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Grand Opera House Cons. Easemen D~ ~ck~ MEMORANDUM August 10, 2004 TO: FROM: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager SUBJECT: Grand Opera House Conservation Easement The Grand Opera House is requesting that the City of Dubuque, as a mortgage holder, consent to them receiving a Save America's Treasures Grant by consenting to a 50-year conservation easement for preservation of the Grand Opera House. I have consulted with Corporation Counsel Barry Lindahl and respectfully recommend Mayor and City Council approval of the request. /1111 t 1 ~:'ì /Îl l ( Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Preparer: Barry A. Lindahl Address: Suite 330 300 Main Street DubuQue. IA 52001 Telephone: 15631583-4113 RESOLUTION NO. 325-04 CONSENTING TO A CONSERVATION EASEMENT AGREEMENT BETWEEN THE GRAND OPERA HOUSE, AN IOWA NONPROFIT CORPORATION, AS GRANTOR, AND THE HISTORICAL DIVISION OF THE IOWA DEPARTMENT OF CULTURAL AFFAIRS, AS GRANTEE, FOR THE PRESERVATION OF THE GRAND OPERA HOUSE Whereas, The Grand Opera House, an Iowa nonprofit corporation (Opera House) is the owner of the Grand Opera House located at 135 West 8th Street in Dubuque, Iowa, on property legally described as The West 70 feet of Lots 171 and 172 in the City of Dubuque, Iowa, according the United States Commissioners Map thereof; and Whereas, in consideration of the sum of $248,000 received in financial assistance from the National Park Service of the United States Department of the Interior, Opera House intends to grant to the Historical Division of the Iowa Department of Cultural Affairs (Historical Division) a conservation easement pursuant to the Conservation Easement Agreement attached hereto for the purpose of assuring preservation of the Grand Opera House; and Whereas, the conservation easement is a condition of the eligibility of Opera House for the financial assistance from the National Park Service of the United States Department of the Interior appropriated from the Historic Preservation Fund for the Save America's Treasures Grant Program; and Whereas, the City of Dubuque (City) is the holder of a mortgage on the Opera House, filed January 24, 1997, recorded as Instrument No. 779-1997 in the records of Dubuque County, Iowa; and Whereas, Opera House has requested City's consent to the Easement Agreement; and Whereas, the City Council finds that it is in the best interests of City to consent to the Easement Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City of Dubuque hereby consents to the Conservation Easement Agreement attached hereto; and Section 2. The Mayor and City Clerk are hereby authorized and directed to execute the Consent to the Easement Agreement on behalf of the City of Dubuque. Passed, approved and adopted this 16th day of August ,2004. Daniel E. Nicholson, Mayor Pro-Tem Attest: Jeanne F. Schneider, City Clerk c£2J F : IU S E RS I tstec k I elL i nd a h IIRes 01 uti ons IG ra ndOpera H 0 us eConse rvat; 0 n Easement - h 1 O. doc Law Offices Of FUERSTE, CAREW, COYLE, JUERGENS & SUDMEIER, P.C. 200 SECURITY BUILDING 151 WEST 8TH STREET DUBUQUE, IOWA 5200 1-6832 TELEPHONE. (563) 556-4011 WILLIAMC. FUERSTE ALLAN J. CAREW MICHAEL J. COYLE STEPHEN J. JUERGENS ROBERT L. SUDMEIER' DOUGLAS M. HENRY MARKJ. WILLGING MICHAEL J. SHUBATT" A. THEODORE HUINKER NORMAN J. WANGBERG DANIT A L. GRANT July 30, 2004 TELECOPIER: (563) 556-7134 E-MAIL. MAJL¡Q)FCCJS.COM ALL AnO'NEYS LICENSEO IN IOWA 'ALSO LICENSED IN WISCONSIN "ALSO LICENSED IN ILLINOIS WRITER'S DIRECT E-MAIL ADDRESS SJUERGENS@FCCJS.COM Mr. Barry A. Lindahl 300 Main Street Harbor View Place, Suite 330 Dubuque, IA 52001 Re: Grand Opera House Conservation Easement Dear Barry: The Grand Opera House obtained a grant from the Save America's Treasures Grant Program administered by the National Park Service of the United States Department of the Interior. As a condition of the grant, the Grand Opera House must give the Historical Division of the Iowa Department of Cultural Affairs a 50-year conservation easement for preservation of the Grand Opera House. The City of Dubuque apparently holds a mortgage on the Grand. We enclose four (4) copies of the Conservation Easement, which contain a Consent portion for execution by the City of Dubuque. Could you please have each copy executed and returned to me as soon as possible. If you have any questions, please contact me. Very truly yours, SJJ:kad Enclosures FUERSTE, CAREW, COYLE, ::RGEp PC STEPHEN J. JUERGENS . , " Michael H. Smith Assistant Attorney General Iowa Department of Justice Lucas Building, Room 018 Des Moines, IA 50319 (515) 281-5263 Phone (515) 242-6072 Fax SPACE ABOVE THIS LINE FOR RECORDER CONSERVATION EASEMENT AGREEMENT FOR PRESERVATION OF THE GRAND OPERA HOUSE INTRODUCTION. This Conservation Easement Agreement is made between The Grand Opera House, an Iowa nonprofit corporation (" Opera House '~, as GRANTOR of a conservation easement, and the Historical Division of the Iowa Department of Cultural Affairs ("Historical Division"), as GRANTEE of the conservation easement. This Conservation Easement Agreement is entered under Iowa Code Chapter 457 A for the purpose of preserving the Grand Opera House, a building that is important culturally, historically, and architecturally. 