20070776 Ver 1_More Info Received_20080313

I? WADETium 67-077?
March 12, 2008
401 Oversite/Express Review Permitting Unit 0 t'
NCDENR - Division of Water Quality
Parkview Building M A P 1 3 _, n!118
2321 Crabtree Boulevard, Suite 250
Raleigh, North Carolina 27604 DENR-WA1 r<uvALJ rr
WETLANDS AND STORMWATER BRANCH
Attention: Ms. Annette Lucas
Re: Waynesville Commons, Haywood County
Dear Ms. Lucas:
Enclosed herewith, please find our revised submittal for the storm water review. We have included
the following in our submittal:
1. Two sets of plans relative to the storm water management system,
2. One drawing exhibit indicating `drainage easements',
3. One drawing exhibit indicating soil boring locations,
4. One copy of the In-Situ Saturated Hydraulic Conductivity Testing,
5. Select copies of the soil boring logs including a boring summary exhibit,
6. A recorded copy of the Restriction Agreement and Grant of Easements (RAGE) for the
development,
7. Documentation on the sand filter pre-treatment devices including;
a. Fact sheet
b. Cut sheets on the specific `snouts' proposed on this project
c. A list of documented 3rd party performance
d. A list of references
e. A technical paper on `An Evaluation of Storm Drainage Inlet Devices for Stormwater
Quality Treatment'
f. Select copies of a power point presentation on the `Structural Restoration Practices:
A Collection of Successful Examples' prepared and presented by Fred S. Lubnow,
Ph.D., Director of Aquatic Programs, Princeton Hydro, LLC
In response to your email dated Friday, March 7, 2008, we offer the following additional comments:
A. You will note that the elevations of the soil borings have been corrected. The soil borings
were conducted prior to field survey work and the elevations indicated on the soil boring logs
were either derived from USGS maps or GPS. The new elevations marked in green represent
elevations derived after the field topography and is also the basis for our design elevations.
B. Sand Filter A is completely encapsulated with a PVC liner. Both sand filters contain
underdrains and a sand filter media conforming to AASHTO-M-6 or ASTM-C-33. We do
not have, or conducted infiltration rates for this specified material.
C. We have provided a construction sequence for the BMP's on Sheet C-3.8.
D. We have added a section view on Sheet C-3.8 indicating that the underdrain is to be sloped.
Wade Trim, Inc. 828.687.9500
1200 Ridgefield Boulevard 828.687.4090 fax
Suite 145 www.wadetrim.com
Asheville, NC 28806
Ms. Annette Lucas
March 12, 2008
Page 2
E. We have included clean-outs and a clean-out detail for the underdrains on Sheet C-3.8. The
clean-out for Sand Filter B is located in structure#26a.
F. Sand Filter A had one inlet not passing through a flow splitting device, drainage structure
#10. Drainage structure #9a is a junction box with a solid cover. We have clarified on Sheet
C-3.3, Storm Profile #2, that drainage structure #9a is to have a solid cover. We have added
an additional detail on Sheet C-3.8 indicating a bypass for drainage structure #10.
G. In the basin and sand filter notes located on Sheet C-3.8, we have specified a minimum 4-inch
layer of sand in the bottom of the infiltration basins.
H. We have correctly labeled the bypass structure detail on Sheet C-3.6.
If you have any further questions or comments, please contact us at 1.828.665.1288.
Sincerely,
WADE TRIM, INC.
Charles J. Christy, E
Associate
cjc
CDW2009-01 E
wteim:projectwise\DocumentsTand Development\Projects\Cdw2009\Ole\Docs\Storm Water\2008-State 401\Submittal Cover 2008-03-12
Enclosures
cc: Mr. David Scarnati, Cedarwood Development, Inc.

December 21, 2007
W adeTrim
P.O. Box 5602
Asheville, North Carolina 28813
Attention: Mr. Charles J. Christy, PE,
Associate
S&ME
J&@M81
MAR
1 3 2008 VVA ANDSANp "'IRMWATER BRMC
H
Reference: In-Situ Saturated Hydraulic Conductivity Testing -
Waynesville Town Center
Haywood County, N.C.
S&ME, Inc. Project No. 1413-07-096
Dear Mr. Christy:
S&ME, Inc (S&ME) has conducted in-situ saturated hydraulic conductivity testing per S&ME
Proposal No. CS-070-07D dated November 6, 2007. The above referenced work was approved
via email dated 12/6/07 and sent to Mr. Matthew McCurdy with S&ME. The referenced site is
located north of the intersection of Hyatt Creek Road and Main Street in Haywood County,
North Carolina (N.C.). The evaluation was performed to evaluate and assess in-situ saturated
hydraulic conductivity with regard to use of stormwater controls.
BACKGROUND
The site was visited by a S&ME Soil Scientist on December 10 and 13, 2007. Mr. Brett Fisher,
with WadeTrim was also present for the site visit on December 13, 2007. The referenced
property evaluated is located north of the intersection of Hyatt Creek Road and Main Street in
Waynesville, NC. The site was currently being graded for commercial development. There was
a designated trout stream at the western boundary of the site. S&ME was requested to perform
four in-situ saturated conductivity tests in two separate stormwater controls (Bio-Basin C and
Sediment Basin D) located on the site (2 per stormwater control site). S&ME was also requested
to collect soil texture samples at each location of the in-situ saturated conductivity tests. S&ME
also collected two soil samples for general soil fertility parameters within the stormwater
controls (1 per stormwater control). All testing was to be performed by S&ME after the
stormwater controls were at final grade elevations.
SWE, INC. / 3718 Old Battleground Road / Greensboro, NC 27410 / p 336.288.7180 f 336.288.8980 / www.smeinc.com
In-Situ Saturated Hydraulic Conductivity Testing S&ME Project No. 1413-07-096
Waynesville Town Center - Haywood County, N.C. December 21, 2007
On December 10, 2007, Mr. Martin Mabe with S&ME met with the site superintendent
representing Tri-C Construction (Tri-C). Mr. Mabe was informed by Tri-C that Bio-Basin C and
Sediment Basin D still required the removal of four feet of material from the existing grade at the
time of the first site visit. Upon inspection of Bio-Basin C, Mr. Mabe noted that 2/3 of the entire
basin was either submerged or totally saturated. Mr. Mabe attemped to advance four hand auger
borings within Bio-Basin C, but encountered auger refusal at depths less than 18" due to the
large amount of rock and construction debris in the soils. The decision was made to return at a
later date to perform the required testing on Bio-Basin C. Sediment Basin D was then inspected
and found to only contain approximately 1/3 of the area either submerged or totally saturated.
11r1r. Mabe made the decision to proceed with the in-situ saturated hydraulic conductivity tests in
Sediment Basin D and collect the samples for soil textural analyses and general soil fertility in
this location.
On December 13, 2007 Mr. Mabe returned to the site to meet with Mr. Fisher and Mr. Gale
Cook, newly appointed Grading Superintendent of Tri-C. Upon inspection of Bio-Basin C, Mr.
Mabe noted that 2/3 of the entire basin was either submerged or total saturated as noted on
December 10, 2007. The decision was made by Mr. Mabe and Mr. Fisher to dig pits with a track
hoe within and closely adjacent to existing Bio-Basin C (Figures 1-3). After the pits were
described, Mr. Mabe proceeded with the in-situ saturated conductivity tests in Bio-Basin C and
collected the samples for soil textural analyses and general soil fertility.
METHODS AND PROCEDURES
The evaluation was conducted to assess the in-situ saturated hydraulic conductivity with regard
to stormwater controls. The type of stormwater control had not been determined at the time of
the testing. The evaluation consisted of review of subsurface soils observed by hand auger
borings/pits at select locations across Bio-Basin C and Sediment Basin D (Figures 1-3). Four in-
situ saturated hydraulic conductivity tests were also performed (2 in-situ saturated hydraulic
conductivity tests per basin).
RESULTS AND DISCUSSION
Hand Auger Borings/Pits
Two hand auger borings and three pits were advanced to an approximate depth of 4 to 10 feet,
and described to generally evaluate soils within Bio-Basin C and Sediment Basin D. The
locations of the hand auger borings have been approximately shown on Figures 2 and 3 (See
attached Soil Profile Descriptions). Four hand auger borings were performed in Bio-Basin C
ranging in depth from 6" to 18" and were not described. These four hand auger borings
encountered auger refusal due to the large amount of cobbles, asphalt, conduit, rebar, and scrap
metal encountered in the fill material that Bio-Basin C was constructed within.
In-Situ Saturated Hydraulic Conductivity Testing S&ME Project No. 1413-07-096
Waynesville Town Center - Haywood County, N.C. December 21, 2007
Hand auger borings 1 and 2 were performed in Sediment Basin D on December 10, 2007 and
indicated that the basin was constructed within native soil material. Pits 1 through 3 were
performed on December 13, 2007, either within, or closely adjacent to Bio-Basin C (due to the
fact that 2/3 of the basin was either submerged or completely saturated). Fill material was
encountered in all three pits ranging in depths from 20" to 105". This fill material was followed
by a soil horizon of sandy loam texture that ranged from 8" to 33" before encountering the actual
water table. A seasonal high water table was encountered in Pit 3 at a depth of 21" below
existing grade at the time of the evaluation.
Hydraulic Conductivity Tests (Ksats)
In-situ saturated hydraulic conductivity tests were performed in three locations with compact
constant head permeameters (echp) (Figures 2 and 3). The locations selected for the in-situ
saturated hydraulic conductivity measurements were within Bio-Basin C and Sediment Basin D.
The in-situ saturated hydraulic conductivity measurements performed in Bio-Basin C occurred
within fill material at 18 inches below existing grade. The in-situ saturated hydraulic
conductivity measurements performed in Sediment Basin D occurred within the BC and C
horizons at 48 inches below existing grade.
The in-situ saturated hydraulic conductivity values were calculated based on field measurements
using the Glover Equation. Saturated hydraulic conductivity measurements ranged from 18.84 to
122.84 gallons per day per square foot (gpd/ft2 ) or 1.26 to 8.21 inches/hour (Appendix I).
Table 1 summarizes the in-situ saturated hydraulic conductivity measurements for each location
and includes: location, depth and horizon, corresponding soil profile description number,
hydraulic conductivity method used, soil texture, and conductivity measurement of each location.
Table 1: In-Situ Saturated Hydraulic Conductivity Measurements
Waynesville Town Center - Waynesville, NC
Corresponding
I
l Result
Descri tion No. De th/Horizon KsatLocation Method Soil Texture* 1 1 (gpd/ft2) (in/hr)
Pit 1 18"/C (Fill Material) Bio-Basin C cch sand loam 106.46 7.12
Pit 1 18"/C (Fill Material Bio-Basin C cch sand loam 122.84 8.21

HAB 1
48" / C Sediment Basin
D
cch
sandy loam
20.47
1.37

HAB 2
48" / BC Sediment Basin
D
cch
sand cla loam
18.84
1.26
*Note: Soil Textural Analysis was perfromed by A&L Easterns Labs, Richmond, VA
In-Situ Saturated Hydraulic Conductivity Testing
Waynesville Town Center - Haywood County, N.C.
S&ME Project No. 1413-07-096
December 21, 2007
Based upon the extremely high measurements in Pit 1, S&ME recommends that any engineering
calculations for Bio-Basin C be based upon the geometric mean of the results encountered in
hand auger boring locations 1 and 2 (Sediment Basin D). S&ME has concerns about the
extremely high results encountered within Bio-Basin C, the proximity to the actual water table,
and the proximity to the adjacent trout stream. Each of these conditions should be considered in
association with the final design of this basin.
Soil Analysis Overview
Representative soil samples were collected from areas within Bio-Basin C and Sediment Basin D
using a 0.75" diameter stainless steel soil probe. Samples were collected from the upper 4 to 6
inches (surface). Surface soil samples consisted of grab samples throughout the referenced areas
to comprise a composite sample for testing. Soil samples were submitted to A&L Eastern
Agricultural Laboratories, Inc. (Appendix II - Soil Analysis Reports) for standard soil fertility
testing to include: % organic matter, estimated nitrogen release, phosphorus, potassium,
magnesium, calcium, pH, acidity, cation exchange capacity, percent base saturation, and other
standard soil fertility parameters for surface soil samples.
Based upon soil test results, the pH of the surface soils ranges from 5.2 to 7.6 standard units.
Nutrient levels range from medium to very low. The pH of Bio-Basin C appears to be
abnormally high and is of concern to S&ME coupled with the fill material encountered in this
area. The following table summarizes pH, cation exchange capacity (CEC), and macro-nutrient
levels:
Table 2: Soil Test Results - Surface (0 to
Bio-Basin C 7.6 12.1 51 L 43 111
Sediment 5.2 1.9 9 (VL) 9 (VL) 55 (L)
Basin D
CEC - Cation Exchange Capacity VL - Very Low
ENR - Estimated Nitrogen Release L - Low
P - Available Phosphorus M - Medium
K - Potassium H - High
VH - Very High
If either of these areas are to be planted with vegetation in the future, a well balanced
commercial fertilizer is recommended in order to increase the nutrient levels of nitrogen,
phosphorus and potassium. It is also recommended that dolomitic limestone be added to
Sediment Basin D in order to increase the pH to 6.0 standard units.
In-Situ Saturated Hydraulic Conductivity Testing S&ME Project No. 1413-07-096
Waynesville Town Center - Haywood County, N.C. December 21, 2007
CLOSING AND SUMMARY
S&ME appreciates the opportunity to provide in-situ saturated hydraulic conductivity testing for
you. If you have any questions or comments or require additional information please contact us
at your convenience.
Sincerely,
S&ME, Inc.
Martin Mabe
Project Manager/Agronomist
Figures
Figure 1: Site Map
Figure 2: Bio-Basin C
Figure 3: Sediment Basin D
Attachments:

Rob Willcox, L.S.S.
Natural Resources Department Manager
I In-Situ Saturated Hydraulic Conductivity Test Results
II Soil Analysis Reports
III Soil Profile Descriptions
5
FIGURES
ATTACHMENTS
IN-SITU SATURATED HYDRAULIC CONDUCTIVITY TEST RESULTS
SOILS- ANALYSIS REPORTS
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S&ME, INC.
SITE/SOIL EVALUATION
Project No. )f j3-_9)°-_Ves Phone No. Date: 12-,SID iD7
Location ,,ra `LUG a? Pill County:
: Property Size
?-
Proposed Facility:, Water Supply: On-Site Well ? Evaluation: Auger Boring
Community ? Pit ?
Public ? Cut ?
Weather: Antecedent Moisture Surface Water:
FACTORS PROFILE y PROFILE PROFILE PROFILE
Landscape Position % LEGEND
Horizon Depth I
d
LANDSCAPE POSITIQ
Color Munsell R Ridge Interfluve
Texture S Shoulder
Structure S L Linear Slope
Consistence S Foot Slope
N Nose Slope
H Head Slope
Boundary Cc Conclave Slope
Horizon Depth II Cv Convex Slope
Color - Munsell T Terrace
Texture P Flood Plain
Mottles PiAA, 64A TEXTURE
Structure ,SS4 ?d s sand
Consistence , iti 19 Loamy sand
Si sandy loam
I loan
Boundary si silt
Horizon Depth III sit silt loam
Color - Munsell Act silty clay loam
Texture cl clay loam
Mottles set sandy clay loam
Structure sc sandy clay
Consistence sic silty clay
c clay
CONSISTENCE WF,T
Boundary Ns non-sticky
Horizoq Depth IV Ss slightly sticky
Color - Munsell S sticky
Texture Vs very sticky
Mottles
_Sisucfdre Np non-plastic
Consistence Sp slightly plastic
P plastic
Vp very plastic
Boundary MOIST
Soil Wetness vfr Very friable
Restrictive Horizon fr friable
Saprolitc >! a fr firm
LTAR vfi Very firm
Classification STRUCTURE
sg single grain
m massive
V
cr crumb
gr granular
sab subangular blocky
ab angular blocky
pl platy
pr prismatic
• S&ME, INC.
SITE/SOIL EVALUATION
Project No. M13-107-011o Phone No. Date:
Location `T-tk Pin County: Property Size
Proposed Facility: 10T3id-, ?„. Water Supply: On-Site Well ? Evaluation: Auger Boring ?
Community ? Pit 5a
Public ? Cut ?
Weather: Antecedent Moisture Surface Water:
FACTORS PROFILE PROFILE 2 PROFILE 3 PROFILE
Landscape Position % LEGEND
Horizon Depth I LANDSCAPE POSITI(
Color Munsell f 0,4.111., R Ridge Interfluve
Texture A r e- )es S Shoulder
Structure L Linear Slope
Consistence S Foot Slope
N Nose Slope
H Head Slope
Boundary Cc Concave Slope
Horizon Depth If Cv Convex Slope
Color - Munsell ?¢ ,( l T Terrace
Texture , ..: P Flood Plain
Mottles !r ?S -- TEXTURE
Structure s s sand
Consistence IO Is Loamy sand
sl sandy loam
I loam
Boundary si silt
Horizon Depth III 19L 1- 0 sil silt loam
Color- Munsell N ILL k yr r sicl silty clay loam
Texture f cl clay loam
Mottles sel sandy clay loam
Structure II Lr! 6 se sandy clay
Consistence sic siltyclay
c clay
CONSISTENCE WET
Boundary Ns non-sticky
Horizon Depth IV 7- Ss slightly sticky
Color - Munsell S sticky
Texture Vs very sticky
Mottles /,,,r as
-Structure Np non-plastic
Consistence Sp slightly plastic
P plastic
Vp very plastic
Boundary MOIST
Soil Wetness 3iH ItJT ?? vfr Very friable
Restrictive Horizon fir friable
Saprolite fi firm
LTAR (p„ 1,5 g,a .. vft Very firm
Classification STRUCPURE
j f z0 sg single grain
'? 02 m massive
N
cr crumb
gr granular
sab subangular blocky
ab angular blocky
PI platy
pr prismatic
Z BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-1586.
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
t WATER LEVEL IS AT 77ME OF EXPLORATION AND MU VARY.
Page I of 1
cm 0 ME
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
NUTES:
1. THIS LOG IS ONLYA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER MTN THAT REPORT.

PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 40
S3ME Project No. 141146475
DATE DRILLED: 813106 ELEVATION: v sal' , :775-.7.3 NOTES:
.
DRILLING METHOD: 3'/." H.SA. BORING DEPTH: 10.0 ?
' ' .30
LOGGED BY: MHM WATER LEVEL 7.5 TO8, 4
24 RS
DRILLER: OAKES] WAGNER DRILL RIG: Diedrich D-50
U
z u7 0 Z STANDARD PENETRATION TEST DATA
a o MATERIAL DESCRIPTION a m
> Uj w (bbwsM)
o,, , m ?
w a a >
a
3 w
v7
10 20 30 6080
ASPHALT
CRUSHED STONE
ALLUVIUM: Loose to medium dense, wet, gray, 1 14
silty fine to coarse SAND (ML) with gravel
1
5 27K 2 20
3 7
V
-------------------------
ALLUVIUM: Very dense, wet, gray, silty fine to 501
10 medium SAND (SM) with some gravel 27 ?/ a 11 > a"
Boring Terminated @ 10' ?D +H?
NyIC4:
i. THIS LOG 1S ONLYA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
2. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE MTN ASTM D-I U&
2. STRA77RCATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND MU VARY.
Page 1 of 1
eo"le
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
.
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 39
SWE Project No. 1411-0647S
DATE DRILLED: 8006 ELEVATION: ?7s3.3 NOTES: CAVED AT 4.9'
?Q
?
'
-7vr
DRILLING METHOD: 3%" H.S.A. BORING DEPTH: 10.0
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKES/ WAGNER DRILL RtG: Diedrich D-SO
U p g STANDARD PENETRATION TEST DATA ui
MATERIAL DESCRIPTION a
o (blows/ft)

a

w 2
?Q >

z
rb 10 20 30 6080
ASPHALT
CRUSHED STONE
FILL: Loose, very moist, brown, silty fine SAND 1 s
SSMIwithtraceofGay______________
FILL: Dense, brown, silty fine SAND (SM) with
5 trace of gravel and coal
H
--? 27 a

?
o
2
42
,
.
ALLUVIUM: Dense, very moist, tan and brown,
silty fine to coarse SAND (SM) with gravel 3 31
10 27 0
4
40
Boring Terminated @ 19 ,z? 5 3 D
Iyu l Cam:
f. THIS LOG IS ONLYA PORTION OFA REPORTPREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
Z BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM &1W&
S. STRA77RCA77ONAND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 9 of 1
eo"le
OWN&
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
i, THIS LOG IS ONLYA
PROJECT AND MUSTPONLY BE USED TEPREPARED R ?? ?THE r`?C
? BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTMO.lW6.
?. STRATIFICAflON AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
MEWAL SERVI
ENARON C 5
No : rage I UI I
PROJECT: WAYNESVILLE TOWN CENTER BORING LOG 77
WAYNESVILLE, NC
SWE Project No.1411-06-075

55
4
N NOTES: CAVED AT 14.5
DATE DRILLED: 819106 .
: 27
ELEVATIO

DRILLING METHOD: U." H.S.A. BORING DEPTH: 22.5

LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED

DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich b-50
J . W
> 0
STANDARD PENETRATION TEST DATA W
m o MATERIAL DESCRIPTION > o
W v o) >
O J W Z
3 w 10 20 30 6080

CONCRETE
FILL: Firm to StIft, brown and gray, fine sandy 8
SILT (ML) with a trace of day and mica
2 8
5 2750.0-
3 13
--------- ----------------
FILL: Stiff, tan and brown, fine sandy SILT (ML)

'
9
with a trace of mica 4
2745.0
? 0
HC 5 8
15 2740.0
ALLUVIUM: Very dense, wet, tan and gray, silty 501
fine to coarse SAND (SM) with gravel 6 1"
2735.0
20

Auger Refusal 22.6
NOTES.
1. 7NIS LOG IS ONLYA PORTION OF AREPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER MTN THAT REPORT.
2. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-158&
2. S TRA TIRCA 77ON AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WA TER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 Of 9
ea?
4W TM
ENS ONMENWAL SERVICES
Q 745
14-i ?__
o
"T.
125-0 0 -
a . WELL
Z
•
F.B
;s,
1 I 26 ?
?A it i X3.0 311?,? till]
0
`" eos
22 I
??j ?0 ? Ill ? ?,
??NO 7 ?I i 3 9
? v 3 3
?'
? III i ?,? T?8
4 d
lilt 16,/ 2 1 1 1 1; - ?,
i l i l t 137 S
Il it r 38 s
l i l t! 3 3 ?'
J 2FT' -1
61
I I! I; 62 3 a
-a s
/2 ti c S ' ?NR' 63 64 t i l l
V
v ---
®? 1 v
43 s
I - -P3FT-L \ c s -e_ C
82
THIS S AREA ALL 84 - 85
2769.25
0
9g J
?- 100
b IIII LI11 I l
--?-?.-------- N .--? IIIf`I-111? 1031
T -?1 I I I I ?IIL?1:11I1?,1 ?l
1111_.?.I I I I ll;l I II
z ?o ,
1 1 7
STO??M ?QUNDATI0N' DRAIN 1 8 -? 1-2?
.HT ?F-4JAY 'F? Ac

Comments:
Cobbles generally consisted of particle sizes up to about six inches in
diameter. However, occasional particles were up to about one or two feet.
dt-Vana E/e_,ol' 27525D
TP-9 0 0.3 Crushed stone
0.3 0.7 Asphalt
0.7 4 Fill - Very moist to wet, tan, orange-brown
and
,
gray, fine sandy silt with small rocks (some metal
debris at 3 to 4 feet
4 6 Alluvium - Soft, wet, gray, clayey silt with sand and
organics
6 8 Alluvium - Wet, gray, silty fine to coarse sand with
avel and cobbles
8 Test pit terminated
Groundwater encountered at 7 feet ;E74#1.526

l V1.1"JIMLIM
Cobbles generally consisted of particle sizes up to about six inches in
diameter. However, occasional particles were up to about one or two feet.
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILL.E, NC BORING LOG '11
SBME Project No. 1411-06-078
So
: ;? V NOTES:
DATE DRILLED: 8/16/06 o.
ELEVATION
DRILLING METHOD: OAKES/ WAGNER BORING DEPTH: 10.0
LOGGED BY: MHM WATER LEVEL: 8.1' 24HRS 1 ?7. 0
DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich D-50
w Z
o w
STANDARD PENETRATION TEST DATA
w
o a MATERIAL DESCRIPTION a a (bbwsm)
zt,
w
w

Z
c7 3
W
10 20 30 60,8.0.
CONCRETE
CRUSHED STONE
ALLUVIUM: Dense to very dense, tan, brown, 1 31
and gray, silty fine to coarse SAND (SM) with
some gravel
2 38
5 2752.0-
3 60
1

4

'l

i 50/

t 5.,
10 2747.0
Auger Refusal @ 19
NOTES;
i. THIS LOG, IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
2. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE MTN ASTM D-159&
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
t WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of 1
*S&ME
ENGINEERING SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 16
S&ME Project No. 1411-06-075
`L??
i L • i ® NOTES: CAVED AT 6'
DATE DRILLED: 8118106 j
ELEVATION:
DRILLING METHOD: 3Y:' H.S.A. BORING DEPTH: 8.0
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich D-50
U zz z iL STANDARD PENETRATION TEST DATA

9?
o
(L °o
MATERIAL DESCRIPTION
>
a a
t?01AfI
o J v d'
$ 2
W d
vai 10 20 30 8080
CONCRETE
CRUSHED STONE
ALLUVIUM: Very dense, gray and brown, silty 62
fine to coarse SAND (SM) with cobbles and
gravel (wet from 5 to 8 feet)
2 83
5 2752.0

3 52
Auger Refusal c@@ 8' 11 IM 8
N T
1. THIS LOG IS ONLYA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLYBE USED TOGETHER WITH THAT REPORT.
t. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM 61588.
s. STRA7IRCA77ON AND GROUNDWATER DEPTHS ARE NOT EXACT:
i. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of I
# 0
S&ME
ENVIVItR?ON ENS4L SESRV CES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 21
::7
7
S ME Project No. 1411-06-075

DATE DRILLED: 81W6
ELEVATION:Ped

ZT S? , O NOTES: BOREHOLE CAVED IN AT 7.2'
DRILLING METHOD: 3Y4" H.S.A. BORING DEPTH: 12.0
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich 0-60
U p STANDARD PENETRATION TEST DATA w
3
W a.
o MATERIAL DESCRIPTION i a a (b )
Q ?.
--
w
a
9 10 20 30 . 60 80
FILL: Very stiff, brown and gray, fine sandy SILT 1 17
(ML) with trace of clay and some hardened
petroleum product or coal
FILL: Medium dense, brown and tan, silty fine to 2 30
5 coarse SAND (SM) with trace of gravel and 2761.
hardened petroleum product HC 3 18
-------------------------
FILL: Very dense, brown and gray, silty fine to 50/
coarse SAND (SM) with some gravel and trace of 4
10 hardened petroleum product 2756.0 3"
Auger Refusal @ 12'
Ivv I ts:
I. THIS LOG IS ONLYA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER MM THAT REPORT.
Z BORING, SAMPLING AND PENETRATJON TEST DATA IN GENERAL
ACCORDANCE IMM ASTMDQ10t
3. STRATIFICA71ON AND GROUNDWATER DEPTHS ARE NOT EXACT.
A. WATER LEVEL IS AT TIME OF EXPLORATION AND MLL VARY.
Page 1 of 1
eomie
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 21-A
S3ME Project No. 1411-06-075
NOTES: BORING DRILLED WITH CASING
BATE DRILLED: 8122/08 ELEVATION: 2765.0 ADVANCER ABOUT 26' SOUTH OF BORING
DRILLING METHOD: 3%" H.S.A. BORING DEPTH: 38.5 21
LOGGED BY: MHM WATER LEVEL: 34' TOB Z?3(.O
DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich 0-50
U p Z STANDARD PENETRATION TEST DATA ut
w a MATERIAL DESCRIPTION a W (blows/ft) Q
p w W..
J 2n. >
2
W 10 20 30 .61018.0.
ASPHALT
CRUSHED STONE
Fill: No samples obtained
5 2760
0
.
10 2755
0
.
15
2750.0
FILL: Very dense, wet, gray, silty tine to coarse

SAND (SM) with gravel (metal in Sample No. 1) 1 105
flf,y i.V7 :e:G: +; .. fF,2?.' ibt`L!i.?:t?il.^w1r... ..11:?+.i-'. c+VS>?ZC11v'dZP/LJa,lliSti4}l '... YFfu^:Wt1.f ?C.i. ` '' .r. .A.iA{? Y ?.' iry. Yy?i4.._ 3W-WK ..
2 55
25 RESIDUUM: Stiff to very stiff, wet, orange-brown
2740
0
and tan, fine sandy SILT (ML) with a trace of mica .
3 16
c?
w

iL i
a
30
2
735
0
.
4 14
RESIDUUM: Dense, wet, gray, silty fine SAND SL I N11111LI
(SM) with rode pieces J
lKOTES.
1. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED Page 1 Of 2
PROJECT AND MUST ONLY SE USED TOGETHER WITH THAT REPORT.
Z WRING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D•1580.
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
t WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY. *SM
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES

PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 21-A
$& IE Project No. 1411-06.OTS
NOTES: BORING DRILLED WITH CASING
DATE DRILLED: 8122106 ELEVATION: 2766.0 ADVANCER ABOUT 26' SOUTH OF BORING

DRILLING METHOD: 31/4** H.S.A. BORING DEPTH: 38.6 21
LOGGED BY: MHM WATER LEVEL: 34'@TOB
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich 0-80
V
w zz Z a- STANDARD PENETRATION TEST DATA
a a o MATERIAL DESCRIPTION g a tbloavslR)
1- j Z
w 10 20 30 6080
5 36
PARTIALLY WEATHERED ROCK: No sample
obtained
Boring Terminated @ 38.5'
NOTES
1. THIS LOG IS ONLYA PORTION OFA REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
Z. BORING. SAMPLNVG AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-168s.
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
k WATER LEVEL IS AT TIM OF EXPLORATION AND WILL VARY.
Page 2 of 2
*9=
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 22
S&ME Project No. 1411-06-075
DATE DRILLED: 8/2106 ELEVATION: p8d 27?j 3.3D NOTES:
DRILLING METHOD: 3%" H.S.A. BORING DEPTH: 8.0
1
*
LOGGED BY: MHM WATER LEVEL: 7.8 T S, 4
2
RS
DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich D-50
C) 0 Z STANDARD PENETRATION TEST DATA
¢ o MATERIAL DESCRIPTION _j a (bfowsltt)
o z
a
3 w 10 20 30 6080
CRUSHED STONE
ALLUVIUM: Firm to stiff, wet, brown, fine sandy
SILT (ML) with some clay 9
T
2
8
5 2750.0
ALLUVIUM: Very loose, wet, gray, silty fine 3 3
SAND (SM) with organic staining Q
y
Auger Refusal @ 8' Z ??f5.30
NOTES:
r. THIS LOG IS ONLY A PORTION OFA REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLYOE USED TOGETHER WITH THAT REPORT.
]. BORING, SAMPUNO AND PENETRA17ON TEST DATA NM GENERAL
ACCORDANCE MTN ASTM D6168&
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of 1
Co?
ENGINEERING - TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC
S&ME Project No. 1411-06475
DATE DRILLED: 8118106 ELEVATION: Per 1 S ?. Qb
DRILLING METHOD: 3Y:' H.S.A. BORING DEPTH: 12.0
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich D-50
x
O
Z
W o MATERIAL DESCRIPTION _
Q
= a Uj

~ Uj a
3 w <
ALLUVIUM: Medium dense, very moist, brown, 1
silti fine SANDjSM, with some rock fragments
ALLUVIUM: Very dense, tan and gray, silty fine
to coarse SAND (SM) with some gravel 2
5 2752.0-
3
4
10 2747.0
Auger Refusal @ 12' Z? t*. g'b
BORING LOG 23
TES: CAVED AT 7.5'
STANDARD PENETRATION TEST DATA w
(blows/ft)
Z
21 f
60 1
501
4"
50/
1"
NOTES:
1. THIS LOG IS ONLYA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY HE USED TOGETHER WITH THAT REPORT,
2. GORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-1680.
s. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
/_ WATER LEVEL IS AT 77ME OF EXPLORATION AND WILL VARY.
Page 1 of 1
*S&ME
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
lnvr Cx
f. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
i. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM &I U&
I STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
A WATER LEVEL IS AT 77ME OF VPLORA77ON AND WILL VARY
Page J of 1
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 25
SBME Project No. 101-06-075
DATE DRILLED: 818106
b
ELEVATION: 2 NOTES:
DRILLING METHOD: 3Y." H.S.A. BORING DEPTH: 10.0
LOGGED BY: MHM WATER LEVEL: 7.1024 RS VON
DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich D-50
U W a Z (L STANDARD PENETRATION TEST DATA
v
a d x
a
MATERIAL DESCRIPTION
rr <
a w w
W (bfowslfl) -?
y
W J a w Y a
Q z
10 20 30 .6.0.8.0. ,
ASPHALT
CRUSHED STONE: with sail
1
ALLUVIUM: Very dense, gray and brown, silty 1 5
fine to coarse SAND fSMZwith rock fragments
_
ALLUVIUM: Medium dense, gray and tan, silty
fine to coarse SAND (SM) with trace of grave( 2 i 21
5
_ 2742.0
ALLUVIUM: Very dense, tan and gray, silty fine 1 3 51
to coarse SAND (SM) with gravel
4 78
10 2737.0
Boring Terminated @ 19 Z? 31-0
:
NOTES
f. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
Z BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D•0886.
1. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of 1
COME
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 26
SSME Project No. 1411-06-075
'
NOTES: CAVED AT 14
DATE DRILLED: 8116106 ELEVATION: 2

DRILLING METHOD: 3Y." H.S.A. BORING DEPTH: 23.0

LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED

DRILLER: OAKES/ WAGNER DRILL RIG: Dledrich D-50

v ?
>
Zz w
i 0.
STANDARD PENETRATION TEST DATA
s g
o. o
MATERIAL DESCRIPTION
w r= w
-j a btowsift)
{ Q
w z
3 10 20 30 61018.0.
CONCRETE
CRUSHED STONE
is
FILL: Loose to medium dense, moist to very 1
moist, tan and brown, silty fine to coarse SAND
(SM) (no recovery of sample No. 5)
2 as
5 2756.0-
3 s 25
4 23
10 2751.0
HC
_ 5 ' 10
15 2746-0-
-------------------------
silty _
ra
tan and
e
wet
V
d
VIUM
6
73
y,
g
,
ens
,
ery
:
ALLU 2741.0
20- fine to coarse SAND (SM) with o trace of gravel
Auger Refusal @ 23' 271I I35
N r S•
i. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MOST ONLY BE USED TOGETHER W TH THAT REPORT.
t BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM 0•1688.
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of i
ENGINEERING . TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 31
S&ME Project No. 1411-06-075
DATE DRILLED: 818/08 ELEVATION: NOTES:
DRILLING METHOD: 3'/." H.S.A. BORING DEPTH: 20.0
LOGGED BY: MHM WATER LEVE ? 8. '@T08, 8'@24H RS
DRILLER: OAKESI WAGNER DRILL RIG: Dledrfch D-60
> O g STANDARD PENETRATION TEST DATA LLJ
I-
m a p MATERIAL DESCRIPTION x Q =
0) UJ
_J a
?
tb1ot" I
_
... J W v -
0. Z
71 W N 1. 20 30 6080
ASPHALT
CRUSHED STONE: with soil
ALLUVIUM: Loose, very moist to wet, brown and 1 9
tan, silty fine to medium SAND (SM) with trace of
gravel i
2 9
5
- - - - - - - - - - - - - - - - - - - - - 2746.0
ALLUVIUM: Dense to very dense, wet, brown 3 36
and gray, silty fine to coarse SAND (SM) with
gravel _
4
501
5
10 2741.0
RESIDUUM: Firm to stiff, wet, tan, fine sandy

? SILT (ML) with trace of mica 5 ` Ile 8
15 2736.

'
t ?
g
10
20- - 2731.0
Boring Terminated @ 20' Z1 f, ?0
NO S:
f. THIS LOG IS ONLYA PORTION OFA REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY 8E USED TOGETHER WITM THAT REPORT.
Z. BORING. SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-1690.
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of 9
*S&ME
ENNVIIRONMEWAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 32
SbME Project No. 1411-06-076
DATE DRILLED: 818106 ELEVATION: 276" ?-7;(4-50 NOTES:
DRILLING METHOD: 3%" H.S.A. BORING DEPTH: 30.0
LOGGED BY: MHM WATER LEVEL: 17.1'@24HRS q-7 379(0
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich 0-50
s 0 Z 0 0. STANDARD PENETRATION TEST DATA
o MATERIAL DESCRIPTION M 0 a J (biow5lR) a
o
C7 W W a

x
W 10 20 30 60 80
1 . ,1
ASPHALT
CRUSHED STONE: with soil
FILL: Loose to medium dense, tan, silty fine 1 12
SAND (SM)
2 5
5 2748.0
FILL: Very stiff, brown, fine sandy SILT (ML) with 3
> 17
trace of clay and hardened petroleum product
- - - - - - - - - - - - - - - - - -
FILL: Finn, wet, tan, fine sandy SILT (MH) with
clay 4 5
10 2743.0
ALLUVIUM: Medium dense to dense, wet, tan
and gray, silty fine to coarse SAND (SM) with
5 46
15 2738.0
1
6 26
20 2733.0
11 RESIDUUM: Firm, wet, tan and brown,
25 micaceous fine sandy SILT (ML) 2728.0 7 ' 8
RESIDUUM: Medium dense, brown, silty fine
r SAND (SM) with trace of mica
8 0
30 2723.0
Boring Terminated @ 20' 7,7$q.50
VOTES:
1. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLYBE USED TOGETHER WITH THAT REPORT.
1, BORING, SAMPUNG AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITHASTM 0.1586.
1. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of ?
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
NOTES:
f. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
7. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITHASTM D•7b8A.
J. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND MU VARY.
Page 1 of 1
eomie
ENGINEERING - TESTING
ENVIRONMENTAL SERVICES
NOTES:
1. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
1. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM 0.158&
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
a WATER LEVEL IS AT TIME OFEXPLORAT70N AND WILL VARY.
Page 1 of 1
dlo"Lu
ENGINEERING • TESTING
ENVIRONMEWAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 41
S&ME Project No. 1411-06-075
DATE DRILLED: 812108 ELEVATION: 2 Al 1,b NOTES:
DRILLING METHOD: 3%" H.S.A. BORING DEPTH: 10.0
T
LOGGED BY: MHNI WATER LEVEL: 8. Vb
s, 6.1'? HRS
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich D-50
U W p Z CL STANDARD PENETRATION TEST DATA
MATERIAL DESCRIPTION a g a W (blows/ft) a
w a z
t!f 10 20 30 6080
CRUSHED STONE
FILL: Medium dense, brown and gray, gravelly,
silty fine to coarse SAND (SM) (several small 1 21
pieces of rubber)

2
- 2 ± 23
5 749.0
--- - - - - - - - - - - - - - - - - - - - - - - - - 1
ALLUVIUM: Loose to medium dense, very moist 3 7
to wet, gray and brown, silty fine to medium SAND
(SM) with rock fragments -
4 20
10 2744.0
Boring Terminated @ IV 214 2 . ®
NO S
1. THIS LOG IS ONLYA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WI7H THAT REPORT.
E BORING. SAMPLING AND PENETRA770M TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-168C
a STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY,
Page 1 of 9
eo?
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 42
SAME Project No. 1411-06-078

DATE DRILLED: 812106
ELEVATION: 2253:6- '
NOTES: CAVED AT $
DRILLING METHOD: 3'/:' H.S.A. BORING DEPTH: 10.0
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKES/ WAGNER DRILL RIG: Medrich 0-50

U J
>
w
z ?J
0 (L
STANDARD PENETRATION TEST DATA
o. o MATERIAL DESCRIPTION W > w a. 0. (blows/fi) >
o J Z. M z
¢
3 w 10 20 30 16.0.8.0 .
CONCRETE
FILL: Medium dense to dense, very moist, brown,
silty fine to coarse SAND (SM) with rock 1 ' 38
fragments
2 16
5 2748.0
- - - - - - - - - - - - - - - - - - - - - - - - - -
ALLUVIUM: Medium dense to dense, very moist,
3
21
silty fine to coarse SAND (SM) with gravel HC

4 57
10 2743.0
Boring Terminated @ 10' Z' LE (, Q
NOTES:
i. THIS LOG IS ONLYA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
2. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-158&
7. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of 1
eo"r
ENGINEERING - TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 61
S3ME Project No. 1411-06475
DATE DRILLED: 8118106 ELEVATION: 27?j G.Q? NOTES:
DRILLING METHOD: 3% " H.S.A. BORING DEPTH: 5.5 1Zrjl. 3
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich D-50
U > p Z STANDARD PENETRATION TEST DATA LU
o MATERIAL DESCRIPTION w w CL a (blows/ft) 1
1
v >
Z
3 w 10 20 30 6080
ALLUVIUM: Very dense, tan and gray, silty fine
to coarse SAND (SM) with gravel
112
2
Auger Refusal @ 5.5' 2.751.3
55
501
2"
NOTES:
1. THIS LOG 1S ONLYA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONL Y SE USED TOGETHER WITH THAT REPORT.
z. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-1888.
2. STRATIFICATION AND GROUNDWATER DEPTNS ARE NOT E Acr..
4. WATER LEVEL IS AT TIME OF wLORATION AND WILL VARY.
Page 1 of 1
* &M 0
,,wr S&ME
EENGINEERING -
MEWAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 62
S&ME Project No. 1411.06.075
DATE DRILLED: 8118106 ELEVATION: 2 X754-T NOTES:
DRILLING METHOD: 3Y." H.S.A. BORING DEPTH: 3.0 7-16$,96
LOGGED BY. MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich D-50
U O Z } STANDARD PENETRATION TEST DATA uI
a MATERIAL DESCRIPTION _
a
> (L -J (blowstft) a
W !
fl W
a u
i a-
Q 2 >
z
O (n 10 20 30 .6.018.0. ,
• CONCRETE
CRUSHED STONE 501
ALLUVIUM: Very dense, gray and tan, silty fine 2"
nd rav
l
ith
SAND SM
bbl
t
w
es a
e
co
o coarse
Auger Refusal @ 3' 27 3,10
NOTES:
t. THIS LOG IS ONL YA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
2. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-1580.
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of 1
*S&ME
ENGINEERING - TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 63
S&ME Project No. 1411-06-076

DATE DRILLED: 818106
ELEVATION: 2MCI
7,757.6 NOTES:
DRILLING METHOD: 3'/:' H.S.A. BORING DEPTH: 10.0 2,147.0
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich 0-50
U > zo o a. STANDARD PENETRATION TEST DATA w
o MATERIAL DESCRIPTION M ?
> 0. (blows/ft) a
W F .
V

" I
vai
10 20 30 60 80 z
ASPHALT
ML with some gravel
ALLUVIUM: Very dense, tan, gray an
fine to coarse SAND (SM) with gravel
5
1
Boring Terminated @ IV Zit 1.0
silty
1
2
3
4
7 1
72 1
95
501
2"
VOTES:
t. THIS LOG IS ONLYA PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT,
2. BORING, SAMPLING AND PF-NETRA77ON TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-168A
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEM IS AT TIME OF EXPLORATION AND WILL VARY.
Page i of 9
S 0 ME
m Irm
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 64
SBME Project No. 1411-06475

DATE DRILLED: 8115106
ELEVATION: Z ?• NOTES: CAVED AT 11.5'
DRILLING METHOD: 31/:' H.S.A. BORING DEPTH: 18.5 ZZ ?•?-'7
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich D-50
U p z (L STANDARD PENETRATION TEST DATA j
a.
MATERIAL DESCRIPTION
w
a a sm
(?0M1 I
a ? w a z
. Q
to 10 20 30 60 80
CONCRETE
CRUSHED STONE
ilt
fi
t 1 18
ne
o
y
FILL: Medium dense, tan and brown, s
medium SAND (SM)
FILL: Very stiff, brown and gray, fine sandy SILT 2 s 20
5 (ML) with a trace of clay (some topsoil in Sample 2756.0
No. 3)
3 16
FILL: Medium dense, gray and black, silty fine to 4 i 20
10 coarse SAND (SM) with hardened petroleum 2751.0
product

ALLUVIUM: Dense, gray and tan, silty fine to
coarse SAND (SM) with gravel
5 44
15 2746.0

L-
L Auger Refusal @ 16.5' 21,?J
-
--I
I
I
tII
I
NOTE
f. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
2. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH AS7M D•1585.
s. STRA17FICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
t. WATER LEVEL IS AT 77ME OF EXPLORATION AND WILL VARY.
Page 1 of 1
*S&ME
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG $2
$&ME Project No. 1411-08-075
DATE DRILLED: 81:108 ELEVATION: VM-.C ' ZZ ?rj.15 NOTES: CAVED AT 8'
DRILLING METHOD: 31/4" H.S.A. BORING DEPTH: 11.0 nc 7 q. YJ
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich 0.50

U -J
O UJ
z Z
STANDARD PENETRATION TEST DATA
uJ
MATERIAL DESCRIPTION $ a a (ate)
z
3 °' <n 10 20 3. .60.80 ,
ASPHALT
CRUSHED STONE and soil
FILL: Very dense, black and brown, silty fine to 1 69
medium SAND (SM) with coal
2 S0/
1
5 2753.0
ALLUVIUM: Dense to very dense, brown and 3 00 00 44
white, silty fine to coarse SAND (SM) with rock HC
fragments

4 4
p
pI 50/
6"
10 8.0-
27
Auger Refusal @ 11' 27 6 L4, %
NOTES
1. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
1. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM 0.1580.
I STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
A WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page ) of 1
S 0-mie
ENGINEERING - TESTING
ENVIRONMENTAL SERVICES

PROJECT: WAYNESVILLE TOWN CENTER BORING LOG 83
WAYNESVILLE, NC
S&ME Project No. 1411.06.078
'
l ZZ GT •0 NOTES: CAVED AT 6
DATE DRILLED: 812106 ELEVATION: zw
DRILLING METHOD: 3'/4" H,S.A. BORING DEPTH: 8.0 753

LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED

DRILLER: OAKES1 WAGNER DRILL RIG: Diedrich 0-50
zO
w z o- STANDARD PENETRATION TEST DATA a
U
, r= =
d o MATERIAL DESCRIPTION ? w W
IL a (blowstft) a
z
_
v O J W u? < 10 20 30 6080

A
with sail 47
- ALLUVIUM: Dense to very dense, tan and gray,
silty fine to coarse SAND (SM) with gravel
2 ?
57
2762.0
5 HC
3 59

Auger Refusal @ 8'

0
W
rn
y
0.
N
$
b
S
J
O
J
?i
z
0
O
m
No s: Page 1 of 1
INED
F
O
THIS LOG IS ONLYA
1
T
A
.
TREPORT
TOGETHER WITH TH
PROJECT AND MUST ONL YBE USED
SAMPLING AND PENETRATION TEST DATA IN GENERAL
BORING
2
,
.
ACCORDANCE WITH ASTM D-1589.
7. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
*Sara
a. WATER LEVEL IS A T TIME OF EXPLORATION AND WILL VARY.
N
E
N
N
TAL SERVICES
VIIR
N
ONME
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 84
S&ME Project No. 1411-06-075

V7;1
0 NOTES:
DATE DRILLED: 814106 ELEVATION: 0
.
DRILLING METHOD: 3'/4" H.S.A. BORING DEPTH: 15.0 2,7 Lf p
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich D-50

U J
>
p _ W
z
STANDARD PENETRATION TEST DATA
0- o MATERIAL DESCRIPTION w a 0. (blows/ft)
Z
W W
W
Q
3 10 20 30 6.018.. ,
CONCRETE
CRUSHED STONE
ALLUVIUM: Medium dense, brown, silty fine to 1 14
el
and?rav
medium SAND(SM) with some topsoil
_
_
?
ALLUVIUM: Dense to very dense, brown and
gray, fine to coarse SAND (SW-SM) with silt and 2 39
5 gravel 2755.0
3 i 87
4 75
10 2750.0
50/
• 5 4„
15 2745.0
Auger Refusal @ 15' '1_77
NOTES:
i. THIS LOG IS ONLYA PORTION OFA REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY SE USED TOGETHER WITH THAT REPORT.
2. GORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-1586.
I STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of 1
&NOME
Tirm
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
I. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY SE USED TOGETHER WITH THAT REPORT.
2. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D4588.
I STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
t WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 9 of I
-* ro"r
TOWN
ENGINEERING - TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER BORING LOG 101
WAYNESVILLE, NC
S3ME Project No. 1411-06-076

o 7 (at
Sa NOTES: CAVED AT 7.5'
DATE DRILLED: 82108 .
ELEVATION: .
DRILLING METHOD: 3Y4" H.S.A. BORING DEPTH: 12.5 ? (OD .0

LOGGED $Y: MHM WATER LEVEL: NOT ENCOUNTERED

DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich D-60
z0 0 CL STANDARD PENETRATION TEST DATA

U
_ > w
a 0 MATERIAL DESCRIPTION > a -> (blowslft) a

>
W a. W ? J W
Q Z
0 w u
i 10 20 30 6080

ONE with soil 1 10
ange-brown and gray, fine sandy
h a trace of day
V
very moist, gray, brown, and
F 10
fine to medium SAND (SM) with
t 2
5 • y 2761.0

: Dense to very dense, tan and gray,
ALLUVIUM
fine to coarse SAND (SW) with gravel g Ilk 33

50/
4 4"
10 2756.0
•
Auger Refusal Q 12.5' Z'1 D • 0
3

E
L
s

IL

NorES:
1. TS LOG IS ONLYA PORTION OF A REPORT PREP THENAMED
PROD CT AND MUST ONLY BE USED TOGETHER ATN THAOT REPORT.
2. BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM 0-1588.
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page ? of 9
COME
ENGINEERING • TESTING
ENVIRONMEWAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
BORING LOG 102
WAYNESVILLE, NC
S&ME Project No. 1411-06-075
NOTES:
DATE DRILLED: 8117106 ELEVATION: 0 ZZ x
DRILLING METHOD: 3%" H.S.A. BORING DEPTH: 5.5 2• rj •

LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED

DRILLER: OAKES/ WAGNER DRILL RIG: Diedrich D-50
,.+
O W
z 0.
STANDARD PENETRATION TEST DATA
0- o MATERIAL DESCRIPTION w a. (blows/ft)
'
III W
N
J 0.
Q z
W N 10 20 30 fi0 80
TOPSOIL
FILL: Firm, wet, dark brown, fine sandy SILT 1 5

] (MH) with clay and topsoil
------------
--------------
FILL: Very stiff, wet, brown, fine sandy SILT (ML)
with a trace of clay 2 17
5- 2757.0

Auger Refusal @ 5.5' Z75 1, 6
NOT
f. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY SE USED TOGETHER WITH THAT REPORT.
7. BORINO, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D•rs8e.
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF "PLORAn0N AND WILL VARY.
Page 1 of 9
0 ME
ENV Ot iMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER BORING LOG 919
WAYNESVILLE, NC
S&ME Project No. 4411.06-075

Z? NOTES: CAVED AT 8.5'
DATE DRILLED: 812106 .
ELEVATION: 2
DRILLING METHOD: 31/.' H.S.A. BORING DEPTH: 12.0 17 52.0

LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED

DRILLER: OAKESI WAGNER DRILL RIG: Diedrich 0.50
J
O W
z (L
STANDARD PENETRATION TEST DATA

a m U
a `?
MATERIAL DESCRIPTION
a ?
(biowslft)
,.
W
fi0 60 Z
3
a
10 20 30
ASPHALT
CRUSHED STONE and soil 1 6
FILL: Firm, wet, brown, sandy SILT (MH) with
some ca
ALLUVIUM: Very stiff, black and brown, silty
' 28
medium to Coarse SAND (SM) with gravel 2
5
_ ^ 2760.0
ALLUVIUM: Very dense, brown, silty fine to 3 ( 55
coarse SAND (SM) with gravel
hc_
i 501
4 , 3°
2755.0
10

Auger Refusal 12'
3
S
a
i
i
Zi
5
7
C
1
7
NOTES
i. THIS LOG IS ONLY A PORTION OFA
PR JECTANDMUSTONLYBEUSEDRTOGR ETHERWITH THAT REPORT.
Z BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM 0.1588.
3. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of 1
eomil
MWUINN
ENGINEERING - TESTING
ENYIRONMEWAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 120
S&ME Project No. 1411-08-075
DATE DRILLED: 818108 ELEVATION: 2 7111 .0 Z??(,D NOTES:
DRILLING METHOD: 3'h" H.S.A. BORING DEPTH: 7.6 7-7 9 3.5
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich D-SO
_ U p Z a. STANDARD PENETRATION TEST DATA j
a. a. o MATERIAL DESCRIPTION x (La I?0`" s/ft)
j
,. 2 2

3
W
ai
10 20 30 60 80 Z
ASPHALT
CRUSHED STONE with soil
I
ALLUVIUM: Dense, wet, gray and black, silty fine 1 34
ravel
to medium SAND (SM, with a trace of
g
_ _ _ _
ALLUVIUM: Tan and white, silty fine to coarse
SAND (SM) with gravel 2 ! 111 0 11 55
1
5 2758.0-
3 108
Auger Refusal @ 7.5' ?Z 3.7
NOTES:
i. THIS LOO IS ONLYA PORT70N OF A REPORT PREPAREO FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
1. BORING, SAMPLING AND PENETR 4170N TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-1686.
a. STRATIFICATION AND GROUNDWATER DEPTHS ARE NOT EXACT.
I. WATER LEVEL IS AT TIME OF EXPLORAT7ON AND WILL VARY.
Page 1 of 1
COME
M4MIrm
ENGINEERING • TESTING
ENVIRONMENTAL SERVICES
PROJECT: WAYNESVILLE TOWN CENTER
WAYNESVILLE, NC BORING LOG 137
S&ME Project No. 1411-06-075
Z
(
O
?T
? NOTES: CAVED AT 12.5'
DATE DRILLED: 8/15/06 ELEVATION:
,?
g
•
DRILLING METHOD: 3'/." H.S.A. q
?
BORING DEPTH: 16.5 7 v7
LOGGED BY: MHM WATER LEVEL: NOT ENCOUNTERED
DRILLER: OAKESI WAGNER DRILL RIG: Diedrich D-W
U p Z Z STANDARD PENETRATION TEST DATA
m MATERIAL DESCRIPTION w a
WJ (blowslft)
J v a
Q Z
Q
3 u? 10 20 30 .6.0.8.o.
CONCRETE
CRUSHED STONE i

FILL: Medium dense, tan and brown, silty fine 1 18
SAND (SM)
2 23
5 2758.0
3 i 22
fine sandy SILT (ML) with
gray
ALLUVIUM: Firm 4 7
t0 ,
, 2753.0-
a trace of clay (organic odor)

