Mediacom Confidential Agreement
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MEMORANDUM
July 13, 2004
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TO:
The Honorable Mayor and City Council Members
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FROM:
Michael C. Van Milligen, City Manager
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SUBJECT: Mediacom Confidentiality Agreement
A continuing frustration in cable franchise renewal negotiations has been the slow and
incremental release of requested technical and financial information needed to
understand and to verify proposals by Mediacom, particularly in the areas of the
Institutional Network, PEG Access commitment, and business broadband infrastructure.
Cable Franchise Administrator Merrill Crawford recommends City Council approval of a
Confidentiality Agreement between MCC Iowa LLC (Mediacom) and the City of
Dubuque that will protect certain detailed maps, network designs and closely-guarded
technical and financial information from disclosure outside of the franchise renewal
process in ways that could prove competitively damaging to Mediacom.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Michael C. Van Milligen
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Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Merrill Crawford, Cable Franchise Administrator
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CITY OF DUBUQUE, IOWA
MEMORANDUM
July 12, 2004
MEMO TO: Michael C. Van Milligen, City Manager
FROM: Merrill Crawford, Cable Franchise Administrator ~
SUBJECT: Mediacom Confidentiality Agreement
INTRODUCTION: The purpose of this memorandum is to recommend execution of a
Confidentiality Agreement to enable City staff, consultants and attorneys to examine
documents, maps and other records supplied by Mediacom which may contain
information the cable operator considers proprietary.
BACKGROUND: A continuing frustration in cable franchise renewal negotiations has
been the slow and incremental release of requested technical and financial information
we need to understand and to verify proposals by Mediacom, particularly in the areas of
the Institutional Network, PEG Access commitment, and business broadband
infrastructure. However, persistence appears finally to be getting us down to the level of
data we need.
On June 14, Mediacom presented a proposed form of a confidentiality agreement
intended to protect certain detailed maps, network designs and closely-guarded
technical and financial information from disclosure outside of the franchise renewal
process in ways that could prove competitively damaging to the company.
Upon initial review, we found Mediacom's proposed confidentiality agreement to be
unacceptable. Corporation Counsel Barry Lindahl and attorney Rick Ellrod have instead
prepared the attached form of a confidentiality agreement, based upon those the City
has used previously in accordance with Iowa law. Mediacom representatives tell us the
company will accept the City's version, and that the requested technical and financial
information that triggered their confidentiality concern is ready for immediate delivery
upon execution of the confidentiality agreement. Also, CBG Communications, Inc.,
Miller & Van Eaton, and other members of the City's team have expressed willingness to
sign the subordinate agreements which would bind each of them to confidentiality in this
process as well.
RECOMMENDED ACTION: The Recommended Action is that the City Council approve
the attached Confidentiality Agreement and authorize the City Manager to sign it.
cc: Cindy Steinhauser, Assistant City Manager
Barry Lindahl, Corporation Counsel
Charles Ellis, Chair, Cable TV Regulatory Commission
CONFIDENTIALITY AGREEMENT
This confidentiality agreement ("Agreement") is made and entered into this - day of
lilly, 2004, by and between the City of Dubuque, a municipal corporation ("City"), and MCC Iowa
LLC, a Delaware limited liability company ("Mediacom").
WHEREAS, Mediacom currently holds a cable franchise from the City, as successor in
interest to the original grantee; and
WHEREAS, Mediacom and the City are currently engaged in renewal proceedings for that
franchise, pursuant to applicable law; and; and
WHEREAS, in connection with this renewal proceeding, Mediacom has submitted and will
submit certain documents to the City and its representatives that Mediacom wishes to be held
confidential, including but not limited to maps outlining Mediacom's presently constructed and
proposed physical infrastructure submitted in connection with a proposal to construct and potentially
maintain an institutional network; and
WHEREAS, Mediacom is required to provide certain information to the City pursuant to its
franchise agreement and applicable law; and
WHEREAS, the parties hereto desire to protect the confidentiality of information claimed by
Mediacom to be confidential;
NOW THEREFORE, in consideration of the mutual promises contained herein and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows.
1. To the extent that documents provided by Mediacom pursuant to this Agreement
contain information that Mediacom claims in good faith to be trade secrets, or highly privileged,
proprietary or confidential information, that is not generally available to the public, and which
Mediacom desires to protect against unrestricted disclosure or competitive use (hereinafter,
"Restricted Information"), Mediacom shall mark these documents as "CONFIDENTIAL".
2. All Restricted Information will be kept confidential by the City to the maximum
extent permitted by law, and shall not be reproduced, disclosed, distributed or communicated,
directly or indirectly, in whole or in part, to any other Person (as defined below), except that each
party may disclose the Restricted Information or portions thereof to those persons or entities who, in
its judgment, are reasonably required to review the Restricted Information in connection with the
renewal process, including, but not limited to, its respective (i) directors, officers, members, partners,
attorneys and employees and (ii) representatives, agents, consultants, advisors, lenders, professionals,
insurers and other persons or entities who have acknowledged an obligation of confidentiality and
executed an agreement to be bound by the terms and conditions of this Agreement (the persons in
clauses (i) and (ii) to whom such disclosure is permissible being collectively called
"Representatives").
3. The City agrees that it will inform each of its Representatives who have, or will have,
access to any or all of the Restricted Information, of the existence and content of this Agreement and
will require all such Representatives to be bound by and observe the confidentiality requirements of
this Agreement by such Representative's signature on a document substantially in the form attached
as Exhibit A.
4. Notwithstanding any other provisions herein, Mediacom understands that the City's
consu1tants must report the results of their findings, which may in part be based on review of
Confidential Information, to the City. Consequently, the City's consultants may make reports to the
City that will sunnnarize their review of Restricted Information and which will be presented in
aggregate fashion, without disclosing the specifics of such information.