1. The Subiect Property. This Agreement creates a conservation easement in real estate legally described as: The West 70 feet of Lots 171 and 172 in the City of Dubuque, Iowa, according to the United States Commissioners Map thereof. The Subject Property is the site of the Grand Opera House, located at 135 West 8th Street in Dubuque, Iowa. 2. Grant of Conservation Easement. In consideration of the sum of $248,000.00 received in financial assistance from the National Park Service of the United States Department of the Interior, Opera House hereby grants to the Historical Division a conservation easement in the Subject Property for the purpose of assuring preservation ofthe Grand Opera House (hereinafter the "Building"). 3. Easement ReQuired for Federal Grant. This conservation easement is granted as a condition of the eligibility of Opera House (or the Grand Opera House Foundation) for the financial assistance trom the National Park Service ofthe 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 BuUdin!!: at Time of Grant of This Easement. In order to make more certain the full extent of Opera House'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. Opera House has provided to the Historical Division architectural drawings including floor plans, elevations and a site plan. To complement Exhibit "A", Historical Division personnel have compiled a photographic record, including photographer's affidavit, black and white photographs and negatives, color digital prints, photograph logs, and a keyed location map. Opera House agrees that the nature and condition ofthe 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 Historical Division's conservation easement file for the Building. c. Restrictions on Activities that Would Affect Historicallv Sil!nificant Components of the Buildinl!. Opera House 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 Historical Division affirming that such reconstruction, repair, repainting, refinishing, rehabilitation, preservation, or restoration will meet The Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (hereinafter referred to as the "Standards"). d. Duty to Maintain the Buildinl!. Opera House agrees at all times to maintain 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. e. Public Access. Opera House 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. At the option of Opera House, 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. f. Rieht to Inspect. Opera House agrees that the Historical Division, its, employees, agents and designees shall have the right to inspect the Building at all reasonable times, with twenty-four (24) hours written notice, in order to ascertain whether the conditions ofthis Easement Agreement are being observed. g. Anti-Discrimination. Opera House agrees to comply with Title VI of the Civil Rights Act of 1964 (42 V.S.C. 2000 (d), the Americans with Disabilities Act (42 V.S.C. 12204), and with Section 504 of the Rehabilitation Act of 1973 (29 V.S.C. 794). These laws prohibit discrimination on the basis of race, religion, national origin, or disability. In implementing public access, reasonable accommodation to qualified disabled persons shall be made in consultation with the Historical Division. h. Transfer of Easement bv the Historical Division. The Historical Division may, at its discretion, and without prior notice to Opera House, transfer all or part of its rights and responsibilities contained in this easement to a third party that is authorized by Iowa Code Chapter 457 A to hold conservation easements. i. Easement Shall Run with the Land: Conditions on Convevance. This conservation easement shall run with the land and be binding on Opera House, its successors and assigns. Opera House agrees to insert an appropriate reference to this Easement Agreement in any deed or other legal instrument by which it divests itself of either the fee simple title or other lesser estate in the Building, the Subject Property, or any part thereof. j. Casualty Damaee 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, Opera House shall notify the Historical Division in writing within fourteen (14) days of the damage or destruction, such notification including what, if any, emergency work 2 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 Opera House