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Kerner Village/23072-19-034/20210225
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Property Owner: S Main Partners, LLC Recorded in Book ____, Page ____ Associated plat recorded in Plat Book ____, Page ____ NOTICE OF BROWNFIELDS PROPERTY
Brownfields Property Name: Kerner Village Brownfields Project Number: 23072-19-034 This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat component, have been filed this _____ day of __________________, 202__ by S Main Partners, LLC (“Prospective Developer”). This Notice concerns contaminated property. A copy of this Notice certified by the North Carolina Department of Environmental Quality (“DEQ”) is required to be filed in the Register of Deeds’ Office in the county or counties in which the land is located, pursuant to North Carolina General Statutes (“NCGS”), § 130A-310.35(b). This Notice is required by NCGS § 130A-310.35(a), in order to reduce or eliminate the danger to public health or the environment posed by environmental contamination at a property (“Brownfields Property”) being addressed under the Brownfields Property Reuse Act of 1997, NCGS § 130A, Article 9, Part 5 (“Act”). Pursuant to NCGS § 130A-310.35(b), the Prospective Developer must file a certified copy of this Notice within 15 days of Prospective Developer’s receipt of DEQ’s approval of the Notice or Prospective Developer’s entry into the Brownfields Agreement required by the Act, whichever is later. The copy of the Notice certified by DEQ must be recorded in the grantor index under the names of the owners of the land and, if Prospective Developer is not the owner, also under the Prospective Developer’s name.
The Brownfields Property is located at 813-835 South Main Street, Forsyth County, NC. S
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Main Partners, LLC intends to redevelop the Brownfields Property for no uses other than industrial, office, parking, retail, restaurant, recreational, hotel, storage unit, and with prior written DEQ approval, other commercial uses. The Brownfields Property was originally developed as a shopping center and is comprised of one parcel (Tax Parcel 68767-91-1024) totaling approximately 14.94 acres. It contains five buildings, including a shopping center building, a
Hardee’s restaurant, a PNC Bank, a restaurant building, and a former restaurant building. Groundwater and soil are contaminated at the Brownfields Property due to historical activities conducted thereon and on adjacent properties. The Brownfields Agreement between Prospective Developer and DEQ is attached
hereto as Exhibit A. It is required by NCGS § 130A-310.32 and 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. The Brownfields Agreement’s Exhibit 2 consists of one or more data tables reflecting the concentrations of and other information regarding the Brownfields Property’s regulated substances and contaminants.
Attached as Exhibit B to this Notice is a reduction, to 8.5 inches x 11 inches, 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
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on the Brownfields Property: a. No use may be made of the Brownfields Property other than for industrial, office, parking, retail, restaurant, recreational, storage unit, hotel, and with prior written DEQ approval, other commercial uses. For purposes of this restriction, the following definitions
apply: i. “Industrial” defined as the assembly, fabrication, processing, warehousing or distribution of goods or materials. ii. “Office” defined as the provision of business or professional services, including related employee amenities such as a break room and gym.
iii. “Parking” defined as the temporary accommodation of motor vehicles in an area designed for same. iv. “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. Dry cleaners using chlorinated solvents or products
containing petroleum hydrocarbon chemicals are prohibited. Dry cleaners using other products are permitted, if approved DEQ in advance. v. “Restaurant” defined as a commercial business establishment that prepares and serves food and beverages to patrons. vi. “Recreational” 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. “Storage Unit” defined as spaces that are commercially rented on a
short- or long-term basis by consumers and businesses for the storage of personal effects, household goods, equipment and other non-hazardous materials that are in compliance with all other aspects of this Agreement. viii. “Hotel” defined as the provision of overnight lodging to paying
customers, and to associated food services, gym, reservation, cleaning, utilities, parking, and on-
site hospitality, management and reception services. 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 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
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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; 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. Unless otherwise approved by DEQ in writing, 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 landscaping 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 with work conducted in accordance with a DEQ-approved EMP as outlined above in subparagraph 15.c.
e. Soil may not be removed from, or brought onto, the Brownfields Property
without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ, unless conducted in accordance with an approved EMP as outlined above in subparagraph 15.c. f. No enclosed building may be constructed on the Brownfields Property and no
existing building, defined as those depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 20 below, may be occupied until DEQ determines in writing that: i. the building is or would be protective of the building’s users, public
health and the environment from risk of vapor intrusion based on Brownfields Property
assessment data or a site-specific risk assessment approved in writing by DEQ, or as otherwise outlined under Work to Be Performed in paragraph 14, above; or
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ii. the building is or would be sufficiently distant from the Brownfields Property’s groundwater and/or soil contamination based on assessment data approved in writing by DEQ that the building’s users, public health and the environment will be protected from risk from vapor intrusion related to said contamination; or iii. vapor intrusion mitigation measures are installed and/or implemented
to the satisfaction of a professional engineer licensed in North Carolina, as evidenced by said engineer’s professional seal on a report that includes photographs and a description of the installation and performance of said measures. Any design specification for vapor intrusion mitigation measures shall be approved in writing by DEQ in advance of installation and/or implementation of said measures. The design specifications shall include methodology(ies) for
demonstrating performance of said measures. g. As part of the Land Use Restrictions Update described below in subparagraph 15.m 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).
h. 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. i. 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 Forsyth 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
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information related to the conveyance may be redacted to the extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records Law. The owner conveying an interest may use the following mechanisms to comply with the obligations of this subparagraph: (i) If every lease and rider is identical in form, the owner conveying an interest may provide DEQ with copies of a form lease or rider evidencing compliance with this
subparagraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notice and Submissions); or (ii) The owner conveying an interest may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV. j. 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.
k. The Brownfields Property may not be used for child care, adult care centers or schools without the prior written approval of DEQ. l. None of the contaminants known to be present in the environmental media at the Brownfields Property, as described in Exhibit 2 of this Agreement and as modified by DEQ
in writing if additional contaminants in excess of applicable standards are discovered at the Brownfields Property, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except: i. in de minimis quantities for cleaning and other routine housekeeping and
maintenance activities; ii. as fuel or other fluids customarily used in vehicles, landscaping equipment and emergency generators.
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 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 Forsyth County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use
restrictions remains recorded at the Forsyth 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
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Brownfields Property during the previous calendar year; iii. A LURU submitted for rental units shall include a list of current tenants, lease start and end dates, and enough of each lease entered into during the previous calendar year to demonstrate compliance with lessee notification requirements in subparagraph 15.i, above, and paragraph 21, below, 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; and iv. 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. For purposes of the land use restrictions set forth above, the DEQ point of contact shall be the DEQ Brownfields Property Management Unit 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. 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.
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IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this _____ day of _______________, 202__. S Main Partners, LLC
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: ________________________________.
Date: ___________________ ___________________________________ Official Signature of Notary
___________________________________ (Official Seal) Notary’s printed or typed name, Notary Public My commission expires: _____________________
************************************ 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: _________________________________________ ________________________
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: S Main Partners, LLC
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re: BROWNFIELDS PROPERTY REUSE ACT ) Kerner Village OF 1997, NCGS § 130A-310.30, et seq. ) 813-835 South Main Street Brownfields Project # 23072-19-034 ) Kernersville, Forsyth County
I. INTRODUCTION
This Brownfields Agreement (“Agreement”) is entered into by the North Carolina
Department of Environmental Quality (“DEQ”) and S Main Partners, LLC (collectively the
“Parties”) pursuant to the Brownfields Property Reuse Act of 1997, NCGS § 130A-310.30, et
seq. (the “Act”) for the property located at 813-835 South Main Street, Forsyth County, NC (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.
S Main Partners, LLC is a Georgia Limited Liability Company that was formed on
October 16, 2019 with a Certificate of Authority to transact business in the State of North
Carolina filed on November 8, 2019. The registered agent for the company is Cogency Global
Inc., the manager is Matthew Klump and the mailing address for the company is 12313 Reed
Forest Court, Glen Allen, Virginia 23059. The Brownfields Property consists of one parcel, Tax
PIN: 6876-91-1024 totaling approximately 14.94 acres of land located in a commercial area of
Forsyth County.
S Main Partners, LLC intends to redevelop the Brownfields Property for no uses other
than industrial, office, parking, retail, restaurant, recreational, hotel, storage unit, and with prior
written DEQ approval, other commercial uses. Most recently the Brownfields Property has been
used for a retail shopping center with restaurants and parking. Groundwater is contaminated at
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the Brownfields Property likely due to off-site sources on adjacent properties.
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 S Main Partners, LLC’s for contaminants at the Brownfields Property.
The Parties agree that S Main Partners, LLC’s entry into this Agreement, and the actions
undertaken by S Main Partners, LLC in accordance with the Agreement, do not constitute an
admission of any liability by S Main Partners, LLC for contaminants at the Brownfields
Property. The resolution of this potential liability, in exchange for the benefit S Main Partners,
LLC shall provide to DEQ, is in the public interest.
II. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement which are
defined in the Act or elsewhere in NCGS § 130A, Article 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
1. “Brownfields Property” shall mean the property which is the subject of this
Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. "Prospective Developer" shall mean S Main Partners, LLC.
III. STATEMENT OF FACTS
3. The Brownfields Property is comprised of one parcel (Tax Parcel 68767-91-1024)
totaling approximately 14.94 acres of land containing five buildings, including a shopping center
building (approximately 65,297 square feet (sq ft)), a Hardee’s restaurant (approximately 3,058
sq ft), a PNC Bank (approximately 2,432 sq ft), a restaurant building (approximately 4,200 sq ft),
and a former restaurant building (approximately 8,176 sq ft). The Brownfields Property is
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located in a commercial area of Kernersville. The Prospective Developer has committed itself to
redevelopment for no uses other than industrial, office, hotel, parking, retail, restaurant, storage
unit, recreational, and with prior written DEQ approval, other commercial uses.
4. The Brownfields Property is located in a commercial area bordered to the north by a
Take 5 Oil Change (former BP gas station), Wendy’s restaurant, South Main Street, and
followed by commercial properties; to the east by commercial properties, including Goodwill
Industries, a cemetery and wooded undeveloped land; to the south by I-40 Business, and to the
west by Take 5 Oil Change and I-40 Business.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the “Environmental Reports” regarding the Brownfields Property:
Additional Assessment Report, Kerner Village Shopping Center Trammco Environmental Solutions, LLC
August 24, 2020
Soil Gas Investigation, Kerner Village Shopping Center Trammco Environmental Solutions, LLC
November 13, 2019
Limited Phase II Environmental Site Assessment, Kerner Village Shopping Center Trammco Environmental Solutions, LLC
August 6, 2019
Phase I Environmental Site Assessment, Kerner Village Shopping Center Trammco Environmental Solutions, LLC
July 19, 2019
Limited Groundwater Sampling Report, Camelot Cleaners DSCA Site ID DC340007 AECOM April 21, 2017
Soil Gas, Sub-Slab Vapor and Indoor Air Sampling Results, Former Camelot Cleaners
DSCA Site ID #34-0007
URS August 28, 2012
Phase II Environmental Assessment, Kerner Village Shopping Center ECS Carolinas, LLP March 7, 2007
6. For purposes of this Agreement, DEQ has succinctly summarized the historical uses
and environmental impacts to the Brownfields Property. DEQ relies on the following
information contained in the Environmental Reports and representations by Prospective
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Developer as to use and ownership of the Brownfields Property:
SITE SUMMARY INFORMATION
Site Historical Operations/Sources i. The Brownfields Property was developed as a shopping center in approximately 1980, prior to that it was developed with one residential structure, but was otherwise undeveloped.
Current Operations/Activities i. The Brownfields Property is currently owned by S Main Partners, LLC and was purchased from the receiver of The
Estate of J.C. Faw on January 27, 2020.
ii. The Brownfields Property is developed with a main shopping center building (approximately 65,297 sq ft), a Hardee’s restaurant (approximately 3,058 sq ft), a PNC bank
(approximately 2,432 sq ft), a restaurant building
(approximately 4,200 sq ft), a former restaurant building (approximately 8,176 sq ft), and an asphalt parking lot. A 2.5-acre undeveloped lot is located along the eastern portion of the Brownfields Property, and a storm water retention pond is
located in the southeastern corner of the Brownfields Property.
A dry cleaner (currently “$2.75 Cleaners”) has operated on the Brownfields Property in its current location since at least 1998.
Previous or Current Remedial Actions Onsite: i. A dry cleaning service (currently “$2.75 Cleaners”) has operated at the Brownfields Property since 1998. No releases of chlorinated solvents from the dry cleaner located on the Brownfields Property have been reported to the DEQ.
Offsite: i. Remedial actions have been implemented at the Camelot Cleaners, a former dry cleaner located offsite and upgradient of the Brownfields Property at 820 S. Main Street, under the North Carolina Dry-Cleaning Solvent Cleanup Act (DSCA, Site ID DC340007), due to a release of dry-cleaning
solvents to soil and groundwater. Results from environmental assessment activities performed under DSCA indicate that the Camelot Cleaners groundwater plume has migrated onto the Brownfields Property.
ii. A former BP gas station is located adjacent to the northeastern Brownfields Property boundary and a Speedway gas station (Run in Store #715, Underground Storage Tank (UST) Incident #10840) is located north of the Brownfields Property across South Main Street. The Speedway property
has a recorded NC UST Section Notice of Residual Petroleum. iii. Groundwater sampling results from Camelot Cleaners and brownfields assessment groundwater sampling activities
indicate that the petroleum-related VOCs detected in
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groundwater at the Brownfields Property at concentrations above NCAC Title 15A Subchapter 2L Groundwater Standards originated from offsite sources.
Contaminated Media Soil: No contaminants were detected in soil samples collected
at the Brownfields Property above Non-Residential Preliminary Soil Remediation Goals (PRSGs). Groundwater: Chlorinated volatile organic compounds (VOCs), including tetrachloroethylene (PCE) and petroleum
hydrocarbon compounds, have been detected in concentrations exceeding NCAC Title 15A Subchapter 2L groundwater standards. Soil Gas/Sub-Slab Soil Vapor: No VOCs were detected in
sub-slab or soil gas vapor samples in concentrations above NCDEQ Non-residential Vapor Intrusion Screening Levels (VISLs)
Offsite Receptors i. As of the recorded date of this Agreement, no releases of regulated chemicals from onsite operations were detected on the Brownfields Property at concentrations above applicable
screening levels. Groundwater contamination detected onsite
at concentrations above applicable screening levels is indicative of offsite sources. Existing Land Use Restrictions Prior to Brownfields Agreement
None
7. The most recent environmental sampling at the Brownfields Property is reported in
the Brownfields Assessment Report dated August 24, 2020. 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.
8. 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
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submitting to DEQ a Brownfields Property Application (BPA) dated March 28, 2019, purchasing
the Brownfields Property on January 20, 2020, obtaining approval from DEQ on July 16, 2019
for an Environmental Management Plan (EMP) to perform renovation work, and, in accordance
with the EMP, performance of the renovation work.
9. Prospective Developer has provided DEQ with information, or sworn certifications
regarding that information on which DEQ relies for purposes of this Agreement, sufficient to
demonstrate that:
a. Prospective Developer and any parent, subsidiary, or other affiliate has
substantially complied with federal and state laws, regulations and rules for protection of the
environment, and with the other agreements and requirements cited at NCGS § 130A-
310.32(a)(1);
b. As a result of the implementation of this Agreement, the Brownfields Property
will be suitable for the uses specified in the Agreement while fully protecting public health and
the environment;
c. Prospective Developer's reuse of the Brownfields Property will produce a
public benefit commensurate with the liability protection provided Prospective Developer
hereunder;
d. Prospective Developer has or can obtain the financial, managerial and
technical means to fully implement this Agreement and assure the safe use of the Brownfields
Property; and
e. Prospective Developer has complied with all applicable procedural
requirements.
10. 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-
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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
11. The redevelopment of the Brownfields Property proposed herein would provide the
following public benefits:
a. an increase in the Brownfields Property’s productivity;
b. a spur to additional community investment and redevelopment, through
improved neighborhood appearance and otherwise;
c. an increase in tax revenue for affected jurisdictions;
d. creation of construction and full-time jobs;
e. “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
12. 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.
13. 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
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Agreement (DEQ’s Covenant Not to Sue and Reservation of Rights), DEQ is not requiring
Prospective Developer to perform any active remediation at the Brownfields Property other than
remediation that may be required pursuant to a DEQ-approved Environmental Management Plan
(EMP) required by this Section.
14. Based on the type and concentrations of impacts to groundwater and soil gas detected
during assessment activities as outlined in paragraph 7 above, indoor air exposure routes do not
appear to present a risk to site occupants as of the effective date of this Agreement. Therefore,
the condition of subparagraph 15.f.i below has been met only for the existing Brownfields
Property buildings as depicted on the survey plat component referenced in paragraph 20 below.
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 industrial,
office, parking, retail, restaurant, recreational, storage unit, hotel, and with prior written DEQ
approval, other commercial uses. For purposes of this restriction, the following definitions
apply:
i. “Industrial” defined as the assembly, fabrication, processing,
warehousing or distribution of goods or materials.
ii. “Office” defined as the provision of business or professional services,
including related employee amenities such as a break room and gym.
iii. “Parking” defined as the temporary accommodation of motor vehicles
in an area designed for same.
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iv. “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. Dry cleaners using chlorinated solvents or products
containing petroleum hydrocarbon chemicals are prohibited. Dry cleaners using other products
are permitted, if approved DEQ in advance.
v. “Restaurant” defined as a commercial business establishment that
prepares and serves food and beverages to patrons.
vi. “Recreational” 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. “Storage Unit” defined as spaces that are commercially rented on a
short- or long-term basis by consumers and businesses for the storage of personal effects,
household goods, equipment and other non-hazardous materials that are in compliance with all
other aspects of this Agreement.
viii. “Hotel” defined as the provision of overnight lodging to paying
customers, and to associated food services, gym, reservation, cleaning, utilities, parking, and on-
site hospitality, management and reception services.
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
10 23072-19-034/Kerner Village 20210225
in accord, as determined by DEQ, with an 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;
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. Unless otherwise approved by DEQ in writing, 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 landscaping to depths not exceeding 24”;
ii. mowing and pruning of above-ground vegetation;
iii. for repair of underground infrastructure, provided that DEQ shall be
11 23072-19-034/Kerner Village 20210225
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 with work conducted in accordance with a DEQ-
approved EMP as outlined above in subparagraph 15.c.
e. Soil may not be removed from, or brought onto, the Brownfields Property
without prior sampling and analysis to DEQ’s satisfaction and the written approval of DEQ,
unless conducted in accordance with an approved EMP as outlined above in subparagraph 15.c.
f. No enclosed building may be constructed on the Brownfields Property and no
existing building, defined as those depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 20 below, may be occupied until DEQ determines in writing
that:
i. the building is or would be protective of the building’s users, public
health and the environment from risk of vapor intrusion based on Brownfields Property
assessment data or a site-specific risk assessment approved in writing by DEQ, or as otherwise
outlined under Work to Be Performed in paragraph 14, above; 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
12 23072-19-034/Kerner Village 20210225
mitigation measures shall be approved in writing by DEQ in advance of installation and/or
implementation of said measures. The design specifications shall include methodology(ies) for
demonstrating performance of said measures.
g. As part of the Land Use Restrictions Update described below in
subparagraph 15.m 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).
h. 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
13 23072-19-034/Kerner Village 20210225
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.
i. 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 Forsyth County land
records, Book ____, Page ____.” A copy of any such instrument shall be sent to the persons
listed in Section XV (Notices and Submissions), though financial figures and other confidential
information related to the conveyance may be redacted to the extent said redactions comply with
the confidentiality and trade secret provisions of the North Carolina Public Records Law. The
owner conveying an interest may use the following mechanisms to comply with the obligations
of this subparagraph: (i) If every lease and rider is identical in form, the owner conveying an
interest may provide DEQ with copies of a form lease or rider evidencing compliance with this
subparagraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section
XV (Notice and Submissions); or (ii) The owner conveying an interest may provide abstracts of
leases, rather than full copies of said leases, to the persons listed in Section XV.
j. 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.
k. The Brownfields Property may not be used for child care, adult care centers or
schools without the prior written approval of DEQ.
l. None of the contaminants known to be present in the environmental media at
the Brownfields Property, as described in Exhibit 2 of this Agreement and as modified by DEQ
14 23072-19-034/Kerner Village 20210225
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. as fuel or other fluids customarily used in vehicles, landscaping
equipment and emergency generators.
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 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 Forsyth County, certifying
that, as of said January 1st, the Notice of Brownfields Property containing these land use
restrictions remains recorded at the Forsyth 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. A LURU submitted for rental units shall include a list of current
tenants, lease start and end dates, and enough of each lease entered into during the previous
calendar year to demonstrate compliance with lessee notification requirements in subparagraph
15.i, above, and paragraph 21, below, of this Agreement provided that if standard form leases are
15 23072-19-034/Kerner Village 20210225
used in every instance, a copy of such standard form lease may be sent in lieu of copies of actual
leases; and
iv. 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.
16. The desired result of the above-referenced land use restrictions is to make the
Brownfields Property suitable for the uses specified in the Agreement while fully protecting
public health and the environment.
17. The guidelines, including parameters, principles and policies within which the
desired results are to be accomplished are, as to field procedures and laboratory testing, the
Guidelines of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section and the Division
of Waste Management Vapor Intrusion Guidance, as embodied in their most current version.
18. The consequence of achieving the desired results will be that the Brownfields
Property will be suitable for the uses specified in the Agreement while fully protecting public
health and the environment. The consequence of not achieving the desired results will be that
modifications to land use restrictions and/or remediation in some form may be necessary to fully
protect public health and/or the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
19. In addition to providing access to the Brownfields Property pursuant to subparagraph
15.h 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
16 23072-19-034/Kerner Village 20210225
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 Forsyth
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 Forsyth 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
17 23072-19-034/Kerner Village 20210225
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
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
18 23072-19-034/Kerner Village 20210225
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 March 28, 2019, by which it applied for this
Agreement. That use is industrial, office, parking, retail, restaurant, recreational, and with prior
written DEQ approval, other commercial uses. Prospective Developer also certifies that to the
best of its knowledge and belief it has fully and accurately disclosed to DEQ all information
known to Prospective Developer and all information in the possession or control of its officers,
directors, employees, contractors and agents which relates in any way to any past use of
regulated substances or known contaminants at the Brownfields Property and to its qualification
for this Agreement, including the requirement that it not have caused or contributed to the
contamination at the Brownfields Property.
IX. DEQ’S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
25. Unless any of the following apply, Prospective Developer shall not be liable to DEQ,
and DEQ covenants not to sue Prospective Developer, for remediation of the Brownfields
Property except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the Brownfields Property by or under the control
or direction of the Prospective Developer increase the risk of harm to public health or the
environment, in which case Prospective Developer shall be liable for remediation of the areas of
the Brownfields Property, remediation of which is required by this Agreement, to the extent
necessary to eliminate such risk of harm to public health or the environment.
c. A land use restriction set out in the Notice of Brownfields Property required
19 23072-19-034/Kerner Village 20210225
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
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
20 23072-19-034/Kerner Village 20210225
public health or the environment associated with the Brownfields Property beyond an acceptable
range and in a manner or to a degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under NCGS § 130A-310.35.
26. Except as may be provided herein, DEQ reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
27. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, NCGS § 113A-1, et seq.
28. Consistent with NCGS § 130A-310.33, the liability protections provided herein, and
any statutory limitations in paragraphs 25 through 27 above, apply to all of the persons listed in
NCGS § 130A-310.33, including future owners of the Brownfields Property, to the same extent
as Prospective Developer, so long as these persons are not otherwise potentially responsible
parties or parents, subsidiaries, or affiliates of potentially responsible parties.
X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
29. In consideration of DEQ’s Covenant Not To Sue in Section IX of this Agreement
and in recognition of the absolute State immunity provided in NCGS § 130A-310.37(b), the
Prospective Developer hereby covenants not to sue and not to assert any claims or causes of
action against DEQ, its authorized officers, employees, or representatives with respect to any
action implementing the Act, including negotiating, entering, monitoring or enforcing this
Agreement or the above-referenced Notice of Brownfields Property.
XI. PARTIES BOUND
30. This Agreement shall apply to and be binding upon DEQ, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party’s signatory to this
21 23072-19-034/Kerner Village 20210225
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
XII. DISCLAIMER
31. Prospective Developer and DEQ agree that this Agreement meets the requirements of
the Act, including but not limited to the requirements set forth in NCGS § 130A-310.32(a)(2).
However, this Agreement in no way constitutes a finding by DEQ as to the risks to public health
and the environment which may be posed by regulated substances at the Brownfields Property, a
representation by DEQ that the Brownfields Property is fit for any particular purpose, nor a
waiver of Prospective Developer’s duty to seek applicable permits or of the provisions of NCGS
§ 130A-310.37.
32. Except for the land use restrictions set forth in paragraph 15 above and NCGS §
130A-310.33(a)(1)-(5)'s provision of the Act's liability protection to certain persons to the same
extent as to a prospective developer, no rights, benefits or obligations conferred or imposed upon
Prospective Developer under this Agreement are conferred or imposed upon any other person.
XIII. DOCUMENT RETENTION
33. The Prospective Developer agrees to retain and make available to DEQ all business
and operating records, contracts, site studies and investigations, remediation reports, and
documents generated by and/or in the control of the Prospective Developer, its affiliates or
subsidiaries relating to storage, generation, use, disposal and management of regulated
substances at the Brownfields Property, including without limitation all Material Safety Data
Sheets or Safety Data Sheets, for six (6) years following the effective date of this Agreement,
unless otherwise agreed to in writing by the Parties. Said records may be retained electronically
such that they can be retrieved and submitted to DEQ upon request. At the end of six (6) years,
the Prospective Developer shall notify DEQ of the location of such documents and shall provide
22 23072-19-034/Kerner Village 20210225
DEQ with an opportunity to copy any documents at the expense of DEQ. By entering into this
Agreement, Prospective Developer waives no rights of confidentiality or privilege provided by
the North Carolina Public Records Act or otherwise and, at the time DEQ requests to copy or
inspect said documents, Prospective Developer shall provide DEQ with a log of documents
withheld from DEQ, including a specific description of the document(s) and the alleged legal
basis upon which they are being withheld. To the extent DEQ retains any copies of such
documents, Prospective Developer retains all rights it then may have to seek protection from
disclosure of such documents as confidential business information.
XIV. PAYMENT OF ENFORCEMENT COSTS
34. If the Prospective Developer fails to comply with the terms of this Agreement,
including, but not limited to, the provisions of Section V (Work to be Performed), it shall be
liable for all litigation and other enforcement costs incurred by DEQ to enforce this Agreement
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
35. Unless otherwise required by DEQ or a Party notifies the other Party in writing of a
change in contact information, all notices and submissions pursuant to this Agreement shall be
sent by prepaid first class U.S. mail, as follows:
a. for DEQ:
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: Matthew Klump 12313 Reed Forest Court Glen Allen, Virginia 23059
23 23072-19-034/Kerner Village 20210225
Notices and submissions sent by prepaid first class U.S. mail shall be effective on the third day
following postmarking. Notices and submissions sent by hand or by other means affording
written evidence of date of receipt shall be effective on such date.
XVI. EFFECTIVE DATE
36. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving the signed, conditionally approved Agreement from DEQ. DEQ’s approval of
this Agreement is conditioned upon the complete and timely execution and filing of this
Agreement in the manner set forth herein. Prospective Developer shall expeditiously sign the
Agreement in order to effect the recordation of the full Notice of Brownfields Property within
the statutory deadline set forth in N.C.G.S. § 130A-310.35(b). If the Agreement is not signed by
Prospective Developer within 45 days after such receipt, DEQ has the right to revoke its
approval and certification of this Agreement, and invalidate its signature on this Agreement.
XVII. TERMINATION OF CERTAIN PROVISIONS
37. If any Party believes that any or all of the obligations under Section VI
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the
requirements of the Agreement, that Party may request in writing that the other Party agree to
terminate the provision(s) establishing such obligations; provided, however, that the provision(s)
in question shall continue in force unless and until the Party requesting such termination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CONTRIBUTION PROTECTION
38. With regard to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
claims to the extent provided by NCGS § 130A-310.37(a)(5)-(6). The subject matter of this
Agreement is all remediation taken or to be taken and response costs incurred or to be incurred
24 23072-19-034/Kerner Village 20210225
by DEQ or any other person in relation to the Brownfields Property.
