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HomeMy WebLinkAbout22037_Clayton Spinning Mill_Package Approved for Public Comment_20190403 22037-18-051 / Clayton Spinning Mill 1 Property Owner: Spinning Mill Investments, LLC Recorded in Book ____, Page ____ Associated plat recorded in Plat Book ____, Page ____ NOTICE OF BROWNFIELDS PROPERTY Site Name: Clayton Spinning Mill Brownfields Project Number: 22037-18-051 This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat component, have been filed this _____ day of __________________, 201__ by Spinning Mill Investments, LLC (“Prospective Developer”). This Notice concerns contaminated property. A copy of this Notice certified by the North Carolina Department of Environmental Quality (“DEQ”) is required to be filed in the Register of Deeds’ Office in the county or counties in which the land is located, pursuant to North Carolina General Statutes (“NCGS”), § 130A-310.35(b). This Notice is required by NCGS § 130A-310.35(a), in order to reduce or eliminate the danger to public health or the environment posed by environmental contamination at a property (“Brownfields Property”) being addressed under the Brownfields Property Reuse Act of 1997, NCGS § 130A, Article 9, Part 5 (“Act”). Pursuant to NCGS § 130A-310.35(b), the Prospective Developer must file a certified copy of this Notice within 15 days of Prospective Developer’s receipt of DEQ’s approval of the Notice or Prospective Developer’s entry into the Brownfields Agreement required by the Act, whichever is later. The copy of the Notice certified by DEQ must be recorded in the grantor index under the names of the owners of the land and, if Prospective Developer is not the owner, also under the Prospective Developer’s name. The Brownfields Property is located at 300 Mill Street in Clayton, North Carolina and is comprised of three parcels with parcel identification numbers 166918-30-7238, 166918-40-3804, and 166918-30-4740 totaling 31.5977 acres. The site was first developed in 1900 as a cotton 22037-18-051 / Clayton Spinning Mill 2 spinning mill. A lumber planing mill and single family residences were also present on the Brownfields Property dating back to at least 1909. Operations at the lumber planing mill had ceased before 1961 and operations at the cotton mill ceased in 1976. Only the cotton mill building remains. Prospective Developer has committed itself to redevelopment for no uses other than high-density residential, office, restaurant, open space, recreation, parking, and subject to DEQ’s prior written approval, other commercial uses. The Brownfields Agreement between Prospective Developer and DEQ is attached hereto as Exhibit A. It sets forth the use that may be made of the Brownfields Property and the measures to be taken to protect public health and the environment, and is required by NCGS § 130A-310.32. The Brownfields Agreement’s Exhibit 2 consists of one or more data tables reflecting the concentrations of and other information regarding the Property’s regulated substances and contaminants. Attached as Exhibit B to this Notice is a reduction, to 8 1/2" x 11", of the survey plat component of this Notice. This plat shows areas designated by DEQ, has been prepared and certified by a professional land surveyor, meets the requirements of NCGS § 47-30, and complies with NCGS § 130A-310.35(a)’s requirement that the Notice identify: (1) The location and dimensions of the areas of potential environmental concern with respect to permanently surveyed benchmarks. (2) The type, location and quantity of regulated substances and contaminants known to exist on the Brownfields Property. Attached hereto as Exhibit C is a legal description of the Brownfields Property that would be sufficient as a description of the property in an instrument of conveyance. LAND USE RESTRICTIONS NCGS § 130A-310.35(a) also requires that the Notice identify any restrictions on the current and future use of the Brownfields Property that are necessary or useful to maintain the level of protection appropriate for the designated current or future use of the Brownfields Property and that are designated in the Brownfields Agreement. The restrictions shall remain in force in perpetuity unless canceled by the Secretary of DEQ (or its successor in function), or his/her designee, after the hazards have been eliminated, pursuant to NCGS § 130A-310.35(e). All references to DEQ shall be understood to include any successor in function. The land use restrictions below have been excerpted verbatim from paragraph 15 of the Brownfields Agreement, and all subparagraph letters/numbers are the same as those used in the Brownfields Agreement. The following land use restrictions are hereby imposed on the Brownfields Property: a. No use may be made of the Brownfields Property other than high-density residential, office, restaurant, open space, recreation, parking, and subject to DEQ’s prior written approval, other commercial uses. For purposes of this restriction, the following definitions 22037-18-051 / Clayton Spinning Mill 3 apply: i. “High-density Residential” is defined as permanent dwellings where residential units are attached to each other with common walls, such as condominia, apartments, group homes, dormitories or boarding houses, and any property outside the dwelling structures is usable by all residents and not privately owned as part of a particular unit, and may include related amenities, such as pools, clubhouses, courtyards, common areas, recreation areas and parking garages ii. “Office” is defined as the provision of business or professional services. iii. “Open space” is defined as land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways, or detention facilities for storm water. iv. “Recreation” is defined as indoor and outdoor exercise-related, physically focused, or leisure-related activities, whether active or passive, and the facilities for same, including, but not limited to, studios, swimming pools, sports-related courts and fields, open space, greenways, parks, playgrounds, walking paths, and picnic and public gathering areas. v. “Restaurant” is defined as a commercial business establishment that prepares and serves food and beverages to patrons. vi. “Parking” is defined as the temporary accommodation of motor vehicles in an area designed for same. vii. “Commercial” is defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee. For the purposes of this Agreement, this excludes operations which use petroleum hydrocarbons or chlorinated solvents. b. The Brownfields Property may not be used for child care centers, adult care centers or schools without the prior written approval of DEQ. c. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an Environmental Management Plan (“EMP”) approved in writing by DEQ in advance (and revised to DEQ’s written satisfaction prior to each subsequent redevelopment phase) that is consistent with all the other land use restrictions and describes redevelopment activities at the Brownfields Property, the timing of redevelopment phases, and addresses health, safety and environmental issues that may arise from use of the Brownfields Property during construction or redevelopment in any other form, including without limitation: i. soil and water management issues, including without limitation those resulting from contamination identified in the Environmental Reports; ii. issues related to potential sources of contamination referenced in Exhibit 2 to this Agreement; iii. contingency plans for addressing, including without limitation the testing of soil and groundwater, newly discovered potential sources of environmental contamination (e.g., USTs, tanks, drums, septic drain fields, oil-water separators, soil contamination); and iv. plans for the proper characterization of, and as necessary, disposal of contaminated soils excavated during redevelopment. 