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Block 42 / 21024-17-060 (Final 5-17-2018)
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Property Owner: LMC Block 42 Holdings, LLC; LMV Block 42 Holdings, LP;
and Concord Levine Hotels LLC
Recorded in Book ____, Page ____
Associated plat recorded in Plat Book ____, Page ____
NOTICE OF BROWNFIELDS PROPERTY
Site Name: Block 42
Brownfields Project Number: 21024-17-060
This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat
component, have been filed this _____ day of __________________, 2018 by LMC Block 42 Holdings, LLC
and LMV Block 42 Holdings, LP (“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 consists of 3.55 acres and encompasses the city block which includes 500 N.
College in Charlotte, North Carolina. The site was first developed for industrial purposes as a lumber planing
mill and wood products company in the late 1880s. Residential properties were developed on the site in the 1890s
and commercial and, beginning in 1910, other industrial uses were added through the 1960, including a bearing
21024-17-060 Block 42 (Final 05-17-2018)
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manufacturer, food and beverage distributors, a printing company, an auto parts company, and other commercial
uses. Industrial use of the site ended in 1970s and the remaining building space was used for commercial office,
retail, meeting and commercial parking purposes. In 2005, all but 2 buildings were razed and replaced by
commercial parking space. In May of 2018, the final two building were razed. The site has contamination in the
groundwater, soil, and soil gas as a result of the previous industrial and commercial uses. The Prospective
Developer propose to redevelop the Brownfields Property for no uses other than retail, office, open space,
recreation, high-density residential, hotel, restaurant, brewery or food production facility, storage units, parking,
and, subject to DEQ’s prior written approval, other commercial 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 retail, office, open space,
recreation, multi-family residential, high-density residential, hotel, restaurant, brewery or food production
facility, storage units, parking, and, subject to DEQ’s prior written approval, other commercial uses. For
purposes of this restriction, the following definitions apply:
21024-17-060 Block 42 (Final 05-17-2018)
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a. “Retail” is defined as the sale of goods or services, products, or merchandise directly
to the consumer or businesses and includes showrooms, personal service, and the sales of food and beverage
products. For the purposes of this Agreement, retail excludes use as a dry cleaner using chlorinated solvents.
b. “Office” is defined as the provision of business or professional services.
c. “Open space” is defined as land maintained in a natural or landscaped state and used
for natural resource protection, buffers, greenways, or detention facilities for storm water.
d. “Recreation” is defined as indoor and outdoor exercise-related, physically focused, or
leisure-related activities, whether active or passive, and the facilities for same, including, but not limited to,
studios, swimming pools, sports-related courts and fields, open space, greenways, parks, playgrounds, walking
paths, and picnic and public gathering areas.
e. “High density residential” is defined as permanent dwellings where residential units
are attached to each other with common walls, such as condominia, apartments, group homes, dormitories or
boarding houses, and any property outside the dwelling structures is usable by all residents and not privately
owned as part of a particular unit, and shall include related amenities, such as pools, clubhouses, courtyards,
common areas, recreation areas and parking garages. Ground floor units are prohibited unless approved in
writing by DEQ in advance.
f. “Hotel” is defined as the provision of overnight lodging to paying customers, and to
associated food services, gym, reservation, cleaning, utilities, parking, and on-site hospitality, management and
reception services.
g. “Restaurant” is defined as a commercial business establishment that prepares and
serves food and beverages to patrons.
h. “Brewery or Food Production Facility” is defined as an establishment for the
manufacture, sale and distribution of beverages or food products, including without limitation beer and ale,
together with associated public roadways and related infrastructure.
i. “Storage unit” is defined as space that is commercially rented on a short- or long-term
basis by consumers and businesses for the storage of personal effects, household goods, equipment and other
non-hazardous materials that are in compliance with all other aspects of this Agreement.
j. “Parking” is defined as the temporary accommodation of motor vehicles in an area
designed for same.
k. “Commercial” is defined as an enterprise carried on for profit or nonprofit by the
owner, lessee or licensee. For the purposes of this Agreement, this excludes use as a dry cleaner using
chlorinated solvents.
