Mediacom Franchise Renewal
DUB~
~~~
MEMORANDUM
April 14, 2005
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Mediacom Franchise Renewal Agreement
City representatives met with representatives of Mediacom for almost 50 hours over
four days in the last two weeks to complete negotiations on the final points related to a
15-year Cable Television Franchise Agreement, which will, as stated in the agreement,
".. .renew Mediacom's nonexclusive franchise... to construct, operate, maintain, update
and reconstruct a cable services delivery system in the City..."
The City Council was guided in negotiations by extensive research into changing
technology and community needs, through written citizen surveys, focus groups, public
hearings, and soliciting of local public opinion by mail, by email and by voice mail. The
City was certainly restrained by provisions of federal and state law in what could be
requested in the franchise.
The principle Mediacom representatives in this long and complicated process have
included:
Bruce Gluckman, V. P. Legal and Regulatory Affairs
Charles King, Sr. Vice President, North Central Division
Jon Koebrick, Director of Government Relations, North Central Division
Scott Westerman, Regional Vice President for Eastern lowa/Western Illinois
Lee Ann James, Sr. Manager of Government Affairs
Kathy McMullen, Area Manager of Dubuque.
Attorneys Eric Breisach and Sharon O'Malley Monahan of the Fleischman &
Walsh law firm of Washington, D.C.
Representing the City were:
Corporation Counsel Barry Lindahl
Cable Franchise Administrator Merrill Crawford
Cable TV Regulatory Commission Chair Charlie Ellis
Attorney Frederick Ellrod III of the Miller & Van Eaton law firm of Washington,
D.C.
Technical Consultant Richard Nielsen of CBG Communications, Inc. of St. Paul,
Minnesota
City Manager Michael Van Milligen
Other experts and stakeholders contributed to the research, analysis and information
gathering stages of the process. The proposed agreement and ordinances, and the
interplay among them, are quite complex legally, technically, and financially.
An obvious question is why after over three years was an agreement reached at this
time? I would attribute the conclusion of this process to several important events.
1. First and foremost, while the City Council wanted a deliberative process that
incorporated a tremendous amount of citizen input, and while the City Council
listened sincerely to the Mediacom proposals, the City Council, as of
December 31,2004, determined that there would be no further extensions of the
existing franchise agreement. The City Council then began the expensive and
time-consuming formal process required by the federal government that could
have resulted in the termination of the rights of Mediacom to have a franchise in
Dubuque.
2. Another important factor was the City Council decision on March 21,2005, to
initiate the process to complete a study to determine the feasibility of establishing
a City-owned Municipal Communications Utility.
3. Without a doubt, the formation of a citizen's group that is exploring putting on the
November ballot a question to the voters allowing the City to form a Municipal
Communications Utility was an important factor.
I believe it also helped the negotiations when Senior Vice President of the North Central
Division Charles King inserted himself directly into the negotiations. I also believe that
he and Area Manager Kathy McMullen will do their best to honor the conditions of the
franchise.
Throughout the process, the City Council advocated for the cable-related needs and
interests of a number of constituencies, including current and future cable subscribers,
senior citizens, business and industry, government and educational institutions,
nonprofit organizations and others. Ultimately, the City Council has represented the
Dubuque taxpayer as stewards of public property granted to Mediacom for private
commercial use.
The following are the significant terms of the franchise renewal agreement:
1. Franchise Term
The proposed franchise term is fifteen (15) years. The franchise would be
for the delivery of cable services and would be nonexclusive.
2. Broadcast Basic Tier
While the size, contents, and pricing of a basic cable service package
cannot be a formal term of the agreement, Mediacom has represented to
the City that it will begin to offer a limited "broadcast basic" package with
21 channels.
3. Senior Citizen Discount
Mediacom will maintain the current ten percent (10%) Senior Citizen
discount on the 72-channel Family Cable tier, which is currently priced at
$45.50 for most subscribers, $40.95 for seniors. There will be no discount
on the price of the limited "broadcast basic" package. A subscriber (head
of household) who reaches the age of 65 and submits an application to
Mediacom with proof of age and proof of at least one other utility in their
name at that address will qualify for the Senior Citizen discount.
4. Technology Updating Fund
To keep the cable system as technologically current as possible,
Mediacom will contribute $300,000 per year in years one through twelve of
the franchise, (totaling $3.6 million), to an Updating Fund. This money
can only be spent by joint agreement of the City and Mediacom.
5. System Upgrade
Within twenty-four (24) months of the signing of the agreement, Mediacom
will upgrade the electronics in their Dubuque cable system to increase the
total bandwidth (capacity) from the current 750 MHz to 860 MHz.
Mediacom would expend all or part of the first four years of contributions
to the Updating Fund on this upgrade.
6. Digital vs. Analog
While this issue will be subject to significant FCC regulation, Mediacom
will be permitted to convert digital signals to analog to avoid making old
analog television sets obsolete. They will also strive to pass digital and
high-definition (HDTV) signals to the greatest extent possible to
accommodate new television receivers designed for these signals.
Eventually, the entire television signal spectrum will evolve to digital
technology.
7. Institutional Fiber Network (I-Net)
Within the first 18 months of the agreement, Mediacom will construct a
new "dark fiber" Institutional Network. The term, "dark fiber" means that
users, not Mediacom, provide and operate the end devices to light the
fiber. This I-Net will interconnect 77 government, educational and not-for-
profit facilities in Dubuque. The City will be able to use the I-Net for any
non-commercial purpose. Hospitals and medical facility use of the I-Net
will be restricted to community emergency situations, and all other not-for-
profit facilities, including educational institutions, will be subject to
restrictions on their use of the I-Net for communications outside the
network.
8. ICN Links
Mediacom will continue to maintain and operate all existing links to the
Iowa Communications Network (ICN) at no charge, and the new fiber I-Net
may be interconnected with the ICN.
9. Business Fiber Optic Infrastructure and Services
In addition to existing Mediacom fiber optic facilities, as the I-Net is
constructed, at least 6 additional new optical fibers will be installed along
its route for Mediacom to use in delivering commercial networking services
to business and industry. Mediacom will extend fiber in the right-of-way to
the curb within six months of a signed agreement by any business for a
large bandwidth service requiring fiber, at no additional cost to the
business. The monthly charge for the particular communication service
will be negotiated between that business and Mediacom.
10. Industrial Parks
In addition to any existing Mediacom fiber and the new fibers to be
installed along with the I-Net, Mediacom will extend fiber links to Dubuque
Technology Park and Dubuque Industrial Center West within two years of
the agreement.
11. Trenching
When either the City or Mediacom is trenching in the public right-of-way,
the other party would have the right to install its own conduit at the same
time. However, if the City ever establishes a municipal communications
utility that competes with Mediacom, the City would have to reimburse
Mediacom on a pro-rata basis for its portion of the trenching costs for any
cable the City previously installed in Mediacom trenches.
12. Importing Broadcast Television Signals
All broadcast television station signals will be imported into the Dubuque
system by optical fiber, resolving a 50-year-old reception problem.
13. Universal Service
Mediacom is required to extend residential-type cable service to all
businesses and residences within the City.
14. TDD/TTY
Mediacom will direct hearing-impaired callers to Answer Iowa, a state-
wide service, for assistance. The company will clearly advertise the
availability of the Answer-Iowa service.
15. Emergency Alert
Unless preempted by the Federal Emergency Alert System, the City would
continue to have the ability to issue local alerts, subject to regulation by
the FCC.
16. Franchise Fee
Mediacom will pay a franchise fee of five percent (5%) of gross revenues
on cable services. If any action of law expands the base upon which
franchise fees may be collected, Mediacom will automatically expand its
computation and payment of franchise fees in Dubuque accordingly.
17. PEG (Public, Educational, Government) Access Channels
Mediacom will continue to provide on its subscriber network two public
access television channels, one shared educational access channel, and
one government access channel, as is currently offered. In addition,
Mediacom will provide a second educational access channel dedicated to
24-hour, 7 -day programming by the Dubuque Community Schools. On or
before December 31, 2006, Mediacom will also make PEG Access
programming available to digital subscribers through its Video On Demand
service. At such future time as Mediacom carries local broadcast stations
in high definition (HDTV), any PEG Access channel will also be
transmitted in HDTV format upon request of the entity managing the
channel.
Throughout the term of the franchise, Mediacom will continue to provide
studio production facilities, production assistance, editing, scheduling and
playback, equipment maintenance, training, outreach, management and
administrative support for users of the public access channels at the same
level as was provided as of January 1, 2005.
18. Capital Grants for PEG Access Equipment and Facilities
Separate from the franchise fee, Mediacom will deposit 1.75% of gross
revenues in an interest-bearing account from which the City may draw for
capital support for PEG and I-Net use.
19. Charitable Foundation
While not included in the franchise agreement, Mediacom will form a
charitable foundation to which the company will contribute .25% of cable
service gross revenues (estimated at $25,000 per year) to distribute in the
community. The fund will focus upon arts and cultural affairs. The board
of the foundation will include Mediacom employees and members of the
City's Cultural Affairs Advisory Commission.
20. Remedies
Instead of moving directly to termination of the franchise as the only
penalty for a violation of the franchise agreement, the new franchise
provides incremental steps and monetary penalties for different types of
violations.
21. Right-of-Way Ordinance
Mediacom's use of the rights of way will be the subject of a separate
ordinance based upon one devised by the Iowa Municipal Attorneys
Association, with Corporation Counsel Barry Lindahl participating.
Although this ordinance will initially apply only to Mediacom, the goal will
be to eventually apply the right of way ordinance to all utilities.
Separate from the franchise renewal agreement, Mediacom will also create a Cultural
Affairs Charitable Mediacom Foundation to provide funding for local arts and cultural
affairs activities in the estimated amount of $25,000 per year. The City Council would
appoint two of the five members of this Charitable Foundation.
Due to prohibitions and restrictions of federal law, several clearly-identified needs and
interests could not be required by the City nor incorporated into the terms of a cable
franchise renewal. Some of these include:
· Regulation of cable subscription rates;
· Regulation of programming content (networks/channels offered);
· Requiring other non-cable communications services.
As a cable television franchise renewal, the franchise agreement does not fully address
the community's needs for communication services for residents and businesses.
However, as the upgrades and benefits of the cable franchise renewal are implemented,
the City will continue to identify needs and pursue other avenues to assure that
affordable, state-of-the-art communications services of all types are provided in a
competitive market throughout the community.
I respectfully recommend Mayor and City Council approval of the Mediacom Cable T.V.
Franchise and all related ordinances and documents, after a public hearing to be held
on May 2, 2005.
l ~~~ /
I ! r .. /
.' V' /1 '.
(llh/ (1"1. 1\
Michael C.Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Merrill Crawford, Cable Franchise Administrator
Charlie Ellis, Cable TV Regulatory Commission Chair
Rick Ellrod, Esq.
04/14APR, 14,2005 1:46PM56952DUBUQUE CITY MANAGER:JM LEGAL
NO. 9753 P. 3/1312
MediacomJ
Brltet Gllltlcman
Vie, P",id~t of Legal .:I Rt!gulaJPry AjJQ{r$
April 14, 200S
~ FACSIMILE (@563.58'~4149)
AND OVERNlGHt.MAa
Michael Van Milligan
City Manager
City of Dubuque
City Hall
50 West 13m Street
Dubuque, Iowa 5200 I
Re: Offer to Renew Cable Television Franchise Agreement Arrived at Through Infonnal
Negotiations
Dear Mike:
I understand that you are placing renewal of MCC Iowa, LLC's cable telovision franchise on the
City Council's April 18. 2005 meeting agenda... To that end, and in accordance with our
agreement, we provide the following:
1. Siped Franchise Agreement. Accompanying this letter is a signature page e~ecuted
on behalf of MCC Iowa, LLC. We will forward an original signature page along with the entire.
Franchise Agreement via overnight delivery tonight. The Franchise Agreement that we have
signed js the document sent to you by Rick Ellrod via email at 10:06 AM EDT this morning.
Sinc.e the City Council has not yet aCle.d on the Franchise Agreement. MCC Iowa, LLC's
submis..~ion of the signature page constitutes an offer which the City may accept. OUf offer wi1l
remain open until June 1, 2005 at which time, if not previously accepted, it will become null and
void unless we notify you in writing that we are extending the expiration date of the offe... Please
also be advised that we have worked closely with Attorney Lindahl to f11lalize Exhibit C (bonding
details) and thai further mutually acceptable modification5 to that schedule may be required by the
bond issuer As soon as we have a response from the issuer. we will ad"ise Mr. Lindahl.
2, FoundadoD Commitment. By way of this letter, MCC Iowa, LLC commits to
execution of the comrnilment letter substantially in the fOnD of the sample letter accompanying
this letter ("Commitment Letter"). MCC Iowa. LLC will execute tbe Commitment Letter at the
same time that it fonnally executes Exhibit A to the Franchise Agreement (Acceptance of
Franohise by the Grantee), but in no case later thllIl five business days follOWing the City's
acceptance ofMCC Iowa, LLC's renewal offer.
3. Third Street Lease. Also accompanying Uris letter i~ the form of the Third Street
Lease Agreement that we have negotiated wi[h Mr. Lindahl. M,CC Iowa, LLC would execute the
MCC Iowa. LLC
100 Crystal Run Road. Middletown. NY 10941 . 84-5-695-26S0.Pu. 845.695-2669
04/14APR.14.2005 1:46PM56SS2DUBUQUE CITY MANAGER:lM LEG.o.L
NO. 9753 p, 4/1312
Micl1ael Van Milligan
Pas~ :hU
final lease doc.umenr at the same time it accepts the franchise and submits the foundation
commitment leuer.
If you have any questions about rhese documents or any of the procedure that we have arranged
rhrough the City's legal team, please contact me immedia.tely. Plea.~e also confirm that this matter
has been placed on the April 18, 2005 City Council meeting agenda.
Thank you for your assistance.
Sincerely,
~~hu-
Bruce Oluc:km41n
BG
cc: Barry Lindahl
Frederick Ellrod m
Eric Breisach
04/14APR, 14,2005 1:46PMs6952DUBUQUE CITY MANAGER)M LEGAL
NO. 9753 P. 5/1312
(2) When any proVlsloD of the Cable Ordinance is expressly mentioned
herein. such reference shall not be construed to limit the applicability of any other provision of
the Cable Ordinance or City law that may also govern the particular matter in question.
(i) Entire Arreement: This Agreement, including all exhibits, constitutes the entire
agreement between the parties with respect to the subject matter hereof as of the date SeI forth
above. This Agreement supersedes any prior understandings. agreements, and conununications
(oral or written).
(j) Vnderstandinl and Consent' This Agreement is freely and voluntarily given by
each of the parties, without any duress Or coercion, and after each party has consulted with its
counsel. Bach party and its counsel have participated fully in the review and revision of this
Agreement, and any rule of construction to the effeet that ambiguities are to be resolved against
the drafting party shall not apply in interpreting this Agreement. Bach party hereto has carefully
and completely read all oithe tenus and provisions of this Agreement, and acknowledses that) to
the best of its knowledge) eacb provision is lawful and enforceable. If the Grantee believes that
the tenns of the franc.hise or any City law OT regulalion conflicts with any state Of federal law or
regulation, the Grantee shall notifY the City immediately upon learning of the contlict.
AGREED TO THIS
DAY OF
. -
City of Dubuque. Iowa,
a. municipal corporation of Iowa
By:~
Ciry Manager
ATTEST:
City Clerk
MCC JOW A. LLC,
a Delaware Limited Liability Company
BY:Cb~ bw- ___
Vice-President of Legal and Regulatory Affairs
42.5:~\()~\1){)1 1l724(!, ooe
39
04/1IAPR. 14.20051 1:46PM56852DUBUQUE CITY MANAGERoM LEGAL
NO. 9753 P. 6/1312
(Form of COJPmitmenl Letter]
(MCC Iowa, LLC Letterhead]
April ~ 2005
Mediacom Cultural Affairoli Charitable
Foundation of Dubuque. Inc.
Dubuque) Iowa
Attn: President
Dear Sir or Madam:
MCC Iowa., LLC (the "MCC Iowa")) irrevocably pledges and promises to pay to
Mediacom Cultural Affairs Charitable Foundation of Dubuque, Inc. (the" MCC Iowa
Foundation") 0.25% ofMCC Iowa's Gross Revenues (as such tmn is defined in
Attachment A hereto), annually, in advance, commencing and continuing
for fifteen years, ending __ . . The first such f'ayrnent shall be
This pledge is to be im:vocable and a binding obligation upon Mec Iowa, its
sUCGussors and assigns. The City of Dubuque Iowa is an intended third party benefioiary
of the funding obligation set forth in this letter.
MCC lOW A~ LLC
By:
Name:
Title:
171439_2
*.~
iWiCUIG\..vi i i
April 14, 2005
Charles F. King
Senior Vice President
North Central Division
Mayor Terry Duggan and
Members of the City Council
City of Dubuque Iowa
Honorable Mayor Duggan and City Council Members,
Today begins a new era for telecommunications in The City of Dubuque.
The Infonnal Franchise Renewal Proposal you will receive this evening is an extension of
Mediacom's long term commitment to our communities across Iowa and a further demonstration of the
Company's desire to provide a state-of-the-art, affordable, universal communications system to the
residents of Dubuque.
In the short time since Mediacom became the steward of our City's cable television franchise, the
Company has made significant improvements to both the quantity and quality of communications
services available to business and residential customers. In addition to a complete technical upgrade of
the system, Mediacom has added channels, launched high speed Internet in Dubuque and has brought
the community into the 21 sl century with broadband business services, on-demand and high definition
television technology. Later this year, we will debut Mediacom Telephone Service.
The new franchise we have jointly negotiated will continue to ensure that Dubuque remains at the
forefront of the telecommunications revolution. Some of the highlights include:
· Construction of a fiber optic Institutional Communications Network to interconnect 76
municipal and educational locations.
· An extensive fiber optic network that will bring high bandwidth solutions to Dubuque's
business community.
· A full system upgrade to state-of-the-art 860 MHz hybrid fiber coaxial bandwidth.
· Continued funding for Dubuque's award-winning public, educational and government access
programming.
· Continued discounts for senior citizens.
· Mediacom's commitment to launch a limited basic television tier for customers who want to
receive only broadcast and community programming.
By necessity, this list only scratches the surface of the many features and benefits of our Proposal. I
encourage you to review the details and to feel free to contact me if you have any specific questions.
We are grateful for the opportunity to continue to serve the community and look forward to a long and
mutually beneficial relationship.
Sincerely,
Charles F. King
Senior Division Vice President
Mediacom Communications Corporation
Mediacom Communications Corporation
2195 Ingersoll Ave. · Des Moines, IA . 515-246-2201 . Fax 515-246-1655
Du~~
~~~
MEMORANDUM
April 13, 2005
MEMO TO: Michael C. Van Milligen, City Manager
FROM:
Merrill Crawford, Cable Franchise Administrator
SUBJECT: Mediacom Franchise Renewal Agreement
INTRODUCTION:
The purpose of this memorandum is to recommend that the City Council approve an
agreement to renew the cable services franchise of Mediacom Communications
Corporation, on terms negotiated by representatives of Mediacom and the City.
BACKGROUND:
On Thursday, April 7, representatives of Mediacom and the City met in a fifteen-hour
negotiating session to resolve remaining questions, issues and language to govern a
fifteen-year renewal of Mediacom's cable services franchise in Dubuque. This session
was the culmination of many such meetings, telephone conferences, document and
email exchanges among the parties, their attorneys and consultants.
The result is embodied in several interlocking documents offered for consideration of
the City Council and the public. These include:
. a proposed franchise agreement with an enabling ordinance,
. a separate cable right-of-way ordinance which would apply to Mediacom and to
any other cable franchisees and would form the foundation for other future right-
of-way applications, and
. a proposed renewal of Mediacom's existing lease to operate a technical system
hub facility on City property.
The proposed agreement and ordinances, and the interplay among them, are quite
complex legally, technically, and financially. The City's negotiators have continually
advocated the future cable-related needs and interests of many local constituencies,
including current and future cable subscribers, senior citizens, business and industry,
government and educational institutions, non-profit organizations, and others.
Ultimately, we have represented the Dubuque taxpayer as stewards of public property
granted to Mediacom for private commercial use.
We were guided in our negotiations by extensive research into changing technology and
community needs, through written citizen surveys, focus groups, public hearings, and
soliciting of local public opinion by mail, by email and by voice mail. At the same time,
we were directed and at times restricted by provisions of federal and state law
governing cable franchising and right-of-way regulation. The result is a strong,
workable, creative and quite detailed agreement worthy of the effort and time that was
invested in the process.
The principle Mediacom representatives in this long and complicated process have
included Bruce Gluckman, V. P. Legal and Regulatory Affairs, Charles King, Sr. Vice
President, Jon Koebrick, Director of Government Relations, North Central Division,
Scott Westerman, Regional Vice President for Eastern lowa/Western Illinois, Lee Ann
James, Sr. Manager of Government Affairs, and Kathy McMullen, Area Manager of
Dubuque. Also negotiating for Mediacom were attorneys Eric Breisach and Sharon
O'Malley Monahan of the Fleischman & Walsh law firm of Washington, D.C.
Representing the City were City Manager Michael Van Milligen, Corporation Counsel
Barry Lindahl, Cable Franchise Administrator Merrill Crawford, and Cable TV
Regulatory Commission Chair Charlie Ellis. Also negotiating on behalf of the City were
attorney Frederick Ellrod III of the Miller & Van Eaton law firm of Washington, D.C. and
technical consultant Richard Nielsen of CBG Communications, Inc. of St. Paul,
Minnesota. Other experts and stakeholders contributed to the research, analysis and
information gathering stages of the process.
RECOMMENDED ACTION:
The Recommended Action is that the City Council conduct a public hearing on the
proposed franchise renewal agreement, the hub site lease, and the proposed
ordinances, and thereafter adopt the ordinances.
cc: Barry Lindahl, Corporation Counsel
Randy Gehl, Public Information Officer
SUMMARY OF
MEDIACOM CABLE SERVICES FRANCHISE
PROPOSED RENEWAL AGREEMENT
April 13, 2005
1. Franchise Term
The proposed franchise term is fifteen (15) years. The franchise would be
for the delivery of cable services and would be nonexclusive.
2. Broadcast Basic Tier
While the size, contents, and pricing of a basic cable service package
cannot be a formal term of the agreement, Mediacom has represented to
the City that it will begin to offer a limited "broadcast basic" package with
21 channels. By federal law, these must include the broadcast TV
stations and the local PEG (Public, Educational and Government) access
channels.
3. Senior Citizen Discount
Mediacom will maintain the current ten percent (10%) Senior Citizen
discount on the 72-channel Family Cable tier, which is currently priced at
$45.50 for most subscribers, $40.95 for seniors. There will be no discount
on the price of the limited "broadcast basic" package. A subscriber (head
of household) who reaches the age of 65 and submits an application to
Mediacom with proof of age and proof of at least one other utility in their
name at that address will qualify for the Senior Citizen discount.
4. Technology Updating Fund
To keep the cable system as technologically current as possible,
Mediacom will contribute $300,000 per year in years one through twelve of
the franchise, (totaling $3.6 million), to an Updating Fund. This money
can only be spent by joint agreement of the City and Mediacom.
5. System Upgrade
Within twenty-four (24) months of the signing of the agreement, Mediacom
will upgrade the electronics in their Dubuque cable system to increase the
total bandwidth (capacity) from the current 750 MHz to 860 MHz.
Mediacom would expend all or part of the first four years of contributions
to the Updating Fund (above) on this upgrade.
6. Annexation
Consistent with the City's obligation to extend utilities, Mediacom would
have up to three years to provide cable television services throughout an
annexed area.
7. Digital vs. Analog
While this issue will be subject to significant FCC regulation, Mediacom
will be permitted to convert digital signals to analog to avoid making old
analog television sets obsolete. They will also strive to pass digital and
high-definition (HDTV) signals to the greatest extent possible to
accommodate new television receivers designed for these signals.
Eventually, the entire television signal spectrum will evolve to digital
technology.
8. Institutional Fiber Network (I-Net)
Within the first 18 months of the agreement, Mediacom will construct a
new "dark fiber" Institutional Network. The term, "dark fiber" means that
users, not Mediacom, provide and operate the end devices to light the
fiber. Separate from the subscriber network, this I-Net will interconnect 77
government, educational and not-for-profit facilities in Dubuque. The City
will be able to use the I-Net for any non-commercial purpose. Hospitals
and medical facility use of the I-Net will be restricted to community
emergency situations, and all other not-for-profit facilities, including
educational institutions, will be subject to restrictions on their use of the 1-
Net for communications outside the network.
The City will possess an indefeasible right to use the fiber optic plant
dedicated to the I-Net, and will also have the option to purchase the I-Net
from Mediacom on terms stipulated in the franchise agreement.
9. ICN Links
Mediacom will continue to maintain and operate all existing links to the
Iowa Communications Network (ICN) at no charge, and the new fiber I-Net
may be interconnected with the ICN, consistent with I-Net use
requirements.
10. Business Fiber Optic Infrastructure and Services
In addition to existing Mediacom fiber optic facilities, as the I-Net is
constructed, at least 6 additional new optical fibers will be installed along
its route for Mediacom to use in delivering commercial networking services
to business and industry. Mediacom will extend fiber in the right-of-way to
the curb within six months of a signed agreement by any business for a
large bandwidth service requiring fiber, at no additional cost to the
business. The monthly charge for the particular communication service
will be negotiated between that business and Mediacom.
11. Industrial Parks
In addition to any existing Mediacom fiber and the new business fibers to
be installed along with the I-Net, Mediacom will extend designated fiber
links to Dubuque Technology Park and Dubuque Industrial Center West
within two years of the agreement.
12. Free Service To Certain Facilities
Upon request of the City, Mediacom will provide one activated cable
service drop and Basic Cable Service to each school and each facility
owned or leased by the City at no charge. Each institution may further
distribute the service within the facility at its own expense for uses
consistent with the institution's mission.
Also, Mediacom will provide one 200-ft. (maximum) drop and maintain one
connection for Internet access to one computer terminal in each school or
library within the franchise area at no charge. Any additional costs will be
borne by the school or library for a time and materials charge.
13. Trenching
When either the City or Mediacom is trenching in the public right-of-way,
the other party would have the right to install its own conduit at the same
time. However, if the City ever establishes a municipal communications
utility that competes with Mediacom, the City would have to reimburse
Mediacom on a pro-rata basis for its portion of the trenching costs for any
cable the City previously installed in Mediacom trenches.
14. Importing Broadcast Television Signals
All broadcast television station signals will be imported into the Dubuque
system by optical fiber, resolving a 50-year-old reception problem.
15. Universal Service
Mediacom is required to extend residential-type cable service to all
businesses and residences within the City.
16. TDDITTY
Mediacom will direct hearing-impaired callers to Answer Iowa, a state-
wide service, for assistance. The company will clearly advertise the
availability of the Answer-Iowa service.
17. Emergency Alert
Unless preempted by the Federal Emergency Alert System, the City would
continue to have the ability to issue local alerts, subject to regulation by
the FCC.
18. Franchise Fee
Mediacom will pay a franchise fee of five percent (5%) of gross revenues
on cable services. If any action of law expands the base upon which
franchise fees may be collected, Mediacom will automatically expand its
computation and payment of franchise fees in Dubuque accordingly.
Mediacom will continue to treat the franchise fee on subscriber monthly
bills as a cost recovered from within the rates for services, and will not list
the franchise fee as an additional charge in the manner they list sales
taxes.
19. PEG (Public, Educational, Government) Access Channels
Mediacom will continue to provide on its subscriber network two public
access television channels, one shared educational access channel, and
one government access channel, as is currently offered. In addition,
Mediacom will provide a second educational access channel dedicated to
24-hour, 7 -day programming by the Dubuque Community Schools. On or
before December 31,2006, Mediacom will also make PEG Access
programming available to digital subscribers through its Video On Demand
service. At such future time as Mediacom carries local broadcast stations
in high definition (HDTV), any PEG Access channel will also be
transmitted in HDTV format upon request of the entity managing the
channel.
Throughout the term of the franchise, Mediacom will continue to provide
studio production facilities, production assistance, editing, scheduling and
playback, equipment maintenance, training, outreach, management and
administrative support for users of the public access channels at the same
level as was provided as of January 1, 2005.
20. Capital Grants for PEG Access Equipment and Facilities
Separate from the franchise fee, Mediacom will deposit 1.75% of gross
revenues in an interest-bearing account from which the City may draw for
capital support for PEG and I-Net use, in its sole discretion, provided that
the City will not use more than 50% for I-Net support.
21. Charitable Foundation
While not included in the franchise agreement, Mediacom will form a
charitable foundation to which the company will contribute .25% of cable
service gross revenues (estimated at $25,000 per year) to distribute in the
community. Initially, the fund will focus upon arts and cultural affairs. The
board of the foundation will include Mediacom employees and members of
the City's Cultural Affairs Advisory Commission.
22. Remedies
Instead of moving directly to termination of the franchise as the only
penalty for a violation of the franchise agreement, the new franchise
provides incremental steps and monetary penalties for different types of
violations.
23. Right-of-Way Ordinance
Mediacom's use of the rights of way will be the subject of a separate
ordinance based upon one devised by the Iowa Municipal Attorneys
Association, with Corporation Counsel Barry Lindahl participating.
Although this ordinance will initially apply only to Mediacom, the goal will
be to eventually apply the right of way ordinance to all utilities.
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O~;14!2005 13:01 FAX 8456852668
MEDIACOM LE81iL
flJ002/012
Mediaconv
Bruce Gluckman
Vice President of Legal & Regulatory Affairs
April 14,2005
VIA FACSIMILE (@S63-S89-4149)
AND OVERNIGHT MAlL
Michael Van Milligan
City Manager
City of Dubuque
City Hall
50 West 13lh Street
Dubuque, Iowa 52001
Re: Offer to Renew Cable Television Franchise Agreement Arrived at Through Informal
Negotiations
Dear Mike:
I understand that you are placing renewal of MCC Iowa, LLC's cable television franchise on the
City Council's April 18, 2005 meeting agenda. To that end, and in accordance with our
agreement, we provide the following:
I. Signed Franchise Agreement. Accompanying this letter is a signarure page ex.ecuted
on behalf of MCC Iowa, LLC. We will forward an original signature page along with the enrlre
Franchise Agreement via overnight delivery tonight. The Franchise Agreement that we have
signed is the documenr sent to you by Rick E1lrod via email at 10:06 AM EDT this morning.
Since the City Council has not yet acted on the Franchise Agreement, MCC Iowa, LLC's
submission of the signature page constitutes an offer which the City may accept. Our offer will
remain open until June I, 2005 at which time, if not previously accepted, it will become nun and
void unless we notify you in writing that we are extending the expiration date of the offer. Please
also be advised that we have worked closely with Attorney Lindahl to finalize Ex.hibit C (bonding
details) and that further mutually acceptable modifications to that schedule may be required by the
bond issuer. As soon as we have a response from the issuer, we will advise Mr. Lindahl.
2. Foundation Commitment. By way of this letter, MCC Iowa, LLC commits to
execution of the cOmnllrment letter substantially in the form of the sample letter accompanying
this letter ("Commitment Lerrec"). MCC Iowa, LLC will execute (be Commitment Letter ar the
same time that it formally executes Exhibit A to the Franchise Agreement (Acceptance of
Franchise by the Grantee), but in no case later than five business days following the City's
acceptance of MCC Iowa, LLC's renewal offer.
3. Third Street Lease. Also accompanying this letter is the form of the Third Street
Lease Agreement that we have negotiated with Mr. Lindahl. MCC Iowa, LLC would execute the
MCC Iowa. LLC
100 Crystal Run Road. Middlerown. NY 10941 . 845-695-26S0.Fu 845-695-2669
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Micha~1 Van Milligan
Page 2 or 2
final lease document at the same time J{ accepts the franchise and submits the foundation
commitment lener.
If you have any questions about these documents or any of the procedure that we have arranged
{}lCough the City's legal team, please contact me immediately. Please also confirm that this matter
has been placed on the April 18, 2005 City Council meeting agenda.
Thank you for your assistance.
Sincerely,
Cb~bu-
Bruce Gluckman
BG
cc: Barry Lindahl
Frederick Ellrod ITI
Eric Breisach
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(2) When any prOVlSlon of the Cable Ordinance is expressly mentioned
herein, such reference shall not be construed to limit the applicability of any other provision of
the Cable Ordinance or City law that may also govern the particular matter in question.
(i) Entire Agreement: This AgreementJ including all exhibits, constitutes the entire
agreement between the parties with respect to the subject matter hereof as of the date set forth
above. This Agreement supersedes any prior understandings, agreements, and communications
(oral or written).
0) Understanding and Consent: This Agreement is freely and voluntarily given by
each of the parties, without any duress or coercion, and after each party has consulted with its
counsel. Each party and its counsel have participated fully in the review and revision of this
Agreement, and any rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not apply in interpreting this Agreement. Each party hereto has carefully
and completely read all of the tenns and provisions of this Agreement, and acknowledges that, to
the best of its knowledge, each provision is lawful and enforceable. If the Grantee believes chat
the tenns of the franchise or any City law or regulation conflicts with any state or federal law or
regulation, the Grantee shall notify the City immediately upon learning ofthe conflict.
AGREED TO THIS
DAY OF
City of Dubuque, Iowa,
a municipal corporation ofIowa
By:
City Manager
ATTEST:
City Clerk
MCC lOW A, LLC,
a Delaware Limited Liability Company
By:a/~ bu- ~
Vice-President of Legal and Regulatory Affairs
425:1\()5\OOl01246.1.)(.K'
39
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MEOIACOM LEG,~L
141 005/012
(Form of Commitment Letter)
(MCC Iowa, LLC Letterhead]
April --' 2005
Mediacom Cultural Affairs Charitable
Foundation of Dubuque, Inc.
Dubuque, Iowa
Attn: President
Dear Sir or Madam:
MCC Iowa, LLC (the "MCC Iowa"), irrevocably pledges and promises to pay to
Mediacom Cultural Affairs Charitable Foundation of Dubuque, Inc. (the" MCC Iowa
Foundation") 0.25% ofMCC Iowa's Gross Revenues (as such term IS defined in
Attachment A hereto), annually, in advance, commencing and continuing
for fifteen years, ending . The first such pa)'lnent shall be
This pledge is to be ilTevocable and a binding obligation upon MCC Iowa, its
successors and assigns. The City of Dubuque Iowa is an intended third party beneficiary
of the funding obligation set forth in this letter.
MCC lOW A, LLC
By:
Name:
Title:
171439_2
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LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, lOW A
AND
MCC IOWA, LLC
I!2!m1
THIS AGREEMENT, made and entered into this _ day of ,
2005, by and between The City of Dubuque, Iowa, (Landlord), whose address,
for the purpose of this Lease. is City Hall, 1311\ and Central Avenue, Dubuque,
Iowa, and MCC Iowa LLC, a Delaware limited liability company (lenant), whose
address for the purpose of thIs Lease is _,
The parties agree as follows:
1. PREMISES AND TERM. Landlord Leases to Tenant the following real
estate, situated in Dubuque County,lowa:
That part of Lot 25 of Finley Home Addition shown on Exhibit A attac"'ed hereto
together with all improvements thereon, and all rights, easements and
appurtenances thereto belonging, for a term beginning on the _ day ot
, 2005, during the term of the Cable Franchise Agreement between
the City of Dubuque, Iowa and MCC Iowa, LLC dated the _ day of
. 2005. on the condition that Tenant performs as provided in this
Lease.
2. RENT. Tenant agrees to pay Landlord as rent $ 75.00 per year, in
advance commencing on the _ day of __, 2005, and on the _ day
of of each year thereafter, during the term of this Lease. Rent for
any partial month shall be prorated as additional rent. Tenant shall also pay all
real estate taxes payable for the term of the Lease.
All sums shall be paid at the address of Landlord, or at such other place
as Landtord may designate in writing. DelinQuent payments shall draw interest at
10% per annum.
3. POSSESSION. Tenant shall be entitled to possession on the first day
of the Lease term, and shall yield possession to Landlord at the termination of
this Lease.
4. USE. Tenant shall use the premises to house and ODerate eauiDmeot
that seNe as a headend for Tenant's cable television syStem servina the City of
Dubuaue and any of the Tenant's eauioment that may be used in coniunction
with the institutional network serving the Cit~ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . -1 ~' 0Il~ lor a table lel&vtsiOn ]
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5. CARE AND MAINTENANCE.
(a) Tenant takes the premises as is.
(b) Tenant shall maintain the premises in a reasonable safe, serviceable,
clean and presentable condition, and, shall make all repairs, replacements and
improvements to the premises, INCLUDING AL.L CHANGES, ALTERATIONS
OR ADDITIONS ORDERED BY ANY LAWFULLY CONSTITUTED
GOVERNMENT AUTHORITY DIRECTLY RELATED TO TENANTS USE OF
THE PREMISES. Tenant shall make no structural changes or alterations without
the prior written consent of Landlord. Tenant agrees to remove all snow and ice
and other obstructions from the sidewalk on or abutting the premises.
6. UTILITIES AND SERVICES. Tenant shall pay fOT all utilities and
services which may be used on the premises.
7. SURRENDER. Upon the termination of this Lease, Tenant will
surrender the premises to Landlord in good and clean condition, except for
ordinary wear and tear or damage without fault or liability of Tenant. Continued
possession, beyond the term of this Lease and the acceptance of rent by
Landlord shall constitute a month.to-rTlonth extension of this Lease.
6. ASSIGNMENT AND SU8LETTING. No assignment or subletting,
either voluntary or by operation ot law. shall be effective without the prior wimen
consent of Landlord, which consent shall not unreasonably be withheld.
9. INSURANCE.
A. PROPERTY INSURANCE. L.andlord and Tenant agree to insure their
respective real and personal property for the fun Insurable value. Such insurance
shall cover losses included in the Insurance Services Office Broad Form Causes
of loss (formerly fire and Landlord and extended coverage). To the extent
permitted by their policies the Landlord and Tenant waive all rights of recovery
against each other.
B. LIABILITY INSURANCE. Tenant shall at all times during the term of
this Lease maintain insurance as set forth in the attached Insurance Schedule as
such schedule may from time to time be amended by Landlord.
10. UABILITY FOR DAMAGE. Each party shall be liable to the other for
all damage to the property of the other negligently, recklessly or intentionally
caused by that party (or their agents, employees or invitees), except to the extent
the loss is insured and subrogation is waived under the owner's policy.
11. INDEMNITY. To the fullest extent permitted by law, Tenant shall
Indemnify and hOld harmless landlord from and against all claims, damages,
losses and expenses. including but not limited to attomeys' fees, arising out of or
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resulting from pertormance of Lease to the extent caused in whole or in part by
negligent acts or omissions of Tenant, or anyone directly or indirectly employed
by Tenant or anyone 10r whose acts Tenant may be liable, regardless of whether
or not such claim, damage, loss or expense is caused in part by Landlord.
12. DAMAGE. In the event of damage to the premises. so that Tenant is
unable to conduct business on the premises, this Lease may be terminated at the
option of either party. Such termination shall be effected by notice of one party to
the other within ten days after such notice; and both parties shall thereafter be
released from all future obligations hereunder.
13. MECHANICS' UENS. Neither Tenant. nor anyone claiming by,
through. or under Tenant, shall have the right to file any mechanic's lien against
the premises. Tenant shall give notice in advance to all contractors and
subcontractors who may furnish, or agree to furnish, any matenal, service or
labor for any improvement on the premises.
14. DEFAULT, NOTICE OF DEFAULT AND REMEDIES.
EVENTS OF DEFAULT
A. Each of the following shall constitute an event of default by Tenant: (1)
Failure to pay rent when due: (2) failure to observe or perform any duties.
Obligations, agreements, or conditions imposed on Tenant pursuant to the telms
of the Lease: (3) abandonment of the premises. "Abandonment" means the
Tenant has failed to engage in its usual and customary business activities on the
premises for more than fifteen (15) consecutive business days; (4) institution of
voluntary bankruptcy proceedings by Tenant; institution of involuntary bankruptcy
proceedings in which the Tenant thereafter is adjudged a bankruptcy;
assignment for the benefit of creditors of the interest of Tenant under this Lease
agreement: appointment of a receiver for the property or affairs of Tenant. where
the receivership is not vacated within ten (10) days after the appointment of the
receiver.
NOTICE OF DEFAULT
B. Landlord shall give Tenant a written notice specifying the default and
giving the Tenant ten (10) days in which to correct the default. If there is a
default (other than for nonpayment of a monetary obligation of Tenant, inCluding
rent) that cannot be remedied In ten (10) days by diligent efforts of the Tenant.
Tenant shall propose an additional periOd of time in which to remedy the default.
Consent to additional time shall not be unreasonably withheld by Landlord.
Landlord shall not be required to give Tenanr any more than three notices for the
same default within any 365 day period.
REMEDIES
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c. In the event Tenant has not remedied a default in a timely manner
following a Notice of DefaUlt, Landlord may proceed with all available remedies at
law or In equity, including but not limited to the following: (1) Tennination.
Landlord may declare this Lease to be terminated and shall give Tenant a written
notice of such termination. In the event of termination of this .Lease, Landlord
shall be entitled to prove claim for and obtain judgment against Tenant for the
balance of the rent agreed to be paid for the term herein. provided, plus all
expenses of Landlord in regaining possession of the premises .and the reletting
thereof, including attorney's fees and court costs, crediting ag8lnst such claim,
however, any amount obtained by reason of such reletting; (2) Forteiture. If a
default is not remedied in a timely manner, Landlord may then declare this Lease
to be forteited and shall give Tenant a written notice of such forfeiture, and may,
at the time, give Tenant the notice to quit provided for in Chapter 648 of the Code
of Iowa.
15. NOTICES AND DEMANDS. All notices shall be given to the parties
hereto at the addresses designated unless either party notifies the other, in
writing, of a different address. Without prejudice to any other method of notifying
a party in writing or making a demand or oUler communication, such notice shall
be considered given under the terms of this Lease when it is deposited in the
U.S. Mail, registered or certified, proper1y addressed. retum receipt requested,
and postage prepaid.
City of Dubuque
MCC IOWA, LLC
City Hall
50 West 13th Street
Dubuque IA 52001
3033 Asbury Road
P.O. Box 119
Dubuque IA 52001
Ann: City Manager
Attn: GMeral Manager
16. PROVISIONS BINDING. Each and every covenant and agreement
herein contained shall extend to and be binding upon the respective successors.
heirs, administrators, executors and assigns of the parties hereto.
17. TERMINATION OF PRIOR LEASE. The prior lease between the
parties is hereby terminated.
18. TERMINATION. Landlord may terminate this Lease upon ninety (90)
days' written notice to Tenant is Tenant's use of the leased premises conflicts in
Landlord's determination with the operation of the water facilities on the adjacent
property.
CITY OF DUBUQUE. IOWA
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By
Terrance M. Duggan, Mayor
Attest:
Jeanne F. SchneIder, City Clerk
MCC IOWA, lLC
By
Its
STATE OF IOWA
DUBUQUE COUNTY
SS.
On this _ of . 2005, before me, a Notary
Public in and for the State of Iowa, in and for said county, personally
appeared _ , to me personally known,
who acknowledged that he/she is the of
MCC Iowa, lLC, that he/she is authorized to execute the foregoing
document on behalf of MCC Iowa, LLC, and that the execution of this
instNment is hislher and its voluntary act and deed on behalf of MCC
Iowa, LLC
Notary Public, State of Iowa
STATE OF IOWA
: ss.
DUBUQUt; COUNTY
On this day of , 2005. before me, the
undersigned. a Notary Public in and for the State of Iowa, personally appeared
Terrance M. Duggan and Jeanne F. Schneider, to me personally known, who,
being by me duly sworn, did say that they are the Mayor and City Clerk
respectively of the City of Dubuque, Iowa, a municipal corporation; that the seal
affixed to the foregoing instrument is the corporate seal of the corporation, and that
O~/14!2005 18:02 FAX 8456952668
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the instrument was signed and sealed on behalf of the cotpotation, by authority of
its City Council, as contained in Resolution No. _passed by the City Council on
the _ day of , 2005; and Terrance M. Duggan and Jeanne F.
Schneider acknowledged the execution of the instrument to be their vOluntary act
and deed and the voluntary act and deed of the corporation, by it voluntarily
executed.
Notary Public, State of Iowa
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EXHIBIT A
See anached plat
'"
Prepared by Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563583-4113
RESOLUTION NO. 161-05
INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY OWNED BY THE
CITY OF DUBUQUE BY LEASE BETWEEN THE CITY OF DUBUQUE, IOWA AND
MCC IOWA, LLC
WHEREAS, the City of Dubuque, Iowa (City) owns the real property described as
Lot 25 of Finley Home Addition in the City of Dubuque, Iowa; and
WHEREAS, City and MCC IOWA, LLC (Mediacom) have negotiated a Lease
Agreement for a part of Lot 25 of Finley Home Addition, a copy of which Lease
Agreement is on file at the office of the City Clerk, City Hall, 13th and Central Avenue,
Dubuque, Iowa; and
WHEREAS, the City Council believes it is in the best interests of the City of
Dubuque to approve the Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the foregoing-
described real property by Lease Agreement between City and Mediacom.
Section 2. The City Clerk is hereby authorized and directed to cause this
Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on the City's intent to dispose of the foregoing-described real property, to
be held on the 2nd day of May, 2005, at 6:30 o'clock p.m. at the public library
auditorium, 11 th & Locust, Dubuque, Iowa.
Passed, approved and adopted this 18th day of April, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
MCC IOWA, LLC
THIS AGREEMENT, made and entered into this _ day of ,
2005, by and between The City of Dubuque, Iowa, (Landlord), whose address,
for the purpose of this Lease, is City Hall, 13th and Central Avenue, Dubuque,
Iowa, and MCC Iowa LLC, a Delaware limited liability company (Tenant), whose
address for the purpose of this Lease is
The parties agree as follows:
1. PREMISES AND TERM. Landlord Leases to Tenant the following real
estate, situated in Dubuque County, Iowa:
That part of Lot 25 of Finley Home Addition shown on Exhibit A attached hereto
together with all improvements thereon, and all rights, easements and
appurtenances thereto belonging, for a term beginning on the _ day of
, 2005, during the term of the Cable Franchise Agreement between
the City of Dubuque, Iowa and MCC Iowa, LLC dated the _ day of
, 2005, on the condition that Tenant performs as provided in this
Lease.
2. RENT. Tenant agrees to pay Landlord as rent $ 75.00 per year, in
advance commencing on the _ day of , 2005, and on the _ day
of of each year thereafter, during the term of this Lease. Rent for
any partial month shall be prorated as additional rent. Tenant shall also pay all
real estate taxes payable for the term of the Lease.
All sums shall be paid at the address of Landlord, or at such other place
as Landlord may designate in writing. Delinquent payments shall draw interest at
10% per annum.
3. POSSESSION. Tenant shall be entitled to possession on the first day
of the Lease term, and shall yield possession to Landlord at the termination of
this Lease.
4. USE. Tenant shall use the premises to house and operate equipment
that serve as a head end for Tenant's cable television system serving the City of
Dubuque and any of the Tenant's equipment that may be used in conjunction
with the institutional network serving the City.
5. CARE AND MAINTENANCE.
(a) Tenant takes the premises as is.
(b) Tenant shall maintain the premises in a reasonable safe, serviceable,
clean and presentable condition, and, shall make all repairs, replacements and
improvements to the premises, INCLUDING ALL CHANGES, ALTERATIONS
OR ADDITIONS ORDERED BY ANY LAWFULLY CONSTITUTED
GOVERNMENT AUTHORITY DIRECTLY RELATED TO TENANT'S USE OF
THE PREMISES. Tenant shall make no structural changes or alterations without
the prior written consent of Landlord. Tenant agrees to remove all snow and ice
and other obstructions from the sidewalk on or abutting the premises.
6. UTILITIES AND SERVICES. Tenant shall pay for all utilities and
services which may be used on the premises.
7. SURRENDER. Upon the termination of this Lease, Tenant will
surrender the premises to Landlord in good and clean condition, except for
ordinary wear and tear or damage without fault or liability of Tenant. Continued
possession, beyond the term of this Lease and the acceptance of rent by
Landlord shall constitute a month-to-month extension of this Lease.
8. ASSIGNMENT AND SUBLETTING. No assignment or subletting,
either voluntary or by operation of law, shall be effective without the prior written
consent of Landlord, which consent shall not unreasonably be withheld.
9. INSURANCE.
A. PROPERTY INSURANCE. Landlord and Tenant agree to insure their
respective real and personal property for the full insurable value. Such insurance
shall cover losses included in the Insurance Services Office Broad Form Causes
of Loss (formerly fire and Landlord and extended coverage ). To the extent
permitted by their policies the Landlord and Tenant waive all rights of recovery
against each other.
B. LIABILITY INSURANCE. Tenant shall at all times during the term of
this Lease maintain insurance as set forth in the attached Insurance Schedule as
such schedule may from time to time be amended by Landlord.
10. LIABILITY FOR DAMAGE. Each party shall be liable to the other for
all damage to the property of the other negligently, recklessly or intentionally
caused by that party (or their agents, employees or invitees), except to the extent
the loss is insured and subrogation is waived under the owner's policy.
11. INDEMNITY. To the fullest extent permitted by law, Tenant shall
indemnify and hold harmless Landlord from and against all claims, damages,
losses and expenses, including but not limited to attorneys' fees, arising out of or
resulting from performance of Lease to the extent caused in whole or in part by
negligent acts or omissions of Tenant, or anyone directly or indirectly employed
by Tenant or anyone for whose acts Tenant may be liable, regardless of whether
or not such claim, damage, loss or expense is caused in part by Landlord.
12. DAMAGE. In the event of damage to the premises, so that Tenant is
unable to conduct business on the premises, this Lease may be terminated at the
option of either party. Such termination shall be effected by notice of one party to
the other within ten days after such notice; and both parties shall thereafter be
released from all future obligations hereunder.
13. MECHANICS' LIENS. Neither Tenant, nor anyone claiming by,
through, or under Tenant, shall have the right to file any mechanic's lien against
the premises. Tenant shall give notice in advance to all contractors and
subcontractors who may furnish, or agree to furnish, any material, service or
labor for any improvement on the premises.
14. DEFAULT, NOTICE OF DEFAULT AND REMEDIES.
EVENTS OF DEFAULT
A. Each of the following shall constitute an event of default by Tenant: (1)
Failure to pay rent when due; (2) failure to observe or perform any duties,
obligations, agreements, or conditions imposed on Tenant pursuant to the terms
of the Lease; (3) abandonment of the premises. "Abandonment" means the
Tenant has failed to engage in its usual and customary business activities on the
premises for more than fifteen (15) consecutive business days; (4) institution of
voluntary bankruptcy proceedings by Tenant; institution of involuntary bankruptcy
proceedings in which the Tenant thereafter is adjudged a bankruptcy;
assignment for the benefit of creditors of the interest of Tenant under this Lease
agreement; appointment of a receiver for the property or affairs of Tenant, where
the receivership is not vacated within ten (10) days after the appointment of the
receiver.
