17002_Toomey Ave PC Approval Package 20170428

From:Minnich, Carolyn
To:Stukes, Mary Katherine H. ([e-mail]); Paterson, Fern A.([e-mail]); Frank Horne, Jr. ([e-mail])
Subject:17002 Toomey Ave Approval to Proceed to Public Comment
Date:Wednesday, April 26, 2017 10:35:00 AM
Attachments:17002_Toomey Ave SNI 20170426.docx
17002 Toomey NI 20170426.docx
17002_Toomey Approval to PC package.pdf
image003.png
Dear Mary Katherine and Frank:
Based on acceptance by the Prospective Developer of drafts of all four required brownfieldsdocuments -- the Notice of Intent to Redevelop a Brownfields Property (NI), Summary of Notice of
Intent to Redevelop a Brownfields Property (SNI), Notice of Brownfields Property (NBP) and the
Brownfields Agreement (Exhibit A to the NBP) -- and DEQ's approval of the plat component of theNBP, Prospective Developer may now proceed to the tasks required by NCGS § 130.310.34(a) inconnection with the required public notice and comment period of at least 30 days regarding the
subject brownfields project. Those tasks are as follows:
1. Publish the approved SNI in a newspaper of general circulation serving the area in which thebrownfields property is located,
2. Conspicuously post a copy of the SNI at the brownfields property,
3. Mail or deliver the SNI to each owner of property contiguous to the brownfields property,
4. Provide a copy of the full NI to the local location where it will be available for public review asstated in the SNI, and
5. Provide a copy of the full NI, consisting of the one-page NI and the NBP with its three exhibits
(the Brownfields Agreement, the survey plat, and the legal description), to all local governments
having jurisdiction over the brownfields property.
Pursuant to NCGS § 130.310.34.(b), the public comment period shall begin following completion ofthe above tasks. The NI and SNI, with a date filled in representing our belief as to how long it
will take you to complete those tasks by Friday, April 28, are attached hereto. The comment
period shall not end any sooner than 30 days after you complete the tasks.
NCGS § 130.310.34(b) also requires the Prospective Developer to submit documentation of thepublic notices to DEQ prior to DEQ entering into a Brownfields Agreement. That documentation
shall be submitted by promptly providing to me, preferably at [e-mail] or at
Brownfields Program, 1646 Mail Service Center, Raleigh, NC 27699-1646, the following:
· Affidavit of publication of the SNI from the newspaper or a copy of the SNI published in
the newspaper which shows the name of the newspaper and the date of publication,
· Photos of the SNI posted at the site, one close up to show the wording and one far enough to
show the posting location relative to the property,
· Copies of the cover letters and copies of the mailing receipts stamped by the post office or
copies of the delivery service receipts for the SNI sent to contiguous property owners,
· A letter confirming receipt of the full NI from each local government entity and the entity
where the document will be available for viewing or delivery confirmation from the carrierconfirming such receipt by these entities.
Thank you for your attention to these matters. If you have any questions or require additional
information, you may contact me.

Carolyn Minnich
Brownfields Project Manager
Division of Waste Management
Department of Environmental Quality

704 661 0330 office/mobile
[e-mail]

1646 Mail Service Center
Raleigh, NC 27699-1646

Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.

17002-13-060/Toomey Ave DRAFT 20170426

1
NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Site Name: Toomey Avenue Property
Brownfields Project Number: 17002-13-060

North Carolina’s Brownfields Property Reuse Act (the “Act”), North Carolina General Statutes
(“NCGS”) § 130A-310.30 through 130A-310.40, provides for the safe redevelopment of properties that
may have been or were contaminated by past industrial and commercial activities. One of the Act’s
requirements is this Notice of Intent to Redevelop a Brownfields Property approved by the North
Carolina Department of Environmental Quality (“DEQ”). See NCGS § 130A-310.34(a). The Notice of
Intent must provide, to the extent known, a legal description of the location of the brownfields property, a
map showing the location of the Brownfields Property, a description of the contaminants involved and
their concentrations in the media of the Brownfields Property, a description of the intended future use of
the Brownfields Property, any proposed investigation and remediation, and a proposed Notice of
Brownfields Property prepared in accordance with NCGS § 130A-310.35. The party (”Prospective
Developer”) who desires to enter into a Brownfields Agreement with DEQ must provide a copy of this
Notice to all local governments having jurisdiction over the Brownfields Property. The proposed Notice
of Brownfields Property for a particular brownfields project is attached hereto; the proposed
Brownfields Agreement, which is attached to the proposed Notice of Brownfields Property as Exhibit A,
contains the other required elements of this Notice. Written public comments may be submitted to DEQ
within 30 days after the latest of the following dates: the date the required summary of this Notice is (1)
published in a newspaper of general circulation serving the area in which the Brownfields Property is
located, (2) conspicuously posted at the Brownfields Property, and (3) mailed or delivered to each owner
of property contiguous to the Brownfields Property. Written requests for a public meeting may be
submitted to DEQ within 21 days after the period for written public comments begins. Those periods will
start no sooner than Friday , April 28, 2017, and will end on the later of: a) 30 and 21 days, respectively,
after that; or b) 30 and 21 days, respectively, after completion of the latest of the three (3) above-
referenced dates. All comments and meeting requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environmental Quality
1646 Mail Service Center
Raleigh, North Carolina 27699-1646

17002-13-060/Toomey Ave (DRAFT 20170420)
1
Property Owner: The Horne Company Partners, LLC
Recorded in Book ____, Page ____
Associated plat recorded in Plat Book ____, Page ____

NOTICE OF BROWNFIELDS PROPERTY
Site Name: Toomey Avenue Property
Brownfields Project Number: 17002-13-060

This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat
component, have been filed this _____ day of __________________, 201__ by The Horne Company
Partners, LLC (“Prospective Developer”).

This Notice concerns contaminated property.

A copy of this Notice certified by the North Carolina Department of Environmental Quality
(“DEQ”) 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 (“NCGS”), § 130A-310.35(b).

This Notice is required by NCGS § 130A-310.35(a), in order to reduce or eliminate the danger to
public health or the environment posed by environmental contamination at a property (“Brownfields
Property”) being addressed under the Brownfields Property Reuse Act of 1997, NCGS § 130A, Article 9,
Part 5 (“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 DEQ’s approval of the Notice or Prospective
Developer’s entry into the Brownfields Agreement required by the Act, whichever is later. The copy of
the Notice certified by DEQ must be recorded in the grantor index under the names of the owners of the
land and, if Prospective Developer is not the owner, also under the Prospective Developer’s name.

The Brownfields Property is approximately 1.73 acres of land and improvements located at 2240 and
2250 Toomey Avenue in Charlotte, Mecklenburg County. The Horne Company Partners, LLC, intends to
redevelop the Brownfields Property for industrial, warehousing, office, parking and, subject to DEQ’s prior
written approval, other commercial uses. The Horne Company Partners, LLC is conducting and intends to
continue to conduct metal fabrication operations in one section of the building and use the other section for
storage, with the capacity to expand the metal fabrication operations into the other section in the future.
Groundwater is contaminated at the subject property due to past activities by historical operations or migration

17002-13-060/Toomey Ave (Draft20170420
2
from off-site sources. The surrounding area is industrial, commercial, and residential uses.

The Brownfields Agreement between Prospective Developer and DEQ 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 reflecting the concentrations of
and other information regarding the Property’s regulated substances and contaminants.

