HomeMy WebLinkAbout21059_South Street Condos West_Public Comment Package21059-17-092 / South Street Condos West
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Site Name: South Street Condos - West
Brownfields Project Number: 21059-17-092
Pursuant to NCGS § 130A-310.34, Lambert Development South Street LLC, as Prospective
Developer, has filed with the North Carolina Department of Environmental Quality (“DEQ”) a Notice
of Intent to Redevelop a Brownfields Property (“Property”) in Raleigh, Wake County, North Carolina.
The Brownfields Property, which is the former site of various automotive repair facilities, consists of
0.914 acres and is located at 611 West South Street. Environmental contamination exists on the
Brownfields Property in groundwater, surface water and soil. Lambert Development South Street LLC
has committed itself to redevelop the Brownfields Property for no uses other than office, open space,
recreation, high-density residential, parking, and subject to DEQ’s prior written approval, other
commercial uses. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed
Brownfields Agreement between DEQ and Lambert Development South Street LLC, which in turn
includes (a) a map showing the location of the Property, (b) a description of the contaminants involved
and their concentrations in the media of the Property, (c) the above-stated description of the intended
future use of the Brownfields Property, and (d) proposed investigation and remediation; and (2) a
proposed Notice of Brownfields Property prepared in accordance with NCGS § 130A-310.35.
The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the Cameron
Village Regional Library by contacting Carrie Lee at 1930 Clark Avenue, Raleigh, NC 27605, 919-856-
6703, or at carrie.lee@wakegov.com; or at the offices of the N.C. Brownfields Program, 217 West Jones
Street, Raleigh, NC or by contacting Shirley Liggins at that address, at shirley.liggins@ncdenr.gov, or
at (919) 707-8383. The full Notice of Intent may also be viewed online at the DEQ public record
database, Laserfiche, by entering the project number 21059-17-092 into the search bar at the following
web address: http://edocs.deq.nc.gov/WasteManagement.
Written public comments may be submitted to DEQ within 30 days after the latest of the
following dates: the date this Notice is (1) published in a newspaper of general circulation serving the
area in which the Brownfields Property is located, (2) conspicuously posted at the Brownfields Property,
and (3) mailed or delivered to each owner of property contiguous to the Brownfields Property. Written
requests for a public meeting may be submitted to DEQ within 21 days after the period for written public
comments begins. Those periods will start no sooner than November 25, 2019, and will end on the later
of: a) 30 and 21 days, respectively, after that; or b) 30 and 21 days, respectively, after completion of the
latest of the three (3) above-referenced dates. All public comments and public meeting requests should
be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environmental Quality
1646 Mail Service Center
Raleigh, North Carolina 27699-1646
21059-17-092 South Street Condos – West
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NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Site Name: South Street Condos - West
Brownfields Project Number: 21059-17-092
North Carolina’s Brownfields Property Reuse Act (the “Act”), North Carolina General Statutes
(“NCGS”) § 130A-310.30 through 130A-310.40, provides for the safe redevelopment of properties that may
have been or were contaminated by past industrial and commercial activities. One of the Act’s
requirements is this Notice of Intent to Redevelop a Brownfields Property approved by the North Carolina
Department of Environmental Quality (“DEQ”). See NCGS § 130A-310.34(a). The Notice of Intent must
provide, to the extent known, a legal description of the location of the brownfields property, a map showing
the location of the Brownfields Property, a description of the contaminants involved and their
concentrations in the media of the Brownfields Property, a description of the intended future use of the
Brownfields Property, any proposed investigation and remediation, and a proposed Notice of Brownfields
Property prepared in accordance with NCGS § 130A-310.35. The party (“Prospective Developer”) who
desires to enter into a Brownfields Agreement with DEQ must provide a copy of this Notice to all local
governments having jurisdiction over the Brownfields Property. The proposed Notice of Brownfields
Property for a particular brownfields project is attached hereto; the proposed Brownfields Agreement,
which is attached to the proposed Notice of Brownfields Property as Exhibit A, contains the other required
elements of this Notice. Written public comments may be submitted to DEQ within 30 days after the latest
of the following dates: the date the required summary of this Notice is (1) published in a newspaper of
general circulation serving the area in which the Brownfields Property is located, (2) conspicuously posted
at the Brownfields Property, and (3) mailed or delivered to each owner of property contiguous to the
Brownfields Property. Written requests for a public meeting may be submitted to DEQ within 21 days
after the period for written public comments begins. Those periods will start no sooner than November
25, 2019, and will end on the later of: a) 30 and 21 days, respectively, after that; or b) 30 and 21 days,
respectively, after completion of the latest of the three (3) above-referenced dates. All comments and
meeting requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environmental Quality
1646 Mail Service Center
Raleigh, North Carolina 27699-1646
NBP Shell 7/24/2018 (this is removed when approved for PC)
Project Number/Name (Draft or Final and Date)
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Property Owner: Lambert Development South Street LLC
Recorded in Book ____, Page ____
Associated plat recorded in Plat Book ____, Page ____
NOTICE OF BROWNFIELDS PROPERTY
Site Name: South Street Condos-West
Brownfields Project Number: 21059-17-92
This documentary component of a Notice of Brownfields Property (“Notice”), as well
as the plat component, have been filed this _____ day of __________________, 20__ by
Lambert Development South Street 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 611 West South Street, Raleigh, North Carolina and
is comprised of one 0.914-acre parcel with parcel identification number 1703460162. By the early
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1900s, the site was developed with a single family residence. By the 1950s, office buildings were
added on the site and by 1981 commercial buildings had replaced the single family residence.
Uses in the commercial buildings included different automotive repair businesses over the years.
All buildings were demolished in 2016. Environmental contaminants exist on the Brownfields
Property in the groundwater, soil and surface water. The Prospective Developer has committed to
redevelop the site for no uses other than office, open space, recreation, high-density residential,
parking, and subject to DEQ’s prior written approval, other commercial uses.
