16021_New Belgium Brewing_recorded NBP_20140311

The Brownfields .Agreement between Prospective Developer and DENR is attached hereto as
Exhibit 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 Agreem_ent'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.
The plat component of this Notice is recorded at the plat book and page number shown at the
top of this documentary component of the Notice. Exhibit B to this Notice is a reduction, to 8 1/2 11 x
11 ", of said plat. The plat shows areas designated by DENR, has been prepared and certified by a
professional land surveyor, 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
DENR (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 DENR shall be understood to include any
successor in function. The restrictions are hereby imposed on the Brownfields Property, and are as
follows:
1. Unless DENR approves otherwise in advance and in writing, no use may be made of the
Property other than for a state of the art craft brewery and offices, a visitor center, wastewater
treatment, warehousing, distribution, parking, greenways, employee recreation, event space, walking
areas, stream restoration, commercial, or industrial uses. For purposes of this restriction, the following
definitions apply:
a. "A craft brewery facility" refers to an establishment for the manufacture of
beverages, including without limitation beer and ale, together with associated public roadways and
related infrastructure.
b. "Offices " refers to the provision of business or professional services and other
services in support of the craft brewery and related facilities and activities.
c. "Warehousing and distribution" refers to the storage of product and dock space
for loading and shipment to vendors.
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d. "Parking" refers to any area designed and designated for temporary
accommodation for motor vehicles whether for a fee or as a service.
e. "Greenways" refers to 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. "Employee recreation and walking areas" refers to an area of open or designed
space of the development intended for the use and enjoyment of the occupants.
g. "Event space" refers to an area used for private, public and community
activities (such as, for example, festivals, musical events or shows for employees or the general public),
which may include food and beverage service.
h. "Stream restoration" refers to the improvement or restoration of the
environmental and hydraulic functions of a stream.
i. "Commercial" refers to a business enterprise, including, but not limited to, retail
sales and food/beverage service.
j. "Industrial" refers to the manufacture, assembly, fabrication, or processing of
goods or materials.
2. Physical redevelopment of the Property may not occur other than in accord, as
determined by DENR, with an EMP, approved in writing by DENR in advance, that is (i) consistent with
all the other land use restrictions, (ii) describes redevelopment activities at the Property, and (iii)
addresses health, safety and environmental issues that may arise from use of the Property during
construction or redevelopment. The EMP shall include:
a. soil, sediment, and water management issues, including without limitation those
resulting from contamination identified in the Environmental Reports;
b. issues related to potential sources of contamination referenced in Exhibit 2 of
Exhibit A hereto; and
c. contingency plans for addressing newly discovered potential sources of
environmental contamination (e.g., tanks, drums, septic drain fields).
3. Within 90 days after the conclusion of physical redevelopment, the then owner of the
Property shall provide DENR a report, subject to written DENR approval, on environment-related
activities conducted pursuant to the EMP, which report includes a summary and drawings and
describes:
a. actions taken in accordance with the EMP;
b. soil grading and cut and fill actions;
c. methodology(ies) employed for field screening, sampling and laboratory analysis
of environmental media;
d. stockpiling, containerizing, decontaminating, treating, handling, laboratory
analysis and ultimate disposition of any soil, groundwater or other materials suspected or confirmed to
be contaminated with regulated substances; and
e. removal of any contaminated soil, water or other contaminated materials (for
example, concrete, demolition debris) from the Property (copies of all legally required manifests shall be
included).
4. After conclusion of the redevelopment period referenced in paragraph 2 as determined
by DENR, no activity that disturbs soil in the areas designated "Area of Soil Contamination" and
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"Possible C&D Dumping Area" on the plat component of this Notice, may occur unless and until DENR
states in writing, in advance of the proposed activity, that said activity may occur if carried out along
with any measures DENR deems necessary to ensure the Property will be suitable for the uses specified
in paragraph 1 above while fully protecting public health and the environment, except that PD need not
obtain approval if such activity is conducted in accordance with the EMP. Notwithstanding the above,
the Prospective Developer may conduct landscaping activities including without limitation mowing,
pruning of above-ground vegetation, and landscape plantings (providing total depth of the final soil
cover is not compromised and the work does not penetrate into impacted soils), as well as emergency
repair of underground infrastructure, provided that DENR shall be given written notice (if only by
email) of any such emergency repair no later than the next business day, and that any related assessment
and remedial measures required by DENR shall be taken.
5. Soil in the area designated "Area of Possible Lead Impacted Soil Contamination" on
the plat component of this Notice, may not be disturbed unless and until DENR approves in writing a
plan with a schedule, and its implementation, that requires:
a. capping (with asphalt, concrete, stone, brick, terrazzo, roofing, ceramic tile or
other impervious material approved in writing in advance by DENR), remediation and/or removal of
sufficient soil to satisfy DENR that the Property is suitable for the uses specified in paragraph 1 above
and that public health and the environment are fully protected despite any remaining soil
contamination, as determined by sampling of each excavation's side walls and bottom; and
b. a written report regarding implementation of the plan, submitted no later than
30 days following implementation completion, and correction of any deficiencies DENR identifies in the
report or in implementation of the plan within 30 days after DENR provides written notice of any
deficiencies.
6. Prior to any use of the Property after physical redevelopment is complete, the area on
the plat component of this Notice depicted as "Possible C&D Dumping Area" shall have had a cover
installed pursuant to the EMP.
