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HomeMy WebLinkAbout21015_Five Points_Approval to PC Pkg_20200521From:Minnich, Carolyn To:Brian Borne; Paterson, Fern A.; Monk, Kelsey V. Cc:Scott, Michael; Lorscheider, Ellen; Nicholson, Bruce; Wahl, Tracy; Leonard, Laura; Samuel Watson (samuel.watson@ncdenr.gov); Liggins, Shirley; Day, Collin (collin.day@ncdenr.gov); Walch, John; Jesneck, Charlotte; Tatum, Katie; Macdonald, Janet K; Channell, Ryan; Bateson, James Subject:21015 Approval to Public Comment (Five Points Brownfields Property, Union County) Date:Thursday, May 21, 2020 1:04:00 PM Attachments:21015_Five Point_NBP with attachments 2020.05.19.pdf21015 Five Points_SNI 20200421.pdf21015_Five Points NI 20200429.pdf3019-4328 Brownfields Map 04.30.20.pdf Dear Mr. Brian Borne: Based on acceptance by the Prospective Developer of drafts of all four required brownfields documents -- the Notice of Intent to Redevelop a Brownfields Property (NI), Summary of Notice of Intent to Redevelop a Brownfields Property (SNI), Notice of Brownfields Property (NBP) and the Brownfields Agreement (Exhibit A to the NBP) -- and DEQ's approval of the plat component of the NBP, Prospective Developer may now proceed to the tasks required by N.C.G.S. § 130.310.34(a) in connection with the required public notice and comment period of at least 30 days regarding the subject brownfields project. Those tasks are as follows: 1. Publish the approved SNI in a newspaper of general circulation serving the area in which the brownfields property is located, 2. Conspicuously post a copy of the SNI at the brownfields property, 3. Mail or deliver the SNI to each owner of property contiguous to the brownfields property, and 4. Provide a copy of the full NI, consisting of the one-page NI and the NBP with its three exhibits (the Brownfields Agreement, the survey plat, and the legal description), to all local governments having jurisdiction over the brownfields property (this may be done via email, just ask for email confirmation of receipt from the local gov't officials and include that confirmation in the documentation package you send to me). Pursuant to N.C.G.S. § 130.310.34.(b), the public comment period shall begin following completion of the above tasks. The NI and SNI, with a date filled in representing our belief as to how long it will take you to complete those tasks is June 1, 2020 (but subject to change if you propose a different date), are attached hereto. The comment period shall not end any sooner than 30 days after you complete the tasks. N.C.G.S. § 130.310.34(b) also requires the Prospective Developer to submit documentation of the public notices to DEQ prior to DEQ entering into a Brownfields Agreement. That documentation shall be submitted by promptly providing to me, preferably at carolyn.minnich@ncdenr.gov or at Brownfields Program, 1646 Mail Service Center, Raleigh, NC 27699-1646, the following: Affidavit of publication of the SNI from the newspaper or a copy of the SNI published in the newspaper which shows the name of the newspaper and the date of publication, Photos of the SNI posted at the site, one close up to show the wording and one farenough to show the posting location relative to the property, Copies of the cover letters and copies of the mailing receipts stamped by the post officeor copies of the delivery service receipts for the SNI sent to contiguous property owners, A letter or email confirming receipt of the full NI from each local government entity andthe entity where the document will be available for viewing. Thank you for your attention to these matters. If you have any questions or require additional information, you may contact me. 21015-17-090/Five Points (draft 20200429) 1 Property Owner: City of Monroe Recorded in Book ____, Page ____ Associated plat recorded in Plat Book ____, Page ____ NOTICE OF BROWNFIELDS PROPERTY Brownfields Property Name: Five Points Gateway Brownfields Project Number: 21015-17-090 This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat component, have been filed this _____ day of __________________, 202__ by City of Monroe (“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 comprised of two parcels totaling approximately 1.8 acres located at 320 and 322 East Franklin Street. Historically the western parcel (320 E. Franklin Street) of the Brownfields Property was in residential use from as early as 1908 through the late 1930s, 21015-17-090/Five Points (draft 20200429) 2 an automotive repair facility from the late 1940s until at least 1959, was used by various textile distributors from at least 1992 through 2007, and has been vacant since 2016. The eastern parcel (322-330 E. Franklin Street) was in residential use from at least 1908 until the early 1960s and was used by various commercial operations including several salons/barber shops, a taxi service, a paint company, and a heating and cooling company from 1964 through the late 1990s. The Prospective Developer demolished the buildings located on both parcels in May 2019. Groundwater at the Brownfields Property is impacted with elevated concentrations of petroleum volatile organic compounds (VOCs) and chlorinated solvents. Elevated concentrations of arsenic have been observed in soil across the Brownfields Property but are considered to be within the range of naturally occurring background concentrations for the region. The City of Monroe intends to redevelop the Brownfields Property with office, retail, hotel, governmental, institutional, parking, open space, and with prior written DEQ approval, other commercial uses. The Brownfields Agreement between Prospective Developer and DEQ is attached hereto as Exhibit A. It is required by NCGS § 130A-310.32 and 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. The Brownfields Agreement’s Exhibit 2 consists of one or more data tables reflecting the concentrations of and other information regarding the Brownfields Property’s regulated substances and contaminants. Attached as Exhibit B to this Notice is a reduction, to 8.5 inches x 11 inches, 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 21015-17-090/Five Points (draft 20200429) 3 the Brownfields Agreement, and all subparagraph letters/numbers are the same as those used in the Brownfields Agreement. The following land use restrictions are hereby imposed on the Brownfields Property: a. No use may be made of the Brownfields Property other than office, retail, hotel, governmental, institutional, parking, open space, and with prior written DEQ approval, other commercial uses. For purposes of this restriction, the following definitions apply: i. “Office” defined as the provision of business or professional services; ii. “Retail” defined as the sale of goods or services, products, or merchandise directly to the consumer or businesses and includes showrooms, personal service, and the sales of food and beverage products; iii. “Hotel” defined as the provision of overnight lodging to paying customers, and to associated food services, gym, reservation, cleaning, utilities, parking and on-site hospitality, management and reception services; iv. “Governmental” refers to uses related to the administration of governmental and municipal functions, including without limitation municipal and administrative offices, fire departments and other governmental services; v. “Institutional” refers to the use of land, buildings or structures for public, civic, non-profit or quasi-public purposes, such as libraries, senior community centers, post-secondary education facilities, laboratories and similar research facilities, museums, galleries, performance or spaces; vi. “Parking” defined as the temporary accommodation of motor vehicles in an area designed for same; vii. “Open Space” defined as land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways, detention facilities for stormwater; and viii. “Commercial” 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 by DEQ in advance in regard to particular activity, no activities that encounter, expose, remove or use groundwater (for example, installation of water supply wells, ponds, lakes or swimming pools, or construction or excavation activities that encounter or expose groundwater) may occur on the Brownfields Property unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public health and the environment. Unless DEQ otherwise agrees, prior sampling and analysis of groundwater to the written satisfaction of DEQ in any areas proposed for such activities, and submittal of the analytical results to DEQ is required. If such results reflect contaminant concentrations that exceed the standards and screening levels applicable to the uses authorized for the Brownfields Property, the groundwater-related activities proposed may only occur in compliance with any written conditions DEQ imposes. c. The Brownfields Property may not be used for child care centers, adult care centers, 21015-17-090/Five Points (draft 20200429) 4 primary schools, residential uses, hospitals or dry cleaners without the prior written approval of DEQ. d. 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 Environmental Management Plan (“EMP”) as outlined below in subparagraph 15.h. e. Soil may not be removed from, or brought onto, the Brownfields Property without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless conducted in accordance with an approved EMP as outlined below in subparagraph 15.h. f. Surface water at the Brownfields Property may not be used for any purpose, other than in connection with legally compliant storm water collection and reuse techniques, without the prior written approval of DEQ. g. No enclosed building may be constructed on the Brownfields Property 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 installed and/or implemented 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. 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. h. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an EMP approved in writing by DEQ in advance (and 21015-17-090/Five Points (draft 20200429) 5 revised to DEQ’s written satisfaction prior to each subsequent redevelopment phase) that is consistent with all the other land use restrictions and describes redevelopment activities at the Brownfields Property, the timing of redevelopment phases, and addresses health, safety and environmental issues that may arise from use of the Brownfields Property during construction or redevelopment in any other form, including without limitation: i. soil and water management issues, including without limitation those resulting from contamination identified in the Environmental Reports; ii. issues related to potential sources of contamination referenced in Exhibit 2; iii. contingency plans for addressing, including without limitation the testing of soil and groundwater, newly discovered potential sources of environmental contamination (e.g., USTs, tanks, drums, septic drain fields, oil-water separators, soil contamination); and iv. plans for the proper characterization of, and, as necessary, disposal of contaminated soils excavated during redevelopment. i. 