22062_Smokey Hollow 2_PCPkg_20190812

NOTICE OF INTENT TO REDEVELOP A BR0WNFIELDS PROPERTY
Site Name: Smokey Hollow 2
Brownfields Project Number: 22062-18-092
North Carolina's Brownfields Property Reuse Act (the "Act"), North Carolina General Statutes
("NCGS") § 130A-310.30 through 130A-310.40, provides for the safe redevelopment of properties that may
have been or were contaminated by past industrial and commercial activities. One of the Act's
requirements is this Notice of Intent to Redevelop a Brownfields Property approved by the North Carolina
Department of Environmental Quality ("DEQ"). See NCGS § 130A-310.34(a). The Notice of Intent must
provide, to the extent known, a legal description of the location of the brownfields property, a map showing
the location of the Brownfields Property, a description of the contaminants involved and their
concentrations in the media of the Brownfields Property, a description of the intended future use of the
Brownfields Property, any proposed investigation and remediation, and a proposed Notice of Brownfields
Property prepared in accordance with NCGS § 130A-310.35. The party ("Prospective Developer") who
desires to enter into a Brownfields Agreement with DEQ must provide a copy of this Notice to all local
governments having jurisdiction over the Brownfields Property. The proposed Notice of Brownfields
Property for a particular brownfields project is attached hereto; the proposed Brownfields Agreement,
which is attached to the proposed Notice of Brownfields Property as Exhibit A, contains the other required
elements of this Notice. Written public comments may be submitted to DEQ within 30 days after the latest
of the following dates: the date the required summary of this Notice is (1) published in a newspaper of
general circulation serving the area in which the Brownfields Property is located, (2) conspicuously posted
at the Brownfields Property, and (3) mailed or delivered to each owner of property contiguous to the
Brownfields Property. Written requests for a public meeting may be submitted to DEQ within 21 days
after the period for written public comments begins. Those periods will start no sooner than August 17,
2017 and will end on the later of: a) 30 and 21 days, respectively, after that; or b) 30 and 21 days,
respectively, after completion of the latest of the three (3) above -referenced dates. All comments and
meeting requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environmental Quality
1646 Mail Service Center
Raleigh, North Carolina 27699-1646
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NOTICE OF INTENT TO REDEVELOP A BR0WNFIELDS PROPERTY
Site Name: Smokey Hollow 2
Brownfields Project Number: 22062-18-092
North Carolina's Brownfields Property Reuse Act (the "Act"), North Carolina General Statutes
("NCGS") § 130A-310.30 through 130A-310.40, provides for the safe redevelopment of properties that may
have been or were contaminated by past industrial and commercial activities. One of the Act's
requirements is this Notice of Intent to Redevelop a Brownfields Property approved by the North Carolina
Department of Environmental Quality ("DEQ"). See NCGS § 130A-310.34(a). The Notice of Intent must
provide, to the extent known, a legal description of the location of the brownfields property, a map showing
the location of the Brownfields Property, a description of the contaminants involved and their
concentrations in the media of the Brownfields Property, a description of the intended future use of the
Brownfields Property, any proposed investigation and remediation, and a proposed Notice of Brownfields
Property prepared in accordance with NCGS § 130A-310.35. The party ("Prospective Developer") who
desires to enter into a Brownfields Agreement with DEQ must provide a copy of this Notice to all local
governments having jurisdiction over the Brownfields Property. The proposed Notice of Brownfields
Property for a particular brownfields project is attached hereto; the proposed Brownfields Agreement,
which is attached to the proposed Notice of Brownfields Property as Exhibit A, contains the other required
elements of this Notice. Written public comments may be submitted to DEQ within 30 days after the latest
of the following dates: the date the required summary of this Notice is (1) published in a newspaper of
general circulation serving the area in which the Brownfields Property is located, (2) conspicuously posted
at the Brownfields Property, and (3) mailed or delivered to each owner of property contiguous to the
Brownfields Property. Written requests for a public meeting may be submitted to DEQ within 21 days
after the period for written public comments begins. Those periods will start no sooner than August 17,
2017 and will end on the later of: a) 30 and 21 days, respectively, after that; or b) 30 and 21 days,
respectively, after completion of the latest of the three (3) above -referenced dates. All comments and
meeting requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environmental Quality
1646 Mail Service Center
Raleigh, North Carolina 27699-1646
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Property Owner: LVA4 Raleigh P&W I1, LLC
Recorded in Book , Page
Associated plat recorded in Plat Book , Page
NOTICE OF BROWNFIELDS PROPERTY
Site Name: Smokey Hollow 2
Brownfields Project Number: 22062-18-092
This documentary component of a Notice of Brownfields Property ("Notice"), as well
as the plat component, have been filed this day of , 201_ by WK
Smokey Hollow, LLC, WK Smokey Hollow 2, LLC, WK Smokey Hollow 3, LLC, & WK
Smokey Hollow 4, LLC ("co -Prospective Developers").
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 comprised of approximately 3.47 acres of previously commercial
property located on the north side of downtown Raleigh formerly at the addresses of 413 N.
Harrington Street, and 0, 506, 516, 520 and 524 N. West Street. These six former parcels have
been recombined into two parcels and have been assigned the addresses of 421 N. Harrington
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Street and 500 N. West Street.
The co -Prospective Developers have committed themselves to redevelopment of the Brownfields
Property for no uses other than office, retail, high -density residential, and associated recreational
space and 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 Brownfields
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 office, retail, high -
density residential, and associated recreational space and parking, and subject to DEQ's
prior written approval, other commercial uses. For purposes of this restriction, the
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following definitions apply:
i. "Office" is defined as the provision of business or professional services;
ii. "Retail" is defined as the sale of goods or services, products, or
merchandise directly to the consumer or businesses and includes showrooms, personal
service, and the sales of food, beverage and consumer products, although drycleaning
operations that use chlorinated solvents are specifically prohibited;
iii. "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. Single family homes are prohibited,
and townhomes, duplexes, or other units with yards are prohibited unless approved in
writing by DEQ in advance;
iv. "Recreational space" is defined as courtyards and indoor exercise -related,
physically focused, or leisure -related activities, whether active or passive, and the facilities
for same;
V. "Parking" is defined as the temporary accommodation of motor vehicles in
an area designed for same; and
vi. "Commercial" is defined as an enterprise carried on for profit or
nonprofit by the owner, lessee or licensee.
b. 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
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contamination); and
iv. plans for the proper characterization of, and, as necessary, disposal of
contaminated soils excavated during redevelopment.
c. Within 90 days after each one-year anniversary of the effective date of this
Agreement 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 land use
restrictions in this Section;
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).
d. Unless compliance with this Land Use Restriction is waived in writing in advance
by DEQ in relation to particular buildings, demolition and/or renovation of any or all
buildings on the Brownfields Property depicted on the plat component of the Notice
referenced in paragraph 20 below shall be in accordance with applicable legal
requirements, including without limitation those related to lead and asbestos abatement
that are administered by the Health Hazards Control Unit within the Division of Public
Health of the North Carolina Department of Health and Human Services.
e. Groundwater at the Brownfields Property may not be used for any
purpose without the prior written approval of DEQ.
f. 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 above in subparagraph 15.a.
while fully protecting public health and the environment, except:
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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 a DEQ-approved
Environmental Management Plan (EMP) as outlined above in subparagraph 15.b.
g. 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 in Paragraph
15.b.
h. 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.
i. 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 Wake 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 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 paragraph: (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 paragraph, 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.
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:
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i. in de minimis quantities for cleaning and other routine housekeeping and
maintenance activities;
ii. as constituents of products and materials customarily used and stored in
office, parking, retail, and high -density residential settings, provided such products and
materials are stored in original retail packaging and used and disposed of in accordance
with applicable laws; and
iii. as constituents of fuels, lubricants and oils in emergency generators,
machinery, equipment and vehicles in on -board tanks integral to said equipment or in
flammable liquid storage containers totaling no more than 25 gallons.
k. The Brownfields Property may not be used as a playground, or for child care
centers or schools, without the prior written approval of DEQ.
1. 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.
m. 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 Wake County, certifying that,
as of said January 1st, the Notice of Brownfields Property containing these land use
restrictions remains recorded at the Wake 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, or board, association or approved entity submitting
the LURU if said owner (or each of the owners on whose behalf the joint LURU is
submitted) acquired any part of the Brownfields Property during the previous calendar
year; and
ii. the transferee's name, mailing address, telephone and facsimile numbers,
and contact person's e-mail address, if said owner (or each of the owners on whose behalf
the joint LURU is submitted) transferred any part of the Brownfields Property during the
previous calendar year.
n. A property owners' association or other entity may perform this LURU's duties,
on behalf of some or all owners of the Brownfields Property, if said association or entity
has accepted responsibility for such performance pursuant to a notarized instrument
satisfactory to DEQ that includes at a minimum, the name, mailing address, telephone and
facsimile numbers, and e-mail address of each owner on whose behalf the LURU is
proposed to be submitted.
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o. 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.
p. A LURU submitted for rental units shall include the rent roll and enough of each
lease entered into during the previous calendar year to demonstrate compliance with lessee
notification requirements in paragraphs 21 and 22 of this agreement provided that if
standard form leases are used in every instance, a copy of such standard form lease may be
sent in lieu of copies of actual leases.
For purposes of the land use restrictions set forth above, the DEQ point of contact shall be
the DEQ official 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.
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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_
WK Smokey Hollow, LLC
John M. Kane
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 Seal)
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Official Signature of Notary
Notary's printed or typed name, Notary Public
My commission expires:

