HomeMy WebLinkAboutRESTRICITVE COVENANTS FOR CONSERVATION VISSING PARK REDWING. . , TRANSMITTAL COVER SHEET
Ron Thomas
1139 South Fourth Street Date: August 2, 2016
Louisville,KY 40203
Attention: Andy Crouch, PE
City Engineer
Phone: 502.625.3009 City of Jeffersonville
Fax: 502.625.3077 500 Quartermaster Court
Jeffersonville, IN 47130
Email:rthomas(cDredwing.win.net
Andy,
Pease find attached the final version of the Declaration of Restrictive
Covenants for Conservation for the Vissing Park project. The
document needs to be signed by Bill Burns and notarized on page 8.
Then it needs to be recorded at the county clerk's office.
If you would provide me with a copy of the recorded document, I'll
pass it on to the agencies with this year's annual report.
Please give me a call if you have any questions.
Thanks,
J ,
Ron
Attachments: Declaration of Restrictive Covenants for Conservation
(August 2016)
DECLARATION OF RESTRICTIVE COVENANTS FOR CONSERVATION
THIS DECLARATION OF RESTRICTIVE COVENANTS FOR
CONSERVATION is made thi5ql`7 day 0" — 2016, by the City of Jeffersonville, 500
Quartermaster Court, Jeffersonville, Indiana 4 130 ("Declarant").
RECITALS
WHEREAS, Declarant is the sole owner in fee simple of certain real property located in
Clark County, Indiana, as described in Deed Drawer 5, Instrument 8527, in the Office of the
Clark County Clerk, and as more particularly described in legal description attached hereto as
Exhibit A and shown on the platted survey attached hereto as Exhibit B, both of which are
incorporated herein by reference ("Property");
WHEREAS, the discharge of dredged and/or fill material into jurisdictional waters of the
United States, including wetlands and streams, pursuant to Sections 404 of the Clean Water Act,
requires compensatory mitigation; and
WHEREAS, as compensatory mitigation under Federal law for and in consideration of
Department of the Army Permit No. LRL-2010-1073-anr ("Permit") issued by the U.S. Army
Corps of Engineers, Louisville District ("Corps") pursuant to Section 404 of the Clean Water Act
(33 U.S.C. §1344) and/or Section 10 of the Rivers and Harbors Act (33 U.S.C. §403), and
Restoration Plan Approval (No. 2010-572-10-DDC-V) ("Certification") issued by the Indiana
Department of Environmental Management ("IDEM"), pursuant to Section 401 of the Federal
Water Pollution Control Act (33 U.S.C. 1341) and Indiana Water Pollution Control Board rule
327 IAC 2-1-6, and in recognition of the continuing benefit to the permitted property, and for the
protection of waters of the United States and scenic, resource, environmental, and other
conservation values, Declarant has agreed to restore aquatic habitats and riparian buffers and
place certain restrictive covenants on the Property in order that the Property shall remain
substantially in its natural condition forever, and to grant a right of access and entry to the
Property;
NOW THEREFORE, in consideration of the benefits to be derived by the Declarant and
each and every subsequent owner and occupant of the Property, and as required mitigation for
the discharge of dredged and/or fill material into waters of the United States, as authorized by the
Permit and Certification, Declarant hereby makes this Declaration on the terms and conditions
stated below.
1. Purpose. The purpose of this Declaration of Restrictive Covenants is to restrict the
current and future use of the Property in perpetuity in order to protect aquatic resource functions
and values, scenic, resource, environmental, and other conservation values, and conservation
functions and ecological services; to establish the Property as open, common, and undeveloped
conservation area; and to preserve the natural condition of the Property in perpetuity.
2. Covenant Running with the Land. Declarant hereby declares that the Property shall be
bound by, held, transferred, sold, conveyed, leased, improved, hypothecated, occupied or
Declaration of Restrictive Covenants for Conservation August 2016
Vissing Park Stream Restoration
otherwise disposed of and used subject to the following restrictive covenants, which shall be
perpetual and run with the land and be binding on all the Declarant's heirs, executors,
administrators, successors, assigns (which are included in the term "Declarant" below), lessees,
or other persons, firms, associations, corporations, or governmental or other entities having or
hereafter acquiring any right or interest in said Property or any part thereof. The terms and
conditions of the following restrictive covenants shall be both explicitly and implicitly included
in any subsequent transfer, conveyance, or encumbrance affecting all or part of the Property.
Any such transfer, conveyance or encumbrance shall set forth the terms and conditions of this
document by reference to this document and its recorded location in accordance with paragraph 9
of this Declaration.
3. Definitions.
3.1 Natural Condition. The term "natural condition" shall mean the condition of the
Property at the time of the declaration and as restored, created, enhanced, and preserved pursuant
to the approved Final Restoration Plan. The natural condition shall be evidenced in part by a
surveyed plat of the Property recorded in the deed records office for each county in which the
Property is situated which shows all relevant property lines, all existing man-made
improvements and features, and major, distinct natural features such as waters of the United
States and is attached hereto as Exhibit B; The natural condition of the Property may also be
evidenced by:
(a) A current aerial photograph of the Property at an appropriate scale taken as close as
possible to the date the declaration is made; and
(b) On-site photographs taken at appropriate locations on the Property, including major
natural features.
3.2 Final Restoration Plan. The term "Final Restoration Plan" shall mean the plan
approved by the Permit and Certification.
4. Restrictions/Prohibitions. Any activity on, or use of, the Property, which is or may
become inconsistent with the purposes of this Declaration is prohibited. Without limiting the
generality of the foregoing, the following activities are expressly prohibited except as provided
for in the Declarant's Reserved Rights:
4.1 General/Topography. There shall be no filling, flooding, cultivating, excavating,
earthmoving, grading, mining or drilling; no removal of natural materials; no dumping of
materials; and no alteration of topography in any manner.
4.2 Waters and Wetlands. There shall be no draining, ditching, diking, dredging,
channelizing, damming, pumping, or impounding; no changing the grade or elevation, impairing
or diverting the flow or circulation of waters, or reducing the reach of waters; and no other
discharge or activity requiring a permit under applicable clean water or water pollution control
laws and regulations, as amended.
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4.3 Trees/Ve eta. There shall be no clearing, burning, cutting, mowing or
destroying of trees or vegetation.
4.4 Non-Native/Exotic Species. There shall be no introduction of non-native or
exotic species to the Property.
4.5 Uses. There shall be no agricultural, commercial, or industrial activity undertaken
or allowed on the Property, including but not limited to grazing and mining. There shall be no
horseback riding, whether on or off an established trail.
4.6 Structures. There shall be no construction, erection, or placement of buildings,
billboards, signs, or any other temporary or permanent structure, nor any additions to existing
structures.
4.7 Roads. There shall be no construction or building of new roads, trails, or other
rights of way without the prior written approval by the Corps and IDEM.
4.8 Off Road Vehicles. There shall be no use of off road vehicles, 4-wheel drive
vehicles, all-terrain vehicles, snowmobiles, or other types of motorized recreational vehicles
except on existing roads and except as necessary to manage the Property.
4.9 Utilities. There shall be no construction or placement of utilities or related
facilities without the prior written approval of the Corps and IDEM.
4.10 Waste. There shall be no placement of refuse, wastes, sewage, dredged spoil,
solid waste, incinerator residue, garbage, sewage sludge, munitions, chemical waste, biological
materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, or
industrial, municipal, or agricultural waste on the Property.
4.11 Pest Control. There shall be no application of pesticides or biological controls,
including but not limited to insecticides, fungicides, rodenticides and herbicides, without prior
written approval from the Corps and IDEM.
5. Reserved Rights. Notwithstanding the foregoing Restrictions, the Declarant reserves for
itself, its heirs, executors, administrators, successors and assigns the right to use the Property for
all purposes not inconsistent with the purposes of these restrictive covenants. Further, the
Declarant expressly reserves for itself, its heirs, executors, administrators, successors, and
assigns the following rights, which may be exercised upon providing 30 days prior written notice
to the Corps and IDEM, except where expressly provided otherwise:
5.1 Wildlife and Forestry Management. Declarant reserves the right to naturally
manage the Property to preserve and improve the existing forest and wildlife resources.
Declarant reserves the right to remove or trim vegetation hazardous to persons or property, and
harvest and manage timber downed or damaged due to natural forces, such as fire, storms,
insects, or infectious organisms, to the extent necessary to protect the environment. Such
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management activities shall be carried out in accordance with Best Management Practices as set
out by the U.S. Forest Service.
5.2 Landscape Management. Declarant reserves the right to undertake landscaping
necessary to prevent severe erosion or damage to the Property or portions thereof, or significant
detriment to existing or permitted uses; to the extent such landscaping is consistent with
preserving the natural condition of the Property.
5.3 Recreation. Declarant reserves the right to engage in outdoor, non-commercial
recreational activities, including hunting, fishing, and similar recreational or educational
activities, consistent with cumulatively very small impacts and with the continuing natural
condition of the Property, but excluding planting and burning. This includes construction of
walking trails and associated appurtenances that minimize tree clearing and do not involve
impacts to jurisdictional waters of the U.S. No prior written notice to the Corps and IDEM is
required.
5.4 Road Maintenance. Declarant reserves the right to maintain existing roads, trails,
or other rights of way. Maintenance shall be limited to: removal or pruning of dead or hazardous
vegetation; application of permeable materials (e.g., sand, gravel) necessary to correct or impede
erosion; grading; replacement of culverts, water control structures, or bridges; and maintenance
of roadside ditches.
5.5 Sims. Declarant reserves the right to erect signs on the Property to mark the
Property as a protected area and to convey information on restricted use of the Property
including no trespassing signs, no mowing signs, temporary signs indicating the Property is for
sale, signs identifying the trees, vegetation, wetlands or conservation ecological services of the
Property, and signs identifying the owner.
5.6 Mitigation Measures. Declarant reserves the right to undertake restoration and
mitigation measures required under the Final Restoration Plan or otherwise required under law.
6. Rights of Access and Entry. The Declarant grants the Corps, IDEM and their
authorized agents an irrevocable and assignable right to enter in, on, over and across the Property
to inspect and monitor the Property; to implement the Final Restoration Plan or take corrective
measures under the Final Restoration Plan; to take any actions necessary to maintain or restore
the natural condition of the Property; or to take any actions necessary to verify compliance with
these restrictive covenants. No rights of access or entry to or use of any portion of the Property
is granted or conveyed to members of the general public by these restrictive covenants.
7. Enforcement. The Declarant grants the Corps and IDEM, as third party beneficiary
hereof, a discretionary right to enforce these restrictive covenants in a judicial action against any
person or other entity violating or attempting to violate these restrictive covenants; provided,
however, that no violation of these restrictive covenants shall result in forfeiture or reversion of
title. In any enforcement action for violations of this Declaration, an enforcing agency shall be
entitled to complete restoration of the Property for any violation, as well as any other remedy
available under law or equity, such as injunctive relief and administrative, civil or criminal
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Declaration of Restrictive Covenants for Conservation August 2016
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penalties. No omission or delay in acting by the Corps or IDEM shall bar subsequent
enforcement rights or constitute a waiver of any enforcement right. These enforcement rights are
in addition to, and shall not limit, enforcement rights available under other provisions of law or
equity, or under any applicable permit or certification. Nothing herein shall limit the right of the
Corps or IDEM to modify, suspend, or revoke the Permit. Nothing herein shall be construed to
authorize the Corps or IDEM to institute proceedings against the Declarant for changes to the
Property due to acts of God, natural disasters, or unauthorized acts of third parties outside the
control of the Declarant, so long as the approved restoration is completed and determined by the
Corps and IDEM to be successful in accordance with the Final Restoration Plan.
8. Notice to Government.
8.1 Any permit application, or request for certification or modification, which may
affect the Property, made to any government entity with authority over wetlands
or other waters of the United States, shall expressly reference and include a copy
(with the recording stamp) of these restrictive covenants.
8.2 The Declarant shall provide the Corps and IDEM with written notice of any legal
action affecting this Declaration, including but not limited to foreclosure
proceedings, tax sales, bankruptcy proceedings, zoning changes, adverse
possession, abandonment, condemnation proceedings, and the exercise of the
power of eminent domain. For any action that might result in this Declaration
being voided or modified, such notice shall be provided at least 60 days before
such action would be taken.
9. Property Transfers. The Declarant shall include the following notice on all deeds,
mortgages, plats, or any other legal instrument used to convey any interest in the Property:
NOTICE: This Property is subject to a Declaration of Restrictive Covenants for
Conservation dated [insert date of Declaration], recorded in the Clark County Clerk's
Office on [insert date recorded] in Deed Drawer 5, Instrument 8527 and enforceable by
the U.S. Army Corps of Engineers and Indiana Department of Environmental
Management.
The Declarant shall provide the Corps and IDEM with written notice of any transfer 60 days
prior to such transfer. The notice shall include the name, address, and telephone number of the
prospective transferee, a copy of the proposed deed or other documentation evidencing the
conveyance, and a survey map that shows the boundaries of the portion of the Property being
transferred. Failure to comply with this paragraph does not impair the validity or enforceability
of these restrictive covenants.
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10. Warranties.
10.1 The Declarant represents and warrants that:
A. The Declarant is the sole owner of the Property and holds fee simple title which
is free and clear of any and all liens, loans, claims, restrictions, easements and
encumbrances, except as otherwise identified in Exhibit B hereto;
B. The Declarant has identified all other parties that hold any interest (e.g.
encumbrances) in the Property and has notified such parties of the Declarant's
intent to grant this Declaration;
C. This Declaration will not materially violate or contravene or constitute a
material default under any other agreement, document, or instrument to which the
Declarant is a party, or by which the Declarant may be bound or affected;
D. This Declaration will not materially violate or contravene any zoning law or
other law regulating use of the Property; and
E. This Declaration does not authorize a use of the Property that is otherwise
prohibited by a recorded instrument that has priority over the Declaration.
10.2 The Declarant represents and warrants that, to the best of its knowledge:
A. No substance defined, listed, or otherwise classified pursuant to any federal,
state, or local law, or regulation, as hazardous, toxic, polluting, or otherwise
contaminating to the water or soil, has been released, generated, treated, stored,
used, disposed of, deposited, abandoned, or transported in, on, from, or across the
Property;
B. There are no underground storage tanks located on the Property whether
presently in service or closed, abandoned, or decommissioned;
C. The Property is in compliance with all federal, state, and local laws, regulations,
and permits and there is no pending or threatening litigation in any way affecting,
involving, or relating to the Property and its use; and
D. The Property is not land-locked and there is access to the Property by road,
dedication of pathway or by an access easement.
11. Notification. Any notice, request for approval, or other communication required by
these restrictive covenants shall be sent by registered mail, pre-paid postage, to the
following addresses (or such addresses as may be hereinafter specified by notice pursuant
to this paragraph):
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Declaration of Restrictive Covenants for Conservation August 2016
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To Declarant: City of Jeffersonville
500 Quartermaster Court
Jeffersonville, Indiana 47130
To Corps: U.S. Army Corps of Engineers
OP-FN, Room 752
P.O. Box 59
Louisville, KY 40201-0059
To IDEM: Indiana Department of Environmental Management
100 North Senate Avenue
Indianapolis, IN 46204
12. Amendment. After recording, these restrictive covenants may only be amended by a
recorded document signed by the Corps, IDEM and Declarant. Amendment shall be allowed at
the discretion of the Corps and IDEM, in consultation with resource agencies as appropriate, and
then only in exceptional circumstances. Any amendment must be consistent with the
requirements of Sections 401 and 404 of the Clean Water Act. There shall be no obligation to
allow an amendment.
13. Termination. This Declaration is intended to be perpetual in nature and run with the
land as set forth in paragraph 1 of this Declaration. However, if the Corps or IDEM determines
that the compensatory mitigation undertaken on the Property set forth in the Final Restoration
Plan is not successful and the alternative mitigation identified does not involve the Property, then
the Declarant, Corps and IDEM may terminate this Declaration by written agreement.
14. Recording. Declarant shall record this Declaration in the official property records of the
Office of the Clark County Clerk within thirty (30) days of execution of this Declaration by the
Declarant, and shall, within thirty (30) days of recording, provide the Corps and IDEM with a
copy of the recorded Declaration and exhibits. Declarant may re-record this instrument at any
time as may be required to preserve its rights.
15. Successors in Interest. All references to the Corps and IDEM shall include successor
governmental agencies, departments, or divisions, or any other successor entities prescribed by
law.
16. Severability Provision. Should any separable part of these restrictive covenants be held
contrary to law, unenforceable, or void, the remainder shall continue in full force and effect.
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Declaration of Restrictive Covenants for Conservation August 2016
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IN WITNESS WHEREOF, the Declarant has duly executed this Declaration effective on
the date first written above, but actually on the date set forth below.
DECLARANT
By:
[Mr. BiJ Burns]
[Parks Authority President]
9
Date
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On this day o2E , a is in
mT=r ved t / PVt(jPn(P� t be the person whose name is
s i m instrument, and acknow a ge o the
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WITNESS my hand and official seal.
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THIS STRUMENT PREPARED BY:
onald L. Thomas (date)
Redwing Ecological Services, Inc.
8
Declaration of Restrictive Covenants for Conservation August 2016
Vissing Park Stream Restoration
EXHIBIT A
PROPERTY LEGAL DESCRIPTION
■
Jacobi, Toombs & Lanz, Inc.
Consulting Engineers&Land Surveyors
EXHIBIT "A"
DESCRIPTION OF
MITIGATION RESERVATION DEED RESTRICTION
A tract of land located in Survey No. 13 of the Illinois Grant, City of Jeffersonville, Clark County,
Indiana, being a part of the tract of land conveyed to Department of Parks and Recreation of the
City of Jeffersonville Deed Drawer 5, Instrument 8527,being further described as follows:
Commenting at the vest corner of Survey No. 13 being the north corner of Survey No. 12 and on
the southeasterly line of Survey No. 22; thence along the line dividing said Survey Nos. 13 and 22,
North 54°39'54" East, 1184.83 feet to a stone at the west comer of said tract; thence along the
southwesterly line of said Department of Parks and Recreation tract, South 35°2736" East, 244.85
feet to the TRUE POINT OF BEGINNING;
Thence North 00°25'35" East, 34.40 feet;thence North 14°34'20" East, 68.07 feet; thence North
28°56'12" East, 86.32 feet;thence North 46°58'01" East, 52.92 feet;thence North 62°29'15" East,
42.52 feet; thence South 84°40'00" East,23.84 feet;thence North 62°59'25" East, 96.57 feet;thence
North 85°57'10" East, 148.85 feet; thence North 44°34'20" East, 112.46 feet;thence North
48°04'20" East, 24.38 feet;thence North 07°50'06" West,40.07 feet;thence North 37°20'13" East,
36.32 feet;thence North 04°44'09" East, 14.27 feet;thence North 09°30'37" East, 63.48 feet;thence
North 32°00'44" East, 165.21 feet; thence South 55°43'17" East, 75.00 feet;thence South 15°01'22"
West,90.97 feet;thence South 13°09'12"West, 68.33 feet;thence South 04°44'09" West, 65.38 feet;
thence South 37°20'13"West,21.50 feet;thence South 07°58'23" West,48.64 feet; thence South
38°21'11" West, 78.49 feet;thence South 49°05'40" West, 125.46 feet;thence South 59'04'15" West,
123.58 feet;thence South 81°49'54" West, 173.80 feet;thence North 84°40'00" West, 19.97 feet;
thence South 46°58'01" West, 10.85 feet;thence South 28°56'12" West, 52.16 feet; thence South
21052'58"West, 39.00 feet;thence South 1604854"West, 132.75 feet to the southwesterly line of
said tract; thence North 35°27'36" West, 132.35 feet, to the True Point of Beginning.
Containing 122,530 Sq. Ft., OR 2.813. acres,more or less.
..........
CERTIFIED BY:
NO,
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Corporate Kentucky Central Indiana Southern Indiana
1829 E.Spring Street,Suite 201 1400 South l°Street 1060 N.Capital Ave,Ste E360 124 Bell Ave
New Albany,IN 47150 Louisville,KY 40208 Indianapolis,IN 46204 Clarksville,IN 47129
812-945-9585 502-583-5994 317-829-3474 812-288-6646
812-945-6656 Fax 502-583-7321 Fax 317-829-3473 Fax 812-945-9585 Fax
Declaration of Restrictive Covenants for Conservation August 2016
Pissing Park Stream Restoration
EXHIBIT B
PROPERTY SURVEY
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