WM0501646_Circle_K_Store_2723479_Well_Construction_Permit_06042024

North Carolina Department of Environmental Quality | Division of Water Resources
Raleigh Regional Office | 3800 Barrett Drive | Raleigh, North Carolina 27609
919.791.4200

June 4, 2024 Mr. Anthony Bell Circle K Stores, Incorporated 1100 Situs Court, Suite 100 Raleigh, North Carolina 27605 Sent Via Email Subject: Monitoring Well Construction Permit # WM0501646 Circle K Store #2723479 1900 Highway 70 East Garner, NC 27529 – Wake County Mr. Bell: In accordance with the application received on May 30, 2024, we are forwarding herewith Monitoring Well Construction Permit No. WM0501646 dated June 4, 2024, issued for the construction of a monitoring well system (installation of four wells). Please be aware that some counties have well construction programs, and you may be required to obtain a well construction permit before installation. This Permit will be effective from the date of its issuance and shall be subject to the conditions and limitations as specified therein. Please note the addition of stipulation #3 to the permit enclosed. If you have any questions about this permit, please contact Michael Hall at [phone] or via email at [e-mail]. Sincerely,
Michael Hall, Regional Supervisor
Water Quality Regional Operations Section
Raleigh Regional Office
Division of Water Resources, NCDEQ Enclosure -Permit -Application Package Ec: Maureen Jackson, ATC Associates of North Caroline, P.C. Laserfiche

DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719

North Carolina Department of Environmental Quality | Division of Water Resources
Raleigh Regional Office | 3800 Barrett Drive | Raleigh, North Carolina 27609
919.791.4200
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY DIVISION OF WATER RESOURCES PERMIT FOR THE CONSTRUCTION OF A MONITORING WELL
In accordance with the provisions of Article 7, Chapter 87, North Carolina General Statutes, and other applicable Laws,
Rules and Regulations.
PERMISSION IS HEREBY GRANTED TO Circle K Stores, Incorporated FOR THE CONSTRUCTION OF A MONITORING WELL SYSTEM consisting of four monitoring wells owned by Circle K Stores, Incorporated, at mailing address 1100 Situs Court, Suite 100, Raleigh, North Carolina 27604. The wells will be located on the property owned by R. Garland Burnette, at 1900 Highway 70 East, Garner NC 27529. This Permit is issued in accordance with the application received on May 30, 2024, in conformity with specifications and supporting data, all of which are filed with the Department of Environmental Quality and are considered integral parts of this Permit.
This Permit is for well construction only and does not waive any provision or requirement of any other applicable law or
regulation. Construction of any well under this Permit shall be in strict compliance with the North Carolina Well
Construction Regulations and Standards (15A NCAC 02C .0100), and other State and Local Laws and regulations pertaining
to well construction.

If any requirements or limitations specified in this Permit are unacceptable, you have a right to an adjudicatory hearing
upon written request within 30 days of receipt of this Permit. The request must be in the form of a written petition
conforming to Chapter 150B of the North Carolina General Statutes and filed with the Office of Administrative Hearings,
6714 Mail Service Center, Raleigh, North Carolina 27699-6714. Unless such a demand is made, this Permit is final and
binding.
This Permit will be effective for one year from the date of its issuance and shall be subject to other specified conditions,
limitations, or exceptions as follows:
1. Issuance of this Permit does not obligate reimbursement from State trust funds, if these wells are being
installed as part of an investigation for contamination from an underground storage tank or dry cleaner
incident.
2. Issuance of this Permit does not supersede any other agreement, permit, or requirement issued by
another agency.
3. The well(s) shall be located and constructed as shown on the attachments submitted as part of the Permit
application.
4. Each well shall have a Well Contractor Identification Plate in accordance with 15A NCAC 02C .0108(o).
5. Well construction records (GW-1) for each well shall be submitted to the Division of Water Quality’s
Information Processing Unit within 30 days of the well completion.
6. When the well is discontinued or abandoned, it shall be abandoned in accordance with 15A NCAC 02C
.0113 and a well abandonment record (GW-30) shall be submitted to the Division of Water Quality’s
Information Processing Unit within 30 days of the well abandonment.
7. If the well penetrates any water-bearing zone that contains contaminated waters, the upper three feet of
the well shall be grouted within one day after the casing is set or the well abandoned.

____________________________________
Michael Hall, Regional Supervisor
Division of Water Resources, Raleigh Regional Office
By Authority of the Environmental Management Commission

Permit Number: WM0501646
Permit Issued: June 4, 2024
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
2725 E. Millbrook Road, Suite 121
Raleigh, North Carolina 27604
Tel: [phone]
Fax: [phone]
www.oneatlas.com
N.C. Engineering License No. C-1598

May 30, 2024

Mr. Mike Hall
North Carolina Department of Environmental Quality
Raleigh Regional Office
Division of Water Quality, Aquifer Protection Section
1628 Mail Service Center
Raleigh, North Carolina 27699

RE: Application for Permit to Construct a Monitoring Well System
Circle K Store #2723479
1900 Highway 70 East (PIN #1730357163)
Garner, Wake County, North Carolina
NCDEQ Incident No. 47967

Dear Mr. Hall:

On behalf of Circle K Stores Inc., ATC Associates of North Carolina, P.C. (ATC) has been directed by
the NCDEQ-DWM-UST Section to perform assessment activities at the above property. Circle K leases
the property from R. Garland Burnette (a copy of the lease agreement is attached). ATC will be
installing three shallow monitoring wells and one Type III monitoring well on the property as part of the
CSA activities. I have attached the well construction permit application to this cover letter. Drilling is
currently scheduled for June 17, 2024.

We greatly appreciate your assistance in this matter. If you have any questions or concerns, please feel
free to contact me at [phone] or via email at [e-mail].

Sincerely,
ATC ASSOCIATES OF NORTH CAROLINA, P.C.

Maureen Jackson, P.G.
Senior Project Manager
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
FOR OFFICE USE ONLY

PERMIT NO. ISSUED DATE
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY - DIVISION OF WATER RESOURCES
APPLICATION FOR PERMIT TO CONSTRUCT A MONITORING OR RECOVERY WELL SYSTEM
PLEASE TYPE OR PRINT CLEARLY

In accordance with the provisions of Article 7, Chapter 87, General Statutes of North Carolina and regulations pursuant thereto,
application is hereby made for a permit to construct monitoring or recovery wells.

1. Date:

2. County:

3. What type of well are you applying for? (monitoring or recovery):

4. Applicant: Telephone:

Applicant’s Mailing Address:

Applicant’s Email Address (if available):

5. Contact Person (if different than Applicant): Telephone:

Contact Person’s Mailing Address:

Contact Person’s Email Address (if available):

6. Property Owner (if different than Applicant): Telephone:

Property Owner’s Mailing Address:

Property Owner’s Email Address (if available):

7. Property Physical Address (Including PIN Number)
City County Zip Code

8. Reason for Well(s):
(ex: non-discharge permit requirements, suspected contamination, assessment, groundwater contamination, remediation, etc.)

9. Type of facility or site for which the well(s) is(are) needed:
(ex: non-discharge facility, waste disposal site, landfill, UST, etc.)

10. Are there any current water quality permits or incidents associated with this facility or site? If so, list permit and/or in cident no(s).

