Mediacom Franchise Renewal
DUB~E
~~~
MEMORANDUM
April 26, 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. 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.
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.
NI~Ni
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.
.
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Pre parer: Barry A. Lindahl, ESQ. Address: Suite 330 Harbor View Place 300 Main Street
DubuQue,lA 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
;
<
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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
. 18th ApriL
Passed, approved and adopted this day of ,L005.
Attest:
~eanne F. Schneider, City Clerk
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 18thof April ,2005.
tiest: 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 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.
rki~~E
~~~
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 offive 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 distribLite 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 TV.
Franchise and all related ordinances and documents, after a public hearing to be held
on May 2,2005.
l ~~j?
I I / } /
. L/ /2. I I
(lJ~/ (1 vI./ f\
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.
i5UB~E
~~~
MEMORANDUM
April 13,2005
MEMO TO: Michael C. Van Milligen, City Manager
FROM: Merrill Crawford, Cable Franchise Administrato~
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 10waIWestern 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 S1. 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
o4,114APR.14.2005 1:46PM58952DUBUQUE CITY MANAGER~M LEGAL
NO, 9753 P,3/1312
MediacomJ
B"", G~~lcman
Vice Prelid~t of Legal .:I Rt!gula7Pf')I AjJoirs
April 14, 2005
VIA FACSIMILE (@56J-S8,..4149)
AND OVERNlGH'l MAIL
Michael Van Milligan
City Manager
City of Dubuque
City Hall
50 West 131b Street
Dubuque, Iowa 52001
Re: Offer to Renew Cable Televjsion 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:
I. SigliN Franchise Agreement. Accompanying this letter is a signamre psg!! 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 is the document sent to you by Rick Ellrod via email at 10:06 AM EDT this morning.
Since tbe ell)' Council has not yet acted on the Franchise Agreement, MCC Iowa, LLC's
submis..~ion of lhe signature page constitutes an offer which the City may accept. Our offer wilJ
remain open until June 1, 2005 at which time, jf 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 flllalize Exhibit C (bonding
details) and that funher mutually ~c:eprable modificatioD$ 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 Commibnent. By way of this letter, MCC Iowa, LLC commits to
execution of the commiunenl letter substantially in the form of the sample letter accompanying
this letter ("Commitment Leuer"). MCC Iowa. LLC will execute the Commitment Letter at the
same time thar 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 ofMCC Iowa, LLC's renewal offer.
3. Third Street Lease. Also accompanying (his letter is the fonn of the Third Sboeet
Lease Agreement that we have negotiated with Mr, Lindahl. M,CC Iowa, LLC would execute the
MCC Iowa, LLC
100 Crystal Run Road. Middletown, NY 10941. 845-695-26S0-Fax 845.695-2669
04/14APR. 14,2005 1 :46PMsGS52DUBUQUE CITY MANAGERJM LEGH
NO. 9753 p, 4/1312
Michael Vaa Milligan
P.Sf l"f 1
final lease document at the same time j[ accepts the franchise and submits the foundation
commitment leuer.
, ,
H you have any questions about these documents or any of t~~ procedure that we have arranged
rhrough the City's legal team, please contact me immediately. Plea~e also confirm that this matter
has been placed on the April 18. 200S City Council meeting agenda.
Thank you for your assistance.
Sincerely,
GJ~bu-
Bruce Gluckman
BO
cc: Barry Lindahl
Frederick El1rod m
Eric B.-eisach
#.
(2) When any provIsIon 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 Agreement, 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).
(j) 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 terms and provisions of this Agreement, and acknowledges that, to
the best of its knowledge, each provision is lawful and enforceable. If the Grantee believes that
the terms 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 of the conflict.
AGREED TO THIS 2nd DAYOF May
2005
City of Dubuque, Iowa,
a municipal corporation of Iowa
By: N L"AL
City Manager
ATTEST:
~~
ity Clerk
MCC IOWA, LLC,
a Delaware Limited Liability Company
By:a~ hu
Vice-President of Legal and Regulatory Affairs
4253\05\00107246.DOC
39
04/1/APR. 14,20051 1 :46PMs6852DUBUQUE CITY MANAGERoM LEGAL
NO. 9753 P. 6/1312
(Form or CODlmitmenl Letter)
(MCC Iowa, LLC Letterhead)
April ~ 2005
Mediacom Cultural Affair.s 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
Attaclunent A hereto), annually, in advance, commencing and continuing
for fifteen yean, ending ~ _ . The first such payment shall be
This pledge is to be ilTCvocable and a binding obligation upon Mec Iowa, its
suce&ssors and assigns. The City of Dubuque Iowa is an intended third party beneficiary
of the funding obligation set forth in this letter.
MCC IOWA, LLC
By:
Name:
Title:
171439_2
*-~
.w.t:UiG\..Ui. .
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 Informal 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 st 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
programmmg.
. 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
rh7B~
~<k~
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 S1. 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
requ irements.
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. TDDfTTY
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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Preparer: Barry A. Lindahl. ESQ. Address: Suite 330 Harbor View Place 300 Main Street
Dubuque. IA 52001 Telephone: (563) 583-4113
ORDINANCE NO. 28-05
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:
"
>
.. . " .
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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 2nd day of May
,2005.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
Mediacom J
Bruce Gluckman
Vice President of Legal & Regulatory Affairs
April 14, 2005
VIA FACSIMILE (@563-589-4149)
AND OVERNIGHT MAIL
Michael Van Milligan
City Manager
City of Dubuque
City Hall
50 West 13th 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:
1. Signed Franchise Agreement. Accompanying this letter is a signature page executed
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 is the document sent to you by Rick Ellrod 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 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 offer. Please
also be advised that we have worked closely with Attorney Lindahl to finalize Exhibit 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 commitment letter substantially in the form of the sample letter accompanying
this letter ("Commitment Letter"). MCC Iowa, LLC will execute the Commitment Letter at 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 e Middletown, NY 10941 e 845-695-2650eFax 845-695-2669
Michael Van Milligan
Page 2 of 2
final lease document at the same time it accepts the franchise and submits the foundation
commitment letter.
If you have any questions about these documents or any of the procedure that we have arranged
through 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,
C1....hLL--
Bruce Gluckman
BG
cc: Barry Lindahl
Frederick Ellrod III
Eric Breisach
(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 Agreement, 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 terms and provisions ofthis Agreement, and acknowledges that, to
the best of its knowledge, each provision is lawful and enforceable. If the Grantee believes that
the terms 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 of the conflict.
AGREED TO THIS
DAY OF
City of Dubuque, Iowa,
a municipal corporation of Iowa
By:
City Manager
ATTEST:
City Clerk
MCC IOWA, LLC,
a Delaware Limited Liability Company
BY:~/W-O hu _
Vice-President of Legal and Regulatory Affairs
4253\05\00107246.DOC
39
[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 payment shall be
This pledge is to be irrevocable 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 IOWA, LLC
By:
Name:
Title:
171439 2
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
PLAT OF
ADDITION
IOWA, LLC
LOT
2
LOT
I
RAMP PLACE -...
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I
LOT 25
SHOWING
LOT
25
o
CD
50'
WEST THIRD STREET
OF FINLEY HOME'
LEASE OF MCC
COMPL.ETE AREA TO
BE FENCED
SCALE: I" = 40'
· 100'
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ALLEY
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TOWER
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50'
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-
$500,000 policy limit-disease
disease
Policy shall include an endorsement waiving right of
recovery against City of Dubuque.
c) UMBRELLA/EXCESS LIABILITY $5,000,000
COMMERCIAL GENERAL
POLICY NUMBER
LIABILITY
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.
CODvriqht. 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 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 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 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.
A CABLE FRANCHISE AGREEMENT
BETWEEN CITY OF DUBUQUE, IOWA
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
0) 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
0) 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 ....................................... 10
( e) Technical Standards ....................................................................... 10
(t) Interconnection............................................................................ .10
(g) Emergency Alert System ................. ........ ................ ........... ......... ....10
(h) Coordination of Trenching ............................................................... 11
(i) Updating. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
0) 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
(t) 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
(t) 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
(t) Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.40
(g) Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
(h) Captions and References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
(i) Entire Agreement... .. . .. .. . . .. .. .. . . . .. .. .. . . .. .. .. .. . .. .. . .. .. .. . . .. .. . .. .. .. .. .. . .. .. .. .41
G) Understanding and Consent .......... ... ... ..... ............... ............ ...... ........41
IV
CABLE TELEVISION FRANCmSE 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 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 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.
(j) 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(f)(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.
(f) 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:
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(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.
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(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. T~SFERS
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 defmed 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)(I), 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
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(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
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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 5OD-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.
(f) 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 I 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
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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)(1) 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. ~ 53l(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.
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(d) Return Feed From Facilities
(1) The Grantee shall connect the following access ongmation sites by
dedicated fiber-optic upstream feeds to the headend, including both the fiber itself and all
terminal equipment necessary for transmission of the signals for each access channel to be
originated there in accordance with the schedule for connection of I-Net sites attached as
ExhibitB, except for the public access studio, which shall be connected during the first year of
I-Net construction).
(A) Public access studio
(B) Public school central administrative office at The Forum, Chaney
Road
(C) Master control room at Loras College
(D) City Hall Annex
(2) The dedicated connections required by Section 6(d)(1) shall be designed
and built to include all equipment, including but not limited to laser transmitters, receivers,
modulators, and processors, drops and wiring, so that each such center can send signals to the
headend on at least two channels initially and up to two additional channels if additional
downstream channels are activated for PEG use; and so that the facilities can each remotely
and without assistance from the Grantee or access to its headend (i) receive signals from distant
locations; (ii) route signals originated at that center or at other locations onto any of the access
channels on the regular subscriber network; and (iii) otherwise control the signals to allow for
smooth breaks, transitions, insertion of station IDs and other material. Grantee shall bear the
cost of acquiring and maintaining all fiber and equipment necessary to meet this requirement,
except that either the City or the owners of the sites shall be responsible for acquiring and
maintaining the transmission equipment at the studio (as distinct from the headend) end of the
connections for the locations listed in ~~ 6(d)(1)(B), (C), and (D) for the educational and
governmental channels.
(3) Grantee shall ensure that programming received via the upstream feeds is
retransmitted as sent by the PEG programmer, without changing the attributes of the signal in
such a way as to effectively degrade the output. The facilities and equipment provided would
not be adequate if there would be more deterioration on channels set aside for public,
educational and government use on the I-Net or subscriber network than on other channels on
the cable system. Deterioration refers to any signal problem reflected in FCC technical
standards, including, but not limited to, ghost images and other interference, distortions,
degradation of chroma and luminance, and imperfections.
(4) The Grantee shall continue to maintain and operate the existing upstream
connections until the I-Net is fully functional as specified in ~ 6(h)(13) and as such will allow
transmission of PEG programming from the Carnegie-Stout Public Library and the Dubuque
County Courthouse. Grantee shall not be required to provide the transmission equipment for
15
the Carnegie-Stout Public Library and the Dubuque County Courthouse once the City migrates
the upstream feeds from such locations to the I-Net.
(e) Management of Channels
(1) The five access channels shall be managed as follows:
(A) Two public access: by Grantee
(B) One governmental access: by the City
(C) Two educational access: one by the Dubuque Community School
District; one jointly by the other educational institutions in the City
(2) The City may at any time designate one (1) or more entities, including a
non-profit access management corporation, to perform any or all of the following functions:
(A) to manage any Public, Educational, or Government Access
Channel;
(B) to establish policies for the use of access channels and facilities;
and/or
(C) to manage any necessary scheduling or allocation of capacity on
the Institutional Network.
(3) In the event that the City designates an entity other than the Grantee to
manage the Public Access channels, the City will provide all Public Access programming to
Grantee for distribution on Grantee's system simultaneously with distribution of such
programming by any other provider authorized to distribute such programming.
if) Editorial Control: Except as expressly permitted by federal law, the Grantee
shall not exercise any editorial control over the content of programming on the designated
Public, Educational and Governmental Access Channels (except for such programming as the
Grantee may produce and cablecast on such Channels).
(g) Cable Service to Certain Facilities
(1) Upon request of the City, Grantee shall without charge provide one
activated outlet for Cable Service at each school, and each facility owned or leased by the City,
as shall be designated by the City from time to time. For annexed areas, such service shall be
provided in accordance with the line extension requirements set forth in Section 4(a)(3) above.
(2) The institution being served may further distribute within the school or
facility any Cable Service it lawfully receives, consistent with the mission of the institution, at
its own expense.
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(3) The Grantee shall provide Basic Service free of charge to those facilities
specified in Section 6(g)(1) herein. At its sole discretion, the Grantee may also provide higher
levels of service to such facilities free of charge.
(4) The Grantee shall also provide a converter, decoder, or similar
equipment if necessary for user equipment (such as television sets) to receive Basic Service at
each such outlet, with all capabilities or options afforded at a given time by the System.
Grantee shall ensure that all signals are provided at such outlets with sufficient strength that
they can be further amplified to distribute them throughout the site.
(5) The Grantee shall install a maximum 200-foot service drop and maintain
one connection for Internet access to one computer terminal in each school and library within
the Franchise Area. Any additional costs will be borne by the requesting school or library on a
time-and-material basis. All schools and libraries receiving such service will enter into the
Grantee's standard service agreement. In the event that such institutions wish to create an
internal network, the City agrees that such institutions will contact the Grantee for a proposal
to provide such networking, but the institutions shall be under no obligation to accept such a
proposal.
(h) Institutional Network
(1) Definitions. For purposes of this Section 6(h):
(A) "Authorized Users" means those parties identified In section
6(h)(9)(A) .
(B) "Dark Fiber" means fiber optic strands that are capable of
carrying voice, video, and data transmissions but that have not
yet been activated.
(C) "I-Net Coordinator" means a Person designated by the City for
the purposes specified in this section 6(h).
(D) "I-Net Service Area" means the area specified In section
6(h)(2)(E) .
(E) "Institutional Network" or "I-Net" means a fiber-optic network
related to the Grantee's cable system that is to be designed and
constructed by the Grantee and is not generally available to
subscribers of the Grantee's cable system.
(F) "Primary Contact" means those Persons indicated In section
6(h)(9)(B).
(G) "Work" means whatever is required of the Grantee to perform
and complete its duties under this Section. The term does not
17
refer to activities of the Grantee required to perform and
complete its duties under other Sections of this Franchise
Agreement, including but not limited to construction of
subscriber network facilities.
(2) Fiber Construction
(A) The Grantee will construct the I-Net at the Grantee's expense,
linking the public, educational and governmental facilities in the
City itemized on Exhibit B, in accordance with the conditions set
forth in this Franchise Agreement.
(B) The I-Net shall be a bidirectional, fully fiber-optic network
designed and constructed with single-mode fiber, in a design so
that each of the designated service locations can originate and
receive fully interactive video, data and voice signals.
(C) The Grantee shall install I-Net fiber to specified sites as
designated and described in Exhibit B. The main ring shall have
twelve fibers, with six fibers to sites not on the ring (where
Exhibit B indicates which sites are on the ring).
(D) The Grantee shall collocate I-Net fiber with subscriber network
fiber whenever reasonably feasible based on cable industry
practices. The I-Net fibers shall be separate from any fibers
utilized for the subscriber network, and the City shall have only
such rights in the I-Net fibers as are set forth in Section 6(h)(6).
(E) I-Net fibers shall be terminated and labeled using industry
standard connectors in an area specified in the I-Net design
described in ~ 6(h)(3) within the headend facility (the "I-Net
Service Area"). The I-Net Service Area shall have space for four
standard nineteen-inch racks for the I-Net Users' use in a secure
building, sufficient heating and air conditioning. -48 V DC and
120 V AC power shall be available for the I-Net Service Area,
including backup power as specified for the system generally.
(F) The Grantee shall have personnel available to provide City
personnel with access to its I-Net Service Area from 8 a.m. to 6
p.m. each business day, and at all other times shall have
personnel available by mobile telephone to provide City with
access within ninety (90) minutes of a call from a Primary
Contact.
(G) Single-mode fibers will be built to each I-Net site as designated in
Exhibit B. At each I-Net site, at the City's option, either (i)
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fibers shall be terminated using industry standard connectors at a
demarcation point to be agreed upon by the Grantee and the User
up to fifteen feet inside the building entry wall and consistent
with the Grantee's direction of approach to the building,
consistent with the FCC's rules as amended from time to time
(the "Demarcation Point"), or (ii) the Grantee shall provide a coil
of fiber-optic cable, without termination or connector, of a length
reasonably requested by the User to permit the User or the
facility owner to bring the connection further inside the building
beyond that Demarcation Point in accordance with normal
industry practice. Any I-Net fiber starting at the Demarcation
Point and extending outward from the building shall be deemed to
be on the Grantee's side of the Demarcation Point, and any I-Net
fiber starting at the Demarcation Point and extending further
inside the building shall be deemed to be on the user's side of the
Demarcation Point. The City shall specify the Demarcation Point
in writing to the Grantee for each I-Net site listed in Exhibit B at
least 90 days prior to the commencement of construction for each
such site.
(H) The fiber-optic plant shall be installed to industry standards. In
no case shall fiber losses exceed 0.35 dB/km. at 1310 nm, and
0.25 dB/km. at 1550 nm. Splices shall not exceed 0.1 dB per
splice, and connectors shall not exceed 0.75 dB per connector
pair. Maximum signal loss for any link shall not exceed the
manufacturer's passive cable attenuation specifications, adjusted
for cable lengths, splice loss and connector loss. The Grantee
shall provide documentation of acceptance testing pursuant to
~ 6(h)(4).
(I) Grantee shall maintain the I-Net fiber plant at a high level of
reliability and will ensure that such I-Net fiber plant does not
have an unreasonable number of outages as compared with other
fiber-based institutional networks provided by cable operators
pursuant to cable franchises.
(i) The fiber I-Net shall be considered as experiencing an
"outage" when any Grantee-provided fiber optic network
component or Grantee-provided interconnect precludes or
substantially impairs the transmission of information on
the I-Net or a portion thereof.
(ii) " Outage" conditions shall not include (A) scheduled
preventive maintenance as long as the City's I-Net
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Coordinator is notified at least five business days III
advance, or (B) force majeure.
(J) Aerial cable for the I-Net may be installed free-standing or
overlashed to existing strand. New underground fiber optic cable
shall be buried in conduit such as that composed of concrete,
PVC pipe, or polyethylene pipe.
(K) The Grantee shall begin construction of the I-Net within three
months after the Effective Date. Grantee shall complete
construction of the I-Net plant by the end of eighteen (18) months
after the Effective Date. Construction of the sites designated as
Core/Ring sites in Exhibit B shall be completed within one year
after the Effective Date.
(L) In addition to the sites specified in Exhibit B, if the City agrees
by one year after the Effective Date to provide half the cost of
construction to the four additional sites as specified below, and by
eighteen months after the Effective Date actually provides half the
cost of construction to the Grantee, the Grantee shall in the same
way connect those sites to the I-Net within two years after the
Effective Date. The four additional sites are:
(i) Army/Navy Reserve, 10763 Airport Road (type of use:
R, fibers: 6)
(ii) Army Corps of Engineers, Lock and Dam #11 Eagle
Point Drive (type of use: R, fibers: 6)
(iii) National Guard, 195 Radford Road (type of use: R,
fibers: 6)
(iv) U.S. Coast Guard, 60 East First Street (type of use: R,
fibers: 6)
(M) All I-Net wiring on the User's side of the Demarcation Point and
all I-Net electronics are the sole responsibility and property of the
User, provided, however, that the City may use monies from the
PEG Capital Support Fund at its discretion for such wiring and
electronics. All costs associated with locating or repairing any
failure which is reported to the Grantee but which subsequently is
determined to have occurred on the User's side of the
Demarcation Point shall be paid for by the User, except to the
extent that the Grantee's negligence or intentional misconduct
caused such failure.
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(N) All costs associated with locating or repairing any failure which is
determined to have occurred on the Grantee's side of the
Demarcation Point shall be the responsibility of the Grantee
pursuant to Section 6(h)(8), except to the extent that the User's or
the City's negligence or intentional misconduct may adversely
affect such equipment and facilities have caused such failure.
(3) Coordination of Design and Construction of I-Net
(A) The Grantee shall perform continuity tests for I-Net segments in
phases as construction is completed.
(B) The Grantee shall submit detailed site plans for design and
construction of each I-Net segment consistent with ExhibitB at
least forty-five days prior to the anticipated start of construction
on that segment. The City shall review and approve such detailed
site plans at least ten days before the anticipated start of
construction of that segment, and before the Grantee begins actual
construction of the segment. Such approval shall not be
unreasonably withheld.
(C) The I-Net design shall include specification of the industry
standard connectors to be used and the demarcation points for all
I-Net sites.
(D) The Grantee shall coordinate its design and construction planning
with the City so that, in addition to the notice provided to the
City pursuant to the system design submission process generally,
the City shall have as much notice as reasonably possible so that
it can plan for activation and use of the I-Net as the Grantee
builds out the I-Net fiber.
(E) The City shall notify the Grantee in writing prior to the activation
of any I-Net segment.
(4) Acceptance. Construction standards shall be as specified in the
Ordinance. The acceptance procedure for each I-Net site is as follows: ten (10) business days
in advance of testing, the Grantee shall inform the I-Net Coordinator of any continuity test.
The City shall have the option to be present at the test. The Grantee shall perform the test
after terminating the fibers on both ends and will conduct the test from the connector output at
both 1310 nm and 1550 nm using an optical time-domain reflectometer (OTDR) from both
ends of the fiber (at the user site and at the headend or aggregation site). The Grantee shall
submit the continuity test results to the City; the City may require re-testing of the segment if it
is not satisfied with the results of the Grantee's tests. The results shall be deemed accepted if
the City does not object to such results within ten (10) business days.
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(5) Warranty. The fiber installed by the Grantee pursuant to this Section
shall be warranted against defects in materials and workmanship for 12 months after
acceptance. This warranty is in addition to, and does not relieve the Grantee from, its
maintenance responsibilities pursuant to Section 6(h)(8).
(6) Indefeasible Rights of Use
(A) The City shall possess the indefeasible right to use fiber optic
plant dedicated to the I-Net and any extensions or replacements
thereof installed by the Grantee, subject only to such mechanic's
or other liens as Grantee may have pursuant to state law (the
"Indefeasible Rights of Use"). The Indefeasible Rights of Use
shall be coterminous with this Franchise Agreement.
(B) In order to protect the City's right to continue using the
Institutional Network pursuant to this Franchise Agreement, the
Grantee shall cooperate with the City in recording its indefeasible
right of use interest in the fibers as defined in this Franchise
Agreement with the State Department of Assessments and
Taxation, the City Clerk, or such other office as may be
appropriate.
(7) Disposition of I-Net. Upon termination of this Franchise Agreement,
the City shall have the option to purchase the I-Net from Grantee at a price determined as
follows:
(A) Beginning upon expiration of the fifteen-year Term of the
Franchise Agreement, provided such Franchise Agreement is not
terminated or revoked prior to that date, the purchase price shall
be an amount equal to the net book value of the I-Net as
measured by the cost of the I-Net less the accumulated
depreciation of the I-Net assets with both cost and accumulated
depreciation computed in accordance with Generally Accepted
Accounting Principles and consistent with the amounts and
methodologies used to report the same to shareholders ("Net
Book Value"); or
(B) If the Franchise Agreement is terminated or revoked in
accordance with the terms of this Franchise Agreement and
Ordinance prior to the expiration of its Term, the purchase price
shall be an equitable amount taking into consideration the value of
the I-Net to the City and other Authorized Users, but in no event
less than the Net Book Value as of the date of termination or
revocation.
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(8) Maintenance. The Grantee shall maintain, repair and, as necessary,
replace I-Net fiber plant on the Grantee's side of the Demarcation Point in accordance with the
following procedures and conditions:
(A) Preventive and Routine Maintenance. The Grantee shall perform
routine and preventive maintenance on I-Net plant in the same
time and in the same fashion as routine and preventive
maintenance are performed for the subscriber network, without
charge to the City or other Users. In the course of performing
routine and preventive maintenance, the Grantee shall use its best
efforts to identify potential trouble conditions warranting repair
or replacement of I-Net plant not bundled together with
subscriber network plant. The Grantee and the City shall as
promptly as practicable report potential trouble conditions to the
other party.
(B) Outage Categories. Response and restoration times are
determined by the category of service outage as follows:
(i) Critical Outage: Loss of service to one of the fiber routes
feeding a critical facility. A maximum of twenty-five
such critical fiber routes will be designated by the City by
written notice to the Grantee after the Effective Date and
before completion of the I-Net. The City may
subsequently change which fiber routes are designated
critical, as long as the total number does not exceed the
maximum of twenty-five specified above. Any such
change shall be provided by the City to the Grantee in
writing.
(ii) Major Outage: Total loss of service to an I-Net site other
than one listed as critical pursuant to Section 6(h)(8)(B)(i).
(iii) Minor Outage: Loss of service on a single fiber to any 1-
Net site where any traffic can be placed immediately on
another fiber at that site. If it is not possible to reroute
traffic in this way immediately, the outage is a Major
Outage.
(iv) Service Interruption: Reduction in signal throughput to
the point where the signal on a circuit falls below
acceptable standards.
(C) Response to Outages. The response time (the point at which the
Grantee is engaged in restoration of service) for all Service
Outages, whether reported to the Grantee by the User or
23
independently identified by the Grantee, shall be as specified in
Section 6(h)(8)(F). Upon identification of a Service Outage, the
Grantee shall, within such response time, have qualified
personnel on site to investigate the outage, assess the cause and
commence necessary repairs. To the extent that necessary repairs
resulting in restoration of connectivity on the I-Net can be
immediately accomplished, the Grantee shall effect such repairs
in connection with its investigation of the cause of the Service
Outage. To the extent that repairs cannot be immediately
effected, the Grantee shall, within the response time, inform the
City I-Net Coordinator of the apparent cause of the Service
Outage, the anticipated time for restoration of connectivity.
(D) Restoration of Service.
(i) The Grantee shall, to the maximum extent practicable,
effect restoration of connectivity of any category of
service involving I-Net plant that is bundled together with
subscriber network plant at the same time as restoration of
co-located subscriber network plant.
(ii) The Grantee shall effect restoration of connectivity of 1-
Net plant that is not bundled together with subscriber
network plant as promptly as practicable within the
estimated restoration times reported to the City pursuant
to Section 6(h)(8)(F) and shall use its best efforts to effect
such restoration within the service objectives set forth in
Section 6(h)(8)(F).
(iii) In the case of a Service Outage involving more than one
category of Service Outage or multiple service outages
involving more than one category of Service Outage, the
Grantee shall restore connectivity in the order specified in
Section 6(h)(8)(B), or such other order of priority as the
City reasonably requires. In all cases involving Service
Outages resulting from I-Net plant that is bundled together
with subscriber network plant, the Grantee shall effect
restoration of connectivity of any category of service
involving I-Net plant that is bundled together with
subscriber network plant at the same time as restoration of
co-located subscriber network plant.
(E) Cost of Maintenance. The Grantee shall provide maintenance for
I-Net fiber plant without any charge to the City or any other
Authorized User, except for any maintenance required due to any
24
negligence or intentional misconduct of the City or any other
Authorized User.
(F) Response and Restoration Times. For response and restoration of
service as specified in Sections 6(h)(8)(B)(iv) and 6(h)(8)(D), the
Grantee shall respond as soon as practicable, but within the
following time frames, commencing from the time the Grantee (i)
obtains actual knowledge of the problem or (ii) receives notice of
the problem from the I-Net Coordinator (collectively "Notice").
All permanent repairs shall be completed within thirty (30) days
after Notice, unless otherwise agreed to by the City.
(i) Critical Outage: Response on site within two hours after
Notice, minimum temporary repair (fully operational
connectivity, end to end) completed within four hours
after Notice.
(ii) All other (Major Outage, Minor Outage, and Service
Interruption): Response within two hours after Notice
between 8 a.m. and 6 p.m. on business days and four
hours after Notice otherwise; temporary repair completed
within eight hours after Notice.
Where, for reasons beyond the Grantee's control, restoration of
service or permanent repair cannot be completed in the above
time periods even with the exercise of all due diligence (for
example, where the Grantee is delayed in obtaining access to
poles or conduits or facilities), the Grantee shall complete the
restoration of service in the shortest time practicable and
permanent repair within thirty (30) days of completion of a
temporary repair.
(G) For purposes of this Section 6(h), the term "Maintenance" shall
mean any action required to restore physical fiber optic
connectivity on the Grantee's side of the Demarcation Point to the
performance standards specified in Section 6(h)(2).
(H) If any fiber optic cable in which the City has an Indefeasible
Right of Use should be cut or damaged, and the responsible party
is identified, then the City shall support the Grantee's claims for
damages against the responsible party.
(I) In the event that a Primary Contact or designee requests on-site
service from Grantee and Grantee responds on-site and
determines that the I-Net is functioning properly on Grantee's
25
side of the demarcation point, such trouble call shall be deemed a
"False Trouble Report." After an Authorized User accumulates
four False Trouble Reports in one calendar year, Grantee may
charge, and the City shall require Authorized User to pay, a
False Trouble Report Fee in an amount not to exceed $50 each
for the fifth through eighth False Trouble Report in the same
calendar year and an amount not to exceed $100 each for each the
ninth and each additional False Trouble Report in the same
calendar year.
(9) Use
(A) The parties authorized to use the I-Net ("Authorized Users")
shall be, to the extent approved by the City:
(i) those entities for which I-Net sites will be constructed
pursuant to Exhibit B;
(ii) Additional local, state and federal government entities,
educational entities (including but not limited to schools
and museums), and entities jointly approved by the City
and Grantee, that have executed agreements with the City
which include commitments for non-commercial use of the
I-Net and are subject to the same restrictions as are
similar entities pursuant to sections 6(h)(9)(C), 6(h)(9)(D),
and 6(h)(9)(E).
(B) The City shall require all Authorized Users to provide the City
and Grantee name and contact information for a "Primary
Contact," including 24-hour telephone contact information, and
to timely update such information as it changes from time to time.
The Primary Contact shall have primary responsibility for
providing access to Grantee as necessary for Grantee to assess,
repair or perform corrective measures at I-Net locations. Unless
otherwise specified by the City from time to time, the Primary
Contact for all City I-Net sites shall be the I-Net Coordinator.
(C) The City shall not use, or permit any Authorized User to use, the
I-Net for resale or for commercial purposes. "Commercial" use
does not include (by way of example and without limitation)
Internet access by Authorized Users, or Internet access by
visitors to public libraries.
(D) Those Authorized Users designated as "Restricted" ("R") or as
"Emergency" ("E") in Exhibit B, such as Iowa state sites and
colleges, may not use the I-Net on a regular basis for
26
communications that travel over facilities that are not part of the
I-Net or of the institution's own internal network, except that use
for reception and/or distribution of noncommercial public service
content shall not be restricted.
(E) Those Authorized Users designated as "Emergency" ("E") in
Exhibit B, such as hospitals, may use the I-Net only for
community emergency purposes, including emergency readiness.
(F) Prior to permitting any Authorized User to connect to and/or use
the I-Net, the City shall obtain a written agreement with such
Authorized User that prohibits commercial use of the I-Net or
any use inconsistent with this Franchise Agreement. Grantee
shall be an intended third-party beneficiary of such agreements.
City shall have the primary obligation to enforce such
agreements.
(G) In the event that City learns that an Authorized User's use of the
I-Net is in conflict with the restrictions contained in this
Franchise Agreement, City shall: (1) promptly provide written
notice to Grantee, stating with specificity the identity of the
Authorized User and the nonconforming use; (2) promptly serve
written demand on Authorized User to cease and desist such use;
and (3) if the Authorized User fails to comply with such cease
and desist demand, disconnect or disable such Authorized User's
access to the I-Net.
