HomeMy WebLinkAbout21016_500 West Fifth Street III_LURU ModelNC BROWNFIELDS
LAND USE RESTRICTIONS (“LUR”) UPDATE
Year Certification Made: 2017
Name: 500 West Fifth Street III
Project #: 21016-17-034
Address: 0 & 500 W. Fifth St., 501 & 601 W. Fourth St.
County: Forsyth
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, office, restaurant, fitness club, open space, and parking uses, and with approval by the
Department of Environmental Quality (“DEQ”), other commercial uses. For purposes of this restriction, the following definitions apply:
“High density residential” is defined as permanent dwellings where residential units are limited to the second story or higher and 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 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 service, and the sales of food
and beverage products.
“Office” is defined as the provision of business or professional services.
“Restaurant” is defined as a commercial business establishment that prepares and serves food and beverages to patrons.
“Fitness club” is defined as a place that offers exercise equipment and physical fitness classes, such as cardio, gymnastics, dance or yoga classes, for paying customers or employees
for health and physical fitness purposes, and is also known as a health club, gym, or exercise studio.
“Open space” is defined as land maintained in a natural or landscaped state and may be used for natural resource protection, buffers, pocket parks, greenways, or detention facilities
for stormwater.
“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.
☐ 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, or a specific portion thereof, the timing of redevelopment phases, and addresses health, safety and environmental issues that may arise from
use of the Brownfields Property, or a specific portion thereof, 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 to the Brownfields Agreement (“Agreement”, aka: Exhibit A) attached to the Notice, or any new contamination
discovered during the additional assessment required by LUR No. 2.e. below;
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);
plans for the proper characterization of, and, as necessary, disposal of contaminated soils excavated during redevelopment; and
plans for assessing and addressing soils that will be exposed for contact by future redevelopment that are presently under parking lots, buildings, or other de facto caps that prevent
exposure.
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
Within 90 days after each one-year anniversary of the effective date of the Agreement attached as Exhibit A to the Notice 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, or a specific portion thereof,
shall provide DEQ a report subject to written DEQ approval on environment-related activities applicable to that portion of the Brownfields Property then owned by such party since the
last report, with a summary and drawings, that describes:
actions taken on the portion of the Brownfields Property then owned 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 portion of the Brownfields Property then owned (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 component, Exhibit B 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: ______________________________________________________________
Not later than completion of the redevelopment affecting the portion of the Brownfields Property on which they are located, the known USTs that are as of yet not removed or closed-in-place
in accordance with North Carolina well standards, and are not required once the redevelopment is in place, identified above in subparagraphs 6.f., 7.a., 7.b., 7.d., and 7.e. of the
Agreement attached as Exhibit A to the Notice shall be removed and addressed to the satisfaction of DEQ.
☐ 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: ______________________________________________________________
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: ______________________________________________________________
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 Environmental Management Plan (EMP) as outlined in LUR No. 2.
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
New or existing building foundation structures and asphalt parking lot caps must be maintained in good condition to prevent direct exposure to underlying soil and shall not be removed
unless said buildings or caps are removed in preparation for redevelopment, and then said removal may take place only in accordance with an approved EMP as required by LUR No. 2.
☐ 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 No. 2.
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
No enclosed building may be constructed on the Brownfields Property 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: ______________________________________________________________
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 Forsyth County land records, Book 3365, Page 3613.” A copy of any such instrument shall be sent to the persons listed
in Section XV (Notices and Submissions) of the Agreement, 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 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 the Agreement; 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 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 attached as 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 products and materials customarily used and stored in residential, retail, office, and parking environments, provided such products and materials are stored in original
retail packaging and used and disposed of in accordance with applicable laws; or
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: ______________________________________________________________
Within 60 days after the effective date of the Agreement attached as Exhibit A or prior to land disturbance activities, Prospective Developer shall abandon the onsite inactive water
supply well, and any 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: ______________________________________________________________
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 Forsyth County, certifying that, as of said January 1st, the Notice of Brownfields
Property containing these land use restrictions remains recorded at the Forsyth County Register of Deeds office and that the land use restrictions are being complied with as to the
Brownfields Property or the portion of the Brownfields Property for which the LURU is submitted. 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, or each of the owners on whose behalf
a 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 a 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 No. 11.c. 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 any building foundation, asphalt or other soil cap installed or in use pursuant to LUR No. 9 above are being maintained such that they are intact, uncompromised, in good condition
and continuing to serve as barriers to the soil contamination in relation to which they were installed.
☐ 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 attached as Exhibit A to the
Notice 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 Forsyth 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: _________________