LETTER - DIMMITT CHEVROLET PROPERTY B BROWNFIELD SITE 529701002 - DECLARATION OF RESTRICTIVE COVENANT
Department of
Environmental Protection
Jeb Bush
Governor
Southwest District
13051 North Telecom Parkway
Temple Terrace, FL 33637-0926
Telephone: 813-632-7600
Colleen M. Castille
Secretary
August 29, 2006
~'tj~IVed
5EP 0 6 2D06
William L. Pence
William L. Pence
Akerman Senterfitt
420 South. Orange Avenue, Suite 1200
Orlando, FL 32801
RE: Dimmitt Chevrolet Property B Brownfield Site
901-927 Cleveland Street
Clearwater, Florida 33756
Brownfield Site ID # 529701002
Dear Mr. Pence:
I am writing in response to your letter of September 27, 2005, which reque~:ted a letter
from the Department confirming that the City of Clearwater (the City) has completed the
rehabilitation of contaminated soils at the site identified above (the Site), and will address the
Site's remaining groundwater contamination through an approved plan for natural attenuation
with monitoring, as outlined below. As explained in more detail below, and subject to the
reservation set forth there, this letter constitutes the confirmation that you have requested.
1. The City entered into a Brownfield Site Rehabilitation Agreement (BSRA) in
2001 for the Site. Based on the data in the Department's file, the City has sufficiently completed
the removal of contaminated soil at the Site in accordance with the Site's Remediation Action
Plan (RAP) identified in Attachment B of the BSRA, and outlined in section 62-785.700 Florida
Administrative Code (F.A.C.). However, as you know, final approval of all cleanup activities for
soil and water are ultimately reserved until the City submits a Site Rehabilitation Completion
Repurt pilisiiani tv ;';uosecti()r~ 62-785.690(10), F.A.C., demonstrating that site cleanup objectives
have in fact been achieved for all contaminated media at the Site.
2. Because contaminated groundwater continues to impact the Site, the City has not
yet met all the requirements for the Site to be eligible for a No Further Action (NF A) proposal or
Site Rehabilitation Completion Order (SRCO). The City must continue monitoring of the
groundwater in accordance with the Revised Monitoring Only Plan (MOP), approved on June
25, 2004, and the requirements of the BSRA and chapter 62-785, F .A.C. The Department and
the City do not agree on the source or sources for all of the contaminated groundwater that
underlies the Site. However, the purpose of the revised MOP is to monitor and to verify whether
the attenuation of all the groundwater contaminates at the Site occurs to levels below the
groundwater cleanup target levels (GCTLs) within five years of the plan approval.
"More Protection, Less Process"
{OR984996;1}
Printed on recycled paper,
3. The City has proposed (as part of its revised MOP, at page 7) a restrictive
covenant to prevent the use of groundwater at the Site, to substantially reduce the risk of any
exposure of workers, residents, or others to contaminated groundwater. The Department has
approved the City's proposed restrictive covenant for groundwater as an appropriate institutional
control at the Site that will adequately protect human health. A true copy of the approved
restrictive covenant attached to this letter as Exhibit A. The only other requirements that the
City must meet with respect to the restrictive covenant is to record it in the form approved by the
Department.
4. Accordingly, so long as the City complies with all the requirements of its revised
MOP and the groundwater contamination at the Site continues its natural attenuation, the
Department will deem the City to be in compliance with the plan and not to be subject to any
additional requirements for assessment or remediation of the contaminated groundwater at the
Site that has been delineated to date. Specifically, the City must reinstall the monitoring wells
within sixty days after completion of the residential construction on the Site or not more than two
years from now, whichever is sooner, comply with the sampling and reporting requirements of
the plan, and show (through the reported analytical results) that the groundwater contamination is
naturally attenuating to GCTLs within the five years following commencement of the revised
MOP. If groundwater sample constituents exceed their Natural Attenuation Default
Concentrations (NADCs), or annual evaluation of analytical data suggests that constituents will
not naturally attenuate to GCTLs within the five years, then the City must submit a monitoring
report signed and sealed by an appropriate registered professional that includes a proposal to
perform a supplemental site assessment to determine the cause of continued elevated GCTLs,
continue the MOP (if shown to be appropriate), or prepare and submit a Remedial Action Plan as
provided for under rule 62-785.690(8)(e). At that time, the City will have the opportunity to
demonstrate whether the groundwater underlying the Site results solely from an off-site source,
or from both on-site and off-site sources.