5 10
15- 2748.0
Auger Refusal @ 16.5' 2??•f Z7
NOTES:
1. THIS LOG IS ONLY A PORTION OF A REPORT PREPARED FOR THE NAMED
PROJECT AND MUST ONLY BE USED TOGETHER WITH THAT REPORT.
Z BORING, SAMPLING AND PENETRATION TEST DATA IN GENERAL
ACCORDANCE WITH ASTM D-1684.
.7. STRA77FICA77ON AND GROUNDWATER DEPTHS ARE NOT EXACT.
4. WATER LEVEL IS AT TIME OF EXPLORATION AND WILL VARY.
Page 1 of 1
C 0
ENGINEERING - TESTING
ENVIRONMENTAL SERVICES
Instrument# 2008001223 Book 727 Page 1744
PRESENTED TO LAND RE 0 DS
DATE:?L/I?I)? BY
d7-c 77?
>I111? Il?nli?l? I101?1?111 III
2008001223
HAYWOOD CO, NC FEE $164.00
PRESENTED A RECORDED'
02-01-2008 04:22:48 PM
When recorded return to: R GM R. ff o EDS
VQ11 JNIC?s ?w r? BY AMY MURRAY
??Esq. P• D • WAX 74 REGISTER OF DEEDS
.. Asho, Ile, ut:ASac', BK: RB 727
I PG: 1744-1794
Mmn, OH-44M8
RESTRICTION AGREEMENT
AND GRANT OF EASEMENTS
THIS RESTRICTION AGREEMENT AND GRANT OF EASEMENTS (this "Agreement") is
made as of0 C-;R rx_r Lt-J_, 2007, by and between Waynesville Commons Retail Associates, L.L.C., a
North Carolina limited liability company ("Developer"), Home Depot U.S.A., Inc., a Delaware
corporation ("Home Depot") and Wal-Mart Stores East, LP, a Delaware limited partnership ("Wal-
Mart").
I. PRELIMINARY
1.1. Parties: Developer is the Owner of the Developer Parcel and the Outparcels, as well as
the initial ground lessor (the "Initial Ground Lessor") of the Home Depot Parcel and the Wal-Mart
Parcel. Home Depot is the Ground Lessee of the Home Depot Parcel. Wal-Mart is the Ground Lessee of
the Wal-Mart Parcel. The Parcels are located at the northwest quadrant of Main Street and Hyatt Creek
Road, in the City of Waynesville, County of Haywood, State of North Carolina, as more clearly
delineated on the Site Plan.
1.2. Purpose: The Parties plan to develop the Shopping Center as an integrated retail sales
complex for the mutual benefit of all Parcels in the Shopping Center and, therefore, do hereby fix and
establish the Easements and Restrictions upon and subject to which all of the Shopping Center, or any
part thereof, shall be improved, held, leased, sold and/or conveyed. Such Easements and Restrictions
shall run with the land and inure and pass with such Parcels and shall apply to and bind the respective
successors in interests thereof, and all and each Easement and Restriction is imposed upon such Parcels
as a mutual equitable servitude in favor of such Parcels and any portion thereof.
1.3. Definitions: The following defined terms shall have the meanings set forth below for
purposes of this Agreement.
Instril nt# 2008001223 Book 727 Page 1745
(a) "Adjacent 17 Acres": That certain real property to the west of the Shopping
Center consisting of approximately seventeen (17) acres, as identified on the Site Plan. The Parties agree
that any benefits or restrictions affecting the Adjacent 17 Acres pursuant to this Agreement, including
cross access rights, shall not be effective unless and until Developer, its affiliates, or an entity with
common beneficial ownership with Developer initially acquires fee simple ownership of or master
leasehold rights to the Adjacent 17 Acres; provide, however, any rights which became so effective shall
remain effective thereafter notwithstanding a subsequent sale or transfer of the Adjacent 17 Acres.
(b) "Agreement": This Restriction Agreement and Grant of Easements.
(c) "Approved Plans": Site Plan, grading, drainage, utility, site lighting, landscaping
and Pylon Signage plans for the Shopping Center approved by the Consenting Owners. Such Approved
Plans for the Shopping Center are referenced on Exhibit "D" attached hereto and made a part hereof.
(d) "Brownfields Agreement": The agreement(s) entered into by the North Carolina
Department of Environment and Natural Resources and Developer (and/or its affiliate or predecessor in
title) on or about April 5, 2007 for the Shopping Center related to the pre-existing contamination in, and
the development of, the Shopping Center.
(e) "Building": Any permanently enclosed structure placed, constructed or located
on a Parcel, which shall include any appurtenant canopies and supports.
(1) "Building Area": All those areas on each Parcel designated as "Building Area"
on the Site Plan.
(g) "Center Pylon Sign(s)": The pylon signs designated on the Site Plan but not
including monument signs which may be located on the Outparcels.
(h) "City": The city of Waynesville, North Carolina.
(i) "Claims": Causes of action, claims, liabilities, losses, damages, costs and
expenses (including reasonable attorneys' fees and court costs).
0) "Common Area": All those areas on each Parcel which are not Building Area or
Service Areas, together with those portions of the Building Area on each Parcel which are not from time
to time actually covered by a Building, Garden Center or being used as Outside Sales Area. Canopies
which extend over the Common Area, together with any columns or posts supporting same, shall be
deemed to be a part of the Building to which they are attached and not a part of the Common Area. The
improvement or use of any portion of the Building Area as Common Area shall not be construed as a
permanent inclusion of such portion within the Common Area, and such portions may, at any time
thereafter, be improved with Buildings and appurtenances as contemplated by this Agreement.
(k) "Consenting Owners": The Ground Lessee of the Home Depot Parcel if a ground
lease is in effect; otherwise the Owner of the Home Depot Parcel; the Ground Lessee of the Wal-Mart
Parcel if a ground lease is in effect; otherwise the Owner of the Wal-Mart Parcel, and the Owner of the
Developer Parcel; provided, however, that in the event any such Consenting Owner sells its Parcel and
becomes the Prime Lessee thereon, such Prime Lessee shall be deemed appointed as the entity to cast the
vote or give the consent for the Parcel on behalf of the Consenting Owner so long as it is the Prime
Lessee of said Parcel; provided further, however, in the event any such Consenting Owner sells any
portion, but not all, of its Parcel, then the Consenting Owner as to such Parcel shall be that Owner who
2
Instril nt# 2008001223 Book 727 Page 1746
owns the largest portion of Land Area within such Parcel, regardless of any agreement to the contrary.
There shall not be more than three (3) Consenting Owners unless all existing Consenting Owners
unanimously agree to additional Consenting Owners.
(1) "Default Rate": The greater of (i) ten percent (10%) per annum or (ii) the prime
rate plus three percent (3%). As used herein, "prime rate" shall mean the rate of interest published from
time to time as the "Prime Rate" in the Wall Street Journal under the heading "Money Rates"; provided,
however, that (i) if more than one such rate is published therein the prime rate shall be the highest such
rate, and (ii) if such rate is no longer published in the Wall Street Journal or is otherwise unavailable, the
prime rate shall be a substantially comparable index of short term loan interest rates charged by U.S.
banks to corporate borrowers selected by the Consenting Owners.
(m) "Developer": Waynesville Commons Retail Associates, L.L.C., a North Carolina
limited liability, its successors and assigns.
(n) "Developer Parcel": The Parcel legally described on Exhibit B-1 and identified
on the Site Plan as Outparcel 2 or the "Developer Parcel."
(o) "Development Agreement - Home Depot": That certain Development Agreement
between Developer and Home Depot which encumbers the Home Depot Parcel, and Essential
Appurtenances (as defined in the Development Agreement - Home Depot) a memorandum of which may
be recorded concurrently with this Agreement.
(p) "Development Agreement - Wal-Mart": That certain Development Agreement
between Developer and Wal-Mart which encumbers the Wal-Mart Parcel, a memorandum of which may
be recorded concurrently with this Agreement.
(q) "Easements": The easements fixed and established upon the Shopping Center
pursuant to this Agreement.
(r) "Floor Area": The total number of square feet of floor space on each floor in a
Building, including basement, subterranean, balcony and mezzanine space, irrespective of whether
actually occupied, and including any outdoor seating area used exclusively by an Owner or Occupant for
its Permittees. Floor Area shall be measured from the exterior line of the exterior walls and from the
center line of any party or common interior walls without deduction for columns, walls or other structural
or non-structural components; provided, however, in no event shall the following be included in such
calculations: (i) the Garden Center located on the Wal-Mart Parcel, (ii) the Garden Center located on the
Home Depot Parcel, or (iii) Service Areas.
(s) "Garden Center": A fenced outdoor area within the Building Area located on the
Home Depot Parcel and/or the Wal-Mart Parcel, portions of which may be under roof or canopy and
other portions of which may be "open air" areas.
(t) "Governmental Regulations": Any or all laws, statutes, ordinances, codes,
decrees, rulings, regulations, writs, injunctions, orders, rules, or conditions of approval or authorization
of any governmental entity, agency or political subdivision whether now in force or which may hereafter
be in force.
and assigns.
(u) "Home Depot": Home Depot U.S.A., Inc., a Delaware corporation, its successors
3
Instri, nt# 2008001223 Book 727 Page 1747
(v) "Home Depot Parcel": The Parcel legally described on Exhibit B-2 and
identified on the Site Plan as the "Home Depot Parcel".
(w) "Improvements": Any Building, sign or Common Area improvements located in
the Shopping Center.
(x) "Land Area": The total gross square footage of a Parcel.
(y) "Lienholder": Any mortgagee under a mortgage, a grantee under a deed to secure
debt, or a trustee or beneficiary under a deed of trust constituting a lien on any Parcel.
(z) "Occupant": Any Person or Prime Lessee from time to time entitled to the use
and occupancy of any portion of a Building in the Shopping Center under an ownership right or any
lease, sublease, assignment, license, concession, or other similar agreement.
(aa) "Outparcel" or "Outparcels": Individually or collectively, the real property
legally described on Exhibit B-3 and identified on the Site Plan as "Outparcel I," "Outparcel 3," and
"Outparcel 4."
(bb) "Outside Sales Area": An area generally unprotected from the elements which
may be used for sales and/or storage purposes. An Outside Sales Area shall only be located in the area(s)
designated on the Site Plan. Any designation on the Site Plan of "seasonal sales" or "seasonal sales area"
shall be deemed Outside Sales Area.
(cc) "Owner": (i) The record holder of fee simple title to a Parcel, its heirs, personal
representatives, successors and assigns, or (ii) a Prime Lessee as to a Parcel that is subject to a Prime
Lease. Home Depot, a Prime Lessee as of the effective date of this Agreement, shall be the Owner of the
Home Depot Parcel and Wal-Mart, as Prime Lessee as of the effective date of this Agreement, shall be
the Owner of the Wal-Mart Parcel. Each Parcel may have only one Owner, provided that the Owner of a
Parcel (other than initially the Developer for purposes of the Home Depot Parcel and the Wal-Mart
Parcel) subject to a Prime Lease shall be jointly and severally liable with the Prime Lessee for any
Claims or any default hereunder with regard to the ownership or operation of such Parcel.
(dd) "Parcel" or "Parcels": Individually or collectively, the Home Depot Parcel, the
Wal-Mart Parcel, the Outparcels, and the Developer Parcel, as each is shown on the Site Plan and more
particularly described in Exhibit "B".
and assigns.
(ee) "Party" or "Parties": The parties set forth in Section 1.1 above, their successors
(ff) "Permanent Drives": Those certain accessways shown on the Site Plan as
"Permanent Drive(s)" including, without limitation, the curb cuts on such accessways, for which
alterations or modifications must be approved pursuant to Section 3.7 herein.
(gg) "Permittee": All Occupants and the officers, directors, employees, agents,
contractors, customers, vendors, suppliers, visitors, invitees, licensees, assignees, subtenants, and
concessionaires of Occupants insofar as their activities relate to the intended use of the Shopping Center.
4
Instrument# 2008001223 Book 727 Page 1748
(hh) "Person": Individuals, partnerships, firms, associations, corporations, limited
liability companies, trusts, governmental agencies, administrative tribunals or any other form of business
or legal entity.
(ii) "Prime Lessee": An Occupant of an entire Parcel who is not the Title holder of
such Parcel pursuant to an agreement by which such Prime Lessee is subject to all obligations and
responsibilities relating to the ownership and operation such Parcel and any business thereon.
(jj) "Restaurant": Any operation or business which requires a governmental permit,
license and/or authorization to prepare and/or serve food for either on- or off-site consumption, exclusive
of any food service located within the Building upon the Wal-Mart Parcel or the Home Depot Parcel
which is incidental to the primary use conducted within said Building.
(kk) "Restrictions": The covenants, restrictions, liens and encumbrances fixed and
established upon the Shopping Center pursuant to this Agreement.
(11) "Service Areas": The sidewalks attached to and/or adjoining a building, trash
compactors and enclosures, exterior lighting attached to a Building, driveup or drive-thru customer
service facilities directly adjacent or in close proximity to a Building, side yards and rear yards used for
outdoor storage (provided such outdoor storage does not interfere with the flow of vehicular traffic),
loading docks, electrical facilities and transformers, truck ramps and other similar exclusive service
facilities and outward extensions, and customer pickup areas directly adjacent or in close proximity to a
Building on the Wal-Mart Parcel or Home Depot Parcel, all whether or not described, labeled or depicted
as such on the Site Plan. The Service Areas are the exclusive property of the Owner of the Parcel and not
part of Common Area.
(mm) "Shopping Center": Collectively, all of the Parcels.
(nn) "Site Plan": The site plan of the Shopping Center shown on Exhibit "A" attached
hereto.
(oo) "Utility Lines": Those facilities and systems for the transmission or other
provision of utility services, including, but not limited to, constructed wetland supplementation, water
drainage, detention or retention systems or structures, water mains, sewers, lift stations, water sprinkler
system lines, electrical conduits or systems, gas mains, other public or private utilities providing service
to all Owners of the Shopping Center in common.
(pp) "Wal-Mart": Wal-Mart Stores East, LP., a Delaware limited partnership, its
successors and assigns.
(qq) "Wal-Mart Parcel": The Parcel legally described on Exhibit B-3 and identified
on the Site Plan as the "Wal-Mart Parcel."
2. BUILDING AND COMMON AREA DEVELOPMENT
2.1. Building Location: All Buildings shall be placed or constructed upon the Parcels only in
the Building Areas. Buildings may be located (or relocated) anywhere within the Building Area provided
the total Floor Area of all Buildings constructed within a Building Area does not exceed the lesser of (i)
the square footage assigned to such Building Area as shown on the Site Plan (or as otherwise designated
herein), or (ii) the maximum square footage of Floor Area permitted on such Parcel by the application of
5
Instrument# 2008001223 Book 727 Page 1749
the minimum parking requirements set forth in Section 4.1 below. All unimproved portions of a Parcel
shall be covered by decomposed granite, gravel, sod, hydroseed or as otherwise permitted by
Governmental Regulations and kept weed free and clean at the subject Owner's sole cost and expense
until such time as Buildings are constructed thereon.
2.2. Common Area: Except as permitted by the second paragraph of this Section 2.2, the
Common Area is hereby reserved for the sole and exclusive use of all Owners and Occupants of the
Shopping Center and their Permittees. The Common Area may be used for vehicular driving, parking
(except as limited by Section 4.1 hereof) and pedestrian traffic and such other purposes as are usual and
customary in Shopping Centers in the City's metropolitan area, unless otherwise specifically prohibited
in this Agreement. The Common Area shall be maintained as provided for in Article 6. The Owners
acknowledge and agree that incidental temporary encroachments upon the Common Area may occur as a
result of the use of ladders, scaffolds, store front barricades and similar facilities in connection with the
construction, maintenance, repair, replacement, alteration or expansion of Buildings, signs and/or the
Common Area, all of which are permitted under this Agreement so long as all activities requiring the use
of such equipment are expeditiously pursued to completion and are performed in such a manner as to
minimize any interference with use of the improved Common Area or with the normal operation of any
business in the Shopping Center.
The Developer may grant permanent rights of vehicular and pedestrian ingress and egress and
utility connections (but not parking rights) to the Common Areas for the benefit of the Adjacent 17
Acres; provided the owners or occupants of the Adjacent 17 Acres contribute an equitable amount to the
cost of the maintenance of the Common Area in the Shopping Center and further provided that the
Adjacent 17 Acres are subject to restrictions on use as set forth in Section 5 hereof. Notwithstanding
anything to the contrary herein, Wal-Mart shall have the right to approve the location, and timing of
construction, of any utilities installed on the Wal-Mart Parcel to service the Adjacent 17 Acres.
2.3. Type and Design of Building:
(a) All Improvements in the Shopping Center shall be constructed in conformity
herewith and with the Approved Plans, unless the constructing Owner has obtained the prior written
consent of the Consenting Owners; provided, however, minor changes required for the expansion or
modification of the Building(s) or other Improvement(s) on it shall not require the further consent of the
Consenting Owners if such expansion or modification is within the Building Area shown on the Site
Plan; and if no other Parcel is negatively affected with respect to drainage or utility access and provided
further that a modification to a Utility Line that does not impact any other Parcel shall not require
additional approval. There shall be no interference with the established drainage pattern and system over
any portion of the Parcels unless adequate provision is made for proper drainage and such interference is
approved by all affected Owners.
(b) Subject to Section 2.3(e) below, every Building shall be either equipped with
automatic sprinkler systems which meet all the standards of the Insurance Services Office, Inc. (or other
similar local organization having jurisdiction) or shall be constructed in such a manner as not to
adversely affect the fire rating as determined by local governing agencies of any Building built upon any
other Parcel.
(c) No Building shall be built in such a manner as to adversely affect the structural
integrity of any other Building in the Shopping Center. No Owner shall have the right to make any
attachment whatsoever to another Owner's Building (such other Owner being referred to in this
subparagraph only as "Other Owner") without such Other Owner's prior written approval, which may be
6
Instrument# 2008001223 Book 727 Page 1750
withheld in such Other Owner's sole and absolute discretion. If the Other Owner approves the requested
attachment, the Owner making the attachment shall, prior to making such attachment, obtain the Other
Owner's prior written approval (which may be withheld in its sole and absolute discretion) of the
drawings and specifications detailing the attachment. Any such attachment shall be at the sole cost and
expense of the Owner making the attachment and shall be in strict conformance with the approved
drawings and specifications detailing the same. Thereafter, the Owner making the attachment shall
maintain and repair such attachment and shall repair any affected portion of the Other Owner's Building
due to the attachment to the Other Owner's Building.
(d) No building constructed on the Wal-Mart Tract, the Developer Tract, or the
Home Depot Tract shall exceed 45' in height measured from the finished floor. No Building on
Outparcel 1 (including any landscaping located thereon) shall exceed one (1) story and twenty-eight (28)
feet in height measured from the finished floor elevation of the Building upon the Outparcel, exclusive of
all architectural embellishments, mechanical fixtures, signage and television equipment, and screening
for same. No building on Outparcel 3 and Outparcel 4 (including any landscaping located thereon) shall
exceed one (1) story and twenty five (25) feet in height measured from the finished floor elevation of the
Building upon such Outparcels, exclusive of all architectural embellishments, mechanical fixtures,
signage, and television equipment and screening for same, provided such embellishments, fixtures,
signage, equipment or screening shall not exceed twenty eight (28) feet measured from finished floor
elevation and the embellishments, fixtures, signage, equipment or screening in excess of twenty five (25)
feet in height shall not extend greater than fifty percent (50%) of the length/width of the longest building
face. No mezzanine or basement shall be used for the sale or display of merchandise or for the offer or
provision of retail services to the public.
(e) The Building to be constructed on the Home Depot Parcel may be built as
Category V-NR (non-rated), as that category is defined pursuant to the Uniform Building Code 2000
Edition (UBC). Any Building on any other Parcel within the Shopping Center shall be constructed in
such a manner to allow that the Building on the Home Depot Parcel may be constructed or otherwise
remains as at least as broad as Type V-NR pursuant to the UBC 1997 edition.
(f) There shall not be constructed in the Shopping Center any parking structure,
whether over or under ground level.
(g) No building shall be constructed on the Shopping Center (as either immediate
development or future expansion) except within the Building Areas. Any buildings located on Outparcel
3 shall not exceed 7,500 square feet in size and on Outparcel 4 shall not exceed 10,000 square feet in size
and any building located on Outparcel 1 shall not exceed 8,500 square feet in size. Any buildings located
on the Developer Parcel shall not exceed 30,000 square feet in size collectively. Any rooftop equipment
constructed on the Buildings located on the Outparcels shall be screened so as not to be visible from the
mean finished elevation of the parking area.
2.4. Construction Requirements:
(a) All work performed in the construction, repair, replacement, alteration or
expansion of any Improvements shall be performed as expeditiously as possible and in such a manner as
not to unreasonably interfere, obstruct or delay (i) access to or from the Shopping Center, or any part
thereof, to or from any public right-of-way, (ii) customer vehicular parking in that portion of the
improved Common Area located in front of any Building constructed in the Shopping Center, or (iii) the
receiving of merchandise by any business in the Shopping Center, including, without limitation, access to
its Building. In addition, all work performed on Improvements on the Outparcels shall not unreasonably
7
Instri, nt# 2008001223 Book 727 Page 1751
interfere, obstruct or delay (i) construction work being performed on any other Parcels, or (ii) the use,
enjoyment or occupancy of any other Parcels. Unless otherwise specifically stated herein, the Person
contracting for the performance of such work ("Contracting Party") shall, at its sole cost and expense,
promptly repair and restore or cause to be promptly repaired and restored to its prior condition all
Buildings, signs and Common Area improvements damaged or destroyed in the performance of such
work.
(b) The Contracting Party (as defined in Section 2.4(a) above) shall not permit any
mechanics', materialmen's or other professional services liens (as contrasted with consensual monetary
liens such as construction and/or permanent financing) to stand against any other Parcel for any work
done or materials furnished in connection with the performance of the work described in subparagraph
(a) above; provided, however, that the Contracting Party may contest the validity of any such lien, but
upon a final determination of the validity thereof, the Contracting Party shall cause the lien to be satisfied
and released of record. The Contracting Party shall, within thirty (30) days after receipt of written notice
from the Owner or Prime Lessee of any Parcel encumbered by any such lien or claim of lien,
(notwithstanding that a final determination of validity has not been made) (i) cause any such outstanding
lien or claim of lien to be released of record or transferred to bond in accordance with applicable law, or
(ii) subject to approval of the Owner of the Parcel against which the lien or claim of lien is imposed give
such assurance as would enable a title insurance company to insure over such lien or claim of lien, failing
which the Owner or Prime Lessee of said Parcel shall have the right, at the Contracting Party's expense,
to transfer said lien to bond. The Contracting Party shall indemnify, defend, protect and hold harmless
the Owners and Occupants for, from and against any and all liability, claims, damages, expenses
(including reasonable attorneys' fees and costs and reasonable attorneys' fees and costs on any appeal),
liens, claims of lien, judgments, proceedings and causes of action, arising out of or in any way connected
with the performance of such work, including an Owner's or Occupant's own negligence, unless such
cause of action is solely the result of the negligent or willful misconduct of the indemnified Owner or
Occupant.
(c) Staging for the initial construction of Buildings not covered by the Development
Agreement, or the replacement, alteration or expansion of any Improvements located in the Shopping
Center including, without limitation, the location of any temporary buildings or construction sheds, the
storage of building materials, and the parking of construction vehicles and equipment shall (i) be located
solely on the constructing Owner's Parcel, or (ii) be limited to specific areas ("Staging Area") of the
Shopping Center designated on the Site Plan or otherwise approved in writing by the Consenting Owners.
Each Staging Area on any Parcel shall be located in such a way that it will not interfere with the use of
the Common Area on any other Parcel. The Staging Areas, on the Wal-Mart Parcel, shall be at least fifty
(50) feet from any point on the Home Depot Parcel. The Staging Area on the Home Depot Parcel shall
be at least fifty (50) feet from any point on the Wal-Mart Parcel. The Staging Area for each Outparcel
shall be located on that Outparcel unless the Owner of the Outparcel obtains the consent of the Owner on
whose Parcel it proposes to locate said Staging Area. At the request of any Consenting Owner, any
Staging Area for an Outparcel shall be enclosed by a safety fence. Upon completion of such work, the
constructing Party shall, at its expense, restore any damaged Common Area to a condition equal to or
better than that existing prior to commencement of such work.
2.5. Temporary License: Each Owner hereby grants to the other Owners a temporary license
for access and passage over and across the Common Area located on the granting Owner's Parcel, to the
extent reasonably necessary for such Owner to construct and/or maintain Improvements upon its Parcel;
provided, however, that such license shall be in effect only during periods when actual construction
and/or maintenance is being performed, and provided further that the use of such license shall not
8
Instrument# 2008001223 Book 727 Page 1752
unreasonably interfere with the use and operation of (i) any business conducted by an Owner or
Occupant, or (ii) the Common Area on the granting Owners Parcel. Prior to exercising the rights granted
herein, an Owner shall provide each granting Owner with a written statement describing the need for
such license, and shall furnish a certificate of insurance showing that its contractor has obtained the
minimum insurance coverage required by this Agreement. The Owner shall promptly pay all costs and
expenses associated with such work, shall complete such work as quickly as possible, and shall promptly
clean and restore the affected portion of the Common Area on the granting Owner's Parcel to a condition
which is equal to or better than the condition which existed prior to the commencement of such work.
2.6. Indemnity: In addition to the indemnification provided in Section 12.3 below, each
Owner shall indemnify, defend, protect and hold every other Owner and their respective officers,
directors, shareholders, employees and agents harmless for, from and against any and all Claims arising
out of or related to injury to or death of any person or damage to or destruction of any property occurring
on any Parcel and arising out of or resulting from any construction activities performed by or at the
request of an Owner or its Occupants, including an Owner's or Occupant's own negligence, unless such
damage or destruction is caused solely by the negligent or willful act or omission of the indemnified
Owner.
2.7. Approval Procedures:
(a) Before any action requiring the Consenting Owners' approval is commenced,
sufficient information shall be sent to the Consenting Owners to enable the Consenting Owners to make a
decision as to the proposal. Each Consenting Owner shall have the right to approve or disapprove the
proposal in accordance with the manner and time procedures set forth in Section 14.6 below, and if such
Consenting Owner disapproves the proposal, it shall provide a written explanation in reasonable detail of
its reasons for disapproval.
(b) No Consenting Owner shall be liable in damages or otherwise for any reason,
including any mistake in judgment, negligence or nonfeasance, arising out of or in connection with the
approval or disapproval or failure to approve or disapprove any proposal submitted pursuant to this
Agreement. Each Owner agrees that, by acquiring title to its Parcel and submitting its proposed
construction plans, it will not bring any action or suit against any Consenting Owner to recover any such
damages. In addition, each Owner shall indemnify, defend, protect and hold the Consenting Owners and
their respective officers, directors, shareholders, employees and agents harmless for, from and against
any and all Claims arising out of or related to the approval or disapproval of its proposed construction
plans submitted to a Consenting Owner by or on behalf of such Owner or its Occupants. No approval
shall be considered an approval of the proposed construction plans from an engineering perspective or a
determination that they meet building, environmental or engineering design standards, or that any such
Improvements have been built in accordance with such plans.
3. EASEMENTS
3.1. Ingress Egress and Parking: Each Owner, as grantor, hereby grants to each other Owner,
as grantee, for the benefit of each Parcel belonging to the other Owners, and for the use of said Owner
and its Permittees, a perpetual nonexclusive easement for ingress and egress by vehicular and pedestrian
traffic together with the right to park (subject to the terms of Section 4.1) upon, over and across that
portion of the Common Area located on the grantor's Parcel(s), except for those areas devoted to Service
Areas. The easement herein created shall include but not be limited to access to and from Hyatt Creek
Road and Main Street across each Parcel as shown on the Site Plan. In the event that Developer grants
rights to the Common Area to the owners and occupants of the Adjacent 17 Acres the easement for
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Instrument# 2008001223 Book 727 Page 1753
ingress and egress (but not parking) herein created as well as those easement rights created by 3.3 hereof,
shall run for the benefit of the Adjacent 17 Acres. Notwithstanding anything to the contrary herein
