19070_Fmr Gussmans Cleaners_Full Brownfields Agreement for Public Comment_20210126

Property Owner: Polo Enterprises, LLC
Recorded in Book , Page
Associated plat recorded in Plat Book , Page
NOTICE OF BROWNFIELDS PROPERTY
Site Name: Former Gussman's Cleaners
Brownfields Project Number: 19070-15-025
This documentary component of a Notice of Brownfields Property ("Notice"), as well
as the plat component, have been filed this day of , 202_ 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, the former site of a dry-cleaners, is comprised of one 0.158-
acre parcel located at 223 Craven Street, New Bern, Craven County. Historical dry-cleaning
operations conducted at the Brownfields Property resulted in impacts to soil and groundwater. The
Prospective Developer has committed to redeveloping the Brownfields Property with retail, multi-
family residential, raised -bed gardens, associated parking, and subject to DEQ's prior written
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approval, other commercial uses.
The Brownfields Agreement between Prospective Developer and DEQ is attached
hereto as Exhibit A. It sets forth the use that may be made of the Brownfields Property and
the measures to be taken to protect public health and the environment, and is required by
NCGS § 130A-310.32. The Brownfields Agreement's Exhibit 2 consists of one or more data
tables reflecting the concentrations of and other information regarding the Property's
regulated substances and contaminants.
Attached as Exhibit B to this Notice is a reduction, to 8 1/2" x 11", of the survey
plat component of this Notice. This plat shows areas designated by DEQ, has been
prepared and certified by a professional land surveyor, meets the requirements of NCGS §
47-30, and complies with NCGS § 130A-310.35(a)'s requirement that the Notice identify:
(1) The location and dimensions of the areas of potential environmental concern with
respect to permanently surveyed benchmarks.
(2) The type, location and quantity of regulated substances and contaminants known to
exist on the Brownfields Property.
Attached hereto as Exhibit C is a legal description of the Brownfields Property that would
be sufficient as a description of the property in an instrument of conveyance.
LAND USE RESTRICTIONS
NCGS § 130A-310.35(a) also requires that the Notice identify any restrictions on the
current and future use of the Brownfields Property that are necessary or useful to maintain the
level of protection appropriate for the designated current or future use of the Brownfields Property
and that are designated in the Brownfields Agreement. The restrictions shall remain in force in
perpetuity unless canceled by the Secretary of DEQ (or its successor in function), or his/her
designee, after the hazards have been eliminated, pursuant to NCGS § 130A-310.35(e). All
references to DEQ shall be understood to include any successor in function.
The 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:
a. No use may be made of the Brownfields Property other than for retail, multi-
family residential, raised -bed gardens, associated parking, and subject to DEQ's prior written
approval, other commercial uses. For purposes of this restriction, the following definitions apply:
i. "Retail" is defined as the sale of goods or services, products, or
merchandise directly to the consumer or businesses and includes showrooms, personal or
professional services, and the sales of food and beverage products, although retail or other
commercial uses that store or handle petroleum -based solvents are prohibited;
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ii. "Multi -Family Residential" is defined as multi -unit human dwellings,
such as condominia, or apartments and any property outside the dwelling structures is usable by
all residents and not privately owned as part of a particular unit (e.g., privately -owned courtyards
are prohibited), and may include related amenities, such as pools, clubhouses, courtyards, common
areas, recreation areas and parking garages. Single family homes are prohibited; townhomes,
duplexes, or other units with yards are prohibited unless approved in writing by DEQ in advance;
iii. "Raised -bed gardens" is defined as use of shared land to grow
vegetables, flowers or other crops. Any such garden 1) shall not disturb native soil at the
Brownfields Property, 2) must be located within the "Raised -Bed Garden Approved" area depicted
on the plat component of the Notice referenced below in paragraph 20, and 3) must be contained
within constructed raised beds, unless compliance with this Land Use Restriction is waived in
writing in advance by DEQ.
iv. "Parking" is defined as the temporary accommodation of motor vehicles
in an area designed for same; and
v. "Commercial" is defined as an enterprise carried on for profit or nonprofit
by the owner, lessee or licensee
b. 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
paragraph 8 above;
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 groundwater and contaminated soils excavated during redevelopment.
c. By January 31 st after each one-year anniversary of the effective date of this
Agreement 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
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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).
d. The Brownfields Property may not be used for childcare, adult care centers or
schools without the prior written approval of DEQ.
e. Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
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.b. above.
g. No activity that disturbs soil on the Brownfields Property may occur unless and
until DEQ states in writing, in advance of the proposed activity, that said activity may occur if
carried out along with any measures DEQ deems necessary to ensure the Brownfields Property
will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public
health and the environment, except:
i. in connection with landscape planting to depths not exceeding 24 inches;
ii. mowing and pruning of above -ground vegetation;
iii. for repair of underground infrastructure, provided that DEQ shall be
given written notice at least seven days in advance of a scheduled repair (if only by email) of any
such repair, or in emergency circumstances no later than the next business day, and that any related
assessment and remedial measures required by DEQ shall be taken and;
iv. in connection to work conducted in accordance with a DEQ-approved
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EMP as outlined in subparagraph 15.b. above.
h. No new enclosed building may be constructed on the Brownfields Property and
no existing building, defined as those depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 20 below, may be occupied until DEQ determines in writing that:
i. the building is or would be protective of the building's users, public
health and the environment from risk of vapor intrusion based on site assessment data or a site -
specific risk assessment approved in writing by DEQ;
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 designed, installed, and
implemented in a manner that will fully protect public health 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,
and to DEQ. Any design specification for vapor intrusion mitigation measures shall be approved
in writing by DEQ in advance of installation and/or implementation of said measures. The design
specifications shall include methodology(ies) for demonstrating performance of said measures.
i. 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 Craven 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 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. None of the contaminants known to be present in the environmental media at the
Brownfields Property, as described in paragraph 8 above of this Agreement and as modified by
DEQ in writing if additional contaminants in excess of applicable standards are discovered at the
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Brownfields Property, may be used or stored at the Brownfields Property without the prior written
approval of DEQ, except:
in de minimis quantities for cleaning and other routine housekeeping and
maintenance activities;
ii. in fluids in vehicles; and
iii. as constituents of products and materials customarily used and stored in
retail, multi -family residential, raised -bed gardens, associated parking, and with prior written
approval from DEQ, other commercial uses, provided such products and materials are stored in
original retail packaging and used and disposed of in accordance with applicable laws.
1. Within 60 days after the effective date of this Agreement or prior to land
disturbance activities, Prospective Developer shall abandon monitoring wells, injection wells,
recovery wells, piezometers and other man made points of groundwater access at the Brownfields
Property in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative
Code, unless an alternate schedule is approved by DEQ. Within 30 days after doing so, the
Prospective Developer shall provide DEQ a report, setting forth the procedures and results.
m. 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 1 st
of that year shall submit a notarized Land Use Restrictions Update ("LURU") to DEQ, and to the
chief public health and environmental officials of Craven County, certifying that, as of said
January 1st, the Notice of Brownfields Property containing these land use restrictions remains
recorded at the Craven 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 or board, association or approved entity 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.i. 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; and
iv. A LURU submitted for rental units shall include the rent roll and enough
of each lease entered into during the previous calendar year to demonstrate compliance with lessee
notification requirements in paragraphs 21 and 22 of this agreement provided that if standard form
leases are used in every instance, a copy of such standard form lease may be sent in lieu of copies
of actual leases.
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For purposes of the land use restrictions set forth above, the DEQ point of contact shall be
the DEQ official referenced in subparagraph 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.
[This space is intentionally left blank]
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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 , 202_.
Polo Enterprises, LLC
James Polo
Manager
NORTH CAROLINA
COUNTY
I certify that the following person(s) personally appeared before me this day, each
acknowledging to me that he or she voluntarily signed the foregoing document for the purpose
stated therein and in the capacity indicated:
Date:
Official Signature of Notary
(Official Seal) Notary's printed or typed name, Notary Public
My commission expires:
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WE
************************************
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
Ellen Lorscheider Date
Deputy Director, Division of Waste Management
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EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF: Polo Enterprises, LLC
UNDER THE AUTHORITY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, NCGS § 130A-310.30, et seq.
Brownfields Project # 19070-15-025
I. INTRODUCTION
BROWNFIELDS AGREEMENT re:
Former Gussman's Cleaners
223 Craven Street
New Bern, Craven County
This Brownfields Agreement ("Agreement") is entered into by the North Carolina
Department of Environmental Quality ("DEQ") and Polo Enterprises, LLC (collectively the
"Parties") pursuant to the Brownfields Property Reuse Act of 1997, NCGS § 130A-310.30, et
sue. (the "Act") for the property located at 223, 223A, and 223B Craven Street in New Bern,
North Carolina 28560 (the "Brownfields Property"). A map showing the location of the
Brownfields Property that is the subject of this Agreement is attached hereto as Exhibit 1.
The Prospective Developer is Polo Enterprises, LLC, whose principal office is located at
223 Craven Street, New Bern, NC 28560. The manager of Polo Enterprises, LLC is James Polo.
The Prospective Developer has committed to redeveloping the Brownfields Property with retail,
multi -family residential, raised -bed gardens, associated parking, and subject to DEQ's prior
written approval, other commercial uses.
The Parties agree to undertake all actions required by the terms and conditions of this
Agreement. The purpose of this Agreement is to settle and resolve, subject to reservations and
limitations contained in Section VIII (Certification), Section IX (DEQ's Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
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potential liability of Polo Enterprises, LLC for contaminants at the Brownfields Property.
The Parties agree that Polo Enterprises, LLC's entry into this Agreement, and the actions
undertaken by Polo Enterprises, LLC in accordance with the Agreement, do not constitute an
admission of any liability by Polo Enterprises, LLC for contaminants at the Brownfields
Property. The resolution of this potential liability, in exchange for the benefit Polo Enterprises,
LLC shall provide to DEQ, is in the public interest.
IL 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 Polo Enterprises, LLC.
III. STATEMENT OF FACTS
3. The Brownfields Property is comprised of one 0.158-acre parcel, assigned Parcel ID 8-
001-C-097 by the Craven County Tax Administration Office, and is located at 233 Craven Street,
New Bern, Craven County.
4. The Brownfields Property is bordered to the north by an asphalt -paved parking area
with retail and restaurant properties beyond; to the east by Craven Street and retail businesses
beyond; to the south by retail businesses; and to the west by asphalt -paved parking and retail
businesses beyond.
5. Prospective Developer obtained or commissioned the following reports, referred to
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hereinafter as the "Environmental Reports," regarding the Brownfields Property:
Title
Prepared by
Date of Report
Phase I Environmental Site Assessment
Avolis Engineering
January 6, 2015
Report of Environmental Services
ECS Carolinas, LLP
February 10, 2015
Report of Environmental Services
ECS Carolinas, LLP
July 10, 2015
Groundwater Sampling Letter
Terraquest
July 18, 2015
Limited Comprehensive Site Assessment
Report
Terraquest
September 10, 2015
Phase I Environmental Site Assessment
Avolis Engineering
September 28, 2015
Groundwater Sampling Letter
Terraquest
December 16, 2015
Groundwater Sampling Letter
Terraquest
January 12, 2017
Stained Soil Sampling Letter
Terraquest
February 13, 2017
Stained Soil Excavation Summary Letter
Terraquest
April 26, 2017
Groundwater and Soil Sampling Letter
Terraquest
July 7, 2017
Indoor Air Sampling Report
Terraquest
January 26, 2019
Vapor Intrusion Barrier System Installation
Documentation Report
Terraquest
April 4, 2019
6. For purposes of this Agreement, DEQ relies on the following representations by
Prospective Developer as to the use and ownership of the Brownfields Property:
a. According to historical research documentation, past use of the Brownfields
Property includes office/residential use dating back to at least 1885, retail from at least 1948, and
dry-cleaning operations from 1956 through 2007.
b. The Brownfields Property is currently owned by the Prospective Developer,
Polo Enterprises, LLC, which purchased the Brownfields Property from Riverbanks Properties,
LLC on October 12, 2015 (deed recorded at Craven County Register of Deeds at Book 3391,
Page 376). The Brownfields Property is developed with an approximate 3,620 square foot, three-
story structure currently in use for retail (first floor) and residential (second and third floor)
tenants.
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7. Pertinent environmental information regarding the Brownfields Property and
surrounding area includes identified soil and groundwater impacts associated with the historical
use of Varsol dry-cleaning solvent at the Brownfields Property.
a. The Brownfields Property was assigned Incident Number 93254 by the
Washington Regional Office of the DEQ Underground Storage Tank (UST) Section following
the discovery of soil and groundwater impacted by Varsol. The incident is still open. The Varsol
was historically stored in an aboveground storage tank (AST) at the rear of the structure on the
Brownfields Property. Contaminated soils were observed during the removal of a concrete slab
located beneath a former steam boiler on November 28, 2016. Laboratory analysis of soil
samples collected on November 30, 2016 confirmed the presence of 4-isopropyltolune, 4-
chloroetoluene, naphthalene, 1,2,4-trimethylbenzene, C9-C18 aliphatics, C9-C22 aromatics, and
lead at concentrations exceeding regulatory action levels. Laboratory analysis of groundwater
samples collected on November 30, 2016 confirmed the presence of chloromethane, 1-
methylnaphthalene, C9-C18 aliphatics, and C9-C22 aromatics at concentrations exceeding NC
groundwater quality standards.
b. Approximately 120 tons of soil from this location were excavated on March 21,
2017. Excavated soils were immediately placed in dump trucks and hauled offsite for disposal.
c. A passive vapor intrusion mitigation system ("VIMS") was installed at the site
in November 2017 due to soil and groundwater contaminant concentrations. The VIMS is designed
as a passive venting system for the removal of sub -slab vapors, but may be converted to an active
system if warranted. Following installation of the passive VIMS, a 24-hour indoor air sampling
event was conducted at the site prior to occupancy of the building. The sample results did not pose
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an unacceptable environmental risk based on these results.
8. The most recent environmental sampling at the Brownfields Property reported in the
Environmental Reports occurred on December 20, 2018. The following tables set forth, for
contaminants present at the Brownfields Property above applicable standards or screening levels,
the concentration found at each sample location and the applicable standard or screening level.
Screening levels and standards are shown for reference only and are not set forth as cleanup
levels for the purposes of this Agreement.
a. Groundwater contaminants in micrograms per liter (the equivalent of parts per
billion), the standards for which are contained in Title 15A of the North Carolina Administrative
Code, Subchapter 2L, Rule .0202(2L), (April 1, 2013 version) or the 2L Groundwater Interim
Maximum Allowable Concentrations (IMACS), (April 1, 2013 version):
Groundwater
Contaminant
Sample
Location
Date of
Sampling
Concentration
Exceeding Standard(µg/L)
Standard
(µg/L)
Bis(2-ethylhexyl)phthalate
MW1
7/6/2015
24.9
3
C9-C18 Aliphatics
MW1
11/30/2016
958
700
C9-C22 Aromatics
MW1
11/30/2016
558
200
MW2
11/30/2016
433
MW3
11/23/2015
260
Chlorobenzene
TW-3
5/20/2015
131
50
Chloromethane
MW 1
11/30/2016
5.3
3
1-Methylnaphthalene
TW-1
1 /22/2015
15.2
1
MW1
11/30/2016
7.14 J
MW2
11/30/2016
6.6 J
MW3
11/23/2015
2.16 J
J — Target analyte was positively identified below the quantitation limit and above the detection limit.
b. Soil contaminants in milligrams per kilogram (the equivalent of parts per
million), the screening levels for which are derived from the Preliminary Residential Health-
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Based Remediation Goals of the Inactive Hazardous Sites Branch of DEQ's Superfund Section
(May 2019):
Concentration
Soil
Sample
Depth
Date of
Exceeding
Residential
Contaminant
Location
(ft)
Sampling
Screening
Screening
Level
Level (mg/kg)
(mg/kg)
1-Methylnaphthalene
SW-3
4.5
3/21/2017
24.9
18
c. Groundwater contaminants with the potential for vapor intrusion in micrograms
per liter (the equivalent of parts per billion), the screening levels for which are contained in the
DWM Vapor Intrusion Guidance, Residential Vapor Intrusion Screening Levels (VISL), May
2019 version:
Groundwater
Concentration
Residential VI
Contaminant with
Sample
Date of
Exceeding
Screening
Potential for Vapor
Location
Sampling
Screening
Level
Intrusion
Level (µg/L)
(µg/L)
Bromomethane
MW 1
11 /30/2016
8
3.5
Chlorobenzene
TW-3
5/20/2015
131
82
1. Screening levels displayed for non -carcinogens are for hazard quotient equal to 0.2. Screening levels
displayed for carcinogens are for 1.0E-5 lifetime incremental cancer risk target.
