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HomeMy WebLinkAbout22007 NBP for PC South Tryon Commercial 22007 20190125 22007-18-060/South Tryon Commercial (20181221) 1 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 22007-18-060/South Tryon Commercial (20181221) 2 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: 22007-18-060/South Tryon Commercial (20181221) 3 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: 22007-18-060/South Tryon Commercial (20181221) 4 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 22007-18-060/South Tryon Commercial (20181221) 5 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 ____.” 22007-18-060/South Tryon Commercial (20181221) 6 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 22007-18-060/South Tryon Commercial (20181221) 7 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: ________________________________. 22007-18-060/South Tryon Commercial (20181221) 8 Date: ___________________ ___________________________________ Official Signature of Notary ___________________________________ Notary’s printed or typed name, Notary Public (Official Seal) My commission expires: _____________________ 22007-18-060/South Tryon Commercial (20181221) 9 ************************************ 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 1 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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. 2 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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, 3 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 4 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 5 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 6 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 7 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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); 8 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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; 9 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 10 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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. 11 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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. 12 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 13 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 14 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 15 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 16 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 17 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 18 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 19 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 20 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 21 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 22 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 23 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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. 24 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 25 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 26 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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. 27 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 28 Project Number 22007-18-060/ South Tryon Commercial (20181221) 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 7,7/( 352-(&7 6,7(/2&$7,210$3 6287+75<21&200(5,&$/ &+$5/277(1257+&$52/,1$ '$7( -2%12 5(9,6,2112 EXHIBIT  505 6,7(  $3352;,0$7( 6&$/(,1)((7 1 86*648$'5$1*/(0$3 48$'5$1*/( 0,187(6(5,(6 7232*5$3+,& &+$5/277(($671257+&$52/,1$ 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.