contained, in no event shall the owner, occupant, licensee, or invitee of any Outparcel be permitted to use
the Wal-Mart Parcel, the Home Depot Parcel or the Developer Parcel for vehicular parking, nor shall the
owner, occupant, licensee or invitee of the Wal-Mart Parcel, the Home Depot Parcel or the Developer
Parcel utilize the Outparcels for vehicular parking. It is additionally understood and agreed that neither
Wal-Mart nor Home Depot shall obstruct the "turnaround" drive which shall be used by trucks servicing
the Wal-Mart Parcel and Home Depot Parcel, as such drive is located on Exhibit A, without the express
written consent of the other party.
3.2. Reserved.
3.3. Utility Lines and Facilities:
(a) Each Owner, as grantor, hereby grants to each other Owner, as grantee, for the
benefit of each Parcel belonging to the other Owners, a perpetual nonexclusive easement under, through
and across the Common Area of the grantor's Parcel(s) for the installation, operation, flow, passage, use,
maintenance, connection, repair, relocation, removal and replacement of Utility Lines, subject to the
written approval of the granting Owner as to the location of such Utility Lines, and otherwise consistent
with the Approved Plans. All such Utility Lines shall be installed and maintained below the ground level
or surface of such easements, except that fire hydrants, ground mounted electrical transformers and such
other facilities as are required to be above ground by the utility providing such service (including
temporary service required during the construction, maintenance, repair, replacement, alteration or
expansion of any Buildings or improvements located in the Shopping Center) or which have been
approved by the Consenting Owners shall be permitted. The easement area shall be no wider than
necessary to reasonably satisfy the requirements of a private or public utility, or five feet (5') on each side
of the centerline if the easement is granted to a private party. The installation, operation, maintenance,
repair and replacement of such easement facilities shall not unreasonably interfere with the use of the
Common Area or with the normal operation of any business in the Shopping Center. The grantee shall
bear all costs related to the installation, operation, maintenance, repair and replacement of such easement
facilities, shall repair to the original specifications any damage to the Common Area resulting from such
use, and shall provide as-built plans for all such facilities to the Owners of all Parcels upon which such
Utility Lines are located within thirty (30) days after the date of completion of construction of the
easement facilities. Notwithstanding anything to the contrary herein, each Owner shall use its best
efforts to cause the installation of such utility and service lines prior to the paving of the Common Areas.
Notwithstanding anything to the contrary contained in this Section 3.3(a), no utilities shall be relocated
on Wal-Mart Parcel, the Home Depot Parcel or the Developer Parcel without the consent of the Owner of
said Parcel which consent shall not be unreasonably withheld, conditioned or delayed.
(b) Notwithstanding the grant of easement for sewer lines included within Section
33(a) above, any connections to sewer lines, if such connections are not shown on the Approved Plans,
may only be made in the event that (i) the Owner of a Parcel benefiting from the sewer line easement (a
"Grantee Parcel") makes at its sole expense any and all improvements to the sewer lines and systems
(including, without limitation, any lift stations) as are necessary or required in order to increase the
capacity of the sewer lines and systems to adequately serve the Grantee Parcel pursuant to plans and
specifications that comply with the requirements of all Governmental Regulations and that are first
approved by the Consenting Owners and the Owner of the Parcel burdened by the sewer line easement (a
"Grantor Parcel"), (ii) the Owner of the Grantee Parcel procures all permits, licenses and approvals and
pays any and all tap-on or similar fees required to make any such improvements and to so utilize and
10
Instxument# 2008001223 Book 727 Page 1754
connect with such sewer lines and systems, and (iii) the Owner of the Grantee Parcel pays. for increased
costs of maintenance and repair due to such development work. Notwithstanding the preceding sentence,
so long as a Consenting Owner complies with the requirements of all Governmental Regulations, such
Consenting Owner will not be required to obtain the approval of the Owner of the Grantor Parcel as set
forth in subsection (bxi) above.
(c) At any time and from time to time an Owner shall have the right to install, repair,
maintain and/or relocate on its Parcel any Utility Line installed (or to be installed) pursuant to the
foregoing grant of easement which is then located (or to be located) on the Parcel of such Owner,
provided that (i) in the case of an installation or relocation, such installation or relocation shall be
performed only after thirty (30) days' notice in writing of the Owner's intention to undertake the
relocation shall have been given to the Owner of each Parcel served by the Utility Line, (ii) in the case of
a repair and/or maintenance, such repair and/or maintenance shall be performed only after ten (10) days
notice in writing of the Owner's intention to undertake repair and/or maintenance shall have been given
to the Owner of each Parcel served by the Utility Line, except in the case of an emergency (defined as
any situation where there is an imminent threat of harm to persons or property), when such notice shall
be given a reasonable period in advance of such emergency repair as is practicable, (iii) any such repair,
maintenance and/or relocation shall not unreasonably interfere with or diminish utility service to the
Parcels served by the Utility Line, (iv) any such repair, maintenance and/or relocation shall not reduce or
unreasonably impair the usefulness, capacity or function of the Utility Line, (v) any such repair,
maintenance and/or relocation shall be performed without cost or expense to the Owner or Occupant of
any other Parcel, (vi) any such repair, maintenance and/or relocation shall provide for the original and
relocated area (if applicable) to be restored using materials and design standards which equal or exceed
those originally used, (vii) any such repair, maintenance and/or relocation shall not interfere with the
business operation of any of the Owners or Occupants of the Shopping Center, (viii) if an electrical
line/computer line/telephone line is being relocated, the grantor and grantee shall coordinate such
interruption to eliminate any detrimental effects (provided, however, that if the relocation of such line
affects the Home Depot Parcel, the Wal-Mart Parcel, or the Developer Parcel, the Owner of such Parcel
may in its sole discretion disapprove of such relocation). The Owner performing such relocation shall
provide as-built plans for all such relocated Utility Lines to the Owners of all Parcels served by such
Utility Lines within thirty (30) days after the date of completion of such relocation.
(d) The terms and provisions of Section 3.1 and 3.3 shall survive the expiration or
earlier termination of this Agreement.
3.4. Signs: Each Owner, as grantor, hereby grants to each other Owner, as grantee, for the
benefit of each Parcel belonging to the other Owners, a non-exclusive easement under, through and
across the Common Area of the grantor's Parcel(s) for the installation, operation, maintenance, repair and
replacement of the free-standing signs referred to in Section 4.3 of this Agreement and all Utility Lines
appurtenant thereto. No signage (temporary or otherwise, including, but not limited to, an electronic
marquee) with respect to Persons who are not Owners or Occupants shall be permitted on any Center
Pylon Signs or within the Shopping Center, except, if Developer elects to grant signage rights to the
Adjacent 17 Acres within the Common Area of the Developer Parcel, provided that such grant shall not
interfere with the signage or display rights of Home Depot, Wal-Mart, or Developer in the Shopping
Center or the visibility of the Center Pylon Signs.
3.5. Dedication to Public Entities: Without the prior written consent of the Consenting
Owners, which consent may be granted or withheld in the sole and absolute discretion of each
Consenting Owner, no Owner shall grant any easement for the benefit of any property not within the
Instri, nt# 2008001223 Book 727 Page 1755
Shopping Center except the Adjacent 17 Acres as herein permitted; provided, however, that the foregoing
shall not prohibit the granting or dedicating of easements by an Owner on its Parcel to governmental or
quasi-governmental authorities or to public utilities to service the granting Owner's Parcel.
3.6. No Merger: Notwithstanding an Owner's ownership of more than one Parcel, the
easements granted hereunder shall burden and benefit each Parcel individually, without merger as a result
of such common ownership, and upon conveyance of a Parcel so that such Parcel ceases to be under
common ownership, neither the Owner conveying said Parcel nor the Owner acquiring said Parcel shall
need to execute additional documentation to evidence the existence of said easements, and said
easements shall relate back to and shall be deemed to have been created as of the date this Agreement is
recorded in the office of the recorder of the county in which the Shopping Center is located.
3.7. Permanent Drive: Unless otherwise approved in writing by the Consenting Owners,
which approval may be withheld in each Consenting Owner's sole and absolute discretion, Permanent
Drives shall not be materially altered or modified in a manner which would be materially detrimental to
any Parcel.
3.8. Storm Drainage and Detention Easements:
3.8.1. Each Owner hereby grants and conveys to each other Owner owning an adjacent Parcel
the perpetual right and easement to discharge surface storm water drainage and/or runoff from the
grantee's Parcel over, upon and across the Common Area of the grantor's Parcel, upon the following
conditions and terms: (i) the grades and the surface water drainage/retention system for the Shopping
Center shall remain in strict conformance with the Approved Plans, and (ii) no Owner shall alter or
permit to be altered the surface of the Common Area or the drainage/retention system constructed on its
Parcel if such alteration is not in conformance with the Approved Plans or would materially increase the
flow of surface water onto an adjacent Parcel either in the aggregate or by directing the flow of surface
water to a limited area. All surface water collection, retention and distribution facilities shall be deemed a
Utility Line. All drains, gutters, downspouts, berms, swales, and other drainage facilities and systems
(collectively, "Systems") shall be maintained by each Owner, with respect to the portion of each such
System located upon an Owner's Parcel, in a neat, orderly, safe and sanitary condition, and in such a
manner as to facilitate the orderly discharge of water by means thereof.
3.8.2. The Owner of each Parcel hereby grants and conveys to the Owner of the other Parcels,
as an appurtenance to the other Parcel(s), a perpetual, non-exclusive right and easement to drain storm
water run-off from the other Parcel(s) onto and across the burdened Parcel, including the right to use and
impound storm water within the storm water detention or retention facility, if any, to be located on the
Parcel of another Owner ("Retention Pond") provided such is in accordance with the Approved Plans and
to construct, subject to Section 33(a), the Utility Lines to drain to the Retention Pond. Subject to
compliance with Section 10.2 hereof, the Owners of each Parcel grants to the Owner of the other Parcels
a perpetual, non-exclusive right, but not an obligation, and easement in, to, over, under and across the
burdened Parcel to maintain, repair, and replace storm drainage lines, pond and systems from the
benefited Parcel onto and across that portion of the burdened Parcel as is necessary to use the Retention
Pond provided such is in accordance with the Approved Plans. The Owner of the Wal-Mart Parcel
agrees to reimburse to the Owner of the Developer Parcel, on an annual basis, a proportionate amount of
the cost (including reasonable administrative expenses) of maintaining the Retention Pond on the
Developer Parcel into which the Wal-Mart Parcel drains storm water. The proportionate amount shall be
computed by calculating the relative square footage of Buildings upon the Parcels draining into said
Retention Pond and multiplying such proportion by the cost of maintenance. Developer shall indemnify,
defend, protect and hold Wal-Mart and its respective officers, directors, shareholders, employees and
12
Instri, nt# 2008001223 Book 727 Page 1756
agents harmless for, from and against any and all damages arising out of Wal-Mart's use of the Retention
Pond on the Developer Parcel unless such damage or destruction is caused by the negligent or willful acts
or omissions of Wal-Mart or unless such damage or destruction is caused by contamination which was
not pre-existing as of the date of this Agreement emanating from the Wal-Mart Parcel. Further,
Developer agrees to indemnify defend, protect and hold Wal-Mart and Home Depot and their respective
officers, directors, shareholders, employees and agents harmless for, from and against any and all
damages arising out of its construction and design of the Retention Pond and its related facilities,
including any and all storm basins, bio-retention basins and sand filters.
3.8.3. Any alteration in the natural water flow which may occur as a natural consequence of
normal construction activities and the existence of permitted improvements upon a Parcel including those
shown on the Site Plan (including without limitation building and building expansions, curbs, drives and
paving) shall be permitted.
3.9 Encroachment: In the event that building wall footings encroach from one Parcel onto another
Parcel, despite reasonable efforts to avoid such encroachment the Owner of the Parcel upon which the
encroachment is located shall cooperate in granting an encroachment license or easement to the Owner of
the Parcel whose building encroaches.
4. OPERATION OF COMMON AREA
4.1. Parking:
(a) There shall be no charge for parking in the Common Area without the prior
written consent of the Consenting Owners or unless otherwise required by law. Notwithstanding
anything to the contrary herein, each party shall use reasonable efforts to ensure that customers and
invitees shall not be permitted to park on the Common Areas except while shopping or transacting
business in the Shopping Center. The parking area on each Parcel shall contain sufficient ground level
parking spaces (exclusive of parking spaces used for cart corrals and/or recycle centers) in order to
comply with the following minimum requirements, without reliance on parking spaces located on any
other Parcel:
(i) At least the minimum parking ratio as required by the governing
regulation or ordinance, without the need for a parking variance on the Home Depot Parcel unless a
Restaurant is located thereon in which event the parking ratios set forth in (iii) below shall govern;
(ii) At least the minimum parking ratio as required by the governing
regulation or ordinance, without the need for a parking variance on the Wal-Mart Parcel unless a
Restaurant is located thereon in which event the parking ratios set forth in (iii) below shall govern;
(iii) At least a minimum parking ratio of 15.0 for each one thousand (1,000)
square feet of Floor Area for a McDonald's or any Restaurant of five thousand (5,000) or greater square
feet of Floor Area operating on the Developer Parcel; at least a minimum parking ratio of 8.0 for each
one thousand (1,000) square feet of Floor Area for any Restaurant with less than five thousand (5,000)
square feet of Floor Area operating on the Developer Parcel; and at least a minimum parking ratio of 5.0
parking spaces for each one thousand (1,000) square feet of Floor Area for any other use on Developer
Parcel;
(iv) At least a minimum parking ratio of 15.0 for each one thousand (1,000)
square feet of Floor Area for a McDonald's or any Restaurant of five thousand (5,000) or greater square
13
Instril nt# 2008001223 Book 727 Page 1757
feet of Floor Area operating on the Outparcel 1; at least a minimum parking ratio of 8.0 for each one
thousand (1,000) square feet of Floor Area for any Restaurant with less than five thousand (5,000) square
feet of Floor Area operating on the Outparcel 1 Parcel provided, however, a business whose primary
operation includes the sale of coffees, teas and other similar beverages (including but not limited to
Starbuck's, Caribou Coffees, Seattle's Best or similar "coffee shop") shall not be deemed a Restaurant
use for purposes of this provision; and at least a minimum parking ratio of 5.0 parking spaces for each
one thousand (1,000) square feet of Floor Area for any other use on Outparcel I Parcel. At least the
minimum parking ratio as required by the governing regulation or ordinance shall be required on
Outparcel 3 and 4, individually;
(v) If a business use contains a drive-up or drive-thru unit (such as a remote
banking teller or food ordering/dispensing facility, (but specifically excluding the customer loading areas
located on the Home Depot Parcel and the Wal-Mart Parcel and excluding the Pharmacy Drive Up on the
Wal-Mart Parcel) and exclusive of any business on Outparcel 3 or 4 then there shall also be created space
for stacking not less than three (3) automobiles (exclusive of any drive-aisle) for each drive-up unit;
(b) If an Owner or Occupant operates a Restaurant incidentally to its primary
business purpose, then so long as such incidental operation continues, the portion of the Floor Area
occupied by such Restaurant shall be excluded from the application of subsections (iii), (iv), and (v) and
(vi) above. For purposes of this clause only, a Restaurant shall be an "incidental operation" if it occupies
less than seven percent (7%) of the Occupant's Floor Area and does not have a separate customer
entry/exit door to the outside of the Building. In the event an Occupant utilizes Floor Area for both
Restaurant and retail purposes, and such Restaurant purpose is not an "incidental operation", only the
portion of Floor Area allocated for Restaurant purposes shall be subject to the application of subsections
(v) and (vi) above.
(c) If the minimum number of parking spaces required by Governmental Regulations
is greater than the minimum requirements set forth above, then the minimum number of parking spaces as
required by Governmental Regulations shall control. If the maximum parking spaces permitted by
Governmental Regulations is less than the minimum requirements set forth above, then the maximum
number permitted by Governmental Regulations shall control.
(d) In the event of a condemnation of part of a Parcel or sale or transfer in lieu
thereof that reduces the number of usable parking spaces below that which is required in this Section 4. 1,
the Owner whose Parcel is so affected shall use its best efforts (including, without limitation, using
proceeds from the condemnation award or settlement) to restore and/or substitute parking spaces in order
to comply with the parking requirements set forth in this Section 4.1. If such compliance is not possible,
the Owner whose Parcel is so affected shall not be deemed in default hereunder, but such Owner shall
not be permitted to expand the amount of Floor Area located upon its Parcel. If such Floor Area is
thereafter reduced other than by casualty, the Floor Area on such Parcel may not subsequently be
increased unless the parking requirement is satisfied.
4.2. Employee Parking: Anything in this Agreement to the contrary notwithstanding, areas to
be used for motor vehicle parking by employees of Occupants of the Shopping Center shall be in the
areas designated on the Site Plan as "Employee Parking Area." In the event employee parking areas are
designated as provided herein, employees of any Owner or Occupant of any part of the Shopping Center
shall use only those portions of the Common Area designated for such motor vehicle parking purposes. In
no event shall any employees of any business other than the businesses conducted on a particular Parcel
park on that particular Parcel.
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Instrument# 2008001223 Book 727 Page 1758
4.3. Signs:
(a) No free-standing, permanent sign structures other than the Center Pylon Signs,
signs described in Section 4.3(b) below, or small directional signs may be erected or maintained in the
Shopping Center by any Panty. The Owner of the Home Depot Parcel shall have the top designation on
the Center Pylon Sign located along Main Street (aka U.S. 23 Business) (the "Main Street Center Pylon
Sign"). The Owner of the Wal-Mart Parcel shall have the second highest designation on the Main Street
Center Pylon Sign. The Owner of the Wal-Mart Parcel shall have the top designation on the Center
Pylon Sign located along Hyatt Creek Road (the "Hyatt Center Pylon Sign" which together with the Main
Street Center Pylon Sign are referred to as the "Center Pylon Signs"). The Owner of the Home Depot
Parcel shall have the second highest designation on the Hyatt Center Pylon Sign. The Developer shall
have the right to designate the third position, as well as any additional signage on the Center Pylon Sign.
Developer shall initially construct the Center Pylon Signs and the Owner of the Wal-Mart Parcel and the
Owner of the Home Depot Parcel shall each reimburse Developer for a proportionate share of the cost
thereof based upon the proportion of each Owner's square footage as shown on Exhibit C as such may be
modified by the parties in the Development Agreement - Home Depot and/or the Development
Agreement - Wal-Mart. The cost of maintaining, insuring, repairing and replacing the Main Street Center
Pylon Sign(s) structure (including electrical hookup to a common meter) shall be paid by the Owner of
the Home Depot Parcel. The cost of maintaining, insuring, repairing and replacing the Hyatt Center
Pylon Sign(s) structure (including electrical hookup to a common meter) shall be paid by the Owner of
the Wal-Mart Parcel. The Owner of the Home Depot Parcel and the Owner of the Wal-Mart Parcel shall
be entitled to be reimbursed for such costs by the Owners of all Parcels entitled to display designations
thereon in the proportion that the total square footage of each Owner's designation or designations bears
to the total square footage of all designations entitled to be displayed thereon. Each Person displaying a
designation on a Center Pylon Sign shall supply and maintain its own sign fascia and can. The design of
the Center Pylon Sign structures shall be as shown on Exhibit C hereto or as otherwise approved by the
Consenting Owners. Any changes shall be subject to the approval of the Consenting Owners. Once
constructed, no freestanding sign may be constructed, taken down, altered or modified without the prior
written approval of each of the Consenting Owners.
(b) Provided the signage otherwise permitted by Governmental Regulations to the
Owner of the Home Depot Parcel and on the Center Pylon Sign(s) is not adversely affected thereby, each
Outparcel may have, subject to Governmental Regulations, one free-standing, permanent monument sign
structure (not to exceed 6' in height) on said Outparcel, at the location designated on the Site Plan. Such
sign structure shall display a single designation for an Occupant of the Outparcel. The initial design of
the sign structure (including, without limitation, height and size) shall conform to the sign drawings and
criteria attached hereto as Exhibit "C-I" and incorporated herein. The cost of constructing, installing,
maintaining, insuring, operating, repairing and replacing such sign structure and sign fascia shall be paid
by the applicable Owner of the Outparcel upon whose Parcel such monument sign is located. If more
than one Occupant of the Shopping Center is designated on a sign structure located on an Outparcel, the
Owner of the Outparcel shall be responsible for the cost of constructing, installing, maintaining, insuring,
operating, repairing and replacing the sign structure (including electrical hookup to a common meter),
and such Owner of the Outparcel shall be reimbursed by the Owners of all other Parcels displaying
designations on the sign structure located on such Outparcel in the proportion that the total square
footage of each Owner's designation or designations bears to the total square footage of all designations
displayed thereon.
(c) Except as set forth in subsections (a) and (b) above, or otherwise approved by
the Consenting Owners, all signs on the Outparcels shall conform with the following standards:
15
Instrument# 2008001223 Book 727 Page 1759
(i) All exterior Building signs shall be restricted to identification of the
business or service located or provided therein.
(ii) No exterior Building or free-standing sign shall utilize flashing, moving
or audible lights or appurtenances.
(iii) No signs shall obstruct, visually or otherwise, the ingress and egress
shown on Exhibit A.
4.4. Protection of Common Area: Each Owner and Occupant shall have the right to take such
steps as it deems necessary to prevent those Persons not authorized by this Agreement to use the
Common Area from using the Common Area for ingress, egress, parking or any other purpose. Subject to
Governmental Regulations, such steps shall include, without limitation, the construction of fences, walls
or barricades along the boundary lines of any portion of the Shopping Center except along the common
boundary line of any Parcel with any other Parcel; provided, however, that any impairment of vehicular
access to or from the Shopping Center, or any part thereof, shall require the Consenting Owners' prior
written approval, which may be withheld in such Consenting Owners' sole and absolute discretion.
4.5. Changes to Common Area:
(a) Except as expressly permitted by this Agreement, no other improvements shall
be placed in the Common Area without the prior written approval of the Consenting Owners except (i)
Service Areas in accordance with the requirements of paragraph (b) below, (ii) public pay telephones
provided their location has been approved in writing by the Owner in such Owner's sole discretion on
whose Parcel such will be located, (iii) temporary booths, stands, displays, tents or other structures or
equipment used for sales in the parking area on the Home Depot Parcel and the Wal-Mart Parcel in the
areas designated within the Site Plan for Seasonal Sales. Persons using the Commons Area in
accordance with this Agreement shall not be charged any fee for such use. Each Owner agrees that to the
extent permitted by law the Owner will not consent to the utilization of its Property for rallies,
demonstrations, protests, picketing, or handbilling to protest, publicize, or allege improprieties regarding
the actions, policies or operating practices of any business operating within the Shopping Center.
(b) The sizes and arrangements of Common Area improvements may not be
materially changed without the Consenting Owners' prior written approval. A Consenting Owner may
withhold its consent to any material change to the entrances or exits to or from the Shopping Center or to
any changes in the parking configuration or traffic circulation in its sole and absolute discretion. Except
as otherwise provided herein, a_Consenting Owner shall not unreasonably withhold, condition or delay its
consent to changes in the Common Area improvements provided that the parking complies in all respects
with Section 4.1. Nothing in this Section 4.5 shall be interpreted to require the Consenting Owners'
approval to (i) the construction, alteration or relocation of any Service Areas to the extent that they are
located, and do not impede access, to the rear or sides of Buildings, or (ii) the location or relocation of
items which are permitted to be placed in the Common Area without consent pursuant to paragraph
(axiii) above.
5. RESTRICTIONS ON USE
5.1 Home Improvement Store Restrictions: As long as a home improvement store is being
operated upon the Home Depot Parcel no portion of the Shopping Center, except for the Home Depot
Parcel and Wal-Mart Parcel, shall be used for a home improvement center or for any business which
sells, displays, leases, rents or distributes the following items or materials, singly or in any combination:
16
Instril nt# 2008001223 Book 727 Page 1760
lumber, hardware, tools, plumbing supplies, pool supplies, electrical supplies, paint, kitchen or
bathrooms or components thereof (including tubs, sinks, faucets, mirrors, cabinets, showers, vanities,
countertops and related hardware), windows, hard and soft flooring (including tile, wood flooring, rugs
and carpeting), siding, ceiling fans, gardening and garden nursery supplies, outdoor cooking equipment
and accessories, patio furniture and patio accessories, Christmas trees, indoor and outdoor lighting
systems and light fixtures, kitchen and household appliances, except for the incidental sale of such items.
An "incidental sale of such items" is one in which there is no more than the lesser of (i) five percent (5%)
of the total Floor Area of such business, or (ii) 1,000 square feet of sales and/or display area, relating to
such items individually or 2,500 square feet in the aggregate.
5.2. Wal-Mart Restrictions: Wal-Mart Restrictions: As long as Wal-Mart, or any affiliate of
Wal-Mart, is the operator of the Wal-Mart Parcel, either as owner or lessee, no portion of the Shopping
Center, except the Wal-Mart Parcel and the Home Depot Parcel, shall be leased or occupied by or
conveyed to any other party for use as (i) a membership warehouse club, (ii) a discount department store
or other discount store, as such terns are defined below, (iii) a variety, general or "dollar" store in excess
of five thousand (5,000) square feet, (iv) a grocery store or supermarket as such terms are defined below,
(v) a pharmacy, or (vi) as any combination of the foregoing uses. In the event of a breach of this
covenant, Wal-Mart shall have the right to seek any and all remedies afforded by either law or equity,
including, without limitation, the rights to injunctive relief in accordance with Section 10 hereof.
"Grocery store" and "supermarket", as those terms are used herein, shall mean a food store or a food
department containing more than 10,000 square feet of building space used for the purpose of selling
food for off premises consumption, which shall include but not be limited to the sale of dry, refrigerated
or frozen groceries, meat, seafood, poultry, produce, delicatessen or bakery products, refrigerated or
frozen dairy products, or any grocery products normally sold in such stores or departments. "Discount
department store" and/or "discount store", as those terms are used herein, shall mean a discount
department store or discount store containing more than 35,000 square feet of building space used for the
purpose of selling a full line of hard goods and soft goods (e.g. clothing, cards, gifts, electronics, garden
supplies, furniture, lawnmowers, toys, health and beauty aids, hardware items, bath accessories and auto
accessories) at a discount in a retail operation similar to that of Wal-Mart.
5.3. Shopping Center Restrictions:
(a) No portion of the Shopping Center shall be used for any of the following
purposes: a flea market or a business selling so-called "second hand" goods (the term "second hand"
shall mean stores which sell goods primarily as a service to the public rather than to a retail customer for
a profit); a surplus store; a gun range; the sale of guns as a primary use; car wash facility (except on the
Home Depot Parcel); a warehouse; an animal kennel; auditorium; sports or entertainment viewing facility
(whether live, film, audio visual or video); a movie theater; bowling alley; skating rink; fitness center,
workout facility, exercise facility, gym or health spa or studio in excess of ten thousand (10,000) square
feet; cafeteria, restaurant, which derives more than fifty percent (50%) of their gross sales from alcohol