without the Historical Division's prior written approval indicating that the proposed work will meet the Standards. The Historical Division shall give its written approval, if any, of any proposed work within sixty (60) days of receiving the request from Opera House. If, after reviewing a written report prepared by a qualified preservation architect who are 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, Opera House may, with the prior written approval of the Historical Division, 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 Historical Division shall give its written approval, if any, within sixty (60) days of receiving Opera House'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 ofIowa. k. Enforcement. The Historical Division shall have the right to prevent and correct violations of the tenus of this easement. If the Historical Division, upon inspection of the property, finds what appears to be a violation, it may exercise its discretion to seek injunctive relief in a court having jurisdiction. Except when an ongoing or imminent violation will irreversibly diminish or impair the cultural, historical and architectural importance of the Building, the Historical Division shall give Opera House written notice of the violation and allow thirty (30) days to correct the violation before taking any fonnal action, including, but not limited to, legal action. If a court, having jurisdiction, detennines that a violation exists or has occurred, the Historical Division may obtain an injunction to stop the violation, temporarily or pennanently. A court may also issue a mandatory injunction requiring Opera House 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 Opera House to reimburse the Historical Division and the Iowa Attorney General for all the State's expenses incurred in stopping, preventing and correcting the violation, including but not limited to reasonable attorney's fees. The failure of the Historical Division to discover a violation or to take immediate action to correct a violation shall not bar it from doing so at a later time. I. Amendments. The parties may by mutual written agreementjointiy amend this easement, provided the amendment shall be consistent with preservation purpose of this easement and shall not reduce its tenn of duration. Any such amendment shall not be effective unless it is executed in the same manner as this easement, refers expressly to this easement, and is filed with the Dubuque County Recorder. m. Effective Date: Severability. This conservation easement shall become effective when Opera House files it in the Office of the Recorder of Dubuque County, Iowa, with a copy of the recorded instrument provided to the Historical Division for its conservation easement file. If any part of this Conservation Easement Agreement is held to be illegal by a court, the validity of the remaining parts shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Conservation Agreement does not contain the particular part held to be invalid. 3 GRANTOR: The Grand Opera House, an Iowa Non-Profit Corporation GRANTEE: Iowa Department of Cultural Affairs, Historical Division By: Patrick M. Smith, President STATE OF IOWA, DUBUQUE COUNTY, ss: On this ~ day of ,2004, before me the undersigned, a Notary Public for said State, personally appeared Patrick M. Smith, to me personally known, who stated that he is President of The Grand Opera House, that no seal has been procured by said corporation, and that the foregoing instrument was signed on behalf of said corporation by authority of its Board of Directors, and that as such officer, he acknowledged that he executed the foregoing instrument as his voluntary act and the voluntary act of the corporation. NOTARY PUBLIC FOR THE STATE OF IOWA STATE OF IOWA, POLK COUNTY, ss: On the ~ day of M~ ' 2004, before me, a Notary Public for said State, personally appeared Low I J. ike, who stated that he is the duly appointed and actively serving Deputy State Historic Preservation Officer in the Historical Division of the Iowa Department of Cultural Affairs and that he executed the foregoing conservation easement agreement as his voluntary act and as the voluntary act of the Iowa Department of Cultural Affairs. NOT AR~E STATE OF IOWA ~-8- 6/, 4 CONSENT BY THE GRAND OPERA HOUSE FOUNDATION The Grand Opera House Foundation hereby consents to this Easement Agreement pursuant to the Real Estate Agreement between The Grand Opera House and The Grand Opera House Foundation filed May 6, 1998 and recorded as Instrument No. 7040-1998 in the records of Dubuque County, Iowa. The Grand Opera House Foundation By: ~ ~,~ John. But er, Pres! nt STATEOFIOWA,DUBUQUECOUNTY,ss:Onthis 14fl....dayof J~ ' 2004, before me the undersigned, a Notary Public for said State, personally ap eared John