6033_OrbitEnergy_brownfields_20160407

environment;
c. Prospective Developer's reuse of the Prope1iy 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.
10. Prospective Developer has paid to DENR the $2,000 fee to seek a brownfields
agreement required by N.C.G.S. § 130A-310.39(a)(l), and shall make a payment to DENR of
$6,000 at the time Prospective Developer and DENR enter into this Agreement, defined for this
purpose as occurring no later than the last day of the public comment period related to this
Agreement. The Parties agree that such fees will suffice as the $2,000 fee to seek a brownfields
agreement required by N.C.G.S. § 130A-310.39(a)(l), and, within the meaning ofN.C.G.S. §
130A-310.39(a)(2), the full cost to DENR and the N01ih 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 Prope1iy proposed herein would provide the following
public benefits:
a. a return to productive use of the Property; .. ~.,-~: i~·;~'.,"o;,/;-...
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b. a spur to additional community redevelopment, thr~~,~~v ?"§'·.:;1?
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14 . Based on the inf01mation in the Environmental Reports, and subject to imposition of
and compliance with the land use restrictions set f01ih below, and subject to Section IX ofthis
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 other than remediation
that may be required pursuant to a DENR-approved Environmental Management Plan (EMP) or
Living Environmental Management Plan (LEMP) required by this Section.
15. By way of the Notice ofBrownfields 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 Property suitable for the uses specified in this Agreement while fully
protecting public health and the environment. 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 industrial purposes. For
purposes of this restriction, the following definitions apply:
Industrial use means the assembly, fabrication or processing of goods or materials
for commercial purposes.
b. Other than the existing brick building, unless compliance with this Land Use
Restriction is waived in vvriting in advance by DENR in relation to other site buildings, no use of
the Property may occur prior to demolition of other buildings on the Property depicted on the
plat component of the Notice referenced in paragraph 20 below in accordance with applicable
legal requirements, including without limitation those related to lead and asbestos abatement that
are administered by the Health Hazards Control Unit within the Division ofJ~~~~~~-
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c. Physical redevelopment of the Property may not occur other than in accord, as
determined by DENR, with an Environmental Management Plan approved in ·writing by DENR
in advance (and revised to DENR'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 Property, the timing ofredevelopment phases, and addresses health, safety and
environmental issues that may arise from use of the Property during construction or
redevelopment in any other form, including without limitation:
i. soil and water management issues, including without limitation those
resulting from contamination identified in the Environmental Reports;
ii. issues related to potential sources of contamination referenced in
paragraph 7a. above; and
111. contingency plans for addressing newly discovered potential sources
of environmental contamination ( e.g., tanks, drums, septic drain fields).
d. Groundwater at the Property may not be used for any purpose without the prior
written approval of DENR.
e. None of the contaminants known to be present in the environmental media at
the Brovvnfields Property, including those listed on the plat component of this Notice, may be
used or stored at the Brownfields Property without the prior written approval of DENR, except in
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f. The Prope1iy may not be used for agriculture or grazing.
g. The Prope1iy may not be used as a park or for spmis of any kind, including,
but not limited to, golf, football, soccer and baseball, without the prior written approval of
DENR.
h. The Property may not be used as a playground, or for child care centers or
schools.
i. 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, unless
compliance with this Land Use Restriction is waived in writing by DENR in advance.
j. 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 using reasonable efforts to minimize
interference with authorized uses of the Property.
k 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 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
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January 1st, the Notice of Brownfields Property containing these land us~J ~if{,fu'too~;ie . ·~·,1 ·"'.',,;· ." ~ • • 1 <:-,,.-. •• ;;.
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recorded at the Mecklenburg County Register of Deeds office and that the land use restrictions
are being complied with, and stating:
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 Property 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 transferred any part of the Property
during the previous calendar year.
16. 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.
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 ofDENR's Superfund Section, as embodied
in their most current version.
18. The consequence of achieving the desired results will be that the prope1iy 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
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which case Prospective Developer shall be liable for remediation of the areas of the Prope1ty,
remediation of which is required by this Agreement, to the e:>.'ient 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 Prope1ty required
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 Prope1ty 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. ., , ~
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unacceptable at or in the vicinity of the Prope1iy 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 ofremediation to mitigate risks to the extent
required to make the Property fully protective of public health and the environment as planned in
this Agreement.
g. The Department obtains new info1mation 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.
26. Except as may be provided herein, DENR reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act, including those regarding petroleum
m1derground storage tanks pursuant to Part 2A, Article 21A of Chapter 143 of the General
Statutes.
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, N.C.G.S. § l 13A-l, et seq.
28 . Consistent with N.C.G.S. § 130A-310.33, the liability protections provided herein,
and any statutory limitations in paragraphs 25 through 27 above, apply to all of th.Y.JJersons listed
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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 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.
39. The Prospective Developer agrees that, with respect to any suit or claim for
contribution brought by it in relation to the subject matter ofthis Agreement, it will notify DENR
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
DENR in writing within 10 days of service of the complaint on it.
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 to occur of the following: publication of the approved summary of
the Notice oflntent to Redevelop a Brownfields Prope1iy 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 deliYe'.ry•-cifr)~popy (. X'R y :I :) A:•,,;-~,, '0~ ······-· 'l'.:¥• ... :~r.-...
of the summary to each owner of property contiguous to the Property. ~~-l(tillltfJ!'-~~
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