17006_Southern_Apartment_recorded_NBP

2 `~ i
Property Owner: Southern Apartment Group — 49, LLC
Recorded in BooiR9 1k ', Page `
Associated plat recorded in Plat Book U , Page
NOTICE OF BROWNFIELDS PROPERTY
This documentary component of a Notice of Brownfields Property ("Notice"), as well as the plat
component, have been filed this day of dt , 2014 by Southern Apartment Group — 49,
LLC (hereinafter "Prospective Developer").
The Notice concerns contaminated property.
A copy of this Notice certified by the North Carolina Department of Environment and Natural
Resources (hereinafter "DENR") 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 (hereinafter "NCGS"),
Section (hereinafter "§") 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 (hereinafter the
"Brownfields Property") being addressed under the Brownfields Property Reuse Act of 1997, NCGS § 130A,
Article 9, Part 5 (hereinafter the "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 DENR's approval of the Notice or Prospective
Developer's entry into the Brownfields Agreement required by the Act, whichever is later. Pursuant to
NCGS § 130A-310.35(c), the copy of the Notice certified by DENR 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
Prospective Developer's name.
The Brownfields Property is located at the southeast corner of West Morehead and South Summit Avenues
and is comprised of three parcels with tax identification numbers 07325409, 07325410 and 07325S01. The Property
comprises approximately 3.16 acres, was previously used for industrial and commercial purposes and is known to
have contamination in the soil and groundwater. The Prospective Developer has committed itself to redevelop the
Property for no uses other than mixed use high-density residential, retail and office purposes.
The Brownfields Agreement between Prospective Developer and DENR 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 consists of one or more data tables reflecting the concentrations of and other information
regarding the Property's regulated substances and contaminants.
Exhibit B to this Notice is a reduction, to 8 1/2" x 11', of the plat component of this Notice. The
plat shows areas designated by DENR, has been prepared and certified by a professional land surveyor, 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 13 OA-3 10.35(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 DENR (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 DENR shall be understood to include any successor in function. The restrictions are hereby
imposed on the Brownfields Property, and are as follows:
1. No use may be made of the Property other than for mixed use high-density residential, retail and
office purposes. For purposes of this restriction, the following definitions apply:
a. "Mixed-use" refers to development that combines multiple land uses.
b. "High-density residential" refers to use as a multi-unit residential building and related
amenities which can include a swimming pool, and common area, and which specifically excludes single family
homes."
c. "Retail" refers to the sale of goods, food, beverages or services directly to the consumer.
d. "Office" refers to the rendering of business or professional services, which includes a leasing
office.
2. Groundwater at the Property may not be used for any purpose without the prior written approval of
It Z:
3. Soil disturbances must be handled in accordance with an approved Soil Management Plan including
subsequent DENR approved modifications to that plan.
4. None of the contaminants known to be present in the environmental media at the Property above
applicable standards or screening levels, including those listed in Tables A and B or Exhibit B hereto, may be
used or stored at the Property without the prior written approval of DENR, except in de minim is amounts for
cleaning and other routine housekeeping activities.
IA
5. The Property may not be used as an outdoor park for ground contact sports of any kind without the
prior written approval of DENR.
6. The Property may not be used as a playground, or for child care centers or schools without the prior
written approval of DENR.
7. The owner of any portion of the Property where any existing, or subsequently installed, DENR-
approved monitoring well is damaged shall be responsible for repair of any such wells to DENR's written
satisfaction and within a time period acceptable to DENR.
8. Neither DENR, nor any party conducting environmental assessment or remediation at the Property at
the direction of, or pursuant to a permit, order or agreement issued or entered into by DENR, may be denied
access to the Property for purposes of conducting such assessment or remediation, which is to be conducted at
reasonable times using reasonable efforts to minimize interference with authorized uses of the Property, except
regarding hazards DENR deem imminent and situations DENR determine require an emergency response.
9. During January of each year after the year in which this Notice, the owner of any part of the Property
as of January 1st of that year shall submit a notarized Land Use Restrictions Update ("LURU") to DENR, and to
the chief public health and environmental officials of Mecklenburg County, certifying that, as of said January
1 st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the
Mecklenburg County Register of Deeds office and the land use restrictions are being complied with. A joint
LURU may be submitted for multiple owners by a duly constituted board or association, or another entity
approved in advance by DENR. The LURU shall include:
a. 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 (or each of
the owners on whose behalf the joint LURU is submitted) acquired any part of the Property in fee during the
previous calendar year; and
b. the transferee's name, mailing address, telephone and facsimile numbers, and contact person's
e-mail address, if said owner (or each of the owners on whose behalf the joint LURU is submitted) transferred
any part of the Property in fee during the previous calendar year.