(H) The Grantee shall have no control, responsibility or liability for
the signals distributed over the fiber optic components of the 1-
Net by the City or other Authorized Users or for their benefit.
(I) The I-Net obligations included in this Agreement do not create
any rights in or enforceable by any Authorized Users, or other
Persons, other than the City.
(1) The conditions specified in this Section 6(h)(9), and generally in
this Section 6(h), shall not apply to any facilities or equipment
other than the dark fiber constructed by the Grantee pursuant to
Section 6(h)(2), except to the extent and during the period that
such other facilities or equipment are connected to and operating
in conjunction with the dark fiber constructed by the Grantee
pursuant to Section 6(h)(2).
(10) Security. The Grantee shall not in any way compromise the physical,
optical, electronic, or signal transmission security of Authorized User communications
transmitted over the I-Net, except as required by law.
27
(11) Subcontractors
(A) A subcontractor is an entity which has a direct contract with the
Grantee to perform a portion of the Work.
(B) The Grantee shall not enter into a subcontract with a proposed
subcontractor with reference to whom the City has made timely
and reasonable objection. The Grantee shall not be required to
subcontract with any party to whom the Grantee has objection.
(12) IeN Links
(A) The Grantee shall continue to maintain and operate all existing
links to the Iowa Communications Network ("ICN"), as such
links were in operation on January 1, 2005, without charge to the
City, any ICN user or other party, as long as Grantee is not
charged for such links by ICN.
(B) Nothing in this Agreement shall be construed to prevent the City
from installing additional links to the ICN, at its own expense, or
from interconnecting such links with the I-Net as long as any
such interconnection is consistent with the requirements related to
use of the I-Net specified herein.
(13) Current I-Net
(A) The Grantee shall continue to maintain and operate the existing
Institutional Network as it exists as of January 1, 2005, until the
City switches all its current institutional network operations to the
I-Net.
(B) The Grantee shall assist the City in migrating its existing
institutional network applications to the I-Net.
(14) Other Provisions
(A) If the Grantee performs any of the Work knowing it involves a
recognized and material error, inconsistency or omission in this
Section without notice to and approval of the City, the Grantee
shall bear the cost of correction. If the City permits the Grantee
to perform any of the Work knowing it involves a recognized and
material error, inconsistency or omission in this Section without
notice to and approval of the Grantee, the City shall bear the cost
of correction. The Grantee's provision of its plans to the City
shall not be construed to render the City responsible for the
Grantee's planning or execution of the Work or for detecting any
28
errors, inconsistencies, or omissions therein, except to the extent
specifically set forth herein.
(B) The Grantee shall be required to obtain, but shall not be required
to pay for, City permits, fees and licenses required solely for the
I-Net. The Grantee shall comply with all lawful requirements
applicable to the Work and shall give and maintain any and all
notices required by applicable law pertaining to the Work.
(C) The Grantee shall supervise and direct the Work, using the
Grantee's skill and attention in accordance with accepted
construction industry practices. The Grantee shall be solely
responsible for and have control over design and construction
means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work under this Section, unless
this Section provides for other specific instructions concerning
these matters.
(D) The Grantee shall keep the work areas related to the Work
reasonably clean of debris generated by the Grantee during
performance of the Work. Upon [mal completion of Work, the
Grantee shall clean its work areas and remove all waste generated
by the Grantee therefrom.
(E) The Grantee shall take all reasonable steps to provide access for
the City to the Work when requested, provided, however, that
such access shall not unreasonably impede efforts of the Grantee,
its subcontractors or others engaged in the Work.
(F) The indemnification, insurance, and other right-of-way
management provisions of the Ordinance and this Franchise
Agreement shall apply to the Work carried out by the Grantee
under this Section (as distinct from the performance of the I-Net).
(15) I-Net Equipment. The purchase and maintenance of all I-Net
equipment necessary to activate the fiber-optic network described in this section 6(h) shall be
the responsibility of the City and other Authorized Users.
(i) Costs and Payments Not Franchise Fees: The parties agree that any costs to the
Grantee associated with the provision of support for PEG access pursuant to this Agreement,
and any payments made to the City pursuant to Section 6 of this Agreement, do not constitute
and are not part of a franchise fee, and fall within one or more of the exceptions to 47 U.S.C.
~ 542. The facilities, equipment and capacity provided for PEG use shall be available at no
charge to users, including the City or the entity that manages the channel.
29
7. FRANCmSE FEE
(a) Payment to City
(1) Each year, as compensation for use of Public Rights-of-Way, the
Grantee shall pay to the City a Franchise fee of five percent of Gross Revenues.
(2) For each whole or partial year that this Agreement or any extension
thereof is in effect, the franchise fees due to the City shall be calculated on an annual basis
corresponding to the City's fiscal year. The Grantee shall make its payment of franchise fees
on the first day of the fiscal year for which the fees are calculated and due.
(3) The amount due on the first day of the fiscal year shall be no less than
ninety (90) percent of the total franchise fees anticipated to be due for that year, as determined
by the City ninety (90) days prior to the beginning of the applicable fiscal year and
communicated to the Grantee.
(4) No later than the twentieth day after the end of each fiscal quarter, the
Grantee shall report to the City, in such detail as the City may require, its gross revenues for
the fiscal quarter immediately preceding, and shall remit therewith the amount by which any
fee due for that quarter exceeds twenty-five percent (25 %) of the amount paid on the first day
of that fiscal year. In the event the amounts paid the City during the fiscal year exceed the
total amount due for that fiscal year, the excess shall be refunded to the Grantee within twenty
(20) days after the filing of its fourth quarterly report and its giving the City notice that a
refund is due.
(5) All payments due the City shall be made and delivered to the office of
the City Manager or his designee, no later than noon local time of the date due, or, if those
offices are closed on that day, no later than noon local time on the next day such offices are
open for business.
(b) Final Payment: Upon the termination, transfer, sale, or revocation of this
Agreement, the Grantee shall immediately submit to the City Manager a financial statement
showing the Gross Revenues of the Grantee for the time elapsed since the last quarter for
which the Grantee has paid in full to the City the required franchise fees. The Grantee shall
pay to the City all fees due not later than thirty (30) days following such termination, but prior
to the termination of its performance bond.
(c) Supporting Information: Each Franchise fee payment shall be submitted with
supporting detail and a statement certified by the Grantee I s chief financial officer or an
independent certified public accountant, reflecting the total amount of monthly Gross Revenues
for the payment period and a breakdown by major revenue categories (such as basic service,
cable programming service, premium service, etc.). The City shall have the right to require
further reasonable supporting information.
30
(d) Late Payments: In the event that any payment due the City is not made on or
before the applicable due date and hour fixed in any section of this Agreement, the payment
shall be considered delinquent and in violation of this Agreement, and shall be subject to the
remedies and procedures outlined in Section 9. In addition, the Grantee shall pay interest
charges computed from such due date, at an annual rate equal to the commercial prime interest
rate of the City's primary depository bank during the period such unpaid amount is owed. The
interest shall be treated as a cost incidental to enforcing the franchise.
(e) Audit
(1) The City shall have the right to inspect and copy records and the rights
to audit and to recompute any amounts determined to be payable under this Agreement,
whether the records are held by the Grantee, an Affiliate, or any other entity that collects or
receives funds related to the Grantee's operation in the City, including, by way of illustration
and not limitation, any entity that sells advertising on the Grantee I s behalf.
(2) The Grantee shall be responsible for making available to the City for
inspection and analysis all records necessary to confirm the accurate payment of Franchise
fees, without regard to by whom they are held. The Grantee shall maintain such records for
the term of its Franchise Agreement, and any renewals or extensions thereof.
(3) The City's audit expenses shall be borne by the City unless the audit
discloses an underpayment in total of at least five percent, after taking into account payments
resulting from the quarterly true-ups pursuant to section 7(a)(4), in which case the costs of the
audit shall be borne by the Grantee as a cost incidental to the enforcement of the Franchise.
Any additional amounts due to the City as a result of the audit shall be paid within thirty (30)
days following written notice to the Grantee by the City of the underpayment, which notice
shall include a copy of the audit report. If recomputation results in additional revenue to be
paid to the City, such amount shall be subject to interest as specified in Section 7(d).
(4) The Grantee shall maintain its fiscal and financial records and have all
relevant fiscal and financial records maintained by others on its behalf in such a manner as to
enable the City to determine Gross Revenues.
8. LIABILITIES
(a) Indemnification by the Grantee. The Grantee shall indemnify the City against
any third-party action against the City arising out of the Grantee's negligence or intentional
misconduct. The Grantee shall not be required to indemnify the City for the negligent or
intentionally wrongful acts of the City, its officials, boards, commissions, agents or
employees. This provision shall not be construed to grant a right of action to any third party.
(b) Indemnification by the City. The City shall indemnify the Grantee against any
third-party action against the Grantee arising out of the City's negligence or intentional
31
misconduct. The City shall not be required to indemnify the Grantee for the negligent or
intentionally wrongful acts of the Grantee, its officers, boards, agents or employees. This
provision shall not be construed to grant a right of action to any third party .
(c) Indemnification Procedures. The City or Grantee, as the case may be
("Indemnified Party"), shall promptly notify the party against whom indemnification under this
Agreement is sought (the "Indemnifying Party"), in writing, of any claim for indemnification,
specifying in reasonable detail the nature of the loss, and, if known, the amount, or an estimate
of the amount, of the liability arising therefrom. The Indemnifying Party may within ten (10)
days after receiving such notice provide the Indemnified Party with written notice that it will
assume defense of the matter. The Indemnified Party may also participate in this defense
directly, at its own expense. The Indemnifying Party shall not be liable for any settlement of
any such claim effected without its prior written consent, which shall not be unreasonably
withheld; provided that if the Indemnifying Party does not actually assume the defense of a
claim within thirty days after notice thereof, the Indemnified Party may settle or defend such
claim without the consent of the Indemnifying Party. The Indemnifying Party, if it assumes
the defense of a claim, shall not settle such claim without the prior written consent of the
Indemnified Party, which shall not unreasonably be withheld.
(d) Respondeat Superior. Any contractor or subcontractor performing for the
Grantee in the service area of this Franchise Agreement shall be deemed to be an agent of the
Grantee, and the Grantee shall be responsible and liable for the acts of the contractor or
subcontractor and its employees while so performing for the Grantee.
9. PERFORMANCE GUARANTEES AND REMEDIES
(a) Performance Bond
(1) Grantee shall obtain and maintain during the entire term of the
Franchise, and any renewal or extensions thereof, except as provided in Section 9(b) or 9(a)(3)
below, a performance bond in the City's favor, in the amount of $250,000, to ensure the
Grantee's faithful performance of its obligations and payment of any sum due to the City
pursuant to this Franchise Agreement or Ordinance. The bond shall be substantially in the
form provided in Exhibit C.
(2) The performance bond shall be issued by a surety with an A-lor better
rating of insurance in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to
the approval of the City, consistent with the parameters contained in this section 9; and shall
contain the following endorsement:
"This bond may not be canceled, or allowed to lapse, until
sixty (60) days after receipt by the City, by certified mail, return
receipt requested, of a written notice from the issuer of the bond
of intent to cancel or not to renew. "
32
(3) Reduction of Bond. Upon written application by the Grantee, the City
may, at its sole option, in writing, permit the amount of the bond to be reduced or waive the
requirements for a performance bond. Reductions granted or denied upon application by the
Grantee shall be without prejudice to the Grantee's subsequent applications or to the City's
right to require the full bond at any time thereafter. However, no application shall be made by
the Grantee within one (1) year of any prior application.
(b) Letter of Credit
(I) In addition to the performance bond required under Section 9(a), the
Grantee may file and maintain with the City an irrevocable letter of credit from a financial
institution licensed to do business in Iowa in the amount of $25,000, to serve the same
purposes as set forth therein. The form and content of the letter of credit shall be approved by
the City.
(2) The Grantee and its surety shall be jointly and severally liable under the
terms of the letter of credit as specified in Section 9(a).
(3) The letter of credit shall provide for thirty (30) days' prior written notice
to the City of any intention on the part of the Grantee to cancel, fail to renew, or otherwise
materially alter its terms.
(4) The letter of credit shall be released only upon expiration of the
Franchise or upon the replacement of the letter of credit within the time specified herein.
(c) Rights Cumulative: The rights reserved to the City herein are in addition to all
other rights of the City, whether reserved herein or authorized by applicable law, and no
action, proceeding, or exercise of a right with respect to such performance bond or letter of
credit will affect any other right the City may have, provided that to the extent that penalties
are applied to a Grantee under this Section I2( I), a Grantee shall not be subject to liquidated
damages payable to the City for the same violation. Neither the filing of a letter of credit with
the City, nor the receipt of any damages recovered by the City thereunder, shall be construed
to excuse faithful performance by the Grantee or limit the liability of the Grantee under the
terms of its Franchise for damages, either to the full amount of the letter of credit or
otherwise.
(d) Procedures for Remedying Violations
(1) Notice of Violation. To apply remedies for any failure to comply with
this Franchise Agreement or the Ordinance, the City shall notify the Grantee in writing of the
exact nature of such alleged noncompliance.
(2) The Grantee's Right to Cure or Respond. The Grantee shall have the
period of time listed in section 9(d)(3): (A) to respond to the City, contesting the assertion of
such noncompliance; or (B) to cure such default; or (C) in the event that, by the nature of such
default, it cannot be cured within the cure period specified in section 9(d)(3), to initiate
33
reasonable steps to remedy such default and notify the City of the steps being taken and the
projected date that they will be completed.
(3) Cure Periods. Grantee shall have the following period of time to
implement the measures listed in section 9(d)(2), above:
(A) For any breach of this Franchise Agreement that poses an actual
imminent threat of serious personal injury or property damage:
no cure period.
(B) For failure to timely make franchise fee payments required by
section 7: Two business days from the date such payment was
due.
(C) For any other breach of this Franchise Agreement or Ordinance
not listed above: fifteen (15) calendar days after Grantee's
receipt of written notice pursuant to Section 9(c)(2), unless the
City shows that a different time period is justifiable.
(4) Initial Violation. The City shall not impose penalties or liquidated
damages for the Grantee's first violation, during the period during which this Franchise
Agreement is in effect, of any of the following provisions of this Agreement or the Cable
Ordinance, although the Grantee shall nonetheless be required to comply with such provisions:
(A) Agreement section 4(a) (line extension);
(B) Agreement sections 5(a)-5(h), 5(j) (system facilities, other than
the updating fund);
(C) Agreement sections 6(a)-6(h)(4), 6(h)(8), 6(h)(1l)-6(h)(14) (PEG
requirements, except for certain general I-Net requirements);
(D) Agreement sections 7(a), 7(c)-7(e) (franchise fees, except for a
one-time final payment);
(E) Agreement section 8 (liabilities);
(F) Agreement sections 9(a)-9(b) (performance bond and letter of
credit);
(G) Ordinance, Title I sections 9-14 (construction and related
provisions)
(H) Ordinance, Title I sections 17-18 (audits, reports and records)
(I) Ordinance, Title I, section 19 (bond or letter of credit);
34
(J) Ordinance, Title I, section 20 (insurance);
(K) Ordinance, Title II, section 3 (cable construction);
(L) Ordinance, Title II, section 6 (consumer protection);
(M) Ordinance, Title II, section 8 (franchise fee);
(N) Ordinance, Title II, section 9 (tests and inspections);
(0) Ordinance, Title II, section 10 (cable insurance);
(P) Ordinance, Title II, section 11 (cable reports and records).
(5) City Council Review At Public Meeting. In the event that the Grantee
fails to respond to the notice described in section 9(d)(1) pursuant to the procedures set forth in
section 9(d)(2), or in the event that the alleged default is not remedied within the period
specified in section 9(d)(3) above, then the City, if it intends to continue its investigation into
the alleged default, shall shall provide the Grantee with a meaningful opportunity to be heard at
a public meeting of the City Council, which can be a regularly scheduled Council meeting. The
City shall provide the Grantee at least ten business (10) days' prior written notice of such
meeting, which specifies the time, place and purpose of such meeting and the consequence that
the City seeks to impose, and provides the Grantee a meaningful opportunity to be heard.
(6) Enforcement. Subject to applicable federal and state law, in the event
the City, after the meeting set forth in section 9(d)(5), determines that the Grantee is in
material violation of any provision of the Franchise, the City may invoke remedies as
described in section 9(f), subject to the provisions of section 9(d)(4).
(e) Security Fund Procedures
(1) The performance bond specified under Section 9(a), and the letter of
credit specified under Section 9(b), shall be referred to jointly or severally as the Security
Fund.
(2) The following procedures shall apply to drawing on the Security Fund:
(A) If within five (5) business days after the City has issued a written
final notice of its determination after concluding the procedures
set forth in section 9( d), the Grantee fails to make timely payment
to the City of any amount due, the City may withdraw the amount
thereof from the Security Fund.
(B) Within three (3) days of a withdrawal from the Security Fund, the
City shall mail, by certified mail, return receipt requested,
written notification of the amount, date, and purpose of such
withdrawal to the Grantee.
35
(C) If at the time of a withdrawal from the Security Fund by the City,
the amounts available are insufficient to provide the total payment
towards which the withdrawal is directed, the balance of such
payment shall continue as the obligation of the Grantee to the
City until it is paid.
(D) No later than thirty (30) days after mailing of notification to the
Grantee by certified mail, return receipt requested, of a
withdrawal under the Security Fund, the Grantee shall restore the
Security Fund to the total amount specified herein.
(E) Upon termination of the Franchise under conditions other than
those stipulating forfeiture of the Security Fund, the balance then
remaining in the Security Fund shall be returned to the Grantee
within ninety (90) days of such termination, provided that there is
then no outstanding default on the part of the Grantee.
(j) Remedies: The remedies contained herein, except for the limitations specified in
section 9(t)(5), are in addition to any other remedies available at law or equity, and the City
may, to the extent consistent with federal and state remedy law, apply anyone or a
combination of the following remedies in the event the Grantee violates the Cable Ordinance,
this Franchise Agreement, or applicable state or federal law:
(1) Apply any remedy provided pursuant to this Agreement.
(2) Revoke the Franchise or shorten the term of this Agreement pursuant to
the procedures specified in this Agreement.
(3) Impose penalties available under the Cable Ordinance or other applicable
state and local laws for violation of City ordinances.
(4) In addition to or instead of any other remedy, seek legal or equitable
relief from any court of competent jurisdiction.
(5) Any action, proceeding or exercise of a right by the City under this
Section does not constitute an election of remedies or a waiver of any other right the City may
have, including the right to seek specific performance of a franchise obligation, except that (A)
the City's election of liquidated damages shall take the place of any right to obtain actual
damages over and above the payment of any amounts otherwise due, and (B) to the extent that
penalties are applied to a Grantee under the Cable Ordinance, a Grantee shall not be subject to
liquidated damages payable to the City for the same violation.
(g) Liquidated Damages: Because the Grantee's failure to comply with certain
provisions of this Agreement or the Ordinance will result in injury to the City, and because it
will be difficult to estimate the extent of such injury, the City and the Grantee agree to the
following liquidated damages for the following violations of this Agreement and the Ordinance,
36
which represent both parties' best estimate of the damages resulting from the specified
violation. To maintain that estimate, the parties agree that the liquidated damage amounts are
in 2005 dollars and shall be increased each year by the increase in the Inflation Index. Such
damages shall be assessed from the date on which the City gives written notice to the Grantee
pursuant to section 9(d)(1), but shall not be applied except according to the procedures
specified in section 9( d).
(1) For failure to substantially complete construction of either (A) the
System Upgrade pursuant to section 5(c), or (B) the I-Net pursuant to section 6(h), in
accordance with this Agreement: $500/day for each violation for each day the violation
continues;
(2) For failure to comply with requirements for public, educational and
governmental use of the System: $200/day for each violation for each day the violation
continues, in addition to any monetary payment due under this Agreement or the Cable
Ordinance;
(3) For failure to supply information, reports, or filings lawfully required
under this Agreement, the Cable Ordinance or applicable law: $200/day for each violation for
each day the violation continues;
(4) For violation of customer service standards as set forth in the Cable
Ordinance: up to $200 per violation, depending on the nature, scope, and severity of the
violation, as reasonably determined by the City;
(5) For failure, unless such failure is beyond the Grantee's control, of the
system to perform in the event of a public emergency: $250 per occurrence;
(6) For failure to render any payment due to the City: $100 per day, m
addition to the original amounts due;
(7) For failure to file, obtain or maintain any required Security Fund in a
timely fashion: $50 per day;
(8) For failure to restore damaged property: $50 per day, in addition to the
cost of the restoration as required in this Agreement or the Ordinance;
(9) For violation of technical standards established by the FCC: $100 per
day.
(10) For any given provision ofthis Agreement or the Ordinance, if the City
does not impose liquidated damages or penalties for that provision at any time in the first four
years after the Effective Date (not counting any instances in which the City imposes such
liquidated damages or penalties and such imposition is overturned by a tribunal of competent
jurisdiction), then the liquidated damage amounts specified in sections 9(g)(1) through 9(g)(9)
37
above shall be reduced, for the remainder of the Franchise term, to half the amounts specified
above.
(h) Shortening, Revocation, or Termination of Franchise
(1) Upon completion of the term of this Franchise Agreement, if a new,
extended, or renewed Franchise is not granted to the Grantee by the City, the Grantee's right
to occupy the Public Rights-of-Way shall terminate, subject to applicable federal law.
(2) Subsequent to completion of the procedures set forth in section 9(d), if
the City has given notice pursuant to section 9(d)(5) that it is seeking revocation of the
Franchise Agreement, the City shall have the right to revoke the Franchise (or, alternatively, at
the City's discretion, pursuant to the same procedures, to shorten the remaining term of the
Franchise Agreement to a term not less than thirty-one (31) months from the date of the action
shortening the Franchise term), for the Grantee's failure to construct, operate, or maintain the
Cable System as required by this Agreement; for defrauding or attempting to defraud the City
or Subscribers; or for any other material breach of this Agreement or material violation of the
Cable Ordinance.
(3) If the City revokes the Franchise, or if for any other reason the Grantee
abandons, terminates, or fails to operate or maintain service to its Subscribers, the following
procedures and rights are effective:
(A) The City may require the former Grantee to remove its facilities
and equipment at the former Grantee I s expense and restore
affected sites as required in the Cable Ordinance, or permit the
former Grantee to abandon such facilities in place. If the former
Grantee fails to do so within a reasonable period of time, the City
may have the removal done at the former Grantee's and/or
surety's expense.
(B) The City may require the former Grantee to continue operating
the Cable System, including the I-Net, as specified in Section
4(b).
(C) In the event of revocation, the City, by resolution, may acquire
ownership of the Cable System at an equitable price in
accordance with federal law .
(D) If a Cable System is abandoned by the Grantee, the ownership of
all portions of the Cable System in Public Rights-of-Way shall
revert to the City and the City may sell, assign, or Transfer all or
part of the assets of the System.
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10. MISCELLANEOUS PROVISIONS
(a) Binding Acceptance: This Agreement shall bind and benefit the parties hereto
and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, and the
promises and obligations herein shall survive the expiration date hereof.
(b) Severability
(1) If any provision of this Agreement or any application thereof to any
person or circumstance is held invalid, the invalidity does not affect other provisions or
applications of this Agreement which can be given effect without the invalid provision or
application, except that the invalidity may invoke the provision in Section lO(b)(1) herein for
loss of benefit, and to this end and extent the provisions of this Agreement are severable.
(2) If any provision of this Agreement becomes invalid and results in a
significant loss of benefit to the City or Grantee or both, as determined by either party, then
the party claiming the loss may demand renegotiation.
(3) Such a demand for renegotiation must be made and delivered to the other
party within one (1) year after the date both the City and Grantee have received notice of the
invalidity. Within fifteen (15) days of receipt of such a demand, both the City and Grantee
must meet in Dubuque, Iowa and begin the renegotiations. The renegotiations shall be limited
to reforming the franchise and restoring the party suffering the loss to its former position with
equivalent benefit.
(4) The reformed franchise shall be effective from the date the debilitating
invalidity took place, even if such reformation is retroactive and involves a settlement for loss
of past services.
(5) The purpose of this Section is to maintain the continuity of the contract
in conformity with the expressed intentions of the parties when the contract was formed and,
where applicable, as later amended.
(c) Grantee Bears Its Own Costs: Unless otherwise expressly provided in this
Agreement, all acts that the Grantee is required to perform must be performed at the Grantee's
own expense.
(d) Force Majeure: The Grantee shall not be deemed in default of provisions of this
Agreement or the Cable Ordinance where performance was rendered impossible by war or
riots, labor strikes or civil disturbances, floods, inability to obtain necessary consents and/or
permits, or other causes beyond the Grantee's control, and the Franchise shall not be revoked
or the Grantee penalized for such noncompliance, provided that the Grantee takes immediate
and diligent steps to bring itself back into compliance and to comply as soon as possible under
the circumstances with the Franchise.
39
(e) Governing Law: This Franchise Agreement shall be governed in all respects by
the law of the State of Iowa.
(j) Notices: Unless otherwise expressly stated herein, notices required under this
Franchise Agreement shall be mailed first class, postage prepaid, to the addressees below.
Each party may change its designee by providing written notice to the other party, but each
party may only designate one entity to receive notice.
(1) Notices to the Grantee shall be mailed to:
Vice President, Legal and Regulatory Affairs
Mediacom Communications Corporation
100 Crystal Run Road
Middletown, NY 10941
with a copy to:
Region Vice President
Mediacom Communications Corporation
3900 26th A venue
Moline,IL 61265
(2) Notices to the City shall be mailed to:
City Manager
City of Dubuque
City Hall
50 West 13th Street
Dubuque, Iowa 52001
with a copy to:
Corporation Counsel
City of Dubuque
City Hall
50 West 13th Street
Dubuque, Iowa 52001
(3) The Grantee shall at all times keep the City advised as to which
individual(s) are authorized to act on behalf of the Grantee and whose acts will be considered
to bind the Grantee.
(g) Time of the Essence: Whenever this Agreement sets forth any time for any
action to be performed by or on behalf of the Grantee, such time shall be deemed to be of the
essence, and any failure of the Grantee to perform within the time allotted, unless otherwise
agreed to by the City or provided for herein, shall be sufficient grounds for the City to revoke
the franchise pursuant to the procedures herein.
40
(h) Captions and References
(1) The captions and headings of sections throughout this Agreement are
intended solely to facilitate reading and reference to the sections and provisions of this
Agreement. Such captions shall not affect the meaning or interpretation of this Agreement.
(2) When any provision 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 Agreement, 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).
(j) 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 terms and provisions of this Agreement, and
acknowledges that, to the best of its knowledge, each provision is lawful and enforceable. If
the Grantee believes that the terms 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 of the conflict.
AGREED TO THIS
DA Y OF
City of Dubuque, Iowa,
a municipal corporation of Iowa
By:
City Manager
ATTEST:
City Clerk
41
MCC IOWA, LLC,
a Delaware Limited Liability Company
By:
Vice-President of Legal and Regulatory Affairs
4253\05\00107246.DOC
42
EXHIBIT A
ACCEPTANCE OF FRANCmSE BY THE GRANTEE
MCC IOWA, LLC ("Grantee") hereby accepts the franchise 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 offered by Ordinance No. of City of
Dubuque, Iowa ("City"), as amended ("Granting Ordinance"). By this acceptance, Grantee
agrees that, as set forth in the Franchise Agreement, it shall be bound by the terms and
conditions of the Franchise Agreement, any amendments thereto, the City of Dubuque Cable
Right-of-Way Ordinance, and other applicable law (collectively, the "Franchise Documents").
The Grantee declares that it has carefully read all of the terms and conditions of the
Franchise Documents, and accepts and agrees to abide by same.
Upon the Franchise becoming effective, the Grantee shall be immediately bound to
maintain and operate a Cable System under the terms, conditions and limitations set forth in
the Franchise Documents and other applicable law, as of the time and date it files this written
acceptance with the City.
AGREED TO THIS
DA Y OF
MCC IOWA, LLC
By:
Its:
4253\05\M LF02829. DOC
43
STATE OF [STATE]:
I HEREBY CERTIFY, that on this _ day of
the subscriber, a Notary Public of the State of [STATE], in and for
[STATE], aforesaid personally appeared
, before me,
County,
of
and acknowledged
County, [STATE], to be
the foregoing Acceptance of Franchise by Grantee in
the act and deed of said company.
County, [STATE]
AS WITNESS my hand and Notary Seal
Notary Public
My Commission Expires:
44
EXHIBIT B
I-NET SITE LIST
45
EXHIBIT C
FORM OF PERFORMANCE BOND
Bond No:
KNOW ALL MEN THESE PRESENTS,
THAT
, as Principal and
having its executive office
as Surety, are held and firmly bound unto
, hereinafter referred to as Obligee, in the
penal sum of
DOLLARS ($ ) for the payment of which, well and truly to be made, we bind
ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally,
firmly by these presents the liability of the Surety being limited to said penal sum regardless of
the number of years this bond remains in force or is renewed, of the number of premiums that
shall be payable or paid, the number of Subscribers to the system and/or legal fees which may
be required and incurred.
WHEREAS, the Obligee has granted a franchise to Principal to use the public streets and
places within its Municipality to transmit and distribute electrical impulse through an open line-
coaxial antenna system for television receivers located within said
NOW THEREFORE, the condition of this obligation is such, that if the above bound Principal
shall faithfully perform, well and truly observe and fulfill the terms and conditions of the
franchise, than this obligation shall be null and void; otherwise it shall remain in full force and
effect until cancelled.
PROVIDED, HOWEVER, it shall be a condition precedent to any right of recovery
hereunder, that in the event of any formal determination of default by the City Council on the
part of the Principal, a written statement of the particular facts showing the date and nature of
such default shall be delivered to the Surety by registered mail at its Home Office at
AND PROVIDED FURTHER that no action, suit or proceeding shall be had or maintained
against the Surety on this instrument unless same be brought or instituted and process served
upon the surety within twenty-four (24) months after an act of breach or cancellation of this
bond or termination of said franchise, whichever occurs first.
46
This Bond may be terminated or canceled by Surety by giving thirty (30) days prior notice in
writing from Surety to Principal and said Obligee, such notice to be given by certified mail.
Such termination shall not affect any liability incurred or accrued under this Bond prior to the
effective date of such termination or cancellation.
IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this
instrument this day of
WITNESS
NAME
PRINCIPAL
BY:
TITLE
SURETY
BY:
Approved and Accepted By:
Obligee
Title
Date
4253\05\00 I 07146.DOC
47
CABLE RIGHT -OF-WAY ORDINANCE
CITY OF DUBUQUE, IOWA
,2005
CABLE RIGHT-OF-WAY ORDINANCE
CITY OF DUBUQUE, IOWA
Pa2e
TITLE I: GENERAL PROVISIONS...................................................................... 1
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
TITLE II:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Legislative Findings........................................................................ 1
Purposes ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
Authority ..................................................................................... 4
Reservation of Rights; Police Power.................................................... 4
Title ........................................................................................... 4
Authorization Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
Construction Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
Placement of Facilities. .................................................................... 7
Relocation of Facilities..................................................................... 8
Restoration. .................................................................................. 8
Work Permits................................................................................ 9
Business License ............................................................................ 9
Reimbursement of Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Audits....................................................................................... .10
Reports and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Bond or Letter of Credit.... ...... ... ............................................. ... .....13
Insurance .................................................................................... 13
Enforcement ................................................................................ 13
Indemnification............................................................................ .15
Severability................................................................................. .15
CABLE COMMUNICA nONS............................................................ .16
General Provisions......................................................................... 16
Grant of Franchise.......... ......... .... ........................ ....... ................ ...21
Construction Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Use of Public Property.................................................................... 30
Interference with Public Projects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Consumer Protection .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Rate Regulation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
Franchise Fee............................................................................... 43
System Tests and Inspections...... ...... .......... ........................... ..... ..... .44
Insurance .................................................................................... 45
Reports and Records - Cable. ........ ............................... ..... ......... ... ...46
Performance Guarantees And Penalties ........................ ................. ..... ..49
II
13.
14.
15.
Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
Rights Of Individuals Protected ......................................................... 56
Miscellaneous Provisions................................................................. 57
TITLE III: OPEN VIDEO SYSTEMS ...................................................................57
1. Applicability of Ordinance. .............................................................. 57
2. Application for Open Video System Authorization. .................................58
3. Fee In Lieu of Franchise Fee. ........................................................... 59
4. Public, Educational, and Governmental Access Obligations. ...................... 59
5. Right-of-Way Usage.... ........................ ................ .... ..................... ..59
EXHIBIT A 61
EXHIBIT B 65
III
TITLE I: GENERAL PROVISIONS
1: Legislative Findings
ORDINANCE NO.
AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE
CITY OF DUBUQUE, lOW A, BY ADOPTING A NEW ORDINANCE TO
REGULATE THE CONDITIONS REQUIRED AND MANNER OF USE OF
THE PUBLIC RIGHTS-OF-WAY.
Be it ordained by the Council of City of Dubuque, Iowa as follows:
Section 1.
The Code of Ordinances of the City of Dubuque, Iowa is hereby amended by adding
the following:
CABLE RIGHT-OF-WAY ORDINANCE
TITLE I: GENERAL PROVISIONS
1. LeWslative Findin2s
The City Council hereby fmds and declares:
(1) that the public rights-of-way within the City can be partially occupied by
public utilities and other service entities for facilities used in the delivery, conveyance, and
transmission of services rendered for profit, to the enhancement of the health, welfare, and
general economic well-being of the City and its citizens;
(2) that the public rights-of-way within the City are physically limited so that
proper management by the City is necessary to maximize the efficiency and to minimize the
costs to the taxpayers of the foregoing uses, to prevent foreclosure of future uses through
premature exhaustion of available right-of-way capacity, and to minimize the inconvenience to
the public from such facilities' construction, emplacement, relocation, and maintenance in the
rights-of-way;
(3) that the use of the public rights-of-way by multiple users renders more
pressing the City's right-of-way management responsibilities;
(4) that the public rights-of-way within the City are valuable public property
acquired and maintained by the state and the City at great expense to the taxpayers; and
(5) that the right to occupy portions of such public rights-of-way for limited
times for the business of providing utility and cable services is a valuable economic asset.
TITLE I: GENERAL PROVISIONS
2: Purposes
2. Purposes
The City Council adopts this ordinance to better-
(1) manage a limited resource to the long-term benefit of the public;
(2) recover the costs of managing the public rights-of-way;
(3) minimize inconvenience to the public occasioned by the emplacement
and maintenance of facilities in the public rights-of-way;
(4) prevent premature exhaustion of capacity in the public rights-of-way to
accommodate communications and other services; and
(5) promote competition in the provision of communications service in the
City and ensure that citizens have a wide variety of services available to them by establishing
clear and consistent rules by which providers may occupy the public rights-of-way.
3. Rules of Construction
When not inconsistent with the context, words used in the present tense include the
future tense; words in the plural number include the singular number, and words in the
singular number include the plural number; and the masculine gender includes the feminine
gender.
The words "shall" and "will" are mandatory, and "may" is permissive.
Unless otherwise specified, references to laws, ordinances or regulations shall be
interpreted broadly to cover government actions, however nominated, and include laws,
ordinances and regulations now in force or hereinafter enacted or amended.
4. Definitions
For the purposes of this Ordinance, the following terms, phrases, words, and
abbreviations shall have the meanings given herein, unless otherwise expressly stated. Unless
otherwise expressly stated, words not defined herein shall be given the meaning set forth in
Title 47 of the United States Code, as amended, and, if not defined therein, their common and
ordinary meaning.
(1) Affiliate, when used in relation to any person, means another person who
de facto or de jure owns or controls, is owned or controlled by, or is under common ownership
or control with, such person.
2
TITLE I: GENERAL PROVISIONS
4: DefInitions
(2) City. City of Dubuque, Iowa, and any agency, department, or agent
thereof.
(3) City Mana~er means the person appointed pursuant to City of Dubuque
Code of Ordinances ~ 2-105.
(4) Communications Facility or Communications System means facilities for
the provision of communications services, as that term is defined herein.
(5) Communications Services means telecommunications services,
interactive computer services, and any other services involving the transmission of information
by electronic or optical signals, except that it shall not include cable service as that term is
used in the Cable Communications Policy Act of 1984, as amended.
(6) Council means the principal governmental body of the City of Dubuque,
Iowa, its officers, or a representative person or entity as may be designated to act on its behalf.
(7) Facility or Facilities means any cable system and/or any tangible asset in
the public rights-of-way used to provide cable service.
(8) Federal Communications Commission (or FCC) means the Federal
Communications Commission or any successor.
(9) Franchise means an authorization granted by the City to a person to
construct, maintain, or emplace facilities generally upon, across, beneath, and over the public
rights-of-way in the City, subject to the terms and conditions specified in a Franchise
Agreement.
(10) Franchise A~reement means the contract entered into between the City
and a Grantee that sets forth the terms and conditions under which the franchise may be
exercised.
(11) Grantee means a person that has been granted a cable franchise by the
City or is an OVS operator in the City.
(12) Owner or operator of a facility means any person which has a possessory
interest in such facility or which controls or is responsible for, through any arrangement, the
management and operation of such facility.
(13) Person means any individual, corporation, partnership, association, joint
stock company, trust, governmental entity, or any other legal entity, but not the City.
3
TITLE I: GENERAL PROVISIONS
5: Authority
(14) Public Ri~hts-of-Way means the surface and space above, on, and below
any public highway, avenue, street, lane, alley, boulevard, concourse, driveway, bridge,
tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, public easement, or right-of-
way within the City in which the City now or hereafter holds any property interest which,
consistent with the purposes for which it was dedicated or otherwise acquired, may be used for
the purpose of constructing, operating, and maintaining a facility.
(15) Telecommunications has the meaning ascribed to it m 47 V.S.C.
~ 153(43).
(16) Telecommunications Service has the meaning ascribed to it in 47 V.S.C.
~ 153(46).
(17) Work permit means an authorization issued by the City to enter upon the
public rights-of-way at specified times and places to erect, construct, emplace, or otherwise
work on facilities.
5. Authority
This ordinance is adopted pursuant to the City's powers, including but not limited to those
under Section 38A of the Iowa Constitution and Section 364.2 of the Iowa Code.
6. Reservation of Ri2hts; Police Power
All rights and privileges granted in a franchise agreement 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 a 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 fmd 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 a grantee's franchise agreement as
prohibited by Article I, Section 10, clause 1 of the V.S. Constitution.
7. Title
This Ordinance is known and may be cited as the "Dubuque Cable Right-of-Way Ordinance."
4
TITLE I: GENERAL PROVISIONS
8: Authorization Required
8. Authorization Required
(1) No person shall install, erect, hang, lay, bury, draw, emplace, construct,
reconstruct, maintain, or operate any facility upon, across, beneath, or over any public right-
of-way in the City or other City property without first obtaining from the City the necessary
authorization (e.g., in the case of a cable operator, a franchise) required under local, state or
federal law .
(2) An owner or operator of facilities may be required to hold different
authorizations for its use of the public rights-of-way to provide different services. For
example, and without limitation, the owner or operator of facilities that provides both cable
service and telephone service must obtain both a cable franchise and any authorization needed
to provide telephony.
9. Construction Standards.
(1) Construction, operation, maintenance, and repair of facilities shall be in
accordance with all applicable law and regulation, and with sound industry practice. All
safety practices required by law shall be used during construction, maintenance, and repair of
facilities.
(2) No Grantee or holder of any work permit for any facility shall dig, trench,
or otherwise excavate in the public rights-of-way without complying with the provisions of the
Iowa One-Call System, Iowa Code ~ 480.3 et. seq., or its successor.
(3) An owner or operator shall at all times employ at least ordinary care and
shall install and maintain in use commonly accepted methods and devices preventing failures
and accidents that are likely to cause damage, injury, or nuisance to the public.
(4) 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).
(5) A Grantee shall have the authority to trim trees that overhang public rights-
of-way of the city so as to prevent the branches of such trees from coming in contact with the
facilities of the Grantee, in a manner subject to the approval of the City Manager or designee.
Notwithstanding that grant of authority, if the Grantee performs the work, it shall be fully liable
for any damages caused thereby, and shall be responsible for replacing damaged trees and shrubs.
Grantee shall be responsible for notifying abutting property owners prior to trimming trees and
shall obtain permission from the City Manager or the City Manager's designee. At the option of
the City, such trimming may be done by the City.
5
TITLE I: GENERAL PROVISIONS
9: Construction Standards.
(6) Construction Schedule. Every owner or operator shall, at least 45 days
prior to commencing significant construction activity (including a significant rebuild, upgrade,
or repair to existing facilities) upon, across, beneath, or over any public right-of-way in the
City or other City property, provide to the City in writing the date on which the owner or
operator anticipates it will begin construction and the approximate length of time required for
such construction.
(7) Coordination of Construction With the City. Prior to the erection,
construction, upgrade, or rebuild of any facilities in the public right-of-way, the owner or
operator of such facilities shall first submit to the City for written approval, which shall not be
unreasonably denied or delayed, a concise description of the facilities proposed to be erected or
installed, including engineering drawings, if required by the City, together with maps and
plans indicating the proposed location of all such facilities. The owner or operator shall
provide the best information it has in such reasonable format as may be specified by the City
for the City's planning function. No such erection or construction shall be commenced by any
Person until approval therefor has been received from the City. At the time of such approval,
the City shall inform the Grantee whether the reports and other information described by Title
I, section 18(3)(A) shall be required with respect to the approved construction.
(8) Coordination of Construction With Third Parties. Developers or other
parties planning the construction or opening of streets in the City shall provide reasonable
notice to the City and to the owners or operators of facilities subject to this Ordinance so that
joint trenching and joint emplacement of facilities may be conducted wherever practicable.
Such owners and operators shall similarly provide notice to each other and to any relevant
developers, for the same purpose. The City shall maintain a list of owners and operators of
facilities subject to this Ordinance for reference by other parties.
(9) Contractors and Subcontractors. Any contractor or subcontractor used
for work or construction, installation, operation, maintenance, or repair of facilities in the
public rights-of-way must be properly licensed and insured under laws of the State and all
applicable local ordinances. Each contractor or subcontractor shall have the same obligations
with respect to its work as an owner or operator of the facility would have if the work were
performed by the owner operator. An owner or operator shall be responsible for all activities
carried out by its contractors, subcontractors and employees at the owner or operator's request.
(10) Publicizing Proposed Construction Work. The owner or operator of
facilities in the public rights-of-way shall notify the public prior to commencing any
construction, other than emergency repair work, that will significantly disturb or disrupt public
property or have the potential to present a danger or affect the safety of the public generally.
Written notice of such construction work shall be delivered to the City at least one week prior
to commencement of that work. Notice shall be provided to those persons most likely to be
6
TITLE I: GENERAL PROVISIONS
10: Placement of Facilities.
affected by the work in at least two of the following ways: by telephone, in person, by mail,
by distribution of flyers to residences, by publication in local newspapers, or in any other
manner reasonably calculated to provide adequate notice. If an owner or operator must enter a
building or other structure, it must schedule an appointment at the reasonable convenience of
the owner or resident.
10. Placement of Facilities.
(1) All facilities shall be installed and located to minimize interference with
the rights and convenience of other property owners.
(2) An owner or operator of a facility shall not place facilities, equipment,
or fixtures where they will interfere with any other facilities, or obstruct or hinder in any
manner the various utilities serving the residents of the City or their use of any public rights-
of-way.
(3) The City may reasonably direct the specific placement of facilities to
ensure that users of the public rights-of-way do not interfere with each other and that the public
rights-of-way are used safely and efficiently.
(4) Every Grantee that ceases operating or maintaining any facility shall,
upon written request of the City within two years or the cessation or maintenance of such
facility, promptly remove it. Should the Grantee neglect, refuse, or fail to remove such
facility, the City may remove the facility at the expense of the Grantee. The obligation to
remove shall survive the termination of the franchise or license for a period of two years and
shall be bonded.
(5) No owner or operator of a facility shall erect new aerial plant, other than
to repair existing plant, in or on a public right-of-way in which both electric and telephone
service providers have placed their lines underground, or in an area which the City has by
ordinance forbidden new aerial plant to be constructed or existing aerial plant to be maintained.
(6) If at any time the City determines that existing wires, cables or other like
facilities of public utilities anywhere in the City shall be changed from an overhead to
underground installation, the owner or operator of a facility shall at the owner or operator's
sole expense convert its system in that location to an underground installation.
(7) A Grantee shall use, with the owner's permission, eXIstmg poles,
conduits and other facilities whenever feasible. A Grantee may not erect poles, conduits, or
other facilities in public rights-of-way without the express permission of the City. Copies of
agreements for use of conduits or other facilities shall be filed with the City upon City request.
7
TITLE I: GENERAL PROVISIONS
11: Relocation of Facilities.
(8) To the extent practicable, above-ground equipment placed on private
property shall be placed at the location requested by the property owner. An owner or
operator 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.
(9) Whenever above-ground equipment is placed on private property, the
Grantee shall provide landscaping camouflage reasonably acceptable to the property owner, at
the Grantee's expense.
11. Relocation of Facilities.
(1) The owner or operator of a facility on or within the public rights-of-way
shall, at its own expense, upon written notice from the City reasonably in advance, promptly
relocate any facility located on or within the public rights-of-way as the City may deem
necessary or appropriate to facilitate the realignment, reconstruction, improvement or repair of
public streets, sidewalks, curbs, drains, sewers, and public improvements of any sort;
provided, however, that a operator may be permitted to abandon any property in place with the
written consent of the City.
(2) If any removal, relaying, or relocation is required to accommodate the
construction, operation, or repair of the facilities of another person that is authorized to use the
public rights-of-way, an owner or operator of a facility shall, upon thirty (30) days' advance
written notice, take action to effect the necessary changes requested by the responsible entity.
The City may resolve disputes as to responsibility for costs associated with the removal,
relaying, or relocation of facilities as among entities authorized to install facilities in the public
rights-of-way if the parties are unable to do so themselves, and if the matter is not governed by
a valid contract between the parties or a state or federal law or regulation.
(3) In the event of an emergency, or where a facility creates or is
contributing to an imminent danger to health, safety, or property, the City may remove, relay,
or relocate any or all parts of that communications system without prior notice.
12. Restoration.
(1) If an owner or operator of a facility disturbs a pavement, sidewalk,
driveway or other surfacing, or landscaping, or other structure, either on private property or in
public rights-of-way, the owner or operator shall, in a manner approved by the City, replace
and restore all pavement, sidewalk, driveway or other surfacing, or landscaping disturbed, in
substantially the same condition and in a good, workmanlike, timely manner, in accordance
with any standards for such work set by the City. Such restoration shall be undertaken within
no more than ten (10) days after the damage is incurred, weather permitting, and shall be
8
TITLE I: GENERAL PROVISIONS
13 : Work Permits
completed as soon as reasonably possible thereafter. The owner or operator shall guarantee
and maintain such restoration for at least one year against defective materials or workmanship.
(2) In the event an owner or operator of a facility fails to complete any work
required for the protection or restoration of the public rights-of-way, or any other work
required by City law or ordinance, within the time specified by and to the reasonable
satisfaction of the City, the City, following notice and an opportunity to cure, may cause such
work to be done, and the an owner or operator of a facility shall reimburse the City the cost
thereof within thirty (30) days after receipt of an itemized list of such costs; or the City may
recover such costs through the security fund provided by an owner or operator of a facility,
pursuant to the procedures for recovery from the security fund specified in the owner or
operator's franchise agreement.
(3) Any and all public rights-of-way, public property, or private property
that is disturbed or damaged during the construction, repair, replacement, relocation,
operation, maintenance, or reconstruction of a system shall be promptly repaired by the an
owner or operator of a facility.
13. Work Permits
(1) No person shall install, erect, hang, lay, bury, draw, emplace, construct,
or reconstruct any facility upon, across, beneath, or over any public right-of-way in the City,
or enter into the public rights-of-way to work on a facility, other than routine repair or
maintenance, without first obtaining a work permit therefor from the City Manager or the City
Manager's designee pursuant to City of Dubuque Code of Ordinances ~ 41-61.
Notwithstanding the foregoing, under no provision in this Ordinance shall any work permit or
other approval from the City be required to install, construct, repair, maintain or replace any
service drop.
(2) A franchise under this Ordinance shall not render unnecessary or take the
place of such work permits.
14. Business License
A franchise under this Ordinance does not render unnecessary or take the place of any
generally applicable business license that may be required by the City for the privilege of
transacting and carrying on a business within the City generally.
15. Reimbursement of Costs
All Grantees will reimburse the City for its internal and out-of-pocket costs, including but not
limited to attorneys' and consultants' fees, actually and reasonably incurred by the City in
9
TITLE I: GENERAL PROVISIONS
16: Administration
connection with an application for an initial franchise under this Ordinance, as determined by
the City after it takes action on the application. Any application fee submitted with the
application will be credited against this amount. The Applicant will remit to the City payment
for such costs within thirty days of its receipt of the City's invoice.
16. Administration
The City Manager or his or her designee shall -
(1) collect any applicable fees from all owners or operators of facilities using
public rights-of-way in the City;
(2) audit any franchise fees or payments owed to the City;
(3) publish from time to time a schedule of application and hearing fees,
which shall be designed to recover the City's costs in processing applications hereunder and
may provide specially for hearing fees in those cases where hearings are required;
(4) be responsible for the continuing enforcement of all terms and conditions
of franchises under this Ordinance.
17. Audits
Each owner and operator of facilities in the public rights-of-way shall maintain books, records,
and plant accounts sufficient to document its obligations for any fee or payment owed pursuant
to the City Code. Such books, records, and accounts shall be maintained and available for
inspection for a period of four years; provided, however, that such books, records, and
accounts shall be maintained and available during the continuation of any audit by or on behalf
of the City commenced during such four-year period or during any dispute or litigation with
respect thereto.
18. Reports and Records.
(1) Open Books and Records:
(A) The City shall have the right to inspect and analyze at any time
during normal business hours at the nearest office of an owner or
operator of facilities, or, if such office is not in the City, then at
such other location in the City as the City may reasonably
designate, all books, receipts, maps, records, codes, programs,
and disks or other storage media and other like material
reasonably appropriate in order to monitor compliance with the
terms of this Ordinance or applicable law, where the owner or
10
TITLE I: GENERAL PROVISIONS
18: Reports and Records.
operator shall have the burden of showing that such materials are
not reasonably appropriate. This includes not only the books and
records directly relevant to enforcement of this Ordinance or the
owner or operator's franchise agreement that are held by the
operator, but any books and records held by an Affiliate, or any
contractor, subcontractor or any person holding any form of
management contract for the facilities in the public rights-of-way
to the extent such books or records relate to the facilities. An
owner or operator is responsible for collecting the information
and producing it at a location as specified above. The City shall
provide the owner or operator with advance notice stating the
types of records sought to be reviewed and the reason for such
reVIew.
(B) Access to an owner or operator's records shall not be denied on
the basis that said records contain "proprietary" information.
Any confidential information received by the City shall remain
confidential insofar as permitted by the Iowa Open Records Act,
Iowa Code Chapter 22, and other applicable state and federal
law.
(2) Annual Report:
Unless this requirement is waived in whole or in part in writing by the
City, no later than 120 days after the end of its fiscal year, each owner
or operator of facilities in the Public Rights-of-Way shall submit a
written report to the City, in a form directed by the City, which shall
include:
(A) An organizational chart showing all corporations or partnerships
with more than a five (5) percent ownership interest in the owner
or operator, and the nature of that ownership interest (limited
partner, general partner, preferred shareholder, etc.); and
showing the same information for each corporation or partnership
that holds such an interest in the corporations or partnerships so
identified, and so on until the ultimate corporate and partnership
interests are identified.
(B) Detailed, updated maps depicting the location of all facilities
located in public rights-of-way in the City.
(3) Special Reports
11
TITLE I: GENERAL PROVISIONS
18: Reports and Records.
Unless this requirement is waived in whole or in part by the City, the
owner or operator of facilities in the public rights-of-way shall deliver
the following special reports to the City:
(A) An owner or operator shall submit monthly construction reports
to the City for any major construction undertaken in the public
rights-of-way until such construction is complete. The owner or
operator must submit updated as-built system design maps to the
City, or make them available for inspection with notice of their
availability, within 30 days of the completion of system
construction in any geographic area. These maps shall be
developed on the basis of post-construction inspection by the
owner or operator and construction personnel. Any departures
from design must be indicated on the as-built maps.
(B) An owner or operator must submit a copy and brief explanation
of any request for protection under bankruptcy laws, or any
judgment related to a declaration of bankruptcy by the owner or
operator or by any partnership or corporation that owns or
controls the owner or operator directly or indirectly.
(4) Records Required. An owner or operator of facilities in the public
rights-of-way shall at all times maintain:
(A) A full and complete set of plans, records, and "as built" maps
showing the exact location of all equipment installed or in use in
the City, exclusive of customer service drops.
(B) A file showing its plan and timetable for future major
construction of the facilities.
(5) Voluminous Materials:
If any books, records, maps or plans, or other requested documents are
too voluminous, or for security reasons cannot be copied and moved,
then an owner or operator of facilities in the public rights-of-way may
request that the inspection take place at some other location, provided
that (1) the owner or operator must make necessary arrangements for
copying documents selected by the City after review; and (2) the owner
or operator must pay all travel and additional copying expenses incurred
by the City in inspecting those documents or having those documents
12
TITLE I: GENERAL PROVISIONS
19: Bond or Letter of Credit
inspected by its designee, as charges incidental to the enforcing of the
owner or operator's franchise or other authorization for use of the public
rights-of-way.
19. Bond or Letter of Credit
No person shall install, erect, hang, lay, bury, draw, emplace, construct, reconstruct,
maintain, or operate any facility upon, across, beneath, or over any public right-of-way in the
City or other City property until the owner or operator shall have filed with the City Manager
a bond and/or letter of credit, in a form acceptable to the City, running in favor of the City, to
guarantee the obligations of the owner or operator under this Ordinance and applicable law.
The amount of the bond or letter of credit shall be no less than the reasonable cost of removal
of the facilities and restoration of any affected public rights-of-way or other property pursuant
to this Ordinance.
20. Insurance
An owner or operator shall maintain insurance covering its facilities and operations in the
public rights-of-way, as specified in a specific title herein or in its franchise agreement.
21. Enforcement
(1) Penalties. For violation of provisions of this Ordinance or its franchise
under this Ordinance, including but not limited to the following, penalties shall be assessable
against an owner or operator and shall be chargeable to its performance bond and/or letter of
credit in any amount up to the limits specified in City of Dubuque Code of Ordinances Chapter
2, at the City's discretion:
(A) For failure to supply information, reports, or filings lawfully
required under applicable law or agreements;
(B) For failure to render payments due under this Ordinance, any
applicable agreement or applicable law;
(C) For failure to file, obtain or maintain any required performance
bond or letter of credit in a timely fashion;
(D) For failure to restore damaged property.
(2) In addition to any other remedies hereunder, the City may seek an
injunction to mitigate or terminate a violation, or employ any other remedy available at law or
equity, including but not limited to imposition of penalties pursuant to Title I, Section 21(1).
13
TITLE I: GENERAL PROVISIONS
21: Enforcement
(3) Any failure of the City to insist on timely performance or compliance by
any person shall not constitute a waiver of the City's right to later insist on timely performance
or compliance by that person or any other person.
(4) Termination on account of certain assignments or appointments
(A) To the extent not prohibited by the United States Bankruptcy
Code, a franchise under this Ordinance shall terminate
automatically by force of law one hundred twenty calendar days
after an assignment for the benefit of creditors or the appointment
of a receiver or trustee (including a debtor-in-possession in a
reorganization) to take over the business of the owner or
operator, whether in bankruptcy or under a state law proceeding;
provided, however, that such franchise shall not so terminate if,
within that one-hundred-twenty-day period:
(i) Such assignment, receivership or trusteeship has been
vacated; or
(ii) Such assignee, receiver, or trustee has cured any defaults
and has fully complied with the terms and conditions of
this Ordinance and any applicable agreement and has
executed an agreement, approved by any court having
jurisdiction, under which it assumes and agrees to be
bound by the terms and conditions of this Ordinance and
any applicable agreement.
(iii) In the event of foreclosure or other judicial sale of any of
the facilities, equipment, or property of an owner or
operator of facilities in the public rights-of-way, its
franchise under this Ordinance shall automatically
terminate thirty (30) calendar days after such foreclosure
or sale, unless:
(a) The City has approved a transfer to the successful
bidder; and
(b) The successful bidder has covenanted and agreed
with the City to assume and be bound by the terms and
conditions binding its predecessor.
14
TITLE I: GENERAL PROVISIONS
22: Indemnification
(iv) Any mortgage, pledge or lease of facilities in the public
rights-of-way shall be subject and subordinate to the rights
of the City under this Ordinance, any applicable
agreement, and other applicable law.
(B) If a franchise under this Ordinance is terminated for any reason,
the City may, at its discretion, require the Grantee to remove its
facilities from the public rights-of-way and to restore the public
rights-of-way to their prior condition at the owner or operator's
expense, or that of their sureties. If an owner or operator whose
franchise has been terminated fails, after reasonable notice from
the City, to remove its facilities from the public rights-of-way,
such facilities shall be deemed abandoned and ownership forfeited
to the City.
(5) All remedies specified in this Ordinance are cumulative unless otherwise
expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the
exercise of a remedy or the payment of liquidated damages or penalties relieve an operator of
its obligations to comply with this Ordinance. In exercising any remedy specified in this
Ordinance, the City shall comply with any substantive and procedural requirements for
exercising such remedies in an owner or operator's franchise agreement or other authorization.
(6) The owner or operator shall pay any penalty assessed in accordance with
this Section 21 within fourteen (14) days after receipt of notice from the City of such penalty.
(7) The City may reduce or waive any of the above-listed penalties for good
cause shown.
22. Indemnification
Any indemnity provided pursuant to a franchise agreement or other authorization shall include,
but not be limited to, the City's reasonable attorneys' fees incurred in defending against any
such claim, suit, or proceeding. Recovery by the City of any amounts under insurance, the
performance bond or letter of credit, or otherwise shall not limit in any way a person's duty to
indemnify the City, nor shall such recovery relieve a person of its obligations pursuant to an
franchise under this Ordinance, limit the amounts owed to the City, or in any respect prevent
the City from exercising any other right or remedy it may have.
23. Severability. If any term, condition, or provision of this Ordinance shall, to any
extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other
respects and continue to be effective. In the event of a subsequent change in applicable law so
15
TITLE II: CABLE COMMUNICATIONS
1 : General Provisions
that the provision which had been held invalid is no longer invalid, said provision shall
thereupon return to full force and effect without further action by the City and shall thereafter
be binding on owners and operators.
TITLE II: CABLE COMMUNICATIONS
1. General Provisions
(1) Title. This Title II shall be known and may be cited as the "City Cable
Communications Regulatory Code."
(2) Further Findings and Purpose. The City of Dubuque, Iowa ("City")
finds that the further development of cable communications may result in great benefits for the
people of the City. Cable technology is rapidly changing, and cable plays an essential role as
part of the City's basic infrastructure. Cable television systems permanently occupy and
extensively make use of scarce and valuable public rights-of-way, in a manner different from
the way in which the general public uses them, and in a manner reserved primarily for those
who provide essential services to the public subject to special public interest obligations, such
as utility companies. The grant of a franchise has the effect of giving the holder extensive
economic benefits and placing the holder in a position of public trust. The City fmds that
public convenience, safety, and general welfare can best be served by establishing regulatory
powers vested in the City or such persons as the City so designates to protect the public and to
ensure that any franchise granted is operated in the public interest.
Further, it is recognized that cable systems have the capacity to provide not only
entertainment and information services to the City's residents, but can provide a variety of
broadband, interactive communications services to institutions and individuals. Many of these
services involve City agencies and other public institutions.
(3) In light of the foregoing, the following goals, among others, underlie the
provisions set forth in this Title:
(A) Cable should be available to as many City residents and
businesses as possible.
(B) A cable system should be capable of accommodating both present
and reasonably foreseeable future cable-related needs of the City.
(C) A cable system should be constructed and maintained during a
franchise term so that changes in technology may be integrated to
16
TITLE II: CABLE COMMVNICA TIONS
1 : General Provisions
the maximum extent commercially practicable into existing
system facilities.
(D) A cable system should be responsive to the needs and interests of
the local community, and shall provide the widest possible
diversity of information sources and service to the public.
(E) A cable operator should pay fair compensation to the City for the
occupation and use of scarce and valuable local public rights-of-
way.
(4) The City intends that all proVIsIons set forth in this Ordinance be
construed to serve the public interest and the foregoing public purposes, and that any franchise
issued pursuant to this Ordinance be construed to include the foregoing findings and public
purposes as integral parts thereof.
(5) Delegation of Powers. The City may delegate the performance of any
act, duty, or obligation, or the exercise of any power, under this Ordinance or any franchise
agreement to any employee, officer, department or agency of the City, except where prohibited
by applicable law.
(6) Definitions.
(A) Access Channel. Any channel on a cable system set aside by a
Grantee for public, educational, or governmental use.
(B) Basic Service. That Cable Service tier which includes all signals
of domestic television broadcast stations provided to any
subscriber (except a signal secondarily transmitted by satellite
carrier beyond the local service area of such station, regardless of
how such signal is ultimately received by the Cable System); any
public, educational, and governmental programming required by
the franchise to be carried on the basic tier; and any additional
video programming signals added to the basic tier by the cable
operator.
(C) Cable Act. The Cable Communications Policy Act of 1984,
47 V.S.C. ~~ 521 et seq., as amended from time to time.
(D) Cable Operator. Any person or group of persons (A) who
provides cable service over a cable system and directly or
through one or more affiliates owns a significant interest in a
17
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.
(J) 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.
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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 U.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 COMMUNICATIONS
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.
28
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
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TITLE II: CABLE COMMUNICA nONS
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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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 COMMUNICATIONS
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;
36
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, t02d Cong., 2d Sess., at 86 (1992).
(B) Refund checks to subscribers shall be issued promptly, but no
later than the later of -
38
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;
40
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.
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TITLE II: CABLE COMMUNICATIONS
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 III
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 Re~ulation
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;
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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:
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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
of the 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 I 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 COMMUNICATIONS
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 U.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 In
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 pnvacy
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 D.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 D.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 Obli2ations.
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. Ri2ht-of-Way Usa2e.
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 2nd day of May , 2005 .
APPROVED:
~
ATTEST:
~&k/{2J
ity Clerk
59
TITLE III: OPEN VIDEO SYSTEMS
5: Right-of-Way Usage.
AS TO FORM:
4253\05\00 I 07247.DOC
REVIEWED BY:
/hJl~
City Manager
60
EXHIBIT A
5: Right-of-Way Usage.
EXHIBIT 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-of-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-of-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 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.
4253\05\00107247.DOC
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EXHIBIT B
5: Right-or-Way Usage.
EXHIBIT B
FORM OF GUARANTEE
CORPORATE GUARANTY
THIS AGREEMENT 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 of Iowa:
We, the undersigned, a majority of whom are citizens of the 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
scientitic purposes under section 501(c)(3) oCthe Intemal Revenue Code in
Dubuque, Iowa.
III. The address of the initial registered office ottbe corporation in the state of Iowa
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 Westerman
Lee Ann James
v. The date on which the corporate existence shall begin is . (Note:
The date on which the corporate existence shall begin may be any date Dot
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 Westennan
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 II hereof. 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 sball 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 fot public office. Notwithstanding any
other provision of these articles, the corporation shall not cany 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 corresponding section of any
futw"e federal tax code) or (b) by a corporation. CODtributions to which are
deductible Wider section 170(c)(2) oftbe IAtaut Revenue Code (or the
corresponding section of any future federal tax eode).
IX. Upon the dissolution of the corporation, ...... 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. feder.a1 tax code) or shall be
distributed to the federal government, or to . state or local government, for a
public purpose. Any such assets not &0 disposed olshall be disposed of by a
court of competent jurisdiction in the county iDwhidt the principal office of the
corporation is then located, exclusively for such pUtposes 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 DUBUOUE. 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 all lawful acts and things
and to engage in any and all lawful activities which may be nec'essary, 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 furtherance 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 170( 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 corporation 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 Powers. 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 of Incorporation 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 of the 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. Speciall\1eetings. 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 ofIowa, as the place for holding any meeting ofthe 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 of such meeting, except where a
Director attends a meeting for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting ofthe 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 ifless 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 Dtrectors created by the
departure of a director originally appomted 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 ofthe Board
not to exceed the sum of $50 for each director for each meeting and further not to exceed 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 thercofto 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 ofDjrectors. 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. Ifthe 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 jlfdgment the best interests of the
corporation would be served thereby, but such removal shall be, without preJudice to the contract
rights. if any, of the 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 ,t;he signing and execution thereof
shall be expressly delegated by the Board of Directors or by th~.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 perfonn 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 Boar<~,ofDirectors, the Treasurer shall
give a bond for the faithful 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 perform 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 ofDirecrors.
Section 9. Assistant Treasurers and Assistan~ Secretaries. If required by the
Board of Directors, the Assistant Treasurers shall give bonds for the faithful discharge oftheir
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 com:mittee 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 ofthe corporation or 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 tenns 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 of the members of the corporation and until his or her successor is
appointed, unless the committee shall 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 mles adopted by the Board of Directors.
ARTICLE VII
CONTRACTS, CHECKS, DEPOSITS AND F1JNDS
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 confined 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 of the 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 purpose 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 of its 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 ofintention
to alter, amend or repeal or to adopt new by-laws at such meeting.
171585_1
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Prepared by Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
RESOLUTION NO. 200-05
DISPOSING OF AN INTEREST IN REAL PROPERTY OWNED BY THE CITY OF DUBUQUE
BY LEASE AGREEMENT 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, which Lease Agreement is attached hereto; and
WHEREAS, the City Council believes it is in the best interests of the City of Dubuque to
approve the Lease Agreement.
WHEREAS, on the 2nd day of May, 2005, the City Council, pursuant to notice published as
required by law, held a public hearing on its intent to dispose of the foregoing interest in real
property and overruled all objections thereto;
WHEREAS, the City Council believes it is in the best interests of the City of Dubuque to
approve the Lease Agreement and Parking Use Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. The City Council of the City of Dubuque, Iowa, approves the Lease Agreement
between the City of Dubuque and MCC IOWA LLC.
Section 2. The Mayor is hereby authorized and directed to sign this Resolution and the
Lease Agreement on behalf of the City of Dubuque.
Passed, approved and adopted this 2nd day of May
,2005.
Attest:
~/~/~
eanne F. Schneider, CMC
City Clerk
>
CITY OF DUBUQUE CABLE FRANCHISE AGREEMENT . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
NEW DUBUQUE CABLE AGREEMENT AND ORDI-
NANCE
On May 2, 2005, the Dubuque City Council approved a
new fifteen-year Cable Franchise Agreement with MCC
Iowa (Mediacom), and also adopted a new Cable Right-
Of-Way Ordinance. The new Agreement and Ordinance
take effect with this publication in the Telegraph Herald.
There provisions and benefits do not apply outside the
Dubuque city limits.
These documents are also available for reference at the
City's website: www.cityofdubuque.org
Questions regarding the new Cable Franchise Agreement
and Cable Right-Of-Way Ordinance may be directed to:
City of Dubuque
Cable TV Division
City Hall Annex, 1300 Main Street
Dubuque, IA 52001-4732
Phone: 563-589-4181
Email: catv@cityofdubuque.org
OFFICIAL PUBLICATION ORDINANCE NO. 28-05
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 perform-
ance 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 citi-
zens, has considered the financial, technical and legal qual-
ifications of Mediacom, and has determined whether
Mediacom's plans for constructing, operating and main-
taining its Cable System are adequate, in a full public pro-
ceeding affording due process to all parties; and
WHEREAS, the City has relied on ME!diacom's represen-
tations 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 con-
ditions 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 CON-
SISTENT WITH THE CABLE FRANCHISE AGREEMENT,
rrs FRANCHISE, AND THE TERMS AND CONOmONS
SET FORTH HEREIN; AND OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT AND THE ADEQUACY
OF WHICH IS HEREBY ACKNOWLEDGED, BE rr
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 publi-
cation: as provided by law.
Passed, approved and adopted this 2nd day of May, 2005.
~
Terranc:e M. Duggan, Mayor
Attest:
~~
Jeanne F. Schneider, CMC
City Clerk
Published officially in the Telegraph Herald the 5th day of
June, 2005.
~~
Jeanne F. Schneider, CMC
City Clerk
A CABLE FRANCHISE AGREEMENT BETWEEN CITY
OF DUBUQUE, IOWA AND MCC IOWA, LLC
June 5, 2005
Page
1. DEFINITIONS ............................................................ 1
(a) Cable Ordinance or Ordinance ............................ 1
(b) Cable Service ...................................................... 1
(c) Franchise Agreement or Agreement .................... 2
(d) Franchise Area...................................................... 2
(e) Grantee 2
(t) Gross Revenues .................................................. 2
(g) Inflation Index ...................................................... 2
(h) InstiMional Network or Network.......................... 2
0) Lateral ................................................................ 2
Ol Outage ................................................................ 2
(k) PEG ................................................................ 2
(Q Plant Mile.............................................................. 2
(m) Prior Franchise .................................................... 2
(n) Subscriber ............................................................ 2
(0) User ................................................................ 2
2. GRANT OF AUTHORITY; LIMITS AND
RESERVATIONS ............................................................ 2
(a) Grant of Authority ................................................ 2
(b) Area Served.......................................................... 2
(c) Term ................................................................ 2
(d) Grant Not Exclusive.............................................. 2
(e) Compliance With Applicable Law........................ 4
(f) Franchise Agreement Subject to Exercise of
Police Powers ...................................................... 2
(g) Approval and Effective Date ................................ 2
(h) Effect of Acceptance: .......................................... 2
(i) Claims Related to Prior Franchise ...................... 2
Ol Waivers 5
(k) No Recourse ........................................................ 2
3. TRANSFERS .............................................................. 3
4. PROVISION OF CABLE SERViCE.............................. 3
(a) Line Extension Requirements .............................. 3
(b) Continuity of Service ............................................ 3
5. SYSTEM FACILITIES, EQUIPMENT AND SERViCES.... 3
(a) System Characteristics ........................................ 3
(b) System Functionality ............................................ 3
(c) System Upgrade .................................................. 3
(d) System Infrastructure for Services to Business .. 3
(e) Technical Standards ............................................ 4
(f) Interconnection .................................................... 4
(g) Emergency Alert System...................................... 4
(h) Coordination of Trenching .................................... 4
0) Updating .............................................................. 4
01 Senior Discount .................................................... 4
6. CHANNELS AND FACILITIES FOR PUBLIC,
EDUCATIONAL AND GOVERNMENTAL USE ............ 4
(a) Access Channels.................................................. 4
(b) Capital Grant for Access Equipment
and Facilities ........................................................ 5
(c) Public Access ...................................................... 5
(d) Return Feed From Facilities ................................ 5
(e) Management of Channels .................................... 5
(f) Editorial ControL.................................................. 5
(g) Cable Service to Certain Facilities ...................... 5
(h) Institutional Network ............................................ 5
(i) Costs and Payments Not Franchise Fees............ 8
7. FRANCHISE FEE........................................................ 8
. (a) Payment to City._................................................. 8
. -(b)' Final Payment :..';.:....;.:...'....::.;.:;..'..~.;.................... 8
LEGAL NOTICE
(c) Supporting Information ........................................ 8
(d) Late Payments....:................................................. 8
(e) Audit ................................................................ 8
8. LIABILITIES ................................................................ 8
(a) Indemnification by the Grantee............................ 8
(b) Indemnification by the City .................................. 9
(c) Indemnification Procedures.................................. 9
(d) Respondent Superior ..:....................................... 9
9. PERFORMANCE GUARANTEES AND REMEDIES.... 9
(a) Performance Bond .............................................. 9
(b) Letter of Credit .................................................... 9
(c) Rights Cumulative ................................................ 9
(d) Procedures for Remedying Violations.................. 9
(e) Security Fund Procedures.................................... 9
(f) Remedies............................................................ 10
(g) Liquidated Damages .......................................... 10
(h) Shortening, Revocation, or Termination
of Franchise .............................................................. 10
10. MISCELLANEOUS PROVISIONS .......................... 10
(a) Binding Acceptance .......................................... 10
(b) Severability ........................................................ 10
(c) Grantee Bears Its OWn Costs ............................ 10
(d) Force Majeure .................................................... 10
(e) Governing Law.................................................. 10
(f) Notices .............................................................. 10
(g) Time of the Essence .......................................... 11
(h) Captions and References .................................. 11
(i) Entire Agreement................................................ 11
01 Understanding and Consent .............................. 11
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
("Mediacomj.
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 perform-
ance 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 citi-
zens, has considered the financial, technical and legal
qualifications of Mediacom, and has determined whether
Mediacom's plans for constructing, operating and main-
taining its Cable System are adequate, in a full public pro-
ceeding affording due process to all parties; and
WHEREAS, the City has relied on Mediacom's represen-
tations 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 ade-
quacy of which is hereby acknowledged,
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
1. DEFlNmONS.
Except as otherwise provided herein, the definitions and
word usage set forth in the Cable Ordinance are incorpo-
rated herein and shaD 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 amend-
ed from time to time.
(b) Cable Service: (1) the one way transmission to sub-
scribers of (i) video programming, or (Ii) other pro-
2
CITY OF DUBUQUE CABLE FRANCHISE AGREEMENT . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
LEGAL NOTICE
I
I.
I
gramming service, and (2) subscriber interaction, if
any, which is required for the selection or use of
such video programming or other programming serv-
ice.
(c) Franchise Agreement or Agreement: This contract
and any amendments, exhibits or appendices here-
to.
(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.
(f) 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 defi-
nition shall be construed so as to include all gross
revenues to the maximum extent permitted by feder-
al and state law, except to the extent specifically
excluded in Section 1(t)(2), and encompasses rev-
enues 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 fran-
chise 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 require-
ment 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 pay-
ments or consideration received from program-
mers for carriage of programming on the System;
revenues from rentals or sales of Converters or
other equipment; studio rental, production equip-
ment, 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. 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) Outage: This term shall have the meaning given to it
in Section 6(h)(2)(I) herein.
(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 persona organiiatiomiUSil!ltJ a.channel or
"- u ~ 1.0:;' "-J\. It I )ltj':1l .'~,::j( G ':'1 ~I. .l:l,,: \J r.:,';.li
'-
1-
_.'-",",-,,-,:~::=,-_-<.-~.;.=c
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 RESERVA-
IIQNS
(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 serv-
ices may be provided pursuant to Section 6(h) here-
in. 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 purpos-
es of providing any service other than Cable Service,
nor prohibits the Grantee from doing so. The fran-
chise 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, oper-
ate 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 whatso-
ever the Council does not pass such an ordinance,
this Franchise Agreement will be of no further force
and effect.
(b) Area Served. The Franchise is for the Franchise Area,
as that term is defined herein.
(2) The Grantee shall offer service to all areas locat-
ed 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 ~hortened 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, sub-
ject to applicable state law, as such law may be sub-
sequently 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 provi-
sion were repeated herein, and irrespective of
whether any such provisions be so repeated.
(f) 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 regu-
late the Grantee and the construction, operation and
maintenance of the Grantee's Cable System, includ-
ing, 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 pow-
ers, the right to adopt and enforce applicable zoning,
building, permitting and safety ordinances and regu-
lations, the right to adopt and enforce ordinances
and regulations relating to equal employment oppor-
tunities, and the right to adopt and enforce ordi-
nances and regulations containing .right-of-way,
telecommunications, utility and cable television con-
sumer protection and service standards and rate
regulation provisions, except to the extent that an
el<8rmse 'blSud:l POWlttS.Wlilldrct .itapair, tbe 'obliga-. '"
ilrJi~dy...),(J ,t~~tLc ;J f.::n:H-;JTICij').;:. ;!J'J(.I;:,)ft.1 ~:l\.'I;
tions 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:
(1) accepts and agrees to comply with each provi-
sion 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 pro-
ceeding 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 tetlT1 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 effec-
tive 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 ul'lder the Prior Franchise to indemni-
fy 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 perform-
ance 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.
(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, cQsts, 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 iJndef; the City's control, exoept acts
. .
c I = I; I~ l.. I ~ t. ,t J ". I J :j I
(..,. J ~ I -:. v t J
CITY OF DUBUQUE CABLE FRANCHISE AGREEMENT . TELEGRAPH HERALD . SuNDAY, JUNE 5, 2005
and omissions of the City that involve gross negli-
gence or intentional misconduct by the City.
TRANSFERS
The Grantee shall comply with all requirements of the
Ordinance and applicable law regarding transfers.
PROVISION OF CABLE SERVICE
(a) Une Extension Requirements
(1) Existing boundaries. Within the City's bound-
aries 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 exist-
ing 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 here-
in, 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 pro-
vides 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) New areas. In any area annexed by the City
after the Effective Date of this Agreement:
(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-resi-
dential subscriber where the average poten-
tial subscriber density is at least thirty (30)
potential subscribers per linear mile of distri-
bution 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 sub-
stantially equivalent level of service (includ-
ing but not limited to PEG access and emer-
gency override capability provided by
Grantee), justify a complete, partial, tempo-
rary, and/or conditional waiver of this
requirement, which waiver shall not unrea-
sonably 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 con-
strued to prevent the Grantee from extend-
ing service to all units in an annexed area at
an earlier date.
(b) Continuity of Service
(1) The Grantee shall ensure that all Subscribers
c_ rec:eilfe continuous.uriinlerrup'ed seBlice., 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 main-
tain 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 condi-
tions 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 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 aban-
doned 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 FACIUTIES. 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 sup-
plies capable of providing power to the system
for not less than three hours according to manu-
facturer's reasonable specifications, in view of
local conditions, in the event of an electrical out-
age. 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 main-
tain service to Subscribers who have power for
not less than three hours in the event of an elec-
trical 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 deterio-
ration (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 dead-
lines for completion of that work.
(2) < lM..Grehtse shall .ctl)R1ply .wR/;l,alI FCC f'eQUIa.-'.
tions regarding scrambling or other encryption
3
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 shalf offer every
Subscriber the opportunity to 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 program-
ming 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 program-
ming 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 recep-
tion of services for the hearing impaired. In
addition, the Grantee must have means avail-
able, 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 char-
acteristics:
(A) bandwidth of at least 750 MHz on all active
components and at least 1 GHz for all pas-
sive 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 permitting a current minimum average
of approximately 512 Kbps upstream.
(2) The Grantee shall implement status monitoring
throughout the Cable System that will continu-
ously' 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 car-
ried on the Cable System are transmitted to the
headend over direct fiber 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 broad-
cast 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 :tbetGliamtee's own.use in <offering, 5eflk-, ,
ices to businesses, over and above any fibers
II'"
4
..... ) 1111 .... ~ ; ,. If >-.J: .,.,
CITY OF DUBUQUE CABLE FRANCHISE AGREEMENT . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
LEGAL NOTICE
installed for the I-Net or for the offering of servic-
es to residential Subscribers, to the edge of the
Dubuque Industrial Center West and the
Dubuque Technology Parle
(2) Wherever the Grantee installs fiber in the I-Net
pursuant to this Section REF _Ref43774B002 \w
\- MERGEFORMAT 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 necessi-
tated by weather Conditions) after a customer
signs an agreement with the Grantee on reason-
able 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 addi-
tional 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.
(f) 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) E~cy 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-loca-
tion-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 th.e Grantee is not able to avoid such pre-
emption, 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 pro\lide the Gity with reasonable
advance notice of any plans"to install under-
ground facilities in the Grantee's trenches in the
City's public rights-of-way, so that the City may
at its discretion instaH conduit and/or fiber of its
own at the same time. The City shall provide
Grantee with reasonable advanc.e notice of any
planned street openings in the City's public
rights-of-way, so that Grantee may at its discre-
tion install facilities of its own at the same time.
(2) A party instaHing conduit and/or fiber pursuant to
section 5(h)(1) shall not be required to pay a
share of the t~ching cost. However, if the City
either (A) establishes aC,Ommunications utility or
its equivalent, or (B) competes directly or indi-
rectly, 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)(1) at any time from the Effective Date for-
ward and shall continue to pay for Mure installa-
tions throughout the term of this Franchise
" "J i Ag~;lan(hM~"'.jDay half of the
City's trenching costs where Mediacom has
installed conduit and/or fiber in the City's trench-
es 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 wor1< together to
develop routine procedures by which this coordi-
nation can be accomplished.
(i) Updating
(1) No later than October first of each year begin-
ning 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 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 neces-
sary 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 there-
on, 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 deter-
mine 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 fun"sshall be distributed
equallyarnong 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 pro-
grammingservices 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 shaU be eligible for this discount if they
provide documentation of age.(65 or older), residen-
cy at the service address,and that at least one utility
is billed in the senior citizen's name at the service
address.
CHANNELS AND FACILITIES FOR PUBUC. EDUCA-
TIONAL 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 govem-
viJ 0<;!"'I!~JiN..".,t}ic~n..~.~ in,addltipn
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 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 addi-
tional charge, and so that the channels are view-
able by the Subscriber without the need for addi-
tional 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 pro-
gramming produced in such format.
(4) Access channel assignments shall be the same
throughout the System. Access channel assign-
ments 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 reas-
signment, 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 program-
ming that may be accessed by Subscribers
through use of standard digital equipment com-
patible 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
captlcity on terms to be determined .at the time
of agreement. If the City wishes to store addi-
tional programming on its own servers or facili-
ties, 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 desig~te,,:tl:ducationa'
and Govemmental 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 pro-
grammer or access channel manager has more
, , ~Yf)~ t~ ,elSpen~ 9'1~~ ,the activity
in which it is engaged is provided on a for-profit
...~"',~.._---~~
CITY OF DUBUQUE CABLE FRANCHISE AGREEMENT . TELEGRAPH HERA~ . SuNDAY, JUNE 5, 2005
basis by private entities in other communities or
the City. Nothing prevents the City from author-
izing charges to users or viewers to pay for serv-
ices such as fees for video class instruction or
charges to recover the cost of special use equip-
ment, 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 dis-
tinct from support for PEG Access video pro-
gramming), at any time while the Franchise
remains in effect (the "PEG Capital Support .
Fundj. Any unused funds shall be retumed 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 rev-
enues 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 ~ 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 insti-
tution, organization or agency with either a prin-
cipal 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 pro-
duction of PEG programming. In weeks includ-
ing one or more legal holidays such fifty-seven
(57) hour requirement shall be reduced accord-
ingly. 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.
(d) Return Feed From Facilities
(1) The Grantee shall connect the following access
origination sites by dedicated fiber-optic upstream
feeds to the headend, including both the fiber
itself and all terminal equipment necessary for
transmission of the signals for each access chan-
nel to be originated there in accordance with the
schedule for connection of I-Net sites attached as
ExhibitB, except for the public access studio,
which shall be connected during the first year of 1-
Net construction).
(A) Public access studio
(8) Public school central administrative office at
The Forum, Chaney Road
(q. MaSter cootttil.r06m at Lares College
. .. l ~ .. - \- '. . , . ~. .. . ~ ,; . ~ J .
., ~ -; ... ., ~. II.. ....\,. I....i ~~ t ,~ '4. ..;,. .
(D) City Hall Annex
(2) The dedicated connections required by Section
6(d)(1) 'ihall be designed and built to include all
equipment, including but not limited to laser
transmitters, receivers, modulators, and proces-
sors, drops and wiring, so that each such center
can send signals to the headend on at /east two
channels initially and up to two additional chan-
nels if additional downstream channels are acti-
vated for PEG use; and so that the facilities can
each remotely and without assistance from the
Grantee or access to its headend (i) receive sig-
nals from distant locations; 00 route signals origi-
nated at that center or at other locations onto
any of the access channels on the regular sub-
scriber network; and QiO otherwise control the
signals to allow for smooth breaks, transitions,
insertion of station IDs and other material.
Grantee shall bear the cost of acquiring and
maintaining all fiber and equipment necessary to
meet this requirement, except that either the City
or the owners of the sites shall be responsible
for acquiring and maintaining the transmission
equipment at the studio (as distinct from the
headend) end of the connections for the loca-
tions listed in ~~ 6(d)(1)(8), (C), and (D) for the
educational and governmental channels.
(3) Grantee shall ensure that programming received
via the upstream feeds is retransmitted as sent
by the PEG programmer, without changing the
attributes of the signal in such a way as to effec-
tively degrade the output. The facilities and
, equipment provided would not be adequate if
there would be more deterioration on channels
set aside for public, educational and govemment
use on the I-Net or subscriber network than on
other channels on the cable system.
Deterioration refers to any signal problem reflect-
ed in FCC technical standards, including, but not
limited to, ghost images and other interference,
distortions, degradation of chl"OlTl8 and lumi-
nance, and imperfections.
(4) The Grantee shall continue to maintain and oper-
ate the existing upstream connections until the 1-
Net is fully functional as specified in ~ 6(h)(13)
and as such will allow transmission of PEG pro-
gramming from the Carnegie-Stout Public
Ubrary and the Dubuque County Courthouse.
Grantee shall not be required to provide the
transmission equipment for the Camegie-Stout
Public Ubrary and the Dubuque County
Courthouse once the City migrates the upstream
feeds from such locations to the I-Net.
(e) Management of Channels
(1) The five access channels shall be managed as
follows:
(A) Two public access: by Grantee
(B) One governmental access: by the City
(C) Two educational access: one by the
Dubuque Community School District; one
jointly by the other educational institutions in
the City
(2) The City may at any time designate one (1) or
more entities, including a non-profit access man-
agement corporation, to perform any or all of the
following functions:
(A) to manage any Public, Educational, or
Government Access Channel;
(8) to establish policies for the use of access
channels and facilities; and/or
(C) to manage any necessary scheduling or allo-
cation of capacity on the Institutional
Network.
(3) In the event that the City designates an entity
other than the Grantee to manage the Public
Access channels, the City will provide all Public
Access programming to Grantee for distribution
on Grantee's system simultaneously with distri-
bution of such programming by any other
provider authorized to distribute such program-
ming.
(f)' -Edit(9ria1 Co},fl'dl: EXtePf.aS .expteSSly p&rmitted by
'"~;-"""""":"~',''':;,J''..' ,-"': :~....L:'o/c.,'~ ,.'~:~....~':i..:" \:....~ -h'
5
federal law, the Grantee shall not exercise any edito-
rial control over the content of programming on the
designated Public, Educational and Governmental
Access Channels (except for such programming as
the Grantee may produce and cabIecast on such
Channels).
(g) Cable Service to Certain Facilities
(1) Upon request of the City, Grantee shall without
charge provide one activated outlet for Cable
Service at each school, and each facility owned
or leased by the City, as shall be designated by
the City from time to time. For annexed areas,
such service shall be provided in accordance
with the line extension requirements set forth in
Section 4(a)(3) above.
(2) The institution being served may further distrib-
ute within the school or facility any Cable Service
it lawfully receives, consistent with the mission of
the institution, at its own expense.
(3) The Grantee shall provide Basic Service free of
charge to those facilities specified in Section
6(g)(1) herein. At Its sole discretion, the Grantee
may also provide higher levels of service to such
facilities free of charge.
(4) The Grantee shall also provide a converter,
decoder, or similar equipment if necessary for
user equipment (such as television sets) to
receive Basic Service at each such outlet, with
all capabilities or options afforded at a given time
by the System. Grantee shall ensure that all sig-
nals are provided at such outlets with sufficient
strength that they can be further amplified to dis-
tribute them throughout the site.
(5) The Grantee shall install a maximum 2oo-foot
service drop and maintain one connection for
Internet access to one computer terminal in each
school and library within the Franchise Area.
Any additional costs will be bome by the
requesting school or library on a time-and-mate-
rial basis. All schools and libraries receiving
such service will enter Into the Grantee's stan-
dard service agreement. In the event that such
institutions wish to create an internal network,
the City agrees that such institutions will contact
the Grantee for a proposal to provide such net-
working, but the institutions shall be under no
obligation to accept such a proposal.
(h) Institutional Network
(1) DefInitions. For purposes of this Section 6(h):
(A) "Authorized Users" means those parties
identified in section 6(h)(9)(A).
(B) "Dark Aber" means fiber optic strands that
are capable of carrying voice; video, and
data transmissions but that have not yet
been activated.
(C) "I-Net Coordinator" means a Person desig-
nated by the City for the purposes specified
in this section 6(h).
(D) "'-Net Service Area" means the area speci-
fied in section 6(h)(2)(E).
(E) "Institutional Network" or "I-Net" means a
fiber-optic network related to the Grantee's
cable system that is to be designed and
constructed by the Grantee and is not gen-
erally available to subscribers of the
Grantee's cable system.
(F) "Primary Contact" means those Persons
indicated in section 6(h)(9)(B).
(G) "Work" means whatever is required of the
Grantee to perform and complete. its duties
under this Section. The term does not refer
to activities of the Grantee required to per-
form and complete its duties under other
Sections of this Franchise Agreement,
including but not limited to construction of
subscriber network facilities.
(2) Fiber Construction
(A) The Grantee will construct the I-Net at the
Grantee's expense, linking the public, educa-
. .~~ .: o'.,t/QRal.arrdgcWertirhentalfacWties-in the City
~?....:.; .t,JJ;>...j~"'!.I'\' ~ .:I~e.j',,, c;i~J ../ .:;j J'-,t",! i' \Ji'~
6
CITY Of DUBUQUE CABLE FRANCHISE AGREEMENT . TELEGRAPHHERALD . SUNDAY, JUNE 5, 2005
LEGAL NOTICE
itemized on Exhibit B, in accordance with the
conditions set forth in this Franchise
Agreement.
(B) The I-Net shall be a bidirectional, fully ftber-
optic network designed and constructed
with single-mode fiber,i" a design so that
each of.the designated service locations can
originate and receive fully interactive video,
data and voice signals. .
(C) The Grantee shall installl-Net fiber to speci-
fied sites as designated and described in
Exhibit B. . The maiO ring shall have twelve
fibers, with six fibers to sites not on the ring
(where Exhibit B indicates which sites are on
the ring).
(D) The Grantee shall collocate I-Net fiber with
subscriber network fiber whenever reason-
ably feasible based1Wl cable industry praC-
,,",. tices:The I-Net fibers shall be separate from
any fibers utiJized for the subscriber network,
and the City shall have only such rights in
the I-Net fibers as are set forth in Section
6(h)(6).
(E) I-Net fibers shall be terminated and labeled
using industry standard connectors in an
area specified in the I-Net design described
in ~ 6(h)(3) within the headend facility (the "1-
Net Service Area'). The I-Net Service Area
shall have space for four standard nineteen-
inch racks for the I-Net Users' use in a
secure building, sufficient heating and air
conditioning. -48 V DC and 120 V AC power
shall be available for the I-Net Service Area,
including backup power as specified for the
system generally.
(F) The Grantee.shaD have personnel available
to provide City personnel with access to its
I-Net Service Area from 8 am. to 6 p.m.
each business day, and at a11.other times
shall have personnel available by mobile
telephone to provide City with access within
ninety (90) minutes .of a call from a Primary
Contact.
(G) Single-mode fibers will be built to each I-Net
site as designated in Exhibit B. . At each 1-
Net site, at the City's option, either (i) fibers
shall be terminated using industry standard
connectors at a demarcation point to be
agreed upon by the Grantee and the User up
to fifteen feet inside the building entry wall
and consistent with the Grant~'s direction
of approach to the building, consistent with
the FCC's rules as amended from time to
time (the "Demarcation Point'1, or (ii) the
Grantee shall provide a coil of fiber-optic
cable, without termination or connector, of a
length reasonably requested by the User to
permit the User or the facility owner to bring
the connection further inside the building
beyond that Demarcation Point in accor-
dance with normal industry practice. Any 1-
Net fiber starting at the Demarcation Point
and extending outward from the building
shall be deemed to be on the Grantee's side
of the Demarcation Point, and any I-Net fiber
starting at the. Demarcation Point and
extending further inside the building shall be
deemed to be on the user's side of the
Demarcation Point. The City shall specify
the Demarcation Point in writing to the
Grantee for each I-Net site listed in Exhibit B
at least 90 days prior to the commencement
of construction for each such site.
(H) The fiber-optic plant shall be installed to
industry standards. In no case shall fiber
losses exceed 0.35 dBlkm. at 1310 nm, and
0.25 dBlkm. at 1550 nm. Splices shall not
exceed 0.1 dB per splice, and connectors
shall not exceed 0.75 dB per connector pair.
Maximum signal loss for any link shall not
exceed the manufacturer's passive 'cable
. , < ,. j":: atterlUatldn1specblioJ'lsi adJusted fop, cable
lengths, splice loss and connector loss. The
Grantee shall provide doCumentation of
acceptance testing pursuanfto ~ 6(h)(4).
(Q Grantee shall maintain the I-Net fiber plant at
a high level of reliability and will ensure that
such I-Net fiber p/antdoes not have an
unreasonable number of outages as com-
pared with other fiber-based institutional net-
works provided by cable operators pursuant
to cable franchises.
(i) The fiber I-Net shall be considered as
experiencing an "outage" when any
Grantee-provided fiber optic network
component or Grantee-provided intercon-
nect precludes or substantially impairs
the transmission of information on the 1-
Net or a portion thereof..
00 "Outage" conditions shall not include (A)
scheduled preventive maintenance as
Iongas theCity's ,~Net Coordinator is
notified at least five business days in
advance, or (B) force majeure.
(J) Aerial cable for the I-Net may be installed
free-standing or overlashed to existing
strand. New underground fiber optic cable
shall be buried in conduit Such as that com-
posed of concrete, PVC pipe, or polyethyl-
ene pipe.
(I<) The Grantee shall begin construction of the.
I-Net within three months after the Effective
Date. Grantee shall complete construction
of the I-Net plant by the end of eighteen (18)
months after the Effective Date. Construction
of the sites designated as CorelRing sites in
Exhibit B shall be completed within one year
after the Effective Date.
(L.) In addition to the sites specified in. Exhibit B,
if the City agrees by one year after the
Effective Date to provide half the cost of
constructiOn to the four additional sites as.
specified below, and by eighteen months
after the Effective Date actually provides half
the cost of construction to the Grantee.. the
Grantee shall in the same way connect'those
sites to thel..,Net within two years after the
Effective Date. The four additional sites are:
(i) ArmylNavy Reserve, 10763 Airport Road
(type of use: R, fibers: 6)
(iO Army Corps of Engineers, Lock and Dam
#11 Eagle Point Drive (type of use: R, .
fibers: 6)
(!i0 National Guard, 195 Radford Road (type
of use: R, fibers: 6)
(iv) U.S. Coast Guard, 60 East First Street
(type of use: R, fibers: 6)
(M) All I-Net wiring on the User's side of the
Demarcation Point and-all I-Net electronics
are the sole responsibility and property of
the User, provided, however, that the City
may use monies from the PEG Capital
Support Fund at its discretion for such wiring
and electronics. All costs associated with
locating 'or repairing any failure which is
reported to the Grantee but which subse-
quently is determined to have occurred on
the User's side of the Demarcation Point
shall be paid for by the User, except to the
extent that the Grantee's negligence or
intentional misconduct caused such failure.
(N) All costs associated with locating or repair-
ing any failure which is determined to have
occurred on the Grantee's side of the
Demarcation Point shall be the responsibility
of the Grantee pursuant to Section 6(h)(8),
except to the extent that the User's or the.
City's negligence or intentional misconduct
may adversely affect such equipment and
facilities have caused such failure.
(3) Coordination of Design and Construction of I-Net
,", "(A)''fhe Gl'antee sJlIall.perfol1l'l continuity'tests for 1-
J' 'NElfeegmeflt8,lrfpt;aeesas-danStNctic:iln is com-
pleted.
(B) The Grantee shall submit detailed site plans for
design and construction of each I-Net segment
consistent with ExhibitB at least forty-five days
prior to the anticipated start ~f construction on
that segment.' The City shall review and approve
such detailed site plans at least ten days before
the anticipated start of construction of that seg-
ment, and before the Grantee begins actual con-
struction of the segment. Such approval shall
not be unreasonably withheld.
(C) The I-Net design shall include specification of
the industry standard connectors to be used and
the demarcation points for alii-Net sites.
(D) The Grantee shall coordinate its design and con-
struction planning with the City so that, in addi-
tion to the notice provided to the City pursuant
to the system design submission process gener-
ally.ttle City shall have as much notice as rea-
sonabIypossible so that it can plan for activation
and use of the I-Net as the Grantee builds out
the I-Net fiber.
(E) The City shall notify the Grantee in writing prior
to the activation of any I-Net segment.
(4) Acceptance. Construction standards shall be as
specified in the Ordinance. The acceptance proce-
dure for each I-Net site is as follows: ten (10) busi-
ness days in advance of testing, the Grantee shall
inform the I-Net Coordinator of any continuity test.
The City shall have the option to be present at the
test. The Grantee shall perform the test after termi-
nating the fibers on both ends and will conduct the
test from the connector output at both 1310 nm and
1550 nm using an optical time.domain reflectometer
. (OTDR) from both ends of the fiber (at the user site
and at theheadend or aggt13gation site). The
Grantee shall submit the continuity test results to the
City; the City may require re-testing of the segment if
it is not satisfied with the results of the Grantee's
tests; The results shall be deemed accepted if the
City does not object to such results wit,hin ten (10)
business days.
(5) Wammty. The fiber installed by the Grantee pur-
suant to this Section shall be warranted against
defects in materials and workmanship for 12 months
after acceptance. This warranty is in addition to, and
does not relieve the Grantee from, its maintenance
responsibilities pursuant to Section 6(h)(8).
(6) Indefeasible Rights of Use
(A) The City shall possess the indefeasible right to
use fiber optic plant dedicated to the I-Net and
any extensions or replacements thereof installed
by the Grantee, subject only to such mechanic's
or other liens as Grantee may have pursuant to
state law (the "'ndefeasible Rights of Use"). The
Indefeasible Rights of Use shall be coterminous
with this Franchise Agreement.
(B) In order to protect the City's right to continue
using the Institutional Network pursuant to this
Franchise Agreement, the Grantee shall cooper-
ate with the City in recording its indefeasible
right of use interest in the fibers as defined in
this Franchise Agreement with the State
Department of Assessments and Taxation, the
City Clerk, or such other office as may be appro-
priate.
(7) Disposition of I-Net. Upon termination of this
. Franchise Agreement, the City shall have the option
to purchase the I-Net from Grantee at a price deter-
mined as follows:
(A) Beginning upon expiration of the fifteen-year
Term of the Franchise Agreement, provided such
Franchise Agreement is not terminated or
revoked prior to that date, the purchase price
shall be an amount equal to the net book value
of the I-Net as measured by the cost of the I-Net
less the accumulated depreciation of the'I..Net
" , 'assets with bot~ costand acaumulated depreci-
CITY OF DUBUQUE CABLE FRANCHISE AGREEMENT . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
7
ation computed in accordance with Generally
Accepted Accounting Principles and consistent
with the amounts arid methodologies used to
report the same to shareholders ("Net Book
Value"); or
(B) If the Franchise Agreement is terminated or
revoked in accordance with the terms of this
Franchise Agreement and Ordinance prior to the
expiration of its Term, the purchase price shall be
an equitable amount taking into consideration
the value of the I-Net to the City and other
Authorized Users, but in no event less than the
Net Book Value as of the date of termination or
revocation.
(8} Maintenance. The Grantee shall maintain, repair
and, as necessary, replace I-Net fiber plant on the
Grantee's side of the Demarcation Point in accor-
dance with the following procedures and conditions:
(A) Preventive and Routine Maintenance. The
Grantee shall perform routine and preventive
maintenance on I-Net plant in the same time and
in the same fashion as routine and preventive
maintenance are performed for the subscriber
network, without charge to the City or other
Users. In the course of performing routine and
preventive maintenance, the Grantee shall use its
best efforts to identify potential trouble condi-
tions warranting repair or replacement of I-Net
plant not bundled together with subscriber net-
work plant. The Grantee and the City shall as
promptly as practicable rePOrt potential trouble
conditions to the other party.
(B) Outage Categories. Response and restoration
times are determined by the category of service
outage as follows:
(i) Critical Outage: Loss of service to one of
the fiber routes feeding a critical facility. A
maximum of twenty-five such critical fiber
routes will be designated by the City by writ-
ten notice to the Grantee after the Effective
Date and before completion of the I-Net.
The City may subsequently change which
fiber routes are designated critical, as long
as the total number does not exceed the
maximum of twenty-five specified above.
Any such change shall be provided by the
City to the Grantee in writing.
(ii) Major Outage: Total loss of service to an 1-
Net site other than one listed as critical pur-
suant to Section 6(h)(8)(B)(i).
(iii) Minor Outage: Loss of service on a single
fiber to any I-Net site where any traffic can
be placed immediately on another fiber at
that site. If it is not possible to reroute traffic
in this way immediately, the outage is a
Major Outage.
(iv) Service Interruption: Reduction in signal
throughput to the point where the signal on a
'. circuit falls below acceptable standards.
(C) Response to Outages. The response time (the
point at which the Grantee is engaged in restora-
tion of service) for all Service Outages, whether
reported to the Grantee by the User or inde-
pendently identified by the Grantee, shall be as
specified in Section 6(h)(8)(F). Upon identifica-
tion of a Service Outage, the Grantee shall, with-
in such response time, have qualified personnel
on site to investigate the outage, assess the
cause and commence necessary repairs. To the
extent that necessary repairs resulting in restora-
tion of connectivity on the I-Net can be immedi-
ately accomplished, the Grantee shall effect such
repairs in connection with its investigation of the
cause of the Service Outage. To the extent that
repairs cannot be immediately effected, the
Grantee shall, within the response time, inform
the City I-Net Coordinator of the apparent cause
of the Service Outage, the anticipated time for
restoration of connectivity.
" ,.(0). Restoration ~f-Service. ,." .
I ,L l' :L r ~} "The.Grantee shaU,. tel.the: lin&OOml;lm extent
practicable, effect restoration of connectivity
of any category of service involving I-Net
plant that is bundled together with sub-
scriber network plant at the same time as
restoration of co-located subscriber network
plant.
(ii) The Grantee shall effect restoration of con-
nectivity of I-Net plant that is not bundled
together with subscriber network plant as
promptly as practicable within the estimated
restoration times reported to the City pur-
suant to Section 6(h)(8)(F) and shall use its
best efforts to effect such restoration within
the service objectives set forth in Section
6(h)(8)(F).
(iii) In the case of a Service Outage involving
more than one category of Service Outage or
multiple service outages involving more than
one category of Service Outage, the Grantee
shall restore connectivity in the order speci-
fied in Section 6(h)(8)(B), or such other order
of priority as the City reasonably requires. In
all cases involving Service Outages resulting
from I-Net plant that is bundled together with
subscriber network plant, the Grantee shall
effect restoration of connectivity of any cate-
gory of service involving I-Net plant that is
bundled together with subscriber network
plant at the same time as restoration of co-
located subscriber network plant.
(E) Cost of Maintenance. The Grantee shall provide
maintenance for I-Net fiber plant without any
charge to the City or any other Authorized User,
except for any maintenance required due to any
negligence or intentional misconduct of the City
or any other Authorized User.
(F) Response and Restoration Times. For response
and restoration of service as specified in
Sections 6(h)(8)(B)(iv) and 6(h)(8)(IJ), the Grantee
shall respond as soon as practicable, but within
the following time frames, commencing from the
time the Grantee (i) obtains actual knowledge of
the problem or (ii) receives notice of the problem
from the I-Net Coordinator (collectively "Notice").
All permanent repairs shall be completed within
thirty (30) days after Notice, unless otherwise
agreed to by the City.
(i) Critical Outage: Response on site within two
hours after Notice, minimum temporary
repair (fully operational connectivity, end to
end) completed within four hours after
Notice.
(ii) All other (Major Outage, Minor Outage, and
Service Interruption): Response within two
hours after Notice between 8 a.m. and 6
p.m. on bwsiness days and four hours after
Notice otherwise; temporary repair complet-
ed within eight hours after Notice.
Where, for reasons beyond the Grantee's
control, restoration of service or permanent
repair cannot be completed in the above
time periods even with the exercise of all
due diligence (for example, where the
Grantee is delayed in obtaining access to
poles or conduits or facilities), the Grantee
shall complete the restoration of service in
the shortest time practicable and permanent
repair within thirty (30) days of completion of
a temporary repair.
(G) For purposes of this Section 6(h), the term
"Maintenance" shall mean any action required to
restore physical fiber optic connectivity on the
Grantee's side of the Demarcation Point to the
performance standards specified in Section
6(h)(2).
(H) If any fiber optic cable in which the City has an
Indefeasible Right of Use should be cut or dam-
aged, and the responsible party is identified,
then the City shall support the Grantee's claims
for damages against the responsible party.
, , @)-: :l~ the 8Ifenttt.latil,pljl"J"llitll)' ~ Ellidesignee
. -.., ., ~1(lf}~~~e,f~~(8nd
Grantee responds on-site and determines that
the I-Net is functioning properly on Grantee's
side of the demarcation point, such trouble call
shall be deemed a "False Trouble Report." After
an Authorized User accumulates four False
Trouble Reports in one calendar year, Grantee
may charge, and the City shall require Authorized
User to pay, a False Trouble Report Fee in an
amount not to exceed $50 each for the fifth
through eighth False Trouble Report in the same
calendar year and an amount not to exceed
$100 each for each the ninth and each additional
False Trouble Report in the same calendar year,
(9) Use
(A) The parties authorized to use the I-Net
("Authorized Usersj shall be, to the extent
approved by the City:
(i) tho~ entities for which I-Net sites will be
constructed pursuant to Exhibit B;
(iI) Additional local, state and federal govern-
ment entities, educational entities (including
but not limited to schools and museums),
and entities jointly approved by the City and
Grantee, that have executed agreements
with the City which include commitments for
non-commercial use of the I-Net and are
subject to the same restrictions as are simi-
lar entities pursuant to sections 6(h)(9)(C),
6(h)(9)(D), and 6(h)(9)(E).
(B) The City shall require all Authorized Users to pro-
vide the City and Grantee name and contact
information for a "Primary Contact," including
24-hour telephone contact information, and to
timely update such information as it changes
from time to time. The Primary Contact shall
have primary responsibility for providing access
to Grantee as necessary for Grantee to assess,
repair or perform corrective measures at I-Net
locations. Unless otherwise specified by the City
from time to time, the Primary Contact for all City
I-Net sites shall be the I-Net Coordinator.
(C) The City shall not use, or permit any Authorized
User to use, the I-Net for resale or for commer-
cial purposes. "Commercial" use does not
include (by way of example and without limita-
tion) Internet access by Authorized Users, or
Internet access by visitors to public libraries.
(0) Those Authorized Users designated as
"RestrictEKl" ("R") or as "Emergency" ("E") in
Exhibit B, such as Iowa state sites and colleges,
may not use the I-Net on a regular basis for com-
munications that travel over facilities that are not
part of the I-Net or of the institution's own inter-
nal network, except that use for reception and/or
distribution of noncommercial public service con-
tent shall not be restricted.
(E) Those Authorized Users designated as
"Emergency" ("E") in Exhibit B, such as hospi-
tals, may. use the I-Net only for community emer-
gency purposes, including emergency readiness.
(F) Prior to permitting any Authorized User to con-
nect to and/or use the I-Net, the City shall obtain
a written agreement with such Authorized User
that prohibits commercial use of the I-Net or any
use inconsistent with this Franchise Agreement.
Grantee shall be an intended third-party benefici-
ary of such agreements. City shall have the pri-
mary obligation to enforce such agreements.
(G) In the event that City learns that an Authorized
User's use of the I-Net is in conflict with the
restrictions contained in this Franchise
Agreement, City shall: (1) promptly provide writ-
ten notice to Grantee, stating with specificity the
identity of the Authorized User and the noncon-
forming use; (2) promptly serve written demand
on Authorized User to cease and desist such
use; and (3) if the Authorized User fails to com-
ply with such cease and desist demand, discon-
nect or disable such Authorized User's access to
-
r',~~"'~J~d~f>~(>"I')"r~"".:;i",YlrJ''''1 }' 1'1' t"."" Y.;' :">
"!rj,:,(H}ll"~~ ~fEI{It~~fl.iiJ"~~,rJ9JG9ntrDl.,?esponsibility
8
CITY OF DUBUQUE CABLE FRANCHISE AGREEMENT . TELEGRAPH HEIW.D . SUNDAY, JUNE 5, 2005
LEGAL NoTICE
or liability for the signals distributed over the
fiber optic components of the I-Net by the City
or other Authorized Users or for their benefit.
(I) The I-Net obligations included in this Agreement
do not create any rights in or enforceable by any
Authorized Users, or other Persons, other than
the City.
(J) The conditions specified in this Section 6(11)(9),
and generally in this Section 6(11), shall not apply
to any facilities or equipment other than the dark
fiber constructed by the Grantee pursuant to
Section 6(h)(2), except to the eXtent and during
the period that such other facilities or equipment
are connected to and operating inconjunctiOcn
with the dark fiber constructed by the Grantee
pursuant to Section 6(11)(2). .
(10) Security. The Grantee shall not in any way co.".,t
promise the physical, optical, electronic, or signal
transmission security of Authorized User communi-
cations transmitted over the I-Net, except as
required by law.
(11) Subcontractors
(A) A subcontractor is an entity which has a direct
contract with the Grantee to perform a portion of
the Work.
(B) The Grantee shall not enter into a subcontract
. with a proposed subcontractor with reference to
whom the City has made timely and reasonable
objection: The Grantee shall not be required to
subcontract with any party to whom the Grantee
has objection.
(12) ICN Units
(A) The Grantee shall continue to maintain and oper-
ate all existing links to the Iowa Communications
Network ("ICNi, as such links were in operation
on January 1, 2005, without charge to the City,
any ICN user or other party, as long as Grantee
is not charged for such links by ICN.
(B) Nothing in this Agreement shall be construed to
prevent the City from installing additional links to
the ICN, at its own expense, or from intercon-
necting such links with the I-Net as long as any
such interconnection is consistent with. the
requirements related to use of thai-Net specified
herein.
(13) Current I-Ne~
(A) The Grantee shall continue to maintain and oper-
ate the existing Institutional Network as it exists
as of January 1, 2005, until the City switches all
its current institutional network operations to the
I-Net.
(B) The Grantee shall assist the City in migrating its
existing institutional network applications to the
I-Net.
(14) Other Provisions
(A) If the Grantee performs any of the Work knowing
it involves a recognized and material error, incon-
sistency or omission in this Section without
notice to and approval of the City, the Grantee
shall bear the cost of correction. If the City per-
mits the Grantee to perform any of the Work
knowing it involves a recognized and. material
error, inconsistency or omission in this Section
without notice to and approval of the Grantee,
the City shall bear the cost of c.orrection. The
Grantee's provision of its plans to the City shall
not be construed to render the City responsible
for the Grantee's planning or execution of the
Work or for detecting any errors, inconsistencies,
or omissions therein, except to the extent specif-
ically set forth herein.
(B) The Grantee shall be required to obtain, but shall
not be required to pay for,' City permits, fees and
licenses required solely for the I-Net. The
Grantee shall comply with all lawful requirements
applicable to the Work and shall give and main-
tain any and all noti~ ~ui~.~~.~plicable
I rtai' t th 'W'" ri< '1 " . ~ .
}ct\.(,J;'1.~G ,ll't,I?Q.(lPlo ~1"r~'1'';''f>J "~IJ" '-"JJ W rk
\'., me rantee snail SUpervise alid olrecttne 0 ,
--~-----
using the Grantee's skill and attention in accor-
dance with accepted construction industry prac-
tices, The Grantee shall be solely responsible for
and have control over design and construction
means, methods, techniques, sequenceS and
procedures and for coordinating all portions of
the Work under this Section, unless this Section
provides for other specific instructions concern-
ing these matters,
(D) The Grantee shall keep the work areas related to
the Work reasonably clean of debris generated
by the Grantee during performance of the Work.
Upon final completlQn of Work, the Grantee shall
clean its work areas and remove all waste gener-
ated by the Grantee therefrom.
(E) The Grantee shall take all reasonable steps to
provide access for the City to the Work when
requested, provided, however; that such access
shall not unreasonablyimpecle efforts of the
Grantee, its subcontractors or others engaged in
the Work,
(F) The indemnification, insurance, and other right-
of-way management provisions of the Ordinance
and this Franchise Agreement shaH apply to the
Work carried out by the Grantee under this
Section (as distinct from the performance of the
I-Net).
(15) I-Net Equipment. The purchase and mainte-
nance of alii-Net equipmef!t necessary to acti-
vate the fiber-optic network described in this
section 6(11) shall be the responsibility of the City
and other Authorized Users.
(i) Costs and Payments Not Franchise Fees: The parties
agree that any costs to the Grantee associated with
the provision of support for PEG access pursuant to
this Agreement, and any payments made to the City
pursuant to Section 6 of this Agreement, do not con-
stitute and are not part of a franchise fee, and faR
within one or more of the exceptions to 47 U.S.C, ~
542. The facilities, equipment and capacity provided
for PEG use shall be available at no charge to users,
including the City or the entity that manages the
channel.
7. FRANCH~ FEE
(a) Payment to City
(1) Each year, as compensation for use of Public
Rights-of-Way, the Grantee shall pay to the City
a Franchise fee of five percent of Gross
Revenues.
(2) For each whole or partial year that this
Agreement or any extension thereof is in effect,
the franchise fees due to the City shall be calcu-
lated on an annual basis corresponding to the
City's fiscal year. The Grantee shall make its
payment of franchise fees on the first day of the
fiscal year for which the fees are calculated and
due.
(3) The amount due on the first day of the fiscal year
shall be no less than ninety (90) percent of the
total franchise fees anticipated to be due for that
year, as determined by the City ninety (90) days
prior to the beginning of the applicable fiscal
year and communicated to the Grantee.
(4) No later than the twentieth day after the end of
each fiscal quarter, the Grantee shall report to
the City, in such detail as the City may require,
its gross revenues for the fiscal quarter immedi-
ately preceding, and shall remit therewith the
amount by which any fee due for that quarter
exceeds twenty-five percent (25%) of the
amount paid on the first day of that fiscal year.
In the event the amounts paid the City during the
fiscal year exceed the total amount due for that
fiscal year, the excess shall be refunded to the
Grantee within twenty (20) days after the filing of
its fourth quarter1y report and its giving the City
notice that a refund is due,
(ejt)~\jl "~W "m' '~'j1{~krtKJ,f i"tI..1 I;t~. ~belnAd and.
(>j'iJ'r'I?!1 :i~d .agrJlt~l.!f'3WJt'JU' -r'
'. a8lIV t me omce'or toe vlly manager or his
designee, no later than noon local time of the
date due, or, if those offices are closed on that
day, no later than noon local time on the next
day such offices are open for business.
(b) Final Payment: Upon the tennination, transfer, sale,
or revocation of this Agreement, the Grantee shall
immediately submit to the City Manager a financial
statement showing the Gross Revenues of the
Grantee for the time elapsed since the last quarter
for which the Grantee has paid in full to the City the .
required franchise fees, The Grantee shall pay to the
City all fees due not later than thirty (30) days follow-
ing such termination, but prior to the termination of
its performance bond.
(e) Supporting Inforination: Each Franchise fee payment
shall be submitted with supporting detail and a state-
ment certified by the Grantee's chief financial officer
or an independent certified public accountant, reflect-
ing the total amount of monthly Gross Revenues for
the payment period and a breakdown by major rev-
enue categories (such as basic service, cable pro-
gramming service, premium service, etc.). The City
shall have the right to require further reasonable sup-
porting information.
(d) Late Payments: In the event that any payment due
the City is not made on or before the applicable due
date and hour fixed in any section of this Agreement,
the payment shall be considered delinquent and in
violation of this Agreement, and shall be subject to
the remedies and procedures Outlined in Section 9.
In addition, the Grantee shall pay interest charges
computed from such due date, at an annual rate
equal to the commercial prime interest rate of the
City's primary depository bank during the period
such unpaid amount is owed. The interest shall be
treated asa cost incidental to enforcing the fran-
chise.
(e) Audit
(1) The City shall have the right to inspect and
copy records and the rights to audit and to
recompute any amounts determined to be
payable under this Agreement, whether the
recOrds are held by the Grantee, an Affiliate, or
any oth~r entity that collects or receives funds
related to the Grantee's operation in the City,
including, by way of illustration and not limita-
tion, any entity that sells advertising on the
Grantee's behalf,.
(2) The Grantee shall be responsible for making
available to the City for inspection and analysis
all records necessary to confinn the accurate
payment of Franchise fees, without regard to by
whom they are held. The Grantee shall maintain
such records for the term of its Franchise
Agreement, and any renewals or extensions
thereof.
(3) The City's audit expenses shall be bome by the
City unless the audit discloses an underpayment
in total of at least five percent, after taking into
account payments resulting from the quarterly
true-ups pursuant to section 7(a)(4), in which
case the costs of the audit shall be borne by the
Grantee as a cost incidental to the enforcement
of the Franchise. Any additional amounts due
to the City as a result of the audit shall be paid
within thirty (30) days following written notice to
the Grantee by the City of the underpayment,
which notice shall include a copy of the audit
report, If recomputation results in additional
revenue to be paid to the City, such amount
shall be subject to interest as specified in
Section 7(d). .
(4) The Grantee shall maintain its fiscal.and financial
records and have all relevant fiscal and financial
records maintained by others on itS1i)ehalf in
such a manner as to enable the City to deter-
mine Gross Revenues.
8. L1AB1UT1ES
(a) Indemnification by the Grantee. The Grantee shall
, 'Indemnify'theeitY. against any 'thifcf-oi...;J..~8etion
c ~. I . ,. fth. '~."_t...., I ~.t.it+ ..I<c....~ ~^~!_",-l, I'
. '8galOS e ';"'Y ...,smg 0 ~nfle I::Ir""Ltftl'S'fleg 1-
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CITY OF DUBUQUE CABLE FRANCHISE AGREEMENT . TELEGRAPH HERALD . SUNDAY,' JUNE 5, 2005
gence or intentional misconduct. The Grantee shall
not be required to indemnify the City for the negli-
gent or intentionally wrongful acts of the City, itsoffi-
cials, boards, commissions, agents or employees.
This provision shall not be construed to grant a right
of action to any lhird party.
(b) Indemnification by the City. The City shall indemnify
the Grantee against any third-party action against
the Grantee arising out of the City's negligence or
intentional misconduct. The City shall not be
required to indemnify the Grantee for the negligent
or intentionally wrongful acts of the Grantee, its offi-
cers, boards, agents or employees. This provision
shall not be construed to grant a right of action to
any third party.
(c) Indemnification Procedures. The City or Grantee, as
the case may be ("Indemnified Party"), shall promptly
notify the party against whom indemnification under
this Agreement is sought (the "Indemnifying Party"),
in writing, of any claim for indemnification, specifying
in reasonable detail the nature of the loss, and, if
known, the amount, or an estimate of the amount, of
the liability arising therefrom. The Indemnifying
Party may within ten (10) days after receiving such
notice provide the Indemnified Party with written
notice that it will assume defense of the matter. The
Indemnified Party may also participate in this
defense directly, at its own expense. The
Indemnifying Party shall not be liable for any settle-
ment of any such claim effected without its prior
written consent, which shall not be unreasonably
withheld; provided that if the Indemnifying Party
does not actually assume the defense of a claim
within thirty days after notice thereof, the
Indemnified Party may settle or defend such claim
without 1he consent of the Indemnifying Party. The
Indemnifying Party, if it assumes the defElnse of a
claim, shall not settle such claim without the prior
written consent of the Indemnified Party, which shall
not unreasonably be withheld.
(d) Respondent Superior. Any contractor or subcontrac-
tor performing for the Grantee in the service area of
this Franchise Agreement shall be deemed. to be an
agent of the Grantee, and the Grantee :;nall be
responsible and liable for the acts of the contractor
or subcontractor and its employees while so per-
forming for the Grantee.
9. PERFORMANCE GUARANTEES AND REMEDIES
(a) Performance Bond
(1) Grantee shall obtain and maintain during the
entire term of the Franchise, and any renewal or
extensions thereof, except as provided in
Section 9(b) or 9(a)(3) below, a performance
bond in the City's favor, in the amount of
$250,000, to ensure the Grantee's faithful per-
formance of its obligations and payment of any
sum due to the City pursuant to this Franchise
Agreement or Ordinance. The bond shall be
substantially in t~e form provided in Exhibit C.
(2) The performance bond shall be issued by a sure-
ty with an A-1 or better rating of insurance in
Best's Key Rating Guide, Property/Casualty
Edition; shall be subject to the approval of the
City, consistent with the parameters contained in
this section 9; and shall contain the following
endorsement:
"This bond may not be canceled, or allowed to
lapse, until sixty (60) days after receipt by the
City, by certified mail, return receipt requested,
of a written notice from the issuer of the bond of
intent to cancel or not to renew."
(3) Reduction of Bond. Upon written application by
the prantee, the City may, at its sole option, in
writing, permit the amount of the bond to be
reduced or waive the requirements for a per-
formance bond. Reductions granted or denied
upon application by the Grantee shall be without
prejudice to the Grantee's subsequent applica-
tions or to the City's right to require the full bond
1 'Iat~~y !i~ ,~~~' J1q~el'Elr\ '1Ct EJJ?Pli~tion
'I:Ji,M~.~ ~~ ~y tt}1l, ~".~i!l ~ft ~~), year
of any prior application.
(b) Letter of Credit
(1) In addition to the performance bond required
under Section 9(a), the Grantee may file and
maintain with the City an irrevocable letter of
credit from a financial institution licensed to do
business in Iowa in the amount of $25,000, to
serve the same purposes as set forth therein.
The form and content of the letter of credit shall
be approved by the City.
(2) The Grantee and its surety shall be jointly and
severally liable under the terms of the letter of
credit as specified in Section 9(a).
(3) The letter of credit shall provide for thirty (30)
days' prior written notice to the City of any inten-
tion on the part of the Grantee to cancel, fail to
renew, or otherwise materially alter its terms.
(4) The letter of credit shall be released.only upon
expiration of the Franchise or upon the replace-
ment of the letter of credit within the time speci-
fied herein.
(c) Rights Cumulative: The rights reserved to the City
herein are in addition to all other rights of the City,
whether reserved herein or authorized by applicable
law, and no action, proceeding, or exercise of a right
with respect to such performance bond or letter of
credit will affect any other right the City may have,
provided that 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 tl:)e same violation. Neither the filing
of a letter of .credit with the City, nor the receipt of
any damages recovered by the City thereunder, shall
be construed to excuse faithful performance by the
Gr~ntee or limit the liability of the Grantee under the
terms of its Franchise for damages, either to the full
. amount of the letter of credit or otherwise.
(d) Procedures for Remedying Violations
(1) Notice of VIOlation. To apply remedies for any
failure to comply with this Franchise Agreement
or the Ordinance, the City shall notify the
Grantee in writing of the exact nature of such
alleged noncompliance.
(2) The Grantee's Right to Cure or Respond. The
Grantee shall have the period of time listed in
section 9(d)(3): (A) to respond to the City, con-
testing the assertion of such noncompliance; or
(B) to cure such default; or (C) in the event that,
by the nature of such default, it cannot be cured
within the cure period specified in section 9(d)(3),
to initiate reasonable steps to remedy such
default and notify the City of the steps being
taken and the projected date that they will be
completed.
(3) Cure Periods. Grantee shall have the following
period of time to implement the measures listed
in section 9(d)(2), above:
(A) For any breach of this Franchise Agreement
that poses an actual imminent threat of seri-
ous personal injury or property damage: no
cure period.
(B) For failure to timely make franchise fee pay-
ments required by section 7: Two business
days from the date such payment was due.
(C) For any other breach of this Franchise
Agreement or Ordinance not listed above:
fifteen (15) calendar days after Grantee's
receipt of written. notice pursuant to Section
9(c)(2), unless the City shows that a different
time period is justifiable.
(4) Initial VIOlation. The City shall not impose penalties
or liquidated damages for the Grantee's first viola-
tion, during the period duril'!g which this Franchise
Agreement is in effect, of any of the following provi-
sions of this Agreement or the Cable Ordinance,
although the Grantee shall nonetheless be required
to comply with such provisions:
(A) Agreement section 4(a) Oine extension);
(8) Agreement sections 5(a)-5(h), 50) (system
, )" ()\,t~~9~5t~1ff1emt'~~~fJ1n~\
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9
6(h)(11)- 6(h)(14) (PEG requirements, except
for certain general I-Net requirements);
(D) Agreement sections 7(a), 7(c)-7(e) (franchise
fees, except for a one-time final payment);
(E) Agreement section 8 (liabilities);
(F) Agreement sections 9(a)- 9(b) (performance
bond and letter of credit);
(G) Ordinance, Title I sections 9-14 (construction
and related provisions)
(H) Ordinance, Title I sections 17-18 (audits,
reports and records)
(I) Ordinance, Title I, section 19 (bond or letter
of credit);
(J) Ordinance, Title I, section 20 (insurance);
(I<) Ordinance, Title II, section 3 (cable construc-
tion);
(l) Ordinance, Title II, section 6 (consumer pro-
tection);
(M) Ordinance, Title II, section 8 (franchise fee);
(N) Ordinance, Title II, section 9 (tests and
inspections);
(0) Ordinance, Title II, section 10 (cable insur-
ance);
(P) Ordinance, Title II, section 11 (cable reports
and records).
