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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 NBP Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 1 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, NBP Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 2 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; NBP Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 3 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 NBP Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 4 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 NBP Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 5 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. NBP Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 6 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 NBP Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 7 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 Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 2 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. Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 3 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 Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 4 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 Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 5 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. Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 6 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 Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 7 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); Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 8 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; Elkin Chrysler Redevelopment, BF# 19031-15-032, 3-16-16 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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 25 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 26 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 Member X X X X X X X X X X X X X X X X X O H P O H P O H P X X OHP OHP OHP OH P OHP OHP OHP O H P O H P O H P O H P X SC A L E 1 " = 6 0 ' 120' 0 60 ' X X OHP WUGTSANSWDETCTUGPG ST M W R : \ 9 0 2 \ 3 7 2 8 9 - V a n A l e n \ D W G \ B r o w n f i e l d P l a t \ 3 7 2 8 9 - B F P L A T . d w g | P l o t t e d o n 3 / 2 5 / 2 0 1 6 2 : 4 0 P M | b y J o s h u a T e a b o DATE: S C A L E : J.N.:SHEET O F DRAWN BY: C H E C K B Y : CITY OF DURHAM D U R H A M C O U N T Y MARCH 25, 2016 1 1 KS372891"= 60' DAP R : \ 9 0 2 \ 3 7 2 8 9 - V a n A l e n \ D W G \ B r o w n f i e l d P l a t \ 3 7 2 8 9 - B F P L A T . d w g | P l o t t e d o n 3 / 2 5 / 2 0 1 6 2 : 4 1 P M | b y J o s h u a T e a b o DA T E : S C A L E : J. N . : SH E E T O F DR A W N B Y : C H E C K B Y : CIT Y O F D U R H A M D U R H A M C O U N T Y M A R C H 2 5 , 2 0 1 6 2 2 KS 3 7 2 8 9 1" = 6 0 ' D A P 1 PPAB 3187503v1 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. 2 PPAB 3187503v1 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.