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Home My WebLink About1995-10-24 Public hearingNOTICE OF PUBLIC HEARING Notice is hereby given that a public hearing will be held by the City Council of Iowa City, Iowa, at 7:30 p.m. on the 24th day of October, 1995, in the Civic Center Council Chambers, 410 E. Washington Street, Iowa City, Iowa; at which hearing the Council will consider: 1. An ordinance amending the Zoning Chapter by adopting a Sensitive Areas Ordinance to regulate development on properties contain- ing environmentally sensitive features, including wetlands, stream corridors, steep slopes, wooded areas, hydric soils, prairie remnants and archaeological sites. Copies of the proposed ordinance are on file for public examination in the office of the City Clerk, Civic Center, Iowa City, Iowa. Persons wishing to make their views known for Council consideration are encouraged to appear at the above-mentioned time and place. MARIAN K. KARR, CITY CLERK ff/7 ppdadrnin~cc 10-24.nph ORDINANCENO. AN ORDINANCE AMENDING THE ZONING CHAPTER BY INCORPORATING A NEW SECTION 14-6K-1, ENTITLED "SENSITIVE AREAS ORDINANCE," TO REGULATE DEVELOPMENT IN ENVIRONMENTALLY SENSITIVE AREAS IN IOWA CITY, IOWA. WHEREAS, pursuant to a City Council directive to develop an ordinance which permits the reasonable use of properties containing sensitive features while protecting such resources from destruction, the Sensitive Areas Committee has generated the Sensitive Areas Ordinance; and WHEREAS, the Sensitive Areas Ordinance will implement the environmental policies set forth in the Iowa CiW Comprehensive Plan; and WHEREAS, the Sensitive Areas Ordinance is intended to protect the public from injury and property damage due to flooding, erosion and other natural hazards as well as a loss of natural heritage and reduced qualiW of life; and WHEREAS, the Sensitive Areas Ordinance will regulate development on properties containing environ- mentally sensitive features, including wetlands, stream corridors, steep slopes, wooded areas, hydric soils, prairie remnants, and archaeological sites; and W~-IEREAS, the Sensitive Areas Ordinance will foster urban design that preserves open space and minimizes disturbance of environmentally sensitive features and natural resources; and WHEREAS, the Sensitive Areas Ordinance is designed to permit and define the reasonable use of properties which contain environmentally sensitive features and natural resources while recognizing the importance of environmental resources and protecting such resources from destruction; and WHEREAS, the Planning and Zoning Commission and the Riverfront and Natural Areas Commission have reviewed the Sensitive Areas Ordinance and have recommended its adoption to carry out the intents and purposes stated above. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: SECTION I. APPROVAL. A. Chapter 6, entitled "Zoning Chapter," Article 14, entitled "Flood Plain Management Ordinance," is hereby refitled "Environmental Regulations" with the following sections listed below created and titled as follows: 14-6K-1: "Sensitive Areas Ordinance", and 14-6K-2: "Flood Plain Management Ordinance". B. Sections 1-10 of Article K, previously entitled "Flood Plain Management Ordinance," are hereby renumbered and transferred as lettered subparagraphs A - J of the newly created Section 14- 6K-2, titled as "Flood Plain Management Ordinance", following the newly adopted section 14- 6K-1, entitled "Sensitive Areas Ordinance," which is hereby added as follows: 14-6K-1: SENSITIVE AREAS ORDINANCE Purpose: The purpose of the Sensitive Areas Ordinance is to: 1. Implement the environmental policies of the Comprehensive Plan. 2. Permit and define the reasonable. use of properties which contain environmentally sensitive features and natural resources while recognizing the importance of environ- mental resources and protecting such resources from destruction. 3. Provide for ecologically sound transitions between protected environmentally sensitive areas and urban development. 4. Protect the public from injury and property damage due to flooding, erosion, and other natural hazards which can be exacerbated by development of environmentally sensitive land. Ordinance No. Page 2 5. Foster urban design that preserves open space and minimizes disturbance of environ- mentally sensitive features and natural resources. 6. Provide for the mitigation of disturbances of environmentally sensitive features and natural resources through requiring and implementing mitigation plans, as needed. Applicability: 1. Sensitive Areas Overlay (OSA) Zone a. A Sensitive Areas Overlay (OSA) rezoning is required prior to development activities on properties containing the following sensitive features: 1 ) Wetlands, 2) WoOdlands two acres in size or greater, where other sensitive features exist on the site, 3) Critical slopes {25-39%), or 4) Protected slopes (40% +) as defined in Section 14-6K-1C, as delineated on the maps referenced in Section 14-eK-B3 and/or verified as existing on the site. b. A Sensitive Areas Overlay rezoning require~ a planned development that pro- tects the sensitive features that exist on the site. A Sensitive Areas Develop- ment Plan that delineates protected sensitive areas and associated buffers within the planned development shall be submitted and approved in conjunction with a Sensitive Areas Overlay rezoning. 2. Sensitive Areas Site Plan a. If a property does not contain sensitive features that require a Sensitive Areas Overlay rezoning, but one or more of the sensitive features listed below exist on the site, a Sensitive Areas Site Plan review requirement will be implement- ed. Sensitive features that require a Sensitive Areas Site Plan include: 1 } Fully hydric soils, 2) Prairie remnants one acre in area or larger, 3) Stream corridors, 4) Archaeological sites, 5) Steep slopes (18~24%) 6) Woodlands two acres in size or greater, when no other sensitive fea- tures exist on the site as defined in Section 14-6K-1C of the Sensitive Areas Ordinance, as delineated on the maps referenced in Section 14-6K-1 B3 of the Sensitive Areas Ordinance and/or verified as existing on the site. b. Recording requirement. A Sensitive Areas Site Plan approved under the provi- sions of the Sensitive Areas Ordinance {Section 14-6K-1) that contains a protected sensitive area and/or buffer, or has a designated conservation ease- ment shall be recorded in the Johnson County Recorder's Office prior to issu- ance of any certificate of occupancy for the property. The recording is intend- ed to provide notice to subsequent property owners that environmental limita- tions apply to the subject property. 3. Sensitive Features a. Sensitive features governed by the Sensitive Areas Ordinance (Section 14-6K- 1 ) include: 1) Jurisdictional wetlands as delineated by the U.S. Army Corps of Engi- neers. 2) Floodways designated on either the current Federal Emergency F~an- agemerit Agency flood boundary and floodway maps for Iowa City and Johnson County or the iowa City (1 inch = 100 foot scale) flood boundary and floodway maps. 3) Drainageways shown in blue on the current U.S. Geological Survey Quadrangle Maps. 4)Slopes 18 percent or greater. 5) Woodland areas two acres in size or greater. Ordinance No. Page 3 6) Hydric soils as designated in the USDA Soil Conservation Service Soil Survey of Johnson Countv, Iowa. 7) Prairie remnants as shown on the Iowa City Sensitive Areas inventory Map - Phase I, as amended Archaeological sites as determined by the State Historic Preservation Officer or the State Archeologist. b. When sensitive features, as specified above, exist on tracts of land or portions of tracts of land, either a Sensitive Areas Site Plan, or a Sensitive Areas Over- lay rezoning application, as required, shall be submitted and approved by, or a certificate of exemption shall be obtained from the City prior to.woodland clearing, grading or development activities on the property. This process may occur as part of site plan review, planned development overlay zoning and/or subdivision review. Definitions: The following definitions apply to the interpretation and enforcement of the regulations of the Sensitive Areas Ordinance: ARCHAEOLOGICAL SITE, SIGNIFICANT: An archaeological site of prehistoric or historic significance that is determined by the State Historic Preservation Officer to be eligible for the National Register of Historic Places. BUFFER: Located adjacent to a designated sensitive area, a land area that provides a transition area that protects slope stability, attenuates surface water flows and preserves wildlife habitat and protected wetlands, stream corridors and woodlands. BUFFER, NATURAL: A land area located adjacent to a protected sensitive area where no development activities, such as building, grading, or clearing are allowed unless otherwise exempted. COMPENSATORY MITIGATION: Creating a new wetland or enhancing or expanding an existing wetland in exchange for allowing development activities to occur within an existing wetland. CONSTRUCTION AREA: The portion of a parcel of land where building, parking and other improvements may be located and where construction activity may take place. DEVELOPMENT ACTIVITY: Any human-made change tO improved or unimproved real estate, including, but not limited to the placement of manufactured housing, buildings or other struc- tures, mining, dredging, filling, grading, paving, excavation or drilling operations. DIAMETER, TREE TRUNK: The diameter of a tree trunk measured at 4 1/2 feet above ground; if on a slope, measured from the high side of the slope. In the case of a tree with multiple trunks, the diameter shall be the sum of the diameters of the trunks. DIRECT DISCHARGE: The discharge of untreated surface water into a wetland from a devel- oped or developing properW through the use of an underground pipe, culvert, drainage,tile, ditch, swale, channel or other means. FLOOD EVENT; 100 YEAR: A flood, the magnitude of which has a one percent (1%) chance of being equaled or exceeded in any given vear, or which on the average will be equaled or exceeded at least once every one hundred (100) years. FLOOD PLAIN: Any land area susceptible to being inundated by water as a result of a specific frequency flood. For instance, the 100-year flood plain is the area of land susceptible to being inundated by a 100-year flood event. Ordinance No. Page 4 FLOODWAY: The channel of a river or stream and those portions of the flood plains adjoining the channel which are reasonably required to carry and discharge flood waters so that confine- ment of flood waters to the floodway area will not result in substantially higher flood elevation. Where floodway data has been provided in the Flood Insurance Study, such data shall be used to define the floodway limits. FULLY HYDRIC SOILS: Soils susceptible to water saturation, which were designated as fully hydric soils by the USDA Soil Conservation Service, December 1993. GRADING: Any excavating or filling or a combination thereof, including compaction. GROVE OF TREES: Ten or more individual trees having a diameter of at least 12 inches,' and whose combined canopies cover at least fifty (50) percent of the area encompassed by the trees. PRAIRIE REMNANT: Prairie areas that have remained relatively untouched on undeveloped, untilled portions of properties ~nd contain primarily a mixture of native, warm season grasses interspersed with native, flowering plants. Known extant prairie remnants are identified on the Iowa City Sensitive Areas Inventory Map - Phase I. PREHISTORY: Relating to or existing in times antedating written history (prior to approximately 1700 AD in Iowa CiW). SENSITIVE AREAS CONSERVATION TRACT: A separate tract which protects sensitive areas and associated buffers within planned developments, subdivisions and building site plans; held separately from buildable lots by an incorporated homeowners' association or a nonprofit conservation organization, or dedicated to the City. SENSITIVE AREAS DEVELOPMENT PLAN: A plan required to be submitted and approved in conjunction with a Sensitive Areas Overlav {OSA) rezoning that designates protected sensitive areas and associated buffers within a planned development. SENSITIVE AREAS INVENTORY MAP - PHASE I: The map of the Iowa City service area with designations of potential environmentally sensitive areas, such as woodlands, wetlands, floodplains, steep slopes, hydric soils, prairie remnants and geological, historical and archaeo- logical features. SENSITIVE AREAS OVERLAY (OSAI ZONE: A planned development rezoning of a tract of land that requires the approval of a Sensitive Areas Development Plan, which designates protected sensitive areas and their associated buffers on said tract. SENSITIVE AREAS, PROTECTED: Portions of a parcel of land containing environmentally sensitive features that are designated on an approved Sensitive Areas Site Plan or a Sensitive Areas Development Plan and where no development activity is allowed. SENSITIVE AREAS SETBACK LINE: A line delineated on a proposed development plan or site plan that establishes the no-build line around protected sensitive areas, such as wetlands, streams, steep slopes, and woodlands, and their required buffers. SENSITIVE AREAS SITE PLAN; A site plan for development on a tract of land that does not require a Sensitive Areas Overlay (OSA) rezoning, and is not exempted, but requires an approved plan for protecting sensitive areas on said tract. SLOPE: An inclined ground surface, either naturally occurring, or altered, but not approved by the City, with a vertical rise of at least 10 feet. Ordinance No. Page 5 SLOPE, CRITICAL: A slope of 25 percent, but less than 40 percent. SLOPE, PERCENT OF: The slope of a designated area determined by dividing the horizontal run of the slope into the vertical rise of the same slope and converting the resulting figure into a percentage value. SLOPE, PROTECTED: Any slope of 40 percent or steeper. SLOPE, STEEP: A slope of 18 percent, but less than 25 percent. STREAM CORRIDOR: A river, stream or drainageway shown in blue (the blue line) on the most current U.S. Geological Survey Quadrangle Maps, and the area of its delineated floodway. In cases where no floodway is delineated, the blue line will serve as the centerline within a 30- foot wide stream corridor. TREE, FOREST: Any tree two inches in diameter or greater, and included on the list of forest trees approved by the City. WETLAND: Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. For the purposes of the Sensitive Areas Ordinance (Section 14-6K-1), wetland shall mean a jurisdictional wetland as delineated by the U.S. Army Corps of Engineers or a wetland specialist, based on the current federal delineation manual. WETLAND SPECIALIST: An individual certified as a wetland specialist by the SocieW of Wetland Scientists, hnd/or a person who can demonstrate to the City that they have expertise in wetland areas which may include delineation, mitigation and evaluation. WOODED AREAS: includes woodlands and/or groves of trees, as defined in this section. WOODLAND - Any tract of land with a contiguous wooded area not less than two acres and containing not less than 200 forest trees per acre. WOODLAND CLEARING: The destruction or removal of trees within woodlands subject to this Chapter by physical, mechanical, chemical or other means, such that it results in a total opening in the woodland canopy of 20,000 square feet or more. Exemptions: The following activities may be considered exempt from the requirements of the Sensitive Areas Ordinance: 1. Emergency/public safety. Grading, clearing, removal or other activities required for emergency situations involving ~mmediate danger to life, health and safety, or which create an immediate threat to property or create substantial fire hazards. 2. Ownership. Change in ownership of a property and/or business. 3. Normal maintenance/expansion of existing single-family or duplex residences. Exterior remodeling, reconstruction or replacement of single-family or duplex residences in existence on January 1, 1996, the date the Sensitive Areas Ordinance becomes effective, provided the new construction or related activity connected with an existing single-family or duplex residence shall not increase the footprint of the structure lying within the sensitive area by more than a maximum total of 1000 square feet, and also provided there is no encroachment by said activities, including grading into a jurisdic- tional wetland, a designated conservation tract and/or protected sensitive area. 4. Construction of new single-family or duplex residences. Grading, clearing or develop- ment activities not to exceed a maximum total of 20,000 square feet in area on a tract of land for the purpose of construction, landscaping and/or associated improvements Ordinance No. Page 6 for one (1) single-family or duplex residence, provided there is no encroachment by said activities into a jurisdictional wetland, a designated conservation tract and/or protected sensitive area. Drainage ditches/groundwater monitoring wells. Normal and routine maintenance of existing drainage and storm water management facilities. This includes vegetative maintenance for access and storm water/flood control purposes within and adjacent to drainageways. Except for temporary storage outside a wetland or water body, placement of fill or dredge spoils is not permitted, Groundwater monitoring wells when constructed to standards approved by the CiW. Woodland management activities. Practices associated with timber management standards as defined by the International Society of Arboriculture, or existing tree farming operations, such as Christmas tree farming, fruit or nut tree production and tree nurseries, during such time as the land is used for tree farming operations. Uses Permitted Within Protected Sensitive Areas and Buffers. Where it can be shown that a use will not be detrimental to the functioning of sensitive areas or associated buffers, or pose a.public safeW hazard, the City may permit the following uses: Parkland, private open space, and trails that provide opportunities for environmental interpretation, and are designed to incorporate features that protect areas of wildlife habitat, water quality and the natural amenities of the sensitive areas in which they are located. 2. Stream crossings, such as bridges, roads and culverts, and/or streambank stabilization · designed to minimize the reduction of the flood carrying capacity of the stream and are in compliance with all fedoral and state regulations. 3. Essential public utilities, such as storm and sanitary sewers, water mains, gas, tele- phone and power lines, and storm water detention facilities, if they are designed and constructed to minimize their impact upon the sensitive areas and associated buffers. The design and construction of utilities should include measures to protect against erosion, pollution and habitat disturbance, and result in minimal amounts (~f excavation and filling. Upon completion of the installation of the public facility or line, the sensi- tive areas and associated buffers will be restored. Submittal Requirements: The owner of a tract of land containing the sensitive features listed in Section 14-6K-1 B, entitled "Applicability," who is obliged to develop in accordance with the provisions of the Sensitive Areas Ordinance (Section 14-6K-1) and is not otherwise exempted, shall submit six copies of a Sensitive Areas Site Plan and an application for its approval to the Department of Housing and Inspection Services, or if required, shall submit ten copies of a Sensitive Areas Development Plan and an application for a Sensitive Areas Overlay rezoning to the City Clerk. 1. Sensitive Areas Site Plan: Submittal information for a Sensitive Areas Site Plan shall include: a. Submittal information required for a site plan review as specified in Sections 14-SH-4A and 1 4-SH-4B, the submittal requirements listed for Section 14-5H, entitled "Site Plan Review." b. Delineation of sensitive areas located on the property, including: 1) Areas of fully hydric soils. 2) Prairie remnant areas. 3) Stream corridors. 4) Steep slopes. 5) Woodland Areas c. Delineation of buffer areas and/or conservation easements for sensitive areas. d. Note in an accompanying letter whether archaeological site(s) exist on the property, but do not designate the exact location on the plan. e. Other data and information as may be reasonably required by the City. Sensitive Areas Development Plan: Submittal information for a Sensitive Areas Devel- opment Plan shall include: a. All the information required for a Sensitive Areas Site Plan, and Ordinance No. Page 7 b. Submittal information required by Section 14-6J-2, entitled "Planned Develop- ment Housing Overlay Zone (OPDH)," and c. Delineation of the following sensitive areas located on the property: 1 ) Wetland areas. 2) Critical slopes. 3) Protected slopes. d. Delineation of buffers and/or conservation areas for sensitive areas located on the property. e. Other date and information as may reasonably be required by the City. 3. The City may waiue any submittal requirements considered unnecessary for the review of a specific development project. Wetlands: 1. Purpose: The purpose of regulating development in and around wetlands is to: a. Recognize the unique and valuable attributes of wetlands as areas where stormwater is naturally retained, thereby controlling the rate of runoff, improv- ing water quality, recharging groundwater resources, providing erosion control and lessening the effects of flooding. b. Promote the preservation of habitat for plants, fish, reptiles, amphibians and/or other wildlife. c. Minimize the impact of development activities on wetland areas. d. Provide a greater degree of protection for many wetland areas above and beyond that provided by the federal and state government. e. Minimize the long term environmental impact associated with the loss of wetlands. 2. Wetland Regulation by Other Agencies: The approval of a Sensitive Areas Develop- ment Plan or a Sensitive Areas Site Plan under the provisions of the Sensitive Areas Ordinance (Section 14-6K-1 ) does not abrogate the applicant's need to obtain permits required by other local, state, or federal agencies. 3. Wetland Regulations: a. Wetland Delineation: 1) Prior to any development activity occurring on a site containing a potential wetland as defined above or as shown on the Sensitive Areas Inventory Map - Phase i, the property owner shall be responeible for providing a delineation of the wetland area(s) accepted by the U.S. Army Corps of Engineers prior to the submittal of a Sensitive Areas Development Plan or a Sensitive Areas Site Plan for review. 