18038_AquAir II_LURUModel_2015_12_02

NC BROWNFIELDS

LAND USE RESTRICTIONS (“LUR”) UPDATE

Year Certification Made:2017

Name: Address:
AquAir II 13300 Sam Neely Road
Project #: County:
18038-14-060 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
Brownfields Program
1646 Mail Service Center
Raleigh, NC 27699-1646

LUR 1:No use may be made of the Brownfields Property other than for industrial,
office, retail, multi-family residential, and, if the Department of Environment and Natural
Resources (“DENR”) issues prior written approval, other commercial uses. For purposes of this
restriction, the following definitions apply.

a.“Industrial” refers to the assembly, fabrication, processing, warehousing or
distribution of goods or materials.

b.“Office” refers to the rendering of business or professional services.

c.“Retail” refers to the sale of goods, products, or merchandise directly to the
consumer.

d.“Commercial” refers to a business enterprise. Child care centers or adult care
centers are prohibited.

e.“Multi-Family Residential” refers to a condominium, town home, apartment, loft
unit or other multi-family structure used as a human dwelling. Single family homes
are prohibited. Multi-family residential is depicted on the plat component of the
Notice.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 2:Physical redevelopment of the Brownfields Property located west of the
Southern Railroad Right of Way 1) in the “Area of Potential Soil Contamination” or 2) multi-
family residential, as delineated on the plat component of the Notice, may not occur other than in
accord, as determined by DENR, with an Environmental Management Plan approved in writing
by DENR in advance (and revised to DENR’s written satisfaction prior to each subsequent
redevelopment phase) that is consistent with all the other land use restrictions and describes

AquAir II (#18038-14-060)
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:

a.soil and water management issues, including without limitation those resulting
from contamination identified in the Environmental Reports;

b.issues related to potential sources of contamination referenced in Exhibit 2 to the
Notice of Brownfields Property; and

c.contingency plans for addressing newly discovered potential sources of
environmental contamination (e.g., tanks, drums, septic drain fields).

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 3:Within 90 days after each one-year anniversary of the effective date of the
Brownfields 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(s) of the Brownfields Property shall provide DENR a report(s)
subject to written DENR approval on environment-related activities at the Brownfields Property
since the last report, with a summary and drawings, that describes:

a.actions taken in accordance with the plan required by LUR 2 above;

b.soil grading and cut and fill actions;

c.methodology(ies) employed for field screening, sampling and laboratory analysis
of environmental media;

d.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

e.
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: ______________________________________________________________

LUR 4:Surface water, other than in connection with legally compliant storm water
collection and reuse techniques, may not be used at the Brownfields Property for any purpose
without the prior written approval of DENR.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

AquAir II (#18038-14-060)

LUR 5:Unless compliance with this LUR is waived in writing by DENR 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) may occur on the Brownfields

Propertywithout prior sampling and analysis of groundwater to the written satisfaction of DENR
in any areas proposed for such activities, and submittal of the analytical results to DENR. 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 DENR imposes.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 6:Beginning in January \[2016\] following the year in which the Notice of
Brownfields Property (“Notice”) is recorded, and for a minimum of five (5) annual sampling
events \[2016 to 2021\], the owner(s) of the Brownfields Property where the below referenced wells
are located shall effect sampling of monitoring wells AMW-102, AMW-104, AMW-103, and
AMW-108 and sampling of the adjacent stream from an upgradient location and a location near
well AMW-108 in accordance with the most current version of the Guidelines of the Inactive
Hazardous Sites Branch of DENR's Superfund Section. The groundwater and stream samples
collected shall be analyzed by U.S. Environmental Protection Agency’s Method 8260 or by
another method approved in advance, in writing, by DENR or its successor in function. After the
completion of the five year period, the owner(s) of the Brownfields Property where the wells are
located shall prepare and submit to DENR an updated receptor survey to the satisfaction of DENR,
and may submit to DENR a request to terminate such sampling including the public health
rationale for such termination. The then owner(s) of the Brownfields Property where the wells are
located shall sample and maintain the wells identified in this \[LUR\]. If one or all of the wells
identified in this paragraph need to be abandoned for Brownfields Property redevelopment
purposes, the then owner of the Brownfields Property that contains the well(s) shall notify DENR
at least 30 days in advance of the abandonment and the wells shall be abandoned in accordance
with applicable regulations. In the abandonment notification, the then Brownfields Property owner
shall provide for DENR review and approval a rationale as to why the well(s) do not need to be
replaced or the proposed location and construction details of a replacement well or wells.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

AquAir II (#18038-14-060)

LUR 7:During physical redevelopment and onward, no activity that disturbs soil on the
Brownfields Property located west of the Southern Railroad Right of Way in the “Area of Potential
Soil Contamination” as delineated on the plat component of the Notice, may occur unless and until
DENR states in writing, in advance of the proposed activity, that said activity may occur if carried
out along with any measures DENR 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 de minimis soil removals to depths not exceeding 6
inches, mowing and pruning of above-ground vegetation; and, for emergency repair of
underground infrastructure, provided that DENR shall be given written notice (if only by email)
of any such emergency repair no later than the next business day, and that any related assessment
and remedial measures required by DENR shall be taken.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 8:No building may be constructed on the Brownfields Property, unless and until
DENR determines in writing that:

a.the building would be sufficiently distant from (1) the Brownfields Property’s
known groundwater and/or soil contamination (2) and potential off-site sources that
are migrating on-site that the building’s users, public health and the environment
will be protected from risk from vapor intrusion related to said contamination; or

b.a plan for a vapor intrusion mitigation system, approved in writing by DENR in
advance and including a proposed performance assessment for demonstration of
the system’s protection of the building’s users, public health and the environment
from risk from vapor intrusion, is implemented to the satisfaction of a North
Carolina-licensed professional engineer as reflected by implementation
documentation sealed by said engineer.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 9:None of the contaminants known to be present in the environmental media at the
Brownfields Property, including those appearing in Exhibit 2 to the Notice, may be used or stored
at the Brownfields Property without the prior written approval of DENR, except in de minimis
amounts for cleaning and other routine housekeeping activities, for vehicle maintenance and
service in compliance with applicable law (although vehicle parts and tools may not be cleaned in
solvents containing any contaminants known to be present in environmental media at the
Brownfields Property), and fuel and other fluids customarily used in vehicles, construction
equipment, landscaping equipment and emergency generators.

In compliance Out of compliance
☐☐

AquAir II (#18038-14-060)

Remarks: ______________________________________________________________

LUR 10:The Brownfields Property may not be used for agriculture or grazing, without
the prior written approval of DENR.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 11:The Brownfields Property may not be used as a park, playground, or for sports
of any kind, including, but not limited to, golf, football, soccer and baseball, without the prior
written approval of DENR.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 12:The owner of any portion of the Brownfields Property where any existing, or
subsequently installed, DENR-approved monitoring well is damaged shall be responsible for
repair of any such wells to DENR’s written satisfaction and within a time period acceptable to
DENR, unless compliance with this LUR is waived in writing by DENR in advance.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 13:Neither DENR, 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 DENR, 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: ______________________________________________________________

AquAir II (#18038-14-060)

LUR 14:During January of each year after the year in which the Notice is recorded, the
st
owner of any part of the Brownfields Property as of January 1 of that year shall submit a notarized
Land Use Restrictions Update (“LURU”) to DENR, and to the chief public health and
st
environmental officials of Mecklenburg County, certifying that, as of said January 1, 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:

a.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.
______________________________________________________________

b.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.
______________________________________________________________

c.in the case of the owner of the part of the Brownfields Property affected by LUR 6
above, the results of the sampling required by said LUR (attach results), and

d.whether any vapor barrier and/or mitigation systems installed pursuant to LUR 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.
______________________________________________________________

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: __________________

AquAir II (#18038-14-060)
\[Note: additional entities or owners may be added if appropriate (i.e. multiple managing members/entities)\]

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: _________________