7. Any and all stream restoration activities conducted by the Prospective Developer on the
Property shall be implemented in accordance with requirements imposed by the United States Army
Corps of Engineers and/or the North Carolina Division of Water Resources.
8. Except for (i) the assessment and use of geothermal wells and applications, and (ii)
activities conducted pursuant to the EMP, and unless compliance with this Land Use Restriction is
waived in writing by DENR in advance in regard to a particular activity, no activities that encounter,
expose, remove or use groundwater (for example, installation of water supply wells, ponds, lakes or
swimming pools, or construction or excavation activities that encounter or expose groundwater) may
occur on the Property without prior sampling and analysis of groundwater to the written satisfaction of
DENR in any areas proposed for such activities, and submittal of the analytical results to DENR. If such
results reflect contaminant concentrations that exceed the standards and screening levels applicable to
the uses authorized for the Property, the groundwater-related activities proposed may occur only in
compliance with any written conditions DENR imposes for the protection of public health and the
environment.
9. No building(s) may be constructed on the Property until:
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a. DENR determines in writiug, based on submittals from the building's
proponent, that the building's users, and public health and the environment, would not be at risk from
the Property's methane impacted area; or
b. methane mitigation meas1,1res and/or a methane monitoring system are designed
for such building(s) in accordance with a plan approved in writing by DENR in advance, including.
methodology(ies) for demonstrating performance of said measures/monitoring. Prior to building
occupancy, such mitigation measures and/or monitoring systems shall have been installed or
implemented in accordance with such DENR-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.
10. Surface waters at the Property may not be used except as approved by DENR in
advance and in writing. For the purposes of this provision, the collection an.d management of
stormwater consistent with applicable law or rules is not considered "use". Rain, snow and ice on the
Property may be collected in a manner that prevents contact with impacted soil and used in accordance
with any and all applicable regulations.
11. None of the contaminants known to be present in the environmental media at the
Property above unrestricted use standards (whether reflected in applicable law, regulations or guidance
as standards, goals or levels), including those listed in Exhibit 2 to Exhibit A hereto, may be used or
stored at the Property without the prior written approval of DENR, except:
a. in de minimis quantities for cleaning and other routine housekeeping and
routine maintenance activities;
b. as component constituents of articles, equipment and materials used on the
Property, such as in stainless steel or building materials; and/or ·
c. except as fuel, biofuels or other fluids (either in integrated or separate storage
units) customarily used in vehieies, landscaping equipment, or emergency generators.
For the avoidance of doubt, this paragraph 11 is not intended to prevent the use, storage
or other handling of any particular materials or constituents on the Property. Instead, it is intended to
allow DENR to review and approve of methods and procedures for the handling of materials or
constituents so as to assist DENR, if necessary, in reasonably distinguishing such materials or
constituents from contamination at the Property predating the effective date of Exhibit A hereto.
12. Neither DENR, 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
DENR, 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.
13. 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 1st of that year shall submit a notarized Land Use Restrictions
Update ("LURU") to DENR, and to the chief public health and environmental official(s) of Buncombe
County, certifying that, as of said January 1st, 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
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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;
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; and
c. whether any methane monitoring and/or mitigation systems installed pursuant
to subparagraph 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.
For purposes of the land use restrictions set forth above, the DENR point of contact shall
be the DENR 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 DENR through the remedies provided in NCGS §BOA, 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 DENR (or its successor in function), or his/her delegate, shall be subject to enforcement by
DENR 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.
-f'-IN WITI::{ESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this L day of f?-brwv91_.--, 2014. .
New Belgium Brewing Company
By: Kimb~~~
Chief Executive Officer
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EXHIBIT A
NORTH CAROLINA DEPART1YIENT OF ENVIRON1YIENT AND NATURAL RESOURCES
IN THE MATTER OF: New Belgium Brewing Company
UNDER THE AUTHORITY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, N.C.G.S. § BOA-310.30, et seq.
Brown.fields Project # 16021-12-11
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I. INTRODUCTION
BROWNFIELDS AGREE1YIENT re:
New Belgium Brewing Company
55, 157, 163 Craven Street
Asheville, Buncombe County
This Brown.fields Agreement ("Agreement") is entered into by the North Carolina
Department of Environment and Natural Resources ("DENR") and New Belgium Brewing
Company (collectively the "Parties") pursuant to the Brown.fields Property Reuse Act of 1997,
N.C.G.S. § BOA-310.30, et seq. (the "Act").
New Belgium Brewing Company is a registered North Carolina company with a mailing
address at 327 Hillsborough Street, Raleigh, North Carolina, 27603, with a principal office
located at 500 Linden Street, Fort Collins, Colorado, 80524. Ms. Kimberly Beth Jordan is the
Chief Executive Officer located at the Fort Collins address. New Belgium Brewing Company
proposes to redevelop the property as a state of the art craft brewery and offices, a visitor center,
wastewater treatment, warehousing, distribution, parking, greenways, employee recreation, event
space, walking areas, and stream restoration, as well as other commercial or industrial uses. A
map showing the location of the property which is the subject of this Agreement is attached
hereto as Exhibit 1.
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
BF BFA 12-12-13 DENR
limitations contained in Section VIII (Certification), Section IX (DENR's Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
potential liability of New Belgium Brewing Company for-contaminants at the property which is
the subject ofthis Agreement.
