HomeMy WebLinkAboutFINAL NI PACKAGE - ELKIN CHRYSLER
NI Elkin Chrysler, BF Project# 19031-15-03, 04-06-16
NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Site Name: Elkin Chrysler Redevelopment
Brownfields Project Number: 19031-15-032
North Carolina’s Brownfields Property Reuse Act (the “Act”), North Carolina General Statutes
(“NCGS”) § 130A-310.30 through 130A-310.40, provides for the safe redevelopment of properties that
may have been or were contaminated by past industrial and commercial activities. One of the Act’s
requirements is this Notice of Intent to Redevelop a Brownfields Property approved by the North
Carolina Department of Environmental Quality (“DEQ”). See NCGS § 130A-310.34(a). The Notice of
Intent must provide, to the extent known, a legal description of the location of the brownfields property, a
map showing the location of the brownfields property, a description of the contaminants involved and
their concentrations in the media of the brownfields property, a description of the intended future use of
the brownfields property, any proposed investigation and remediation, and a proposed Notice of
Brownfields Property prepared in accordance with NCGS § 130A-310.35. The party (”Prospective
Developer”) who desires to enter into a Brownfields Agreement with DEQ must provide a copy of this
Notice to all local governments having jurisdiction over the brownfields property. The proposed Notice
of Brownfields Property for a particular brownfields project is attached hereto; the proposed
Brownfields Agreement, which is attached to the proposed Notice of Brownfields Property as Exhibit A,
contains the other required elements of this Notice. Written public comments may be submitted to DEQ
within 30 days after the latest of the following dates: the date the required summary of this Notice is (1)
published in a newspaper of general circulation serving the area in which the Property is located, (2)
conspicuously posted at the Property, and (3) mailed or delivered to each owner of property contiguous
to the brownfields property. Written requests for a public meeting may be submitted to DEQ within 21
days after the period for written public comments begins. Those periods will start no sooner than March
30, 2016, and will end on the later of: a) 30 and 21 days, respectively, after that; or b) 30 and 21 days,
respectively, after completion of the latest of the three (3) above-referenced dates. All comments and
meeting requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environmental Quality
1646 Mail Service Center
Raleigh, North Carolina 27699-1646
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Property Owner: NR Van Alen Property Owner LLC
Recorded in Book ____, Page ____
Associated plat recorded in Plat Book ____, Page ____
NOTICE OF BROWNFIELDS PROPERTY
Site Name: Elkin Chrysler Redevelopment
Brownfields Project Number: 19031-15-032
This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat
component, have been filed this _____ day of __________________, 2016 by NR Van Alen Property
Owner 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. Pursuant to
NCGS § 130A-310.35(c), 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 is located at 905 & 925 E. Jackie Robinson Drive in Durham,
Durham County, North Carolina. The property comprises an entire city block, consists of approximately 6.16
acres and is recorded as Parcel ID number 0821-12-95-0598 by the Durham County Tax Assessor’s Office. The
parcel is zoned Design District – Core by the Durham County Planning Department. The Property is currently
operating as a sales and distribution center for ThunderShirt and an electronics processing facility for Triangle
Ecycling. NR Van Alen Property Owner LLC intends to develop the Property for hotel, institutional, office,
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restaurant, retail, multi-family residential, parking, and, with prior written DEQ 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.
Attached as Exhibit B to this Notice is a reduction, to 8 1/2" x 11", of the survey plat component
of this Notice. This plat shows areas designated by DEQ, has been prepared and certified by a
professional land surveyor, meets the requirements of NCGS § 47-30, and complies with NCGS §
130A-310.35(a)’s requirement that the Notice identify:
(1) The location and dimensions of the areas of potential environmental concern with respect to
permanently surveyed benchmarks.
(2) The type, location and quantity of regulated substances and contaminants known to exist on the
Brownfields Property.
Attached hereto as Exhibit C is a legal description of the Brownfields Property that would be sufficient
as a description of the property in an instrument of conveyance.
LAND USE RESTRICTIONS
NCGS § 130A-310.35(a) also requires that the Notice identify any restrictions on the current and future
use of the Brownfields Property that are necessary or useful to maintain the level of protection appropriate for
the designated current or future use of the Brownfields Property and that are designated in the Brownfields
Agreement. The restrictions shall remain in force in perpetuity unless canceled by the Secretary of DEQ
(or its successor in function), or his/her designee, after the hazards have been eliminated, pursuant to
NCGS § 130A-310.35(e). All references to DEQ shall be understood to include any successor in function.
