HomeMy WebLinkAbout17003 Moores Chapel Approval to PC package 20170727From:Minnich, Carolyn
To:Alan Davidson; Smith, Justin
Cc:Nicholson, Bruce; Wahl, Tracy; Edwards, Caroline; Liggins, Shirley; Scott, Michael
Subject:17003 Approval to Public Comment Notificaiton
Date:Thursday, July 27, 2017 7:47:36 AM
Attachments:17003 Moores Chapel NI 20170714.docx17003 Moores Chapel NBP 20170725.docx17003 Moores Chapel dBFA 20170725.docx17003 Moores Chapel SNI 20170725.docxMoores_Chapel_Exhibit_2_5-22-2015.docx17003_Moores Chapel PLAT 20150527.pdfOutlookEmoji-1464108492158_PastedImagef71c437d-220f-42f7-9b33-c9f9e3e02fe2.png
Dear Mr. Alan Davidson:
Based on acceptance by the Prospective Developer of drafts of all four required brownfields
documents -- the Notice of Intent to Redevelop a Brownfields Property (NI), Summary ofNotice of Intent to Redevelop a Brownfields Property (SNI), Notice of Brownfields Property
(NBP) and the Brownfields Agreement (Exhibit A to the NBP) -- and DEQ's approval of theplat component of the NBP, Prospective Developer may now proceed to the tasks required by
NCGS § 130.310.34(a) in connection with the required public notice and comment period of atleast 30 days regarding the subject brownfields project. Those tasks are as follows:
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1. Publish the approved SNI in a newspaper of general circulation serving the area in whichthe brownfields property is located,
2. Conspicuously post a copy of the SNI at the brownfields property,
3. Mail or deliver the SNI to each owner of property contiguous to the brownfields property,
4. Provide a copy of the full NI to the local location where it will be available for publicreview as stated in the SNI, and
5. Provide a copy of the full NI, consisting of the one-page NI and the NBP with its threeexhibits (the Brownfields Agreement, the survey plat, and the legal description), to all local
governments having jurisdiction over the brownfields property.
Pursuant to NCGS § 130.310.34.(b), the public comment period shall begin following
completion of the above tasks. The NI and SNI, with a date filled in representing our beliefas to how long it will take you to complete those tasks by Tuesday, August 1, 2017, are
attached hereto. The comment period shall not end any sooner than 30 days after youcomplete the tasks.
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NCGS § 130.310.34(b) also requires the Prospective Developer to submit documentation ofthe public notices to DEQ prior to DEQ entering into a Brownfields Agreement. That
documentation shall be submitted by promptly providing to me, preferably atcarolyn.minnich@ncdenr.gov or at Brownfields Program, 1646 Mail Service Center, Raleigh,
NC 27699-1646, the following:
Affidavit of publication of the SNI from the newspaper or a copy of the SNI published
in the newspaper which shows the name of the newspaper and the date of publication,
Photos of the SNI posted at the site, one close up to show the wording and one far
enough to show the posting location relative to the property,
Copies of the cover letters and copies of the mailing receipts stamped by the post office
or copies of the delivery service receipts for the SNI sent to contiguous property owners,
A letter confirming receipt of the full NI from each local government entity and the
entity where the document will be available for viewing or delivery confirmation from
the carrier confirming such receipt by these entities.
Thank you for your attention to these matters. If you have any questions or require additional
information, you may contact me.
Carolyn Minnich
Brownfields Project Manager
Division of Waste Management
Department of Environmental Quality
704 661 0330 office/mobile
Carolyn.Minnich@ncdenr.gov
1646 Mail Service Center
Raleigh, NC 27699-1646
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
17003-13-060/Moores Chapel Redevelopment (Draft 20170714)
1
NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Site Name: Moores Chapel Redevelopment Brownfields Project Number: 17003-13-060
North Carolina’s Brownfields Property Reuse Act (the “Act”), North Carolina General Statutes
(“NCGS”) § 130A-310.30 through 130A-310.40, provides for the safe redevelopment of properties that may
have been or were contaminated by past industrial and commercial activities. One of the Act’s
requirements is this Notice of Intent to Redevelop a Brownfields Property approved by the North Carolina
Department of Environmental Quality (“DEQ”). See NCGS § 130A-310.34(a). The Notice of Intent must
provide, to the extent known, a legal description of the location of the brownfields property, a map showing
the location of the Brownfields Property, a description of the contaminants involved and their
concentrations in the media of the Brownfields Property, a description of the intended future use of the
Brownfields Property, any proposed investigation and remediation, and a proposed Notice of Brownfields
Property prepared in accordance with NCGS § 130A-310.35. The party (”Prospective Developer”) who
desires to enter into a Brownfields Agreement with DEQ must provide a copy of this Notice to all local
governments having jurisdiction over the Brownfields Property. The proposed Notice of Brownfields
Property for a particular brownfields project is attached hereto; the proposed Brownfields Agreement,
which is attached to the proposed Notice of Brownfields Property as Exhibit A, contains the other required
elements of this Notice. Written public comments may be submitted to DEQ within 30 days after the latest
of the following dates: the date the required summary of this Notice is (1) published in a newspaper of
general circulation serving the area in which the Brownfields Property is located, (2) conspicuously posted
at the Brownfields Property, and (3) mailed or delivered to each owner of property contiguous to the
Brownfields Property. Written requests for a public meeting may be submitted to DEQ within 21 days
after the period for written public comments begins. Those periods will start no sooner than Tuesday,
August 1, 2017, and will end on the later of: a) 30 and 21 days, respectively, after that; or b) 30 and 21
days, respectively, after completion of the latest of the three (3) above-referenced dates. All comments and
meeting requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager Division of Waste Management NC Department of Environmental Quality
1646 Mail Service Center
Raleigh, North Carolina 27699-1646
17003-13-060/Moores Chapel Redevelopment (draft 20170725)
SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY Site Name: Moores Chapel Redevelopment Brownfields Project Number: 17003-13-060
Pursuant to NCGS § 130A-310.34, Davidson Transportation Marketing, Inc. as Prospective
Developer, has filed with the North Carolina Department of Environmental Quality (“DEQ”) a Notice
of Intent to Redevelop a Brownfields Property (“Property”) in Charlotte, Mecklenburg County, North
Carolina. The Property, which is the former site of Consolidated Warehouse and former Thrift Mill,
consists of 15.841 acres. Environmental contamination exists on the Property in soil, groundwater, and
vapor. Davidson Transportation Marketing, Inc has committed itself multi-residential, office, retail,
industrial, parking, and, if DENR issues prior written approval, other commercial uses. The immediate
redevelopment plans are for industrial use. The Notice of Intent to Redevelop a Brownfields Property
includes: (1) a proposed Brownfields Agreement between DEQ and Davidson Transportation
Marketing, Inc. which in turn includes (a) a map showing the location of the Property, (b) a description
of the contaminants involved and their concentrations in the media of the Property, (c) the above-stated
description of the intended future use of the Brownfields Property, and (d) proposed investigation and
remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with NCGS §
130A-310.35.