11. Type of contaminants being monitored or recovered:
(ex: organics, nutrients, heavy metals, etc.)

12. Are there any existing wells associated with the proposed well(s)? If yes, how many?

Existing Monitoring or Recovery Well Construction Permit No(s).:

13. Distance from proposed well(s) to nearest known waste or pollution source (in feet):

14. Are there any water supply wells located less than 500 feet from the proposed well(s)?

If yes, give distance(s):

15. Well Contractor: Certification No.:

Well Contractor Address:

PROPOSED WELL CONSTRUCTION INFORMATION

1. As required by 15A NCAC 02C .0105(f)(7), attach a well construction diagram of each well showing the following:

a. Borehole and well diameter e. Type of casing material and thickness
b. Estimated well depth f. Grout horizons
c. Screen intervals g. Well head completion details
d. Sand/gravel pack intervals
Continued on Reverse
132 Gurney Road Olin, North Carolina 28660
Unknown
Unknown
P.O. Box 2264 Atlantic Beach, North Carolina 28512
R. Garland Burnette
WM0501617
2579Carolina Soil Investigations, LLC
N/A
No
Approx. 95 to 400 feet
Yes - 13
petroleum
UST incident #47967
UST
petroleum release assessment for Circle K Store #2723479 (UST incident #47967)
27529WakeGarner
1900 Highway 70 East (PIN #1730357163)
[e-mail]
2725 E. Millbrook Road, Suite 121 Raleigh, North Carolina 27604
[phone]Maureen Jackson
[e-mail]
1100 Situs Court, Suite 100 Raleigh, North Carolina 27605
[phone]Circle K Stores, Inc.
Monitoring
Wake
May 30, 2024
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719

PROPOSED WELL CONSTRUCTION INFORMATION (Continued)

2. Number of wells to be constructed in unconsolidated
material:

3. Number of wells to be constructed in bedrock:

4. Total Number of wells to be constructed:
(add answers from 2 and 3)
5. How will the well(s) be secured?

6. Estimated beginning construction date:

7. Estimated construction completion date:

ADDITIONAL INFORMATION

1. As required by 15A NCAC 02C .0105(f)(5), attach a scaled map of the site showing the locations of the following:

a. All property boundaries, at least one of which is referenced to a minimum of two landmarks such as identified roads,
intersections, streams, or lakes within 500 feet of the proposed well or well system.
b. All existing wells, identified by type of use, within 500 feet of the proposed well or well system.
c. The proposed well or well system.
d. Any test borings within 500 feet of proposed well or well system.
e. All sources of known or potential groundwater contamination (such as septic tank systems, pesticide, chemical or fuel
storage areas, animal feedlots as defined in G.S. 143-215.10B(5), landfills, or other waste disposal areas) within 500 feet
of the proposed well or well system.

SIGNATURES

The Applicant hereby agrees that the proposed well(s) will be constructed in accordance with approved speci fications and conditions of
this Well Construction Permit as regulated under the Well Construction Standards (Title 15A of the North Carolina Administrative Code,
Subchapter 2C) and accepts full responsibility for compliance with these rules

Signature of Applicant or *Agent Title of Applicant or *Agent

* If signing as Agent, attach authorization agreement stating
Printed name of Applicant or *Agent that you have the authority to act as the Agent.

If the property is owned by someone other than the applicant, the property owner hereby consents to allow the applicant to co nstruct
wells as outlined in this Well Construction Permit application and that it sh all be the responsibility of the applicant to ensure that the
well(s) conform to the Well Construction Standards (Title 15A of the North Carolina Administrative Code, Subchapter 2C).

Signature of Property Owner (if different than Applicant) Printed name of Property Owner (if different than Applicant)

DIRECTIONS

Please send the completed application to the appropriate Division of Water Resources’ Regional Office:

Asheville Regional Office
2090 U.S. Highway 70
Swannanoa, NC 28778
Phone: [phone]
Fax: [phone]

Fayetteville Regional Office
225 Green Street, Suite 714
Fayetteville, NC 28301-5094
Phone: [phone]
Fax: [phone]

Mooresville Regional Office
610 East Center Avenue
Mooresville, NC 28115
Phone: [phone]
Fax: [phone]

Raleigh Regional Office
3800 Barrett Drive
Raleigh, NC 27609
Phone: [phone]
Fax: [phone]

Washington Regional Office
943 Washington Square Mall
Washington, NC 27889
Phone: [phone]
Fax: [phone]

Wilmington Regional Office
127 Cardinal Drive Extension
Wilmington, NC 28405
Phone: [phone]
Fax: [phone]

Winston-Salem Regional Office
450 W. Hanes Mill Road
Suite 300
Winston-Salem, NC 27105
Phone: [phone]
Fax: [phone]
GW -22MR Rev. 3-1-2016
GW-22M (Rev. 5/11)
Lease agreement attached R. Garland Burnette
Sr. Project Manager for ATC
Maureen Jackson ATC on behalf of Circle K Stores
June 17, 2024
June 17, 2024
Steel traffic bearing cover, sealing and locking cap
4
1
3
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
1
Maureen Jackson
Subject:FW: Permits and approval to sign
From: Bell, Anthony <[e-mail]>
Sent: Wednesday, April 24, 2024 9:07 AM
To: Maureen Jackson <[e-mail]>
Subject: [EXTERNAL] RE: Permits and approval to sign

[External Email] This email originated from outside of the Atlas mail system. Please use caution when opening
attachments.

I give Maureen Jackson permission to sign permits on behalf of Circle K (NPDES, well
permits for o-site wells, UST (DEQ) forms).

Anthony Bell
Remediation Project Lead
Fuel Maintenance and Environmental – North America

e:[e-mail]
m: [phone]

Circle K Stores Inc.
1100 Situs Court, Suite 100
Raleigh, NC 27606
http://corpo.couche-tard.com/en/business-units/

Part of Alimentation Couche-Tard

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DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
TABLE OF CONTENTS
Page
1. CONDITIONS PRECEDENT TO OBLIGATION OF TENANT 1
2. TITLE AND SURVEY OBJECTIONS 3
3. RISK OF LOSS 3
4. CONDEMNATION 3
5. ACCESS/COOPERATION 4
6. REPRESENTATIONS AND WARRANTIES OF THE LANDLORD 4
7. DEFAULT 5
8. AGENTS AND BROKERS 5
9. LANDLORD'S INDEMNIFICATION 6
10. AGREEMENT TO LEASE; TERM 6
11. RENT 6
12. RENEWAL OPTION 8
13. USE OF PREMISES 8
14. RADIUS RESTRICTION 8
15. CONSTRUCTION OF IMPROVEMENTS 8
16. ASSIGNMENT AND SUBLEASING 9
17. NET LEASE 10
18. TAXES 10
19. MAINTENANCE, REPAIRS AND REPLACEMENTS 10
20. ALTERATIONS, CHANGES, AND IMPROVEMENTS 11
21. ESTOPPEL CERTIFICATES 11
22. UTILITIES 12
23. COMPLIANCE WITH LAWS, REGULATIONS AND RESTRICTIONS 12
24. FIRE AND CASUALTY DAMAGE 12
25. CONDEMNATION 13
26. LANDLORD'S PERFORMANCE OF TENANT'S OBLIGATIONS 14
27. INDEMNIFICATION 14
28. INSURANCE 15
29. DEFAULT BY TENANT 16
30. LANDLORD'S RIGHT OF ENTRY 18
31. QUIET ENJOYMENT 18
32. HOLDING OVER 19
33. SURRENDER OF LEASE NOT MERGER 19
34. ATTORNEYS' FEES 19
35. NOTICES 19
36. WAIVER 20
37. GOVERNING LAW 20
38. RELATIONSHIP OF THE PARTIES 20
39. MISCELLANEOUS PROVISIONS 20
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
AGREEMENT OF LEASE
BETWEEN
ETHEL W. BURNETTE, et al.
AND
EAST COAST OIL CORPORATION
Dated as of August 4, 1997
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE is made as of the 4th day of August, 1997,
between ETHEL W. BURNETTE, widow, RICHARD G. BURNETTE, JR., unmarried,
and MARTHA BURNETTE BAGLEY, unmarried ("Landlord"), and EAST COAST OIL
CORPORATION, a Virginia corporation ("Tenant").
RECITALS:
A.Landlord is the Owner of that certain parcel of land consisting of
approximately 2.98 acres located at the southeast corner of U.S. Highway 70 at Raynor
Road, Town of Gamer, North Carolina, more particularly shown on the survey described
in paragraph 1(b), to be attached hereto as Exhibit "A" prior to the Commencement
Date (the "Land").
B.Provided the conditions precedent for the benefit of Tenant are
satisfactorily addressed, Tenant proposes (i) to construct a retail gas/convenience center
on the Land (the "Improvements"). (The Land and Improvements are, collectively, the
"Premises" or "Leased Premises"), and (ii) occupy the Improvements and lease the Land
from Landlord on all the terms and conditions set forth herein.
WITNESSETH:
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1.CONDITIONS PRECEDENT TO OBLIGATION OF TENANT. This
Agreement and all of Tenant's obligations hereunder are subject to Tenant determining to
its sole satisfaction within ninety (90) days after the complete execution of this
Agreement by Landlord and Tenant (the "Execution Date"), that all aspects of the Land
are feasible for Tenant's purposes (the "Feasibility Period").
In the event that all aspects of the Land are not deemed feasible for
Tenant's purposes in Tenant's sole discretion, Tenant shall give written notice thereof to
Landlord within the Feasibility Period. This Agreement shall terminate and both
Landlord and Tenant shall thereafter be relieved from any and all liability under this
Agreement, except as set forth in paragraph 5(a) hereof. In the event Tenant does not
give Landlord such written notice, the feasibility condition precedent shall be deemed to
have been satisfied or waived.
This Agreement and all of Tenant's obligations hereunder are further
contingent upon the following:
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DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
(a)Title Commitment. The Tenant shall have obtained from a title
insurance company selected by the Tenant a title insurance binder committing to insure,
for a premium not greater than such company's regularly scheduled rates, that the title to
the Land is acceptable to the Tenant in its sole discretion.
(b)Survey. The Tenant shall have obtained at its sole cost and
expense a survey (the "Survey") of the Land which shall not disclose any facts not
acceptable to the Tenant in its sole discretion.
(c)Permits. The Land shall be zoned to permit the use of the Property
for a service station for the sale of gasoline and diesel fuel, with a convenience store and
uses accessory thereto, with the imposition of only such conditions to the zoning as are
acceptable to Tenant in its sole discretion. In addition, Tenant shall have obtained (on
terms and conditions satisfactory to it in its sole discretion) all appropriate private and
governmental permits and approvals which are necessary or desirable to permit the
development and construction of the Improvements, including without limitation building
permits, curb cuts, subdivision, schematic plan approvals and environmental approvals.
Tenant shall bear the cost of obtaining all of the aforesaid approvals and permits.
Landlord hereby consents and agrees to join in, execute and timely support in good faith,
as required or requested, such applications as may be necessary or desirable to obtain the
appropriate approvals and permits, and in good faith will cooperate, support and take all
action reasonable or necessary to assist Tenant in making and prosecuting such
applications; provided, however, that, except as may be specifically set forth herein,
Landlord shall not be put to any material expense in connection therewith.
(d)Utility Availability. There shall be available for use by Tenant at
or near one of the boundary lines of the Land at a cost acceptable to Tenant, and normal
connection and user fees, electrical power, gas, telephone service, and other utilities
desirable for development of the Land, all adequate to service the Land, or alternative
sources for water, sewer and other such items available on terms acceptable to Tenant.
Such utilities, services and facilities shall be available without the necessity of obtaining
off-site easements.
(e)Moratorium. There shall be no building or other moratorium
affecting the Land or the Improvements pending or proposed by any applicable authority.
(0 Pending Litigation. There shall be no litigation, proceeding or
investigation pending, or to the knowledge of Tenant or Landlord threatened, which
might prevent or adversely affect the construction and operation of Improvements on any
portion of the Land or which questions the validity of any action taken or to be taken by
Landlord or Tenant hereunder.
(g)Hazardous Materials There shall have been no hazardous
materials used, discharged or stored on or about the Land.
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DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
(h)Separate Parcel. The Demised Premises shall be recognized as a
separate tax parcel by applicable local and state taxing authorities.
The foregoing conditions precedent are hereby acknowledged to be
conditions for the benefit of the Tenant. The Tenant shall have the right to waive any or
all of such conditions and proceed to lease the Property with no reduction in the Base
Rent, provided, however, that any such elective waiver or waivers must be in writing and
given in accordance with the provisions of Paragraph 35.
2.TITLE AND SURVEY OBJECTIONS. The Tenant shall request a title
insurance commitment for the Land and the Survey promptly following execution of this
Agreement and shall deliver copies thereof to the Landlord upon their receipt. The
Tenant shall, on or before the expiration of the Feasibility Period, inform the Landlord in
writing as to any Survey or title defects or other objections regarding the Land disclosed
by the Survey or commitment that the Tenant is unwilling to accept. If the Landlord is
unable or unwilling to cure such Survey or title defects or objections to the Tenant's
satisfaction within thirty (30) days following notice thereof (the "Cure Period"), then the
Tenant may, at its option, and as its sole remedy, notwithstanding anything herein
contained to the contrary, either (i) terminate this Agreement by giving the Landlord
written notice of such termination within thirty (30) days following the end of the Cure
Period; (ii) cure such defects or objections at its own expense and proceed to
Commencement with no reduction in the Base Rent; or (iii) waive such defects and
proceed to Commencement with no reduction in the Base Rent. If the Tenant so elects to
terminate this Agreement, the parties hereto shall have no further obligations or liabilities
to one another hereunder. If the Tenant (i) fails to notify the Landlord of any Survey or
title defects or objections to the Land on or before the expiration of the Feasibility Period,
or (ii) has notified the Landlord of defects or objections which remain uncured by the
Landlord by the Commencement Date and the Tenant has not terminated this Agreement,
the Tenant shall be deemed to have approved in writing all matters relating to the Survey
or title to the Land disclosed on the Survey and the commitment as of their respective
dates.
3.RISK OF LOSS. The risk of loss or damage to the Land by fire or other
casualty prior to the Commencement Date (as hereinafter defined) shall be on the
Landlord. If such loss or damage materially and adversely affects the Tenant's intended
use and enjoyment of the Land as of the Commencement Date, the Tenant shall be
entitled to terminate this Agreement. The parties hereto shall have no further obligations
or liabilities to one another hereunder.
4.CONDEMNATION. If, prior to the Commencement Date, any taking
pursuant to the power of eminent domain is proposed or occurs, as to all or any portion of
the Land intended to be leased to the Tenant, or sale occurs in lieu thereof, the Tenant
shall be entitled to elect either to (i) terminate this Agreement, or (ii) proceed to
Commencement, in which event, all proceeds, awards and other payments arising from
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any such taking or sale shall be paid to the Tenant, without any adjustment of the Rent. If
the Tenant elects to terminate this Agreement, the parties hereto shall have no further
obligations or liabilities to one another hereunder.
5.ACCESS/COOPERATION.
(a)Inspection. During the Feasibility Period, the Tenant, its duly
authorized agents and employees shall be entitled to reasonable access to the Land, for
the purpose of inspecting the Land and making surveys, examinations, measurements,
soil tests, engineering and other findings, and undertaking such other activities related to
the use and further development of the Land, provided that such studies do not result in
any material change in the present character of the Land. If the Tenant fails to proceed
with the Lease, the Tenant agrees to repair any material damage arising as a result of its
exercise of the right of access granted in this Paragraph and to indemnify and hold the
Landlord harmless from any and all liability of any kind or nature whatsoever as a result
of the exercise of such right of access, other than as a result of the Landlord's gross
negligence or willful misconduct. The foregoing indemnification shall survive Tenant's
termination of the Lease prior to the Commencement Date.
(b)Construction. At any time after Tenant has determined that
the Land is feasible for its purposes, and subject to obtaining any necessary
permits or approvals, Tenant shall be permitted to have access to the Land for the
purpose of constructing the Improvements.
6.REPRESENTATIONS AND WARRANTIES OF THE LANDLORD.
The Landlord represents and warrants as of the date hereof and by appropriate certificate
delivered at Commencement will represent and warrant as of the Commencement Date
that:
(a)Public Improvements. The Landlord has no knowledge of any
planned public improvement which may result in a special assessment being made
against the Land.
(b)Repairs. No governmental agency has served any notice on the
Landlord regarding, nor does the Landlord have knowledge of any planned notice
requiring, repairs, alterations or corrections of any existing condition on the Land.
(c)Condemnation. The Landlord has no knowledge of any pending or
threatened proceedings for condemnation or the exercise of the right of eminent domain
as to any part of the Land or for the limiting or denying of any right of access thereto.
(d)No Special Taxes. The Landlord has no knowledge of, nor has it
received any notice of, any special taxes or assessments relating to the Land or any part
thereof
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(e)Authorization and Execution. This Agreement has been duly
executed and delivered by the Landlord, constitutes the valid and binding agreement of
the Landlord and is enforceable against the Landlord in accordance with its terms.
Hazardous Materials. To the best of Landlord's knowledge, (i) no
hazardous or toxic materials, as said terms are defined in any applicable federal or state
laws ("Hazardous Materials") have been used, discharged or stored on or about the Land,
(ii) no Hazardous Materials are now or will be at the Commencement Date located on or
below the Land, and (iii) there are no storage tanks located in, on or under the Land.
DEFAULT.
(a)Prior to the Commencement Date, the parties agree that in the
event of a default by Tenant under this Agreement, the damages suffered by Landlord
would be difficult to ascertain. Therefore, Landlord and Tenant agree that, in the event of
such a default by Tenant, Landlord's sole and exclusive remedy, in lieu of all other
remedies, shall be to retain the Deposit (Two Thousand and 00/100 Dollars, $2000.00
paid to Landlord prior to execution of this Lease Agreement), and receive an additional
payment from Tenant of Eighteen Thousand Dollars ($18,000.00) as full and complete
liquidated damages, and Landlord hereby specifically waives the right to seek specific
performance of this Agreement by Tenant or any other remedy at law or in equity, if
Tenant wrongfully refuses to commence with the Lease.
(b)If Landlord defaults hereunder, Tenant shall have the option to
seek (i) specific performance of this Agreement, (ii) rescission of this Agreement, and
(iii) any and all remedies available at law and/or in equity, including damages suffered as
a result of such breach, which damages shall include, without limitation, all costs and
expenses incurred by Tenant in evaluating the Land and court costs and reasonable
attorneys' fees in collecting such sums. In any such event, Landlord shall reimburse
Tenant for all costs and expenses, including court costs and reasonable attorneys' fees,
incurred or paid (i) in connection with such legal proceedings, and (ii) in preparing this
Agreement and in examining and inspecting the Land and constructing the
Improvements.
8.AGENTS AND BROKERS. Each party hereto agrees to indemnify and
hold harmless the other party from all liability, expense, loss, cost or damage, including
reasonable attorneys' fees, that may arise by reason of any claim, demand or suit of any
agent or broker acting for such party. Tenant agrees to pay any commission owed to
Morton G. Thalhimer Inc. (the "Broker), pursuant to its separate agreement with the
Broker.
9.LANDLORD'S INDEMNIFICATION. Landlord shall indemnify,
defend and hold harmless Tenant, its officers, employees and partners, from and against
any loss, damage, cost or expense (including litigation costs and reasonable attorneys'
fees including, without limitation, those incurred in enforcing this indemnity) incurred by
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Tenant as a result of or in connection with the presence of Hazardous Materials,
including, without limitation, all removal and remediation costs, the costs of all tests,
borings, assessments and other studies and all fines and other government impositions.
This indemnification shall relate only to Hazardous Materials which (i) are determined to
have been present at, on or under the Land prior to Commencement, (ii) are discovered on
or before the date that Tenant stabilizes the soil (puts down stone) for its Improvements,
but in no event later than two (2) years following the Commencement Date, and (iii) are
not on or under the Land as a result of Tenant's activities thereon. Landlord shall not be
required to spend more than $10,000.00 to remediate such Hazardous Materials. If
Landlord chooses not to remediate because the cost of remediation of Hazardous
Materials will exceed $10,000, Tenant may either cancel the Lease and the parties shall
have no other obligation to each other, except as otherwise set forth herein, or Tenant
may remediate the Hazardous Materials at its expense. In the event Tenant remediates the
Hazardous Materials, it shall receive a $10,000 credit against the next due payment or
payments of Rent.
10.AGREEMENT TO LEASE; TERM. Subject to satisfaction of all of the
conditions precedent set forth herein,
(a)Landlord hereby leases to Tenant and Tenant hereby takes from
Landlord the Land and agrees to use, occupy and lease the same in accordance with the
terms and provisions hereof.
(b)The initial term (the "Initial Term") of this Lease shall commence
on the 1st day of July, 1998, or the date Tenant opens for business, whichever first occurs
(the "Commencement Date"), and shall end on the last day of the two hundred and
fortieth (240th) month after the first full calendar month of the Initial Term, unless sooner
terminated or extended as hereinafter provided. The term "Lease Year" as used herein
shall mean a period of twelve (12) consecutive calendar months. The First Lease Year
shall begin on the first full calendar month of the Initial Term ("Lease Year
Commencement Date") and end on the day immediately prior to the first anniversary of
the Lease Year Commencement Date. The Second Lease Year shall commence on the
next succeeding day. Subsequent Lease Years shall begin and end on the anniversary of
the first and last day of the Second Lease Year, respectively.
11.RENT.
(a)Tenant agrees initially to pay Landlord for the Land, without
demand, offset or deduction, base rent (the "Base Rent") in the amount of ONE
HUNDRED THOUSAND and 00/100 DOLLARS per year. Base rent shall be payable in
advance in lawful money of the United States in monthly installments of EIGHT
THOUSAND THREE HUNDRED AND THIRTY THREE and 33/100 DOLLARS
during the term of this Lease, including any renewal terms. All Base Rent shall be paid
in advance, beginning on the Commencement Date (the "Rent Commencement Date"),
and continuing thereafter on or before the first day of each month during the term of this
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Lease (the "Due Date"). Rent for any portion of a month shall be prorated. The term
"rent" shall be deemed to include the Base Rent and the Additional Rent (defined herein)
payable by Tenant hereunder. All rent due under this Lease shall be payable by Tenant
to:
Ethel W. Bumette
c/o Richard G. Bumette
1050-104 Washington Street
Raleigh, North Carolina 27605
or to such other place as Landlord shall from time to time designate. Rent mailed shall be
deemed paid on the date payment is mailed by Tenant, addressed as provided above with
postage prepaid.
(b)If Tenant fails to pay Base Rent or Additional Rent within ten (10)
days after the Due Date, Tenant shall promptly pay to Landlord the Rent, together with a
service charge of five percent (5%) of the monthly rent then due.
(c)The term "Additional Rent" as used herein shall mean all sums
payable by Tenant under this Lease (other than the Base Rent provided for above), and
any sums expended by Landlord to cure any default by Tenant (after notice and
expiration of any applicable cure period), and shall be deemed rent for purposes of
Landlord's rights and remedies with respect thereto. Base Rent and Additional Rent are
sometimes referred to together hereinafter as "Rent".
(d)Commencing the first day of the Fourth Lease Year, the Base Rent
shall be adjusted by the percentage which the Consumer Price Index ("CPI") published
by the Bureau of Labor Statistics of the U.S. Department of Labor, using the "Consumer
Price Index - All Items", on the first day of the ninth (9th) month of the Third Lease Year
has changed from the CPI on the Commencement Date, provided however, the Base Rent
shall not increase by more than 7.0% from the initial Base Rent. Thereafter, the Base
Rent shall be adjusted at the beginning of every fourth succeeding Lease Year, by
increasing the Base Rent then in effect by the change in the CPI on the first day of the
thirty-third month after the previous effective date for changing the Base Rent, but in no
event to exceed a change in the Base Rent of 7.0% over the Base Rent established on the
preceding Base Rent adjustment date. Base Rent during any Lease Year shall never be
lower than the Base Rent for the preceding Lease Year.
12.RENEWAL OPTION. Provided that at the time of the giving of Tenant's
renewal notice, Tenant is not in default beyond any applicable cure period in performance
of its covenants contained in this Lease, then Tenant is hereby granted an option to renew
this Lease for six (6) successive additional terms of five (5) year(s) each (the "Renewal
Terms") upon Tenant's notifying Landlord in writing of its election to renew no later than
