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22049-18-060/Young’s Service Station (4/25/2019)
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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 &
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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
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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
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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
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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
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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
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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: _____________________
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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