DECLARATION OF RESTRICTIVE COVENANT
This instrument prepared by:
Timothy A. Smith, Esq.
Akerman Senterfitt
17th Floor
255 South Orange Avenue
Orlando, Florida 32801
KEN BURKE, CLERK OF COURT
PINELLAS COUNTY FLORIDA
~FT=E~OB6K2~015326843 08p10412006 at 09:15 AM
. G: 1541-1548
DocType:RST RECORDING: $69.50
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DECLARATION OF RESTRICTIVE COVENANT
THIS DECLARATION OF RESTRICTIVE COVENANT (Declaration) is made this
J~ day of ~~, 2006, by the Community Redevelopment Agency of the City of
Clearwater, Flori , a pubhc body corporate and pohtic of the State of Flonda created under
chapter 163 of the Florida Statutes (the CRA), and the Florida Department of Environmental
Protection (FDEP).
RECITALS
A. The CRA is the fee simple owner of that certain real property (the Property)
situated in Pinellas County, Florida, more particularly described in Exhibit A attached to and
made a part of this Declaration, the former site of Dimmitt Chevrolet.
B. The Property is subject to a Brownfield Site Rehabilitation Agreement (BSRA),
into which the City of Clearwater, Florida (the City) entered with FDEP on July 26,2001. In
signing the BSRA in order to qualify for the various incentives ofthe state brownfields program
for voluntary site rehabilitation and redevelopment, the City agreed to be the "person responsible
for brownfield site rehabilitation" as defined in section 376.79(13) of the Florida Statutes and
agreed to conduct "site rehabilitation" as defined in section 376.79(17) at the Property, which is a
brownfield site. The Brownfield Site Identification Number for the Property is 529701002, and
the BSRA names the Property as the "Dimmitt Chevrolet Property B" Brownfield Site.
C. The Property was formerly owned by Dimmitt Chevrolet, whose operations
included new car showrooms, offices, service centers, sales of trucks and used cars, car washing,
and automotive body repair. The City purchased the site for rehabilitation and redevelopment,
and later transferred ownership to the CRA; however, the City retained responsibility for site
rehabilitation under the BSRA. At the time that the City purchased the Property, buildings on the
Property were either vacant or leased to various businesses that provided services including sales
of used automobiles, car rentals, automotive maintenance and repair, and furniture sales. The
site rehabilitation required by the BSRA included assessment activities that identified the
presence of contaminated soil and groundwater on the Property, although the City has not been
able to establish the dates of discharge of the contaminants in question. Various groundwater
samples taken from 1999 through 2002 from several monitoring wells on the Property contained
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concentratiOIis oftetrachloroethene, trichloroethene, vinyl chloride, and benzene that exceeded
groundwater cleanup target levels. In addition, soil samples contained concentrations of arsenic
and benzo-a-pyrene exceeding cleanup target levels. However, the City's process of site
rehabilitation at this site included several interim source removals of contaminated soil, with
follow-up sampling and assessment until all soil contaminated above the applicable cleanup
target levels was removed from the Property. The City has documented these site rehabilitation
activities in the following reports, incorporated here by reference:
1. Site Assessment and Remedial Action Plan (April 2001);
2. Summary Report of Supplemental Soil Delineation Activities (August 2001);
3. Site Assessment Summary Letter Report (November 2001);
4. Interim Source Removal Report (February 2002);
5. Groundwater Monitoring Report (March 2002);
6. Supplemental Interim Source Removal Report (Sept. 2002);
7. Groundwater Monitoring Report (October 2002);
8. Combined Document (December 2002);
9. Responses to Comments on the Combined Document (May 2003);
10. Revised Monitoring Only Plan (March 2004);
11. City's responses to FDEP's comments on the revised monitoring only plan (May 3,
2004);
12. Results of Supplemental Soil Assessment (June 2004);
13. Soil Remediation/Site Rehabilitation Completion Report (October 2004); and
14. FDEP's Letter Approving Revised Monitoring Only Plan (June 25, 2004).
D. The documents noted in Recital C above set forth the nature and extent of the
contamination on the Property. These reports confirm that contaminated groundwater as defined
by chapter 62-785 of the Florida Administrative Code exists beneath a portion of the Property.
The reports also suggest that the contamination will be present in the groundwater below the site
for many more years, but is naturally attenuating. The Department has approved the City's
Revised Monitoring Only Plan (Plan) to monitor the expected natural attenuation of the
groundwater contamination.
E. One of the requirements of the approved Plan is the recording of this Declaration,
and FDEP can unilaterally revoke the Plan approval if the conditions of this Declaration or the
conditions of the Plan approval are not met. In addition, if concentrations of groundwater
contaminants increase above the action levels specified in the Plan approval or violate the natural
attenuation default concentrations of chapter 62-777 of the Florida Administrative Code, FDEP
may require supplemental assessment, additional monitoring, or active remediation of the
contamination, as specified in rule 62-785.750(4)(e) ofthe Florida Administrative Code.
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.
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G. The FDEP will not issue a Site Rehabilitation Completion Order with Conditions
upon recordation of this Declaration because contaminated groundwater remains at the site at
levels above applicable cleanup target levels. Rehabilitation of the groundwater is ongoing. If
cleanup target levels are later met, then the CRA and the FDEP, or their successors or assigns,
may agree in writing to amend or remove this Declaration.
H. The CRA deems it desirable and in the best interest of all present and future
owners of the Property that until a Site Rehabilitation Completion Order is obtained the Property
be held subject to certain restrictions, as more particularly set forth below.
NOW, THEREFORE, to be protective of human health and for other good and valuable
consideration, the receipt and sufficiency of which the undersigned parties each here
acknowledge, the CRA agrees as follows:
1. The foregoing recitals are true and correct and are incorporated here by reference.
2. By this Declaration, the CRA imposes on the Property the following restrictions:
There shall be no use of the groundwater on the Property. No drilling for water
shall be conducted anywhere on the Property, and no wells shall be installed on
the Property other than monitoring wells pre-approved by FDEP. There shall be
no use of the groundwater on the Property for drinking, bathing, swimming,
irrigation, or any other purpose. Moreover, there shall be no stormwater swales,
stormwater detention or retention facilities, ditches, or other structures or
equipment affecting surface or groundwater on the Property u,nless the owner first
provides to FDEP reasonable assurance, and FDEP agrees in writing, that such
structures or equipment will not result in any adverse impact on public health,
whether from changes in the rate or direction of contaminant movement, or from
increased levels of risk from changes in exposure pathways. 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.
3. For the purpose of monitoring the restrictions set forth above, FDEP or its
successors or assigns shall have site access to the Property at reasonable times and
with reasonable notice to the CRA, or its successors or assigns.
4. It is the CRA's intention that the restrictions 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
successors and assigns of the CRA, and to FDEP, its successors and assigns, and
to any and all parties hereafter having any right, title, or interest in the Property or
any part of it. The FDEP and its successors and assigns may enforce the terms
and conditions of this Declaration by injunctive relief and other appropriate
available legal remedies. Any forbearance on behalf ofthe FDEP to exercise its
Page 3 of8
right in the event of the failure of the CRA, or its successors or assigns, to comply
with the provisions of this Declaration shall not be deemed or construed to be a
waiver ofthe FDEP's rights hereunder. This Declaration shall continue in
perpetuity, unless otherwise modified in writing by the CRA and FDEP, or their
respective successors and assigns, as provided in paragraph 6 below. 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.
5. In order to ensure the perpetual nature of these restrictions, the CRA, and its
successors and assigns, shall reference these restrictions in any subsequent deed of
conveyance, including the recording book and page of record of this Declaration.
6. This Declaration is binding until a release of covenant is executed by the
Secretary ofFDEP (or the Secretary's designee) and the authorized representatives
of the CRA, or their respective successors and assigns, and is recorded in the
county land records. FDEP will not approve the release of any requirement of
these restrictions unless the applicable cleanup target level or levels established
under the Florida Statutes and FDEP rules have been achieved. This Declaration
may be modified in writing only. Any subsequent amendment must be executed
by the CRA and FDEP, or their respective successors and assigns, and be recorded
by the CRA, or its successors and assigns, as an amendment to the Declaration.
7. 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.
8. The CRA covenants and represents that on the date of execution of this
Declaration, the CRA 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.
The CRA also covenants and warrants that the Property is free and clear of any
and all liens, mortgages, or encumbrances that could impair the CRA's right to
impose the restrictive covenant described in this Declaration or that would be
superior to the restrictive covenant described in this Declaration.
REMAINDER OF P AGE INTENTIONALLY LEFT BLANK.
Page 4 of8
IN WITNESS WHEREOF, the parties to this covenant have set their hands and their
respective seals affixed as of this ~day Of~2006.
Signed, sealed, and delivered in the presence of:
COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF CLE WATER, FLORIDA
Witness: ~ ~/'-.
,
Print Name: ~ H-..r-,:. 4-Lf'
\ iJ
Rod Irwin, Assistant City Manager for Economic
Development/CRA Executive Director
Date: ~ ~ a\.,P .
Witness: ~ (.;2 .~
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5 . '. -.\. (; i · 1J..h!1 "':
Print Name: v(~.., 'L':' ''l/.JI.i~f'- '1,6
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aura IPOWS 1
Assistant City Attorney
ATTEST:
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Date:
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Witnes~~~ ()~
Print Name: RDStMIHlIE CALI-
Witness:~ O~
Print Name: S'vso..n C haSt':
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me on this~day of ~2006
by ROD IRWIN, Assistant City Manager for Economic Development/CRA Executive Director, and
CYNTHIA E. GOUDEAU, City Clerk, for the Community Redevelopment Agency of the City of
Page 5 of8
Clearwater, Florida. They are personally known to me or have each produced a valid Florida driver's
license as identification.
