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HomeMy WebLinkAboutResolutions - 2013.04.17 - 20783MISCELLANEOUS RESOLUTION #13086 April 17, 2013 BY: PLANNING AND BUILDING COMMITTEE, JIM RUNESTAD, CHAIRPERSON IN RE: PARKS AND RECREATION COMMISSION — REQUEST FOR SPRINGFIELD OAKS LEAKING UNDERGROUND STORAGE TANKS (LUST) SITE — RESTRICTIVE COVENANT (DEED RESTRICTION) - SPRINGFIELD OAKS COUNTY PARK To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS, the County of Oakland owns property located along Andersonville Road in Springfield Township known as Springfield Oaks County Park; and WHEREAS, in 1992 a leak in an underground storage tank near the maintenance facility at the golf course was discovered; and WHEREAS, the Oakland County Parks and Recreation Commission has been working with the Michigan Department of Environmental Quality (MDEQ) to ensure the necessary site remediation is completed; and WHEREAS, on February 7, 2008, the Oakland County Board of Commissioners adopted Miscellaneous Resolution #08025 authorizing the Parks and Recreation Commission accept a $50,000 reimbursement to assist with the remediation and, in addition, adopted Miscellaneous Resolution #09041 on March 5 ; 2009 authorizing the Parks and Recreation Commission receive a $14,000 increase in reimbursement from the Michigan Department of Environmental Quality; and WHEREAS, the Oakland County Parks and Recreation Commission contracted with Technical Professional Services, Inc. for the partial remediation of the site, excluding a portion of the environmental plume located under the maintenance facility and which includes a well; and WHEREAS, the Oakland County Parks and Recreation Commission contracted with Soil & Materials Engineers, Inc. to complete the necessary remediation specifications, drawings, closure report and restrictive covenant (deed restriction); and WHEREAS, the Oakland County Parks and Recreation Commission received MDEQ approval of the restricted area of the covenant which is approximately 1.89 acres, including the well, which restricts any further installation of water wells within the described area; and WHEREAS, the Oakland County Parks and Recreation Commission hereby requests that the Oakland County Board of Commissioners authorizes and approves the attached Declaration of Restrictive Covenant (Deed Restriction) of approximately 1.89 acres at Springfield Oaks County Park with the Michigan Department of Environmental Quality. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners authorizes and approves the attached Declaration of Restrictive Covenant (Deed Restriction) of approximately 1.89 acres at Springfield Oaks County Park with the Michigan Department of Environmental Quality. BE IT FURTHER RESOLVED that the Oakland County Board of Commissioners directs its Chairperson or his designee to execute said Restrictive Covenant on behalf of the County of Oakland. Chairperson, on behalf of the Planning and Building Committee, I move the adoption of the foregoing resolution. PLANNING AND BUILDING COMMITTEE PLANNING & BUILDING COMMITTEE VOTE: Motion carried unanimously on a roll call vote. DECLARATION OF RESTRICTIVE COVENANT MDEQ Reference No. RC-RD-213-12-109 This Declaration of Restrictive Covenant (Restrictive Covenant) was recorded with the Oakland County Register of Deeds to protect public health, safety, welfare, and the environment by prohibiting or restricting activities that could result in unacceptable exposure to environmental contamination present at a specific portion of the property located in 12450 Andersonville Road, Davisburg, Michigan 48350, which is legally described in the attached Exhibit 1 (hereinafter "Property"). The survey and description of property which is attached as Exhibit 2, depicts and describes the area of the Property subject to the land and/or resource use restrictions specified in this Restrictive Covenant (hereinafter "Restricted Property"). The Restricted Property is associated with Springfield Oaks Golf Course for which a Closure Report (hereinafter "CR") was completed under Part 213, Leaking Underground Storage Tanks, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (hereinafter "NREPA"), MCL 324.21301 et seq. Corrective actions that were implemented to address environmental contamination are fully described in the CR dated . A copy of the CR is available from the Michigan Department of Environmental Quality (MDEQ) Remediation and Redevelopment Division District Office. Part 213 of NREPA requires the recording of this Restrictive Covenant with the Oakland County Register of Deeds based upon the corrective action activities for the site to: (1) restrict unacceptable exposures to regulated substances located on the Restricted Property; (2) assure that the use of the Restricted Property is consistent with the exposure assumptions used to develop cleanup criteria under Section 21304a(2) of the NREPA; (3) assure the exposure control measures relied upon in the CR are effective; and (4) to prevent damage or disturbance of any correction action on the Restricted Property. The restrictions contained in this Restrictive Covenant are based upon information available at the time the CR was implemented by the County of Oakland, by and through, the Oakland County Parks and Recreation Commission. Failure of the corrective action to achieve and maintain the cleanup criteria, exposure controls, and requirements specified in the CR; future changes in the environmental condition of the Restricted Property or changes in the cleanup criteria developed under Section 21304a(2) of the NREPA; the discovery of environmental conditions at the Restricted Property that were not accounted for in the CR; or use of the Restricted Property in a manner inconsistent with the restrictions described below may result in this Restrictive Covenant not being protective of public health, safety, welfare, and the environment. The adequacy of the corrective action undertaken pursuant to the CR may not have been reviewed by the MDEQ. Definitions For the purposes of this Restrictive Covenant, the following definitions shall apply: "MDEQ" means the Michigan Department of Environmental Quality, its successor entities, and those persons or entities acting on its behalf. "Owner" means at any given time the then-current title holder of all or any portion of the Restricted Property. "RBCA" means the American Society for Testing and Materials (ASTM) document entitled, "Standard Guide for Risk-Based Corrective Action Applied at Petroleum Release Sites," Designation E 1739-95. All other terms used in this document which are defined in Part 3, Definitions, of the NREPA; Part 213 of the NREPA; Part 201, Environmental Remediation, of the NREPA; or the Part 201 Administrative Rules (Part 201 Rules), 1990 AACS R299.5101 et seq., shall have the same meaning in this document as in Parts 3, 213, and 201, and the Part 201 Rules, as of the date this Restrictive Covenant is filed. Summary of Corrective Actions Hazardous substances including benzene, ethylbenzene, 2-methylnaphthalene, naphthalene, toluene, 1,2,3-trimethylbenzene, 1,2,4-trimethylbenzene, 1,3,5- trimethylbenzene, and xylenes were released from an underground storage tank resulting in contamination of the Restricted Property. Soil and groundwater contamination remains at levels that do not allow unrestricted residential use of the Restricted Property. Except as provided herein, public health will be protected by preventing the use of groundwater from the Restricted Property in an unconfined water bearing zone. An exposure barrier, consisting of the existing maintenance building, will be used to prevent dermal contact exposure to contaminated soil identified at VSR14- SW located beneath the west maintenance building foundation. Future subsurface and construction activities in the Restricted Property will require evaluation to determine if additional response action is necessary for planned activities. THEREFORE, 1. Declaration of Land and Resource Use Restrictions. In accordance with the CR, the County of Oakland, Owner of the Property, covenants that the Restricted Property is subject to the following restrictions: 2 a. Prohibited Activities to Eliminate Unacceptable Exposures to Regulated Substances. The Owner shall prohibit the construction or use of wells or other devices on the Restricted Property to extract groundwater for consumption, irrigation, or any other purpose, except as provided below: 1. The construction and use of wells or other devices to extract groundwater from an uncontaminated confined aquifer below the elevation of 950 feet above mean sea level is permitted provided the lower aquifer is separated from the shallow contaminated aquifer by a confining layer of clay with a minimum thickness of at least 150 feet. The wells shall be constructed in a manner that will prevent contamination from the shallow contaminated aquifer from migrating into the lower uncontaminated aquifer. Any well constructed in accordance with this subparagraph shall meet all state and local permitting and environmental health code standards. The groundwater from any well shall be tested and found to meet all applicable State of Michigan standards for human consumption prior to use. 2. Wells and other devices constructed as part of a response activity for the purpose of evaluating groundwater quality or to remediate subsurface contamination associated with a release of hazardous substances into the environment are permitted provided the construction of the wells or devices complies with all applicable local, state, and federal laws and regulations and does not cause or result in a new release, exacerbation of existing contamination, or any other violation of local, state, or federal laws or regulations. 3. Short-term dewatering for construction purposes is permitted provided the dewatering, including management and disposal of the groundwater, is conducted in accordance with all applicable local, state, and federal laws and regulations and does not cause or result in a new release, exacerbation of existing contamination, or any other violation of local, state, and federal environmental laws and regulations. b. Prohibited Activities to Ensure Effectiveness and Integrity of the Corrective Action. The Owner shall prohibit activities on the Restricted Property that may interfere with any element of the CR, including the performance of operation and maintenance activities, monitoring, or other measures necessary to ensure the effectiveness and integrity of the CR. The existing maintenance building on the Restricted Property serves to prevent exposure to contaminated soil. As a result, any building excavation, demolition, or other intrusive activity, including removal, altering, or disturbing the existing building and foundations, that could affect the integrity of the exposure barrier must be repaired or replaced with a similar engineering control/barrier providing at least the equivalent degree of protection as the original barrier within 14 days of completion of the work that required the intrusion. If future earthwork or building construction is planned in or on the Restricted Property, additional assessment, response activity, 3 and/or engineering controls shall be implemented to prevent human exposure via the dermal contact and inhalation pathways. c. Contaminated Soil Management. The Owner shall manage all soils, media, and/or debris located on the Restricted Property in accordance with the applicable requirements of Sections 21304b and 20120c of the NREPA; Part 111, Hazardous Waste Management, of the NREPA; Subtitle C of the Resource Conservation and Recovery Act, 42 USC Section 6901 et seq.; valid administrative rules promulgated thereunder; and all other relevant state and federal laws. 2. Notification of Residual Light Nonaqueous -Phase Liquids. Residual Light Nonaqueous-Phase Liquids (LNAPL), characterized as degraded unleaded gasoline, exist on the Restricted Property and can be found below the ground surface at a depth of approximately seven feet. The location of the LNAPL is further described and depicted in the CR. The LNAPL was properly characterized in the CR using a conceptual site model in accordance with ASTME 2531-06. The LNAPL shall remain in place on/in the Restricted Property and the LNAPL does not pose an unacceptable exposure to the Restricted Property. 3. MDEQ Access.. The Owner grants to the MDEQ and its designated representatives the right to enter the Restricted Property at reasonable times for the purpose of determining and monitoring compliance with the CR, including the right to take samples, inspect the operation and maintenance of the corrective action measures and inspect any records relating to them, and to perform any actions necessary to maintain compliance with Part 213 and the CR. 4. Conveyance of Property Interest. A conveyance of title, easement, or other interest in the Restricted Property, described and surveyed in Exhibit 2, shall not be consummated by the Owner without adequate and complete provision for compliance with the terms of the CR and this Restrictive Covenant. A copy of this Restrictive Covenant shall be provided to all future owners, heirs, successors, lessees, easement holders, assigns, and transferees by the person transferring the interest in accordance with Section 20116(3) and Section 21310a(2)(c) of the NREPA. 5. Audits Pursuant to Section 21315 of the NREPA. This Restrictive Covenant is subject to audits in accordance with the provisions of Section 21315 of the NREPA, and such an audit may result in the finding by the MDEQ that this Restrictive Covenant is not protective of the public health, safety, and welfare, and the environment. 6. Term of Restrictive Covenant. This Restrictive Covenant shall run with the Restrictive Property, described and surveyed in Exhibit 2, and is binding on the Owner; future owners; and their successors and assigns, lessees, easement holders, and any authorized agents, employees, or persons acting under their direction and control. This Restrictive Covenant shall continue in effect until the MDEQ or its successor determines that regulated substances no longer present an unacceptable risk to the 4 public health, safety, or welfare, or the environment, and may only be modified or rescinded with the written approval of the MDNRE. 7. Enforcement of Restrictive Covenant. The State of Michigan, through the MDEQ, and the County of Oakland may individually enforce the restrictions set forth in this Restrictive Covenant by legal action in a court of competent jurisdiction. 8. Disclaimer. The Restricted Property contains regulated substances in excess of the concentrations developed as the unrestricted residential criteria under Section 21304a(2) of the NREPA. The MDEQ recommends that prospective purchasers or users of this Restricted Property undertake appropriate due diligence prior to acquiring or using this Restricted Property and undertake appropriate actions to comply with the requirements of Section 20107a of the NREPA. 9. Severabilitv. If any provision of this Restrictive Covenant is held to be invalid by any court of competent jurisdiction, the invalidity of that provision shall not affect the validity of any other provision of this Restrictive Covenant, which shall continue unimpaired and in full force and effect. 10.Authority to Execute Restrictive Covenant. The undersigned person executing this Restrictive Covenant is the Owner, or has the express written permission of the Owner, and certifies that he or she is duly authorized to execute and record this Restrictive Covenant. 5 IN WITNESS WHEREOF, the County of Oakland has caused this Restrictive Covenant to be executed on this day of , 20 The County of Oakland By: Michael J. Gingell, Chairperson Oakland County Board of Commissioners STATE OF Michigan COUNTY OF Oakland Notary Public Signature Notary Public, State of County of My commission expires: Acting in the County of Drafted by: Jody S. Hall Assistant Corporation Counsel 1200 North Telegraph Road Pontiac, MI 48341 Return to: Jody S. Hall Assistant Corporation Counsel 1200 North Telegraph Road Pontiac, MI 48341 CONSENT OF OWNER The County of Oakland, the current and legal Owner of the Property and Restricted Property, do hereby consent to the recording of this Restrictive Covenant and authorize it to filed and recorded with the Oakland County Register of Deeds: By: Name: Title: STATE OF MICHIGAN COUNTY OF OAKLAND Notary Public Signature Notary Public, State of Michigan County of Oakland My commission expires: Acting in the County of Oakland EXHIBIT LEGAL DESCRIPTION OF PROPERTY: TOWN 4 NORTH, RANGE 8 EAST, SECTION 17, SOUTHEAST 1/4, ALSO THAT PART OF THE SOUTHEAST 1/4 OF THE NORTHEAST 1/4 LYING SOUTHERLY OF THE GRAND TRUNK WESTERN RAILROAD RIGHT OF WAY. Commonly known as Springfiled Oaks Golf Course, Tax I.D. 07-17-400-006 EXHIBIT 2 SURVEY AND LEGAL DESCRIPTION OF RESTRICTED PROPERTY: A PART OF THE SOUTHEAST 114 OF SECTION 17, TOWN 4 NORTH, RANGE 8 EAST, SPRINGFIELD TOWNSHIP, OAKLAND COUNTY, MICHIGAN, BEING MORE PARTICULARLY DESCRIBED AS: COMMENCING AT THE SOUTH 114 CORNER OF SAID SECTION 17; THENCE ALONG THE SOUTH LINE OF SAID SECTION 17 N88"331 0"E, 1118.48 FEET; THENCE N000000E, 508.94 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING N0000 .00E, 254.59 FEET; THENCE N90°0000"E, 323.46 FEET; THENCE SO0'00'00"E, 254.59 FEET; THENCE N900000"W, 323.46 FEET TO THE POINT OF BEGINNING AND CONTAINING 82,350 SQUARE FEET OR 1.89 ACRES. Part of the Springfield Oaks Golf Course and Part of Tax 1.D. 07-17-400-006 Survey Attached EXHIBIT 2 NOTE: t PLEASE SEE SHEET 2 FOR DETAIL OF DEED RESTRICTION AREA. 2. BEARINGS BASED ON STATE PLANE COORDINATE SYSTEM NAD83 (CORS 96) R4IZR0,40 0 200 400 800 EAST 1/4 CORNER SECTION 17 T.-4—N, R.-8—E. SPRINGFIELD TWP. OAKLAND COUNTY, OAKLAND COUNTY PARKS GOLF COURSE TAX ID No.: 07-17-400-006 CLARK RD. *z N88'33'1IrE 1118.48' _ PONT OF SOUTH LINE OF SECTION 17 - SOUTHEAST CORNER COMMENCEMENT SECTION 17 SOUTH 1/4 CORNER 7-4—N., R.-8—E. SECBON 17 SPRINGFIELD TAR T.-4—N., R.-8—E. OAKLAND COUNTY, MI SPRINGFIELD TAP. OAKLAND COUNTY, MI 0 0 LU NORTH-SOUTH DEED RESTRICTION AREA 82,350 SQ. FT. 1.89 ACRES 1 L :RSIC)N 2.1)1N REA \ DEED RESTRICTION AREA , NOW00'00"E 508.94' POINT OF BEGINNING 1:EV.: 02/16/11 DATE: 01/13/11 CHECKED BY DATE SCALE: 11400 Giffels-Webster Engineers, Inc. 17; YIP An...T.L [IT ..12ckri7Err., DRAWN: J.Z.13. DESIGN: A.L.G. 01/1 SHEET: 1 OF 2 SECTION: 17 -4-1,1, -11-E 013 No: 16834.27 SKETCH OF DEED RESTRICTION AREA LU PART OF THE SOUTHEAST 1/4 OF SECTION 17, T-4-N., R.-8-E., LU SPRINGFIELD TOWNSHIP, OAKLAND COUNTY MICHIGAN NO0'00'00-E DEED 'RESTRICTION AREA 82,350 ,SQ. FT. 1.89 ACRES DEED RESTRICTION NTS \ DEED RESTRICTION AR EXHIBIT 2 N90.00.00"E 323.46' OAKLAND COUNTY PARKS GOLF COURSE TAX ID No.: 07-17-400-006 NOTE: In 0 1. PLEASE SEE SHEET 1 FOR COMMENCEMENT INFORMATION. 2. BEARINGS BASED ON STATE PLANE COORDINATE SYSTEM NADB3 (COPS 96) ION 2.DINC; LEGEND PROPERTY DESCRIPTION fAN MONITORING WELL TAX ID NO. 07-17-400-006 (PER TAX DESCRIPTION) TOWN 4 NORTH, RANGE 8 EAST, SECTION 17, SOUTHEAST 1/4, ALSO THAT PART OF THE SOUTHEAST 1/4 OF THE NORTHEAST 1/4 LYING SOUTHERLY OF THE GRAND TRUNK WESTERN RAILROAD RIGHT OF WAY. DESCRIPTION OF DEED RESTRICTION AREA PART OF TAX ID NO. 07-17-400-006 A PART OF THE SOUTHEAST 1/4 OF SECTION 17, TOWN 4 NORTH, RANGE 8 EAST, SPRINGFIELD TOWNSHIP, OAKLAND UOUN Y, MICHIGAN, HUNG MORE PARTICULARLY DESCRIBED AS: COMMENCING AT THE SOUTH 1/4 CORNER OF SAID SECTION 17; THENCE ALONG THE SOUTH LINE OF SAID SECTION 17 N8833.10"E, 1118.48 FEET; THENCE NO0'00'00"E, 508.94 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING N00.00'00"E, 254.59 FEET; THENCE N90'00'00"E, 323.46 FEET; THENCE S00 .00'00 °E, 254.59 FEET; THENCE N9000'00"W, 323.46 FEET TO THE POINT OF BEGINNING AND CONTAINING 82,350 SQUARE FEET OR 1.89 ACRES. SKETCH OF DEED RESTRICTION AREA PART OF THE SOUTHEAST 1/4 OF SECTION 17, T-4-N., R.-8-E., SPRINGFIELD TOWNSHIP, OAKLAND COUNTY, MICHIGAN Giffels-Webster Engineers, Inc. \1,1 ,1,. I, 1,V 1) SI 1A1A1A111AS rf. 4 A' IC ILA - 1, 1,\-1)..11 trIA .111171111ACIA1 7.87i lit .A;TREIAT. I')) fl 1A STER 1111.1,.S. Ali. 111:10 11 (A2-111) 1-3 - 1 0 0 N:116 \ 16800 )ES1GN: 01/11 SECTION: 17 T -4-N , JOB No: 16834.27 Resolution #13086 April 17, 2013 The Chairperson referred the resolution to the Finance Committee. There were no objections.