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 October 5, 2015, and the
following:
a. On October 12, 2015, Prospective Developer purchased the Brownfields
Property;
on
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b. Throughout 2017, Prospective Developer renovated the Brownfields Property
including construction of an addition at the rear of the Brownfields Property in accordance with
its DEQ-approved Environmental Management Plan ("EMP"), which EMP is a requirement of this
Brownfields Agreement as referenced in subparagraph 15.b. below.
c. In November 2017, the Prospective Developer installed a VIMS, as described
above in subparagraph 7.c., as part of the addition to the Brownfields Property.
10. Prospective Developer has provided DEQ with information, or sworn certifications
regarding that information on which DEQ relies for purposes of this Agreement, sufficient to
demonstrate that:
a. Prospective Developer and any parent, subsidiary, or other affiliate has
substantially complied with federal and state laws, regulations and rules for protection of the
environment, and with the other agreements and requirements cited at NCGS § 130A-
310.32(a)(1);
b. As a result of the implementation of this Agreement, the Brownfields Property
will be suitable for the uses specified in the Agreement while fully protecting public health and
the environment;
c. Prospective Developer's reuse of the Brownfields Property will produce a
public benefit commensurate with the liability protection provided Prospective Developer
hereunder;
d. Prospective Developer has or can obtain the financial, managerial and
technical means to fully implement this Agreement and assure the safe use of the Brownfields
Property; and
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e. Prospective Developer has complied with all applicable procedural
requirements.
11. Prospective Developer has paid to DEQ the $2,000 fee to seek a brownfields
agreement required by NCGS § 130A-310.39(a)(1), and shall make a payment to DEQ of $6,000
at the time Prospective Developer and DEQ enter into this Agreement, defined for this purpose
as occurring no later than the last day of the public comment period related to this Agreement.
The Parties agree that such fees will suffice as the $2,000 fee to seek a brownfields agreement
required by NCGS § 130A-310.39(a)(1), and, within the meaning of NCGS § 130A-
310.39(a)(2), the full cost to DEQ and the North Carolina Department of Justice of all activities
related to this Agreement, unless a change is sought to a Brownfields document after it is in
effect, in which case there shall be an additional fee of at least $1,000.
IV. BENEFIT TO COMMUNITY
12. The redevelopment of the Brownfields Property proposed herein would provide the
following public benefits:
a. a return to productive use of the Brownfields Property and elimination of the
drawbacks of unoccupied property;
b. a spur to additional community investment and redevelopment, through
improved neighborhood appearance in an historic district, and otherwise;
c. an increase in tax revenue for affected jurisdictions;
d. the creation of 209 construction jobs during redevelopment and one full-time
job after redevelopment was complete;
e. additional retail, residential and associated parking space for the area; and
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f. "smart growth" through use of land in an already developed area, which avoids
development of land beyond the urban fringe ("greenfields").
V. WORK TO BE PERFORMED
13. In redeveloping the Brownfields Property, Prospective Developer shall make
reasonable efforts to evaluate applying sustainability principles at the Brownfields Property,
using the nine (9) areas incorporated into the U.S. Green Building Council Leadership in Energy
and Environmental Design certification program (Sustainable Sites, Water Efficiency, Energy &
Atmosphere, Materials & Resources, Indoor Environmental Quality, Locations & Linkages,
Awareness & Education, Innovation in Design and Regional Priority), or a similar program.
14. Based on the information in the Environmental Reports provided, and subject to
imposition of and compliance with the land use restrictions set forth below, and subject to
Section IX of this Agreement (DEQ's Covenant Not to Sue and Reservation of Rights), DEQ is
not requiring Prospective Developer to perform any active remediation at the Brownfields
Property other than any remediation that may be required pursuant to a DEQ-approved
Environmental Management Plan (EMP)
15. By way of the Notice of Brownfields Property referenced below in paragraph 20,
Prospective Developer shall impose the following land use restrictions under the Act, running
with the land, to make the Brownfields Property suitable for the uses specified in this Agreement
while fully protecting public health and the environment instead of remediation to unrestricted
use standards. All references to DEQ shall be understood to include any successor in function.
a. No use may be made of the Brownfields Property other than for retail, multi-
family residential, raised -bed gardens, associated parking, and subject to DEQ's prior written
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approval, other commercial uses. For purposes of this restriction, the following definitions
apply:
i. "Retail" is defined as the sale of goods or services, products, or
merchandise directly to the consumer or businesses and includes showrooms, personal or
professional services, and the sales of food and beverage products, although retail or other
commercial uses that store or handle petroleum -based solvents are prohibited;
ii. "Multi -Family Residential" is defined as multi -unit human dwellings,
such as condominia, or apartments and any property outside the dwelling structures is usable by
all residents and not privately owned as part of a particular unit (e.g., privately -owned courtyards
are prohibited), and may include related amenities, such as pools, clubhouses, courtyards,
common areas, recreation areas and parking garages. Single family homes are prohibited;
townhomes, duplexes, or other units with yards are prohibited unless approved in writing by
DEQ in advance;
iii. "Raised -bed gardens" is defined as use of shared land to grow
vegetables, flowers or other crops. Any such garden 1) shall not disturb native soil at the
Brownfields Property, 2) must be located within the "Raised -Bed Garden Approved" area
depicted on the plat component of the Notice referenced below in paragraph 20, and 3) must be
contained within constructed raised beds, unless compliance with this Land Use Restriction is
waived in writing in advance by DEQ.
iv. "Parking" is defined as the temporary accommodation of motor
vehicles in an area designed for same; and
v. "Commercial" is defined as an enterprise carried on for profit or
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nonprofit by the owner, lessee or licensee
b. 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;
paragraph 8 above;
ii. issues related to potential sources of contamination referenced in
In. 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 groundwater and contaminated soils excavated during redevelopment.
c. By January 3 1 " after each one-year anniversary of the effective date of this
Agreement 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
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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).
d. The Brownfields Property may not be used for childcare, adult care centers or
schools without the prior written approval of DEQ.
e. Groundwater at the Brownfields Property may not be used for any purpose
without the prior written approval of DEQ.
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.b. above.
g. No activity that disturbs soil on the Brownfields Property may occur unless and
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until DEQ states in writing, in advance of the proposed activity, that said activity may occur if
carried out along with any measures DEQ deems necessary to ensure the Brownfields Property
will be suitable for the uses specified in subparagraph 15.a. above while fully protecting public
health and the environment, except:
i. in connection with landscape planting to depths not exceeding 24 inches;
ii. mowing and pruning of above -ground vegetation;
iii. for repair of underground infrastructure, provided that DEQ shall be
given written notice at least seven days in advance of a scheduled repair (if only by email) of any
such repair, or in emergency circumstances no later than the next business day, and that any related
assessment and remedial measures required by DEQ shall be taken and;
iv. in connection to work conducted in accordance with a DEQ-approved
EMP as outlined in subparagraph 15.b. above.
h. No new enclosed building may be constructed on the Brownfields Property and
no existing building, defined as those depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 20 below, may be occupied until DEQ determines in writing that:
i. the building is or would be protective of the building's users, public
health and the environment from risk of vapor intrusion based on site assessment data or a site -
specific risk assessment approved in writing by DEQ;
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
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iii. vapor intrusion mitigation measures are designed, installed, and
implemented in a manner that will fully protect public health 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,
and to DEQ. Any design specification for vapor intrusion mitigation measures shall be approved
in writing by DEQ in advance of installation and/or implementation of said measures. The design
specifications shall include methodology(ies) for demonstrating performance of said measures.
i. 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 Craven 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 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
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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. None of the contaminants known to be present in the environmental media at
the Brownfields Property, as described in paragraph 8 above of this Agreement and as modified
by DEQ in writing if additional contaminants in excess of applicable standards are discovered at
the Brownfields Property, may be used or stored at the Brownfields Property without the prior
written approval of DEQ, except:
i. in de minimis quantities for cleaning and other routine housekeeping and
maintenance activities;
ii. in fluids in vehicles; and
iii. as constituents of products and materials customarily used and stored in
retail, multi -family residential, raised -bed gardens, associated parking, and with prior written
approval from DEQ, other commercial uses, provided such products and materials are stored in
original retail packaging and used and disposed of in accordance with applicable laws.
1. Within 60 days after the effective date of this Agreement or prior to land
disturbance activities, Prospective Developer shall abandon monitoring wells, injection wells,
recovery wells, piezometers and other man-made points of groundwater access at the Brownfields
Property in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative
Code, unless an alternate schedule is approved by DEQ. Within 30 days after doing so, the
Prospective Developer shall provide DEQ a report, setting forth the procedures and results.
in. During January of each year after the year in which the Notice referenced below
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in paragraph 20 is recorded, the owner of any part of the Brownfields Property as of January 1 st
of that year shall submit a notarized Land Use Restrictions Update ("LURU") to DEQ, and to the
chief public health and environmental officials of Craven County, certifying that, as of said
January 1st, the Notice of Brownfields Property containing these land use restrictions remains
recorded at the Craven 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 or board, association or approved entity 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.i. 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; and
iv. A LURU submitted for rental units shall include the rent roll and enough
of each lease entered into during the previous calendar year to demonstrate compliance with lessee
notification requirements in paragraphs 21 and 22 of this agreement provided that if standard form
leases are used in every instance, a copy of such standard form lease may be sent in lieu of copies
of actual leases.
16. The desired result of the above -referenced land use restrictions is to make the
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Brownfields Property suitable for the uses specified in the Agreement while fully protecting public
health and the environment.
17. The guidelines, including parameters, principles and policies within which the
desired results are to be accomplished are, as to field procedures and laboratory testing, the
Guidelines of the Inactive Hazardous Sites Branch of DEQ's Superfund Section and the Division
of Waste Management Vapor Intrusion Guidance, as embodied in their most current version.
18. The consequence of achieving the desired results will be that the Brownfields
Property will be suitable for the uses specified in the Agreement while fully protecting public
health and the environment. The consequence of not achieving the desired results will be that
modifications to land use restrictions and/or remediation in some form may be necessary to fully
protect public health and/or the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
19. In addition to providing access to the Brownfields Property pursuant to subparagraph
15.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
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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 Craven
County, North Carolina, Register of Deeds' Office. Within three (3) days thereafter, Prospective
Developer shall furnish DEQ a copy of the documentary component of the Notice containing a
certification by the register of deeds as to the Book and Page numbers where both the
documentary and plat components of the Notice are recorded, and a copy of the plat with
notations indicating its recordation.
21. This Agreement shall be attached as Exhibit A to the Notice of Brownfields
Property. Subsequent to recordation of said Notice, any deed or other instrument conveying an
interest in the Brownfields Property shall contain the following notice: "This property is subject
to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property
recorded in the Craven County land records, Book , Page ." A copy of any such
instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though
financial figures and other confidential information related to the conveyance may be redacted to
the extent said redactions comply with the confidentiality and trade secret provisions of the
North Carolina Public Records Law. Prospective Developer may use the following mechanisms
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to comply with the obligations of this paragraph: (i) If every lease and rider is identical in form,
Prospective Developer may provide DEQ with copies of a form lease or rider evidencing
compliance with this paragraph, in lieu of sending copies of actual, executed leases, to the
persons listed in Section XV (Notices and Submissions); or (ii) Prospective Developer may
provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section
XV.
22. The Prospective Developer shall ensure that a copy of this Agreement is provided to
any current lessee or sublessee on the Brownfields Property within seven days of the effective
date of this Agreement.
VIL 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.
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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 October 5, 2015, by which it applied for this
Agreement. That use is retail, multi -family residential, raised -bed gardens, associated parking,
and subject to DEQ's prior written approval, other commercial uses. Prospective Developer also
certifies that to the best of its knowledge and belief it has fully and accurately disclosed to DEQ
all information known to Prospective Developer and all information in the possession or control
of its officers, directors, employees, contractors and agents which relates in any way to any past
use of regulated substances or known contaminants at the Brownfields Property and to its
qualification for this Agreement, including the requirement that it not have caused or contributed
to the contamination at the Brownfields Property.
IX. DEQ'S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
25. Unless any of the following apply, Prospective Developer shall not be liable to DEQ,
and DEQ covenants not to sue Prospective Developer, for remediation of the Brownfields
Property except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the Brownfields Property by or under the control
or direction of the Prospective Developer increase the risk of harm to public health or the
environment, in which case Prospective Developer shall be liable for remediation of the areas of
the Brownfields Property, remediation of which is required by this Agreement, to the extent
necessary to eliminate such risk of harm to public health or the environment.
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c. A land use restriction set out in the Notice of Brownfields Property required
under NCGS § 130A-310.35 is violated while the Prospective Developer owns the Brownfields
Property, in which case the Prospective Developer shall be responsible for remediation of the
Brownfields Property to unrestricted use standards.
d. The Prospective Developer knowingly or recklessly provided false information
that formed a basis for this Agreement or knowingly or recklessly offers false information to
demonstrate compliance with this Agreement or fails to disclose relevant information about
contamination at the Brownfields Property.
e. New information indicates the existence of previously unreported
contaminants or an area of previously unreported contamination on or associated with the
Brownfields Property that has not been remediated to unrestricted use standards, unless this
Agreement is amended to include any previously unreported contaminants and any additional
areas of contamination. If this Agreement sets maximum concentrations for contaminants, and
new information indicates the existence of previously unreported areas of these contaminants,
further remediation shall be required only if the areas of previously unreported contaminants
raise the risk of the contamination to public health or the environment to a level less protective of
public health and the environment than that required by this Agreement.
f. The level of risk to public health or the environment from contaminants is
unacceptable at or in the vicinity of the Brownfields Property due to changes in exposure
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
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health and the environment as planned in this Agreement.
g. DEQ obtains new information about a contaminant associated with the
Brownfields Property or exposures at or around the Brownfields Property that raises the risk to
public health or the environment associated with the Brownfields Property beyond an acceptable
range and in a manner or to a degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under NCGS § 130A-310.35.
26. Except as may be provided herein, DEQ reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
27. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, NCGS § I I3A-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
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action implementing the Act, including negotiating, entering, monitoring or enforcing this
Agreement or the above -referenced Notice of Brownfields Property.
XI. PARTIES BOUND
30. This Agreement shall apply to and be binding upon DEQ, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party's signatory to this
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
XIL 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)(l)-(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
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and operating records, contracts, site studies and investigations, remediation reports, and
documents generated by and/or in the control of the Prospective Developer, its affiliates or
subsidiaries relating to storage, generation, use, disposal and management of regulated
substances at the Brownfields Property, including without limitation all 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.
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XV. NOTICES AND SUBMISSIONS
35. Unless otherwise required by DEQ or a Party notifies the other Party in writing of a
change in contact information, all notices and submissions pursuant to this Agreement shall be
sent by prepaid first-class U.S. mail, as follows:
a. for DEQ:
Brownfields Property Management Unit (or successor in function)
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
James Polo (or successor in function)
Polo Enterprises, LLC
223 Craven Street
PO Box 922 (28563)
New Bern, NC 28560
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 affect the recordation of the full Notice of Brownfields Property within
the statutory deadline set forth in NCGS § 130A-310.35(b). If the Agreement is not signed by
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Prospective Developer within 45 days after such receipt, DEQ has the right to revoke its
approval and certification of this Agreement, and invalidate its signature on this Agreement.
XVII. TERMINATION OF CERTAIN PROVISIONS
37. If any Party believes that any or all of the obligations under Section VI
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the
requirements of the Agreement, that Party may request in writing that the other Party agree to
terminate the provision(s) establishing such obligations; provided, however, that the provision(s)
in question shall continue in force unless and until the Party requesting such termination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CONTRIBUTION PROTECTION
38. With regard to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
claims to the extent provided by NCGS § 130A-310.37(a)(5)-(6). The subject matter of this
Agreement is all remediation taken or to be taken and response costs incurred or to be incurred
by DEQ or any other person in relation to the Brownfields Property.
39. The Prospective Developer agrees that, with respect to any suit or claim for
contribution brought by it in relation to the subject matter of this Agreement, it will notify DEQ
in writing no later than 60 days prior to the initiation of such suit or claim.
40. The Prospective Developer also agrees that, with respect to any suit or claim for
contribution brought against it in relation to the subject matter of this Agreement, it will notify
DEQ in writing within 10 days of receiving said suit or claim.
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XIX. PUBLIC COMMENT
41. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after the last of the following public notice tasks occurs: publication of the
approved summary of the Notice of Intent to Redevelop a Brownfields Property required by
NCGS § 130A-310.34 in a newspaper of general circulation serving the area in which the
Brownfields Property is located; conspicuous posting of a copy of said summary at the
Brownfields Property; and mailing or delivery of a copy of the summary to each owner of
property contiguous to the Brownfields Property. After expiration of that period, or following a
public meeting if DEQ holds one pursuant to NCGS § 130A-310.34(c), DEQ may modify or
withdraw its consent to this Agreement if comments received disclose facts or considerations
which indicate that this Agreement is inappropriate, improper or inadequate.
IT IS SO AGREED:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
By:
Ellen Lorscheider Date
Deputy Director, Division of Waste Management
IT IS SO AGREED:
POLO ENTERPRISES, LLC
By:
James Polo
Manager
Date
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19070-15-025/Fmr. Gussman's Cleaners/ 15Dec2020

w
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NOTES:
1. COMBINED FACTOR IS 0 99988120,
2 ALL DISTANCES ARE HORIZONTAL GROUND MEASUREMENTS IN FEET & FLOOD STATEMENT
DECIMALS THEREOF. UNLESS OTHERWISE NOTED.
3 ALL URUTE5 AND IMPROVEMENTS ARE NOT SHOWN ON THIS SURVEY THIS PROPERTY IS LOCATED IN SON£ ' X
4. THE AREAS AND TYPES OR CONTAMINATION DEPICTED HEREON ARE AND IS NOT WITHIN A SPECIAL FLOOD HAZARD
APPROXIMATIONS DERNED FROM THE BEST AVAILABLE INFORMATION AT AREA, AS DETERMINED BY NFIP RATE MAP
THE TIME OF FlLING. A LISTING OF THE TECHNICAL REPORTS USED DATED 6/19/2020 :COMMUNITY PANEL
TO PREPARE THIS PUT ARE AVAILABLE IN THE BROWNFlELDS
AGREEMENT FOR THIS PROPERTY NUMBER 370074-5489-1 .
5. THE MONITORING WELLS, TEMPORARY GROUNDWATER MONITORING
WELLS, AND SOIL SAMPLE LOCATION D£PICT£D HEREON ARE
APPROXIMATIONS DERN£D FROM THE BEST AVAILABLE INFORMATION.
1, RE✓IEW OFFCER OF
CRAVEN COUNTY, CERTIFY THAT THE MAP OR PLAT TO
WHICH THIS CERTIFICATION IS AFFIXED MEETS ALL STATUTORY
REQUIREMENTS FOR RECORDING.
REVIEW OFFICER
DATE
PLED FOR REGISTRATION
2020 _ M
PLAT CABINET , SLIDE
REGISTER OF DEEDS
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BOUNDARIES NOT SURVEYED ARE CLEARLY INDICATED AS DRAWN
C/G = CURB & GUTTER
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FROM INFORMATION REFERENCED HEREON; THAT THE RATIO
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= BROWNFIELOS PROPERTY LINE
A = LINE NOT TO SCALE
WITNESS MY ORIGINAL SIGNATURE, REGISTRATION NUMBER
- CONCRETE
I, DAME£ R. WATSON, PROFESSIONAL LAND SURVEYOR NO. 4712, CERTIFY AND SEAL THIS 18TH DAY OF NOV£MBER A.D., 2020.
OR THIS SUP —ORE E OF AN EXISTING PARCEL OR PARCELS AT LAND
OR ONE OR MORE EXISTING EASEMENTS AND DOES NOT CREATE A NEW
BROWNFIELDS
STREET OR CHANGE AN EXISTING STREET.
- BRICK PAVERS
SURVEY FOR -
L-4712
L-4712
POLO ENTERPRISES, LLC
MATRIX EAST, PLLC
EXHIBIT 8 TO THE N077CE OF
BROWNFIELDS PROPERTY - SURVEY PLAT
PROFESSIONAL LAND SURVEYORS
SHEET I OF
SOURCE OF T/TLE
NO.8 TOWNSHIP
NOVEMBER 18, 2020
e51 906 N. QUEEN ST., SURE A KINSTON, NC 28!
PROPERTY INFORMATION
PROSPECTIVE DEVELOPER: POLO ENTERPRISES, LLC
OB 3 , PG 376
CRAVEN COUNTY, N.C.
10 20
4I
SCALE: 1" = 20'
60
TEL: [phone] FAX: [phone]
EAWL• eurvayoAmatrixaaetnet FIRM LTC. jP-0:
OWNER: POLO ENTERPRISES, LLC
PROPERTY ADDRESS: 223 CRAVEN ST.
ACREAGE DATA30
(BY COMPUTER)
I
PROJECT NO.: 20200241
DATE: 11/ 18/2020
NEW BERN, N.C.
DRAWN BY:JRW
SCALE: 1" = 20'
TAX PARCEL f(: 8-007—C-0-1
s,e]sa2 sa. FTt
0. 111 A-
( IN FEET)
SURVEYED BY:NAP/CCK
CHECKED BY:JRW
BROWN FIELDS PROJECT NO.: 19070-15-025
1
inch = 20 Pt.
