19014_West Penn Hardwoods_Recorded_NBP-OCR

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CERTIFICATION OF REGISTER OF DEEDS
The foregoing documentary component of the Notice ofBrownfields Property, and the associated
plat, are certified to be duly recorded at the date and time, and in the Books and Pages, shown on the first
page hereof.
eat1wbl\..
Register of Deeds for Meclcl e11hu.r.g County
By:
Name typed or printed:
~~~~~~~~~~ Date
Deputy/Assistant Register of Deeds
0849
The resolution of this potential liability, in exchange for the benefit P AARK Properties, LLC
shall provide to DENR, is in the public interest.
II. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement which are defined in
the Act or elsewhere in N.C.G.S. 130A, Article 9 shall have the meaning assigned to them in those
statutory provisions, including any amendments thereto.
I . "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 P AARK Properties, LLC.
III. STATEMENT OF FACTS
3. The Property comprises 18.64 acres having the parcel identification number of 47-2103555.
Prospective Developer has committed itself to redevelopment for no uses other than for Light Industrial,
Warehouse, Commercial, Office, and Retail as hereinafter defined.
4. The Property is located within an industrial and commercial portion of northwestern Conover
in an area consisting of industrial warehouses and commercial businesses, and includes one parcel having
the address of 1405 Deborah Herman Road. The Property located on the south side of Deborah Herman
Road includes one building encompassing about 270,000 square feet. The building is currently occupied
by West Penn Hardwoods and a tenant, RollEase. West Penn Hardwoods imports Exotic hardwoods and
distributes them and the property is used for warehousing and marketing the hardwood product. The
exotic hardwoods are often treated with paraffin wax, and occasionally a product called Anchor Seal II (a
water-based emulsion sealant) to prevent drying and cracking of the woods prior to distribution or sale.
RollEase uses their portion of the on-site facility as a warehouse to store and redistribute window blind
components. The Property is bordered to the north by Deborah Herman Road, beyond which is another
industrial/commercial facility. Immediately adjacent to the west is another commercial facility beyond
which is wooded property and commercial/industrial operations. To the south is undeveloped scrub-
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covered property, beyond which is located Interstate 40. To the east is an adjacent commercial building,
beyond which are Simpson Street and additional commercial/industrial facilities. 0852
5. Prospective Developer obtained or commissioned the following reports, referred to hereinafter
as the "Environmental Reports," regarding the Property:
Title Prepared by Date of Report
Additional Phase 2 Environmental Site Coastal Environmental
Assessment on Former Lane Venture Plant #14, Consulting Inc. and January 6, 2015 Environmental Services 1405 Deborah Herman Road, Conover, NC & Solutions, PLLC
Phase I Environmental Site Assessment, former Leonhardt Laneventure Site, 1405 Deborah Herman Road, Environmental, P.C. October 18, 2014
Conover, NC
Groundwater Assessment, Lane Venture Plant Mountain March 25, 2013 #14, Conover, NC Environmental Group
6. For purposes of this Agreement, DENR relies on the following information from the
Prospective Developer as to use and ownership of the Property:
a. The property consists of one light industrial parcel comprising 18.64 acres in
northwestern Conover, NC. The property is bounded to the north by Deborah Herman Road, commercial
property and Simpson Street to the east, undeveloped property and Interstate 40 to the South, and
industrial/commercial property to the west. Historical development is first documented in 1969 when a 59
acre tract was developed with a 270,000 square foot light industrial facility. The on-site building has been
operated by Burlington Furniture, and then HTB Contemporary Designs which merged with Hickory
Tavern to eventually form Lane Furniture Industries in the 1990s. The facility became known as
"LaneVenture" in 2013, and the Property was subsequently operated as "LaneVenture Plant #14.
Lane Venture Plant # 14 was used to manufacture wooden outdoor furniture, and included a "waste
chemical storage room", which has been conjectured to be the source of reported on-site contaminants.
After communications with Brownfields Program Project Manager Tracy Wahl on November 24, 2014
during which P AARK Properties, LLC indicated their intent to apply to the Brownfields Program, on
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December 12, 2014 PAARK Properties, LLC purchased the Property.
b. The Property's groundwater is contaminated with chlorinated solvents at 0853
concentrations above the applicable limits. No contaminants have been documented in soil above the
residential use screening levels of DENR's Inactive Hazardous Sites Branch. Chlorinated solvents are
also noted to be a potential for vapor intrusion at concentrations in groundwater above the residential use
screening levels ofDENR's Inactive Hazardous Sites Branch.
7. The most recent environmental sampling at the Property reported in the Environmental Reports
occurred in December 2014. The following tables set forth, for contaminants present at the Property
above applicable standards or screening levels, the concentration found at each sample location and the
applicable standard or screening level. Screening levels and groundwater standards are shown for
reference only and are not set forth as cleanup levels for 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 2013 version); or the 2L Groundwater Interim Maximum Allowable
Concentration (IMACs), (April 2013 version):
Groundwater Concentration 2L Standard
Contaminant Sample Location Date of Sampling Exceeding (µg/L) Standard (ug/L)
MW-1 12/13/2014 1.2 0.6 (IMAC)
1, 1,2-Trichloroethane TMW-8 12/14/2014 2.8 0.6 (IMAC)
TMW-9 12/14/2014 4.8 0.6 (IMAC)
MW-1 12/13/2014 20.0 6.0
1, 1-Dichloroethane TMW-8 12/14/2014 46.0 6.0
TMW-9 12/14/2014 28.0 6.0
1,2-Dichloroethane TMW-8 12/14/2014 0.6 0.4
TMW-9 12/14/2014 1.1 0.4
b. No soil contaminant concentrations have been reported which exceeded the screening
levels which are derived from the Preliminary Residential Health-Based Remediation Goals of the
Inactive Hazardous Sites Branch ofDENR's Superfund Section (January 2014 version):
c. No reported groundwater contaminant concentrations had potential for vapor intrusion
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Department of Justice of all activities related to this Agreement, unless a change is sought to a Brownfield
document after it is in effect, in which case there shall be an additional fee of at least $1,000 but up to
$5,000 at DENR's discretion to cover the full cost to DENR and DOJ, or more than $5,000, if further
negotiated between the parties.
IV. BENEFITTOCOMMUNITY
11. The redevelopment of the Property proposed herein would provide the following public
benefits:
a. vacant Property will be put back into productive use;
b. an increase in the Property's productivity will occur;
c. 14 jobs will be immediately created at the Property, with plans to increase
employment to 25 employees within 24 months;
e. an increase in tax revenue for affected jurisdictions;
f. "smart growth" through use of land in an already developed area, which avoids
development of land beyond the urban fringe ("greenfields").
V. WORK TO BE PERFORMED
12. Within 30 days after the effective date of this Agreement, Prospective Developer shall
notify DENR that it is ready to effect the abandonment of all groundwater monitoring wells, injection
wells, recovery wells, piezometers and other man-made points of groundwater access at the Property in
accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code. Unless DENR
notifies Prospective Developer within 10 days of receiving such notification to refrain from such
abandonment, Prospective Developer shall, on a schedule acceptable to DENR, effect said abandonment
and, within 30 days after doing so, provide DENR a report, subject to DENR approval, setting forth the
procedures and results.
13. Based on the information in the Environmental Reports, and subject to imposition of
and compliance with the land use restrictions set forth below, and subject to Section IX of this Agreement
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(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 Environmental Management Plan (EMP) required by this Section to set forth
procedures and methodologies for evaluating and handling contaminated or potentially contaminated
environmental media (e.g., soils, groundwater, building materials, containers) during redevelopment
activities at the Property.
14. By way of the Notice of Brownfields 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 Light Industrial, Warehouse, Commercial,
Office, and Retail. For purposes of this restriction, the following definitions apply:
i. "Light Industrial" refers to the indoor assembly, fabrication or processing of
goods and materials, using processes that do not create noise, smoke, fumes, odors, glare, or health or
safety hazards outdoors, and involving outdoor storage of related goods and material that does not exceed
25 percent of the floor area of all buildings on the Property;
ii. "Warehousing" refers to use of a commercial building for storage of goods
by manufacturers, importers, exporters, wholesalers, transport businesses among others, and also refers to
the storage of goods and materials for a specific commercial establishment or a group of establishments in
a particular type of industry or commercial activity;
iii. "Commercial" refers to a business enterprise;
iv. "Office" refers to the rendering of business or professional services; and
V. "Retail" refers to the sale of goods directly to the consumer.
b. Unless compliance with this Land Use Restriction is waived in writing in advance by DENR
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in relation to particular buildings, no use of the Property buildings depicted on the plat component of the
Notice referenced in paragraph 19 below may occur except in accordance with applicable legal
requirements, including without limitation those related to lead and asbestos that are administered by the
Health Hazards Control Unit within the Division of Public Health of the North Carolina Department of
Health and Human Services.
c. Physical redevelopment of the Property may not occur other than in accord, as
determined by DENR, with an Environmental Management Plan ("EMP") approved in writing by DENR
in advance (and revised to DENR's written satisfaction prior to each subsequent redevelopment phase if
aspects of the subsequent redevelopment are not adequately addressed in the current EMP) 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:
i. soil and water management issues, including without limitation those resulting
from contamination identified in the Environmental Reports;
ii. potential sources of the contamination referenced in paragraph 7 above;
iii. surface soil sampling for any soil areas that are planned to be exposed after
the planned development, and subsurface soil sampling as required by DENR;
iv. contingency plans for addressing newly discovered potential sources of
environmental contamination (e.g., tanks, drums, septic drain fields); and
v. plans for the proper characterization of, and, as necessary, disposal of soils
excavated during redevelopment.
d. Groundwater at the Property may not be used for any purpose without the prior
written approval of DENR.
e. None of the contaminants known to be present in the environmental media at the
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Property, including those appearing in paragraph 7 of this Agreement, 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.
f. The Property may not be used for agriculture or grazing, without the prior written
approval of DENR. Trees, shrubs, and plants for landscaping do not constitute agriculture.
g. The Property may not be used as a park or for sports of any kind, including, but not
limited to, golf, football, soccer and baseball, without the prior written approval ofDENR.
h. The Property may not be used as a playground, or for child care centers or schools,
without the prior written approval of DENR.
i. 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.
j. Neither DENR, nor any party conducting environmental assessment or remediation at
the Property at the direction of, or pursuant to a permit, order or agreement issued or entered into by
DENR, may be denied access to the Property for purposes of conducting such assessment or remediation,
which is to be conducted using reasonable efforts to minimize interference with authorized uses of the
Property.
k. 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 Catawba County, certifying that, as of said January 1 si, the Notice of
Brownfields Property containing these land use restrictions remains recorded at the Catawba 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
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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
1. Any deed or other instrument conveying an interest in the Property executed by an
owner of any 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 Catawba County land records, Book 31 l Q Page '6Lf 3 . " A copy of
any such instrument shall be sent to the persons-listed in Section XVI (Notices and Submissions), though
financial figures related to the conveyance may be redacted, and such disclosure may be made subject to
the confidentiality and trade secret provisions of the North Carolina Public Records Law (to the extent
applicable).
15. 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.
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 ofDENR'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 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
18. In addition to providing access to the Property pursuant to subparagraph 14.j. above,
Prospective Developer shall provide DENR, its authorized officers, employees, representatives, and all
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other persons performing response actions under DENR oversight, access at all reasonable times to other
adjacent, contiguous, or other property controlled by Prospective Developer affecting environmental
conditions at the Property 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 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.
19. DENR has approved, pursuant to N.C.G.S. § 130A-310.35, a Notice ofBrownfields Property
for the Property containing, inter alia, the land use restrictions set forth in Section V (Work to Be
Performed) of this Agreement and a survey plat of the Property. Pursuant to N.C.G.S. § 130A-310.35(b),
within 15 days of the effective date of this Agreement Prospective Developer shall file the Notice of
Brownfields Property in the Catawba 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.
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 instrument is
subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property
recorded in the Catawba County land records, Book331D, Page?fl/3." 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.
21. The Prospective Developer shall ensure that a copy of this Agreement is provided to any
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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 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 of Brownfields 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 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.
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statutory limitations in paragraphs 24 through 26 above, apply to all of the persons listed in N.C.G.S. §
l30A-310.33, 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.
39. Future owners that request changes to any brownfields document after it is executed, shall
pay a fee consistent with the provisions of paragraph 10 above with respect to those requested changes
and thereby maintain liability protection to the same extent as the prospective developer consistent with
N.C.G.S. § l30A-310.33.
XII. 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.
XIII. 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. § l30A-310.37.
32. Except for the Land Use Restrictions set forth in paragraph 14 above and N.C.G.S. § l30A-
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.
XIV. DOCUMENT RETENTION
33. The Prospective Developer agrees to retain and make available to DENR all business and
operating records, contracts, site studies and investigations, remediation reports and documents generated
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