DECLARATION OF RESTRICTIVE COVENANT (2)This instrument prepared by:
Leslie K. Dougall -Sides
Assistant City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, FL 33758 -4748
KEN BURKE, CLERK OF COURT
AND COMPTROLLER PINELLAS COUNTY, FL
INST# 2013322076 10/02/2013 at 04:47 PM
OFF REC BK: 18181 PG: 1840 -1854
DocType:RST RECORDING: $129.00
DECLARATION OF RESTRICTIVE COVENANT
THIS DECLARATION OF RESTRICTIVE COVENANT (hereinafter
"Declaration ") is made this (F 4` day of S..t‘A , 20(? by the City of Clearwater,
(hereinafter GRANTOR), whose address is Post Office Box 4748, Clearwater, Florida
33758 -4748, 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
County of Pinellas, State of Florida, more particularly described in Exhibit A attached
hereto and made a part thereof (hereinafter the "Property ").
B. The FDEP Facility Identification Number for the Property is 529300776. The
facility name at the time of this Declaration is Solid Waste Fueling Site. This Declaration
addresses the discharge that was discovered on May 23, 2008.
C. The discharge of petroleum constituents on the Property is documented in the
following reports that are incorporated by reference:
Page 1 of 8
1. Soil Assessment Report (hereinafter the "Assessment Report") dated February,
2008, prepared by Universal Solutions, Inc.
2. Annual Summary Report of Natural Attenuation Monitoring (hereinafter the
"Groundwater Remediation Report") dated January, 2011, prepared by City of
Clearwater Engineering Staff.
D. The Assessment Report noted in Recital C sets forth the nature and lateral extent of
impacted soil on the Property. This Assessment Report confirms that soil contaminated
with petroleum products' chemicals of concern, as defined by Chapter 62 -777, Florida
Administrative Code remains beneath asphalt and concrete in the southern portion of the
tank farm. The area of impacted soil is delineated in Exhibit B, attached, will be addressed
by restriction.
E. Groundwater contamination identified in the Assessment Report was remediated
through natural attenuation monitoring of the site, which was documented Groundwater
Remediation Report noted in Recital C above.
F. It is the intent of the restrictions in this Declaration to reduce or eliminate the risk of
exposure of the contaminants to the environment and to users or occupants of the property
and to reduce or eliminate the threat of migration of the contaminants.
G. The FDEP has agreed to issue a Site Rehabilitation Completion Order with
Conditions (hereinafter "Order ") upon recordation of this Declaration. The FDEP can
unilaterally revoke the Order if the conditions of this Declaration or of the Order are not
met. Additionally, should concentrations of petroleum products' chemical of concern
increase above the levels approved in the Order, or if a subsequent discharge occurs at the
site, the FDEP may require site rehabilitation to reduce concentrations of contamination to
the levels allowed by the appropriate FDEP rules. The Order relating to FDEP Facility No.
529300776 can be found by contacting the appropriate FDEP District Office or bureau..
H. GRANTOR deems it desirable and in the best interest of all present and future
owners of the Property that an Order obtained for the Property be held subject to certain
restrictions and changes, all of which are more particularly hereinafter set forth.
NOW, THEREFORE, to induce the FDEP to issue the Order and for other good and
Page 2 of 8
valuable consideration, the receipt and sufficiency of which is 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 on the Property the following restrictions:
a. That portion of the Property called the "Area of Soil Contamination"
and shown on Exhibit B shall remain permanently covered and
maintained with an impermeable material that prevents human
exposure and limits water infiltration. An Engineering Control
Maintenance Plan shall be maintained that includes the frequency of
inspections and monitoring and the criteria for determining when the
engineer control has failed. The Engineering Control Maintenance
Plan is attached as Exhibit C (hereinafter referred to as the
"Engineering Control ").
b. Excavation and construction below the impermeable material is not
prohibited within the Area of Soil Contamination provided any soils
contaminated with petroleum products' chemicals of concern that are
excavated are removed and properly disposed of pursuant to Chapter
62 -770 F.A.C. (or subsequent contamination site cleanup criteria
rule(s)). Nothing herein shall limit or conflict with any other legal
requirements regarding construction methods and techniques that
must be taken to minimize risk of exposure while conducting work in
contaminated areas. For any dewatering activities, a plan must be in
place to address and ensure the appropriate handling, treatment, and
disposal of any extracted groundwater that may be contaminated.
Nothing in this Declaration shall prevent, limit or restrict any
excavation or construction at or below the surface outside the
boundary of contaminated soils as described in Exhibit B.
3. In the remaining paragraphs all references to "GRANTOR" and "FDEP" shall
also mean and refer to their respective successors and assigns.
