Amendment to Dubuque County Historical Lease2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Amendment to Ice Harbor Lease with Dubuque County Historical Society
and Consent to Grant of Conservation Easement
DATE: October 1, 2008
City Attorney Barry Lindahl is recommending approval of an Amendment to the Ice
Harbor Lease with the Dubuque County Historical Society and Consent to Grant a
Conservation Easement.
The Dubuque County Historical Society has requested the City to consent to a
conservation easement for property in the Ice Harbor where the William M. Black is
located in connection with a Save America's Treasure Grant for the William M. Black.
Part of the property for which the conservation easement has been requested lies
outside the current lease boundary. In order for Dubuque County Historical Society to
grant the conservation easement, to which the City must consent, it is necessary for the
lease boundary to be expanded.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Ci
G~
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
THE CITY OF DUBUQUE
Masterpiece on the Mississippi
MEMORANDUM
BARRY LINDAHL
CITY ATTORNEY
TO: Michael C. Van Milligen
City Manager
DATE: September 23, 2008
RE: Amendment to Ice Harbor Lease with Dubuque County Historical Society
and Consent to Grant of Conservation Easement
Dubuque County Historical Society has requested the City to consent to a conservation
easement for property in the Ice Harbor where the William M. Black is located in
connection with a Save America's Treasure Grant for the William M. Black. A copy of
the conservation easement is enclosed.
Part of the property for which the conservation easement has been requested lies
outside of the current lease boundary. In order for Dubuque County Historical Society
to grant the conservation easement, to which the City must consent, it is necessary for
the lease boundary to be expanded.
Enclosed is a photo showing the current lease boundary in red and the proposed
conservation easement in green. The lease boundary will be redrawn to include the
additional area of the proposed conservation easement which is now outside the lease
area.
I recommend that the Resolution approving the proposed amendment to the lease be
approved by the City Council following the public hearing.
I also recommend the conservation easement by submitted to the City Council for
consideration and that the resolution authorizing consent to the easement by adopted.
BAL:tIs
Enclosure
cc: Laura Carstens, Planning Services Manager
Jerry Enzler, Executive Director, Dubuque County Historical Society
Alan Stache, Chief Operations Officer, Dubuque County Historical Society
F:\USERS\tsteckle\LindahlWgreements\Dubuque County Historical Society\MVM_DCHS3rdAmendmentTolceHarborLease_092308.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
THIRD AMENDMENT
TO LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE COUNTY HISTORICAL SOCIETY
This Third Amendment to Lease Agreement between the City of Dubuque,
Iowa and Dubuque County Historical Society is made as of this day of
2008.
WHEREAS, the City of Dubuque, Iowa (Lessor) and Dubuque County
Historical Society (Lessee) entered into a Lease Agreement (Lease) on June 5,
2000 for certain real property (Demised Premises) described in Exhibit A thereto;
and
WHEREAS, Lessor and Lessee amended the Lease by the First
Amendment to Lease Agreement which substituted a new description for the
Demised Premises; and
WHEREAS, Lessor and Lessee desire to again change the description of
Demised Premises in the Lease.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES
AS FOLLOWS:
1. Exhibit A to the Lease is hereby deleted and the attached Exhibit A
substituted in lieu thereof.
effect.
2. All other terms and conditions of the Lease shall remain in full force and
LESSOR:
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
Attest:
LESSEE:
DUBUQUE COUNTY HISTORICAL
SOCIETY
By:
Attest:
Jeanne F. Schneider
City Clerk
EXHIBIT A
LEGAL DESCRIPTION OF DEMISED PREMISES
MISSISSIPPI RIVER DISCOVERY CENTER
Lease Boundary
Legal Description
2008
Commencing at a point of reference at the most easterly corner of Lot 4 of Ice
Harbor Development in the City of Dubuque, Iowa, said point being the Point of
Beginning;
Thence S58°59'05"E 24.18 feet;
Thence S31 °01'22"W 251.98 feet;
Thence S83°45'38"W 133.50 feet;
Thence S31 °01'22"W 200.00 feet;
Thence S03°33'22"E 137.55 feet;
Thence S38°39'31 "W 100.00 feet;
Thence N46°50'14"W 111.13 feet;
Thence N39°07'47"W 82.79 feet;
Thence northwesterly 263.50 feet along 684.88 foot
northeasterly (Ch N11°05'10"W 261.88 feet);
Thence S88°19'44"W 16.57 feet;
Thence N06°46'12"E 284.89 feet;
Thence N07°17'33"E 176.85 feet;
Thence S83°09'25"E 56.83 feet;
Thence N06°50'35"E 12.67 feet;
Thence S83°09'25"E 126.52 feet;
Thence S58°59'05"E 5.30 feet;
Thence N85°37'10"W 23.56 feet;
Thence southwesterly 22.81 feet along a 15.00 foot
southeasterly (Ch S50°48'30"W 20.68 feet);
Thence S07°14'05"W 25.28 feet;
Thence southeasterly 34.72 feet along a 30.00 foot
northeasterly (Ch S25°55'20"E 32.82 feet);
Thence S59°04'45"E 54.03 feet;
Thence N29°58'30"E 8.47 feet;
Thence S58°59'40"E 340.35 feet;
Thence N30°59'00"E 25.38 feet;
Thence S59°01'00"E 10.36 feet;
Thence N30°59'00"E 37.06 feet to the Point of Beginning;
radius curve concave
radius curve concave
radius curve concave
2
The area of the above Lease is 6.089 acres, more or less, and subject to
easements of record and not of record. The basis of bearing for this description:
the northerly line of Lot 4 of Ice Harbor Development is assumed to bear
S58°59'05"E.
3
MISSISSIPPI RIVER
DISCOVERY CENTER
EXHIBIT A
THE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
Black Conservation Lease
Prepared by: Barry A. Lindahl, Corporation Counsel, 300 Main Street, Dubuque, IA 52001
(563) 583-4113
Return to: Jeanne F. Schneider, City Clerk, 50 West 13th Street, Dubuque IA 52001
RESOLUTION NO. 350-08
DISPOSING OF AN INTEREST IN REAL PROPERTY BY THIRD AMENDMENT TO
LEASE BETWEEN THE CITY OF DUBUQE, IOWA AND DUBUQUE COUNTY
HISTORICAL SOCIETY
WHEREAS, the City of Dubuque, Iowa (City) and Dubuque County Historical
Society (DCHS) entered into a Lease Agreement (Lease) on June 5, 2000 for certain
real property (Demised Premises) described in Exhibit A thereto; and
WHEREAS, City and DCHS amended the Lease by the First Amendment to
Lease Agreement which substituted a new description for the Demised Premises; and
WHEREAS, City and DCHS desire to again change the description of Demised
Premises in the Lease; and
WHEREAS, on October 6, 2008, the City Council pursuant to notice published as
required by law held a public hearing on its intent to dispose of the foregoing interest in
real property and overruled all objections thereto;
AND WHEREAS, the City Council finds that it is in the best interest of the City to
approve the disposition of such real property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City Council of the City of Dubuque, Iowa, approves the Third
Amendment to Lease Agreement attached hereto and the Mayor is hereby authorized
and directed to sign this Resolution and the Third Amendment to Lease Agreement.
WHEREAS, the City Council has tentatively determined that it would be in the best
interests of the City to approve the Third Amendment to the Lease Agreement with
DCHS.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
The City Council of the City of Dubuque, Iowa, approved and Third Amendment to
Lease Agreement attached hereto and the Mayor is hereby authorized and director to
sign this Resolution and the Third Amendment to Lease Agreement.
