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written approval ofDENR.
12. The Brownfields Proper·ty may not be used for agriculture, grazing, timbering or timber
production.
13. The Brownfields Property may not be used as a playground, or for child care centers, or Schools,
with outdoor use areas.
14. The Brownfields Property may not be used for kennels, private animal pens or horse-riding.
15. No party conducting environmental assessment or remediation at the Brownfields Property at the
direction of, or pursuant to a permit or order issued by, DENR may be denied access to the Brownfields
Proper·ty for purposes of conducting such assessment or remediation.
16. During January of each year after the year in which this Notice is recorded, the then current
owner of any part of the Brownfields Property shall submit a notarized Land Use Restrictions Update to
DENR certifying that this Notice remains recorded at the New Hanover County Register of Deeds office, that
the land use restrictions are being complied with, and that, in the areas denominated ''Soil Contamination''.
on the plat component of the Notice of Brownfields Proper·ty, any and all asphalt or concrete covers have
been inspected at least quarterly and are in good repair.
For purposes of the land use restrictions set forth above, the DENR point of contact shall be the DENR
official referenced in paragraph 36.a. of Exhibit A hereto, at the address stated therein.
ENFORCEMENT
The above land use restrictions shall 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. The land use restrictions shall be
enforced by any owner of the Brownfields Property. The land use restrictions may also be enforced by DENR
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through the remedies provided in NCGS 130A, Article 1, Part 2 or by means of a civil action; by any unit of local
government having jurisdiction over any part of the Brownfields Property; and by any person eligible for liability
protection under the Brownfields Property Reuse Act who will lose liability protection ifthe restrictions are violated.
Any attempt to cancel any or all of this Notice without the approval of the Secretary ofDENR (or its successor in
function), or his/her delegate, 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.
FUTURE SALES, LEASES, CONVEYANCES AND TRANSFERS
When any portion of the Brownfields Property is sold, leased, conveyed or transferred, pursuant to NCGS §
130A-310.35(d) 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 Brownfields Property has been classified
and, if appropriate, cleaned up as a brownfields property under the Brownfields Property Reuse Act.
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documentary component of the Notice containing a certification by the register of deeds as to the
Book and Page numbers where both the documentary and plat components of the Notice are
recorded, and a copy of the plat with notations indicating its recordation.
24. This Agreement shall be attached as Exhibit A to the Notice of Brownfields
Property. Subsequent to recordation of said Notice, any deed or other instrument conveying an
interest in the 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 New Hanover County land records, Book 5'~3 I, Page
U~ ." 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.
25. The Prospective Developer shall ensure that assignees, successors in
interest, lessees, and sublessees, of the Property provide the same access and cooperation
required of the Prospective Developer under this Agreement. The Prospective Developer shall
ensure that a copy of this Agreement is provided to any current lessee or sublessee on the
Property as of the effective date of this Agreement and shall ensure that any subsequent leases,
subleases, assignments or transfers of the Property or an interest in the Property are consistent
with this Section (Access/Notice To Successors In Interest), Section V (Work to be Perfor1ned)
and Section XI (Parties Bound & Transfer/Assignment Notice) of this Agreement.
VII. DUE CARE/COOPERATION
26. The Prospective Developer shall exercise due care at the Property with respect to
regulated substances and shall comply with all applicable local, State, and federal Jaws and
regulations. The Prospective Developer agrees to cooperate fully with any remediation of the
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Environmental Policy Act, N.C.G.S. § l 13A-l, fil seq.
X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
30. In consideration ofDENR's Covenant Not To Sue in Section IX of this
Agreement and in recognition of the absolute State immunity provided in N.C.G.S. § 130A-
310.37(b), the Prospective Developer hereby covenants not to sue and not to assert any claims or
causes of action against DENR, its authorized officers, employees, or representatives with
respect to any action implementing the Act, including negotiating, entering, monitoring or
enforcing this Agreement or the above-referenced Notice ofBrownfields Property.
XI. PARTIES BOUND & TRANSFER/ASSIGNMENT NOTICE
31. This Agreement shall apply to and be binding upon DENR, and on the
Prospective Developer, its officers, directors, employees, and agents. Each Party's signatory to
this Agreement represents that she or he is fully authorized to enter into the te1111s and conditions
of this Agreement and to legally bind the Party for whom she or he signs.
32. No later than fourteen (14) days prior to any transfer or assignment by Prospective
Developer of any interest in the Property, Prospective Developer shall provide in writing to
DENR the transferee or assignee's name, mailing address, telephone and facsimile numbers, and
e-mail address.
XII. DISCLAIMER
33. This Agreement in no way constitutes a finding by DENR as to the risks to public
health and the environment which may be posed by regulated substances at the Property, a
representation by DENR that the Property is fit for any particular purpose, nor a waiver of
Prospective Developer's duty to seek applicable pe11nits or of the provisions ofN.C.G.S. §
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