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 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
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 office, open space,
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recreation, high-density residential, parking, and subject to DEQ’s prior written approval, other
commercial uses commercial. For purposes of this restriction, the following definitions apply:
i. “Office” is defined as the provision of business or professional services.
ii. “Open space” is defined as land maintained in a natural or landscaped
state and used for natural resource protection, buffers, greenways, or detention or transport
facilities for storm water.
iii. “Recreation” is defined as indoor and outdoor exercise-related,
physically focused, or leisure-related activities, whether active or passive, and the facilities for
same, including, but not limited to, studios, swimming pools, sports-related courts and fields,
open space, greenways, parks, playgrounds, walking paths, and picnic and public gathering
areas.
iv. “High density residential” is defined as permanent dwellings where
residential units are attached to each other with common walls, such as condominia, apartments,
group homes, dormitories or boarding houses, and any property outside the dwelling structures is
usable by all residents and not privately owned as part of a particular unit, and shall include
related amenities, such as pools, clubhouses, courtyards, common areas, recreation areas and
parking garages. Ground floor units are prohibited unless approved in writing by DEQ in
advance.
v. “Parking” is defined as the temporary accommodation of motor vehicles
in an area designed for same.
vi. “Commercial” is defined as an enterprise carried on for profit or
nonprofit by the owner, lessee or licensee. For the purposes of this Agreement, this excludes use
as a dry cleaner using chlorinated solvents.
b. The Brownfields Property may not be used for child care, adult care centers or
schools without the prior written approval of DEQ.
c. 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 to this Agreement;
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);
iv. contingency plans related to sampling and managing soil, groundwater
and surface water related to the installation or maintenance of storm water drain lines or walking
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trails; and
v. plans for the proper characterization of, and, as necessary, disposal of
contaminated soils excavated during redevelopment.
d. Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
e. 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
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
EMP as outlined above in subparagraph 15.c.
f. No use of the Brownfields Property may occur until the then owner of the
Brownfields Property conducts representative final grade soil sampling 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.
g. 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 above in subparagraph 15.c.
h. No enclosed building may be constructed on the Brownfields Property and no
existing building, defined as those depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 20 below, may be occupied until DEQ determines in writing
that:
i. the building is or would be protective of the building’s users, public
health and the environment from risk of vapor intrusion based on site assessment data or a site-
specific risk assessment approved in writing by DEQ; or
ii. the building is or would be sufficiently distant from the Brownfields
Property’s groundwater and/or soil contamination based on assessment data approved in writing
by DEQ that the building’s users, public health and the environment will be protected from risk
from vapor intrusion related to said contamination; or
iii. vapor intrusion mitigation measures are designed, installed, and
implemented in a manner that will fully protect public health to the satisfaction of a professional
engineer licensed in North Carolina, as evidenced by said engineer’s professional seal on a report
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that includes photographs and a description of the installation and performance of said measures,
and to DEQ. Any design specification for vapor intrusion mitigation measures shall be approved
in writing by DEQ in advance of installation and/or implementation of said measures. The
design specifications shall include methodology(ies) for demonstrating performance of said
measures.
i. Submitted with the Land Use Restriction Update described below in
subparagraph 15.n for as long as physical redevelopment of the Brownfields Property continues
(except that the final deadline shall fall 90 days after the conclusion of physical redevelopment),
the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ
approval on environment-related activities since the last report, with a summary and drawings,
that describes:
i. actions taken on the Brownfields Property in accordance with Section
V: Work to be Performed above;
ii. soil grading and cut and fill actions;
iii. methodology(ies) employed for field screening, sampling and
laboratory analysis of environmental media;
iv. stockpiling, containerizing, decontaminating, treating, handling,
laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected
or confirmed to be contaminated with regulated substances; and
v. removal of any contaminated soil, water or other contaminated
materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all
legally required manifests shall be included).
j. 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.
k. Any deed or other instrument conveying an interest in the Brownfields
Property 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 Wake
County land records, Book ____, Page ____.” A copy of any such instrument shall be sent to the
persons listed in Section XV (Notices and Submissions), though financial figures and other
confidential information 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 may use the following mechanisms to comply with the obligations of this
paragraph: (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 paragraph, 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.
l. None of the contaminants known to be present in the environmental media at
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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. 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;
iii. as fuel or other fluids customarily used in vehicles, landscaping
equipment and emergency generators.
m. 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.
n. 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 Wake County, certifying that,
as of said January 1st, the Notice of Brownfields Property containing these land use restrictions
remains recorded at the Wake County Register of Deeds office and that the land use restrictions
are being complied with. The submitted LURU shall state the following:
i. the name, mailing address, telephone and facsimile numbers, and contact
person’s e-mail address of the owner or board, association or approved entity submitting the
LURU if said owner or each of the owners on whose behalf the joint LURU is submitted
acquired any part of the 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;
iii whether any vapor barrier and/or mitigation systems installed pursuant
to subparagraph 15.h above are performing as designed, and whether the uses of the ground
floors of any buildings containing such vapor barrier and/or mitigation systems have changed,
and, if so, how.
iv. A joint LURU may be submitted for multiple owners by a duly
constituted board or association and shall include the name, mailing address, telephone and
facsimile numbers, and contact person’s e-mail address of the entity submitting the joint LURU as
well as for each of the owners on whose behalf the joint LURU is submitted.
For purposes of the land use restrictions set forth above, the DEQ point of contact shall be
the DEQ operational unit referenced in subparagraph 35.a. of Exhibit A hereto, at the
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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 _______________, 20__.
Lambert Development South Street LLC
By: __________________________________________
Henry Lambert
Manager, Lambert Development South Street LLC
NORTH CAROLINA
WAKE 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
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___________________________________
(Official Seal) Notary’s printed or typed name, Notary Public
My commission expires: _____________________
************************************
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: _________________________________________ ________________________
Ellen Lorscheider Date
Deputy Director, Division of Waste Management
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EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: Lambert Development South Street LLC
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT ) South Street Condos-West
OF 1997, NCGS § 130A-310.30, et seq. ) 611 West South Street
Brownfields Project # 21059-17-92 ) Raleigh, Wake County
I. INTRODUCTION
This Brownfields Agreement (“Agreement”) is entered into by the North Carolina
Department of Environmental Quality (“DEQ”) and Lambert Development South Street LLC
(collectively the "Parties") pursuant to the Brownfields Property Reuse Act of 1997, NCGS §
130A-310.30, et seq. (the “Act”) for the property located at 611 West South Street in Raleigh,
Wake County, North Carolina (the “Brownfields Property”). A map showing the location of the
Brownfields Property that is the subject of this Agreement is attached hereto as Exhibit 1.
The Prospective Developer is Lambert Development South Street LLC. Lambert
Development South Street LLC is a manager-managed North Carolina limited liability company
registered to do business in North Carolina and has offices at 5 Hanover Square 14th Floor, New
York, NY 10004-2614.
Lambert Development South Street LLC proposes to redevelop the Brownfields Property
for no uses other than office, open space, recreation, high-density residential, parking, and
subject to DEQ’s prior written approval, other commercial uses.
The Parties agree to undertake all actions required by the terms and conditions of this
Agreement. The purpose of this Agreement is to settle and resolve, subject to reservations and
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limitations contained in Section VIII (Certification), Section IX (DEQ’s Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer’s Covenant Not to Sue), the
potential liability of Lambert Development South Street LLC for contaminants at the
Brownfields Property.
The Parties agree that Lambert Development South Street LLC’s entry into this
Agreement, and the actions undertaken by Lambert Development South Street LLC in
accordance with the Agreement, do not constitute an admission of any liability by Lambert
Development South Street LLC for contaminants at the Brownfields Property. The resolution of
this potential liability, in exchange for the benefit Lambert Development South Street LLC shall
provide to DEQ, is in the public interest.
II. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement which are
defined in the Act or elsewhere in NCGS § 130A, Article 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
1. “Brownfields Property” shall mean the property which is the subject of this
Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. "Prospective Developer" shall mean Lambert Development South Street LLC.
III. STATEMENT OF FACTS
3. The Brownfields Property comprises one parcel totaling 0.914 acres. The Brownfields
Property that is the subject of this agreement consists of one parcel (Wake County Tax Parcel
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Identification Number 1703460162) which was formed by a recombination of four parcels
(Wake County Tax Parcel Identification Numbers: 1703460192, 1703460143, 1703369192 and a
portion of part of 1703461141) and that, after recombination, now bears the address of 611 West
South Street, Raleigh Wake County. The Brownfields Property is currently vacant.
4. The Brownfields Property is bordered to the north by West South Street with an
unnamed and unlabeled office building with parking lot beyond; to the east by vacant property
with South Saunders Street and Heritage Park Apartments beyond; to the south by an
undeveloped parcel and single-family residential properties and Dorothea Drive beyond, and to
the west by an apartment building with single-family residences and Florence Street beyond.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the “Environmental Reports,” regarding the Brownfields Property:
Title Prepared by Date of Report
Phase I Environmental Site Assessment ECS March 13, 2015
Phase II Environmental Site Assessment ECS June 12, 2016
Field Density Report TerraTech March 8, 2017
Soil Excavation Report ECS March 24, 2017
Report of Observations TerraTech April 6, 2017
Limited Site Assessment Report ECS July 18, 2017
Fill Soil Sampling Report Withers Ravenal January 29, 2018
Stormwater Pipe Corridor Investigation
Report
WithersRavenel September 28, 2018
6. For purposes of this Agreement, DEQ and Prospective Developer rely on the
following information in the environmental reports as to use and ownership of the Brownfields
Property:
a. In 1914, the Brownfields Property was developed with one single-family
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residence.
b. By 1950, the single family residence remained at 615 West South Street, but
office buildings were present at 607 and 609 West South Street.
c. By 1972, the single family residence had been replaced by a commercial
building identified on Sanborn insurance maps as used for auto sales.
d. By 1981, the site had been developed with two commercial buildings
identified on aerial imagery. The buildings were demolished in December 2016. Known
commercial entities associated with either ownership or occupancy of the two buildings include
B and E Welding and Fabrication, M and J Automotive Services, Bennies Auto Service, Pensi
Auto Service, Mundo Latina, and Progressive Auto Care.
e. The Prospective Developer purchased 609 West South Street on March 11,
2016 and purchased 611, 615, and 617 West South Street on February 4, 2016. The respective
parcels associated with these addresses (only part of 609 was included in the Brownfields
Property) were recombined on September 13, 2018 into a single parcel which retains the address
of 611 West South Street.
7. Pertinent environmental information regarding the Brownfields Property and
surrounding area includes the following:
a. Single-family residences, as was present on the Brownfields Property, are
known to have had home heating oil tanks.
b. The suspected source of the chlorinated solvents detected in the groundwater is
from the different auto service businesses which operated on the Brownfields Property over time,
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and potentially from off-site sources.
8. The most recent environmental sampling at the Brownfields Property reported in the
Environmental Reports occurred on September 28, 2018. The tables set forth in Exhibit 2 to this
Agreement present contaminants present at the Brownfields Property above applicable standards
or screening levels for each media sampled.
9. For purposes of this Agreement DEQ relies on Prospective Developer’s
representations that Prospective Developer's involvement with the Brownfields Property has
been limited to obtaining or commissioning the Environmental Reports and geotechnical reports;
preparing and submitting to DEQ an initial Brownfields Property Application (BPA) dated
December 8, 2017 and a revised BPA on August 21, 2018, an Environmental Management Plan
(EMP) signed by DEQ on January 9, 2019, and various other documents in support of the
Brownfields process; and the following:
a. On March 11, 2016, Prospective Developer purchased the Brownfields
Property at 609 West South Street.
b. On February 4, 2016, Prospective Developer purchased 611, 615, and 617 West
South Street.
c. In or about December 2016, contractors for a predecessor entity razed the
buildings on site and removed the demolished buildings, junk cars, and debris form the site, and
also removed soil from the site, including a substantial quantity of contaminated soil, as advised
by the entity’s environmental consultant, ECS, to reduce contamination on the site. All excavated
contaminated material was disposed under manifest at permitted disposal facilities.
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d. Prospective Developer has installed a fence around the property boundaries and
has conducted required sedimentation and erosion control best management practices.
10. Prospective Developer has provided DEQ with information, or sworn certifications
regarding that information on which DEQ relies for purposes of this Agreement, sufficient to
demonstrate that:
a. Prospective Developer and any parent, subsidiary, or other affiliate has
substantially complied with federal and state laws, regulations and rules for protection of the
environment, and with the other agreements and requirements cited at NCGS § 130A-
310.32(a)(1);
b. As a result of the implementation of this Agreement, the Brownfields Property
will be suitable for the uses specified in the Agreement while fully protecting public health and
the environment;
c. Prospective Developer's reuse of the Brownfields Property will produce a
public benefit commensurate with the liability protection provided Prospective Developer
hereunder;
d. Prospective Developer has or can obtain the financial, managerial and
technical means to fully implement this Agreement and assure the safe use of the Brownfields
Property; and
e. Prospective Developer has complied with all applicable procedural
requirements.
11. The Parties agree that a $30,000 “Redevelopment Now” fee Prospective Developer
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has paid suffices as the $2,000 fee to seek a brownfields agreement required by NCGS § 130A-
310.39(a)(1), and, within the meaning of NCGS § 130A-310.39(a)(2), the full cost to DEQ and
the North Carolina Department of Justice of all activities related to this Agreement, unless a
change is sought to a Brownfields document after it is in effect, in which case there shall be an
additional fee of at least $1,000.
IV. BENEFIT TO COMMUNITY
12. The redevelopment of the Brownfields Property proposed herein would provide the
following public benefits:
a. an increase in the Brownfields Property’s productivity;
b. a spur to additional community investment and redevelopment, through
improved neighborhood appearance and otherwise;
c. the creation of an estimated 150 construction jobs and 3-5 permanent jobs;
d. an increase in tax revenue for affected jurisdictions;
e. additional office, open space, recreation, high-density residential, and parking
for the area;
f. “smart growth” through use of land in an already developed area, which avoids
development of land beyond the urban fringe (“greenfields”).
V. WORK TO BE PERFORMED
13. In redeveloping the Brownfields Property, Prospective Developer shall make
reasonable efforts to evaluate applying sustainability principles at the Brownfields Property,
using the nine (9) areas incorporated into the U.S. Green Building Council Leadership in Energy
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and Environmental Design certification program (Sustainable Sites, Water Efficiency, Energy &
Atmosphere, Materials & Resources, Indoor Environmental Quality, Locations & Linkages,
Awareness & Education, Innovation in Design and Regional Priority), or a similar program.
14. Based on the information in the Environmental Reports, and subject to imposition of
and compliance with the land use restrictions set forth below, and subject to Section IX of this
Agreement (DEQ’s Covenant Not to Sue and Reservation of Rights), DEQ is not requiring
Prospective Developer to perform any active remediation at the Brownfields Property other than
remediation that may be required pursuant to a DEQ-approved Environmental Management Plan
(EMP) required by this Section. However, prior to construction, Prospective Developer shall
replace the current terracotta pipe bisecting the Brownfields Property, in accordance with the
Environmental Management Plan referenced below in subparagraph 15.c, with piping which is
substantially impervious to water and which prevents the infiltration of groundwater into the pipe
through joints, seams or otherwise and which is installed in a manner that minimizes the
discharge of groundwater to surface water.
15. By way of the Notice of Brownfields Property referenced below in paragraph 20,
Prospective Developer shall impose the following land use restrictions under the Act, running
with the land, to make the Brownfields Property suitable for the uses specified in this Agreement
while fully protecting public health and the environment instead of remediation to unrestricted
use standards. All references to DEQ shall be understood to include any successor in function.
a. No use may be made of the Brownfields Property other than for office, open
space, recreation, high-density residential, parking, and subject to DEQ’s prior written approval,
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other commercial uses commercial. For purposes of this restriction, the following definitions
apply:
i. “Office” is defined as the provision of business or professional services.
ii. “Open space” is defined as land maintained in a natural or landscaped
state and used for natural resource protection, buffers, greenways, or detention or transport
facilities for storm water.
iii. “Recreation” is defined as indoor and outdoor exercise-related,
physically focused, or leisure-related activities, whether active or passive, and the facilities for
same, including, but not limited to, studios, swimming pools, sports-related courts and fields,
open space, greenways, parks, playgrounds, walking paths, and picnic and public gathering
areas.
iv. “High density residential” is defined as permanent dwellings where
residential units are attached to each other with common walls, such as condominia, apartments,
group homes, dormitories or boarding houses, and any property outside the dwelling structures is
usable by all residents and not privately owned as part of a particular unit, and shall include
related amenities, such as pools, clubhouses, courtyards, common areas, recreation areas and
parking garages. Ground floor units are prohibited unless approved in writing by DEQ in
advance.
v. “Parking” is defined as the temporary accommodation of motor vehicles
in an area designed for same.
vi. “Commercial” is defined as an enterprise carried on for profit or
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nonprofit by the owner, lessee or licensee. For the purposes of this Agreement, this excludes use
as a dry cleaner using chlorinated solvents.
b. The Brownfields Property may not be used for child care, adult care centers or
schools without the prior written approval of DEQ.
c. 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 to this Agreement;
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);
iv. contingency plans related to sampling and managing soil, groundwater
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and surface water related to the installation or maintenance of storm water drain lines or walking
trails; and
v. plans for the proper characterization of, and, as necessary, disposal of
contaminated soils excavated during redevelopment.
d. Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
e. 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
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
EMP as outlined above in subparagraph 15.c.
f. No use of the Brownfields Property may occur until the then owner of the
Brownfields Property conducts representative final grade soil sampling pursuant to a plan
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approved in writing by DEQ that is not covered by building foundations, sidewalks, or asphaltic
or concrete parking areas and driveways.
g. 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 above in subparagraph 15.c.
h. No enclosed building may be constructed on the Brownfields Property and no
existing building, defined as those depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 20 below, may be occupied until DEQ determines in writing
that:
i. the building is or would be protective of the building’s users, public
health and the environment from risk of vapor intrusion based on site assessment data or a site-
specific risk assessment approved in writing by DEQ; or
ii. the building is or would be sufficiently distant from the Brownfields
Property’s groundwater and/or soil contamination based on assessment data approved in writing
by DEQ that the building’s users, public health and the environment will be protected from risk
from vapor intrusion related to said contamination; or
iii. vapor intrusion mitigation measures are designed, installed, and
implemented in a manner that will fully protect public health to the satisfaction of a professional
engineer licensed in North Carolina, as evidenced by said engineer’s professional seal on a report
that includes photographs and a description of the installation and performance of said measures,
and to DEQ. Any design specification for vapor intrusion mitigation measures shall be approved
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in writing by DEQ in advance of installation and/or implementation of said measures. The
design specifications shall include methodology(ies) for demonstrating performance of said
measures.
i. Submitted with the Land Use Restriction Update described below in
subparagraph 15.n for as long as physical redevelopment of the Brownfields Property continues
(except that the final deadline shall fall 90 days after the conclusion of physical redevelopment),
the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ
approval on environment-related activities since the last report, with a summary and drawings,
that describes:
i. actions taken on the Brownfields Property in accordance with Section
V: Work to be Performed above;
ii. soil grading and cut and fill actions;
iii. methodology(ies) employed for field screening, sampling and
laboratory analysis of environmental media;
iv. stockpiling, containerizing, decontaminating, treating, handling,
laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected
or confirmed to be contaminated with regulated substances; and
v. removal of any contaminated soil, water or other contaminated
materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all
legally required manifests shall be included).
j. Neither DEQ, nor any party conducting environmental assessment or
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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.
k. Any deed or other instrument conveying an interest in the Brownfields
Property 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 Wake
County land records, Book ____, Page ____.” A copy of any such instrument shall be sent to the
persons listed in Section XV (Notices and Submissions), though financial figures and other
confidential information 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 may use the following mechanisms to comply with the obligations of this
paragraph: (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 paragraph, 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.
l. 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
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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. 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;
iii. as fuel or other fluids customarily used in vehicles, landscaping
equipment and emergency generators.
m. 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.
n. 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 Wake County, certifying that,
as of said January 1st, the Notice of Brownfields Property containing these land use restrictions
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remains recorded at the Wake County Register of Deeds office and that the land use restrictions
are being complied with. The submitted LURU shall state the following:
i. the name, mailing address, telephone and facsimile numbers, and contact
person’s e-mail address of the owner or board, association or approved entity submitting the
LURU if said owner or each of the owners on whose behalf the joint LURU is submitted
acquired any part of the 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;
iii whether any vapor barrier and/or mitigation systems installed pursuant
to subparagraph 15.h above are performing as designed, and whether the uses of the ground
floors of any buildings containing such vapor barrier and/or mitigation systems have changed,
and, if so, how.
iv. A joint LURU may be submitted for multiple owners by a duly
constituted board or association and shall include the name, mailing address, telephone and
facsimile numbers, and contact person’s e-mail address of the entity submitting the joint LURU
as well as for each of the owners on whose behalf the joint LURU is submitted.
16. The desired result of the above-referenced land use restrictions is to make the
Brownfields Property suitable for the uses specified in the Agreement while fully protecting
public health and the environment.
17. The guidelines, including parameters, principles and policies within which the
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desired results are to be accomplished are, as to field procedures and laboratory testing, the
Guidelines of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section and the Division
of Waste Management Vapor Intrusion Guidance, as embodied in their most current version.
18. The consequence of achieving the desired results will be that the Brownfields
Property will be suitable for the uses specified in the Agreement while fully protecting public
health and the environment. The consequence of not achieving the desired results will be that
modifications to land use restrictions and/or remediation in some form may be necessary to fully
protect public health and/or the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
19. In addition to providing access to the Brownfields Property pursuant to subparagraph
15.j above, Prospective Developer shall provide DEQ, its authorized officers, employees,
representatives, and all other persons performing response actions under DEQ oversight, access
at all reasonable times to other property controlled by Prospective Developer in connection with
the performance or oversight of any response actions at the Brownfields Property under
applicable law. Such access is to occur after prior notice and using reasonable efforts to
minimize interference with authorized uses of such other property except in response to
emergencies and/or imminent threats to public health and the environment. While Prospective
Developer owns the Brownfields Property, DEQ shall provide reasonable notice to Prospective
Developer of the timing of any response actions to be undertaken by or under the oversight of
DEQ at the Brownfields Property. Except as may be set forth in the Agreement, DEQ retains all
of its authorities and rights, including enforcement authorities related thereto, under the Act and
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any other applicable statute or regulation, including any amendments thereto.
20. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields
Property for the Brownfields Property containing, inter alia, the land use restrictions set forth in
Section V (Work to Be Performed) of this Agreement and a survey plat of the Brownfields
Property. Pursuant to NCGS § 130A-310.35(b), within 15 days of the effective date of this
Agreement, Prospective Developer shall file the Notice of Brownfields Property in the Wake
County, North Carolina, Register of Deeds’ Office. Within three (3) days thereafter, Prospective
Developer shall furnish DEQ a copy of the documentary component of the Notice containing a
certification by the register of deeds as to the Book and Page numbers where both the
documentary and plat components of the Notice are recorded, and a copy of the plat with
notations indicating its recordation.
21. This Agreement shall be attached as Exhibit A to the Notice of Brownfields
Property. Subsequent to recordation of said Notice, any deed or other instrument conveying an
interest in the Brownfields Property 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 Wake County land records, Book ____, Page ____.” A copy of any such
instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though
financial figures and other confidential information 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. Prospective Developer may use the following mechanisms
to comply with the obligations of this paragraph: (i) If every lease and rider is identical in form,
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Prospective Developer may provide DEQ with copies of a form lease or rider evidencing
compliance with this paragraph, in lieu of sending copies of actual, executed leases, to the
persons listed in Section XV (Notices and Submissions); or (ii) Prospective Developer may
provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section
XV.
22. The Prospective Developer shall ensure that a copy of this Agreement is provided to
any current lessee or sublessee on the Brownfields Property within seven days of the effective
date of this Agreement.
VII. DUE CARE/COOPERATION
23. The Prospective Developer shall exercise due care at the Brownfields Property with
respect to the manner in which regulated substances are handled at the Brownfields Property and
shall comply with all applicable local, State, and federal laws and regulations. The Prospective
Developer agrees to cooperate fully with any assessment or remediation of the Brownfields
Property by DEQ and further agrees not to interfere with any such assessment or remediation. In
the event the Prospective Developer becomes aware of any action or occurrence which causes or
threatens a release of contaminants at or from the Brownfields Property, the Prospective
Developer shall immediately take all appropriate action to prevent, abate, or minimize such
release or threat of release, shall comply with any applicable notification requirements under
NCGS § 130A-310.1 and 143-215.85, Section 103 of CERCLA, 42 USC § 9603, and/or any
other law, and shall immediately notify the DEQ Official referenced in subparagraph 35.a. below
of any such required notification.
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VIII. CERTIFICATION
24. By entering into this Agreement, the Prospective Developer certifies that, without
DEQ approval, it will make no use of the Brownfields Property other than that committed to in
this Agreement. That use is office, open space, recreation, high-density residential, parking, and
subject to DEQ’s prior written approval, other commercial uses commercial. Prospective
Developer also certifies that to the best of its knowledge and belief it has fully and accurately
disclosed to DEQ all information known to Prospective Developer and all information in the
possession or control of its officers, directors, employees, contractors and agents which relates in
any way to any past use of regulated substances or known contaminants at the Brownfields
Property and to its qualification for this Agreement, including the requirement that it not have
caused or contributed to the contamination at the Brownfields Property.
IX. DEQ’S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
25. Unless any of the following apply, Prospective Developer shall not be liable to DEQ,
and DEQ covenants not to sue Prospective Developer, for remediation of the Brownfields
Property except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the Brownfields Property by or under the control
or direction of the Prospective Developer increase the risk of harm to public health or the
environment, in which case Prospective Developer shall be liable for remediation of the areas of
the Brownfields Property, remediation of which is required by this Agreement, to the extent
necessary to eliminate such risk of harm to public health or the environment.
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c. A land use restriction set out in the Notice of Brownfields Property required
under NCGS § 130A-310.35 is violated while the Prospective Developer owns the Brownfields
Property, in which case the Prospective Developer shall be responsible for remediation of the
Brownfields Property to unrestricted use standards.
d. The Prospective Developer knowingly or recklessly provided false information
that formed a basis for this Agreement or knowingly or recklessly offers false information to
demonstrate compliance with this Agreement or fails to disclose relevant information about
contamination at the Brownfields Property.
e. New information indicates the existence of previously unreported
contaminants or an area of previously unreported contamination on or associated with the
Brownfields Property that has not been remediated to unrestricted use standards, unless this
Agreement is amended to include any previously unreported contaminants and any additional
areas of contamination. If this Agreement sets maximum concentrations for contaminants, and
new information indicates the existence of previously unreported areas of these contaminants,
further remediation shall be required only if the areas of previously unreported contaminants
raise the risk of the contamination to public health or the environment to a level less protective of
public health and the environment than that required by this Agreement.
f. The level of risk to public health or the environment from contaminants is
unacceptable at or in the vicinity of the Brownfields Property due to changes in exposure
conditions, including (i) a change in land use that increases the probability of exposure to
contaminants at or in the vicinity of the Brownfields Property or (ii) the failure of remediation to
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mitigate risks to the extent required to make the Brownfields Property fully protective of public
health and the environment as planned in this Agreement.
g. DEQ obtains new information about a contaminant associated with the
Brownfields Property or exposures at or around the Brownfields Property that raises the risk to
public health or the environment associated with the Brownfields Property beyond an acceptable
range and in a manner or to a degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under NCGS § 130A-310.35.
26. Except as may be provided herein, DEQ reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
27. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, NCGS § 113A-1, et seq.
28. Consistent with NCGS § 130A-310.33, the liability protections provided herein, and
any statutory limitations in paragraphs 25 through 27 above, apply to all of the persons listed in
NCGS § 130A-310.33, including future owners of the Brownfields Property, to the same extent
as Prospective Developer, so long as these persons are not otherwise potentially responsible
parties or parents, subsidiaries, or affiliates of potentially responsible parties.
X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
29. In consideration of DEQ’s Covenant Not To Sue in Section IX of this Agreement
and in recognition of the absolute State immunity provided in NCGS § 130A-310.37(b), the
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Prospective Developer hereby covenants not to sue and not to assert any claims or causes of
action against DEQ, its authorized officers, employees, or representatives with respect to any
action implementing the Act, including negotiating, entering, monitoring or enforcing this
Agreement or the above-referenced Notice of Brownfields Property.
XI. PARTIES BOUND
30. This Agreement shall apply to and be binding upon DEQ, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party’s signatory to this
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
XII. DISCLAIMER
31. Prospective Developer and DEQ agree that this Agreement meets the requirements of
the Act, including but not limited to the requirements set forth in NCGS § 130A-310.32(a)(2).
However, this Agreement in no way constitutes a finding by DEQ as to the risks to public health
and the environment which may be posed by regulated substances at the Brownfields Property, a
representation by DEQ that the Brownfields Property is fit for any particular purpose, nor a
waiver of Prospective Developer’s duty to seek applicable permits or of the provisions of NCGS
§ 130A-310.37.
32. Except for the land use restrictions set forth in paragraph 15 above and NCGS §
130A-310.33(a)(1)-(5)'s provision of the Act's liability protection to certain persons to the same
extent as to a prospective developer, no rights, benefits or obligations conferred or imposed upon
Prospective Developer under this Agreement are conferred or imposed upon any other person.
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XIII. DOCUMENT RETENTION
33. The Prospective Developer agrees to retain and make available to DEQ all business
and operating records, contracts, site studies and investigations, remediation reports, and
documents generated by and/or in the control of the Prospective Developer, its affiliates or
subsidiaries relating to storage, generation, use, disposal and management of regulated
substances at the Brownfields Property, including without limitation all Material Safety Data
Sheets or Safety Data Sheets, for six (6) years following the effective date of this Agreement,
unless otherwise agreed to in writing by the Parties. Said records may be retained electronically
such that they can be retrieved and submitted to DEQ upon request. At the end of six (6) years,
the Prospective Developer shall notify DEQ of the location of such documents and shall provide
DEQ with an opportunity to copy any documents at the expense of DEQ. By entering into this
Agreement, Prospective Developer waives no rights of confidentiality or privilege provided by
the North Carolina Public Records Act or otherwise and, at the time DEQ requests to copy or
inspect said documents, Prospective Developer shall provide DEQ with a log of documents
withheld from DEQ, including a specific description of the document(s) and the alleged legal
basis upon which they are being withheld. To the extent DEQ retains any copies of such
documents, Prospective Developer retains all rights it then may have to seek protection from
disclosure of such documents as confidential business information.
XIV. PAYMENT OF ENFORCEMENT COSTS
34. If the Prospective Developer fails to comply with the terms of this Agreement,
including, but not limited to, the provisions of Section V (Work to be Performed), it shall be
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liable for all litigation and other enforcement costs incurred by DEQ to enforce this Agreement
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
35. Unless otherwise required by DEQ or a Party notifies the other Party in writing of a
change in contact information, all notices and submissions pursuant to this Agreement shall be
sent by prepaid first class U.S. mail, as follows:
a. for DEQ:
Brownfields Property Management Unit (or successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Lambert Development South Street LLC
Attn: Henry Lambert
5 Hanover Square-14th Floor
New York, NY, 10004
Notices and submissions sent by prepaid first class U.S. mail shall be effective on the third day
following postmarking. Notices and submissions sent by hand or by other means affording
written evidence of date of receipt shall be effective on such date.
XVI. EFFECTIVE DATE
36. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving the signed, conditionally approved Agreement from DEQ. DEQ’s approval of
this Agreement is conditioned upon the complete and timely execution and filing of this
Agreement in the manner set forth herein. Prospective Developer shall expeditiously sign the
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Agreement in order to effect the recordation of the full Notice of Brownfields Property within
the statutory deadline set forth in N.C.G.S. § 130A-310.35(b). If the Agreement is not signed by
Prospective Developer within 45 days after such receipt, DEQ has the right to revoke its
approval and certification of this Agreement, and invalidate its signature on this Agreement.
XVII. TERMINATION OF CERTAIN PROVISIONS
37. If any Party believes that any or all of the obligations under Section VI
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the
requirements of the Agreement, that Party may request in writing that the other Party agree to
terminate the provision(s) establishing such obligations; provided, however, that the provision(s)
in question shall continue in force unless and until the Party requesting such termination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CONTRIBUTION PROTECTION
38. With regard to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
claims to the extent provided by NCGS § 130A-310.37(a)(5)-(6). The subject matter of this
Agreement is all remediation taken or to be taken and response costs incurred or to be incurred
by DEQ or any other person in relation to the Brownfields Property.
39. The Prospective Developer agrees that, with respect to any suit or claim for
contribution brought by it in relation to the subject matter of this Agreement, it will notify DEQ
in writing no later than 60 days prior to the initiation of such suit or claim.
40. The Prospective Developer also agrees that, with respect to any suit or claim for
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contribution brought against it in relation to the subject matter of this Agreement, it will notify
DEQ in writing within 10 days of receiving said suit or claim.
XIX. PUBLIC COMMENT
41. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after the last of the following public notice tasks occurs: publication of the
approved summary of the Notice of Intent to Redevelop a Brownfields Property required by
NCGS § 130A-310.34 in a newspaper of general circulation serving the area in which the
Brownfields Property is located; conspicuous posting of a copy of said summary at the
Brownfields Property; and mailing or delivery of a copy of the summary to each owner of
property contiguous to the Brownfields Property. After expiration of that period, or following a
public meeting if DEQ holds one pursuant to NCGS § 130A-310.34(c), DEQ may modify or
withdraw its consent to this Agreement if comments received disclose facts or considerations
which indicate that this Agreement is inappropriate, improper or inadequate.
IT IS SO AGREED:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
By:
____________________________________________________________________________
Michael E. Scott Date
Director, Division of Waste Management
IT IS SO AGREED:
LAMBERT DEVELOPMENT SOUTH STREET LLC
By:
____________________________________________________________________________
Henry Lambert Date
Manager, Lambert Development South Street LLC
VICINITY MAPNO SCALEDATE: 11-22-2019ZONE: NX-3-ULTOWNSHIP: RALEIGHCOUNTY: WAKESTATE: NORTH CAROLINAP.I.N. 1703-46-0162SCALE: 1"=30'SURVEYED BY: TPDRAWN BY: MTCHECK & CLOSURE BY: MTCAD FILE: BF_19133PROJECT NO: 2180084REVISIONS:WithersRavenelEngineers | Planners | Surveyors115 MacKenan Drive | Cary, NC 27511 | t: 919.469.3340 | license #: C-0832 |www.withersravenel.comEXHIBIT B TO THE NOTICE OF BROWNFIELDS PROPERTY - SURVEY PLATOWNER & PROSPECTIVE DEVELOPER: LAMBERT DEVELOPMENT SOUTH STREET, LLCBROWNFIELDS PROJECT NO. 21059-17-092 ~ SOUTH STREET CONDOS - WEST611 WEST SOUTH STREETRALEIGH, NC 27603"PRELIMINARYPLAT" NOT FORCONVEYANCE,RECORDATION,OR SALESCERTIFICATE OF SURVEY & ACCURACYI, MATTHEW A. TIMBLIN, LICENSED AS A PROFESSIONAL LAND SURVEYOR IN THE STATE OF NORTHCAROLINA, DO HEREBY CERTIFY THAT THIS PLAT WAS DRAWN UNDER MY SUPERVISION FROM ANACTUAL SURVEY MADE UNDER MY SUPERVISION DEED DESCRIPTION RECORDED IN DEED BOOK 16284,PAGE 2699 . THAT THE BOUNDARIES NOT SURVEYED ARE CLEARLY INDICATED AS DRAWN FROMINFORMATION REFERENCED ON PLAT; THAT THE RATIO OF PRECISION AS CALCULATED IS 1 : 33,000+ ;THAT THIS MAP WAS PREPARED IN ACCORDANCE WITH G.S. 47-30, AS AMENDED. WITNESS MYORIGINAL SIGNATURE AND SEAL THIS 4TH DAY OF NOVEMBER , A.D., 2019.MATTHEW A. TIMBLIN, PROFESSIONAL LAND SURVEYOR L-4844OWNER DATA:LAMBERT DEVELOPMENTSOUTH STREET, LLC5 HANOVER SQ FL 14NEW YORK, NY 100041 inch = 30 ft.30GRAPHIC SCALE0153060TYPE OF PLATI, MATTHEW A. TIMBLIN, PROFESSIONAL LAND SURVEYOR LICENSE NO. L-4844, CERTIFY TO ONE OFTHE FOLLOWING AS CHECKED BELOW;D. THAT THE SURVEY IS OF ANOTHER CATEGORY, SUCH AS THE RECOMBINATION OF EXISTINGPARCELS, A COURT-ORDERED SURVEY, OR OTHER EXCEPTION TO THE DEFINITION OFSUBDIVISION;MATTHEW A. TIMBLIN, PROFESSIONAL LAND SURVEYOR L-4844STREET ADDRESSNOTARY STATEMENTSTATE OFCOUNTY OFI CERTIFY THAT THE FOLLOWING PERSON(S) PERSONALLY APPEARED BEFORE ME THIS DAY, EACHACKNOWLEDGING TO ME THAT HE OR SHE VOLUNTARILY SIGNED THE FOREGOING DOCUMENT FOR THEPURPOSE STATED THEREIN AND IN THE CAPACITY INDICATED: .DATE: , 2019.PRINTED NAME: , NOTARY PUBLICMY COMMISSION EXPIRES:OWNER'S CERTIFICATIONTHIS CERTIFIES AND WARRANTS THAT THE UNDERSIGNED IS (ARE) THE SOLE OWNER(S) OF THE PROPERTYSHOWN ON THE MAP OR PLAT AND ANY ACCOMPANYING SHEETS HAVING ACQUIRED THE PROPERTY IN FEESIMPLE BY DEED(S) RECORDED IN THE COUNTY REGISTER OF DEEDS OFFICE WHERE THE PROPERTY ISLOCATED AND AS SUCH HAS (HAVE) THE RIGHT TO CONVEY THE PROPERTY IN FEE SIMPLE AND THAT THEDEDICATOR(S) HEREBY AGREE TO WARRANT AND DEFEND THE TITLE AGAINST ANY CLAIMS OF ALLPERSONS WHOMSOEVER EXCEPTED AS SPECIFICALLY LISTED HEREIN AND THAT BY RECORDING THIS PLATOR MAP I (WE) DO IRREVOCABLY DEDICATE TO THE CITY OF RALEIGH FOR PUBLIC USE ALL STREETS,EASEMENTS, RIGHTS-OF-WAY, PARKS AND GREENWAYS (AS THOSE INTERESTS ARE DEFINED IN THE CITYCODE) AND AS THE SAME ARE SHOWN ON THE PLAT FOR ALL LAWFUL PURPOSES TO WHICH THE CITY MAYDEVOTE OR ALLOW THE SAME TO USE AND UPON ACCEPTANCE THEREOF, IN ACCORDANCE WITH ALL CITYPOLICES, ORDINANCES, REGULATIONS OR CONDITIONS OF THE CITY OF RALEIGH, FOR THE BENEFIT OF THEPUBLIC PROVIDED ANY DEDICATION OF EASEMENTS FOR STORM DRAINAGE NOT SPECIFICALLY LABELEDCITY OF RALEIGH OR PUBLIC ARE NOT MADE TO THE CITY OF RALEIGH, BUT ARE IRREVOCABLY MADE TOTHE SUBSEQUENT OWNERS OF ANY AND ALL PROPERTIES SHOWN HEREON FOR THEIR USE AND BENEFIT.SIGNATURE(S) & TITLE/POSITION OF PROPERTY OWNER(S)NOTES1.AREAS COMPUTED BY COORDINATE METHOD.2.BASIS OF BEARINGS NAD 83(2011)3.ALL DISTANCES ARE HORIZONTAL GROUND DISTANCES.4.THE SUBJECT PROPERTY DOES NOT LIE WITHIN A F.E.M.A. DESIGNATEDFLOODPLAIN PER FIRM MAP NUMBER 3720170300J, AND WITH ANEFFECTIVE DATE OF MAY 02, 2006.5.THIS SURVEY WAS PREPARED WITHOUT THE BENEFIT OF A TITLE REPORTAND THE PROPERTY MAY BE SUBJECT TO ADDITIONAL MATTERS WHICH ACOMPLETE TITLE SEARCH WOULD REVEAL.6.SAMPLE LOCATIONS WERE ESTIMATED FROM THE PROVIDED SOILSAMPLE REPORTS OMPLETED BY WR.7.THE AREAS AND TYPES OF CONTAMINATION DEPICTED HEREONARE APPROXIMATIONS DERIVED FROM THE BEST AVAILABLEINFORMATION AT THE TIME OF FILING. A LISTING OF THETECHNICAL REPORTS USED TO PREPARE THIS PLAT AREAVAILABLE IN THE BROWNFIELDS AGREEMENT FOR THISPROPERTY.SHEET 1 OF 2
VICINITY MAPNO SCALEDATE: 11-22-2019ZONE: NX-3-ULTOWNSHIP: RALEIGHCOUNTY: WAKESTATE: NORTH CAROLINAP.I.N. 1703-46-0162SCALE: 1"=30'SURVEYED BY: TPDRAWN BY: MTCHECK & CLOSURE BY: MTCAD FILE: BF_19133PROJECT NO: 2180084REVISIONS:WithersRavenelEngineers | Planners | Surveyors115 MacKenan Drive | Cary, NC 27511 | t: 919.469.3340 | license #: C-0832 |www.withersravenel.comEXHIBIT B TO THE NOTICE OF BROWNFIELDS PROPERTY - SURVEY PLATOWNER & PROSPECTIVE DEVELOPER: LAMBERT DEVELOPMENT SOUTH STREET, LLCBROWNFIELDS PROJECT NO. 21059-17-092 ~ SOUTH STREET CONDOS - WEST611 WEST SOUTH STREETRALEIGH, NC 27603"PRELIMINARYPLAT" NOT FORCONVEYANCE,RECORDATION,OR SALESSHEET 2 OF 2 N/A
Exhibit - C
South Street Condos West
Beginning at an existing iron pipe located in the northwest corner of lot 1 and the southern right of way
of west south street, said iron pipe having NC grid coordinates (NAD 83- 2011) of N=736,230.74’,
E=2,103,966.75’, thence from said beginning point along the southern right of way of West South Street
south 87°52'09" east 157.81 feet to a point, thence continuing along the southern right of way of west
south street south 88°06'11" east 42.72 feet to a new iron pipe, thence leaving said right of way south
02°15'57" west 199.38 feet to a new iron pipe, thence north 87°40'26" west 199.80 feet to an existing
iron pipe, thence north 02°03'24" east 198.53 feet to the point and place of beginning containing 39810
sq. ft., 0.914 acres more or less, and being all of new lot 1 as shown on a map entitled “recombination
map for Lambert Development South Street, LLC” prepared by WithesRavenel dated 7/27/18.
