19005_Nu Tread II_Recorded NBP_20181004

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FOR REGISTRATION
Sharon A. Davis
REGISTER OF DEEDS
Durham County, NO
2018 Oct 04 09:40:39 AM
BK:8521 PG:221-264
NOTICE
FEE: $142.00
INSTRUMENT # 2018034902
APRILJ
1111111 it 11111111111
2018034902
NOTICE OF BROWNFIELDS PROPERTY
Prepared by and return to:
Stephen Parascandola, Esq.
Smith Anderson Law Firm
Preparer is a validly licensed attorney or validly existing law firm in this State or another
jurisdiction within the United States
P. O. Box 2611
Raleigh, North Carolina 27602-26.11

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Property Owner: BH-AG Durham Foster, LLC
Recorded in BookjQs Page Gam-! 34/6 —
Associated plat recorded in PlatBook/fj , Page�34 7
NOTICE OF BROWNFIELDS PROPERTY
Site Name: Nu -Tread Tire II
Brownfields Project Number: 19005-15-032
This documentary component of a Notice of Brownfields Property ("Notice"), as well
as the plat component, have been filed this AY' day of 2016 by BH-
AG Durham Foster, LLC ("Prospective Developer").
This Notice concerns contaminated property.
A copy of this Notice certified by the North Carolina Department of Environmental
Quality ("DEQ") is required to be filed in the Register of Deeds' Office in the county or
counties in which the land is located, pursuant to North Carolina General Statutes
("NCGS"), § 130A-310.35(b).
This Notice is required by NCGS § 130A-310.35(a), in order to reduce or eliminate
the danger to public health or the environment posed by environmental contamination at a
property ("Brownfields Property") being addressed under the Brownfields Property Reuse
Act of 1997, NCGS § 130A, Article 9, Part 5 ("Act").
This Brownfields Property includes one previously recorded Notice of Brownfields
Property:
On January 23, 2012, a Notice of Brownfields Property (NBP) between Durham
CREDO-1, LLC and DENR (predecessor agency to DEQ) for the 545 Foster Street Property
(BF Project Number 10045-06-32, Former Nu -Tread Tire Co. Site) was recorded at the
Durham County Register of Deeds, Book 6888 Pages 242-273 and Plat Map, Book 188 Pages
389 & 391. This NBP was revised on March 28, 2013 as recorded in the Durham County
Register of Deeds, Book 7225 Pages 40-72 and Plat Map Book 188 Pages 389 & 391.
This Notice only applies to the Brownfields Property as defined on the plat map
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attached hereto as Exhibit B. The above -referenced January 23, 2012 Notice (Book 6888,
Pages 242-273 and Plat Map Book 188, Pages 389 & 391) and March 28, 2013 Notice (Book
7225, Pages 40-72 and Plat Map Book 188, Pages 389 & 391) shall immediately be
SUPERSEDED upon the filing of this Notice of Brownfields Property.
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 comprises one parcel totaling 1.043 acres with Tax ID 104938
as re -platted and recorded in the Durham County Register of Deeds on May 3, 2018 (Book 199,
Page 26), and which was formerly comprised of three parcels with Tax IDs 104939, 104942, and
104938. Prospective Developer has committed itself to redevelopment for no uses other than high -
density residential, retail, and associated amenity space and parking uses, 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 one or more data tables reflecting the
concentrations of and other information regarding the Property's regulated substances and
contaminants.
Attached as Exhibit B to this Notice is a reduction, to 8 1/2" x 11 ", of the survey
plat component of this Notice. This plat shows areas designated by DEQ, has been
prepared and certified by a professional land surveyor, meets the requirements of NCGS §
47-30, and complies with NCGS § 130A-310.35(a)'s requirement that the Notice identify:
(1) The location and dimensions of the areas of potential environmental concern with
respect to permanently surveyed benchmarks.
(2) The type, location and quantity of regulated substances and contaminants known to
exist on the Brownfields Property.
Attached hereto as Exhibit C is a legal description of the Brownfields Property that would
be sufficient as a description of the property in an instrument of conveyance.
LAND USE RESTRICTIONS
NCGS § 130A-310.35(a) also requires that the Notice identify any restrictions on the
current and future use of the Brownfields Property that are necessary or useful to maintain the
level of protection appropriate for the designated current or future use of the Brownfields Property
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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 the Brownfields Agreement, and all
paragraph 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 for high -density
residential, retail, and associated amenity space and parking uses, and subject to DEQ's prior
written approval, other commercial uses. For purposes of this restriction, the following definitions
apply:
i. "High -density residential" is defined as permanent dwellings where
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 (e.g., privately -owned
courtyards are prohibited), and shall include related amenities, such as pools, clubhouses,
courtyards, common areas, recreation areas and parking garages.
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 and beverage products. Retail use involving drycleaners using chlorinated
solvents or other uses involving chlorinated solvents are prohibited.
iii. "Amenity space" is defined as a hardscaped and landscaped courtyard,
swimming pool, pool deck, courtyard, dog run, community gardens, fire pit, grilling station,
seating areas, and a common use interior clubhouse. Any such feature shall not disturb native soil
at the Brownfields Property without prior approval from DEQ.
iv. "Courtyard" is defined as a landscaped or hardscaped area for residents'
use for leisure activities. Any such feature shall not disturb native soil at the Property without
prior approval from DEQ.
v. "Dog Run" is defined as an enclosed area designed to allow freedom of
movement and a play area for residents' dogs. Any such feature shall not disturb native soil at the
Property without prior approval from DEQ.
vi. "Parking" is defined as the temporary accommodation of motor vehicles
in an area designed for same.
vii. "Commercial" is defined as an enterprise carried on for profit or
nonprofit by the owner, lessee, or licensee.
viii. "Recreation" is defined as indoor and outdoor -related, physically
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focused, or leisure -related activities, whether active or passive, and the facilities for same,
including, but not limited to, studios, swimming pools, sports -related courts and fields, open space,
greenways, parks, playgrounds, walking paths, and picnic gathering areas.
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
paragraph 8 above;
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 groundwater and contaminated soils excavated during redevelopment.
c. By January 31 st 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 Section V:
Work to be Performed above;
ii. soil grading and cut and fill actions;
iii. methodology(ies) employed for field screening, sampling and laboratory
analysis of environmental media;
iv. stockpiling, containerizing, decontaminating, treating, handling,
laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected
or confirmed to be contaminated with regulated substances; and
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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. Soil may not be removed from, or brought onto, the 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 subparagraph 15.b. above.
e. Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
f. 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.
g. Within 60 days after the effective date of this Agreement or prior to land
disturbance activities, Prospective Developer shall abandon all monitoring wells, injection wells,
recovery wells, piezometers and other man-made points of groundwater access at the Brownfields
Property in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative
Code, unless an alternate schedule is approved by DEQ. Within 30 days after doing so, the
Prospective Developer shall provide DEQ a report, setting forth the procedures and results.
h. After the work referenced in subparagraph 15.g. above has been completed, the
owner of any portion of the Brownfields Property, where any 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.
i. Neither DEQ, nor any party conducting environmental assessment or remediation
at the Brownfields Property at the direction of, or pursuant to a permit, order or agreement issued
or entered into by DEQ, may be denied access to the Brownfields Property for purposes of
conducting such assessment or remediation, which is to be conducted using reasonable efforts to
minimize interference with authorized uses of the Brownfields Property.
j. 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 Durham 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
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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.
k. None of the contaminants known to be present in the environmental media at
the Brownfields Property, as described in paragraph 8 above, and as modified by DEQ in writing
if additional contaminants in excess of applicable standards are discovered at the Brownfields
Property, may be used or stored at the Brownfields Property without the prior written approval of
DEQ, except:
i. in de minimis quantities for cleaning and other routine housekeeping and
maintenance activities;
ii. as 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; or
iii. as constituents of products and materials customarily used and stored in
high -density residential, retail, and associated amenity space and parking environments, provided
such products and materials are stored in original retail packaging and used and disposed of in
accordance with applicable laws.
1. 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 l st
of that year shall submit a notarized Land Use Restrictions Update ("LURU") to DEQ, and to the
chief public health and environmental officials of Durham County, certifying that, as of said
January 1st, the Notice of Brownfields Property containing these land use restrictions remains
recorded at the Durham County Register of Deeds office and that the land use restrictions are being
complied with. The submitted LURU shall state the following:
i. the name, mailing address, telephone and facsimile numbers, and contact
person's e-mail address of the owner submitting the LURU if said owner acquired any part of the
Brownfields Property during the previous calendar year;
ii. the transferee's name, mailing address, telephone and facsimile numbers,
and contact person's e-mail address, if said owner transferred any part of the Brownfields Property
during the previous calendar year.
in. 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
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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.
The above land use restrictions shall be enforceable without regard to lack of privity of
estate or contract, lack of benefit to particular land, or lack of any property interest in particular
land. The land use restrictions shall be enforced by any owner of the Brownfields Property. The
land use restrictions may also be enforced by DEQ through the remedies provided in NCGS §
130A, Article 1, Part 2 or by means of a civil action; by any unit of local government having
jurisdiction over any part of the Brownfields Property; and by any person eligible for liability
protection under the Brownfields Property Reuse Act who will lose liability protection if the
restrictions are violated. Any attempt to cancel any or all of this Notice without the approval of the
Secretary of DEQ (or its successor in function), or his/her delegate, shall be subject to enforcement
by DEQ to the full extent of the law. Failure by any party required or authorized to enforce any
of the above restrictions shall in no event be deemed a waiver of the right to do so thereafter as to
the same violation or as to one occurring prior or subsequent thereto.
FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS
When any portion of the Brownfields Property is sold, leased, conveyed or transferred,
pursuant to NCGS § 130A-310.35(d) the deed or other instrument of transfer shall contain in the
description section, in no smaller type than that used in the body of the deed or instrument, a
statement that the Brownfields Property has been classified and, if appropriate, cleaned up as a
brownfields property under the Brownfields Property Reuse Act.
[the balance of this page 7 is intentionally left blank]
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IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly
executed this day of Qom ► - , 201 a .
BH-AG Durham Foster, LLC
By: Blue Heon Asset 14anagement�/LLC, its
NORTH CAROLINA
..a 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 theapacity indicated: o�-`�Icp Wcve I NQSA4-
Date: Q 12-O s G-
Official Signature of Notary
SA W,
1,Oltil,�
Notary's printed or typed name, Notary Public
i �• a =
My commission expires: 04'is �zn��
., ,. G, \
��NTYU``a\\\\���,
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APPROVAL AND CERTIFICATION OF NORTH CAROLMA
DEPARTMENT OF ENVIRONMENTAL QUALITY
The foregoing Notice of Brownfields Property is hereby approved and certified.
North Carolina Department of Environmental Quality
By: 9 i as /e
Mic ael E. Scott J bate
Director, Division of Waste Management
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EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: BH-AG Durham Foster, LLC
UNDER THE AUTHORITY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, NCGS § 130A-310.30, et SeMc .