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. 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 Exhibit 2 of the
21024-17-060 Block 42 (Final 05-17-2018)
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attached 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 excavated during redevelopment.
4. No use of the Brownfields Property as specified above in Land Use Restriction 1 may occur
until the then-owner of the Brownfields Property conducts representative final grade soil sampling pursuant to a
plan approved in writing by DEQ of any area of the Brownfields Property that will not be covered by building
foundations, sidewalks, or asphaltic or concrete parking areas and driveways unless otherwise approved in
writing by DEQ in advance.
5. Groundwater at the Brownfields Property may not be used for any purpose without the prior
written approval of DEQ.
6. No activity that disturbs soil on the Brownfields Property may occur 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 above
in Land Use Restriction 1 while fully protecting public health and the environment, except:
a. in connection with landscape planting to depths not exceeding 24 inches;
b. mowing and pruning of above-ground vegetation;
c. for repair of underground infrastructure, provided that DEQ shall be given written
notice at least seven days in advance of a scheduled repair (if only by email) of any such repair, or in emergency
circumstances no later than the next business day, and that any related assessment and remedial measures
required by DEQ shall be taken and;
d. in connection to work conducted in accordance with the EMP as outlined above in
Land Use Restriction 3.
7. Soil may not be removed from, or brought onto, the Brownfields Property without prior
sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless conducted in accordance
with an approved EMP as outlined above in Land Use Restriction 3.
8. No enclosed building may be constructed on the Brownfields Property and no existing
building, defined as those depicted on the plat component of this Notice of Brownfields Property, may be
occupied, 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
21024-17-060 Block 42 (Final 05-17-2018)
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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.
9. By January 31 of each one-year anniversary of the effective date of the attached Exhibit A,
and for as long as physical redevelopment of the Brownfields Property continues (except that the final deadline
shall fall 90 days after the conclusion of physical redevelopment), the then-owner of the Brownfields Property
shall provide DEQ a report subject to written DEQ approval on environment-related activities since the last
report, with a summary and drawings, that describes:
a. actions taken on the Brownfields Property in accordance with the EMP required by
Land Use Restriction 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 Brownfields Property (copies of all legally required manifests shall be
included).
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. None of the contaminants known to be present in the environmental media at the
Brownfields Property, as described in Exhibit 2 of the attached 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. as fuel or other fluids customarily used in vehicles, landscaping equipment, and
emergency generators; and
c. as constituents of products and materials customarily used and stored in retail, office,
open space, recreation, high-density residential, hotel, brewery or food production, storage units, parking, or
commercial environments, provided such products and materials are stored in original retail packaging and used
and disposed of in accordance with applicable laws.
12. 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.
21024-17-060 Block 42 (Final 05-17-2018)
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13. 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
this 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 to this Notice, 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 Land Use Restriction:
(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 (Notice and Submissions) of the attached 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 the attached Exhibit A.
14. 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, this Notice 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. The
submitted LURU shall state the following:
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 8 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.
d. A joint LURU may be submitted for multiple owners by a duly constituted board or
association and shall include the name, mailing address, telephone and facsimile numbers, and contact person’s
e-mail address of the entity submitting the joint LURU as well as for each of the owners on whose behalf the
joint LURU is submitted.
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
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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.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
21024-17-060 Block 42 (Final 05-17-2018)
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IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this
_____ day of _______________, 2018.
LMC Block 42 Holdings, LLC
a Delaware limited liability company
By: Lennar MF Holdings, LLC
a Delaware limited liability company, its sole member
By: Lennar Multifamily Communities, LLC
a Delaware limited liability company, its sole member
By: __________________________________________________________________________
Jeffrey Harris, Vice President Date
LMV Block 42 Holdings, LP
a Delaware limited partnership
By: Lennar Multifamily BTC Venture GP Subsidiary, LLC
a Delaware limited liability company, its general partner
By: Lennar Multifamily BTC Venture Manager, LLC
a Delaware limited liability company, its manager
By: __________________________________________________________________________
Jeffrey Harris, Vice President Date
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: _____________________
21024-17-060 Block 42 (Final 05-17-2018)
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************************************
ACKNOWLEDGMENT OF PROPERTY OWNER
As the current owner, or representative of said owner, of at least part of the Brownfields Property, I
hereby acknowledge recordation of this Notice of Brownfields Property and the Land Use Restrictions
contained herein.
CONCORD LEVINE HOTELS LLC
By: Concord Manager, LLC, a North Carolina limited liability company, its Manager
By: _____________________________________________
Julie L. Richter
Vice President
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: _____________________
21024-17-060 Block 42 (Final 05-17-2018)
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************************************
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
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21024-17-060 / Block 42 Ex. A (BFA) FINAL
EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: LMC Block 42 Holdings, LLC and LMV Block 42 Holdings, LP
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT ) Block 42 Site
OF 1997, NCGS § 130A-310.30, et seq. ) 500 East Morehead Street, Suite 300
Brownfields Project # 21024-17-060 ) Charlotte, Mecklenburg County
I. INTRODUCTION
This Brownfields Agreement (“Agreement”) is entered into by the North Carolina
Department of Environmental Quality (“DEQ”) and co-Prospective Developers LMC Block 42
Holdings, LLC and LMV Block 42 Holdings, LP (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 500 North College Street, Charlotte, North Carolina (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 co-Prospective Developers are LMC Block 42 Holdings, LLC and LMV Block 42
Holdings, LP. LMC Block 42 Holdings, LLC is a member-managed Delaware Limited Liability
Company registered to do business in North Carolina and is located at 700 N.W. 107th Avenue,
Suite 400, Miami, Florida 33172. LMV Block 42 Holdings, LP is a member-managed Limited
Partnership registered to do business in North Carolina and is located at 700 N.W. 107th Avenue,
Suite 400, Miami, Florida 33172. LMC Block 42 Holdings, LLC and LMV Block 42 Holdings,
LP hereby acknowledge that they will be jointly and severally responsible for any liability
incurred by Prospective Developer, and jointly and severally entitled to all benefits and
protections afforded to Prospective Developer as defined in paragraph 2 below, pursuant to this
Agreement.
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21024-17-060 / Block 42 Ex. A (BFA) FINAL
LMC Block 42 Holdings, LLC and LMV Block 42 Holdings, LP propose to redevelop
the Brownfields Property for no uses other than retail, office, open space, recreation, high-
density residential, hotel, restaurant, brewery or food production facility, storage units, parking,
and, subject to DEQ’s prior written approval, other commercial 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 LMC Block 42 Holdings, LLC and LMV Block 42 Holdings, LP for
contaminants at the Brownfields Property.
The Parties agree that LMC Block 42 Holdings, LLC and LMV Block 42 Holdings, LP’s
entry into this Agreement, and the actions undertaken by LMC Block 42 Holdings, LLC and
LMV Block 42 Holdings, LP in accordance with the Agreement, do not constitute an admission
of any liability by LMC Block 42 Holdings, LLC and LMV Block 42 Holdings, LP for
contaminants at the Brownfields Property. The resolution of this potential liability, in exchange
for the benefit LMC Block 42 Holdings, LLC and LMV Block 42 Holdings, LP 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.
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21024-17-060 / Block 42 Ex. A (BFA) FINAL
2. "Prospective Developer" shall mean LMC Block 42 Holdings, LLC and LMV Block
42 Holdings, LP.
III. STATEMENT OF FACTS
3. The Brownfields Property comprises six parcels totaling 3.55 acres made up of parcels
08004213 (Parcel A), 08004214 (Parcel B), 08004215 (Parcel C), 08004212 (Parcel D),
08004210 (Parcel E), and 08004211 (Parcel F). Historical addresses for the Brownfields
Property include 215, 217, 219, 221, 223, 225 and 229 East Eighth Street; 208, 210, 212, 214,
216, 218 and 228 East Ninth Street; 500, 502, 508, 510, 512, 514 and 516 North College Street.
Prospective Developer has committed itself to redevelopment for no uses other than retail, office,
open space, recreation, high-density residential, hotel, restaurant, brewery or food production
facility, storage units, parking, and, subject to DEQ’s prior written approval, other commercial
uses.
4. The Brownfields Property is bordered to the northeast by East 9th Street, beyond
which is land used for office and parking uses; to the northwest by North College Street, beyond
which is property used for high-density residential, restaurant, office, and parking uses; to the
southwest by East 8th Street, beyond which is property used for institutional, parking, and other
commercial uses; and to the southeast by Charlotte Area Transit System Light Rail Line, beyond
which is property used for recreation, office, restaurant, educational, and parking uses.
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,
Mecklenburg County Tax Blocks 42, 43, 44,
45, 63, and 64
Aware
Environmental Inc. September, 2002
Phase I Environmental Site Assessment
Report First Ward Site, 514 N. College St. Hart and Hickman September 2, 2016
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21024-17-060 / Block 42 Ex. A (BFA) FINAL
Title Prepared by Date of Report
and 228 E. 9th St. Charlotte, NC
Brownfields Assessment Report – Block 42 Hart and Hickman January 22, 2018
Phase II ESA Block 42 – Parcel A Hart and Hickman February 20, 2018
6. For purposes of this Agreement, DEQ relies on the following representations by
Prospective Developer as to use and ownership of the Brownfields Property:
a. The site was first developed as early as the 1880s as a lumber planing mill and
wood product manufacturing company located on the eastern portion of the Brownfields
Property. The business was expanded into the 1910s and the names associated with this business
are Charlotte Planing Mill and Bellows Factory; Charlotte Sash, Door and Blind Manufacturing
Company; and Carolina Manufacturing Company and Planing Mill.
b. Residential properties were constructed on the site in the 1890s and into the
1910s or 1920s. Approximately 14 homes were present at different locations across the
Brownfields Property over time, but only three homes remained by the early 1960s.
c. In the 1910s or 1920s, Carolina Manufacturing Company and Planing Mill and
some homes were demolished which allowed for the construction of a rail spur and a warehouse
on the southern portion of the Brownfields Property. Over time, the occupants in the warehouse
building included a paint and glass company, food broker, automotive supply company, electric
appliance company, printing company, and a beer distributor. Company names associated with
the warehouse occupants include Kilgo Transfer Co. Inc., Mathleson Alkall Works, Carolinas
Auto Supply, Queen City Beverage Inc., Enable Inc Building Specialties, Maverick Printing Co.,
and Angel Spirits Inc. The warehouse was demolished between 1996 and 2005.
d. In 1949, a residence on the northern portion of the Brownfields Property was
demolished and a larger steel framed building was constructed in its place. The use or occupants
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21024-17-060 / Block 42 Ex. A (BFA) FINAL
of that building are not known. The building was later razed between 1968 and 1973. A
separate building on an adjacent area of the northern portion of the site was constructed in the
1960s and its occupants included Hub Uniform Inc., Hub Stinnette Uniform Co. Inc., R & R
Uniforms Inc., Time Lounge, Comedy Zone, C&B Food Mart, and an artist cooperative. The
building was razed in May, 2018.
e. In the early 1950s, a building was constructed on the western portion of the
Brownfields Property and was occupied by Southern Bearing and Parts Co., Inc. and by an
electric appliance company. Southern Bearing and Parts Co. Inc. operated until the 1970s.
Known names of other entities that later occupied the building are Quality Auto Parts Inc., a
Moose Lodge, the Uptown Flea Market, and Center City Packaging and Storage. The building
was demolished by 2005 and the space was paved as part of a commercial parking lot.
f. In the early 1950s, a building was constructed on the eastern portion of the
Brownfields Property where the Carolina Manufacturing Company once stood. Over time, the
building was occupied by Garden and Benoit Inc. restaurant equipment; Scotsman Ice Machine;
Ice Machine Distributors, Inc.; Charlotte Fire Chief; City of Charlotte Emergency Management;
and City of Charlotte Mecklenburg County Government. The building was razed in May, 2018.
g. LMC Block 42 Holdings, LLC acquired the Brownfields Property, then
composed of seven separate parcels, from Ninth Street Investors LLC on January 18, 2017. The
seven parcels were then recombined into six parcels, as reflected on Exhibit B, on March 23,
2017. LMC Block 42 Holdings, LLC then transferred Parcels B, C, D, E, and F to LMV Block
42 Holdings, LP on April 18, 2017. LMC Block 42 Holdings, LLC transferred Parcel A to
Concord Levine Hotels LLC on March 15, 2018.
7. Pertinent environmental information regarding the Brownfields Property and
surrounding area includes the following:
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21024-17-060 / Block 42 Ex. A (BFA) FINAL
a. A storage tank for boiler fuel was believed to have been present at the planing
mill, and a fuel storage tank for vehicles was believed to be present at the warehouse on the
southern portion of the Brownfields Property.
b. Homes on and around the Brownfields Property are known to have had home
heating oil tanks.
c. The suspected source of the chlorinated solvents detected in groundwater at the
Brownfields Property is the former Southern Bearing and Parts Company, which operated on the
western portion of the Brownfields Property.
d. A small volume of potassium cyanide was packaged into a 5-gallon container
and removed from a business located on the Brownfields Property in 2003. The material was
packaged, transported and incinerated by an EPA contractor in this non-CERCLA event. No
material was noted as having been released at the Brownfields Property.
8. The most recent environmental sampling at the Brownfields Property reported in the
Environmental Reports occurred on January 12, 2018. The tables set forth in Exhibit 2 to this
Agreement present contaminants present at the Brownfields Property above applicable standards
or screening levels for each media sampled.
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 May 3, 2017, and an
amended BPA on May 31, 2017, and the following:
a. On January 18, 2017, LMC Block 42 Holdings, LLC purchased the eight
parcels that made up the Brownfields Property as it was then configured.
b. On March 23, 2017, LMC Block 42 Holdings, LLC recombined the eight parcels
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into six parcels.
c. On April 18, 2017, LMC Block 42 Holdings, LLC transferred five of the six
recombined parcels to the sole ownership of LMV Block 42 Holdings, LP.
d. On March 15, 2018, LMC Block 42 Holdings, LLC transferred the sixth parcel
to Concord Levine Hotels LLC.
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
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. The Parties agree that a $30,000 “Redevelopment Now” fee Prospective Developer
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has paid suffices 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. an increase in the Brownfields Property’s productivity;
b. a spur to additional community investment and redevelopment, through
improved neighborhood appearance and otherwise;
c. an increase in tax revenue for affected jurisdictions;
d. additional high density residential, and additional retail, commercial, office,
restaurant, and hotel space for the area;
e. expanded use of LYNX light rail public transportation system which reduces
traffic, improves air quality, and reduces our carbon footprint; 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
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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
with the land, to make the Brownfields Property suitable for the uses specified in this Agreement
while fully protecting public health and the environment instead of remediation to unrestricted
use standards. All references to DEQ shall be understood to include any successor in function.
a. No use may be made of the Brownfields Property other than for retail, office,
open space, recreation, multi-family residential, high-density residential, hotel, restaurant,
brewery or food production facility, storage units, parking, and, subject to DEQ’s prior written
approval, other commercial uses. For purposes of this restriction, the following definitions
apply:
i. “Retail” is defined as the sale of goods or services, products, or
merchandise directly to the consumer or businesses and includes showrooms, personal service,
and the sales of food and beverage products. For the purposes of this Agreement, retail excludes
use as a dry cleaner using chlorinated solvents.
ii. “Office” is defined as the provision of business or professional services.
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iii. “Open space” is defined as land maintained in a natural or landscaped
state and used for natural resource protection, buffers, greenways, or detention facilities for
stormwater.
iv. “Recreation” is defined as indoor and outdoor exercise-related,
physically focused, or leisure-related activities, whether active or passive, and the facilities for
same, including, but not limited to, studios, swimming pools, sports-related courts and fields,
open space, greenways, parks, playgrounds, walking paths, and picnic and public gathering
areas.
v. “High density residential” is defined as permanent dwellings where
residential units are attached to each other with common walls, such as condominia, apartments,
group homes, dormitories or boarding houses, and any property outside the dwelling structures is
usable by all residents and not privately owned as part of a particular unit, and shall include
related amenities, such as pools, clubhouses, courtyards, common areas, recreation areas and
parking garages. Ground floor units are prohibited unless approved in writing by DEQ in
advance.
vii. “Hotel” is defined as the provision of overnight lodging to paying
customers, and to associated food services, gym, reservation, cleaning, utilities, parking, and on-
site hospitality, management and reception services.
viii. “Restaurant” is defined as a commercial business establishment that
prepares and serves food and beverages to patrons.
ix. “Brewery or Food Production Facility” is defined as an establishment
for the manufacture, sale and distribution of beverages or food products, including without
limitation beer and ale, together with associated public roadways and related infrastructure.
x. “Storage unit” is defined as space that is commercially rented on a
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short- or long-term basis by consumers and businesses for the storage of personal effects,
household goods, equipment and other non-hazardous materials that are in compliance with all
other aspects of this Agreement.
xi. “Parking” is defined as the temporary accommodation of motor
vehicles in an area designed for same.
xii. “Commercial” is defined as an enterprise carried on for profit or
nonprofit by the owner, lessee or licensee. For the purposes of this Agreement, this excludes use
as a dry cleaner using chlorinated solvents.
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. 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:
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
Exhibit 2 to this Agreement;
iii. contingency plans for addressing, including without limitation the
testing of soil and groundwater, newly discovered potential sources of environmental
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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.
d. No use of the Brownfields Property as specified in subparagraph 15.a. may occur
until the then-owner of the Brownfields Property conducts representative final grade soil sampling
pursuant to a plan approved in writing by DEQ of any area of the Brownfields Property that will
not be covered by building foundations, sidewalks, or asphaltic or concrete parking areas and
driveways unless otherwise approved in writing by DEQ in advance.
e. Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
f. No activity that disturbs soil on the Brownfields Property may occur 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, except:
i. in connection with landscape planting to depths not exceeding 24 inches;
ii. mowing and pruning of above-ground vegetation;
iii. for repair of underground infrastructure, provided that DEQ shall be
given written notice at least seven days in advance of a scheduled repair (if only by email) of any
such repair, or in emergency circumstances no later than the next business day, and that any
related assessment and remedial measures required by DEQ shall be taken and;
iv. in connection to work conducted in accordance with the EMP as
outlined in subparagraph 15.c.
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g. Soil may not be removed from, or brought onto, the Brownfields Property
without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless
conducted in accordance with an approved EMP as outlined in subparagraph 15.c.
h. No enclosed building may be constructed on the Brownfields Property and no
existing building, defined as those depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 20 below, may be occupied, 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
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.
i. By January 31 of each one-year anniversary of the effective date of this
Agreement, and for as long as physical redevelopment of the Brownfields Property continues
(except that the final deadline shall fall 90 days after the conclusion of physical redevelopment),
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the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ
approval on environment-related activities since the last report, with a summary and drawings,
that describes:
i. actions taken on the Brownfields Property in accordance with the EMP
required by subparagraph 15.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
v. removal of any contaminated soil, water or other contaminated
materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all
legally required manifests shall be included).
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. None of the contaminants known to be present in the environmental media at
the Brownfields Property, as described in 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:
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i. in de minimis quantities for cleaning and other routine housekeeping
and maintenance activities;
ii. as fuel or other fluids customarily used in vehicles, landscaping
equipment, and emergency generators; and
iii. as constituents of products and materials customarily used and stored
in retail, office, open space, recreation, high-density residential, hotel, brewery or food
production, storage units, parking, or commercial environments, provided such products and
materials are stored in original retail packaging and used and disposed of in accordance with
applicable laws.
l. 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.
m. 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 subparagraph:
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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
subparagraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section
XV (Notice 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.
n. 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 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. The submitted LURU shall state the following:
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;
iii. whether any vapor barrier and/or mitigation systems installed pursuant
to subparagraph 15.h. 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 joint LURU may be submitted for multiple owners by a duly
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constituted board or association and shall include the name, mailing address, telephone and
facsimile numbers, and contact person’s e-mail address of the entity submitting the joint LURU
as well as for each of the owners on whose behalf the joint LURU is submitted.
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
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
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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
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
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to comply with the obligations of this paragraph: (i) If every lease and rider is identical in form,
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.
VIII. CERTIFICATION
24. By entering into this Agreement, the Prospective Developer certifies that, without
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DEQ approval, it will make no use of the Brownfields Property other than that committed to in
the Brownfields Property Application dated May 3, 2017, and by the Amended Brownfields
Property Application dated May 31, 2017, by which it applied for this Agreement. That use is
retail, office, open space, recreation, multi-family residential, high-density residential, hotel,
restaurant, brewery or food production facility, storage units, parking, and, subject to DEQ’s
prior written approval, other commercial uses. 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 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
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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
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
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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, but not limited to, 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
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
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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.
XIII. DOCUMENT RETENTION
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
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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
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:
Brad Atkinson (or successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Jeffrey W. Harris (or successor in function)
LMC Block 42 Holdings, LLC and LMV Block 42 Holdings, LP
500 East Morehead Street, Suite 300
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Charlotte, NC 28202
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
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
26
21024-17-060 / Block 42 Ex. A (BFA) FINAL
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.
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.
27
21024-17-060 / Block 42 Ex. A (BFA) FINAL
IT IS SO AGREED:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
By:
____________________________________________________________________________
Michael E. Scott Date
Director, Division of Waste Management
IT IS SO AGREED:
By:
LMC Block 42 Holdings, LLC
a Delaware limited liability company
By: Lennar MF Holdings, LLC
a Delaware limited liability company, its sole member
By: Lennar Multifamily Communities, LLC
a Delaware limited liability company, its sole member
By: __________________________________________________________________________
Jeffrey Harris, Vice President Date
LMV Block 42 Holdings, LP
a Delaware limited partnership
By: Lennar Multifamily BTC Venture GP Subsidiary, LLC
a Delaware limited liability company, its general partner
By: Lennar Multifamily BTC Venture Manager, LLC
a Delaware limited liability company, its manager
By: __________________________________________________________________________
Jeffrey Harris, Vice President Date
Exhibit 1
Location Map
21024-17-060/Block 42
1
Exhibit 2
The most recent environmental sampling at the Property reported in the Environmental Reports
occurred on January 12, 2018. The following tables set forth, for contaminants present at the
Brownfields 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
(g/L)
2L Standard
(g/L)
Trichloroethylene TMW-3 09/21/2017 510 3 TMW-4 09/21/2017 59
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 Residential Vapor Intrusion Screening Levels of the Division of Waste Management
February 2018 version):
Groundwater
Contaminant with
Potential for Vapor
Intrusion
Sample
Location
Date of
Sampling
Concentration
Exceeding
Screening
Level (g/L)
Residential VI
Screening
Level1
(g/L)
Trichloroethylene TMW-3 09/21/2017 510 1.0 TMW-4 09/21/2017 59
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.