Page 3 of 8
4. For the purpose of monitoring the restrictions contained herein, FDEP shall have
site access to the Property at reasonable times and with reasonable notice to the
GRANTOR.
5. It is the intention of GRANTOR that the restriction contained in 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 the
GRANTOR, and to FDEP and to any and all parties hereafter having any right,
title or interest in the Property or any part thereof. The FDEP may enforce the
terms and conditions of this Declaration by injunctive relief and other
appropriate available legal remedies. Any forbearance on behalf of the FDEP to
exercise its right in the event of the failure of the GRANTOR to comply with the
provisions of this Declaration shall not be deemed or construed to be a waiver of
the FDEP's rights hereunder. This Declaration shall continue in perpetuity,
unless otherwise modified in writing by GRANTOR and the 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 this restriction. If the GRANTOR does
not or will not be able to comply with any or all of the provisions of this
Declaration, the 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, 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 these restrictions, 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 landlord -tenant relationship with respect to
the Property, the 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 the FDEP
Secretary (or designee) and GRANTOR and is recorded in the county land
records. To receive prior approval from FDEP to remove any requirement
Page 4 of 8
herein, cleanup target levels established pursuant to Florida Statutes and FDEP
rules must have been achieved. This Declaration may be modified in writing
only. Any subsequent amendment must be executed by both GRANTOR and the
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 such provision shall not affect the
validity of any other provisions thereof. 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. GRANTOR also covenants and warrants that the Property is free and
clear of any and all liens, mortgages, or encumbrances that could impair
GRANTOR'S rights to impose the restrictive covenant described in this
Declaration or that would be superior to the restrictive covenant described in this
Declaration.
10. If the GRANTOR does not or will not be able to comply with any or all of the
provisions of this Declaration, the 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, successors, assigns or grantees,
including, without limitation, the conveyance of any security interest in said
Property.
Page 5 of 8
IN WITNESS WHEREOF, the City of Clearwater has executed this instrument, this
'Cday of u. , 2011.
203
Signed, sealed and delivered in the presence of:
Countersigned:
—seat cAac%kos
George N. Cretekos
Mayor
Approved as to form:
Leslie K. Dougal ' s
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this 1641j1" day of
, 20�, by s� S -J City Manager of the City of
Clearwater who is personally known to me.
By:
Attest:
CITY OF CLEARWATER, FLORIDA
11111‘cu.P 4 hi.I iv Gxi �G''�� fi)re
William B. Horne II
City Manager
Rosemarie Call
City Clerk
Notary Public
1
Page 6 of 8
SANDRA HARRIGER
NOTARY PUBLIC
STATE OF FLORIDA
Comm# EE142238
Eft ww3 1#14916
Approved as to form b the Flori artment of Environmental Protection. Office of
.94;7/3
General Counsel.
IN WITNESS WHEREOF, the Florida Department of Environmental Protection has
executed this instrument, this 1$ day of S E,rnbe r-- 2013.
Signed, sealed and delivered in the presence of:
FLO ' 1 i EPART I ENT OF
A ROTEEN - 1' • • ENTAL ��
CT . ,..)..._,
A 1 K. '
uegel
Program Administrator
Petroleum Restoration Program
Division of Waste Management
2600 Blairstone Road, Mail Station 4575
Tallahassee, FL 32399 -2400
Witness:
Print Name:
Witness:
Print Name:
STATE OF Flo t-ti 60.
COUNTY OF t_e.or )
Date: 0900/goi 3
Date: , etir /4'; 2.4)/ 3
The fore oing instrument was acknowledged before me this 1 day of t }twbr
e
2013. by Vo �er% e_ ‘kue..y.1 as representative for the Florida
Department of Environmental Protection.
Personally Known 17-- OR Produced Identification
Type of Identification Produced
wy� ;'t . /
=Y� CHERYL STAFFORD Signaturd►of Not, 'ublic
* MY COMMISSION # EE 217783
* EXPIRES: July 18, 2016
+40, ��� Banded Piro Budget tbwy Wines Page 7 of 8
Print Name of Notary Public
Commission No. F 'E ( 77 6
Commission Expires: 1, i v , z
Page 8 of 8
Not to Scale
This is not a survey
S8921'00
00 00'
Saq'2 '00"E
225 00'
Phint of Conl loncolovnt.
Sfit0ftWOM. Corner el I
Solalu.axL t Coroe.r or
Soo:ion 1, TOwngitip S, Range 15
SW21.12E
20 ou
l'01111. of Fi4hinning
EXHIBIT "A"
Itadio.n 018051
Arc 1 kogth • 70(0
Chord Lon Oh • 70.12'
Chord B•nri rig N(045 1)1)
S81)"21117"E
411 19'
1'ity ,,f(lcarwater Solid Waste
and Fueling Sin:
h h
NORTH
221.49'
Ne9921 1' W
408 06
CITY OF CLEARWATER, FLORIDA
ENGINEERING DEPARTMENT
BMW
L Cheek j
CACCI=
7/11/2013
CITY OF CLEARWATER SOLID
WASTE AND FUELING SITE
BOUNDARY LEGAL DESCRIPTION
CIF BAK
WI-2013-09
sew
1 OF 2
YBST-tVta
01-20S-15E
Not to Scale
This is not a survey
LEGAL AND SKETCH
Legal Description:
EXHIBIT "A"
dill 11111b
NORTH
Commencing at Southwest Corner oldie Southeast of Section 1, Township 29 South, Range 15 East, Pinellas County, FL,
run S89°21'17"E, a distance of50.00 feet to a Point of Beginning; thence NO0'16'30"W, a distance of 395.00 feet;
thence S89°21'00"E a distance of 225.00 feet; thence N00"16'30"W, a distance of 100.00 feet; thence S89'21'00"E,
a distance of 90.00 feet, thence S00'16'30"E, a distance of 400.00 feet; thence S89°21'17"E, a distance of 411.19 feet;
thence along a curve to the left a distance of 70.4g feet with a radius of 488.65 feet, a chord bearing of N06'45'10"E
and a chord distance of 70.42 feet; thence S89"21'17"E, a distance of 521.49 feet; thence S00'09'32"E, a distance of
165.00 feet; thence N8921'17"W, a distance of 468.06; thence S17'09'16" W, a distance of 415.94 feet; thence
N725044" W, a distance of 352.97 feet; thence N72°5415" W, a distance of 344.24 feet; thence N00"18'44"E,
a distance of 201.04 feet to the Point of Beginning, containing 11.10 acres, more or less.
87
Cheek
CIWD
C. Lono
DATE
7/11/2013
CITY OF CLEARWATER, FLORIDA
ENGINEERING DEPARTMENT
ern, or CLEARWATER SOLID 10.4
20I3-09
WASTE AND FUELING SITE !MT
BOUNDARY LECAL. DESCRIPTION 2 OF 2
01-29S-15E.
at I
NORTH
City of
Clear'rD a ter
Solid wt ste
Complex
Fuel Site
NO0 "00'00 "1 .
16.00' cw^
EXHIBIT "B"
N90 "00'00 "E 40,00'
90°00'00 "W 30.00'
cc
Scale 1" = 20'
This is not a survey
Point ol`C'omme seenen;
LEGENI?
Point /of I3eginnin,
N9O" 00'00" W
26.50'
S00 '00'00 "E
12.50'
Area of Soil Contamination
LEGAL. AND SKI'TC11
Legal Description;
Commencing at a point 501.00 feet West of the 51'
corner of the S W it of the SI; :ii of Section 1,
Township 29 South, Range 15 East tend along the
South boundary of said Section I, run
S 16 '45'50 "W, a distance of 65.84 feet; thence
N90' "°00'00" W, a distance of 26.50 feet to a Point
of Beginning; thence S00 "00'00 "1, a distance of
12.50 feet; thence S57 "48'01' W a distance of
35.50 feet; thence N90"00'00"W, a distance of
30.00 feet; thence N00 °00'00 "E, a distance of 16,00
feet; thence N52 "25'39 "E., a distance of 25,28 feet;
thence N90 °00'00 "F:, a distance of40.00 feet to a
Point of Beginning.
CITY OF CLEARWATER, FLORIDA
ENGINEERING DEPARTMENT
CITY OF CLEARWATER SOLID WASTE FUEL SITE
1701 N HERCULES AVENUE
CLEARWATER, FLORIDA 33765
FDEP FACILITY ID NO. 9300776
CPA 05/O7/2O13
ORO= $Y
APPROVED Br:
41_2011-11 rev
SUPERVISING .ENGINEER
ENGINEERING DE,IARTM.G"`rI.
October 10, 2011
Exhibit C
CI'T'Y OF CLEARWATER
PosT OFFICE Box 4748, CLGASwArE.a, FI.oRIDA 33758-4748
MCNICIIRL SERVICES &,11.nvNG,100 Soirni MvaTtEANmE,SurrE 220, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562 -4750 FAx (727) 562 -4755
Pinellas County Health Department
Petroleum Cleanup Section
4175 East Bay Drive, Suite 300
Clearwater, Florida 33764
Attention: Mr. Andrew Moore, P.G.
Su bject: Inspection, Monitoring and Maintenance Program
Solid Waste Fuel Site
1701 North Hercules Avenue
Clearwater, Florida
Facility ID No. 9300776
Mr. Moore:
As discussed with staff from your office, the City of Clearwater intends to utilize engineering
and institutional controls in obtaining a "No Further Action with Conditions" status for the City
of Clearwater Solid Waste Fueling Site.
We have received and reviewed the Florida Department of Environmental Protection (FDEP)
Institutional Controls Procedures Guidance (November 2010). After reviewing the document,
we understand that a requirement of a "No Further Action with Conditions" agreement will be
the initiation of an inspection, monitoring, and maintenance program for the engineering
controls at the site.
Introduction
As reported in documents submitted for this site, assessment activities were initiated in
response to product encountered during the August 2007 replacement of spill containment
buckets of the site's underground fuel storage system. During the replacement activities, the
original spill containment buckets were found to be compromised and appeared to have
impacted soil and groundwater at the site.
'Ewa EMrn.ovw''r ANDAFFIRMATIVE Ac Kok EMrionn'
Inspection, Monitoring and Maintenance Program
Solid Waste Fueling Site
Page 2
The results of the site assessment activities revealed elevated concentrations of petroleum
related contaminants in the soil at the site. The impacted soil was delineated and is comprised
of a roughly oval- shaped area, approximately 55 feet east to west and 30 feet north to south.
The area of impacted soil is lies completely beneath the asphalt pavement and concrete
installed as the surface features of the site's UST tank farm. Soil contamination was also
identified between the USTs.
The assessment activities also revealed exceedences of petroleum related contaminants in the
groundwater at the site. These exceedences were remediated using natural attenuation and
were monitored through the execution of a natural attenuation monitoring plan for the site.
The remaining concerns at the site are related to petroleum impacted soil. Because the soil lies
completely beneath the asphalt pavement and concrete surface features of the site the City has
proposed to utilize engineering and institutional controls in obtaining a "No Further Action with
Conditions" status for the site. In order to demonstrate the continued competence of the
asphalt and concrete covered areas, a proposed Inspection, Monitoring, and Maintenance
Program has been prepared and is outlined below.
It is the intent of this inspection, monitoring, and maintenance program to ensure that the
engineering control remains covered and maintained with an impermeable material that
prevents human exposure and limits water infiltration to the impact soils at the site.
Inspection, Monitoring, and Maintenance Program
Since the site is an FOEP registered tank site, the tank system is inspected regularly as part of
the required monthly visual inspections by staff from the City's Environmental and Fleet
divisions. Part of this inspection includes a general conditions inspection of the tank farm, the
area that includes the proposed engineering control. The inspectors have already been trained
and instructed to notify the City's general services division if this area appears compromised.
The portion of the property that will be addressed by the restrictive covenant of the site will
also be specifically inspected biannually (twice per year) for competence and integrity of the
engineering controls. A Monitoring and Maintenance Program Inspection Report with a
comments section and an inspector's signature line will be added to the site's existing tank
system records book. Instructions on performing the inspection will be on the inspection
report. A site plan showing the area of the engineering control will be referenced and enclosed
as part of the inspection report.
If the engineering control is found to be compromised, the deficiency will be noted on the
inspection sheet and Environmental and General Services staff will be notified. Any deficiencies
will be remedied within 30 days of the failed inspection date. Once repaired, a follow -up
Inspection, Monitoring and Maintenance Program
Solid Waste Fueling Site
Page 3
inspection will be performed and the inspection sheet will be completed accordingly. If the
deficiency has caused a release or failure of the engineering controls, FDEP and the Pinellas
County Health Department will be notified.
if there are any questions or comments, or if you wish to discuss this program further, please
feel free to contact City of Clearwater Environmental Division at (727) 5624745.
Sincerely,
Jose DeCicco
Environmental Specialist
Inspection Report for Monitoring and Maintenance Program
Solid Waste Fueling Site
- Inspection To Be Performed Twice Annually-
inspection Result
Acceptable
Requires
Attention
Inspection Date: Inspected By:
_fomments:
2
inspection Date: Inspected By:
'Comments:
3
Inspection Date: Inspected By:
(Comments:
Inspection Date: Inspected By:
L :mments:
5
inspection Date: Inspected By:
Comments:
6
Inspection Date: Inspected By:
Comments:
Instructions: Inspect the area of the tank farm outlined on the attached Exhibit "A ". The
identified area is required to have an impermeable cap that prevents exposure to and limits
water infiltration to the sod below. In the event that a deficiency of the asphalt and concrete
surfacing is found, document it on this report and then immediately notify the City
Environmental Department at the numbers provided below.
A copy of this Inspection Report must be kept on file in the inspection book
and must be made available to Regulatory Agencies upon request.
REPORT ANY DEFICIENCIES TO THE CITY ENVIRONMENTAL DEPARTMENT IMMEDIATELY.
ENVIRONMENTAL 562- 4745 562 -4759 or 224 -6763 f FIRE - 911