Attached as Exhibit B to this Notice is a reduction, to 8 1/2" x 11", of the survey plat component
of this Notice. This plat shows areas designated by DEQ, has been prepared and certified by a
professional land surveyor, meets the requirements of NCGS § 47-30, and complies with NCGS §
130A-310.35(a)’s requirement that the Notice identify:

(1) The location and dimensions of the areas of potential environmental concern with respect to
permanently surveyed benchmarks.

(2) The type, location and quantity of regulated substances and contaminants known to exist on the
Brownfields Property.

Attached hereto as Exhibit C is a legal description of the Brownfields Property that would be sufficient
as a description of the property in an instrument of conveyance.

LAND USE RESTRICTIONS

NCGS § 130A-310.35(a) also requires that the Notice identify any restrictions on the current and future
use of the Brownfields Property that are necessary or useful to maintain the level of protection appropriate for
the designated current or future use of the Brownfields Property and that are designated in the Brownfields
Agreement. The restrictions shall remain in force in perpetuity unless canceled by the Secretary of DEQ
(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 DEQ shall be understood to include any successor in function.
The restrictions are hereby imposed on the Brownfields Property, and are as follows:

1. No use may be made of the Brownfields Property other than for industrial, warehousing, office,
parking and, subject to DEQ’s prior written approval, other commercial uses. The planned redevelopment will
include use of the existing structure on the Brownfields Property for metal fabrication (without the use of any
chlorinated solvents found in existing groundwater, or their daughter products, for cleaning or degreasing
operations) and storage with associated parking. For purposes of this restriction, the following definitions
apply:
a. “Industrial” is defined as the manufacturing, assembly, fabrication, processing, warehousing
or distribution of goods or materials.
b. “Warehousing” is defined as the 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 of a group of establishments in a
particular type of industry or commercial activity.

17002-13-060/Toomey Ave (Draft20170420
3
c. “Office” is defined as the provision of business or professional services.
d. “Parking” is defined as the temporary accommodation of motor vehicles in an area designed
for the same;
e. “Commercial” is defined as an enterprise carried on for profit or non-profit by the owner,
lessee or licensee.
2. The Brownfields Property may not be used for child care centers, adult care centers, or schools
without the prior written approval of DEQ.
3. Groundwater at the Brownfields Property may not be used for any purpose without the prior written
approval of DEQ.
4. Unless compliance with this Land Use Restriction is waived in writing by DEQ in advance in regard
to particular activity, no activities that encounter, expose, remove or use groundwater (for example, installation
of water supply wells, ponds, lakes or swimming pools, or construction or excavation activities that encounter
or expose groundwater) may occur on the Brownfields Property unless and until DEQ states in writing, in
advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ
deems necessary to ensure the Brownfields Property will be suitable for the uses specified in Land Use
Restriction No.1 above while fully protecting public health and the environment. Prior sampling and analysis of
groundwater to the written satisfaction of DEQ in any areas proposed for such activities, and submittal of the
analytical results to DEQ is required. If such results reflect contaminant concentrations that exceed the
standards and screening levels applicable to the uses authorized for the Brownfields Property, the groundwater-
related activities proposed may only occur in compliance with any written conditions DEQ imposes. Activities
may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property
will be suitable for the uses specified in Land Use Restriction No. 1 above while fully protecting public health
and the environment.
5. Physical redevelopment of the Brownfields Property may not occur other than in accord, as
determined by DEQ, with an Environmental Management Plan (“EMP”) approved in writing by DEQ in
advance (and revised to DEQ’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 Brownfields
Property, the timing of redevelopment phases, and addresses health, safety, and environmental issues that may
arise from use of the Brownfields 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 8 and Exhibit 2 of
Exhibit A;
c. contingency plans for addressing, including without limitation the testing of soil and
groundwater, newly discovered potential sources of environmental contamination (e.g., USTs, tanks, drums,
septic drain fields, oil-water separators, soil contamination); and
d. plans for the proper characterization of, and, as necessary, disposal of contaminated soils

17002-13-060/Toomey Ave (Draft20170420
4
excavated during redevelopment.
6. No enclosed building that is not currently shown on the plat of the Brownfields Property prepared in
accordance with paragraph 20 of Exhibit A may be constructed on the Brownfields Property, until DEQ
determines in writing that:
a. the building is or would be protective of the building’s users, public health and the
environment from risk of vapor intrusion based on site assessment data or a site specific risk assessment
approved in writing by DEQ; or
b. the building is or would be sufficiently distant from the Brownfields Property’s groundwater
and/or soil contamination based on assessment data approved in writing by DEQ that the building’s users,
public health and the environment will be protected from risk from vapor intrusion related to said
contamination; or
c. vapor intrusion mitigation measures are installed and/or implemented to the satisfaction of a
professional engineer licensed in North Carolina, as evidenced by said engineer’s professional seal on a report
that includes photographs and a description of the installation and performance of said measures. Any design
specification for vapor intrusion mitigation measures shall be approved in writing by DEQ in advance of
installation and/or implementation of said measures. The design specifications shall include methodology(ies)
for demonstrating performance of said measures.
7. None of the contaminants known to be present in the environmental media at the Brownfields
Property, as described in Exhibit A, and as modified by DEQ in writing if additional contaminants in excess of
applicable standards are discovered at the Brownfields Property, may be used or stored at the Brownfields
Property without the prior written approval of DEQ, except:
a. in de minimis quantities for cleaning and other routine housekeeping and maintenance
activities;
b. in fluids in vehicles;
c. as constituents of products and materials customarily used and stored in connection with uses
permitted under this Agreement, provided such products and materials are stored in original retail packaging
and used and disposed of in accordance with applicable laws;
d. for vehicle maintenance, service, car wash and body work in compliance with applicable law
(though vehicle parts and tools may not be washed in chlorinated solvents containing any contaminants known
to be present in the environmental media at the Brownfields Property);
e. as constituents of fuels, lubricants and oils in emergency generators, machinery, equipment
and vehicles in on-board tanks integral to said equipment or in flammable liquid storage containers totaling no
more than 25 gallons; and
f. in products or materials that are brought onto the Brownfields Property, kept in their original
packaging or containers (that is, not used or repackaged) and later removed from the Brownfields Property in
the original packaging or containers.

