19067_Gateway Plaza Shopping_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 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]
No use shall be made of the Brownfields Property’s existing structures, as delineated on the plat component of the Notice of Brownfields Property referenced in paragraph 20 below, (before
or after renovation) other than for hotel, retail, restaurant, brewery, food production facility, office space, rental storage, event/performance/exhibition space, and associated parking,
and subject to the Department of Environmental Quality’s (“DEQ”) prior written approval, other commercial uses, including childcare, drop-in childcare, educational spaces, or senior
facility use, although use of any existing building, or portion thereof, for childcare, drop-in childcare, schools, or senior facilities, or occupancy of the Gateway Arts building, is
prohibited unless the uses in the affected space are in compliance with the provisions in LUR 8 below. Residential use of the existing structures is prohibited. In addition to those
approved uses for the existing buildings above, new construction may also include high density residential, childcare, drop-in childcare, educational spaces, or senior facilities, although
such uses are prohibited unless said new construction is in compliance with LUR 8 below. For purposes of this restriction, the following definitions apply:
“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.
“Retail” is defined as the sale of goods or services, products, food, beverage, refreshments, or merchandise directly to the consumer or businesses and includes showrooms, personal service,
restaurants, and the sales of food and beverage products, although there is a prohibition on the use of chlorinated solvents in drycleaner or other retail or commercial operations.
“Restaurant” is defined as a commercial business establishment that prepares and serves food and beverages to patrons.
“Brewery” or “Food Production Facility” is defined as an establishment for the manufacture, sale and distribution of beverages or food products, including without limitation beer and
ale, together with associated public roadways and related infrastructure.
“Office” is defined as to the provision of business or professional services;
“Rental Storage” is defined as enclosed 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 the Agreement.
“Event/performance/exhibition space” is defined as venues for public events, artistic performances, or galleries for displaying art or similar public gathering space.
“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 (e.g., privately-owned courtyards
are prohibited), and may include related amenities, such as pools, clubhouses, courtyards, common areas, recreation areas and parking garages. Single family homes are prohibited and
townhomes, duplexes, or other units with yards are prohibited unless approved in writing by DEQ in advance.
“Parking” is defined as the temporary accommodation of motor vehicles in an area designed for same.
“Commercial” is defined asan enterprise carried on for profit or nonprofit by the owner, lessee or licensee although there is a prohibition on the use of chlorinated solvents in drycleaner
or other retail or commercial operations.
“Childcare” is defined as the care and supervision of children by adults in a non-profit or profit-based setting as defined in NCGS §110-86(2).
“Drop-in childcare” is defined as short-term care for children that is excluded from the definition of childcare in LUR 1.k, and is provided while parents participate in activities that
are not employment related and where the parents are on the premises or otherwise easily accessible, or is that provided by an employer for its part-time employees under the conditions
specified in NCGS §110-86(2)d and §110-86(2)d1.
“Educational space” is defined as interior space which is occupied by a privately or publicly owned institution that provides education to elementary and older students.
“Senior care facilities” is defined as assisted care, memory care, or skilled nursing facilities that house the elderly and which routinely provide for the diagnostics, care, treatment,
and testing for physical or psychological injury or illness, or disability, and for the overnight boarding of patients, either on a for-profit or not-for-profit status.
In complianceOut 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 without limitation those resulting from contamination identified in the Environmental Reports;
issues related to potential sources of contamination referenced 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); and
plans for the proper characterization of, and as necessary, disposal of contaminated soils excavated during redevelopment.
In complianceOut of compliance
Remarks:
By January 31st annually after 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; 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 complianceOut of compliance
Remarks:
Unless compliance with this land use restriction 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 referenced in paragraph 20 of the Agreement shall be 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 within the Division of Public Health of the North Carolina Department
of Health and Human Services.
In complianceOut of compliance
Remarks:
Groundwater at the Brownfields Property may not be used for any purpose without the prior written approval of 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 30 inches;
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;
in connection to work conducted in accordance with a DEQ-approved EMP as outlined in LUR 2 above; or
in connection with the routine maintenance, upkeep, upfit, or cosmetic upgrades to the current structures, parking lot maintenance or upgrade, as long as these activities are conducted
outside of the “Area of Shallow Soil Contamination” as depicted on the plat component to the Notice of Brownfields Property referenced in paragraph 20 of the Agreement, comply with all
other land use restrictions set forth in the Agreement, and that such soil disturbance extends no deeper than 30 inches below grade.
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 2.
In complianceOut of compliance
Remarks:
With respect to the use of buildings at the Brownfields Property, the following limitations shall apply:
No existing building, defined as those depicted on the plat component of the Notice of Brownfields Property referenced in paragraph 20 of the Agreement, may be occupied by residential,
childcare, drop-in childcare, educational space, or senior care facilities, and no occupancy of the Gateway Arts Building may occur, 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 mitigation measures are designed, installed, and implemented in a manner that will fully protect public health 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, and to DEQ.
The design specifications shall include methodology(ies) for demonstrating performance of said measures and long-term operation and maintenance requirements. If the measures that the
DSCA program intends to install or modify meet the performance requirements of this subparagraph to the written satisfaction of DEQ, then those measures may be considered as sufficient
to meet the requirements of this subparagraph. Both parties hereby acknowledge that the DSCA Program is not a party to the Agreement; compliance with the provisions of this land use
restriction may be met by the measures that the DSCA Program intends to install or modify, but the DSCA Program is not installing or modifying those measures pursuant to the Agreement
nor is it subject to the authority of the Brownfields Program; and that the DSCA Program intends to install or modify measures on the Brownfields Property under the authority and subject
to the requirements and limitations set forth in N.C. Gen. Stat. 143-215.104A et seq., and the Rules promulgated thereunder.
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 mitigation measures are designed, installed, and implemented in a manner that will fully protect public health 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, and to DEQ.
The design specifications shall include methodology(ies) for demonstrating performance of said measures and long-term operation and maintenance requirements.
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 amounts for cleaning and other routine housekeeping activities;
as constituents of products and materials customarily used and stored in hotel, retail, restaurant, brewery, office space, rental storage, event/performance/exhibition space, or if approved,
other commercial, high density residential, childcare, drop-in childcare, or educational space environments, provided such products and materials are stored in original retail packaging
and used and disposed of in accordance with applicable laws; or
as fuel or other fluids customarily used in vehicles, landscaping equipment and emergency generators.
In complianceOut of compliance
Remarks:
The Brownfields Property may not be used as an outdoor park or for outdoor sports of any kind, including, but not limited to, golf, football, soccer and baseball, without the prior written
approval of DEQ. This restriction does not include informal outdoor sports activities that take place on impervious surfaces (i.e. miniature golf, shuffleboard, etc.).
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 Wake County land records, Book 18421, Page 1069.” A copy of any such instrument shall be sent to the persons listed in
Section XV (Notices and Submissions), though financial figures 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 (Notice 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:
Within 60 days after the effective date of the Agreement or prior to land disturbance activities, Prospective Developer shall abandon monitoring wells, injection wells, recovery wells,
piezometers and other manmade points of groundwater access at the Brownfields Property, except those wells identified by DSCA as being necessary for continued monitoring, i.e. monitoring
wells MW-1R, MW-2, MW-3, MW-4, MW-5, MW-8, MW-9, MW-10, MW-11, MW-12, MW-13, MW-14, MW-17, and DMW-18, in accordance with Subchapter 2C of Title 15A of the North Carolina Administrative
Code, unless an alternate schedule is approved by DEQ.  Within 30 days after doing so, the Prospective Developer shall provide DEQ a report, setting forth the procedures and results.

In complianceOut of compliance
Remarks:
Other than the abandonment of certain on-site monitoring wells as described in LUR 12 above, the owner of any portion of the Brownfields Property where any existing, or subsequently
installed, DEQ-approved monitoring well is damaged 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 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:
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
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 certifying that the land
use restrictions are being complied with, and stating:
the name, mailing address, telephone number, and contact person’s e-mail address of the owner submitting the LURU if said owner acquired any part of the Property during the previous
calendar year;
the transferee’s name, mailing address, telephone number, 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 8.a.iii. or 8.b.iii. 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 complianceOut 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 complianceOut of compliance
Remarks:
LURU’s submitted for any portion of the Brownfields Property that contains rental units shall include a list of tenants and their addresses.
In complianceOut 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 Agreement provided that if standard form leases are used in every instance, a copy of such standard form lease may be sent in lieu of copies
of actual leases.
In complianceOut 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 complianceOut of compliance
Remarks:
Notarized signing and submittal of this LUR Updateconstitutes certification that the Notice of Brownfields Propertyremains recorded at theCounty Register of Deeds offices and that the
LURsare being complied with.
This LUR Update 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: