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Home My WebLink About16035_Kent Corner_LURUModel_20170921NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2018 Name: Kent Corner Project #: 16035-12-032 Address: Kent St. & W. Chapel Hill St. County: Durham 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 Property other than for commercial office, medical laboratory, retail, restaurant, multi-unit residential use (permitted only on the second story or higher unless compliance with this restriction is waived in writing in advance by the Department of Environmental Quality [“DEQ”] in relation to particular buildings), and community service organizations, potentially including youth programs and child-care services, with associated parking, common open space for public use, and storm water management features. For purposes of this restriction, the following definitions apply: “Commercial office” refers to a place where business or professional services are conducted or rendered including personal, business, professional, medical, and dental offices. “Medical laboratory” refers to a laboratory where tests are performed on clinical specimens in order to get information about the health of a patient as it pertains to diagnosis, treatment, and the prevention of disease. “Retail” use refers to the sale of goods, products, or merchandise directly to the consumer. “Restaurant” refers to an establishment where meals are prepared and served to paying customers. “Multi-unit residential” use refers to a permanent dwelling such as a condominium, apartment, group home, dormitory or boarding house where residential units are attached to each other with common walls and any property outside the dwelling structure is common to the residents and not privately owned as part of an individual dwelling unit. “Community service organizations” refer to groups organized generally as non-profit operations to address a variety of community needs for the benefit of the public. “Youth programs” refers to activities designed to involve young people for the purposes of fostering their development and may include social, recreational, educational, interventional, and counseling activities. “Child care services” refers to activities related to the safe care and feeding of children and may include educational and recreational services. “Parking” refers to the temporary accommodation of motor vehicles in an area designed for same. “Common open space” refers to an area within a development site designed and intended for the use and enjoyment of occupants of the development or for the general public. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Unless compliance with this LUR is waived in writing in advance by DEQ in relation to particular buildings, no use of the Property may occur prior to demolition of all buildings slated for demolition on the Property as depicted on the plat component of the Notice of Brownfields Property (“Notice”) referenced in paragraph 22 of the Brownfields Agreement (“Agreement”) 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: ______________________________________________________________ Physical redevelopment of the Property may not occur other than in accord, as determined by DEQ, with an Environmental Management Plan prepared for each phase of redevelopment and as 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 Property, the timing of redevelopment phases, and addresses health, safety and environmental issues that may arise from use of the 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 Agreement; contingency plans for addressing newly discovered potential sources of environmental contamination (e.g., tanks, drums, septic drain fields); and a requirement for representative final grade soil sampling of any area not planned to be covered by building foundations, sidewalks, or asphaltic or cement parking areas and driveways to the written satisfaction of DEQ. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Within 90 days after each one-year anniversary of the effective date of the Agreement for as long as each phase of physical redevelopment of the Property continues (except that the final deadline shall fall 90 days after the conclusion of physical redevelopment of each phase separately), the then owner of the 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 No. 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 Property (copies of all legally required manifests shall be included). ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No activities that encounter, expose, remove or use groundwater (for example, installation of water supply wells, fountains, ponds, lakes or swimming pools, or construction or excavation activities that encounter or expose groundwater) may occur on the Property 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 Property will be suitable for the uses specified in LUR No. 1 above while fully protecting public health and the environment. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ After conclusion of each of the separate redevelopment periods referenced in LUR No. 1 above, as determined by DEQ, no activity that disturbs soil on the 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 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 de minimis soil removals to depths not exceeding 18 inches, mowing and pruning of above-ground vegetation; and, for 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: ______________________________________________________________ No enclosed building may be constructed on the Property and no existing building, defined as those depicted on the plat component of the Notice of Brownfields Property referenced in paragraph 22 of the Agreement, and including that property described as “Phase II Development” on the plat component of the Notice referenced in paragraph 22 of the Agreement may be occupied until: it is demonstrated, pursuant to a DEQ approved plan, and subject to DEQ’s written approval, that the building would be or is sufficiently distant from the 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 Property, including those appearing in paragraph 8 of the Agreement, may be used or stored at the Property without the prior written approval of DEQ, except in de minimis amounts for cleaning and other routine housekeeping activities; in stored fuels for use in emergency generators in locations in which releases from these storage areas would be distinguishable with certainty from the subject contaminants from any known release at the property that predates this Agreement; or as components in sealed, pre-packaged containers sold in a retail context in connection with uses permitted under the Agreement. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Known or future discoveries of petroleum UST release(s) at the Property shall be addressed to the satisfaction of the DEQ. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The Property may not be used for agriculture or grazing, except for use as community gardens planted in constructed raised beds. “Community garden” refers to use of shared land to grow vegetables, flowers or other crops. Any such garden shall not disturb any native soil at the Property and shall be constructed with a base layer of geotextile material over the native soil, in raised beds above it. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The owner of any portion of the Property where any existing, or subsequently installed, DEQ-approved monitoring well is damaged by the actions or omissions of such owner, or by its employees, contractors, tenants, or agents 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 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 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 Property. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ During January of each year after the year in which the Notice referenced in paragraph 22 of the Agreement is recorded, the owner of any part of the 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 Durham County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these LURs remains recorded at the Durham County Register of Deeds office and that the LURs 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 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 Property during the previous calendar year; ______________________________________________________________ whether any vapor barrier and/or mitigation systems installed pursuant to LUR No. 7 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; and ______________________________________________________________ whether there have been any activities in the prior year related to petroleum hydrocarbon releases from USTs at the Property under the jurisdiction of the DEQ UST Section, and their outcome including the issuance of any “No Further Action” letters from the UST Section. ______________________________________________________________ Alternatively, a property owners' association or other entity may perform this LUR No. 13’s duties, on behalf of some or all owners of the 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. ☐ 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 Durham 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: _________________