22037-18-051 / Clayton Spinning Mill 4 d. Groundwater at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ. e. No activity that disturbs soil on the Brownfields Property may occur unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public health and the environment, except: i. in connection with landscape planting to depths not exceeding 24 inches; ii. mowing and pruning of above-ground vegetation; iii. for repair of underground infrastructure, provided that DEQ shall be given written notice at least seven days in advance of a scheduled repair (if only by email) of any such repair, or in emergency circumstances no later than the next business day, and that any related assessment and remedial measures required by DEQ shall be taken and; iv. in connection to work conducted in accordance with the EMP as outlined above in subparagraph 15.c. f. Soil may not be removed from, or brought onto, the Brownfields Property without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless conducted in accordance with an approved EMP as outlined above in subparagraph 15.c. g. No enclosed building may be constructed on the Brownfields Property and no existing building, defined as those depicted on the plat component of the Notice of Brownfields Property referenced in paragraph 20 below, can be occupied until DEQ determines in writing that: i. the building is or would be protective of the building’s users, public health and the environment from risk of vapor intrusion based on site assessment data or a site- specific risk assessment approved in writing by DEQ; ii. the building is or would be sufficiently distant from the Brownfields Property’s groundwater and/or soil contamination based on assessment data approved in writing by DEQ that the building’s users, public health and the environment will be protected from risk from vapor intrusion related to said contamination; or iii. vapor intrusion mitigation measures are installed and/or implemented to the satisfaction of a professional engineer licensed in North Carolina, as evidenced by said engineer’s professional seal on a report that includes photographs and a description of the installation and performance of said measures. Any design specification for vapor intrusion mitigation measures shall be approved in writing by DEQ in advance of installation and/or implementation of said measures. The design specifications shall include methodology(ies) for demonstrating performance of said measures. h. By January 31 of each one-year anniversary of the effective date of this Agreement, and for as long as physical redevelopment of the Brownfields Property continues (except that the final deadline shall fall 90 days after the conclusion of physical redevelopment), the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ approval on environment-related activities since the last report, with a summary and drawings, that describes: i. actions taken on the Brownfields Property in accordance with the EMP 22037-18-051 / Clayton Spinning Mill 5 required by subparagraph 15.c above; ii. soil grading and cut and fill actions; iii. methodology(ies) employed for field screening, sampling and laboratory analysis of environmental media; iv. stockpiling, containerizing, decontaminating, treating, handling, laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected or confirmed to be contaminated with regulated substances; and v. removal of any contaminated soil, water or other contaminated materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all legally required manifests shall be included). i. Neither DEQ, nor any party conducting environmental assessment or remediation at the Brownfields Property at the direction of, or pursuant to a permit, order or agreement issued or entered into by DEQ, may be denied access to the Brownfields Property for purposes of conducting such assessment or remediation, which is to be conducted using reasonable efforts to minimize interference with authorized uses of the Brownfields Property. j. None of the contaminants known to be present in the environmental media at the Brownfields Property, as described in Exhibit 2 of this Agreement and as modified by DEQ in writing if additional contaminants in excess of applicable standards are discovered at the Brownfields Property, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except: i. in de minimis quantities for cleaning and other routine housekeeping and maintenance activities; ii. as fuel or other fluids customarily used in vehicles, landscaping equipment, and emergency generators; or iii. as constituents of products and materials customarily used and stored in high-density residential, office, restaurant, open space, recreation and parking environments and other DEQ-approved commercial uses, provided such products and materials are stored in original retail packaging and used and disposed of in accordance with applicable laws. k. The owner of any portion of the Brownfields Property where any existing, or subsequently installed, DEQ-approved monitoring well is damaged by the owner, its contractors, or its tenants shall be responsible for repair of any such wells to DEQ’s written satisfaction and within a time period acceptable to DEQ, unless compliance with this Land Use Restriction is waived in writing by DEQ in advance. l. Within 60 days, or in accordance with a schedule approved in writing in advance by the North Carolina Brownfields Program (NCBP), after the effective date of this Agreement or prior to land disturbance activities and after consultation with the NCBP, Prospective Developer shall abandon monitoring wells, injection wells, recovery wells, piezometers and other man-made points of groundwater access at the Brownfields Property, in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code, unless an alternate schedule is approved by DEQ. Within 30 days after doing so, the Prospective Developer shall provide DEQ a report, setting forth the procedures and results. 22037-18-051 / Clayton Spinning Mill 6 m. Any deed or other instrument conveying an interest in the Brownfields Property shall contain the following notice: “This property is subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Johnston County land records, Book ____, Page ____.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though financial figures and other confidential information related to the conveyance may be redacted to the extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records Law. The owner conveying an interest may use the following mechanisms to comply with the obligations of this subparagraph: i. If every lease and rider is identical in form, the owner conveying an interest may provide DEQ with copies of a form lease or rider evidencing compliance with this subparagraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notice and Submissions); or ii. The owner conveying an interest may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV. n. No use of the portion of the Brownfields Property located on the east side of the unnamed creek that crosses parcels 166918-30-7238 and 166918-40-3804, as said parcels are depicted on the Brownfields Plat, is allowed except for the purpose of a wildlife corridor, unless otherwise approved by the North Carolina Brownfields Program. o. During January of each year after the year in which the Notice referenced below in paragraph 20 is recorded, the owner of any part of the Brownfields Property as of January 1st of that year shall submit a notarized Land Use Restrictions Update (“LURU”) to DEQ, and to the chief public health and environmental officials of Johnston County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Johnston County Register of Deeds office and that the land use restrictions are being complied with. The submitted LURU shall state the following: i. the name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address of the owner submitting the LURU if said owner acquired any part of the Brownfields Property during the previous calendar year; ii. the transferee’s name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address, if said owner transferred any part of the Brownfields Property during the previous calendar year; iii. whether any vapor barrier and/or mitigation systems installed pursuant to subparagraph 15.g. above are performing as designed, and whether the uses of the ground floors of any buildings containing such vapor barrier and/or mitigation systems have changed, and, if so, how. p. A joint LURU may be submitted for multiple owners by a duly constituted board or association and shall include the name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address of the entity submitting the joint LURU as well as for each of the owners on whose behalf the joint LURU is submitted. 22037-18-051 / Clayton Spinning Mill 7 For purposes of the land use restrictions set forth above, the DEQ point of contact shall be as referenced in subparagraph 35.a. of Exhibit A hereto, at the address stated therein. ENFORCEMENT The above land use restrictions shall be enforceable without regard to lack of privity of estate or contract, lack of benefit to particular land, or lack of any property interest in particular land. The land use restrictions shall be enforced by any owner of the Brownfields Property. The land use restrictions may also be enforced by DEQ through the remedies provided in NCGS § 130A, Article 1, Part 2 or by means of a civil action; by any unit of local government having jurisdiction over any part of the Brownfields Property; and by any person eligible for liability protection under the Brownfields Property Reuse Act who will lose liability protection if the restrictions are violated. Any attempt to cancel any or all of this Notice without the approval of the Secretary of DEQ (or its successor in function), or his/her delegate, shall be subject to enforcement by DEQ to the full extent of the law. Failure by any party required or authorized to enforce any of the above restrictions shall in no event be deemed a waiver of the right to do so thereafter as to the same violation or as to one occurring prior or subsequent thereto. FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS When any portion of the Brownfields Property is sold, leased, conveyed or transferred, pursuant to NCGS § 130A-310.35(d) the deed or other instrument of transfer shall contain in the description section, in no smaller type than that used in the body of the deed or instrument, a statement that the Brownfields Property has been classified and, if appropriate, cleaned up as a