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River Rides Lease Renewal Req 5~~@UE ~<k~ MEMORANDUM October 26, 2004 TO: The Honorable Mayor and City Council Members '~I , , , FROM: Michael C. Van Milligen, City Manager SUBJECT: Dubuque River Rides, Inc. Dubuque River Rides currently leases approximately 340' of water frontage in the Ice Harbor from the City. This lease is due to expire on December 31,2004. Included in the lease is an option to extend the lease for an additional eight years. Under the terms of the lease, Dubuque River Rides was required to provide written notice to the City ninety days prior to the termination date of its intent to exercise its option. No notice was received prior to the September 30, 2004 deadline. On October 11, 2004, the City received a request from Nancy Webster, President and CEO of Dubuque River Rides, to accept the late notice to extend the lease. At the October 18, 2004 City Council meeting, the City Council tabled the request and asked for additional information from City staff. In 1995, the City Council allowed a lease to be extended under similar circumstances. However, my recollection is that the City Council cautioned other leaseholders at that meeting that in the future the City would require leaseholders to meet the conditions of their lease, including deadlines for extensions. In fact, in 1996, the City Council did not allow the Dubuque Terminals lease to renew when a deadline was missed. I respectfully request Mayor and City Council denial of the Dubuque River Rides' request to extend the lease under the current language and ask that I be directed to approach them about negotiating a new lease. /ltLv~1 /1,/]l!L Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager 5~ ~<k~ MEMORANDUM October 26, 2004 TO: Michael C. Van Milligen, City Manager FROM: Cindy Steinhauser, Assistant City Manager SUBJECT: Dubuque River Rides, Inc. Introduction The purpose of this memorandum is to provide you information related to the lease between the City and Dubuque River Rides, Inc. Backaround Dubuque River Rides currently leases approximately 340' of water frontage in the Ice Harbor from the City. This lease is due to expire on December 31,2004. Included in the lease is an option to extend the lease for an additional eight years. Under the terms of the lease, Dubuque River Rides was required to provide written notice to the City ninety days prior to the termination date of its intent to exercise its option. No notice was received prior to the September 30, 2004 deadline. Discussion On October 11, 2004 the City received a request from Nancy Webster, President and CEO of Dubuque River Rides, to accept the late notice to extend the lease. At the October 18, 2004 City Council meeting, the City Council tabled the request and asked for additional information from city staff. Attached is a layout of the vessels now operated by Dubuque River Rides along with dimension of each vessel. I have reviewed the Dubuque River Rides lease with Corporation Counsel Barry Lindahl and we have identified several concerns related to the lease language. They include: . Parking agreement - Dubuque River Rides is party to the Ice Harbor Parking Agreement. Under this Agreement, each party must agree to any new use at the Ice Harbor Parking District if additional parking will be needed as part of the new use. Thus, if additional parking is needed but not provided for, a project can be delayed until all parties to the Parking Agreement consent. This has become an issue in the past when parties to the parking agreement, such as the National Mississippi River Museum and Aquarium, have attempted to expand operations. This parking was built by the City and, as leases expire, the City should have sole discretion on the adequacy of parking for new uses. . Lease Rate - The current lease amount is not at market rate for prime waterfront real estate ($5,500/year x COL index, currently $7,574.60). The City may want look at a different rate for water frontage or consider more the actual impact this lease has on the Ice Harbor and establish a rental rate based upon 1) vessel square footage (approx. 8,883 surface area) or 2) square footage of the entire harbor area taken up by vessels including vessel turning radius (approx. 36,380 sq. ft. - 340' x 107'). Certainly $7,574.60 a year for this prime real estate is inadequate. . Vessel layout - Attached is the existing Phase 2 layout for the Dubuque River Rides operations. The recent lease amendment will allow Dubuque River Rides to go to the layout shown under Phase 3. Phase 3 will take up the entire area of the waterfront leased to the company and the lease gives them exclusive right to do so. . There are no provisions in the lease that allow adjustment of the rental rate at interim periods (i.e. every 5 years) to reflect market rate. . The insurance schedule in the lease should be amended to be consistent with current city insurance requirements. . The indemnity language in the lease should be amended to be consistent with current city indemnity requirements. All of these are items that need updating to reflect a lease that is consistent with the City's other current leases, including the ability to be modified at key intervals. In addition to a rental rate that reflects the market value of waterfront property, there are some significant concerns with not having current insurance requirements and indemnity language to protect the City's interests. Also, the exclusive use of this area is of great concern. Under the terms of the Vision Iowa Agreement, the City is obligated to construct transient boat docks in the Ice Harbor. With the recent developments at the Port of Dubuque, very little waterfront in the harbor remains to construct these boat docks. The waterfront that is leased exclusively to Dubuque River Rides includes sufficient space to moor Dubuque River Ride's vessels as well as accommodating transient boat dock. Construction of these docks will require permission from the Corps of Engineers. As part of the 2003 amendment to the lease, Dubuque River Rides agreed not to object to the Corps on the City's request to conduct the boat docks in the Ice Harbor provided the docks are not located in the leased area. Should the leased area be identified as the location for the boats docks, according to the terms of the lease, Dubuque River Rides can object and the City may not receive a permit from the Corps to construct the boat docks. At its October 11, 2004, the Vision Iowa Board noted the City of Dubuque's requirement to finish all of the components identified in the Vision Iowa Agreement, including the boat docks. Should the City be unable to meet the requirements of the Agreement to construct the boat docks, the $20 million Vision Iowa grant could be at risk. Finally, it has been a long-standing City Council policy that expired leases should be renegotiated to reflect current financial and non-financial conditions. In 1995, Dubuque Yacht Basin's lease option with the City of Dubuque expired. At the July 17,1995 City Council meeting City Council acted upon the expiration and required Shanley to notify the City sixty days in advance of the next expiration on its intent to renew their lease. In 1996, Dubuque Terminals, Inc. submitted to the City Council a late notice to renew two City leases for eight acres of riverfront property. The leases had expired by virtue of Dubuque Terminals failure to submit a timely notice of excising an option in according to the terms of the leases. The discussion at the Council Council meeting when the request was considered included an acknowledgement that lease renewals are not automatic. The City Manager was directed to renegotiate the leases at the February 6, 1996 City Council meeting. Attached is a memo from you requesting City Council direction on the Dubuque Terminals matter. The memo suggests three alternatives to respond to late requests for lease extensions1) affirm the termination, 2) extend the lease or 3) renegotiate the lease. The City Council established the policy in cases of late requests of affirming the lease termination and directing staff to negotiate a new lease that would reflect current financial and non-financial conditions. This has been the City policy staff has following since that time. Recommendation Based upon these concerns relating to riverfront leases in general and the lease with Dubuque River Rides, Inc. in particular, and the City Council's policy regarding late requests for lease renewals, I recommend that this matter be referred to city staff for negotiation of a new lease. cc: Barry Lindahl, Corporation Counsel -------- CITY OF DUBUQUE, IOWA MEMORANDUM February 1, 1996 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Dubuque River Terminals Lease Two City leases with Dubuque Terminals, Inc., consisting of over eight acres of riverfront property have expired by virtue of Dubuque Terminals not exercising an option in writing to renew the leases in five year increments, sixty days prior to the date of the lease expiration. Subsequently a request was received form Dubuque Tank Terminals, Inc. to extend the leases. The Council has several options in response to the request for the lease extension: 1. 2. Affirm the termination of the leases. Extend the leases for an additional five year period under the same terms and conditions, as though they had not expired. 4IÞ Renegotiate the leases. This renegotiation could include all conditions of the lease, including financial, or just non-financial conditions. If the financial conditions are renegotiated, staff requests that the City Council authorize an appraisal of the property for a cost of approximately $4,500. 1 respectfully request Mayor and City Council direction on this matter. fJJJ ~ flit- Mfchael C. Van Millige MCVM/j Attachment cc: Barry Lindahl, Corporation Counsel Tim Moerman, Assistant City Manager Mike Koch, Public Works Director * DUBUQUE RIVER RIDES October 11, 2004 To the Mayor and City Council City of Dubuque City Hall Dubuque, IA 52001 Dear Mayor and Council Members: I am the President and Chief Executive Officer of Dubuque River Rides, Inc. Our company is a party to a Lease between the City of Dubuque and Roberts River Rides, Inc., dated March 4, 1991, which was assigned to our company, then known as the Spirit of Dubuque, Inc. on May 3,1994, and which is due to expire on December 31,2004, unless extended under the terms of the Lease. Pursuant to paragraph 2 of Article I of the Lease, we may elect to extend the Lease on the same terms and conditions for an additional eight-year term, by giving the City written notice of such extension not less than ninety days prior to the termination date of the initial term. We realize that the ninety day notice period expired on September 30,2004. However, due to a variety of circumstances, including the absence of our corporate counsel from town due to the death of an immediate family member, we inadvertently missed the expiration of the notice period. It has always been our intention to extend this Lease. In fact, less than one year ago we executed an Amendment to Lease Agreement revising certain provisions of the Lease, which Amendment was approved by the City Council. We therefore respectfully request that the City of Dubuque excuse this inadvertent error, and agree to accept this written notice of our intention to extend the Lease for the additional eight-year period provided in the Lease. Thank you for your attention to this matter, and if you have any questions, please do not hesitate to contact us. -)1~ 4/ Mß- Nancy M. Webster President and Chief Executive Officer Cc Barry Lindahl Home of: SPIRIT of Dubuque' Miss Dubuque. Ice Harbor Galley 3rd Street Ice Harbor, Port of Dubuque, fA 52001 563-583-8093 . FAX 563-585-0634 www.dubuqueriverrides.com . email: boats@dubuqueriverrides.com