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Item C12 , . " BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY MEETING DATE: 10/18/00 10/19/00 DIVISION: COUNTY ADMINISTRATOR BULK ITEM: YES DEPARTMENT: AIRPORTS AGENDA ITEM WORDING: Acceptance of Quitclaim Deed conveying the E. Martello Battery Property from the Navy to Monroe County ITEM BACKGROUND: This property was obtained through the Base Realignment and Closure (BRAC) process. PREVIOUS RELEVANT BOCC ACTION: None on this item STAFF RECOMMENDATION: Approval TOTAL COST: N/A BUDGETED: N/A COST TO AIRPORT: None COST TO COUNTY: None REVENUE PRODUCING: No AMOUNT PER MONTHIYEAR: APPROVED BY: County Attorney X OMS/Purchasing N/A Risk Management - has been consulted AIRPORT DIRECTOR APPROVAL ?~ Peter J. Horton DOCUMENTATION: Included X To Follow Not Required AGENDA ITEM # 1- C)/L DISPOSITION: /bev APS QUITCLAIM DEED STATE OF FLORIDA ) COUNTY OF MONROE ) 1. THIS QUITCLAIM DEED, made this the 81'~. day of .B (); U.s T, 2000, between the UNITED STATES OF AMERICA, also referred to as the Government, acting by and through the Secretary of the Navy, Southern Division, Naval Facilities Engineering Command, under and pursuant to the powers and authority of Article 4, Section 3, Clause 2 of the Constitution of the United States, and pursuant to provisions of the Federal Property and Administrative Services Act of 1949, approved June 30, 1949, (63 Stat.377), as amended, and 49 U.S.C. Sections 47151 - 47153 (formally known as the Surplus Property Act of 1944 (58 Stat. 765), as amended), a delegation from the Administrator of General Services to the Secretary of Defense and subsequent delegation to the Secretary of the Navy, and regulations and orders promulgated thereunder, party of the first part, as GRANTOR, and Monroe County Board of County Commissioners, as GRANTEE, a public agency created, operated, and existing under and by virtue of the laws of the State of Florida, and designated by the State of Florida as the public agency to operate, maintain and develop public airports. II. WITNESSETH, for and in consideration of the assumption by the GRANTEE of all the obligations and the GRANTEE's covenant to abide by and agreement to take the Property subject to all terms, reservations, restrictions, conditions and covenants, all as set out in this Quitclaim Deed (hereinafter referred to as the Deed), the GRANTOR has released and quitclaimed to the GRANTEE, its successors and assigns, without warranty, express or implied, under and subject to the obligations, terms, reservations, restrictions, conditions, and covenants, all as hereinafter expressed and set out, all right, title, interest, claim, and demand which the GRANTOR has in and to that certain Property situated, lying and being in the County of Monroe, in the State of Florida, formerly known as East Martello Battery, Naval Air Station, Key West, Florida, and described in detail in EXHIBIT "A" hereof, for the use stated therein (hereinafter referred to as the "Property"), including a non-exclusive use ingress and egress easement to the Property over Government Road. III. WHEREAS, all the Property hereby conveyed has heretofore been declared surplus to the needs of the UNITED STATES OF AMERICA, is presently under the jurisdiction of the Secretary of the Navy, is available for disposal and its disposal has been heretofore authorized by the Secretary of the Navy, acting pursuant to the above referred to laws, regulations and orders. IV. TO HAVE AND TO HOLD the same, together with all and singular the appurtenances thereunto belonging or in anywise appertaining, and all the estate, right, title, interest or claim 1 whatsoever of the GRANTOR, either in law or in equity and subject to the terms, reservations, restrictions, covenants, and conditions set forth in this Deed, to the only proper use, benefit and behalf of the GRANTEE, its successors and assigns forever; and subject to all existing easements and rights-of-way for roads, highways, pipeline and public utilities, if any, whether of public record or not. V, NOW THEREFORE, by the acceptance of this Deed or any rights hereunder, the GRANTEE, for itself, its successors and assigns, agrees that the transfer of all the Property transferred by this Deed is accepted subject to the following terms, restrictions, reservations, covenants, and conditions set forth in subparagraphs (A) and (B) of this paragraph, which shall run with the land, provided that the Property, both real and personal, transferred hereby may be successively transferred only with the proviso that any such subsequent transferee assumes all of the obligations upon the GRANTEE by the provisions of this Deed with respect to the Property being transferred. A. That, except as provided in subparagraph (A) of numbered paragraph VI, the Property transferred by this Deed shall be used for public airport purposes for the use and benefit of the public, on fair and reasonable terms and without unjust discrimination and without grant or exercise of any exclusive right for use of the Airport within the meaning of the term "exclusive right" as used in subparagraph (C) of the numbered paragraph VI. As used in this Deed, the term "Airport" shall be deemed to include all land easements, buildings, facilities, structures improvements and equipment (both real and personal), including revenues and proceeds derived therefrom, used for public airport purposes. B. That, except as provided in subparagraph (A) of the numbered paragraph VI, the entire landing area, as defined in 49 U.S.C. Section 40102(a)(28), formally known as Section lOr of the Federal Aviation Act of 1958, as amended, and Federal Aviation Regulations pertaining thereto, and all structures, improvements, buildings, facilities and equipment in which this Deed transfers any interest, shall be maintained for the use and benefit of the public at all times in safe and serviceable condition, to assure its efficient operation and use, provided, however, that such maintenance shall be required as to structures, buildings, improvements, facilities and equipment only during the useful life thereof, as determined by the Secretary of the U.S. Department of Transportation, acting by and through the Administrator of the Federal Aviation Administration, or his/her successor in function, (hereinafter referred to as FAA). In the event materials are required to rehabilitate or repair certain of the aforementioned structures', improvements, facilities, buildings or equipment, they may be procured by demolition of other structures, improvements, buildings, facilities or equipment transferred hereby and located on the above land which have outlived their use as Airport Property in the opinion of the FAA. VI. FURTHER, by the acceptance of this Deed or any rights hereunder, the GRANTEE for itself, its successors and assigns, also assumes the obligation of, covenants to abide by and agree to, and this transfer is made subject to, the following terms, conditions, covenants, reservations and restrictions set forth in subparagraphs (A) to (T), inclusive, of this paragraph, which shall run with the land: Provided, that the Property transferred hereby may be successively transferred 2 only with the proviso that any such subsequent transferee assumes all the obligations imposed upon the GRANTEE by the provisions of this Deed. A. That no Property transferred by this Deed shall be used, leased, sold, salvaged, or disposed of