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America's River CorporationMEMORANDUM May 14, 2003 TO:The Honorable Mayor and City Council Members FROM:Michael C. Van Milligen, City Manager SUBJECT:America's River Corporation Assistant City Manager Cindy Steinhauser is recommending that the City of Dubuque participate in the newly-formed America's River Corporation. The purposes of the Corporation shall include but not be limited to education about the Mississippi River. The purposes shall also include promoting river front development and tourism in the Port of Dubuque and working in cooperation with governmental entities, businesses and organizations that share the same purposes. The Bylaws also recommend that four of the seven board seats are permanent and are occupied by the original America's River partners: Dubuque Area Chamber of Commerce, the National Mississippi Museum and Aquarium, Platinum Hospitality and the City of Dubuque. The remaining three seats would be at-large seats represented by Port of Dubuque property owners or other stakeholders such as Dubuque Racing Association (DP, A), Dubuque Main Street Ltd. (DMSL) and Diamond Jo Casino. The mission of the organization is consistent with several of the Fiscal Year 2004 priorities established by the City Council including: Top Pdodty - America's River project and development; High Priorities - Marketing riverfront and total community and Property acquisition at the riverfront; Other Pdodty - America's River marketing program. The mission is also consistent with several Management Priorities - Vacant property redevelopment and Riveffront master plan implementation. Based upon these goals, the City's participation in the America's River Corporation is consistent with the goals previously outlined by City Council. in reviewing the matter with Corporation Counsel Barry Lindahl, he sees no conflict of interest for the City to participate in the corporation. There have been some costs associated with the establishment of this corporation and the America's River partners have agreed, in concept to share these costs. To date the City's share of the cost is as follows: Board of Directors insurance $ 500 Trademark application $1,500 America's River insert $2,700 Additional costs, such as not for profit corporation status filing fees and vendor procurement fees are anticipated. Based upon this information, the second budget amendment for FY. 2003 includes a line item expense of $7,500 for America's River start-up costs. After the trademark is marketed, promotional events are held and additional participants are brought in to help with promotion it is antici pated that the corporation will become self-funding. I concur with the recommendation and respectfully request Mayor and City Council approval. MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager MEMORANDUM May14,2003 TO:Michael C. Van Milligen, City Manager FROM:Cindy Steinhauser, Assistant City Manager SUBJECT:America's River Corporation Introduction The purpose of this memorandum is to provide information on the newly established America's River Corporation and to request approval of the City's participation as a charter board member of the corporation and authorize funding for the City's portion of start-up corporation costs. Discussion In July 2002, the America's River partners agreed to the need to enter into a formal arrangement to jointly manage the ongoing promotion of the America's Project and to trademark the use of the America's River logo. This process began with a Memorandum of Agreement (MOA) between the Dubuque Area Chamber of Commerce, the National Mississippi Museum and Aquarium and the City of Dubuque to pursue registration ofthe America's River trademark. Also participating in this process was Platinum Hospitality, however, due to the not for profit and governmental nature of these three partners they were advised to not participate in ownership of the trademark. However, the MoA does spell out the use of the trademark by Platinum Hospitality, the fourth partner in the America's River partnership. The Chamber of Commerce has been managing the application process for the trademark on behalf of the partners. The partners also participated in a process that resulted in the selection of Sprenger McCullough and Get Smart Designs to manage the creative development and placement of the marketing efforts for the America's River project. These discussions also included the need to establish an on-going forum in which to address issues related to the America's River project and promotion of the Port of Dubuque. Since September 2002, representatives of the America's River partners have participated in several visioning and planning session to determine the appropriate structure to encourage this activity. Based upon these meetings, it was agreed that an America's River 501 c 3 Corporation should be established. On November 20, 2002 the America's River Corporation was incorporated at the State and on April 11, 2003 the bylaws for the corporation were approved. A copy of the bylaws is attached for your information. As indicated in the bylaws, the mission of the organization is to provide education about and promotion of the Mississippi River, the focus of the America's River project and the Port of Dubuque. These bylaws also recommend that four of