brownfields property under the Brownfields Property Reuse Act. IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this _____ day of _______________, 201__. Spinning Mill Investments, LLC By: __________________________________________ Thomas F. Taft, Sr. Manager NORTH CAROLINA _______________ COUNTY I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: ________________________________. Date: ___________________ ___________________________________ Official Signature of Notary 22037-18-051 / Clayton Spinning Mill 8 ___________________________________ (Official Seal) Notary’s printed or typed name, Notary Public My commission expires: _____________________ ************************************ APPROVAL AND CERTIFICATION OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY The foregoing Notice of Brownfields Property is hereby approved and certified. North Carolina Department of Environmental Quality By: _________________________________________ ________________________ Michael E. Scott Date Director, Division of Waste Management 1 22037-18-051 / Clayton Spinning Mill EXHIBIT A NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: Spinning Mill Investments, LLC UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re: BROWNFIELDS PROPERTY REUSE ACT ) Clayton Spinning Mill OF 1997, NCGS § 130A-310.30, et seq. ) 300 Mill Street Brownfields Project # 22037-18-051 ) Clayton, Johnston County I. INTRODUCTION This Brownfields Agreement (“Agreement”) is entered into by the North Carolina Department of Environmental Quality (“DEQ”) and Spinning Mill Investments, LLC (collectively the "Parties") pursuant to the Brownfields Property Reuse Act of 1997, NCGS § 130A-310.30, et seq. (the “Act”) for the property located at 300 Mill Street, Clayton, North Carolina (the “Brownfields Property”). A map showing the location of the Brownfields Property that is the subject of this Agreement is attached hereto as Exhibit 1. The Prospective Developer is Spinning Mill Investments, LLC, a member-managed Limited Liability Company located at 2217 Stantonsburg Rd, Greenville, NC 27834. The managers of Spinning Mill Investments, LLC are Thomas F. Taft, Sr. (manager) and Thomas Taft, Jr. (member manger). The Prospective Developer wishes to redevelop the Brownfields Property as high-density residential, office, restaurant, open space, recreation, parking, and subject to DEQ’s prior written approval, other commercial uses. The Parties agree to undertake all actions required by the terms and conditions of this Agreement. The purpose of this Agreement is to settle and resolve, subject to reservations and 2 22037-18-051 / Clayton Spinning Mill limitations contained in Section VIII (Certification), Section IX (DEQ’s Covenant Not to Sue and Reservation of Rights) and Section X (Prospective Developer’s Covenant Not to Sue), the potential liability of Spinning Mill Investments, LLC for contaminants at the Brownfields Property. The Parties agree that Spinning Mill Investments, LLC’s entry into this Agreement, and the actions undertaken by Spinning Mill Investments, LLC in accordance with the Agreement, do not constitute an admission of any liability by Spinning Mill Investments, LLC for contaminants at the Brownfields Property. The resolution of this potential liability, in exchange for the benefit Spinning Mill Investments, LLC shall provide to DEQ, is in the public interest. II. DEFINITIONS Unless otherwise expressly provided herein, terms used in this Agreement which are defined in the Act or elsewhere in NCGS § 130A, Article 9 shall have the meaning assigned to them in those statutory provisions, including any amendments thereto. 1. “Brownfields Property” shall mean the property which is the subject of this Agreement, and which is depicted in Exhibit 1 to the Agreement. 2. "Prospective Developer" shall mean Spinning Mill Investments, LLC. III. STATEMENT OF FACTS 3. The Brownfields Property consists of six parcels totaling 31.5977 acres with the North Carolina Parcel Identification Numbers 06918-40-2748, 6918-30-8385, 6918-30-2104, 6918-30- 4740, 6918-30-5328, and 6806-39-4886. All six parcels were recombined on March 23, 2019 into three new parcels with parcel identification numbers 166918-30-7238, 166918-40-3804, and 3 22037-18-051 / Clayton Spinning Mill 166918-30-4740. 4. The Brownfields Property is bordered to the north by Central Street, Creekside Drive, single-family residences, wooded land, and a United States Post Office facility; to the east by single-family residences and wooded land; to the southeast and south by The Arbors apartment complex; to the west by Creekside Drive, a United States Post Office facility, East Front Street and wooded land; and to the south by East Front Street and wooded land. 5. Prospective Developer obtained or commissioned the following reports, referred to hereinafter as the “Environmental Reports,” regarding the Brownfields Property: Title Prepared by Date of Report Phase I Environmental Site Assessment Ed Aguirre & Associates, Inc. May 5, 2017 Phase I Environmental Site Assessment EBI Consulting March 2, 2018 Limited Site Investigation Terracon Consultants, Inc. April 27, 2018 Brownfields Assessment Report Terracon Consultants, Inc. January 24, 2019 6. For purposes of this Agreement, DEQ relies on the following representations by Prospective Developer as to use and ownership of the Brownfields Property: a. The construction of the existing mill building on the northwest portion of the Brownfields Property began in 1899 and the facility began operating as a cotton spinning mill in 1900 with associated office, warehouse, and storage buildings adjacent the mill. Between 1989 and 1909, a rail spur, an office building associated with the mill, and six single family residences were constructed. By 1945, seven single family residences were present. Names associated with the cotton mill include Clayton Cotton Mill, Whitley Cotton Mills, and Clayton Spinning Company, Inc. Operations at the mill ceased in 1976. The mill building and office building 4 22037-18-051 / Clayton Spinning Mill remain. b. By 1909, a lumber planing mill with associated saw mill, drying kilns, lumber shed, shavings-fueled boiler building, office building and miscellaneous other small buildings were present on the southwestern portion of the Brownfields Property. From the late 1940s through the early 1960s, development on the western and southwestern portions of the Brownfields Property occurred, which may have been residential and/or associated with the former operations of the lumber yard. Names associated with the planing mill are Clayton Manufacturing Company, John A. Vinson Planing Mill, J.A. Vinson Estate Mill Work Lumber, and Williams & McKeithan Lumber Company Planing Mill. The date the planing mill ceased operations is not known, but the but the majority of the original planing mill buildings were absent by 1961. No structures associated with the planing mill and no homes or buildings on the western or southwestern portion of the Brownfields Property remain. c. The existing cellular tower complex was constructed sometime after 2006. 7. Pertinent environmental information regarding the Brownfields Property and surrounding area includes the following: a. A 5,000-gallon heating oil underground storage tank (UST) and 1,000-gallon heating oil UST were located on-site in the vicinity of the smokestack on the southeastern side of the current mill structure. The USTs could not be located using ground penetration radar and therefore they are believed to have been removed at an unknown previous date, possibly in the early 1990s. According to a 2017 Phase I ESA, documentation was not available regarding the removal or closure of the USTs. DEQ does not list the site in the registered underground storage 5 22037-18-051 / Clayton Spinning Mill tanks database. b. A fuel storage tank was believed have been used at the planing mill facility. The tank could not be located using ground penetration radar and is believed to have been removed at an unknown previous date. DEQ does not list the site in the registered underground storage tanks database. 8. The most recent environmental sampling at the Brownfields Property reported in the Environmental Reports occurred on November 5, 2018. The tables set forth in Exhibit 2 to this Agreement present contaminants present at the Brownfields Property above applicable standards or screening levels for each media sampled. 9. For purposes of this Agreement DEQ relies on Prospective Developer’s representations that Prospective Developer's involvement with the Brownfields Property has been limited to obtaining or commissioning the Environmental Reports, preparing and submitting to DEQ a Brownfields Property Application (BPA) dated June 11, 2018, and the following: a. On March 10, 2017, the Prospective Developer contracted to purchase the Brownfields Property, and b. On June 6, 2018, the Prospective Developer purchased parcels 06918-40-2748, 6918-30-8385, 6918-30-2104, 6918-30-4740, 6918-30-5328, and on September 7, 2018 purchased parcel number 6806-39-4886, all of which were recombined on March 23, 2019 into three new parcels with parcel identification numbers 166918-30-7238, 166918-40-3804, and 166918-30-4740. 6 22037-18-051 / Clayton Spinning Mill 10. Prospective Developer has provided DEQ with information, or sworn certifications regarding that information on which DEQ relies for purposes of this Agreement, sufficient to demonstrate that: a. Prospective Developer and any parent, subsidiary, or other affiliate has substantially complied with federal and state laws, regulations and rules for protection of the environment, and with the other agreements and requirements cited at NCGS § 130A- 310.32(a)(1); b. As a result of the implementation of this Agreement, the Brownfields Property will be suitable for the uses specified in the Agreement while fully protecting public health and the environment; c. Prospective Developer's reuse of the Brownfields Property will produce a public benefit commensurate with the liability protection provided Prospective Developer hereunder; d. Prospective Developer has or can obtain the financial, managerial and technical means to fully implement this Agreement and assure the safe use of the Brownfields Property; and e. Prospective Developer has complied with all applicable procedural requirements. 11. The Parties agree that a $30,000 “Redevelopment Now” fee Prospective Developer has paid suffices as the $2,000 fee to seek a brownfields agreement required by NCGS § 130A- 310.39(a)(1), and, within the meaning of NCGS § 130A-310.39(a)(2), the full cost to DEQ and 7 22037-18-051 / Clayton Spinning Mill the North Carolina Department of Justice of all activities related to this Agreement, unless a change is sought to a Brownfields document after it is in effect, in which case there shall be an additional fee of at least $1,000. IV. BENEFIT TO COMMUNITY 12. The redevelopment of the Brownfields Property proposed herein would provide the following public benefits: a. a return to productive use of the Brownfields Property; b. a spur to additional community investment and redevelopment, through improved neighborhood appearance and otherwise; c. the creation of construction jobs; d. an increase in tax revenue for affected jurisdictions; e. additional high-density residential, office, restaurant, open space, recreation, parking, and commercial space for the area; f. “smart growth” through use of land in an already developed area, which avoids development of land beyond the urban fringe (“greenfields”). V. WORK TO BE PERFORMED 13. In redeveloping the Brownfields Property, Prospective Developer shall make reasonable efforts to evaluate applying sustainability principles at the Brownfields Property, using the nine (9) areas incorporated into the U.S. Green Building Council Leadership in Energy and Environmental Design certification program (Sustainable Sites, Water Efficiency, Energy & Atmosphere, Materials & Resources, Indoor Environmental Quality, Locations & Linkages, 8 22037-18-051 / Clayton Spinning Mill Awareness & Education, Innovation in Design and Regional Priority), or a similar program. 14. Based on the information in the Environmental Reports, and subject to imposition of and compliance with the land use restrictions set forth below, and subject to Section IX of this Agreement (DEQ’s Covenant Not to Sue and Reservation of Rights), DEQ is not requiring Prospective Developer to perform any active remediation at the Brownfields Property other than remediation that may be required pursuant to a DEQ-approved Environmental Management Plan (EMP) required by subparagraph 15.c. below, of this Section. However, prior to construction of any new buildings on the Brownfields Property, Prospective Developer shall submit a work plan to DEQ for prior written approval and shall conduct soil sampling in accordance with that work plan to characterize any potential health impacts related to soils that may need to be disturbed or exposed. 15. By way of the Notice of Brownfields Property referenced below in paragraph 20, Prospective Developer shall impose the following land use restrictions under the Act, running with the land, to make the Brownfields Property suitable for the uses specified in this Agreement while fully protecting public health and the environment instead of remediation to unrestricted use standards. All references to DEQ shall be understood to include any successor in function. a. No use may be made of the Brownfields Property other than high-density residential, office, restaurant, open space, recreation, parking, and subject to DEQ’s prior written approval, other commercial uses. For purposes of this restriction, the following definitions apply: i. “High-density Residential” is defined as permanent dwellings where 9 22037-18-051 / Clayton Spinning Mill residential units are attached to each other with common walls, such as condominia, apartments, group homes, dormitories or boarding houses, and any property outside the dwelling structures is usable by all residents and not privately owned as part of a particular unit, and may include related amenities, such as pools, clubhouses, courtyards, common areas, recreation areas and parking garages ii. “Office” is defined as the provision of business or professional services. iii. “Open space” is defined as land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways, or detention facilities for storm water. iv. “Recreation” is defined as indoor and outdoor exercise-related, physically focused, or leisure-related activities, whether active or passive, and the facilities for same, including, but not limited to, studios, swimming pools, sports-related courts and fields, open space, greenways, parks, playgrounds, walking paths, and picnic and public gathering areas. v. “Restaurant” is defined as a commercial business establishment that prepares and serves food and beverages to patrons. vi. “Parking” is defined as the temporary accommodation of motor vehicles in an area designed for same. vii. “Commercial” is defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee. For the purposes of this Agreement, this excludes operations which use petroleum hydrocarbons or chlorinated solvents. 10 22037-18-051 / Clayton Spinning Mill b. The Brownfields Property may not be used for child care centers, adult care centers or schools without the prior written approval of DEQ. c. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an Environmental Management Plan (“EMP”) approved in writing by DEQ in advance (and revised to DEQ’s written satisfaction prior to each subsequent redevelopment phase) that is consistent with all the other land use restrictions and describes redevelopment activities at the Brownfields Property, the timing of redevelopment phases, and addresses health, safety and environmental issues that may arise from use of the Brownfields Property during construction or redevelopment in any other form, including without limitation: i. soil and water management issues, including without limitation those resulting from contamination identified in the Environmental Reports; ii. issues related to potential sources of contamination referenced in Exhibit 2 to this Agreement; iii. contingency plans for addressing, including without limitation the testing of soil and groundwater, newly discovered potential sources of environmental contamination (e.g., USTs, tanks, drums, septic drain fields, oil-water separators, soil contamination); and iv. plans for the proper characterization of, and as necessary, disposal of contaminated soils excavated during redevelopment. d. Groundwater at the Brownfields Property may not be used for any purpose 11 22037-18-051 / Clayton Spinning Mill without the prior written approval of DEQ. e. No activity that disturbs soil on the Brownfields Property may occur unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public health and the environment, except: i. in connection with landscape planting to depths not exceeding 24 inches; ii. mowing and pruning of above-ground vegetation; iii. for repair of underground infrastructure, provided that DEQ shall be given written notice at least seven days in advance of a scheduled repair (if only by email) of any such repair, or in emergency circumstances no later than the next business day, and that any related assessment and remedial measures required by DEQ shall be taken and; iv. in connection to work conducted in accordance with the EMP as outlined above in subparagraph 15.c. f. Soil may not be removed from, or brought onto, the Brownfields Property without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless conducted in accordance with an approved EMP as outlined above in subparagraph 15.c. g. No enclosed building may be constructed on the Brownfields Property and no existing building, defined as those depicted on the plat component of the Notice of Brownfields Property referenced in paragraph 20 below, can be occupied until DEQ determines in writing that: i. the building is or would be protective of the building’s users, public 12 22037-18-051 / Clayton Spinning Mill health and the environment from risk of vapor intrusion based on site assessment data or a site- specific risk assessment approved in writing by DEQ; ii. the building is or would be sufficiently distant from the Brownfields Property’s groundwater and/or soil contamination based on