by the GRANTEE for other than Airport purposes without the written consent of the FAA, which consent shall be granted only if the FAA determines that the Property can be used, leased, sold, salvaged, or disposed of for other than Airport purposes without materially and adversely affecting the development, improvement, operation, or maintenance of the Airport at which such Property is located pursuant to 49 U.S.C, 47151-47153, formally known as the Surplus Property Act of 1944, as amended. B. Property transferred for the development, improvement, operation or maintenance of the Airport shall be used and maintained for the use and benefit of the public on fair and reasonable terms, without unjust discrimination and without grant or exercise of any exclusive right for use of the Airport within the meaning of the term "exclusive right" as used in subparagraph C of this paragraph. In furtherance of this covenant (but without limiting its general applicability and effect) the GRANTEE specifically agrees (1) That it will keep the Airport available as an airport for public use on fair and reasonable terms and without unjust discrimination, to all types, kinds, and classes of aeronautical uses. Provided, that the GRANTEE may establish such fair, equal, and not unjustly discriminatory conditions to be met by all user of the Airport as may be necessary for the safe and efficient operation of the Airport; and provided, further, that the GRANTEE may prohibit or limit any given type, kind, or class of aeronautical use of the Airport if such action is necessary for the safe operation of the Airport to serve the civil aviation needs of the public; (2) That in its operation and the operation of facilities on the Airport, neither it nor any person or organization occupying space or facilities thereupon will discriminate against any person or class of persons by reason of race, color, creed; age, religion, sex, handicap, or national origin in the use of any of the facilities provided for the public on the Airport; (3) That in any agreement, contract, lease, or other arrangement under which a right or privilege at the Airport is granted to any person, firm or corporation to conduct or engage in any aeronautical activity for furnishing services to the public at the Airport, the GRANTEE will insert and enforce provisions requiring the contractor: (a) to furnish said service on a fair, equal, and not unjustly discriminatory basis to all users thereof, and (b) to charge fair, reasonable, and not unjustly discriminatory prices for each unit or service, provided, that the contractor may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers; (4) That the GRANTEE will not exercise or grant any right or privilege which would operate to prevent any person, firm, or corporation operating aircraft on the Airport from performing any services on its won aircraft with its own employees (including, but not limited to maintenance, repair, and fueling) that it may choose to perform; (5) That in the event the GRANTEE itself exercises any of the rights and privileges referred to in subsection (3) above, the services involved will be provided on the same conditions as would apply to the furnishing of such services by contractors or concessionaires of the GRANTEE under the provisions of such subsection (3) of this paragraph VII.B. C. The GRANTEE will not grant to, or permit any exclusive right, which is forbidden by FAA requirements, and as described in 49 V.S.C. Section 40 103 (e), formally known as 3 Section 308 of the Federal Aviation Act of 1958, as amended, and 49 U.S.C. Section 471 52(3)(A) & (B), for the use of the Airport, at which the property described herein is located, by any person or persons to the exclusion of others in the same class and will otherwise comply with all applicable laws. In furtherance of this covenant (but without limiting its general applicability and effect), the GRANTEE specifically agrees that, unless authorized by the FAA, it will not, either directly or indirectly, grant or permit any person, firm or corporation the exclusive right to conduct any aeronautical activity on the Airport including but not limited to, charter flights, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales, and services, sale of aviation petroleum products whether or not conducted in conjunction with other aeronautical activity, repair and maintenance of aircraft, sale of aircraft parts, and any other activities which because of their direct relationship to the operation of aircraft can be regarded as an aeronautical activity. The GRANTEE further agrees that it will terminate as soon as possible and no later than the earliest renewal, cancellation, or expiration date applicable thereto, any exclusive right existing at any Airport owned or controlled by the GRANTEE or hereafter acquired and that, thereafter, no such right shall be granted. However, nothing contained herein shall be construed to prohibit the granting or exercise of an exclusive right for the furnishing of non-aviation products and supplies or any services of a non-aeronautical nature or to obligate the GRANTEE to furnish any particular non-aeronautical service at the Airport. D. The GRANTEE shall, insofar as it is within its powers and to the extent reasonable, adequately clear and protect the Airport by removing, lowering, relocating, marking, lighting, or otherwise mitigating existing Airport hazards and by preventing the establishment or creation of future Airport hazards. The GRANTEE will, either by the acquisition and retention of easements or other interests in or rights for the use of land or airspace or by the adoption and enforcement of zoning regulations, or by any other reasonable means, prevent the construction, erection, . alteration, or growth of any structure, tree, or other object in areas of the RPZ which would constitute an obstruction to air navigation according to the criteria or standards prescribed in Part 77 of the Federal Aviation Regulations [14 CFR Part 77], and, as applicable, according to the approved Airport Layout Plan. In addition, the GRANTEE will not erect or permit the erection of any permanent structure or facility which would interfere materially with the use, operation of the Airport in or on any portion of a runway approach area in which the GRANTEE has control over, or has acquired, or hereafter acquires, property interests permitting the GRANTEE to so control, the use made of the surface of the land or airspace or by the adoption and enforcement of zoning regulations or by any other reasonable means take action to restrict the use of the land adjacent to or in the immediate vicinity of the Airport to activities and purposes compatible with normal Airport operations including landing and takeoff of aircraft. E. The GRANTEE will operate and maintain in a safe and serviceable condition, as deemed reasonably necessary by the FAA, the Airport and all facilities thereon and connected therewith which are necessary to service the aeronautical users of the Airport other than facilities owned or controlled by the United States and will not permit any activity thereon which would interfere with its use for Airport purposes: Provided, that nothing contained herein shall be construed to require that the Airport be operated for aeronautical uses during temporary periods when hurricanes, flood, or other climatic conditions interfere with such operation and 4 maintenance, nor shall