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_.
WK Smokey Hollow 2, LLC
John M. Kane
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
(Official Seal) Notary's printed or typed name, Notary Public
My commission expires:
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E

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_.
WK Smokey Hollow 3, LLC
John M. Kane
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
(Official Seal) Notary's printed or typed name, Notary Public
My commission expires:
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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_.
WK Smokey Hollow 4, LLC
John M. Kane
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
(Official Seal) Notary's printed or typed name, Notary Public
My commission expires:
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II

ACKNOWLEDGMENT OF PROPERTY OWNER
As the current owner, or representative of said owner, of at least part of the Brownfields
Property, I hereby acknowledge recordation of this Notice of Brownfields Property and
the land use restrictions contained herein.
M.
LVA4 Raleigh P&W II, LLC
John M. Kane Date
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
(Official Seal) Notary's printed or typed name, Notary Public
My commission expires:
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WI
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
Ellen Lorscheider Date
Deputy Director, Division of Waste Management
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EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: WK Smokey Hollow, LLC, WK Smokey Hollow 2, LLC, WK Smokey
Hollow 3, LLC, & WK Smokey Hollow 4, LLC
UNDER THE AUTHORITY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, NCGS § 130A-310.30, et SeMc .
Brownfields Project #22062-18-092
I. INTRODUCTION
BROWNFIELDS AGREEMENT re:
Smokey Hollow 2
413 N. Harrington Street,
0, 506, 516, 520 & 524 N. West St.
Raleigh, Wake County
This Brownfields Agreement ("Agreement") is entered into by the North Carolina Department of
Environmental Quality ("DEQ") and co -Prospective Developers WK Smokey Hollow, LLC, WK
Smokey Hollow 2, LLC, WK Smokey Hollow 3, LLC, & WK Smokey Hollow 4, LLC
(collectively the "Parties") pursuant to the Brownfields Property Reuse Act of 1997, NCGS §
130A-310.30, et sue. (the "Act") for the multi -parcel property located on the north side of
downtown Raleigh at the former addresses of 413 N. Harrington Street, and 0, 506, 516, 520, and
524 N. West Street (the `Brownfields Property"). The parcels that comprise the Brownfields
Property were recombined on June 3, 2019 and are now are assigned the addresses of 421 N.
Harrington Street and 500 N. West Street. A map showing the location of the Brownfields
Property that is the subject of this Agreement is attached hereto as Exhibit 1. WK Smokey
Hollow, LLC, WK Smokey Hollow 2, LLC, WK Smokey Hollow 3, LLC, and WK Smokey
Hollow 4, LLC hereby acknowledge that they will be jointly and severally responsible for
BFA Smokey Hollow 2/22062-18-092/09Aug2019

any liability incurred by Prospective Developer, and jointly and severally entitled to all
benefits and protections afforded to, Prospective Developer as defined in paragraph 2
below, pursuant to this Agreement.
The co -Prospective Developers are WK Smokey Hollow, LLC, WK Smokey Hollow 2,
LLC, WK Smokey Hollow 3, LLC, and WK Smokey Hollow 4, LLC; these entities are each
manager -managed limited liability corporations registered in North Carolina on January 8, 2016,
December 8, 2017, March 26, 2018, and June 28, 2018, respectively. The principal address of the
co -Prospective Developers is 4321 Lassiter at North Hills, Suite 250, Raleigh, North Carolina,
27609. WK Smokey Hollow, LLC, WK Smokey Hollow 2, LLC, WK Smokey Hollow 3, LLC,
and WK Smokey Hollow 4, LLC are managed by John M. Kane. The co -Prospective
Developers plan to redevelop the Brownfields Property for no uses other than office, retail, high -
density residential, and associated recreational space and 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
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 WK Smokey Hollow, LLC, WK Smokey Hollow 2, LLC, WK Smokey
2
BFA Smokey Hollow 2/22062-18-092/09Aug2019

Hollow 3, LLC, and WK Smokey Hollow 4, LLC for contaminants at the Brownfields Property.
The Parties agree that WK Smokey Hollow, LLC, WK Smokey Hollow 2, LLC, WK
Smokey Hollow 3, LLC, and WK Smokey Hollow 4, LLC's entry into this Agreement, and the
actions undertaken by WK Smokey Hollow, LLC, WK Smokey Hollow 2, LLC, WK Smokey
Hollow 3, LLC, and WK Smokey Hollow 4, LLC in accordance with the Agreement, do not
constitute an admission of any liability by WK Smokey Hollow, LLC, WK Smokey Hollow 2,
LLC, WK Smokey Hollow 3, LLC, or WK Smokey Hollow 4, LLC for contaminants at the
Brownfields Property. The resolution of this potential liability, in exchange for the benefit WK
Smokey Hollow, LLC, WK Smokey Hollow 2, LLC, WK Smokey Hollow 3, LLC, and WK
Smokey Hollow 4, LLC shall provide to DEQ, is in the public interest.
IL 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 WK Smokey Hollow, LLC, WK Smokey Hollow
2, LLC, WK Smokey Hollow 3, LLC, and WK Smokey Hollow 4, LLC.
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III. STATEMENT OF FACTS
3. The Brownfields Property was formerly comprised of six parcels totaling 3.57 acres.
Parcels 1 through 6 had been assigned Parcel ID Nos. 1704512292,1704511285, 1704512404,
1704511469, 1704511562, and 1704512525, and the addresses 413 N. Harrington Street, 506 N.
West Street, 516 N. West Street, 520 N. West Street, 0 N. West Street, and 524 N. West Street,
respectively. As the result of a recombination of these parcels effective June 3, 2019, the
Brownfields Property consists of two parcels totaling 3.47 acres and has been assigned Parcel ID
Nos. 1704512232 and 1704513421, and the addresses 500 N. West Street, and 421 N. Harrington
Street, respectively. The recombination also included minor corrections and the transfer of
approximately 0.08 acres from these parcels to the N. West Street and N. Harrington Street public
right-of-ways. In addition, the original Parcel lwas formerly comprised of three parcels with the
addresses 413, 441, & 447 N. Harrington Street. That portion of the Brownfields Property is
subject to a prior Brownfields Agreement (BF Project No. 20031-16-092), which was recorded on
January 6, 2017 (Wake County Registry of Deeds, Book 016661, Page 01312). This Brownfields
Agreement supersedes the original Brownfields Agreement for Parcel 1 (413 N. Harrington Street)
previously recorded in 2017 as referenced above (Brownfields Project No. 20031-16-092), and
replaces those land use restrictions respective to these parcels with those provided below in
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paragraph 15. It is the intent of DEQ and the co -Prospective Developers that the execution and
recordation of this Agreement between DEQ and co -Prospective Developers shall not in any way
impact any other person's existing liability protection under the Brownfields Property Reuse Act
and previously entered Brownfields Agreements. Specifically, this Agreement shall not alter the
existing liability protection of any applicable person identified in Section 130A-310.33 of the
Brownfields Property Reuse Act as provided by the respective agreement attached as Exhibit A to
the Harrington Street Notice of Brownfields Property that was originally recorded on January 6,
2017 at the Wake County Registry of Deeds (Book 016661, Page 01312). Under that Notice of
Brownfields Property, Land Use Restriction No. 2, which required that development activities be
conducted under a DEQ-approved Environmental Management Plan (EMP), has been complied
with for grading and other work done on the Brownfields Property prior to the effective date of
this agreement.
4. The Brownfields Property is bordered to the north by the extension of W. Johnson
Street with the initial Smokey Hollow redevelopment (BF Project No. 20024-16-92) beyond; to
the east by N. Harrington Street with Wake County General Services complex property and
commercial property beyond; to the south by the West residential apartment building with W.
North Street beyond; and to the west by N. West Street with former commercial sites such as The
Pine State Creamery (site of a former vehicle maintenance garage) and Norwood Oil (site of
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former bulk oil storage) beyond.
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 1 Environmental Site Assessment, 413
Sitech Consulting, Inc.
July 8, 2004
N. Harrington St.
Limited Phase Il Soil and Groundwater
Sitech Consulting, Inc.
August 31, 2004
Assessment, 401 and 413 N. Harrington St.
Report of Asbestos Survey
Mid -Atlantic Associates, Inc.
January 24, 2013
Phase I Environmental Site Assessment, 437
Mid -Atlantic Associates, Inc.
January 25, 2013
and 441 N. Harrington St.
Phase II Environmental Site Assessment,
Mid -Atlantic Associates, Inc.
February 21, 2013
437 and 441 N. Harrington St.
Phase I Environmental Site Assessment, 413
Mid -Atlantic Associates, Inc.
January 13, 2015
N. Harrington St.
Letter Report of Environmental Test Results,
Mid -Atlantic Associates, Inc.
February 11, 2015
413 N. Harrington Street
Letter Report of Environmental Services,
Mid -Atlantic Associates, Inc.
August 17, 2016
413, 437, and 441 N. Harrington Street
Phase I Environmental Site Assessment
Mid -Atlantic Associates, Inc.
June 8, 2017
Report
Phase I Environmental Site Assessment,
Solutions - IES
March 27, 2018
516 N. West Street
Phase I Environmental Site Assessment,
Proctor Environmental
Three Parcel Commercial Site, 0, 506, and
Services, Inc.
August 6, 2018
520 N. West Street
Vapor Intrusion Soil Gas Sampling Report,
RDH Environmental
March 31, 2019
Smokey Hollow 2 Site
Consulting
Limited Environmental Site Assessment
Aptus Management, PLLC
April 22, 2019
Report, Smokey Hollow 2
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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 Brownfields Property was initially developed as single family residences
from at least 1914 to 1959. Around 1965, as part of a downtown Raleigh redevelopment
initiative led by the Raleigh Redevelopment Commission, the residences were razed. The
Brownfields Property makes up much of "Block D" of the Capital Redevelopment Area as it was
initially referred to in 1965. Incorporated into historic deeds circa 1966 for certain of these
parcels were a number of restrictive covenants that prohibited specific uses including
manufacturing, disposal, or residential uses; however, language in the deeds conveying these
parcels from the Raleigh Redevelopment Commission had provisions for the automatic
termination of these restrictive covenants at midnight, November 6, 1990. Hence, these
restrictive covenants no longer apply.
b. From the mid-1960s through 2018, the primary uses of the Brownfields
Property on the various parcels had been office space, a fur storage facility, antique shop, and
associated surface parking. The original six parcels comprising the Brownfields Property and
their relationship to the two new parcels are summarized in the table below:
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Former
New Parcel
New Parcel
New
Former
Former
Parcel ID
Former
Reference &
ID No.
Acreage2
Parcel
Address
Acreage
No.
Address
Lot 2-
413 N.
1'
Harrington
1704512292
2.17
421 N.
1704513421
0.95
Harrington
St.
St.
506 N.
2
1704511285
0.66
West St.
516 N.
3
1704512404
0.51
West St.
Lot 1-
520 N.
4
1704511469
0.04
500 N. West
1704512232
2.52
West
St.
5
1704511562
0.05
West St.
524 N.
6
1704512525
0.14
West St.
'Encompasses the past recombination of three parcels with the former addresses of 413, 437, &
441 N. Harrington Street that is subject to a prior Brownfields Agreement (BF Project No.
20031-16-092), which was recorded on January 6, 2017 (Wake County Registry of Deeds, Book
016661, Page 01312).
2The new acreage is less approximately 0.1 acres that was transferred to adjacent public right-of-
ways.
Additional information on the six original parcels, which were recombined to make the two -
parcel Brownfields Property, is provided below:
i. Parcel I
Parcel 1, 413 N. Harrington Street, was created through the recombination of three parcels
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(formerly addressed as 413, 437 and 441 N. Harrington Street) and is subject to a prior
Brownfields Agreement as referenced above, was developed with office buildings, originally
constructed in the mid- to late-1960s, with asphalt -paved surface parking, concrete walkways
and landscaped areas. In 1965, this parcel was referenced as Lots 4, 5, 6, 7, and 10 of the
Raleigh Redevelopment Commission's Capital Redevelopment Area.
Parcel I —former 413 N. Harrington Street - The singular parcel
previously addressed as 413 N. Harrington Street was sold by the Raleigh Redevelopment
Commission to Larry E. Ball who sold the parcel in 1971 to the North Carolina State Employees
Association, which changed its name in 1984 to the State Employee Association of North
Carolina, Inc. In 2005, Harrington Street Partners, LLC, one of the Prospective Developers of the
original Brownfields Agreement for this portion of the Brownfields Property, purchased this
parcel. On December 13, 2017, Harrington Street Partners, LLC sold this parcel to WK Smokey
Hollow 2, LLC, the Prospective Developer for this Brownfields Property. Based on historic city
directories, the various uses of the parcel at the former 413 N. Harrington Street includes office
space for the following: Abrams Rent All (1972), American Defender Life Insurance (from 1977
until at least 1982), which operated a print shop at this location, the State Employees Association
of North Carolina (from 1988 until at least 1997), Durward F. Gunnelis (2003), and West
Developers, LLC (2012).
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2. Parcel 1, 437 and 441 N. Harrington Street - The parcels
formerly addressed as 437 and 441 N. Harrington Street have been sold and purchased by the
same entities, but at slightly different time periods. The parcel at 437 N. Harrington Street was
purchased by the Williams Investment Corporation in 1966 and sold to Nancy and William
Marlowe, Jr, in 2004, who owned this parcel until 2009, when the property was transferred to
Marlowe Farms & Land Trust, Inc. In 2015, the parcel was sold to one of the original co -
Prospective Developers, Harrington Street Acquisition Partners, LLC. Similarly, the parcel at
441 N. Harrington Street was purchased by the Williams Investment Corporation in 1966 and
sold to Nancy and William Marlowe, Jr. in 2004, who owned the property until 2007 when it was
transferred to the Marlowe Farms & Land Trust, Inc. This parcel was also sold in 2015 to
Harrington Street Acquisition Partners, LLC. On December, 13, 2017, WK Smokey Hollow 2,
LLC, Prospective Developer of this Brownfields Agreement, purchased these parcels, which
were subsequently recombined with the 413 N. Harrington Street parcel to create a single parcel,
and was until recently addressed solely by the address of 413 N. Harrington Street. Based on
historic city directories, the various uses at the former 437 N. Harrington Street and 441 N.
Harrington Street parcels included office space for multiple State agencies and a non-profit
organization: The North Carolina Medical Care Commission (1972), the State Department of
Human Resources Division of Facility Services (from at least 1977 through 1982), and the State
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Department of Human Resources Child Support Enforcement (1998), The State Board of
Alcoholic Control (from 1972 through at least 1977), the State Department of Human Resources
Child Support Accounting (1982), the State Department of Human Resources Child Support
(1988), the State Department of Environmental Health and Natural Resources Groundwater
Section (1992), North Carolina Department of Commerce (2007), United Cerebral Palsy of
North Carolina (2012), and the North Carolina State Board of Elections (2013).
ii_ Parcel 2
Parcel 2, 506 N. West Street, was originally developed with single family dwellings and was
bisected by Tucker Street as late as 1950. This parcel is also referenced as Lots 11 and 12, Block
D of the Raleigh Redevelopment Commission's Capital Redevelopment Area. This parcel was
developed as an asphalt -paved surface parking lot. Available real estate records note that as of
September 27, 1965, this parcel was owned by the Pine State Creamery Co., which sold the
parcel to Raleigh Midtown Investors, LLC on September 12, 1997. This parcel was acquired by
The Creamery Limited Partnership in January 21, 1999 and then by NP Creamery, LLC on
February 8, 2018. WK Smokey Hollow 4, LLC purchased Parcel 2 on August 31, 2018, and
then sold it to WK Harrington, LLC on January 29, 2019.
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iii. Parcel 3
Parcel 3, 516 N. West Street, was originally developed with single family dwellings from 1914
through 1965. It is referred to as Lot 13, Block D of the Raleigh Redevelopment Commission's
Capital Redevelopment Area. Pigeon Branch Creek flowed north through the northwestern area
of this parcel before it was culvertized in the mid-1960s. A commercial building was
constructed on this parcel in 1966 and used as office space for a variety of tenants, including a
wholesale medical supplies operation from 1972 through 1997, an environmental consultant
circa 2005, and from 2014 through 2018, at least two real estate companies. Site ownership
records indicate that the site was owned by Roane Barker, Inc. on January 1, 1966, followed by
RLR of Raleigh Limited Partnership on December 4, 1997, Hendrickson Properties V, LLC on
June 16, 2000, Atlas NC II SPE, LLC on November 1, 2011, and Paper Clip Properties, LLC on
December 23, 2011. Paper Clip Properties, LLC sold this parcel to WK Smokey Hollow 3, LLC
on April 3, 2018, which then sold to WK Harrington LLC on January 29, 2019.
iv. Parcel 4
Parcel 4, 520 N. West Street, was originally developed with single family dwellings, but by 1959
had been improved with one commercial building. It is also referenced as Lot 14 of Block D of
the Raleigh Redevelopment Commission's Capital Redevelopment Area. By 1962 and
continuing onto 1972, this building was used by Hilker Brothers for fur storage. By 1977, the
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building was used as office space for a variety of tenants, including a business machine supplier,
an electronics repair facility from 2005 to 2010, and a scooter shop from 2010 to 2014. Most
recently, an antique shop was operated at this location. Available records indicate that this
parcel was acquired by individuals of the Johnson family on January 1, 1979 and was sold to 520
Partners, LLC on September 4, 2007. This parcel was sold to WK Smokey Hollow 4, LLC on
August 31, 2018, and then to WK Harrington, LLC on January 19, 2019.
v_ Parcel _5
Parcel 5, 0 N. West Street, had been originally developed with single family dwellings, but was
later developed into a surface parking lot to support the businesses at 520 N. West Street. It has
the same ownership history as Parcel 4 noted above.
vi_ Parcel h
Parcel 6, 524 N. West Street, was originally created during the realignment of W. Johnson Street.
It was originally acquired on February 12, 2016 by WK Smokey Hollow, LLC, the Prospective
Developer for the Smokey Hollow Brownfields Project (BF Project No. 20024-16-092)
immediately to the north, and was sold to WK Harrington LLC on April 2, 2019.
c. Buildings on all of the Brownfields Property were demolished in March 2019 to
make way for the redevelopment.
d. On July 19, 2019, the Brownfields Property in its entirety was sold by WK
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Harrington LLC to LVA4Raleigh P&W II, LLC.
7. Pertinent environmental information regarding the Brownfields Property and
surrounding area includes the following:
a. The Brownfields Property is situated in an area of Raleigh that moved from
predominantly residential to commercial uses in the 1960s. The Brownfields Property is not
listed on any regulatory environmental databases, except that a portion of the Brownfields
Property (pre -recombination Parcel 1) is the subject of a Notice of Brownfields Property between
co -Prospective Developers Harrington Street Partners, LLC and Harrington Street Acquisition
Partners, LLC and DEQ that was recorded on January 6, 2017 at the Wake County Registry of
Deeds, Book 016661, Page 01312).
b. Several nearby and neighboring properties are listed. Bulk fuel oil storage
operated by Standard Oil formerly occupied a property to the south of North Street that is
hydrogeologically upgradient of the Brownfields Property. Additional gasoline service station or
other sources of offsite petroleum contamination are or were located to the east and west of the
Brownfields Property. These include the Wake County General Services property located east of
the Brownfields Property at 401 Capital Boulevard with two documented petroleum releases in
2009 and in 2011; the former Norwood Oil Company, which was formerly located northwest of
the Brownfields Property at 509 and 601 N. West Street with four documented petroleum
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releases impacting soil and groundwater in 1985, 1994, 1997 and 1998; and the former Pine
State Creamery, which was formerly located west of the Brownfields Property at 405 N. West
Street and was the site of one documented petroleum release in 1992 that impacted soil.
c. Petroleum -impacted soils above State action levels in effect at that time were
discovered on the southern adjacent property at 400 W. North Street during pre -construction
activity for the West Condominium building in 2004. Impacted soil was excavated and removed
from the adjacent property prior to construction of the adjacent building.
8. The most recent environmental sampling at the Brownfields Property reported in the
Environmental Reports occurred on March 20, 2019. The tables set forth in Exhibit 2 to this
Agreement, contaminants present at the Brownfields Property above applicable standards or
screening levels for each media sampled. Screening levels and standards are shown for reference
only and are not set forth as cleanup levels for the purposes of this Agreement.
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 October 17, 2018, and the
following:
a. On December 14, 2017, a co -Prospective Developer purchased one of the
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parcels of the Brownfields Property located at 413 N. Harrington Street (pre -recombination
Parcel 1).
b. On April 3, 2018, a co -Prospective Developer purchased one of the parcels of
the Brownfields Property located at 516 N. West Street (pre -recombination Parcel No. 3).
c. On August 31, 2018, a co -Prospective Developer purchased three of the parcels
of the Brownfields Property located at 0, 506, and 520 N. West Street (pre -recombination Parcels
5, 2 & 4, respectively).
d. On February 12, 2016, a co -Prospective Developer purchased 524 N. West Street
(pre -recombination Parcel 6), and sold it to WK Harrington, LLC on January 29, 2019.
e. On January 29 2019, the co -Prospective Developers sold the six pre -
recombination parcels to WK Harrington, LLC.
f. In March 2019, WK Harrington, LLC arranged for the demolition of all buildings
and improvements on the Brownfields Property and began site development work in accordance
with a DEQ-approved Environmental Management Plan (EMP) as required by subparagraph 15.b.
below.
g. On June 3, 2019, WK Harrington, LLC recombined the six parcels purchased
from the co -Prospective Developers into the two parcels that comprise the Brownfields Property.
h. On July 19, 2019, WK Harrington, LLC sold the Brownfields Property to LVA4
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Raleigh P&W II, LLC.
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
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requirements.
11. Prospective Developer has paid to DEQ the $2,000 fee to seek a brownfields
agreement required by NCGS § 130A-310.39(a)(1), and shall make a payment to DEQ of $6,000
at the time Prospective Developer and DEQ enter into this Agreement, defined for this purpose
as occurring no later than the last day of the public comment period related to this Agreement.
The Parties agree that such fees will suffice 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 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 key component of the City of Raleigh's plans for Capital Boulevard corridor
improvements and the Peace Street area revitalization, which will help anchor downtown
Raleigh's northern perimeter, and serve as a gateway linking downtown Raleigh and Capital
Boulevard;
OR
BFA Smokey Hollow 2/22062-18-092/09Aug2019

c. a spur to additional community investment and redevelopment, through
improved neighborhood appearance;
d. the creation of an estimated 50 permanent commercial/retail jobs, and
hundreds of temporary construction -related jobs during redevelopment of the Brownfields
Property;
e. an increase in tax revenue for affected jurisdictions;
f. a mixed -use anchor development consistent with the City of Raleigh's Unified
Development Ordinance and Comprehensive Plan, providing housing opportunities, office space,
and retail services for the area;
g. expanded opportunities to walk to work and other nearby services and
amenities, and use of public transportation, which reduces traffic, improves air quality, and
reduces our carbon footprint; and
h. "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
19
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and Environmental Design certification program (Sustainable Sites, Water Efficiency, Energy &
Atmosphere, Materials & Resources, Indoor Environmental Quality, Locations & Linkages,
Awareness & Education, Innovation in Design and Regional Priority), or a similar program.
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 this Section.
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 being remediated to
unrestricted use standards. As referenced in paragraph 3 above, for Parcel 1 (413 N. Harrington
Street), there were previous land use restrictions recorded in 2017 as part of a previous
brownfields agreement (Brownfields Project No. 20031-16-092). The land use restrictions
placed herein supersede and replace the original land use restrictions recorded for Parcel 1 with
those set forth in this paragraph. All references to DEQ shall be understood to include any
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successor in function.
a. No use may be made of the Brownfields Property other than office, retail,
high -density residential, and associated recreational space and parking, and subject to DEQ's
prior written approval, other commercial uses. For purposes of this restriction, the following
definitions apply:
i. "Office" is defined as the provision of business or professional services;
ii. "Retail" is defined as the sale of goods or services, products, or
merchandise directly to the consumer or businesses and includes showrooms, personal service,
and the sales of food, beverage and consumer products, although drycleaning operations that use
chlorinated solvents are specifically prohibited;
iii. "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. Single family homes are prohibited, and townhomes, duplexes, or other units
with yards are prohibited unless approved in writing by DEQ in advance;
iv. "Recreational space" is defined as courtyards and indoor exercise-
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related, physically focused, or leisure -related activities, whether active or passive, and the
facilities for same;
v. "Parking" is defined as the temporary accommodation of motor vehicles
in an area designed for same; and
vi. "Commercial" is defined as an enterprise carried on for profit or
nonprofit by the owner, lessee or licensee.
b. 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;
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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.
c. Within 90 days after each one-year anniversary of the effective date of this
Agreement 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 land use
restrictions in this Section;
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,
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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).
d. Unless compliance with this Land Use Restriction is waived in writing in
advance by DEQ in relation to particular buildings, demolition and/or renovation of any or all
buildings on the Brownfields Property depicted on the plat component of the Notice referenced
in paragraph 20 below shall be in accordance with applicable legal requirements, including
without limitation those related to lead and asbestos abatement that are administered by the
Health Hazards Control Unit within the Division of Public Health of the North Carolina
Department of Health and Human Services.
e. Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
f. 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 above in subparagraph 15.a. while fully protecting public
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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 a DEQ-approved
Environmental Management Plan (EMP) as outlined above in subparagraph 15.b.
g. 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 in Paragraph 15.b.
h. 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.
i. Any deed or other instrument conveying an interest in the Brownfields Property
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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 Wake 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 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 paragraph: (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 paragraph, 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.
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 minhi is quantities for cleaning and other routine
26
BFA Smokey Hollow 2/22062-18-092/09Aug2019

housekeeping and maintenance activities;
ii. as constituents of products and materials customarily used and
stored in office, parking, retail, and high -density residential settings, provided such products and
materials are stored in original retail packaging and used and disposed of in accordance with
applicable laws; and
iii. as constituents of fuels, lubricants and oils in emergency
generators, machinery, equipment and vehicles in on -board tanks integral to said equipment or in
flammable liquid storage containers totaling no more than 25 gallons.
k. The Brownfields Property may not be used as a playground, or for child care
centers or schools, without the prior written approval of DEQ.
1. 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.
in. 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 1 st of that year shall submit a notarized Land Use Restrictions Update ("LURU") to
27
BFA Smokey Hollow 2/22062-18-092/09Aug2019

DEQ, and to the chief public health and environmental officials of Wake County, certifying that,
as of said January 1 st, the Notice of Brownfields Property containing these land use restrictions
remains recorded at the Wake 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, or board, association or approved entity submitting the
LURU if said owner (or each of the owners on whose behalf the joint LURU is submitted)
acquired any part of the Brownfields Property during the previous calendar year; and
ii. the transferee's name, mailing address, telephone and facsimile
numbers, and contact person's e-mail address, if said owner (or each of the owners on whose
behalf the joint LURU is submitted) transferred any part of the Brownfields Property during the
previous calendar year.
n. A property owners' association or other entity may perform this LURU's
duties, on behalf of some or all owners of the Brownfields Property, if said association or entity
has accepted responsibility for such performance pursuant to a notarized instrument satisfactory
to DEQ that includes at a minimum, the name, mailing address, telephone and facsimile
numbers, and e-mail address of each owner on whose behalf the LURU is proposed to be
submitted.
BFA Smokey Hollow 2/22062-18-092/09Aug2019

o. 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.
p. A LURU submitted for rental units shall include the rent roll and enough of
each lease entered into during the previous calendar year to demonstrate compliance with lessee
notification requirements in paragraphs 21 and 22 of this agreement provided that if standard
form leases are used in every instance, a copy of such standard form lease may be sent in lieu of
copies of actual leases.
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
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
29
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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.h. 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
any other applicable statute or regulation, including any amendments thereto.
20. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields
30
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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 Wake
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 Wake 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 related to the conveyance may be redacted. 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, Prospective Developer may provide DEQ with copies of a form lease
31
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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
32
BFA Smokey Hollow 2/22062-18-092/09Aug2019

other law, and shall immediately notify the DEQ Official referenced in paragraph 35.a. below of
any such required notification.
VIIL 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
the Brownfields Property Application dated October 17, 2018, and an addendum Brownfields
Property Application dated November 27, 2018, by which it applied for this Agreement. That
use is office, retail, high -density residential, and associated recreational space and 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
33
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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.
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
34
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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
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.
35
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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 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
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.
36
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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. 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)(l)-(5)'s provision of the Act's liability protection to certain persons to the same
extent as to a prospective developer, no rights, benefits or obligations conferred or imposed upon
Prospective Developer under this Agreement are conferred or imposed upon any other person.
37
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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. 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
liable for all litigation and other enforcement costs incurred by DEQ to enforce this Agreement
or otherwise obtain compliance.
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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 its successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
John M. Kane, Manager
WK Smokey Hollow, LLC, WK Smokey Hollow 2, LLC, WK Smokey
Hollow 3, LLC, & WK Smokey Hollow 4, LLC
4321 Lassiter at North Hills, Suite 250
Raleigh, NC 27609
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.
XVL 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
39
BFA Smokey Hollow 2/22062-18-092/09Aug2019

this Agreement is conditioned upon the complete and timely execution and filing of this
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 of 15 days following such receipt. 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
M
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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.
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
41
BFA Smokey Hollow 2/22062-18-092/09Aug2019

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:
Ellen Lorscheider Date
Deputy Director, Division of Waste Management
IT IS SO AGREED:
By:
John M. Kane, Manager
WK Smokey Hollow, LLC
WK Smokey Hollow 2, LLC
WK Smokey Hollow 3, LLC
WK Smokey Hollow 4, LLC
42
BFA Smokey Hollow 2/22062-18-092/09Aug2019
Date

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Exhibit 2
The most recent environmental sampling at the Brownfields Property reported in the
Environmental Reports occurred on March 20, 2019. The following tables set forth, for
contaminants present at the Brownfields 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 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):
Concentration
Groundwater
Sample
Date of
Exceeding
Standard
Contaminant
Location
Sampling
Standard
(µg/L)
(µg/L)
Benzene
TMW-2'
1/20/2015
4.9
1
TMW-2W
3/20/2019
3.5
Cadmium
2
TMW-3W
3/20/2019
3.0
Iron
TMW-1W
3/20/2019
44,000
300
Manganese
TMW-1W
3/20/2019
3,600
50
C5-C8 Aliphatic Petroleum
TMW-2
1/20/2015
2,400
400
Hydrocarbons
J — Estimated value between the method detection limit and the laboratory reporting limit.
'Temporary monitoring well nomenclature used on the original Harrington Street BFA and that
used for this BFA is similar; the former refers to wells sampled in 2015 and the latter refers to
separate well locations and has the letter "W" at the end of the sample identifier.
22062-18-092/Smokey Hollow 2/06Aug2019

SOIL
Soil contaminants in milligrams per kilogram (the equivalent of parts per million), the
screening levels for which are derived from the Preliminary Residential Health- Based Soil
Remediation Goals of the Inactive Hazardous Sites Branch of DEQ's Superfund Section
(February 2018 version):
Soil
Contaminant
Sample
Location
Depth
(ft)
Date of
Sampling
Concentration
Exceeding
Screening
Level
(mg/kg)
Residential
Screening
Level'
(mg/kg)
Arsenic
B-1 S
1-2
3/20/2019
3.2
0.68
B-2S
1-2
3/20/2019
3.0
B-3S
2.5-4.5
3/20/2019
2.7
B-4S/Dup
2.5-4.5
3/20/2019
4.2/2.3
B-5S
2.5-4.5
3/20/2019
2.1
B-6S
3-5
3/20/2019
1.9
B-7S
3-5
3/20/2019
1.4
B-8S
5-7
3/20/2019
1.8
B-9S
5-7
3/20/2019
1.6
B-IOS
4-6
3/20/2019
1.2
TMW-IS
5-6
3/20/2019
1.8
TMW-2S
5-6
3/20/2019
1.9
TMW-3S
5-6
3/20/2019
2.1
Benzo[a]pyrene
B-6S
3-5
3/20/2019
O.11J
0.11
Phenanthrene
B-6S
3-5
3/20/2019
0.74
NS3
'Screening levels 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.
2Arsenic concentrations in soil exceed the residential screening level for arsenic, but concentrations are
consistent with common background concentrations in NC soil.
3NS — No screening level established
22062-18-092/Smokey Hollow 2/06Aug2019
2

SUB -SLAB VAPOR
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):
Sub -Slab Vapor
Contaminant
Sample
Location
Date of
Sampling
Concentration
Exceeding
Screening Level
(µg/m3)
Residential
Screening
Level'
(µg/m3)
1,3-Dichlorobenzene
SG-1
3/19/2019
0.96J
NS
SG-2/Dup
3/19/2019
1.7/1.8
SG-3
3/19/2019
1.9
SG-5
3/19/2019
1.7
Ethanol
SG-1
3/19/2019
200
NS
SG-2/Dup
3/19/2019
13J/13J
SG-3
3/19/2019
14J
SG-4
3/19/2019
140
SG-5
3/19/2019
25
Trichlorofluoromethane
SG-1
3/19/2019
4.8
NS
SG-2/Dup
3/19/2019
2.4J/2.5J
SG-3
3/19/2019
12
SG-4
3/19/2019
3,100
SG-5
3/19/2019
3.OJ
'Screening 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.
Sub -slab vapor samples were collected beneath foundations for buildings that were demolished in 2019 or
under asphalt parking surfaces.
J — estimated value between the method detection limit and the laboratory reporting limit
NS — No screening level established
22062-18-092/Smokey Hollow 2/06Aug2019

SITE
VICINITY MAP
NO SCALE
NOTES
BOUNDARY
1. AREAS COMPUTED BY COORDINATE METHOD.
2. BASIS OF BEARING NC GRID NAD 83(2001), NAVD 88
3. ALL DISTANCES ARE HORIZONTAL GROUND DISTANCES UNLESS OTHERWISE NOTED.
4. IRON PIPES SET AT ALL CORNERS UNLESS OTHERWISE NOTED.
CURVE TABLE
CURVE
ARC LENGTH
RADIUS
I DELTA ANGLE
I CHORD BEARING
CHORD LENGTH
C 1
79.29
286.53
15'51 15
S 79'52 23 E
79.03
C2
16.95
12.00
80'55 54
S 48.07 16 E
15.58
C3
20.71
334.55
3'32 49
S 03'48 1 B W
20.71
C4
104.66
364.10
1628 08
S 13 48 00 W
104.30
C5
25.63
460.89
3' 11 09
S 20'26 43 W
25.62
5. THIS PROPERTY IS NOT LOCATED IN A DESIGNATED FEMA FLOOD PLAIN AS SHOWN ON THE
FEDERAL EMERGENCY MANAGEMENT AGENCY FLOOD INSURANCE RATE MAP NO. 3720170400J
PANEL 1704, EFFECTIVE DATE MAY 2, 2006.
6. THE LOCALIZED COORDINATE SYSTEM DEVELOPED FOR THIS PROJECT IS BASED ON THE STATE
PLANE COORDINATES ESTABLISHED BY NCGS FOR MONUMENT "PULLEN" WITH NAD 83INSRS
2001 STATE PLANE GRID COORDINATES OF NORTHING: 738,465.24(FT) EASTING: LVA4 RALEIGH P&W, LLC
2,099, 765.94(FT). THE AVERAGE COMBINED GRID FACTOR USED ON THIS PROJECT (GROU D TO D.B. 17038, PG. 162
GRID) IS 0.99990485. THE HORIZONTAL DISTANCE FROM "PULLEN" TO "CONTROL CORNEREE
MAP) IS N 60'42'44" E 6,156.47'(GROUND), 6,155.88'(GRID). B.M. 2017 PG 1246
7. FROM THE BEST AVAILABLE INFORMATION AT THE TIME OF FILING. A LISTING OF THE TECHNICAL THE AREA AND TYPES OF CONTAMINATION DEPICTED HEREON ARE APPROXIMATIONS DERIVED \ P.I.N.: 1704-51-3817 I
REPORTS USED TO PREPARE THIS PLAT ARE AVAILABLE IN THE BROWNIELDS AGREEMENT FOR
THIS PROPERTY VARIABLE A/N* 611/O
O
PUBLIC
S�Fw
I SIDEWALK & ACCESS
qMNT 4
I 'zz! '� EASEMEB.M 2017 PGpQ�)N�
- - O
CITY OF RALEIGH SANITARY
�246 SEWER EASEMENT
B.M. 2019 PG. 913
anrJAlnaaY
LINE TABLE
LINE
I BEARING
DISTANCE
L 1
S 8770 59 E
4.39
L2
N 01'55 34 E
33.31
L.
T 873 441 E
66.91
L4
T 71'49 40 E
47.50
L5
S 71-49 35 E
2.12
L6
S 88'33 34 E
56.07
L7
S 87'41 55 E
1.78
L8
S 87'41 55 E
5.44
L9
S 02'05 58 W
233. 22
L 10
S 02'05 58 W
22.65
L 11
S 02'05 58 W
27.57
L 12
S 02.05 58 W
78.60
L 13
T 22'06 26 W
36.67
L 14
N O 1'S9 19 E
132.91
L 15
N 0206 51 E
235.28
L 16
IN 02'25 47 E
117713
CONTROL CORNER (IPFI L3
I POINT OF BEGINNINGP. 1 \ \
509 WEST, LLC N.C. GRID ET
CO R S 4
4 L5 CITY OF RALEIGH SANITARY
NAD 83 ( 001) N \ SEWER EASEMENT
D.B. 1297, PG. 24 N=741,5f1.96 IJ \ B.M. 2019 PG. 913
B. M. 1981 PG 686 E=2,105,1 P9.70 L 1 I C1
TIE PKNS TO PKF
P. N.: 1704-51-0532 10' UTILITY PKNS I PKNS -_ -- IX 12 \ L6 L8 0'
0.025 ACRE/10687'41'55" E
7.73 I - _ _ Pl
I S.F. TO BE DISPOSED _ _TM_W_-1 S o DX-12-SH 10' UTILm EAs £ D) -1 H PKF W JOHNSON STREET
BY THE CITY OF I -- ________eM lsss Pc s.
RALEIGH IN A FU77JRE I TMW- 1 W 7 - - _ - - - -- - - - - _ / _
I - 1 - 66' PUBLIC R/W
NT
N.C.G.S. LLEN" I I /' // L7
NAD 83 (2 01) N I / / B.M. 1985, PG. 594
N.C. GRID CORDS.
N: 738,46 .25 (0 1
E: 2,099,7 5.94
C.G.F. 0.91990485
601�2`G SRO I SG- 1H
N.C.G.S. "MISSON"
NAD 83 (2001) S 86-50'07"i-
4285.87' (GROUND I - - - - - - - - - - - - - - - - - / I
� I I
O
I of PRIVATE DRAINAGE
of EXCHANGED 30' / I i I CHAUCER INVESTMENTS, LLC
_ of UTILITY EASEMENT / I o � EASEMENT
")I B.M.2019 PG.913 B M. 2019 PG. 913 I D.B. 17442, PG. 1477
LEGEND (UNLESS OTHERWISE NOTED) ,, I P I P.I.N.: 7704-51-5437
1------------------
BOC -BACK OF CURB BOC I
BRW - BRICK RETAINING WALL I I
CP - CALCULATED POINT (NOT SET) • I ® I I
IRF - IRON ROD FOUND O I PRIVATE DRAINAGE N I
EOP - EDGE OF PAVEMENT I EASEMENT I u I
FM - WROUGHT IRON FENCE I B.M. 2019 PG. 913
IPF - IRON PIPE FOUND O I I rn SITE UNDER CONSTRUCTION
Oa 421
IPS - IRON PIPE SET
OHG - OVERHANG L--_______I
PKF - P.K. NAIL FOUND O ryl I
PKNS - P.K. NAIL SET Oa NP CREAMERY, LLC �I1 Q B-1 s I I Z Z
R/W- RIGHT OF WAY I 1
D.B. 1344 PG. 24
I i v
®B.M.1981 PG 686 r
- TEMPORARY MONITORING WELL 1
P.I.N.: 1704-51-0356 I Q B-2S SG-4© o N
- TEMPORARY MONITORING WELL & SOIL SAMPLE POINT
R - SOIL VAPOR SAMPLE 1 I LOT 2 i m
OD
Q - SOIL SAMPLE I I 421 N. HARRINGTON STREET
000 - ADDRESS I I 0.954 ACRES 12 -
SG-2© 41,566 SO FEET ;,a - - -
I I I EXCLUDING R/W � (z
LINETYPE LEGEND I LVA4 RALEIGH P&W, LLC i p
ADJOINER - - - - - I I I Q B-3S I D.B. 1757 1, PG. 1501
I C
I p
BROWNFIELD PROPERTY BOUNDARY B.M. 2079 PG. 973 I i I P.I.N.: 1704-51-3421
EASEMENT - - - - - - - - - - - - - - - - - - - - - - - - - - - - 3
R/W -- -- -- -- O - I QB-4S I I I
I
41 Z 0 I S 87°54'32" E 155.50' I �'
ZONING BOUNDARY LINELU
3 I I
I I
CITY OF RALEIGH QZQ V I Q B-5S
SANITARY SEWER EASEMENT AREA F77
I
3 N CL J I Q B-6S I
_ Z -:) Co i SITE UNDER CONSTRUCTION I
I
Q 1 1 I
I j 32' I
- R/W
32 I - i J I WAKE COUNTY
FL R 1 TMW 3W D.B. 3720, PG. 808
I I TMW-3S 1 I B.M. 1985 PG 594
I I I
� SIDEWALK EASEMENT i I P.I.N.: 1704 - 51- 6171
Q B-7$ B.M 2019 PG. 913 I I
II I Q B-8S I
I 407 N WEST LLC I SIDEWALK EASEMENT
D.B. 77572, PG. 1314 I i LOT 1 B.M 2019 PG. 913 I
500 N. WEST STREET
I P.I.N.: 7704-51-007 1 I I 2.515 ACRES
109,571 SO FEET I
SG-3© LVA4 RALEIGH P&W II, LLC
TMW-2W D.B. 17571, PG. 1501
I 1 TMW-2S B. M. 2019 PG. 913 SG-5©
P.I.N.: 1704-51-2232
I /
I /
I /
I I /
I /
I /
J � /
I /
I /
j Q B-10s i
j Q 8-9S
SURVEY CERTIFICATE
1, MARSHALL G. WIGHT, CERTIFY THAT THIS PLAT WAS DRAWN UNDER MY
SUPERVISION FROM AN ACTUAL SURVEY MADE UNDER MY SUPERVISION
USING THE REFERENCES SHOWN HEREON; THAT THE BOUNDARIES NOT I I TMW-2 BUILDING CORNER TO /
SURVEYED ARE CLEARLY INDICATED AS DRAWN FROM INFORMATION FOUND BUILDING CORNER TO I 1!C0
PROPERTY LINE /
IN THE REFERENCES SHOWN HEREON; THAT THE RATIO OF PRECISION OR I PROPERTY LINE I OLUMN COLUM P ® COLUMN o N 0.10 / VPOSITIONAL ACCURACY AS CALCULATED IS 1:92.000+; THAT THIS PLAT 0 07' Hc�Hl oHc ooLUMN o coLUMN o cowMN "IC / TIE TO PKNS
WAS PREPARED IN ACCORDANCE WITH G.S. 47-30 AS AMENDED. WITNESS oHc OHG oLUMN PKIkS N 8T52'26" W
MY ORIGINAL SIGNATURE, LICENSE NUMBER, AND SEAL THIS 9TH DAY OF 87'52'26" W 230.84' 2.09'
MAY, A.D. 2019. I �1ttD1WG PA�CIAC b BRW PKNS
30' AIR RlGH75 EASEMENT POSSIBLE BUILDING COLUMN AND TYPE OF PLAT D.B. lzzss, Pc. toes. RETA/N/NG WALL ENCROACHMENT /
I, MARSHALL G. WIGHT, PROFESSIONAL LAND SURVEYOR LICENSE NO.
L-5034, CERTIFY TO ONE OF THE FOLLOWING AS CHECKED BELOW, PROPERTY OWNER GRAPHIC GALE
LVA4 RALEIGH P&W LLC
D. THAT THE SURVEY IS OF ANOTHER CATEGORY, SUCH AS THE II, -
4321 LASSITER AT NORTH HILLS AVE 401 N HARRINGTON STREET O' 40' HO' 120'
® RECOMBINATION OF EXISTING PARCELS, A COURT -ORDERED SURVEY, STE 250 WEST CONDO
OR OTHER EXCEPTION TO THE DEFINITION OF SUBDIVISION; RALEIGH NC 27609-5782 D.B. 13265, PG. 191
P.I.N.: 1704.19-50-2819 1 INCH = 40 FEET
MARSHALL G. WIGHT, PROFESSIONAL LAND SURVEYOR L-5034 /
00000000000000p� REVISIONS: DATE: 6 10 19 EXHIBIT B TO THE NOTICE OF BROWNFIELDS PROPERTY -SURVEY PLAT
°°c°
PRELIMINARY PLAT SCALE: 1"=40' PROSPECTIVE DEVELOPER: WI<SMOI(EY HOLLOW, LLC, WI<SMOI<EY HOLLOW 2, LLC, WI<SMOI<EY HOLLOW 3,
NOT FOR CONVEYANCE, LLC, WI<SMOI(EY HOLLOW 4, LLC, PROJECT NO. 22062-18-092-SMOI(EY HOLLOW 2 010-
•
RECORDATION, OR SALE SURVEYED BY: IC OWNER: LVA4 RALEIGH P FJ W, LLC W i t h e rs Ra ve n e l
° DRAWN BY: MGW 500 N. WEST STREET El 421 HARRINGTON STREET, RALEIGH NC 27603
or 5034 �O o FORMER ADDRESSES: N. HARRINGTON STREET, AND 0, 506, 516, 520, AND 524 N. WEST STREET Engineers I Planners I Surveyors
0 -4-- 00 ���o o CHECI<£7 CLOSURE BY: MGW TOWNSHIP: RALEIGH COUNTY: WAKE STATE: NORTH CAROLINA 115 MacKenan Drive Cary, NC 27511 t: 919.469.3340 license #: C 0832
°oo9/pS000 �°°�\o O° CAD FILE: BF_19064 www.withersravenel.com
000o A LL Goo°° ZONE: IX-12 AND DX-12-SH P.I.N.: AS SHOWN SHEET 1 OF 2
°oa00000000 PROJECT NO: 02180483.00
K:\18\18-0480\180483-516 N West Street Mixed Use\Geomatics\Res-Com\-Drawings\BF-19064.dwg- Monday, August 12, 2019 9:49:05 AM - WIGHT, MARSHALL

SITE
VICINITY MAP NO SCALE
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):
Concentration
Groundwater
Sample
Date of
Exceeding
Standard
Contaminant
Location
Sampling
Standard
(µg/L)
( I-)
Benzene
TMW-21
1/20/2015
4.9
1
TMW-2W
3/20/2019
3.5
Cadmium
2
TMW-3W
3/20/2019
3.0
Iron
TMW-1W
3/20/2019
44,000
300
Manganese
TMW-1W
3/20/2019
3,600
50
C5-C8 Aliphatic Petroleum
TMW-2
1/20/2015
2,400
400
Hydrocarbons
J - Estimated value between the method detection limit and the laboratory reporting limit.
'Temporary monitoring well nomenclature used on the original Harrington Street BFA and that used for
this BFA is similar; the former refers to wells sampled in 2015 and the latter refers to separate well
locations and has the letter "W" at the end of the sample identifier.
SOIL
Soil contaminants in milligrams per kilogram (the equivalent of parts per million), the
screening levels for which are derived from the Preliminary Residential Health- Based Soil
Remediation Goals of the Inactive Hazardous Sites Branch of DEQ's Superfund Section
(February 2018 version):
Soil
Contaminant
Sample
Location
Depth (ft)
Date of
Sampling
p g
Concentratio
n Exceeding
Screening
Level
(mg/kg)
Residential
Screening
Level'
(mg/kg)
B-IS
1-2
3/20/2019
3.2
B-2S
1-2
3/20/2019
3.0
B-3S
2.5-4.5
3/20/2019
2.7
B-4S/Du
2.5-4.5
3/20/2019
4.2/2.3
B-5S
2.5-4.5
3/20/2019
2.1
B-6S
3-5
3/20/2019
1.9
Arsenic'-
B-7S
3-5
3/20/2019
1.4
0.68
B-8S
5-7
3/20/2019
1.8
B-9S
5-7
3/20/2019
1.6
B-10S
4-6
3/20/2019
1.2
TMW-IS
5-6
3/20/2019
1.8
TMW-2S
5-6
3/20/2019
1.9
TMW-3S
5-6
3/20/2019
2.1
Benzo a rene
B-6S
3-5
3/20/2019
OAli
0.11
Phenanthrene
B-6S
3-5
3/20/2019
0.74
NS3
'Screening levels 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.
AArsenic concentrations in soil exceed the residential screening level for arsenic, but concentrations are
consistent with common background concentrations in NC soil.
'NS -No screening level established
SUB -SLAB VAPOR
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):
Sub -Slab Vapor
Contaminant
Sample
Location
Date of Sampling
Concentration
Exceeding
Screening Level
(gg/m)
Residential
Screening
Level
/m3
1,3-Dichlorobenzene
SG-1
3/19/2019
0.96J
NS
SG-2/Du
3/19/2019
1.7/1.8
SG-3
3/19/2019
1.9
SG-5
3/19/2019
1.7
Ethanol
SG-1
3/19/2019
200
NS
SG-2/Du
3/19/2019
13J/13J
SG-3
3/19/2019
14J
SG-4
3/19/2019
140
SG-5
3/19/2019
25
Trichlorofluoromethane
SG-1
3/19/2019
4.8
NS
SG-2/Du
3/19/2019
2.4J/2.5J
SG-3
3/19/2019
12
SG-4
3/19/2019
3,100
SG-5
3/19/2019
3.OJ
'Screening 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.
Sub -slab vapor samples were collected beneath foundations for buildings that were demolished in 2019 or
under asphalt parking surfaces.
J - estimated value between the method detection limit and the laboratory reporting limit
NS - No screening level established
SURVEY CERTIFICATE
I, MARSHALL G. WIGHT, CERTIFY THAT THIS PLAT WAS DRAWN UNDER MY
SUPERVISION FROM AN ACTUAL SURVEY MADE UNDER MY SUPERVISION
USING THE REFERENCES SHOWN HEREON; THAT THE BOUNDARIES NOT
SURVEYED ARE CLEARLY INDICATED AS DRAWN FROM INFORMATION FOUND
IN THE REFERENCES SHOWN HEREON; THAT THE RATIO OF PRECISION OR
POSITIONAL ACCURACY AS CALCULATED IS 1:92.000+; THAT THIS PLAT
WAS PREPARED IN ACCORDANCE WITH G.S. 47-30 AS AMENDED. WITNESS
MY ORIGINAL SIGNATURE, LICENSE NUMBER, AND SEAL THIS 12TH DAY OF
JUNE, A.D. 2019.
TYPE OF PLAT
LAND USE RESTRICTIONS
NCGS 130A-310.35(a) requires recordation of a Notice of Brownfields Property (`Notice') that identifies any restrictions on the current and future use of a Brownfields Property that are necessary or
useful to maintain the level of protection appropriate for the designated current or future use of the property and that are designated in a Brownfields Agreement pertaining to the property. This
survey plat constitutes one of three exhibits to the Notice pertaining to the Brownfields Property depicted on this plat and recorded at the Wake County Register of Deeds' office. The exhibits to the
Notice are: the Brownfields Agreement for the subject property, which is attached as Exhibit A to the Notice, a reduced version of this survey plat, which is attached as Exhibit B to the Notice; and a
legal description for the subject property, which is attached as Exhibit C to the Notice. The land use restrictions below have been excerpted verbatim from paragraph 15 of the Brownfields Agreement,
and all paragraph letters/numbers are the same as those used in the Brownfields Agreement. The following Land Use Restrictions are hereby imposed on the Brownfields Property and shall remain in
force in perpetuity unless canceled by the Secretary of the North Carolina Department of Environmental Quality (or its successor in function), or his/her designee, after the hazards have been
eliminated, pursuant to NCGS § 130A-310.35(e):
a. No use may be made of the Brownfields Property other than office, retail, high -density residential, and associated recreational space and parking, and subject to DEQ's prior written
approval, other commercial uses. For purposes of this restriction, the following definitions apply:
i. "Office" is defined as the provision of business or professional services;
ii. "Retail" is defined as the sale ofgoods or services, products, or merchandise directly to the consumer or businesses and includes showrooms, personal service, and the sales of
food, beverage and consumer products, although drycleaning operations that use chlorinated solvents are specifically prohibited;
iii. `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. Single family homes are prohibited, and townhomes, duplexes, or other units with yards are
prohibited unless approved in writing by DEQ in advance;
iv. "Recreational space" is defined as courtyards and indoor exercise -related, physically focused, or leisure -related activities, whether active or passive, and the facilities for same,
V. `Parking" is defined as the temporary accommodation ofmotor vehicles in an area designed for same; and
vi. "Commercial" is defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee.
b. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an Environmental Management Plan C 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.
C. Within 90 days after each one-year anniversary of the effective date of this Agreement for as long as physical redevelopment of the Brownfields Property continues (except that the final
deadline shall fall 90 days after the conclusion ofphysical 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 land use restrictions in this Section;
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 ofall legally required manifests
shall be included).
d. Unless compliance with this Land Use Restriction is waived in writing in advance by DEQ in relation to particular buildings, demolition and/or renovation ofany or all buildings on the
Brownflelds Property depicted on the plat component of the Notice referenced in paragraph 20 below shall be in accordance with applicable legal requirements, including without limitation those
related to lead and asbestos abatement that are administered by the Health Hazards Control Unit within the Division of Public Health of the North Carolina Department of Health and Human Services.
e. Groundwater at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ.
f. 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 above in subparagraph 15.a. while fully protecting public health and the
environment, except:
L 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 a DEQ-approved Environmental Management Plan (EMP) as outlined above in subparagraph 15.b.
g. 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 in Paragraph 15.b.
h. 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 forpurposes of conducting such assessment or remediation, which is to be conducted using reasonable efforts to minimize
interference with authorized uses of the Brownflelds Property.
i. 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 Wake 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 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 paragraph: (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 paragraph, 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.
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 Brownflelds 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 constituents ofproducts and materials customarily used and stored in office, parking, retail, and high -density residential settings, provided such products and materials are stored in
original retail packaging and used and disposed of in accordance with applicable laws; and
iii. as constituents of fuels, lubricants and oils in emergency generators, machinery, equipment and vehicles in on -board tanks integral to said equipment or in flammable liquid storage
containers totaling no more than 25 gallons.
k. The Brownfields Property may not be used as a playground, or for child care centers or schools, without the prior written approval of DEQ.
1. 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 contactors, 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.
in. During January of each year after the year in which the Notice referenced below in paragraph 20 is recorded, the owner of anypart 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 Wake County, certifying that, as of said January 1st, the
Notice of Brownfields Property containing these land use restrictions remains recorded at the Wake County Register of Deeds office and that the land use restrictions are being complied with. The
submitted LURU shall state the following:
L the name, mailing address, telephone and facsimile numbers, and contact person's e-mail address of the owner, or board, association or approved entity submitting the LURU if said owner
(or each of the owners on whose behalf the joint LURU is submitted) acquired any part of the Brownfields Property during the previous calendar year; and
ii. the transferee's name, mailing address, telephone and facsimile numbers, and contact person's e-mail address, if said owner (or each of the owners on whose behalf the joint LURU is
submitted) transferred any part of the Brownfields Property during the previous calendar year.
n. A property owners' association or other entity may perform this LURU's duties, on behalf of some or all owners of the Brownfields Property, if said association or entity has accepted
responsibility for such performance pursuant to a notarized instrument satisfactory to DEQ that includes at a minimum, the name, mailing address, telephone and facsimile numbers, and e-mail address
of each owner on whose behalf the LURU is proposed to be submitted.
o. 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.
A A LURU submitted for rental units shall include the rent roll and enough of each lease entered into during the previous calendar year to demonstrate compliance with lessee notification
requirements in paragraphs 21 and 22 of this agreement provided that if standard form leases are used in every instance, a copy of such standard form lease may be sent in lieu of copies of actual
leases.
It:ir,TT72K%A 7_F3i4
FOR THE PURPOSES OF N.C.G.S. 130A-310.35
1, MARSHALL G. WIGHT, PROFESSIONAL LAND SURVEYOR LICENSE NO. ELLEN LORSCHEIDER, DEPUTY DIRECTOR DATE
L-5034, CERTIFY TO ONE OF THE FOLLOWING AS CHECKED BELOW, DIVISION OF WASTE MANAGEMENT GRAPHIC SCALE
STATE OF NORTH CAROLINA
O' 40' HO' 120'
®D THAT THE IS OF ANOTHER SUCH AS THE WAKE COUNTY
OF EXISTING PARCELS, ACATEGORY,
RECOMBINATIONRVEY
COURT -ORDERED SURVEY
OR OTHER EXCEPTION TO THE DEFINITION OF SUBDIVISION;
I INCH = 40 FEET
MARSHALL G. WIGHT, PROFESSIONAL LAND SURVEYOR L-5034
REVISIONS:
DATE:6-10-19
EXHIBIT B TO THE NOTICE OF BROWNFIELDS PROPERTY - SURVEY PLAT
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SCALE:1°=40'
OWNER & PROSPECTIVE DEVELOPER: WI< HARRINGTON, LLC
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BROWNFIELDS PROJECT NO. 22062-18-092 - SMOKEY HOLLOW II
I/ WithersRavenel
SURVEYED
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WI< HARRINGTON, LLC SITE
DRAWN BY: MGW
e PRELIMINARY PLAT
500 N. WEST STREET & 421 HARRINGTON STREET, RALEIGH INC 27603
Engineers I Planners I Surveyors
NOT FOR CONVEYANCE
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RECORDATION, OR SALE
CHECK & CLOSURE BY: MGW
TOWNSHIP: RALEIGH
COUNTY: WAKE
STATE: NORTH CAROLINA
115 MacKenan Drive I Cary, NC 275111 t: 919.469.3340 1 license #: C-0832
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CAD FILE: BF-19064
www.withersravenel.com
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ZONE: IX-12 AND DX-12-SH
P.I.N.: AS SHOWN SHEET 2 OF 2
PROJECT NO: 02180483.00
K:\18\18-0480\180483-516 N West Street Mixed Use\Geomatics\Res-Com\-Drawings\BF-19064.dwg- Monday, August 12, 2019 9:49:22 AM - WIGHT, MARSHALL