Brownfields Project # 19005-15-032
I. INTRODUCTION
BROWNFIELDS AGREEMENT re:
Nu -Tread Tire II
539 & 545 Foster Street
Durham, Durham County
This Brownfields Agreement ("Agreement") is entered into by the North Carolina
Department of Environmental Quality ("DEQ") and BH-AG Durham Foster, LLC (collectively
the "Parties") pursuant to the Brownfields Property Reuse Act of 1997, NCGS § 130A-310.30, et
seq. (the "Act") for the property located at 539 & 545 Foster Street (now addressed solely as 539
Foster Street) (the `Brownfields Property"). A map showing the location of the Brownfields
Property that is the subject of this Agreement is attached hereto as Exhibit 1.
The Prospective Developer is BH-AG Durham Foster, LLC, with its principal office
located at I I I I Haynes Street, Raleigh, North Carolina 27608. BH-AG Durham Foster, LLC is
manager -managed by Blue Heron Asset Management, LLC. The Prospective Developer desires
to redevelop the Property for high -density residential, retail, and associated amenity space and
parking uses, 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
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and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
potential liability of BH-AG Durham Foster, LLC for contaminants at the Brownfields Property.
The Parties agree that BH-AG Durham Foster, LLC's entry into this Agreement, and the
actions undertaken by BH-AG Durham Foster, LLC in accordance with the Agreement, do not
constitute an admission of any liability by BH-AG Durham Foster, LLC for contaminants at the
Brownfields Property. The resolution of this potential liability, in exchange for the benefit BH-
AG Durham Foster, LLC shall provide to DEQ, is in the public interest.
II. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement which are
defined in the Act or elsewhere in NCGS § 130A, Article 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
1. `Brownfields Property" shall mean the property which is the subject of this
Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. "Prospective Developer" shall mean BH-AG Durham Foster, LLC.
III. STATEMENT OF FACTS
3. The Brownfields Property comprises one parcel totaling 1.043 acres with Tax ID
104938 and the address 539 Foster Street. The Brownfields Property was formerly comprised of
three parcels with Tax IDs 104939, 104942, and 104938, and the addresses of 539 and 545
Foster Street. The northern most original parcel, with Tax ID 104938 addressed as 545 Foster
Street, is subject to a Brownfields Agreement (NCBP Number 10045-06-32, Project Name
Former Nu -Tread Tire Co. Site) that was originally recorded in the Durham County Register of
W
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Deeds on January 23, 2012 (Book 6888, Page 242) and revised on March 28, 2013 (Book 7225,
Page 40). The three parcels that comprise this Brownfields Property were recombined and
recorded as one parcel in the Durham County Register of Deeds on May 3, 2018 (Book 199,
Page 26).
4. The Brownfields Property is bordered to the north by West Corporation Street with
Accent Hardwood and the Durham Athletic Park beyond; to the east by Foster Street with an
apartment complex beyond; and to the south and west by the Durham Central Park.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the `Environmental Reports," regarding the Brownfields Property:
Report Title
Prepared by
Date
Phase I Environmental Site Assessment
Environmental
April 1998
Report, 539 Foster Street, Durham, NC
Investigations
Phase I Environmental Site Assessment for
uest,
TerraReal
Estate, Nu -Tread Tire Company Facility,
nv
Eiro
Environmental
May 2, 2006
545 Foster Street, Durham, NC (without
Consultants, PC
attachments
Letter Report of Environmental Services, 545
Mid -Atlantic
August 1, 2006
Foster Street, Durham, NC
Associates, Inc.
Phase I Limited Site Assessment Report,
Mid -Atlantic
Facility I.D. No. 0-015102, 545 Foster Street,
Associates, Inc.
January 4, 2007
Durham, NC
Notice of No Further Action, Nu -Tread Tire
Kennedy Covington
Company Facility, 545 Foster Street, Durham,
(provided by)
January 29, 2007
NC, Incident #33188
Notice of No Further Action, Nu -Tread Tire
NCDENR (now
Company Facility, 545 Foster Street, Durham,
NCDEQ)
February 1, 2007
NC, Facility # 0-015102
Notice of No Further Action, Nu -Tread Tire
Company Facility, 545 Foster Street, Durham,
Kennedy Covington
February 23, 2007
NC, UST Incident #33188
3
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Report Title
Prepared by
Date
Underground Drainpipe and Soil Excavation
/Disposal Report, Former Nu -Tread Tire
Piedmont Geologic,
August 15, 2007
Company Facility, 545 Foster Street, Durham,
P.C.
NC
Underground Drainpipe and Soil Excavation
/Disposal Report Addendum, Former Nu-
Piedmont Geologic,
June 16, 2008
Tread Tire Company Facility, 545 Foster
P.C.
Street, Durham, NC
Phase I Environmental Site Assessment
Piedmont Geologic,
December 7, 2009
Report, 539 Foster Street, Durham, NC
P.C.
Brownfields Agreement, Former Nu -Tread
Tire Company Facility, 545 Foster Street,
CREDO-1, LLC
January 23, 2012
Durham, NC
Phase I Environmental Site Assessment, New
Proctor
Tread Tire II Site, 539 Foster Street, Durham,
Environmental
July 14, 2016
NC
Services, Inc.
Limited Environmental Site Assessment
Proctor
Report, New Tread Tire II Site, 539 Foster
Environmental
August 20, 2016
Street, Durham, NC
Services, Inc.
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 single parcel of the Brownfields Property, 539 Foster Street (Tax ID
104938), formerly comprised of three parcels: 545 Foster Street (former and current tax ID
104938) and two parcels addressed as 539 Foster Street (former tax ID 104939 and 104942), is
currently owned by BH-AG Durham Foster, LLC. BH-AG Durham Foster, LLC purchased the
two parcels formerly used for parking and with a vacant building located at 539 Foster Street
from E.L. (Denny) Clark on June 1, 2015, and purchased the vacant lot located at 545 Foster
Street from Durham Credo-1, LLC on June 1, 2015. The three former parcels were combined
M
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and re -platted in May 2018, and recorded in the Durham County Register of Deeds on May 3,
2018 at Book 199 Page 26.
b. The Brownfields Property was primarily developed by 1913 with dwellings
fronting Corporation Street and Foster Street. By 1950, the dwellings had been demolished and a
filling station was developed near the northeast portion of the Brownfields Property. By 1979,
the filling station building was noted as an automotive repair shop and a commercial building
was developed in the central portion of the Brownfields Property.
c. The former filling station and automotive repair building on the northern
portion of the Brownfields Property was used by Nu -Tread Tire Co., Inc. for changing heavy
truck tires from 1965 until mid-2006 when it was sold to E.L. (Denny) Clark and the building
was demolished. The northern portion of the Brownfields Property has been vacant and the
former parking lot at the northeast corner of the Brownfields Property has used for parking by
neighboring businesses since 2006.
d. The building in the central portion of the Brownfields Property was reportedly
constructed in the early 1960s and was occupied by Hutchinson Auto Supply from 1961 to 1963,
the Appliance & TV Center from 1963 to 1998, and C. N. Clark Company (Clark Printing) from
1998 to approximately 2009. The building was unoccupied at the time of purchase by the
Prospective Developer.
7. Pertinent environmental information regarding the Brownfields Property and
surrounding area includes the following:
a. The central and southern portion of the Brownfields Property (formerly and
�1
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currently recorded as 539 Foster Street):
i. One 2,000-gallon unregistered underground storage tank ("UST") was
reportedly removed from this portion of the Brownfields Property on December 16, 1993.
According to the DEQ UST Section database, this UST was installed on February 27, 1980 and
contained gasoline. This tank was registered with DEQ; however, documentation of its removal
was not submitted to DEQ. Soil samples collected from the suspected location of the former UST
in July 2016 did not exhibit petroleum constituents above their respective Preliminary
Residential Health -Based Remediation Goals.
ii. One or more USTs were removed from the vicinity of the southern
portion of the Brownfields Property that was used as a driveway for the south adjacent former
Tire King Facility in late 1997 or early 1998. Additional records or reports detailing the removal
of these UST(s) are not readily available.
b. The northern portion of the Brownfields Property (formerly 545 Foster Street):
i. Two 5,000-gallon USTs were installed on this portion of the
Brownfields Property in May 1945 and removed in October 1989. Reportedly, the USTs were
not used after 1965. The tanks were registered with DEQ's predecessor agency; however,
documentation of their removal was not submitted at that time. On January 16, 2007, a release
and cleanup of contamination associated with these two USTs was reported to the UST Section
and it was assigned Incident Number 33188.
ii. The northern portion of the Brownfields Property formerly contained a
one-story cinder block building with a sub -basement and crawl space. It was discovered in
G
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August 2006 that a release of petroleum hydrocarbons from an auto service bay drainpipe that
extended into the crawl space had contaminated soil under the building with Total Petroleum
Hydrocarbons such as Diesel -Range Organics, oil & grease, and other petroleum constituents.
iii. As a result of the soil contamination, building demolition and soil
remediation activities were conducted on the northern portion of the Brownfields Property in two
phases. The first phase of demolition was conducted in April 2007 and involved removal of only
the main level and west wall of the former building, which allowed the remaining portions of the
structure to function as retaining walls. The first phase of soil remediation was completed in July
2007 and involved removal of the former service bay drainpipe and 86.44 tons of contaminated
soil. Contaminated soil by the southwest corner of the former wall and the building's footing
could not be removed pending further demolition of the building. The remainder of the building
was demolished in May 2008. Soil remediation activities were completed on May 29, 2008 with
the excavation and off -site disposal of 35.76 tons of contaminated soil. Confirmatory soil
sampled was conducted during both excavation phases. The results of the post -excavation soil
sampling indicated no exceedances of standards.
iv. On February 8, 2007, a Notice of Residual Petroleum (NORP) was
filed with the Durham County Register of Deeds for the northern portion of the Brownfields
Property on February 8, 2007 (Book 5505, Page 193), which includes a land use restriction
prohibiting groundwater use. As referenced in paragraph 15 below, the recordation of the Notice
of Brownfields Property referenced in paragraph 20 below and this Brownfields Agreement will
legally supersede any remaining NORP or other land use restriction on the Brownfields Property.
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v. On January 23, 2012, a Notice of Brownfields Property (NBP) between
Durham CREDO-1, LLC and DENR (predecessor agency to DEQ) for the northern portion of
the Brownfields Property formerly addressed as 545 Foster Street with Tax ID 104938 (NCBP
Number 10045-06-32, Project Name Former Nu -Tread Tire Co. Site) was recorded at the
Durham County Register of Deeds Office (Book 6888, Page 242) and was revised on March 28,
2013 (Book 7225, Page 40). As referenced in paragraph 15 below, the recordation of the Notice
of Brownfields Property referenced in paragraph 20 below and this Brownfields Agreement will
legally supersede the original NBP
8. The most recent environmental sampling at the Brownfields Property reported in the
Environmental Reports occurred on July 13, 2016. The following tables set forth, for
contaminants present at the Brownfields Property above applicable 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 the purposes of this Agreement.
