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HomeMy WebLinkAboutNCG080780_COMPLETE FILE - HISTORICAL_20140909STORMWATER DIVISION CODING SHEET RESCISSIONS PERMIT NO. DOC TYPE ❑COMPLETE FILE -HISTORICAL DATE OF RESCISSION ❑ DI y ()Q 09 YYYYMMDD NCDENR North Carolina Department of Environment and Natural Resources Pat McCrory Governor Mr. John C. Pfleger 310 Sampson Street Wilmington, NC 28401 Dear Mr. Pfleger: John E. Skvarla, III Secretary September 9, 2014 Subject: Rescission of NPDES Stormwater Permit Certificate of Coverage Number NCGO80780 Wilmington Location New Hanover County On August 1, 2014 the Division of Energy, Mineral and Land Resources received your request to rescind your coverage under Certificate of Coverage Number NCG080780. In accordance with your request, Certificate of Coverage Number NCGO80780 is rescinded effective immediately. Operating a treatment facility, discharging wastewater or discharging specific types of stormwater to waters of the State without valid coverage under an NPDES permit is against federal and state laws and could result in fines. If something changes and your facility would again require stormwater or wastewater discharge permit coverage, you should notify this office immediately. We will be happy to assist you in assuring the proper permit coverage. If the facility is in the process of being sold, you will be performing a public service if you would inform the new or prospective owners of their potential need for NPDES permit coverage. If you have questions about this matter, please contact us at 919-707-9200, or the Stormwater staff in our Wilmington Regional Office at 910-796-7215. Sincerely, for Tracy E. Davis, PE, CPM, Director Division of Energy, Mineral and Land Resources cc: WiRO — D. Sams Stormwater Permitting Program Central Files - w/attachments Deborah Reese, DEMLR Budget — Please waive fees Division of Energy, Mineral, and Land Resources Energy Section • Geological Survey Section • Land Quality Section 1612 Mail Service Center, Raleigh, North Carolina 27699-1612.919-707-92001 FAX: 919-715-8801 512 North Salisbury Street, Raleigh, North Carolina 27604 • Internet: hftp://Portal.ncdenr.org/webAr/ An Equal Opportunity I Affirmative Action Employer - 50% Recycled 110% Post Consumer Paper Alexander, Laura From: Pickle, Ken Sent: Monday, September 08, 2014 3:01 PM To: Alexander, Laura Subject: RE: Stormwater permit name change request: RETURNED Follow Up Flag: Follow up Flag Status: Flagged Laura, I think we should rescind this permit based on the documentation already submitted to us, and without further involvement from WIRO. I consider the following in arriving at this decision: • This action began as a request to transfer coverage under an existing NCG08, with original permittee being Waste Industries. • We learned that Waste Industries is no longer on the site; and that the new tenant, Cape Fear Paving, is not eligible for coverage under an NPDES stormwater permit based on the current use of the premises as a contractor's main office and yard. We returned the Name/Ownership transfer request unprocessed after telephone discussions with Cape Fear Paving, and email notification of Waste Industries. 1 have copied Dan Sams of WIRO on several pieces of email correspondence without comment from his office. I think it very unlikely that it's worth their time to go out to this site to see if there are any reasons we might keep Waste Industries covered under their current COC while Cape Fear Paving is in control of the site. In my judgment it's certainly quicker, and therefore better to move ahead without further WIRO manpower involvement. So, please go ahead and rescind the permit based on the rescission request in hand and the email correspondence record below. (Please print and include this email string in our file for NCG080780.)� Tha nks, Ken From: Alexander, Laura Sent: Monday, September 08, 2014 2:01 PM To: Pickle, Ken Subject: RE: Stormwater permit name change request: RETURNED Ken, « File: Waste Industries Rescission Request.pdf >> John Pfleger sent a rescission request reference your below email. There is also a lease agreement attached. Let me know if I can go ahead and rescind or if I need to send information to local R0. Thank you! i f .._ Laura From: Pickle, Ken Sent: Thursday, July 24, 2014 2:25 PM To: keiths@capefearpaving.com; john.pfleger@wasteindustries.com Cc: Alexander, Laura; Sennett, Bradley; Sams, pan Subject: FW: Stormwater permit name change request: RETURNED Good afternoon, Mr. Stark, Thank you for your time this afternoon. We are returning unprocessed your request to transfer coverage under our stormwater permit Certificate of Coverage NCGO80780. As per your description of the commercial activities at 310 Sampson Street in Wilmington, and as I suspected, your facility is not a regulated industrial activity under the NPDES Stormwater Permitting Program rules. Typically a contractor's home office and yard are not regulated activities under the federal NPDES rules. I have copied Mr. John Pfleger of Waste industries to alert him to our action on your joint request to transfer coverage. Since we are denying the request to transfer coverage, Waste Industries remains the permittee of record. We will of course entertain a separate request from Waste Industries to rescind their permit for _this _sit e since there is no longer any industrial activity that would be regulated for stormwater discharges under NPDES rules. Unfortunately, our internal procedures will not allow me to move ahead on the obvious path without Waste Industries specific separate request to rescind the permit. Our permit rescission request form may be down loaded from this website location: http://portal.ncdenr.org/web/Ir/npdes-stormwater Gentlemen, please contact me if you have any questions or if I can help speed along a request to rescind the permit for Waste Industries. Ken Ken Pickle Environmental Engineer NCDENR I DEMLR I Stormwater Permitting Program 1612 Mail Service Center, Raleigh, NC 27699-1612 512 N. Salisbury St, Raleigh, NC 27604 Phone: (919)807-6376 Fax: (919) 807-6494 Email: ken. i)ickle@ncdenr.aov Website: htto://portal.ncdenr.org/web/IrLstormwater ** Email correspondence to and from this address is subject to the North Carolina Public Records.Law and may be disclosed to third parties unless the content is exempt by statute or other regulations.