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. j. 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 Union 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 related to the conveyance may be redacted to the extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records Law. The owner conveying an interest may use the following mechanisms to comply with the obligations of this subparagraph: (i) If every lease and rider is identical in form, the owner conveying an interest may provide DEQ with copies of a form lease or rider evidencing compliance with this subparagraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notice and Submissions); or (ii) The owner conveying an interest may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV. k. None of the contaminants known to be present in the environmental media at the Brownfields Property, as described in Exhibit 2 of this Agreement and as modified by DEQ in writing if additional contaminants in excess of applicable standards are discovered at the Brownfields Property, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except: i. in de minimis quantities for cleaning and other routine housekeeping and maintenance activities; ii. as constituents of fuels, lubricants, oils, and other similar fluids 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; 21015-17-090/Five Points (draft 20200429) 6 iii. as constituents of products and materials customarily used and stored in industrial, office, retail, governmental, institutional, parking, warehousing environments, and with prior DEQ written approval, in other commercial environments, provided such products and materials are stored in original retail packaging and used and disposed of in accordance with applicable laws; and iv. in products or materials that are brought onto the Brownfields Property, kept in their original packaging or containers (that is, not used or repackaged) and later removed from the Brownfields Property in their original packaging or containers. l. 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. m. 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 Union County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Union County Register of Deeds office and that the land use restrictions are being complied with, and stating: i. the name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address of the owner submitting the LURU if said owner acquired any part of the Brownfields Property during the previous calendar year; ii. the transferee’s name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address, if said owner transferred any part of the Brownfields Property during the previous calendar year; iii. whether any vapor barrier and/or mitigation systems installed pursuant to subparagraph 15.g. 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. For purposes of the land use restrictions set forth above, the DEQ point of contact shall be the DEQ Brownfields Property Management Unit referenced in subparagraph 35.a. of Exhibit A hereto, at the address stated therein. ENFORCEMENT The above land use restrictions shall be enforceable without regard to lack of privity of estate or contract, lack of benefit to particular land, or lack of any property interest in particular land. The land use restrictions shall be enforced by any owner of the Brownfields Property. The land use restrictions may also be enforced by DEQ through the remedies provided in NCGS § 21015-17-090/Five Points (draft 20200429) 7 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__. City of Monroe By: __________________________________________ E. L. Faison City Manager NORTH CAROLINA _______________ COUNTY I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: ________________________________. Date: ___________________ ___________________________________ Official Signature of Notary ___________________________________ (Official Seal) Notary’s printed or typed name, Notary Public My commission expires: _____________________ 21015-17-090/Five Points (draft 20200429) 8 ************************************ APPROVAL AND CERTIFICATION OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY The foregoing Notice of Brownfields Property is hereby approved and certified. North Carolina Department of Environmental Quality By: _________________________________________ ________________________ Ellen Lorscheider Date Deputy Director, Division of Waste Management 1 Project 21015-17-090/Five Points Gateway EXHIBIT A NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: City of Monroe UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re: BROWNFIELDS PROPERTY REUSE ACT ) Five Points Gateway OF 1997, NCGS § 130A-310.30, et seq. ) 320 and 322 E. Franklin Street Brownfields Project # 21015-17-090 ) Monroe, Union County I. INTRODUCTION This Brownfields Agreement (“Agreement”) is entered into by the North Carolina Department of Environmental Quality (“DEQ”) and the City of Monroe (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 320 and 322 E. Franklin 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. The City of Monroe is a municipality managed by Downtown Director/Assistant City Manager Brian Borne. The City of Monroe’s mailing address is 300 W. Crowell Street, Monroe, NC 28112. The City of Monroe intends to redevelop the Brownfields Property with office, retail, hotel, governmental, institutional, parking, open space, and with prior written DEQ approval, other commercial uses. Historically the western parcel (320 E. Franklin Street) of the Brownfields Property was in residential use from as early as 1908 through the late 1930s, an automotive repair facility from the late 1940s until at least 1959, was used by various textile distributors from at least 1992 2 Project 21015-17-090/Five Points Gateway through 2007, and has been vacant since 2016. The eastern parcel (322-330 E. Franklin Street) was in residential use from at least 1908 until the early 1960s and was used by various commercial operations including several salons/barber shops, a taxi service, a paint company, and a heating and cooling company from 1964 through the late 1990s. The Prospective Developer demolished the buildings located on both parcels in May 2019. Groundwater at the Brownfields Property is impacted with elevated concentrations of petroleum volatile organic compounds (“VOCs”) and chlorinated solvents. Elevated concentrations of arsenic have been observed in soil across the Brownfields Property, but are considered to be within the range of naturally occurring background concentrations for the region. 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 the City of Monroe for contaminants at the Brownfields Property. The Parties agree the City of Monroe’s entry into this Agreement, and the actions undertaken by the City of Monroe in accordance with the Agreement, do not constitute an admission of any liability by the City of Monroe for contaminants at the Brownfields Property. The resolution of this potential liability, in exchange for the benefit the City of Monroe shall provide to DEQ, is in the public interest. II. DEFINITIONS Unless otherwise expressly provided herein, terms used in this Agreement which are 3 Project 21015-17-090/Five Points Gateway 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 the City of Monroe. III. STATEMENT OF FACTS 3. The Brownfields Property is comprised of two parcels totaling approximately 1.8 acres. A single-story multi-unit commercial building totaling approximately 7,000 square-feet formerly located on the eastern parcel (322 E. Franklin Street), and a single story commercial building totaling approximately 12,000 square-feet formerly located on the western parcel (320 E. Franklin Street), were demolished by the Prospective Developer in May 2019. 4. The Brownfields Property is bordered to the north by E. Franklin Street followed by several commercial businesses including Awards Unlimited Hair Station Beauty Salon, and vacant commercial properties; to the south by the future Monroe Science Center (currently under construction); to the east by a parking lot followed by N. Church Street, the Monroe Police Department and a restaurant called Franklin Court Grille; and to the west by an undeveloped parcel followed by several single-family residential parcels. 5. Prospective Developer obtained or commissioned the following reports, referred to hereinafter as the “Environmental Reports,” regarding the Brownfields Property: 4 Project 21015-17-090/Five Points Gateway Title Prepared by Date of Report Phase I Environmental Site Assessment: 320 E. Franklin Street Resolve Environmental, PLLC November 10, 2016 Phase I Environmental Site Assessment: 322 E. Franklin Street Resolve Environmental, PLLC November 10, 2016 Phase II Environmental Site Assessment Resolve Environmental, PLLC November 18, 2016 Soil Sampling Results Summit Engineering, Laboratory, and Testing, PC May 15, 2019 Brownfields Assessment Report Resolve Environmental, PLLC November 13, 2019 6. For purposes of this Agreement, DEQ relies on the following information in the Environmental Reports and representations by Prospective Developer as to use and ownership of the Brownfields Property: a. The western parcel located at 320 E. Franklin Street was developed by at least 1908 with residences and remained residential into the 1930s. By 1947, according to aerial and Sanborn maps for the parcel, residential structures were removed and replaced with a large commercial structure used for auto sales and a smaller structure used for auto repair which included gasoline underground storage tanks (“USTs”). The large commercial structure was expanded by 1959 and the smaller structure and USTs had been removed. The western parcel has remained a commercial property since 1959. According to a review of city directories, this portion of the Brownfields Property was occupied by Don Moore Textiles in 1992, Majestic Textile Brokers in 1995, and Thompson Textiles and Downton Discount in 2008. This portion of the Brownfields Property has been vacant since 2016 and the former commercial buildings were demolished by the Prospective Developer in May 2019 in accordance with a DEQ approved 5 Project 21015-17-090/Five Points Gateway Environmental Management Plan (“EMP”) dated October 25, 2018. b. The eastern parcel located at 322 E. Franklin Street was developed by at least 1908 with residences and remained residential until at least 1959 according to a review of Sanborn maps and aerial photographs. By 1964, all of the residential buildings were demolished and the former commercial building was located along the eastern edge of the Brownfields Property boundary. Several commercial businesses have operated out of five units located within the former commercial building referenced as 322, 324, 326, 328, and 330 E. Franklin Street. According to a review of city directories, the following business have utilized this portion of the Brownfields Property: 322 E. Franklin St. was occupied by Ellis Taxi in 1992 and AAA Taxi and Anthony Belk Painting in 1999 until at least 2003. 324 E. Franklin St. was occupied by Paramount in 1995 and Ella’s Place and Herring and Yow Heating and Cooling in 1999. 326 E. Franklin St. was occupied by Friendly Barber Shop in 1992 until at least 2013 and Roger’s Barber Shop in 1992. 328 E. Franklin St. was occupied by Cliney’s Hair Styling in 1992 until at least 2003. 330 E. Franklin St. was occupied by Gethsemane Church of God in 1995 until at least 1999, and Jerry’s Hair Styling from 2003 until at least 2013. This portion of the Brownfields Property has also been vacant since 2016 and the former commercial buildings were demolished by the Prospective Developer in May 2019, also in accordance with the DEQ approved EMP. 7. Pertinent environmental information regarding the Brownfields Property and surrounding area includes the following: a. Phase I Environmental Assessment Reports for both parcels of the Brownfields 6 Project 21015-17-090/Five Points Gateway Property were completed by Resolve Environmental Services, PLLC (Resolve) in November 2016. Resolve identified the presence of former gasoline USTs from approximately 1947 to 1951 at the western parcel (320 E. Franklin St.) as a Recognized Environmental Condition (“REC”). Additionally, the former use of the western parcel as an automotive repair facility was considered a REC. No RECs were identified for the eastern parcel but Potential Environmental Concerns (“PECs”) were identified for the former gasoline service stations located at the western adjacent property (302 E. Franklin St.) and northeastern adjacent property (325 E. Franklin St.). b. A Phase II Environmental Site Assessment report was completed by Resolve on November 18, 2016. Five monitoring wells were installed across the Brownfields Property. Three of the wells were installed on the western parcel (320 E. Franklin Street) at the following locations: in the vicinity of the former gasoline storage tanks (TMW-1) in the northwest portion of the parcel; in the vicinity of the former auto repair shop (TMW-2) in the southwest proportion of the parcel; and on the east side of the former building (TMW-3) in the northeast portion of the parcel. Several petroleum related VOCs and metals were detected above the North Carolina Administrative Code Title 15A Subchapter 2L groundwater standards (“2L” July 2013). Several groundwater constituents also exceeded the DEQ Non-Residential Vapor Intrusion Screening Level (“VISL” February 2018). Soil samples were collected from 10 feet below land surface (ft BLS) at monitoring wells TMW-1 and TMW-2. Concentrations of Arsenic (Total) exceeded the DEQ Commercial/Industrial Preliminary Soil Remediation Goals (“PSRGs” May 2019); however, these detections are consistent with concentrations in the surrounding area and are considered to represent naturally occurring background levels. 7 Project 21015-17-090/Five Points Gateway Two monitoring wells were installed on the eastern parcel (322 E. Franklin Street) near the north-central (TMW-4) and south-central (TMW-5) borders of the Brownfields Property. Monitoring well TMW-5 was sampled for RCRA metals. Concentrations of Arsenic, Lead, and Chromium (Total) were above the 2L standards. Groundwater was not encountered at the total depth (28 ft BLS) of TMW-4. Soil samples were collected from TMW-4 and TMW- 5 at 8 ft BLS and 5 ft BLS, respectively. Concentrations of Arsenic and Total Chromium exceeded the Commercial/Industrial PSRGs in both samples. c. Immediately prior to the demolition of the two commercial buildings in May 2019, three surficial samples (0.5 ft BLS) were collected from beneath the slabs of each building (320 and 322 E. Franklin Street). No VOCs or semi-volatile organic compounds (SVOCs) were detected above Commercial/Industrial PSRGs. Arsenic was detected above Commercial/Industrial PSRGs in each of the six samples collected; however, these detections are also believed to represent naturally occurring background levels. d. During site work on the adjacent property to the south/southwest (the City of Monroe’s planned future Science Center), suspected petroleum-contaminated soils were encountered during the installation of storm water drain system. While investigating this condition, Resolve Environmental identified that a portion of the storm sewer line excavation was located on the Brownfields Property. A composite soil sample from the stockpiled soil from the trench excavation was collected by Resolve personnel on August 2, 2019. Concentrations of benzo(a)pyrene, benzo(a)anthracene, arsenic, barium and mercury that exceeded the Federal EPA Protection of Ground Water Regional Screening Levels (“RSLs”) and/or NCDEQ’s 8 Project 21015-17-090/Five Points Gateway Protection of Ground Water Preliminary Soil Remediation Goals (“PSRGs”) were reported in the initial composite sample collected. e. As reported in the November 2019 Brownfields Assessment Report prepared by Resolve, new monitoring wells MW-1 and MW-3 were installed in the same locations as temporary monitoring wells TMW-4 and TMW-5. In addition, a third new monitoring well, MW-2, was installed in the western portion of the 322 E. Franklin Street parcel in an attempt to delineate VOC impacts in groundwater. Analytical results detected several VOCs, but only concentrations of Benzene and 1,2-Dichloroethane (“DCA”) in MW-1 and MW-2 exceeded the 2L standard. No constituents were detected at concentrations exceeding Non-Residential VISLs. 8. The most recent environmental sampling at the Brownfields Property reported in the Environmental Reports occurred on August 15, 2019. 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 purchasing the 322 E. Franklin St. parcel of the Brownfields Property on November 16, 2015, purchasing the 320 E. Franklin St. parcel of the Brownfields Property on September 27, 2016, obtaining or commissioning the Environmental Reports, preparing and submitting to DEQ a Brownfields Property Application (“BPA”) dated March 14, 2017, demolishing the buildings located on both parcels in May 2019, and investigating the storm sewer line excavation described in paragraph 7.d. above. 9 Project 21015-17-090/Five Points Gateway 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. Prospective Developer has paid to DEQ the $2,000 fee to seek a brownfields agreement required by NCGS § 130A-310.39(a) (1), and shall make a payment to DEQ of $6,000 at the time Prospective Developer and DEQ enter into this Agreement, defined for this 10 Project 21015-17-090/Five Points Gateway purpose as occurring no later than the last day of the public comment period related to this Agreement. The Parties agree that such fees will suffice 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. a return to productive use of the Brownfields Property; b. the creation of construction and construction management opportunities for local businesses and local workers; once developed, permanent government, institutional, retail, office, and/or commercial jobs to local residents; c. potential creation of additional governmental and/or institutional space (with potentially accompanying commercial, retail, office and open space) for the downtown Monroe area; d. spur to additional community investment and development in the area resulting in further tax base and employment opportunities; e. positive impacts on the surrounding business community, including both increased property tax bases and taxes associated with increased economic activity.; f. “smart growth” through use of land in an already developed area, which avoids 11 Project 21015-17-090/Five Points Gateway 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, 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 EMP 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 office, retail, hotel, governmental, institutional, parking, open space, and with prior written DEQ approval, other commercial uses. For purposes of this restriction, the following definitions apply: 12 Project 21015-17-090/Five Points Gateway i. “Office” defined as the provision of business or professional services; ii. “Retail” defined as the sale of goods or services, products, or merchandise directly to the consumer or businesses and includes showrooms, personal service, and the sales of food and beverage products; iii. “Hotel” defined as the provision of overnight lodging to paying customers, and to associated food services, gym, reservation, cleaning, utilities, parking and on- site hospitality, management and reception services; iv. “Governmental” refers to uses related to the administration of governmental and municipal functions, including without limitation municipal and administrative offices, fire departments and other governmental services; v. “Institutional” refers to the use of land, buildings or structures for public, civic, non-profit or quasi-public purposes, such as libraries, senior community centers, post-secondary education facilities, laboratories and similar research facilities, museums, galleries, performance or spaces; vi. “Parking” defined as the temporary accommodation of motor vehicles in an area designed for same; vii. “Open Space” defined as land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways, detention facilities for stormwater; and viii. “Commercial” defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee. 13 Project 21015-17-090/Five Points Gateway b. Unless compliance with this Land Use Restriction is waived in writing by DEQ in advance in regard to particular activity, no activities that encounter, expose, remove or use groundwater (for example, installation of water supply wells, ponds, lakes or swimming pools, or construction or excavation activities that encounter or expose groundwater) may occur on the Brownfields Property unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public health and the environment. Unless DEQ otherwise agrees, prior sampling and analysis of groundwater to the written satisfaction of DEQ in any areas proposed for such activities, and submittal of the analytical results to DEQ is required. If such results reflect contaminant concentrations that exceed the standards and screening levels applicable to the uses authorized for the Brownfields Property, the groundwater- related activities proposed may only occur in compliance with any written conditions DEQ imposes. c. The Brownfields Property may not be used for child care centers, adult care centers, primary schools, residential uses, hospitals or dry cleaners without the prior written approval of DEQ. d. 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 14 Project 21015-17-090/Five Points Gateway 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 Environmental Management Plan (“EMP”) as outlined below in subparagraph 15.h. e. Soil may not be removed from, or brought onto, the Brownfields Property without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless conducted in accordance with an approved EMP as outlined below in subparagraph 15.h. f. Surface water at the Brownfields Property may not be used for any purpose, other than in connection with legally compliant storm water collection and reuse techniques, without the prior written approval of DEQ. g. No enclosed building may be constructed on the Brownfields Property 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 15 Project 21015-17-090/Five Points Gateway 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 installed and/or implemented 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. 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. h. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an 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; 16 Project 21015-17-090/Five Points Gateway iii. contingency plans for addressing, including without limitation the testing of soil and groundwater, newly discovered potential sources of environmental contamination (e.g., USTs, tanks, drums, septic drain fields, oil-water separators, soil contamination); and iv. plans for the proper characterization of, and, as necessary, disposal of contaminated soils excavated during redevelopment; i. 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. j. 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 Union 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 related to the conveyance may be redacted to the extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records Law. The owner conveying an interest may use the following mechanisms to comply with the obligations of this subparagraph: (i) If every lease and rider is identical in form, the owner conveying an interest may provide DEQ with copies of a form lease or rider evidencing compliance with this subparagraph, in lieu 17 Project 21015-17-090/Five Points Gateway 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. k. None of the contaminants known to be present in the environmental media at the Brownfields Property, as described in Exhibit 2 of this Agreement and as modified by DEQ in writing if additional contaminants in excess of applicable standards are discovered at the Brownfields Property, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except: i. in de minimis quantities for cleaning and other routine housekeeping and maintenance activities; ii. as constituents of fuels, lubricants, oils, and other similar fluids 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 constituents of products and materials customarily used and stored in industrial, office, retail, governmental, institutional, parking, warehousing environments, and with prior DEQ written approval, in other commercial environments, provided such products and materials are stored in original retail packaging and used and disposed of in accordance with applicable laws; and iv. in products or materials that are brought onto the Brownfields Property, kept in their original packaging or containers (that is, not used or repackaged) and later removed from the Brownfields Property in their original packaging or containers. 18 Project 21015-17-090/Five Points Gateway l. 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. m. 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 Union County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Union County Register of Deeds office and that the land use restrictions are being complied with, and stating: i. the name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address of the owner submitting the LURU if said owner acquired any part of the Brownfields Property during the previous calendar year; ii. the transferee’s name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address, if said owner transferred any part of the Brownfields Property during the previous calendar year; iii. whether any vapor barrier and/or mitigation systems installed pursuant 19 Project 21015-17-090/Five Points Gateway to subparagraph 15.g. 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. 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. VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST 19. In addition to providing access to the Brownfields Property pursuant to subparagraph 15.i. 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 20 Project 21015-17-090/Five Points Gateway 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 Union 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 21 Project 21015-17-090/Five Points Gateway to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Union 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 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 22 Project 21015-17-090/Five Points Gateway 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. 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 October 2, 2015 and in this Agreement. That use is for office, retail, hotel, governmental, institutional, parking, open space, and with prior written DEQ 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, 23 Project 21015-17-090/Five Points Gateway 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 24 Project 21015-17-090/Five Points Gateway 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 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. 25 Project 21015-17-090/Five Points Gateway 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 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 26 Project 21015-17-090/Five Points Gateway 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. 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 27 Project 21015-17-090/Five Points Gateway 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 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: E.L. Faison City of Monroe PO Box 69 Monroe, NC 28111-0069 28 Project 21015-17-090/Five Points Gateway 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 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 29 Project 21015-17-090/Five Points Gateway 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 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. 30 Project 21015-17-090/Five Points Gateway IT IS SO AGREED: NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY By: ____________________________________________________________________________ Ellen Lorscheider Date Deputy Director, Division of Waste Management IT IS SO AGREED: City of Monroe By: ____________________________________________________________________________ E.L. Faison Date City Manager 21050-17-090/Five Points Gateway (DRAFT) 1 Exhibit 2 The most recent environmental sampling at the Brownfields Property reported in the Environmental Reports occurred on August 15, 2019. The following tables set forth, for contaminants present at the Brownfields 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 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 Concentration Exceeding Standard (µg/L) Standard (µg/L) Arsenic TMW-1 10/27/2016 419 10 TMW-3 10/27/2016 216 TMW-5 10/27/2016 23 Benzene MW-1 8/15/2019 2.7 1 MW-2 8/15/2019 5.0 TMW-1 10/27/2016 1,570 TMW-3 10/27/2016 1,740 n-Butylbenzene TMW-1 10/27/2016 213 70 TMW-3 10/27/2016 80.5 Chromium TMW-1 10/27/2016 1,030 10 TMW-2 10/27/2016 1,280 TMW-3 10/27/2016 569 TMW-5 10/27/2016 37.3 1,2-Dichloroethane MW-1 8/15/2019 7.0 0.4 MW-2 8/15/2019 13.1 Ethylbenzene TMW-3 10/27/2016 986 600 Isopropylbenzene TMW-1 10/27/2016 362 70 TMW-3 10/27/2016 277 p-Isopropyltoluene TMW-1 10/27/2016 83.1 25 TMW-3 10/27/2016 91.7 Lead TMW-1 10/27/2016 3,090 10 TMW-2 10/27/2016 1,650 TMW-3 10/27/2016 1,710 TMW-5 10/27/2016 29.7 21050-17-090/Five Points Gateway (DRAFT) 2 Groundwater Contaminant Sample Location Date of Sampling Concentration Exceeding Standard (µg/L) Standard (µg/L) Mercury TMW-1 10/27/2016 5.0 1 TMW-2 10/27/2016 2.7 TMW-3 10/27/2016 1.5 2-Methylnaphthalene TMW-1 10/27/2016 237 30 TMW-3 10/27/2016 436 Naphthalene TMW-1 10/27/2016 1,150 6 TMW-3 10/2 7/2016 1,520 n-Propylbenzene TMW-1 10/27/2016 380 70 TMW-3 10/27/2016 392 Toluene TMW-3 10/27/2016 2,180 600 1,2,4-Trimethylbenzene TMW-1 10/27/2016 3,230 400 TMW-3 10/27/2016 1,510 1,3,5-Trimethylbenzene TMW-1 10/27/2016 977 400 TMW-3 10/27/2016 984 Vinyl Chloride TMW-1 10/27/2016 172 0.03 Xylenes TMW-1 10/27/2016 2,530 500 TMW-3 10/27/2016 5,350 GROUNDWATER VAPOR INTRUSION RISK Groundwater contaminants with potential for vapor intrusion (VI) in micrograms per liter (the equivalent of parts per billion), the vapor intrusion screening levels for which are derived from the Residential Vapor Intrusion Screening Levels of the Division of Waste Management February 2018 version): Groundwater Contaminant with Potential for Vapor Intrusion Sample Location Date of Sampling Concentration Exceeding Screening Level (µg/L) Non-Residential VI Screening Level1 (µg/L) Benzene TMW-1 10/27/2016 1,570 69 TMW-3 10/27/2016 1,740 Ethylbenzene TMW-3 10/27/2016 986 150 Mercury TMW-2 10/27/2016 2.7 0.75 TMW-3 10/27/2016 1.5 Naphthalene TMW-1 10/27/2016 1,150 150 TMW-3 10/2 7/2016 1,520 1,2,4- Trimethylbenzene TMW-1 10/27/2016 3,230 210 21050-17-090/Five Points Gateway (DRAFT) 3 Groundwater Contaminant with Potential for Vapor Intrusion Sample Location Date of Sampling Concentration Exceeding Screening Level (µg/L) Residential VI Screening Level1 (µg/L) 1,2,4- Trimethylbenzene TMW-3 10/27/2016 1,510 210 1,3,5-Trimethylbenzene TMW-1 10/27/2016 977 150 Vinyl Chloride TMW-1 10/27/2016 172 25 Xylenes TMW-1 10/27/2016 2,530 320 TMW-3 10/27/2016 5,350 1 Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels displayed for carcinogens are for a 1.0E-5 lifetime incremental cancer risk. 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 (May 2019 version): Soil Contaminant Sample Location Depth (ft) Date of Sampling Concentration Exceeding Screening Level (mg/kg) Industrial/ Commercial Screening Level1 (mg/kg) Arsenic2 TMW-1 10 10/27/2016 6.5 3 TMW-2 10 10/27/2016 10.4 TMW-4 8 10/27/2016 5.7 TMW-5 5 10/27/2016 12.2 320-1 0.5 4/22/2019 18 320-2 0.5 4/22/2019 11 320-3 0.5 4/22/2019 13 322-1 0.5 4/22/2019 8.2 322-2 0.5 4/22/2019 9.1 322-3 0.5 4/22/2019 8.7 STOCKPILE 0.5 8/2/2019 9.2 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. 2Concentrations believed to represent naturally occurring/background levels in soil.