21024-17-060/Block 42
2
SOIL
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 Soil Remediation Goals
of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section (February 2018 version):
Soil
Contaminant
Sample
Location
Depth
(ft)
Date of
Sampling
Concentration
Exceeding
Screening
Level
(mg/kg)
Unrestricted
Use Screening
Level1 (mg/kg)
Arsenic
SB-1 0-2 09/20/2017 0.98
0.68
SB-2 0-2
1.1
SB-3 2-4 2.0
SB-4 0-2 0.87
SB-6 7-9 1.6
SB-7 0-2 1.6
SB-8 0-2 1.5
SB-9 0-2 9/21/2017 5.3
SB-10 5-7
01/11/2018
0.964
SB-11 1-3 0.830
SB-12 1-3 0.700
SB-13 7-9 0.875
SB-14 1-3 1.43
Hexavalent
Chromium
SB-1 0-2
09/20/2017
0.36 J
0.30 SB-2 0-2 0.50
SB-7 0-2 0.67
Benzo(a)pyrene SB-9 0-2 09/21/2017 0.33 0.11 SB-15 1-3 01/11/2018 0.284
1Screening levels displayed for non-carcinogens are for a hazard quotient equal to 0.2. Screening levels
displayed for carcinogens are for a 1.0E-6 lifetime incremental cancer risk.
J = compound detected above laboratory method detection limit, but below the laboratory reporting limit
resulting in a laboratory estimated concentration
21024-17-060/Block 42
3
SOIL GAS
Soil gas contaminants in micrograms per cubic meter, the screening levels for which are derived
from Residential Vapor Intrusion Screening Levels of the Division of Waste Management
(February 2018 version):
Soil Gas Contaminant Sample
Location
Date of
Sampling
Concentration
Exceeding
Screening Level
(µg/m3)
Residential VI
Screening Level1
(g/m3)
Trichloroethylene SG-3 11/16/2017 1,100 14 SG-4 11/16/2017 220
1Screening 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.
Exhibit C
Legal Description
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 a an existing iron pipe at the intersection of the northeasterly right-of-way
margin of East 8th Street (30 foot public R/W) and the southeasterly right-of-way margin of
North College Street (50 foot public R/W), said point being located N 34°24'06" W a distance
of 2696.95 feet from NGS Monument "McDowell" (having NC Grid Coordinates N: 541,237.39,
E: 1,452,816.02); Thence with and along said southeasterly right-of-way margin of North
College Street for the following three (3) courses and distances: 1) N 49°35'03" E a distance of
140.14 feet to a new nail; 2) N 49°49'27" E a distance of 54.59 feet to a new nail; 3) N 50°17'27"
E a distance of 191.95 feet to an existing 1 inch iron pipe at the intersection of the southeasterly
right-of-way margin of North College Street and the southwesterly right-of-way margin of East
9th Street (50 foot public R/W); Thence with and along said southwesterly right-of-way margin of
East 9th Street for the following two (2) courses and distances: 1) S 42°48'09" E a distance of
146.95 feet to an existing 1 inch iron pipe; 2) S 42°58'28" E a distance of 243.65 feet to a new
nail, said point being the northern corner of the property of City of Charlotte (now or formerly)
as described in Deed Book 29691, Page 947 in the Mecklenburg County Public Registry; Thence
with and along the northwesterly boundary of said property of City of Charlotte S 47°50'46" W a
distance of 388.61 feet to a new nail on the northeasterly right-of-way margin of East 8th Street;
Thence with and along said northeasterly right-of-way margin of East 8th Street for the
following two (2) courses and distances: 1) N 42°57'32" W a distance of 128.80 feet to a new 1/2
inch iron rod; 2) N 42°23'23" W a distance of 276.11 feet to the point of BEGINNING;
Having an area of 154,441 square feet or 3.5455 acres, as shown on a survey prepared by R. B.
Pharr & Associates, P.A. dated August 1, 2016 (Map File W-5146BF). Job No. 88082.