20026_Kaiser Fluid II_LURU Model

NC BROWNFIELDS
Land Use Restrictions (“LUR”) UPDATE
Year CertificationMade:2021Project:
Project Number:
Address:County:Property Owner (In part or whole)/Association:
Read the following LURs/DPLURs 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 or email:
NC Division of Waste Management
Attn: Brownfields Property Management Unit
1646 Mail Service Center
Raleigh, NC  27699-1646
[e-mail] use may be made of the Brownfields Property other than for high density multi-family residential, retail, office, parking, warehouse, industrial, open
space and with prior written DEQ approval, other commercial uses. For purposes of this restriction, the following definitions apply:
High Density Residential is defined as permanent dwellings where multi-family 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 (e.g., privately-owned
courtyards are prohibited), and may include related amenities, such as pools, clubhouses, courtyards, common areas, recreation areas, and parking garages. Note, the only allowable “Area
of Potential High Density Residential Use” is depicted on the plat component of the Notice of Brownfields Property referenced below in paragraph 20. Single family homes are prohibited;
townhomes, duplexes, or other units with yards are prohibited unless approved in writing by DEQ in advance. 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
service.Parkingisdefined as the temporary accommodation of motor vehicles in an area designed for same.Warehousing is defined as the use of a commercial building for storage of goods
by manufacturers, importers, exporters, wholesalers, transport businesses among others, and also refers to the storage of goods and materials for a specific commercial establishment
of a group of establishments in a particular type of industry or commercial activity.Industrial is defined as the assembly, fabrication, processing, warehousing, or distribution of goods
or materials.Open Space is defined as land maintained in a natural or landscaped state and used for natural resource protection, buffers, greenways, detention facilities for stormwater.Commercial
is defined as an enterprise carried on for profit by the owner, lessee, or licensee.
In complianceOut 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. Notwithstanding the foregoing, a business enterprise
is allowed to offer drop-in care as defined in NC Statute § 110-86 (2)(d) and (d1). Drop-in care that is ancillary to the business’ principal use (such as a fitness club or yoga studio)
as a service to its customers.
In complianceOut of compliance
Remarks:
Groundwater and surface water, at the Brownfields Property may not be used for any purpose without the prior written approval of DEQ along with any measures DEQ deems necessary to ensure
that the Brownfields Property will be suitable for the uses specified in LUR 1 above while fully protecting public health and the environment. Should groundwater be encountered or exposed
during any activity on the Brownfields Property, it shall be managed in accordance with the DEQ-approved EMP outlined in LUR 8, or a plan approved in writing in advance by DEQ.
In complianceOut 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” but shall not occur in the “Area of Known PCB Soil Contamination” depicted on the plat component of the Notice of Brownfields
Property referenced in paragraph 20 of the Agreement;
mowing and pruning of above-ground vegetation;
for the 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 complianceOut of compliance
Remarks:
The owner(s) of each portion of the Brownfields Property denominated “Area of Known PCB Soil Contamination” on the plat component of the Notice referenced in paragraph 20 below shall
be responsible for maintaining the asphalt cap over that portion, and for including with each year’s LURU (see LUR 15 below) a certification that the asphalt cap is being properly maintained.
The soil in this portion of the Brownfields Property may not be exposed, except as otherwise approved in writing by DEQ in advance or in accordance with an approved EMP as outlined
in LUR 8.
In complianceOut 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 complianceOut of compliance
Remarks:
No enclosed building may be constructed on the Brownfields Property and no existing building, defined as those depicted on the plat component of the Notice of Brownfields Property referenced
in paragraph 20 of the Ageement, may be occupied until DEQ determines in writing that:
the building is or would be protective of the building’s users and public health from the risk of vapor intrusion based on site assessment data, or a site-specific risk assessment approved
in writing by DEQ; or

a vapor intrusion mitigation system (VIMS) has been:
designed to mitigate vapors for subgrade building features in accordance with the most recent and applicable DWM Vapor Intrusion Guidance, Interstate Technology & Regulatory Council
(ITRC) guidance, and American National Standards Institute (ANSI)/American Association of Radon Scientists and Technologists (AARST) standards, and that said design shall fully protect
public health to the satisfaction of a professional engineer licensed in North Carolina, as evidenced by said engineer’s professional seal, and shall include a performance monitoring
plan detailing methodologies and schedule, both of which are subject to prior written DEQ approval; and
installed and an installation report is submitted for written DEQ approval that includes details on any deviations from the system design, as-built diagrams, photographs, and a description
of the installation with said engineer’s professional seal confirming that the system was installed per the DEQ-approved design and will be protective of public health.