(5) City Council Review At Public Meeting. In the
event that the Grantee fails to respond to the notice
described in section9(d)(1) pursuant to the proce-
dures set forth in section 9(d)(2), or in the event that
the alleged default is not remedied within the period
specified in section 9(d)(3) above, then the City, if it
intends to continue its investigation into the alleged
default, shall shall provide the Grantee with a mean-
ingful opportunity to be heard at a public meeting of
the City Council, which can be a regularly scheduled
Council meeting. The City shall provide the Grantee
at least ten business (10) days' prior written notice of
such meeting, which specifies the time, place and
purpose of such meeting and the consequence that
the City seeks to impose, and provides the Grantee a
meaningful opportunity to be heard.
(6) Enforcement. Subject to applicable federal and
state law, in the event the City, after the meeting
set forth in section 9(d)(5), determines that the
Grantee is in material violation of any provision
of the Franchise, the City may invoke remedies
as described in section 9(t), subject to the provi-
sions of section 9(d)(4).
(e) Security Fund Procedures
(1) The performance bond specified under Section
9(a), and the letter of credit specified under
Section 9(b), shall be referred to jointly or sever-
ally as the Security Fund.
(2) The following procedures shall apply to drawing
on the Security Fund:
(A) If within five (5) business days after the City
has issued a written final notice of its deter-
mination after concluding the procedures set
forth in section 9(d), the Grantee fails to
make timely payment to the City of any
amount due, the City may withdraw the
amount thereof from the Security Fund.
(B) Within three (3) days of a withdrawal from
the Security Fund, the City shall mail, by cer-
tified mail, retum receipt requested, written
notification of the amount, date, and pur-
pose of such withdrawal to the Grantee.
(C) If at the time of a withdrawal from the
Security Fund by the City, the amounts avail-
able are insufficient to provide the total pay-
ment towards which the withdrawal is direct-
ed, the balance of such payment shall con-
tinue as the obligation of the Grantee to the
City lJntil it is paid.
(D) No later than thirty (30) days after'mailing of
notification to the Grantee by certified mail,
return receipt requested, of a withdrawal
under the Security Fund, the Grantee shall
restore the Security Fund to the total amount
'Specified.' .. t . . ,
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10
CITY OF DUBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
LEGAL NOTICE
conditions other than those stipulating forfei-
ture of the Security Fund, the balance then
remaining in the Security Fund shall be
returned to the Grantee within ninety (90)
days of such termination, provided that there
is then no outstanding default on the part of
the Grantee.
(f) Remedies: The reniedies contained herein, except
for the limitations specified in section 9(f)(5), are in
addition to any other remedies available at law or
equity, and the City may, to the extent consistent
with federal and state remedy law, apply anyone or
a combination of the following remedies in the event
the Grantee violates the Cable Ordinance, this
Franchise Agreement, or applicable state or federal
law:
(1) Apply any remedy provided pursuant to this
Agreement.
(2) Revoke the Franchise or shorten the term of this
Agreement pursuant to the procedures specified
in this Agreement.
(3) Impose penalties available under the Cable
Ordinance or other applicable state and local
laws for violation of City ordinances.
(4) In addition to or instead of any other remedy,
seek legal or equitable relief from any court of
competent jurisdiction.
(5) Any action, proceeding or exercise of a right by
the City under this Section does not constitute
an election of remedies or a waiver of any other
right the City may have, including the right to
seek specific performance of a franchise obliga-
tion, except that (A) the City's election of liqui-
dated damages shall take the place of any right
to obtain actual damages over and above the
payment of any amounts otherwise due, and (8)
to the extent that penalties are applied to a
Grantee under the Cable Ordinance, a Grantee
shall not be subject to liquidated damages
payable to the City for the same violation.
(g) Liquidated Damages: Because the Grantee's failure
to comply with certain provisions of this Agreement
or the Ordlnance will result in injury to the City, and
because it wiN be difficult to estimate the extent of
such injury, the City and the Grantee agree to the
following liquidated damages for the following viola-
tions of this Agreement and the Ordinance, which
represent both parties' best estimate of the damages
resulting from'the specified violation, To maintain
that estimate, the parties agree that the liquidated
damage amounts are in 2005 dollars and shall be
increased each year by the increase in the Inflation
Index. Such damages shall be assessed from the
date on which the City gives written notice to the
Grantee pursuant to section 9(d)(1), but shall not be
applied except according to the procedures speci-
fied in section 9(d).
(1) For failure to substantially complete construction
of either (A) the System Upgrade pursuant to
section 5(c), or (8) the I-Net pursuant to section
6(h), in accordance with this Agreement:
$500/day for each violation for each day the vio-
lation continues;
(2) For failure to comply with requirements for pub-
lic, educational and governmental use of the
System: $200/day for each violation for each
day the violation continues, in addition to any
monetary payment due under this Agreement or
the Cable Ordinance;
(3) For failure to supply information, reports, or fil-
ings lawfully required under this Agreement, the
Cable Ordinance or applicable law: $200/day for
each violation for each day the violation contin-
ues;
(4) For violation of customer service standards as set
forth in the Cable Ordinance: up to $200 per vio-
lation, depending On the nature, scope, and
severity of the violation, as reasonably determined
by the City;
(5) For failure, unless such failure is beyond the
Grantee's control, of the system to perform in
the event of a public emergency: $250 per
occurrence;
(6) For failure to render any payment due to the
City: $100 per day, in addition to the original
amounts due;
(7) For failure to file, obtain or maintain any required
Security Fund in a timely fashion: $50 per day;
(8) For failure to restore damaged property: $50 per
day, in addition to the cost of the restoration as
required in this Agreement or the Ordinance;
(9) For violation of technical standards established
by the FCC: $100 per day.
(10) For any given provision of this Agreement or the
Ordinance, if the City does not impose liquidated
damages or penalties for that provision at any
time in the first four years after the Effective Date
(not counting any instances in which the City
imposes such liquidated damages or penalties
and such imposition is overturned by a tribunal
of competent jurisdiction), then the liquidated
damage amounts specified in sections 9(g)(1)
through 9(g)(9) above shall be reduced, for the
remainder of the Franchise term, to half the
amounts specified above.
(h) Shortening, Revocation, or Termination of Franchise
(1) Upon completion of the term of this Franchise
Agreement, if a new, extended, or renewed
Franchise is not granted to the Grantee by the
City, the Grantee's right to occupy the Public
. Rights-of-Way shall terminate, subject to appli-
cable federal law. .
(2) Subsequent to completion of the procedures set
forth in section 9(d), if the City haS given notice
pursuant to section 9(d)(5) that it is seeking revo-
cation of the Franchise Agreement, the City shall
have the right to revoke the Franchise (or, alter-
natively, at the City's discretion, pursuant to the
same procedureS, to shorten the remaining term
of the Franchise Agreement to a term not less
than thirty-one (31) months from the date of the
action shortening the Franchise term), for the
Grantee's failure to construct, operate, or main-
tain the Cable System as required by this
Agreement; for defrauding or attempting to
defraud the City or Subscribers; or for any other
material breach of this Agreement or material
violation of the Cable Ordinance.
(3) If the City revokes the Franchise, or if for any
other reason the Grantee abandons, terminates,
or fails to operate or maintain service to its
Subscribers, the following procedures and rights
are effective:
(A) The City may require the former Grantee to
remove its facilities and equipment at the
former Grantee's expense and restore affect-
ed sites as required in the Cable Ordinance,
or permit the former Grantee to abandon
such facilities in place. If the former Grantee
fails to do so within a reasonable period of
time, the City may have the removal done at
the former Grantee's and/or surety's
expense.
(8) The City may require the former Grantee to
continue operating the Cable System,
including the I-Net, as specified in Section
4(b).
(Clln the event of revocation, the City, by reso-
lution, may acquire ownership of the Cable
System at an equitable price in accordance
with federal law.
(D) If a Cable System is abandoned by the
Grantee, the ownership of all portions of the
Cable System in Public Rights-of-Way shall .
revert to the City and the City may sell,
assign, or Transfer all or part of the assets of
the System.
10. MISCFII ANEOUS PROVISIONS
(a) Binding Acceptance: This Agreement shall bind and
benefit the parties hereto and their respective heirs,
beneficiaries, administrators, executors, receivers,
trustees, and the promises and obligations herein
\.:: \, 'sh~So~the'e~i6nililfttt1t!reOf.' J-' :;.-
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(b) Severability
(1) If any provision of this Agreement or any applica-
tion thereof to any person or circumstance is
held invalid, the invalidity does not affect other
provisions or applications of this Agreement
which can be given effect without the invalid pro-
vision or application, except that the invalidity
may invoke the provision in Section 1 O(b)(1)
herein for loss of benefit, and to this end and
extent the provisions of this Agreement are sev-
erable.
(2) If any provision of this Agreement becomes
invalid and results in a significant loss of benefit
to the City or Grantee or both, as determined by
either party, then the party claiming the loss may
demand renegotiation.
(3) Such a demand for renegotiation must be made
and delivered to the other party within one (1)
year after the date both the City and Grantee
have received notice of the invalidity. Within fif-
teen (15) days of receipt of such a demand, both
the City and Grantee must meet in Dubuque,
Iowa and begin the renegotiations, The renegoti-
ations shall be limited to reforming the franchise
and restoring the party suffering the loss to its
former position with equivalent benefit.
(4) The reformed franchise shall be effective from
the date the debilitating invalidity took place,
even if such reformation is retroactive and
involves a settlernent for loss of past services,
(5) The purpose of this Section is to maintain the
continuity of the contract in conformity with the
expressed intentions of the parties when the
contract was formed and, where applicable, as
later amended.
(c) Grantee Bears Its Own Costs: Unless ot.herwise
expressly provided in this Agreement, all acts that
the Grantee is required to perform must be per-
formed at the Grantee's own expense.
(d) Force Majeure: The Grantee shall not be deemed in
default of provisions of this Agreement or the Cable
Ordinance where performance was rendered impos-
sible by war or riots, labor strikes or civil distur-
bances, floods, inability to obtain necessary con-
sents and/or permits, or other causes beyond the
Grantee's control, and the Franchise shall not be
revoked or the Grantee penalized for such noncom-
pliance, provided that the Grantee takes immediate
and diligent steps to bring itself back into compli-
ance and to comply as soon as possible under the
circumstances with the Franchise.
(e) Governing Law: This Franchise Agreement shall be
governed in all respects by the law of the State of
Iowa.
(f) Notices: Unless otherwise expressly stated herein,
notices required under this Franchise Agreement
shall be mailed first class, postage prepaid, to the
addressees below. Each party may change its
designee by providing written notice to the other
party, but each party may on!y designate one entity
to receive notice.
(1) Notices to the Grantee shall be mailed to:
Vice President, Legal and Regulatory Affairs
Mediacom Communications Corporation
100 Crystal Run Road
Middletown, NY 10941
with a copy to:
Region Vice President
Mediacom Communications Corporation
3900 26th Avenue
Moline, IL 61265
(2) Notices to the City shall be mailed to:
City Manager
City of Dubuque
City Hall
50 West 13th Street
Dubuque, Iowa 52001
with a copy to:
Corporation Counsel
City of Dubuque
. I ~ etty Hall~ -! ~ ~.. . , . "\ . .. ... ~ , · " - .. ... ,.
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...................""~"',_..~
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CITY OF DuBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5,2005
,- :" ,
Dubuque, Iowa 52001
(3) The Grantee shall at all times keep the City
advised as to which individual(s) are authorized
to act on behalf of the Grantee and whose acts
will be considered to bind the Grantee.
(g) Time of the Essence: Whenever this Agreement sets
forth any time for any action to be performed by or
on behalf of the Grantee, such time shall be deemed
to be of the essence, and any failure of the Grantee
to perform within the time allotted, unless otherwise
agreed to by the City or provided for herein, shall be
sufficient grounds for the City to revoke the franchise
pursuant to the procedures herein.
(h) Captions and References
(1) The captions and headings of sections through-
out this Agreement are intended solely to facili-
tate reading and reference to the sections and
provisions of this Agreement. Such captions
shall not affect the meaning or interpretation of
this Agreement.
(2) When any provision 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 Agreement, 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).
(j) 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 revi-
sion 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 interpret-
ing this Agreement. Each party hereto has carefully
and completely read all of the terms and provisions
of this Agreement, and acknowledges that, to the
best of its knowledge, each provision is lawful and
enforceable. If the Grantee believes that tne terms
of the franchise or any City law or regulation con-
flicts with any state or federal law or regulation, the
Grantee shall notify tl1e City immediately upon learn-
ing of the conflict.
Agreed to this 2nd day of May, 2005.
City of Dubuque, Iowa,
A municipal corporation of Iowa
N lc,AlL
By: Michael C. Van Milligen, City Manager
Attest:
~~
Jeanne F. Schneider, CMC
City Clerk
MCC IOWA, LLC,
A Delaware Umited Uability Company
Ci>~ JlLL-
By: Bruce Gluckman,
Vice-President of Legal and Regulatory
Affairs
EXHIBIT A
ACCEPTANCE OF FRANCHISE BY THE.GRANTEE
. MCC IOWA, LLC ("Grallt~") hereby,aC~epts the fran-
chise 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
offered by Ordinance No. 28-05 of City of Dubuque, Iowa
("City"), as amended ("Granting Ordinance"). By this
acceptance, Grantee agrees that, as set forth in the
Franchise Agreement, it shall be bound by the terms and
conditions of the Franchise Agreement, any amendments
thereto, the City of Dubuque Cable Right-of-Way
Ordinance, and other applicable law (collectively, the
"Franchise Documents").
The Grantee declares that it has carefully read all of the
terms and conditions of the Franchise Documents, and
accepts and agrees to abide by same.
Upon the Franchise becoming effective, the Grantee
shall be immediately bound to maintain and operate a
Cable System under the terms, conditions and limitations
set forth in the Franchise Documents and other applicable
law, as of the time and date it files this written acceptance
with the City.
AGREED TO THIS 14TH DAY OF APRIL, 2005.
MCC IOWA, LLC
Ci>~ JlLL-
By: Bruce Gluckman,
Vice-President of Legal and Regulatory Affairs
EXHIBIT B
I-NET SITE UST
SEE ATTACHED EXHIBIT B, PAGE 24
EXtilBIT C
FORM OF PERFORMANCE BOND
Bond No:
KNOW ALL MEN THESE PRESENTS,
THAT , as Principal and
having its executive office
as Surety, are held and firmly bound unto
, hereinafter referred to as
Obligee, in the penal sum of
DOLLARS ($ ) for the payment of which, well and
truly to be made, we bind ourselves, our heirs, executors,
administrators, successors and assigns, jointly and sever-
ally, firmly by these presents the liability of the Surety
being limited to said penal sum regardless of the number
of years this bond remains in force or is renewed, of the
number of premiums that shall be payable or paid, the
number of Subscribers to the system and/or legal fees
which may be required and incurred.
WHEREAS, the Obligee has granted a franchise to
Principal to use the public streets and places within its
Municipality to transmit and distribute electrical impulse
through an open Iinecoxial antenna system for television
receivers located within said
NOW THEREFORE, the condition of this obligation is such,
that if the above bound Principal shall faithfully perform,
well and truly observe and fulfill the terms and conditions
of the franchise, than this obligation shall be null and void;
otherwise it shall remain in full force and effect until can-
celled.
PROVIDED, HOWEVER, it shall be a condition precedent
to any right of recovery hereunder, that in the event of any
formal determination of default by the City Council on the
part of the Principal, a written statement of the particular
facts showing the date and nature of such default shall be
delivered to the Surety by registered mail at its Home
Office at
;"" .~
11
tified mail. Such termination shall not affect any liability
incurred or accrued under this Bond prior to the effective
date of such termination or cancellation.
IN WITNESS WHEREOF, the said Principal and Surety
have signed and sealed this instrument this
day of
WITNESS
NAME
Approved and Accepted By:
Obligee
Title
Date
PRINCIPAL
BY:
TITLE
SURETY
BY:
AND PROVIDED FURTHER that no action, suit or proceed-
ing shall be had or maintained against the Surety on this
instrument unless same by brought or instituted and
process served upon the surety within twenty-four (24)
months after an act of breach or cancellation of this bond
or termination of said franchise, whichever occurs first.
-'-.1"'; ~ I ,1."' 11;'~l\':'1"", ~." '",. '1"_"......, '=Ii" . (,.C" ')t",C)~...:.'l.t ;"t ri"'1.v...r";......(~ ~,: ';'~"~(~.i~~ c;r--!.r rrj ,,"-;-'.;"";.") ;;..','..:.'....."_~,,-..
This Boriq.~~~~~~..erdf~~~~~rety by l."l~ I),'.::; "Cr3g'-"f"l0."ir.t"1 <; t,' J'i~"'.J c),1~
giving thirty (30) days prior notice in writing from Surety to
Principal and said Obligee, such notice to be given by cer-
.....~~,~:'~~="0'~.::::::--~-:--_.. .
June 5, 2005
CITY OF DUBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
LEGAL NOTICE
12
Page
TITLE I: GENERAL PROVISIONS .............................. 12
1. Legislative Findings ............................................ 12
2. Purposes ........................................................ 12
3. Rules of Construction .......................................... 12
4. Definitions ........................................................ 12
5. Authority ........................................................ 12
6. Reservation of Rights; Police Power .................. 12
7. Title ........................................................12
8. Authorization Required........................................ 13
9. Construction Standards ...................................... 13
10. Placement of Facilities ...................................... 13
11. Relocation of Facilities ...................................... 13
12. Restoration ........................................................ 13
13. Work Permits...................................................... 14
14. Business License............:................................... 14
15. Reimbursement of Costs' ..................................14
16. Administration ................(................................... 14
17. Audits ........................................................14
18. Reports and Records. ........................................14
19. Bond or letter of Credit .................................... 14
20.lnsurance ....................:...................................14
21. Enforcement ...................................................... 14
22. Indemnification .................................................. 15
23. Severability ........................................................ 15
TITLE II: CABLE COMMUNICATIONS ........................ 15
1. General Provisions ............................................ 15
2. Grant of Franchise ............................................ 16
3. Construction Standards .....................................18
4. Use of Public Property ......................................18
5. Interference with Public Projects ...................... 18
6. Consumer Protection ........................................ 18
7. Rate Regulation.................................................. 20
8. Franchise Fee .................................................... 20
9. System Tests and Inspections .......................... 21
1 a.lnsurance ........................................................ 21
11. Reports and Records - Cable............................ 21
12. Performance Guarantees And Penalties............ 22
13. Transfers ........................................................ 22
14. Rights Of Individuals Protected ........................23
15. Miscellaneous Provisions .................................. 23
TITLE III: OPEN VIDEO SYSTEMS .............................. 23
1. Applicability of Ordinance .................................. 23
2. Application for Open Video System Authorization.... 23
3. Fee In Lieu of Franchise Fee.............................. 23
4. Public, Educational, and Governmental Access
Obligations. ........................................................ 24
5. Right-of-Way Usage .......................................... 24
OFFICIAL PUBLICATION
ORDINANCE NO. 29-05
AN ORDINANCE AMENDING THE CODE OF ORDI-
NANCES OF THE CITY Of DUBUQUE, IOWA, BY
ADOPTING A NEW ORDINANCE TO REGULATE THE
CONDITIONS REQUIRED AND MANNER OF USE Of
THE PUBLIC RIGHTS-OF-WAY.
Be it ordained by the Council of City of Dubuque, Iowa
as follows:
Section 1.
The Code of Ordinances of the City of Dubuque, Iowa is
hereby amended by adding the following:
CABLE RIGHT-Of-WAY ORDINANCE
T1TLE I: GENERAL PROVISIONS
1. LeqisIative F'sndInas
The City Council hereby finds and declares:
(1) that the public rights-of-way within the City can
be partially occupied by public utilities and other
service entities for facilities used in the delivery,
conveyance, and transmission of services ren-
dered for profit, to the enhancement of the
health, welfare, and general economic well-being
of the City and its citizens;
(2) that the publlG rights..of~way ~in, tJ:Ie CitY~, -", -
physically 'IlmifedSb, '1J~\'.prOper'managefll'leAt. ; -
by the Cityli$ :necessary 'fo' maximize ,thE! effi~' .
4. Definitions
For the purposes of this Ordinance, the following terms,
phrases, words, and abbreviations shall have the mean-
ings given herein, unless otherwise expressly stated.
Unless otherwise expressly stated, words not defined
herein shall be given the meaning set forth in TItle 47 of
the United States Code, as amended, and, if not defined
therein, their common and ordinary meaning.
(1) AftiIisIm. when used in relation to any person,
means another person who de facto or de jure
owns or controls, is owned or controlled by, or is
under common ownership or control with, such
person.
(2) ~. City of Ot.Ibuque, Iowa, and any agency,
department, or agent theRlOf.
(3) City Manaoermeans the~n appointed pur-
suant to City of Dubuque Code of Ordinances ~
2-105.
(4) Comnunir".Atinm: FaciIitv or CorrInu1io ::atil:.1S
.swtam means facilities for the provision of convnu--
nications services, as that term is defined herein.
(5) CommunicaU9ns Services means telecommuni-,
cations services, interactive computer services,
and any other services involving the transmission
of information by electronic or optical signals,
except that it shall not include cable service as
thattermi5used'irl~ GabIe'G'GmmuAlGaoons' -,' 7. Im.
'PoIic'y'Actbf 1984;,as'~.-f'c',""; ': f},' Thfs Ordinance is known and may be cited as the .
(6) ,~meahMf:ie- priheifi8~'QcWel1il'hSt1taIOOcly" . ,''1)ubuque Cable Right-of-Way OrtfU'lanCe."
ciency and to minimize the costs to the taxpay-
ers of the foregoing uses, to prevent foreclo-
sure of future uses through premature exhaus-
tion of available right-of-way capacity, and to
minimize the inconvenience to the public from
such facilities' construction, emplacement,
relocation, and maintenance in the rights-of-
way;
(3) that the use of the public rights-of-way by multi-
ple users renders more pressing the City's right-
of-way management responsibilities;
(4) that the PlJblic rights-of-way within the City are
valuable public property acquired and main-
tained by the state and the City at great expense
to the taxpayers; and
(5) that the right to occupy portions of such pUblic
rights-of-way for limited times for the business of
providing utility and cable services is a valuable
economic asset.
2. Pumoaea
The City Council adopts this ordinance to better-
(1) manage a limited resource to the Iong.,.term ben-
efit of the public;
(2) recover the costs of managing the public rights-
of-way;
(3) minimize inconvenience to the public occasioned
by the ernplacement and maintenance of facili-
ties in the public rights-of-way;
(4) prevent premature exhaustion of capacity in the
public rights-of-way to accommodate communi-
cations and other services; and
(5) promote competition in the provision of commu-
nications service in the City and ensure that citi-
zens have a wide variety of services available to
them by establishing clear and consistent rules
by which providers may occupy the public
rights-of-way.
3. Rules of Construction
When not inconsistent with the context, words used in
the present tense include the future tense; words in the
plural number include the singular number, and words in
the singular number include the plural number; and the
masculine gender includes the feminine gender.
The words "shall" and "will" are mandatory, and "may"
is permissive.
Unless otherwise specified, references to laws, ordi-
nances or regulations shall be interpreted broadly to cover
government actions, however nominated, and include
laws, ordinances and regulations now in force or here-
inafter enacted or amended.
of the City of Dubuque, Iowa, its officers, or a
representative person or entity as may be desig-
nated to act on its behalf.
(7) Facilitv or Facilities means any cable system
and/or any tangible asset in the publiC rights-of-
way used to provide cable service.
(8) Federal Communications Commission (or FCC)
means the Federal Communications Commission
or any successor.
(9) Franchise means an authorization granted by the
City to a person to construct, maintain, or
emplace facilities generally upon, across,
beneath, and over the public rights-of-way in the
City, subject to the terms and conditions speci-
fied in a Franchise Agreement.
(10) Franchise Aareement means the contract
entered into between the City and a Grantee that
sets forth the terms and conditions under which
the franchise may be exercised..
(11)~ m8ansa perSon that has been granted a
cable franchise by the City or is an OVS operator
in the City.
(12)Owner or ~ of a facility means any person
which has a possessory interest in such facility
or which controls or is responsible for, through
any arrangement, the management and opera-
tion of such facility.
(13)~ means any individual, corporation, part-
nership, association, joint stock company, trust,
governmental entity, or any other legal entity, but
not the City.
(14)Public Riahts-of-Way means the surface and
space above, on, and below any public highway,
avenue, street, lane, alley, boulevard, concourse,
driveway, bridge, tunnel, park, parkway, water-
way, dock, bulkhead, wharf, pier, public ease-
ment, or right-of-way within the City in which the
City now or hereafter holds any property interest
which, consistent with the purposes for which it
was dedicated or otherwise acquired, may be
used for the purpose of constructing, operating,
and maintaining a facility.
(15)Telecommunications has the meaning ascribed
to it in 47 U.S.C. ~ 153(43).
(16)Telecommunications Service has the meaning
ascribed to it in 47 U.S.C. ~ 153(46).
(17) Work permit means an authorization issued by
the City to enter upon the publiC rights-of-way at
specified times and places to erect, construct,
emplace, or otherwise work on facilities.
5. Authoritv
This ordinance is adopted pursuant to the City's powers,
including but not limited to those under Section 38A of
the Iowa Constitution and Section 364.2 of the Iowa
Code.
6. Reservation of Riahts: Police Power
All rights and privUeges granted in a franchise agreement
are subject to the police powers of the City and its rights
under applicable laws and regulations to exercise its gov-
ernmental powers to their full extent and to regulate a
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 8ppli~
cable zoning, building, permitting and safety ordinances
and regulations, the right to adopt and enfM:e ordinances
and regulations relating to equal employment Opportuni-
ties, and the right to adopt and enforoe ordinances and
regulations containing right-of-way, telecommunicationS,
utility and cable television consumer protection and setif. ,
ice standards and rate regulation provisions, except t6JN'
extent that an exercise of such powers would impair the
obligations of a grantee's franchise agreement as prohibit-
ed by Article I, Section 10, clause 1 of the U.S.
Constitution.
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CITY OF DUBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
8. Authorization Reauired
(1) No person shall install, erect, hang, lay, bury.
draw, emplace,construct, reconstruct, maintain,
or operate any facility upon, across, beneath, or
over any public right-of-way in the City or other
City property without first obtaining from the City
the necessary authorization (e.g., in the case of a
cable operator, a franChise) required under local,
state or federal law.
(2) An owner or operator of facilities may be
required to hold different authorizations for its
use of the public rights-of-way to provide differ-
ent services. For example, and without limita-
tion, the owner or operator of facilities that pro-
vides both cable service and telephone service
must obtain both a cable franchise and any
authorization needed to, provide telephony.
approval, the City shall infoon the Grantee Whether
the reports and other information described by Title
I, section 18(3)(A) shall be required with respect to
the approved construction.
(8) Coordination of Construction With Third Parties.
Developers or other parties planning the con-
struction or opening of streets in the City shall
provide reasonable notice to the City and to the
owners or operators of facilities subject to this
Ordinance so that joint trenching and joint
emplacement of facilities may be conducted
wherever practicable. Such owners and opera-
tors shall similarly provide notice to each other
and to any relevant developers, for the same
purpose. The City shall maintain a list of owners
and operators of facilities subject to this
Ordinance for reference by other parties.
(9) Corltractors and Subcontractors. Any contractor
or subcontractor used for work or construction,
installation, operation, maintenance, or repair of
facilities in the public rights-of-way must be prop-
erly licensed and insured under laws of the State
and all applicable local ordinances. Each con-
tractor or subcontractor shall have the same obli-
gations with respect to its work as an owner or
operator of the facility would have if the work
were performed by the owner operator. hi owner
or operator shall be responsible for all activities
carried out by its contractors, subcontractors and
employees at the owner or operator's request.
(10) Publicizing Proposed Construction Work. The
owner or operator of facilities in the public rights-
of-way shall notify the publiC prior to commencing
any construction, other than emergency repair
work, that will significantly disturb or disrupt pub-
lic property or have the potential to present a dan-
ger or affect the safety oflhe pUblic generally.
Written notice of such construction wort<: shall be
delivered to the City at least one week prior to
commencement of that work. Notice shall be
provided to those persons most likely to be affect-
ed by the wort<: in at least two of the following
ways: by telephone, in person, by mail, by distri-
bution of flyers to residences. by publication in
local newspapers, or in any other manner reason-
ably calculated to provide adequate notice. If an
owner or operator must enter a building or other
structure, it must schedule an appointment at the
reasonable convenience of the owner or resident.
9. Construction Standanis. ,
(1) Construction, operation, maintenance. and repair
of facilities shall be. in accordance with all appli-
cable law and regulation, and with sound indus-
try practice. All safety practices required by law
shall be used during construction,maintenance,
and repair of facilities.
(2) No Grantee or holder of any work permit for any
facility shall dig, trench, or otherwise excavate in
the public rights-of-way without complying with
the provisions of the Iowa One-Call System,
Iowa Code ~ 480.3 et. seq., or its successor.
(3) An owner or operator shall at all times employ at
least ordinary care and shall install and maintain
in use commonly accepted methods and devices
preventing failures and accidents that are likely to
cause damage, injury, or nuisance to the public.
(4) In the event of a conflict among codes and stan-
dards, 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).
(5) A Grantee shall have the authority to trim trees
that overhang public rights-of-way of the city so
as to prevent the branches of such trees from
coming in contact with the facilities of the
Grantee, in a manner subject to the approval of
the City Manager or designee. Notwithstanding
that grant of authority, if the Grantee performs
the work, it shall be fully liable for any damages
caused thereby,. and shall be responsible for
replacing damaged trees and shrubs. Grantee 10. Placement of Facilities.
shall be responsible for notifying abutting prop- All facilities shall be installed and located to minimize
erty owners prior to trimming trees and shall interference with the rights and convenience of other
obtain permission from the City Manager or the property owners.
City Manager's designee. At the option of the (1) An owner or operator of a facility shall not place
City, such trimming may be done by the City. facilities, equipment, or fixtures where they will
(6) ConstructiQn Schedule. Every owner or operator interfere with any other facilities, or obstruct or
shall, at least 45 days prior to commencing sig- hinder in any manner the various utilities serving
nificant construction activity (including a signifi- the residents of the City or their use of any pub-
cant rebuild, upgrade, .or repair to existing facili- lic rights-of-way.
ties) upon, across, beneath, or over any public (2) The City may reasonably direct the specific
right-of-way in the.CIty or other Gity property, placement of facilities to ensure that users of the
provide to the City in writing the date on which public rights-of-way do not interfere with each
the owner or operator ~ticipates it.will begin other and that the public rights-of-way are used
construction and the approximate length of time safely and efficiently.
required for such construction. (4) Every Grantee that ceases operating or maintain-
(7) Coordination of Construction With the City. Prior to ing any facility shall, upon written request of the
the erection, construction, upgrade, or rebuild of City within two years. or the cessation or mainte-
any facilities in the public right-of-way, the owner or nance of such facility, promptly remove it.
operator of such facilities shall first submit to the Should the Grantee neglect, -refuse, 01' fail to
City for written approval, which.shaII not be unrea- remove such facility, the City ri1ay remove the
~ denied or delayed, a concise description of facility at the expense of the Grantee. The obli-
the ~ proposed to~ erected or installed, gation to remove shall survive the termination of
inQ\Jding engineering drawings. if required by the the franchise or license for a.period of two years
City, together with maps and plans indicating the and shall be bonded.
proposed location of all such faclfities. The owner (5) No owner or operator of a facility shall erect new
or operator shall provide the best infom lation it has aerial plant, other than to repair existing plant, in or
in such reasonable format as may be specified by on a public right-of-way in wtlich both electric and
the City for the City's planning function. No such telephone service providers have placed their lines
. ,\, ,.' f c~orconstnJctiorbshail~QOfl.9ElI~by 5,l > ~ >.' i ,,~nd,orin~~whiehtheCityhasby
) i" ", "~PersonuntilapprovaJ,~has~.,,,"; '." ordi~~~~J?Iarrt~lilEtt;Olli.'." ;, \
\_'~~'< .~~fromtheCiW* ~,,~~~.~,~ ,. .~fdgr~~~pfanttt:(~(fl8i~f"~
13
(6) If at any time the City determines that existing
wires, cables or other like facilities of public utili-
ties anywhere in the City shall be changed from
an overhead to underground installation, the
owner or operator of a facility shall at the owner
or operator's sole expense convert its system in
that location to an underground installation.
(7) A Grantee shall use, with the owner's permis-
sion, existing poles, conduits and other facilities
whenever feasible. A Grantee may not erect
poles, conduits. or other facilities in pUblic
rights-of-way without the express permission of .
the City. Copies of agreements for use of con-
duits or other facilities shall be filed with the City
upon City request.
(8) To the extent practicable, above-ground equip-
ment placed on private property shall be placed
at the location requested by the property owner.
An owner or operator shall provide affected
homeowners with at least ten days' advance writ-
ten notice of its plans to install such equipment,
and shall make reasonable efforts to confer with
such homeowners before any work is done.
(9) Whenever above-ground equipment is placecl on
private property, the Grantee shall provide land-
scaping camouflage reasonably acceptable to
the property owner, at the Grantee's expense.
11. Relocation of Facilities.
(1) The owner or operator of a facility on or within
the public rights-of-way shall, at its own expense,
upon written notice from the City reasonably in
advance, promptly relocate any facility located on
or within the public rights-of-way as the City may
deem necessary or appropriate to facilitate the
realignment, reconstruction. improvement or
repair of public streets, sidewalks, curbs, drains,
sewers, and public improvements of any sort;
provided, however, that a operator may be per-
mitted to abandon any property in place with the
written consent of the City.
(2) If any removal, relaying, or relocation is required
to accommodate the construction, operation, or
repair of the facilities of another person that is
authorized to use the public rights-of-way, an
owner or operator of a facility shall, upon thirty
(30) days' advance written notice, take action to
effect the neCessary changes requested by the
responsible entity. The City may resolve dis-
putes as to responsibility for costs associated
with the removal, relaying, or relocation of facili-
ties as among entities authorized to install facili-
ties in the public rights-of-way if the parties are
unable to do so themselves, and if the matter is
not governed by a valid contract between the
parties or a state or federal law or regulation.
(3) In the event of an emergency, or where a facility
creates Oris contributing to an imminent danger
to health,safety, or property, the City may
remove, relay, or relocate any or all parts of !hat J
communications system without prior notice.
12. Restoration.
(1) If an owner or operator of a facility disturbs a
pavement, sidewalk, driveway or other surfacing,
or landscaping, or other structure, either on pri-
vate property or in public rights-of-\'(cIy, the
owner or operator shall, in a manner approwd by
the City, replace and Al$tore alI~,__
walk, driveway or other surfacing. Of'~.
disturbed, in substantially the same condition. and
in a good, workmanlike, timely manner, in acc;;or~
dance with any standards for such work set by
the City. Such restoration shall be undertaken
within no more than ten (10).days after thec:lam~
age is incumld, weather permitting, and shall be
completed as soon as reasonably. possible there-
after. The owner or operator shall guarantee and
maintain such restoration for at least one year
against dtrfective ~,or ~jp. , " ;, ( \.: ,I I; {,.,
, ,(2), In thE! event an,01I'II16f,or~of,a,faGility fails I ' I ", \ 1: , "
tOCOl.~~,~~fal:u..e~ (,.;, . '\
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14
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CITY Of DUBUQUE CABLE RIGHT-Of-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
LEGAL NOTICE
or r~oration of the public rights-of-way, or any
other work required by City law or ordinance, with-
in the time specified by and to the reasonable sat-
isfaction of the City, the City, following notice and
an opportunity to cure, may cause such work to
be done, and the an owner or operator of a facility
shall reimburse the City the cost thereof within thir-
ty (30) days after receipt of an itemized list of such
costs; or the City may recover such costs through
the security fund provided by an owner or operator
of a facility, pursuant to the procedures for recov-
ery from the security fund specified in the owner or
operator's franchise agreement.
(3) Any and all public rights-of-way, public property,
or private property that is disturbed or damaged
during the construction, repair, replacement,
relocation,operation, maintenance, or recon-
struction of a system shall be promptly repaired
by the an owner or operator of a facility.
13. Work Permits
(1) No person shall install, erect, hang, lay, bury, draw,
emplace, construct, or reconstruct any facility
upon, across, beneath, or over any public right-of-
way in the City, or enter into the public rights-of-
way to work on a facility, other than routine repair
or maintenance, without first obtaining a work per-
mit therefor from the City Manager or the City
Manager's designee pursuant to City of Dubuque
Code of Ordinancesi 41-61. Notwithstanding the
foregoing, under nO provision in this Ordinance
shall any work permit or other approval from the
City be required to install, construct, repair,main-
tain or replace any service drop.
(2) A franchise under this Ordinance shall not render
unnecessary or take the place of such work permits.
14. Business Ucense
A franchise under this Ordinance does not render
unnecessary or take the place of any generally applica-
ble business license that may be required by the City
for the privilege of transacting and carrying on a busi-
ness within the City generally.
15. Reimbursement of Costs
All Grantees will reimburse the City for its intemal and
out-of-pocket costs, including but not limited to attor-
neys' and conliultants' fees, actually and reasonably
incurred by the City in connection with an application
for an initial franchise under this Ordinance, as deter-
mined by the City after it takes action on fheapplica-
tion. Any application fee submitted with the applica-
tion will be credited against this amount. The
Applicant will remit to the City payment for such costs
within thirty days of its receipt of the City's invoice.
16. Administration
The City Manager or his or her designee shall -
(1) Collect any applicable fees from all owners or
operators of facilities using public rights-of-way
in the City;
(2) Audit any franchise fees or payments owed to
the City;
(3) Publish from time to time a schedule of applica-
tion and hearing fees, which shall be designed to
recover the City's costs in processing applications
hereunder and may provide specially for hearing
fees in those cases where hearings are required;
(4) Be responsible for the continuing enforcement of
all terms and conditions of franchises under this
. Ordinance.
17. A!.Idim
Each owner and operator of facilities in the public
rights-of-way shall maintain books, records, and plant
accounts sufficient to document its obligations for any
fee or payment owed pursuant to the City Code.
Such books, records, and accounts shall be main-
- "i ''', ".~l'UJq.av.ail&\b~Jpr)~kil.r;l for a period of four
ifl!:1if1 b~~~rt~ _)~ books, records,
and accounts srnlfl be maintained and available during
the continuation of any audit by or on behalf of the
City commenced during such four-year period or dur-
ing any dispute or litigation with respect thereto.
tection under bankruptcy laws, or any jUdg-
ment related to a declaration of bankruptcy
by the owner or operator or by any partner-
ship or corporation that owns or controls the
owner or operator directly or indirectly.
(4) Records Required. An owner or operator of
facilities in the public rights-at-way shall at all
times maintain:
(A) A full and complete set of plans, records,
and "as builtft IT1ap$ showing the exact loca-
tion of all equipment installed or in use in the
City, exclusive of customer service drops.
(B) A file showing its plan and timetable for
future major construction of the facilities.
(5) Voluminous Materials:
If any books, records, IT1ap$ or plans, or other
requested documents are too volW'flinous, or for
security reasons cannot be copied and moved,
then an owner or operator Of taciIIties in the public
rights-of-way may request that the inspection take
place at some other location, provided that (1) the
owner or operator must make necessary arrange-
ments for copying documents selected by the
City after review; and (2) the owner or operator
must pay all travel and additionat copying expens-
es incurred by the City in inspecting those d0cu-
ments or having those documents inspected by
its designee, as charges incidental to the enforc-
ing of the owner or operator's franchise or other
~ for use of ~ public rights-of-way.
18. ReDOrts and Records.
(1) Open Books and Records:
(A) The City shall have the right to inspect and
analyze at any time during normal business
hours at the nearest office of an owner or oper-
ator of facilities, or, if such office is not in the
City, then at such other location in the City as
the City may reasonably designate, all books,
receipts, maps, records, codes, programs, and
disks or other storage media and other like
material reasonably appropriate in order to
monitor compliance with the terms of this
Ordinance or applicable law, where the owner
or operator shall have the burden of showing
that such materials are not reasonably appro-
priate. This includes not only the books and
records directly relevant to enforcement of this
Ordinance or the owner or operator's franchise
agreement that are heIcI by the operator. but
any books and records heIcI by an Affiliate, or
any contractor, subcontractor or any person
holding any form of management contract for
the facilities in the public rights-of-way to the
extent such books or records relate to the facil-
ities. An owner or operator is responsible for
collecting the information and producing it at a
location as specified above. The City shall
provide the owner or operator with advance
notice stating the types of recorcIs sought to
be reviewed and the reason for such review.
(B) Access to an owner or operatOr's records shall
not be denied on the basis that said records
contain "profilrietary" information. Any confi-
dential information received by the City shall
remain confidential insofar as permitted by the
Iowa Open Records Act, Iowa Code Chapter
22, and other applicable state and federal law.
(2) Annual Report:
Unless this requirement is waived in whole or in
part in writing by the City, no later than 120 days
after the end of its fiscal year, each owner or
operator of facilities in the Public Rights-of-Way
shall submit a written report to the City, in a form
directed by the City, which shall include:
(A) An organ~tional chart showing all corpora-
tions or partnerships with more than a five
(5) percent ownership interest in the owner
or operator, and the nature of that ownership
interest (limited partner. general partner, pre- 21. Enforcement
ferred shareholder, etc.); and showing the (1) Penalties. For violation of provisions of this
same information for each corporation or Ordinance or its franchise under this Ordinance,
partnership that holds such an interest in the including but not limited to the following, penalties
corporations or partnerships so identified, shall be assessable against an owner or operator
and so on until the ultimate corporate and and shall be chargeable to its performance bond
partnership interests are identified. and/or letter of credit in any amount up to the Iim-
(B) Detailed, updated maps depicting the loca- its specified in City of Dubuque Code of
tion of all facilities located in publiC rights-of- Ordinances Chapter 2, at the City's discretion:
way in the City. (A) For failure to supply information, reports, or
(3) Special Reports filings lawfully required under app/ia1bIe law
Unless this requirement is waived in whole or in or agreements;
part by the City, the owner'Dr operator of facili- (B) . For failure to render payments due under this
ties in the public rights-of-way shall deliver the Ordinance, any applicable agreement or
following special reports to the City: applicable law;
(A) An owner or operator shall submit monthly (C) For failure to file, obtain or maintain any
construction reports to the City for any major required performance bond or letter of credit
construction undertaken in the public rights- in a timely fashion;
of-way until such construction is complete. (D) For failure to restore damaged property.
The owner or operator must submit updated (2) In addition to any other remedies hereunder. the
as-built system design maps to the City, or City may seek an injunction to m~~ or termi-
make them available for inspection with notice nate a violation, or employ any ot~,,~medy
of their availability, within 30 days of the com- available at law or equity, including but not limit-
pletion of system construction in any geo- ed to imposition of penalties pursua,nt to Title I,
graphic area. These maps shall be developed Section 21 (1).
on the basis of post-construction inspection (3) Any failure of the. City to insist on timely perform-
by the owner or operator and construction ance or compliance by any person shall not con-
",," t ".ne PfM'SOIlnel.An)ld~l,llesOO design must. y,'1 ,",',' "'Sl~yt't.~.~~ ~f,~,eJ~iW:~'iS!iI; te~ insist
,.j t.) !'.'I,J:;'~I/.be~O!1-v-...JIS~,~. f,'; (Jt.'r,'>"<.l~<~-Mff~'fft~.py that
(8). An owner or operator must submit a copy person or any other person.
and brief explanation of any request for pro- (4) Termination on account of certain assignments
19.1Iond or Letter of Cred~
No person shall install, erect, hang, lay, bury, draw,
emplace, construct, reconstruct, maintain, or operate
any facility upon, across, beneath, or over any public
right-of-way in the City or other City property until
the owner or operator shall have filed with the City
Manager a bond and/or letter of credit, in a form
acceptable to the City, running in favor of the City, to
guarantee the obligations of the owner or operator
under this Ordinance and applicable law. The
amount of the bond or letter of credit shall be no
less than the reasonable cost of removal of the facili-
ties and restoration of any affected public rights-of-
way or other property pursuant to this Ordinance.
20. Insurance An owner or operator shall maintain insur-
ance covering its facilities and operations in the public
rights-of-way, as specified in a specifk: title herein or
in its franchise agreement.
-
CITY OF DUBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
franchise under this Ordinance, limit the amounts
owed to the City, or in any respect pnwent the City
from exercising any other right or remedy it may have.
or appointments
(A) To the extent not prohibited by the United
States Bankruptcy Code, a franchise under
this Ordinance shall terminate automatically by
force of law one hundred twenty calendar
days after an assignment for the benefit of
creditors or the appointment of a receiver or
trustee (1OCIuding a debtor-in-possession in a
reorganization) to take over the business of the
owner or operator, whether in bankruptcy or
under a state law proceeding; provided, how-
ever; that such franchise shall not so terminate
if, within that one-hundred-twenty-day period:
(i) Such assignment, receivership or
trusteeship has been vacated; or
Oi) Such assignee, receiver, or trustee has
cured any defaults and has fully complied
with the terms and conditions of this
Ordinance and any applicable agreement
and has executed an agreement,
approved by any court having jurisdiction,
under which it assumes and agrees to be
bound by the terms and conditions of this
Ordinance and any applicable agreement.
Oii) In the event of foreclosure or other judicial
sale of any of the facilities, equipment, or
property of an owner or operator of facili-
ties in the public rights-of~way, its fran-
chise under this Ordinance shall automati-
cally terminate thirty (30) calendar days
after such foreclosure or sale, unless:
(a) The City has approved a transfer to
the successful bidder; and
(b) The successful bidder has covenanted
and agreed with the City to assume
and be bound by the terms and con-
ditions binding its predecessor.
(Iv) Any mortgage, pledge or-lease of facilities
in the public rights-of-way shall be sub-
ject and subordinate to the rights of the
City under this Ordinance, any applicable
agreement,and other applicable law.
(8) If a franchise under this Ordinance is termi-
nated for any reason, the City may, at its dis-
cretion, require the Grantee to remove its
facilities from the public rights-of-way and to
restore the publiC rights-of-way to their prior
condition at the owner or operator's expense,
or that of their sureties. If an owner or opera-
tor whose franchise has been terminated
fails, after reasonable notice from the City, to
remove its facilities from the public rights-of-
way, such facilities shall be deemed aban-
doned and ownership forfeited to the City.
(5) All remedies specified in this Ordinance are cumu-
lative unless otherwise expresSly stated. The
exercise of one remedy shall not foreclose use of
another, nor shall the exercise of a remedy or the
payment of liqUidated damages or penalties
relieve an operator of its obligations to comply
with this Ordinance. In exercising any remedy
specified in this Ordinance, the City shall comply
with any substantive and procedural requirements
for exercising such remedies in an owner or oper-
ator's franchise agreement or other authorization.
(6) The owner or operator shall pay any penalty
assessed in accordance with this Section 21
within fourteen (14) days after receipt of notice
from the City of such penalty.
(7) The City may reduce or waive any of the above-
listed penalties for good cause shown.
15
City, except where prohibited by applicable law.
(6) Definitions.
(A) AccessChannel. Any channel on a cable
system set aside by a Grantee for public,
educational, or governmental use.
(B) Basic Service. ThatCable Service tier which
includes all signals of domestic television
broadcast stations provided to any sub-
scriber (except a signal secondarily transmit-
ted by satellite carrier beyond the local serv-
ice area of such station, regardless of how
such signal is ultimately received by the
Cable System); any public, educational, and
governmental programming required by the
franchise to be carried on the basic tier; and
any additional video programming signals
added to the basic tier by the cable operator.
(C) Cable Act. The Cable Communications
Policy Act of 1984, 47 U.S.C. ~~ 521 et
seq., as amended from time to time.
(D) Cable Operator. Any person or group of per-
sons (A) who provides cable service over a
cable system and directly or through one or
more affiliates owns a significant interest in a
substantial portion of such cable system, or
(B) who otherwise controls or is responsible
for, through any arrangement, the manage-
ment 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) sub-
scriber interaction, if any, which is required
for the selection or use of such video pro-
gramming 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 multi-
pie 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 facili-
ty 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 sub-'
ject, 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 transmis-
sion of video programming directly to sub-
scribers; (4) an open video system that com-
plies 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 ter-
minal 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 fran-
chiseagreement.
(J) Governmental Access Channel or
Governmental Channel. Any channel on a
cable system set aside by a Grantee for gov-
ernment use.
(K) Installation. The connection of system serv-
ices to subscribers' television receivers or
other subscriber-owned or -provided termi-
nal equipment.
(L) Normal Business Hours. Those hours during
which most similar businesses in the com-
, ., 'I -., J j > "l1'Iunityare'opeA.to>serve-oustorners, includ-
." I. ~, c t 'I c: i;;g15Ome eYeI'Iing:h43unHltllleeisUlne night
hi J'j ~"..;.,:'l,J.. ').lJ: ;It:i,'t./l,l.l,',; ,l~~ ::Li;d a:,',dJ:.,":d udJ)
23. SeverabIitv.
If any term, condition, or provision of this Ordinance
shall, to any extent, be helclto be invalid or unenforce-
able, the remainder hereof shall be valid in all other
respects and continue to be effective. In the event of
a subsequent change in applicable law so that the pro-
vision which had been held invalid is no longer invalid,
said provision shall thereupon return to full force and
effect without further action by the City and shall there-
after be binding on owners and operators.
TITLE II: CABLE COMMUNICATIONS
1. General Provisions
(1) Title. This Title II shall be known and may be
cited as the "City Cable Communications
Regulatory Code. n
(2) Further Findings and Purpose. The City of
Dubuque, Iowa ("Cityj finds that the further devel-
opment of cable communications may result in
great benefits for the people of the City. Cable
technology is rapidly changing, and cable plays an
essential role as part of the City's basic infrastruc-
ture. Cable television systems permanently occu-
py and extensively make use of scarce and valu-
able public rights-of-way, in a manner different
from the way in which the general public uses
them, and in a manner reserved primarily for those
who provide essential services to the public sub-
ject to special public interest obligations, such as
utility companies. . The grant of a franchise has the
effect of giving the holder extensive economic
benefits and placing the holder in a position of
public trust. The City finds that public conven-
ience, safety, and general weIfar8 can best be
served by estaIJlishing f9gUIatory powers vested in
the City or such persons as the City SO designates
to protect the public and to ensure that any fran-
chise granted is operated in the public interest.
Further, it is recognized that cable systems have
the capacity to provide not only entertainment
and information services to the City's residents,
but can provide a variety of broadband, interac-
tive communications services to institutions and
individuals. Many of these services involve City
agencies and other public institutions.
(3) In light of the foregoing, the following goals,
among others, underlie the provisions set forth in
this Title:
(A) Cable should be available to as many City
residents and businesses as possible.
(B) A cable system should be capable of
accommodating both present and reason-
ably foreseeable future cable-related needs
of the City.
(C) A cable system should be constructed and
maintained during a franchise term so that
changes in technology may be integrated to
the maximum extent commercially practica-
ble into existing system facilities.
(0) A cable system should be responsive to the
needs and interests of the local community, and
shall provide the widest possible diversity of
information sources and service to the public.
(E) A cable operator should pay fair compensa-
tion to the City for the occupation and use of
scarce and valuable local public rights-of-way.
(4) The City intends that all provisions set forth in this
22.lndemnification Ordinance be construed to serve the public inter-
Any indemnity provided pursuant to a franchise agree- est and the foregoing public purposes, and that
ment or other authorization shall include, but not be any franchise issued pursuant to this Ordinance
limited to, the City's reasonable attorneys' fees be construed to include the foI'egoing findings
incurred in defending against any such claim, suit, or and public purposes as integral parts thereof.
proceeding. Recovery by the City of any amounts (5) Delegation of Powers. The City may delegate
under insurance, the performance bond or letter of the performance of any act, duty, or obligation,
credit, or otherwise shall not limit in any way a per- or the exercise of any power, under this
J .,. , ., son's duty'to'ilidemhify1heOty,'nbl' shall such recov- " , '. , , Ordinance Of any lfranehiSEfagreementto any
I..,' I .. erv~-'a person~df'its o~ pursuant to an < emPl~, o1Ificer.~ agency of the
> iLG ,~ ;:: 'I :j" /1; oJ'" I( r:r 2 -~ \:' " J). ; II I J"J ~ . ~J ',i 1 )";, ': '", ) '., It\J ..... ' C..'1
.:.~I'31:C_l:j~,'.f ,'r)~.t..::. "J ~lt... )j',f 1-,( iTj7..3"li r,,',f .J:: (v! 'r, "f ='J J' 1 V'i, \. li\Jr'~'J 11"';:1 1>'1'''' 1'1 C-
~~"-'"""~~~;::>- ~--:::::-':"~-~=:,~..;;.;...-;
':;> L i) \:;j't-:'I ~ ),J ,~~ ';fA.& \..1:; ~{I,Ct~L((,lll<; t~(:
""_".H"~"'" _''''""..",',', ___~__
16
CITY OF DUBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
LEGAL NOTICE
'>
per week and/or some weekend hours.
(M) Nonnal 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 limit-
ed to, natural disasters, civil disturbances,
power outages, and telephone network out-
ages. 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 pr0-
duces or otherwise provides program material
or information for transmission by video, audio,
digital or other signals, either live or from record-
ed 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) ~ Any primary or secondary school or
college accredited by the State of Iowa,
including without limitation all accredited post-
secondary institutions such as community col-
leges, technical colleges and universities.
(Q) Securitv 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 Interruotion. Loss of picture or
sound on one or more channels, or degrada-
tion of picture or sound beyond pennissible
levels as defined by applicable law.
(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 (8) the rights ancI/or obligations
hek:I 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," pro-
vided 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, opera-
tion, or repair of the system may be made with-
out 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 com-
plying with, this Title, franchise agreement or
other applicable law or regulation; or (2) pennit a
third party to succeed to the interest of the
Operator, or to own or control the system, with-
out the prior consent of City. Any mortgage,
pledge or lease shall be subject to and subordi-
nate to the rights of City under any Franchise,
this Title, or other applicable law.
(i) MControl" for purposes of this . Section 1 (6)(1)
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
-[,bit b j,)Q.... ~;,-~ .~)"i,f."d oJ:,c;,":: ,t'.
B 10 \POLI8r~i~4WJl!i~j~er 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 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 indi-
rectly within the Grantee's control, such
event shall constitute a "transfer" for purpos-
es 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 fran-
chises, 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 grant-
ed by the City. No person may be granted a
franchise without having entered into a fran-
chise agreement with the City pursuant to
this Ordinance.
(2) Tenn 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.
(A) A franchise authorizes use of public rights-
of-way for installing cables, wires, lines, opti-
cal 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
U.S.C. ~ 541(a)(2)), or to use publicly or pri-
vately 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 detennines appropri-
ate; or affect the City's right to itself con-
struct, operate, or maintain a cable.system,
with or witbout a franchise, subject to appli-
cable state-and federat law.
(0) All privileges prescribed by a franchise shall
be subordinate to (without limitation) the
City's use of the public rights-of-way for pur-
poses that do not directly or indirectly com-
pete with the Grantee and to any prior lawful
occupancy of the public rights-of-way.
(E) No reference herein, or in any franchise
j., ',,, (3 I' ~,J9 ~puJ:>lic;'~f-way" shall be
. deemed!o bJAl~ 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 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
cIeemed to waive the requirements of the vari-
ous codes and ordinances of the City regard-
ing permits, zoning, fees to be paid, or man-
ner 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 franchis-
es as may now or hereafter; be lawfully pennis-
sible; except where rights are expressly waived
by a franchise agreement, they are reserved,
whether expressly enumerated or not.
(0) The City may, from time to time, issue such
reasonable rules and regulations concerning
cable systems as are consistent with appli-
cable 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.
(0 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.
(i0 To be acceptable for filing, a signed
original of the application shall be sub-
mitted together with twelve (12) copies.
The appHcation must be accompanied
by any required application filing fee,
conform to any applicable request for
proposals, and contain all required infor-
mation. All applications shall include
the names and addresses of persons
authorized to act on behalf of all appli-
cants with respect to the application.
(iiO 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 S4;IctiQn 2(6){B)(iii). conducting
such investigl:ltions as it deems neces-
sary; or .(b) issue a Request for Proposals
rRFPj, after c:onducting, if necessary, a
proceeding to identify the future cable-
related needs and interests of the commu-
nity. Any such RFP shall be mailed to the
person requesting its issuance and made
available to any other interested party.
Co j 1m;; v;31~i~~~)moposed fran-
"" !r.:)l:;s<i 9~1.1~_1l~, "~llbb
-
CITY OF DUBUQUE CABLERIGHT-0FWAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5,2005
11
Oil An applicant shall respond to a RFP by fil-
ing an application within the time directed
by the City, delivering a copy to each
existing Grantee and providing the infor-
mation 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)0) herein need not refile
the sarne materials wWt 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 addltional information
from any applicant and establish deadlines
for the submission of such information.
(iiQ In evaluating an application for a fran-
chise, 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;
(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 reason-
able in light of the needs and interests of
the communities served;
(c) Whether the applicant has the finan-
cial, 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 inter-
ests 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;
(1) Whether, to the extent not considered
under subsection 2(6)(8)(iiQ(d), the appli-
cant will provide adequate Public,
Educational, and Govemmental access
channel capacity, facilities, or financial
support;
(g) Whether issuance of a franchise is
warranted in the public interest consider-
ing the immediate and future effect on
the public rights-of-way and private prop-
erty that would be used by the cable sys-
tem, including the extent to which instal-
lation 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 appropri-
ate franchise agreement, it shall issue a
franchise. If the City denies a franchise,
it will issue a written decision explaining
why the franchise was denied. Prior to
deciding whether or not to issue a fran-
chise, the City may hold one or more
public hearings or implement other pro-
cedures under which comments from the
public on an application may be
,c',~rc~:iil€enle(Wll\eCitf6is(f~y grant or
deny a reQ~1i! ~hise based on
its review of an application without fur-
ther 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 mini-
mum, the following information:
(Q Name and address of the Iilpplicant and
identification of the ownership and con-
trol 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 appli-
cant, and all persons with five (5) percent
or more ownership interest in the appli-
cant 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 tech-
nical ability to construct and/or operate
the proposed cable system, including
identification of key personnel.
(iiQ 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 neces-
sary authority under Iowa law to operate
a cable system.
(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.
Ov) 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 identifi-
cation of communities in which the
applicant or any of its principals have, or
have had, a cable franchise or any inter-
est 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.
tyii) 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 construc-
tion schedule; a description, where
appropriate, of how services will be con-
verted from existing facilities to new
facilities; and information on the avail-
ability of space in conduits including,
where appropriate, an estimate of the
c' _' ,'_',' , ., ',,'. . -cOst.Of any 'Re06sso/}' rearrangement of
'J~J','.",'~", .~tSlfng.faeilitiEis"t " ,-.~;-:L
(ix) A demonstration of how the applicant
will reasonably meet the Mure cable-
related needs and interests of the com-
munity, including descriptions of how the
applicant will meet the needs described
in any recent community needs assess-
ment conducted by or for the City, and
how the applicant will provide adequate
Public, Educational, and Governmental
access channel capacity, facilities, or
financial support to rneetthe communi-
ty's needs and interests.
(x) Pro forma financial projeCtions for the
proposed franchise term, ~ricttidJng a
statement of proj~ incOme, and a
schedule of planned~eJ(penditures,
with all significant assunlpttons~xplained
in notes or supporting scheduleS.
(xQ If the applicant proposes to provide
cable service to an area already served
by an existing cable Grantee, the identifi-
cation 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.
(xiQ Any other information that may be rea-
sonably necessary to demOnstrate com-
pliance with the requirements of this
Ordinance.
(xiiQAny 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 enfon::e-
ability 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.
(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 modifica-
tion, 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 U.S.C. ~ 545, and, if so, a demon-
stration that the requested modification meets
the standards set forth in 47 U.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 applica-
tien, and certifying that the application is
consistent with all federal and state law
requirementS.
(9) Public Hearing. Pridflt'<!ffi iSS\fa~of a fran-
. ') 1:; -c~tfle1t1i9'!ila1V~_l1OIdliig of a
18
CITY OF DUBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
LEGAL NoTICE
"
public he8ring.within the proposed franchise area,
following reasonable notice to,the public, at which
the applicant and its. application shall'be exam-
ined,aDcUbe..pUb/icandall int~<<f parties
afforded a I1l8SOl1abIe opportunity to be heard.
(10) Acceptance of Franchise. Following approval
, by'the City,' and unless otherwise specified in a
franchise agreement, any franchise granted pur-
suant to this Ordinance, and the rights, privi-
leges and authority granted by a franchise
agreement, shall take effect and be in force from
and after the first date on which both the
Gfantee,andti1e City have accepted and signed
the frwlc:hise agreement.
3. ~'StandMds,
(1) TheconslruCtlon, operation, 1118l..teh...lCe,and
repairdaCllble systemshd'beirt accOIdlI. '
with alappIiCabIe sections of, the 00cupati0naI
SafetyandHeelthAct of 1970. as ~;the
most a.wrent,editionof the NationaJ ,Electrical
Safety Code and National Electric Code;
Obstruction ~ and Ughting, AC 7on460
i.e., Federal Aviation Adminiatratlon; Construction,
MarkIng and Lighting of Antenna Structures,
FederatCommunications Commission Rules Part
17; the BeIIcoIe Blue BoOk ManuaJ Of
ConstnJction Procedures; Applicant's
Construction ProcedUl9S Manual; and other appli-
cable federal, state, or local laws and regulations
that may apply to tml operation, construction,
maintenance, or repair of a cable system, includ-
ing, without ~mitation, local ZQning and construc-
tion codes and laws and accepted indUstry prac-
tices, all as hereafter may be amended or adopt-
ed. In the evEirrt of a conflict among codes and
standards, the most stringent code or standard
shall apply (except insofar as that standard, if fol-
lowed, 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 stanclardsas
required to ensure that work CQIltinues to be per-
formed 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 substruGtures. In publicrights-of-
way, where necessary, the locatiOn shall be veri-
fied by excavation.-
(4) , To the extent practicable,' above:-ground, equip-
ment; 'Other than subscriber drop Iitles and single
dweIIiflg unit or other similar interface devices
attached to customer structures, placed on pri-
vate property shaH 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.PubIic Propertv
(1) Should the grades or lines of the public rights-
of-way that Ii Grantee is authorized by a fran-
chise to use and occupy be changed .at any time
during the term of a franchise, theGrantee 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 pubIiQ:right8-of-way
p vII()........l/DII1MeOu(ltfClJl~~..Illf,!i1
~~--
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,I'nIIiiltaining'of'asyatem.. the
Grantee shaH also protect ~y and an existing
structures belonging to ,the.City and any other
person. All workperforrn8d by the Grantee shall
be done in thell"lBl'lner prescribed by the City or
other officials having-jurisdiction 'therein.
5. 1nII....... willi ~......~
NoIhing in this Orthncear eny frwlchiseagreemElnt
shaI be' in 'prel'elepoe Q' hindrance to'1he right Of the City
n:t 'trPJ bclerd..~ COr I 6) 8bl a public service
corpor8tiOl. to perbm a CMy on q pttic wortcs or
public improIIements dfqde6a1:Aion, 'lh:t shoukt a
6rantse'ssysllemin ..yway~ wiIh theconstluc-
" tim,~ofSldY~wortcsorptDo.
lie ~ 1heQWlllBeshal'polect aretlcate lis
sysBn, a f*1 theI8ot,,_ lWEI! CIIlIbIy dinlctecI by.eny
City o<<iciaI; boMI, ~~~O/l.ilissiclJ'Ulr public serv-
ice CClrpOftltion, cor lSistent WIth the requirements Of this
Ordinance n:t the.fra1chise IIQAl6ITI8Ill
6. ConItumer Protection
(1) General Provisions. This Section sets forth mini-
mum customer seMce standaIds that a Grantee
must satisfy. In addition, the G~ee shall at all
times satisfy any additional or stricter require-
ments established by FCC regulations, or other
applicable federal, state, or JocaIlaw or regula-
tion, 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;
(10 the City frOm enforcing, through the end
of a franchise term, pre-existing cus-
tomer service requirements that exceed
the standards set fortl1io 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 fl5tabIlshment, or enforcement of any
City law or regulation concerning customer
service that imposes customer service
requin:rnents that exceed, or address mat-
ters not addressed by, the standards set
forth in this,Ordinance, a franchise agree-
ment or federal or state law;
(v) the City from waiVing, for good cause,
requir8merrts 'established in this Section 6.
(2) Nothing in this Ordinance in any way relieves a
, Grantee of its obIlgati0n tctcomply with other
appItcabIecOnsumer protection laws and its
franchlse; agI8eI'ileAt;,
(3) Installations, Connections, and Other Grantee
Services.
(A) . Standard'lnstallations. Except as federal
rate regulations may otherwise require or
preempt, th8 Grantee shall not assess a sub-
scriber any coSt other than a standard instal-
lation charge for service drops, for a single
outlet, unless.the Grantee demonstrates to
the City's satisfactionthatextraotdinary cir-
cumstances ju$tify a higher charge.
(B) The subscriber's, pt1lfei'ence as to the point
of entry:into the reSidence shall be observed
whenever ,feasible. Runs in building interiors
shall be as unobtrusive as possible. The
Grantee'shall use due care in the process of
installation and shall repair any damage to
the subscriber's property caused by said
installation. Such restoration shall be under-
taken as soon as possible after the damage
- (' , ,.,r F ; ~ is'jJlourr~~hmd,shall be cempleted within no
n,Jj N H~'IORlttM~3!l~ya:afterthe damage
. -
--- ..-
_ _.________~~. _,._.__' __"__ .-.......;...;00..___---. ~~_...-c-.._
is inctmld.
(C) - L.ocationof Drops. In locations where the
Grantee's system'must be underground,
c:IrQps roost be placedUl'lder9'ound as welL
Except as federal law may otherwis8 require,
in. any area wI'Mn'a Grantee would be entitled
, to install a drop aDove-ground; the Grantee
will provide the homeowner the option to
have the drop installed underground if
requc:isted, but may charge the homeowner
the ~ bl3tween. the actuaJ cost of the
aDove-ground'lnstaIIatIon and the actual cost
of the'underground instaIIatlon.
.(0) Ttmefor Extension. Where a Grantee is
~ under this Section 6(3)(A) to provide
service to' a penon,. most provide such
service (i) within 3O~,ofthe person's
request,if:$UCh ~ resides no further
, " ~fifty~'feet from tI'l8;.,
Grant$e's tfistr:ibution ~fil) within sixty
da)t$lftheperson A!lSidesmore than one
ht,Jndred fifty (150) feet from the Grantee's
distribution system, but the distribution sys-
tem need not be extended for one-half mile
or ln9re to provide service; 8nd (Iii} within six
months it an exttlflsion of the distribution
system far one?half mile or more is required.
(E) Deposits. A Grantee may require a reasonable
deposit, on equipment provided to sub-
scribers, in addition to any allowable monthly
rental feel3. 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 inter-
est, shall be returned to the subscriber within
thirty (30) days after termination of service or
retum of the equipment, whichever is sooner.
(F) Antennas, A Grantee shall not. as a condition
to providing cable service, require any sub-
scriber or potential subscriber to remove any
existing ~eption 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 avail-
able to respond to subscriber telephone
inquiries during norni8I bllsiness hours.
(C) Under NormalOperating Conditions, the fol-
lowing standards shall be met by a Grantee
at least ninety (90) 'percent of the time,
measurectquartet'ly.
(I) Telephone answering time shall not exceed
thirty (30) seconds, and the time to transfer
the call to a customer service representa-
, tive (mcluding hold tirrie) shall not exceed
an additional thirty (30) seconds.
01), A customer will receive a busy signal
less ,than three percent (3%) of the time.
Oil) When the business office is closed, an
, answering machine ,or service capable of
receiving and recording service com-
plaints and inquiries shall be employed.
fnquiries 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
,'<. 0,). li_~lIL \ -::maarlinollllde<GOlJtraGlt ~'so\that it can
.~t:PJ~~lcomplaints,
CITY OF DUBUQUE CABLE RIGHTcOF-WAY ORDINANCE . TELEGRAPH HERALD. SUNDAY, JUNE 5, 2005
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 meas-
ured on a quarterly basis:
(i) Repairs and maintenance for service
interruptions and other repairs not requir-
ing 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 repre-
sentative or the interruption or need for
repairs otherwise becomes known to the
Grantee.Worl< on all other requests for
service must be begun by the next busi-
ness day after notification Of the prob-
lem. All such worl< 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 worl<
could not be completed in the specified
time periods even with the exercise of all
due diligence, the Grantee shall com-
plete the worl< in the shortest time possi-
ble; the failure of a Grantee to hire suffi-
cient 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 Grantee becomes
aware of the outage, including
Saturdays, Sundays, and legal holidays.
(ii) The appointment window for installa-
tions, 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 appoint-
ment with a subscriber after the close of
business on the business day preceding
the appointment. If a Grantee's represen-
tative 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 sub-
scriber.
(B) Each Grantee shall perform service calls,
installations, and disconnects at least during
normal business hours. In addition, mainte-
nance service capability enabling the prompt
location and correction of major system mal-
functions 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 inter-
ruptions, on a twenty-four (24) hour basis.
(0) Other Inquiries. Under Normal Operating
Conditions, billing inquiries and requests for
service, repair, and maintenance not involv-
ing service interruptions must be acknowl-
edged by a traiFled customer service repre-
sentative 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 ,inqIllil'ies within fi\19 '(5) business
. days ,of the,lnquiryor\ aomplalat.
(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 ~a subscriber.
(Fj Missed Appointments. If a subscriber expe-
riences 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 ~iquidated
damages.
(G) Mobility-Umited Subscribers. With regard to
mobility-limited subscribers, upon subscriber
request, each Grantee shall arrange for pick-
up 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 inten-
tionally 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 sub-
scriber's service problems,.only after a minimum
of forty-eight (48) hours' prior notice to sub-
scribers 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 sub-
scribers, 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 recon-
nected to a cable system and at least once
annually afterwards, and at any time upon
request, the Grantee shall provide each sub-
scriber with written information conceming
the following. Copies of all such materials
provided to subscribers shall also be provid~
ed 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 serv-
ices, options, and conditions;
(ii) a description of the Grantee's installation
and service maintenance policies, delin-
quent subscriber disconnect and recon-
nect procedures, and any other of its
policies applicable to its subscribers;
(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 sub-
scriber 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, pro-
gramming services, business hours, or pro-
, cedures for responding.t~ inquiries after nor-
. ,. , , mar business hours. ' At-least five working
._--,."~-._~,~~.,_.._"-"_._,_.., ,_,'''....,..,
19
days before the subscriber notice, unless
waived by the City, the Grantee shall provide
to the City the specific points to be con-
tained ina 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, announce-
ments, and advertising of residential cable
service te> subscribers and the general public,
where price information is listed in any man-
ner, shall clearly and accurately disclose price
terms. In the case ofpay~per-view or pay-
per-event programming, all promotional
materials must clearly and accurately dis-
close price terms and in the case of tele-
phone orders, a Grantee shall take appropri-
ate steps to ensure that price terms are
clearly and accarateIy disclosed to potential
customers before the order is accepted.
(0) Each Grantee shall maintain a public file
containing all notices provided to sub-
scribers under these customer service stan-
dards. Copies of all such notices sent to
subscribers, and of any agreements used
with subscribers, shall be filed promptly with
the City.
(8) Subscriber Agreements
(A) The form of any installation or service agree-
ment 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 sucll an agreement is sub-
mitted 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 agree-
ments with'subscribersused by.a Grantee
shall be filed and maintained, one (1) copy
with.the City Cieri< and one (1)oopy 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 understand-
able. Bills must be fully itemized with item-
izations including, but not limited to, basic
and premium service charges and equi~nt
charges. Bills shall clearly delineate all activi-
ty during the billing period, including optional
charges, rebates, and credits. Amounts item-
ized 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, 102d Cong., 2d Sass., at 86 (1992).
(8) Refund checks to subscribers shall be
issued promptly, but no later than the later of
(i) the subscriber's next billing cycle, or thir-
ty (30) days, following resolution of the
refund request, whichever is earlier; or
Qi) 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 fol-
lowing the determination that a credit is war-
ranted.
(0) A Grantee's first billing statement after a new
installation or service change shall be prorat-
ed as appropriate and shall reflect any secu-
. Fity deposit.' ..; 'J ' " ,> ,
{E) A~;bilHngstatememtma~:oshow a
20
CITY OF DuBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELE8RAPH tIERALD . SuNDAY, JUNE 5,2005
LEGAL NOTICE
..
specific payment due date not earlier than the
tenth day of the period for which the service
being billed is rendered. Any balance not
I8C8ived by the end of the period for which
the service is being billed ("Current Monthi
may be assessed a late fee not exceeding five
dollars ($5.00) in 2005 dollars, adjusted for
inftation 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
biRing statement for the month after the
Current Month ("Subsequent Monthi. If a
late fee is shown on the Subsequent Month's
biRing 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 /emit 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 faHure by a
Grantee, including failuA! to timely or correctly
bin the subscriber, or failu/e to properly credit
the subscriber for a payment timely made.
(H) The account of any subscriber shall be cred-
ited a prorated shale of the monthly charge
for the service upon the subscriber's reason-
ably prompt request and, without a sub-
scriber's request, in any case where the
Grantee can identify the affected sub-
scribers, 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
on in t~ 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 Oin if the inter-
ruption is' necessary to perform tests
required by applicable law.
(I) A Grantee shallleSpond to all written billing
complaints from subscribers within thirty (30)
days.
(10) DisconnectionlDowngrades.
(A} A subscriber may terminate service at any
time unless the subscriber has voluntarily
entered into a contract for service for a term
of \ongsr 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 termi-
nation 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 neces-
sary to ,**ve a service within five (5) busi-
nessdays of the disconnection, no charge
may be imposed by any Grantee for any
cable service delivered after the date of the
. di$COnnect request.
(ol..tiIty.Security deposit and/or other funds due
.~~ber shall be refunded on discon-
t)\!!cted.accounts after any customer premis-
. es 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).
- ~ . ,', - .~,' ~rlffr~~/'Ib,er,~~~l() ~'a' !"'lOnthly sub-
,-'......11 t..........,J, "j ......<_ ...'....~l..' ",.,',' .,~..,;~.,....~.J ,~...l.
scriber fee or other fee or charge, a Grantee
may disconnect the subscriber's service;
however, such.disconnectlon shall not be
effected until after forty-five (45) days from
the begiMing 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 discon-
nect, given after the 45 days have elapsed. If
the subscriber pays all amounts due, includ-
ing late charges, before the date scheduled
for disconnection,. the Grantee shall not dis-
connect service. ~After disconnec:tion, upon
payment by the subscriber in full of all proper
fees or chaJges, including the payment of the
reconnection charge, if any, the Grantee shall
promptly reinState service. .
(E) A Grantee may immediately disconnect a sub-
scriber if the subscriber is damaging or
destroying the Grantee's cable system or
equipment. After disconnection, the Grantee
shall Nstore service after the subscriber pr0-
vides adequate assurance that it has ceased
the practices that led to disconnectiOn, and
pays all proper fees and charges, \ncIud1ng 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 fed-
erallimits. Disconnection may be effected
after five (5) days' written notice to the sub-
scriber, 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 prop-
erty shall be deemed abandoned, unless
such subscriber is IeSponsibIe for the
Grantee's failure to remove such property.
(H) A Grantee shall reconnect service to cus-
tomers wishing restoration of service, provid-
ed such a customer shalt first satisfy any
pnwious obligations owed.
(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 enter.
ing 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 subsaiber, as a condi-
tion 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 ale
necessary to show compliance with these
customer service standards and FCC cus-
tomer service standaJds.
(8) A Grantee shall file annually with the City a
statement signed by an officer or employee
certifyi(lQ compliance with these customer
servi~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 cal-
endar 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
, . , , st~mdard darinQ1mY calendar qu~er, it shall
i ... ... .. ''f' I~ i.lo I ,\ S. .i .. ~ . J '" 1.1', I J.., ~ t ~
include In its annual filing a statement speci-
fying areas of non-compliance, the reason
for the non-cornpliance and a remedial plan.
(D) An officer or employee of a Grantee who
knowingly and intentionally signs a compli-
ance certificate or noncompliance statement
knowing that such. statement is materially
false shall be guilty of a misdemeanor.
(E) A Grant. that fails to file a compliance cer-
tificate or noncompliance statement as
required herein shall be liable for the pena\ty
specified for violation of customer service
standards herein.
(F) In addition, except as prohibited by federal
law, a Grantee shall be subject to penalties,
forfeitures and any other remedies or sanc-
tions 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 obliga-
tions 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 pro-
vided 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
suchactlons as ale expleSSly authorized by
federal or state law.
7. RIlle ~oItoHftn
The City IeS8rvesthe right to Ngulate all rates and
charges except to the extent it Is prohibited from
doing so by law.
S. FrancbiIIe Fee
(1) Payment of Franchise Fee.
(A) Each Grantee shall pay a franchise fee in an
amount determined In the frsnchise agree-
ment.
(B) In the event that any franchise fee payment
or any recomputation amount Is not paid by
the due date, then int8leSt shall accrue to the
City from such due 1iate at a rate equal to the
interest rate then chargeable for unpaid fed-
eral Income taxes (26 U.S.C. ~ 6621).
(C) In the event that a franchise is /evoked prior
to its expiration date, the Grantee shall file
with the City, within thirty days after the date
of revocation, a financial statement certified
by the Grantee's chief financial offlC8ror 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 orlnUeu of Any Other Tax or Fee.
(A} Payment of the franchise fee shall not be
considered in the nature of a tax, IlOfW1aIl 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 sub-
scriber.
(3) No Accord or Satisfaction. No acceptance of any
payment by the City shall be construed as a
. _' L" ~Iease-or'an'aceord'and satisfaction of any claim
';. I "'; ...J......\~,~ ...r:~ ......,..'~..:'l ~ .1.....,.:., ~,t......:;..;rJ,t:...~.
-
c'1{Y' OF DUBUQUE CABLE RIGHT-OF-WAY.ORDINANcE . TELEGRAPH HERALD . SUNDAY, JlJNE'o, 2005
the City may have for further or additional sums
due or for th~ performance of any other obliga-
tion of a Grantee, or as an acknowledgement that
the amount paid is the correct amount due.
(4) Allocation of Discounts. For purposes of calcu-
lating 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. Svstem Tests and Insoections
(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 con-
nection 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;
(C) special tests when subscriber or user com-
plaints indicate tests are warranted;
(D) special tests at the yity's reasonable
request.
(3) Tests shall be supervised by the Grantee's pro-
fessional 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 require-
ments, 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."'n 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, with-
out requirement of additional notice or request
.fromCity, 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 G(antee. The City will
endeavor to arrange. any request for such tests
so as to minimize hardship or inconvenience to
the Grantee ()r to. subscribers.
)'-
10~lnsurance
(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 Ins!Jrance Schedule attached as Exhibit A is
the City's current schedule.
(A) All contractual liability insurance policies and
'Of" 'r~ I" .,~~~P~'ltp this
. Agreement shall include the provision of the
following Indemnification clause:
To the fullest extent permitted by law, the
Grantee shall indemnify and hold harmless
the City from and against all claims, dam-
ages, losses and expenses, including but not
limited to attomeys' fees, arising out of or
resulting from the Franchise, provided that
such claim, damages, loss or expense is
attributable to bodily injury, sickness, dis-
ease 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 omis-
sions of the Grantee, the Grantee's subcon-
tractor, 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. Reoorts 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 specifi-
cally 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 per-
formance 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 isa 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 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) PublicaCC8ss 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 sub-
scribers 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 serv-
ices, it shall provide such Grantee with the
number of subscribers gained or lost for
each category of service by the City during
the, City:&. fiscalyear~ - , ~, ."
(B) , a summary of c50mplaints, identifying both
!.7' l
-_....-...-___""",_.. __._'m. .=",,,,-_,
21
the number and nature of the complaints
received and an explanation of their disposi-
tions, 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 calll.
received by type during each quarter, and
the percentage of service calls compared to
the Subscriber base by type of complaint;
(0) 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 estimat-
ed duration and the estimated area and the
nllmber of Subscribers affected; and the
total hours of outages and service degrada-
tions 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 explana-
tion of any notice of deficiency, forfeiture, or
other document issued by any state or federal
agency instituting any inve~tigation 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 oper-
ations 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 sl:1all 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 ti~s and in the
form prescribed by the City, such additional
report~with respect to its operation, affairs,
transactions or property, as the City may reason-
ably deem necessary or relevant to the perform-
ance 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
compl~ints.documented in the Grantee's nor-
m8J course of business about any aspect of
the Cable System or the Grantee's opera-
tions, includilJg, 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, dura-
tion, area, number of Subscribers affected,
type of outage, and cause.
(C) Records of service calls for repair and main-
'.'."'. . ~f.l"~ tr1d!~i~~~~e..~dt;f"8 service
was request8cf, the date and time service
......-.-.".._...___10-...'.___......_......______...__
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22
CITY OF DUBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
LEGAL NOTICE
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was provided, and (if different) the date and
time the problem was resolved.
(D) Records of instaJlationlreconnection and
written requests for service extension, indi-
cating date of request, date of acknowledg-
ment, 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 appropri-
ate Subscriber privacy notices. Nothing in this
Section shall be read to require a Grantee to vio-
late 47 U.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 redac-
tion and to challenge it in any forum having juris-
diction 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 pur-
suant 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:
(Q For failure to substantially complete con-
struction in accordance with the fran-
chise agreement;
(iij For transferring the franchise without
approval;
(iii) For failure to comply with requirements
for public, educational, and governrnen-
tal use of the system;
(iv) For violation of customer service stan-
dards; .
(v) For failure, unless such failure is beyond
the Grantee's control, of the system to
perform in the event of a public emer-
gency;
(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 stan-
dards, in assessing liquidated damages for
customer service standards that are meas-
ured on a quarterly basis:
(j) For the first calendar quarter in which
the Grantee does not meet the pre-
scribed standard (a "noncompliant quar-
terj, the Grantee will be subject to
penalties in the amount of $1,500.
Oil 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
I r }"iri acCbtdaMe-\WH tI'lis'O'rdil'iante wltNifi tHlr:' ~.
ty days after receipt of notice from the City.
(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 regu-
latory 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 pend-
ing litigation or petition, in the absence of a
stay issued by a forum of competent juris-
diction, may result in forfeiture or revocation
pursuant to the provisions of this Ordinance
and/or its franchise agreement.
(2) Remedies Cumulative. .6:11 remedies under this
Ordinance and the franchise agreement are
cumulative unless otherwise expressly stated.
The exercise of a remedy or the payment of liqui-
dated damages or penalties shall not relieve a
Grantee of its obligations to comply with its fran-
chise 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 other-
wise 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 fran-
chise, 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 perform-
ance involves personal credit, trust, and con-
fidence in the Grantee.
(B) No transfer of a franchise, Grantee, or cable
system, or of control over-the same (includ-
ing, 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 the
Grantee to the City and the City's prior writ-
ten 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 con-
sent 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 trans-
action, including details on the legal, finan-
cial, 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 modi-
fied by the City:
, ,- '(Q , 'an Infdntlatldn anl:l forms tectutred under
federal law;
Qj) all information required in Sections
2(6)(C)(i)-(v) of this Ordinance;
(iiQ 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) complet~ and unredacted copies of any
contracts, financing documents, or other
documents that relate to the proposed
transaction, and all documents, sched-
ules, exhibits, or the like referred to
therein;
(v) any documents related to the transaction
Oncluding any documents regarding
rates the transferee expects to charge)
that have been provided to any entity
that has been asked to provide financing
(debt, equity, or any other kind) for, or to
underwrite any offering made in connec-
tion 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;
(viiQ 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, pay-
ment schedule, and other terms or con-
ditions 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 pro-
posed 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 increas-
es would be required and why;
Ox) any other information necessary to pro-
vide a complete and accurate under-
standing of the financial position of the
System before and after the proposed
Transfer;
(x) complete information regarding any
potential impact of the Transfer on sub-
scriber rates and service;
(xi) any representations made to anyone, in
connection with the transaction, about
the Grantee's compliance with its
Franchise; and
(xii) a brief summary of the proposed trans-
feree'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 enhanc-
ing 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
~ , , wlliving 'a1'lY' J1g/'ltsthe 'Oty 1'l'ray llavet to
request such information after the initial
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CITY Of DUBUQUE CABLE RIGHT-Of-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
23
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 docu-
ments and information required by Section
13(2)(B), without exception, have been pro-
vided 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 with-
out limitation the execution of any confiden-
tiality agreements that may be appropriate,
prior to the filing of any FCC Form 394 or
transfer application. By accepting its fran-
chise, a Grantee agrees that any transfer
application inconsistent with this require-
ment 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 con-
sider, without limitation, the legal, financial,
and technical qualifications of the transferee
to operate its system; any potential impact
of the transfer on subscriber rates or servic-
es; 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 trans-
feree owns or controls any other cable sys-
tem in the City, and whether operation by the
transferee may eliminate or reduce competi-
tion 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 inter-
ests 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 reme-
dies available under the franchise agree-
ment, 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 fran-
chise agreement or this Ordinance and is
caused in whole or in part by any other enti-
ty or entities, including but not limited to any
parents or affiliated entities, as if such trans-
fer 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, f!'Mohise~reemeAt 'and this
'-:.t'.1 t .r-~ -('~_.~ -"l'F,r"1"" ~ V.I;:I t..c
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Ordinance, and that it will assume the obliga-
tions, 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
wai,ves 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.
14. Ri9hts 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 per-
sons 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 per-
son to waive such rights as a condition of
taking service.
(C) A Grantee shall not deny access or levy dif-
ferent 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 require-
ment, a Grantee is prohibited from discrimi-
nating in its rates or charges or from granting
undue preferences to any subscriber, poten-
tial 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 dis-
counts 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-proflt 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 man-
ner. 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 sub-
scribers based on rational classifications (for
example, the subscriber's credit history),
provided that such imposition does not vio-
late applicable state or federal law.
(2) Subscriber Privacy.
(A) A Grantee shall at all times protect the priva-
cy rights of all subscribers, including but not
limited to those rights secured by the provi-
sions of Section 631 of the Cable Act, 47
U.S.C. ~ 551.
(8) A subscriber may at any time revoke any
authorization to release information by deliv-
ering to the Grantee in writing, by mail or oth-
erwise, 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 sub-
scriber may at any time revoke any permis-
sion previously given by delivering to the
. " '. Gr$iot~ a writt!!l1J st~tement of.that)ntent.
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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 dam-
age 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 will-
ful or gross negligence.
TITLE III: OPEN VIDEO SYSTEMS
1. ADoIicability of Ordinance.
(1) In addition to this Title Ill, Titles I and II of this
Ordinance shall apply to open video systems
that comply with 47 U.S.C. ~ 573, to the extent
permitted by applicable law, except that the fol-
lowing sections of Title II shall not apply: ~ 2(1)-
2(3) (regarding grant of franchise), ~ 2(6) (fran-
chise 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).
(2) In applying this Ordinance to an open video sys-
tem, "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. ADDlication for ODen YIdeo 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 applica-
tion 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 affili-
ates 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 facili-
ties the applicant proposes to place in public
ways.
(C) Any information that may be reasonably nec-
essary 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.
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 p~~;;,aod ~Qf!d1tjPM lilP.6cifted iJl Jtlat. ~tion
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and generally herein.
CITY OF DUBUQUE CABLE RIGHT-OF-WAY ORDINANCE . TELEGRAPH HERALD . SUNDAY, JUNE 5, 2005
LEGAL NOTICE
4. Public. Eduan;onal. and Governmental Access
Obliaations.
An open video system operator shall be subject to obli-
gations pertaining to public, educational, and governmen-
tal access pursuant to applicable law and to the require-
ments herein.
5. Ri9ht-of-Wav Usage.
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, approved and adopted this 2nd day of May, 2005.
~
Terrance M. Duggan, Mayor
Attest:
APPROVED AS TO FORM:
~~
Jeanne F. Schneider, CMC
City Clerk
REVIEWED BY:
~
fhJ ~A1L
Barry A. Lindahl,
Corporation Counsel
Michael C. Van Milligen,
City Manager
Published officially in the Telegraph Herald the 5th day of
June, 2005.
~~
Jeanne F. Schneider, CMC
City Clerk
EXHIBIT B
INSTITUTIONAL NETWORK SITE LIST
Authorized Fiber
Use Destination Count
Dubuque Senior High School, 1800 Clarke Drive C The Forum 6
Hempstead High School, 3715 Pennsvtvania Ave. C The Forum 6
The Forum. 2300 Chaney Road C CoreIRi 12
Archdiocesan Center, 1229 MI. Loretta C CoreJRi 12
Loras CoI'-, 1450 AIta VISta Street R CoreJRl 12
Clarke Colleoe, 1550 Clarke Drive R CoreJR" 12
University of DuDuque, 2000 University Avenue R CoreJRi 12
NICC Downtown Learning Center. 680-700 Main Street C Core/Ri 12
Wartbura fheOlOllical Seminary. 333 Wertburg Place R 12
U of 0 TheoIoaical Seminary, 2000 UnIVllrsitv Ave. l~ with UD) R \UofD 6
Emrneus Bible l;OII8Q8. 2570 ASIlUIy Road R 12
Cameaie-S1out Public Ubrary, 360 W. 11th Street C 12
. City Hall Annex. 1300 Main Street C Core/Rina 12
Landfill Sl up to 5eiDoe1 Rd onIY\ C NA
DBQ Countv Courthouse, 720 Central Avenue C .12
KeYStone Education AaenCV, 2310 Chanev Road C 12
Central Alternative HIah SdIooI 39 BIuIf SlnIet C The Forum 6
City Hall. 50 west 13th Street C . 'I Hal Annex 6
DBQR , 11000 AlI'DOIt Road C Hal Annex 6
Five Fl_ CivIc Center, 405 MIIIn S1reeI C Heft Annex 6
Grand River Center. 500 Bell SlnIet C Hal Annex 6
Fire Trainlna FaciIItv. 13034 (wiI be 11001 Sel&lPeI Road C Fire 6
ECIA,JEIRH (Law Enforcement, 3999 Penna'/lV8nl8 Ave. C The Forum 6
IA Deoartment of Human ServIces a Nesler Center C CItv Hal Annex 6
Federal BuiIdIna, 350 West 6th SlnIet ((;Ily will pUrChase site \ C ICity Hal Annex 6
Nationet Mls8I8siDOi River Mu8eooI & 300 E. ThIrd Street R ICity Hal Annex 6
K Leeming Center. 13066 5elDPeI Road C EcIucalion N1ItJirICV 6
Audubon School. 605 Uncoln SlnIet C The FoIum 6
IBryant Sc:hooI. 1280 Rush Street C The FoIum 6
Fulton School, 2540 Central Ave. C The Forum 6
Hoover School, 3259 St. Ann Drive C The Forum 6
Irvina School. 2520 Pennsytvanie Ave. C The Forum 6
Kennedv School, 2135 Woodland Street C The Forum 6
UncoIn School, 1101 W. 5th Street C The Forum 6
Marahall School, 1450 RIlCIII1ll8IO Ave. C The Forum 6
Table Mound School, 100 Tower Road C The Forum 6
Jefferson Jr. High School. 1105 AJthauser Street C The Forum 6
Jones Jr. High School. 1090 Alte Visla Street C The Forum 6
Washinaton Jr. High School, 51 N. Grendview Ave. C The Forum 6
DBQ Schools Transportation DeIlt, 1350 West Locust Street C The Forum 6
Holy Ghost School , 2981 Central Ave. C Archdiocesan Canter 6
Nativity School, 1001 Alte Vista Street C Archdiocesan Center 6
Sl Anthony School, 2175 Rosedale C Archdiocesen Center 6
SI. Columbkille School 1198 Rush Street C Archdiocesen Center 6
SI. Jc seph the Wor1ter School. 2105 St. Joseon Street C Archdiocesan Center 6
SlJc seph's Key West, 10244 KIly West Drive C Archdiocesan Center 6
Finle Hospital, 350 N. Grendview Ave. (Includina Dubuaue Internal Medicine) E Fe Headquarters 6
Housi na Services, 1805 Central Ave. C C' Hall Annex 6
Fire He iidQuarters, 11 west 9th Street C Hell Annex 6
Fire En ine House No.2, 2180 JFK Road C Hall Annex 6
Fire E/: line House No.3, 3155 Central Ave. C C Hell Annex 6
Fire Er n House No.4, 1697 Universjty Ave. C ICItv Hal Annex 6
Fire E~ ine House No.5, 689 S. GrandvIew Ave. C ICity Hell Annex 6
Fire Engine house No.6. 1500 RnornD8I1:I Ave. C ICItv Hell Annex 6
City Green House (co-Iocated with Ham House Mueeum) C ICIty HeR Annex 6
Kevtine Transit System, 2401 Central Ave. C ICIty Heft Annex 6
Grand Ooera House, 135 W. 8th Street R ICity Hal Annex 6
DBQ Law Enforcement Center. no Iowa Street C ICIty Hell Annex 6
Eagle Point Water Plant, 1902 Hawthorne St. C C' 'I Hall Annex 6
MuniciDal Services CenterlNew Public Worts). 925 Kerper Court C Hell Annex 6
New Cota1tv Jail lco-located with DBQ Law Enforcement Center) C Hell Annex 6
Iowa DeIlt. of Human Services. 960 MaIn Street R Hall Annex 6
Eisenhower School 3170 SDI'lna Va~ Street C The Forum 6
New\ Roosevelt Middle School . C The Forum 6
Wahlert Hiah Sc:hooI 2005 Kane Street C Archdiocesan Center 6
Resurrection School, 4300 ASDUI'Y Road C ArchdIoce8an Cen.... 6
Founlaln Park, 2728 ASDUI'Y Road C Emm8us 6
Mercy Medical Center. 250~ Drive E Fin! HeedQuerters 6
Medical Associates East, 1000 L Street E Fire HeedQuerters 6
Medical Associates West, 1500 Associates Drive E Fire HeedQuerters 6
Fire Engine House No. 7-TBD on West Side C ICIty Hal Annex 6
Leisure Services a Bunker HI. 2200 Bunker HII Road C CItY Hall Annex 6
American Red Croll, 2400 Albury Road E The Forum 6
OBQ MuMum of Art, 701 Locust S1reeI R t;ity Hal Annex 6
OBQ Aree Uf8lIme Center 3505 Stonerrwl Road R The Forum 6
New PI8lICllltt School. (approx. 1249 White S1r8et) C The Forum 6
Locust St. P . 830 BIuIf Street C CIty HeU Annex 6