05016_Southern Mfg Email FW_ DECLARATION OF PERPETUAL LAND USE RESTRICTIONS

From:Benne Hutson
To:Carolyn F. Minnich (E-mail)
Subject:FW: DECLARATION OF PERPETUAL LAND USE RESTRICTIONS
Date:Wednesday, September 04, 2002 5:04:11 PM
Attachments:dplurs#1.doc
Header
-----Original Message-----
From: "Wallace Finlator" <[e-mail]>
[mailto:IMCEAGWISE-SHMM+5FDOM+2ESMTP+2E+22wfinlat+40mail+2Ejus+2Estate+2
[e-mail]]
Sent: Tuesday, August 07, 2001 11:23 AM
To: Benne Hutson
Cc: [e-mail]
Subject: DECLARATION OF PERPETUAL LAND USE RESTRICTIONS
Benne,
I am e-mailing to you Hanna's and my response to your June 27 second
proposed draft (which responded to the draft Hanna sent, I believe, to the Ark
Property reps last year). I apologize again for the delay in getting this to
you.
I am also faxing this draft because I believe the underlines and
strike-thrus are not showing in the e-mail attachment. I am not sure why, but
I believe it is because there is a disconnect between my MS Word program and
my e-mail application. My office uses WordPerfect, but I am experimenting
with MS Word (because I receive more and more documents in that format).
In the draft I am faxing, there are five kinds of text:
1. Normal text without underlines: This is language from the Inactive
Hazardous Site Branch's (IHSB's) model document, which you and we (Hanna and
I) propose to keep.
2. Text underlined once: This is additional text proposed by you and
accepted by me and Hanna.
3. Single strike-thrus: This is text from the IHSB model document that
you propose to strike and which Hanna and I agree to strike, or text from the
model document that we propose to strike.
4. Double strike-thrus: This is additional text proposed by you bu
rejected by the IHSB.
5. Text in italics with no underlining. This is text proposed by Hanna
and me, which you are seeing here for the first time. Some of it is my
rendering of the information you provided me re Fiber Mills, LLC. Please
check my Fiber Mills, LLC inserts for accuracy.
We were able to accept some of your changes but not all. For example, we
accept your deletion of "contaminated with hazardous substances." However,
From:Minnich, Carolyn
To:Wallace Finlator ([e-mail]); "[e-mail]"
Subject:Southern Manufacturing
Date:Thursday, September 05, 2002 1:37:59 PM
Attachments:dplurs#1.doc
Hi Hanna and Wallace:
Currently, I am working the Southern Manufacturing Site located at 1000 Seaboard Ave, Charlotte and Benne
Hutson is representing the PD. It is my understanding that you all previous worked on this site and drafted some
land use restrictions, which are attached for your reference. I spoke with Hanna a few months ago on the project,
but this will be new to you Wallace. In the agreement, it was determined that 6-8" soil cap would be installed and
maintained. The land use states the following:
"The Site shall be used exclusively for commercial or industrial purposes but shall not be used for childcare centers,
school, parks, recreational areas, or athletic fields"
The intended redevelopment for the Site is an outdoor urban amphitheater. Did you all know this when you all
prepared the land use restrictions and agreed to the soil cap thickness? I am now negotiating with the PD a revised
soil cap thickness based on the intended redevelopment an amphitheater with pedestrians walking across the site and
sitting on the grass enjoying the music. My question to you is, did you know the intended redevelopment of the
property when you were preparing the land use restrictions and remediation. Please contact me to discuss further.
Thank You,
Carolyn Minnich
Brownfields Project Manager
NCDENR
c/o City of Charlotte
Neighborhood Development Key Business
(v) 704/336-3499 (f) 704/336-2527
-----Original Message-----
From: Benne Hutson [mailto:[e-mail]]
Sent: Wednesday, September 04, 2002 5:04 PM
To: Carolyn F. Minnich (E-mail)
Subject: FW: DECLARATION OF PERPETUAL LAND USE RESTRICTIONS
-----Original Message-----
From: "Wallace Finlator" <[e-mail]>
[mailto:IMCEAGWISE-SHMM+5FDOM+2ESMTP+2E+22wfinlat+40mail+2Ejus+2Estate+2
[e-mail]]
Sent: Tuesday, August 07, 2001 11:23 AM
To: Benne Hutson
Cc: [e-mail]
Subject: DECLARATION OF PERPETUAL LAND USE RESTRICTIONS
Benne,
I am e-mailing to you Hanna's and my response to your June 27 second
proposed draft (which responded to the draft Hanna sent, I believe, to the Ark
Property reps last year). I apologize again for the delay in getting this to
you.
I am also faxing this draft because I believe the underlines and
strike-thrus are not showing in the e-mail attachment. I am not sure why, but
I believe it is because there is a disconnect between my MS Word program and
my e-mail application. My office uses WordPerfect, but I am experimenting
with MS Word (because I receive more and more documents in that format).
In the draft I am faxing, there are five kinds of text:
1. Normal text without underlines: This is language from the Inactive
Hazardous Site Branch's (IHSB's) model document, which you and we (Hanna and
I) propose to keep.
2. Text underlined once: This is additional text proposed by you and
accepted by me and Hanna.
3. Single strike-thrus: This is text from the IHSB model document that
you propose to strike and which Hanna and I agree to strike, or text from the
model document that we propose to strike.
4. Double strike-thrus: This is additional text proposed by you bu
rejected by the IHSB.
5. Text in italics with no underlining. This is text proposed by Hanna
and me, which you are seeing here for the first time. Some of it is my
rendering of the information you provided me re Fiber Mills, LLC. Please
check my Fiber Mills, LLC inserts for accuracy.
We were able to accept some of your changes but not all. For example, we
accept your deletion of "contaminated with hazardous substances." However,
after much consideration, Hanna and I decided we have to spell out the
restrictions, particularly to make it clear that they apply to the entire
Site, not just to the disposal area. If any part of the Site is sold off
(even parts containing no disposal areas), the restrictions run with that part
nevertheless.
If you have any question, please call me at your convenience. Best
regards,
Wallace
DECLARATION OF PERPETUAL LAND USE RESTRICTIONS FIBER MILLS, LLC SITE
FORMER SOUTHERN MANUFACTURING, INC. SITE BBA/U.S.HOLDINGS PARCEL

FORMER SOUTHERN MANUFACTURING, INC. SITE-BBA/U.S. HOLDINGS
ARK PROPERTY GROUP, INC. PARCEL
1000 Seaboard Street, Charlotte, Mecklenburg County, North Carolina

For purposes of this Declaration, the following definitions shall apply:
The“Property” Site shall mean all of the real property and appurtenances thereto
located at 1000 Seaboard Street, Charlotte, North Carolina and identified as
Parcel No.: 078-425-01A on page 13 of deed book 04626-619 in the Register of
Deeds office of Mecklenburg County, North Carolina.
“Plat” shall mean the survey plat of the Site prepared by Fiber Mills, LLC,
approved by the Department of Environment and Natural Resources in
accordance with North Carolina Gen. Stat. § 130A-310.8, entitled “Notice of
Inactive Hazardous Substance or Waste Disposal Site,” and identifying that
identifies the location, type and quantity of hazardous substances remaining on the Site after completion of the remedial action under the Remedial Action Plan.
dimensions of the disposal area and area of environmental concern at the Property

“Disposal Area” shall mean that portion of the Property Site identified on the Plat
as the disposal area and area of environmental concern.
The Property Site which is the subject of this Declaration is contaminated with hazardous
substances, and is an INACTIVE HAZARDOUS SUBSTANCE OR WASTE DISPOSAL SITE
(hereinafter referred to as the “Site”) as defined by North Carolina's Inactive Hazardous Sites
Response Act, which consists of Section 130A-310 through Section 130A-310.19 of the North Carolina General Statutes (NCGS). This Declaration is part of a Remedial Action Plan for the
Site Property that has been approved by the Secretary of the North Carolina Department of
Environment and Natural Resources (or its successor in function), or his/her delegate, as
authorized by NCGS Section 130A-310.3(f). The North Carolina Department of Environment
and Natural Resources shall hereinafter be referred to as “DENR.”
Pursuant to NCGS Section 130A-310.8, this Declaration is expressly incorporated by
reference in a plat entitled “Notice of Inactive Hazardous Substance or Waste Disposal Site”
(hereinafter referred to as the “Plat”). The Plat identifies the location and dimensions of the
disposal area and area of environmental concern at the Plat. the Site. This portion of the Site shall hereinafter be referred to as the “Site’s Disposal Area”.

Ark Property Group, Inc., a Delaware Fiber Mills, LLC, whose principal place of
business is 518 Highway 16, Denver, North Carolina, 28037, Simpsonville, South Carolina is the
owner in fee simple of the Property Site. Site. The Site is a portion of the Former Southern
Manufacturing Site. The Site is located at 1000 Seaboard Street, Charlotte, North Carolina and is identified as Parcel No.: 078-425-01A on page 13 of deed book 04626-619 in the Register of
Deeds office of Mecklenburg County, North Carolina. Property. For the purpose of protecting
public health and the environment, Fiber Mills, LLC, hereby declares that all the real property
comprising the Site all of the real property described abovetProperty shall be held, sold and
conveyed subject to the following perpetual land use restrictions, which shall run with the land; shall be binding on all parties having any right, title or interest in the above-described
propertyProperty Site or any part thereof, their heirs, successors and assigns; and shall, as
provided in NCGS Section 130A-310.3(f), be enforceable without regard to lack of privity of
estate or contract, lack of benefit to particular land, or lack of any property interest in particular
land. These restrictions shall continue in perpetuity and cannot be amended or canceled unless and until the Mecklenburg County Register of Deeds receives and records the written
concurrence of the Secretary of DENR (or its successor in function), or his/her delegate.

PERPETUAL LAND USE RESTRICTIONS
Other than actions allowed under the Remedial Action Plan to maintain or repair the soil
cover at the Site’s Disposal Area, including but not limited to mowing of vegetation, tree pruning
and erosion control measures, no activity may be conducted at the Site’s Disposal Area,
including but not limited to below-ground construction or alteration, disturbance or removal of
the soil cover, that could cause or result in the exposure of buried wastes, except as a approved by DENR or its successors in function

1. The Site shall be used exclusively for commercial or industrial purposes but shall not be
used for childcare centers, school, parks, recreational areas, or athletic fields.
2. No activity may be conducted at the Site that could cause or result in the exposure of
wastes at the Disposal Site, except as approved by DENR or its successor in function.

3. The Site shall not be used for sporting activities of any kind, including, but not limited to,
golf, football, basketball, soccer, and baseball.
4. No below-ground construction or improvements may be conducted at the Site, except as
approved by DENR or its successor in function.

5. The Site shall not be used for agricultural or grazing purposes or for timber production.
6. The Site shall not be used for kennels, private animal pens, or for riding clubs.

7. The Site shall not be used for mining, extraction of coal, oil, gas or any other minerals or
non-mineral substances.
8. Activities necessary to maintain the structural integrity of the existing asphalt cover,
concrete cover and soil/grass cover of the Disposal Area or any part of the remedy for the
contamination at the Site are permitted, if approved in advance by DENR or its successor in
function. Mowing of vegetation and tree pruning are allowed on the Site.
ENFORCEMENT
The above land use restrictions shall be enforced by any owner, operator, or other party
responsible for any part of the property comprising the Site Property. The above land use
restrictions may also be enforced by DENR through the remedies provided in NCGS Chapter
130A, Article 1, Part 2 or by means of a civil action, and may also be enforced by any unit of local government having jurisdiction over any part of the Property Site. provided however that
the only parties required to consent to a modification, waiver, amendment or termination of these
restrictions arethe owner of the Site and DENR or its successors in function, and this Declaration
does not create or grant any rights to any otherparty or governmental entity to object to or
comment on any modification, waiver, amendment or termination agreed upon by the owner of the Site and DENR or its successors in function. Any attempt to cancel this Declaration without
the approval of DENR or its successor in function shall constitute noncompliance with the
Remedial Action Plan approved by DENR for the Site, and shall be subject to enforcement by
DENR to the full extent of the law. Failure by any party required or authorized to enforce any of
the above restrictions shall in no event be deemed a waiver of the right to do so thereafter as to the same violation or as to one occurring prior or subsequent thereto.

NOTICE

These land use restrictions are an integral part of the remedy for the contamination at the Property Site. Adherence to the restrictions is necessary to protect public health and the
environment. In addition to this Declaration, a the Plat, entitled Notice of Inactive Hazardous
Substance or Waste Disposal Site, as defined above, constituting a survey plat identifying the
type, location and quantity of hazardous substances remaining on the Property Site and approved
by DENR pursuant to NCGS 130A-310.8, will soon hereafter be recorded at the Mecklenburg County Registrar of Deeds' office.

FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS

When any portion of the Property Site is sold, leased, conveyed or transferred, pursuant to NCGS Section 130A-310.8(e), the deed or other instrument of transfer shall contain in the
description section, in no smaller type than that used in the body of the deed or instrument, a
statement that the real property has been used as a hazardous substance or waste disposal site and
a reference by book and page to the recordation of the Notice of Inactive Hazardous Substance or
Waste Disposal Site referenced in the preceding paragraph above. previously referenced in this Declaration.

IN WITNESS WHEREOF, I, ________________________________ exercising power
of attorney for Fiber Mills, LLC Ark Property Group, Inc., execute these presents on this _____
day of ____________, 2001.
(Corporate Seal) Ark Property Group, Inc. FIBER MILLS, LLC.
By: _________________________________

STATE OF NORTH CAROLINA COUNTY OF ______________________

I, ________________________________, a Notary Public, do hereby certify that
___________________________________ personally appeared before me this day and
acknowledged that he is the ______________________________of Ark Property Group, Inc., Fiber Mills, LLC, and that by authority duly given by, and as the act of, Fiber Mills, LLC, the
foregoing instrument was signed in the name of Ark Property Group, Inc.'s Fiber Mills, LLC, by
such ___________________________________.

Witness my hand and official seal this ____ day of ___________, 2001.
_____________________________________
Notary Public

My Commission expires: _____________________
[SEAL]

after much consideration, Hanna and I decided we have to spell out the
restrictions, particularly to make it clear that they apply to the entire
Site, not just to the disposal area. If any part of the Site is sold off
(even parts containing no disposal areas), the restrictions run with that part
nevertheless.
If you have any question, please call me at your convenience. Best
regards,
Wallace