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Home My WebLink About20056_Retreat at Renaissance_LURU Model_20171025NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2017 Name: Retreat at Renaissance Project #: 20056-16-092 Address: 398 South Franklin Street 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 residential townhome development, commercial, office, open space, and associated amenities and parking. For purposes of this restriction, the following definitions apply: “Townhome development” refers to residential use for single-family attached dwelling units, including hardscaped amenities and accessory structures, in which all portions of the Brownfields Property outside of the footprint of: (a) the dwelling structure; (b) hardscaped amenities; (c) accessory structures, and d) platted lot are owned by a common homeowners association and not by individual townhouse owners; “Accessory structures” refer to buildings associated with the dwelling unit(s) that are constructed over an impermeable surface such as a concrete slab for uses such as a parking garage or storage shed; “Amenities” refers to hardscaped and landscaped courtyard and seating areas. Any such courtyard feature shall not disturb native soil at the Brownfields Property without prior approval from the Department of Environmental Quality (“DEQ”); “Hardscaped amenities” refers to man-made, impervious features used in landscape architecture, such as walkways, entrance areas, steps, fountains, courtyards, patios and paths; and “Commercial” refers to an enterprise carried on for profit or nonprofit by the owner, lessee, or licensee. “Office” refers to the location where the provision of business or professional services takes place. “Open space” refers to land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways, detention facilities for stormwater. “Parking” refers to the temporary accommodation of motor vehicles in an area designed 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 removal of on-site soil contaminated by storm drainage runoff in the western portion of the Brownfields Property and associated confirmatory soil samples, and 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); contingency plans for addressing newly discovered potential sources of environmental contamination (e.g., tanks, drums, septic drain fields); plans for the proper characterization of and, as necessary, disposal of contaminated soils excavated during redevelopment; and a requirement for representative final grade sampling, to the written satisfaction of DEQ, of the areas within the footprint of the planned townhomes on the Brownfields Property that are not covered by building foundations, sidewalks, or asphaltic or concrete parking areas and driveways. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ By January 31st after each one-year anniversary of 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), 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 in accordance with the plan required by LUR No. 2 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 Brownfields Property (copies of all legally required manifests shall be included). ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ Prior to the occupation of any dwelling to be constructed on the Brownfields Property, the Brownfields Property shall be subject to a declaration of covenants, conditions, and restrictions, or a functionally equivalent instrument recorded, or to be recorded, in the Wake County Public Registry (the “Declaration”), and a homeowners association, a lot owners association, or similar entity associated with the Brownfields Property (“Property Association”) shall be established: The Declaration described above shall provide that all owners of all or part of the Brownfields Property shall strictly comply with the terms and conditions of the Agreement attached as Exhibit and the Notice of Brownfields Property (“Notice”). For the purposes of NCGS §130A-310.35(f), which authorizes various persons to enforce land use restrictions, the Declaration shall provide that the Property Association is such a person so authorized by the Act to administer and enforce the land use restrictions as an owner of land and as a person eligible for liability protection pursuant to the Act. Further, the Declaration shall provide that the Property Association has the authority to administer and enforce the land use restrictions on behalf of all lot owners and members of the Property Association. The Declaration shall give the Property Association the authority, to the extent permissible under North Carolina law, to treat any violation of the terms and conditions of the Agreement as Exhibit A to Notice of Brownfields Property, by any owner of any part of the Brownfields Property as a violation of the Declaration and to undertake any and all enforcement remedies provided in the Declaration for such a violation. The Declaration shall provide that, in the event of a violation of the Agreement attached as Exhibit A or the Notice of Brownfields Property by any owner of any part of the Brownfields Property, the Property Association will undertake reasonable enforcement actions to correct said violation. Furthermore, the Declaration shall specifically provide that failure by any owner of any part of the Brownfields Property to remedy or correct such violations of the Agreement attached as Exhibit A and the Notice of Brownfields Property after any applicable notice and cure periods to the reasonable satisfaction of DEQ could result in that owner’s loss of liability protection afforded by the Agreement and the Act. The portions of the Declaration, and the portions of the bylaws of the Property Association, pertaining to the subject matter of these land use restrictions shall be prepared in consultation with DEQ and then provided to DEQ for review and comment as to the subject matter of these land use restrictions, which shall not be unreasonably withheld, conditioned, or delayed. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The Brownfields Property may not be used as a playground, or for child care centers or schools, except in areas where a minimum of one foot of clean, compacted fill, or another cover approved in writing in advance by DEQ, are installed to DEQ’s written satisfaction, delineated to DEQ’s written satisfaction as “Approved for “Playground,” “Child Care Center” or “School” areas on the plat component of the Notice attached as Exhibit B, maintained, and left undisturbed other than through normal playground, child care center or school use. ☐ 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: ______________________________________________________________ No activity that disturbs soil on the Brownfields Property “Area of Potential Soil Contamination” as delineated on the plat component of the Notice of Brownfields Property attached as Exhibit B, 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 an approved Environmental Management Plan as required in LUR No. 2; in connection with landscape planting to depths not exceeding 24 inches; mowing and pruning of above-ground vegetation; and 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. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No building may be constructed on the Brownfields Property until: 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: ______________________________________________________________ None of the contaminants known to be present in the environmental media at the Brownfields Property, including those appearing in paragraph 7 of the Exhibit A, may be used or stored at the Brownfields Property without the prior written approval of DEQ, except: in de minimis amounts for cleaning and other routine housekeeping activities; 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; and/or as constituents of products and materials customarily used and stored in mixed commercial and residential 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: ______________________________________________________________ Any deed or other instrument conveying an interest in the Brownfields Property executed by an owner of any interest in the Brownfields Property shall contain the following notice: “The property which is the subject of this instrument is subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Wake County land records, Book 16930, Page 1958.” 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. An owner may use the following mechanisms to comply with the obligations of this paragraph,: 1) If every deed, lease and/or rider is identical in form, the owner may provide DEQ with copies of a form deed, lease or rider evidencing compliance with this paragraph, in lieu of sending copies of actual, executed deeds or leases, to the persons listed in Section XV (Notice and Submissions) of the Exhibit A; and 2) the owner 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: ______________________________________________________________ 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 Property. ☐ 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 referenced in paragraph 19 of Exhibit A 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, if said owner transferred any part of the Brownfields Property during the previous calendar year; ______________________________________________________________ a description of any known violations or enforcement actions taken or planned in order to correct violations consistent with the land use restrictions above; and ______________________________________________________________ whether any vapor barrier and/or mitigation systems installed pursuant to subparagraph LUR No. 8.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. ______________________________________________________________ ☐ 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: ______________________________________________________________ A property owners’ association or other entity may perform this LURU’s duties, on behalf of some or all owners of the Brownfields 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 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: _________________