Exhibit C
Beginning at a new PK Nail on the eastern right of way of N West Street (Variable Width Public
R/W) , said nail being North 60' 12'25" East 6,192.80 feet from NCGS Survey Monument
"PULLEN", said monument having NC grid coordinates (NAD 83 - 2001) of N=738,465.25,
E=2,099,765.94, and a combined grid factor of 0.99990485, thence from said beginning point
with said right of way South 87°20'59" East 4.39 feet to a new PK nail, thence North 01°55'34"
East 33.31 feet to an existing iron pipe on the southern right of way of W Johnson Street (73'
Public R/W), thence leaving N West St right of way and with W Johnson St right of way South
8731'41" East 66.91 feet to a point, thence South 71°49'40" East 47.50 feet to a point, thence
South 71°49'35" East 2.12 feet to a point, thence along a curve to the left having a radius of
286.53 feet, an arc length of 79.29 feet, and a chord bearing and distance of South 79°52'23"
East 79.03 feet to a point, thence South 88°33'34" East 56.07 feet to a point, thence along a curve
to the right having a radius of 12.00 feet, an arc length of 16.95 feet, and a chord bearing and
distance of South 48°07'16" East 15.58 feet to a point, thence South 87°41'55" East 1.78 feet to
an existing PK nail, thence South 87°41'55" East 5.44 feet to an existing PK nail on the western
right of way of N Harrington St (70' Public R/W), thence leaving W Johnson St right of way and
with N Harrington St right of way South 02°05'58" West 233.72 feet to a point, thence South
02°05'58" West 22.65 feet to a point, thence South 02°05'58" West 27.57 feet to a point, thence
South 02°05'58" West 78.60 feet to a point, thence along a curve to the right having a radius of
334.55 feet, an arc length of 20.71 feet, and a chord bearing and distance of South 03°48'18"
West 20.71 feet to a point, thence along a curve to the right having a radius of 364.10 feet, an arc
length of 104.66 feet, and a chord bearing and distance of South 13°48'00" West 104.30 feet to a
point, thence South 22°06'26" West 36.67 feet to a point, thence along a curve to the left having
a radius of 460.89 feet, an arc length of 25.63 feet, and a chord bearing and distance of South
20°26'43" West 25.62 feet to a new PK nail, thence leaving said right of way North 87°52'26"
West 230.84 feet to a point on eastern right of way N West Street (Variable Width Public R/W),
thence with said right of way North 01'59' 19" East 132.91 feet to a point, thence North
02°06'51" East 235.28 feet to a point, thence North 02°25'47" East 177.13 feet to the point and
place of beginning containing 3.469 acres (151,137 sq ft) more or less.
Smokey Hollow 2/22062-18-092/06Aug2019