Environmental Covenant for Former Dubuque Hardwoods SiteMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Environmental Covenant for former Dubuque Hardwoods Site
DATE: April 13, 2011
Mi hael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
Dubuque
AA- AmedcaCity
1 I
2007
The City purchased the Dubuque Hardwoods site on 5 Street in the Port of Dubuque to
facilitate the redevelopment of the area. The site had a leaking underground storage
tank which has contaminated the soil and groundwater on a portion of the property. The
City has been monitoring the site for several years, as required by the Iowa Department
of Natural Resources (DNR).
The latest Site Monitoring Report has shown that the contamination is not moving and
does not impose a risk given the current conditions and use of the property. The DNR
will not require additional monitoring of the site if the City places an environmental
covenant on the property which prohibits drinking water wells on the site.
Economic Development Director Dave Heiar recommends City Council approval of an
environmental covenant on Lot 2 Riverwalk 9 Addition in the Port of Dubuque to
prohibit drinking water wells on the property. This will allow the site to be reclassified as
No Action Required by the Iowa DNR.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Masterpiece on the Mississippi
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
SUBJECT:
DATE: April 11, 2011
Environmental Covenant for former Dubuque Hardwoods Site
Dubuque
hitid
All- AmdlcaCity
2007
INTRODUCTION
This memorandum asks for City Council action placing an environmental covenant on
the former Dubuque Hardwoods site in the Port of Dubuque.
BACKGROUND
The City purchased the Dubuque Hardwoods site on 5 Street in the Port of Dubuque to
facilitate the redevelopment of the area. The legal description for the property is Lot 2
of Riverwalk 9 Addition. The site had a Leaking Underground Storage Tank (LUST)
which has contaminated the soil and groundwater on a portion of the property. The City
has been monitoring the site for several years as required by the Iowa DNR.
DISCUSSION
The latest Site Monitoring Report has shown that the contamination is not moving and
doesn't impose a risk given the current conditions and use of the property. The DNR
will not require additional monitoring of the site if the City places an environmental
covenant on the property which prohibits drinking water wells on the property. Closed -
loop geothermal wells are not prohibited by the covenant.
Alliant Energy has a utility easement on a small portion of the site. Their legal counsel
has advised not to be a party to the environmental covenant. Counsel for the Iowa DNR
has determined that they do not need to be a party to the covenant.
RECOMMENDATION
It is recommended to approve the attached resolution approving an environmental
covenant on Lot 2 Riverwalk 9 Addition in the Port of Dubuque to prohibit drinking
water wells on the property. This will allow the site to be reclassified as No Action
Required by the Iowa DNR.
ACTION STEP
The action is to approve the attached resolution.
Environmental Covenant
Recorder's Cover Sheet
Type /Title of document: Environmental Covenant
Return Document to: Kevin S. Fimstahl, Acting City Clerk
City of Dubuque
50 West 13th Street
Dubuque, IA 52001
563 -589 -4121
Preparer Information: Julie Oriano
Stanley Consultants
2658 Crosspark Road, Suite 100
Coralville, IA 52241
319.626.5330
Taxpayer Information: City of Dubuque
City Hall
50 W 13 St
Dubuque, IA 52001 -4864
Doc ID 007042230009 Type GEN
Kind MISCELLANEOUS.
Recorded: 05/10/2011 at 10:43:35 AM
Fee Amt: $49.00 Page 1 of 9
Dubuque County Iowa
Kathy Flynn Thurlow Recorder
F11e2011- 00006654
Grantor: City of Dubuque
Holder /Grantee: City of Dubuque
Legal Description: Lot 2 of Riverwalk Ninth Addition in the City of Dubuque,
Dubuque County, Iowa
Prepared /Return to: David Heiar, Economic Development, 50 W. 13 Street, Dubuque, IA 52001 (563) 589 -4393
RESOLUTION NO 129 -11
RESOLUTION APPROVING AN ENVIRONMENTAL COVENANT ON LOT 2 OF
RIVERWALK NINTH ADDITION IN THE PORT OF DUBUQUE.
Whereas, property in the Port of Dubuque had a Leaking Underground Storage
Tank; and
Whereas, recent reports show the environmental contamination is at a level that
does not require additional monitoring; and
Whereas, the Iowa Department of Natural Resources requires an environmental
covenant be placed on the property to prohibit drinking water wells on the property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the Environmental Covenant for Lot 2 of Riverwalk Ninth
Addition is hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute said
Covenant on behalf of the City of Dubuque and the City Clerk is authorized and directed
to attest to his signature.
Section 3. That the City Clerk is to record the covenant at the Dubuque
County Recorder's Office.
Passed, approved and adopted this 18 d) ril, 2011.
1
Atte
air
Roy D. Buol, Mayor
anne F. Schneider, City Clerk
F: \USERS \Econ Dev \Environmental \Dubuque Hardwoods\20110418 Reso approving DBQ hardwoods EC.doc
(Paq. 1 of 14)
PROJECT: 6118.7
1111111111111111111
Doc ID: 006939710014 Type: OEN
Kind: SUBDIVISION PLAT
Recorded: 09 /23/2010 at 04:04:41 PM
Fee Ant: 874.00 Pao. 1 of 14
Dubuoue County Iowa
Kathy Flynn Thurlow Recorder
Fi4e2010- 00012178
PREPARED BY: LAWRENCE A. BOYER L.S. 9761 WHKS & CO., 1701 ROUTE 35 NORTH, EAST DUBUQUE, IL 61025 (815)747 -8833
N.A.P.
MATCH SHEET 3
LINE SHEET 2
LOT 1
LOT 2
LOT A COMBINED INTO
LOT B COMBINED INTO
LOT C COMBINED INTO
LOT D COMBINED INTO
TOTAL AREA SURVEYED
Survey Requested By:
CITY OF DUBUQUE
PLAT OF SURVEY
RIVERWALK NINTH ADDITION IN THE CITY OF DUBUQUE,
DUBUQUE COUNTY, IOWA
INDEX SHEET
INDUSTRIAL
SURD 2
LOT ''I
LOT
S1Y CORNER
LOT 2 OF 1
RIVERWAU( SI%THi
ADDITION SE'LY LINE LOT 2 OF I
RIVERWALK 13TH ADDITION
BASIS OF BEARING IS DUBUQUE AREA GIS
AREA SURVEYED
EAST FIFTH STREET
EAST FIFTH STREET
BELL STREET
BELL STREET
WHKS & Co.
ENGINEERS
PLANNERS
Lv41 SURVEYORS
1701 ROUTE 35 NORn1 EAST DUBUQUE, IL 81027 -5534 815 -747 -8133
CENTERLINE OF RIGHT OF WAY
CHORD DEFINI1ION CURVE DATA
CENTRAL ANGLE 102 ° 56'19' (102'43'10)
LENGTH 1715.64' (1712')
\ RADIUS 955.3T (6' CURVE)
.P'
6.187 ACRES
12.500 ACRES
0.067 ACRES
0.174 ACRES
0.016 ACRES
0.267 ACRES
19.211 ACRES
?LAWRENCE A. z
BOYER
9761
..
'••....... *..
T}
, PElrr1 1 3313 \ 1,..
IOWA
S'LY RIGHT OF WAY LINE CHICAGO
CENTRAL & PACIFIC RAILROAD
(FORMERLY DUBUQUE AND DUNLEITH
BRIDGE COMPANY RIGHT OF WAY)
SCALE IN FEET 1' m 200'
•e
4 .N 1, 0 100 200
\
4
1$ q,
f L
3 41
_ OEQ 32F�
SHEET 2 OF 7
S it 1,Oti:1
ELY CORNER
LOT 2 OF 1
RIVERWALK 515111
ADDITION
LEGEND
FOUND T -BAR WITH CAP 9761
FOUND CUT "X" IN CONCRETE
PLACED T- BAR WITH CAP 9761
PLACED CUT "X" IN CONCRETE
SURVEYED BOUNDARY LINE
EASEMENT LINE
RECORD
N.A.P.
DHICA
•
0
400
NOT PART OF THIS PLAT
DUBUQUE HARBOR IMPROVEMENT
COMPANY ADDITION
1 hereby certify thot this land surveying document was prepared
and the related survey work was performed by me or under my
direct p oral supervision and that I am a duly licensed Land
under the la 000fff the State of lowo. X907 p
A Dote
Lawrence A.
Boyer
License Number 9761
Date of Survey March 1, 2009
My license renewal dote is December 31, 2010
Sheets covered by this seal: 1 Through 7 of 7
eittElAt OW
SHEET 1 OF 7
Book , Page , File Number 2010 - 00012178
Legend
• Soil Boring /Monitoring Well Location
' N_ Road Centerline
Notes:
1. 2009 Aerial photograph obtained
from the City of Dubuque GIS Department.
0 75150 300 450 600
Feet
Stanley Consultants INC. January 2011
SITE VICINITY MAP - 2009
Former Dubuque Hardwoods
205 E. 6th St. Extention
Dubuque, Iowa
Figure 4
ENVIRONMENTAL COVENANT
This environmental covenant is established pursuant to Iowa Code chapter 455I entitled
Uniform Environmental Covenants Act (see also 2005 Iowa Acts, Senate File 375).
The City of Dubuque, hereafter "grantor" or "holder /grantee ", and the Iowa Department
of Natural Resources (Department) in its capacity as an agency, enter into this
environmental covenant for the purpose of subjecting the property described below to
certain activity and use limitations in accordance with the terms and conditions as .
specified and the authorities granted the Department in Iowa Code section 455B.103(7),
section 455B.474(1)(f)(4) "f', Iowa Code chapter 455I, and Department rules in chapter
567 Iowa Administrative Code (I.A.C.) 135.
1. Affected Property. The grantor is the fee title. owner of the property identified
on the attached plat maps (see Exhibit "A ") and legally described as:
Lot 2 of Riverwalk Ninth Addition in the City of Dubuque,
Dubuque County, Iowa.
Hereinafter, the affected property will be referred to as "the property."
2. Risk Management and Institutional Controls. The City of Dubuque has
conducted a soil and groundwater investigation and risk assessment (tiered site
assessment) of the property in accordance with Department rules in chapter 567 I.A.C.
135.
This assessment constitutes an environmental response project as defined in Iowa Code
section 455I.2(5). The purpose of this environmental covenant is to manage the risk of
future exposure to existing soil and/or groundwater contamination at the site by limiting
specified land use activities at this property, establishing affirmative obligations, and
enforcing the terms of this covenant.
3. Tiered Assessment Reports. Department files reference the UST source site
located at 205 East 6th Street Extension by Registration No. 8601860 and LUST NO.
8LTN99, and by the name Dubuque Hardwoods Inc. The Department approved a low
risk classification for the site on March 20, 2000. The Site Monitoring Report dated
January 7, 2011 proposes a no further action classification with the use of institutional
controls. The Department, in a letter dated , approved the response
action for this property.
-1-
4. Reopening. The signatories acknowledge that failure of the activity and use
limitations to serve their intended purpose including the prevention of exposure to
contamination could result in the Department reopening its review and regulation of the
contaminant condition on the property as provided under the terms of this covenant, Iowa
Code chapters 455B and 455I, and applicable Department administrative rules.
5. Identity of Grantor and Holder /Grantee).
GRANTOR: City of Dubuque
HOLDER/GRANTEE: City of Dubuque
AGENCY: Iowa Department of Natural Resources
6. Representations and Warranties. The grantor warrants to the other signatories
to this covenant the following:
a. The grantor is the sole fee title owner of the property;
b. The grantor holds sufficient fee title to the property to grant the rights and
interests described in this covenant free of any conflicting legal and
equitable claims;
c. With the exception of an Underground Electric Line Easement held by
Interstate Power and Light Company and recorded in the Office of the
Dubuque County Recorder (instrument number 2010 -14348 ); and a
Visibility Corridor Easement held by the City of Dubuque and recorded in
the Office of the Dubuque County Recorder (instrument number 2006-
9265), the grantor has identified no other persons holding legal or
equitable interests, including, but not limited to, contract buyers, mortgage
holders, other consensual lien holders and lessees. The grantor has and
secured the consent of the easement holders by signatures on this
covenant.
7. Running with the Land. This environmental covenant is perpetual and runs with
the land as provided in Iowa Code section 455I.9 until modified or terminated. The terms
of this environmental covenant are binding on the grantor and all successors in interest,
assigns and all transferees acquiring or owning any right, title, lien or interest in the
property and their heirs, successors, assigns, grantees, executors, administrators and
devisees. The term "transferee," as used in this environmental covenant, shall mean any
future owner of any interest in the property or any portion thereof, including, but not
limited to, owners of an interest in fee simple, contract buyers, mortgagees, easement
holders and/or lessees.
8. Activity and Use Limitations and Terms. The property is subject to the
following activity and use limitations:
-2-
a) No drinking water or non - drinking water wells as defined in Iowa Department of
Natural Resources Rule 567 Iowa Administrative Code 135.2 and as subsequently
amended shall be installed within the boundaries of the property.
For purposes of reference, drinking water well is defined as (according to Iowa
Administrative Code, Chapter 135.2): "Any groundwater well used as a source
for drinking water by humans and groundwater wells used primarily for the final
production of food or medicine for human consumption in facilities routinely
characterized with the Standard Industrial Codes (SIC) group 283 for drugs and
20 for foods. (or the North American Industry Classification System (NAICS)
Codes of 3254 for drugs and 311 for food)."
Non - drinking water wells are defined as (according to Iowa Administrative Code,
Chapter 135.2): "Any groundwater well (except an extraction well used as part of
a remediation system) not defined as a drinking water well including a
groundwater well which is not properly plugged in accordance with department
rules in 567- Chapters 39 and 49."
b) The following exceptions apply:
a. Closed -loop geothermal wells are not restricted on the property by this
environmental covenant.
b. Monitoring wells are allowed to determine current site conditions for
property transactions or as may be required by law.
c. As otherwise provided for in Paragraph 10 below.
9. Notice of Non - Compliance. Any property owner or subsequent transferee of an
interest in the property shall notify the Department as soon as possible of conditions
which would constitute a breach of the activity and use limitations in paragraph eight (8)
if they have actual knowledge of these conditions or would reasonably be deemed to have
knowledge within the normal course of administration of their property interest.
10. Access to Property. Reasonable access to the property is granted the Department
or any authorized representative of the Department, public or private, for the purpose of
implementation, monitoring and enforcement of the terms of this environmental
covenant. The Department, its authorized representatives or other persons entitled to
access shall provide the current owner of the property with reasonable notice, an
explanation of the reasons for entry and the scope of onsite activities prior to access.
11. Groundwater Hazard Statement Notice. The signatories and all subsequent
transferees required to submit a groundwater hazard statement under Iowa Code section
558.69 shall make reference to this environmental covenant in substantially the following
form:
THE INTEREST CONVEYED IS SUBJECT TO AN
ENVIRONMENTAL COVENANT, DATED [ date: month, day, year]
RECORDED IN THE DEED OR OFFICIAL RECORDS OF THE
-3-
COUNTY RECORDER ON [ date: month, day, year] IN
[document, book and page, or parcel number].
THE ENVIRONMENTAL COVENANT CONTAINS THE
FOLLOWING ACTIVITY AND USE LIMITATIONS: [language that
describes the activity and use limitations exactly as it appears in the
environmental covenant, paragraphs 8(a) and 8(b).]
12. Modification and Termination. Modification or termination of the terms of this
covenant shall comply with the standards in Iowa Code chapter 455I and applicable
Department administrative rules. The terms of this environmental covenant may be
modified or terminated by written consent of the Director of the Department, the then
current fee simple title owner and all original signatories (unless exempted under the
provisions of Iowa Code section 455I.10(1) "c" in accordance with and subject to the
provisions of Iowa Code section 455I.10). The termination or modification is not
effective until the document evidencing consent of all necessary persons is properly
recorded. If not by consent, any modification or termination of this environmental
covenant shall be in accordance with Iowa Code section 455I.9 and such additional terms
as specified in this covenant.
13. Enforcement. The terms of this environmental covenant may be enforced in a
civil action for injunctive or other equitable relief by the signatories and those persons
authorized by and in accordance with Iowa Code section 455I.11.
14. Severability. If any provision of this environmental covenant is found to be
unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
15. Governing Law. This environmental covenant shall be governed by and
interpreted in accordance with the laws of the State of Iowa.
16. Recordation. Within thirty (30) days after Department approval of this
environmental covenant, the grantor shall record the environmental covenant in the same
manner as a deed to the property with the Dubuque County, Iowa, Recorder's Office.
17. Effective Date. The effective date of this environmental covenant shall be the
date upon which the fully executed environmental covenant has been properly recorded
with the Dubuque County, Iowa Recorder's Office.
18. Notice. Unless otherwise notified in writing by the Department, any document or
communication required by this environmental covenant shall be submitted to:
17. Effective Date. The effective date of this environmental covenant shall be the date upon
which the fully executed environmental covenant has been properly recorded with the Dubuque
County, Iowa Recorder's Office.
18. Notice. Unless otherwise notified in writing by the Department, any document or
communication required by this environmental covenant shall be submitted to:
19. Subordination and Consent. By signing this environmental covenant, the signatories
knowingly and intelligently acknowledge their consent to the terms of this agreement and agree
to subordinate their interest in the property.
GRANTOR and HOLDER/GRANTEE:
ATTEST:
State of Iowa
Iowa Department of Natural Resources
UST Section Supervisor
Wallace State Office Building
502 E 9 Street
Des Moines, IA 50319
County of Dubuque
) ss.
ACKNOWLEDGMENTS
DATE:
DATE:
Jeanne -F -S Im:od ' Kevin S. Firnstahl
git _cder4r Acting City Clerk
On this �' A day of cfna , 2011, before me a Notary Public in and for
said County and State, personally a geared Roy D. Buol and Kevin S. Firnstahl, to me_
personally known, who, being by me duly sworn, did say that they are the Mayor and City Clerk,
respectively, of the City of Dubuque, Iowa; that said instrument was signed on behalf of said
City of Dubuque by authority of Resolution No. 129 -11 and that the said Roy
D. Buol andKevin S. Firnstahl,as such officers, acknowledged the execution of said instrument
to be the voluntary act and deed of said corporation, by it and by them voluntarily executed.
blic for State of Iowa
- 4//7
BRENDA FUGLSANO
Commission Number 745661
My Comm. Exp. MAO 19, 2013
, Notary
AGENCY:
IOWA DEPARTMENT OF NATURAL DATE: � —,/
RESOURCES
By:
State of Iowa
County Polk
4 684289.1
Roger L. Lande
Iowa Department of Natural Resources
) ss.
On this l day of j //J / , 20 // , before me personally appeared
Rodger Lande, known to me o be the Director of the Iowa Department of Natural Resources or
the lawful designee of the Director who executed the foregoing instrument, and acknowledge
that this person executed the same as her volu tary act and deed.
bli for State of owa
LISA NISSEN
COMMISSION NO. 721371
MYCO %77a EXPIRES
Notary