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INST.NO.
f STORY COUNTY,IOWA
�►k FILED FOR RECORD
JUL 3 1 1992 -M
USAN L.VA�NDE KAMP,Recorder
Recording Fee$
Auditors Fee$
CITY OF AMES, IOWA
AND
IOWA NATURAL HERITAGE FOUNDATION
CONSERVATION EASEMENT
THIS GRANT OF CONSERVATION EASEMENT ("Easement") is made this
27th day of July, 1992, by THE CITY OF AMES, IOWA, (hereinafter
referred to as "Grantor") , to the IOWA NATURAL HERITAGE
FOUNDATION, a nonprofit corporation of the State of Iowa with a
principal office in the Insurance Exchange Building, Suite 444 at
505 5th Avenue, Des Moines, Iowa 50309 (hereinafter referred to
as "Grantee") .
RECITALS:
WHEREAS, Grantor is the owner of certain real, property in the
city limits of Ames, Story. County, Iowa, more particularly
described as Lot in Sunset Rock Second Addition to the City of
Ames, and identified as Ann Munn Heritage Woods and incorporated
6 by this reference (the "Property") ; and
WHEREAS, Grantor has agreed to this grant of Conservation
tEasement as a condition of the Grantee acquiring said real estate
and conveying said real estate as a gift to Grantor; and
WHEREAS, the Property possesses significant natural, scenic, open
Q space, educational, and/or recreational value appropriate for
conservation and preservation under the standards of Section
-�- 111D. 1 of the Code of Iowa; and
WHEREAS, the specific conservation values of the Property are
S documented in an inventory of relevant features of the Property,
dated July 28, 1992, attached hereto as Exhibit A and
incorporated by this reference, which consists of reports, maps,
photographs and other documentation that the parties agree
provide, collectively, an accurate representation of the Property
p at the time of this grant intended to serve as an objective
s 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
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use patterns existing at the time of this grant, including,
without limitation, those relating to passive, 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, nonprofit, publicly supported,
tax-exempt organization, qualified under Section 501 (c) (3) and
170 (h) of the Internal Revenue 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 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 above recitals and the
mutual covenants, terms, conditions and restrictions contained
herein and pursuant to the provisions of Chapter 111D of the Code
of Iowa, Grantor hereby voluntarily grants and conveys to Grantee
a conservation easement in perpetuity over the Property of the
nature and character and to the extent hereinafter set forth.
1 . Purpose. It is the purpose of this easement to assure that
the Property will be preserved forever in its natural, scenic,
forested, and 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 purpose of this
Easement, the following rights are conveyed to Grantee:
(a) to preserve and protect the conservation values of the
Property:
(b) to enter upon the Property at reasonable times but not
less often than once each calendar year, in order 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 Grantee shall not unreasonably interfere
with Grantor' s use and enjoyment of the Property; and
(c) to prevent any activity on or use of the Property that
is inconsistent with the purposes of this Easement, and to
require the restoration of such areas or features of the Property
that may be damaged by any inconsistent activity or use, pursuant
to the provisions of paragraph 6 hereof.
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3
3 . Permitted Uses. Grantor reserves to themselves, and to
their personal representatives, successors, and/or assigns, all
rights accruing from their 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) Public access;
(b) Hiking;
(c) Birdwatching and wildlife observation;
(d) Mushroom, berry and nut harvesting;
(e) Maintenance, enhancement or upgrading of footpaths with
a natural soft material such as bark chips, sand, or crushed
limestone;
(f) Construction and maintenance of entry, boundary or
regulation signs with prior approval of grantee;
(g) Construction of no more than three seating benches made
of wood, placement to be approved by grantee;
(h) Environmental education activities .
In the event that Grantor desires to undertake certain activities
not specifically permitted by the foregoing subparagraphs (a-h) ,
and not specifically prohibited by the provisions of paragraph 4
below, Grantor shall notify Grantee in writing not less than
ninety (90) days prior to the date Grantor intends to undertake
such activity. 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.
4 . Prohibited Uses . Any activity on or use of the Property
inconsistent with the purposes of this Easement is prohibited.
Without limiting the generality of the foregoing, the following
activities and uses are expressly prohibited:
(a) Construction or erection of any building or structure
whether recreational, commercial, residential or industrial;
(b) Establishment of any commercial livestock feed lot;
(c) Dumping of ashes, trash, rubbish, garbage, offal, or
any other unsightly offal, or any other unsightly or offensive
materials;
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(d) Placing billboards, outdoor advertising structures, or
advertisements of any kind on the Property; except entrance,
boundary, and educational signs approved in advance as to size
and content by Grantee;
(e) Any exploitation or mineral resources, by either
subsurface or surface means;
(f) Agricultural practices, including grazing, cultivating,
tilling, ploughing, hay cutting and timber harvesting for
commercial purposes;
(g) Use of pesticides or herbicides, except for the
eradication of species detrimental to the natural beauty and
ecological integrity of the Property as approved in advance by
Grantee;
(h) Use of motorized vehicles of any type, except as may be
necessary for maintenance of the Property consistent with the
purpose of this Easement;
(i) Introduction of non-native plant species, except as may
be necessary, with the prior approval of Grantee, for erosion
control purposes;
(j) Construction of recreational equipment, shelters,
picnic tables or other structures designed to promote
recreational activities beyond the intent of this easement,
except as provided in subparagraph 3 (e) and (g) ;
(k) Hunting or trapping; provided, however, that animals
deemed to be detrimental to the personal safety of Grantor or to
the conservation values intended to be protected by this Easement
may be removed with the prior
approval of Grantee;
(1) Construction or enlargement of any road;
(m) Permanent alteration of the topography of the property
or its drainage systems, except for purposes of: 1) erosion
control, 2) exercise of rights granted under the easements for
drainage and utilities shown on the official plat of Lot 8,
Sunset Rock Second Addition to the City of Ames, 3) enhancement
of wetland values, 4) public safety considerations, or 5) for
purposes protective of the natural integrity of the property;
(n) Installation of new utility structures or lines outside
of existing utility easements .
5 . 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
am .30 PAGE 3_______
5
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, 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 therefore, Grantee, in its sole
discretion, may apply any damages recovered to the cost of
undertaking any corrective action on the property. Grantee' s
rights under this paragraph apply equally in the event of either
actual or threatened violations of the terms of this Easement.
5 . 1 No Waiver. 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.
5 .2 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.
5 .3 Arbitration. If a dispute arises between the parties
concerning the consistency of any proposed use or activity with
the purposes of this Easement, and Grantor agrees not to proceed
with the use or activity pending resolution of the dispute,
either party may refer the dispute to arbitration by request made
in writing upon the other. Within thirty (30) days of the
receipt of such request, the parties shall select a single
arbitrator to hear the matter. If the parties are unable to
agree on the selection of a single arbitrator, then each party
shall name one arbitrator and the two arbitrators thus selected
shall select a third arbitrator; provided, however, that if
either party fails to select an arbitrator, or if the two
BO?K.33O PAGE
6
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 stature than 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 fees and expenses of the arbitrators
shall be shared equally the parties hereto.
6. Access . The right of access by the general public to any
portion of the Property is conveyed by this Easement.
7 . 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 comprehensive general liability
insurance coverage.
8 . 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 judgements, including, without limitation,
reasonable attorneys fees, 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 occurring on or about
the Property, regardless of cause, unless due mostly to the
negligence of any of the Indemnified Parties; and (ii) the
obligations specified in paragraph 7 .
9. Extinguishment. If circumstances arise in the future such
as render the purposes of this Easement impossible to accomplish,
this Easement may only be terminated or extinguished, whether in
whole or in part, by judicial proceedings in a court of competent
jurisdiction, and the 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 Condemnation. If this Easement is taken, in whole or in
party, by exercise of the power of eminent domain, Grantee shall
be entitled to compensation in accordance with applicable law.
Any award of compensation to the Grantor, except for attorney
fees, shall be paid over to the Grantee.
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10 . Assignment. This Easement is transferable, but Grantee may
assign its rights and obligations at the time of transfer under
Section 170 (h) of the Internal Revenue Code of 1986, as amended
(or any successor provisions then applicable) , and the applicable
regulations promulgated thereunder, and authorized to acquire and
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hold conservation easements under Section 111D. 8 of the Code of
Iowa (or any successor provision then applicable) . As a
condition of such transfer, Grantee shall require that the
conservation purposes that this grant is intended to advance,
continue to be observed.
10. 1 Executory Limitation. If Grantee shall cease to exist or to
be a qualified organization under Section 170 (h) of the Internal
REvenue Code of 1986, as amended, or to be authorized to acquire
and hold conservation easements under Iowa law, and a prior
assignment is not made pursuant to paragraph 10, then Grantee' s
rights and obligations under this Easement shall become
immediately vested in The Nature Conservancy. If The Nature
Conservancy is no longer in existence at the time the rights and
obligations under this Easement would otherwise vest in it, or if
The Nature Conservancy is not qualified or authorized to hold
conservation easements as provided with respect to assignments
pursuant to paragraph 11, or if it shall refuse such rights and
obligations, then the rights and obligations of this Easement
shall vest in such organization as a court of competent
jurisdiction shall direct pursuant to applicable Iowa law and
with due regard to the requirements for an assignment pursuant to
paragraph 11 .
11 . Subsequent Transfers . Grantor agrees to incorporate the
terms of this Easement in any deed or other legal instrument by
which they divest themselves of any interest in all or a portion
of the Property, including, without limitation, a leasehold
interest. Grantor further agrees to give written notice to
Grantee of the transfer of any interest at least twenty (20) days
prior to the date of such transfer. The failure of Grantor to
perform any act required by this paragraph shall not impair the
validity of this Easement or limit its enforceability in any way.
12 . Estoppel Certificates . Upon request by Grantor, Grantee
shall, within twenty (20) days execute and deliver to Grantor any
document, including an estoppel certificate, which certifies
Grantor' s compliance with any obligation of Grantor contained in
this Easement and otherwise evidences the status of this Easement
as may be requested by Grantor.
13 . Notices . Any notice, demand, request, consent, approval or
communication that either party desires or is required to give to
the other shall be in writing and either served personally or
sent by first class mail, postage prepaid, addressed as follows :
To Grantors :
City of Ames
515 Clark
33 0 3S
8
Ames, Iowa 50010
Attention: City Manager
To Grantee:
Iowa Natural Heritage Foundation
444 Insurance Exchange Building
505 5th Avenue
Des Moines, Iowa 50309
Attention: Land Stewardship Program Director
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 Story 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 111D 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) Severability. If any provision of this Easement, or
the application thereof to any person or circumstance, is found
to be invalid, the remainder of the provision 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 17 .
(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 .
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(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 consideration 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. Existing Easements . The terms and conditions with the
existing utility easements are not extinguished by transfer of
title to the City of Ames and the Iowa Natural Heritage
Foundation' s retention of this conservation easement.
17 . Amendments . If circumstances arise under which an amendment
to or modification of this Easement would be inappropriate,
Grantor and Grantee are free jointly to amend this Easement;
provided that no amendment shall be allowed that would affect the
qualification of this Easement or the status quo Grantee under
any applicable laws, including Chapter 111D of the Code of Iowa
and Section 170 (h) of the Internal Revenue Code of 1986, as
amended, and any amendment shall be consistent with the purposes
of this Easement and shall not affect its perpetual duration.
Any such amendment shall be recorded in the official records of
Story County, Iowa.
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IN WITNESS WHEREOF,Grantor and Grantee have executed this Deed of
Conservation Easement on the day and year first above written.
GRANTOR:
CITY OF, ES,IOWA
kk
ti y R rs,Mayor
STATE(JF I A
STORY COP,NIT )
# n lhs i day of �i 194.2 before me the undersigned a Notary Public in
and fpr laid State,personally ppeared Larry R. Curtis to me personally known, who
bein by me duly sworn, did say that he is the Mayor of said city executing the within
and foregoing instrument, that the seal affixed thereto is the seal of said city; that said
instrument was signed and sealed on behalf of said city by authority of its City
and,ti�tatthe said Larry R. Curtis as such officer acknowledged the execution of said
iii's U;Aenfto be,the voluntary act and deed of said city by it and by him voluntarily
T.
executed
9
Notary Public in aAd for a State of Iowa
r,4
GRANTEE:
IOWA NATURAL HERITAGE FOUNDATION
BY: ,Zy
erald F. Sc epf date
Executive Director
State of Iowa,Polk County,ss:
On this 2 day of 19*� efore me,the
undersinged, a Notary Public in and for aid State, personally appeared Gerald F.
Schnepf to me personally known,who being by me duly sworn, did say that they are
the Executive Director 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 said Gerald F. Schnepf as such officer, acknowledged
the execution of tol',
nstrumen to be the voluntary act and deed of said corporation,
by it a by thentaril ecuted.
Notar ublic in and for th tate of Iowa
4l MY C ISA . RED PIRES APPRO E A F M
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