** From: Pickle, Ken Sent: Wednesday, July 16, 2014 10:14 AM To: 'keiths@capefearpaving.com' Cc: Alexander, Laura; Bennett, Bradley; Georgoulias, Bethany Subject: Stormwater permit name change request 98 r, Good morning Mr. Stark, RE: Stormwater permit Certificate of Coverage NCG080780; your request to transfer coverage I have called for you this morning, and left a message with your office. I'm not sure you need coverage under our stormwater Genera! Permit for the operation of a general contractor's office and yard. And I think we should speak voice -to -voice to clarify this for me. We are in receipt of your request to transfer coverage under our stormwater permit from Waste Industries LLC to Cape Fear Paving LLC, signed by you and John Pfleger on November 20, 2013. Assuming that you sent it to us sometime around the signature date, I'm not sure why we have delayed responding until now. My apologies for the delay. The application has been processed by our staff and has come to me for signature. I note that it appears that your business activity is different in character from the Waste Industries operation that preceded you on the site. Our permits are based on matching certain categories of industrial activity with certain General Permits lri order to control the potential for stormwater pollution associated with the particular industrial activity at those sites. (NCG080000 matches up with the prior Waste Industries activity at your site.) A general contractor's office and vard are not usuallv captured by the federal regulations that underlie our program. It's not clear to me that you need coverage under our permit. Considering activities that might be related to your operations, coverage under a stormwater permit would be required if: • You were operating an asphalt plant at the site. If you are, coverage under NCG16-Asphalt is appropriate, not a transfer of NCG08. • You were operating either a fixed or portable ready -mix concrete plant at the site. If you are, coverage under NCG14-Ready-Mix Concrete is appropriate, not NCG08. • The site was home base for a fleet of vehicles, and you were regularly performing vehicle maintenance at the site. If you are, NCG08 is the appropriate General Permit for stormwater discharges, and we could make the transfer from Waste Industries to Cape Fear Paving. Some types of vehicles would qualify you for this permit, and some other types would not. "Vehicle maintenance" is defined in federal rule to include washing vehicles and fueling vehicles, as well as what you might normally think of as vehicle maintenance. • You were engaged in an activity similar to the Waste Industries activity that preceded you. Again, in that case NCG08 would be appropriate. In one way this bullet is a slightly different res-statement of the bullet immediately above. • You were engaged in some sort of manufacturing at the site. In that case we have 20 General Permits specific for the industrial manufacturing sector that you are engaged in. Initially the "Paving" in your company name caught my eye. Then the description of the permitted activities in your lease with Waste Industries served as corroborating information, it seemed to me. I will hold this request for permit coverage for a few more days, but then I intend to return it without granting the permit transfer. Please contact me to discuss. I'll be out of the office this Thursday (tomorrow) through next Monday. Unless I hear from you, I will return the application on next Wednesday. FYI, if we deny your transfer request then Waste Industries remains our permittee, and it could be construed that they are still obligated to comply with the permit until they request, and we grant, rescission of the Certificate of Coverage under our permit. I realize that this aspect may not directly concern you. Ken Ken Pickle Environmental Engineer NCDENR I DEMLR I Stormwater Permitting Program 1612 Mail Service Center, Raleigh, NC 27699-1612 512 N. Salisbury St, Raleigh, NC 27604 Phone: (919) 807-6376 Fax: (919)807-6494 Email: ken. pickleCa ncdenr.Qov Website: htto://aorta1.ncdenr.orn/web/lr/stormwater ** Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties unless the content is exempt by statute or other regulations.** 4 r. t �'� • Division of Energy, Mineral & Land Resources Land Quality Section/Stormwater Permitting Program NCDENRNational Pollutant Discharge Elimination System ErMFouw[,� q,+o NRllA4. P!`Al�C9 RESCISSION REQUEST FORM FOR AGENCY USE ONLY Date Received Year Month Day RECEIVED Please fill out and return this form if you no longer need to maintain your NPDES stormVWRpermit. STORMWq� NI)ERM17T N 1) Enter the permit number to which this request applies: G Individual Permit (or) Certificate of Coverage N I C I 5 I I I I I N I C I G 1 0 1 8 1 0 7 8 0 2) Owner/Facility Information: * Final correspondence will be mailed to the address noted below Owner/Facility Name Waste Industries LLC Facility Contact John C. PFleger Street Address 310 Sampson Street City Wilmington State NC ZIP Code 28401 County New Hanover E-mail Address 'ohn. pfle er@wasteindustries. Telephone No. 919 877-7523 Fax: 919 32S-3018 com 3) Reason for rescission request (This is required information. Attach separate sheet if necessary): ❑ Facility closed or is closing on . All industrial activities have ceased such that no discharges of stormwater are contaminated by exposure to industrial activities or materials. ❑ Facility sold to on . If the facility will continue operations under the new owner it may be more appropriate to request an ownership change to reissue to permit to the new owner. ® Other: Facility is leased to Cape Fear Paving LLC, utilized as contractors corporate office no longer has industrial activity meeting permitting requirements under NPDES rules. Lease_ attached. 4) Certification: I, as an authorized representative, hereby request resdssion of coverage under the NPDES Stormwater Permit for the subject facility. I am familiar with the information contained in this request and to the best of my knowledge and belief such information is true, complete and accurate. Signature Print or type name of person signing above Date 7/29/14 Sr. EHS Specialist Title Please return this completed rescission request form to: NPDES Permit Coverage Rescission Stormwater Permitting Program 1612 Mail Service Center Raleigh, North Carolina 27699-1612 1612 Mail Service Center, Raleigh, North Carolina 27699-1612 Phone: 919-807-63001 FAX. 919-807-6492 An Equal Opportunity 1 Affirmative Action Employer r I,EAS14" AGItEEiMENT TI11S LEASE: AC1tEKAIENT ("Lease") Is made and entered into ihis3tdday of S� 2012 by and between WASTES INDUSTRIES. U-C. a North Carolina limited liability company ("Landlord"), and CAPE? Ir1 AR PAVING. LLC. A North Carolina limited liability company ("'Tenant''). I11,CITA LS: Landlord, for and in consideration of the rents and :it I other charges and payments hereunder and of the covenants, agrccmcnis, terms, provisions and conditions to be kept and performed hereunder by Tenant, detnises and [cases to 'Tenant, anti 'tenant hereby hires and lakes from Landlord, the: premises described below ("Premises"), subject to al matters hereinafter set forth and upon and siibjeci in the covenants, agreemenis, iertlts, provisions and conditions of lhis Lease for the term hereinafter stated. iNO«' T11I;Itl?.FORI; Landlord and Tenant agree to the Pollowing, unless Othcrwisc specifically modified by pi[)vision!; of this Lease- I'E14MS. 1.1 Premises. The Premises demised by this Lease is that land lying; and being in New Hanover County, North Carolina, and being; more parlicularly de.Kcrihcd on Exhil)ii A attached hereto and made a part hereof, such land being located at 310 Sampson street, Wilmington, North Carolina. 