12018_Hondros Recorded NBP 20100305

Property Owner: Arrowood Nations Ford Property, LLC
Recorded in Book __ , Page __
Associated plat recorded in Plat Book __ , Page __
FOR REGISTRATION J. DAVID GRANBERRY REGISTER OF DEEDS MECKLENBURG COUNTY NC 2010 MAR 05 11·14·23 AM BK 25460 PG:727-756 FEE·$9B.OO
H~STRUMENT # 2070025359
I llllll lllll llll/ 1111111111111111111111111111111111111111111 2010025359
NOTICE OF BROWNFJELDS PROPERTY
This documentary component of a Notice of Brownfields Property ("Notice"), as well as the plat
component, have been filed this __ day of , 200_ by Arrowood Nations Ford
Property, LLC (hereinafter "Prospective Developer").
The Notice concerns contaminated property.
A copy of this Notice certified by the North Carolina Department of Environment and Natural
Resources (hereinafter "DENR") is required to he filed in the Register of Deeds' Office in the county or
counties in which the land is located, pursuant to North Carolina General Statutes (hereinafter "NCGS"),
Section (hereinafter"§") l30A-310.35(b).
This Notice is required by NCGS § l30A-310.35(a), in order to reduce or eliminate the danger to
public health or the environment posed by environmental contamination at a property (hereinafter the
"Brownfields Property") being addressed under the Brown fields Property Reuse Act of 1997, NCGS §BOA,
Article 9, Part 5 (hereinafter the "Act").
Pursuant to NCGS § l30A-310.35(b ), the Prospective Developer must file a certified copy of this Notice
within 15 days of Prospective Developer's receipt of DENR's approval of the Notice or Prospective
Developer's entry into the Brownfields Agreement required by the Act, whichever is later. Pursuant to
NCGS § l30A-310.35(c), the copy of the Notice certified by DENR must be recorded in the grantor index
under the names of the owners of the land and, if Prospective Developer is not the owner, also under
Prospective Developer's name.
The Brown fields Property is located at 9101 & 9111 Nations Ford Road, Charlotte, Mecklenburg County,
North Carolina, and comprises approximately 16 acres. Through sale to a third party, Arrowood Nations Ford
Property, LLC intends to effect redevelopment of the Brownfields Property for retail and any other commercial
purposes approved in writing by DENR in advance, and for residential purposes. Groundwater and vapor are
contaminated at the Brownfields Property due, on information and belief, to past activities on surrounding
properties. The Brownfields Property is surrounded by land in commercial, retail and residential use.
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The Brownfields Agreement between Prospective Developer and DENR is attached hereto as Exhibit
A. It sets forth the use that may be made of the Brown fields Property and the measures to be taken to
protect public health and the environment, and is required by NCGS § 130A-310.32.
Attached hereto as Exhibit Bis a reduction, to 8 112" x l l ",of the survey plat required by NCGS § I 30A-
3 I 0.35(a). It is a plat of areas designated by DENR that has been prepared and certified by a professional land
surveyor and that meets the requirements ofNCGS § 47-30. That plat contains the following information required
by NCGS § I 30A-3 l 0.35(a):
(1) The location and dimensions of the areas of potential environmental concern with respect to permanently
surveyed benchmarks.
(2) The type, location and quantity of regulated substances and contaminants known to exist on the
Brownfields Property. The following table also sets forth the type and quantity of such substances:
Groundwater contaminants (in micrograms per liter, the equivalent of parts per billion), the standards for
which are in Title 15A of the North Carolina Administrative Code, Subchapter 2L, Rule .0202:
Table A
Groundwater Sample Date o{A1ax. Maximum Standard
Contaminant Location Concentration Concentration (µg/L)
Sampling above Std. (µg/L)
Tetrachlorethylene TW-l 12/31/2007 19.2 0.7
Tetrachlorethylene TW-2 12/31/2007 10.9 0.7
Soil-gas contaminants (in milligrams per meter cubed, the equivalent of parts per million), the standards for
which are derived using the Guidelines of the Inactive Hazardous Sites Branch ofDENR's Superfund Section:
Table B
Soil Vapor Sample Date of Max. Maximum Standard
Contaminant Location Concentration Concentration Res/Ind
Sampling above Std (µglm 3) (µg/m3)
Chloroform VP-6 311212009 21 11153
Tetrachlorethylene VP-I 3/12/2009 3400 41/2l0
Tetrachlorethylene VP-4 3112/2009 900 41/210
Tetrachlorethylene VP-6 3112/2009 3200 41/210
1,2,4-VP-5 3/12/2009 13 8.2/62
Trimethylbenzene
Attached hereto as Exhibit C is a legal description of the Brownfields Property that would be sufficient as a
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description of the property in an instrument of conveyance.
LAND USE RESTRICTIONS
NCGS l 30A-3 I0.35(a) also requires that the Notice identify any restrictions on the current and future use of
the Brownfields Property that are necessary or useful to maintain the level of protection appropriate for the
designated current or future use of the Brownfields Property and that are designated in the Brownfields Agreement.
The Land Use Restrictions shall remain in force in perpetuity unless canceled by the Secretary of DENR (or
its successor in function), or his/her designee, after the hazards have been eliminated, pursuant to NCGS §
130A-310.35(e). All references to DENR shall be understood to include any successor in function. The Land
Use Restrictions are hereby imposed on the Brownfields Property, and are as follows:
1. No use may be made of the Brownfields Property other than for retail and any other commercial
purposes DENR approves in writing in advance, and for residential purposes. For purposes of this
restriction, the following definitions apply
a. "Residential" refers to use for a permanent dwelling of a single-or multi-unit building.
b. "Retail" refers to the sale of goods directly to the consumer.
c. "Commercial" refers to an enterprise carried on for profit.
2. No building may be constructed on the Brownfields Property without a vapor barrier system
and/or mechanical or passive vapor mitigation system approved in writing in advance by DENR. Within
30 days following installation of the vapor barrier system and/or mechanical or passive vapor mitigation
system, DENR shall be provided certification of proper installation under seal of a professional engineer
licensed in North Carolina, as well as photographs illustrating the installation and a brief narrative
describing it. With DENR's prior written approval, additional investigation activities including, without
limitation, soil gas samples, performed to DENR's written satisfaction, may be conducted, and
installation of a mitigation system possibly excused, so long as the proponent makes an advance written
commitment to install a mitigation system ifDENR so requires based on review of a report DENR deems
adequate of the investigation activities.
3. Underground water at the Brownfields Property may not be used for anv purpose without the
prior written approval of DENR.
4. No mining may be conducted on or under the Brownfields Property, including, without
limitation, extraction of coal, oil, gas or any other minerals or non-mineral substances.
5. No basements may be constructed on the Brownfields Property unless they are, as determined
in writing by DENR, vented in conformance with applicable building codes.
6. None of the contaminants known to be present in the environmental media at the Brown fields
Property, including those listed in Table A and 8 above, may be used or stored at the Brownfields
Propertv without the prior written approval of DENR, except in de minimis amounts for cleaning and
other routine housekeeping activities.
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7. The Brownfields Property may not be used as a park or for sports of any kind, including, but
not limited to, golf, football, soccer and baseball, without the prior written approval of DENR.
8. The Brownfields Property may not be used for agriculture, grazing, timbering or timber
production.
9. The Brownfields Property may not be used as a playground, or for child care centers or
schools, without the prior written approval of DENR.
to. The Brownfields Property may not be used for kennels, private animal pens or horse-riding,
without the prior written approval of DENR.
11. 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.
12. No party conducting environmental assessment or remediation at the Brownfields Propertv at
the direction of, or pursuant to a permit or order issued bv, DENR may be denied access to the
Brownfields Propertv 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.
13. During January of each year after the year in which the Notice referenced below in paragraph
20 is recorded, the owner of any part of the Brownfields Property as of January I '1 of that year shall
submit a notarized Land Use Restrictions Update ("LURU") to DENR certifying that, as of said January
1'1, this Notice 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; and
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 Propertv during the
previous calendar year.
c. whether any vapor barrier and/or mitigation systems installed pursuant to Land Use
Restriction 2 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.
For purposes of the Land Use Restrictions set forth above, the DENR point of contact shall be the DENR
official referenced in paragraph 35.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
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be enforced by any owner of the Brownfields Property. The Land Use Restrictions may also be enforced by DENR
through the remedies provided in NCGS l 30A, Article I, 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 Brown fields Property Reuse Act who will lose liability protection if the 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
pany 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 TMNSFERS
When any portion of the Brownfields Property is sold, leased, conveyed ortransferred, pursuant to NCGS §
l 30A-3 l 0.35( 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.
IN WITNESS WHEREOF, Prospective Developer has caused this instrument to be duly executed this
t+i ~day of FCbvu -ary , 20~ 0 .
NORTH CAROLINA
iAecYl-cn61':J COUNTY
By:
Arrowood Nations Ford Property, LLC
~1~ s;;DHOl1dros
Member/Manager
I, wb,;ca A. Sh,· nrJ:v-, a Notary Public of the county and state aforesaid, certify that Spiro
Hondros personally came beforee this day and acknowledged that he/she is a Member of Arrowood Nations Ford
Property, LLC, a North Carolina limited liability company, and its Manager, and that by authority duly given and as
the act of the corporation, the foregoing Notice ofBrownfields Property was signed in its name by him/her.
WITNESS my hand and official stamp or seal, this 2if'i day of , 20~.Q.
Name typed or print
Notary Public
My Commission expires: 1 b.h1mry 2\, , 201 S
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************************************
APPROVAL AND CERTIFICATION OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
The foregoing Notice of Brownfields Property is hereby approved and certified.
North Carolina Department of Environment and Natural Resources
d\ 11. \f;-
Date
/o /Jo Jo ! By:
Deputy Director, Division of Waste Management
********************************
CERTIFICATION OF REGISTER OF DEEDS
The foregoing documentary component of the Notice ofBrownfields Property, and the associated plat, are
certified to be duly recorded at the date and time, and in the Books and Pages, shown on the first page hereof.
Register of Deeds for Mecklenburg County
By:
Name typed or printed:
~~~~~~~~~~~~ Date
Deputy/ Assistant Register of Deeds
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NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
IN THE MATTER OF: Arrowood Nations Ford Property, LLC
UNDER THE AUTHORITY OF THE
BROWNFIELDS PROPERTY REUSE ACT
OF 1997, N.C.G.S. § 130A-310.30, et seq.
Brownfields Project# 12018-08-60
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)
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!. INTRODUCTION
BROWNFIELDS AGREEMENT re:
Hondros Property
9101 & 9111 Nations Ford Road
Charlotte, Mecklenburg County
This Brownfields Agreement ("Agreement") is entered into by the North Carolina
Department of Environment and Natural Resources ("DENR") and Arrowood Nations Ford
Property, LLC (collectively the "Parties") pursuant to the Brownfields Property Reuse Act of
1997, N.C.G.S. § 130A-310.30, et seq. (the "Act"), and constitutes an order within the meaning
ofN.C.G.S. § 130A-22.
Arrowood Nations Ford Property, LLC is a North Carolina limited liability company
formed on July 23, 2007. Its registered agent is Spiro Hondros; its registered office and mailing
address is 3309-b Washburn Avenue, Charlotte, North Carolina 28205. This Agreement
concerns three (3) parcels comprising approximately sixteen (16) acres. The following table lists
the parcels, with the Mecklenburg County tax parcel identification number ("PIN"), size, address
and current use of each.
PIN Size (in acres) Address Use
20517120 7.804 ac 9101 Nations Ford Road vacant
20517121 0.949 ac 9111 Nations Ford Road vacant
20517108 7.64 ac Nations Ford Road vacant
Through sale to a third party, Arrowood Nations Ford Property, LLC intends to effect
redevelopment of the subject property for retail and any other commercial purposes approved in
Hondros BFA
writing by DENR in advance, and for residential purposes. Groundwater and vapor are
contaminated at the subject property due, on information and belief, to past activities on
surrounding properties. The subject property is surrounded by land in commercial, retail, and
residential use. A map showing the location of the property which is the subject of this
Agreement is attached hereto as Exhibit 1.
The Parties agree to undertake all actions required by the terms and conditions of this
Agreement. The purpose of this Agreement is to settle and resolve, subject to reservations and
limitations contained in Section VIII (Certification), Section IX (DENR's Covenant Not to Sue
and Reservation of Rights) and Section X (Prospective Developer's Covenant Not to Sue), the
potential liability of Arrowood Nations Ford Property, LLC for contaminants at the property
which is the subject of this Agreement.
The Parties agree that Arrowood Nations Ford Property, LLC' s entry into this
Agreement, and the actions undertaken by Arrowood Nations Ford Property, LLC in accordance
with the Agreement, do not constitute an admission of any liability by Arrowood Nations Ford
Property, LLC.
The resolution of this potential liability, in exchange for the benefit Arrowood Nations
Ford Property, LLC shall provide to DENR, is in the public interest.
II. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement which are
defined in the Act or elsewhere in N.C.G.S. 130A, Article 9 shall have the meaning assigned to
them in those statutory provisions, including any amendments thereto.
I. "Property" shall mean the Brownfields Property which is the subject of this
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Agreement, and which is depicted in Exhibit 1 to the Agreement.
2. "Prospective Developer" shall mean Arrowood Nations Ford Property, LLC.
III. STATEMENT OF FACTS
3. The Property comprises approximately 16.393 acres. Prospective Developer has
committed itself to restrict the uses of the redeveloped Property to retail and any other
commercial purposes approved in writing by DENR in advance, and residential purposes.
4. The Property is bordered to the north by Arrowood Road, a Shell Service
Station/Sam's Food Mart and, beyond, land in retail, commercial and residential use; to the south
by land in multi-family residential use and the towers of radio station WBT; to the east by vacant
land and, beyond, land in multi-family residential use; and to the west by a BP Service Station,
Nations Ford Road and land in retail and commercial use.
5. Prospective Developer obtained or commissioned the following reports, referred to
hereinafter as the "Environmental Reports," regarding the Property:
Title Preoared by Date of Report
Phase I Environmental Site Assessment S&ME, Inc. October 17, 2007
910119111 Nations Ford Road
Report of Phase II ESA ECS, LLP Carolinas January 15, 2008
Park Meadows
Phase I Environmental Site Assessment S&ME, Inc. March 14, 2008
7.64 Acre Pronerty
Report of Limited Soil Vapor Sampling & S&ME, Inc April l 0, 2009
Analysis
6. For purposes of this Agreement, DENR relies on the following representations by
Prospective Developer a.s to use and ownership of the Property:
a. Prior to 1938, the Property was undeveloped woodland.
b. From 1938-1968, there were agricultural fields on the Property, with scattered
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Hondros BFA
woods and, until the mid-l 980s, a residence on the southern portion.
c. From the mid-1960s until the mid-l 980s, there was a pond in the central
portion of the Property. No standing water is at the site of the former pond, nor are there signs of
fill material.
d. After 1975 and until 1983, the Property was logged and cleared of vegetation,
soil erosion is visible in aerial photographs.
e. Since at least 1986, the Property has been vegetated woodland. There are fill
areas with cleared and stressed vegetation in the southeastern and northeastern portions of the
Property. In the past, the City of Charlotte has issued citations regarding vagrant use and illegal
activities at the Property. A pitched tent and other evidence of temporary residential use have
been found in the west central and north central potions of the Property. Dilapidated and rusted
55-gallon drums, numerous empty gallon paint buckets and old appliances are present in the
western portion of the Property.
f. The Property's current owner is Prospective Developer.
7. Its is believed that the possible sources of the Property's groundwater contamination
are as follows:
a. The former Holiday Cleaners, a dry cleaner that operated 1981-2005 northwest
of the Property at 8920 Nations Ford Road. A "Smiley Mart" convenience store is currently
located there.
b. All Tune and Lube Auto Repair, north of the Property at 8911 Nations Ford
Road.
c. The service stations with registered USTs or LUSTs that operate or previosuly
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operated at each corner of the intersection of Nations Ford and Arrowood Roads.
8. The most recent environmental sampling at the Property reported in the
Environmental Reports occurred in March 2009. The following tables set forth, for
contaminants present at the Property above current unrestricted use standards, the maximum
concentration found at each sample location and the applicable standard:
a. Groundwater contaminants (in micrograms per liter, the equivalent of parts per
billion), the standards for which are in Title 15A of the North Carolina Administrative Code,
Subchapter 2L, Rule .0202:
Groundwater Sample Date of Max. Maximum Standard
Contaminant Location Concen/ra/ ion Concentration (µg!L)
Sampling above Std. (µg/L)
Tetrachlorethylene TW-1 12/31/2007 19.2 0.7
Tetrachlorethylene TW-2 12/31/2007 10.9 0.7
b. Soil-gas contaminants (in milligrams per meter cubed, the equivalent of parts
per million), the standards for which are derived using the Guidelines of the Inactive Hazardous
Sites Branch ofDENR's Superfund Section:
Soil Vapor Sample Date a/Max. Maximum Standard
Contaminant Location Concentration Concentration Res/Ind
Sampling above Std. (µgin/) (µg/m 3)
Chloroform VP-6 3/12/2009 21 11153
Tetrachlorethylene VP-1 3/12/2009 3400 41/210
Tetrachlorethylene VP-4 311212009 900 41/210
Tetrachlorethylene VP-6 3/12/2009 3200 41/210
1,2,4-VP-5 3/12/2009 13 8.2/62
Trimethylbenzene
9. For purposes of this Agreement DENR relies on Prospective Developer's
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Hondros BFA
representations that Prospective Developer's involvement with the Property has been limited to
the following:
a. On February 26, 1985, SC Hondros & Associates, Inc., an affiliate of
Prospective Developer, purchased the Property from John Pollites Realty.
b. On April 23, 2007, the Property was transferred from SC Hondros &
Associates, Inc to Prospective Developer.
c. On June 18, 2008, Prospective Developer submitted a Brownfields Proeptty
Application to DENR, along with the Environmental Reports.
10. Prospective Developer has provided DENR with information, or sworn certifications
regarding that information on which DENR relies for purposes of this Agreement, sufficient to
demonstrate that:
a. Prospective Developer and any parent, subsidiary, or other affiliate has
substantially complied with federal and state laws, regulations and rules for protection of the
environment, and with the other agreements and requirements cited at N.C.G.S. § 130A-
310.32(a)(l );
b. as a result of the implementation of this Agreement, the Property will be
suitable for the uses specified in the Agreement while fully protecting public health and the
environment;
c. Prospective Developer's reuse of the Property will produce a public benefit
commensurate with the liability protection provided Prospective Developer hereunder;
d. Prospective Developer has or can obtain the financial, managerial and
technical means to fully implement this Agreement and assure the safe use of the Property; and
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Honctros BFA
e. Prospective Developer has complied with all applicable procedural
requirements.
11. Prospective Developer has paid the $2,000 fee to seek a brownfields agreement
required by N.C.G.S. § 130A-310.39(a)(l), and shall make a payment to DENR of $3,500 at the
time Prospective Developer and DENR enter into this Agreement, defined for this purpose as
occurring no later than the last day of the public comment period related to this Agreement. The
Parties agree that the second payment shall constitute, within the meaning ofN.C.G.S. § I 30A-
310.39(a)(2), the full cost to DENR and the North Carolina Department of Justice of all activities
related to this Agreement.
IV. BENEFIT TO COMMUNITY
12. The redevelopment of the Property proposed herein would provide the following
public benefits:
a. a return to productive use of the Property
b. a spur to additional community redevelopment, through improved
neighborhood appearance and otherwise;
c. new jobs;
d. tax revenue for affected jurisdictions;
e. additional retail, and possibly other commercial, businesses in the area, and
housing; and
f. "smart growth" through use ofland in an already developed area, which avoids
development of land beyond the urban fringe ("greenfields").
V. WORK TO BE PERFORMED
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Hondros BFA
13. Within 30 days after the effective date of this Agreement, Prospective Developer
shall notify DENR that it is ready to effect the abandonment of all groundwater monitoring
wells, injection wells, recovery wells, piezometers and other man-made points of groundwater
access at the Property in accordance with Subchapter 2C of Title 15A of the North Carolina
Administrative Code, except any in use in connection with government-approved remediation or
monitoring. Unless DENR notifies Prospective Developer within ten days ofreceiving such
notification to refrain from such abandonment, Prospective Developer shall effect said
abandonment and shall, within 30 days after concluding such abandonment, provide DENR a
report setting forth the procedures and results of the abandonment activities.
14. Based on the information in the Environmental Reports, and subject to imposition of
and compliance with the land use restrictions set forth below, and subject to Section IX of this
Agreement (DENR's Covenant Not to Sue and Reservation of Rights), DENR is not requiring
Prospective Developer to perform any active remediation at the Property.
15. By way of the Notice ofBrownfields Property referenced below in paragraph 20,
Prospective Developer shall impose the following land use restrictions under the Act, running
with the land, to make the Property suitable for the uses specified in this Agreement while fully
protecting public health and the environment. All references to DENR shall be understood to
include any successor in function.
a. No use may be made of the Property other than for retail and any other
commercial purposes DENR approves in writing in advance, and for residential purposes. For
purposes of this restriction, the following definitions apply
i. "Residential" refers to use for a permanent dwelling of a single-or
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Hondr()s BFA
multi-unit building.
ii. "Retail" refers to the sale of goods directly to the consumer.
iii. "Commercial" refers to an enterprise carried on for profit.
b. No building may be constructed on the Property without a vapor barrier system
and/or mechanical or passive vapor mitigation system approved in writing in advance by DENR.
Within thirty 30 days following installation of the vapor barrier system and/or mechanical or
passive vapor mitigation system, DENR shall be provided certification of proper installation
under seal of a professional engineer licensed in North Carolina, as well as photographs
illustrating the installation and a brief narrative describing it. With DENR' s prior written
approval, additional investigation activities including, without limitation, soil gas samples,
performed to DENR's written satisfaction, may be conducted, and installation of a mitigation
system possibly excused, so long as the proponent makes an advance written commitment to
install a mitigation system if DENR so requires based on review of a report DENR deems
adequate of the investigation activities.
c. Underground water at the Property may not be used for any purpose without
the prior written approval of DENR.
d. No mining may be conducted on or under the Property, including, without
limitation, extraction of coal, oil, gas or any other minerals or non-mineral substances.
e. No basements may be constructed on the Property unless they are, as
determined in writing by DENR, vented in conformance with applicable building codes.
f. None of the contaminants known to be present in the environmental media at
the Property, including those listed in paragraph 8 of this Agreement, may be used or stored at
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Hondros BFA
the Property without the prior written approval of DENR, except in de minimis amounts for
cleaning and other routine housekeeping activities.
g. The Property may not be used as a park or for sports of any kind, including,
but not limited to, golf, football, soccer and baseball, without the prior written approval of
DENR.
h. The Property may not be used for agriculture, grazing, timbering or timber
production.
i. The Property may not be used as a playground, or for child care centers or
schools, without the prior written approval of DENR.
k. The Property may not be used for kennels, private animal pens or horse-riding,
without the prior written approval of DENR.
1. The owner of any portion of the 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.
m. No party conducting environmental assessment or remediation at the Property
at the direction of, or pursuant to a permit or order issued by, DENR may be denied access to the
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 Property.
n. During January of each year after the year in which the Notice referenced
below in paragraph 20 is recorded, the owner of any part of the Property as of January I st of that
year shall submit a notarized Land Use Restrictions Update ("LURU") to DENR certifying that,
as of said January 1st, the Notice ofBrownfields Property containing these land use restrictions
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Hondros BFA
remains recorded at the Mecklenburg County Register of Deeds office and that the land use
restrictions are being complied with, and stating:
i. 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 Property during the previous calendar year; and
ii. 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 Property
during the previous calendar year.
iii. whether any vapor barrier and/or mitigation systems installed pursuant
to subparagraph 15.b. 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.
16. The desired result of the above-referenced land use restrictions is to make the
Property suitable for the uses specified in the Agreement while fully protecting public health and
the environment.
17. The guidelines, including parameters, principles and policies within which the
desired results are to be accomplished are the Guidelines of the Inactive Hazardous Sites Branch
ofDENR's Superfund Section, as embodied in their most current version.
18. The consequences of achieving or not achieving the desired results will be that the
uses to which the Property is put are or are not suitable for the Property while fully protecting
public health and the environment.
VI. ACCESS/NOTICE TO SUCCESSORS IN INTEREST
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Hondros BFA
19. In addition to providing access to the Property pursuant to subparagraph 15.m.
above, Prospective Developer shall provide DENR, its authorized officers, employees,
representatives, and all other persons performing response actions under DENR oversight, access
at all reasonable times to other property controlled by Prospective Developer in connection with
the performance or oversight of any response actions at the Property under applicable law.
While Prospective Developer owns the Property, DENR shall provide reasonable notice to
Prospective Developer of the timing of any response actions to be undertaken by or under the
oversight ofDENR at the Property. Notwithstanding any provision of this Agreement, DENR
retains all of its authorities and rights, including enforcement authorities related thereto, under
the Act and any other applicable statute or regulation, including any amendments thereto.