sales; cemetery; mortuary; any establishment engaged in the business of selling, exhibiting or delivering
pornographic or obscene materials; a so-called "head shop"; off-track betting parlor; junk yard; recycling
facility or stockyard; motor vehicle or boat dealership, repair shop (including lubrication and/or service
center) that stores vehicles outdoors overnight, except for a tire and battery operation upon the Wal-Mart
Parcel in conjunction with its general merchandising use, body and fender shop, or motor vehicle or boat
storage facility (neither the foregoing restriction nor anything else in this Agreement to the contrary shall
preclude the Owner of the Home Depot Parcel's sale or rental of delivery vehicles and trailers to its
customers as part of its home improvement business); a mini-storage or self-storage facility; a laundromat
or dry-cleaning facility (but this shall not be deemed to prohibit nominal supportive facilities for on-site
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Instri, nt# 2008001223 Book 727 Page 1761
service oriented to pickup and delivery by the ultimate consumer); a bar, tavern or cocktail lounge; a
discotheque, dance hall, comedy club, night club or adult entertainment facility; billiard or pool hall;
massage parlor, game parlor or video arcade (which shall be defined as any store containing more than
three (3) electronic games); a beauty school, barber college, reading room, place of instruction or any
other operation catering primarily to students or trainees and not to customers (but shall specifically not
prohibit a school which is incidental to a primary retail purpose or an instructional use such as Weight
Watchers); office usage other than incidental in connection with non-prohibited uses; industrial,
residential or manufacturing uses, school or house of worship.
(b) Without the prior written consent of the Consenting Owners, the following shall
not be allowed to operate in the Shopping Center or Common Area, except as otherwise permitted in this
Agreement: traveling carnivals, fairs, auctions, shows, kiosks, booths for the sale of fireworks, sales by
transient merchants utilizing vehicles or booths and other promotions of any nature. Except as otherwise
permitted in this Agreement, in the event that unauthorized Persons, including without limitation tenants
or invitees of tenants occupying Buildings now or at any future time located in the Shopping Center,
utilize the parking area for other than temporary parking by customers while shopping in the Shopping
Center, any Consenting Owner may take whatever action as shall be necessary to prevent said
unauthorized use. Notwithstanding the foregoing none of the aforementioned uses shall be permitted
upon an Outparcel without the consent of the Owner of said Outparcel and the Consenting Owner.
(c) No portion of the Shopping Center shall be used for a business or use which
creates strong, unusual or offensive odors, fumes, dust or vapors; emits noise or sounds which are
objectionable due to intermittence, beat, frequency, shrillness or loudness; creates unusual fire, explosive
or other hazards, or materially increases the rate of insurance for any other Parcel, Owner or Occupant;
provided however, the operation of a typical Home Depot home improvement store and the operation of a
typical Wal-Mart Superstore shall not be deemed to be in violation of this Section 5.2(c).
(d) No oil development operations, oil refining, quarrying or mining operations of
any kind shall be permitted upon or in any portion of the Parcels, nor shall oil wells, tanks, tunnels, or
mineral excavation or shafts be permitted upon the surface of any portion of the Parcels, or within five
hundred (500) feet below the surface of any of the Parcels. No derrick or other structure designed for use
in boring for water, oil, natural gas or other minerals shall be erected, maintained or permitted on any
portion of the Shopping Center.
(e) No portion of the Common Area shall be used for the sale, storage or display of
merchandise or food; provided, however, that (i) the display of delivery vehicles for sale and/or rental to
its customers as part of the Owner of the Home Depot Parcel's home improvement business shall be
permitted, (ii) the seasonal sale of merchandise by the Owner or Occupant of the Home Depot Parcel and
the Wal-Mart Parcel shall be permitted within the areas identified on the Site Plan for Seasonal Sales,
and (iii) the storage of merchandise in such areas on the Wal-Mart Parcel or the Home Depot Parcel shall
be permitted within the areas identified on the Site Plant for storage, Seasonal Sales or with Storage
Areas.
(f) For purposes of this Agreement, all Service Areas shall be the sole exclusive
property of the Owners of the Buildings associated with such areas and each Owner shall have the
exclusive right to use such areas for whatever purpose such Owner deems appropriate, including, without
limitation, the sale and display of merchandise.
(g) For purposes of this Agreement, Persons who are not Owners or Occupants
engaging in the following activities in any portion of the Common Area will not be considered to be
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Instri, nt# 2008001223 Book 727 Page 1762
Permittees under this Agreement: (i) exhibiting any placard, sign, or notice that does not advertise an
existing business in the Shopping Center; (ii) distributing any circular, handbill, placard, or booklet
promoting an existing business in the Shopping Center; (iii) soliciting memberships or contributions for
an existing business in the Shopping Center, (iv) parading, picketing, or demonstrating; and (v) failing to
follow regulations relating to the use of the Common Area.
(h) This Agreement is not intended to, and does not, create or impose any obligation
on a Party to operate, continuously operate, or cause to be operated a business or any particular business
in the Shopping Center or on any Parcel.
Nothing contained in this Section 5 shall be construed to restrict the operation of a typical Wal-
Mart on the Wal-Mart Parcel or a typical Home Depot on the Home Depot Parcel.
The foregoing restriction shall not limit the operating of a movie theatre, a fitness center, gym or
health spa in excess of 10,000 square feet, restaurant, hotel or motel, office building, place of instruction,
mini-storage or self storage facility upon the Adjacent 17 Acres.
6. MAINTENANCE STANDARDS
6.1. Maintenance Obligations: Each Owner shall, except as hereinafter provided, maintain at
its expense the Common Area (and the Improvements) on its Parcel at all times in good and clean
condition and repair and, where applicable, in compliance with the Brownfields Agreement, said
maintenance to include, without limitation, the following:
(a) Maintaining, repairing and resurfacing, when necessary, all paved surfaces in a
level, smooth and evenly covered condition with the type of surfacing material originally installed or
such substitute as shall in all respects be equal or superior in quality, use and durability; and restriping,
when necessary, to maintain clearly visible parking stall and traffic control lines;
(b) Removing all papers, debris, filth and refuse from the Common Area and
washing or thoroughly sweeping the Common Area to the extent reasonably necessary to keep the
Common Area in a clean and orderly condition, unobstructed, and if applicable, free from ice and snow;
(c) Placing, painting, maintaining, repairing, replacing and repainting, as and when
necessary, all directional signs, markers, striping and pedestrian crossings upon or within the Common
Area;
(d) Maintaining, repairing and replacing, when necessary, (i) Service Areas, and (ii)
traffic directional signs, markers and lines, and all informational signs such as "Handicapped Parking", in
good repair and condition;
(e) Operating, maintaining, repairing and replacing, when necessary, such artificial
lighting facilities as shall be reasonably required, including, but not limited to, poles, pole bases, wiring,
lamps, ballasts, lenses, photocells, time clocks, and contacts. Each Owner shall maintain and provide
electricity to all lighting fixtures attached to its respective Building(s) at its sole cost and expense;
(f) Maintaining all landscaped areas; replacing shrubs and other landscaping as
necessary;
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Instruntient# 2008001223 Book 727 Page 1763
(g) Maintaining, repairing and replacing, when necessary, all Common Area walls
(including, without limitation, all fences, walls or barricades constructed pursuant to Section 4.4 above);
(h) Maintaining, repairing and replacing, when necessary, all Common Area storm
drains, sewers, lift stations and other Utility Lines not dedicated to the public or conveyed to any public
or private utility which are necessary for the operation of the Buildings and Improvements located in the
Shopping Center; provided, however, the Owner shall not be responsible to, but may, pursuant to Section
33(c), maintain, repair and replace those certain Utility Lines (or portions thereof), except any line that
serves solely to supplement stormwater wetlands, if any, that serve exclusively Parcels other than the
Parcel on which the Utility Line requires such maintenance, repair or replacement;
(i) Performing itself or contracting with a competent third party or parties to
perform any of the services described herein;
(j) Maintaining commercial general liability insurance as set forth in Article 12
hereof,
(k) Keeping the Common Area and all common Utility Lines free from any
obstructions including those caused by the sale or display of merchandise, unless such obstruction is
permitted under the provisions of this Agreement; and
(l) Maintaining the Owner's entire Parcel, including without limitation its Buildings
and other Improvements, in compliance with the Brownfields Agreement and use restrictions.
All Parcels (including the Outparcels) shall be kept neat, orderly, planted in grass and trimmed
until improvements are constructed thereupon.
6.2. Duty to Maintain: Each Owner shall be responsible for the maintenance, insurance and
lighting of its own Parcel as enumerated in Section 6.1 above. In the event any Owner defaults in the
performance of such obligations, any other Owner may cause the performance of the obligations of the
defaulting Owner (except to the extent that such obligations relate to Buildings on the Wal-Mart Parcel
and the Home Depot Parcel pursuant to Section 6.1(m) above) and bill the defaulting Owner for the
expenses incurred. In such event, the notice and cure provisions and remedies of Sections 10.2, 11.1 and
11.2 shall apply.
6.3. Contribution to Maintenance of Railroad Crossing: Each Owner shall be responsible to
contribute annually to the railroad's reasonable cost to maintain the grade crossing (including signals and
crossbars) to the Shopping Center from Main Street. Each Owner shall be required to contribute a
proportionate amount of the railroad's reasonable maintenance cost based upon the square footage of the
buildings upon each Owner's Parcel as compared with the total square footage of buildings within the
Shopping Center. The Owner of the Developer Parcel shall collect the contribution upon receipt of
invoice from the railroad.
6.4. Indemnity Against Liens: Each Owner shall indemnify, defend, protect and hold all other
Owners and Occupants harmless for, from and against any and all Claims in connection with any and all
liens arising out of any work performed, materials furnished to or obligations incurred by such Owner in
connection with the operation and maintenance of the Common Area hereunder.
?. LIGHTING
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Instrument# 2008001223 Book 727 Page 1764
After completion of the Common Area lighting system on its Parcel, each Owner hereby
covenants and agrees to keep its Parcel fully illuminated each day from dusk to at least 11:00 p.m. unless
the Consenting Owners agree upon a different time. Each Owner further agrees to keep any exterior
Building security lights on from dusk until dawn. Either Owner may require another Owner to illuminate
its Parcel beyond the required hours set forth above provided the requesting party agrees to reimburse the
other Owner for said Owner's additional out of pocket utility costs for lighting beyond the hours required
above. During the term of this Agreement, each Owner grants an irrevocable license to each other Owner
for the purpose of permitting the lighting from one Parcel to incidentally shine on the adjoining Parcels.
All exterior lighting fixtures and facilities on any portion of the Shopping Center shall be as set forth in
the Approved Plans.
8. PAYMENT OF TAXES
8.1. Taxes and Assessments: Each Owner shall pay direct to the tax collector, prior to
delinquency, the real property taxes and other special taxes and assessments levied and assessed against
the Owner's Parcel, including the portion of the Common Area on such Owner's Parcel; subject, however,
to the right of any such Owner to contest the amount or validity of all or any, part of said taxes and
assessments.
8.2. Failure to Pay Taxes and Assessments: Each Owner shall indemnify, defend, protect and
hold all other Owners and Occupants harmless for, from and against any and all Claims in connection
with any and all liens arising out of the failure of an Owner to pay prior to delinquency, all taxes and
assessments described in Section 8.1 above.
9. SUCCESSORS AND ASSIGNS; LIMITATION ON RELEASE
This Agreement and the Easements and Restrictions created hereby shall inure to the benefit of
and be binding upon the Owners, their heirs, personal representatives, Occupants, successors and assigns,
and upon any Person acquiring a Parcel, or any portion thereof, or any interest therein, whether by
operation of law or otherwise, including without limitation any holder of a first lien on any portion of the
Shopping Center; provided, however, that if any Owner sells all or any portion of its interest in any
Parcel, and such Owner, then at such time as the selling Owner executes and delivers to the Consenting
Owners a written statement in which the name and address of the new Owner, the effective date of the
conveyance, the Parcel conveyed, and, if applicable, the name of a new Party who has taken the position
of a Consenting Owner as provided pursuant to the terms of this Agreement, such Owner shall thereupon
be released and discharged from any and all obligations as Owner in connection with the property sold by
it arising under this Agreement after the sale and conveyance of title but shall remain liable for all
obligations arising under this Agreement prior to the sale and conveyance of title. The new Owner of any
such Parcel or any portion thereof (including, without limitation, any Owner who acquires its interest by
foreclosure, trustee's sale or otherwise) shall be liable for all obligations arising under this Agreement
with respect to such Parcel or portion thereof after the date of sale and conveyance of title. Failure to
deliver any such written statement shall not affect the running of any covenants herein with the land, nor
shall such failure negate, modify or otherwise affect the liability of the new Owner pursuant to the
provisions of this Agreement, but such failure shall constitute a default by conveying Owner resulting in
continued liability hereunder.
10. DEFAULT
10.1. Default: In the event any Owner or Occupant fails to perform any other provision of this
Agreement, which failure continues for a period of thirty (30) days after receipt of written notice
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Instxument# 2008001223 Book 727 Page 1765
specifying the particulars of such failure, such failure shall constitute a default and any other Owner or
Prime Lessee may thereafter institute legal action against the defaulting Owner or Occupant for specific
performance, declaratory or injunctive relief, monetary damages or any other remedy provided by law;
provided, however, that the defaulting Owner or Occupant shall not be deemed to be in default if such
failure to perform cannot be rectified within said thirty (30) day period and such Owner or Occupant is
diligently proceeding to rectify the particulars of such failure and rectifies same within a period not to
exceed sixty (60) days; provided further, however, that in the event of an emergency, such failure shall be
deemed a default if such failure is not rectified in a period reasonable for the nature and circumstances of
such emergency (by way of example, but not as a limitation, the failure to promptly remove snow or
otherwise maintain the Common Area such that Owners, Occupants and Permittees can utilize the
reciprocal easements granted in Section 3.1 above shall constitute an emergency).
10.2. Self-Help: If an Owner or Occupant of any Parcel or Outparcel fails to perform any
provision of this Agreement, then, upon the expiration of the cure period provided in Section 10.1, and
upon an additional ten (10) days prior written notice (except that no additional notice shall be required in
an emergency), any Consenting Owner shall have the right, but not the obligation, to enter upon the
defaulting Owner's or Occupant's Parcel to cure such default for the account of and at the expense of the
Owner or Occupant of such Parcel. If a Consenting Owner exercises its self-help right, then, within ten
(10) days after receipt of an invoice from such Consenting Owner, the defaulting Owner and/or Occupant
shall reimburse to such Consenting Owner all costs reasonably incurred by the Consenting Owner in
curing such default, plus an administrative fee equal to ten percent (10%) of such costs. Furthermore, the
Consenting Owner shall have the right, if such invoice is not paid within said ten (10) day period, to
record a lien on the Parcel (including Outparcels) of the defaulting Owner and/or Occupant for the
amount of the unpaid costs incurred by the Consenting Owner pursuant to this Section 10.2 and the
administrative fee, together with accrued interest at the Default Rate.
10.3. Remedies Cumulative: In addition to the remedies set forth in this Agreement, each
Person entitled to enforce this Agreement shall be entitled to exercise all other remedies provided by law
or in equity to the same extent as if fully set forth herein word for word. No remedy herein conferred
upon, or reserved to any Person shall exclude any other remedy herein, by law or in equity, but each shall
be cumulative.
11. LIEN FOR EXPENSES OR TAXES
11.1. Effectiveness of Lien: The liens provided for in Section 10.2 above shall only be
effective when filed as a claim of lien against the defaulting Owner or Occupant in the office of the
recorder of the county in which the Shopping Center is located, signed and verified, which shall contain
at least:
(a) An itemized statement of all amounts due and payable pursuant hereto;
(b) A description sufficient for identification of that portion of the real property of
the defaulting Owner which is the subject of the lien;
(c) The name of the Owner or Occupant of the property which is the subject of the
lien; and
(d) The name and address of the Owner or Party recording the claim of lien.
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Instril nt# 2008001223 Book 727 Page 1766
The lien shall attach from the date a claim of a lien is recorded and may be enforced in any
manner allowed by law, including, but not limited to, by suit in the nature of an action to foreclose a
mortgage or mechanic's lien under the applicable provisions of the laws of the State in which the
Shopping Center is located. The Owner or Party who recorded the claim of lien shall release the claim of
lien once the costs and expenses secured by the lien have been paid in full.
11.2. Priority of Lien: The claim of lien, when so established against the real property
described in the claim of lien, shall be prior and superior to any right, title, interest, lien or claim which
may be or has been acquired or attached to such real property after the time of filing the claim of lien,
and shall be subordinate to any others. The claim of lien shall be for the use and benefit of the Person
curing the default of the Owner in default.
11.3. Contesting / Alternative Security: Any Owner that has a lien filed against its Parcel in
accordance with this Section 11 shall be entitled to have the lien immediately removed by the Owner
filing the lien upon the posting of cash or bond with the County Court of the County where the Shopping
Center is located in an amount equal to one hundred twenty five percent (125%) of the amount claimed in
the lien. Thereafter, such cash or bond shall be released only by agreement of the Owners of the Parcel
upon which the lien is imposed and the Owner that filed the lien or upon final judgment of a court of
competent jurisdiction over the dispute.
12. LIABILITY INSURANCE; INDEMNIFICATION
12.1. Liability Insurance:
(a) Each Owner shall maintain or cause to be maintained commercial general
liability insurance with broad form coverage insuring against claims on account of bodily injury or death,
personal and advertising injury, property damage or destruction, and contractual liability (i.e., exclusions
for liability assumed under contract must be deleted) that may arise from, or be related to (i) the conduct
of the Owner and/or Occupants, or (ii) the condition, use or occupancy of each Owner's Parcel (the
"Owner's Liability Insurance").
(b) The Owner's Liability Insurance shall be carried by an insurance company or
companies qualified to do business in the State in which the Shopping Center is located with a Best's Key
Rating Guide Property/Casualty (United States) rating of at least A- and a financial rating of VIII or
better (or a comparable standard under an international rating system), and have limits for bodily injury
to or personal injury to or death of any person, or more than one (1) person, or for damage to property, in
an amount of not less than Five Million and No/100 Dollars ($5,000,000.00) per occurrence. The
insurance required pursuant to this Section 12.1 shall be at least as broad as the most commonly available
ISO Commercial General Liability policy form CG 00 01 0798 and shall include the following
provisions: (i) the policy may not be canceled or reduced in amount or coverage below the requirements
of this Agreement, without at least thirty (30) days` prior written notice by the insurer to each insured and
additional insured; (ii) severability of interests; (iii) an act or omission of one of the insureds or
additional insureds which would void or otherwise reduce coverage shall not reduce or void the coverage
as to the other insureds; (iv) name all other Owners as additional insureds; and (v) endorsed to cover said
Owner's agreement to indemnify as set out in this Agreement. Each Owner agrees to furnish to any other
Owner requesting same evidence that: (i) such insurance is in full force and effect; (ii) the premiums
have been paid in full; and (iii) the appropriate parties are designated as additional insureds on ISO Form
CG 2026 1185. The Owners agree that such evidence being readily available on the Internet shall be a
satisfactory method of delivering such evidence. If not part of such policy, the Owner's Liability
Insurance shall have at least the following endorsements: (i) deleting any employee exclusion on personal
23
Instrument# 2008001223 Book 727 Page 1767
injury coverage; (ii) including coverage for injuries to or caused by employees; (iii) providing for blanket
contractual liability coverage (including all of an Owner's indemnity obligations contained in this
Agreement), broad form property damage coverage and products completed operations, owner's
protective and personal injury coverage; (iv) providing for coverage of employer's automobile non-
ownership liability; and (v) if the use of a Parcel includes the sale of alcoholic beverages, including
coverage for employer's liability, host liquor liability, liquor liability and so-called "dram shop" liability
coverage with a combined single limit of not less than Three Million and No/100 Dollars ($3,000,000.00)
per occurrence. The Owner's Liability Insurance shall be written on an "occurrence" basis form and not
on a "claims made" form. The insurance referenced in this Section 12.1 may be provided under (i) an
individual policy specifically covering such Owner's Parcel, (ii) a blanket policy or policies which
includes other liabilities, properties and locations of such Owner; so long as the amount and coverage of
insurance required to be carried hereunder is not diminished, (iii) a plan of self-insurance satisfying the
criteria set forth in Section 12.1(c) below, or (iv) a combination of any of the foregoing insurance
programs. To the extent any deductible is permitted or allowed as a part of any insurance policy carried
by an Owner in compliance with this Article 12, such Owner shall be deemed to be covering the amount
thereof under an informal plan of self-insurance; provided, however, that in no event shall any deductible
exceed one percent (1%) of an Owner's net worth unless such Owner complies with the requirements
regarding self-insurance pursuant to Section 12.1(c) below.
(c) Notwithstanding anything to the contrary herein, at all times during the term of
this Agreement, each party shall keep improvements on its property insured against loss or damage by
fire and other perils and events as may be insured against under the broad form of Uniform Extended
Coverage Clause in effect from time to time in the state in which the parties' respective properties are
located, with such insurance to be for the full replacement value of the insured improvements. The
owner of a Parcel or Outparcel (except for the Owner of the Wal-Mart Parcel and the Home Depot
Parcel) shall pay for any increase in the cost of insuring the improvements on the other Parcels or
Outparcels if such increase is due to the use by such owner or its tenant(s).
(d) Any insurance required to be maintained by an Owner individually as set forth in
this Section 12 may be maintained in whole or in part either under a plan of self-insurance, or from a
carrier which specializes in providing coverage to or for such Owner or its affiliates, or firms in the same
or related businesses if such Owner's net worth exceeds Five Hundred Million Dollars ($500,000,000.00)
as shown in its most recent audited financial statement, or if such Owner's financial statements are
reported on a consolidated basis with a parent corporation, then as certified by an officer of such Owner.
12.2. Insurance Coverage During Construction:
(a) Prior to commencing any construction activities within the Shopping Center,
each Owner or Occupant shall obtain or require its contractor to obtain and thereafter maintain, so long
as such construction activity is occurring, at least the minimum insurance coverages set forth below:
(i} Workers' compensation and employer's liability insurance:
(a) Worker's compensation insurance as required by any applicable
law or regulation.
(b) Employer's liability insurance in the amount of Five Million and
No/100 Dollars ($5,000,000.00) each accident for bodily injury, Five Million and No/100 Dollars
($5,000,000.00) policy limit for bodily injury by disease, and Five Million and No/100 Dollars
($5,000,000.00) each employee for bodily injury by disease.
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Instril nt# 2008001223 Book 727 Page 1768
(ii) General liability insurance: Commercial General Liability insurance
covering all operations by or on behalf of the general contractor, which shall include the following
minimum limits of liability and coverages:
(a) Required coverages:
(1) Premises and Operations;
(2) Products and Completed Operations;
(3) Contractual Liability insuring the indemnity obligations
assumed by contractor under the contract documents;
(4) Broad Form Property Damage (including Completed
Operations);
(5) Explosion, Collapse and Underground Hazards;
(6) Personal Injury Liability; and
(7) Builders Risk (in an amount sufficient to cover the
replacement cost of the Site Improvement Work and shall provide that, among other things, the insurer(s)
specifically recognize and insure the obligations undertaken by the Developer pursuant to this
Agreement)
(b) Minimum limits of liability:
(1) Five Million and No/100 Dollars ($5,000,000.00) per
occurrence.
(2) Five Million and No/100 Dollars ($5,000,000.00)
aggregate for Products and Completed Operations,
(3) Five Million and No/100 Dollars ($5,000,000.00)
general aggregate applied separately to the Shopping Center.
(iii) Automobile Liability Insurance: Automobile liability insurance (bodily
injury and property damage liability) including coverage for owned, hired, and non-owned automobiles,
with limits of liability of not less than One Million and No/100 Dollars ($1,000,000.00) combined single
limit each accident for bodily injury and property damage combined. The general contractor shall require
each of its subcontractors to include in their liability insurance policies coverage for automobile
contractual liability.
(iv) Umbrella/Excess Liability Insurance: The general contractor shall also
carry umbrella/excess liability insurance in the amount of Five Million and No/100 Dollars
($5,000,000.00). If there is no per-project aggregate under the Commercial General Liability policy, the
limit in this Subsection (iv) shall be Ten Million and No/100 Dollars ($10,000,000.00).
(b) If the construction activity involves the use of another Owner's Parcel, the
Owner of such other Parcel shall be added as an additional insured and such insurance shall provide that
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Instrument# 2008001223 Book 727 Page 1769
the insurance shall not be canceled, or reduced in amount or coverage below the requirements of this
Agreement without at least thirty (30) days' prior written notice to the insureds and each additional
insured. The form of additional insured endorsement shall be ISO Form CG 2026 1185. If such insurance
is canceled or expires, the constructing Owner shall immediately stop all work on or use of the other
Owner's Parcel until either the required insurance is reinstated or replacement insurance obtained. The
general contractor shall supply each Owner with certificate(s) of insurance with respect to all insurance
required by this Section 12.2.
12.3. Indemnification by Owners: Subject to the provisions of Section 13.4 below regarding
waiver of subrogation with respect to damage to property, each Owner shall defend, indemnify, protect
and hold the other Owners and Occupants harmless for, from and against any and all Claims in
connection with the loss of life, personal injury and/or damage to property (i) arising from or out of any
occurrence in or upon the indemnifying Owner's Parcel; (ii) occasioned by any negligent or willful act or
omission of the indemnifying Owner, its Occupants or their respective its agents, contractors, servants or
employees; or (iii) in connection with the failure to comply with the provisions of this Agreement. If an
Owner shall, without fault, be made a party to any litigation commenced by or against the Owner or
Occupants of another Parcel, or if an Owner shall, in its reasonable discretion, determine that it must
intervene in such litigation to protect its interest hereunder, the indemnifying Owner shall defend such
Owner using attorneys reasonably satisfactory to such Owner and shall pay all costs, expenses and
reasonable attorneys' fees and costs in connection with such litigation. An Owner shall have the right to
engage its own attorneys in connection with any of the provisions of this Section 12.3 or any of the
provisions of this Agreement, including, but not limited to, any defense of or intervention by such
Owner, notwithstanding any contrary provisions of the laws or court decisions of the state in which the
Shopping Center is located.
12.4. Each owner of any portion of the Shopping Center for itself and its property insurer
hereby releases the other owners of portions of the Shopping Center from and against any and all claims,
demands, liabilities or obligations whatsoever for damage to property or loss of rents or profits resulting
from or in any way connected with any fire or other casualty whether or not such fire or other casualty
