Mun Services Ctr Restrict Coven
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MEMORANDUM
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December 13, 2004
TO:
The Honorable Mayor and City Council Members
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FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Declaration of Restrictive Covenants
The Kerper Court site of the new City of Dubuque Municipal Services Center is
contaminated with lead in its northwestern quarter. The lead is likely due to the century-
long yard operations of the former property owner, a now-defunct railroad. An
agreement with the Iowa Department of Natural Resources (IDNR) was reached a few
years ago, which allowed the City to develop the site contingent upon no residential use
and encapsulation of the contaminants.
Operations and Maintenance Manager Don Vogt and Water Department Manager Bob
Green recommend City Council approval of a Declaration of Restrictive Covenants for
the site of the new Municipal Services Center. Upon approval and recording of the
document, a "no further action letter" will be requested from the IDNR.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Michael C. Van Milligen
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Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Don Vogt, Operations and Maintenance Manager
Bob Green, Water Department Manager
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MEMORANDUM
December 13, 2004
TO:
FROM:
Michael C. Van Milligen, City Manager
Don Vogt, Operations and Maintenance ~er ~
Bob Green, Water Department Manager ~
SUBJECT: Declaration of Restrictive Covenants
INTRODUCTION
The purposes of this memorandum are to recommend that the City Council approve the
attached Declaration of Restrictive Covenants for the site of the new Municipal Services
Center.
BACKGROUND
The Kerper Court site of the new City of Dubuque Municipal Services Center is
contaminated with lead in its northwestern quarter. The lead is likely due to the century,
long yard operations of the former property owner, a now-defunct railroad. An
agreement with the Iowa Department of Natural Resources (IDNR) was reached a few
years ago, which allowed the City to develop the site contingent upon no residential use
and encapsulation of the contaminants.
DISCUSSION
Now that the site is being developed and the IDNR is satisfied that the construction
plans show no residential development and proper encapsulation of the contaminants,
IDNR has agreed to accept the attached Declaration of Restrictive Covenants. Upon
City Council's approval of the document and its recording, we will request a "no further
action" letter from IDNR.
ACTION STEP
We request that the attached Declaration of Restrictive Covenants be approved by the
City Council.
Attachments
.
BAR"' A. ClOD,"'. V
COR P 0 RAT ION C 0 U N S I:;t.~' C I T Y 0 F DuB U QUE
MEMO
TO:
Don Vogt
Operations & Maintenance Manager
DATE:
December 6, 2004
RE:
City Garage Site
Don:
DNR has finally signed off on the Declaration of Restrictive Covenants. The final draft is
enclosed with an exhibit and legal description.
This needs to be approved by the City Council now and then recorded. Once recorded,
we can send a recorded copy to Jessica Montana at DNR and request a no further
action letter.
cc:
Mark Munson, Transit Manager
Jane McAllister, Esq.
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 I FAX (563) 583-1040 I EMAIL BALESQ@CITYOFDUBUQUE.ORG
10011111111111111111
Doc ID: 005073740005 Type: GEN
Recorded: 12,29,2004 at 03:08:25 PM
Fee Amt: $27.00 Page 1 of 5
Dubuque County Iowa
Kathv Flynn Thurlow Recorder
F1192004_00022631
Prepared by:
Barry A. Undahl 300 Main Street Suite 330 Dubuque iA 52001 563 583-4113
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION, made this 20t:h day of December
2004.
WHEREAS, the City of Dubuque, Iowa ("Declarant"), owns certain real
property, ("Property") located at Kerper Industrial Park, 925 Kerper Court,
Dubuque, Dubuque County, Iowa, and more fully described on the Exhibit
attached hereto and incorporated herein by this reference.
WHEREAS, it has been determined that lead contamination associated
with former uses of the site is present in the soil on the Property, now referred to
in Department of Natural Resources ("DNR") records as the City of Dubuque
Operations and Maintenance Facility. The evaluation indicates that
contamination may present risk of exposure to humans now or in the future if
certain activities on the property are not restricted.
WHEREAS, the Declarant has agreed to voluntarily execute this
instrument with the following described restrictions in the interest of reducing the
risk of exposure to lead contaminants now and in the future.
NOW, THEREFORE, Declarant hereby publishes and declares that the
Property shall be held, sold and conveyed subject to the following covenants, all
of which are for the purpose of protecting the value and desirability of the
Property and all of which shall run with the land and shall be a burden and a
benefit to, and shall be binding upon, Declarant. Declarant's successors and
assigns, and all parties acquiring or owning any right, title, lien or interest in the
Property and their heirs, successors, assigns, grantees, executors,
administrators, and devisees.
i. Restrictions
The Property shall not be used for residential purposes. Any facilities
constructed on the Property shall prevent human contact with the soil
by a barrier of adequate construction to prevent human exposure to
the lead contaminated soil on the Property. Examples of acceptable
barriers are: impermeable synthetic barrier; compacted soil barrier of
I
no less than two feet; and asphalt or concrete paving/capping of no
less than four inches.
li. Enforcement
If any person shall violate or attempt to violate any of the covenants
contained herein, it shall be lawful for the DNR or any person holding
any lien or other interest in the Property to prosecute a proceeding in
equity to enjoin the person from such violation.
III. Term of Covenants
The covenants contained herein shall be deemed covenants running
with the land, and shall remain in full force and effect until the earlier of
the termination of these covenants by the Declarant, or by Declarant's
successors and assigns, or twenty-one (21) years after the date these
covenants are recorded in the Office of the County Recorder of the
county where the Property is located. These covenants may be
extended for successive twenty-one (21) year periods by the filing of a
verified claim in accordance with Iowa Code Section 614.24, which
verified claim may be filed by the DNR or any party holding any lien or
other interest in the Property.