The Parties agree that New Belgium Brewing Company's entry into this Agreement, and
the actions undertaken by New Belgium Brewing Company in accordance with the Agreement,
do not constitute an admission of any liability by New Belgium Brewing Company.
The resolution of this potential liability, in exchange for the benefit New Belgium
Brewing Company shall provide to DENR, is in the public interest.
II. 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 New Belgium Brewing Company.
III. STATEMENT OF FACTS
3. The Property comprises 19.81 acres. Prospective Developer has committed itself to
redevelopment for no uses other than a state of the art craft brewery and offices, a visitor center,
wastewater treatment, warehousing, distribution, parking, greenways, employee recreation, event
space, walking areas, and stream restoration, as well as other commercial or industrial uses.
4. The Property is bordered to the north by Craven Street and Hazel Mill Road with
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undeveloped land beyond, to the south by Craven Street beyond which is a residential area, to the
east by the French Broad River, and to the west by Craven Street with some businesses including -
a former chemical yompany currently a church and an auto repair shop.
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
Phase I Environmental Site Assessment -Altamont March 16, 2011
WNC Stockyards Site Environmental, Inc.
Brownfields Site Assessment -WNC Altamont June 27, 2011
Stockyards Site Environmental, Inc.
Phase I Environmental Site Assessment ECS Carolinas, LLP October 12, 2011
Phase I Environmental Site Assessment Hart & Hickman, PC April 9, 2012
Phase II Environmental Site Assessment Hart & Hickman, PC May 11, 2012
Asbestos Survey Hart & Hickman, PC May 18, 2012
Lead-Based Paint Survey Hart & Hickman, PC May 25,2012
Additional Assessment Work Plan Rev 1 Hart & Hickman, PC July 31, 2012
(Brownfields)
Summary of TCLP Lead Sampling Letter Hart & Hickman, PC January 18, 2013
Brownfields Assessment Report Hart & Hiclrman, PC October 17, 2012
Monitoring Well and Water Supply Well Hart & Hickman, PC January 23, 2013
Abandonment Letter
Initial Abatement Action Report (UST) Hart & Hickman, PC February 5, 2013
Phase I Limited Site Assessment (USTs) Hart & Hickman, PC February 5, 2013
Notice of No Further Action -Risk-Based NCDENR February 7, 2013
Assessment & Corrective Action for
Petroleum Underground Storage Tanks
Brownfields Receptor Survey Hart & Hickman, PC February 11, 2013
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Environmental Management Plan (EMP) Hart & Hickman, PC September 20, 2013
6. For purposes ofthis Agreement, DENR relies on the following representations by
Prospective Developer as to use and ownership of the Property:
a. According to the 1925 Sanborn map the Property is a mix of residential single
family homes, an auto repair facility, a couple of stores, and the interior of the property is
undeveloped.
b. There is a qata gap between 1925 and 1950. The 1950s and 1960s records
indicate that Shulimson Brothers Company auto wrecking and junkyard, which includes auto
parts sales and a gas station to which a restaurant is added in 1957, are on the southern and
central portion of the Property. There was an auto repair and paint shop, tobacco warehouses
with additional warehouses added in the 1960s, livestock market/Penland's Auction and gas
station on the northern portion of the Property.
c. The Property appears similar in the 1970s, with the same uses.
d. By the 1980's the southern portion of the Property had all auto wrecking and
junkyard activities removed. The onsite building materials, concrete and asphalt were placed in
an unpermitted construction and demolition landfill as depicted on the plat component of this
Notice, sometime in the early 1990s.
e. Bell's Mini Storage began construction and operation on the southern portion
of the Property in 2002.
f. Activities on the northern portion of the Property included warehousing,
livestock boarding, an antique auction, a concrete company/garage, and a restaurant, which were
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in operation until August 2012.
g. Prospective Developer purchased the Property on August 10, 2012.
7. Pertinent environmental information regarding the Property includes the following:
a. The Property has impacted soil with benzo(a)pyrene found consistently across
the site at levels slightly above industrial use screening values. Limited areas located centrally
on the site have elevated levels of arsenic, while a localized exceedance of lead in soil has also
been identified. There is localized impact to groundwater in the vicinity of a former gasoline
underground storage tank.
b. Data tables reflecting the concentrations of and other information regarding the
Property's contaminants appear in Exhibit 2 to this Agreement.
8. For purposes of this Agreement DENR 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 DENR a
Brownfields Property Application received on May 17, 2012, purchasing the Property on August
10, 2012 and thereafter conducting certain site demolition and preparation work.
9. Prospective Developer has provided DENR with information, or sworn ce1iifications
regarding that information on which DENR 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)(l );
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b. as a result of the implementation ofthis 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.
