HomeMy WebLinkAboutFebruary 26, 2017 Declaration of Restrictive Covenants for Conservation DECLARATION OF RESTRICTIVE COVENANTS FOR CONSERVATION
THIS DECLARATION OF RESTRICTIVE COVENANTS FOR
CONSERVATION is made this-k day of FRJP. ,2017,by the City of Jeffersonville,
500 Quartermaster Court,Jeffersonville,Indiana 47130 ("Declarant").
RECITALS
WHEREAS, Declarant is the sole owner in fee simple of certain real property located in
Clark County, Indiana, as described by the Office of the Clark County Clerk, as Survey No. 34
of the Illinois Grant, City of Jeffersonville, Clark County, Indiana Instrument 200626425 and
Instrument 200626427, 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-2005-00901 ("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 Water
Quality Certification (No. 2005-422-10.JWR-A) ("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 and preserve aquatic habitats, riparian
buffers, and uplands 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.
Declaration of Restrictive Covenontsfor Conservation February 2017
Jeffersonville Meadows Drainage Mitigation
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
otherwise disposed of and used subject to the rights of access and entry provision and property
transfer provision of 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 entities having or hereafter acquiring any right,title,
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 10 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 and preserved pursuant to the Mitigation
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 Mitigation Plan. The term "Mitigation Plan" shall mean the Conceptual
Mitigation Plan approved by the Permit and Certification, as amended by the approved Remedial
Plan dated July 30,2013.
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 and any activities allowed in accordance with the
Mitigation Plan and applicable law:
4.1 General/Toporaphy. 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
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Declaration of Restrictive Covenants for Conservation February 2017
Jeffersonville Meadows Drainage Mitigation
discharge or activity requiring a permit under applicable clean water or water pollution control
laws and regulations,as amended.
4.3 Trees/Vegetation. 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 (i) the right to use the Property
for all purposes not inconsistent with the purposes of these restrictive covenants and (ii)the right
to perform all activities allowed and contemplated in the Mitigation Plan and applicable law.
Further, and without limitation to the generality of the foregoing, the Declarant expressly
reserves for itself, its heirs, executors, administrators, permittees, guests, contractors,
subcontractors, 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
in the Mitigation Plan,applicable law or otherwise:
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Dedaration of Restrictive Covenants for Conservation February2017
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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
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 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 Signs. 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
construction, management, mitigation and other measures required under the Mitigation Plan or
otherwise required under law.
6. Discretionary Consent. Declarant shall provide not less than sixty (60) days' notice to
Corps and IDEM before undertaking any activities that(i)are not expressly contemplated herein,
and(ii)may reasonably be expected to have a material adverse impact on the Natural Condition
of the Property. Such notice shall be in writing and shall describe the proposed activity in
sufficient detail to allow the Corps and IDEM to judge the consistency of the proposed activity
with the purpose of this Declaration. If the proposed activity is deemed desirable by Corps and
IDEM and is approved in writing by the Corps and IDEM, then Declarant may, in its sole
discretion, undergo such approved activity. Notwithstanding the foregoing, Declarant has no
power to agree to any activity that would allow for residential, commercial or industrial activities
that are not provided for in the Mitigation Plan or are inconsistent with the purpose of this
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Declaration of Restrictive Covenants for Conservation Februag2017
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Declaration. If within sixty(60) days of the Corps' and IDEM's receipt of Declarant's notice of
proposed activity, the Corps and IDEM provide no response to such notice, then Declarant's
proposed activity(ies)shall be deemed acceptable to the Corps and IDEM;provided,however, in
no event shall consent or approval be deemed given for any activity on the Property which
Declarant has no power to agree to as set forth in the preceding sentence.
7. 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 Mitigation Plan or take corrective
measures under the Mitigation 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.
8. Enforcement. The Declarant grants the Corps and IDEM, as third parry 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
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 or Certification. 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.
9. Notice to Government.
9.1 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.
9.2 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.
14. 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:
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Declaration of Restrictive Covenants for Conservation February 2017
Jeffersonville Meadows Drainage Mitigation
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] as Survey No. 34 of the Illinois Grant, City of
Jeffersonville, Clark County, Indiana Instrument 200626425 and Instrument 200626427,
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.
11. Warranties.
11.1 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.
11.2 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;
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Declaration of Restrictive Covenants for Conservation February 2017
Jeffersonville Meadows Drainage Mitigation
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.
12. 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):
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
13. 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 404 of the Clean Water Act. There shall be no obligation to allow an
amendment.
14. 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 Mitigation 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.
15. 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
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Declaration of Restrictive Covenants for Conservation February 2017
Jeffersonville Meadows Drainage Mitigation
copy of the recorded Declaration and exhibits. Declarant may re-record this instrument at any
time as may be required to preserve its rights.
16. 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.
17. 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.
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 / A
,./'
By: 2�� IL
Mr.Bil Burns
Parks Authority President
Z
Date
STATE OF INDIANA)
)ss:
COUNTY OF CLARK)
On this �`1ti day of c k't 4 t. , 2417, before me, a Notary Public in
and for said County and State,personally appeared �( Q y r A3 ,personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument,and acknowledged to me that[he/she]executed same for the
purposes contained therein.
WITNESS my hand and official seal.
NOTARY PUBLIC
_meq � 2.0 la
My commission expires:
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Declaration of Restrictive Covenants for Conservation February 2017
Jeffersonville Meadows Drainage Mitigation
THIS INSTRUMENT PREPARED BY:
Ronald L.Thomas (date)
Redwing Ecological Services,Inc.
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Declaration of Restrictive Covenants for Conservation February 2017
Jeffersonville Meadows Drainage Mitigation
EXHIBIT A
PROPERTY LEGAL DESCRIPTION
Declaration of Restrictive Covenants for Conservation February 2017
Jeffersonville Meadows Drainage hfltigation
EXHIBIT B
PROPERTY SURVEY
JL
acobi, Toombs & Lanz, Inc.
Consulting Engineers& Land Surveyors
EXHIBIT"A"
DESCRIPTION OF
PRESERVED MITIGATION AREA
A tract of land located in Survey No. 34 of the Illinois Grant, City of Jeffersonville, Clark County,
Indiana, being a part of the tracts conveyed to the City of Jeffersonville by Instrument 200626425
and Instrument 200626427,being further described as follows:
Commencing at a stone marking the south comer of Lot 425 in The Meadows,Unit 4,Plat Book 9,
Page 3,and being on the northwesterly right-of-way line of the CSX Railroad (formerly the B&O);
thence along said right-of-way line, South 44°11'26" West, 359.53 feet to the TRUE POINT OF
BEGINNING;
Thence,continuing along said right-of-way line,South 44'11'26"West, 1418.27 feet to a steel pin
with cap on the northeasterly line of Kingsfield Subdivision,Section Four,Plat Book 11,Page 35;
thence along said line,North 34°52'14"West,193.18 feet;thence leaving said line,North 55°02'16"
East,70.86 feet;thence North 34°57'44"West,597.73 feet;thence North 55°0216"East,151.08
feet;thence North 56°05'10"East,593.07 feet;thence South 40°21'06" East,1.93 feet;thence South
76°36'26"East,46.12 feet;thence North 65°45'36"East,43.96 feet-,thence North 51°53'43"East,
104.15 feet;thence North 53°45'31"East,256.17 feet;thence North 54°06'18"East,33.50 feet;
thence South 33°33'10" East,263.18 feet;thence South 63°09'22"East,246.73 feet to the True
Point of Beginning.
Containing 800,661 Sq.Ft.,OR 18.381.acres,more or less,and being subject to existing easements.
CERTIFIED BY:
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N0.LS
Stephen L.Marshall,13.1-S.No.20000204 Date = 20000204
STATE OF '
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New Albany,IN 47150 Louisville,KY 40208 Indianapolis,IN 46204 Clarksville,IN 47129
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