2) If the property owner certifies that no development activity will occur within 150 feet of the apparent edge of the suspected weftand area(s) on the site, the requirement for delineation by a wetland specialist or the Corps may be waived. In this case, the property owner shall grant an easement in favor of the City or an approved conservation group or organization for the purpose of retaining the wetland and the surround- ing 150 foot protection area as undeveloped natural open space, and follow the procedures for a Sensitive Areas Site Plan as set forth in the Sensitivq Areas Ordinance (Section 14[-6K-1 ). b. Wetland Buffer Requirements: A 100 foot, undisturbed, natural buffer shall be maintained between any development activity and a wetland(s] as defined in the Sensitive Areas Ordinance (Section 14-6K-1), unless said development activity is exempted under Section 14-61(-1D. The required yards established for the base zoning district shall be measured from the buffer edge. and shall apply to parking lots as well. [For example, the RS-5 zone requires a 20-foot rear yard setback, which would be measured from the outside edge of the required 100 foot buffer. As a result, no building or parking lot could be located within 120 feet of the wetland.] The City may reduce the required natural buffer based on the following criteria: Ordinance No. Page 8 1} 2} 3) The required natural buffer may be reduced by up to 50 feet if it can be demonstrated by a wetland specialist that the wetland: a) Is less than five acres in area; and b) Does not contain species listed by the federal and/or state government as endangered or threatened, or critical or out- standing natural habitat for those species; and c} Does not contain diverse plant associations of infrequent occur- rence or of regional significance; and d) Is not located within a stream corridor as defined in the Sensi- tive Areas Ordinance (Section 14-6K-1). The required natural buffer may be reduced by up to 75 feet if it can be demonstrated by a wetland specialist that the wetland: a) Satisfies the criteria listed in subsection 1 above; and b) Does not, in a year of average precipitation, contain standing water throughout the calendar year; and c) Is not a forested wetland; and d) Does not provide a known habitat for migratory birds of local or regional significance. Buffer averaging may be permitted or required where an increased buffer is deemed necessary or desirable to provide additional protection to one area of a wetland for aesthetic or environmental reasons. In this situation, the width of the required buffer around other areas of the wetland may be reduced by up to 50 percent, but the area of the provided buffer must be equal to or greater than the area of the re- quired buffer. 4) In determining whether to reduce or not to reduce the required buffer, the CiW may consider the following: a) The proposed land use of the property and its potential impact on the wetland. b) The design and layout of the proposed development in relation to the wetland. c) The physical characteristics of the site and the wetland. d) Any other factor related to the short or long term environmen- tal stability and health of the wetland. Design Standards: 1) No grading, dredging, clearing, filling, draining, or other development activity shall occur within the delineated wetland or required buffer area unless said activity is part of a mitigation plan as approved under Section 14-6K-1G4. 2) For property not served by a municipal sewer system, the location of septic tanks, soil absorption systems, holding tanks, or any other element of an on-site sewage disposal system, must meet the required yard specified in the regulations of the base zoning district, as mea- sured from the buffer edge. Ordinance No. Page S 3) To mitigate negative impacts of development and limit sedimentation, the direct discharge of untreated surface water from a development site or a developed area into a wetland may be prohibited. The partial treatment of storm runoff through the use or combined use of con- structed wetlands, detention basins, vegetative filter strips, sediment traps or other means before it reaches a wetland will be considered as part of a mitigation plan as provided in Section 14-6K-1G4. in such case, the discharge should not increase the rate of flow or decrease the water quality of the wetland, unJess it can be shown by a wetland specialist that an increase in the rate of flow will enhance, not adverse- ly impact, the wetland. On any lot containing a wetland, erosion control measures, whether required under Chapter 14-51, entitled "Grading Ordinance," or as part of a mitigation plan approved under the provisions of the Sensitive Areas Ordinance {Section 14~6K-1), shall be installed prior to any development activity occurring on the site. 5) The I~lanting of foreign or invasive species, including intrusive native varieties, in wetland or buffer areas shall be prohibited. Only non- intrusive native species shall be used to supplement existing vegeta- tion. 6) The removal of foreign or invasive species, including intrusive native varieties, within a wetland or buffer area may be permitted when approved as part of a mitigation plan as provided under Section 1 4-6K- 1G4. 7) Where it is determined that the area occupied by the required buffer provides little natural protection to the wetland due to previous land disturbance, enhanced vegetative cover shall be provided within the buffer area to help filter and slow the flow of surface water. The enhanced vegetation shall consist of species that are known to be non- invasive to wetland areas. Wetland Mitigation: A Sensitive Areas Development Plan or Sensitive Areas Site Plan for property containing e wetland as defined in the Sensitive Areas Ordinance (Section 14-6K-1) shall include a mitigation plan showing that all regulations contained in Section 14-6K~1G3, Wetland Regulations, will be met. Avoiding a delineated wetland area and minimizing the impact of development on a wetland is strongly encouraged, and shall be investigated before compensatory mitigation will be considered. a. In addition to the submittal requirements contained in Section 14-6K-IF, a wetland mitigation plan shall include the following information: 1 ) The type and location of erosion control measures to be placed on the property prior to any other development activity occurring on the site. 2} The boundaries of the delineated wetland and the required natural buffer area. 3) Certification by a wetland specialist or the Army Corps of Engineers regarding the wetland delineation, if required. 4) Information regarding the characteristics of the wetland necessary to determine the allowable buffer reduction as provided in Section 1 4-6K- 1G3b, if a reduction is requested. 5) A storm water management plan i~dicating that the requirements of Section 14-3G, entitled "Storm Water Collection, Discharge and Run- off," and Section 14-6K-1G3c3 will be met. b. Compensatory mitigation may be permitted only if it is clearly demonstrated that avoiding and minimizing the impact on a wetland is unreasonable. A permit for any development activiW within a wetland area is required by the U,S. Army Corps of Engineers. If a permit is granted for development activity within a wetland, compensatory mitigation shall be required based on the Ordinance No. Page 10 following Corps: 1) criteria, unless a greeter degree of compensation is required by the Wetlands containing species listed by the federal or state government as endangered or threatened, or containing critical or outstanding natural habitat for those species, wetlands containing the presence of diverse plant associations of infrequent occurrence or of regional impor- tance, and wetlands located within stream corridors as defined in the Sensitive Areas Ordinance (Section 14-6K-1) shall be considered pro- tected, "no build" wetland areas. Compensatory mitigation will be considered only if the wetland disturbance is relatively small in relation to the overall wetland and if it can be shown that the disturbance will not have an adverse impact on the overall wetland. if compensatory mitigation is permitted for a wetland meeting these characteristics, the required replacement ratio of comparable replacement habitat to habitat lost shall be at least 3:1. 2) The replacement ratio of comparable replacement habitat to habitat lost shall be at least 2:1 for wetlands not meeting the criteria listed in Section 14-6K-1G4b1, but containing: a) Standing water throughout the calendar year under average precipitation, b) Forested wetlands, and/or c) Wetlands providing a known habitat for migratory birds of regional or local significance. 3) Compensatory mitigation for all other wetlands regulated under the Sensitive Areas Ordinance (Section 14-6K-1) shall be at a ratio of at least 1:1. If said wetland and/or the replacement habitat is enhanced ~o meet one or more of the criteria listed in Sections 14-6K-1G461 or 14-6K-1G4b2 above, the required replacement ratio may be reduced to 0.5:1. Where compensatory mitigation is proposed, the mitigation plan specified in by Section 14-6K-1G4a must be prepared by a wetland specialist. A compensa- tory mitigation plan must include the following components: 1 ) An assessment of the value of the wetland being replaced to determine the appropriate replacement ratio; 2) A clear statement of the goals of the mitigation plan, including specific statements regarding the expected rate of establishment of a vegeta- tive cover over specified periods of time; 3) Analysis of the soils, substrate and hydrology of the proposed site of the constructed or expanded wetland in terms of their suitability to provide a proper growing medium for the proposed vegetation; 4) A list of the plant species to be used, which should include only native, non-invasive species, and their proposed locations. Transplanting as much of the native vegetation from the original wetland as possible, as well as the upper six to twelve inches of the soil, is encouraged; and !5) Provisions for monitoring the condition of the new or enhanced wetland area for a period of five (5) years, and identification of the party re- sponsible for replanting in the event of poor initial growth or predation resulting in a failure of over 30 percent of the planted stock. Informa- tion collected during the monitoring process shall be submitted to the City annually and include the following: a} Data on plant species diversity and the extent of plant cover established in the new or enhanced wetland; and Wildlife presence; and Data on water regimes, water chemistry, soil conditions and ground and surface water interactions; and Ordinance No. Page 11 H. Stream 1, d) Proposed alterations or corrective measures to address defi- ciencies identified in the created or enhanced wetland, such as a failure to establish a vegetative cover or the presence of invasive or foreign species. Corridors: Purpose: The purpose of regulating development in and around stream corridors is to: a. Recognize the value of stream corridors in providing floodwater conveyance and storage. b. Promote filtration of storm water runoff. c. Reduce streambank erosion. d. Protect and enhance wildlife habitat. Stream Corridor Regulation by Other Agencies: The approval of a Sensitive Areas Development Plan or a Sensitive Areas Site Plan does not abrogate the applicant's need to obtain permits required by other local, state or federal agencies. Stream Corridor Regulations: Any property located adjacent to the Iowa River or another stream corridor in Iowa City will be required to submit a Sensitive Areas Site Plan, unless said property qualifies for an exemption under Section 14-61(-1D, or is considered under a Sensitive Areas Development Plan review required for another sensitive feature. Stream Corridor Buffer Requirements: a. Unless exempted under Section 14-6K-1D, the following buffer requirements will be maintained; when other sensitive features are located within a stream corridor, the most stringent required protective buffer will apply: Along the Iowa River, a 50-foot natural buffer will be maintained be- tween any development activity and the floodway. Along tributaries to the Iowa River that have a delineated floodway, a 30-foot natural buffer will be maintained between any development activiW and the floodway. These tributaries include, but.are not limited to Ralston Creek, Willow Creek, Snyder Creek, Clear Creek and Rapid Creek. 3) Along tributaries or drainageways that do not have a delineated flood- way, a 15-foot natural buffer will be maintained between any develop- ment activity and the stream corridor limits. BUFFER REQUIREMENTS I1~ Sll~EAM CORRIDORS 30'-- TRIBUTARIF.~ WITH EOOE OF The City may reduce the required natural buffer based on the following criteria: 1} The required natural buffer may be reduced by up to 50 percent if the applicant demonstrates that the portion of the buffer being reduced: a) Does not contain significant existing vegetative cover, such as native trees or prairie remnants; and Does not contain other sensitive areas subject to the require- ments of the Sensitive Areas Ordinance (Section 14-6K- 1 ); end Ordinance No. Page 12 Steep Slopes: 1. c) Enhanced vegetative cover will be provided in the remaining buffer area. 2) The required natural buffer may be reduced by up to 100 percent if the applicant demonstrates that: a) The property is adjacent to or contains a stream corridor that is located in a developed area of the City (defined as an area of the City where platted lots abut the stream as of January 1, 1996, the effective date of the Sensitive Areas Ordinance (Section 14-6K-1)); and b) The portion of the buffer being reduced does not contain other sensitive areas subject to the requirements of the Sensitive Areas Ordinance (Section 14-6K-1); and c) Requiring the full stream corridor buffer would preclude reason- able use of the property; and d) Enhanced vegetative cover will be provided in an,/ remaining buffer area, to the extent possible. In determining whether to reduce the required buffer, the City may consider the following: The proposed land use of the property and its potential impact on the stream corridor; 2) The design and layout of the proposed development in relation to the stream corridor; 3) The characteristics of the site and the stream corridor; and Any other factor related to the short or long term environmental stabili- ty and health of the stream corridor. Purpose: The purpose of regulating development on and near steep slopes is to: a. Promote safety in the design and construction of developments. b. Minimize flooding, landslides and mudslides. c. Minimize soil instability, erosion and downstream siltation. d. Preserve the scenic character of hillside areas, particularly wooded hillsides. Regulations: a. Steep Slopes - Any property containing steep slopes (18-24%) shall be required to submit a Sensitive Areas Site Plan, unless said property qualifies for an exemption under Section 14-6K-1D. The Sensitive Areas Site Plan must conform with the design guidelines specified in Section 14-6K-114. b. Critical Slopes - Any property containing critical slopes (25-39%) shall be required to submit a Sensitive Areas Development Plan and a Grading and Erosion Control Plan, unless said properW qualifies for an exemption under Section 14-6K-1D. The Sensitive Areas Development Plan must conform with the design guidelines specified in Section 14-6K-114, and the Grading and Erosion Control Plan must conform with the requirements of the Grading Ordinance (Section 14-§1). c. Protected Slopes - Any area designated as a protected slope (40% +) shall not be graded and must remain in its existing state, except that natural vegetation may be supplemented by other plant material. Buffer requirements: A buffer will be required around all protected slopes. Two feet of buffer will be provided for each foot of vertical rise of the protected slope, up to a maximum buffer of 50 feet. The buffer area is to be measured from the top, toe and sides of the protected slope. No development activities, including removal of trees and other vegetation, shall be allowed within the buffer. If a geologist or professional engi- neer can demonstrate to the satisfaction of the City that a development can be de- signed to eliminate hazards, the setback and buffer requirements may be reduced. Ordinance No. Page 13 BUFFER REQUIREMENTS FOR PROTECTED 5'LO~ Design Standards: The following guidelines shall be addressed when either a Sensitive Areas Site Plan or a Sensitive Areas Development Plan for property containing steep slopes is submit- ted: a. Every lot or parcel shall have a construction area equal to at least 40% of the minimum lot size required by the zone in which it is located. [For example, the construction area would be 3,200 square feet for a minimum 8,000 square foot lot located in an RS-5 zone]. ' b. Except for driveways and utilities installation, no grading or excavation shall be allowed outside the construction area. c. Cut slopes shall be constructed to eliminate sharp angles of intersection with the existing terrain and shall be rounded and contoured as necessary to blend with existing topography to the maximum extent possible. The City will not accept the dedication and maintenance of cut and fill slopes, except those within the required street right-of-way. Street rights-of-way and public utility corridors shall be located so as to mini- mize cutting and filling. To maintain the stabiliW of ungraded areas, existing vegetation shall be re- tained to the maximum extent possible. Wooded Areas 1. Purpose: The purpose of regulating development in and around wooded areas is to: a. Reduce damage to wooded areas of the City, particularly wooded wetlands, steep slopes and stream corridors. b. Reduce erosion and siltation. c. Minimize the destruction of wildlife habitat. d, Encourage subdivision and site plan design which incorporate groves and woodlands as amenities within a development. Woodland/Grove Regulations: a. Anv property containing a woodland in combination with any other environ- mentally sensitive area subject to the requirements of this ordinance will be required to submit a Sensitive Areas Development Plan, prior to woodland clearing or commencing any development activity, unless said property qualifies for an exemptio~ under Section 14-6K-1D. b. Any property containing a woodland, but not otherwise required to hove a Sensitive Areas Development Plan, will be required to submit a Sensitive Areas Ordinance No. Page 14 Site Plan prior to woodland clearing or commencing any development activity, unless said property qualifies for an exemption under Section 14-eK-1D. c. Site and grading plans and subdivision plats for any property containing a grove of trees shall illustrate the grove on the plan or plat prior to commencement of any development activity, and will take measures to protect and retain as much of the grove as practicable, unless said property qualifies for an exemption under Section 14-eK-1D. d. If the property owner certifies that no development activity will occur within 100 feet of the trunks of the trees to be protected in a woodland, the require- ments of a., b. or c. above may be waived. The woodland and a 100 foot protection area shall be preserved as public or private open space, either through dedication, a conservation easement, or control by a homeowners' association. Woodland Retention and Replacement Requirements a. Sensitive Areas Development Plans and Sensitive Areas Site Plans required to be submitted under this section shall delineate all existing woodlands and shall designate all woodlands that are to be protected. The plans shall substantiate that woodlands are being retained as follows: Zone Retention ReQuirement ID, RR-1 70% RS-5, RS-8, RS-12, 50% RM-12, RM-20, RM-44, RNC-12, RNC-20 20% RDP, ORP 20% C and I 10% b. The required woodland area to be retained shall be delineated 50 feet from the trunks of trees intended to be preserved. c. If the City determines that the required woodland area cannot be retained due to site constraints or infrastructure requirements, replacement trees will be planted at a ratio of one tree per everv 200 square feet of woodland removed in excess of the required retention percentage. d. Where it is not feasible to replace trees on-site, replacement trees may be planted to supplement reforestation of an off-site woodland approved by the City. An off-site woodland shall be either publicly owned property or property subject to a conservation easement. e. Replacement trees must be approved by the City, and to the extent possible, should be of the same or equivalent species as the trees being removed. f. Replacement trees shall meet the specifications set forth in Section 14-6R-5, entitled "General Tree Planting Requirements," and shall be secured by a performance guarantee for a period of 12 months. g. Woodland and tree protection methods for proposed development activities shall be shown on any plan or plat required to be submitted prior to commence- ment of development activities. Protection methods should comply with generally accepted tree protection guidelines and be approved by the CiW. h. When other environmentally sensitive features regulated by the Sensitive Areas Ordinance (Section 14-6K-1) are present in combination with a woodland, the regulations related to all the sensitive areas contained on the property will be considered, with the most stringent regulations applying. Design Guidelines: The following guidelines should be addressed when either a Sensi- tive Areas Site Plan or a Sensitive Areas Development Plan is submitted: a. To the extent possible, woodlands located on steep and/or critical slopes and/or within 100-year flood plains should be given the highest retention priority when meeting the requirements of section 14-eK-1J3a. b. Street rights-of-way, public utility corridors and building sites should be located so as to minimize their impact on woodlands and groves. Ordinance No. Page 15 c. Where possible woodlands and groves to be protected should be located within designated public or private open space, either through dedication, a conserva- tion easement, or control by a homeowners' association. Fully Hydric'Soils: 1. Purpose: Fully hydric soils may indicate the potential existence of jurisdictional wet- lands and the probable existence of a high water table. The purpose of regulating lands that contain fully hydric soils is to recognize the constraints imposed on urban development projects by potential wetlands and/or high water tables. That is: a. Wetlands are protected under state and federal law, and as such, are consid- ered no-build areas unless appropriate and approved mitigation measures are undertaken. b. High water tables on a property require special construction practices both for infrastructure, such as streets, and for structural development, such as resi- dences, being constructed on the property. 2. Regulations: a. If fully hydric soils exist on a property where development is proposed, the property owner shall verify whether wetlands exist on the site. If wetlands are delineated on the site, compliance with the wetlands provisions of the Sensitive Areas Ordinance (Section 14-6K-1) will be required. b. More stringent construction safeguards, as specified by the City Public Works Department, will be required for streets, structures and stormwater manage- ment facilities located in hydric soils. Sump pump discharge and elevations of window openings may also be regulated, as specified by the CiW Public Works Department. c. Hydric soils, in and of themselves, will not be sufficient to require a Sensitive Areas Overlay rezoning. Properties containing fully hydric soils, but not other- wise ~'equiring a Sensitive Areas Development Plan, will require a Sensitive Areas Site Plan Review. 3. Design standards: To the extent possible, urban development projects will be designed so that areas of hydric soils will be treated as an environmental asset; used for storm- water detention, wetland enhancement or buffers, protective greenbelts along stream corridors, and neighborhood open space. Prairie Remnants: 1. Purpose: The purpose of protecting prairie remnants in Iowa City is to: a. Recognize the value of prairie remnants for holding soil in place, absorbing pollutants and taking up large amounts of moisture. These functions are particularly important when prairie remnants are located along streambanks, adjacent to wetlands or on areas of highly erodible soil. b. Protect and enhance the function of prairie remnants to provide wildlife habitat, ecological diversity and environmental education opportunities in an urban setting. 2. Prairie Remnant Regulations: a. Development of properties containing prairie remnants one acre in size or larger that are not associated with other sensitive features will be designed to retain the maximum amount of prairie remnant possible, while not precluding reason- able use of the property. b. Prairie remnants associated with other sensitive features, such as stream corridors, wetlands, steep slopes, woodlands or a stand of significant trees will be treated as environmental assets, and will be considered no-build areas to the extent possible, and used for buffers, filter strips along waterways, and/or neighborhood open space. c. Prairie remnants, in and of themselves, will not be sufficient to require a Sensi- tive Areas Overlay rezoning. Properties containing prairie remnants one acre in size or larger, but not otherwise requiring a Sensitive Areas Development Plan, will require a Sensitive Areas Site Plan review. Ordlnanca No, Page 16 Archaeological Sites: 1. Purpose: The purpose of regulating development of lands which contain archaeological sites is to: a. Help assure that sites which contain important information regarding the community's prehistory and history are identified, studied, protected, and/or properly excavated when appropriate. b. Allow the State Historic Preservation Officer and, where appropriate, the State Archaeologist the opportuniW to document and study important prehistoric and historic sites. c. Allow for the consideration of prehistoric and historic sites in the planning and development of a property to minimize delays when it is determined that study or excavation of such sites is necessary. d. Provide for the early identification of human burial sites to ensure that the State Code regarding such burial sites is not violated and to avoid unnecessary delays in subdivision development and subdivision redesign if such sites are discovered after commencement of development. 2. Notification: When the Sensitive Areas Inventory Map ~ Phase I indicates that an archaeological site is located in the quarter section within which a site plan, planned development or a subdivision is proposed, the City will forward the site plan or subdivi- sion plan to the State Historic Preservation Officer (State) or the State Archaeologist. The State will notify the City if a recorded archaeological site exists within the area of the site plan, planned development or subdivision. The State will also notih/the City if the site is of such archaeological importance that it requires further study by the State or a State-approved archaeologist. 3. Regulations: a. Archaeological Sites - If it is determined by the State that further study of an archaeological site is necessary, the CiW may approve the site plan or a subdi- vision, subject to a requirement that the State or a State-approved archaeolo- gist be allowed to study the site and, if appropriate, complete an excavation of the site for the purpose of documenting the significance of the site. The State shall have a period of up to thirty (30) days in which the site is frost-free to study and, where appropriate, excavate the site. This requirement shall not prevent or delay activities which are approved under the grading ordinance, site plan review, planned development or subdivision regulations for portions of the property which do not contain archaeological materials. The applicant may choose to hire an archaeologist approved by the State to complete a study or excavation plan approved by the State. In this way, the study or excavation work may be completed in a more timely manner. b. Significant Archaeological Sites - if the State determines that the property includes a significant prehistoric or historic site which cannot be studied and excavated within a thirty (30) day period, the site plan or a subdivision plan may be approved subject to an archaeological assessment plan, which specifies a period of time in which the State or a State-approved archaeologist may document and/or excavate a site. If the site is determined to be of such state or national significance that it should not be disturbed, an attempt should be made to design the site plan or subdivision plan to allow retention of the site as private or public open space. c. B~rial Grounds - When a site contains a human burial ground, the State Ar- chaeologist shall determine the significance of the burial ground and whether or not the human remains may be disinterred. If the State Archaeologist determines that the human remains should not be disturbed, the portion of the Ordinance No. Page 17 property containing the burial grounds plus a 20-foot buffer around the burial grounds shall be set aside as permanent, private or public open space. 4. Discovery of Unrecorded Archaeological Sites: If, during the course of grading or construction, prehistoric artifacts, historic objects or human remains are encountered, the State shall be notified. The State may take steps to excavate and preserve the objects, if practical, or in the case of human burial grounds, the State Archaeologist shall determine whether or not the human remains can be disinterred. If it is deter- mined that the human remains cannot be disinterred, the portion of the property containing the burial ground shall be returned to its preconstruction condition. Sensitive Areas Development Plan Design Guidelines: 1. Purpose: The purpose of Sensitive Areas Development Plan design guidelines is to: a. Provide for flexibility in the design of public infrastructure and residential developments to help assure that developments near, in or adjacent to environ- mentally sensitive areas, are designed to use land efficiently and preserve environmentally sensitive areas as open space amenities. b. Allow flexibility in the application of development codes, standards and guide- lines to allow innovative designs that promote the purpose of the Sensitive Areas Ordinance. c. Encourage development which provides for easy access and circulation for pedestrians and bicyclists. d. Encourage innovative residential developments that contain a variety of housing types and swiss. e. Allow neighborhood commercial uses which are appropriate in scale and design for the proposed development. 2. Applicability: a. The Sensitive Areas Development Plan design guidelines are to be used by the City when evaluating a Sensitive Areas Overlay rezoning. These guidelines are intended to be flexible and allow modifications of the requirements of the underlying zoning district and subdivision regulations. When applying such guidelines, the CiW will weigh the specific circumstances surrounding each application, and strive for development solutions that best promote the spirit, intent and purpose of the Sensitive Areas Ordinance (Section 14-6K-1). b. The development guidelines contained in the Sensitive Areas Ordinance (14-6K- 1 ) are to be used by the City as minimum requirements for evaluating Sensitive Areas Development Plans. However, such guidelines are not intended to restrict creativity and an applicant may request modifications of the Sensitive Areas Development Plan guidelines which may be approved by the City in accordance with the following standards: 1. The modification will be in harmony with the purpose and intent of the Sensitive Areas Ordinance (Section 14-6K-1). 2. The modification will generally enhance the Sensitive Areas Develop- ment Plan and will not have an adverse impact on its physical, visual or spatial characteristics. 3. The modification shall not result in a configuration of lots or a street system which is impractical or detracts from the appearance of the proposed development. 4. The modification will not result in danger to public health, safeW or welfare by preventing access for emergency vehicles, by inhibiting the provision of public services, by depriving adjoining properties of ade- quate light and air, or by violating the purposes for and intent of this article. c. These development guidelines recognize that when environmentally sensitive features are protected by conservation easements or other development restric- tions, the overall dwelling unit density of a property may be reduced. The Sensitive Areas Development Plan procedures allow the dwelling unit density that otherwise would have been permitted in an environmentally protected area Ordinance No. Page 18 3. Street a. to be transferred to the portions of the property which are identified as not being environmentally sensitive. To help assure that the resulting denser development is developed in an attractive and livable manner, the following guidelines shall be applied. d. These guidelines recognize that it may be necessary to decrease lot area requirements, lot width requirements and street right-of-way and paving re- quirements in order to increase the density on the developable portion of the property. These guidelines also recognize that special design concerns are necessary for smaller lot developments. The use of rear lanes to provide for vehicular access to individual lots will help assure that an attractive and pedes- trian-friendly streetscape is developed. Design Guidelines: A modified grid street pattern which is adapted to the topography, natural features and environmental constraints of the property is encouraged. Cul-de-sacs and other roadways with a single point of access should be mini- mized, but may be used where environmental constraints prevent the construc- tion of a grid street pattern. C. Street right-of-way widths may be reduced below those otherwise required by the subdivision regulations if plans provide sufficient area for the location of public and private utilities along the streets or rear lanes. d. Street pavement widths of local streets may be reduced to 25 feet. Further reductions of street pavement width may be considered for alternative street designs that promote pedestrian-oriented street frontages by restricting access for vehicles other than emergency vehicles to the rear of the lots. e. When street pavement widths are reduced below 28 feet, alternative locations for parking, such as rear lanes and off-street parking clusters are encouraged. Rear Lane Design Guidelines; a. The use of rear lanes to provide for vehicular access to individual lots and an alternative location for utility easements can enhance the livability of compact neighborhoods. When rear lanes are used, lot widths can be reduced to ap- proximately one-half the otherwise required 45-60 foot lot width. In this manner, more lots can be developed per linear foot of street paving. b. Rear lanes, which are located parallel to local streets, are encouraged. Where rear lanes are provided, driveway access to lots shall be via such rear lanes to the extent possible. In such locations, curb cuts onto a parallel street should be minimized. Utility easements should be located in rear lanes to the extent possible. c. Rear lanes should have a minimum pavement width of 16 feet. The paved rear lane should be centered within a right-of-way or easement which provides sufficient room on each side to allow for a utility corridor. Conventional street design Alternative street design with vehicular access from rear lane Ordinance No. Page 19 10. Pedestrian Walkway Guidelines: To assure that pedestrians have adequate access throughout a development, sidewalks and pedestrian pathway networks should be provided. The location and design of pedestrian sidewalks and pathways should be based on the volume of traffic anticipated on the adjacent street; the length of the segment of sidewalk or walkway; the need to provide for snow storage when walk- ways are located adjacent to streets; and the degree to which access to an environ- mentally sensitive feature is desirable. Land Uses: The design guidelines of the Sensitive Areas Overlay Zone are intended to encourage a mixture of housing types, and where appropriate, commercial uses. When located adjacent to single-family and duplex structures, multi-family buildings should be of a scale, massing and architectural style that is compatible with the adjacent lower density residential development. Developments consisting of only one housing type are discouraged except where the development is of a small size, A mixture of the following land uses are encouraged to be integrated within a develop- ment: a, b. Co d. e, Detached single-family dwellings. Duplexes. Zero-lot line dwellings and townhouses. Multi-family buildings. Accessory apartments limited to less than 800 square feet in floor area provid- ed that they are located within an owner-occupied dwelling or within a permit- ted accessory building associated with an owner-occupied dwelling. f. Commercial uses which are appropriate in scale and compatible with nearby residential development. Commercial uses are not permitted in Sensitive Areas Development Plans for properties less than two (2) acres in size. Dimensional Requirements: To encourage more compact development and allow the transfer of dwelling unit densiw from environmentally sensitive areas of a property tO non-environmentally sensitive areas of a property, the dimensional requirements of the underlying zone may be waived. a. Minimum lot area, lot width, lot frontage and yards may be reduced provided that sufficient yards are incorporated for each dwelling unit. For example, sin- gle-family homes can be located on lots of approximately 4,000 square feet and still contain from and rear yards of 20 feet and side yards of 5-10 feet. For townhouses and zero lot line developments, yards may be reduced to approximately 10 feet and still provide for a landscape transition between street rights-of-way and adjacent dwellings. To provide for a livable environ- ment, development on small lots will require careful architectural design, careful placement of garages and automobile parking areas. The use of rear lanes for vehicular access to small lot developments is therefore encouraged. b, The maximum building height and building coverage may be waived provided that the design of the development results in sufficient light and air circulation for each building. For example, an increase in height from 35 feet (3 stories) to 45 feet (4 stories) may be appropriate provided that taller buildings are set back from adjacent buildings to allow each dwelling unit adequate light expo- sure. Dwelling Unit Density: The overall dwelling unit density, based on total land area minus public and private street right-of-way area (excluding rear Isnes) in the Sensitive Areas Development Plan, shall not exceed the maximum density permitted in the underlying zone. Sensitive Open Space Designation: sensitive areas snd their required buffers are encouraged to be incorporated into the design of the development as public open space dedicated to the City, or private open space held in common by a homeowners' association. Where sensitive features and/or their required buffers are incorporated into individual lots, they shall be included within a conservation easement. Where commercial developments are proposed, they should be of a scale suited to serve the residents of the immediate development and sdiacent neighborhoods. Ordinance No. Page 20 Commercial buildings should be located adjacent to the street with parking spaces located behind the building and screened with landscaping from adja- cent residential structures. Dwelling units are encouraged above the first floor of buildings containing commercial space. Commercial development should be designed to serve as a focal point of the overall development and is encouraged to incorporate open spaces such as town squares. Commercial development should be designed so that the material, messing and architectural sWle is compatible with the adjacent residential development. Neighborhood scale commercial with dwelling units located on second floor and parking located behind the building 11. Additional Considerations: Due to the concentration of dwelling units and the juxta- position of different land uses that can be achieved by incorporating the above provi- sions into the design of a Sensitive Areas Development Plan, adherence to the follow- ing design considerations is encouraged to assure that the resulting development is attractive and provides for a transition between public streets and private residences. a. Where narrower lots are proposed, garages should be located so that they do not dominate the streetscape, as illustrated below. Where reduced front yards are proposed, the use of porches is encouraged to provide a transition between the street and the dwelling unit. Where a variety of housing types, such as single family, duplex and multi- family buildings, are mixed within a development, similar architectural schemes, scale, messing and materials should be used to help assure that the various building b/pes are compatible. The use of traditional Iowa City architectural styles, such as prairie, craftsman, vernacular farm house and Victorian designs are encouraged. Ordinance No. Page 21 Reduced front yard Porches provide transition between the street and the dwelling O. Appeal. 1. The Board of Adjustment may grant a special exception to the provisions of the Sensitive Areas Ordinance (Section 14-6K-1) if the applicant is able to demonstrate that: a. Application of a particular Sensitive Areas Ordinance (Section 14-6K-1) regula- tion would deny reasonable use of the property; b. Any alterations permitted to sensitive areas are to be the minimum necessary to allow for reasonable use of the property with the least impact on the sensi- tive areas; and c. The proposed development does not pose an unreasonable threat to the public health, safety or welfare on or off the development proposal site. 2. The Board may impose conditions to limit the impact of any authorized alteration of a sensitive area under this section, including requiring mitigation under a mitigation plan approved by the City. P. Performance Guarantee, Compliance with the performance guarantee provisions of CiW Code Section 14-5H-10, the Site Plan Review section entitled, "Performance Guarantee," may be required to ensure completion of conservation measures, including plantings and other mitiga- tion or maintenance efforts, as stipulated in the Sensitive Areas Ordinance {Section 14-6K-1). Q. Enforcement. The Sensitive Areas regulations will be enforced under the provisions of Section 14-6U-7, entitled "Violations and Penalties." SECTION II. REPEALER. All ordinances and parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. SECTION III. SEVERABILITY. If any section, provision or part of the Ordinance shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the Ordinance as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional. SECTION IV. EFFECTIVE DATE. This Ordinance shall be in effect after its final passage, approval end publication, as provided by law. Passed and approved this __ day of ,19 MAYOR ATTEST: CITY CLERK Approved by City Attorney's Office I ,I CITY OF IOWA CITY, IOWA SENSITIVE AREAS INVENTORY PHASE I LEGEND CORPORATE BOUNDARY ........ STUDY AREA L~'.~ITS SECIIOR LINE · City of iowa City MEMORANDUM Date: October 18, 1995 To: Stephen Atkins, City Manager e~~/~A From: Karin Franklin, Director, Planning and Community Develop Re: Sensitive Areas Ordinance and Staffing Needs The Sensitive Area Ordinance which is before the Council is the culmination of many years of effort by members of the community who are advocates for the environment. These people are members of the City Council -- past and present, members of City Boards and Commissions, citizen environmentalists and builders and developers in Iowa City. The ordinance is the work of a bread based committee that was convened by this Council last spring. For any law to have an effect it must be enforced. Doug Boothroy, Rick Fosse and I feel it is incumbent upon us to apprise you of the implementation and enforcement needs adoption of this ordinance will create. We are not speaking to the merit of the ordinance. That is a different matter for the Council to ultimately decide. Our responsibility, after developing the legislation which meets the Council's goals, is to see that through the daily operations of the City the intent of the laws passed is met. For this ordinance to be effective additional staff in the Public Works and Housing and inspection Services departments will be required. It is particularly important that we have effective enforcement with this ordinance since to fail in this area means the loss of a feature of the environment that cannot be easily replaced. We believe that the Council's expectations for enforcement of this ordinance will be higher than for other measures due to the consequences of non-compliance -- loss of a wetland, destruction of a woodland, a steep slope or a prairie remnant. This ordinance cannot be enforced on a complaint basis as is often done with other zoning provisions. We anticipate one additional staff person will be needed in the Engineering Division of Public Works and one in Housing and Inspection Services. This is primarily due to the extra scrutiny required for subdivision plats and construction plans and the immediacy of inspection that will need to be done at the subdivision and building permit stages. How these people will be used is outlined in the attached memoranda from Doug and Rick. City of Iowa City MEMORANDUM From: Douglas Boothroy, Dir~e~', D~p'~rtrfi'~3t-of--~sing~nspection Services · Re: Sensitive Areas Ordinance Sta~g Requirements The Department of Housing Inspection Services does not presently possess the staff, technical expertise or the monitoring system required to enforce the Sensitive Areas Ordinance (SAO). Background The Building Division is the City agency responsible for enforcement of zoning requirements. If adopted, the SAO will be a zoning requirement. The City never has directly funded zoning enfomement. Building inspectors are assigned zoning enforcement matters as "additional responsibilities" to those of building code enforcement. Fees for construction permits fully fund the Building Inspection Division and the construction community has shown a willingness to support fees and fee increases in return for prompt inspection services (e.g. footing, sewer, plumbing groundwork, etc.) Therefore, due to its lack of funding, zoning enforcement has always been on a complaint basis and the availability of building inspectors. Building Code inspections are given immediate priority while zoning inspections may not occur for several days. The SAO changes the level of expectations for zoning enfomement by significantly reducing the tolerance for error in site development and requiring immediate inspection response. Protection of sensitive areas will not permit delay in inspection time, as irreversible damage could occur in the intedm. The immediacy of response requires inspectors to be available on short notice, be propedy trained, aware of the regulations, and schooled in the proper installation and location of protection measures. The adoption of the SAO without proper staffing (funding) compromises the Building Division's ability to perform good service. The lack of proper staffing and training ensures performance failures regarding SAO enforcement. Recommendations The