shall have been caused by the negligence or the contributory negligence of the party being released or by
any agent, associate or employee of the party being released, this release being to the extent that such
damage or loss is covered by the property insurance which the releasing party is obligated hereunder to
carry, or, if the releasing party is not carrying that insurance, then to the extent such damage or loss
would be covered if the releasing party were carrying that insurance
13. PROPERTY DAMAGE AND EMINENT DOMAIN
13.1. Damage to Buildings: If any of the Buildings located on any Parcel are damaged or
destroyed by fire or other cause, the Owner of such Parcel shall promptly cause either (i) the repair,
restoration, or rebuilding of the Building so damaged or destroyed to a condition and an architectural
style existing immediately prior to the damage or destruction, (ii) the rebuilding of a completely new
Building within the Building Area and otherwise subject to the terms hereof, or (iii) the razing of any
damaged Building, the filling of any excavation, and performance of any other work necessary to put
such portion of the Shopping Center in a clean, sightly and safe condition. All Building Areas on which
Buildings are not reconstructed following a casualty or "Taking" (as defined in Section 13.5 below) shall
be (i) graded or caused to be graded by the Owner thereof to the level of the adjoining property and in
such a manner as not to adversely affect the drainage of the Shopping Center or any portion thereof, (ii)
covered by decomposed granite, gravel, sod, hydroseed or as otherwise permitted by Governmental
26
Instxument# 2008001223 Book 727 Page 1770
Regulations, and (iii) kept weed free and clean at the subject Owner's sole cost and expense until such
time as Buildings are reconstructed thereon.
13.2. Casualty Damage to Common Area: In the event any of the Common Area is damaged or
destroyed by any cause whatsoever, whether insured or uninsured, during the term of this Agreement, the
Owner upon whose Parcel such Common Area is located shall repair or restore such Common Area at its
sole cost and expense with all due diligence. Except to the extent limited by Section 13.4 below, in the
event such damage or destruction of Common Area is caused by the negligent or willful act of another
Owner, Occupant or third Person, the Owner obligated to make such repair or restoration reserves and
retains the right to proceed against such other Owner or third Person for indemnity, contribution or
damages.
13.3. Property Insurance: To assure performance of their respective obligations under Sections
13.1 and 13.2 above, the Owners of the respective Parcels shall cause to be carried causes of loss -
special form property insurance at least as broad as ISO Special Form Causes of Loss, CP 1030 0695, in
an amount not less than eighty percent (80%) of the full insurable replacement cost (excluding footings,
foundations or excavations) of all Buildings and improvements (including Common Area improvements)
on their respective Parcels, except if the Owner of said Parcel, or party responsible for any required
restorations, is permitted to "self insure" pursuant to Section 12.1(c). The insurance referenced in this
Section 13.3 may be provided under (i) an individual policy covering this location, (ii) a blanket policy or
policies which includes other liabilities, properties and locations of such Owner; so long as the amount
and coverage of insurance required to be carried hereunder is not diminished, (iii) a plan of self-
insurance satisfying the criteria set forth in Section 12.1(c) above, or (iv) a combination of any of the
foregoing insurance programs. To the extent any deductible is permitted or allowed as a part of any
insurance policy carried by an Owner in compliance with Article 13, such Owner shall be deemed to be
covering the amount thereof under an informal plan of self-insurance; provided, however, that in no event
shall any deductible exceed one percent (1%) of an Owner's net worth unless such Owner complies with
the requirements regarding self-insurance pursuant to Section 12.1(c) above. The Owner's property
insurance shall be carried by an insurance company or companies qualified to do business in the state in
which the Shopping Center is located with a Best's Key Rating Guide Property/Casualty (United States)
rating of at least A- and a financial rating of VIII or better (or a comparable standard under an
international rating system).
13.4. Waiver of Subrogation: The Owners and Occupants each hereby waive any rights one
may have against the other on account of any loss or damage occurring to an individual Owner or
Occupant, or its respective property, either real or personal, arising from any risk generally covered by
ISO Special Form Causes of Loss, CP 1030 0695 and from any risk covered by property insurance then
in effect. In addition, the Owners and Occupants, for themselves and on behalf of their respective
insurance companies, waive any right of subrogation that any insurance company may have against the
Owners and Occupants. It is the intent of the parties that with respect to any loss from a named peril
required to be covered under a policy of property insurance, the parties shall look solely to their
respective insurance company for recovery. The foregoing waivers of subrogation shall be operative only
so long as available in the state where the Shopping Center is situated, and provided further that no
policy of insurance is invalidated thereby.
13.5. Eminent Domain: In the event the whole or any part of the Shopping Center shall be
taken or damaged by right of eminent domain or any similar authority of law or any transfer in lieu
thereof (a "Taking"), the entire award for the value of the land and improvements so taken shall belong to
the Owner of the Parcel so taken or to such Owner's Lienholders or Occupants, as they may have agreed
27
Instru-nt# 2008001223 Book 727 Page 1771
between or among themselves, and in the absence of any such agreement, as provided by law, and no
other Owner shall have a right to claim any portion of such award by virtue of any interest created by this
Agreement. Any Owner of a Parcel which is not the subject of a Taking may, however, file a collateral
claim with the condemning authority over and above the value of the Parcel (or portion thereof) being so
taken to the extent of any damage suffered by such Owner resulting from the severance of the land or
improvements so taken. In the event of a partial Taking, the Owner of the portion of the Shopping Center
so taken shall restore the Improvements located on the Common Area of the Owner's Parcel as nearly as
possible to the condition existing prior to the Taking to insure the continued ingress/egress to, from and
between all areas of the Shopping Center to the extent reasonably feasible, without contribution from any
other Owner.
14. GENERAL PROVISIONS
14.1. Covenants Run With the Land: The terms of this Agreement and each Restriction and
Easement on each Parcel shall be a burden on that Parcel, shall be appurtenant to and for the benefit of
the other Parcels and each part thereof, and shall run with the land.
14.2. No Public Dedication: Nothing contained in this Agreement shall be deemed to be a gift
or dedication of any portion of the Shopping Center or of any Parcel or portion thereof to the general
public, or for any public use or purpose whatsoever, it being the intention of the parties that this
Agreement shall be strictly limited to and for the purposes herein expressed. An Owner shall have the
right to close, if necessary, all or any portion of the Common Area on its Parcel from time to time as may
be necessary, in the opinion of such Owner, to prevent a dedication thereof or the accrual of any rights of
the public therein.
14.3. Duration: Except as otherwise provided herein, the term of this Agreement shall be for
one hundred and one (101) years (the "Primary Period") from the date hereof. Notwithstanding the
foregoing, upon the expiration of the Primary Period, the term of this Agreement shall automatically
renew for successive periods of ten (10) years each (each such period being referred to as an "Extension
Period") unless, at least ninety (90) days prior to the date of expiration of the Primary Period or
Extension Period then in effect, the Consenting Owners deliver to the other Owners in the Shopping
Center written notice of termination, in which event, this Agreement shall automatically expire at the end
of the Primary Period or Extension Period then in effect. Upon termination of this Agreement, all rights
and privileges derived from and all duties and obligations created and imposed by the provisions of this
Agreement shall terminate and have no further force or effect; provided, however, that the termination of
this Agreement shall not limit or affect any remedy at law or in equity that an Owner may have against
any other Owner with respect to any liability or obligation arising or to be performed under this
Agreement prior to the date of such termination, and, provided further, that the access easements and the
rights and duties related thereto as provided in Section 3.1, the sign easements and the rights and duties
related thereto as provided in Sections 3.4 and 4.3, and the utility easements and the rights and duties
related thereto as provided in Section 3.3 shall continue in effect in perpetuity as to those access
easements, signs and utility lines actually in use at the time of the termination of this Agreement until
such time as such access easements, signs and utility lines are abandoned.
14.4. Injunctive Relief: In the event of any violation or threatened violation by any Person of
any of the Easements, Restrictions or other terms of this Agreement, any or all of the Owners and Prime
Lessees of the property included within the Shopping Center shall have the right to enjoin such violation
or threatened violation in a court of competent jurisdiction. The right of injunction shall be in addition to
all other remedies set forth in this Agreement or provided by law or in equity. Notwithstanding anything
28
Instril nt# 2008001223 Book 727 Page 1772
to the contrary herein, the enforcement provisions of this Section 14.4 shall not be applicable to the
provisions of Section 5 and Section 13 herein as they apply to the Owners of the Outparcels.
14.5. Modification and Termination: Notwithstanding the provisions of Section 14.6 below,
this Agreement may not be modified in any respect whatsoever or terminated, in whole or in part, except
with the consent of all of the Consenting Owners (and, if applicable, the Prime Lessees of a Consenting
Owner's Parcel) at the time of such modification or termination, and then only by written instrument duly
executed and acknowledged by all of the Consenting Owners and Prime Lessees and recorded in the
office of the recorder of the county in which the Shopping Center is located. No modification or
termination of this Agreement as provided herein shall adversely affect the rights of any senior
Lienholder unless such Lienholder consents in writing to the modification or termination. No
modification and/or termination of this Agreement shall be effective against any Owner of an Outparcel
unless and until such Owner has consented to the modification or termination.
14.6. Method of Approval: Unless otherwise provided in this Agreement, whenever approval,
consent or satisfaction (collectively, an "approval") is specifically required of an Owner pursuant to the
express terms of this Agreement (or any Exhibit hereto), it shall not be unreasonably withheld,
conditioned or delayed. Unless provision is made for a specific time period, approval or disapproval shall
be given within thirty (30) days after receipt of written request for approval. If an Owner neither
approves nor disapproves within the required time period, then the Owner requesting approval shall have
the right to send a second written request for approval. If such second request states on its face in all
capital letters that failure to respond thereto within ten (10) days shall be deemed approval, then the
failure to respond within such ten (10) day period shall constitute the approval of the Owner from whom
approval was requested. Except with respect to approvals which are deemed approved pursuant to the
preceding sentence, all approvals (including conditional approvals) and disapprovals shall not be
effective unless given or made in writing. If an Owner disapproves, the reasons therefor shall be stated in
reasonable detail in writing. An Owner's approval of any act or request by another Owner shall not be
deemed to waive or render unnecessary approval of any similar or subsequent acts or requests. Since the
submission of a proposed amendment to the Parties is not an item of "consent" or "approval", each Party
may consider any proposed amendment to this Agreement in its sole and absolute discretion without
regard to reasonableness or timeliness.
14.7. Multiple Owners: In the event an Owner sells its Parcel and becomes the Prime Lessee
thereon, said Prime Lessee is hereby appointed the entity to cast the vote or consent or give the consent
for said Parcel on behalf of the Owner thereof (except as otherwise required in Section 14.5) and is
hereby granted all of the rights and remedies granted to the Owner of said Parcel so long as it is the
Prime Lessee of said Parcel, anything in this Agreement to the contrary notwithstanding.
14.8. Estoppel Certificates: Any Owner may, at any time and from time to time, in connection
with the sale or lease of the Owner's Parcel, or in connection with the financing or refinancing of the
Owner's Parcel by bona fide mortgage, deed of trust or sale-leaseback made in good faith and for value,
deliver written notice to the other Owners requesting such Owners to execute certificates certifying that
to the best knowledge of the other Owners, (i) neither the requesting Owner nor any other Owner is in
default in the performance of its obligations under this Agreement, or, if a default is alleged, specifically
describing the nature and amount thereof, and (ii) confirming that this Agreement has not been amended
(or, if so, identifying the amendments), and is in full force and effect. Each Owner shall execute and
return such a certificate within thirty (30) days after receipt of a request therefore. The Owners
acknowledge that such certificates may be relied upon by transferees, mortgagees, deed of trust
beneficiaries and leaseback lessors. Such statement shall act as a waiver of any claim by the Person
29
Instrument# 2008001223 Book 727 Page 1773
furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to
the extent the claim is asserted against a bona fidc encumbrancer or purchaser for value without
knowledge of facts to the contrary of those contained in the statement and who has acted in reasonable
reliance upon the statement. The issuance of an estoppel certificate shall in no event subject the Person
furnishing it to any liability for the negligent or inadvertent failure of such Person to disclose correct
and/or relevant information (but it shall estop such person from making assertions contrary to those set
forth in the certificate for the period covered by the certificate), nor shall such issuance be construed to
waive any rights of the issuer to challenge acts committed by other Owners for which approval by the
Consenting Owners was required but not sought or obtained.
14.9. Breach Shall Not Permit Termination: It is expressly agreed that a breach of this
Agreement shall not entitle any Owner to terminate this Agreement, but such limitation shall not affect in
any manner any other rights or remedies which such Owner may have hereunder by reason of any breach
of this Agreement. Any breach of this Agreement shall not defeat or render invalid the lien of any
mortgage or deed of trust made in good faith for value, but this Agreement shall be binding upon and be
effective against any Owner whose title is acquired by foreclosure, trustee's sale or otherwise.
14.10. Notices:
(a) All notices given pursuant to this Agreement shall be in writing and shall be
given by facsimile, by personal delivery, by United States mail or United States express mail postage or
delivery charge prepaid, return receipt requested, or by an established express delivery service (such as
Federal Express or United Parcel Service), sent to the person and address or facsimile number designated
below or, in the absence of such designation, to the person and address shown on the then current real
property tax rolls of the county in which the Shopping Center is located. The Parties expressly agree that
notices given by attorneys on behalf of their client(s) in the manner provided in this subsection are
effective and recognized notice pursuant to this Agreement. All notices to Developer and the Owner of
the Home Depot Parcel shall be sent to the person and address set forth below:
Developer: Waynesville Commons Retail Associates, LLC
1765 Merriman Road
Akron, Ohio 44313
Attention: Executive Vice President - Real Estate
With a copy to: Amer Cunningham Co., L.P.A.
Attn: Andrew R. Duff, Esq.
159 S. Main Street, Suite 1100
Akron, OH 44308
Home Depot: Home Depot U.S.A., Inc.
2455 Paces Ferry Road
Atlanta, Georgia 30339-4024
Attention: Vice President- Real Estate Law Group
With a copy to: Home Depot U.S.A., Inc.
2455 Paces Ferry Road
Building C, 20s' Floor
Atlanta, Georgia 30339
Attention: Thomas K. Anderson, Esq. - Corporate Counsel
30
Instrument# 2008001223 Book 727 Page 1774
And a copy to: Hartman, Simons, Spielman & Wood, LLP
6400 Powers Ferry Road, Ste 400
Atlanta, Georgia 30339
Attention: Gil Burstiner, Esq.
Wal-Mart: Wal-Mart Stores, Inc. (Store No. 1663-02)
702 S. W. 8'h Street
Bentonville, AR 72716
Attn: Property Management, North Carolina
With a copy to: Wal-Mart Stores, Inc. (Store No. 1663-02)
Attn: James A. Cole, Esq.
2001 S.E. 19`h Street
Bentonville, AR 72716-0556
The Person and address to which notices are to be given may be changed at any time by any
Party upon written notice to the other Parties. All notices given pursuant to this Agreement shall be
deemed given upon receipt.
(b) For the purpose of this Agreement, the term "receipt" shall mean the earlier of
any of the following: (i) the date of delivery of the notice or other document to the address specified
pursuant to subparagraph (a) above as shown on the return receipt, (ii) the date of actual receipt of the
notice or other document by the person or entity specified pursuant to this Section, (iii) in the case of a
facsimile, the date and time of receipt as shown on the confirmation of the facsimile transmission; (iv) in
the case of refusal to accept delivery or inability to deliver the notice or other document, the earlier of
(A) the date of the attempted delivery or refusal to accept delivery, (B) the date of the postmark on the
return receipt, or (C) the date of receipt of notice of refusal or notice of non-delivery by the sending
party.
14.11. Waiver: The failure of a Person to insist upon strict performance of any of the
Restrictions or other terms and provisions contained herein shall not be deemed a waiver of any rights or
remedies that said Person may have, and shall not be deemed a waiver of any subsequent breach or
default in the performance of any of the Restrictions or other terms and provisions contained herein by
the same or any other Person.
14.12. Consent. In accordance with Section 1.2 (cc) hereof, for so long as a Prime Lessee exists
on any Parcel, the consent of the fee owner with respect to said Parcel is not required under this
Agreement.
14.13. Severability: If any term or provision of this Agreement or the application of it to any
person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement
or the application of such term or provision to persons or circumstances, other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement
shall be valid and shall be enforced to the extent permitted by law.
14.14. Not a Partnership: The provisions of this Agreement are not intended to create, nor shall
they be in any way interpreted or construed to create, a joint venture, partnership, or any other similar
relationship between the Parties. Each Party shall be considered a separate party and no Party shall have
31
Instrument# 2008001223 Book 727 Page 1775
the right to act as agent for another, unless expressly authorized to do so herein or by separate written
instrument signed by the Party to be charged.
14.15. Captions and Headings: The captions and headings in this Agreement are for reference
only and shall not be deemed to define or limit the scope or intent of any of the terms, covenants,
conditions or agreements contained herein.
14.16. Interpretation: Whenever the context requires construing the provisions of this
Agreement, the use of a gender shall include both genders, use of the singular shall include the plural,
and the use of the plural shall include the singular. The word "including" shall be construed inclusively,
and not in limitation, whether or not the words "without limitation" or "but not limited to" (or words of
similar importance) are used with respect thereto. The provisions of this Agreement shall be construed as
a whole and not strictly for or against any party. Unless otherwise provided, references to Articles and
Sections refer to the Articles and Sections of this Agreement.
14.17. Entire Agreement: This Agreement contains the entire agreement between the parties
hereto and supersedes all prior agreements, oral or written, with respect to the Easements, Restrictions
and other terms and conditions contained in this Agreement affecting the Parcels.
14.18. Joint and Several Obligations: In the event any party hereto is composed of more than
one person, the obligations of said party shall be joint and several.
14.19. In the event that any person or entity (the "Acquiring Party") shall acquire a fee or
mortgage interest in any tract subject to this Agreement, or any portion thereof, the Acquiring Party shall
execute and file in the land records of Haywood County, North Carolina, a statement setting forth the
name of the Acquiring Party, the address of the Acquiring Party to which all notices for the purposes of
this Agreement may be sent, the nature of the interest held by the Acquiring Party, and the date that such
interest was acquired (the "Notice Statement"). Contemporaneously with such filing, the Acquiring
Party shall also send by certified mail, return receipt requested, a copy of such Notice Statement to all
other persons or entities then holding fee or mortgage interests in any tract subject to this Agreement, or
any portion thereof, as reflected by the Notice Statements then of record in the land records of Haywood
County, North Carolina (the "Existing Interest Holders"). Until such time as an Acquiring Party files and
mails such Notice Statement in accordance with the terns of this Section 14.19 it shall not be entitled to
receive any notice required or permitted to be given under this Agreement, and the Existing Interest
Holders shall have no obligation to give any such notice to the Acquiring Party. Any change of address
shall require the filing and mailing of a new Notice Statement. It is understood and agreed that the
provisions of this Section 14.19 regarding the recordation of the Notice Statement are satisfied with
respect to Developer and Wal-Mart and Home Depot.
14.20. Recordation: This Agreement shall be recorded in the office of the recorder of the
County in which the Shopping Center is located.
14.21. Limitation on Liability: Except as specifically provided below, there shall be absolutely
no corporate or personal liability of persons or corporations who constitute an Owner hereunder,
including, but not limited to, officers, directors, employees or agents thereof, with respect to any of the
terms, covenants, conditions and provisions of this Agreement. In the event of a default of an Owner
hereunder, the Owner who seeks recovery from such Owner shall look solely to the interest of such
Owner in such Consenting Owner's Parcel for the satisfaction of each and every remedy of the non-
defaulting Owner, provided, however, the foregoing shall not in any way impair, limit or prejudice the
right of any Owner (i) to pursue equitable relief in connection with any Restriction of this Agreement,
32
Instrument# 2008001223 Book 727 Page 1776
including a proceeding for a temporary restraining order, preliminary injunction, permanent injunction or
specific performance; and (ii) to recover from such Owner all losses suffered, liabilities incurred or costs
imposed arising out of or in connection with, or on account of, an Owner's breach of its obligation to
carry Owner Liability Insurance, or to fund its self-insurance obligation, if applicable.
14.22. Lienholder Protection: This Agreement and the Easements and Restrictions established
hereby with respect to each Owner and Parcel (except for lien rights under Section 11 hereof), shall be
superior and senior to any lien placed upon any Parcel, including the lien of any mortgage or deed of
trust. Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the
lien of any mortgage or deed of trust made in good faith and for value, but all the Easements and
Restrictions and other provisions, terms and conditions contained in this Agreement shall be binding
upon and effective against any Person (including, but not limited to, any mortgagee or beneficiary under
a deed of trust) who acquires title to any Parcel or any portion thereof by foreclosure, trustee's sale, deed
in lieu of foreclosure, or otherwise.
14.23. Variances: Where appropriate, the Consenting Owners may, in their sole and absolute
discretion, grant written variances to the provisions this Agreement (in lieu of an amendment), signed by
all of the Consenting Owners, where strict adherence to the requirements of this Agreement or any
architectural standards established by the Consenting Owners would, in the judgment of the Consenting
Owners, cause undue hardship. The granting of a waiver or variance to one Owner shall not
automatically entitle another Owner to the same waiver or variance, it being understood that each request
for a waiver or variance shall be treated on its own individual merits.
14.24. Time of Essence: Time is of the essence with respect to the performance of each
obligation of this Agreement.
14.25. Counterparts. This Agreement may be executed in one or more counterparts, each of
which in the aggregate shall constitute one and the same instrument.
14.26. Effective Date: This Agreement shall be deemed effective upon recording in accordance
with Section 14.20 provided recording shall not occur until Developer has acquired title to the Shopping
Center land and has filed the plat of subdivision and Wal-Mart and Home Depot have waived any
conditions to the effectiveness of their respective leases for the Wal-Mart Parcel and the Home Depot
Parcel except for conditions relating to construction obligations of Developer. The parties further agree
that no party hereto shall, or allow any party through it, to take action inconsistent with this Agreement
prior to the Effective Date.
[Signatures Begin on the Next Page]
33
Instril nt# 2008001223 Book 727 Page 1777
EXECUTED as of the day and year first above written.
HOME DEPOT U.S.A., INC.,
a Delaw corporation
OCT 1 2 Zag
By
N
I
STATE OF GEORGIA
COUNTY OF COBB
I, II the ? the undersigned 11'C, do hereby certify
that S personally appeared beff ihis day and acknowledged that
fi;4he is the of ume Depot U.S.A., Inc, a Delaware
corporation, and tha she, as such , being authorized to do so, executed
the foregoing instrument for and on behalf of the corporation.
WITNESS my hand and official seal this V
-W day of. AWkp' 2007
C;1 C of Officer)
Leah Rich
Notary Expires: ?Z' K)
[Signatures Continue on the Next Page]
H R?
NOTARY
PUBLIC
my COWS"
EXPIRES
QAAARCH 2,201V
34
Instrument# 2008001223 Book 727 Page 1778
[Signatures Continued from the Previous Page]
WAYNESVILLE COMMONS RETAIL ASSOCIATES, L.L.C.,
a North Carolina limited liability company
By: Waynesville Capi I A' fates, L.L.C.
Its: ManaRinR Member ;
By: YYe
Name:
Its:
STATE OF OHIO t "
COUNTY OF 60m rn t T
I, Cj t it 4. ,-bn 5C?n the undersigned h 6a r g , do hereby certify
that E 1?- ill 05k personally appeared before nie this day and acknowledged that
he/she is the h u yf (51 dent- of Waynesville Capital Associates, L.L.C., the
Managing Member of Waynesville Commons Retail Associates, L.L.C., a North Carolina limited
liability company, and that he/she, as such V a. P(ma+ , being authorized to do so,
executed the foregoing instrument for and on behalf of the corporation.
WITNESS my hand and official seal this 14t day of 3e 2007
?'Lti1g'h
(Si tune of Office
NotaryExpires: 0015 j Z 011
Jill A. Janson
Notary Public
State of Ohio
My Commission Expires July Z
ti rFr d %•
I (Notary Seal)
35
Instri, nt# 2008001223 Book 727 Page 1779
STATE OF ARKANSAS
COUNTY OF BENTON
WAL-MART STORES EAST, LP,
a Delaware limited partnership
By: WSE MANAGEMENT, LLC,
a Delaware limited liability company
and general partner
0 e,?-j 1,6
By:
J. Chris Callaway C/'Regional Vice Pt?/
Design and Real Approve -I?s only
by ---------
WAL-MA LEGAL. DEPT.
Date: + -
I, _ ka-MIL-Ser , a Notary Public of the County and State
aforesaid, certify that is Callaway either being personally known to mr. or proven by
satisfactory evidence (said evidence being ), personally appeared before
me this day and acknowledged that he is Regional Vice President of Design and Real Estate
WSE Management, LLC, a Delaware limited liability company, a general partner of Wal-Mart
Stores East, LP, a Delaware limited partnership, and that he as Regional Vice President of
Design and Real Estate, being authorized to do so, voluntarily executed the foregoing on behalf
of the company for the purposes stated therein.
WITNESS my hand and official stamp or seal, this day of Se 4r_, ,r 2007.
tary ublic
My Commission Expires:
Printed Name: r
j -'j
io/1gl t(.,
S E A L )
KATHY NOTARY PUBLIC-STATE OF ARKANSAS
BENTON COUNTY
My Commission Expires 10-19-2016
__ Commission # 12357509
36
Instrument# 2008001223 Book 727 Page 1780
List of Exhibits
A = Site Plan
B = Legal Description of Shopping Center
B-1 = Legal Description of the Developer Parcel
B-2 = Legal Description of the Home Depot Parcel
B-3 = Legal Description of the Wal-Mart Parcel
B-4 = Legal Description of the Outparcels
C = Sign Exhibit
D - Approved Plans for the Shopping Center
Instril nt# 2008001223 Book 727 Page 1781
EXHIBIT A
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Instxument# 2008001223 Book 727 Page 1782
EXHIBIT B
Shopping Center Legal Description
A PARCEL OF LAND LOCATED IN TOWN OF WAYNESVILLE, WAYNESVILLE TOWNSHIP,
HAYWOOD COUNTY, NORTH CAROLINA, AND MORE PARTICULARLY DESCRIBED AS:
COMMENCING AT THE N.C.G.S. MONUMENT DAYCO (NAD 83), THENCE N37°21'19"E, 793.54 FEET
TO A POINT ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF HYATT CREEK ROAD (SR 1164)
AND THE CENTERLINE OF RICHLAND CREEK TO THE POINT OF BEGINNING; CONTINUING
ALONG THE CENTERLINE OF RIGHLAND CREEK AND FOLLOWING 22 CALLS; N31 *25'48"W,
132.02 FEET; THENCE N42023'34"W, 60.01 FEET; THENCE N23°31'1 1"W, 30.70 FEET; THENCE
N01°44'31"E, 32.36 FEET; THENCE N1502247"E, 115.46 FEET; THENCE N15°09'15"E, 55.27;
THENCE N08000'28"E, 85.71 FEET; THENCE N02023'38"W, 44.72 FEET; THENCE N03°48'18"E, 40.28
FEET; THENCE N13017'23"E, 25.29 FEET; THENCE N22002'58"E, 9.14 FEET; THENCE N21°23'42"E,
22.09 FEET; THENCE N32034'35"E, 87.54 FEET; THENCE N46049'30"E, 35.86 FEET; THENCE
N25032'57"E, 61.73 FEET; THENCE N2702542"E, 159.15 FEET; THENCE N32033'17"E, 160.92 FEET;
THENCE N21025'05'E, 186.55 FEET; THENCE N28019'53'E, 313.01 FEET; THENCE N19026'53"E,
365.80 FEET; THENCE N0801 0'26"E, 45.57 FEET; THENCE N13057'12"E, 75.54 FEET TO THE POINT
OF INTERSECTION OF RICHLAND CREEK AND ALLENS CREEK; THENCE CONTINUING ALONG
THE CENTERLINE OF ALLENS CREEK AND THE FOLLOWING 9 CALLS; S71021'02"E, 74.35 FEET;
THENCE S54020'12"E, 39.50 FEET; THENCE S57°42'21 "E, 118.97 FEET; THENCE S51 °28'31 "E, 76.50
FEET; THENCE S46004'03"E, 84.71 FEET; THENCE S44001'55"E, 117.86 FEET; THENCE S40038'26"E,
124.45 FEET; THENCE S39052'01"E, 149.60 FEET; THENCE S48045'50"E, 75.00 FEET TO A PK NAIL
IN THE CENTERLINE OF THE MURPHY BRANCH DIVISION OF SOUTHERN RAILWAY RIGHT-OF-
WAY; THENCE CONTINUING ALONG THE CENTERLINE RAILWAY RIGHT-OF-WAY S1 725'43'W,
