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Dubuque Regional Airport Conservation Covenants and Restrictions EasementMasterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Dubuque Regional Airport Conservation Easement DATE: September 14, 2011 Dubuque trail AA- AmedcaCity 2007 Airport Manager Bob Grierson recommends the City Council set a public hearing for October 3 to dispose of an interest in City property as set forth in the Declaration of Conservation Covenants and Restrictions Conservation Easement on the specific property at the Dubuque Regional Airport. The Declaration of Conservation Covenants and Restrictions will place restrictions to serve as the formal site protection instrument to assure that the designated airport property remains protected in its restored condition as a natural feature and to prevent any use of the property that will significantly impair or interfere with the conservation value. I concur with the recommendation and respectfully request Mayor and City Council approval. el C. Van MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Robert A. Grierson, Airport Manager Milligen ligen THE CITY OF Du13 Masterpiece on the Mississippi To: Michael C. Van Milligen, City Manager From: Robert A. Grierson, Airport Manager Date: September 13, 2011 Subject: Dubuque Regional Airport Conservation Easement INTRODUCTION Dubuque All•MtercaCAyt IIII! 2007 The attached Declaration of Conservation Covenants and Restrictions is to place restrictions to serve as the formal site protection instrument to assure that the designated airport property remains protected in its restored condition as a natural feature and to prevent any u se of the property that will significantly impair or interfere with the conservation value. DISCUSSION During the design process for the New Terminal Facility project at the Dubuque Regional Airport, constructing a new stream channel relocation was determined necessary to replace an existing stream located within the proposed building and paving limits. As a result of this relocation and additional site improvements, the Airport was required to apply for a Section 404 Permit from the Army Corps of Engineers (COE) and a Section 401 Water Quality Certification (Iowa Department of Natural Resources). To adequately offset the permanent impacts to the site, the Airport prepared and submitted a stream mitigation plan for review and approval by the COE. As a condition of the 404 & 401 Permits, the Airport is required to restrict the use and development of the mitigation area with the restrictions being recorded with the County Recorder. The proposed restriction does not allow future development or land use conversion of the mitigation area (all or a portion) for any purpose which may be detrimental to stream functions without prior written approval from the Iowa DNR or the COE. RECOMMENDATION I recommend that the City Council set a public hearing for October 3, 2011 to dispose of an interest in city property as set forth in the attached Declaration of Conservation Covenants and Restrictions Conservation Easement on the specified property at the Dubuque Regional Airport. ACTION STEP The action step is to approve the attached resolution. BUDGET IMPACT None ACTION TO BE TAKEN I respectfully request that the City Council adopt the attached resolution approving the Conservation Easement on the Dubuque Regional Airport. cc: Airport Commission 2 NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, ON DISPOSING OF THE CITY'S INTEREST IN CERTAIN REAL ESTATE AT THE DUBUQUE REGIONAL AIRPORT AS SET FORTH IN A DECLARATION OF CONSERVATION COVENANTS AND RESTRICTIONS PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa, will hold a public hearing on the 3rd day of October, 2011, at 6:30 p.m. in the City Council Chambers at the Historic Federal Building, 350 W. 6th Street, Dubuque, Iowa, at which meeting the City Council proposes to take action disposing of the City's interest by Conservation Covenants and Restrictions in the following described real estate: A tract of land located in the Southwest quarter (SW 1/4) of the Southwest quarter (SW '/4) of the Section 26, and in the Northwest quarter (NW 1/4) of the Northwest quarter (NW 1/4) of Section 35, Township 88 North, Range 2 East of the 5th Principal Meridian in Dubuque County, Iowa A copy of the Conservation Covenants and Restrictions is on file at the Office of the City Clerk, City Hall, 50 West 13th Street, Dubuque Iowa 52001. At the meeting, the City Council will receive oral and written objections from any resident or property owner of said City to the above action. After all objections have been received and considered, the City Council may at this meeting or at any adjournment thereof, take additional action for the disposition of the City's interest in such real estate above. This notice is given by order of the City Council of the City of Dubuque, Iowa, as provided by Iowa Code § 364.7. Dated this 23rd day of September, 2011 Kevin S. Firnstahl, City Clerk of Dubuque, Iowa it 9/23 RESOLUTION NO. 321 -11 INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE AND FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON THE PROPOSED DISPOSITION OF CITY OWNED PROPERTY IN THE FORM OF A DECLARATION OF CONSERVATION COVENANTS AND RESTRICTIONS AND PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF Whereas, the City of Dubuque, Iowa (City) is the owner of the real property described in the attached Declaration of Conservation Covenants and Restrictions; and Whereas, the City Council has determined that it would be in the best interests of the City to restrict the use of the property described in the Declaration of Conservation Covenants and Restrictions. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City of Dubuque intends to dispose of an interest in the foregoing - described Property as described in the attached Declaration of Conservation Covenants and Restrictions. Section 2. The City Clerk is hereby authorized and directed to cause this Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on the City's intent to dispose of the foregoing- described Property, to be held on the 3rd day of October, 2011, at 6:30 o'clock p.m. in the City Council Chambers at the Historic Federal Building, 350 W. 6th Street, Dubuque, Iowa. Section 3. The City Clerk is hereby directed to cause at least one publication to be made of a notice of said meeting, in a, newspaper, printed wholly in the English language, published at least once weekly, and having general circulation in said City, said publication to be not less than four days nor more than twenty days before the date of said meeting on the issuance of said obligations. Passed, approved and adopted this 19th day of September, 2011. Attest: Kevin S. Fir stahl, City Jerk 1 t 9/23 L / n V. Sutton, Mayor Pro -Tem RESOLUTION NO. 321 -11 INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE AND FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUN- CIL OF THE CITY OF DUBUQUE, IOWA ON THE PROPOSED DIS- POSITION OF CITY OWNED PROPERTY IN THE FORM OF A DECLARATION OF CONSERVATION COVENANTS AND RESTRICTIONS AND PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF Whereas, the City of Dubuque, Iowa (City) is the owner of the real property described in the attached Declar- ation of Conservation Covenants and Restric- tions; and Whereas, the City Council has deter- mined that it would be in the best interests of the City to restrict the use of the property described in the Declaration of Conser- vation Covenants and Restrictions. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA Section 1. The City of - .Dubuque intends to' dispose of an interest in the foregoing- described Property as described in the attached peclaration of Conservaa,on Cove-1 nants ant Restrictions. Section 2. The City Cleirk is hereby author- ized' and directed to cause this Resolution and a notice to be published as pre -' scribed by Iowa Code Section 364.7 of a public hearing on the City's intent to dispose of the foregoing - described Property, to be held on the 3rd day' of October, 2011, at 6:30 o'clock p.m. in the City Council Chambers at the Historic Federal Building, 350 W. 6th Street, Dubuque, Iowa. Sermon 3.- The City Clerk is hereby directed to cause at least one publication to be made of a notice of said meeting, in a newspaper, printed wholly in the English language, published at least once weekly, and having general circu- lation. in said City, said publication to be not less than four days nor more than twenty days before the date of said meeting on the issuance of said ogligations. Passed, approved and adopted this 19th day of September, 201L Lynn V. Sutton, Mayor Pro-Tern Attest Kevin S. Firnstahl, City Clerk it 9/23 STATE OF IOWA {SS: DUBUQUE COUNTY CERTIFICATION OF PUBLICATION I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald,a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: September 23, 2011, and for which the charge is $27.60. Subscribed to before me, a Np ry Public and for Dubuque County, Iowa, this 64%0r,4✓. day of 20// otary Public in and for D uque County, Iowa. MARY K. WESTERMiE \! Commleslon Number 154 DECLARATION OF CONSERVATION COVENANTS AND RESTRICTIONS This Declaration of Conservation Covenants and Restrictions ( "Declaration ") is hereby made by the City of Dubuque ( "Declarant ") which owns and operates the Dubuque Regional Airport.and the property on which the airport operates. The Declarant is the owner of the parcel of real property described in this Declaration and is located in Dubuque County, Iowa. Declarant comes now and, for good and valuable consideration, declares conservation use restrictions on a portion of the property hereinafter described. A legal description of the specific parcel of Property subject to this Declaration is more particularly described in "Exhibit A" hereto attached and made a part hereof. The Declaration hereinafter stated shall apply to Property described in "Exhibit A" and is incorporated by reference herein for a description and for all other legal purposes. PREMISES WHEREAS, Declarant was issued a permit by the U.S. Army Corps of Engineers ( "USACE ") Action Number CEMVR -OD -P- 2010 -310 pursuant to Section 404 of the Clean Water Act (33 U.S.C. 1344) under the administrative regulatory authority of the USACE Rock Island District, Regulatory Branch, setting forth authorization for certain dredge and /or discharge of fill materials in Waters of the United States; and, WHEREAS, said permit dated June 13, 2011 is attached hereto as "Exhibit B" and by this reference is made part hereof; and WHEREAS, dredge and /or discharge of fill material in jurisdictional Waters of the United States including wetlands and streams pursuant to the Clean Water Act, Section 404, and /or Rivers and Harbors Act of 1899, Section 10, requires compensatory mitigation and perpetual protection of the mitigation property; and, WHEREAS, a dated and platted survey with seal affixed by an Iowa registered surveyor of the bearings and distances and coordinate values of the boundary of the Property is referenced in Exhibit A. The survey shows the planned stream and buffer areas within the Property. The property contains 7.23 acres in one parcel of land. The survey is made a part of this Declaration and is incorporated by reference; and, WHEREAS, the Property is approved as a stream and upland buffer tract for use by the Dubuque Regional Airport as compensatory mitigation in full for where stream impacts have been determined unavoidable after consideration of avoidance and minimization pursuant to the Clean Water Act, Section 404. The Declarant agrees to certain restoration, establishment, and preservation actions on the Property pursuant to the mitigation plan approved by the USACE. NOW, THEREFORE, in consideration of the mutual benefits to be derived by the Declarant and each and every subsequent owner and occupant of the real property, and as required mitigation for dredge and /or discharge of fill material in Waters of the United States including wetlands and streams, Declarant has promised to place certain restrictions on the Property exclusively for conservation purposes, in order that it shall remain substantially in its restored condition, in perpetuity. 1. 4— Transfers, Amendments, & Extinguishment. A) Declarant does hereby declare that all of the Property described in Exhibit A shall be held, transferred, sold, conveyed and occupied subject to the terms and conditions of the covenants, easements and affirmative obligations all of which shall run with the Property and will be binding on all persons, firms, associations, corporations or governmental entities having or hereafter acquiring any right, title or interest in said Property, or any part thereof, thcirits heirs, executors, administrators, successors and assigns. The terms and conditions of this Declaration of Covenants and Restrictions shall be both implicitly and explicitly included in any subsequent transfer, conveyance, or encumbrance affecting all or any part of the conservation property. It shall set forth the terms and conditions of this document either by reference to this document and its recorded location or by attachment and incorporation by reference. The covenant shall not be amended or extinguished except by written approval of the USACE, or its successor in administration of the Clean Water Act or the Rivers and Harbors Act of 1899; however, the following special provision shall be included: B) The property is part of an aviation facility. Should future studies by the Federal Aviation Administration (FAA) determine a justification for airport expansion and the resulting expansion cannot feasibly avoid the property then the City of Dubuque and the USACE, or its successor in administration of the Clean Water Act or the Rivers and Harbors Act of 1899, shall find agreeable terms for the extinguishment of this covenant. In addition, theses covenants shall be extinguished if it is determined, by a qualified Wildlife Damage Management Biologist, that the area described in Exhibit 1 interferes with the normal safe operation of the Airport (i.e. become a hazardous wildlife attractant, as determined by a qualified Wildlifc Damage Management Biologist). If an unsafe situation occurs. An extinguishment of this covenant shall result in one of the following:the (1) Aacquisition and protection of alternative real property providing equivalent conservation functions, services and values of wetlands, streams, creeks, shorelines, other waters of the U.S. and theirits buffers; or (2) 1 f available, fundingthe option to fund the purchase of conservation mitigation credits from an authorized wetland /stream mitigation bank sufficient to replace the conservation mitigation functions, services and values of the wetlands, streams, creeks, shorelines, and other waters of the U.S. and theirits buffers; or A4. (3) If available, the payment of funds to an in -lieu fee mitigation wetlands /streams trust account approved by the USACE in an amount sufficient to purchase and protect alternative real property. 2. Purpose. It is the purpose of the restriction to assure the property remain protected in its restored condition as a natural feature; and prevent any use of the property that will significantly impair or interfere with the conservation value. 3. Prohibited Uses. Except as necessary (1) to carry out stream and /or buffer restoration, enhancement and /or establishment in keeping with the mitigation plan of the permit as approved by USACE; or, (2) to fence the property to keep out trespassers, or for protection or enhancement of the property; or, (3) to carry out management and maintenance of the property as approved by the USACE; the actions encompassed as prohibited by this covenant shall include, but shall not be limited to the following: A) Earthmoving, grading, removal of topsoil, cultivation, filling or changes in the topography of the land in any manner; B) Placement of any structures, utilities, driveways, or walkways; C) Placement of refuse, wastes, sewage, dredged spoil, solid waste, incinerator residue, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, industrial, municipal, or agricultural waste on the Property; D) Draining, ditching, diking, dredging, channelizing, pumping, impounding, excavating; E) Use of off -road vehicles and used of motorized vehicles except on existing roadways is prohibited; F) Grazing or use by domesticated animals; G) Display of billboards, signs, or advertisements on or over the Property, except for: 1. P the posting of no trespassing signs, 2. Ttemporary signs indicating the property is for sale, signs 3. Signs identifying the conservation values of the property and /or s 4. Signs identifying the owner of the property, and G35. Ssigns required for the operation and safety of the Airport. 4. Easements. The protected property is free and clear of any and all liens, loans, claims, easements and encumbrances, except as otherwise identified in this document and its exhibits. Should an easement or legal right of use of the Property, not identified in this document, and not meeting the criteria of this restrictive covenant, be exercised in such a manner that it conflicts with the prohibited uses of the Property set out in this restrictive covenant, then the owners of the Property, whether the Declarant of this covenant or any heirs, executors, administrators, successors or assigns, shall be responsible for providing alternative conservation mitigation in such amounts and of such service and function as the USACE or any enforcer of this covenant shall determine in accordance with the terms of the permit /banking instrument and with Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899 and theirits implementing regulations. 5. Affirmative Duties. Declarant and its successors shall be responsible for management of the property for its conservation duties. Adequate financial resources shall be allocated by owner of the mitigation property for protection of the property. Declarant shall take immediate action to cure violations of this restrictive covenant. 6. Exclusive Possession. Declarant, its (personal representatives, heirs, executors, administrators) (successors and assigns), reserve all other rights accruing from its ownership of the Property including but not limited to the exclusive possession of the property, the right to transfer or assign theirits interest in the same, the right to take action necessary to prevent erosion on the Property, to protect the property from losing its conservation functions and services, or to protect public health or safety; and the right to use the property in any manner not prohibited by this Declaration and which would not defeat or diminish the conservation purpose of this Declaration. 7. Right of Ingress and Egress. The USACE, and /or thcirits respective agents, thcirits assigned agents and contractors, with an airport escort or following the completion of ground vehicle training by the USACE and /or its respective agents, assigns, and contractors, shall at reasonable times and upon notice to the owner, have an access easement for the right of ingress and egress to inspect the property in order to monitor and to ascertain whether there has been compliance with this Declaration. 8. Enforcement. The USACE or thcirits successor, as third party beneficiaries hereof, are hereby specifically granted the authority to enforce the provisions of this Declaration pursuant to the Clean Water Act Section 404 and the Rivers & Harbors Act of 1899, Section 10, and implementing regulations. Appropriate remedy for violation of this section is contemplated to include injunctive relief to restrain such violation. However, no violation of this covenant shall result in a forfeiture or reversion of title. It shall not be a defense, for purposes of this covenant, that the conservation functions and services of the property were impacted without the owner's knowledge or consent. The property was offered and accepted as mitigation and is therefore subject to the contractual terms of the permitting instrument and this Declaration. Loss of conservation functions and services shall not be required to be replaced if damage is due to "acts of God" as is generally referenced, so long as there has been completion of the mitigation requirements of the permitting instrument as to restoration, enhancement, establishment and monitoring. In any enforcement action, an enforcing agency shall be entitled to a complete restoration for any violation, as well as an award of agency attorneys' fees. 9. Written Notice of Legal Action against Property. Pursuant to the Clean Water Act the District Engineer, c/o Office of Counsel, United States Department of the Army, Corps of Engineers, Rock Island District, Rock Island, Illinois, shall be provided with a 60 -day advance written notice of any legal action concerning this covenant, or of any action to extinguish, void or modify this covenant, in whole or in part. The restrictive covenant is intended to survive foreclosure, tax sales, bankruptcy proceedings, zoning changes, adverse possession, abandonment, condemnation and similar doctrines or judgments affecting the property. A copy of this recorded document shall accompany said notice. 10. Eminent Domain. It is the intent of this conservation covenant that the aquatic resources it protects shall not be altered or impacted by eminent domain. However, if any or part of the protected property is taken by exercise of the power of eminent domain, so as to terminate this covenant, in whole or in part, USACE shall be given 60 -day notification for the purpose of providing the condemnor and the court authorizing the action, with the value and cost of the consequential damages or the costs of replacement in kind of the ecological units and the conservation functions, services and values of Clean Water Act jurisdictional or non - jurisdictional mitigation on the property. Subject to approval by the USACE, options for replacement of consequential environmental impacts due to eminent domain are governed by the CWA Section 404 or the Rivers & Harbors Act of 1899 Section 10 and thcirits implementing regulations. Options for payment of consequential damages to waters of the United States impacted by the eminent domain taking may include: (1) Re- recordation of the USACE model Declaration of Conservation Covenants and Restrictions on the property signed by the new owner thereby preserving the existing waters of the U.S and thcirits buffers on the site without impact; (2) payment of funds sufficient for the acquisition and protection of alternative real property providing equivalent conservation functions, services and values of wetlands, streams, creeks, shorelines, other waters of the U.S. and thcirits buffers; or (3) if available, the option to fund the purchase of conservation mitigation credits from an authorized wetland /stream mitigation bank sufficient to replace the conservation mitigation functions, services and values of the wetlands, streams, creeks, shorelines, and other waters of the U.S. and thcirits buffers; (4) payment of funds to an in -lieu fee mitigation wetlands /streams trust account approved by the USACE in an amount sufficient to purchase and protect alternative real property in the same hydrologic watershed that would provide the equivalent mitigation conservation functions, services and values, as the property impacted by eminent domain; or (5) Any other alternative consequential damages aquatic conservation mitigation as may be approved by USACE in compliance with the regulations and requirements. Failure for the proponent to provide consequential damages through alternative mitigation due to impact to aquatic resources protected under the CWA associated with eminent domain shall be referred to the U.S. Justice Department for action. 11. Recordation of Instrument. Declarant shall execute and record this instrument in timely fashion in the official records of the Office of the Clerk of the County in which this Property lies and shall provide the USACE with a copy of the recorded covenant and exhibits. Declarant may re- record this instrument at any time as may be required to preserve its rights. 12. Severability Provision. Should any separable part of these Restrictive Covenants be held contrary to law, the remainder shall continue in full force and effect. IN THE PRESENCE OF: Printed Name: By: Printed Name: Title: , Declarant State of Iowa ) ss.: County of Dubuque ) On this day of in the year , before me personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed in the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.