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Home My WebLink About20071_Howerton Bryan_LURU Model_20170928NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2017 Name: Howerton Bryan Project #: 20071-16-032 Address: 1001, 1003, 1005 W. Main St.; 1006, 1010, 1014, 1016 W. Peabody 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 Brownfields Property other than for high-density residential, retail, and associated amenity space and parking uses, 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: “High-density residential” is 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 property outside the dwelling structures is usable by all residents and not privately owned as part of a particular unit, and may include related amenity space with amenities, such as pools, clubhouses, courtyards, common areas, recreation areas and parking garages. “Retail” is defined as the sale of goods or services, products, or merchandise directly to the consumer or businesses, and includes showrooms, personal services, and the sales of food and beverage products. Retail use involving dry cleaners using chlorinated solvents or other uses involving chlorinated solvents are prohibited. “Amenity space” is defined as a hardscaped and landscaped courtyard, swimming pool, pool deck, courtyard, dog run, community gardens, fire pit, grilling station, seating areas, and a common use interior clubhouse. Any such feature shall not disturb native soil at the Brownfields Property without prior approval from DEQ. “Parking” is defined as the temporary accommodation of motor vehicles in an area designed for same. “Commercial” is defined as an enterprise carried on for profit or nonprofit by the owner, lessee, or licensee. “Recreation” is defined as indoor and outdoor exercise-related, physically focused, or leisure-related activities, whether active or passive, and the facilities for same. ☐ 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 paragraph 8 of Exhibit A; 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 groundwater and contaminated soils excavated during redevelopment. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ By January 31st after each one-year anniversary of the effective date of the Brownfields Agreement (“Agreement”, aka: Exhibit A) 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 in 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: ______________________________________________________________ The 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: ______________________________________________________________ Groundwater at the 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: ______________________________________________________________ Soil may not be removed from, or brought onto, the Property without prior sampling and analysis to DEQ's satisfaction and the written approval of DEQ, unless conducted in accordance with an approved EMP as outlined in LUR No. 2 above. ☐ 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 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; 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; in connection to work conducted in accordance with a DEQ-approved EMP as outlined in LUR No. 2 above. No enclosed building may be constructed on the Brownfields Property and no existing building, defined as those depicted on the plat component of the Notice of Brownfields Property (“Notice”) 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; 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: ______________________________________________________________ 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 component of th Notice shall be 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: ______________________________________________________________ Not later than completion of redevelopment, the known UST identified in subparagraph 7.a. of Exhibit A shall be removed and addressed to the satisfaction of DEQ in accordance with the EMP required by LUR No. 2 above. ☐ 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 all monitoring wells, injection wells, recovery wells, piezometers and other man-made points of groundwater access at the Brownfields Property in accordance with Subchapter 2C of Title 15A 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. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ After the work referenced in LUR No. 11 has been completed, the owner of any portion of the Brownfields Property, where any 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 Land Use Restriction 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: “This property is subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Durham County land records, Book 8207, Page 221.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions) of Exhibit A attached hereto, though financial figures related to the conveyance may be redacted to the extent said redactions comply with the confidentiality and trade secret provisions of the North Carolina Public Records Law. The owner conveying an interest may use the following mechanisms to comply with the obligations of this paragraph: (i) If every lease and rider is identical in form, the owner conveying an interest 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) The owner conveying an interest 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 paragraph 8 of Exhibit A to the Notice, 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; 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; or as constituents of products and materials customarily used and stored in high-density residential, retail, and associated amenity space and parking 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 Durham County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Durham County Register of Deeds office and that the land use restrictions are being complied with. The submitted LURU shall state the following: 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 buildings containing such vapor barrier and/or mitigation systems have changed, and, if so, how. ______________________________________________________________ ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ 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 the agreement in Exhibit A 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. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ A joint LURU may be submitted for multiple owners by a duly constituted board or association and 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 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: _________________