Winston Mutual recorded NBP-OCR

,1
Jr11;·1Jt-.~/ "f o ZIO-e tu1/1th~·
Prope1·ty Owner:· Fifth Street Investments, LLC
Recorded in Book3dld, Page J.2$.
Associated plat recorded in Plat BookW, Page ·37 --S'l)
NOTICE OF BROWNFIELDS PROPERTY
111111111/l~llllllf lllllllt llllf 1111111
2014010809 00183
FORSYTH CO, NC FEE $94.00 PRESBHED & RECOllOEI}
03-28-2014 03:14:23 PM
C. NORMAN HOLLEMAN
REGISTER Of' DEEDS
BY: RANDY l SMITH
DPTY
BK: RE 3172
PG: 671-702
This documenta1-y component of a Notice of Brownfields Property (''Notice"), as well as the plat
component, have been filed this~ day of jA1 A&\.\-, 201!i.._ by Fifth Street Investments, LLC
(hereinafter "Prospective Developer") ..
The Notice concerns contaminated prope1·ty.
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
pubJic health or the environment posed by environmental contamination at a property (hereinafter the
"Brownfields Property") being addressed under the Brown fields 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, whichevel' is later. Pursuant to
NCGS § 130A-310.35(c), the copy of the Notice certified by DENR must be recol'ded in the grantor index
under the names of the owners of the land and, if Prospective Developer is not the owner, also under
Prospective Develope1·'s name.
The Property is located at 1225 East Fifth Street, Winston-Salem, Forsyth County (PIN 6835-67-
6843.00) and is occupied by the vacant four-story, 18,000 square foot histol'ically significant Winston
Mutual building and surrounding asphalt parking areas and landscaping. Prior to the construction of the
Winston Mutual Company building, the site was used for a mix of residential and commercial operations.
Historic commercial uses in the site vicinity included several gasoline service stations, including
automobile repair services, a mortual'y and funeral home, restaurants, and dry cleaning operations.
Prospective Developer has committed itself to redevelopment for no uses other than rehabilitating the
I
cu1·rently vacant and histol'ically significant former Winston Mutual Insurance building for mixed
commercial office, professional office, nonprofit office, business incubator, retail, warehousing, multi-
unit residential, restaurant, community center, and religious institution uses, with associated parking and
service drives.
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. The Brownfields
Agreement's Exhibit 2 consists of one or more data tables i·eflecting 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 pennanently
surveyed benchmarks.
(2) The type, location and quantity of regulated substances and contaminants known to exist on the
Brownfields Propeity.
Attached hereto as Exhibit C is a legal description of the Brownfields Prope1ty that would be sufficient as a
description of the prnperty in an instmment of conveyance.
LAND USE RESTRICTIONS
NCGS l 30A-3 l 0.35(a) also requires that the Notice identify any restrictions on the current and future use of
the Brownfields Propetty 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 ofDENR (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 a•·e as follows:
1. No use may be made of the Property other titan for mixecl commercial office, professional office,
nonp1·ofit office, business incubator, retail, warehousing, multi-unit residential, restaurant, community
center, and religious institution uses, with associated parking and service drives. For purposes of this
restriction, the following definitions apply:
a. "Commercial office" refers to space within a building used for wholesale, retail, office,
entertainment or services, plus related contiguous accessory uses such as parking areas and service drives;
b. "Professional office" refers to an establishnient primarily engaged in providing
engineering, architectural, and surveying services; accounting, auditing, and bookkeeping services;
public relations services; legal services; real estate set"Vices; the services of insurance agents, brokers, and
·carriers; the services of security and commodity brokers; and the services of bank holding companies;
2
c, "Nonprofit office" refers to a place of business in which a group, institution, or
corporation formed for the purpose of providing goods and services under a policy where commercial
profit is not the goal of the enterprise;
d. "Business incubator" refers to an economic development program that supports the
successful development of entrepreneurial companies through business support services for selected
clients;
e. "Retail" refers to the sale of goods, products, or merchandise directly to the consumer;
f. "Warehousing" refers to the storage of goods for distribution to consumers;
g. "Multi-unit residential" refe1·s to a permanent dwelling such as a condominium,
apartment, group home, domlitory, or boarding house where 1·esidential units are attached to each other
with common walls and any property outside the dwelling structure is common to the residents and not
p1·ivately owned as part of an individual dwelling unit;
h. "Restaurant" refers to a commercial business establishment that prepares and serves
food and beverages to patrons for profit;
i. "Community center" refers to a public location where membe1·s of a community may
gather for group activities, social support, public information, religious, and artistic purposes such as
providing an art center, art gallery space, theatre space, venues for musical and dance performances,
workshop areas, and educational facilities; and
j. "Religious institution" refers to a church, temple, or synagogue, the principal purpose of
which is religious wo1·ship.
2. Physical redevelopment of the Property may not occur other than in accord, as determined by
DENR, with an Environmental Management Plan approved in writing.by DENR in advance (and revised
to DENR's written satisfaction prior to each subsequent redevelopment phase) that is consistent with all
the other land use restrictions and describes redevelopment activities at the Property, the timing of
redevelopment phases, 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;
b. issues related to potential sources of contamination referenced in paragraph 7 of Exhibit
A; and
c. contingency plans for addressing newly discove1·ed potential sources of environmental
contamination (e.g., tanks, drums, septic drain fields).
3. At the same time as the Land Use Restriction Update ("LURU") is due pursuant to paragraph
14.i. of Exhibit A, for as long as physical redevelopment of the Property continues (except that the final
deadline shall faJl 90 clays after the conclusion of physical redevelopment), the then owner of the Property
shall provide DENR a 1·epm·t subject to written DENR approval on environment-related activities since
the last repm·t, with a summary and drawings, that describes:
3
a. actions taken in accordance with the plan required by subparagraph 14.b. of Exhibit A;
b. soil grading and cut and fill actions;
c. methodology(ies) employed for field screening, sampling and laboratory analysis of
environmental media;
d. stockpiling, containerizing, decontaminating, treating, handling, laboratory analysis and
ultimate disposition of any soil, groundwate1· or other materials suspected or confirmed to be
contaminated with regulated substances; and
e. removal of any contaminated soil, water or other contaminated materials (for example,
concrete, demolition debris) from the Prope1·ty (copies of all legally required manifests shall be included).
4. Groundwater at the Property may not be used for any purpose without the prior written
approval of DENR.
5. After conclusion of the redevelopment period referenced in subparagraph 14.b. of Exhibit A as
determined by DENR, no activity that disturbs 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 14.a. of Exhibit A above while fully protecting public health and the environment, except:
in connection with de minimis soil removals to depths not exceeding 36 inches, mowing and pl'Uning of
above-ground vegetation; and, for emergency repair of underground infrast1·ucture, 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. None of the contaminants known to be present in the environmental media at the Property,
including those in paragraph 7 of Exhibit A, may be used or stored at the Property without the prior
written approval of DENR, except in de mi11imis amounts for cleaning and other routine housekeeping
activities.
7. The owner of any portion of the Property where any existing, or subsequently installed, DENR-
approvecl monitoring well is damaged shall be responsible for repair of any such wells to DENR's written
satisfaction and within a time pel'iod acceptable to DENR, unless compliance with this Land Use
Restriction is waived in writing by DENR in advance.
8. Neither DENR, nor any party conducting environmental assessment 01· 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 Prope1·ty for purposes of conducting such assessment or remediation,
which is to be conducted using reasonable effo1·ts to minimize interference with authorized_ uses of the
Property.
9. During January of each year after the year in which the Notice referenced below in paragrnph
19 of Exhibit A is rec01·ded, 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
4
EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
IN THE MA TIER OF: Fifth Street Investments, LLC
UNDER THE AUTHORITY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, N.C.G.S. § 130A-310.30, et~.
Brownfields Project# 16027-12-034
)
)
)
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I. INTRODUCTION
BROWNFIELDS AGREEMENT re:
Winston Mutual Site
1225 East Fifth Street
Winston-Salem, Forsyth County
This.Brown.fields Agreement ("Agreement") is entered into by the North Carolina
Department of Environment and Nah1ral Resources ("DENR") and Fifth Street Investments,
LLC (collectively the "Parties") pursuant to the Brownfields Property Reuse Act of 1997,
N.C.G.S. § 130A-3 l 0.30, et~· (the "Act").
The Prospective Develope1·, Fifth Street Investments, LLC is a manage1·-managed limited
liability company, which is managed by Mr. Joseph B. Williams. Fifth Street Investments,
LLC's principal office is located at 211 M Carrick Road, Lexington NC 27292-6086. The
proposed redevelopment of the Property is rehabilitating the currently vacant and historically
significant former Winston Muhml Insurance building for mixed commercial office, business
incubator space, retail, and multi-unit residential use, and adding restaurant space to the area.
The Property is located at 1225 East Fifth Street, Winston-Salem, Forsyth County (PIN 6835-67-
6843.00). 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 unde11ake 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
BFA Winston Mutual
and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
potential liability of Fifth Street Investments, LLC for contaminants at the property which is the
subject of this Agreement.
The Parties agree that Fifth Street Investments, LLC's entry into this Agreement, and the
actions unde1iaken by Fifth Street Investments, LLC in accordance with the Agreement, do not
constitute an admission of any liability by Fifth Street Investments, LLC.
The resolution of this potential liability, in exchange fo1· the benefit Fifth Street
Investments, 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. l 30A, Atiicle 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
1. "Prope1ty" 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 Fifth Street Investments, LLC.
III. STATEMENT OF FACTS
3. The Property comprises approximately 1.6 acres. Prospective Developer has
committed itself to redevelopment for no uses other than rehabilitating the currently vacant and
histodcally significant fmmer Winston Mutual Insurance building fo1· mixed commercial office,
professional office, nonprofit office, business incubatm·, retail, warehousing, multi-unit
residential, restaurant, community center, and religious institution uses, with associated parking
and service drives. The Property is occupied by a vacant four-story, 18,000 square foot building
BF A Winston Mutual 2
and sunounding asphalt parking areas and landscaping.
4. The Property is bordered to the north by the East Winston Shopping Center and
associated large parking area, to the east by a Burger King restaurant with N. Martin Luther King
Jr. Drive beyond, to the south by Fifth Street and commercial property beyond including a bank
and an auto service center, and to the west by a medical office building owned by NC Baptist
Hospitals, Inc., with N. Cleveland Avenue beyond.
5. Prospective Developer obtained or commissioned the following rep01ts, referred to
hereinafter as the "Environmental Reports," regarding the Property:
Title Prepared by Date of Report
Phase I Environmental Site Assessment Progress Environmental, Inc. April 30, 2012
Repo1t of Limited Soil and Groundwater Progress Environmental, Inc. June 7, 2012 Assessment
Repo1t, Geophysical Investigation of the Geo Solutions Ltd. June 13, 2012 1225 Fifth St Site, Winston-Salem, NC
Report of Limited Soil Assessment Progress Environmental, Inc. April 29, 2013
6. For purposes of this Agreement, DENR relies on the following representations by
Prospective Developer as to use and ownership of the Prope1ty:
a. The Prope1ty was most recently used as a commercial office building by the
Golden State Mutual Life Insurance Company (Golden State); small commercial enterprises,
including a credit union, phannacy, realty, accounting, used electronics, and printing opel'ations;
legislative district offices; and community development services. The building has been vacant
since approximately 2011.
b. Prior to ownership and use of the building by Golden State, the Property was
owned by the Winston Mutual Life InsUl'ance Company from January 19, 1968 through 1985.
BFA Winston Mutual 3
Once the building was constructed in 1969, the Winston Mutual Life Insurance Company and
other commercial enterprises occupied the building until Golden State purchased the property in
1985. The Winston Mutuai Life Insurance Company was significant as a pioneering African-
American insurance company in North Carolina, with its founding in 1906.
c. Prior to the construction of the Winston Mutual Company building, the site was
used for a mix of residential and commercial operations. Historic commercial uses in the site
vicinity included several gasoline service stations with automobile repair services, a mortuary
and funeral home, restaurants, and dry cleaning operations.
d. The area including the Property was subject to an urban renewal project in the
1960s under the jurisdiction of the Redevelopment Commission of Winston-Salem. As part of
that project, area roadways were reconfigured. North Cleveland A venue was moved west of its
fmmer location. This reconfiguration makes it difficult to identify whether potential sources of
contamination from historic uses, such as gasoline service stations with historic underground
storage tanks (USTs), were present at or adjacent to the Property. The Forsyth County Register
of Deeds deems that deeds fol' this Property prior to 1968 ai·e not "reasonably ascertainable" due
to the reconfiguration of roadways and prope1ties in the area.
e. Prospective Develope1· purchased the Property on September 19, 2012.
7. The most recent environmental sampling at the Prope1ty reported in the
Environmental Reports occurred on Apl'il 11, 2013. The following table sets fo1th, for the
contaminant present at the Property above applicable screening levels, the concentration found at
the sample location and the applicable screening level. The screening level is shown for
reference only and is not set forth as a cleanup level for the purposes of this Agreement.
BF A Winsto~1 Mutual 4
a. Groundwater contaminants were not detected at the Property in concentrations
that were in excess of the standards for which are contained in Title 15A of the North Carolina
Administrative Code, Subchapter2L, Rule .0202(2L), (April 1, 2013 version).
b. Soil contaminant in milligrams per kilogram (the equivalent of parts per
million), the screening level for which is derived from the Preliminary Residential Health-Based
Remediatfon Goals of the Inactive Hazardous Sites Branch of DENR' s Superfund Section
(February 2013 version):
Soil Sample Depth Date of Concentration Residential
Contaminant Location (feet) Sampling Exceeding Screening
Screening Level1
Level (mg/kg) (mg/kg)
Arsenic HAl-2 2 4/11/2013 4.21 0.39
I -o • Screemng levels displayed for carcrnogens are for 1.0E hfetnne 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, prepal'ing and submitting to DENR a
Brownfields Prope1ty Application dated July 13, 2012, and the following:
a. On September 19, 2012, Prospective Developer purchased the Property; and
b. Since that time, added fencing, patched concrete, and conducted landscaping
maintenance tasks at the Prope1ty.
9. Prospective Developer has provided DENR with information, or sworn ce1tifications
regarding that information on which DENR relies for purposes of this Agreement, sufficient to
demonstrate that:
a. Prospective Developer and any parent, subsidim·y, 01· other affiliate has
BF A Winston Mutual 5
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 );
b. As a result of the implementation of this Agreement, the Prope1ty 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 Prope1iy will produce a public benefit
commensurate with the liability protection provided Prospective Developer hereunder;
d. Prnspective 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 byN.C.G.S. § 130A-3 l0.39(a)(l), and shall make a payment to DENR of
$6,000 plus any additional fee negotiated between the pa1iies related to services of the
Department of Justice attomey for purposes of negotiating this Agreement at the time
Prnspective Developer and DENR enter into this Agreement, defined for this purpose as
occun'ing 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 is in
6 BF A Winston 1\fotual
effect, in which case there shall be an additional fee of at least $1,000.
IV. BENEFIT TO COMMUNITY
11. The redevelopment of the Prope11y 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 spm· to additional community redevelopment, through improved
neighborhood appearance and otherwise;
c. the creation of approximately 25 temporary construction jobs and 20 full time
permanent jobs;
d. an increase in tax revenue for affected jurisdictions;
e. additional office and restaurant space for the area; and
f. "smart growth" through use of land in an already developed area, which avoids
development of land beyond the m·ban fringe ("greenfields").
V. WORK TO BE PERFORNIED
12. In redeveloping the Property, Prospective Developer shall consider reasonable efforts
to apply sustainability principles at the Property.
13. Based on the information in the Enviromnental Reports, and subject to imposition of
and compliance with the land use restrictions set fo11h 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 perfo1m any active remediation at the Property other than remediation
that may be required pursuant to a DENR-approved Environmental Management Plan (EMP)
BF A Winston Mutual 7
required by this Section.
14. By way of the Notice ofBrownfields Property referenced below in paragraph 19,
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 for mixed commercial office,
professional office, nonprofit office, business incubator, retail, warehousing, multi-unit
residential, restaurant, community center, and religious institution uses, with associated parking
and service drives. For purposes of this restriction, the following definitions apply:
i. "Commercial office" refers to space within a building used for
wholesale, retail, office, ente1tainment ot· services, plus related contiguous accessory uses such as
parking areas and service drives;
ii. "Professional office" refers to an establishment primarily engaged in
providing engineering, architectural, and surveying services; accounting, auditing, and
bookkeeping services; public relations services; legal services; real estate services; the services
of insurance agents, brokers, and carriers; the services of security and commodity brokers; and
the services of bank holding companies;
iii. "Nonprofit office" refers to a place of business in which a group,
institution, or corporation formed for the purpose of providing goods and services under a policy
where commercial profit is not the goal of the enterprise;
BFA Winston Mutual
iv. "Business incubato1"' refers to an economic development program that
8
supports the successful development of entrepreneurial companies through business support
services for selected clients;
v. "Retail" refers to the sale of goods, products, or merchandise directly to
the consumer;
vi. "Warehousing" refers to the storage of goods fo1· distribution to
consumers;
vii. "Multi-unit residentiaP' refers to a pe1manent dwelling such as a
condominium, apaitment, group home, dormitory, or boarding house where residential units are
attached to each other with common walls and any prope1ty outside the dwelling structure is
common to the residents and not pdvately owned as pa1t of an individual dwelling unit;
viii. "Restaurant" refers to a commercial business establishment that
prepares and serves food and beverages to patrons for prnfit;
ix. "Community center" refe1·s to a public location where members of a
community may gather for group activities, social suppott, public inf9rmation, religious, and
artistic purposes such as providing an art center, art gallery space, theatre space, venues fo1·
musical and dance performances, workshop areas, and educational facilities; and
x. "Religious institution" refers to a church, temple, or synagogue, the
principal purpose of which is religious worship.
b. Physical redevelopment of the Property may not occur other than in accord, as
determined by DENR, with an Environmental Management Plan approved in writing by DENR
in advance (and revised to DENR's written satisfaction prior to each subsequent redevelopment
phase) that is consistent with all the other land use restrictions and describes redevelopment
BFA Winston Mutual 9
activities at the Property, the timing of redevelopment phases, 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:
i. soil and water management issues, including without limitation those
resulting from contamination identified in the Environmental Rep011s;
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., tanks, drums, septic drain fields).
c. At the same time as the Land Use Restriction Update ("LURU") is due
pursuant to paragraph 14.i., for as long as physical redevelopment of the Property continues
(except that the final deadline shall fall 90 days after the conclusion of physical redevelopment),
the then owner of the Property shall provide DENR a rep011 subject to written DENR approval
on environment~related activities since the last report, with a summary and drawings, that
describes:
i. actions taken in accordance with the plan required by subparagraph 14.b.
above;
ii. soil grading and cut and fill actions;
iii. methodology(ies) employed for field screening, sampling and
laboratory analysis of environmental media;
iv. stockpiling, containerizing, decontaminating, treating, handling,
laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected
10
BF A Winston Mutual
or confirmed to be contaminated with regulated substances; and
v. removal of any contaminated soil, water 01· other contaminated
materials (for example, concrete, demolition 'debris) from the Property (copies of all legally
required manifests shall be included).
d. Groundwater at the Property may not be used for any pui'J)ose without the prior
wl'itten approval of DENR.
e. After conclusion of the redevelopment period referenced in subparagraph 14.b.
as determined by DENR, no activity that disturbs soil on the Prope1ty may occur unless and until
DENR states in writing, in advance of the proposed activity, that said activity may occur if
catTied out along with any measures DENR deems necessary to ensure the Property will be ·
suitable for the uses specified in subparagraph 14.a. above while fully protecting public health
and the enviromnent, except: in connection with de minimis soil removals to depths not
exceeding 36 inches, mowing and prnning of above-ground vegetation; and, for emergency
repair of underground infrastmcture, 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. None of the contaminants known to be present in the environmental media at
the Propetty, including those in paragraph 7 of this Agreement, may be used or stored at the
Property without the prior written approval of DENR, except in de minim is amounts for cleaning
and other routine housekeeping activities.
g. The owner of any portion of the Propetty where any existing, or subsequently
installed, DENR-approved monitoring well is damaged shall be responsible for repair of any
BFA Winston l\fotual 11
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.
h. Neither DENR, nm· any patiy 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 Propetiy 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.
i. During January of each year after the year in which the Notice referenced
below in paragraph 19 is recorded, the owner of any part of the Prope1iy 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 Forsyth County, ce11ifying that, as of said January
1st, the Notice of Brownfields Propetiy containing these land use restrictions remains recorded at
the Forsyth 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
pai1 of the Property during the p1·evious calendar year; and
ii. the transferee's name, mailing address, telephoue and facsimile
numbers, and contact person's e-mail address, if said owner transferred any pa11 of the Property
during the previous calendar year.
15. The desired result of the above-referenced land use restrictions is to make the
Prope1iy suitable for the uses specified in the Agreement while fully protecting public health and
BFA Winston Mutual 12
,·
the environment.
16. The guidelines, including parameters, principles and policies within which the
desired results are to be accomplished are, as to field procedures and laboratory testing, the
Guidelines of the Inactive Hazardous Sites Branch of DENR's Superfund Section, as embodied
in their most current version.
17. The consequence of achieving the desired results will be that the property will be
suitable fo1· 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
18. In addition to providing access to the Property pursuant to subparagraph 14.h. 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 othe1· prope1ty controlled by Prospective Develope1· 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 unde1taken by or under the oversight of
DENR at the Property. Except as may be set fotth 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.
19. DENR has approved, pursuant to N.C.G.S. § 130A-310.35, a Notice ofBrownfields
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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), with.in 15 days of the effective date of this Agreement Prospective
Develope1· shall file the Notice of Brownfields Property in the Forsyth County> North Carolina,
Registe1· of Deeds' office. Within three (3) days thereafter, Prospective Developer shall fumish
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.
20. 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 instrnment is subject to the Brownfields Agreement attached as Exhibit A to the Notice of
Brownfields Property recorded in the Forsyth County land records, Book __ , Page __ ." A
copy of any such instrnment shall be sent to the persons listed in Section XV (Notices and
Submissions), though financial figures related to the conveyance may be redacted.
21. The Prospective Developer shall ensure that a copy of this Agreement is provided to
any current lessee or sublessee on the Property within seven days of the effective date of this
Agreement and shall ensme 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 Pe1formed)
and Section XI (Parties Bound) of this Agreement.
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VII. DUE CARE/COOPERATION
22. The Prospective Developer shall exercise due care at the Property with respect to the
manner in which regulated substances are handled at the Property and shall comply with all
applicable local, State, and federnl 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 underN.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.
vrn. CERTIFICATION
23. By entering into this Agreement, the Prospective Developer ce1tifies that, without
DENR approval, it will make no use of the Property other than that committed to in the
Brownfields Prope11y Application dated July 13, 2012, by which it applied for this Agreement.
That use is rehabilitating the currently vacant and historically significant former Winston Mutual
Insurance building for mixed commercial office, professional office, nonprofit office, business
incubator, retail, warehousing, multi-unit residential, restaurant, community center, and religious
institution uses, with associated parking and service drives. 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
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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 01· contributed to the contamination
at the Property.
IX. DENR'S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
24. 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 Prope11y by 01· under the control or direction
of the Prospective Developer increase the risk of harm to public health 01· 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 Propetty, in
which case the Prospective Developer shall be responsible for remediation of the Property to
unrestricted use standards.
d. The Prospective Developer knowingly 01· recklessly provided false information
that formed a basis for this Agreement or knowingly or recklessly offers false infonnation to
demonstrate compliance with this Agreement or fails to disclose relevant information about
contamination at the Property.
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e. New information indicates the existence of previously unreported contaminants
or an area of previously unreported contamination on or associated with the Prope1ty that has not
been remediated to unrestricted tise standards, unless this Agreement is amended to include any
previously unrepotted contaminants and any additional areas of contamination. If this
Agreement sets maximum concentrations.for contaminants, and new information indicates the
existence of previously unrepo1ted 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 01· 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 Prope1ty due to changes in exposure conditions,
including (i) a change in land use that increases the probability of exposurn to contaminants at or ·
in the vicinity of the Property or (ii) the failm·e of remediation to mitigate risks to the extent
required to make the Propetty fully protective of public health and the environment as planned in
this Agreement.
g. The Depattment obtains new information about a contaminant associated with
the Propetty 01· exposures at or around the Propetty that raises the risk to public health 01· the
environment associated with the Prope1ty beyond an acceptable range and in a manner 01· to a
degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Propeity underN.C.G.S. 130A-310.35.
25. Except as may be provided herein, DENR reserves its rights against Prospective
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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.
26: 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. § l 13A-l, et~·
27. Consistent with N.C.G.S. § 130A-310.33, the liability protections provided herein,
and any statutory limitations in paragraphs 24 through 26 above, apply to all of the persons listed
in N.C.G.S. § 130A-3 l 0.33, including future owners of the propetty, 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
28. In consideration ofDENR'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-3 l 0.37(b), the
Prospective Developer hereby covenants not to sue and not to assett 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 ofBrownfields Property.
XI. PARTIES BOUND
29. 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
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this Agreement and to legally bind the Party for whom she ot· he signs.
XII. DISCLAINIER
30. 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 Propetty 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.
31. Except for the Land Use Restrictions set forth in paragraph 14 above and N.C.G.S. §
l 30A-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
32. The Prospective Develope1· agrees to retain and make available to DENR all business
and operating records, contracts, site studies and investigations, and documents relating to
operations at the Property, for six (6) years following the effective date of this Agreement, unless
otherwise agreed to in writing by the Patties. Retention of records in electronic formats used or
approved by DENR with systematic and automated backup controls meets the requirements of
this paragraph. 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 oppornmity 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.
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XIV. PAYMENT OF ENFORCEMENT COSTS
33. 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 incutTed by DENR to enforce this Agreement
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
34. 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:
Sharon Poissant Eckard, PG (or successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Joseph B. Williams, Manager (or successor in function)
Fifth Street Investments, LLC
211 M Carrick Road
Lexington, NC 27292-6086
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 DA TE
35. This Agreement shall become effective on the date the Prospective Develope1· signs
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it, after receiving it, signed, from DENR. Prospective Developer shall sign the Agreement
within seven (7) days following such receipt.
XVII. TERMINATION OF CERTAIN PROVISIONS
36. 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 i·equest 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 tennination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CONTRIBUTION PROTECTION
37. With regard ,to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developet· is entitled to protection from such
claims to the extent provided by N.C.G.S. § 130A-310.37(a)(5)-(6). The subject matte1· of this
Agreement is all remediation taken or to be taken and response costs inctmed or to be incurred
by DENR 01· any other person in relation to the Property.
38. 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.
39. 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.
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