the seven board seats are permanent and are occupied by the original America's River partners: Dubuque Area Chamber of Commerce, the National Mississippi Museum and Aquarium, Platinum Hospitality and the City of Dubuque. The remaining three seats would be at-large seats represented by Port of Dubuque property owners or other stakeholders such as Dubuque Racing Association (DRA), Dubuque Main Street Ltd. (DMSL) and Diamond Jo Casino. The mission of the organization is consistent with several of the Fiscal Year 2004 priorities established by the City Council including: Top Priority - America's River project and development; High Priorities - Marketing riverfront and total community and Property acquisition at the riverfront; Other Priority - America's River marketing program. The mission is also consistent with several Management Priorities - Vacant property redevelopment and Riverfront master plan implementation. Based upon these goals, the City's participation in the America's River Corporation is consistent with the goals previously outlined by City Council. In reviewing the matter with Corporation Counsel Barry Lindahl, he sees no conflict of interest for the City to participate in the corporation. As mentioned earlier in the memo, there have been some costs associated with the establishment of this corporation and the America's River partners have agreed, in concept to share these costs. To date the City's share of the cost is as follows: Board of Directors insurance $ 500 Trademark application $1,500 America's River insert $2,700* *This was a promotional piece developed pdor to the establishmen! of an America's River marketing campaign. Additional costs, such as not for profit corporation status filing fees and vendor procurement fees are anticipated. Based upon this information, the second budget amendment for FY 2003 includes a line item expense of $7,500 for America's River start-up costs. After the trademark is marketed, promotional events are held and additional participants are brought in to help with promotion it is anticipated that the corporation will become self-funding. Action The requested action is for City Council to approve the City's participation as a charter and permanent board member for the America's River Corporation, approve city manager serving as the City's representative and to authorize up $7,500 as the City's portion of startup costs for the Corporation. Attachment cc: Barry Lindahl, Corporation Counsel Pauline Joyce, Administrative Services Manager AMENDED AND RESTATED BYLAWS FOR AMERICA'S RIVER CORPORATION Adopted April 11, 2003 Article I. Offices Section 1. Principal Office. The principal office of the Corporation in the State of iowa shall be located at the office of the Dubuque Area Chamber of Commerce in the City of Dubuque, Iowa. The Corporation may have such other offices, either within or without the State of Iowa, as the Board of Directors may designate or as the business of the Corporation may require from time to time. Section 2. Registered Office. The registered office of the Corporation required by the Iowa Nonprofit Corporation Act to be maintained in the State of Iowa may, but need not, be identical with the principal office in the state of Iowa, and the address of the registered office may be changed from time to time by the Board of Directors. Article II. Members Section 1. Membership Qualification. The Permanent Members of the Corporation shall be the Dubuque Area Chamber of Commerce, the Dubuque County Historical Society and the City of Dubuque. General Members shall be individuals and entities doing business in the Port of Dubuque who meet membership criteria as established from time to time by the Board of Directors. For purposes of these Bylaws, Port of Dubuque shall mean that geographic area defined by the following boundaries: The Mississippi River on the east, the Locust Street connector on the south, Bluff Street on the west, and 5th Street on the north. Section 2. Composition of Board. 1. The business and affairs of the Corporation shall be managed by a Board of of seven (7) Directors who shall serve without compensation. The Directors shall be as follows: a. The Executive Director of the Dubuque Area Chamber of Commerce or the Executive Director's designee. b. The Executive Director of the Dubuque County Historical Society or the Executive Director's designee. c. The City Manager for the City of Dubuque or the City Manager's designee. d. The Chief Executive Officer of Platinum Hospitality or the Chief Executive Officer's designee e. Three at-large seats. 2. To the extent Platinum Hospitality ceases to exist or transfers to another entity all or substantially all of its interest in Port of Dubuque businesses, the Platinum Hospitality Director seat shall become an at- large seat. Section 3. Terms and Elections. 1. At-large Directors shall be appointed at the annual meeting of the Board and shall serve for a period of three (3) years. An at-large Director may not be appointed for more than two successive terms. The initial terms of the at-large Directors may be for such staggered terms as the Board may determine. 2. At [east ten (10) days prior to the annual meeting of the Board, the Executive Committee shall submit a slate of candidates for the vacant seats on the Board and for the Officers of the Corporation and no other candidates shall be submitted. Article Ill. Board of Directors Section 1. General Powers and Duties. The business and affairs of the Corporation shall be managed by the Board of Directors. The annual meeting of the Board shall be held on the fourth Thursday in September each year beginning in 2003 at the hour of 12:00 p.m. unless another date is fixed by the Board with in thirty (30) days before or after said date. Section 2. Confidentiality. All discussions, negotiations, deliberations, and other matters coming before or carried on by the Board of Directors or by any committee appointed by the Board of Directors shall be confidential and shall not be disclosed to any non-Board member. The failure of any Director to abide by this prowsion shall be grounds for the Director's removal. This section shall not be applicable to the extent that disclosure of any such matter is required by Chapter 21 of the Code of Iowa (Open Meetings Law) or by any other applicable law. regulation or court order. Section 3. Conflict of Interest. No Director shall have any direct financial interest in any contract or subcontract or the proceeds thereof in connection with any contracts awarded by the Board for work to be performed or services to be provided to the Corporation at any time during such Director's tenure on the Board without the prior written approval of the Board. Section 4. Tenure. Each at-large Director shall hold office for the balance of the Director's term and until a successor shall have been appointed, unless removed at a meeting called expressly for that purpose by a vote of a majority of all of the other Directors. Section 5. Removal. Any at-large Director may be removed by the Board whenever, in its judgment, the best interests of the Corporation will be served thereby. Such removal shall be by a majority of all of the other Directors. However, the Director shall have the right to appear before the Board to defend the Director's position. Section 6. Quorum. A majority of all of the Directors shall constitute a quorum for the transaction of business at any meeting of the Board. Section 7. Manner of Acting. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board. Section 8. Vacancies. If there are vacancies created on the Board between its annual meetings, whether by reason of death, resignation or removal of a Director or by reason of an increase in the number of directors, then the Executive Committee shall appoint a person to fill such vacancy for the remainder of the Director's term. Section 9. Presumption of Assent. A Director who is present at a meeting of the Board at which action on any Corporation matter is taken shall be presumed to have assented to the action taken unless the Director's dissent shall be entered in the minutes of the meeting or unless the Director shall file a written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered or certified mail to the Secretary- Treasurer of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favor of such action. Section 10. Conference Telephone Meetinqs. Subject to the applicable provisions of Article VIII, any action required by the Iowa Nonprofit Corporation Act at a regular or special meeting of the Board, or at a regular or special meeting of any committee of the Board, may be taken through conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. The participation in a meeting pursuant to this provision shall constitute presence in person at such meeting. Section 11. Requtar Meetings. The Board shall hold regular monthly meetings at such time and place as designated by the Board. The Board may provide the time and place, within the State of Iowa, for the holding of additional regular meetings without other notice except as required by law. Section 12. Special Meetinqs. Special meetings of the Board may be called by or at a request of the President or any four (4) Directors. The person or persons authorized to call special meetings of the Board may fix any place, within the State of Iowa, as the place for holding any special meeting of the Board called by them. Section 13. Notice of Special Meetin.qs. Notice of any special meeting shall be given at least five (5) days prior thereto by written notice delivered personally or mailed to each Director at the Director's address as designated to the Secretary- Treasurer of the Corporation. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, so addressed, with postage thereon prepaid. Any Director may waive notice of any meeting. The attendance of a Director at a meeting shall constitute a waiver of notice of such meeting except where a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. The business to be transacted at, or the purpose of, any special meeting of the Board shall be specified in the notice or waiver of notice of such meeting. The only business which may be transacted at a special meeting shall be that specified in the notice. Section 14. Committees. The Board from time to time by a majority vote of the members of the Board may appoint from its members or from the general public, a committee or committees, temporary or permanent, and, to the extent permitted by law and these Bylaws, may designate the duties, powers and authorities of such committee. Notwithstanding any provision in these Bylaws to the contrary, neither the Executive Committee nor any other committee shall have any policy-making or decision-making authority, all of which is reserved to the Board unless specifically delegated by the Board to the committee. Any action of the Executive Committee, other than the nomination of candidates for Directors or Officers or the amendment of the Bylaws, or any other committee is subject to the approval of the Board. Section 15. Executive Committee. 1. The Board shall have an Executive Committee consisting of the Directors representing the Dubuque Area Chamber of Commerce, the Dubuque County Historical Society, and the City of Dubuque. The designation of this committee and the delegation thereto of authority shall not operate to relieve the Board, or any member thereof, of any responsibilities. 2. The Executive Committee shall be responsible to see that the policies, procedures, and budget established by the Board are carried out. The Executive Committee shall be responsible to prepare the annual budget of the Corporation and to negotiate specific contracts or agreements, including, but not limited to, compensation of employees, and shall present same to the Board for action. The Executive Committee shall have such other responsibilities as shall be designated by the Board from time to time. 3. The Executive Committee may meet as necessary upon notice or as required by the Board and shall report to the Board at the next regular Board meeting. The Chairperson, or, in the Chairperson's absence, the Vice-Chairperson shall preside at all meetings of the Executive Committee. The meetings of the Executive Committee shall be called by the Chairperson or, upon the Chairperson's inability or refusal to act, by the Vice-Chairperson. 4. The Executive Committee shall keep regular minutes of its meetings which shall be distributed to the members of the E~oard at the next regular meeting of the Board. Section 16. Trademark Manaqement Committee. The Trademark Management Committee shall consist of one member each designated by the Director representing the Dubuque Area Chamber of Commerce the Dubuque County Historical Society and the City of Dubuque. The Trademark Management Committee shall manage the use and licensing of the America's River Trademark. Section 17. General Public Marketinq Committee. The General Public Marketing Committee shall consist of one member each designated by the Director representing the Dubuque Area Chamber of Commerce, the Dubuque County Historical Society, the Dubuque Racing Association and the City of Dubuque, and such other members as the Board may determine. The committee shall develop and implement a marketing plan to promote the Port of Dubuque, including creating and coordinating special events. Section 18. Business Development Committee. The Business Development Committee shall consist of one member each designated by the Director representing the Dubuque Area Chamber of Commerce, the Dubuque County Historical Society and the City of Dubuque, and such other members as the Board may determine. Section 19. Membership Development Committee. The Membership Development Committee shall consist of one member each designated by the Director representing the Dubuque Area Chamber of Commerce, the Dubuque County Historical Society and the City of Dubuque, and such other members as the Board may determine. The committee shall develop membership investment levels for business and individuals desiring to further the goals and purposes of the Corporation. The committee shall also develop membership investment levels for businesses desidng to be listed as preferential procurement vendors for products endorsed and produced by the Corporation. Article IV. Officers Section 1.Number of Officers. The Officers of the Corporation shall be President and Secretary-Treasurer. Section 2. Election, Term of Office and Qualifications. The Officers of the Corporation shall be elected annually by the Board during the annual meeting of the Board. Each Officer shall hold office for a term of one year, or until a successor shall have been duly chosen or until death or resignation. All Officers shall be Directors and all Officers may serve consecutive terms Section 3 Removal. An Officer may be removed, with or without cause, at any meeting of the Board, by the affirmative vote of three-fourths of the other members of the Board. Section 4. Vacancies. A vacancy n any office by reason of death, resignation, removal, disqualification or any other cause shall be filled by the Board. Section 5. Duties of Officers. 1. President. The President shall be the head of the Corporation and shall preside at all meetings of the Board. The President shall serve as spokesperson for the Corporation at all public functions and news conferences, or may designate the spokesperson for such events. With the approval of the Board, the President shall sign all deeds, contracts and other instruments affecting the operation of the Corporation or any real or personal property of the Corporation. 