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Home My WebLink About10047_Atherton Mill_LURUModelNC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2018 Name: Atherton Mill Project #: 10047-06-060 Address: 2000, 2100, 2130, 2140 South Blvd. County: Mecklenburg 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 retail, office, parking, high density residential, entertainment, hotel, restaurant, open space, light rail transit, farmer's market, and subject to the Department of Environmental Quality’s (“DEQ”) prior written approval, other commercial uses. For purposes of this restriction, the following definitions apply: “Retail” defined as the sale of goods or services, products, or merchandise directly to the consumer or businesses and includes showrooms, personal service, and the sales of food and beverage products; “Office” defined as the provision of business or professional services; “Parking” defined as the temporary accommodation of motor vehicles in an area designed for same; “High Density Residential” defined as permanent dwellings where residential units are attached to each other with common walls, such as condominia, apartments, group homes, dormitories or boarding houses, and any Brownfields Property outside the dwelling structures is usable by all residents and not privately owned as part of a particular unit, and shall include related amenities, such as pools, clubhouses, courtyards, common areas, recreation areas and parking garages; “Entertainment” defined as private, public, and community activities (such as, for example, festivals, theater, musical events or shows), which may include food and beverage service; “Hotel” defined as the provision of overnight lodging to paying customers, and to associated food services, gym, reservation, cleaning, utilities, parking and on-site hospitality, management and reception services; “Restaurant” defined as a commercial business establishment that prepares and serves food and beverages to patrons including outside dining; “Open Space” defined as land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways, detention facilities for stormwater; “Light Rail Transit” defined as rail way and a public walking and/or biking trail located within the existing City of Charlotte Railroad Right-of-Way as depicted on the plat component of the Notice of Brownfields Property (“Notice”); “Farmers Market” defined as a food market at which local farmers and merchants sell fruit and vegetables and often meat, cheese, prepared foods, crafts and bakery products directly to consumers; and “Commercial” defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The Brownfields Property may not be used for child care, adult care centers or schools without the prior written approval of DEQ. Notwithstanding the foregoing, a business enterprise is allowed to offer short term indoor child care that is ancillary to a use which is allowed herein (such as a fitness club or yoga studio that offers short term indoor child care as an ancillary service to its customers). ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Within the Area designated “No Soil Disturbance Without DEQ Approval” on the plat component of the Notice, 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 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 paragraph 7 and 8 in Exhibit A to the Notice; and contingency plans for addressing newly discovered potential sources of environmental contamination (e.g., tanks, drums, septic drain fields). ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Within 90 days after each one-year anniversary of the effective date of the Brownfields Agreement (“Agreement”) 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 in accordance with the plan required by LUR 3 above; 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: ______________________________________________________________ After conclusion of the redevelopment period referenced in LUR 3, as determined by DEQ, no activity that disturbs soil on the Brownfields Property within the area designated “No Soil Disturbance Without DEQ Approval” 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 LUR 1 above while fully protecting public health and the environment, except that the Prospective Developer need not obtain approval if such activity is conducted in accordance with the EMP. Notwithstanding the above, the Prospective Developer may conduct landscaping activities within the area designated “No Soil Disturbance Without DEQ Approval” on the plat component of the Notice including without limitation mowing, pruning of above-ground vegetation, and landscape plantings (providing total depth of the final soil cover is not compromised and the work does not penetrate into impacted soils), as well as emergency repair of underground infrastructure, provided that DEQ shall be given written notice (if only by email) of any such emergency repair no later than the next business day, and that any related assessment and remedial measures required by DEQ shall be taken. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Groundwater or surface water, other than in connection with legally compliant storm water collection and reuse techniques, may not be used for any purpose on the Brownfields Property without the prior written approval of DEQ. Prohibited uses includes the use of groundwater for drinking, bathing, irrigation, industrial process or any other purpose which would cause groundwater to come in contact, either directly or indirectly, with people, animals, surface vegetation or the atmosphere. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ In addition to work performed to date, within 60 days after the effective date of the Brownfields Agreement (“Agreement”), Prospective Developer shall submit for DEQ approval a plan, including a schedule, for indoor air sampling to determine whether and to what extent contaminant vapor is entering site buildings (other than the Parks-Cramer building) that will continue to be occupied for more than 1 year after the Effective Date of the Agreement. In developing the plan contemplated herein, Prospective Developer may rely on the indoor air sampling and vapor mitigation measures which have already been implemented at the Brownfields Property as described in the Environmental Reports. When actions are required by the plan, it shall be the responsibility of the then owner(s) of the portions of the Brownfields Property containing buildings appearing on the plat component of the Notice to take said actions. If volatile organic compound (“VOC”) sampling pursuant to that plan indicates to DEQ that VOC levels exceed the Target Indoor Air Monitoring Risk Goals approved by DEQ on March 16, 2015, the subject owner shall submit a vapor mitigation plan, including a schedule, for DEQ approval and shall implement said plan as approved in writing by DEQ. DEQ shall alter or terminate the testing and/or sampling requirement if it determines that it is not necessary in order for the Brownfields Property to remain suitable for the uses specified in LUR 1. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Any building that is converted to residential use or newly constructed building which is located in the area designated “Vapor Intrusion Requirement Zone” on the plat component of the Notice may not be occupied until: the building would be sufficiently distant from the Brownfields Property's groundwater and/or soil contamination, as determined in advance 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 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. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ None of the contaminants known to be present in the environmental media at the Brownfields Property, including those appearing in Exhibit 2 to the Agreement, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except in de minimis amounts for cleaning and other routine housekeeping activities. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Within 30 days prior to land disturbance activities that will impact existing groundwater monitoring wells, injection wells, recovery wells, piezometers and other man-made points of groundwater access at the Brownfields Property, Prospective Developer shall notify DEQ that it is ready to effect the abandonment of those wells that are located in the area of land disturbance, in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code, unless an alternate schedule is approved by DEQ. Unless DEQ notifies Prospective Developer within 10 days of receiving such notification to refrain from such abandonment, Prospective Developer shall, on a schedule acceptable to DEQ, effect said abandonment and, within 30 days after doing so, provide DEQ a report, subject to DEQ approval, setting forth the procedures and results. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ 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 LUR is waived in writing by DEQ in advance. ☐ 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: ______________________________________________________________ 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 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 the land use restrictions are being complied with, and stating: the name, mailing address, telephone and facsimile numbers, and contact person's email address of the owner submitting the LURU if said owner acquired any part of the Brownfields Property in fee during the previous calendar year (for properties covered under a joint LURU, this portion is not required); ______________________________________________________________ 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 in fee during the previous calendar year (for properties covered under a joint LURU, this portion is not required); ______________________________________________________________ whether any vapor mitigation measures implemented pursuant to LURs 7 and 8 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; ______________________________________________________________ LURUs 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 paragraph 21 and 22 of Exhibit A provided that if standard form leases are used in every instance, a copy of such portions of such a standard form lease may be sent in lieu of copies of actual leases; and A joint LURU may be submitted for multiple owners by a duly constituted board or association, or another person or entity approved in advance by DEQ. Such joint LURU shall include the name, mailing address, telephone and facsimile numbers, and contact person's e-mail address of the entity or person submitting the joint LURU as well as for each of the owners on whose behalf the joint LURU is submitted. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Any deed or other instrument conveying an interest in the Brownfields Property shall contain the following notice: “The property which is the subject of this instrument is subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Mecklenburg County land records, Book 31204, Page 358.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions) in Exhibit A hereto, though financial figures related to the conveyance may be redacted. If DEQ issues prior, written approval, 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 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) in Exhibit A attached to the Notice; or (ii) Prospective Developer may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV in Exhibit A of the Notice. ☐ 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 Mecklenburg 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: _________________