a. Groundwater contaminants in micrograms per liter (the equivalent of parts per
billion), the standards for which are contained in Title 15A of the North Carolina Administrative
Code, Subchapter 2L, Rule .0202(2L), (April 1, 2013 version) or the 2L Groundwater Interim
Maximum Allowable Concentrations (IMACS), (April 1, 2013 version):
Groundwater
Sample
Date of
Concentration
Standard
Exceeding
Contaminant
Location
Sampling
Standard L
(µg/L)
Lead
MW-1
11/28/2006
86.8
15
C9-C22 Aromatics
MW-1
11/28/2006
578
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b. 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 Remediation Goals of the Inactive Hazardous Sites Branch of DEQ's Superfund Section
(February 2018 version):
Concentration
Soil
Sample
Depth
Date of
Exceeding
Residential
Contaminant
Location
(ft)
Sampling
Screening
Level
Screening
Level (mg/kg)
m
SB-1
11 - 13
0.97
SB-2
0.80
SB-3
5-7
1.2
Arsenic
July 13, 2016
0.68
SB-4
1.2
SB-5
2.4
5 — 6
SB-6
1.3
'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.
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 January 22, 2015,
purchasing the property on June 1, 2015, preparing plans and specifications for the Brownfields
Property's redevelopment, and beginning redevelopment activities in June 2018..
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
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substantially complied with federal and state laws, regulations and rules for protection of the
environment, and with the other agreements and requirements cited at NCGS § 130A-
310.32(a)(1);
b. As a result of the implementation of this Agreement, the Brownfields Property
will be suitable for the uses specified in the Agreement while fully protecting public health and
the environment;
c. Prospective Developer's reuse of the Brownfields Property will produce a
public benefit commensurate with the liability protection provided Prospective Developer
hereunder;
d. Prospective Developer has or can obtain the financial, managerial and
technical means to fully implement this Agreement and assure the safe use of the Brownfields
Property; and
e. Prospective Developer has complied with all applicable procedural
requirements.
11. 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
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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. an increase in the Brownfields Property's productivity;
c. a spur to additional community investment and redevelopment, through
improved neighborhood appearance and otherwise;
d. an increase in tax revenue for affected jurisdictions;
e. additional residential space for the area; and
f. "smart growth" through use of land in an already developed area, which avoids
development of land beyond the urban fringe ("greenfields").
V. WORK TO BE PERFORMED
13. In redeveloping the Brownfields Property, Prospective Developer shall make
reasonable efforts to evaluate applying sustainability principles at the Brownfields Property,
using the nine (9) areas incorporated into the U.S. Green Building Council Leadership in Energy
and Environmental Design certification program (Sustainable Sites, Water Efficiency, Energy &
Atmosphere, Materials & Resources, Indoor Environmental Quality, Locations & Linkages,
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
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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 remediation to unrestricted
use standards. The Notice of Residual Petroleum, previously recorded pursuant to N.C. Gen.
Stat. § 143B-279.9 and N.C. Gen. Stat. § 143B-279.11 in the Durham County Register of Deeds,
Book 5505, Page 193, on February 8, 2007, shall immediately be SUPERSEDED upon the filing
of the Notice of Brownfields Property referenced below in paragraph 20 and this Brownfields
Agreement. The Notice of Brownfields Property, previously recorded pursuant to N.C. Gen.
Stat. § 130A-310. 30 et seq. in the Durham County Register of Deeds, Book 6888, Page 242 on
January 23, 2012, and revised Book 7225, Page 40, on March 28, 2013, shall immediately be
SUPERSEDED upon the filing of the Notice of Brownfields Property referenced below in
paragraph 20 and this Brownfields Agreement. All references to DEQ shall be understood to
include any successor in function.
a. No use may be made of the Brownfields Property other than for high -density
residential, retail, and associated amenity space and parking uses, and subject to DEQ's prior
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written approval, other commercial uses. For purposes of this restriction, the following
definitions apply:
i. "High -density residential" is defined as permanent dwellings where
residential units are attached to each other with common walls, such as condominia, apartments,
group homes, dormitories or boarding houses, and any property outside the dwelling structures is
usable by all residents and not privately owned as part of a particular unit (e.g., privately -owned
courtyards are prohibited), and shall include related amenities, such as pools, clubhouses,
courtyards, common areas, recreation areas and parking garages.
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 and beverage products. Retail use involving drycleaners using chlorinated
solvents or other uses involving chlorinated solvents are prohibited.
iii. "Amenity space" is defined as a hardscaped and landscaped courtyard,
swimming pool, pool deck, courtyard, dog run, community gardens, fire pit, grilling station,
seating areas, and a common use interior clubhouse. Any such feature shall not disturb native
soil at the Brownfields Property without prior approval from DEQ.
iv. "Courtyard" is defined as a landscaped or hardscaped area for
residents' use for leisure activities. Any such feature shall not disturb native soil at the Property
without prior approval from DEQ.
v. "Dog Run" is defined as an enclosed area designed to allow freedom of
movement and a play area for residents' dogs. Any such feature shall not disturb native soil at
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the Property without prior approval from DEQ.
vi. "Parking" is defined as the temporary accommodation of motor
vehicles in an area designed for same.
vii. "Commercial" is defined as an enterprise carried on for profit or
nonprofit by the owner, lessee, or licensee.
viii. "Recreation" is defined as indoor and outdoor -related, physically
focused, or leisure -related activities, whether active or passive, and the facilities for same,
including, but not limited to, studios, swimming pools, sports -related courts and fields, open
space, greenways, parks, playgrounds, walking paths, and picnic gathering areas.