180 days prior to the expiration of the Initial Term and/or each of the Renewal Terms, as
applicable. Any renewal notice once given shall be irrevocable, and failure to give notice
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within the required time will be a bar on the part of Tenant to any further option to renew
this Lease. Base Rent during each Lease Year of the Renewal Term shall be determined
as set forth in Paragraph 11(d) above.
13.USE OF PREMISES.
(a)The Leased Premises shall be used and occupied only for a facility
for the sale of gasoline and diesel fuel, with a convenience store, fast food and uses
accessory to the foregoing uses ("Tenant's Purposes") and for any other purpose in
conjunction therewith, allowable under applicable zoning laws, Tenant shall, at its own
risk and expense, obtain and keep in force all governmental licenses and permits
necessary for such use. Landlord and Tenant shall cooperate with each other in obtaining
any governmental permits or approvals necessary to permit the conduct of Tenant's
business operations at the Premises. Tenant covenants that it will at all times use the
Leased Premises in compliance with all applicable zoning laws, ordinances and
requirements and will not allow the Leased Premises to be used for any illegal purpose.
(b)Tenant shall indemnify and hold harmless the Landlord from any
and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses arising
during or after the term of this Lease and arising because Tenant causes or permits the
presence of any Hazardous Materials on or in the vicinity of the Leased Premises that
results in its contamination. The obligations of Tenant under this Paragraph 13(b) shall
survive the termination of this Lease.
14.RADIUS RESTRICTION. Landlord shall not, during the term of this
Lease or its Renewal Periods, lease other property within one (1) mile of the Premises for
purposes of a gasoline/convenience center. Such restriction shall be evidenced by a
document recorded prior to the Commencement Date.
15.CONSTRUCTION OF IMPROVEMENTS.
(a)All costs of construction, except as otherwise provided herein,
including, without limitation, engineering and architectural expenses, survey expenses,
costs of all required licenses and permits and actual construction costs, shall be borne
solely by Tenant. The improvements to be constructed by Tenant (the "Improvements")
shall be completed in accordance with plans and specifications ("Tenant's Plans") which
shall be submitted by Tenant to Landlord for Landlord's reasonable written approval prior
to the beginning of any such construction. If Landlord does not reject Tenant's Plans
within fifteen (15) days after receipt thereof, Tenant's Plans shall be deemed approved.
Tenant shall have the right, at Tenant's sole expense, from time to time to submit, in its
own name or in Landlord's name if so required, applications for such building permits
and other construction approvals, and with the prior written approval of the Landlord
which approval shall not be unreasonably withheld or delayed and which approval shall
be deemed given as to any provisional use permit affecting operating hours, and which
approval shall be given if the proposal does not materially adversely affect the value of
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the Land, rezoning, conditional use permits and all such other permits and approvals as
shall be related to use of the Land and the construction and operation of Improvements
thereon for Tenant's Purposes. Landlord will, at no cost to Landlord, join in such
applications if requested to do so by Tenant.
(b)Title to the Improvements and fixtures thereto shall be vested in
Tenant for the Initial Term, as it may be extended. At such time as this Lease expires or
is terminated, whether by acceleration or otherwise, and unless Tenant purchases the
Land, title to the Improvements shall automatically vest in Landlord without the necessity
of any further action by Landlord or Tenant.
(c)Should a claim of lien against the Land arise as a result of Tenant's
construction, maintenance and/or repair of the Improvements, Tenant will at its sole cost
and expense cause same to be discharged of record prior to the lien claimant enforcing its
lien against the Land and Tenant shall indemnify Landlord from loss, cost or expense
(including reasonable attorneys' fees) reasonably incurred in protecting the Land from
any such lien claim.
16.ASSIGNMENT AND SUBLEASING. Tenant may not assign the entire
Lease or sublet the whole of the Leased Premises, without in each instance having first
obtained Landlord's prior written consent, which Landlord may not unreasonably
withhold. Landlord's requirement that Tenant shall remain liable hereunder following
such assignment or subletting shall not be deemed to be unreasonable. No consent shall
be required where the assignment occurs because Tenant is merged into or acquired by
another entity. Landlord's consent to any assignment or subletting shall not be deemed a
consent to any subsequent assignment or subletting and any assignee of this Lease or
"subtenant" of the Leased Premises shall not further assign this Lease or further sublease
the Leased Premises without first obtaining the express written consent of Landlord.
Tenant shall promptly deliver to Landlord executed copies of all assignment or sublease
documents for the whole Leased Premises and shall cause any approved assignee,
sublessee or licensee to join in or execute an assumption document, in form reasonably
acceptable to Landlord, confirming such assignee's or subtenant's direct liability to
Landlord.
17.NET LEASE. It is the purpose and intent of the parties hereto that the
rent payable hereunder shall be absolutely net to Landlord. All costs, fees, interest,
charges, expenses, reimbursements and obligations of every kind and nature whatsoever
related to the Leased Premises (excluding, however, any debt service of Landlord's
mortgagee, which becomes due during the Initial Term and any Renewal Term),
including without limitation, taxes and insurance premiums as provided in Paragraph 18
and Paragraph 28 below, shall be paid and discharged by Tenant as Additional Rent.
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18.TAXES.
(a)As used herein, Taxes shall mean all real estate taxes, assessments
and other governmental levies and charges of every kind, whether general or special,
ordinary or extraordinary, unforeseen or foreseen (including any interest or penalty)
which may be imposed, levied, assessed or confirmed by any lawful taxing authorities or
which may become a lien or charge on or against all or any part of the Leased Premises at
any time during the Term or any Renewal Term, or any tax in lieu thereof. Provided the
Leased Premises is listed as a separate parcel and bills are sent from the taxing authorities
directly to Tenant, Tenant shall be liable for and shall pay at least thirty (30) days before
delinquency, directly to the taxing authority, as Additional Rent, all taxes assessed
against the Premises. Tenant shall provide Landlord evidence of such payment at least
ten (10) days before delinquency. Tenant shall have the right to inspect and review any
tax bill provided, however, in the event of a dispute or controversy, Tenant shall pay the
amount claimed when due, without prejudice to Tenant's right to protest such assessment.
Real estate taxes, assessments and other levies payable by Tenant hereunder shall be
prorated during the first and last years of this Lease on a calendar basis.
(b)Tenant shall be liable for and shall pay at least ten (10) days before
delinquency all taxes levied against any personal property or trade fixtures placed by
Tenant in or about the Leased Premises. If any such taxes are levied against Landlord or
Landlord's property, Tenant shall upon demand repay to Landlord the amount paid by
Landlord. In any such event, Tenant shall have the right, at Tenant's sole cost and
expense, to bring suit to recover the amount so paid under protest, and any amount so
recovered shall belong to Tenant.
19.MAINTENANCE, REPAIRS AND REPLACEMENTS.
(a)During the Initial Term and any Renewal Term, Tenant shall be
solely responsible for all maintenance, repairs and replacements of the Improvements
including, but not limited to, maintenance repairs and/or replacements to plumbing,
heating, electrical, air conditioning, plate glass and windows. Tenant shall also be solely
responsible for maintaining all the interior and exterior of the Improvements, including,
but not limited to, the repair and/or replacement of the foundations, ceilings, floors,
lighting, walls, roof, parking areas, driveways and landscaping of the Improvements and
Tenant's signs. During the Initial Term and any Renewal Term, Tenant shall maintain
and keep in good condition the Land, Improvements and appurtenances thereof, ordinary
wear and tear excepted. Landlord shall have no responsibility for maintenance, repair or
replacements to the Improvements, whether structural or nonstructural.
(b)Upon the termination of this Lease, Tenant shall deliver possession
of the Leased Premises ,broom clean and in good condition, normal wear and tear
excepted.
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20.ALTERATIONS, CHANGES, AND IMPROVEMENTS.
(a)The cost of making such alterations, improvements or additions to
the Leased Premises and preparing said plans shall be borne by Tenant. All such work
shall be done in a good and workmanlike manner. All such work shall comply with all
laws, ordinances or regulations of any governmental or administrative agency having
jurisdiction over the Leased Premises, including any appropriate boards, commissions
and underwriting agencies now or hereafter exercising similar rights and powers.
(b)Tenant shall have the right at all times and at its sole expense to
install Tenant's shelves, bins, equipment, and trade fixtures, hereinafter collectively called
"Tenant's Trade Fixtures", provided Tenant complies with all applicable governmental
laws, ordinances and regulations.
(c)Tenant may, upon the termination of this Lease, remove any of
Tenant's previously installed Trade Fixtures, provided further that Tenant shall
immediately repair any damage caused by such removal. If requested by Landlord,
Tenant shall remove all of the Trade Fixtures. In such event, any Trade Fixtures not
removed upon termination of this Lease shall become the property of Landlord for
disposal by Landlord in any manner Landlord may elect.
21.ESTOPPEL CERTIFICATES. Tenant and Landlord each agree at any
time and from time to time within fifteen (15) days after Notice to execute, acknowledge