Building Division be increased by one full-time staff specifically trained to administer the City's environmental regulations (i.e. grading, floodplain, sensitive areas), other zoning requirements, and the site plan review provisions. Fund ongoing training and a long-term monitoring system (i.e. staff to input environmental data into computerized property file system). ac~.10-13 (lb City of Iowa City MEMORANDUM Date: To: Fror:n: Re: October 17, 1995 Karin Franklin, Director of Planning and Program Development Rick Fosse, City Engineer ~ Sensilive Areas Ordinance Staffing Requirements The Engineering Division is not presently prepared for enactment of the Sensitive Areas Ordinance. At the present time we do not possess the staff or technical expertise to fulfill our regulatory role. I will address the technical aspects first. The Sensitive Areas Ordinance will require a minimum level of in-house environmental expertise for reasonable review of applications and mitigation plans. There will also be occasions where the technical review of a permit application or mitigation plan will require specialized technical review that would be most economically provided by outside consultants. With regard to staff, the Engineering Division finds itself over committed with current assignments due in part to the enactment of the Grading Ordinance, Site Plan Ordinance, and a revised way of designing Public Works Projects that includes significant public involvement. While I do not dispute the value of these changes, all aspects of our services are compromised by our inability to dedicate enough time to each effort. Additional regulatory responsibilities without additional staff will further dilute our ability to perform quality work. I recommend that the Engineering Division be assigned another engineer to assist with the regulatory aspects of the ordinance and that $7000.00 be allocated over a two year period to provide technical training for our engineers. Also, it should be understood that it will occasionally be necessary to hire specialized consultants to supplement our technical review. With respect to inspection requirements, I recommend that Housing and Inspection Services be assigned an additional inspector and assume all environmental inspection duties. This inspector will need specialized training and be available on little or no notice for inspections. The availability of the inspector is critical because the inspection will be of an action, not a product. Inspection after the fact will be of little value if the goals of the ordinance are to be achieved. Because of the specialized training and availability requirements, it seems most efficient and practical to add one inspector to HIS to cover both housing and engineering related environmental projects until such time that workload indicates a specialized inspector is required for both HIS and Engineering. cc: Chuck Schmadeke Doug Boothroy Denny Gannon City of iowa City MEMORANDUM Date: October 19, 1995 To: From: City Council Melody Rockwell, Associate Planner Re: Sensitive Areas Ordinance At the request of City Council, the Sensitive Areas Committee was formed and began meeting in December 1994. Members of the Committee represented the Planning and Zoning Commission (Tom Scott & George Starr), the Riverfront and Natural Areas Commission (Dick Hoppin & Jessica Neary), the development community (Bill Frantz & John Moreland, Jr.), environmental concerns (Sandy Rhodes), and the general public (Beth Hudspeth). The Committee met on a regular basis from December through July to formulate an ordinance to protect environmentally sensitive features within Iowa City in a way that accommodates development and creates livable neighborhoods. The draft Sensitive Areas Ordinance addresses the following sensitive features: wetlands, woodland areas, steep slopes, stream corridors, fully hydric soils, prairie remnants and archaeological sites. The draft ordinance also provides guidelines for compact development on the non-sensitive portions of the properties. To streamline the process, the Committee designed the ordinance to handle most of the sensitive features administratively through site plan review. Sites containing wetlands, slopes 25% or steeper and/or woodlands associated with other sensitive features require a Sensitive Areas Overlay rezoning; a planned development, unless exempted. The ordinance contains certain exemptions for individual single-family residences and duplexes, emergency and public safety activities and woodland management activities. In August, the Planning and Zoning Commission and the Riverfront and Natural Areas Commission began their consideration of the Sensitive Areas Ordinance. In September, both Commissions recommended approval of the Sensitive Areas Ordinance and forwarded it to City Council. Although both Commissions racommended approval of the ordinance virtually as it was presented to them by the Sensitive Areas Committee, the Riverfront and Natural Areas Commission did add a condition that "the one acre size required for the prairie remnant be justified so that it is consistent with what scientific knowledge considers to be a truly viable size for a natural prairie remnant..." At its October 18 meeting, the Riverlront and Natural Areas Commission determined that the one acre prairie remnant size was reasonable, and endorsed the draft ordinance as written. In addition to the draft Sensitive Areas Ordinance, your packet includes a map indicating the location of potential sensitive areas in Iowa City, and brochures that summarize the various sections of the ordinance. Staff will be available at the Council's Monday, October 23 meeting, to present a brief overview of the Sensitive Areas Ordinance and respond to questions. If there is specific background information on the Sensitive Areas Ordinance that you would like to have provided to the Council, please contact me at 356-5251. bC4-1MR City of Iowa City MEMORANDUM Date: To: From: Re: August 29, 1995 Planning and Zoning Commission Melody Rockwell, Associate Planner Sensitive Areas Ordinance Letters and Memoranda At the Planning and Zoning Commission's August 21 joint meeting with the Riverfront and Natural Areas Commission on the Sensitive Areas Ordinance, Ernie Galer, President, Homebuilders Association of Iowa City, requested that his letter dated July 24, 1995, and certain staff memoranda that were prepared for the Sensitive Areas Committee be forwarded to the Commissioners for consideration. Galer's letter on behalf of the Homebuilders Association is enclosed. Also enclosed are: 1) a July 21 staff memorandum on comments received at the Environmental Advocates meeting on July 17 and the Neighborhood Associations Council meeting on August 19; a July 25 staff memorandum that summarizes the results of a survey conducted with communities throughout the United States that have environmental regulations similar to those now being proposed in Iowa City, and 3) a letter of support dated July 13 from William Green, State Archaeologist. The Commission has already received the staff memorandum Galer mentioned concerning ordinance amendments staff is working on to accompany the Sensitive Areas Ordinance. The other memorandum cited by Galer on amendments to the Weed Control Ordinance will be forwarded to the Commission at the time it considers amending that section of the City Code. It is anticipated that the accompanying ordinance amendments, including revisions to the Grading Ordinance, the Weed Control Ordinance and necessary cross-references in different sections of the City Code, will be considered at the Commission's second set of meetings in September: Monday, September 18 and Thursday, September 21, 1995. If you have any questions concerning the enclosed information or would like additional supplementary material forwarded to the Commission to assist it in its consideration of the Sensitive Areas Ordinance, please feel free to call me at 356-5251. City of Iowa City MEMORANDUM Date: October 19, 1995 From: Mayor and City Council Les Kuehl~/~halrperson, Riverfront and Natural Areas Commission Re: Ser~itive Areas Ordinance Recommendations Since July, thc Riverfront and Natural Areas Commission has spent considerable time discussing the Sensitive Areas Ordinance. At the September 20th meeting, the Commission recommended that the Sensitive Areas Ordinance be adopted as proposed by the Sensitive Areas Committee with revtslons included in the draft dated September 1, 1995, and furthermore, with the following recommendation: that justification for the one acre size requirement for a prairie remnant (in Sections L.2.a and c.) be consistent with what scientific knowledge considers to be a truly viable size for such a feature. At our subsequent meeting on 18 October, we were presented with additional information regarding prairie remnant size and now agree that the minimum size of one acre for protection of prairie remnants is appropriate. I think it fair to say that all of us have found this opportunity to review and discuss this Ordinance very informative. We appreciate the opportunity to participate in matters such as this one and look forward to future activities. bc4*2CD City of iowa City MEMORANDUN! Date: To: From: Re: October 19, 1995 Mayor and City Council Members Les Kuehl, Chatrperson, Riverfront and Natural Areas Commission Flood Plain Management Ordinance During our discussions of the Sensitive Areas Ordinance, several comments from members of the Commission and from the public regarding the size of the buffer zone relative to the widths of the stream corridors were heard. Specifically, discussion focused on the size of the buffer zone boundaries that are set forth in H.4: Stream Corridor Buffer Requirements. Much of the discussion concerned possible areas of the 100-year flood plain that would not be included in the required buffers. Additionally, the Commission has concerns regarding the land uses and construction and grading methods allowed within the 100-year flood plain. Because of this discussion, the Commission recommends that the City review and consider amendments to the Flood Plain Management Ordinance to address this concern as it impacts flood plain development. Thank you for your attention to this matter. City of Iowa City MEMORANDUM Date: To: From: Re: July 21, 1995 Sensitive Areas Committee Melody Rockwell, Ass~e Planner Summary of Comments Recelved on the July 7, 1995 Draft of the Sensitive Areas Ordinance Comments from the July 17, 1995 Environmental Advocates meetinc? Attended by Jessica Neary, Beth Hudspeth, Scott Kugler Suggestion that the Planning and Zoning Commission and Riverfront and Natural Areas Commission joint public meeting be taped and broadcast on cable to increase public awareness. Concerns: That alternative design guidelines could not be used on property other than within the Sensitive Areas Overlay (OSA) zone. That the stream corridor should not be limited to the floodway, but should include the entire floodplain. Whether the public notification process is adequate for sensitive area projects undergoing administrative review. That the single-family/duplex exemptions will result in the Sensitive Areas Ordinance being adhered to during the development process, but not by individual property owners when they expand or landscape, unless sensitive areas and associated buffers become public land. Comments from the July 19, 1995 Nei(~hborhood Associations Council meetinq Attended by George Starr, Sandy Rhodes, Melody Rockwell Concerns: That the ordinance has inadequate notice provisions, particularly for the projects that undergo administrative review, and have no public scrutiny. There's too much relegated to administrative review. That the ordinance does not address impacts of a development on off-site sensitive areas, such as downstream reaches of a creek or wetlands on an adjacent property. That the City staff does not have sufficient expertise to determine whether the environmental protection measure8 set forth in the ordinance are being met. Explained 2 the use of l~e Environmental Te<~nlcal Adv~ory Committee, bu~ some doubt remained on the ability of t~e GIt~ to administer the regularforts. That the design guldellnee for compact development were Ilmited to areas containing environmentally sensitive features. City of Iowa City MEMORANDUM Date: To: From: Re: July 25, 1995 Sensitive Areas Committee John Yapp, Urban Planning Intern Survey results of communities with environmental regularohs During the monflls of June and lulL 1995, the Detoartment of Planning and Community l~velopmvnt conducted a ~trvey of communities which have environmental regolafion~. Although not all of these commm~ifies have a 'Sensitive Environmental Areas Ordinance," all of them have some environmental regulations in place. A total of t~n communities were surveyed, and are listed at the end of this memo. Questions related to tlz implementation of environmeatal regulations were asked about staffing, monitoring, enforcement, and fees. The respondents were told that we are in the process of aflding administrative procedure~ to our draft ordinance and are trying to assess the staff needed to implement it. The following is a summary of the responses received from the ten communities surveyed. A More detailed report on individual eomrmmity responses is available in appendix A at the end of this packet. de Did adoption of the Sensitive Areas Ordinance nece~itate additional staff, or was enforcement absorbed by the P~ting ~aft~. What are the number of staff meanbers involved in administeHn~ the Sensitive Areas Ordinance? Full or part-time? If applicable, what are their department(s}/job titles? What qualifications/background/training does your staff need to admlni~ter the ordinance? What are the general duties of the staff in adraln[~ering the ordinance? Although only the larger jurisdictions actually had a position for an environmental planner (Portland, Oregon, Prince Georges County, Maryland), every jurisdiction exp~ frustration at not being able to have more atari'. Mo~t mid that more staff was needed not necessarily for the site plan review process, but for "educated monitoring' of environmental areas, for public education, and for "general information." Most indiated that the main duties of their planning staff in dealing with the environmental regulations was the review process as well as education. However, everyone indicated a lack of effective monitoring, because of staff constraints. Most of the communities said that they like to have their planners have "some background" in environmental planning, but a degree in environmental planning is not necessaxy. It is important for existing staff to attend workshops and conferences on environmental concerns. Sevexal communities have one of their staff members certified for wetlads delineation. 2. Mnn/t~r/ng What types of monitoring activities do you undertake? Who monitors? How often? Does monitoring occur on a regular basis, or in response to complaints? What is the length of thne projects are monitored by CRy or County staff?. (as wtth the types of monitoring activities, this may vary by the type of sensitive featm'e}o As with the staffing, the planners I spoke to expressed frustration at not having enough trained staff to do the monitoring. Many jurisdictions turned the monitoring over to the building inspection department or general zoning enforcement department. I was advised by many people that if monitoring is done by those departments, however, you need to train individuals or hire individuals within those departments to deal with environmental regulations. Most of the places I interviewed had somewhat haphazard monitoring, not out of choice, but because of time and resource constraints. The planning staff of the City of ann arbor, mchigan, for example, has had a lot of trouble getting the inspection department to take the environmental regulations seriously. Therefore, the planning staff has had to unofficially take over the monitoring job for the environmental protection regulations. 3. F..nfnrranu, nt Prncadurx,~. Are the enforcement procedures spelled out specifically in the Sensitive Areas Ordinance or referenced to the general enforcement section of Code? Please explain generally how the enforcement procedures work. Staffing for enforcement? (Average number of staff hours per week devoted to enforcement). The enforcement procedures generally were referenced to the general enforcement section of the entire zoning code. They consisted of fines and citations. However, it seemed that specific enforcement for environmental regulations was done only by complaint, and that the building and housing inspectors were rarely trained to look for violations of environmental codes. As with the monitoring questions, the people I spoke to expressed frustration at not being able to do a better job of enforcement, because of the lack of trained staff. No one could give an average number of staff hours per week devoted to enforcement, except to say that it was done at the same time as the building and site inspections. Most of the communities felt that the lack of trained staff, combined with the relatively small fine for inframions, led to some developers trying to get away with breaking the regulations (clearing more woodland area than legally penniRed, for example). Lacey, Washington had the most unique approach, and perhaps the "best" approach in dealing with enforcement. If they find a wetland has been filled, or a tree illegally cut down, they force the perpetter to develop a mitigation plan to create a new wetland, or to replace the tree. The perpetrator has to pay for the cost of the mitigation plan, any legal cost~, and has to pay $200 a day in fines until the mitigation plan is a~roved and is acted upon. This seemed practical in that the City does not have to clean up any environmental mess. The person who is found to have developed the land in violation of the code is forced to clean up after themselves. Are there fee amounts for plan reviews, monir. orlug, escrows? Who cotlec~ the Fees? At what ~inl are the fees eolleer. ed? Are the fees speclfie~y referenced in the ,~3sitlve Areas Ordinance? Most of the respondents said the review time for a site with an environmental area was longer. The cities that impose an extra fee charge between $200 and $275. This extra fee is rarely referenced within the Sensitive Areas Ordinance. Rather, it is referenced on a separate fee schedule published by the City. A few of the jurisdictions I spoke to said they do charge extra money if the developer asks the City to do any environmental survey work. For example, Lacey, Washington has the developer pay their city forester by the hour, and Olympia, Washington charges $725 for "environmental studies." 5. Oau,r C.,grament~. Do you have any other comments regarding the sucee,.q~ or failure~ of implementing the Sensitive Areas Ordinance (political, homing affordability, development review delays, staff'rag problems)? Most of the communities did not see that the implementation of their environmental regulations had a significant effect on housing affordability. This is because most of the land being protected would be very expensive to build on in the first place, therefore land suited for affordable housing is not significantly affected. Politically, the environmental regulations were very popular with the general public when implemented {between 5 and 15 years ago). A few jurisdictions have seen political support waning in recent years. They attribute the declining support for environmental regulations to the national m~d of anti-regulation. The development community has generally been receptive to the environmental regulations, and a few planning departments have seen the ~ite plan review process speed up, because the environmental regulations make it very cut-and-dry as to what is expected of the developer, and what is expected of the City or County. Although most of the local governments have heard complaints about "takings" i~ues, very few of them have had a "takings" lawntit brought a~inst them. No~ of them have lo~t such a lawsuit. It is important to include a "r~le use exemption" clause in conjtmction with the .environmental ~ons ' ' regula , m ordm, to avoid any such hwsuits. Public education was brou~a,t uv ""--'-'~-' ..... ~ ~._,:._ :..._. a~,. l~ ~u~muy ~ a major tactor m tae succe~ of the ordinance · ,,G ~,,,,$ m mat ~ te both . ~" ,~ ..~......-,_, ___.,a_y.,_l~p_:. developers and the general public, seem to be unaware o~ o~be~ lo~ ~veaum~ denm'tm~ts -,.,,,, -- ,,----., ........... exc. hange w~th The ten juri~lictions surveyed: Ann Arbor, Michigan Lake County, Illitmis Boulder, Colorado Eugene, Oregon Laccy, Washington Bellevue, Washi%~.~on Cottage Grove, Minnesota Portland, Oregon Prince Georges County, Maryhod Olympia, Washington HOME BUILDERS ASSOCIATION OI= IOWA July 24. 1995 Melody Rockwell City of Iowa City 410 E Washington Street Iowa City, Iowa 52240 Re: Draft Sensitive Areas Ordinance Dear Melody: P.O. 8 o x ~t ~ ~ 8 F= a x: [31 ~) Thank you for the opportunity to allow members of the Home Builders Association to review the proposed draft of the Sensitive Axeas Ordinance. Our understanding of the ordinance is that it defines steps that need to be taken when builders and developers are considering areas with these sensitive features. The documents show that a significant amount of research and time has been taken by the committee and city staff to prepare this draft. We appreciate the opportunity to review the draft prior to the adoption of the ordinance. Your research may indicate that various sensitive features are currently addressed in the Uniform Building Code. Is another ordinance necessary to address those same features? Also, are we hindering development in these areas? Is it taking away land that may have been developed without compensation for that land? These are a few of the questions being asked by developers and builders. Other suggestions and comments made by developers and builders after reviewing the document include: I. Hiring specialists to study sensitive features will be very expensive and time consuming. It may detract from development in areas that were currently being considered. The cost of implementation would also be very, expensive. 2. Do any of these sensitive features currently exist in another ordinance? should be removed to eliminate confusion. If so, they 3. The ordinance is very lengthy and somewhat complicated. Can it be condensed? 