20. DENR has approved, pursuant to N.C.G.S. § 130A-310.35, a Notice ofBrownfields
Property for the Property containing, inter alia, the land use restrictions set forth in Section V
(Work to Be Performed) of this Agreement and a survey plat of the Property. Pursuant to
N.C.G.S. § 130A-310.35(b), within 15 days of the effective date of this Agreement Prospective
Developer shall file the Notice ofBrownfields Property in the Mecklenburg County, North
Carolina register of deeds' office. Within three (3) days thereafter, Prospective Developer shall
furnish DENR a copy of the 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.
21. This Agreement shall be attached as Exhibit A to the Notice ofBrownfields
Property. Subsequent to recordation of said Notice, any deed or other instrument conveying an
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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 Mecklenburg_County land records, Book __ , Page
__ ." 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.
22. 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 Performed) and Section XI (Parties Bound &
Transfer/ Assignment Notice) of this Agreement.
VII. DUE CARE/COOPERATION
23. 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 laws and
regulations. The Prospective Developer agrees to cooperate fully with any remediation of the
Property by DENR and further agrees not to interfere with any such remediation. In the event
the Prospective Developer becomes aware of any action or occurrence which causes or threatens
a release of contaminants at or from the Property, the Prospective Developer shall immediately
take all appropriate action to prevent, abate, or minimize such release or threat of release, and
shall, in addition to complying with any applicable notification requirements under N.C.G.S.
130A-310.l and 143-215.84, and Section 103 ofCERCLA, 42 U.S.C. § 9603, or any other Jaw,
immediately notify DENR of such release or threatened release.
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VIII. CERTIFICATION
24. By entering into this agreement, the Prospective Developer certifies that, without
DENR approval, it will not make or allow use of the Property other than that committed to in the
Brownfields Letter of Intent dated June 18, 2008 by which it applied for this Agreement. That
use is retail and any other commercial uses DENR approves in writing in advance, and
residential use. Prospective Developer also certifies that to the best of its knowledge and belief it
has fully and accurately disclosed to DENR all information known to Prospective Developer and
all information in the possession or control of its officers, directors, employees, contractors and
agents which relates in any way to any regulated substances at the Property and to its
qualification for this Agreement, including the requirement that it not have caused or contributed
to the contamination at the Property.
IX. DENR'S COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
25. Unless any of the following apply, Prospective Developer shall not be liable to
DENR, and DENR covenants not to sue Prospective Developer, for remediation of the Property
except as specified in this Agreement:
a. The Prospective Developer fails to comply with this Agreement.
b. The activities conducted on the Property by or under the control or direction
of the Prospective Developer increase the risk of harm to public health or the environment, in
which case Prospective Developer shall be liable for remediation of the areas of the Property,
remediation of which is required by this Agreement, to the extent necessary to eliminate such
risk of harm to public health or the environment.
c. A land use restriction set out in the Notice of Brownfields Property required
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under N.C.G.S. 130A-3 l 0.35 is violated while the Prospective Developer owns the Property, in
which case the Prospective Developer shall be responsible for remediation of the Property to
unrestricted use standards.
d. The Prospective Developer knowingly or recklessly provided false information
that formed a basis for this Agreement or knowingly or recklessly offers false information to
demonstrate compliance with this Agreement or fails to disclose relevant information about
contamination at the Property.
e. New information indicates the existence of previously unreported
contaminants or an area of previously unreported contamination on or associated with the
Property that has not been remediated to unrestricted use standards, unless this Agreement is
amended to include any previously unreported contaminants and any additional areas of
contamination. If this Agreement sets maximum concentrations for contaminants, and new
information indicates the existence of previously unreported areas of these contaminants, further
remediation shall be required only if the areas of previously unreported contaminants raise the
risk of the contamination to public health or the environment to a level less protective of public
health and the environment than that required by this Agreement.
f. The level of risk to public health or the environment from contaminants is
unacceptable at or in the vicinity of the Property due to changes in exposure conditions,
including (i) a change in land use that increases the probability of exposure to contaminants at or
in the vicinity of the Property or (ii) the failure of remediation to mitigate risks to the extent
required to make the Property fully protective of public health and the environment as planned in
this Agreement.
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g. The Department obtains new information about a contaminant associated with
the Property or exposures at or around the Property that raises the risk to public health or the
environment associated with the Property beyond an acceptable range and in a manner or to a
degree not anticipated in this Agreement.
h. The Prospective Developer fails to file a timely and proper Notice of
Brownfields Property under N .C.G.S. 130A-310.35.
26. Except as may be provided herein, DENR reserves its rights against Prospective
Developer as to liabilities beyond the scope of the Act, including those regarding petroleum
underground storage tanks pursuant to Part 2A, Article 21 A of Chapter 143 of the General
Statutes.
27. This Agreement does not waive any applicable requirement to obtain a permit,
license or certification, or to comply with any and all other applicable law, including the North
Carolina Environmental Policy Act, N.C.G.S. § l 13A-1, et seq.
X. PROSPECTIVE DEVELOPER'S COVENANT NOT TO SUE
28. 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-3 l 0.3 7(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 of Brownfields Property.
XI. PARTIES BOUND & TRANSFER/ASSIGNMENT NOTICE
29. This Agreement shall apply to and be binding upon DENR, and on the Prospective
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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 terms and conditions of
this Agreement and to legally bind the Party for whom she or he signs.
30. No later than 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
31. 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 permits or of the provisions ofN.C.G.S. §
130A-310.37.
32. Except for the Land Use Restrictions set forth in paragraph 20 above and N.C.G.S. §
130A-3 l 0.33(a)(l )-(S)'s provision of the Act's liability protection to certain persons to the same
extent as to a prospective developer, no rights, benefits or obligations conferred or imposed upon
Prospective Developer under this Agreement are conferred or imposed upon any other person.
XIII. DOCUMENT RETENTION
33. The Prospective Developer agrees to retain and make available to DENR all business
and operating records, contracts, site studies and investigations, and documents relating to
operations at the Property, for ten years following the effective date of this Agreement, unless
otherwise agreed to in writing by the Parties. At the end often years, the Prospective Developer
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shall notify DENR of the location of such documents and shall provide DENR with an
opportunity to copy any documents at the expense ofDENR.
XIV. PAYMENT OF ENFORCEMENT COSTS
34. If the Prospective Developer fails to comply with the terms of this Agreement,
including, but not limited to, the provisions of Section V (Work to be Performed), it shall be
liable for all litigation and other enforcement costs incurred by DENR to enforce this Agreement
or otherwise obtain compliance.
XV. NOTICES AND SUBMISSIONS
35. Unless otherwise required by DENR or a Party notifies the other Party in writing of a
change in contact information, all notices and submissions pursuant to this Agreement shall be
sent by prepaid first class U.S. mail, as follows:
a. forDENR:
Carolyn Minnich
N.C. Division of Waste Management
Brownfields Program
40 I Oberlin Road, Suite 150
Raleigh, NC 27605
b. for Prospective Developer:
Spiro Hondros
Arrowood Nations Ford Property, LLC
3309-b Washburn Avenue
Charlotte, NC 28205
Prospective Developer shall also send any and all notices and submissions this Agreement
requires it to send to any and all other state and federal agencies regulating any matters
pertaining to the Property's environment, and to the chief public health and environmental
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officials of the county where the Property lies. Notices and submissions sent by prepaid first
class U.S. mail shall be effective on the third day following postmarking. Notices and
submissions sent by hand or by other means affording written evidence of date of receipt shall be
effective on such date.
XVI. EFFECTIVE DATE
36. This Agreement shall become effective on the date the Prospective Developer signs
it, after receiving it, signed, from DENR. Prospective Developer shall sign the Agreement
within seven (7) days following such receipt.
XVII. TERMINATION OF CERTAIN PROVISIONS
37. If any Party believes that any or all of the obligations under Section VI
(Access/Notice to Successors in Interest) are no longer necessary to ensure compliance with the
requirements of the Agreement, that Party may request in writing that the other Party agree to
terminate the provision(s) establishing such obligations; provided, however, that the provision(s)
in question shall continue in force unless and until the Party requesting such termination receives
written agreement from the other Party to terminate such provision(s).
XVIII. CONTRIBUTION PROTECTION
38. With regard to claims for contribution against Prospective Developer in relation to
the subject matter of this Agreement, Prospective Developer is entitled to protection from such
claims to the extent provided by N.C.G.S. § 130A-310.37(a)(5)-(6). The subject matter of this
Agreement is all remediation taken or to be taken and response costs incurred or to be incurred
by DENR or any other person in relation to the Property.
39. The Prospective Developer agrees that, with respect to any suit or claim for
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contribution brought by it in relation to the subject matter of this Agreement, it will notify DENR
in writing no later than 60 days prior to the initiation of such suit or claim.
40. The Prospective Developer also agrees that, with respect to any suit or claim for
contribution brought against it in relation to the subject matter of this Agreement, it will notify
DENR in writing within 10 days of service of the complaint on it.
XIX. PUBLIC COMMENT
41. This Agreement shall be subject to a public comment period of at least 30 days
starting the day after publication of the approved summary of the Notice oflntent to Redevelop a
Brownfields Property required by N.C.G.S. § 130A-310.34 in the North Carolina Register, or the
day after publication of the same in a newspaper of general circulation serving the area in which
the Property is located, whichever occurs later. After expiration of that period, or following a
public meeting ifDENR holds one pursuant to N.C.G.S. § 130A-310.34(c), DENR may modify
or withdraw its consent to this Agreement if comments received disclose facts or considerations
which indicate that this Agreement is inappropriate, improper or inadequate.
IT IS SO AGREED:
ARROWOOD NATIONS FORD PROPERTY, LLC
By:Je 1~
Spiro Hondros
Manager
Hondros BFA
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' Date
Date
SURVEYOR'S DESCRIPTION:
LEGAL DESCRIPTION
ARROWOOD NATIONS FORD PROPERTY. LLC
EAST ARROWOOD ROAD AND NATIONS FORD ROAD
CHARLOTTE, NC
BEING THAT CERTAIN TRACT OR PARCEL OF LAND LOCATED IN THE CITY OF
CHARLOTTE. MECKLENBURG COUNTY, NORTH CAROLINA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A NEW IRON ROD IN THE SOUTHERLY MARGIN OF EAST ARROWOOD
ROAD (VARIABLE WIDTH PUBLIC RIGHT-OF-WAY,), SAID IRON BEING ON THE EASTERLY
LINE, IF EXTENDED, OF COMMON OPEN SPACE #7 AS SHOWN ON THE PLAT OF KINGS
CREEK SUBDIVISION, AS RECORDED IN MAP BOOK 40, PAGE 943 OF THE
MECKLENBURG COUNTY PUBLIC REGISTRY; AND RUNS THENCE FROM SAID BEGINNING
POINT WITH THE EASTERLY LINE OF THE KINGS CREEK SUBDIVISION SOUTH 13°43'15"
WEST A DISTANCE OF 1,088.53 FEET TO AN EXISTING STONE WITH A PUNCH HOLE AT A
NORTHERLY CORNER OF THE JEFFERSON-PILOT COMMUNICATIONS COMPANY OF N.C.
PROPERTY AS DESCRIBED IN DEED BOOK 14661, PAGE 314 OF SAID REGISTRY: THENCE
WITH THE NORTHERLY LINE OF THE JEFFERSON-PILOT COMMUNICATIONS COMPANY
OF N. C. PROPERTY THE FOLLOWING THREE (3) COURSES AND DISTANCES: 1.) NORTH
83°32'01" WEST A DISTANCE OF 213.55 FEET TOAN EXISTING IRON ROD; 2.) NORTH
83°31'03" WEST A DISTANCE OF 343.00 FEET TOAN EXISTING IRON ROD; 3.) NORTH
83°35'51" WEST A DISTANCE OF 101.27 FEET TO AN EXISTING IRON ROD AT THE
SOUTHEASTERLY CORNER OF THE BELLSOUTH COMMUNICATIONS INC. PROPERTY AS
DESCRIBED JN DEED BOOK 4754, PAGE 74 OF SAID REGISTRY; THENCE WITH THE LINE
OF BELLSOUTH THE FOLLOWING TWO (2) COURSES AND DISTANCES: 1.) NORTH
00°30'43" WEST A DISTANCE OF JOO.OJ FEET TO AN EXISTING CONCRETE MONUMENT; 2.)
NORTH 83°3J'J3" WEST A DISTANCE OF 144.16 FEET TOA NEW IRON ROD ON THE
EASTERLY MARGIN OF NATIONS FORD ROAD (VARIABLE WIDTH PUBLIC
RIGHT-OF-WAY); THENCE WITH THE EASTERLY MARGIN OF NATIONS FORD ROAD
NORTH 00°2J '25" WEST A DISTANCE OF 240.42 FEET TO A NEW IRON ROD ON THE
SOUTHERLY LINE OF THE OSEI ENTERPRISES LLC PROPERTY AS DESCRIBED JN DEED
BOOK 10988, PA GE 4 7 OF SAJ D REGISTRY; THENCE WJTH THE LINE OF OSEI
ENTERPRISES LLC THE FOLLOWING THREE (3) COURSES AND DISTANCES: J.) NORTH
89°28'43" EAST A DISTANCE OF J88. 74 FEET TO AN EXISTING IRON ROD; 2.) NORTH
00°31 '50" WEST A DISTANCE OF 99.88 FEET TO A NEW IRON ROD; 3.) NORTH 00°29'30"
WEST A DISTANCE OF 287.39 FEET TO A NEW IRON ROD ON THE SOUTHERLY MARGIN OF
EAST ARROWOOD ROAD; THENCE WITH THE SOUTHERLY MARGIN OF EAST ARROWOOD
ROAD THE FOLLOWING THREE 93) COURSES AND DISTANCES: J.) NORTH 73°19'24" EAST
A DISTANCE OF 220.53 FEET TO A NEW IRON ROD; 2.) NORTH 75°14'42" EAST A DISTANCE
OF 188.57 FEET TOAN EXISTING IRON ROD; 3.) NORTH 75°J2'02" EAST A DISTANCE OF
494.92 FEET TO THE POINT AND PLACE OF BEGINNING; CONTAINING 712.941 SQUARE
FEET OR J6.3669 ACRES AS SHOWN ON A SURVEY PREPARED BY R. B. PHARR AND
ASSOC/A TES, P.A., DATED NOVEMBER 5, 2009 (MAP FILE W-3849).
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J. DAVID GRANBERRY
REGISTER OF DEEDS, MECKLENBURG
COUNTY & COURTS OFFICE BUILDING
720 EAST FOURTH STREET
CHARLOTTE, NC 28202
PLEASE RETAIN YELLOW TRAILER PAGE
It is part of the recorded document, and must be submitted with original for re-recording
and/or cancellation.
Filed For Registration: 03/05/2010 11:14:23 AM
Book: RE 25460 Page: 727-756
Document No.: 2010025359
N/INT 30 PGS $98.00
Recorder: KAMIL COOPER
I 11111111111111111111111111111111 11111111111
2010025359