10. Prospective Developer has paid DENR a $30,000 "Redevelopment Now" fee, and
shall pay a $2,000 fee each time that DENR reviews a material revision to the Environmental
Mrutagement Plan (EMP) pursuant to subparagraph 16.b., below, that does not involve changes
to the Notice of Brownfields Property or this Agreement; and at least a $3,000 fee each time that
DENR reviews a material revision to the EMP pursuant to subparagraph 16.b., below that
involves changes to the Notice of Brownfields Property or this Agreement. If actual costs
incurred by DENR for reviewing revisions to the EMP that involve changes to tl;le Notice of
Brownfields Property or this Agreement exceed the minimum $3,000 fee described in this
paragraph, Prospective Developer shall pay the minimum fee plus actual costs to DENR only to .
the extent that such costs exceed the minimum $3,000 fee. Other than changes to the EMP 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 DENR only to the extent that such costs
exceed the minimum $1,000 fee. The Parties agree that such fees described above will suffice as
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the $2,000 fee to seek a brownfields agreement required by N.C.G.S. § l30A-310.39(a)(l), and,
within the meaning ofN.C.G.S. § 130A-310.39(a)(2), the full cost to DENR and the North
Carolina Department of Justice of all activities related to this Agreement.
IV. BENEFIT TO COMMUNITY
11. The redevelopment of the Property proposed herein would provide the following
public benefits:
a. a return to productive use of the Property;
b. a spur to additional community redevelopment, through improved
neighborhood appearance and otherwise;
c. the creation of approximately 140 jobs directly for New Belgium and
approximately 260 jobs in the community between industry vendors and suppliers. The
construction of the project is expected to support approximately 350 jobs throughout
development;
d. an increase in tax revenue for affected jurisdictions;
e. improvement of River District access via roadway and bridge updates;
f. the addition of greenways, tying existing parks and greenways together;
g. additional community event space for the area; and
h. "smart growth" through use of land in an already developed area, which avoids
development ofland beyond the urban fringe ("greenfields").
V. WORK TO BE PERFORMED
13. Within 30 days after the effective date ofthis Agreement, Prospective Developer
shall notify DENR whether there are any remaining groundwater monitoring wells, injection
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wells, recovery wells, piezometers and other man-made points of groundwater access at the
Property and, if so, that it is ready to abandon such man-made access points in accordance with
Subchapter 2C of Title 15A of the North Carolina Administrative Code, with the exception of
Division of Water Quality approved geothermal well(s). Unless DENR notifies Prospective
Developer within 10 days of receiving such notification to refrain from such abandonment,
Prospective Developer shall, on a schedule acceptable to DENR, effect said abandonment and,
within 30 days after doing so, provide DENR a report, subject to DENR approval, setting forth
the procedures and results.
' 14. Prospective Developer shall consider the potential for applying sustainability
principles at the Property. Such principles may include, but are not required to include, the nine
(9) areas incorporated into the U.S. Green Building Council Leadership in Energy and
Environmental Design certification progran1 (Sustainable Sites, Water Efficiency, Energy &
Atmosphere, Materials & Resources, Indoor Environmental Quality, Locations & Linkages,
Awareness & Education, Innovation in Design, and Regional Priority) or a similar program.
1°5. 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 ofthis
Agreement (DENR's Covenant Not to Sue and Reservation of Rights), DENR is not requiring
Prospective Developer to perform any active remediation at the Property other than remediation
that may be required pursuant to the DENR-approved Environmental Management Plan (EMP)
required by this Section.
16. By way of the Notice of Brownfields Property referenced below in paragraph 21,
Prospective Developer shall impose the following land use restrictions under the Act, running
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with the land, to make the Property suitable for the uses specified in this Agreement while fully
protecting public health and the environment, instead of remediation to unrestricted use
standards. All references to DENR shall be understood to include any successor in function.
a. Unless DENR approves otherwise in advance and in writing, no use may be
made of the Property other than for a state of the art craft brewery and offices, a visitor center,
wastewater treatment, warehousing, distribution, parking, greenways, employee recreation, event
space, walking areas, stream restoration, commercial, or industrial uses. For purposes of this
restriction, the following definitions apply:
i. "A craft brewery facility" refers to an establishment for the manufacture
of beverages, including without limitation beer and ale, together with associated public
roadways and related infrastructure.
ii. "Offices " refers to the provision of business or professional services
and other services in support of the craft brewery and related facilities and activities.
iii. "Warehousing and distribution" refers to the storage of product and
dock space for loading and shipment to vendors.
iv. "Parking" refers to any area designed and designated for temporary
accommodation for motor vehicles whether for a fee or as a service.
v. "Greenways" refers to 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. "Employee recreation and walking areas" refers to an area of open or
9
designed space of the development intended for the use and enjoyment of the occupants.
vii. "Event space" refers to an area used for private, public and
community activities (such as, for example, festivals, musical events or shows for
employees or the general public), which may include food and beverage service.
viii. "Stream restoration" refers to the improvement or.restoration of the
environmental and hydraulic functions of a stream.
ix. "Commercial" refers to a business enterprise, including, but not
limited to, retail sales and food/beverage service.
x. "Industrial" refers to the manufacture, assembly, fabrication, or
processing of goods or materials.
b. Physical redevelopment of the Property may not occur other than in accord, as
determined by DENR, with an EMP, approved in writing by DENR in advance, that is (i)
consistent with all the other land use restrictions, (ii) describes redevelopment activities at the
Property, and (iii) addresses health, safety and environmental issues that may arise from use of
the Property during construction or redevelopment. The EMP shall include:
i. soil, sediment, and water management issues, including without
limitation those resulting from contamination identified in the Environmental Rep01is;
ii. issues related to potential sources of contamination referenced in
Exhibit 2 of this agreement; and
iii. contingency plans for addressing newly discovered potential sources
of environmental contamination (e.g., tanks, drums, septic drain fields).