and deliver to the other a statement, in writing, and in form and substance reasonably
acceptable to Landlord and Tenant, certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications that this Lease is in full force and
effect as modified and stating the modifications), the dates to which the rent and other
charges have been paid in advance, if any, and whether or not there exists any default in
the performance of any term, condition or covenant of this Lease and, if so, specifying
each such default, it being intended that any such statement delivered pursuant to this
paragraph may be relied upon by Landlord, Tenant and by any mortgagees, prospective
Tenants or prospective mortgagees of Landlord's or Tenant's interest in all or any part of
the Leased Premises.
22.UTILITIES. Tenant shall arrange for construction, installation,
connection and operation of, and shall pay the cost of, all utility services, all charges for
water, sewer, gas, heat, power, telephone service and all other services to the Leased
Premises during the term of this Lease and Tenant shall make payments when due
directly to the utility or service company involved. Tenant's obligation to pay its utility
bills due and payable during the term of this Lease shall survive the termination of this
Lease. Landlord shall not be required to pay for any connection fees, services, supplies
or upkeep in connection with utilities or other services to the Leased Premises. Landlord
shall not be liable for damages or otherwise to Tenant or to person or property, if any
utility service to the Leased Premises is interrupted or terminated, unless caused by
Landlord's gross negligence or willful misconduct, nor shall any such interruption or
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termination be construed as an eviction (actual or constructive) of Tenant, nor work an
abatement of any rent, nor relieve Tenant from the obligation to fulfill each and every
covenant or condition of this Lease.
23.COMPLIANCE WITH LAWS, REGULATIONS AND
RESTRICTIONS. Tenant shall comply with all governmental laws, rules, orders,
ordinances, directions, regulations, and requirements of federal, state, county and
municipal authorities, now in force or which hereafter may be in force, which shall
impose any duty upon Landlord or Tenant with respect to the use, occupation or
alteration of the Leased Premises, or the operations conducted by Tenant at the Premises,
whether material or incidental to said use and shall promptly comply with all changes in
governmental laws, ordinances, regulations, orders and directives and all restrictions and
covenants of record affecting the Leased Premises.
24.FIRE AND CASUALTY DAMAGE. In the event the Leased Premises
or the Improvements are damaged or destroyed by fire or other cause, Tenant shall give
immediate notice thereof to Landlord. The rights and obligations of Landlord and Tenant
in the event of such casualty shall be as follows:
(a)If the Leased Premises or Improvements are damaged by fire or
other cause during the last five (5) years of the Initial Term or any Renewal Term, Tenant
may elect to terminate the Lease, and the proceeds from any fire and casualty insurance
policies applicable to the Improvements and the Leased Premises shall be retained by
Landlord. If the Tenant elects to repair the Leased Premises and the Improvements
during the last five (5) years of the Initial Term or any Renewal Term, or the Leased
Premises or the Improvements are damaged by fire or other cause at any other time
during the term of this Lease, this Lease shall not terminate, and Tenant shall, regardless
of the adequacy of insurance proceeds proceed with reasonable diligence to rebuild or
repair the Leased Premises to substantially the condition that existed immediately prior to
such damage. In such event, any casualty insurance proceeds received by Landlord shall
be paid over to the Tenant within ten (10) days after receipt by Landlord.
(b)Except to the extent specifically provided for in this Lease, none of
the Rent payable by Tenant, nor any of Tenant's other obligations under any provisions of
this Lease, shall be affected by any damage or destruction of the Leased Premises by any
cause whatsoever, nor shall Landlord have any liability to Tenant as a result of any
casualty
25.CONDEMNATION.
(a)For the purpose of this Lease, "taking" shall mean any
condemnation or exercise of the power of eminent domain by any public authority vested
with such power or any taking in any other manner for public use, including a private
purchase in lieu of condemnation by a public authority vested with the power of eminent
domain; the "date of any taking" shall mean the earlier of the date upon which title to the
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Land and/or Improvements or portion thereof taken is vested in the condemning authority
or the date upon which possession of the Land and/or Improvements is taken by the
condemning authority; and "substantially all of the Land" shall mean (i) so much of the
Land and/or Improvements as, when taken, leaves the untaken portion unusable under
applicable ordinances and restrictions for the continued feasible and economic operation
of the Land and Improvements by Tenant for the same purposes as immediately prior to
such taking or as contemplated herein in Tenant's sole discretion, or (ii) so many of the
parking spaces within the Land as reduces the parking ratio below that which is required
by the zoning ordinance applicable to the Land, and Landlord is unable, after reasonable
efforts with due diligence, to provide substantially similar alternative parking within sixty
(60) days after such taking.
(b)In the event of a taking of all or substantially all of the Land, the
Term shall automatically cease and terminate on the date of such taking; however, a
taking of parking spaces under clause (ii) of Subparagraph 25(a) above shall not terminate
this Lease unless Tenant elects to terminate same by written notice to Landlord. All Rent
and other sums payable by Tenant hereunder shall be apportioned and paid through and
including the date of such taking.
(c)In the event of a taking of a portion of the Land which does not
adversely affect Tenant's use thereof, then this Lease and all the duties and obligations of
Tenant under this Lease shall remain unmodified, unaffected and in full force and effect
without reduction or abatement in rent. In the event of such a taking, Tenant shall
promptly commence and diligently prosecute to completion any demolition, repair,
restoration, rebuilding, reconstruction or replacement of the Improvements which is
necessary to return the Land and Improvements to a condition suitable for use and
operation for the same purposes as immediately prior to such taking. Notwithstanding
anything herein to the contrary, the portion of any award allocable to the Improvements
shall be paid to the Tenant.
(d)In the event of a taking of the Land and/or Improvements or any
portion thereof for temporary use which does not adversely affect Tenant's use thereof,
without the taking of the fee simple title therein, then this Lease shall remain in full force
and effect, and such taking shall not relieve Tenant from its duty and obligation fully and
completely to keep, observe, perform, satisfy and comply with each and every agreement,
term, covenant, condition, requirement, provision, and restriction of this Lease. All
awards, damages, compensation and proceeds payable by reason of such temporary
taking of the Land and/or Improvements for periods prior to the termination of this Lease
shall be payable to Tenant, and all such awards, damages, compensation and proceeds for
periods after the termination of this Lease shall be payable to Landlord.
(e)In the event of a taking described in Subparagraph 25(b) above, the
condemnation award for the Land shall belong to the Landlord and the condemnation
award for the Improvements shall be paid to the Tenant. Tenant shall not be entitled to
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any portion of the award based on or attributable to the unexpired portion of the Term, it
being conclusively presumed that Rent paid by Tenant is fair market value Rent.
(f)In the event of a taking described in Subparagraph 25(c) above, the
condemnation award for the Improvements shall be paid to Tenant and the condemnation
award for the Land shall be paid to Landlord.
26.LANDLORD'S PERFORMANCE OF TENANT'S OBLIGATIONS.
If Tenant fails to perform any of its obligations hereunder within the time periods
specified herein, at its option Landlord may, but shall not be obligated to perform the
obligations of Tenant which Tenant has failed to perform and Landlord shall have no
liability to Tenant for any loss or damage resulting in any way from such action by
Landlord. Any amounts advanced in so performing the obligations of Tenant shall be
Additional Rent and shall bear interest at the rate of the lesser of ten percent (10%) per
annum or the prime lending rate of NationsBank N.A., Richmond, Virginia, in effect
from time to time (or, if lower, the highest lawful rate) from the date expended until
repaid and shall be due and payable within fifteen (15) days of Tenant's receipt of written
notice of Landlord's payment thereof, and the failure to pay within such period shall
constitute an independent Event of Default hereunder unless otherwise specified herein.
Payment or performance by Landlord of the obligations of Tenant shall not waive or cure
any breach occasioned by Tenant's failure or refusal to pay or perform same.
27.INDEMNIFICATION. Tenant shall protect, indemnify and save
harmless Landlord from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses) imposed upon or incurred by or asserted against Landlord by reason of
(a) any occurrence, injury to or death of persons (including Tenant's workmen) or loss of
or damage to property occurring on or about the Leased Premises or any part thereof or
the adjoining sidewalks, curbs, streets or ways which is attributable in whole or in part to
Tenant, its agents, contractors, employees, invitees or guests or which arises out of, or in
the course of Tenant's use and occupancy of the Premises, (b) any use, non-use or
condition of the Leased Premises or any part thereof or the adjoining sidewalks, curbs,
streets or ways, (c) any failure on the part of Tenant to perform or comply with any of the
terms of this Lease, or (d) performance by Tenant of any labor or services or the
furnishing of any materials or other property in respect of the Leased Premises or any part
thereof. The obligations of Tenant under this paragraph arising by reason of any such
occurrence having taken place during the term of this Lease shall survive any expiration
or termination of this Lease
28.INSURANCE.
(a)At all times during the term of this Lease and at its sole cost and
expense, Tenant shall obtain, maintain and keep in full force and effect, at its sole
expense, the following insurance:
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(1)Fire and casualty insurance on the Leased Premises,
including standard multi-peril endorsements and coverage against all risks included
within the term "extended coverage", together with vandalism and malicious mischief
insurance, in an amount not less than the current replacement value of all Improvements,
exclusive of the foundation, footings and parking area;
(2)Fire insurance, including extended coverage, vandalism and
malicious mischief upon property of every description owned by Tenant and located in
the Improvements or for which Tenant is legally liable or installed by or on behalf of
Tenant including, without limitation, furniture, fittings, installations, fixtures, inventory
and any other personal property in an amount not less than the full replacement cost
thereof;
(3)Commercial general liability insurance coverage to include
personal injury, bodily injury, broad form property damage, operations hazard, owner's
protective coverage, contractual liability, fire damage liability (minimum $1,000,000.00
coverage) products and completed operations liability in limits of not less than One
Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00)
general aggregate;
(4)Worker's compensation and employer's liability insurance
in accordance with applicable law;
(5)During the construction of the Improvements or any
permitted alterations which are not covered by Tenant's liability insurance as required
above, Tenant shall maintain builder's risk insurance in such amounts as shall be
reasonably required by Landlord given the cost of the construction.
(b)All policies shall be taken out by Tenant with insurers duly
authorized to do business in the State of North Carolina, reasonably acceptable to
Landlord, and in form reasonably satisfactory from time to time to Landlord. Upon
request, Tenant agrees that certificates of insurance on the insurer's standard form, will be
delivered to Landlord as soon as practicable after the placing of the required insurance,
but in no event later than the Commencement Date, as to initial coverage, and ten (10)
days prior to the expiration of the policies as to renewals of coverage. All policies shall
obligate the insurers to notify Landlord in writing not less than thirty (30) days prior to
any material change, reduction in coverage, cancellation or other termination thereof,
including those for nonpayment of premium. The policies referred to in 28(a) (1)-(3)
shall name, as additional insureds, Landlord and any other entity having an insurable
interest or liability in or relating to the Leased Premises (including any mortgagee of
Landlord).
(c)The coverage limitations for commercial general liability insurance
shall be reviewed at least every ten (10) years. If the limits of such coverage are less than
generally carried by businesses similar to Tenant's business on the Premises in the
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general area of the Land, such coverages shall be increased to typical coverage limitations
for such businesses.
29.DEFAULT BY TENANT.
(a)The following events shall be deemed to be "event of default" by
Tenant under this Lease:
(1)Tenant's failure to pay any overdue installment of the Base
Rent or Additional Rent within ten (10) days after notice thereof to Tenant or Tenant's
failure to comply with any term, provision or covenant of Paragraph 28, provided
Landlord shall be required to give only two (2) notices of non-receipt of Rent within any
twelve (12) month period, after which Tenant's mere failure to pay Rent or Additional
Rent within ten (10) days after the due date thereof shall constitute an event of default;
(2)Tenant's failure to comply with any term, provision or
covenant of this Lease not described in Subparagraph 29(a)(I), if such failure shall
continue for more than thirty (30) days after Notice thereof to Tenant;
(3)If Tenant shall become insolvent, or shall make a transfer in
fraud of creditors, or shall make an assignment for the benefit of creditors;
(4)If Tenant shall file a petition under any section or chapter
of the Bankruptcy Code, as amended, or under any similar law or statute of the United
States or any state thereof; or Tenant shall be adjudged bankrupt or insolvent in
proceedings filed against Tenant thereunder;
(5)If a Receiver or Trustee shall be appointed for all or
substantially all of the assets of Tenant and such Receiver or Trustee shall within a
reasonable time fail to (A) affirm this Lease, (B) provide adequate assurances as to its
ability to perform all of the terms and conditions of this Lease as a Receiver or Trustee
for Tenant, (C) cure all defaults, and (D) pay all damages incurred by Landlord as a result
of Tenant's defaults; and
(6)If Tenant shall do or permit to be done anything which
creates a lien upon the Leased Premises which is not bonded off in accordance with
applicable law within ninety (90) days.
(b)Upon the occurrence of any of such event of default, Landlord
shall have the right at Landlord's election to pursue, in addition to and cumulative of any
other rights Landlord may have, at law or in equity, any one or more of the following
remedies without any notice or demand whatsoever:
(1)To give Tenant written notice of Landlord's intent to
terminate this Lease, in which event, on the date specified in Landlord's notice, Tenant's
16
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
right to possession of the Leased Premises shall cease, this Lease shall terminate and
Tenant shall have no further rights or obligations hereunder;
(2)Upon the occurrence of any event of default and provided
Landlord shall not have terminated this Lease, Tenant will continue to pay to Landlord
the Base Rent, Additional Rent and other sums required to be paid by the Tenant
hereunder, and acceptance of such rent shall not constitute a waiver of any default
hereunder; thereafter, until the end of what would have been the Initial Term (or any
Renewal Term) and whether or not the Premises or any part thereof shall have been
repossessed, Tenant shall be liable to Landlord for, and shall pay to Landlord, as
liquidated and agreed current damages the Base Rent, Additional Rent and other sums
which would be payable under this Lease by Tenant through the balance of the Initial
Term (or any Renewal Term). Tenant will pay such current damages on the days on
which Rent would have been payable under this Lease, and Landlord shall be entitled to
recover the same from Tenant on each such day.
(3)Landlord may from time to time, without terminating this
Lease, make such alterations and repairs as are commercially necessary in order to relet
the Leased Premises for any use or purpose Landlord deems feasible, and relet the Leased
Premises or any part thereof for such term or terms and for such rent and upon such other
terms and conditions as Landlord may determine commercially advisable in its sole
discretion. Upon each such reletting all rentals and other sums received by Landlord
from such reletting shall be applied, first, to the payment of any indebtedness other than
rent due hereunder from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including reasonable brokerage fees and attorneys' fees and the
costs of any alterations and repairs; third, to the payment of rent and other charges due
and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in
payment of future rent as the same may become due and payable hereunder. If such
rentals and other sums received from such reletting during any month be less than that to
be paid during that month by Tenant hereunder, Tenant shall pay such deficiency to
Landlord; if such rentals and the sums shall be more, Tenant shall have no right to, and
shall receive no credit for, the excess. Such deficiency shall be calculated and paid
monthly. Notwithstanding any such reletting without termination, Landlord may at any
time elect to terminate this Lease for such previous breach
(4)Any damage or loss of rent sustained by Landlord may be
recovered by Landlord, at Landlord's option, at any time after the occurrence of an event
of default, at the time of any reletting or termination, in a single action or in separate
actions, from time to time, as such loss of rents or damages shall accrue. In case suit
shall be brought for recovery of the Leased Premises, for the recovery of rent or any other
amount due under the provisions of this Lease, or because of the breach of any other
covenant herein contained on the part of Tenant to be kept and performed, and a breach
shall be established, Tenant shall pay to Landlord all expenses incurred therefor,
including reasonable attorneys' fees.
17
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
(c)Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent
due to Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions, and covenants herein contained.
30.LANDLORD'S RIGHT OF ENTRY. Landlord and its authorized
agents or designees shall have the right upon twenty-four (24) hours prior written notice
(except in event of emergency) to enter the Leased Premises at any reasonable time for
the following purposes: (a) inspecting the general condition and state of repair of the
Leased Premises or (b) the showing of the Leased Premises for lease if the Tenant shall
have not renewed or extended this Lease within the time herein provided. No sign
advertising the Leased Premises for sale or rent shall be placed on the Leased Premises
while the Lease is in effect, except during the last three (3) months of the term (no option
to extend having been exercised). The foregoing notwithstanding, Landlord and its
agents and designees, shall also have the right to enter the Leased Premises at any time
there is an emergency in the Leased Premises or in the Improvements.
31.QUIET ENJOYMENT. Landlord represents that it has full right and
power to execute this Lease and to grant the estate demised herein and that Tenant, upon
payment of the rents herein reserved, and performance of all of the terms, conditions, and
covenants herein contained, shall have, hold, and enjoy the Leased Premises during the
full term of this Lease, and any extension hereof, subject and subordinate to all of the
terms, covenants and conditions of this Lease, free from the claims of any person
claiming by, through or under Landlord.
32.HOLDING OVER. If Tenant, or any of its successors in interest, shall
remain in possession of the Leased Premises, or any part thereof, after the expiration of
the term of this Lease, such holding over shall constitute and be construed as, at
Landlord's option, a tenancy at sufferance or as a tenancy from month-to-month only, at a
monthly rental of two hundred percent (200%) of the monthly rent applicable during the
last month of the term of this Lease or the last prior renewal thereof. Tenant shall also
pay any Additional Rent attributable to Tenant's occupation of the Leased Premises.
Tenant shall also be subject to all of the conditions, provisions and obligations of this
Lease insofar as the same are applicable to a month-to-month tenancy. Nothing
contained herein shall constitute permission granted or inferred for Tenant to remain in
possession beyond the exact termination date of this Lease, as extended by any renewals
or options unless specifically granted by Landlord in writing. Acceptance of rent shall
not constitute a renewal of this Lease.
33.SURRENDER OF LEASE NOT MERGER. The voluntary or other
surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a
merger and shall, at the option of Landlord, terminate all or any existing subleases, and/or
sub-tenancies, or may, at the option of Landlord, act as an assignment to it of any or all
such subleases or sub-tenancies, if any.
18
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
34.ATTORNEYS' FEES. In any action to enforce this Lease, recover
possession, collect any amount due or for relief or damages resulting from a breach of
any covenant under this Lease, declaratory or otherwise, the defaulting or non-performing
party shall pay the reasonable attorney's fees of the prevailing party.
35.NOTICES. Any notice, statement, demand, request, consent, approval,
authorization, offer, agreement, appointment or designation under this Lease by either
party or its counsel to the other ("Notice") shall be in writing and shall be sufficiently
given and served upon the other party if hand delivered, sent by certified mail, return
receipt requested, postage prepaid, or by overnight delivery by a nationally recognized
courier service addressed as follows:
IF TO TENANT:Brian J. Conron, Vice President
East Coast Oil Corporation
1420 East Commerce Road
Richmond, Virginia 23224-7598
with a copy to:James W. Theobald, Esquire
Hirschler, Fleischer, Weinberg, Cox & Allen
701 East Byrd Sheet
Richmond, Virginia 23219
IF TO LANDLORD:Richard G. Burnette, Jr.
1040-104 Washington Street
Raleigh, North Carolina 27605
with a copy to:Charles L. Fulton, Esquire
Manning, Fulton & Skinner, P.A.
500 UCB Plaza
3605 Glenwood Avenue
Raleigh, North Carolina 27612
or to such other place as Landlord or Tenant may from time to time designate by Notice
to the other party. Notice sent in compliance with this paragraph shall be deemed given
upon receipt if given by hand, on the third (3rd) day after the day on which it is sent if
sent by mail, or on the next day if sent by overnight delivery service. Failure to provide
copies will not invalidate notices otherwise properly given.
36.WAIVER. Landlord's delay or failure to declare or enforce Tenant's
breach of any term, covenant, or condition herein contained shall not be deemed to be a
waiver of such term, covenant or condition for any subsequent breach of the same or any
other term, covenant, or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by
Tenant of any term, covenant, or condition of this Lease, other than the failure of Tenant
19
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
to pay the particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent.
37.GOVERNING LAW. This Lease shall be construed and governed by the
applicable laws of the State of North Carolina.
38.RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease
shall be construed by the parties hereto, or by any third party, as constituting the parties
as principal and agent, partners or joint venturers, nor shall anything herein render either
party liable for the debts and obligations of any other party, it being understood and
agreed that the only relationship between Landlord and Tenant is that of landlord and
tenant.
39.MISCELLANEOUS PROVISIONS.
(a)Titles Etc. The marginal headings or titles to the paragraphs of
this Lease are not a part of this Lease and shall have no effect upon the construction or
interpretation of any part of this Lease. Whenever the singular.number is used in this
Lease and when required by the context, the same shall include the plural, and the
masculine gender shall include the feminine and neuter genders, and the word "person"
shall include corporation, firm, or association.
(b)Entire Agreement. This instrument contains all of the agreements
and conditions made between the parties to this Lease and may not be modified orally or
in any manner other than by an agreement in writing signed by all the parties to this
Lease, or their respective successors in interest.
(c)Time of the Essence. Except as otherwise specifically provided
herein, time is of the essence of each term and provision of this Lease.
(d)Successors. Subject to the provisions of Paragraph 16, the terms
and provisions of this Lease shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors, and assigns of Landlord and 'Tenant.
(e)Severability. If any provision of this Lease shall at any time be
deemed to be invalid or illegal by the entry of a final judgment from a court of competent
jurisdiction, which judgment is not subject to appeal, then, in that event, this Lease shall
continue in full force and effect with respect to the remaining provisions of this Lease as
if the invalidated provision had not been contained herein.
Memorandum of Lease. Landlord agrees to cooperate with Tenant
to record this Lease, or a memorandum thereof, if recordation is expressly requested by
Tenant.
20
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
(g)Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be an original but all of which shall together constitute
one and the same instrument.
(h)Authorization. Tenant represents that it is duly authorized to do
business in North Carolina and will remain so during the term hereof, and that it has been
in all respects duly authorized to enter into and perform this Lease.
(i)Force Majeure. Whenever a day is appointed herein on which, or a
period of time is designated within which, either party is required to do or complete any
act, matter or thing, the time for the doing or completion thereof shall be extended by a
period of time equal to the number of days on or during which such party is prevented
from, or is materially interfered with in the course of, the doing or completion of such act,
matter or thing because of strikes, lock-outs, embargoes, unavailability of labor or
materials, wars, insurrections, rebellions, declaration of national emergencies, acts of
God, or other causes beyond such party's reasonable control (financial inability
excluded); provided, however, nothing contained in this subparagraph shall excuse either
party from the prompt payment of any amount payable by such party hereunder except as
may be expressly provided elsewhere in this Lease. A party relying on Force Majeure to
obtain an extension for fulfilling an obligation hereunder must notify the other party of
the event which is the basis for the extension within ten (10) days following such event.
Such notice shall also include the number of additional days which are needed in order to
fulfill such party's obligation.
Organization. The officer of Tenant executing this Lease on
Tenant's behalf hereby makes the following representations, in his corporate capacity,
upon which Landlord is relying in consenting hereto:
(1)That Tenant has been duly organized, is validly existing
and is in good standing in the State of North Carolina, and is, as of the date hereof, in
good standing to transact business in the State of North Carolina; and
(2)That the officer executing this Lease on Tenant's behalf has
been duly authorized by all necessary corporate action to execute the same, and that upon
the execution hereof, this Lease shall be the valid and binding obligation of Tenant.
(k)No Waiver. The failure of the Landlord or the Tenant to insist
upon the strict performance of any of the terms, conditions or covenants hereof shall not
constitute or be construed as a waiver or relinquishment for the future of any such terms,
conditions or covenants and such terms, conditions or covenants shall continue in full
force and effect. The payment of rent by the Tenant, or the receipt of the payment of rent
by the Landlord, with knowledge of the breach of any covenant herein contained, shall
not be deemed a waiver of such breach on the part of either party.
21
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed
this Lease as of the day and year above written.
LANDLORD:
Date:
Date:
Date:
Ethel W. B rnette
Richard G. Burnette, Jr.
0 3,
a Burnette Bagle
TENANT:EAST COAST OIL CORPORATION,
a Virginia corporation
Date:ceiblii
#44441 - 15435.00838 v4
By:
Title:fizestr,E-PT
22
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
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DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
MONITORING WELL CONSTRUCTION DETAILS
FLUSH GRADE MANHOLE
CROSS SECTIONAL VIEW
(NOT TO SCALE)
LOCKABLE WELL CAP PROTECTIVE CASING AND CONCRETE PAD
L1 CASING MATERIAL steel
CASING DIAMETER 8 inches
CASING LENGTH 12 inches
PAD DIMENSIONS 2 feet x 2 feet
HEIGHT ABOVE GROUND flush mounted
WELL CASING
MATERIAL sch 40 PVC
DIAMETER 2 inches
JOINT TYPE flush threaded
LENGTH 5 feet
L2 BACKFILL AROUND CASING
MATERIAL cement grout
THICKNESS 3 feet
SEAL
TYPE OF SEAL bentonite
L4 THICKNESS 1 feet
FILTER PACK
TYPE OF FILTER #2 silica sand
DISTANCE ABOVE SCREEN 1 feet
TOTAL FILTER PACK FOOTAGE 15 feet
WELL SCREEN
L3 SCREEN MATERIAL sch 40 PVC
DIAMETER 2 inches
LENGTH 15 feet
SLOT SIZE 0.010 inches
DEPTH TO BOTTOM OF
WELL 20 feet
DEPTH TO BOTTOM OF
BOREHOLE 20 feet
L1 =0 FT.
L2 =5 FT.DIAMETER OF BOREHOLE 6 inches
L3 =15 FT.
L4 =20 FT.DRILLING SUBCONTRACTOR:Geologic Exploration, Inc.
DRILLER ADDRESS:176 Commerce Blvd, Statesville, NC 28625
DRILLER CERTIFICATION #:2581
TITLE Well Information
Circle K Store #2723479
1900 Highway 70 East 2725 East Millbrook Road, Suite 121
Garner, Wake County Raleigh, North Carolina 27604
North Carolina
FILE PREP. BY REV. BY DATE
MJ MJ 1/18/2024
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719
DocuSign Envelope ID: C3F7CBC2-E14D-4712-8A54-EFB1FE6F9719