NOTICE OF DEFAULT
B. Landlord shall give Tenant a written notice specifying the default and
giving the Tenant ten (10) days in which to correct the default. If there is a
default (other than for nonpayment of a monetary obligation of Tenant, including
rent) that cannot be remedied in ten (10) days by diligent efforts of the Tenant,
Tenant shall propose an additional period of time in which to remedy the default.
Consent to additional time shall not be unreasonably withheld by Landlord.
Landlord shall not be required to give Tenant any more than three notices for the
same default within any 365 day period.
REMEDIES
C. In the event Tenant has not remedied a default in a timely manner
following a Notice of Default, Landlord may proceed with all available remedies at
law or in equity, including but not limited to the following: (1) Termination.
Landlord may declare this Lease to be terminated and shall give Tenant a written
notice of such termination. In the event of termination of this Lease, Landlord
shall be entitled to prove claim for and obtain judgment against Tenant for the
balance of the rent agreed to be paid for the term herein provided, plus all
expenses of Landlord in regaining possession of the premises and the reletting
thereof, including attorney's fees and court costs, crediting against such claim,
however, any amount obtained by reason of such reletting; (2) Forfeiture. If a
default is not remedied in a timely manner, Landlord may then declare this Lease
to be forfeited and shall give Tenant a written notice of such forfeiture, and may,
at the time, give Tenant the notice to quit provided for in Chapter 648 of the Code
of Iowa.
15. NOTICES AND DEMANDS. All notices shall be given to the parties
hereto at the addresses designated unless either party notifies the other, in
writing, of a different address. Without prejudice to any other method of notifying
a party in writing or making a demand or other communication, such notice shall
be considered given under the terms of this Lease when it is deposited in the
U.S. Mail, registered or certified, properly addressed, return receipt requested,
and postage prepaid.
City of Dubuque
MCC IOWA, LLC
City Hall
50 West 13th Street
Dubuque IA 52001
3033 Asbury Road
P.O. Box 119
Dubuque IA 52001
Attn: City Manager
Attn: General Manager
16. PROVISIONS BINDING. Each and every covenant and agreement
herein contained shall extend to and be binding upon the respective successors,
heirs, administrators, executors and assigns of the parties hereto.
17. TERMINATION OF PRIOR LEASE. The prior lease between the
parties is hereby terminated.
18. TERMINATION. Landlord may terminate this Lease upon ninety (90)
days' written notice to Tenant is Tenant's use of the leased premises conflicts in
Landlord's determination with the operation of the water facilities on the adjacent
property.
CITY OF DUBUQUE, IOWA
By
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
MCC IOWA, LLC
By
Its
STATE OF IOWA
ss.
DUBUQUE COUNTY
On this of , 2005, before me, a Notary
Public in and for the State of Iowa, in and for said county, personally
appeared , to me personally known,
who acknowledged that he/she is the of
MCC Iowa, LLC, that he/she is authorized to execute the foregoing
document on behalf of MCC Iowa, LLC, and that the execution of this
instrument is his/her and its voluntary act and deed on behalf of MCC
Iowa, LLC
Notary Public, State of Iowa
STATE OF IOWA
: ss.
DUBUQUE COUNTY
On this day of , 2005, before me, the
undersigned, a Notary Public in and for the State of Iowa, personally appeared
Terrance M. Duggan and Jeanne F. Schneider, to me personally known, who,
being by me duly sworn, did say that they are the Mayor and City Clerk
respectively of the City of Dubuque, Iowa, a municipal corporation; that the seal
affixed to the foregoing instrument is the corporate seal of the corporation, and that
the instrument was signed and sealed on behalf of the corporation, by authority of
its City Council, as contained in Resolution No. _passed by the City Council on
the _ day of , 2005; and Terrance M. Duggan and Jeanne F.
Schneider acknowledged the execution of the instrument to be their voluntary act
and deed and the voluntary act and deed of the corporation, by it voluntarily
executed.
Notary Public, State of Iowa
EXHIBIT A
See attached plat
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY
OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer
authorized to do business in Iowa. All insurers shall have a rating of A of
better in the current A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day
advance notice of cancellation to the City of Dubuque if cancellation is
prior to the expiration date. This endorsement supersedes the standard
cancellation statement on the Certificate of Insurance.
3. Tenant shall furnish a Certificate of Insurance to the City of Dubuque,
Iowa for the coverage required in Paragraph 6 below. Such certificates
shall include copies of the following policy endorsements:
a) Thirty day notice of cancellation to the City of Dubuque.
b) Commercial General Liability policy is primary and non-contributing.
c) Commercial General Liability additional insured endorsement.
d) Governmental Immunity Endorsements.
e) Waiver of recovery under workers compensation.
4. Each certificate shall be submitted to the contracting department of the
City of Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of
these requirements by the City of Dubuque. Failure to obtain or maintain
the required insurance shall be considered a material breach of this
agreement.
6. Tenant shall be required to carry the following minimum coverage/limits or
greater if required by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit
Products-Completed Operations Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (any one occurrence)
Medical Payments
$2,000,000
$1,000,000
$1,000,000
$1,000,000
$ 50,000
$ 5,000
This coverage shall be written on an occurrence, not claims made,
form per location. All deviations or exclusions from the standard
ISO commercial general liability form CG 0001 or Businessowners
form BP 0002 shall be clearly identified.
Governmental Immunity Endorsement identical or equivalent to
form attached.
An additional insured endorsement identical or equivalent to ISO
Form CG 2026 or CG 2011 and include as additional insureds:
"The City of Dubuque, including all its elected and appointed
officials, all its employees and volunteers, all its boards,
commissions and/or authorities and their board members,
employees, and volunteers."
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
$100,000 each accident
$100,000 each employee-
disease
$500,000 policy limit-disease
Policy shall include an endorsement waiving right of
recovery against City of Dubuque.
c) UMBRELLA/EXCESS LIABILITY $5,000,000
POLICY NUMBER
LIABILITY
COMMERCIAL GENERAL
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT
CAREFULL Y.
ADDITIONAL INSURED - DESIGNATED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name of Person Or Organization:
The City of Dubuque, including all its elected and appointed officials, all its employees and
volunteers, all its boards, commissions and/or authorities and their board members, employees,
and volunteers.
(If no entry appears above, information required to complete this endorsement will be shown in
the Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or
organization shown in the Schedule as an insured but only with respect to liability arising out of
your operations or premises owned by or rented to you.
CODvrioht. Insurance Services Office. Inc. 1994
26 11 85
CG20
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurance carrier expressly
agrees and states that the purchase of this policy and the including of the City
of Dubuque, Iowa as an Additional Insured does not waive any of the
defenses of governmental immunity available to the City of Dubuque, Iowa
under Code of Iowa Section 670.4 as it is now exists and as it may be
amended from time to time.
2. Claims CoveraQe. The insurance carrier further agrees that this policy of
insurance shall cover only those claims not subject to the defense of
governmental immunity under the Code of Iowa Section 670.4 as it now exists
and as it may be amended from time to time. Those claims not subject to
Code of Iowa Section 670.4 shall be covered by the terms and conditions of
this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be
responsible for asserting any defense of governmental immunity, and may do
so at any time and shall do so upon the timely written request of the
insurance carrier.
4. Non-Denial of CoveraQe. The insurance carrier shall not deny coverage under
this policy and the insurance carrier shall not deny any of the rights and
benefits accruing to the City of Dubuque, Iowa under this policy for reasons of
governmental immunity unless and until a court of competent jurisdiction has
ruled in favor of the defense(s) of governmental immunity asserted by the City
of Dubuque, Iowa.
No Other ChanQe in Policy. The above preservation of governmental immunities
shall not otherwise change or alter the coverage available under the policy.
Prepared by Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
RESOLUTION NO. 161-05
INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY OWNED BY THE
CITY OF DUBUQUE BY LEASE BETWEEN THE CITY OF DUBUQUE, IOWA AND
MCC IOWA, LLC
WHEREAS, the City of Dubuque, Iowa (City) owns the real property described as
Lot 25 of Finley Home Addition in the City of Dubuque, Iowa; and
WHEREAS, City and MCC IOWA, LLC (Mediacom) have negotiated a Lease
Agreement for a part of Lot 25 of Finley Home Addition, a copy of which Lease
Agreement is on file at the office of the City Clerk, City Hall, 13th and Central Avenue,
Dubuque, Iowa; and
WHEREAS, the City Council believes it is in the best interests of the City of
Dubuque to approve the Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the foregoing-
described real property by Lease Agreement between City and Mediacom.
Section 2. The City Clerk is hereby authorized and directed to cause this
Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on the City's intent to dispose of the foregoing-described real property, to
be held on the 2nd day of May, 2005, at 6:30 o'clock p.m. at the public library
auditorium, 11 th & Locust, Dubuque, Iowa.
Passed, approved and adopted this 18th day of April ,2005.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
Jeanne F. Schneider, City Clerk
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
MCC IOWA, LLC
THIS AGREEMENT, made and entered into this _ day of
2005, by and between The City of Dubuque, Iowa, (Landlord), whose address,
for the purpose of this Lease, is City Hall, 13th and Central Avenue, Dubuque,
Iowa, and MCC Iowa LLC, a Delaware limited liability company (Tenant), whose
address for the purpose of this Lease is
The parties agree as follows:
1. PREMISES AND TERM. Landlord Leases to Tenant the following real
estate, situated in Dubuque County, Iowa:
That part of Lot 25 of Finley Home Addition shown on Exhibit A attached hereto
together with all improvements thereon, and all rights, easements and
appurtenances thereto belonging, for a term beginning on the _ day of
, 2005, during the term of the Cable Franchise Agreement between
the City of Dubuque, Iowa and MCC Iowa, LLC dated the _ day of
, 2005, on the condition that Tenant performs as provided in this
Lease.
2. RENT. Tenant agrees to pay Landlord as rent $ 75.00 per year, in
advance commencing on the _ day of , 2005, and on the _ day
of of each year thereafter, during the term of this Lease. Rent for
any partial month shall be prorated as additional rent. Tenant shall also pay all
real estate taxes payable for the term of the Lease.
All sums shall be paid at the address of Landlord, or at such other place
as Landlord may designate in writing. Delinquent payments shall draw interest at
10% per annum.
3. POSSESSION. Tenant shall be entitled to possession on the first day
of the Lease term, and shall yield possession to Landlord at the termination of
this Lease.
4. USE. Tenant shall use the premises to house and operate equipment
that serve as a headend for Tenant's cable television system serving the City of
Dubuque and any of the Tenant's equipment that may be used in conjunction
with the institutional network serving the City.
5. CARE AND MAINTENANCE.
(a) Tenant takes the premises as is.
(b) Tenant shall maintain the premises in a reasonable safe, serviceable,
clean and presentable condition, and, shall make all repairs, replacements and
improvements to the premises, INCLUDING ALL CHANGES, ALTERATIONS
OR ADDITIONS ORDERED BY ANY LAWFULLY CONSTITUTED
GOVERNMENT AUTHORITY DIRECTLY RELATED TO TENANT'S USE OF
THE PREMISES. Tenant shall make no structural changes or alterations without
the prior written consent of Landlord. Tenant agrees to remove all snow and ice
and other obstructions from the sidewalk on or abutting the premises.
6. UTILITIES AND SERVICES. Tenant shall pay for all utilities and
services which may be used on the premises.
7. SURRENDER. Upon the termination of this Lease, Tenant will
surrender the premises to Landlord in good and clean condition, except for
ordinary wear and tear or damage without fault or liability of Tenant. Continued
possession, beyond the term of this Lease and the acceptance of rent by
Landlord shall constitute a month-to-month extension of this Lease.
8. ASSIGNMENT AND SUBLETTING. No assignment or subletting,
either voluntary or by operation of law, shall be effective without the prior written
consent of Landlord, which consent shall not unreasonably be withheld.
9. INSURANCE.
A. PROPERTY INSURANCE. Landlord and Tenant agree to insure their
respective real and personal property for the full insurable value. Such insurance
shall cover losses included in the Insurance Services Office Broad Form Causes
of Loss (formerly fire and Landlord and extended coverage). To the extent
permitted by their policies the Landlord and Tenant waive all rights of recovery
against each other.
B. LIABILITY INSURANCE. Tenant shall at all times during the term of
this Lease maintain insurance as set forth in the attached Insurance Schedule as
such schedule may from time to time be amended by Landlord.
10. LIABILITY FOR DAMAGE. Each party shall be liable to the other for
all damage to the property of the other negligently, recklessly or intentionally
caused by that party (or their agents, employees or invitees), except to the extent
the loss is insured and subrogation is waived under the owner's policy.
11. INDEMNITY. To the fullest extent permitted by law, Tenant shall
indemnify and hold harmless Landlord from and against all claims, damages,
losses and expenses, including but not limited to attorneys' fees, arising out of or
resulting from performance of Lease to the extent caused in whole or in part by
negligent acts or omissions of Tenant, or anyone directly or indirectly employed
by Tenant or anyone for whose acts Tenant may be liable, regardless of whether
or not such claim, damage, loss or expense is caused in part by Landlord.
12. DAMAGE. In the event of damage to the premises, so that Tenant is
unable to conduct business on the premises, this Lease may be terminated at the
option of either party. Such termination shall be effected by notice of one party to
the other within ten days after such notice; and both parties shall thereafter be
released from all future obligations hereunder.
13. MECHANICS' LIENS. Neither Tenant, nor anyone claiming by,
through, or under Tenant, shall have the right to file any mechanic's lien against
the premises. Tenant shall give notice in advance to all contractors and
subcontractors who may furnish, or agree to furnish, any material, service or
labor for any improvement on the premises.
14. DEFAULT, NOTICE OF DEFAULT AND REMEDIES.
EVENTS OF DEFAULT
A. Each of the following shall constitute an event of default by Tenant: (1)
Failure to pay rent when due; (2) failure to observe or perform any duties,
obligations, agreements, or conditions imposed on Tenant pursuant to the terms
of the Lease; (3) abandonment of the premises. "Abandonment" means the
Tenant has failed to engage in its usual and customary business activities on the
premises for more than fifteen (15) consecutive business days; (4) institution of
voluntary bankruptcy proceedings by Tenant; institution of involuntary bankruptcy
proceedings in which the Tenant thereafter is adjudged a bankruptcy;
assignment for the benefit of creditors of the interest of Tenant under this Lease
agreement; appointment of a receiver for the property or affairs of Tenant, where
the receivership is not vacated within ten (10) days after the appointment of the
receiver.
NOTICE OF DEFAULT
B. Landlord shall give Tenant a written notice specifying the default and
giving the Tenant ten (10) days in which to correct the default. If there is a
default (other than for nonpayment of a monetary obligation of Tenant, including
rent) that cannot be remedied in ten (10) days by diligent efforts of the Tenant,
Tenant shall propose an additional period of time in which to remedy the default.
Consent to additional time shall not be unreasonably withheld by Landlord.
Landlord shall not be required to give Tenant any more than three notices for the
same default within any 365 day period.
REMEDIES
C. In the event Tenant has not remedied a default in a timely manner
following a Notice of Default, Landlord may proceed with all available remedies at
law or in equity, including but not limited to the following: (1) Termination.
Landlord may declare this Lease to be terminated and shall give Tenant a written
notice of such termination. In the event of termination of this Lease, Landlord
shall be entitled to prove claim for and obtain judgment against Tenant for the
balance of the rent agreed to be paid for the term herein provided, plus all
expenses of Landlord in regaining possession of the premises and the reletting
thereof, including attorney's fees and court costs, crediting against such claim,
however, any amount obtained by reason of such reletting; (2) Forfeiture. If a
default is not remedied in a timely manner, Landlord may then declare this Lease
to be forfeited and shall give Tenant a written notice of such forfeiture, and may,
at the time, give Tenant the notice to quit provided for in Chapter 648 of the Code
of Iowa.
15. NOTICES AND DEMANDS. All notices shall be given to the parties
hereto at the addresses designated unless either party notifies the other, in
writing, of a different address. Without prejudice to any other method of notifying
a party in writing or making a demand or other communication, such notice shall
be considered given under the terms of this Lease when it is deposited in the
U.S. Mail, registered or certified, properly addressed, return receipt requested,
and postage prepaid.
City of Dubuque
MCC IOWA, LLC
City Hall
50 West 13th Street
Dubuque IA 52001
3033 Asbury Road
P.O. Box 119
Dubuque IA 52001
Attn: City Manager
Attn: General Manager
16. PROVISIONS BINDING. Each and every covenant and agreement
herein contained shall extend to and be binding upon the respective successors,
heirs, administrators, executors and assigns of the parties hereto.
17. TERMINATION OF PRIOR LEASE. The prior lease between the
parties is hereby terminated.
18. TERMINATION. Landlord may terminate this Lease upon ninety (90)
days' written notice to Tenant is Tenant's use of the leased premises conflicts in
Landlord's determination with the operation of the water facilities on the adjacent
property.
CITY OF DUBUQUE, IOWA
By
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
MCC IOWA, LLC
By
Its
STATE OF IOWA
ss.
DUBUQUE COUNTY
On this of , 2005, before me, a Notary
Public in and for the State of Iowa, in and for said county, personally
appeared , to me personally known,
who acknowledged that he/she is the of
MCC Iowa, LLC, that he/she is authorized to execute the foregoing
document on behalf of MCC Iowa, LLC, and that the execution of this
instrument is his/her and its voluntary act and deed on behalf of MCC
Iowa, LLC
Notary Public, State of Iowa
STATE OF IOWA
: ss.
DUBUQUE COUNTY
On this day of , 2005, before me, the
undersigned, a Notary Public in and for the State of Iowa, personally appeared
Terrance M. Duggan and Jeanne F. Schneider, to me personally known, who,
being by me duly sworn, did say that they are the Mayor and City Clerk
respectively of the City of Dubuque, Iowa, a municipal corporation; that the seal
affixed to the foregoing instrument is the corporate seal of the corporation, and that
the instrument was signed and sealed on behalf of the corporation, by authority of
its City Council, as contained in Resolution No. _passed by the City Council on
the _ day of , 2005; and Terrance M. Duggan and Jeanne F.
Schneider acknowledged the execution of the instrument to be their voluntary act
and deed and the voluntary act and deed of the corporation, by it voluntarily
executed.
Notary Public, State of Iowa
EXHIBIT A
See attached plat
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY
OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer
authorized to do business in Iowa. All insurers shall have a rating of A of
better in the current A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day
advance notice of cancellation to the City of Dubuque if cancellation is
prior to the expiration date. This endorsement supersedes the standard
cancellation statement on the Certificate of Insurance.
3. Tenant shall furnish a Certificate of Insurance to the City of Dubuque,
Iowa for the coverage required in Paragraph 6 below. Such certificates
shall include copies of the following policy endorsements:
a) Thirty day notice of cancellation to the City of Dubuque.
b) Commercial General Liability policy is primary and non-contributing.
c) Commercial General Liability additional insured endorsement.
d) Governmental Immunity Endorsements.
e) Waiver of recovery under workers compensation.
4. Each certificate shall be submitted to the contracting department of the
City of Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of
these requirements by the City of Dubuque. Failure to obtain or maintain
the required insurance shall be considered a material breach of this
agreement.
6. Tenant shall be required to carry the following minimum coverage/limits or
greater if required by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit
Products-Completed Operations Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (anyone occurrence)
Medical Payments
$2,000,000
$1,000,000
$1,000,000
$1,000,000
$ 50,000
$ 5,000
This coverage shall be written on an occurrence, not claims made,
form per location. All deviations or exclusions from the standard
ISO commercial general liability form CG 0001 or Businessowners
form BP 0002 shall be clearly identified.
Governmental Immunity Endorsement identical or equivalent to
form attached.
An additional insured endorsement identical or equivalent to ISO
Form CG 2026 or CG 2011 and include as additional insureds:
"The City of Dubuque, including all its elected and appointed
officials, all its employees and volunteers, all its boards,
commissions and/or authorities and their board members,
employees, and volunteers."
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
$100,000 each accident
$100,000 each employee-
disease
$500,000 policy limit-disease
Policy shall include an endorsement waiving right of
recovery against City of Dubuque.
c) UMBRELLA/EXCESS LIABILITY $5,000,000
POLICY NUMBER
LIABILITY
COMMERCIAL GENERAL
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT
CAREFULL Y.
ADDITIONAL INSURED - DESIGNATED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name of Person Or Organization:
The City of Dubuque, including all its elected and appointed officials, all its employees and
volunteers, all its boards, commissions and/or authorities and their board members, employees,
and volunteers.
(If no entry appears above, information required to complete this endorsement will be shown in
the Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or
organization shown in the Schedule as an insured but only with respect to liability arising out of
your operations or premises owned by or rented to you.
CODvriaht. Insurance Services Office. Inc. 1994
26 11 85
CG20
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmentallmmunitv. The insurance carrier expressly
agrees and states that the purchase of this policy and the including of the City
of Dubuque, Iowa as an Additional Insured does not waive any of the
defenses of governmental immunity available to the City of Dubuque, Iowa
under Code of Iowa Section 670.4 as it is now exists and as it may be
amended from time to time.
2. Claims Coveraqe. The insurance carrier further agrees that this policy of
insurance shall cover only those claims not subject to the defense of
governmental immunity under the Code of Iowa Section 670.4 as it now exists
and as it may be amended from time to time. Those claims not subject to
Code of Iowa Section 670.4 shall be covered by the terms and conditions of
this insurance policy.
3. Assertion of Government Immunitv. The City of Dubuque, Iowa shall be
responsible for asserting any defense of governmental immunity, and may do
so at any time and shall do so upon the timely written request of the
insurance carrier.
4. Non-Denial of Coveraqe. The insurance carrier shall not deny coverage under
this policy and the insurance carrier shall not deny any of the rights and
benefits accruing to the City of Dubuque, Iowa under this policy for reasons of
governmental immunity unless and until a court of competent jurisdiction has
ruled in favor of the defense(s) of governmental immunity asserted by the City
of Dubuque, Iowa.
No Other Chanqe in Policv. The above preservation of governmental immunities
shall not otherwise change or alter the coverage available under the policy.
Preparer: Barry A. Lindahl. Esq. Address: Suite 330 Harbor View Place 300 Main Street
Dubuque, IA 52001 Telephone: (563) 583-4113
RESOLUTION NO. 160-05
SETTING A PUBLIC HEARING ON A PROPOSED CABLE TELEVISION
SYSTEM FRANCHISE AGREEMENT BETWEEN THE CITY OF DUBUQUE,
IOWA AND MCC IOWA, LLC GRANTING A NONEXCLUSIVE FRANCHISE TO
MCC IOWA, LLC TO CONSTRUCT, OPERATE, MAINTAIN, UPDATE AND
RECONSTRUCT A CABLE TELEVISION SYSTEM IN THE CITY OF
DUBUQUE
WHEREAS, MCC Iowa, LlC (Mediacom) has asked the City to renew
Mediacom's nonexclusive franchise (the Prior Franchise) to construct, operate,
maintain, update and reconstruct a cable television sy~tem (the Cable System) in
the City; and
WHEREAS, the construction, installation, maintenance and operation of
such a system involves the occupation of and placement of private commercial
facilities in the Public Rights-of-Way within the City; and
WHEREAS, the City has reviewed Mediacom's performance under the
Prior Franchise and the quality of service during the Prior Franchise term, has
identified the future cable-related needs and interests of the City and its citizens,
has considered the financial, technical and legal qualifications of Mediacom, and
has determined whether Mediacom's plans for constructing, operating and
maintaining its Cable System are adequate, in a full public proceeding affording
due process to all parties; and
WHEREAS, the City has relied on Mediacom's representations and has
considered the information that Mediacom has presented to it; and
WHEREAS, based on Mediacom's representations and information, and in
response to its request for renewal, the City Council has tentatively determined
that, subject to the provisions of the Cable Franchise Agreement, and the terms
and conditions set forth herein, the grant of a new nonexclusive franchise to
Mediacom, to supersede the Prior Franchise, on the terms and conditions of the
Cable Franchise Agreement and subject to applicable law, is consistent with the
public interest.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCil OF THE
CITY OF DUBUQUE, IOWA AS FOllOWS:
1. The City Clerk is hereby authorized and directed to cause this Resolution
and a notice to be published as prescribed by Iowa Code Section 364.3 of a public
hearing on the City Council's intent to approve the Cable Franchise Agreement
between the City of Dubuque Iowa and MCC Iowa, LLC granting a nonexclusive
franchise to MCC Iowa, LLC to construct, operate, maintain, update and
reconstruct a cable television system in the City of Dubuque, to be held on the
2nd day of May ,2005, at 6:30 o'clock p.m. at the public library auditorium,
11th & Locust, Dubuque, Iowa.
2. It is further directed that copies of the Cable Franchise Agreement shall be
placed on file with the City Clerk for public inspection
Passed, approved and adopted this 18th day of April, 2005.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
Preparer: Barry A. Lindahl. Esa. Address: Suite 330 Harbor View Place 300 Main Street
Dubuaue.IA 52001 Telephone: (563) 583-4113
ORDINANCE NO.
APPROVING A CABLE FRANCHISE AGREEMENT BETWEEN THE CITY OF
DUBUQUE, IOWA AND MCC IOWA, LLC GRANTING A NONEXCLUSIVE
FRANCHISE TO MCC IOWA, LLC TO CONSTRUCT, OPERATE, MAINTAIN,
UPDATE AND RECONSTRUCT A CABLE TELEVISION SYSTEM
WHEREAS, MCC Iowa, LLC (Mediacom) has asked the City to renew
Mediacom's nonexclusive franchise (the Prior Franchise) to construct, operate,
maintain, update and reconstruct a cable services delivery system (the Cable
System) in the City; and
WHEREAS, the construction, installation, maintenance and operation of
such a system involves the occupation of and placement of private commercial
facilities in the Public Rights-of-Way within the City; and
WHEREAS, the City has reviewed Mediacom's performance under the
Prior Franchise and the quality of service during the Prior Franchise term, has
identified the future cable-related needs and interests of the City and its citizens,
has considered the financial, technical and legal qualifications of Mediacom, and
has determined whether Mediacom's plans for constructing, operating and
maintaining its Cable System are adequate, in a full public proceeding affording
due process to all parties; and
WHEREAS, the City has relied on Mediacom's representations and has
considered the information that Mediacom has presented to it; and
WHEREAS, based on Mediacom's representations and information, and in
response to its request for renewal, the City Council has determined that, subject
to the provisions of the Cable Franchise Agreement, and the terms and
conditions set forth herein, the grant of a new nonexclusive franchise to
Mediacom, to supersede the Prior Franchise, on the terms and conditions of the
Cable Franchise Agreement and subject to applicable law, is consistent with the
public interest;
NOW, THEREFORE, IN CONSIDERATION OF THE CITY'S GRANT OF
A NEW FRANCHISE TO MEDIACOM, MEDIACOM'S PROMISE TO PROVIDE
CABLE SERVICE TO RESIDENTS OF THE CITY PURSUANT TO AND
CONSISTENT WITH THE CABLE FRANCHISE AGREEMENT, ITS
FRANCHISE, AND THE TERMS AND CONDITIONS SET FORTH HEREIN;
AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
THE ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, BE IT
ORDAINED AS FOLLOWS:
Section 1. The Cable Franchise Agreement attached hereto and
incorporated herein is hereby approved.
Section 2. This Ordinance shall take effect upon publication as provided
bylaw.
Passed, approved and adopted this _ day of
,2005.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
A CABLE FRANCHISE AGREEMENT
BETWEEN CITY OF DUBUQUE, lOW A
AND MCC lOW A, LLC
,2005
CABLE FRANCmSE AGREEMENT
CITY OF DUBUQUE, lOW A
Pa2e
1. DEFINITIONS. ...................................................................................... 2
(a) Cable Ordinance or Ordinance........................................................... 2
(b) Cable Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(c) Franchise Agreement or Agreement..................................................... 2
(d) Franchise Area .............................................................................. 2
(e) Grantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
(t) Gross Revenues .... ..... ...... ............... ............ ............................. ......2
(g) Inflation Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
(h) Institutional Network or Network........................................................ 3
(i) Lateral........................................................................................ 3
(j) 0 3
utage ........................................................................................
(k) PEG ........................................................................................... 3
(1) Plant Mile .................................................................................... 3
(m) Prior Franchise...... .......... ..... ... .... .............. ........ ............. ...... .........3
(n) Subscriber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
(0) User ........................................................................................... 3
2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS............................. 3
(a) Grant of Authority. .......... ........ ........ ........ .......... ....... ... .... ... ....... .....3
(b) Area Served. . .... ............ ..... .............. .... ....... ..... ...... ............. .... ......4
(c) Term.......................................................................................... 4
(d) Grant Not Exclusive... ..... .............. ............. ... .......... .... ........ .... ........4
(e) Compliance With Applicable Law....................................................... 4
(t) Franchise Agreement Subject to Exercise of Police Powers........................ 4
(g) Approval and Effective Date........................ ............... ....... .......... ... ...4
(h) Effect of Acceptance: . ............................... .... ........... ..... ........ ..........4
(i) Claims Related to Prior Franchise....................................................... 5
(j) Waivers....................................................................................... 5
(k) No Recourse ........ ... ... ............................. ............. ..... .......... ..... .....6
3. TRANSFERS......................................................................................... 6
4. PROVISION OF CABLE SERVICE............................................................. 6
(a) Line Extension Requirements............................................................. 6
(b) Continuity of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
5. SYSTEM FACILITIES, EQUIPMENT AND SERVICES................................... 8
(a) System Characteristics..................................................................... 8
(b) System Functionality ....................................................................... 9
11
(c) System Upgrade............................. ....... ..... .............. ..... .... ....... .....10
(d) System Infrastructure for Services to Business.......................................1O
(e) Technical Standards ................. .... .... ................... ..... ......... .......... ...10
(f) Interconnection............................................................................ .10
(g) Emergency Alert System............... .,. ..... .................. ..... ....... ... ... ..... .10
(h) Coordination of Trenching............... ...................... ......... ... ....... ... ... .11
(i) Updating.................................................................................... .11
(j) Senior Discount........................................................................... .12
6. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE........................................................................ .12
(a) Access Channels ............................... ... ......................... ... ......... ....12
(b) Capital Grant for Access Equipment and Facilities .... .................. .......... ..14
(c) Public Access.............................................................................. .14
(d) Return Feed From Facilities... .... .... ....... ... ... ...... ......... ......... ... ........ ..15
( e) Management of Channels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(f) Editorial Control ........................................................................... 16
(g) Cable Service to Certain Facilities..................................................... .16
(h) Institutional Network..................................................................... .17
(i) Costs and Payments Not Franchise Fees....... .. .. . .. .. .. .. .. .. .. .. .. .. . .. .. .. . .. . .. .. 29
7. FRANCHISE FEE.................................................................................. 30
(a) Payment to City................. ...... ....... ........ ........... .... ..... ...... ..... ... ....30
(b) Final Payment .............................................................................. 30
(c) Supporting Information ................................................................... 30
(d) Late Payments. ..... ................ ... .... ........ ..... ....... ...... ... .......... ...... ....31
(e) Audit......................................................................................... 31
8. LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(a) Indemnification by the Grantee ...... ............ .................. ....... ....... ... .....31
(b) Indemnification by the City .............................................................. 31
(c) Indemnification Procedures ... ... ................ ..... ... .... ...... ......... ........ .....32
(d) Respondeat Superior.. ..... .......... ... ... ........ ................ ........... ........ .....32
9. PERFORMANCE GUARANTEES AND REMEDIES.......... .......... ...... .......... ..32
(a) Performance Bond.. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 32
(b) Letter of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(c) Rights Cumulative........................................................................ .33
(d) Procedures for Remedying Violations.......... ....................... ...... ...... .....33
(e) Security Fund Procedures.......... ...... ............. ..... ........... ........ ... ... ... ..35
(f) Remedies.................................................................................... 36
(g) Liquidated Damages....................................................................... 36
(h) Shortening, Revocation, or Termination of Franchise ..............................38
10. MISCELLANEOUS PROVISIONS............................................................. 39
iii
(a) Binding Acceptance......... ........... ..... ...... ........ ... ... ............ ..... ...... ... .39
(b) Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
(c) Grantee Bears Its Own Costs............................................................ 39
(d) Force Majeure.... .... ......... ........ .......... ......... ........... ....... ..... ... ... ... ..39
( e) Governing Law............................................................................. 40
(f) Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
(g) Time of the Essence ....................................................................... 40
(h) Captions and References... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
(i) Entire Agreement......................... ... ................ ... ..... ......... ....... ... ...41
0) Understanding and Consent..............................................................41
IV
CABLE TELEVISION FRANCHISE AGREEMENT
BETWEEN CITY OF DUBUQUE, lOW A
AND MCC lOW A, LLC
THIS CABLE FRANCHISE AGREEMENT (the "Franchise Agreement") is entered
into by and between City of Dubuque, Iowa ("City"), a municipal corporation and MCC Iowa,
LLC, a Delaware Limited Liability Company ("Mediacom").
WHEREAS, Mediacom has asked the City to renew Mediacom's nonexclusive
franchise (the "Prior Franchise") to construct, operate, maintain, update and reconstruct a
cable services delivery system in the City; and
WHEREAS, the construction, installation, maintenance and operation of such a system
involves the occupation of and placement of private commercial facilities in the Public Rights-
of-Way within the City; and
WHEREAS, the City has reviewed Mediacom's performance under the Prior Franchise
and the quality of service during the Prior Franchise term, has identified the future cable-
related needs and interests of the City and its citizens, has considered the [mancial, technical
and legal qualifications of Mediacom, and has determined whether Mediacom's plans for
constructing, operating and maintaining its Cable System are adequate, in a full public
proceeding affording due process to all parties; and
WHEREAS, the City has relied on Mediacom' s representations and has considered the
information that Mediacom has presented to it; and
WHEREAS, based on Mediacom' s representations and information, and in response to
its request for renewal, the Council has determined that, subject to the provisions of the Cable
Ordinance, and the terms and conditions set forth herein, the grant of a new nonexclusive
franchise to Mediacom, to supersede the Prior Franchise, on the terms and conditions herein
and subject to applicable law, is consistent with the public interest;
NOW, THEREFORE, in consideration of the City's grant of a new franchise to
Mediacom; Mediacom' s promise to provide Cable Service to residents of the City pursuant to
and consistent with the Cable Ordinance, its Franchise, and the terms and conditions set forth
herein; and other good and valuable consideration, the receipt and the adequacy of which is
hereby acknowledged,
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS.
Except as otherwise provided herein, the definitions and word usage set forth in the
Cable Ordinance are incorporated herein and shall apply in this Agreement. In addition, the
following definitions shall apply:
(a) Cable Ordinance or Ordinance: The City of Dubuque Cable Right-of-Way
Ordinance, as it may be amended from time to time.
(b) Cable Service: (1) the one way transmission to subscribers of (i) video
programming, or (ii) other programming service, and (2) subscriber interaction, if any, which
is required for the selection or use of such video programming or other programming service.
(c) Franchise Agreement or Agreement: This contract and any amendments,
exhibits or appendices hereto.
(d) Franchise Area: The entire present territorial limits of the City and any area
annexed thereto during the term of the Franchise.
(e) Grantee: MCC Iowa, LLC, a Delaware Limited Liability Company.
if) Gross Revenues: Any and all cash, credits, property or other consideration of
any kind or nature derived from the operation of the Grantee's Cable System by the Grantee,
its Affiliates, or any other entity that is a cable operator of the System to provide Cable
Services, except where such revenues must be excluded pursuant to federal or state law. This
definition shall be construed so as to include all gross revenues to the maximum extent
permitted by federal and state law, except to the extent specifically excluded in Section 1(t)(2),
and encompasses revenues that may develop in the future, whether or not anticipated. If a
statutory change in federal law allows the City to receive greater franchise fees than under
federal law as of the Effective Date, that change shall automatically be reflected in the
franchise fees due under this Agreement, beginning as of the effective date of the change in
federal law; provided that the City imposes the same fee requirement upon any other similarly
situated multichannel video provider over which the City has jurisdiction to impose such fees.
(1) Gross Revenues include, by way of illustration and not limitation, fees
for any cable service; installation, disconnection, reconnection, and change-in-service fees;
leased channel fees; late fees and administrative fees; fees, payments, launch fees, marketing
support, or other payments or consideration received from programmers for carriage of
programming on the System; revenues from rentals or sales of Converters or other equipment;
studio rental, production equipment, and personnel fees; advertising revenues (including any
commissions received by a third party); barter; revenues from program guides; and revenues
from home shopping and bank-at-home channels.
(2) Gross Revenues shall not include any taxes on services furnished by the
Grantee which are imposed directly on any Subscriber or user by the state, City, or other
governmental unit and which are collected by the Grantee on behalf of said governmental unit.
2
A Franchise fee is not such a tax, and franchise fee expenses may not be deducted In
determining the amount of the fee due to the City.
(g) Inflation Index: CPI-U All Urban Consumers U.S. City Average All Items.
(h) Institutional Network or Network: This term shall have the meaning given to it
in Section 6(h)(1)(E) herein.
(i) Lateral: The segment constructed from the I-Net fiber backbone to the
designated Demarcation Point at an I-Net site.
(j)
herein.
Outage: This term shall have the meaning given to it in Section 6(h)(2)(I)
(k)
PEG: Public, educational, and governmental.
(I) Plant Mile: The length in miles of strand-bearing cable or underground cable as
measured on the street or easement from pole to pole or pedestal to pedestal.
(m) Prior Franchise: Cable Services Delivery Franchise, Appendix B of the Code
of Ordinances of the City of Dubuque Iowa, Ordinance No. 42-81 (passed July 29, 1981).
(n) Subscriber: The City or any Person who is lawfully receiving, for any purpose
or reason, any Cable Service via a Cable System, whether or not a fee is paid for such service.
(0) User: A person or organization using a channel or equipment and facilities for
purposes of producing or transmitting material, as contrasted with the receipt thereof in the
capacity of a subscriber.
2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS
(a) Grant of Authority: Upon passage by the Council of an ordinance granting a
franchise to the Grantee, the Grantee will be granted a franchise subject to the terms and
conditions of this Franchise Agreement, and subject to the Cable Ordinance and all other
applicable law. This Franchise shall grant authority for the Grantee to use the City's Public
Rights-of-Way for the provision of Cable Service. Other services may be provided pursuant to
Section 6(h) herein. No privilege or power of eminent domain is bestowed by this grant; nor
by this Agreement. This Agreement does not confer any rights other than as expressly
provided herein. It neither authorizes the Grantee to use the Public Rights-of-Way for
purposes of providing any service other than Cable Service, nor prohibits the Grantee from
doing so. The franchise will be for the period specified in Section 2( c) below, during which
time the Grantee will receive the right and obligation to construct, reconstruct, operate and
maintain a cable television system within the public rights-of-way in the City for the sole
purpose of providing cable service. If for any reason whatsoever the Council does not pass
such an ordinance, this Franchise Agreement will be of no further force and effect.
3
(b)
herein.
Area Served. The Franchise is for the Franchise Area, as that term is defined
(2) The Grantee shall offer service to all areas located within the City limits
as they existed on the Effective Date of this Agreement. It must extend service to persons in
the City, including residents located in areas which may be annexed in the future, in
accordance with the provisions of this Agreement, unless this requirement is waived in writing
by the City.
(c) Term: The Franchise and this Franchise Agreement shall extend through June
30, 2020, unless the Franchise is earlier revoked or its term shortened as provided herein or in
the Cable Ordinance.
(d) Grant Not Exclusive: The Franchise and the right it grants to use and occupy
the Public Rights-of-Way shall not be exclusive, and the City reserves the right to grant other
franchises for similar uses or for other uses of the Public Rights-of-Way, or any portions
thereof, to any Person, or to make any such use itself, at any time, with or without a franchise,
subject to applicable state law, as such law may be subsequently amended from time to time.
(e) Compliance With Applicable Law: The Grantee shall comply with the Cable
Ordinance and all other applicable law. The Grantee accepts and agrees to all of the provisions
of the Cable Ordinance, and the obligations imposed upon it thereby, to the same degree and
extent as if each and every such provision were repeated herein, and irrespective of whether
any such provisions be so repeated.
if) Franchise Agreement Subject to Exercise of Police Powers: All rights and
privileges granted herein are subject to the police powers of the City and its rights under
applicable laws and regulations to exercise its governmental powers to their full extent and to
regulate the Grantee and the construction, operation and maintenance of the Grantee's Cable
System, including, but not limited to, the right to adopt, amend, and enforce ordinances and
regulations as the City shall find necessary in the exercise of its police powers, the right to
adopt and enforce applicable zoning, building, permitting and safety ordinances and
regulations, the right to adopt and enforce ordinances and regulations relating to equal
employment opportunities, and the right to adopt and enforce ordinances and regulations
containing right-of-way, telecommunications, utility and cable television consumer protection
and service standards and rate regulation provisions, except to the extent that an exercise of
such powers would impair the obligations of this Agreement as prohibited by Article I, Section
10, clause 1 of the U.S. Constitution.
(g) Approval and Effective Date: This Franchise Agreement shall become effective
upon publication of the ordinance approving this Franchise Agreement (the "Effective Date").
(h) Effect of Acceptance:
By accepting the Franchise and executing this Franchise Agreement, the Grantee:
4
(1) accepts and agrees to comply with each provision of the Cable Ordinance
and this Agreement, and all applicable federal, state, and local laws and regulations;
(2) acknowledges and accepts the City's legal right to grant the Franchise, to
enter this Franchise Agreement, and to enact and enforce ordinances and regulations related to
the Franchise;
(3) agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable law, and that it will not raise any claim to the contrary,
or allege in any claim or proceeding by the Grantee against the City that any provision,
condition or term of the Franchise, the Ordinance or this Franchise Agreement at the time of
the acceptance of the Franchise was unlawful, unreasonable or arbitrary, or that at the time of
the acceptance of the Franchise any such provision, condition or term was void or that the City
had no power or authority to make or enforce any such provision, condition or term; and
(4) agrees that it will not oppose intervention by the City in any proceeding
affecting the Grantee's Cable System.
(i) Claims Related to Prior Franchise: As of the effective date of the Franchise,
the Prior Franchise shall be of no further force and effect, and as of that date, the Grantee
surrenders any rights it had thereunder. The Grantee shall remain liable for payments of all
franchise fees owed under the Prior Franchise, and the grant of the Franchise shall have no
effect on the Grantee's duty under the Prior Franchise to indemnify or insure the City against
acts and omissions occurring during the period that the Prior Franchise was in effect, including
losses or damages resulting from any failure to construct, install or maintain its cable system
properly.
(j) Waivers
(1) On petition by the Grantee, the City may in its discretion waive any
provision of this Agreement, if such waiver is in the public interest.
(2) The failure of the City on one or more occasions to exercise a right or to
require compliance or performance under this Franchise Agreement, the Cable Ordinance or
any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of
compliance or performance by the City, nor to excuse the Grantee from complying or
performing, unless such right or such compliance or performance has been specifically waived
in writing.
(3) Waiver of a breach of this Agreement shall not be a waiver of any other
breach, whether similar to or different from that waived. Neither the granting of the Franchise,
nor any provision herein, nor any action by the City hereunder shall constitute a waiver of or a
bar to the exercise of any governmental right or power of the City, including without limitation
the right of eminent domain.
5
(k) No Recourse: Without limiting such immunities as the City or other Persons
may have under applicable law, a Grantee will have no monetary recourse against the City or
its officials, boards, commissions, agents or employees for any loss, costs, expense or damage
arising out of (i) the construction, operation or repair of its Cable System, including in cases
where the act or omission giving rise to the same was required under Applicable Law or
directed by the City; or (ii) the acts or omissions of the City or any other entity using the
Public Rights-of-Way or other property under the City's control, except acts and omissions of
the City that involve gross negligence or intentional misconduct by the City.
3. TRANSFERS
The Grantee shall comply with all requirements of the Ordinance and applicable law
regarding transfers.
4. PROVISION OF CABLE SERVICE
(a) Line Extension Requirements
(1) Existing boundaries. Within the City's boundaries as they existed on the
Effective Date, the Grantee shall extend its Cable System to provide Cable Service (A) to any
dwelling unit or (B) to any school or facility owned or leased by the City, upon request,
without charging more than the standard installation charges. The Grantee shall extend its
Cable System within such existing boundaries to provide Cable Service upon request to any
business requiring a standard installation. In the event that to provide Cable Service to any
business would require other than a standard business installation, as defined herein, beyond
the public rights-of-way (for example, due to the need to cross a large parking lot), the Grantee
shall provide each such installation to each standard point of demarcation outside the building
at the standard installation charge for each connected demarcation point if the owner of such
business grants legal access and provides a conduit or other necessary physical pathway for
Grantee's facilities (for example, by providing conduit space enabling the Grantee to cross a
large parking lot without extensive trenching).
(2) For purposes of subsection 4(a)(1), a "Standard Business Installation"
shall mean a service drop of no more than one hundred twenty-five (125) feet, with no boring
longer than required to pass underneath driveways a maximum of 25 feet wide or sidewalks a
maximum of five feet wide, that does not require disruption of pavement or similar surfaces,
providing the standard signal strength for residences, using standard RG-6 residential drop
cable.
(3)
this Agreement:
New areas. In any area annexed by the City after the Effective Date of
6
(A) From the date of annexation until three years after that date, the
Grantee shall extend its Cable System as necessary to provide
Cable Service to every school and government facility and every
residential and non-residential subscriber where the average
potential subscriber density is at least thirty (30) potential
subscribers per linear mile of distribution network, or where (for
residential dwelling units) the dwelling unit is within two hundred
(200) feet of any existing portion of the Cable System, unless the
Grantee demonstrates to the City's satisfaction that extraordinary
circumstances, including but not limited to the existence of a
wireline competitor in such annexed area that would, subsequent
to the annexation, offer a substantially equivalent level of service
(including but not limited to PEG access and emergency override
capability provided by Grantee), justify a complete, partial,
temporary, and/or conditional waiver of this requirement, which
waiver shall not unreasonably be withheld or delayed.
(B) Beginning three years after the date of annexation, the Grantee
shall be subject to the same standard as applied within existing
boundaries pursuant to Section 4(a)(1).
(C) Nothing in this Section 4(a) shall be construed to prevent the
Grantee from extending service to all units in an annexed area at
an earlier date.
(b) Continuity of Service
(1) The Grantee shall ensure that all Subscribers receive continuous
uninterrupted service. At the City's request, the Grantee shall operate its System for a
temporary period (the "Transition Period") following the termination, sale, or Transfer of its
Franchise as necessary to maintain service to Subscribers, and shall cooperate with the City to
assure an orderly transition from it to another Grantee. The Transition Period shall be no
longer than the reasonable period required to ensure that Cable Service will be available to
Subscribers, and shall not be longer than thirty-six (36) months, unless extended by the City
for good cause. During the Transition Period, the Grantee will continue to be obligated to
comply with the terms and conditions of this Agreement and applicable laws and regulations.
(2) If the Grantee abandons its System during the Franchise term, or fails to
operate its System in accordance with the terms of this Agreement during any Transition
Period, the City, at its option, may operate the System, designate another entity to operate the
System temporarily until the Grantee restores service under conditions acceptable to the City or
until the Franchise is revoked and a new Grantee selected by the City is providing service, or
obtain an injunction requiring the Grantee to continue operations. If the City is required to
operate or designate another entity to operate the Cable System, the Grantee shall reimburse
7
the City or its designee for all reasonable costs and damages incurred that are in excess of the
revenues from the Cable System.
(3) The Grantee shall be deemed to have abandoned its system if the Grantee
fails to provide Cable Service in accordance with its Franchise over any portion of the
Franchise Area for ninety-six (96) consecutive hours, unless the City authorizes a longer
interruption of service or the failure is due to force majeure as characterized herein, or the
Grantee, for any period, willfully and without cause refuses to provide Cable Service in
accordance with its Franchise over a substantial portion of the Franchise Area.
5. SYSTEM FACILITIES, EQUIPMENT AND SERVICES
(a) System Characteristics: The Grantee's Cable System shall, at all times during
the Franchise term, meet or exceed the following requirements:
(1) Industry-accepted Equipment. The System shall use equipment generally
used in high-quality, reliable, modern systems of similar design, including but not limited to
backup power supplies capable of providing power to the system for not less than three hours
according to manufacturer's reasonable specifications, in view of local conditions, in the event
of an electrical outage. The obligation to provide such backup power supplies shall apply to
the Grantee's headend, each fiber optic node, and any other location(s) within the System
necessary to maintain service to Subscribers who have power for not less than three hours in
the event of an electrical outage affecting the System. In addition, the System's electronics
shall be capable of passing through the signals received at the headend without substantial
alteration or deterioration (thus, for example, the System shall include components so that a
signal received at the headend in color may be received by a Subscriber in color and a stereo
signal in stereo). The Grantee shall comply with all applicable laws and regulations concerning
System compatibility with Subscribers' television receivers and/or recording devices. Nothing
herein shall prevent Grantee from converting digital signals other than high-definition signals
for transmission to subscribers in an analog format. The City may require Grantee to add
equipment and facilities to its System as necessary to comply with this paragraph, and may
establish reasonable deadlines for completion of that work.
(2) The Grantee shall comply with all FCC regulations regarding
scrambling or other encryption of signals.
(3) No Deterioration to Access Signals. The System shall be so constructed
and operated that there is no significant deterioration in the quality of PEG access signals or
leased access signals, either upstream or downstream, as compared with any other channel on
the System. Deterioration refers to any signal problem, including but not limited to ghost
images and other interference and distortions.
(4) Consumer Equipment For Lease or Sale. Subject to applicable law or
regulation, as part of the System, the Grantee shall offer every Subscriber the opportunity to
8
use equipment that allow Subscribers to view a program on one channel while recording a
program on another channel.
(5) Parental Control. The Grantee shall ensure that means are available to
enable Subscribers to completely block out audio and video on any undesired channels on the
System.
(6) Program Security. The System shall include equipment so that any pay-
per-view programming can only be activated by the positive action of a subscriber using, for
example, a private identification number or other individual selection procedure.
(7) Service to Persons with Disabilities. The System shall transmit closed
captions for all programming that includes a closed caption signal. For hearing impaired
Subscribers, the Grantee shall provide information concerning the cost and availability of
equipment to facilitate the reception of services for the hearing impaired. In addition, the
Grantee must have means available, and a publicly listed telephone number for such means,
that will allow hearing- or speech-impaired persons to contact the Grantee.
(b) System Functionality
(1) The Cable System shall have the following characteristics:
(A) bandwidth of at least 750 MHz on all active components and at
least 1 GHz for all passive components;
(B) no more than 500 homes on the average, and no more than 700
homes in any case, served from any fiber node, with sufficient
fibers to each node so that each 500-home node could readily be
converted to a node of 150 or 200 subscribers;
(C) no more than four active components in a cascade from any node;
and
(D) bidirectional activation with a clean return path permlttmg a
current minimum average of approximately 512 Kbps upstream.
(2) The Grantee shall implement status monitoring throughout the Cable
System that will continuously monitor key parameters of all set -top and other devices in the
Cable System including all hubs and nodes. The status monitoring system shall alert the
Grantee when and where a power supply has lost commercial power and is running on back-up
power.
(3) The System shall provide two-way capability.
(4) No later than June 30, 2006, the Grantee shall ensure that all broadcast
television signals carried on the Cable System are transmitted to the headend over direct fiber
9
connections either from the broadcast origination point, or from an over-the-air reception point
located in such a way that the signal is not at any time significantly degraded from its level of
quality at the broadcast origination point.
(c) System Upgrade: Within twenty-four (24) months after the Effective Date, the
Grantee shall complete a system upgrade to a bandwidth of at least 860 MHz ("System
Upgrade").
(d) System Infrastructure for Services to Business
(1) Within two years after the Effective Date of this Agreement, the Grantee
shall install at least six fibers for the Grantee's own use in offering services to businesses, over
and above any fibers installed for the I-Net or for the offering of services to residential
Subscribers, to the edge of the Dubuque Industrial Center West and the Dubuque Technology
Park.
(2) Wherever the Grantee installs fiber in the I-Net pursuant to this Section
6(h)(2), but excluding I-Net Laterals, the Grantee shall also install, at its own expense, at least
six fibers for the Grantee's own use in offering services to businesses, over and above any
fibers installed for the I-Net or for the offering of services to residential Subscribers.
(3) Within six months (excluding any delay necessitated by weather
conditions) after a customer signs an agreement with the Grantee on reasonable commercial
terms requiring a direct fiber connection to the customer's premises, the Grantee shall
construct any necessary fiber line extension in the public rights-of-way at no additional cost to
the customer.
(e) Technical Standards: The Cable System shall meet or exceed the technical
standards set forth in 47 C.F.R. ~ 76.601 and any other applicable technical standards.
(j) Interconnection: The City may use the I-Net, or facilities supplied by the City,
to interconnect with other communications systems, provided that such use of the I-Net is
consistent with this Agreement.
(g) Emergency Alert System
(1) The Grantee shall install and maintain for use by the City an Emergency
Alert System ("EAS") meeting all applicable requirements of federal law.
(2) The Grantee's System shall include the capability for the City to access
the EAS using non-location-specific technology, without the assistance of the Grantee, in the
event of emergency or for reasonable tests, to override at least the audio on all channels on the
Grantee's System, to the extent that such override does not interfere with the federally
mandated EAS, applicable state or local plans or with broadcaster preemption of override of
individual signals. When negotiating carriage of broadcast signals, the Grantee shall use
reasonable commercial efforts to avoid such broadcaster preemption of such messages. Where
10
the Grantee is not able to avoid such preemption, the Grantee shall provide written notice to
the City identifying the broadcast signal.
(3) The Grantee shall cooperate with the City in any test of the EAS.
(4) Except to the extent expressly prohibited by law, the City will hold the
Grantee, its officers, employees and assigns harmless from any claims arising out of the City's
use of the EAS.
(h) Coordination of Trenching
(1) Grantee shall provide the City with reasonable advance notice of any
plans to install underground facilities in the Grantee's trenches in the City's public rights-of-
way, so that the City may at its discretion install conduit and/or fiber of its own at the same
time. The City shall provide Grantee with reasonable advance notice of any planned street
openings in the City's public rights-of-way, so that Grantee may at its discretion install
facilities of its own at the same time.
(2) A party installing conduit and/or fiber pursuant to section 5(h)(1) shall
not be required to pay a share of the trenching cost. However, if the City either (A)
establishes a communications utility or its equivalent, or (B) competes directly or indirectly,
including in any joint venture or other cooperative agreement, in providing third parties with
services also provided by Mediacom, then the City shall pay half of Mediacom's trenching
costs where the City has installed conduit and/or fiber in Mediacom's trenches pursuant to
section 5(h)(I) at any time from the Effective Date forward and shall continue to pay for future
installations throughout the term of this Franchise Agreement, and Mediacom shall pay half of
the City's trenching costs where Mediacom has installed conduit and/or fiber in the City's
trenches pursuant to section 5(h)(1) at any time from the Effective Date forward and shall
continue to pay for future installations throughout the term of this Franchise Agreement. The
costs paid for such trenching shall be $0.94 per foot for simple trenching, $3.15 per foot for
pneumatic bore, and $8.00 for directional bore, each adjusted according to the Inflation Index.
(3) Grantee and the City shall work together to develop routine procedures
by which this coordination can be accomplished.
(i) Updating
(1) No later than October first of each year beginning with the first year and
ending after the twelfth year of the franchise term, Grantee shall provide $300,000 for the
purpose of updating the Cable System. Such monies shall not be used for operational, repair,
maintenance, replacement, or line extension purposes, but shall be used to improve the
technology and capabilities of the existing System.
(2) The City and Grantee shall jointly determine how to most appropriately
expend such monies for updating the Cable System. Updating monies shall be expended as
agreed by the City and Grantee; provided, however, that this Agreement shall constitute the
11
City's approval for the Grantee to expend all or part of the first four years' installments of the
updating monies as specified in section 5(i)(1) to the extent necessary to cover the actual
reasonable costs of the System Upgrade carried out pursuant to section 5(c).
(3) Updating monies may be expended as such become available, may be
advanced on account for expenditure, or may be invested for later expenditure along with all
interest earned thereon, as may be agreed by the City and Grantee. An agreement on any of
these three uses shall satisfy the requirement for agreement stated in Section 5(i)(2).
(4) At the beginning of the fifth year of the Term, and at the beginning of
each subsequent year, after reviewing Grantee's financial reports, the City may, at its sole
discretion, require the Grantee to secure all or any part of the updating fund for the following
year by instrument(s) that may be drawn on by the City for the purposes specified in section
5(i)(1) pursuant to the procedures specified in section 9(e) and consistent with the conditions
specified in section 5(i)(2). If the City exercises this option, the Grantee shall determine
whether such instrument(s) shall be (i) an escrow, (ii) an irrevocable letter of credit, or (iii)
any combination thereof.
(5) If any updating monies remain unexpended as of fifteen years after the
Effective Date of this agreement, such funds shall be distributed equally among the then basic
Subscribers on their statements for the following month.
(j) Senior Discount: The Grantee shall offer eligible senior citizen Subscribers a
discount on the rates for Grantee's Family Cable level of Service (a purchase of both the basic
service and the first cable programming services tier as those terms are defined in the Cable
Act on the Effective Date) of no less than ten percent (10%) per month. Senior citizen
Subscribers shall be eligible for this discount if they provide documentation of age (65 or
older), residency at the service address, and that at least one utility is billed in the senior
citizen's name at the service address.
6. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND
GOVERNMENTAL USE
(a) Access Channels
(1) The Grantee shall make available to all Subscribers on the System at
least five (5) video Channels for public, educational and governmental use, which Channels
shall be in addition to any capacity provided on the Institutional Network pursuant to Section
6(h).
(2) The Grantee shall provide any Access Channels on the lowest level of
service throughout the life of the Franchise, or if there is no basic tier (e.g., if a basic tier is
not required by federal law and federal law does not prohibit the City from requiring a basic
tier and the City imposes the same requirements on all Cable Service providers in the City over
12
which the City has jurisdiction to do so), the Grantee shall provide the Access Channels as part
of the Cable Service provided to any Subscriber, at no additional charge, and so that the
channels are viewable by the Subscriber without the need for additional equipment. If
Channels are selected through a menu system, the Access Channels shall be displayed as
prominently as commercial programming choices offered by Grantee.
(3) At such time as the City authorizes conversion of an analog PEG
Channel to digital format on the System, the City may request and the Grantee shall within six
months migrate such PEG Channel to digital format, and Grantee shall install such headend
equipment as is necessary to cablecast in high definition format PEG programming produced in
such format.
(4) Access channel assignments shall be the same throughout the System.
Access channel assignments shall not be changed unless there is good cause and the City
consents to the change. Such consent to a channel assignment change shall not be
unreasonably withheld. Any such reassignment must be to a Channel of technical quality at
least equivalent to that of other Channels on the System. In the event of such a reassignment,
Grantee shall pay the costs of all equipment reasonably required due to the reassignment, and
shall provide notices to educate viewers as to the reassignment. In the event Grantee makes
any change in the Cable System and related equipment, or facilities or in its signal delivery
technology, which would have a material adverse impact on the transmission or signal quality
of Access programming, the Grantee shall at its own expense take all necessary steps to ensure
that, at a minimum, such quality is maintained at no less than the previous level.
(5) Upon the conversion of the entire Cable System to digital transmission or
December 31, 2006, whichever occurs first, the Grantee shall provide the City with PEG
capacity for video programming that may be accessed by Subscribers through use of standard
digital equipment compatible with the Grantee's Cable System using the Grantee's "on
demand" capabilities. The Grantee shall provide storage capacity for up to twenty hours of on-
demand PEG programming at any given time. The City and the Grantee may by mutual
agreement arrange for additional capacity on terms to be determined at the time of agreement.
If the City wishes to store additional programming on its own servers or facilities, the Grantee
shall cooperate with the City in making such additional programming available through the
same on-demand methods. Within thirty days after providing such capability, the Grantee shall
provide the City with an encoder that may be used to digitize PEG programming for use in this
on-demand arrangement.
(6) If Grantee makes changes to its Cable System that require additional
equipment to deliver the PEG programming to Subscribers, Grantee shall make such
equipment available.
(7) The City agrees that its designated Educational and Governmental access
channels and capacity are not to be used for any for-profit, commercial purposes by the City or
third parties. Use of such channels or capacity is not "for profit" or "commercial" solely
because an access programmer or access channel manager has more revenues than expenses, or
13
because the activity in which it is engaged is provided on a for-profit basis by private entities
in other communities or the City. Nothing prevents the City from authorizing charges to users
or viewers to pay for services such as fees for video class instruction or charges to recover the
cost of special use equipment, or as they may be required to charge under applicable law.
(b) Capital Grant for Access Equipment and Facilities
(1) In addition to the franchise fee, the Grantee shall deposit one and three-
quarter percent (1.75 %) of its Gross Revenues annually, paid at the same time and in the same
manner as the franchise fee, in an interest-bearing account upon which the City may draw for
capital support for PEG and I-Net use, in its sole discretion (except that the City shall not use
more than half of the PEG Capital Support Fund for I-Net support, as distinct from support for
PEG Access video programming), at any time while the Franchise remains in effect (the "PEG
Capital Support Fund"). Any unused funds shall be returned to the Grantee at the end of the
franchise term.
(2) For purposes of this Section 6(b), "Gross Revenues" shall be construed
to include all revenues from types of service which on January 1, 2005, were considered
"cable service" as that term was used on that date in 47 U.S.C. ~ 522(6), whether or not such
types of service are determined or held to be "cable service" at any later date.
(c) Public Access
(1) Grantee shall have a continuing obligation, throughout the life of this
franchise, to provide studio facilities, production assistance, editing, scheduling and playback,
training, outreach, management, and administrative support for users of the public access
channels at the level provided as of January 1, 2005. Equipment for the public access studio
shall be provided using the PEG Capital Support Fund as determined by the City pursuant to
section 6(b). The ability to produce and show programming on the public access channels
shall be available to any person who resides within the City limits, and any institution,
organization or agency with either a principal place of business in the City, or a principal
regular meeting place within the City limits, on a first-come, first-served basis, and shall not
require Applicant to exercise editorial control over such use, pursuant to 47 U.S.C. ~ 531(e).
(2) In particular, and without limitation, Grantee shall ensure that production
facilities and support are available at least fifty-seven (57) hours per week to provide to
interested members of the public training and assistance in the use of PEG access production
equipment and assistance in the production of PEG programming. In weeks including one or
more legal holidays such fifty-seven (57) hour requirement shall be reduced accordingly. The
regular operating hours of the PEG access facilities shall include some evening hours, and shall
include some Saturday hours by appointment. The Grantee shall maintain all PEG access
equipment, provide for the check-in and check-out of PEG access equipment, and schedule the˜use of the Grantee's facilities by persons producing PEG programs.
14
TITLE II: CABLE COMMUNICATIONS
1 : General Provisions
substantial portion of such cable system, or (B) who otherwise
controls or is responsible for, through any arrangement, the
management and operation of such a cable system.
(E) Cable Service. (a) The one-way transmission to subscribers of
video programming or other programming service; and (b)
subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service.
(F) Cable System or System. A facility consisting of a set of closed
transmission paths and associated signal generation, reception,
and control equipment that is designed to provide cable television
service which includes video programming and which is provided
to multiple subscribers within the City, but such term does not
include (1) a facility that serves only to retransmit the television
signals of one or more television broadcast stations; (2) a facility
that serves subscribers without using any public rights-of-way and
without connecting to a facility that uses any public rights-of-
way; (3) a facility of a common carrier which is subject, in whole
or in part, to the provisions of Title II of the Communications
Act, except that such facility shall be considered a cable system if
such facility is used in the transmission of video programming
directly to subscribers; (4) an open video system that complies
with 47 U.S.C. ~ 573; or (5) any facilities of any electric utility
used solely for operating its electric utility system.
(G) Converter. An electronic device which may serve as an interface
between a system and a subscriber's television receiver or other
terminal equipment, and which may perform a variety of
functions, including signal security, descrambling, electronic
polling, frequency conversion and channel selection.
(H) Educational Access Channel or Educational Channel. Any
channel on a cable system set aside by a Grantee for educational
use.
(I) Franchise Area. The area of the City that a Grantee is authorized
to serve by its franchise agreement.
(1) Governmental Access Channel or Governmental Channel. Any
channel on a cable system set aside by a Grantee for government
use.
18
TITLE II: CABLE COMMUNICATIONS
1 : General Provisions
(K) Installation. The connection of system services to subscribers'
television receivers or other subscriber-owned or -provided
terminal equipment.
(L) Normal Business Hours. Those hours during which most similar
businesses in the community are open to serve customers,
including some evening hours at least one night per week and/or
some weekend hours.
(M) Normal Operating Conditions. Those service conditions that are
within the control of a Grantee. Conditions that are not within
the control of a Grantee include, but are not limited to, natural
disasters, civil disturbances, power outages, and telephone
network outages. Conditions that are within the control of a
Grantee include, but are not limited to, special promotions, pay-
per-view events, rate increases, regular peak or seasonal demand
periods, and maintenance or upgrade of a cable system.
(N) Programmer. Any person or entity that produces or otherwise
provides program material or information for transmission by
video, audio, digital or other signals, either live or from recorded
traces or other storage media, to users or subscribers by means of
a cable system.
(0) Public Access Channel. Any channel on a cable system set aside
by a Grantee for use by the general public, including groups and
individuals, and which is available for such use on a non-
discriminatory basis.
(P) School. Any primary or secondary school or college accredited
by the State of Iowa, including without limitation all accredited
post-secondary institutions such as community colleges, technical
colleges and universities.
(Q) Security Fund. A performance bond, letter of credit, or cash
deposit, or any or all of these, to the extent applicable to a given
Grantee.
(R) Service Interruption. Loss of picture or sound on one or more
channels, or degradation of picture or sound beyond permissible
levels as defined by applicable law.
19
TITLE II: CABLE COMMUNICATIONS
1: General Provisions
(S) Subscriber. The City or any Person who is lawfully receiving,
for any purpose or reason, any Cable Service via a Cable System,
whether or not a fee is paid for such service.
(T) Transfer.
"Transfer" shall mean any transaction in which: (A) there is any
change in control of the Grantee; or (B) the rights and/or obligations
held by the Grantee under the franchise are transferred, directly or
indirectly, to another party; or (C) any change or substitution occurs in
the managing general partners of the Grantee, where applicable.
Notwithstanding the foregoing, transfers or changes of control between
affiliates under common ownership or control shall not constitute a
"Transfer," provided that the ultimate parent of the Grantee executes and
delivers a guarantee of the Grantee's performance under this Ordinance
and its franchise agreement in substantially the form attached hereto as
Exhibit B.
Notwithstanding any other provision of this Title, pledges in trust or
mortgages of the assets of a Cable System to secure the Construction,
operation, or repair of the system may be made without application and
without City's prior consent. However, no such arrangement shall be
made if it would in any respect under any condition: (1) prevent the
Grantee or any successor from complying with, this Title, franchise
agreement or other applicable law or regulation; or (2) permit a third
party to succeed to the interest of the Operator, or to own or control the
system, without the prior consent of City. Any mortgage, pledge or
lease shall be subject to and subordinate to the rights of City under any
Franchise, this Title, or other applicable law.
(i) "Control" for purposes of this Section 1(6)(T) means the
legal or practical ability to exert actual working control
over the affairs of an entity, either directly or indirectly,
whether by contractual agreement, majority ownership
interest, any lesser ownership interest, or in any other
manner.
(ii) A rebuttable presumption that a transfer of control has
occurred shall arise upon the acquisition or accumulation
of five percent (5 %) or more of the ownership (as
measured by voting interests, not number of shares) of an
20
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
entity by any person or group of persons acting in concert,
none of whom already own or control fifty percent (50 % )
or more of such right or control, singularly or
collectively.
(iii) A Grantee is responsible for ensuring that the intent of
Section 13 herein is carried out. If for any reason an
event occurs that would require the City's approval under
Section 13, whether or not such event is directly or
indirectly within the Grantee's control, such event shall
constitute a "transfer" for purposes of this Ordinance and
any applicable law.
(U) User. A person or organization using a channel or equipment
and facilities for purposes of producing or transmitting material,
as contrasted with the receipt thereof in the capacity of a
subscriber.
2. Grant of Franchise
(1) Grant.
(A) The City may grant one or more cable franchises, and each such
franchise shall be awarded in accordance with and subject to the
provisions of this Ordinance.
(B) This Ordinance may be amended from time to time, and in no
event shall this Ordinance be considered a contract between the
City and a Grantee such that the City would be prohibited from
amending any provision hereof.
(C) No person may construct or operate a cable system in the City
without a franchise granted by the City. No person may be
granted a franchise without having entered into a franchise
agreement with the City pursuant to this Ordinance.
(2) Term of Franchise. No franchise shall be granted for a period of more
than fifteen (15) years, except that a Grantee may apply for renewal or extension pursuant to
applicable law.
(3) Franchise Characteristics.
21
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
(A) A franchise authorizes use of public rights-of-way for installing
cables, wires, lines, optical fiber, underground conduit, and other
devices necessary and appurtenant to the operation of a cable
system to provide cable service within a franchise area, but does
not expressly or implicitly authorize a Grantee to provide service
to, or install a cable system on, private property without owner
consent (except for use of compatible easements pursuant to
Section 621 of the Cable Act, 47 V.S.C. ~ 541(a)(2)), or to use
publicly or privately owned conduits without a separate
agreement with the owners.
(B) A franchise shall constitute both a right and an obligation to
provide the cable services regulated by the provisions of this
Ordinance and the franchise agreement.
(C) A franchise is non-exclusive and will not explicitly or implicitly
preclude the issuance of other franchises to operate cable systems
within the City; affect the City's right to authorize use of public
rights-of-way by other persons to operate cable systems or for
other purposes as it determines appropriate; or affect the City's
right to itself construct, operate, or maintain a cable system, with
or without a franchise, subject to applicable state and federal law .
(D) All privileges prescribed by a franchise shall be subordinate to
(without limitation) the City's use of the public rights-of-way for
purposes that do not directly or indirectly compete with the
Grantee and to any prior lawful occupancy of the public rights-of-
way.
(E) No reference herein, or in any franchise agreement, to "public
rights-of-way" shall be deemed to be a representation or
guarantee by the City that its interest or other right to control the
use of such property is sufficient to permit its use for such
purposes, and a Grantee shall be deemed to gain only those rights
to use as are properly in the City and as the City may have the
undisputed right and power to give.
(4) Grantee Subject to Other Laws, Police Power.
(A) A Grantee shall at all times be subject to and shall comply with
all applicable federal, state, and local laws. A Grantee shall at all
times be subject to all lawful exercise of the police power and any
22
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
other lawful authority of the City, including without limitation all
rights the City may have under 47 U.S.c. ~ 552. Nothing in a
franchise agreement shall be deemed to waive the requirements of
the various codes and ordinances of the City regarding permits,
zoning, fees to be paid, or manner of construction, installation,
operation, maintenance, or repair of system equipment.
(B) No course of dealing between a Grantee and the City, or any
delay on the part of the City in exercising any rights hereunder,
or any acquiescence by the City in the actions of a Grantee that
are in contravention of such rights (except to the extent such
rights are expressly waived by the City) shall operate as a waiver
of any such rights of the City.
(C) The City shall have the maximum authority to regulate cable
systems, Grantees, and franchises as may now or hereafter be
lawfully permissible; except where rights are expressly waived by
a franchise agreement, they are reserved, whether expressly
enumerated or not.
(D) The City may, from time to time, issue such reasonable rules and
regulations concerning cable systems as are consistent with
applicable law and Title I, Section 6.
(5) Eminent Domain. Nothing herein shall be deemed or construed to impair
or affect, in any way or to any extent, the City's rights of eminent domain to the extent to
which they may apply to any cable system.
(6) Applications For Initial Grant or Modification Of Franchise.
(A) Application Required.
(i) A written application shall be filed with the City for grant
of an initial franchise or modification of a franchise
agreement pursuant to 47 U.S.C. ~ 545.
(ii) To be acceptable for filing, a signed original of the
application shall be submitted together with twelve (12)
copies. The application must be accompanied by any
required application filing fee, conform to any applicable
request for proposals, and contain all required
information. All applications shall include the names and
23
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
addresses of persons authorized to act on behalf of all
applicants with respect to the application.
(iii) All applications accepted for filing shall be made available
by the City for public inspection.
(B) Application for Grant of an Initial Franchise.
(i) A person may apply for an initial franchise by submitting
an application containing the information required in
Section 2(6)(C). Upon receipt of such an application, the
City may either (a) evaluate the application pursuant to
Section 2(6)(B)(iii), conducting such investigations as it
deems necessary; or (b) issue a Request for Proposals
("RFP"), after conducting, if necessary, a proceeding to
identify the future cable-related needs and interests of the
community. Any such RFP shall be mailed to the person
requesting its issuance and made available to any other
interested party. The RFP may contain a proposed
franchise agreement.
(ii) An applicant shall respond to a RFP by filing an
application within the time directed by the City, delivering
a copy to each existing Grantee and providing the
information and material set forth in Section 2(6)(C). The
procedures, instructions, and requirements set forth in the
RFP shall be followed by each applicant. Any applicant
that has already filed materials pursuant to subsection
2(6)(B)(i) herein need not refile the same materials with
its RFP response, but must amplify its application to
include any additional or different materials required by
the RFP. The City or its designee may seek additional
information from any applicant and establish deadlines for
the submission of such information.
(iii) In evaluating an application for a franchise, the City shall
consider, among other things, the following factors:
(a) The extent to which the applicant has substantially
complied with the applicable law and the material terms of
any existing cable franchise for the City;
24
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
(b) Whether the quality of the applicant's service
under any existing franchise in the City, including signal
quality, response to customer complaints, billing
practices, and the like, has been reasonable in light of the
needs and interests of the communities served;
(c) Whether the applicant has the financial, technical,
and legal qualifications to provide cable service;
(d) Whether the application satisfies any minimum
requirements established by the City and is otherwise
reasonable to meet the future cable-related needs and
interests of the community, taking into account the cost of
meeting such needs and interests;
(e) Whether the application satisfies any requirements
under applicable state or federal law governing the
issuance of additional franchises;
(t) Whether, to the extent not considered under
subsection 2(6)(B)(iii)(d), the applicant will provide
adequate Public, Educational, and Governmental access
channel capacity, facilities, or financial support;
(g) Whether issuance of a franchise is warranted in the
public interest considering the immediate and future effect
on the public rights-of-way and private property that
would be used by the cable system, including the extent to
which installation or maintenance as planned would
require replacement of property or involve disruption of
property, public services, or use of the public rights-of-
way; the effect of granting a franchise on the ability of
cable to meet the cable-related needs and interests of the
community;
(h) What effects a grant of the application may have
on competition in the delivery of cable service in the City.
(iv) If the City finds that it is in the public interest to issue a
franchise considering the factors set forth above, and
subject to the applicant's entry into an appropriate
franchise agreement, it shall issue a franchise. If the City
denies a franchise, it will issue a written decision
25
TITLE II: CABLE COMMUNICA nONS
2: Grant of Franchise
explaining why the franchise was denied. Prior to
deciding whether or not to issue a franchise, the City may
hold one or more public hearings or implement other
procedures under which comments from the public on an
application may be received. The City also may grant or
deny a request for a franchise based on its review of an
application without further proceedings and may reject
any application that is incomplete or fails to respond to an
RFP. This Ordinance is not intended and shall not be
interpreted to grant any applicant or existing Grantee
standing to challenge the denial of its application or the
issuance of a franchise to another; however, an existing
Grantee shall be an deemed an interested party for
purposes of Section 2(10) of this Title.
(C) Contents of Application. An RFP for the grant of an initial
franchise shall require, and any such application shall contain, at
a minimum, the following information:
(i) Name and address of the applicant and identification of
the ownership and control of the applicant, including: the
names and addresses of the ten (10) largest holders of an
ownership interest in the applicant and affiliates of the
applicant, and all persons with five (5) percent or more
ownership interest in the applicant and its affiliates; the
persons who control the applicant and its affiliates; all
officers and directors of the applicant and its affiliates;
and any other business affiliation and cable system
ownership interest of each named person.
(ii) A demonstration of the applicant's technical ability to
construct and/or operate the proposed cable system,
including identification of key personnel.
(iii) A demonstration of the applicant's legal qualifications to
construct and/or operate the proposed cable system,
including but not limited to a demonstration that the
applicant meets the following criteria:
(a) The applicant must have the necessary authority
under Iowa law to operate a cable system.
26
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
(b) The applicant must have the necessary authority
under federal law to hold the franchise and operate a cable
system. An applicant must have, or show that it is
qualified to obtain, any necessary federal franchises or
waivers required to operate the system proposed.
(iv) A demonstration of the applicant's financial ability to
complete the construction and operation of the cable
system proposed.
(v) A description of the applicant's prior experience in cable
system ownership, construction, and operation, and
identification of communities in which the applicant or
any of its principals have, or have had, a cable franchise
or any interest therein.
(vi) Identification of the area of the City to be served by the
proposed cable system, including a description of the
proposed franchise area's boundaries. In no event,
however, shall the mandatory area of universal service
required be less that of any existing Grantee.
(vii) A detailed description of the physical facilities proposed,
including channel capacity, technical design, performance
characteristics, headend, and access facilities.
(viii) Where applicable, a description of the construction of the
proposed system, including an estimate of plant mileage
and its location; the proposed construction schedule; a
description, where appropriate, of how services will be
converted from existing facilities to new facilities; and
information on the availability of space in conduits
including, where appropriate, an estimate of the cost of
any necessary rearrangement of existing facilities.
(ix) A demonstration of how the applicant will reasonably
meet the future cable-related needs and interests of the
community, including descriptions of how the applicant
will meet the needs described in any recent community
needs assessment conducted by or for the City, and how
the applicant will provide adequate Public, Educational,
and Governmental access channel capacity, facilities, or
27
TITLE II: CABLE COMMUNICATIONS
2: Grant of Franchise
financial support to meet the community's needs and
interests.
(x) Pro forma financial projections for the proposed franchise
term, including a statement of projected income, and a
schedule of planned capital expenditures, with all
significant assumptions explained in notes or supporting
schedules.
(xi) If the applicant proposes to provide cable service to an
area already served by an existing cable Grantee, the
identification of the area where the overbuild would occur
and the ability of the public rights-of-way and other
property that would be used by the applicant to
accommodate an additional system.
(xii) Any other information that may be reasonably necessary
to demonstrate compliance with the requirements of this
Ordinance.
(xiii) Any additional information that the City may have
requested of an applicant that is relevant to the City's
consideration of the application.
(xiv) An affidavit or declaration of the applicant or authorized
officer certifying the truth and accuracy of the information
in the application, acknowledging the enforceability of
application commitments, and certifying that the
application meets all federal and state law requirements.
(D) The City may, at its discretion and upon request of an applicant,
waive in writing the provision of any of the information required
by Section 2(6)(C).
(E) If the applicant was formed less than two years before the date of
application, this same information shall be supplied for each party
owning an interest of ten percent or more in the applicant.
(7) Application for Grant of a Renewal Franchise. The renewal of any
franchise to provide cable service shall be conducted in a manner consistent with applicable
federal law .
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TITLE II: CABLE COMMVNICA TIONS
3: Construction Standards
(8) Application for Modification of a Franchise. An application for
modification of a franchise agreement shall include, at minimum, the following information:
(A) The specific modification requested;
(B) The justification for the requested modification, including the
impact of the requested modification on subscribers and others,
and the financial impact on the applicant if the modification is
approved or disapproved, demonstrated through, inter alia,
submission of financial pro formas;
(C) A statement whether the modification is sought pursuant to
Section 625 of the Cable Act, 47 V.S.C. ~ 545, and, if so, a
demonstration that the requested modification meets the standards
set forth in 47 V.S.c. ~ 545;
(D) Any other information that the applicant believes is necessary for
the City to make an informed determination on the application for
modification; and
(E) An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the
application, and certifying that the application is consistent with
all federal and state law requirements.
(9) Public Hearing. Prior to the issuance of a franchise, the City shall provide
for the holding of a public hearing within the proposed franchise area, following reasonable
notice to the public, at which the applicant and its application shall be examined and the public
and all interested parties afforded a reasonable opportunity to be heard.
(10) Acceptance of Franchise. Following approval by the City, and unless
otherwise specified in a franchise agreement, any franchise granted pursuant to this Ordinance,
and the rights, privileges and authority granted by a franchise agreement, shall take effect and
be in force from and after the first date on which both the Grantee and the City have accepted
and signed the franchise agreement.
3. Construction Standards
(1) The construction, operation, maintenance, and repair of a cable system
shall be in accordance with all applicable sections of the Occupational Safety and Health Act of
1970, as amended; the most current edition of the National Electrical Safety Code and National
Electric Code; Obstruction Marking and Lighting, AC 70/7460 i.e., Federal Aviation
29
TITLE II: CABLE COMMUNICATIONS
4: Use of Public Property
Administration; Construction, Marking and Lighting of Antenna Structures, Federal
Communications Commission Rules Part 17; the Bellcore Blue Book Manual of Construction
Procedures; Applicant's Construction Procedures Manual; and other applicable federal, state,
or local laws and regulations that may apply to the operation, construction, maintenance, or
repair of a cable system, including, without limitation, local zoning and construction codes and
laws and accepted industry practices, all as hereafter may be amended or adopted. In the event
of a conflict among codes and standards, the most stringent code or standard shall apply
(except insofar as that standard, if followed, would result in a system that could not meet
requirements of federal, state or local law, or is expressly preempted by other such standards).
The City may adopt additional standards as required to ensure that work continues to be
performed in an orderly and workmanlike manner.
(2) Without limiting the foregoing, antennae and their supporting structures
(towers) shall be designed in accordance with the Uniform Building Code as amended, and
shall be painted, lighted, erected, and maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration and all other applicable state or local laws,
codes, and regulations, all as hereafter may be amended or adopted.
(3) The City does not guarantee the accuracy of any maps showing the
horizontal or vertical location of existing substructures. In public rights-of-way, where
necessary, the location shall be verified by excavation.
(4) To the extent practicable, above-ground equipment, other than subscriber
drop lines and single dwelling unit or other similar interface devices attached to customer
structures, placed on private property shall be placed at the location requested by the property
owner. A Grantee shall provide affected homeowners with at least ten days' advance written
notice of its plans to install such equipment, and shall make reasonable efforts to confer with
such homeowners before any work is done, if the homeowner contacts the Grantee on a timely
basis before work begins.
4. Use of Public Property
(1) Should the grades or lines of the public rights-of-way that a Grantee is
authorized by a franchise to use and occupy be changed at any time during the term of a
franchise, the Grantee shall, if necessary, relocate or change its system so as to conform with
the new grades or lines.
(2) Any alteration to the water mains, sewerage or drainage system or to any
City, state or other public structures in the public rights-of-way required on account of the
presence of a Grantee's system in the public rights-of-way shall be made at the sole cost and
expense of the Grantee. During any work of constructing, operating or maintaining of a
system, the Grantee shall also protect any and all existing structures belonging to the City and
30
TITLE II: CABLE COMMUNICATIONS
5: Interference with Public Projects
any other person. All work performed by the Grantee shall be done in the manner prescribed
by the City or other officials having jurisdiction therein.
5. Interference with Public Projects. Nothing in this Ordinance or any franchise
agreement shall be in preference or hindrance to the right of the City and any board, authority,
commission or public service corporation to perform or carryon any public works or public
improvements of any description, and should a Grantee's system in any way interfere with the
construction, maintenance or repair of such public works or public improvements, the Grantee
shall protect or relocate its system, or part thereof, as reasonably directed by any City official,
board, authority, commission or public service corporation, consistent with the requirements of
this Ordinance and the franchise agreement.
6. Consumer Protection
(1) General Provisions. This Section sets forth minimum customer service
standards that a Grantee must satisfy. In addition, the Grantee shall at all times satisfy any
additional or stricter requirements established by FCC regulations, or other applicable federal,
state, or local law or regulation, as the same may be adopted or amended from time to time.
(A) Nothing in this Ordinance may be construed to prevent or
prohibit:
(i) the City and a Grantee from agreeing to customer service
requirements that exceed the standards set forth in this
ordinance;
(ii) the City from enforcing, through the end of a franchise
term, pre-existing customer service requirements that
exceed the standards set forth in this Ordinance and are
contained in current franchise agreements;
(iii) the City from enacting or enforcing any customer service
or consumer protection laws or regulations; or
(iv) the establishment or enforcement of any City law or
regulation concerning customer service that imposes
customer service requirements that exceed, or address
matters not addressed by, the standards set forth in this
Ordinance, a franchise agreement or federal or state law;
(v) the City from waiving, for good cause, requirements
established in this Section 6.
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
(2) Nothing in this Ordinance in any way relieves a Grantee of its obligation
to comply with other applicable consumer protection laws and its franchise agreement.
(3) Installations, Connections, and Other Grantee Services.
(A) Standard Installations. Except as federal rate regulations may
otherwise require or preempt, the Grantee shall not assess a
subscriber any cost other than a standard installation charge for
service drops, for a single outlet, unless the Grantee demonstrates
to the City's satisfaction that extraordinary circumstances justify a
higher charge.
(B) The subscriber's preference as to the point of entry into the
residence shall be observed whenever feasible. Runs in building
interiors shall be as unobtrusive as possible. The Grantee shall
use due care in the process of installation and shall repair any
damage to the subscriber's property caused by said installation.
Such restoration shall be undertaken as soon as possible after the
damage is incurred and shall be completed within no more than
thirty (30) days after the damage is incurred.
(C) Location of Drops. In locations where the Grantee's system must
be underground, drops must be placed underground as well.
Except as federal law may otherwise require, in any area where a
Grantee would be entitled to install a drop above-ground, the
Grantee will provide the homeowner the option to have the drop
installed underground if requested, but may charge the
homeowner the difference between the actual cost of the above-
ground installation and the actual cost of the underground
installation.
(D) Time for Extension. Where a Grantee is required under this
Section 6(3)(A) to provide service to a person, it must provide
such service (i) within 30 days of the person's request if such
person resides no further than one hundred fifty (150) feet from
the Grantee's distribution system; (ii) within sixty days if the
person resides more than one hundred fifty (150) feet from the
Grantee's distribution system, but the distribution system need
not be extended for one-half mile or more to provide service; and
(iii) within six months if an extension of the distribution system
for one-half mile or more is required.
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
(E) Deposits. A Grantee may require a reasonable deposit on
equipment provided to subscribers, in addition to any allowable
monthly rental fees. Any subscriber deposit required by Grantee
shall bear interest in accordance with applicable law or at the
going rate, which shall be not less than the prime rate of the bank
being used by the City for the conduct of ordinary business. All
deposits, with interest, shall be returned to the subscriber within
thirty (30) days after termination of service or return of the
equipment, whichever is sooner.
(F) Antennas. A Grantee shall not, as a condition to providing cable
service, require any subscriber or potential subscriber to remove
any existing reception devices for the receipt of over-the-air
signals.
(4) Telephone and Office Availability.
(A) Each Grantee shall maintain an office at a convenient location in
the City that shall be open during normal business hours to allow
subscribers to request service, pay bills, and conduct other
business.
(B) Each Grantee will maintain at least one local, toll-free or collect
call telephone access line which will be available to subscribers
24 hours a day, seven days a week. Trained representatives of a
Grantee shall be available to respond to subscriber telephone
inquiries during normal business hours.
(C) Under Normal Operating Conditions, the following standards
shall be met by a Grantee at least ninety (90) percent of the time,
measured quarterly.
(i) Telephone answering time shall not exceed thirty (30)
seconds, and the time to transfer the call to a customer
service representative (including hold time) shall not
exceed an additional thirty (30) seconds.
(ii) A customer will receive a busy signal less than three
percent (3 %) of the time.
(iii) When the business office is closed, an answering machine
or service capable of receiving and recording service
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
complaints and inquiries shall be employed. Inquiries
received after hours must be responded to by a trained
representative of a Grantee on the next business day. To
the extent possible, the after-hours answering service shall
comply with the same telephone answer time standard set
forth in this Section.
(D) A Grantee must hire sufficient staff (which may include contract
labor) so that it can respond to customer inquiries, complaints,
and requests for service in its office, over the phone, and at the
subscriber's residence as required by this Ordinance.
(5) Scheduling and Completing Service
(A) Installations, Outages and Service Calls. Under Normal
Operating Conditions, each of the following standards shall be
met by all Grantees at least 95 % of the time, as measured on a
quarterly basis:
(i) Repairs and maintenance for service interruptions and
other repairs not requiring work within a subscriber's
premises must be completed within twenty-four (24) hours
after the subscriber reports the problem to the Grantee or
its representative or the interruption or need for repairs
otherwise becomes known to the Grantee. Work on all
other requests for service must be begun by the next
business day after notification of the problem. All such
work must be completed within three (3) days from the
date of the initial request, except installation requests. In
any case where, for reasons beyond a Grantee's control,
the work could not be completed in the specified time
periods even with the exercise of all due diligence, the
Grantee shall complete the work in the shortest time
possible; the failure of a Grantee to hire sufficient staff or
to properly train its staff shall not justify a Grantee's
failure to comply with this provision. Except as federal
law requires, no charge shall be made to the subscriber
for this service, except for the cost of repairs to the
Grantee's equipment or facilities where it can be
documented that the equipment or facility was damaged by
a subscriber. System outages affecting more than 500
subscribers shall be acted upon within four hours after the
34
TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
Grantee becomes aware of the outage, including
Saturdays, Sundays, and legal holidays.
(ii) The appointment window for installations, service calls,
and other installation activities will be either a specific
time or, at maximum, a 4-hour time block during normal
business hours.
(iii) A Grantee may not cancel an appointment with a
subscriber after the close of business on the business day
preceding the appointment. If a Grantee's representative
is running late for an appointment with a subscriber and
will not be able to keep the appointment as scheduled, the
subscriber will be contacted, and the appointment
rescheduled, as necessary, at a time which is convenient
for the subscriber.
(B) Each Grantee shall perform service calls, installations, and
disconnects at least during normal business hours. In addition,
maintenance service capability enabling the prompt location and
correction of major system malfunctions shall be available
twenty-four hours a day, seven days a week.
(C) Emergency Maintenance. A Grantee shall keep an emergency
system maintenance and repair staff, capable of responding to and
repairing system malfunctions or interruptions, on a twenty-four
(24) hour basis.
(D) Other Inquiries. Under Normal Operating Conditions, billing
inquiries and requests for service, repair, and maintenance not
involving service interruptions must be acknowledged by a
trained customer service representative within twenty-four (24)
hours, or prior to the end of the next business day, whichever is
earlier. A Grantee shall respond to all other inquiries within five
(5) business days of the inquiry or complaint.
(E) Repair of Facilities. Except as federal law requires, no charge
shall be made to the subscriber for repairs or maintenance of
Grantee-owned equipment or facilities, except for the cost of
repairs to the Grantee's equipment or facilities where it can be
shown that the equipment or facility was damaged by a
subscriber.
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TITLE II: CABLE COMMUNICA nONS
6: Consumer Protection
(F) Missed Appointments. If a subscriber experiences a missed
appointment due to the fault of a Grantee, the Grantee shall pay
the subscriber twenty (20) dollars for each missed appointment,
or such other amount as the City and the Grantee may agree, in
addition to any other penalties or liquidated damages.
(G) Mobility-Limited Subscribers. With regard to mobility-limited
subscribers, upon subscriber request, each Grantee shall arrange
for pickup and/or replacement of converters or other Grantee
equipment at the subscriber's address or by a satisfactory
equivalent (such as the provision of a postage-prepaid mailer).
(6) Interruptions of Service. A Grantee may intentionally interrupt service
on the cable system only for good cause and for the shortest time possible and, except in
emergency situations or to the extent necessary to fix the affected subscriber's service
problems, only after a minimum of forty-eight (48) hours' prior notice to subscribers and the
City of the anticipated service interruption; provided, however, that planned maintenance that
does not require more than two (2) hours' interruption of service and that occurs between the
hours of 12:00 midnight and 6:00 a.m. shall not require such notice to subscribers, but shall
require notice to the City no less than twenty-four (24) hours prior to the anticipated service
interruption.
(7) Notice to Subscribers.
(A) When a subscriber is connected or reconnected to a cable system
and at least once annually afterwards, and at any time upon
request, the Grantee shall provide each subscriber with written
information concerning the following. Copies of all such
materials provided to subscribers shall also be provided to the
City. Such information shall also be made available on a
generally accessible Internet site.
(i) a description of products and services offered, including a
schedule of rates and charges, a list of channel positions,
and a description of programming services, options, and
conditions;
(ii) a description of the Grantee's installation and service
maintenance policies, delinquent subscriber disconnect
and reconnect procedures, and any other of its policies
applicable to its subscribers;
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TITLE II: CABLE COMMUNICA nONS
6: Consumer Protection
(iii) instructions on how to use the cable service;
(iv) instructions for placing a service call;
(v) a description of the Grantee's billing and complaint
procedures, including the address and telephone number
of the City office responsible for receiving subscriber
complaints;
(vi) a copy of the service contract, if any;
(vii) notice regarding subscribers' privacy rights pursuant to 47
U.S.c. ~ 551;
(viii) notice of the availability of universal remote controls and
other compatible equipment (a list of which, specifying
brands and models, shall be provided to any subscriber
upon request).
(B) The Grantee shall provide to all subscribers at least thirty days'
written notice before the implementation of any change in rates,
programming services, business hours, or procedures for
responding to inquiries after normal business hours. At least five
working days before the subscriber notice, unless waived by the
City, the Grantee shall provide to the City the specific points to
be contained in a subscriber notice and the text of the subscriber
notice, if available. If the text is not available, it shall be
provided to the City as soon as it is available.
(C) All Grantee promotional materials, announcements, and
advertising of residential cable service to subscribers and the
general public, where price information is listed in any manner,
shall clearly and accurately disclose price terms. In the case of
pay-per-view or pay-per-event programming, all promotional
materials must clearly and accurately disclose price terms and in
the case of telephone orders, a Grantee shall take appropriate
steps to ensure that price terms are clearly and accurately
disclosed to potential customers before the order is accepted.
(D) Each Grantee shall maintain a public file containing all notices
provided to subscribers under these customer service standards.
Copies of all such notices sent to subscribers, and of any
37
TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
agreements used with subscribers, shall be filed promptly with
the City.
(8) Subscriber Agreements
(A) The form of any installation or service agreement which a
Grantee proposes to use or has used with a subscriber shall be
subject to the approval of the City in order to ensure protection of
legitimate consumer interests. Any type of agreement used by a
Grantee and not approved by the City shall be void ab initio.
When such an agreement is submitted for approval, the City shall
provide its response within two weeks after the date of
submission.
(B) Two (2) copies of all other types of agreements with subscribers
used by a Grantee shall be filed and maintained, one (1) copy
with the City Clerk and one (1) copy with the City Manager or
the City Manager's designee.
(C) No agreement with a subscriber shall contain false or misleading
information.
(9) Billing.
(A) Bills shall be clear, concise, and understandable. Bills must be
fully itemized with itemizations including, but not limited to,
basic and premium service charges and equipment charges. Bills
shall clearly delineate all activity during the billing period,
including optional charges, rebates, and credits. Amounts
itemized on bills pursuant to 47 U.S.C. ~ 542(c) shall not be
identified as separate costs over and above the amount the
franchisee charges a subscriber for cable service, but shall be
shown in such a way as to make clear to the subscriber that these
amounts are part of the total amount a Grantee charges a cable
subscriber for cable service, as set forth in the example in H.R.
Rep. No. 628, !02d Cong., 2d Sess., at 86 (1992).
(B) Refund checks to subscribers shall be issued promptly, but no
later than the later of -
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
(i) the subscriber's next billing cycle, or thirty (30) days,
following resolution of the refund request, whichever is
earlier; or
(ii) the return of all equipment supplied by the Grantee, if
service is terminated.
(C) Credits for service shall be issued no later than the subscriber's
next billing cycle following the determination that a credit is
warranted.
(D) A Grantee's first billing statement after a new installation or
service change shall be prorated as appropriate and shall reflect
any security deposit.
(E) A Grantee's billing statement must show a specific payment due
date not earlier than the tenth day of the period for which the
service being billed is rendered. Any balance not received by the
end of the period for which the service is being billed ("Current
Month") may be assessed a late fee not exceeding five dollars
($5.00) in 2005 dollars, adjusted for inflation according to CPI-U
All Urban Consumers U.S. City Average All Items, or such other
amount as the City and the Grantee may agree, consistent with
state and local law. Any late fee shall appear on the billing
statement for the month after the Current Month ("Subsequent
Month"). If a late fee is shown on the Subsequent Month's
billing statement and such late fee amount is paid before the end
of the Current Month, then the Grantee shall reverse such late fee
and credit such subscriber's account for the amount of such late
fee.
(F) A Grantee must notify the subscriber that he or she can remit
payment in person at the Grantee's business office and inform the
subscriber of the address of that office.
(G) Subscribers shall not be charged a late fee or otherwise penalized
for any failure by a Grantee, including failure to timely or
correctly bill the subscriber, or failure to properly credit the
subscriber for a payment timely made.
(H) The account of any subscriber shall be credited a prorated share
of the monthly charge for the service upon the subscriber's
39
TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
reasonably prompt request and, without a subscriber's request, in
any case where the Grantee can identify the affected subscribers,
if said subscriber is without service or if service is substantially
impaired for any reason for a period exceeding four (4) hours
during any twenty-four (24) hour period, except where (i) it can
be documented that a subscriber seeks a refund for an outage or
impairment which that subscriber caused, or (ii) in the case of a
planned outage of two hours or less occurring between the hours
of 12:00 midnight and 6:00 a.m. of which the subscriber had
prior notice, or (iii) if the interruption is necessary to perform
tests required by applicable law.
(I) A Grantee shall respond to all written billing complaints from
subscribers within thirty (30) days.
(10) Disconnection/Downgrades.
(A) A subscriber may terminate service at any time unless the
subscriber has voluntarily entered into a contract for service for a
term of longer than one month, in which case the contract terms
shall govern.
(B) A Grantee shall promptly disconnect or downgrade any
subscriber upon request. No period of notice prior to voluntary
termination or downgrade of service may be required of
subscribers by any Grantee. So long as the subscriber returns, or
permits the Grantee to retrieve, any equipment necessary to
receive a service within five (5) business days of the
disconnection, no charge may be imposed by any Grantee for any
cable service delivered after the date of the disconnect request.
(C) Any security deposit and/or other funds due the subscriber shall
be refunded on disconnected accounts after any customer
premises equipment provided by the Grantee has been recovered
by the Grantee. The refund must be made within thirty (30) days
or by the end of the next billing cycle, whichever is earlier, from
the date disconnection was requested (or, if later, the date on
which any customer premises equipment provided by the Grantee
is returned).
(D) If a subscriber fails to pay a monthly subscriber fee or other fee
or charge, a Grantee may disconnect the subscriber's service;
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
however, such disconnection shall not be effected until after
forty-five (45) days from the beginning of the period for which
the service being billed is rendered, plus at least ten (10) days'
advance written notice to the subscriber in question of intent to
disconnect, given after the 45 days have elapsed. If the
subscriber pays all amounts due, including late charges, before
the date scheduled for disconnection, the Grantee shall not
disconnect service. After disconnection, upon payment by the
subscriber in full of all proper fees or charges, including the
payment of the reconnection charge, if any, the Grantee shall
promptly reinstate service.
(E) A Grantee may immediately disconnect a subscriber if the
subscriber is damaging or destroying the Grantee's cable system
or equipment. After disconnection, the Grantee shall restore
service after the subscriber provides adequate assurance that it
has ceased the practices that led to disconnection, and pays all
proper fees and charges, including any reconnect fees and
amounts owed the Grantee for damage to its cable system or
equipment.
(F) A Grantee may also disconnect a subscriber that causes signal
leakage in excess of federal limits. Disconnection may be
effected after five (5) days' written notice to the subscriber, if the
subscriber fails to take steps to correct the problem. In addition,
a Grantee may disconnect a subscriber without notice where
signal leakage is detected originating from the subscriber's
premises in excess of federal limits, provided that the Grantee
shall immediately notify the subscriber of the problem and, once
the problem is corrected, reconnect the subscriber.
(G) If a Grantee fails to remove its subscriber terminal equipment
from a subscriber's premises within one hundred twenty (120)
days of the termination of service, the property shall be deemed
abandoned, unless such subscriber is responsible for the
Grantee's failure to remove such property.
(H) A Grantee shall reconnect service to customers wishing
restoration of service, provided such a customer shall first satisfy
any previous obligations owed.
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TITLE II: CABLE COMMUNICATIONS
6: Consumer Protection
(11) Parental Control Option. A Grantee shall make available to any
subscribers upon request the option of blocking the video or audio portion of any channel or
channels of programming entering the subscriber's home. The control option described herein
shall be made available to all subscribers requesting it when any cable service is provided, or
reasonably soon thereafter.
(12) Subscriber Contracts
No Grantee shall require a subscriber, as a condition of service, to waive any rights the
subscriber may have against the Grantee at law or equity.
(13) Enforcement
(A) A Grantee shall keep such records as are necessary to show
compliance with these customer service standards and FCC
customer service standards.
(B) A Grantee shall file annually with the City a statement signed by
an officer or employee certifying compliance with these customer
service standards and FCC customer service standards for each
calendar quarter. Each such certification shall be filed with the
Grantee's annual report. If a Grantee is unable to certify full
compliance for each calendar quarter, it must indicate in its filing
each standard with which it is in compliance, and in non-
compliance statement.
(C) If a Grantee in non-compliance with any standard during any
calendar quarter, it shall include in its annual filing a statement
specifying areas of non-compliance, the reason for the non-
compliance and a remedial plan.
(D) An officer or employee of a Grantee who knowingly and
intentionally signs a compliance certificate or noncompliance
statement knowing that such statement is materially false shall be
guilty of a misdemeanor.
(E) A Grantee that fails to file a compliance certificate or
noncompliance statement as required herein shall be liable for the
penalty specified for violation of customer service standards
herein.
42
TITLE II: CABLE COMMUNICA nONS
7: Rate Regulation
(F) In addition, except as prohibited by federal law, a Grantee shall
be subject to penalties, forfeitures and any other remedies or
sanctions available under federal, state or local law, including
without limitation this Ordinance and a Grantee's franchise with
the City, if it fails to comply with the standards herein.
(G) Violation of the consumer protection obligations referred to in
this Section 6 shall be a municipal infraction as defined in
Section 1-15 of the City of Dubuque Code of Ordinances and
shall be punishable as provided therein.
(14) Exclusive Contracts and Anticompetitive Acts Prohibited.
(A) No Grantee shall enter into an exclusive agreement to serve a
subscriber, person or location unless the Grantee has also offered
cable service under terms not requiring an exclusive contract.
(B) No Grantee shall engage in acts that have the purpose or effect of
limiting competition for the provision of cable service or services
similar to cable service in the City, except for such actions as are
expressly authorized by federal or state law.
7. Rate Re2Ulation
The City reserves the right to regulate all rates and charges except to the extent it
is prohibited from doing so by law.
8. Franchise Fee
(1) Payment of Franchise Fee.
(A) Each Grantee shall pay a franchise fee in an amount determined
in the franchise agreement.
(B) In the event that any franchise fee payment or any recomputation
amount is not paid by the due date, then interest shall accrue to
the City from such due date at a rate equal to the interest rate
then chargeable for unpaid federal income taxes (26 U.S.C. ~
6621).
(C) In the event that a franchise is revoked prior to its expiration
date, the Grantee shall file with the City, within thirty days after
43
TITLE II: CABLE COMMUNICATIONS
9: System Tests and Inspections
the date of revocation, a financial statement certified by the
Grantee's chief financial officer or an independent certified public
accountant clearly showing the gross revenues received by the
Grantee since the previous franchise fee payment period and shall
pay at that time any franchise fees accrued as of the date of
revocation.
(2) Not a Tax or in Lieu of Any Other Tax or Fee.
(A) Payment of the franchise fee shall not be considered in the nature
of a tax, nor shall it be considered in lieu of other taxes or fees
imposed by the City except to the extent that federal law requires
such other taxes or fees to be considered part of the franchise fee.
(B) No Grantee may designate the franchise fee as a tax in any
communication to a subscriber.
(3) No Accord or Satisfaction. No acceptance of any payment by the City
shall be construed as a release or an accord and satisfaction of any claim the City may have for
further or additional sums due or for the performance of any other obligation of a Grantee, or
as an acknowledgement that the amount paid is the correct amount due.
(4) Allocation of Discounts. For purposes of calculating franchise fee
payments under applicable franchise provisions, any discount reflected in an aggregated bill for
services which include cable services will be allocated proportionately to cable services.
9. System Tests and Inspections
(1) A Grantee shall perform all tests necessary to. demonstrate compliance
with the requirements of its franchise and other performance standards established by law or
regulation, and to ensure that system components are operating as expected.
(2) A Grantee shall conduct tests as follows:
(A) acceptance tests on each newly constructed or rebuilt segment
prior to subscriber connection or activation;
(B) proof of performance tests on the system at least once every six
months or as required by FCC rules, whichever is more often,
except as federal law may otherwise limit the Grantee's
obligation;
44
TITLE II: CABLE COMMUNICATIONS
10: Insurance
(C) special tests when subscriber or user complaints indicate tests are
warranted;
(D) special tests at the City's reasonable request.
(3) Tests shall be supervised by the Grantee's professional engineer, who
shall sign all records of tests provided to the City.
(4) If the City notifies a Grantee that the City wishes to observe the next
proof of performance test, then the Grantee shall provide the City with at least two business
days' notice of the test, and an opportunity to observe it. The City may also conduct
inspections of construction areas and subscriber installations, including but not limited to
inspections to assess compliance with the Grantee's construction and installation requirements,
its franchise agreement, and applicable law generally. Inspection does not relieve the Grantee
of its obligation to build in compliance with all provisions of its franchise.
(5) A written report of the results of any tests required by the City shall be
filed with the City within seven (7) days of each test upon the City's request. In addition, the
Grantee shall retain written reports of the results of any tests required by the FCC, and such
reports shall be submitted to the City upon the City's request.
(6) If any test requested by the City indicates that any part or component of
the system fails to meet applicable requirements, the Grantee, without requirement of
additional notice or request from City, shall take corrective action, retest the locations and
advise the City of the action taken and results achieved.
(7) The City reserves the right to conduct its own tests upon reasonable
notice to the Grantee. If noncompliance is found, the expense thereof shall be borne by the
Grantee. The City will endeavor to arrange any request for such tests so as to minimize
hardship or inconvenience to the Grantee or to subscribers.
10. Insurance
(1) A Grantee shall maintain, and by its acceptance of the Franchise
specifically agrees that it will maintain, throughout the entire length of the Franchise period,
insurance as set forth in the Insurance Schedule, Exhibit A, as such schedule may from time to
time be amended by the City. The Insurance Schedule attached as Exhibit A is the City's
current schedule.
(A) All contractual liability insurance policies and certificates
maintained pursuant to this Agreement shall include the provision
of the following Indemnification clause:
45
TITLE II: CABLE COMMUNICATIONS
11: Reports and Records - Cable
To the fullest extent permitted by law, the Grantee
shall indemnify and hold harmless the City from
and against all claims, damages, losses and
expenses, including but not limited to attorneys'
fees, arising out of or resulting from the
Franchise, provided that such claim, damages, loss
or expense is attributable to bodily injury,
sickness, disease or death, or injury to or
destruction of property including loss of use
resulting therefrom, but only to the extent caused
in whole or in part by negligent acts or omissions
ofthe Grantee, the Grantee's subcontractor, or
anyone directly or indirectly employed by the
Grantee or the Grantee's subcontractor or anyone
for whose acts the Grantee or the Grantee's
subcontractor may be liable, regardless of whether
or not such claim, damage, loss or expense is
caused in part by a party indemnified hereunder.
11. Reports and Records - Cable
(1) A Grantee shall maintain financial records that allow analysis and review
of its operations in each individual Franchise Area.
(2) Communication with Regulatory Agencies
(A) The Grantee shall file with the City all reports and materials
submitted to or received from the Federal Communications
Commission by the Grantee or its Affiliates that relate
specifically to the Cable System or are reasonably likely to affect
the Grantee's operations in the City. Such reports and materials
shall include, but are not limited to, proof of performance tests
and results and any petitions or applications regarding the Cable
System or a group of Cable Systems of which the Grantee's
Cable System is a part.
(B) Materials filed with the City pursuant to Section 11(2)(A) shall be
filed as follows: Materials submitted by the Grantee, an
Affiliate, or any other Person on the behalf of the Grantee shall
be filed with the City no later than the next business day after
they are submitted to the receiving agency. Materials received by
46
TITLE II: CABLE COMMUNICATIONS
11 : Reports and Records - Cable
the Grantee shall be filed with the City within thirty (30) days of
the date they are received by the Grantee, except that if
applicable law permits a response to such materials by the City
and sets a deadline of sixty (60) or fewer days for the City's
response, they shall be filed with the City within five (5) days of
the date they are received by the Grantee.
(C) Public access to such materials received by the City shall not be
denied, except to the extent expressly required by law.
(3) Annual Report: Unless this requirement is waived in whole or in part by
the City, no later than 120 days after the end of its fiscal year, a Grantee shall submit a written
report to the City, in a form directed by the City, which shall include:
(A) a summary of the previous year's activities in development of the
Cable System, including but not limited to descriptions of
services begun or dropped, the number of subscribers gained or
lost for each category of service, the amount collected annually
from Users of the System and the character and extent of the
services rendered to any Users from whom amounts are
collected, including Leased Access Channel Users, provided that
if the City directly or indirectly compete with a Grantee in
providing communications services, it shall provide such Grantee
with the number of subscribers gained or lost for each category of
service by the City during the City's fiscal year;
(B) a summary of complaints, identifying both the number and nature
of the complaints received and an explanation of their
dispositions, as such records are kept by the Grantee. Where
complaints involve recurrent System problems, the nature of each
such problem and the corrective measures taken shall be
identified;
(C) a report showing the number of service calls received by type
during each quarter, and the percentage of service calls compared
to the Subscriber base by type of complaint;
(D) a report showing the number of outages and service degradations
for each quarter, and identifying separately each planned outage,
the time it occurred, its duration, and the estimated area and
number of Subscribers affected; each unplanned outage or service
degradation, the time it occurred, its estimated duration and the
47
TITLE II: CABLE COMMUNICATIONS
11 : Reports and Records - Cable
estimated area and the number of Subscribers affected; and the
total hours of outages and service degradations as a percentage of
total hours of Cable System operation.
(E) a copy of any rules and regulations of the Grantee applicable to
subscribers of the cable system, and of any contracts for Cable
Service initiated with current subscribers during the year;
(F) an annual statement of Gross Revenues derived from the
operation of the Cable System, certified by an officer of the
Grantee;
(G) a full schedule of all Subscriber and other user rates, fees and
charges;
(H) the Grantee's policies regarding Subscriber privacy;
(I) such other information as the City may direct that is relevant to
compliance with the Grantee's franchise agreement, this
Ordinance and other applicable law.
(4) A Grantee must submit a copy and full explanation of any notice of
deficiency, forfeiture, or other document issued by any state or federal agency instituting any
investigation or civil or criminal proceeding regarding the Cable System, the Grantee, or any
Affiliate of the Grantee, to the extent the same may affect or bear on operations in the City.
By way of illustration and not limitation, a notice that an Affiliate that has a management
contract for the Cable System was not in compliance with FCC EEO requirements would be
deemed to affect or bear on operations in the City. This material shall be submitted in
accordance with the deadlines specified in Section 11 (2)(B) herein.
(5) Additional Reports: Each Grantee shall prepare and furnish to the City,
at the times and in the form prescribed by the City, such additional reports with respect to its
operation, affairs, transactions or property, as the City may reasonably deem necessary or
relevant to the performance of any of the rights, functions or duties of the City in connection
with this Agreement and/or the Cable Ordinance.
(6) Records Required: The Grantee shall maintain:
(A) Records of all complaints received. The term "complaints" as
used herein and throughout this Agreement refers to written
complaints or complaints documented in the Grantee's normal
course of business about any aspect of the Cable System or the
48
TITLE II: CABLE COMMVNICA TIONS
12: Performance Guarantees And Penalties
Grantee's operations, including, without limitation, complaints
about employee courtesy. Complaints recorded may not be
limited to complaints requiring an employee service call.
(B) Records of outages, indicating date, duration, area, number of
Subscribers affected, type of outage, and cause.
(C) Records of service calls for repair and maintenance, indicating
the date and time service was requested, the date and time service
was provided, and (if different) the date and time the problem
was resolved.
(D) Records of installationlreconnection and written requests for
service extension, indicating date of request, date of
acknowledgment, and the date and time service was extended.
(7) Retention of Records; Relation to Privacy Rights: A Grantee shall take
all steps that may be required to ensure that it is able to provide the City all information which
must be provided or may be requested under the Cable Ordinance or this Agreement, including
by providing appropriate Subscriber privacy notices. Nothing in this Section shall be read to
require a Grantee to violate 47 V.S.C. ~ 551. Each Grantee shall be responsible for redacting
any data that federal law prevents it from providing to the City. The City retains the right to
question any such redaction and to challenge it in any forum having jurisdiction over such a
challenge. Records shall be kept for at least five (5) years, unless otherwise agreed to in
writing by the City.
(8) Waiver of Reporting Requirements: The City may, at its discretion,
waive in writing the requirement of any particular report specified in this Section 11.
12. Performance Guarantees And Penalties
(1) Penalties
(A) For violation of provisions of this Ordinance or a franchise
agreement entered into pursuant to this Ordinance, including but
not limited to the following, penalties shall be assessable against a
Grantee and shall be chargeable to the Grantee's security fund in
any amount up to the limits specified in City of Dubuque Code of
Ordinances ~ 1-15 et seq., at the City's discretion:
(i) For failure to substantially complete construction III
accordance with the franchise agreement;
49
TITLE II: CABLE COMMUNICATIONS
12: Performance Guarantees And Penalties
(ii) For transferring the franchise without approval;
(iii) For failure to comply with requirements for public,
educational, and governmental use of the system;
(iv) For violation of customer service standards;
(v) For failure, unless such failure is beyond the Grantee's
control, of the system to perform in the event of a public
emergency;
(vi) For violation of technical standards established by the
FCC;
(vii) For violation of federal, state, or local privacy
requirements;
(viii) For any other violations of this Ordinance, a franchise
agreement, or other applicable law.
(B) The following procedure shall apply, in place of the amount
specified in Section 12(1)(A)(iv) above, for violation of customer
service standards, in assessing liquidated damages for customer
service standards that are measured on a quarterly basis:
(i) For the first calendar quarter in which the Grantee does
not meet the prescribed standard (a "noncompliant
quarter"), the Grantee will be subject to penalties in the
amount of $1,500.
(ii) For a second consecutive noncompliant quarter, the
Grantee shall be subject to penalties in the amount of
$2,000.
(iii) For each consecutive noncompliant quarter beyond the
second, the Grantee shall be subject to penalties in the
amount of $4,000.
(C) The Grantee shall pay any penalty assessed in accordance with
this Ordinance within thirty days after receipt of notice from the
City.
50
TITLE II: CABLE COMMUNICATIONS
13: Transfers
(D) To the extent that penalties are applied to a Grantee under this
Section 12(1), a Grantee shall not be subject to liquidated
damages payable to the City for the same violation.
(E) The City may reduce or waive any of the above-listed penalties
for good cause shown.
(F) Pending litigation or any appeal to any regulatory body or court
having jurisdiction over a Grantee shall not excuse the Grantee
from the performance of its obligations under this Ordinance or
its franchise agreement unless a stay is obtained. Failure of the
Grantee to perform such obligations because of pending litigation
or petition, in the absence of a stay issued by a forum of
competent jurisdiction, may result in forfeiture or revocation
pursuant to the provisions of this Ordinance and/or its franchise
agreement.
(2) Remedies Cumulative. All remedies under this Ordinance and the
franchise agreement are cumulative unless otherwise expressly stated. The exercise of a
remedy or the payment of liquidated damages or penalties shall not relieve a Grantee of its
obligations to comply with its franchise or applicable law
(3) Relation to Insurance and Indemnity Requirements. Recovery by the
City of any amounts under insurance, the security fund, the performance bond, or letter of
credit, or otherwise does not limit a Grantee's duty to indemnify the City in any way; nor shall
such recovery relieve a Grantee of its obligations under a franchise, limit the amounts owed to
the City, or in any respect prevent the City from exercising any other right or remedy it may
have.
13. Transfers
(1) City Approval Required.
(A) A franchise shall be a privilege that is in the public trust and
personal to the Grantee. A Grantee's obligations under its
franchise involve personal services whose performance involves
personal credit, trust, and confidence in the Grantee.
(B) No transfer of a franchise, Grantee, or cable system, or of
control over the same (including, but not limited to, transfer by
forced or voluntary sale, merger, consolidation, receivership, or
any other means) shall occur unless prior application is made by
51
TITLE II: CABLE COMMUNICATIONS
13: Transfers
the Grantee to the City and the City's prior written consent is
obtained, pursuant to this Ordinance and the franchise agreement,
and only then upon such terms and conditions as the City deems
necessary and proper. Any such transfer without the prior
written consent of the City shall be considered to impair the
City's assurance of due performance. The granting of approval
for a transfer in one instance shall not render unnecessary
approval of any subsequent transfer.
(2) Application.
(A) A Grantee shall promptly notify the City of any proposed
transfer.
(B) At least one hundred twenty (120) calendar days prior to the
contemplated effective date of a transfer, a Grantee shall submit
to the City a written application for approval of a transfer. Such
an application shall provide complete information on the proposed
transaction, including details on the legal, financial, technical,
and other qualifications of the transferee, and on the potential
impact of the transfer on subscriber rates and service. At a
minimum, the following information must be included in the
application, unless these requirements are waived, reduced, or
modified by the City:
(i) all information and forms required under federal law;
(ii) all information required in Sections 2(6)(C)(i)-(v) of this
Ordinance;
(iii) a detailed statement of the corporate or other business
entity organization of the proposed transferee, together
with an explanation of how decisions regarding the System
will be made if the proposed transaction is approved;
(iv) complete and unredacted copies of any contracts,
financing documents, or other documents that relate to the
proposed transaction, and all documents, schedules,
exhibits, or the like referred to therein;
(v) any documents related to the transaction (including any
documents regarding rates the transferee expects to
charge) that have been provided to any entity that has been
52
TITLE II: CABLE COMMUNICATIONS
13: Transfers
asked to provide financing (debt, equity, or any other
kind) for, or to underwrite any offering made in
connection with, the proposed transaction;
(vi) any shareholder reports or filings with the Securities and
Exchange Commission ("SEC") or the Federal Trade
Commission ("FTC") that discuss the transaction, and any
filings required under federal or state law in connection
with the proposed transaction;
(vii) complete financial statements for the Grantee and any
potential transferees for the last three years, including
balance sheets, income statements, profit and loss
statements, and documents detailing capital investments
and operating costs;
(viii) a detailed description of the sources and amounts of the
funds to be used in the proposed transaction, indicating
how the debt-equity ratio of the System will change in the
course of the transaction; what entities will be liable for
repayment of any debt incurred; what interest, payment
schedule, and other terms or conditions will apply to any
debt financing; any debt coverages or financial ratios any
potential transferees will be required to maintain over the
franchise term if the proposed transaction is approved;
what financial resources would be available to the System
under the control of the proposed transferee; whether the
proposed transferee can meet debt -equity or any other
required ratios without increasing rates, with any
assumptions underlying that conclusion, and if not, what
increases would be required and why;
(ix) any other information necessary to provide a complete and
accurate understanding of the financial position of the
System before and after the proposed Transfer;
(x) complete information regarding any potential impact of
the Transfer on subscriber rates and service;
(xi) any representations made to anyone, in connection with
the transaction, about the Grantee's compliance with its
Franchise; and
53
TITLE II: CABLE COMMUNICATIONS
13 : Transfers
(xii) a brief summary of the proposed transferee's plans for at
least the next five years regarding line extension, plant
and equipment upgrades, channel capacity, expansion or
elimination of services, and any other changes affecting or
enhancing the performance of the System.
(C) To the extent consistent with applicable law, the City may waive
in writing any such requirement that information be submitted as
part of the initial application, without thereby waiving any rights
the City may have to request such information after the initial
application is filed.
(D) For the purposes of determining whether it shall consent to a
transfer, the City or its agents may inquire into all qualifications
of the prospective transferee and such other matters as the City
may deem necessary in considering the matters described in
Section 13(3)(A). The Grantee and any prospective transferees
shall assist the City in any such inquiry, and if they fail to do so,
the request for transfer may be denied.
(E) Any transfer review period established by federal law will not
begin until all documents and information required by Section
13(2)(B), without exception, have been provided to the City,
unless the City and the Grantee have expressly agreed in writing,
before the transfer application is filed with the City, that specified
documents or parts of documents may be redacted, excluded, or
reviewed through special arrangements. It shall be the
responsibility of the Grantee in any transfer to make any
arrangements with the City with regard to redaction, exclusion,
or confidentiality, including without limitation the execution of
any confidentiality agreements that may be appropriate, prior to
the filing of any FCC Form 394 or transfer application. By
accepting its franchise, a Grantee agrees that any transfer
application inconsistent with this requirement is void and, in
addition, that filing such an application constitutes a violation of
this Ordinance.
(3) Determination by City.
(A) In making a determination as to whether to grant, deny, or grant
subject to conditions an application for a transfer, the City may
consider, without limitation, the legal, financial, and technical
54
TITLE II: CABLE COMMUNICATIONS
13: Transfers
qualifications of the transferee to operate its system; any potential
impact of the transfer on subscriber rates or services; whether the
incumbent cable operator is in compliance with its franchise
agreement, this Ordinance, and applicable law, and, if not,
whether the proposed transferee will cure any noncompliance;
whether the transferee owns or controls any other cable system in
the City, and whether operation by the transferee may eliminate
or reduce competition in the delivery of cable service in the City;
whether operation by the transferee or approval of the transfer
would adversely affect subscribers or the public, or the City's
interest under the franchise agreement, this Ordinance, and other
applicable law; whether the transfer would make it less likely that
the future cable-related needs and interests of the community
would be satisfied at a reasonable cost; and any other matters that
it is required or permitted to consider under applicable law.
(B) Any transfer without the City's prior written approval shall be
ineffective, and shall make this franchise subject to cancellation at
the City's sole discretion, and to any other remedies available
under the franchise agreement, this Ordinance, or other
applicable law. Any such transfer shall be deemed to cause
irreparable harm to the City.
(C) A Grantee shall be fully liable for any transfer that is in violation
of the terms of its franchise agreement or this Ordinance and is
caused in whole or in part by any other entity or entities,
including but not limited to any parents or affiliated entities, as if
such transfer had been caused by the Grantee itself.
(4) Transferee's Agreement: No application for a transfer shall be granted
unless the transferee agrees in writing that it will abide by and accept all terms of the franchise
agreement and this Ordinance, and that it will assume the obligations, liabilities, and
responsibility for all acts and omissions, known and unknown, of the previous Grantee for all
purposes, including renewal, unless the City, in its sole discretion, expressly waives this
requirement in whole or in part.
(5) Approval Does Not Constitute Waiver. Approval by the City of a
transfer does not constitute a waiver or release of any of the rights of the City under this
Ordinance or a franchise agreement, whether arising before or after the date of the transfer.
55
TITLE II: CABLE COMMUNICATIONS
14: Rights Of Individuals Protected
14. Ri2hts Of Individuals Protected
(1) Discriminatory Practices Prohibited.
(A) A Grantee shall not deny service, deny access, or otherwise
discriminate against subscribers, programmers, or residents of the
City on the basis of race, color, religion, national origin, sex, or
age.
(B) A Grantee shall not discriminate among persons or take any
retaliatory action against a person because of that person's
exercise of any right it may have under federal, state, or local
law, nor may the Grantee require a person to waive such rights as
a condition of taking service.
(C) A Grantee shall not deny access or levy different rates and
charges on any group of potential residential cable subscribers
because of the income of the residents of the local area in which
such group resides.
(D) Subject to applicable law and except to the extent the City may
waive such a requirement, a Grantee is prohibited from
discriminating in its rates or charges or from granting undue
preferences to any subscriber, potential subscriber, or group of
subscribers or potential subscribers; provided, however, that a
Grantee may offer temporary, bona fide promotional discounts in
order to attract or maintain subscribers, so long as such discounts
are offered on a non-discriminatory basis to similar classes of
subscribers throughout the City; and a Grantee may offer
discounts for the elderly, the handicapped, non-for-profit persons
or organizations, or the economically disadvantaged, and such
other discounts as it is expressly entitled to provide under federal
law, if such discounts are applied in a uniform and consistent
manner. A Grantee shall comply at all times with all applicable
federal, state, and City laws, and all executive and administrative
orders relating to non-discrimination.
(E) A Grantee may impose different financial terms and conditions on
different subscribers based on rational classifications (for
example, the subscriber's credit history), provided that such
imposition does not violate applicable state or federal law .
56
TITLE III: OPEN VIDEO SYSTEMS
15: Miscellaneous Provisions
(2) Subscriber Privacy.
(A) A Grantee shall at all times protect the privacy rights of all
subscribers, including but not limited to those rights secured by
the provisions of Section 631 of the Cable Act, 47 V.S.C. ~ 551.
(B) A subscriber may at any time revoke any authorization to release
information by delivering to the Grantee in writing, by mail or
otherwise, the subscriber's decision to revoke the authorization.
Any such revocation shall be effective upon receipt by the
Grantee.
(C) A Grantee shall not condition subscriber service on the
subscriber's grant or denial of permission to collect, maintain or
disclose personally identifiable information except to the extent
that such information is necessary for credit check or billing
purposes. A subscriber may at any time revoke any permission
previously given by delivering to the Grantee a written statement
of that intent.
15. Miscellaneous Provisions
(1) No Recourse Against the City. Without limiting such immunities as the
City or other persons may have under applicable law, a Grantee shall have no recourse
whatsoever against the City or its officials, boards, commissions, agents or employees for any
loss, costs, expense or damage arising out of any provision or requirement of this Ordinance or
because of the enforcement of this Ordinance or the City's exercise of its authority pursuant to
this Ordinance, a franchise agreement, or other applicable law, unless the same shall be caused
by criminal acts or by willful or gross negligence.
TITLE III: OPEN VIDEO SYSTEMS
1. Applicability of Ordinance.
(1) In addition to this Title III, Titles I and II of this Ordinance shall apply to
open video systems that comply with 47 V.S.c. ~ 573, to the extent permitted by applicable
law, except that the following sections of Title II shall not apply: ~ 2(1)-2(3) (regarding grant
of franchise), ~ 2(6) (franchise applications), ~ 7 (rate regulation), ~ 8(2) (regarding franchise
fees), ~ 12(1)(A)(i) and -(ii) (certain penalties), ~ 21(4) (franchise termination due to certain
conditions), ~ 13 (transfers).
57
TITLE III: OPEN VIDEO SYSTEMS
2: Application for Open Video System Authorization.
(2) In applying this Ordinance to an open video system, "Grantee" shall be
taken to refer to the open video system operator, "cable system" to the open video system,
"franchise" to any authorization granted by the City to the open video system operator, and
similar terms shall apply similarly.
2. Application for Open Video System Authorization.
(1) A person proposing to use public rights-of-way to install devices for the
operation of an open video system shall first obtain authorization from the City for such use.
Such a person may apply for such authorization by submitting an application containing:
(A) The name and address of the applicant and an identification of the
ownership and control of the applicant, including: the names and
addresses of the ten largest holders of an ownership interest in the
applicant and affiliates of the applicant, and all persons with
three percent or more ownership interest in the applicant and its
affiliates; the persons who control the applicant and its affiliates;
all officers and directors of the applicant and its affiliates; and
any other business affiliation and cable system ownership interest
of each named person.
(B) A detailed description of the physical facilities the applicant
proposes to place in public ways.
(C) Any information that may be reasonably necessary to demonstrate
compliance with the requirements of federal law and with this
Ordinance.
(D) An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the
application and certifying that the application meets all federal
and state law requirements.
(2) The City may, at its discretion and upon request of an applicant, waive
in writing the provision of any of the information required by this Section 2.
(3) An OVS applicant shall reimburse the City for its costs pursuant to Title
I, Section 15 of this Ordinance.
58
TITLE III: OPEN VIDEO SYSTEMS
3: Fee In Lieu of Franchise Fee.
3. Fee In Lieu of Franchise Fee.
An open video system operator shall pay to the City a fee in lieu of and on the same
basis as the franchise fee required in Title II, Section 8 of this Ordinance, pursuant to the
procedures and conditions specified in that Section and generally herein.
4. Public, Educational, and Governmental Access Oblieations.
An open video system operator shall be subject to obligations pertaining to public,
educational, and governmental access pursuant to applicable law and to the requirements
herein.
5. Rieht-of-Way Usaee.
An open video system operator shall be subject to all requirements of state and local
law regarding authorization to use or occupy the public rights-of-way, except to the extent
specifically prohibited by federal law. FCC approval of an open video system operator's
certification pursuant to 47 U.S.c. ~ 573 shall not be taken to confer upon such operator any
authority to use or occupy the public rights-of-way that such operator would not otherwise
possess.
PASSED AND ADOPTED this _ day of
APPROVED:
ATTEST:
City Clerk
59
TITLE III: OPEN VIDEO SYSTEMS
5: Right-of-Way Usage.
APPROVED AS TO FORM:
City Attorney
4253\05\00 I 0724 7.DOC
REVIEWED BY:
City Manager
60
EXHIBIT A
5: Right-or-Way Usage.
EXIDBIT A
INSURANCE SCHEDULE
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR
VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized to
do business in Iowa. All insurers shall have a rating of A of better in the current
A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuque if cancellation is prior to the
expiration date. This endorsement supersedes the standard cancellation
statement on the Certificate of Insurance.
3. A Grantee shall furnish a Certificate of Insurance to the City of Dubuque, Iowa for
the coverage required in Paragraph 6 below. Such certificates shall include
copies of the following policy endorsements:
a) Thirty day notice of cancellation to the City of Dubuque.
b) Commercial General Liability policy is primary and non-contributing.
c) Commercial General Liability additional insured endorsement.
d) Governmental Immunity Endorsements.
e) Waiver of recovery under workers compensation.
4. Each certificate shall be submitted to the contracting department of the City of
Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this agreement.
6. A Grantee shall be required to carry the following minimum coverage/limits or
greater if required by law or other legal agreement:
61
EXHIBIT A
5: Right-or-Way Usage.
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit
Products-Completed Operations Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (anyone occurrence)
Medical Payments
$2,000,000
$1,000,000
$1,000,000
$1,000,000
$ 50,000
$ 5,000
This coverage shall be written on an occurrence, not claims made, form per
location. All deviations or exclusions from the standard ISO commercial
general liability form CG 0001 or Businessowners form BP 0002 shall be
clearly identified.
Governmental Immunity Endorsement identical or equivalent to form
attached.
An additional insured endorsement identical or equivalent to ISO Form CG
2026 or CG 2011 and include as additional insureds: "The City of
Dubuque, including all its elected and appointed officials, all its employees
and volunteers, all its boards, commissions and/or authorities and their
board members, employees, and volunteers."
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
$100,000 each accident
$100,000 each employee-disease
$500,000 policy limit-disease
Policy shall include an endorsement waiving right of recovery
against City of Dubuque.
c) UMBRELLA/EXCESS LIABILITY
$5,000,000
62
EXHIBIT A
5: Right-or-Way Usage.
POLICY NUMBER
COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - DESIGNATED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name of Person Or Organization:
The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all
its boards, commissions and/or authorities and their board members, employees, and volunteers.
(If no entry appears above, information required to complete this endorsement will be shown in the
Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown
in the Schedule as an insured but only with respect to liability arising out of your operations or premises
owned by or rented to you.
CODvriaht. Insurance Services Office. Inc. 1994
CG 20 26 11 85
63
EXHIBIT A
5: Right-of-Way Usage.
CITY OF DUBUQUE, IOWA
(4) GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmentallmmunitv. The insurance carrier expressly agrees and
states that the purchase of this policy and the including of the City of Dubuque, Iowa
as an Additional Insured does not waive any of the defenses of governmental
immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4
as it is now exists and as it may be amended from time to time.
2. Claims Coveraoe. The insurance carrier further agrees that this policy of insurance
shall cover only those claims not subject to the defense of governmental immunity
under the Code of Iowa Section 670.4 as it now exists and as it may be amended
from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be
covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunitv. The City of Dubuque, Iowa shall be responsible
for asserting any defense of governmental immunity, and may do so at any time and
shall do so upon the timely written request of the insurance carrier.
4. Non-Denial of Coveraoe. The insurance carrier shall not deny coverage under this
policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of governmental
immunity unless and until a court of competent jurisdiction has ruled in favor of the
defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Chanoe in Policv. The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
4253\05\00 107247.DOC
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EXHIBIT B
5: Right-of-Way Usage.
EXIDBIT B
FORM OF GUARANTEE
CORPORATE GUARANTY
THIS A GREEMENT is made this _ th day of
("Guarantor") and the City of
("Company").
, 2005 between
("Franchising Authority"),
and
WITNESSETH
WHEREAS, Guarantor is the parent of Company; and whereas, Guarantor has a
substantial interest in the System and the conduct of the Company in complying with the
Franchise and any and all amendments thereof and any agreements related thereto, which
Franchise and amendments are hereby specifically referred to, incorporated herein, and made a
part hereof; and
WHEREAS, the Guarantor desires to provide its unconditional guaranty to fulfill the
faithful payment and performance of the Company's obligations under the Franchise; and
NOW, THEREFORE, in consideration of the foregoing premises and for other good
and valuable consideration, the receipt, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby unconditionally guarantees the due and punctual payment and
performance of all of the debts, liabilities and obligations of Company contained in the
Franchise.
The Agreement, unless terminated, substituted, or canceled, as provided herein, shall
remain in full force and effect for the duration of the term of the Franchise, except as expressly
provided otherwise in the Franchise.
Upon substitution of another Guarantor reasonably satisfactory to the Franchising
Authority, this Agreement shall be terminated, substituted, or canceled upon thirty (30) days
prior written notice from Guarantor to the Franchising Authority and the Company.
Such termination shall not affect liability incurred or accrued under the Agreement
prior to the effective date of such termination or cancellation.
65
EXHIBIT B
5: Right-of-Way Usage.
The Guarantor shall payor reimburse the Franchising Authority for all reasonable costs
and expenses (including reasonable attorneys' fees and legal expenses) incurred by the
Franchising Authority in connection with the protection, defense or enforcement of this
guaranty in any arbitration, litigation or bankruptcy or insolvency proceedings.
The Guarantor will not assert, plead or enforce against the Franchising Authority any
defense of discharge in bankruptcy of the Company, statute of frauds, or unenforceability of
the Guaranty which may be available to the Company or any other person liable in respect of
any Indebtedness, or any setoff available against the Franchising Authority to the Company or
any such other person, whether or not on account of a related transaction.
Any notices given pursuant to this Agreement shall be addressed to the Guarantor and
Company at and the Franchising Authority at
IN WITNESS WHEREOF, the Company, Franchising Authority, and Guarantor have
executed this Corporate Guaranty as of the day, month and year first above written.
GUARANTOR:
By:
Its:
COMPANY:
By:
Its:
FRANcmSING AUTHORITY:
CITY OF
, Mayor
, Clerk
4253\05\00 I 072-l7.DOC
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ARTICLES OF INCORPORATION
OF
MEDIACOM CULTURAL AND CHARITABLE FOUNDATION OF DUBUQUE,
INC.
To the Secretary of State of the State ofIowa:
We, the undersigned. a majority of whom are citizens ofllie United States, acting as
incorporators of a corporation under the Iowa Nonprofit Corporation Act (the "Act"),
adopt the following Articles ofIncorporation for such corporation:
I. The name of the corporation shall be uMediacom Cultural and Charitable
Foundation of Dubuque. Inc."
II. The corporation is organized exclusively for charitable, educational and/or
scientific purposes under section 501(c)(3) of'the mtel11aJ Revenue Code in
Dubuque, Iowa.
III. The address of the initial registered office ot the corporation in the state ofIowa
is 2222 Grand Avenue in the City of Des Moines, County of Polk, and the name
of its initial registered agent at such ~ss is C T Corporation System.
IV. The number of directors constituting the initial board of directors of the
corporation is five, and the names and addresses of the persons who are to serve
as the initial directors are:
NAME
~~~
Kathleen McMullen
Scott Westennan
Lee Ann James
V. The date on which the corporate existence shall begin is . [Note:
The date on which the corporate existence shaD begin may be any date not
more than ninety days in the future. In the absence of a statement in the
articles of such date, the existence shall commence on the date on which the
Secretary of State issues the certificate of Incorporation. Existence cannot
commence prior to date on which the Secretary of State receives the articles.)
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VI. The name and address of each incorporator is:
NAME
ADDRESS
Bruce Gluckman
Charles King
Scott Westerman
VII. The location of the corporation shall be in the City of Dubuque, State of Iowa.
VIII. No part of the net earnings of the corporation shall inure to the benefit of, or be
distributable to its members. directors, or other private persons. except that the
corporation shall be authorized and empowered to pay reasonable compensation
for services rendered and to make payments and distributions in furtherance of the
purposes set forth in Article n hereof. No substantial part of the activities of the
corporation shall be tbe carrying on of propaganda, or otherwise attempting to
influence legislation, and the corporation sball not participate in, Of intervene in
(including the publishing or distribution of statements) any political campaign on
behalf of or in opposition to any candidate for public office. Notwithstanding any
other provision of these articles, the corporation shall not carry on any other
activities, the corporation shall not carry on any other activities not permitted to
be carried on (a) by a corporation exempt from federal income tax under section
501(c)(3) of the Internal Revenue Code (or the eorresponding section of any
future federal tax code) or (b) by a corporation. COIltributions to which are
deductible Wider section 170(c)(2) of the IAtcmat Revenue Code (or the
corresponding section of any future federal taK ~).
IX Upon the dissolution of the corporation, assats'" be distributed for one or more
exempt purposes within the meaning of'section ""(c)(3) of the Internal Revenue
Code (or the corresponding section of any Ntwe. ftder.aI tax code) or shall be
distributed to the federal government. or to a state or local government, for a
public purpose. Any such assets not so dispxed olsllall be disposed of by a
court of competent jurisdiction in the county inwbidt the principal office of the
corporation is then located, exclusively for such pti:l'poses or to such organization
or organizations. as said court shall determine. which are organized and operated
exclusively for such purposes.
2
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Dated April _, 2005
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No. 3356
(Name]
(Name]
(Name]
Incorporators
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BYLAWS
OF
MEDIACOM CULTURAL AND CHARITABLE FOUNDATION OF DUBUQUE. INC.
ARTICLE I
PURPOSES, POWERS AND NON-PROFIT STATUS
Section 1. Purposes. The corporation is organized and shall be operated
exclusively for charitable, educational and/or scientific purposes under section 501(c)(3) of the
Internal Revenue Code (or the corresponding section of any future federal tax code) in Dubuque,
Iowa. Such purposes shall include enhancing the lives of the residents of the City of Dubuque
through funding arts and cultural programs and by supporting the goals of the Dubuque Arts and
Cultural Affairs Advisory Commission.
Section 2. Powers. The corporation shall have the power, directly or indirectly,
either alone or in conjunction or cooperation with others, to do any and aU lawful acts and things
and to engage in any and all lawful activities which may be necessary, or convenient to effect
any or all of the purposes for which the corporation is organized, and to aid or assist other
organizations whose activities are such as to further accomplish, foster, or attain any of such
purposes. The power of the corporation shall include, but not be limited to, the acceptance of
contributions in cash, in kind or otherwise from both the public and private sectors.
Section 3. Restrictions. The assets of the corporation are irrevocably dedicated
to the purposes described above, and no part of the net earnings of the corporation shall inure to
the benefit of, or be distributable to its members, directors, or other private persons, except that
the corporation shall be authorized and empowered to pay reasonable compensation for services
rendered and to make payments and distributions in fur1herance of the purposes set forth in
Section 1 of this Article. No substantial part of the activities of the corporation shall be the
carrying on of propaganda, or otherwise attempting to influence legislation, and the corporation
shall not participate in, or intervene in (including the publishing or distribution of statements)
any political campaign on behalf of or in opposition to any candidate for public office.
Notwithstanding any other provision of these articles, the corporation shall not carry on any
other activities not permitted to be carried on (a) by a corporation exempt from federal income
tax under section 501(c)(3) of the Internal Revenue Code (or the corresponding section of any
future federal tax code) or (b) by a corporation, contributions to which are deductible under
section l70( c )(2) of the Internal Revenue Code (or the corresponding section of any future
federal tax code).
..
ARTICLE II
OFFICES
The principal office of the corporation in the State of Iowa shall be located in the
City of Dubuque. The corporation may have such other offices', either within or without the
State of Iowa, as the Board of Directors may determine or as the affairs of the cOIporation may
require from time to time.
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The corporation shall have and continuously maintain in the State ofIowa a
registered office, and a registered agent whose office is identical with such registered office, as
required by section 504A.8 of the Iowa Code. The address of the registered office may be
changed from time to time by the Board of Directors.
ARTICLE III
MEMBERS
The corporation shall have no members.
ARTICLE IV
BOARD OF DIRECTORS
Section 1. General Powen. The affairs of the corporation shall be managed by
its Board of Directors.
Section 2. Composition, Tenure and Qualifications. The initial Directors, as
named in the Articles ofIncorporation of the Foundation, shall serve until the appointment of
replacement Directors as specified in this section. After the tenn of the initial Directors, The
Board of Directors shall be five, two of whom shall be appointed by the City of Dubuque City
Council and three of whom shall be appointed by MCC Iowa, LLC. Each director shall hold
office for one year from the date of his or her appointment, and shall serve at will until his or her
successor has been appointed and qualified. Notwithstanding any other provision of these by-
laws, no change to the number of directors shall be made except by unanimous approval of all of
the directors ofthe Foundation.
Section 3. Regular Meetings. The Board of Directors may provide by
resolution the time and place, either within or without the State of Iowa, for the holding of
regular meetings of the Board without other notice than such resolution.
Section 4. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the President or any two Directors,. The person or persons
authorized to call special meetings ofthe Board may fix any place, either within or without the
State oflowa, as the place for holding any meeting of the Board called by them.
Section 5. Notice. Notice of any special meeting of the Board of Directors shall
be given at least five business days previously thereto by written notice delivered personally or
sent by mail or telegram to each Director at his or her address as shown by the records of the
corporation. If mailed, such notice shall be deemed to be delivered when deposited in the United
States mail in a sealed envelope so addressed, with postage thereon prepaid. If notice be given
by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. Any Director may waive notice of any meeting. The attendance of a
Director at any meeting shall constitute a waiver of notice ot"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. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board need be specified in the notice or
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waiver of notice of such meeting, unless specifically required by law or by these by-laws.
Section 6. Quorum. A majority of the Board of Directors shall constitute a
quorum for the transaction of business at any meeting of the Board; but if less than a
majority of the Directors are present at said meeting, a majority of the Directors present
may adjourn the meeting from time to time without further notice.
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 of Directors, unless the act of
a greater number of Directors is required by law or by these by-laws.
Section 8. Vacancies. Any vacancy in the Board of Directors created by the
departure of a director originally appointed by the City Council shall be filled by a succeeding
director appointed by the City Council and any vacancy in the Board of Directors created by the
departure of a director originally appointed by MCC Iowa shall be filled by a succeeding director
appointed by MCC Iowa. A Director elected to fill a vacancy shall be elected for the unexpired
term of his or her predecessor in office.
Section 9. Compensation. Directors as such shall not receive any stated salaries
for their services. but by resolution of the Board of Directors a fixed sum and expenses of
attendance, if any. may be allowed for attendance at each regular or special meeting of the Board
not to exceed the sum of $50 for each director for each meeting and further not to ex.ceed the
sum of $600 per year for anyone director; but nothing herein contained shall be construed to
preclude any Director from serving the corporation in any other capacity and receiving
compensation therefor.
Section 10. Informal Action by Directors. Any action required by law to be
taken at a meeting of directors. or any action which may be taken at a meeting of directors. may
be taken without a meeting jf a consent in writing, setting forth the action so taken, shall be
signed by all of the Directors.
ARTICLE V
OFFICERS
Section 1. Officers. The officers of the corporation shall be a President.
one or more Vice Presidents (the number thereof to be detennined by the Board of Directors), a
Secretary, a Treasurer and such other officers as may be elected in accordance with the
provisions of this Article. The Board of Directors may elect or appoint such other officers,
including one or more Assistant Secretaries and one or more Assistant Treasurers, as it shall
deem desirable. such officers to have the authority and perform the duties prescribed, from time
to time, by the Board of Directors. Any two or more offices may be held by the same person,
except the offices of President and Secretary.
Section 2. Election and Term of Office. The officers of the corporation shall be
elected annually by the Board of Directors at the regular annual meeting of the Board of
Directors. If the election of officers shall not be held at such meeting, such election shall be held
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as soon thereafter as conveniently may be. New oftices may be created and filled at any meeting
of the Board of Directors. Each officer shall hold office until his or her successor shall have
been duly elected and shall have qualified.
Section 3. Removal. Any officer elected or appointed by the Board of Directors
may be removed by the Board of Directors whenever in its ju.dgment the best interests of the
corporation would be served thereby, but such removal shall be without preJudice to the contract
rights, if any, ofthe officer so removed,
Section 4. Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired
portion of the term.
Section 5. President. The President shall be the principal executive officer of
the corporation and shall in general supervise and control all of the business and affairs of the
corporation. He or she shall preside at all meetings of the Board of Directors. He or she may
sign, with the Secretary or any other proper officer of the corporation authorized by the Board of
Directors, any deeds. mortgages, bonds, contracts, or other instruments which the Board of
Directors has authorized to be executed, except in cases where ;~he signing and execution thereof
shall be expressly delegated by the Board of Directors or by thc.se by-laws or by statute to some
other officer or agent of the corporation; and in general he or she shall perform all duties incident
to the office of President and such other duties as may be prescribed by the Board of Directors
from time to time.
Section 6. Vice President. In the absence of the President or in event of his or
her inability or refusal to act, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order of their election) shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President. Any Vice President shall perform such other duties as from time to time may
be assigned to him or her by the President or by the Board of Directors.
Section 7. Treasurer. Ifrequired by the Board, of Directors, the Treasurer shall
give a bond for the f'llithful discharge of his or her duties in such sum and with such surety or
sureties as the Board of Directors shall determine. He or she shall have charge and
custody of and be responsible for all funds and securities of the corporation; receive and give
receipts for moneys due and payable to the corporation from any source whatsoever, and deposit
all such moneys in the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions in Article VII of these by-
laws; and in general perform all the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned to him or her by the President or by the Board of
Directors.
Section 8. Secretary. The Secretary shall keep the minutes of the Board of
Directors in one or more books provided for that purpose; see that all notices are duly given in
accordance with the provisions of these by-laws or as required by law; be custodian of the
corporate records and of the seal of the corporation and see that the seal of the corporation is
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affixed to all documents, the execution of which on behalf of the corporation under its seal is
duly authorized in accordance with the provisions of these by-laws; and in general perfonn all
duties incident to the office of Secretary and such other duties as from time to time may be
assigned to him or her by the President or by the Board of Directors.
Section 9. Assistant Treasurers and Assistan~ Secretaries. If required by the
Board of Directors, the Assistant Treasurers shall give bonds for the faithful discharge of their
duties in such sums and with such sureties as the Board of Directors shall determine. The
Assistant Treasurers and Assistant Secretaries, in general, shall perform such duties as shall be
assigned to them by the Treasurer or the Secretary or by the President or the Board of Directors
ARTICLE VI
COMMITTEES
Section 1. Committees of Directors. The Board of Directors, by resolution
adopted by a majority of the Directors in office, may designate and appoint one or more
committees, each of which shall consist of two or more Directors, which committees, to the
extent provided in said resolution, shall have and exercise the authority of the Board of Directors
in the management of the corporation, except that no such comp1ittee shall have the authority of
the Board of Directors in reference to amending, altering or repealing the by-laws; electing,
appointing or removing any member of any such committee or any Director or officer of the
corporation; amending the articles of incorporation) restating articles of incorporation; adopting a
plan of merger or adopting a plan of consolidation with another corporation; authorizing the sale,
lease, exchange or mortgage of all or substantially all of the property and assets of the
corporation; authorizing the voluntary dissolution of the corporation ot revoking proceedings
therefor; adopting a plan for the distribution of the assets of the corporation; or amending,
altering or repealing any resolution of the Board of Directors which by its terms provides that it
shall not be amended, altered or repealed by such committee. The designation and appointment
of any such committee and the delegation thereto of authority shall not operate to relieve the
Board of Directors, or any individual Director, of any responsibility imposed upon it or him or
her by law.
Section 2. Other Committees. Other committees not having and
exercising the authority of the Board of Directors in the management of the corporation
may be appointed in such manner as may be designated by a resolution adopted by a
majority of the Directors present at a meeting at which a quorum is present. Except as
otherwise provided in such resolution, members of each such committee shall be Directors, and
the President of the corporation shall appoint the members thereof. Any member thereof may be
removed by the person or persons authorized to appoint such member whenever in their
judgment the best interests of the corporation shall be served by such removal.
Section 3. Term of Office. Each member of a committee shall continue as such
until the next annual meeting ofthe members of the corporation and until his or her successor is
appointed, unless the committee shaH be sOOner terminated, or unless such member be removed
from such committee, or unless such member shall cease to qualify as a member thereof.
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Section 4. Chairman. One member of each committee shall be appointed
chairman by the person or persons authorized to appoint the members thereof.
Section 5. Vacancies. Vacancies in the membership of any committee may be
filled by appointments made in the same manner as provided in the case of the original
appointments.
Section 6. Quorum. Unless otherwise provided in the resolution of the Board of
Directors designating a committee, a majority of the whole committee shall constitute a quorum
and the act of a majority of the members present at a meeting at which a quorum is present shall
be the act of the committee.
Section 7. Rules. Each committee may adopt rules for its own government not
inconsistent with these by-laws or with roles adopted by the Board of Directors.
ARTICLE VII
CONTRACTS, CHECKS, DEPOSITS AND FIJNDS
Section 1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents of the corporation, in addition to the officers so authorized by these by-
laws, 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 confmed to specific instances.
Section 2. Checks, Drafts, etc. All checks, drafts or orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the corporation, shall be
signed by such officer or officers, agent or agents of the corporation and in such manner as shall
from time to time be determined by resolution of the Board of Directors. In the absence of such
detemlination by the Board of Directors, such instruments shall be signed by the Treasurer or an
Assistant Treasurer and countersigned by the President or a Vice President of the corporation.
Section 3. Deposits. All funds ofthe corporation shall be deposited from time to
time to the credit of the corporation in such banks, trust companies or other depositaries as the
Board of Directors may select.
Section 4. Gifts. The Board of Directors may accept on behalf of the corporation
any contribution, gift, bequest or devise for the general purposes or for any special pUlpose of the
corporation.
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ARTICLE VIII
BOOKS AND RECORDS
The corporation shall keep correct and complete books and records of account and
shall also keep minutes of the proceedings ofits Board of Directors and committees having any
of the authority of the Board of Directors. All books and records of the corporation may be
inspected by any Director, or his or her agent or attorney, for any proper purpose at any
reasonable time.
ARTICLE IX
FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of January and end
on the last day of December in each year; provided that the first fiscal year of the corporation
shall begin on first date of corporate existence of the corporation pursuant to the Articles of
Incorporation of the corporation as filed With the Iowa Secretary of State.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required to be given under the provisions of the Iowa
Non-Profit Corporation Act or under the provisions of the articles of incorporation or the by-laws
of the corporation, 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 the giving of
such notice.
ARTICLE XI
AMENDMENTS TO BY-LAWS
Except as provided in Article IV hereto, these by-laws may be altered, amended
or repealed and new by-laws may be adopted by a majority of the Directors present at any
regular meeting Or at any special meeting, if at least two days' written notice is given of intention
to alter, amend or repeal or to adopt new by-laws at such meeting.
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