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Contract analysis / draft-environmental-restrictive-covenant.docx
draft-environmental-restrictive-covenant.docx
High · 3
Medium · 13
Standard · 6
Section 1.01 — The Property
Section 1.01 — The Property The real property that is the subject of this Restrictive Covenant (the "Property" or the "Site") consists of a 48.7-acre tract of land being Lots 3 and 4 of the H.T. & B.R.R. Survey, Abstract No. 241, Wharton County, Texas, as more particularly described in that certain Deed recorded at Volume 1892, Page 417 of the Official Public Records of Wharton County, Texas, and as more particularly
Section 1.02 — Ownership History
Medium
⚑ Assignment / subcontracting
Section 1.02 — Ownership History The Grantor, Calera Properties Group LLC, acquired the Property at a tax foreclosure sale conducted in March 2019 for a purchase price of $612,000.00. Prior to the Grantor's acquisition of the Property, the Property was the site of a petroleum bulk-storage terminal operated by Dunmore Terminal Services, Inc. ("DTS"), a Texas corporation, from 1974 through 2015. The DTS facility consis
Section 1.03 — Environmental Conditions and Remediation
Standard
⚑ Commercial term
Section 1.03 — Environmental Conditions and Remediation Over the course of its operational history from 1974 through 2015, the Property experienced documented releases of petroleum products resulting in contamination of both soil and groundwater beneath and downgradient of the Property. The contaminants of concern ("COCs") identified through environmental investigation include benzene, toluene, ethylbenzene, and xyle
Section 1.04 — TCEQ Voluntary Cleanup Program
Standard
⚑ Commercial term
Section 1.04 — TCEQ Voluntary Cleanup Program Dunmore Energy Holdings Ltd. submitted an application to the TCEQ Voluntary Cleanup Program on June 25, 2025, together with the required application fee of $1,000.00. TCEQ assigned VCP Tracking No. VCP-2517 to the Property. An Affected Property Assessment Report ("APAR") was prepared and submitted to TCEQ, documenting the nature and extent of contamination at the Property
Section 1.05 — Purpose
Section 1.05 — Purpose This Restrictive Covenant is executed to memorialize land-use restrictions and other institutional controls that are conditions of the TCEQ Certificate of Completion issued for the Property under VCP-2517. Residual contamination remains in soil and/or groundwater at the Property at concentrations that exceed TCEQ Tier 1 Protective Concentration Levels for residential use but that meet TCEQ Tier
Section 2.01 — Defined Terms
Medium
⚑ Liability cap to check against exposure
Section 2.01 — Defined Terms As used in this Restrictive Covenant, the following terms shall have the meanings set forth below. Terms defined elsewhere in this instrument shall have the meanings ascribed to them where first defined. (a) "APAR" means the Affected Property Assessment Report prepared for the Property and submitted to TCEQ in connection with VCP-2517, documenting the nature and extent of contamination at
ARTICLE III — LAND USE RESTRICTIONS
ARTICLE III — LAND USE RESTRICTIONS
Section 3.01 — Restriction to Commercial/Industrial Use
High
⚑ Non-compete / exclusivity restraint
Section 3.01 — Restriction to Commercial/Industrial Use (a) The Property shall be used exclusively for Commercial/Industrial Use. No Owner, lessee, licensee, occupant, or other person or entity shall use the Property, or any portion thereof, for any purpose other than Commercial/Industrial Use as defined in Section 2.01(f) of this Restrictive Covenant. (b) Residential Use of the Property, or any portion thereof, is s
Section 3.02 — Prohibition on Groundwater Wells
Medium
⚑ Liability cap to check against exposure
Section 3.02 — Prohibition on Groundwater Wells (a) No person shall install, construct, complete, or operate any water well, monitoring well (other than monitoring wells installed as part of TCEQ-approved monitoring or remediation activities conducted in connection with VCP-2517 or any successor corrective action program), or any other device, mechanism, or system for the extraction, withdrawal, or pumping of groundw
Section 3.03 — Restriction on Soil Disturbance
Standard
⚑ Commercial term
Section 3.03 — Restriction on Soil Disturbance (a) No excavation, drilling, grading, trenching, boring, piling installation, foundation construction, utility installation, or other disturbance of soil at depths greater than ten (10) feet below ground surface shall be undertaken on the Property without the prior written approval of TCEQ. This restriction applies to all areas of the Property, regardless of whether resi
Section 3.04 — Maintenance of Engineered Caps and Covers
Medium
⚑ Liability cap to check against exposure
Section 3.04 — Maintenance of Engineered Caps and Covers (a) To the extent that any Engineered Caps or Covers have been installed on any portion of the Property as part of the remediation conducted under VCP-2517, as depicted on the Site Map attached hereto as Exhibit B, the Owner shall maintain such Engineered Caps and Covers in good condition and repair at all times, such that they continue to function effectively
ARTICLE IV — NOTICE AND DISCLOSURE REQUIREMENTS
ARTICLE IV — NOTICE AND DISCLOSURE REQUIREMENTS
Section 4.01 — Notice to Successors and Assigns
Medium
⚑ Liability cap to check against exposure
Section 4.01 — Notice to Successors and Assigns (a) Prior to any conveyance, transfer, assignment, lease, sublease, license, easement grant, or other disposition of the Property, or any interest therein or portion thereof, the Owner shall provide written notice to the prospective transferee, lessee, sublessee, licensee, or other recipient of such interest of the existence of this Environmental Restrictive Covenant an
Section 4.02 — Notice to TCEQ
Medium
⚑ Liability cap to check against exposure
Section 4.02 — Notice to TCEQ The Owner shall provide written notice to TCEQ, at the address set forth in Section 9.02 of this Restrictive Covenant, within thirty (30) days of the occurrence of any of the following events: (a) Any conveyance, transfer, assignment, or change in ownership of the Property or any portion thereof, including but not limited to sales, foreclosures, tax sales, judicial sales, and transfers b
Section 4.03 — Disclosure in Real Estate Transactions
Medium
⚑ Forum / governing law
Section 4.03 — Disclosure in Real Estate Transactions This Restrictive Covenant shall constitute notice for purposes of all applicable requirements under the Texas Property Code and other applicable law regarding the disclosure of known environmental conditions, contamination, or hazardous substances affecting real property. The recording of this Restrictive Covenant in the Official Public Records of Wharton County,
ARTICLE V — COMPLIANCE MONITORING AND REPORTING
ARTICLE V — COMPLIANCE MONITORING AND REPORTING
Section 5.01 — TCEQ Access
Section 5.01 — TCEQ Access (a) The Owner hereby grants to TCEQ and its authorized representatives, agents, employees, and contractors the right of reasonable access to the Property at all reasonable times, upon reasonable prior notice to the Owner (which notice shall not be less than five (5) business days except in the case of an emergency), for the purpose of inspecting the Property to determine compliance with the
Section 5.02 — Periodic Compliance Certification
High
⚑ Penalty / liquidated damages
Section 5.02 — Periodic Compliance Certification (a) The Owner shall submit to TCEQ, at such intervals as TCEQ may require but not less frequently than once every five (5) years following the date of recording of this Restrictive Covenant, a written certification that the Owner is in compliance with all terms and conditions of this Restrictive Covenant. (b) Each such certification shall include, at a minimum, the fol
Section 5.03 — Groundwater Monitoring
Section 5.03 — Groundwater Monitoring (a) If TCEQ requires continued groundwater monitoring at the Property as a condition of the Certificate of Completion, or as a condition of maintaining the validity of the Certificate of Completion, beyond the active monitoring period conducted during the remediation phase, the Owner or its designated agent or contractor shall conduct such monitoring and submit the results to TCE
Section 6.01 — Parties Entitled to Enforce
Medium
⚑ Liability cap to check against exposure
Section 6.01 — Parties Entitled to Enforce This Restrictive Covenant may be enforced by any of the following parties: (a) TCEQ, acting in its regulatory capacity under Texas Health and Safety Code Chapter 361, Subchapter S, and applicable rules and regulations, including but not limited to 30 Texas Administrative Code Chapters 333 and 350; (b) Dunmore Energy Holdings Ltd., or its successors and assigns, as the party
Section 6.02 — No Waiver
High
⚑ Non-compete / exclusivity restraint
Section 6.02 — No Waiver The failure of any party entitled to enforce this Restrictive Covenant to exercise any right, remedy, or power hereunder upon the occurrence of any breach or default, or the delay by any such party in exercising any such right, remedy, or power, shall not constitute a waiver of such right, remedy, or power, or of any subsequent breach or default. No single or partial exercise of any right, re
Section 6.03 — Costs of Enforcement
Standard
⚑ Commercial term
Section 6.03 — Costs of Enforcement In any action, suit, or proceeding brought to enforce any provision of this Restrictive Covenant or to remedy any breach or violation hereof, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys' fees, expert witness fees, court costs, and all other costs and expenses incurred in connection with such action, suit, or proceeding, i
ARTICLE VII — MODIFICATION AND TERMINATION
ARTICLE VII — MODIFICATION AND TERMINATION
Section 7.01 — Modification
Medium
⚑ Liability cap to check against exposure
Section 7.01 — Modification (a) This Restrictive Covenant may be modified, amended, or supplemented only with the prior written approval of TCEQ. No modification, amendment, or supplement to this Restrictive Covenant shall be effective or enforceable unless and until it has been approved in writing by TCEQ and recorded in the Official Public Records of Wharton County, Texas. (b) Any modification, amendment, or supple
Section 7.02 — Termination
Section 7.02 — Termination (a) This Restrictive Covenant shall remain in full force and effect unless and until TCEQ issues a written determination that the restrictions contained herein are no longer necessary to protect human health and the environment at and in the vicinity of the Property. (b) Such determination may be based upon, among other factors: (i) evidence, supported by environmental sampling data, that r
Section 7.03 — Invalidity of Certificate of Completion
Medium
⚑ Forum / governing law
Section 7.03 — Invalidity of Certificate of Completion In the event that this Restrictive Covenant is removed from the public records, modified without the prior written approval of TCEQ, or violated in a material respect, TCEQ may, in its sole discretion and in accordance with applicable law and regulations, revoke, suspend, or modify the Certificate of Completion issued for the Property under VCP-2517, and may requ
ARTICLE VIII — COVENANTS RUNNING WITH THE LAND
ARTICLE VIII — COVENANTS RUNNING WITH THE LAND
Section 8.01 — Binding Effect
Section 8.01 — Binding Effect This Restrictive Covenant shall constitute a covenant running with the land pursuant to applicable Texas law and shall be binding upon the Grantor, and upon all successors, assigns, heirs, devisees, personal representatives, lessees, sublessees, licensees, occupants, and all other persons or entities that may hereafter acquire any interest in the Property or any portion thereof, whether
Section 8.02 — Privity
Section 8.02 — Privity The Grantor hereby declares that this Restrictive Covenant touches and concerns the land, inasmuch as it directly regulates and restricts the use of the Property and imposes obligations upon the Owner that relate to the physical condition and use of the Property. There is privity of estate between the Grantor and all subsequent owners of the Property, and the restrictions and obligations contai
Section 8.03 — Severability
Section 8.03 — Severability If any provision of this Restrictive Covenant, or the application of any provision to any person, entity, or circumstance, is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality, or unenforceability shall not affect the validity, legality, or enforceability of any other provision of this Restrictive Covenant or the
ARTICLE IX — GENERAL PROVISIONS
ARTICLE IX — GENERAL PROVISIONS
Section 9.01 — Governing Law
Medium
⚑ Forum / governing law
Section 9.01 — Governing Law This Restrictive Covenant shall be governed by, and construed and enforced in accordance with, the laws of the State of Texas, without regard to principles of conflicts of law. Venue for any action, suit, or proceeding arising out of or relating to this Restrictive Covenant shall lie in a court of competent jurisdiction in Wharton County, Texas, or in the United States District Court for
Section 9.02 — Notices
Section 9.02 — Notices All notices, requests, demands, consents, approvals, certifications, and other communications required or permitted under this Restrictive Covenant shall be in writing and shall be deemed duly given if (a) delivered personally, (b) sent by certified or registered mail, return receipt requested, postage prepaid, (c) sent by nationally recognized overnight courier service, or (d) transmitted by e
Section 9.03 — Counterparts
Section 9.03 — Counterparts This Restrictive Covenant may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Signatures transmitted by facsimile or electronic means (including PDF) shall have the same force and effect as original signatures.
Section 9.04 — Entire Agreement
Section 9.04 — Entire Agreement This Restrictive Covenant, together with the exhibits attached hereto and incorporated herein by reference, constitutes the entire agreement among the parties hereto regarding institutional controls for the Property under VCP-2517, and supersedes all prior and contemporaneous negotiations, representations, warranties, understandings, and agreements, whether oral or written, relating to
Section 9.05 — Headings
Section 9.05 — Headings The article and section headings contained in this Restrictive Covenant are included for convenience of reference only and shall not be deemed to be a part of this Restrictive Covenant or to affect the meaning or interpretation of any provision hereof.
Section 9.06 — No Third-Party Beneficiaries
Section 9.06 — No Third-Party Beneficiaries Except for TCEQ and Dunmore Energy Holdings Ltd., which are express third-party beneficiaries of this Restrictive Covenant with full rights of enforcement as set forth in Article VI hereof, this Restrictive Covenant is not intended to, and shall not be construed to, create any rights, interests, or causes of action in or on behalf of any person or entity other than the part
Section 9.07 — References to Regulatory Standards
Section 9.07 — References to Regulatory Standards All references in this Restrictive Covenant to TCEQ regulations, Protective Concentration Levels, Maximum Contaminant Levels, and other regulatory standards shall refer to such standards as in effect at the time of the relevant determination, action, or event to which such reference applies, unless otherwise specified by TCEQ. In the event that any regulatory standard
1. Property Boundaries: The boundaries of the entire 48.7-acre tract, with bearings and d
1. Property Boundaries: The boundaries of the entire 48.7-acre tract, with bearings and distances, as established by survey.
2. Northern Tank Farm: Location of the northern tank farm, consisting of twelve (12) abov
2. Northern Tank Farm: Location of the northern tank farm, consisting of twelve (12) aboveground storage tanks designated Tanks N-1 through N-12, with a total combined storage capacity of approximately 420,000 barrels. Individual tank locations shall be labeled.
3. Southern Tank Farm: Location of the southern tank farm, consisting of twelve (12) abov
3. Southern Tank Farm: Location of the southern tank farm, consisting of twelve (12) aboveground storage tanks designated Tanks S-1 through S-12, with a total combined storage capacity of approximately 315,000 barrels. Individual tank locations shall be labeled.
4. Known Areas of Residual Contamination: Locations of known areas of residual contaminat
4. Known Areas of Residual Contamination: Locations of known areas of residual contamination in soil, including the Tank S-7 area in the southern tank farm and the Tank N-3 area in the northern tank farm, shall be delineated and labeled.
5. Dissolved Benzene Groundwater Plume: The approximate extent of the dissolved-phase ben
Standard
⚑ Commercial term
5. Dissolved Benzene Groundwater Plume: The approximate extent of the dissolved-phase benzene groundwater plume, extending approximately 2,400 feet downgradient in a south-southwest direction from the southern tank farm, shall be depicted with isoconcentration contours or a plume boundary delineation.
6. Engineered Caps and Covers: Location and extent of any Engineered Caps or Covers insta
6. Engineered Caps and Covers: Location and extent of any Engineered Caps or Covers installed as part of the remediation conducted under VCP-2517.
7. Groundwater Monitoring Wells: Locations of all existing groundwater monitoring wells o
7. Groundwater Monitoring Wells: Locations of all existing groundwater monitoring wells on the Property and in the immediate vicinity, with well identification numbers.
8. Former Infrastructure: Location of the decommissioned truck loading rack and pipeline
8. Former Infrastructure: Location of the decommissioned truck loading rack and pipeline interconnects formerly used in terminal operations.
9. Nearest Residential Receptor: Location of the nearest residential receptor, identified
Standard
⚑ Commercial term
9. Nearest Residential Receptor: Location of the nearest residential receptor, identified as the Ingram Property at 16405 FM 1301, located approximately 3,100 feet south-southwest of the leading edge of the dissolved benzene groundwater plume.
10. Groundwater Flow Direction: An arrow indicating the direction of groundwater flow, wh
10. Groundwater Flow Direction: An arrow indicating the direction of groundwater flow, which is generally south-southwest across the Property.
11. Scale and North Arrow: The Site Map shall include a graphic scale and a north arrow.
Medium
⚑ Notice / time limit to track
11. Scale and North Arrow: The Site Map shall include a graphic scale and a north arrow. [Site Map to be prepared by Pinehill Environmental Consulting LLC upon completion of remediation activities. The Site Map shall be prepared at a scale sufficient to clearly depict the features listed above, and shall be reviewed and approved by TCEQ prior to recording.] EXHIBIT C TCEQ CERTIFICATE OF COMPLETION VCP Tracking No.: V
1. All dates to be filled in upon execution following issuance of Certificate of Completi
1. All dates to be filled in upon execution following issuance of Certificate of Completion.
2. Post-remediation concentration data for all COCs (Exhibit D, Tables D-1 and D-2) to be
2. Post-remediation concentration data for all COCs (Exhibit D, Tables D-1 and D-2) to be completed upon final confirmation sampling by Pinehill Environmental Consulting LLC.
3. Full metes and bounds legal description (Exhibit A) to be inserted from the survey of
3. Full metes and bounds legal description (Exhibit A) to be inserted from the survey of record.
4. Site Map (Exhibit B) to be prepared by Pinehill Environmental Consulting LLC upon comp
4. Site Map (Exhibit B) to be prepared by Pinehill Environmental Consulting LLC upon completion of remediation.
5. Certificate of Completion (Exhibit C) to be attached upon issuance by TCEQ.
5. Certificate of Completion (Exhibit C) to be attached upon issuance by TCEQ.
6. Final form may require adjustments based on actual remediation outcomes, post-remediat
6. Final form may require adjustments based on actual remediation outcomes, post-remediation sampling data, and specific conditions imposed by TCEQ in the Certificate of Completion.
7. Notarial acknowledgment for DEH (Gavin Rourke) may need to be adapted depending on whe
Medium
⚑ Confidentiality undertaking
7. Notarial acknowledgment for DEH (Gavin Rourke) may need to be adapted depending on whether execution occurs in the Cayman Islands, in Texas, or in another jurisdiction. If executed in the Cayman Islands, an apostille under the Hague Convention may be required for recording in Texas. Coordination with Other Agreements: • Site Access and Cost-Sharing Agreement between DEH and Calera Properties Group LLC, executed co