c. Within 90 days after the conclusion of physical redevelopment, the then owner
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of the Property shall provide DENR a report, subject to written DENR approval, on
environment-related activities conducted pursuant to the EMP, which report includes a summary
and drawings and describes:
i. actions taken in accordance with the EMP;
ii. soil grading and cut and fill actions;
iii. methodology(ies) employed for field screening, sampling and
laboratory analysis of environmental media;
iv. stockpiling, containerizing, decontaminating, treating, handling,
laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected
or confirmed to be contaminated with regulated substances; and
v. removal of any contaminated soil, water or other contaminated
materials (for example, concrete, demolition debris) from the Property (copies of all legally
required manifests shall be included).
d. After conclusion of the redevelopment period referenced in subparagraph
16.b., as determined by DENR, no activity that disturbs soil in the areas designated "Area of Soil
Contamination" and "Possible C&D Dumping Area" on the plat component of the Notice
referenced in paragraph 21 below, may occur unless and until DENR states in writing, in
advance of the proposed activity, that said activity may occur if carried out along with any
measures DENR deems necessary to ensure the Property will be suitable for the uses specified in
subparagraph 16.a. above while fully protecting public health and the environment, except that
PD need not obtain approval if such activity is conducted in accordance with the EMP.
Not\vithstanding the above, the Prospective Developer may conduct landscaping activities
11
including without limitation mowing, pruning of above-ground vegetation, and landscape
plantings (providing total depth of the final soil cover is not compromised and the work does not
penetrate into impacted soils), as well as emergency repair of underground infrastructure,
provided that DENR shall be given written notice (if only by email) of any such emergency
repair no later than the next business day, and that any related assessment and remedial measures
required by DENR shall be taken.
e. Soil in the area designated "Area of Possible Lead Impacted Soil
Contamination" on the plat component of the Notice referenced in paragraph 21 below, may not
be disturbed unless and until DENR approves in writing a plan with a schedule, and its
implementation, that requires:
i. capping (with asphalt, concrete, stone, brick, terrazzo, roofing, ceramic
. tile or other impervious material approved in writing in advance by DENR), remediation and/or
removal of sufficient soil to satisfy DENR that the Property is suitable for the uses specified in
subparagraph 16.a. above and that public health and the environment are fully protected despite
any remaining soil contamination, as detennined by sampling of each excavation's side walls
and bottom; and
ii. a written report regarding implementation of the plan, submitted no
later than 30 days following implementation completion, and correction of any deficiencies
DENR identifies in the report or in implementation of the plan within 30 days after DENR
provides written notice of any deficiencies.
f. Prior to any use of the Property after physical redevelopment is complete, the
area on the plat component of the Notice referenced in paragraph 21 below depicted as "Possible
12
C&D Dumping Area" shall have had a cover installed pursuant to the EMP.
g. Any and all stream restoration activities conducted by the Prospective
Developer on the Property shall be implemented in accordance with requirements imposed by
the United States Army Corps of Engineers and/or the North Carolina Division of Water Quality.
h. Except for (i) the assessment and use of geothermal wells and applications, and
(ii) activities conducted pursuant to the EMP, and unless compliance with this Land Use
Restriction is waived in writing by DBNR in advance in regard to a particular activity, no
activities that encounter, expose, remove or use groundwater (for example, installation of water
supply wells, ponds, lakes or swimming pools, or construction or excavation activities that
encounter or expose groundwater) may occur on the Property without prior sampling and
analysis of groundwater to the written satisfaction of DENR in any areas proposed for such
activities, and submittal of the analytical results to DENR. If such results reflect contaminant
concentrations that exceed the standards and screening levels applicable to the uses authorized
for the Property, the groundwater-related activities proposed may occur only in compliance with
any written conditions DENR imposes for the protection of public health and the environment.
L No building(s) may be constructed on the Property until:
i. DENR determines in writing, based on submittals from the building's
proponent, that the building's users, and public health and the environment, would not be at risk
from the Property's methane impacted area; or
ii. methane mitigation measures and/or a methane monitoring system are
designed for such building(s) in accordance with a plan approved in writing by DENR in
advance, including methodology(ies) for demonstrating performance of said
13
measures/monitoring. Prior to building occupancy, such mitigation measures and/or monitoring
systems shall have been installed or implemented in accordance with such DENR-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.
j. Surface waters at the Property may not be used except as approved by DENR
in advance and in writing. For the purposes ofthis agreement, the collection and management of
stormwater consistent with applicable law or rules is not considered "use". Rain, snow and ice
on the Property may be collected in a manner that prevents contact with impacted soil and used
in accordance with any and all applicable regulations.
k. None of the contaminants known to be present in the environmental media at
the Property above unrestricted use standards (whether reflected in applicable law, regulations or
guidance as standards, goals or levels), including those listed in Exhibit 2, may be used or stored
at the Property without the prior written approval of DENR, except:
i. in de minimis quantities for cleaning and other routine housekeeping
and routine maintenance activities;
ii. as component constituents of articles, equipment and materials used on
the Property, such as in stainless steel or building materials; and/or
iii. except as fuel, biofuels or other fluids (either in integrated or separate
storage units) customarily used in vehicles, landscaping equipment, or emergency generators.
