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Conservation Easement Agreement for Preservation of the Dubuque Shot TowerMasterpiece on the Mississippi MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Laura Carstens, Planning Services Manager MicKael C. Van Milligen Dubuque kratil All- Amedca 1 1 1 1 1 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Conservation Easement Agreement for Preservation of the Dubuque Shot Tower DATE: August 9, 2010 The City of Dubuque received a $295,000 Save America's Treasures (SAT) grant from the National Park Service for the Dubuque Shot Tower Project. The Shot Tower Rehabilitation Project is complete and the SAT grant requires a conservation easement agreement as part of the final reporting requirements of the grant. Planning Services Manager Laura Carstens recommends City Council approval of a Conservation Easement Agreement for preservation of the Dubuque Shot Tower I concur with the recommendation and respectfully request Mayor and City Council approval. THE CITY OF DUB ►7,.-5 DATE: August 6, 2010 MEMORANDUM TO: Michael Van Milligen, City Manager FROM: Laura Carstens, Planning Services Manager ' ,('- / RE: Conservation Easement Agreement for Preservation of the Dubuque Shot Tower Introduction This memorandum requests the City Council approve the enclosed Conservation Easement Agreement for Preservation of the Dubuque Shot Tower. Background The City of Dubuque has received a $295,000 Save America's Treasures (SAT) grant from the National Park Service (NPS) for the Dubuque Shot Tower Project. The purpose of the SAT grant program is to preserve highly significant historic properties for future generations. Federal law requires that the City agree to assume, after completion of the project, the total cost of continued maintenance, repair and administration of the Shot Tower in a manner acceptable to the NPS. The SAT grant agreement requires that the City grant a conservation easement to the State Historical Society of Iowa (SHSI) or to a non - profit preservation organization acceptable to the NPS. The term of the easement must run at least 50 years from the end date of the grant agreement (August 31, 2010). The enclosed conservation easement agreement is being granted to the State Historical Society of Iowa. The City of Dubuque will continue ownership of the Shot Tower, but will be conveying rights to the SHSI which assure the Shot Tower's continued maintenance in a manner acceptable to the NPS for a period of 50 years. Discussion The Shot Tower Rehabilitation project is complete and the SAT grant will be concluded by the August 31, 2010 deadline. The conservation easement agreement is part of the final reporting requirements of the grant. The SHSI, NPS and Assistant Attorney General have reviewed and approved the language in the enclosed conservation easement agreement. Requested Action The requested action is to approve the Conservation Easement Agreement for Preservation of the Dubuque Shot Tower. Enclosure cc Tim O'Brien, Assistant City Attorney Preparer: David L. Dorff, Assistant Attorney General, PH: 515 - 281 -5263; FAX 515 - 242 -6072 IOWA DEPARTMENT OF JUSTICE, Lucas Building, Room 018, Des Moines, IA 50319 Return to: City of Dubuque, 50 West 13 Street, Dubuque, IA 52001 -4133, Attention: City Manager CONSERVATION EASEMENT AGREEMENT FOR PRESERVATION OF THE DUBUQUE SHOT TOWER INTRODUCTION. This conservation easement agreement is made between The City of Dubuque, Iowa, an Iowa municipality [ "City"], as GRANTOR of a conservation easement, and the State Historical Society of Iowa ( "SHSI "), a division of the Iowa Department of Cultural Affairs, as GRANTEE of the conservation easement. This conservation easement agreement is entered under Iowa Code chapter 457A for the purpose of preserving the Dubuque Shot Tower, a building that is important culturally, historically, and architecturally. 1. The Subject Property. This agreement creates a conservation easement in real estate legally described as: Commencing at a point of reference at the northeasterly corner of Lot C of Riverwalk 5 Addition, in the City of Dubuque, Dubuque County Iowa; Thence N 55° 14' 01" W 73.88 feet along the northerly line of said Lot C to a point of intersection with the northwesterly right of way line of E. 4 Street, (this is an assumed bearing for this description only); Thence N 57 ° 47' 10 -" E 185.78' to a point also being 59.46 feet in perpendicular distance form the centerline of the existing Canadian National Railway at a point 163.4 feet westerly of the west abutment of Tower Drive, said point being the point of beginning; Thence N 54° 50' 45" W 28.21 feet; Thence N 34° 19' 55" E 31.66 feet; Thence S 54 ° 38' 55" E 31.52 feet; to a point of curvature; Thence 46.17 feet along a 15.96 feet radius curve concave westerly (chord S40° 19' 40" W 31.67 feet) to the point of beginning, containing 1280 square feet, more or Tess, and subject to easements of record, and not of record. The above - described Subject Property is the site of the Dubuque Shot Tower, located at the eastern terminus of Commercial Street in Dubuque, Iowa. 2. Grant of conservation easement. In consideration of the sum of $295,000.00 received in grant -in -aid financial assistance from the National Park Service of the United States Department of the Interior, City hereby grants to the SHSI a conservation easement in the Subject Property for the purpose of assuring preservation of the Dubuque Shot Tower [hereinafter: "the Building "]. 