Mediacom Cultural Foundation Bd appointments
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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
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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.
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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
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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
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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.
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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-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
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[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
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GROSS REVENUES IV J) ~r I / . If..... ;)
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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.
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