QUIT CLAIM DEED OF CONVEYANCE

Transcription

1 BLANK SPACE FOR RECORDER OF DEEDS QUIT CLAIM DEED OF CONVEYANCE THIS QUIT CLAIM DEED OF CONVEYANCE is made and entered into by and between the United States of America, acting by and through the Deputy Assistant Secretary of the Army (Installations and Housing), United States Department of the Army, C/O Commander and District Engineer, United States Army Corps of Engineers, Louisville District, ATTN: CELRL-RE-S, P.O. Box 59, Louisville, Kentucky , hereinafter referred to as the Grantor, under and pursuant to the powers and authorities contained in the Defense Base Closure and Realignment Act of 1990 (Public Law , Part A, Title XXIX, Approved November 5, 1990, 104 Stat et seq., 10 U.S.C note), and acts supplementary thereto and amendatory thereof, and the Jo-Carroll Depot Local Redevelopment Authority, an agency of Jo Daviess County, Illinois and Carroll County, Illinois (established by intergovernmental agreement under and pursuant to the Intergovernmental Cooperation Act, 5 ILCS 220/1 et seq.), C/O David M. Ylinen, Executive Director, Jo-Carroll Depot Local Redevelopment Authority, A Street, Savanna, Illinois 61074, hereinafter referred to as the Grantee. WHEREAS, the 1995 Defense Base Closure and Realignment Commission, pursuant to Public Law , as amended, required the Department of Defense to close the military installation formerly known as the Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois (the former SVDA), and in connection therewith dispose of certain surplus real and personal property, and has made a final disposal decision with respect thereto; 1

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3 East feet to a fence post; thence South 56º East along the wire fence feet to a 5/8 iron rod; thence South 40º West feet to a 5/8 iron rod at the POINT OF BEGINNING, containing acres, more or less, in Jo Daviess County, Illinois. 1. AS IS AND WHERE IS QUIT CLAIM CONVEYANCE: The subject real estate (including all buildings and improvements located thereon) is conveyed AS IS AND WHERE IS without representation, warranty, or guaranty by the Grantor as to the quantity, quality, character, title, condition, size or kind, except for such warranties as are required by CERCLA, or that the same is in condition or fit to be used for the purpose for which intended and no claim for allowance or deduction upon such grounds will be considered. 2. ELECTRIC AND TELEPHONE UTILITY EASEMENTS WITHIN THE BOUNDARY OF THE TRACTS OF REAL ESTATE DESCRIBED IN ATTACHED EXHIBIT "A", WITH RESTRICTIVE USE CONDITIONS: Subject to the restrictive use conditions as set forth in this paragraph, the Grantor does hereby grant and quit claim unto the Grantee, its successors and assigns, nonexclusive, perpetual, and assignable easements thirty feet (30.00') in width on each side of the centerline of each electric and telephone utility (i.e. all electric and telephone facilities, and appurtenances/improvements, including all fittings and appliances thereto) located within the boundary of the tracts of real estate described in attached Exhibit "A". In the event an electric or telephone appurtenance/improvement is a facility (e.g. electric substation), the boundary of the easement shall be the physical area upon which the facility is located and shall further include an area thirty feet (30.00') in width on each side of the facility. Each referenced easement shall be subject to the following restrictive use conditions: (a.) The Grantee, its successors or assigns, shall not enter upon real estate owned by the Grantor, its successors or assigns, when accessing (i.e. ingress to and egress from) the referenced easements; (b.) During utility maintenance and repair operations, the Grantee, its successors or assigns, shall not conduct and shall not permit others to conduct (e.g. utility maintenance and repair contractors) soil intrusive activities (i.e. digging, drilling, or any other excavation or disturbance of the land surface or subsurface) without the prior written approval of the Commander's Representative, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois. The referenced approval shall be in writing and shall be dated and signed by the Commander's Representative, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois and shall not be unreasonably withheld or delayed; 3

4 (c.) The United States Of America, its officers, employees, contractors, or agents shall not be responsible for any damages whatsoever (e.g. including, but not limited to, any and all damages for personal injury; any and all damages for death; and any and all damages to property) which may arise from or be incident to the exercise of the easement rights granted in this paragraph. The Grantee, its successors or assigns, assume and shall be fully responsible for any damages whatsoever (e.g. including, but not limited to, any and all damages for personal injury; any and all damages for death; any and all damages to property) which may arise from or be incident to the exercise of the easement rights granted in this paragraph; and (d.) The Grantor, its assigns or assigns, shall have such rights and privileges as may be used without interfering with or abridging the above-referenced rights and easements. 3. ELECTRIC AND TELEPHONE UTILITY EASEMENTS WITHIN THE BOUNDARY OF THE REAL ESTATE AS SHOWN ON THE MAPS ATTACHED HERETO AS EXHIBITS "B" AND "C", WITH RESTRICTIVE USE CONDITIONS: Subject to the restrictive use conditions as set forth in this paragraph, the Grantor does hereby grant and quit claim unto the Grantee, its successors and assigns, nonexclusive, perpetual, and assignable easements thirty feet (30.00') in width on each side of the centerline of each electric and telephone utility (i.e. electric and telephone facilities and appurtenances/improvements, including all fittings and appliances thereto) as shown on the maps attached hereto (Exhibit "B" electric easements and Exhibit "C" telephone easements), and which are located within the boundary of the real estate to be transferred by the United States Department of the Army to the United States Department of the Interior (i.e. use of the United States Fish and Wildlife Service and two (2) proposed public benefit discount conveyances to the Illinois Department of Natural Resources). The referenced transfer will be consummated in the future, and the maps attached hereto (Exhibit "B" electric easements and Exhibit "C" telephone easements) depict the general location (emphasis added) of the above-referenced real estate (i.e. shaded in light green and shaded in dark green) and electric and telephone facilities and appurtenances/improvements. In the event an electric or telephone appurtenance/improvement is a facility (e.g. electric substation), the boundary of the easement shall be the physical area upon which the facility is located and shall further include an area thirty feet (30.00') in width on each side of the facility. Each referenced easement shall be subject to the following restrictive use conditions: (a.) The Grantee, its successors or assigns, shall not enter upon real estate owned by the Grantor, its successors or assigns, when accessing (i.e. ingress to and egress from) the referenced easements; (b.) During utility maintenance and repair operations, the Grantee, its successors or assigns, shall not conduct and shall not permit others to conduct (e.g. utility maintenance and repair contractors) soil intrusive activities (i.e. digging, drilling, or any other excavation or disturbance of the land surface or subsurface) without the prior 4

5 written approval of the Commander's Representative, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois. The referenced approval shall be in writing and shall be dated and signed by the Commander's Representative, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois and shall not be unreasonably withheld or delayed; (c.) The United States Of America, its officers, employees, contractors, or agents shall not be responsible for any damages whatsoever (e.g. including, but not limited to, any and all damages for personal injury; any and all damages for death; and any and all damages to property) which may arise from or be incident to the exercise of the easement rights granted in this paragraph. The Grantee, its successors or assigns, assume and shall be fully responsible for any damages whatsoever (e.g. including, but not limited to, any and all damages for personal injury; any and all damages for death; any and all damages to property) which may arise from or be incident to the exercise of the easement rights granted in this paragraph; and (d.) The Grantor, its assigns or assigns, shall have such rights and privileges as may be used without interfering with or abridging the above-referenced rights and easements. 4. RAILROAD EASEMENTS WITHIN THE BOUNDARY OF TRACT A AND TRACT B AS DESCRIBED IN ATTACHED EXHIBIT "A", WITH RESTRICTIVE USE CONDITIONS: Subject to the restrictive use conditions as set forth in this paragraph, the Grantor does hereby grant and quit claim unto the Grantee, its successors and assigns, nonexclusive, perpetual, and assignable easements thirty feet (30.00') in width on each side of the centerline of the railroad infrastructure (i.e. all railroad facilities and appurtenances/improvements, including tracks, ties, and ballast and all fitting and appliances thereto) located within the boundary of the Tract A and Tract B as described in attached Exhibit "A". In the event a railroad appurtenance/improvement is a facility (e.g. loading dock), the boundary of the easement shall be the physical area upon which the facility is located and shall further include an area thirty feet (30.00') in width on each side of the facility. Each referenced easement shall be subject to the following restrictive use conditions: (a.) The Grantee, its successors or assigns, shall not enter upon real estate owned by the Grantor, its successors or assigns, when accessing (i.e. ingress to and egress from) the referenced easements; (b.) During utility maintenance and repair operations, the Grantee, its successors or assigns, shall not conduct and shall not permit others to conduct (e.g. utility maintenance and repair contractors) soil intrusive activities (i.e. digging, drilling, or any other excavation or disturbance of the land surface or subsurface) without the prior written approval of the Commander's Representative, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois. The referenced approval shall be in writing 5

6 and shall be dated and signed by the Commander's Representative, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois and shall not be unreasonably withheld or delayed; (c.) The United States Of America, its officers, employees, contractors, or agents shall not be responsible for any damages whatsoever (e.g. including, but not limited to, any and all damages for personal injury; any and all damages for death; and any and all damages to property) which may arise from or be incident to the exercise of the easement rights granted in this paragraph. The Grantee, its successors or assigns, assume and shall be fully responsible for any damages whatsoever (e.g. including, but not limited to, any and all damages for personal injury; any and all damages for death; any and all damages to property) which may arise from or be incident to the exercise of the easement rights granted in this paragraph; and (d.) The Grantor, its assigns or assigns, shall have such rights and privileges as may be used without interfering with or abridging the above-referenced rights and easements. 5. TEMPORARY RAILROAD EASEMENTS WITHIN THE BOUNDARY OF THE REAL ESTATE AS SHOWN ON THE MAP ATTACHED HERETO AS EXHIBIT "D", WITH RESTRICTIVE USE CONDITIONS: Subject to the restrictive use conditions as set forth in this paragraph, the Grantor does hereby grant and quit claim unto the Grantee, its successors and assigns, temporary easements thirty feet (30.00') in width on each side of the centerline of the railroad infrastructure (i.e. railroad facilities and appurtenances/improvements, including tracks, ties, and ballast and all fitting and appliances thereto) as shown on the map attached hereto (Exhibit "D"), and which is located within the boundary of the real estate to be transferred by the United States Department of the Army to the United States Department of the Interior (i.e. use of the United States Fish and Wildlife Service). The referenced transfer will be consummated in the future, and the map attached hereto (Exhibit "D") depicts the general location (emphasis added) of the above-referenced real estate (i.e. shaded in light green) and railroad facilities and appurtenances/improvements. In the event a railroad appurtenance/improvement is a facility (e.g. loading dock), the boundary of the easement shall be the physical area upon which the facility is located and shall further include an area thirty feet (30.00') in width on each side of the facility. The easements granted in this paragraph shall be for a term of twelve (12) months and shall commence upon the date of the delivery and acceptance of this Quit Claim Deed Of Conveyance. Each referenced easement shall be subject to the following restrictive use conditions: (a.) The Grantee, its successors or assigns, shall not enter upon real estate owned by the Grantor, its successors or assigns, when accessing (i.e. ingress to and egress from) the referenced easements; 6

7 (b.) During utility maintenance and repair operations, the Grantee, its successors or assigns, shall not conduct and shall not permit others to conduct (e.g. utility maintenance and repair contractors) soil intrusive activities (i.e. digging, drilling, or any other excavation or disturbance of the land surface or subsurface) without the prior written approval of the Commander's Representative, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois. The referenced approval shall be in writing and shall be dated and signed by the Commander's Representative, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois and shall not be unreasonably withheld or delayed; (c.) The United States Of America, its officers, employees, contractors, or agents shall not be responsible for any damages whatsoever (e.g. including, but not limited to, any and all damages for personal injury; any and all damages for death; and any and all damages to property) which may arise from or be incident to the exercise of the easement rights granted in this paragraph. The Grantee, its successors or assigns, assume and shall be fully responsible for any damages whatsoever (e.g. including, but not limited to, any and all damages for personal injury; any and all damages for death; any and all damages to property) which may arise from or be incident to the exercise of the easement rights granted in this paragraph; and (d.) The Grantor, its assigns or assigns, shall have such rights and privileges as may be used without interfering with or abridging the above-referenced rights and easements. (e.) Subject to the conditions as set forth in this subparagraph, within twelve (12) months of the delivery and acceptance of this Quitclaim Deed Of Conveyance, the Grantee, its successors or assigns, shall remove all railroad infrastructure (i.e. all railroad facilities and appurtenances/improvements, including tracks, ties, and ballast and all fitting and appliances thereto) located within the boundary of the easement quit claimed in this paragraph. The Grantee, its successors and assigns, shall not remove the above-referenced infrastructure without prior written approval from the Grantor or its successors or assigns, which approval shall not be unreasonably withheld or delayed. The referenced approval shall be in writing; shall include, but shall not be limited to, work site railroad infrastructure removal and safety plans; work site restoration plans; environmental safety conditions and covenants; environmental liability covenants; ordnance and explosives safety conditions and covenants; and ordnance and explosives liability covenants; and shall be dated and signed by the Commander's Representative, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois or by the Grantor's successors or assigns. 6. RESERVATION OF EASEMENTS WITHIN THE BOUNDARY OF THE SUBJECT REAL ESTATE: (a.) The Grantor does hereby reserve a nonexclusive, perpetual, and assignable roadway easement and right-of-way in, on, over, and across Shinske Road (i.e. a vehicular roadway located along the northernmost boundary of the subject real estate) 7

8 located within the boundary of the subject real estate. The reservation of the abovereferenced nonexclusive, perpetual, and assignable roadway easement and right-of-way shall insure that the United States of America, its successors and assigns, shall have legal access to the balance of the real estate comprising the depot (i.e. Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois). (i.) The Grantee, its successors and assigns, shall be responsible for the maintenance of the above-referenced roadway, provided that (1.) the Grantee, its successors and assigns, shall only be required to maintain the above-referenced roadway in the condition it is in as of the date of the execution of the Memorandum Of Agreement made and entered into by and between the Grantor and the Grantee, and (2.) the Grantee, its successors and assigns, may discontinue, either permanently or temporarily, the use and maintenance of the above-referenced roadway for repair or other purposes, provided the Grantor, its successors and assigns, is given alternate access of the same or similar quality that meets the requirements of this reservation of nonexclusive, perpetual, and assignable roadway easement and right-of-way. The referenced responsibility of the Grantee, its successors and assigns, shall begin immediately upon the execution and delivery of the Lease In Furtherance of Conveyance and shall continue until such time as the above-referenced roadways are formally accepted into a public roadway or highway system (e.g., public roadway or highway system of Jo Daviess County, Illinois and Carroll County, Illinois). (ii.) The United States of America, its successors and assigns, shall release the above-referenced nonexclusive, perpetual, and assignable roadway easement and right-of-way upon formal acceptance of the above-referenced roadway into a public roadway or highway system (e.g., public roadway or highway system of Jo Daviess County, Illinois and Carroll County, Illinois). (b.) The Grantor does hereby reserve a perpetual and assignable access easement in, on, over, and across the subject real estate, including all buildings and structures located thereon, for any ordnance and explosives and/or unexploded ordnance clearance actions that the Grantor deems necessary in order to fulfill the Grantor's ordnance and explosives and/or unexploded ordnance responsibilities under this Quit Claim Deed Of Conveyance or applicable laws and regulations. In addition, the Grantor shall have the right to use the above-referenced access easement when conducting an ordnance and explosives and/or unexploded ordnance clearance actions on any adjoining property. In exercising this access easement, except in case of imminent endangerment to human life or the environment, the Grantor shall give the Grantee, its successors or assigns, at least thirty (30) days prior written notice of actions to be taken in clearing the subject real estate (or any part thereof) and shall use reasonable means without additional cost to the Grantor, to avoid and/or minimize interference with the use of the subject real estate (or any part thereof). Grantee agrees that, notwithstanding any other provisions of this Quit Claim Deed Of Conveyance, the Grantor assumes no liability to the Grantee, its successors or assigns, or any other person, should a clearance action interfere with the use of the subject real estate (or any part thereof). The Grantee, the then record owner, and any other person shall have no claim against the Grantor or any of its officers, agents, 8

9 employees, or contractors solely on account of any such interference resulting from such clearance actions. 7. CERCLA COVENANTS AND NOTICE: Pursuant to Section 120(h)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. Section 9601 et seq. ("CERCLA"): (a.) Notification And Covenants The Grantor hereby notifies the Grantee of the storage, release, and disposal of hazardous substances on the subject real estate. Available information regarding the type, quantity, and location of such substances and actions taken is set forth in attached Exhibit "E". The information regarding this storage, release, and disposal indicates that there is no unacceptable risk to human health and the environment. For the purpose of this Quit Claim Deed Of Conveyance, "hazardous substances" shall have the same meaning as Section 101 (14) of CERCLA.] (b.) The Grantor hereby covenants that: (i.) All remedial action necessary to protect human health and the environment with respect to any such hazardous substances remaining on the subject real estate has been taken prior to the delivery and acceptance of this Quit Claim Deed Of Conveyance; and (ii.) Any additional remedial action found to be necessary with regard to such hazardous substances remaining on the subject real estate after the date of the delivery and acceptance of this Quit Claim Deed Of Conveyance that resulted from past activities of the Grantor shall be conducted by the Grantor. This covenant shall not apply to the extent such remedial actions are caused by activities of the Grantee, its successors or assigns. (c.) Access Rights And Easement The Grantor does hereby reserve a perpetual and assignable access easement in, on, over, and across the subject real estate, including all buildings and structures located thereon, for any environmental inspections, monitoring, sampling, or testing actions; any environmental investigation actions (e.g. inspection, repair, replacement, removal, or installation of a groundwater monitoring well); any environmental remediation actions; any environmental corrective actions; or any other environmental actions (collectively "Response Actions") that the Grantor deems necessary in order to fulfill the Grantor's environmental responsibilities under this Quit Claim Deed Of Conveyance or applicable laws and regulations, including the right of the Grantor to ensure compliance with the restrictive covenants imposed by this Quit Claim Deed Of Conveyance. In addition, the Grantor shall have the right to use the above-referenced access easement when 9

10 conducting a Response Action on any adjoining property. In exercising this access easement, except in case of imminent endangerment to human health or the environment, the Grantor shall give the Grantee, or the then record owner, at least thirty (30) days prior written notice of actions to be taken in remediation of the subject real estate (or any part thereof) and shall use reasonable means without additional cost to the Grantor, to avoid and/or minimize interference with the use of the subject real estate (or any part thereof). Grantee agrees that, notwithstanding any other provisions of this Quit Claim Deed Of Conveyance, the Grantor assumes no liability to the Grantee, its successors or assigns, or any other person, should remediation of the subject real estate (or any part thereof) interfere with the use of the subject real estate. The Grantee, its successors and assigns, shall not through construction or operation/maintenance activities, interfere with any remediation or response action conducted by the Grantor under this subparagraph. The Grantee, the then record owner, and any other person shall have no claim against the Grantor or any of its officers, agents, employees, or contractors solely on account of any such interference resulting from such remediation. (d.) Transfer Documents The Grantee and its successors and assigns covenant and agree that all leases, transfers or conveyances of the subject real estate (or any part thereof) occurring subsequent to the date of the delivery and acceptance of this Quit Claim Deed Of Conveyance shall be made subject to, and shall have the benefit of, the provisions contained in these deed provisions. 8. FEDERAL FACILITIES AGREEMENT: The Grantor acknowledges that the Savanna Army Depot Activity, Illinois, has been identified as a National Priority List (NPL) site under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. The Grantee acknowledges that the Grantor has provided it with a copy of the Savanna Army Depot Activity Federal Facility Agreement (FFA) dated 26 September 1989 and will provide the Grantee with a copy of any amendments thereto. The Grantee, its successors and assigns, agrees that should any conflict arise between the terms of the FFA as they presently exist or may be amended, and the provisions of this property transfer, the terms of the FFA will take precedence. The Grantee, its successors and assigns, further agree that notwithstanding any other provisions of this Quit Claim Deed Of Conveyance, the Grantor assumes no liability from the Grantee, its successors and assigns, should implementation of the FFA interfere with their use of the subject real estate. The Grantee, its successors and assigns, shall have no claim on account of any such interference against the Grantor or any officer, agent, employee or contractor thereof. The Grantor shall, however, comply with the provisions of paragraph 7., subparagraph (c.), Access Rights and Easement, above, in the exercise of its rights under the FFA. 10