3. Easement required for federal grant. This conservation easement is granted as a condition of the eligibility of City for the financial assistance from the National Park Service of the United States Department of the Interior appropriated from the Historic Preservation Fund for the Save America's Treasures Grant Program by Public Law 106- 113. 4. Conditions of easement: a. Duration. This conservation easement is granted for a period of fifty (50) years commencing on the date when it is filed with the Dubuque County Recorder. b. Documentation of condition of the Building at time of grant of this easement. In order to make more certain the full extent of City's obligations and the restrictions on the Subject Property, and in order to document the nature and condition of the Building, including significant interior elements in spatial context, a list of character - defining materials, features and spaces is incorporated as Exhibit "A" at the end of this agreement. City has provided to the SHSI architectural drawings including floor plans, elevations and a site plan. To complement Exhibit "A ", SHSI personnel have compiled a photographic record, including photographer's affidavit, black and white photographs and negatives, color digital prints, photograph logs, and a keyed location map. City agrees that the nature and condition of the Building on the date of execution of this easement is accurately documented by the architectural drawings and photographic record, which shall be maintained for the life of this easement in the SHSI's conservation easement file for the Building. c. Restrictions on activities that would affect historically significant components of the Building. City agrees that no construction, alteration, or remodeling or any other activity shall be undertaken or permitted to be undertaken on the Subject Property which would affect historically significant interior spaces and features identified in Exhibit "A ", exterior construction materials, architectural details, form, fenestration, height of the Building, or adversely affect its structural soundness without prior written permission of the SHSI affirming that such reconstruction, repair, repainting, refinishing, rehabilitation, preservation, or restoration will meet The Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (hereinafter referred to as the "Standards "). d. Restrictions on activities that would affect archeological resources. The Grantor agrees that no ground disturbing activity shall be undertaken or permitted to be undertaken on the Subject Property which would affect historically significant archeological resources identified in Exhibit "A" without prior written permission of the SHSI affirming that such work will meet The Secretary of the Interior's "Standards for Archeology and Historic Preservation ". 2 e. Maintenance of recovered materials. The Grantor agrees to ensure that any data and material recovered during archeological investigations will be placed in a repository that will care for the data in the manner prescribed in the "Standards for Archeology and Historic Preservation" or will comply with the requirements of the Native American Graves Protection and Repatriation Act, and with 36 CFR 79 and 43 CFR 10. f. Duty to maintain the Building. City agrees at all times to maintain the Building in a good and sound state of repair and to maintain the Subject Property, including the Building, according to the Standards so as to prevent deterioration and preserve the architectural and historical integrity of the Building in ways that protect and enhance those qualities that make the Building eligible for listing in the National Register of Historic Places. g. Public access. City agrees to provide public access to view the grant- assisted work or features no less than twelve (12) days a year on an equitably spaced basis. The dates and times when the property will be open to the public must be annually published and provided to the SHSI. At the option of City, the relevant portions of the Building may also be open at other times by appointment, in addition to the scheduled twelve (12) days a year. Nothing in this agreement will prohibit a reasonably nondiscriminatory admission fee, comparable to fees charged at similar facilities in the area. h. Right to inspect. City agrees that the SHSI, its, employees, agents and designees shall have the right to inspect the Building at all reasonable times, with twenty -four hours written notice, in order to ascertain whether the conditions of this easement agreement are being observed. i. Anti - discrimination. City agrees to comply with Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000 (d), the Americans with Disabilities Act (42 U.S.C. 12204), and with Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). These laws prohibit discrimination on the basis of race, religion, national origin, or disability. In implementing public access, reasonable accommodation to qualified disabled persons shall be made in consultation with the SHSI. j. Transfer of easement by the SHSI. The SHSI may, in its discretion, transfer all or part of its rights and responsibilities contained in this