19067_Gateway Plaza_PCPKG_20210127

NOTICE OF INTENT TO REDEVELOP A BR WNFIELDS PROPERTY
Brownfields Property Name: Gateway Plaza Shopping Center
Brownfields Project Number: 19067-15-092
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 abandoned, idled, or underused
properties at which expansion or redevelopment is hindered by actual or potential environmental contamination.
One of the Act's requirements is the submittal of this Notice of Intent to Redevelop a Brownfields Property ("NI")
that has been approved by the North Carolina Department of Environmental Quality ("DEQ") for public notification
purposes as per NCGS § 130A-310.34(a). The NI shall 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 ("NBP") prepared in accordance with NCGS § 130A-310.35. The proposed NBP for a
particular brownfields project is attached hereto. The proposed NBP includes the proposed Brownfields Agreement,
which is attached as Exhibit A, and the other required elements of this NI. A Summary of this Notice of Intent
("SNI") shall include a statement as to the public availability of the full NI. The party ("Prospective Developer")
who desires to enter into a Brownfields Agreement with DEQ must provide a full copy of this NI to all local
governments having jurisdiction over the Brownfields Property.
The Act requires a public comment period of at least 30 days. The first day of public comment is defined as
the day after which all of the following public notice tasks have occurred: the date the required SNI 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 public comments may be submitted to DEQ within 30 days after the public comment
period begins. Written requests for a public meeting may be submitted to DEQ within 21 days after the public
comment period begins. These periods will start no sooner than February 3, 2021, and will end no sooner than the
later of. 1) 30 and 21 days, respectively, after that; or 2) 30 and 21 days, respectively, after completion of the latest
of the three (3) above -referenced tasks, if such completion occurs later than the date stated herein. 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
Gateway Plaza/ 19067-15-092/27Jan2021
1

SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Brownfields Property Name: Gateway Plaza Shopping Center
Brownfields Project Number: 19067-15-092
Pursuant to the North Carolina Brownfields Property Reuse Act (the "Act") authorized by North Carolina
General Statutes (NCGS) § 130A-310.30 through 130A-310.40, and specifically pursuant to NCGS § 130A-
310.34, Elixir Retail Partners, LLC, as Prospective Developer, has filed with the North Carolina Department of
Environmental Quality ("DEQ") a Notice of Intent to Redevelop a Brownfields Property ("Property") located at
2409 Crabtree Boulevard, Raleigh, Wake County. The Brownfields Property, which is the former site of a
drycleaner within one of the units of the Gateway Plaza Shopping Center, consists of 6.68 acres. Environmental
contamination exists on the Brownfields Property in groundwater, soil, soil gas, sub -slab vapor, indoor air, and
surface water. Elixir Retail Partners, LLC has committed itself to redevelop the Brownfields Property for no uses
other than hotel, retail, restaurant, brewery, food production facility, office space, rental storage,
event/performance/exhibition space, and associated parking, and subject to DEQ's prior written approval, other
commercial uses, including childcare, drop -in childcare, educational spaces, or senior facility use, although use
of any existing building, or portion thereof, for childcare, drop -in childcare, schools, or senior facilities, or
occupancy of the Gateway Arts building, is prohibited unless the uses in the affected space are in compliance with
the provisions in subparagraph 151. of the Brownfields Agreement, although residential use of existing structures
is prohibited. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields
Agreement between DEQ and Elixir Retail Partners, LLC, which in turn includes (a) a map showing the location
of the Property, (b) a description of the contaminants involved and their concentrations in the media of the
Property, (c) the above -stated description of the intended future use of the Brownfields Property, and (d) proposed
investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with
NCGS § 130A-310.35.
The full Notice of Intent to Redevelop a Brownfields Property may be reviewed online at the DEQ public
record database, Laserfiche, by entering the project number 19067-15-092 into the search bar at the following web
address: h!Ws:Hedocs.deg.nc.gov/WasteManagement/Welcome.aspx?dbid=0&repo=WasteManagement.
The "Act" requires a public comment period of at least 30 days. The first day of public comment is defined
as the day after which all of the following public notice tasks have occurred: the date 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 public comments may be submitted to DEQ within 30 days after
the public comment period begins. Written requests for a public meeting may be submitted to DEQ within 21 days
after the public comment period begins. These periods will start no sooner than February 3, 2021, and will end
no sooner than the later of. 1) 30 and 21 days, respectively, after that; or 2) 30 and 21 days, respectively, after
completion of the latest of the three (3) above -referenced tasks, if such completion occurs later than the date stated
herein. All public comments and public 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
Gateway Plaza/ 19067-15-092/27Jan2021

EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: Elixir Retail Partners, LLC
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT ) Gateway Plaza Shopping Center
OF 1997, NCGS § 130A-310.30, et sue. ) 2409 Crabtree Boulevard
Brownfields Project #19067-15-092 ) Raleigh, Wake County
I. INTRODUCTION
This Brownfields Agreement ("Agreement") is entered into by the North Carolina
Department of Environmental Quality ("DEQ") and Elixir Retail Partners, 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 2409 Crabtree Boulevard, Raleigh Wake County (the
"Brownfields Property"). This property was formerly assigned the addresses of 2409-2431 (Odd
numbers) Crabtree Boulevard. A map showing the location of the Brownfields Property that is
the subject of this Agreement is attached hereto as Exhibit 1. It is currently occupied by the
Gateway Plaza Shopping Center, which consists of two commercial buildings, paved parking,
and landscaped areas.
The Prospective Developer is Elixir Retail Partners, LLC, a manager -managed North
Carolina limited liability company chartered on September 25, 2015. The managers of Elixir
Retail Partners, LLC are Seby Russell Jones, Michael G. Sandman, and Henry Ward. The
principal office of the company and that of Mr. Sandman is 7101 Creedmoor Road, Suite 142,
Raleigh, NC 27513, and the principal office for Mr. Jones and Mr. Ward is 821 Wake Forest
Road, Raleigh, North Carolina 27604. Subject to the limitations of paragraph 15 of this
Agreement, the Prospective Developer has committed to redevelopment of the Brownfields
Gateway Plaza/ 19067-15-092/08Jan2021

Property for no uses other than hotel, retail, restaurant, brewery, food production facility, office
space, rental storage, event/performance/exhibition space, high density residential, associated
parking, and subject to DEQ's prior written approval, other commercial uses, including
childcare, drop -in childcare, educational spaces, or senior facilities.
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 Elixir Retail Partners, LLC for contaminants at the property which is the
subject of this Agreement.
The Parties agree that Elixir Retail Partners, LLC's entry into this Agreement, and the
actions undertaken by Elixir Retail Partners, LLC in accordance with the Agreement, do not
constitute an admission of any liability by Elixir Retail Partners, LLC.
The resolution of this potential liability, in exchange for the benefit Elixir Retail Partners,
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 Elixir Retail Partners, LLC.
W
Gateway Plaza/ 19067-15-092/08Jan2021

III. STATEMENT OF FACTS
3. The Brownfields Property comprises one parcel totaling 6.68 acres (PIN 1714-48-
5236). The current address for the Brownfields Property for Wake County tax purposes is 2409
Crabtree Boulevard; however, each of the individual tenant spaces were formerly assigned the
following addresses from east to west: 2409, 2411, 2413, 2415, 2417, 2419, 2421, 2423, 2425,
2427, and 2431 Crabtree Boulevard. Those addresses have been reassigned to address 2409
Crabtree Boulevard, with a unique suffix for individual units.
4. The Brownfields Property is located just north of downtown Raleigh, and is bordered
to the north by Crabtree Boulevard, with commercial properties and a tributary to Crabtree Creek
named Pigeon House Branch beyond; to the northwest and west by Pigeon House Branch, with
commercial properties including a Bank of America building, the Greyhound Bus Station, a
muffler shop and Capital Boulevard beyond; to the southwest and south by a food distribution
facility owned and operated by the Food Bank of Central and Eastern NC, Inc.; to the south by
single family residential properties; and to the east by the Greater Love Church with Timber
Drive and commercial office space beyond.
5. Prospective Developer obtained or commissioned, or DWM had access in their
regulatory files to the following reports, referred to hereinafter as the "Environmental Reports,"
regarding the Brownfields Property:
Title
Prepared by
Date of Report
Phase I Environmental Site Assessment Report,
Gateway Plaza Shopping Center, Raleigh, Wake
DL Restoration, LLC
November 2002
County, NC
Asbestos Inspection — Gateway Plaza, Crabtree
DL Restoration, LLC
January 1, 2003
Boulevard, Raleigh, NC
Limited Soil & Ground Water Investigation,
Ed Aguirre &
January 6, 2003
Gateway Plaza/ 19067-15-092/08Jan2021

Title
Prepared by
Date of Report
Former Medlin Davis Dry Cleaning Facility
Associates, Inc.
Assessment Report, T & J Cleaners, Raleigh,
Earth Tech
December 17, 2003
Wake County, NC
Assessment Report & Prioritization Ranking, T
Earth Tech
January 14, 2004
& J Cleaners
MACTEC
Groundwater Sampling Results, T & J Cleaners
Engineering and
May 18, 2005
Consulting, Inc.
MACTEC
Report of Environmental Services, T&J Cleaners
Engineering and
January 6, 2006
Consulting, Inc.
MACTEC
Report of Environmental Services, T&J Cleaners
Engineering and
August 1, 2006
Consulting, Inc.
Report of Environmental Services, T & J
MACTEC
Engineering and
March 5, 2007
Cleaners
Consulting, Inc.
Report of Environmental Services, T & J
MACTEC
Engineering and
June 30, 2008
Cleaners
Consulting, Inc.
Letter Report of Environmental Services, August
MACTEC
Engineering and
December 5, 2008
Sampling Event, T & J Cleaners
Consulting, Inc.
Letter Report of Environmental Services,
MACTEC
Engineering and
December 5, 2008
October Sampling Event T&J Cleaners
Consulting, Inc.
Report of Environmental Services, T&J
MACTEC
Engineering and
December 8, 2008
Cleaners, DSCA ID #92-0021
Consulting, Inc.
MACTEC
Report of Environmental Services, T&J Cleaners
Engineering and
January 7, 2009
Consulting, Inc.
Letter Report of Environmental Services,
MACTEC
Engineering and
February 17, 2009
December Sampling Event, T & J Cleaners
Consulting, Inc.
Report of Environmental Services, T & J
MACTEC
Engineering and
February 24, 2009
Cleaners, DSCA ID #92-0021
Consulting, Inc.
Report of Environmental Services, T & J
MACTEC
Engineering and
May 27, 2009
Cleaners, DSCA ID #92-0021
Consulting, Inc.
Gateway Plaza/ 19067-15-092/08Jan2021

Title
Prepared by
Date of Report
Air Quality Evaluation Results, T & J Cleaners,
URS Corporation
March 8, 2011
DSCA Site ID #92-0021
Report Forms for NC DSCA Program
URS Corporation
March 28, 2011
Analytical Data Tables or NC DSCA Program
URS Corporation
August 28, 2012
Air Quality Evaluation Results, T & J Cleaners,
URS Corporation
January 22, 2013
DSCA Site ID #92-0021
Air Quality Evaluation Results, T & J Cleaners,
DSCA Site # 92-0021, 2423 Crabtree Blvd.,
URS Corporation
April 18, 2013
Raleigh, Wake County, NC
Update Assessment Report Submittal, T & J
Cleaners DSCA Site ID 492-0021, 2423
URS Corporation
May 10, 2013
Crabtree Blvd., Raleigh, Wake County, NC
Remedial Options Evaluation, Paramount
URS Corporation
March 11, 2014
Cleaners DSCA Site ID #92-0021
Air Quality Evaluation Results Addendum
URS Corporation
September 16, 2014
System Design and Injection Plan Submittal,
Paramount Cleaners DSCA Site ID #92-0021,
URS Corporation
March 24, 2015
2423 Crabtree Boulevard, Raleigh, Wake
County, North Carolina
Phase I Environmental Site Assessment Report,
Mid -Atlantic
Crabtree Plaza Shopping Center, 2427 Crabtree
Associates, Inc.
May 5, 2015
Boulevard, Raleigh, NC
Interim Remedial Action Report —
URS Corporation
February 25, 2016
In'ection/SSDS Installation
Analytical Data Table — Groundwater Sampling
Report, T & J Cleaners DSCA Site #DC920021,
URS Corporation
April 1, 2016
2423 Crabtree Blvd., Raleigh, Wake County, NC
Post -Interim Action — Indoor Air Sampling
Report, T & J Cleaners DSCA Site ID
URS Corporation
April 2016
#DC920021.2321 Crabtree Blvd., Raleigh,
Wake County, NC
Post Interim Action — Confirmatory Indoor Air
Sampling Report, T&J Cleaners DSCA Site ID
URS Corporation
October 19, 2016
#DC920021
Interim Remedial Action Report Addendum
URS Corporation
November 14, 2016
Data Package November 10, 2016 Sampling
Mid -Atlantic
Event, Gateway Plaza Site, Raleigh, North
Associates, Inc.
December 2016
Carolina
Groundwater Sampling Report — March 2017,
AECOM Technical
T&J Cleaners DSCA Site ID #DC920021
Services of North
April 28, 2017
Carolina, Inc.
Gateway Plaza/ 19067-15-092/08Jan2021

Title
Prepared by
Date of Report
Data Package June 21, 2017 Indoor Air
AECOM Technical
Sampling Event, Gateway Plaza Site, Raleigh,
Services of North
June 30, 2017
North Carolina
Carolina, Inc.
Data Package August 1, 2017 Indoor Air
AECOM Technical
Sampling Event, Gateway Plaza Site, Raleigh,
Services of North
August 11, 2017
North Carolina
Carolina, Inc.
Indoor Air Sampling and Radius -of -Influence
AECOM Technical
Report, T&J Cleaners DSCA Site ID#
Services of North
August 29, 2017
DC920021
Carolina, Inc.
Data Package July 27, 2017 Indoor Air and Sub-
Mid -Atlantic
Slab Sampling Event, Gateway Plaza Site,
Associates, Inc.
September 1, 2017
Raleigh, North Carolina
Data Package November 28, 2017 Indoor Air
AECOM Technical
Sampling Event, Gateway Plaza Site, Raleigh,
Services of North
December 19, 2017
North Carolina
Carolina, Inc.
November 2017 Indoor Air Sampling Report,
AEMCOM Technical
T&J Cleaners DSCA Site ID #DC920021
Services of North
January 5, 2018
Carolina, Inc.
Operations and Maintenance (July 2017-
AECOM Technical
December 2018) Report, T&J Cleaners, DSCA
Services of North
February 28, 2019
Site ID #DC920021
Carolina, Inc.
2019 System & Vapor Quality Evaluation
AECOM Technical
Report, T&J Cleaners DSCA Site ID
Services of North
August 13, 2019
#DC920021
Carolina, Inc.
Sub -Slab and Indoor Air Assessment Report
Mid -Atlantic
Associates, Inc.
August 28, 2019
Supplemental Sub -Slab and Indoor Air
Mid -Atlantic
October 1, 2019
Assessment Report, Gateway Plaza
Associates, Inc.
Analytical Data Table Report — Monitoring Well
AECOM Technical
Sampling/Well Network Update
Services of North
October 3, 2019
Carolina, Inc.
AECOM Technical
Pilot Test Report
Services of North
December 17, 2019
Carolina, Inc.
January 2020 Subslab Vapor Quality Evaluation
AECOM Technical
Report, T&J Cleaners, DSCA Site ID#
Services of North
February 17, 2020
DC920021
Carolina, Inc.
Gateway Plaza/ 19067-15-092/08Jan2021

6. For purposes of this Agreement, DEQ relies on the following information, which was
obtained from the Environmental Reports and DEQ's files, as to use and ownership of the
Brownfields Property:
a. The Brownfields Property was initially developed in 1965 for use as a retail
shopping center known as the Gateway Plaza Shopping Center. Prior to this time the
Brownfields Property was either undeveloped or used for agriculture from at least 1938. The site
improvements include two structures: a large one-story, multi -tenant commercial building and a
one-story brick building immediately west of it, with a large asphalt surface parking lot.
b. Originally, the Brownfields Property was comprised of a number of tracts
which were sold by various individuals to either Boulevard, Inc. or a later company, Gateway
Plaza, Inc. from August 1959 through December 1966. After the shopping center was
constructed, Gateway Plaza Inc. sold the property to Seby B. Jones and Christina B. Jones as
tenants in common on April 26, 1974. Meredith College purchased the Brownfields Property
from the Jones family in December 1982, and sold it to Murray -Gateway, LLC on August 20,
2004. The Prospective Developer, Elixir Retail Partners, LLC, purchased the Brownfields
Property from Murray -Gateway, LLC on May 26, 2016. NP Loden Gateway, LLC acquired the
Brownfields Property from the Prospective Developer on April 1, 2020.
c. The tenants in the larger commercial building have included a variety of retail
operations including grocery and drug stores, thrift stores, restaurants, beauty and hair salons,
laundry and dry cleaners, shoe shop, lithographic printers, electronics and semiconductor
distributers, and office space for professional services including tax accountant, realty offices,
and a construction company, among others. The one-story brick building was formerly occupied
7
Gateway Plaza/ 19067-15-092/08Jan2021

by Wake Tech Community College for use as adult educational space, but it has been vacant
since 2015. Most of the main shopping center space has been vacant for some time, although a
restaurant, bakery, brewery, craft store, and clothing store are operating currently. Additional
spaces are under renovation and tenants are planned in those spaces.
d. Most of the existing and known historical tenants are not suspected of storing
or handling substances that would be considered as potentially creating a recognized
environmental condition at the Brownfields Property; however, chlorinated solvents are known
to have been used in the former drycleaner space at 2423 Crabtree Boulevard. Assessment of this
space and those around it has demonstrated that soil, soil gas, indoor air, and groundwater has
been impacted by the release of chlorinated solvents associated with the former dry cleaner
operations at the Brownfields Property.
e. Readily available information about tenant history with approximate dates for
each of the tenant spaces is summarized below:
Crabtree
Blvd
Former
Address
Year
Former Known Uses
1972-1982
Winn Dixie Supermarkets
1992-2008
American Way Thrift StoreNietnam Vets Pickup Service
2012-2016
Cause for Paws Thrift Store
2409
2019- resent
BREW Coffee Shop
2019- resent
Union Special Bakery
2019- resent
Woof Gang Pet Grooming
2411
1972-2020
Restaurants most recently The Gateway Restaurant
1972
Litho Processing Inc. Printers/Cox Realty Group
2413
1972-1982
Offices for Standard Oil & Gateway Plaza, Beaman's Shoe
Shop, Garrison & Taylor Interiors, Inc.
1982
Dentist, Financial services company
1992
State Department Human Resources
Gateway Plaza/ 19067-15-092/08Jan2021

Crabtree
Blvd
Former
Address
Year
Former Known Uses
2003-2013
Muhlheim's Manufacturing Jewelers, tax services
2013-2017
Office tenants
2415
1972
Telecolor of Raleigh Photography, Davidson Jones Construction
Co., NC Assoc for the Blind, Pytronic Industries, Inc.
(electronics distributors), Motorola Semiconductor Products,
dentist, florist
1977
D&W Upholstery Shop, Olan Mills Studio, Finelco Electric Co.,
florist
Prior to 1982
Designed for Joy Jewelry & Accessories Retailer
1982
Mail services, Assoc. for the Blind, florist
1992-1997
Champagne Sim Developing Co., Qualey Champagne Color
2415
2008
La Nortenita
2013-2019
Carmen's Fashions, LLC
2020- resent
Little Maker's Academy drop -in daycare
1972-1982
Cafeteria, dress shop
1982-2015
Family Dollar Store or other variety store
2417
2005-2017
American Laundromat
2019- resent
HQ Raleigh
2020- resent
Arrichion Yoga Studio
1972
AD Enterprises, Inc., Lafayette Radio Electronics, Bryan Shoe
Store Repair
1977
TD Sound, Sound on Sound
1982
Colorcraft Corp. Photographic Equipment
2419
1992
State Department of Public Instruction Testing
2003-2008
TIP Nails and/or Unique Emporium, Rosas Salon
2013-2015
Exquisite Tax Service, hair salon, and photographic studio
2019- resent
Azure Violins
1972-1988
Eckerds Drug Store
1992
Raleigh News Agency
2421
1997-2015
Arrow Pawn Shop
2013-2015
Beauty supply store
2019- resent
Carmen's Fashions
1972-1992
Medlin Davis Cleaners
2423
1997-2008
T&J Cleaners
2015
T-T Sweepstakes Gaming Parlor
2423
2016
Bi-Rite
2017- resent
Craft Habit
2425
1972-2017
Various hair salons, most recently Shear Shack and the LTD
Gateway Plaza/ 19067-15-092/08Jan2021

Crabtree
Blvd
Former
Address
Year
Former Known Uses
Barbers
Current
Mordecai Beverage
1972-1997
Various hair salons, most recently Shear Shack
2427
2017
Institute for Divine Metaphysical Research church
Current
Mordecai Beverage
1972-1977
Surgical or medical supplies
1982
IBM Corp. Business Machines
1988
Central Regional Education Center
2431
1992-1997
State Department of Corrections
2003
Milburn Richard High School
unknown-
2015
Wake Tech Community College Adult Education
f. Short-term redevelopment plans include renovations for a major tenant, HQ
Raleigh, an entrepreneurial co -working and office space, and a variety of other operations,
including a combined brewery, taproom and bottle shop, drop -in childcare, coffee shop, bakery,
art studio and gallery, and existing tenants, Mordecai Brewing, the Gateway Restaurant,
Carmen's Fashions, and Craft Habit. Long-term redevelopment plans may include the
construction of high density residential buildings and/or additional retail or other commercial
space.
7. Pertinent environmental information regarding the Brownfields Property and
surrounding area includes the following:
a. There are a small number of former uses that may have handled petroleum
hydrocarbons or other solvents at the Brownfields Property, such as the former printers, shoe
repair shop, upholstery shop, and pawn shop, but the primary use that is known to have impacted
the Brownfields Property is the former drycleaning operations. Medlin Davis Cleaners and then
10
Gateway Plaza/ 19067-15-092/08Jan2021

T&J Cleaners were formerly located on the Brownfields Property at 2423 Crabtree Boulevard.
This location was first certified into the North Carolina Drycleaning Solvent Fund Cleanup Act
(DSCA) database in 2003 (DSCA ID#DC920021). Although earlier assessment activities were
conducted at the Brownfields Property, since 2005, the former drycleaner's tenant space and the
courtyard behind it have been assessed through the DSCA Program and interim remedial
activities have been put in place. Interim remedial activities were completed in 2015 and 2016,
with subsequent monitoring, to address these impacts to soil, groundwater, soil gas, and indoor
air at the Brownfields Property.
b. Elevated concentrations of the chlorinated volatile organic compounds (VOCs)
tetrachloroethene (PCE), trichloroethylene (TCE), and vinyl chloride were detected as early as
2002 in groundwater at the Brownfields Property ranging up to 681,000 micrograms per liter
(µg/L), 12,000 µg/L, and 600 µg/L, respectively. The source of these compounds was
determined to be from the handling and subsequent release of solvents from the former
drycleaner space. The depth to groundwater in the apparent source area has ranged from about
3.5 feet to 5.5 feet below the concrete floor slab in the former drycleaners' tenant space.
Impacted groundwater may have migrated into Pigeon House Branch. Indoor air concentrations
of chlorinated solvents indicate a complete vapor intrusion migration pathway into the
drycleaning and adjacent tenant spaces, although remedial activities have addressed this risk for
non-residential uses.
c. In early 2016, URS Corp. NC was contracted by the DSCA Program to install,
startup, and maintain a combined soil vapor extraction (SVE) system and sub -slab
depressurization system (SSDS) in accordance with DSCA regulatory objectives. The vapor
11
Gateway Plaza/ 19067-15-092/08Jan2021

recovery system included three linear trenches installed within the courtyard and beneath the
concrete floor slab at the south end of the former drycleaners' tenant space. The system was
designed to recover residual chlorinated solvent concentrations from the soil in the courtyard and
to remove sub -slab soil vapors accumulating beneath the building within the zone of capture of
the vapor recovery trenches.
d. Subject to the requirements and limitations ofN.C.G.S. 143-215.104 etseq,
DSCA intends to make improvements to an existing vapor intrusion mitigation system involving
the former T&J Cleaners tenant space (currently occupied by tenant Craft Habit) and the adjacent
space, 2409-123 at the Brownfields Property specifically to mitigate vapor intrusion into indoor
air and the associated risk of inhalation of those contaminants stemming from drycleaning
solvent releases at the DSCA site (DC920021), also known as the "T&J Cleaners" site, in
accordance with an executed access agreement between Elixir Retail Partners, LLC and DWM,
effective June 29, 2016. Site DC920021 was certified into the DSCA program on May 22, 2003,
and contamination associated with a release of drycleaning solvent from the former "T&J
Cleaners" site is currently being addressed in accordance with the "Agreement for Assessment
and Remediation" between NC Division of Waste Management and Medlin -Davis, Inc. as
executed on May 6, 2005. The requirement for a vapor intrusion mitigation system at the
above -referenced units is agreed to by Elixir Retail Partners, LLC and DEQ.
8. The most recent environmental sampling activities occurred at the site on January 9,
2020. The tables set forth in Exhibit 2 to this Agreement present contaminants detected at the
Brownfields Property above applicable standards or screening levels for each media sampled at
the Brownfields Property.
12
Gateway Plaza/ 19067-15-092/08Jan2021

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 September 29, 2015 and a
revised BPA on October 22, 2015, purchasing the Brownfields Property on May 26, 2016, and
day-to-day operational management of the facility, including negotiations with current and
prospective tenants, overseeing the parking lot improvements and other site renovations in
accordance with a DEQ-approved Environmental Management Plan, a requirement of this
Agreement, dated September 5, 2018, coordinating with the DSCA Program on vapor intrusion
mitigation issues; and granting the Brownfields Property to NP Loden Gateway, 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
13
Gateway Plaza/ 19067-15-092/08Jan2021

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
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 the highest and best productive use of the Brownfields Property;
b. a spur to additional community investment and redevelopment, through
improved neighborhood appearance and otherwise;
c. subject to the limitations of paragraph 15 of this Agreement, additional hotel,
14
Gateway Plaza/ 19067-15-092/08Jan2021

retail, restaurant, brewery, food production facility, office space, rental storage,
event/performance/exhibition space, associated parking, and potentially high density residential
or other commercial uses, including childcare, drop -in childcare, or educational space for the
area;
d. the creation of 100 additional temporary jobs during construction, renovation,
and 50 additional jobs after redevelopment;
e. an increase in tax revenue for affected jurisdictions; 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 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
and compliance with the land use restrictions set forth below, and subject to paragraph 18 and
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, as required by this Section.
15
Gateway Plaza/ 19067-15-092/08Jan2021

15. By way of the Notice of Brownfields Property referenced below in paragraph 20,
Prospective Developer shall impose the following land use restrictions under the Act, running
with the land, to make the Brownfields Property suitable for the uses specified in this Agreement
while fully protecting public health and the environment, instead of remediation to unrestricted
use standards. All references to DEQ shall be understood to include any successor in function.
a. No use shall be made of the Brownfields Property's existing structures, as
delineated on the plat component of the Notice of Brownfields Property referenced in paragraph
20 below, (before or after renovation) other than for hotel, retail, restaurant, brewery, food
production facility, office space, rental storage, event/performance/exhibition space, and
associated parking, and subject to DEQ's prior written approval, other commercial uses,
including childcare, drop -in childcare, educational spaces, or senior facility use, although use of
any existing building, or portion thereof, for childcare, drop -in childcare, schools, or senior
facilities, or occupancy of the Gateway Arts building, is prohibited unless the uses in the affected
space are in compliance with the provisions in subparagraph 151. below. Residential use of the
existing structures is prohibited. In addition to those approved uses for the existing buildings
above, new construction may also include high density residential, childcare, drop -in childcare,
educational spaces, or senior facilities, although such uses are prohibited unless said new
construction is in compliance with subparagraph 151. below. For purposes of this restriction, the
following definitions apply:
i. "Hotel" is defined as the provision of overnight lodging to paying
customers, and to associated food services, gym, reservation, cleaning, utilities, parking and on -
site hospitality, management and reception services.
16
Gateway Plaza/ 19067-15-092/08Jan2021

ii. "Retail" is defined as the sale of goods or services, products, food,
beverage, refreshments, or merchandise directly to the consumer or businesses and includes
showrooms, personal service, restaurants, and the sales of food and beverage products, although
there is a prohibition on the use of chlorinated solvents in drycleaner or other retail or commercial
operations.
iii. "Restaurant" is defined as a commercial business establishment that
prepares and serves food and beverages to patrons.
iv. `Brewery" or "Food Production Facility" is defined as an establishment
for the manufacture, sale and distribution of beverages or food products, including without
limitation beer and ale, together with associated public roadways and related infrastructure.
services;
v. "Office" is defined as to the provision of business or professional
vi. "Rental Storage" is defined as enclosed spaces that are commercially
rented on a short- or long-term basis by consumers and businesses for the storage of personal
effects, household goods, equipment, and other non -hazardous materials that are in compliance
with all other aspects of this Agreement.
vii. "Event/performance/exhibition space" is defined as venues for public
events, artistic performances, or galleries for displaying art or similar public gathering space.
viii. "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
17
Gateway Plaza/ 19067-15-092/08Jan2021

courtyards are prohibited), 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.
ix. "Parking" is defined as the temporary accommodation of motor
vehicles in an area designed for same.
x. "Commercial" is defined as an enterprise carried on for profit or
nonprofit by the owner, lessee or licensee although there is a prohibition on the use of
chlorinated solvents in drycleaner or other retail or commercial operations.
xi. "Childcare" is defined as the care and supervision of children by adults
in a non-profit or profit -based setting as defined in NCGS § 110-86(2).
xii. "Drop -in childcare" is defined as short-term care for children that is
excluded from the definition of childcare in 15.xi., and is provided while parents participate in
activities that are not employment related and where the parents are on the premises or otherwise
easily accessible, or is that provided by an employer for its part-time employees under the
conditions specified in NCGS § 110-86(2)d and § 110-86(2)dl .
xiii. "Educational space" is defined as interior space which is occupied by
a privately or publicly owned institution that provides education to elementary and older students.
xiv. "Senior care facilities" is defined as assisted care, memory care, or
skilled nursing facilities that house the elderly and which routinely provide for the diagnostics,
care, treatment, and testing for physical or psychological injury or illness, or disability, and for
the overnight boarding of patients, either on a for -profit or not -for -profit status.
IN
Gateway Plaza/ 19067-15-092/08Jan2021

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;
Exhibit 2;
ii. issues related to potential sources of contamination referenced in
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. By January 31 st annually after 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
19
Gateway Plaza/ 19067-15-092/08Jan2021

environment -related activities since the last report, with a summary and drawings, that describes:
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 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
911
Gateway Plaza/ 19067-15-092/08Jan2021

until DEQ states in writing, in advance of the proposed activity, that said activity may occur if
carried out along with any measures DEQ deems necessary to ensure the Brownfields Property
will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public
health and the environment, except:
inches;
i. in connection with landscape planting to depths not exceeding 30
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;
iv. in connection to work conducted in accordance with a DEQ-approved
EMP as outlined in subparagraph 15.b. above; or
v. in connection with the routine maintenance, upkeep, upfit, or cosmetic
upgrades to the current structures, parking lot maintenance or upgrade, as long as these activities
are conducted outside of the "Area of Shallow Soil Contamination" as depicted on the plat
component to the Notice of Brownfields Property referenced in paragraph 20 below, comply
with all other land use restrictions set forth in this Agreement, and that such soil disturbance
extends no deeper than 30 inches below grade.
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.
21
Gateway Plaza/ 19067-15-092/08Jan2021

h. With respect to the use of buildings at the Brownfields Property, the following
limitations shall apply:
i. No existing building, defined as those depicted on the plat component of
the Notice of Brownfields Property referenced in paragraph 20 below, may be occupied by
residential, childcare, drop -in childcare, educational space, or senior care facilities, and no
occupancy of the Gateway Arts Building may occur, until DEQ determines in writing that:
1. the building is or would be protective of the building's users,
public health and the environment from risk of vapor intrusion based on site assessment data or a
site -specific risk assessment approved in writing by DEQ;
2. the building is or would be sufficiently distant from the
Brownfields Property's groundwater and/or soil contamination, based on assessment data
approved in writing by DEQ, that the building's users, public health and the environment will be
protected from risk from vapor intrusion related to said contamination; or
3. vapor mitigation measures are designed, installed, and
implemented in a manner that will fully protect public health to the satisfaction of a professional
engineer licensed in North Carolina, as evidenced by said engineer's professional seal on a report
that includes photographs and a description of the installation and performance of said measures,
and to DEQ. The design specifications shall include methodology(ies) for demonstrating
performance of said measures and long-term operation and maintenance requirements. If the
measures that the DSCA program intends to install or modify meet the performance
requirements of this subparagraph to the written satisfaction of DEQ, then those measures may
be considered as sufficient to meet the requirements of this subparagraph. Both parties hereby
22
Gateway Plaza/ 19067-15-092/08Jan2021

acknowledge that the DSCA Program is not a party to this Agreement; compliance with the
provisions of this land use restriction may be met by the measures that the DSCA Program
intends to install or modify, but the DSCA Program is not installing or modifying those measures
pursuant to this Agreement nor is it subject to the authority of the Brownfields Program; and that
the DSCA Program intends to install or modify measures on the Brownfields Property under the
authority and subject to the requirements and limitations set forth in N.C. Gen. Stat. 143-
215.104A et seq., and the Rules promulgated thereunder.
ii. No enclosed building may be constructed on the Brownfields Property,
until DEQ determines in writing that:
1. the building is or would be protective of the building's users,
public health and the environment from risk of vapor intrusion based on site assessment data or a
site -specific risk assessment approved in writing by DEQ;
2. the building is or would be sufficiently distant from the
Brownfields Property's groundwater and/or soil contamination, based on assessment data
approved in writing by DEQ, that the building's users, public health and the environment will be
protected from risk from vapor intrusion related to said contamination; or
3. vapor mitigation measures are designed, installed, and
implemented in a manner that will fully protect public health to the satisfaction of a professional
engineer licensed in North Carolina, as evidenced by said engineer's professional seal on a report
that includes photographs and a description of the installation and performance of said measures,
and to DEQ. The design specifications shall include methodology(ies) for demonstrating
performance of said measures and long-term operation and maintenance requirements.
23
Gateway Plaza/ 19067-15-092/08Jan2021

i. 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:
activities;
i. in de minimis amounts for cleaning and other routine housekeeping
11. as constituents of products and materials customarily used and stored in
hotel, retail, restaurant, brewery, office space, rental storage, event/performance/exhibition space,
or if approved, other commercial, high density residential, childcare, drop -in childcare, or
educational space environments, provided such products and materials are stored in original retail
packaging and used and disposed of in accordance with applicable laws; or
ill. as fuel or other fluids customarily used in vehicles, landscaping
equipment and emergency generators.
j. The Brownfields Property may not be used as an outdoor park or for outdoor
sports of any kind, including, but not limited to, golf, football, soccer and baseball, without the
prior written approval of DEQ. This restriction does not include informal outdoor sports
activities that take place on impervious surfaces (i.e. miniature golf, shuffleboard, etc.).
k. 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
Gateway Plaza/ 19067-15-092/08Jan2021

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 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 (11) The
owner conveying an interest may provide abstracts of leases, rather than full copies of said
leases, to the persons listed in Section XV.
1. Within 60 days after the effective date of this Agreement or prior to land
disturbance activities, Prospective Developer shall abandon monitoring wells, injection wells,
recovery wells, piezometers and other man-made points of groundwater access at the Brownfields
Property, except those wells identified by DSCA as being necessary for continued monitoring, i.e.
monitoring wells MW-1R, MW-2, MW-3, MW-4, MW-5, MW-8, MW-9, MW-10, MW-11, MW-
12, MW-13, MW-14, MW-17, and DMW-18, 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.
in. Other than the abandonment of certain on -site monitoring wells as described
in subparagraph 15.1. above, the owner of any portion of the Brownfields Property where any
existing, or subsequently installed, DEQ-approved monitoring well is damaged shall be
responsible for repair of any such wells to DEQ's written satisfaction and within a time period
25
Gateway Plaza/ 19067-15-092/08Jan2021

acceptable to DEQ, unless compliance with this land use restriction is waived in writing by DEQ
in advance.
n. 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.
o. During January of each year after the year in which the Notice referenced
below in paragraph 20 is recorded, the owner of any part of the Brownfields Property as of
January 1st of that year shall submit a notarized Land Use Restrictions Update ("LURU") to
DEQ, and to the chief public health and environmental officials of 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 certifying that the land use
restrictions are being complied with, and stating:
i. the name, mailing address, telephone number, and contact person's e-
mail address of the owner submitting the LURU if said owner acquired any part of the Property
during the previous calendar year;
ii. the transferee's name, mailing address, telephone number, and contact
person's e-mail address, if said owner transferred any part of the Brownfields Property during
the previous calendar year;
iii. whether any vapor barrier and/or mitigation systems installed pursuant
to subparagraphs 151.0. or 15.h.ii.3. above are performing as designed, and whether the uses of
we
Gateway Plaza/ 19067-15-092/08Jan2021

the ground floors of any buildings containing such vapor barrier and/or mitigation systems have
changed, and, if so, how.
p. A joint LURU may be submitted for multiple owners by a duly constituted
board or association and shall include the name, mailing address, telephone and facsimile
numbers, and contact person's e-mail address of the entity submitting the joint LURU as well as
for each of the owners on whose behalf the joint LURU is submitted.
q. LURU's submitted for any portion of the Brownfields Property that contains
rental units shall include a list of tenants and their addresses.
r. 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.
s. 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.
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.
27
Gateway Plaza/ 19067-15-092/08Jan2021

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 Superf ind Section and Division of
Waste Management Vapor Intrusion Guidance, as embodied in their most current version.
18. The consequence of achieving the desired results will be that the Brownfields
Property will be suitable for the uses specified in the Agreement while fully protecting public
health and the environment. The consequence of not achieving the desired results will be that
modifications to land use restrictions and/or remediation in some form may be necessary to fully
protect public health and/or the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
19. In addition to providing access to the Brownfields Property pursuant to subparagraph
15.n. 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
W.
Gateway Plaza/ 19067-15-092/08Jan2021

any other applicable statute or regulation, including any amendments thereto.
20. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields
Property for the Brownfields Property containing, inter alia, the land use restrictions set forth in
Section V (Work to Be Performed) of this Agreement and a survey plat of the Brownfields
Property. Pursuant to NCGS § 130A-310.35(b), within 15 days of the effective date of this
Agreement, Prospective Developer shall file the Notice of Brownfields Property in the 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 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
w
Gateway Plaza/ 19067-15-092/08Jan2021

sending copies of actual, executed leases, to the persons listed in Section XV (Notice 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 U.S.C. § 9603, and/or any
other law, and shall immediately notify the entity 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
30
Gateway Plaza/ 19067-15-092/08Jan2021

the Brownfields Property Application dated September 29, 2015 by which it applied for this
Agreement, a revised BPA on October 22, 2015, and subsequent correspondence. That use,
subject to the limitations of paragraph 15 of this Agreement, is hotel, retail, restaurant, brewery,
food production facility, office space, rental storage, event/performance/exhibition space, high
density residential, associated parking, and subject to DEQ's prior written approval, other
commercial uses, including childcare, drop -in childcare, educational spaces, or senior facilities.
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. DEO'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.
31
Gateway Plaza/ 19067-15-092/08Jan2021

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
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
32
Gateway Plaza/ 19067-15-092/08Jan2021

health and the environment as planned in this Agreement.
g. DEQ obtains new information about a contaminant associated with the
Brownfields Property or exposures at or around the Brownfields Property that raises the risk to
public health or the environment associated with the Brownfields Property beyond an acceptable
range and in a manner or to a degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under NCGS § 130A-310.35.
26. Except as may be provided herein, DEQ reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
27. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, NCGS § I I3A-1, et seq.
28. Consistent with NCGS § 130A-310.33, the liability protections provided herein, and
any statutory limitations in paragraphs 26 through 28 above, apply to all of the persons listed in
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
33
Gateway Plaza/ 19067-15-092/08Jan2021

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 Parry'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
and operating records, contracts, site studies and investigations, remediation reports, and
34
Gateway Plaza/ 19067-15-092/08Jan2021

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 Browniields 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.
XV. NOTICES AND SUBMISSIONS
35. Unless otherwise required by DEQ or a Party notifies the other Party in writing of a
35
Gateway Plaza/ 19067-15-092/08Jan2021

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
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Seby Russell Jones (or successor in function)
Elixir Retail Partners, LLC
821 Wake Forest Road
Raleigh, NC, 27604
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
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
36
Gateway Plaza/ 19067-15-092/08Jan2021

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 Parry requesting such termination receives
written agreement from the other Parry 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
DEQ in writing within 10 days of receiving said suit or claim.
37
Gateway Plaza/ 19067-15-092/08Jan2021

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:
Ellen Lorscheider Date
Deputy Director, Division of Waste Management
IT IS SO AGREED:
Elixir Retail Partners, LLC
By:
Seby Russell Jones
Manager
W.
Gateway Plaza/ 19067-15-092/08Jan2021
Date

Property Owner: NP Loden Gateway, LLC
Recorded in Book , Page
Associated plat recorded in Plat Book , Page
NOTICE OF BROWNFIELDS PROPERTY
Brownfields Property Name: Gateway Plaza Shopping Center
Brownfields Project Number: 19067-15-092
This documentary component of a Notice of Brownfields Property ("Notice"), as well
as the plat component, have been filed this day of , 2021 by Elixir
Retail Partners, LLC ("Prospective Developer").
This Notice concerns contaminated property.
A copy of this Notice certified by the North Carolina Department of Environmental
Quality ("DEQ") is required to be filed in the Register of Deeds' Office in the county or
counties in which the land is located, pursuant to North Carolina General Statutes
("NCGS"), § 130A-310.35(b).
This Notice is required by NCGS § 130A-310.35(a), in order to reduce or eliminate
the danger to public health or the environment posed by environmental contamination at a
property (`Brownfields Property") being addressed under the Brownfields Property Reuse
Act of 1997, NCGS § 130A, Article 9, Part 5 ("Act").
Pursuant to NCGS § 130A-310.35(b), the Prospective Developer must file a certified
copy of this Notice within 15 days of Prospective Developer's receipt of DEQ's approval of
the Notice or Prospective Developer's entry into the Brownfields Agreement required by the
Act, whichever is later. The copy of the Notice certified by DEQ must be recorded in the
grantor index under the names of the owners of the land and, if Prospective Developer is not
the owner, also under the Prospective Developer's name.
The Brownfields Property is located at 2409 Crabtree Boulevard, Raleigh, Wake County.
It is 6.68 acres in size and has been the site of the Gateway Plaza Shopping Center for decades.
Former drycleaning operations in certain units at the Brownfields Property have led to
environmental impacts that are managed under the North Carolina Drycleaning Solvent Cleanup
Act (DSCA) ID No. DC920021. The Brownfields Property will continue to be operated as a
Gateway Plaza/19067-15-092/07Jan2021

shopping center with the potential for new construction at the Brownfields Property.
The Brownfields Agreement between Prospective Developer and DEQ is attached
hereto as Exhibit A. It is required by NCGS § 130A-310.32 and 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. 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 8.5 inches x 11 inches, 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 shall be made of the Brownfields Property's existing structures, as delineated
on the plat component of the Notice of Brownfields Property referenced in paragraph 20 below,
(before or after renovation) other than for hotel, retail, restaurant, brewery, food production
facility, office space, rental storage, event/performance/exhibition space, and associated parking,
and subject to DEQ's prior written approval, other commercial uses, including childcare, drop -in
childcare, educational spaces, or senior facility use, although use of any existing building, or
portion thereof, for childcare, drop -in childcare, schools, or senior facilities, or occupancy of the
Gateway Arts building, is prohibited unless the uses in the affected space are in compliance with
the provisions in subparagraph 15.h. below. Residential use of the existing structures is
Gateway Plaza/19067-15-092/07hn2021
2

prohibited. In addition to those approved uses for the existing buildings above, new construction
may also include high density residential, childcare, drop -in childcare, educational spaces, or
senior facilities, although such uses are prohibited unless said new construction is in compliance
with subparagraph 151. below. For purposes of this restriction, the following definitions apply:
i. "Hotel" is defined as the provision of overnight lodging to paying customers,
and to associated food services, gym, reservation, cleaning, utilities, parking and on -site
hospitality, management and reception services.
ii. "Retail" is defined as the sale of goods or services, products, food, beverage,
refreshments, or merchandise directly to the consumer or businesses and includes showrooms,
personal service, restaurants, and the sales of food and beverage products, although there is a
prohibition on the use of chlorinated solvents in drycleaner or other retail or commercial
operations.
iii. "Restaurant" is defined as a commercial business establishment that prepares
and serves food and beverages to patrons.
iv. `Brewery" or "Food Production Facility" is defined as an establishment for the
manufacture, sale and distribution of beverages or food products, including without limitation
beer and ale, together with associated public roadways and related infrastructure.
v. "Office" is defined as to the provision of business or professional services;
vi. "Rental Storage" is defined as enclosed spaces that are commercially rented on
a short- or long-term basis by consumers and businesses for the storage of personal effects,
household goods, equipment, and other non -hazardous materials that are in compliance with all
other aspects of this Agreement.
vii. "Event/performance/exhibition space" is defined as venues for public events,
artistic performances, or galleries for displaying art or similar public gathering space.
viii. "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 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.
ix. "Parking" is defined as the temporary accommodation of motor vehicles in an
area designed for same.
x. "Commercial" is defined as an enterprise carried on for profit or nonprofit by
the owner, lessee or licensee although there is a prohibition on the use of chlorinated solvents in
Gateway Plaza/19067-15-092/07Jan2021
3