5. In the event that the parties or any of the irrespective Representatives (the "Compelled
Party") are required by law or legal process (including by deposition, interrogatory, request for
documents, subpoena, civil investigation demand or similar process) to disclose any of the Restricted
Information, the Compelled Party shall use its good faith efforts to provide, or shall use its good faith
efforts to cause such Representative to provide, prompt prior written notice of such compu1sion to
the other party hereto, so that such party may seek a protective order or other appropriate remedy or,
if appropriate, waive compliance with the terms of this Agreement. If a Compelled Party is legally
required to disclose Restricted Information, the Compelled Party shall use its best efforts to disclose
only such portion of the Restricted Information as it is legally compelled to disclose and to obtain an
order or other reliable assurance that confidential treatment will be accorded to the disclosed
Restricted Information.
6. The term "Person" as used in this Agreement will be interpreted broadly to include,
without limitation, any corporation, company, partnership, individual or other entity of any kind
whatsoever.
7. The City agrees that it will not use Restricted Information in its decision-making
process as to whether the City will establish any entity that wou1d provide cable or other
communications services, including but not limited to Internet access services or telephony. In the
event the City does decide to establish an entity that provides such services, any and all efforts will
be made to keep this information separate from the control and management of any such entity.
8. Notwithstanding anything to the contrary in this Agreement, the term "Restricted
Information" shall not include any information which (i) at the time of disclosure or thereafter is
generally available to or known by the public (other than through a disclosure directly or indirectly
resulting from a violation hereunder), (ii) at the time of disclosure was already known on a non-
confidential basis or had been independently developed by the applicable party as evidenced by its
business records, in each case, provided that such information is not known by the applicable party to
be subject to another confidentiality agreement with or other obligation of secrecy to the disclosing
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party or any other Person, or (iii) was available to the applicable party on a non-confidential basis
from a source (other than pursuant to this Agreement) that is not and was not bound by a
confidentiality agreement or otherwise prohibited from transmitting the information to the applicable
party on a non-confidential basis by a contractual, legal or fiduciary obligation). This Agreement
does not affect the disclosure or admissibility of information or materials that are otherwise known
or discoverable merely because such information or materials are also disclosed pursuant to this
Agreement.
9. This Agreement in no way waives any right any person or persons may have to
contend that any documents or information are or are not discoverable, confidential, proprietary,
privileged or in the nature of a trade secret outside of the exchange of information pursuant to this
Agreement.
10. No failure or delay by either party in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right,
power, or privilege preclude any other or further exercise thereof.
11. The parties hereby irrevocably and unconditionally consent to submit to the non-
exclusive jurisdiction of the conrts of the State ofIowa and the United States of America located in
Iowa for any actions, suits or proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby (and the parties agree not to commence any such action, suit or
proceeding relating thereto except in such conrts), and further agree that service of any process,
sunnnons, notice or document by U.S. registered mail to the parties' addresses set forth below shall
be effective service of process for any action, suit or proceeding brought against such party in any
such conrt. The parties hereby irrevocably and unconditionally waive any objection to venue of any
action, suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby in the conrts of the State of Iowa or the United States of America located in
Iowa, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in
any such conrt that any such action, suit or proceeding brought in any such conrt has been brought in
an inconvenient forum.
12. This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. This Agreement may not be changed, modified,
amended, supplemented or assigned except by a written instrument signed by each of the parties.
13. Each party understands and agrees that this Agreement shall not be construed or be
used to claim that a definitive contract or agreement providing for a franchise renewal exists between
the parties. Each party also agrees that unless and until a final definitive agreement regarding a
transaction between them has been executed and delivered, neither party will be under any legal
obligation of any kind whatsoever with respect to such a renewal by virtue of this Agreement, except
for the matters specifically agreed to herein.
14. The confidentiality conditions of this Agreement shall become effective as of the date
first written above and shall terminate three (3) years thereafter, unless earlier terminated by written
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notice of either party to the other. After such termination date, any Restricted Information may be
disclosed or used without restriction.
15. If one or more provisions of this Agreement shall be held unenforceable, invalid, or
illegal in any respect, such unenforceability, invalidity, or illegality shall not affect any other
provision of this Agreement, which shall be construed as if such unenforceable, invalid, or illegal
provision has never been a part hereof.
16. Any notices required or permitted hereunder shall be given to the appropriate party at
the address specified below such party's signature or at such other address as the party shall specify
in writing. Such notice shall be deemed given upon either (i) the date of the personal delivery of
such notice. (ii) upon the date of confirmation of the transmittal of the notice by telecopy (provided
that such telecopied notice is followed, within twenty-four (24) hours by personal delivery to the
receiving party or by deposit with an overnight courier of national reputation) or three (3) days after
the date of mailing such notice by certified or registered mail, postage prepaid.
17. This agreement will be governed by and construed in accordance with the internal
laws of the state ofIowa (without giving effect to any conflicts oflaw principles thereof).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.
MCC IOWA LLC
By:
[NAME]
[TITLE]
CITY OF DUBUQUE
By:
[NAME]
[TITLE]
4253\()5\()() 102918. DOC
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Attachment A
NON-DISCLOSURE AGREEMENT
In connection with the work that 1 am performing in connection with the renewal of a cable
television franchise or franchises held by MCC Iowa LLC ("Mediacom"), I am to be given access to
certain material of Mediacom provided under a Confidentiality Agreement. An executed copy of the
Confidentiality Agreement has been delivered to me. I have read that Agreement and I agree to
comply with and be bound by its terms.
Signed:
Name:
Title:
Date:
4253\05\001 02918.DOC
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