easement to a third party that is authorized by Iowa Code chapter 457A to hold conservation easements. Before any such transfer, the SHSI shall obtain from the National Park Service written authorization that the proposed transfer would not violate a condition of the grant agreement with the City. Reasonable advance written notice of any such transfer shall be provided to the City and shall include the reasons for the proposed transfer. k. Easement shall run with the land; conditions on conveyance. This conservation easement shall run with the land and be binding on City, its successors and assigns. City agrees to insert an appropriate reference to this easement agreement in any deed or other legal instrument by which it divests itself of either the fee simple title or other 3 lesser estate in the Building, the Subject Property, or any part thereof. Reasonable advance written notice of any such divestiture shall be provided to the SHSI and shall include the reasons for the proposed divestiture. 1. Casualty Damage or Destruction. In the event that the Building or any part of it shall be damaged or destroyed by fire, flood, windstorm, earth movement, or other casualty, City shall notify the SHSI in writing within fourteen (14) days of the damage or destruction, such notification including what, if any, emergency work has already been completed. No repairs or reconstruction of any type, other than temporary emergency work to prevent further damage to the Building and to protect public safety, shall be undertaken by City without the SHSI's prior written approval indicating that the proposed work will meet the Standards. The SHSI shall give its written approval, if any, of any proposed work within sixty (60) days of receiving the request from City. If, after reviewing a written report prepared by a qualified preservation architect who is acceptable to both parties, they agree that the restoration /reconstruction of the property is impractical or impossible or agree that the purpose of this easement would not be served by such restoration /reconstruction, City may, with the prior written approval of the SHSI, alter, demolish, remove, or raze one or more elements of the Building, or the Building itself, and /or construct new improvements on the Subject Property. The SHSI shall give its written approval, if any, within sixty (60) days of receiving City's request for approval. The parties may also agree to extinguish this easement in whole or in part in accordance with the laws of the State of Iowa. m. Enforcement. The SHSI shall have the right to prevent and correct violations of the terms of this easement. If the SHSI, upon inspection of the property, finds what appears to be a violation, it may exercise its discretion to seek injunctive relief in a court having jurisdiction. Except when an ongoing or imminent violation will irreversibly diminish or impair the cultural, historical and architectural importance of the Building, the SHSI shall give City written notice of the violation and allow thirty (30) days to correct the violation before taking any formal action, including, but not limited to, legal action. If a court, having jurisdiction, determines that a violation exists or has occurred, the SHSI may obtain an injunction to stop the violation, temporarily or permanently. A court may also issue a mandatory injunction requiring City to restore the Building to a condition that would be consistent with preservation purposes of the grant from the National Park Service. In any case where a court finds that a violation has occurred, the court may require City to reimburse the SHSI and the Iowa Attorney General for all the State's expenses incurred in stopping, preventing and correcting the violation, including but not limited to reasonable attorney's fees. The failure of the SHSI to discover a violation or to take immediate action to correct a violation shall not bar it from doing so at a later time. n. Amendments. The parties may by mutual written agreement jointly amend this easement, provided the amendment shall be consistent with the preservation purposes of this easement and shall not reduce its term of duration. Any such amendment shall not be effective unless it is executed in the same manner as this easement, refers expressly to this easement, and is filed with the Dubuque County Recorder. 4 o. Effective date; severability. This conservation easement shall become effective when City files it in the Office of the Recorder of Dubuque County, Iowa, with a copy of the recorded instrument provided to the SHSI for its conservation easement file. If any part of this conservation easement agreement is held to be illegal by a court, the validity of the remaining parts shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the conservation agreement does not contain the particular part held to be invalid. p. 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 Grantor: City of Dubuque 50 West 13 Street Dubuque, IA 52001 -4133 Attention: City Manager Phone: 563.589.4110 To Grantee: State Historical Society of Iowa Iowa Department of Cultural Affairs 600 East Locust Street Des Moines, IA 50319 -0290 Attn: Deputy State Historic Preservation Officer Phone 515.281.4013 Or to such other address as either party from time to time shall designate by written notice to the other. q. Recordation. City shall record this instrument in timely fashion in the official records of Dubuque County, Iowa, and may re- record it at any time as may be required to preserve its rights in this Easement. IN WITNESS WHEREOF, City and SHSI have executed this Conservation Easement Agreement on the day and year below written. 