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Home My WebLink About19003_Biltmore Station_LURU Model_20170920NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2017 Name: Biltmore Station Project #: 19003-15-011 Address: 29-39 Garfield St. 2 Hendersonville Rd. County: Buncombe Property Owner (In part or whole): ____________________________ Read the following LURs and mark each restriction accordingly. Additional remarks may be added for compliance status clarification. Attach any required or supplemental documentation, sign, notarize and submit to the following address: NC Division of Waste Management Attn: Brownfields Program Staff 1646 Mail Service Center Raleigh, NC 27699-1646 No use may be made of the Brownfields Property other than for hotel, office, parking, restaurant, retail, storage, and, with prior written Department of Environmental Quality (“DEQ”) approval, other commercial uses. For purposes of this restriction, the following definitions apply: Office is defined as the provision of business or professional services; Parking is defined as the temporary accommodation of motor vehicles in an area designed for the same; Restaurant is defined as a commercial business establishment that prepares and serves food and/or beverages to patrons; Retail is defined as the sale of goods, services, products, or merchandise directly to the consumer or business and includes showrooms, personal service and the sale of food and beverage (including alcoholic beverage) products; Storage is defined as the use of an enclosed or partially enclosed building or designated outdoor area for the temporary accommodation of goods, materials or equipment, including without limitation, self-storage facilities and warehouses; and Commercial is defined as an enterprise carried on for profit or non-profit by the owner, lessee or licensee. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The Brownfields Property may not be used for child care centers or adult care centers or schools without the prior written approval of DEQ. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No activity that disturbs soil on the Brownfields Property may occur unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in LUR 1.a. above while fully protecting public health and the environment, except: in connection with landscape planting to depths not exceeding 36” in depth; mowing and pruning of above-ground vegetation; 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 activities conducted in accordance with a DEQ-approved Environmental Management Plan (“EMP”) as described in LUR 4. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ 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: soil and water management issues, including without limitation those resulting from contamination identified in the Environmental Reports; issues related to potential sources of contamination referenced in paragraphs 7 and 8 of Exhibit A to the Notice of Brownfields Property (“Notice”); 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), including without limitation the testing of soil and groundwater; and plans for the proper characterization of, and, as necessary, disposal of contaminated soils excavated during redevelopment. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ As part of the Land Use Restriction Update described below in LUR 9., for each year following the effective date of Exhibit A to the Notice for as long as physical redevelopment of the Brownfields Property continues (except that the final deadline shall fall 90 days after the conclusion of physical redevelopment), the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ approval on environment-related activities since the last report, with a summary and drawings, that describes: actions taken on the Brownfields Property in accordance with Exhibit A to the Notice, Section V: Work to be Performed; soil grading and cut and fill actions; methodology(ies) employed for field screening, sampling and laboratory analysis of environmental media; stockpiling, containerizing, decontaminating, treating, handling, laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected or confirmed to be contaminated with regulated substances; and removal of any contaminated soil, water or other contaminated materials (for example, concrete, demolition debris) from the Brownfields Property (copies of all legally required manifests shall be included). ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ 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. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ 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 Prope1iy recorded in the Buncombe County land records, Book 5523, Page 982.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions), though: (i) financial figures related to the conveyance may be redacted, and (ii) such disclosure may be in accordance with the confidentiality and trade secret provisions of the North Carolina Public Records Law (to the extent applicable). Prospective Developer may use the following mechanisms to comply with the obligations of this paragraph, subject to the terms and conditions that DEQ may establish in such approval: (i) If every lease or rider is identical in form, Prospective Developer may provide DEQ with a copy 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) Prospective Developer may provide abstracts of leases or such portions of leases as demonstrate compliance with the requirements of this paragraph, rather than full copies of said leases, to the persons listed in Section XV. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ None of the contaminants known to be present in the environmental media at the Brownfields Property, as described in Paragraph 8 of Exhibit A to the Notice, and as maybe modified as applicable and as set forth in N.C.G.S. § 130A-310.33(c) if additional contaminants in excess of applicable standards are discovered at the Brownfields Property, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except: in de minimis quantities for cleaning and other routine housekeeping and maintenance activities; as fuel or other fluids customarily used in vehicles, landscaping equipment and emergency generators; and as constituents of products and materials customarily used and stored in hotel, office, parking, restaurant, retail, storage, and, with prior written DEQ approval, other commercial environments, provided such products and materials are stored in original retail packaging and used and disposed of in accordance with applicable laws. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ 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 Buncombe County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Buncombe County Register of Deeds office and that the land use restrictions are being complied with. In addition: A joint LURU may be submitted for multiple owners by a duly constituted board or association, if said association or entity has accepted responsibility for such performance pursuant to a notarized instrument satisfactory to DEQ, and shall include the name, mailing address, telephone number, and contact person's e-mail address of the entity submitting the joint LURU as well as for each of the owners on whose behalf the joint LURU is submitted; A LURU submitted for any portion of the Property that contains rental units shall include the rent roll (including address information) and enough of each lease entered into during the previous calendar year to demonstrate compliance with lessee notification requirements in subparagraph 7 of this Notice, provided that if standard form leases are used in every instance, a copy of such standard form lease may be sent in lieu of copies of actual leases; and All LURUs shall state: the name, mailing address, telephone number, and contact person's e-mail address of the owner (or board, association or approved entity, if a joint LURU is submitted) submitting the LURU if said owner (or any of the owners on whose behalf the joint LURU is submitted) acquired any part of the Property during the previous calendar year; and ______________________________________________________________ the transferee's name, mailing address, telephone number, and contact person's e-mail address, if said owner transferred any part of the Property during the previous calendar year. ______________________________________________________________ ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Notarized signing and submittal of this Land Use Restrictions Update constitutes certification that the Notice of Brownfields Property remains recorded at the Buncombe County Register of Deeds office and that the Land Use Restrictions are being complied with. This Land Use Restrictions Update is certified by _____________, owner of at least part of the Brownfields Property on this ___ day of _________, 20__. Name typed or printed of party making certification: __________________ [Note: additional entities or owners may be added if appropriate (i.e. multiple managing members/entities)] By: __________________________ (signature) Name typed or printed: __________________ Title typed or printed: ___________________ NORTH CAROLINA __________ COUNTY I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: ______________________. Date: ____________ ___________________________________ Official Signature of Notary ____________________________________ Notary’s printed or typed name, Notary Public (Official Seal) My commission expires: _________________