10. Any deed or other instrument conveying an interest in the Property executed by an owner of any interest
in the Property shall contain the following notice: "The property which is the subject of this instrument is subject to
the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the
Mecklenburg County land records, Booka 91d4 Page ?3 ." A copy of any such instrument, excluding residential
leases and sales agreements for individual units in multi-unit residential buildings, and retail leases, shall be sent to
the persons listed in Section XV (Notices and Submissions), though financial figures related to the conveyance may
be redacted.
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 DENR
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 DENR (or its successor in
function), or his/her delegate, shall be subject to enforcement by DENR to the full extent of the law. Failure by any
party required or authorized to enforce any of the above restrictions shall in no event be deemed a waiver of the right
to do so thereafter as to the same violation or as to one occurring prior or subsequent thereto.
FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS
When any portion of the Brownfields Property is sold, leased, conveyed or transferred, pursuant to NCGS §
130A-310.35(d) the deed or other instrument of transfer shall contain in the description section, in no smaller type
than that used in the body of the deed or instrument, a statement that the Brownfields Property has been classified
and, if appropriate, cleaned up as a brownfields property under the Brownfields Property Reuse Act.
IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this
day of Q~f , 2014.
S — 49, LLC
C
Shane .S+
Member
NORTH CAROLINA
M k-Lv'gU2G 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:
S h1 i -L.- C
Date: /0 O/y
cial Si ure of Notary
i3f?VERIyPiARCI Carolina
2,~3 ~ 2~rU~o L - Notary Public, North Carolinal Cabarrus County
l _t` My Commission Expires Notary's printed or typed name, Notary Public Dece er 9, 2018 My commission expires: -1 9 —
APPROVAL AND CERTIFICATION OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
The foregoing Notice of Brownfields Property is hereby approved and certified.
North Carolina Department of Environment and Natural Resources
ri
By: "~(/~ .~ CIA S, col
y Lind a M. Culpepper U Date
Deputy Director, Division of Waste Management
CERTIFICATION OF REGISTER OF DEEDS
The foregoing documentary component of the Notice of Brownfields Property, and the associated plat, are
certified to be duly recorded at the date and time, and in the Books and Pages, shown on the first page hereof.
Register of Deeds for 7Y7 County
By: /
e typed or printed: L, . Date
eputy/Assistant Register of Deeds
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EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
IN THE MATTER OF: Southern Apartment Group - 49, LLC
UNDER THE AUTHORITY OF THE BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT Coca-Cola facility
OF 1997, N.C.G.S. § 130A-310.30, et sec . 1331 West Morehead
Brownfields Project # 17006-13-60 Charlotte, Mecklenburg
I. INTRODUCTION
This Brownfields Agreement ("Agreement") is entered into by the North Carolina
Department of Environment and Natural Resources ("DENR") and Southern Apartment Group -
49, LLC (collectively the "Parties") pursuant to the Brownfields Property Reuse Act of 1997,
N.C.G.S. § 130A-310.30, et sew. (the "Act")
Southern Apartment Group — 49, LLC is a North Carolina member-managed limited
liability company. The company's mailing address is 1435 West Morehead St., Suite 130,
Charlotte, NC 28208. This Agreement concerns property located at the corner of West
Morehead and South Summit Avenue, Charlotte, North Carolina. Southern Apartment Group —
49, LLC proposes to use the property for no other uses than mixed use high-density residential,
retail and office purposes. A map showing the location of the property which is the subject of
this Agreement is attached hereto as Exhibit 1.
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 (DENR's Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
potential liability of Southern Apartment Group - 49, LLC for contaminants at the property
Coca-Cola BFA
which is the subject of this Agreement.
The Parties agree that Southern Apartment Group - 49, LLC's entry into this Agreement,
and the actions undertaken by Southern Apartment Group - 49, LLC in accordance with the
Agreement, do not constitute an admission of any liability by Southern Apartment Group - 49,
LLC.
The resolution of this potential liability, in exchange for the benefit Southern Apartment
Group - 49, LLC shall provide to DENR, 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 N.C.G.S. 130A, Article 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
1. "Property" shall mean the Brownfields Property which is the subject of this
Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. "Prospective Developer" shall mean Southern Apartment Group - 49, LLC.
III. STATEMENT OF FACTS
3. The Property comprises approximately 3.16 acres located at 811 and 1331 West
Morehead, and 829 South Summit Avenue having Mecklenburg County parcel numbers
07325409, 07325410 and 07325501. Tax Parcel 07325409 of the Property has a Notice of
Residual Petroleum recorded on May 16, 2003 at Book 15350, Page 232 with the Mecklenburg
County Register of Deeds (the `Notice") and such Notice prohibits the use of groundwater as a
water supply and prohibits the installation of water supply wells. The Property was acquired by
Prospective Developer by deeds recorded in February 11, 2013, in Book 28056, Pages 971-974;
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975-979; and by deed recorded on April 9, 2014 in Book 29101, Pages 781-783 at the
Mecklenburg County Register of Deeds office. Prospective Developer has committed itself to
redevelop, or facilitate the redevelopment of, the Property for no uses other than mixed use high-
density residential, retail and office purposes.
4. The Property is bordered to the north by West Morehead Street beyond which lies
commercial property; to the east by an alley and a parking lot beyond which lies commercial
property, Irwin Creek and Highway 77, to the south by Bryant Street beyond which lies a
commercial property, Irwin Creek and Highway 77; and to the west by South Summit Avenue
beyond which lies commercial property.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the "Environmental Reports," regarding the Property:
Title Prepared by Date of Report
Phase I Environmental Site Assessment ECS Carolinas, LLP May 10, 2012
Report of Phase II Environmental Site ECS Carolinas, LLP May 10, 2012
Assessment — West Morehead Street and
South Summit Avenue
Report of Phase II Environmental Site ECS Carolinas, LLP January 28, 2013
Assessment — West Morehead Street and
South Summit Avenue
Phase I Environmental Site Assessment ECS Carolinas, LLP February 7, 2013
Report
Soil Management Plan - Summit Street ECS Carolinas, LLP September 3, 2013
Apartments
Report of Soil Assessment ECS Carolinas, LLP December 13, 2013
6. For purposes of this Agreement, DENR relies on the following representations by
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Prospective Developer as to use and ownership of the Property:
a. The Property is comprised of three separate parcels and has historically been
developed with multiple different businesses operating concurrently since at least the 1960's.
b. A gasoline station was located on the Property dating back at least to the early
1960's. A Coca-Cola bottling plant operated on the Property dating back at least to the late
1960's and contamination from Coca-Cola's former underground storage tanks is known to exist
on the Property. A mechanical and fabrication company operated on the site in the 1990's and
an automobile service company operated on the Property in 2000's. The Property has most
recently been occupied by an electrical contracting company and two different automobile
service companies.
7. The most recent environmental sampling at the Property reported in the
Environmental Reports occurred on December 13, 2013. The following tables set forth the
contaminants present at the Property above applicable standards or screening levels, the
concentration found at each sample location and the applicable standard or screening level.
Screening levels, groundwater standards and Maximum Contaminant Concentration Levels 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):
Concentration Groundwater Sample Date of Exceeding Standard
Contaminant Location Sampling Standard (µg/L)
(µg/L)
4 Coca-Cola BFA
Tetrachloroeth_ ly ene TW-4 4/26/2012 2.6 0_7
B-3G 1/21/2013 4.9
b. 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 Division of Waste Management Residential Vapor Intrusion
Screening Tables (October, 2013):
Groundwater Sample Date of Concentration Residential VI
Contaminant Location Sampling Exceeding Screening
With Potential for Vapor Screening Level'
Intrusion (VI) Level (µg/L) (µg/L)
1,2,4 Trimethylbenzene TW-2 4/26/2012 14 5.8
Chloroform MW-2 4/26/2012 13 7.3
'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.
b. Soil contaminants in milligrams per kilogram (the equivalent of parts per
million), the screening levels for which are derived from the Guidelines For Site Checks,
Tank Closure, and Initial Response and Abatement for UST Releases (March 1, 2007
version, Change 5, Effective December 1, 2013):
Soil Sample Depth Date of Concentration UST Program
Contaminant Location (ft) Sampling Exceeding
Screening
Maximum Soil
Contaminant
Level (mg/kg) Concentration
(mg/kg)
Diesel Range B-2 1-2 4/26/2012 120 10
TW-5S 10-12 65 Organics
5 Coca-Cola BFA
8. For purposes of this Agreement DENR relies on Prospective Developer's
representations that Prospective Developer's involvement with the Property has been limited to
obtaining or commissioning the Environmental Reports, preparing and submitting to DENR a
Brownfields Property Application on February 7 th, 2013 and purchasing the Property out of
bankruptcy on February 8 th, 2013
9. Prospective Developer has provided DENR with information, or sworn certifications
regarding that information on which DENR 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 N. C. G. S. § 13OA-
310.32(a)(1);
b. as a result of the implementation of this Agreement, the 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 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 Property; and
e. Prospective Developer has complied with all applicable procedural
requirements.
6 Coca-Cola BFA
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 N.C.G.S. §
130A-310.39(a)(1), and, within the meaning of N.C.G.S. § 130A-310.39(a)(2), the full cost to
DENR and the North Carolina Department of Justice of all activities related to this Agreement,
unless a change is sought to a Brownfield 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 Property proposed herein would provide the following
public benefits:
a. a return to productive use of the Property;
b. a spur to additional community redevelopment, through improved
neighborhood appearance and otherwise;
c. the creation of approximately 225 construction and 29 permanent jobs;
d. an increase in tax revenue for affected jurisdictions;
e. additional residential, retail, office space for the area; and
f. "smart growth" through use of land in an already developed area, which avoids
development of land beyond the urban fringe ("greenfields").
V. WORK TO BE PERFORMED
12. Within 30 days after the effective date of this Agreement, Prospective Developer
shall notify DENR that it is ready to effect the abandonment of all groundwater monitoring
wells, injection wells, recovery wells, piezometers and other man-made points of groundwater
access, if any, at the Property in accordance with Subchapter 2C of Title 15A of the North
7 Coca-Cola BFA
Carolina Administrative Code. Unless DENR notifies Prospective Developer within 10 days of
receiving such notification to refrain from such abandonment, Prospective Developer shall, on a
schedule acceptable to DENR, effect said abandonment and, within 30 days after doing so,
provide DENR a report, subject to DENR approval, setting forth the procedures and results.
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
Agreement (DENR's Covenant Not to Sue and Reservation of Rights), DENR is not requiring
Prospective Developer to perform any active remediation at the Property.
14. By way of the Notice of Brownfields Property referenced below in paragraph 19,
Prospective Developer shall impose the following land use restrictions under the Act, running
with the land, to make the 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 DENR shall be understood to include any successor in function.
a. No use may be made of the Property other than for mixed use high-density
residential, retail and office purposes. For purposes of this restriction, the following definitions
apply:
i. "Mixed-use" refers to development that combines multiple land uses.
ii. "High-density residential" refers to use as a multi-unit residential
building and related amenities which can include a swimming pool, and common area, and
which specifically excludes single family homes."
iii. "Retail" refers to the sale of goods, food, beverages or services directly
to the consumer.
8 Coca-Cola BFA
iv. "Office" refers to the rendering of business or professional services,
which includes a leasing office.
b. Groundwater at the Property may not be used for any purpose without the prior
written approval of DENR.
c. Soil disturbances must be handled in accordance with an approved Soil
Management Plan including subsequent DENR approved modifications to that plan.
d. None of the contaminants known to be present in the environmental media at
the Property above applicable standards or screening levels, including those listed in paragraph
7, may be used or stored at the Property without the prior written approval of DENR, except in
de minimis amounts for cleaning and other routine housekeeping activities.
e. The Property may not be used as an outdoor park for ground contact sports of
any kind without the prior written approval of DENR.
f. The Property may not be used as a playground, or for child care centers or
schools without the prior written approval of DENR.
g. The owner of any portion of the Property where any existing, or subsequently
installed, DENR-approved monitoring well is damaged shall be responsible for repair of any
such wells to DENR's written satisfaction and within a time period acceptable to DENR.
h. Neither DENR, nor any party conducting environmental assessment or
remediation at the Property at the direction of, or pursuant to a permit, order or agreement issued
or entered into by DENR, may be denied access to the Property for purposes of conducting such
assessment or remediation, which is to be conducted at reasonable times using reasonable efforts
to minimize interference with authorized uses of the Property, except regarding hazards DENR
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deem imminent and situations DENR determine require an emergency response.
i. During January of each year after the year in which the Notice referenced
below in paragraph 18 is recorded, the owner of any part of the Property as of January l St of that
year shall submit a notarized Land Use Restrictions Update ("LURU") to DENR, and to the chief
public health and environmental officials of Mecklenburg County, certifying that, as of said
January 1 St, the Notice of Brownfields Property containing these land use restrictions remains
recorded at the Mecklenburg County Register of Deeds office and the land use restrictions are
being complied with. A joint LURU may be submitted for multiple owners by a duly constituted
board or association, or another entity approved in advance by DENR. The LURU shall include:
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 (or each of the owners on whose behalf the joint LURU is
submitted) acquired any part of the Property in fee during the previous calendar year; and
ii. the transferee's name, mailing address, telephone and facsimile numbers, and
contact person's e-mail address, if said owner (or each of the owners on whose behalf the joint
LURU is submitted ) transferred any part of the Property in fee during the previous calendar
year.
j. Any deed or other instrument conveying an interest in the Property executed by
an owner of any interest in the Property shall contain the following notice: "The property which
is the subject of this instrument is subject to the Brownfields Agreement attached as Exhibit A to
the Notice of Brownfields Property recorded in the Mecklenburg County land records, Book
vZ 9 1 (o , Page ~7 1 ." A copy of any such instrument, excluding residential leases and sales
10 Coca-Cola BFA
agreements for individual units in multi-unit residential buildings, and retail leases, shall be sent
to the persons listed in Section XV (Notices and Submissions), though financial figures related to
the conveyance may be redacted.
15. The desired result of the above-referenced land use restrictions is to make the
Property suitable for the uses specified in the Agreement while fully protecting public health and
the environment.
16. 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 DENR's Superfund Section, as embodied
in their most current version, unless particular requirements of same are superseded by statute or
regulation, or the parties mutually agree otherwise.
17. The consequence of achieving the desired results will be that the 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
18. In addition to providing access to the Property pursuant to subparagraph 14.i. above,
Prospective Developer shall provide DENR, its authorized officers, employees, representatives,
and all other persons performing response actions under DENR 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 Property under applicable law. While
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Prospective Developer owns the Property, DENR shall provide reasonable notice to Prospective
Developer of the timing of any response actions to be undertaken by or under the oversight of
DENR at the Property. Except as may be set forth in the Agreement, DENR 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.
19. DENR has approved, pursuant to N.C.G.S. § 130A-310.35, a Notice of Brownfields
Property for the 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 Property. Pursuant to
N.C.G.S. § 130A-310.35(b), within 15 days of the effective date of this Agreement Prospective
Developer shall file the Notice of Brownfields Property in the Mecklenburg County, North
Carolina, Register of Deeds' office. Within three (3) days thereafter, Prospective Developer
shall furnish DENR 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.
20. 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 Property shall contain the following notice: "The property which is the subject of
this instrument is subject to the Brownfields Agreement attached as Exhibit A to the Notice of
Brownfields Property recorded in Mecklenburg County land records, Book , Page ." `A
copy of any such instrument, excluding residential leases and sales agreements for individual
units in multi-unit residential buildings, and retail leases, shall be sent to the persons listed in
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Section XV (Notices and Submissions), though financial figures related to the conveyance may
be redacted.
21. The Prospective Developer shall ensure that notice of this Agreement, and a written
offer, approved in advance by DENR, to provide a complete copy of this Agreement if requested,
is provided to any current lessee or sublessee on the Property within seven days of the effective
date of this Agreement and shall ensure that, for so long as it owns or controls the Property and
to the extent it can legally do so, any subsequent leases, subleases, assignments or transfers of
the Property or an interest in the Property are compliant with this Section (Access/Notice To
Successors In Interest), Section V (Work to be Performed) and Section XI (Parties Bound) of this
Agreement.
VII. DUE CARE/COOPERATION
22. The Prospective Developer shall exercise due care at the Property with respect to the
manner in which regulated substances are handled at the 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 Property by DENR, which is to be
conducted using reasonable efforts to minimize interference with authorized uses of the Property,
and further agrees not to interfere with any such 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 Property, the Prospective Developer shall immediately take all
appropriate action to prevent, abate, or minimize such release or threat of release, and shall, in
addition to complying with any applicable notification requirements under N.C.G.S. 130A-310.1
and 143-215.85, and Section 103 of CERCLA, 42 U.S.C. § 9603, or any other law, immediately
13 Coca-Cola BFA
notify DENR of such release or threatened release.
VIII. CERTIFICATION
23. By entering into this Agreement, the Prospective Developer certifies that, without
DENR approval, it will make no use of the Property other than that committed to in this
Agreement. That use is mixed use high-density residential, retail and office purposes.
Prospective Developer also certifies that to the best of its knowledge and belief it has fully and
accurately disclosed to DENR 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 Property and to its qualification for this Agreement, including the requirement that it not
have caused or contributed to the contamination at the Property.
IX. DENR' S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
24. Unless any of the following apply, Prospective Developer shall not be liable to
DENR, and DENR covenants not to sue Prospective Developer, for remediation of the Property
except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the 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 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
14 Coca-Cola BFA
under N.C.G.S. 130A-310.35 is violated while the Prospective Developer owns the Property, in
which case the Prospective Developer shall be responsible for remediation of the 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 Property.
e. New information indicates the existence of previously unreported
contaminants or an area of previously unreported contamination on or associated with the
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 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 Property or (ii) the failure of remediation to mitigate risks to the extent
required to make the Property fully protective of public health and the environment as planned in
this Agreement.
15 Coca-Cola BFA
g. The Department obtains new information about a contaminant associated with
the Property or exposures at or around the Property that raises the risk to public health or the
environment associated with the 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 N.C. G.S. 130A-310.35.
25. Except as may be provided herein, DENR reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act.
26. 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, N.C.G.S. § 113A-1, et sec .
27. Consistent with N.C.G.S. § 130A-310.33, the liability protections provided herein,
and any statutory limitations in paragraphs 24 through 26 above, apply to all of the persons listed
in N. C. G.S. § 130A-310.33, including future owners of the 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
28. In consideration of DENR's Covenant Not To Sue in Section IX of this Agreement
and in recognition of the absolute State immunity provided in N.C.G.S. § 130A-310.37(b), the
Prospective Developer hereby covenants not to sue and not to assert any claims or causes of
action against DENR, its authorized officers, employees, or representatives with respect to any
action implementing the Act, including negotiating, entering, monitoring or enforcing this
16 Coca-Cola BFA
Agreement or the above-referenced Notice of Brownfields Property.
XI. PARTIES BOUND
29. This Agreement shall apply to and be binding upon DENR, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party's signatory to this
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
XII. DISCLAIMER
30. This Agreement in no way constitutes a finding by DENR as to the risks to public
health and the environment which may be posed by regulated substances at the Property, a
representation by DENR that the Property is fit for any particular purpose, nor a waiver of
Prospective Developer's duty to seek applicable permits or of the provisions of N.C.G.S. §
130A-310.37.
31. Except for the Land Use Restrictions set forth in paragraph 14 above and N.C.G.S. §
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
32. The Prospective Developer agrees to retain and make available to DENR all business
and operating records, contracts, site studies and investigations, and documents relating to any
work to be performed pursuant to this Agreement, environmental conditions at the Property, and
compliance with the Land Use Restrictions set forth in paragraph 14 above, for six (6) years
following the effective date of this Agreement, unless otherwise agreed to in writing by the
17 Coca-Cola BFA
Parties. This Agreement shall not be construed to limit any document retention requirements of
any other DENR program under applicable law or rule. At the end of six (6) years, the
Prospective Developer shall notify DENR of the location of such documents and shall provide
DENR with an opportunity to copy any documents at the expense of DENR. To the extent
DENR 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
33. 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 DENR to enforce this Agreement
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
34. Unless otherwise required by DENR 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 DENR:
Brad Atkinson
N.C. Division of Waste Management
Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Shane Seagle
Southern Apartment Group — 49, LLC
1435 West Morehead St., Suite 130
18 Coca-Cola BFA
Charlotte, NC 28208
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
35. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving it, signed, from DENR. Prospective Developer shall sign the Agreement
within seven (7) days following such receipt.
XVII. TERMINATION OF CERTAIN PROVISIONS
36. 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
37. 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 N.C.G.S. § 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 DENR or any other person in relation to the Property.
38. The Prospective Developer agrees that, with respect to any suit or claim for
19 Coca-Cola BFA
contribution brought by it in relation to the subject matter of this Agreement, it will notify DENR
in writing no later than 60 days prior to the initiation of such suit or claim.
39. 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
DENR in writing within 10 days of service of the complaint on it.
XIX. PUBLIC COMMENT
40. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after the last to occur of the following: publication of the approved summary of
the Notice of Intent to Redevelop a Brownfields Property required by N.C.G.S. § 130A-310.34
in a newspaper of general circulation serving the area in which the Property is located,
conspicuous posting of a copy of said summary at the Property, and mailing or delivery of a copy
of the summary to each owner of property contiguous to the Property. After expiration of that
period, or following a public meeting if DENR holds one pursuant to N.C.G.S. § 130A-
310.34(c), DENR 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.
20 Coca-Cola BFA
IT IS SO AGREED:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
By:
Linda 4. Culpepper , Date
Deputy Director, Division of Waste Management
IT IS SO AGREED:
Southern Apartment r p - 49, LLC
By:
Shane Seagle D
Member
21. Coca-Cola BFA
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APRIL 14, 2014

08: 28056 PG: 971

DB: 28056 PC: 975
SURVEY PLAT - EXHIBIT B SH T
vR1 AM i~l,c SCALE: 1' = 60' TO THE NOTICE OF AER o5E18AOLS p8: 3 PC: 540 BROWNFIELDS PROPERTY
CITY OF CHARLOTTE, 11
•8019SOFALLNPRPEMPN15910m0 malls PUNT D 6 OR REENam FIRM UC. # C-0453
CHUCK 100001, PLS #3762 OWNER & PROSPECTIVE DEVELOPER: 2
W N1RE1HEA0 µo ul N~s~ RE F ~ ROBERT DEDMON, PLS #3899 SOUTHERN APARTMENT OF
ERIE 'Y044 PTCYETH11IOROTT00 0 1000IOIS 3704 NC HIGHWAY #16 NORTH MECKLENBURG COUNTY, NC GROUP 49, LLC - P.O. BOX 494 - DENVER, NC 28037
00110 OFI000 0110.1111046 E 07aR0NATE
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PHONE: [phone]UIHE204 APARTMENT CROUP P0040(0 105 1329 E. MOREHEA) ST 07325409 2 JOB# 'TO bIN 1010316015 PR~,7 D 106051611010 FAX: [phone] SURV. BY: RD DRAWN: RD X12WESTMORE CHOEA.OTIt, NO 25205 07325410
PROPERTY ADDRESS: 811 W. MOREHEAD Sr 07325901
STATE CF NORTH CAROLINA
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BEONMNG AT A NAIL IN THE SDEWNI( AT ME NORMEASI MORON 6 BREAM STREET MID 9300
530100 AVEME, SAD 50 0)1140 POINT ®N01.00/TED S 70-46-00 E, 2071' 950.4 A NAIL W A SIEWMJO LOCAE0 AT THE 50 1)0)10 110100 6 BR/ANT 501117 AND 55105 02M14T 400001:
THENCE FROM SID BE(MNNG POW WIM THE ENDED!) MNON 6 S 91001 AVE. N 11-45-00
-Cr 104 NAE N THE 90/WOO. SOLITNEAST 01000N 6 5 3N69 AVE MO 1110 00111000
SHEET; THENCE 5,110 THE 9NIHERN MMON 6 W M.IEHEAD ST. MOIL A 0.10E TO THE LOT, 0TH A 60010) 6 126.111', M ARC 0' 201.08, 0100 BEARING 5 IXORD 05 S 06-02-44 E. 200.00' TO A 5/4" PIPE: Us/ICE 214006 9100 M01000N OF W MOEHEAD ST. MO RLNNG 511(0 M
aD 001001006? S 0110-13 E 12506' TOM IXD 2100: 1.01110. S 06-46-20 E 26.14' TO A /4
R580R, 0010011 6 001002055 MLEYWAY: THENCE RIM A01NIX04ED ALLEYWAY. 01.04G A 0.700E TO
THE LOT, WITH A 000US 0' 40004• M ARC OF 1007'• MD BEARING AND 0100 6 S 70-00-42
W 10.07', TO A /4 HE6•N: THENCE 5 12-51-00 E 166.02' TO A JO RE.VR, 100701 04 THE NCRIH020 NAALTt7 0'9104!00 001 THENCE 1211101141 110401411 041011 6 BRYAM Sf, MOO[ A
0T165 TO THE MINT. WIN A 5)150S 6 1146.02. M ARC 6 10.02', MD 15MN0 MD 01010 0' 5 M-50-Sl W, 311.04' TO A /4 110441 0005501.0000 NNE TO THE MINT, 11TH A MOTS 0'
1146.13', M 000 05 300)1', MO BFMdNG MO 000100'S 00-34-31 W 33154 • 10 (0 NAL:
THENCE N 78-15-00 W. 64.60' ro THE PONT MO PUGS 6 5O0R6 OONWNRC 3150 ACRES,
MOE 00 4004
VIC11II7'Y HAP 1140
• PROPERTY 1110 BE -ECf TO flEW00ED IX ~Dm 11005 *f ""'S °' us"°"r5
01011 TOIFY ML SEIB00ts MD ZWxG ~Ewm~ 0000 00.110 nMxlxc oR
DEDMON SURVEYS
APRIL 14, 2014
SCALE: 1. = 60'
DB: 28056 Pc: 0071
DB: 28056 PG: 975
PB: 3 PG: 540
SURVEY PLAT - EXHIBIT B
TO THE NOTICE OF
BROWNFIELDS PROPERTY
SHEET ;/
(
CITY OF CHARLOTTE,
MECKLENBURG COUNTY, NC
y
W M°
s~
BRrAII
CIS PUT SNW1â IJOf BE YRID ROIm 0011 POi DLS1D+ aR mx9RtgTla 10/20019 A RED NFIR(AT0 0' HL d11BV901S Mro1 Oi-KE
,115 PROPE51100400 0500 10 I. A 100
*1100p'00:20RN00T A -4~4J
FIRM LIC. # C-0453
CHUCK POOVEY, PLS #3762
ROBERT DEDMON, PLS #3899
3704 NC HIGHWAY #15 NORTH
OWNER & PROSPECTIVE DEVELOPER:
SOUTHERN APARTMENT
GROUP - 49, LLC
1
GF
[0011001
'10 00000051.1.400510010 0051 01)001
P.O. BOX 494 - DENVER, NC 28037
PHONE: [phone]
FAX: [phone]
tt 2HEM/ea Gsr P 007325 ID'S
° OTTE• NO 28208 07325410
PROPERTY ADDRESS: ail W. MOREHEAD Sr 07325501
SURV. WY: RD DRAWN: RD JOB #
XS2WES1MORE
Exhibit C
LEGAL DESCRIPTION for Brownfields Property for Southern Apartment Group -49, LLC:
BEGINNING AT A NAIL IN THE SIDEWALK AT THE NORTHEAST MARGIN OF
BRYANT STREET AND SOUTH SUMMIT AVENUE, SAID BEGINNING POINT BEING
LOCATED S 78-46-00 E, 50.22 FROM A NAIL IN A SIDEWALK LOCATED AT THE
NORTHWEST MARGIN OF BRYANT STREET AND SOUTH SUMMIT AVENUE;
THENCE FROM SAID BEGINNING POINT, WITH THE EASTERN MARGIN OF S
SUMMIT AVE, N 11-45-00 E 390.00' TO A NAIL IN THE SIDEWALK, SOUTHEAST
MARGIN OF S SUMMIT AVE AND WEST MOREHEAD STREET; THENCE WITH THE
SOUTHERN MARGIN OF W MOREHEAD ST, ALONG A CURVE TO THE LEFT, WITH A
RADIUS OF 1263.11', AN ARC OF 281.08', AND BEARING & CHORD OF S 86-02-44 E,
280.50' TO A 3/4" PIPE; THENCE LEAVING SAID MARGIN OF W MOREHEAD ST, AND
RUNNING WITH AN OLD ALLEYWAY S 03-10-25 E 195.06' TO AN OLD IRON; THENCE
S 06-46-31 E 26.14' TO A #4 REBAR, CORNER OF ABANDONED ALLEYWAY; THENCE
WITH ABANDONED ALLEYWAY, ALONG A CURVE TO THE LEFT, WITH A RADIUS
OF 490.84, AN ARC OF 10.07', AND BEARING AND CHORD OF S 70-09-42 W, 10.07', TO
A #4 REBAR; THENCE S 12-57-00 E 186.09' TO A #4 REBAR, LOCATED ON THE
NORTHERN MARGIN OF BRYANT ST; THENCE WITH THE NORTHERN MARGIN OF
BRYANT ST, ALONG A CURVE TO THE LEFT, WITH A RADIUS OF 1146.28', AN ARC
OF 10.09', AND BEARING AND CHORD OF S 84-50-51 W, 331.94' TO A #4 REBAR;
THENCE ALONG A CURVE TO THE RIGHT, WITH A RADIUS OF 1146.28', AN ARC OF
333.11', AND BEARING AND CHORD OF N 86-34-31 W, 331.94' TO A NAIL; THENCE N
78-15-00 W, 84.69' TO THE POINT AND PLACE OF BEGINNING, CONTAINING 3.158
ACRES, MORE OR LESS.
Exhibit 1
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