Riprow Valley Trailhead EasemenMEMORANDUM
May 28, 2003
TO:The Honorable Mayor and City Council Members
FROM:Michael C. Van Milligen, City Manager
SUBJECT:Riprow Valley Trailhead Easements
Planning Services Manager Laura Carstens is recommending that a public hearing be
set for June 16, 2003, to consider granting two easements on city-owned land at the
Riprow Valley Trailhead.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Laura Carstens, Planning Services Manager
Ken TeKippe, Finance Director
Paul Horsfall, Water Pollution Control Plant Manager
Gil Spence, Leisure Services Manager
MEMORANDUM
TO:Michael C. Van Milligen, City Manager
FROM:Laura Carstens, Planning Services Manager
SUBJECT:Riprow Valley Trailhead Easements
May 29, 2003
INTRODUCTION
This memo transmits two easements required for grants for acq Jisition of land and
development rights for the Riprow Valley Trailhead, for City Council review. The
Riprow Valley Trailhead is a component of the Riprow Valley Restoration Project.
BACKGROUND
Since 2000 City staff has been working with several groups interested in the
acquisition and development of the property in the Riprow Valley along Julien Dubuque
Drive and the Mississippi River owned by Bob Klauer. These groups are the Friends of
the Mines of Spain, Sisters of Charity, Riprow Valley Coalition, Iowa Natural Heritage
Foundation, Dubuque Girls Independent Softball League, and Iowa Department of
Natural Resources (IDNR).
PROJECT COMPONENTS
The Riprow Valley Restoration Project was divided into three components for phased
development. A map of the project components is eric osed.
1. Softball Complex.
The City acquired the property on the south side of Julien Dubuque Drive. which
formerly housed the Koch Sulfur Plant, from Bob Klauer for development as a
softball complex. The City received a $49.578 federal grant towaras acquisition
of this property. The Dubuque Girls independent Softball League received other
grants and donations to complete development of the softball complex, which
opened this month.
2. Prairie Area.
The City owns the site of the former wastewater plant east of the railroad near
the river. The IDNR has leased this land from the City for a prairie ares. and is
responsible for management and maintenance of this site. The IDNR is making
Memo to Michael Van Milligen
Riprow Valley Trailhead Easements
May 29, 2003
Page 2
improvements to tie this site into the Mines of Spain and Julien Dubuque
Monument.
3. Riprow Valley Trailhead
The trailheaG project involves acquisition of property from Bob Klauer on the
north side of Julien Dubuque Drive and along the river for development of a
trailhead for the Heritage Trail Riverfront System. These are Sites A and B on
the enclosed map. The City has received a federal grant for acquisition of this
property. A second grant is pending. These grants are contingent on two
easements to limit development of these two sites.
PROPERTY ACQUISITION
The primary focus of the Riprow Valley work group has been to acquire the property
from Mr Klauer. Representatives from the group had many discussions with Mr. Klauer
to develop a purchase agreement with terms of the sale. The City Council approved
the purchase agreement in June, 2000. Mr. Klauer has agreed to allow the City up to
36 months to make the final payment. The funds collected by the closing date of the
sale will be paid to Mr. Klauer and the remaining amount wiil become an obligation of
the City through the purchase agreement.
The City has received commitments from private individuals to provide a guaranty for
the remaining obligation. The guaranty agreemen! was signed in July, 2000. The
guaranty agreement contains a provision which restricts the use of the property to
recreational and open space uses. The purpose of this language is to provide
assurance to the private individuals on the use of the property until a permanent
easement can be obtainea. The guaranty agreement also contains a provision that the
City will make a good faith effod to obtain grants to offset the contributions pledged by
the guarantors. The City and the other members of the group partnered to raise the
funds needed for acquisition through grants and donations.
DISCUSSION
The Riprow Valley Trailhead involves the purchase of Sites A and B, which total 6.35
acres. These sites provide for future development of a trailhead for the Heritage Trail
Riverfront System along Julien Dubuque Drive and the Mississippi River. Both sites
are undeveloped. Site A is 5.68 acres of wooded hillside north of Julien Dubuque
Drive. Site B is a 0.67 acre riverfront parcel. A map of the project area is enclosed.
The total purchase price for Sites A and B is $247,096. The City has been awarded a
Federal Recreational Trails Grant of $123.548 for 50% of the land acquisition cost.
This grant is contingent on a preservation easement for Site A only. The preservation
easement is in the form of a letter of agreement and a preservation covenant that will
protect two potentially significant archeological sites on this site.
Memo to Michael Van Milligen
Riprow Valley Trailhead Easements
May 29, 2003
Page 3
The City is also working with the Iowa Natural Heritage Foundation on a $60,000 grant
to purchase the development rights for both Sites A and B through a conservation
easement.
The appraised "as is" market value of Sites A and B together is approximately
$250,000. The conservation easement equates to development rights of about
$180,000.
Enclosed are two charts that show how the RJ prow Valley Trailhead Project will be
financed. The first chart includes only the $123,548 Federal Recreational Trails Grant.
The second chart shows the financing if the pending $60,000 grant from the Iowa
Natural Heritage Foundation is awarded. The additional grant helps to further reduce
the private share of the eight guarantors.
RECOMMENDATION
City staff is recommending that the City Council approve the preservation easement
and the conservation easement in order to obtain the funds from these two grants.
Due to the extent that these easements will restrict development rights on the land to
be acquired, they are analogous to a sale of the property. Corporation Counsel Barry
Lindahl has advised that a public hearing should be held before the City Council
approves these easements.
City staff recommends that the public hearing be set for Monday, June 16, 2003.
LC/mkr
Enclosures
cc: Cindy Steinhauser, Assistant City Manager
Barry Lindahl, Corporation Counsel
Ken Tekippe, Finance Director
Riprow Valley Restoration Project
Riprow Valley Restoration Project
Location: End of Julien Dubuque Drive
and Mississippi River
Description: To grant conservation
and preservation easements for the
Riprow Valley Trailhead.
RESOLUTION NO. 189-03
RESOLUTION OF INTENT TO DISPOSE OF CITY INTEREST IN CERTAIN RIGHTS FOR
LOT t OF '1 OF GOVERNMENT LOT #t; LOT t, ROCK CUT SUBDIVISION; AND LOT A OF
GOVERNMENT LOT #'1, ALL IN SECTION 6, T88, R3E, IN THE CITY OF DUBUQUE, IOWA
FOR EASEMENTS FOR THE RIPROW VALLEY TRAILHEAD PROJECT
Whereas, the City of Dubuque, Iowa has requested federal grants for the acquisition of
land and development rights for the Riprow Valley Trailhead Project for property legally
described as Lot 1 of 1 of Government Lot #1; Lot 1, Rock Cut Subdivision; and Lot A of
Government Lot #1, all in Section 6, T88, R3E, in the City of Dubuque, iowa; and
Whereas, obtaining these federal grants requires that the City of Dubuque provide
easements for the preservation and conservation of the described property by relinquishing
certain rights in accordance with said easements; and
Whereas, the City Council of the City of Dubuque, Iowa has determined that
relinquishing these rights in accordance with said easements for the described property is in the
public interest, and should be approved.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the City of Dubuque intends to dispose of its interest in certain rights in
accordance with said easements for Lot 1 of I of Government Lot #1; Lot 1, Rock Cut
Subdivision; and Lot A of Government Lot #1, all in Section 6, T88, R3E, in the City of Dubuque,
Iowa.
Section 2. That the conveyance of certain fights in accordance with a letter of agreement
and preservation covenant with the Iowa Department of Natural Resources and the Iowa State
Historic Preservation Office for Lot 1 of 1 of Government Lot #1, and Lot 1, Rock Cut
Subdivision, both in Section 6, T88, R3E, in the City of Dubuque, Iowa is contingent on the
receipt of a grant from the Federal Recreational Trails Fund.
Section 3. That the conveyance of certain rights in accordance with a deed of
conservation with the Iowa Natural Heritage Foundation for Lot 1 of 1 of Government Lot #1; Lot
1, Rock Cut Subdivision; and Lot A of Govemment Lot #1, all in Section 6, T88, R3E, in the City
of Dubuque, Iowa is contingent on the receipt of a grant from the National Fish and Wildlife
Foundation.
Section 4. That the City Clerk be and is hereby authorized and directed to cause a notice
of intent to dispose of said real estate to be published in the manner as prescribed by law.
Passed, approved and adopted this 2nd day of June, 2003.
Torrance M. Duggan, Mayor
Attest: ·
Jeanne F. Schneider, CMC, City Clerk
City of Dubuque
Riprow Valley Property
Acquired from Robert & Livija Klauer on June 30, 2000
6% Interest Rate
Loan Due July 1, 2003
Assumes no additional principal or interest payments prior to due date
Principal Balance of January 29, 2002
r~terest January 29. 2002 - March 25 2003
(420 days x $47.t0 or $286,523 balance)
Interest March 26-July 1, 2003
(97 days x $46.55 on $283 188 balance)
Total
$286,523
19,782
4,515
$31 O,82O
Federal Recreational Trails Funds
Catfish Creek Coalition-Considered Match Funds
(Received March 25, 2003)
Required Additional Guarantors Match
($120.159/8 = $15.020 each)
Net Additional Required to Satisfy Debt Obligation
(Agrees with amount City committed in FY'04 budget)
-123548
3,335
-120t59
$ 63,778
Original Guarantors Commitment
Current Guarantors Commitment
$30,000
$15,020
Funds Received to Date:
City Original Contribution
Donors Original Contribution
LWCF Grant Received - City Initiated
Private Funds Raised (10,500 + 3,596)
Sub Total
Catfish Creek Coalition (March 25, 2003)
TOTAL
$100,000
160,000
49,578
14.096
$323.674
3,335
$327,009
Prepared November 21,2002
Updated March 25, 2003
Updated May 27. 2003
Pendin,q Grant
City of Dubuque
Riprow Valley Property
Acquired from Robert & Livija Klauer on June 30, 2000
6°/= Interest Rate
Loan Due July 1, 2003
Assumes no additional principal or interest payments prior to due date
Principal Balance of January 29, 2002
Interest January 29, 2002 - March 25, 2003
(420 days x $47.10 on $286,523 balance)
Interest March 26-July 1, 2003
(97 days x $46.55 on $283.188 balance)
Total
$286,523
19,782
4,515
$310,820
Federal Recreational Trails Funds
Catfish Creek Coalition-Considered Match Funds
(Received March 25, 2003)
Pending Grant from National Fish and Wildlife Foundation
Required Additional Guarantors Match
($60,159 / 8 = $7,520 each)
Net Additional Required to Satisfy Debt Obligation
(Agrees with amount City committed in FY'04 budget)
-123,548
3,335
- 60,000
- 60,159
$ 63,778
Original Guarantors Commitment
Pending Guarantors Commitment
$30,000
$ 7,520
Funds Received to Date:
City Original Contribution
Donors Original Contribution
LWCF Grant Received - City initiated
Private Funds Raised (10.500 + 3,596)
Sub Total
Catfish Creek Coalition (March 25 2003)
TOTAL
$100,000
160.000
49,578
14,096
$323,674
3,335
$327,009
Prepared November 21, 2002
Updated March 25, 2003
Updated May 27, 2003
LETTER Of AGREEMENT AND PRESERVATION COVENANT BETWEEN THE CITY OF
DUBUQUE, THE IOWA DEPARTMENT OF NATURAL RESOURCES, AND THE IOWA
STATE HISTORIC PRESERVATION OFFICE REGARDING CONSTRUCTION OF THE
RIPROW VALLEY RECREATION PROJECT IN THE CITY OF DUBUQUE, IOWA
WHEREAS, the Riprow Valley Restoration Project (hereafter, Project) of the City of
Dubuque (City) will receive grant money from the National Park Service (hereafter, NPS)
through the Land and Water Conservation Program (hereafter LAWCON); and. whereas, the
Iowa Department of Natural Resources (hereafter. DNR) as the Grant's Administrator. agrees
to assume the roles and responsibilities for decision making and actions that would otherwise
apply to NPS under National Historic Preservation Act of 1966; and,
WHEREAS, the DNR has consulted with the State Historic Preservation Office
(SHPO) pursuant to the Advisory Council on Historic Preservation's (hereafter, Council)
regulations (36 CFR Part 800) implementing Section 106 of the National Historic Preservation
Act (16 U.S.C. 470), and
WHEREAS, the Project will acquire private property owned by Mr. Robert Klauer
using Federal funds, which total 18 acres along the Riprow valley floor and north valley wall
in Section 6, T88N-R3E Dubuque County (see Attachment C - Legal Description); and
WHEREAS, the City will construct a softball complex on part of the acquisition
property; and
WHEREAS, the acquisition property is adjacent to the Mines of Spain National Historic
Monument and is therefore judged to possess a high potential for the presence of surface-
exposed, near surface, or deeply buried archaeological sites associated with the prehistoric
and historic Native American and Euro-American occupation of the Riprow valley; and
WHEREAS, a Phase I archaeological study has been conducted on approximately 17
acres of the acquisition property, and has identified previously undocumented archaeological
sites 13DB678 and 13DB679 within 5.7 acres of the acquisition property, whose boundaries,
functions, historic significance and National Register eligibility are at this point conjectural and
have not yet been fully determined (See Attachment B - Site Map); and
WHEREAS, the SHPO has found that the Phase I survey did not adequately address
all of the potential cultural resources concerns within the Project's Area of Potential Effects
(APE), but has expressed an opinion that further delays in the implementation of the
undertaking to resolve these concerns would not benefit the public; and
WHEREAS, the SHPO has determined that the previously disturbed areas within the
5.7 acre parcel do not require a Phase I survey; and
WHEREAS, the DNR has determined and the SHPO has concurred that the
construction of the Softball Complex will not affect historic properties; and
WHEREAS, the City has agreed to protect sites 13DB678. 13DB679 and any other
unidentified cultural resources that may be eligible for listing on the National Register of
Historic Places that lie within the 5.7 acre parcel.
NOW, THEREFORE. the City, DNR and the SHPO agree as follows:
STIPULATIONS
The City will ensure that the following measures are carried out:
A. The City shall take steps to protect and preserve sites 13DB678 and 13DB679, as
outlined in the letter from SHPO dated August 19, 2001 (See Attachment D - SHPO
Letter), until such a time that they have been fully evaluated and determined to be not
eligible for listing in the National Register of Historic Places.
B. The City shall prohibit any activities in the 5.7 acre tract beyond the areas of previous
disturbance that may lead to ground disturbance vegetative damage, and/or potential soil
erosion, including off-road vehicle traffic, equestrian traffic, tillage and cultivation, and
alteration of surface drainage patterns. Any damage to the site's soil and vegetation
resources will be addressed with remedial action in a timely manner.
C. The City shall re-enter Section 106 consultation with the SHPO and other consulting
parties on any future development activities [hat wi I occur in the 5.7 acre tract on the
north side of Julien Dubuque Drive. beyond the areas of prewous disturbance. The DNR.
as the LAWCON Grant originator, will serve as the lead Federal Agency on these
activities.
D. The City shall withhold information concerning the nature and location of sites 13DB678,
13DB679 and any other significant cultural resources situated within the project area to
avoid attracting vandalism and other unauthorized activities that may result in adverse
effects.
E. In the event that previously unidentified archaeological resources are discovered within
the area of potential effects. [he City shall halt all construction work involving subsurface
disturbance in the area of the resource and in the surrounding area where further
subsurface remains can be reasonably be expected to occur and notify the DNR and the
SHPO of the discovery.
An archaeologist meeting the Secretary of Interior's professional qualification
standards shall be retained by the City to immediately assess the situation to
determine the nature, extent, and significance of the effected archaeological resource.
2. Within 30 calendar days of the original notification of discovery, the DNR in
consultation with the SHPO, will determine the National Register Eligibility of the
resource.
3. If the resource is determined eligible for the National Register, the City shall prepare a
plan for its avoidance, further protection, recovery of information, or destruction without
data recovery. Such plan shall be approved by the SHPO prior to implementation.
4. Work in the affected area shall resume pending either:
a) Development and implementation of an appropriate data recovery or other
recommended mitigation procedure, or
b) Determination that the resource is not eligible for inclusion on The National
Register.
5. Any disputes concerning the evaluation or treatment of previously unidentified
resources wilt be resolved as provided in Section F of this agreement entitled Dispute
Resolution.
6. In the event that human remains, burials, burial mounds, or potential mounds, are
encountered during additional archaeological investigations or construction activities
the City or its designated representative shall cease work in the area, take appropriate
steps to secure the site, and notify officials at the Burials Program at the Office of the
State Archaeologist (OSA) or the Iowa Department of Health. If the remains appear to
be ancient (i.e. older than 150 years), the burial is legally protected under Chapter
263B of the Iowa Code and is under the jurisdiction of the Burials Program at the OSA.
If the remains appear to be less than 150 years old, the burial is legally protected
under Chapter 566 of the towa Code and is under the jurisdiction of the Iowa
Department of Health.
F. Any party to this agreement may object in writing to the other party within 30 calendar
days to any action carried out pursuant to this agreement. Upon receiving such notice,
the parties shall consult to resolve the objection. If the objection cannot be resolved the
DNR shall forward all documentation relating to the dispute to the Advisory Council for its
opinion.
G. Any party to this agreement may propose to the other parties that the agreement be
amended. 36CFR Part 800 shall govern the execution of any such amendment.
H. If any party to this agreement determines that it cannot implement the terms of this
agreement or determines that the agreement is not being properly implemented, that party
may propose to the other parties that the agreement be terminated. The party proposing
to terminate this agreement shall so notify the other parties in writing explaining the
reasons for termination and affording them at least 30 calendar days to consult and seek
alternatives to termination. Should such consultation fail and the agreement be
terminated, the DNR shall either consult with the SHPO and the City in accordance with
36CFR Part 800 to develop a new agreement: or request the comments of the Advisory
Council. In the event the agreement is terminated, consultation procedures established
with the OSA Burials Program will remain in effect.
I. The Preservation Covenant attached as Appendix A shall be entered into between the
City and the SHPO setting out the obligations of the City for the maintenance and
preservation of sites 13DB678. 13DB679. and any other undocumented cultural resource
that may exist within the 5.7 acre tract referred to as the Klauer north acquisition parcel
(See Attachment B - Site Map). The covenant shall be recorded with the Dubuque
County recorder and the City shall provide a copy of the recorded document to the SHPO.
Execution of this Letter of Agreement and attached Preservation Covenant by the DNR. the
City and the SHPO, and implementation of its terms evidences that the DNR. the City and
the SHPO have consulted on the Riprow Valley Recreation Area and the effects thereof on
historic properties, and that the City has taken into account the effects of the undertaking on
histodc properties.
APPROVED: CITY OF DUBUQUE, IOWA
By:. Date:
Terrance Duggan
Mayor
APPROVED: IOWA DEPARTMENT OF NATURAL RESOURCES
By: Date:
Jeff Vonk
State Director
APPROVED: IOWA STATE HISTORIC PRESERVAT] ON OFFICE
By: Date:
Lowell Soike
Deputy Iowa State Histodc Preservation Officer
ATTACHMENT A
Preservation Covenant
This covenant, the effective date of which for reference purposes is the day of ,
2003, is entered into by and among the City of Dubuque (hereinafter City), the Iowa
Department of Natural Resources (hereinafter DNR), and the Iowa State Historic
Preservation Office (hereinafter SHPO), all participants in funding, development.
management, and preservation oversight of the herein described property (See Attachment C
- Legal Description).
In consideration of the conveyance of certain real property totaling 5.7 acres, hereinafter
referred to as the Klauer north acquisition parcel, ocated in the City of Dubuque County of
Dubuque, State of Iowa (See Attachment B - Site Map).
The City hereby covenants on behalf of itself and successors to maintain and preserve Iowa
Archaeological sites 13DB678, 13DB679, and all other unidentified and unevaluated cultural
resources that may be within the boundaries of the above-referenced property as follows:
1. The City shall preserve and maintain Iowa Archaeological Sites 13DB678 and 13DB679 in
accordance with the recommended approaches described in the attached Letter of
Agreement (R & C #000431034) in order to preserve those attributes that may qualify
13DB678 and 13DB679 for inclusion in the National Register of Historic Places.
2. No construction, alteration, remodeling or disturbance of the ground surface or any other
thing shall be undertaken or permitted to be undertaken within the boundaries of the
Klauer north acquisition parcel beyond the areas of previous disturbance, to include
13DB678 and 13DB679, without first having re-entered Section 106 consultation the DNR
and the SHPO.
3. The SHPO shall be permitted at all reasonable iimes to inspect Iowa Archaeological Sites
13DB678 and 13DB679 in order to ascertain if the above conditions are be!rig observed.
4. In the event of a violation of this covenant, and in addition to any remedy now or hereafter
provided by law, the SHPO may, following reasonable notice to the City, institute suit to
enjoin said violation or to require the protection of the Klauer north acquisition parcel
including Iowa Archaeological sites 13DB678 and 13DB679.
5. This covenant shall be binding on the City, its successors and assigns for twenty-one (21)
years from its effective date. At any time dudng the twentieth (20th) year after the effective
date, the City, or its successors or assigns, shall have the right, upon written notice to the
SHPO and the IDNR to renew this covenant for an additional twenty (20) year term.
Restrictions, stipulations, and covenants contained herein shall be inserted by the City
verbatim or by express reference in any deed or other legal instrument by which it divests
itself of either the fee simple title or any other lesser estate.
6. The SHPO shall be provided the opportunity of first refusal should the City contemplate
divestment of the acquisition.
7. The failure of the SHPO to exercise any right or remedy granted under this covenant shall
not have the effect of waiving or limiting the exercise of any other right or remedy or the
use of such right or remedy at any other time.
The covenant shall be a binding servitude upon the property and shall be deemed to run with
the land Execution of this covenant shall constitute evidence that the City, as property
owner, agrees to be bound by the foregoing conditions and restrictions and to perform the
obligations herein set forth.
APPROVED: CITY OF DUBUQUE, IOWA
By: Date:
Terrance Duggan
Mayor
APPROVED: IOWA DEPARTMENT OF NATURAL RESOURCES
By: Date:
Jeff Vonk
State Director
APPROVED: IOWA STATE HISTORIC PRESERVATION OFFICE
By: Date:
Lowell Soike
Deputy Iowa State Historic Preservation Officer
Attachment B
Riprow Valley Restoration Project
Site Map of Areas of
Previous Disturbance
STATE HISTORICAL SOCIETY OF IOWA
Where past meets future
AUG 2 7 2001
August 19, 2001
In reply refer to:
R&C#:-000431034
Mr. James Schcffier, Executive Officer It
Parks, Recreation & Preserves
Iowa Department of Nataral Resources
Wallace State Office Building
Des Mothes, Iowa 50319
RE: NPS - DUBUQUE COUNTY - CITY OF DUBUQUE - LAWCON - RIPROW VALLEY
- KESTOKATION PROJECT - PROPOSED DEVELOPMENT OF 32 ACRES OF LAND FOR
SOFTBALL COMPLEX - SEC. 6, T88N-R3E - ARCHAEOLOGICAL REPORT MVAC #413
Centennial Building Dear Mr. Scheffier,
Iowa City
We have received the &aft report enfided A Phase I Intensive Archaeological Survey for the Proposed
· Ripr~wVal~eyRecreati~nAreaf~rtheCity~fDubuque~DubuqueC~unty~wa[Rep~riN~.413]prepared
~hha~toEdw~n Blacksm,th ShOPoy Ms. Wendy Hollz-Leith of the Mississippi Valley Archaeology Center (MVAC) at the University of
Wisconsin-La Crosse. We have also received your July 26, 2001 letter of determination for ~ project. We
make the following comments and recommendations based on the results of this investigation, oar
Abbie Gardner Cabin consideration of yoar determination, and in accordance with section t06 of the National Histor/c Preservation
Amolds Park Act Of 1966 and its/mplemanting regulations 36 CFR part 800 (rev/sed, effective January 11, 2001).
Iowa Historical Bufilding I have read through this report - twice, and have a number of comments and concerns. Overall, I must say
Des Moines that I am disappointed with the results ofMVAC's thvestigation and their reporting. First. I believe that a
number of vital tasks outlined in the City's scope of services, and in the consultant's own research design
Montauk GoVernor's Home (page 11 of the report) were not completed or were merety glossed over. Furthermere, I noticed that the
Union Sandal' School ..r.ep. o.rt. lacks cermth basic elements that may have helped to clarify many of the ambiguitie.s found in the ~ex~
* uitant s -'~ '
Clermont Musem - · k._: ~ ra/ght have lent support fo the cons interpretations and conclusions:
Clermont
All of the above-stated issues are discussed below following the provismns of thc City's scope of service.
Plum Grove Governor's Home
Iowa City I. Review and synthesize }he comprehensive background research the Cio, has collected regarding the
history of this property. Archival documents such as land title deeds, manuscripts, county histories.
Toolesboro Iadian Mounds historic maps, ethnographic and ~a*,e! accounts and photogr~h~ were all consulted during the research
Toolesboro phase.
It appears that little effort went into researching the post-contact history of the project area and that the
· ' consultant only utilized the most readily available liistoric documents. Unfortunately, the end pr ' a
Council Blni~ very loose and over-generalized historic context. The basic tenant of historic archaeology is the use of non-
archaeological records to identify and interpret archaeological resources or areas of archaeulogical potential
Typically, a comprehensive site-specific history can only be developed through careful consideration of
tawny different pr/m~ry and secondary sources such as property abstracts, ceasm records, property mx rolls
and other government documents, railroad records, treaties, newspaper articles, travelers accounts, historic
paintings and sketches, photographa, aerial photographs, oral histories and ethnographic accounts, em.
For example, the consultant provides a brief account of George Catlln's visit to the area in the t830s and
includes his painting of the R/prow Valley as cover art m the repom Catlin's painting depicts Julien
Dubuque's gravesite and Peter Lonmer's lead smelting operation at the mouth of the valley, but because of
the scale, it is very difficult for the reader to glean any detail. There i~ no reference to directional orientation
IOWA HISTORICAL BUILDING
600 East Locmst · Des Moine% Iowa 50319-0290
Phone: (515) 281-6412 - Fax: (515) 2424498 or (515) 28243502
www. iowabistory, org
and no discussion as to where Lorimer's operation was in relation to the project area. I assume that the view
is to the northwest, which, by my reckoning would place Lorimer's furnace right in the projec~ area.
Considering Catlin's reputation as a prodigious chrohicter, I can not help but think that more information on
Lorimer's smelting operation, and poss~?01y of the valley, might be contained within his joumal~.
Also, I notice that the b~liography section lists Lieutenant Albert Lea's 1836 emigrant's gu/de to the
Wisconsiu Ten/toW as one of the resources consulteck but I have not been able to find any reference to Lea
in the text. Did he visit the Riprow valley in [tis travels? The published works of other conmmporaries such
us NewhalL Plumbe, Galland. P~e. Schoolcrafi, Betttam/, Black Hawk, and Long may also have provided
some insight into the local history. In fact Schoolcraft published a book in 1819 treating the subject of lead
miming hi the Ozark Mountains of Missouri and Arkansas. It is possible that he touched on the lead mi~h~g
industry of Dubuque in tiffs or later works. Finally, the author's failure to consult William Wilkie's recent
history Dubuque on the Mississipp~ clearly demonstrates the superficiality of the back~ound research and
context development.
2. Analyze and interpret information produced from soil borings previously extracted by the City's
geotechnical consultant t'Terracon). Additional subsurface testing may need to beperformed to confirm
or correlate geotechnical data, or, if the evidence of previous soil borings is incomplete or inconclusive.
This investigaiion will be limited to the 11.31 acre site ofthe proposed Dubuque Girls Independent
League Softball Corapl~x.
One of the mum objectives of this smd), was m identify and evaluate potential buried living surfaces across
the entire site using ex/sting and supplemental data. The consultant does little more than transcn'be
geoteckincal boring logs already at SHPO's disposal and then offers nothing in the way of scientific
interpretation- In short, the geomorphologic assessment of the project corridor is vague, inconclusive, and
does not employ standardized lithostratigmphic or Land Sediment Assemblage (LSA) nomenclature. I can
honestly say that I know nothing more about the softs, geomorphology, and potential for deeply buried softs
in the R/prow X~.~. ey than I did a year ago when we began consultation on this project.
The inconclusiveness of the geomorphologic component is brought out iu the author's own statement "The
11 acres has been completely altered by repeated historic activity and the original ground surface is ei*her
deeply buried or the top soil has been removed." It is clear that the geomorphdiogy work for th/s project
was performed by a field archaeologist rather than by someone with a strong background in soil science and
geomorphology. Ttds is counter to the professional qualification requnvanents oufiiued City's RFP, which
states that ' ~"I~e proje~ geomorphologi~t must possess and demonstrate a f~rniliariW with the
lithostratigraphy and Landform Sediment Assemblages (LSA's) of Easters Iowa and the Mississippi uanch."
In my opinion the weaknesses exinbited in the geomorphologic hiterpretatinn presenm serious implicatious
regarding the credibility of the overall survey for the 11-acre lract.
3. Perform an inzensive Phase I archeotogical investigation in areas slated for ground disturbance and that
have a demonstrated j~otenZial for xurface-exposed or buried archeological sites. This investigation is
limited to the tl.31 acre site ofthe propo~ed Dubuque Girls Independent League Soft. baH Complex xtie.
The report does not document the number, locations, mid depths of subsurface tests performed in the area,
therefore I have no way re gauge the extent of the survey coverage. Page 3-68 of the Guidelines for
Archaeological Investigation~ in Iowa dictates the proper method for documenting relevant survey
information w/thin the text of an archaeological report. Recordation of subsurface test locations on a site map
is a standard practice in contemporary archaeological reporting across the United States. The Iowa S~q~O's
policy regard/rig omission ofprove~ence documentation is to return the repor~ without review. Furthermore,
observed during the survey.
4 Perform an intensive archaeological surveyjbr the 5. 7-acre woodland tract that is outside of the
proposed construction. The results of this investigation will be incorporated into the findl report for the
overall prq]ect (see item 5 below,~.
5. Preparation ora draft report which synthesizes and interprets archival, geomarphdlogical, and
archaeological data. The repor~ summary Mll provide preliminary interpretations of archaeological
sires that are encountered during survey. [t will provide preliminary assessments regarding their
sio~n~flcance within the appropriate context and. if possibte, will offer comrnen~s regarding their National
Register eligibility with respec: to the appropriate Criteria. The report will provide recommendations for
further investigation if it is found to be necessary,; and wilt develop mitigation or site preservation plans,
as appropriate, for all sites judged to be National Register eligible tha~ are within the project Area of
Potential Effects (APE).
The conanltant identified two archaeological sites ~vitl~u the 5.7-acre v~ooded ttact. 13DB678 is beheved to
be a ~ mine pit while 13DB679 is interpreted aa a limestone quarry. The localinus of thean sites are
recorded on an aerial photograph of the project area, which provides no scale (see Figure 15). The
appropriate USGS topographic map(s), modified to depict the site locations, should have been incorporated
m supplement Figure 15 and the text description. Iudividual site maps, fled to a known reference datum,
should also have been prepared, which detail the locations of positive and negative tests, surface anomalies,
etc. This is standard procedure in archaeological documentation and reporting. I am at a loss as to why this
basic information was om/t~ed from the report.
The Iowa SY41aO's Guidelines'for Archaeological £nvestigations in Iowa is intended to provide guidance to
agency officials, individuals, and archaeological consultants. TMs includes poinm on report preparation
includ~uE format and content. Item 5 of the City's Scope stipulates that/The report shall be in accordance
vdfl~e; Se~-r~tarY-of Interior Stanfl~ a~d the Gzt'idetin~fb~,A~-chaeo~o~ica~rtvartigatior~¥n. Iowa/ .....
(1999).' Greater attention should have been given to this document during the preparation of the project
F;~aily, the consultant's research design proposes that:
~'Site boundaries will be delineated, both horizontally and vertically."
and,
"The Phase I survey ,,v/ll attempt to determine if any located sites are eligible for listing on the
National Regismr of Histar/c Places and the cultural affiliation, age, and style or resoarcs.
The site boundaries have not been defmedi no recommendations for National Register eligibiYity were made;
and lastly, there is no mention of a preservation plan for either site. These deficiencies will not result in
delays or other compl/catious for the project since there are no ;,,,,,~ediate plans m develop the 5.7-acre
wooded parcel. Still it is somewhat disconcerting when consultants do not follow their own research design.
As a result, unfortunately, the City will have to shoulder the added expense of further archaeological work if
it wishes to proceed with any future development of this property.
The overall effect is that the report does not do justice to the Kiprow Valley's extensive history, its potential
m contain archaeological resources that could significantly contribute to a better understanding of local, sram
and National history, and its probable association with the Mine~ of Spain National H/storic Landmark.
Frankly, I find that it lsaves the reader with more questions than answers. Nevertheless, despite the
dmficiencies of thi~ investigation, [ believe that the City has made a reason=ble and good faith effort m its
at~mpts to comply with section 106, and, that it would not be in the public's best interest to delay the
hnpl~nentation of this und~mldng further by raq~g additional historic prop~es investigations at this
Therefore, it is with some trepidation that I recommend concurrence with your determination of 'no adverse
effects' with the following conditions.
In consultation with the SI-IPO, the City shall develop an historic preservation covenant for the 5.7 acres
tract located to the north of the Juller~ Dubuque Drive. The purpose of this a~eement is promct sites
13DB678, I3DB679, and any other ca~dentified historic properties that may be located within the
property boundaries. The covenant shall include caveats stating that any future clevehipmenr activ/ties or
divestiture of this property, in part or hi whole, must first consider the action's effects on historic
properties by reentering the section 106 consultation process with the SI-]PO and other interested parties,
and, that options for renewal will be considered by the SPIPO and the City prior m its 20-year expiration,
date. This document will be filed with the County Recorders Office and shall be attached as a rider to
the property title deed. A copy wil/a/so be placed on file at the Iowa State Historic Preservation Office
in Des Moines.
· The archaeological consultant will make the fullowing revisions to the report and submit a final draft to
the SPIPO for fdi~g.
I. Revised methods section describing the types, numbers, locations, maximum and minimulll
depths of subsurface tests performed in both survey areas.
2. A project location map on the appropriate USGS 7.5 minute quads illnstratmg the locanons of
subsurface test locations, sites 13DB678 and 13DB679, and areas of noted disturbance.
3.' S~te maps for I3DB678'and 13DB679 depicting the locatiuns of ail subSr~rfac~ ~sts, sue'ace
anomalies, features, etc.
If design changes are made for this project which would involve undisturbed new fights-of-way or
easements, please forward additional information to our office for farther comment along with the Agency
Official's determination of effect. If project activities uncover an iron(s) that might be of archeological,
historical or architectural interest, or if important new archeulegical, historical or archRecmral data ahould be
encountered in the project APE, you should make reasonable efforts to avoid or mm~miTe impacm ro the
property until an assessment can be made by a qualified archaeologist.
Please feel free to contact me at (515~-81-8744 if you have any questions
rcqLtil-e
further
/
Cc: Mr. Robert Bos~hardt, Project Mmmger, IvEssissippi Valley Arcahaeotogy Cenmr
Ms, Lisa Sestetherm, AasisllLnt Planner, City of Dubuque
Mr. Junathan Buffalo, Historic Preservation Coordinator, Sac & Fox Tn'~e of Ivliasiasippi m Iowa
Ms. Marianne Long, Cu/tural Preservatienist, Iowa Tribe of Oldahoma
Attachment C
Legal Description for Riprow Valley Recreation Project
Parcel ID# Legal Description
16-06-200-003 Lot 1 of 1 of Government Lot #1. Section 6, T88, R3E. in the
City of Dubuque
16-06-200-002 Lot 1 of 1 NW fractional corner of the NE corner. Section 6.
T88 R3E. in the City of Dubuque
Prepared by: Darrel Mills, Iowa Natural Heritage Foundation, 505 5t~ Ave.//444. Des Mo/nes. IA 50309-2321
Telephone = (515)-288-1846
DEED OF CONSERVATION EASEMENT
THIS GRANT DEED OF CONSERVATION EASEMENT ("Easement") is
made this day of ,2003, by, the City of Dubuque, of 50 West 13th St.,
Dubuque, IA 52001-4864 (hereinafter together with its successors and assigns collectively
referred to as "Grantor"), and, Iowa Natural Heritage Foundation of 505 Fifth Ave., Suite #444,
Des Moines, Iowa 50309 (hereinafter together with its successors and assigns collectively
referred to as "Grantee").
RECITALS:
WHEREAS, Grantor is the owner of certain real property in Dubuque County,
Iowa, more particularly described in Exhibit A attached hereto and incorporated by this
reference (the "Property"); and
WHEREAS, the Property possesses significant natural, scenic, open space,
educational, and/or recreational value appropriate for conservation and preservation under the
standards of Section 457A of the Code of Iowa; and
WltEREAS, the specific conservation values of the Property are documented in
an inventory of relevant features of the Property for June, 2003, on file at the offices of Grantee
and attached hereto as Exhibit B and incorporated by this reference as "Baseline Data", which
consists of reports, maps, photographs and other documentation that the parties agree provide,
collectively, an accurate representation of the Property at the time of this grant intended to serve
as an objective information baseline for monitoring compliance with the terms of this Easement;
and
WHEREAS, Grantor intends that the conservation values of the Property be
preserved and maintained by the continuation of land use patterns existing at the t/me of this
grant, including, without limitation, those relating to forest preservation, recreational uses, etc.
that do not significantly impair or interfere with those conservation values and;
WHEREAS, Grantor further intends to convey to Grantee the right to preserve
and protect the conservation values of the Property in perpetuity; and
WHEREAS, Grantee is a private, non-profit, publicly supported, tax-exempt
organization, qualified under Section 170(h) of the Internal Revenue Code and section 457A of
the State of Iowa Code, whose primary purpose is the preservation, protection and enhancement
of land in its natural, scenic, historical, agricultural, and/or open space condition; and
WHEREAS, Grantee is treated as having exempt status under 501(c)3 of the
Internal Revenue Code and Grantor is entitled and may rely upon this affirmative representation
made by Grantee; and
VOtEREAS, Grantee agrees by accepting this grant to honor the intentions of
Grantor stated herein and to preserve and protect in perpetuity the conservation values of the
Property for the benefit of this generation and the generations to come;
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is hereby acknowledged, Grantor hereby
conveys to Grantee a Conservation Easement on the Property as more fully described in this
agreement.
1. Purpose. It is the purpose of this Easement to assure that the Property will be
preserved forever in its natural, scenic, forested, and/or open space condition and to prevent any
use of the Property that would significantly impair or interfere with its conservation values.
Grantor intends that this Easement will confine the use of the Property to such activities as are
consistent with the purposes of this Easement.
2. Rights of Grantee. To accomplish the purposes of this Easement. the
following fights are conveyed to Grantee or its assigns:
(a) to preserve and protect the conservation values of the Property;
(b) to enter upon the Property at reasonable times to monitor Grantor's
compliance with and otherwise enfome the terms of this Easement; provided that such entry shall
be upon prior reasonable notice to Grantor, and that Grantee shall not unreasonably interfere
with Grantor's use and quiet enjoyment of the Property; and
(c) to prevent any activity on or use of the Property that is inconsistent
with the purposes of this Easement, and to require the restoration of such areas or features of the
Property that may be damaged by any inconsistent activity or use, pursuant to the provisions of
paragraph 6 hereof.
3. Permitted Uses. Grantor reserves to itself, and to its successors and assigns,
all fights accruing from its ownership of the Property, including the right to engage in or permit
or invite others to engage in all uses of the Property that are not expressly prohibited herein and
that are not inconsistent with the purposes oftlfis Easement. Without limiting the generality of
the foregoing, the following rights are hereby expressly reserved:
(a) maintenance of existing roadways;
Co) bird-watching and wildlife observation;
(c) hiking and cross-country skiing; and
(d) mowing and burning of existing grasslands for the purpose of
ecological restoration as defined in Exhibit C;
In the event that Grantor desires to undertake activities not permitted by the foregoing paragraph
3, and not prohibited by the provisions of paragraph 4 below, Grantor shall notify Grantee as
provided in paragraph 5 below.
4. Prohibited Uses. Any activities on or use of the Property inconsistent with the
purposes of this Easement is prohibited. Without limiting the generality to the foregoing, the
following activities and uses are expressly prohibited:
(a) construction, erection or placement of any building or structure,
whether commemial, residential or industrial;
(b) dumping of ashes, trash, rubbish, garbage, offal, or any other
unsightly or offensive materials;
(c) placing billboards, outdoor advertising structures, or
advertisements of any kind on the Property; excepting real
estate signs of reasonable size intended to assist in the sale of
the Property, and entrance, boundary, and educational signs
approved in advance as to size and content by Grantee;
(d) any exploitation of mineral resources, by either subsurface or
surface means;
(e) introduction of non-native plant or animal species, except as
may be necessary, with the prior approval of Grantee, for
erosion control purposes;
(f) commercial timber harvest, however the removal of diseased
and hazard trees is allowed with written approval by the
Grantee. Any tree removal shall be in accordance with good
forestry management practices and further the intent of this
easement;
(g) construction or enlargement of any road;
(h) alteration of the topography of the Property or its drainage
systems, except, with prior approval of Grantee, for purposes of
erosion control, drainage tile repair, enhancement of wetland
and pond values, public safety considerations, or for purposes
protective of the natural integrity of the Property;
(i) installation of utility structures or lines, except with the prior
approval of Grantee;
5. Notice of Intention to Undertake Certain Activities. The purpose of
requiting Grantor to notify Grantee prior to undertaking certain activities, as provided in
paragraph 3, is to afford Grantee an opportunity to ensure that the activities in question are
designed and carried out in a manner consistent with the purposes of this Easement. Whenever
notice is required Grantor shall notify Grantee in writing not less than sixty (60) days prior to the
date Grantor intends to undertake the activity in question. The notice shall describe the nature,
scope, design, location, timetable, and any other material aspect of the proposed activity in
sufficient detail to permit Grantee to make an informed judgment as to its consistency with the
purposes of this Easement. Crnmtee shall grant or deny its approval in writing within (30) days
of receipt of Grantor's written request therefor. Grantee's approval may be denied only upon a
reasonable determination by Grantee that the action as proposed would be inconsistent with the
purposes of this Easement. Should Grantee fail to respond to Grantor's notice within the said 30-
day response period, Grantee shall be deemed to have approved the proposed activity. If Grantee
denies the request, Grantor may bring an action for a judicial determination of whether or not the
proposed activity is consistent with the purposes of this Easement.
6. Grantee's Remedies. If Grantee determines that Grantor is in violation of the
terms of this Easement, or that a violation is threatened, Grantee shall give written notice to
Grantor of such violation and demand corrective action sufficient to cure the violation and,
where the violation involves injury to the Property resulting from any use or activity inconsistent
with the purposes of this Easement, to restore the Property so injured. If Grantor fails to cure the
violation within thirty (30) days after receipt of notice thereof from Grantee, or under
circumstances where the violation cannot reasonably be cured within a thirty (30) day period, fail
to begin curing such violation within the thirty (30) day period, or fail to continue diligently to
cure such violation until finally cured, Grantee may bring an action at law or in equity in a court
of competent jurisdiction to enforce the terms of this Easement, to enjoin the violation ex pane
as necessary, by temporary or permanent injunction, to recover any damages to which it may be
entitled for violation of the terms of this Easement or injury to any conservation value protected
by this Easement, including damages for the loss of scenic, aesthetic, or environmental values,
and to require the restoration of the Property to the condition that existed prior to any such
injury. Without limiting Grantor's liability therefor, Grantee, in its sole discretion, may apply
any damages recovered to the cost of undertaking any corrective action on the property. If
Grantee, in its sole discretion, determines that circumstances require immediate action to prevent
or mitigate significant damage to the conservation values of the property, Grantee may pursue its
remedies under this paragraph without prior notice to Grantor or without waiting for the period
provided for cure to expire. Grantee's rights under this paragraph apply equally in the event of
either actual or threatened violations of the terms of this Easement, and Grantor agrees that
Grantee's remedies at law for any violation of the terms of this Easement are inadequate, and that
Grantee shall be entitled to the injunctive relief described in this paragraph, both prohibitive and
mandatory, in addition to such other relief to which Grantee may be entitled, including specific
performance of the terms of this Easement, without the necessity of proving either actual
damages orthe inadequacy of otherwise available legal remedies. Grantee's remedies described
in this paragraph shall be cumulative and shall be in addition to all remedies now or hereafter
existing at law or in equity.
6.1 Costs of Enforcement. Any costs incurred by Grantee in enfoming the terms
of this Easement against Grantor, including, without limitation, costs of suit other than attorneys'
fees, and any costs of restoration necessitated by Grantor% violation of the terms of this
Easement, shall be borne by Grantor. If Grantor prevails in any action brought by Grantee to
enfome the terms of this Easement, Grantor's costs of suit other than attorneys' fees, shall be
borne by Grantee.
6.2 Grantee's Discretion. Enforcement of the terms of this Easement shall be at
the discretion of the Grantee, and any forbearance by Grantee to exercise its rights under this
Easement in the event of any breach of any term of this Easement by Grantor shall not be
deemed or consWaed to be a waiver by Grantee of such term or any subsequent breach of the
same or any other term of this Easement or of any of Grantee's fights under this Easement. No
delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantor
shall impair such right or remedy or be construed as a waiver.
6.3 Waiver of Certain Defenses. Grantor hereby waives any defense of laches,
estoppel, or prescription.
6.4 Acts Beyond Grantor's Control. Nothing contained in this Easement shall
be construed to entitle Grantee to bring any action against Grantor for any injury to or change in
the Property resulting from causes beyond Grantor's control, including, without limitation, fire,
flood, storm, and earth movement, or from any prudent action taken by Grantor under amergency
conditions to prevent, abate, or mitigate significant injury to the Property resulting from any such
cause.
6.5 Arbitration. If a dispute arises between the parties concerning the
consistency of any proposed use or activity with the purposes of this Easement, and Grantor
agrees not to proceed with the use or activity pending resolution of the dispute, either party may
refer the dispute to arbitration by request made in writing upon the other. Within thirty (30) days
of the receipt of such request, the parties shall select a single arbitrator to hear the matter. If the
parties are unable to agree on the selection of a single arbitrator, then each party shall name one
arbitrator and the two arbitrators thus selected shall select a third arbitrator; provided, however.
that if either party fails to select an arbitrator, or if the two arbitrators selected by the parties fail
to select the third arbitrator within fifteen (15) days after the appointment of the second
arbitrator, then in each such instance a proper court, on petition ora party, shall appoint the
second or third arbitrator, or both as the case may be, in accordance with Iowa statutory authority
or any successor statute then in effect. The matter shall be settled in accordance with Iowa
statute or other appropriate procedural reference then in effect, and a judgment on the arbitration
award may be entered in any court having jurisdiction thereof. The prevailing party shall be
entitled, in addition to such other relief as may be granted, to a reasonable sum as and for all its
costs and expenses related to such arbitration, including, without limitation, the fees and
expenses of the arbitrators but not including attorneys' fees, which shall be determined by the
arbitrators and any court of competent jurisdiction that may be called upon to enforce or review
the award.
7. Access. No right of access by the general public to any portion of the Property
is conveyed by this Easement.
8. Costs and Liabilities. Grantor retains all responsibilities and shall bear all
costs and liabilities of any kind related to the ownership, operation, upkeep and maintenance of
the Property, including the maintenance of adequate comprehensive general liability insurance
coverage. Grantor shall keep the Property free of any liens arising out of any work performed
for, mater/als furnished to, or obligations incurred by Grantor.
8.1 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent
authority (collectively "Taxes"), including any Taxes imposed upon or incurred as a result of,
this Easement, and shall furnish Grantee with satisfactory evidence of payment upon request.
Grantee is authorized but in no event obligated to make or advance any payment of Taxes, upon
three (3) days' prior written notice to Grantor, in accordance with any bill, statement, or estimate
procured by the appropriate authority, without inquiry into the validity of the Taxes or the
accuracy of the bill, statement, or estimate, and the obligation created by such payment shall bear
interest until paid by Grantor at the lessor of 0 (zero) percentage points over the prime rate of
interest from time to time charged by Dubuque Bank and Trust or the maximum rate allowed by
law.
8.2 Hold Harmless. Grantor shall hold harmless, indemnify, and defend Grantee
and its members, directors, officers, employees, agents, and contractors and the heirs, personal
representatives, successors, and assigns of each of them (collectively "Indemnified Parties") from
and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims,
demands, or judgments, arising from or in any way connected with: (i) injury to or the death of
any person, or physical damage to any property, resulting rom any act, omission, condition, or
other matter relating to or occurring on or about the Property, and which are a result of the
negligence of Grantor, its officers or employees,
Grantee shall hold harmless, indemnify, and defend Grantor, and officers, employees, and
agents, from and against all liabilities, penalties, costs, losses, damages, expenses, causes of
action, claims, demands, or judgments, arising from or in any way connected with the injury ~o
or the death of any person, or physical damage to any property, resulting from any act, omission,
condition, or other matter relating to or occurring on or about the Property, and Grantor shall
hold harmless, indemnify, and defend Grantee and its members, directors, officers, employees,
agents, and contractors and the heirs, personal representatives, successors, and assigns of each of
them (collectively "Indemnified Parties") from and against ali liabilities, penalties, costs, losses,
damages, expenses, causes of action, claims, demands, or judgments, arismg from or ~n any way
connected with: (i) injury to or the death of any person, or physical damage to any property,
resulting from any act, omission, condition, or other matter which are a result of the neghgence
of Grantee, its officers, employees or agents.
9. Extinguishment. If circu_mstances arise in the future such as render the
purposes of this Easement impossible to accomplish, this Easement may only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction, and the mount of the proceeds to which the Grantee shall be entitled, after the
satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any
portion of the Property subsequent to such termination or extinguishment, shall be determined,
unless otherwise provided by Iowa law at that time, in accordance with paragraph 9.1.
9.1 Proceeds. This Easement constitutes a real property interest immediately
invested in Grantee, which, for the purposes of paragraph 9, the Parties stipulate to have a fair
market value determined by multiplying the fair market value of the Property unencumbered by
this Easement (minus any increase in value after the date of this grant attributed to
improvements) by the ratio of the value of this Easement at the time of this grant to the value of
the Property, without deduction for the value of this Easement, at the time of this Grant. The
values at the time of this grant shall be those used to calculate the charitable contribution if any
for federal income tax purposes allowable by mason of this grant, pursuant to Section 170(h) of
the Internal Revenue Code as amended, and applicable regulations. The value of this Easement,
as thus calculated, is intended to be the amount of thc allowable charitable contribution under the
"before and after" method of said regulations, without reduction for any amount that may not
produce an income tax benefit to Grantor on account, for example, of applicable percentage
limitations on charitable contributions. For the purposes of this paragraph, once calculated, the
ratio of the value of this Easement to the value of the Property unencumbered by this Easement
shall remain constant.
9.2 Condemnation. If this Easement is taken, in whole or in part, by exercise of
the power of eminent domain, Grantee shall be entitled to compensation in accordance with
applicable law.
10. Assignment. This Easement is transferable only upon the prior written
consent of Grantor and only to an organization that is a qualified organization at the time of
transfer under Section 170 (h) of the Internal Revenue Code of 1986, as amended (or any
successor provision then applicable), and the applicable regulations promulgated thereunder, and
authorized to acquire and hold conservation easements under Section 457A of the Code of Iowa
(or any successor provision then applicable). As a condition of such transfer, Grantee shall
require that the conservation purposes that this grant is intended to advance, continue to be
observed.
10.1 Executory Limitation. If Grantee shall cease to exist or to be a qualified
organization under Section 170 (h) of the Internal Revenue Code of 1986, as amended, or to be
authorized to acquire and hold conservation easements under Iowa law, and a prior assignment is
not made pursuant to paragraph 10, then Grantee's rights and obligations under this Easement
shall terminate.
11. Subsequent Transfers. Grantor agrees to incorporate the terms of this
Easement in any deed or other legal instnunent by which it divests itself of any interest in all or a
portion of the Property, including, without limitation, a leasehold interest. Grantor further agrees
to give written notice to Grantee of the transfer of any interest at least twenty (20) days prior to
the date of such transfer. The failure of Grantor to perform any act required by this paragraph
shall not impair the validity of this Easement or limit its enforceability in any way.
12. Estoppel Certificates. Upon request by Grantor, Grantee shall, within twenty
(20) days execute and deliver to Grantor any document, including an estoppel certificate, which
certifies Grantor's compliance with any obligation of Grantor contained in this Easement and
otherwise evidences the status of this Easement as may be requested by Grantor.
13. 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 either serve
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantors:
City of Dubuque
Attention: City Manager
50 West 13th St.
Dubuque, IA 52001-4133
To Grantee:
Iowa Natural Heritage Foundation
505 Fiith Ave., Suite #444
Des Moines, IA 50309-2321
Phone (515)288-1846
Attn: President
Or to such other address as either party fi.om time to time shall designate
by written notice to the other.
14. Recordation. Grantee 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.
15. General Provisions.
(a) Controlling Law. The interpretation and performance of this Easement shall be governed by
the laws of the State of Iowa.
(b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this
Easement shall be liberally construed in favor of the Grant to effect the purposes of this
Easement and the policy and purposes of Chapter 457A of the Code of Iowa. If any provision in
this instrument is found to be ambiguous, an interpretation consistent with the purposes of this
Easement that would render that provision valid shall be favored over any interpretation that
would render it invalid.
(c) Severabilit¥. If any provision of this Easement, or the application thereof to any person or
cimumstance, is found to be invalid, the remainder of the prowsions of this Easement, or the
application of such provision to persons or circumstances other than those as to which it is found
to be invalid, as the case may be, shall not be affected thereby.
(d) Entire A~eement. This instrument sets forth the entire agreement of the parties with respect
to this Easement and supersedes all prior discussions, negotiations, understandings, or
agreements relating to this Easement, all of which are merged herein. No alteration or variation
of this instrument shall be valid or binding unless contained in an amendment that complies with
paragraph 16.
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's
title in any respect.
(f) Joint Obligation. The obligations imposed by this Easement upon Grantor shall be joint and
several.
(g) Successors. The covenants, terms, conditions, and restrictions of this Easement shall be
binding upon, and inure to the benefit of, the parties hereto and their respective personal
representatives, heirs, successors and assigns, and shall continue as a servitude running in
perpetuity with the Property.
(h) Termination of Rights and Obligations. A party's r/ghts and obligations under this Easement
shall terminate upon transfer of that party's interest in the Easement or Property, except that
liability for acts or omissions occurring prior to transfer shall survive transfer.
(i) Captions. The captions in this instrument have been inserted solely for convenience of
reference and are not a part of this instrument and shall have no effect upon construction or
interpretation.
(j) Counterparts. The parties may execute this instrument in two or more counterparts, which
shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original
instrument as against any party who has signed it. In the event of any disparity between the
counterparts produced, the recorded counterpart shall be controlling.
16. Amendments. If circumstances arise under which an amendment to or
modification of this Easement would be appropriate, Grantor and Grantee are free jointly to
amend this Easement in writing and executed in the same mariner as this agreement; provided
that no amendment shall be allowed that would affect the qualification of this Easement or the
status of Crrantee under any applicable laws, including Chapter 457A of the Code of Iowa and
Section 170 (h) of the Internal Revenue Code of 1986, as amended, and any amendment shall be
consistent with the purposes of this Easement and shall not affect its perpetual duration. Any
such amendment shall be recorded in the official records of Dubuque County, Iowa.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Deed of
Conservation Easement on the day and year first above wnuen.
GRANTORS
Terrance M. Duggan, Mayor
City of Dubuque
GRANTEE
BY
Mark C. Ackelson, President
Iowa Natural HeriTage Foundation
GRANTOR ACKNOWLEDGMENT
STATE OF IOWA
COUNTY, SS:
On this day of ,2003,
before me, the undersigned, a Notary Public
in and for said State, personally appeared
Terrance M. Duggan, Dubuque City Mayor,
to me known
to be the identical persons named in and
who executed the foregoing instrument and
acknowledged that they executed the same
as their voluntary act and deed.
Notary Public
Commission Expires:
GRANTEE ACKNOWLEDGMENT
STATE OF IOWA
COUNTY, SS:
On this day of _, 2003, before me, the undersigned, a Notary Public in and for
said State, personally appeared Mark C. Ackelson, to me personally known, who being by me
duly sworn, did say that he is the President of said corporation, that no seal has been procured by
the said corporation; that said insmm~em was signed on behalf of said corporation by authority
of its Board of Directors; and that the said Mark C. Ackelson as such officer acknowledged the
execution of said instrument to be the voluntary act and deed of said corporation by it and by him
voluntarily executed.
Notary Public
Commission Expires:
EXHIBIT A
Legal Description
EXHIBIT B
OWNER ACKNOWLEDGEMENT OF CONDITION
The City of Dubuque and the Iowa Natural Heritage Foundation agree that the following Base
Line Data Information is an accurate representation of the protected property at the time of the
transfer.
Terrance M. Duggan, Mayor
City of Dubuque
Mark C. Ackelson, President
Iowa Natural Heritage Foundation
STATE OF IOWA
COUNTY, SS:
On this day of
200 _, before me, the undersigned, a
Notary Public in and for said State,
personally appeared Terrance M. Duggan
Dubuque City Mayor, to me known
STATE OF IOWA
COUNTY, SS:
On this day of
(add appropriate notary block here)
Notary Public
Commission Expires:
to be the identical persons named in and
who executed the foregoing instrument and
acknowledged that they executed the same
as their voluntary act and deed.
Notary Public
Commission Expires: