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HomeMy WebLinkAbout22049-18-060-YoungsServiceStation_NBP_04.25.2019 22049-18-060/Young’s Service Station (4/25/2019) 1 Property Owner: BPR Brevard, LLC Recorded in Book ____, Page ____ Associated plat recorded in Plat Book ____, Page ____ NOTICE OF BROWNFIELDS PROPERTY Site Name: Young’s Service Station Brownfields Project Number: 22049-18-060 This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat component, have been filed this _____ day of __________________, 201_ by BPR Brevard, LLC (“Prospective Developer”). This Notice concerns contaminated property. A copy of this Notice certified by the North Carolina Department of Environmental Quality (“DEQ”) is required to be filed in the Register of Deeds’ Office in the county or counties in which the land is located, pursuant to North Carolina General Statutes (“NCGS”), § 130A-310.35(b). This Notice is required by NCGS § 130A-310.35(a), in order to reduce or eliminate the danger to public health or the environment posed by environmental contamination at a property (“Brownfields Property”) being addressed under the Brownfields Property Reuse Act of 1997, NCGS § 130A, Article 9, Part 5 (“Act”). Pursuant to NCGS § 130A-310.35(b), the Prospective Developer must file a certified copy of this Notice within 15 days of Prospective Developer’s receipt of DEQ’s approval of the Notice or Prospective Developer’s entry into the Brownfields Agreement required by the Act, whichever is later. The copy of the Notice certified by DEQ must be recorded in the grantor index under the names of the owners of the land and, if Prospective Developer is not the owner, also under the Prospective Developer’s name. The Brownfields Property is located at 115, 119, and 125 South Brevard Street, Charlotte, Mecklenburg County, North Carolina. The western portion of the Brownfields Property (125 South Brevard Street parcel) operated as a gasoline service station known as Young’s Service Station from 1929 through 1938, and then as a dry cleaning operation known as Fines Cleaner & 22049-18-060/Young’s Service Station (4/25/2019) 2 Tailors from at least 1944 through 1959. The central and eastern portions of the Brownfields Property (119 and 115 South Brevard Street parcels respectively) operated as several commercial businesses from 1937 to 2010 including but not limited to a photo supply store, a club & lounge, a travel agency, and a beauty salon. The Brownfields Property does not currently contain any infrastructure and has most recently been utilized as a parking lot. The intended redevelopment of the site includes a hotel, retail space, parking, and with prior written DEQ approval, other commercial uses. Groundwater at the Brownfields Property has likely been impacted by former underground storage tanks (USTs) associated with the former Young’s Service Station as elevated concentrations of volatile and semi-volatile organic compounds have been observed in groundwater. Additionally, elevated concentrations of arsenic and chromium have been observed in shallow soils at the Brownfields Property. The most recent environmental sampling event occurred in May, 2018. The Brownfields Agreement between Prospective Developer and DEQ is attached hereto as Exhibit A. It sets forth the use that may be made of the Brownfields Property and the measures to be taken to protect public health and the environment, and is required by NCGS § 130A-310.32. The Brownfields Agreement’s Exhibit 2 consists of one or more data tables reflecting the concentrations of and other information regarding the Brownfields Property’s regulated substances and contaminants. Attached as Exhibit B to this Notice is a reduction, to 8 1/2" x 11", of the survey plat component of this Notice. This plat shows areas designated by DEQ, has been prepared and certified by a professional land surveyor, meets the requirements of NCGS § 47-30, and complies with NCGS § 130A-310.35(a)’s requirement that the Notice identify: (1) The location and dimensions of the areas of potential environmental concern with respect to permanently surveyed benchmarks. (2) The type, location and quantity of regulated substances and contaminants known to exist on the Brownfields Property. Attached hereto as Exhibit C is a legal description of the Brownfields Property that would be sufficient as a description of the property in an instrument of conveyance. LAND USE RESTRICTIONS NCGS § 130A-310.35(a) also requires that the Notice identify any restrictions on the current and future use of the Brownfields Property that are necessary or useful to maintain the level of protection appropriate for the designated current or future use of the Brownfields Property and that are designated in the Brownfields Agreement. The restrictions shall remain in force in perpetuity unless canceled by the Secretary of DEQ (or its successor in function), or his/her designee, after the hazards have been eliminated, pursuant to NCGS § 130A-310.35(e). All references to DEQ shall be understood to include any successor in function. The land use restrictions below have been excerpted verbatim from paragraph 15 of 22049-18-060/Young’s Service Station (4/25/2019) 3 the Brownfields Agreement, and all subparagraph letters/numbers are the same as those used in the Brownfields Agreement. The following land use restrictions are hereby imposed on the Brownfields Property: a. No use may be made of the Brownfields Property other than for a hotel, retail space, parking, and with prior DEQ approval, other commercial uses. For purposes of this restriction, the following definitions apply: i. “Hotel” defined as the provision of overnight lodging to paying customers, and to associated food services, gym, reservation, cleaning, utilities, parking and on- site hospitality, management and reception services. ii. “Retail” defined as the sale of goods or services, products, or merchandise directly to the consumer or businesses and includes showrooms, personal service, and the sales of food and beverage products. iii. “Parking” defined as the temporary accommodation of motor vehicles in an area designed for same. iv. “Commercial” defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee. b. Groundwater at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ. Unless compliance with this Land Use Restriction is waived in writing by DEQ in advance in regard to particular activity, no activities that encounter, expose, remove or use groundwater (for example, installation of water supply wells, ponds, lakes or swimming pools, or construction or excavation activities that encounter or expose groundwater) may occur on the Brownfields Property unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public health and the environment. Prior sampling and analysis of groundwater to the written satisfaction of DEQ in any areas proposed for such activities, and submittal of the analytical results to DEQ is required. If such results reflect contaminant concentrations that exceed the standards and screening levels applicable to the uses authorized for the Brownfields Property, the groundwater- related activities proposed may only occur in compliance with any written conditions DEQ imposes. Activities may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public health and the environment. c. No activity that disturbs soil on the Brownfields Property, may occur unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in subparagraph 15.a above while fully protecting public health and the environment, except: i. in connection with landscape planting to depths not exceeding 24”; ii. mowing and pruning of above-ground vegetation; iii. for repair of underground infrastructure, provided that DEQ shall be given written notice at least seven days in advance of a scheduled repair (if only by email) of any 22049-18-060/Young’s Service Station (4/25/2019) 4 such repair, or in emergency circumstances no later than the next business day, and that any related assessment and remedial measures required by DEQ shall be taken and; iv. in connection to work conducted in accordance with a DEQ-approved Environmental Management Plan (EMP) as outlined below in subparagraph 15.g. d. No use of the Brownfields Property may occur until the then owner of the Brownfields Property conducts representative final grade soil sampling of the Brownfields Property as described in the EMP, referred to in subparagraph 15.g, below, pursuant to a plan approved in writing by DEQ that is not covered by building foundations, sidewalks, or asphaltic or concrete parking areas and driveways. e. Soil may not be removed from, or brought onto, the Brownfields Property without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless conducted in accordance with an approved EMP as outlined below in subparagraph 15.g. f. Surface water at the Brownfields Property may not be used for any purpose, other than in connection with legally compliant storm water collection and reuse techniques, without the prior written approval of DEQ. g. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an Environmental Management Plan (“EMP”) approved in writing by DEQ in advance (and revised to DEQ’s written satisfaction prior to each subsequent redevelopment phase) that is consistent with all the other land use restrictions and describes redevelopment activities at the Brownfields Property, the timing of redevelopment phases, and addresses health, safety and environmental issues that may arise from use of the Brownfields Property during construction or redevelopment in any other form, including without limitation: i. soil and water management issues, including without limitation those resulting from contamination identified in the Environmental Reports; ii. issues related to potential sources of contamination referenced in Exhibit 2; iii. contingency plans for addressing, including without limitation the testing of soil and groundwater, newly discovered potential sources of environmental contamination (e.g., USTs, tanks, drums, septic drain fields, oil-water separators, soil contamination); and iv. plans for the proper characterization of, and, as necessary, disposal of contaminated soils excavated during redevelopment; h. Neither DEQ, nor any party conducting environmental assessment or remediation at the Brownfields Property at the direction of, or pursuant to a permit, order or agreement issued or entered into by DEQ, may be denied access to the Brownfields Property for purposes of conducting such assessment or remediation, which is to be conducted using reasonable efforts to minimize interference with authorized uses of the Brownfields Property. i. Any deed or other instrument conveying an interest in the Brownfields Property 22049-18-060/Young’s Service Station (4/25/2019) 5 shall contain the following notice: “This property is subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Mecklenburg County land records, Book ____, Page ____.” For purposes of this Brownfield Agreement, room agreements with transient hotel guests are not “instruments conveying an interest in the Brownfields Property” subject to the notice provision of this section. A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though financial figures related to the conveyance may be redacted to the extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records Law. The owner conveying an interest may use the following mechanisms to comply with the obligations of this subparagraph: (i) If every lease and rider is identical in form, the owner conveying an interest may provide DEQ with copies of a form lease or rider evidencing compliance with this subparagraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notice and Submissions); or (ii) The owner conveying an interest may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV. j. None of the contaminants known to be present in the environmental media at the Brownfields Property, as described in Exhibit 2 of this Agreement and as modified by DEQ in writing if additional contaminants in excess of applicable standards are discovered at the Brownfields Property, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except: i. in de minimis quantities for cleaning and other routine housekeeping and maintenance activities; ii. in fluids in vehicles; and iii. as constituents of fuels, lubricants and oils in emergency generators, machinery, equipment and vehicles in on-board tanks integral to said equipment or in flammable liquid storage containers totaling no more than 25 gallons. k. Within 60 days after the effective date of this Agreement or prior to land disturbance activities, Prospective Developer shall abandon monitoring wells, injection wells, recovery wells, piezometers and other man-made points of groundwater access at the Brownfields Property, in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code, unless an alternate schedule is approved by DEQ. Within 30 days after doing so, the Prospective Developer shall provide DEQ a report, setting forth the procedures and results. l. During January of each year after the year in which the Notice referenced below in paragraph 20 is recorded, the owner of any part of the Brownfields Property as of January 1st of that year shall submit a notarized Land Use Restrictions Update (“LURU”) to DEQ, and to the chief public health and environmental officials of Mecklenburg County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Mecklenburg County Register of Deeds office and that the land use restrictions are being complied with, and stating: i. the name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address of the owner submitting the LURU if said owner acquired any part of the 22049-18-060/Young’s Service Station (4/25/2019) 6 Brownfields Property during the previous calendar year; ii. the transferee’s name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address, if said owner transferred any part of the Brownfields Property during the previous calendar year; iii. whether any soil caps installed pursuant to subparagraph 15.g above are being maintained such that they are intact, uncompromised, in good condition and continuing to serve as barriers to the soil contamination in relation to which they were installed. For purposes of the land use restrictions set forth above, the DEQ point of contact shall be the DEQ official referenced in subparagraph 35.a. of Exhibit A hereto, at the address stated therein. ENFORCEMENT The above land use restrictions shall be enforceable without regard to lack of privity of estate or contract, lack of benefit to particular land, or lack of any property interest in particular land. The land use restrictions shall be enforced by any owner of the Brownfields Property. The land use restrictions may also be enforced by DEQ through the remedies provided in NCGS § 130A, Article 1, Part 2 or by means of a civil action; by any unit of local government having jurisdiction over any part of the Brownfields Property; and by any person eligible for liability protection under the Brownfields Property Reuse Act who will lose liability protection if the restrictions are violated. Any attempt to cancel any or all of this Notice without the approval of the Secretary of DEQ (or its successor in function), or his/her delegate, shall be subject to enforcement by DEQ to the full extent of the law. Failure by any party required or authorized to enforce any of the above restrictions shall in no event be deemed a waiver of the right to do so thereafter as to the same violation or as to one occurring prior or subsequent thereto. FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS When any portion of the Brownfields Property is sold, leased, conveyed or transferred, pursuant to NCGS § 130A-310.35(d) the deed or other instrument of transfer shall contain in the description section, in no smaller type than that used in the body of the deed or instrument, a statement that the Brownfields Property has been classified and, if appropriate, cleaned up as a brownfields property under the Brownfields Property Reuse Act. IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this _____ day of _______________, 2019. BPR Brevard, LLC By: __________________________________________ Bhupendra Patel (or successor in function): Owner 22049-18-060/Young’s Service Station (4/25/2019) 7 NORTH CAROLINA ___________________ COUNTY I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: ________________________________. Date: ___________________ ___________________________________ Official Signature of Notary ___________________________________ (Official Seal) Notary’s printed or typed name, Notary Public My commission expires: _____________________ ************************************ 22049-18-060/Young’s Service Station (4/25/2019) 8 ************************************ APPROVAL AND CERTIFICATION OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY The foregoing Notice of Brownfields Property is hereby approved and certified. North Carolina Department of Environmental Quality By: _________________________________________ ________________________ Michael E. Scott Date Director, Division of Waste Management