The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the
Charlotte-Mecklenburg Public Library, Robinson-Spangler Carolina Room, 310 North Tryon Street,
Charlotte, NC 28202, (704) 416-0150; or at the offices of the N.C. Brownfields Program, 217 West
Jones Street, Raleigh, NC or by contacting Shirley Liggins at that address, at
shirley.liggins@ncdenr.gov, or at (919) 707-8383.
Written public comments may be submitted to DEQ within 30 days after the latest of the following
dates: the date this Notice is (1) published in a newspaper of general circulation serving the area in
which the Brownfields Property is located, (2) conspicuously posted at the Brownfields Property, and
(3) mailed or delivered to each owner of property contiguous to the Brownfields Property. Written
requests for a public meeting may be submitted to DEQ within 21 days after the period for written
public comments begins. Those periods will start no sooner than Tuesday, August 1, 2017, and will
end on the later of: a) 30 and 21 days, respectively, after that; or b) 30 and 21 days, respectively, after
completion of the latest of the three (3) above-referenced dates. All public comments and public
meeting requests should be addressed as follows:
Mr. Bruce Nicholson Brownfields Program Manager
Division of Waste Management
NC Department of Environmental Quality
1646 Mail Service Center
Raleigh, North Carolina 27699-1646
17003/Moores Chapel (Draft 20170725)) 1
Property Owner: Recorded in Book ____, Page ____
Associated plat recorded in Plat Book ____, Page ____
NOTICE OF BROWNFIELDS PROPERTY
Site Name: Moores Chapel Redevelopment Brownfields Project Number: 17003-13-060
This documentary component of a Notice of Brownfields Property (“Notice”), as well as the plat
component, have been filed this _____ day of __________________, 201__ by Davidson Transportation
Marketing, Inc (“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 8300 Moore’s Chapel Road and was the former Thrift Mill. The Brownfields Property is approximately 15 acres. Environmental contamination exists in soil, groundwater, and vapor from historical operations. Davidson Transportation Marketing, Inc has committed itself to multi-
residential, office, retail, industrial, parking, and, if DEQ issues prior written approval, other commercial
purposes. The immediate redevelopment plans are for industrial use. The property is surrounded by land in
commercial, retail, and residential uses.
The Brownfields Agreement between Prospective Developer and DEQ is attached hereto as
17003-13-060/Moores Chapel Redevelopment (draft 20170720) 2
Exhibit A. It sets forth the use that may be made of the Brownfields Property and the measures to be taken to protect public health and the environment, and is required by NCGS § 130A-310.32. The
Brownfields Agreement’s Exhibit 2 consists of one or more data tables reflecting the concentrations of
and other information regarding the Property’s regulated substances and contaminants.
Attached as Exhibit B to this Notice is a reduction, to 8 1/2" x 11", of the survey plat component
of this Notice. This plat shows areas designated by DEQ, has been prepared and certified by a
professional land surveyor, meets the requirements of NCGS § 47-30, and complies with NCGS §
130A-310.35(a)’s requirement that the Notice identify:
(1) The location and dimensions of the areas of potential environmental concern with respect to
permanently surveyed benchmarks.
(2) The type, location and quantity of regulated substances and contaminants known to exist on the Brownfields Property.
Attached hereto as Exhibit C is a legal description of the Brownfields Property that would be sufficient
as a description of the property in an instrument of conveyance.
LAND USE RESTRICTIONS
NCGS § 130A-310.35(a) also requires that the Notice identify any restrictions on the current and future
use of the Brownfields Property that are necessary or useful to maintain the level of protection appropriate for
the designated current or future use of the Brownfields Property and that are designated in the Brownfields Agreement. The restrictions shall remain in force in perpetuity unless canceled by the Secretary of DEQ
(or its successor in function), or his/her designee, after the hazards have been eliminated, pursuant to NCGS § 130A-310.35(e). All references to DEQ shall be understood to include any successor in function.
The restrictions are hereby imposed on the Brownfields Property, and are as follows:
1. No use may be made of the Brownfields Property other than for multi-residential, office, retail,
industrial, parking, and, if DEQ issues prior written approval, other commercial purposes. For purposes of this
restriction, the following definitions apply
a. “Multi-family residential” defined as multi-unit human dwellings, such as condominia, or
apartments. Single family homes, townhomes, duplexes, or other units with yards are prohibited unless approved in writing by DEQ in advance.
b. “Office” refers to the rendering of business or professional services.
c. “Retail” refers to the sale of goods or services directly to the consumer or businesses and
includes showrooms, personal service, restaurants, and bars.
d. “Industrial” refers to the assembly, fabrication, processing, storage, warehousing, distribution of goods or materials, manufacturing, truck distribution centers, truck and vehicle repair or garage, wood
working ships, construction companies, or other industrial purposes.
e. “Parking” refers to the accommodation and storage of motor vehicles in an area designed for
the same.
17003-13-060/Moores Chapel Redevelopment (draft 20170720) 3
f. “Commercial” refers to a business enterprise. Child care centers or adult care centers are
prohibited.
2. Groundwater and surface water at the Brownfields Property may not be used for any purpose, other
than in connection with legally compliant storm water collection and reuse techniques, without the prior written approval of DEQ.
3. No activity that disturbs soil on the Brownfields Property in the “Area of Possible Soil
Contamination” as delineated on the plat component of the Notice, 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 Land Use Restriction No. 1 while fully protecting public health and the environment, except:
a. in connection with landscape planting to depths not exceeding 24”;
b. mowing and pruning of above-ground vegetation;
c. 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;
d. in connection to work conducted in accordance with a DEQ-approved Environmental
Management Plan (EMP) as outlined in Land Use Restriction No. 6.
4. In the “Area of Possible Vapor Contamination”, defined as those depicted on the plat component of the Notice, may not be occupied until DEQ determines in writing that:
a. the building is or would be protective of the building’s users, public health and the
environment from risk of vapor intrusion based on site assessment data or a site-specific risk assessment
approved in writing by DEQ; or
b. 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
c. 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.
5. No building may be constructed on the Brownfields Property and no existing building, defined as those depicted on the plat component of the Notice, may be changed to residential use until:
a. DEQ determines in writing, in advance, based on submittals from the building’s proponent,
that the building would be sufficiently distant from the Brownfields Property’s groundwater and/or soil
17003-13-060/Moores Chapel Redevelopment (draft 20170720) 4
contamination that the building’s users, public health and the environment will be protected from risk from
vapor intrusion related to said contamination;
b. vapor mitigation measures are installed 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. All vapor mitigation
measures shall be installed or implemented in accordance with a plan approved in writing by DEQ in advance,
including methodology(ies) for demonstrating performance of said measures.
6. Physical redevelopment of the Brownfields Property may not occur other than in accord, as
determined by DEQ, with an Environmental Management Plan (“EMP”) approved in writing by DEQ in advance (and revised to DEQ’s written satisfaction prior to each subsequent redevelopment phase) that is
consistent with all the other land use restrictions and describes redevelopment activities at the Brownfields
Property, the timing of redevelopment phases, and addresses health, safety and environmental issues that may
arise from use of the Brownfields Property during construction or redevelopment in any other form, including
without limitation:
a. soil and water management issues, including without limitation those resulting from
contamination identified in the Environmental Reports;
b. issues related to potential sources of contamination referenced in Exhibit A paragraphs 7 & 8
c. 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
d. plans for the proper characterization of, and, as necessary, disposal of contaminated soils
excavated during redevelopment;
7. None of the contaminants known to be present in the environmental media at the Brownfields
Property, including those listed in Exhibit 2 to this Agreement, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except in de minimis amounts for: cleaning, other routine
housekeeping, and vehicle maintenance and service in compliance with applicable law, though vehicle parts and
tools may not be washed in solvents containing any contaminants known to be present in the environmental
media at the Brownfields Property. The owner shall ensure that any leases for the storage space or yard space
contain a provision that prohibits the storage of tetrachloroethylene, trichloroethylene, cis 1,2-dichloroethylene, 1,1-dichloroethylene, 1,1-dichloroethane, and 1,1,1-trichloroethane.
8. 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.
9. 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.
17003-13-060/Moores Chapel Redevelopment (draft 20170720) 5
10. Any deed or other instrument conveying an interest in the Brownfields Property shall contain the
following notice: “This property is subject to the Brownfields Agreement attached as Exhibit A to the Notice of
Brownfields Property recorded in the Mecklenburg County land records, Book ____, Page ____.” A copy of
any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though financial figures and other confidential information related to the conveyance may be redacted to the extent said
redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records
Law. The owner may use the following mechanisms to comply with the obligations of this paragraph: (i) If
every lease and rider is identical in form, the owner conveying an interest may provide DEQ with copies of a
form lease or rider evidencing compliance with this paragraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notice and Submissions); or (ii) The owner conveying an interest
may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV.
11. During January of each year after the year in which the Notice is recorded, the owner of any part of
the Brownfields Property as of January 1st of that year shall submit a notarized Land Use Restrictions Update
(“LURU”) to DEQ, and to the chief public health and environmental officials of Mecklenburg County (A joint LURU may be submitted for multiple owners by a duly constituted board, association or other entity approved in advance by DEQ), certifying that, as of said January 1st, the Notice of Brownfields Property containing these
land use restrictions remains recorded at the Mecklenburg County Register of Deeds office and that the land use
restrictions are being complied with, and stating:
a. 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 (for properties covered under a joint LURU, this portion is not required); and
b. 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 (for properties covered under a joint LURU, this portion is not required).
c. whether any vapor mitigation measures implemented pursuant to Land Use Restriction No. 4
and 5 are performing as designed, and whether the uses of the ground floors of any buildings containing such
vapor mitigation measures have changed, and if so, how.
d. A LURU submitted for rental units shall include the rent roll and enough of each lease entered
into during the previous calendar year to demonstrate compliance with lessee notification requirements in Exhibit A in paragraphs 20 and 21 of this agreement provided that if standard form leases are used in every
instance, a copy of such standard form lease may be sent in lieu of copies of actual leases.
