HomeMy WebLinkAbout22007 NBP for PC South Tryon Commercial 22007 20190125
22007-18-060/South Tryon Commercial (20181221)
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Property Owner: RRPV South Tryon Charlotte LP
Recorded in Book ____, Page ____
Associated plat recorded in Plat Book ____, Page ____
NOTICE OF BROWNFIELDS PROPERTY
Site Name: South Tryon Commercial
Brownfields Project Number: 22007-18-060
This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat
component, have been filed this _____ day of __________________, 201__ by
______________________________ (“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 located at 2001 and 2027 South Tryon Street, Charlotte, Mecklenburg
County. The Brownfields Property (Parcel IDs 12103301 and 12103302) is approximately 2.39 acres and is
currently undeveloped. The Prospective Developer intends to redevelop the Brownfields Property for multi-
family residential, office, retail, open space, parking, restaurant, brewery or food production facility, and, subject
to DEQ’s prior written approval, other commercial uses. The west-central portions of the Brownfields Property
along S. Tryon Street were developed with a farm machinery service company in 1937 that was later used as an
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electrical supply warehouse. The electrical service warehouse operated until the 1990s when the building was
occupied by Grinnell Fire Sprinkler Systems. This portion of the Brownfields Property was then vacant until 2005
when it was purchased by DCI properties and leased to a dog daycare center. The building was demolished in
2011. The southern portions of the Brownfields Property were occupied by a motor freight company beginning
in the 1940s and later a welding supply company in the 1960s. The southeastern portion of the Brownfields
Property was occupied by an electrical service company and an automotive repair company from 1948 until the
mid-1960s, and a warehouse building from 1947 until the late 1960s. In 1980, B&B Contracting Co, Inc.
purchased the three buildings and utilized the facility as a drywall contracting business from 1980 until the late
2000s. The northern portion of the Brownfields Property was undeveloped until the 1960s when it was developed
with a Terminix pest control facility and operated until the late 2000s. Groundwater, soil, and soil vapor are
contaminated at the Brownfields Property due to historical activities on the Brownfields Property.
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 land use restrictions below have been EXCERPTED VERBATIM from paragraph 15 of the
Brownfields Agreement, and all subparagraph letters/numbers are the same as those used in the
Brownfields Agreement. The following land use restrictions are hereby imposed on the Brownfields
Property:
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a. No use may be made of the Brownfields Property other than for multi-family residential, retail,
office, recreation, open space, parking, restaurant, brewery or food production facility, and, subject to
DEQ’s prior written approval, other commercial uses. For purposes of this restriction, the following
definitions apply:
i. “Multi-Family Residential” defined as multi-unit human dwellings, such as condominia,
or apartments. Single family homes, townhomes, duplexes, or other units with yards are prohibited unless
approved in writing by DEQ in advance.
ii. “Retail” 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.
iii. “Office” defined as the provision of business or professional services.
iv. “Parking” defined as the temporary accommodation of motor vehicles in an area designed
for same.
v. “Open Space” defined as land maintained in a natural or landscaped state and used for
natural resource protection, buffers, greenways, detention facilities for stormwater, or similar purposes.
vi. “Recreation” 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.
vii. “Restaurant” defined as a commercial business establishment that prepares and serves
food and beverages to patrons.
viii. “Brewery or Food Production Facility” 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.
ix. “Commercial” defined as an enterprise carried on for profit or nonprofit by the owner,
lessee or licensee.
b. Groundwater at the Brownfields Property may not be used for any purpose 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:
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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.
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;
d. No residential use of the Brownfields Property may occur until the then owner of the Brownfields
Property conducts representative final grade soil sampling of any area within the Brownfields Property
pursuant to a plan approved in writing by DEQ that is not covered by building foundations, sidewalks, or
asphaltic or concrete parking areas and driveways.
e. Unless otherwise approved by DEQ in writing after results of final grade soil sampling are
received per subparagraph 15.d, above, 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”;
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 a DEQ-approved EMP as outlined
in subparagraph 15.c.
f. 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.
g. No enclosed building 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 Brownfields Property assessment data or a site-specific
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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.
h. As part of the Land Use Restriction Update described below in subparagraph 15.l for each year
after the year in which the Notice referenced below in Paragraph 20 is recorded, 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:
i. actions taken on the Brownfields Property in accordance with Section V: Work to be
Performed 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).
i. 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.
j. 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 ____.”
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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 (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.
k. 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.
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 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.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. LURU’s submitted for any portion of the Brownfields Property that contains rental units
shall include a list of tenants and their addresses.
v. 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 subparagraphs 15.j and paragraph 21 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.
vi. A property owners’ association or other entity may perform this LURU’s duties, on
behalf of some or all owners of the Brownfields Property, if said association or entity has accepted
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responsibility for such performance pursuant to a notarized instrument satisfactory to DEQ that includes
at a minimum, the name, mailing address, telephone and facsimile numbers, and e-mail address of each
owner on whose behalf the LURU is proposed to be 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
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.
IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this
_____ day of _______________, 201__.
RRPV South Tryon Charlotte LP
By: __________________________________________
Name typed or printed:
Title typed or printed:
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: ________________________________.
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Date: ___________________ ___________________________________
Official Signature of Notary
___________________________________
Notary’s printed or typed name, Notary Public
(Official Seal) My commission expires: _____________________
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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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EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: RRPV South Tryon Charlotte LP
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT ) South Tryon Commercial
OF 1997, NCGS § 130A-310.30, et seq. ) 2001 and 2027 S. Tryon Street
Brownfields Project # 22007-18-060 ) Charlotte, Mecklenburg
I. INTRODUCTION
This Brownfields Agreement (“Agreement”) is entered into by the North Carolina
Department of Environmental Quality (“DEQ”) and RRPV South Tryon Charlotte 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 2001 and 2027 South Tryon Street,
Charlotte (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.
RRPV South Tryon Charlotte LP is a North Carolina limited partnership that was formed
on October 30, 2018. Its registered agent is Ram Realty Advisors LLC, and its business address
is 4801 PGA Boulevard, Palm Beach Gardens, Florida 33418. The Brownfields Property (Parcel
IDs 12103301 and 12103302) is approximately 2.39 acres and is currently undeveloped. RRPV
South Tryon Charlotte LP intends to redevelop the Brownfields Property for multi-family
residential, office, retail, open space, parking, restaurant, brewery or food production facility,
and, subject to DEQ’s prior written approval, other commercial uses. The Brownfields Property
is surrounded by land in commercial, residential and light industrial use. Groundwater is
contaminated at the Brownfields Property due to historical activities on nearby properties.
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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 RRPV South Tryon Charlotte LP for contaminants at the Brownfields
Property.
The Parties agree that RRPV South Tryon Charlotte LP’s entry into this Agreement, and
the actions undertaken by RRPV South Tryon Charlotte LP in accordance with the Agreement,
do not constitute an admission of any liability by RRPV South Tryon Charlotte LP for
contaminants at the Brownfields Property. The resolution of this potential liability, in exchange
for the benefit RRPV South Tryon Charlotte 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.
2. "Prospective Developer" shall mean RRPV South Tryon Charlotte LP.
III. STATEMENT OF FACTS
3. The Brownfields Property comprises two parcels totaling 2.39 acres. Prospective
Developer has committed itself to redevelopment for no uses other than multi-family residential,
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office, retail, open space, parking, restaurant, brewery or food production facility, and, subject to
DEQ’s prior written approval, other commercial uses.
4. The Brownfields Property is bordered to the north by S. Tryon St. and Doggett St.,
beyond which is mixed use office space with multiple owners; to the east by high density
residential owned by 330 West Tremont LLC (NC Brownfields Project #: 14009-10-60); to the
south by W. Tremont Ave. beyond which is property zoned light industrial and owned by Dado
Investment LLC; and to the west by S. Tryon St. beyond which is property used for offices with
multiple owners.
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
Summary of Previous Groundwater
Assessment Activities, S. Tryon Commercial,
Charlotte, NC
Hart & Hickman, PC November 15, 2018
Brownfields Assessment Report, South Tryon
Commercial, Charlotte, NC
Hart & Hickman, PC July 9, 2018
Phase I ESA, S. Tryon and W. Tremont
Properties, Charlotte, NC
Hart & Hickman, PC December 28, 2017
Draft Phase I Environmental Site Assessment,
Tryon and Tremont Site, Charlotte, NC
Geoscience Group,
Inc.
July 29, 2008
Underground Storage Tank Closure Letter,
312 W. Tremont Avenue, Charlotte, NC
Nationwide Tank and
Environmental
Services, Inc.
July 19, 1991
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. West-central portions of the Brownfields Property along S. Tryon Street were
developed with a farm machinery service company in 1937 that was later used as an electrical
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supply warehouse. An addition was constructed on the northern side of the electrical supply
warehouse in the late 1970s. The electrical service warehouse operated until the 1990s when the
building was occupied by Grinnell Fire Sprinkler Systems. This portion of the Brownfields
Property was then vacant until 2005 when it was purchased by DCI properties and leased to a
dog daycare center. The building was demolished in 2011.
b. A restaurant operated in the west-central portion of the Brownfields Property
south of the electrical supply warehouse building between 1948 and the mid-1960s. The
restaurant building was demolished in the early 1980s and that portion of the Brownfields
Property was not redeveloped.
c. The southern portions of the Brownfields Property were occupied by a motor
freight company beginning in the 1940s and later a welding supply company in the 1960s. The
southeastern portion of the Brownfields Property was occupied by an electrical service company
and an automotive repair company from 1948 until the mid-1960s, and a warehouse building
from 1947 until the late 1960s. In 1980, B&B Contracting Co, Inc. purchased the three buildings
and utilized the facility as a drywall contracting business from 1980 until the late 2000s.
d. The northern portion of the Brownfields Property was undeveloped until the
1960s when it was developed with a Terminix pest control facility and operated until the late
2000s.
e. The buildings on the Brownfields Property were razed in 2011 and the
Brownfields Property is currently vacant.
7. Pertinent environmental information regarding the Brownfields Property and
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surrounding area includes the following:
a. A Terminix pest control facility operated on the northern portion of the
Brownfields Property and on the adjacent property. Environmental assessment activities and
remedial activities were conducted on the adjacent property under NCDEQ Brownfields
Agreement No. 14009-10-60. Results from the brownfields assessments indicated that a source
area from historical release of pesticides was delineated on the adjacent property. A total of
approximately 8,473 tons of nonhazardous pesticide impacted soil and approximately 556 tons of
hazardous pesticide impacted soil was removed from and transported off-site for disposal.
Results of post-excavation soil samples indicate that no pesticide compounds were detected at
concentrations exceeding the IHSB Residential PSRGs.
b. B&B Contracting Company, Inc. formerly located at 312 West Tremont
Avenue was formerly located in the southern portion of the Brownfields Property. According to
information provided in the Underground Storage Tank (UST) Closure letter, two 6,000-gallon
gasoline UST systems including product and vent lines, and dispenser islands were installed in
1971 and were removed in 1991. UST closure soil samples collected beneath each of the USTs at
the time of removal were submitted to a laboratory for analysis of Total Petroleum Hydrocarbons
(EPA Methods 5030/3550) and laboratory results indicated that no compounds were detected
above the laboratory reporting limits. DEQ issued a No Further Action (NFA) letter dated July
25, 1991 based on results of the UST closure activities.
c. Virginia Carolina Chemical Charlotte formerly located at 249 Tremont Avenue
(EPA ID NCN000410661) is located adjacent to the south across W. Tremont Avenue and
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topographically cross-gradient to upgradient of the Brownfields Property. The Virginia Carolina
Chemical Company formerly operated as a phosphate fertilizer plant from at least the 1890s until
the 1930s. Soil at the facility is impacted by arsenic and lead as a result of the former activities
and ExxonMobil is identified as the responsible party for the cleanup. Results of groundwater
assessment activities indicate the presence of low levels of lead, arsenic, tetrachloroethylene
(“PCE”), and trichloroethylene (“TCE”) in groundwater at concentrations exceeding the NC 2L
Groundwater Standards.
d. The Atherton Mill Brownfields Property (NC Brownfields Project No. 10047-
06-60) is located approximately 1,100 feet east-southeast and topographically upgradient of the
Brownfields Property. Atherton Mill manufactured textile-related equipment. VOC impacts in
groundwater extend downgradient of the Atherton Mill Brownfields Property and have been
identified within approximately 400 feet of the Brownfields Property. Plume migration modeling
prepared by the consultant for Atherton Mill indicated that the groundwater impacts will reach
Irwin Creek which is located west of the subject Brownfields Property.
e. In July 2007, Hart & Hickman conducted soil and groundwater sampling
activities at the Brownfields Property on behalf of a previous prospective purchaser. Results of
groundwater assessment activities identified low levels of PCE and TCE, the organochlorine
pesticides aldrin and dieldrin, and the metal selenium at concentrations above NC 2L
Groundwater Standards.
f. In accordance with the DEQ Brownfields approved Brownfields Assessment
Work Plan dated May, 9, 2018, a limited soil and soil gas investigation was conducted at the
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Brownfields Property in May 2018. Investigation results showed TCE exceeding residential
vapor intrusion screening levels for soil gas. Soil sampling results showed hexavalent chromium
and arsenic at concentrations in soil exceeding residential screening levels. The results showed
no detections of any constituents above non-residential screening levels.
8. The most recent environmental sampling at the Brownfields Property reported in the
Environmental Reports occurred on May 18, 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 July 17, 2017 which was
amended on November 20, 2018, contracting to purchase the Brownfields Property on February
23, 2017, and closing on the Brownfields Property on November 1, 2018.
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);
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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
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;
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b. a spur to additional community investment and redevelopment, through
improved neighborhood appearance and otherwise;
c. the creation of jobs;
d. “smart growth” through use of land in an already developed area, which avoids
development of land beyond the urban fringe (“greenfields”); and
e. an increase in tax revenue for affected jurisdictions.
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.
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
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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 multi-family
residential, retail, office, recreation, open space, parking, restaurant, brewery or food production
facility, and, subject to DEQ’s prior written approval, other commercial uses. For purposes of
this restriction, the following definitions apply:
i. “Multi-Family Residential” defined as multi-unit human dwellings,
such as condominia, or apartments. Single family homes, townhomes, duplexes, or other units
with yards are prohibited unless approved in writing by DEQ in advance.
ii. “Retail” 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.
iii. “Office” defined as the provision of business or professional services.
iv. “Parking” defined as the temporary accommodation of motor vehicles
in an area designed for same.
v. “Open Space” defined as land maintained in a natural or landscaped
state and used for natural resource protection, buffers, greenways, detention facilities for
stormwater, or similar purposes.
vi. “Recreation” 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.
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vii. “Restaurant” defined as a commercial business establishment that
prepares and serves food and beverages to patrons.
viii. “Brewery or Food Production Facility” 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.
ix. “Commercial” defined as an enterprise carried on for profit or
nonprofit by the owner, lessee or licensee.
b. Groundwater at the Brownfields Property may not be used for any purpose
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.
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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;
d. No residential use of the Brownfields Property may occur until the then owner
of the Brownfields Property conducts representative final grade soil sampling of any area within
the Brownfields Property pursuant to a plan approved in writing by DEQ that is not covered by
building foundations, sidewalks, or asphaltic or concrete parking areas and driveways.
e. Unless otherwise approved by DEQ in writing after results of final grade soil
sampling are received per subparagraph 15.d, above, 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”;
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
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related assessment and remedial measures required by DEQ shall be taken and;
iv. in connection to work conducted in accordance with a DEQ-approved
EMP as outlined in subparagraph 15.c.
f. 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.
g. No enclosed building 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 Brownfields Property
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
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demonstrating performance of said measures.
h. As part of the Land Use Restriction Update described below in subparagraph
15.l for each year after the year in which the Notice referenced below in Paragraph 20 is
recorded, 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:
i. actions taken on the Brownfields Property in accordance with Section
V: Work to be Performed 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).
i. 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
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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.
j. 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 (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.
k. 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
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waived in writing by DEQ in advance.
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
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.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. LURU’s submitted for any portion of the Brownfields Property that
contains rental units shall include a list of tenants and their addresses.
v. A LURU submitted for rental units shall include the rent roll and
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enough of each lease entered into during the previous calendar year to demonstrate compliance
with lessee notification requirements in subparagraphs 15.j and paragraph 21 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.
vi. A property owners’ association or other entity may perform this
LURU’s duties, on behalf of some or all owners of the Brownfields Property, if said association
or entity has accepted responsibility for such performance pursuant to a notarized instrument
satisfactory to DEQ that includes at a minimum, the name, mailing address, telephone and
facsimile numbers, and e-mail address of each owner on whose behalf the LURU is proposed to
be 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
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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.i. 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
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
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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,
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
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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 subparagraph 35.a below
of any such required notification.