4. An overall concern is that thousands of the taxpayer dollars have been spent by the City to establish a tree ordinance, an open space ordinance. a pesticide ordinance and affiliated with NATIONAL ASSOCIATION OF HOME BUILDERS & HOME BUILDERS ASSOCIATION OF IOWA Page 2. Ms. Melody Rockwell July 24, 1995 now a sensitive areas ordinance. When looking back at these ordinances, many hours have been spent by those same taxpayers to resist these ordinances. Can you reassure taxpayers that this ordinance will be effective and will benefit the community? Bill Frantz and John Moreland, committee members for the Sensitive Areas Ordinances, have worked closely with the HBA of IC Board of Directors. They have provided input and have given our membership the opportunity to respond to this proposed ordinance. Their commitment to working with the City and our association is greatly appreciated. It is our hope, to conli~ue to work with representatives from the City staff and that you will continue to provide us with information on critical issues that are faced by our City. Thank you for your consideration. Sincerely, Ernie Galer President THE UNIVffRSITY OF IOWA July 13, 1995 Melody Rockwell, Associate Hamer City of Iowa City 410 E. Washington Iowa City, Iowa 52240 Dear Ms. Rockwell: I have reviewed the draft Sensitive Areas Ordinance for Iowa City, and I fully endorse and support its provisions togaMing archaeological sites. Although archaeological .resources have been generally overlooked in d~velopment planning, they am just as important as other natural and cultural resources of ffie city. As you know, our statewide inventory of archaeological sites is constantly growing as we learn about new sites and as we refine locatiohal data on already-recorded sites. Therefore, it would be useful for your staff to consult with us on a regular basis to enable you to maintain an up-toglate map of all known alehaeological sites in the city. Congratulations to the Sensitive Areas Committee and your office for drafting this ordinance. Please let me know ff I can be of any additional assistance on this subject Sincerely, William Green State Archaeologist Offlee o! the Sure/m:haeologBt 303 Ea~flawn Iowa City. Iowa $22424 411 310/335-23:~0 FAX 110/335-2776 The following materials regarding this Item were submitted by neighboring property owners or other Interested persons. Vince Neary 715 N. T.inn Iowa City, Iowa 52240 Laura Dowd 517 Crrandviow Court Iowa City, Iowa 52246 October 19, 1995 Melodic Rockwell City of Iowa City 410 East Wafl~ington Street 52240 Re: Draft Sensitive Areas Ordinance This letter is a follow-up to comments made in a letter from Vincent Neary dated September 22 regarding the Draft Sensitive Areas Ordinance. We have enclosed lit~naturo that present~ suggested and commonly used stream corridor and wetland buffer width requirements, as well as possible incentives lh¢ City could provido to landowners to ensure faimes~ during the implementation of the ordinance. This literemro provides more supporting arguments, drawn from field research and local experience across the country, for stronger stream corridor buffer width requirements than those specified in the Draf~ Sensitive Aress Ordinance (Section 4,1, page 15). Generally, it shows that the buffer requirements in the draft ordinance are at the bottom of the average when compared to those of other communities nationwide (Tom $chu¢ler, Center for Watershed Protection, 1995). Furthermore, we continue to imist that the floodplain be included in the ordinance, for as 8chueler states, "Most communities require that the buffer fully incorporates all the lands within the 100-year floodplain." Regarding wetland buffer requirements, a report done by the Washington State Deparlment of Ecology shows that an average of 100-foot buffer width is required to protect wetlands from human encroachment and is the minimum for protecting wildlife habitat (Ca, tell etal., 1992). Therefore, we support a minimum of a 100-foot buffer width for weftands and strongly encourage the City not to compromise on this requirement. Taldng into consideration landowners' concerns, this literature suggests that to ensure fairness and flexibility when ~' tefiag buffer protection programs, incentives to landowners, such ns easements and tax breaks, should be comiderod (Schu¢ler, 1995). The City should considex providing such opportunities to landowners. We appreciale the effort the City Staffh~ pm in~o drafti~ hkis ordimmcc and tl~nk you for your attenlion to lh¢s¢ matters. La~a Dowd Ref~r~r~s $chuol~r, Tom. "The Amhitea;mo of Urban Stream Bttff~s." Watershed Prot~tion Tochniqu~, Vol. 1 No, 4 Summer 1995. Castollo, Andrew, oL al.. Wotla~d Buffca's: Use and Effectiveness. Washington State Doparlmont of Ecology, Fobrum'y 1992. cc: City Counclors We appreciate the effort the City Staff bas put into drafting this ordinance and thank you for your aRenfion to fit(so matters. Sincerely, Vince N e,~7~3 Laura Dowd Rof~'onces $ohuoler, Tong "The Arohitectue of Urban Sireare Buffers." Watenhed Protection Techniques, Vol. 1 No. 4 Summer 1995. Castelle, Andrew, eL al.. Wetland Buffo~s: Use and Effectiveness. Waslainffmn Stag Department o£Ecology, February 1992. City Couneilot The ability of a particular buffer to actually realize ils many benefits depends on how well the buffer is planned or designed. In this paper, we present a more de[tried scheme for sueam buffer design. drawn from field research and local experience across the country. The suggested urban sueam buffer design is based on len practical performance criteria ~hat govern how a buffer wtll be sized. delineated. managed. and crossed. In add,lion. the buffer destgn contains several prov~. s~ons to respect the property rtghts of adjacent land- Criteria 1: Minimum total buffer width Most local buffer criteria are composed of a single requirement that the buffer be a fixed and uniform width from the stream channel. Urban stream buffers range from :20 to :200 feel in width on each s~de of the stream according to a national survey of 36 local buffer programs, with a median of 100 feetL Most junsdlc- uons arrived at their buffer width rezlu~rement by borrowing other state and local criteria. local experi- ence. and. finally. through political comprortuse dur- ing the buffer adoption process. Most communities require that the buffer fully incorporate all lands within the 100-year floodplain, and others may extend the buffer to pick up adjacent wetlands, steep slopes or critical habitat areas. In general. a minimum base width of at least 100 feet is recommended to provide adequate stream pro- leeben. In most rcgioas of the country. this require- ment translates to a buffer that is perhaps three to five mature trees wide on each side of the channel Criteria 2: Three-zone buffer system Effective urban stream buffers are divided into three lateral zoncs:-.-streamsidc. huddle core, and outer zone. Each zone performs a different function, and has a different width, vegetative target and management scheme. as follows: [] The streamside tone pro[eels the physical aed ecological integrity of the stream ecosystem. The vegetative target is mature riparian forest that can provide shade, leaf httcr, woody debris and ere- stun protection to the stream. The minimum width is 25 f[ from each stream bank--about the d~stance of one or two mature ~rccs from the streambank. Land use is highly restricted--lira- ired to stormwater channels. footpaths. and a few utility or roadway crossings. [] The middle zone extends from the outward bound. try of the streamside zone, and vanes in width. depending on stream order, the extent of the 100- year floodplain, adjacent steep slopes and Table 2: Nuts and Bolts of an Urban Stream Buffer B Minimum total width of 100 feet, including floodplain Zone-specific goals and restricbons for the outer. m,ddie. and strearr~ s~de zones Adopt a vegetabve target based on predevelopment plant commumty [] Expand the w~(~th of the m=dclle zone tO p~ck up wetlands.slopes and larger streams a, Use clear and measurable criteria to delineate the ongin and bound- aries of the buffer [] The number and condobens for stream and buffer CrOSsings ShOuld be hmited The use of buffer for stormwater runoff treatment Should be carefully prescr;bed Buffer boundanes should be wsib:e before. during. and after construe- bon [] Buffer education and enforcement are needed to protect buffer integnty [] Buffer admimstratton should be flexible and fair tO landowners and the stream. The vege:auve target for this zone ]s also malure forest. but some clearing may be allowed for stormwater management, access, and recreational u:,es A wider range of acttrines and uses are aliowed within this gone. e.g. recreauon. b~ke paths. and stormwater BMPs. The minimum w~dth of the middle core is about 50 ft. but it is often expanded based on Effective urban stream buffers are d~vided rate three lateral zones--streams~de. m~ddle core, and outer zone. stream order. slope or the presence of critical habitats. The outer zone is the buffer's buffer. an addt- t~ona125-ft setback from the outward edge of the middle zone to the nearest permanent structure. In most Instances, it ~s a rcs~denual backyard The vegetative target for the outer zone ,s usually turf or lawn. allhough the property owner ~s encour- aged to plant trees and shrubs. and thus mcrease the total ',',~dth of the buffer. Very fcw uses are restrtcted m th~s zone Indeed. gardening. com- post plies. yard wastes. and other common restdement activities are promoted wuhm the zone. Tile only major resructions are no sepuc systems and no new permanent structures Criteria 3: Predevelopment vegetative target The ultimate vegetatv.,e target for the streams[& and middle zone of most urban stream buffers should protected wetland areas. Its functions are to pro- be specified as the predevelopment riparian plant com. tecl key components of the stream and provide mum[y--usually mature forest. Notable exceptions further distance between upland development ! include prmrie streams of the MMwest, or arroyos of Land uses with significant construction and post-construction impacts need larger buffers. Construction impacts include erosion and sedimentation, debris disposal, vegetation removal, and noise. Post-censtn~ction impacts are variable depending on the land use, but residential land use, in particular, can have significant impacts. Residential land use is associated with yard maintenance debris, domestic animal predation, removal of vegetation, and trampling. Wetland areas and their buffers should not be included in residential lots. Appropriate buffer widths vary according to the desired buffer function(s). Temperature moderation, for example, will require smaller buffer widths than some wildlife habitat or water quality functions. Buffer widths for wildlife may be generalized, but specific habitat needs of wildlife species depend on individual habitat requirements. Buffer effectiveness increases with buffer width. As buffer width increases, the effectiveness of removing sediments, nutrients, bacteria, and other pollutants from surface water runoff increases. One study found that for incrementally greater sediment removal efficiency (e.g., from 90 to 95%), disproportionately larger buffer width increases are required (e.g., from 100 to 200 feet). As buffer width increases, direct human impacts, such as dumped debris, cut or burned vegetation, fill areas, and trampled vegetation will decrease. As buffer width increases, the numbers and types of wetland-dependent and wetland-related wildlife, that can depend on the wetland and buffer for essential life needs, increases. In western Washington, wetlands with important wildlife functions should have 200 to 300-foot buffers depending on adjacent land use. In eastern Washington, wetlands with important wildlife functions should have 100 to 200-foot buffers depending on adjacent land use. To retain wetland-dependent wildlife in important wildlife areas, buffers need to retain plant structure for a minimum of 200 to 300 feet beyond the wetland. This is especially important where open water is a component of the wetland or where the wetland has heavy use by migratory birds or provides feeding for heron. The size needed would depend upon disturbance from adjacent land use and wetland resources involved. Priority species may need even larger buffers to prevent their loss due to disturbance or isolation of subpopulations. Buffer widths effective in preventing significant water quality impacts to wetlands are generally 100 feet or greater. Sensitive wetland systems will require greater distances and degraded systems with low habitat value will require less. The literature indicates effective buffers for water quality range from 12 to 860 feet depending on the type of disturbance (e.g., feedlot, silviculture) and the measure of effectiveness utilized by the author. For those studies that measured effectiveness according to removal efficiency, findings ranged from 50 to 92% removal in ranges of 62 to 288 feet. Studies that measured effectiveness according to environmental indicators such as levels of benthie invertebrates and salmonid egg development in the receiving water generally found that 98-foot buffers adjacent to streams were effective. These lat*.er buffer distances may be conservative for wetlands, where lower water velocities and presence of vegetation result in increased sediment deposition and accumulation. Studies indicate that buffers from 50 to 150 feet are necessary to protect a wetland from direct human disturbance in the form of human encroachment (e.g., trampling, debris). The appropriate width to prevent direct human disturbance depends on the type of vegetation, the iii the f~11 cost of buffer restoration is charged as a property lien", A fair and full appeals process should accompany any such enforcement action. Criteria 10: Buffer flexibility In most regions of the country. a 100-ft buffer will m. ke about $% of the total land area in any given watershed out of production (Schue]er/riptess). While this constitutes a relatively modest land reserve at the watershed scale. it can be a significant hardship for a landowner whose property is adjacent to a stream. Many communities are legitimately concerned that stream buffer requirements could represent an uncom- pensated taking of private property. These concerns can be eliminated ifa community incorporates several simple measures to ensure fairness and flexibility when administering its buffer program. As a general rule. the intent of the buffer program is to modify the location of development in relation to the stream but not its overall intensity. Some flexible measures in the buffer ordinance include the following. Maintaining buffers in private owner$lu~ Buffer ordinances that retain property in private ownership generally are considered by the courts to avoid the takings issue, as buffers provide compelling public safety, welfare and the environmental benefits t? the community (Table 1) that justify penial restric- t,OhS on land use. Most buffer programs 'meet the "rough prnponionality" test recently advanced by the Supreme Court for local land use regulation4. Indeed stream buffers are generally percol red to have a neutral or positive impact on adjacent property value. The key point is that the reservation of the buffer cannot take away all economically lgneficial use for the property. Four techniques--buffer averaging, density cempen- sation, conservation easements, and variances--can ensure that the interests of the property owners are protected. Buffer averaging In this scheme, a community provides some flex- ibility in 'the width of the buffer. The basic concept is to permit the buffer to become narrower at some points along the stream (e.g., to allow for an existing structure or to recover a lost lot), as long as the average width of the buffer meets the minimum requirement. In general, buffer narrowing is limited, such that the streamside zone is not disturbed, and no new structures are al- lowed within the 100.yr floodplain (if this is a greater distance). Density compel[sation This scheme grants a developer a credit for addi- tional density elsewhere on the site, in compensation for developable land that has been lost due to the buffer requirement. Developable land is defined as the per- lion of buffer area remulning after the 100-yr flood- plain, wetland, and steep slope areas have been sub* tracted. Credits are granted when more than 5% of developable land is consumed. using the scale shown in Table 2. The density credit is accommodated at the development site by allowing greater flexibility in setbacks, frontage distances or minimum lot sizes to squeeze in "lest lots". Cluster development (as scribed in Tesh Nora 39) also allows the developer to recover lots that are taken out of production due to buffers and other requirements. The intent of stream buffers is to modify the location but not the intensity of development. Buffer averaging, density compensa- tion, and variances can all minimiz~ the impact on property owners. Coluervarion easements Landowners should be afforded the option of pro- tecting lands within the buffer by means of a perpetual conservation easement. The easement conditions the use of the buffer, and can be donated to a land trust as a chahtable contribution that can reduce an owner's income tax burden. Ahamativaly, the conservation easement can be donated to a local government, in exchange for a reduction or elimination of property tax on the parcel. Variances The buffer urdinanco should have provisions that enable a existing prol~rty owner to be granted a varianco or waiver, if the owner can demoes~m severe economic hardship or unique ciraurestanees make it impossible to meet some or all of the buffer requirements. The owner should also have access to a defined appeals process should the request for a vari- anco be denied. Summary Urban stream buffers are an intol~alelement of any local stream protection program. By adopting some of these mthar simple performance criteria, communities can make their s~'eam buffers more than just a line on a map. Better design and planning also ensure that communities realize the full environmental and social benefits of stream buffers. Edltor'e Note: ThL~ article b a condensed e~cerpt from a fonheoming bool~ endtied "Site Planning for Stream Protection" titat will be jotntly publtlhed by the Metropolitan Washington Council of Governments and the Center.for Watershed Protection by October 1995. The nurtural centsou practical gw4a_nce on the design of ~trearn buffers, cluster development, narrower re4idtntial streets, and green parking IOL~. HOME BUILDERS ASSOCIATION OF IOVVA CITY September 20, 1995 P.O. Box :3:3:36 Iowa City. Iowa Phone:[~l 1 ~1) 3,B1 Fax: (319) 3~]7-9823 Mr. Tom Scott, Chairman and Members of the Planning & Zoning Commission City of Iowa City 410 E. Washington Street Iowa City, Iowa 52240 RECEIVED 20 1995 RC.D. DEPARTMENT Re: Sensitive Areas Ordinance Dear Mr. Sco~t and Members of the Planning and Zoning Commission: As you finalize the decision process on the proposed sensitive areas ordinance, we would like you to consider the effect of regulations and what that does to the cost of housing. The Home Builders Association believes that some regulations are clearly needed, but layers of unnecessary regulations will drive up the cost of development. In 1991, a special advisory commission to President Bush found that unnecessary regulations can add 20 to 35 percent to the cost of building a home. A priority for the City of Iowa City is to provide affordable housing to its citizens. Many of our members received a copy of a survey entitled "Barriers to Affordable Housing in Iowa City." The association has not received the results of this survey. But, if polled, I am confident that members would indicate that zoning regulations are too stringent and serve to unnecessarily drive up the cost of housing. Also the amount of time for the approval process for a subdivision and even a simple permit for a remodel project has increased drastically. We ask you to review the time frame and develop a spreadsheet on regulatory costs and how that affects the cost of building a home. We also ask that you look carefully at the sensitive areas ordinance and consider the costs that it will take to implement this ordinance. AS you are well aware, the sensitive areas ordinance will require additional staffing trained in these sensitive areas, the review time for a site with environmental areas will be longer and experts in vadous fields will require compensation. A monitoring system will need to be implemented and public education will be essential. Will this increase the cost of housing? Will iowa City be able to compete in the marketplace? The cost of housing in Iowa City is already the highest in the state and possibly the nation. Should we be asking ourselves why? Last week we received a copy of minutes dated July 25, 1995, indicating that the Home Builders Association is always critical of every proposed ordinance. This statement is incorrect. We strongly believe that sensible, appropriate, balanced guidelines at all levels of affiliated with NATIONAL ASSOCIATION OF HOME BUILDERS & HOME BUILDERS ASSOCIATION OF IOWA Page 2. Mr. Tom Scott Members of Planning and Zoning Commission September 20, 1995 government will enhance our community and provide an opportunity for developers and builders to supply affordable housing to its citizens. A few examples of our support recently include the Design Overlay Zone where HBA of IC recommended that zones affected in the oreday be restricted to the CB-5 and CB-10 zones. I believe that the commission is currently considering our recommendation. We have also hired an engineering consultant to present a proposal to the Board of Appeals dealing with wall bracing. HBA of Iowa City is paying for this consultant. We have made a recommendation on the exterior stairwells and corridors ordinances which will be considered by city staff, council, design review, HBA members and life safety people to review suggested language for the ordinance. In closing, the Home Builders Association is not in favor of this ordinance as it is currently drafted and ask that it be continued to be reviewed at the committee level. Sincerely, Emie Galer President TOTRL P.01 Melody Rockwell, Associate Planner of Iowa City City of Iowa City 410 East Washington Street Iowa City, IA 52240 RECEIVED 26 1995 RC;.D DEPARIMENT September 22, 1995 RE: Draft Sensitive Areas Ordinance Environmental Advocates thanks the City's Urban Planning Staff and the Sensitive Areas Ordinance Committee for their efforts in drafting the Sensitive Areas Ordinance. It shows a true commitment by the City for intelligent and environmentally sensitive development. We generally support the draft. However, we do feel that, as written, it may compromise too much to development's interests by allowing for compensatory mitigation, minimal buffer requirements, and reduction of buffer requirements under rather vague and unwarranted conditions. Also, the 100-year floodplain should be included as a sensitive area in the ordinance, even though regulations pertaining to development in the floodplains is already covered under the City's Floodplain Management Ordinance. We offer the following suggestions for improving the ordinance so that it better meets its intended objectives as listed in Section 14-6K-1 :A (page 1): 1) We recommend that the 100-year floodplain should be listed as a sensitive area under Section B. l.a. (page 1 ) and should be included as an additional section (Section I Floodplains:, between H. Stream Corridors and J. Steep Slopes). Under this new section, the reader of the ordinance can be directed to the City's Floodplain Management Ordinance for details. This addition will not add substantially to the length of the ordinance and will at least recognize the floodplain as a sensitive area, which everyone agrees it is. 2) Condition la on page 10, which reduces buffer requirements for wetlands that are less than 5 acres, is scientifically unjustified and should be removed. As Klaus Richter, wetland ecologist, states, "It's not the size of the wetlands, but their location and use in the landscape that is critical." Smaller wetlands may require as much if not more protection because they have less capacity to absorb pollutants camed by ranoff (Northcurt, 1995). 3) We do not support compensatory mitigation of wetlands and recommend that it be removed under Section 4. "Wetland Mitigation" on page 12. Rarely do these reconstructed wetlands resemble the original ones that are destroyed. Assurances that they are constructed properly requires years of costly monitoring and studies that are usually not carried out by the developer. 4) Section 3.b.4. on page 11 should state that the City "will consider" not that it "may consider the following." 5) There should be a rational basis for the stream corridor buffer requirements given in Section 4a., page 15. For example, the U.S. Fish and Wildlife Service recommends a buffer width that is two to five times the width of the stream channel or a minimum of 50 feet based on their studies of wildlife needs (Firehock and Doherty, 1995). A study recently conducted by the Smithsonian Institute for buffer requirements between agricultural land and the Chesapeake River and Bay found that a minimum buffer of 60 feet is required to protect the Bay from phosphorous and nitrogen loadings carried by stormwater runoff (phone conversation with Tom Mardoch of Adopt-a-Stream Foundation). Perhaps these buffer requirements or something based on other scientific studies should be used. We realize that determining the exact width of a buffer that is effective in protecting the physical and biological integrity of the adjacent sensitive area is difficult and is not an exact science, but studies have established what are considered to be minimum requirements. Buffer widths based on these n~nimum requirements should be used instead of the less substantial requirements given in the Draft. 6) The conditions given for reducing stream corridor buffer requirements are unclear as stated in Section 4.b. (page 15) and we recommend that they be clarified, if not removed completely. Why would buffer requirements be reduced if "significant vegetative cover" is not present? Benefits of a buffer could still be realized even without "native trees or prairie remnants." They would still offer some protection to the stream corridor from conventional landscaping in which lawn chemicals are used. If reductions in buffer requirements must be allowed then "significant existing vegetative cover" (Section 4.b. 1.a., page 15) and "enhanced vegetative cover" (Item 4.b. 1 .c., page 16) should either be defined in the Definitions section or refer to some supporting City Manual where they are defined. Also, Section 4.c. on page 16 should state that the City "will consider" not that it "may consider the following." Very~ruly Yours, Vincent r~eary - - ~"/ -' Member, Environruefft fl.~Advocates City Council Board Members, Environmental Advocates Reference Northcutt, G., "Working Under Water," Erosion Control, March/April 1995, pp. 49-61. SEPT 7, TOM SCOTT CHAIRMAN..PLANNING AND ZONING COMMISION CIVIC CENTER, IOWA CITY, IOWA 1995 TOM SCOTT ;tND MEMBERS OF THE COMMISSION: THE QUESTION: "DO WE NEED ANOTHER ORDINANCE TO PROTECT THE TREES AND THE ENVIRONMENT?" BUT THERE ARE OTHER QUESTIONS THAT MUST BE ANSWERED BEFORE THE FIRST QUESTION CAN BE ANSWERED... WHAT IS THE GREATEST THREAT TO EXISTING IOWA CITY TREES? ONE ANSWER: DISEASE, DEER, BEAVER, FIRE, FLOODING AND DROUGHT SECOND ANSWER: THE CITY OF IOWA CITY THIRD ANSWER: UTILITY COMPANIES FOURTH: CONSTRUCTION AND TREE MAINTENANCE DAMAGE LETS TALK ABOUT THE DISEASE: EVERY ELM TREE IN IOWA CITY WILL DIE EVENTUALLY. THE ENTRANCE TO HICKORY HILL PARK ON FIRST AVE SHOWS 20 DEAD ELM TREES AND THE CITY DOES NOT HAVE THE TIME, MONEY, OR INCLINATION TO REMOVE THEM. I HAVE FIVE HUGE BUT DEAD ELMS JUST NORTH OF HICKORY HILT. LPARK ON 1ST AVE THAT WILL BE REMOVED SOON. IN MY 40 ACRE TIMBER BEHIND THE MAYFLOWER THE OAK WILT DISEASE KILLED 40 TREES LAST YEAR AND APPROXIMATELY THE SAME THIS YEAR. SINCE THE WILT IS SPREAD UNDERGROUND THRU THE ROOT SYSTEM, PROMPT REMOVAL OF DEAD OAK IS ONE PREVENTION.. THE MAJORITY OF THESE OAK TREES ARE BETTER THAN 12" IN DIAMETER BUT MANY ARE MORE TMAN 36" IN DIAMETER. ONE POSITIVE NOTE ON THE LOSS OF THESE TREES IS THAT THE REMAINING TREES LOOK BETTER AND THE CLEARING IS THE BEST PART OF THE FOREST BECAUSE THE GRASS IS GROWING AND THE SUN FILTERS THRU. I CLEARED OUT 40 DEAD OAKS LAST YEAR BUT HAVE NOT DONE ANYTHING THIS YEAR. PAGE TWO: LET'S TALK ABOUT DEER AND BEAVER: TREES CAN NOT BE PLANTED IN IOWA CITY WITHOUT A WIRE PROTECTION SYSTEM AROUND THE TREE. DEER KILL THE TREES BY FEEDING ON THEM AND BY RUBBING THEIR HOP=NS ON THE TRUNKS AND GIRDLING THE TREE. ON THE RIVER FRONT ALL TREES MUST BE SURROUNDED BY WIRE SO THE BEAVER CAN NOT CUT THE TREE BY CHEWING THE BASE. ALSO: ON THE RIVER FRONT THE RIP RAP BEING DONE BY THE CITY ON~ ONLY ONE SIDE OF THE RIVER WILL CAUSE RIVER BANK EROSION ON THE OTHER SIDE OF THE RIVER AND THE HUGE RIVER TREES WILL BE UNDERMINED AND WILL FALL INTO THE RIVER. LET'S TALK ABOUT THE CITY OF IOWA CITY: STREETS HAVE TO BE WIDENED AND PAVED ETC. THE LOSS OF ~'REES UNDER THESE CONDITIONS IS SUBSTANTIAL. THE STREET WIDENING AT THE NCS ENTRANCE ON NORTH DODGE ST. TOOK OUT FIVE HUGE OAK TREES. THEY BELONGED TO THE CITY WHEN REMOVED BUT WERE MINE FOR THE PREVIOUS 20 YEARS. THE MAINTENANCE AND MOWING AROUND THE TREES ON SCOTT BLVD SHOWS SEVERE DAMAGE TO THE BASE OF THE TREE FROM MOWER AND WEED EATER USE. YOU ARE INVITED TO INSPECT THE REST OF THE TOWN. SEVERAL YEARS AGO ON GREEN MOUNTAIN DRIVE I DID A SUBDIVISION WHICH REQUIREED A "MARY NEUHAUSER SWAMP". IN ORDER TO GET THE REQUIRED WATER STORAGE CAPACITY SEVERAL ACRES WERE NEEDED. THESE WERE WOODED ACRES IN THE REAR YARDS. CITY SPECIFICATIONS REQUIRED THAT THE "SWAMP" NOT HAVE ANY TREES. WE HAD TO REMOVE MORE THAN 120 TREES FROM THE BACKYARDS LATER--THE CITY REQUIRED THAT I PLANT 5 TREES ON THE TOP OF THE DAM. THAT ORDINANCE IS STILL ON THE BOOKS. "THOU SHALL NOT PLANT TREES IN STORMWATER BASINS". LETS TALK ABOUT UTILITY COMPANIES: IMPROVEMENTS TO THE OVERHEAD UTILITY LINES IN IOWA CITY REQUIRES THE TOPPING, THE CUTTING THRU OR THE REMOVAL OF STREET TREES. UNDERGROUND UTILITY INSTALLATIONS IN NEW SUBDIVISIONS DO NOT HAVE THESE PROBLEMS. PAGE THREE: LETS TALK ABOUT CONSTRUCTION AND TREE MAINTENANCE DAMAGE! PROTECTION OF THE EXISTING TREES CAN BE DONE BUT THE CONTRACTORS MUST HAVE THE KNOWLEDGE TO DO SO. ONE CAN NOT PARK UNDER A TREE, ONE CAN NOT PUT A LOAD OF GRAVEL OR SAND AT THE BASE OF A TREE, CEMENT TRUCKS CAN NOT CLEAN OUT THEIR TRUCKS AT THE BASE OF THE TREE. A FENCE SHOULD BE PUT AROUND THE DRIP LINE OF EACH TREE THAT IS TO BE SAVED. A TREE CAN NOT BE SAVED TWO FEET FROM A FOUNDATION. LET'S JUST FACE THE FACTS AND REMOVE TREES THAT CAN NOT SURVIVE. THE CITY CAN NOT REQUIRE THIS BY ORDINANCE...IT WILL TAKE EXAMPLE AND EDUCATION. IN MY LAST SUBDIVISION THE FAVORITE PARKING SPOT FOR THE CITY INSPECTOR WAS UNDER THE BIG OAK TREE. A FENCE WAS PUT AROUND THE TREE TO PUT A STOP TO THAT PRACTICE. LET'S LOOK AT THE ENTIRE CITY: SINCE THE CITY OF IOWA CITY F~AS A GOOD SHARE OF THE WOODED LAND AND THE UNIVERSITY }{AS ABOUT 30% OF IOWA CITY (WOODED AND NOT WOODED) AND ALL SINGLE PARCELS OF LAND ARE EXEMPTED, IT SEEM~ THAT THE REMAINING 10% IS THE SUBJECT OF ANY PROPOSED ORDINANCE THE LAND OWNERS AND THE DEVELOPERS OF THIS LAND KNOW THE VALUE OF A TREE ON A TRACT OF LAND. THEY HAVE AND WILL CONTINU~ TO PROTECT THIS VALUE. PAGE FOUR: NOW: LET' S TALK ABOUT COSTS WHAT WILL IT COST TO IMPLEMENT THIS ORDINANCE? LET'S FIGURE ONE PERSON SCHOOLED AND EXPERIENCED IN TREE MANAGE~ENT, A NICE WHITE CAR, A SECRETARY AND A FULL TIME HELPER. I ESTIMATE $110,000 PER YEAR. WHAT IS YOUR ESTIMATE? I WOULD RATHER SPEND T}{IS MONEY ON PLANTING NEW TREES AND TAKING CARE OF EXISTING CITY TREES. ATTACHED ARE EXCERPTS FOR THE 10 LBS OF LITERATURE COLLECTED BY THE STAFF COVERING COSTS AND GOALS. BOTTOM LINE: WE DON'T NEED THIS ORDINANCE AT THIS TIME. IT PINPOINTS TREES IN CERTAIN AREAS AND EXEMPTS OTHERS. COOPERATION AND EDUCATION WILL FURTHER THE CITY GOALS OF TREE PRESERVATION° IT IS COSTLY. IT WILL BE THE FIRST TO GO DOWN THE DRAIN WHEN BELT-TIGHTENING SETS IN VERY SOON. UNFORTUNATELY THE CITY CAN NOT TA~{E CARE OF THE PROBLEMS THAT IT HAS NOW WITHOUT ADDING NEW PROBLEMS TO ITS AGENDA. THE CITY HAS ADEQUATE ORDINANCES TO DO THE JOB REQUIRED WITHOUT AN ORDINANCE CALLING FOR COERCION, FINES AND PUNISHMENT AS THE INCENTIVES. UC/E~ECTIVELY SUBMITTED: R. GLASGOW /I 834 NO. JOHNSON S~ IOWA CITY, IOWA 5~F240 TREE PROTECTION ORDINANCES: A CHANCE FOR EDUCATION, COlVI~tUNICATION AND COOPERATION Christian $Iems Lasting Woodlands, Inc. Many Minnesota communities have recently passed or will soon pass an ordina~c~ that is meant to preserve and protect trees where people build. Myjob is to ~ive you a reg/onal perspective on the k~ue of tree ordlnances. Rather than give you a clause-by-clause account of the ord~n.nces currently on the books (a publication with many existing ordinances will be available through thi_q conference), I am going to make some general observations based on my experience working in a variety of communities with groups on different sides of the fence. My hope, and the objective of Lasting Woodlands, Inc., h to save as many construction site trees as possible in developing communities. I am convinced that the best way to accomplish this is not through antagonktic activism and efforts to "shut down" development. That doesn't accomplish anything, Development marches o~, and builders are more likely to wipe out all the trees in their path and eliminate them as an issue if they come under heavy fire from environmentalists. Too often an ordinance becomes the battleground between builders and environmentalists. The key to saving trees is the cooperative exchange of information between many groups of people-builders, arborists, concerned citizens, 'civil eo~neers, planners and others. Potentially, a tree ordinance is the ideal tool to accomplish this end. But all too often htmmn emotion and personal ~nimosities get in the way of constructive legislation- I've seen it happen over and over in the Twin Cities area. Here then are the three tenets of my overall philosophy (my "regional perspective") on tree ordinances: I. EDUCATION IS BE'rrE~ THAN PENALIZATION. How can we expect developers and builders to save trees when many of them don't know the kinds of actions thor kill them? No penalty, no matter how hi& can bring a tree back to life once it has been damaged during construction. Education, the transfer of information, is the most important component in any tree protection program. People can save trees only when the), know how. Las~ing Woodlands is based upon the idea that it h better to work with people than aga/nst, Too often good-hearted people who ar~ worried about the lucre of their coremunits woodSntis t. ak~ a h~d line against development in general ~nd corotruction /n particular. I say 'too often' because ~/s counter-productive. Developers and builders make the/r living in a vola~e, boom-or-bust industry. Variables/n the way they do business such as restrictiota, regulations and ordinances add t/me to each job. They feel squeezed because the additional costs associated with these variables may or may not be recovered when the project is sold at market price. They naturally feel that people who take a hard/inc against them don't understand their industry and are trying to run them out of business. They are unlikely to adhere to any ord|n~nce regulations when this/s the situation. However, when the writers of an ordinance make an attempt to inform rather than punish, when they make an honest effort to learn the construction bnsines~'and teach tree preservation within the context of the real world (as the builders see it), the story can be very different. People respond positively to efforts to meet them halfway, and like to be supplied with up-to-date information that helps them adapt to a changing marketplace~ When the nature of ~he relationship between concerned people and construction indusu7 folks h one of cooperation and education, a lot more trees get saved. How can urban foresters and arbo~ists teach tree preservation? While no builder has to read Un/versity of M/nnesota ~tension publications or' Department AgdcuRure publications about construction damage and oak wilt (excellent though they are), and many (believe it or not) don't spare the time to read every Lasting Woodlands word-for-word, all must read the ordinance ~elf. By way of outlining the process by wh/ch buLlden are to save trees the ordinance can actually teach basic tree preservation techniques. Rather than simply dole out penalties for each tree lost, an ordinance can mandate practices that save trees and teach the fundamentals of construction damage. An ordinance can't, and should not ever try to, make builders professional foresters or arborists. It can, however, teach the basics and lay the groundwork for continuing cooperation and education. A lot more trees will be saved when the tone of an ordinance switches from punitive to cooperative. IL PRESERVATION IS PREFERAJiLE TO REPLACEMENT. Common sense tells us it makes more sense to concentrate on preserving ex/sting mature trees than it does to try to replace the lost forest tree by tree. Old trees are better than young. Or, as our friend Don Willeke says, "the big trees in our towns today are the only ones we will ever see." The idea of foalsing on sav/ng old t~ee~ seems -~lmple; but )omet/me~ in ~e~ p~h b~de~ for developmere (w~ch ~ ~d of i~ ~ ~C~b~de~ ~e o~en p~hed for ~e "~" of o~e~), people who ~te orals lose rite new ~e~ bede it ~ a p~ for b~ders ~d bede it ~ cos~y, be~m~ ~e pr~d Once again people with the best intentions pass a counter-productive policy into ord!nanee. The tree species available at the nursery Lu the caliper sizes most often specified by ordinances are not the same as those that are lost during eonstructlon. The forest is never the same and the whole issue of replami_ng becomes another bone of contention, an issue that drives a wedge between the tree care and construction industries, further h~ndering the exchange of important infot~ation_ An orclln~uace should focus on the trees we have. It should not use the threat of huge planting expenses as a threat held over the heads of builders who axe often punkbed for the actions of civil engineers, utilities and others. If replanting needs to be done, it should focus on doing it cost effectively (i.e. smaller stock) and in a more ecologically sound manner (native species). Trees should never be a paMshment, they should be the reward. III. TKE PROCESS BY WHICH AN ORDINANCE IS PASSED IS MORE IMPORTANT THAN WHAT IT ACTUALLY SAYS. lxfformation saves trees. No matter what an ordinance says, [f information doesn't flow effectively from tree care people to construction people, trees will die. The process of dragting an ordinance is the perfect opporttmity to initiate the relationships between different people and groups that will determine the ordinaace's long term sutter. If a builder doesn't have the name and number of a tree care person who can answer a spuc-of-the-moment question, they might make a fatal mistake. The ordinance Call have all the provisions for p.nlshment it wants, but unless it facilitates communication it simply won't accomp!i_~h its goals. The process of gathering the information necessary to write an ordinance that encompasses every aspect of development and construction is a great opportunity for foresters to meet engineers, for builders to meet foresters, for engineers to meet concerned citize~ etc. This takes a while but the effect is a better understanding of the parameters each group must work w'jthln; and therefore a better ordinance. In the process, groups and individuals talk to each other who traditionally have worked separately and even at cross purposes. In the end, the words s~t to paper are not that important (except in their capadty to teach). It Is the quality of the relationships formed thl'oush the development and implementation of the ordinance that ultimately determt*~ its str.~es~ Conclusion-, The writers and a tree protection ordinance must first ask themselves the question, "Are we here to save as man), trees as we can, or do we simply want to punish development?" If the real goal h to stop further development, they are better off writing legislation under which the comm.nlty purchases the land in quition. TryinS m stop development with a tree ordinance is tem'bl¥ counter-productive. Development marches on, and the information nece,ss~ to save trees gets lost in a morass of emotions and politics. Trees will continue to die, no matter what pun/shments the writers cemm~n~:L If the real goal is to save as many trees as possible, the writers' best bet is' to work with the constraction community, exchanging the information necessary to save trees and forming the positive working relationships that will serve the forest well for man), years into the future. -24- Tree protection programs should be admin. istered so as to reduce the number of ,tela- rians and to punish violators quickly and effectively. To reduce the number of ~iola- tipns. programs should be accompanied b'.' continuing education. stressing the benslits trees in the urban environment and outlining the elements of the prograrm A requirement that notices orapolications for tree removal be postecl'-6~the site would alert citizens and en. eaurage their p~'~icipation at a phase in the decision process where their comments would be most useful. Finally. for administration to be effecti,.-e. staff should be adequate in n_.q.mbers and train. in,~ so that a ,ntinuing. active enrorcement program. involving periodic systematic in. spection. could be conducted and reliable professional advice could be given. Protection programs should require that during construction adequate measures be taken to prevent damage to trees designated to be kept. Ira tre.e de_s~patedto_b._e,kept. Lis dam. aged and subsequ.ently dies.____t_he landowner sfi~ d~-be r~-quired to replace it and to t6. e Ioc~a!_go. xerrlRl~.nt._~ expenses in super,, isle8 the replacement. The prevalent practice of Idv. .,. ing a fine on the owner does not usually result in any improvement to the environment. '- ~'"~R!}~'~ ,<~"~.'?}:';~'~f'}' '~¢t~'~:~:~ ?{"~- ~aE;~'~'~}'~,' ",',~.' -: ' ..... ?,'. ; .;; .: '-~q "r ..... '~'" .... ' ' "- '." ': ~"<'~P" ~': -,' ' - -'' ' ' '-'-" ;:tn~.~,~biyMt~eed[or~o?fUtorp&fi~6~:}~ he ,- .;~;~ ::'.;.:'A;:;,' -i' : - : · ;,' :..7; "bdu"'" '" ~" ,.,~ -. ,~P ,.,....~ .,, -- ....~ . ...~{f.~eah ~fiLhB~ ~ ~aLlon Meed on mmket vMue '.' TL , ~,~ ~ove)ppe~a, ~W0[R, aBGV01~bi 9- ',. ~¢}(.--~t.-,'~,4).:., ~ .... :'1' '*"-', L" - " ~,~- -' .~ ~o~, ~t~ ~'~ ~d adth ~61~ ~nltb~ J ~ah' . ' .~.~.: epe~mcn~tona, rosa or ~lde~a~ width, se~ back ~ :: .... ~k~k tA G~a~ 'FLa,, ~;oL:~,~'~'a;h ~a~=L~.. ' - "~: ~8~nce6 and almU~ r0q.hemen~ when ~no~ ~ro~dingcon~tionsforzoMngchaugesordenybg ~F e t' ' Stop Wo~k orders Delaying occupancy pennR Ilolding rimds in escrow such ae 'Building With Trees Wo~ksbol," (gee page 8). , . b,' Credits against pineting or landscaping when large, e~a~g flees ~e ]e~ on si~ ~d adeqttately pr~ rec,d. Po${:tng of performance bonds (including the ~uaran- teed survtval of trees Within s given period, such fis 18 msuths}. Awards end publicity for successful transplanting. tree protection, wildlife habitat preservation and other achievements. ~00,000/~00,000," into final form. I ~O not know and probably will never k~ow more p~ple will b~ leaving Iowa City and move beyond th~ two m$1~ limit. goin~ oB wl~hin ~hair own ~ys~em. ~o~ ~ a bure.uczatiu monstrositY, This doe~ not include th~ wi%h ~he ~&me work ~orce we have, council and ~ef~ find waya ~o downsize city governmept, priva~iz~ am ~uch as %hey can and become competitive in t~e market-;Lace, ~ovi~ i~o ~he 21st century with co~on sense Xn closing, I request postponing the final vo~e on ~his ordinance un~£L ~e city counul~ election ~s over, or dropping the ordinance nOW, Burial Grounds: When an archaeological site contains a burial ground, the State Code of Iowa requires that the State Archaeologist inspect the site. The State Archaeologist will determine the significance of the burial ground and whether or not human remains may be disinterred. If the archaeologist determines that the human remains should not be dis- turbed, the portion of the property containing the burial grounds, including a 20 foot buffer around the burial grounds, shall be set aside as permanent, private or public open space. Discovery of Unrecorded Archaeological Sites: If historical objects or human remains are discovered during the course of grading or construction, it is required that the State be notified. The State may take steps to excavate and preserve any historical objects, if practi- cal. In the case of human remains, the State Archaeologist will determine whether or not the human remains can be disinterred. If it is determined that the remains cannot be moved, the burial ground will be returned to its pre- construction condition. Sensitive Areas Ordinance The Sensitive Areas Ordinance was developed by the Sensitive Areas Committee, with assis- tance from City staff. The participants on the eight person committee included representa- tires from the Planning and Zoning Commis- sion, the Riverfront and Natural Areas Corn- mission, developers, environmentalisis, and the general public. The Sensitive Areas Ordinance is designed to protect environmentally sensitive features within Iowa City in a way that accommodates development and creates livable neighbor- hoods. The ordinance is structured to stream- line environmental review. Most sensitive features are evaluated administratively through the site plan review process. Review of properties containing wetlands, 25% + slopes, and/or woodlands located in conjunction with other sensitive features are managed through the planned development rezoning process. The sensitive environmental features protected by the Sensitive Areas Ordinance are: Woodlands · Archaeological sites Wetlands o Hydric Soils Steep slopes · Stream corridors , Prairie remnants This brochure is for informational purposes only, and is not meant to be a substitute for the actual regulations. A copy of the regula- lions is available for review at the Iowa City Public Library, or may be obtained from the Department of Planning and Community Development in the Iowa City Civic Center. DRAFT City of iowa City Sensitive Areas Ordinance informational Brochure Archaeological Sites C:ty of Iowa City Urban Planning Division 410 E. Washington Street Iowa City, Iowa 52240 Tete: (319) 356-5230 Fax: (319) 356-5009 Archaeological Sites Archaeological sites possess cultural and historical value for our community. The purpose of regulating the development activity on lands which comain archaeological sites is to: Help assure that the sites which contain im- portant information regarding the community's pre-history and history are identified studied, protected, and/or prop- erly excavated when appropriate. Allow for the State Historic Preservation Officer and, where appropriate, the State Archaeologist to have the opportunity to dc~h-nent and study important archaeologi- cal sites. Allow for the consideration of archaeologi- cal sites in the planning and development of a properiy. This will minimize delays when it is determined that the study or excavation of such sites is necessary. Provide for the early identification of hu- man burial sites to help ensure that they are not violated, according to the regulations of the State code of Iowa. Early identification will also help to avoid unnecessary delays in development due to the discovery of burial sites after development has begun. Where are Archaeological Sites? The Sensitive Areas Inventory Map (available for viewing at the public library or at the De- partment of Planning and Community Devel- opment) shows with a red number how many archaeological sites are within each quarter mile section of the City. The State of Iowa does not allow the specific location of the archaeological sites to be shown, in order to prevent exploitation of them. If there is an archaeological site located within the quarter mile section where development is proposed. the City will forward the plan to the State Historic Preservation Officer, or the State Archaeologist. The State will then notify the City if a recorded archaeological site exists within the area of the proposed development, and if it is of archaeological importance which requires further study by tile State. Regulations Archaeological Sites: If it is determined that further study of an archaeological site is necessary, the City may approve the develop- ment on the condition that a State-approved archaeologist be allowed to study and, if appropriate, complete an excavation of the site. The State will have a period of up to thirty days (frost-free) to complete their study and/or excavate the site. Development activi- ties outside of the archaeological site area will not be delayed. Significant Archaeological Sites: A signifi- cant archaeological site is one of pre-historic or historic significance which is determined to be eligible for the National Register of Histor- ic Places. If the State determines that the property contains a significant archaeological site which cannot be studied and excavated in the thirty day period, the development plan may be approved subject to an archaeological assessment plan. This plan would specify the period of time a State-approved archaeologist may document and/or excavate a site. If the site is found to be of state or national significance, an attempt should be made to design the site plan so as to preserve the site as private or public open space. NOTICE OF PUBLIC HEARINGS Notice is hereby given that public hearings will be hold by the City Council of Iowa City, Iowa, jointly with the Broadband Telecommuni- cations Commission of the City of Iowa City, Iowa, on the 24th day of October, 1995, at 7:30 p.m. in the City Council Chambers at the Civic Center, 410 E. Washington Street, Iowa City, Iowa; at which hearings the City Council and the Broadband Telecommunications Com- mission will receive comments from the public regarding a proposed Franchise Agreement between the City of Iowa City and Cablevision VII, Inc., and regarding a proposed ordinance amending Title XII, entitled "Franchises," of the Code of Ordinances of the City of Iowa City, to repeal Chapter 4 and to adopt a new Chapter 4 to be known as "Cable Television Franchise Enabling Ordinance." These documents are on file and available for public inspection in the office of the City Clerk at the above address. Persons wishing to make their views known are encouraged to appear at the above-mentioned time and place. MARIAN K. KARR, CITY CLERK FRANCHISE AGREEMENT BETWEEN ~ CITY OF IOWA CITY, IOWA, A MUNICIPAL CORPORATION, CABLEVISION VII, INC. AN IOWA CORPORATION II. III. IV. V. Vl. VII. VIII. IX. X. Xl. Xll. Xlll. XlV. XV. XVl. XVll. XVlll. XlX. XX. XXl. TABLE OF CONTENTS NONEXCLUSIVE FRANCHISE ..................... GRANTED TO CABLEVISION VII, INC ............. RIGHT OF CITY TO ISSUE FRANCHISE ......... TERM .................... , ....... FRANCHISE NONEXCLUSIVE ............ DEFINITIONS ....................... SERVICE AREA.'; .................... SYSTEM AND CAPACITY ............... CONSTRUCTION ....................... SYSTEM SERVICES AFTER REBUILD .................. ACCESS CHANNELS, EQUIPMENT, FACILITIES, AND SERVICES ...................................... 1 1 2 2 2 2 3 4 8 9 10 INTERCONNECTION ............................... 12 SUBSCRIBER INFORMATION AND POLICY ................ 13 NON-DISCRIMINATION ............................. 15 RATES ......................................... 1 § FRANCHISE RENEWAL .............................. 1 5 POLICE POWERS ................................. 16 FRANCHISE FEE AND PERFORMANCE BOND .............. 16 REGULATION .................................... 16 REMEDIES ...................................... 1 7 COOPERATION ................................... 18 XXII. XXlII. XXlV. XXV. XXVl. XXVlI. XXVlII. XXVlX. WAIVER ................ CUMULATIVE PROVISION. NO LIAB!LITY ......... NOTICES ............ CAPTIONS ........... NO JOINT VENTURE .... ENTIRE AGREEMENT .... SEVERABILITY ....... -. 18 18 18 19 19 19 19 .. 19 APPENDICES System Design Specifications Drop Technical Parameters Delivery System Equipment List Converter Specifications Test Equipment Preventative Maintenance Program Design Standards Franchisee's Construction Manual Permit and Construction Process Cutover Process Programming During Rebuild Period Programming Categories After Rebuild Free Drop Locations Position of Access Channels During and After Rebuild Access Publicity Business and Repair Hours BROADBAND TELECOMMUNICATIONS FRANCHISE AGREEMENT NONEXCLUSIVE FRANCHISE. A. This section grants a ten-year nonexclusive Franchise to operate a cable television system to Cablevision VII, inc. (hereinafter referred to as Franchisee). The Franchise granted shall, as set forth below, be subject to the provisions of the Broadband Telecommunications Enabling Ordinance and this Franchise Agreement. B. Subject to Section 626 of the Cable Television Consumer Protection and Competition Act of 1992, as amended, the City Council reserves the right to refuse to select a Franchise holder if such refusal is subsequently deemed to be in the public interest. C. If the terms and conditions specified in this Franchise conflict or modify the Ordinance, the provisions of the Ordinance shall apply. II. GRANTED TO CABLEVISION VII, INC. A. Purpose. The purpose of this section is to award a Franchise, for a cable television system to Cablevision VII, Inc. Cablevision VII will endeavor to provide top quality cable service. B. Enactment. Franchisee is hereby granted a nonexclusive Franchise to operate a cable television system within the City in accordance with the Ordinance of this title, which establishes standards, regulations and procedures for the granting of a cable television Franchise, this Franchise and the rules and regulations adopted by the Iowa City Broadband Telecommunications Commission, all Ordinances of the City and all applicable rules and regulations of the Federal Communications Commission and the State. C. Effective Date. This Franchise shall not become finally effective until the Franchisee files an acceptance in writing with the City of Iowa City. The Franchisee shall have up to sixty (60) days from the date the franchise is signed by the Mayor to provide such written acceptance. Immediately upon the taking effect of this Franchise Agreement, the prior franchise granted to Cablevision VII, Inc. shall be superseded and of no further force and effect; provided, however, vested rights relating to billings and the City's rights to accrued franchise fees shall not be affected thereby. D. Use of Public Ways. For the purpose of operating and maintaining a cable television system in the City, Franchisee may erect, in, over, under, or upon, across, and along the public streets, alleys, and ways within the City such wires, cables, fiber optics, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable television system in the City and in accordance with this Franchise and the Ordinance. III. RIGHT OF CITY TO ISSUE FRANCHISI~. Franchisee acknowledges and accepts the legal right of the City to issue this Franchise. IV. TERM. The term of the Franchise shall be for a period of ten (10) years from the effective date, unless sooner terminated as provided in the Ordinance, at which time it shall expire and be of no further force and effect. FRANCHISE NONEXCLUSIVE. Consistent with the requirements of the Ordinance, this Franchise shall not be construed as any limitation upon the right of the CiW to grant to other persons rights, privileges, or authorities similar to the rights, privileges, and authorities herein set forth, in the same or other streets, alleys, or other public ways or public places. The City specifically reserves the right to grant at any time during the term of this Franchise or renewal thereof, if any, such additional Franchises for a cable communications system as it deems appropriate. In the event the Franchising Authority enters into a franchise with any other person or entity other than the Franchisee to enter into the City's streets and public ways for the purpose of constructing or operating a cable television system to any part of the service area, the material provisions thereof shall be reasonably comparable to those contained herein, taking into account the size and population of the franchised area, including but not limited to, franchise fee, external costs, access fees, if applicable, design, term, density requirements and system capacity requirements. VI. DEFINITIONS. All definitions set forth in the Ordinance pertain to this Franchise and shall be relevant to the purposes and meaning of this Franchise. 2 VII. SERVICE AREA. A. Service to all Residents. Franchisee shall offer cable television residences service to all areas of the City which are in the corporate limits of the City of Iowa City and that meet the density requirements under paragraph B of this section, on the effective date of this Franchise. The Franchisee shall provide cable service to Old Capitol Center at the time of the rebuild pursuant to Section VIII herein. The Franchisee shall make reasonable efforts to obtain easements necessary to serve Block 81 and shall provide cable service to Block 81 at the time all necessary easements are available, but no sooner than at the completion of the rebuild pursuant to Section VIII herein. The Showers Addition and/or Camp Cardinal Road shall be served within six (6) months of when the City extends City services and requests services to the Showers Addition and/or Camp Cardinal Road respectively. B. New Residential Construction. Franchisee shall extend service to all new residences in all Unwired developments within six months of a request of a subscriber in an area to be served by underground construction and within three months of a request of a subscriber for areas to be served aerially, whenever density of at least twenty (20) residential dwelling units per cable plant mile; as measured from the existing facilities of Franchisee's cable system in the franchise area. For purposes of this section, density per cable mile shall be computed by dividing the number of residential dwelling units in the area by the length, in miles or fractions thereof, of the total length of aerial or underground cable necessary to make service available to the residential dwelling units in such area in accordance with Franchisee's system design parameters. The cable length shall be measured from the nearest point on the then- existing system. The total cable length shall exclude the drop cable necessary to serve individual subscriber premises. C. Contribution-in-aid. If an area does not meet the required number of residential dwelling units per cable mile, Franchisee shall bear its pro-rata share of the current construction costs based upon the actual number of residential dwelling units per mile. For example, if there are 5 residential dwelling units in a residentially zoned area, the Franchisee's share would be 5/20ths or ~ of the construction cost. The remaining construction costs shall be borne on a pro-rata basis by each cable television subscriber. After completion of the project, should additional subscribers request and receive cable television service, the pro-rata shares shall be recalculated. Any new subscriber shall pay the new pro-rata share and all prior contributing subscribers shall receive appropriate refunds. In any event, at the end of two (2) years from the completion of residential construction in the area, the subscribers shall no longer be eligible for refunds, and any amounts paid in construction costs will be credited to the plant account of Franchisee. 3 D. Service Area. The service area of Franchisee shall be the entire corporate boundaries of the City of Iowa City and include any areas annexed to the City in the future. E. Commercial Service. Franchisee shall, upon request, make service available to all commercial/industrial establishments served aerially which are located within 125 feet of the system at Franchisee's standard installation rate expense. For commercial/industrial establishments served underground or for aerial extensions beyond 125 feet, Franchisee shall, upon request, .make service available on the basis of a capital contribution in aid of construction, including cost of material, labor, and easements. For the purpose of determining the amount of capital contribution in aid of construction to be borne by the Franchisee and the commercial/industrial establishments in the area in which service may be expanded, the Franchisee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of commercial/industrial establishments per 1320 cable-bearing strand feet of its trunks or distribution cable, and whose denominator equals eight (8) commercial/industrial establishments. Commercial/industrial establishments who request service hereunder will bear the remainder of the construction and other costs on a pro-rata basis. The Franchisee may require that the payment of the capital contribution in aid of construction be borne by such potential commercial/industrial establishments be paid in advance. F. House Moving. Franchisee shall, upon the request of the City, move and replace its facilities to accommodate house moves conducted on behalf of the City, at a time and materials cost to the City. Wherever feasible, the City shall use its best efforts to ensure that house moves follow the same or similar path. VIII. SYSTE~ AND CAPACITY. A. System. The parties understand and agree that Franchisee shall construct a cable system which delivers cable television signals processed at 550 MHz (78 channels) utilizing a fiber to the node design or better. The system will be spaced to accommodate 750 MHz in the future. The rebuilt system will use all new fiber optics, and electronic and passive devices. The system will be designed so that there are no more than five (5) amplifiers in cascade. Fiber optic receiver nodes located throughout the plant will divide the distribution of cable signals to 600 homes per fiber node or less. Further, Franchisee will activate 5-40 MHz upstream from each fiber node, as needed upon sixty days notice from the City and upon the completion of the rebuild. Costs for such upstream activation will be treated in the same manner as other rebuild costs. The system shall be designed and constructed in accordance with the design specifications in Appendix A, attached hereto and incorporated by reference. The system shall be operated in accordance with performance standards which meet or exceed FCC regulations. 4 B. Construction Timetable. The rebuild shall be completed within two (2) years of the effective date of this Franchise. Two months prior to the initiation of construction of the rebuild, Franchisee shall provide a neighborhood construction schedule which details the timeframe for construction in each neighborhood and area of the City. C. Construction Oversight. Franchisee will inspect 100% of all fiber and coaxial cable to insure that it meets the specifications of the Ordinance and this Franchise. After the audit of subscriber drops .as specified in Section E. below, Franchisee will inspect 35% of the subscriber drops. The Franchisee shall designate an employee to act as a company representative by responding to public service complaints on a daily basis during the rebuild and provide the City with the person's name and telephone number. D. Compliance with Applicable Law. in constructing, operating and maintaining the system, Franchisee shall at all times comply with the Ordinance and all applicable laws and regulations. E. Drop Audit. Two years after the completion of the rebuild, Franchisee shall have audited and tested ninety-five (95) percent of the subscriber drops in the City and all drops not meeting the standards of the National Electric Code or the technical parameters in Appendix B, attached hereto and incorporated by reference, shall be replaced when found to be substandard. The system shall be designed to allow each subscriber drop to provide service to four (4) television outlets. F. Equipment Quality. Equipment used for the distribution system, headend and reception facilities shall be of good and durable quality and be serviced and repaired on a regular basis and shall at all times be of equal or better quality than the equipment listed in Appendix C, attached hereto and incorporated by reference. G. Converters. Franchisee shall provide, for current replacement needs, a converter equal or better than the Converter specified in Appendix D, attached hereto and incorporated by reference. After the rebuild is complete and up to one year after digital converters are offered by TCI within the State of Iowa to a system of similar size or smaller, excluding experimental and demonstration projects, Franchisee shall make a digital converter available to all subscribers requesting the digital level of service. Such digital converters shall comply with the then national standards for digital technology and shall provide state-of-the-art features equal to those being introduced during the same year in other systems owned by TCI. All programming services exclusively offering adult rated programming shall provide picture and audio scrambling of services not purchased by a specific subscriber. Franchisee shall maintain its trap system until the introduction of the converters described above and be available thereafter, as needed, for subscribers not utilizing converters. The City Council may, in its discretion, extend the time for the Franchisee, acting in good faith, 5 to provide digital converters. The timeframe for providing digital converters shall be extended for any period during which the Franchisee demonstrates to the satisfaction of the City that the Franchisee is being subjected to delay due to circumstances reasonably beyond its control, such as acts of God and labor strikes. H. Upstream Capacity for City Use. Franchisee shall reserve and give the City the option to use the up and downstream capacity on the cable system not to exceed one-half (½) MHz in either direction, to allow the CiW to collect data and other signals from subscriber homes or City sites for non-comme,,cial governmental and educational purposes only. Franchisee shall cooperate with the City on pilot projects and City- wide implementation, including but not limited to, City installation and use of equipment which utilizes a larger amount of bandwidth than described above, if necessary, so long as the actual bandwidth utilized by the City is the same or less than that described above. Franchisee shall allow the City to co-locate necessary equipment on the cable system provided said equipment does not interfere with the system's integrity. The Franchisee shall provide such capacity to the City at a rate which, at a maximum, shall be equal to the lowest rate provided to any commercial customer or subsidiary company. Ongoing maintenance charges will be at cost and at the City's option, such cost will be paid by the City or a third party. I. Emergency Alert. Franchisee shall continue to provide an all-channel audio- only emergency alert system for use by the City, Emergency messages can be initiated from any touch-tone phone with an access code. Franchisee agrees to upgrade the emergency alert system at the Franchisee's own cost, by providing a text crawl on the picture on all channels within five years of the effective date of this Franchise, providing such equipment is available at a reasonable cost, which shall not exceed $15,000. The emergency alert service shall be upgraded throughout the Franchise term as set forth in FCC rules, regulations, or guidelines. The Franchisee shall not be held responsible for any failure of the emergency alert system to operate during any emergency. J. Test Equipment. Throughout the term of the Franchise, Franchisee shall have accessible to Iowa City within a 24-hour period, test equipment equal to or better than that specified in Appendix E, attached hereto and incorporated by reference. K. Ongoing Preventive Maintenance. preventive maintenance program specified in incorporated by reference. Franchisee will comply with the Appendix F, attached hereto and L. Interference on Channels 12 and 19. After the rebuild, Franchisee will not use Channel 19 for video, but for alphanumeric purposes, to avoid interference from radio/pagers. Franchisee will use its best efforts during the rebuild to minimize interference on Channel 12. Franchisee will relocate Channel 12 (Fox) or Channel 13 6 (IPTV) to avoid off-air interference by the end of the rebuild. Franchisee will use its best efforts to locate IPTV on Channel 12, and if possible maintain that channel location. During the term of the Franchise, Franchisee will provide notice to consumers, on how interference problems experienced by customers on specific channels can be alleviated, through TV ads and billing messages mailed to subscribers, M. Satellite Earth Station. The system configuration shall include earth stations which shall ensure the ability to receive signals from operational communications satellites that predominately carry programming services available to cable systems throughout the life of the Franchise. N. Standby Power. Franchisee shall provide 20,000 Watt standby power-generating capacity at the headend. Franchisee shall maintain standby power system supplies, rated for at least two and one-half (2.5) hours duration at all optical node locations in the distribution network. O. Parental Control Devices. Franchisee shall provide to subscribers, upon request, parental control devices that allow any channel or channels to be locked out. Such devices shall block both the video and the audio portion of such channels to the extent that both are unintelligible. The cost to subscribers for parental control devices is subject to FCC regulation. P. Performance Testing. Franchisee shall perform all system tests and maintenance procedures as required by and in accordance with: the FCC; Franchise; Ordinance; Franchisee's standards of good operating practice; and the National Cable Television Association's test procedure guidelines. Q. Technical Standards. The cable communications system permitted to be operated hereunder shall be installed and operated in conformance with the Ordinance, this Franchise, and FCC rules and regulations. Any FCC technical standards or guidelines related to the cable communications system and facilities shall be deemed to be regulations under this Franchise. At such time as the FCC does not regulate technical standards, Franchisee will continue to comply with the FCC standards which were in effect on the effective date of this Franchise. R. Employee Identification. Franchisee shall provide a standard identification document to all employees, including employees of subcontractors, who will be in contact with the public. Such documents shall include a telephone number that can be used to verify identification. In addition, Franchisee shall use its best efforts to clearly identify all field personnel, vehicles, and other major equipment that are operating under the authority of Franchisee. S. Stereo. Upon completion of the rebuild, the system will have the capability and shall provide Broadcast Television Systems Committee (BTSC) stereo signals. 7 IX. CONSTRUCTION. A. System Design Review. The City shall have the authority to review the technical design plans of the system to ensure that the system design meets the requirements of this Franchise, the Ordinance, as well as applicable portions of the City Code governing construction within public rights-of-way and applicable portions of the design standards included in Appendix G, attached hereto and incorporated by reference. Franchisee shall provide the following design information: engineering design maps; key for design maps; system lev(~l design information (e.g., block diagram of headend, satellite or off-air studies, power supply map); test plan for the existing coaxial cable to be used in the system; and contact engineer who will be available to discuss project details. On a case by case basis, Franchisee may use existing coaxial cable which meets manufacturer specifications. Franchisee shall preform end of the line test to ensure that the coaxial cable plant tested performs according to manufacturer specifications. In cases where the cable does not meet such specifications, Franchisee shall replace the cable and shall use its best efforts to minimize disruption to effected subscribers. The City shall protect the proprietary system design information submitted by Franchisee. The Franchisee shall send the design information to the location specified by the City as such maps are available to the Franchisee. Franchisee's regional engineer will review the design with City designated persons. B. Construction Manual. Franchisee shall construct the system in accordance with Franchisee's construction manual. See Appendix H, attached hereto and incorporated by reference. The Franchisee shall follow the permitting process as specified in Appendix I, attached hereto and incorporated by reference. C. Underground Construction. Franchisee shall participate in and use Iowa One Call and ensure that cable is buried at a depth of twelve inches (1 2"). Temporary drops will be buried within one month of installation, weather permitting. D. Consumer Compatibility. Franchisee shall comply with FCC consumer compatibility rules and guidelines and will use its best efforts to provide subscriber friendly technology. The basic tier of service shall be offered in a format compatible with FCC regulations. E. Conversion. Subscribers shall not be charged by Franchiseefor conversion from the existing system to the new system. In the event that special additional or customized equipment is requested by any subscriber or is required to provide such service to any subscriber, Franchisee may charge the subscriber for such equipment. So that customers will experience the least possible interruption of service, Franchisee shall perform the cutover to the new system as specified in Appendix J, attached hereto and incorporated by reference. Franchisee will notify subscribers and the public in general of the cutover, using a combination of at least two of the following: 8 bill stuffers; direct mail; news releases; radio announcements; CSR training; and community bulletin board announcements. Internal wiring shall comply with the Iowa City Electrical Code. SYSTEM SERVICES AFTER REBUILD. A. Initial residential subscriber services. During the rebuild period, Franchisee shall initially provide the same or similar progran3ming as provided in Appendix K, attached hereto and incorporated by reference. B. Additional Services. Upon completion of the rebuild, Franchisee shall provide a minimum of four new services and a good mix of entertainment and information programming generally available to the cable television industry, taking into account the needs and interests of the population of the City of Iowa City. At a minimum, the system shall provide the broad categories of programming specified in Appendix L, attached hereto and incorporated by reference. Prior to selecting all the new services to be offered after the rebuild, Franchisee shall conduct a statistically valid consumer market survey by telephone of 200 randomly selected homes to assess what new programming consumers are most interested in receiving, in addition to those specified in Appendix L. Franchisee shall use its best efforts to provide the programming that had the highest deg?ee of community interest and that would serve the community interests indicated in their own survey and in the consumer market survey conducted on behalf of the City during the renewal process. The results of the consumer market survey will be provided to the City within thirty (30) days of completion. C. Leased Access Channels. Franchisee shall offer leased access channels at such terms and conditions and rates as may be negotiated with each lessee subject to the requirements of Section 612 of the Cable Act. D. Cable Drops and Monthly Service. Franchisee shall provide one free cable drop and free, basic and tier services, excluding premium services, audio services, pay-per-view, etc., to locations already provided with free drops, locations listed in Appendix M, attached hereto and incorporated by reference, and at any other public buildings designated by the City. All non-premium programming and closed-circuit training programming shall be transmitted to all of these locations on the cable system, free of charge. E. Institutional Channels. If allowed by Federal law and regulation, the government and educational access channels shall be provided with the capability to transmit for closed-circuit institutional programming. The Franchisee shall provide an appropriate device for the reception of scrambled institutional programming offered over the subscriber network on the scrambled government and educational access 9 channels to all local government and educational locations receiving free drops and service. The necessary headend equipment for modulation, scrambling, and cablecasting of the closed-circuit signals shall be provided by the Franchisee. Franchisee shall provide channel scrambling as requested by the City and educational institutions on the scrambled government and educational access channels. F. Closed Captioning. Franchisee shall pass through all closed-circuit signals received by the system for the hearing impaired. Closed-caption devices will be provided for sale and installation by Franchisee. G. Interactive Services. Franchisee will offer X'Press*/X"Change services, (one per school) provided that these services remain available to the Franchisee, and a guide to each school free of charge when such guides are available for Franchisee. Xl. ACCESS CHANNELS, EQUIPNIENT, FACILITIES, AND SERVICES. In order to develop and promote public, educational, and government access programming for the system's access channels, Franchisee hereby agrees to provide the following: A. Access Channels. During the rebuild, Franchisee shall maintain the number and position of the access channels as shown in Appendix N, attached hereto and incorporated by reference. Prior to the first subscriber being cut-over to the rebuilt system, Franchisee shall provide the following number of dedicated access channels: three (3) channels for government access; two (2) channels for educational access; and one (1) channel for public access. The Franchisee, shall use its best efforts to maintain the cable channel position of the access channels in existence on the effective date of this Franchise. After the rebuild and upon the City's request, Franchisee shall activate the following additional access channels on the basic tier; one (1) channel for community programming and/or access and one (1) channel for educational access. After the rebuild and upon the request of the City, whenever any public access channels as set forth in this section shows documented proof of performance that they are in use 80% of the cablecast week for any 6 week consecutive timeframe, given at least 8 hours per day, 7 days per week cablecast schedule, with at least 80% (of the time the channel is programmed), unduplicated locally originated programming, the Franchisee shall make such additional access channel(s) available as necessary for access use within 6 months of receipt of request by the City. The City agrees to share the above listed access channels with other communities served by the same headend on a switched basis. Franchisee shall provide automatic switching from a site selected by the City for any switching needed by the City to allow City programming to be viewed within the City while other communities may be viewing other governmental programs. Other communities, such as Coralville, served by the same headend shall have remote switching capability to 10 allow programming to be viewed within their respective municipalities while Iowa City programming continues to be viewed within the City of Iowa City. If Franchisee expands bandwidth, the City reserves ten percent of the bandwidth for public, educational and government access use up to 100 analog channels. Such bandwidth will be made available within six (6) months of a request by the City. The City shall make such request when the governmental, educational, and/or public access entities have demonstrated to the City that such additional capacity is needed and usage meets the formula ,for bandwidth activation specified above. Such additional capacity shall be dedicated for the type of access specified by the City. All active access channels shall be placed on the basic tier of service, unless both parties mutually agree otherwise. B. Access Equipment, Support, and Facilities. The Franchisee shall provide the City with funds in monthly payments for equipment, facilities, and ongoing support for public, educational, governmental access, and community access programming, in an amount not to exceed the equivalent of fifty (50) cents per subscriber per month for the entire term of this Franchise. The City shall provide written notice to the Franchisee of the initial amount to be passed through and any changes in the amount thereafter. Both parties agree that all such funds will not be deducted from the franchise fee. The City agrees that all amounts paid by Franchisee pursuant to this section may be added to the price of cable services and collected from Franchisee's subscribers as "external costs" as such term is used in 47 C.F.R. on the effective date of this Franchise. In addition, all amounts paid under this section may be separately stated on subscriber's bills as permitted in 47 C.F.R. 76.985. Such payments will be made by the Franchisee to the City on a monthly basis C. Access Services. Franchisee agrees to continue to provide to the non- profit corporation designated by the City and/or other entities designated by the City, including the City itself, to carry out the day-to-day operations of public access and community programming, snnual payments based on $149,554.66 annual payment in year one of the Franchise term. Said amount shall be increased successively thereafter annually for inflation for the term of the Franchise. Both parties agree that all said funds for access services will not be deducted from the franchise fee and agree that only the annual inflation adjustments may be passed through to subscribers and may be separately stated on subscriber's bills. This is in addition to the amount specified in paragraph B above. All inflation adjustments shall be based upon the annual CPI-PI published by the U.S. Department of Commerce. All annual payments shall be due January 1st of each year. D. Publicity. Franchisee agrees to provide the publicity services as specified in Appendix O, attached hereto and incorporated by reference. 11 E. Optical Transmission Equipment. The Franchisee agrees to provide one digital, optical transmission package. The Franchisee agrees to connect the optical equipment using coaxial cable or fiber optics with the Library, the Senior Center, Civic Center, and a school site{including but not limited to the permanent access channel(s), the library channel, the public access channel, the government channel, the community programming channel and the educational access channel). F. Closed Circuit Operations. Franchisee shall provide, free of charge, an appropriate device for the reception of scrambled. institutional programming offered over the su6scriber network to schools and government buildings receiving free drops and service. The necessary headend equipment for modulation, scrambling, and cablecasting of the closed-circuit signals on the educational, and government access channels, shall also be provided. Franchisee shall provide channel scrambling as requested by government and educational access channel operators. Franchisee shall provide the City and schools with 185 converters and scrambling devices, free of charge, within one hundred twenty (120) days of the completion of the rebuild. G. Signal Quality. Franchisee shall assure that the access channel delivery system from the Civic Center and all other origination points specified herein meet the same technical standards as the remainder of the system as set forth in Section VIII herein. H. Treatment. The Franchisee will confer with the City on the content and format of any separate line item on the monthly bill related to local programming. I. Origination Sites. The Franchisee shall maintain and/or replace and maintain throughout the franchise term, the active origination lines from the locations from which local programming can be originated on the effective date of this Franchise to the Franchisee's headend. XII. INTERCONNECTION. A. Interconnection. Franchisee's system design shall allow originating institution's signals (public, educational, and governmental channels) to be made available in contiguous communities which are served by the Iowa City headend. If legal and technically feasible, Franchisee agrees to allow interconnection with communities not served by the Iowa City headend provided, however, that such communities, the City, and/or a third party, supply and bear the cost for the interconnect to Franchisee's headend or locations on the system easiest to reach and/or at the least cost, related to access programming origination distribution. Access to TCI's headend and equipment will be limited to T~:I personnel. Such personnel shall supervise any activity with regard to this Section. 12 B. University Cooperation. The Franchisee shall use its best efforts to accommodate the telecommunications needs of the University, its staff, and students. In the event the University proposes a joint venture or other proposal for services, the Company shall review the proposal and respond within ninety (90) days of receipt. Xlll, SUBSCRIBER INFORMATION AND POLICY. A. Subscriber Information. At the time at3 installation or service agreement is to be signed or at the time Franchisee solicits residents, Franchisee shall furnish to each subscriber a simple, but thorough written explanation of all services offered; the fees, charges, terms and conditions of such services; information regarding billing and service calls; complaints; information regarding the availabiliW of parental control devices; and a complete statement of the subscriber's right to privacy in conformance with 47 U.S. Section 631, as it may be amended. Thereafter, Franchisee shall provide subscribers with privacy information and other information, as required by FCC regulations, as amended. Such subscriber information shall be filed with the City concurrent with distribution to subscribers. B. Business Offices and Personnel. Franchisee shall establish and maintain a business office within the City which shall, at a minimum, be open to receive payments and subscriber equipment for the hours specified in the Appendix P, attached hereto and incorporated by reference. Franchisee shall also provide personnel, telephone service, including a locally listed telephone number, and other equipment, as needed within the area, to ensure timely, efficient and effective service to consumers and for the purpose of receiving inquiries, requests and complaints concerning all aspects of the construction, installation, operation, and maintenance of the system and for the payment of subscribers' service charges. C. Subscriber Complaints. Pursuant to the Ordinance, Franchisee shall promptly respond to and resolve all subscriber complaints. However, nothing herein shall require Franchisee to maintain or repair any equipment not provided by it. D. Major Outages. Franchisee shall maintain records of all major outages defined as a discontinuation of cable service from one or more fiber nodes in the City of Iowa City. Such records shall indicate the estimated number of subscribers affected, the date and time of first notification or of Franchisee knowledge of the outage, the date and time service was restored, the cause of the outage and a description of the corrective action taken. Such records shall be available to the City during normal business hours upon reasonable prior notice and retained in Franchisee's files for not less than five (5) years. Upon written request of the City, a statistical summary of such records shall be prepared by Franchisee and submitted to the City annually. 13 E. Customer Handbook. Franchisee shall provide written customer policies or a handbook to all new subscribers and, thereafter, upon request. Franchisee's written customer policies or handbook shall, at a minimum, comply with all notice requirements in the Ordinance and those promulgated by the FCC. If Franchisee's operating rules are changed subscribers shall be notified in a timely manner. Rate and consumer complaint information will be distributed annually to subscribers. Franchisee shall file a consumer handbook with the CiW annually. F. FCC Standards. Franchisee shall meet zhe FCC's Standards for Customer Service. If Franchisee does not meet the busy standards in two (2) consecutive quarters the Franchisee shall add a minimum of one telephone line or make other changes in order to satisfy the telephone busy standards. Franchisee shall provide to the City annual management data, including data from any service centers used by the Franchisee related to compliance with the FCC's Standards for Customer Service. At such time as Franchisee does not meet the FCC and/or the Ordinance requirements for repair for one quarter, Franchisee shall take corrective action to ensure that such standards are met during the next quarter. At such time as the FCC no longer promulgates Consumer Service Standards the FCC standards in effect on the effective date of this Franchise will be in force. G. Downgrades. Subscribers shall have the right to have cable service downgraded in accordance with FCC rules. No charge shall be made for disconnection of basic service. The billing for such service will be effective immediately and such disconnection or downgrade shall be made as soon as practicable. A refund of unused service charges shall be paid to the customer within forty-five (45) days from the date of termination of service. H. Outages. Franchisee, upon subscriber request, shall credit the subscriber's account for verifiable outages of eighteen (18) hours or more for the levels of service affected by such outages. The Franchisee shall provide written notice to subscribers quarterly of the availability of credits for outages. I. Subscriber Contracts. All contracts between Franchisee and their subscribers shall be in compliance with the Ordinance and this Franchise. Franchisee shall file a copy of the Franchisee's subscriber contract with the City annually. J. Negative Option Billing. Franchisee shall comply with Federal Jaw regarding negative option billing. K. Payment Stations. Throughout the term of the Franchise, Franchisee shall maintain, at a minimum, three payment sites in addition to the Franchisee's office. Such payment stations shall be open during normal business hours and be dispersed throughout the City. Franchisee will review the options for payment by telephone and automatic withdrawals. 14 L. TDD. Within 180 days of the effective date of this Franchise, Franchisee shall install a TDD machine to receive consumer messages from the hearing impaired. M. Repair Calls. Franchiseeshall offer subscribers repair service appointments in two hour windows. The Franchisee shall telephone the subscriber prior to arriving for a repair call. Franchisee will conduct repair. calls on weekdays and Saturdays. N. Installation. Subscriber service shall be installed within seven days of a request during normal operating conditions. O. Administrative Fee and Disconnects, Administrative fees are charged on any accounts which have not been paid prior to the next billing cycle. Disconnection of accounts due to non-payment occurs no sooner than after 45 days of due date. P. Subscriber Bill. Company shall include its name, address, and telephone number on the subscriber bill and the portion of the bill retained by the subscriber. XlV. NON-DISCRIMINATION. Franchisee agrees that it shall not discriminate in providing service to the public nor against any employee or applicant for employment because of race, color, creed, religion, sex, disability, national origin, age, sexual orientation, or marital status. In the employment of persons, Franchisee shall fully comply with applicable local, state and federal law, and shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, disability, national origin, age, sexual orientation, or marital status. XV. RATES. The City shall have the ability to regulate rates in accordance with Federal law. XVl. FRANCHISE RENEWAL. Subject to Section 626 of the Cable Television Consumer Protection and Competition Act of 1992, as amended, this Franchise may be renewed by the City in accordance with the Ordinance. 15 XVII. POLICE POWERS. In accepting this Franchise, Franchisee acknowledges that its rights hereunder are subject to the police powers of the City to adopt and enforce general Ordinances necessary to the safety and welfare of the public and it agrees to comply with all applicable general laws and Ordinances enacted by the City pursuant to such power. XVIII. FRANCHISE FEE AND PERFORMANCE. BOND. A. Franchise Payments. Franchisee shall pay to the City a Franchise fee of five (5%) percent of gross annual revenues or the maximum amount permitted by law, whichever is higher, during the period of its operation under the Franchise, pursuant to the provisions of the Ordinance. Any increase in the franchise fee shall be implemented as soon as practicable, but no longer than forty-five (45) days. B. Bonds. Franchisee shall furnish a construction bond to City as specified in the Ordinance during the construction of the rebuild. Franchisee shall furnish a Letter of Credit of $75,000 which shall be replenished within ten (10) days of use by the City as specified in the Ordinance to a total amount of $500,000. Franchisee shall provide such Letter of Credit to the City within sixty (60) days of the effective date of this Franchise. The Letter of Credit should be maintained during the life of the Franchise, to guarantee the faithful performance of all its obligations under this Franchise and the Ordinance. XIX. REGULATION. A. The City shall exercise appropriate regulatory authority under the provisions of the Ordinance and this Franchise. Regulation may be exercised through any duly designated City office or duly established Board or Commission or other body of the City. , B. