DECLARATION OF RESTRICTIVE COVENANT

Transcription

1 This instrument was prepared by: Jason S. Lichtstein, Esq. Akerman LLP 106 E. College Avenue Suite 1200 Tallahassee, FL Tel: (850) Fax: (850) DECLARATION OF RESTRICTIVE COVENANT This DECLARATION OF RESTRICTIVE COVENANT (hereinafter "Declaration") is made by the CITY OF BRADENTON, FLORIDA (hereinafter "GRANTOR"), and the FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (hereinafter "FDEP"). RECITALS A. GRANTOR is the fee simple owner of that certain real property situated in the City of Bradenton, County of Manatee, State of Florida, more particularly described in Exhibit A attached hereto and made a part hereof (hereinafter the "Property"); B. The Property owned by GRANTOR is located adjacent to property identified as FDEP Facility Identification Number COM_65180, which has been assigned Brownfield Site ID # and is identified at the time of this Declaration as the BAV Bradenton Brownfield Site (the "BAV Brownfield Site"); C. The Property contains residual soil and groundwater impacts and GRANTOR is establishing this Declaration to implement institutional controls in order to enable the BAV Brownfield Site to obtain approval of a No Further Action with Conditions under Chapter , Florida Administrative Code. D. The BAV Brownfield Site was historically used as a manufactured gas plant and site assessment has been completed. In 2013, source removal was completed to remove contaminated soil above applicable commercial/industrial direct exposure and leachabilitybased soil cleanup target levels ("CTLs"). Environmental tests have identified certain soil samples collected from the BAV Brownfield Site remaining above applicable residential Page 1 of 12

2 direct exposure soil CTLs and certain groundwater samples above applicable CTLs. The presence of certain soil and groundwater above applicable CTLs remaining is documented in the following reports that are incorporated by reference: 1. Site Summary Report (August 1990 through December 2005), dated July 6, 2006, submitted by Ventures, XXV, Inc. f/k/a Bell Atlantic Ventures, XXV, Inc. ("Ventures"); Ventures; 2. Interim Source Removal Report, dated July 13, 2009, submitted by 3. Response to Florida Department of Environmental Protection April 7, 2010 Comment Letter, dated March 25, 2011, submitted by Ventures; 4. Response to Florida Department of Environmental Protection August 31, 2012 Comment Letter, dated November 19, 2012, submitted by Ventures; 5. Remedial Action Plan Confirmation Soil Sampling Work Plan, dated April 29, 2013, submitted by Ventures; Ventures; Ventures; 6. Interim Source Removal Report, dated January 30, 2015, submitted by 7. Groundwater Monitoring Report, dated January 30, 2015, submitted by 8. Interim Source Removal Report (Amended Figures), dated April , submitted by Ventures; and 9. Approval of the No Further Action with Controls (NFAC) proposal and request for draft restrictive covenant/engineering controls from FDEP dated December 22, E. The reports noted in Recital D set forth the nature and extent of the contamination described in Recital D that is located on the BAV Brownfield Site and the Property. These reports confirm that contaminated soil and groundwater as defined by Chapter , Florida Administrative Code (F.A.C.), exists on both the BAV Brownfield Site and the Property. F. It is the intent that the restrictions in this Declaration reduce or eliminate the risk of exposure of users or occupants of the Property and the environment to the contaminants and to reduce or eliminate the threat of migration of the contaminants. Page 2 of 12

3 G. FDEP has agreed to issue a Site Rehabilitation Completion Order with Conditions (hereinafter "Order") for the BAV Brownfield Site upon recordation of this Declaration, as well as the Declaration for the BAV Brownfield Site ("Ventures Declaration"). FDEP can unilaterally revoke the Order if the conditions of this Declaration, the Ventures Declaration or of the Order are not met. Additionally, if concentrations of contamination increase above the levels approved in the Order, or if a subsequent discharge occurs at the Property or the BAV Brownfield Site, FDEP may require site rehabilitation to reduce concentrations of contamination to the levels allowed by the applicable FDEP rules. The Order relating to FDEP Facility No. COM_65180 can be found by contacting the FDEP Southwest District Office. H. GRANTOR deems it desirable and in the best interest of all present and future owners of the Property that an Order be obtained and that the Property be held subject to certain restrictions, all of which are more particularly hereinafter set forth. NOW, THEREFORE, to induce FDEP to issue the Order and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the undersigned parties, GRANTOR agrees as follows: 1. The foregoing recitals are true and correct and are incorporated herein by reference. 2. GRANTOR hereby imposes the following restrictions and requirements: a.i. There shall be no use of the groundwater under the Property. There shall be no drilling for water conducted on the Property, nor shall any wells be installed on the Property other than monitoring wells pre-approved in writing by FDEP s Division of Waste Management ("DWM"), in addition to any authorizations required by the Division of Water Resource Management ("DWRM") and the Water Management District ("WMD"). Additionally, there shall be no stormwater swales, stormwater detention or retention facilities, or ditches on the Property except as may be approved by applicable agencies. a.ii. For any dewatering activities on the Property, a plan approved by FDEP s DWM must be in place to address and ensure the appropriate handling, treatment and disposal of any extracted groundwater that may be contaminated. b. The following uses of the Property are prohibited: agricultural use of the land including forestry, fishing and mining; hotels or lodging; recreational uses including amusement parks, parks, camps, museums, zoos, or gardens; residential uses, and educational uses such as elementary or secondary schools, or daycare services. These prohibited uses are specifically defined by using the North American Industry Classification System, United States, 2012 (NAICS), Executive Office of the President, Office of Management and Budget. The prohibited uses by Page 3 of 12

4 code are: Sector 11 Agriculture, Forestry, Fishing and Hunting; Subsector 212 Mining (except Oil and Gas); Code Drive-In Motion Picture Theaters; Code Libraries and Archives; Code Lessors of Residential Buildings and Dwellings; Subsector 6111 Elementary and Secondary Schools; Subsector 623 Nursing and Residential Care Facilities; Subsector 624 Social Assistance; Subsector 711 Performing Arts, Spectator Sports and Related Industries; Subsector 712 Museums, Historical Sites, and Similar Institutions; Subsector 713 Amusement, Gambling, and Recreation Industries; Subsector 721 Accommodation (hotels, motels, RV parks, etc.); Subsector 813 Religious, Grantmaking, Civic, Professional, and Similar Organizations; and Subsector 814 Private Households. c. Excavation and construction deeper than two feet below land surface is not prohibited on the Property provided any contaminated soils that are excavated are removed and properly disposed of pursuant to Chapter , F.A.C., and any other applicable local, state, and federal requirements. Nothing herein shall limit any other legal requirements regarding construction methods and precautions that must be taken to minimize risk of exposure while conducting work in contaminated areas. For any dewatering activities, a plan pre-approved by FDEP's DWM must be in place to address and ensure the appropriate handling, treatment, and disposal of any extracted groundwater that may be contaminated. 3. In the remaining paragraphs, all references to "GRANTOR" and "FDEP" shall also mean and refer to their respective successors and assigns. 4. For the purpose of monitoring the restrictions contained herein, FDEP is hereby granted a right of entry upon and access to the Property at reasonable times and with reasonable notice to GRANTOR. 5. It is the intention of GRANTOR that this Declaration shall touch and concern the Property, run with the land and with the title to the Property, and shall apply to and be binding upon and inure to the benefit of GRANTOR and FDEP, and to any and all parties hereafter having any right, title or interest in the Property or any part thereof. FDEP may enforce the terms and conditions of this Declaration by injunctive relief and other appropriate available legal remedies. Any forbearance on behalf of FDEP to exercise its right in the event of the failure of GRANTOR to comply with the provisions of this Declaration shall not be deemed or construed to be a waiver of FDEP's rights hereunder. This Declaration shall continue in perpetuity, unless otherwise modified in writing by GRANTOR and FDEP as provided in Paragraph 7 hereof. These restrictions may also be enforced in a court of competent jurisdiction by any other person, firm, corporation, or governmental agency that is substantially benefited by these restrictions. If GRANTOR does not or will not be able to comply with any or all of the provisions of this Declaration, GRANTOR shall notify FDEP in writing within three (3) calendar days. Additionally, GRANTOR shall notify FDEP thirty (30) days prior to any conveyance or sale, granting or transferring the Property or portion thereof, to any heirs, Page 4 of 12

5 successors, assigns, or grantees, including, without limitation, the conveyance of any security interest in said Property. 6. In order to ensure the perpetual nature of this Declaration, GRANTOR shall reference these restrictions in any subsequent lease or deed of conveyance, including the recording book and page of record of this Declaration. Furthermore, prior to the entry into a landlordtenant relationship with respect to the Property, GRANTOR agrees to notify in writing all proposed tenants of the Property of the existence and contents of this Declaration of Restrictive Covenant. 7. This Declaration is binding until a release of covenant is executed by FDEP Secretary (or designee) and is recorded in the public records of the county in which the land is located. To receive prior approval from FDEP to remove any requirement herein, cleanup target levels established pursuant to Florida Statutes and FDEP rules must be achieved. This Declaration may be modified in writing only. Any subsequent amendment must be executed by both GRANTOR and FDEP and be recorded by GRANTOR as an amendment hereto. 8. If any provision of this Declaration is held to be invalid by any court of competent jurisdiction, the invalidity of that provision shall not affect the validity of any other provisions of the Declaration. All such other provisions shall continue unimpaired in full force and effect. 9. GRANTOR covenants and represents that on the date of execution of this Declaration that GRANTOR is seized of the Property in fee simple and has good right to create, establish, and impose this restrictive covenant on the use of the Property. [SIGNATURES APPEAR ON FOLLOWING PAGES] Page 5 of 12

6 IN WITNESS WHEREOF, instrument, this day of, has executed this CITY OF BRADENTON, FLORIDA, a Florida municipality By: Name: Title: Full Mailing Address: 101 Old Main Street West Bradenton, Florida Signed, sealed and delivered in the presence of: Witness: Print Name: Witness: Print Name: Date: Date: STATE OF FLORIDA) COUNTY OF MANATEE) The foregoing instrument was acknowledged before me this day of 2017, by Personally Known OR Produced Identification Type of Identification Produced Signature of Notary Public Print Name of Notary Public Commission No. Commission Expires: Page 6 of 12

7 Approved as to form by the Florida Department of Environmental Protection, Office of General Counsel. IN WITNESS WHEREOF, the Florida Department of Environmental Protection has executed this instrument, this day of, FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION By: Name: Title: Mary Yeargan, P.G., Director Southwest District Office North Telecom Parkway Temple Terrace, Florida Signed, sealed and delivered in the presence of: Witness: Print Name: Witness: Print Name: Date: Date: STATE OF ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of, 2017, by as representative for the Florida Department of Environmental Protection. Personally Known OR Produced Identification Type of Identification Produced Page 7 of 12

8 Signature of Notary Public Print Name of Notary Public Commission No. Commission Expires: Page 8 of 12

9 EXHIBIT A LEGAL DESCRIPTION Page 9 of 12

10 Legal Description City of Bradenton Parcels Parcel 1: LOTS 1 THRU 12 BLK 19 LESS BEG AT NW COR OF BLK 19 ADAMS ANNEX, S FT, E 178 FT, N FT, W 89.1 FT, N 120 FT TO S LINE OF SIXTH AVE, THENCE WLY FOLLOWING S LINE OF SIXTH AVE 89 FT TO BEGIN ALSO LESS FOR RD R/W THAT PART INCLUDED INT THE FOLLOWING: A) THOSE PORTIONS OF LOTS 1 & 2, BLK 19, ADAMS ANEX TO BRAIDENTOWN, AS PER (PB 1 PG 158) AND THOSE PORTIONS OF LOTS 5 & 6, ROESCHS SUB, AS PER (PB 1 PG 142) ALL BEING IN SEC 26 PRMCF BEING DESC AS FOLLOWS: BEG AT THE NE COR OF SD LOT 5; TH S 00 DEG 11 MIN 34 SEC W FT ALG THE E LN OF SD LOT 5; TH N 89 DEG 39 MIN 12 SEC W 3.54 FT TO THE BEG OF A CURVE CONCAVE SWLY; TH ALG THE ARC OF SD CURVE TO THE LEFT HAVING A RAD OF FT, A C/A OF 63 DEG 04 MIN 09 SEC, AN ARC LENGTH OF FT, THE CHORD FOR WHICH BEARS N 31 DEG 11 MIN 16 SEC W TO THE END OF SD CURVE AND THE BEG OF A CURVE CONCAVE NLY; TH ALG THE ARC OF SD CURVE TO THE RIGHT, HAVING A RAD OF 7, FT, A C/A OF 01 DEG 56 MIN 13 SEC, AN ARC LENGTH OF FT, THE CHORD FOR WHICH BEARS N 87 DEG 51 MIN 54 SEC W TO THE END OF SD CURVE; TH N 86 DEG 53 MIN 47 SEC W, FT; TH N 00 DEG 10 MIN 54 SEC E, FT TO THE N LN OF SD LOT 2; TH N 88 DEG 59 MIN 25 SEC E, FT ALG THE N LN OF SD LOTS 1 & 2 TO THE NW COR OF SD LOT 6; TH N 88 DEG 59 MIN 21 SEC E, FT ALG THE N LN OF SD LOTS 5 & 6 TO THE POB. CONT 6,338 SF ( 1419/6450) PI# /6 Parcel 2: BEG AT A STAKE LOC AT THE INTERSECT OF THE 6TH AVE R/W LN WITH THE 3RD ST R/W LN; TH GO S 109 FT TH E 81.9 FT, TH GO N 109 FT TO THE R/W LN OF 6TH AVE TH W ALG SD R/W LN 81.9 FT TO THE POB, LESS 770 SF FOR RD R/W DESC AS FOLLOWS: THOSE PORTIONS OF LOTS 2 & 3, BLK 19, ADAMS ANEX TO BRAIDENTOWN AS PER PLAT BOOK 1, PAGE 158, IN SEC 26 PRMCF BEING DESC AS FOLLOWS: BEG AT THE NW COR OF SD LOT 3; TH N 88 DEG 59 MIN 25 SEC E FT ALG THE N LN OF SD LOTS 2 & 3; TH S 00 DEG 10 MIN 54 SEC W FT; TH N 86 DEG 53 MIN 47 SEC W FT TO THE BEG OF A CURVE CONCAVE SELY; TH ALG THE ARC OF SD CUVRE TO THE LEFT, HAVING A RAD OF FT, A C/A OF 44 DEG 08 MIN 47 SEC, AN ARC LENGTH OF FT, THE CHORD FOR WHICH BEARS S 45 DEG 15 MIN 49 SEC W TO THE W LN OF SD LOT 3 AND THE END OF SD CURVE; TH N 00 DEG 10 MIN 54 SEC E Page 10 of 12

11 21.74 FT ALG SD W LN TO THE POB, MANATEE COUNTY FLORIDA. PI# Parcel 3: LOTS 5,6,7,12 ROESCHS SUB LESS FOR RD R/W THAT PART INCLUDED IN THE FOLLOWING: A) THOSE PORTIONS OF LOTS 1 & 2, BLK 19, ADAMS ANEX TO BRAIDENTOWN, AS PER (PB 1 PG 158) AND THOSE PORTIONS OF LOTS 5 & 6, ROESCHS SUB, AS PER (PB 1 PG 142) ALL BEING IN SEC 26 PRMCF BEING DESC AS FOLLOWS: BEG AT THE NE COR OF SD LOT 5; TH S 00 DEG 11 MIN 34 SEC W FT ALG THE E LN OF SD LOT 5; TH N 89 DEG 39 MIN 12 SEC W 3.54 FT TO THE BEG OF A CURVE CONCAVE SWLY; TH ALG THE ARC OF SD CURVE TO THE LEFT HAVING A RAD OF FT, A C/A OF 63 DEG 04 MIN 09 SEC, AN ARC LENGTH OF FT, THE CHORD FOR WHICH BEARS N 31 DEG 11 MIN 16 SEC W TO THE END OF SD CURVE AND THE BEG OF A CURVE CONCAVE NLY; TH ALG THE ARC OF SD CURVE TO THE RIGHT, HAVING A RAD OF 7, FT, A C/A OF 01 DEG 56 MIN 13 SEC, AN ARC LENGTH OF FT, THE CHORD FOR WHICH BEARS N 87 DEG 51 MIN 54 SEC W TO THE END OF SD CURVE; TH N 86 DEG 53 MIN 47 SEC W, FT; TH N 00 DEG 10 MIN 54 SEC E, FT TO THE N LN OF SD LOT 2; TH N 88 DEG 59 MIN 25 SEC E, FT ALG THE N LN OF SD LOTS 1 & 2 TO THE NW COR OF SD LOT 6; TH N 88 DEG 59 MIN 21 SEC E, FT ALG THE N LN OF SD LOTS 5 & 6 TO THE POB. CONT 6,338 SF ( 1419/6450) PI# /0 City of Bradenton Rights-of-Way: All of that portion of the platted right-of way of 3 rd Street West as depicted on the Plat MAP OF ADAMS ANEX TO BRAIDENTOWN, according to the plat thereof, as recorded in Plat Book 1, Page 158, of the Public Records of Manatee County, Florida lying Westerly of and adjacent to Lots 3, 4, 9, and 10, Block 19, and the 40 foot strip of right-of-way lying between Lots 4 and 9, Block 19, as depicted on said Plat. TOGETHER WITH: All of that portion of the platted right-of-way of South Street (now known as 8 th Avenue West) as depicted on BLACK BEAR PARK, according to the plat thereof, as recorded in Plat Book 1, Page 283, of the Public Records of Manatee County, Florida, lying Northerly of and adjacent to Lots 6, 7, 8, 9, 10, 11, 12 and 13, Block A, of said BLACK BEAR PARK, bounded on the West by the West right-of-way of 3 rd Street West, and bounded on the East by the Southerly extension of the East boundary of Lot 12, Block 19, as depicted on said Plat of MAP OF ADAMS ANEX TO BRAIDENTOWN. Page 11 of 12

12 TOGETHER WITH: All of that portion of the public right-of-way of 6 th Avenue West (State Road #64), according to the Florida Department of Transportation Right-of-way Map Section # , including a portion of and lying Northerly of Lots 1, 2, and 3, Block 19, and lying Westerly of Lot 3, Block 19, as depicted on the Plat of MAP OF ADAMS ANEX TO BRAIDENTOWN, according to the plat thereof, as recorded in Plat Book 1, Page 158, of the Public Records of Manatee County, Florida, bounded on the West by the Northerly extension of the West right-of-way of 3 rd Street West. Page 12 of 12