11 9. ENVIRONMENTAL BASELINE SURVEY ( EBS ) AND FINDING OF SUITABILITY TO TRANSFER ( FOST ): (a.) The Grantee has received and been provided the opportunity to review the technical environmental reports, including the final Environmental Baseline Survey for the subject real estate dated May 1999, and the FOST for the subject real estate dated March 17, 2003, prepared by the Grantor. The Grantee has inspected the subject real estate and accepts the physical condition and current level of environmental hazards on the subject real estate and deems the subject real estate to be safe for the Grantee s intended use. (b.) The Grantee, any successor, assignee, transferee, lender or lessee of the Grantee, or its successors or assigns, shall have no obligation to fund, participate in or complete the clean-up of existing hazardous substances, pollutants or contamination (collectively Contamination ) on or under the Property except the extent any such party caused or contributed to the Contamination as provided under Section 120 (h) of CERCLA. Furthermore, the Grantor shall not be liable hereunder to perform or fund any response actions under CERCLA or other applicable law required (i) due to a violation by the Grantee, its successors or assigns, of any of the land use restrictions contained in Paragraph 9 hereof, or (ii) to facilitate land uses prohibited by said land use restrictions. 10. LAND USE RESTRICTIONS: The Department of the Army has undertaken careful environmental study of the subject real estate and concluded that the highest and best use of the subject real estate is limited by its environmental condition to commercial and industrial uses. In order to protect human health and the environment, promote community objectives, and further the common environmental objectives and land use plans of the Grantor, the State of Illinois, and the Grantee, covenants and restrictions shall be included to assure the use of the subject real estate is consistent with the environmental condition of the subject real estate. The following restrictions and covenants benefit both the lands retained by the Grantor and the general public welfare and are consistent with State of Illinois and Federal environmental statutes. (a.) Commercial/Industrial Use Restrictions (i.) The Grantee, its successors and assigns, covenants that the subject real estate shall be used solely for commercial, industrial and agricultural purposes and not for residential purposes. Commercial and industrial uses include, but are not limited to, administrative/office space, manufacturing, warehousing, restaurants, hotels/motels, and retail activities. Residential use includes, but is not limited to, housing, day care facilities, schools (excluding education and training programs for persons over 18 years of age), assisted living facilities, and outdoor recreational activities (excluding recreational activities by employees and their families incidental to authorized commercial and industrial uses on the subject real estate). 11

12 (ii.) Nothing contained herein shall preclude the Grantee from undertaking, in accordance with applicable laws and regulations, such additional remediation necessary to allow for residential or other uses of the subject real estate which are prohibited by the restriction (collectively new uses ). Any additional environmental remediation studies and activities that would permit use of the subject real estate (or any part thereof) in a manner different from that restricted in the recorded Quit Claim Deed of Conveyance will be at no additional cost to the Grantor and with the Grantor's prior written consent, which consent shall not be unreasonably withheld or delayed. Consent may be conditioned upon such terms and conditions as are reasonable and appropriate, including performance and payment bonds and insurance. Upon completion of such remediation and upon the Grantee demonstrating compliance with all federal, state and local laws authorizing such use, the Army agrees to release or, if appropriate, modify this restriction by executing and recording, in the same land records of the State of Illinois as the Quit Claim Deed Of Conveyance, a Partial Release of Covenant. The Grantor shall bear the cost of recording and reasonable administrative fees as well as any other costs associated with changing the use of the subject real estate. (b.) Ground Water Restriction The Grantee and its successors and assigns covenants, not to access the ground water, except from the potable water system and the potable water sources of the Savanna Army Depot Activity, in use on the date of the delivery and acceptance of this Quit Claim Deed Of Conveyance, or use ground water underlying the subject real estate for any purpose without the prior written approval of Grantor, which approval may require the Grantor to receive concurrence from the State of Illinois Environmental Protection Agency (IEPA), and the USEPA, and which approval will not be unreasonably withheld or delayed. However, the Grantee, its successors and assigns, are authorized to install groundwater monitoring wells for the sole purpose of environmental investigation or remediation, with the prior written approval of the Grantor, which approval may require the Grantor to receive concurrence from the USEPA and the IEPA, and which approval shall not be unreasonably withheld. For the purpose of this restriction, "ground water" shall have the same meaning as in Section 101(12) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). (c.) Soil Excavation Restrictions The Grantee, its successors and assigns, covenant to not conduct or permit others to: conduct any excavation, digging, drilling, or other disturbance of the soil or ground below a depth of 3 feet above the water table without the prior written approval of the Grantor, which approval shall not be unreasonably withheld or delayed. If the Grantee, its successors or assigns, encounters ground water or contaminated soil while conducting any excavation activities, the Grantee, its successors or assigns, will immediately cease such activities until the Grantor's written approval is obtained allowing such activities to continue. In granting excavation approval under this subparagraph, the Grantor may impose reasonable terms and conditions, on a case by case basis, that the Grantor deems 12

13 necessary to (i.) ensure compliance with the Savanna Army Depot Data Collection Quality Assurance Plan dated September 1999 and any amendments thereto, and other applicable requirements to protect human health and the environment and (ii.) to ensure proper disposal of contaminated soil and/or groundwater at no expense to the Grantor. (d.) Enforcement (i.) The above covenants and land use restrictions shall inure to the benefit of the public in general and adjacent lands, including lands retained by the United States, and, therefore, are enforceable by the Grantor and the State of Illinois. These restrictions and covenants are binding on the Grantee, its successors and assigns; shall run with the land; and are forever enforceable. (ii.) The Grantee, its successors and assigns, shall include and otherwise make legally binding the above land use restrictions in all subsequent lease, transfer or conveyance documents relating to the subject real estate. Notwithstanding this provision, failure to include these land use restrictions in subsequent conveyances does not abrogate the status of these restrictions as binding upon the parties, their successors and assigns. (iii.) The Grantee, its successors and assigns, shall not undertake or allow any activity on or use of the subject real estate that would violate the land use restrictions contained herein. The Grantee, its successors and assigns, covenant and agree that the Grantee or the then record owner of the subject real estate will be fully responsible for any investigation and/or remediation of hazardous substances, pollutants or contaminants, or petroleum or petroleum derivatives, to the extent that such investigation and/or remediation becomes necessary in response to a violation of the land use restrictions in this paragraph, LAND USE RESTRICTIONS. (e.) Submissions (i.) Modification of Restrictions The Grantee shall submit any requests to install monitoring wells, to construct subsurface structures for human occupation, or for other modifications to the above restrictions to the Grantor, with a copy to USEPA and IEPA, by first class mail, postage prepaid, addressed as follows: to Grantor: Commander's Representative Savanna Army Depot Activity 2750 Kinney Loop Savanna, IL

14 to USEPA: Savanna Project Manager SR-6J US Environmental Protection Agency (Region V) 77 West Jackson Blvd. Chicago, IL to Illinois EPA: Savanna Project Manager Illinois Environmental Protection Agency 1340 N. Ninth Street Springfield, IL (ii.) Excavation Requests. Grantee shall submit all requests for excavation approval as required by subparagraph (c.) to the Grantor at the mailing address set forth in Subsection 4E above. 11. NOTICE OF ORDNANCE AND EXPLOSIVES (OE) AND EXPLOSVIES CONTAMINATION AND RESTRICTIVE COVENANT: (CHANGED TO REFLECT MOA LANGUAGE) (a.) The Grantor completed a comprehensive records search (the Archive Search Report, ASR) and, based on that search, has undertaken and completed statistical and physical testing of certain areas on the former SVDA where the presence of Ordnance and Explosives ( OE ) and Explosives Contamination was considered possible. Based upon said search and testing, the Grantor represents that, to the best of its knowledge, no OE is currently present on the subject real estate. Notwithstanding the records search and testing conducted by the Grantor, the parties acknowledge that, due to the former use of the subject real estate as an active military installation with a history of OE use, there is a possibility that OE to be present on the subject real estate. Upon due notice, the Grantor agrees to remove any such remaining OE discovered on the subject real estate, as required under applicable law and regulations, as expeditiously as is reasonable and practicable, subject to the availability of funds, except as provided for in subparagraph (b.) below. (b.) If the Grantee, any subsequent owner, or any other person should find any OE on the subject real estate, they should not attempt to disturb, move, remove or destroy it, but shall immediately notify the local police department and the Army. A competent Army or Army-designated explosive ordnance professional will be dispatched promptly to dispose of such ordnance properly at no expense to the Grantee or any subsequent owner. 12. NOTICE OF THE PRESENCE OF LEAD-BASE PAINT AND COVENANT AGAINST THE USE OF THE SUBJECT REAL ESTATE FOR RESIDENITIAL PURPOSES: (a.) The Grantee is hereby informed and does acknowledge that all buildings on the subject real estate, which were constructed or rehabilitated prior to 1978, are presumed to contain lead-based paint. Lead from paint, paint chips, and dust can pose 14

15 health hazards if not managed properly. Every purchaser of any interest in Residential Real Property on which a residential dwelling was built prior to 1978 is notified that such property may present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning. Lead poisoning in young children may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavioral problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant women. The seller of any interest in Residential Real Property is required to provide the buyer with any information on lead-based paint hazards from risk assessments or inspections in the seller's possession and notify the buyer of any known lead-based paint hazards. "Residential Real Property" means dwelling units, common areas, building exterior surfaces, and any surrounding land, including outbuildings, fences and play equipment affixed to the land, available for use by residents; and, buildings visited regularly by the same child, 6 years of age or under, on at least two different days within any week, including day-care centers, preschools and kindergarten classrooms; but, not including land used for agricultural, commercial, industrial, or other non-residential purposes, and not including paint on the pavement of parking lots, garages, or roadways. (b.) Available information concerning known lead-based paint and/or leadbased paint hazards, the location of lead-based paint and/or lead-based paint hazards, and the condition of painted surfaces for the former SVDA is contained in the Environmental Baseline Survey completed by the Grantor and dated May All purchasers must receive the federally approved pamphlet on lead poisoning prevention. The Grantee hereby acknowledges receipt of all of the information described in this subparagraph. (c.) The Grantee acknowledges that it has received the opportunity to conduct its own risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards prior to execution of this Quit Claim Deed Of Conveyance. (d.) The Grantee covenants and agrees that it shall not permit the occupancy or use of any buildings or structures on the subject real estate as Residential Real Property, as defined in subparagraph (a.), above, without complying with this section and all applicable federal, state, and local laws and regulations pertaining to lead-based paint and/or lead-based paint hazards. Prior to permitting the occupancy of the subject real estate where its use subsequent to sale is intended for residential habitation, the Grantee specifically agrees to perform, at its sole expense, the Army's abatement requirements under Title X of the Housing and Community Development Act of 1992 (Residential Lead- Based Paint Hazard Reduction Act of 1992) (hereinafter Title X). The Grantee shall, after consideration of the guidelines and regulations established pursuant to Title X: (1) Perform a Risk Assessment if more than 12 months have elapsed since the date of the last Risk Assessment; (2) Comply with the joint Housing and Urban Development (HUD) and Environmental Protection Agency (EPA) Disclosure Rule (24 CFR 35, Subpart A, 40 CFR 745, Subpart F), when applicable, by disclosing to prospective purchasers the known presence of lead-based paint and/or lead-based paint hazards as determined by previous risk assessments; (3) Abate lead dust and lead-based paint hazards in pre-1960 Residential Real Property, as defined in subparagraph (a.), above, in 15

16 accordance with the procedures in 24 CFR 35; (4) Abate soil-lead hazards in pre-1978 Residential Real Property, as defined in subparagraph (a.), above, in accordance with the procedures in 24 CFR 35; (5) Abate lead-soil hazards following demolition and redevelopment of structures in areas that will be developed as Residential Real Property; (6) Comply with the EPA lead-based paint work standards when conducting lead-based paint activities (40 CFR 745, Subpart L); (7) Perform the activities described in this paragraph within 12 months of the date of the lead-based paint risk assessment and prior to occupancy or use of the Residential Real Property; and (8) Send a copy of the clearance documentation to the Army. In complying with these requirements, the Grantee covenants and agrees to be responsible for any abatement or remediation of lead-based paint or lead-based paint hazards on the subject real estate found to be necessary as a result of the subsequent use of the subject real estate for residential purposes. The Grantee covenants and agrees to comply with solid or hazardous waste laws that may apply to any waste that may be generated during the course of lead-based paint abatement activities. (e.) The Grantee further agrees to indemnify and hold harmless the Army, its officers, agents and employees, from and against all suits, claims, demands, or actions, liabilities, judgments, costs and attorney's fees arising out of, or in a manner predicated upon personal injury, death or property damage resulting from, related to, caused by or arising out of lead-based paint or lead-based paint hazards on the subject real estate if used for residential purposes. The Grantee, its successors and assigns, assume no liability for damages for personal injury, illness, disability, death or property damages, or indemnification obligations hereunder, arising from any exposure or failure to comply with any legal requirements applicable to lead based paint on any portion of the subject real estate arising prior to the Grantor s conveyance or lease of the subject real estate to the Grantee. (f.) The covenants, restrictions, and requirements of this Section shall be binding upon the Grantee, its successors and assigns and all future owners and shall be deemed to run with the land. The Grantee on behalf of itself, its successors and assigns covenants that it will include and make legally binding, this Section in all subsequent transfers, leases, or conveyance documents. 13. NOTICE OF THE PRESENCE OF ASBESTOS AND COVENANT. (a.) The Grantee is hereby informed and does acknowledge that friable and non-friable asbestos or asbestos-containing materials (ACM) have been found on the subject real estate. The locations and conditions of the ACM are described in the EBS, dated May 1999, and asbestos survey/assessments dated May 1989, January 2001 and January (b.) The Grantee covenants and agrees that its use and occupancy of the subject real estate will be in compliance with all applicable laws relating to ACM; and that the Grantor assumes no liability for future remediation of any ACM or damages for 16

17 personal injury, illness, disability, or death, to the Grantee, its successors or assigns, or to any other person, including members of the general public, arising from or incident to the purchase, transportation, removal, handling, use, disposition, or other activity causing or leading to contact of any kind whatsoever with ACM on the subject real estate after the date of this Quit Claim Deed Of Conveyance, whether the Grantee, its successors or assigns have properly warned or failed to properly warn the individual(s) injured. The Grantee, its successors and assigns, assume no liability for damages or remediation for personal injury, illness, disability, death, or property damage arising from (i) any exposure to ACM that resulted prior to the Grantor's conveyance of such portion of the subject real estate to the Grantee pursuant to this Quit Claim Deed Of Conveyance or any leases entered into between the Grantor and Grantee, or (ii) any disposal of ACM by the Grantor, prior to the Grantor s conveyance of the subject real estate to the Grantee. (c.) The Grantee acknowledges that it has had the opportunity to inspect the subject real estate as to its ACM content and condition and any hazardous or environmental conditions relating thereto. The failure of the Grantee to inspect or be fully informed regarding the quantity of ACM in the buildings described in the EBS will not constitute grounds for any claim or demand against the United States. (d.) The Grantee, its successors and assigns are hereby informed that unprotected or unregulated exposures to ACM in product manufacturing, shipyard, building construction workplaces have been associated with asbestos-related diseases. Both the Occupational Safety and Health Administration (OSHA) and the EPA regulate asbestos because of the potential hazards associated with exposure to airborne asbestos fibers. Both OSHA and EPA have determined that such exposure increases the risk of asbestos-related diseases, which include certain cancers and which can result in disability or death. (e.) The Grantee further agrees to indemnify and hold harmless the Grantor, its officers, agents and employees, from and against all suits, claims, demands or actions, liabilities, judgments, costs and attorneys' fees arising out of, or in any manner predicated upon, exposure to ACM on any portion of the subject real estate after this conveyance of the subject real estate to the Grantee or any future remediation or abatement of asbestos or the need therefore. The Grantee's obligation hereunder shall apply whenever the United States incurs costs or liabilities for actions giving rise to liability under this section. 14. PCB CONTAINING EQUIPMENT NOTIFICATION: The Grantee is hereby informed and does acknowledge that equipment containing polychlorinated biphenyls (PCBs) existed at one time on the subject real estate. All suspected PCB equipment has been tested and PCB containing items removed and disposed. All vaults located on the subject real estate have been removed. 17

18 15. NOTICE OF THE FORMER USE OF RADIOACTIVE MATERIALS: As described in the EBS, radioactive materials and sources (such as luminous paint, lens coatings, calibration sources, and other sealed sources) were used in a structure (i.e. Building 914, Savanna Army Depot Activity, Jo Daviess County and Carroll County, Illinois) located upon the subject real estate. As described in the EBS, a radiation survey indicated that the radiation on the subject real estate is at background levels or below action levels and, therefore, does not pose a threat to human health or the environment. 16. STATUTORY INDEMNIFICATION: The Grantor recognizes its obligation to hold harmless, defend, and indemnify the Grantee and any successor, assignee, transferee, lender, or lessee of the Grantee or its successors and assigns, as required and limited by Section 330 of the Department of Defense Authorization Act of 1993, as amended, and to other wise meet its obligations under law. 17. INCLUSION OF PROVISIONS: The Grantee, its successors and assigns, shall neither transfer the subject real estate, lease the subject real estate, nor grant any interest, privilege, or license whatsoever in connection with the subject real estate without the inclusion of the environmental protection provisions contained herein, and shall require the inclusion of such environmental protection provisions in all further deeds, transfers, leases, or grants of any interest, privilege, or license. 18. AIR NAVIGATION RESTRICTION: The Grantee, its successors and assigns, and every successor in interest to the subject real estate (or any part thereof) shall prohibit any construction or alteration above one hundred feet (100.00') on the subject real estate, or any part thereof, unless a determination of no hazard to air navigation is issued by the Federal Aviation Administration in accordance with Title 14 Code of Federal Regulations, Part 77, entitled "Objects Affecting Navigable Airspace," or under the authority of the Federal Aviation Act of 1958, as amended. 19. NON-DISCRIMINATION PROVISION: The Grantee shall not discriminate upon the basis of race, color, religion, sex, age, disability, or national origin in the use, occupancy, sale, or lease of the subject real estate (or any part thereof) or in their employment practices conducted thereon in violation of the provisions of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d); the Age Discrimination Act of 1975 (42 U.S.C. 6102); and the Rehabilitation Act of 1973, as amended (29 U.S.C. 794). The Grantor shall be deemed a beneficiary of this assurance without regard to whether it remains the owner of any real estate or 18

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