18067_Wurst Property_LURUModel_2016_12_20

NC BROWNFIELDS

LAND USE RESTRICTIONS (“LUR”) UPDATE

Year Certification Made:2017

Name:
Wurst PropertyAddress:

810 Lufkin Road
Project #: County:
18067-14-092 Wake

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

LUR 1:No use may be made of the Brownfield Property other than for warehousing,
office, or light industrial use, and subject to the Department of Environmental Quality’s (“DEQ”)
prior written approval, other commercial uses, and associated parking, with potential future
redevelopment to include educational uses other than pre-school, primary, middle, or secondary
school use unless that school use complies with LUR Nos. 6, 7, 8 and 9 below. For purposes of
this restriction, the following definitions apply:

a."Warehousing" refers to the use of a building for the storage of goods by
manufacturers, importers, exporters, wholesalers, transport businesses among
others, and also refers to the storage of good and materials for a specific commercial
establishment or a group of establishments in a particular type of industry or
commercial activity.;

b."Office" refers to the use of space to provide business or professional services;

c."Industrial" refers to the steps in the manufacturing or production process such as
assembly, fabrication, processing, storage, warehousing, and distribution of goods
or materials.

d."Commercial" refers to an enterprise carried on for profit by the owner, lessee or
licensee.

e."Educational" refers to the use of land, buildings or structures for post-secondary
education facilities, which refers to a privately-owned or publicly-owned
university, college, junior college, or community college that provides education
beyond the high school level, and if in compliance with LUR Nos. 6, 7, 8 and 9
below, pre-schools, primary, middle, or secondary schools.

f."Parking" refers to the temporary accommodation of motor vehicles in an area
designed for same.

In compliance Out of compliance
☐☐

Form revised: 8-1-2016

Wurst Property (#18067-14-092) LUR Update
Remarks: ______________________________________________________________

LUR 2:Physical redevelopment of the Brownfields Property may not occur other than
in accord, as determined by DEQ, with a Living Environmental Management Plan 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:

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 paragraph 8 of the
Brownfields Agreement (“Agreement”) attached as Exhibit A to the Notice of
Brownfields Property (“Notice”); 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:By January 31 of each year after the effective date of the Agreement (August 30,
2016) 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:

a.actions taken in accordance with the plan required by LUR No: 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: ______________________________________________________________

Wurst Property (#18067-14-092) LUR Update

LUR 4:No activities that encounter, expose, remove or use surface water or groundwater
(for example, installation of water supply wells, fountains, ponds, lakes or swimming pools, or
construction or excavation activities that encounter or expose groundwater) 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 No. 1 above while fully
protecting public health and the environment.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 5:Within 60 days after the effective date of the Agreement or prior to land
disturbance activities, unless an alternate schedule is approved by DEQ, the monitoring wells,
injection wells, recovery wells, piezometers and other man-made points of groundwater access at
the Brownfields Property shall be abandoned in accordance with Subchapter 2C of Title 15A of
the North Carolina Administrative Code, except: i) those wells at the Brownfields Property that
are required for regulatory compliance as referenced in the Hazardous Waste Management Permit
(Permit No. NCD 042 892 067-R3, July 20, 2007) issued by the Division of Waste Management
to the Cooper Hand Tools Apex Operation for post-closure and compliance activities at the
adjacent Cooper Tools (aka Apex Tools) property; ii) monitoring wells MW-1, MW-1D, MW-2
and MW-2D; and iii) MW-3 and MW-3D, which may remain in operation at Prospective
Developer's election until such time that DEQ desires them to be abandoned. Within 30 days after
so performing said abandonment, the property owner shall provide DEQ a report, setting forth the
procedures and results.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 6:Soil disturbances must be handled in accordance with an approved Living
Environmental Management Plan as required in LUR No. 2 above, including subsequent DEQ
approved modifications to that plan. In the event the Brownfields Property is redeveloped for
educational use, the landfarmed soil area as delineated on the plat attached as Exhibit B to the
Notice must be chemically analyzed in accordance with the Living Environmental Management
Plan, reported to DEQ, and any environmental risks posed by such soil shall be mitigated or
remediated to DEQ's written satisfaction prior to any pre-school, primary, middle, or high school
educational use at the Brownfields Property.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

Wurst Property (#18067-14-092) LUR Update

LUR 7:No building may be constructed on the Brownfields Property and no existing
building, defined as those depicted on the plat attached as Exhibit B to the Notice, may be occupied
unless and until DEQ determines in writing that:

a.it is demonstrated to DEQ's written satisfaction through a site-specific risk
assessment that the building is protective of the building's users, public health and
the environment from risk of vapor intrusion;

b.it is demonstrated, pursuant to a DEQ-approved plan, and subject to DEQ's
approval, that the building would be or is sufficiently distant from the Brownfields
Property's groundwater and/or soil contamination that the building's users, public
health and the environment will be protected from risk from vapor intrusion related
to said contamination; or

c.a plan for vapor mitigation measures, approved in writing by DEQ 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 licensed in North Carolina, as reflected by an implementation
report, bearing the seal of said engineer that includes photographs and a description
of the installation and performance assessment of the mitigation system.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 8:The Brownfields Property may not be used as an indoor playground, child care
center, nor preschool, elementary, middle or high school except where active vapor intrusion
mitigation measures are installed pursuant to a pre-approved work plan by DEQ, operated and
maintained in good condition, and are demonstrated to be performing as designed by periodic
performance monitoring and reporting to DEQ.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 9:Except for the exterior tennis court, the Brownfields Property may not be used
as an exterior playground, child care center, nor pre-school, elementary, middle or high school,
except in areas where 12 inches of demonstrated clean compacted fill, or another cover approved
in writing in advance by DEQ, are installed to DEQ's written satisfaction, and then delineated to
DEQ's written satisfaction as “Demonstrated Clean Fill Area Suitable for ‘Playground,’ ‘Child
Care Center’ or ‘School’” areas on a revised plat component attached as Exhibit B to the Notice,
and is maintained and left undisturbed other than through normal playground, child care center or
school use.

Wurst Property (#18067-14-092) LUR Update

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 10:None of the contaminants known to be present in the environmental media at the
Brownfields Property, including those in paragraph 8 of the Agreement attached as Exhibit A to
the Notice, 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; and
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.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 11:The Property may not be used for agriculture or grazing, without the prior
written approval of DEQ.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 12:Whenever actions are required by the DEQ-approved versions of the plans
required by paragraph 14 of the Agreement attached as Exhibit A to the Notice, or by LUR Nos.
2, 3, 5, 6, and 7 above, it shall be the duty of parties owning any portion(s) of the Brownfields
Property subject to the requirements, and in the case of LUR Nos. 2 and 3 above, those who
undertake land-disturbing activity at the Brownfields Property, to comply.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 13:Any deed or other instrument conveying an interest in the Brownfields Property
executed by an owner of any interest in the Brownfields Property shall contain the following
notice: "The property which is the subject of this instrument is subject to the Brownfields
Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Wake
County land records, Book 16518, Page 117." 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

Wurst Property (#18067-14-092) LUR Update
Conveyance may be redacted. An owner may use the following mechanisms to comply with the
obligations of this paragraph: 1) The owner 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); and (ii) the owner may provide
abstracts of leases, rather than full copies of said leases, to the persons listed in Section XV.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 14: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 land use restriction is waived in writing by DEQ in advance.

In compliance Out of compliance
☐☐

Remarks: ______________________________________________________________

LUR 15: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: ______________________________________________________________

LUR 16: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 DEQ, and to the chief public health and environmental
st
officials of Wake County, certifying that, as of said January 1, the Notice of Brownfields Property
containing these land use restrictions remains recorded at the Wake 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
email 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;

Wurst Property (#18067-14-092) LUR Update

c.whether any vapor barrier and/or mitigation systems installed pursuant to LUR Nos.
7 and 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

d.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 LUR No. 13 and paragraphs 21 and 22 of the
Agreement attached as Exhibit A to the Notice.

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 Wake 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: _________________