Exhibit – 1
South Street Condos – West
21059-17-092 / South Street Condos West
1
Exhibit 2
The most recent environmental sampling at the Property reported in the Environmental
Reports occurred on August 24, 2018.The following table sets forth, for contaminants present at
the Property above unrestricted use standards or screening levels, the concentration found at each
sample location, and the applicable standard or screening level. Screening levels and standards
are shown for reference only and are not set forth as cleanup levels for purposes of this
Agreement.
GROUNDWATER
Groundwater contaminants in micrograms per liter (the equivalent of parts per billion),
the standards for which are contained in Title 15A of the North Carolina Administrative Code,
Subchapter 2L (2L), Rule .0202, (April 1, 2013 version):
Groundwater
Contaminant
Sample
Location
Date of
Sampling
Concentration
Exceeding
Standard (g/L)
Standard
(g/L)
1,2 dichloroethane TWSWP-7 8/24/2018 2.98 0.4
Tetrachloroethane TWSWP-7 8/24/2018 6.64 0.7
Trichloroethane TWSWP-4 8/24/2018 3.17 3 TWSWP-7 39.8
SOIL
Soil contaminants in milligrams per kilogram (the equivalent of parts per million), the
screening levels for which are derived from the Preliminary Residential Health- Based Soil
Remediation Goals of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section (May
2019 version):
Soil
Contaminant
Sample
Location
Depth
(ft)
Date of
Sampling
Concentration
Exceeding
Screening
Level
(mg/kg)
Residential
Screening
Level1 (mg/kg)
Arsenic SWP-1 1-4 8/24/2018 2.04 0.68 SWP-2 15-20 1.9
21059-17-092 / South Street Condos West
2
Soil
Contaminant
Sample
Location
Depth
(ft)
Date of
Sampling
Concentration
Exceeding
Screening
Level
(mg/kg)
Residential
Screening
Level1 (mg/kg)
SWP-3 1-5 1.3
SWP-4 10-15 7.25
SWP-5 1-5 1.36
SWP-6 10-15 5.61
SWP-7 2-5 4.18
SWP-8 10-15 4.61
Naphthalene SWP-2 15-20 8/24/2018 54.7 4.1
Trichloroethene SWP-8 10-15 8/24/2018 1.14 0.87
benzo(A)
anthracene
SWP-1 1-4
8/24/2018
3.5
1.1
SWP-2 15-20 16.3
SWP-4 10-15 1.32
SWP-7 2-5 1.13
SWP-8 10-15 2.63
benzo(B)
fluoranthene
SWP-1 1-4
8/24/2018
4.04
1.1
SWP-2 15-20 10.6
SWP-6 10-15 1.38
SWP-7 2-5 1.53
SWP-8 10-15 2.91
benzo(A)pyrene
SWP-1 1-4
8/24/2018
2.91
0.11
SWP-2 15-20 11.8
SWP-3 1-5 0.173
SWP-4 10-15 0.898
SWP-5 1-5 0.182
SWP-7 2-5 1.09
SWP-8 1-5 0.735
dibenz(A,H)
anthracene
SWP-1 1-4
8/24/2018
0.837
0.11
SWP-2 1-5 1.84
SWP-3 1-5 0.301
SWP-6 10-15 0.288
SWP-7 2-5 0.181
SWP-8 10-15 0.529
indeno(1,2,3-
CD)pyrene
SWP-1 15-20
8/24/2018
7.65
1.1 SWP-2 1-5 19.2
SWP-3 1-5 1.72
21059-17-092 / South Street Condos West
3
Soil
Contaminant
Sample
Location
Depth
(ft)
Date of
Sampling
Concentration
Exceeding
Screening
Level
(mg/kg)
Residential
Screening
Level1 (mg/kg)
SWP-4 1-5 0.308
SWP-6 10-15 2.39
SWP-7 1-5 1.29
SWP-8 10-15 5.23
Bis (2-
chloroisopropyl
)ether
SWP-2 15-20 8/24/2018 0.106 NE
1Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels
displayed for carcinogens are for a 1.0E-6 lifetime incremental cancer risk.
NE – No established screening level
SURFACE WATER
Surface water contaminants (in micrograms per liter, the equivalent of parts per billion),
the unrestricted use standards for which are contained in Title 15A of the North Carolina
Administrative Code, Subchapter 2B, Rule .0208 (June 30, 2016 version):
Surface Water Contaminant Sample
Location
Date of
Sampling
Concentration
Exceeding
Standard
(g/L)
Standard
(g/L)
1,2 dichloroethene Outfall 8/24/2018 0.407 NE
1,1 dichloroethene Outfall 8/24/2018 0.772 NE
cis 1,2 dichloroethane Outfall 8/24/2018 0.476 NE
di-isopropyl ether Outfall 8/24/2018 0.434 NE
Tetrachloroethene Outfall 8/24/2018 1 0.7
Trichloroethene Outfall 8/24/2018 5.4 2.5
NE-No established standard