39. The Prospective Developer agrees that, with respect to any suit or claim for
contribution brought by it in relation to the subject matter of this Agreement, it will notify DEQ
in writing no later than 60 days prior to the initiation of such suit or claim.
40. The Prospective Developer also agrees that, with respect to any suit or claim for
contribution brought against it in relation to the subject matter of this Agreement, it will notify
DEQ in writing within 10 days of receiving said suit or claim.
XIX. PUBLIC COMMENT
41. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after the last of the following public notice tasks occurs: publication of the
approved summary of the Notice of Intent to Redevelop a Brownfields Property required by
NCGS § 130A-310.34 in a newspaper of general circulation serving the area in which the
Brownfields Property is located; conspicuous posting of a copy of said summary at the
Brownfields Property; and mailing or delivery of a copy of the summary to each owner of
property contiguous to the Brownfields Property. After expiration of that period, or following a
public meeting if DEQ holds one pursuant to NCGS § 130A-310.34(c), DEQ may modify or
withdraw its consent to this Agreement if comments received disclose facts or considerations
which indicate that this Agreement is inappropriate, improper or inadequate.
IT IS SO AGREED: NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY By:
____________________________________________________________________________
Ellen Lorscheider Date Deputy Director, Division of Waste Management IT IS SO AGREED:
S Main Partners, LLC
25 23072-19-034/Kerner Village 20210225
By: ____________________________________________________________________________
Name typed or printed: Date Title typed or printed:
&RS\ULJKW1DWLRQDO*HRJUDSKLF6RFLHW\LFXEHG
0 0.50.25 Miles
Kerner Village Shopping Center
813 South Main St.
Kernersville, NC 27284
&RS\ULJKW1DWLRQDO*HRJUDSKLF6RFLHW\LFXEHG&&RRSS\\UULLJJKKWW11DDWWLLRRQQDDOO **HHRRJJ DSKLF 6RFLHW\ LEUUDDSSKKLLFF66RRFFLLHHWW\\LLFFXXEEHGHHGG
0 0.50.25 Miles
Kerner Village Shopping Center
813 South Main St.
Kernersville, NC 27284Site Location MapSite Location Map
Exhibit 1
Kerner Village Shopping Center
23072-19-034/Kerner Village (20210225)
1
Exhibit 2 The most recent environmental sampling at the Brownfields Property reported in the Environmental Reports occurred on July 17, 2020. The following table sets forth, for contaminants present at the Brownfields Property above commercial/industrial use 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 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 (µg/L)
Standard
(µg/L)
Benzene DMW-2 3/16/2017 1,400 1.0 MW-14 3/16/2017 120
Methyl tert-Butyl
Ether (MTBE) DMW-2 3/16/2017 1,100 20.0 MW-14 3/16/2017 510
Naphthalene DMW-2 3/16/2017 77 0.4
Tetrachloroethylene
SB-2 7/15/2019 1.0 0.7
SB-5 7/16/2019 11.8
SB-7D 7/16/2019 2.6
DMW-2 3/16/2017 430
MW-10 3/16/2017 1.1
MW-13 10/8/2015 9.6
Trichloroethylene DMW-2 3/16/2020 35 3.0
23072-19-034/Kerner Village (20210225)
2
GROUNDWATER VAPOR INTRUSION RISK
Groundwater contaminants with potential for vapor intrusion (VI) in micrograms per liter
(the equivalent of parts per billion), the vapor intrusion screening levels for which are derived from the Non-Residential Vapor Intrusion Screening Levels of the Division of Waste Management February 2018 version):
Groundwater Contaminant with
Potential for Vapor
Intrusion
Sample
Location
Date of
Sampling
Concentration
Exceeding Screening
Level (µg/L)
Non-
Residential VI Screening Level1
(µg/L)
Benzene DMW-2 3/16/2017 1,400 69.0 MW-14 3/16/2017 120
Tetrachloroethylene
SB-2 7/15/2019 1.0
48.0
SB-5 7/16/2019 11.8
SB-7D 7/16/2019 2.6
DMW-2 3/16/2017 430
MW-10 3/16/2017 1.1
MW-13 10/8/2015 9.6
Trichloroethylene DMW-2 3/16/2020 35 4.4
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 Industrial Health- Based Soil Remediation Goals of the Inactive Hazardous Sites Branch of DEQ’s Superfund Section (February 2018 version):
Soil Contaminant Sample Location Depth (ft) Date of Sampling
Concentration Exceeding Screening
Level (mg/kg)
Industrial Screening
Level1 (mg/kg)
Arsenic2
HA2-1R (3-4) 3-4 7/17/2020 8.3
3.0 HA2-2 (3-4) 3-4 7/15/2020 5.3
SPC-2 0-1 7/15/2020 4.9
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. 2No historical use of arsenic identified at the Brownfields Property.
EXHIBIT C
LEGAL DESCRIPTION for Tax Parcel: 6876-91-1024
Situated in the State of North Carolina, Forsyth County, Kernersville Township, and within the limits of
The Town of Kernersville and more particularly described as follows:
Beginning at a 1/2” existing iron pipe (EIP) located at the southern margin of the right of way of South
Main Street / NC Highway 150, a variable width right of way, the common corner of now or formerly Tax
Parcel Identification Number (Pin): 6876-91-2393, the Gjergji Llanaf and Marildi Llanaj property as
recorded in Deed Book 2802, Page 3284 and now or formerly Tax Pin: 6876-91-1024, the J.C. Faw
property, as recorded in Deed Book 2323, Page 1682, (also known as a portion of Lot 1 of “Kerners
Village Shopping Center: as recorded in Plat Book 48, Page 89): Thence running with the Llanaf
property the following two (2) courses and distances; (1) S 15°48'27" E, 174.34’ to a 1/2” EIP, and (2)
N 73°57'20" E, 96.77’ to a 1/2” EIP, located in the western line of now or formerly Tax Pin: 6876-91-
4212, “Old Cemetery” No Deed found; thence running with “Old Cemetery” the following two (2)
courses and distances; (1) S 04°19'07" W, 153.20’, to an existing concrete monument, thence (2) N
88°22'13" E, 245.00’ Total to an existing concrete monument, located in the western line of now or
formerly Tax Pin: 6876-90-7814, the Annie S. Greenfield Heirs property, as recorded in Deed Book
769, Page 94; thence running with the Greenfield S 05°02'10" W, 667.75’, to an existing concrete right
of way monument located at the northern margin of the northern right of way of Interstate 40 / US
Highway 421, (a controlled access); thence running with the northern margin of Highway the following
seven (7) courses and distances; (1) along a curve to the right, having a radius of 3668.00’, and a
chord bearing and distance of N 86°41’16” W, 225.28’ to a 3/4” EIP, (2) continuing along a curve to the
right with same radius of 3668.00’, and a chord bearing and distance of, N 83°29’38” W, 183.56’ to a
3/4” EIP, (3) continuing along a curve to the right with same radius of 3668.00’, and a chord bearing
and distance of N 81°05’02” W, 125.00’ to a 3/4” EIP, (4) along a curve to the right having a radius of
883.03’, and a chord bearing and distance of N 66°14’42” W, 385.80’ to a 3/4” EIP, (5) N 48°32’15” W,
356.71’ to an existing concrete r/w monument, (6) N 02°57’46” E, 44.14’ to a 3/4” EIP, and (7) N
26°25’36” E, 8.37’ to a 5/8” rebar in a cedar tree, being the southwest corner of now or formerly Tax
Pin: 6876-81-4041, the Priamax Properties, LLC property as recorded in Deed Book 3469, Page 1906;
thence leaving the highway (and controlled access) running with southern line Primax Properties, LLC
property and falling in the southern line of now or formerly Tax Pin: 6876-81-6000, the Traci R.
Fernandes Henry Trust property as recorded in Deed Book 3189, Page 3120, S 83°29’54” E, crossing a
1/2” rebar at 225.45’, and continuing 128.43’ for a total distance of 353.88’ to a 1/2” rebar located at the
southeast corner of Fernandes; thence continuing with the eastern line of Fernandes, N 05°19’35” E,
313.30’ to a 1/2” rebar in the southern margin of the right of way of South Main Street / NC Highway
150; thence running with the southern margin the following seven courses and distances; (1) N
66°29’00” E, 64.42’ to a 1/2” EIP (2) S 86°55’27” E, 33.51’ (3) S 23°31’00" E, 30.00’ to a point, (4) N
66°29’00" E, 60.00’ to a point, (5) N 05°04’54" W, 31.62’ to a point, (6) N 26°14’26" E, 6.14’ to an
existing concrete right of way monument, and (7) N 66°26’30" E, 316.18’ to the point and place of
beginning. The above description contains 15.639 acres more or less,
SAVE AND EXCEPT: Lot 2 of “Kerners Village Shopping Center”, as recorded in Plat Book 48, Page
89 also known as Tax Pin: 6876-91-3062, the Goodwill Industries of Northwest North Carolina property,
as recorded in Deed Book 2581, Page 715, containing: 30,614 Sq. Ft. or 0.703 acres more or less.
Resulting in a net area of : 14.936 acres more or less, for Tax Pin: 6876-91-1024
All as surveyed by Triad Land Surveying, P.C., on September 05, 2019, and having job #11019-4.