WNFIELDS PROJECT NAME: FORMER GUSSMAN'S CLEANERS
DRAWING NAME: 20200241.DWG

HOGS 13OA-310.35UU REQUIRES RECORDATION OF A NOTICE OF BROWNFELDS
PROPERTY ('NOTICE') THAT IDENTIFIES ANY RESTRICTIONS ON THE CURRENT AND FUTURE USE OF A
BROWNFIELDS PROPERTY THAT ARE NECESS4RY OR USEFUL TO MAINTAIN THE LEVEL OF PROTECTION
APPROPRIATE FOR THE DESIGNATED CURRENT OR FUTURE USE OF THE PROPERTY AND THAT ARE
DESIGNATED IN A BROWNFIELOS AGREEMENT PERTAINING TO THE PROPERTY THIS SURVEY PUT
CONSTITUTES ONE OF THREE EXHIBITS TO THE NOTICE PERTAINING TO THE BROWNFELDS PROPERTY
DEPICTED ON THIS PUT AND RECORDED AT THE CRAVEN COUNTY REGISTER OF DEEDS' OFFICE THE
£XHIB I TO THE NOTICE ARE THE BROWNFIELDS AGREEMENT FOR THE SUBJECT PROPERTY, WHICH
IS ATTACHED AS EXHIBIT A TO THE NOTICE,A REDUCED VERSION OF THIS SURVEY PUT, WHICH /S
ATTACHED AS EXHIBIT B TO THE NOTICE AND A LEGAL DESCRIPTION FOR THE SUB/ECT PROPERTY,
WHICH IS ATTACHED AS EXHIBIT C TO THE NOTICE THE LAND USE RESTRICTIONS BELOW HAVE BEEN
EXCERPTED VERBATIM FROM PARAGRAPH 15 OF THE BROWNFELDS AGREEMENT, AND ALL PARAGRAPH
LETTERS/NUMBERS ARE THE SAME AS THOSE USED IN THE BROWNFELDS AGREEMENT THE
FOLLOWING LAND USE RESTRICTIONS ARE HEREBY IMPOSED ON THE BROWNFELDS PROPERTY AND
SHALL REMAIN IN FORCE IN PERPETUITY UNLESS CANCELED BY THE SECRETARY OF THE NORTH
CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY (OR ITS SUCCESSOR IN FUNCTION), OR HIS/HER
DESIGNEE, AFTER THE HAZARDS HAVE BEEN ELIMINATED, PURSUANT TO NCGS § 130A-31035(£):
NO USE MAY BE MADE OF THE BROWNFIELDS PROPERTY OTHER THAN FOR RETAIL,
MULTI -FAMILY RESIDENTAL, RAISED -BED GARDENS, ASSOCIATED PARKING, AND SUBJECT TO OEQ'S
PRIOR WRITTEN APPROVAL, OTHER COMMERCIAL USES. FOR PURPOSES OF THIS RESTRICTION, THE
FOLLOWING DEFINITIONS APPLY
'RETAIL' IS DEFINED AS THE SALE OF —1 OR SERVICE$ PRODUCTS, OR MERCHANDISE
DIR£CRY TO THE CONSUMER OR BUSINESSES AND INCLUDES SHOWROOMS, PERSONAL OR
PROFESSIONAL SERVICES, AND THE SALES OF FOOD AND BE✓ERAGE PRODUCTS, ALTHOUGH RETAIL OR
OTHER COMMERCIAL USES THAT STORE OR HANDLE PETROLEUM -BASED SOLVENTS ARE PROHIBITED;
N. 'MULTI -FAMILY RESIDENTIAL' IS DEFINED AS MULTI -UNIT HUMAN DWELLINGS, SUCH AS
CONDOMINIA, OR APARTMENTS AND ANY PROPERTY OUTSIDE THE DWELLING STRUCTURES IS USABLE
BY ALL RESIDENTS AND NOT PRNATELY OWNED AS PART OF A PARTICULAR UNIT (EG.,
PRIVATELY -OWNED COURTYARDS ARE PROHIBITED), AND MAY INCLUDE RELATED AMENITIES, SUCH AS
POOLS CLUBHOUSES, COURtt ROS COMMON AREAS, RECREATION AREAS AND PARKING GARAGES.
SINGLE FAMILY HOMES ARE PROHIBITED; TOWNHOMES, DUPLEXES. OR OTHER UNITS WITH YARDS ARE
PROHIBITED UNLESS APPROVED IN WRITING BY CEO IN ADVANCE
TiLRAISEO-RED GARDENS" IS DEFINED AS USE OF SHARED /AND TO GROW
VEGETABLES, FLOWERS OR OTHER CROPS. ANY SUCH GARDEN 1) SHALL NOT DISTURB NATIVE SOIL
AT THE BROWNFIELDS PROPERTY, 2) MUST BE LOCATED WITHIN THE 'RAISED -BED GARDEN
APPR —' AREA DEPICTED ON THE PUT COMPONENT OF THE NOTICE REFERENCED BELOW IN
PARAGRAPH 20, AND 3) MUST BE CONTAINED WITHIN CONSTRUCTED RAISED BEDS UNLESS
COMPLIANCE WITH THIS LAND USE RESTRICTION IS WAIVED IN WRITING IN ADVANCE BY DED.
IV. 'PARKING' IS DEFINED AS THE TEMPORARY ACCOMMODATION OF MOTOR VEHICLES IN AN
AREA DESIGNED FOR SAME AND
v. 'COMMERCIAL' IS DEFINES AS AN ENTERPRISE CARRIED ON FOR PROFIT OR NONPROFIT BY
THE OWNER, LESSEE OR LICENSEE
K PHYSICAL REDEVELOPMENT OF THE BROWNFIELDS PROPERTY MAY NOT OCCUR OTHER
THAN IN ACCORD, AS DETERMINED BY DEC, 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
PRO FIELDS PROPERTY THE TIMING OF REDEVELOPMENT PHASES, AND ADDRESSES HEALTH, SAFETY AND ENVIRONMENTAL ISSUES THAT MAY ARISE FROM USE OF THE BROWNFELDS PROPERTY DURING
CONSTRUCTION OR REDEVELOPMENT IN ANY OTHER FORM, INCLUDING WTHOUT LIMITATION:
L SOIL AND WATER MANAGEMENT ISSUES, INCLUDING WITHOUT LIMITATION THOSE RESULTING
FROM CONTAMINATION IDENTIFIED IN TILE ENVIRONMENTAL REPORTS
II. ISSUES RELATED TO POTENTIAL SOURCES OF CONTAMINATION REFERENCED IN PARAGRAPH 8
ABOVE
iIL CONTINGENCY PLANS FOR ADDRESSING, INCLUDING WITHOUT LIMITATION THE TESTING OF
SOIL AND GROUNDWATER, NEWLY DISCOVERED POTENTAL SOURCES OF ENVIRONMENTAL
CONTAMINATION (EG.. UST) TANKS, DRUMS, SEPTIC DRAIN FIELDS, OIL -WATER SEPARATORS, SOIL
CONTAMINATION); AND
Tv. PLANS FOR THE PROPER CHARACTERIZATION OF AND. AS NECESSARY, DISPOSAL OF
CONTAMINATED GROUNDWATER AND CONTAMINATED SOILS EXCAVATED DURING REDEVELOPMENT.
. BY ✓ANUARY 31ST AFTER EACH ONE-YEAR ANNIVERSARY OF THE EFFECTIVE DATE OF THIS
AGREEMENT FOR AS LONG AS PHYSICAL REDEVELOPMENT OF THE BROWNFELDS PROPERTY
CONTINUES (EXCEPT THAT THE FINAL DEADLINE SHALL FALL 90 DAY5 AFTER THE CONCLUSION OF
PHYSICAL REDEVELOPMENT), THE THEN OWNER OF THE BROWNFELDS PROPERTY SHALL PROVIDE DEC
A REPORT SUBJECT TO WRITTEN DEQ APPROVAL ON ENVIRONMENT -RELATED ACTIVITES SINCE THE
LAST REPORT, WITH A SUMMARY AND DRAW/NGS, THAT DESCRIBES:
ACTIONS TAKEN ON THE BROWNFELDS PROPERTY IN ACCORDANCE WTH SECTION v: WORK
TO BE PERFORMED ABOVE
u. SOIL GRADING AND CUT AND FILL ACTIONS
III METHODOLOGY(1ES) EMPLOYED FOR FIELD SCREENING, SAMPLING AND LABORATORY
ANALYSIS OF ENVIRONMENT L MEDIA;
STOCKPILING, CONY INERIZING, DECONTAMINATING, TREATING, HANDLING, LABORATORY
ANALYSIS AND ULTIMATE DISPOSITION OF ANY SOIL, GROUNDWATER OR OTHER MATERALS SUSPECTED
OR CONFIRMED TO BE CONTAMINATED WTH REGULATED SUBSTANCES AND
REMOVAL OF ANY CONTAMINATED SOIL, WATER OR OTHER CONTAMINATED MAT£RULS (FOR
EXAMPLE, CONCRETE DEMOLITION DEBRIS) FROM THE BROWNFIELDS PROPERTY (COPIES OF ALL
LEGALLY REQUIRED MANIFESTS SHALL BE INCLUDED).
IT THE BROWNFELDS PROPERTY MAY NOT BE USED FOR CHILDCARE ADULT CARE CENTERS
OR SCHOOLS WITHOUT THE PRIOR WRITTEN APPROVAL OF DEG
e. GROUNDWATER AT THE BROWNFELDS PROPERTY MAY NOT BE USED FOR ANY PURPOSE
WITHOUT THE PRIOR WRITTEN APPROVAL OF DEO.
I. SOIL MAY NOT BE REMOVED FROM, OR BROUGHT ONTO, THE BROWNFIELDS PROPERTY
WITHOUT PRIOR SAMPLING AND ANALYSIS TO DEO'S SATISFACTION AND THE WRITTEN APPROVAL OF
DEG UNLESS CONDUCTED IN ACCORDANCE WITH AN APPROVED EMP AS OUTLINED IN SUBPARAGRAPH
ISB ABowa
g. ACTIVITY THAT DISTURBS SOIL ON THE BROWNFIELDS PROPERTY MAY OCCUR UNLESS
AND UNTIL DED STATES IN WRITING. IN ADVANCE OF THE PROPOSED ACTIVITY, THAT SAID ACTIVITY
MAY OCCUR IF CARRIED OUT ALONG WITH ANY MEASURES DEC DEEMS NECESSARY TO ENSURE THE
BROWNFELDS PROPERTY WILL BE SUITABLE FOR THE USES SPECIFIED IN SUBPARAGRAPH IS.A.
ABOVE WHILE FULLY PROTECTING PUBLIC HEALTH AND THE ENVIRONMENT, EXCEPT
Z IN CONNECTION WITH LANDSCAPE PLANTING TO DEPTHS NOT EXCEEDING 24 INCHES
REGISTER OF DEEDS
CRAVEN COUNTY
IT MOWING AND PRUNING OF ABOVE GROUND VEGETATION;
iii. FOR REPAIR OF UNDERGROUND INFRASTRUCTURE. PROVIDED THAT DEC 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 'HE NEXT BUSINESS DAY,
AND THAT ANY RELATED ASSESSMENT AND REMEDIAL MEASURES REQUIRED BY DEC SHALL BE TAKEN
AND:
IN CONNECTION TO WORK CONDUCTED IN ACCORDANCE WITH A DEO-APPROVED EMP AS
OUTLINED IN SUBPARAGRAPH 15.8. ABOVE
L. NO NEW ENCLOSED BUILDING MAY BE CONSTRUCTED ON THE BROWNFIELDS PROPERTY AND
NO EXISTING BUILDING, DEFINED AS NOSE DEPICTED ON THE PLAT COMPONENT OF THE NOTICE OF
BROWNFIELDS PROPERTY REFERENCED IN PARAGRAPH 20 BELOW, MAY HE OCCUPIED UNTIL DEQ
DETERMINES IN WRITING THAT:
THE BUILDING IS OR WOULD BE PROTECTIVE OF THE BUILDING'S USERS, PUBLIC HEALTH
AND THE ENVIRONMENT FROM RISK OF VAPOR INTRUSION BASED ON SITE ASSESSMENT DATA OR A
SITE -SPECIFIC RISK ASSESSMENT APPROVED IN WRITING BY DEQ,
u, THE BUILDING IS OR WOULD BE SUFFICIENTLY DISTANT FROM THE SROWNFELDS
PROPERTY'S GROUNDWATER AND/OR SOIL CONTAMINATION BASED ON ASSESSMENT DATA APPROVED IN
WRITING BY D£O THAT THE BUILDING'S USERS. PUBLIC HEALTH AND THE ENVIRONMENT WILL BE
PROTECTED FROM RISK FROM VAPOR INTRUSION RELATED TO SAID CONTAMINATION; OR
///.VAPOR INTRUSION MITIGATION MEASURES ARE DESIGNED, INSTALLED, AND IMPLEMENTED IN A
MANNER THAT WILL FULLY PROTECT PUBLIC HEALTH TO THE SATISFACTION OF A PROFESSIONAL
ENGINEER LICENSED IN NORT 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 AND TO DEC. ANY DESIGN SPECIFCATIol FOR VAPOR INTRUSION
MITIGATION MEASURES SHALL BE APPROVED IN WRITING BY D£0 IN ADVANCE OF INSTALLATION
AND/OR IMPLEMENTATION OF SAID MEASURES. THE DESIGN SPECIFICATIONS SHALL INCLUDE
METHODOLOGY(/£) FOR DEMONSTRATING PERFORMANCE OF SAID MEASURES
NEITHER DED, NOR ANY PARTY CONDUCTING ENVIRONMENTAL ASSESSMENT OR REMEDUTION
AT THE BROWNFIELOS PROPERTY AT THE DIRECTION OF, OR PURSUANT TO A PERMIT, ORDER OR
AGREEMENT ISSUED OR ENTERED INTO BY DEO, MAY BE DENIED ACCESS TO THE BROWNFELDS
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 BROWNFIELOS PROPERTY
ANY USED OR OTHER INSTRUMENT CONVEYING AN INTEREST IN THE BROWNFIELDS
PROPERTY SHALL CONTAIN THE FOLLOWING NOTICE' 'THIS PROPERLY IS SUBJECT TO THE
BROWNFIELOS AGREEMENT ATTACHED AS EXHIBIT A TO THE NOTICE OF BROWNFIELDS PROPERTY
RECORDED IN THE CRAVEN COUNTY — 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
CONFDENTULITY AND TRADE SECRET PROVISIONS OF THE NORTH CAROLINA PUBLIC RECORDS LAW.
THE OWNER 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 D£O 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 ME
PERSONS LISTED IN SECTION XV.
k. NONE OF THE CONTAMINANTS KNOWN TO BE PRESENT IN THE ENVIRONMENTAL MEDIA AT
THE BROWN LIS PROPE—,, AS DESCRIBED IN PARAGRAPH B ABOVE OF THIS AGREEMENT AND AS
MODIFIED BY DEQ IN WRITING IF ADDITIONAL CONTAMINANTS IN EXCESS OF APPLICABLE STANDARDS
ARE DISCOVERED AT THE BROWNFELDS PROPERTY, MAY BE USED OR STORED AT THE BROWNFIELDS
PROPERTY WITHOUT THE PRIOR WRITTEN APPROVAL OF DEQ, EXCEPT:
T IN OE MIHIMIS OUANrTSS FOR CLEANING AND OTHER ROUTINE HOUSEKEEPING AND
MAINTENANCE ACTIVITIES
Li. IN 11UI05 IN VEHICLES AND
iii. AS CONSTITUENTS OF PRODUCTS AND MATERIALS CUSTOMARILY USED AND STORED IN
RETAIL, MULTI -FAMILY OCCIDENTAL, RAISED -BED GARDENS, ASSOCIATED PARKING, AND WITH PRIOR
WRITTEN APPROVAL FROM DEQ, OTHER COMMERCIAL USES, PRONGED SUCH PRODUCTS AND
MATERIALS ARE STORED IN ORIGINAL RETAIL PACKAGING AND USED AND DISPOSED OF IN
ACCORDANCE WITH APPLICABLE LAWS.
WITHIN 60 DAYS AFTER THE EFFECTIVE DATE OF THIS AGREEMENT OR PRIOR TO LAND
DISTURBANCE ACTIVITIES PROSPECTIVE DEVELOPER SHALL ABANDON MONITORING WELLS, INJECTION
WELLS, RECOVERY WELLS,
MA MA YOMETERS AND OTHER D£ POINTS OF GROUNDWATER ACCESS
AT THE BROWNFIELDSPROPERTY IN ACCORDANCE WITH SUBCHAPTER 2C OF TITLE 154 OF THE
NORTH CAROLINA ADMINISTRATIVE CODE UNLESS AN ALTERNATE SCHEDULE IS APPROVED BY D£C.
WITHIN 30 DAY5 AFTER DOING SO, THE PROSPECTIVE DEVELOPER SHALL PROVIDE DEC A REPORT
SETTING FORTH THE PROCEDURES AND RESULTS.
m.DURIN3 ✓ANUARY OF EACH YEAR AFTER THE YEAR IN WHICH THE NOTICE REFERENCED
BELOW IN PARAGRAPH 20 IS RECORDED, THE OWNER OF ANY PART OF THE BROWNFELDS PROPERTY
AS OF ✓ANUARY IST OF THAT YEAR SHALL SUBMIT A NOTARIZED LAND USE RESTRICTIONS
UPDATE ('GURU) TO DEQ. AND TO THE CHIEF PUBLIC HEALTH AND ENVIRONMENTAL OFFICIALS OF
CRAVEN COUNTY, CERTIFYING THAT, AS OF SAID ✓ANOARY 1ST, THE NOTICE OF BROWNFIELDS
PROPERTY CONTAINING THESE LAND USE RESTRICTIONS REMAINS RECORDED AT THE CRAVEN COUNTY
REGISTER OF DEEDS OFFICE AND /HAT THE LAND USE RESTRICTIONS ARE BEING COMPLIED WITH. THE
SUBMITTED LURU SHALL STATE THE FULL-
, THE NAME, MAILING ADDRESS TELEPHONE AND FACSIMILE NUMBERS, AND CONTACT
PERSONS E-MAIL ADDRESS OF THE OWNER OR BOARD, ASSOCIATION OR APPROVED ENTITY
SUBMITTING THE LURU IF SAID OWNER ACQUIRED ANY PART OF THE BROWNFI£LOS PROPERTY -
THE PREVIOUS CALENDAR YEAR;
i THE TRANSFEREES NAME, MAILING ADDRESS, TELEPHONE AND FACSIMILE NUMBERS, AND
CONTACT PERSONS E-MAIL ADDRESS, IF SAID OWNER TRANSFERRED ANY PART OF THE BROWNFELDS
PROPERTY DURING THE PREVIOUS CALENDAR YEAR;
"' WHETHER ANY VAPOR BARRIER AND/OR MITIGATION SYSTEMS INSTALLED PURSUANT TO
SUBPARAGRAPH I51. 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; AND
A LURU —TIED FOR RENTAL UNITS SHALL INCLUDE THE RENT ROLL AND ENOUGH OF
EACH LEASE ENTERED INTO DURING THE PREVIOUS CALENDAR YEAR TO DEMONSTRATE COMPLIANCE
WITH LESSEE NOTIFICATION REQUIREMENTS IN PARAGRAPHS 21 AND 22 OF THIS AGREEMENT
PROVLDED 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
OMS/ON OF WASTE MANAGEMENT APPROVAL
FOR THE PURPOSES OF NCGS § 1304-310.35
ELLEN LORSCHEIDER, DEPUTY DIRECTOR DATE
DNlSION OF WASTE MANAGEMENT
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IJ7Mlj=9iQ9ejF1 ►C/1►CIA
The most recent environmental sampling at the Brownfields Property reported in the
Environmental Reports occurred on December 20, 2018. The following tables set forth, for
contaminants present at the Brownfields Property above applicable standards or screening levels.
the concentration found at each sample location and the applicable standard or screening level.
Screening levels and standards are shown for reference only and are not set forth as cleanup
levels for the purposes of this Agreement.
a. Groundwater contaminants in micrograms per liter (the equivalent of parts per
billion), the standards for which are contained in Title 15A of the North Carolina Administrative
Code, Subchapter 2L, Rule .0202(2L), (April 1, 2013 version) or the 21, Groundwater Interim
LIF—imam Alln hla ('.nnr i-tio— RMAf Cl (Anal 1 7011 —inn/'
Groundwater
Contaminant
Sample
Location
Date of
Sampling
Concentration
Exceeding Standard
Standard
(µme)
Bis2-edwlhex'1 hthalata
MWl
7/6/2015
24.9
3
C9-C18 Ali hatics
MWl
11/30/2016
958
700
C9-C22 Aromatics
MW]
11/30/2016
558
200
MW2
11/30/2016
433
MW3
11/23/2015
260
Chlombenzene
TW-3
5/20/2015
131
50
Chloromethane
MW1
1 11/30/2016
5.3
3
1-Mehylnaphthalene
TW-1
1/22/2015
15.2
MW1
11/30/2016
7.14]
MW2
ll/30/2016
6.61
MW3
11/23/2015
2.16J
J-'fargel analyte was positively identified below the quanmtahon limn and above the detection loan.
b. 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 Remediatlon Goals of the Inactive Hazardous Sites Branch of DEQ's Superfund Section
(achy 2010)
Concentration
Soil
Sample
Depth
Date of
Exceeding
Residential
Contaminant
Location
(ti)
Sampling
Screening
Screening
Level
m
Level (mg/kg)
1-Meth Ina hthalene
SW-3
4.5
1 3/21/2017
1 24.9
18
c. Groundwater contaminants with the potential for vapor intrusion in micrograms
per liter (the equivalent of parts per billion), the screening levels for which are contained in the
DWM Vapor Intmsion Guidance, Residential Vapor Intrusion Screening Levels (VISE), May
Mm 0 vRrAinn-
Groundwater
Concentration
Residential VI
Contaminant with
Sample
Date of
Exceeding
Screening
Potential for Vapor
Location
Sampling
Screening
Level'
Intrusion
Level(µg/L)
(µg/L)
Bromomethane
MWl
11/30/2016
8
3.5
Chlombenzene
TW-3
5/20/2013
131
82
1. Screening levels displaved for non -carcinogens are for hazard quotient equal to 0.2. Screening levels
displayed for carcinogens arc for 1.08° lifetime incremental cancer risk target.
l
REVIEW OFFICER OF CRAVEN COUNTY, CERTIF1' THAT THE MAP OR PLAT TO
WHICH THIS CERTIFICATION IS AFFIXED MEETS ALL STATUTORY
REQUIREMENTS FOR RECORDING.
"PRELIMINOY.' PLA7°19 '
NOT FOR SALES, -C/�/t IIRIA_tEC€S,
OR RECO�Qo°oa
I I I,IIIPSy\\

EXHIBIT C
LEGAL DESCRIPTION
POLO ENTERPRISES, LLC - BROWNFIELDS PROPERTY
223 CRAVEN STREET, NEW BERN, N.C.
LYING IN THE CITY OF NEW BERN, CRAVEN COUNTY, NORTH CAROLINA ON THE
WESTERN SIDE OF CRAVEN STREET, BETWEEN SOUTH FRONT AND POLLOCK
STREETS AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT AN EXISTING PK NAIL HAVING NAD 83/2011 NORTH CAROLINA GRID
COORDINATES, N = 499,226.4771 FEET, E = 2,586,376.1094 FEET;
THENCE, FROM THE POINT OF BEGINNING SO LOCATED, S 820 20' 25" E FOR A
DISTANCE OF 215.00 FEET TO AN EXISTING PK NAIL IN THE WESTERN RIGHT-OF-WAY
OF CRAVEN STREET (60 FOOT PUBLIC RIGHT-OF-WAY); THENCE, ALONG THE
WESTERN RIGHT-OF-WAY LINE OF CRAVEN STREET (60 FOOT PUBLIC RIGHT-OF-
WAY), S 07° 37' 52" W FOR A DISTANCE OF 32.00 FEET TO AN EXISTING PK NAIL;
THENCE, LEAVING THE WESTERN RIGHT-OF-WAY LINE OF CRAVEN STREET (60 FOOT
PUBLIC RIGHT-OF-WAY), N 82° 20' 02" W FOR A DISTANCE OF 214.93 FEET TO AN
EXISTING MAG NAIL; THENCE N 07' 30' 19" E A DISTANCE OF 31.98 FEET TO THE POINT
AND PLACE OF BEGINNING;
CONTAINING 0.158 ACRES MORE OR LESS.