Dubuque Regional Airport_Declaration of Conservation Covenents and Restriction 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 28, 2011
Dubuque
kettil
Ail- AmedcaCily
11111 '
2007
Airport Manager Bob Grierson recommends disposition 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.
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 and 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.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Robert A. Grierson, Airport Manager
2
NOTICE OF A PUBLIC
NEARING OF THE
CRY COUNCIL OF
THE CRY OF
DUBUQUE, IOWA. ON
OF THE
Cx S NITEREST IN
ESTATE CORTADI REAL
DUSUQUEREGNHiAL
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 Build-
ing. 350 W. 6th Street.
Dubuque, Iowa, at
which meeting the City
Council proposes to
take action disposing
of the City's Interest by
Conservation Cove-
nants 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
' /+) of the Section 26,
and in the Northwest
quarter (NW ' /•) 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 Cove-
nants 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 objec-
tions have been
received and consid-
ered, the City Council
may at this meeting or
at any adjournment
thereof, take additional
action for the dis-
position 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, lowa, as
provided by Iowa Code
§ 364.7.
Dated this 23rd day of
September, 2011
Kevin S. Flrnstahl, City
Clerk of Dubuque, lowa
1t 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 $23.74.
Subscribed to before me, a L ary Public in and for Dubuque County, Iowa,
this day o
,20 // .
otary Public in and for Dubuque County, Iowa.
MARY K. WESTERME'
Commission Number 154
Co- ^,.. _ c E6, 2
Masterpiece 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
aI- anedaccy
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.
Mich I C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Robert A. Grierson, Airport Manager
THE CITY OF
Dui
Masterpiece on the Mississippi
To: Michael C. Van Milligen, City Manager 4
From: Robert A. Grierson, Airport Manager
Date: September 13, 2011
Subject: Dubuque Regional Airport Conservation Easement
INTRODUCTION
Dubuque
Ali-America City
1 1 1 1 If
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 use 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
Doc ID 007168480037 Type GEN
Kind RESTRICTIVE COVENANTS
Recorded: 10/05/2011 at 03:36:50 PM
Fee Amt: $187.00 Page 1 of 37
Dubuque County Iowa
Kathy Flynn Thurlow Recorder
Fi1e2011- 00014393
Prepared by Robert Grierson, Manager, Dubuque Regional Airport, 11000 Airport Road, Dubuque, IA 52003, 563.589.4234
Return to Kevin S. Firnstahl, City Clerk, 50 W. 13th Street, Dubuque, IA 52001, 563.589.4100
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 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. Transfers, Amendments, & Extinguishment. 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,
their 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; however, the following special provision shall be included:
A) The property is part of an aviation facility. Should future studies by the Federal Aviation
Administration (FAA) determine a need for alteration or impact to the property then the City of
Dubuque and the USACE, or its successor in administration of the Clean Water Act, shall find
agreeable terms for the amending or extinguishment of this covenant. An extinguishment of this
covenant shall result in the (1) 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 their buffers; or (2) 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 their buffers; (3) 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. Extinguishment of this covenant shall be completed
as part of a permitted process through the USACE, or its successor in administration of the Clean
Water Act.
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 the posting of no
trespassing signs, temporary signs indicating the property is for sale, signs identifying the
conservation values of the property and /or signs identifying the owner of the property, and signs
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 and its
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
its 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 its respective agents, its 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 their successors, 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 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 condemner 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 and its implementing regulations. Options for
payment of consequential damages to waters of the United States impacted by the eminent domain
taking may include: (1) lie- 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 its 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 its 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 their
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.
City of Dubuque, Declarant IN THE PRESENCE • F
trl dr. ■
By:. D. Buol Kevin rnstahl
Title: City Clerk
Title: Mayor
State of Iowa
) ss.:
County of Dubuque
On this 3rd day of October in the year 2011 before me personally
appeared Roy D. Buol
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 he individual acted, executed the
instrument.
SUSAN COMMIS ON HINTER
MY COMM /5S /ON' 183,274
2/14/14
EXF /AES