For purposes of the land use restrictions set forth above, the DEQ point of contact shall be the DEQ
official referenced in paragraph 34.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
17003-13-060/Moores Chapel Redevelopment (draft 20170720) 6
protection if the restrictions are violated. Any attempt to cancel any or all of this Notice without the approval of
the Secretary of DEQ (or its successor in function), or his/her delegate, shall be subject to enforcement by DEQ
to the full extent of the law. Failure by any party required or authorized to enforce any of the above restrictions
shall in no event be deemed a waiver of the right to do so thereafter as to the same violation or as to one occurring prior or subsequent thereto.
FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS
When any portion of the Brownfields Property is sold, leased, conveyed or transferred, pursuant to NCGS § 130A-310.35(d) the deed or other instrument of transfer shall contain in the description section, in no smaller type than that used in the body of the deed or instrument, a statement that the Brownfields Property has
been classified and, if appropriate, cleaned up as a brownfields property under the Brownfields Property Reuse
Act.
IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this _____ day of _______________, 201__.
Davidson Transportation Marketing, Inc. By: __________________________________________
Alan E. Davidson
President
State of _________________________
_______________ 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
___________________________________
Notary’s printed or typed name, Notary Public
(Official Seal) My commission expires: _____________________
17003-13-060/Moores Chapel Redevelopment (draft 20170720) 7
************************************
ACKNOWLEDGMENT OF PROPERTY OWNER
As the current owner, or representative of said owner, of at least part of the Brownfields Property, I hereby acknowledge recordation of this Notice of Brownfields Property and the Land Use Restrictions contained herein.
[Name of Owner]
By: ______________________________
_______________
________________________
Name typed or printed: ___________________________ Date 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
___________________________________ Notary’s printed or typed name, Notary Public
(Official Seal) My commission expires: _____________________
17003-13-060/Moores Chapel Redevelopment (draft 20170720) 8
************************************
APPROVAL AND CERTIFICATION OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY
The foregoing Notice of Brownfields Property is hereby approved and certified.
North Carolina Department of Environmental Quality
By: _________________________________________ ________________________ Michael E. Scott Date Director, Division of Waste Management
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EXHIBIT A
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: Davidson Transportation Marketing Inc.
UNDER THE AUTHORITY OF THE ) BROWNFIELDS AGREEMENT re:
BROWNFIELDS PROPERTY REUSE ACT ) Moores Chapel Redevelopment Project OF 1997, NCGS § 130A-310.30, et seq. ) 8300 Moores Chapel Road
Brownfields Project #17003-13-060 ) Charlotte, Mecklenburg
I. INTRODUCTION
This Brownfields Agreement (“Agreement”) is entered into by the North Carolina
Department of Environmental Quality (“DEQ”) and Davidson Transportation Marketing, Inc.
(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 8300 Moores Chapel Road,
Charlotte, Mecklenburg County (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.
Davidson Transportation Marketing, Inc., a North Carolina limited liability company that
was formed on January 16, 2014. The registered agent is Lucas Davidson and the business
address is 4390 Stacks Road, Atlanta, Georgia, 30349-2756. The Brownfields Property
comprises approximately 15-acre parcel that is the site of the former Thrift Mill. The address is
8300 Moore’s Chapel Road in Charlotte, North Carolina (Mecklenburg County Tax Parcel
Identification Number 05501103). Redevelopment plans for the property include: multi-family
residential, office, retail, industrial, parking, and, if DEQ issues prior written approval, other
commercial uses. The immediate redevelopment plans include industrial use. The Brownfields
Property is surrounded by land in commercial, retail, and residential uses. Soil, groundwater,
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17003-13-060/Moores Chapel Redevelopment (draft 20170725)
and soil vapor gas on the property are contaminated due to historical operations.
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 Davidson Transportation Marketing, Inc for contaminants at the Brownfields
Property.
The Parties agree that Davidson Transportation Marketing, Inc’s entry into this
Agreement, and the actions undertaken by Davidson Transportation Marketing, Inc in
accordance with the Agreement, do not constitute an admission of any liability by Davidson
Transportation Marketing, Inc for contaminants at the Brownfields Property. The resolution of
this potential liability, in exchange for the benefit Davidson Transportation Marketing, Inc 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 Davidson Transportation Marketing, Inc.
III. STATEMENT OF FACTS
3. The Property comprises approximately 15.841 acres. Prospective Developer has
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17003-13-060/Moores Chapel Redevelopment (draft 20170725)
committed itself to redevelopment for no uses other than multi-residential, office, retail,
industrial, parking, and, if DEQ issues prior written approval, other commercial purposes. The
immediate redevelopment plans are for industrial use.
4. The Property is bordered to the north by railroad tracks and the Plantation Pipeline
Terminal with woodland beyond, to the south by Moore’s Chapel Road and land in commercial
and industrial use, to the east by residence and industrial use beyond, and to the west by
Hammond Street, Glassgow Road, and residential use beyond.
5. The following reports regarding the Property, referred to hereinafter as the
“Environmental Reports,” have been provided to DEQ by Warehouse Investor, LLC:
Title Prepared by Date of Report
Limited Phase II ESA S&ME June 2012
Phase I ESA S&ME June 30, 2011
Site Specific Sampling & Analysis Plan S&ME December 21, 2011
DEHNR Site Inspection Document DEHNR & Others 1997
DEHNR Expanded Site Inspection DEHNR DWM July 1997
DEHNR Site Inspection Consolidated Warehouse NCD
130 708 126
DEHNR DWM January 1995
DEHNR Site Inspection Old Mount Holly Road PCE Site NCD 986 172 518 DEHNR DWM September 30, 1994
Preliminary Assessment Report DEHNR SWM, Superfund February 1994
HDR Preliminary Environmental Assessment for Real
Estate Transaction
HDR Engineering, Inc. of
North Carolina
October 1989
6. For purposes of this Agreement, DEQ relies on the following representations by
Warehouse Investors, LLC and Prospective Developer, and DWM files as to use and ownership
of the Brownfields Property:
a. Prior to 1912, the land was undeveloped woodland. In 1912, Thayer
Manufacturing Company purchased the Property and erected a mill, weave shed, warehouse, and
pump house.
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b. In 1913, Thrift Mill Company purchased the Property. Operations included
various textiles manufacturing process. The mill name changed several times from 1913-1980.
c. In 1924, Henry Kendall purchased the Property from Thrift Manufacturing.
From 1924-1958, the primary activity at the site was conversion of bailed cotton into grey cloth
or unbleached, unfinished cotton.
d. In 1958 Kendall Company sold the mill to Allen Knitting Mills. Allen
Knitting Mills operated three divisions: Standard Textile Mills, Thrift Dye Works, and United
Bonding Company. Standard Textile Mills was the knitting mill, the Thrift Dye Works was
located in the dye house, and the United Bonding Company also operated on the premises.
e. In 1973, Allen Knitting Mills transferred ownership to Standard Textile Mills.
At that time, the knitting and bonding mills closed and only the dye works remained. In 1980,
Standard Textile Mill borrowed 1.85 million dollars for upgrades on the mill operations, but was
unable to repay the loan and the Property was auctioned off.
f. In October 1981, at a public auction, the Property was sold to Economic
Development Administrations (U.S. Department of Commerce).
g. In 1982, Donrick Trade Center purchased the Property and operated a flea
market and auction house on the Property. During this ownership, a portion of the building was
rented to FloorTech, Inc. as a lessess tenant. FloorTech Inc. operated on the Property from 1984
through 1986.
h. In October 1989, Warehouse Investors, LLC purchased the Property. It is
currently used for warehouse storage, truck terminal, offices, bailing operation, and wood
workshop. Portions of the buildings are vacant and most are underused.
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i. There is one small outparcel within the Brownfields Property not included in this
Agreement, consisting of property owned by Marlway LTD Partnership, containing
approximately 0.08 acres and a water tower. This parcel is denoted on the plat component of the
Notice of Brownfields Property referenced below in paragraph 19.
7. Pertinent environmental information regarding the Brownfields Property and
surrounding area includes the following:
a. Historical mill operations on the Property used chlorinated solvents. Based on
the environmental reports, drums of tetrachloroethylene and trichloroethylene were used and
rinsed in wash house. The wastewater was discharged to two lagoons that are not associated
with the Brownfields Property, but were part of historical mill operations. The groundwater is
impacted on the Property.
b. From 1986-1987, Floortech operated on the Property. They were listed as a
small hazardous waste generator.
c. On the Property, several warehouse tenants have received Notices of
Violations (NOVs) from NC Hazardous Waste Section and Mecklenburg County Department of
Environmental Protections (MCDEP) for storage of hazardous and soil wastes.
d. In 1994, the Property was listed on the IHSB Inventory as Consolidated
Warehouse. The site was assigned NCD 130-708-126 and Groundwater Incident No. 06105. In
July 1997, CERCLA recommended No Further Action (NFA) for the incident.
e. In January 1995, Lubrichem Environmental and Atlantic Warehouse were
issued violations for oil discharge on the ground surface on the west side of the Property. They
were issued a violation for storage of hazardous and soil waste. Waste solvent from laboratory
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was stored on-site in drums improperly.
f. There are three (3) underground storage tanks (USTs) on the Property. One
10,000-gallon and two 20,000-gallon USTs; they were reportedly used to store Fuel Oil No. 6.
The USTs have not been operated by current owner and currently contain solid sludge like
material of Fuel Oil #6. One UST is within the Duke Power parcel. Additional assessment will
be required once the USTs are removed.
g. In 2011, the current owner, applied to the City of Charlotte Brownfields
Assessment Grant Program. Soil, groundwater, and vapor assessment activities were completed
to aid in the redevelopment of the Property.
8. Pertinent environmental information regarding the Property indicates that soil,
groundwater, and vapor are impacted due to historical operations.
a. Soil has elevated levels of arsenic but they are within acceptable naturally
ranges for the area. In addition, tetrachloroethylene was detected in one sample along former
trench line between the warehouse and lagoon. This area is address in Land Use Restriction
Number below subparagraph 14.c.
b. The groundwater investigation activities at the Property reflect the presence of
volatile organic compounds and metals, including: trichloroethylene, tetrachloroethylene, cis-
1,2-dichloroethylene; 1,1,1-trichloroethane, 1,1-dichloroethane, chromium and manganese, in
excess of the standards in Title 15A of the North Carolina Administrative Code, Subchapter 2L.
The metals are considered to be naturally occurring based on detected soil levels in background
samples.
c. Sub-slab vapor samples were collected in a portion of the warehouse. Samples
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reported levels that were above Industrial Screening levels near the dye pits. Additional
assessment or engineering controls are required and addressed in Land Use Restriction Number
below subparagraph 14.d and e.
d. One or more data tables reflecting the concentrations of and other information
regarding the Property’s contaminants appear in Exhibit 2 to this Agreement. Screening levels
and groundwater standard are shown for reference only and are not set forth as cleanup levels for
the purposes of this Agreement.
9. For purposes of this Agreement DEQ relies on Prospective Developer’s
representations that Prospective Developer's involvement with the Property has been limited to
preparing and submitting to DEQ a Brownfields Property Application (BPA). In January 2013,
Warehouse Investors, LLC submitted a Ready for Reuse Brownfields Property Application as a
Proxy Prospective Developer to start the brownfields process. In June 29, 2017, Prospective
Developer contracted to purchase the Brownfields Property. A revised BPA was submitted on
June 29, 2017 by the Prospective Developer
10. Warehouse Investors, LLC and 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
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will be suitable for the uses specified in the Agreement while fully protecting public health and
the environment;
c. Prospective Developer's reuse of the Brownfields Property will produce a
public benefit commensurate with the liability protection provided Prospective Developer
hereunder;
d. Prospective Developer has or can obtain the financial, managerial and
technical means to fully implement this Agreement and assure the safe use of the Brownfields
Property; and
e. Prospective Developer has complied with all applicable procedural
requirements.
11. On behalf of the Prospective Developer, Warehouse Investors, LLC, has paid to
DEQ the $7,500 fee to seek a brownfields agreement required by NCGS § 130A-310.39(a)(1),
and paid the second payment to DEQ of $7,500 to enter into this Agreement, defined for this
purpose as occurring no later than the last day of the public comment period related to this
Agreement. The Parties agree that such fees will suffice as the $2,000 fee to seek a brownfields
agreement required by NCGS § 130A-310.39(a)(1), and, within the meaning of NCGS § 130A-
310.39(a)(2), the full cost to DEQ and the North Carolina Department of Justice of all activities
related to this Agreement, unless a change is sought to a Brownfields document after it is in
effect, in which case there shall be an additional fee of at least $1,000.
IV. BENEFIT TO COMMUNITY
12. The redevelopment of the Brownfields Property proposed herein would provide the
following public benefits:
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a. an increase in the Property’s productivity;
b. a spur to additional community investment and redevelopment, through
improved neighborhood utilization appearance and otherwise;
c. the creation of additional jobs both during redevelopment and normal
operations;
d. an increase in tax revenue for affected jurisdictions;
e. additional mixed use 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
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 (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. 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 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 multi-
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residential, office, retail, industrial, parking, and, if DEQ issues prior written approval, other
commercial purposes. For purposes of this restriction, the following definitions apply
i. “Multi-family residential” defined as multi-unit human dwellings, such
as condominia, or apartments. Single family homes, townhomes, duplexes, or other units with
yards are prohibited unless approved in writing by DEQ in advance.
ii. “Office” refers to the rendering of business or professional services.
iii. “Retail” refers to the sale of goods or services directly to the consumer
or businesses and includes showrooms, personal service, restaurants, and bars.
iv. “Industrial” refers to the assembly, fabrication, processing, storage,
warehousing, distribution of goods or materials, manufacturing, truck distribution centers, truck
and vehicle repair or garage, wood working ships, construction companies, or other industrial
purposes.
v. “Parking” refers to the accommodation and storage of motor vehicles in
an area designed for the same.
vi. “Commercial” refers to a business enterprise. Child care centers or
adult care centers are prohibited.
b. Groundwater and surface water at the Brownfields Property may not be used
for any purpose, other than in connection with legally compliant storm water collection and reuse
techniques, without the prior written approval of DEQ.
c. No activity that disturbs soil on the Brownfields Property in the “Area of
Possible Soil Contamination” as delineated on the plat component of the Notice of Brownfields
Property referenced below in paragraph 19, may occur unless and until DEQ states in writing, in
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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 14.a above while fully protecting public health and the environment,
except:
i. in connection with landscape planting to depths not exceeding 24”;
ii. mowing and pruning of above-ground vegetation;
iii. for repair of underground infrastructure, provided that DEQ shall be given
written notice at least seven days in advance of a scheduled repair (if only by email) of any such
repair, or in emergency circumstances no later than the next business day, and that any related
assessment and remedial measures required by DEQ shall be taken and;
iv. in connection to work conducted in accordance with a DEQ-approved
Environmental Management Plan (EMP) as outlined in subparagraph 14.f.
d. In the “Area of Possible Vapor Contamination”, defined as those depicted on
the plat component of the Notice of Brownfields Property referenced in paragraph 19 below,
may not be occupied until DEQ determines in writing that:
i. the building is or would be protective of the building’s users, public
health and the environment from risk of vapor intrusion based on site assessment data or a site-
specific risk assessment approved in writing by DEQ; 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
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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.
e. No 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 19 below, may be changed to residential use until:
i. DEQ determines in writing, in advance, based on submittals from the
building’s proponent, that the building would be sufficiently distant from the Brownfields
Property’s groundwater and/or soil contamination that the building’s users, public health and the
environment will be protected from risk from vapor intrusion related to said contamination;
ii. vapor mitigation measures are installed 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. All vapor mitigation measures shall be installed
or implemented in accordance with a plan approved in writing by DEQ in advance, including
methodology(ies) for demonstrating performance of said measures.
f. Physical redevelopment of the Brownfields Property may not occur other than
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in accord, as determined by DEQ, with an Environmental Management Plan (“EMP”) approved
in writing by DEQ in advance (and revised to DEQ’s written satisfaction prior to each
subsequent redevelopment phase) that is consistent with all the other land use restrictions and
describes redevelopment activities at the Brownfields Property, the timing of redevelopment
phases, and addresses health, safety and environmental issues that may arise from use of the
Brownfields Property during construction or redevelopment in any other form, including without
limitation:
i. soil and water management issues, including without limitation those
resulting from contamination identified in the Environmental Reports;
ii. issues related to potential sources of contamination referenced in
paragraphs 7 and 8 above
iii. contingency plans for addressing, including without limitation the
testing of soil and groundwater, newly discovered potential sources of environmental
contamination (e.g., USTs, tanks, drums, septic drain fields, oil-water separators, soil
contamination); and
iv. plans for the proper characterization of, and, as necessary, disposal of
contaminated soils excavated during redevelopment
g. None of the contaminants known to be present in the environmental media at
the Brownfields Property, including those listed in Exhibit 2 to this Agreement, may be used or
stored at the Brownfields Property without the prior written approval of DEQ, except in de
minimis amounts for: cleaning, other routine housekeeping, and vehicle maintenance and service
in compliance with applicable law, though vehicle parts and tools may not be washed in solvents
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containing any contaminants known to be present in the environmental media at the Brownfields
Property. The owner shall ensure that any leases for the storage space or yard space contain a
provision that prohibits the storage of tetrachloroethylene, trichloroethylene, cis 1,2-
dichloroethylene, 1,1-dichloroethylene, 1,1-dichloroethane, and 1,1,1-trichloroethane.
h. 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.
i. Neither DEQ, nor any party conducting environmental assessment or
remediation at the Brownfields Property at the direction of, or pursuant to a permit, order or
agreement issued or entered into by DEQ, may be denied access to the Brownfields Property for
purposes of conducting such assessment or remediation, which is to be conducted using
reasonable efforts to minimize interference with authorized uses of the Brownfields Property.
j. Any deed or other instrument conveying an interest in the Brownfields Property
shall contain the following notice: “This property is subject to the Brownfields Agreement
attached as Exhibit A to the Notice of Brownfields Property recorded in the __________ County
land records, Book ____, Page ____.” A copy of any such instrument shall be sent to the
persons listed in Section XV (Notices and Submissions), though financial figures and other
confidential information related to the conveyance may be redacted to the extent said redactions
comply with the confidentiality and trade secret provisions of the North Carolina Public Records
Law. The owner may use the following mechanisms to comply with the obligations of this
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paragraph: (i) If every lease and rider is identical in form, the owner conveying an interest may
provide DEQ with copies of a form lease or rider evidencing compliance with this paragraph, in
lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notice and
Submissions); or (ii) The owner conveying an interest may provide abstracts of leases, rather
than full copies of said leases, to the persons listed in Section XV.
l. During January of each year after the year in which the Notice referenced
below in paragraph 19 is recorded, the owner of any part of the Brownfields Property as of
January 1st of that year shall submit a notarized Land Use Restrictions Update (“LURU”) to
DEQ, and to the chief public health and environmental officials of Mecklenburg County (A joint
LURU may be submitted for multiple owners by a duly constituted board, association or other
entity approved in advance by DEQ), certifying that, as of said January 1st, the Notice of
Brownfields Property containing these land use restrictions remains recorded at the Mecklenburg
County Register of Deeds office and that the land use restrictions are being complied with, 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 Brownfields Property during the previous calendar year (for properties covered under
a joint LURU, this portion is not required); 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
Brownfields Property during the previous calendar year (for properties covered under a joint
LURU, this portion is not required).
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iii. whether any vapor mitigation measures implemented pursuant to
subparagraph 14.d and/or e. above are performing as designed, and whether the uses of the
ground floors of any buildings containing such vapor mitigation measures have changed, and if
so, how.
15. 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.
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 DEQ’s Superfund Section and the Division
of Waste Management Vapor Intrusion Guidance, as embodied in their most current version.
17. 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
18. In addition to providing access to the Brownfields Property pursuant to subparagraph
14.i above, Prospective Developer shall provide DEQ, its authorized officers, employees,
representatives, and all other persons performing response actions under DEQ oversight, access
at all reasonable times to other property controlled by Prospective Developer in connection with
the performance or oversight of any response actions at the Brownfields Property under
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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.
19. DEQ has approved, pursuant to NCGS § 130A-310.35, a Notice of Brownfields
Property for the Brownfields Property containing, inter alia, the land use restrictions set forth in
Section V (Work to Be Performed) of this Agreement and a survey plat of the Brownfields
Property. Pursuant to NCGS § 130A-310.35(b), within 15 days of the effective date of this
Agreement, Prospective Developer shall file the Notice of Brownfields Property in the
Mecklenburg County, North Carolina, Register of Deeds’ Office. Within three (3) days
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.
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 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
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recorded in the Mecklenburg County land records, Book ____, Page ____.” A copy of any such
instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though
financial figures and other confidential information related to the conveyance may be redacted to
the extent said redactions comply with the confidentiality and trade secret provisions of the
North Carolina Public Records Law. Prospective Developer may use the following mechanisms
to comply with the obligations of this paragraph: (i) If every lease and rider is identical in form,
Prospective Developer may provide DEQ with copies of a form lease or rider evidencing
compliance with this paragraph, in lieu of sending copies of actual, executed leases, to the
persons listed in Section XV (Notices and Submissions); or (ii) Prospective Developer may
provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section
XV.
21. 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
22. 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
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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 paragraph __.a. below of
any such required notification.
VIII. CERTIFICATION
23. 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 that use is: multi-residential, office, retail, industrial,
parking, and, if DEQ issues prior written approval, other commercial uses. Prospective
Developer also certifies that to the best of its knowledge and belief it has fully and accurately
disclosed to DEQ all information known to Prospective Developer and all information in the
possession or control of its officers, directors, employees, contractors and agents which relates in
any way to any past use of regulated substances or known contaminants at the Brownfields
Property and to its qualification for this Agreement, including the requirement that it not have
caused or contributed to the contamination at the Brownfields Property.
IX. DEQ’S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
24. 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
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or direction of the Prospective Developer increase the risk of harm to public health or the
environment, in which case Prospective Developer shall be liable for remediation of the areas of
the Brownfields Property, remediation of which is required by this Agreement, to the extent
necessary to eliminate such risk of harm to public health or the environment.
c. A land use restriction set out in the Notice of Brownfields Property required
under NCGS § 130A-310.35 is violated while the Prospective Developer owns the Brownfields
Property, in which case the Prospective Developer shall be responsible for remediation of the
Brownfields Property to unrestricted use standards.
d. The Prospective Developer knowingly or recklessly provided false information
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
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unacceptable at or in the vicinity of the Brownfields Property due to changes in exposure
conditions, including (i) a change in land use that increases the probability of exposure to
contaminants at or in the vicinity of the Brownfields Property or (ii) the failure of remediation to
mitigate risks to the extent required to make the Brownfields Property fully protective of public
health and the environment as planned in this Agreement.
g. DEQ obtains new information about a contaminant associated with the
Brownfields Property or exposures at or around the Brownfields Property that raises the risk to
public health or the environment associated with the Brownfields Property beyond an acceptable
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.
25. Except as may be provided herein, DEQ 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, NCGS § 113A-1, et seq.
27. Consistent with NCGS § 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
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.
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X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
28. 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
29. This Agreement shall apply to and be binding upon DEQ, and on the Prospective
Developer, its officers, directors, employees, and agents. Each Party’s signatory to this
Agreement represents that she or he is fully authorized to enter into the terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
XII. DISCLAIMER
30. 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.
31. Except for the land use restrictions set forth in paragraph 14 above and NCGS §
130A-310.33(a)(1)-(5)'s provision of the Act's liability protection to certain persons to the same
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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 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
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
33. If the Prospective Developer fails to comply with the terms of this Agreement,
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17003-13-060/Moores Chapel Redevelopment (draft 20170725)
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
34. 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:
Carolyn Minnich (or successor in function)
N.C. Division of Waste Management Brownfields Program
Mail Service Center 1646
Raleigh, NC 27699-1646
b. for Prospective Developer:
Alan Davidson (or successor in function)
Davidson Transportation Marketing, Inc.
4390 Stacks Road
Atlantic, GA 30349
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 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
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17003-13-060/Moores Chapel Redevelopment (draft 20170725)
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
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 NCGS § 130A-310.37(a)(5)-(6). The subject matter of this
Agreement is all remediation taken or to be taken and response costs incurred or to be incurred
by DEQ or any other person in relation to the Brownfields Property.
38. 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.
39. The Prospective Developer also agrees that, with respect to any suit or claim for
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17003-13-060/Moores Chapel Redevelopment (draft 20170725)
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
40. 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:
____________________________________________________________________________
Michael E. Scott Date Director, Division of Waste Management
IT IS SO AGREED:
Davidson Transportation Marketing Inc.
By: ____________________________________________________________________________
Alan Davidson: Date
President
Scale: AS SHOWN
Checked by: WAQ
Drawn by: RAS
Date: 12/16/11
Site Location Map
Former Thrift Mill Site
8300 Moores Chapel Road
Charlotte, North Carolina
Figure
1S&ME Project No.: 1354-10-115E
Mountain Island USGS Quadrangle dated 1997
Site Area
EXHIBIT C
LYING AND BEING SITUATE IN THE CITY OF CHARLOTTE, MECKLENBURG COUNTY, NORTH CAROLINA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AN EXISTING IRON ROD IN THE NORTHEASTERLY INTERSECTION OF MOORES CHAPEL ROAD (60 foot public right-of-way) AND GLASGOW ROAD(60 foot public right-of-way), THENCE WITH THE EASTERLY MARGIN OF GLASGOW ROAD NORTH 05-22-50 WEST A DISTANCE OF 1,163.48 FEET TO A NEW IRON ROD IN THE CENTER OF A ONE HUNDRED FOOT WIDE RIGHT-OF-WAY FOR THE PIEDMONT AND NORTHERN RAILROAD; THENCE WITH THE CENTERLINE OF SAID RAILROAD RIGHT-OF-WAY SOUTH 66-35-03 EAST A DISTANCE OF 1,242.84 FEET TO AN EXISTING IRON ROD; THENCE LEAVING SAID RIGHT-OF-WAY AND RUNNING WITH THE NORTHERLY LINE OF KENAN TRANSPORT COMPANY PROPERTY AS DESCRIBED IN DEED BOOK 4590, PAGE 885 OF THE MECKLENBURG COUNTY PUBLIC REGISTRY, SOUTH 84-01-00 WEST A DISTANCE OF 434.12 FEET TO AN EXISTING IRON PIPE IN THE WESTERLY MARGIN OF MILL DRIVEWAY HAVING A 30 FOOT RIGHT-OF-WAY; THENCE WITH SAID RIGHT-OF-WAY SOUTH 05-32-34 EAST A DISTANCE OF 555.34 FEET TO AN EXISTING IRON ROD IN THE NORTHERN RIGHT-OF-WAY OF MOORES CHAPEL ROAD; THENCE WITH SAID RIGHT-OF-WAY SOUTH 84-11-30 WEST A DISTANCE OF 656.64 FEET TO AN EXISTING IRON ROD, WHICH IS THE POINT AND PLACE OF BEGINNING, CONTAINING 695,824 SQUARE FEET OR 15.9739 ACRES AS SHOWN ON A SURVEY PREPARED BY R.B. PHARR AND ASSOCIATES DATED OCTOBER 10, 1989.