10036_South End Transit_recorded NBP_20110713

Property Owner: Cherokee Southline, LLC
Recorded in Book __ , Page __
Associated plat recorded in Plat Book jJ_, Page 'l, \ 5
FOR REGISTRATION J. DAVID GRANBERRY REGISTER OF DEEDS MECKLENBURG COUNTY NC 2011 JUL 13 03:54:01 PM BK:26603 PG:321-369 FEE:$155.00
t1IU;lilii11
NOTICE OF BROWNFIELDS PROPERTY
This documentary component of a Notice ofBrownfields Property ("Notice"), as well as
the plat component, have been filed this r•,•\.. day of )1,.\T , 201_t by Cherokee
Southline, LLC (hereinafter "Prospective Developer").
The Notice concerns contaminated property.
A copy of this Notice certified by the North Carolina Department of Environment and
Natural Resources (hereinafter "DENR") 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 (hereinafter "NCGS"), Section (hereinafter"§") 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 (hereinafter the "Brownfields Property") being addressed under the Brownfields
Property Reuse Act of 1997, NCGS § 130A, Article 9, Part 5 (hereinafter the "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 DENR's approval of
the Notice or Prospective Developer's entry into the Brownfields Agreement required by the
Act, whichever is later. Pursuant to NCGS § 130A-310.35(c), the copy of the Notice certified
by DENR 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 Prospective Developer's name.
The Brownfields Property consists of parcels comprising approximately 22.41 acres in
Charlotte, Mecklenburg County, North Carolina with the following addresses: 2205, 2303, 2309,
2321, 2401, 2405, 2415/2418 and 2517 Dunavant Street; 2235 Hawkins Street; 2300, 2316, 2400,
2500 and 2508/2522 South Boulevard; and 140 Remount Road. The parcels have been in use since
as early as the late 1930s for residential and various commercial, retail and light industrial uses. Soil
and groundwater contamination exist on the Brownfields Property as a result of these past uses.
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Prospective Developer intends to redevelop the Brownfields Property for mixed commercial, high
density residential and recreational use, with associated parking and landscaped areas.
The Brownfields Agreement between Prospective Developer and DENR is attached
hereto as Exhibit A. It sets forth the use that may be made of the Brownfields Property and
the measures to be taken to protect public health and the environment, and is required by
NCGS § 130A-310.32.
Attached hereto as Exhibit B is a reduction, to 8 112" x 11 ", of the survey plat required by
NCGS § 130A-310.35(a). It is a plat of areas designated by DENR that has been prepared and
certified by a professional land surveyor and that meets the requirements ofNCGS § 47-30. That
plat contains the following information required by NCGS § 130A-310.35(a):
(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. The following tables also set forth the type and quantity of such
substances:
Table A
Groundwater contaminants (in micrograms per liter, the equivalent of parts per billion),
the standards for which are in Title 15A of the North Carolina Administrative Code, Subchapter
2L, Rule .0202:
Date of Max. Cone. Groundwater Sample Max. Date of Most Recent Standard above Std. Contaminant Location Concentrati Most Recent Concentration (µg/L)
on Sampling (µg/L) Sampling (µg/L)
Benzene DSCA 10/21/04 2.1 12/1105 <1.0
MW-lA 1.0 DSCA 1/25/08 2.3 1125108 2.3
MW-6
1,2-Dichoroethane PS-GW-1 10/23/06 1 * * 0.38
Di-isopropyl ether DSCA 1125/08 170 1/25/08 170 70
MW-6
Tetrachoroethene PS-GW-1 10/23/06 1.2 * *
PS-GW-3 10/23/06 1.6 * *
2316 Well 10/23/06 2.7 * *
DSCA 1125/08 60 1125/08 60
MW-lA
DSCA 3/18/05 150 1115/08 32 0.7
MW-2
DSCA 11/30/05 52 1125/08 51
2
Date of Max. Cone. Groundwater Sample Max. Date of Most Recent Standard above Std. Most Recent Concentration Contaminant Location Concentrati (µg/L)
on Sampling (µg/L) Sampling (µg/L)
MW-3
DSCA 1/25/08 83 1125/08 83
MW-4
Tetrachoroethene DSCA 12/1105 9.7 1125/08 7.7
DW-1 0.7
MW-5 l/3/08 2.1 * *
Trichloroethene PS-GW-1 10/23/06 84 * *
PS-GW-3 10/23/06 110 * *
OA-GW-1 10/20/06 5.1 * *
OA-GW-2 10/20/06 44 * *
MD-GW-1 10/20/06 100 * *
MD-GW-2 10/20/06 78 * *
WS-GW-6 10/23/06 3.9 * *
WS-GW-8 10/23/06 3.0 * *
DSCA 3/18/05 8 11130/05 <1
MW-1
DSCA 3/18/05 12 11130/05 2.5 2.8
MW-2
DSCA 1/4/08 40 1/25/08 53
MW-3
DSCA 11130/05 23 1/25/08 3.6
MW-4
DSCA 1125/08 200 1125/08 200
DW-1
MW-2 l/3/08 5 * *
MW-4 113/08 26 * *
MW-5 113/08 160 * *
* Indicates temporary well or well sampled only one time.
Table B
Soil contaminants (in milligrams per kilogram, the equivalent of parts per million), the
standards for which are derived using the Guidelines of the Inactive Hazardous Sites Branch of
DENR's Superfund Section:
Date of Max. Maximum
Soil Sample Depth Concentration Concentration Standard
Contaminant Location Sampling above Std. (mg/kg)
(mg/kg)
3
Date of Max. Maximum
Soil Sample Depth Concentration Concentration Standard
Contaminant Location Sampling above Std. (mg/kg)
(mg/kg)
Benzo( a )anthracene WS-HA-10 0-2' 10/17/06 2.1 0.022
Benzo(a)pyrene WS-HA-10 0-2' 10/17/06 1.9 0.022
Benzo(b )fluoranthene WS-HA-10 0-2' 10/17 /06 2.1 0.22
Dibenzo( a,h)anthracene WS-HA-10 0-2' 10/17 /06 0.31 0.022
Chromium RR-SB-3 2-4' 10/16/06 47 44
Total Petroleum RR-SB-1 0.25 -2' 10/16/06 370 40
Hydrocarbons -DRO
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 DENR (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
DENR shall be understood to include any successor in function. The restrictions are hereby
imposed on the Brownfields Property, and are as follows:
1. No use may be made of the Brownfields Property other than mixed commercial and
high density residential use, with associated parking and landscaped areas, without DENR's
prior written approval. For purposes of this restriction, the following definitions apply:
a. "Commercial" refers to wholesale, retail, office and hotel use.
b. "High Density Residential" refers to 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.
c. "Parking" refers to an area designed and used for the temporary
accommodation of motor vehicles.
d. "Landscaped areas" refers to outdoor areas not covered by impervious or
hard pervious surfaces, such as asphalt or concrete, on which are placed and maintained trees,
shrubs and groundcover, or fences, walls and /or earthen berms.
i. "Impervious": prevents the absorption of surface water into
4
underlying soil.
ii. "Hard Pervious": allows absorption of surface water into the soil but
has a hard surface formed or cast in place that protects land users from exposure to any
contaminants in underlying soil. Pervious concrete and pervious tennis court materials are
examples.
2. Unless compliance with this Land Use Restriction is waived in writing in advance by
DENR in relation to particular buildings, no use of the Brownfields Property may occur prior
to demolition of all buildings on the Brownfields Property depicted on the plat component of
this Notice in accordance with applicable legal requirements, including without limitation
those related to lead and asbestos abatement that are administered by the Health Hazards
Control Unit within the Division of Public Health of the North Carolina Department of Health
and Human Services.
3. No building may be constructed on the Brownfields Property until:
a. DENR determines in writing, based on submittals from the building's
proponent, that the building's users, and public health and the environment, would not be at
risk from the Brownfields Property's volatile contaminant plume; or
b. vapor mitigation measures approved in writing by DENR in advance are
installed to the satisfaction of a professional engineer licensed in North Carolina, as evidenced
by said engineer's seal, and photographs illustrating the installation and a brief narrative
describing it are submitted to DENR and deemed satisfactory in writing by that agency.
4. Underground water at the Brownfields Property may not be used for any purpose
without the prior written approval of DENR.
5. No part of the Brownfields Property that DENR determines constitutes a discrete
portion may be occupied by businesses or residences prior to compliance with a., b. or c. of this
Land Use Restriction 5 with respect to areas of the discrete portion not covered by an
impervious or hard pervious surface. Regardless of whether a., b. or c. is chosen, soil at the
Brownfields Property may be disturbed only for the purpose of constructing buildings and
related structures (e.g., in connection with grading, installing utilities and other infrastructure,
building below grade parking and pouring footers), and only so long as affected soil is handled
in compliance with a Soil Management Plan approved in advance, in writing, by DENR.
a. Excavation of the soil in the subject areas to a depth not less than 12 inches,
provided that the disposition of excavated soil is carried out in accordance with the DENR-
approved Soil Management Plan. Unless the DENR-approved Soil Management Plan allows
an alternative, geotextile fabric acceptable to DENR shall be placed at the base of the
excavation and fill certified as clean by DENR shall be used to bring the excavation to grade.
The areas containing clean fill shall be surveyed to DENR's written satisfaction, with
permanent survey pins demarcating the corners. Said survey shall be recorded as an
amendment of the plat component of this Notice. A copy of the survey, reflecting its
5
recordation, shall be submitted to DENR within 15 days post-recordation.
b. Pursuant to the DENR-approved Soil Management Plan, assessment of
potential contaminants in the upper two (2) feet of soil in these areas, sampling for volatile and
semi-volatile compounds, and metals constituting hazardous substances under 42 U.S.C.
Section 9601(14) using "SW-846" or other methods approved by the U.S Environmental
Protection Agency. Upon written determination by DENR, based upon the sampling results,
that the areas in question are suitable for approved uses, the areas shall be demarcated with
survey pins and surveyed. Said survey, with the subject areas designated "Suitable for the
uses specified in Land Use Restriction l," shall be recorded as an amendment of the plat
component of this Notice. A copy of the survey, reflecting its recordation, shall be submitted to
DENR within 15 days post-recordation.
c. Pursuant to the DENR-approved Soil Management Plan, covering of the
subject areas with raised permanent planters, filled with soil certified as clean by DENR, using
geotextile fabric to demarcate the ground surface. The planters may not be removed other
than in compliance with any conditions DENR imposes.
6. After issuance of a Certificate of Occupancy in any part of the Brownfields Property
that DENR determines constitutes a discrete portion, said portion shall be surveyed to DENR's
written satisfaction, the survey shall be recorded as an amendment to the plat component of
this Notice (with a copy of the as-recorded survey submitted to DENR within 15 days
thereafter), and soil in said portion not addressed by Land Use Restriction 5 above may not be
exposed without a minimum of seven (7) business days advance written notice to DENR, unless
DENR states otherwise in writing in advance. At the time such soil is exposed, DENR may
inspect and sample, or require sampling of, the exposed soil for contaminants. If soil
contamination is discovered that DENR determines would likely contaminate groundwater
even if capped, or that may pose an imminent threat to public health or the environment if
exposed, as much soil as DENR reasonably requires shall be removed and disposed of in
accordance with applicable law, and any other actions that DENR reasonably requires to make
the Brownfields Property suitable for the uses specified in Land Use Restriction 1 above while
fully protecting public health and the environment shall be taken. If soil contamination is
discovered that DENR determines would not likely contaminate groundwater if capped, or
likely pose an imminent threat to public health or the environment if exposed, as much soil as
DENR reasonably requires shall be removed and disposed of in accordance with applicable
law or capped to the written satisfaction of DENR.
7. No mining may be conducted on or under the Brownfields Property, including,
without limitation, extraction of coal, oil, gas or any other minerals or non-mineral substances.
8. No basements may be constructed on the Brownfields Property unless they are, as
determined in writing by DENR, vented in conformance with applicable building codes.
9. None of the contaminants known to be present in the environmental media at the
Brownfields Property, including those listed in Tables A and B above, may be used or stored at
6
the Brownfields Property without the prior written approval of DENR, except in de minimis
amounts for cleaning and other routine housekeeping activities.
10. The Brownfields Property may not be used as a park or for sports of any kind,
including, but not limited to, golf, football, soccer and baseball, absent prior written notice to
DENR of such intent and compliance with land use restriction 5.a. or 5.b. above to DENR's
written satisfaction.
11. The Brownfields Property may not be used as a playground, or for child care
centers or schools, absent prior written notice to DENR of such intent and compliance with
land use restriction 5.a. or 5.b. above to DENR's written satisfaction.
12. The owner of any portion of the Brownfields Property where any existing or later
DENR-approved monitoring well is damaged shall be responsible for repair of any such wells
to DENR's written satisfaction and within a time period acceptable to DENR.
13. Neither DENR, 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 DENR, 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.
14. During January each year, 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
DENR (except that a joint LURU may be submitted for multiple owners by a duly constituted
owners' association), and to the chief public health and environmental officials of
Mecklenburg County, certifying that, as of said January 1st, this Notice remains recorded at
the Mecklenburg County Register of Deeds office and thatthe Land Use Restrictions are being
complied with, and stating:
a. 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; and
b. 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.
For purposes of the land use restrictions set forth above, the DENR point of contact shall be
the DENR official referenced in paragraph 34.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
7
Exhibit A to the Notice
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
IN THE MATTER OF: Cherokee Southline, LLC
UNDER THE AUTHORITY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, N.C.G.S. § BOA-310.30, et~.
NCBP Project No. 10036-06-60
) BROWNFIELDS AGREEMENT re:
) Southline Transit-Oriented Development
) South Boulevard, Remount Road,
) Hawkins and Dunavant Streets
) Charlotte, Mecklenburg County
I. INTRODUCTION
This Brown:fields Agreement ("Agreement") is entered into by the North Carolina
Department of Environment and Natural Resources ("DENR") and Cherokee Southline, LLC
(collectively the "Parties") pursuant to the Brown:fields Property Reuse Act of 1997, N.C.G.S. §
BOA-310.30, et~· (the "Act"), and constitutes an order within the meaning ofN.C.G.S. §
130A-22.
Cherokee Southline, LLC is a manager-managed North Carolina limited liability
company whose legal address is 111 East Hargett Street, Suite 300, Raleigh, North Carolina,
27601. This Agreement concerns a 22.41-acre assemblage in Charlotte, North Carolina that
Cherokee Southline, LLC proposes to put to mixed commercial, high density residential and
recreational use, with associated parking and landscaped areas. Fifteen contiguous parcels were
assembled for the project; the right-of-way easement of the City of Charlotte's light rail line
separates, in a north-south direction, parcels facing Dunavant Street from those facing South
Boulevard. A map showing the location of the subject property is attached hereto as Exhibit 1;
Exhibit 2 is a map that shows addresses and names associated with the fifteen parcels.
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 (DENR's Covenant Not to Sue
Southline BF A
and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
potential liability of Cherokee Southline, LLC for contaminants at the property which is the
subject of this Agreement.
The Parties agree that Cherokee Southline, LLC's entry into this Agreement, and the
actions undertaken by Cherokee Southline, LLC in accordance with the Agreement, do not
constitute an admission of any liability by Cherokee Southline, LLC.
The resolution of this potential liability, in exchange for the benefit Cherokee Southline,
LLC shall provide to DENR, 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 N.C.G.S. 130A, Article 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
1. "Property'' shall mean the Brownfields Property which is the subject of this
Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. "Prospective Developer" shall mean Cherokee Southline, LLC.
III. STATEMENT OF FACTS
3. The Property comprises 22.41 acres assembled from 15 parcels acquired in fourteen
transactions. Prospective Developer has committed itself to redevelopment of the Property for
no uses other than mixed commercial, high density residential and recreational use, with
associated parking and landscaped areas.
4. The Property was recently rezoned from industrial to "transit supportive -mixed" use.
It is bordered to the north by 2208/2212 Hawkins Street, also zoned "transit supportive -mixed"
and owned by Markey Enterprises, Inc., and by the former Sonoco Flexible Packaging Co., Inc.
Southline BF A 2
facility, a brownfields property at 2203 Hawkins Street owned by Hawkins Street Holdings,
LLC; to the northwest by the industrially zoned 2135 Dunavant Street, owned by Rush Family
LLC; to the south by Remount Road, across which lies land zoned industrial and retail and
owned by McLeod Addictive Disease Foundation, Inc.; to the east by South Boulevard, across
which lies land zoned retail, "transit supportive -mixed" and "mixed retail/residential" with
numerous owners; and to the west by Dunavant Street, across which lies land in varied
ownership that is zoned industrial (except 2418 Dunavant, which is used for parking).
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the "Environmental Reports," regarding the Property:
Title Prepared by Date of Report
Phase I Environmental Site Assessment -2205 ERM NC, PC November 2006
Dunavant Street (Pressley Services, Inc.)
Phase II Environmental Site Assessment -2205 ERM NC, PC December 2006
Dunavant Street (Pressley Services, Inc.)
Phase I Environmental Site Assessment-2235 The Schneider May2006
Hawkins Street (Murray Supply Company) Corporation
Phase I Environmental Site Assessment-2235 ERM NC, PC January 2008
Hawkins Street (Murray Supply Company)
Phase I Environmental Site Assessment-2303 ERM NC, PC November 2006 Dunavant Street (Ornamental Awnings)
Phase II Environmental Site Assessment -2303 ERM NC, PC December 2006 Dunavant Street (Ornamental Awnings)
Phase I Environmental Site Assessment -2235 The Schneider May2006
Hawkins Street (Murray Supply Company) Corporation
Phase I Environmental Site Assessment-2309 ERM NC, PC September 2007 Dunavant Street (Floral Trends)
Phase I Environmental Site Assessment-2321 ERM NC, PC February 2007 Dunavant Street (Southern Comfort)
Phase I Environmental Site Assessment-2401 ERM NC, PC November 2005 Dunavant Street (Quality Tile & Marble)
Phase II Environmental Site Assessment-2401 ERM NC, PC December 2006 Dunavant Street (Quality Tile & Marble)
Phase I Environmental Site Assessment -2405 ERM NC, PC June 2007 Dunavant Street (Gelbach Designs)
Southline BF A 3
Title Prepared by Date of Report
Phase I Environmental Site Assessment -2415/2418 ERM NC, PC October 2005 Dunavant Street (Pegram Parcel)
Phase II Environmental Site Assessment -ERM NC, PC December 2006 2415/2418 Dunavant Street (Pegram Parcel)
Phase I Environmental Site Assessment -251 7 ERM NC, PC January 2008 Dunavant Street ( Bell Parcel-Dunavant)
Phase I Environmental Site Assessment -140 ERM NC, PC November 2005 Remount Road (Bell Parcel-Remount)
Phase II Environmental Site Assessment -140 ERM NC, PC December 2006 Remount Road (Bell Parcel-Remount)
Phase I Environmental Site Assessment -2508/2522
South Boulevard ERM NC, PC December 2005
(Drycleaner/Gas Station)
Phase II Environmental Site Assessment -
2508/2522 South Boulevard ERM NC, PC December 2006
(Drycleaner/Gas Station)
Groundwater Sampling Results, Former Dryclean Shield Engineering, January 2006 Carolinas Site Inc.*
Report of Additional Soil Investigation, Former Shield Engineering, July 2007 Dryclean Carolinas Site Inc.*
Groundwater Sampling Results, Former Dryclean Hart & Hickman, January 2008 Carolinas Site P.C.*
Phase I Environmental Site Assessment -2500 ERM NC, PC October 2007 South Boulevard (Harris Tire)
Phase I Environmental Site Assessment -2500 ERM NC, PC November 2008 South Boulevard (Harris Tire)
Notice of UST Release to Soil at 140 Remount Road ERM NC, PC October 2007 (Bell Property)
Phase I Environmental Site Assessment -2400 ERM NC, PC November 2005 South Boulevard (Former McDonald's)
Phase II Environmental Site Assessment -2400 ERM NC, PC December 2006 South Boulevard (Former McDonald's)
Phase I Environmental Site Assessment -2316 ERM NC, PC May2006 South Boulevard (Georgia Carolina Products)
Phase II Environmental Site Assessment 2316 ERM NC, PC December 2006 South Boulevard (Georgia Carolina Products)
Phase I Environmental Site Assessment -2300 ERM NC, PC September 2006 South Boulevard (Welders Su_Qply)
Phase II Environmental Site Assessment-2300 ERM NC, PC December 2006 South Boulevard (Welders Supply)
UST Closure Report -2300 South Boulevard ERM NC, PC October 2007 (Welder Supply)
Southline BF A 4
Title Prepared by Date of Report
No Further Action Letter on UST Closure -2300 DENR-UST November 2007 South Boulevard (Welder Supply) Section (MRO)
UST Closure Letter (12,000 Gallon Heating Oil) -ERM NC, PC June 2008 140 Remount Rd. (Bell Property)
Phase ILSA (12,000 Gallon Heating Oil) -140 ERM NC, PC May2008 Remount Rd. (Bell Property)
UST Closure Report-Heating Oil and Previously
Closed-in-Place Mineral Oil USTs -2316 South ERM NC, PC May2008
Boulevard (Georgia-Carolina)
Hydraulic Lift Closure Report -2508 South Blvd. ERM NC, PC May2008 (DryClean Carolinas -Former Pep Boys Site)
Phase II Environmental Site Assessment Addendum ERM NC, PC May2008 -Cherokee Southline Project
Summary of Preliminary Vapor Intrusion ERM NC, PC May2008 Assessment -Cherokee Southline Project
*for N.C. Dry-Cleaning Solvent Cleanup Act Program
6. For purposes of this Agreement, DENR relies on the following representations by
Prospective Developer as to use and ownership of the Property (asbestos abatement and
demolition has been completed on all parcels, except that at 2500 South Boulevard):
a. 2205 Dunavant Street (purchased May 6, 2007): This parcel was developed
sometime between 1951 and 1956. A heating and cooling contractor known as Pressley Services
Inc. owned the parcel for approximately 10 years prior to Prospective Developer's purchase; the
tenant before that constructed pre-cast concrete meter boxes. The parcel comprises
approximately 1.2 acres, and contained one (1) building and gravel parking areas. The building
contained approximately 20,000 square feet and included office and storage space.
b. 2235 Hawkins Street (purchased May 30, 2007): This 2.1-acre parcel was
most recently the location of Murray Supply Company, a wholesale distributor of commercial
plumbing and residential kitchen and bathroom products. One (1) building, a storage yard and
parking lot were present. The parcel was first developed some time prior to 1968, and was
Southline BF A 5
occupied by Murray Supply Company from the mid-1970s through late 2006.
c. 2303 Dunavant Street (purchased December 12, 2006): This parcel comprises
approximately 1.3 acres, and contained two (2) buildings (including a small shed) and paved
parking areas. A firm known as "Ornamental Awnings" occupied the parcel from the early
1980s until Prospective Developer's purchase. It produced custom-made metal awnings, using
painting and sandblasting processes in its early years at the site until raw materials became
available in the sizes and colors desired. In the early 1980s, prior to Ornamental Awnings' use
of the parcel, Insulating Services Inc., a fire extinguisher construction and testing company,
operated there. Western Waterproofing Company Inc., which provided off-site repair,
restoration, and waterproofing of concrete and masonry structures, occupied the site from 1969
to 1979.
d. 2309 Dunavant Street (purchased August 29, 2007): Wholesale flower
distributor Floral Trends of North Carolina, Inc. had been operating on this 0.9-acre parcel since
the late 1990s. From 1989 to 1994 a firm known as "Berlins Inc. Cosmetics" occupied the
parcel. The parcel was vacant from 1984 to1989, and research has revealed nothing about its use
between 1979 and 1984. From 1969 to 1979 the parcel was occupied by the Randleman
Company, which dealt in wholesale phonograph records. From 1965 to 1969 an unknown tenant
was located at the site.
e. 2321 Dunavant Street (purchased May 16, 2007): This 0.7-acre parcel is
currently occupied by a commercial and industrial heating, ventilation and air conditioning
contractor that does business as "Southern Comfort." Southern Comfort has been leasing space
in an 11,200-square foot structure on the parcel since its construction in 1959. "Weathers
Furniture Warehouse" stored new furniture in the northern portion of the building before it went
Southline BF A 6
out of business in the early 1990s. At that time, Southern Comfort began leasing the entire
structure.
f. 2401 Dunavant Street (purchased May 30, 2007): This parcel comprises
approximately 0.7 acres, and contained one building and paved and gravel parking areas. The
building was constructed in 1963, contained approximately 4,000 square feet and includes office
space and a marble-cutting and storage shop. It was occupied by Quality Tile & Marble, Inc., a
manufacturer of natural stone countertops. The first documented tenant was a firm known as
''NIBCO Carolina," a valve and fitting manufacturer and supplier. That firm occupied the
facility from the early 1960s to the late 1970s. Subsequent tenants included Pritchard Paint and
Glass Company in 1979, M.W. Carr & Co., Incorporated in 1989, Hi-tech Vinyl Products, Inc.
and American Vending Corp. in 1990, and Confidential Shredding, Inc. in 1994. Quality Tile &
Marble, Inc. moved on-site in 1999.
g. 2405 Dunavant Street (purchased January 18, 2008): A 12,000-square foot
building was constructed on this 0.67-acre parcel in 1962. Prior to that year, this and
surrounding properties to the north, south and west were undeveloped. From 1962 to 1974, the
parcel was occupied by Jobbers Automotive Supply, Inc. In 1989, "Subtle Impressions Printing
Company'' occupied it. From 1997 to early 2008, "Gelbach Designs" occupied the parcel, which
is now vacant.
h. 2415/2418 Dunavant Street (purchased December 28, 2006): This parcel was
most recently owned by Mark and Patricia Pegram. It comprises approximately 1.6 acres
consisting of two tracts separated by Dunavant Street. The 2418 Dunavant Street tract (on the
west side of the street) contains 0.544 acres and is used for parking. The 2415 Dunavant Street
tract comprises 1.13 2 acres and contains a 25, 000-square foot building. The building was
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constructed in 1964 and occupied by "Atlantic Envelope Company Manufacturers." The parcel
was vacant in 1974; "Delta Knitting Mills, Inc." occupied it in 1979. "Delta Prints Printers" was
the occupant in 1979, and 1984 again saw no occupants on the site. By 1989, Qualex Inc., a
commercial photographic studio on the street west of Dunavant, had overflowed to this location.
The subject parcel was most recently occupied by "Dixie Automotive," which distributed
automotive parts there until 2004.
i. 2517 Dunavant Street (purchased October 3, 2006): ·This 0.622-acre parcel is
at the northern end of the 140 Remount Road parcel (see subparagraph 6.j. below) and the
southern end of the 2415 Dunavant Street parcel (see subparagraph 6.h. below). Prior to 1960 it
was undeveloped. From 1965 to 1996, Pritchard Paint and Glass Company owned this and the
140 Remount Road parcel. The parcel was utilized for storage during that period (by "Air
Masters HV AC Company'' of 2426 Dunavant Street, perhaps among others, according to a
weathered sign and aerial photographs). From 1996 to 2006, this and the 140 Remount Road
parcel were owned by the Bell Family. This parcel continued to be used for storage of bulky
materials, but was also used for parking. There were no structures on the parcel.
j. 140 Remount Road (purchased October 3, 2006): This 3.008 -acre parcel
formerly contained a 52,400-square foot main facility building and a 1,200-square foot
maintenance building. The site was initially developed in 1960 by the entity that operated as
Pritchard Paint and Glass Company. Operations conducted on-site included distribution, storage,
and sales of glass and paint, as well as paint-mixing and limited metal fabrication associated with
the construction of metal frames for glass, until mid-1995. From 1996 until Prospective
Developer acquired the parcel, Colorcraft Printing Company, Inc. operated there. It was owned
and operated by the then owners of the parcel, Mr. and Mrs. Ray Bell. Colorcraft used the parcel
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for packaging design, sales, manufacturing, storage and distribution. Its manufacturing process
used water-based substances in a water-based system. A two-story office portion of the main
facility building was leased to Action Staffing, Inc., a temporary staffing agency.
k. 2508/2522 South Boulevard (purchased October 3, 2006): The 2508 South
Boulevard parcel contained a building that was constructed in 1962. Operations on the parcel
have included the following:
"Pep Boys" auto supply/repair facility
Westside Pawn Shop, Inc.
"Auto Supply Company of Charlotte," Mechanically Inclined, Inc.
Berlin's Pawn Shop, Inc.
"Auten," Charlotte Service Center Inc.
Dryclean Carolinas, Inc.
1964 to 1979
1982
1984 to 1987
1989 to 1998
1999-2000
2000 to 2002
The 2522 South Boulevard parcel has been the site of automobile-related activities. After
"Direct Auto Sales" operated there in 1953, Esso and Exxon service stations used the parcel from
1956 to 1967 and from 1969 to 1987, respectively, and Sedgefield Chevron and/or Phillips
operated there from 1987 to 2002.
I. 2500 South Boulevard (purchased December 2, 2008): Prospective Developer
purchased from Ken Harris, Jr., Gary Berry and Gary Wheeler. The parcel's main 42,574-square
foot building was constructed in 1950 on this 1.6 acre site. A paint wholesaler operated on the
parcel in the mid-l 960s, as did a paint wholesaler with "Ford" in its name when "Green
Brothers Lumber Company" sold the parcel to Harris Tire in 1976.
m. 2400 South Boulevard (purchased October 3, 2006): In 1950-1951,
development appeared to be associated with operations on the adjacent parcel to the north, where
"Georgia Carolina Products" operated. A 1953 Sanborn Fire Insurance Co. aerial map reflects
development on the western portion of this 1. 78-acre parcel. Writing on the map appears to
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state, "Blds Material Signs." No later than 1963, a McDonald's fast food restaurant was
constructed and began operating on the parcel, but at that time the development formerly evident
in the western portion was no longer present. The McDonald's ceased operation and was
demolished in 2004.
n. i. 2316 South Boulevard (purchased October 3, 2006): This parcel
comprises approximately 1.3 acres, and contained two (2) buildings and paved parking areas.
The main building contained 15,000 square feet and was constructed in 1938 after previous
residential use of the parcel. At the time of the May 2006 Environmental Report regarding this
parcel, the eastern portion of that building was being utilized as office space and as a chemical
research laboratory. The western portion of the main building is two stories high, and formerly
housed the production area of"Ray Chemical Company," though, at the time of the May 2006
Environmental Report, it was being used to store antique furniture, clothing and equipment
owned by the family of the parcel owner.
ii. A 4,800-square foot prefabricated metal garage formerly stood west of
the main building. Georgia-Carolina Products leased the portion of the parcel containing that
building to an automotive body shop. The shop began operations at the site in approximately
2002. Only the shop's owner worked there; his work was done principally for friends and
family. No automotive maintenance or metal machining was conducted on-site.
iii. Tenants at the site included "Carolina Aniline & Extract Company"
and "Charlotte Textile Company'' (1938-1946), "Ray Chemical Company'' (1944-1954) and
Chemical Processing Co., Inc. (1955 to the time of Prospective Developer's purchase). Ray
Chemical Company and Chemical Processing Co., Inc. were owned by the family of the previous
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parcel owner. While Ray Chemical Company operated on-site, distribution of Mobil Oil brand
petroleum products occurred there.
o. 2300 South Boulevard (purchased January 11, 2007): This parcel comprises
2.4-acres and was vacant at the time of the September 2006 Environmental Report concerning it.
The main structure on the parcel (containing approximately 15,175 square feet) was constructed
between 1953 and 1956, and was utilized as an office area and welding facility. In 1960, a
garage containing approximately 6,200 square feet and a painting shed containing approximately
450 square feet were constructed in the northwest corner of the parcel and the southwest portion,
adjacent to the western boundary, respectively. The parcel has been occupied by a welders'
supply store since 1960. "AIRCO Welders Supply'' operated there from 1960 to the late 1990s.
"Welder's Supply of Charlotte" has operated there since then. Residences that predated the
parcel's current structures were removed in the mid-1950s.
7. The most recent environmental sampling at the Property reported in the
Environmental Reports occurred in January 2008. The following tables set forth, for
contaminants present at the Property above unrestricted use standards, the maximum
concentration found at each sample location and the applicable standard:
a. Groundwater contaminants (in micrograms per liter, the equivalent of parts per
billion), the standards for which are in Title 15A of the North Carolina Administrative Code
(''NCAC"), Subchapter 2L, Rule .0202:
Groundwater Sample Date of Max. Max. Cone. Date of Most Most Recent Standard Concentration above Std. Recent Concentration Contaminant Location Sampling (µg/L) Sampling (µg/L) (µg/L)
DSCA 10/21/04 2.1 12/1/05 <1.0
MW-IA Benzene DSCA 1125108 2.3 1/25/08 2.3 1.0
MW-6
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Groundwater Sample Date of Max. Max. Cone. Date of Most Most Recent Standard Concentration above Std. Recent Concentration Contaminant Location Sampling (µg/L) Sampling (µg/L) (µg/L)
1,2-PS-GW-1 10/23/06 1 * * 0.38
Dichoroethane
Di-isopropyl DSCA 1/25/08 170 1/25/08 170 70
ether MW-6
PS-GW-1 10/23/06 1.2 * *
PS-GW-3 10/23/06 1.6 * *
2316 Well 10/23/06 2.7 * *
DSCA 1/25/08 60 1/25/08 60
MW-lA
Tetrachoroethene DSCA 3/18/05 150 1/15/08 32 0.7
MW-2
DSCA 11/30/05 52 1/25/08 51
MW-3
DSCA 1/25/08 83 1/25/08 83
MW-4
DSCA 12/1/05 9.7 1/25/08 7.7
Tetrachoroethene DW-1 0.7
MW-5 1/3/08 2.1 * *
PS-GW-1 10/23/06 84 * *
PS-GW-3 10/23/06 110 * *
OA-GW-1 10/20/06 5.1 * *
OA-GW-2 10/20/06 44 * *
MD-GW-1 10/20/06 100 * *
MD-GW-2 10/20/06 78 * *
WS-GW-6 10/23/06 3.9 * *
WS-GW-8 10/23/06 3.0 * *
Trichloroethene DSCA 3/18/05 8 11/30/05 <l 2.8 MW-1
DSCA 3/18/05 12 11/30/05 2.5
MW-2
DSCA 1/4/08 40 1/25/08 53
MW-3
DSCA 11/30/05 23 1/25/08 3.6
MW-4
DSCA 1/25/08 200 1125/08 200
DW-1
MW-2 1/3/08 5 * *
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Groundwater Sample Date of Max. Max. Cone. Date of Most Most Recent Standard Concentration above Std. Recent Concentration Contaminant Location Sampling (µg/L) Sampling (µg/L) (µg/L)
MW-4 1/3/08 26 * *
MW-5 1/3/08 160 * *
* Indicates temporary well or well sampled only one time.
b. Soil contaminants (in milligrams per kilogram, the equivalent of parts per
million), the standards for which are derived using the Guidelines of the Inactive Hazardous
Sites Branch ofDENR's Superfund Section:
Date of Max. Maximum
Soil Sample Depth Concentration Concentration Standard
Contaminant Location Sampling above Std. (mg/kg)
(mg/kg)
Benzo( a)anthracene WS-HA-10 0-2' 10/17/06 2.1 0.022
Benzo( a )pyrene WS-HA-10 0-2' 10/17/06 1.9 0.022
Benzo(b )fluoranthene WS-HA-10 0-2' 10/17/06 2.1 0.22
Dibenzo( a,h)anthracene WS-HA-10 0-2' 10/17/06 0.31 0.022
Chromium RR-SB-3 2-4' 10/16/06 47 44
Total Petroleum RR-SB-1 0.25-2' 10/16/06 370 40
Hydrocarbons -Diesel
Range Organics
8. For purposes of this Agreement DENR relies on Prospective Developer's
representations that Prospective Developer's involvement with the Property has been limited to
obtaining or commissioning the Environmental Reports, preparing and submitting to DENR a
Brownfields Letter of Intent dated June 14, 2006, a Letter of Intent addendum dated July 11,
2006, a Brownfields Application on October 3, 2007 and a March 3, 2008 update to the
application regarding the 2517 Dunavant Street parcel, and the following:
a. Prospective Developer purchased the Property's parcels listed in the table
below on the referenced dates:
Street Address Date Purchased
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2205 Dunavant Street 0510612007
2235 Hawkins Street 05/30/2007
2303 Dunavant Street 12/13/2006
2309 Dunavant Street 08/29/2007
2321 Dunavant Street 05/16/2007
2316 South Boulevard 10/03/2006
2415/2418 Dunavant Street 12/28/2006
2517 Dunavant Street 10/03/2006
140 Remount Road 10/03/2006
2300 South Boulevard 01/11/2007
2508/ 2522 South Boulevard 10/03/2006
2400 South Boulevard 10/03/2006
2401 Dunavant Street 05/30/2007
2405 Dunavant Street 01118/2008
2500 South Boulevard 12/02/2008
b. Prior to demolition, Prospective Developer conducted asbestos abatement. It
demolished all structures on the property, except the Harris Tire building.
c. Prospective Developer has performed the following Underground Storage
Tank ("UST") and Dry-Cleaning Solvent Act ("DSCA")-related work at the Property:
1. USTwork:
A. 2300 South Boulevard (clean closure): Soil samples were
collected in October 2007 as part of closure assessment activities regarding a 6,000-gallon
gasoline UST and a 6,000-gallon fuel oil UST. The assessment found no gasoline-range Total
Petroleum Hydrocarbons above the action level of 10 milligrams per kilogram in two (2) soil
samples and a sample collected beneath the site of a former gasoline dispenser. On November 2,
2007, the Mooresville Regional Office ofDENR's UST Section issued a "No Further Action"
(''NF A") letter.
B. 2316 South Boulevard -Georgia Carolina Products (removal of
"clean-closed" 5,000-gallon mineral oil UST and closure/removal of an 8,000-gallon non-
regulated heating oil UST): Use of the heating oil tank, installed in September 1966, was
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discontinued in: the mid-1990s. A release (assigned Incident# 20608) was reported to DENR
shortly after the mineral oil tank's January 1999 closure-in-place. Soil and groundwater
sampling conducted in October 1999 did not indicate chemicals of concern, and DENR issued a
NFA letter on June 30, 2000. When both tanks were removed in September 2007, three (3)
samples taken beneath the heating oil tank were below applicable soil-to-groundwater action
levels for diesel-range petroleum hydrocarbons and non-detect for gasoline-range petroleum
hydrocarbons. Documentation of this appears in the Environmental Report regarding this parcel,
which was sent to the Mooresville Regional Office ofDENR's UST Section on May 24, 2008.
C. 2522 South Boulevard: Five (5) USTs installed in 1969 and
permanently closed in 1988 were registered for this location. The five tanks included two (2)
1,000-gallon used oil USTs, one (1) 4,000-gallon gasoline UST and two (2) 6,000-gallon
gasoline US Ts. When five (5) subsequently installed petroleum hydrocarbon USTs at the site
were removed in 2004, a petroleum release affecting groundwater and soil was discovered.
Approximately 574 tons of contaminated soil were removed from site during tank closure.
Concluding that soil contamination at this parcel does not exceed 15A NCAC 2L .Ol 15's
residential soil contaminant standards, DENR issued a ''Notice of No Further Action" for the
parcel on February 9, 2005. In that on-site groundwater contamination, though in the "low risk"
category, exceeds 15A NCAC 2L.0202's groundwater contaminant standards, DENR required
recordation of a Notice of Residual Petroleum that prohibits water supply wells on this parcel.
D. 2500 South Boulevard: This parcel was listed in DENR's
Leaking Underground Storage Tank and Incident Management Database due to an
approximately 500-gallon heating oil UST formerly located along the eastern outside facility
wall, adjacent to the loading dock. The parcel's owner prior to Harris Tire used the UST in
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connection with on-site boiler systems. Harris Tire removed the UST and remediated the
impacted soil surrounding the tank in the mid-1990s. A groundwater monitoring well was
installed adjacent to the former UST pit in 2001. A December 2001 NFA letter indicated that
soil contamination does not exceed the industrial/commercial maximum soil contaminant
concentrations and groundwater contamination qualified for a low-risk classification.
E. 140 Remount Road: A notice of contamination was submitted
to the UST Section on October 31, 2007, as a soil sample exceeded the 10 milligrams per
kilogram Total Petroleum Hydrocarbons legal action level by two (2) milligrams per kilogram.
ERM, NC LLC conducted a Phase I Limited Site Assessment regarding this incident in January
2008, in conjunction with groundwater assessment work conducted for this Agreement. As the
assessment detected no volatile, semi-volatile or volatile/ extractable petroleum hydrocarbon
:fractions in groundwater, the May 2008 Environmental Report regarding this work
recommended no further action, with which DENR's UST Section agreed via a June 26, 2008
letter.
F. 2508 South Boulevard: Four hydraulic lifts, a pressure tank and
associated piping were excavated at the former Pep Boys auto supply/repair facility on
September 15 and 26, 2007. Soil samples collected at the base of each excavation directly
beneath the lift mechanisms were analyzed for Oil and Grease Total Petroleum Hydrocarbons
("O&G TPH"). O&G TPH was only detected in one sample, hydraulic lift #4, at 67 mg/kg, well
below the 250 milligrams per kilogram action level. Approximately 14.8 tons of soil were
removed from the excavation for hydraulic lift #4 and disposed of off-site on November 19,
2007. Using a vacuum truck, Haz-Mat Transportation and Disposal, Inc. of Charlotte, North
Carolina removed approximately 343 gallons of residual petroleum fluids and water from the
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lifts and vault on September 25, 2007. The fluids were manifested and transported to that firm's
facility for treatment and disposal on September 25, 2007.
G. 2321 Dunavant Street: A UST on this parcel had a monitoring
well (MW-3) installed near it during the Phase II Addendum work performed in January 2008.
The well sampled "non-detect" for volatile and semi-volatile compounds at that time.
ii. DSCA Program: Based on evidence of dry cleaning solvent
contamination discovered at 2508 South Boulevard during soil and groundwater sampling,
DENR admitted Dry Clean Carolinas' previous owner, William Plemmons, into the DSCA
Program by letter dated February 22, 2005. The Environmental Report regarding this parcel
reflects additional soil and groundwater assessment and monitoring performed by DSCA
contractors since then. Soil sampling by DSCA contractors underneath concrete slabs that
remain at the parcel has not revealed contaminants at levels that could potentially leach to
groundwater above applicable standards. Remediation of the groundwater contaminant plume
awaits completion of off-site assessment. At this time, approval to complete off-site assessment
has not been granted to the DSCA Program. The Program required quarterly sampling starting
this year.
9. Prospective Developer has provided DENR with information, or sworn certifications
regarding that information on which DENR 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 N.C.G.S. § 130A-
310.32( a)(l );
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b. as a result of the implementation of this Agreement, the 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 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 Property; and
e. Prospective Developer has complied with all applicable procedural
requirements.
10. Prospective Developer has paid the $2,000 fee to seek a brownfields agreement
required by N.C.G.S. § 130A-310.39(a)(l), and shall make a payment to DENR of $3,500 at the
time Prospective Developer and DENR enter into this Agreement, defined for this purpose as
occurring no later than the last day of the public comment period related to this Agreement. The
Parties agree that the second payment shall constitute, within the meaning of N.C.G.S. § 130A-
3 l 0.39( a)(2), the full cost to DENR and the North Carolina Department of Justice of all activities
related to this Agreement.
IV. BENEFIT TO COMMUNITY
11. The redevelopment of the Property proposed herein would provide the following
public benefits:
a. a return to productive use of portions of the Property and an increase in the
Property's productivity;
b. a spur to additional community redevelopment, through improved
neighborhood appearance and otherwise;
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c. jobs associated with several hundred thousand square feet of commercial
space, and property management/service jobs associated with high-density residential units;
d. increased tax revenue for affected jurisdictions;
e. transit-oriented development, in the form of additional retail establishments,
offices and residences adjacent to the City of Charlotte's light rail system; and
f. "smart growth" through use of land in an already developed area, which avoids
development ofland beyond the urban fringe ("greenfields").
V. WORK TO BE PERFORMED
12. Prospective Developer shall, to the satisfaction ofDENR's UST Section, close and
remove the heating oil UST associated with the Southern Comfort business on that parcel prior
to redevelopment of the Property as defined by DENR. If there is residual contamination
associated with the tank that the UST Section determines requires an incident number, or other
tanks are discovered during demolition and redevelopment, Prospective Developer shall address
said incidents and/or tanks to the satisfaction of the UST Section. Until a copy of a NF A letter
has been submitted to the official referenced in subparagraph 34.a. below regarding the known,
and any later-discovered, incidents and/or tanks on the parcel, Prospective Developer shall report
in writing to said official the status of such incidents and/or tanks during January each year after
this Agreement takes effect.
13. Within 90 days after the effective date of this Agreement, Prospective Developer
shall notify DENR that it is ready to effect the abandonment of all groundwater monitoring
wells, injection wells, recovery wells, piezometers and other man-made points of groundwater
access at the Property in accordance with Subchapter 2C of Title 15A of the North Carolina
Administrative Code. Unless DENR notifies Prospective Developer within ten days of receiving
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such notification to refrain from such abandonment, Prospective Developer shall effect said
abandonment and shall, within 30 days after concluding such abandonment, provide DENR a
report setting forth the procedures and results.
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 (DENR's Covenant Not to Sue and Reservation of Rights), DENR is not requiring
Prospective Developer to perform any active remediation at the Property other than any UST-
related work required pursuant to paragraph 12 above and/or any work that may constitute active
remediation pursuant to subparagraphs 15.c., e. and/or f. below.
15. By way of the Notice ofBrownfields 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 Property suitable for the uses specified in this Agreement while fully
protecting public health and the environment. All references to DENR shall be understood to
include any successor in function.
a. No use may be made of the Property other than mixed commercial and high
density residential use, with associated parking and landscaped areas, without DENR's prior
written approval. For purposes of this restriction, the following definitions apply:
i. "Commercial" refers to wholesale, retail, office and hotel use.
ii. "High Density Residential" refers to 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.
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iii. "Parking" refers to an area designed and used for the temporary
accommodation of motor vehicles.
iv. "Landscaped areas" refers to outdoor areas not covered by impervious
or hard pervious surfaces, such as asphalt or concrete, on which are placed and maintained trees,
shrubs and groundcover, or fences, walls and /or earthen berms.
A. "Impervious": prevents the absorption of surface water into
underlying soil.
