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HomeMy WebLinkAbout2019-R-1 PART 2 Indiana Department of Environmental Management IDEM We Protect Hoosiers and Our Environment. ANNIVERSARY 100 N.Senate Avenue • Indianapolis,IN 46204 (800)451-6027 • (317)232-8603 • vw.idem.IN.gov GG"'' vnMichael R.Pence Carol S.Comer Governor Cone ssioner November 4, 2016 G. Michael Patarino Jeff Gateway LLC 47 Pennsylvania Street Indianapolis, Indiana 46204 Re: Comfort Letter— Bona Fide Prospective Purchaser Jeffersonville Gateway Project Former R&W Tire 10th & Spring Streets Brownfield #4020016 CSX Property 9th Street &VFW Boulevard Brownfield #4110802 Industrial Water Recycling Company 600 W 9th Street UST FID#17677 Brownfield #4160211 Jeffersonville, Clark County Dear Mr. Patarino: In response to the request by ATC Group Services LLC (ATC) on behalf of Jeff Gateway LLC (Prospective Purchaser) to the Indiana Brownfields Program (Program) for assistance concerning the properties located at the addresses listed above in Jeffersonville which make up the Jeffersonville Gateway Project (Site), the Indiana Department of Environmental Management (IDEM) has agreed to provide this Comfort Letter to outline applicable limitations on liability with respect to hazardous substances and/or petroleum products found on the Site. This letter does not provide a release from liability, but provides specific information with respect to some of the criteria the Prospective Purchaser must satisfy to qualify for relief from potential liability related to hazardous substances contamination under the bona fide prospective purchaser (BFPP) exemption under Indiana Code (IC) § 13-25-4-8(b) (incorporating section 101(40) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et. seq., and 42 U.S.C. § 9607(r)) and potential liability for petroleum contamination under the BFPP exemption under IC § 13-23-13 and IC § 13-24-1. This letter will also address the reasonable steps IDEM recommends the Prospective Purchaser undertake to prevent or limit human, environmental, and/or natural resource exposure to previously released hazardous substances and/or An Equal Opportunity Employer 0 ®Recycled Paper A State that Works Jeffersonville Gateway, Jeffersonville— BFPP Comfort Letter BFD#4020016, 4110802, &4160211 November 4, 2016 Page 3 of 15 is situated in a residential, commercial, and light industrial area with redevelopment plans expected to include four commercial buildings and associated parking areas. Current uses of the adjoining properties include the following: to the north, bordered by an exit ramp for Interstate 65 and 10th Street followed by a medical building and municipally owned wastewater treatment facility; to the south, by vacant land and an automotive dealership beyond 7th Street; to the east, bordered by Indiana Avenue, followed by residential properties; and to the west bordered by Interstate 65. Phase I Environmental Site Assessments Former R&W Tire & CSX Property(R&W/CSX) As part of this request, the Prospective Purchaser provided the Program with a Phase 1 Environmental Site Assessment dated November 20, 2015 (R&W/CSX Phase I ESA— November 2015) by Cardno ATC (now known as ATC) and Phase 1 Environmental Site Assessment Update, dated August 11, 2016 (R&W/CSX Phase I ESA Update —August 2016)2 by ATC prepared for the City of Jeffersonville, Keystone Realty Group, LLC, Jeff Gateway LLC, and Keystone Development. The Phase I was conducted utilizing the American Society for Testing and Materials (ASTM) Practice E1527-13, Standard Practice for Environmental Site Assessment, which satisfies the federal "All Appropriate Inquiries" (AAI) rule set forth in 40 CFR Part 312. In an effort for the Prospective Purchaser to qualify as a BFPP, G. Michael Patarino, Authorized Representative Jeff Gateway LLC, provided answers to the user-specific questions to ensure its satisfaction of the federal AAI rule. The R&W/CSX Phase I ESA— November 2015 and R&W/CSX Phase I ESA Update—August 2016 identified the following recognized environmental conditions (RECs): On-Site: • Documented soil and ground water contamination. • Historical use of portions of the Site as gasoline stations (927 Indiana Avenue and 821 Indiana Avenue). • Historical use of the Site as a junkyard (829 Indiana Avenue), • Historical use of the Site as a railroad corridor with documented metals contamination. • Soil piles generated during construction of a drainage ditch located in the central portion of the Site which could potentially be contaminated by historical Site uses. 2 This Phase I and Phase I ESA Update also covered a parcel that is not part of the Site. Jeffersonville Gateway, Jeffersonville—BFPP Comfort Letter BFD#4020016, 4110802, &4160211 November 4, 2016 Page 5 of 15 to qualify as a BFPP, Mr. G. Michael Patarino, Authorized Representative for Jeff Gateway LLC, provided answers to the user-specific questions to ensure its satisfaction of the federal AAI rule. The Phase I identified the following RECs associated with the Site: On-Site • Historical use of a 1,000 gallon gasoline UST located on the northwestern portion of the property, subsequently removed in 1991. • Prior subsurface investigations documented petroleum and lead contamination in the soil near the former UST location. • The following documented releases have occurred on the property: 874,000 gallons of wastewater/oil to the municipal sewer system in 1989; 80,000 gallons of commercial wastewater spilled affecting 3,000 square feet of the property in 1994; and a release of hydrogen sulfide vapor in 1994. • Historical use of the following in association with the IWRC operations: oil/water separator pits on the northwest corner of the property; eight heavy- metal wastewater settling pits; sludge filter press; and a 5,000 gallon cooking oil UST. All of these features have since been removed from the property. • Historical use of the property as a city dump from the late 1940s through the early 1950s. To meet the requirements of ASTM Practice E1527-13, ATC evaluated the presence or likely presence of vapor-phase chemicals of concern in soil at the Site that might result from contaminated soil and/or ground water either on or near the Site, specifically the Site itself, by conducting a subsurface investigation, the results of which are discussed below. The presence of elevated TPH4 and the past use of a gasoline UST on the property represent a potential vapor encroachment condition. NFA Determination —R&W Tire, 955 Spring Street, Parcel 6 On January 24, 2012, the Program issued a No Further Action (NFA) Determination Letter to Mr. Charles R. Simms of R&W Realty, LLC, for the R&W Tire facility located at 955 Spring Street. The NFA letter concluded that the petroleum contamination documented on the property would not pose any exposure risk because the conditions met the criteria for a non-default commercial/industrial closure under the then-applicable IDEM Risk Integrated System of Closure (RISC) and that an A As of June 2010 (for ground water) and March 2012 (for soil), IDEM no longer evaluates TPI I contamination in soil and ground water when determining RISC or RCG closure. Therefore, the levels of TPFI detected in soil and/or ground water are not relevant for purposes of evaluating environmental conditions on the Site and are presented for informational purposes only. Jeffersonville Gateway, Jeffersonville—BFPP Comfort Letter BFD#4020016, 4110802, &4160211 November 4, 2016 Page 7 of 15 contact screening levels (RDCSLs and IDCSLs, respectively); soil samples collected between 0 and 18 feet bgs were compared to the excavation worker soil exposure direct contact screening levels (EX DCSLs); and, soil samples collected at depths greater than 18 feet bgs were not evaluated for purposes of closure because of the unlikely risk of exposure to soil at that depth. Ground water samples were compared to residential tap ground water screening levels (Res TAP GWSLs) and residential vapor exposure ground water screening levels (Res VE GWSLs), as well as commercial/industrial vapor exposure ground water screening levels (Indus VE GWSLs). Exterior soil gas samples were compared to the calculated RCG residential exterior soil gas screening levels (Res SGe SLs) and calculated commercial/industrial exterior soil gas screening levels (Indus SGe SLs). CSX Phase II—April 2011 In March 2011, eight soil borings (S-1 through S-8) were advanced on Parcel 1. Six soil samples (S-1A through S-6A) were collected from 0 to 2 feet bgs, and eight composite soil samples (S-1B through S-8B)were collected from 2 to 12 feet bgs.5 One ground water sample (S-3W) was collected. Soil and ground water samples were analyzed for polynuclear aromatic hydrocarbons (PAHs) and Resource Conservation and Recovery Act (RCRA) metals. Analytical results detected the following: • In soil, detected arsenic concentrations at multiple locations exceeded its RDCSL and/or IDCSL; detected chromium6 concentrations at four locations exceeded the RDCSL for hexavalent chromium and at two locations exceeded the IDCSL for hexavalent chromium but all were below the EX DCSL for hexavalent chromium; the detected mercury concentration in sample S-1A exceeded its RDCSL, IDCSL, and EX DCSL; detected arsenic concentrations in the composite soil samples exceeded its RDCSL and/or IDCSL; and all other detected metals were at levels below their respective RDCSLs. See Table 2, attached, for a summary of soil analytical results above applicable RCG screening levels. • Detected lead and chromium6 concentrations in ground water in boring S-3 exceeded their respective Res TAP GWSLs. See Table 3, below, for a summary of ground water analytical results above applicable RCG screening levels. 6 The composite soil sample analytical results are provided for information purposes only and are not used for land use restriction or closure justifications. 6 Since chromium was not speciated between trivalent chromium and the more toxic hexavalent chromium, IDEM, in the most conservative approach,compared the analytical results to hexavalent chromium. Jeffersonville Gateway, Jeffersonville— BFPP Comfort Letter BFD#4020016, 4110802, &4160211 November 4, 2016 • Page 9 of 15 Phase II LSI—August 20158 In July 2015, 23 soil borings (B-1 through B-16 and B-22 through B-28) were advanced on the Site to depths ranging from 15 to 30 feet bgs. Temporary wells were installed in borings B-1 through B-10, B-12, B-13, B-15, and B-22 through B-26. A total of 44 soil, 14 ground water, and two duplicate samples were collected and analyzed for VOCs, PAHs, and RCRA metals. Analytical results detected the following: • In soil, detected arsenic concentrations exceeded its RDCSL at multiple locations and its IDCSL at 3 locations; detected chromium concentrations at all locations exceeded the RDCSL for hexavalent chromium and exceeded the IDCSL for hexavalent chromium at B-4 but were below its EX DCSL; the detected lead concentration at B-22 exceeded its RDCSL; detected lead concentrations at B-3 and B-4 exceed its RDCSL, IDSCL, and EX DCSL; detected benzo(a)pyrene concentrations at multiple locations exceeded its RDCSL but below its IDCSL; and detected dibenz(a,h)anthracene concentrations in soil at multiple locations exceeded its RDCSL butbelow its IDCSL. See Table 2, attached, for a summary of soil analytical data above applicable RCG screening levels. • No analyzed constituents in ground water were detected above their respective RCG residential screening levels. Phase II FSI-January 2016 In November 2015, 14 soil borings (SP-1 through SP-14) were advanced through the soil stockpiles generated from off-Site municipal storm sewer construction activities to evaluate the soil for potential reuse on-Site. Fifteen soil borings (GP-1 through GP- 15) were advanced near soil borings B-3 and B-4, associated with the Phase II LSI, which exhibited lead concentrations above its RCG EX DCSL. Fourteen soil samples collected from the stockpiles were analyzed for VOCs, PAHs, and RCRA metals; 30 soil samples collected near B-3 and B-4 were analyzed for lead only. Soil analytical results detected the following: • Detected lead concentrations at multiple locations near boring B-3 and B-4 exceeded its RDCSL, IDCSL, and/or EX DCSL; detected arsenic concentrations at multiple locations taken from the stockpiled soil exceeded its RDCSL but were below its IDCSL; and detected chromium concentrations at all locations exceeded the RDCSL for hexavalent chromium but were below its EX DCSL. See Table 2, attached, for a summary of soil analytical data above applicable RCG screening levels. 8 The Phase II LSI included soil borings advanced on a parcel that is not part of the Site. Jeffersonville Gateway, Jeffersonville— BFPP Comfort Letter BFD#4020016, 4110802, & 4160211 November 4, 2016 Page 11 of 15 • Ground water analytical results detected levels of chromium, lead, benzo(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, dibenz(a,h)anthracene, and indeno(1,2,3-cd)pyrene exceeding their respective Res TAP GWSLs. Liability Clarification IDEM's "Brown fields Program Comfort and Site Status Letters" Non-rule Policy Document, W-0051 (April 18, 2003) (Comfort and Site Status Letter Policy), provides that IDEM may issue a letter to a stakeholder involved in redevelopment of a brownfield if the stakeholder satisfies certain eligibility criteria outlined below. IDEM concludes, based in part on information provided by the Prospective Purchaser, that: (1) no state or federal enforcement action at the Site is pending; (2) no federal grant requires an enforcement action at the Site; (3) no condition on the Site constitutes an imminent and substantial threat to human health or the environment; (4) neither the Prospective Purchaser nor an agent or employee of the Prospective Purchaser caused, contributed to, or knowingly exacerbated the release or threat of release of any hazardous substance or petroleum at the Site, and; (5) the Prospective Purchaser is eligible for an applicable exemption to liability, specifically the bona fide prospective purchaser (BFPP) exception to liability for hazardous substance contamination found in IC §13-25-4-8(b) and/or for petroleum contamination under IC §§ 13-23-13 and 13-24-1, provided the applicable statutory criteria are met. As discussed below, the Prospective Purchaser has demonstrated to IDEM's satisfaction that it is eligible for the State BFPP exemption from liability for hazardous substance and/or petroleum contamination provided it takes the "reasonable steps" required by statute, recommendations for which are also discussed below. Bona Fide Prospective Purchaser Under IC § 13-25-4-8(a), except as provided in IC § 13-25-4-8(b), (c), or (d), a person that is liable under§ 107(a) of CERCLA is liable to the state in the same manner and to the same extent. IC § 13-25-4-8(b) references certain exceptions to liability imposed by IC § 13-25-4-8(a), including the exception in Section 107(r) of CERCLA, 42 U.S.C. § 9607(r), which states that a BFPP whose potential liability for a release or threatened release is based solely on the purchaser's being considered to be an owner or operator of a facility shall not be liable as long as the BFPP does not impede the performance of a response action or natural resource restoration. 42 U.S.C. § 9607(r). Thus a prospective purchaser that qualifies as a bona fide prospective purchaser and Jeffersonville Gateway, Jeffersonville—BFPP Comfort Letter BFD #4020016, 4110802, & 4160211 November 4, 2016 Page 13 of 15 include exercising appropriate care with respect to petroleum products found at the facility by taking reasonable steps to-- (i) stop any continuing release; (ii) prevent any threatened future release; and, (Hi) prevent or limit human, environmental, or natural resource exposure to any previously released petroleum product. Furthermore, the Prospective Purchaser recognizes that in order to maintain the status of BFPP, it will have to continue to provide the cooperation, assistance and access required by 42 U.S.C. § 9601(40) (E). In addition, the Prospective Purchaser will have to maintain compliance with land use restrictions established for the Site, and not impede the implementation or the effectiveness of any institutional control as required by 42 U.S.C. § 9601(40) (F). To maintain BFPP status, the Prospective Purchaser must also supply required notices and respond to requests for information or administrative subpoenas in accordance with 42 U.S.C. § 9601(40)(C) and 42 U.S.C. § 9601(40) (G), respectively. Reasonable Steps As of the date of issuance of this Comfort Letter, IDEM believes the following are appropriate reasonable steps for the Prospective Purchaser to undertake with respect to the hazardous substances and/or petroleum contamination found at the Site in order to qualify as a BFPP, as well as to satisfy the eligibility requirements for issuance of this letter under the Comfort and Site Status Letter Policy: • Implement and maintain the land use restrictions required by this letter, • Upon becoming aware of such information, communicate to IDEM any newly- obtained information about existing hazardous substance and petroleum contamination or any information about new (or previously unidentified) contamination. Implementation of the above-mentioned reasonable steps in addition to ongoing satisfaction of the additional statutory conditions will, with respect to IDEM, satisfy the statutory conditions for State BFPP protection. Please be advised that any work performed at the subject property must be done in accordance with all applicable environmental laws in order to ensure no inadvertent exacerbation of existing contamination found on the Site which could give rise to liability. Institutional Control Since levels of metals and/or PAHs detected in soil and ground water on-Site were above applicable RCG residential screening levels, IDEM is requiring an ERC to be recorded on the deeds for the parcels that comprise the Site and abide by the restrictions of the duly recorded ERC on the deed for Parcel 6 of the Site to ensure no exposure to on-Site contamination. As a condition of the issuance and effectiveness of this letter under the Comfort and Site Status Letter Policy, the Prospective Purchaser must abide by the land use restrictions in the enclosed ERCs, which are summarized