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HomeMy WebLinkAboutGATEWAY DEVELOPMENT AGREEMENT PART 2IDEM ANNIVERSARY Indiana Department of Environmental Management We Protect Hoosiers and Our Environment. 100 N. Senate Avenue • Indianapolis, IN 462.04 (800) 451-6027 • (317) 232-8603 • www.idem.[N.gov Michael R. Pence Governor G. Michael Patarino Jeff Gateway LLC 47 Pennsylvania Street Indianapolis, Indiana 46204 Dear Mr. Patarino: Carol S. Comer Commissioner November 4, 2016 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 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 A State that Works ® Recycled Paper Jeffersonville Gateway, Jeffersonville – BFPP Comfort Letter BFD #4020016, 4110802, & 4160211 November 4, 2016 Page 2 of 15 petroleum found at the Site and help to establish whether environmental conditions might be a barrier to redevelopment or transfer. Site Description and History The 11.486 -acre Site consists of seven parcels which are bisected by 9th Street in an east -west directions. Refer to the attached Site Map. In general, from prior to 1940 through approximately 2015, historical uses of the Site have been as railroad tracks, undeveloped land, residential, commercial, and/or industrial. See Table 1, below, for historical uses of each parcel comprising the Site that could be of potential environmental significance. TABLE 1 Parcel and Historical Use Information Parcel Parcel # Identification Address; Number 1 2 3 Significant Historical Uses (Approximate Operating Years) 10-19-00-101- Illinois Railroad corridor (1832 – 2000s) 475.000-010 Avenue Junk yard (1952 – 1961) 3.82 Gas station (1953 – 1969) 10-19-00-101- West 7th — Elevated railroad corridor (1898 – 1983) 3.379 461.000-010 Street Vacant land (1898 – present) 10 -19 -00 -101- 9th Street Street right-of-way (prior to 1940 – 1998) 0.324 4110802 950.000-010 Acreage Brownfield i Site # 4 10-19-00-101- Indiana Elevated railroad corridor (1898 – 1983) I 0.933 934.000-010 Avenue Vacant land (1898 – present) I 10-19-00-101- 927 Indiana Gas station (1949 – 1955) 5 935.000-010 Avenue Trucking company (1958 – 1983) 0.529 Automobile sales (1988 – 2008) 6 10-19-00-101- 955 Spring Gas station (1940s - 1986) 0.42 4020016 936.000-010 Street Vehicle service center (1991 – 2012) I 9th City dump (1940 – 1949) 7 10-19-00-101- 600 W 9 Industrial wastewater treatment facility 2.081 4160211 900.000-010 Street (1953 –1998) 'Addresses listed are from the property record cards maintained by the Clark County Assessor's office. Historical addresses associated with the Site include 711, 813, 815, 817, 819, 821, 823, 825, 827 and 829 Indiana Avenue; 520 W. 7th Street. Currently, the Site is vacant with no structures; an asphalt parking lot is located on the southern portion of the Site and a gravel lot is located on the northern portion of the Site. A construction company uses the asphalt parking lot to store construction materials used for nearby roadway development. Several soil stockpiles were observed on the Site, which appear to have been generated during the excavation of an on -Site drainage ditch and from off -Site municipal storm sewer construction activities. The Site 1 Portions of Broadway Street, Indiana Avenue, and various alley right of ways have been or will be vacated and be incorporated into the Site. Jeffersonville Gateway, Jeffersonville -- BFPP Comfort Letter BED #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 I 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 4 of 15 • Potential for exposure to vapors emanating from the documented soil and ground water contamination on the Site. Off -Site: • Documented metals and petroleum contamination in soil and ground water on the potentially upgradient west adjacent property historically used as the city dump in 1949 and a municipal wastewater treatment facility from 1952 to 1998, which included the use of a 1,000 gallon gasoline underground storage tank (UST) (IDEM FID #17677), subsequently removed in June 1991.3 • Historical use of the north adjacent property as a gasoline station (Marathon #1390, FID #5650) and/or automotive service station from 1968 to 1993. • Historical use of the east adjacent property at the northeast corner of West Ninth Street and Indiana Avenue (C.B. Auto Sales and Service Station) on which three gasoline USTs were noted on historical records. The R&W/CSX Phase I ESA — November 2015 and R&W/CSX Phase I ESA Update -- August 2016 identified the following controlled recognized environmental condition (CREC): • Recorded environmental restrictive covenant (ERC) on the deed for the property on which the Former R&W Tire Facility (IDEM FID #25134, BFD #4020016) operated, which includes a copy of the No Further Action (NFA) Determination letter issued by the Indiana Brownfields Program on January 24, 2012; the ERC restricts residential use of the property and prohibits the extraction of ground water from the property. This NFA Determination is discussed further below. Pursuant to ASTM El 527-13, Standard Practice for Environmental Site Assessment, ATC reviewed results from prior investigations conducted on the Site and identified the presence of vapor -phase chemicals of concern (COCs) in soil and ground water on the Site above applicable IDEM vapor exposure screening levels as a potential vapor encroachment condition (VEC) associated with the Site. Industrial Water Recycling Company (IWRC) As part of this request, the Prospective Purchaser provided the Program with a Phase 1 Environmental Site Assessment dated November 20, 2015 (IWRC Phase I ESA — November 2015) by Cardno ATC and a Phase 1 Environmental Site Assessment Update dated August 11, 2016 by ATC (IWRC Phase 1 ESA Update -- August 2016) prepared for Jeff Gateway LLC. The Phase I was conducted utilizing the ASTM Practice E1527-13, Standard Practice for Environmental Site Assessment, which satisfies the federal AAI rule set forth in 40 CFR Part 312. In an effort for the Prospective Purchaser 3 At the time of the Phase I ESA, the Industrial Water Recycling Company (IWRC) was located off -Site; the property on which it was located has since been incorporated into 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 4 As of June 2010 (for ground water) and March 2012 (for soil), IDEM no longer evaluates TPH contamination in soil and ground water when determining RISC or RCG closure. Therefore, the levels of TPH 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 6 of 15 environmental restrictive covenant (ERC) placed on the deed for the Former R&W Tire facility will prevent exposure to the contamination detected on the property. The ERC included the following land use restrictions: • Not use the property for residential purposes, and • Not use the ground water beneath the property. The ERC, which includes a copy of the NFA letter, was duly recorded on the deed for the property in the Clark County recorder's office on February 24, 2012 as deed record 1201204041. The recorded ERC may be viewed electronically by searching online by document #67255643 in IDEM's Virtual File Cabinet (VFC) on IDEM's website. Environmental Conditions As part of the request for assistance in determining any existing environmental contamination and potential liability at the Site, Program staff also reviewed the following reports: R&W/CSX Parcels • Limited Phase Il — CSX Property (CSX Phase 11), dated April 21, 2011, 'prepared by Construction Solutions, LLC • Phase it Limited Subsurface Investigation (Phase II), dated May 30, 2014, prepared by Wilcox Environmental Engineering, Inc. (Wilcox) • Phase Il Limited Subsurface Investigation (Phase 11 LSI), dated August 24, 2015, prepared by Cardno ATC • Phase 11 Further Site Investigation (Phase II FSI), dated January 4, 2016, prepared by ATC IWRC Parcel • Phase 11 Limited Subsurface Investigation (IWRC Phase 11 LSI), dated October 2, 2015, prepared by ATC These reports may be viewed electronically by searching online by the applicable Brownfield ID #s referenced on the first page of this letter in IDEM's VFC on IDEM's website. For purposes of this letter, sample analytical results were compared to IDEM's Remediation Closure Guide (RCG) (March 22, 2012 and applicable revisions) screening levels as follows: soil samples collected at depths between 0 and 10 feet below ground surface (bgs) were compared to RCG residential and commercial/industrial direct Jeffersonville Gateway, Jeffersonville -- BFPP Comfort Letter BED #4020016, 4110802, 8,4160211 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 11— 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-1 B 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 chromium@ 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 chromium@ 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. 5 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 8 of 15 Phase 11- May 20147 In April 2014, nine soil borings (SB -1 through SB -9) were advanced on Parcel 1, four soil borings (SB -15 through SB -18) were advanced on Parcel 5, temporary monitoring wells were installed at boring locations SB -16 and SB -17 on Parcel 5, and three soil gas sampling ports (SG -1 through SG -3) were installed to a total depth of 6 feet bgs on Parcel 6. A total of 38 soil and 4 ground water samples were collected and analyzed for benzene, toluene, ethylbenzene, xylenes/methyl-tertiary-butyl-ether (BTEX/MTBE), arsenic, PAHs, and/or volatile organic compounds (VOCs). Three soil gas samples were collected and analyzed for VOCs. Analytical results detected the following: r • In soil, detected arsenic concentrations at borings SB -1 through SB -9 exceeded its RDCSL and/or IDCSL. See Table 2, attached, for a summary of soil analytical results above applicable RCG screening levels. • In ground water, detected PAH concentrations at borings SB -16 and SB -17 exceeded their respective Res TAP GWSLs. See Table 3, below, for a summary of ground water analytical results above applicable RCG screening levels. • Acrylonitrile and 1,2-dichloroethane were detected in soil gas at SG -2 but at levels below their respective Calculated Res SGe SLs. TABLE 3 Ground Water Concentrations Exceeding Apecable IDEM RCG Screening Levels Sample Information Contaminant Detected & Result (parts per billion (ppb)) c E a) = Parcel Boring Date > E Location x o iO a) a) us g co cp .0 d 'a o0 o c o#. N N RI N W N C C C+diJ .0 mro°'e coo RI = _0) a a) N cis0 0 RI 1 S-3 3/2011 130 98 <54 <54 <54 <54 <54 5 SB -16 4/2015 NA NA 0.803 10.884 0.736 0.198 0.543 SB -17 NA NA 1.22 I 1.7 1.34 0.401 1.18 Res TAP GWSL 0.35 I 15 0.12 I 0.2 0.34 , 0.034 0.34 Notes: italics = above RCG Residential Tap Ground Water Screening Level NA = not analyzed ^ = laboratory detection limits were higher than the Screening Level and, therefore, this data is inconclusive as an actual detected level 7 This Phase 11 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 9 of 15 Phase 11 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 but. below 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 ail 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 11 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 10 of 15 IWRC Phase 11 LSI — October 2015 In September 2015, nine borings (B-1, B -1A, B-1 B, and B-2 through B-7) were advanced on -Site to a depth of between 6.5 and 28 feet bgs. Borings B-1, B -1A, B-1 B, B-3, and B-4 encountered shallow refusal at depths ranging from 6.5 to 9.5 feet bgs and no soil samples were collected. Soil borings B-2, B-5, B-6, and B-7 were converted into temporary monitoring wells. Four soil and ground water samples were collected from borings B-2, B-5, B-6, and B-7 and analyzed for VOCs, PAHs, and RCRA metals. Analytical results detected the following: • In soil, the detected lead concentration at boring B-7 exceeded its RDCSL but was below its IDCSL and at boring B-6 exceeded its RCG RDCSL, IDCSL, and EX DCSL; the detected arsenic concentration at boring B-6 exceeded its RDCSL but was below its IDCSL; the detected benzo(a)pyrene concentration at B-7 exceeded its RDCSL but was below its IDCSL; and detected chromium concentrations in all four soil samples exceeded the RDCSL for hexavalent chromium but were below its IDCSL. Refer to Table 2, attached, for a summary of soil analytical data above applicable RCG screening levels. • All analyzed constituents in ground water were at levels below their respective residential screening levels. Summary of Site Environmental Conditions Environmental conditions as of November 2015 indicate the following: • Soil analytical results detected levels of arsenic, chromium, lead, mercury, benzo(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, dibenz(a,h)anthracene, and indeno(1,2,3-dc)pyrene exceeding their respective RDCSLs and/or 1DCSLs and lead and mercury at several locations above their respective EX DCSLs. • IDEM staff calculated the average concentrations for the constituents detected above RDCSLs in on -Site soil from all soil samples analyzed and determined that the average on -Site concentrations for lead, mercury, benzo(a)anthracene, benzo(b)fluoranthene, and indeno(1,2,3-dc)pyrene were below their respective RDCSLs, and the average concentrations for arsenic, hexavalent chromium, and benzo(a)pyrene while above their respective RDCSLs, were below their respective IDCSLs. • Although the calculated Site -wide average concentrations for lead and mercury are below their respective RDCSLs, soil analytical results detected levels of lead at six boring locations and levels of mercury at potentially five locations above their respective EX DCSLs, which poses a direct contact risk to excavation workers at these locations. Exposure to the contamination in soil at these locations can, however, be eliminated through an institutional control, as discussed further below. 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 "Brownfields 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) (2) (3) no state or federal enforcement action at the Site is pending; no federal grant requires an enforcement action at the Site; 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; 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. (5) 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 12 of 15 does not impede the performance of a response action or natural resource restoration would not be liable under IC § 13-25-4-8(a). Similarly, such a bona fide prospective purchaser would not be liable under IC §§ 13-23-13 and 13-24-1 for petroleum contamination existing on the Site. Under Indiana law, if the Prospective Purchaser qualifies as a bona fide prospective purchaser and does not impede the performance of a response action or natural resource restoration, IDEM is prohibited from pursuing the Prospective Purchaser even if cleanup requirements change or. if IDEM determines that a response action related to existing known hazardous substances or petroleum contamination from prior releases at the Site is necessary. Furthermore, IDEM is prohibited from pursuing such a Prospective Purchaser for response costs relating to the past release of hazardous substances or petroleum contamination at the Site. Therefore, IDEM will not require the Prospective Purchaser to respond to the past release of hazardous substances or petroleum contamination found at the Site beyond the scope of the statutorily -required reasonable steps outlined below, even if cleanup requirements change or if IDEM determines that a response action is necessary in the future. This decision, however, does not apply to past or present hazardous substance or petroleum contamination that is not described in this letter, future releases, or applicable federal requirements under CERCLA or the Resource Conservation and Recovery Act, 42 U.S.C. § 6901. To meet the statutory criteria for liability protection as a BFPP under Indiana law, a landowner must meet certain threshold criteria and satisfy certain continuing - obligations. IDEM notes that the Prospective Purchaser will acquire the Site after January 11, 2002 (and after June 30, 2009), and the disposal of hazardous substances and petroleum at the Site will have occurred prior to that date. See 42 U.S.C. § 9601(40)(A); § IC 13-11-2-148(h); IC § 13-11-2-151(g); IC § 13-11-2-150(f). Based on information reviewed by IDEM, IDEM concludes that the Prospective Purchaser has conducted all appropriate inquiries into the previous ownership and uses of the Site. See 42 U.S.C. § 9601(40)(B)(i). Furthermore, the Prospective Purchaser has represented that it is not potentially liable or affiliated with any person that is potentially liable for contamination at the Site, and IDEM has no information to the contrary. See 42 U.S.C. § 9601(40)(H). Therefore, the Prospective Purchaser meets the threshold requirements of CERCLA §§ 9601(40) (A), (B) and (H) to qualify for the status of BFPP under 42 U.S.C. § 9601(40). The continuing obligations the Prospective Purchaser must undertake to qualify as a BFPP under Indiana law and maintain such status are outlined in 42 U.S.C. §§ 9601(40)(C) -(G) and include exercising "appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to -- (i) stop any continuing release; (ii) prevent any threatened future release; and, (iii) prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substance." 42 U.S.C. § 9601(40)(D). By extension, under IC §§ 13-11-2-148(h), 13-11- 2-150(f), and 13-11-2-151(g), the continuing obligations the Prospective Purchaser must undertake to maintain BFPP status are outlined in 42 U.S.C. §§ 9601(40) (C) -(G) 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, (iii) 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 14 of 15 purposes. • Not use the ground water beneath Parcels 1 and 5. • Not excavate soil in the Affected Area on Parcel 1 and on the entirety of Parcel 7 without first submitting a soil management plan to IDEM for approval. Conclusion IDEM encourages the commercial redevelopment of the Site. Should additional information gathered in conjunction with future Site investigations and/or remediation demonstrate that a particular restriction is no longer necessary to protect human health and the environment or that Site conditions are appropriate for unrestricted use, IDEM will, upon request, consider modification or termination of the ERCs recorded on the deeds for the parcels comprising the Site pursuant to its terms and conditions. Conversely, it is also possible that new land use restrictions may be necessary in the future due to new information or changed circumstances at the Site. Pursuant to the Comfort and Site Status Letter Policy, the determinations in this letter are based on the nature and extent of contamination known to IDEM as of the date of this letter, as a result of review of information submitted to or otherwise reviewed by IDEM. If additional information regarding the nature and extent of contamination at the Site later becomes available, additional measures may be necessary to satisfy the reasonable steps requirements of BFPP status. In particular, if new areas of contamination or new contaminants are identified, the Prospective Purchaser must communicate this information to IDEM upon becoming aware of it and should ensure that reasonable steps are undertaken with respect to such contamination in order to qualify as and maintain BFPP status. This letter shall not be construed as limiting the Prospective Purchaser's ability to rely upon any other defenses and/or exemptions available to it under any common or environmental law, nor shall it limit any ongoing obligations of the Prospective Purchaser that are required to maintain the status of BFPP. Furthermore, the terms and conditions of this letter shall be limited in application to this letter recipient and this Site, and shall not be binding on IDEM at any other Site. If at any time IDEM discovers that the above-mentioned reports, any representations made to IDEM, or any other information submitted to or reviewed by IDEM was inaccurate, which inaccuracy can be attributed to the Prospective Purchaser, then IDEM reserves the right to revoke this letter and pursue any responsible parties. Furthermore, if any activities undertaken by the Prospective Purchaser result in a new release or if Site conditions are later determined by IDEM to constitute an imminent and substantial threat to human health or the environment, IDEM reserves the right to revoke this decision and pursue any responsible parties. Additionally, this decision does not apply to past or present contamination that is not described in this Comfort Letter, future releases, or applicable requirements under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 or CERCLA. In addition, if any acts or omission by the Jeffersonville Gateway, Jeffersonville — BFPP Comfort Letter BFD #4020016, 4110802, & 4160211 November 4, 2016 Page 15of15 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 1C §§ 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) JEFFERSONVILLE GATEWAY PROJECT COMFORT LETTER ATTACHMENTS Site Map and TABLE 2 Jeffersonville Gateway, Jeffersonville - BFD #4020016, 4110802, & 4160211 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels WEST 10th STREET fa- IP_ 00-M1.455.000.010 • A I +I WEST 9th STREET _1441-. +1.1-11 I I i I I F{-4+1-1-1- 1\ 150 SCALE 1'. = 150' SITE PLAN o PARCEL OVERVIEW PHASE II LIMITED SUBSURFACE INVESTIGATION GATEWAY PROJECT WEST RONVI STREET E,TAND lNDlANA AVENUE JEFFS 0 30 60 90 140 150 10 -10 -00 -101 -176.000.016 o -IP -00 -101 -Asomata f0-16-00-1111-+7Aa001110 10 -11140 -10I -411,000.-0t9 to-to-so-lay-camas-otv I, i 1 -1\1\\ 1 I _0 1 i a I§ 1 I0 -10-0a-101-16,.004010 I \12f f0-19-00-101-457.000-010 10-10 }01 • • 475.000.010 WEST 7th STREET -\ r Project Number. ,70JEFFO5H Drortng Fite: SEE LOWER LEFT Dale: Scat$: 8/15 AS SHOWN Dm. ay: AK crla- ar: MF Ap d B1 Figure: ATC 6 TABLE 2 Jeffersonville Gateway, Jeffersonville - BFD #4020016, 4110802, & 4160211 Soil Concentrations Exceeding Applicable 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 S-1 0-2 25 32 49 5.4 S-2 0-2 250 56 210 <21^ I — S-3 0-2 330 77 190 <5.3" 3/2011 — — S-4 0-2 6.8 25 30 <2.1 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 I 1-2 21 NA NA NA SB -3 2-3 11 NA NA NA 1 3-4 9.8 NA NA NA 0-1 17 NA NA NA SB -4 1-2 21 NA NA NA 2-3 4/2014 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 0-1 17 NA NA NA SB -8 1-2 19 NA NA NA 2-3 16 NA NA NA 0-1 100 NA NA NA SB -9 - — 1-2 13 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 2,70.0 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 - continued Jeffersonville Gateway, Jeffersonville - BFD #4020016, 4110802, & 4160211 Soil Concentrations Exceeding A;plicable IDEM RCG Screen Levels Sample Information Contaminant Detected & Result (parts per million (ppm)) Parcel Boring Depth Date Arsenic Hexavalent Lead Mercury ' Location (feet bgs) Chromium 13-1 0-2 15.5 13.7 23.1 <0.25 6-2 0-2 68.5 15.2 46 <.023 0-2 14 J 23.9 476 2-4 25 I 25.7 1 240 0-2 24.8 63.6 2,460 6-8 16.6 57.4 1,200 B-5 0-2 10.5 J 12.5 168 2 1 B-3 B-4 B-6 1 0-2 4.4 B-7 0-2 9.6 6-8 3.5 B-8 0-2 3.5 B-9 0-2 4.8 0-2 4.5 B-10 - 8-10 7/2015 _ 3.2 B-11 0-2 11.2 0-2 13.8 B-12 14.5 16.9 13.3 34.2 12.6 J _ 10 19.9 11.1 22.9 12.6 15.4 15.7 <0.26 <0.27 <0.38 0.97 0.35 0.84 <0.26 <0.22 <0.26 <0.23 <0.24 16.2 9.3 <0.25 17.8 162 1.4 14.4 13.8 2 8-10 6.8 18.8 92.6 B-13 0-2 12 14.1 20.8 B-15 0-2 4 17.9 29.6 B-16 0-2 13 23.2 343 B-22 0-2 15.9 23 482 6 0-2 9.8 J 13.5212 8-10 7.9 17.1 32.3 B-24 0-2 4.1 14 83.4 5 B-25 1 0-2 20.5 15.6 22.3 B-26 0-2 16.6 14 I 22.2 4 13-28 0-2 22.4 14 I 19.6 B-2 6-8 6.9 _ 201 143 7 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 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. B-23 <0.26 0.61 <0.26 <0.24 2 1.5 0.42 <0.24 <0.25 <0.25 <0.22 <0.25 I <0.3 0.66 0.65 TABLE 2 - continued Jeffersonville Gateway, Jeffersonville - BFD #4020016, 4110802, & 4160211 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels Parcel 1 2 Sample Information Boring I Depth Location I (feet bgs) GP -1 0-2 GP -9 6-8 GP -11 4-6 GP -12 2-4 GP -13 0-2 2-4 GP -14 2-4 SP -1 4-5 SP -2 0-2 SP -3 SP -4 SP -5 DUP SP -6 SP -7 SP -8 4 SP -9 SP -10 SP -11 SP -12 rSP-13 SP -14 Contaminant Detected & Result (parts per million (ppm)) Date Arsenic Hexavalent Lead Mercury Chromium NA NA 443 NA NA 669 2-4 4-5 11/2015 4-5 4-5 0-2 4-5 0-2 2-4 4-5 0-2 0-2 2-4 0-2 Site Wide Average RDCSL IDCSL EX DCSL NA NA 842 NA NA 2,200 NA NA 623 NA NA 674 NA NA 1,750 6.6 15.1 27.3 3.2 14.3 1 11.6 12 14.4 21.6 7.6 13.8 34.2 4.9 16.1 15 NA NA NA NA NA NA NA <0.25 <0.22 <0.24 <0.24 <0.24 6.9 17 17.4 <0.24 13.5 16.5 22.3 <0.26 23.2 15.1 31.6 <0.25 12.2 14.3 20.9 <0.24 10 10.9 20.6 <0.21 17.4 14.6 34.6 <0.22 9.1 15.1 19.3 <0.25 12.5 12.5 28.5 <0.23 22.2 16.1 30.5 12.1 15.7 29.4 27.26 1 22.97 302.59 9.5 1 4.2 400 30 63 800 1,000 920 2,700 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. <0.25 <0.25 1.18 3.1 3.1 3.1 j 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 Rernediation 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 ch romium. above their respective residential tap water ground water screening levels ("Res TAP GWSLs"). Concentrations and sample locations for COCs detected at levels above applicable RCG screening levels are summarized on Tables 1 and 2, 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 and/or ground water above applicable RCG screening levels. WHEREAS: The Department has not approved closure of environmental conditions on the Real Estate under the Remediation Closure Guide. However, the Department has determined that the land use restrictions contained in this Covenant will enable the Real Estate to be used safely for commercial use. WHEREAS: Environmental reports and other documents related to the Real Estate are hereby incorporated by reference and may be examined at the Public File Room of the Department, which is located in the Indiana Government Center North at 100 N. Senate Avenue, 12th Floor East, Indianapolis, Indiana. The documents may also be viewed electronically by searching the Department's Virtual File Cabinet on the Web at: http://www. in.gov/idem/4101. htm NOW THEREFORE, Jeff Gateway LLC subjects the Real Estate to the following restrictions and provisions, which shall be binding on Jeff Gateway LLC and all future owners: I. RESTRICTIONS 1. Restrictions. The Owner and all future owners: (a) Shall not use or allow the use of the Real Estate for residential purposes, including, but not limited to, daily child care facilities or educational facilities for children (e.g., daycare centers or K-12 schools). (b) Shall not use the Real Estate for any agricultural use. (c) Shall neither engage in nor allow drilling or excavation of soil from the areas on the Real Estate identified by GPS coordinates as the "Affected Area" depicted on the attached Exhibit "F" without first submitting a work plan for approval by the Department at least sixty (60) days prior to beginning work for approval by the Department within thirty (30) days. Any removal, excavation or disturbance of soil from the Affected Area on the Real Estate must be conducted in accordance with all applicable requirements of IOSHA/OSHA and any soil that is removed, excavated or disturbed within the Affected Area must be managed and disposed of in accordance with all applicable federal and state laws and regulations. (d) Shall restore soil disturbed as a result of excavation and construction activities on the Real Estate using only soil that meets RCG residential direct contact screening criteria. Upon the Department's request, the Owner shall provide 2 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. 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 (f) 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 lirnit 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 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 4 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 anytime 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 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. 6 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 STATE OF ) SS: COUNTY OF Jeff Gateway, LLC 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 A Deed for the Real Estate EXHIBIT B Map of the Real Estate BFD 4110802 - Environmental Restrictive Covenant (10-19-00-101-475.000-010) 10-19-00-101-475.000-010 Mapped By: Parcel ID: PLSS Info: Disclaimer: ur e0 1 10-19-00-101-475.000-010 [.10-19-00-101-475.000-010 r-~ 1 9TH ST ------- • 10-19-00-101-475.000-010 1 1 10-19-00-101-475.000-010 10 19 00-101-475.000-010J 1 110-19-00-101-475.000-010 Mall Canale, IDEM, Office of Land Quality, Science Services Branch, Engineering 8 GIS Services, October 18, 2016 10-10-00-101-475.000-010 Illinois Grant # 1 Jeffersonvihe Township Clark Counly, IN This map is intended In serve as an aid in graphic representation only. This information Is not warranted for accuracy or olhor purposes, 0 res 10-19-00-101-475.000-010] j 110-19-00-101-475.000-010J 10-19-00-101-475.000-0101 L- 8TH ST 10-19-00-101-475.000-010 10-19-00-101-475.000-010 Environmental Restrictive Covenant Street rr N alto •'iii 75O Feer r 25 50 Hetero Clark County I Project Area 1 o. Jeffersonville EXHIBIT C Copy of Comfort Letter EXHIBIT D TABLE 1 Jeffersonville Gateway, Jeffersonville -BFD #4110802 PIN 10-19-00-101-475.000-010 Soil Concentrations Exceeding Applicable IDEM 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 TABLE 1 Jeffersonville Gateway, Jeffersonville - BFD #4110802 PIN 10-19-00-101-475.000-010 Soil Concentrations Exceedi Applicable IDEM RCG Screening Levels Sample Information Contaminant Detected & Result (parts per million (ppm)) Boring Depth Date Arsenic Hexavalent Location (feet bgs) Chromium S-1 S-2 S-3 S-4 S-5 S-6 SB -1 SB -2 SB -3 0-2 0-2 0-2 0-2 0-2 0-2 1-2 0-1 1-2 2-3 3-4 0-1 1-2 2-3 3-4 3/2011 Lead Mercury I 25 32 49 5.4 250 1 56 210 <21^ 330 77 i 190 <5.3" 6.8 25 30 <2.1 22 47 43 <3,2^ 38 74 81 <5.4^ 9.6 NA NA NA 76 NA NA NA 180 NA NA NA 36 NA NA NA 36 NA NA NA 20 NA NA NA 21 NA NA NA 11 NA NA NA 412014 — 9.8 _1 NA I NA NA 0-1 17 1 NA NA NA SB -4 1-2 21 NA NA NA 2-3 12 NA NA NA 1 0-1 38 NA NA NA 1-2 31 NA NA NA 0-1 32 NA NA NA 1-2 26 NA NA NA 0-1 12 NA NA NA 1-2 14 1 NA NA NA 1 Wide Average 27.26 22.97 302.59 1.18 RDCSL_ 9.5 _ 4.2 400 3.1 DCSL 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. SB -5 SB -6 SB -7 Site TABLE 1 - continued 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 Date Arsenic Hexavalent Lead Mercury Location (feet bgs) Chromium 0-1 17 NA NA NA SB -8 1-2 19 NA NA NA 2-3 4/2014 16 NA NA NA 0-1 100 NA NA NA 1-2 13 NA NA NA 0-2 14 23.9 476 <0.27 2-4 25 25.7 1,240 <0.38 0-224.8 63.6 2460 0.97 B-4 - - 6-8 16..6 574 1,200 0.35 3-5 0-2 10.5 12.5 168 0.84 B-6 0-2 4.4 14.5 16.9 <0.26 7/2015 0-2 9.6 13.3 34.2 <0.22 1 6-8 3.5 12.6 10 <0.26 B-8 0-2 3.5 19.9 11.1 <0.23 SB -9 B-3 B-7 3-9 B-10 GP -1 GP -9 GP -11 GP -12 GP -13 GP -14 Notes: 0-2 4.8 22.9 12.6 <0.24 1 0-2 4.5 15.4 15.7 <0.26 8-10 3.2 16.2 9.3 <0.25 0-2 NA NA 443 NA 6-8 NA NA 689 NA 4-6 NA NA 842 NA 2-4 11/2015 NA NA 2, 200 NA 0-2 NA NA 623 NA 2-4 NA NA 674 NA 2-4 NA NA 1,750 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 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 EXHIBIT E Jeffersonville Gateway, 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. 111114 AL1 _ -J -!" !!! �-H-J ��L!Lr,ff�JjfT"1 f�-f'1!1 +H I7 1"1 Lf11111 MAR ■ WEST 9th STREET B-459~9� GP -1 SB -8 roost au Meow GP}4 ll TGP-8 5I3-2+ 8-.4., 4 8-7 W4 -5772— s i 1 I I1 too SCALE SITE PLAN PARCEL=10-19-00-101-475.000 010 INVESTIGATION PHASE ti LIMITED SUBSURFACE GATEWAY PROJECT N WEST SfONV �LE�TlNDfANA AND D471�3OAVENUE JEFFER L MONIS NOVO O ■ ■ GP -14 ♦- y SLAG GP- 134- DEBRIS 58-3-+ \ *5-3 1SB-4 1 -T" S-4 #• 58-5 � 1 -*S-5 l 1 SB -6 BLACK SOIL 1 AND FIKL ----1t,S-6 \ 1.i agrow AnrA manumit MLR saTMNOuse o ss 5D 5 loo WEST 7th STREET = 100' -i'H I'f�,,,-i, T i i 4-1+11+1144-1-1-14 1 \'-----------_ MINER &MK Y i 05D-eoel) 1 g.." 10 I B-7 I project Plumber. 1JOJEFF05H Oro wing F+le: SEE LOWER LEFF Dote:Scab: 8/i5I AS SHOWN om. By AK MF APP*4 BY: Figure: ATC 1 EXHIBIT F AFFECTED AREA MAP Jeffersonville Gateway, Jeffersonville — BFD # 4110802 Affected Area Map with GPS Coordinates Depicting "Affected Area" And TABLE 3 Jeffersonville Gateway, Jeffersonville — BFD # 4110802 PIN 10-19-00-101-475.000-010 Affected Area GPS Coordinates Point Number 1 Easting 609469.372 Northing 4237408.651 1 1 ` 1 BFD 4110802 - Affected Area Point Number 12 Easting 609539.88 Northing 4237402.954 ¢I � of z1 1 Point Number 3 1 Easting 609472.933 1 Northing 4237364.495 — — Point Number 2 l Easting 609467.236I Northing 4237370.1921 _ 1 r i Point Number 4 Easting 609480,767 Northing 4237355.236 'Point Nurnber6 Easting 609496 A36 Northing 4237328.884 1 i 1 LPoint Number 8 Easting 609497.148 Northing 4237265.142 1 1 1 Point Number 9 Easting 609521.719 Northing 4237262.649 {Point Number 10 Easting 609525.636 Northing 4237247.693 Point Number 5 Easting 609489.314 1 Northing 4237343.485 `� Point Number 7 Easting 609500.709 Northing 4237316.065 Mapped By: Miko H111, IDEM, Ofilcn of Land Quality, Science Services Branch. Engineering & GIS Services, November 3, 2016 Affected Area Coordinate Info: Affnclsd Area coordinate parameters: Projection: UTM Zone 16N Datum: NADS3 Units: meters PLSS Info: INinois Grant # 1 Jeffersonville Township Clark County, IN Disclaimer This map is intended to servo as an ald In graphic representation only. This information is not warranted for accYrmny or other purposes. Point Number 11 Easting 609528.485 Northing 4237247.693 © Affected Area — — — Street 0 75 • • , . ❑ 25 N 150 Foot 50 Meters Clark County I Project Area t OL .Joorf!orsonville cl‘1 TABLE 3 Jeffersonville Gateway, Jeffersonville — BFD # 4110802 PIN 10-19-00-101-475.000-010 Affected Area GPS Coordinates Point Number UTM Easting UTM Northing 1 609469.372 4237408.651 2 609467.236 4237370.192 _ 3 609472.933 4237364.495 4 609480.767 4237355.236 5 609489.314 4237343.485 6 609496.436 4237328.884 7 _ 609500.709 4237316.065 8 609497.148 4237265.142 9 609521.719 4237262.649 10 609525.636 4237247.693 11 609528.485 4237247.693 _ 12 609539.88 4237402.954 Note: Coordinates parameters: Projection - UTM Zone 16N, Datum - NAD83, Units - meters 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 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 chromium1. 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 Rernediatiori 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 1 Since chromium was not speciated between trivalent chromium and the more toxic hexavalent chromium, !DEM, in the most conservative approach, compared the analytical results to hexavalent chromium. were detected in soil above applicable RCG screening levels. WHEREAS: The Department has not approved closure of environmental conditions on the Real Estate under the Remediation Closure Guide. However, the Department has determined that the land use restrictions contained in this Covenant will enable the Real Estate to be used safely for commercial use. WHEREAS: Environmental reports and other documents related to the Real Estate are hereby incorporated by reference and may be examined at the Public File Room of the Department, which is located in the Indiana Government Center North at 100 N. Senate Avenue, 12th Floor East, Indianapolis, Indiana. The documents may also be viewed electronically by searching the Department's Virtual File Cabinet on the Web at: http://www.in.goviidem/4101.htm. NOW THEREFORE, Jeff Gateway LLC subjects the Real Estate to the following restrictions and provisions, which shall be binding on Jeff Gateway LLC and all future owners: I. RESTRICTIONS 1. Restrictions. The Owner and all future owners: (a) Shall not use or allow the use of the Real Estate for residential purposes, including, but not limited to, daily child care facilities or educational facilities for children (e.g., daycare centers or K-12 schools). (b) Shall not use the Real Estate for any agricultural use. 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. 2 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, Piens, 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 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 4 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 Owner hereby attests to the accuracy of the statements in this document and ail 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 STATE OF ) SS: COUNTY OF Jeff Gateway LLC 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 1 have taken reasonable care to redact each Social Security number in this document, unless required by law. (Printed Name of Declarant) 6 EXHIBIT A Deed of the Real Estate EXHIBIT B Map of the Real Estate BFD 4020016 - Environmental Restrictive Covenant (10-19-00-101-461.000-010) O 3I Mapped By: Parcel ID: PLSS Info: Disclaimer: w — _ _ T 9D -IST [ 10-19-00-101-461.000-010 1 7 • • I 10-19-00-101-461.0011-010 J f } N10-19-00-101-461.000-010 i a -- ITN ST --- ----- __ Matt Canale, IDEM, Office of Land Quality, Science Services Branch, Engineering & GIS Services, October 1B, 2016 10-19-00-101-461.000-010 Minois Grant # 1 Jeffersonville Township Clark County, IN This rnap Is intended to serve as an aid In graphic representation only. Misinformation is not warranted for accuracy or other purposes. IF' IDEM r. zt 100 t 0 20 Environmental Restrictive Covenant Street N' N 200 Feet 00 Meters QI of of f Clark County 1 Project Area 0 Jeffersonville EXHIBIT C Copy of Comfort Letter EXHIBIT D TABLE 1 Jeffersonville Gateway, Jeffersonville - BFD #4110802 PIN 10-19-00-101-461.000-010 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels TABLE 1 Jeffersonville Gateway, Jeffersonville - BFD #4110802 PIN 10-19-00-101-461.000-010 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels Sample Information Boring Depth Location (feet bgs) Contaminant Detected & Result (parts per million (ppm)) Date Arsenic Hexavalent Chromium B-1 0-2 15.5 13.7 B-2 { 0-2 68.5 15.2 B-11 0-2 11.2 17.8 0-2 13.8 14.4 8-10 6.8 1 18.8 B-13 1 0-2 12 { 14.1 B-15 0-2 4 { 17.9 B-16 0-2 13 _ 23.2 SP -1 4-5 6.6 15.1 SP -2 0-2 3.2 { 14.3 SP -3 2-4 12 14.4 SP -4 I 4-5 7.6 J 13.8 Site Wide Average 27.26 22.97 RDCSL 9.5 I4.2 IDCSL 30 f 63 EX DCSL 920 I 2,700 Notes: italics = above RCG Residential Direct Contact Screening Level bold = above RCG Commercial/Industrial Direct Contact Screening Level bgs = below ground surface PIN = Parcel Identification Number 8-12 7/2015 11/2015 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. yid II ' —J H+N-N+H-H-I- 14.1H-HgaTi-45117 I WEST 9th STREET a t w R RAMER GO COMM 744SP-1, v95mock5 test) 5P- 4 Io-ll-DD-101-re1.000-ow • P-3 • SP -2 8-21 0,411114Y MIA 8-11+ 8-12 DEWOR B-13 MOOR PLOW STOW (101) f N MJ N � MO AUTORSZOIGIW %OWE MAI 4+1 +-H-1+111 I l i i I -H -I 11 I H H -1 -f1 -1-1+H4+ 1W ! D FORUM FRANk's t SITE PLAN PARCEL: 10-19-00-101-461000- O1A 0 TION PHASE 11 LIMITED SUBSURFACE INVE STIG GATEWAY PROJECT s WEST SOREETI AND DNI DIA47NAaAAVENUE JEFFERNVI N p 25 54 75 100 too ce SCALE: 1 = 100 Project Number. 17OJEFFO5H pmwfn4 F110 SEE LOWER LEFT We; saw w 8/15 AS SHOWN A1C Dm. By: AK Cxa. Sy: MF App'd fay: Figur: 2 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 chromium1. 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 Rerrrediafion 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 ("1DCSLs"). 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 speciated between trivalent chromium and the more toxic hexavalent chromium, IDEM, in the most conservative approach, compared the analytical results to hexavalent chromium. WHEREAS: The Department has not approved closure of environmental conditions on the Real Estate under the Remediation Closure Guide. However, the Department has determined that the land use restrictions contained in this Covenant will enable the Real Estate to be used safely for commercial use. WHEREAS: Environmental reports and other documents related to the Real Estate are hereby incorporated by reference and may be examined at the Public File Room of the Department, which is located in the Indiana Government Center North at 100 N. Senate Avenue, 12th Floor East, Indianapolis, Indiana. The documents may also be viewed electronically by searching the Department's Virtual File Cabinet on the Web at: http://www.in.gov/idem/4101.htm NOW THEREFORE, Jeff Gateway LLC subjects the Real Estate to the following restrictions and provisions, which shall be binding on Jeff Gateway LLC and all future owners: I. RESTRICTIONS 1. Restrictions. The Owner and all future owners: (a) Shall not use or allow the use of the Real Estate for residential purposes, including, but not limited to, daily child care facilities or educational facilities for children (e.g., daycare centers or K-12 schools). (b) Shall not use the Real Estate for any agricultural use. II. GENERAL PROVISIONS 2. Restrictions to Run with the Land. The restrictions and other requirements described in this Covenant shalt 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, hefts 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. 2 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 Reiated 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 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 Departments 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 4 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. Severabilitv. 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 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 . STATE OF COUNTY OF ) ) SS: Jeff Gateway LLC 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 My Commission Expires: This instrument prepared by: , Notary Public Residing in County, 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) 6 EXHIBIT A Deed of the Real Estate EXHIBIT B Map of the Real Estate BFD 4020016 - Environmental Restrictive Covenant (10-19-00-101-934.000-010) 10TH ST 10-19-00-101-934.000_010 l\ N s HsT f i tut01 g �I ! t 1 1 � r 1 I I - Mapped By: Malt Casale, IDEM, Office of Land Ouallly, - Silence Services Branch, Enyncwrlog & GIS Services, October 10, 2016 Parcel la: 10-19-00-101-934.000-010 PLSS Info: Illinois Grant # 1 Jeffersonville Township Clark County, IN Disclaimer: This map is 'Blended f0 servo as on HA In graphic representation only This Information Is nil warranted for accwacy or olhor purposes. IDEM a 80 Environmental Restrictive Covenant Street �Ib 100 Feat 20 10 Melees [Clark County] Project Area Jeffersonville EXHIBIT C Copy of Comfort Letter 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 TABLE 1 Jeffersonville Gateway, Jeffersonville - BFD #4110802 PIN 10-19-00-101-934,000-010 Soil Concentrations Exceedi _plicable IDEM RCG Screening Levels Sample Information Contaminant Detected & Result (parts per million (ppm)) Boring Depth Hexavalent Location (feet bgs) Date Arsenic Chromium B-28 0-2 7/2015 22.4 14 SP -5 4.9 16.1 DUP 4-5 6.9 17 SP -6 0-2 13.5 16.5 SP -7 4-5 23.2 15.1 SP -8 0-2 12.2 14.3 SP -9 2-4 11/2015 10 10.9 SP -10 4-5 17.4 14.6 SP -11 0-2 9.1 15.1 SP -12 0-2 _ 12.5 12.5 rSP -13 2-4 22.2 16.1 SP -14 0-2 12.1 15.7 j Site Wide Average 27.26 22.97 RDCSL 9.5 4.2 IDCSL 30 63 EX DCSL 920 2,70.0_ Notes: italics = above RCG Residential Direct Contact Screening Level bgs = below ground surface DUP = field duplicate PIN = Parcel Identification Number 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. WEST 10th STREET sP-10. •SP -9 sP--1 I. •SP -8 nom mom. ausTamial mignon. matm SP -12. SP; 7 SP -13. SP --14. n f !Illi 11-1+41-H+1 l 111+11-!I 11 H 11111111111111-14ii+1+1 i -i i 1111 t 1111 I H i 111-14-1+1+H ! H 1 1 1 1 1 1 H 1 1 I I-1+1-1-}-I-F{-!HH !-, SP -6 • WEST 9th STREET SITE PLAN PARCEL 10-19-00-101-934.000 010 g PHASE 11 LIMITED SUBSURFACE INVE STIGA GATEWAY PROJECT WEST 7th STREET AND INDIANA AVENUE JEFFERSONVILLE, INDIANA 47130 \SO Project Number: 170JEFFO5H Drawing file: SEE LOWER Date: 8/15 3 0 20 !0 60 SCALE: 1" = 60' Om. ay: AK Ckd 8y: LEFT MF Scale: App'd By: I AS SHOWN ATC �3 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 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 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. cd)pyrene in ground water at two locations above their respective residential tap ground water screening levels ("Res TAP GWSL.s"). Soil and ground water analytical results above applicable RCG screening levels are summarized on Tables 1 and 2 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 and ground water above applicable RCG screening levels. WHEREAS: The Department has not approved closure of environmental conditions on the Real Estate under the Remediation Closure Guide. However, the Department has determined that the land use restrictions contained in this Covenant will enable the Real Estate to be used safely for commercial use. WHEREAS: Environmental reports and other documents related to the Real Estate are hereby incorporated by reference and may be examined at the Public File Room of the Department, which is located in the Indiana Government Center North at 100 N. Senate Avenue, 12th Floor East, Indianapolis, Indiana. The documents may also be viewed electronically by searching the Department's Virtual File Cabinet on the Web at: http://www.in.00v/idem/4101.htm. NOW THEREFORE, Jeff Gateway LLC subjects the Real Estate to the following restrictions and provisions, which shall be binding on Jeff Gateway LLC and all future owners: I. RESTRICTIONS 1. Restrictions. The Owner and all future owners: (a) Shall not use or allow the use of the Real Estate for residential purposes, including, but not limited to, daily child care facilities or educational facilities for children (e.g., daycare centers or K-12 schools). (b) Shall not use the Real Estate for any agricultural use. (c) 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. 11. 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 2 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. 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 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 challenge the provisions or the appropriate court's jurisdiction. IV. TERM. MODIFICATION AND TERMINATION 9. Tenn. 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 4 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. Severabilitv. 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 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 STATE OF SS: COUNTY OF Jeff Gateway LLC 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 My Commission Expires: This instrument prepared by: , Notary Public Residing in ! County, 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) 6 EXHIBIT A Deed of the Real Estate EXHIBIT B Map of the Real Estate BFD 4020016 - Environmental Restrictive Covenant (10-19-00-101-935.000-010) Mapped By: Parcel ID: PLSS Info: Disclaimer: 10-19-00.101-935.000-010 — 9TH ST Matt Canals, IDEM, Office of Land Quality, Science Services Branch, Engineering & GIS Services, October 18, 2016 10-19-00-101-935.000-010 Illinois Grant p 1 Jeffersonville Township Clark County, IN This map is Intended to nerve as an aid In graphic representation only. This information Is not warrented for accuracy or olher purposes. Environmental Restrictive Covenant j Street w JAN O 00 160 Feel I t O 20 no Meru 1 Clark County , 0 6 Project Area] Jeffersonville EXHIBIT C Copy of Comfort Letter 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 r TABLE 1 Jeffersonville Gateway, Jeffersonville - BFD #4110802 PIN 10-19-00-101-935.000-010 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels___ Sample Information Contaminant Detected & Result (parts per million (ppm)) Boring Depth Location (feet bgs) Date Arsenic B-24 0-2 4.1 B-25 0-2 7/2015 20.5 B-26 0-2 16.6 Site Wide Average 27.26 RDCSL 9.5 IDCSL 30 EX DCSL 920 Notes: italics = above RCG Residential Direct Contact Screening Level bgs = below ground surface PIN = Parcel Identification Number Hexavalent Chromium 14 15.6 14 22.97 4.2 63 2,700 TABLE 2 Jeffersonville Gateway, Jeffersonville - BFD #4110802 PIN 10-19-00-101-935.000-010 Ground Water Concentrations Exceedinplicable IDEM RCG Screening Levels ! Sample Information Contaminant Detected & Result (parts per million (ppb)) lndeno Boring Benzo(a) Benzo(a) Benzo(b) Dibenz(a,h) Date (1,2,3 -cd) 1 Location anthracene pyrene fluoranthene anthracene yene SB -16 4/2015 0.803 0.884 0.736 I 0.198 0.543 SB -17 4/2015 1.22 1.7 1.34 I 0.401 1.18 Res TAP GWSL 0.12 0.2 _ 0.34 1 0.034 0.34 Notes: italics = above RCG Residential Tap Ground Water Scre nie ng Level PIN = Parcel Identification Number 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. C�1 t W i 0 SITE PLAN o PARCEL: 10-19-00-101-935000-010 g PHASE 11 LIMITED SUBSURFACE INVESTIGATION GATEWAY PROJECT N WEST 7th STREET AND INDIANA AVENUE JEFFERSONVILLE, INDIANA 47130 (PEST 10th STREET SB —17 H-25 *8-24 58-16� FORM KftWITMS usEn our tnr 30 N 0 10 1 20 JO SCALE: 1" = 30' Project Number 170JEFF05H Drawlrg r•'71e: SEE LOWER LEFT Dm, By: AK Ckd, By: MF Oaten Scale: ADD'd By: 8/15 AS SHOWN F7gure: ATC 4 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 chromium1, 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 1DCSL 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. 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. WHEREAS: The Department has not approved closure of environmental conditions on the Real Estate under the Remediation Closure Guide. However, the Department has determined that the land use restrictions contained in this Covenant will enable the Real Estate to be used safely for commercial use. WHEREAS: Environmental reports and other documents related to the Real Estate are hereby incorporated by reference and may be examined at the Public File Room of the Department, which is located in the Indiana Government Center North at 100 N. Senate Avenue, 12th Floor East, Indianapolis, Indiana. The documents may also be viewed electronically by searching the Department's Virtual File Cabinet on the Web at: htto://www.in.cov/idem/4101. htm. NOW THEREFORE, Jeff Gateway LLC subjects the Real Estate to the following restrictions and provisions, which shall be binding on Jeff Gateway LLC and all future owners: 1. RESTRICTIONS 1. Restrictions. The Owner and all future owners: (a) Shall not use or allow the use of the Real Estate for residential purposes, including, but not limited to, daily child care facilities or educational facilities for children (e.g., daycare centers or K-12 schools). (b) Shall not use the Real Estate for any agricultural use. (c) Shall neither engage in nor allow drilling or excavation of soil on the Real Estate without first submitting a work plan for approval by the Department at least sixty (60) days prior to beginning work for approval by the Department within thirty (30) days. Any removal, excavation or disturbance of soil from the Real Estate must be conducted in accordance with all applicable requirements of 'OSHA/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. (d) Shall restore soil disturbed as a result of excavation and construction activities on the Real Estate using only soil that meets RCG residential direct contact screening criteria. Upon the Department's request, the Owner shall provide 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 2 laws. Any removal, excavation or disturbance of soil from the Real Estate must be conducted in accordance with all applicable requirements of 'OSHA/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 Tots, 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. Bindina 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 aII 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 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 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 4 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 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 5 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. 6 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 STATE OF SS: COUNTY OF Jeff Gateway, LLC 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 My Commission Expires: This instrument prepared by: , Notary Public Residing -in County, 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 A Deed for the Real Estate EXHIBIT B Map of the Real Estate BFD 4160211 - Environmental Restrictive Covenant (10-19-00401-900.000-010) Mapped By: Parcel ID: PLSS Info: Disclaimer: [10-1- j ________________ ____9THST w 0 U 3 Malt Canale, IDEM, Office of Land Quality, Science Services Branch, Engineering & GIS Services, October 18, 2016 10-19-00-101-900.000-010 Illinois GraM # 1 Jeffersonville Township Clark County, IN This map Is Intended to serve as an aid In graphic representation only. This infarmsllon is not warranted for accuracy or other purposes. I� IDEM 10TH ST Environmental Restrictive Covenant Street Vie C q BD 1BD Feet o e• 2s td Maters Clark County Project Area J'1{efferrssoonnvBIe °111--7 EXHIBIT C Copy of Comfort Letter EXHIBIT D TABLE 1 Jeffersonville Gateway, Jeffersonville - BFD #4160211 PIN 10-19-00-101-900.000.010 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels TABLE 1 Jeffersonville Gateway, Jeffersonville - BFD #4160211 PIN 10-19-00-101-900.000-010 Soil Concentrations Exceeding Applicable IDEM RCG Screening Levels Sample Information Boring Depth Location (feet bgs) Contaminant Detected & Result (parts per million (ppm)) Date Arsenic Hexavalent Chromium Lead 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 I 302.59 RDCSL 9.5 4.2 400 IDCSL 30 63 800 EX DCSL 920 2,700 1,000 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 PIN = Parcel Identification Number EXHIBIT E Jeffersonville Gateway Project, Jeffersonville — Brownfield #4160211 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 andior 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 es depicting environmental conditions on the Real Estate. WEST 10th STREET � 1 a -74- B-2+ 1' Il H-1*1-H+f-1 z SITE PLAN PARCEL: 1049-00-101-900.000 0 PHASE II LIMITED SUBSURFACE INVESTIGATION GATEWAY PROJECT s WEST 7fh STREET I R EETIN AND INDIA47NAOAVENUE JEFFERSON WEST 9th STREET 60 0 20 40 00 SCALE: 1" Om. BY - project Number. K 170JA EFF05H K ehr Drawing Re: MF SEE LOWER LEFTAPO BY: Dote: I Seale: 8/15 { AS SHOWN Figura; Alt 5 EXHIBIT R Affirmative Obligations of Commission With Respect to Street Improvements (Subsection 12.19(b)) Commission or the City, at its or their expense, shall complete the construction of the Street Improvements: in accordance with: (i) the design and plans established pursuant to Subsections 6.3(h) and (i); (ii) the construction schedule jointly established by Developer and Commission; and (iii) the terms and conditions of this Exhibit; and (b) in a good and workmanlike manner that complies with all Applicable Laws.