HomeMy WebLinkAbout20050_Rite Aid_LURU ModelNC BROWNFIELDS
LAND USE RESTRICTIONS (“LUR”) UPDATE
Year Certification Made: 2017
Name: Rite Aid
Project #: 20050-16-060
Address: 1776 Statesville Ave; 1701-1795 North Graham St.
County: Mecklenburg
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, industrial, retail, high-density residential, restaurant, parking, entertainment, hotel, primary or secondary educational
space, storage unit, amenity space, recreation, institutional, transit 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:
“Office” is defined as the provision of business or professional services;
“Industrial” is defined as the assembly, fabrication, processing, warehousing or distribution of goods or materials;
“Commercial” is defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee;
“Retail” is defined as the sale of goods or services, products, or merchandise directly to the consumer or businesses and includes showrooms, personal service, the sales of food and
beverage products including brewery, farmers market;
“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 shall include related amenities,
such as pools, clubhouses, courtyards, common areas, recreation areas and parking garages. “Area of Potential High Density Residential Use” is depicted on the plat component of the
Notice.
“Parking” is defined as the temporary accommodation of motor vehicles in an area designed for same;
“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;
“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;
“Storage Unit” is defined as spaces that are commercially rented on a short- or long-term basis by consumers and businesses for the storage of personal effects, household goods, equipment
and other non-hazardous materials that are in compliance with all other aspects of this Agreement”;
“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. Activities conducted in the use of the community garden shall not disturb the native soil on the Brownfields Property without prior approval from DEQ;
“Recreation” is defined as indoor and outdoor exercise-related, physically focused, or leisure-related activities, whether active or passive, and the facilities for same, including,
but not limited to, studios, swimming pools, sports-related courts and fields, open space, greenways, parks, playgrounds, walking paths, and picnic and public gathering areas;
“Institutional” is defined as the use of land, buildings or structures for public, non-profit or quasi-public purposes, such as libraries, community centers, primary, secondary or post-secondary
education facilities, Junior Achievement or health care facilities;
“Transit” is defined as a station or stop for the carrying, loading and unloading of passengers, carrying of goods, or materials from one place to another which may also contain pedestrian
walkways, utility easements, railroad crossings, and/or on-street parking areas. Adjacent areas for passenger and employee parking, pick-up, and drop-off.
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
The Brownfields Property may not be used for child care, adult care centers or schools (except for higher educational space including use by institutional/educational organizations such
as Junior Achievement) without the prior written approval of DEQ.
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
Groundwater at the Brownfields 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: ______________________________________________________________
Except for (i) the assessment and use of geothermal wells and existing monitoring wells and applications, and (ii) activities conducted pursuant to the Environmental Management Plan
(“EMP”), and unless compliance with this LUR is waived in writing by DEQ in advance in regard to a 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 without 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. 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 occur only in compliance with any written conditions DEQ imposes for the protection of public health and the environment.
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
No activity that disturbs soil may occur in areas depicted as “Area of Potential Soil Contamination” on the plat component of the Notice of Brownfields Property (“Notice”) without prior
written approval from DEQ. 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 above in LUR No. 1 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;
that is in accordance with an approved Environmental Management Plan (EMP).
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
Within 90 days of the effective date of this agreement, Prospective Developer, or the owner of the Brownfields Property, shall submit to DEQ for approval a plan and schedule for additional
soil sampling in the “Area of Potential Soil Contamination” located in the vicinity
of soil sample SSB-10 as depicted on the plat component of the Notice. If requested by DEQ, based upon the results of the additional soil sampling, Prospective Developer (or the then
owner) shall, within 45 days of receipt of said results, submit a plan and schedule for implementing institutional or engineering controls. Such a plan may include, without limitation,
physical barriers such as fencing, covering the soil with an impervious surface or other cap, and/or soil excavation.
☐ 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. 12 or if removed from or brought onto the adjacent Charlotte Army Missile Plant (CAMP) (the subject of Brownfields Project No.
11044-07-60).
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
No enclosed building may be constructed on the Brownfields Property and the area identified as “Area of Potential Vapor Mitigation” on said plat may not be occupied.; until DEQ determines
in writing the following. Note, this LUR does not apply to the “Area of Potential High Density Residential Use” on the plat component of the Notice.
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: ______________________________________________________________
Surface water at the Brownfields 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, provided however rainwater from roofs may be captured and used for irrigation on the Brownfields Property.
☐ 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 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 (“HHCU”) within the Division of Public Health of the North Carolina Department of Health and Human Services (“DHHS”).
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
No later than one year after the US Army Corps of Engineers agrees to fund the removal under the Formerly Used Defense Site (“FUDS”) program, or prior to the creation of an exposure
pathway, the known USTs, identified in the Brownfields Agreement (“Agreement”; aka Exhibit A) subparagraph 7.i shall be removed or closed in place to the satisfaction of DEQ.
☐ 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 EMP approved in writing by DEQ in advance (and, if warranted, revised
to DEQ’s written satisfaction prior to each subsequent redevelopment phase provided that soil will be disturbed as part of the subsequent redevelopment phase and such redevelopment
activities are not already addressed in an existing approved EMP) 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 to the Agreement; 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
procedures to allow for transfer of soil between the adjacent Charlotte Army Missile Plant (CAMP) Brownfields site (the subject of Brownfields Project No. 11044-07-60) and Rite Aid Brownfields
site.
☐ In compliance ☐ Out of compliance
Remarks: ______________________________________________________________
As part of the Land Use Restriction Update described below in LUR No. 18 for each year following 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 Section V: Work to be Performed in the Agreement;
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 Mecklenburg County land records, Book 32178, Page 669.” A copy of any such instrument shall be sent to the persons listed
in Section XV (Notices and Submissions) of the Exhibit A, though: (i) financial figures related to the conveyance may be redacted; and (ii) such disclosure may be in accordance with
the confidentiality and trade secret provisions of the North Carolina Public Records Law (to the extent applicable). Prospective Developer may use the following mechanisms to comply
with the obligations of this paragraph: (i) If every lease and rider 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, to the persons listed in Section XV (Notices 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 this 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;
in fluids in vehicles;
as constituents of products and materials customarily used and stored in office, warehousing, commercial, retail, high-density residential, restaurant, and parking environments, provided
such products and materials are stored in original retail packaging and used and disposed of in accordance with applicable laws;
for vehicle maintenance, service, car wash and body work in compliance with applicable law (though vehicle parts and tools may not be washed in chlorinated solvents containing any contaminants
known to be present in the environmental media at the Brownfields Property);
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;
as fuel or other fluids customarily used in vehicles, landscaping equipment and emergency generators.
in products or materials that are brought onto the Brownfields Property, kept in their original packaging or in containers < 55 gallons in size (that is, not used or repackaged) and
later removed from the Brownfields Property in the original packaging or containers.
☐ 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 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 Mecklenburg County, certifying that, as of said January 1st, the Notice of
Brownfields Property containing these land use restrictions remains recorded at the Mecklenburg 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;
______________________________________________________________
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; and
______________________________________________________________
whether the existing asphalt and concrete parking lot and building foundations are being maintained such that they are intact, uncompromised, in good condition and continuing to serve
as barriers to prevent human exposure to soil contamination or other media.
______________________________________________________________
whether the “Area of Potential Soil Contamination” properly covered by a physical barrier such as fencing, covering the soil with an impervious surface pursuant to LUR No. 5 and 6 above
remains or other cap, and/or soil excavation.
______________________________________________________________
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.
______________________________________________________________
LURU’s submitted for any portion of the Brownfields Property that contains rental units shall include a list of tenants and their addresses.
______________________________________________________________
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 Mecklenburg 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: _________________