5 GRANTOR: he City of Dubuque, an Iowa municipality By: Attest: Roy . Buol, Ma or eanne F. Schneider, City Clerk STATE OF IOWA; DUBUQUE COUNTY, SS: On this /7' day of / . 2010, before me the undersigned, a Notary Public for said State, person.:11 appeared Roy D. Buol and Jeanne F. Schneider, to me personally known, who stated that they are, respectively, the Mayor and City Clerk of the City of Dubuque, Iowa, that the foregoing instrument was signed on behalf of said City by authority of its City Council pursuant to the resolution adopted by majority vote of at its meeting on the 16 day of August, 2010, and they acknowledged execution of the foregoing consent to conservation easement agreement as their voluntary act_an+ he voluntary act of the City of Dubuque, Iowa. 6 � p �1nl to SUSAN M. WINTER 2 r , COMMISSION NO.1832' t ' ,, • MY COMMISSION EXPIRES 1 pV /^ ARY PUBLIC OR THE STATE OF IOWA 2/14/11 GRANTEE: Iowa Department of Cultural Affairs, SHSI By: Barbara A. Mitchell, Deputy State Historic Preservation Officer STATE OF IOWA, POLK COUNTY, ss: On the day of , 2010, before me, a Notary Public for said State, personally appeared Barbara A. Mitchell, who stated that she is the duly appointed and actively serving Deputy State Historic Preservation Officer in the SHSI of the Iowa Department of Cultural Affairs and that she executed the foregoing conservation easement agreement as her voluntary act and as the voluntary act of the Iowa Department of Cultural Affairs. NOTARY PUBLIC FOR THE STATE OF IOWA 7 Emma A Dubuque Shot Tower, Iowa Save America's Treasures Site Visit for Preservation Easement October 11, 2005 Ralph Christian, Barbara Mitchell, Jack Porter, Doug Jones To remain eligible for listing on the National Register of Historic Places, a property must be able to convey its significance. The following character - defining materials, spaces, and features have been identified as those that help convey the significance of the Dubuque Shot Tower. Significant Exterior Spaces and Features • Overall form, scale, and height of the structure, including the solid, battered wall, which has a vertical interior face and measures approximately three feet thick at ground level, twenty inches thick at top at top of stone, and seven inches thick at top of brick. At the time of recordation, the structure is nine stories tall, with the lowest level partially below ground level and the uppermost level reconstructed above the sill of the top -most window opening. • Original or restored construction materials and architectural details, including limestone on lower six exposed levels and brick on the upper three. The limestone is placed in a coursed rubble pattern between stone quoins, and the brick is laid in alternating stretcher and rowlock courses (some double stretcher courses between rowlock courses). The upper story of brick is not original, but was laid to restore that portion of the wall lost in the 1911 fire (this was reconstructed in 1960, according to the National Register nomination). The concrete collar at the base of the structure, the surrounding stone retaining wall and fence, and the tie rods do not date to the period of significance, but possibly to the 1960 work on the structure. • Fenestration pattern, including shape, size, spacing, and detail of window openings. The four windows on each level feature stone voussoir arches on the lower three levels and straight stone lintels for the openings above. According to the National Register nomination, the louver infill and concrete sills are not original. • Future archeological investigations are planned to expose more of the original base and foundation of the structure. These investigations, which will likely document additional character - defining features and will be on file at the State Historic Preservation Office, should be reviewed for additional information regarding character - defining archeological features. Significant Interior Spaces and Features • Overall volume and scale of interior open space. The interior faces of the limestone walls are fairly vertical, with no clear indication of where floors were originally located. Of most significance is the clear opening from floor to top at the center of the structure (originally used to drop the lead shot). The cementitious parge coat over the limestone is neither original nor character - defining. • Future archeological investigations are planned to expose more of the interior of the structure (at the time of recordation it is filled with guano). These investigations, which will likely document additional character - defining features and will be on file at the State Historic Preservation Office, should be reviewed for additional information regarding character - defining archeological features. •. CERTIFICATION OF PUBLICATION © r-ibA czt O r--� N cZt U ) o c)t�� (L) • r-, O '4-e � � �N ca,,� � O •� �� CD 1-8 "6 r2i U o 2 •� o CH ) al ct '171 0 8 to 4., r:) g °ono r"�i1 •r' N ) �� c a—+ ® v •. 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