Loading...
HomeMy WebLinkAbout20028_Alcatel Facility_LURU Model_20171024NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2017 Name: Alcatel Facility Project #: 20028-16-092 Address: 2912 Wake Forest Road County: Wake 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 office, including health-related professional offices; retail; hotel; fitness club; entertainment; restaurant; and subject to the Department of Environmental Quality’s (“DEQ”) prior written approval, other commercial uses; associated parking uses; with potential high-density residential use limited to areas of the Brownfields Property that are excluded from the RCRA Permit (Permit No. NCD 003185238) in effect on the Brownfields Property. Therefore, residential use is strictly prohibited on Lot 1 of the Brownfields Property. For purposes of this restriction, the following definitions apply: “Office” is defined as the location where the provision of business or professional services occurs, including providers of short-term educational tutoring where children are present only for short durations of time. “Health-related professional offices” are defined as the location where medical, dental, optical or other health-related professional personnel provide medical, dental, optical, or other health-related services to patients. “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. Dry cleaning operations, other than drop off locations or dry cleaning operations which do not use PCE, may not be operated on-site. “Hotel” is defined as the provision of overnight lodging to paying customers, and to associated food services, gym, reservation, cleaning, utilities, parking and on-site hospitality, management and reception services. “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 for health and physical fitness purposes, and is also known as a health club, gym, or exercise studio. “Entertainment” is defined as private, public, and community activities (such as, for example, festivals, theater, musical events or shows), which may include food and beverage service; “Restaurant” is defined as a commercial business establishment that prepares and serves food and beverages to patrons including outside dining; “Commercial” is defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee. “Parking” is defined as the temporary accommodation of motor vehicles in an area designed for same. “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 amenities, such as pools, clubhouses, courtyards, common areas, recreation areas and parking garages. ☐ 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 Brownfield 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 7 of the Brownfields Agreement (“Agreement”, aka Exhibit A) and its Exhibit 2; contingency plans for addressing 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: ______________________________________________________________ Within 90 days after each one-year anniversary of the effective date of this 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), 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 the Work to Be Performed section of the 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: ______________________________________________________________ Groundwater at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ, except with respect to the current or future groundwater monitoring performed by Alcatel-Lucent USA, Inc. pursuant to its RCRA Hazardous Waste Permit (NCD 003185238), and other than in connection with legally compliant storm water collection and reuse techniques. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ If DEQ determines that the holder of the Brownfields Property’s RCRA Part B Permit has failed to comply with the requirements imposed on it by said permit (including without limitation the requirement to complete the assessment, remediation and/or monitoring requirements of said permit and the requirement to maintain financial assurance), and that the holder continues to fail to do so after notice from DEQ, DEQ may require the then-owner of the portion(s) of the Brownfields Property subject to the RCRA Permit to conduct active assessment, remediation and/or monitoring of such portions(s) of the Brownfields Property in compliance with the RCRA Part B Permit. ☐ 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 written satisfaction, unless conducted in accordance with an approved EMP as outlined in LUR No. 2 above. ☐ 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: ______________________________________________________________ Any and all stream restoration activities conducted on the Brownfields Property shall be implemented in accordance with requirements imposed by the United States Army Corps of Engineers and/or the North Carolina Division of Water Quality. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Lot 1 of the Brownfields Property may not be used for child care, adult care centers or schools without the prior written approval of DEQ, unless the child care was solely provided as short-term indoor care that is ancillary to a use which is allowed herein, such as a fitness club or tutoring facility. ☐ 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 Wake County land records, Book 16890, Page 1795.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions) of the Exhibit A, 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 or rider (as applicable) 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 or riders, to the persons listed in Section XV (Notice and Submissions) of the Exhibit A; 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 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 Exhibit 2 of the Agreement 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 office, health-related professional office, retail, hotel, fitness club, entertainment; restaurant; commercial, and if applicable, high density residential environments, provided such products and materials are stored in original retail packaging and used and disposed of in accordance with applicable laws; 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 30 days prior to land disturbance activities that will impact existing wells unless an alternate schedule is approved by DEQ, the Prospective Developer shall coordinate with Alcatel-Lucent USA, Inc. to abandon monitoring wells, injection wells, recovery wells, piezometers and other man-made points of groundwater access at the Brownfields Property, except if their location permits, for monitoring wells that are required for compliance with RCRA Permit No. NCD 003185238 (modified approved April 11, 2017), in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code. Prospective Developer shall, on a schedule acceptable to DEQ, effect said abandonment of those monitoring wells that are no longer needed for compliance with the RCRA Permit (MW-2dr, MW-11s, MW-17i, MW-19i, MW-20i, MW-22i), and of those wells required under the RCRA Permit that must be abandoned to avoid damage or loss during construction activities (MW-2s, MW-3s, MW-3d, MW-4s, MW-4d, MW-12s, MW-16d, MW-22s, MW-18i, MW-21i, MW-23s, MW-24s, MW-24d) and, within 30 days after doing so, Alcatel-Lucent USA, Inc. and/or Prospective Developer shall provide DEQ a report, setting forth the procedures and results. With respect to the wells to be abandoned to allow construction activities, monitoring wells MW-2s, MW-3s, MW-3d, MW-4s, MW-4d, MW-12s, MW-16d, MW-22s, MW-18i, MW-21i, MW-23s, MW-24s, and MW-24d shall be re-installed by the Prospective Developer, on a schedule acceptable to DEQ, for future monitoring to be performed by Alcatel-Lucent USA, Inc. pursuant to its RCRA Permit regulated by the DEQ RCRA Hazardous Waste Section. Replacement wells shall be constructed in the same manner as the original wells, with screened intervals at the same elevations, although surface completions may vary from the original construction based on the redeveloped landscape and other localized restrictions. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Upon completion of the well abandonment activities described in LUR No. 13 above, 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 LUR 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 Wake County, certifying that, as of said January 1st, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Wake 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, is 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. 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. ______________________________________________________________ ☐ 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 Brownfields Agreement, provided that if standard form leases or riders are used in every instance, a copy of such portions of such a standard form lease or rider 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, or another person or entity approved in advance by DEQ. Such joint LURU shall include the name, mailing address, telephone and facsimile numbers, and contact person’s email address of the entity or person submitted 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 Wake 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: _________________