,J\~1.!.~, Karen B. Vaughan
. { .J}. \~ Commission # 00500919
.j~;~~1 Expires December :~O, 2009
",}~,ii\\ Bonded TIOY Fain Insura"co 'n, 600.385.7019
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Signature of Notary Public
(SEAL)
Print or Type Name of Notary Public
Commission No.:
Commission Expires:
Counsel:
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TNESS WH OF, the Florida Department of Environmental Protection has executed
this instrument, this -.1f~ay of ~ 2006.
Signed, sealed, and delivered in the presence of:
FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
P . ame: ;r: J'V/. .-.
Title: ~ 1$f1'rnT "):>J r'L~C
FDEP Southwest District Office
Address: 13051 N. Telecom Parkway
Temple Terrace, Florida 33637-0926
Date: ? / I 'f / 0 (..
Witness:
ate:
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Print Name:
Page 6 of8
STATE OF FLORIDA
COUNTY OF 1/,I/rhlJ rouJ!t
The foregoing instrument was acknowledged before me this -1!L day of ~ . ( :J
2006 by '---timE'~ M br\ (0 ~ ' as representative for the Florida Department
Environmental Protection. Per nally Known V OR Produced Identification _.
Type ofldentification Produced:
''J1~ Fay M: D~mers
:-i ,.,' !_: Commission # DD256302
'R~: Expires November 6, 2O(fl
, H' IlondIId Troy FIIIn -1nu8nce, Inc. 8lJO.a86.7lltll
Page 7 of8
EXHIBIT "A"
LEGAL DESCRIPTION
TRACT 2
BEGIN AT THE SOUTHEAST CORNER OF LOT 11, BLOCK 2, MAGNOLIA PARK AS
RECORDED IN PLAT BOOK 3 PAGE 43 OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA; THENCE S.000IT56"E., A DISTANCE OF 8.16 FEET; THENCE
S.89042'04"W., A DISTANCE OF 21.42 FEET; THENCE S.00002'48"E., A DISTANCE OF
25.71 FEET; THENCE S.8905TI2"W., A DISTANCE OF 46.67 FEET; THENCE
S.00002'48"E., A DISTANCE OF 26.04 FEET TO THE SOUTH RIGHT OF WAY LINE OF
PARK STREET; THENCE S.8905TI2"W. ALONG SAID RIGHT OF WAY OF PARK
STREET, A DISTANCE OF 63.71 FEET; THENCE N. 23029'22"W., A DISTANCE OF 34.41
FEET; THENCE S. 66030'38"W., A DISTANCE OF 14.94 FEET; THENCE N.23029'22"W., A
DISTANCE OF 11.89 FEET; THENCE N.83053'OO"W. A DISTANCE OF 188.67 FEET;
THENCE N.0600TOO"E., A DISTANCE OF 3.23 FEET TO A POINT ON THE NORTH
RIGHT OF WAY LINE OF PARK STREET; THENCE S.89057'11 "W. ALONG SAID RIGHT
OF WAY OF PARK STREET, A DISTANCE OF 5.08 FEET; THENCE S.81018'37"W. A
DISTANCE OF 157.33 FEET, THENCE N.08041'23"W., A DISTANCE OF 46.67 FEET;
THENCE N.81018'37"E. A DISTANCE OF 8.85 FEET TO THE EAST RIGHT OF WAY
LINE OF PROSPECT AVENUE; THENCE N.00oIT56"W. ALONG SAID RIGHT OF WAY
OF PROSPECT AVENUE, A DISTANCE OF 20.22 FEET; THENCE S.81018'37"W., A
DISTANCE OF 1.05 FEET; THENCE N.08041'23"W., A DISTANCE OF 46.67 FEET;
THENCE N.81018'37"E., A DISTANCE OF 7.93 FEET TO THE EAST RIGHT OF WAY
LINE OF PROSPECT AVENUE; THENCE N.00oIT56"W. ALONG SAID RIGHT OF WAY
OF PROSPECT AVENUE, A DISTANCE OF 143.79 FEET TO THE SOUTH RIGHT OF
WAY LINE OF CLEVELAND STREET; THENCE N.8905TI2"E. ALONG SAID SOUTH
RIGHT OF WAY OF CLEVELAND STREET A DISTANCE OF 408.00 FEET TO THE
NORTHEAST CORNER OF LOT 8, BLOCK 2 OF SAID MAGNOLIA PARK; THENCE
S.000IT56"E. ALONG THE EAST LINE OF SAID LOT 8, A DISTANCE OF 102.50 FEET
TO THE SOUTHEAST CORNER OF SAID LOT 8; THENCE N.8905TI2"E. ALONG THE
NORTH LINE OF LOTS 12 AND 11, BLOCK 2 OF SAID MAGNOLIGA PARK, A
DISTANCE OF 101.90 FEET TO THE NORTHEAST CORNER OF SAID LOT 11; THENCE
S.000IT56"E. ALONG THE EAST LINE OF SAID LOT 11, A DISTANCE OF 132.50 TO
THE POINT OF BEGINNING.
AREA OF TRACT: 120,739.82:i SQ. FT. = 2.772:i ACRES.
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