For the avoidance of doubt, this paragraph 16.k. is not intended to prevent the use,
storage or other handling of any particular materials or constituents on the Property. Instead, it is
14
intended to allow DENR to review and approve of methods and procedures for the handling of
materials or constituents so as to assist DENR, if necessary, in reasonably distinguishing such
materials or constituents from contamination at the Property predating the effective date of this
Agreement.
1. Neither DENR, 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 DENR, 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.
m. During January of each year after the year in which the Notice referenced
below in paragraph 21 is recorded, the owner of any part of the Property as of January 1st of that
year shall submit a notarized Land Use Restrictions Update ("LURU") to DENR, and to the chief
public health and environmental official(s) of Buncombe County, certifying that, as of said
January 1st, 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;
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
during the previous calendar year; and
15
iii. whether any methane monitoring and/or mitigation systems installed
pursuant to subparagraph 16.i. 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.
17. 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.
18. 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 DENR's Superfund Section, as embodied
in their most current version.
19. The consequence of achieving the desired results will be that the property will be
suitable for the uses specified in the Agreement while fully protecting public health and the
environment. The consequence of not achieving the desired results will be that modifications to
land use restrictions and/or remediation in some form may be necessary to fully protect public
health and/or the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
20. In addition to providing access to the Property pursuant to subparagraph 16.1. above,
Prospective Developer shall provide DENR, its authorized officers, employees, representatives,
and all other persons performing response actions under DENR 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, which
16
access is to be conducted on reasonable prior notice except in emergencies and using reasonable
efforts to avoid and minimize interference with authorized uses of such other property. While
Prospective Developer owns the Property, DENR shall provide reasonable notice to Prospective
Developer of the timing of any response actions to be undertaken by or under the oversight of
DENR at the Property. Except as may be set forth in the Agreement, DENR 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.
21. DENR has approved, pursuant to N.C.G.S. § 130A-310.35, a Notice ofBrownfields
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 DENR 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.
22. 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.5/£7D, Page [JJj."
17
A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and
Submissions), provided that: (i) :financial figures related to the conveyance may be redacted, and
(ii) such disclosure may be made subject to the confidentiality and trade secret provisions of the
North Carolina Public Records Law (to the extent applicable).
23. The Prospective Developer shall ensure that a copy of this Agreement is provided to
any current lessee or sub lessee on the Property within seven days of the effective date of this
Agreement and shall ensure that, to the extent it can legally do so, 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) of this Agreement.
VII. DUE CARE/COOPERATION
24. The Prospective Developer shall exercise due care at the Property with respect to the
manner in which regulated substances are handled at the Property 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 DENR and further agrees not to interfere
with any such remediation. DENR agrees, consistent with its responsibilities under applicable
law, to use reasonable efforts to avoid and minimize any interference with the Prospective
Developer's operations by 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 comply with any
applicable notification requirements under N.C.G.S. 130A-3 l 0.1 and 143-215.85, Section 103 of
18
CERCLA, 42 U.S.C. § 9603, and/or any other law. In addition, the Prospective Developer shall
immediately notify the DENR official referenced in paragraph 36.a. below of any such required
notifications.
VIII. CERTIFICATION
25. By entering into this Agreement, the Prospective Developer ce1iifies that, without
DENR approval, it will make no use of the Property other than for a state of the art craft brewery
and the other activities set forth in subparagraph 16.a. Prospective Developer also certifies that
to the best of its knowledge and belief it has fully and accurately disclosed to DENR 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 past use
of regulated substances or known contaminants 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. DENR'S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
26. Unless any of the following apply, Prospective Developer shall not be liable to
DENR, and DENR 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
19
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-3 l 0.35 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 standaTds.
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
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 remediated 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 enviromnent 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
20
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. BOA-310.35.
27. Except as may be provided herein, DENR reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
28. This Agreement does not waive any applicable requirement to obtain a pennit,
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-l, et seq.
29. Consistent with N.C.G.S. § 130A-310.33, the liability protections provided herein,
and any statutory limitations in paragraphs 26 through 28 above, apply to all of the persons listed
in N.C.G.S. § BOA-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. PROSPECTNE DEVELOPER'S COVENANT NOT TO SUE
30. In consideration ofDENR's Covenant Not To Sue in Section IX ofthis 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
21
action against DENR, 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 ofBrownfields Property.
XI. PARTIES BOUND
31. This Agreement shall apply to and be binding upon DENR, 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.
XII. DISCLAIMER
32. This Agreement reflects DENR's evaluation of the risks to public health and the
environment and the fitness of the Property for a particular use only with respect to the
environmental conditions addressed by this Agreement and only to the extent provided herein.
Further, this Agreement is not a waiver of Prospective Developer's duty to seek applicable
permits or of the provisions ofN.C.G.S. § BOA-310.37.
33. 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
34. The Prospective Developer agrees to retain and make available to DENR all business
<µld operating records, contracts, site studies and investigations, and documents relating to any
22
work to be performed pursuant to this Agreement, environmental conditions at the Property, and
compliance with the Land Use Restrictions set forth in paragraph 16. above, for six (6) years
following the effective date of this Agreement or when the Prospective Developer takes title to
the Property, whichever date is later, unless otherwise agreed to in writing by the Parties. At the
end of six (6) years, the Prospective Developer shall notify DENR of the location of such
documents and shall provide DENR with ah opportunity to copy any documents at the expense
of DENR. To the extent DENR retains any copies of such documents, Prospective Developer
retains all rights it then may have to seek protection from disclosure of such documents as
confidential business information.
XIV. PAYMENT OF ENFORCEMENT COSTS
35. 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 DENR to enforce this Agreement
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
36. Unless otherwise required by DENR 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. forDENR:
Tracy Wahl
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
23
b. for Prospective Developer:
New Belgium Brewing Company
Attn: Nick Ampe, CHMM
500 Linden Street
Fort Collins, CO 80524
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. EFFECTIVEDATE
3 7. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving it, signed, from DENR. Prospective Developer shall sign the Agreement
within seven (7) days following such receipt.
XVII. TERMINATION OF CERTAIN PROVISIONS
38. 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
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
39. 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
24
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 DENR or any other person in relation to the Property.
40. 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 DENR
in writing no later than 60 days prior to the initiation of such suit or claim.
41. 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
DENR in \vriting within 10 days of service of the complaint on it.
XIX. PUBLIC COMMENT
42. 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
of the summary to each owner of property contiguous to the Property. After expiration of that
period, or following a public meeting ifDENR holds one pursuant to N.C.G.S. § 130A-
310.34(c), DENR 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.
25
Exhibit 2
The most recent environmental sampling at the Property reported in the Environmental
Reports occurred in November of 2012. 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 (µg/L)
Benzene HH-TW-ldup 3/22/2012 301 1.0
Naphthalene HH-TW-ldup 3/22/2012 108 6.0
n-Propylbenzene HH-TW-ldup 3/22/2012 80 70
Toluene HH-TW-ldup 3/22/2012 1520 600
1,2,4-HH-TW-ldup 3/22/2012 537 400
Trimethylbenzene
Xylenes HH-TW-ldup 3/22/2012 1730 500
1-Methylnaphthalene HH-TW-1 3/22/2012 14.9 1.0
2-Methylnaphthalene HH-TW-1 3/22/2012 38.4 30
Arsenic 1 MW-1 5/11/2011 20.1 10
HH-TW-7 3/23/2012 16.9
HH-TW-8 3/23/2012 11.0
Cadmium1 MW-1 5/11/2011 17.2 2
Chromium1 MW-1 5/11/2011 325 10
MW-2 5/11/2011 26.3
MW-4 5/11/2011 30.7
HH-TW-7 3/23/2012 60.2
1
HH-TW-8 3/23/2012 44.9
Lead1 MW-1 5/11/2011 90.6 15
MW-2 5/11/2011 16.5
HH-TW-7 3/23/2012 1,930
HH-TW-8 3/23/2012 32.7
Manganese1 MW-1 5/11/2011 6,520 50
MW-2 5/11/2011 3,840
MW-3 5/11/2011 578
MW-4 5/11/2011 601
MW-5 5/11/2011 577
HH-TW-3 3/23/2012 471
HH-TW-4 3/23/2012 275
HH-TW-7 3/23/2012 3,560
HH-TW-8 3/23/2012 2,020
Nickel1 MW-1 5/11/2011 133 100
z· i me HH-TW-7 3/23/2012 5,770 1,000
Notes:
1) Metals concentrations in groundwater may be naturally occurring.
2
Soil contaminants (in milligrams per kilogram, the equivalent of parts per million), the screening
levels for which are derived using the Preliminary Industrial Health-Based Soil Remediation
Goals of the Inactive Hazardous Sites Branch of DENR's Superfund Section (February 2013
version):
Soil Sample Depth Date of Maximum Industrial
Contaminant Location (ft) Maximum Concentration Screening
Concentration above Level1'2
Sampling Industrial Use (mg/kg)
Screening
Level
(mg/kg)
Benzo( a )pyrene HH-LSA-2 2-4 11/15/2012 1.66 0.21
NSW (4') 4 11/15/2012 0.667
HH-SB-23 1-3 3/22/2012 0.376
1HH-SB-7 29-31 3/20/2012 1.40
HH-SB-8 0-2 3/20/2012 0.333
HH-SB-10 0-2 3/20/2012 0.266
HH-SB-10 14-16 3/20/2012 0.884
Arsenic HW-SB-1 0-1 5/3/2011 2.3 1.6
HW-SB-2 1-1.5 5/3/2011 . 4.9
HW.-SB-3 0-1 5/3/2011 6.0
MW-3-SB-07 5-7 5/9/2011 2.5
HH-SB-3 1-2 3/19/2012 5.79
HH-SB-7 29-31 3/20/2012 7.66
HH-SB-27 0-2 3/22/2012 14.9
Lead HW-SB-2 1-1.5 5/3/2011 2,220 800
HH-SB-29 0-2 8/8/2012 962
'screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels displayed
for carcinogens are for a l .OE-6 lifetime incremental cancer risk.
3
EXHIBIT C
Description of Craven Street Property
Being a 19.81± acre tract of land within the City of Asheville, Buncombe County, North
Carolina and being more particularly described as follows:
Beginning on rebar with plastic cap stamped: "CIP AR-JN GLE" 0 .2 feet below the
asphalt and in the southern margin of Craven Street, being the northernmost comer of
property described as Tract 1 in Deed Book 4190, Page 963 of the Buncombe County
Register of Deeds Office, said rebar being located North 82°22'08" East 4775.62 feet
from North Carolina Geodetic Survey monument "Long John", having N.C. Grid,
NAD'83 (2007) coordinates of: N 687826.7379 feet and E 933277.7430 feet, said rebar
having N.C. Grid, NAD' 83 (2007) coordinates of: N 688460.80 feet and E 938010.12
feet, thence with said margin of Craven Street the following two courses and distances:
North 71°28'20" East 50.57 feet to a rebar 0.2 feet below the asphalt with plastic cap
stamped: "McMahan"; thence North 71°26' 16" East 64.37 feet to a nail set flush with
the surface of the asphalt; thence leaving said margin South 18°32' 49" East 28.12 feet to
a five-eighths inch rebar with plastic cap stamped: "ED HOLMES & ASSOC."; thence
North 71°26'24" East 60.90 feet to a point on the western bank of the French Broad
River; thence with said bank the following twenty-nine courses and distances: thence
South 62°30'00" East 23.67 feet to an unmarked point, hereinafter called: point;
thence South 20°02'41" East 68.97 feet to a point;
thence South 31°05'41" East 65.30 feet to a point;
thence South 36° 43 '40" East 18 .11 feet to a point;
thence South 22°55'28" East 45.65 feet to a point;
thence South 23°19'05" East 36.63 feet to a point;
thence South 28°24' 44" East 25.84 feet to a point;
thence South 28°52' 56" East 26.78 feet to a point;
thence South 18°18'38" West 10.22 feet to a point;
thence South 24°03'02" East 31.28 feet to a point;
thence South 36°12'44" East 30.70 feet to a rebar with plastic cap stamped: "CIPAR-
INGLE"; thence South 33°19'22" East 14.44 feet to a point;
thence South 24°57'51" East 39.40 feet to a point;
thence South 32°20' 13" East 50.31 feet to a point; .
thence South 21°49'03" East 51.58 feet to a point;
thence South 47°41 '53" East 33.37 feet to a point;
thence South 10°02'43" East 19.13 feet to a point;
thence South 36°55'04" East 87.93 feet to a point;
thence South 39°32'20" East 86.18 feet to .a point;
thence South 36°42'06" East 199.44 feet to a point;
thence South 41°0 l' 37" East 52.20 feet to a point;
thence South 27°24' 18" East 53.44 feet to a point;
thence South 49°16'37" East 69.28 feet to a point;
thence South 37°10'09" East 149.85 feet to a point;
thence South 24°37'38" East 65.39 feet to a point;
thence South 48°47' 45" East 45.89 feet to a point;
thence South 40°32' 10" East 38.27 feet to a point;
thence South 33°09' 40" East 117 .01 feet to a point;
thence South 33°3 l '39" East 71.24 feet to a rebar with plastic cap stamped:
"MORGAN'', hereinafter called: "Morgan rebar"; thence leaving said bank South
60°59'08" West 151.25 feet to nail in the eastern margin of Craven Street; thence with
said margin the following thirty-four courses and distances: North 43°17' 56" West 71.62
feet to a Morgan rebar; thence North 64°29'38" West 54.67 feet to a Morgan rebar;
thence North 89°21 '01" West 44.47 feet to a Morgan rebar;
thence South 81°45'02" West 41.16 feet to a Morgan rebar;
thence South 76°20'47"West 86.41 feet to aMorganrebar;
thence South 87°04'57" West 39.10 feet to a Morgan rebar;
thence North 79°46'29" West 43.57 feet to a rebar 0.3 feet below asphalt;
thence North 70°05'59" West 71.77 feet to a rebar 0.4 feet below asphalt;
North 65°51 '55" West 298.26 feet to a rebar 0.5 feet below asphalt, said rebar being
located South 83°46'51" East 5008.77 feet fromNorth Carolina Geodetic Survey
monument "Long John", previously mentioned, said rebar having N. C. Grid, NAD'83
(2007) coordinates of: N 687284.23 feet and E 938256.04 feet;
thence North 59°29'52" West 34.52 feet to a point;
thence North 52°45'27" West 40.04 feet to a point;
thence North 43°28'37" West 40.60 feet to a point;
thence North 37°36'00" West 27.86 feet to a point;
thence North 31°03'37" West 47.04 feet to a point;
thence North 26°51 '20" West 86.02 feet to a point;
thence Nmth 24°07'20" West 32.88 feet to a point;
thence North 29°45'01" West 53.81 feet to a point;
thence North 27°56'26" West 136.60 feet to a point;
thence North 33°14' 11" West 170.12 feet to a point;
thence North 34°13'20" West 172.42 feet to a point;
thence North 30°25'24" West 78.84 feet to a point;
thence North 26°48'33" West 17.36 feet to a point;
thence North 18°11 '05" West 43.13 feet to a point;
thence N01th 09°34' 15" West 30.61 feet to a point;
thence North 02°49'50" East 36.74 feet to a point;
thence North 09°33 '28" East 46.99 feet to a point;
thence North 16°20' 13" East 35.45 feet to a point;
thence North 19°58'42" East 27.98 feet to a point;
thence North 23°08' 53" East 29.61 feet to a point;
thence North 29°08' 19" East 40. 92 feet to a point;
thence No1th 30°54'44" East 26.05 feet to a point;
thence North 34 °26' 25" East 19. 68 feet to a point;
thence North 47°22' 46" East 29.53 feet to a point;
thence North 55°16'02" East 17.01 feet to a point;
thence North 71°23 '55" East 172.44 feet to the point and place of Beginning, containing
19.81 acres more or less.