E. Butler, to me personally known, who stated that he is President of The Grand Opera House Foundation, that no seal has been procured by said corporation, and that the foregoing instrument was signed on behalf of said corporation by authority of its Board of Directors, and that as such officer, he acknowledged that he executed the foregoing instrument as his voluntary act and the voluntary act of the corporation. EiJ'^' Dœp."iL~'M;ãulsToN (if Ic.'o;nml"ion Number 2236~ 'ow> _1ÌA.r,:~~;~1 CONSENT BY CITY OF DUBUQUE The City of Dubuque, Iowa, as holder ofthe mortgage filed January 24, 1997 and recorded as Instrument No. 779-1997 in the records of Dubuque County, Iowa, hereby consents to this easement agreement. City of Dubuque, Iowa By: Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, City Clerk STATE OF IOWA; DUBUQUE COUNTY, ss: On this - day of 2004, before me the undersigned, a Notary Public for said State, personally appeared Terrance M. Duggan 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 instrurnent 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 - day of , 2004, and they acknowledged execution of the foregoing consent to Conservation Easement Agreement as their voluntary act and the voluntary act of the City of Dubuque, Iowa. NOTARY PUBLIC FOR THE STATE OF IOWA 5 EXHIBIT "A" TO CONSERVATION EASEMENT AGREEMENT Grand Opera House, Dubuque, Iowa Save America's Treasures Site Visit for Preservation Easement December 19,2003 Ralph Christian, Barbara Mitchell, Jack Porter 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 Grand Opera House. Significant Interior Spaces and Features Lobbies Overall volume and scale of outer lobby and inner foyer Original or replacement wall, floor, and ceiling finishes Any original or replacement decorative plasterwork in lobby and foyer Any original or replacement wood trim throughout Placement, configuration, and material quality of original stairs, including treads, risers, handrails, balusters, and carved newel posts * Original electronics board is an interesting piece of moveable equipment that should be retained if at all possible. Auxiliary Spaces on 2nd, 3rd, and 4th Floors Overall volume and scale of 4th floor rehearsal space and attic level storage area Original or replacement wall, floor, and ceiling finishes, including unfinished walls in auxiliary stairs Original or replacement wood trim throughout, including the 2nd floor office space, window/door casings, and chair rails and paneling in 4th floor rehearsal space Original doors and windows, along with associated casement and hardware whether currently installed or otherwise stored, including the original fire doors for the 3rd floor projection booth, the metal security gate between 3rd and 4th floors, the transom window between 3rd floor costume shop and stair, and the decorative door hardware in 2nd floor office (east door) and on 4th floor Original wide plank wood floor in 4th floor rehearsal space Original radiators and cold air vents on 3rd floor Placement, configuration, and material quality of original stairs (both public and auxiliary), including wood treads, risers, wainscot, handrails, balusters, and newel posts (both the carved ones and the simple ones with finials) * Brenkert arc lamp in projection booth is an interesting piece of moveable equipment that should be retained if at all possible. Theater Auditorium and Stage House Overall volume and scale of auditorium and stage house, including the size of the stage Original hardwood floor Woodwork in orchestra pit Original or replacement ornamental plasterwork, including Plaster of Paris screens on either side of stage and plasterwork throughout (door surrounds, columns, balcony details, etc.) Form and material quality of original cast iron columns, including the supports for the second balcony, which has been removed Location and material quality of original doors and openings, along with associated casement and hardware whether currently installed or otherwise stored and the door surrounds on door openings leading into the basement/stage house from the auditorium Ornamental detailing on balcony rail Historic asbestos backdrop/fire curtain (note: repainted - it originally depicted comedy/tragedy masks) Significant Exterior Spaces and Features Original or replacement construction materials and architectural details, including carved limestone Smooth material quality and color of brick, mortar, and limestone Overall form, scale, and height of the building, including gabled dormer and twin side towers Fenestration pattern, including windows and arched entrances denoting the Romanesque style and the backdrop/stage set doors on the north and west facades Spatial relationship to adjacent buildings and public spaces, including the sidewalk and street