The restrictions are hereby imposed on the Brownfields Property, and are as follows:
1. No use may be made of the Brownfields Property other than for hotel, institutional,
office, restaurant, retail, multi-family residential, parking, and, with prior written DEQ approval, other
commercial uses. For purposes of this Notice, the following definitions apply:
a. “Hotel” refers to means a building containing more than four individual
rooms that provides overnight lodging and potentially dining or conference facilities along with
reservation, cleaning, utilities and on-site management and reception services for paying customers;
b. “Institutional” refers to uses related to educational, academic, cultural,
technology, research and other similar pursuits, including without limitation laboratories and similar
research facilities, museums, galleries, performance spaces, and classroom or clinical educational
facilities;
c. “Multi-family residential” refers to use of units in multi-unit buildings as
permanent dwellings (either for sale or for rent);
d. “Office” refers to the rendering of business or professional services;
e. “Parking” refers to the temporary accommodation of motor vehicles in an
area designed for same;
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f. “Restaurant” refers to a business where meals are prepared and served to
paying customers (including mobile restaurants such as food trucks); and
g. “Retail” refers to the sale of goods, products, entertainment or
merchandise directly to the consumer including the sales of food and beverage (including without
limitation alcoholic beverage) products.
For the avoidance of doubt, each of the above-defined uses shall also be defined to include
infrastructure associated with such uses.
2. Physical redevelopment of the Brownfields Property may not occur other than in
accord, as determined by DEQ, with an 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:
a. soil and water management issues, including without limitation those
resulting from contamination identified in the Environmental Reports referenced in the Notice’s Exhibit
A;
b. issues related to potential sources of contamination referenced in
paragraph 7 of this Notice’s Exhibit A; and
c. contingency plans for addressing newly discovered potential sources of
environmental contamination (e.g., tanks, drums, septic drain fields).
3. Groundwater at the Brownfields Property may not be used for any purpose without the
prior written approval of DEQ.
4. None of the contaminants known to be present in the environmental media at the
Brownfields Property, as described in paragraphs 7 and 8 of this Notice’s Exhibit A, may be used or
stored at the Brownfields Property without the prior written approval of DEQ, except:
a. in de minimis amounts for cleaning and other routine housekeeping
activities;
b. as component constituents of articles, equipment and materials used or
sold in connection with uses permitted under the Notice’s Exhibit A, such as in consumer products,
stainless steel or building materials; and/or
c. except as fuel or other fluids customarily used in vehicles, landscaping
equipment, elevators or small quantity emergency generators.
For the avoidance of doubt, this paragraph is not intended to prevent the use, storage or other
handling of any particular materials or constituents on the Brownfields Property. Instead, it is
intended to allow DEQ to review and approve of methods and procedures for the handling of
materials or constituents so as to assist DEQ, if necessary, in reasonably distinguishing such materials
or constituents from contamination at the Brownfields Property predating the effective date of the
Notice’s Exhibit A.
5. The Brownfields Property may not be used for agriculture or grazing, without the prior
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written approval of DEQ.
6. The Brownfields Property may not be used for childcare centers or schools, without the
prior written approval of DEQ.
7. No later than 30 days after the effective date of the Notice’s Exhibit A, Prospective
Developer shall notify DEQ that it is ready to effect the abandonment of all groundwater 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 DEQ notifies Prospective Developer within 10 days of receiving such
notification to refrain from such abandonment, Prospective Developer shall, on a schedule acceptable to
DEQ, effect said abandonment and, within 30 days after doing so, provide DEQ a report, subject to DEQ
approval, setting forth the procedures and results.
8. 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 acceptable to DEQ, unless compliance
with this Land Use Restriction is waived in writing by DEQ in advance.
9. 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.
10. During January of each year after the year in which this Notice 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
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, and stating:
a. 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; and
b. 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 lieu of submissions of LURUs by particular owners, a property owners association or other
entity may submit the same on behalf of some or all owners of the Brownfields Property, if said
association or entity: (i) has accepted responsibility for LURU submission pursuant to a notarized
instrument that includes, at a minimum, the name and mailing address, and if available, telephone and
facsimile numbers and e-mail address, of each owner on whose behalf the LURU is being submitted, or is
responsible for LURU submission on behalf of such owners pursuant to a condominium declaration,
“covenants, conditions and restrictions” or a functionally equivalent instrument recorded in the land
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records of Durham County; and (ii) provides, contemporaneously with submission to DEQ, a copy of
each LURU submitted to each party on whose behalf it is submitted.
11. Any deed or other instrument conveying an interest in the Brownfields Property shall
contain the following notice: “The property which is the subject of this instrument 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. If DEQ issues prior, written approval, an owner may use the following
mechanisms to comply with the obligations of this paragraph, subject to the terms and conditions that
DEQ may establish in such approval: 1) If every lease and rider is identical in form with regard to the
notice required by this section the owner 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 (2) the owner may provide abstracts of leases
or the portion of such leases as are necessary to demonstrate compliance with this paragraph, rather than
full copies of said leases, to the persons listed in Section XV of this Notice’s Exhibit A.
For purposes of the land use restrictions set forth above, the DEQ point of contact shall be the DEQ
official referenced in paragraph 35a. of Exhibit A hereto, at the address stated therein.
