Witten Lumber recorded NBP-OCR

Prospective Developer: QuikTrip Corporation
ORIGINAL RECORDED
WITH COVER SHEET
Property Owner: Community Bank of Raymore, Agent for the Trustees of the Kern E. Kenyon
Revocable Trust as to an undivided 12.5% interest; ·
Community Bank of Raymore, Agent for the Trustees of the Faith Fayman Strong Amended and
Restated Trust as to an undivided 12.5% interest;
Community Bank of Raymore, Trustee of the Milus D. Scruggs Amended and Restated Trust Dated May
28, 2004 as to an undivided 12.5% interest; ·
Community Bank of Raymore, Agent for the Trustees of the William L. Abernathy 2003 Charitable Lead
Trust as to an undivided 12.5% interest;
Community Bank of Raymore, Agent for the Trustees of the William L. Abernathy Testamentary
Charitable Lead Trust as to an undivided 12.5% interest;
Community Bank of Raymore, Agent for the Trustees of the Janet Kernes Revocable Trust as to an
undivided 12.5% interest;
Community Bank of Raymore, Agent for the Trustees of the Karen Leiker Revocable Trust as to an
undivided 12.5% interest; and
Community Bank of Raymore, Agent for the Trustees of the Sarah C. Fayman Revocable Trust as to an
undivided 12.5% interest
Recorded in Book __ , Page __
Associated plat recorded in Plat Book_, Page __
NOTICE OF BROWNFIELDS PROPERTY
This documentary component of a Notice of Brownfields Property ("Notice"), as well as the plat
component, have been filed this /fc,"111 day of )·*( , 201.1_ by QuikTrip Corporation
(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 N CGS § 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 is located at 310 East Long A venue in Gastonia, Gaston County. The property is
3. 72 acres. It is the former location of the Gastonia Weaving Company, the Gastonia Lumber Company, and most
recently Witten Enterprises, LLP, a lumberyard. The site is being developed as a gasoline service station and
convenience store (QuikTrip #1045).
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 §. lJOA-310.32. The Brownfields
Agreement's Exhibit 2 consists of one or more data tables reflecting the concentrations of and other
information regarding the Property's regulated substances and contaminants.
Exhibit B to this Notice is a reduction, to 8 1/2" x 11 ",of the plat component of this Notice. The
plat shows areas designated by DENR, has been prepared and certified by a professional land surveyor, and
complies with NCGS § 130A-310.35(a)'s requirement that the Notice identify:
(1) The location and dimensions of the areas of potential environmental concern with respect to permanently
surveyed benchmarks.
(2) The type, location and quantity of regulated substances and contaminants known to exist on the
Brownfields Property.
Attached hereto as Exhibit C is a legal description of the Brownfields Property that would be sufficient as a
description of the property in an instrument of conveyance.
LAND USE RESTRICTIONS
NCGS 130A-310.35(a) also requires that the Notice identify any restrictions on the current and future use of
the Brownfields Property that are necessary or useful to maintain the level of protection appropriate for the
designated current or future use of the Brownfields Property and that are designated in the Brownfields Agreement.
The restrictions shall remain in force in perpetuity unless canceled by the Secretary of 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:
2
1. No use may be made of the Property other than for commercial office and retail establishments,
including a retail fuel station and convenience store, which will sell petroleum products including
gasoline and diesel fuels, food and beverages, and miscellaneous merchandise (QT 1045) in accordance
with all applicable regulations.
2. Groundwater at the Property may not be used for any purpose without the prior written
approval of DENR.
3. Physical redevelopment of the Property may not occur other than in accord, as determined by
DENR, with the SMP approved in writing by DENR on December 20, 2012 (and revised to DENR's
written satisfaction prior to each subsequent redevelopment phase, if more than one) that is consistent
with all the other land use restrictions set forth in this section and describes redevelopment activities at
the Property, the timing of redevelopment phase(s), and addresses health, safety and environmental
issues that may arise from use of the Property during construction or redevelopment in any other form,
including without limitation:
a. soil and water management issues, including without limitation those resulting from
contamination identified in the Environmental Reports, or that which may be associated with on-site
borrow material or soil imported to the Property;
b. issues related to potential sources of contamination referenced in paragraph 7; and
c. contingency plans for addressing newly discovered potential sources of environmental
contamination (e.g., contaminated soil beneath concrete slabs that are to be removed, tanks, drums, septic
drain fields, etc.)
4. In accordance with the SMP required by Land Use Restriction No. 3 above, the Property shall
be covered with a soil cap, vegetative cover, asphalt, concrete, or building foundations such that DENR
concludes in writing that the Property is suitable for the uses specified in Land Use Restriction No. 1
above and that public health and the environment are fully protected, and are maintained, and left
undisturbed other than through normal use. The area in the southern portion of the Property as denoted
on the plat component of the Notice of Brownfield Property in Exhibit B shall be redeveloped with a cap
consisting of a minimum of one (1) foot of clean ftll material and/or six (6) inches of reinforced concrete.
Final grade sampling of shallow soil shall be conducted in accordance with the SMP to DENR's written
satisfaction on any areas of the site where native soil is exposed. When soil at the Property is capped, a
written report verifying cap installation, compaction and. final grade thickness and elevations, and
summarizing any sampling or geotechnical testing of the cap or cap materials in areas that will not be
covered by buildings, as well as a plan for the cap's inspection and maintenance, shall be submitted to
DENR no later than 30 days following installation. Any deficiencies DENR identifies in the report or
plan shall be corrected to DENR's written satisfaction within 30 days after DENR provides written notice
of such deficiencies. Whenever the plan requires actions, the then owner( s) of affected portions of the
Property shall comply.
5. No activity that disturbs native and/or capped soil on the Property may occur unless and until
DENR states in writing, in advance of the proposed activity, that said activity may occur if carried out
along with any measures DENR deems necessary to ensure the Property will be suitable for the uses
3
specified, in Land Use Restriction No. 1 above while fully protecting public health and the environment,
except in connection with de minimis soil removals within clean imported fill material; shallow planting
of landscaping within imported fJll or topsoil and mowing and pruning of above-ground vegetation; and
for emergency repair of underground infrastructure provided that DENR shall be given written notice (if
only by email) of any such emergency repair no later than the next business day, and that any related
assessment and remedial measures required by DENR shall be taken.
6. The Property may not be used as a playground, for child care centers, schools, or residential
developments, without the prior written approval ofDENR.
7. None of the contaminants known to be present in the environmental media at the Property,
including those appearing in paragraph 7 of Exhibit A may be used or stored at the Property without the
prior written approval of DENR, except in de minimis amounts for cleaning and other routine
housekeeping activities.
8. The owner of any portion of the Property where any existing, or subsequently installed, 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, unless compliance with this land use
restriction is waived in writing by DENR in advance.
9. 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 assessm~nt or remediation,
which is to be conducted upon reasonable notice to the property owner, and using reasonable efforts to
minimize interference with authorized uses of the Property (though access shall be unlimited in
emergency situations).
10. During January of each year after the year in which this Notice of Brownfield Property is
recorded, 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, and to the chief public health and environmental
officials of Gaston County, certifying that, as of said January 15\ the Notice of Brownfields Property
containing these land use restrictions remains recorded at the Gaston County Register of Deeds office
and that the 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 Property during the
previous calendar year;
b. the transferee's name, mailing address, telephone and facsimile numbers, and contact
person's e-mail address, if said owner transferred any part of the Property during the previous calendar .
year;
c. the results of inspection and maintenance activities of the property cap or cover
materials conducted within the past year; and
d. the nature and result of any environmental ma~agement issue that was addressed during
4
EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
IN THE MATTER OF: QuikTrip Corporation
UNDER THE AUTHORJTY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, N.C.G.S. § 130A-310.30, et~.
Brownfields Project# 16020-12-36
)
)
)
)
I. INTRODUCTION
BROWNFIELDS AGREEMENT re:
Witten Lumber Site
310 East Long Avenue
Gastonia, Gaston County
This Brown:fields Agreement ("Agreement") is entered into by the North Carolina
Department of Environment and Natural Resources ("DENR") and QuikTrip Corporation
(collectively the "Parties11
) pursuant to the Brown:fie1ds Property Reuse Act of 1997, N.C.G.S. §
l30A-310.30, et seg. (the "Act").
The Prospective Developer is QuikTrip Corporation with its principal place of business at
4705 South 129th East Avenue, Tulsa, Oklahoma 74134. QuikTrip Corporation is a Domestic-
For-Profit Business Corporation organized under the laws of the State of Oklahoma. Its
President, CEO and Chairman of the Board is Mr. Chester Edouard Cadieux III, who is located
at the same business address. The Brownfield property is located at 310 East Long A venue,
Gastonia, Gaston County, 28054 (tax ID #104558). QuikTrip Corporation is redeveloping the
property into a retail fuel station and convenience store, which will sell petroleum products
including gasoline and diesel fuels, food and beverages, and miscellaneous merchandise (QT
1045). A map showing the location of the property which is the subject of this Agreement is
attached hereto as Exhibit I.
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
BFA Witten Lumber
limitations contained in Section VIII (Certification), Section IX (DENR' s Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
potential liability of QuikTrip Corporation for contaminants at the property which is the subject
of this Agreement.
The Parties agree that QuikTrip Corporation's entry into this Agreement, and the actions
undertaken by QuikTrip Corporation in accordance with the Agreement, do not constitute an
admission of any liability by QuikTrip Corporation.
The resolution of this potential liability, in exchange for the benefit QuikTrip Corporation
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 QuikTrip Corporation.
III. STATEMENT OF FACTS
3. The Property comprises 3. 72 acres. Prospective Developer has committed itself to
redevelopment for no uses other than commercial office and retail establishments, including a
retail fuel station and convenience store, which will sell petroleum products including gasoline
and diesel fuels, food and beverages, and miscellaneoµs merchandise (QT 1045). For purposes
of this restriction, the following definitions apply:
2 BFA Witten Lumber
i. "Commercial office" refers to the location of an enterprise that provides
business or professional services carried on for profit by the owner, lessee or licensee.
·ii. "Retail'' refers to the sale of goods, products, or merchandise directly to the
consumer.
4. The Property is bordered to the north by East Ratchford A venue, to the east by North
Morehead Street, to the south by East Long Avenue, and to the west by North Broad Street.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the "Environmental Report," regarding the Property:
Title Prepared by Date of Report
Phase I and Phase II Environmental Site
Assessment, Proposed QuikTrip #1045 Genesis Project, Inc. March 8, 2012
Project Monitoring, Abandoned Structures Froehling & Robertson, Inc. October 12, 2012
6. For purposes of this Agreement, DENR relies on the following representations by
Prospective Developer as to use and ownership of the Property:
a. Past uses of the site included residential use, cotton yarn spinning and weaving
mills, junkyard use, and a lumber yard. Historical maps dating back to 1898 indicate that the site
at that time was owned and operated by the Gastonia Cotton Manufacturing Company, which
evidently operated two spinning mills and a weaving mill at the property through 1922. A
railroad spur transected the property. A small number of dwellings are also observed at this time
in the northeastern corner of the site.
b. By the early 1900s, historical maps indicate the presence of an oil house and a
deep well at the property, presumably for fire suppression water and potentially for potable
BFA Witten Lumber 3
supply, and the use of coal at the site. At this time, the site was operated by the Gastonia
Weaving Company, a label manufacturer.
c. By 1922, yam twisting and unknown finishing operations were conducted at the
property. By 1930, the spinning mill in the western portion of the property was demolished and
an additional warehouse was constructed near the northeastern property boundary. As of 1950
through 1965, the Gastonia Lumber Company operated a lumber yard west of the railroad tracks;
it is unknown whether wood treating was conducted at the property. The Gaston Lumber·
Company sold the property to Witten Supply Company, Inc. in 1965. A plumbing supply store
is noted in the southeastern corner of the property with a junk yard or scrap metal yard noted
between the plumbing supply store and the Gastonia Weaving Co. operations. Dwellings
remained in the northeast area of the site at least through 1963. By the 1990s, several small
structures that had been constructed over the years and all residences were demolished and the
warehouse located near the southeastern property boundary was renovated for use as retail and
office space.
d. The site was most recently owned and operated by Witten Enterprises, LLLP
with property buildings totaling areas of approximately 19,000 square feet of former retail/office
building, approximately 162,000 square feet of warehouse space, several open air sheds, and a
brick building in the southeastern area of the site. The open air sheds and much of the railroad
spur were removed from the property in early 2012. All structures were vacant, and some were
in significant disrepair.
e. A Limited Phase II Assessment including advancement of soil borings, a
Preliminary Wetlands Evaluation, and an Asbestos Containing Materials (ACM) survey were
BFA Witten Lumber 4
conducted in February 2012. ~vidence of buried material was observed during the advancement
of soil borings located in the south central portion of the site, consistent with the known area of
historic scrap yard location.
f. QuikTrip Corporation purchased the property on June 21, 2012. An asbestos
abatement survey conducted in February 2012 indicated the presence of asbestos in certain
building materials. The removal of asbestos containing materials was performed at the vacant
onsite buildings from July 13, 2012 through August 14, 2012. The buildings were cleared for
demolition in the Froehling & Robertson, Inc. October 12, 2012 report. The buildings were
demolished during late August through September 2012.
g. QuikTrip obtained approval from the DENR UST Section on September 25,
2012 to install an UST system at the property. The facility ID number is 0-037887.
7. The most recent environmental sampling at the Property reported in the
Environmental Reports occurred on February 28, 2012. The following table sets forth, for
contaminants present at the Property above applicable standards or screening levels, the
concentr~tion found at each sample location and the applicable standard or screening level. Soil
screening levels are shown for reference only and are not set forth as cleanup levels for the
purposes of this Agreement.
a. 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, Rule .0202(2L), April 1, 2013 version) have not been detected in excess of
these standards at the property.
b. Soil contaminants in milligrams per kilogram (the equivalent of parts per
BF A Witten Lumber 5
million), the screening levels for which are derived from the Preliminary Industrial Health-Based
Remediation Goals of the Inactive Hazardous Sites Branch ofDENR's Superfund Section
(January 2014 version):
Soil Sample Depth Date of Concentration Industrial
Contaminant Location (ft) Sampling Exceeding Screening
Screening Level1
Level (mg/kg} (mg/kg)
C-1 6 2/15/2012 20
Arsenic 2.4
GP-1 3-5 2/28/2012 2.4
1 .. •-0 • The screenmg level displayed for arsenic 1s based on a I .OE hfet1me mcremental cancer nsk target.
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 Property Application dated May 11, 2012, and the following:
a. On June 21, 2012, Prospective Developer purchased the Property;
b. Prospective Developer arranged for the removal of asbestos containing
materials at the vacant onsite buildings, which took place from July 13, 2012 through August 14,
2012,and
c. Prospective Developer arranged for the demolition of buildings at the site,
which occurred from August to September 2012.
d. Prospective Developer arranged for new building construction at the Property,
which commenced January 7, 2013 with commercial operations starting on August 1, 2013.
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
BFA Witten Lumber 6
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_requii-ements cited at N.C.G.S. § BOA-
310.32( a)(l );
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 to DENR the $2,000 fee to seek a brownfields
agreement required by N.C.G.S. § l30A-3 l 0.39(a)(l ), and shall make a payment to DENR of
$3,500 at the time Prospective Developer and DENR enter into this Agreement, defmed for this
purpose as occurring no later than the last day of the public comment period related to this
Agreement. The Parties agree that such fees will suffice as the $2,000 fee to seek a brownfields
agreement required byN.C.G.S. § 130A-310.39(a)(l), and, within the meaning ofN.C.G.S. §
130A-310.39(a)(2), the full cost to DENR and the North Carolina Department of Justice of all
activities related to this Agreement, unless a change is sought to a Brownfield document after it
BFA Witten Lumber 7
is in effect, in which case there shall be an additional fee of at least $1,000.
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 the Property and elimination of the drawbacks of
unoccupied property; .
b. A spur to additional community redevelopment, through improved
neighborhood appearance and otherwise;
c. The creation of 18 permanent jobs and tens of jobs during redevelopment;
d. An increase in tax revenue for affected jurisdictions;
e. additional retail and food & beverage services for the area; 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. Any fuel UST system on the property shall be installed and operated in accordance
with all applicable DENR UST Section rules and regulations, and other applicable regulations.
13. In redeveloping the Property, Prospective Developer shall make reasonable efforts to
apply sustainability principles at the Property, incorporating the principles of efficiency,
environmental quality, sustainable materials and resources, use of green space, aesthetics,
regional impact, and other sustainable components while completing site development.
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 l
BFA Witten Lumber 8
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 remediation
that may be required pursuant to a DENR-approved Soil Management Plan (SMP) required by
this Section.
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, instead of remediation to unrestricted use
standards. All references to DENR shall be understood to include any successor in function.
a No use may be made of the Property other than for commercial office and retail
establishments, including a retail fuel station and convenience store, which will sell petroleum
products includmg gasoline and diesel fuels, food and beverages, and miscellaneous merchandise
(QT 1045) in accordance with all applicable regulations.
b. Groundwater at the Property may not be used for any purpose without the prior
written approval of DENR.
c. Physical redevelopment of the Property may not occur other than in accord, as
determined by DENR, with the SMP approved in writing by DENR on December 20, 2012 (and
revised to DENR' s written satisfaction prior to each subsequent redevelopment phase, if more
than one) that is consistent with all the other land use restrictions set forth in this section and
describes redevelopment activities at the Property, the timing of redevelopment phase(s), and
addresses health, safety and environmental issues that may arise from use of the Property during
construction or redevelopment in any other form, including without limitation:
BF A Witten Lumber 9
i. soil and water management issues, including without limitation those
resulting :from contamination identified in the Environmental Reports, or that which may be
associated with on-site borrow material or soil imported to the Property;
ii. issues related to potential sources of contamination referenced in
paragraph 7; and
iii. contingency plans for addressing newly discovered potential sources of
environmental contamination (e.g., contaminated soil beneath concrete slabs that are to be
removed, tanks, drums, septic drain fields, etc.)
d. In accordance with the SMP required by paragraph 15.c. above, the Property
shall be covered with a soil cap, vegetative cover, asphalt, concrete, or building foundations such
that DENR concludes in writing that the Property is suitable for the uses specified in
subparagraph 15.a. above and that public health and the environment are fully protected, and are
maintained, and left undisturbed other than through normal use. The area in the southern portion
of the Property as denoted on the plat component of the Notice of Brownfield Property in
paragraph 20 below shall be redeveloped with a cap consisting of a minimum of one (1) foot of
clean fill material and/or six ( 6) inches of reinforced concrete. Final grade sampling of shallow
soil shall be conducted in accordance with the SMP to DENR's written satisfaction on any areas
of the site where native soil is exposed. When soil at the Property is capped, a written report
verifying cap installation, compaction and final grade thickness and elevations, and summarizing
any sampling or geotechnical testing of the cap or cap materials in areas that will not be covered
by buildings, as well as a plan for the cap's inspection and maintenance, shall be submitted to
DENR no later than 30 days following installation. Any deficiencies DENR identifies in the
BFA Witten Lumber 10
report or plan shall be corrected to DENR's written satisfaction within 30 days after DENR
provides written notice of such deficiencies. Whenever the plan requires actions, the then
owner(s) of affected portions of the Property shall comply.
e. No activity that disturbs native and/or capped soil on the Property may occur
unless and until DENR states in writing, in advance of the proposed activity, that said activity
may occur if carried out along with any measures DENR deems necessary to ensure the Property
will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public
health and the environment, except in connection with de minimis soil removals within clean
imported fill material; shallow planting of landscaping within imported fill or topsoil and
mowing and pruning of above-ground vegetation; and for emergency repair of underground
infrastructure provided that DENR shall be given written notice (if only by email) of any such
emergency repair no later than the next business day, and that any related assessment and
remedial measures required by DENR shall be taken.
f. The Property may not be used as a playground, for child care centers, schools,
or residential developments, without the prior written approval of DENR.
g. None of the contaminants known to be present in the environmental media at
the Property, including those appearing in paragraph 7 of this Agreement may be used or stored
atthe Property without the prior written approval ofDENR, except in de minimis amounts for
cleaning and other routine housekeeping activities.
h. The owner of any portion of the Property where any existing, or subsequently
installed, 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, unless
BFA Witten Lumber 11
compliance with this Land Use Restriction is waived in writing by DENR in advance.
i. 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 upon reasonable notice to the property
owner, and using reasonable efforts to minimize interference with authorized uses of the
Property (though access shall be unlimited in emergency situations).
j. During January of each year after the year in which the Notice referenced
below in paragraph 20 is recorded, the owner of any part of the Property as of January 1st of that
year shall submit a notarized Land Use Restrictions Update ("LURU") to DENR, and to the chief
public health and environmental officials of Gaston County, certifying that, as of said January
1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at
the Gaston County Register of Deeds office and that the land use restric~ions are being complied
with, and stating:
L 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;
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; and
iii. the results of inspection and maintenance activities of the property cap
or cover materials conducted within the past year; and
BF A Witten Lumber 12
iv. the nature and result of any environmental management issue that was
addressed during the preceding year.
16. The desired result of the above-referenced land use restrictions is to make the
Property suitable for the uses specified in the Agreement while fully protecting public health and
the environment.
17. The guidelines, including parameters, principles and policies within which the
desired results are to be accomplished are, as to field procedures and laboratory testing, the
Guidelines of the Inactive Hazardous Sites Branch ofDENR's Superfund Section, as embodied
in their most current version.
18. The consequence of achieving the desired results will be that the property will be
suitable for the uses specified in the Agreement while fully protecting public health and the
environment. The consequence of not achieving the desired results will be that modifications to
land use restrictions and/or remediation in some form may be necessary to fully protect public
health and/or the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
19. In addition to providing access to the Property pursuant to subparagraph 15 .i. 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 of
BF A Witten Lumber 13
DENR at the Property. Except as may be set forth in the 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 of Brown.fields
Property for the Property containing, inter ali~ 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
Developer shall file the Notice of Brown.fields Property in the Gaston 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 of Brownfields
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 Gaston 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 copy of this Agreement is provided to
any current lessee or sub lessee on the Property within seven days of the effective date of this
BFA Witten Lumber 14
Agreement and shall ensure that, to the extent it can legally do so, 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) of this Agreement
VII. DUE CARE/COOPERATION
23. The Prospective Developer shall exercise due care at the Property with respect to the
manner in which regulated substances are h:andled at the Property and shall comply with all
applicable local, State, and federal laws and regulations. The Prospective Developer agrees to
cooperate fully with any remediation of the Property by DENR and further agrees not to interfere
with any such 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 Property, the
Prospective Developer shall immediately take all appropriate action to prevent, abate, or
minimize such release or threat of release, and shall, in addition to complying with any
applicable notification requirements under N.C.G.S. 130A-310.l and 143-215.85, and Section
103 of CERCLA, 42 U.S.C. § 9603, or any other law, immediately notify DENR of such release
or threatened release.
VIII. CERTIFICATION
24. By entering into this Agreement, the Prospective Developer certifies that, without
DENR approval, it will make no use of the Property other than that committed to in the
Brownfields Property Application dated May 11, 2012 by which it applied for this Agreement.
That use is commercial office and retail establishments, including a retail fuel station and
convenience store, which will sell petroleum products including gasoline and diesel fuels, food
BFA Witten Lumber 15
and beverages, and miscellaneous merchandise (QT 1045). Prospective Developer also certifies
that to the best of its knowledge and belief it has fully and accurately disclosed to DENR all
information known to Prospective Developer and all information in the possession or control of
its officers, directors, employees, contractors and agents which relates in any way to any past use
of regulated substances or known contaminants at the Property and to its qualification for this
Agreement, including the requirement that it not have caused or contributed to the contamination
at the Property.
IX. DENR'S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
25. Unless any of the following apply, Prospective Developer shall not be liable to
DENR, and DENR covenants not to sue Prospective Developer, for remediation of the Property
except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the 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 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 ofBrownfields Property required
under N.C.G.S. 130A-310.35 is violated while the Prospective Developer owns the Property, in
which case the Prospective Developer shall be responsible for remediation of the Property to
unrestricted use standards.
d. The Prospective Developer knowingly or recklessly provided false information
BFA Witten Lumber 16
that formed a basis for this Agreement or knowingly or recklessly offers false information to
demonstrate compliance with this Agreement or fails to disclose relevant information about
contamination at the Property.
e. New information indicates the existence of previously unreported contaminants
or an area of previously unreported contamination on or associated with the 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 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 Property or (ii) the failure of remediation to mitigate risks to the extent
required to make the Property fully protective of public health and the environment as planned in
this Agreement.
g. The Department obtains new information about a contaminant associated with
the Property or exposures at or around the Property that raises the risk to public health or the
environment associated with the Property beyond an acceptable range and in a manner or to a
degree not anticipated in this Agreement.
BFA Witten Lumber 17
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under N.C.G.S. 130A-310.35.
26. Except as may be provided herein, DENR reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act, including those regarding petroleum
underground storage tanks pursuant to Part 2A, Article 21A of Chapter 143 of the General
Statutes.
27. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, N.C.G.S. § 113A-l, et seq.
28. Consistent with N.C.G.S. § 130A-3 l 0.33, the liability protections provided herein,
and any statutory limitations in paragraphs 25 through 27 above, apply to all of the persons listed
in N.C.G.S. § 130A-3 l 0.33, including future owners of the property, to the same extent as
prospective developer, so long as these persons are not otherwise potentially responsible parties
or parents, subsidiaries, or affiliates of potentially responsible parties.
X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
29. In consideration of DENR's Covenant Not To Sue in Section IX of this Agreement
and in recognition of the absolute State immunity provided in N.C.G.S. § 130A-310.37(b), the
Prospective Developer hereby covenants not to sue and not to assert any claims or causes of
action against DENR, 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.
BFA Witten Lumber 18
XI. PARTIES BOUND
30. This Agreement shall apply to and be binding upon DENR, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party's signatory to this
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
XII. DISCLAIMER
31. This Agreement in no way constitutes a finding by DENR as to the risks to public
health and the environment which may be posed by regulated substances at the Property, a
representation by DENR that the Property is fit for any particular purpose, nor a waiver of
Prospective Developer's duty to seek applicable permits or of the provisions ofN.C.G.S. §
130A-310.37.
32. Except for the Land Use Restrictions set forth in paragraph 15 above and N.C.G.S. §
130A-310.33(a)(l)-(5)'s provision of the Act's liability protection to certain persons to the same
extent as to a prospective developer, no rights, benefits or obligations conferred or imposed upon
Prospective Developer under this Agreement are conferred or imposed upon any other person.
XIII. DOCUMENT RETENTION
33. The Prospective Developer agrees to retain and make available to DENR all
documents and other records, in whatever form, related directly or indirectly to all provisions of
this Agreement, all contaminants known to be present in the environmental media at the
Property, including without limitation those listed in the Environmental Reports; and
improvement to and maintenance of the Property, including without limitation land-disturbing
activity, and all other environmental matters, including without limitation actual or potential
BFA Witten Lumber 19
risks to public health or the environment. Said material shall be retained for six (6) years
following the effective date of this Agreement, unless otherwise agreed to in writing by the
Parties. At the end of six (6) years, the Prospective Developer shall notify DENR of the location
of such documents and shall provide DENR with an opportunity to copy any documents at the
expense of DENR. To the extent DENR retains any copies of such documents, Prospective
Developer retains all rights it then may have to seek protection from disclosure of such
documents as confidential business information.
XIV. PAYMENT OF ENFORCEMENT COSTS
34. If the Prospective Developer fails to comply with the terms of this Agreement,
including, but not limited to, the provisions of Section V (Work to be Performed), it shall be
liable for all litigation and other enforcement costs incurred by DENR to enforce this Agreement
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
35. Unless otherwise required by DENR or a Party notifies the other Party in writing of a
change in contact information, all notices and submissions pursuant to this Agreement shall be
sent by prepaid first class U.S. mail, as follows:
a. forDENR:
BF A Witten Lumber
Sharon Poissant Eckard, PG (or successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
20
b. for Prospective Developer:
James D. Marchesano, Vice President
QuikTrip Corporation
4705South129 East Avenue
Tulsa, OK 74134
Notices and submissions sent by prepaid first class U.S. mail shall be effective on the third day
following postmarking. Notices and submissions sent by hand or by other means affording
written evidence of date of receipt shall .be effective on such date.
XVI. EFFECTIVE DATE
36. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving it, signed, from DENR. Prospective Developer shall sign the Agreement
within seven (7) days following such receipt.
XVII. TERMINATION OF CERTAJN PROVISIONS
37. If any Party believes that any or all of the obligations under Section VI
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the
requirements of the Agreement, that Party may request in writing that the other Party agree to
terminate the provision(s) establishing such obligations; provided, however, that the provision(s)
in question shall continue in force unless and until the Party requesting such termination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CON1RIBUTION PROTECTION
38. With regard to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
BFA Witten Lumber 21
claims to the extent provided by N.C.G.S. § 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 DENR or any other person in relation to the Property.
39. The Prospective Developer agrees that, with respect to any suit or claim for
contribution brought by it in relation to the subject matter of this Agreement, it will notify DENR
in writing no later than 60 days prior to the initiation of such suit or claim.
40. The Prospective Developer also agrees that, with respect to any suit or claim for
contribution brought against it in relation to the subject matter of this Agreement, it will notify
DENR in writing within 10 days of service of the complaint on it.
XIX. PUBLIC COMMENT
41. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after the last to occur of the following: publication of the approved summary of
the Notice of Intent to Redevelop a Brownfields Property required by N.C.G.S. § 130A-310.34
in a newspaper of general circulation serving the area in which the Property is located,
conspicuous posting of a copy of said summary at the Property, and mailing or delivery of a copy
of the summary to each owner of property contiguous ~o the Property. After expiration of that
period, or following a public meeting if DENR holds one pursuant to N.C.G.S. § 130A-
310 .34( c ), DENR 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.
BFA Witten Lumber 22
ExhibitC
BROWNFIELDS PROPERTY DESCRIPTION
310 East Long Avenue
Gastonia, Gaston County. North Carolina
Being all that certain tract or parcel of land lying in the City of Gastonia, Gaston County,
North Carolina, and being more particularly described as follows:
BEGINNING at an iron rebar set at the intersection of the northerly margin of East Long
Avenue (a variable public right of way) and the easterly margin of North Broad Street (a
variable public right of way), said rebar having NCGS Grid Coordinates of Northing
558,773.21 feet, Easting 1 ,350, 109.32 feet, combined grid factor 0.99983883, thence, in a
northerly direction, along the easterly margin of North Broad Street the following three (3)
courses and distances: (1) North 13-33-58 West 48.49 feet to a PK Nail set; (2) North 9-24-
04 East 322.03 feet to an iron rebar set; and (3) North 41-07-29 East 25.21 feet to an iron
rebar set on the southerly margin of Ratchford A venue, a 40-foot public right of way as shown
on Plat Book 1, Page 46; thence, along the southerly margin of Ratchford Avenue, South
87-23-29 East 395.14 feet to a PK nail set at the intersection of the southerly margin of
Ratchford Avenue and the westerly margin of North Morehead Street, a 42-foot public right of
way, per plat recorded in Plat Book 1, Page 50; thence, in a southerly direction, along the
westerly margin of North Morehead Street, South 16-11-02 West 475.35 feet to a PK nail
found on the northerly margin of East LOng Avenue, as shown on North Carolina Department
of Transportation Project Number 8.1629703; thence, along the northerly margin of East Long
Avenue, North 74-10-55 West 332.64 feet to the POINT AND PLACE OF BEGINNING,
containing 3.6962 acres, more or less.