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Mediacom Cultural Foundation Bd appointments DU~~E ~<k~ MEMORANDUM July 6, 2005 r TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Mediacom Cultural Affairs Charitable Foundation of Dubuque, Inc. Appointment of Two City Representatives to the Foundation Board of Directors ) In April, City representatives met with representatives of Mediacom to complete negotiations on points related to a 15-year Cable Television Franchise Agreement. While not included in the formal franchise agreement, Mediacom agreed to 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 on arts and cultural affairs. Purposes of the Foundation 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. Area Manager Kathleen McMullen met with the Arts and Cultural Affairs Advisory Commission in April. She indicated that she expected the Foundation Board to work closely with the Arts and Cultural Affairs Commission. She stated that the Foundation Board will accept project funding recommendations from the Arts and Cultural Affairs Advisory Commission. The Commission members believe it would be beneficial to have one of the City representatives to the Foundation Board of Directors be from the Arts and Cultural Affairs Advisory Commission. Three seats on the Foundation Board will be filled by Mediacom representatives. Two seats are to be appointed by the City Council. I respectfully request the Mayor and City Council appoint two members to the Foundation. C fl1JL . Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Jerelyn O'Connor, Neighborhood Development Specialist DRAFT ARTICLES OF INCORPORATION OF MEDIACOM CULTURAL AFFAIRS CHARIT ABLE FOUNDATION OF DUBUQUE, INC. To the Secretary of State ofthe State ofIowa: 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 of Incorporation for such corporation: 1. The name of the corporation shall be "Mediacom Cultural Affairs Charitable Foundation of Dubuque, Inc." II. The corporation is organized exclusively for charitable, educational and/or scientific purposes under section 501(c)(3) ofthe Internal Revenue Code in Dubuque, Iowa. ill. The address of the initial registered office of the corporation in the state ofIowa is 2222 Grand Avenue in the City of Des Moines, County of Polk, and the name of its initial registered agent at such address 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 ADDRESS 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 not more than ninety days in the future. In the absence of a statement in the articles of such date, the existence shall commence on the date on which the Secretary of State issues the certificate of incorporation. Existence cannot commence prior to date on which the Secretary of State receives the articles.] V1. The name and address of each incorporator is: NAME ADDRESS Bruce Gluckman Charles King Scott Westerman VII. The location ofthe corporation shall be in the City of Dubuque, State ofIowa. Vill. No part of the net earnings of the corporation shall iriure 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 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, 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). IX. Upon the dissolution of the corporation, assets shall be distributed for one or more exempt purposes within the meaning of section 501(c)(3) of the Internal Revenue Code (or the corresponding section of any future federal tax code) or shall be distributed to the federal government, or to a state or local government, for a public purpose. Any such assets not so disposed of shall be disposed of by a court of competent jurisdiction in the county in which the principal office of the corporation is then located, exclusively for such purposes or to such organization or organizations, as said court shall determine, which are organized and operated exclusively for such purposes. 2 Dated April_, 2005 171598 1 [N ame] [Name] [N ame] Incorporators 3 DRAFT BYLA WS OF MEDIACOM CULTURAL AFFAIRS CHARITABLE FOUNDATION OF DUBUQUE, INC. ARTICLE I PURPOSES, POWERS AND NON-PROFIT STATUS Section 1. Purposes. The corporation is organized and shall be operated exclusively for charitable, educational and/or scientific purposes under section 501(c)(3) of the Internal Revenue Code (or the corresponding section of any future federal tax code) in Dubuque, Iowa. Such purposes shall include enhancing the lives ofthe residents ofthe 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 necessary, or convenient to effect any or all of the purposes for which the corporation is organized, and to aid or assist other organizations whose activities are such as to further accomplish, foster, or attain any of such purposes. The power ofthe 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 ofthe 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 ofthe corporation in the State ofIowa shall be located in the City of Dubuque. The corporation may have such other offices, either within or without the State ofIowa, as the Board of Directors may determine or as the affairs of the corporation may require from time to time. The corporation shall have and continuously maintain in the State of Iowa 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 ofthe 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 term 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 ofthese 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 ofIowa, for the holding of regular meetings of the Board without other notice than such resolution. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President or any two Directors. The person or persons authorized to call special meetings of the Board may fix any place, either within or without the State ofIowa, as the place for holding any meeting of the Board called by them. Section 5. Notice. Notice of any special meeting ofthe 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. Ifnotice be given by telegrarri, 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 - 2 - Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice or 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 Directors created by the departure of a director originally appointed by the City Council shall be filled by a succeeding director appointed by the City Council and any vacancy in the Board of Directors created by the departure of a director originally appointed by MCC Iowa shall be filled by a succeeding director appointed by MCC Iowa. A Director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office. Section 9. Compensation. Directors as such shall not receive any stated salaries for their services, but by resolution of the Board of Directors a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board not to exceed the sum of $50 for each director for each meeting and further not to 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 if a consent in writing, setting forth the action so taken, shall be signed by all of the Directors. ARTICLE V OFFICERS Section 1. Officers. The officers of the corporation shall be a President, one or more Vice Presidents (the number thereof to be determined by the Board of Directors), a Secretary, a Treasurer and such other officers as may be elected in accordance with the provisions ofthis Article. The Board of Directors may elect or appoint such other officers, including one or more Assistant Secretaries and one or more Assistant Treasurers, as it shall deem desirable, such officers to have the authority and perform the duties prescribed, from time to time, by the Board of Directors. Any two or more offices may be held by the same person, except the offices of President and Secretary. - 3 - Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the Board of Directors at the regular annual meeting of the Board of Directors. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. New offices may be created and filled at any meeting ofthe 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 judgment 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 ofthe 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 the signing and execution thereof shall be expressly delegated by the Board of Directors or by these by-laws or by statute to some other officer or agent of the corporation; and in general he or she shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. Section 6. Vice President. In the absence of the President or in event of his or her inability or refusal to act, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President shall perform such other duties as from time to time may be assigned to him or her by the President or by the Board of Directors. Section 7. Treasurer. If required by the Board of Directors, 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 - 4 - 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 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 of Directors. Section 9. Assistant Treasurers and Assistant Secretaries. If required by the Board of Directors, the Assistant Treasurers shall give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Treasurers and Assistant Secretaries, in general, shall perform such duties as shall be assigned to them by the Treasurer or the Secretary or by the President or the Board of Directors. ARTICLE VI COMMITTEES Section 1. Committees of Directors. The Board of Directors, by resolution adopted by a majority of the Directors in office, may designate and appoint one or more committees, each of which shall consist of two or more Directors, which committees, to the extent provided in said resolution, shall have and exercise the authority of the Board of Directors in the management of the corporation, except that no such committee shall have the authority of the Board of Directors in reference to amending, altering or repealing the by-laws; electing, appointing or removing any member of any such committee or any Director or officer of the corporation; amending the articles of incorporation, restating articles of incorporation; adopting a plan of merger or adopting a plan of consolidation with another corporation; authorizing the sale, lease, exchange or mortgage of all or substantially all of the property and assets of the corporation; authorizing the voluntary dissolution of the corporation 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 terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any individual Director, of any responsibility imposed upon it or him or her by law. Section 2. Other Committees. Other committees not having and exercising the authority of the Board of Directors in the management of the corporation may be appointed in such manner as may be designated by a resolution adopted by a majority of the Directors present at a meeting at which a quorum is present. Except as otherwise provided in such resolution, members of each such committee shall be Directors, and the President of the corporation shall appoint the members thereof. Any member thereof may be removed by the person or persons authorized to appoint such member whenever in their judgment the best interests of the corporation shall be served by such removal. Section 3. Term of Office. Each member of a committee shall continue as such until the next annual meeting of the members of the corporation and until his or her successor is - 5 - 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. 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 ofthe committee. Section 7. Rules. Each committee may adopt rules for its own government not inconsistent with these by-laws or with rules adopted by the Board of Directors. ARTICLE VII CONTRACTS, CHECKS, DEPOSITS AND FUNDS 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 determination 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 genera] purposes or for any special purpose of the corporation. - 6 - 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-Iaws may be adopted by a majority of the Directors present at any regular meeting or at any special meeting, if at least two days' written notice is given of intention to alter, amend or repeal or to adopt new by-laws at such meeting. 171585_1 - 7 - [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 .-.~~ ~ C;+z7.;+-- c;o cf~"j' s )0 . -:}laV(UA~;:,j; ~J-,.-~ - ,;; j /' r {Ii /;2.(1"" , ATTACHMENT A {)'(~'iP"--~:-_._...... AVdt./'.:.{ZOl . .U"" (f ~.(P0 .. k~ GROSS REVENUES IV J) ~r I / . If..... ;) & t~A;:;~).~ Any and all cash, credits, property or other consideration of any kind or nature derived from the operation of MCC Iowa's Cable System (as such term is defined in federal law) by MCC Iowa its Affiliates, or any other entity that is a cable operator of the Cable System to provide Cable Services (as such term is defined in federal law), 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 below and encompasses revenues that may develop in the future, whether or not anticipated. If a statutory change in federal law allows the City of Dubuque to receive greater franchise fees than under federal law as of the effective date of this letter, that change will automatically be reflected in this definition beginning as of the effective date of the change in federal law; provided that the City imposes the same 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 MCC Iowa which are imposed directly on any subscriber to MCC Iowa's Cable Service or user by the state, the City of Dubuque, or other governmental unit and which are collected by the MCC Iowa on behalf of said governmental unit. Such fees are not a tax, and such expenses shall not be deducted in determining the amount of the fee due to the Foundation. / .(.-Z) i<J" f~4r{ - /I' tJlf.I , (/ /" [' 6',t ~,~0,',) C~..:-;( ('(". (J r t/ '-+"...... . ' 'c 'J ~fJ" /1 J/ .' ~ ' 'AUf. A ~ . / t') 1'\.0... , L,t...f.,(.~, v" ,{ T." v'" W . P' {CP, ..~ f fiJd',{1 . !jIJpv1J Cf: . (! ~ (}IVi/ld t i' 1) .." gX{:' /~.------"~ ,~~/, .....----- tpA;' ,.t.O 17 {pt:... ../../--- () 'f-...... OC'/ ..>../" () o? /" (.-/ ..../ d~0~: ----- ---" .....-'