1.2 II case Tenn The teen of this Lease shall lie fora period of five (5) years commencing August I, 2012 unleas othurwise terminated or extended as provided for herein ("'Tenn"). Upon mutual written agreement of the parties, the icrin of this Lease may he extended. 1.3 Rent. The basic rent for the first Lease year is $120.000.00 payable in equal monthly install ii eats ol'one; Iwclfill (1/12) of such annual amount cacti month. In addition to the basic rent. Tendril shell pay Properly -Taxes, Insurance, and any other charges required to be paid by Tenant hereunder (all sometimes collectively tieing; referred tons "Iten 1.4 Tenant's Limited Right to Tcrlilin.ite Lcasc. Simultaneously with executing; Illis Lease, theTcnant has enicred into an Operation Agreement with Landlord's affiliate to permit Tcnanl to operate certain btisincbs operations oil Ile real property located al 3612 Highway 421. Wilmington North Carolina, pursuant to the tenns therein. The Operation Agrecinew contains a provision entitling; Landlord's affiliate to terminate the Operation Agreement For convenience upon a ninety (90) day written notice to 'Tenant. In the event that Landlord's affiliate exercises this riOil to terminate the Operation Agreement for convenience, thenTenant, under this Lease, shall have the right to Ienninate this Lease upon a ninety (90) day written notice to the Landlord. REAL-6816-53- 376080.v3 2. DELIVERV Co POSSESSION. if Landlord is unable to deliver possession of the Premises to 'Tenant on the Lease Commencement Date this Lease shall not be void or voidable, nor shall Landlord be Iiable to Tenant for any loss or damage resulting therefrom, ruir shall the expiration date of the term be extended, but in such event Tenant shall not be linhie for any Rent or other charges due under this Lease until such time as Landlord tenders delivery of possession of the Premises to Tenant. Should Landlord tender possession ofthe Premises to Tenant prior to the date specified as the Lease Commencement Date, and Tenant elects to accept such prior tender, such prior occupancy shall be subject to all terms, covenants and conditions cif this Lease, including the payment of Rent_ Landlord and 'Tenant acknowledge and agree that Tenant shall accept possession of the Premises as of the Lease commencement Date and that payment of Rent shall commence on such date notwithstanding; that Tenant shall not have completed the upfit of the Prernisr;s. 3. PAYMENT Olr RENT. Tenant shall pay Landlord the Rent and any other payments clue tinder this Lcasc without prior notice, deduction or offset, in lawful money of the United States in advance un or belurc the first flay of each month, except that the first niontlr's Rent shall be paid upon the execution hereof, at the address noted in Section 26. or to such other party or at $Lich other place as Landlord may hereafter from time to Iitne designate in %%-riling. Rent and other amounts due tinder this Lease for any partial month at the beginning; or end of the Lease terns shall lie prorated. 4. 11CRA1117E.l) USES. The Premise.,; are to be used only for purpuscs of opernfing'I'enant's ongoing general contractor business specializing in site work, clearing and grubbing, demolition. storm water, water and sewer, sidewalks, curb and gutter, paving and related businesses ("Pennitted Uses") and for no other business or purpose without the prior written consent of Landlord. No act shall be dome in or- about the Premises that is unlawlirl Ur that will increase the existing rate of insurance on the Building. In the event of a breach of this covenant, "Tenant sliall pay to Landlord any and all increases in insurance premiums r4s1111ing From such breach. 'Tenant shall not commit or allow to be committed any waste upon the Premises, nr any public or private. Tenant, at its expense, shall comply with all laws relating to its use or occupancy of the Premises anti shall maintain the safety, care and cleanliness of the Premises or the Building to ensure the preservation of good order therein. 5. COMPLIANCE WITH ENVIRONA EINTAL LAWS. In its use and occupancy of the I'reniises. Tenant shalt at all times obey and comply its all material respects with all lawful requirements, rules, regulations, and ordinances of all legally constituted authorities, existing at any time and in any wiry affecting the Premises or the use of the Premises by Tenant. Without limiting the foregoing, Tenant further covenants to keep and Maintain the Premises in compliance with all applicable federal, stateand local laws or ordinances pertaining to or regulating the transportation, storage, use or disposal of Hazardous Materials ("Environmental Laws"). If during the Term ol'this Lease Hazardous Materials shall containintite the Premises or the soil or surface or ground water thereof or thereunder or there shall be any related loss or damage to person(s) or property, except to the extent caused by Landiord,'then Tenant shall: (i) notify Landlord promptly of any release, contamination, claim of contamination. loss or damage, (ii) after consultation with Landlord, cleats tip such release or contamination in compliance with all applicable statutes, regulations and standards, and (iii) f indemnify, defend lend hold Landlord harmless fronn and against any claims, suits, causes of action, loss, damage, costs and Pecs, including attorneys' and other professionals' and engineering fees and costs, arising from or connc.-c:ted in wiy way with any such release or contamination, claim of contamination, clean up of such release or contamination or other loss or dan]agc. including, without liniiintion, the casts and expenses of environmental assessment and testing. 'this provision shall survive termination of this Lease. As used herein, the term "Haiardous Materiah(s)" shall mean any substance or material which has been determined by any state, recleral or local governmental alahurity to be capable of poSiTi a risk of injury to health, surety or property, including without limitation asbestos, peiroIcon] products, biological and medical wastes. samples or substances, explosive, corrosive or radioactive materials and all of those materials and substances designaied as ha7iii-dour or tnsi►: as defined in or under any applicable federal, stale or local law, and the applicable regulations thereunder, and any other material which any governmental agency or unit having or claiming appropriate jurisdiction shall determine from time to time to be hantttiil, tonic or dangerous. f. 1,A'r[; CHARGES. Tenant hereby acknowledges that Rite payment to Landlolci of Rent or other sums clue hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount ofwhich will he extremely difficult to ascertain. If'any Rent or other SUM title froitl Tenant is not received by Landlord or Landlord's designated agent when due, then Tenant shall pay to Landlord a laie charge equnI to ten percent (10%,) ofsnch overdue 11111C1liiit. plus tiny attorneys' fees and costs incurred by landlord by reason of'Tenanl's Ihilure it) prey (tent and other charges when due hereunder. The parties hereby agree that such late charges represent a fair and reasonable estimate ofthe cost that Landlol'[i will incur by reason of -Tenant's last: payment. Landlord's acccplancc of such late charges shall not constitute a waiver 0rTen ant's default with respect to such overdue .itnounl or cslitip Landlord from exercising tiny of the other - rights and remedies granted hereunder. 7. REPAIRS AND NIA INTENANCIs. Landlord shall maintain, or cruise to he maintained, the roof and the stnicturai components of the building and olhcr structures located on the premises, except any of SUCII repairs rendered necessary by the negligence or willful misconduct ofTenaril, its agenis, customers, employces, indepencicnt c«ntraCturs, gticsts or invitees, the repair of which shall be paid for by Tenant within ten (10) days of Landlord's written demand, Sut�jeet to Landlord's right of access pursuant to Section 15, Tenant shall he exclusively responsible Isar all other maintenance, repair and replacement to the exterior and interior of the Premises. and Landlord shall bt: udder no obligation to inspect the Premises. Tenant shall promptly report in writing to Landlord any defective condition known to it which Landlord is required to repair. and failure to so report such defects shrill n]ake Tenant responsible to Landlord forany liability incurred by Landlord by reason of'such conditions. Te rianl hereby waives the right to make repairs at Landlord's expense under any other law, stattite or ordinilnee now or hereafter in effect. In addition to file firregoing, Tenrint shall he responsible for the repair, replacement and maintenance of ille FIVAC system. Tenant shall obtain an inintlnl maintenance contract for the HVAC system and provide Landlord with it copy of the same. r 8. UTII,I7'IES AND SERVICES. Tenant shall be solely responsible for paying the costs of all electric, water, natural gas (if applicable), telephone and other utility services to the Premises and maintaining and repairing such utility systems. 9. I'll 0PE, RTN' TAXES. "Pruperty "l'akcs" shall mean any )elan ofasscssanent. license, fee, mm tax, levy, penalty (if a result of Tenant's delinquency), or tax (other than Viet income, e_SUIM succession, inheritance, transfer or franchise taxes), imposed l,y any authority having the direct or indirect power to tax, or by any city, county, state or federal government or any improvement or other district or division thereoC, an the Building or any part thereof. the land, the parking area, or any other legal or equituble: interest (if Landlord in the s.arte. Teat.ant shall pay to Landlord, within fifteen (15) (lays of Landlord's delivery to Tenant a copy of the tax bills for all taxes applicable to the Premise% the a1110LIM of such biIIS. Tenant shall pay before delinquent, any and all loxes, levied or assessed. and which becomes payable on "I'en.rnrt's iatverttory, equipment, trade fixtures, leasehold improvements tint) other personal property located in the Premises. I0. LIABILITY 1NSURANCI?. Tenant sitall, at Terimit's expense, ohiain and keel) in force during the term of this Lease, (a) hazard insurance on the Premises and all improvements and fixtures thereon and thereto insuring the saute for its full replacement value; (b) st.utdard fire and extended coverage insurance: on all of its personal property, including removable trade fixtures, located in the Premises and oat its non -building standard leasehold improverricws and all other additions and improvements (including fixtures) made by Tenanl : (c) a policy or policies Of cutttprehensivc general liability insurance, including personal iniarry liability, contractual liability, products and completed operations liability, mach imurannce to afford minimum protection (which may he effected by primary andlor cscess coverage) of'not less than $1,000,000.00 for personal injury or death in any tine occurrence (.vith S2,000,000.00 in umbrella coverage) and ot'not less than $1,000,000.00 [or property damage in any one occurrence (with S2.000,000.00 in urnbrella coverage). -["lie limit orally of such insurance shall not limit the liability orTeliant hereunder. IfTenani fails to procure and maintain such insurance, Landlord may, but shall riot he required to. procure and maintain the same, at 'tenant's expense to be reimbursed by Tenant within tell (10) days of written demand. All insurance required it) be obtained by Tenant hereunder shall be issued by companies acceptable to Landlord. Thirty (30) days prior to the Lcasc Commencement Datc, 'l'cnartt shall deliver to Landlord certificates of-liabihiv insurance: required he:rcin with loss payable clauses satisfactory to Landlord_ Any deduclible under such insurance policy ail excess fir Otte Thousand and Nol100ths Dollars (g1,000.00) must he approved by Landlord in writing prior to issuance ol'such policy. No policy shall be cancelable or subject to reduction of C0%.'C age csce:pt upon thirty (30) days' prior written notice to Landlord. All such policies shall Finite Landlord and its agents :as named insured, shall be written as primary policies not contributing with and not in excess of coverage which Landlord may carry, and shall be tivritten with art insurance carrier satisfactory It? I.aandlord. Tenant shall obtain any revised or increased coverage required by Landlord within thirty (30) days ofamy such notification from Landlord. 11. FIRE, INSURANCi"s - F IX,rURES AND EQUINMENT. Tenant shall maintain in Fiji) force and effect on all 'Tenant's Trade fixtures, equipment and personal property on tine Premises, a policy ofaall risk property insurance covering the full replacement value etfsuch t property. Tcnani shall provide and keep in force Willi companies satisfactory to Landlord, business inicmiption sand/or loss of rental insurance in an amount equivalent to six (6) months Rent which shall not contain a deductible greater than One Thousand Dollars (S1,000.00). Tenant shall furnish Landlord with it Certificate of such insurance naming Landlord as an additional insured. No policy shall be cancelable or subject to reduction of coverage except upon thirty (30) days' prior written notice in Landlord. 12. DAMACI OR DESTRUCTION. Should the Premises be dtamagcd or destroyed by fire or other casualty, Landlord may either (i) terminate this Lease or (ii) upori receipt of insurance proceeds, repair or rebuild the Premises, provided that such insurance: proceeds are sufficient to so repair or rebuild the Premises to substantially original condition. In the event that Landlord elects to repair or rebuild the Premises, Rent will be reduced to such extent as may be fair and reasonable under (tie circumstances. Upon Landlord's termination of the Lease in accordance with this Section 12. (i) Rent will cease and abate froni the date of"such darnage or destruction and (ii) insurance proceeds, ifuny, paid to "Tenant on account of such damage or destruction shall be delivered In Landlord except that any insurance proceeds paid to Tenant for damage or destruction of Tenant's personal property shall remain the property of "Tenant. Except io the extent of the negligent acts or omissions or willful misconduct of Landlord or its agents, ettiployces, contractors, invitees, or licensees, Landlord is not responsible to Tenant for any daninge caused to Tentuu's personal property and trade fixtures located on the 1'mmises. 13. AurERATIONS AND ADDITIONS: REMOVAL OF FIXTURES. Except as otherwise provided in this Lease, 'tenant shall not make or allow to be niade any alterations, additions or improvements ro or obi the Premises without first obtaining the written consent of Landlord. Any such alterations, additions or improvements shall be made at Tenant's sole expense, according to (clans and specifications approved in writing by Landlord, in compliance with all applicable laves, by a licensed contractor, and in a food and workmanlike manner conforming in cluality and design with the Premises existing as of the Lease Commencement Date, shall not diminish the Valtic of the Premises and shall at once become it part ol'the really and shall be surrendered with the Premises. Upon the expiration or sooner termination of the term hereof, 'Tenant shall, upon ►which demand by Landlord, at "Tenant's sole expense. with due diligence, remove any altercations additions, or improvements inadc by Tenant, designated by Landlord to be removed, and repair any damage to the Premises caused by such removal. 'Tenant shall remove all of its movable properlyand trade fixtures which can he removed without damage to the Premises at the termination of this Lease, either by expiration of the teen or other cause, and shall pay Landlord any darnages for injury to the Premises or the improvements resulting from such removal. If Tenant shall tail to remove any of its property of any nature whatsoever from the Premises or like improvements at the tenitination ol'this Lcasc or ►► icn Landlord has the right of reentry, Landlord may, in accordance with the provisions of applicable statutes goveming commercial landlord and tenant matters, remove- and store such progeny without liability for loss thereof or damage thereto, Such storage to bG for the account and ai the expense ofTenant. If Tcri ant !ails to pay the cost of storing any such property within thirty (30) clays, Landlord may sell any or all such property it public or private sale, without notice to Tenant. and shall apply the proceeds of such sale to the following costs in [lie following order: (i) the cost and expense of such sale. including reasonable attorneys' fees, (ii) the payment of the costs or charges for storing any such property, and (iii) the payment of any other SUITIS Which may ilien he or thereafter become due Landlord front 'Tenant under any of the terms hereof: 'The balance, if any, shall be paid in Tenant. 14. ACCEP TANCL OF PRE Nl lSES. Tenant has inspected the Premises and aCCCpIS dietll ill Illeir "as is" condilion. 15. ACCESS. 'Tenant shall permit Landlord and its agents to enter the Premises al tilt reasonable times to inspect the same; to show the Premises to prospective tenants, or inlerested parties such as prospective lenders and purchasers: to clean. repair. allcr or improve the Premises- to discharge Tenant's obligation- when Tenant has failed to do so wiihin a reasonable time after written notice from Landlord: and to post notices of nonresponsibi lily and similar notices and "For Sale" signs' and to place "For Lease" signs at any little. 'Tenant shall permit Landlord and its agents to enter the Premises at any time in the event of an emergency. 16. «'AIVE?R 014 SUBROGATION. Whether the loss or damage is due to the negligence Cif Tenant or Tenant's agents or employees, or any other cause, Tenant hereby releases Landlord and Landlord's agents and employees from responsibility Ibr and ►vaives its entire claim of`recovery for (i) any loss or damage to lfte personal properly ofTenanl located on the Premises arising out of any of the perils Which are covered by Tenant's property insurance policy, with extended coverage endorsements, or (ii) loss reeuliing Rom hosiness inte:rrulltion or loss ofrental income, at the Premises, arising out ofany of the perils which May he covered by the business interruption or by the loss of rental income insurance policy held by 'Tenant. 'Tenant shall cause its insurance carrier(s) to consent to such waiver ofall right~ 01'suhrogulion ngainsi Landlord. 17. INDEININl FfCATION. 'Tenant shill indemnify and hold harinless Landlord. its agents, employees. officers, directors, partners and shareholders front and againsl any and all liabilities, judgments, demands, causes Of action, claims, losses, damages, costs and expenses, including reasonable attorneys' Il es and costs, arising rntt of the use, Occupancy, CUndt1C1, operation, or managenlcni oldie Premises by, or file wiilfill Misconduct or negligence of, 'Tenant, its officers, contractors, licensees, agents, servants, employees, guests, invitees, or visitors in or about the f'rcmises or arising froin any breach or default under this Lease b}' Tenant, or arising from any nceideni, injury. or damage, howsoever and by whomsoever caused, to any person or property, occurring in or chow the Premises. This indejunification shall survive termination of this Lease. This provision shall tint be construed In inake Tenant responsible for loss. damage. liability or expense resulting front injuries to third parties caused by the sole negligence of I..andlord, or its officers, contractors, licensees, agents, employees, or invitees. 18. ANSIGNl1. EW1' AND SUBL1;'171NG. Tenant will riot assign, translcr, sublet or encumber this Lease without obtaining the prior written consent of Landlord. 19, ADVERTISINC:. 'Tenant shall not display any sign, graphics, notice, picture, or poster, orally advertising; matter whatsoever. anywhere in or about the Premises al places visible from anywhere outside or at the entrance to the Premises without first obtaining, Landlord's written consent thereto. such consent to be at Landlord's sole discretion. 'Tenant sliall be responsible to maintain any perrttiitted signs and remove the same at Lease termination. If "I'cnant shall fail to do so. Landlord may do so at "Tenant's cost. "Tenant shall be responsible to Landlord for any damage caused tad, the installation, use. maintenance or removal of any such signs. 20. 1-1 E-NS. Tenant shall keep the Premises free from any liens arising out of any work performed, materials ordered or obligations incuri-ed by or on behalfol'Tenant, and TCnitrll hereby agrees to indemnify and hold landlord, its agents, employees, independent contractors, officers, directors, partners, and shareholders harmless from any liability. cost or expense tar such liens. Tenant shall cause any such lien imposed to lie released of record by payment or posting of the proper bond acceptable to Landlord within tell (10) days afier the earlier of imposition of the lien or written request by Landlord. Tenant shall give Landlord written notice ofTenartt's intention to perform work on the Premises which might result in any claim of lien, at least ten (10) days prior to the commencement of such .work to enable Landlord to past and record a Notice of Nonresponsibility or other notice deemed proper before commencement of any such work. If Tenant fails to rernove any lien within the prescribed ten (10) day period, then Landlord may do 5o at Tenant's expense and "Tenant's reimbursement it) Landlord For such amount, including attorneys' fees anti casts. shall he deemed additinnal Rent. 21, DE'VAULT. 21.1 "I'cnanl's Default. A default under this Lease by Tenant shall exist if any of the following occurs: 21.1.1 II"I'cnant fails to pay Rent or any other ruin required to be paid hereunder when 21.1.2 If Tenant fails to perform any term, covenant or condition of this Least: except those requiring the payment of money, that Tenant Ibis to cure such breach within fifteen (15) days after written notice front Landlord where such breach could rcasoMLI)ly be cured within such fifteen (15) clay period; provided, however, that were such ftulurc could not reasonably be cured within the fifteen (15-) day period, that Tenant shall not he in default if it comnicnccs such perfonnance within the lificen (15) day period and diligently thereaficr prosecutes the surnc to completion; anti 21.1.3 1F1'cnanI assigns EIs asscis for the bencfit of its creditors; or 21.1.it II*Tenant shall have abandoned or vacated the Premiscc; or 21.1.5 The: chronic delinquency by Tenant in flit payment of monthly Rent, or any other periodic payments required to be Paid by Tenant under this Lease, shall constitute a dclirult. "Chronic delinquency" shall inean failure by Tenant to pity Rent, or iin), other periodic payments required to he paid by Tenant under this Lease within three (3) days alter written notice thereof for any three (3) months (consecutive or nonconsecutive) during any twelve (12) month period. In tilt; event of a chronic delinquency, at Landlord's option, Landlord shall have the additional right to require that Kent be paid by Tenant quarter -annually, in advance. i 21.2 Rcmedics. Upon a default. Landlord shall have the Following remedies, in addition to all other rights and remedies provided by law or otherwise provided in this Lease, to which landlord may resort cumulatively or in the ahernative: 21.2.1 Landlord may continue this Lease in full force and effccf, and this Lease shall continue in full farce and effect as long as Landlord does not terminate this Lease, and Landlord shall have; tint: right to collect Rent and other charges when due. 21.2.2 Landlord may terminate Tenant's right to possession of the Premises at any time by giving written notice to that effect. and relet the Premises or any part thereof. Un the giving of tile notice, all of Tenant's rights in the Premises shall ter►nittatc. Upon such termination. Tenant shall surrenderand vacate the Premises in file condition required by Section 23. and Landlord may re-enter and take possession of the Premises and all the remaining improvements or property and cicct Tenant or other person or persons claiming any right under or through Tenant or eject some and not others or eject none. This Lease may also be terminated by a judgment specifically providing for termination. Any temnination under this section shall not release Tenant From the payment of any stun then due Landlord or from any claim for danlageti or Rent or other suns previously accrued or then accruing against Tenant. Upon such termination Tenant shall be liable immediately to Landlord for all casts Landlord incurs in reletting the Premises or any part thereof, including, without limitation, broker's commissions. expenses of cleaning and redecorating the Premises required by the reletting and like costs. Relating may be Fora period shorter or longer than the remaining terms of this Lease. No act by I..andlord ether than giving written notice to tenant shall terminate this Lease. Acts ofltlaifile nance, efforts to relet the Premises of- the appointment of a receiver on Landlord's initiative to protect Landlord's interest under this Lease shall not constitute a termination of Tenant's right to possession. On termination, Landlord has the right to remove all 'tenant's personal property and store same at Tenarm's cost and to recover from Tenwil as damages: (a) The %vorth at the time of award of unpaid Rent and other sums clue rind payable which had been earned at the lime of fernifliLliUr►; plus (b) the worth at the time of award of the ammount by which the unpaid RCtll and other sums due and payable which would have been payable after termination until the time of awards exceeds the ainlo►ult of such rent loss that Tenant proves could Have been reasonably avoided: plus (c) The worth at the time of award of the amount by which t lie unpaid Item or other surns due and payable for the balance of the terns after tine time of award exceeds the amount of such rent loss that tenant proves could be reasonably avoided. plus (d) Any ether amount necessary which is to cormpensatc Landlord for all the detriment proximately caused by "renant's ftrilttre to perform Tenant's obligations tinder this Lease, or which, in the ordinary course of things, would be likely to result therefrom, including, without limitation, any costs or expenses incurred by Landlord: (1) in retaking possession of the Premises; (ii) in maintaining, repairing, preserving, restoring, replacing, cleaning, alteritil; or rehabilitating Ilse Premises or a portion thereof; including such acts for reletting to a new tenant or tenants; (iii) for leasing commissions; or (iv) for any other costs necessary or appropriate to relet the Premises: plus (c) At Landlord's election, such other amounts in addition to or in licit of the foregoing tts may be permilted from lime to lilac: by the laws ofthe State orNorth Carolim. The "worth at the lime of award" ofthe amounts refierred to in Sections 23.2.2(a) anti (h) is computed by ell lowing interest to accrue at the maximum interest rate al lotted by lacy on the unpaid rent and other sums due and pavable from the termination date through the date ofaccard. Tenant waives redemption or relief from forfeiture under any other present or feature law, in the event 'Tenant is evicted or Landlord takes possession of the Premises by reason of any default of Tenant hereunder. 21.2.3 Landlord may. with or without ternninating this Lease, re-enter the Premises and remove all persons and properly from the Premises: such property may be removed and stored in a public warchouse or elsewhere al the cost of and for the account of Tenant. No re-entry or taking possession ol'the Premises by Landlord pursuant to this section shalt be constrtlt:d sus an election to terminate; this Lease unless it written notice of such intention is liven to Tenant. 22. SUB61RDINA" ION. "]'his Lease is and shall be subordinate to the lien of any mortgage, deed of trust, ground lense or underlying lease now or hereafer in force against the Premises, and to al advances made or hereafter to be made upon tine security thereof. This provision of the Lease shali be Self -operative, provided. however, that upon request of Landlord. Tenant will cxecutc it subordination ugrccmunt or other documents evidencing slick subordination. all in recordable form. "Tenant shall execute and return to Landlord any such subordination documents within ten( 10) days of I andlord's written request. IfTenanl does nol l3rovide Landlord with such subordination documents within ten (10) days of I..andlord's wrillen request. Ihen'Tenant hereby authorizes Landlord to execute such subordination documents acting as duly authorizer) agent for Tenant, and Landlord may declare Tenum ill delitult of this Lease, In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under :toy mortgage or deed of trust made. by the Landlord entering the Premises. Tenant shall attorn to the purchaser at any such foreclosure, or to the grantee ora deed it) lietl of foreclosure, and recognize such purchaser or grantee as the Landlord under this Lease. The provisions of this article to the corltntry notwithstanding, and so long as Tenam is not in delault hereunder, this Lease shall remain in full force and effect for tile full terin licremider. 23. SURRENDER OF POSSESSION. Upon expiration ofthe term rtf this Lease. Tenant shall promptly and peacefully surrender the Premises to Landlord in as good condition as when received by "tenant from Landlord or as thereafter improved, reasonable use and wear and tear excepted, all to the reasonable satisfitction of Landlord. If the Premises .tic: nut surrendered in accordance with the learns of this Lease, Tenant shall indemnify Landlord and its agents, crrlployces, independent contractors, offteers, directors, partners. and sharelnulders against any loss or liability including reasonable attorneys' fees and census, and including liability to succeeding tenants. rv.sulling front delay by Tenant in so surrendering the Premises. This indemnification shall survive termination of this Lease. 24. HOLDOVER. Irrenant shall, %without the written consent ofLandlord, hold over triter the expiration of the term of this Lease such tenancy shall he deemed a month-to-nionth tenancy, which tenancy may be terminate as provided by applicable state law. During such tenancy. Tenant agrees to pay to Landlord, each month, the greater or the (air market rental value for the Premises or one hundred fifty percent (150%) of the Rent payable by Tenant for the last month of the tents of this Lease. 25. CON DEliNINATION. if 1%v my (20) pe:rccut tor worc of the Premises or c11'such portions of the improvements as may he required for the reasonable use rtf[lie Premises, are taken by eminent domain or sale under threat ol'condemtlauion by eminent domain, this Lease shall automatically terminate as of the date title vests in the condemning authority, and all Rent and other payments shall lie paid to that date. Landlord reserves all rights to damages to the Premises fior any partial or entire taking by eminent domain, and 'I'viiaw hereby assigns to landlord any right Tenant may have to such damages or award, and Tenant shall make no clairti against Landlord or llle condemning atifliority for damages for termination ofthe leaschold interest or interference with Tenant's business. Tenant shall have [lie right to claim and recover from the condemning authority compensation for any IQss which Tenant may incur fir "Tenant's moving expenses, business interruption or taking OfTenant's persoturl property (twt ineluding Tenant's leasehold interest). 26. NOTICES. All notices and deruands which may be required or perinitted to be given to either party hereunder shall he in writing. and shall be sent by United States raaail, postage prepaid to the addresses set out below, and In such other person or place as each party may from time to time designate in a notice to the other. Notice shall Ix: deemed given upon the earlicrofactuai receipt or seventy-two (72) hours after deposit in tits United Slates mail, hostage prepaid. If to Tcnanu with n copy to: If to Landlord: B&K Coastal, LI.0 11,0. Box 2101 Wilmington, NC: 284102 Attu: J. Keith Smrlt 'I'ltc Macl)onnid Law Firm, PLLC 1508 Military Cutoff Road Suite 102 Wilnringtan NC 28,103 Attn: Jaynes A. MacDonald Waste Industries, LLC 3301 Benson Drive, Suite (101 Raleigh. NC; 27607 Attll: Michael T. Inglc fax No.: (91.9) 325-3013 Phone No. (919) 325-3000 10 R with a copy to Lisa Inman, General Counsel, at the slope address. 27. NIORTGAC1:l, j,itoTEcriosN. 'Tenant agrees to give any mortgagec(s) and/or trust deed holder(s). by registered mail, a cop)' of any notice ofdcftult served upon landlord, provided that prior to such notice Tenant has been notified in writing (by way of notice of assignment of rents and ]cases. or otherwise) of -the addresses of such morigagee(s) and/or inist (Iced holder(s). Tenant further agrees that it'Landlord sliall have thiled to cure such delatilt within the tune provided for in this Lease, then the mortgag;ec(s) and/or trust deed holders) shall have in additional thirty (30) days within which to cure such default or if such default cannot be curet) within that tune, then such additional time as may be necessary il'within such thirty (')0) clays any mongagee and/or foist deed holder(s) has commenced and is diligently pursuing the remedies necessary to Cure SUCK default (including but tlol limited to commencement of loreclostrre proceedings. if necessary to effect such cure). in which event this Lease shall not be terminated while such remedies are being; so diligently pursued. 29. COSTS AND A170RNEN'S' FIsI;S. If"I"cnant or Landlord shall hying any action against the other, arising; out of"this Lease, including any suit by Landlord fur the recovery of" Rent or other payincnts hereunder, or possession of the Premises. the losing Marty shall pay thr prevailing patty it reasonable sum for allorneys' fees [tad COOS nl SUCh tiuel, at trial and on appeal. and such atttlrncvs' I'Ccs and caslS Shall he c1cenled to have accrued oil the commencement of Sl[CII action. 29. LANDLORD'S LIABILITY. Anything in this ]..case to the contrary uutwitllstanding. covenants. undertakings and agreements liereirr made oil the Dart (if Landlord are made and intended not for the purpose of binding; Landlord personally or the assets of Landlord but are made and intended to bind only the Landlord's interest in the Premises, as tic Sallie may, from time to time, he enctimhered and no personal liability shall at any time he asserted or wilorceable against Landlord or its stockholders. officers or partners or their respective heirs, legal representatives, successors and assigns on account of the Lease or on account of [lily COVerlartt, Undertaking or agreerlicni ol-Umtllord in this Lease. 30, 1'sSTOPPEL CERTIFICATEX At any lime and from time to time,'Tenant shall execute, acknowledge and deliver to the requesting; party without charge, it cerl.ificate cvidencirlg; (a) whether or not Ibis Lease is in lull force and effect, (b) whelhcr or not this Lease has been amended in any way, (C) whether or not there are any existing; def stilts by either party hereto to the knowledge and bcliei ofthe certifying; party and specifying the nature nl'Ihc &filtilts if arty, and (d) the date to which Rent has been paid. ]such certificate delivered pursuant to this Sectiorl 30 may be relied oil by any prospective purchaser or transferee of Landlord's interest hereunder or by any holder or prospective holder ofa first mortgage of Landlord. 31. TRANSFER {W LAN D1.,(MID'S INTEREST. In the event ol'atny transfer(s) of Landlord's interest ill the Premises, ether than a transfer for security purposes only, the transferor shall he automatically relieved of any and all obligations arld liabilities oil the part of Landlord accruing front and after the date ot'such transfer'. and 'Ien,lnt agrees to attorn 10 the Irtntitcrcc. 32. R.IC11T TO PERFORM. IfTenanl shall fail to pity any sun] of n]oncy, other than pent, required to he paid by it hereunder or shall fail to perform any other acl (in its part to he performed hereunder, and such failure shall continue for ten (10) days. Landlord may, but shall not be obligated so to do, and without waiving or releasing Tenant front tiny obligations of Tenant, male any such payment or perform any such other act on Tenant's part to he made or perfomied as provided in this Lease. Landlord shall have (in addition to any other right or remedy of Ltuullord) the same rights and remeclics in the event of the nonpayment of suins due under this section as in the case ofdelault by Tcnanl in the payment of'Rent. All suins paid by Landlord and all pennities, interest and costs in connection therewith, shall be due and payable by Tenant on the next day after such payment by Landlord, together with interest thereon at [lie maximum rate of interest permitted by law from such elate to the elute of payment. 33. NO ACCORD OIt SATISFACTION. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent and other sums duc hereunder shall he deemed it) be oilier than on account or the earliest rent nr t]thcr Stills clue, nor shall any endorsement or siniement on tiny check or accompanying any check or payment be decried in accord and satisfaction; and Landlord may accept such check or payment without prejudice to landlord's right to recover the balance of such Rcnt or other sum and 10 pursue any other remedy provided in this Lease. 34. CI;NIs17Al. PROVISIONS 34.1 Acceplancc. This Lease shall only become effective and binding upon 11111 execution hereof by Landlord and subsequent delivery of n signed copy io Tenant. 34.2 Marginal Headings, I;tc. The marginal headings, Tahle of Contents, lease surninary sheet and titles to the articles of this Lease tire not a part of the Leasc and shall have no effect upon the construction or interpretation ofany parr hereof. 34.3 Choice c-f Law. This Lease shall bC gOVCI'IlCd by and catslr IC(I in aCCordanCC with the laws of the state of North Cavil ina. 34.4 Successors and Assigns. The covenants and conditions herein contained, subJecl to the provisions as to assignment, inure to and bind the heirs, succe:ssDCs. executors, adminisiralors and assigns of the parties hereto. 34.5 Recordation. Neither Landlord nor Tenant shall record this [,case, but a short -form mcrnerandutn hereof may be recorded tit the request of either party. 34.6 Quiet I'ussesiuri. Upon Tcnaut's flaying the Rent reserved hereunder and observing and perfonning all of the covenants, conditions and provisions on Tenant's part to tie Observed and performed hereunder, Turiant shall have quiet possession of the Premises for file wrn] hereof. subject to all the provisions of this Lease. 34.7 Inability to Perform. "Phis [-case and the obligations of'I'enant hereunder shall not be affected or impaired hecause Landlord is unable to fulfill any of its obligations- hereunder or is 12 delayed in doing so, if such inability or delay is caused by reason ofstrike. lalx)r troubles. acts cif God. or any other cause beyond the reasonable control of Landlord. 34.8 Partial Invalidity. Any provision of this Lease which shall prove to be invalid, void, or illegal shall in no wiry affect, impair or invalidate any miller provision here'(. rand such other provision(s) shall remain in full force and effect. 34.9 Cumulative Remedies. No remedy or election hereunder shall be deerned exclusive but shall, whenever possible, be cumulative with all other rerncclics at law or in ccluity. 34.10 I:ntiri: Agreement. This Lease contains the entire agreement of the parties. hereto and no repro sewtitions, inducements, promises or tagrecinents, oral or otherwise, boween the parties. not embodied herein, shall be ofany fiorce or effect. 34.11 NQ. Joint Venture/Partnershin, The parties expressly acknowledge that the relationship between the I-anies is that of landlord and tenant and that no partnership,.joint venture or other relationship exists between the parties. THE FOLLOWING PAGI's IS TFII, SIGNATURE- PAGE� 13 • IN WITNI'SS WHER11"OF, Landlord and 'Tenant have executed this Lease on the clav anti year first above written. LANDLORD - Waste Industries. LI_C. a Nortlt Carolina Limited liarbilitycomparny [Iv: Name: es,de-17 I-E' N A NT: Cape Fcar 1111v in& IL1.0 A North Carolina limited liability company BY: Nrunr: Tit le: 14 IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day and year first above written. LANDLORD: Wasic tnduatrics, LLC, to North Carolina limited liability company By: _ Name: TENANT: Cape Pcar Paving, LLC A North Carolina lirnited liability company By: Nam e— t Title: lz. 14 PItI,11IIISES Being all of Tract I as shown on a survey of' Mid River Heavy Industrial Park for Samsun Development, LLC and Sound Development General Partners recordcd in Map Book 39. Page: 33 of the New Hanover County Registy. referencc to said map heing hereby made For -.1 complete description of said property. IS