Grand Opera House Cons. Easemen
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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
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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