Passed, approved and adopted this 6th day of October, 2008
Roy D. Buol, Mayor
Attest: Jeanne F. Schneider, City Clerk
RESOLUTION NO. 351-08
APPROVING CONSENT TO THE GRANTING OF A CONSERVATION EASEMENT
AGREEMENT FOR PRESERVATION OF THE DREDGE WILLIAM M. BLACK AND
ITS APPURTENANT VESSELS BY DUBUQUE COUNTY HISTORICAL SOCIETY TO
THE HISTORICAL DIVISION OF THE IOWA DEPARTMENT OF CULTURAL
AFFAIRS
WHEREAS, the City of Dubuque, Iowa (City) and Dubuque County Historical
Society (DCHS) entered into a Lease Agreement (Lease) on June 5, 2000 for certain
real property (Demised Premises) described in Exhibit A thereto; and
WHEREAS, DCHS has requested that City consent to the granting of a
Conservation Easement for Preservation of the Dredge William M. Black and Its
Appurtenant Vessels (the Conservation Easement) by DCHS to the Historical Division
of the Iowa Department of Cultural Affairs for the purpose of preserving the Dredge
William M. Black and its appurtenant vessels, properties that are important culturally,
historically, and architecturally; and
WHEREAS, the Conservation Easement is a condition of the eligibility of DOHS
for the financial assistance from the National Park Service of the United States
Department of the Interior appropriated from the Historic Preservation Fund for the
Save America's.Treasures Grant Program; and
WHEREAS, the City Council finds that it is in the best interest of the City to consent
to the granting of the Conservation Easement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
The City Council of the City of Dubuque, Iowa, approves the consent to the
Conservation Easement for Preservation of the Dredge William M. Black and Its
Appurtenant Vessels attached hereto and the Mayor is hereby authorized and directed to
sign this Resolution and the Consent therein.
Passed, approved and adopted this 6th day of October, 2008.
Roy D. Buol, Mayor
Attest: Jeanne F. Schneider, City Clerk
CONSERVATION EASEMENT AGREEMENT
FOR PRESERVATION OF THE DREDGE WILLIAM M. BLACK AND ITS
APPURTENANT VESSELS
INTRODUCTION. This conservation easement agreement is made between
National Mississippi River Museum and Aquarium, acting through the Dubuque
County Historical Society, an Iowa non-profit corporation, as GRANTOR of a
conservation easement, and the Historical Division of the Iowa Department of
Cultural Affairs ("Historical Division"), as GRANTEE of the conservation easement.
This conservation easement agreement is entered under Iowa Code chapter 457A for
the purpose of preserving the Dredge William M. Black and its appurtenant vessels,
properties that are important culturally, historically, and architecturally.
1. The Subiect Property. This agreement creates a conservation easement in real
estate legally described as: Commencing at a point of reference at the most easterly
corner of Lot 4 of Ice Harbor Development in the City of Dubuque, Iowa; Thence
S58°59'05"E 24.18 feet; Thence S31 °01'22"W 251.98 feet; Thence S83°45'38"1/V
133.50 feet; Thence S31 °01'22"W 200.00 feet to the Point of Beginning; Thence
S03°33'22"E 137.55 feet; Thence S38°39'31"W 100.00 feet; Thence N46°50'19"W
111.13 feet; Thence N39°07'47"W 82.79 feet; Thence northwesterly 263.50 feet along
684.88 foot radius curve concave northeasterly (Ch N11°05'10"W261.88 feet); Thence
N88°19'44"E 21.84 feet; Thence N75°29'38"E 144.71 feet; Thence S19°04'56"E 231.46
feet to the Point of Beginning. The Subject Property contains the Dredge William M.
Black and its appurtenant vessels, the Tavern (a 43-foot long diesel towboat (also
referred to as the William M. Black's tender boat)), The Maud, (a 40-foot diesel
towboat), and a 50-foot pipeline barge, all located at 350 East 3`d Street, Dubuque, IA
52001.
2. Grant of conservation easement. In consideration of the sum of $255,637.00
received in grant-in-aid financial assistance from the National Park Service of the United
States Department of the Interior, the Grantor hereby grants to the Historical Division a
conservation easement in the Subject Property for the purpose of assuring preservation
of the Dredge William M. Black and its appurtenant vessels as generally described in
paragraph 1, and more specifically described in Exhibit "A" attached hereto and hereby
incorporated herein (hereinafter "the Property").
