The URL can be used to link to this page

Home My WebLink About20029_Shoppes on Innes_LURU Model_20171010NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2017 Name: Shoppes on Innes Project #: 20029-16-080 Address: 1519, 1539 East Innes Street County: Rowan 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, restaurant, office, parking, health-related professional offices, and with prior written Department of Environmental Quality (“DEQ”) approval, other commercial uses. For purposes of this restriction, the following definitions apply: Office is defined as the provision of business or professional services; Parking is defined as the temporary accommodation of motor vehicles in an area designed for the same; Commercial is defined as an enterprise carried on for profit or for a non-profit by the owner, lessee or licensee; Restaurant is defined as a commercial business establishment that prepares and serves food and/or beverages to patrons; Retail is 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 (including alcoholic beverage) products; and Health-related professional offices refer to the location where medical or other health-related trained professional personnel provide medical or other health-related services to patients. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The Brownfields Property may not be used for child care centers or adult care centers or schools without the prior written approval of DEQ. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Unless compliance with this LUR is waived in writing by DEQ in advance in regard to particular activity, no activities that encounter, expose, remove or use groundwater (for example, installation of water supply wells, ponds, lakes or swimming pools, or construction or excavation activities that encounter or expose groundwater) may occur on the Brownfields 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 Brownfields Property will be suitable for the uses specified in LUR 1 above while fully protecting public health and the environment. Prior sampling and analysis of groundwater to the written satisfaction of DEQ in any areas proposed for such activities, and submittal of the analytical results to DEQ is required. If such results reflect contaminant concentrations that exceed the standards and screening levels applicable to the uses authorized for the Brownfields Property, the groundwater-related activities proposed may only occur in compliance with any written conditions DEQ imposes. Activities 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. ☐ 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”; 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 Environmental Management Plan (“EMP”) as outlined in LUR 10 below. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No occupancy of the Brownfields Property for the uses defined in LUR 1 may occur until the then owner of the Brownfields Property conducts representative final grade soil sampling of any area of the Brownfields Property on the plat component of the Notice of Brownfields Property (“Notice”) that is not covered by 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: ______________________________________________________________ Soil may not be removed from, or brought onto, the Brownfields 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 10. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No enclosed building may be constructed on the Brownfields Property unless and 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: ______________________________________________________________ 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 the 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: ______________________________________________________________ Unless active vapor mitigation is implemented in accordance with LUR 7.c above, no occupancy of the Brownfields Property for the uses defined in LUR 1 may occur until a work plan for the installation and sampling of a soil gas monitoring point is approved by DEQ. The work plan will include, at a minimum, details on schedule and methodology for installation and sampling of a permanent soil gas monitoring point to be placed at a location upgradient of the planned building to be constructed in Phase I on the Brownfields Property. The soil gas monitoring point will be sampled for tetrachloroethylene and degradation products (trichloroethylene, 1,1-dichloroethylene, and vinyl chloride) within one month after monitoring point installation and then annually. At the completion of the third annual sampling event, a request to terminate future annual sampling may be submitted to DEQ that includes the public health rationale for such termination. Should the data collected from this soil gas point indicate exposures at the Brownfields Property that raise the risk to public health or the environment associated with the Brownfields Property beyond an acceptable range and in a manner or to a degree not anticipated in the Brownfields Agreement (“Agreement”, aka: Exhibit A), DEQ may require that the then owner(s) re-evaluate that risk for areas potentially subject to said risk and conduct any actions DEQ deems necessary to reduce said risk to make the Brownfields Property suitable for the uses authorized in LUR 1 while fully protecting public health and the environment. ☐ 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 as DEQ deems necessary) 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 Agreement and any contamination discovered during the additional assessment required by LUR 15; 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: ______________________________________________________________ As part of the Land Use Restriction Update described below in LUR 17 for each year following 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, except with prior DEQ approval otherwise), the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ approval on environment-related activities since the last LURU with a summary and drawings, that describes: actions taken on the Brownfields Property in accordance with Section V of the Agreement: Work to be Performed; 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 Rowan County land records, Book 1294, Page 306.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions) in Exhibit A, though financial figures and other confidential information 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 LUR, subject to terms and conditions that DEQ may establish: (a) if every lease or rider is identical in form, Prospective Developer may provide DEQ with a copy of a form lease or rider evidencing compliance with this LUR, in lieu of sending copies of actual, executed leases, to the persons listed in Section XV (Notices and Submissions) in Exhibit A; or (b) Prospective Developer may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV of the Agreement. ☐ 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 the Agreement, and as modified as set forth in N.C.G.S. § 130A-310.33(c)(2), 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 fuels or other fluids customarily used in vehicles, landscaping equipment and emergency generators; and as constituents of products and materials customarily used and stored in high-density residential, retail, restaurant, related office and parking uses and, with prior written DEQ approval, other commercial 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 manmade 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: ______________________________________________________________ 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 Land Use Restriction is waived in writing by DEQ in advance. ☐ 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 Rowan County, certifying that, as of said January 1st, the Notice containing these land use restrictions remains recorded at the Rowan 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 or 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; ______________________________________________________________ the transferee’s name, mailing address, telephone and facsimile numbers, and contact person’s e-mail address, if said owner or each of the owners on whose behalf the joint LURU is submitted transferred any part of the Brownfields Property during the previous calendar year; ______________________________________________________________ whether any vapor barrier and/or mitigation systems installed pursuant to LUR 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. ______________________________________________________________ the data acquired from annual soil vapor sampling upgradient of the planned building in Phase I of the development referenced in LUR 9 above for a minimum of three years following execution of this Agreement, or until the buildings are demolished, whichever is sooner. ______________________________________________________________ ☐ 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: ______________________________________________________________ LURUs submitted for any portion of the Brownfields Property that contains rental units shall include a list of the tenants and their addresses, ☐ 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 15.h. and 22 of the agreement, 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: ______________________________________________________________ Notarized signing and submittal of this Land Use Restrictions Update constitutes certification that the Notice of Brownfields Property remains recorded at the Rowan 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: _________________