ENFORCEMENT
The above land use restrictions shall be enforceable without regard to lack of privity of estate or
contract, lack of benefit to particular land, or lack of any property interest in particular land. The land use
restrictions shall be enforced by any owner of the Brownfields Property. The land use restrictions may also be
enforced by DEQ through the remedies provided in NCGS § 130A, Article 1, Part 2 or by means of a civil
action; by any unit of local government having jurisdiction over any part of the Brownfields Property; and by
any person eligible for liability protection under the Brownfields Property Reuse Act who will lose liability
protection if the restrictions are violated. Any attempt to cancel any or all of this Notice without the approval of
the Secretary of DEQ (or its successor in function), or his/her delegate, shall be subject to enforcement by DEQ
to the full extent of the law. Failure by any party required or authorized to enforce any of the above restrictions
shall in no event be deemed a waiver of the right to do so thereafter as to the same violation or as to one
occurring prior or subsequent thereto.
FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS
When any portion of the Brownfields Property is sold, leased, conveyed or transferred, pursuant to
NCGS § 130A-310.35(d) the deed or other instrument of transfer shall contain in the description section, in no
smaller type than that used in the body of the deed or instrument, a statement that the Brownfields Property has
been classified and, if appropriate, cleaned up as a brownfields property under the Brownfields Property Reuse
Act.
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IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this
_____ day of _______________, 2016.
NR Van Alen Property Owner LLC
By: __________________________________________
Adam Golden
Member
NORTH CAROLINA
DURHAM COUNTY
I certify that the following person(s) personally appeared before me this day, each acknowledging to me
that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity
indicated: ________________________________.
Date: ___________________ ___________________________________
Official Signature of Notary
___________________________________
Notary’s printed or typed name, Notary Public
(Official Seal) My commission expires: _____________________
APPROVAL AND CERTIFICATION OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY
The foregoing Notice of Brownfields Property is hereby approved and certified.
North Carolina Department of Environmental Quality
By: _________________________________________ ________________________
Michael E. Scott Date
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Acting Director, Division of Waste Management
CERTIFICATION OF REGISTER OF DEEDS
The foregoing documentary component of the Notice of Brownfields Property, and the associated plat,
are certified to be duly recorded at the date and time, and in the Books and Pages, shown on the first page
hereof.
Register of Deeds for Durham County
By:_____________________________________________ ________________________
Name typed or printed: ___________________________ Date
Deputy/Assistant Register of Deeds
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
PPAB 3105641v2
EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: NR Van Alen Property Owner LLC
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT ) Elkin Chrysler Redevelopment
OF 1997, NCGS § 130A-310.30, et seq. ) 905 & 925 E. Jackie Robinson Drive
Brownfields Project # 19031-15-032 ) Durham, Durham County
I. INTRODUCTION
This Brownfields Agreement (“Agreement”) is entered into by the North Carolina
Department of Environmental Quality (“DEQ”) and NR Van Alen Property Owner LLC
(collectively the “Parties”) pursuant to the Brownfields Property Reuse Act of 1997, NCGS §
130A-310.30, et seq. (the “Act”).
NR Van Alen Property Owner LLC is a Delaware member-managed limited liability
company created on January 15, 2016 for the purpose of acquiring and redeveloping land. The
subject property is located at 905 & 925 E. Jackie Robinson Drive in Durham, Durham County,
North Carolina. The property comprises an entire city block, consists of approximately 6.16
acres and is recorded as Parcel ID number 0821-12-95-0598 by the Durham County Tax
Assessor’s Office. The parcel is zoned Design District – Core by the Durham County Planning
Department. The Property is currently operating as a sales and distribution center for
ThunderShirt and an electronics processing facility for Triangle Ecycling. NR Van Alen
Property Owner LLC intends to develop the Property for hotel, institutional, office, restaurant,
retail, multi-family residential, parking, and, with prior written DEQ approval, other commercial
uses. A map showing the location of the property which is the subject of this Agreement is
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attached hereto as Exhibit 1.
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 NR Van Alen Property Owner LLC for contaminants at the property which
is the subject of this Agreement.
The Parties agree that NR Van Alen Property Owner LLC’s entry into this Agreement,
and the actions undertaken by NR Van Alen Property Owner LLC in accordance with the
Agreement, do not constitute an admission of any liability by NR Van Alen Property Owner
LLC.
The resolution of this potential liability, in exchange for the benefit NR Van Alen
Property Owner 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. “Property” shall mean the Brownfields Property which is the subject of this
Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. “Prospective Developer” shall mean NR Van Alen Property Owner LLC.
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III. STATEMENT OF FACTS
3. The Property comprises 6.16 acres. Prospective Developer has committed itself to
redevelopment for no uses other than hotel, institutional, office, restaurant, retail, multi-family
residential, parking, and, with prior written DEQ approval, other commercial uses.
4. The Property is bordered to the north by South Dillard Street beyond which lies the
Durham County Courthouse, to the south by Jackie Robinson Drive beyond which lies North
Carolina Highway 147, to the east by South Roxboro Street beyond which lies the former
Hendrick Durham Auto Mall, and to the west by South Mangum Street beyond which lies
WRAZ News, SunTrust Bank and the Durham Bulls Stadium.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the “Environmental Reports,” regarding the Property:
Title Prepared by Date of Report
Phase I Environmental Site Assessment for
Elkins Chrysler Plymouth Dealership,
Durham, North Carolina
Law Engineering and
Environmental
Services, Inc.
November 12, 1998
Letter Report of Environmental Services,
Elkins Chrysler Plymouth Dealership,
Durham, North Carolina
Law Engineering and
Environmental
Services, Inc.
March 24, 1999
Phase I Limited Site Assessment for Elkins
Chrysler Plymouth, 125 East-West
Expressway, 925 Jackie Robinson Drive,
Durham, North Carolina
IMS Environmental
Services
November 8, 2002
Underground Storage Tank Closure Report,
Elkins Chrysler Plymouth, 125 East-West
Expressway, Durham, North Carolina
IMS Environmental
Services
July 10, 2002
Letter Report of Environmental Services, Mid-Atlantic February 28, 2007
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Phase II Environmental Sampling, Elkins
Chrysler Mitsubishi, Durham, North Carolina
Associates, Inc.
Phase I Environmental Site Assessment,
Former Elkins Chrysler Mitsubishi
Dealership, 905 Jackie Robinson Drive
Durham, North Carolina
Mid-Atlantic
Associates, Inc.
February 25, 2015
Phase II Environmental Site Assessment, 905
Jackie Robinson Drive Durham, North
Carolina
Mid-Atlantic
Associates, Inc.
August 17, 2015
Soil Gas Sampling Letter Report, Former
Elkins Chrysler Mitsubishi Dealership, 905
Jackie Robinson Drive Durham, North
Carolina
Mid-Atlantic
Associates, Inc.
October 14, 2015
Brownfields Receptor Survey Mid-Atlantic
Associates, Inc.
October 16, 2015
6. For purposes of this Agreement, DEQ relies on the following representations by
Prospective Developer as to use and ownership of the Property:
The Property appears to have been developed with residential structures and a
tobacco warehouse as far back as 1888. In the 1960’s, the Property operated as an automotive
and sales and service facility and many of the buildings that housed those operations currently
exist on the Property. One building (Building A) on the northwestern portion of the Property is
currently occupied by Triangle Ecycling. Another building (Building B) located on the
southwestern portion of the Property is used by ThunderShirt for offices. Building A was built
in 1969. Building B was constructed in 2004. Building C is to the east, and is partially occupied
as a warehouse for Thundershirt. Building C was constructed in 1969. The Property is currently
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owned by NR Van Alen Property Owner LLC, which purchased the Property from E & L
Realty, LLC in May 2015.
7. Pertinent environmental information regarding the Property and surrounding area
includes the following:
a. Concentrations of constituents identified in the soil and groundwater
commonly associated with petroleum related products are likely due to the Property’s prior use
as a car dealership.
b. The concentration of vinyl chloride in the groundwater is likely from off-site
sources but may have been associated with the Property’s prior use history.
c. Five small underground storage tanks (“UST”) were removed from the
Property in 1988. A 1,500-gallon waste oil UST was removed from the Property in 2002.
DEQ’s predecessor agency issued a Notice of No Further Action related to that UST (Incident
#24432) on November 18, 2002.
8. The most recent environmental sampling at the Property as reported in the
Environmental Reports occurred on October 2002, February 2007 and March 2015. The
following tables set forth, for contaminants present at the Property above applicable standards or
screening levels, the concentration found at each sample location and the applicable standard or
screening level. Screening levels and groundwater standards are shown for reference only and
are not set forth as cleanup levels for the purposes of this Agreement.
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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 (April 1, 2014 version):
Groundwater
Contaminant
Sample
Location
Date of
Sampling
Concentration
Exceeding
Standard (µg/L)
Standard
(µg/L)
Lead MW-1 10/15/2002 37 15
Naphthalene TMW-1 03/17/2015 190 6
Vinyl Chloride TMW-1 03/17/2015 11 0.03
2-Methylnaphthalene TMW-1 03/17/2015 42 30
1,2-Dichloroethane TMW-2 03/17/2015 1.7 0.4
Groundwater contaminants with potential for vapor intrusion (“VI”) in micrograms per
liter (the equivalent of parts per billion), the VI screening levels for which are derived from the
Residential VI Screening Levels of the Division of Waste Management (June, 2014 version):
Groundwater
Contaminant with
Potential for VI
Sample
Location
Date of
Sampling
Concentration
Exceeding
Screening
Level (µg/L)
Residential VI
Screening
Level1
(µg/L)
Naphthalene TMW-1 03/17/2015 190 34.8
Vinyl Chloride TMW-1 03/17/2015 11 1.47
1,2,4
Trimethylbenzene
TMW-1 03/17/2015 290 5.8
Ethylbenzene TMW-1 03/17/2015 60 34.9
Total Xylenes TMW-1 03/17/2015 171.8 98.5
1 Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels
displayed for carcinogens are for a 1.0E-5 lifetime incremental cancer risk
Soil contaminants in milligrams per kilogram (the equivalent of parts per million), the
screening levels for which are derived from the Preliminary Residential Health- Based Soil
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Remediation Goals of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section (March,
2015 version):
Soil
Contaminant
Sample
Locatio
n
Depth
(ft)
Date of
Sampling
Concentration
Exceeding
Screening
Level
(mg/kg)
Residential
Screening
Level1
(mg/kg)
Naphthalene SB-5 8-9 02/07/2007 4.61 3.8
1,2,4-
Trimethylbenzene
SB-5 8-9 02/07/2007 23.4 11.6
1Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels
displayed for carcinogens are for a 1.0E-5 lifetime incremental cancer risk.
9. For purposes of this Agreement DEQ relies on Prospective Developer’s
representations that Prospective Developer's involvement with the Property has been limited to
obtaining or commissioning the Environmental Reports, preparing and submitting to DEQ a
Brownfields Property Application dated April 6, 2015, and the following:
a. On December 31, 2014, Prospective Developer entered into a contract to
purchase the Property.
b. On May 15, 2015, Prospective Developer purchased the Property.
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);
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b. As a result of the implementation of this Agreement, the 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 Property will produce a public benefit
commensurate with the liability protection provided to 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 Property; and
e. Prospective Developer has complied with all applicable procedural
requirements.
11. The Parties agree that a $30,000 “Redevelopment Now” fee Prospective Developer
has paid suffices as the $2,000 fee to seek a brownfields agreement required by NCGS § 130A-
310.39(a)(1), and, within the meaning of NCGS § 130A-310.39(a)(2), the full cost to DEQ and
the North Carolina Department of Justice of all activities related to this Agreement, unless a
change is sought to a Brownfield 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 Property proposed herein would provide the following
public benefits:
a. an increase in the Property’s productivity;
b. a spur to additional community investment and redevelopment, through
improved neighborhood appearance and otherwise;
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c. the creation of public space and enhancement of the Property’s streetscape;
d. an increase in tax revenue for affected jurisdictions;
e. additional multi-family residential options 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 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 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 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 Property suitable for the uses specified in this Agreement while fully
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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protecting public health and the environment. All references to DEQ shall be understood to
include any successor in function.
a. No use may be made of the Property other than for hotel, institutional, office,
restaurant, retail, multi-family residential, parking, and, with prior written DEQ approval, other
commercial uses.For purposes of this Agreement, the following definitions apply:
i. “Hotel” refers to means a building containing more than four
individual rooms that provides overnight lodging and potentially dining or conference facilities
along with reservation, cleaning, utilities and on-site management and reception services for
paying customers;
ii. “Institutional” refers to uses related to educational, academic, cultural,
technology, research and other similar pursuits, including without limitation laboratories and
similar research facilities, museums, galleries, performance spaces, and classroom or clinical
educational facilities.
iii. “Multi-family residential” refers to use of units in multi-unit buildings
as permanent dwellings (either for sale or for rent);
iv. “Office” refers to the rendering of business or professional services;
v. “Parking” refers to the temporary accommodation of motor vehicles in
an area designed for same.
vi. “Restaurant” refers to a business where meals are prepared and served
to paying customers (including mobile restaurants such as food trucks); and
vii. “Retail” refers to the sale of goods, products, entertainment or
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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merchandise directly to the consumer including the sales of food and beverage (including
without limitation alcoholic beverage) products.
For the avoidance of doubt, each of the above-defined uses shall also be defined
to include infrastructure associated with such uses.
b. Physical redevelopment of the Property may not occur other than in accord, as
determined by DEQ, with an 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 Property, the
timing of redevelopment phases, and addresses health, safety and environmental issues that may
arise from use of the 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 7 above; and
iii. contingency plans for addressing newly discovered potential sources
of environmental contamination (e.g., tanks, drums, septic drain fields).
c. Groundwater at the Property may not be used for any purpose without the
prior written approval of DEQ.
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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d. None of the contaminants known to be present in the environmental media at
the Property, as described in paragraphs 7 and 8 of this Agreement, may be used or stored at the
Property without the prior written approval of DEQ, except:
i. in de minimis amounts for cleaning and other routine housekeeping
activities;
ii. as component constituents of articles, equipment and materials used or
sold in connection with uses permitted under this Agreement, such as in consumer products,
stainless steel or building materials; and/or
iii. except as fuel or other fluids customarily used in vehicles, landscaping
equipment, elevators or small quantity emergency generators.
For the avoidance of doubt, this paragraph 15.d. is not intended to prevent the use,
storage or other handling of any particular materials or constituents on the Property. Instead, it is
intended to allow DEQ to review and approve of methods and procedures for the handling of
materials or constituents so as to assist DEQ, if necessary, in reasonably distinguishing such
materials or constituents from contamination at the Property predating the effective date of this
Agreement.
e. The Property may not be used for agriculture or grazing, without the prior
written approval of DEQ.
f. The Property may not be used for childcare centers or schools, without the
prior written approval of DEQ.
g. No later than 30 days after the effective date of this Agreement, Prospective
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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Developer shall notify DEQ that it is ready to effect the abandonment of all groundwater
monitoring wells, injection wells, recovery wells, piezometers and other man-made points of
groundwater access at the Property in accordance with Subchapter 2C of Title 15A of the North
Carolina Administrative Code. Unless DEQ notifies Prospective Developer within 10 days of
receiving such notification to refrain from such abandonment, Prospective Developer shall, on a
schedule acceptable to DEQ, effect said abandonment and, within 30 days after doing so, provide
DEQ a report, subject to DEQ approval, setting forth the procedures and results.
h. The owner of any portion of the 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 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 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 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 Property.
j. 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 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 Durham County, certifying that, as of said January
1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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the Durham County Register of Deeds office and that the land use restrictions are being
complied with, and stating:
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 Property during the previous calendar year; and
ii. the transferee’s name, mailing address, telephone and facsimile
numbers, and contact person’s e-mail address, if said owner transferred any part of the Property
during the previous calendar year.
In lieu of submissions of LURUs by particular owners, a property owners association or
other entity may submit the same on behalf of some or all owners of the Property, if said
association or entity: (i) has accepted responsibility for LURU submission pursuant to a
notarized instrument that includes, at a minimum, the name and mailing address, and if available,
telephone and facsimile numbers and e-mail address, of each owner on whose behalf the LURU
is being submitted, or is responsible for LURU submission on behalf of such owners pursuant to
a condominium declaration, “covenants, conditions and restrictions” or a functionally equivalent
instrument recorded in the land records of Durham County; and (ii) provides, contemporaneously
with submission to DEQ, a copy of each LURU submitted to each party on whose behalf it is
submitted.
k. Any deed or other instrument conveying an interest in the Property shall
contain the following notice: “The property which is the subject of this instrument is subject to
the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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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. If DEQ issues prior, written
approval, an owner may use the following mechanisms to comply with the obligations of this
paragraph, subject to the terms and conditions that DEQ may establish in such approval: 1) If
every lease and rider is identical in form with regard to the notice required by this section the
owner 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 (2) the owner may provide abstracts of leases or the portion of
such leases as are necessary to demonstrate compliance with this Section, rather than full copies
of said leases, to the persons listed in Section XV.
16. The desired result of the above-referenced land use restrictions is to make the
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 Division of
Waste Management VI Guidance, as embodied in their most current version.
18. The consequence of achieving the desired results will be that the 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
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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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 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 Property under applicable law, which access is to be
conducted 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 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 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 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 Property. Pursuant to NCGS
§ 130A-310.35(b), within 15 days of the effective date of this Agreement Prospective Developer
shall record the Notice of Brownfields Property in the Durham County, North Carolina, register
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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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 Property shall contain the following notice: “The property which is the subject of
this instrument 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. If DEQ
issues prior, written approval, Prospective Developer may use the following mechanisms to
comply with the obligations of this paragraph, subject to the terms and conditions that DEQ may
establish in such approval: (i) If every lease and rider is identical in form with regard to the
notice required by this Section, 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 XVI (Notice and Submissions); or (ii)
Prospective Developer may provide abstracts of leases or the portion of such leases as are
necessary to demonstrate compliance with this section, rather than full copies of said leases, to
the persons listed in Section XVI.
22. The Prospective Developer shall ensure that a copy of this Agreement is provided to
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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any current lessee or sublessee on the 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 Property with respect to the
manner in which regulated substances are handled at the 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 Property by DEQ and further agrees
not to interfere with any such assessment or remediation. DEQ agrees to use reasonable efforts
to minimize any interference with operations on the Property by any such 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 Property, the Prospective Developer shall
immediately take all appropriate action to prevent, abate, or minimize such release or threat of
release, and 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. In
addition, the Prospective Developer 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 Property other than that committed to in the
Brownfields Property Application dated April 6, 2015 by which it applied for this Agreement.
That use is for hotel, institutional, office, restaurant, retail, multi-family residential, parking, and,
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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with prior written DEQ 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 Property and to its qualification for this
Agreement, including the requirement that it not have caused or contributed to the contamination
at the 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 Property except as
specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the 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 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 Property, in
which case the Prospective Developer shall be responsible for remediation of the Property to
unrestricted use standards.
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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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 Property.
e. New information indicates the existence of previously unreported
contaminants or an area of previously unreported contamination on or associated with the
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 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 Property or (ii) the failure of remediation to mitigate risks to the extent
required to make the Property fully protective of public health and the environment as planned in
this Agreement.
g. The Department obtains new information about a contaminant associated with
the Property or exposures at or around the Property that raises the risk to public health or the
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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environment associated with the Property beyond an acceptable range and in a manner or to a
degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under NCGS § 130A-310.35.
26. Except as may be provided herein, DEQ reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
27. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, NCGS § 113A-1, et seq.
28. Consistent with NCGS § 130A-310.33, the liability protections provided herein, and
any statutory limitations in paragraphs 25 through 27 above, apply to all of the persons listed in
NCGS § 130A-310.33, including future owners of the property, to the same extent as Prospective
Developer, so long as these persons are not otherwise potentially responsible parties or parents,
subsidiaries, or affiliates of potentially responsible parties.
X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
29. In consideration of DEQ’s Covenant Not To Sue in Section IX of this Agreement
and in recognition of the absolute State immunity provided in NCGS § 130A-310.37(b), the
Prospective Developer hereby covenants not to sue and not to assert any claims or causes of
action against DEQ, its authorized officers, employees, or representatives with respect to any
action implementing the Act, including negotiating, entering, monitoring or enforcing this
Agreement or the above-referenced Notice of Brownfields Property.
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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XI. PARTIES BOUND
30. This Agreement shall apply to and be binding upon DEQ, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party’s signatory to this
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
XII. DISCLAIMER
31. This Agreement reflects DEQ’s evaluation of the risks to public health and the
environment and the fitness of the Property for a particular use only with respect to the
environmental conditions addressed by this Agreement and only to the extent provided
herein. Further, this Agreement is not a waiver of Prospective Developer’s duty to seek
applicable permits or of the provisions of N.C.G.S. § 130A-310.37.
32. Except for the Land Use Restrictions set forth in paragraph 15 above and NCGS §
130A-310.33(a)(1)-(5)'s provision of the Act's liability protection to certain persons to the same
extent as to a prospective developer, no rights, benefits or obligations conferred or imposed upon
Prospective Developer under this Agreement are conferred or imposed upon any other person.
XIII. DOCUMENT RETENTION
33. The Prospective Developer agrees to retain and make available to DEQ all business
and operating records, contracts, site studies and investigations, remediation reports, and
documents generated by and/or in the control of the Prospective Developer, its affiliates or
subsidiaries relating to storage, generation, use, disposal and management of regulated
substances at the Property, including without limitation all Material Safety Data Sheets or Safety
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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Data Sheets, for six (6) years following the effective date of this Agreement, unless otherwise
agreed to in writing by the Parties. Electronic retention of records meets the requirements of this
paragraph. 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 non-
privileged documents at the expense of DEQ. To the extent DEQ retains any copies of such
documents, Prospective Developer retains all rights it then may have to seek protection from
disclosure of such documents as confidential business information.
XIV. PAYMENT OF ENFORCEMENT COSTS
34. If the Prospective Developer fails to comply with the terms of this Agreement,
including, but not limited to, the provisions of Section V (Work to be Performed), it shall be
liable for all litigation and other enforcement costs incurred by DEQ to enforce this Agreement
or otherwise obtain compliance.
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:
Joe Ghiold (or successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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Mr. Adam Golden (or successor in function)
NR Van Alen Property Owner LLC
1057 E. Morehead Street, Suite 300
Charlotte, NC 28204
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 Agreement from DEQ. Prospective Developer shall expeditiously
sign the Agreement following such receipt in order to effect the recordation of the full Notice of
Brownfields Property within the statutory deadline of 15 days following such receipt.
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
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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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 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 service of the complaint on it.
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 to occur of the following: 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 Property is located, conspicuous
posting of a copy of said summary at the Property, and mailing or delivery of a copy of the
summary to each owner of property contiguous to the 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.
Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16
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IT IS SO AGREED:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
By:
____________________________________________________________________________
Michael E. Scott Date
Acting Director, Division of Waste Management
IT IS SO AGREED:
NR Van Alen Property Owner LLC
By:
____________________________________________________________________________
Adam Golden Date
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EXHIBIT C
LEGAL DESCRIPTION
Parcel 1: BEGINNING at a concrete monument in the Western right-of-way line of South Roxboro Street,
said concrete monument being located South 30-18-00 West 20.80 feet from the point of intersection of
the South line of Dillard Street and the West line of South Roxboro Street, and running thence along and
with the West line of South Roxboro Street, South 30-18-00 West 211.50 feet to a concrete monument in
the West line of South Roxboro Street along and with the North line of Lot 4, North 59-14-35 West
285.61 feet to an iron stake; thence along the East line of Lot 2, North 28-13-33 East 218.65 feet to an
iron stake in the South line of Dillard Street; thence along the South line of Dillard Street along a curve to
the right, the radius of which is 1,879.86, and arc distance of 30.00 feet to the point of tangency of said
curve; thence continuing along the South line of Dillard Street South 61-57-00 East 242.95 feet to a
concrete monument, the point of curvature of Curve C-50 to the right; thence along said curve C-50, the
radius of which is 20.00 feet, an arc distance of 32.20 feet to the place and point of BEGINNING,
containing 65,233 square feet, more or less, and being all of Lot 1, Block L, Project 1, or N.C. R-16, of
the Property of the Redevelopment Commission of the City of Durham as surveyed by George C. Love,
Jr., R.L.S., dated November 4, 1967, Job. No. 3240J, and being recorded in the office of the Register of
Deeds of Durham County in Plat Book 59, at Page 78, to which reference is hereby made for a more
particular description.
Parcel 2: BEGINNING at a concrete monument in the East right-of-way line of South Mangum Street,
said concrete monument being located South 19-22-28 West 20.85 feet from the point of intersection of
the East line of South Mangum Street and the South line of Dillard Street, and running thence along and
with Curve No. C-45 to the right, the radius of which is 20.00 feet, an arc distance of 32.25 feet to the
point of tangency of said curve; thence continuing along the South line of Dillard Street South 68-14-00
East 109.65 feet to a concrete monument, the point of curvature of Curve C-48 to the right; thence along
and with C-48 to the right, the radius of which is 1,879.86 feet an arc distance of 176.15 feet to an iron
stake; thence along and with the West line of Lot 1, South 28-13-33 West 218.65 feet to an iron stake;
thence along and with the North line of Lot 3, North 70-58-00 West 272.14 feet to a concrete monument
in the East right-of-way line of South Mangum Street; thence along and with said East line of Mangum
Street North 19-22-28 East 217.86 feet to the place and point of BEGINNING, containing 66,184.7
square feet, more or less, and being all of Lot 2, Block L, Project 1, or N.C. R-16, of the Property of the
Redevelopment Commission of the City of Durham as prepared by George C. Love, Jr., R.L.S., dated
November 4, 1967, Job. No. 3240J, which is recorded in the office of the Durham County Register of
Deeds in Plat Book 59, at Page 78, to which reference is hereby made for a more particular description.
Parcel 3: BEGINNING at a concrete monument in the East right-of-way line of S. Mangum Street, said
concrete monument being at the Southwest corner of Lot 2, Block L, and running thence along and with
the South line of Lot 2, South 70-58-00 East 272.14 feet to an iron stake, the Southwest corner of Lot 1
and the Northwest corner of Lot 4; thence along and with the West line of Lot 4, South 21-25-41 West
269.29 feet to an iron stake in the North right-of-way line of the East-West Expressway; thence along and
with the North line of the East-West Expressway North 67-22-00 West 239.58 feet to a concrete
monument at the point of curvature of curve C-70 to the right; thence along said Curve C-70 to the right,
the radius of which is 20.00 feet, an arc distance of 29.93 to the point of tangency of said curve; thence
along and with the East right-of-way line of South Mangum Street North 18-22-44 East 234.77 feet to a
concrete monument, the place and point of BEGINNING, containing 69,123.9 square feet, more or less,
and being all of Lot 3, Block L, Project 1, or N.C. R-16, of the Property of the Redevelopment
Commission of the City of Durham, prepared by George C. Love, Jr. R.L.S., dated November 4, 1967,
Job No. 3240J, which is recorded in the office of the Register of Deeds of Durham County in Plat Book
59, on Page 78, to which reference is hereby made for a more particular description.
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Parcel 4: BEGINNING at a concrete monument in the West line of South Roxboro Street at the Southeast
corner of Lot 1, Block L, and running thence along and with the West line of South Roxboro Street, South
27-28-00 West 211.92 feet to a concrete monument, the point of curvature of Curve No. C-69 to the right;
thence along said Curve C-69 to right, the radius of which is 20.00 feet, an arc length of 29.73 feet to a
concrete monument, the point of tangency of said curve; thence along and with the North right-of-way
line of the East-West Expressway North 67-22-00 West 240.00 feet to an iron stake; thence along and
with the East line of Lot 3, Block L, North 21-25-41 East 269.29 feet to an iron stake, the Southwest
corner of Lot 1, and the Southeast corner of Lot 2; thence along and with the South line of Lot 1, South
59-14-35 East 285.61 feet to the place and point of BEGINNING, and containing 67,536.5 square feet,
more or less, and being all of Lot 4, Block L, Project 1, or N.C. R-16, or the Property of the
Redevelopment Commission of the City of Durham as prepared by George C. Love, Jr., R.L.S., dated
November 4, 1967, Job No. 3240J and recorded in the office of the Register of Deeds of Durham County
in Plat Book 59, on Page 78, to which reference is hereby made for a more particular description.