2. Secretary-Treasurer. The Secretary-Treasurer shall serve as Treasurer of the Corporation and review all financial information. The Treasurer shall be the technical custodian of all funds of the Corporation. The Secretary-Treasurer shall act as agent for service of process, and shall conduct the correspondence, preserve the records, documents, and communications, keep books of account, maintain an accurate record of the proceedings of the Corporation and Board of Directors meetings. Article V. Contracts, Loans, Checks, Deposits, and Audit Section 1. Contracts. The Board may authorize any Officer or Officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation and such authority may be general or confined to specific instances. Section 2. Loans. No loans shall be contracted on behalf of the Corporation and no evidences or indebtedness shall be issued in its name unless authorized by the Board. Such authority shall be confined to specific instances. Section 3. Disbursements. 1. Upon approval of the budget, the President or the President's authorized agent shall be authorized to make disbursements for expenses provided for in the budget without any additional approval by the Board. 2. No disbursements of funds except as noted in Section 3(1) be made unless the same have been approved: authorized and ordered by the Board. 3. All disbursements of funds shall be made by check. Checks shall signed by such Officers, agents and employees as shall be designated by the Board. Section 4. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select. Section 5..Annual Audit. The accounts of the Corporation shall be audited annually as of the close of business at the end of its fiscal year by an accredited independent auditor. Article VI. Fiscal Year The fiscal year of the Corporation shall be as fixed by the Board. Article Vii. Distribution of Net Cash Proceeds The Board shall establish criteria for the distribution of the Corporation's share of the net cash proceeds from all operations of the Corporation. Such distribution criteda shall be consistent with the Articles of Incorporation of the Corporation. Notwithstanding anything contained in these Bylaws or the Articles of Incorporation, the proceeds from the annual Taste of Dubuque event or any successor event shall belong solely to the Dubuque County Historical Society. Article VIII. Waiver of Notice Whenever any notice is required to be given to any Director of the Corporation under the provisions of these Bylaws or under the provisions of the Articles of Incorporation or under the provisions of the iowa Nonprofit Corporation Act, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to '7 the giving of such notice. Article IX. Parliamentary Procedure The proceedings of the Board of Directors, and its committees, shall be governed by and conducted according to the latest edition of Robert's Rules of Order, Article X. Amendment These Bylaws may be amended, added to or repealed only by the unanimous vote of the Directors representing the Corporation's Permanent Members. Article XI. Miscellaneous Any matters not heretofore addressed by these Bylaws, or in the Articles of incorporation, shall be governed by the provisions of the "Iowa Nonprofit Corporation Act" and all amendments thereto. Article Xll. Indemnification The Corporation shall indemnify each of its Directors, Officers and employees, whether or not then in office, and such person's executor, administrator and heirs, against all reasonable expenses actually and necessarily ~ncurred by such person, including, but not limited to judgments, fines, costs, and counsel fees, in connection with the defense of any civil, criminal, administrative or investigative actions, suit or proceeding to which such person may have been made a party because such person is a Director, Officer or employee of the Corporation. Such person shall have no dght to reimbursement; however, ~n relation to matters as to which such person has been adjudged liable to the Corporation for negligence or misconduct in the performance of a duty as a Director, Officer or employee. The dght to indemnity for expenses shall also apply to expenses of suits which are compromised or settled if the Court having jurisdiction of the action shall approve such settlement. The foregoing dght of indemnification shall be in addition to and not exclusive of, all other rights to which such Director, Officer, or employees may be entitled, but shall not be contrary to the provisions of Section 504A.4(14), Code of Iowa, as now or hereafter amended. Article Xlll. Purposes The purposes of the Corporation shall include but not be limited to education about the Mississippi River. The purposes sha] also include promoting river front development and tourism in the Port of Dubuque and working in cooperation with governmental entities, businesses and organizations that share the same purposes. Article XIV. Termination or Dissolution Upon termination or dissolution of the Corporation, the distribution of any surplus property and assets remaining after all the debts and obligations of the Corporation have been paid and satisfied, shall be distributed to and vested in a non-profit Corporation(s) organized and existing under the laws of the State of Iowa, whose business purposes in the greater Dubuque, Iowa area is similar to the purposes of this organization, and which is exempt from taxation, pursuant Chapter 504A, Code of Iowa, and the provisions of Section 501 (c)(3), (4) or.(6) of the Intemal Revenue Code, as amended, Approved this day of ., 2003. City of Dubuque, Iowa By Michael C. Van Milligen Dubuque County Historical Society By Jerry Enzler Dubuque Area Chamber of Commerce By Steward Sandstrom