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Home My WebLink About19057_Pepsi Bottling_LURUModel_2016_12_20NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2018 Name: Pepsi Bottling Project #: 19057-15-060 Address: 2734 & 2820 South Boulevard 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 high density residential with amenities for residents, retail, restaurant, transit, office, parking, and subject to the Department of Environmental Quality (“DEQ's”) prior written approval, other commercial uses. For purposes of this restriction, the following definitions apply: “High Density Residential” refers to 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 property outside the dwelling structures is usable by all residents and not privately owned as part of a particular unit, and may include related amenities, such as pools, clubhouses, courtyards, common seating and gathering areas, recreation areas and parking garages. “Retail” refers to the sale of goods, services, products, or merchandise directly to the consumer or businesses and includes showrooms, personal service, entertainment, and the sales of food and beverage products. “Restaurant” refers to a commercial business establishment that prepares and serves food and beverages to patrons, including outdoor dining. “Office” refers to the rendering of business or professional services, including financial services. “Entertainment” refers to private, public and community activities (such as festivals, theater, musical events or shows), which may include food and beverage service. “Recreation” refers to 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 above-ground swimming or wading pools or in-ground swimming or wading pools that are constructed within clean imported fill material, clubhouses, open space, walking paths, dog runs, and picnic and public gathering areas. “Open Space” refers to land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways and/or detention facilities for stormwater as well as public, private or community events. “Parking” refers to the temporary accommodation of motor vehicles in an area designed for same. “Commercial” refers to an enterprise carried on for profit by the owner, lessee or licensee. “Courtyard” refers to a landscaped or hardscaped area for residents' use for leisure activities. Any such feature shall not disturb native soil at the Brownfields Property unless in accordance with a DEQ-approved Environmental Management Plan required by LUR No. 2 below. “Dog Run” refers to an enclosed area designed to allow freedom of movement and a play area for residents' dogs. Any such feature shall not disturb native soil at the Brownfields Property unless in accordance with a DEQ-approved Environmental Management Plan required by Land Use Restriction No. 2 below. · “Transit” refers to any use for a public transportation system and network (including, without limitation, pedestrian and bicycle trails and facilities) that may be expanded or modified from time to time, including the LYNX operated by the City and the facilities incident or necessary for the safe, convenient, effective and efficient construction, operation, maintenance, repair and replacement of such system, including platforms, shelters, waiting areas, walkways, offices, vendor kiosks and other such improvements. ☐ 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 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 paragraph 8 of the Brownfields Agreement (“Agreement”) attached as 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); and plans for the proper characterization of, and as necessary, disposal of contaminated soils excavated during redevelopment. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ During January 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 which is de1med as receipt of the Imai Project Certificate of Occupancy), the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ approval on environment-related activities at the Brownfields Property since the last report, with a summary and drawings, that describes: actions taken in accordance with the plan required by LUR No. 2 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: ______________________________________________________________ Unless compliance with this LUR is waived in writing in advance by DEQ in relation to particular buildings, demolition and/or renovation of any or all buildings on the Brownfields Property depicted on the plat attached as Exhibit B to the Notice must occur in accordance with applicable legal requirements, including without limitation those related to lead and asbestos abatement that are administered by the Health Hazards Control Unit within the Division of Public Health of the North Carolina Department of Health and Human Services. ☐ 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: ______________________________________________________________ After conclusion of the redevelopment period, 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 No. 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; and 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. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ In each separate phase of redevelopment as it occurs at the Brownfields Property, no occupancy of the building(s) under redevelopment in that phase, may occur until the then owner of the Brownfields Property conducts, pursuant to an Environmental Management Plan approved in writing by DEQ, representative final grade soil sampling of any area within the Brownfields Property that is not covered by demonstrably clean fill soil, building foundations, sidewalks, or asphaltic or concrete parking areas and driveways pursuant to a plan approved in writing by DEQ. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No enclosed building may be constructed on the Brownfields Property unless and until DEQ determines in writing that: it is demonstrated to DEQ's written satisfaction through a site-specific risk assessment, that the building is protective of the building's users, public health and the environment from risk of vapor intrusion; it is demonstrated, pursuant to a DEQ approved plan, and subject to DEQ's approval, that the building would be or is 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; or a plan for a vapor intrusion mitigation system, approved in writing by DEQ in advance and including a proposed performance assessment for demonstration of the system's protection of the building's users, public health and the environment from risk from vapor intrusion, is implemented to the satisfaction of a North Carolina-licensed professional engineer as reflected by an implementation report, bearing the seal of said engineer, that includes photographs and a description of the installation and performance assessment of the mitigation system. ☐ 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 paragraph 8 of 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, and as constituents of fuels, lubricants and oils in emergency generators, machinery, equipment and vehicles in on-board tanks integral to said equipment or in flammable liquid storage containers totaling no more than 25 gallons. ☐ 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. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The owner of any portion of the Brownfields Property where any subsequently installed, DEQ-approved monitoring well is damaged 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: ______________________________________________________________ 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 31185, Page 803.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions), 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: (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); or (ii) Prospective Developer may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV of the Agreement attached hereto as Exhibit A. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ During January of each year after the year in which this Notice of Brownfields Property 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 Pt, 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 submitting the LURU if said owner acquired any part of the Brownfields Property during the previous calendar year; ______________________________________________________________ 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; ______________________________________________________________ whether any vapor barrier and/or mitigation systems installed pursuant to LUR No. 8 above, are performing as designed, and whether the uses of the ground floors of any building containing such vapor barrier and/or mitigation systems have changed, and, if so, how; ______________________________________________________________ for rental properties, shall include a list of tenants, their addresses, and a form lease entered into by said tenants during the previous calendar year to demonstrate compliance with lessee notification requirements in paragraphs 21 and 22 of the Agreement; and ______________________________________________________________ if a joint LURU is submitted for multiple owners by a duly constituted board or association, it shall include the name, mailing address, telephone and facsimile numbers, 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. ☐ 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: _________________