assessment data approved in writing by DEQ that the building’s users, public health and the environment will be protected from risk from vapor intrusion related to said contamination; iii. vapor intrusion mitigation measures are installed and/or implemented to the satisfaction of a professional engineer licensed in North Carolina, as evidenced by said engineer’s professional seal on a report that includes photographs and a description of the installation and performance of said measures. Any design specification for vapor intrusion mitigation measures shall be approved in writing by DEQ in advance of installation and/or implementation of said measures. The design specifications shall include methodology(ies) for demonstrating performance of said measures. h. By January 31 of each one-year anniversary of the effective date of this Agreement, and for as long as physical redevelopment of the Brownfields Property continues (except that the final deadline shall fall 90 days after the conclusion of physical redevelopment), the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ approval on environment-related activities since the last report, with a summary and drawings, that describes: i. actions taken on the Brownfields Property in accordance with the EMP required by subparagraph 15.c above; 13 22037-18-051 / Clayton Spinning Mill ii. soil grading and cut and fill actions; iii. methodology(ies) employed for field screening, sampling and laboratory analysis of environmental media; iv. stockpiling, containerizing, decontaminating, treating, handling, laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected or confirmed to be contaminated with regulated substances; and v. removal of any contaminated soil, water or other contaminated materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all legally required manifests shall be included). i. Neither DEQ, nor any party conducting environmental assessment or remediation at the Brownfields Property at the direction of, or pursuant to a permit, order or agreement issued or entered into by DEQ, may be denied access to the Brownfields Property for purposes of conducting such assessment or remediation, which is to be conducted using reasonable efforts to minimize interference with authorized uses of the Brownfields Property. j. None of the contaminants known to be present in the environmental media at the Brownfields Property, as described in Exhibit 2 of this Agreement and as modified by DEQ in writing if additional contaminants in excess of applicable standards are discovered at the Brownfields Property, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except: i. in de minimis quantities for cleaning and other routine housekeeping and maintenance activities; 14 22037-18-051 / Clayton Spinning Mill ii. as fuel or other fluids customarily used in vehicles, landscaping equipment, and emergency generators; or iii. as constituents of products and materials customarily used and stored in high-density residential, office, restaurant, open space, recreation and parking environments and other DEQ-approved commercial uses, provided such products and materials are stored in original retail packaging and used and disposed of in accordance with applicable laws. k. The owner of any portion of the Brownfields Property where any existing, or subsequently installed, DEQ-approved monitoring well is damaged by the owner, its contractors, or its tenants shall be responsible for repair of any such wells to DEQ’s written satisfaction and within a time period acceptable to DEQ, unless compliance with this Land Use Restriction is waived in writing by DEQ in advance. l. Within 60 days, or in accordance with a schedule approved in writing in advance by the North Carolina Brownfields Program (NCBP), after the effective date of this Agreement or prior to land disturbance activities and after consultation with the NCBP, Prospective Developer shall abandon monitoring wells, injection wells, recovery wells, piezometers and other man-made points of groundwater access at the Brownfields Property, in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code, unless an alternate schedule is approved by DEQ. Within 30 days after doing so, the Prospective Developer shall provide DEQ a report, setting forth the procedures and results. m. Any deed or other instrument conveying an interest in the Brownfields Property shall contain the following notice: “This property is subject to the Brownfields 15 22037-18-051 / Clayton Spinning Mill Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Johnston County land records, Book ____, Page ____.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though financial figures and other confidential information related to the conveyance may be redacted to the extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records Law. The owner conveying an interest may use the following mechanisms to comply with the obligations of this subparagraph: i. If every lease and rider is identical in form, the owner conveying an interest may provide DEQ with copies of a form lease or rider evidencing compliance with this subparagraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notice and Submissions); or ii. The owner conveying an interest may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV. n. No use of the portion of the Brownfields Property located on the east side of the unnamed creek that crosses parcels 166918-30-7238 and 166918-40-3804, as said parcels are depicted on the Brownfields Plat, is allowed except for the purpose of a wildlife corridor, unless otherwise approved by the North Carolina Brownfields Program. o. During January of each year after the year in which the Notice referenced below in paragraph 20 is recorded, the owner of any part of the Brownfields Property as of January 1st of that year shall submit a notarized Land Use Restrictions Update (“LURU”) to DEQ, and to the chief public health and environmental officials of Johnston County, certifying 16 22037-18-051 / Clayton Spinning Mill that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Johnston County Register of Deeds office and that the land use restrictions are being complied with. The submitted LURU shall state the following: i. the name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address of the owner submitting the LURU if said owner acquired any part of the Brownfields Property during the previous calendar year; ii. the transferee’s name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address, if said owner transferred any part of the Brownfields Property during the previous calendar year; iii. whether any vapor barrier and/or mitigation systems installed pursuant to subparagraph 15.g. above are performing as designed, and whether the uses of the ground floors of any buildings containing such vapor barrier and/or mitigation systems have changed, and, if so, how. p. A joint LURU may be submitted for multiple owners by a duly constituted board or association and shall include the name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address of the entity submitting the joint LURU as well as for each of the owners on whose behalf the joint LURU is submitted. 16. The desired result of the above-referenced land use restrictions is to make the Brownfields Property suitable for the uses specified in the Agreement while fully protecting public health and the environment. 17. The guidelines, including parameters, principles and policies within which the 17 22037-18-051 / Clayton Spinning Mill desired results are to be accomplished are, as to field procedures and laboratory testing, the Guidelines of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section and the Division of Waste Management Vapor Intrusion Guidance, as embodied in their most current version. 18. The consequence of achieving the desired results will be that the Brownfields Property will be suitable for the uses specified in the Agreement while fully protecting public health and the environment. The consequence of not achieving the desired results will be that modifications to land use restrictions and/or remediation in some form may be necessary to fully protect public health and/or the environment. VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST 19. In addition to providing access to the Brownfields Property pursuant to subparagraph 15.i. above, Prospective Developer shall provide DEQ, its authorized officers, employees, representatives, and all other persons performing response actions under DEQ oversight, access at all reasonable times to other property controlled by Prospective Developer in connection with the performance or oversight of any response actions at the Brownfields Property under applicable law. Such access is to occur after prior notice and using reasonable efforts to minimize interference with authorized uses of such other property except in response to emergencies and/or imminent threats to public health and the environment. While Prospective Developer owns the Brownfields Property, DEQ shall provide reasonable notice to Prospective Developer of the timing of any response actions to be undertaken by or under the oversight of DEQ at the Brownfields Property. Except as may be set forth in the Agreement, DEQ retains all of its authorities and rights, including enforcement authorities related thereto, under the Act and 18 22037-18-051 / Clayton Spinning Mill any other applicable statute or regulation, including any amendments thereto. 20. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields Property for the Brownfields Property containing, inter alia, the land use restrictions set forth in Section V (Work to Be Performed) of this Agreement and a survey plat of the Brownfields Property. Pursuant to NCGS § 130A-310.35(b), within 15 days of the effective date of this Agreement, Prospective Developer shall file the Notice of Brownfields Property in the Johnston County, North Carolina, Register of Deeds’ Office. Within three (3) days thereafter, Prospective Developer shall furnish DEQ a copy of the documentary component of the Notice containing a certification by the register of deeds as to the Book and Page numbers where both the documentary and plat components of the Notice are recorded, and a copy of the plat with notations indicating its recordation. 21. This Agreement shall be attached as Exhibit A to the Notice of Brownfields Property. Subsequent to recordation of said Notice, any deed or other instrument conveying an interest in the Brownfields Property shall contain the following notice: “This property is subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Johnston County land records, Book ____, Page ____.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though financial figures and other confidential information related to the conveyance may be redacted to the extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records Law. Prospective Developer may use the following mechanisms to comply with the obligations of this paragraph: (i) If every lease and rider is identical in form, 19 22037-18-051 / Clayton Spinning Mill Prospective Developer may provide DEQ with copies of a form lease or rider evidencing compliance with this paragraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notices and Submissions); or (ii) Prospective Developer may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV. 22. The Prospective Developer shall ensure that a copy of this Agreement is provided to any current lessee or sublessee on the Brownfields Property within seven days of the effective date of this Agreement. VII. DUE CARE/COOPERATION 23. The Prospective Developer shall exercise due care at the Brownfields Property with respect to the manner in which regulated substances are handled at the Brownfields Property and shall comply with all applicable local, State, and federal laws and regulations. The Prospective Developer agrees to cooperate fully with any assessment or remediation of the Brownfields Property by DEQ and further agrees not to interfere with any such assessment or remediation. In the event the Prospective Developer becomes aware of any action or occurrence which causes or threatens a release of contaminants at or from the Brownfields Property, the Prospective Developer shall immediately take all appropriate action to prevent, abate, or minimize such release or threat of release, shall comply with any applicable notification requirements under NCGS § 130A-310.1 and 143-215.85, Section 103 of CERCLA, 42 USC § 9603, and/or any other law, and shall immediately notify the DEQ Official referenced in paragraph 35.a. below of any such required notification. 20 22037-18-051 / Clayton Spinning Mill VIII. CERTIFICATION 24. By entering into this Agreement, the Prospective Developer certifies that, without DEQ approval, it will make no use of the Brownfields Property other than that committed to in this Agreement. That use being high-density residential, office, restaurant, open space, recreation, parking, and subject to DEQ’s prior written approval, other commercial uses. Prospective Developer also certifies that to the best of its knowledge and belief it has fully and accurately disclosed to DEQ all information known to Prospective Developer and all information in the possession or control of its officers, directors, employees, contractors and agents which relates in any way to any past use of regulated substances or known contaminants at the Brownfields Property and to its qualification for this Agreement, including the requirement that it not have caused or contributed to the contamination at the Brownfields Property. IX. DEQ’S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS 25. Unless any of the following apply, Prospective Developer shall not be liable to DEQ, and DEQ covenants not to sue Prospective Developer, for remediation of the Brownfields Property except as specified in this Agreement: a. The Prospective Developer fails to comply with this Agreement. b. The activities conducted on the Brownfields Property by or under the control or direction of the Prospective Developer increase the risk of harm to public health or the environment, in which case Prospective Developer shall be liable for remediation of the areas of the Brownfields Property, remediation of which is required by this Agreement, to the extent necessary to eliminate such risk of harm to public health or the environment. 21 22037-18-051 / Clayton Spinning Mill c. A land use restriction set out in the Notice of Brownfields Property required under NCGS § 130A-310.35 is violated while the Prospective Developer owns the Brownfields Property, in which case the Prospective Developer shall be responsible for remediation of the Brownfields Property to unrestricted use standards. d. The Prospective Developer knowingly or recklessly provided false information that formed a basis for this Agreement or knowingly or recklessly offers false information to demonstrate compliance with this Agreement or fails to disclose relevant information about contamination at the Brownfields Property. e. New information indicates the existence of previously unreported contaminants or an area of previously unreported contamination on or associated with the Brownfields Property that has not been remediated to unrestricted use standards, unless this Agreement is amended to include any previously unreported contaminants and any additional areas of contamination. If this Agreement sets maximum concentrations for contaminants, and new information indicates the existence of previously unreported areas of these contaminants, further remediation shall be required only if the areas of previously unreported contaminants raise the risk of the contamination to public health or the environment to a level less protective of public health and the environment than that required by this Agreement. f. The level of risk to public health or the environment from contaminants is unacceptable at or in the vicinity of the Brownfields Property due to changes in exposure conditions, including (i) a change in land use that increases the probability of exposure to contaminants at or in the vicinity of the Brownfields Property or (ii) the failure of remediation to 22 22037-18-051 / Clayton Spinning Mill mitigate risks to the extent required to make the Brownfields Property fully protective of public health and the environment as planned in this Agreement. g. DEQ obtains new information about a contaminant associated with the Brownfields Property or exposures at or around the Brownfields Property that raises the risk to public health or the environment associated with the Brownfields Property beyond an acceptable range and in a manner or to a degree not anticipated in this Agreement. h. The Prospective Developer fails to file a timely and proper Notice of Brownfields Property under NCGS § 130A-310.35. 26. Except as may be provided herein, DEQ reserves its rights against Prospective Developer as to liabilities beyond the scope of the Act. 27. This Agreement does not waive any applicable requirement to obtain a permit, license or certification, or to comply with any and all other applicable law, including the North Carolina Environmental Policy Act, NCGS § 113A-1, et seq. 28. Consistent with NCGS § 130A-310.33, the liability protections provided herein, and any statutory limitations in paragraphs 25 through 27 above, apply to all of the persons listed in NCGS § 130A-310.33, including future owners of the Brownfields Property, to the same extent as Prospective Developer, so long as these persons are not otherwise potentially responsible parties or parents, subsidiaries, or affiliates of potentially responsible parties. X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE 29. In consideration of DEQ’s Covenant Not To Sue in Section IX of this Agreement and in recognition of the absolute State immunity provided in NCGS § 130A-310.37(b), the 23 22037-18-051 / Clayton Spinning Mill Prospective Developer hereby covenants not to sue and not to assert any claims or causes of action against DEQ, its authorized officers, employees, or representatives with respect to any action implementing the Act, including negotiating, entering, monitoring or enforcing this Agreement or the above-referenced Notice of Brownfields Property. XI. PARTIES BOUND 30. This Agreement shall apply to and be binding upon DEQ, and on the Prospective Developer, its officers, directors, employees, and agents. Each Party’s signatory to this Agreement represents that she or he is fully authorized to enter into the terms and conditions of this Agreement and to legally bind the Party for whom she or he signs. XII. DISCLAIMER 31. Prospective Developer and DEQ agree that this Agreement meets the requirements of the Act, including but not limited to the requirements set forth in NCGS § 130A-310.32(a)(2). However, this Agreement in no way constitutes a finding by DEQ as to the risks to public health and the environment which may be posed by regulated substances at the Brownfields Property, a representation by DEQ that the Brownfields Property is fit for any particular purpose, nor a waiver of Prospective Developer’s duty to seek applicable permits or of the provisions of NCGS § 130A-310.37. 32. Except for the land use restrictions set forth in paragraph 15 above and NCGS § 130A-310.33(a)(1)-(5)'s provision of the Act's liability protection to certain persons to the same extent as to a prospective developer, no rights, benefits or obligations conferred or imposed upon Prospective Developer under this Agreement are conferred or imposed upon any other person. 24 22037-18-051 / Clayton Spinning Mill XIII. DOCUMENT RETENTION 33. The Prospective Developer agrees to retain and make available to DEQ all business and operating records, contracts, site studies and investigations, remediation reports, and documents generated by and/or in the control of the Prospective Developer, its affiliates or subsidiaries relating to storage, generation, use, disposal and management of regulated substances at the Brownfields Property, including without limitation all Material Safety Data Sheets or Safety Data Sheets, for six (6) years following the effective date of this Agreement, unless otherwise agreed to in writing by the Parties. Said records may be retained electronically such that they can be retrieved and submitted to DEQ upon request. At the end of six (6) years, the Prospective Developer shall notify DEQ of the location of such documents and shall provide DEQ with an opportunity to copy any documents at the expense of DEQ. By entering into this Agreement, Prospective Developer waives no rights of confidentiality or privilege provided by the North Carolina Public Records Act or otherwise and, at the time DEQ requests to copy or inspect said documents, Prospective Developer shall provide DEQ with a log of documents withheld from DEQ, including a specific description of the document(s) and the alleged legal basis upon which they are being withheld. To the extent DEQ retains any copies of such documents, Prospective Developer retains all rights it then may have to seek protection from disclosure of such documents as confidential business information. XIV. PAYMENT OF ENFORCEMENT COSTS 34. If the Prospective Developer fails to comply with the terms of this Agreement, including, but not limited to, the provisions of Section V (Work to be Performed), it shall be 25 22037-18-051 / Clayton Spinning Mill liable for all litigation and other enforcement costs incurred by DEQ to enforce this Agreement or otherwise obtain compliance. XV. NOTICES AND SUBMISSIONS 35. Unless otherwise required by DEQ or a Party notifies the other Party in writing of a change in contact information, all notices and submissions pursuant to this Agreement shall be sent by prepaid first class U.S. mail, as follows: a. for DEQ: Brownfields Property Management Unit (or successor in function) N.C. Division of Waste Management Brownfields Program Mail Service Center 1646 Raleigh, NC 27699-1646 b. for Prospective Developer: Thomas F. Taft, Sr. (or successor in function) Spinning Mill Investments, LLC 2217 Stantonsburg Rd. Greenville, NC 27834 Notices and submissions sent by prepaid first class U.S. mail shall be effective on the third day following postmarking. Notices and submissions sent by hand or by other means affording written evidence of date of receipt shall be effective on such date. XVI. EFFECTIVE DATE 36. This Agreement shall become effective on the date the Prospective Developer signs it, after receiving the signed, conditionally approved Agreement from DEQ. DEQ’s approval of this Agreement is conditioned upon the complete and timely execution and filing of this 26 22037-18-051 / Clayton Spinning Mill Agreement in the manner set forth herein. Prospective Developer shall expeditiously sign the Agreement in order to effect the recordation of the full Notice of Brownfields Property within the statutory deadline set forth in N.C.G.S. § 130A-310.35(b). If the Agreement is not signed by Prospective Developer within 45 days after such receipt, DEQ has the right to revoke its approval and certification of this Agreement, and invalidate its signature on this Agreement. XVII. TERMINATION OF CERTAIN PROVISIONS 37. If any Party believes that any or all of the obligations under Section VI (Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the requirements of the Agreement, that Party may request in writing that the other Party agree to terminate the provision(s) establishing such obligations; provided, however, that the provision(s) in question shall continue in force unless and until the Party requesting such termination receives written agreement from the other Party to terminate such provision(s). XVIII. CONTRIBUTION PROTECTION 38. With regard to claims for contribution against Prospective Developer in relation to the subject matter of this Agreement, Prospective Developer is entitled to protection from such claims to the extent provided by NCGS § 130A-310.37(a)(5)-(6). The subject matter of this Agreement is all remediation taken or to be taken and response costs incurred or to be incurred by DEQ or any other person in relation to the Brownfields Property. 39. The Prospective Developer agrees that, with respect to any suit or claim for contribution brought by it in relation to the subject matter of this Agreement, it will notify DEQ in writing no later than 60 days prior to the initiation of such suit or claim. 27 22037-18-051 / Clayton Spinning Mill 40. The Prospective Developer also agrees that, with respect to any suit or claim for contribution brought against it in relation to the subject matter of this Agreement, it will notify DEQ in writing within 10 days of receiving said suit or claim. XIX. PUBLIC COMMENT 41. This Agreement shall be subject to a public comment period of at least 30 days starting the day after the last of the following public notice tasks occurs: publication of the approved summary of the Notice of Intent to Redevelop a Brownfields Property required by NCGS § 130A-310.34 in a newspaper of general circulation serving the area in which the Brownfields Property is located; conspicuous posting of a copy of said summary at the Brownfields Property; and mailing or delivery of a copy of the summary to each owner of property contiguous to the Brownfields Property. After expiration of that period, or following a public meeting if DEQ holds one pursuant to NCGS § 130A-310.34(c), DEQ may modify or withdraw its consent to this Agreement if comments received disclose facts or considerations which indicate that this Agreement is inappropriate, improper or inadequate. IT IS SO AGREED: NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY By: ____________________________________________________________________________ Michael E. Scott Date Director, Division of Waste Management IT IS SO AGREED: SPINNING MILL INVESTMENTS, LLC By: ____________________________________________________________________________ 28 22037-18-051 / Clayton Spinning Mill Thomas F. Taft, Sr. Date Manager Copyright:© 2013 National Geographic Society, i-cubed Site ± USGS TOPOGRAPHIC MAPCLAYTON, NC QUADRANGLE (2002) 0 2,000 4,000 6,000 8,000 10,0001,000 FeetCONTOUR INTERVAL 10 FEET EXHIBIT NO. File Path: Date: PM: Drawn By: Checked By: Approved By: Project No. Scale: 1 70187183JES DWH JES MBD 2401 Brentwood Drive, Suite 107 Raleigh, NC 27604Phone: (919) 873-2211 Fax: (919) 873-9555 1:24,000 4/6/2018 Topographic Vicinity Map Former Clayton Spinning Mill300 Mill StreetClayton, North Carolina 22037-18-051 / Clayton Spinning Mill 1 Exhibit 2 The most recent environmental sampling at the Property reported in the Environmental Reports occurred on November 1, 2018. The following tables set forth, for contaminants present at the Property above unrestricted use standards or screening levels, the concentration found at each sample location, and the applicable standard or screening level. Screening levels and groundwater, indoor air, and soil vapor, standards are shown for reference only and are not set forth as cleanup levels for purposes of this Agreement. GROUNDWATER Groundwater contaminants in micrograms per liter (the equivalent of parts per billion), the standards for which are contained in Title 15A of the North Carolina Administrative Code, Subchapter 2L (2L), Rule .0202, (April 1, 2013 version): Groundwater Contaminant Sample Location Date of Sampling Concentration Exceeding Standard (µg/L) Standard (µg/L) Aluminum TW-01 04/04/2018 310 NE TW-02 6,900 TW-03 690 TW-04 370 Calcium TW-01 04/04/2018 3,100 NE TW-02 6,100 TW-03 67,000 TW-04 9,000 Cobalt TW-01 04/04/2018 27 J 1* Iron TW-01 04/04/2018 950 300 TW-02 7,100 TW-03 1,000 Magnesium TW-01 04/04/2018 3,300 NE TW-02 2,500 TW-03 8,500 TW-04 1,500 Manganese TW-01 04/04/2018 600 50 TW-02 160 TW-03 740 22037-18-051 / Clayton Spinning Mill 2 Potassium TW-01 04/04/2018 2,000 NE TW-02 2,000 TW-03 5,700 TW-04 2,100 Sodium TW-01 04/04/2018 4,100 NE TW-02 1,900 J TW-03 3,200 TW-04 4,100 Vanadium TW-02 04/04/2018 24 0.31 * Value represents an Interim Maximum Allowable Concentration. NE - No established standard J - Estimated value SOIL GAS Soil gas contaminants in micrograms per cubic meter, the screening levels for which are derived from Residential Vapor Intrusion Screening Levels of the Division of Waste Management (February 2018 version): Soil Gas Contaminant Sample Location Date of Sampling Concentration Exceeding Screening Level (µg/m3) Residential Screening Limit1 (µg/m3) Benzene SV-01 10/31/2018 150 120 1,3 Butadiene SV-01 10/31/2018 240 14 SV-04 11/01/2018 80 SV-06 10/31/2018 250 SV-07 11/01/2018 51 Ethylbenzene SV-04 11/01/2018 440 370 m&p xylene SV-04 11/01/2018 1,300 700 SV-05 730 1Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels displayed for carcinogens are for a 1.0E-5 lifetime incremental cancer risk. 22037-18-051 / Clayton Spinning Mill 3 INDOOR AIR (CRAWL SPACE) Crawlspace air contaminants in micrograms per cubic meter, the screening limits for which are derived from Residential Vapor Intrusion Screening Levels of the Division of Waste Management (February 2018 version): Indoor Air Contaminant Sample Location Date of Sampling Concentration Exceeding Screening Level (µg/m3) Residential Screening Level1 (µg/m3) Benzene CS-01 04/05/2018 0.481 0.36 CS-03 1.02 Carbon Tetrachloride CS-01 04/05/2018 0.513 0.47 CS-03 0.525 CS-04 0.509 CS-05 0.521 Chloroform CS-02 04/05/2018 0.538 0.12 Ethylbenzene CS-03 04/05/2018 1.15 1.1 1Screening limits displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels displayed for carcinogens are for a 1.0E-6 lifetime incremental cancer risk. Exhibit C – Legal Description BEGINNING AT AN EXISTING IRON PIPE LOCATED ON THE SOUTHERN RIGHT-OF-WAY LINE OF CENTRAL STREET AND BEING THE NORTHWESTERN PROPERTY CORNER OF LOT 1 AS RECORDED IN PLAT BOOK 48, PAGE 300, JOHNSTON COUNTY REGISTRY AND HAVING NC GRID (NAD '83/2011) COORDINATES N: 690879.2157 FEET E: 2163358.2712 FEET; THENCE LEAVING SAID RIGHT-OF-WAY ALONG AND WITH SAID WESTERN PROPERTY LINE THENCE SOUTH 21°45'04" EAST A DISTANCE OF 92.94 FEET TO AN EXISTING IRON PIPE; THENCE NORTH 68°14'46" EAST A DISTANCE OF 143.70 FEET TO AN EXISTING IRON PIPE LOCATED ON THE WESTERN RIGHT-OF- WAY LINE OF E. RIDGE CIRCLE; THENCE ALONG AND WITH SAID RIGHT-OF-WAY SOUTH 20°57'52" EAST A DISTANCE OF 211.34 FEET TO A NEWLY SET IRON PIPE LOCATED AT THE INTERSECTION OF SAID WESTERN RIGHT-OF-WAY AND THE NORTHERN RIGHT-OF-WAY LINE OF MILL STREET; THENCE CROSSING SAID RIGHT-OF-WAY ALONG A TIE LINE SOUTH 80°22'41" EAST A DISTANCE OF 58.08 FEET TO A NEWLY SET IRON PIPE LOCATED AT THE INTERSECTION OF THE EASTERN RIGHT-OF-WAY LINE OF E. RIDGE CIRCLE AND SOUTHERN RIGHT-OF-WAY LINE OF MILL STREET; THENCE ALONG AND WITH SAID EASTERN RIGHT-OF-WAY NORTH 20°57'52" WEST A DISTANCE OF 166.92 FEET TO A NEWLY SET IRON PIPE, THE SOUTHWESTERN PROPERTY CORNER OF LANDS NOW OR FORMERLY OWNED BY SCA VENTURES AS RECORDED IN DEED BOOK 3555, PAGE 530, JOHNSTON COUNTY REGISTRY; THENCE LEAVING SAID RIGHT- OF-WAY ALONG AND WITH SAID SOUTHERN PROPERTY LINE NORTH 68°19'49" EAST A DISTANCE OF 102.98 FEET TO A NEWLY SET IRON PIPE; THENCE NORTH 21°40'11" WEST A DISTANCE OF 74.86 FEET TO A NEWLY SET IRON PIPE; THENCE NORTH 68°37'03" EAST A DISTANCE OF 44.12 FEET TO AN EXISTING IRON PIPE, THE SOUTHWESTERN PROPERTY CORNER OF LOT 5 AS RECORDED IN PLAT BOOK 48, PAGE 300, JOHNSTON COUNTY REGISTRY; THENCE ALONG AND WITH SAID SOUTHERN PROPERTY LINE NORTH 68°11'31" EAST A DISTANCE OF 75.07 FEET TO AN EXISTING IRON PIPE; THENCE NORTH 21°55'37" WEST A DISTANCE OF 93.36 FEET TO A NEWLY SET IRON PIPE LOCATED ON SAID SOUTHERN RIGHT-OF-WAY LINE OF CENTRAL STREET; THENCE ALONG AND WITH SAID RIGHT-OF-WAY NORTH 69°14'28" EAST A DISTANCE OF 25.88 FEET TO AN EXISTING IRON PIPE, THE SOUTHWESTERN PROPERTY CORNER OF LANDS NOW OR FORMERLY OWNED BY JOY R. ROBERSON AS RECORDED IN DEED BOOK 2776, PAGE 782, JOHNSTON COUNTY REGISTRY; THENCE ALONG AND WITH SAID SOUTHERN PROPERTY LINE NORTH 68°14'24"E EAST A DISTANCE OF 200.00 FEET TO A NEWLY SET IRON PIPE; THENCE SOUTH 21°43'13" EAST A DISTANCE OF 113.35 FEET TO A POINT; THENCE NORTH 86°53'49" EAST A DISTANCE OF 185.32 FEET TO A NEWLY SET IRON PIPE; THENCE NORTH 21°50'04" WEST A DISTANCE OF 202.63 FEET TO AN EXISTING IRON PIPE LOCATED ON THE SOUTHERN PROPERTY LINE OF LANDS NOW OR FORMERLY OWNED BY JOY R. ROBERSON AS RECORDED IN DEED BOOK 2776, PAGE 782, JOHNSTON COUNTY REGISTRY; THENCE ALONG AND WITH SAID PROPERTY LINE NORTH 68°11'26" EAST A DISTANCE OF 373.63 FEET TO AN EXISTING IRON PIPE; THENCE NORTH 68°27'14" EAST A DISTANCE OF 49.65 FEET TO AN EXISTING IRON PIPE LOCATED ON THE WESTERN PROPERTY LINE OF WALDEN HOMEOWNERS ASSOCIATION INC AS RECORDED IN DEED BOOK 1086, PAGE 66, JOHNSTON COUNTY REGISTRY; THENCE ALONG AND WITH SAID WESTERN PROPERTY LINE SOUTH 01°02'44" WEST A DISTANCE OF 593.76 FEET TO AN EXISTING IRON PIPE, THE NORTHWESTERN PROPERTY CORNER OF LOT 3 BEING LANDS NOW OR FORMERLY OWNED BY THE CLAYTON DEVELOPMENT COMPANY AS RECORDED IN DEED BOOK 4483, PAGE 821 AS SHOWN IN PLAT BOOK 78, PAGES 113-114, JOHNSTON COUNTY REGISTRY; THENCE ALONG AND WITH SAID WESTERN PROPERTY LINE SOUTH 25°57'55" WEST A DISTANCE OF 500.20 FEET TO AN EXISTING IRON PIPE, THE NORTHERN PROPERTY CORNER OF LOT 1 BEING LANDS NOW OR FORMERLY OWNED BY CLAYTON MULTI FAMILY INVESTMENTS LLC AS RECORDED IN DEED BOOK 4229, PAGE 901 AS SHOWN IN PLAT BOOK 78, PAGES 113-114, JOHNSTON COUNTY REGISTRY; THENCE ALONG AND WITH SAID WESTERN PROPERTY LINE SOUTH 25°58'16" WEST A DISTANCE OF 827.85 FEET TO AN EXISTING IRON PIPE, THE EASTERN PROPERTY CORNER OF LANDS NOW OR FORMERLY OWNED BY EAST VILLAGE INVESTMENTS LLC AS RECORDED IN DEED BOOK 4099, PAGE 330, JOHNSTON COUNTY REGISTRY; THENCE ALONG AND WITH SAID EASTERN PROPERTY LINE NORTH 35°55'03" WEST A DISTANCE OF 295.76 FEET TO A NEWLY SET IRON PIPE; THENCE SOUTH 22°41'19" WEST A DISTANCE OF 380.94 FEET TO A NEWLY SET IRON PIPE LOCATED ON THE NORTHERN RIGHT-OF-WAY LINE OF E. FRONT STREET; THENCE ALONG AND WITH SAID RIGHT-OF-WAY NORTH 48°11'35" WEST A DISTANCE OF 33.23 FEET TO A POINT; THENCE ALONG A CURVE TO THE RIGHT AN ARC DISTANCE OF 240.90 FEET, SAID CURVE HAVING A RADIUS OF1820.00 FEET, A CHORD DIRECTION OF NORTH 44°24'04" WEST AND CHORD DISTANCE OF 240.73 FEET TO A NEWLY SET IRON PIPE AND BEING THE SOUTHEASTERN PROPERTY CORNER OF TRACT 2A AS RECORDED IN PLAT BOOK 87, PAGE 363, JOHNSTON COUNTY REGISTRY; THENCE ALONG AND WITH SAID EASTERN PROPERTY NORTH 47°05'14" EAST A DISTANCE OF 125.31 FEET TO A NEWLY SET IRON PIPE; THENCE NORTH 48°42'50" WEST A DISTANCE OF 136.53 FEET TO A NEWLY SET IRON PIPE; THENCE ALONG A CURVE TO THE RIGHT AN ARC DISTANCE OF 29.35 FEET, SAID CURVE HAVING A RADIUS OF 277.50 FEET, A CHORD DIRECTION OF NORTH 45°41'01" WEST AND CHORD DISTANCE OF 29.34 FEET TO A NEWLY SET IRON PIPE; THENCE SOUTH 57°59'20" WEST A DISTANCE OF 95.15 FEET TO A NEWLY SET IRON PIPE LOCATED ON THE NORTHERN RIGHT-OF-WAY LINE OF E. FRONT STREET; THENCE ALONG A CURVE TO THE RIGHT AN ARC DISTANCE OF 408.63 FEET, SAID CURVE HAVING A RADIUS OF1820.00 FEET, A CHORD DIRECTION OF NORTH 28°23'08" WEST AND CHORD DISTANCE OF 407.77 FEET TO A POINT; THENCE NORTH 21°57'05" WEST A DISTANCE OF 44.92 FEET TO A NEWLY SET IRON PIPE, THE SOUTHWESTERN PROPERTY CORNER OF LANDS NOW OR FORMERLY OWNED BY THE UNITED STATES POSTAL SERVICE AS RECORDED IN DEED BOOK 1632, PAGE 163, JOHNSTON COUNTY REGISTRY; THENCE LEAVING SAID RIGHT-OF-WAY ALONG AND WITH SAID SOUTHERN PROPERTY LINE NORTH 68°14'59" EAST A DISTANCE OF 222.44 FEET TO A NEWLY SET IRON PIPE; THENCE NORTH 21°58'29" WEST A DISTANCE OF 185.01 FEET TO A NEWLY SET IRON PIPE LOCATED ON SAID SOUTHERN RIGHT-OF-WAY LINE OF MILL STREET; THENCE ALONG AND WITH SAID RIGHT-OF-WAY NORTH 68°27'18" EAST A DISTANCE OF 112.27 FEET TO A POINT; THENCE NORTH 68°31'23" EAST A DISTANCE OF 374.44 FEET TO A NEWLY SET IRON PIPE, SAID PIPE BEING LOCATED AT SAID INTERSECTION OF THE EASTERN RIGHT-OF-WAY LINE OF E. RIDGE CIRCLE AND SOUTHERN RIGHT-OF-WAY LINE OF MILL STREET; THENCE CROSSING BACK OVER SAID RIGHT-OF-WAY ALONG SAID PREVIOUS TIE LINE NORTH 80°22'41" WEST A DISTANCE OF 58.08 FEET TO SAID NEWLY SET IRON PIPE LOCATED AT SAID INTERSECTION OF THE WESTERN RIGHT-OF-WAY LINE OF E. RIDGE CIRCLE AND THE NORTHERN RIGHT-OF-WAY LINE OF MILL STREET; THENCE ALONG AND WITH SAID NORTHERN RIGHT-OF-WAY SOUTH 68°31'23" WEST A DISTANCE OF 213.32 FEET TO A NEWLY SET IRON PIPE LOCATED AT THE INTERSECTION OF SAID NORTHERN RIGHT-OF-WAY LINE AND THE EASTERN RIGHT-OF-WAY LINE OF CREEKSIDE DRIVE; THENCE ALONG AND WITH SAID EASTERN RIGHT-OF-WAY NORTH 22°22'41" WEST A DISTANCE OF 303.31 FEET TO A NEWLY SET IRON PIPE LOCATED ON SAID SOUTHERN RIGHT-OF-WAY LINE OF CENTRAL STREET; THENCE ALONG AND WITH SAID RIGHT-OF-WAY NORTH 68°17'29" EAST A DISTANCE OF 75.84 FEET TO THE POINT OF BEGINNING, CONTAINING 31.5977 ACRES.