17002-13-060/Toomey Ave (Draft20170420
5
8. Within 60 days after the effective date of this Agreement or prior to land disturbance activities,
Prospective Developer shall abandon monitoring wells, injection wells, recovery wells, piezometers and other
man-made points of groundwater access at the Brownfields Property, in accordance with Subchapter 2C of Title
15A of the North Carolina Administrative Code, unless an alternate schedule is approved by DEQ. Within 30
days after doing so, the Prospective Developer shall provide DEQ a report, setting forth the procedures and
results.
9. The owner of any portion of the Brownfields Property where any existing, or subsequently installed,
DEQ-approved monitoring well is damaged by the owner, its contractors, or its tenants shall be responsible for
repair of any such wells to DEQ’s written satisfaction and within a time period acceptable to DEQ, unless
compliance with this Land Use Restriction is waived in writing by DEQ in advance.
10. Neither DEQ, nor any party conducting environmental assessment or remediation at the Brownfields
Property at the direction of, or pursuant to a permit, order or agreement issued or entered into by DEQ, may be
denied access to the Brownfields Property for purposes of conducting such assessment or remediation, which is
to be conducted using reasonable efforts to minimize interference with authorized uses of the Brownfields
Property.
11. Any deed or other instrument conveying an interest in the Brownfields Property shall contain the
following notice: “This property is subject to the Brownfields Agreement attached as Exhibit A to the Notice of
Brownfields Property recorded in the Mecklenburg County land records, Book ____, Page ____.” A copy of
any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions) of Exhibit A,
though financial figures and other confidential information related to the conveyance may be redacted to the
extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public
Records Law. The owner conveying an interest may use the following mechanisms to comply with the
obligations of this paragraph: (i) If every lease and rider is identical in form, the owner conveying an interest
may provide DEQ with copies of a form lease or rider evidencing compliance with this paragraph, in lieu of
sending copies of actual, executed leases, to the persons listed in Section XV (Notices and Submissions) on
Exhibit A; or (ii) The owner conveying an interest may provide abstracts of leases, rather than full copies of
said leases, to the persons listed in Section XV of Exhibit A.
12. During January of each year after the year in which this Notice is recorded, the owner of any part of
the Brownfields Property as of January 1st of that year shall submit a notarized Land Use Restrictions Update
(“LURU”) to DEQ, and to the chief public health and environmental officials of Mecklenburg County,
certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions
remains recorded at the Mecklenburg County Register of Deeds office and that the land use restrictions are
being complied with, and stating:
a. the name, mailing address, telephone and facsimile numbers, and contact person’s e-mail
address of the owner submitting the LURU if said owner acquired any part of the Brownfields Property during
the previous calendar year;
b. the transferee’s name, mailing address, telephone and facsimile numbers, and contact person’s
e-mail address, if said owner transferred any part of the Brownfields Property during the previous calendar year;
c. whether any vapor barrier and/or mitigation systems installed pursuant to Land Use Restriction
No. 6 above are performing as designed, and whether the uses of the ground floors of any buildings containing

17002-13-060/Toomey Ave (Draft20170420
6
such vapor barrier and/or mitigation systems have changed, and, if so, how.
d. A LURU submitted for rental units shall include the rent roll and enough of each lease entered
into during the previous calendar year to demonstrate compliance with lessee notification requirements in
paragraphs 21 and 22 of Exhibit A of this agreement provided that if standard form leases are used in every
instance, a copy of such standard form lease may be sent in lieu of copies of actual leases.

For purposes of the land use restrictions set forth above, the DEQ point of contact shall be the DEQ
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 DEQ through the remedies provided in NCGS § 130A, Article 1, Part 2 or by means of a civil
action; by any unit of local government having jurisdiction 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 of DEQ (or its successor in function), or his/her delegate, shall be subject to enforcement by DEQ
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.

FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS

When any portion of the Brownfields Property is sold, leased, conveyed or transferred, pursuant to
NCGS § 130A-310.35(d) the deed or other instrument of transfer shall contain in the description section, in no
smaller type than that used in the body of the deed or instrument, a statement that the Brownfields Property has
been classified and, if appropriate, cleaned up as a brownfields property under the Brownfields Property Reuse
Act.

17002-13-060/Toomey Ave (Draft20170420
7
IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this
_____ day of _______________, 201__.

The Horne Company Partners, LLC

By: __________________________________________
Frank L. Horne, Jr.
Manager

NORTH CAROLINA
_______________ COUNTY

I certify that the following person(s) personally appeared before me this day, each acknowledging to me
that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity
indicated: ________________________________.

Date: ___________________ ___________________________________
Official Signature of Notary

___________________________________
Notary’s printed or typed name, Notary Public
(Official Seal) My commission expires: _____________________

17002-13-060/Toomey Ave (Draft20170420
8
************************************
APPROVAL AND CERTIFICATION OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY

The foregoing Notice of Brownfields Property is hereby approved and certified.

North Carolina Department of Environmental Quality

By: _________________________________________ ________________________
Michael E. Scott Date
Director, Division of Waste Management

17002-13-060/Toomey Ave(DRAFT 20170419)
EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: The Horne Company Partners, LLC
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT ) Toomey Avenue Property
OF 1997, NCGS § 130A-310.30, et seq. ) 2240 & 2250 Toomey Avenue
NCBP Project No. 17002-13-060 ) Charlotte, Mecklenburg County
I. INTRODUCTION
This Brownfields Agreement (“Agreement”) is entered into by the North Carolina
Department of Environmental Quality (“DEQ”) and The Horne Company Partners, LLC
(collectively the “Parties”) pursuant to the Brownfields Property Reuse Act of 1997, NCGS §
130A-310.30, et seq. (the “Act”) for the property located at 2240 and 2250 Toomey Avenue (the
“Brownfields Property”). A map showing the location of the Brownfields Property that is the
subject of this Agreement is attached hereto as Exhibit 1.
The Horne Company Partners, LLC, a North Carolina manager-managed limited liability
company was formed on October 30, 2006. Its registered agent is Frank L. Horne, Jr. and the
principal office address is 305 Doggett Street in Charlotte, North Carolina 28203. The
Brownfields Property comprises approximately 1.73 acres of land and improvements on Toomey
Avenue in Charlotte. The Horne Company Partners, LLC, intends to redevelop the Brownfields
Property for industrial, warehousing, office, parking and, subject to DEQ’s prior written
approval, other commercial uses. The Horne Company Partners, LLC is conducting and intends
to continue to conduct metal fabrication operations in one section of the building and use the
other section for storage, with the capacity to expand the metal fabrication operations into the
other section in the future. Groundwater is contaminated at the subject property due to past
2
17002-13-060/Toomey Ave(DRAFT 20170419)
activities by historical operations or migration from off-site sources. The surrounding area is
industrial, commercial, and residential uses.
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 (DEQ’s Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer’s Covenant Not to Sue), the
potential liability of The Horne Company Partners, LLC for contaminants at the property which
is the subject of this Agreement.
The Parties agree that The Horne Company Partners, LLC’s entry into this Agreement,
and the actions undertaken by The Horne Company Partners, LLC in accordance with the
Agreement, do not constitute an admission of any liability by The Horne Company Partners,
LLC.
The resolution of this potential liability, in exchange for the benefit The Horne Company
Partners, LLC shall provide to DEQ, 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 NCGS § 130A, Article 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
1. “Brownfields Property” shall mean the property which is the subject of this
Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. “Prospective Developer” shall mean The Horne Company Partners, LLC.
3
17002-13-060/Toomey Ave(DRAFT 20170419)
III. STATEMENT OF FACTS
3. The Brownfields Property comprises approximately 1.73 acres and is located at 2240
& 2250 Toomey Avenue, Charlotte, North Carolina, Mecklenburg County Tax Parcel Numbers
11904629 and 11904628, respectively. Prospective Developer has committed itself to
redevelopment for no uses other than industrial, warehousing, office, parking and, subject to
DEQ’s prior written approval, other commercial uses. The planned redevelopment will include
use of the existing structure on the Brownfields Property for metal fabrication operations and
storage with associated parking.
4. The Brownfields Property is bordered to the north by land used for commercial use,
Abbott Neighborhood Park and West Tremont Avenue; to the south by Toomey Avenue and
former Dynatech Industries facility (the subject of NC Brownfields Project No. 02002-98-060);
to the west by land used for industrial and commercial uses; and to the east by land used for
industrial and commercial uses and Wilmore Drive beyond.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the “Environmental Reports,” regarding the Brownfields Property:
Title Prepared by Date of Report
Phase I Environmental Site Assessment,
2240-2250 Toomey Avenue
EnviroAssessments June 22, 2010
Phase II Environmental Site Assessment,
2240-2250 Toomey Avenue
EnviroAssessments July 13, 2010
Transaction Screen Process Report, 2240-
2250 Toomey Avenue
Geoscience Group May 29, 2012
Phase I Environmental Site Assessment,
2240-2250 Toomey Avenue
Geoscience Group June 30, 2012
Additional Phase II Environmental Site
Assessment, 2240-2250 Toomey Avenue
EnviroAssessments October 10, 2012
4
17002-13-060/Toomey Ave(DRAFT 20170419)
Title Prepared by Date of Report
Brownfields Assessment Report,
2240-2250 Toomey Avenue
Hart & Hickman, PC May 1, 2015
6. For purposes of this Agreement, DEQ relies on information in the Environmental
Reports and on the following representations by Prospective Developer as to use and ownership
of the Brownfields Property:
a. Based on available aerial photographs from as early as 1938 and city directories
from as early as 1931, the Brownfields Property was undeveloped until 1973. As early as 1938,
there were residential developments to the north and west of the Brownfields Property in an area
called the Wilmore Neighborhood.
b. Between 1966 and 1968, the Brownfields Property and the land on the same
side as Toomey Avenue to the northeast and southwest of the Brownfields Property was cleared
but undeveloped.
c. By 1975, the Brownfields Property and the adjacent land on the same side as
Toomey Avenue was improved with the current commercial structures. The building on the
Brownfields Property was built on or about 1972.
d. The following is a summary of operations on the Brownfields Property:
i. A garment assembly facility operated on the Brownfields Property
beginning circa 1979 until approximately 1991.
ii. A machinery dealer and computer equipment business also reportedly
operated at the Brownfields Property in the 1990s.
iii. A metal component fabrication and painting facility operated by Truck
5
17002-13-060/Toomey Ave(DRAFT 20170419)
Equipment Manufacturing Company operated on the Brownfields Property from approximately
1991 to 2009.
iv. In 2009, North American Vehicle Components (“NAVC”) purchased
the assets of Truck Equipment Manufacturing Company and moved the metal component
fabrication operations across the street to 2213 Toomey Avenue. The Brownfields Property was
used by NAVC as storage space until the Prospective Developer began operations there in July
2013.
e. The Prospective Developer acquired the Brownfields Property on March 1,
2013. Current uses on the Brownfields Property include conducting metal fabrication operations
in one section of the building and use of the other section for storage, with the capacity to expand
the metal fabrication operations into the other section in the future.
7. Pertinent environmental information regarding the Brownfields Property and
surrounding area includes the following:
a. Located across the street at 2213 Toomey Avenue, is the former Dynatech
Industries facility (the subject of NC Brownfields Project No. 02002-98-060). That property has
been commercially developed since 1969. From 1969 to 1985, that property was used for
commercial sales and storage operations. There is no indication that hazardous materials were
used, stored or handled at the former Dynatech Industries property prior to 1985. From 1985 to
1990, Dynatech Industries, Inc., operated a chrome plating facility on a 5.5-acre tract which was
subsequently subdivided into three lots, Lot 2 of which is the subject of a Brownfields
Agreement. In response to a request from DEQ’s (then DENR) Superfund Section, the United
States Environmental Protection Agency’s (“EPA’s”) Emergency Removal and Response
6
17002-13-060/Toomey Ave(DRAFT 20170419)
Branch conducted a removal of hexavalent chromium-contaminated soils, drums of hazardous
waste, and debris from portions of that property (not including the Brownfields Property).
DEQ’s Superfund Section then conducted a Site Inspection at that property which included the
collection of soil, sediment and surface water samples. Based on this investigation, DEQ’s
Superfund Section recommended that no further federal action be taken at that property, and
EPA concurred. In October 2003, a Notice of Brownfields Property was recorded on 2213
Toomey Avenue at the Mecklenburg County Register of Deeds Book 16323, Page 290.
b. The surrounding area is in industrial use and has a history of use for the auto
repair and trucking industry. Recreational neighborhood park and residential use is beyond.
c. NAVC, located 2250 Toomey Avenue, was listed as a RCRA Non Generator
(RCRA-Non Gen NC0991302783). NAVC is not currently active and does not currently
generate waste. The RCRA listing stated that in 2009, NAVC was found to be in significant
non-compliance with regulations; however, the violations actually occurred across the street at
2213 Toomey Avenue at the former Dynatech Facility. The violations were improper
paperwork, improper drum storage, and drums left open. No releases or spills were documented.
In 2010 and moving forward, NAVC has been in compliance.
d. Component Technologies located at 2240 Toomey Avenue was listed as a
RCRA Non Generator (RCRA-Non Gen NC0000963108). No violations were found and the
facility was listed as current non-generator. This facility formerly generated waste chromium.
8. Environmental information regarding the groundwater, soil, and vapor on Brownfields
Property includes the following:
7
17002-13-060/Toomey Ave(DRAFT 20170419)
a. In 2010, five soil samples were taken (S-1-4, S-2-4, S-3-2, S-4-2 and S-5-2) by
EnviroAssessments. On September 7, 2012, EnviroAssessments took an additional four soil
samples (SB-1 through SB-4). No compound concentrations were detected in the soil samples at
or above North Carolina DEQ health-based Preliminary Soil Remediation Goals.
b. In 2010, four groundwater samples were collected and contained
concentrations of cadmium and chromium that exceeded the North Carolina Groundwater
Quality Standards contained in Title 15A of the North Carolina Administrative Code, Subchapter
2L, Rule .0202 (“15A NCAC 2L Groundwater Standards”). Two groundwater samples had
concentrations of tetrachloroethylene (“PCE”) and trichloroethylene (“TCE”) that exceed the
respective 15A NCAC 2L Groundwater Standards. Groundwater sample WS-1 also had
concentrations of 1,1-dichloroethane and barium that exceed the respective 15A NCAC 2L
Groundwater Standards.
c. In September 2012, additional groundwater sampling was conducted. Two
groundwater samples (TMW-2 and TMW-3) had concentrations of PCE that exceeded the 15A
NCAC 2L Groundwater Standard and groundwater sample TMW-2 TCE concentration that
exceeded the 15A NCAC 2L Groundwater Standard. Groundwater samples TMW-1, TMW-3
and TMW-4 had concentrations of chromium that exceeded the 15A NCAC 2L Groundwater
Standard.
d. Based on the groundwater results, a sub slab assessment of the potential for
vapor intrusion was conducted by Hart & Hickman PC (“H&H”). On February 12, 2015, H&H
collected four sub-slab vapor samples from the site, including two from the north section of the
building (2240 Toomey Ave) and two from the south section of the building (2250 Toomey
8
17002-13-060/Toomey Ave(DRAFT 20170419)
Ave). No compounds were detected above North Carolina Non-Residential Soil Gas Screening
Levels (“SGSLs”), and no additional assessment was required.