3. Easement required for Federal grant. This conservation easement is granted as
a condition of the eligibility of the Grantor for the financial assistance from the National
Park Service of the United States Department of the Interior appropriated from the
Historic Preservation Fund for the Save America's Treasures Grant Program.
4. Conditions of easement:
a. Duration. This conservation easement is granted for a period of fifty (50) years
commencing on the date when it is filed with the Dubuque County Recorder.
b. Documentation of condition of the Property at time of grant of this easement. In
order to make more certain the full extent of the Grantor's obligations and the
restrictions on the Subject Property, and in order to document the nature and condition
of the Property, including significant interior elements in spatial context, a list of
character-defining materials, features, and spaces is incorporated as Exhibit "A" at the
end of this agreement. The Grantor has provided to the Historical Division architectural
drawings including architectural floor plans and a side elevation drawing of the Property.
To complement Exhibit "A", Historical Division personnel have compiled a photographic
record, including photographer's affidavit, black and white photographs and negatives,
color digital prints, photograph logs, and a keyed location map. The Grantor agrees that
the nature and condition of the Property on the date of execution of this easement is
accurately documented by the architectural drawings and photographic record, which
shall be maintained for the life of this easement in the Historical Division's conservation
easement file for the Property.
c. Restrictions on activities that would affect historically significant components of
the Property. The Grantor agrees that no construction, alteration, or remodeling or any
other activity shall be undertaken or permitted to be undertaken on the Subject Property
which would affect historically significant interior spaces and features identified in
Exhibit "A", exterior construction materials, architectural details, form, fenestration,
height of the Property, or adversely affect its structural soundness without prior written
permission of the Historical Division affirming that such reconstruction, repair,
repainting, refinishing, rehabilitation, preservation, or restoration will meet The Secretary
of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic
Buildings (hereinafter referred to as the "Standards").
d. Duty to maintain the Property. The Grantor agrees at all times to maintain the
Property in a good and sound state of repair and to maintain the Subject Property
according to the Standards so as to prevent deterioration and preserve the architectural
and historical integrity of the Property in ways that protect and enhance those qualities
that make the Property eligible for listing in the National Register of Historic Places.
e. Public access. The Grantor agrees to provide public access to view the grant-
assisted work or features no less than twelve (12) days a year on an equitably spaced
basis. The dates and times when the property will be open to the public must be
annually published and provided to the Historical Division. At the option of Grantor, the
relevant portions of the Property may also be open at other times by appointment, in
addition to the scheduled twelve (12) days a year. Nothing in this agreement will
prohibit a reasonably nondiscriminatory admission fee, comparable to fees charged at
similar facilities in the area.
f. Right to inspect. The Grantor agrees that the Historical Division, its employees,
agents, and designees, shall have the right to inspect the Property at all reasonable
2
times, with twenty-four (24) hours written notice, in order to ascertain whether the
conditions of this easement agreement are being observed.
g. Anti-discrimination. The Grantor agrees to comply with Title VI of the Civil Rights
Act of 1964 (42 U.S.C. 2000 (d), the Americans with Disabilities Act (42 U.S.C. 12204),
and with Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). These laws
prohibit discrimination on the basis of race, religion, national origin, or disability. In
implementing public access, reasonable accommodation to qualified disabled persons
shall be made in consultation with the Historical Division.
h. Transfer of easement by the Historical Division. The Historical Division may, in
its discretion, transfer all or part of its rights and responsibilities contained in this
easement to a third party that is authorized by Iowa Code chapter 457A to hold
conservation easements. Before any such transfer, the Historical Division shall obtain
from the National Park Service written authorization that the proposed transfer would
not violate a condition of the grant agreement with the Grantor. Reasonable advance
written notice of any such transfer shall be provided to the Grantor and shall include the
reasons for the proposed transfer.
i. Easement shall run with the land; conditions on conveyance. This conservation
easement shall run with the land and be binding on the Grantor, its successors and
assigns. The Grantor agrees to insert an appropriate reference to this easement
agreement in any deed or other legal instrument by which it divests itself of either the
fee simple title or other lesser estate in the Property, the Subject Property, or any part
thereof. Reasonable advance written notice of any such divestiture shall be provided to
the Historical Division and shall include the reasons for the proposed divestiture.
j. Casualty Damage or Destruction. In the event that the Property or any part of it
shall be damaged or destroyed by fire, flood, windstorm, earth movement, or other
casualty, the Grantor shall notify the Historical Division in writing within fourteen (14)
days of the damage or destruction, such notification including what, if any, emergency
work has already been completed. No repairs or reconstruction of any type, other than
temporary emergency work to prevent further damage to the Property and to protect
public safety, shall be undertaken by the Grantor without the Historical Division's prior
written approval indicating that the proposed work will meet the Standards. The
Historical Division shall give its written approval, if any, of any proposed work within
sixty (60) days of receiving the request from the Grantor. If after reviewing the
condition of the property, the Historical Division determines that the features, materials,
appearance, workmanship, and environment which made the property eligible for listing
in the National Register of Historic Places has been lost or so damaged that its
continued National Register listing is in question, the Historical Division will notify the
Keeper of the National Register in writing of the loss. The Keeper of the National
Register will evaluate the findings and notify the Historical Division in writing of any
decision to remove the property from the National Register. If the property is removed,
the Historical Division will then notify the Grantor that the agreement is null and void. If
the damage or destruction that warrants the Property's removal from the National
3
Register is deliberately caused by the gross negligence of the Grantor or future owner,
then the Historical Division will initiate requisite legal action to recover, at a minimum,
the Federal grant funds applied to the property which will then be returned to the U.S.
Treasury.
k. Enforcement. The Historical Division shall have the right to prevent and correct
violations of the terms of this easement. If the Historical Division, upon inspection of the
property, finds what appears to be a violation, it may exercise its discretion to seek
injunctive relief in a court having jurisdiction. Except when an ongoing or imminent
violation will irreversibly diminish or impair the cultural, historical, and architectural
importance of the Property, the Historical Division shall give the Grantor written notice of
the violation and allow thirty (30) days to correct the violation before taking any formal
action, including, but not limited to, legal action. If a court, having jurisdiction,
determines that a violation exists or has occurred, the Historical Division may obtain an
injunction to stop the violation, temporarily or permanently. A court may also issue a
mandatory injunction requiring the Grantor to restore the Property to a condition that
would be consistent with preservation purposes of the grant from the National Park
Service. In any case where a court finds that a violation has occurred, the court may
require the Grantor to reimburse the Historical Division and the Iowa Attorney General
for all the State's expenses incurred in stopping, preventing, and correcting the
violation, including but not limited to reasonable attorney's fees. The failure of the
Historical Division to discover a violation or to take immediate action to correct a
violation shall not bar it from doing so at a later time.
1. Amendments. The parties may by mutual written agreement jointly amend this
easement, provided the amendment shall be consistent with preservation purpose of
this easement and shall not reduce its term of duration. Any such amendment shall not
be effective unless it is executed in the same manner as this easement, refers expressly
to this easement, and is filed with the Dubuque County Recorder.
m. Effective date; severability. This conservation easement shall become effective
when the Grantor files it in the Office of the Recorder of Dubuque County, Iowa, with a
copy of the recorded instrument provided to the Historical Division for its conservation
easement file. If any part of this conservation easement agreement is held to be illegal
by a court, the validity of the remaining parts shall not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the conservation
agreement does not contain the particular part held to be invalid.
n. Notices. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and be either
served personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantor:
National Mississippi River Museum and Aquarium
350 East 3~d Street
4
Dubuque, IA 52001
Attn: Chief Operating Officer
563.557.9545
To Grantee:
Historical Division
Iowa Department of Cultural Affairs
600 East Locust Street
Des Moines, IA 50319-0290
Attn: Deputy State Historic Preservation Officer
Phone 515.281.4013
Or to such other address as either party from time to time shall designate by written
notice to the other.
o. Recordation. The Grantor shall record this instrument in timely fashion in the
official records of Dubuque County, Iowa, and may re-record it at any time as may be
required to preserve its rights in this Easement.
IN WITNESS WHEREOF, National Mississippi River Museum and Aquarium and
Historical Division have executed this Conservation Easement Agreement on the day
and year below written.
5
GRANTEE: Iowa Department of Cultural Affairs, Historical Division
By:
Barbara A. Mitchell, Deputy State Historic Preservation Officer
STATE OF IOWA, POLK COUNTY, ss: This instrument was acknowledged before me
on , 2008 by Barbara A. Mitchell as Deputy State Historic
Preservation Officer in the Historical Division of the Iowa Department of Cultural Affairs.
NOTARY PUBLIC FOR THE STATE OF IOWA
GRANTOR: National Mississippi River Museum and Aquarium
By:
Alan Stache, Chief Operating Officer
STATE OF IOWA; DUBUQUE COUNTY, ss: This instrument was acknowledged before
me on , 2008 by Alan Stache as Chief Operating Officer
of the National Mississippi River Museum and Aquarium.
NOTARY PUBLIC FOR THE STATE OF IOWA
CONSENT BY THE DUBUQUE COUNTY HISTORICAL SOCIETY
The Dubuque County Historical Society hereby consents to this easement
agreement pursuant to the Lease Agreement between the Dubuque County Historical
Society and the City of Dubuque executed June 5, 2000.
Dubuque County Historical Society
By
Jerry Enzler, Executive Director
STATE OF IOWA; DUBUQUE COUNTY, ss: This instrument was acknowledged before
me on , 2008 by Jerry Enzler as Executive Director of the
Dubuque County Historical Society.
NOTARY PUBLIC FOR THE STATE OF IOWA
6
CONSENT BY CITY OF DUBUQUE
The City of Dubuque, Iowa, as titleholder of the real property described in
paragraph 1 of this Conservation Easement Agreement for Preservation of the Dredge
William M. Black hereby consents to this easement agreement.
City of Dubuque, Iowa
By
Roy Buol, Mayor
Attest:
Jeanne F. Schneider, City Clerk
STATE OF IOWA; DUBUQUE COUNTY, ss: This instrument was acknowledged before
me on , 2008 by Roy Buol and Jeanne F. Schneider, as
Mayor of the City of Dubuque and City Clerk of the City of Dubuque, respectively.
NOTARY PUBLIC FOR THE STATE OF IOWA
7
Exhibit A
MISSISSIPPI RIVER DISCOVERY CENTER
Wm. M. Black Conservation Easement
Legal Description
August 21, 2008
Commencing at a point of reference at the most easterly corner of Lot 4 of Ice Harbor Development in the City of
Dubuque, Iowa;
Thence S58°59'05"E 24.18 feet;
Thence S31°01'22"W 251.98 feet;
Thence S83°45'38"W 133.50 feet;
Thence S31 °01'22"W 200.00 feet to the Point of Beginning;
Thence S03°33'22"E 137.55 feet;
Thence S38°39'31"W 100.00 feet;
Thence N46°50' 19"W 111.13 feet;
Thence N39°07'47"W 82.79 feet;
Thence northwesterly 263.50 feet along 684.88 foot radius curve concave northeasterly (Ch N 11 °OS' 10"W261.88
feet);
Thence N88°19'44"E 21.84 feet;
Thence N75°29'38"E 144.71 feet;
Thence S19°04'56"E 231.46 feet to the Point of Beginning;
The area of the above Easement is 1.614 acres, more or less, and subject to easements of record and not of record.
The basis of bearing for this description: the northerly line of Lot 4 of Ice Harbor Development is assumed to bear
S58°59'05"E.
8