ENVIRONMENTAL RESTRICTIVE COVENANT AND DEED RESTRICTION
An Institutional Control Instrument for Recording in the Official Public Records of Wharton County, Texas
DRAFT — Prepared by Calderwood & Harkness LLP for review and comment
Prepared by: Cynthia Ho, Calderwood & Harkness LLP, 1200 McKinney Street, Suite 4100, Houston, TX 77010
Matter No.: 1016-00006
Status: Draft — subject to TCEQ review and approval upon issuance of Certificate of Completion under VCP-2517
AFTER RECORDING RETURN TO:
Cynthia Ho Calderwood & Harkness LLP 1200 McKinney Street, Suite 4100 Houston, TX 77010
FOR COUNTY CLERK USE ONLY:
Reference: Deed recorded at Volume 1892, Page 417, Official Public Records, Wharton County, Texas
Tax Parcel ID: WC-0241-0034
PREAMBLE
STATE OF TEXAS
COUNTY OF WHARTON
DATE: [__], 20[_]
KNOW ALL PERSONS BY THESE PRESENTS:
This Environmental Restrictive Covenant and Deed Restriction (this "Restrictive Covenant") is executed as of the date set forth above by CALERA PROPERTIES GROUP LLC, a Texas limited liability company, by and through its Managing Member, Rebecca Strand, having its principal office at 2900 Woodlands Parkway, Suite 310, The Woodlands, Texas 77381 (EIN: 84-3207156) (hereinafter referred to as the "Grantor" or "Calera"), as the fee simple owner of the Property described herein.
WITH THE CONSENT OF:
DUNMORE ENERGY HOLDINGS LTD. ("DEH"), an exempted company duly incorporated and existing under the laws of the Cayman Islands, Cayman Registration No. MC-318574, with its headquarters located at 4th Floor, Harbour Place, 103 South Church Street, George Town, Grand Cayman, KY1-1002, Cayman Islands (hereinafter referred to as the "Consenting Party" or "DEH"), as the party that performed voluntary remediation of the Property under the Texas Commission on Environmental Quality Voluntary Cleanup Program and as the successor-in-interest to Dunmore Terminal Services, Inc. (EIN: 76-0384291), a dissolved Texas corporation.
WITNESSETH:
WHEREAS, this instrument is executed pursuant to and in connection with the Texas Commission on Environmental Quality ("TCEQ") Voluntary Cleanup Program ("VCP"), established under Texas Health and Safety Code Chapter 361, Subchapter S, and the rules promulgated thereunder at 30 Texas Administrative Code Chapter 333, in connection with VCP Tracking No. VCP-2517; and
WHEREAS, this Restrictive Covenant is an institutional control required as a condition of the TCEQ Certificate of Completion issued for the Property, which Certificate of Completion confirms that the Property has been remediated to standards protective of human health and the environment for commercial and industrial land use; and
WHEREAS, this instrument shall constitute a covenant running with the land and shall be binding upon all successors, assigns, heirs, lessees, licensees, occupants, and future owners of the Property, and shall inure to the benefit of and be enforceable by TCEQ and DEH, and their respective successors and assigns;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the TCEQ's issuance of the Certificate of Completion for the Property, the Grantor hereby declares, covenants, and agrees as follows:
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ARTICLE I — RECITALS
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 described by metes and bounds in Exhibit A attached hereto and incorporated herein by reference for all purposes. The Property is commonly known as the "Dunmore Wharton Terminal" and has a street address of 14200 FM 1301, Wharton, Wharton County, Texas 77488. The Tax Parcel ID for the Property is WC-0241-0034. A site map depicting the Property boundaries, relevant features, and areas of environmental concern is attached hereto as Exhibit B and incorporated herein by reference. The Property is currently classified under the Heavy Industrial (HI) zoning designation pursuant to Wharton County regulations applicable to unincorporated areas.
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 consisted of two principal operating areas: a northern tank farm and a southern tank farm. The northern tank farm consisted of twelve (12) aboveground storage tanks, designated Tanks N-1 through N-12, with a total combined storage capacity of approximately 420,000 barrels. The southern tank farm consisted of twelve (12) aboveground storage tanks, designated Tanks S-1 through S-12, with a total combined storage capacity of approximately 315,000 barrels. A portion of the Property encompassing the southern tank farm, consisting of approximately eighteen (18) acres, was co-operated by Rowan Creek Fuel Distributors, Inc. under a Joint Operating Agreement dated March 15, 1991, as amended, from 1991 through 2010.
DTS was dissolved effective December 31, 2017, pursuant to a Certificate of Termination filed with the Texas Secretary of State. Prior to its dissolution, DTS's environmental liabilities, including all liabilities arising out of or relating to the contamination of the Property, were assumed by Dunmore Energy Holdings Ltd. pursuant to that certain Plan of Dissolution and Assignment of Liabilities dated October 15, 2017, executed by DTS and DEH. DEH is accordingly the successor-in-interest to DTS with respect to all environmental obligations and liabilities associated with the Property.
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 xylenes (collectively, "BTEX"); total petroleum hydrocarbons ("TPH"); methyl tert-butyl ether ("MTBE"); and dissolved-phase lead.
Soil Contamination. Environmental investigations documented TPH concentrations in soil of up to 14,200 milligrams per kilogram ("mg/kg") in the southern tank farm in the vicinity of Tank S-7, and up to 8,750 mg/kg in the northern tank farm in the vicinity of Tank N-3. Benzene concentrations in soil were documented at levels up to 42 mg/kg in the most impacted areas of the southern tank farm. These concentrations substantially exceeded applicable TCEQ Tier 1 Protective Concentration Levels for both residential and commercial/industrial land use.
Groundwater Contamination. Environmental investigations documented a dissolved-phase benzene plume in groundwater extending approximately 2,400 feet downgradient in a south-southwest direction from the southern tank farm. The maximum dissolved benzene concentration detected in groundwater was 3.8 milligrams per liter ("mg/L"), which is approximately 760 times the federal Maximum Contaminant Level ("MCL") of 0.005 mg/L established under the Safe Drinking Water Act. MTBE was detected in groundwater at concentrations up to 1.2 mg/L. Dissolved-phase lead was detected in groundwater at concentrations up to 0.087 mg/L, which exceeds the federal MCL of 0.015 mg/L. The affected aquifer is the Chicot Aquifer, shallow zone, which is encountered at approximately twenty-two (22) feet below ground surface ("bgs") beneath the Property.
Remediation. Environmental investigation and remediation of the Property were conducted by Dunmore Energy Holdings Ltd. under the TCEQ Voluntary Cleanup Program, VCP Tracking No. VCP-2517, with environmental consulting services provided by Pinehill Environmental Consulting LLC, under the direction of Dr. Lena Vasquez, P.E., P.G., Principal-in-Charge. The total estimated cost of remediation activities at the Property is $9,740,000.00, as estimated by Pinehill Environmental Consulting LLC in its cost estimate dated April 2025. Remediation activities conducted at the Property included, without limitation: (a) excavation and off-site disposal of contaminated soils in both the northern and southern tank farm areas; (b) in-situ groundwater treatment utilizing chemical oxidation and enhanced bioremediation technologies; (c) long-term groundwater monitoring to verify the effectiveness of remediation and to document attenuation of the dissolved-phase contaminant plume; and (d) implementation of institutional controls, including this Restrictive Covenant.
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. A Voluntary Cleanup Work Plan was prepared and submitted to TCEQ, and was subsequently approved by TCEQ, authorizing the remediation activities described in Section 1.03 above. Active remediation was conducted at the Property in accordance with the approved Work Plan, followed by post-remediation monitoring to confirm the effectiveness of remediation.
Upon completion of remediation and monitoring activities, and upon TCEQ's review and acceptance of all required documentation, TCEQ issued a Certificate of Completion ("CoC") for the Property, dated [___], a copy of which is attached hereto as Exhibit C and incorporated herein by reference. The Certificate of Completion confirms that the Property has been remediated to standards protective of human health and the environment for commercial and industrial land use, based on TCEQ Tier 1 Protective Concentration Levels ("PCLs") for commercial/industrial use as set forth in 30 Texas Administrative Code Chapter 350. The Certificate of Completion is expressly conditioned upon the execution, recording, and maintenance of this Environmental Restrictive Covenant in the Official Public Records of Wharton County, Texas.
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 1 Protective Concentration Levels for commercial and industrial use. A summary of residual contamination concentrations and applicable PCLs is set forth in Exhibit D attached hereto and incorporated herein by reference. These restrictions are necessary to ensure the continued protection of human health and the environment, to prevent exposure to residual contamination through inappropriate land use or activities, and to maintain the validity and enforceability of the Certificate of Completion issued by TCEQ for the Property.
ARTICLE II — DEFINITIONS
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 the Property.
(b) "bgs" means below ground surface, measured from the existing ground surface elevation at the relevant location on the Property.
(c) "Certificate of Completion" or "CoC" means the certificate issued by TCEQ under the Voluntary Cleanup Program confirming satisfactory completion of remediation at the Property, a copy of which is attached hereto as Exhibit C.
(d) "Chicot Aquifer Shallow Zone" means the uppermost water-bearing unit beneath the Property, encountered at approximately twenty-two (22) feet below ground surface, which constitutes the principal aquifer impacted by contamination from former terminal operations at the Property.
(e) "COCs" or "Contaminants of Concern" means the contaminants identified through environmental investigation as being present at the Property at concentrations of regulatory concern, specifically benzene, toluene, ethylbenzene, and xylenes (collectively, "BTEX"), total petroleum hydrocarbons ("TPH"), methyl tert-butyl ether ("MTBE"), and dissolved-phase lead.
(f) "Commercial/Industrial Use" means any use of the Property that is permitted under the Heavy Industrial (HI) zoning classification applicable to the Property, or any successor commercial or industrial zoning classification that may be adopted by the applicable governmental authority, including but not limited to manufacturing, warehousing, storage, distribution, transportation, energy production, and other commercial or industrial activities. Commercial/Industrial Use expressly excludes Residential Use as defined herein.
(g) "Engineered Cap/Cover" means any physical barrier installed on the surface of the Property or at shallow depth as part of the remediation conducted under VCP-2517 for the purpose of preventing direct contact between human receptors and residual contamination in soil, including but not limited to asphalt pavement, concrete slabs or pads, compacted clay caps, geomembrane liners, or any combination thereof.
(h) "Grantor" means Calera Properties Group LLC, a Texas limited liability company, and its successors and assigns as fee simple owner or owners of the Property or any portion thereof.
(i) "Institutional Controls" means non-engineered instruments, mechanisms, or restrictions, such as this Restrictive Covenant, that are implemented to limit land use or restrict activities at or near a contaminated property in order to reduce or eliminate potential exposure of human and ecological receptors to residual contamination.
(j) "MCL" means Maximum Contaminant Level, as established by the United States Environmental Protection Agency under the federal Safe Drinking Water Act, 42 U.S.C. § 300f et seq., and applicable implementing regulations.
(k) "Owner" means the then-current fee simple owner or owners of the Property or any portion thereof, including Calera Properties Group LLC and its successors, assigns, and heirs, and any subsequent purchaser, grantee, or transferee of the Property or any interest therein.
(l) "PCL" or "Protective Concentration Level" means the Protective Concentration Level as defined by TCEQ in 30 Texas Administrative Code Chapter 350 (Texas Risk Reduction Program), which establishes concentration levels for chemicals in environmental media that are protective of human health and the environment for specified land-use categories.
(m) "Property" means the 48.7-acre tract of land described in Section 1.01 of this Restrictive Covenant and in Exhibit A attached hereto, commonly known as the Dunmore Wharton Terminal, located at 14200 FM 1301, Wharton, Wharton County, Texas 77488, Tax Parcel ID WC-0241-0034.
(n) "Residential Use" means any use of the Property or any portion thereof involving habitation, dwelling, or occupancy for residential purposes, including without limitation single-family residential development, multi-family residential development, mixed-use development that includes any residential component, schools (whether public or private), daycare facilities or childcare centers, hospitals or other healthcare facilities providing inpatient care, nursing homes, assisted living facilities, or any similar occupancy in which individuals reside on a permanent, semi-permanent, or overnight basis.
(o) "TCEQ" means the Texas Commission on Environmental Quality, an agency of the State of Texas, or any successor agency that assumes TCEQ's regulatory authority over the Voluntary Cleanup Program or environmental remediation in the State of Texas.
(p) "VCP" means the TCEQ Voluntary Cleanup Program established under Texas Health and Safety Code Chapter 361, Subchapter S, and administered pursuant to 30 Texas Administrative Code Chapter 333.
ARTICLE III — LAND USE RESTRICTIONS
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 strictly prohibited. Without limiting the generality of the foregoing, no person shall construct, place, install, or maintain any dwelling, residence, apartment, condominium, townhome, manufactured home, mobile home, or any other structure or facility intended for human habitation on the Property.
(c) No portion of the Property shall be used for schools (whether public or private), daycare centers or childcare facilities, hospitals or other healthcare facilities providing inpatient care, playgrounds, parks, recreational areas, community gardens, urban farms, or any other sensitive land use that would be inconsistent with the assumptions underlying the TCEQ Tier 1 Protective Concentration Levels for commercial/industrial use upon which the Certificate of Completion was based.
(d) Any proposed change in land use from Commercial/Industrial Use to any other use category shall require the prior written approval of TCEQ. No such change in land use shall be implemented unless and until TCEQ has provided its written approval, which approval may be conditioned upon additional remediation, risk assessment, or modification of this Restrictive Covenant as TCEQ deems necessary to ensure the continued protection of human health and the environment.
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 groundwater from the Chicot Aquifer shallow zone beneath the Property.
(b) This prohibition extends to wells installed or operated for any purpose whatsoever, including but not limited to drinking water supply, domestic water supply, irrigation, livestock watering, industrial process water, cooling water, fire suppression, dewatering (except as specifically approved by TCEQ in connection with remediation or construction activities conducted pursuant to an approved work plan), or any other purpose.
(c) The installation of deeper wells that penetrate below the Chicot Aquifer shallow zone and into deeper aquifer units shall require the prior written approval of TCEQ. Any application for such approval shall include documentation demonstrating that the proposed well will be properly constructed with appropriate casing, grouting, and sealing to prevent cross-contamination between the Chicot Aquifer shallow zone and deeper aquifer zones, and that the proposed well will not create a preferential pathway for the migration of contaminants. The Owner shall provide TCEQ with a copy of the well completion report for any such well within thirty (30) days of its completion.
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 residual contamination has been documented at the specific location of the proposed disturbance.
(b) Any proposed soil disturbance at or below ten (10) feet bgs shall require the submission of a written work plan to TCEQ prior to the commencement of the proposed activity. Such work plan shall demonstrate, to the satisfaction of TCEQ, that: (i) the proposed activity will not compromise the effectiveness of the remediation conducted at the Property under VCP-2517; (ii) the proposed activity will not create new exposure pathways for residual contamination to reach human or ecological receptors; and (iii) the proposed activity will include appropriate health and safety measures, including a site-specific Health and Safety Plan prepared in accordance with 29 C.F.R. § 1910.120 (HAZWOPER), for the protection of workers who may encounter residual contamination in soil or groundwater during the course of the proposed activity.
(c) Soil brought to the surface from depths greater than ten (10) feet bgs shall be managed in accordance with all applicable TCEQ regulations and may require characterization, sampling, handling, transportation, and disposal as contaminated material in accordance with applicable state and federal requirements. The Owner shall be responsible for all costs associated with the management, characterization, and disposal of any such soil, unless otherwise agreed in writing between the Owner and DEH.
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 as barriers preventing direct contact between human receptors and residual contamination in the soil beneath such caps and covers.
(b) The Owner shall not remove, breach, penetrate, excavate through, or otherwise compromise the integrity of any Engineered Cap or Cover without the prior written approval of TCEQ. Any request for such approval shall include a description of the proposed activity, an assessment of the potential for exposure to residual contamination, and a plan for restoration or replacement of the Engineered Cap or Cover upon completion of the proposed activity.
(c) In the event that any Engineered Cap or Cover is damaged by any cause, including but not limited to natural weathering, erosion, settling, vehicular traffic, construction activity, vandalism, or acts of God, the Owner shall promptly repair or replace the damaged Engineered Cap or Cover to restore its effectiveness as a barrier. The Owner shall notify TCEQ in writing of any such damage and of the repair or replacement measures undertaken within thirty (30) days of the Owner's discovery of such damage.
(d) Routine maintenance of Engineered Caps and Covers, including but not limited to patching of cracks in asphalt or concrete, repair of erosion damage to clay caps, re-grading of drainage features, and re-sealing of joints or penetrations, is the ongoing responsibility of the Owner and shall be performed at the Owner's sole cost and expense. The Owner shall maintain records of all maintenance activities performed on Engineered Caps and Covers and shall make such records available to TCEQ upon request.
ARTICLE IV — NOTICE AND DISCLOSURE REQUIREMENTS
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 and the land-use restrictions, activity restrictions, and other obligations contained herein.
(b) A copy of this Restrictive Covenant, together with all exhibits attached hereto, or, at a minimum, a specific reference to this Restrictive Covenant's recording information in the Official Public Records of Wharton County, Texas (including the volume, page number, and document number assigned by the Wharton County Clerk upon recording), shall be included in, attached to, or expressly referenced in any deed, contract of sale, lease, sublease, license agreement, easement, or other instrument of conveyance, transfer, or disposition affecting the Property or any interest therein.
(c) The obligation set forth in this Section 4.01 is in addition to, and not in lieu of, any notice or disclosure obligation imposed by applicable federal, state, or local law, including but not limited to the disclosure requirements of the Texas Property Code and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA").
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 by operation of law;
(b) Any proposed change in land use from Commercial/Industrial Use to any other use category;
(c) Any damage to or breach of any Engineered Cap or Cover installed on the Property;
(d) Any proposed excavation, drilling, grading, trenching, or other soil disturbance at depths greater than ten (10) feet below ground surface;
(e) Any discovery of previously unknown contamination on the Property, whether discovered during construction activities, environmental investigations, or otherwise;
(f) Any actual or threatened release of hazardous substances, hazardous wastes, petroleum products, or other pollutants or contaminants on, at, under, or from the Property; and
(g) Any enforcement action, lawsuit, claim, or demand relating to environmental conditions at the Property received by the Owner from any governmental authority, third party, or other person.
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, Texas provides constructive notice to all subsequent purchasers, lessees, and other persons acquiring an interest in the Property of the environmental conditions and restrictions described herein.
ARTICLE V — COMPLIANCE MONITORING AND REPORTING
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 terms and conditions of this Restrictive Covenant and the conditions of the Certificate of Completion issued for the Property under VCP-2517.
(b) In the event of an emergency or other circumstances in which TCEQ determines that immediate access is necessary to protect human health or the environment, TCEQ may access the Property without prior notice to the Owner, provided that TCEQ shall provide notice to the Owner as soon as practicable after such access.
(c) The right of access granted in this Section 5.01 includes the right to conduct visual inspections, to collect samples of soil, groundwater, surface water, or other environmental media, to inspect the condition of Engineered Caps and Covers, to inspect groundwater monitoring wells and associated equipment, and to review records maintained by the Owner relating to compliance with this Restrictive Covenant.
(d) The Owner shall not interfere with, obstruct, or impede TCEQ's exercise of its rights of access under this Section 5.01. The Owner shall, upon request by TCEQ, provide a designated representative to accompany TCEQ during inspections of the Property.
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 following information:
(i) A description of the current use or uses of the Property, including the identity and nature of business operations of all tenants, lessees, and occupants of the Property;
(ii) A description of the current condition of any Engineered Caps or Covers installed on the Property, including a summary of any maintenance, repair, or replacement activities conducted during the reporting period;
(iii) Confirmation that no Residential Use or other prohibited use has been made of the Property during the reporting period;
(iv) Confirmation that no groundwater wells have been installed on the Property in violation of Section 3.02 of this Restrictive Covenant;
(v) Confirmation that no soil disturbance at depths greater than ten (10) feet below ground surface has been undertaken on the Property without prior written approval from TCEQ;
(vi) A description of any conveyances, transfers, or changes in ownership of the Property or any portion thereof during the reporting period; and
(vii) A description of any events or conditions that may affect compliance with this Restrictive Covenant or the protectiveness of the remediation conducted at the Property.
(c) The compliance certification shall be signed by the Owner or by an authorized representative of the Owner and shall include a statement certifying, under penalty of law, that the information contained therein is true, accurate, and complete to the best of the signatory's knowledge and belief.
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 TCEQ in accordance with a TCEQ-approved groundwater monitoring plan.
(b) Such monitoring shall be conducted at the frequency, and from the monitoring wells, specified in the TCEQ-approved monitoring plan, and shall include sampling and analysis for the COCs identified in this Restrictive Covenant, or such other parameters as TCEQ may specify. All sampling, analysis, and reporting shall be conducted in accordance with applicable TCEQ quality assurance/quality control requirements.
(c) The Owner shall maintain all existing groundwater monitoring wells on the Property in good condition and repair, and shall not abandon, destroy, or decommission any monitoring well without the prior written approval of TCEQ.
ARTICLE VI — ENFORCEMENT
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 that performed the remediation of the Property under VCP-2517 and that bears ongoing environmental responsibility with respect to the Property, and as an express third-party beneficiary of this Restrictive Covenant; and
(c) Any Owner of the Property, with respect to other Owners, lessees, licensees, or users of portions of the Property, to the extent that such other Owners, lessees, licensees, or users are in violation of the terms of this Restrictive Covenant.
Enforcement of this Restrictive Covenant may be by any means available at law or in equity, including but not limited to actions for injunctive relief, specific performance, declaratory judgment, damages, or any other appropriate remedy. The parties acknowledge that a breach of this Restrictive Covenant could result in irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief and specific performance are therefore appropriate remedies for any actual or threatened breach.
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, remedy, or power under this Restrictive Covenant shall preclude any other or further exercise thereof or the exercise of any other right, remedy, or power. All rights and remedies provided herein are cumulative and are not exclusive of any other rights or remedies provided by law or in equity.
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, including any appeal therefrom.
ARTICLE VII — MODIFICATION AND TERMINATION
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 supplement to this Restrictive Covenant shall be in writing, shall be executed by the then-current Owner of the Property, and shall be recorded in the Official Public Records of Wharton County, Texas in the same manner as this Restrictive Covenant.
(c) A modification of this Restrictive Covenant may be sought by the Owner or by DEH if changed conditions warrant such modification, including but not limited to: (i) the completion of additional remediation at the Property to unrestricted-use standards, thereby eliminating the need for some or all of the restrictions contained herein; (ii) changes in applicable regulatory standards, including changes in TCEQ Tier 1 PCLs or federal MCLs, that render some or all of the restrictions contained herein unnecessary; or (iii) changes in site conditions or land-use patterns that warrant adjustment of the restrictions to ensure continued protectiveness.
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 residual contamination at the Property has attenuated through natural processes or further remediation to concentrations at or below TCEQ Tier 1 PCLs for unrestricted (residential) use in all environmental media; (ii) changes in applicable TCEQ regulatory standards, including Tier 1 PCLs, such that the restrictions contained herein are no longer required to ensure protectiveness for the current or intended land use; or (iii) other circumstances that TCEQ, in its sole discretion, determines justify the removal of the restrictions.
(c) Upon TCEQ's issuance of a written determination that the restrictions contained in this Restrictive Covenant are no longer necessary, the Owner may prepare, execute, and record a release or termination of this Restrictive Covenant in the Official Public Records of Wharton County, Texas. Such release or termination instrument shall include a reference to TCEQ's written determination and to the recording information of this Restrictive Covenant.
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 require additional remediation, corrective action, risk assessment, or other measures as TCEQ deems necessary to ensure the continued protection of human health and the environment. The Owner acknowledges that the Certificate of Completion is expressly conditioned upon the continued recording and maintenance of this Restrictive Covenant and compliance with all of its terms and conditions.
ARTICLE VIII — COVENANTS RUNNING WITH THE LAND
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 by deed, lease, license, devise, inheritance, judicial sale, tax sale, foreclosure, operation of law, or otherwise. This Restrictive Covenant shall inure to the benefit of, and shall be enforceable by, TCEQ and Dunmore Energy Holdings Ltd., and their respective successors and assigns, as express third-party beneficiaries hereof.
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 contained herein are intended to run with the title to the Property and to bind all persons who acquire any interest in the Property. The restrictions contained herein are intended to benefit the Property and the public by maintaining protections for human health and the environment that are necessary due to the presence of residual contamination at the Property.
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 application of such provision to any other person, entity, or circumstance. The remaining provisions of this Restrictive Covenant shall continue in full force and effect, and shall be construed and enforced as if the invalid, illegal, or unenforceable provision had not been included herein, to the fullest extent permitted by law.
ARTICLE IX — GENERAL PROVISIONS
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 the Southern District of Texas, Victoria Division.
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 electronic mail with confirmation of receipt, addressed to the parties at the following addresses (or such other addresses as any party may designate from time to time by written notice to the other parties):
To TCEQ:
Texas Commission on Environmental Quality Voluntary Cleanup Program Section Remediation Division P.O. Box 13087, MC 221 Austin, Texas 78711-3087
Attention: VCP Project Manager, VCP-2517
To Owner/Grantor:
Calera Properties Group LLC 2900 Woodlands Parkway, Suite 310 The Woodlands, Texas 77381
Attention: Rebecca Strand, Managing Member
To Dunmore Energy Holdings Ltd.:
Dunmore Energy Holdings Ltd. 4th Floor, Harbour Place 103 South Church Street George Town, Grand Cayman, KY1-1002 Cayman Islands
Attention: Gavin Rourke, Chairman & CEO
With a copy to:
Calderwood & Harkness LLP 1200 McKinney Street, Suite 4100 Houston, Texas 77010
Attention: Cynthia Ho
Notices shall be effective upon receipt if delivered personally or by overnight courier, upon the date of confirmed delivery if sent by certified or registered mail, or upon confirmed receipt if transmitted by electronic mail.
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
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 the subject matter hereof. Nothing in this Restrictive Covenant shall be construed to modify, amend, or supersede any other agreement between or among the parties, including without limitation any Site Access and Cost-Sharing Agreement, except to the extent expressly provided herein.
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
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 parties hereto and TCEQ.
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 referenced herein is amended, superseded, or replaced, references to such standard shall be deemed to refer to the successor standard, as determined by TCEQ.
EXECUTION
IN WITNESS WHEREOF, the Grantor and the Consenting Party have executed this Environmental Restrictive Covenant and Deed Restriction as of the date first written above.
GRANTOR:
CALERA PROPERTIES GROUP LLC, a Texas limited liability company
By: ________
Name: Rebecca Strand
Title: Managing Member
Date: ________
CONSENTING PARTY:
DUNMORE ENERGY HOLDINGS LTD., an exempted company incorporated under the laws of the Cayman Islands
By: ________
Name: Gavin Rourke
Title: Chairman & Chief Executive Officer
Date: ________
Note: The signature of Dunmore Energy Holdings Ltd. as Consenting Party signifies DEH's agreement to the terms and conditions of this Restrictive Covenant, DEH's acknowledgment of its ongoing environmental responsibilities with respect to the Property, and DEH's status as an express third-party beneficiary with enforcement rights as set forth in Article VI hereof.
NOTARIAL ACKNOWLEDGMENTS
Acknowledgment — Calera Properties Group LLC
STATE OF TEXAS
COUNTY OF _______________
Before me, the undersigned notary public, on this __ day of ___, 20_, personally appeared Rebecca Strand, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same in her capacity as Managing Member of Calera Properties Group LLC, a Texas limited liability company, and that by her signature on the instrument, the entity upon behalf of which the person acted, executed the instrument for the purposes and consideration therein expressed, and as the act and deed of said limited liability company.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this __ day of ___, 20_.
________________________________________
Notary Public, State of Texas
Printed Name: ________
My Commission Expires: ________
[NOTARY SEAL]
Acknowledgment — Dunmore Energy Holdings Ltd.