2005 May Council Proceedings
Regular Session, May 2,2005
167
DUBUQUE
CITY COUNCIL
OFFICIAL
PROCEEDINGS
City Council, Regular Session, May 2, 2005
Council met at 6:30 P.M. in the Public Library
Auditorium
Present: Mayor Duggan, Council Members
Buol, Cline, Connors, Markham, Michalski,
Nicholson, City Manager Van Milligen and
Corporation Counsel Lindahl.
Mayor Duggan read the call and stated this is
a regular session called for the purpose of
discussing such matters which may properly
come before the Council.
Invocation was given by Dr. Alan Crandall,
Campus Chaplain of the University of Dubuque.
Mayor Duggan swore in Mayor Pro-Tem Joyce
Connors.
Proclamations: Bike Safety Month (May, 2005)
received by Cindy Temperley of The Finley
Hospital; Mental Health Month (May, 2005)
received by John Curtis of the Mental Health
Association; Nurses' Week (May 1-7, 2005)
received by Mike Johnson; Public Service
Recognition Week (May 2-8, 2005) received by
City Manager Michael Van Milligen.
A presentation of the Main Street Iowa Award
was made to the Council by Dan LoBianco.
CONSENT ITEMS
Minutes and Reports Submitted: Arts and
Cultural Affairs Advisory Commission of 3/22;
City Council of 4/18; Housing Commission of
3/22; Library Board of 2/24 and 3/24, presented
and read. Buol moved that the minutes be
received and filed. Seconded by Nicholson.
Motion carried 7-0.
Proof of publication of City Council
Proceedings of April 4, 2005 (On file in City
Clerk's Office), presented and read. Buol
moved that the proof be received and filed.
Seconded by Nicholson. Motion carried 7-0.
Library Board of Trustees Update from the
Meeting of March 24, 2005, presented and read.
Buol moved that the communication be received
and filed. Seconded by Nicholson. Motion
carried 7-0.
City Council Proceedings of February, 2005,
presented and read. Buol moved that the
proceedings be received and filed and approved
as printed. Seconded by Nicholson. Motion
carried 7-0.
Notice of Claims/Suits: Stephanie Bauer for
vehicle damage; Diane Hoffman for personal
injury; Tara Puccio for personal injury, presented
and read. Buol moved to receive and file the
claims and refer to Legal for investigation.
Seconded by Nicholson. Motion carried 7-0.
Corporation Counsel advising that the
following claims have been referred to Public
Entity Risk Services of Iowa, the agent for the
Iowa Communities Assurance Pool: Diane
Hoffman for personal injury; Tara Puccio for
personal injury, presented and read. Buol moved
that the communications be received and filed
and concurred. Seconded by Nicholson. Motion
carried 7-0.
Corporation Counsel recommending denial of
the claim of Stephanie Bauer for vehicle
damage, presented and read. Buol moved that
the communication be received and filed and
concurred. Seconded by Nicholson. Motion
carried 7-0.
Hillcrest Family Services: Letter of support for
the efforts of Hillcrest Family Services to secure
renewal funding from HUD to continue to
provide transitional housing and supportive
services to homeless families in Dubuque,
presented and read. Buol moved that the
communication be received and filed and
approved. Seconded by Nicholson. Motion
carried 7-0.
Legislative Correspondence: Communication
to area legislators encouraging a no vote on HF
847, a property tax limitation bill, presented and
read. Buol moved that the communication be
received and filed and approved. Seconded by
Nicholson. Motion carried 7-0.
Dubuque Casino Hotel: City Manager
recommending approval of the first amendment
to the Parking Use Agreement between the
Dubuque Casino Hotel, the Dubuque Racing
Association and the City, presented and read.
Buol moved that the communication be received
and filed and approved recommendation.
Seconded by Nicholson. Motion carried 7-0.
Area Residential Care, Inc.: Communication
from Jon Romaine, Executive Director of Area
Residential Care, Inc., requesting that the street
parking in front of their business office at 1170
Roosevelt Street Extension be designated a
two-hour maximum parking zone, presented and
read. Buol moved that the communication be
received and filed and referred to the City
168
Regular Session, May 2, 2005
Manager. Seconded by Nicholson. Motion
carried 7-0.
Operating Engineer's Union - Petition for
Bargaining Unit Amendment: City Manager
recommending approval of the Stipulation of
Bargaining Unit as Amended to include the
classification of Account Clerk, I, presented and
read. Buol moved that the communication be
received and filed and approved
recommendation. Seconded by Nicholson.
Motion carried 7-0.
City of Sageville Annexations: Communication
from John D. Freund, on behalf of the City of
Sageville, forwarding a Notice of Annexation
Applications and Public Hearing on Voluntary
Annexation Requests regarding territory to be
annexed into the City of Sageville, presented
and read. Buol moved that the communication
be received and filed and referred to the City
Manager. Seconded by Nicholson. Motion
carried 7-0.
Sanitary Sewer Replacement Agreement -
1195 Thomas Place: City Manager
recommending approval of an extension of an
agreement with the owner of a single-family
home at 1195 Thomas Place for pu rposes of
installation of a sanitary sewer system,
presented and read. Buol moved that the
communication be received and filed and
approved recommendation. Seconded by
Nicholson. Motion carried 7-0.
Purchase of Property at 514 Lincoln Street:
City Manager recommending approval of the
purchase of property at 514 Lincoln Street as
part of the acquisition program associated with
the Bee Branch Creek Restoration Project,
presented and read. Buol moved that the
communication be received and filed. Seconded
by Nicholson. Motion carried 7-0.
RESOLUTION NO. 178-05
A RESOLUTION APPROVING THE
ACQUISITION OF REAL ESTATE LOCATED
AT 514 LINCOLN AVENUE, IN THE CITY OF
DUBUQUE
Whereas, the City of Dubuque intends to
acquire certain properties located in the area of
the Bee Branch Creek Restoration Project for
stormwater mitigation activities as
recommended in the 2001 HDR "Drainage Basin
Master Plan;" and
Whereas, a purchase agreement has been
finalized with the owner of the first property
scheduled for acquisition.
NOW, THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the City of Dubuque hereby
approves the acquisition of the following legally
described property:
Lot 11 and 11" A" High Street Subdivision in
the City of Dubuque, Iowa according to the
recorded Plat thereof in Dubuque County,
Iowa at the cost of Forty-five thousand dollars
($45,000).
Section 2. That the City of Dubuque be and is
hereby authorized to accept a Quit Claim deed
from the owner, conveying the owner's interest
to the City of Dubuque, Iowa for the herein
described real estate.
Section 3. That the City Clerk be and she is
hereby authorized and directed to cause said
Quit Claim Deed to be recorded in the office of
the Dubuque County Recorder, together with
certified copy of the Resolution.
Section 4. That the City Clerk be and she is
hereby directed to forward a copy of this
Resolution to the Dubuque County Assessor
and the Dubuque County Auditor.
Passed, approved and adopted this 5th day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne Schneider, CMC, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Family Self-Sufficiency (FSS) and
Homeownership Program Coordinators: City
Manager recommending approval of an
application to the US Department of Housing
and Urban Development (HUD) for funds to
renew the current Family Self-Sufficiency
Program Coordinator position and for funding to
contract with Iowa State Extension for services
to promote homeownership opportunities for
Section 8 Program families, presented and read.
Buol moved that the communication be received
and filed and approved recommendation.
Seconded by Nicholson. Motion carried 7-0.
Iowa Department of Natural Resources:
Communication from the Iowa Department of
Natural Resources advising that the City failed
to report two bypasses that occurred on April 4,
2005, presented and read. Buol moved that
the communication be received and filed and
referred to the City Manager. Seconded by
Nicholson. Motion carried 7-0.
City Manager communication regarding the
violation of the notification requirement to the
Iowa Department of Natural Resources on
sewer overflows, presented and read. Buol
moved that the communication be received and
filed. Seconded by Nicholson. Motion carried 7-
O.
Drug Awareness Resistance Education
(DARE) Contract: City Manager recommending
Regular Session, May 2, 2005
169
approval of a Drug Awareness Resistance
Education (DARE) Contract between the City of
Dubuque, the Dubuque Community Schools and
the Holy Family Catholic Schools, presented and
read. Buol moved that the communication be
received and filed and approved
recommendation. Seconded by Nicholson.
Motion carried 7-0.
Memorandum of Understanding (MOU) with
the Iowa Department of Public Health: City
Manager recommending approval of a
Memorandum of Understanding with the Iowa
Department of Public Health for encephalitis
monitoring-related activities, presented and
read. Buol moved that the communication be
received and filed and approved
recommendation. Seconded by Nicholson.
Motion carried 7-0.
Quarterly Investment Report: City Manager
submitting the March 31, 2005 Quarterly
Investment Report, presented and read. Buol
moved that the communication be received and
filed. Seconded by Nicholson. Motion carried 7-
O.
Railroad Real Estate Property Acquisition
Agreement: City Manager recommending
approval of a Railroad Real Estate Property
Acquisition Agreement with the Chicago, Central
and Pacific Railroad Company to acquire
railroad property in the Port of Dubuque,
presented and read. Buol moved that the
communication be received and filed. Seconded
by Nicholson. Motion carried 7-0.
RESOLUTION NO. 179-05
RESOLUTION APPROVING RAILROAD REAL
ESTATE SALE CONTRACT BETWEEN THE
CITY OF DUBUQUE (CITY) AND THE
CHICAGO, CENTRAL AND PACIFIC
RAILROAD COMPANY FOR THE PURPOSE
OF ACQUIRING PROPERTY TO COMPLETE
PUBLIC ROADWAY IMPROVEMENTS
Whereas, the City and the Chicago, Central
and Pacific Railroad Company propose to enter
into a Real Estate Sale Contract; and
Whereas, the City and the Chicago, Central
and Pacific Railroad Company have jointly
prepared a Real Estate Sale Contract which
outlines the terms and conditions for the City's
willful intent to acquire railroad real estate
property; and
Whereas, the City and the Chicago, Central
and Pacific Railroad Company propose to enter
into a Real Estate Sale Contract under which the
City shall have sole property ownership and
thereby granted authorization to complete public
improvements for the Bell Street Extension.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCILOF THE CITY OF
DUBUQUE, IOWA:
Section 1: That the Real Estate Sale Contract
between the City of Dubuque and the Chicago,
Central and Pacific Railroad Company is hereby
approved.
Section 2: That the City Manager be
authorized and directed to execute three (3)
copies of the agreement.
Section 3: That a certified copy of the
resolution be submitted to the Chicago, Central
and Pacific Railroad Company by the City Clerk
of the City of Dubuque, Iowa.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Shot Tower Rehabilitation Project: City
Manager recommending approval of the
selection of Hasbrouck Peterson Zimoch
Sirirattumrong (HPZS) as the consultant for the
Shot Tower Rehabilitation Project, presented
and read. Buol moved that the communication
be received and filed and approved
recommendation. Seconded by Nicholson.
Motion carried 7-0.
Dubuque Heritage Trail Expansion - Iowa 32
(Northwest Arterial): City Manager
recommending approval of the submission of an
application for Federal Recreational Trail
Funding to the Iowa Department of
Transportation for the Dubuque Heritage Trail
Expansion - Iowa 32 (Northwest Arterial)
bike/hike trail project, presented and read.
Buol moved that the communication be received
and filed. Seconded by Nicholson. Motion
carried 7-0.
RESOLUTION NO. 212-05
RESOLUTION APPROVING THE SUBMITTAL
OF AN APPLICATION FOR FEDERAL
RECREATIONAL TRAIL FUNDING TO THE
IOWA DEPARTMENT OF TRANSPORTATION
FOR THE DUBUQUE HERITAGE TRAIL
EXTENSION: IOWA 32 (NORTHWEST
ARTERIAL) BIKE/HIKE TRAIL PROJECT
Whereas, the Iowa Department of
Transportation has announced the availability of
Federal Recreational Trail Funds; and
Whereas, pedestrian and bicycle facilities are
eligible activities for this funding; and
Whereas, design, engineering and
construction costs are eligible for this funding;
and
Whereas, the City has
Comprehensive Plan that
community-wide bike/pedestrian
adopted a
identified a
network that
170
Regular Session, May 2, 2005
includes extension of the Heritage Trail along
Iowa 32 (Northwest Arterial).
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. The Mayor is authorized to sign and
submit this application to the Iowa Department
of Transportation for Federal Recreational Trail
Funds for the Dubuque Heritage Trail Extension:
Iowa 32 (Northwest Arterial) Bike/Hike Trail.
Section 2. That the City Council authorizes the
City Manager to utilize budgeted Capital
Improvement Program funds to provide the
match required by this program.
Section 3. That in the event said application is
approved, the City Council hereby provides its
written assurance that the completed project will
be adequately maintained for its intended public
use for a minimum of twenty (20) years following
the project.
Section 4. That the City of Dubuque agrees to
abide by all local, state and federal requirements
applicable to the proposed budget.
Passed, approved and adopted this 2nd day of
May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Dubuque Drug Task Force: Communication
from David Patton regarding the issue of the
Dubuque Community School Board's decision to
not allow the Dubuque Drug Task Force to
inspect school premises, presented and read.
Buol moved that the communication be received
and filed. Seconded by Nicholson. Motion
carried 7-0.
Vision Iowa Agreement Amendment: City
Manager recommending approval of an
Amendment Agreement regarding the
modification of the completion date of certain
projects previously approved for extension,
presented and read. Buol moved that the
communication be received and filed and
approved recommendation. Seconded by
Nicholson. Motion carried 7-0.
Horseshoe Courts Renovation: City Manager
recommending, at the request of the Horseshoe
Pitchers' Association, that renovation of the
horseshoe courts at Flora Park be completed in
Fiscal Year 2006 prior to an upcoming
horseshoe competition in Dubuque, presented
and read. Buol moved that the communication
be received and filed and approved
recommendation. Seconded by Nicholson.
Motion carried 7-0.
Business Licenses:
RESOLUTION NO. 180-05
Whereas, applications for Beer Permits have
been submitted and filed to this Council for
approval and the same have been examined
and approved: and
Whereas, the premises to be occupied by
such applicants were inspected and found to
comply with the Ordinances of the City and have
filed proper bonds.
NOW, THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the Manager be authorized to cause to be
issued the following named applicants a Beer
Permit.
CLASS "B" BEER (5 - DAY SPECIAL EVENT)
Dubuque Jaycees Dubuque Jaycees+
(Sunday Sale) Main StlTown Clock
Dubuque Jaycees Dubuque Jaycees+
(Sunday Sale) Port of Dubuque Tent A
Dubuque Jaycees Dubuque Jaycees+
(Sunday Sale) Port of Dubuque Tent B
Dubuque Jaycees Dubuque Jaycees+
(Sunday Sale) Port of Dubuque Tent C
CLASS "C" BEER PERMIT
Beecher Beverage Beecher Beverage+
(Sunday Sale) 1691 Asbury Rd
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
RESOLUTION NO. 181-05
Whereas, applications for Liquor Licenses
have been submitted to this Council for approval
and the same have been examined and
approved; and
Whereas, the premises to be occupied by such
applicants were inspected and found to comply
with the State Laws and all City Ordinances
relevant thereto and they have filed proper
bonds.
NOW, THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the Manager be authorized to cause to be
issued the following named applicants a Liquor
License.
CLASS "C" BEER/LIQUOR LICENSE
Patricia Broessel Corner Tap+
(Sunday Sale) 2093 Washington
Kostas, Inc. Charhouse Restr.+
(Sunday Sale) 1575 JFK Rd.
Breezy's Central Tap Big Daddy's Pup
1046 Central Av
Tott's Tap+
3457 Jackson St
Dempsey's Molly's
395 W. 9th St
CLASS "B" WINE
Tott's Tap Inc.
(Sunday Sale)
Clifford Enterprises LLC
Pub + Grub
Regular Session, May 2, 2005
171
Beecher Co. Inc. Beecher Beverage
1691 Asbury Rd
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
ITEMS TO BE SET FOR PUBLIC HEARING
Lindberg Terrace and Eagle Street Sanitary
Sewer Extension Project - Initiate: City Manager
recommending initiation of the Lindberg Terrace
and Eagle Street Sanitary Sewer Extension
Project and that a public hearing be set for June
6, 2005, presented and read. Cline moved that
the communication be received and filed.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 182-05
PRELIMINARY APPROVAL OF
PLANS AND SPECIFICATIONS
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the proposed plans, specifications, form
of contract and estimated cost for the Lindberg
Terrace and Eagle Street Sanitary Sewer
Reconstruction Project, in the estimated amount
of $83,687.25 are hereby approved and ordered
filed in the office of the City Clerk for public
inspection.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 183-05
FIXING DATE OF HEARING
ON PLANS AND SPECIFICATIONS
Whereas, the City Council of the City of
Dubuque, Iowa has given its preliminary
approval on the proposed plans, specifications,
and form of contract and placed same on file in
the office of the City Clerk for public inspection
of the Lindberg Terrace and Eagle Street
Sanitary Sewer Reconstruction Project.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That a public hearing will be held on the 6th
day of June, 2005, at 6:30 p.m. in the Public
Library Auditorium at which time interested
persons may appear and be heard for or against
the proposed plans and specifications, form of
contract and cost of said improvement, and the
City Clerk be and is hereby directed to cause a
notice of time and place of such hearing to be
published in a newspaper having general
circulation in the City of Dubuque, Iowa, which
notice shall be not less than four days nor more
than twenty days prior to the day fixed for its
consideration. At the hearing, any interested
person may appear and file objections to the
proposed plans, specifications, contract, or
estimated cost of the improvement.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 184-05
ORDERING BIDS
NOW THEREFORE, BE IT RESOLVED BY
THE COUNCIL OF THE CITY OF DUBUQUE,
IOWA:
That the Lindberg Terrace and Eagle Street
Sanitary Sewer Reconstruction Project is hereby
ordered to be advertised for bids for
construction.
BE IT FURTHER RESOLVED, that the amount
of the security to accompany each bid shall be in
an amount which shall conform to the provisions
of the Notice to Bidders hereby approved as a
part of the plans and specifications heretofore
adopted.
That the City Clerk is hereby directed to
advertise for bids for the construction of the
improvements herein provided, to be published
in a newspaper having general circulation in the
City of Dubuque, Iowa, which notice shall not be
less than four days nor more than forty-five days
prior to the receipt of said bids at 2:00 p.m. on
the 19th day of May, 2005. Bids shall be opened
and read by the City Clerk at said time and will
be submitted to the Council for final action at
6:30 p.m. on the 6th day of June, 2005.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
Asbury Road Sidewalk Installation Project -
Initiate: City Manager recommending initiation of
the Asbury Road Sidewalk Installation Project
and that a public hearing be set for June 6,
2005, presented and read. Cline moved that the
communication be received and filed. Seconded
by Markham. Motion carried 7-0.
RESOLUTION NO. 185-05
PRELIMINARY APPROVAL OF
PLANS AND SPECIFICATIONS
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
172
Regular Session, May 2, 2005
That the proposed plans, specifications, form
of contract and estimated cost for the Asbury
Road Sidewalk Installation Project, in the
estimated amount of $132,107.58 are hereby
approved and ordered filed in the office of the
City Clerk for public inspection.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 186-05
FIXING DATE OF HEARING
ON PLANS AND SPECIFICATIONS
Whereas, the City Council of the City of
Dubuque, Iowa has given its preliminary
approval on the proposed plans, specifications,
and form of contract and placed same on file in
the office of the City Clerk for public inspection
of the Asbury Road Sidewalk Installation Project.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That a Public Hearing will be held on the 6th
day of June, 2005, at 6:30 p.m. in the Public
Library Auditorium at which time interested
persons may appear and be heard for or against
the proposed plans and specifications, form of
contract and cost of said improvement, and the
City Clerk be and is hereby directed to cause a
notice of time and place of such hearing to be
published in a newspaper having general
circulation in the City of Dubuque, Iowa, which
notice shall be not less than four days nor more
than twenty days prior to the day fixed for its
consideration. At the hearing, any interested
person may appear and file objections to the
proposed plans, specifications, contract, or
estimated cost of the improvement.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne, F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 187-05
RESOLUTION OF NECESSITY
Whereas, proposed plans have been duly
p'repared and approved by the City Council of
the City of Dubuque and are now on file in the
office of City Clerk showing among other things
the plans, specifications, form of contract,
estimated cost and preliminary plat and
schedule showing the amount proposed to be
assessed against each lot and the valuation of
each lot as filed by the City Council, for the
Asbury Road Sidewalk Installation Project.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the City Council deems it advisable and
necessary for the public welfare to make the
herein mentioned improvements, and unless
property owners at the time of the final
consideration of this proposed resolution have
on file with the City Clerk objections to the
Resolution of Necessity, they shall be deemed
to have waived all objections pertaining to the
regularity of the proceeding and the legality of
using the special assessment procedure.
Said improvements shall be constructed and
done in accordance with the plans and
specifications which have been approved by the
City Council and now on file with the City Clerk.
That the cost and expense. of making such
improvement will be assessed partially or totally
against privately owned property lying with the
assessment limits, and in an amount not to
exceed that provided by law, and in proportion to
the special benefits conferred.
The portion of the cost which shall be bome by
the City will be paid from Sales Tax Fund and
special assessment bonds may be issued in
anticipation of deferred payments of
assessments when a contract has been
performed and accepted, and the proceeds
thereof used to pay the contractor.
The above resolution was introduced,
approved and ordered placed on file with the
City Clerk this 2nd day of May, 2005.
Approved and placed on file for final action.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 188-05
FIXING DATE OF HEARIN.G
ON RESOLUTION OF NECESSITY
Whereas, the City Council of the City of
Dubuque, Iowa, has given its preliminary
approval on the proposed plans, specifications
and form of contract and placed same on file in
the office of the City Clerk for public inspection
for the Asbury Road Sidewalk Installation
Project; and
Whereas, the proposed Resolution of
Necessity for said improvement has been
introduced and is now on file in the City Clerk's
office for public inspection.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That on the 6th day of June, 2005, a public
hearing will be held at 6:30 p.m. in the Public
Library Auditorium in the City of Dubuque at
which time the owners of property subject to
assessment for the proposed improvement or
any other person having an interest in the matter
Regular Session, May 2, 2005
173
may appear and be heard for or against the
making of the improvement, the boundaries of
the district, the cost, the assessment against any
lot, or the final adoption of a Resolution of
Necessity and the City Clerk be and is hereby
authorized and directed to cause a notice of time
and place of such hearing to be published in a
newspaper having general circulation in the City
of Dubuque, Iowa, which notice shall be
published once each week for two consecutive
weeks, the first publication of which shall be not
less than ten days prior to the day fixed for its
consideration. Unless property owners at the
time of the final consideration of this proposed
resolution have on file with the City Clerk
objections to the Resolution of Necessity they
shall be deemed to have waived all objections
thereto.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 189-05
RESOLUTION APPROVING PRELIMINARY
SCHEDULE OF ASSESSMENTS
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the attached sheets, Page 1 to Page 1
inclusive, are hereby determined to be the
schedule of proposed assessments for the
Asbury Road Sidewalk Installation Project and
the valuations set out herein are hereby
approved.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 190-05
ORDERING BIDS
NOW THEREFORE, BE IT RESOLVED BY
THE COUNCIL OF THE CITY OF DUBUQUE,
IOWA:
That the Asbury Road Sidewalk Installation
Project is hereby ordered to be advertised for
bids for construction.
BE IT FURTHER RESOLVED, that the amount
of the security to accompany each bid shall be in
an amount which shall conform to the provisions
of the Notice to Bidders hereby approved as a
part of the plans and specifications heretofore
adopted.
That the City Clerk is hereby directed to
advertise for bids for the construction of the
improvements herein provided, to be published
in a newspaper having general circulation in the
City of Dubuque, Iowa, which notice shall not be
less than four days nor more than forty-five days
prior to the receipt of said bids at 2:00 p.m. on
the 26th day of May, 2005. Bids shall be opened
and read by the City Clerk at said time and will
be submitted to the Council for final action at
6:30 p.m. on the 6th day of June, 2005.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
Water Works Park Development (Phase I)
Project - Initiate: City Manager recommending
initiation of the Water Works Park Development
(Phase I) Project and that a public hearing be
set for June 6, 2005, presented and read. Cline
moved that the communication be received and
filed. Seconded by Markham. Motion carried 7-
O.
RESOLUTION NO. 191-05
PRELIMINARY APPROVAL OF
PLANS AND SPECIFICATIONS
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF DUBUQUE, IOWA:
That the proposed plans, specifications, form
of contract and estimated cost for the Water
Works Park Development, Phase I Project, in
the estimated amount of $849,692, are hereby
approved and ordered filed in the office of the
City Clerk, for public inspection.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 192-05
FIXING DATE OF HEARING
ON PLANS AND SPECIFICATIONS
Whereas, the City Council of the City of
Dubuque, Iowa has given its preliminary
approval on the proposed plans, specifications,
and form of contract and placed same on file in
the office of the City Clerk for public inspection
of the Water Works Park Development, Phase I
Project.
NOW, THEREFORE, BE IT RESOLVED, BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, that on the 6th day of June,
2005, a public hearing will be held at 6:30 p.m.
in the Public Library Auditorium, at which time
interested persons may appear and be heard for
or against the proposed plans and
specifications, form of contract and cost of said
improvement, and the City Clerk be and is
hereby directed to cause a notice of time and
place of such hearing to be published in a
174
Regular Session, May 2, 2005
newspaper having general circulation in the City
of Dubuque, Iowa, which notice shall be not less
than four days nor more than twenty days prior
to the day fixed for its consideration. At the
hearing, any interested person may appear and
file objections to the proposed plans,
specifications, contract, or estimated cost of the
improvement.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 193-05
ORDERING BIDS
BE IT RESOLVED BY THE COUNCIL OF
THE CITY OF DUBUQUE, IOWA:
That the Water Works Park Development,
Phase I Project is hereby ordered to be
advertised for bids for construction.
BE IT FURTHER RESOLVED, that the amount
of the security to accompany each bid shall be in
an amount which shall conform to the provisions
of the notice to bidders hereby approved as a
part of the plans and specifications heretofore
adopted.
That the City Clerk is hereby directed to
advertise for bids for the construction of the
improvements herein provided, to be published
in a newspaper having general circulation in the
City of Dubuque, Iowa, which notice shall not be
less than four days nor more than forty-five days
prior to the receipt of said bids at 2:00 p.m. on
the 26th day of May, 2005. Bids shall be
opened and read by the City Clerk at said time
and will be submitted to the Council for final
action at 6:30 p.m. on the 6th day of June, 2005.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
Gateway Landscaping Project - Initiate: City
Manager recommending initiation of the Fifth
Street and Locust Street Gateway Landscaping
Project and that a public hearing be set for June
6, 2005, presented and read. Cline moved that
the communication be received and filed.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 194-05
PRELIMINARY APPROVAL OF
PLANS AND SPECIFICATIONS
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF DUBUQUE, IOWA:
That the proposed plans, specifications, form
of contract and estimated cost for the Gateway
Landscaping Project, in the estimated amount of
$533,749, are hereby approved and ordered
filed in the office of the City Clerk, for public
inspection.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 195-05
FIXING DATE OF HEARING
ON PLANS AND SPECIFICATIONS
Whereas, the City Council of the City of
Dubuque, Iowa has given its preliminary
approval on the proposed plans, specifications,
and form of contract and placed same on file in
the office of the City Clerk for public inspection
of the Gateway Landscaping Project.
NOW, THEREFOREt BE IT RESOLVED, BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, that on the 6th day of June,
2005, a public hearing will be held at 6:30 p.m.
in the Public Library Auditorium, at which time
interested persons may appear and be heard for
or against the proposed plans and
specifications, form of contract and cost of said
improvement, and the City Clerk be and is
hereby directed to cause a notice of time and
place of such hearing to be published in a
newspaper having general circulation in the City
of Dubuque, Iowa, which notice shall be not less
than four days nor more than twenty days prior
to the day fixed for its consideration. At the
hearing, any interested person may appear and
file objections to the proposed plans,
specifications, contract, or estimated cost of the
improvement.
Passed, approved and adopted this 2nd
day of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 196-05
ORDERING BIDS
BE IT RESOLVED BY THE COUNCIL OF
THE CITY OF DUBUQUE, IOWA:
That the Gateway Landscaping Project is
hereby ordered to be advertised for bids for
construction.
BE IT FURTHER RESOLVED, that the amount
of the security to accompany each bid shall be in
an amount which shall conform to the provisions
of the notice to bidders hereby approved as a
part of the plans and specifications heretofore
adopted.
That the City Clerk is hereby directed to
advertise for bids for the construction of the
improvements herein provided, to be published
in a newspaper having general circulation in the
Regular Session, May 2, 2005
175
City of Dubuque, Iowa, which notice shall not be
less than four days nor more than forty-five days
prior to the receipt of said bids at 2:00 p.m. on
the 26th day of May, 2005. Bids shall be
opened and read by the City Clerk at said time
and will be submitted to the Council for final
action at 6:30 p.m. on the 6th day of June, 2005.
Passed, approved and adopted this 2nd day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
Pyatigorsk Park Development Project -
Initiate: City Manager recommending initiation of
the Pyatigorsk Park Development Project and
that a public hearing be set for June 6, 2005,
presented and read. Cline moved that the
communication be received and filed. Seconded
by Markham. Motion carried 7-0.
RESOLUTION NO. 197-05
PRELIMINARY APPROVAL OF
PLANS AND SPECIFICATIONS
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF DUBUQUE, IOWA:
That the proposed plans, specifications, form
of contract and estimated cost for the Pyatigorsk
Park Development Project, in the estimated
amount of $144,691, are hereby approved and
ordered filed in the office of the City Clerk, for
public inspection.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 198-05
FIXING DATE OF HEARING
ON PLANS AND SPECIFICATIONS
WHEREAS, the City Council of the City of
Dubuque, Iowa has given its preliminary
approval on the proposed plans, specifications,
and form of contract and placed same on file in
the office of the City Clerk for public inspection
of the Pyatigorsk Park Development Project.
NOW, THEREFORE, BE IT RESOLVED, BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, that on the 6th day of June,
2005, a public hearing will be held at 6:30 p.m.
in the Public Library Auditorium, at which time
interested persons may appear and be heard for
or against the proposed plans and
specifications, form of contract and cost of said
improvement, and the City Clerk be and is
hereby directed to cause a notice of time and
place of such hearing to be publiShed in a
newspaper having general circulation in the City
of Dubuque, Iowa, which notice shall be not less
than four days nor more than twenty days prior
to the day fixed for its consideration. At the
hearing, any interested person may appear and
file objections to the proposed plans,
specifications, contract, or estimated cost of the
improvement.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 199-05
ORDERING BIDS
BE IT RESOLVED BY THE COUNCIL OF
THE CITY OF DUBUQUE, IOWA:
That the Pyatigorsk Park Development Project
is hereby ordered to be advertised for bids for
construction.
BE IT FURTHER RESOLVED, that the amount
of the security to accompany each bid shall be in
an amount which shall conform to the provisions
of the notice to bidders hereby approved as a
part of the plans and specifications heretofore
adopted.
That the City Clerk is hereby directed to
advertise for bids for the construction of the
Improvements herein provided, to be published
in a newspaper having general circulation in the
City of Dubuque, Iowa, which notice shall not be
less than four days nor more than forty-five days
prior to the receipt of said bids at 2:00 p.m. on
the 26th day of May, 2005. Bids shall be
opened and read by the City Clerk at said time
and will be submitted to the Council for final
action at 6:30 p.m. on the 6th day of June, 2005.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
BOARDS/COMMISSIONS
Applicants are invited to address the Council
regarding their desire to serve on the following
Boards/Commissions:
Civil Service Commission (Mayor Appointment
- One four-year term through 4/6/09 - Term of
Duehr); Applicant: Merle J. Duehr, Jr. No one
spoke.
Mechanical Code Board (Two three-year terms
through 3/15/08 - Terms of Giese and Grothe)
Applicants: David Cleek, Tom W. Giese, David
W. Grothe, Sean O'Malley. David Cleek and
Sean O'Malley spoke requesting consideration
for appointment.
PUBLIC HEARINGS
Regular Session, May 2, 2005
176
Michalski moved that the rules be suspended
to allow anyone present to address the Council.
Seconded by Connors. Motion carried 7-0.
MCC Iowa, LLC (Mediacom) - Cable
Franchise Agreement: Proof of publication on
notice of hearing to consider adoption of a Cable
Franchise Agreement and disposing of an
interest in real property owned by the City to
MCC Iowa, LLC by lease agreement and City
Manager recommending approval, presented
and read.
City Manager Van Milligen gave a
comprehensive overview of the proposed Cable
Franchise Agreement with Mediacom. Scott
Westerman of Mediacom spoke of the positive
future of Mediacom and its commitment to
Dubuque.
An Ordinance 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, presented and read.
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
performance under the Prior Franchise and the
quality of service during the Prior Franchise
term, has identified the future cable-related
needs and interests of the City and its citizens,
has considered the financial, technical and legal
qualifications of Mediacom, and has determined
whether Mediacom's plans for constructing,
operating and maintaining its Cable System are
adequate, in a full public proceeding affording
due process to all parties; and
WHEREAS, the City has relied on Mediacom's
representations and has considered the
information that Mediacom has presented to it;
and
WHEREAS, based on Mediacom's
representations and information, and in
response to its request for renewal, the City
Council has determined that, subject to the
provisions of the Cable Franchise Agreement,
and the terms and conditions set forth herein,
the grant of a new nonexclusive franchise to
Mediacom, to supersede the Prior Franchise, on
the terms and conditions of the Cable Franchise
Agreement and subject to applicable law, is
consistent with the public interest;
NOW, THEREFORE, IN CONSIDERATION
OF THE CITY'S GRANT OF A NEW
FRANCHISE TO MEDIACOM, MEDIACOM'S
PROMISE TO PROVIDE CABLE SERVICE TO
RESIDENTS OF THE CITY PURSUANT TO
AND CONSISTENT WITH THE CABLE
FRANCHISE AGREEMENT, ITS FRANCHISE,
AND THE TERMS AND CONDITIONS SET
FORTH HEREIN; AND OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT
AND THE ADEQUACY OF WHICH IS HEREBY
ACKNOWLEDGED, BE IT ORDAINED AS
FOLLOWS:
Section 1. The Cable Franchise Agreement
attached hereto and incorporated herein is
hereby approved.
Section 2. This Ordinance shall take effect
upon publication as provided by law.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Published officially in the Telegraph Herald
newspaper this 5th day of June, 2005.
Jeanne F. Schneider, City Clerk
1t 6/5
Buol moved that the requirement that a
proposed Ordinance be considered and voted
on for passage at two Council Meetings prior to
the meeting at which it is to be finally passed be
suspended. Seconded by Nicholson. Motion
carried 7-0. Buol moved final consideration and
passage of the Ordinance. Seconded by
Connors. Motion carried 7-0.
An Ordinance Approving Cable Right-of-Way
Ordinance, presented and read.
OFFICIAL PUBLICATION
ORDINANCE NO. 29-05
AN ORDINANCE AMENDING THE CODE OF
ORDINANCES 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.
Regular Session, May 2, 2005
177
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. Legislative Findings
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 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.
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) City. City of Dubuque, Iowa, and any
agency, department, or agent thereof.
(3) City Manager means the person appointed
pursuant to City of Dubuque Code of
Ordinances 9 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 Agreement 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.
178
Regular Session, May 2, 2005
(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.
(14) Public Rights-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 in 47 U.S.C. 9 153(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. 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 Rights; 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 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 a
grantee's franchise agreement as prohibited by
Article I, Section 10, clause 1 of the U.S.
Constitution.
7. Title
This Ordinance is known and may be cited as
the "Dubuque Cable Right-of-Way Ordinance."
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 9 480.3 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
Regular Session, May 2, 2005
179
City Manager's designee. At the option of the
City, such trimming may be done by the City.
(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 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
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Regular Session, May 2, 2005
convert its system in that location to an
underground installation.
(7) A Grantee shall use, with the owner's
permission, 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
conduits or other facilities shall be filed with the
City upon City request.
(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
federa' 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
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 resto~ation 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
Regular Session, May 2, 2005
181
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
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
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.
(8) Detailed, updated maps depicting the
location of all facilities located in public rights-of-
way in the City.
(3) Special Reports
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.
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Regular Session, May 2, 2005
(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 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).
(3) Any failure of the City to insist on timely
performance or compli,mce 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 fr~nchise 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.
(iv) Any mortgage, pledge or lease of
facilities in the public rights-of-way shall be
Regular Session, May 2, 2005
183
subject 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
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 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 finds 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.
(8) 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 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
184
Regular Session, May 2, 2005
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 U.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
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.
(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
Regular Session, May 2, 2005
185
of picture or sound beyond permissible 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 (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
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.
(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.
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Regular Session, May 2, 2005
(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 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.
(8) 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 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.
(8) 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)(8)(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 m13Y 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)(8)(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;
(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
Regular Session, May 2, 2005
187
law governing the issuance of additional
franchises;
(f) 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
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.
(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 ofthe 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 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
188
Regular Session, May 2, 2005
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.
(0) 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
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 U.S.C. ~ 545, and, if so, a demonstration that
the requested modification meets the standards
set forth in 47 U.S.C. ~ 545;
(0) 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 cal?le 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 70n460 Le., Federal Aviation 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.
Regular Session, May 2, 2005
189
(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
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 carry on
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.
(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.
(8) 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
190
Regular Session, May 2, 2005
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.
(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.
(8) 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 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 th~ee (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 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.
(8) 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
Regular Session, May 2, 2005
191
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.
(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;
(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. S 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).
(8) 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 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
192
Regular Session, May 2, 2005
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. S 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 Sess., at 86 (1992).
(B) Refund checks to subscribers shall be
issued promptly, but no later than the later of-
(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.
(0) 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 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) Oisconnection/Oowngrades.
(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).
Regular Session, May 2, 2005
193
(D) If a subscriber fails to pay a monthly
subscriber fee or other fee or charge, a Grantee
may disconnect the subscriber's service;
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.
(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.
(F) In addition, except as prohibited by federal
law, a Grantee shall be subject to penalties,
forfeitures and any other remedies or sanctions
available under federal, state or local law,
including without limitation this Ordinance and a
Grantee's franchise with the City, if it fails to
comply with the standards herein.
(G) Violation of the consumer protection
obligations referred to in this Section 6 shall be
a municipal infraction as defined in Section 1-15
of the City of Dubuque Code of Ordinances and
shall be punishable as provided therein.
(14) Exclusive Contracts and Anticompetitive
Acts Prohibited.
(A) No Grantee shall enter into an exclusive
agreement to serve a subscriber, person or
location unless the Grantee has also offered
cable service under terms not requiring an
exclusive contract.
(8) 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 Regulation
194
Regular Session, May 2, 2005
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 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:
(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 t~ 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:
To the fullest extent permitted by law, the
Grantee shall indemnify and hold harmless the
City from and against all claims, damages,
Regular Session, May 2, 2005
195
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'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 the
Grantee shall be filed with the City within thirty
(30) days of ttle 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
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
196
Regular Session, May 2, 2005
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 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.
(0) Records of installation/reconnection 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
Oubuque 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;
(ii) For transferring the franchise without
approval;
(iii) For failure to comply with requirements
for public, educational, and governmental use of
the system;
(iv) For violation of customer service
standards;
(v) For failure, unless such failure is beyond
the Grantee's control, of the system to perform
in the event of a public emergency;
(vi) For violation of technical standards
established by the FCC;
(vii) For violation of federal, state, or local
privacy requirements;
(viii) For any other violations of this
Ordinance, a franchise agreement, or other
applicable law.
(B) The following procedure shall apply, in
place of the amount specified in Section
12(1)(A)(iv) above, for violation of customer
service standards, in assessing liquidated
damages for customer service standards that
are measured on a quarterly basis:
(i) For the first calendar quarter in which the
Grantee does not meet the prescribed standard
(a "noncompliant quarter"), the Grantee will be
subject to penalties in the amount of $1 ,500.
(ii) For a second consecutive
noncompliant quarter, the Grantee shall be
subject to penalties in the amount of $2,000.
(iii) For each consecutive noncompliant
quarter beyond the second, the Grantee shall be
subject to penalties in the amount of $4,000.
(C) The Grantee shall pay any penalty
assessed in accordance with this Ordinance
within thirty days after receipt of notice from the
City.
(0) 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
Regular Session, May 2, 2005
197
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 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 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
198
Regular Session, May 2, 2005
(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 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.
14. Rights 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
Regular Session, May 2, 2005
199
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.
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 U.S.C. S
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 U.S.C. S 573, to the
extent permitted by applicable law, except that
the following sections of Title II shall not apply:
S 2(1)-2(3) (regarding grant of franchise), S 2(6)
(franchise applications), S 7 (rate regulation), S
8(2) (regarding franchise fees), S 12(1 ) (A)(i) and
-(ii) (certain penalties), S 21 (4) (franchise
termination due to certain conditions), S 13
(transfers).
(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.
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
200
Regular Session, May 2, 2005
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 Obligations.
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. Right-of-Way 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. S 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:
Isl Terrance M. Duggan, Mayor
ATTEST:
Jeanne F.Schneider, City Clerk
APPROVED AS TO FORM:
Barry A. Lindahl
City Attorney
REVIEWED BY:
Michael C. Van Milligen
City Manager
Published officially in the Telegraph Herald
newspaper this 5th day of July, 2005.
Jeanne F. Schneider, City Clerk
1t 7/5
Buol moved that the requirement that a
proposed Ordinance be considered and voted
on for passage at two Council Meetings prior to
the meeting at which it is to be finally passed be
suspended. Seconded by Nicholson. Motion
carried 7-0. Buol moved final consideration and
passage of the Ordinance. Seconded by
Connors. Motion carried 7-0.
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 Mayo~ 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.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Buol moved adoption of the Resolution.
Seconded by Connors. Motion carried 7-0.
Bob Roethig spoke in support of Mediacom
and of the company's commitment to public
access television.
Communication from MCC Iowa, LLC
submitting Franchise Agreement, advising of the
creation of the Cultural Affairs Charitable
Foundation of Dubuque, Inc. and approval of
Lease Agreement (with Draft Form of
Commitment Letter, Articles of Incorporation and
Bylaws), presented and read. Buol moved that
the communication be received and filed.
Seconded by Connors. Motion carried 7-0.
Communication from Charles F. King,
Mediacom Communications Corporation,
expressing gratitude for the opportunity to
continue to serve the community, presented and
read. Buol moved that the communication be
received and filed. Seconded by Connors.
Motion carried 7-0.
Five Flags Renovation Project: Proof of
publication on notice of hearing and City
Manager recommending award of the contract
for the Five Flags Renovation Project to Conlon
Construction Company in the amount of
$1,605,494, presented and read. Cline moved
that the proof and communication be received
and filed. Seconded by Nicholson. Motion
carried 7-0.
Regular Session, May 2, 2005
201
RESOLUTION NO. 201-05
RESOLUTION ADOPTING
PLANS AND SPECIFICATIONS
Whereas, on the 21st day of March, 2005,
plans, specifications, form of contract and
estimated cost were filed with the City Clerk of
Dubuque, Iowa for the Five Flags Center
Renovation Project.
Whereas, notice of hearing on plans,
specifications, form of contract, and estimated
cost was published as required by law.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the said plans, specifications, form of
contract and estimated cost are hereby
approved as the plans, specifications, form of
contract and estimated cost for said
improvements for said project.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
RESOLUTION NO. 202-05
AWARDING CONTRACT
Whereas, sealed proposals have been
submitted by contractors for the Five Flags
Center Renovation Project pursuant to
Resolution No. 109-05, and notice to bidders
published in a newspaper published in the City
of Dubuque, Iowa, on the 25th day of March,
2005.
Whereas, said sealed proposals were opened
and read on the 21st day of April, 2005, and it
has been determined that the bid of Conlon
Construction Company in the amount of
$1,605,494 was the lowest bid for the
furnishings of all labor and materials and
performing the work as provided for in the plans
and specifications.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the contract for the above improvement
be awarded to Conlon Construction Company,
and the Manager be and is hereby directed to
execute a contract on behalf of the City of
Dubuque for the complete performance of the
work.
BE IT FURTHER RESOLVED:
That upon the signing of said contract and the
approval of the contractor's bond, the City
Treasurer is authorized and instructed to return
the bid deposits of the unsuccessful bidders.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Five Flags Bleacher Replacement Project:
Proof of publication on notice of hearing and City
Manager recommending award of the contract
for the Five Flags Bleacher Renovation Project
to Iowa Direct Equipment and Appraisal, L.C. in
the amount of $354,950, presented and read.
Michalski moved that the proof and
communication be received and filed. Seconded
by Nicholson. Motion carried 7-0.
RESOLUTION NO. 203-05
RESOLUTION ADOPTING
PLANS AND SPECIFICATIONS
Whereas, on the 21st day of March 2005,
plans, specifications, form of contract and
estimated cost were filed with the City Clerk of
Dubuque, Iowa for The Five Flags Bleacher
Replacement Project.
Whereas, notice of hearing on plans,
specifications, form. of contract, and estim\ited
cost was published as required by law.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the said plans, specifications, form of
contract and estimated cost are hereby
approved as the plans, specifications, form of
contract and estimated cost for said
improvements for said project.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
RESOLUTION NO. 204-05
AWARDING CONTRACT
Whereas, sealed proposals have been
submitted by contractors for the Five Flags
Bleacher Replacement Project pursuant to
Resolution No. 106-05, and notice to bidders
published in a newspaper published in the City
of Dubuque, Iowa, on the 25th day of March,
2005.
Whereas, said sealed proposals were opened
and read on the 21st day of April 2005, and it
has been determined that the bid of Iowa Direct
Equipment And Appraisal, L.C. in the amount of
$354,950 was the lowest bid for the furnishings
of all labor and materials and performing the
work as provided for in the plans and
specifications.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the contract for the above improvement
be awarded to Iowa Direct Equipment And
Appraisal, L.C., and the Manager be and is
202
Regular Session, May 2, 2005
hereby directed to execute a contract on behalf
of the City of Dubuque for the complete
performance of the work.
BE IT FURTHER RESOLVED:
That upon the signing of said contract and the
approval of the contractor's bond, the City
Treasurer is authorized and instructed to return
the bid deposits of the unsuccessful bidders.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
2005 Asphalt Paving Project: Proof of
publication on notice of hearing and City
Manager recommending award of the contract
for the 2005 Asphalt Paving Project to River City
Paving, a Division of Mathy Construction
Company, in the amount of $1,107,558.26,
presented and read. Cline moved that the proof
and communication be received and filed.
Seconded by Connors. Motion carried 7-0.
RESOLUTION NO. 205-05
RESOLUTION ADOPTING
PLANS AND SPECIFICATIONS
Whereas, on the 30th day of March, 2005,
plans, specifications, form of contract and
estimated cost were filed with the City Clerk of
Dubuque, Iowa for the 2005 Asphalt Paving
Project (Fiscal Year 2006).
Whereas, notice of hearing on plans,
specifications, form of contract, and estimated
cost was published as required by law.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the said plans, specifications, form of
contract and estimated cost are hereby
approved as the plans, specifications, form of
contract and estimated cost for said
improvements for said project.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Connors. Motion carried 7-0.
RESOLUTION NO. 206-05
AWARDING CONTRACT
Whereas, sealed proposals have been
submitted by contractors for the 2005 Asphalt
Paving Project pursuant to Resolution No. 138-
05 and notice to bidders published in a
newspaper published in the City of Dubuque,
Iowa on the 8th day of April, 2005.
Whereas, said sealed proposals were opened
and read on the 21st day of April, 2005, and it
has been determined that the bid of River City
Paving, Division of Mathy Construction
Company, of Kieler, Wisconsin, in the amount of
$1,107,558.26 was the lowest bid for the
furnishings of all labor and materials and
performing the work as provided for in the
construction documents.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the contract for the above improvement
be awarded to River City Paving, Division of
Mathy Construction Company, and the Manager
be and is hereby directed to execute a contract
on behalf of the City of Dubuque for the
complete performance of the work.
BE IT FURTHER RESOLVED:
That upon the signing of said contract and the
approval of the contractor's bond, the City
Treasurer is authorized and instructed to return
the bid deposits of the l,lnsuccessful bidders.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Connors. Motion carried 7-0.
Guardrail Replacement Project: Proof of
publication on notice of hearing and City
Manager recommending award of the contract
for the Guardrail Replacement Project to Pauline
Company, Inc., in the amount of $54,911,
presented and read. Buol moved that the
communication be received and filed.
Seconded by Nicholson. Motion carried 7-0.
RESOLUTION NO. 207-05
RESOLUTION ADOPTING
PLANS AND SPECIFICATIONS
Whereas, on the 30th day of March, 2005,
plans, specifications, form of contract and
estimated cost were filed with the City Clerk of
Dubuque, Iowa for the Guardrail Replacement
Program (Fiscal Year 2006).
Whereas, notice of hearing on plans,
specifications, form of contract, and estimated
cost was published as required by law.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the said plans, specifications, form of
contract and estimated cost are hereby
approved as the plans, specifications, form of
contract and estimated cost for said
improvements for said project.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Regular Session, May 2, 2005
203
RESOLUTION NO. 208-05
AWARDING CONTRACT
Whereas, sealed proposals have been
submitted by contractors for the Guardrail
Replacement Program (Fiscal Year 2005/2006)
pursuant to Resolution No. 141-05 and notice to
bidders published in a newspaper published in
the City of Dubuque, Iowa on the 8th day of
April, 2005.
Whereas, said sealed proposals were opened
and read on the 21st day of April, 2005, and it
has been determined that the bid of the Pauline
Company, Inc. of Waterloo, Iowa, in the amount
of $54,911.00 was the lowest bid for the
furnishings of all labor and materials and
performing the work as provided for in the
construction documents.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the contract for the above improvement
be awarded to the Pauline Company, Inc. and
the Manager be and is hereby directed to
execute a contract on behalf of the City of
Dubuque for the complete performance of the
work.
BE IT FURTHER RESOLVED:
That upon the signing of said contract and the
approval of the contractor's bond, the City
Treasurer is authorized and instructed to return
the bid deposits of the unsuccessful bidders.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Sixth and Seventh Street Reconstruction and
Washington Park Renovation Project: Proof of
publication on notice of hearing and City
Manager recommending award of the contract
for the Sixth and Seventh Street Reconstruction
and Washington Park Renovation Project to
Portzen Construction, Inc., in the amount of
$782,779.76, presented and read. Michalski
moved that the proof and communication be
received and filed. Seconded by Markham.
Motion carried 7-0.
RESOLUTION NO. 209-05
RESOLUTION ADOPTING
PLANS AND SPECIFICATIONS
Whereas, on the 30th day of March, 2005,
plans, specifications, form of contract and
estimated cost were filed with the City Clerk of
Dubuque, Iowa for the 6th & 7th Reconstruction
and Washington Park Renovation Projects.
Whereas, notice of hearing on plans,
specifications, form of contract, and estimated
cost was published as required by law.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the said plans, specifications, form of
contract and estimated cost are hereby
approved as the plans, specifications, form of
contract and estimated cost for said
improvements for said project.
Passed, adopted and approved this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
RESOLUTION NO. 210-05
AWARDING CONTRACT
Whereas, sealed bid proposals have been
submitted by contractors for the 6th and 7th
Street Reconstruction and Washington Park
Renovation Project pursuant to Resolution No.
144-05 and notice to bidders published in a
newspaper published in the City of Dubuque,
Iowa on the 8th day of April, 2005.
Whereas, said sealed proposals were opened
and read on the 21st day of April, 2005, and it
has been determined that the bid of Portzen
Construction, Inc. of Dubuque, Iowa, in the
amount of $782,779.76 was the lowest bid for
the furnishings of all labor and materials and
performing the work as provided for in the
construction documents.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the contract for the above improvement
be awarded to Portzen Construction, Inc. and
the Manager be and is hereby directed to
execute a contract on behalf of the City of
Dubuque for the complete performance of the
work.
BE IT FURTHER RESOLVED:
That upon the signing of said contract and the
approval of the contractor's bond, the City
Treasurer is authorized and instructed to return
the bid deposits of the unsuccessful bidders.
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Markham. Motion carried 7-0.
Fiscal Year 2005 Second Budget Amendment:
Proof of publication on notice of hearing to
consider approval of the Fiscal Year 2005
Second Budget Amendment and City Manager
recommending approval, presented and read.
Buol moved that the proof and communication
be received and filed. Seconded by Nicholson.
Motion carried 7-0.
204
Regular Session, May 2, 2005
RESOLl1TION No. 211-05
A RESOLUTION AMENDING THE CURRENT BUDGET FOR THE F1SCAL YEAR ENDING JUNE lIO, 2005
CAS AMENDeD LAlIT ON 9&20/04 .)
Be It ReIlO_ by lhII Councl of lhII CIlyof UBUQUE
Section 1. Following nolice p.lbllehed
end Ih8 public '-rtng h81d, May 2. 2005 Ih8 ....IT8nt budget (BS pnl\/Ioullly emended) Is emended .. est out
h8r8in end In Ih8 det81 by fund type end edMly 1h818Upports this resolution which __ COIlIideNd el th8t '-ring:
ToI8l Budget ToI8l Budget
BS certified CuINnl 8ft8r CumlnI
or I8IIt emended Amendment Amendment
Reven_ & 0lMr FinancinG S_ ~!mHHH~!j!iH~i;i!;!~!iiiH!l!!!i!~! j!;!ii!!i~!H!1!!j!j!!!!Im!!i!ji!l!1!!ij !1!jmiiiiiljiiliHiiiHi1!lii!i;iii!ii
T... Wvied on Pran.tv 1 15,655,911 0 15.655,911
_: Unc:dIec::tted Pmr-'vT-.L_ V... 2 0 0 0
....C......~T_ 3 15,655,911 0 15,655,911
lloI_ProoertYT_ 4 0 0 0
TlF_ 5 3,390,876 0 3,390,876
Klohor Otv T_ 6 9,809,863 0 9,809,863
LlceIUO a_ 7 2,817,634 70 000 2,687 634
lJM ot-.vond_ 8 12.457,021 98172 12,555 19
I 9 43.674500 1 298,594 44,973,llQod
I~for_" 10 20,324.347' 502.621 20,626.968
s__ H 445000 850 127' 1.295~27
.............. 1 4 767.509 642.21 5 409 727
- 1 36,682,332 -90,000 36,772,332
DIal........... _netOther' SourceI: 1~ 153,576.i25
:'1l':-'. ' . miltllllliljl~!I!lmmm~mmll
Elii>Ond- & 0lIIer FIna_ t-.
Plmk_ ... 151 . --' ...... '1ii,:j15 iiiil
PlmkW_ 16 8.691335547126 9;236461
_ondSoc:l8l_ n 86UI7 21;917 683.S94
c:uo.n ond_ 16 7,743,033 -118,386 7.624,647
l~ondEclonon*:~ 19 6,463,962 1 034 817. 9,498 579
-- 20 4 042,_ 402;724 4,445,il18
0i0Ill_ 21 2,960,162 13.000 2,973,162
.. 22 '51,002,678 4,337872 55.340.-
T....___~ :za 101,749,320 6,571,~90 108,320,510
_TvDo'/F- . ... 24 42213.299 1,203,382 43;416.661
... 25 ~mmHmmm1ij~lmm;~1~m!m! i~i;!imm;l!mj!!lj~;!m~mmm!: ;!~m!m!im!!j;ij!m~!!jilm!jm
_Gcw_a__ 21 143,962,619 7.n4,552 15037,171
T_llul 27 33,426,067 298,545 33,724 61
"'1~_0llI 28 177,368,_ . 8,07'3,097: 165,461,783
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kundor! Ex___ 0llI -27,183,493 -4,701,365 -31,684,858
_Fund-..._1 30 37,550,658 4,701,365 42 252.023
EndinG Fund Balance .111M 10 31 10,367,165 0 10,367,165
fJ.... ','. .P~..2.
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- --. .
, . 0Iy~0ftIc0r
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Markham moved to reinstate the rules limiting
discussion to the Council. Seconded by
Connors. Motion carried 7-0.
ACTION ITEMS
1087 Cedar Cross Road - PUD Amendment
(First Reading 4/18/05):
An Ordinance Amending Appendix A (the
Zoning Ordinance) of the City of Dubuque Code
of Ordinances for the amendment of Ordinance
8-98 which adopted regulations for property
located south of 1095 Cedar Cross Road as a
PUD Planned Unit Development District with a
PC Planned Commercial District Designation
and adopting a revised Conceptual
~d Ma~.oo......'..... ". .
/}--~
~'. .
Development Plan, with conditions, said
Ordinance having been given the first reading on
4/18/05, now presented for further action.
OFFICIAL PUBLICATION
ORDINANCE NO. 30-05
AN ORDINANCE AMENDING APPENDIX A
(THE ZONING ORDINANCE) OF THE CITY OF
DUBUQUE CODE OF ORDINANCES FOR THE
AMENDMENT OF ORDINANCE 8-98 WHICH
ADOPTED REGULATIONS FOR PROPERTY
LOCATED SOUTH OF 1087 CEDAR CROSS
ROAD AS A PUD PLANNED UNIT
DEVELOPMENT DISTRICT WITH A PC
PLANNED COMMERCIAL DISTRICT
DESIGNATION AND ADOPTING A REVISED
CONCEPTUAL DEVELOPMENT PLAN, WITH
CONDITIONS.
Regular Session, May 2, 2005
205
NOW, THEREFORE, BE IT ORDAINED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That Appendix A (The Zoning
Ordinance) of the City of Dubuque Code of
Ordinances and Ordinance 8-98 be amended by
adopting a revised conceptual development
plan, a copy of which is on file with the City of
Dubuque Planning Services Department, for
property legally described , to wit:
Lot 3 of the J. George Subdivision, except the
northeasterly 391 feet thereof, and to the
centerline of the adjoining public right-of-way, all
in the City of Dubuque, Iowa.
Section 2. Pursuant to Iowa Code Section
414.5 (2003) and as an express condition of the
reclassification, the undersigned property
owner(s) agree(s) to the following conditions, all
of which the property owner(s) further agree(s)
are reasonable and imposed to satisfy the public
needs that are caused directly by the zoning
reclassification:
A. Use Reaulations.
The following regulations shall apply to all uses
made of land in the above described PUD
District:
1. Principal permitted uses shall be limited to:
a. Business services [29]
b. General office [14]
c. Indoor recreation [37]
d. Mini-warehousing and storage facility [47]
e. Used car sales lot [38]
f. Public or quasi-public utilities including
substations [47]
2.Accessory uses shall include:
a. Dwelling unit for on-site manager
b. Any use customarily incidental and
subordinate to the principal use it serves.
B. Lot and Bulk Reaulations
Development of land in the PUD District shall be
regulated as follows:
1. All building structures and activities shall be
located in conformance with the attached
conceptual development plan and all final site
development plans shall be approved in
accordance with provisions of the PUD District
regulations of this ordinance and of Section 3-
5.5 of the Zoning Ordinance.
2. The maximum building height shall be twenty-
five (25) feet.
C. Performance Standards
The development and maintenance of uses in
this PUD District shall be established in
conformance with Section 3-5.5 of the Zoning
Ordinance and the following standards:
1. Lighting shall be provided per City standards.
2. Landscaping shall be provided in compliance
with Section 4.4 of the Zoning Ordinance and as
stipulated in the conceptual development plan.
Also stipulated is the requirement for a techny
arborvitae hedge, planted a minimum of five feet
high at planting, five feet on center and 200 feet
in length located in a manner subject to approval
of the adjacent property owners.
3. All utilities, including telephone and cable
television, shall be installed underground.
4. Sidewalks shall be placed four feet behind
the curb parallel to the street on all public street
frontages and constructed in accordance with
City standards.
5. Final site development plans shall be
submitted in accordance with Section 4-4 of the
Zoning Ordinance prior to construction of each
building or structure unless otherwise exempted
by section 4-4.
6. Storm water detention shall be provided
beginning with Phase 1 and be directed toward
the detention basin located in the southwest
corner of the site.
7. Subdivision plats and improvement plans
shall be submitted in accordance with Chapter
42 of the City of Dubuque Code of Ordinances.
The approved conceptual development plan
shall serve as the preliminary plat.
8. Security fence shall be extended along the
east property line to the existing tree line during
Phase 1.
D. Open Space and Recreational Areas
Those areas not designated on the conceptual
development plan for development shall be
maintained as open space, as defined by
Section 8 of the Zoning Ordinance by the
property owner and/or association.
E. Sian Reaulations
The sign regulations shall be in accordance with
the C-2 Neighborhood Shopping Center District
as established in Section 4-3.11 of the Zoning
Ordinance.
F. Transfer of Ownership
Transfer of ownership or lease of property in this
PUD District shall include in the transfer or lease
agreement a provision that the purchaser or
lessee acknowledges awareness of the
conditions authorizing the establishment of the
district.
G. Reclassification of Subiect Property
The City of Dubuque may initiate zoning
reclassification proceedings to the AG
Agricultural District in accordance with Section 6
of the Zoning Ordinance if the property owner(s)
fail(s) to complete or maintain any of the
conditions of this ordinance,
H. Modifications
Any modifications of this Ordinance must be
approved by the City Council in accordance with
zoning reclassification proceedings of Section 6
of the Zoning Ordinance.
I. Recordina
A copy of this ordinance shall be recorded at the
expense of the property owner(s) with the
Dubuque County Recorder as a permanent
record of the conditions accepted as part of this
reclassification approval within thirty (30) days
after the adoption of this ordinance. This
206
Regular Session, May 2, 2005
ordinance shall be binding upon the undersigned
and hislher heirs, successors and assigns.
Section 3. The foregoing amendment has
heretofore been reviewed by the Zoning
Advisory Commission of the City of Dubuque,
Iowa.
Section 4. This foregoing amendment shall
take effect immediately upon publication, as
provided by law.
Passed, approved and adopted this 2nd day of
May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
ACCEPTANCE OF ORDINANCE NO. 30-05
I, Pat Tobin, property owner, having read the
terms and conditions of the foregoing Ordinance
No. 30-05 and being familiar with the conditions
thereof, hereby accept the same and agree to
the conditions required therein.
Dated the 13th day of April 2005.
Is/ Pat Tobin
Published officially in the Telegraph Herald
newspaper this 6th day of May, 2005.
Jeanne F. Schneider, City Clerk
1t 5/6
Buol moved that the requirement that a
proposed Ordinance be considered and voted
on for passage at two Council Meetings prior to
the meeting at which it is to be finally passed be
suspended. Seconded by Nicholson. Motion
carried 7-0. Buol moved final consideration and
passage of the Ordinance. Seconded by
Markham. Motion carried 7-0.
Tobacco Compliance - Civil Penalties for
Tobacco Permit Holders: City Manager
recommending acceptance and approval of
Acknowledge/Settlement Agreements for Kwik
Stop, West Locust Mart, Oky Doky Foods #1,
Jumpers Sports Bar, and Fat Tuesday's and the
assessment of $300 penalties for tobacco
compliance violations, presented and read.
Michalski moved that the communications be
received and filed and penalties approved.
Seconded by Nicholson. Motion carried 7-0.
Eagle Point Bluff Rock Stabilization Project:
City Manager recommending approval of the
selection of Kleinfelder as the consultant for the
Eagle Point Bluff Rock Stabilization Project,
presented and read. Cline moved that the
communication be received and filed and
approved recommendation. Seconded by
Nicholson. Motion carried 7-0.
Michalski questioned why the City is paying for
the study. Corporation Counsel Lindahl clarified
the reasons.
Northend Wrecking, Inc.: Communication from
Roger Kunde, Northend Wrecking, Inc.,
requesting to purchase City-owned property
located adjacent to his property, presented and
read. Buol moved to receive and file the
communication and deny the request.
Seconded by Connors. Motion failed due to the
following vote: Yeas-Buol, Connors, Michalski.
Nays-Cline, Duggan, Markham, Nicholson.
After further discussion, Nicholson moved to
receive and file the communication and refer this
to the City Manager to negotiate purchase and
correction of problems, with "good faith"
negotiations stressed. Seconded by Cline.
Carried by the following vote: Yeas-Cline,
Connors, Duggan, Markham, Michalski,
Nicholson. Nays-Buol.
Dubuque River Rides License Agreement: City
Manager recommending approval of a five-year
license agreement between the City of Dubuque
and Dubuque River Rides, presented and read.
Cline moved that the communication be
received and filed and approved
recommendation. Seconded by Nicholson.
Motion carried 7-0.
Cabela's / America's River Corporation Banner
Request: City Manager recommending approval
of a request from Cabela's / America's River
Corporation to install 38 banners on light poles
on Bell Street as part of the America's River
Festival scheduled from May 27 - 29, 2005,
presented and read. Buol moved that the
communication be received and filed and
approved recommendation. Seconded by
Nicholson. Motion carried 7-0.
Camelot Drive Stop Sign: City Manager
recommending approval of the installation of
stop signs on Sunnyslope Drive at Camelot
Drive and on Hummingbird Drive at Camelot
Drive, requiring vehicles approaching Camelot to
stop, presented and read. Buol moved that the
communication be received and filed. Seconded
by Connors. Motion carried 7-0.
An Ordinance Amending the Code of
Ordinances of the City of Dubuque, Iowa, by
modifying Subsection (b) of Section 32-214
thereof providing for the addition of stop signs
on Sunnyslope Drive at Camelot Drive and
Hummingbird Drive at Camelot Drive, presented
and read.
OFFICIAL PUBLICATION
ORDINANCE NO. 31-05
AN ORDINANCE AMENDING THE CODE OF
ORDINANCES OF THE CITY OF DUBUQUE,
IOWA, BY MODIFYING SUBSECTION (b) OF
SECTION 32-214 THEREOF PROVIDING FOR
THE ADDITION OF STOP SIGNS ON
SUNNYSLOPE DRIVE AT CAMELOT DRIVE
AND HUMMINGBIRD DRIVE AT CAMELOT
DRIVE
Regular Session, May 2, 2005
207
NOW, THEREFORE, BE IT ORDAINED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1.That the Code of Ordinances of the
City of Dubuque, Iowa, be amended by adding
Hummingbird Drive and Sunnyslope Drive to
Subsection (b) of Section 32-214 thereof as
follows:
Sec. 32-214. Stop Intersections.
(b)
* * * *
Northbound and Southbound
Sunnyslope Drive and Camelot Drive
Northbound
Hummingbird Drive and Camelot Drive
Passed, approved and adopted this 2nd day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Published officially in the Telegraph Herald
newspaper this 6th day of May, 2005.
Jeanne F. Schneider, City Clerk
1t 5/6
Buol moved that the requirement that a
proposed Ordinance be considered and voted
on for passage at two Council Meetings prior to
the meeting at which it is to be finally passed be
suspended. Seconded by Connors. Motion
carried 7-0. Buol moved final consideration and
passage of the Ordinance. Seconded by
Nicholson. Motion carried 7-0.
National Institute of Health Resuscitation
Outcomes Consortium: City Manager
recommending approval for the City's paramedic
service to participate in a research project of the
National Institutes of Health on out-of-hospital
resuscitation, presented and read. Cline moved
that the communication be received and filed
and approved recommendation. Seconded by
Connors. Motion carried 7-0.
Great Places Advisory Board: City Manager
advising that Leisure Services Manager Gil
Spence has been appointed to the Great Places
Advisory Board by Governor Tom Vilsack,
presented and read. Cline moved that the
communication be received and filed and
congratulated Gil Spence. Seconded by
Michalski. Motion carried 7-0.
Bowling and Beyond Lease Agreement:
Communication from Arthur F. Gilloon
requesting to address the City Council regarding
the lease agreement between Bowling and
Beyond and the City of Dubuque and City
Manager submitting information on Bowling and
Beyond lease negotiations, presented and read.
Cline moved to receive and file the
communication and referred to the City Manager
to negotiate the lease, urging coordination of the
lease with "use" time. Seconded by Nicholson.
Motion carried 7-0.
COUNCIL MEMBER REPORTS
Buol shared that the annual Downtown
Cleanup held a few weeks ago was a successful
event and thanked the many participants.
At 8:08 P.M. Buol moved to go into Closed
Session re: Pending Litigation and Property
Acquisition - Chapter 21.5(1 )(c)O) 2003 Code of
Iowa and Collective Bargaining Strategy -
Chapter 20.17(3). Seconded by Michalski.
Motion carried 7-0.
At 8:32 P.M. Council reconvened stating that
Staff had been given proper direction.
There being no further business, Buol moved
to adjourn.' Seconded by Michalski. Motion
carried 7-0. The meeting adjourned at 8:33 P.M.
/s/ Jeanne F. Schneider, CMC
City Clerk
1 t 5/11
2005
2005
208
Regular Session, May 16, 2005
DUBUQUE
CITY COUNCIL
OFFICIAL
PROCEEDINGS
City Council, Regular Session, May 16, 2005
Council met at 6:30 P.M. in the Library
Auditorium
Present: Mayor Duggan, Council Members
Buol, Cline, Connors, Markham, Michalski,
Nicholson, City Manager Van Milligen,
Corporation Counsel Lindahl
Mayor Duggan read the call and stated this is
a regular session called for the purpose of
discussing such matters which may properly
come before the Council.
Invocation was given by Eric Johnson,
Deacon, St. John Episcopal Church
Proclamations: Historic Preservation Week
(May 16 - 22, 2005) received by Planning
Services Manager Laura Carstens and Nursing
Home Month (May, 2005) received by Donna
Fransen.
CONSENT ITEMS
Minutes and Reports Submitted: Airport
Commission of 4/25; Arts and Cultural Affairs
Advisory Commission of 4/13 and 4/26; City
Council of 5/2; Community Development
Advisory Commission of 4/6; Five Flags
Commission of 3/21; Historic Preservation
Commission of 4/21; Human Rights Commission
of 4/11; Investment Oversight Advisory
Commission of 4/27; Plumbing Board of 5/10;
Zoning Advisory Commission of 5/4; Zoning
Board of Adjustment of 4/28, presented and
read. Buol moved that the minutes be received
and filed. Seconded by Nicholson. Motion
carried 7-0.
Investment Oversight Advisory Commission
submitting the 44th Quarterly Report, presented
and read. Buol moved that the communication
and report be received and filed. Seconded by
Nicholson. Motion carried 7-0.
Library Board of Trustees Update from
meeting of April 28, 2005, presented and read.
Buol moved that the communication be received
and filed. Seconded by Nicholson. Motion
carried 7-0.
Substance Abuse Services Center third
quarter report for Fiscal Year 2005, presented
and read. Buol moved that the communication
be received and filed. Seconded by Nicholson.
Motion carried 7-0.
City of Dubuque Financial Reports for the
month ending April 30, 2005 (On file in City
Clerk's Office), presented and read. Buol
moved that the communication be received and
filed. Seconded by Nicholson. Motion carried 7-
O.
Notice of Claims/Suits: Robert Butler, Sr. for
property damage, presented and read. Buol
moved that the claim be received and filed and
referred to Legal for investigation. Seconded by
Nicholson. Motion carried 7-0.
Corporation Counsel advising that the
following claims have been referred to Public
Entity Risk Services of Iowa, the agent for the
Iowa Communities Assurance Pool: James and
Debbie Matheos for property damage; Bruce
Rutz for personal injury, presented and read.
Buol moved that the communications be
received and filed and concurred. Seconded by
Nicholson. Motion carried 7-0.
Butler's Hill Second Addition - Final Plat:
Zoning Advisory Commission recommending
approval of the final plat of Butler's Hill, Second
Addition located in Dubuque County as
requested by David Schneider / Dean Butler,
presented and read. Buol moved that the
communication be received and filed.
Seconded by Nicholson. Motion carried 7-0.
RESOLUTION NO. 213-05
RESOLUTION APPROVING THE FINAL PLAT
BUTLER'S HILL, SECOND ADDITION, IN
DUBUQUE COUNTY, IOWA
Whereas, there has been filed with the City
Clerk a Final Plat of Butler's Hill, Second
Addition in Dubuque County, Iowa; and
Whereas, said Final Plat has been examined
by the Zoning Advisory Commission and its
approval endorsed there; and
Whereas, said Final Plat has been examined
by the City Council and they find that it conforms
to the statutes and ordinances relating thereto.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the City Council hereby waives
Article IV, Design and Improvement Standards
of the Subdivision Regulations, except Section
42-19, Blocks and Lots.
Section 2. That Section 42-19(b) of the
Subdivision Regulations is waived to allow Lot 1,
Lot 2 and Lot 3 to have 0 feet of frontage, where
50 feet of lot frontage is required.
Section 3. That the Final Plat Butler's Hill,
Second Addition is hereby approved and the
Mayor and City Clerk are hereby authorized and
Regular Session, May 16, 2005
209
directed to endorse the approval of the City of
Dubuque, Iowa upon said plat of survey.
Passed, approved and adopted this 16th day
of May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Landfill North Subdivision - Final Plat: Zoning
Advisory Commission recommending approval
of the final plat of Lots 1 and 2 Landfill North
Subdivision located on . Highway 20 West as
requested by the Dubuque Metropolitan Area
Solid Waste Agency, presented and read. Buol
moved that the communication be received and
filed. Seconded by Nicholson. Motion carried
7-0.
RESOLUTION NO. 214-05
RESOLUTION APPROVING THE FINAL PLAT
OF LOTS 1 AND 2 LANDFILL NORTH
SUBDIVISION IN DUBUQUE COUNTY, IOWA
Whereas, there has been filed with the City
Clerk a Final Plat of Lots 1 and 2 Landfill North
Subdivision in Dubuque County, Iowa; and
Whereas, said Final Plat has been examined
by the Zoning Advisory Commission and its
approval endorsed there; and
Whereas, said Final Plat has been examined
by the City Council and they find that it conforms
to the statutes and ordinances relating thereto.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the City Council hereby waives
Article IV, Design and Improvement Standards
of the Subdivision Regulations, except Section
42-19, Blocks and Lots.
Section 2. That Section 42-19(b) of the
Subdivision Regulations is waived to allow Lot 1
and Lot 2 to have 0 feet of frontage, where 50
feet of lot frontage is required.
Section 3. That the Final Plat of Lots 1 and 2
Landfill North Subdivision is hereby approved
and the Mayor and City Clerk are hereby
authorized and directed to endorse the approval
of the City of Dubuque, Iowa upon said plat of
survey.
Passed, approved and adopted this 16th day
of May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Landfill West Subdivision - Final Plat: Zoning
Advisory Commission recommending approval
of the final plat of Lots 1 and 2 Landfill West
Subdivision located on Highway 20 West as
requested by the Dubuque Metropolitan Area
Solid Waste Agency, presented and read. Buol
moved that the communication be received and
filed. Seconded by Nicholson. Motion carried
7-0.
RESOLUTION NO. 215-05
RESOLUTION APPROVING THE FINAL PLAT
OF LOTS 1 AND 2 LANDFILL WEST
SUBDIVISION IN DUBUQUE COUNTY, IOWA
Whereas, there has been filed with the City
Clerk a Final Plat of Lots 1 and 2 Landfill West
Subdivision in Dubuque County, Iowa; and
Whereas, said Final Plat has been examined
by the Zoning Advisory Commission and its
approval endorsed there; and
Whereas, said Final Plat has been examined
by the City Council and they find that it conforms
to the statutes and ordinances relating thereto.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. 'That the City Council hereby waives
Article IV, Design and Improvement Standards
of the Subdivision Regulations, except Section
42-19, Blocks and Lots.
Section 2. That Section 42-19(b) of the
Subdivision Regulations is waived to allow Lot 1
to have 0 feet of frontage, where 50 feet of lot
frontage is required.
Section 3. That the Final Plat of Lots 1 and 2
Landfill West Subdivision is hereby approved
and the Mayor and City Clerk are hereby
authorized and directed to endorse the approval
of the City of Dubuque, Iowa upon said plat of
survey.
Passed, approved and adopted this 16th day
of May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Henschel - McNamer Place - Final Plat:
Zoning Advisory Commission recommending
approval of the final plat of Henschel -
McNamer Place, Plat #2 located west of the
Miller Road terminus as requested by Dave
Schneider/Marty McNamer, presented and read.
Buol moved that the communication be received
and filed. Seconded by Nicholson. Motion
carried 7-0.
RESOLUTION NO. 216-05
RESOLUTION APPROVING THE FINAL PLAT
HENSCHEL-MCNAMER PLACE PLAT NO.2,
IN DUBUQUE COUNTY, IOWA
Whereas, there has been filed with the City
Clerk a Final Plat Henschel-McNamer Place No.
2 in Dubuque County, Iowa; and
Whereas, said Final Plat has been examined
by the Zoning Advisory Commission and its
approval endorsed there; and
210
Regular Session, May 16, 2005
Whereas, said Final Plat has been examined
by the City Council and they find that it conforms
to the statutes and ordinances relating thereto.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the City Council hereby waives
Article IV, Design and Improvement Standards
of the Subdivision Regulations, except Section
42-19, Blocks and Lots.
Section 2. That Section 42-19(b) of the
Subdivision Regulations is waived to allow Lot 2
to have 0 feet of frontage, where 50 feet of lot
frontage is required.
Section 3. That the Final Plat Henschel-
McNamer Plat No. 2 is hereby approved and the
Mayor and City Clerk are hereby authorized and
directed to endorse the approval of the City of
Dubuque, Iowa upon said plat of survey.
Passed, approved and adopted this 16th day
of May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Tax Assessment Appeal - Stipulation of
Settlement: Corporation Counsel submitting a
Stipulation of Settlement of a tax assessment
appeal by Charles R. Huntley and Susan K.
Huntley, presented and read. Buol moved that
the communication be received and filed and
approved settlement. Seconded by Nicholson.
Motion carried 7-0.
Tax Assessment Appeal - Stipulation of
Settlement: Corporation Counsel submitting a
Stipulation of Settlement of a tax assessment
appeal by Amy S. Boynton, presented and read.
Buol moved that the communication be received
and filed and approved settlement. Seconded by
Nicholson. Motion carried 7-0.
Hillcrest Family Services: Communication to
the Iowa Department of Human Services in
support of Hillcrest Family Services' application
for PATH funding, presented and read. Buol
moved that the communication be received and
filed and approved letter. Seconded by
Nicholson. Motion carried 7-0.
Legislative Correspondence:
Communication to area legislators
encouraging a "no" vote on HF 847, a property
tax limitation bill that would negatively impact the
available property tax base for cities, presented
and read. Buol moved that the communication
be received and filed and approved. Seconded
by Nicholson. Motion carried 7-0.
Communication to State Senators encouraging
their support of Amendment S-3310 of HF 882,
the Standing Appropriations bill, presented and
read. Buol moved that the communication be
received and filed and approved. Seconded by
Nicholson. Motion carried 7-0.
Communication to area legislators thanking
them for their support in retaining the rights of
cities to form a municipal utility and to
encourage a "no" vote for HF 861, the
telecommunications utility legislation and the
proposed amendment H-1474, presented and
read. Buol moved that the communication be
received and filed and approved. Seconded by
Nicholson. Motion carried 7-0.
Communication to Representatives Pat
Murphy and Thomas Schueller encouraging a
"no" vote for HF 861, the telecommunication
utility legislation and the proposed amendment
H-1474, presented and read. Buol moved that
the communication be received and filed and
approved. Seconded by Nicholson. Motion
carried 7-0.
State Historical Society of Iowa:
Communication from the State Historical Society
of Iowa advising that the Upper Main Street
Historic District has been listed in the National
Register of Historic Places effective April 11,
2005, presented and read. Buol moved that the
communication be received and filed.
Seconded by Nicholson. Motion carried 7-0.
Fiscal Year 2006 Wage Plan and Benefit
Package for Non-Bargaining Unit Employees:
City Manager recommending approval of the
Fiscal Year 2006 Wage Plan and Benefit
Package for Non-Bargaining Unit Employees
effective July 1, 2005, presented and read. Buol
moved that the communication be received and
filed. Seconded by Nicholson. Motion carried
7-0.
RESOLUTION NO. 217-05
APPROVING THE WAGE PLAN AND
BENEFIT PACKAGE FOR NON-BARGAINING
UNIT EMPLOYEES FOR FISCAL YEAR 2006
Whereas, the City Manager has recommended
that the Non-Bargaining Unit Wage Plan for
General Employee classifications and the Non-
assigned classification of Assistant City
Attorney, City Solicitor and Airport Operations
Specialist be increased by 5.4% across-the-
board effective July 1, 2005; and
Whereas, the City Manager has recommended
that the Non-Bargaining Unit Wage Plan for
Non-assigned classifications, with the exception
of Mayor, City Council Members, Assistant City
Attorney, City Solicitor and Airport Operations
Specialist be increased by 3% across-the-board
effective July 1, 2005; and
Whereas, the City Manager has recommended
that, effective July 1, 2005, Non-Bargaining Unit
employees who receive health and prescription
drug insurance will pay 10% of the cost of the
Regular Session, May 16, 2005
211
premiums established for the health and
prescription insurance plan for which the
employee is enrolled (i.e. single plan, single plus
one dependent plan or family plan); and
Whereas, the City Council provides a
compensation package to Non-Bargaining Unit
employees similar to the compensation package
to be received by Bargaining Unit employees;
and
Whereas, the proposed wage increase and
benefit package for Non-Bargaining Unit
employees is consistent with the wage increase
and benefit package to be received by
employees represented by the Teamsters Union
in Fiscal Year 2006.
NOW THEREFORE, BE IT RESOLVED BY THE
CITY COUNCIL OF THE CITY OF DUBUQUE,
IOWA:
Section 1. That the Non-Bargaining Unit
Wage Plan and Benefit Package for General
Employees and Non-assigned classifications is
hereby approved.
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
Aquila - Proposed Rate Increase: Notification
from Aquila of a filing made with the Iowa
Utilities Board (IUB) for an increase in natural
gas rates, presented and read. Buol moved that
the communication be received and filed.
Seconded by Nicholson. Motion carried 7-0.
Claims - Water Main Break: Corporation
Counsel recommending denial of the claims of
Lois Bublitz and Dianne Stonskas for property
damage, presented and read. Buol moved that
the communication be received and filed and
approved denial. Seconded by Nicholson.
Motion carried 7-0.
Heron Pond Fishing Pier Plaque: City Manager
recommending approval of a request from the
Mississippi Walleye Club to place a stone and
brass plaque at the Heron Pond Fishing Pier
listing the organizations that made the pier
possible, presented and read. Buol moved that
the communication be received and filed and
approved request. Seconded by Nicholson.
Motion carried 7-0.
Mediacom - FCC Petition: City Manager
submitting information on the filing of a Reply in
Opposition to Mediacom's FCC Petition for
Special Relief, presented and read. Buol moved
that the communication be received and filed.
Seconded by Nicholson. Motion carried 7-0.
Mediacom: May 4, 2005 Telegraph Herald
article with Mediacom Regional Vice President
for Eastern Iowa and Northern Illinois, Scott
Westerman, advising there will be a rate
increase this year for Dubuque cable
subscribers, presented and read. Buol moved
that the communication be received and filed.
Seconded by Nicholson. Motion carried 7-0.
Department of Health and Human Services:
City Manager advising that the City will be
assisting the U.S. Department of Health and
Human Services Centers for Medicare and
Medicaid with publicizing the availability of
prescription drug coverage for Medicare
recipients, presented and read. Buol moved that
the communication be received and filed.
Seconded by Nicholson. Motion carried 7-0.
Amended and Restated Application for
Voluntary Annexation: Communication from
John D. Freund, on behalf of the City of
Sageville, forwarding an Amended and Restated
Application for Voluntary Annexation and notice
of a public hearing to be held on June 7, 2005,
presented and read. Buol moved that the
communication be received and filed and
referred to the City Manager. Seconded by
Nicholson. Motion carried 7-0.
Capital Improvement Program - Airport: City
Manager recommending approval of the
reallocation of $14,000 from the approved
Corporate Ramp Repair CIP to a Water Main
Extension CIP to extend the water main to the
Airport's Commercial Park, presented and read.
Buol moved that the communication be received
and filed and approved recommendation.
Seconded by Nicholson. Motion carried 7-0.
Residential Parking Permit District Petition:
Petition from citizens requesting a Residential
Parking Permit District in the West
17th/Catherine StreetlWest 16th Street area,
presented and read. Buol moved that the
communication be received and filed and
referred to the City Manager. Seconded by
Nicholson. Motion carried 7-0.
Clarke Drive - Pedestrian Safety: City
Manager recommending support for a proposed
concept from Clarke College to slow down traffic
and provide a safer pedestrian crossing on
Clarke Drive between the Atrium and Kehl
Center, presented and read. Buol moved that
the communication be received and filed and
approved recommendation. Seconded by
Nicholson. Motion carried 7-0.
Liquor License Transfer: Request of Hy-Vee,
Inc. to change the name on their liquor license
for the premise at 3500 Dodge Street from Hy-
212
Regular Session, May 16, 2005
Vee Food Store to Hy-Vee Wine and Spirits,
presented and read. Buol moved that the
communication be received and filed and
approved recommendation. Seconded by
Nicholson. Motion carried 7-0.
Business Licenses:
RESOLUTION NO. 218-05
Whereas, applications for Beer Permits have
been submitted and filed to this Council for
approval and the same have been examined
and approved: and
Whereas, the premises to be occupied by
such applicants were inspected and found to
comply with the Ordinances of the City and have
filed proper bonds.
NOW, THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the Manager be authorized to cause to be
issued the following named applicants a Beer
Permit.
CLASS "B" BEER (5 - DAY SPECIAL EVENT)
Dubuque Jaycees Dubuque Jaycees
Lower Main St
Dubuque Catfish Festival Catfish Festival+
(Sunday Sale) 1850 Hawthorne St
CLASS "B" BEER PERMIT
RYME Dbq Inc. The Pizza Ranch+
(Sunday Sale) 2020 Radford Rd
CLASS "C" BEER PERMIT
Hy-Vee Inc. Hy-Vee Food Store+
(Sunday Sale) 3500 Dodge
Rainbo Oil Co. KeyWest Conoco+
(Sunday Sale) 2150 Twin Valley
Casey's Marketing Comp Casey's General
Store#2420+(Sunday Sale) 2699 Rockdale Rd.
Casey's Marketing Comp Casey's General
Store#2421+(Sunday Sale) 4003 Peru Rd
McCann's Service Inc McCann's Service+
(Sunday Sale) 690 W Locust St
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
RESOLUTION NO. 219-05
Whereas, applications for Liquor Licenses
have been submitted to this Council for approval
and the same have been examined and
approved; and
Whereas, the premises to be occupied by such
applicants were inspected and found to comply
with the State Laws and all City Ordinances
relevant thereto and they have filed proper
bonds.
NOW, THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the Manager be authorized to cause to be
issued the following named applicants a Liquor
License.
CLASS "A"(CLUB) LIQUOR LICENSE
Dubuque Golf & Country Club Dubuque Golf
& Country Club+(Sunday/Outdoor Sale)
800 Randall PI
CLASS "C" BEER/LIQUOR LICENSE
MichaelfTheresa Kalmes Breaktime Bar
& Grill+(Sunday Sale) 1097 Jackson St
DM Sports Bar, Inc Bartinis on Main+
(Sunday Sale) 253 Main St
Catfish Charlies LLC Catfish Charlie's+
(Sunday/Outdoor Sale) 1630 E. 16th St
Easy Street LLC Easy Street+
(Sunday Sale) 431 Rhomberg Av
Beverly Larson Denny's Lux Club+
(Sunday Sale) 3050 Asbury Rd
IBRIC, Inc Fat Tuesday
( 1-day Outdoor Sale) , 1121 University Av
SPECIAL CLASS "C" LIQUOR
Athenian Grill, Inc Athenian Grill+
(Sunday Sale) 1091 University Av
CLASS "B" WINE
Hy-Vee Inc. Hy-Vee Food Store
3500 Dodge St
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Buol moved adoption of the Resolution.
Seconded by Nicholson. Motion carried 7-0.
ITEMS TO BE SET FOR PUBLIC HEARING
Bergfeld Recreation Area Development
Project: City Manager recommending initiation of
the public bidding process for the Bergfeld
Recreation Area Development Project and that a
public hearing be set for June 20, 2005,
presented and read. Michalski moved that the
communication be received and filed. Seconded
by Cline. Motion carried 7-0.
RESOLUTION NO. 220-05
PRELIMINARY APPROVAL OF
PLANS AND SPECIFICATIONS
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF DUBUQUE, IOWA:
That the proposed plans, specifications, form
of contract and estimated cost for the Bergfeld
Recreation Area Development Project, in the
estimated amount of $560,000, are hereby
approved and ordered filed in the office of the
City Clerk, for public inspection.
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Cline. Motion carried 7-0.
Regular Session, May 16, 2005
213
RESOLUTION NO. 221-05
FIXING DATE OF HEARING
ON PLANS AND SPECIFICA nONS
WHEREAS, the City Council of the City of
Dubuque, Iowa has given its preliminary
approval on the proposed plans, specifications,
and form of contract and placed same on file in
the office of the City Clerk for public inspection
of the Bergfeld Recreation Area Development
Project.
NOW, THEREFORE, BE IT RESOLVED, BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, that on the 20th day of June,
2005, a public hearing will be held at 6:30 p.m.
in the Public Library Auditorium, at which time
interested persons may appear and be heard for
or against the proposed plans and
specifications, form of contract and cost of said
improvement, and the City Clerk be and is
hereby directed to cause a notice of time and
place of such hearing to be published in a
newspaper having general circulation in the City
of Dubuque, Iowa, which notice shall be not less
than four days nor more than twenty days prior
to the day fixed for its consideration. At the
hearing, any interested person may appear and
file objections to the proposed plans,
specifications, contract, or estimated cost of the
improvement.
Passed, approved and adopted this 6th day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Michalski moved adoption of the Resolution
and set date of hearing on plans and
specifications for 6/20/05 at a meeting to
commence at 6:30 P.M. in the public library
auditorium and direct the City Clerk to publish
notice in the manner prescribed by law.
Seconded by Cline. Motion carried 7-0.
RESOLUTION NO. 222-05
ORDERING BIDS
BE IT RESOLVED BY THE COUNCIL OF
THE CITY OF DUBUQUE, IOWA:
That the Bergfeld Recreation Area
Development Project is hereby ordered to be
advertised for bids for construction.
BE IT FURTHER RESOLVED, that the amount
of the security to accompany each bid shall be in
an amount which shall conform to the provisions
of the notice to bidders hereby approved as a
part of the plans and specifications heretofore
adopted.
That the City Clerk is hereby directed to
advertise for bids for the construction of the
improvements herein provided, to be published
in a newspaper having general circulation in the
City of Dubuque, Iowa, which notice shall not be
less than four days nor more than forty-five days
prior to the receipt of said bids at 2:00 p.m. on
the 9th day of June, 2005. Bids shall be opened
and read by the City Clerk at said time and will
be submitted to the Council for final action at
6:30 p.m. on the 20th day of June, 2005.
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Cline. Motion carried 7-0.
Dubuque Industrial Center West Third
Addition/Contract B - Paving, Drainage and
Utilities Project: City Manager recommending
initiation of the public bidding process for the
Dubuque Industrial Center West Third
Addition/Contract B - Paving, Drainage and
Utilities Project and that a public hearing on the
plans and specifications be set for June 20,
2005, presented and read. Michalski moved
that the communication be received and filed.
Seconded by Cline. Motion carried 7-0.
RESOLUTION NO. 223-05
PRELIMINARY APPROVAL OF
PLANS AND SPECIFICATIONS
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the proposed plans, specifications, form
of contract and estimated cost for the Dubuque
Industrial Center West 3rd Addition/Contract B -
Paving, Drainage, and Utilities Project, in the
estimated amount $3,171,451.00 are hereby
approved and ordered filed in the office of the
City Clerk for public inspection.
Passed, adopted and approved this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Cline. Motion carried 7-0.
RESOLUTION NO. 224-05
FIXING DATE OF HEARING
ON PLANS AND SPECIFICATIONS
Whereas, the City Council of the City of
Dubuque, Iowa has given its preliminary
approval on the proposed plans, specifications,
and form of contract and placed same on file in
the office of the Dubuque Industrial Center West
3rd Addition/Contract B - Paving, Drainage, and
Utilities Project.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That a public hearing will be held on the 20th
day of June, 2005, at 6:30 p.m. in the Public
Library Auditorium at which time interested
persons may appear and be heard for or against
the proposed plans and specifications, form of
contract and cost of said improvement, and the
City Clerk be and is hereby directed to cause a
214
Regular Session, May 16, 2005
notice of time and place of such hearing to be
published in a newspaper having general
circulation in the City of Dubuque, Iowa, which
notice shall be not less than four days nor more
than twenty days prior to the day fixed for its
consideration. At the hearing, any interested
person may appear and file objections to the
proposed plans, specifications, contract, or
estimated cost of the improvement.
Passed, adopted and approved this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Cline. Motion carried 7-0.
RESOLUTION NO. 225-05
ORDERING BIDS
NOW THEREFORE, BE IT RESOLVED BY
THE COUNCIL OF THE CITY OF DUBUQUE,
IOWA:
That the Dubuque Industrial Center West 3rd
Addition/Contract B - Paving, Drainage, and
Utilities Project is hereby ordered to be
advertised for bids for construction.
BE IT FURTHER RESOLVED that the amount
of the security to accompany each bid shall be in
an amount which shall conform to the provisions
of the Notice to Bidders hereby approved as a
part of the plans and specifications heretofore
adopted.
That the City Clerk is hereby directed to
advertise for bids for the construction of the
improvements herein provided, to be published
in a newspaper having general circulation in the
City of Dubuque, Iowa, which notice shall not be
less than four days nor more than forty-five days
prior to the receipt of said bids at 2:00 p.m. on
the 9th day of June, 2005. Bids shall be opened
and read by the City Clerk at said time and will
be submitted to the Council for final action at
6:30 p.m. on the 20th day of June, 2005.
Passed, adopted and approved this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Cline. Motion carried 7-0.
BOARDS/COMMISSIONS
Appointments to the following Boards /
Commissions:
Civil Service Commission (Mayor Appointment
- One four-year term through 4/6/09 - Term of
Duehr) Applicant: Merle J. Duehr, Jr. Mayor
Duggan appointed Merle J. Duehr, Jr. to a four
year term which will expire April 6, 2009.
Markham moved to approve the appointment.
Seconded by Connors. Motion carried 7-0.
Mechanical Code Board (Two three-year terms
through 3/15/08 - Terms of Giese and Grothe)
Applicants: David Cleek, Tom W. Giese, David
W. Grothe, Sean O'Malley
Vote on the appointments was as follows:
Michalski voted for Giese and Grothe.
Nicholson voted for Giese and Grothe. Buol
voted for Giese and Grothe. Cline voted for
Giese and Grothe. Connors voted for Giese and
Grothe. Duggan voted for Giese and Grothe.
Markham voted for Giese and Grothe.
Therefore, Tom W. Giese and David W. Grothe
were reappointed to the Mechanical Code Board
for terms that will expire 3/15/08.
PUBLIC HEARINGS
Connors moved that the rules be suspended to
allow anyone present to address the Council.
Seconded by MarkhalT!. Motion carried 7-0.
John Gronen/Boyes Auto - Request to
Rezone: Proof of publication on notice of
hearing to consider rezoning property located at
1798 Washington Street from LI Light Industrial
District to OR Office Residential District as
requested by John GronenlBoyes Auto and
Zoning Advisory Commission recommending
approval, presented and read. Buol moved that
the proof and communication be received and
filed. Seconded by Connors. Motion carried 7-
O.
John Gronen, 1766 Plymouth Court, reviewed
the concept of the project stating it would be one
and two bedroom units on the upper floors with
commercial/retail on the first floor. He further
explained that he would be partnering with
Community Housing Initiatives, who have done
many projects of this type that have been well
received in other communities. In response to a
question, he stated he is working with the
Leisure Services Department and Housing and
Community Development Department on the
development of mini-parks in the area of the
project.
Lea Sullivan, 952 Southern, spoke in favor of
the project and the investment that was being
made.
Teresa Caldwell, 1633 Elm Street, spoke
objecting to the project as there was no place for
the children to play and that it was too much in
one area.
Janice Craddieth, 1725 Washington, stated
she was speaking on behalf of her neighbors in
opposition to the plan.
Jerry Cottrell, 623 Garfield Avenue, expressed
concerns about rising crime with the additional
people in the area.
Ron Moxon, Lighthouse Baptist Church - 1690
Elm, was concerned about no place safe for the
children to play.
Regular Session, May 16, 2005
215
Jerry Maro, Dubuque Landlord's Association,
strongly opposed the project as the current
vacancy rate in Dubuque was at 12 percent and
additional low-rent housing was not needed.
Council discussed the various objections,
clarifying funding for the project and voiced
appreciation for Mr. Gronen's other
developments and also for the proposed mixed
neighborhood.
An Ordinance Amending Appendix A (the
Zoning Ordinance) of the City of Dubuque Code
of Ordinances by reclassifying hereinafter
described property located at 1798 Washington
from LI Light Industrial to OR Office Residential
District, presented and read.
OFFICIAL PUBLICATION
ORDINANCE NO. 32-05
AN ORDINANCE AMENDING APPENDIX A
(THE ZONING ORDINANCE) OF THE CITY OF
DUBUQUE CODE OF ORDINANCES BY
RECLASSIFYING HEREINAFTER DESCRI-
BED PROPERTY LOCATED AT 1798
WASHINGTON FROM LI LIGHT INDUSTRIAL
TO OR OFFICE RESIDENTIAL DISTRICT
NOW, THEREFORE, BE IT ORDAINED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That Appendix A (The Zoning
Ordinance) of the City of Dubuque Code of
Ordinances is hereby amended by reclassifying
the hereinafter-described property from LI Light
Industrial District to OR Office Residential
District, to wit:
Lot 102 thru Lot 106, inclusive, East Dubuque
Addition, and to the centerline of the adjoining
public right-of-way, all in the City of Dubuque,
Iowa.
Section 2. The foregoing amendment has
heretofore been reviewed by the Zoning
Advisory Commission of the City of Dubuque,
Iowa.
Section 3. This ordinance shall take effect
immediately upon publication, as provided by
law.
Passed, approved and adopted this 16th day
of May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Published officially in the Telegraph Herald
newspaper this 21st day of May, 2005.
Jeanne F. Schneider, City Clerk
1t 5/21
Buol moved to receive and file the
communication and moved that the requirement
that a proposed Ordinance be considered and
voted on for passage at two Council Meetings
prior to the meeting at which it is to be finally
passed be suspended. Seconded by Connors.
Motion carried 7-0. Buol moved final
consideration and passage of the Ordinance.
Seconded by Nicholson. Motion carried 7-0.
Mayor Duggan turned control of the meeting to
Mayor Pro-Tem Connors due to possible conflict
of interest.
Dubuque Metropolitan Area Solid Waste
Agency: Proof of publication on notice of hearing
to consider rezoning property located on
Highway 20 West from AG Agricultural District to
LI Light Industrial District as requested by
Dubuque Metropolitan Area Solid Waste Agency
and Zoning Advisory Commission
recommending denial, and City Manager
providing information regarding the Dubuque
Metropolitan Area Solid Waste Agency rezoning
application and recommending City Council
approval, and an Ordinance Amending Appendix
A (the Zoning Ordinance) of the City of Dubuque
Code of Ordinances by reclassifying hereinafter
described property located on Highway 20 West
from AG Agricultural District to LI Light Industrial
District, presented and read. Don Vogt, Public
Works Director, spoke on behalf of the
DMASWA, clarifying the need for the rezoning.
Jeff Stiles of the Dubuque Zoning Advisory
Commission spoke stating the Commission had
a problem with the requested rezoning for 47
acres when only seven acres was needed for
the business.
Kim Sanford, 12033 Cousins Road, spoke
objecting to the proposed rezoning which would
allow a frontage road through their property,
stressing that the three property owners on that
road have been in limbo with the knowledge that
their homes will be taken eventually by the City
or State.
Karen Rokusek, 12101 Cousins Road, spoke
of her serious concerns as their homes are
being made an island in an industrial park.
After discussion, Buol moved that this be
considered the first reading of the Ordinance
and directed staff to bring back additional
information regarding why the requested
rezoning included all 47 acres, proposed
screening for the neighbors, impact of the view
from Highway 20, and the location of the
proposed business. Seconded by Nicholson.
Motion carried 6-0.
Mayor Duggan returned and took control of the
meeting.
Triple J Land Company and Marshallese
House of Praise - Request to Rezone: Proof of
publication on notice of hearing to consider
rezoning property located at 2155 Rockdale
Road from R-1 Single-Family Residential District
to PUD Planned Unit Development with a PR
Planned Residential District designation as
requested by Triple J Land Company and
Marshallese House of Praise and Zoning
216
Regular Session, May 16, 2005
Advisory Commission recommending approval,
presented and read.
Pastor Austin Lokeijak spoke requesting
approval of the rezoning.
An Ordinance Amending Appendix A (the
Zoning Ordinance) of the City of Dubuque Code
of Ordinances by reclassifying hereinafter
described property located at 2155 Rockdale
Road from C-1 Neighborhood Commercial
District and OS Office Service District to R-3
Moderate Density Multi-Family Residential
District, presented and read.
OFFICIAL PUBLICATION
ORDINANCE NO. 33-05
AN ORDINANCE AMENDING APPENDIX A
(THE ZONING ORDINANCE) OF THE CITY OF
DUBUQUE CODE OF ORDINANCES BY
RECLASSIFYING HEREINAFTER DESCRI-
BED PROPERTY LOCATED AT 2155
ROCKDALE ROAD FROM C-1
NEIGHBORHOOD COMMERCIAL DISTRICT
AND OS OFFICE SERVICE DISTRICT TO R-3
MODERATE DENSITY MULTI-FAMILY
RESIDENTIAL DISTRICT
NOW, THEREFORE, BE IT ORDAINED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That Appendix A (The Zoning
Ordinance) of the City of Dubuque Code of
Ordinances is hereby amended by reclassifying
the hereinafter-described property from C-1
Neighborhood Commercial District and OS
Office Service District To R-3 Moderate Density
Multi-Family Residential District, to wit:
Lot 1 Nick Weber Place, and to the centerline
of the adjoining public right-of-way, all in the City
of Dubuque, Iowa.
Section 2. The foregoing amendment has
heretofore been reviewed by the Zoning
Advisory Commission of the City of Dubuque,
Iowa.
Section 3. This ordinance shall take effect
immediately upon publication, as provided by
law.
Passed, approved and adopted this 16th day
of May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Published officially in the Telegraph Herald
newspaper this 21 st day of May, 2005.
Jeanne F. Schneider, City Clerk
1t 5/21
Buol moved to receive and file the proof and
communication and moved that the requirement
that a proposed Ordinance be considered and
voted on for passage at two Council Meetings
prior to the meeting at which it is to be finally
passed be suspended. Seconded by Nicholson.
Motion carried 7-0. Buol moved final
consideration and passage of the Ordinance.
Seconded by Nicholson. Motion carried 7-0.
City of DubuqueNincent and Luella McFadden
- Request to Rezone: Proof of publication on
notice of hearing to consider rezoning property
located west of Dubuque Industrial Center and
north and south of the future extension of
Chavenelle Road from AG Agricultural District to
PI Planned Industrial District as requested by
the City of DubuqueNincent and Luella
McFadden and Zoning Advisory Commission
recommending approval, presented and read.
Buol moved that the proof and communication
be received and filed. Seconded by Connors.
Motion carried 7-0.
An Ordinance Amending Appendix A (the
Zoning Ordinance) of the City of Dubuque Code
of Ordinances by reclassifying hereinafter
described property located north and south of
Chavenelle Road from AG Agricultural District to
PUD Planned Unit Development District with a
PI Planned Industrial' District designation arid
adopting a Conceptual Development Plan, with
conditions, presented and read.
OFFICIAL PUBLICATION
ORDINANCE NO. 34-05
AN ORDINANCE AMENDING APPENDIX A
(THE ZONING ORDINANCE) OF THE CITY OF
DUBUQUE CODE OF ORDINANCES BY
RECLASSIFYING HEREINAFTER DESCRI-
BED PROPERTY LOCATED NORTH AND
SOUTH OF CHAVANELLE ROAD FROM AG
AGRICULTURAL DISTRICT TO PUD
PLANNED UNIT DEVELOPMENT DISTRICT
WITH A PI PLANNED INDUSTRIAL DISTRICT
DESIGNATION AND ADOPTING A CONCEP-
TUAL DEVELOPMENT PLAN, WITH
CONDITIONS.
NOW, THEREFORE, BE IT ORDAINED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. Appendix A (the Zoning Ordinance)
of the City of Dubuque Code of Ordinances is
hereby amended by reclassifying the hereinafter
described property from AG District to PUD
Planned Unit Development District with a PI
Planned Industrial designation and adopting a
conceptual development plan, a copy of which is
on file in. the City of Dubuque Planning Services
Department, with conditions, to wit:
The NW X of SW X of Section 29, Township
89 North, Range 2 east of the 5th P.M. except
that part acquired by the city of Dubuque for
right-of-way; and that part of Lot 1-1 of SW X
of SW1/4, Section 29, Township 89 North,
Range 2 East of the 5th P.M., lying northerly of
the railroad right-of-way, except that part
acquired by the City of Dubuque for right-of-
way, all in the City of Dubuque, Iowa.
Section 2. Attached hereto and made a part of
this zoning reclassification approval is a
Conceptual Development Plan marked Exhibit
Regular Session, May 16, 2005
217
A. It is recognized that minor shifts or
modifications to the general plan layout may be
necessary and compatible with the need to
acquire workable street patterns, grades, and
usable building sites. The general plan layout,
including the relationship of land uses to the
general plan framework and the development
requirements shall be used as the
implementation guide.
Section 3. Pursuant to Iowa Code Section
414.5 (2003), and as an express condition of the
reclassification, the undersigned property owner
agree to the following
conditions, all of which the property owner
further agrees are reasonable and imposed to
satisfy the public needs that are caused directly
by the zoning reclassification:
A. Definitions
1) Building Related Features
Building related features are defined as all
constructed items which rise above the grade
surface of the lot. These include:
a) The primary building.
b) All accessory or secondary buildings.
c) All exterior storage areas.
d) Exterior refuse collection areas.
e) Exterior mechanical equipment.
f) Containerized or tank storage of liquids,
fuels, gases and other materials.
2) Vehicle-Related Features
Vehicle-related features are defined as all areas
used for the movement and parking of all
vehicles within the lot. These include:
a) Employee and visitor parking spaces.
b) Driveways from the street right-of-way line
to and from parking spaces.
c) Loading spaces outside of the building.
d) Maneuvering spaces outside of the
building.
e) Parking spaces for company-owned
commercial vehicles.
f) Fire lanes.
g) Railroad tracks.
3) Open Space Features
Open space features are defined as those
exterior areas and developed features of the lot
which include:
a) Landscaped space containing lawn areas
and plantings.
b) Paved, hard-surfaced, pedestrian areas
such as walkways, plazas, entryways and
courtyards.
c) Surface storm water detention areas not
otherwise used for building-related or vehicle-
related purposes.
d) Open recreation areas and recreational
trail.
e) Other non-building and non-vehicular
related space.
B) Use Reaulations.
The following regulations shall apply to all uses
made of land in the above-described PUD
District:
Zone D: General Purpose and Description.
Zone D is intended to provide a location for
heavy industrial uses. Exterior storage is
allowed, provided it is screened from view from
public right-of-way.
1) Principal permitted uses shall be limited to:
a) Railroad and public or quasi-public utilities
-[47].
b) Corporate offices -[14].
c) Mail Order houses -[23].
d) Printing and publishing-[32].
e) Laboratories for research and engineering-
[33].
f) Moving/storage facilities-[33]
g) Wholesale sales/distributor-[29).
h) Freight transfer facilities-[44].
i) Fuel and ice dealers-[33].
j) Cold storagellocker plants-[15].
k) Packing and processing of meat, dairy or
food products, not to include stockyards or
slaughter houses-[33].
I) Compounding, processing and packaging of
chemical products-[33].
m) Manufacture, assembly, repair or storage
of electrical and electronic products,
components or equipment-[33]).
n) Warehousing and storage facilities, not to
include mini-warehouses-[33].
0) Manufacturing, processing, fabrication,
assembling, packaging or other comparable
treatment of goods or materials -[33].
[ ] Parking Group-See Section 4.2 of the
Zoning Ordinance.
2) Conditional uses shall be limited to the
following:
a) Day care center, within a primary
office/industrial building or as an accessory
structure on the same lot. Day care centers are
subject to state and local regulations.
1) Indoor floor area (excluding halls and
bathrooms) must be provided per child in areas
occupied by cribs as per State Code;
2) Indoor floor area (excluding halls and
bathrooms) must be provided per child in areas
not occupied by cribs times the licensed
capacity as per State code;
3) Fenced outdoor recreation space must
be provided per child using the space at a given
time as per State code;
4) Such facility shall provide for the loading
and unloading of children so as not to obstruct
public streets or create traffic or safety hazards;
5) All licenses have been issued or have
been applied for awaiting the outcome of the
Board's decision;
6) No group day care center may be located
within the same structure as any gas station,
bar/tavern, automated gas station or any facility
selling, servicing, repairing or renting vehicles;
218
Regular Session, May 16, 2005
7) The parking group requirements can be
met-[8];
8) The conditional use applicant certifies
that the premises on which the group day care
center will be located complies with, and will for
so long as the group day care center is so
located, continue to comply with all local, state
and federal regulations governing hazardous
substances, hazardous wastes, and hazardous
materials, including, but not limited to Iowa Code
chapter 455B (1991); 42 U.S.C. Section 9601 of
the Federal Comprehensive Environmental
Response Compensation and Liability Act; 40
C.F.R. Section 302.4; and Section 302 of the
Superfund Amendments and Reauthorization
Act of 1986; and
9) If the applicant is subject to the
requirements of Section 302 of the Superfund
Amendments and Reauthorization Act of 1986,
the Emergency Management Director shall
certify whether or not the applicant has
submitted a current inventory of extremely
hazardous substances kept or stored on the
premises. If any such extremely hazardous
substances are kept or stored on the premises,
the applicant shall also post in a conspicuous
place on the premises a notice indicating a
description of the extremely hazardous
substances, and the physical and health
hazards presented by such substances.
3) Accessory uses shall be limited to the
following:
a) Retail outlets within a primary
office/industrial building, selling products
produced on-site and only as accessory to the
principal use.
b) Any use customarily incidental and
subordinate to the principal use it serves.
4) Temporary uses shall be limited to the
following:
Any use listed as a permitted use within the
PUD District of a limited duration as established
in Section 2-5.3 and as defined in Section 8 of
the Zoning Ordinance.
C. Lot and Bulk Reaulations.
Development of land in Zone D shall be
regulated as follows:
1) All building structures and activities shall
be located in conformance with the attached
conceptual development plan and all final site
development plans shall be approved in
accordance with provisions of the PUD District
regulations of this ordinance and of Section 3-
5.5 of the Zoning Ordinance.
2) All buildings related features in Zones D
shall be in accordance with the following bulk
regulations chart:
Minimum Lot Front Yard Side Yard Rear Yard Building
Lot area Frontage Setback Setback Setback Height
In Acres Minimum Minimum Minimum Minimum Maximum
Feet Feet Feet Feet Feet
Zone D 2 acres 100 50 25 50 100
a) Lots smaller than minimum will be
allowed if the parcel is consolidated or combined
with a larger lot. Substations for public and
quasi-public utilities shall be exempt from lot
frontage and lot area requirements.
b) Maximum lot coverage shall be 80
percent. All building and vehicle related features
shall be considered when calculating total land
area coverage, except fire lanes and railroad
tracks.
c) Maximum building height shall be as
stipulated in the bulk regulations chart above,
except the following may exceed the height limit:
cooling towers, condensers, elevator bulkheads,
stacks and other necessary mechanical
equipment and their protective housing.
Heating, ventilating and air conditioning (HVAC)
equipment is limited to 10 feet above height
limitation.
Regular Session, May 16, 2005
219
d) Within required front, side and rear
setbacks, only driveways, fire lanes, railroad
tracks, open space features, and primary and
secondary signage are allowed. Parking lots
may encroach up to 50% into a required front
yard setback.
D. Parkina and Loadina Reaulations
1) All vehicle-related features, except for
railroad tracks, shall be surfaced with either
asphalt or concrete.
2) All parking and loading spaces shall be
delineated on the surfacing material by painted
strips or other permanent means.
3) The number, size and design of parking
spaces shall be governed by applicable
provisions of City of Dubuque Zoning Ordinance
and City standards.
4) The number, size and design and location
of parking spaces designated for persons with
disabilities shall be according to the local, state
or federal requirements in effect at the time of
development.
5) The location and number of private
driveway intersections with public streets shall
be reviewed and approved by the City Engineer.
Access shall generally be limited to internal
streets.
6) No on street maneuvering of delivery
vehicles will be allowed on any street. Lots shall
provide all necessary maneuvering space for
delivery vehicles within the boundaries of the
lots.
7) All loading docks for shipping and receiving
of raw and manufactured goods shall be
designed to provide for the direct movement of
goods between the deliver vehicle and the
interior of the building.
E. Sian Reaulations
1) Applicability of City of Dubuque
Ordinances: The provisions of the City of
Dubuque Zoning Ordinance Section 4-3 Sign
Regulations shall apply unless further regulated
by this section.
2) Off-Premise Signs: Off-premise signs shall
be prohibited.
3) On-Premise Signs: On-premise signs shall
be erected or constructed in accordance with the
following regulations.
a) Allowable content: signs, messages
and graphics shall be limited to the following
contents:
1) Industrial Center signs: limited to
identification of Dubuque Industrial Center West
Entrance signs
Directory signs
2) Company Primary signs: limited to
Identification of uses in Zone D.
Identification of company name
Identification of company products or
services by generic name only
Graphic symbol or logo identified with
the company
3) S,econdary signs: allowable in all
zones
Street address
Directional messages necessary for the
safe and efficient flow of vehicular and
pedestrian traffic on the lot
Identification of visitor entrances to the
building, shipping and receiving docks and other
delivery points
Identification of assigned parking spaces
and parking spaces accessible to persons with
disabilities
Temporary announcements of pending or
new construction
Commemorative messages
b) Schedule of sign regulations: allowable
structural type, size, number and height shall be
limited to the following requirements.
Type of Sign Maximum Size Maximum Number Allowable Maximum
Structure Height*
Tvoe
Industrial Center 200 square feet per sign Six (6) signs Monument 12 feet
Entrance Siems face
Industrial Center 30 square feet per sign Three (3) signs Monument 8 feet
Directory Signs face
Company 10% of building wall sign 2 signs per street Wall- Below eave
Primary Signs is mounted on or 400 frontage per mounted or parapet
total square feet of sign business
area, whichever is less.
150 square feet per sign 1 sign per business Monument 1 0 feet
face restricted to interior
street frontages
only.
Secondary Signs 6 square feet per sign No maximum Wall- Below eave
face number mounted or parapet
Monument 6 feet
220
Regular Session, May 16, 2005
*The height of monument-style signs shall be
measured from average grade to top of sign
structures.
c) Variances: Variances from sign
requirements for size, number and height may
be requested. Such variances shall be reviewed
by the Zoning Board of Adjustment in
accordance with Section 5-3 of the Zoning
Ordinance.
d) Lighting: Signs may be illuminated only
by means of indirect lighting, whereby all light
sources and devices are shielded from view by
opaque or translucent materials, or internally
illuminated by means of a light source
completely enclosed by the sign panel.
e) Motion: No signs may include any
device or means, mechanical, electrical or
natural, which shall cause any motion of the sign
panel or any part thereof. No flashing lights or
changing colors shall be allowed.
F. Exterior Storace Reaulations
Exterior storage shall be in accordance with the
following regulations:
Allowable Allowable Allowable Screening Minimum Maximum
Products Stored Location Materials Opacity Height of
ScreeninQ
Zone D Raw or finished Rear or Similar to building color 50% 12 feet
aoods; eauioment side yards
1) Exterior storage of materials, which could
be blown into the air or strewn about by the
wind, shall be prohibited.
2) Exterior storage. where allowed, shall
not encroach into a front yard. A front yard may
exceed the required front yard setback.
3) The ground area coverage of exterior
storage areas shall be the area contained inside
the required screening. This area shall be
considered to be a building-related feature for
purposes of calculating total land area coverage.
4) Exterior storage (where allowed) must
be screened from view from adjacent public
right-of-way.
5) The screening height shall be
measured from the ground level outside the line
of the screen. Screens built on sloping grades
shall be stepped so that their top line shall be
horizontal.
6) Required screening is intended to
buffer surrounding property from the negative
visual impact created by the storage of raw or
finished goods, materials and equipment that
can adversely impact the value of adjacent
property.
7) The City Planner may grant a waiver
for screening to exceed the maximum height
allowed, when topography or height of individual
finished products or equipment could make it
impossible to completely screen a storage area
from every vantage point. The City Planner may
not grant waiver in maximum screening height
for raw materials or stacked goods.
8) All exterior entrances to a screened
storage area shall be provided with a gate or
door of similar design to that of the screen.
9) Long-term storage of products or
materials in semi-trailers or shipping containers
is prohibited.
Regular Session, May 16, 2005
221
G. Exterior Trash Collection Area Reauirements
1) Exterior trash collection areas shall include
collection bins, dumpsters, and similar waste
receptacles for the short-term storage and
collection of trash. Trash shall include garbage,
scrap, recyclables, debris and similar materials.
2) The storage of trash shall be limited to that
produced by the principal permitted use and
accessory uses of the lot. Exterior storage of
trash, which could be blown into the air or
strewn about by the wind, shall be prohibited.
3) The ground area coverage of exterior trash
collection areas shall be the area contained
inside the required screening. This area shall
be considered a building-related feature for
purposes of calculating total land area
coverages.
4) Exterior trash collection areas shall be
located in rear or side yards only. Exterior trash
collection areas shall not encroach into a front
yard. A front yard may exceed the required front
yard setback.
5) All exterior trash collection areas and the
materials contained therein shall be screened
from view from the adjacent public right-of-way.
6) The screening shall be a completely
opaque fence, wall or other feature not
exceeding a height of 10 feet measured from the
ground level outside the line of the screen.
Screens built on sloping grades shall be stepped
so that their top line shall be horizontal.
7) Exposed materials used to construct the
opaque screen shall be similar in appearance to
materials used for exterior building walls. All
exterior entrances to a screened trash area shall
be provided with a gate or door of similar design
to that of the screen.
8) If a 10-foot high screen fails to shield the
exterior trash collection area from view from the
adjacent public right-of-way, evergreen plantings
may be required in addition to the screening.
Evergreen plant materials shall be selected and
designed so that they will screen the area from
the adjacent public right-of-way within five (5)
years.
H. Landscapina Reaulations
The following Landscape Regulations shall
apply to each lot:
1) Plant Materials: The open space area of
each lot shall be planted with permanent lawn
and ground covers, shrubs and trees. It is the
intent of these regulations that the development
of required open spaces shall reflect a high
quality of environmental design.
2) Landscaping: The following is the minimum
requirement of trees and shrubs, by number and
size, and the type of ground cover required.
Street trees planted in public street right-of-way
shall not be counted toward fulfillment of the
minimum site requirements set forth below.
Plant species to be used for landscaping shall
be in accordance with the City of Dubuque street
tree policy. Existing trees and shrubs to be
retained on site may be counted toward
fulfillment of the landscaping requirements.
a) Minimum tree planting requirements for
any new development in the Dubuque Industrial
Center West shall be one (1) tree of the
following size per 1 ,600 square feet of required
open space :
40% minimum: 2-2 1/2" caliper diameter
deciduous and/or 8-foot height or greater
evergreen.
Balance: 1 Y:z - 2" caliper diameter
deciduous and/or 6-foot height evergreen.
b) Minimum shrub requirements at the time of
planting for any development in the PUD District,
shall be 6 shrubs, or 1 shrub per 1,000 square
feet of required open space, whichever is
greater. Shrubs shall be a minimum of 18"
height or minimum of one (1) gallon potted.
3) Landscape berms and/or plantings shall be
required as screening for parking areas adjacent
to public streets and shall be a minimum of three
(3) feet in height and can utilize natural grade
changes to achieve the required 50% opacity
landscaping screen. Parking lot screening is in
addition to required landscaping of open space
areas.
4) Trees shall be provided in all parking lot
islands, which are of sufficient size to ensure the
growth and survival of the trees. Trees planted
in parking lot islands may be counted toward the
minimum tree planting requirements.
5) The developer of any lot fronting Seippel
Road and/or Chavanelle Road shall participate
in the planting trees compatible in species and
spacing with tree plantings, which have
previously been completed by the City along
said streets.
6) The installation of required planting materials
may be phased in direct proportion to the
phasing of building construction. Required
landscaping shall be installed by the date the
Building Services Department issues an
occupancy certificate, or if winter weather
prevents planting, within six months of being
issued an occupancy certificate.
7) To reduce erosion, all disturbed open space
areas shall have ground cover of grass or native
vegetation, which is installed as sod, or seeded,
fertilized and mulched.
8) The lot owner is required to replant any and
all plant materials, which have died due to any
cause during the effective period of this PUD
Ordinance.
9) A detailed landscape plan shall be required
as part of submittal for final site development
plan approval.
10) The area between the public street and the
right-of-way line shall be planted with grass and
maintained by the lot owner.
11) Industrial Center landscaping: Common
areas and streetscapes of the PUD District shall
222
Regular Session, May 16, 2005
be in accordance with the landscape plan, a
copy of which is attached and made a part of
this PUD ordinance.
I. Performance Standards.
The development and maintenance of uses in
this PUD District shall be established in
conformance with Section 3-5.5 of the Zoning
Ordinance and the following standards:
1) Site Lighting: exterior illumination of site
features and location and design of site lighting
shall be in accordance with the following
requirements:
a) Exterior Illumination of site features shall
be limited to the illumination of the following:
Parking areas, driveways and loading
facilities
Pedestrian walkway surfaces and
entrances to building
Screened storage areas
Building exterior
b) Location and design of site lighting shall be
in accordance with the following requirements:
All exterior lighting shall be designed,
installed and maintained so as not to cause
glare or to shine in adjacent lots and streets.
No light source shall provide illumination
onto adjacent lots, buildings or streets in excess
of 1.0-foot candle.
All exterior lighting luminaries shall be
designed and installed to shield light from the
luminaire at angles above 72 degrees from
vertical.
Fixtures mounted on a building shall not be
positioned higher than the roofline of the
building.
Wooden utility type poles are acceptable
only for temporary use during construction.
All electrical service lines to posts and
fixtures shall be underground and concealed
inside the posts.
2) Utility Locations: Service lines and
mechanical equipment for utilities shall be
located in accordance with the following
requirements.
a) Service Lines: All electrical, telephone
cable and other similar utility lines serving the
building and other site features shall be located
underground.
b) Mechanical Equipment: All ground-
mounted electrical transformers, switching gear,
relay boxes, meters, air conditioning units, heat
pumps and other similar mechanical equipment
shall be screened from view. Screening may
consist of plantings or masonry walls. Plantings
shall achieve 50% opacity after three (3)
growing seasons and a masonry wall shall
appear to be an integral part of the building's
overall architectural design.
3) Site Plans: Final site development plans
shall be submitted in accordance with Section 4-
4 of the Zoning Ordinance prior to construction
of each building and vehicle-related feature
unless otherwise exempted by Section 4-4.
4) Storm Water Conveyance: The
developer of each lot shall be responsible for
providing surface or subsurface conveyance(s)
of storm water from the lot to existing storm
sewers or to flow line of open drainage ways
outside the lot in a means that is satisfactory to
the Public Works Department of the City of
Dubuque. Other applicable regulations enforced
by the City of Dubuque relative to storm water
management and drainage shall apply to
properties in the PUD District.
5) Platting: The conceptual development
plan shall serve as the preliminary plat for this
PUD District. Subdivision plats and
improvement plans shall be submitted in
accordance with Chapter 42, Subdivision
Regulations, of the City of Dubuque Code of
Ordinances.
6) Noises: Noises generated within the
PUD District shall be regulated by Chapter 33,
Article IV Noises, of the City of Dubuque Code
of Ordinances.
7) Street Lighting: Streetlights shall be
installed in accordance with City of Dubuque
standards.
8) Flood Plain Regulations: The area of the
PUD District that lies within the flood plain of
Catfish Creek shall be subject to the regulations
of Section 3-5.3 of the Zoning Ordinance.
9) Phased construction of Buildings and
Parking Spaces: The construction of off-street
parking spaces may be phased in proportion to
the percentage of total building floor area
constructed at anyone time. Ground area set
aside for future parking, loading spaces or
driveways or for parking provided in excess of
the minimum required number of parking spaces
shall not reduce the minimum required area for
open space.
10) Other Codes and Regulations: These
regulations do not relieve an owner from other
applicable City, County, State and Federal
codes, regulations, laws and other controls
relative to the planning, construction, operation
and management of property in the PUD District.
J.Open Space and Recreational Areas
Those areas not designated on the conceptual
development plan as .open" shall be maintained
as open space, as defined by Section 8 of the
Zoning Ordinance by the property owner and/or
association. The recreational trail shall be
maintained by the property owner and/or
association.
K. Transfer of Ownership
Transfer of ownership or lease of property in this
PUD District shall include in the transfer or lease
agreement a provision that the purchaser or
lessee acknowledges awareness of the
conditions authorizing the establishment of the
district.
Regular Session, May 16, 2005
223
L. Modifications.
Any modifications of this Ordinance must be
approved by the City Council in accordance with
zoning reclassification proceedings of Section 6
of the Zoning Ordinance.
M. Recordina.
A copy of this ordinance shall be recorded at the
expense of the property owner(s) with the
Dubuque County Recorder as a permanent
record of the conditions accepted as part of this
reclassification approval within ten (10) days
after the adoption of this ordinance. This
ordinance shall be binding upon the undersigned
and his/her heirs, successors and assigns.
Section 4. The foregoing amendment has
heretofore been reviewed by the Zoning
Advisory Commission of the City of Dubuque,
Iowa.
Section 5. The foregoing amendment shall
take effect upon publication, as provided by law.
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
ACCEPTANCE OF ORDINANCE NO. 34- 05
We, Vincent and Luella McFadden, having
read the terms and conditions of the foregoing
Ordinance No. 34-05 and being familiar with the
conditions thereof, hereby accept the same and
agree to the conditions required therein.
Dated in Dubuque, Iowa this 31 st day of May,
2005.
By: /s/ Vincent McFadden
By: /s/ Luella McFadden
Published officially in the Telegraph Herald
newspaper this 26th day of August, 2005.
Jeanne F. Schneider, CMC, City Clerk
1t 8/26
Buol moved that the requirement that a
proposed Ordinance be considered and voted
on for passage at two Council Meetings prior to
the meeting at which it is to be finally passed be
suspended. Seconded by Connors. Motion
carried 7-0. Markham moved final consideration
and passage of the Ordinance. Seconded by
Michalski. Motion carried 7-0.
Don and Tanya Bycroft - Request to Rezone:
Proof of publication on notice of hearing to
consider rezoning property located at 2025
Radford Road from R-1 Single-Family
Residential District to OC Office Commercial
District as requested by Don and Tanya Bycroft
and Zoning Advisory Commission
recommending approval, presented and read.
Buol moved that the proof and communication
be received and filed. Seconded by Nicholson.
Motion carried 7-0.
Don Bycroft spoke in support of the proposed
rezoning.
An Ordinance Amending Appendix A (the
Zoning Ordinance) of the City of Dubuque Code
of Ordinances by reclassifying hereinafter
described property located at 2025 Radford
Road from R-1 Single-Family Residential District
to OC Office Commercial District, presented and
read.
OFFICIAL PUBLICATION
ORDINANCE NO. 35-05
AN ORDINANCE AMENDING APPENDIX A
(THE ZONING ORDINANCE) OF THE CITY OF
bUBUQUE CODE OF ORDINANCES BY
RECLASSIFYING HEREINAFTER DESCRI-
BED PROPERTY LOCATED AT 2025
RADFORD ROAD FROM R-1 SINGLE-FAMILY
RESIDENTIAL DISTRICT TO OC OFFICE
COMMERCIAL DISTRICT
NOW, THEREFORE, BE IT ORDAINED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That Appendix A (The Zoning
Ordinance) 'of the City of Dubuque Code of
Ordinances is hereby amended by reclassifying
the hereinafter-described property from R-1
Single-Family Residential District to OC Office
Commercial District, to wit:
Lot 1 of Lot 1 of Siegert Farms No.1, and to
the centerline of the adjoining public right-of-
way, all in the City of Dubuque, Iowa.
Section 2. The foregoing amendment has
heretofore been reviewed by the Zoning
Advisory Commission of the City of Dubuque,
Iowa.
Section 3. This ordinance shall take effect
immediately upon publication, as provided by
law.
Passed, approved and adopted this 16th day
of May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Published officially in the Telegraph Herald
newspaper this 23rd day of May, 2005.
Jeanne F. Schneider, City Clerk
1 t 5/23
Buol moved that the requirement that a
proposed Ordinance be considered and voted
on for passage at two Council Meetings prior to
the meeting at which it is to be finally passed be
suspended. Seconded by Nicholson. Motion
carried 7-0. Buol moved final consideration and
passage of the Ordinance. Seconded by
Nicholson. Motion carried 7-0.
Mullen Road Sanitary Sewer Extension -
Award: Proofs of publication on notice of hearing
on plans and specifications and notice to bidders
on the receipt of bids, and City Manager
recommending award of the contract for the
Mullen Road Sanitary Sewer Extension Project
to Drew Cook & Sons Excavating, Inc., in the
amount of $49,982.85, presented and read.
Cline moved that the proofs and communication
224
Regular Session, May 16, 2005
be received and filed. Seconded by Connors.
Motion carried 7-0.
RESOLUTION NO. 226-05
RESOLUTION ADOPTING
PLANS AND SPECIFICATIONS
Whereas, on the 13th day of April, 2005,
plans, specifications, form of contract and
estimated cost were filed with the City Clerk of
Dubuque, Iowa for the Mullen Road Sanitary
Sewer Reconstruction Project, from Asbury
Road to Hillcrest Road.
Whereas, notice of hearing on plans,
specifications, form of contract, and estimated
cost was published as required by law.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the said plans, specifications, form of
contract and estimated cost are hereby
approved as the plans, specifications, form of
contract and estimated cost for said
improvements for said project.
Passed, adopted and approved this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Connors. Motion carried 7-0.
RESOLUTION NO. 227-05
AWARDING CONTRACT
Whereas, sealed bid proposals have been
submitted by contractors for the Mullen Road
Sanitary Sewer Reconstruction Project, from
Asbury Road to Hillcrest Road, pursuant to
Resolution No. 174-05 and notice to bidders
published in a newspaper published in the City
of Dubuque, Iowa on the 22nd day of April,
2005.
Whereas, said sealed proposals were opened
and read on the 5th day of May, 2005, and it has
been determined that the bid of Drew Cook &
Sons Excavating, in the amount of $49,982.85
was the lowest bid for the furnishings of all labor
and materials and performing the work as
provided for in the construction documents.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the contract for the above improvement
be awarded to Drew Cook & Sons Excavating
and the Manager be and is hereby directed to
execute a contract on behalf of the City of
Dubuque for the complete performance of the
work.
BE IT FURTHER RESOLVED:
That upon the signing of said contract and the
approval of the contractor's bond, the City
Treasurer is authorized and instructed to return
the bid deposits of the unsuccessful bidders.
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Connors. Motion carried 7-0.
Stafford Street Sanitary Sewer Reconstruction
Project - Award: Proofs of publication on notice
of hearing on plans and specifications and
notice to bidders on the receipt of bids, and City
Manager recommending award of the contract
for the Stafford Street Sanitary Sewer
Reconstruction Project to Fondell Excavating,
Inc., in the amount of $19,146.25, presented and
read. Michalski moved that the proofs and
communication be received and filed.
Seconded by Cline. Motion carried 7-0.
RESOLUTION NO. 228-05
RESOLUTION ADOPTING
PLANS AND SPECIFICATIONS
Whereas, on the 13th day of April, 2005,
plans, specifications, form of contract and
estimated cost were filed with the City Clerk of
Dubuque, Iowa for the Stafford Street Sanitary
Sewer Reconstruction Project, from High Bluff to
Lincoln Avenue.
Whereas, notice of hearing on plans,
specifications, form of contract, and estimated
cost was published as required by law.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the said plans, specifications, form of
contract and estimated cost are hereby
approved as the plans, specifications, form of
contract and estimated cost for said
improvements for said project.
Passed, adopted and approved this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Cline. Motion carried 7-0.
RESOLUTION NO. 229-05
AWARDING CONTRACT
Whereas, sealed bid proposals have been
submitted by contractors for the Stafford Street
Sanitary Sewer Reconstruction Project, from
High Bluff to Lincoln Avenue, pursuant to
Resolution No. 171-05 and notice to bidders
published in a newspaper published in the City
of Dubuque, Iowa on the 22nd day of April,
2005.
Whereas, said sealed proposals were opened
and read on the 5th day of May, 2005, and it has
been determined that the bid of Fondell
Excavating, Inc. of Dubuque, Iowa, in the
amount of $19,146.25 was the lowest bid for the
furnishing of all labor and materials and
Regular Session, May 16, 2005
225
performing the work as provided for in the
construction documents.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the contract for the above improvement
be awarded to Fondell Excavating, Inc. and the
Manager be and is hereby directed to execute a
contract on behalf of the City of Dubuque for the
complete performance of the work.
BE IT FURTHER RESOLVED:
That upon the signing of said contract and the
approval of the contractor's bond, the City
Treasurer is authorized and instructed to return
the bid deposits of the unsuccessful bidders.
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Michalski moved adoption of the Resolution.
Seconded by Cline. Motion carried 7-0.
Pennsylvania I Radford Road Sidewalk
Installation Project - Award: Proofs of
publication on notice of hearing on plans and
specifications and notice to bidders on the
receipt of bids, and City Manager recommending
award of the contract for the Pennsylvania I
Radford Road Sidewalk Installation Project to
Skyline Trucking and Storage, Inc. in the amount
of $75,270.55, presented and read. Cline moved
that the proofs and communication be received
and filed. Seconded by Connors. Motion carried
7-0.
RESOLUTION NO. 230-05
RESOLUTION ADOPTING
PLANS AND SPECIFICATIONS
Whereas, on the 13th day of April, 2005 plans,
specifications, form of contract and estimated
cost were filed with the City Clerk of Dubuque,
Iowa for the Pennsylvania Avenue - Radford
Road Sidewalk Installation Project.
Whereas, notice of hearing on plans,
specifications, form of contract, and estimated
cost was published as required by law.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the said plans, specifications, form of
contract and estimated cost are hereby
approved as the plans, specifications, form of
contract and estimated cost for said
improvements for said project.
Passed, adopted and approved this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Connors. Motion carried 7-0.
RESOLUTION NO. 231-05
AWARDING CONTRACT
Whereas, sealed bid proposals have been
submitted by contractors for the Pennsylvania
Avenue - Radford Road Sidewalk Installation
Project, pursuant to Resolution No. 168-05 and
notice to bidders published in a newspaper
published in the City of Dubuque, Iowa on the
22nd day of April, 2005.
Whereas, said sealed proposals were opened
and read on the 10th day of May, 2005, and it
has been determined that the bid of Skyline
Trucking & Storage, Inc. of Zwingle, Iowa, in the
amount of $75,270.55 was the lowest bid for the
furnishings of all labor and materials and
performing the work as provided for in the
construction documents.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the Contract for the above improvement
be awarded to Skyline Trucking & Storage, Inc.
and the Manager be and is hereby directed to
execute a contract on behalf of the City of
Dubuque for the complete performance of the
work.
BE IT FURTHER RESOLVED:
That upon the signing of said contract and the
approval of the contractor's bond, the City
Treasurer is authorized and instructed to return
the bid deposits of the unsuccessful bidders.
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Connors. Motion carried 7-0.
RESOLUTION NO. 232-05
RESOLUTION WITH RESPECT TO THE
ADOPTION OF THE RESOLUTION OF
NECESSITY PROPOSED FOR THE PENN-
SYLVANIA AVENUE - RADFORD ROAD
SIDEWALK INSTALLATION PROJECT
Whereas, the City Council has proposed a
Resolution of Necessity for the Pennsylvania
Avenue - Radford Road Sidewalk Installation
Project has given notice of the public hearing
thereon as required by law; and
Whereas, the public hearing has been held, all
persons offering objections have been heard
and consideration given to all objections and is
pending before this Council; and
Whereas, this is the time and place set as
provided for the taking of action on the proposed
Resolution of Necessity.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the proposed Resolution of Necessity
described above is hereby:
226
Regular Session, May 16, 2005
~ Adopted, without amendment, and all
objections filed or made having been duly
considered are overruled.
_ Adopted as amended by the Schedule of
Assessments attached hereto as Exhibit A, and
made a part hereof by reference. All objections
filed or made having been duly considered are
overruled.
_ Deferred for later consideration to a City
Council meeting to be held on the _ day of
, 2005, next at 6:30 p.m. in the Public Library
Auditorium, with jurisdiction retained for further
consideration and action at the adjourned
meeting.
Abandoned.
Passed, adopted and approved this 16th day of
May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, CMC, City Clerk
Cline moved adoption of the Resolution.
Seconded by Connors. Motion carried 7-0.
City Hall - Third Floor Structural Repairs
Project - Award: Proofs of publication on notice
of hearing on plans and specifications and
notice to bidders on the receipt of bids, and City
Manager recommending award of the contract
for the City Hall - Third Floor Structural Repairs
Project to Tricon Construction in the amount of
$83,075, presented and read. Markham moved
that the proofs and communication be received
and filed. Seconded by Cline. Motion carried 7-
O.
RESOLUTION NO. 233-05
RESOLUTION ADOPTING
PLANS AND SPECIFICATIONS
Whereas, on April 4, 2005, plans,
specifications, form of contract and estimated
cost were filed with the City Clerk of Dubuque,
Iowa for the City Hall-3rd Floor Structural
Repairs.
Whereas, notice of hearing on plans,
specifications, form of contract, and estimated
cost was published as required by law.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the said plans, specifications, form of
contract and estimated cost are hereby
approved as the plans, specifications, form of
contract and estimated cost for said
improvements for said project.
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Markham moved adoption of the Resolution.
Seconded by Cline. Motion carried 7-0.
RESOLUTION NO. 234-05
AWARDING CONTRACT
Whereas, sealed proposals have been
submitted by contractors for the City Hall 3rd
Floor Structural Repairs Project pursuant to
Resolution No. 147-05 and notice to bidders
published in a newspaper published in the City
of Dubuque, Iowa on the 8th day of April, 2005.
Whereas, said sealed proposals were opened
and read on the 5th day of May, 2005, and it has
been determined that the bid of Tricon
Construction of Dubuque, Iowa in the amount of
$83,075 was the lowest bid for the fumishing of
all materials and performing the work as
provided for in the plans and specifications.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
That the contract for the above improvement
be awarded to Tricon Construction of Dubuque,
Iowa and the Manager be and is hereby directed
to execute a contract on behalf of the City of
Dubuque for the complete performance of the
work.
BE IT FURTHER RESOLVED:
That upon the signing of said contract and the
approval of the contractor's bond, the City
Treasurer is authorized and instructed to return
the bid deposits of the unsuccessful bidders.
Passed, approved and adopted this 16th day
of May, 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Markham moved adoption of the Resolution.
Seconded by Cline. Motion carried 7-0.
Michalski moved to reinstate the rules limiting
discussion to the Council. Seconded by
Connors. Motion carried 7-0.
ACTION ITEMS
Tobacco Compliance - Civil Penalties for
Tobacco Permit Holders: City Manager
recommending acceptance and approval of
AcknowledgemenUSettlement Agreements for
Dubuque Discount Gas, Ron's Discount
Smokes, HyVee Store and Hartig Drug
Company #4 and the assessment of $300
penalties for tobacco compliance violations and
further recommending that a tobacco
compliance hearing be held regarding the
tobacco compliance violation by A.W.N. Stop
Mart and if the violation is sustained the
attached order assessing the 1st violation civil
penalty of $300 to A.W.N. Stop Mart be issued,
presented and read. Buol moved that the
communication be received and filed and
approved recommendation. Police Chief
Wadding spoke and clarified the penalty
process. The tobacco compliance hearing for
A.W.N. Stop Mart was conducted. Nicholson
moved that the first violation civil penalty of
227
Regular Session, May 16, 2005
$300, to be paid by June 16, 2005, be assessed.
Seconded by Michalski. Motion carried 7-0.
Exterior Storage Container Ordinance: City
Manager recommending that the ordinance
prohibiting the use of exterior storage containers
be repealed and that a new ordinance regulating
the use of exterior storage containers be
adopted; Request of Michael J. Coyle, on behalf
of Bill Denlinger, Heartland Storage, to address
the Council regarding the outside storage
ordinance; Request of Steward Sandstrom,
President and CEO of the Dubuque Area
Chamber of Commerce, requesting to address
the Council regarding the prohibition of exterior
storage containers; Correspondence from Larry
Wolff, 3890 Central Avenue, requesting that the
recent ordinance eliminating outdoor storage
containers I trailers be rescinded;
Communication from Steve Selchert, Steve's
Ace Hardware, Inc., regarding proposed
changes to the storage container ordinance and
an Ordinance Amending the City of Dubuque
Code of Ordinances by repealing Section 11-83
Exterior Storage Containers Prohibited
Ordinance No. 84-04, presented and read.
Attorney Mike Coyle, representing Bill
Denlinger, spoke stressing that Ordinance No.
84-04 was detrimental to businesses and
distributed a petition with the signatures of 133
businesses opposing the present Ordinance.
Buol moved to receive and file the
communications. Seconded by Nicholson.
Motion carried 7-0.
Jim Theisen, 2606 Hacienda, spoke
supporting the repeal of Ordinance No. 84-04,
stressing that ground containers were the safest
for individuals to load and unload, and requested
Council postpone any July 1 st implementation
of the Ordinance and work on the problem.
Council discussed several issues concerning
the ramifications of this Ordinance.
An Ordinance Repealing City of Dubuque
Code of Ordinances Section 11-83 (Ordinance
84-04) Exterior Storage Containers Prohibited,
presented and read.
OFFICIAL PUBLICATION
ORDINANCE NO. 36-05
REPEALING CITY OF DUBUQUE CODE OF
ORDINANCES SECTION 11-83 (ORDINANCE
NO. 84-04) EXTERIOR STORAGE
CONTAINERS PROHIBITED
NOW, THEREFORE, BE IT ORDAINED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 11-83 of the City of Dubuque Code of
Ordinances (Ordinance No. 84-04) is hereby
repealed.
Passed, approved and adopted this 16th day
of May, 2005.
IslTerrance M. Duggan, Mayor
Attest:
IslJeanne F. Schneider, CMC
City Clerk
Published officially in the Telegraph Herald
newspaper this 21 st day of May, 2005.
Jeanne F. Schneider, City Clerk
1 t 5/21
Buol moved that the requirement that a
proposed Ordinance be considered and voted
on for passage at two Council meetings prior to
the meeting at which it is to be finally passed be
suspended. Seconded by Nicholson. Motion
carried 7-0. Michalski moved final consideration
and passage of the Ordinance and directed staff
to work with the Chamber of Commerce and
business owners on a compromise by July 1,
2005. Seconded by Buol. Motion carried 7-0.
Fiscal Year 2005 Arts and Culture Grant
Program for Special Projects: Arts and Cultural
Affairs Advisory Commission recommending
approval of grant awards to Dubuque County
Historical Society ($12,000), Fly-By-Night
Productions ($10,000), Dubuque Symphony
Orchestra ($5,000) and Dubuque Museum of Art
($3,000) for the Fiscal Year 2005 Arts and
Culture Grant Program for Special Projects,
presented and read.
Jane Kenworthy, 490 Alpine, Chair of the
Commission, spoke appreciatively.
Cline moved to receive and file and approve
recommendation. Seconded by Connors.
Motion carried 7-0.
Arts and Cultural Affairs Advisory Commission
- Fiscal Year 2006 Funding: Arts and Cultural
Affairs Advisory Commission submitting its
recommendation on $200,000 in Fiscal Year
2006 funding for Arts and Cultural Affairs,
presented and read. Michalski moved that the
communication be received and filed and
approved recommendation. Seconded by Buol.
Motion carried 7-0.
Municipal Communication Utility Feasibility
Study: City Manager recommending approval to
negotiate and execute a contract with Vernon
Research Group, in partnership with Virchow,
Krause & Company and Columbia Tele-
communications Corporation, to conduct a
Municipal Communication Utility Feasibility
Study for the City of Dubuque, presented and
read. Cline moved that the communication be
received and filed and approved recom-
mendation. Seconded by Nicholson. Motion
carried 7-0.
Eleanor Ridge Subdivision: City Manager
recommending approval of the final plat of Lots
1 through 12, inclusive, of Eleanor Ridge
Subdivision, presented and read. Cline moved
228
Regular Session, May 16, 2005
that the communication be received and filed.
Seconded by Connors. Motion carried 7-0.
RESOLUTION NO. 235-05
RESOLUTION APPROVING THE FINAL PLAT
OF LOTS 1 THRU 12, INCLUSIVE, OF
ELEANOR RIDGE SUBDIVISION IN
DUBUQUE COUNTY, IOWA
Whereas, there has been filed with the City
Clerk a final plat of Lots 1 thru 12, Inclusive, of
Eleanor Ridge Subdivision; and
Whereas, the preliminary plat has been
examined by the Zoning Advisory Commission
and has its approval endorsed thereon, with the
waiver of Article IV, Design and Improvement
Standards of the Subdivision Regulations,
except for Section 42-19, Blocks and Lots; and
Whereas, said final plat has been examined by
the City Council and they find that it conforms to
the statutes and ordinances relating thereto.
NOW THEREFORE, BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the City Council hereby waives
Article IV, Design and Improvement Standards
of the Subdivision Regulations, except Section
42-19, Blocks and Lots.
Section 2. That the final plat of Lots 1 thru 12,
Inclusive, of Eleanor Ridge Subdivision is
hereby approved and the Mayor and City Clerk
are hereby authorized and directed to endorse
the approval of the City of Dubuque, Iowa, upon
said final plat, provided the owners of said
property herein named, execute their written
acceptance hereto attached agreeing:
a) To construct street improllements and
storm sewers in accordance with improvement
plans approved by Dubuque County and
certified upon completion by a professional
engineer licensed by the State of Iowa.
b) To maintain the street improvements and
storm sewers constructed as part of Lots 1 thru
12, Inclusive, of Eleanor Ridge Subdivision, until
such time as a homeowners association is
formed and is responsible for maintenance of
the same.
Section 3. That in the event Rick Ehrlich fails
to execute the acceptance within 180 days after
the date of this Resolution, the provisions hereof
shall be null and void and the approval of the
plat shall not be effective.
Passed, approved and adopted this 16th day
of May 2005.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk
Cline moved adoption of the Resolution.
Seconded by Connors. Motion carried 7-0.
Historic Preservation Commission: Historic
Preservation Commission recommending
approval of an application from the Historic
Preservation Commission/Dave Stuart for
funding from the Historic District Public
Improvement Project Program to install replica
traffic lights along Loras Boulevard at the
intersections of Bluff Street, Locust Street, Main
Street and Iowa Street, presented and read.
Michalski moved that the communication be
received and filed and denied recommendation.
Seconded by Nicholson. Motion carried 7-0.
Regional Development Effort Along Highway
151: City Manager recommending two City of
Dubuque appointments to the Executive
Committee being established to promote
development along Highway 151 between
Dubuque and Marion, presented and read.
Michalski moved that the communication be
received and filed and appointed Economic
Development Director David Heiar and GDDC
Director Rick Dickinson. Seconded by
Nicholson. Motion carried 7-0.
Cedar Cross Road: City Manager
recommending approval of an ordinance
prohibiting parking in a section of Cedar Cross
Road and to modify the Code of Ordinances to
extend the parking restriction along the narrow
section of Cedar Cross Road, presented and
read. Buol moved that the communication be
received and filed. Seconded by Connors.
Motion carried 7-0.
An Ordinance Amending Section 32-262(d) of
the Code of Ordinances of the City of Dubuque,
Iowa, prohibiting parking on designated streets
or portions thereof by adding a portion of Cedar
Cross Road, presented and read.
OFFICIAL PUBLICATION
ORDINANCE NO. 37-05
AMENDING SECTION 32-262(d) OF THE
CODE OF ORDINANCES OF THE CITY OF
DUBUQUE, IOWA, PROHIBITING PARKING
ON DESIGNATED STREETS OR PORTIONS
THEREOF BY ADDING A PORTION OF
CEDAR CROSS ROAD
NOW THEREFORE, BE IT ORDAINED BY
THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the Code of Ordinances of the
City of Dubuque, Iowa, is amended by deleting
from Subsection (d) of Section 32-262 the
following:
Cedar Cross Road, both sides, from U.S.
Highway 20 to Starlight Drive and from North
Cascade Road to a point two hundred seventy
five feet (275') north of North Cascade Road.
Section 2. That the Code of Ordinances of the
City of Dubuque, Iowa, is amended by adding to
Subsection (d) of Section 32-262 the following:
Cedar Cross Road, both sides, from U.S.
Highway 20 to a point one hundred feet (100')
west of Cedar Cross Court and from North
Regular Session, May 16, 2005
229
Cascade Road to a point two hundred seventy
five feet (275') north of North Cascade Road.
Passed, approved, and adopted this 16th day
of May, 2005.
IslTerrance M. Duggan, Mayor
Attest: IslJeanne F. Schneider, CMC
City Clerk
Published officially in the Telegraph Herald
newspaper this 21st day of May, 2005.
Jeanne F. Schneider, City Clerk
1t 51 21
Buol moved to receive and file the
communication and moved that the requirement
that a proposed Ordinance be considered and
voted on for passage at two Council Meetings
prior to the meeting at which it is to be finally
passed be suspended. Seconded by Connors.
Motion carried 6-0 with Cline temporarily out of
the room. Buol moved final consideration and
passage of the Ordinance. Seconded by
Nicholson. Motion carried 6-0 with Cline
temporarily out of the room.
Worksession on Zoning and Subdivision
Ordinance Update: City Manager submitting
information on the Update of the Zoning and
Subdivision Ordinance and requesting that a
City Council Worksession be scheduled for
Monday, June 13, 2005, from 6:30 p.m. to 8:30
p.m. to receive City Council input on major
policy issues, presented and read. Buol moved
that the communication be received and filed
and concurred with scheduled Work Session
date and time. Seconded by Connors. Motion
carried 7-0.
Armed Forces Day: American Legion
Dubuque Post No.6 announcing that the City of
Dubuque is being recognized as the Employer of
the Year for support of City employees activated
and deployed in Guard and Reserve Units,
presented and read. Buol moved that the
communication be received and filed. Seconded
by Markham. Motion carried 7-0.
PUBLIC INPUT
Ken Nye spoke requesting Police investigate
the confiscation of his social security funds.
At 9:51 P.M. Buol moved that Council go into
Closed Session re: Pending Litigation and
Property Acquisition - Chapter 21.5(1)(c)G) 2005
Code of Iowa and Collective Bargaining Strategy
- Chapter 20.17(3). Seconded by Nicholson.
Motion carried 7-0.
At 10:13 P.M. Council reconvened stating Staff
had been given proper direction.
There being no further business, Buol moved
to adjourn. Seconded by Nicholson. Motion
carried 6-0 with Michalski out of the room. The
meeting adjourned at 10:14 P.M.
Isl Jeanne F. Schneider, CMC
City Clerk
2005