West Lee Shopping recorded NBP-OCR

Book 7685 Page 479
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 includes 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 11211 x 11 ",of the plat component of this Notice. The
p1at 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 Property.
Attached hereto as Exhibit C is a legal description of the Brownfi elds Property that would be sufficient as a
description of the property in an instrument 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 Property that are necessary or useful to maintain the level of protection appropriate for the
designated current or future use of the Brown fields 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 are as follows:
1. No use may be made of the Property other than for commercial purposes including
retail, grocery, restaurant, professional office, financial services, assembly hall, salon, and laundry and
dry cleaning services, which do not use chlorinated solvents, and associated parking. Unless compliance
with this restriction is waived in writing in advance by DENR in relation to particular buildings, no
residential use shall be made of the Property. For purposes of this restriction, the foHowing definitions
apply:
a. "Retail" use refers to the sale of goods, products, or merchandise directly to the
consumer.
b. "Grocery" refers to an establishment engaged in the sale of food and household
products.
c. "Restaurant" refers to an establishment where meals are prepared and served to
paying customers.
d. "Professional office" refers to a place where business or professional services are
conducted or rendered including personal, business, professional, medical, and dental offices.
e. "Financial services" includes those provided by banking, credit union, or loan
2
Book 7685 Page 480
institutions, financial management consultants, and tax management or consulting services.
f. "Assembly hall" refers to an assembly of guests or members for purposes of
worship, social events, or other civic or cultural exhibitions.
g. "Laundry and dry cleaning services" refer to pick and drop off locations for dry
cleaning, laundromat and drop·in laundry services, and dry cleaning uses that exclude the use of
chlorinated solvents such as tetrachloroethylene, also known as perchloroethylene, (PCE), and its
degradation products.
h. "Salon" ineludes shops or businesses offering a specific product or health,
cosmetic or beauty service.
i. "Parking" refers to the temporary accommodation of motor vehicles in an area
designed for same.
2. Unless compliance with this Land Use Restriction is waived in writing in advance by
DENR in relation to particular buildings, demolition of any building on the Property shall be in
accordance with applicable legal requirements, including without limitation those related to lead and
asbestos abatement that are administered by the Health Hazards Control Unit within the Division of
Public Health of the North Carolina Department of Health and Human Services.
3. Physical redevelopment of the Property may not occur other than in accord, as
determined by DENR, with an EMP prepared for each phase of redevelopment and as 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
the attached Exhibit A;
c. contingency plans for addressing newly discovered potential sources of
environmental contamination (e.g., tanks, drums, septic drain fields); and
d. a requirement for representative final grade soil sampling of any area not
planned to be covered by building foundations, sidewalks, or asphaltic or cement parking areas and
driveways to the written satisfaction of DENR.
4. Within 90 days after each one-year anniversary of the effective date of the Agreement
attached as Exhibit A for as long as each phase of physical redevelopment of the Property continues
(except that the final deadline shall fall 90 days after the conclusion of physical redevelopment of each
phase separately), the then owner of the Property shall provide DENR a report subject to written DENR
3
Book 7685 Page 481
approval on environment-related activities since the last report, with a summary and drawings, that
describes:
a. actions taken in accordance with the plan required by Land Use Restriction No. 3
above;
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, groundwater 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 Property (copies of all legally required manifests shall be
included).
5. No activities that encounter, expose, remove or use groundwater (for example,
installation of water supply wells, fountains, ponds, lakes or swimming pools, or construction or
excavation activities that encounter or expose groundwater) may occur on the Property unless and until
OENR states in writing, in advance of the proposed activity, that said activity may occur if carried out
along with any measures OENR deems necessary to ensure the Property will be suitable for the uses
specified in Land Use Restriction No. l above while fully protecting public health and the environment.
6. After conclusion of each of the separate redevelopment periods referenced in Land Use
Restriction 3 above as determined by DENR, no activity that disturbs soil on the Property may occur
unless and until OENR states in writing, in advance of the proposed activity, that said activity may occur
if carried out along with any measures OENR deems necessary to ensure the Property will be suitable for
the uses specified in Land Use Restriction No. 1 above while fully protecting public health and the
environment except: in connection with de minimis soil removals to depths not exceeding 18 inches
exterior to the footprint of Building 1, 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.
7. Permanent wells MW-A, MW-1, MW-2S, MW-2D, MW-38, MW-3D, MW-SS, MW-50,
MW;..6S, and MW-60, which are located on the Property, are required for OSCA for continued
monitoring purposes until such time OSCA determines such wells are no longer needed, and well
abandonment in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code
is conducted by OSCA or its contractors. While these wells are in service at the Property, said wells will
be protected from damage during redevelopment or other site activities and OSCA will be notified in
advance of any such planned activities. During implementation of these activities, if said activities will
compromise or damage any of the wells that are to be retained, such activities will cease in these areas,
DSCA will be notified within two (2) business days, and negotiations with the appropriate DSCA staff
will be conducted to properly abandon the wells in accordance with Subchapter 2C of Title 15A of the
North Carolina Administrative Code, or with advance OSCA approval, temporarily remove from service
4
Book 7685 Page 482
such wells in accordance with Subchapter 2C, Title 15A NCAC .Ol 13(a). If such well abandonment or
temporary removal activities are conducted by the property owner, such activities will be conducted
prior to continuing with redevelopment activities in those areas, on a schedule acceptable to DSCA, and,
within 30 days after doing so, provide DSCA a report, to DSCA's satisfaction, setting forth the
procedures and results.
8. No enclosed building may be constructed on the Property described on the plat
component of the Notice of Brownfields Property referenced in paragraph 21 of Exhibit A hereto
attached until:
a. it is demonstrated, pursuant to a DENR approved plan, and subject to DENR's
written approval, that the building would be or is sufficiently distant from the Property's groundwater
and/or soil contamination that the building's users, public health and the environment will be protected
from risk from vapor intrusion related to said contamination; or
b. a plan for a vapor intrusion mitigation system, approved in writing by DENR in
advance and including a proposed performance assessment for demonstration of the system's protection
of the building's users, public health and the environment from risk from vapor intrusion, is
implemented to the satisfaction of a North Carolina-licensed professional engineer as reflected by an
implementation report, bearing the seal of said engineer, that includes photographs and a description of
the installation and performance assessment of the mitigation system.
9. None of the contaminants known to be present in the environmental media at the
Property, including those appearing in paragraph 7 of Exhibit A hereto attached, may be used or stored
at the Property, including as spotting agents in the dry cleaning process, without the prior written
approval of DENR, except in de minim is amounts for routine housekeeping activities; in stored fuels for
use in emergency generators in locations in which releases from these storage areas would be
distinguishable with certainty from the subject contaminants from any known release at the property
that predates this Agreement; or as components in sealed, pre-packaged containers sold in a retail
context in connection with uses permitted under this Agreement.
10. The use of petroleum hydrocarbons in onsite dry cleaning operations shall comply with
DENR rules regarding operation of such businesses as cited in N.C.G.S. 143-215.104; Title 15A NCAC
Subchapter 2S, Rules and Criteria for the Administration of the Dry-Cleaning Solvent Cleanup Fund;
and federal regulations 40 Code of Federal Regulations (CFR) Part 60 (Subpart JJJ), Standards of
Performance for Petroleum Drycleaners; and 40 CFR Part 260-262, Hazardous Waste Management
Regulations.
11. Known or future discoveries of petroleum UST release(s) at the Property shall be
addressed to the satisfaction of DENR.
12. The Property may not be used for agriculture or grazing.
13. The owner of any portion of the Property where any existing, or subsequently installed,
DENR-approved monitoring well is damaged by the actions or omissions of such owner, or by its
employees, contractors, tenants, or agents shall be responsible for repair of any such wells to DENR's
5
Book 7685 Page 483
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.
14. 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.
15. During January of each year after the year in which the Notice referenced in
paragraph 20 of Exhibit A 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 Guilford County, certifying that, as of said January 1st, the Notice
of Brown fields Property containing these land use restrictions remains recorded at the Guilford 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; and
c. whether any vapor barrier and/or mitigation systems installed pursuant to Land
Use Restriction No. 7 above are performing as designed, and whether the uses of the ground floors of any
buildings containing such vapor barrier and/or mitigation systems have changed, and, if so, how.
For purposes of the land use restrictions set forth above, the DENR point of contact shall be the DENR
official referenced in paragraph 35.a. of Exhibit A hereto, at the address stated therein.
ENFORCEMENT
The above land use restrictions shall be enforceable without regard to lack of privity of estate or contract,
lack of benefit to particular land, or lack of any property interest in particular land. The land use restrictions shall be
enforced by any owner of the Brownfields Property. The land use restrictions may also be enforced by DENR
through the remedies provided in NCGS 130A, Article 1, Part 2 or by means of a civil action; by any unit of local
government havingjurisdiction over any part of the Brownfields Property; and by any person eligible for liability
protection under the Brownfields Property Reuse Act who will lose liability protection if the restrictions are violated.
Any attempt to cancel any or all of this Notice without the approval of the Secretary ofDENR (or its successor in
function), or his/her delegate, shall be subject to enforcement by DENR to the full extent of the law. Failure by any
party required or authorized to enforce any of the above restrictions shall in no event be deemed a waiver of the right
to do so thereafter as to the same violation or as to one occurring prior or subsequent thereto.
6
Book 7685 Page 485
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.
Register of Deeds for ________ County
By:
Name typed or printed: Date
Deputy/Assistant Register of Deeds
8
Book 7685 Page 486
EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
IN THE MATIER OF: Weidl Properties II, LLC
UNDER THE AUTHORITY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, N.C.O.S. § 130A-310.30, et seq.
Brownfields Project# 16004-12-041
)
)
)
)
I. INTRODUCTION
BROWNFIELDS AGREEMENT re:
West Lee Street Shopping Center
801-829 West Lee Street
Greensboro, Guilford County
This Brownfields Agreement ("Agreement") is entered into by the North Carolina
Department of Environment and Natural Resources ("DENR") and Weidl Properties II, LLC
(collectively the "Parties") pursuant to the Brownfields Property Reuse Act of 1997, N.C.G.S. §
130A-3 I 0.30, et~· (the "Act").
Weidl Properties II, LLC is a member-managed property management company that is
fully owned by Robert Weidl, an individual. The company's address on record is 3574
Yadkinville Road, No. 172, Winston Salem, North Carolina 27106. The candidate Brownfields
property is a commercial shopping center located at 801-829 West Lee Street, Greensboro, North
Carolina (parcel identification number 00580001). The shopping center is in close proximity to
the University of North Carolina, Greensboro (UNCG) campus and is adjacent to an area for
which UNCG is actively redeveloping. A map showing the location of the property which is the
subject of this Agreement is attached hereto as Exhibit 1.
The Parties agree to undertake all actions required by the terms and conditions of this
Agreement. The purpose of this Agreement is to settle and resolve, subject to reservations and
limitations contained in Section VIII (Certification), Section IX (DENR's Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
BFA West Lee Street
Book 7685 Page 488
beyond, and to the west by Silver Run A venue with commercial automotive repair and service
shop beyond.
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
Underground Storage Tank Closure
Assessment, One 280 Gallon Pyramid Environmental, Inc. October 9, 1996
Waste/Cooking Oil Tank
Notice of Violation ofNCAC Title
lSA Subchapter 2L Classifications NC DEHNR, Division of Water and Water Quality Standards November 5, 1996
Applicable to the Groundwaters of Quality, Groundwater Section
North Carolina
Comprehensive Site Assessment Pyramid Environmental, Inc. January 27, 1997 Report
Notice of Violation ofNCAC Title
15A Subchapter 2L Classifications NC DEHNR, Division of Water and Water Quality Standards Quality, Groundwater Section February 18, 1997
Applicable to the Groundwaters of
North Carolina
Letter to W &C Investments re: 801 NC DEHNR, Winston-Salem West Lee Street & 829 West Lee March 4, 1997
Street Regional Office
Letter to W &C Investments re 801 NC DEHNR, Division of Water March 12, t 997 West Lee Street Quality, Groundwater Section
Well Results for W &C Investments Pyramid Environmental, Inc. April 15, 1997 Site at 801 West Lee Street
Corrective Action Plan, 829 West Pyramid Environmental, Inc. April 10, 1997 Lee Street
Notice of Violation of NCAC Title
15A Subchapter 2L Classifications DEHNR, Division of Water and Water Quality Standards Quality, Groundwater Section May 13, 1997
Applicable to the Groundwaters of
North Carolina
Notice of Regulatory Requirements NCDENR, Division of Waste for Contaminant Assessment & Management November 13, 2008
Cleanup
BFA West Lee Street 3
Book 7685 Page 489
Title Prepared by Date of Report
Letter Re: Dry-Cleaning Solvent
Contamination, 829 West Lee NCDENR, Division of Waste December 29, 2008 Street, Greensboro, Guilford Management
County
North Carolina Division of Waste
Management, Dry Cleaning Solvent NC Division of Waste March 14, 2011 Cleanup Compliance Program, Management, DSCA
Initial Insnection Report
Phase I and II Environmental Site
Assessment, 801-829 W. Lee EnviroAssessments November 17, 2011
Street, Greensboro
Proposed Sub-Slab Soil Gas
Sampling Work Plan, West Lee ECS Carolinas, LLP March 20, 2014 Street Shopping Center, 801-829
West Lee Street, Greensboro
Soil Gas Sampling Report
(Revised), West Lee Shopping ECS Carolinas, LLP June 23, 2014 Center, 801-829 West Lee Street,
Greensboro
In addition, information about the Property was obtained from environmental records
available through the NC DENR Drycleaning Solvent Cleanup Act (DSCA) program:
Title Prepared by Date of Report
Prioritization Assessment Report, The
Cleaners, Greensboro, Guilford County, , Hart & Hickman, PC December 13, 2013
DSCA ID No. 41-0035
Additional Assessment Report, The Cleaners,
Greensboro, Guilford County, DSCA ID No. Hart & Hickman, PC September 19, 2014
41-0035
Vapor Intrusion Assessment Report, The
Cleaners, Greensboro, Guilford County, Hart & Hickman, PC September 22,2014
DSCA ID No. 41-0035
6. For purposes of this Agreement, DENR relies on the following representations by
Prospective Developer as to use and ownership of the Property:
BFA West Lee Street 4
Book 7685 Page 490
a. The Property is developed as a conunercial retail shopping center known as the
Shops on Lee, and is comprised of three single-story structures with concrete slab-on grade
foundations, an asphalt parking lot and driveways, and small landscaped areas. Building 1 (829
West Lee Street), located parallel to Silver Avenue on the western portion of the Property, was
constructed in 1960, and Buildings 2 (815 -825 West Lee Street) and 3 (801 West Lee Street),
located along the southern and eastern boundaries of the Property, respectively, were constructed
in 1996.
b. Building 1 is approximately 2,720 square feet in area and is leased to a tenant
that has historically conducted dry cleaning at the Property since 1960 (The Cleaners). The
drycleaning operations at this location are a known source ofperchloroethylene (PCE)
contamination to the subsurface. Since February 2012, this portion of the Property has been
subject to a Drycleaning Solvent Cleanup Act (DSCA) agreement and is being actively assessed
by NC DENR DSCA staff (DSCA ID 41-0035). DSCA has installed and sampled several soil
borings, monitoring wells, and soil gas sampling points as part of their investigation on the
Property in addition to conducting ground penetrating radar survey to evaluate the presence of
W1derground storage tanks at the Property. DSCA is also assessing the extent of groundwater
contamination from the Property that has migrated offsite primarily to the north.
c. Building 2 is approximately 7,744 square feet and is subdivided into several
tenant spaces that are currently or most recently have been utilized for restaurant, hair salon, and
worship center uses. A historical Sanborn Map from 1950 indicates that an electrical plating
operation was located in the southern portion of the Property addressed as 821 West Lee Street at
that time. A rug cleaning facility was located in the same portion of the Property circa 1925;
BFA West Lee Street 5
Book 7685 Page 491
note that the Property addresses ran from 707 to 805 West Lee Street at that time. City directory
information indicates that site operations included Standard Metal Fabricators at 829 West Lee
Street in the early 1960s through 1971.
d. Building 3 is approximately 8,262 square and has been subdivided into several
tenant spaces including a food mart, health services, tax services, and retail food tenants.
Building 3 formerly was the site of an abandoned underground storage tank, which was removed
in 1996. Historical Sanborn Fire Insurance maps indicate that an automotive garage was located
in the northeastern area of the Property at least through the 1950s. Monitoring well MW-A was
installed near the footprint of Building 3 on April 1, 1997 to address an underground storage tank
incident stemming from the discovery ofa waste oil tank at the site (UST Incident #16435). A
280-gallon waste/cooking oil UST was removed from the northeast portion of the Property in
July 1996. Based on the detection of petroleum hydrocarbons in groundwater above North
Carolina groundwater standards from well MW-A installed in 1996, DENR issued a Notice of
Violation on May 13, 1997.
e. Environmental investigations at the Property include a 1996 subsurface
assessment including the installation of ten monitoring wells (MW-1 through MW-9 and MW·A)
conducted by a previous Property owner; a 2011 Phase I and II Environmental Site assessment in
which additional groundwater samples were collected from six Geoprobe locations (GW-1 -
OW-6 and from existing well MW-A); and the DSCA investigations conducted in 2013 and
2014. Chlorinated solvent contamination in excess of State 2L standards was first identified in
onsite groundwater during the 1996 investigation (DENR Incident# 16894), and has been
confinned through subsequent investigations. Petroleum hydrocarbon contamination was
BF A West Lee Street 6
Book 7685 Page 492
detected in well MW-A in 1996, but was not detected when the well was resampled in 2011.
f. DENR issued a Notice of Violation op. February 18, 1997 due to the chlorinated
solvent contamination discovered at the Property. A Corrective Action Plan prepared by
Pyramid Enviromnental (April 10, 1997) recommended natural attenuation and periodic
monitoring of groundwater.
g. A Notice of Regulatory Requirement was issued to the Property owner on
November 13, 2008 by DENR's Inactive Hazardous Sites Branch requesting a Site Cleanup
Questionnaire and that initial abatement actions be taken regarding the dry cleaning solvent
contamination (IHSB No. NONCD0002680).
h. DENR offered to two fonner owners of the Property, Schwartz Properties, LLC
and W & C Investments, LLC the opportunity to enter the DSCA Program (DSCA #41-0035) in
December 29, 2008. Reportedly Schwartz Properties, LLC did not respond and W&C
Investments, LLC declined the offer. Subsequently DSCA referred the Property back to the
IHSB Program.
i. The DSCA Program completed a dry cleaning compliance inspection of The
Cleaners at the Property on December 17, 2007 where a number of violations were reported
including lack of spill containment and documentation violations. An inspection on March 22,
2011 resulted in two Notice of Violations; one for failure to utilize proper spill containment and
the second for failure to maintain PCE purchase receipts.
j. Nine of the monitoring wells installed at the Property in 1996 have been
abandoned. Well MW-A from the 1997 investigation and the pennanent wells from the 2013
investigation remain at the Property.
BFA West Lee Street 7
Book 7685 Page 493
k. Previous owners from the early 1900s through 1970 were principally individual
owners with the exception of Standard Oil in the 1920s, Vuncannon Plumbing & Mechanical,
Inc. in 1991, and Faron Associates in 1985. Faron Associates sold their portion of the Property
to W & C Investments, LP in 1987. W &C Investments acquired four parcels from individuals
and combined them in 1987 to comprise the Brownfields Property. W&C Investments, LLC sold
the Property to Schwarz Properties, LLC in 2006. First Community Bank acquired in 2011 and
sold the Property to Weidl Properties II, LLC in March 2012.
7. The most recent environmental sampling at the Property reported in the
Environmental Reports occurred on July 30, 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 l 5A of the North Carolina Administrative
Code, Subchapter 2L, Rule .0202 (2L), (April 1, 2013 version); or the 2L Groundwater Interim
Maximum Allowable Concentration (IMACs), (April 1, 2013 version):
Date of Maximum Date of
Groundwater Sample Sampling Concentration Sampling Most Recent Standard Exceeding Concentration Contaminant Location Maximum Standard Most Recent (µg/L) (µg/L)
Concentration (uwL) Concentration
MW-SS 9/20/2013 0.67 8/14/2014 <0.5
Bromodichloro-MW-SD 9/20/2013 0.72 8/14/2014 <0.5 0.6 methane MW-6S 9/20/2013 0.74 8/14/2014 <0.5
BFA West Lee Street 8
Book 7685 Page 494
Date of Maximum Date of
Groundwater Sample Sampling Concentration SampJing Most Recent
Exceeding Concentration Contaminant Location Maximum Standard Most Recent (µg/L) Concentration (µg/L) Concentration
Bromodichloro-MW-60 1.5 8/14/2014 <0.5 methane 9/20/2013
MW-3S 9/20/2013 6.1 8/14/2014 <0.5
MW-30 9/20/2013 1.7 8/14/2014 <0.5 1, 1,2,2-Tetra-MW-SD 9/20/2013 3.4 8/14/2014 <0.5 chloroethane
MW-68 9/20/2013 1.5 8/14/2014 <0.5
MW-60 9/20/2013 1.7 8/14/2014 <0.5
GW-3 1 l/28/2011 20.1 11128/2011 20.1
GW-5 11/28/2011 10.1 11/28/2011 10.l
GW-6 11/28/2011 4.4 11/28/2011 4.4
MW-1 1 7/15/1996 368:l 81211996 95.5
MW-2 8/2/1996 99.4 81211996 99.4
MW-4 8/2/1996 1.12 8/2/1996 1.12
MW-5 8/16/1996 32.7 8/16/1996 32.7
MW-7 911011996 440 9/10/1996 440
MW-1 1 9/20/2013 82 8/14/2014 59
Tetrachloro-MW-28 9/20/2013 130 8/14/2014 110
ethylene MW-20 8/14/2014 490 8/14/2014 490
MW-3D 8/14/2014 1.7 8/14/2014 1.7
MW-6D 9/20/2013 4.7 8/14/2014 <0.5
TW-50 8/28/2013 6.2 8/28/2013 6.2
TW-68 8/28/2013 I.OJ 8/28/2013 I.OJ
TW-60 8/28/2013 130 8/28/2013 130
TW-78 8/28/2013 7.4 8/28/2013 7.4
TW-70 8/28/2013 24.1 8/28/2013 24.1
TW-8S 8/28/2013 140 8/28/2013 140
TW-80 8/28/2013 160 8/28/2013 160
l Well MW-lmstalled and sampled m 1996 was abandoned earlier and 1s a different from the
well MW-1 installed by DSCA during the 2013 investigation.
2 Analytical method EPA Method 601; other 1996 results from EPA Method 624.
b. Soil contaminants in milligrams per kilogram (the equivalent of parts per
million), the screening levels for which are derived from the Preliminary Industrial Health-Based
BF A West Lee Street 9
Standard
(µg/L)
0.6
0.2
0.7
Book 7685 Page 495
Remediation Goals of the Inactive Hazardous Sites Branch of DENR's Superfund Section
September 2014 version):
Soil
Contaminant
Total Petroleum
Hydrocarbons
Sample
Location
S-1
Depth
(ft)
5
Date of
Sampling
7/16/1996
Concentration
Exceeding
Screening
Level (mg/kg)
7,710
Industrial
Health-Based
Soil
Remediation
Goal1
(mg/kg)
0.34-6,600
1 The total petroleum hydrocarbon range for industrial health-based soil remediation goals is
provided as the Total Petroleum Hydrocarbon concentration obtained in 1996 was not performed
with the specific analytical test to further refine the specific soil remediation goal to be used with
a particular contaminant range.
c. Groundwater contaminants with potential for vapor intrusion (VI) in
micrograms per liter (the equivalent of parts per biJlion), the vapor intrusion screening levels for
which are derived from the Non-Residential Vapor Intrusion Screening Levels ofDENR's
Division of Waste Management (June 2014 version):
Groundwater Sample Date of Concentration Non-
Contaminant Location Sampling Exceeding Residential VI
With Potential for Screening Screening
Vapor Intrusion (VI) Level (µg/L) Level1
(uw'L)
MW-1 9/20/2013 82
MW-1 8/14/2014 59
MW-2S 9/2012013 130
MW-2S 8/14/2014 110
Tetrachloroeth)'.lene MW-2D 9/20/2013 310 48.4
MW~2D 8/14/2014 490
TW-6D 8/28/2013 130
TW-8S 8/28/2013 140
TW-8D 8/2812013 160
I Screenmg levels displayed for non-carcmogens are for a hazard quotient equal to 0.2. Screening
levels displayed for carcinogens are for a 1.0E-5 lifetime incremental cancer risk.
BFA West Lee Street 10
Book 7685 Page 496
d. Soil gas or sub-slab vapor contaminants in micrograms per cubic meter of air,
the screening levels for which are derived from the Non-Residential Vapor Intrusion Screening
Levels of DENR's Division of Waste Management (June 2014 version), and for comparison
purposes only, the Residential Vapor Intrusion Screening Levels ofDENR's Division of Waste
Management (June 2014 version):
Non-Residential
Soil Gas or Concentration Residential VI
Sub-Slab Vapor Sample Sample Depth Date of Exceeding VI Screening
Contaminant Location (ft bgs) Sampling Screening Screening Level 1
Level (µglm3) Level' (µg/m3) (u.g/m3)
Cis-1,2-SG-2 28 9/3/2013 210 NE NE Dichloroethylene SG-3 27 9/4/2013 7.8
SG-1 28 9/3/2013 420
SG-2 28 9/3/2013 1,300
Tetrachloroethylene SG-2A 2 in. below 4/15/2014 740 3,500 278 slab
SSSG-1 2 in. below 7/14/2014 2,400E2
slab
Trans-1,2-SG-2 28 9/3/2013 31 NE NE Dichloroethvlene
Trichloroethylene SG-2 28 9/3/2013 170 175 13.9
I Sotl gas concentrations did not exceed their respective non-residential screenmg levels of
DENR's Division of Waste Management (June 2014 version) in those samples in which
contaminants were detected. The concentrations of tetrachloroethylene and trichloroethylene
detected in soil gas collected below Building 1 (The Cleaners), and the concentration of
tetrachloroethylene in soil gas collected below Building 2 in 2014 exceeded their respective
Residential Vapor Intrusion Screening Levels of DENR's Division of Waste Management (June
2014 version).
2 E refers to the analytical laboratory footnote for this data point, which states that the "Reported
result is estimated. Value reported over verified calibration range."
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
BFA West Lee Street 11
Book 7685 Page 498
requirements.
10. Prospective Developer has paid to DENR the $2,000 fee to seek a brownfields
agreement required by N.C.G.S. § 130A-310.39(a)(l), and shall make a payment to DENR of
$3,500 at the time Prospective Developer and DENR enter into this Agreement, defined for this
purpose as occurring no later than the last day of the public comment period related to this
Agreement. The Parties agree that such fees will suffice as the $2,000 fee to seek a brownfields
agreement required by N.C.G.S. § 130A-310.39(a)(l), and, within the meaning ofN.C.G.S. §
130A-3 l 0.39( a)(2), the full cost to DENR and the North Carolina Department of Justice of all
activities related to this Agreement, 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.
IV. BENEFIT TO COMMUNITY
11. The redevelopment of the Property proposed herein would provide the following
public benefits:
a. an increase in the Property's productivity;
b. a spur to additional community redevelopment, through improved
neighborhood appearance and otherwise;
c. the creation of approximately 25 new jobs;
d. an increase in tax revenue for affected jurisdictions;
e. additional retail, grocery, restaurant, and professional office space for the area;
and
f. "smart growth" through use of land in an already developed area, which avoids
development of land beyond the urban fringe ("greenfields").
BFA West Lee Street 13
Book 7685 Page 499
V. WORK TO BE PERFORMED
I 2. Remediation activities for affected onsite and offsite environmental media stemming
from releases from former dry cleaning operations conducted at the Property are the
responsibility of the DENR's DSCA Program pursuant to the Dry-Cleaning Act of 1997 (NCGS
143-215.104), and will be conducted by DSCA or its approved contractors in accordance with its
rules, regulations, policies, and guidance.
13. In redeveloping the Property, Prospective Developer shall make reasonable efforts to
apply sustainability principles at the Property, using the nine (9) areas incorporated into the U.S.
Green Building Council Leadership in Energy and Environmental Design certification program
(Sustainable Sites, Water Efficiency, Energy & Atmosphere, Materials & Resources, Indoor
Environmental Quality, Locations & Linkages, Awareness & Education, Innovation in Design
and Regional Priority), or a similar program.
14. Based on the information in the Environmental Reports, and subject to imposition of
and compliance with the land use restrictions set forth below, and subject to Section IX of this
Agreement (DENR's Covenant Not to Sue and Reservation of Rights), DENR is not requiring
Prospective Developer to perform any active remediation at the Property other than remediation
that may be required pursuant to a DENR-approved Environmental Management Plan (EMP)
required by this Section.
15. By way of the Notice of Brownfields 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
BFA West Lee Street 14
Book 7685 Page 500
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 purposes
including retail, grocery, restaurant, professional office, financial services, assembly hall, salon,
and laundry and dry cleaning services, which do not use chlorinated solvents, and associated
parking. Unless compliance with this restriction is waived in writing in advance by DENR in
relation to particular buildings, no residential use shall be made of the Property. For purposes of
this restriction, the following definitions apply:
i. "Retail" use refers to the sale of goods, products, or merchandise
directly to the consumer.
ii. "Grocery" refers to an establishment engaged in the sale of food and
household products.
iii. "Restaurant" refers to an establishment where meals are prepared and
served to paying customers.
iv, "Professional office" refers to a place where business or professional
services are conducted or rendered including personal, business, professional, medical, and
dental offices.
v. "Financial services" includes those provided by banking, credit union,
or loan institutions, financial management consultants, and tax management or consulting
services.
vi."Assembly hall" refers to an assembly of guests or members for
purposes of worship, social events, or other civic or cultural exhibitions.
BFA WestLeeStreet 15
Book 7685 Page 501
vii. "Laundry and dry cleaning services" refer to pick and drop off
locations for dry cleaning, laundromat and drop-in laundry services, and dry cleaning uses that
exclude the use of chlorinated solvents such as tetrachloroethylene, also known as
perchloroethylene, (PCE), and its degradation products.
viii. "Salon" includes shops or businesses offering a specific product or
health, cosmetic or beauty service.
ix. "Parking" refers to the temporary accommodation of motor vehicles in
an area designed for same.
b. Unless compliance with this Land Use Restriction is waived in writing in
advance by DENR in relation to particular buildings, demolition of any building on the Property
shall be in accordance with applicable legal requirements, including without limitation those
related to lead and asbestos abatement that are administered by the Health Hazards Control Unit
within the Division of Public Health of the North Carolina Department of Health and Human
Services.
· c. Physical redevelopment of the Property may not occur other than in accord, as
determined by DENR, with an EMP prepared for each phase of redevelopment and as 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 ofredevelopment phases, and
addresses health, safety and envirorunental 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
BFA West Lee Street 16 •
Book 7685 Page 502
resulting from contamination identified in the Environmental Reports;
ii. issues related to potential sources of contamination referenced in
paragraph 7 above;
iii. contingency plans for addressing newly discovered potential sources of
environmental contamination (e.g., tanks, drums, septic drain fields); and
iv. a requirement for representative final grade soil sampling of any area
not planned to be covered by building foundations, sidewalks, or asphaltic or cement parking
areas and driveways to the written satisfaction of DENR.
d. Within 90 days after each one-year anniversary of the effective date of this
Agreement for as long as each phase of physical redevelopment of the Property continues
(except that the final deadline shall fall 90 days after the conclusion of physical redevelopment
of each phase separately), the then owner of the Property shall provide DENR a report 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 16.c
above;
ii. soil grading and cut and fill actions;
iii. methodology(ies) employed for field screening, sampling and
laboratory analysis of environmental media;
iv. stockpiling, containerizing, decontaminating, treating, handling,
laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected
or confirmed to be contaminated with regulated substances; and
BFA West Lee Street 17
Book 7685 Page 504
5S, MW-5D, MW-6S, and MW-6D, which are located on the Property, are required for DSCA
for continued monitoring purposes until such time DSCA detennines such wells are no longer
needed, and well abandonment in accordance with Subchapter 2C of Title l 5A of the North
Carolina Administrative Code is conducted by DSCA or its contractors. While these wells are in
setvice at the Property, said wells will be protected from damage during redevelopment or other
site activities and DSCA will be notified in advance of any such planned activities. During
implementation of these activities, if said activities will compromise or damage any of the wells
that are to be retained, such activities will cease in these areas, DSCA will be notified within two
(2) business days, and negotiations with the appropriate DSCA staff will be conducted to
properly abandon the wells in accordance with Subchapter 2C of Title ISA of the North Carolina
Administrative Code, or with advance DSCA approval, temporarily remove from service such
wells in accordance with Subchapter 2C, Title l 5A NCAC .Ol l3(a). If such well abandonment
or temporary removal activities are conducted by the property owner, such activities will be
conducted prior to continuing with redevelopment activities in those areas, on a schedule
acceptable to DSCA, and, within 30 days after doing so, provide DSCA a report, to DSCA's
satisfaction, setting forth the procedures and results.
h. No enclosed building may be constructed on the Property described on the pJat
component of the Notice of Brownfields Property referenced in paragraph 21 below until:
i. it is demonstrated, pursuant to a DENR approved plan, and subject to
DENR's written approval, that the building would be or is sufficiently distant from the
Property's groundwater and/or soil contamination that the building's users, public health and the
environment will be protected from risk from vapor intrusion related to said contamination; or
BFA West Lee Street 19
Book 7685 Page 505
ii. a plan for a vapor intrusion mitigation system, approved in .writing by
DENR in advance and including a proposed performance assessment for demonstration of the
system's protection of the building's users, public health and the environment from risk from
vapor intrusion, is implemented to the satisfaction of a North Carolina-licensed professional
engineer as reflected by an implementation report, bearing the seal of said engineer, that includes
photographs and a description of the installation and performance assessment of the mitigation
system.
i. None of the contaminants known to be present in the environmental media at
the Property, including those appearing in paragraph 7 above, may be used or stored at the
Property, including as spotting agents in the dry cleaning process, without the prior written
approval of DENR, except in de minimis amounts for routine housekeeping activities; in stored
fuels for use in emergency generators in locations in which releases from these storage areas
would be distinguishable with certainty from the subject contaminants from any known release at
the property that predates this Agreement; or as components in sealed, pre-packaged containers
sold in a retail context in connection with uses permitted under this Agreement.
j. The use of petroleum hydrocarbons in onsite dry cleaning operations shall
comply with DENR rules regarding operation of such businesses as cited in N.C.G.S. 143·
215.104; Title ISA NCAC Subchapter 28, Rules and Criteria for the Administration of the Dry-
Cleaning Solvent Cleanup Fund; and federal regulations 40 Code of Federal Regulations (CFR)
Part 60 (Subpart JJJ), Standards of Performance for Petroleum Drycleaners; and 40 CFR Part
260·262, Hazardous Waste Management Regulations.
k. Known or future discoveries of petroleum UST release(s) at the Property shall
BFA West Lee Street 20
Book 7685 Page 509
Brownfields Property recorded in the Guilford 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 financiaJ 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 sublessee on the Property within seven days of the effective date of this
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 Perfonned)
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 handled at the Property and shall comply with an
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. land 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.
BF A West Lee Street 24
Book 7685 Page 510
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
Brown fields Property Application dated February 23, 2012, by which it applied for this
Agreement. That use is redevelopment for no uses other than commercial purposes including
retail sales, grocery, restaurant, professional office, laundry and dry cleaning services which do
not use chlorinated solvents, financial services, and associated parking. 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
BF A West Lee Street 25
Book 7685 Page 512
required to make the Property fully protective of public health and the environment as planned in
this Agreement.
g. The Department obtains new infonnation 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.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under N.C.G.S. l30A-3 I0.35.
26. Except as may be provided herein, DENR reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
27. This Agreement does not waive any applicable requirement to obtain a pennit,
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~.
28. Consistent with N.C.G.S. § 130A-310.33, 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 I0.33, 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
BFA West Lee Street 27
Book 7685 Page 513
•
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.
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 puipose, 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 16 above and N.C.G.S. §
130A-310.33(a)(1)-(S)'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 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
BF A West Lee Street 28
Book 7685 Page 514
'
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 infonnation.
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 Perfonned), 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 infonnation, 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:
BFA West Lee Street
Robert Weidl, President
Weidl Properties II, LLC
3574 Yadkinville Road, #172
Winston-Salem, NC, 27106
29