5. The City's eligibility for submitting an NFA proposal and obtaining an SRCO
depends on the results of the monitoring under the plan. The City will be eligible to submit such
a proposal once the criteria of section 62-785.690, F.A.C., for natural attenuation with
monitoring are met, including a minimum of four quarterly sampling events of which at least the
last two produce results from all five monitoring wells showing that the NF A criteria of section
62-785.680, F.A.C., have been met. In the meantime, the City must continue to meet all
requirements ofthe revised MOP.
In sum, this letter confirms that the City has sufficiently completed the removal of
contaminated soils at the Site in accordance with the Site's RAP and section 62-785.700, F.A.C.
The City remains subject to the requirements of its approved revised MOP with respect to
groundwater contamination. Under the revised MOP, if the levels of groundwater contamination
attenuate down to GCTLs within five years (as expected), then the City will be eligible to submit
an NF A proposal and obtain an SRCO, completing the remediation at the Site. If the levels of
contamination have not attenuated down to GCTLs within five years, then the City will have to
show the appropriateness of continuing the revised MOP for another five years, conduct
additional assessment to determine the cause of continued elevated GCTL, or perform remedial
action in accordance with Chapter 62-785, F.A.C.
{OR984996;1}
This letter should not be construed as final agency action with respect to the soils
contamination or groundwater issues at the Site. Final review and approval cannot occur until
the City submits a Site Rehabilitation Completion Report pursuant to subsection 62-785.690(10),
F.A.C., signed and sealed by the appropriate technical professionals, that demonstrates that site
cleanup objectives have in fact been achieved for all contaminated media at the Site in
accordance with chapter 62-785, F.A.C.
If you have any questions about this letter, please contact John Sego at 813-632-7600.
Sincerely,
~.
~'Farlex nterim Distn
Southwes District
JM/j s
Encl: Exhibit A: RC
cc: John Sego, FDEP - WCD, SWD
Kim Walker, FDEP - Brownfields, TAL
File
{OR984996;1}
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
~S/=E2006290363 08/04/2006 at 09:15 AM
C BK: 15284 PG: 1541-1548
DocType:RST RECORDING: $69.50
DECLARATION OF RESTRICTIVE COVENANT
THIS DECLARATION OF RESTRICTNE COVENANT (Declaration) is made this
J~ day of A.c.....~, 2006, by the Community Redevelopment Agency of the City of
Clemwater, Flori , a public body corporate and polItic of the State of Flonda created under
chapter 163 of the Florida Statutes (the CRA), and the Florida Department ofEllvironmental
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 ofthis 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 of the state brownfields prograIn
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 PrlOperty, which is a
brownfield site. The Brownfield Site Identification Number for the Property is .529701002, and
the BSRA naInes 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 eMS, 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 fumitare sales. The
site rehabilitation required by the BSRA included assessment activities that identified the
presence of contaIninated soil and groundwater on the Property, although the City has not been
able to establish the dates of discharge ofthe contaminants in question. Various groundwater
samples taken from 1999 through 2002 from several monitoring vv~~~~)I~w1
correct copy ~i' the original 1IlI it appearl
in the files of the Ci!}' of Clearwaree,
Page 1 of 8 Witness my hand and ofticlaI _ f1l
the~OfC~~
~ ~"Yof - ~~Vrf lJ~rtI/Jp
Depw, Citf m f Il
concentrations 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 tbe 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 (February2002);
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 ReviserdMonitoring 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 ofthe
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 ofthe 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 62-785.7 50(4)( e) of the Florida Administrative Code.
F. It is the intent of the restrictions nn 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.
Page 20f8
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 ofthe 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 ofthe 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 ofthe 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 of the 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 of the 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 eRA, 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 ofthe 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
'-
Rod Irwin, Assistant City Manager for Economic
Development/CRA Executive Director
Witness: .4......_CL--1 f+~~/",,-
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Print Name:S;;,~\\...O__\ \+.::...r-r. ~ ,iLl'
?5 WO'-P _
Witness: /i4~'-1;'2 ,'~~
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Print Name: --J V{~." 'L' : ' "(49/i;' " 6
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Date:
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Appr9ved asto form: "
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Assistant City Attorney
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Print Name: '::'::'i)SO,fl .' v\CtSe
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 ofthe City of
Page 5 of 8
Clearwater, Florida. They are personally known to me or have each produced a valid Florida driver's
license as identification.
(SEAL)
/~~f~{~{4'/, Karen B. Vaughan
: '(A" y~ Commission # D0500919
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Signature of Notary Public
Print or Type Name of Notary Public
Commission No.:
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Signed, sealed, and delivered in the presence of:
2006.
FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
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FDEP Southwest District Office
Address: 13051 N. Telecom Parkway
Temple Terrace, Florida 33637-0926
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Page 6 of8
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STATE OF FLORIDA
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The foregoing instrument was acknowledged before me this .:L!L day of- J (~ ./ll .
2006 by '-\~irn""g M h-url l" '-.J , as representative for the Florida Department of
Environmental Protection. Persob.ally Known V OR Produced Identification
Type of Identification Produced:
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Page 7 of8
EXHIBIT "A"
LEGAL DESCRIPTION
TRACT 2
BEGIN AT THE SOUTHEAST CORNER OF LOT 11, BLOCK 2, MAGNOLIA PARKAS
RECORDED IN PLAT BOOK 3 PAGE 43 OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA; THENCE S.00ol7'56"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.89057'12"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.89057'12"W. ALONG SAID RIGHT OF WAY OF PARK
STREET, A DISTANCE OE63.71 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.83053'00"W. A DISTANCE OF 188.67 FEET;
THENCE N.06007'00"E., A DISTANCE OF 3.23 FEET TO A POINT ON THE NORTH
RIGHT OF WAY LINE OF PARK STREET; THENCE S.89057'II"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.00ol7'56"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;00ol7'56"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.89057'12"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.00ol7'56"E. ALONG THE EAST LINE OF SAID LOT 8, A DISTANCE OF 1 02.50 FEET
TO THE SOUTHEAST CORNER OF SAID LOT 8; THENCE N.89057'12"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.00ol7'56"E. ALONG THE EAST LINE OF SAID LOT 11, A DISTANCE OF 132.50 TO
THE POINT OF BEGINNING.
AREA OF TRACT: 120,739.82i: SQ. FT. = 2.772i: ACRES.
Page 8 of8
MEMORANDUM
FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
TO: John Sego, P.G., Brownfields Coordinator, Southwest District
THROUGH: Nell Tyner, P.G.II, Waste Cleanup Program Manager, Southwest District
Lisa M. Duchene, Assistant General Counsel, aGC ~W\b
FROM:
DATE: June 16,2006
SUBJECT: Restrictive Covenant for Dimmitt Property Brownfield Site (BF529701002)
I have reviewed the attached interim restrictive covenant for the above referenced site. It
appears to meet all of the legal requirements for such an institutional control. Therefore, I
recommend that the district director or his/her designee si2n the covenant in the presence of a
notary public and two witnesses.
Once executed by the Department, please provide the ori2inal document to the property
owner or its representative for execution and recording. Please ensure that OGC and the project
manager receive a copy of the final executed and recorded document.
After evidence of recording of the restrictive covenant and evidence of local government
notice [follow subsection 62-785.680(8), F.A.C., for format] is presented to the project manager,
the "Comfort Letter" for this site that was negotiated and agreed upon by the parties may be
issued (final draft by Jack Chisolm dated 2-17-06). At that time the project manager can
complete the database form for the Institutional Control Registry (ICR) and submit that form to
the Division of Waste Management Director's Office. Once OGC confirms that this restrictive
covenant has been logged into the ICR, we will forward our file to the district for scanning.
Please contact me at lisa.duchene(cV,dep.state.f1.us or suncom 205-2280 if you have any
questions regarding this restrictive covenant.