b. Physical redevelopment of the Brownfields Property may not occur other than
in accord, as determined by DEQ, with an Environmental Management Plan ("BMP") 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
paragraph 8 above;
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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 groundwater and contaminated soils excavated during redevelopment.
c. By January 3 1 ' 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 Section
V: Work to be Performed above;
ii. soil grading and cut and fill actions;
iii. methodology(ies) employed for field screening, sampling and
laboratory analysis of environmental media;
iv. stockpiling, containerizing, decontaminating, treating, handling,
laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected
or confirmed to be contaminated with regulated substances; and
v. removal of any contaminated soil, water or other contaminated
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materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all
legally required manifests shall be included).
d. Soil may not be removed from, or brought onto, the 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 subparagraph 15.b. above.
e. Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
f. 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.
g. Within 60 days after the effective date of this Agreement or prior to land
disturbance activities, Prospective Developer shall abandon all monitoring wells, injection wells,
recovery wells, piezometers and other man-made points of groundwater access at the
Brownfields Property in accordance with Subchapter 2C of Title 15A of the North Carolina
Administrative Code, unless an alternate schedule is approved by DEQ. Within 30 days after
doing so, the Prospective Developer shall provide DEQ a report, setting forth the procedures and
results.
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h. After the work referenced in subparagraph 15.g. above has been completed, the
owner of any portion of the Brownfields Property, where any 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.
i. Neither DEQ, nor any party conducting environmental assessment or
remediation at the Brownfields Property at the direction of, or pursuant to a permit, order or
agreement issued or entered into by DEQ, may be denied access to the Brownfields Property for
purposes of conducting such assessment or remediation, which is to be conducted using
reasonable efforts to minimize interference with authorized uses of the Brownfields Property.
j. 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 Durham 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
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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.
k. None of the contaminants known to be present in the environmental media at
the Brownfields Property, as described in paragraph 8 above, and as modified by DEQ in writing
if additional contaminants in excess of applicable standards are discovered at the Brownfields
Property, may be used or stored at the Brownfields Property without the prior written approval of
DEQ, except:
i. in de minimis quantities for cleaning and other routine housekeeping and
maintenance activities;
ii. as 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; or
iii. as constituents of products and materials customarily used and stored
in high -density residential, retail, and associated amenity space and parking environments,
provided such products and materials are stored in original retail packaging and used and
disposed of in accordance with applicable laws.
1. 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 DEQ, and to the
chief public health and environmental officials of Durham County, certifying that, as of said
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January 1 st, the Notice of Brownfields Property containing these land use restrictions remains
recorded at the Durham County Register of Deeds office and that the land use restrictions are
being complied with. The submitted LURU shall state the following:
i. the name, mailing address, telephone and facsimile numbers, and contact
person's e-mail address of the owner submitting the LURU if said owner acquired any part of the
Brownfields Property during the previous calendar year;
ii. the transferee's name, mailing address, telephone and facsimile
numbers, and contact person's e-mail address, if said owner transferred any part of the
Brownfields Property during the previous calendar year.
m. 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.
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18. The consequence of achieving the desired results will be that the Brownfields
Property will be suitable for the uses specified in the Agreement while fully protecting public
health and the environment. The consequence of not achieving the desired results will be that
modifications to land use restrictions and/or remediation in some form may be necessary to fully
protect public health and/or the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
19. In addition to providing access to the Brownfields Property pursuant to subparagraph
15.i. above, Prospective Developer shall provide DEQ, its authorized officers, employees,
representatives, and all other persons performing response actions under DEQ oversight, access
at all reasonable times to other property controlled by Prospective Developer in connection with
the performance or oversight of any response actions at the Brownfields Property under
applicable law. Such access is to occur after prior notice and using reasonable efforts to
minimize interference with authorized uses of such other property except in response to
emergencies and/or imminent threats to public health and the environment. While Prospective
Developer owns the Brownfields Property, DEQ shall provide reasonable notice to Prospective
Developer of the timing of any response actions to be undertaken by or under the oversight of
DEQ at the Brownfields Property. Except as may be set forth in the Agreement, DEQ retains all
of its authorities and rights, including enforcement authorities related thereto, under the Act and
any other applicable statute or regulation, including any amendments thereto.
20. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields
Property for the Brownfields Property containing, inter alia, the land use restrictions set forth in
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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 Durham
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 Durham County land records, Book , Page ." A copy of any such
instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though
financial figures and other confidential information related to the conveyance may be redacted to
the extent said redactions comply with the confidentiality and trade secret provisions of the
North Carolina Public Records Law. Prospective Developer may use the following mechanisms
to comply with the obligations of this paragraph: (i) If every lease and rider is identical in form,
Prospective Developer may provide DEQ with copies of a form lease or rider evidencing
compliance with this paragraph, in lieu of sending copies of actual, executed leases, to the
persons listed in Section XV (Notices and Submissions); or (ii) Prospective Developer may
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provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section
XV.
22. The Prospective Developer shall ensure that a copy of this Agreement is provided to
any current lessee or sublessee on the Brownfields Property within seven days of the effective
date of this Agreement.
VII. DUE CARE/COOPERATION
23. The Prospective Developer shall exercise due care at the Brownfields Property with
respect to the manner in which regulated substances are handled at the Brownfields Property and
shall comply with all applicable local, State, and federal laws and regulations. The Prospective
Developer agrees to cooperate fully with any assessment or remediation of the Brownfields
Property by DEQ and further agrees not to interfere with any such assessment or remediation. In
the event the Prospective Developer becomes aware of any action or occurrence which causes or
threatens a release of contaminants at or from the Brownfields Property, the Prospective
Developer shall immediately take all appropriate action to prevent, abate, or minimize such
release or threat of release, shall comply with any applicable notification requirements under
NCGS § 130A-310.1 and 143-215.85, Section 103 of CERCLA, 42 USC § 9603, and/or any
other law, and shall immediately notify the DEQ Official referenced in paragraph 35.a. below of
any such required notification.
VIII. CERTIFICATION
24. By entering into this Agreement, the Prospective Developer certifies that, without
DEQ approval, it will make no use of the Brownfields Property other than that committed to in
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the Brownfields Property Application dated January 22, 2015, by which it applied for this
Agreement. That use is none other than for high -density residential, retail, and associated
amenity space and parking uses, and subject to DEQ's prior written approval, other commercial
uses. Prospective Developer also certifies that to the best of its knowledge and belief it has fully
and accurately disclosed to DEQ all information known to Prospective Developer and all
information in the possession or control of its officers, directors, employees, contractors and
agents which relates in any way to any past use of regulated substances or known contaminants
at the Brownfields Property and to its qualification for this Agreement, including the requirement
that it not have caused or contributed to the contamination at the Brownfields Property.
IX. DEQ'S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
25. Unless any of the following apply, Prospective Developer shall not be liable to DEQ,
and DEQ covenants not to sue Prospective Developer, for remediation of the Brownfields
Property except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the Brownfields Property by or under the control
or direction of the Prospective Developer increase the risk of harm to public health or the
environment, in which case Prospective Developer shall be liable for remediation of the areas of
the Brownfields Property, remediation of which is required by this Agreement, to the extent
necessary to eliminate such risk of harm to public health or the environment.
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
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Property, in which case the Prospective Developer shall be responsible for remediation of the
Brownfields Property to unrestricted use standards.
d. The Prospective Developer knowingly or recklessly provided false information
that formed a basis for this Agreement or knowingly or recklessly offers false information to
demonstrate compliance with this Agreement or fails to disclose relevant information about
contamination at the Brownfields Property.
e. New information indicates the existence of previously unreported
contaminants or an area of previously unreported contamination on or associated with the
Brownfields Property that has not been remediated to unrestricted use standards, unless this
Agreement is amended to include any previously unreported contaminants and any additional
areas of contamination. If this Agreement sets maximum concentrations for contaminants, and
new information indicates the existence of previously unreported areas of these contaminants,
further remediation shall be required only if the areas of previously unreported contaminants
raise the risk of the contamination to public health or the environment to a level less protective of
public health and the environment than that required by this Agreement.
f. The level of risk to public health or the environment from contaminants is
unacceptable at or in the vicinity of the Brownfields Property due to changes in exposure
conditions, including (i) a change in land use that increases the probability of exposure to
contaminants at or in the vicinity of the Brownfields Property or (ii) the failure of remediation to
mitigate risks to the extent required to make the Brownfields Property fully protective of public
health and the environment as planned in this Agreement.
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g. DEQ obtains new information about a contaminant associated with the
Brownfields Property or exposures at or around the Brownfields Property that raises the risk to
public health or the environment associated with the Brownfields Property beyond an acceptable
range and in a manner or to a degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under NCGS § 130A-310.35.
26. Except as may be provided herein, DEQ reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
27. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, NCGS § 113A-1, et SeMc .
28. Consistent with NCGS § 130A-310.33, the liability protections provided herein, and
any statutory limitations in paragraphs 25 through 27 above, apply to all of the persons listed in
NCGS § 130A-310.33, including future owners of the Brownfields Property, to the same extent
as Prospective Developer, so long as these persons are not otherwise potentially responsible
parties or parents, subsidiaries, or affiliates of potentially responsible parties.
X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
29. In consideration of DEQ's Covenant Not To Sue in Section IX of this Agreement
and in recognition of the absolute State immunity provided in NCGS § 130A-310.37(b), the
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
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action implementing the Act, including negotiating, entering, monitoring or enforcing this
Agreement or the above -referenced Notice of Brownfields Property.
XI. PARTIES BOUND
30. This Agreement shall apply to and be binding upon DEQ, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party's signatory to this
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
XII. DISCLAIMER
31. Prospective Developer and DEQ agree that this Agreement meets the requirements of
the Act, including but not limited to the requirements set forth in NCGS § 130A-310.32(a)(2).
However, this Agreement in no way constitutes a finding by DEQ as to the risks to public health
and the environment which may be posed by regulated substances at the Brownfields Property, a
representation by DEQ that the Brownfields Property is fit for any particular purpose, nor a
waiver of Prospective Developer's duty to seek applicable permits or of the provisions of NCGS
§ 130A-310.37.
32. Except for the land use restrictions set forth in paragraph 15 above and NCGS §
130A-310.33(a)(l)-(5)'s provision of the Act's liability protection to certain persons to the same
extent as to a prospective developer, no rights, benefits or obligations conferred or imposed upon
Prospective Developer under this Agreement are conferred or imposed upon any other person.
XIII. DOCUMENT RETENTION
33. The Prospective Developer agrees to retain and make available to DEQ all business
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and operating records, contracts, site studies and investigations, remediation reports, and
documents generated by and/or in the control of the Prospective Developer, its affiliates or
subsidiaries relating to storage, generation, use, disposal and management of regulated
substances at the Brownfields Property, including without limitation all Material Safety Data
Sheets or Safety Data Sheets, for six (6) years following the effective date of this Agreement,
unless otherwise agreed to in writing by the Parties. Said records may be retained electronically
such that they can be retrieved and submitted to DEQ upon request. At the end of six (6) years,
the Prospective Developer shall notify DEQ of the location of such documents and shall provide
DEQ with an opportunity to copy any documents at the expense of DEQ. By entering into this
Agreement, Prospective Developer waives no rights of confidentiality or privilege provided by
the North Carolina Public Records Act or otherwise and, at the time DEQ requests to copy or
inspect said documents, Prospective Developer shall provide DEQ with a log of documents
withheld from DEQ, including a specific description of the document(s) and the alleged legal
basis upon which they are being withheld. To the extent DEQ retains any copies of such
documents, Prospective Developer retains all rights it then may have to seek protection from
disclosure of such documents as confidential business information.
XIV. PAYMENT OF ENFORCEMENT COSTS
34. If the Prospective Developer fails to comply with the terms of this Agreement,
including, but not limited to, the provisions of Section V (Work to be Performed), it shall be
liable for all litigation and other enforcement costs incurred by DEQ to enforce this Agreement
or otherwise obtain compliance.
27
Nu -Tread II / 19005-15-032 (24/September/2018)

Book8521 - Page258 Page 38 of 44
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:
Kelly G. Johnson, P.G. (or successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Maurice Malfatti (or successor in function)
BH-AG Durham Foster, LLC
c/o Blue Heron Asset Management, LLC
1111 Haynes Street, Suite 203
Raleigh, North Carolina 27608
Notices and submissions sent by prepaid first class U.S. mail shall be effective on the third day
following postmarking. Notices and submissions sent by hand or by other means affording
written evidence of date of receipt shall be effective on such date.
XVI. EFFECTIVE DATE
36. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving the signed, conditionally approved Agreement from DEQ. DEQ's approval of
this Agreement is conditioned upon the complete and timely execution and filing of this
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
m
Nu -Tread II / 19005-15-032 (24/September/2018)

Book8521 - Page259 Page 39 of 44
the statutory deadline set forth in N.C.G.S. § 130A-310.35(b). If the Agreement is not signed by
Prospective Developer within 45 days after such receipt, DEQ has the right to revoke its
approval and certification of this Agreement, and invalidate its signature on this Agreement.
XVII. TERMINATION OF CERTAIN PROVISIONS
37. If any Party believes that any or all of the obligations under Section VI
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the
requirements of the Agreement, that Party may request in writing that the other Party agree to
terminate the provision(s) establishing such obligations; provided, however, that the provision(s)
in question shall continue in force unless and until the Party requesting such termination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CONTRIBUTION PROTECTION
38. With regard to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
claims to the extent provided by NCGS § 130A-310.37(a)(5)-(6). The subject matter of this
Agreement is all remediation taken or to be taken and response costs incurred or to be incurred
by DEQ or any other person in relation to the Brownfields Property.
39. The Prospective Developer agrees that, with respect to any suit or claim for
contribution brought by it in relation to the subject matter of this Agreement, it will notify DEQ
in writing no later than 60 days prior to the initiation of such suit or claim.
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
29
Nu -Tread II / 19005-15-032 (24/September/2018)

Book8521 - Page260 Page 40 of 44
DEQ in writing within 10 days of receiving said suit or claim.
XIX. PUBLIC COMMENT
41. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after the last of the following public notice tasks occurs: publication of the
approved summary of the Notice of Intent to Redevelop a Brownfields Property required by
NCGS § 130A-310.34 in a newspaper of general circulation serving the area in which the
Brownfields Property is located; conspicuous posting of a copy of said summary at the
Brownfields Property; and mailing or delivery of a copy of the summary to each owner of
property contiguous to the Brownfields Property. After expiration of that period, or following a
public meeting if DEQ holds one pursuant to NCGS § 130A-310.34(c), DEQ may modify or
withdraw its consent to this Agreement if comments received disclose facts or considerations
which indicate that this Agreement is inappropriate, improper or inadequate.
IT IS SO AGREED:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
By. 2�jjt'� ---/
Michat L Scott
Director, Division of Waste Management
IT IS SO AGREED:
BH-ACC Durham Foster. LLC
30
Nu -Tread II / 19005-15-032 (24/September/2018)

Book8521 - Page261 Page 41 of 44
Source: USGS 7.5 Minute Topographic Map Durham, Scale: 1:24,000
Figure 1 - Site Location Map North Carolina Quadrangle 2013
Site Name: New Tread Tire II
PROCTOR 539 and 545 Foster Street
PES
ENVIRONMENTAL, Durham, North Carolina
�,,.� SERVICES, INC. PES Project Number: R16-162
EXHIBIT 1

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Book8521 - Page264 Page 44 of 44
EXHIBIT C
LEGAL DESCRIPTION
NU -TREAD TIRE II
BROWNFIELDS PROJECT # 19005-15-032
Beginning at a Point at the intersection of the right of way of
the south side of Corporation Street and the western right of
way of Foster Street; thence S0202810011W a distance of 105.19,
to a point, thence S0204413111W a distance of 100.02' to a point;
thence S0202615411W a distance of 42.00' to a point; thence
N8703610011W a distance of 81.81' to a point; thence N8703610011W
a distance of 83.09' to a point; thence N8703610011W a distance
of 25.00' to a point; thence N0302510611E a distance of 42.00' to
a point; thence N03025'06"E a distance of 99.99' to a point;
thence N0302510611E a distance of 93.54' to a point; thence
N8804811011E a distance of 25.08' to a point; thence N8804811011E
a distance of 161.76' to a point; which is the point of
beginning, having an area of 45,418.61 square feet, or 1.043
acres.