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 July 17, 2017 as amended on November 20, 2018,
by which it applied for this Agreement. That use is multi-family residential, retail, office,
recreational, open space, parking, restaurant, brewery or food production facility, and, subject to
DEQ’s prior written approval, other commercial uses. Prospective Developer also certifies that
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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
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
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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 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.
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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.
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
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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
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
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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:
William L. Schmithorst (or successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Keith L. Cummings
(or successor in function)
RRPV South Tryon Charlotte LP
4801 PGA Boulevard Palm Beach Gardens, Florida 33418
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.
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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.
XIX. PUBLIC COMMENT
41. This Agreement shall be subject to a public comment period of at least 30 days
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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.
IT IS SO AGREED:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
By:
____________________________________________________________________________
Michael E. Scott Date
Director, Division of Waste Management
IT IS SO AGREED:
RRPV SOUTH TRYON CHARLOTTE LP, a North Carolina Limited Partnership
By: RRPV South Tryon Charlotte GP LLC, a North Carolina limited liability company, as General
Partner
By: Ram Realty Associates V LLC, a Delaware limited liability company, as Manager
By:
____________________________________________________________________________
Keith L. Cummings
Date
Manager
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22007-18-060/South Tryon Commercial (20181221)
1
Exhibit 2
The most recent environmental sampling at the Property reported in the Environmental
Reports occurred on May 18, 2018. The following tables set 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 (g/L)
Standard
(g/L)
Aldrin DPT-8 7/23/2007 0.63 0.002
Dieldrin DPT-8 7/23/2007 0.75 0.002 DPT-9 7/24/2007 0.15
Endrin Aldehyde DPT-8 7/23/2007 0.32 NS1
Selenium DPT-2 7/20/2007 30 20
Tetrachloroethylene MW-3 8/9/2007 1.6 0.7
Trichloroethylene
DPT-2 7/20/2007 5.7
3.0 DPT-9 7/24/2007 14
MW-3 8/9/2007 11
1 NS – Screening level or regulatory standard has not been established
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):
22007-18-060/South Tryon Commercial (20181221)
2
Groundwater
Contaminant
Sample
Location
Date of
Sampling
Concentration
Exceeding
Screening
Level (g/L)
Residential VI
Screening
Level
(g/L)1
Non-
Residential
Screening
Level (g/L)1
Chloroform DPT-2 7/20/2007 20 8.1 36
Trichloroethylene
DPT-2 7/20/2007 5.7
1.0
4.4
DPT-8 7/24/2007 2.5
DPT-9 7/24/2007 14
MW-3 8/9/2007 11
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.
SOIL
Soil contaminants in milligrams per kilogram (the equivalent of parts per million), the
screening levels for which are derived from the Preliminary Residential 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
Residential
Screening
Level
(mg/kg)
Residential
Screening
Level1
(mg/kg)
Industrial /
Commercial
Screening,
Level1
(mg/kg)
Benzo(a)pyrene SB-6 Dup 0-2 5/18/2018 0.17 0.11 2.1
Arsenic
SB-1 1-2 5/17/2018 1.0
0.68
3.0
SB-2 0-1 5/17/2018 1.4
SB-3 2-3 5/17/2018 1.1
SB-4 0-2 5/18/2018 1.0
SB-5 0-2 5/18/2018 2.0
SB-6 0-2 5/18/2018 1.6
BKG-02 0.5-1.5 5/18/2018 2.6
Hexavalent
Chromium
SB-2 0-1 5/17/2018 0.43
0.31
SB-5 0-2 5/18/2018 0.39 6.5
SB-6 0-2 5/18/2018 0.38
BKG-02 0.5-1.5 5/18/2018 0.63
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.
NE – No established screening level
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):
22007-18-060/South Tryon Commercial (20181221)
3
Soil Gas
Contaminant
Sample
Location
Date of
Sampling
Concentration
Exceeding
Residential
Screening
Level (g/m3)
Residential
Screening
Limit1
(g/m3)
Non-
Residential
Screening
Limit1
(g/m3)
Chloroform
VMP-1 5/18/2018 72
41
VMP-2 5/18/2018 69
VMP-4 5/18/2018 54 530
VMP-5 5/18/2018 46
VMP-6 5/18/2018 290
VMP-7 5/18/2018 360
Trichloroethene
VMP-1 5/18/2018 66
14
180 VMP-2 5/18/2018 42
VMP-3 5/18/2018 53
VMP-5 5/18/2018 70
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
TAX PARCEL 12103302 LEGAL DESCRIPTION
BEGINNING AT A POINT BEING THE NORTHWEST CORNER OF TAX PARCEL 12103302 AND A
COMMON CORNER WITH 2001 SOUTH TRYON LLC (DB 27409 PG 714); LOCATED ON THE RIGHT‐
OF‐WAY SOUTH TRYON STREET IN THE CITY OF CHARLOTTE, MECKLENBURG COUNTY, NC WITH
THE NC GRID COORDINATES N: N 537,425.646 E: E 1,442,896.427; SAID POINT IS A #4 REBAR.
THENCE WITH THE RIGHT‐OF‐WAY 3 CALLS (1) S 55‐53‐22 W 42.26' TO A 1’ PIPE, (2) ALONG AN
ARC WITH A LENGTH OF 425.33' A RADIUS OF 924.93' AND A CHORD OF 421.59' WITH A
BEARING OF S 42‐47‐53 W TO AN “X” IN THE SIDEWALK AT THE INTERSECTION OF WEST
TREMONT STREET AND SOUTH TRYON STREET, THENCE WITH THE RIGHT‐OF‐WAY OF TREMONT
STREET ALONG AN ARC WITH A LENGTH OF 46.51' A RADIUS OF 37.00' AND A CHORD OF 43.51'
WITH A BEARING OF S 25‐09‐02 E TO A 1” PIPE, CONTINUING WITH TREMONT S 81‐17‐00 E
301.42' TO A 1” PIPE AND THE COMMON CORNER WITH 330 WEST TREMONT LLC, THENCE 2
CALLS WITH 330 WEST TREMONT LLC (1) N 08‐43‐00 E 352.58' TO MAG NAIL, (2) N 53‐43‐00 E
1.99' TO A MAG NAIL AND COMMON CORNER WITH TAX PARCEL 12103301, THENCE WITH
PARCEL 12103301 N 36‐10‐50 W 84.76' TO THE POINT OF BEGINNING CONTAINING 91,276
SQ.FT./2.095 ACRES.
TAX PARCEL 12103301 LEGAL DESCRIPTION
BEGINNING AT A POINT BEING THE NORTHWEST CORNER OF TAX PARCEL 12103301 AND A
COMMON CORNER WITH TAX PARCEL 12103302 (THE HORNE COMPANY) LOCATED ON THE
RIGHT‐OF‐WAY SOUTH TRYON STREET IN THE CITY OF CHARLOTTE, MECKLENBURG COUNTY,
NC WITH THE NC GRID COORDINATES N: N 537,425.646 E: E 1,442,896.427; SAID POINT IS A #4
REBAR.
THENCE WITH THE RIGHT‐OF‐WAY 2 CALLS (1) N 55‐53‐22 E 54.19' TO A 1” ROD, THENCE (2) N
55‐55‐32 E 36.01' TO AN “X” IN THE SIDEWALK AT THE INTERSECTION OF THE RIGHT‐OF‐WAY
OF DOGGETT STREET, THENCE ALONG THE RIGHT‐OF‐WAY 2 ARCS (1) WITH A LENGTH 33.50' A
RADIUS OF 32.00' AND A CHORD OF 31.99' WITH A BEARING OF S 71‐23‐53 E TO A REBAR,
(2)WITH A LENGTH OF 159.78' A RADIUS OF 506.51' AND A CHORD OF 159.12' WITH A BEARING
OF N 43‐38‐41 W TO A REBAR AT THE COMMON CORNER WITH TAX PARCEL 12103304 (330
WEST TREMONT LLC), THENCE WITH 330 TREMONT 2 CALLS (1) N 81‐17‐00 W 145.18' TO A
MAG NAIL, (2) S 53‐43‐00 W 26.42' TO A MAG NAIL THE COMMON CORNER WITH TAX PARCEL
12103302 (THE HORNE COMPANY) THENCE WITH HORNE N 36‐10‐50 W 84.76' TO A REBAR
AND THE POINT OF BEGINNING, CONTAINING 12,958 SQ.FT./0.297 ACRES.