anything herein be construed to require the repair, restoration or replacement of any structure or facility which is substantially damaged or destroyed due to an act of God or other condition or circumstance beyond the control of the GRANTEE. F. That the GRANTEE will make available all facilities.ofthe Airport at which the Property described herein is located or developed, and all those usable for the landing and taking off of aircraft, to the United States at all times, without charge, for use by government aircraft in common with other aircraft, except that if the use by government aircraft in common with other aircraft is substantial, a reasonable share, proportional to such use, of the cost of operating and maintaining facilities so used, may be charged. Unless otherwise determined by the FAA, or otherwise agreed to by the GRANTEE and the Government, substantial use of the Airport by Government aircraft will be considered to exist (1) when operations of such aircraft are in excess of those which, in the opinion of the FAA, would unduly interfere with use of the landing area by other authorized aircraft or (2) during any calendar month that either (a) five (5) or more Government aircraft are regularly based at the Airport or on land adjacent thereto, or (b) the total number of movements (counting each landing as a movement and each take-off as a movement) of Government aircraft is 300 or more, or (c) the gross accumulative weight of Government aircraft using the Airport (the total movements of such Government aircraft multiplied by the gross certified weight of such government aircraft) is in excess of five million pounds. G, That during any national emergency declared by the President of the UNITED STATES OF AMERICA or the Congress thereof, including any existing national emergency, the Government shall have the right to make exclusive or non-exclusive use and have exclusive or non-exclusive control and possession, without charge, of the Airport, or of such portion thereof as it may desire, provided, however, that the government shall be responsible for the entire cost of maintaining such part of the airport as it may use exclusively, or over which it may have exclusive possession and control, and shall be obligated to contribute a reasonable share, commensurate with the use made by it, of the cost of maintenance of such property as it may use non-exclusively or over which it may have non-exclusive control and possession: Provided, further, that the government shall pay a fair rental as just compensation for its use, control, or possession, exclusively or non-exclusively, of any improvement to the Airport made without United States aid and never owned by the United States. H. The GRANTEE does hereby release the government, and will take whatever action may be required by the FAA to assure the complete release of the government from any and all liability the government may be under for restoration or other damages under any lease or other agreement covering the use by the United States of the Airport, or any part thereof, owned, controlled, or operated by the GRANTEE upon which, adjacent to which, or in connection with which, the Property was located or used: Provided, that this release shall not be construed as depriving the GRANTEE of any right it may otherwise have to receive reimbursement under Section 17 of the Federal Airport Act [49 App. U.S.C.A. Section 1116] for the necessary rehabilitation or repair of. the Airport heretofore or hereafter substantially damaged by the Government. 5 I. The GRANTEE does hereby release, save, defend, indemnify and hold harmless the Government, its officers, agents, and employees, for and from any and all liabilities, losses, claims, expenses, suits, fines, penalties, judgments, demands or actions, and costs (including but not limited to consulting, engineering, clean-up, disposal or restoration costs, investigator's fees, attorney fees) and damages (including but not limited to personal injury, death, and Property damage) directly or indirectly arising out of, caused by, related to, resulting from or in any way predicated upon, in whole or in part, the possession, use or occupancy by the GRANTEE, (including the GRANTEE's officers, agents, employees, tenants, customers, or tenant customers, third persons, or invitees), of the Property, both real and personal, transferred by this Deed., or attributable or incident to the physical condition or state of repair of the Property transferred by this Deed, or any activities conducted or services furnished in connection with or pursuant to the Property transferred by this Deed. J. That whenever so requested by the FAA, GRANTEE will furnish without cost to the Government, for construction, operation and maintenance of facilities for air traffic control activities, or weather reporting activities, or communication activities related to air traffic control, such areas of land or water, or estate therein, or rights in buildings and/or facilities of the GRANTEE located on the airport or at which the Property described herein is located, as the FAA may consider necessary or desirable for use and/or construction at government expense of space or facilities for such purposes. The GRANTEE will make available such areas or any portion thereof for the purposes provided herein within four (4) months after receipt of written request from the FAA, if such are or will be available. K. The GRANTEE will: (1) furnish the FAA with annual or special Airport financial and operational reports as may be reasonably requested using either forms furnished by the FAA or in such manner as it elects so long as the essential data are furnished, and (2) upon reasonable' request by the FAA, make available for inspection by any duly authorized representative of the FAA the Property described herein, and all Property records and documents affecting the Property, including deeds, leases, operation and use agreements, regulations, and other instruments, and will furnish to the FAA a true copy of any such document which may be reasonably requested. L. The GRANTEE will not enter into any transaction which would operate to deprive it of any of the rights and powers necessary to perform or comply with all the terms, covenants, conditions, restrictions, and reservations set forth in this Deed unless by such transaction the obligation to perform or comply with all such terms, covenants, conditions, restrictions, and reservations is assumed by another public agency found by the FAA to be eligible as a public agency, as the term "public agency" is defined in 49 V.S.C. Section 47102(15), to assume such obligation and have power, authority, and financial resources to carry out all such obligations. If an arrangement is made for management or operation of the Property by any agency or person other than the GRANTEE, the GRANTEE will reserve sufficient rights and authority to insure that the Property will be operated and maintained in accordance with the terms, covenants, conditions, reservations, and restrictions in this Deed, any applicable Federal statutes, and Federal Regulations. 6 M. That the GRANTEE will keep up to date at all times an Airport Layout Plan of the Airport at which the Property described herein is located showing: (a) the boundaries of the Airport and all proposed additions thereto, together with the boundaries of all off site areas o\Wed or controlled by the GRANTEE for Airport purposes and proposed additions thereto; (b) the location and nature of all existing and proposed Airport facilities and structures (such as runways, taxiways, aprons, terminal buildings, hangars, and roads), including all proposed extensions and reductions of existing Airport facilities; and (c) the location of all existing and proposed nonaviation areas and of all existing improvements thereon and uses made thereof, Such Airport Layout Plan and each amendment, revision, or modification thereof, shall be subject to the approval of the FAA, which approval shall be evidenced by the signature of a duly authorized representative of the FAA on the face of the Airport Layout Plan. The GRANTEE will not make or permit the making of any changes or alterations in the Airport or in any of its facilities which are not in conformity with the Airport Layout Plan as so approved by the FAA, and which might, in the opinion of the FAA, adversely affect the safety, utility, or efficiency of the Airport. N. That if at any time it is determined by the FAA that there is any outstanding right or claim of right in or to the Airport or Property, described herein, the existence of which creates an undue risk of interference with the operation of the Airport or the performance or compliance with the terms, covenants, conditions, restrictions and reservations set forth herein, the GRANTEE will acquire, extinguish, or modify such right or claim of right in a manner acceptable to the FAA. O. The terms, covenants, conditions, restrictions, and reservations set forth in this Deed are a binding servitude on the Property herein conveyed and shall be deemed to run with the land in perpetuity. The terms, reservations, restrictions, covenants, and conditions contained in this . Deed shall be inserted by the GRANTEE verbatim or by express reference in any deed or other legal instrument by which it divests itself of either the fee simple title or any other lesser estate in the Property or any portion thereof. P. The operation of the Airport shall be subject to such regulations as may be prescribed by the FAA from time to time, and the GRANTEE, its successors and assigns, shall comply with all pertinent laws, ordinances, rules, orders, guidelines, or other applicable regulations and shall hold the GRANTOR hannless from any and all liabilities or penalties which may be imposed by reason of any asserted violation thereof by the GRANTEE. All rights and powers reserved to the GRANTOR or the FAA, and all references in this Deed to GRANTOR or FAA shall include successors in function. The GRANTOR may agree in writing, after obtaining the concurrence of the FAA, to waive, eliminate, or reduce the obligations contained in this Deed. Q. That in the event that any of the aforesaid terms, conditions, covenants, reservations, or restrictions are not met, observed, or complied with by the GRANTEE or any subsequent transferee, successor or assign, whether caused by the legal inability of said GRANTEE or any subsequent transferee, successor or assign, to perform any of the obligations herein set out, or otherwise, the title, right of possession and all other rights transferred by this Deed to the 7 GRANTEE, or any portion thereof, shall at the option of the Government, acting by and through the FAA, revert to the Government in its then existing condition sixty (60) days following the date upon which demand to this effect is made in writing by the FAA. If within said sixty (60) days such default or violation shall have been cured and all such terms, conditions, reservations and restrictions shall have been met, observed, and complied with, or, if within said sixty (60) days the GRANTEE shall have commenced the actions necessary to bring the GRANTEE into compliance with all such terms, conditions, covenants, reservations and restrictions of this Deed in accordance with a compliance schedule approved by the FAA, then said reversion shall not occur and title, right of possession, and all other rights transferred hereby, except such, if any, as shall have previously terminated or reverted, shall remain vested in the GRANTEE, its transferees, successors and assigns, This option of reversion shall be a continuing one, and may be exercised by Government any time the FAA determines the aforesaid terms, covenants, conditions, reservations, or restrictions are not met, observed or complied with by the GRANTEE or any subsequent transferee, successor or assignee. R. All local taxes on aviation fuel generated at the Airport (except taxes in effect on December 30, 1987) and all the revenues generated by the Airport shall be used for exclusively for the capital or operating costs of i. the Airport; ii. the local airport system; or iii. any other local facility that is owned or operated by the GRANTEE and that is directly and substantially related to the air transportation of passengers or property; PROVIDED that the aforesaid limitations on the use of airport revenue shall not apply if a provision enacted not later than September 2, 1982, in a law controlling financing by the GRANTEE, or a covenant or assurance in a debt obligation issued not later than September 2, 1982, by the GRANTEE, provides that the revenues, including local taxes on aviation fuel at the' Airport, from any of the facilities of the GRANTEE, including the airport, be used to support not only the airport but also the general debt obligations or other facilities of the GRANTEE: PROVIDED FURTHER that, the aforesaid limitation shall not be construed to prevent the use of a State tax on aviation fuel to support a State aviation program or the use of airport revenue on or off the airport for a noise mitigation program. S. That if the construction as covenants of any of the reservations and restrictions recited in this Deed as covenants or the application of the same as covenants in any particular instance is held invalid, or the particular reservations and restrictions recited in this Deed as covenants or the application of the same as covenants in any particular instance is held invalid, then the particular reservations or restrictions in question shall be construed instead merely as conditions upon the breach of which Government, acting by and through the FAA, may exercise its option to cause the title, interest, right of possession, and all other rights transferred to GRANTEE, or any portion thereof, to revert to it, and the application of such reservations or restrictions as covenants in any other instance and the construction of the remainder of such reservations and restrictions as covenants shall not be affected thereby. T. The failure of the Government to insist in anyone or more instances upon complete performance of any of the terms, covenants, conditions, reservations, or restrictions in this Deed 8 shall not be construed as a waiver or a relinquishment of the future performance of any such terms, covenants, conditions, reservations, or restrictions, and the obligations of the GRANTEE, its successors and assigns, with respect to such future performance shall continue in full force and effect. VII. AND IT IS FURTHER AGREED AND UNDERSTOOD by and between the parties hereto and the GRANTEE, by its acceptance of this Deed, acknowledges its understanding of the agreement, and agrees that, as part of the consideration for this Deed, the GRANTEE covenants and agrees for itself, its successors and assigns, that: (1) The program for or in connection with which this Deed is made will be conducted in compliance with, and the GRANTEE, its successors and assigns, will comply with all requirements imposed by or pursuant to the regulations of the U.S. Department of Transportation, the FAA, and 49 CFR Part 21, and any subsequent amendments thereto, issued under the provisions of Title VI of the Civil Rights Act of 1964, as amended; (2) This covenant shall be subject in all respects to the provisions of said regulations; (3) the GRANTEE, its successors and assigns, will promptly take and continue to take such action as may be necessary to effectuate this covenant; (4) The Government, acting by and through the FAA, shall have the right to seek judicial enforcement of this covenant; (5) The GRANTEE, its successors and assigns, will: (a) obtain from any person (including any legal entity) who, through contractual or other arrangements with the GRANTEE, its successors and assigns, is authorized to provide services or benefits under said program, a written agreement pursuant to which such other person shall, with respect to the services or benefits which he is authorized to provide, undertake for himself the same obligations as those imposed upon the GRANTEE, its successors and assigns, by this covenant, and (b) furnish the original of such agreement to the FAA, upon FAA request therefore; and, (6) This covenant shall run with the land hereby conveyed, and shall in any event, without regard to technical classification or designation, legal or otherwise, be binding to the fullest extent permitted by law and equity for the benefit of, and in favor of the Government and enforceable by the Government, acting by and through the FAA, against the GRANTEE, its successors, and assigns. VIII. A Finding of Suitability to Transfer (FOST) is attached as EXHIBIT "B" to the Deed; an Environmental Baseline Survey (EBS) report is referenced in the FOST; the FOST and EBS reference environmental conditions on the Property and on other Property not subject to this Deed. Those restrictions and environmental conditions described in the FOST and EBS which are applicable to the Property are contained in this Deed. The FOST sets forth the basis for the GRANTOR's determination that the Property is suitable for transfer. The GRANTEE is hereby made aware of the notifications contained in the EBS and the FOST. The property contains improvements that, due to their age, are likely to have been painted with lead based paint. A Lead Based Paint Disclosure Statement is provided as EXHIBIT "e" to this Deed. GRANTEE hereby acknowledges that non-friable asbestos containing materials (ACM) has been found on the Property. Non-friable ACM is present in the vinyl floor tile, tile mastic, 9 and a vent pipe flashing material in the bunker, GRANTEE shall manage ACM in accordance with applicable laws and regulations, NOTICE OF HAZARDOUS SUBSTANCE OR PETROLEUM PRODUCT STORED FOR MORE THAN ONE YEAR OR MORE. KNOWN TO HA VE BEEN RELEASED OR DISPOSED OF. The information contained in this notice is required under the authority of Section l20(h)(3) of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA or "Superfund") 42 U.S.C. Section 9620 (h)(3), Based on past use of the facility as a Shore Defense Facility and Mobile Home Community, it is expected that small amounts of hazardous substances were stored on the Property for one year or more. A site inspection performed in 1998, which included surface soil and groundwater sampling, did not detect any concentrations of hazardous substances or petroleum products or their derivatives above Florida Department of Environmental Protection (FDEP) action levels requiring any removal or remedial action. FDEP and the U. S. Environmental Protection Agency (EPA) have concurred with this determination. GRANTOR covenants and warrants that any response action or corrective action found to be necessary after the date of transfer on those areas where no hazardous substance and no petroleum product or their derivatives were stored for one year or more, released or disposed of shall be conducted by the United States. GRANTEE covenants that the GRANTOR its officers, agents, employees, contractors and subcontractors, in accordance with section 120(h) of the Comprehensive Environmental Response, Compensation and Liability Act, shall have access to the property in any case in which remedial action or corrective action is found to be necessary after the date of the conveyance of the Property. GRANTEE agrees to comply with activities of the GRANTOR in furtherance of these covenants and will take no action to interfere with future necessary remedial and investigative actions of the GRANTOR. The GRANTOR and the GRANTEE agree to cooperate in good faith to minimize any conflict between necessary environmental investigation and remediation activities and operations of GRANTEE, its successors and assigns, and of any Lessee or any Sublessee of the Property. Any inspection, survey, investigation, or other response or remedial action will to the extent practicable be coordinated with representatives designated by GRANTEE or its successors and assigns, GRANTEE acknowledges that East Martello Battery Bunker, located on the Property, is eligible for placement on the National Registry of Historic Places and is subject to The Standard Architectual and Archeological Preservation Covenant for Transferred Property as approved by the Florida State Advisory Council on Historic Preservation. The Preservation Covenant is included as EXHIBIT "D" to this deed, GRANTOR recognizes its obligations under section 330 of the National Defense Authorization Act of 1993, as amended (Pub. L. No. 102-484). 10 LIST OF EXHIBITS: The following exhibits are attached hereto and made a part of this deed: EXHIBIT A PROPERTY Description EXHIBIT B Finding of Suitability to Transfer EXHIBIT C Lead-Based Paint Hazard Disclosure & Acknowledgement Form EXHIBIT D Preservation Covenant IN WITNESS WHEREOF, GRANTOR has caused its name to be signed to these presents by an authorized Real Estate Contracting Officer on the day first above written. UNITED STATES OF AMERICA, acting by and through the Department ofth avy, BY: Real Estate Contrac . ra;;pJ:' a ~. J/1I2-1; c-r, ,'<?- Printed Name: I ~TNESSES: . CiLc ,.~<ttC ~ let; 1/ U (signature) -- r;.'" r-\ CI II p'!'te - ~-\ , I I (please print or type name) ~~-:~~~~~ (signature) L ~'-a. ~.- ~ ~'1'\ \.01. "'- -::. DY\ (please print or type name) 11 STATE OF SOUTH CAROLINA COUNTY OF CHARLESTON PERSONALLY appeared before me,~lOrz.;nL.~~~ a Notary Public in and for said County and State, the within named eRn e J ~ (,)/) J 12. , to me well known and known to be the person described in and who executed the foregoing Quitclaim Deed on behalf of the UNITED STATES OF AMERICA, and acknowledged that ~, with authority so to do, signed and delivered the foregoing Quitclaim Deed on the day and year therein mentioned as the free act and of the UNITED STATES OF AMERICA. CONCU~~ \ Ptr--, T I ,J~ ~ding f1icer Naval Air Station, Key West, Florida 12 -- ------- .'--- -...... ...__ "'_.___~;;;;I.&._OJ.I;;;I ACCEPTANCE The Momoe County Board of County Commissioners does hereby accept this Quitclaim Deed and by acceptance agrees to all of the terms and conditions thereof Executed this _ day of , 2000. By: Title: (OFFICIAL SEAL) Attest Title 13 CERTIFICATE OF GRANTEE'S ATTORNEY I, , acting as attorney for herein referred to as the "GRANTEE," do hereby certify: That I have examined the foregoing Quitclaim Deed and the proceedings taken by the GRANTEE relating thereto, and find that the acceptance thereof by the GRANTEE has been duly authorized and that the execution thereof is in all respects due and proper and in accordance with the laws of the State of Florida, and further that, in my opinion, the Quitclaim Deed constitutes a legal and binding compliance obligation of the GRANTEE in accordance with the tenns thereof, Dated at this day of , 2000. /s/ Title 14 rm . f'lii I 'f' I!r If II W. ! t I 'f i"l I f I 1ft II I i 8 IIr . h'll I ,il If! lfl .1 1!1 -::'=~;iIIWllli'ii (1111. m~l;liliwlmmi :~:. .j.ll. '!'I. · .'....~if~..f~. "'i'. 1;1..fl Illilr( Ilfi~. .SlUI.I.~'i'i"II~rI5111 I '1"1', 'I ;J .. . If. ~hr lil' Ir-"II '~5. . i, ij'?fll~,!i!1 iI!l~h:!I;11 r!iI;~;ii~~!Ji! 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" ~~'!.l:., II:. ijh'ii-!-.' " " ". l ~ ;~ j' II.. ~ '10 , ~E~,wa =~:r.f!!!::::~ IliilH I ~i;f 'ji i~n~lr'W{1J. '-!.lfH f Iii 'I r I ' hiI' I f II ,: Ii ~ -., '~n-.I f..H &111 != 1fi Hiii(jiijif{i II ~ ,II I I Ii -I r I ;' i ili 5: i i !, ,;.~ -f- :...., Ii, - . i ~ ;?- t>- o-\- ~ ~II II il~'1 i ~ hIli ~ 0 + C> . 'oa/I, A , ~.. , ) ) ...- 11 ( 0 . )' ;. 1 '" ~ )' ~ !. G~ ) ...---/ ~ / ...- .( .1 ,/ i r- ~ . g : I ~ ! (5 r Z I J: ~ i\ I, I; '--:.\.\- - ';.~ :~~;;;S:a; i _ ....zz............"" z i ~:;ll~~;:;llll if rT1 ~~~~~~~.S t _ "2l1:'S~IIl11jJ l> j,U..... ~ ,.., ~ :2':lI:~:m~ ! ~.~,:;~~~~.... ~-r- KEY WEST ",Z\li 00. . ". ~.) ;;;-;;;.-... '~'"' N 01'.1'" ..,t.'~' INlt_TIONAl C.....U1~ .0..... ~~::UI~ $888:> ~~~~6 ~~~~; 2 :lJ < '" _""'t' /(/ .' ~~~~~ ~ ,.., "'-I.' , , 0 !ily n -.f ~lf' ~ '2 ~ ,. r ~~:!~! ~~'!.~.! .;.~....., ;;:.il ZZVl"'g ~!~~A ~~. ',. $~;;81 .... ~ - . ~ \ 1\ \ ~'I ~ I \ r~.'- II '\ " i I I Ii I . , I i Ii I n ! Ii ! I/---! I _T ------- -----~ ~:.. " ./' ~, /- ....--. , i i i'l I 'I !i ~ ~...<:;:;~ i ~ ~\ .I. . IIn; ~ t:; . 0" J~ l!: " . ... aJjSnJ f r % _&r~ .:: "--8 RIll ~~'n ~~i =~,;. ~ :~: l!: . i i ~;~~ f ...;e'i~ ~. . ". ir !ii !5S3i : I i rT~l~J ~] ,RtNl[W) OR. ! . ~. FINDING OF SIDTABILITY TO TRANSFER EAST MARTELLO BATTERY KEY WEST, FLORIDA 1.0 Purpose This Finding of Suitability to Transfer (FOST) documents my determiJJation, as the respo~ible-~ ~_ D~partment of Defense (Do D) component officiaL that 13.96 acres ofihe real property known as East Martello Battery, Naval Air Station Key West (Subject Property), is environmentally suitable for deed transfer to the City of Key West Navy Properties Local Reuse Authority (NPLRA) for the authorized use as wetlands preservation and passive open space recreation under the terms of the conveyance from the Department ofInterior (DOl) and in accordance with the NPLRA Redevelopment Plan. The remaining 26.49 acres are suitable for transfer to Monroe County under a Department of Transportation (DOT), Federal Aviation Authority Public Benefit Conveyance for authorized use as a runway protection zone and obstruction-free zone. This decision is based upon a review of information contained in the attached Environmental Baseline Survey (BBS) and the Reuse PIan developed by the NPLRA. Factors leading to this decision and other pertinent information related to property transfer requirements are stated below. 2.0 Property Description The Subject Property is located in Monroe County, Key West, Florida within the boundaries of the City of Key West as more particularly described in the attached EBS. Subject Property is fenced and comprises approximately 40.45 acres and is bounded by Key West International Airport on the east, residential neighborhoods to the north and northwest, and wetlands to the west and south. 3.0 Past Use and Proposed Reuse Subject Property was acquired by the United States Army during the early 1940s. It was used for shore defense d111iQg World War n. The land was transferred to the Navy in 1950. The Navy developed the parcel into a mobile home community. The trailer project was deactivated in 1956. All trailers were removed from the site along with any support buildings. Monroe County Civil Defense used the property under license from the Navy for a civil defense admini!'ltrative commann post from 1985 until 1992. The approved reuse for the Subject Property is as stated in Section 1.0 of this FOST. 4.0 Environmental Condition All available information concerning the past storage, release, or disposal of any hazardous substances and/or petroleum products on the Subject Property as collected through record searches, available aerial photographs, personnel interviews, and on-site visual inspections conducted is contained in the attached EBS. A hurricane swept over Key West on 25 September 1998; however, the overall environmental condition of the property remains unchanged, The Page 1 of 5 J- !~/ - ) ~;-- -" FINDING OF SUITABILITY TO TRANSFER EAST MARTELLO BATTERY KEY WEST, FLORIDA following paragraphs summarize the EBS findings and corresponding DoD condition of property classifications assigned to the Subject Property. A. Hazardous Substances Contamination Based on past use of the fucility as a shore defense fucility and mobile home community, it is expected that small amounts of hazardous substances were stored on the Subject Property for one year or more, although no records were found to indicate the type or amount of substance which may have been present. The Navy conducted a Site Inspection (SI) of the Subject Property in 1998. The surface soil and groundwater were sampled for volatile organic compounds (VOCs), semivolatile organic compounds (SVOCs), inorganics, petroleum, and metals. No VOCs, SVOCs, inorganics, petroleum, or metals were detected in the surface soils above Florida Department of Environmental Protection (FDEP) action levels. Three groundwater monitoring wells were installed during the SI. No VOCs, SVOCs, or inorganics were detected in excess of their screening values in the groundwater. Iron, lead, and zinc were the only chemicals detected in the well samples. Based upon the information contained in the attached EBS, Subject Property has been classified in accordance with DoD environmental condition of property guidance as Category 3/Light Green (areas where a release of hazardous substances or petroleum products or their derivatives has occurred, but at concentrations that do not require removal or remedial action.) B. Petroleum Contamination No underground or aboveground storage tanks are known to have been associated with the Subject Property. No other potential petroleum contaminated areas are suspected C. Other Environmental Aspects 1. Asbestos-Containing Material (ACM) Non-friable ACM is present in the vinyl floor tile, tile mastic, and a vent pipe flashing material in the bunker. 2. Lead-Based Paint (LBP) Due to the age of the structure, painted surfaces in or on the bunker are presumed to be LBP. This structure is not considered target housing as defined by 24 CFR 35 or 40 CFR 745. A Lead-Based Paint Hazard Notice is provided as Attachment 1 to this FOST. Page 2 of 5 FINDING OF SillTABll.ITY TO TRANSFER EAST MARTELLO BATTERY KEY WEST, FLORIDA 3. Polychlorinated Biphenyls (PCBs) Electricity is provided by the City of Key West. No electrical transf~rme~ lo_cat~d _ - on and arowid the Subject PropertY- are known to coiitain -PCBS.- 4. Radon Radon sampling was not performed on the Subject Property. Radon is not expected to be a concern based on results of other sampling conducted in Key We~. 5.0 Reauirements Applicable to Transfer A. National Environmental Policy Act (NEP A) An Draft Environmental Assessment (EA) for the Subject Property, has been prepared in accordance with National Environmental Policy Act requirements. The EA addresses environmental impacts associated with the transfer and subsequent reuse of the Subject Property. A Finding of No Significant Impact (FONSI) was signed in February 2000. B. Hazardous Substance Notice In accordance with Section 120(h)(3)(A) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the deed transferring the Subject Property . will provide notification, based upon a complete search of agency files, ifhazardous substances were stored for one year or more, released, or disposed of on the Subject Property. No records were found to indicate what substances may have been stored or used on the Subject Property. No records were found to indicate any release or disposal of hazardous substances on the Subject Property. It should be noted that the Subject Property lies directly at the end ofa runway of Key West International Airport and is in the flight path of both aircraft takeoffs and landings. Many of the low levels of substances found during the Site Investigation (SI) are polynuclear aromatic hydrocarbons (pAHs), which are a result of jet and diesel turbo engine emissions. Additionally the sampling results from the SI would indicate none of the hazardous substances were found in excess of the reportable thresholds of 40 CPR 373. C. CERCLA Covenants In accordance with CERCLA Section 120(h)(3)(A)(ii)(I), the deed transferring the subject property shall contain a covenant warranting that all remedial action necessary to protect human health and the environment with respect to any hazardous substance remaining on the property has been taken before the date of transfer. Page 3 of 5 FINDING OF SUITABILITY TO TRANSFER EAST MARTELLO BATTERY KEY WEST, FLORIDA In accordance with CERCLA Section 120(h)(3)(A)(ii)(Il), the deed transferring the subject property shall contain a covenant warranting that any additional remediat action - fOlmd to be necessary after the <lite of transfer Shall be conducted-by the United States. D. CERCLA Access Clause In accordance with CERCLA 120(h)(3)(A)(fu), the deed transferring the subject property shall contain a clause granting the United States access to the property in any case in which a response action or corrective action is found to be necessary after such date at such property, or access is necessary to carry out a response action or corrective action on adjoining property. The right to enter to be set forth shall include the right to conducts tests, investigations, five-year reviews, surveys, and, where necessary, drilling, test pitting, boring, and other similar activities. Such right shall also include the right to construct, operate, maintain, or undertake any other response action or corrective action as required or necessary, including but not limited to, monitoring wells, pumping wells, and treatment :facilities. . These access rights are in addition to those granted to federal, state, and local authorities under applicable environmental regulations. E. Land and/or Groundwater Restrictions There are no land or groundwater restrictions associated with the approved reuses of the Subject Property for wetlands conservation, passive recreation, airport security, and runway protection. The NPLRA has proposed zoning the area for public/private services, and two conservation districts and has received conveyance approval from both DOl and DOT based on the proposed reuse of the property. F. Indemnification The federal government shall hold harmless, defend, and indemnify the NPLRA and any future successor, assignee, transferee, lender, or lessee of the Subject Property from any suit, demand, cost, or liability arising out of any claim for personal injury or property damage than may result from, or be predicated upon, the release or threatened release of any hazardous substance, petroleum product, petroleum derivative, pollutant, or contaminant result from Department of Defense activities on the property subject to the conditions specified in, and to the extent authorized by, Section 330 of Public Law 102- 484 as amended by Section 1002 of Public Law 103-160. Page 4 of 5 FINDING OF SUITABILITY TO TRANSFER EAST MARTELLO BATTERY KEY WEST, FLORIDA G. Environmental Compliance AgreementlPermitslOrders There are no environmental compliance agreement/permits/orders associated with the Subject Property, H. Notification to Regulatory AgencieslPublic In accordance with DoD guidance, the U.S. EP A, and FDEP have been advised of the proposed transfer of the Subject Property and draft copies of the EBS and FOST have been provided to those agencies for review. The EBS and FOST were also made available for public review from 17 April through 1 May 2000. All regulatory agency and public comments received have been considered and incorporated as deemed appropriate. Any unresolved comments and the Navy's responses thereto are included as Attachment 2 to the FOST. Copies of all transfer documentation provided to the NPLRA will be made available to the U.S. EP A and FDEP representatives upon request after execution of the same. 6.0 Suitability Determination NOW, THEREFORE, based upon review of the information contained in the attached EBS as well as the NPLRA's Reuse Plan, I have determined that the Subject Parcel is presently suitable for transfer to the NPLRA for the intended purpose. b ( ~!, t D b (Date T.F. ERSSON, CDR, USN;CEC) V ~ tJ Acting Commander Southern Division Naval Facilities Engineering Command Charleston, SC Page 5 of 5 LEAD-BASED PAINT HAZARD DISCLOSURE AND ACKNOWLEDGEMENT FORM (NON-RESIDENTIAL STRUCTURES) LEAD WARNING STATEMENT YOU ARE ADVISED THAT BUILDINGS CONSTRUCTED PRIOR TO 1978 MAY PRESENT EXPOSURE TO LEAD FROM LEAD-BASED PAINT THAT MAY PLACE YOUNG CHILDREN AT RISK OF DEVELOPING LEAD POISONING. LEAD POISONING IN YOUNG CHILDREN MAY PRODUCE PERMANENT NEUROLOGICAL DAMAGE. YOU ARE FURTHER ADVISED THAT LEAD POISONING ALSO POSES A PARTICULAR RISK TO PREGNANT WOMEN. WORKERS MAY ALSO SUFFER ADVERSE HEALTH EFFECTS FROM LEAD DUST AND FUME EXPOSURE ACKNOWLEDGEMENT I acknowledge that: (1) I have read and understand the above stated Lead Warning Statement; (2) I have received from the Government the following document(s): The Environmental Baseline Survev for Transfer and the Findina of Suitability for Transfer - East Martello Battery. representing the best information available to the Government as to the presence of Lead-Based Paint and Lead-Based Paint hazards in the buildings covered by this Transfer. (3) I understand that my failure to inspect, or to become fully informed as to the condition of all or any portion of the property offered will not constitute grounds for any claim or demand for adjustment or withdrawal of any bid or offer made after its opening or tender; (4) I understand that upon execution of this transfer, I shall assume full responsibility for preventing future lead exposure by properly managing and maintaining or, as required by applicable federal, state, or local laws or regulations, for abating any lead-based paint hazard which may pose a risk to human health. Transferee (or duly authorized agent) Date C f/ Ll I T<:".. -J I, .-. 8T ANDARD ARCHITECTUAL AND ARCHEOLOGICAL PRESERVATION COVENANT for TRANSFERRED PROPERTY XXX. Grantee hereby covenants on behalf of itself, its successors and assigns, to the Florida State Historic Preservation Officer (SHPO) to preserve and maintain East Martello Battery Bunker, located in the County of Monroe, State of Florida, in a manner that preserves and maintains the attributes that contribute to the eligibility of the East Martello Battery Bunker, of which said real property is eligible for listing in the National Register of Historic Places, Such attributes include exterior features (including facades and fenestration, scale, color, materials, and - mass), interior features determined significant by the Florida SHPO, and views from, to, and across the Property. Property being more particularly described as a parcel of land located in Monroe County, Key West, Florida, and being more particularly described as follows: EAST MARTELLO BATI'ERY SITE A parcel of land located in Section 4, Township 68 South, Range 25 East, on the Island of Key West, Monroe County, Florida and being more particularly described as follows: COMMENCE at the Northwest comer of the United States Government East Martello Tower Military Reservation as shown on a map recorded in Plat Book I at Page 31 of the Public Records of Monroe County, Florida and said point also being the Southwest comer of Lot II, Block 2, "RESUBDIVISION OF BLOCK 2, KEY ESTATES", according to the Plat thereof, as recorded in Plat Book 3, at page 101 of the Public Records of Monroe County, Florida; THENCE N 77035'02" E along the Southerly Line of said "RESUBDIVISION OF BLOCK 2, KEY ESTATES", for 682.99 feet to the POINT OF BEGINNING; THENCE S 12028'00" E, and leaving the said Southerly Line of Key Estates a distance of 432.00 feet; THENCE N 77032'00" E, a distance of 530.00 feet; THENCE S 12028'00" E, a distance of 668.00 feet; THENCE N 79051 '00" E, a distance of 1352,60 feet; THENCE N 01045'00" W, a distance of 631.97 feet to the Southerly Line of a 50 foot wide easement; THENCE meander the said Southerly Line of the easement for the following twelve (12) metes and bounds; THENCE S 89030' 10" W, a distance of335,85 feet; THENCE N 88058'38" W, a distance of204.30 feet to the point of curvature of a curve to the left, having: a radius of 475.00 feet, a central angle of 17032'43", a chord bearing ofS 82015'00" Wand a chord length of 144.89 feet; THENCE along the arc of said curve, an arc length of 145.46 feet to the point of tangency of said curve; THENCE S 73028'38" W, a distance of 124.00 feet to the point of curvature of a curve to the right, having: a radius of225,OO feet, a central angle of 10037'07", a chord bearing of S 78047'12" Wand a chord length of 41.64 feet; THENCE along the arc of said curve, an arc length of 41.70 feet to the point of tangency of said curve; THENCE S 84005'45" W, a distance of 122,92 feet; THENCE S 81053'40" W, a distance of 236.06 feet to a point on a curve to the right, having: a radius of 1025.00 feet, a central angle of 17026' 59", a chord bearing of .z ~,...:;;..o ~ - " N 89022'51" W and a chord length of310.96 feet; THENCE along the arc of said curve, an arc length of 312.17 feet to the point of tangency of said curve; THENCE N 80039'21" W, a distance of 56.37 feet to the point of curvature of a curve to the right, having: a radius of 425.00 feet, a central angle of20039'05", a chord bearing of N 70019'49" W and a chord length of 152.36 feet; THENCE along the arc of said curve, an arc length of 153.18 feet to the point of tangency of said curve; THENCE N 60000'17" W, a distance of288.91 feet; THENCE N 23006'58" W, a distance of 13.06 feet; THENCE S 77035'02" W, and along a portion of the Southerly Line of said plat of Key Estates a distance of 104.80 feet to the POINT OF BEGINNING. Parcel contains 1,153,719 square feet or 26.49 acres, more or less. 1. The East Martello Battery Bunker will be preserved and maintained in accordance with the Secretary ofInterior's Standards for Rehabilitation and Guidelines for Rehabilitatine Historic Buildings (National Park Service). No construction, alteration, rehabilitation, remodeling, demolition, disturbance of the ground surface, or other actions shall be undertaken or pennitted to be undertaken that would materially affect the integrity or appearance of the attributes described above without the prior written pennission of the Florida State Historic Preservation Officer (SHPO), and signed by a fully authorized representative thereof. 2. Upon acquisition of the Property, the Grantee will take prompt action to secure the property from the elements, vandalism, and arson, and will undertake any stabilization that may be required to prevent deterioration. Grantee will make every effort to retain or reuse, to the extent practicable, the historic structure. 3. In the event that archeological materials are encountered during construction or ground disturbing activities, work shall cease in the immediate area until the SHPO is consulted and provides written pennission to recommence work. Should the SHPO require, as a condition of the granting of such pennission, that the Grantee conduct archeological survey data recovery operations or other activities designed to mitigate the potential adverse effect of the proposed activity on the archeological resources the Grantee shall at his/her/its own expense conduct such activities in accordance with the Secretarv of the Interior's Standards and Guidelines for Archeoloeical Documentation (48 FR 447344-37) and such standards and guidelines as the SHPO may specify, including. but not limited to, standards and guidelines for research design, field work, analysis, preparation and dissemination of reports, disposition of artifacts and other materials, consultation with Native American or other organization, and re-intennent of human remains. 4. The Grantee will allow the Florida SHPO or his/her designee, at all reasonable times and upon reasonable advance notice the Grantee, to inspect East Martello Battery Bunker in order to ascertain whether the Grantee is complying with the conditions of this preservation covenant. 5. The Grantee will provide the Florida SHPO with a written summary of actions to be taken to implement the provisions of this preservation covenant with one (1) year after the effective date of the transfer of East Martello Battery Bunker, Similar reports will be submitted to the Florida SHPO, with a copy to the Navy. 6. Failure of the Florida SHPO to exercise any right or remedy granted under this covenant shall not have the effect of waiving or limiting the exercise by the Florida SHPO or any other right or remedy or the invocation of such right or remedy at any other time. 7, In the event of a violation of this covenant, and in addition to any remedy now or hereafter provided by law, the Florida SHPO may, following reasonable notice to Grantee, institute suit to enjoin said violation or to require the restoration of East Martello Battery Bunker. The successful party shall be entitled to recover all costs or expenses incurred in connection with such a suit, including all court costs and attorney's fees. This covenant is binding on Grantee, its successors, and assigns, in perpetuity. The restrictions, stipulations and covenants contained herein shall be inserted by Grantee, its successors and assigns, verbatim or by express reference in any deed or other legal instrument by which it divests itself of either the fee simple title or any lesser estate in East Martello Battery Bunker, or any part thereof.