below: • Not use Parcels 1, 2, 4, 5, 6, and 7 of the Site for residential and agricultural Jeffersonville Gateway, Jeffersonville—BFPP Comfort Letter BFD#4020016, 4110802, &4160211 November 4, 2016 Page 15 of 15 Prospective Purchaser exacerbates the contamination at the Site, or if the Prospective Purchaser does not implement and maintain the reasonable steps and other statutory requirements outlined in this letter, then the Prospective Purchaser would not be considered a BFPP and may be potentially liable under IC §§ 13-25-4--8(a), 13-23-13 and/or 13-24-1. Furthermore, activities conducted at the Site subsequent to purchase that result in a new release can give rise to full liability. In order for IDEM to consider this letter effective, upon acquisition, the enclosed ERCs, which include a copy of the Comfort Letter, must be recorded on the new deeds for the respective parcels in the Clark County Recorder's Office. Please return certified copies of the filed documents to the address listed below: Indiana Brownfields Program 100 North Senate Avenue, Room 1275 Indianapolis, Indiana 46204 ATTN: Kyle Hendrix IDEM is pleased to assist Jeff Gateway LLC with this commercial redevelopment project. Should you have any questions or comments, please contact Kyle Hendrix at 317-234-4860. He can also be reached via email at: Ihendrix©ifa.in,gov. Sincerely, Peggy Dorsey Deputy Assistant Commissioner Office of Land Quality Enclosure Attachments cc: Jan Pels, U.S. EPA Region 5 (electronic copy) Meredith Gramelspacher, Indiana Brownfields Program (electronic copy) Kyle Hendrix, Indiana Brownfields Program (electronic copy) Carmen Anderson, Indiana Brownfields Program (electronic copy) Brian Kleeman, ATC (electronic copy) - / 1ST 10th STRI-'6T_— —_ .ihh''\\\\\\\\\ f 7r 1 , ro-n_oo nt_uxaoauro 10-10-00-101-000.0041,0101 LI TT i j . /, i I I to-n_ro-roe_uaaoo-om illtil1 I IA- : ______ FEST ee�h sTREEr �t� F f+ 14444-1-N+i t:11!1 r T iiiI40 1M r (-"_—----___--- I : ._14-10-00-10114-10-00-101-141.000-110ror_ r.00o-nrayy rte oo-ror u,000aro t+! `` 11 o-u ao ror�saoaoto � rf a / ,ri \ ___-_____ , rl I 1 RLTTh0 , , ro-u-Dant-ur,00a0n , 2 ,\ \ ; \\ r 2 r r �` r t __ 11: 10-19-00-101-457.000-010 � & N I F , t4i°m•-•gI t6-1 161-0,6002010--' ISO 0 30 ea Qo 120 150 sT .---- / . — -_,-��`��` I. mm _ ___ 1 _ �___— REST 7th STRPET -- SCALE 1" = 150' 0. — SITE PLAN 170JEFF05-(Jett Nurtiban Dm 0y: AK PARCEL OVERVIEW SEE TOWER LEFT MF Dore: Scala APPA O1" PHASE II LIMITED SUBSURFACE INVESTIGATION 8/15 As SNOWN GATEWAY PROJECT TC s N WEST 7th STREET AND INDIANA AVENUE x JEFFERSONVILLE, INDIANA 47130 TABLE 2 -continued Jeffersonville Gateway, Jeffersonville-BFD#4020016, 4110802, & 4160211 Soil Concentrations Exceeding Ap Ip icable IDEM RCG Screening Levels Sample Information Contaminant Detected & Result(parts per million(ppm)) Parcel Boring Depth Date Arsenic Hexavalent Lead Mercury Location (feet bgs) Chromium B-1 0-2 15.5 13.7 23.1 <0.25 2 -_ B-2 0-2 68.5 15.2 46 <.023 0-2 14 23.9 476 <0.27 B-3 2-4 25 25.7 1,240 <0.38 0-2 24.8 63.6 2,460 0.97 B-4 - - - - _ 6-8 16.6 57.4 1,200 0.35 B-5 0-2 10.5 125 168 0.84 1 8-6 0-2 4.4 14.5 16.9 <0.26 B-7 0-2 9.6 13.3 34.2 <0.22 _ 6-8 3.5 12.6 10 <0.26 B-8 0-2 3.5 19.9 11.1 <0.23 B-9 0-2 4.8 22.9 12.6 <0.24 8-10 0-2 4.5 - _ 15.4 15.7 <0.26 8-10 712015 3.2 16.2 9.3 <0.25 [ B-11 B-12 0-2 11.2 17.8 162 1.4 0-2 13.8 14.4 13.8 <0.26 --- 2 8-10 6.8 18.8 92.6 0.61 8-13 0-2 12 14.1 20.8 <0.26 __.. B-15 0-2 4 17.9 29.6 <0.24 B-16 0-2 13 23.2 343 2 -.___.L__ B-22 0-2 15.9 23 482 1.5 6 0-2 9.8 13.5 212 0.42 B-23 8-10 7.9 17.1 32.3 ' <0.24 B-24 0-2 4.1 14 83.4 <0.25 5 B-25 0-2 20.5 15.6 22.3 <0.25 B-26 0-2 16.6 14 22.2 <0.22 4 B-28 0-2 22.4 14 19.6 <0.25 B-2 6-8 6.9 20.1 143 <0.3 7 B-6 4-6 9/2015 21.8 35.6 1,510 0.66 B-7 4-6 9.6 39.2 450 0.65 Site Wide Average 27.26 22.97 302.59 1.18 RDCSL 9.5 4.2 400 3.1 IDCSL 30 63 800 3.1 EX DCSL 920_ 2,700 1,000 3.1 Notes: italics=above RCG Residential Direct Contact Screening Level bold=above RCG Commercial/Industrial Direct Contact Screening Level underline=above RCG Excavation Worker Direct Contact Screening Level bgs=below ground surface NA= not analyzed DUP=duplicate ^= laboratory detection limits were higher than the Residential, Industrial,and/or Excavation Worker Direct Contact Screening Levels and, therefore,this data is inconclusive as to presence/absence above applicable RCG screening levels. Environmental Restrictive Covenant THIS ENVIRONMENTAL RESTRICTIVE COVENANT is made this day of , 201_, by Jeff Gateway LLC ("Owner") WHEREAS: Owner is the fee owner of certain real estate in the County of Clark, Indiana, which is located at Illinois Avenue in Jeffersonville and more particularly described in the attached Exhibit "A" ("Real Estate"), which is hereby incorporated and made a part hereof. The Real Estate was acquired by deed on , and recorded on , as Deed Record_ , in the Office of the Recorder of Clark County, Indiana. The Real Estate, consists of approximately 3.82 acres and is identified by the State by parcel identification number 10- 19-00-101-475.000-010. The Real Estate to which this Covenant applies is depicted on a map attached hereto as Exhibit"B". WHEREAS: A Comfort Letter, a copy of which is attached hereto as Exhibit "C", was prepared and issued by the Indiana Department of Environmental Management ("the Department" or "IDEM") pursuant to the Indiana Brownfields Program's ("Program") recommendation at the request of the Owner to address the redevelopment potential of the Real Estate which is one of seven parcels comprising a brownfield site resulting from a release of hazardous substances and petroleum contamination relating to historical operations on the Real Estate, Program site number BFD #4110802. WHEREAS: The Comfort Letter, as approved by the Department, provides that certain contaminants of concern ("COCs") were detected in soil and ground water on the Real Estate but will not pose an unacceptable risk to human health at the detected concentrations provided that the land use restrictions contained herein are implemented and maintained to ensure the protection of public health, safety, or welfare, and the environment. The COCs are arsenic, hexavalent chromium1, lead, and mercury in soil and hexavalent chromium and lead in ground water. WHEREAS: Soil and ground water on the Real Estate were sampled for polynuclear aromatic hydrocarbons ("PAHs"), volatile organic compounds ("VOCs"), and Resource Conservation and Recovery Act("RCRA") metals. Investigations detected levels of COCs above applicable screening levels established by IDEM in the Remediation Closure Guide ("RCG") (March 22, 2012 and applicable revisions). Analytical results detected the following: concentrations of arsenic, hexavalent chromium, lead, and mercury in soil above their respective RCG residential direct contact screening levels("RDCSLs") and/or industrial direct contact screening levels ("IDCSLs"); concentrations of lead and mercury at multiple locations above their respective excavation worker direct contact screen levels ("EX DCSLs"); and concentrations of hexavalent chromium and lead in ground water 1 Since chromium was not speciated between trivalent chromium and the more toxic hexavalent chromium, IDEM, in the most conservative approach, compared the analytical results to hexavalent chromium. the Department with documentation showing the excavated and restored area, and any other area affected by excavation or construction activities, meets applicable residential criteria. Contaminated soils that are excavated must be managed and disposed in accordance with all applicable federal and state laws. Any removal, excavation or disturbance of soil from the Real Estate must be conducted in accordance with all applicable requirements of IOSHA/OSHA and any soil that is removed, excavated or disturbed on the Real Estate must be managed and disposed of in accordance with all applicable federal and state laws and regulations. (e) Shall not use or allow the use or extraction of ground water at the Real Estate for any purpose, including, but not limited to, human or animal consumption, gardening, industrial processes, or agriculture, without prior Department approval, except that ground water may be extracted in conjunction with environmental investigation and/or remediation activities. (f) Shall install a two-foot clean (constituents not exceeding RCG residential direct contact screening levels) soil and vegetative barrier in areas not covered by buildings, parking lots, or sidewalks and maintain its/their integrity. Buildings, parking lots, sidewalks, and soil capped/vegetative areas will serve as engineered barriers to prevent direct contact with the underlying soils and must not be excavated, removed, disturbed, demolished, or allowed to fall into disrepair without replacement by a barrier that will provide equal or better protection II. GENERAL PROVISIONS 2. Restrictions to Run with the Land. The restrictions and other requirements described in this Covenant shall run with the land and be binding upon, and inure to the benefit of the Owner of the Real Estate and the Owner's successors, assignees, heirs and lessees or their authorized agents, employees, contractors, representatives, agents, lessees, licensees, invitees, guests, or persons acting under their direction or control ("Related Parties") and shall continue as a servitude running in perpetuity with the Real Estate. No transfer, mortgage, lease, license, easement, or other conveyance of any interest in all or any part of the Real Estate by any person shall limit the restrictions set forth herein. This Covenant is imposed upon the entire Real Estate unless expressly stated as applicable only to a specific portion thereof. 3. Binding upon Future Owners. By taking title to an interest in or occupancy of the Real Estate, any subsequent owner or Related Party agrees to comply with all of the restrictions set forth in paragraph 1 above and with all other terms of this Covenant. 4. Access for Department. The Owner shall grant to the Department and its designated representatives the right to enter upon the Real Estate at reasonable 3 challenge the provisions or the appropriate court's jurisdiction. IV. TERM, MODIFICATION AND TERMINATION 9. Term. The restrictions shall apply until the Department determines that contaminants of concern on the Real Estate no longer present an unacceptable risk to the public health, safety, or welfare, or to the environment. 10. Modification and Termination. This Covenant shall not be amended, modified, or terminated without the Department's prior written approval. Within thirty (30) days of executing an amendment, modification, or termination of the Covenant, Owner shall record such amendment, modification, or termination with the Office of the Recorder of Clark County and within thirty(30) days after recording, provide a true copy of the recorded amendment, modification, or termination to the Department. V. MISCELLANEOUS • 11. Waiver. No failure on the part of the Department at any time to require performance by any person of any term of this Covenant shall be taken or held to be a waiver of such term or in any way affect the Department's right to enforce such term, and no waiver on the part of the Department of any term hereof shall be taken or held to be a waiver of any other term hereof or the breach thereof. 12. Conflict of and Compliance with Laws. If any provision of this Covenant is also the subject of any law or regulation established by any federal, state, or local government, the strictest standard or requirement shall apply. Compliance with this Covenant does not relieve the Owner from complying with any other applicable laws. 13. Change in Law, Policy or Regulation. In no event shall this Covenant be rendered unenforceable if Indiana's laws, regulations, guidelines, or remediation policies (including those concerning environmental restrictive covenants, or institutional or engineering controls) change as to form or content. All statutory references include any successor provisions. 14 Notices. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other pursuant to this Covenant shall be in writing and shall either be served personally or sent by first class mail, postage prepaid, addressed as follows: To Owner: Jeff Gateway LLC 47 Pennsylvania Street Indianapolis, Indiana 46204 ATTN: G. Michael Patarino 5 Owner hereby attests to the accuracy of the statements in this document and all attachments. IN WITNESS WHEREOF, Jeff Gateway, LLC, the said Owner of the Real Estate described above has caused this Environmental Restrictive Covenant to be executed on this day of , 20 . Jeff Gateway, LLC STATE OF ) ) SS: COUNTY OF ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared , the of the Owner, , who acknowledged the execution of the foregoing instrument for and on behalf of said entity. Witness my hand and Notarial Seal this day of_ , 20 , Notary Public Residing in County, My Commission Expires: This instrument prepared by: I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. (Printed Name of Declarant) • 7 EXHIBIT B Map of the Real Estate EXHIBIT C Copy of Comfort Letter TABLE 1 II Jeffersonville Gateway, Jeffersonville - BFD#4110802 PIN 10-19-00-101-475.000-010 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels Sample Information Contaminant Detected& Result(parts per million(ppm)) Boring Depth Hexavalent 1 Location (feet bgs) Date Arsenic Chromium Lead Mercury S-1 0-2 25 32 49 5_4 _ S-2 0-2 250 56 210 <21" S-3 0-2 330 77 190 <5.3" 3/2011 _- S-4 0-2 6.8 25 30 <2.1 S-5 �— _ 0-2 22 47 43 <3.2" S-6 0-2 38 74 81 <5,4" SB-1 1-2 9.6 NA NA NA 0-1 76 NA NA NA 1-2 180 NA NA NA SB-2 2-3 36 NA NA NA 3-4 36 NA NA NA 0-1 20 NA NA NA 1-2 21 NA NA NA SB-3 —__. _ ---- _ 2-3 11 NA NA NA L3-4 412014 9.8 NA NA NA - --- — — , 0-1 17 NA NA NA SB-4 1-2 21 NA NA NA 2-3 12 NA NA NA 0-1 38 NA NA NA SB-5 --- 1-2 31 NA NA NA 0-1 32 NA NA NA SB-6 1-2 _ 26 NA NA NA 0-1 12 NA NA NA SB-7 - 1-2 14 NA NA NA Site Wide Average 27.26 22.97 302.59 1.18 RDCSL 9.5 4.2 400 3.1 IDCSL 30 63 800 3..1 EX DCSL 920 2,700 1,000 3.1 Notes: italics=above RCG Residential Direct Contact Screening Level bold=above RCG Commercial/Industrial Direct Contact Screening Level underline=above RCG Excavation Worker Direct Contact Screening Level bgs=below ground surface NA=not analyzed DUP=duplicate ^= laboratory detection limits were higher than the Residential, Industrial, and/or Excavation Worker Direct Contact Screening Levels and,therefore, this data is inconclusive as to presence/absence above applicable RCG screening levels. TABLE 2 Jeffersonville Gateway, Jeffersonville-BFD#4110802 PIN 10-19-00-101-475.000-010 Ground Water Concentrations Exceeding Applicable IDEM RCG Screening Levels Sample Information Contaminant Detected & Result(parts per billion(ppb)) Boring Date Hexavalent Lead Location Chromium S 3 3/2011 130 98 Res TAP GWSL 0.35 15 Notes: italics=above RCG Residential Tap Ground Water Screening Level PIN=Parcel Identification Number rrrti 1tJ H _--�-- _ I i..__'f-1{-I-{�} liJ L -- r MST OM STREET T {�IhNII}}f}f B-4 SB-9 �_ _.__-r -- r 1_SB-B }GP-1 8-6 B— -- r T I anumr pa r -rwq r — PAW OW II GP-9 yyGP-8 auArar I T ""a B-S r S8-- y, 2 A. 3 SB-7 r VS-1 6--10 l7,11„) I GP- ```S-2 ,,B 9 .—8-, i GP-14 ` + / SLAG i GP--13 DEBRIS r ti SB-3 / 1 ii / illS-3 SB-4 1 111 Asil 1 S-4 SB-5 I { - -5 5 I 1 , SB-s 1' � I BLACK SOIL 1 __ -,-----1AND FILL l `_ `� -*S-6 1 \ 111 \ 1 i a.- , X r \ ri f r\ . r ICONSINUOIION &, I I r i \ I r r , r� o � � � r� _ -. ,- r Ir r I WEST 7th STREET SCALE 1' = 100' --- SITE PLAN Project k K 170JE.EEUSH w PARCEL: 10-�9-00-�01-475.000-010 w> LEFT M O Dote: Beak: Mo'a�^• PHASE Il LIMITED SUBSURFACE INVESTIGATION 8/15 AS SHOWN GATEWAY PROJECT ague:N WEST 7th STREET AND INDIANA AVENUE ATC i x JEFFERSONVILLE, INDIANA 47130 1 BFD 4110802 -Affected Area I Point Number 1 Easling 609469.372 Northing 4237408.651 Point Number 12 Easting 609539.88 -- — _—______._—_—r_ ___ __—_—` — Northing 4237402.954 -- _ — ` —`___ ---- ---_tmtsr — ` • to `� 12 oz iA (Point Number 3 1 Easting 609472.933 /Northing 4237364A95 Point Number 2 t_ Easting 609467.236 Northing 4237370.192` Point Number 5 Easting 609489.314 , Northing 4237343.485 Point Number 4 ) g I EastIng 609480.767 Northing 4237355.236 _i I i ,. t --ter-!� '. Point Number Easting 609496,436 Northing 4237328.884 �'--,� I Point Number 7 I Easting 609500.709 I Northing 4237316.065, i lPolnt Number 8 1 ar►i sT Easting 609497.148 l —— `Norihing 4237265.14?,-;, I ! 1 I / t I _—_._ti IPoint Number 9 f 1 Easting 609521.719 t Northing 4237262.649 l I Point Number 11 I ___ Easting 609528.485 1 Point Northing 4237247.693 I Easting 6 6090952255.636 t Northing 4237247.693 I Mapped By: Mike HAL IDEM.Office of Land Quality.Silence Services Branch. Engineering A BIS Services,November 3.2016 Affected Area Coordinate Into: Affected Area Affected Area coordinate parameters: Projection:UTM Zone 16N - -- Sheet Datum: NAD83 _ Units:meters PLSS Info: Illinois Grant it 1 Jeffersonville Township Clark County,IN A [Clark CountyProtect Area Disclaimer. This nap Is intended to servo Cu an aid In graphic representation only. x __ _ This information is not warranted for accuracy or other purposes. elven giyh ,j -- - hisio itt iMed i 1 Jo@orsatville e li 550Fw1 )1 177 Environmental Restrictive Covenant THIS ENVIRONMENTAL RESTRICTIVE COVENANT is made this day of 201 , by Jeff Gateway LLC ("Owner"). WHEREAS: Owner is the fee owner of certain real estate in the County of Clark, Indiana, which is located at West 7th Street in Jeffersonville and more particularly described in the attached Exhibit "A" ("Real Estate"), which is hereby incorporated and made a part hereof. The Real Estate was acquired by deed on and recorded on as Deed Record in the Office of the Recorder of Clark County, Indiana. The Real Estate consists of approximately 3.379 acres and is identified by the State by parcel identification numbers 10-19-00-101-461.000-010. The Real Estate to which this Covenant applies is depicted on a map attached hereto as Exhibit"B". WHEREAS: A Comfort Letter, a copy of which is attached hereto as Exhibit "C", was prepared and issued by the Indiana Department of Environmental Management ("the Department" or "IDEM") pursuant to the Indiana Brownfields Program's ("Program") recommendation at the request of the Owner to address the redevelopment potential of the Real Estate which is one of seven parcels comprising a brownfield site resulting from a release of hazardous substances and petroleum contamination relating to historical operations on the Real Estate, Program site number BED #4110802. WHEREAS: The Comfort Letter, as approved by the Department, provides that certain contaminants of concern ("COCs") were detected in soil on the Real Estate but will not pose an unacceptable risk to human health at the detected concentrations provided that the land use restrictions contained herein are implemented and maintained to ensure the protection of public health, safety, or welfare, and the environment. The COCs are arsenic and hexavalent chromium'. WHEREAS: Soil and ground water on the Real Estate were sampled for volatile organic compounds ("VOCs"), polynuclear aromatic hydrocarbons ("PAHs"), and Resource Conservation and Recovery Act("RCRA") metals. Investigations detected levels of COCs in soil above applicable screening levels established by IDEM in the Remediation Closure Guide ("RCG") (March 22, 2012 and applicable revisions). Concentrations of arsenic and hexavalent chromium were detected in soil at multiple locations above their respective residential direct contact screening levels ("RDCSLs") but were below their respective industrial direct contact screening levels ("IDCSLs"). The arsenic concentration detected at boring B-2 exceeded its IDCSL but was below its excavation worker direct contact screening level ("EX DCSL"). Soil analytical results above applicable RCG screening levels are summarized on Table 1, attached hereto as Exhibit "D". A site map, attached hereto as Exhibit "E", depicts sample locations on the Real Estate at which the COCs I Since chromium was not speciated between trivalent chromium and the more toxic hexavalent chromium, IDEM, in the most conservative approach, compared the analytical results to hexavalent chromium. 4 Access for Department. The Owner shall grant to the Department and its designated representatives the right to enter upon the Real Estate at reasonable times for the purpose of determining whether the land use restrictions set forth in paragraph 1 above are being properly maintained (and operated, if applicable) in a manner that ensures the protection of public health, safety, or welfare and the environment. This right of entry includes the right to take samples, monitor compliance with the remediation work plan (if applicable), and inspect records. 5. Written Notice of the Presence of Contamination. Owner agrees to include in any instrument conveying any interest in any portion of the Real Estate, including but not limited to deeds, leases and subleases (excluding mortgages, liens, similar financing interests, and other non-possessory encumbrances) the following notice provision (with blanks to be filled in): NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN ENVIRONMENTAL RESTRICTIVE COVENANT, DATED 20_, RECORDED IN THE OFFICE OF THE RECORDER OF CLARK COUNTY ON , 20,^, INSTRUMENT NUMBER (or other identifying reference) IN FAVOR OF AND ENFORCEABLE BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT. 6 Notice to Department of the Conveyance of Property. Owner agrees to provide notice to the Department of any conveyance (voluntary or involuntary) of any ownership interest in the Real Estate (excluding mortgages, liens, similar financing interests, and other non-possessory encumbrances). Owner must provide the Department with the notice within thirty (30) days of the conveyance and include (a) a certified copy of the instrument conveying any interest in any portion of the Real Estate, and (b) if the instrument has been recorded, its recording reference(s), and (c) the name and business address of the transferee. 7. Indiana Law. This Covenant shall be governed by, and shall be construed and enforced according to, the laws of the State of Indiana. III. ENFORCEMENT 8 Enforcement. Pursuant to IC 13-14-2-6 and other applicable law, the Department may proceed in court by appropriate action to enforce this Covenant. Damages alone are insufficient to compensate the Department if any owner of the Real Estate or its Related Parties breach this Covenant or otherwise default hereunder. As a result, if any owner of the Real Estate, or any owner's Related Parties, breach this Covenant or otherwise default hereunder, the Department shall have the right to request specific performance and/or immediate injunctive relief to enforce this Covenant in addition to any other remedies it may have at law or at equity. Owner agrees that the provisions of this Covenant are enforceable and agrees not to 3 To Department: Indiana Brownfields Program 100 N. Senate Avenue, Rm. 1275 Indianapolis, Indiana 46204 ATTN: Kyle Hendrix Any party may change its address or the individual to whose attention a notice is to be sent by giving written notice in compliance with this paragraph. 15. Severability. If any portion of this Covenant or other term set forth herein is determined by a court of competent jurisdiction to be invalid for any reason, the surviving portions or terms of this Covenant shall remain in full force and effect as if such portion found invalid had not been included herein. 16. Authority to Execute and Record. The undersigned person executing this Covenant represents that he or she is the current fee Owner of the Real Estate or is the authorized representative of the Owner, and further represents and certifies that he or she is duly authorized and fully empowered to execute and record, or have recorded, this Covenant. 5 EXHIBIT A Deed of the Real Estate BF'D 4020016 - Environmental Restrictive Covenant (10-19-00-101-461.000-010) �Q9 �lv, (( \ — srH sr [10-19.00-101-061.000-010 IOU r 1 ii i 1 1 I ,u I rn z t g ¢I1 I (10.19.00-101.461.000-010 I al N 1 I I I I 10-19-00-101-461.000-0101 I p 1�- I Ii I I I I 1 1 ( I 1 1 1 ! ' Lai I Q' I DI Of I I f I 1 I 1 I _.- _ I ( ___-- �rltsr Mapped By: Malt Canale,IDEM,Office of Land Quality,Science Services Branch, Engineering 8 GIS ServIces,October 18,2016 Parcel ID: 10-19-00-101-461.000-010 --a PLSS Info: t8inols Grant 8 1 MO Environmental Restrictive Covenant Jetfersonvt8e Township Clark County,IN -- -- - Street Disclaimer; This map!s Intended to serve as an aid in graphic representation only. This information is not warranted for accuracy or other purposes 1°E [Clark County , I Project Area 14?-71 1 (.,...,j ■ 0 0o sou ,w r Jeffersonville I „ r , r t 3 uo BO Meters I A 14, .._. --.. __ EXHIBIT D TABLE I Jeffersonville Gateway, Jeffersonville- $FD#4110802 PIN 10-19-00-101-461.000-010 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels EXHIBIT E Jeffersonville Gateway Project, Jeffersonville—BFD #4110802 Site Map Depicting Sampling Locations at Which COCs Were Detected Above Applicable IDEM RCG Screening Levels DISCLAIMER: Information on this map is being provided to depict environmental conditions on the Real Estate that are the subject of the land use restrictions contained in the Covenant to which this map is attached and incorporated. The land use restrictions contained in the Covenant were deemed appropriate by the Department based on information provided to the Department by the Owner or another party investigating and/or remediating the environmental conditions on the Real Estate. This map cannot be relied upon as a depiction of all current environmental conditions on the Real Estate, nor can it be relied upon in the future as depicting environmental conditions on the Real Estate. Environmental Restrictive Covenant THIS ENVIRONMENTAL RESTRICTIVE COVENANT is made this day of , 201__, by Jeff Gateway LLC ("Owner") WHEREAS: Owner is the fee owner of certain real estate in the County of Clark, Indiana, which is located at Indiana Avenue in Jeffersonville and more particularly described in the attached Exhibit "A" ("Real Estate"), which is hereby incorporated and made a part hereof. The Real Estate was acquired by deed on , and recorded on , as Deed Record , in the Office of the Recorder of Clark County, Indiana. The Real Estate consists of approximately 0.933 acres and is identified by the State by parcel identification number 10-19-00-101-934.000-010, The Real Estate to which this Covenant applies is depicted on a map attached hereto as Exhibit"B". WHEREAS: A Comfort Letter, a copy of which is attached hereto as Exhibit "C", was prepared and issued by the Indiana Department of Environmental Management ("the Department" or "IDEM") pursuant to the Indiana Brownfields Program's ("Program") recommendation at the request of the Owner to address the redevelopment potential of the Real Estate which is one of seven parcels comprising a brownfield site resulting from a release of hazardous substances and petroleum contamination relating to historical operations on the Real Estate, Program site number BFD #4110802. WHEREAS: The Comfort Letter, as approved by the Department, provides that certain contaminants of concern ("COCs") were detected in soil on the Real Estate but will not pose an unacceptable risk to human health at the detected concentrations provided that the land use restrictions contained herein are implemented and maintained to ensure the protection of public health, safety, or welfare, and the environment. The COCs are arsenic and hexavalent chromium'. WHEREAS: Soil and ground water on the Real Estate were sampled for volatile organic compounds ("VOCs"), polynuclear aromatic hydrocarbons ("PAHs"), and Resource Conservation and Recovery Act("RCRA") metals. Investigations detected levels of COCs above applicable screening levels established by IDEM in the Remediation Closure Guide ("RCG") (March 22, 2012 and applicable revisions). Concentrations of arsenic and hexavalent chromium were detected in soil at multiple locations above their respective residential direct contact screening levels ("RDCSLs") but were below their respective industrial direct contact screening levels ("IDCSLs"). Soil analytical results above applicable RCG screening levels are summarized on Table 1, attached hereto as Exhibit "D". A site map, attached hereto as Exhibit "E", depicts sample locations on the Real Estate at which the COCs were detected in soil above applicable RCG screening levels. ' Since chromium was not spectated between trivalent chromium and the more toxic hexavalent chromium, IDEM, in the most conservative approach, compared the analytical results to hexavalent chromium. 4. Access for Department. The Owner shah grant to the Department and its designated representatives the right to enter upon the Real Estate at reasonable times For the purpose of determining whether the land use restrictions set forth in paragraph 1 above are being properly maintained (and operated, if applicable) in a manner that ensures the protection of public health, safety, or welfare and the environment. This right of entry includes the right to take samples, monitor compliance with the remediation work plan (if applicable), and inspect records. 5. Written Notice of the Presence of Contamination. Owner agrees to include in any instrument conveying any interest in any portion of the Real Estate, including but not limited to deeds, leases and subleases (excluding mortgages, liens, similar financing interests, and other non-possessory encumbrances)the following notice provision (with blanks to be filled in): NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN ENVIRONMENTAL RESTRICTIVE COVENANT, DATED 20_, RECORDED IN THE OFFICE OF THE RECORDER OF CLARK COUNTY ON , 20 , INSTRUMENT NUMBER (or other identifying reference) IN FAVOR OF AND ENFORCEABLE BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT. 6. Notice to Department of the Conveyance of Property. Owner agrees to provide notice to the Department of any conveyance (voluntary or involuntary) of any ownership interest in the Real Estate (excluding mortgages, liens, similar financing interests, and other non-possessory encumbrances). Owner must provide the Department with the notice within thirty (30) days of the conveyance and include (a) a certified copy of the instrument conveying any interest in any portion of the Real Estate, and (b) if the instrument has been recorded, its recording reference(s), and (c) the name and business address of the transferee. 7 Indiana Law. This Covenant shall be governed by, and shall be construed and enforced according to, the laws of the State of Indiana III ENFORCEMENT 8 Enforcement. Pursuant to IC 13-14-2-6 and other applicable law, the Department may proceed in court by appropriate action to enforce this Covenant. Damages alone are insufficient to compensate the Department if any owner of the Real Estate or its Related Parties breach this Covenant or otherwise default hereunder. As a result, if any owner of the Real Estate,or any owner's Related Parties, breach this Covenant or otherwise default hereunder, the Department shall have the right to request specific performance and/or immediate injunctive relief to enforce this Covenant in addition to any other rernedies.it may have at law or at equity. Owner agrees that the provisions of this Covenant are enforceable and agrees not to 3 To Department: Indiana Brownfields Program 100 N. Senate Avenue, Rm. 1275 Indianapolis, Indiana 46204 ATTN: Kyle Hendrix Any party may change its address or the individual to whose attention a notice is to be sent by giving written notice in compliance with this paragraph. 15 Severability. If any portion of this Covenant or other term set forth herein is determined by a court of competent jurisdiction to be invalid for any reason, the surviving portions or terms of this Covenant shall remain in full force and effect as if such portion found invalid had not been included herein. 16. Authority to Execute and Record. The undersigned person executing this Covenant represents that he or she is the current fee Owner of the Real Estate or is the authorized representative of the Owner, and further represents and certifies that he or she is duly authorized and fully empowered to execute and record, or have recorded, this Covenant. 5 EXHIBIT A Deed of the Real Estate BFD 4020016 - Environmental Restrictive Covenant (10-19-00-101-934.000-010) 1 I \ \ , \ \ \ IOr,H S7 .fir; \ ( \ I \ \ \ \s„ I \s. I \tc 1 10-19-00-101-.934.000_0101. I \\ ,',.� \ Ill \ QI \ {I \ QI . IZII Z I I I 1 I I --, - - . - -- STH ST I - 1 - - - - I I >t I al + C. J C . dl I I I 1 i 1 I t j I I i I I Mapped By: Mall Canal°,IOEM,Office Of Land Oiadly Slone Services Wench, Engfr,0°nrq&GIS S o, en,Oceollsr 10.2018 Parcel 10: 10-19.00-101.934.00 0-010 PLSS Info: LIlnois Grant 11 1 _.- -- -- JelfersonviAo Township NM Environmental Restrictive Covenant Clark Coemly,IN Disclaimer: This map is Irtooded to sneva as an ad in graphs reprosroAntun oNy -- - Street map This Information Isnot warranted for armea:y or War purposes - -- IDEM yK{y Clark County l Project Area I I.t.. .1 Acle , E } I Y V'Y ..,r 41, (,-/-rit\:\ a w too v.,� Jeffersonville i 11 r l 1PI. r 1 r r rrt I 4/t 0 20 40 fAarers EXHIBIT D TABLE 1 Jeffersonville Gateway, Jeffersonville - BFD#4110802 PIN 10-19-00-101-934.000-010 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels EXHIBIT E Jeffersonville Gateway Project, Jeffersonville—BFD#4110802 Site Map Depicting Sampling Locations at Which COCs Were Detected Above Applicable IDEM RCG Screening Levels DISCLAIMER: Information on this map is being provided to depict environmental conditions on the Real Estate that are the subject of the land use restrictions contained in the Covenant to which this map is attached and incorporated. The land use restrictions contained in the Covenant were deemed appropriate by the Department based on information provided to the Department by the Owner or another party investigating and/or remediating the environmental conditions on the Real Estate. This map cannot be relied upon as a depiction of all current environmental conditions on the Real Estate, nor can it be relied upon in the future as depicting environmental conditions on the Real Estate. Environmental Restrictive Covenant THIS ENVIRONMENTAL RESTRICTIVE COVENANT is made this day of , 201 , by Jeff Gateway LLC ("Owner"). WHEREAS: Owner is the fee owner of certain real estate in the County of Clark, Indiana, which is located at 927 Indiana Avenue in Jeffersonville and more particularly described in the attached Exhibit "A" ("Real Estate"), which is hereby incorporated and made a part hereof. The Real Estate was acquired by deed on , and recorded on ,as Deed Record , in the Office of the Recorder of Clark County, Indiana. The Real Estate consists of approximately 0.529 acres and is identified by the State by parcel identification number 10-19-00-101-935,000-010. The Real Estate to which this Covenant applies is depicted on a map attached hereto as Exhibit"B". WHEREAS: A Comfort Letter, a copy of which is attached hereto as Exhibit "C", was prepared and issued by the Indiana Department of Environmental Management ("the Department" or "IDEM") pursuant to the Indiana Brownfields Program's ("Program") recommendation at the request of the Owner to address the redevelopment potential of the Real Estate which is one of seven parcels comprising a Brownfield site resulting from a release of hazardous substances and petroleum contamination relating to historical operations on the Real Estate, Program site number BED #4110802. WHEREAS: The Comfort Letter, as approved by the Department, provides that certain contaminants of concern ("COCs") were detected in soil and ground water on the Real Estate but will not pose an unacceptable risk to human health at the detected concentrations provided that the land use restrictions contained herein are implemented and maintained to ensure the protection of public health, safety, or welfare, and the environment. The COCs are arsenic and hexavalent chromium' in soil and benzo(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, dibenz(a,h)anthracene, and indeno(1,2,3-cd)pyrene in ground water. WHEREAS: Soil and ground water on the Real Estate were sampled for volatile organic compounds ("VOCs"), polynuclear aromatic hydrocarbons ("PAHs"), and Resource Conservation and Recovery Act("RCRA")metals. Investigations detected levels of COCs above applicable screening levels established by IDEM in the Remediation Closure Guide ('RCG") (March 22, 2012 and applicable revisions). Concentrations of arsenic and hexavalent chromium were detected in soil at three locations above their respective residential direct contact screening levels("RDCSLs") but below their respective industrial direct contact screening levels ("IDCSLs"). Concentrations of benzo(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, dibenz(a,h)anthracene, and indeno(1,2,3- 1 Since chromium was not speciated between trivalent chromium and the more toxic hexavalent chromium, IDEM, in the most conservative approach, compared the analytical results to hexavalent chromium. under their direction or control("Related Parties")and shall continue as a servitude running in perpetuity with the Real Estate. No transfer, mortgage, lease, license, easement, or other conveyance of any interest in all or any part of the Real Estate by any person shall limit the restrictions set forth herein. This Covenant is imposed upon the entire Real Estate unless expressly stated as applicable only to a specific portion thereof. 3. Binding upon Future Owners. By taking title to an interest in or occupancy of the Real Estate, any subsequent owner or Related Party agrees to comply with all of the restrictions set forth in paragraph 1 above and with all other terms of this Covenant. 4. Access for Department. The Owner shall grant to the Department and its designated representatives the right to enter upon the Real Estate at reasonable times for the purpose of determining whether the land use restrictions set forth in paragraph 1 above are being properly maintained (and operated, if applicable) in a manner that ensures the protection of public health, safety, or welfare and the environment. This right of entry includes the right to take samples, monitor compliance with the remediation work plan (if applicable), and inspect records. 5. Written Notice of the Presence of Contamination. Owner agrees to include in any instrument conveying any interest in any portion of the Real Estate, including but not limited to deeds, leases and subleases (excluding mortgages, liens, similar financing interests, and other non-possessory encumbrances) the following notice provision (with blanks to be filled in): NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN ENVIRONMENTAL RESTRICTIVE COVENANT, DATED 20_, RECORDED IN THE OFFICE OF THE RECORDER OF CLARK COUNTY ON , 20_, INSTRUMENT NUMBER (or other identifying reference) IN FAVOR OF AND ENFORCEABLE BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT. 6. Notice to Department of the Conveyance of Property. Owner agrees to provide notice to the Department of any conveyance (voluntary or involuntary) of any ownership interest in the Real Estate (excluding mortgages, liens, similar financing interests, and other non-possessory encumbrances). Owner must provide the Department with the notice within thirty (30) days of the conveyance and include (a) a certified copy of the instrument conveying any interest in any portion of the Real Estate, and (b) if the instrument has been recorded, its recording reference(s), and (c) the name and business address of the transferee. 7. Indiana Law. This Covenant shall be governed by, and shall be construed and enforced according to, the laws of the State of Indiana. 3 include any successor provisions. 14. Notices. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other pursuant to this Covenant shall be in writing and shall either be served personally or sent by first class mail, postage prepaid, addressed as follows: To Owner: Jeff Gateway LLC 47 Pennsylvania Street Indianapolis, Indiana 46204 ATTN: G. Michael Patarino To Department: Indiana Brownfields Program 100 N. Senate Avenue, Rm. 1275 Indianapolis, Indiana 46204 ATTN: Kyle Hendrix Any party may change its address or the individual to whose attention a notice is to be sent by giving written notice in compliance with this paragraph. 15. Severability. If any portion of this Covenant or other term set forth herein is determined by a court of competent jurisdiction to be invalid for any reason, the surviving portions or terms of this Covenant shall remain in full force and effect as if such portion found invalid had not been included herein. 16. Authority to Execute and Record. The undersigned person executing this Covenant represents that he or she is the current fee Owner of the Real Estate or is the authorized representative of the Owner, and further represents and certifies that he or she is duly authorized and fully empowered to execute and record, or have recorded, this Covenant. 5 EXHIBIT A Deed of the Real Estate BFD 4020016 - Environmental Restrictive Covenant (10-19-00-101-935.000-010) \ \ \ \ \ \\ \ \\ \ 1 \ Sj \, \ i 1 \ \ \ \ 110-19-00.101-935.000-0101.,` 1 \\\ \ \QQ q \ \ \ I I \ \ 9rH ST I . 1 _ W 1 '¢ f 0 1 Mapped By: Matt Canals,IDEM,Office of Land Quality,Science Services Branch, Engineering&GIS Services,October 18,2016 Parcel ID: 10-19-00-101-935.000-010 I PLSS Info: Illinois Grant#1 Ali Environmental Restrictive Covenant Jeffersonville Township Clark County,IN — Street Disclaimer: This map Is Inlcrided to serve as an aid in graphic representation only — — — This informat;bn Is not warranted Icr accuracy or other purposes . IDM „ Clark County 1 [Protect Areal alp, — w.Pts a ' • -1,;' I (—"-?.* it 171 A 1:› o eo 10 Feed Jee�tfersonvilte r 1 r 1 e i 1 0 20 t0 A1Nere I 110 EXHIBIT D TABLE 1 Jeffersonville Gateway, Jeffersonville-BFD#4110802 PIN 10-19-00-101-935.000-010 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels TABLE 2 Jeffersonville Gateway, Jeffersonville -BFD#4110802 PIN 10-19-00-101-935.000-010 Ground Water Concentrations Exceeding Applicable IDEM RCG Screening Levels EXHIBIT E Jeffersonville Gateway Project, Jeffersonville--BFD #4110802 Site Map Depicting Sampling Locations at Which COCs Were Detected Above Applicable IDEM RCG Screening Levels DISCLAIMER: Information on this map is being provided to depict environmental conditions on the Real Estate that are the subject of the land use restrictions contained in the Covenant to which this map is attached and incorporated. The land use restrictions contained in the Covenant were deemed appropriate by the Department based on information provided to the Department by the Owner or another party investigating and/or remediating the environmental conditions on the Real Estate. This map cannot be relied upon as a depiction of all current environmental conditions on the Real Estate, nor can it be retied upon in the future as depicting environmental conditions on the Real Estate. Environmental Restrictive Covenant THIS ENVIRONMENTAL RESTRICTIVE COVENANT is made this day of , 201 , by Jeff Gateway LLC ("Owner"). WHEREAS: Owner is the fee owner of certain real estate in the County of Clark, Indiana, which is located at Illinois Avenue in Jeffersonville and more particularly described in the attached Exhibit "A" ("Real Estate"), which is hereby incorporated and made a part hereof. The Real Estate was acquired by deed on and recorded on as Deed Record in the Office of the Recorder of Clark County, Indiana. The Real Estate, consists of approximately 2.081 acres and is identified by the State by parcel identification number 10-19-00-101-900.000-010. The Real Estate to which this Covenant applies is depicted on a map attached hereto as Exhibit"B". WHEREAS: A Comfort Letter, a copy of which is attached hereto as Exhibit "C", was prepared and issued by the Indiana Department of Environmental Management ("the Department" or "IDEM") pursuant to the Indiana Brownfields Program's ("Program") recommendation at the request of the Owner to address the redevelopment potential of the Real Estate which is one of seven parcels comprising a brownfield site resulting from a release of hazardous substances and petroleum contamination relating to historical operations on the Real Estate, Program site number BFD #4160211. WHEREAS: The Comfort Letter, as approved by the Department, provides that certain contaminants of concern ("COCs") were detected in soil on the Real Estate but will not pose an unacceptable risk to human health at the detected concentrations provided that the land use restrictions contained herein are implemented and maintained to ensure the protection of public health, safety, or welfare, and the environment. The COCs are arsenic, hexavalent chromium', and lead. WHEREAS: Soil and ground water on the Real Estate were sampled for polynuclear aromatic hydrocarbons ("PAHs"), volatile organic compounds ("VOCs"), and Resource Conservation and Recovery Act("RCRA") metals. Investigations detected levels of COCs above applicable screening levels established by IDEM in the Remediation Closure Guide ("RCG") (March 22, 2012 and applicable revisions). Analytical results detected the following: concentrations of arsenic and hexavalent chromium in soil at three locations above their respective RCG residential direct contact screening levels ("RDCSLs") but below their respective industrial direct contact screening levels ("IDCSLs"); concentrations of lead at two locations above its RDCSL but below its IDCSL; and the lead concentration at boring B-6 exceeded its IDCSL and excavation worker direct contact screen levels ("EX DCSLs"). Concentrations and sample locations for COCs above 1 Since chromium was not speciated between trivalent chromium and the more toxic hexavalent chromium, IDEM, in the most conservative approach,compared the analytical results to hexavalent chromium. laws.Any removal, excavation or disturbance of soil from the Real Estate must be conducted in accordance with all applicable requirements of IOSHA/OSHA and any soil that is removed, excavated or disturbed on the Real Estate must be managed and disposed of in accordance with all applicable federal and state laws and regulations. (e) Shall install a two-foot clean (constituents not exceeding RCG residential direct contact screening levels) soil and vegetative barrier in areas not covered by buildings, parking lots, or sidewalks and maintain its/their integrity. Buildings, parking lots, sidewalks, and soil capped/vegetative areas will serve as engineered barriers to prevent direct contact with the underlying soils and must not be excavated, removed, disturbed, demolished, or allowed to fall into disrepair without replacement by a barrier that will provide equal or better protection. II. GENERAL PROVISIONS 2 Restrictions to Run with the Land. The restrictions and other requirements described in this Covenant shall run with the land and be binding upon, and inure to the benefit of the Owner of the Real Estate and the Owner's successors, assignees, heirs and lessees or their authorized agents, employees, contractors, representatives, agents, lessees, licensees, invitees, guests, or persons acting under their direction or control ("Related Parties")and shall continue as a servitude running in perpetuity with the Real Estate. No transfer, mortgage, lease, license, easement, or other conveyance of any interest in all or any part of the Real Estate by any person shall limit the restrictions set forth herein. This Covenant is imposed upon the entire Real Estate unless expressly stated as applicable only to a specific portion thereof. 3. Binding upon Future Owners. By taking title to an interest in or occupancy of the Real Estate, any subsequent owner or Related Party agrees to comply with all of the restrictions set forth in paragraph 1 above and with all other terms of this Covenant. 4. Access for Department. The Owner shall grant to the Department and its designated representatives the right to enter upon the Real Estate at reasonable times for the purpose of determining whether the land use restrictions set forth in paragraph 1 above are being properly maintained (and operated, if applicable) in a manner that ensures the protection of public health, safety, or welfare and the environment. This right of entry includes the right to take samples, monitor compliance with the remediation work plan (if applicable), and inspect records. 5 Written Notice of the Presence of Contamination. Owner agrees to include in any instrument conveying any interest in any portion of the Real Estate, including but not limited to deeds, leases and subleases (excluding mortgages, liens, similar financing interests, and other non-possessory encumbrances) the following notice 3 copy of the recorded amendment, modification, or termination to the Department. V. MISCELLANEOUS 11 Waiver. No failure on the part of the Department at any time to require performance by any person of any term of this Covenant shall be taken or held to be a waiver of such term or in any way affect the Department's right to enforce such term, and no waiver on the part of the Department of any term hereof shall be taken or held to be a waiver of any other term hereof or the breach thereof. 12 Conflict of and Compliance with Laws, If any provision of this Covenant is also the subject of any law or regulation established by any federal, state, or local government, the strictest standard or requirement shall apply. Compliance with this Covenant does not relieve the Owner from complying with any other applicable laws. 13. Change in Law, Policy or Regulation. In no event shall this Covenant be rendered unenforceable if Indiana's laws, regulations, guidelines, or remediation policies (including those concerning environmental restrictive covenants, or institutional or engineering controls) change as to form or content. All statutory references include any successor provisions. 14. Notices. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other pursuant to this Covenant shall be in writing and shall either be served personally or sent by first class mail, postage prepaid, addressed as follows: To Owner: Jeff Gateway LLC 47 Pennsylvania Street Indianapolis, Indiana 46204 ATTN: G. Michael Patarino To Department: Indiana Brownfields Program 100 N. Senate Avenue, Rm. 1275 Indianapolis, Indiana 46204 ATTN: Kyle Hendrix Any party may change its address or the individual to whose attention a notice is to be sent by giving written notice in compliance with this paragraph. 15 Severability., If any portion of this Covenant or other terns set forth herein is determined by a court of competent jurisdiction to be invalid for any reason, the surviving portions or terms of this Covenant shall remain in full force and effect as 5 Owner hereby attests to the accuracy of the statements in this document and all attachments. IN WITNESS WHEREOF, Jeff Gateway, LLC, the said Owner of the Real Estate described above has caused this Environmental Restrictive Covenant to be executed on this day of , 20 . Jeff Gateway, LLC STATE OF ) ) SS: COUNTY OF ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared — , the of the Owner, _, who acknowledged the execution of the foregoing instrument for and on behalf of said entity. Witness my hand and Notarial Seal this day of_ , 20` , Notary Public Residing_in County, My Commission Expires; This instrument prepared by: I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. (Printed Name of Declarant) 7 EXHIBIT B Map of the Real Estate EXHIBIT C Copy of Comfort Letter TABLE 1 Jeffersonville Gateway, Jeffersonville-BFD#4160211 PIN 10-19-00-101-900.000-010 Soil Concentrations Exceeding Ap_pIicable IDEM RCG Screenin Levels Sample Information Contaminant Detected & Result(parts per million(ppm)) Boring Depth Date Arsenic Hexavalent Lead Location (feet bgs) Chromium B-2 6-8 6.9 20.1 143 B-6 4-6 9/2015 21.8 35.6 1.510 B-7 4-6 9.6 39.2 450 Site Wide Average 27.26 22.97 302.59 RDCSL 9.5 4.2 400 IDCSL 30 63 B00 EX DCSL 920 2,700 1,000 Notesr italics=above RCG Residential Direct Contact Screening Level bold=above RCG Commercial/Industrial Direct Contact Screening Level underline=above RCG Excavation Worker Direct Contact Screening Level bgs= below ground surface PIN=Parcel Identification Number _- _____�__ usr 10th $fir - ,�-/J - ________ 1 fl --_..---—__. I ' f ' L 1 �8-6 ill II ' f 1 C\--- l'OXIM NIUSTIYI. MIN \ munaxr►eawr e-77 ! I 8 I I , I ki \f j / 1 1 if ,I 1L II � FI�I iM ---1 ----_______________ ASST gth sTREEr ►_L I f A ' ao o so +o eo ISCALE: i" 60' SITE PLAN �1.�?hardier: Dm. 17OJEFFO5H AK o PARCEL: 10-19-00-101-900.000-010 S Drawing OMc WER LEFT MF g PHASE II LIMITED SUBSURFACE INVESTIGATION Data: AS�SHOWN APP.('fir GATEWAY PROJECT WEST 7th STREET AND INDIANA AVENUE ATC 5 N JEFFERSONVILLE, INDIANA 47130 /'t EXHIBIT"C" RESOLUTION DESIGNATION WAYPONT RESIDENTIAL SERVICES, LLC AND APPROVAL AND RATIFICATION OF DEVELOPMENT AGREEMENT RESOLUTION NO.2017-R- 1 BEFORE THE JEFFERSONVILLE REDEVELOPMENT COMMISSION STATE OF INDIANA A RESOLUTION DESIGNATING HOGAN PROPERTY DEVELOPMENT CO.AS DEVELOPER FOR GATEWAY COMMERCIAL DEVELOPMENT PROJECT AND APPROVAL AND RATIFICATION OF DEVELOPMENT AGREEMENT WHEREAS, the City of Jeffersonville Redevelopment Commission(the"Commission"), was created for the purpose of undertaking economic development and redevelopment projects in the City of Jeffersonville("City")pursuant to I.C. 36-7-14 and I.C. 36-7-25; and WHEREAS, the Commission desires to develop certain property it owns that it is commonly called the"Gateway Commercial Development"project ("Project") located at 10th and Spring Streets in the City; and WHEREAS, the Commission has complied with all statutory requirements for the offering of said property; and WHEREAS, the Commission has undertaken and completed a selection process for a developer of the Project; and WHEREAS, after consideration of all relevant factors concludes that Hogan Property Development Co. should be chosen as the developer of the Project; and WHEREAS, the parties have negotiated the attached Development Agreement("Exhibit "A"); and NOW, THEREFORE, BE IT RESOLVED by the City of Jeffersonville Redevelopment Commission that Hogan Property Development Co. is hereby designated as the developer for the Gateway Commercial Development Project; and IT IS FURTHER RESOLVED by the City of Jeffersonville Redevelopment Commission that the attached Development Agreement with Hogan Property Development Co. is hereby approved and ratified. ADOPTED and APPROVED on this aC day of \u.At__ 2017. 7/4/--%71-- President 4111 Jeffersonville •edevelopment Commission ATTEST: Ohi,�Ziia i IP ecretary Jeffersonville Redevelopment Commission EXHIBIT A DEVELOPMENT AGREEMENT