e.Data tables reflecting the concentrations of historical groundwater concentrations
at the Brownfields Property and other information regarding the Brownfields Property’s
contaminants appear in Exhibit 2 to this Agreement.
9. For purposes of this Agreement DEQ relies on Prospective Developer’s
representations that Prospective Developer's involvement with the Brownfields Property has
been limited to obtaining or commissioning the Environmental Reports, preparing and
submitting to DEQ a Brownfields Property Application (“BPA”) dated January 7, 2013, and
acquiring the Brownfields Property on March 1, 2013.
10. Prospective Developer has provided DEQ with information, or sworn certifications
regarding that information on which DEQ relies for purposes of this Agreement, sufficient to
demonstrate that:
a. Prospective Developer and any parent, subsidiary, or other affiliate has
substantially complied with federal and state laws, regulations and rules for protection of the
environment, and with the other agreements and requirements cited at NCGS § 130A-
310.32(a)(1);
b. As a result of the implementation of this Agreement, the Brownfields Property
will be suitable for the uses specified in the Agreement while fully protecting public health and
the environment;
c. Prospective Developer's reuse of the Brownfields Property will produce a
public benefit commensurate with the liability protection provided Prospective Developer
9
17002-13-060/Toomey Ave(DRAFT 20170419)
hereunder;
d. Prospective Developer has or can obtain the financial, managerial and
technical means to fully implement this Agreement and assure the safe use of the Brownfields
Property; and
e. Prospective Developer has complied with all applicable procedural
requirements.
11. Prospective Developer has paid to DEQ the $2,000 fee to seek a brownfields
agreement required by NCGS § 130A-310.39(a)(1), and shall make a payment to DEQ of $6,000
at the time Prospective Developer and DEQ 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 NCGS § 130A-310.39(a)(1), and, within the meaning of NCGS § 130A-
310.39(a)(2), the full cost to DEQ and the North Carolina Department of Justice of all activities
related to this Agreement, unless a change is sought to a Brownfields document after it is in
effect, in which case there shall be an additional fee of at least $1,000.
IV. BENEFIT TO COMMUNITY
12. The redevelopment of the Brownfields Property proposed herein would provide the
following public benefits:
a. creation of jobs related to the redevelopment of the Brownfields Property, as
well as jobs related to the operations on the redeveloped Brownfields Property;
c. positive economic impacts on the surrounding business community;
b. an increase in tax revenue for affected jurisdictions, in the form of increased
10
17002-13-060/Toomey Ave(DRAFT 20170419)
property taxes and increased taxes associated with increased economic activity;
c. positive economic impacts on the surrounding business community;
d. beneficial use of the Brownfield Property, thereby avoiding the use of “green
space” in other areas of the community;
e. aesthetic enhancements; and
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
13. In redeveloping the Brownfields Property, Prospective Developer shall make
reasonable efforts to evaluate applying sustainability principles at the Brownfields 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 (DEQ’s Covenant Not to Sue and Reservation of Rights), DEQ is not requiring
Prospective Developer to perform any active remediation at the Brownfields Property other than
remediation that may be required pursuant to a DEQ-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
11
17002-13-060/Toomey Ave(DRAFT 20170419)
with the land, to make the Brownfields Property suitable for the uses specified in this Agreement
while fully protecting public health and the environment. All references to DEQ shall be
understood to include any successor in function.
a. No use may be made of the Brownfields Property other than for industrial,
warehousing, office, parking and, subject to DEQ’s prior written approval, other commercial
uses. The planned redevelopment will include use of the existing structure on the Brownfields
Property for metal fabrication (without the use of any chlorinated solvents found in existing
groundwater, or their daughter products, for cleaning or degreasing operations) and storage with
associated parking. For purposes of this restriction, the following definitions apply:
i. “Industrial” is defined as the manufacturing, assembly, fabrication,
processing, warehousing or distribution of goods or materials.
ii. “Warehousing” is defined as the 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 of a group of establishments in a particular type of industry or commercial
activity.
iii. “Office” is defined as the provision of business or professional
services.
iv. “Parking” is defined as the temporary accommodation of motor
vehicles in an area designed for the same;
v. “Commercial” is defined as an enterprise carried on for profit or non-
profit by the owner, lessee or licensee.
12
17002-13-060/Toomey Ave(DRAFT 20170419)
b. The Brownfields Property may not be used for child care centers, adult care
centers, or schools without the prior written approval of DEQ.
c. Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
d. Unless compliance with this Land Use Restriction is waived in writing by
DEQ in advance in regard to particular activity, no activities that encounter, expose, remove or
use groundwater (for example, installation of water supply wells, ponds, lakes or swimming
pools, or construction or excavation activities that encounter or expose groundwater) may occur
on the Brownfields Property unless and until DEQ states in writing, in advance of the proposed
activity, that said activity may occur if carried out along with any measures DEQ deems
necessary to ensure the Brownfields Property will be suitable for the uses specified in
subparagraph 15.a. above while fully protecting public health and the environment. Prior
sampling and analysis of groundwater to the written satisfaction of DEQ in any areas proposed
for such activities, and submittal of the analytical results to DEQ is required. If such results
reflect contaminant concentrations that exceed the standards and screening levels applicable to
the uses authorized for the Brownfields Property, the groundwater-related activities proposed
may only occur in compliance with any written conditions DEQ imposes. Activities may occur
if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property
will be suitable for the uses specified in subparagraph 15.a above while fully protecting public
health and the environment.
e. Physical redevelopment of the Brownfields Property may not occur other than
in accord, as determined by DEQ, with an Environmental Management Plan (“EMP”) approved
13
17002-13-060/Toomey Ave(DRAFT 20170419)
in writing by DEQ in advance (and revised to DEQ’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 Brownfields Property, the timing of redevelopment
phases, and addresses health, safety, and environmental issues that may arise from use of the
Brownfields 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. issues related to potential sources of contamination referenced in
paragraph 8 above and Exhibit 2;
iii. contingency plans for addressing, including without limitation the
testing of soil and groundwater, newly discovered potential sources of environmental
contamination (e.g., USTs, tanks, drums, septic drain fields, oil-water separators, soil
contamination); and
iv. plans for the proper characterization of, and, as necessary, disposal of
contaminated soils excavated during redevelopment.
f. No enclosed building that is not currently shown on the plat of the Brownfields
Property prepared in accordance with paragraph 20 may be constructed on the Brownfields
Property, until DEQ determines in writing that:
i. the building is or would be protective of the building’s users, public
health and the environment from risk of vapor intrusion based on site assessment data or a site
specific risk assessment approved in writing by DEQ; or
14
17002-13-060/Toomey Ave(DRAFT 20170419)
ii. the building is or would be sufficiently distant from the Brownfields
Property’s groundwater and/or soil contamination based on assessment data approved in writing
by DEQ that the building’s users, public health and the environment will be protected from risk
from vapor intrusion related to said contamination; or
iii. vapor intrusion mitigation measures are installed and/or implemented
to the satisfaction of a professional engineer licensed in North Carolina, as evidenced by said
engineer’s professional seal on a report that includes photographs and a description of the
installation and performance of said measures. Any design specification for vapor intrusion
mitigation measures shall be approved in writing by DEQ in advance of installation and/or
implementation of said measures. The design specifications shall include methodology(ies) for
demonstrating performance of said measures.
g. None of the contaminants known to be present in the environmental media at
the Brownfields Property, as described in paragraph 8 and Exhibit 2 of this Agreement, and as
modified by DEQ in writing if additional contaminants in excess of applicable standards are
discovered at the Brownfields Property, may be used or stored at the Brownfields Property
without the prior written approval of DEQ, except:
i. in de minimis quantities for cleaning and other routine housekeeping and
maintenance activities;
ii. in fluids in vehicles;
iii. as constituents of products and materials customarily used and stored
in connection with uses permitted under this Agreement, provided such products and materials
15
17002-13-060/Toomey Ave(DRAFT 20170419)
are stored in original retail packaging and used and disposed of in accordance with applicable
laws;
iv. for vehicle maintenance, service, car wash and body work in
compliance with applicable law (though vehicle parts and tools may not be washed in chlorinated
solvents containing any contaminants known to be present in the environmental media at the
Brownfields Property);
v. as constituents of fuels, lubricants and oils in emergency generators,
machinery, equipment and vehicles in on-board tanks integral to said equipment or in flammable
liquid storage containers totaling no more than 25 gallons; and
vi. in products or materials that are brought onto the Brownfields Property,
kept in their original packaging or containers (that is, not used or repackaged) and later removed
from the Brownfields Property in the original packaging or containers.
h. Within 60 days after the effective date of this Agreement or prior to land
disturbance activities, Prospective Developer shall abandon monitoring wells, injection wells,
recovery wells, piezometers and other man-made points of groundwater access at the
Brownfields Property, in accordance with Subchapter 2C of Title 15A of the North Carolina
Administrative Code, unless an alternate schedule is approved by DEQ. Within 30 days after
doing so, the Prospective Developer shall provide DEQ a report, setting forth the procedures and
results.
i. The owner of any portion of the Brownfields Property where any existing, or
subsequently installed, DEQ-approved monitoring well is damaged by the owner, its contractors,
or its tenants shall be responsible for repair of any such wells to DEQ’s written satisfaction and

16

17002-13-060/Toomey Ave(DRAFT 20170419)
within a time period acceptable to DEQ, unless compliance with this Land Use Restriction is
waived in writing by DEQ in advance.
j. Neither DEQ, nor any party conducting environmental assessment or
remediation at the Brownfields Property at the direction of, or pursuant to a permit, order or
agreement issued or entered into by DEQ, may be denied access to the Brownfields Property for
purposes of conducting such assessment or remediation, which is to be conducted using
reasonable efforts to minimize interference with authorized uses of the Brownfields Property.
k. Any deed or other instrument conveying an interest in the Brownfields Property
shall contain the following notice: “This property is subject to the Brownfields Agreement
attached as Exhibit A to the Notice of Brownfields Property recorded in the Mecklenburg County
land records, Book ____, Page ____.” A copy of any such instrument shall be sent to the persons
listed in Section XV (Notices and Submissions), though financial figures and other confidential
information related to the conveyance may be redacted to the extent said redactions comply with
the confidentiality and trade secret provisions of the North Carolina Public Records Law. The
owner conveying an interest may use the following mechanisms to comply with the obligations of
this paragraph: (i) If every lease and rider is identical in form, the owner conveying an interest
may provide DEQ with copies of a form lease or rider evidencing compliance with this paragraph,
in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notices
and Submissions); or (ii) The owner conveying an interest may provide abstracts of leases, rather
than full copies of said leases, to the persons listed in Section XV.
l. 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 Brownfields Property as of January 1st
17
17002-13-060/Toomey Ave(DRAFT 20170419)
of that year shall submit a notarized Land Use Restrictions Update (“LURU”) to DEQ, and to the
chief public health and environmental officials of Mecklenburg County, certifying that, as of said
January 1st, the Notice of Brownfields Property containing these land use restrictions remains
recorded at the Mecklenburg County Register of Deeds office and that the land use restrictions
are being complied with, and stating:
i. the name, mailing address, telephone and facsimile numbers, and contact
person’s e-mail address of the owner submitting the LURU if said owner acquired any part of the
Brownfields 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 Brownfields Property
during the previous calendar year; and
iii. whether any vapor barrier and/or mitigation systems installed pursuant
to subparagraph 15.f 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.
iv. A LURU submitted for rental units shall include the rent roll and enough
of each lease entered into during the previous calendar year to demonstrate compliance with lessee
notification requirements in paragraphs 21 and 22 of this agreement provided that if standard form
leases are used in every instance, a copy of such standard form lease may be sent in lieu of copies
of actual leases.
16. The desired result of the above-referenced land use restrictions is to make the
Brownfields Property suitable for the uses specified in the Agreement while fully protecting
18
17002-13-060/Toomey Ave(DRAFT 20170419)
public health and the environment.
17. The guidelines, including parameters, principles and policies within which the
desired results are to be accomplished are, as to field procedures and laboratory testing, the
Guidelines of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section and the Division
of Waste Management Vapor Intrusion Guidance, as embodied in their most current version.
18. The consequence of achieving the desired results will be that the Brownfields
Property will be suitable for the uses specified in the Agreement while fully protecting public
health and the environment. The consequence of not achieving the desired results will be that
modifications to land use restrictions and/or remediation in some form may be necessary to fully
protect public health and/or the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
19. In addition to providing access to the Brownfields Property pursuant to subparagraph
15.j. above, Prospective Developer shall provide DEQ, its authorized officers, employees,
representatives, and all other persons performing response actions under DEQ oversight, access
at all reasonable times to other property controlled by Prospective Developer in connection with
the performance or oversight of any response actions at the Brownfields Property under
applicable law. Such access is to occur after prior notice and using reasonable efforts to
minimize interference with authorized uses of such other property except in response to
emergencies and/or imminent threats to public health and the environment. While Prospective
Developer owns the Brownfields Property, DEQ shall provide reasonable notice to Prospective
Developer of the timing of any response actions to be undertaken by or under the oversight of
DEQ at the Brownfields Property. Except as may be set forth in the Agreement, DEQ retains all
19
17002-13-060/Toomey Ave(DRAFT 20170419)
of its authorities and rights, including enforcement authorities related thereto, under the Act and
any other applicable statute or regulation, including any amendments thereto.
20. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields
Property for the Brownfields 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 Brownfields
Property. Pursuant to NCGS § 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
Mecklenburg County, North Carolina, Register of Deeds’ Office. Within three (3) days
thereafter, Prospective Developer shall furnish DEQ a copy of the documentary component of
the Notice containing a certification by the register of deeds as to the Book and Page numbers
where both the documentary and plat components of the Notice are recorded, and a copy of the
plat with notations indicating its recordation.
21. This Agreement shall be attached as Exhibit A to the Notice of Brownfields
Property. Subsequent to recordation of said Notice, any deed or other instrument conveying an
interest in the Brownfields Property shall contain the following notice: “This property is subject
to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property
recorded in the Mecklenburg County land records, Book ____, Page ____.” A copy of any such
instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though
financial figures and other confidential information related to the conveyance may be redacted to
the extent said redactions comply with the confidentiality and trade secret provisions of the
North Carolina Public Records Law. Prospective Developer may use the following mechanisms
to comply with the obligations of this paragraph: (i) If every lease and rider is identical in form,
20
17002-13-060/Toomey Ave(DRAFT 20170419)
Prospective Developer may provide DEQ with copies of a form lease or rider evidencing
compliance with this paragraph, in lieu of sending copies of actual, executed leases, to the
persons listed in Section XV (Notices and Submissions); or (ii) Prospective Developer may
provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section
XV.
22. The Prospective Developer shall ensure that a copy of this Agreement is provided to
any current lessee or sublessee on the Brownfields Property within seven days of the effective
date of this Agreement.
VII. DUE CARE/COOPERATION
23. The Prospective Developer shall exercise due care at the Brownfields Property with
respect to the manner in which regulated substances are handled at the Brownfields Property and
shall comply with all applicable local, State, and federal laws and regulations. The Prospective
Developer agrees to cooperate fully with any assessment or remediation of the Brownfields
Property by DEQ and further agrees not to interfere with any such assessment or 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 Brownfields Property, the Prospective
Developer shall immediately take all appropriate action to prevent, abate, or minimize such
release or threat of release, shall comply with any applicable notification requirements under
NCGS § 130A-310.1 and 143-215.85, Section 103 of CERCLA, 42 USC § 9603, and/or any
other law, and shall immediately notify the DEQ Official referenced in paragraph 35.a below of
any such required notification.
21
17002-13-060/Toomey Ave(DRAFT 20170419)
VIII. CERTIFICATION
24. By entering into this Agreement, the Prospective Developer certifies that, without
DEQ approval, it will make no use of the Brownfields Property other than that committed to in
the Brownfields Property Application dated January 7, 2013 by which it applied for this
Agreement. That use is for industrial, warehousing, office, parking and, and subject to DEQ’s
prior written approval, other commercial uses. The planned redevelopment will include use of
the existing structure on the Brownfields Property for metal fabrication operations and storage
with associated parking. Prospective Developer also certifies that to the best of its knowledge
and belief it has fully and accurately disclosed to DEQ 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 Brownfields Property and to its qualification for this Agreement, including
the requirement that it not have caused or contributed to the contamination at the Brownfields
Property.
IX. DEQ’S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
25. Unless any of the following apply, Prospective Developer shall not be liable to DEQ,
and DEQ covenants not to sue Prospective Developer, for remediation of the Brownfields
Property except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the Brownfields Property by or under the control
or direction
of the Prospective Developer increase the risk of harm to public health or the environment, in
22
17002-13-060/Toomey Ave(DRAFT 20170419)
which case Prospective Developer shall be liable for remediation of the areas of the Brownfields
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 NCGS § 130A-310.35 is violated while the Prospective Developer owns the Brownfields
Property, in which case the Prospective Developer shall be responsible for remediation of the
Brownfields 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 Brownfields Property.
e. New information indicates the existence of previously unreported
contaminants or an area of previously unreported contamination on or associated with the
Brownfields Property that has not been remediated to unrestricted use standards, unless this
Agreement is amended to include any previously unreported contaminants and any additional
areas of contamination. If this Agreement sets maximum concentrations for contaminants, and
new information indicates the existence of previously unreported areas of these contaminants,
further remediation shall be required only if the areas of previously unreported contaminants
raise the risk of the contamination to public health or the environment to a level less protective of
public health and the environment than that required by this Agreement.
f. The level of risk to public health or the environment from contaminants is
unacceptable at or in the vicinity of the Brownfields Property due to changes in exposure
23
17002-13-060/Toomey Ave(DRAFT 20170419)
conditions, including (i) a change in land use that increases the probability of exposure to
contaminants at or in the vicinity of the Brownfields Property or (ii) the failure of remediation to
mitigate risks to the extent required to make the Brownfields Property fully protective of public
health and the environment as planned in this Agreement.
g. DEQ obtains new information about a contaminant associated with the
Brownfields Property or exposures at or around the Brownfields Property that raises the risk to
public health or the environment associated with the Brownfields 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 NCGS § 130A-310.35.
26. Except as may be provided herein, DEQ 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 permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, NCGS § 113A-1, et seq.
28. Consistent with NCGS § 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
NCGS § 130A-310.33, including future owners of the Brownfields 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 DEQ’s Covenant Not To Sue in Section IX of this Agreement
24
17002-13-060/Toomey Ave(DRAFT 20170419)
and in recognition of the absolute State immunity provided in NCGS § 130A-310.37(b), the
Prospective Developer hereby covenants not to sue and not to assert any claims or causes of
action against DEQ, 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 DEQ, 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. Prospective Developer and DEQ agree that this Agreement meets the requirements of
the Act, including but not limited to the requirements set forth in NCGS § 130A-310.32(a)(2).
However, this Agreement in no way constitutes a finding by DEQ as to the risks to public health
and the environment which may be posed by regulated substances at the Brownfields Property, a
representation by DEQ that the Brownfields Property is fit for any particular purpose, nor a
waiver of Prospective Developer’s duty to seek applicable permits or of the provisions of NCGS
§ 130A-310.37.
32. Except for the land use restrictions set forth in paragraph 15 above and NCGS §
130A-310.33(a)(1)-(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.
25
17002-13-060/Toomey Ave(DRAFT 20170419)
XIII. DOCUMENT RETENTION
33. 33. The Prospective Developer agrees to retain and make available to DEQ
all business and operating records, contracts, site studies and investigations, remediation reports,
and documents generated by and/or in the control of the Prospective Developer, its affiliates or
subsidiaries relating to storage, generation, use, disposal and management of regulated
substances at the Brownfields Property, including without limitation all Material Safety Data
Sheets or Safety Data Sheets, for six (6) years following the effective date of this Agreement,
unless otherwise agreed to in writing by the Parties. Said records may be retained electronically
such that they can be retrieved and submitted to DEQ upon request. At the end of six (6) years,
the Prospective Developer shall notify DEQ of the location of such documents and shall provide
DEQ with an opportunity to copy any documents at the expense of DEQ. By entering into this
Agreement, Prospective Developer waives no rights of confidentiality or privilege provided by
the North Carolina Public Records Act or otherwise and, at the time DEQ requests to copy or
inspect said documents, Prospective Developer shall provide DEQ with a log of documents
withheld from DEQ, including a specific description of the document(s) and the alleged legal
basis upon which they are being withheld. To the extent DEQ retains any copies of such
documents, Prospective Developer retains all rights it then may have to seek protection from
disclosure of such documents as confidential business information.
XIV. PAYMENT OF ENFORCEMENT COSTS
34. If the Prospective Developer fails to comply with the terms of this Agreement,
including, but not limited to, the provisions of Section V (Work to be Performed), it shall be
liable for all litigation and other enforcement costs incurred by DEQ to enforce this Agreement
26
17002-13-060/Toomey Ave(DRAFT 20170419)
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
35. Unless otherwise required by DEQ 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. for DEQ:
Mrs. Carolyn Minnich (or successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Frank L. Horne, Jr. (or successor in function)
The Horne Company Partners, LLC
PO Box 36485
Charlotte, NC 28236
Notices and submissions sent by prepaid first class U.S. mail shall be effective on the third day
following postmarking. Notices and submissions sent by hand or by other means affording
written evidence of date of receipt shall be effective on such date.
XVI. EFFECTIVE DATE
36. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving the signed, conditionally approved Agreement from DEQ. DEQ’s approval of
this Agreement is conditioned upon the complete and timely execution and filing of this
Agreement in the manner set forth herein. Prospective Developer shall expeditiously sign the
Agreement in order to effect the recordation of the full Notice of Brownfields Property within
27
17002-13-060/Toomey Ave(DRAFT 20170419)
the statutory deadline set forth in N.C.G.S. § 130A-310.35(b). If the Agreement is not signed by
Prospective Developer within 45 days after such receipt, DEQ has the right to revoke its
approval and certification of this Agreement, and invalidate its signature on this Agreement.
XVII. TERMINATION OF CERTAIN PROVISIONS
37. If any Party believes that any or all of the obligations under Section VI
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the
requirements of the Agreement, that Party may request in writing that the other Party agree to
terminate the provision(s) establishing such obligations; provided, however, that the provision(s)
in question shall continue in force unless and until the Party requesting such termination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CONTRIBUTION PROTECTION
38. With regard to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
claims to the extent provided by NCGS § 130A-310.37(a)(5)-(6). The subject matter of this
Agreement is all remediation taken or to be taken and response costs incurred or to be incurred
by DEQ or any other person in relation to the Brownfields Property.
39. The Prospective Developer agrees that, with respect to any suit or claim for
contribution brought by it in relation to the subject matter of this Agreement, it will notify DEQ
in writing no later than 60 days prior to the initiation of such suit or claim.
40. The Prospective Developer also agrees that, with respect to any suit or claim for
contribution brought against it in relation to the subject matter of this Agreement, it will notify
DEQ in writing within 10 days of receiving said suit or claim.
28
17002-13-060/Toomey Ave(DRAFT 20170419)
XIX. PUBLIC COMMENT
41. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after the last of the following public notice tasks occurs: publication of the
approved summary of the Notice of Intent to Redevelop a Brownfields Property required by
NCGS § 130A-310.34 in a newspaper of general circulation serving the area in which the
Brownfields Property is located; conspicuous posting of a copy of said summary at the
Brownfields Property; and mailing or delivery of a copy of the summary to each owner of
property contiguous to the Brownfields Property. After expiration of that period, or following a
public meeting if DEQ holds one pursuant to NCGS § 130A-310.34(c), DEQ may modify or
withdraw its consent to this Agreement if comments received disclose facts or considerations
which indicate that this Agreement is inappropriate, improper or inadequate.
29
17002-13-060/Toomey Ave(DRAFT 20170419)
IT IS SO AGREED:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
By:
____________________________________________________________________________
Michael E. Scott Date
Director, Division of Waste Management
IT IS SO AGREED:
The Horne Company Partners, LLC
By:
____________________________________________________________________________
Frank L. Horne, Manager Date
Figure 1 – Site Location Map Source: USGS 7.5 Minute Topographic Map Charlotte
East, North Carolina Quadrangle 1967 (Photorevised 1987)Scale: 1:24,000
Site Name: Toomey Avenue
2240-2250 Toomey Avenue
Charlotte, North Carolina
Project Number: 10-8355.4
Project
Exhibit 1
17002-13-060/Toomey Ave (draft 20170214)

1
Exhibit 2
The most recent environmental sampling at the Property reported in the Environmental
Reports occurred on February 2015. The following table forth, for contaminants present at the
Property above unrestricted use 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
purposes of this Agreement.
GROUNDWATER
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 (2L), Rule .0202, (April 1, 2013 version):
Groundwater
Contaminant
Sample
Location
Date of Sampling Concentration
Exceeding
Standard (Pg/L)
Standard
(Pg/L)
1,1-Dichloroethane WS-1 06/30/2010 7.3 6
Tetrachloroethylene WS-1
WS-2
TMW-2
TMW-3
06/30/2010
06/30/2010
09/11/2012
09/11/2012
59
30
17.3
1.1
0.7
Trichloroethylene WS-1
WS-2
TMW-2
06/30/2010
06/30/2010
09/11/2012
31
16
11.3
3
Barium WS-1 06/30/2010 860 700
Cadmium WS-1
WS-2
WS-3
WS-4
06/30/2010
06/30/2010
06/30/2010
06/30/2010
19
4.5
8.5
14
2
Chromium WS-1
WS-2
WS-3
WS-4
TMW-1
TMW-3
TMW-4
06/30/2010
06/30/2010
06/30/2010
06/30/2010
09/11/2012
09/11/2012
09/11/2012
580
130
78
380
164
3,180
96
10
17002-13-060/Toomey Ave (draft 20170214)

2
GROUNDWATER VAPOR INTRUSION RISK
Groundwater contaminants with potential for vapor intrusion (VI) in micrograms per liter
(the equivalent of parts per billion), the vapor intrusion screening levels for which are derived
from the Non-Residential Vapor Intrusion Screening Levels of the Division of Waste
Management October 2016 version):
Groundwater
Contaminant with
Potential for Vapor
Intrusion
Sample
Location
Date of
Sampling
Concentration
Exceeding
Screening
Level (Pg/L)
Non-
Residential VI
Screening
Level1
(Pg/L)
Tetrachloroethylene WS-1 06/30/2010 59 48.4
Trichloroethylene WS-1
WS-2
TMW-2
06/30/2010
06/30/2010
09/11/2012
31
16
11.3
4.35
1 Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels
displayed for carcinogens are for a 1.0E-5 lifetime incremental cancer risk.
2 NS – Screening level or regulatory not established.

As a result of compound concentrations exceeding the Non-Residential VI groundwater
screening level shown above, an assessment of the potential for vapor intrusion was conducted
by Hart & Hickman PC (“H&H”). On February 12, 2015, H&H collected four sub-slab vapor
samples from the site, including two from the north section of the building (2240 Toomey Ave)
and two from the south section of the building (2250 Toomey Ave). No compounds were
detected above DEQ Non-Residential Soil Gas Screening Levels (“SGSLs”).

P R E L I M I N A R Y
(N
O
T

F
O
R

R
E
C
O
R
D
A
T
I
O
N

O
R

S
A
L
E
S
)

EXHIBIT C
That certain tract or parcel of land situated, lying and being in the City of Charlotte,
County of Mecklenburg, State of North Carolina and being more particularly described
as follows:
BEGINNING at an existing iron rod being the northernmost corner of the Wetwo Group
property as described in Deed Book 13569, Page 462 in the Mecklenburg County Public
Registry, said point also being on the southeasterly boundary of Lot 40, as recorded in
Map Book 230, Page 219 in said Registry; Thence with the southeastern boundary of
Lots 40, 41, 42, 43, 44, and 45 N 42°07'14" E a distance of 200.00 feet to an existing
iron rod, said point being the northwest corner of Lot 1, Carolina Foods Property, Map 1
as recorded in Map Book 33, Page 263 in said Registry; Thence with the southwesterly
boundary of said Lot 1 S 48°54'55" E a distance of 344.85 feet to an existing nail on the
northwesterly margin of Toomey Avenue (variable width public R/W); Thence within the
said right-of-way of Toomey Avenue for the following five (5) courses and distances:
1) S 48°54'55" E a distance of 28.72 feet to a calculated point;
2) S 41°01'55" W a distance of 100.27 feet to a calculated point;
3) S 48°52'18" E a distance of 3.89 feet to a calculated point;
4) S 40°42'31" E a distance of 100.72 feet to a calculated point;
5) N 48°45'40" W a distance of 36.85 feet to an existing nail, said point being the
northeasternmost corner of the Wetwo Group property as described in Deed Book
13569, Page 462 in said Registry; Thence with the northeastern boundary of said
Wetwo Group property N 48°45'40" W a distance of 344.98 feet to the point and place
of BEGINNING; containing 75,694 square feet or 1.7377 acres, as shown on a survey
prepared by R. B. Pharr & Associates, P.A. dated February 13, 2017
(Map File W-4206BF)(Job # 86334)