In complianceOut 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 the 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 and 8 or in Exhibit 2 of 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); andplans for the proper characterization of, and, as necessary, disposal of contaminated soils excavated during
redevelopment.
In complianceOut of compliance
Remarks:No later than January 30 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 on the Brownfields Property in accordance with Section V: Work to be Performed 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; andremoval 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 complianceOut 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 complianceOut 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 36300, Page 127.” A copy of any such instrument shall be sent to the persons
listed in Section XV (Notices and Submissions), 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 (Notices and Submissions); 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.
In complianceOut 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.
In complianceOut of compliance
Remarks:Within 30 days prior to land disturbance activities that will impact existing groundwater monitoring wells, injection wells, recovery wells, piezometers and other manmade points
of groundwater access at the Brownfields Property, Prospective Developer shall notify DEQ that it is ready to effect the abandonment of those wells that are located in the area of land
disturbance, in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative Code, unless an alternate schedule is approved by DEQ. Unless DEQ notifies Prospective
Developer within 10 days of receiving such notification to refrain from such abandonment, Prospective Developer shall, on a schedule acceptable to DEQ, effect said abandonment and, within
30 days after doing so, provide DEQ a report, subject to DEQ approval, setting forth the procedures and results.
In complianceOut of compliance
Remarks:The owner of any portion of the Brownfields Property where subsequently installed, DEQ-approved monitoring well is damaged by the owner, its contractors, or its tenants shall
be responsible for the 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 complianceOut of compliance
Remarks:During January of each year after the year in which the Notice referenced in paragraph 20 of the Agreement is recorded, the owner of any part of the Brownfields Property as of
January 1stof 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. 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 or board, association or approved entity submitting the LURU if said owner
or each of the owners on whose behalf the 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 the joint LURU is submitted
transferred any part of the Brownfields Property during the previous calendar year for properties covered under a joint LURU, this portion is not required;
whether the “Area of Known PCB Soil Contamination” pursuant to LUR 5 above remains properly covered by impervious surface. They 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;
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;
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; and
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 complianceOut of compliance
Remarks:
In order to remain compliant with the recorded Declaration of Perpetual Land Use Restrictions (“DPLUR”) as put forth by the Environmental Management Commission regarding a 15A NCAC 2L
variance, the following restrictions also apply:Groundwater beneath the Site shall not be used as a source or irrigation water. The installation of groundwater wells or other devices
for access to groundwater for any purpose other than monitoring groundwater quality is prohibited without prior approval by the Director of the Division of Waste Management of the North
Carolina Department of Environment and Natural Resources (the “Director”).
In complianceOut of compliance
Remarks:No expansion of any building in existence on or prior to November 8, 2007, nor any building constructed after November 8, 2007 may be used until mechanical ventilation with outdoor
air is provided in compliance with the most current version of the Mechanical Ventilation section of the Ventilation chapter of the North Carolina State Building Code (“Code”) notwithstanding
any exceptions the Code. Within thirty (30) days following installation of the subject mechanical ventilation in a new building, or modification of a mechanical ventilation system in
connection with expansion of an existing building, a professional engineer licensed in North Carolina shall provide to the Director certification under seal that the ventilation system
was installed in accordance with its design specification and complies with the Code.
In complianceOut of compliance
Remarks:The then-current owner of any portion of the Site shall submit a letter report, containing the notarized signature of the owner, in January of each year on or before January
31st, to the Director, confirming that this Declaration is still recorded in the Office of the Mecklenburg County Register of Deeds and that activities and conditions at the Site remain
in compliance with the land use restrictions herein.
In complianceOut of compliance
Remarks:No person conduction environmental assessment or remediation at the Site, or involved in determining compliance with applicable land use restrictions, at the direction of, or
pursuant to a permit or order issued by, the Director may be denied access to the Site for the purpose of conducting such activities.
In complianceOut of compliance
Remarks:The then-current owner of any portion of the Site shall cause the instrument of any sale, lease, grant, or other transfer of any interest in the Site to include a provision expressly
requiring the lessee, grantee, or transferee to comply with this Declaration. The failure to include such provision shall not affect the validity or applicability of any land use restriction
in this Declaration.
In complianceOut of compliance
Remarks:
Notarized signing and submittal of this LUR Update and letter report constitutes certification that the Notice of Brownfields Property and the Declaration of Perpetual Land Use Restrictionsremains
recorded at theCounty Register of Deeds offices and that the LURs and DPLURs are being complied with.
This LUR Update and letter report is certified by, the owner of at least part of the Brownfields Property, or if appropriate another entity on behalf of some or all owners, 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:
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 NotaryNotary’s printed or typed name, Notary Public(Official Seal)My commission
expires: