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Home My WebLink About20037_Highland Mill #3 North Brevard St_LURUModel_2017_01_10NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2018 Name: Highland Mill #3 – North Brevard Project #: 20037-16-060 Address: 2715-2833 North Brevard Street 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 multi-family residential, open space, and recreation. For purposes of this restriction, the following definitions apply: “Multi-Family Residential” defined as multi-unit human dwellings, such as duplexes, triplexes, quadriplexes, townhomes, condominia, or apartments. Single family detached homes are prohibited. “Open Space” defined as land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways, or detention facilities for stormwater. “Recreation” defined as indoor and outdoor exercise-related, physically focused, or leisure related activities, whether active or passive, and the facilities for same, including, but not limited to, studios, swimming pools, sports-related courts and fields, open space, greenways, parks, playgrounds, walking paths, and picnic and public gathering areas. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Prior written Department of Environmental Quality (“DEQ”) approval is required for use as child care centers, adult care centers or schools. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Groundwater at the Brownfields Property may not be used for any purpose 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 above while fully protecting public health and the environment, except: in connection with landscape planting to depths not exceeding 24 inches; 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.; or in accordance with an Environmental Management Plan (EMP) or Living Environmental Management Plan (LEMP) as outlined in LUR 8. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No use, as outlined in LUR 1, or occupancy of the Brownfields Property may occur after redevelopment until the then owner of the Brownfields Property conducts representative final grade soil sampling and if DEQ deems necessary an assessment of risk of any area within the Brownfields Property, pursuant to a specific plan, EMP, or LEMP, approved in advance in writing by DEQ. At a minimum, that plan shall include the collection of soil samples from the estimated or actual depth of soil to be cut along the Brownfields Property for the purposes of documenting impacts that may remain at the site, as well as surficial soil sampling. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No enclosed building may be constructed on the Brownfields Property and no existing building, defined as those depicted on the plat in Exhibit 8, hereto, may be occupied until DEQ determines in writing that: 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 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 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. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ 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. ☐ 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 EMP or LEMP 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 Exhibit 2 of the Brownfields Agreement (“Agreement” or “Exhibit A”); contingency plans for addressing, including without limitation the testing of soil and groundwater, newly discovered potential sources of environmental contamination (e.g., underground storage tanks, drums, septic drain fields, oil-water separators, soil contamination); and plans for the proper characterization of, and, as necessary, disposal of contaminated soils excavated during redevelopment. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ By January 31 of each year after the effective date of the 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 on the Brownfields Property in accordance with Section V: Work to be Performed of Exhibit A; 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 Property recorded in the Mecklenburg County land records, Book 31399 Page 885.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions) of Exhibit A, though financial figures related to the conveyance may be redacted. 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 (Notice and Submissions) of Exhibit A; or (ii) Prospective Developer may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV of Exhibit A. ☐ 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 Exhibit 2 of Exhibit A, and as modified by DEQ in writing 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; in fluids in vehicles; and as constituents of products and materials customarily used and stored in residential 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: ______________________________________________________________ Within 60 days after the effective date of the Agreement or prior to land disturbance activities, Prospective Developer shall abandon monitoring wells, injection wells, recovery wells, piezometers and other man-made points of groundwater access at the Brownfields Property, except MW-10 identified on the plat of Exhibit B, in accordance with Subchapter 2C of Title ISA of the North Carolina Administrative Code, unless an alternate schedule is approved by DEQ. Within 30 days after doing so, the Prospective Developer shall provide DEQ a report, setting forth the procedures and results. The monitoring well MW-10, if still present on the Brownfields Property, shall remain open until redevelopment activities require it to be abandoned, at which point MW-10 may be abandoned. ☐ 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. This includes the replacement of monitoring well MW-10 (previously installed at the site by DSCA) should it need to be abandoned during redevelopment activities in coordination with DEQ and if DEQ so requires. ☐ 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 that the land use restrictions are being complied with, and stating: the name, mailing address, telephone and facsimile numbers, and contact person's e-mail address of the owner, board, association, or approved entity submitting the LURU if said owner or each of the owners on whose behalf the joint LURU is submitted acquired any part of the Brownfields Property during the previous calendar year; ______________________________________________________________ A property owners' association or other entity may perform these LURU duties, on behalf of some or all owners of the Brownfields Property, if said association or entity has accepted responsibility for such performance pursuant to a notarized instrument satisfactory to DEQ that includes at a minimum, the name, mailing address, telephone and facsimile numbers, and e-mail address of each owner on whose behalf the LURU is proposed to be submitted. ______________________________________________________________ whether any vapor barrier and/or mitigation systems installed pursuant to LUR 6 above are performing as designed, and whether the uses of the ground floors of any buildings containing such vapor barrier and/or mitigation systems have changed, and, if so, how. ______________________________________________________________ whether soil caps (hardscape materials, clean soil, stone) and landscaping required by the EMP or LEMP outlined in paragraph 8 above are being inspected and maintained to prevent erosion and/or human exposure to contaminated soil or other media. ______________________________________________________________ LURUs submitted for any portion of the Brownfields Property that contains rental units shall include a list of tenants and their addresses. ______________________________________________________________ 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 paragraphs 21 and 22 of Exhibit A. ______________________________________________________________ ☐ 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: _________________