Environmental Restrictive Covenant - Drewry’s Brewery at 1408 Elwood

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Environmental Restrictive Covenant THIS ENVIRONMENTAL RESTRICTIVE COVENANT is made this ____ , 202_, by the Civil City of South Bend ("Owner"). day of WHEREAS: Owner is the fee owner of certain real estate in the County of St. Joseph, Indiana, which is located at 1408 Elwood Avenue in South Bend, and more particularly described in the attached Exhibit "A" ("Real Estate"), which is hereby incorporated and made a part hereof. The Real Estate was acquired by deed on May 26, 2022, and recorded on June 28, 2022, as Deed Record 2022-19007, in the Office of the Recorder of St. Joseph County, Indiana. The Real Estate consists of approximately 14.028-acres and is identified by the State by parcel identification #71-08-02-101-006.000-026. The Real Estate to which this Covenant applies is depicted on a map attached hereto as Exhibit "B". WHEREAS: A Comfort Letter, a copy of which .is attached hereto as Exhibit "C", was prepared and issued by the Indiana Department of Environmental Management ("the Department" or "IDEM") pursuant to the Indiana Brownfields Program's ("Program") recommendation at the request of the Owner to address the redevelopment potential of the Real Estate which is a brownfield site resulting from a release of hazardous substances and petroleum contamination relating to historical operations on the Real Estate, Program site number BFD #4000022 (the "Site"). WHEREAS: The Comfort Letter, as approved by the Department, provides that certain contaminants of concern ("COCs") were detected in soil and groundwater on the Real Estate but will not pose an unacceptable risk to human health at the detected concentrations provided that the land use restrictions contained herein are implemented and maintained to ensure the protection of public health, safety, or welfare, and the environment. The detected COCs in soil and groundwater are listed in Exhibit D, which is attached hereto and incorporated herein. WHEREAS: Soil and groundwater on the Real Estate were sampled for volatile organic compounds ("VOCs"), polycyclic aromatic hydrocarbons ("PAHs"), Resource Conservation and Recovery Act ("RCRA") 8 metals, and/or polychlorinated biphenyls ("PCBs"). Investigations detected levels of various constituents above applicable published levels established by IDEM in the Risk-based Closure Guide ("R2") (July 8, 2022). Several PAHs, arsenic, lead, and naphthalene were detected in soil above their respective residential soil published levels ("RSPLs"), commercial soil published levels ("CSPLs"), and/or excavation worker soil published levels ("XSPLs"). Various PAHs, naphthalene, 1-methylnaphthalene, 2-methylnaphthalene, PCB-1260, and trichloroethylene ("TCE") were detected in groundwater above their respective groundwater published levels ("GWPLs"). Soil and groundwater analytical results above applicable R2 published levels are summarized on Tables 1 & 2, attached hereto as Exhibit "D". A site map, attached hereto as "Exhibit E", depicts sample locations on the 8th. August 3