B. "Hard Pervious": allows absorption of surface water into the
soil but has a hard surface formed or cast in place that protects land users from exposure to any
contaminants in underlying soil. Pervious concrete and pervious tennis court materials are
examples.
b. Unless compliance with this Land Use Restriction is waived in writing in
advance by DENR in relation to particular buildings, no use of the Property may occur prior to
demolition of all buildings on the Property depicted on the plat component of the Notice
referenced in paragraph 20 below in accordance with applicable legal requirements, including
without limitation those related to lead and asbestos abatement that are administered by the
Health Hazards Control Unit within the Division of Public Health of the North Carolina
Department of Health and Human Services.
c. No building may be constructed on the Property until:
i. DENR determines in writing, based on submittals from the building's
proponent, that the building's users, and public health and the environment, would not be at risk
from the Property's volatile contaminant plume; or
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ii. vapor mitigation measures approved in writing by DENR in advance
are installed to the satisfaction of a professional engineer licensed in North Carolina, as
evidenced by said engineer's seal, and photographs illustrating the installation and a brief
narrative describing it are submitted to DENR and deemed satisfactory in writing by that agency.
d. Underground water at the Property may not be used for any purpose without
the prior written approval ofDENR.
e. No part of the Property that DENR determines constitutes a discrete portion
may be occupied by businesses or residences prior to compliance with i., ii. or iii. of this
subparagraph 15.e. with respect to areas of the discrete portion not covered by an impervious or
hard pervious surface. Regardless of whether i., ii. or iii. is chosen, soil at the Property may be
disturbed only for the purpose of constructing buildings and related structures (e.g., in
connection with grading, installing utilities and other infrastructure, building below grade
parking and pouring footers), and only so long as affected soil is handled in compliance with a
Soil Management Plan approved in advance, in writing, by DENR.
i. Excavation of the soil in the subject areas to a depth not less than 12
inches, provided that the disposition of excavated soil is carried out in accordance with the
DENR-approved Soil Management Plan. Unless the DENR-approved Soil Management Plan
allows an alternative, geotextile fabric acceptable to DENR shall be placed at the base of the
excavation and fill certified as clean by DENR shall be used to bring the excavation to grade.
The areas containing clean fill shall be surveyed to DENR's written satisfaction, with permanent
survey pins demarcating the comers. Said survey shall be recorded as an amendment of the plat
component of the Notice referenced in paragraph 20 below. A copy of the survey, reflecting its
recordation, shall be submitted to DENR within 15 days post-recordation.
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determines would likely contaminate groundwater even if capped, or that may pose an imminent
threat to public health or the environment if exposed, as much soil as DENR reasonably requires
shall be removed and disposed of in accordance with applicable law, and any other actions that
DENR reasonably requires to make the Property suitable for the uses specified in this
Agreement while fully protecting public health and the environment shall be taken. If soil
contamination is discovered that DENR determines would not likely contaminate groundwater
if capped, or likely pose an imminent threat to public health or the environment if exposed, as
much soil as DENR reasonably requires shall be removed and disposed of in accordance with
applicable law or capped to the written satisfaction ofDENR.
g. No mining may be conducted on or under the Property, including, without
limitation, extraction of coal, oil, gas or any other minerals or non-mineral substances.
h. No basements may be constructed on the Property unless they are, as
determined in writing by DENR, vented in conformance with applicable building codes.
i. None of the contaminants known to be present in the environmental media at
the Property, including those listed in paragraph 7 of this Agreement, may be used or stored at
the Property without the prior written approval ofDENR, except in de minimis amounts for
cleaning and other routine housekeeping activities.
j. The Property may not be used as a park or for sports of any kind, including, but
not limited to, golf, football, soccer and baseball, absent prior written notice to DENR of such
intent and compliance with subparagraph 15.e.i or ii. above to DENR's written satisfaction.
k. The Property may not be used as a playground, or for child care centers or
schools, absent prior written notice to DENR of such intent and compliance with subparagraph
15.e.i or ii. above to DENR's written satisfaction.
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1. The owner of any portion of the Property where any existing or later DENR-
approved monitoring well is damaged shall be responsible for repair of any such wells to
DENR's written satisfaction and within a time period acceptable to DENR.
m. Neither DENR, nor any party conducting environmental assessment or
remediation at the Property at the direction of, or pursuant to a permit, order or agreement issued
or entered into by DENR, may be denied access to the 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 Property.
n. During January each year, the owner of any part of the Property as of January
1st of that year shall submit a notarized Land Use Restrictions Update ("LURU") to DENR
(except that a joint LURU may be submitted for multiple owners by a duly constituted owners'
association), and to the chief public health and environmental officials of Mecklenburg County,
certifying that, as of said January 1st, the Notice of Brownfields Property containing these land
use restrictions remains recorded at the Mecklenburg County Register of Deeds office and that
the land use restrictions are being complied with, and stating:
i. the name, mailing address, telephone and facsimile numbers, and
contact person's e-mail address of the owner submitting the LURU if said owner acquired any
part of the Property during the previous calendar year; and
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 Property
during the previous calendar year.
16. The desired result of the above-referenced land use restrictions, and the measures
required by paragraphs 12 and 13 above, is to make the Property suitable for the uses specified in
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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 the Guidelines of the Inactive Hazardous Sites Branch
ofDENR's Superfund Section, as embodied in their most current version.
18. The consequences of achieving or not achieving the desired results will be that the
uses to which the Property is put are or are not suitable for the Property while fully protecting
public health and the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
19. In addition to providing access to the Property pursuant to subparagraph 15 .m.
above, Prospective Developer shall provide DENR, its authorized officers, employees,
representatives, and all other persons performing response actions under DENR 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 Property under applicable law.
While Prospective Developer owns the Property, DENR shall provide reasonable notice to
Prospective Developer of the timing of any response actions to be undertaken by or under the
oversight ofDENR at the Property. Except as provided in Section IX (DENR's Covenant Not to
Sue and Reservation of Rights) of this Agreement, DENR 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. DENR has approved, pursuant to N.C.G.S. § 130A-310.35, a Notice ofBrownfields
Property for the 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 Property. Pursuant to
N.C.G.S. § 130A-310.35(b), within 15 days of the effective date of this Agreement Prospective
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Developer shall file the Notice ofBrownfields Property in the Mecklenburg County, North
Carolina Register of Deeds' office. Within three (3) days thereafter, Prospective Developer shall
furnish DENR 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 ofBrownfields
Property. Subsequent to recordation of said Notice, any deed or other instrument conveying an
interest in the Property shall contain the following notice: "The property which is the subject of
this instrument is subject to the Brownfields Agreement attached as Exhibit A to the Notice of
Brownfields Property recorded in the Mecklenburg County land records, Book __ , Page
__ ." A copy of any such instrument shall be sent to the persons listed in Section XV (Notices
and Submissions), though financial figures related to the conveyance may be redacted.
22. The Prospective Developer shall ensure that a written summary of this Agreement
approved in writing in advance by DENR, and a written offer to provide a complete copy of the
Agreement if requested, is provided to any current lessee or sublessee on the Property as of the
effective date of this Agreement and shall ensure that any subsequent leases, subleases,
assignments or transfers of the Property or an interest in the Property are consistent with this
Section (Access/Notice To Successors In Interest), Section V (Work to be Performed) and
Section XI (Parties Bound & Transfer/Assignment Notice) of this Agreement.
VII. DUE CARE/COOPERATION
23. The Prospective Developer shall exercise due care at the Property with respect to
regulated substances and shall comply with all applicable local, State, and federal laws and
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