393.60 FEET TO A POINT ON THE NORTH SIDE OF A PUBLIC RIGHT-OF-WAY; THENCE LEAVING
THE CENTERLINE OF SAID RAILROAD RIGHT OF WAY AND CONTINUING ALONG SAID PUBLIC
RIGHT-OF-WAY AND THE FOLLOWING 10 CALLS; N72°34'18"W, 39.13 FEET; THENCE N10130'19"E,
11.34 FEET; THENCE N17°25'42"E, 27.24 FEET; THENCE N72034'18"W, 50.00 FEET; THENCE
S17025'42'W, 27.24 FEET; THENCE A 68.50 RADIUS CURVE TO THE LEFT 9.36 FEET, (HAVING AN
INCLUDED ANGLE OF 7°49'51", AND LONG CHORD BEARING S1 3-32-08-W, 9.36 FEET); THENCE
809°37'12"W, 106.73 FEET; THENCE S80°22'48"E, 50.00 FEET; THENCE N09°37'12"E, 38.37 FEET;
THENCE S720U'l9"E, 31.04 FEET TO A POINT ON THE CENTERLINE OF MURPHY BRANCH
DIVISION OF SOUTHERN RAILWAY RIGHT-OF-WAY; THENCE LEAVING SAID PUBLIC RIGHT OF
WAY AND CONTINUING ALONG THE CENTERLINE OF RAILROAD RIGHT OF WAY S1 7025,43"W,
685.35 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY OF BALSAM ROAD (U.S. 23 BUS.
(NCSR 1243)); THENCE S47035'51"W, 100.21 FEET; ALONG THE WESTERLY RIGHT-OF-WAY OF
BALSAM ROAD (U.S. 23 BUS,(NCSR 1243)); THENCE A 457.00 FOOT RADIUS CURVE TO THE LEFT
167.69 FEET (HAVING AN INCLUDED ANGLE OF 21°01'27" AND LONG CHORD BEARING
S37°05'07'W, 166.75 FEET); THENCE A 663.50 FOOT RADIUS CURVE TO THE LEFT 29.18 FEET
(HAVING AN INCLUDED ANGLE OF 2°31'13" AND LONG CHORD BEARING S36°24'42"W, 29.18
FEET); THENCE A 663.50 FOOT RADIUS CURVE TO THE LEFT 39.49 FEET (HAVING AN INCLUDED
ANGLE OF 3°24'37" AND LONG CHORD BEARING S33°26'47"W, 39.49 FEET); THENCE
CONTINUING ON SAID ROAD RIGHT-OF-WAY ON A 337.52 FOOT RADIUS CURVE TO THE LEFT
54.66 FEET (HAVING AN INCLUDED ANGLE OF 9°16'44" AND LONG CHORD BEARING
S20°47'38"W, 54.60 FEET); THENCE 815°21'30"W, 49.80 FEET; THENCE A 53.50 FOOT RADIUS
CURVE TO THE RIGHT 80.47 FEET (HAVING AN INCLUDED ANGLE OF 86°10'37" AND LONG
CHORD BEARING S58026'49"W, 73.10 FEET), LEAVING SAID ROAD RIGHT-OF-WAY AND
CONTINUING ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF HYATT CREEK ROAD (NCSR
1164); THENCE N78°27'46"W 157.74 FEET; THENCE A 37.00 FOOT RADIUS CURVE TO THE RIGHT
33.37 FEET (HAVING AN INCLUDED ANGLE OF 51°40'18" AND LONG CHORD BEARING
N52°37'37"W, 32.25 FEET); THENCE N81016'10"W, 107.53 FEET; THENCE A 37.00 FOOT RADIUS
CURVE TO THE RIGHT 21.78 FEET (HAVING AN INCLUDED ANGLE OF 33°44'03", AND LONG
CHORD BEARING S75028'54'W, 21.47 FEET); THENCE N82°17'28"W, 27.81 FEET; THENCE
N78°21'26"W, 234.88 FEET TO THE POINT ON THE CENTERLINE OF RICHLAND CREEK AND THE
POINT OF BEGINNING;
AKA LOTS 1, 2, 5 AND SAS SHOWN ON THE SURVEY PLAT ENTITLED MAJOR SUBDIVISION PLAT
FOR WAYNESVILLE COMMONS RETAIL ASSOCIATES, L.L.C. FILED FOR RECORD NOVEMBER 28,
2007 AND RECORDED IN MAP BOOK CABC PAGE 5122 AS INSTRUMENT NUMBER 2007669952 IN
THE OFFICE OF THE REGISTER OF DEEDS HAYWOOD COUNTY, NC.
Instrument# 2008001223 Book 727 Page 1783
EXHIBIT B-1
Developer Parcel Legal Description
A PARCEL OF LAND LOCATED IN TOWN OF WAYNESVILLE, WAYNESVILLE TOWNSHIP,
HAYWOOD COUNTY, NORTH CAROLINA, AND MORE PARTICULARLY DESCRIBED AS:
COMMENCING AT THE N.C.G.S. MONUMENT DAYCO (NAD 83), THENCE N37021'1 9"E, 793.54 FEET
TO A POINT ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF HYATT CREEK ROAD (SR 1164)
AND THE CENTERLINE OF RICHLAND CREEK AND THE POINT OF BEGINNING; THENCE
CONTINUING ALONG THE CENTERLINE OF RICHLAND CREEK AND THE FOLLOWING 14 CALLS;
N31025'46"W, 132.02 FEET; THENCE N42023'34"W, 60.01 FEET; THENCE N23131'1 1"W, 30.70 FEET;
THENCE N01°44'31E, 32.36 FEET; THENCE N15 022'47E, 115.46 FEET; THENCE N15°09'15"E, 55.27
FEET; THENCE N08°00'28"E, 65.71 FEET; THENCE N02023'38"W, 44.72 FEET; THENCE N03°48'16"E,
40.28 FEET; THENCE N13017'23"E, 25.29 FEET; THENCE N22°02'58"E, 9.14 FEET; THENCE
N21023'42"E, 22.09 FEET; THENCE N32034'35"E, 87.54 FEET; THENCE N46049'30"E, 35.86 FEET;
THENCE LEAVING THE CENTERLINE OF RICHLAND CREEK S46020'57"E, 80.90 FEET; THENCE
S08°32'48"W, 92.88 FEET; THENCE S10016'59"E, 82.33 FEET; THENCE S24058'01"E, 70.05 FEET;
THENCE S22°47'11 "W, 48.93 FEET; THENCE S6701249"E, 334.52 FEET; THENCE S24052'50"W,
268.55 FEET; THENCE A 37.00 FOOT RADIUS CURVE TO THE RIGHT 43.56 FEET (HAVING AN
INCLUDED ANGLE 67028'04", AND LONG CHORD BEARING S58036'53"W, 41.09 FEET) TO A POINT
ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF HYATT CREEK ROAD (NCSR 1164);
THENCE CONTINUING ALONG THE PROPOSED NORTHERLY RIGHT OF WAY OF HYATT CREEK
ROAD N82017'28"W, 27.81 FEET; THENCE N78021'26"W, 234.88 FEET TO THE POINT ON THE
CENTERLINE OF RICHLAND CREEK AND THE POINT OF BEGINNING;
SAID PARCEL CONTAINS 4.36 ACRES MORE OR LESS.
AKA LOT 2 SHOWN ON THE SURVEY PLAT ENTITLED MAJOR SUBDIVISION PLAT FOR
WAYNESVILLE COMMONS RETAIL ASSOCIATES, L.L.C. FILED FOR RECORD NOVEMBER 28, 2007
AND RECORDED IN MAP BOOK CABC PAGE 5122 AS INSTRUMENT NUMBER 2007669952 IN THE
OFFICE OF THE REGISTER OF DEEDS HAYWOOD COUNTY, NC.
Instrument# 2008001223 Book 727 Page 1784
EXHIBIT B-2
Home Depot Legal Description
A PARCEL OF LAND LOCATED IN TOWN OF WAYNESVILLE, WAYNESVILLE TOWNSHIP,
HAYWOOD COUNTY, NORTH CAROLINA, AND MORE PARTICULARLY DESCRIBED AS:
COMMENCING AT THE N.C.G.S. MONUMENT DAYCO (NAD 83), THENCE N37°21'19"E, 793.54 FEET
TO A POINT ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF HYATT CREEK ROAD (SR 1164)
AND THE CENTERLINE OF RICHLAND CREEK; THENCE CONTINUING ALONG THE CENTERLINE
OF RICHLAND CREEK AND THE FOLLOWING 18 CALLS; N31 *25'48'W, 132.02 FEET; THENCE
N42023'34"W, 60.01 FEET; THENCE N23°31'1 1"W, 30.70 FEET; THENCE N01°44'31 E, 32.38 FEET;
THENCE N1 5-22'47-E, 115.46 FEET; THENCE N15°09'15"E, 55.27 FEET; THENCE N08°00'28"E, 65.71
FEET; THENCE N02023'38"W, 44.72; THENCE N03048'16"E, 40.28 FEET; THENCE N13°17'23"E, 25.29
FEET; THENCE N22002'58"E, 9.14 FEET; THENCE N21023'42"E, 22.09 FEET; THENCE N3r34'35"E,
87.54 FEET; THENCE N46049'30"E, 35.86 FEET; THENCE N25032'57"E, 61.73 FEET; THENCE
N27025'42"E, 159.15 FEET; THENCE N32033'17"E, 160.92 FEET; THENCE N21°25'05"E, 116.93 FEET
TO THE POINT OF BEGINNING; THENCE CONTINUING ALONG THE CETNERLINE OF RICHLAND
CREEK AND THE FOLLOWING 5 CALLS; N21 °25'05"E, 69.62 FEET THENCE N28°19'53"E, 313.01
FEET; THENCE N19026'53"E, 365.80 FEET; THENCE N08010'26"E, 45.57 FEET; THENCE
N13057'12"E, 75.54 FEET TO THE POINT OF INTERSECTION OF RICHLAND CREEK AND ALLENS
CREEK; THENCE CONTINUING ALONG THE CENTERLINE OF ALLENS CREEK AND THE
FOLLOWING 9 CALLS; S71021'02"E, 74.35 FEET; THENCE S54020'1 2"E, 39.50 FEET; THENCE
S57042'21 "E, 118.97 FEET; THENCE S51°28'31 "E, 76.50 FEET; THENCE S46°04'03"E, 84.71 FEET;
THENCE S44001'55"E, 117.86 FEET; THENCE S4003826"E, 124.45 FEET; THENCE S39°52'01 "E,
149.60 FEET; THENCE S48°45'50"E, 75.00 FEET TO A PK NAIL IN THE CENTERLINE OF THE
MURPHY BRANCH DIVISION OF SOUTHERN RAILWAY RIGHT-OF-WAY; THENCE CONTINUING
ALONG THE CENTERLINE RAILWAY RIGHT-OF-WAY S1 7°25'43'W, 393.60 FEET TO A POINT ON
THE NORTH SIDE OF DAYCO DRIVE; THENCE LEAVING SAID CENTERLINE OF RAILROAD RIGHT
OF WAY AND CONTINUING ALONG SAID DAYCO DRIVE AND THE FOLLOWING 7 CALLS;
N72034'1 8'W, 39.13 FEET; THENCE N10°30'19"E, 11.34 FEET; THENCE N11 702542"E, 27.24 FEET;
THENCE N72034'18"W, 50.00 FEET; THENCE S17025'42'W, 27.24 FEET; THENCE A 68.50 RADIUS
CURVE TO THE LEFT 9.36 FEET, (HAVING AN INCLUDED ANGLE OF 7°49'51 ", AND LONG CHORD
BEARING S1 332'08"W, 9.36 FEET); THENCE S09°37'12"W, 11.36 FEET; THENCE LEAVING SAID
DAYCO DRIVE N68015'08'W, 191.05 FEET; THENCE S21044'50"W, 126.00 FEET; THENCE
N68015'08"W, 114.00 FEET; THENCE S21044'31"W, 47.66 FEET; THENCE N68°15'08W, 436.42 FEET
TO THE POINT OF BEGINNING;
SAID PARCEL CONTAINS 12.45 ACRES MORE OR LESS.
AKA LOT 5 SHOWN ON THE SURVEY PLAT ENTITLED MAJOR SUBDIVISION PLAT FOR
WAYNESVILLE COMMONS RETAIL ASSOCIATES, L.L.C. FILED FOR RECORD NOVEMBER 28, 2007
AND RECORDED IN MAP BOOK CABC PAGE 5122 AS INSTRUMENT NUMBER 2007669952 IN THE
OFFICE OF THE REGISTER OF DEEDS HAYWOOD COUNTY, NC.
Instxuaeent# 2008001223 Book 727 Page 1785
EXHIBIT B-3
Wal-Mart Legal Description
A PARCEL OF LAND LOCATED IN TOWN OF WAYNESVILLE, WAYNESVILLE TOWNSHIP,
HAYWOOD COUNTY, NORTH CAROLINA, AND MORE PARTICULARLY DESCRIBED AS:
COMMENCING AT THE N.C.G.S. MONUMENT DAYCO (NAD 83), THENCE N37°21'19"E, 793.54 FEET
TO A POINT ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF HYATT CREEK ROAD (SR 1164)
AND THE CENTERLINE OF RICHLAND CREEK; THENCE CONTINUING ALONG THE CENTERLINE
OF RICHLAND CREEK AND THE FOLLOWING 14 CALLS; N31025'46"W, 132.02 FEET; THENCE
N42023'34"W, 60.01 FEET; THENCE N23°31'1 1"W, 30.70 FEET; THENCE N01°44'31 E. 32.36 FEET;
THENCE N1 5022'47"E, 115.46 FEET; THENCE N15°09'15"E, 55.27 FEET; THENCE N08000'28'E, 65.71
FEET; THENCE N02023'38"W, 44.72 FEET; THENCE N03048'16"E, 40.28 FEET; THENCE N13017'23"E,
25.29 FEET; THENCE N22002'58"E, 9.14 FEET; THENCE N21°23'42"E, 22.09 FEET; THENCE
N32034'35"E, 87.54 FEET; THENCE N46049'30"E, 35.86 FEET TO THE POINT OF BEGINNING;
THENCE CONTINUING ALONG THE CENTERLINE OF RICHLAND CREEK THE FOLLOWING 4
CALLS; THENCE N25132'57"E, 61.73 FEET; THENCE N27°25'42"E, 159.15 FEET; THENCE
N32033'1 7"E, 160.92 FEET; THENCE N21025'05"E, 116.93 FEET; THENCE LEAVING THE
CENTERLINE OF RICHLAND CREEK S68015'08E, 436.42 FEET; THENCE N21°44'31"E, 47.66 FEET;
THENCE S68015'08"E, 114.00 FEET; THENCE N21044'50"E, 126.00 FEET; THENCE S68115'08"E,
191.05 FEET TO A POINT ON DAYCO DRIVE RIGHT OF WAY; THENCE CONTINUING ALONG SAID
RIGHT OF WAY AND THE FOLLOWING 4 CALLS; S09°37'1 2"W, 95.37 FEET; THENCE S80022'48'E,
50.00 FEET; THENCE N09037'11 2"E, 38.37 FEET; THENCE S72°34'1 9"E, 31.04 FEET TO A POINT ON
THE CENTERLINE OF MURPHY BRANCH DIVISION OF SOUTHERN RAILWAY RIGHT-OF-WAY;
THENCE LEAVING SAID DAYCO DRIVE RIGHT OF WAY AND CONTINUING ALONG THE
CENTERLINE OF RAILROAD RIGHT OF WAY S1 7025'43-W, 685.35 FEET TO A POINT ON THE
WESTERLY RIGHT OF WAY OF 19A & 23 BUSINESS; THENCE S47°35'51 "W, 100.21 FEET ALONG
THE WESTERLY RIGHT-OF-WAY OF 19A & 23 BUSINESS; THENCE A 457.00 FOOT RADIUS CURVE
TO THE LEFT 167.69 FEET (HAVING AN INCLUDED ANGLE OF 21°01'27" AND LONG CHORD
BEARING S37°05'07"W, 166.75 FEET); THENCE A 663.50 FOOT RADIUS CURVE TO THE LEFT 29.18
FEET (HAVING AN INCLUDED ANGLE OF 2°31'13' AND LONG CHORD BEARING S36°24'42"W, 29.18
FEET); THENCE N66°59'1 7"W, 7.18 FEET; THENCE N29°24'41 "W, 25.94 FEET; THENCE A 136.00
FOOT RADIUS CURVE TO THE RIGHT 89.10 FEET (HAVING AN INCLUDED ANGLE OF 37°32'07",
AND LONG CHORD N85"58'52"W, 87.51 FEET); THENCE N67°1 2'49"W, 96.74 FEET; THENCE A 27.50
FOOT RADIUS CURVE TO THE LEFT 42.19 FEET (HAVING AN INCLUDED ANGLE OF 87°54'21" AND
LONG CHORD BEARING 868°50'01 "W, 38.17 FEET); THENCE S24°52'50"W, 156.66 FEET, THENCE
TO A POINT ON THE PROPOSED NORTHERLY RIGHT OF WAY OF HYATT CREEK ROAD (NCSR
1164) ON A 37.00 FOOT RADIUS CURVE TO THE LEFT 33.37 FEET (HAVING AN INCLUDED ANGLE
OF 51°40'18", AND LONG CHORD S00"57"19"E, 32.25 FEET); THENCE N81016'10"W, 107.53 FEET
ALONG THE PROPOSED NORTHERLY RIGHT OF WAY OF HYATT CREEK ROAD (NCSR 1164);
THENCE LEAVING THE PROPOSED HYATT CREEK ROAD (NCSR 1164) RIGHT OF WAY ON A 37.00
FOOT RADIUS CURVE TO THE LEFT 21.78 FEET (HAVING AN INCLUDED ANGLE 33°44'03", AND
LONG CHORD BEARING N41 °4452"E, 21.47 FEET); THENCE N24052'50"E, 268.55 FEET; THENCE
N67012'49'W, 334.52 FEET; THENCE N22°47'11'E. 48.93 FEET; THENCE N24°58'01"W, 70.05 FEET;
THENCE N10016'59"W, 82.33 FEET; THENCE N08032'48"E, 92.88 FEET; THENCE N46020'57"W, 80.90
FEET TO A POINT ON THE CENTERLINE OF RICHLAND CREEK AND THE POINT OF BEGINNING.
SAID PARCEL CONTAINS 16.40 ACRES MORE OR LESS.
AKA LOT 6 SHOWN ON THE SURVEY PLAT ENTITLED MAJOR SUBDIVISION PLAT FOR
WAYNESVILLE COMMONS RETAIL ASSOCIATES, L.L.C. FILED FOR RECORD NOVEMBER 28, 2007
AND RECORDED IN MAP BOOK CABC PAGE 5122 AS INSTRUMENT NUMBER 2007669952 IN THE
OFFICE OF THE REGISTER OF DEEDS HAYWOOD COUNTY, NC.
Instrument# 2008001223 Book 727 Page 1786
EXHIBIT B-4
Outparcels Legal Description
LOT 1 DESCRIPTION
A PARCEL OF LAND LOCATED IN TOWN OF WAYNESVILLE, WAYNESVILLE TOWNSHIP,
HAYWOOD COUNTY, NORTH CAROLINA, AND MORE PARTICULARLY DESCRIBED AS;
COMMENCING AT THE N.C.G.S. MONUMENT DAYCO (NAD 83), THENCE N37°21'19"E, 793.54 FEET
TO A POINT ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF HYATT CREEK ROAD (SR 1164)
AND THE CENTERLINE OF RICHLAND CREEK; THENCE CONTINUING ALONG THE NORTHERLY
RIGHT OF WAY OF HYATT CREEK ROAD AND THE FOLLOWING 4 CALLS; S78021'26"E, 234.88
FEET; THENCE S82°17'28"E, 27.81 FEET; THENCE A 37.00 FOOT RADIUS CURVE TO THE LEFT
21.78 FEET (HAVING AN INCLUDED ANGLE OF 33°44'03" AND LONG CHORD OF N75°28'54"E,
21.47 FEET); THENCE S8101 6'10"E, 107.53 FEET TO THE POINT OF BEGINNING; THENCE LEAVING
THE NORTHERLY RIGHT OF WAY OF HYATT CREEK ROAD ON A 37.00 FOOT RADIUS CURVE TO
THE RIGHT 33.37 FEET (HAVING AN INCLUDED ANGLE OF 51'40'18", AND LONG CHORD
N00°57"1 9"W, 32.25 FEET); THENCE N24052'50"E, 156.66 FEET; THENCE A 27.50 FOOT RADIUS
CURVE TO THE RIGHT 42.19 FEET (HAVING AN INCLUDED ANGLE OF 87°54'21", AND LONG
CHORD BEARING N88050'01 "E, 38.17 FEET); THENCE S67°1 2'49"E, 96.74 FEET; THENCE A 136.00
FOOT RADIUS CURVE TO THE LEFT 89.10 FEET (HAVING AN INCLUDED ANGLE OF 37°32'07",
AND LONG CHORD S85058'52"E, 87.51 FEET); THENCE S2M4'41 "E, 25.94 FEET; THENCE
S68059'11 7"E, 7.18 FEET TO A POINT ON THE RIGHT-OF-WAY OF BALSAM ROAD (U. S. 23
BUS.(NCSR 1243)); THENCE CONTINUING ON SAID ROAD RIGHT-OF-WAY ON A 663.50 FOOT
RADIUS CURVE TO THE LEFT 39.49 FEET (HAVING AN INCLUDED ANGLE OF 3°24'37" AND LONG
CHORD BEARING S33°26'47"W, 39.49 FEET), THENCE CONTINUING ON SAID ROAD RIGHT-OF-
WAY ON A 337.52 FOOT RADIUS CURVE TO THE LEFT 54.66 FEET (HAVING AN INCLUDED ANGLE
OF 9016'44" AND LONG CHORD BEARING S20°47'36"W, 54.60 FEET); THENCE S1 5121'30w, 49.80
FEET; THENCE A 53.50 FOOT RADIUS CURVE TO THE RIGHT 80.47 FEET (HAVING AN INCLUDED
ANGLE OF 86010'37" AND LONG CHORD BEARING S58°26'49"W, 73.10 FEET), LEAVING SAID
ROAD RIGHT-OF-WAY AND CONTINUING ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF
HYATT CREEK ROAD (NCSR 1164); THENCE N7802746"W 157.74 FEET; THENCE A 37.00 FOOT
RADIUS CURVE TO THE RIGHT 33.37 FEET (HAVING AN INCLUDED ANGLE OF 51040'18" AND
LONG CHORD BEARING N52°37'37"W, 32.25 FEET) TO THE POING OF BEGINNING.
SAID PARCEL CONTAINS 1.11 ACRES MORE OR LESS.
AKA LOT 1 SHOWN ON THE SURVEY PLAT ENTITLED MAJOR SUBDIVISION PLAT FOR
WAYNESVILLE COMMONS RETAIL ASSOCIATES, L.L,C. FILED FOR RECORD NOVEMBER 28, 2007
AND RECORDED IN MAP BOOK CABC PAGE 5122 AS INSTRUMENT NUMBER 2007669952 IN THE
OFFICE OF THE REGISTER OF DEEDS HAYWOOD COUNTY, NC.
Instril nt# 2008001223 Book 727 Page 1787
B-4 CONTINUED
LOT 3 DESCRIPTION
A PARCEL OF LAND LOCATED IN TOWN OF WAYNESVILLE, WAYNESVILLE TOWNSHIP,
HAYWOOD COUNTY, NORTH CAROLINA, AND MORE PARTICULARLY DESCRIBED AS:
COMMENCING AT THE N.C.G.S. MONUMENT DAYCO (NAD 83), THENCE N37°21'19"E, 793.54 FEET
TO A POINT ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF HYATT CREEK ROAD (SR 1164)
AND THE CENTERLINE OF RICHLAND CREEK; THENCE CONTINUING ALONG THE CENTERLINE
OF RICHALND CREEK AND THE FOLLOWING 18 CALLS; N31 °2546"W, 132.02 FEET; THENCE
N42023'34"W, 60.01 FEET; THENCE N23°31'11`W, 30.70 FEET; THENCE N01044'31 E, 32.36 FEET;
THENCE N15022'47"E, 115.46 FEET; THENCE N15009'15"E, 55.27 FEET; THENCE N08000'28"E, 65.71
FEET; THENCE N02023'38"W, 44.72 FEET; THENCE N03048'1 6"E, 40.28 FEET; THENCE N11 3017'23"E,
25.29 FEET; THENCE N22°02'58"E, 9.14 FEET; THENCE N21°23'42"E, 22.09 FEET; THENCE
N3r34'35"E, 87.54 FEET; THENCE N46049'30"E, 35.86 FEET; THENCE N25032'57"E, 61.73 FEET;
THENCE N27025'42E, 159.15 FEET; THENCE N32°33'17"E, 160.92 FEET; THENCE N21°25'05"E,
116.93 FEET; THENCE LEAVING THE CENTERLINE OF RICHALND CREEK; S68°1 5'08E, 436.42
FEET; THENCE N21 *44'31"E, 47.66 FEET; THENCE S6811 5'08'E, 114.00 FEET; THENCE
N21 °44'50"E, 126.00 FEET; THENCE S6801 5'08"E, 191.05 FEET TO A POINT ON DAYCO DRIVE;
THENCE CONTINUING ON SAID DAYCO DRIVE AND THE FOLLOWING 4 CALLS; S09037'12"W,
95.37 FEET; THENCE S8M2'48"E, 50.00 FEET; THENCE N09037'12"E, 38.37 FEET; THENCE
S72°34'19"E, 31.04 FEET TO A POINT ON THE CENTERLINE OF MURPHY BRANCH DIVISION OF
SOUTHERN RAILWAY RIGHT-OF-WAY AND THE POINT OF BEGINNING; THENCE CONTINUING
ALOND THE SOUTH RIGHT OF WAY OF DAYCO DRIVE 872°34'19"E, 25.67 FEET; THENCE A 66.40
FOOT RADIUS CURVE TO THE RIGHT 70.85 FEET (HAVING AN INCLUDED ANGLE OF 61-08,24",
AND LONG CHORD BEARING S42°33'13"E, 67.54 FEET); THENCE S12002'22"E, 208.04 FEET,
THENCE A 113.50 FOOT RADIUS CURVE TO THE LEFT 42.87 FEET (HAVING AN INCLUDED ANGLE
OF 21038'37", AND LONG CHORD BEARING S22°51'41"E, 42.62 FEET); THENCE A 36.58 FOOT
RADIUS CURVE TO THE RIGHT 52.58 FEET (HAVING AN INCLUDED ANGLE OF 82°22'05", AND
LONG CHORD BEARING S06°55'43"W, 48.17 FEET) TO A POINT ON THE NORTHERLY RIGHT-OF-
WAY OF 19A 8 23 BUSINESS; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY 847°35'51 "E,
443.47 FEET TO A POINT ON THE CENTERLINE OF MURPHY BRANCH DIVISION OF SOUTHERN
RAILWAY RIGHT-OF-WAY; THENCE LEAVING SAID ROAD RIGHT-OF-WAY N1 7°2543"E, 678.19
FEET ALONG SAID RAILWAY RIGHT-OF-WAY TO THE POINT OF BEGINNING.
SAID PARCEL CONTAINS 1.99 ACRES MORE OR LESS.
AKA OUTLOT 3 SHOWN ON THE SURVEY PLAT ENTITLED MAJOR SUBDIVISION PLAT FOR
WAYNESVILLE COMMONS RETAIL ASSOCIATES, L.L.C. FILED FOR RECORD NOVEMBER 28, 2007
AND RECORDED IN MAP BOOK CABC PAGE 5122 AS INSTRUMENT NUMBER 2007669952 IN THE
OFFICE OF THE REGISTER OF DEEDS HAYWOOD COUNTY, NC.
Instrument# 2008001223 Book 727 Page 1788
B-4 CONTINUED
LOT 4 DESCRIPTION
A PARCEL OF LAND LOCATED IN TOWN OF WAYNESVILLE, WAYNESVILLE TOWNSHIP,
HAYWOOD COUNTY, NORTH CAROLINA, AND MORE PARTICULARLY DESCRIBED AS:
COMMENCING AT THE N.C.G.S. MONUMENT DAYCO (NAD 83), THENCE N37-21'1 9-E, 793.54 FEET
TO A POINT ON THE PROPOSED NORTHERLY RIGHT-OF-WAY OF HYATT CREEK ROAD (SR 1164)
AND THE CENTERLINE OF RICHLAND CREEK; THENCE CONTINUING ALONG THE CENTERLINE
OF RICHLAND CREEK AND THE FOLLOWING 18 CALLS; N31e25'46"W, 132.02 FEET; THENCE
N42e23'34"W, 60.01 FEET; THENCE N23°31'11 "W, 30.70 FEET; THENCE N01 044'31 E, 32.36 FEET;
THENCE NI 5022'47"E, 115.46 FEET; THENCE N15009'15"E, 55.27 FEET; THENCE N08000'28"E, 65.71
FEET; THENCE N02023'38"W, 44.72 FEET; THENCE N03°48'16"E, 40.28 FEET; THENCE N13017'23"E,
25.29 FEET; THENCE N22e02'58"E, 9.14 FEET; THENCE N21023'42"E, 22.09 FEET; THENCE
N32e34'35'E, 87.54 FEET; THENCE N46049'30"E, 35.86 FEET; THENCE N25°32'57"E, 61.73 FEET;
THENCE N27025'42"E, 159.15 FEET; THENCE N32033'1 7"E, 160.92 FEET; THENCE N21125'05"E,
116.93 FEET; THENCE LEAVING THE CENTERLINE OF RICHAAND CREEK S68e15'08E, 436.42
FEET; THENCE N21044'31 "E, 47.86 FEET; THENCE S6801 5'08"E, 114.00 FEET; THENCE
N21044'50"E, 126.00 FEET; THENCE S68015'08"E, 191.05 FEET TO A POINT ON DAYCO DRIVE;
THENCE ALONG SAID DAYCO DRIVE AND FOLLOWING 4 CALLS; THENCE S09°37'1 2"E, 95.37
FEET; THENCE S80e22'48"E, 50.00 FEET; THENCE N09037'12"E, 38.37 FEET; THENCE S72°34'19"E,
31.04 FEET TO A POINT ON THE CENTERLINE OF MURPHY BRANCH DIVISION OF SOUTHERN
RAILWAY RIGHT-OF-WAY; THENCE ALONG SAID CENTERLINE OF RAILROAD RIGHT OF WAY
N17025'43"E, 59.00 FEET LEAVING THE SOUTHERLY DAYCO DRIVE RIGHT-OF-WAY TO A POINT
ON THE NORTHERLY SIDE OF DAYCO DRIVE RIGHT-OF-WAY AND THE POINT OF BEGINNING;
THENCE N1 7025'43"E, 393.60 FEET ALONG SAID CENTERLINE OF RAILWAY RIGHT-OF-WAY TO A
PK NAIL AT THE INTERSECTION WITH ALLENS CREEK; THENCE LEAVING SAID RAILWAY RIGHT-
OF-WAY S56043'27"E, 60.17 FEET; THENCE S77154'27"E, 56.23 FEET; THENCE S10004'38"E, 250.97
FEET; THENCE S05034'46"E, 109.44 FEET; THENCE S77025'1 6"W, 193.72 FEET TO A POINT ON
THE NORTHERLY DAYCO DRIVE RIGHT-OF-WAY; THEN CONTINUING ON SAID DAYCO DRIVE
RIGHT-OF-WAY ON A 106.50 FOOT RADIUS CURVE TO THE LEFT 92.66 FEET (HAVING AN
INCLUDED ANGLE OF 49050'52", AND LONG CHORD BEARING N47°38'52"W, 89.76 FEET); THENCE
N72034'1 8"W, 23.39 FEET TO THE CENTERLINE OF SAID RAILWAY RIGHT-OF-WAY AND THE
POINT OF BEGINNING.
SAID PARCEL CONTAINS 1.81 ACRES MORE OR LESS.
AKA LOT 4 SHOWN ON THE SURVEY PLAT ENTITLED MAJOR SUBDIVISION PLAT FOR
WAYNESVILLE COMMONS RETAIL ASSOCIATES, L.L.C. FILED FOR RECORD NOVEMBER 28, 2007
AND RECORDED IN MAP BOOK CABC PAGE 5122 AS INSTRUMENT NUMBER 2007669952 IN THE
OFFICE OF THE REGISTER OF DEEDS HAYWOOD COUNTY, NC.
PA127001127MI2765 Legal Descriplions.doc
Instrument# 2008001223 Book 727 Page 1789
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Instrument# 2008001223 Book 727 Page 1791
EXHIBIT D
Approved Plans
The Home Depot - Waynesville Town Centet
Waynewille, NC
Prepared In, Wade D*n Group, Inc.
C-0.1 Cover Sheet 7/18/07
C-0.2 Existing Topography 10/10/06 7/18/07
C.-0.3 Demolition Plan 10110106 7.118/077
C-1.0 Site Plan 10/10;'06 7=18/07
C-11 Site Details 10110106 7118/07
C-1.2 Site Details 10/ 10.:06 7i i K07
C-1.3 Curbed Island Details 10/10'06 7,'. 18,107
C'-1.4 C'oustntction Specifications 10,110/06 7.'18/07
C-1.5 Constntctiou Specifications 14/10/06 7118/07
C-2.0 Grading Plan 10/10106 7! 18107
C-2.1 Grading Plan 10/10/06 7/18107
C-2.2 Constntction Specifications 10110,106 7118107
C-2.3 C'onstntction Specifications 10/10106 7/18107
C-2.4 Retaining Wall Profiles & Cross Sections 10/10/06 7/18,-`07
C-2.3 Retaining Wall Profiles & Cross Sections 10110106 7/18/07
C-2.6 RetainikR Wall Profiles & Cross Sections 10/101106 7/18:07
C-3.0 Utility Plan 10/10106 7;18.'07
C-3.1 Utility Plan 10/1011'06 7/18/07
C-32 Sanitary Sewer Profiles 10/10106 7,118/07
C-3.3 Stotm Sewer Profiles 10110106 7!18/07
C-3.3a Storm Sewer Profiles 10/10/06 71118/07
C-3.4 Water Main Profiles 10110106 7118107
C-3.5 1 tilityDetails 10/101'06 7/18,07
C-3.6 Utility Details 10,110; 06 71118,107
C-3.7 Utility Details 10110/06 7/18,10?
C-3.8 Sand Filter Plan and Details 10/10106 .;18/07
C'-3.9 Utility Specifications 10/10,'06 7/18/07
C'-4.0 Site Lighting Plans (WLS) 10/I0/06 7, i 18107
C-4.1 Site Lighting Circuit Plan Ioil0/06 7118/0^
C-4.2 Site Lighting Details & Notes 10/10/06 7/18'07
L-1 Tree Planting Plan 09/20,106 6/01,'07
L-2 Enlarged Detail Planting Plan 091120/06 6/01/07
L-3 Landscape Specifications 09120106 61,01107
C-6.0 SESC,SWPP Plan-Phase I 10110/06 7/18/07
C-6.1 SESC'/SWPP Plan-Phase H 10/10/06 %/18/07
C-6.2 SESC'iSWPP Details & Notes 10110/06 7/18/07
C-6.3 SESC/SWPP Details & Notes 10/10106 7/ 1 SJ07
- I -
Tlly - n'as?tesstille Town Center
wavnesville. NC
0051048.?
6;1:07 (Revised 7 10 07)
Instrument# 2008001223 Book 727 Page 1792
TABLE OF CONTENTS
1.1 Parties .............................................................................................................................. 1
1.2 Purpose .............................................................................................................................1
1.3 Definitions ........................................................................................................................1
2. BUILDING AND COMMON AREA DEVELOPMENT ......................................................... 5
2.1 Building Location .............................................................................................................. 5
2.2 Common Area ................................................................................................................... 5
2.3 Type and Design of Building ............................................................................................. 5
2.4 Construction Requirements ................................................................................................ 6
2.5 Temporary License ............................................................................................................ 7
2.6 Indemnity .......................................................................................................................... 8
2.7 Approval Procedures ......................................................................................................... 8
3. EASEMENTS ..........................................................................................................................8
3.1 Ingress, Egress and Parking ................................................................................................ 8
3.3 Utility Lines and Facilities ................................................................................................. 9
3.4 Signs .............................................................................................................................. 10
3.5 Dedication to Public Entities ............................................................................................ 10
3.6 No Merger ...................................................................................................................... 10
3.7 Permanent Service Drive .................................................................................................. 11
3.8 Storm Drainage and Detention Easements ......................................................................... 11
4. OPERATION OF COMMON AREA ....................................................................................11
4.1 Parking ........................................................................................................................... 11
4.2 Employee Parking ........................................................................................................... 12
4.3 Signs .............................................................................................................................. 12
4.4 Protection of Common Area ............................................................................................. 13
4.5 Changes to Common Area ................................................................................................ 14
5. RESTRICTIONS ON USE ....................................................................................................14
5.1 Home Improvement Store Restrictions .............................................................................. 14
Instxunuent# 2008001223 Book 727 Page 1793
5.2 Shopping Center Restrictions
........................................................15
6. MAINTENANCE STANDARDS ........................................................................................... 17
6.1 Maintenance Obligations ................................................................................................. 17
6.2 Duty to Maintain ............................................................................................................. 18
6.3 Indemnity Against Liens .................................................................................................. 18
7. LIGHTING ............................................................................................................................18
8. PAYMENT OF TAXES .........................................................................................................18
8.1 Taxes and Assessments .................................................................................................... 19
8.2 Failure to Pay Taxes and Assessments .............................................................................. 19
9. Successors and Assigns; Limitation on Release ..................................................................... 19
10. DEFAULT .........................................................................................................................19
10.1 Default ...........................................................................................................................19
10.2 Self-Help ........................................................................................................................ 19
10.3 Remedies Cumulative ...................................................................................................... 20
11. LIEN FOR EXPENSES OR TAXES ................................................................................. 20
11.1 Effectiveness of Lien ...................................................................................................... 20
11.2 Priority of Lien ............................................................................................................... 20
12. LIABILITY INSURANCE; INDEMNIFICATION ........................................................... 21
12.1 Liability Insurance ........................................................................................................... 21
12.2 Insurance Coverage During Construction .......................................................................... 22
12.3 Indemnification by Owners .............................................................................................. 23
13. PROPERTY DAMAGE AND EMINENT DOMAIN ......................................................... 24
13.1 Damage to Buildings ...................................................................................................... 24
13.2 Casualty Damage to Common Areas ................................................................................. 24
13.3 Property Insurance ........................................................................................................... 24
13.4 Waiver of Subrogation ..................................................................................................... 25
13.5 Eminent Domain ............................................................................................................. 25
Instrument# 2008001223 Book 727 Page 1794
14. GENERAL PROVISIONS ................................................................................................. 25
14.1 Covenants Run With the Land .......................................................................................... 25
14.2 No Public Dedication ........................................................................................................... 25
14.3 Duration ......................................................................................................................... 25
14.4 Injunctive Relief .............................................................................................................. 26
14.5 Modification and Termination .......................................................................................... 26
14.6 Method of Approval ........................................................................................................ 26
14.7 Multiple Owners ............................................................................................................. 26
14.8 Estoppel Certificates ........................................................................................................ 27
14.9 Breach Shall Not Permit Termination ............................................................................... 27
14.10 Notices .............................................................................................................................. 27
14.11 Waiver .............................................................................................................................. 28
14.12 Attomeys' Fees ................................................................................................................... 29
14.13 Severability ........................................................................................................................ 29
14.14 Not a Partnership ............................................................................................................... 29
14.15 Captions and Headings ....................................................................................................... 29
14.16 Interpretation ..................................................................................................................... 29
14.17 Entire Agreement ............................................................................................................... 29
14.18 Joint and Several Obligations .............................................................................................. 29
14.19 Recordation ....................................................................................................................... 29
14.20 Limitation on Liability ........................................................................................................ 29
14.21 Lienholder Protection ......................................................................................................... 30
14.22 Variances ........................................................................................................................... 30
14.23 Time of Essence ................................................................................................................. 30
PA12700A 2765'.12765 Restriction Agreement and Grant of Easements 09.13.06.DOC
¦