IV. Severability
Invalidation of any portion of these covenants by judgment of any court
shall in no way affect any of the other covenants contained herein,
which shall remain in full force and effect.
V. Termination of Covenants
The covenants contained herein shall terminate twenty-one years after
the date these covenants were recorded in the Office of the County
Recorder, unless extended in accordance with Iowa Code Section
614.24. These covenants shall not be terminated prior to this
expiration period by the Declarant, or the Declarant's successors and
assigns, without obtaining prior approval from the DNR in accordance
with administrative rules in effect at the time. The DNR shall be given
thirty (30) days notice prior to filing a notice of termination in the Office
of the County Recorder or commencement of any judicial action to
terminate these covenants. Failure to provide notice shall invalidate
any action to terminate these covenants.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein,
has hereunto set its hand as of the day and year first above written.
74
CITY OF DUBUQUE, IOWA
STATE OF IOWA }
} SS:
COUNTY OF DUBUQUE )
On this day of 2004, before me,
, a Notary Public in and for the State of Iowa, personally
appeared Terrance M. Duggan and Jeanne F. Schneider, to me personally
known, and, who, being by me duly sworn, did say that they are the Mayor and
City Clerk, respectively, of the City of Dubuque, Iowa; that the seal affixed to the
foregoing instrument is the corporate seal of the corporation, and that the
instrument was signed and sealed on behalf of the corporation, by authority of its
City Council, as contained in Resolution No. adopted by the Gity
eounelk on the day of , and that
Terrence M. Duggan and Jeanne F. Schneider acknowledged the execution of
the instrument to be their voluntary act and deed and the voluntary act and deed
of the corporation, by it voluntarily executed.
j1-
Notiry Public in and for Said S ate and County
S U.Af4 A9. I�dfh:1�
" COMMISSION N0.YCiliff�PISSID 774 N ERES
114>05
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LEGAL DESCRIPTIONS FOR CONT ENT AREAS A AND B
AREA A:
Page 2 of 2
Beginning at the most Northerly corner of Lot 2-2 of Kerper Industrial Park in the City of Dubuque,
Iowa;
Thence South 15 degrees 08 minutes 48 seconds East, 277.84 feet along the Easterly line of said Lot 2-2;
Thence South 66 degrees 31 minutes 42 seconds West, 337.88 feet, to a point on the Northwesterly line of
said Lot 2-2;
Thence North 30 degrees 30 minutes 33 seconds East, 467.48 feet along said Northwesterly line, to the
point of beginning.
Containing 46,444 square feet, more or less, and subject to easements, reservations, restrictions, and
rights -of -way of record and not of record, the plat of which is attached hereto and made a part of this
certificate.
Commencing at the most Northerly corner of Lot 2-2 of Kerper Industrial Park in the City of Dubuque,
Iowa;
Thence South 15 degrees 09 minutes 48 seconds East, 277.84 feet along the Easterly line of said Lot 2-2;
Thence South 04 degrees 11 minutes 18 seconds East, 236.61 feet, to the point of beginning;
Thence South 80 degrees 57 minutes 59 seconds East, 8.15 feet;
Thence South 09 degrees 04 minutes 25 seconds West, 123.13 feet;
Thence South 14 degrees 51 minutes 56 seconds West, 113.86 feet;
Thence North 76 degrees 13 minutes 27 seconds West, 28.01 feet;
Thence North 16 degrees 48 minutes 17 seconds East, 157.50 feet;
Thence North 16 degrees 25 minutes 16 seconds East, 78.69 feet, to the point of beginning.
Containing 4933 square feet, more or less, and subject to easements, reservations, restrictions, and rights -
of -way of record and not of record, the plat of which is attached hereto and made a part of this certificate.
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PREPARED Wf: llW ENGu9EERS k SUAiV(YCRS P.C. 41$5 PENNSYLVAN(A AVE, OUSUQUE, IOWA. 312.556.2464
EXHIBIT
CONTAINMENT AREAS A AND B LYING WITHIN LOT 2-2 OF KERPER INDUSTRIAL
PARK IN THE CITY OF DUBUQUE, IOWA
f POINT
IBEGINNING A
� \AREA a
NORTH
GRAPHIC SCALE
0 140 200 /
1" ton' 26AREA A
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DRAWING MAY HAVE BEEN REDUCED
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LEGEND
PROPERTY UNE
FOUND 5/8' IRON ROD
W/ CAP NO, 12631 2�0 W LOT 3
SET 5 $' ON ROD
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( ) RECORD DIMENSION
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BEGINNING
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AREA B
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THIS SURVEY IS SUBJECT TO EASEMENTS,
RESERVATIONS, RESTRICTIONS AND RIGHTS -OF -WAY
OF RECORD AND NOT OF RECORD.
SURVEYED FOR: CITY OF DUBUQUE PROPRIETOR: CITY OF DUBUQUE, IOWA
z
y 1A5.,
z6 0l. AREA B
N767J'27•W 4933 SO. FT.
EXISTING 15' PUBLIC '
UTILITY EASMENT
(INST. NO. 8607-99)
! OF?
AREA A - O.997 ACRES
AREA B -• 0,113 ACRES
TOTAL AREA SURVEYED: 1,110 ACRES
DATE OF SURVEY: SEPTEMBER, 2004
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IIW ENGINEERS &
SURVEYORS, ENC.
Iowa, IN—* 1l--ir
4165 Pennsyly nla A— DUI -RUG. IA 52G02
319.556.2404
GUttmb.r IA • NUz41 G-m NA
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CHECKED JMT PRDJ. NO 04006-03
DATE '10-21-04 SHEET 1 o1 2