The land
use restrictions contained in this Agreement meet the requirements of the Act. The restrictive
conditions contained in the deed exist independently of this Agreement and are matters between
private parties. This Agreement does not adjudicate or comment on the meaning of the deed's
restrictive conditions. The land use restrictions and conditions herein are necessary for the
prospective developer to obtain the liability protections provided under the Act. All applicable
requirements of the Act must be met for a prospective developer to obtain these liability
protections.
12. Prospective Developer has provided DEQ with information, or sworn certifications
regarding that information on which DEQ relies for purposes of this Agreement, sufficient to
demonstrate that:
a. Prospective Developer and any parent, subsidiary, or other affiliate has
substantially complied with federal and state laws, regulations and rules for protection of the
environment, and with the other agreements and requirements cited at N.C.G.S. § 130A-
310.32(a)(1);
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�r)
b. as a result of the implementation of this Agreement, the Property will be
suitable for the uses specified in the Agreement while fully protecting public health and the
environment;
c. Prospective Developer's reuse of the Property will produce a public benefit
commensurate with the liability protection provided Prospective Developer hereunder;
d. Prospective Developer has or can obtain the financial, managerial and
technical means to fully implement this Agreement and assure the safe use of the Property, and
e. Prospective Developer has complied with all applicable procedural
requirements.
13. Prospective Developer has paid the $2,000 fee to seek a brownfields agreement
required by N.C.G.S. § 130A-310.39(a)(1), and shall make a payment to DEQ of $3,500 at the
time Prospective Developer and DEQ enter into this Agreement, defined for this purpose as
occurring no later than the last day of the public comment period related to this Agreement.
Additionally the Prospective Developer shall pay an initial $2,000 fee for review of the site
Redevelopment Plan which shall include an environmental management component of all media.
A $1,000 fee each time that DEQ reviews a material revision to the Redevelopment Plan
pursuant to subparagraph 17.c., below, that does not involve changes to the Notice of
Brownfields Property or this Agreement; and at least a $2,000 fee each time that DEQ reviews a
material revision to the Redevelopment Plan pursuant to subparagraph 17.c., below that involves
changes to the Notice of Brownfields Property or this Agreement. If actual costs incurred by
DEQ for reviewing revisions to the Redevelopment Plan that involve changes to the Notice of
Brownfields Property or this Agreement exceed the minimum $2,000 fee described in this
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paragraph, Prospective Developer shall pay the minimum fee plus actual costs to DEQ only to
the extent that such costs exceed the minimum $2,000 fee. Other than changes to the
Redevelopment Plan as described above, for any change sought to a Brownfield document after
it is in effect there shall be an additional fee of $1,000 plus actual costs to DEQ only to the extent
that such costs exceed the minimum $1,000 fee. The Parties agree that such fees described
above will suffice as the $5,500 fee to seek a brownfields agreement required by N.C.G.S. §
130A-310.39(a)(1), and, within the meaning of N.C.G.S. § 130A-310.39(a)(2), the full cost to
DEQ and the North Carolina Department of Justice of all activities related to this Agreement.
IV. BENEFIT TO COMMUNITY
14. The redevelopment of the Property proposed herein would provide the following
public benefits:
a. a productive use of the Property;
b. recreational space for the area;
c. a total of approximately 100 jobs constructing and operating the project;
d. "smart growth" through use of land in an already developed area, which avoids
development of land beyond the urban fringe ("greenfields").
e. economic development for the area in that visitors to the proposed sports
complex are projected to utilize approximately 4,000 hotel rooms annually with that number
increasing to approximately 10,000 annually when the complex is fully utilized. Visitors to the
complex are expected to purchase related goods and services. The projected annual economic
impact to the community is $5M.
BP#15011-11-11 Former BASF LF 9-25-2015
V. WORK TO BE PERFORMED
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Page 17 of 39
�1
15. In redeveloping the Property, Prospective Developer shall consider the application of
sustainability principles at the Property, using the six (6) areas 'incorporated into the U.S. Green
Building Council Leadership in Energy and Environmental Design certification program
(Sustainable Sites, Water Efficiency, Energy & Atmosphere, Materials & Resources, Indoor
Environmental Quality and Innovation in Design), or a similar program.
16. Based on the information in the Environmental. Reports, and subject to imposition of
and compliance with the land use restrictions set forth below, and subject to Section IX of this
Agreement (DEQ's Covenant Not to Sue and Reservation of Rights), DEQ is not requiring
Prospective Developer to perform any active remediation at the Property.
IT By way of the Notice of Brownfields Property referenced below in paragraph 22,
Prospective Developer shall impose the following land use restrictions under the Act, running
with the land, to make the Property suitable for the uses specified in this Agreement while fully
protecting public health and the environment. All references to DEQ shall be understood to
include any successor in function.
a. No use may be made of the Property other than for outdoor recreation,
concessions, public restroom facilities, open space, greenways, parking, and associated
driveways. For purposes of this restriction, the following definitions apply:
i. "Outdoor Recreation" refers to tennis courts, ball fields, ball courts, and
similar uses which are not enclosed in buildings and are operated on a commercial or
membership basis.
ii. "Concessions" refers to the sale of food prepared on site and vending
type materials, already prepared and ready for sale to the consumer.
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Page 18 of 39
iii. "Public restroom facilities" refers to the provision of an enclosed
public restroom with hand washing services.
iv. "Open space" refers to land used for recreation, natural resource
protection, amenities, and /or buffers. An area of land or water which is open and unobstructed,
including areas maintained in a natural or undisturbed character or areas improved for active or
passive recreation.
v. "Greenways" refers to a linear open space along a natural or constructed
corridor, which may be used for pedestrian or bicycle passage. Greenways often link areas of
activity, such as parks, cultural features, or historic sites with each other and with populated
areas.
vi. "Parking and associated driveways" refers to an area designed and
designated for temporary accommodation for motor vehicles whether for a fee or as a service.
And areas that are predominantly used for vehicular transportation, these areas may also contain
pedestrian walkway, utility easements, railroad crossings, and/or on -street parking areas.
b. No physical redevelopment of the Property may occur unless and until DEQ's
Solid Waste Section and Brownfields Program conclude in writing that the proposed
redevelopment will not negatively affect the cover, structural integrity and monitoring systems at
the closed landfill facility.
c. No physical redevelopment of the Property may occur unless and until DEQ's
Solid Waste Section and Brownfields Program review a plan for redevelopment (Redevelopment
Plan) that will address:
i. public safety for all aspects of the redevelopment;
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Page 19 of 39
-1
systems;
ii. maintenance of the landfill cover, structural integrity and monitoring
iii, the plan shall include a minimum of 2 feet of clean fill for any waste
containing area of the landfill and the maintenance there of;
iv, assessment and management of methane and landfill gases;
v. soil and groundwater management during the redevelopment phase;
vi, the plan shall be certified by a licensed Professional Engineer in North
Carolina; and
vii. within 90 days after the conclusion of physical redevelopment, the then
owner of the Property shall provide DEQ a report, subject to written DEQ approval, on
environment -related activities conducted pursuant to the Redevelopment Plan, which report shall
include a summary and drawings and describe how the physical redevelopment was accomplished
in accordance with the Redevelopment Plan. DEQ agrees to review the Redevelopment Plan and
to provide comments or questions to the Project Developer within 45 days of receipt of the
Redevelopment Plan.
d. Within 30 days following recordation of the Notice referenced below in
paragraph 22, the then owner of the Property shall submit to DEQ a written plan for monitoring
surface water at the Property through sampling and analysis. The owner shall be responsible for
making any modifications to the plan necessary for DEQ approval. Upon DEQ approval of the
plan, in writing, the plan shall be implemented by the owner of the Property on the schedule in
the approved plan.
i. The plan shall include, at a minimum:
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M
sampled pursuant to the plan;
A. designation of at least four (4) surface water locations to be
B. a schedule for sampling of the designated surface water
locations for volatile organic compounds and metals at least once each year during the same
thirty -day period, and a plan for increasing the sampling frequency should results show above
DEQ established acceptable risk levels;
C. analysis of the samples by the most current version of U.S.
Environmental Protection Agency Method 8260, 200.7, 200.8, 245.1, and 300.0;
days after sampling;
D. provision of the sampling analyses to DEQ in writing within 30
E. provision for a calculation of resultant risk in accordance with
DEQ guidelines and procedures.
ii. When the plan requires sampling, analysis, and reporting, the then owner
of the affected portion(s) of the Property shall be responsible for compliance. The plan may be
amended with DEQ's prior written approval. The required monitoring shall continue until
sampling pursuant to the plan shows the concentrations of any and all metals and volatile organic
compounds present in excess of the standards set forth in the most current version of Title 15A of
the North Carolina Administrative Code, Subchapter 02B, (January 1, 2015 version), are stable,
declining or undetected for a minimum of three (3) consecutive years; and
iii. Should the analytical results of the surface water sampling indicate
unacceptable risk levels when calculated in accordance with DEQ guidelines and procedure, the
then owner of the property shall submit a plan to DEQ for written approval to mitigate said risk to
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Page 21 of 39
``
acceptable levels, including institutional controls for public notice and access restriction. Once
approved by DEQ, said measures shall be implemented by the then owner on a schedule acceptable
to DEQ.
e. The owner of the Property shall, at its own expense, correct any impacts to the
landfill, as determined by DEQ, that increase the cost of compliance or ability to comply with rules
and regulations for environmental protection, or adversely affect environmental permits regarding
the landfill that are caused by development on the landfill. Said corrections must be made with
prior DEQ approval to the written satisfaction of DEQ's Brownfields Program and Solid Waste
Section.
f. No building(s), lighting, or other development that poses risks of exposure or
ignition of methane or landfill gases may be constructed on the Property until methane/landfill
gas mitigation measures and/or a methane monitoring system are designed for such building(s),
lighting, or other development by a professional engineer licensed in North Carolina. Should
such methane/landfill gas mitigation or monitoring measures be necessary, the measures shall be
implemented in accordance with a plan approved in writing by DEQ in advance. The
methane/landfill gas measures shall include methodology(ies) for demonstrating performance of
said measures. Prior to building occupancy, such mitigation measures and/or monitoring
systems shall have been installed or implemented in accordance with such DEQ-approved plan
and to the satisfaction of a professional engineer licensed in North Carolina, as evidenced by said
engineer's seal on a report that includes photographs and a description of the installation and
performance of said measures.
g. Unless approved by DEQ, driveway and parking surfaces shall not be paved
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Page 22 of 39
11
with asphalt, concrete or other impervious materials. To the extent DEQ determines, in order to
protect the public health, that driveways and parking surfaces require venting for
methane/landfill gas, such venting will be implemented and installed. To the extent DEQ
determines, in order to protect the public health, that any other impervious surfaces, including
but not limited to building slabs, require venting for methane/landfill gas, such venting shall be
implemented. The design plans for driving and parking surfaces and for any impervious surface
covering shall require prior written DEQ approval. The Property may not be used as a
recreational complex until DEQ has approved a report submitted by Prospective Developer on
post -construction methane/landfill gas sampling at the sites of driveway and parking surfaces,
and in the vicinity of any impervious surface covering installed at the Property.
h. DEQ and Prospective Developer acknowledge and agree that BASF is
currently sampling groundwater on the Property on a periodic basis. If DEQ detennines that
BASF and Colbond, Inc., have discontinued the groundwater monitoring program for the
Property, and, after the exercise of all reasonable efforts, DEQ is unable to compel BASF or
Colbond, Inc., to perform such monitoring, DEQ may require the then current owner of the
Property to conduct groundwater monitoring at the Property. DEQ may require the then current
owner of all or any portion of the Property to conduct such monitoring activities as DEQ's
Brownfields Program determines are reasonably necessary to make the Property suitable for the
uses specified in subparagraph 17.a. above while fully protecting public health and the
environment. Such activities, if required by DEQ of the then -current owner, shall be conducted
pursuant to a plan submitted to, and approved by, DEQ in advance. The plan shall include, but is
not limited to, sampling methodology, analytes, analytical methods, a schedule for sampling, and
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Page 23 of 39
criteria for cessation of monitoring.
i. Subject to modification by any measures implemented in paragraph 17.d.iii
above, only areas designated "Ball Fields" on the plat component of the Notice referenced in
paragraph 22 may be used for designed ball fields, and this use may not occur in any such area
unless and until:
i. a minimum of 2 feet of clean fill is installed per a plan DEQ's Solid
Waste Section and Brownfields Program approves in writing in advance, including sampling and
analysis of the fill to DEQ's satisfaction;
ii. methane and landfill gases are evaluated, managed, and/or mitigated to
DEQ's satisfaction; and
iii. DEQ approves in writing a report regarding the plan that is submitted
within 30 days thereafter. Any deficiencies noted by DEQ shall be corrected to DEQ's
satisfaction within 30 days of DEQ's notification of said deficiency.
j. No activities that encounter, expose, remove or use groundwater (for example,
installation of water supply wells, fountains, ponds, lakes or swimming pools, or construction or
excavation activities that encounter or expose groundwater) or surface water may occur on the
Property without any prior sampling (and sampling analysis) DEQ deems desirable, and any
remediation DEQ deems desirable based on the analysis, to ensure the Property is suitable for the
uses specified in subparagraph 17.a. above and that public health and the environment are fully
protected.
k. None of the contaminants known to be present in the environmental media at
the Property, including those listed in Exhibit 2 hereto, may be used or stored at the Property
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Page 24 of 39
2~
without the prior written approval of DEQ, except in de minimis amounts for cleaning and other
routine housekeeping activities.
1. The owner of any portion of the Property where any existing, or subsequently
installed, DEQ-approved monitoring well is damaged shall be responsible for repair of any such
wells to DEQ's written satisfaction and within a time period acceptable to DEQ.
m. Neither DEQ, nor any party conducting environmental assessment or
remediation at the Property at the direction of, or pursuant to a permit, order or agreement issued
or entered into by DEQ, may be denied access to the Property for purposes of conducting such
assessment or remediation, which is to be conducted using reasonable efforts to minimize
interference with authorized uses of the Property.
n. During January of each year after the year in which the Notice referenced
below in paragraph 22 is recorded, the owner of any part of the Property as of January 1" of that
year shall submit a notarized Land Use Restrictions Update ("LURU") to DEQ, and to the chief
public health and environmental officials of Buncombe County, certifying that, as of said
January 1', the Notice of Brownfields Property containing these land use restrictions remains
recorded at the Buncombe County Register of Deeds office and that the land use restrictions are
being complied with, and stating:
i. the name, mailing address, telephone and facsimile numbers, and
contact person's e-mail address of the owner submitting the LURU if said owner acquired any
part of the Property during the previous calendar year; and
ii. the transferee's name, mailing address, telephone and facsimile
numbers, and contact person's e-mail address, if said owner transferred any part of the Property
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Page 25 of 39
2J
during the previous calendar year.
iii. whether any methane monitoring and/or mitigation systems installed
pursuant to subparagraphs 17.c.iv.,f., and idi., above are performing as designed, and whether the
uses of the ground floors of any buildings containing such monitoring and/or mitigation systems
have changed, and, if so, how.
18. The desired result of the above -referenced land use restrictions is to make the
Property suitable for the uses specified in the Agreement while fully protecting public health and
the environment.
19. The guidelines, including parameters, principles and policies within which the
desired results are to be accomplished are, as to field procedures and laboratory testing, the
Guidelines of the Inactive Hazardous Sites Branch of DEQ's Superfund Section, as embodied in
their most current version.
20. The consequences of achieving or not achieving the desired results will be that the
uses to which the Property is put are or are not suitable for the Property while fully protecting
public health and the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
21. In addition to providing access to the Property pursuant to subparagraph 17.m.
above, Prospective Developer shall provide DEQ, its authorized officers, employees,
representatives, and all other persons performing response actions under DEQ oversight, access
at all reasonable times to other property controlled by Prospective Developer in connection with
the performance or oversight of any response actions at the Property under applicable law.
While Prospective Developer owns the Property, DEQ shall provide reasonable notice to
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ALTANIOKIF.NVIRONMENTAL, INC.
Page 27 of 39
Exhibit 2
The most recent environmental sampling at the Property reported in the Environmental
Reports occurred in May of 2014. The following tables set forth, for contaminants present at the
Property above unrestricted use standards, the maximum concentration found at each sample
location and the applicable standard:
Groundwater contaminants (in micrograms per liter, the equivalent of parts per billion),
the standards for which are contained in Title 15A of the North Carolina Administrative Code,
Subchapter 2L, Rule .0202 (April 1, 2013 version):
Groundwater
Sample
Date of Most
Maximum
Standard
Contaminant
Location
Recent
Concentration
(µg/L)
Sampling
at Most Recent
Sampling (µgfl
Chromium
MW-4R
5/l/2014
12.9
10
Cobalt
MW-3
5/1/2014
1.71J
1
MW-4R
5/1/2014
9.48J
MW-5
5/l/2014
26.2
MW-6
5/l/2014
1.47J
Sulfate
MW-5
5/1/2014
280,0001)
250,000
Vanadium
MW-3
5/1/2014
2.95J
0.3
MW-4R
5/1/2014
21.5
MW-6
5/1/2014
2.25J
Surface water contaminants in micrograms per liter (the equivalent of parts per billion),
the unrestricted use standards for which are contained in Title 15A of the North Carolina
Administrative Code, Subchapter 2B, Rule .0208 (May, 2007 version):
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Page 28 of 33
ZJ
Surface Water Contaminant
Sample
Date of
Concentration
Standard
Location
Sampling
Exceeding Standard
(ug/L)
(ug/L)
Silver
SW-1
5/l/2014
1.9
0.06
DW-1
5/l/2014
1.9
Book: 5411 Page: 1936 Page 28 of 39
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Page 29
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Book: 5411 Page: 1936 Seq:29
Book: 5411 Page: 1936 Page 29 of 39
Page 30 of 39
130
Exhibit C
Legal Description
Former BASF Landfill
BP# 15011-11-11
BEING all that certain parcel of land lying in Lower Hominy Township, Buncombe
County, North Carolina, and being more particularly described as follows:
BEGINNING at a #5 rebar found (RBF) with an "HB" cap at the northwestern corner of
the Fletcher Partners, Inc. parcel shown as Parcel "E" in PB 118, Page 147 and in the
eastern line of the Enka Partners of Asheville, LLC parcel shown as Parcel "B" in PB
118, Page 147, said rebar lying North 01 °34'52" East 717.60 feet from a #5 RBF with an
"HB" cap; thence from said BEGINNING point North 01 034'52" East (passing a #5 rebar
set (RBS) with an "EHA" cap at 214.56 feet) a total distance of 432.28 feet to a #5 RBF
with an "HB" cap; thence North 68012'19" East 150.67 feet to a #5 RBF with an "HB"
cap; thence North 56027'14" East 31.89 feet to a #5 RBS with an "EHA" cap; thence
North 40°01'34" East 32.83 feet to a #5 RBF with an "HB" cap; thence North 28°01'10"
East 59.48 feet to a #5 RBF with an "HB" cap; thence North 49°03'50" East 42.17 feet
to a #5 RBF with an "HB" cap; thence North 34°48'18" West 68.04 feet to a #5 RBF with
an "HB" cap; thence North 33023'51" West 73.00 feet to a #5 RBF with an "HB" cap;
thence North 53°32'54" West 94.86 feet to a #5 RBF with an "HB" cap; thence North
56009'34" West 97.34 feet to a #5 RBS with an "EHA" cap; thence North 01 034'52" East
291.86 feet to a #5 RBS with an "EHA" cap near the southern bank of Hominy Creek;
thence more or less with the northern bank of Hominy Creek the following 7 (seven)
calls:
1) North 67°45'33" East 503.15 feet to a #5 RBS with an "EHA" cap;
2) North 83'18'04" East 140.22 feet to a #5 RBS with an "EHA" cap;
(passing a #5 RBS with an "EHA" cap at 15.29 feet)
3) South 34038'22" East 133.89 feet to a #5 RBS with an "EHA" cap;
4) North 88'25'16" East 157.93 feet to a #5 RBS with an "EHA" cap;
5) South 7391013" East 78.82 feet to a #5 RBS with an "EHA" cap;
6) South 82'13'17" East 218.65 feet to a #5 RBS with an "EHA" cap;
7) North 83°00'40" East 237.02 feet to a #5 RBF with an "HB" cap;
thence leaving the southern bank of Hominy Creek a course of South 35°04'33" East
331.87 feet to a #5 RBF with an "HB" cap; thence South 20°58'10" East 323.58 feet to a
#5 RBF with an "HB" cap; thence South 04'05'10" West 249.89 feet to a #5 RBF with
an "HB" cap; thence South 36°25'49" West 284.71 feet to a #5 RBF with an "HB" cap;
thence South 61'47'15" West 303.14 feet to a #5 RBF with an "HB" cap; thence North
86°43'00" West 666.38 feet to a #5 RBF with an "HB" cap; thence North 54°57'51" West
74.06 feet to a #5 RBF with an "HB" cap; thence North 86°20'48" West 242.29 feet to a
#5 RBS with an "EHA" cap; thence South 69°01'01" West 302.32 feet to the point and
place of BEGINNING. Containing 41.08 acres more or less, as shown on that certain
survey entitled "EXHIBIT B to the Notice of Brownfields Property - SURVEY PLAT -
Boundary Survey for Enka Partners of Asheville, LLC" by Ed Holmes & Associates Land
Surveyors, PA, dated September 9, 2015.
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Page 31 of 39
1\
Prospective Developer of the timing of any response actions to be undertaken by or under the
oversight of DEQ at the Property. Notwithstanding any provision of this Agreement, DEQ
retains all of its authorities and rights, including enforcement authorities related thereto, under
the Act and any other applicable statute or regulation, including any amendments thereto.
22. DEQ has approved, pursuant to N.C.G.S. § 130A-310.35, a Notice of Brownfields
Property for the Property containing, inter alia, the land use restrictions set forth in Section V
(Work to Be Performed) of this Agreement and a survey plat of the Property. Pursuant to
N.C.G.S. § 130A-310.35(b), within 15 days of the effective date of this Agreement Prospective
Developer shall file the Notice of Brownfields Property in the Buncombe County, North
Carolina register of deeds' office. Within three (3) days thereafter, Prospective Developer shall
furnish DEQ a copy of the documentary component of the Notice containing a certification by
the register of deeds as to the Book and Page numbers where both the documentary and plat
components of the Notice are recorded, and a copy of the plat with notations indicating its
recordation.
23. This Agreement shall be attached as Exhibit A to the Notice of Brownfields
Property. Subsequent to recordation of said Notice, any deed or other instrument conveying an
interest in the Property shall contain the following notice. "The property which is the subject of
this instrument is subject to the Brownfields Agreement attached as Exhibit A to the Notice of
Brownfields Property recorded in the Buncombe County land records, Book SALI L, Page L43&"
A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and
Submissions), though financial figures related to the conveyance may be redacted.
24. The Prospective Developer shall ensure that a copy of this Agreement is provided to
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Page 32 of 39
31t-
any current lessee or sublessee on the Property as of the effective date of this Agreement and
shall ensure that any subsequent leases, subleases, assignments or transfers of the Property or an
interest in the Property are consistent with this Section (Access/Notice To Successors In
Interest), Section V (Work to be Performed) and Section XI (Parties Bound &
Transfer/Assignment Notice) of this Agreement.
VII. DUE CARE/COOPERATION
25. The Prospective Developer shall exercise due care at the Property with respect to
regulated substances and shall comply with all applicable local, State, and federal laws and
regulations. The Prospective Developer agrees to cooperate fully with any remediation of the
Property by DEQ and further agrees not to interfere with any such remediation. In the event the
Prospective Developer becomes aware of any action or occurrence which causes or threatens a
release of contaminants at or from the Property, the Prospective Developer shall immediately
take all appropriate action to prevent, abate, or minimize such release or threat of release, and
shall, in addition to complying with any applicable notification requirements under N.C.G.S.
130A-310.1 and 143-215.85, and Section 103 of CERCLA, 42 U.S.C. § 9603, or any other law,
immediately notify DEQ of such release or threatened release.
VIII. CERTIFICATION
26. By entering into this agreement, the Prospective Developer certifies that, without
DEQ approval, it will make no use of the Property other than that committed to in the
Brownfields Property Application dated May 22, 2008 by which it applied for this Agreement
(except as may be modified herein). That use is as set forth in subparagraph 17.a. above.
Prospective Developer also certifies that to the best of its knowledge and belief it has fully and
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Page 33 of 39
accurately disclosed to DEQ all information known to Prospective Developer and all information
in the possession or control of its officers, directors, employees, contractors and agents which
relates in any way to any regulated substances at the Property and to its qualification for this
Agreement, including the requirement that it not have caused or contributed to the contamination
at the Property.
IX. DEO'S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
27. Unless any of the following apply, Prospective Developer shall not be liable to DEQ,
and DEQ covenants not to sue Prospective Developer, for remediation of the Property except as
specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the Property by or under the control or direction
of the Prospective Developer increase the risk of harm to public health or the environment, in
which case Prospective Developer shall be liable for remediation of the areas of the Property,
remediation of which is required by this Agreement, to the extent necessary to eliminate such
risk of harm to public health or the environment.
c. A land use restriction set out in the Notice of Brownfields Property required
under N.C.G.S. 130A-310.35 is violated while the Prospective Developer owns the Property, in
which case the Prospective Developer shall be responsible for remediation of the Property to
unrestricted use standards.
d. The Prospective Developer knowingly or recklessly provided false information
that formed a basis for this Agreement or knowingly or recklessly offers false information to
demonstrate compliance with this Agreement or fails to disclose relevant information about
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Page 34 of 39
'5 y
contamination at the Property.
e. New information indicates the existence of previously unreported
contaminants or an area of previously unreported contamination on or associated with the
Property that has not been remedaated to unrestricted use standards, unless this Agreement is
amended to include any previously unreported contaminants and any additional areas of
contamination. If this Agreement sets maximum concentrations for contaminants, and new
information indicates the existence of previously unreported areas of these contaminants, further
remediation shall be required only if the areas of previously unreported contaminants raise the
risk of the contamination to public health or the environment to a level less protective of public
health and the environment than that required by this Agreement.
f. The level of risk to public health or the environment from contaminants is
unacceptable at or in the vicinity of the Property due to changes in exposure conditions,
including (i) a change in land use that increases the probability of exposure to contaminants at or
in the vicinity of the Property or (ii) the failure of remediation to mitigate risks to the extent
required to make the Property fully protective of public health and the environment as planned in
this Agreement.
g. The Department obtains new information about a contaminant associated with
the Property or exposures at or around the Property that raises the risk to public health or the
environment associated with the Property beyond an acceptable range and in a manner or to a
degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under N.C.G.S. 130A-310.35.
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Page 35 of 39
28. Except as may be provided herein, DEQ reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
29. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, N.C.G.S. § 113A-1, et se< .
30. Consistent with N.C.G.S. § 130A-310.33, the liability protections provided herein,
and any statutory limitations in paragraphs 27 through 29 above, apply to all of the persons listed
in N.C.G.S. § 130A-310.33, including future owners of the property, to the same extent as
prospective developer, so long as these persons are not otherwise potentially responsible parties
or parents, subsidiaries, or affiliates of potentially responsible parties.
X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
31. In consideration of DEQ's Covenant Not To Sue in Section IX of this Agreement
and in recognition of the absolute State immunity provided in N.C.G.S. § 130A-310.37(b), the
Prospective Developer hereby covenants not to sue and not to assert any claims or causes of
action against DEQ, its authorized officers, employees, or representatives with respect to any
action implementing the Act, including negotiating, entering, monitoring or enforcing this
Agreement or the above -referenced Notice of Brownfields Property.
XI. PARTIES BOUND
32. This Agreement shall apply to and be binding upon DEQ, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party's signatory to this
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
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XII. DISCLAIMER
33. This Agreement in no way constitutes a finding by DEQ as to the risks to public
health and the environment which may be posed by regulated substances at the Property, a
representation by DEQ that the Property is fit for any particular purpose, nor a waiver of
Prospective Developer's duty to seek applicable permits or of the provisions of N.C.G.S. §
130A-310.37.
34. Except for the Land Use Restrictions set forth in paragraph 16.a., above and
N.C.G.S. § 130A-310.33(a)(l)-(5)'s provision of the Act's liability protection to certain persons
to the same extent as to a prospective developer, no rights, benefits or obligations conferred or
imposed upon Prospective Developer under this Agreement are conferred or imposed upon any
other person.
XIII. DOCUMENT RETENTION
35. The Prospective Developer agrees to retain and make available to DEQ all business
and operating records, contracts, site studies and investigations, and documents relating to
operations at the Property, for six years following the effective date of this Agreement, unless
otherwise agreed to in writing by the Parties. At the end of six years, the Prospective Developer
shall notify DEQ of the location of such documents and shall provide DEQ with an opportunity
to copy any documents at the expense of DEQ.
XIV. PAYMENT OF ENFORCEMENT COSTS
36. If the Prospective Developer fails to comply with the terms of this Agreement,
including, but not limited to, the provisions of Section V (Work to be Performed), it shall be
liable for all litigation and other enforcement costs incurred by DEQ to enforce this Agreement
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or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
37. Unless otherwise required by DEQ or a Party notifies the other Party in writing of a
change in contact information, all notices and submissions pursuant to this Agreement shall be
sent by prepaid first class U.S. mail, as follows:
a. for DEQ:
Tracy Wahl
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Martin Lewis
Enka Partners of Asheville, LLC
1091 Hendersonville Road
Asheville, NC 28806
Notices and submissions sent by prepaid first class U.S. mail shall be effective on the third day
following postmarking. Notices and submissions sent by hand or by other means affording
written evidence of date of receipt shall be effective on such date.
XVI. EFFECTIVE DATE
38. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving it, signed, from DEQ. Prospective Developer shall sign the Agreement within
seven (7) days following such receipt.
XVII. TERMINATION OF CERTAIN PROVISIONS
39. If any Party believes that any or all of the obligations under Section VI
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the
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requirements of the Agreement, that Party may request in writing that the other Party agree to
terminate the provision(s) establishing such obligations; provided, however, that the provision(s)
in question shall continue in force unless and until the Party requesting such termination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CONTRIBUTION PROTECTION
40. With regard to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
claims to the extent provided by N.C.G.S. § 130A-310.37(a)(5)-(6). The subject matter of this
Agreement is all remediation taken or to be taken and response costs incurred or to be incurred
by DEQ or any other person in relation to the Property.
41. The Prospective Developer agrees that, with respect to any suit or claim for
contribution brought by it in relation to the subject matter of this Agreement, it will notify DEQ
in writing no later than 60 days prior to the initiation of such suit or claim.
42. The Prospective Developer also agrees that, with respect to any suit or claim for
contribution brought against it in relation to the subject matter of this Agreement, it will notify
DEQ in writing within 10 days of service of the complaint on it.
XIX. PUBLIC COMMENT
43. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after the last to occur of the following: publication of the approved summary of
the Notice of Intent to Redevelop a Brownfields Property required by N.C.G.S. § 130A-310.34
in a newspaper of general circulation serving the area in which the Property is located,
conspicuous posting of a copy of said summary at the Property, and mailing or delivery of a copy
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of the summary to each owner of property contiguous to the Property. After expiration of that
period, or following a public meeting if DEQ holds one pursuant to N.C.G.S. § 130A-310.34(c),
DEQ may modify or withdraw its consent to this Agreement if comments received disclose facts
or considerations which indicate that this Agreement is inappropriate, improper or inadequate.
IT IS SO AGREED:
NORTH CAROLINA DEPART ENT OF ENVIRONMENTAL QUALITY
13y.
Michael E. IScott Da e
Acting Director, Division of Waste Management
IT IS SO AGREED:
ENKA PARTNERS OF ASHEVILLE. LLC
Martin Lewis
Managing Member
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