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HomeMy WebLinkAbout24062 South and Hollis Brownfields NBP for Public Notice 20220401 South and Hollis LoSo/24062-20-060/20220401 1 Property Owner: KA LoSo Holdings LLC Recorded in Book ____, Page ____ Associated plat recorded in Plat Book ____, Page ____ NOTICE OF BROWNFIELDS PROPERTY Brownfields Property Name: South and Hollis LoSo Brownfields Project Number: 24062-20-060 This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat component, have been filed this _____ day of __________________, 202__ by ______________________________ (“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 one parcel (Parcel Number 121-042-01) consisting of 2.8167 acres located at 3423, 3435, and 3441 South Boulevard and 111 Hollis Road, South and Hollis LoSo/24062-20-060/20220401 2 Charlotte, Mecklenburg County. The Brownfields Property consisted of agricultural land in the early 1900s. By the 1940s, a gas station was developed in the southwestern corner of the Brownfields Property. By the mid-1950s, the northwestern and western buildings were constructed along South Boulevard and two additional residences were constructed in the central and southeastern portions of the Brownfields Property. The northwestern building (3423 South Boulevard) was utilized as a machining and metal working company from at least the 1950s until the early 1960s. The western building (3435 South Boulevard) was utilized as a lawn equipment repair facility from the early 1960s until recently. The southwestern portion of the Brownfields Property was utilized as a gas station from the 1950s until the early 1960s and as a night club or sweepstakes facility from the late 1960s until recently. The northwestern parcel (3423 South Boulevard) was developed with an approximate 3,984 square foot (sq ft) commercial building that was occupied by an auto painting facility. Recently, a contractor affiliated with Charlotte Water utilized a portion of the Brownfields Property for construction-related storage and staging. The Prospective Developer intends to redevelop the Brownfields Property for no other uses than high-density residential, retail, office, restaurant, parking, recreational, and with DEQ’s prior written approval, other commercial uses. Soil, groundwater and soil gas are contaminated at the Brownfields Property. 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 South and Hollis LoSo/24062-20-060/20220401 3 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 12 of the Brownfields Agreement, and all subparagraph letters/numbers are the same as those used in the Brownfields Agreement. The following land use restrictions are hereby imposed on the Brownfields Property: a. No use may be made of the Brownfields Property other than for high density residential, office, retail, restaurant, recreation, parking, and with DEQ’s prior written approval, other commercial uses. For purposes of this restriction, the following definitions apply: i. “High Density Residential” defined as permanent dwellings where residential units are attached to each other with common walls, such as condominia, apartments, group homes, dormitories or boarding houses, and any property outside the dwelling structures is usable by all residents and not privately owned as part of a particular unit (e.g., privately-owned courtyards are prohibited), and may include related amenities, such as pools, clubhouses, courtyards, common areas, fitness facilities, dog parks, indoor and outdoor recreation areas, other amenity and gathering spaces, and parking garages. Single family homes are prohibited; townhomes, duplexes or other units with yards are prohibited unless approved in writing by DEQ in advance. ii. “Office” defined as the provision of business or professional services. iii. “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. iv. “Restaurant” defined as a commercial business establishment that prepares and serves food and beverages to patrons. v. “Recreation” defined as indoor and outdoor exercise-related, physically focused, or leisure-related activities, whether active or passive, and the facilities for same, including, but not limited to, studios, swimming pools, sports-related courts and fields, open space, greenways, parks, playgrounds, walking paths, and picnic and public gathering areas. vi. “Parking” defined as the temporary accommodation of motor vehicles in an area designed for same. vii. “Commercial” defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee. b. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an Environmental Management Plan (“EMP”) approved in writing by DEQ in advance (and revised to DEQ’s written satisfaction prior to each subsequent redevelopment phase) that is consistent with all the other land use restrictions and describes redevelopment activities at the Brownfields Property, the timing of redevelopment South and Hollis LoSo/24062-20-060/20220401 4 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. demolition of existing buildings, if applicable; ii. issues related to known or potential sources of contamination, including without limitation those resulting from contamination identified in paragraphs 3 and 4 above; 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 and DEQ approval of both fill soil before import to the Brownfields Property and the disposition of all soil excavated from the Brownfields Property during redevelopment; c. Within 90 days after each one-year anniversary of 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 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 VI: Work to be Performed above; ii. soil grading and cut and fill actions; iii. methodology(ies) employed for field screening, sampling and laboratory analysis of environmental media; iv. stockpiling, containerizing, decontaminating, treating, handling, laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected or confirmed to be contaminated with regulated substances; and v. removal of any contaminated soil, water or other contaminated materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all legally required manifests shall be included). d. Groundwater at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ along with any measures DEQ deems necessary to ensure that the Brownfields Property will be suitable for the uses specified in subparagraph 12.a. above while fully protecting public health and the environment. Should groundwater be encountered or exposed during any activity on the Brownfields Property, it shall be managed in accordance with the DEQ-approved EMP outlined in subparagraph 12.b., or a plan approved in writing in advance by DEQ. e. No activity that disturbs soil on the Brownfields Property may occur unless and South and Hollis LoSo/24062-20-060/20220401 5 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 12.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 above in subparagraph 12.b. f. No use of the Brownfields Property may occur until the then owner of the Brownfields Property conducts representative final grade soil sampling, pursuant to a plan approved in writing by DEQ, of any area that is not covered by building foundations, sidewalks, or asphaltic or concrete parking areas and driveways. g. Soil may not be removed from, or brought onto, the Brownfields Property without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless conducted in accordance with an approved EMP as outlined above in subparagraph 12.b. h. No enclosed building may be constructed on the Brownfields Property and no existing building, defined as those depicted on the plat component of the Notice of Brownfields Property referenced in paragraph 16 below, may be occupied until DEQ determines in writing that: i. the building is or would be protective of the building’s users and public health from the risk of vapor intrusion based on site assessment data, or a site-specific risk assessment approved in writing by DEQ; or ii. a vapor intrusion mitigation system (VIMS) has been: 1. designed to mitigate the intrusion of subsurface vapors into building features in accordance with the most recent and applicable DWM Vapor Intrusion Guidance, Interstate Technology & Regulatory Council (ITRC) guidance, and American National Standards Institute (ANSI)/American Association of Radon Scientists and Technologists (AARST) standards, and that a professional engineer licensed in North Carolina, as evidenced by said engineer’s professional seal, is satisfied that the design is fully protective of public health, and shall include a performance monitoring plan detailing methodologies and schedule, both of which are subject to prior written DEQ approval; and 2. installed and an installation report is submitted for written DEQ approval that includes as-built diagrams, photographs, and a description of the installation, with said engineer’s professional seal confirming that the engineer is satisfied that the system was South and Hollis LoSo/24062-20-060/20220401 6 installed per the DEQ approved design. If any deviations from the system design were necessary during installation, then the report shall include details on said deviations, as well as the engineer’s seal certifying the VIMS, as installed, was installed in such a manner so as to be fully protective of public health. 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. The owner of any portion of the Brownfields Property where any existing, or subsequently 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. 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 fuel or other fluids customarily used in vehicles, landscaping equipment and emergency generators. iii. as constituents of products and materials customarily used and stored in high-density residential, office, retail, restaurant, recreation, parking, and, with written DEQ approval, other commercial uses, 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 the original packaging or containers. l. 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 XVII (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 South and Hollis LoSo/24062-20-060/20220401 7 paragraph: (i) If every lease or 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 XVII (Notices 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 XVII. m. During January of each year after the year in which the Notice referenced below in paragraph 16 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. If the property is transferred, the grantor shall submit a LURU (as outlined above) which covers the period of time they owned the property. The submitted LURU shall state the following: i. the Brownfields Property address, and the name, mailing address, telephone number, 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 a joint LURU is submitted, acquired any part of the Brownfields Property during the previous calendar year; ii. the transferee’s name, mailing address, telephone number, and contact person’s e-mail address, if said owner, or each of the owners on whose behalf a joint LURU is submitted, 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 12.h. above are performing as designed, and whether the uses of the ground floors, including any tenant renovations, of any buildings containing such vapor barrier and/or mitigation systems have changed, and, if so, how, and under which precautions so as not to interfere with the operation of said system. 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 31.a. of Exhibit A hereto, at the address stated therein. ENFORCEMENT The above land use restrictions shall be enforceable without regard to lack of privity of estate or contract, lack of benefit to particular land, or lack of any property interest in particular land. The land use restrictions shall be enforced by any owner of the Brownfields Property. The land use restrictions may also be enforced by DEQ through the remedies provided in NCGS § 130A, Article 1, Part 2 or by means of a civil action; by any unit of local government having jurisdiction over any part of the Brownfields Property; and by any person eligible for liability South and Hollis LoSo/24062-20-060/20220401 8 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 _______________, 202__. KA LoSo Holdings LLC By: __________________________________________ Name typed or printed: Title typed or printed: NORTH CAROLINA MECKLENBURG 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: _____________________ South and Hollis LoSo/24062-20-060/20220401 9 ************************************ APPROVAL AND CERTIFICATION OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY The foregoing Notice of Brownfields Property is hereby approved and certified. North Carolina Department of Environmental Quality By: _________________________________________ ________________________ Michael E. Scott Date Director, Division of Waste Management 1 South and Hollis LoSo/24062-20-060/20220322 EXHIBIT A NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: KA LoSo Holdings LLC UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re: BROWNFIELDS PROPERTY REUSE ACT ) 3423, 3435, and 3441 South OF 1997, NCGS § 130A-310.30, et seq. ) Boulevard and 111 Hollis Road Brownfields Project No. 24062-20-060 ) Charlotte, Mecklenburg County I. INTRODUCTION This Brownfields Agreement (“Agreement”) is entered into by the North Carolina Department of Environmental Quality (“DEQ”) and KA LoSo Holdings 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 3423, 3435, and 3441 South Boulevard and 111 Hollis Road, Charlotte, Mecklenburg County (the “Brownfields Property”). A map showing the location of the Brownfields Property that is the subject of this Agreement is attached hereto as Exhibit 1. The Prospective Developer is KA LoSo Holdings LLC, a limited liability corporation, headquartered at 601 Thirteenth Street NW, Suite 300 North, Washington, DC 20005. Its Senior Vice President is Adam Gooch, of the same address. 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 X (Certification), Section XI (DEQ’s Covenant Not to Sue and Reservation of Rights) and Section XII (Prospective Developer’s Covenant Not to Sue), the potential liability of KA LoSo Holdings LLC for contaminants at the Brownfields Property. 2 South and Hollis LoSo/24062-20-060/20220322 The Parties agree that KA LoSo Holdings LLC’s entry into this Agreement, and the actions undertaken by KA LoSo Holdings LLC in accordance with the Agreement, do not constitute an admission of any liability by KA LoSo Holdings LLC for contaminants at the Brownfields Property. The resolution of this potential liability, in exchange for the benefit KA LoSo Holdings 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 KA LoSo Holdings LLC. III. BROWNFIELDS PROPERTY INFORMATION SUMMARY 3. Relevant information about the history, ownership, and uses of the Brownfields Property is provided in the following summary table. Refer to the Exhibit 2 to this Agreement that presents data table(s) of the contaminants present at the Brownfields Property at concentrations above their applicable standards or screening levels for each media sampled. BROWNFIELDS PROPERTY INFORMATION SUMMARY Parcel Address(es) & Parcel IDs 3423, 3435, and 3441 South Boulevard and 111 Hollis Road Parcel Number: 121-042-01 Acreage 2.8167 Current Property Owner KA LoSo Holdings LLC Current Land Use(s) Commercial Site Vicinity Land Use(s) Commercial, residential and vacant land, with the Affordable Custom Iron Brownfields Property (BF Project No. 23056-19- 3 South and Hollis LoSo/24062-20-060/20220322 BROWNFIELDS PROPERTY INFORMATION SUMMARY 060) located approximately 300 feet southeast of the Brownfields Property, the South Boulevard Carvana Brownfields Property (BF Project No. 21011-17-060) located approximately the same distance to the south, and the Radio Center Property (BF Project No. 19072-15-060) located approximately the same distance to the northeast. Proposed Reuse(s) High-density residential, retail, office, restaurant, parking, recreational, and with DEQ’s prior written approval, other commercial uses Public Benefits of Reuse An increase in the Brownfields Property’s productivity; a spur to additional community investment and redevelopment; the creation of construction and commercial jobs; an increase in tax revenue for affected jurisdictions; expanded use of public transportation; and “smart growth” through use of land in an already developed area. Existing Land Use Restrictions Prior to Brownfields Agreement None ENVIRONMENTAL INFORMATION SUMMARY Historical Operations & Contaminant Sources The Brownfields Property consisted of agricultural land in the early 1900s. By the 1940s, a gas station was developed in the southwestern corner of the Brownfields Property. By the mid-1950s, the northwestern and western buildings were constructed along South Boulevard and two additional residences were constructed in the central and southeastern portions of the Brownfields Property. The northwestern building (3423 South Boulevard) was utilized as a machining and metal working company from at least the 1950s until the early 1960s. The western building (3435 South Boulevard) was utilized as a lawn equipment repair facility from the early 1960s until recently. The southwestern portion of the Brownfields Property was utilized as a gas station from the 1950s until the early 1960s and as a night club or sweepstakes facility from the late 1960s until recently. The northwestern parcel (3423 South Boulevard) was developed with an approximate 3,984 square foot (sq ft) commercial building that was occupied by an auto painting facility. Recently, a contractor affiliated with Charlotte Water utilized a portion of the Brownfields Property for construction-related storage and staging. 4 South and Hollis LoSo/24062-20-060/20220322 ENVIRONMENTAL INFORMATION SUMMARY Current Operations/Activities Site buildings have been razed in accordance with the DEQ-approved Environmental Management Plan in place for the property. The western parcel (3435 South Boulevard) was most recently occupied by a lawn equipment rental and repair company. The southwestern parcel (3441 South Boulevard) was most recently occupied by a sweepstakes store. Remaining portions of the property consist of vacant land and asphalt and gravel parking lots and driveways. Contaminated Media Soil: Pentachlorophenol, arsenic and hexavalent chromium were detected above Residential Preliminary Soil Remediation Goals. Concentrations of arsenic in soils are within background concentrations for the area. Groundwater: Tetrachloroethylene was detected above NC 15A NCAC 2L Groundwater Quality Standards. Chloroform was detected above NC Vapor Intrusion Groundwater Screening Levels. Sub-Slab Soil Gas: VOCs, including benzene and 1,1,2,2-tetrachloroethane, were detected at concentrations exceeding NC Residential Soil Gas Screening Levels. ID Numbers/Permits None Onsite Receptors Considered New development, construction workers and future residents Potential Offsite Receptors Considered i. The NCBP Receptor Survey is on file. ii. Water supply wells: No water supply wells were identified within 1,500 feet of the property. Potential offsite migration pathways Groundwater: VOCs were detected in groundwater with only tetrachloroethylene (2.1 µg/L) detected above the 15A NCAC 2L Groundwater Standard of 0.7 µg/L. 4. Environmental reports regarding the Brownfields Property referred to hereinafter as the “Environmental Reports,” include, but are not limited to: a. Those that the Prospective Developer obtained or commissioned regarding the Brownfields Property: 5 South and Hollis LoSo/24062-20-060/20220322 Title Prepared by Date of Report Brownfields Assessment Report, South and Hollis LoSo Hart & Hickman June 9, 2021 Phase I ESA South and Hollis LoSo Hart & Hickman September 25, 2020 IV. PROSPECTIVE DEVELOPER’S INVOLVEMENT 5. For purposes of this Agreement DEQ relies on Prospective Developer’s representations that Prospective Developer's involvement with the Brownfields Property has been limited to obtaining or commissioning the Environmental Reports, preparing and submitting to DEQ a Brownfields Property Application (BPA) dated December 4, 2021, and on November 23, 2021, Prospective Developer purchased the Brownfields Property. 6. 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 6 South and Hollis LoSo/24062-20-060/20220322 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. 7. The Parties agree that a $30,000 “Redevelopment Now” fee Prospective Developer 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. V. BENEFIT TO COMMUNITY 8. 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 construction and commercial jobs. d. an increase in tax revenue for affected jurisdictions; e. additional residential space for the area; 7 South and Hollis LoSo/24062-20-060/20220322 f. expanded use of public transportation which reduces traffic, improves air quality, and reduces our carbon footprint; and g. “smart growth” through use of land in an already developed area, which avoids development of land beyond the urban fringe (“greenfields”). VI. WORK TO BE PERFORMED 9. The guidelines as embodied in their most current version, including parameters, principles and policies within which the desired results are to be accomplished are (as to: field procedures, laboratory testing, Brownfields Program requirements, and remedial or mitigation measures): a. the Guidelines of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section; b. the Division of Waste Management Vapor Intrusion Guidance; c. the Brownfields Program Assessment Work Plan Checklist; and d. the Brownfields Survey Plat Checklist. 10. In redeveloping the Brownfields Property, Prospective Developer shall make reasonable efforts to evaluate applying sustainability principles at the Brownfields Property, using the nine (9) credit categories incorporated into the U.S. Green Building Council Leadership in Energy and Environmental Design (LEED) certification program (Integrative Process, Location and Transportation, Sustainable Sites, Water Efficiency, Energy & Atmosphere, Materials & Resources, Indoor Environmental Quality, Innovation, and Regional Priority), or a similar program. 8 South and Hollis LoSo/24062-20-060/20220322 11. Based on the information in the Environmental Reports, other available reports, and subject to imposition of and compliance with the land use restrictions set forth below, and subject to Section XI 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) as specified in subparagraph 12.b. below. VII. LAND USE RESTRICTIONS 12. By way of the Notice of Brownfields Property referenced below in paragraph 16, 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. a. No use may be made of the Brownfields Property other than for high density residential, office, retail, restaurant, recreation, parking, and with DEQ’s prior written approval, other commercial uses. For purposes of this restriction, the following definitions apply: i. “High Density Residential” defined as permanent dwellings where residential units are attached to each other with common walls, such as condominia, apartments, group homes, dormitories or boarding houses, and any property outside the dwelling structures is usable by all residents and not privately owned as part of a particular unit (e.g., privately-owned courtyards are prohibited), and may include related amenities, such as pools, clubhouses, courtyards, common areas, fitness facilities, dog parks, indoor and outdoor recreation areas, 9 South and Hollis LoSo/24062-20-060/20220322 other amenity and gathering spaces, and parking garages. Single family homes are prohibited; townhomes, duplexes or other units with yards are prohibited unless approved in writing by DEQ in advance. ii. “Office” defined as the provision of business or professional services. iii. “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. iv. “Restaurant” defined as a commercial business establishment that prepares and serves food and beverages to patrons. v. “Recreation” defined as indoor and outdoor exercise-related, physically focused, or leisure-related activities, whether active or passive, and the facilities for same, including, but not limited to, studios, swimming pools, sports-related courts and fields, open space, greenways, parks, playgrounds, walking paths, and picnic and public gathering areas. vi. “Parking” defined as the temporary accommodation of motor vehicles in an area designed for same. vii. “Commercial” defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee. b. Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an Environmental Management Plan (“EMP”) approved in writing by DEQ in advance (and revised to DEQ’s written satisfaction prior to each subsequent redevelopment phase) that is consistent with all the other land use restrictions and 10 South and Hollis LoSo/24062-20-060/20220322 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. demolition of existing buildings, if applicable; ii. issues related to known or potential sources of contamination, including without limitation those resulting from contamination identified in paragraphs 3 and 4 above; 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 and DEQ approval of both fill soil before import to the Brownfields Property and the disposition of all soil excavated from the Brownfields Property during redevelopment; c. Within 90 days after each one-year anniversary of 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 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 11 South and Hollis LoSo/24062-20-060/20220322 VI: Work to be Performed above; ii. soil grading and cut and fill actions; iii. methodology(ies) employed for field screening, sampling and laboratory analysis of environmental media; iv. stockpiling, containerizing, decontaminating, treating, handling, laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected or confirmed to be contaminated with regulated substances; and v. removal of any contaminated soil, water or other contaminated materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all legally required manifests shall be included). d. Groundwater at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ along with any measures DEQ deems necessary to ensure that the Brownfields Property will be suitable for the uses specified in subparagraph 12.a. above while fully protecting public health and the environment. Should groundwater be encountered or exposed during any activity on the Brownfields Property, it shall be managed in accordance with the DEQ-approved EMP outlined in subparagraph 12.b., or a plan approved in writing in advance by DEQ. e. No activity that disturbs soil on the Brownfields Property may occur unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in subparagraph 12.a. above while fully protecting public 12 South and Hollis LoSo/24062-20-060/20220322 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 above in subparagraph 12.b. f. No use of the Brownfields Property may occur until the then owner of the Brownfields Property conducts representative final grade soil sampling, pursuant to a plan approved in writing by DEQ, of any area that is not covered by building foundations, sidewalks, or asphaltic or concrete parking areas and driveways. g. Soil may not be removed from, or brought onto, the Brownfields Property without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless conducted in accordance with an approved EMP as outlined above in subparagraph 12.b. h. No enclosed building may be constructed on the Brownfields Property and no existing building, defined as those depicted on the plat component of the Notice of Brownfields Property referenced in paragraph 16 below, may be occupied until DEQ determines in writing that: i. the building is or would be protective of the building’s users and public 13 South and Hollis LoSo/24062-20-060/20220322 health from the risk of vapor intrusion based on site assessment data, or a site-specific risk assessment approved in writing by DEQ; or ii. a vapor intrusion mitigation system (VIMS) has been: 1. designed to mitigate the intrusion of subsurface vapors into building features in accordance with the most recent and applicable DWM Vapor Intrusion Guidance, Interstate Technology & Regulatory Council (ITRC) guidance, and American National Standards Institute (ANSI)/American Association of Radon Scientists and Technologists (AARST) standards, and that a professional engineer licensed in North Carolina, as evidenced by said engineer’s professional seal, is satisfied that the design is fully protective of public health, and shall include a performance monitoring plan detailing methodologies and schedule, both of which are subject to prior written DEQ approval; and 2. installed and an installation report is submitted for written DEQ approval that includes as-built diagrams, photographs, and a description of the installation, with said engineer’s professional seal confirming that the engineer is satisfied that the system was installed per the DEQ approved design. If any deviations from the system design were necessary during installation, then the report shall include details on said deviations, as well as the engineer’s seal certifying the VIMS, as installed, was installed in such a manner so as to be fully protective of public health. 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 14 South and Hollis LoSo/24062-20-060/20220322 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. The owner of any portion of the Brownfields Property where any existing, or subsequently 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. 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 fuel or other fluids customarily used in vehicles, landscaping equipment and emergency generators. iii. as constituents of products and materials customarily used and stored in high-density residential, office, retail, restaurant, recreation, parking, and, with written DEQ approval, other commercial uses, 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, 15 South and Hollis LoSo/24062-20-060/20220322 kept in their original packaging or containers (that is, not used or repackaged) and later removed from the Brownfields Property in the original packaging or containers. l. 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 XVII (Notices and Submissions), though financial figures and other confidential information related to the conveyance may be redacted to the extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records Law. The owner may use the following mechanisms to comply with the obligations of this paragraph: (i) If every lease or 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 XVII (Notices 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 XVII. m. During January of each year after the year in which the Notice referenced below in paragraph 16 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 16 South and Hollis LoSo/24062-20-060/20220322 the land use restrictions are being complied with. If the property is transferred, the grantor shall submit a LURU (as outlined above) which covers the period of time they owned the property. The submitted LURU shall state the following: i. the Brownfields Property address, and the name, mailing address, telephone number, 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 a joint LURU is submitted, acquired any part of the Brownfields Property during the previous calendar year; ii. the transferee’s name, mailing address, telephone number, and contact person’s e-mail address, if said owner, or each of the owners on whose behalf a joint LURU is submitted, 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 12.h. above are performing as designed, and whether the uses of the ground floors, including any tenant renovations, of any buildings containing such vapor barrier and/or mitigation systems have changed, and, if so, how, and under which precautions so as not to interfere with the operation of said system. 13. The desired result of the above-referenced land use restrictions is to make the Brownfields Property suitable for the uses specified in this Agreement while fully protecting public health and the environment. 14. 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 17 South and Hollis LoSo/24062-20-060/20220322 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. VIII. ACCESS/NOTICE TO SUCCESSORS IN INTEREST 15. In addition to providing access to the Brownfields Property pursuant to subparagraph 12.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 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. 16. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields Property (“Notice”) for the Brownfields Property containing, inter alia, the land use restrictions set forth in Section VI (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 18 South and Hollis LoSo/24062-20-060/20220322 of this Agreement, Prospective Developer shall file the Notice 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 plat with notations indicating its recordation. 17. This Agreement shall be attached as Exhibit A to the Notice. 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 XVII (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 or 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 XVII (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 XVII. 19 South and Hollis LoSo/24062-20-060/20220322 18. 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. IX. DUE CARE/COOPERATION 19. The Prospective Developer shall exercise due care at the Brownfields Property with respect to the manner in which regulated substances are handled at the Brownfields Property and shall comply with all applicable local, State, and federal laws and regulations. The Prospective Developer agrees to cooperate fully with any assessment or remediation of the Brownfields Property by DEQ and further agrees not to interfere with any such assessment or remediation. In the event the Prospective Developer becomes aware of any action or occurrence which causes or threatens a release of contaminants at or from the Brownfields Property, the Prospective Developer shall immediately take all appropriate action to prevent, abate, or minimize such release or threat of release, shall comply with any applicable notification requirements under NCGS § 130A-310.1 and 143-215.85, Section 103 of CERCLA, 42 USC § 9603, and/or any other law, and shall immediately notify the DEQ Official referenced in subparagraph 31.a. below of any such required notification. X. CERTIFICATION 20. By entering into this Agreement, the Prospective Developer certifies that, without DEQ approval, it will make no use of the Brownfields Property other than those uses defined above in paragraph 12.a. of this Agreement. 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 20 South and Hollis LoSo/24062-20-060/20220322 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. XI. DEQ’S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS 21. Unless any of the following apply, Prospective Developer shall not be liable to DEQ, and DEQ covenants not to sue Prospective Developer, for remediation of the Brownfields Property except as specified in this Agreement: a. The Prospective Developer fails to comply with this Agreement. b. The activities conducted on the Brownfields Property by or under the control or direction of the Prospective Developer increase the risk of harm to public health or the environment, in which case Prospective Developer shall be liable for remediation of the areas of the Brownfields Property, remediation of which is required by this Agreement, to the extent necessary to eliminate such risk of harm to public health or the environment. 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 21 South and Hollis LoSo/24062-20-060/20220322 demonstrate compliance with this Agreement or fails to disclose relevant information about contamination at the Brownfields Property. e. New information indicates the existence of previously unreported contaminants or an area of previously unreported contamination on or associated with the Brownfields Property that has not been remediated to unrestricted use standards, unless this Agreement is amended to include any previously unreported contaminants and any additional areas of contamination. If this Agreement sets maximum concentrations for contaminants, and new information indicates the existence of previously unreported areas of these contaminants, further remediation shall be required only if the areas of previously unreported contaminants raise the risk of the contamination to public health or the environment to a level less protective of public health and the environment than that required by this Agreement. f. The level of risk to public health or the environment from contaminants is unacceptable at or in the vicinity of the Brownfields Property due to changes in exposure conditions, including (i) a change in land use that increases the probability of exposure to contaminants at or in the vicinity of the Brownfields Property or (ii) the failure of remediation to 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. 22 South and Hollis LoSo/24062-20-060/20220322 h. The Prospective Developer fails to file a timely and proper Notice of Brownfields Property under NCGS § 130A-310.35. 22. Except as may be provided herein, DEQ reserves its rights against Prospective Developer as to liabilities beyond the scope of the Act. 23. 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. 24. Consistent with NCGS § 130A-310.33, the liability protections provided herein, and any statutory limitations in paragraphs 21 through 23 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. XII. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE 25. In consideration of DEQ’s Covenant Not To Sue in Section XI 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. XIII. PARTIES BOUND 26. This Agreement shall apply to and be binding upon DEQ, and on the Prospective 23 South and Hollis LoSo/24062-20-060/20220322 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. XIV. DISCLAIMER 27. 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. 28. Except for the land use restrictions set forth in paragraph 12.a 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. XV. DOCUMENT RETENTION 29. 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 24 South and Hollis LoSo/24062-20-060/20220322 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. XVI. PAYMENT OF ENFORCEMENT COSTS 30. If the Prospective Developer fails to comply with the terms of this Agreement, including, but not limited to, the provisions of Section VI (Work to be Performed) and Section VII (Land Use Restrictions), it shall be liable for all litigation and other enforcement costs incurred by DEQ to enforce this Agreement or otherwise obtain compliance. XVII. NOTICES AND SUBMISSIONS 31. Unless otherwise required by DEQ or a Party notifies the other Party in writing of a change in contact information or delivery method, all notices and submissions pursuant to this Agreement shall be sent by prepaid first-class U.S. mail or courier service, as follows: 25 South and Hollis LoSo/24062-20-060/20220322 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: Adam Gooch (or successor in function) KA LoSo Holdings LLC 601 Thirteenth Street NW, Suite 300 North Washington, DC, 20005 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. XVIII. EFFECTIVE DATE 32. 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 NCGS § 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 to invalidate its signature on this Agreement. XIX. TERMINATION OF CERTAIN PROVISIONS 33. If any Party believes that any or all of the obligations under Section 26 South and Hollis LoSo/24062-20-060/20220322 VIII(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). XX. CONTRIBUTION PROTECTION 34. With regard to claims for contribution against Prospective Developer in relation to the subject matter of this Agreement, Prospective Developer is entitled to protection from such claims to the extent provided by NCGS § 130A-310.37(a)(5)-(6). The subject matter of this Agreement is all remediation taken or to be taken and response costs incurred or to be incurred by DEQ or any other person in relation to the Brownfields Property. 35. 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. 36. 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. XXI. PUBLIC COMMENT 37. 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 27 South and Hollis LoSo/24062-20-060/20220322 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: KA LoSo Holdings LLC By: ____________________________________________________________________________ Adam Gooch Date Senior Vice President USGS The National Map: National Boundaries Dataset, 3DEP Elevation Program, Geographic Names Information System, National Hydrography Dataset, National Land Cover Database, National Structures Dataset, and National Transportation Dataset; USGS Global Ecosystems; U.S. Census Bureau TIGER/Line data; USFS Road Data; Natural Earth Data; U.S. Department of State Humanitarian Information Unit; and NOAA National Centers for Environmental Information, U.S. Coastal Relief Model. Data refreshed May, 2020. SITE LOCATION MAP SOUTH AND HOLLIS LOSO SOUTH BOULEVARD AND HOLLIS ROAD CHARLOTTE, NORTH CAROLINA DATE: 3-8-21 JOB NO: AKR-006 REVISION NO: 0 FIGURE. 1 2923 South Tryon Street - Suite 100 Charlotte, North Carolina 28203 704-586-0007 (p) 704-586-0373 (f) License # C-1269 / # C-245 Geology TITLE PROJECT 0 2,000 4,000 SCALE IN FEET Path: \\HHFS01\Redirectedfolders\sperry\My Documents\ArcGIS\PROJECTS\AKR-006\Figure 1.mxdN U.S.G.S. QUADRANGLE MAP CHARLOTTE EAST, NORTH CAROLINA 2013 QUADRANGLE 7.5 MINUTE SERIES (TOPOGRAPHIC) SITE EXHIBIT 1 24062-20-060/South and Hollis (20220322) 1 Exhibit 2 The most recent environmental sampling at the Brownfields Property reported in the Environmental Reports occurred on April 23, 2021. 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) tert-Butyl Alcohol TMW-1 4/21/2021 6.2 J NE TMW-3 7.9 J sec-Butylbenzene TMW-2 4/21/2021 0.60 J NE tert-Butylbenzene TMW-2 4/21/2021 0.23 J NE bis(2- ethylhexyl)phthalate TMW-5 4/21/2021 2.2 J NE Acetophenone TMW-1 4/21/2021 1.1 R-05, J NE TMW-3 0.86 R-05, J Dibenzofuran TMW-1 4/21/2021 1.0 J NE Di-n-butylphthalate TMW-3 4/21/2021 0.88 J NE TMW-4 / GW- DUP 0.77 J / 0.63 J Diethylphthalate TMW-1 4/21/2021 1.3 J NE TMW-3 1.6 J TMW-4 0.62 J 2-Methylnaphthalene GW-DUP 4/21/2021 0.073 J NE Phenol TMW-1 4/21/2021 4.1 J NE Tetrachloroethylene TMW-6 4/21/2021 2.1 0.7 NE - Not Established 24062-20-060/South and Hollis (20220322) 2 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 June 2021 version): Groundwater Contaminant with Potential for Vapor Intrusion Sample Location Date of Sampling Concentration Exceeding Screening Level (µg/L) Residential VI Screening Level1 (µg/L) tert-Butyl Alcohol TMW-1 4/21/2021 6.2 J NE TMW-3 7.9 J sec-Butylbenzene TMW-2 4/21/2021 0.60 J NE tert-Butylbenzene TMW-2 4/21/2021 0.23 J NE bis(2-ethylhexyl)phthalate TMW-5 4/21/2021 2.2 J NE Chloroform TMW-4 / GW-Dup 4/21/2021 1.1 J / 1.1 J 0.81 TMW-5 2.2 Acetophenone TMW-1 4/21/2021 1.1 R-05, J NE TMW-3 0.86 R-05, J Dibenzofuran TMW-1 4/21/2021 1.0 J NE Di-n-butylphthalate TMW-3 4/21/2021 0.88 J NE TMW-4 / GW-DUP 0.77 J / 0.63 J Diethylphthalate TMW-1 4/21/2021 1.3 J NE TMW-3 1.6 J TMW-4 0.62 J 2-Methylnaphthalene GW-DUP 4/21/2021 0.073 J NE Phenol TMW-1 4/21/2021 4.1 J NE 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-6 lifetime incremental cancer risk. NE – Not Established GW-DUP is a duplicate for TMW-4. J – Compound was detected above the laboratory method detection limit, but below the laboratory reporting limit resulting in a laboratory estimated concentration. R-05 – Laboratory fortified blank duplicate relative percent difference is outside of control limits. Reduced precision is anticipated for the laboratory reported value. 24062-20-060/South and Hollis (20220322) 3 SOIL Soil contaminants in milligrams per kilogram (the equivalent of parts per million), the screening levels for which are derived from the Preliminary Residential Health- Based Soil Remediation Goals of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section (June 2021 version): Soil Contaminant Sample Location Depth (ft) Date of Sampling Concentration Exceeding Screening Level (mg/kg) Residential Screening Level1 (mg/kg) p-Isopropyltoluene SB-2 4-5 4/19/2021 0.00081 J NE Pentachlorophenol SB-2 4-5 4/19/2021 6.3 1.0 Arsenic2 SB-2 4-5 4/19/2021 1.5 MS-07 0.68 SB-3 0-2 4/19/2021 1.1 SB-4 0-2 4/20/2021 1.9 SB-6 0-4 4/19/2021 2.0 SB-7 0-4 4/20/2021 2.0 SB-8 0-2 4/20/2021 1.1 SB-10 0-2 4/20/2021 2.1 SB-11 0-2 4/19/2021 1.9 SB-12 0-2 4/19/2021 1.5 COMP-1 0-5 4/20/2021 2.1 Hexavalent Chromium SB-5 / SB-DUP 4-5 4/20/2021 0.727 J / 1.42 0.31 SB-10 0-2 4/20/2021 0.746 J SB-12 0-2 4/19/2021 0.446 J COMP-1 0-5 4/20/2011 0.624 J 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 of arsenic in soils are within background concentrations for the area. NE – Not Established SB-DUP is a duplicate for SB-5. J – Compound was detected above the laboratory method detection limit, but below the laboratory reporting limit resulting in a laboratory estimated concentration. MS-07 – Matrix spike recovery is out of control limits. Analysis is in control based on laboratory blank recovery. 24062-20-060/South and Hollis (20220322) 4 SOIL GAS Soil gas contaminants in micrograms per cubic meter, the screening levels for which are derived from Residential Vapor Intrusion Screening Levels of the Division of Waste Management (June 2021version): Soil Gas Contaminant Sample Location Date of Sampling Concentration Exceeding Screening Level (µg/m3) Residential Screening Limit1 (µg/m3) Benzene SG-7 4/22/2021 13.0 J 12 4-Ethyltoluene SG-2 / SG-DUP 4/23/2021 11.8 / 9.97 NE SG-5 4/22/2021 1.44 J SG-6 1.10 J SG-10 1.81 J Naphthalene SG-2 / SG-DUP 4/23/2021 6.1 / 3.74 2.8 1,1,2,2-Tetrachloroethane SG-7 4/22/2021 30.3 1.6 Trichlorofluoromethane SG-1 4/23/2021 2.06 J NE SG-5 4/22/2021 2.94 SG-7 41.1 J 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 – Not Established J – Compound was detected above the laboratory method detection limit, but below the laboratory reporting limit resulting in a laboratory estimated concentration. EXHIBIT C Legal Description South and Hollis LoSo Brownfields Property Brownfields Project Number 24062-20-060 BEING all that certain tract or parcel of land located within the City of Charlotte, Mecklenburg County, North Carolina, and fronting on South Boulevard and on Hollis Road and on Weston Street, and being all of Tract 1 as shown on that certain map of survey and combination plat entitled “Akridge Recombination Plat” recorded in Map Book 70 Page 47 of the Mecklenburg County Registry, said tract or parcel of land being also shown on that certain map of survey entitled “EXHIBIT B to the Notice of Brownfields Property-SURVEY PLAT, South and Hollis LoSo” prepared by Andrew G. Zoutewelle, North Carolina Professional Land Surveyor No. L- 3098, dated October 4, 2021, said tract or parcel being more particularly described as follows: BEGINNING at an existing iron rebar (“Beginning Point”) located on the northerly right-of-way margin of Hollis Road, said right-of-way having a width of 50 feet as shown on that certain plat recorded in Map Book 5 Page 269 of the Mecklenburg County Registry, said Beginning Point being also located at the southeasterly corner of Lot B as shown on that certain plat recorded in Map Book 7 Page 135 of the Mecklenburg County Registry, said Beginning Point being also located North 88-19-12 East 87.08 feet from an existing iron rebar located on the southerly right-of-way margin of the said Hollis Road at the common corner between LCRE 3609 South Blvd., LLC, as described in Deed Book 32382 Pages 651 through 655, and Crosland Greens, LLC, as described in Deed Book 23287 Page 544 all of the Mecklenburg County Registry, said Beginning Point being also located North 61-43-21 West 83.27 feet from an existing iron rebar (“Commencement Point”) located at the intersection of the northerly right-of- way margin of the said Hollis Road and the westerly right-of-way margin of Weston Street, said right-of- way having a width of 50 feet as shown on that certain plat recorded in Map Book 7 Page 135 of the Mecklenburg County Registry, said Commencement Point having North Carolina State Plane coordinates of Northing = 530,289.36 feet and Easting = 1,440,740.81 feet as based on the Epoch 2010.0000 realization of the North American Horizontal Datum of 1983, said datum having a combined factor of 0.9998455753 to convert from the ground distances called herein, and running thence from said POINT AND PLACE OF BEGINNING along the northerly right-of-way margin of the said Hollis Road the following two (2) calls: (1) following along the arc of a circular curve to the right having a radius of 878.38 feet and an arc length of 84.96 feet (chord bearing North 56-36-55 West 84.93 feet) to a point and (2) North 50-20-06 West (passing an existing iron rebar at 289.06 feet) a total distance of 318.02 feet to a point on the old right-of-way centerline of South Boulevard, said right-of-way having a width of 60 feet as shown on that certain plat recorded in Map Book 5 Page 269 of the Mecklenburg County Registry; thence along the old centerline of the said South Boulevard North 25-19-42 East 295.87 feet to a point; thence along the common boundary line with 3411 S. Blvd., L.L.C., as described in Deed Book 33124 Page 607 of the Mecklenburg County Registry the following five (5) calls: (1) South 49-58-18 East (passing a new iron rebar at 34.83 feet and passing a new iron rebar at an additional 202.67 feet) a total distance of 249.50 feet to a point, (2) South 25-39-42 West 48.92 feet to an existing iron rebar, (3) South 51-50-57 East 74.88 feet to an existing iron rebar, (4) North 27-00-54 East 36.57 feet to an existing iron rebar and (5) South 67-32-13 East 144.52 feet to an existing iron pipe; thence along the westerly right-of- way margin of the aforesaid Weston Street the following two (2) calls: (1) South 22-25-44 West 79.76 feet to an existing iron rebar and (2) South 22-04-03 West 80.01 feet to an existing iron rebar; thence along the common boundary line with the aforesaid Lot B as shown on the said plat recorded in Map Book 7 Page 135 of the Mecklenburg County Registry the following two (2) calls: (1) North 67-30-13 West 84.42 feet to an existing iron rebar and (2) South 21-48-50 West 137.99 feet to the point and place of BEGINNING, containing 2.8167 acres, more or less, as shown on the aforesaid map of survey prepared by Andrew G. Zoutewelle dated October 4, 2021.