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Home My WebLink About19072_Radio Center_LURU Model_20171215NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made: 2017 Name: Radio Center Property Project #: 19072-15-060 Address: 3229 South Boulevard 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 retail, office, open space, recreation, multi-family residential, high-density residential, storage units 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: 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. For the purposes of this Agreement, retail excludes use as a dry cleaner using chlorinated solvents. Office is defined as the provision of business or professional services. Open space is defined as land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways, or detention facilities for stormwater. 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. Multi-family residential is defined as multi-unit human dwellings, such as condominia, or apartments. Ground floor units, single family homes, townhomes, duplexes, or other units with yards are prohibited unless approved in writing by DEQ in advance. 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. Ground floor units are prohibited unless approved in writing by DEQ in advance. 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. Commercial is defined as an enterprise carried on for profit or nonprofit by the owner, lessee or licensee. For the purposes of this Agreement, this excludes use as a dry cleaner using chlorinated solvents. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ The Brownfields Property may not be used for child care centers, 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) or surface water 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 8. ☐ In compliance ☐ Out of compliance Remarks: ______________________________________________________________ No use of the Brownfields Property as specified in LUR 1 may occur until the then-owner of the Brownfields Property conducts representative final grade soil sampling pursuant to a plan approved in writing by DEQ of any area of the Brownfields Property that will not be covered by building foundations, sidewalks, or asphaltic or concrete parking areas and driveways unless otherwise approved in writing by DEQ in advance. ☐ 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 8. ☐ 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; 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: ______________________________________________________________ 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 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 without limitation those resulting from contamination identified in the Environmental Reports; issues related to potential sources of contamination referenced in Exhibit 2 of Exhibit A; 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: ______________________________________________________________ By January 31 of 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 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 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 32314, Page 734.” A copy of any such instrument shall be sent to the persons listed in Section XV (Notices and Submissions) of 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 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 Exhibit A; 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 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 Exhibit A 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 fuel or other fluids customarily used in vehicles, landscaping equipment, and emergency generators; and as constituents of products and materials customarily used and stored in retail, office, open space, recreation, multi-family residential, high-density residential, storage units, or 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: ______________________________________________________________ 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 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 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. 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 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 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. ______________________________________________________________ whether soil caps (hardscape materials, clean soil, stone) and landscaping required by LUR 5 above are being inspected and maintained to prevent erosion and/or human exposure to contaminated soil or other media. ______________________________________________________________ ☐ 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: _________________