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Riprow Valley Trailhead Easemen
Prepared by: Laura Carstens, City of Dubuque, §0W. 13th Street, Dubuque, Iowa (563) 589-4210 RESOLUTION NO. 205-03 RESOLUTION DISPOSING OF CITY INTEREST IN CERTAIN RIGHTS FOR LOT I 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 Whereas, pursuant to resolution and notice of time and place of hearing, published in the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, iowa on the 6th day of June, 2003, the City Council of the City of Dubuque, Iowa met on the 16th day of June, 2003, at 6:30 p.m. in the Public Library Auditorium, 360 West 1 t Street, Dubuque, Dubuque County, Iowa to consider the disposal of the City's interest in certain rights in the real estate 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, the City Council of the City of Dubuque, Iowa overruled any and all objections, oral or written, to the disposal of the City's interest in certain dghts in such real estate. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. 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, which is contingent on the receipt of a grant from the Federal Recreational Trails Fund, be and the same is hereby approved. Section 2. That the conveyance of certain dghts in accordance with a deed of conservation easement, a copy of which is attached hereto, with the Iowa Natural Hedtage Foundation for 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, which is contingent on the receipt of a grant from the National Fish and Wildlife Foundation, be and the same is hereby approved. Resolution No. Page 2 - O3 Section 3. That the Mayor be authorized and directed to execute the letter of agreement and preservation covenant with the Iowa Department of Natural Resources and the Iowa State Historic Preservation Office, copies of which are attached hereto, and the City Clerk be and is hereby authorized and directed to deliver said letter of agreement and preservation covenant in accordance with the grant agreement for the Federal Recreational Trails Fund. Section 4. That the Mayor is authorized and directed to execute the deed of conservation easement with the Iowa Natural Hedtage Foundation, a copy of which is attached hereto, and the City Clerk be and is hereby authorized and directed to deliver said deed of conservation easement in accordance with the grant agreement for the National Fish and Wildlife Foundation. Section 5. That the City Clerk be and is hereby authorized and directed to record a certified copy of this resolution, the letter of agreement and preservation covenant with the Iowa Department of Natural Resources and the Iowa State Historic Preservation Office, and the deed of conservation easement with the Iowa Natural Heritage Foundation, in the offices of the City Assessor, Dubuque County Recorder and Dubuque County Auditor. Passed, approved and adopted this 16th day of June, 2003. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk RESOLUTION NO. 189- 03 RESOLUTION OF INTENT TO DISPOSE OF CITY INTEREST IN CERTAIN RIGHTS FOR LOT t OF '1 OF GOVERNMENT LOT #'1; LOT 1, ROCK CUT SUBDIVISION; AND LOT A OF GOVERNMENT LOT #t, ALL IN SECTION 6, T88, R3E, IN THE CITY OF DUBUQUE, IOWA FOR EASEMENTS FOR THE RIPROW VALLEY TRAILNEAD 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, IOW,~ Section 1. That the City of Dubuque intends to dispose of its interest in certain fights in accordance with said easements for 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. Section 2. That the conveyance of certain dghts 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 Government 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 2"d day of June, 2003. ~ Jeanne F. Schneider, CMC, City Clerk MEMORANDUM June 11,2003 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Riprow Valley Trailhead Easements 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 Ddve 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). The project consists of three major components: Dubuque Girls Independent League Softball Complex 2. A prairie area along the river leased to the IDNR 3. A trailhead for the Heritage Trail riverfront system The city has been awarded a Federal Recreational Trails Grant of $123,548. This grant is contingent on a preservation easement on 5.68 acres of land on the hillside area below the property owned by the Sisters of Chadty, BVM. Planning Services Manager Laura Carstens is recommending acceptance of this easement and approval of an agreement with the Iowa Natural Heritage Foundation to purchase the development dghts on this parcel and a small strip of land of 0.67 acres, along the Mississippi River, east of the railroad tracks for $60,000. It is important to note that giving up the development rights on this small strip of land along the river is an exception to the city policy that the city does not sell riverfront property. I believe this is appropriate because of the size of this parcel, the fact that it is isolated, and it is confined by railroad tracks and a bluff. The Iowa Natural Heritage Foundation had asked for a conservation easement on the approximately 12 acre praide area now leased by the IDNR, and I was unwilling to recommend that sale. This violates city policy of selling riverfront property on a piece of property that might have future options for alternative use. 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 MEMORANDUM May 28, 2003 TO: The Honorable Mayor and City Council Members FROM: SUBJECT: Michael C. Van Milligen, City Manager Riprow Valley Tmilhead Easements Plannh~ Services Manager Laura Carstens is recommending that a public headng be set for June 16, 2003, to consider grantiag two easements on city-owned land at the Riprow Valley Trailhead. I concur with the recommendation and respectfully request Mayor and City Council approval. Mic~hael C. Van Milllgen MCVIVI~3h Attachment cc: Barry Lindahl, Coq3omtion Counsel Cindy Steinhauser, Assistant City Manager Laura C;arstens, Planning ~ Manager Ken TeKippe, Finance Director Paul Horsfall, Water Pollution Control Plant Manager Gil Spence, Leisure Services Manager MEMORANDUM May 29 2003 TO: FROM: SUBJECT: Michael C. Van Milligen, City Manager Laura Carstens, Planning Services Manager Riprow Valley Trailhead Easements INTRODUCTION This memo transmits two easements required for grants for acquisition 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 Dubuq Je Drive and the Mississippi River owned by Bob Klauer. These groups are the Frienos 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 enclosed. Softball Corn tBg~.. 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 $4S, 578 federal grant towards acquisition of this property. The Dubuque Girls Independent Softball League received other grants and donations to complete development of the softbaJ complex, which opened this month. 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 area. 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 Spa~n and Julien Dubuque Monument. Riprow Valley Trailhead The trailhead 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 Riven¥ont 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 imit development of these two sites PROPERTY ACQUISITION The primary focus of the Riprow Valley work group has been to acquire the proper~y 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. Ktauer 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 will 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 agreement was s~gned 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 obtained. The guaranty agreement also contains a provision that the City will make a good faith effort 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 Traithead involves the purchase of Sites A and B, which total 6.35 acres. These s~tes 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 ~s 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 archeolog~cal sites on this site. Memoto MichaelVan Milligen RiprowValley 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 Riprow 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 obta n the funds from these two grants. Due to the extent that these easements will restrict development rights on the land to be acquired, [hey 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 RESOLUTION NO. -- 03 RESOLUTION OF INTENT TO DISPOSE OF CITY INTEREST IN DEVELOPMENT RIGHTS FOR LOT 1 OF 1 OF GOVERNMENT LOT #1; LOT 1, ROCK CUT SUBDIVISION; AND LOT AOF GOVERNMENT LOT #1, ALL N 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 :~roperty legally described as Lot I 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: and Whereas. obtaining these federal grants requires that the City of Dubuque provide easements for the preservation and conservation of the described 9roperb, by relinquishing certain development dghts in accordance with said easements; and Whereas, the City Council of the City of Dubuque, Iowa has determined that relinquishing these development dghts in accordance with said easements for the described proper~y 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 development dghts in accordance with said easements for 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. Section 2. That the conveyance of certain development dghts in accordance with a letter of agreement and preservation covenant with the Iowa Department of Natural Resources and the Iowa State Histodc Preservation Office for Lot 1 of 1 of Govemment 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 development rights in accordance with a deed of conservation with the Iowa Natural Hedtage Foundation for Lot 1 of 1 of Government Lot #1: Lot 1, Rock Cut Subdivision: and Lot A of Government Lot #1 alt 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 day of ,2003. Attest: Terrance M. Duggan, Mayor Jeanne F. Schneider, CMC. City Clerk Mount Carmel Sisters of Charity, BVM Site Site A Water Pollution Control Plant Railroad Julien Dubuque Monument Mar Jo Quarry Rd City Limits Mines of Spain Recreation Area Conservation Easement: Sites A and B Preservation Easement: Site A only 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. 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) 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) -123.548 3.335 -120.159 $ 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 $100000 160,000 49,578 14.096 $323,674 3,335 $327,OO9 Prepared November 21, 2002 Updated March 25, 2003 Updated May 27, 2003 Pending 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) $286,523 19,782 4,515 Total $31C,820 Federal Recreational Trails Funds -123,548 Catfish Creek Coalition-Considered Match Funds 3,335 (Received March 25, 2003) Pending Grant from National Fish and Wildlife Foundation60,000 Required Additional Guarantors Match 60.159 ($60.159 / 8 = $7,520 each) Net Additional Required to Satisfy Debt Obligation (Agrees with amount City committed in FY'04 budget) $ 63,778 Original Guarantors Commitment Pending Guarantors Commitment $30,000 $ 7,52O 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 160000 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 Admi0istrator' 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: an(~, 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); ant 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 condudted 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 1 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: 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. 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 ~n a timely manner. The City shall re-enter Section 106 consultation with the SHPO and other consulting parties on any future development activities that will occur in the 5.7 acre tract on the north side of Julien Dubuque Drive beyond the areas of previous disturbance. The DNR, as the LAWCON Grant originator will serve as the lead Federal Agency on these activities. The City shall withhold information concerning the nature and location of slues 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. In the event that previously unidentified archaeological resources are disCOvered within the area of potential effects, the 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. 1. 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 onginal notification of discovery, the DNR in consultation with the SHPO. will determine the National Register Eligibility of the resource. If the resource is determined eligible for the National Register, the City shall prepare a plan for its avoidance, further ~)rotection. recovery of information or destruction without data recovery. Such plan shall be approved by the SHPO pdor 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. Any disputes concerning the evaluation or treatment of previously unidentified resources wilt be resolved as ~rovided in Section F of this agreement entitled Dispute Resolution. 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 Iowa Code and is under the jurisdiction of the Iowa Department of Health. Any party to this agreement may object in writing to the other par~y 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. 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. 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 par[y 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 ~n effect. The Preservation Covenant attached as Appendix A shall be entered into between the City and the SHPO setting out the obi gations 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 historic properties. APPROVED: CITY OF DUBUQUE, IOWA By: Terrance Duggan Mayor Date: 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 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 KIauer north acquisition parcel, located 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: 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. 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 times to inspect Iowa Archaeological Sites 13DB678 and 13DB679 in order to ascertain if the above conditions are being observed. In the event of a violation of this covenant, and in addition to any remedy now or nereafter 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. This covenant shall be binding on the City, its successors and assigns for twenty-one (21) years from its effective date. At any time during 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. 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 tine 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 obiigatior~s 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 C Legal Description for Ri prow Valley Recreation Project Parcel ID# Legal Description 16-06-200-003 16-06-200-002 Lot 1 of 1 of Government Lot #1. Section 6, T88, R3E. in the City of Dubuque Lot 1 of I NW fractional corner of the NE corner. Section 6 T88. R3E. in the City of Dubuque o.r ATTACHMENT D s ATE I-IIS © C SOCIE ©F I© 7A V.,~bere p~ mee;s~re A, G 2 ? 2001 August 19, 2001 reply refer to: R&C#r 0004310,34 Blood Run NHL Larchwood Mr. James Scheffier, Executive Officer I1 Parks, Recreation & Preserves Iowa Depaxtment o£Natazal Resources Wallace State Office Building Des Moines, Iowa 50319 NPS - DUBUQUE COUNTY - CITY OF DLrBUQUE - LAWCON - RI?ROW VALLEY RESTORATION PROJECT - PROPOSED DEVELOPtvlL~NT OF 32 ACRES OF LAND FOR SOFTBALL COMPLEX - SEC. 6, T88N-R3E - ARCI-LAJEOLOGICAL REPORT ivP~ A,~ g4x3 Centenn~-I Building Dear Mr. Scheffier, Iowa City We have received the draft report entitled A Phase I Intensive Archaeolo~cal Survey for the Proposed Mardxew Edet Blacksmith Sho Riprow Valley Recreation Area for the City of Dubuque, Dubuque County, Iowa [Report No. 413] prepared ?~arshalltown t~y Ms. Wendy Holtz-Leith of the Mississippi Valley Archaeology Center (MVAC) at the Umvemity of Wisconsin-La Crosse. We have also received your July 26, 2001 letter of deterrninadon for fl~s project. We make the following comments and recmmuendafiens based on the results of this investigation, our Abbie Gardner Cabin consideration of your determination, and m accordance with section 106 of the National Fdstoric Preservation Amolds Park Act Of 1966 and its implementing re~mtlations 36 CPI( part 800 (rev/sod, effective January 11, 2001). lows ltistorical B~ildiug I have read through this report - twice, and hax'e a number of commants and concertos. Overall, I must say Des Motees that I am disappointed with the results of MVAC's investigation and their repprting. Fkst I believe that a number of vital tasks outlined in the City's scope of services, and in the comvaltant's own research design '- '~ (page 11 of the report) were not completed or were merely glossed over. Furthermure. I noticed that the Montauk Go'~ernur's Home Union Sunday Schgol' report lacks certain basic elements that may hsve helped to clarify many of the ambiguiti~.s found in the text Clermont Museum ........ ~inrt'mJght'l:mve lent support r© the consultant's interpretations and conclusions: Clermont All of the above-stated issues are discussed below following the provisions of the City's scope of service. PIum Grove Governor's Home Iowa City J. Review and synthesize ~he comprehensive background research the City has collected regarding the history of this property. Archival documents such as land title deeds, manuscripts, county htstories. Toolesboro Iadhn Mouad~ historic map~, e~r. ographic and ~avel accounts and photogr~hs were all consulted during; the research Toolesl~ro phase. It appears that little effort went into researching the post-contact history of the project area and that the Council BI~s ' ' consnltant only ufilized the most readily available ti~toric documents. Unfortunately, the end pro ' very Ionse and over-generalized h/storic contexu The basic tenant ofhistoxic archaeology is the use of non- archaeological records to identify and interpret archaeological resources or areas of archaeological potential. Typically, a comprehensive site-specific h/at©fy can only be developed through careful consideration of many different primary and secondary senrce~ such as proper~ ahslracts, census records, property mx roes and other gnvernrnent documents, ra/lroad records, treaties, newspaper articles, travelers accounts, historic paintings and sketches, photographs, aerial photographs, oral kistories and ettmographic accounts, etc. For example, the consnltunt pro,rides a brief account of George Catlln's visit to the area in the 1 $30s and includes his painting of the R/prow Valley as cover art to the report. Catlin's painting depicts Julien Dubuque's gravesite and Peter Lorimer's lead smelting operation at the mouth of the valley, but becanse of the scale, it is very difficult for the reader to glean 4my detail There is no reference to directional orientation IOWA HISTORICAL BUI1.DLNG 600 ~st Locust · Des Moines, Iowa 50319-0290 Phone: (515) 281-6412 - Fax: (515) 242-6498 or (515) 282-0502 wwwjowahi~ory, org and no discussion as to where Lorimer's opemdon 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 th the projear area. Conside.--ing Cattin's reputation as a prodigious chrohicler, I can not help but think that more information an Lorkner's smelting operation, and poss~?aly of the valley, might be contained within his journals. .Also, I notice that the b~ho~aphy section lists Lieutenant Albert Lea's 1336 emigrant's gu/de to the Wisconsin Territory as one of the resources consulted, but I have not been able to fred any reference to Lea in the text. Did he visit the Riprow valley in h/s travels? The published works of other contemporaries such as Newhall, Plumbs, Galland, P/ko, Schoolcraft, Beltram/, Black Hawk. and Long may also have provided some insight into the local history. In fact, Schaoloraft published a book in 1819 treating the subject of lead mining in the Ozark Mountains of Missouri and Arkansas. It is possible tho: he touched on the lead mi~iug induslry of Dubuque in th/s or later works. Finally, the author's failure to consult William ¢/'/J2de's recent history Dubuque on the Mis*issiiopi clearly demonstrates the superficiality of the hack~ound research and context development. Analyze and interpret information produced from soil borings previously extracted by the Ci~, 's geotechnical com'ultant (Terracon). Additional subsurface testing may need to be _oerformed to confirm or correlate geotechnicat data, or, if the evidence of previoz~ soil boringx i~ incomplete or inconclusive. Tbis investigation wilt be limited to the Il.31 acre site of the proposed Dubuque Girls Independent Leng~te Softball Compl~r. One of the mahi objectives of this study was to identify and evaluate potential buried hying surfaces across the entire site using ex/sting and supplemental data. The consultant does little more than transcn~be geotechidcal boring logs already at Sl-~O's disposal and then offers nothing in the way of scientific interpretation. In short, the geomorphologic assessment of the project corridor is vague, inconclusive, a.nd does not employ standardized iithostmfigraphic or Land Sediment Assemblage (LSA~ nomenclature. I can honestly say that I know nottfing more about the softs, geomorphohigy, and potential for deeply buried soils in the Riprow Valley than I did a year ago when we began consultation on this project. The inconchtsiveness of the geomorphohigic component is brought out in the author's own statement "The t 1 acres has been completely altered by repeated historic activity and the original ground surface is either deeply buried or the top soil has been removed." It is clear that the georaorphology work for this project was performed by a field archaeologist rather than by someone w/th a strong background in soil science and geomerphology. This is counter to the professional qualification requ/rements outlined City's RFP, wkich states that 'Toe proje~ geomorphologist must possess and demoustrata a familiarity with the lithos~atigraphy and Landform Sertime~at Assemblages (LSA's) of Eastern Iowa and the Mississippi trench.'~ In my opinion the weaknesses exin~oited in the geomorpholo~c interpretation presents serious implicatiom regarding thc credibility of the overall survey for the 11-acre ~act. Perform an intensive Phase I archeological investigation in areas slated for ground disturbance and that have a demonstratedpotentialfor surface-e~rposed or buried archeological site& Thi~ inv~gazion ~ limited to the J 1.31 acre site of the proposed Dubuque Girls Independent League Softball Comple:c sits. The report does no~ document the number, locations, arid depths of mbsurface tests perforr~d in the area, 'therefore I have no way to gauge the extent of the survey coverage. Page 3-68 of the Gztid¢tinesfor ~trchaeolooo'icalInvexZigai~'ons in Iowa dictates the proper method for documenting relevant survey information within the text of an archaeological report Kecorcl~tion of subsurface test locations on a site map is a standard practice in contemporary, archaeological report/ag across the United States. The Iowa Sl-~O's policy regard/ng ms/on of provenience documentation is to return the report without review. Furthermore, observed d~ing the sm~ey. Perform an intensive archaeological survey fbr the 5. 7-acre woodland tract that is outside of the proposed construction. The results of this investigation will be incorporated into the final report for the overall project 'see item 5 below). Preparation oft draft report which synthesizes and interprets archival, geomorphologicaL and archaeotogical dattL The reporr surnmary will provide preIiminary interpretations of archaeological sites that are encountered during survey. It wilI prov~de preliminary assessments regarding their significance within the appropriate context and, if possible, will offer comments regarding their National Register eligibility with respect to the appropriate Criterit~ The report will provide recommendations for further invesffgation if it is found to be necessary; and will develop mitigation or site preservation plans, as appropriate, for call sites judged to be National Register eligible tha~ are within the project Area of Potential Effects (APE). The consultant identified two archaeological sites within the 5.7-acre v~ooded tract. 13DB678 ks believed to be a small mine pit while 13DB679 is interpreted as a limestone quarry. The locations of these sites are recorded on an aerial photograph of the project area, wh/ch provides no scale (see Figure 15). The appropriate USGS topographic map(s), modified to depict the s/te locations, should have been incorporated to supplement Figure 15 and the text description. Individual sits maps, tied to a known reference datum, should also have been prepared, which deta/1 the locations of positive and negative tests, surface anomalies, etc. This ks standard procedure hi archaeological documentation and reporting. I am at a loss 'as to why this basic information was omitted from the report. The Iowa SI-12PO's Guidefines for Archaeological Investigations in lows is intended to provide =mfidence to agency officials, indiv/duats, and archaeological consultants. This includes points on report preparation including format and content. Item ~ of the City's Scope ~l~es that ~Tha report shall be }n accordance with-~txe: Secr~tm-y~of Interior Standards and the CruideIine~for,Archaedlogicat.trrvestigations'in-Iowa .... ? - t7999).' Greater attention should have been given to this document during the preparatiOn of the project report. Finally, thc consultant's research design proposes that: "Site boundaries will be delineated, both horizontally and vertically." "The Phase 1 survey will attempt ro determine if any located sites are eligible for listing on thc National Register of Hkstoric Placez and the cultural affiliation, age, and style er resource. The site bouudades have not been defined: no recommendations for National Regkster ellgi~bility were made; and lastly, there ks no mention of a preservation plan for ¢ither site. These deficiencies will not result in delays or other complications for the project since there are no immediate plans to develop the 5.7-acre wooded parcel. Still it is somewhat diseoncecfing when consultants do not follow fuck own research design. As a result, unfortunately, the City will have to shoulder the added expense of further archaeological work if it wishes m proceed with any future devalopment of this property. The ovcrali effect is that the report does not do justice to the Pdprow Valley's extensive kistory, its potential m contain archaeological resources that could significantly contffbute to a better understanding of local, state and National history, and its probable association with the Mines of Spain National Historic Landmark.. Frankly, I find that it leaves the reader with more questions than answers. Nevertheless, despite the deficiencies of ~ investigation, I believe that the City has made a reasonable and good faith erfurt in its atrernprs to comply with section 106. and, that it would not be in the public's best interest to delay the hnplementation of tiffs u~dertaklng farther by requiring additional historic pmp¢rties invesugatiom at tiffs t~lle. Therefore,/t is with some trepidation that I recommend concurrence with your determination of 'no adverse effects' witb tile following conditions. hi consultation w/th the SHPO, the City shall develop an historic preservation covenant for the 5.7 acres tract located to the north of the Julian Dubnque Drive· The purpose of this a~eement is protect sites 13DB678. 13DB679, and any other un/dentffied historic properties that may he located vAthhi the property boundar/es. The covenant shall include caveats stating that arty future development activities or divestiture of this property, in part or in whole, must first consider the action's effects on kisteric properties by reentering the section 106 consultation process with the SHPO and other interested parties, and, that options for renewal will be considered by the SH?O and the City prior m its 20-year e,-cp/ration date· Th/s document wflI be fried with the County Recorders Office and ~hall be attached as a rider to the property rifle deed. A copy will also be placed on file at the Iowa State Historic Preservation Office m Des Moines. · The archaeological consultant will make the following revisions to the report and submit a final draft to the SHPO for fi/lng. Revised methods section describing the types, numbers, locations, maramum and rnimruum depths of subsurfuce tests performed in both survey areas. 2. A project location map on the appropriate USGS 7.5 minute qua~ illnstiating the locations of subsurface test locations, sites 13DB678 and 13DB679, and areas of noted disturbance. ' ' .... - · '3.' ~/te maps for 13DB678'a~d 13DB6g9 depicting'the'locations ofa~ subsuffac~ ~sts, surface If design changes are made for this project which would/nvolve undisturbed new rights-of-way or easements, please forward additional kiformation to our office for further comment along with the Agency Official's determination of effect. If project activities uncover an item(s) that might be of archeohigical, kistorical or architectural interest, or if important new archeologicat, historical or m~hiteot~wal data ~ould be encountered in the project APE, you should make reasonable efforts to avoid or minimize impacts to the proper[y until an assessment can be made by a quahfied archaeologist. Please feel free to cunmcr me ar (515~-81-8744 if you have any questions or reqdire further assistance. Iowa State H/s~o~,~l~'eservation Office Mr. Robert Bos~h~rdt, Project Manager, Mississippi Valley Archaeology Center Ms. Lisa Sesterhe~u, Assismut Plmmer, City of Dubuque Mr. Junathn~ Buffalo. Historic Preservation Coordinato¢, Sac & Fox Tn'be of Mississippi in Iowa Ms. Marianne Long, Cultural Preser~afionist, Iowa Tribe of Oklahoma Prepared by: Darrel Mills, Iowa Natural Heritage Foundation, 505 5th Ave. g444, Des Moines, 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 WltEREAS, 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 WHEREAS, 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 conmsts 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 time 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; WltEREAS, Grantor further intends to convey to Grantee the right to preserve and protect the conservation values of the Property m perpetuity; and WltEREAS, Grantee is a pnvate, 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 WltEREAS, 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 rights 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 enforce 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 proposes 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 rights 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 ofth/s Easement. Without limiting the generality of the foregoing, the following fights are hereby expressly reserved: (a) maintenance of existing roadways; (b) 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 commercial, 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 Proper~y; 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; (c) 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 farthcn' 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 requiring 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 carded 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. Grantee 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 purpoies 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 or the inadequacy of otherarise 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 enforcing 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's violation of the terms of this Easement, shall be borne by Grantor. If Grantor prevails in any action brought by Grantee to enforce 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 construed 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 rights 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 emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting fi:om any such cause. 6.5 Arbitration. Ifa 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 ora 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 of a 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 ail 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 alt 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, materials fin-uished 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 ofpaymem 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 pr/me 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 from any act, omissmn, 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 judgrnents, arising from or in any way connected with the injury to 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 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 from any act, omission, condition, or other matter which are a result of the negligence of Grantee, its officers, employees or agents. 9. Extinguishment If circumstances ar/se 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 amount 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 reason 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 the allowable charitable contribution under the "before and after" method of said regulations, without reduction for any amount that may nm produce an income tax benefit to Grantor on account, for example, of applicable perccmtage 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 Proper~y unencumbered by this Easement shall remain constant. 9.2 Condemnation. If this Easement is taken, in whole or in pan, 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 fights 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 instrument 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 pr/or 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 520014133 To Grantee: Iowa Natural Heritage Foundation 505 Fifth Ave., Suite #444 Des Moines, IA 50309-2321 Phone (515)288-1846 Attn: President Or to such other address as either parry from 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 role 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) Severabilitv. If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions 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 Agreement. 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 rights 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 circmustances 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 manner as this agreement; provided that no amendment shall be allowed that would affect the qualification of this Easament or the status of Grantee under any applicable laws, including Chapter 457A of the Code of Iowa and Section 170 (It) of the Internal Revenue Code of t986, 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 wmten. GRANTORS Terrance M. Duggan, Mayor City o£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 Te~rance 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 instrument 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. /s/ 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 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: STATE OF IOWA COUNTY, SS: On this __day of ., (add appropriate notary block here) Notary Public Commission Expires: 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 Restoratior. 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.SC. 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 witl construct a softball complex or~ 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 alt 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 prewously 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. The City shall prohibit any activities in the 5.7 acre tract beyond the areas of prewous 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 wilt be addressed with remedial action in a timely manner. The City shall re-enter Section 106 consultation with the SHPO and other consulting parties on any future development activities that will occur in the 5.7 acre tract on the north side of Julien Dubuque Drive, beyond the areas of previous disturbance. The DNR. as the LAWCON Grant originator, will serve as the lead Federal Agency on these activities. 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. In the event that previously unidentified archaeological resources are discovered within the area of potential effects, the City shall halt all construction work involving subsurface disturbance in the area of the resource and in the surTounding area where further subsurface remains can be reasonably be expected to occur and notify the DNR and the SHPO of the discovery. 1. An archaeologist meeting the Secretary of Interror'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 archaeoiogical resource. 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. 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 pdor 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. Any disputes concerning the evaluation or treatment of previously unidentified resources will 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 Iowa 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 par~y within 30 calendar days to any action carried out pursuant to this agreemenT. Upon rece~wng 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 tt 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. 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 ma~ r~tenance 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 [hat the DNR, the City and the SHPO have consulted on the Riprow Valley Recreation Area and the effects thereof historic properties, and that the City has taken into account the effects of the undertaking on histodc oroperties. 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 A Preservation Cove nant 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 describec 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 ~owa 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. 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 prewous 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 times to inspect Iowa Archaeological Sites ' 3DB678 and 13DB679 in order to ascertain if the above conditions are being observed. 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 KJauer 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 during 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 DNR 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. 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 STATE HISTORICAL SOCIETY OF IOWA August 19, 2001 In reply refer to: R&C#:'000431034 American Gothic Ho~se ~don Blood Run NHL Larchwood Mx. Jmes Scheffier. Executive Officer Parks, Recreation & Preserves Iowa Department of Natural Resources Wallace State Office Bu/ldiug Des Moines_ Iowa 50319 NPS - DUBUQUE COUNTY - CITY OF DUBUQUE - LAWCON - RI~ROW VALLEY - tLESTORATION PROJECT - PROPOSED DEVELOPM_ENT OF 32 ACRES OF LAND FOR SOFTBALL CON[PLEX - SEC. 6. T88N-R3E - ARCHAEOLOGICAL KI:x'uRT Cent~,,,,5~t Building Dear Mir. Scbeffiar, Iowa City We have received the draft report entitled A Phase I Inter~ive Archaeolo~cal Survey for the Proposed Riprow Valley Recreation Area for the City of Dubuque, Dubuque County, Iowa [Report No. 413] prepared Ma~l?~.. Edel Blacksmith Shopoy M~ Wendy I-Ioltz-Leith of t~e Mississippi Valley Aanhaeology Center (MVAC) at the Umversity of Wisconsin-La Crosse. We have also received your July 26, 2001 letter of determination for this project. We ruake the following comments and recommendations based on the results of this investigation, our Abbic Gardner Cabin consideration of your determination~ and in accordance with section t06 of the National Historic Preservation Amolds Park Act Of 1966 and its/mplmnentmg regulatinus 36 Clog_ part 800 (revised, effective Jenuary 1 I, 2001). Iowa Historical Building I have read through this report - twice, and have a n*xmher of commants and conceras. Overall, I mast say Des Moines that I am disappointed with the results of MVAC's investigation and their reporting. Fizst, I believe that a number of vital m~k~ outlined in the City's scope of services, and in the consultant's own research design ~"~ (page 11 of the report) were not completed or were merety glossed over. Furthermore, I not/ced that the Montauk Go~ernor's Home Union Sunda~, School .~epo.~. lacks certain basic elements that may have helped to clarify many of the ambiguiti~ found in the text Clermour Museum ~: ~-:- ~t might have lent suppor~o the consultant s interpretations and conclus/ons; ' Clermont All of the above-stated issues are discussed below following the providons of the City's scope of service. Plum Grove Governor's Home Iowa City 1. Review and ~nthesize ~he comprehensive background research the City has collected regarding the history of this pro, oerty. Archival documents such as land title deeds, manu~cripis, county histories, Tc~alesburo Indian Mounds historic maF~, ettmographic and ~aYe! accounts and photograph~ were all consulted during the research Toolesburo phase. It appears that little effort went into researching the post-contact history of the project area and that the we~ern HJstoncTmils Cca~rer e end roduct is a Couadl BI~ ' ' consultant only utilized the most readily available l~/stodc documents. Uaformnately, th p ' very loose and over-generalized historic context. The basic tenant of historic archaeology is the use of nora archaeological records to identify and interpret archaeological resources *r areas of archaeological potential. Typically, a comprehemive site-specific history can only be developed through careful consideration of many different p6m~ry and secondary sources such as prop~[y abstracts, census records, property tax rolls and other government documents, railroad records, treaties, newspaper articles, travelers accounts, kisturic paintings and sketches, photographs, aerial photographs, oral histories and ethnographic accounts, etc. For example, the consultant prey/des a brief account of George Catlin's visit to the area in the 1830s and includes his palut/ng of the R/prow Valley as cover art to the report. Catlin's painting depicts Julien Dubuque's graves/to and Peter Lorkner's lead smelting operation at the mouth of the valley, but because of the scale, it is very ddfficult for the reader to glean any detail. There is no reference to directional orientation IOWA HISTORICAL BUll.DING 600 Eust Locust · Des Moines, lowa 5051943290 Phone: (515) 281-6412 · Faxz (515) 242-6498 or (515) 282-0502 ~.iown hlm~ory, erg and no discussion as To where Lomer's operation was in relation to the project area. I assume that the view /s to the northwest, wh/ch, by my reckoning would place Lomer's furnace right in the project ar~a~ Considering Catlin's reputation as a prodigious chronicler, I can not help but tbi~k that more izfformation on Lorimer's smelting operation, and possibly of the valley, might be contained withiu his joumal~ Also, [ notice that the bibliography section lists Lieutenant Albert Lea's 1836 emigrant's guide to the Wisconsin Territory as one of the resoexces consulted, but I have not been able to find any reference to Lea th the text Did he v~it the P~prow valley in h/s ~ravels? The published works of other contemporaries such as NewhalL Phimbe, Galland. P~e, Sshoolcrafc, Beltrami, Black Hawk, and Long may also have provided some insight into the local history, hr fac~, Schoolcra~ published a book in 18 I9 treating the subject of lead mining in the Ozark Mountains of Missouri and Arkansas. It is possible that he touched on the lead indus~zy of Dubuque hi thks or later works. Finally, the author's failure to consnit William Wi~k/e's recent h:h:h:h~ory Dubuque on the Mississippi clearly demonstrates the superficiality of the background research and context developmen~ 2. Analyze and interpret information produced from soil borings previously exlracted by the CiG 's geotechnical consultant (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 investigation will be limited to the 11.3i acre site of the proposed Dubuque Girls Independent League Softball Complex. One of ~be mean objectives of tim study was to identify and evaluate potential buried living surfaces across the entire site using existing and supplemental data. The consultant does lhrle more than transcribe geotec&afical boring logs already at SI-IPO's d/aposal and then offers nothiag ia the way of sciemSfic inrorprotatiora Ia short, the geomorpholog/c assessment of the project corridor ks vague, inconclusive, and does not employ stundardized lithostrafigraphic or Land Sediment Assemblage (LSA) nomenclature. I can honestly say that I know nothing more about the softs, geomorphology, and potandal for deeply buried so/Is in the Riprow Valley ~-han I did a year ago when we began commltation on this project. The inconchisivennss of the geomorphohig/c component is brought out in the author's own statement "The 11 acres has been completely altered by repeated kksto~c activ/ty and the original ground surface is either deeply buried or the top soil has been removed." It is clear that the geomorpliology work for tiffs project was performed by a field archaeolog/st rather than by someone with a strong backgrotmd in soil science and geomorphology. This ks counter to the professional qualification re~ents outliaed City's RFP, which states that ~e project geomorphologist must possess and demomtrate a familiarity with the lithostratigraphy and Landform Sediment Assemblages (LSA's) of Eastern Iowa and the Mississippi trencl~ '~ in my opinion the weaknesses exhibited in the geomorphologic interpretation presents serious implications regarding the crod~bilhy of die overall su~vcy for the 11 -acre ~mct. Perform an intensive Phase t archealogical investigation in areas slated for ground disturbance and that have a demonstrated potential for surface-~rposed or buried archeological sites. This investigation ia limited to the J ].31 acre site of the proposed Dubuque Girls Independent League Softball Complex site. 'I~e report does not document the number, locations, arid depths of subsurface tests performed in the area, therefore I have no way ~o gauge the extent of the survey coverage. Page 3-68 of the Guidelines for Archaeological Invextiga~ons in Iowa dictates the proper method for documenting ralevmat survey information within the text of an archaeolog/cal report. Recordation of subsurface test local/om on a site map is a standard practice in contemporary archaeolog/cal reporting across the United States. The Iowa policy regarding omission of provenience documentation is to return the report without rev/ew. Furthermore, based on the scattered references to negative shovel tests, I assume that no artifacts were recovered or observed during the survey. Perform an intensive archaeological survey.~br the 5. 7-acre woodland tract that tx outside of the proposed construcffon. The results of this investigation will be inco~orated into the ftnal report for the overall project (see item 5 below/. Preparation ora draft report which synthesizes and interpret~ archival, geomorphological, and archaeological data. The reporr surnmary witl provide preliminary interpretations of archaeological sitex that are encountered during surve?. It will provfde preliminary assestmen~s regarding their sign~cance *vithin the appropriate context and, if possible, will offer commend regarding their National Register eligibility with respect to the appropriate Criteria. The report wilI provide recommendations for further inve~gation if R is found to be necessary; and will dc, velop mitigation or site preservation plans, ax appropriate, for dl sites judged to be National Register eligible that are w~thin the project Area of Poten~al Effectx The consultant identified two archaeological sites within the 5.7-sere wooded tract. 13DB678 is bet/eyed to be a small mine pit while 13DB679 is interpreted as a limestone quarry. The locations of these 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 to supplement Fi=mu-e 15 and the text description. Individual site maps, tied m a known reference datum, should also have been prepared, which detail the locations of positive and negative tests, surface anomahes, etc. This is standard procedure hi amhaeological documentation and reporting. [ am at a loss as to why this basic information was omitted from the report. The Iowa SI-IPO's Guidelines for Archaeological Investigations in Iowa is intended to provide =maidance to agency officials, ind/v/duais, and archaeological consultants. This hicludes points un report preparation i~c~u.~din_g lo.rrna? and content- Item ~ of the City's Scope stipulates that 'The report shall be m accordance with-the' Secretary-of ~tenor Standards and the Guzddme~'for.Archaeo~ogwat.{rrvartrganons m.lawa ....... ('1999).' Greater attention should have been given to this document during the prepumtion of the projeer report. Finally, thc consultant's research design proposes that:. and, "Site bound'aries will be delineated, both horLzontally and vartically." "The Phase I survey will attempt ro determine if any located sites are eligible for listing on the National Register of Historic Places and the cultural affiliation, age, and style er msoerce. The site boundaries have not been defined; no recommendations for National Register elJgibihty were made; and lastly, ¢2aere is no mention of a preservation plan for ¢ither site. These deficiencies will nor result in delays or other comphcations for the project since ttrere ere no immediate plans to develop the 5.7-acre wooded parcel. Still, it is somewhat ddsconcerting when consulumm do not follow their own research desig~ As a result, unfortunately, the City will have to shoulder ~ 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 R/prow Valley's extensive history, its potential to contain arehaeohig/cal resources that could sigai.ficanfly contribute to a better ondersmnding of local, stare mad National history, and its probable association with the Mines of Spain National H/stofic Landmark. Frankly, I fired that it leaves the reader with more questions *h.~n answers. Nevertheless. despite the dcficiencins of this investigation, I believe that the City. has made a reasonable and good faith effort in its attompts to comply with section 106, and, that it would not be in the public's best interest to dela~ the implementation of this undertaking further by requlzing additional historic p~opurtics investigations at this time. Therefore, it is with some trepidation that I recommend concmrence with your determination of 'no adverse effects' with thc following conditions. In consultation with the SI-~O, the City shall develop au historic preservation covenaut for the 5.7 acres tract located to the north of the Julier~ Dubuque Drive. The purpose of leis a~eement is protect sites 13DB678, 13DB679, and any other anidentified historic properties *,hat may be located within the property boundaries. The covenant shall include caveats stating that any future development activities or divestitare of this property, in part or In whole, must first consider the action's effects on historic properties by reentering the section 106 consultation process with the SHPO and other interested parties, and, that options for renewal will be considered by the SIlO and the City prior to its 20-year expiration date. This document will be filed with the Count7 Recorders Office and shall be attached as a rider to the property title dee& A copy will also be placed on file at the Iowa State Historic Preservation Office in Des Moines. · The archaeological consultant will make the iblIowiug revisions to the report and submit a final draft to the SI-tPO for filing. 1. Kevised methods section describing the types, numbers, locations, maXmaum and miuimum depths of subanrface tests performed in both survey areas. 2. A project location map ou the appropriate USGS 7.5 minute quads illustrating the hications of subsurface test locatious, sites 13DB678 and 13DB679, and areas of noted disturbance. " " .... '" '3:' Site maps for 13DB678'and 13DB679 depicting the'locations of ali subSUrfac~ ~sts, surface anomal/es, features, etc. If design changes are made for this project which would involve undisturbed new rigb. ts-ef~way or easements, please forward additional information to our office for further comment along with the Agency Official's determi~atien of effect~ If project activities uncover anitem(s) that might be ofarcheolo~cal, h/storical or architectural Interest, or ii-important new archeolegicat, historical or architecmra! data should be encountered in the project APE, you shoulct make reasonable efforts to avoid or rnin~rni~ze impacts to the property until an assessment can be made by a qualified archaeolog/st Please feel f~ee to contact me at (515/81-8744 if you have any questions or require further assistance. Iowa State Hi~u~,~aervation Office Cc: Mr. Robert Bos¢h~rdt, Project Manager, Mississippi Valley Archaeology Center Ms. Lisa Sesterhenn, Assi~ant Planner, City of Dubuque Mr. Jonathan Buffaio, Historic Preservation Coordi'nmtor, Sac & Fox Tn'be of M~issippi in Iowa Mm. Marianne Long, Cultural Preservafionist, Iowa Tribe of Oklahoma Attachment C Legal Description for Riprow Valley Recreation Project Parcel ID# Legal Description 16-06-200-003 16-06-200-002 Lot 1 of 1 of Government Lot #1. Section 6, T88. R3E. in the City of Dubuque Lot 1 of I NW fractional corner of the NE corner Section 6 T88. R3E. in the City of Dubucue Prepared by: Darrel Mills, Iowa Natural Heritage Foundation, 505 5th Ave. #444, Des Moines. 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 WHEREAS, 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 time 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 WHEREAS, Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect m 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 rights 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 enforce 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 reqnire the restoration of such areas or features of the Property that may be damaged by any inconsistent activity or use, pursuant to the prowsions of paragraph 6 hereof. 3. Permitted Uses. Grantor reserves to itself, and to its successors and assigns, all rights 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 of this Easement. Without limiting the generality of the foregoing, the following rights are hereby expressly reserved: (a) maintenance of existing roadways; (b) 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 commercial, 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 requiring Grantor to notify Grantee prior to undertaking certain activities, as provided in paragraph 3, is to afford Grantee an opportunity to ensure that thc activities in question are designed and carried out in a manner consistent with thc 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. Grantee 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 thc action as proposed would be inconsistent with thc 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 parte 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 or the 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 enforcing thc 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 enforce 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 exercme its rights under this Easement in the event of any breach of any term of this Easement by Grantor shall not be deemed or construed 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 Crrantee's rights 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 emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from any such cause. 6.5 Arbitration. Ifa 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 tlfirty (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 (t5) days after the appoinunent of the second arbitrator, then in each such instance a proper court, on petition of a 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 fight of access by the gcmeral 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 flee of any liens ar/sing out of any work performed for, materials 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, tiffs 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") fi'om 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 from any act, omission, condition, or other matter relating to or occunSng on or about the Proper[y, 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 m or the death of any person, or physical damage to any property, resulting from any act, omissmn, condition, or other matter relating to or occurring on or about the Proper[y, and Grantor shall hold harmless, indemnify, and defcmd 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 judgmems, arising from or in 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 negligence of Grantee, its officers, employees or agents. 9. Extinguishment. If circumstances arise in the future such as render the proposes 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 competem 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 Se 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 the 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 rema'm 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 not made pursuant to paragraph 10, then Grantee's rights and obligations under this Easemem shall terminate. 11. Subsequent Transfers. Grantor agrees to incorporate the terms of this Easement in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Property, includ'mg, 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 13~' St. Dubuque, IA 52001-4133 To Grantee: Iowa Natural Heritage Foundation 505 Fifth Ave., Suite #444 Des Moines, IA 50309-2321 Phone (515)288-1846 Attu: President Or to such other address as either party from 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 mterpretation that would render it invalid. (c) Severabilitv. If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the ramalnder of the provisions of tiffs 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 respec~ 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 Ri~mhts and Obligations. A party's rights and obligations und~ 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 hi 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 ohginal 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 flee jointly to amend this Easement in writing and executed in the same manner as this agreement; provided that no amendment shall be allowed that would affect the qualification of this Easement or the status of Grantee 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 Mth 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 written. GRANTORS Terrance M. Duggan, Mayor City of Dubuque GRANTEE BY Mark C. Ackelson, President Iowa Natural Heritage Foundation GRANTOR ACKNO%VLEDGMENT 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 instnmaent 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 instnkmem was signed on behalf of said corporation by anthor/ty 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 O%VNER 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