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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: <!--[if !supportLineBreakNewLine]--><!--[endif]--> 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. <!--[if !supportLineBreakNewLine]--><!--[endif]--> 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 1 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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, 2 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 3 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. 4 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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. 5 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 6 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 7 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 8 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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: 9 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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- 10 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 11 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 12 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 13 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 14 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 15 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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). 16 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 17 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 18 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 19 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 20 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 21 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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. 22 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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 23 17003-13-060/Moores Chapel Redevelopment (draft 20170725) 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, 24 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 25 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 26 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.