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PLAN
US PATENT #6126817ADDmoNAL PATENTs PENDING
DESIGNED TO FIT BMP, INC.
36"-48" DIAM. 53 MT. ARCHER ROAD, LYME, CT. 06379
STRUCTURES (800) 5048008 FAX [phone]
DESCRIPTION DATE SCALE
12R SNOUT OIL & 09/09/99 NONE
DEBRIS STOP DRAWING NUMBER
12R

1" PVC ANTI-SIPHON 6.50"
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U.S.PATENT #6126817AwmomL PA-mwa PENimm
DESIGNED TO FIT
48"-60" DIAM. BMP, INC.
STRUCTURES 53 MT. ARCHER ROAD, LYME, CT. 06371
(800) 5048008 FAX. [phone]
DESCRIPTION DATE SCALE
24R SNOUT OIL 09/13/99 NONE
& DEBRIS STOP DRAWING NUMBER
24R
1" PVC ANTI-SIPHON REMOVABLE WATERTIGHT
ACCESS PORT, 10" OPENING
PIPE ADAPTER 10.00" 034.00"
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U.S.PATENT #6126817AwmoNAL PATe m Po+om
PLAN
BMP, INC.
DESIGNED TO FIT 53 MT. ARCHER ROAD, LYME, CT. 06371
60"-72" DIAM. (800) 5048008 FAX.' [phone]
STRUCTURES DESCRIPTION DATE SCALE
30R SNOUT OIL 10/04/99 NONE
& DEBRIS STOP DRAWNG BM
30R
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DOCUMENTED 3rd PARTY PERFORMANCE:
Performance measured in multiple catch basins with SNOUT (drop inlets) over 2
year period in Peekskill, NY (Dutchess County) with flow to Peekskill Lake.
Mean TSS removals of 53% were recorded.'
Monitoring in Lower Makefield Twp., PA (Bucks County) with flow to Core Creek/
Lake Luxemburg of 9 SNOUT drop inlets show minimum TSS removals of 58%.2
ANECDOTAL PERFORMANCE MEASUREMENTS:
Multiple in line structures can improve solids removal performance and exceed
70% TSS removals. Various sites including Bryn Mawr Regional Stormwater
Facility, Bryn Mawr, PA
Removals of free oils can exceed 50%. Use of Oil Booms recommended for
longest term retention. Various sites including SeaTac, WA and BMP, Inc.
HOODED INLET FLOATABLE PERFORMANCE:
Floatable Trash and Debris Removals with hooded catch basins in New York City
show average litter retention of 85%.3
SOURCES:
1. Revised Restoration/Management Plan for Lake Luxembourg/CoreCreek
Watershed, Core Creek Park, Bucks County, Pennsylvania, Project No: 121.012
PA DEP, March 2005, (Princeton Hydro for Bucks County
Conservation District)
2. Structural Restoration Practices: A Collection of Successful Examples, F.
Lubnow, PhD, Princeton Hydro, February 2007
3. Combined Sewer Overflow Technology Fact Sheet Floatables Control
United States Environmental Protection Agency, Washington, D.C. EPA 832-
F99-008, September 1999
MD Office: Ph. [phone] Fax [phone] ? CT Office: Ph. [phone] Fax [phone]
www.bmpinc.com
Best Management Products, Inc.
Affordable Stormwater Quality and Quantity Control
SNOUT Reference Sheet
Individual Contacts Firm ST Phone Email
Joe Pereira P.E. Pereira Engineering, LLC CT 203-944-9944
c
oel212creiragpg.cgffl
Rob Lambert P.E. Site Engineering, LLC PA 610-240-0450 m sit - n in ers.co
Kin Lloyd, P.E. City of Glenwood S rin s CO 970-384-6439 i i I w o - s.c .u
Chris Carlson, P.E. City of Loveland CO 970-962-2774 carlsc ci.loveland.co.us
Paul Bucich P.E. City of Federal Way WA 253-835-2750 [e-mail]
Joe Baran P.E. Bohler Engineering PA 215-393-8300 ib .com
Steve Garland P.E. Sherman Carter Barnhart KY 859-224-1351 s arland scb.k
Tom Friese P.E. Pennoni Assoc. PA 215-222-3000 ffriese@,pennoni.com
Trace Robinson P.E. West Valle City UT 801-963-3204 trobi c s - I us
Jose Casio P.E. City of N. Miami Beach FL 305-948-2980 Jos a io ai mb. o
Firm Name Office Location ST Site Location Pro'ect Name
Bohannon Huston Inc. Albuquerque NM Sante Fe Industrial Park
RGS Engineering Brownstown PA Lancaster Co. PA Commercial Site
EMC Engineering Statesboro GA Statesboro, GA Commercial Site
Great Basin En r. Svcs. Salt Lake City UT Salt Lake City Industrial Park
Sanborn, Head Assoc. Westford MA Westfield MA Private School
CRS En ineers Salt Lake City UT SLC UT Commericial Development
Senate Engineering Pittsburgh PA Allegheny Co. PA Industrial Park
Green International Boston MA Boston, MA New Development
Shu Engineering Kitchener ON Kitchener ON Commercial Development
Rem a-Share Geneva IL Batavia IL Industrial Park
Pennoni Assoc. Allentown PA Allentown PA Power Company HQ LEEDS
Specifying Municipalities State Applications
Boston MA Roadway Inlets and Various
West Valle City UT Commercial Sites New Development
Sea Tac WA Res. & Comm.
Allentown PA Commercial Sites
Savannah GA New Development
Collier Count FL Roadway Inlets and Commercial Development
Bellingham MA New Development
Salinas CA Roadway Inlets and Structures
Denver CO Commercial Sites
Indiana olis IN Roadway Inlets
Newbur h NY Various Inlets
As of January, 2007, more than 27,000 SNOUTs have been installed. As BMP, Inc. sells primarily through
distributors, information on many projects is not readily available. For more installations please visit our web
site at www.bmpinc.com go to SITE MAP/ Installation Sites.
7 Mariners Walk Way Middle River, MD 21220 Ph. [phone] Fax [phone]
www.bmpinc.com
Presented at the Water Environment Federation Technical Exposition and Conference, Orlando, FL, 1998.
AN EVALUATION OF STORM DRAINAGE INLET DEVICES FOR
STORMWATER QUALITY TREATMENT
Robert Pitt, The University of Alabama at Birmingham*
Richard Field, Wet Weather Flow Research Program, U.S. Environmental Protection Agency,
*Department of Civil and Environmental Engineering
1075 le Street South Room 120
Birmingham, AL 35294 USA
ABSTRACT
The activities summarized in this paper included the testing of three representative stormwater control
devices that were located at storm drainage inlets. The two proprietary devices utilized screening and
filtering (using filter fabric and a coarser mesh). A conventional catchbasin inlet, having a sump, was also
tested for comparison. These devices were monitored in Stafford Township, NJ, to evaluate their removal
effectiveness for stormwater pollutants. Twelve paired samples collected at each device represented
composite inflow and outflow stormwater. The samples were split into filtered and unfiltered components for
extensive analyses of conventional and toxic pollutants. The experimental design was capable of identifying
significant pollutant removals of at least 15 to 50% at a 95% confidence level, depending on the pollutant.
The only significant pollutant removals were found during tests of a conventional catchbasin having a suitable
sump. The median removal rates were about 30% for suspended solids, about 40% for turbidity, about 15%
for color, and about 20% for total solids. No other pollutants were found to be significantly reduced. However,
the coarse screened inlet device was found to significantly reduce the discharges of trash and other large
debris. Unfortunately, flows passing through trapped material caught on the screen had increased
concentrations of suspended solids and volatile solids, probably due to washing of decomposing large
organic material through the screen. The filter fabrics tested in the laboratory showed about 50% removals
for suspended solids and COD, but they rapidly clogged, significantly shortening their run times and
minimizing any benefit from their use. This research was conducted in partial fulfillment of cooperative
agreement no. CR 819573 under the sponsorship of the U.S. Environmental Protection Agency.
BACKGROUND
Storm drainage system inlet structures can be separated into three general categories. The first category is
a simple inlet that is comprised of a grating at the curb and a box, with the discharge located at the bottom
of the box which connects directly to the main storm drainage or combined sewerage. This inlet simply
directs the runoff to the drainage system and contains no attributes that would improve water quality.
However, large debris (several cm in size) may accumulate (if present in the stormwater, which is unlikely).
The second type of inlet is similar to the simple inlet, but it contains a sump that typically extends 0.5 to 1
m below the bottom of the outlet. This is termed a catchbasin in the U.S., or a gully pot in the U.K., and has
been shown to trap appreciable portions of the course sediment. The third category is also similar to the
simple inlet, but contains some type of screening to trap debris. These include small cast iron perforated
buckets placed under the street grating, as used in Germany, large perforated and lipped stainless steel
plates placed under the street grating, as used in Austin, Texas, and a number of proprietary devices
incorporating filter fabric or other types of screening placed to intercept the stormwater flow.
Over the past 85 years, there has been extensive use of catchbasins for coarse material removal from
stormwater runoff (Lager, et al. 1977), mainly to reduce sedimentation problems in the storm drainage
system. Catchbasins have also been utilized in Europe for over a century. The purpose of catchbasins
historically has been to prevent the clogging of sewer lines with sediment and organic debris, and to prevent
odors from escaping from the sewers by creating a water seal. Over the years, many different styles of
catchbasins have been used, and many different enhancement devices have been added to increase their
effectiveness. According to Lager, et al. (1977), catchbasins were considered marginal in performance as
early as the turn of the century. They felt that the use of catchbasins may be more of a tradition for most
municipalities rather than a practice based on performance. Sartor and Boyd (1972) suggested that all
catchbasins should be filled in, citing their ineffectiveness at removal of pollutants and the threat of slug
pollution of the scoured material. Grottker (1990) was more positive. He reports of an inlet design in
Germany that is modified with sumps and a primary filter to screen out the larger debris. He recommended
the modified device as a cost-saving device that improves water quality.
Catchbasin performance has been investigated for some time in the U.S. Sartor and Boyd (1972) conducted
controlled field tests of a catchbasin in San Francisco, using simulated sediment in fire hydrant water flows.
They sampled water flowing into and out of a catchbasin for sediment and basic pollutant analyses. Lager,
et al. (1977) was the first EPA funded research effort that included a theoretical laboratory investigation to
evaluate sedimentation in catchbasins and to develop effective designs. They also conducted extensive
laboratory tests using simulated runoff.
The mobility of catchbasin sediments was investigated by Pitt (1979). Long-duration tests were conducted
using an "idealized" catchbasin (based on Lager, et al.'s 1977 design), retro-fitted in San Jose, CA. The
research focused on re-suspension of sediment from a full catchbasin over an extended time period. It was
concluded that the amount of catchbasin and sewerage sediment was very large in comparison with storm
runoff yields, but was not very mobile. Cleaning catchbasins would enable them to continue to trap
sediment, instead of reaching a steady-state loading and allowing subsequent stormwater flows to pass
through untreated.
Pitt (1985) statistically compared catchbasin supernatant with outfall water quality and did not detect any
significant differences. However, Butler, et al. (1995) have recently investigated gully pot supernatant water
and have found that it may contribute to the more greatly polluted first flush of stormwater reported for some
locations. Speck problems have been associated with the anaerobic conditions that rapidly form in the
supernatant water during dry weather, causing the release of oxygen demanding material, ammonium, and
possible sulfides. These anaerobic conditions also affect the bioavailability of the heavy metals in the flushed
water.
Catchbasins, simple inlets, man-holes, and sewerage sediment accumulations were monitored at more than
200 locations in Bellevue, Washington, in two mixed residential and commercial study areas (Pitt 1985).
These locations were studied over three years to monitor accumulation of sediment and sediment quality.
The sediment in the catchbasins and the sewerage was found to be the largest particles that were washed
from the streets. The sewerage and catchbasin sediments had a much smaller median particle size than the
street dirt and were therefore more potentially polluting than the particulates that can be removed by street
cleaning. Cleaning catchbasins twice a year was found to allow the catchbasins to capture particulates
most effectively. This cleaning schedule was found to reduce the total residue and lead urban runoff yields
by between 10 and 25 percent, and COD, total Kjeldahl nitrogen, total phosphorus, and zinc by between 5
and 10 percent (Pitt and Shawley 1982).
Catchbasins have been found to be effective in removing pollutants associated with coarser runoff solids (Pitt
1985). High reductions in total and suspended solids (up to 45% reduction for low gutter flows) were
indicated by a number of prior studies (such as Pitt 1979, Aronson, et al. 1983, and Pitt 1985). However,
relatively few pollutants are associated with these coarser solids (Pitt 1979 and Pitt 1985). Pitt (1985) found
that catchbasins will accumulate sediments until the sediments reach about 60% of the total sump capacity
(or to about 0.3 m under the catchbasin outlet). After that level, the sediment is at an equilibrium, with scour
balancing new deposition. Earlier EPA research (Lager, et al. 1977) found that an optimal catchbasin design
should have the following dimensions: if the outlet pipe is D in diameter, its bottom should be located about
2.513 below the street level and 4D from the bottom of the catchbasin sump. The overall height of the
catchbasin should therefore be 6.513, with a diameter of 4D.
Butler, et aL (1995) found that the median particle size of the sump particles was between about 300 and
3000 µm, with less than 10% of the particles smaller than 100 µm, near the typical upper limit of particles
found in stormwater. Catchbasin sumps therefore trap the largest particles that are flowing in the water, and
allow the more contaminated finer particles to flow through the inlet structure. Butler, et aL (1995) and Butler
and Karunaratne (1995) present sediment trapping equations for sediment in gully pots, based on detailed
laboratory tests. The sediment trapping performance was found to be dependent on the flow rate passing
through the gully pot, and to the particle sizes of the sediment. The depth of sediment in the gully pot had a
lesser effect on the capture performance. In all cases, decreased flows substantially increased the trapping
efficiency and larger particles had substantially greater trapping efficiency than smaller particles, as
expected.
METHODOLOGY
Three storm drain inlet devices were evaluated in Stafford Township, New Jersey. An optimally designed
catchbasin with a sump and two representative designs that used filter material. Henderson & Breen
Environmental Engineers of Forked River, New Jersey, oversaw the field installations, sampling, and
shipping of the samples to the University of Alabama at Birmingham (UAB) for analyses. The inlet devices
were located in a residential area. The monitoring program included 12 inlet and effluent samples from these
devices over several different storms. Complete organic and metallic toxicant analyses, in addition to
conventional pollutants, were included in the analytical program. A total of 144 analyses were therefore
conducted for each parameter that was partitioned into unfiltered and filtered portions, and 72 analyses were
conducted for the samples that were not partitioned. In addition to these field tests, controlled tests were
also conducted in the laboratory to further evaluate filter fabrics used in some inlet devices.
Samples were analyzed for a wide range of toxicants using very low detection limits (about 1 to 10 pg/Q.
The constituents analyzed include heavy metals and organics (phenols, PAHs, phthalate esters, and
chlorinated pesticides). Particle size distributions, using a Coulter Multi-Sizer II, were also made, in addition
to conventional analyses for COD, major ions, nutrients, suspended and dissolved solids, turbidity, color,
pH, and conductivity. All samples were also partitioned into filterable and non-filterable components before
COD and toxicant analyses to better estimate fate and treatability. All samples were also screened using
the Microtox toxicity test to measure relative reductions in toxicity associated with the inlet devices.
Description of Inlet Devices Tested
Conventional Catchbasin with Sump
A sump was installed in the bottom of an existing storm drain inlet by digging out the bottom and placing a
section of 36 inch concrete pipe on end. The outlet pipe was reduced to 8 inches and the sump depth was
36 inches. Inlet water was sampled before entering the catchbasin, while outlet water was sampled after
passing through the unit.
Filter Fabric Unit
A filter fabric unit, having a set of dual horizontal trays, each containing about 0.1 mz of filter fabric, was
retro-fitted into one of the existing inlets for testing. When the filter fabric clogs on the upper tray, the
stormwater overflows a small rectangular weir, onto another similar tray located beneath the upper tray.
Again, paired samples were obtained above and under the unit for analyses. According to the manufacturer,
this system can handle up to 300 gallons per minute. The unit tested has mostly been replaced by the
manufacture with a new type of catchbasin filter that also includes a selection of filtering media.
Coarse Filter Unit
A coarse filter was also retro-fitted into an existing stormdrain inlet. This unit uses a relatively coarse foam
material (about 1mm cell diameter and 8 mm thick) that is sandwiched between two pieces of galvanized
screening for support. This unit was fitted in the inlet, sealed along the bottom and sides on the outlet side,
forcing any water through the unit before it is discharged. The filter was placed in front of the catchbasin
outlet in a near vertical position. Its main purpose is to filter debris, including leaves and grass clippings,
from stormwater. As with the other units, the inlet and outlet water was simultaneously sampled for
analyses.
RESULTS
Measuring the reduction of pollutants by the storm drainage inlet devices was the primary objective of this
study. Table 1 indicates the percent reduction in pollutant concentrations from influent to effluent. The
numbers in parenthesis indicate the probability that the influent is equal to the effluent. Probability values
less than 0.05 are indicated in bold print. Table 2 lists the mean concentrations in the influent and effluent
samples, along with the observed coefficients of variations. The catchbasin with the sump was the only
device that showed important and significant removals for several pollutants:
total solids (0 to 50%, average 22%).
suspended solids (0 to 55%, average 32%).
turbidity (0 to 65%, average 38%).
color (0 to 50%, average 24%).
Figures 1 through 3 are example box plots for the three inlet devices for suspended solids and COD.
Table 1 highlights the significant concentration changes observed for the three storm drain inlet devices
tested, using a paired sample, Wilcoxon Signed Rank test. Only the catchbasin with a sump was found to
have significant (and important) concentration reductions for major parameters. The coarse screen unit
showed consistent washout of material, while both the coarse screen unit and the catchbasin showed slight
increases for several major ions, most likely associated with contact with concrete and other drainage
system materials. The catchbasin performance (32% removal for suspended solids) is within the range
reported during earlier studies, as reported previously.
None of the other parameters or inlet devices demonstrated significant differences between the influent and
effluent water (at the 95% confidence level, or better), except for the filter fabric unit which showed a small
removal for nitrate. Several significant and large increases in major ion concentrations were noted for the
catchbasin (bicarbonate, magnesium, and calcium) and for the coarse screen unit (bicarbonate, and
potassium). These increases, which are not believed to be very important, may have been due to the runoff
water being affected by the concrete in the inlet devices. These increases are likely part of the general
process where runoff water increases its alkalinity and buffer capacity as it flows through urban areas.
The significant and large increases in total solids, suspended solids, volatile solids, and conductivity for the
coarse screen unit imply washout of decomposing collected organic solids (mostly leaves). The coarse
screen unit traps large debris, including decomposable organic material, behind the screen. Stormwater
then flows through this material as it passes through the screen, as in most inlet screening/filtering devices.
If not frequently removed, this organic material may decompose and wash through the screen in subsequent
storms. The large debris was not represented in the influent water samples, but after partial decomposition,
this material could have added to the solids concentrations in the effluent samples.
The catchbasin did not exhibit this increase in solids concentrations likely because the collected material is
trapped in the sump and not subjected to water passing through the material. Previous catchbasin tests
found that catchbasin supernatant water quality is not significantly different from runoff water quality, nor is
the collected debris easily or commonly scoured from the sump. The filter fabric unit did not exhibit this
increase in solids, possibly because it trapped relatively small amounts of debris, and the overflow weirs
allowed the subsequent stormwater to flow over the trapped debris instead of being forced through the
debris.
4
SUGGESTIONS FOR OPTIMAL STORM DRAINAGE INLET USE
The best catchbasin configuration for a specific location would be dependent on site conditions and would
probably incorporate a combination of features from several different inlet designs. The primary design
should incorporate a catchbasin with a sump, as described by Lager, et aL (1977), with an inverted (hooded)
outlet. If large enough, catchbasins with sumps have been shown to provide a moderate level of suspended
solids reductions in stormwater under a wide range of conditions in many studies in the U.S. and Europe.
The use of filter fabrics in catchbasins is not likely to be beneficial because of their rapid clogging from
retained sediment and trash. The use of coarser screens in catchbasin inlets is also not likely to result in
water quality improvements, based on conventional water pollutant analyses. However, well designed and
maintained screens can result in substantial trash and litter reductions. It is important that the screen not
trap organic material in the flow path of the stormwater. Prior research (Pitt 1979 and 1985) has shown that
if most of the trapped material is contained in the catchbasin sump, it is out of the direct flow path and
unlikely to be scoured during high flows, or to degrade overlying supernatant water. Storm drainage inlet
devices also should not be considered as leaf control options, or used in areas having very heavy trash
loadings, unless they can be cleaned after practically every storm.
The goal is a storm drainage inlet device that:
• does not cause flooding when it clogs with debris,
• does not force stormwater through the captured material,
• does not have adverse hydraulic head loss properties,
• maximizes pollutant reductions, and
• requires inexpensive and infrequent maintenance.
The following suggestions and design guidelines should meet some of these criteria. These options are all
suitable for retro-fitting into existing simple storm drainage inlets. However, the materials used should be
concrete, plastic, aluminum or stainless steel; especially do not use galvanized metal or treated woods.
Catchbasins in newly developing areas could be more optimally designed than the suggestions below,
especially by enlarging the sumps and by providing large and separate offset litter traps.
1) The basic catchbasin (having an appropriately sized sump with a hooded outlet) should be used in most
areas. This is the most robust configuration. In almost all full-scale field investigations, this design has been
shown to withstand extreme flows with little scouring losses, no significant differences between supernatant
water quality and runoff quality, and minimal insect problems. It will trap the bed-load from the stormwater
(especially important in areas using sand for traction control) and will trap a low to moderate amount of
suspended solids (about 30 to 45% of the annual loadings). The largest fraction of the sediment in the
flowing stormwater will be trapped, in preference to the finer material that has greater amounts of associated
pollutants. Their hydraulic capacities are designed using conventional procedures (grating and outlet
dimensions), while the sump is designed based on the desired cleaning frequency- Figure 4 is this basic
recommended configuration.
An estimate of the required catchbasin sump volume and cleanout frequency can be estimated. For
example, assume the following conditions:
• paved drainage area: 1.3 ha (3.3 acres),
• 250 mg/L suspended solids concentration, and
• 640 mm (25 in) of rain per year.
The sediment accumulation rate in the catchbasin sump would be about 0.24 m3/ha (3.4 ft3/acre) of
pavement per year. For a 1.3 ha (3.3 acre) paved drainage area, the annual accumulation would therefore be
about 0.3 m3 (10 ft3). The catchbasin sump diameter should be at least four times the diameter of the outlet
pipe. Therefore, if the outlet from the catchbasin is a 250 mm (10 in) diameter pipe, the sump should be at
least 1 m (40 in) in diameter (having a surface area of 0.8 m3, or 9 ft2). The annual accumulation of sediment
in the sump for this situation would therefore be about 0.4 m (1.3 ft). If the sump was to be cleaned about
every two years, the total accumulation between cleanings would therefore be about 0.8 m (2.6 ft). An extra
0.3 m (1 ft) of sump depth should be provided as a safety factor because of potential scour during unusual
rains. Therefore, a total sump depth of at least 1.1 m (3.6 ft) should be used. In no case should the total
sump depth be less than about 1 m (3 ft) and the sump diameter less than about 0.75 m (2.5 ft). This would
provide an effective sump volume of about 0.8 m3 (9 ft) assuming a safety factor of about 1.6.
2) A relatively safe add-on to the basic recommended configuration is an adverse slope inclined screen
covering the outlet side of the catchbasin, as shown in Figure 5. The inclined screen would be a relatively
coarse screening that should trap practically all trash of concern. The bottom edge of the inclined screen
would be solidly attached to the inside wall of the catchbasin below the inverted outlet. The screen would tilt
outwards so it covers the hooded outlet. The sides of the screen need to be sealed against the side of the
catchbasin. The top edge of the screen would extend slightly above the normal water surface. A solid top
plate would extend out from the catchbasin wall on the outlet side covering the top opening of the inclined
screen. This plate would overhang the top of the screen, but provide a slot opening above the screen for an
overflow in case the screen was clogged. The slot opening should be several inches high and extend the
width of the catchbasin. This design will also capture grit and the largest suspended solids, plus much of
the trash. This design would allow the trapped material to fall into the sump instead of being forced against
the screen by out flowing water.
3) Another option that may be suitable for trapping large litter, such as Styrofoam cups and fast food
wrappings, and that also minimizes flow obstructions, uses a bar screen. The inclined coarse screen,
described in the above option, will trap smaller litter, such as cigarette butts. This is the same catchbasin
inlet with sump and inclined coarse screen as shown above, but it also has a bar screen under the whole
area of the inlet grating, especially under large curb openings. In almost all cases, storm drainage inlets
have gratings that have moderate sized openings which would prevent large trash from entering the inlet.
However, most also have wide openings along the curb face where litter can be washed into the inlet. The
bar screen is designed to capture litter that would enter through the wide openings. The bar screen is
steeply sloped towards a covered litter trap, preferably in an adjacent chamber.
The bars should be spaced no less than'/. inch and possibly as much as one inch apart, as the objective is
to capture large debris. Water passing through the bars should wash the debris towards the covered litter
trap, with minimal clogging problems. The covered litter trap should be as large as possible and located
above the water level, with drain holes. Since much of the debris would be floatables, any underwater
storage volume would have minimal benefit. A nylon net bag, for example, could be inserted into a frame to
make litter removal easy and to allow drainage. The litter trap is covered and offset to minimize water flowing
directly through it and it is held above the water to minimize water contact with the litter before it is removed-
Plastic bags, large pieces of paper, and large leaves may still fall through the bar screen, or wrap around the
bars and cause partial blockages. Therefore, frequent inspections and cleanups will be needed. In addition,
the size of the trap is limited and may fill quickly, also requiring frequent inspections and cleanups. This
option should only be used in areas having trash that needs to be controlled, not in areas having large
amounts of leaf or other vegetative trash that would overload the unit. The obvious locations for this option
would be in strip commercial and other downtown areas having minimal landscaping that would contribute
organic debris, but having large amounts of litter. Urban freeways, downtown malls and night club districts
would be examples of suitable locations. Commitments to inspect (and possibly clean) after most storms,
especially those having long interevent periods where trash accumulations may be high, must be made
before this option is viable.
4) The use of filter fabrics as an integral part of a storm drain inlet is not recommended. Their biggest
problem is their likelihood of quickly clogging. Tests during this research showed that they may provide
important reductions (about 50%) in suspended solids and COD. However, the filter fabrics can only
withstand about 1 to 2 mm accumulation of sediment before they clog. This is about 4 kg of sediment per
square meter of fabric. If runoff had a suspended solids concentration of 100 mg/L, the maximum loading of
stormwater tolerated would be about 40 meters. For a typical application (1 ha paved drainage area to a 1
M2 filter fabric in an inlet box), only about 5 to 10 mm of runoff could be filtered before absolute clogging.
REFERENCES
Aronson, G., D. Watson, and W. Pisano. Evaluation of Catchbasin Performance for Urban Stormwater
Pollution Control. U.S. EPA. Grant No. R-804578. EPA-600/2-83-043. 78 pages. Cincinnati, June 1983.
Butler, D. and S.H.P.G. Karunaratne. "The suspended solids trap efficiency of the roadside gully pot_" Wat.
Res. Vol. 29, No. 2. pp. 719-729.1995.
Butler, D., Y. Xiao, S.H.P.G. Karunaratne, and S. Thedchanamoorthy. "The gully pot as a physical and
biological reactor." Wat. Sci. Tech. Vol. 31, No. 7, pp. 219-228. 1995.
EDP (Environmental Design and Planning, Inc.). Evaluation of Catchbasin Monitoring. Contract No.
R804578010, U.S. Environmental Protection Agency, Cincinnati, Ohio, March 1980.
Grottker, M. "Pollutant removal by gully pots in different catchment areas." The Science of the Total
Environment. Vol. 93. pp. 515-522.1990.
Lager, J.A., W.G. Smith, W.G. Lynard, R.M. Finn, and E.J. Finnemore. Urban Stormwater Management and
Technology. Update and Users' Guide. U.S. Environ. Protection Agency, EPA-600/8-77-014, 313 p.
Cincinnati, Ohio, September 1977.
Pitt, R. Demonstration of Nonpoint Pollution Abatement Through Improved Street Cleaning Practices. U.S.
EPA. Grant No. S-804432. EPA-600/2-79-161. 270 pages. Cincinnati, August 1979.
Pitt, R. and G. Shawley. A Demonstration of Non-Point Source Pollution Management on Castro Valley
Creek. Alameda County Flood Control and Water Conservation District (Hayward, CA) for the Nationwide
Urban Runoff Program, U.S. Environmental Protection Agency, Water Planning Division, Washington, D.C.,
June 1982.
Pitt, R. Characterizing and Controlling Urban Runoff through Street and Sewerage Cleaning. U.S. EPA.
Contract No. R-805929012. EPA/2-85/038. PB 85-186500/AS. 467 pages. Cincinnati, June 1985.
Sartor, J. and G. Boyd. Water Pollution Aspects of Street Surface Contaminants. U.S. EPA. Contract No.
14-12-921. EPA-R2-72-081. 236 pages. Washington, D.C., November 1972.
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Table 1. Storm Drain Inlet Device Performance Summary for Selected Pollutants
(Percent Reduction and Statistical Probability that Difference is Random)
Pollutant Catchbasin with
Sump
% Reduction Coarse Screen Unit
% Reduction (p) Filter Fabric Unit
% Reduction (p)
Total Solids 22 0.03 -28 (0.014) 5.6 (0.28)
Dissolved Solids 8.3 0.68) -16 (0.13) 3.4 (0.32)
Suspended Solids 32 0.0098) -56 (0.054) 8.1 (0.70
Volatile Total Solids 6.3 (0.62 -40 (0.049) 0.0 (0.95
Volatile Dissolved Solids 6.8 (0.77) -21 (0.32 4.4 0.97
Volatile Suspended Solids 34 (0.43) -42 (0.55) -8.3 (1.00)
Differential Volume >4 and
<5 -46 (0.81) -67 (1.00) -2.2 (1.00)
Differential Volume >16
and <20 26 (1.00) -23 (0.44) 43 (0.22)
Differential Volume >60
and <65 -46 (0.13) -87 (0.23) -23 (0.69)
Toxicity - unfiltered 7.8 0.91 -33 0.15 18 0.20
Toxicity - filtered 1.6 0.92 -2.9 0.57 -18 0.62
Turbidity - unfiltered 38 0.019 -6.6 0.30 0.95 0.32
Turbidity - filtered 34 0.70 12 0.27 -18 0.62
Color - unfiltered 16 (0.083) -14 (0.15) -1.1 (0.73)
Color - filtered 24 0.052 -36 0.68 -3.0 0.85
Conductivity - unfiltered -11 0.084 -14 0.052 1.2 0.91
H - unfiltered 0.2 0.64 -1.0 0.10 -0.58 0.13
COD - unfiltered 11 0.47 -19 0.58 -0.91 0.85
COD -filtered -49 (0.42 -36 (0.41) 19 (0.79)
Carbonate - unfiltered -42 (0.27 -22 (0.56) 14 (0.43)
Bicarbonate - unfiltered -27 (0.0024) -21 (0.019) 0.08 0.52)
Fluoride - filtered -5.6 (0.44) -114 (1.00) 86 (1.00)
Chloride - filtered -4.8 (0.97) -11 (0.46) 0.08 0.65)
Nitrite - filtered all nd as nd all nd
Nitrate - filtered -17 (0.12) -12 (0.28) 6.1 (0.00240/6)
Sulfate - filtered -12 (0.79) -15 (0.41) 2.6 0.34)
Lithium - filtered all nd all nd all nd
Sodium -filtered 2.8 (0.70 -9.7 (0.30) -1.8 (0.32)
Ammonium -filtered -13 (0.84) 5.2 (0.64 -19 (0.50)
Potassium - filtered -6.6 (0.47) -17 (0.042) -7.1 0.34)
Magnesium -filtered -15 (0.0034) -25 (0.24) 2.7 (0.91)
Calcium - filtered -31 (0.0005) -24 (0.21 0.8 (0.52
10
Table 2. Mean and Coefficient of Variation of Influent and Effluent Samples
Catchbasin Coarse Screen Unit Filter Fabric Unit
Mean COV Mean COV Mean COV
Total Solids, mg/L Influent 122 0.54 73 0.94 86.1 0.57
Effluent 95 0.52 93 0.92 812 0.56
Dissolved Solids,
mg/L Influent 48 0.51 51 1.00 462 0.71
Effluent 44 0.49 59 1.08 44.6 0.76
Suspended Solids,
mg/L Influent 75 0.75 22 0.96 39.9 0.85
Effluent 51 0.62 34 0.79 36.7 0.72
Volatile Total
Solids, mg/L Influent 28 0.52 20 0.85 21.9 0.49
Effluent 26 0.51 28 0.77 21.9 0.46
Volatile Dissolved
Solids, m /L Influent 12 0.41 9 0.87 9.58 0.74
Effluent 11 0.78 11 1.00 9.17 0.66
Volatile Suspended
Solids, m /L Influent 16 0.90 12 1.03 12 0.86
Effluent 15 0.59 17 0.83 13 0.59
Differential Solids
Volume >4 and <5
um Influent 2,219,178 0.89 405,759 0.75 3,477,951 0.92
Effluent 3,250,458 0.68 678,747 0.95 3,553,763 0.86
Differential Solids
Volume >16 and
>20 um Influent 2,821,656 1.47 3,019,100 0.85 2,341,839 0.88
Effluent 2,096,122 1.15 3,715,339 0.83 1,328,777 028
Differential Solids
Volume >50 and
>65um Influent 706,713 1.62 1,144,943 0.82 288,749 0.66
Effluent 1,034,633 1.66 2,139,047 0.97 354,953 0.82
Toxicity -
unfiltered, 125%
reduction Influent 9.7 0.92 14.7 0.55 19.3 0.69
Effluent 8.9 0.91 19.5 0.80 15.8 1.69
Toxicity - filtered,
125% reduction Influent 15.3 0.60 20.0 0.81 20.3 0.49
Effluent 15.1 0.67 20.6 0.71 23.9 0.69
Turbidity -
unfiltered, NTU Influent 59.9 0.79 6.9 0.94 21.0 0.69
Effluent 37.1 0.79 7.3 0.78 20.8 0.78
Turbidity - filtered,
NTU Influent 5.0 0.98 0.678 0.77 1.7 0.92
Effluent 3.3 1.38 0.597 0.59 1 A 0.72
Color - unfiltered,
HACH Influent 62.6 0.54 25.0 0.85 37.3 0.43
Effluent 52.6 0.56 28.6 0.83 37.7 0.46
Color - filtered,
HACH Influent 26.2 0.43 19.2 1.19 16.9 0.40
Effluent 19.9 0.40 20.3 1.18 16.4 0.38
Conductivity -
unfiltered, 1&S/cm Influent 56.3 0.61 79.0 0.93 71.8 0.69
Effluent 62.6 0.55 90.4 0.99 71.0 0.71
11
Table 2. Mean and Coefficient of Variation of Influent and Effluent Samples (Continued)
Catchbasin Coarse Screen Unit Filter Fabric Unit
Mean COY Mean COV Mean COV
H - Unfiltered Influent 6.96 0.02 6.66 0.03 6.89 0.02
Effluent 6.95 0.03 6.73 0.03 6.93 0.02
COD - unfiltered,
mg/L Influent 22.8 0.50 35.8 1.03 27.3 0.92
Effluent 20.3 0.48 42.6 1.38 27.6 0.78
COD - filtered,
mg/L Influent 10.0 0.86 26.6 1.32 15.2 1.20
Effluent 14.9 1.00 36.1 1.72 12.3 1.29
Carbonate -
unfiltered, mg/L Influent 0.01 0.97 0.005 0.44 0.012 0.72
Effluent 0.02 0.73 0.006 0.72 0.010 0.65
Bicarbonate -
unfiltered, m /L Influent 22.26 0.22 14.28 0.28 18.27 0.27
Effluent 28.20 0.25 17.31 0.32 18.26 0.23
Fluoride - filtered,
m /L Influent 0.018 2.04 0.003 1.99 0.007 2.30
Effluent 0.019 2.04 0.011 1.70 0.001 2.38
Chloride - filtered,
m /L Influent 4.951 0.62 5.151 1.15 7.11 1.17
Effluent 5.187 0.61 5.739 1.09 7.11 1.17
Nitrate - filtered
m /L Influent 1.067 0.82 2.457 1.24 1.07 1.29
Effluent 1.247 0.72 2.749 1.30 1.59 1.37
Sulfate - filtered
m /L Influent 3.856 0.49 5.800 1.06 4.07 1.08
Effluent 4.328 0.59 6.651 1.18 3.96 1.14
Sodium - filtered,
mg/L Influent 3.771 0.49 3.946 1.14 6.67 0.88
Effluent 3.665 0.50 4.327 1.16 6.79 0.87
Ammonium -
filtered, mg/L Influent 0.219 1.03 0.287 1.01 0.37 1.01
Effluent 0.248 0.91 0.272 1.01 0.44 0.93
Potassium -
filtered, mg/L Influent 0.834 0.37 0.443 0.67 0.48 0.78
Effluent 0.889 0.44 0.519 0.71 0.51 0.70
Magnesium -
filtered, mg/L Influent 0.725 0.60 0.645 0.78 0.51 0.71
Effluent 0.834 0.55 0.808 1.06 0.50 0.76
Calcium - filtered,
m /L Influent 3.60 0.35 3.438 0.65 2.82 0.54
Effluent 4.72 0.32 4.247 0.82 2.84 0.57
Lead - unfiltered
/L Influent 5.28 1.06 3.45 1.79 6.25 1.30
Effluent 3.36 0.74 4.97 1.41 7.04 0.92
Lead - filtered I&g/L Influent 1.37 1.15 0.944 1.65 0.60 1.11
Effluent 1.25 1.17 0.587 1.98 0.79 1.31
Copper - unfiltered
Itg/L Influent 30.63 0.26 37.79 0.49 24.9 0.38
Effluent 25.58 0.32 36.34 0.48 24.6 0.39
Copper - filtered
IL Influent 15.5 0.59 21.62 0.92 15.8 0.70
Effluent 16.5 0.55 20.79 0.74 16.5 0.60
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