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HomeMy WebLinkAbout19041_Davidson Depot St_draft Exhibit A dBFA 20170907 1 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 DRAFT EXHIBIT A NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: Davidson Depot LLC UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re: BROWNFIELDS PROPERTY REUSE ACT ) Metrolina Warehouse OF 1997, NCGS § 130A-310.30, et seq. ) 301 Depot Street Brownfields Project No. 19041-15-060 ) Davidson, Mecklenburg County I. INTRODUCTION This Brownfields Agreement (“Agreement”) is entered into by the North Carolina Department of Environmental Quality (“DEQ”) and Davidson Depot 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 301 Depot Street (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. Davidson Depot LLC is an Ohio limited liability company that was formed on September 18, 2015. Its registered agent is Corporation Service Company and its business address is 2626 Glenwood Avenue, Suite 550 Raleigh, NC 27608. The Principal Office for Davidson Depot LLC is located at 9349 Waterstone Boulevard, Cincinnati, Ohio 45249. The Brownfields Property is approximately 4.74 acres and is the site of the former Metrolina Warehouse. The Brownfields Property address is 301 Depot Street in Davidson, North Carolina (Mecklenburg County Tax Parcel Identification Number 00325301). Davidson Depot LLC’s redevelopment plans for the Brownfields Property include multi-family residential, retail, office, parking, open space, and subject to DEQ’s prior written approval, other commercial uses. The Brownfields Property is surrounded by land in commercial, residential, and open space use. Soil is 2 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 contaminated due to historical activities. 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 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 Davidson Depot LLC for contaminants at the Brownfields Property. The Parties agree that Davidson Depot LLC’s entry into this Agreement, and the actions undertaken by Davidson Depot LLC in accordance with the Agreement, do not constitute an admission of any liability by Davidson Depot LLC for contaminants at the Brownfields Property. The resolution of this potential liability, in exchange for the benefit Davidson Depot 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 Davidson Depot LLC. III. STATEMENT OF FACTS 3. The Brownfields Property comprises 4.74 acres. Prospective Developer has committed itself to redevelopment for no uses other than multi-family residential, retail, office, parking, open space, and subject to DEQ’s prior written approval, other commercial uses. 4. The Brownfields Property is bordered to the north by Depot Street and residential and 3 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 commercial use beyond; to the south by Eden Street and residential use beyond; to the east by Norfolk Southern Railway, commercial district of the Town of Davidson and Main Street beyond; and to the west by Sloan Street and residential use 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 Limited Site Investigation Report Terracon Consultants, Inc. October 20, 2016 Asbestos in Soil Survey Report Terracon Consultants, Inc. June 17, 2016 Site Observations Metrolina Warehouse Site MACTEC Engineering and Consulting, Inc. September 29, 2008 Report of Phase I Environmental Site Assessment MACTEC Engineering and Consulting, Inc. December 20 ,2007 Report of Environmental Services Law Engineering and Environmental Services, Inc. February 14, 2002 Report of Subsurface Asbestos Investigation Law Engineering and Environmental Services, Inc. February 18, 2002 Asbestos Reports Metrolina Warehouse 1980s Various Correspondences 1984 6. For purposes of this Agreement, DEQ relies on the following representations by Prospective Developer, property owner, and Division of Waste Management files as to use and ownership of the Brownfields Property: a. The Brownfields Property was first developed in 1890 as a warehouse for a cotton mill. Additions were constructed in 1940s and 1950s resulting in the current footprint of the warehouse and building located on the eastern portion of the Brownfields Property. The building is one story and comprises approximately 47,410 square feet. The warehouse on the western portion of the Brownfields Property was developed in 1976 and comprises 4 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 approximately 10,752 square feet. Concrete-paved and gravel lined parking areas are located between the two structures. b. Previous tenants include Linden Manufacturing, Davidson Cotton Mill, and Carolina Asbestos Company. From the 1930s until around the 1960s, Carolina Asbestos Company was a manufacturer of asbestos containing materials. c. Currently, the warehouse is leased to fitness and retail businesses for use and storage. Tenants include: Peak Fitness, Davidson Furniture Clearance, Butterfly Bin (thrift store), Ready Solutions (retailer of emergency supplies) Innovative Fabrication (storage and fabrication for metals parts for race cars) and Interstate Cycling (retailer of all-terrain vehicles). d. In December 2004, Metrolina Warehouse, LLC purchased the Brownfields Property from the Estate of Robert E. Kenyon and Elizabeth N. Kenyon. In 1976, the Kenyon’s purchased the Brownfields Property without the knowledge of any asbestos impacts. The Prospective Developer intends to purchase the Brownfields Property at the end of the brownfields process. 7. Pertinent environmental information regarding the Brownfields Property and surrounding area includes the following: a. Between around 1930 and 1960, the Brownfields Property was used by the Carolina Asbestos Company, an asbestos textile and tile manufacturer, for manufacturing activities that resulted in asbestos waste disposal on the Brownfields Property and nearby properties. Prior to 1930, the western portion of the Brownfields Property had a topographic low depression, used as a holding pond. The disposal of waste asbestos materials at this site filled this low area to its present level. From 1960 to 1976, the Brownfields Property was used by another company; the name and operations are not known at this time. 5 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 b. Carolina Asbestos Company, an asbestos shingle manufacturer operated on the Brownfields Property. Prior to 1975, the western portion of the Brownfields Property, which was a former holding pond, was used as a disposal for asbestos containing material. Due to erosion and daily use, portions of the soil cap eroded and friable asbestos was observed at ground surface in mid-1980s. An investigation was conducted after a resident found her children covered in a “a whitish material” after playing, and filed a complaint with the Mecklenburg County Department of Environmental Health (“Meck County”) on February 3, 1984. Following the complaint, Meck County and property owner took action to stabilize the Brownfields Property. Meck County oversaw the actions on the property and the site became somewhat of the “test-case” for which the EPA sent a group from Washington, D.C. In early 1984, over 60 samples were collected on the property and surrounding area to determine the location, depth, and concentration of asbestos containing materials (“ACM”). In late 1984, the disposal pond area was closed by placement of compacted layers of soil, vegetative ground cover and/or asphalt parking and the area was secured. Consequently, Meck County concluded that the site was in compliance with mandated requirements. c. In September 2016, the DEQ Superfund Program contacted the EPA Emergency Response and Removal Branch (“ERRB”) to conduct a Removal Site Evaluation (“RSE”) in the surrounding area to the Brownfields Property. On November 1, 2016, EPA and DEQ walked the Brownfields Property and surrounding area. During this time, a whiteish material was identified on Eden Street from a washout on the Brownfields Property. A sample was collected from the material in the street and rush analyzed. The analytical results showed chrysotile and amosite at concentrations greater than 1%. Access to the area was immediately restricted and ERRB conducted a removal action to address this material under EPA oversight. 6 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 d. From November 2016 through April 2017, EPA investigated potential ACM in the surrounding area. In May 2017, EPA began removal operations in the site area to assess and remove ACM in local yards. These removal operations are currently ongoing. e. In January 2017, the property owner, Metrolina Warehouse, LLC hired S&ME to conduct repair operations on the Brownfields Property to prevent immediate exposure to ACM in the surrounding area. Animal burrow holes were sealed, vegetation was removed, a layer of organic compost mixed with grass seed was applied, and erosion control matting over the compost/seed mix was installed. At this time the current property owner, Metrolina Warehouse, LLC, is responsible for inspecting and maintaining the cap until redevelopment. f. A previous tenant on the Brownfields Property was Recycled Paints located at 216 Eden Street. In March 1992, they were listed as a RCRA Small Quantity Generator EPA ID NCN986204998. No violations or incidents were reported. As of May 2014, they are no longer on the Brownfields Property. g. Historical references identified a 12,000-gallon fuel oil underground storage tank (“UST”) along the eastern wall of the eastern warehouse. This UST was determined to be off-site during an August 2016 ground penetrating radar survey. h. Located less than 300 feet east of the Brownfields Property, at 129 Depot Street, was the former Jackson Cleaners. The cleaner was in the area in the mid-1970s and that property has since been redeveloped. 8. The most recent environmental sampling at the Brownfields Property reported in the Environmental Reports occurred in August 2016. 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. 7 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 a. The soil on the Brownfields Property is impacted with asbestos debris. The Brownfields Property generally slopes from a high of 814 feet on the eastern portion to a low of 780 feet on the western portion. The landfill area is approximately 800 feet elevation. i. In February 2002, MACTEC completed a subsurface asbestos investigation and advanced 36 borings. MACTEC estimated approximately 2,100 to 2,300 cubic yards of ACM on the Brownfields Property. ii. In August 2015 Terracon collected forty-four (44) soil samples from nineteen (19) areas of suspect ACM. Twenty-six (26) samples detected Chrysotile Asbestos at 1% or greater. The depth of ACM ranged from shallow 1-2 ½ feet below ground surface (“bgs”) to deeper samples at 18 ½ to 20 feet bgs. b. Groundwater impacts are low. 2-Butanone was detected in monitoring well GW-03 at 5.7 µg/L; the applicable the standard is 4 µg/L. Metals concentrations were also detected above the applicable screening values for arsenic, barium, cadmium, chromium, lead, and selenium. The monitoring wells installed were temporary and turbidity may have contributed to the higher metal concentrations. c. Soil vapor samples were collected in August 2016. No constituents were detected above the residential screening levels. Cumulative results were calculated using the DEQ Brownfields Vapor Intrusion Hazard Quotient, and the hazard quotient was less than 0.2. 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 the following: a. obtaining or commissioning the Environmental Reports, b. preparing and submitting to DEQ a Brownfields Property Application (BPA) 8 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 dated June 4, 2015, c. contracting to purchase the Brownfields Property on November 4, 2014, d. preparing and submitting to DEQ a DRAFT Environmental Management Plan in accordance with paragraph 15.f. below. 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 9 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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 jobs; d. an increase in tax revenue for affected jurisdictions; e. additional retail, office, and residential space for the area; f. removal and capping of asbestos impacted areas during redevelopment; and g. “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 and Environmental Design certification program (Sustainable Sites, Water Efficiency, Energy & Atmosphere, Materials & Resources, Indoor Environmental Quality, Locations & Linkages, 10 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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) or Living Environmental Management Plan (LEMP) required by this Section. 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 multi-family residential, retail, office, parking, open space, and subject to DEQ’s prior written approval, other commercial uses. For purposes of this restriction, the following definitions apply: i. Multi-Family Residential is defined as multi-unit human dwellings, such as condominia, or apartments. Single family homes, townhomes, duplexes, or other units with yards are prohibited. ii. Retail is defined as the sale or provision 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. Office is defined as the provision of business or professional services. iv. Open Space is defined as land maintained in a natural or landscaped 11 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 state and used for natural resource protection, buffers, greenways, or detention facilities for stormwater. 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. b. Unless compliance with this Land Use Restriction is waived in writing in advance by DEQ in relation to particular buildings, demolition and/or renovation of any or all buildings on the Brownfields Property depicted on the plat component of the Notice referenced in paragraph 20 below shall be in accordance with applicable legal requirements, including without limitation those related to lead and asbestos abatement that are administered by the Health Hazards Control Unit within the Division of Public Health of the North Carolina Department of Health and Human Services. c. Groundwater 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. d. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an Asbestos Design Plan (“ADP”) signed and sealed by a North Carolina Professional Engineer and a North Carolina Accredited Asbestos Project Designer, and approved in writing by DEQ in advance of said redevelopment (and revised to DEQ’s written satisfaction prior to each subsequent redevelopment phase), that is consistent with all the other land use restrictions and includes, at a minimum, the following: i. asbestos fugitive emissions mitigation measures during development and 12 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 post-development excavation(s) and/or soil disturbance(s) that may expose asbestos material in said soil; ii. a plan for ambient and biased sampling of air during development activities to ensure the effectiveness of said fugitive emission mitigation measures; iii. a plan for implementation of visual emission control measures during demolition and construction; iv. a plan for the permanent engineered capping of all asbestos-containing soil; v. a plan for inspection and maintenance of said engineered cap(s); vi. a communications plan for coordination with any local government authorities such as local asbestos management districts that may be set up in the future; vii. a communications plan for coordination with Mecklenburg County Land Use and Environmental Services Agency (LUESA), Mecklenburg County Health and Human Services, DEQ and U.S. EPA for contingent emergency actions as necessary; and viii. a commitment to comply with any local ordinances regarding asbestos. e. No new buildings constructed on the Brownfields Property may be occupied until the ADP outlined above in subparagraph 15.d is implemented to DEQ’s written satisfaction and the satisfaction of said North Carolina Professional Engineer and said North Carolina Accredited Asbestos Project Designer as evidenced by said engineer’s and designer’s professional signatures/seals on a report that includes photographs and a description of the installation of said measures and caps. f. Physical redevelopment of the Brownfields Property may not occur other than 13 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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 paragraphs 7 and 8 and 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); iv. plans for the proper characterization of, and, as necessary, disposal of contaminated soils excavated during redevelopment; and v. in connection to work conducted in accordance with a DEQ-approved ADP as referenced in subparagraph 15.d. g. As part of the Land Use Restriction Update described below in paragraph 15.o for each year following the effective date of this Agreement 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 14 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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; 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); and vi. summary of activities related to inspections and maintenance of the permanent engineered capping referenced in subparagraphs 15.d. h. 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 12”; ii. mowing and pruning of above-ground vegetation; iii. for repair of underground infrastructure, provided that DEQ shall be 15 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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; iv. in connection with work conducted in accordance with a DEQ-approved ADP as outlined in subparagraph 15.d; and v. in connection with work conducted in accordance with a DEQ-approved EMP as outlined in subparagraph 15.f. i. No use of the Brownfields Property may occur until the then owner of the Brownfields Property conducts representative final grade soil sampling of any area on the Brownfields Property 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. j. 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 in paragraph 15.f. k. None of the contaminants known to be present in the environmental media at the Brownfields Property, as described in paragraphs 7 and 8 and Exhibit 2 to 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 fuel or other fluids customarily used in vehicles, landscaping equipment and emergency generators; and 16 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 iii. as constituents of products and materials customarily used and stored for purposes ancillary to the uses approved above in subparagraph 15.a., provided such products and materials are stored in original retail packaging and used and disposed of in accordance with applicable laws. l. The owner of any portion of the Brownfields Property where any future installed, DEQ-approved monitoring well is damaged by the owner, its contractors, or its tenants shall be responsible for repair of any such wells to DEQ’s written satisfaction and within a time period acceptable to DEQ, unless compliance with this Land Use Restriction is waived in writing by DEQ in advance. m. 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. n. 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 Mecklenburg 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 17 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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. o. 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. i. 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. ii. A LURU submitted for rental units shall include the rent roll and enough of each lease entered into during the previous calendar year to demonstrate compliance with lessee notification requirements in paragraphs 19 and 20 of this Agreement provided that if standard form leases are used in every instance, a copy of such standard form lease may be sent in lieu of copies of actual leases. iii. All LURUs shall state: A. the name, mailing address, telephone and facsimile numbers, 18 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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; B. the transferee’s name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address, if said owner, or each of the owners on whose behalf the joint LURU is submitted, transferred any part of the Brownfields Property during the previous calendar year; C. whether engineered caps under the approved ADP required in subparagraph 15.d and implemented in 15.e above are being inspected and maintained to prevent erosion and/or human exposure to contaminated soil or other media. 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 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. 19 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST 19. In addition to providing access to the Brownfields Property pursuant to subparagraph 15.m. 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 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 Mecklenburg 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 20 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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 Mecklenburg 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, 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 21 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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 while it owns 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 paragraph 35.a. below of any such required notification. 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 the Brownfields Property Application dated June 4, 2015 by which it applied for this Agreement. That use is, multi-family residential, retail, office, parking, open space , and subject to DEQ’s prior written approval, other commercial uses. 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, 22 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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. 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 23 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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 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 24 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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 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 25 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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. 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 26 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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: Carolyn F. Minnich (or successor in function) N.C. Division of Waste Management Brownfields Program Mail Service Center 1646 Raleigh, NC 27699-1646 b. for Prospective Developer: Charles A. Rulick (or successor in function) Davidson Depot, LLC 6135 Park South Drive, Suite 510 Charlotte, NC 28210 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 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 27 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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 or any future owner of the Brownfields Property in relation to the subject matter of this Agreement, Prospective Developer and any such owner 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 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. 28 19041-15-060/Metrolina (DRAFT 201700907) 300939644 v2 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: Davidson Depot LLC By: ____________________________________________________________________________ Date Title typed or printed: SCALE: CHECKED BY: DRAWN BY: DATE: FIGURE NO. 1 PROJECT NO.: NTS NRB LAC 12/12/2016 SITE VICINITY MAP METROLINA WAREHOUSE SITE SLOAN STREET AND DEPOT STREET DAVIDSON, NORTH CAROLINA 4335-16-213 Approximate Site Location SITE 19041-15-060/Metrolina (DRAFT 20170907) 1 Exhibit 2 The most recent environmental sampling at the Property reported in the Environmental Reports occurred on August 19, 2016.The following tables set forth, for contaminants present at the Property above unrestricted use standards or screening levels, the most recent concentration found at each sample location, and the applicable standard or screening level. Screening levels and groundwater 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 Most Recent Concentration Exceeding Standard (µg/L) Standard (µg/L) Arsenic GW-01 8/18/2016 14.7 10 GW-03 8/18/2016 10.9 Barium GW-01 8/18/2016 5520 700 GW-02 8/18/2016 1280 GW-03 8/18/2016 2010 Chromium GW-01 8/18/2016 411 10 GW-02 8/18/2016 236 GW-03 8/18/2016 126 Lead GW-01 8/18/2016 115 15 GW-02 8/18/2016 24.7 GW-03 8/18/2016 178 Selenium GW-01 8/18/2016 35.7 20 19041-15-060/Metrolina (DRAFT 20170907) 2 SOIL Soil contaminants in milligrams per kilogram (the equivalent of parts per million), the screening levels for which are derived from the Preliminary Industrial Health- Based Soil Remediation Goals of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section (October 2016 version): Soil Contaminant Sample Location Depth (ft) Date of Sampling Most Recent Concentration Exceeding Screening Level (mg/kg) Residential Screening Level1 (mg/kg) Benzo(a)anthracene SB-01 0-5 8/19/2016 0.803 0.16 Benzo(a)pyrene SB-01 0-5 8/19/2016 0.868 0.016 Benzo(b)fluoranthene SB-01 0-5 8/19/2016 0.936 0.16 Indeno(1,2,3-cd) pyrene SB-01 0-5 8/19/2016 0.448 0.16 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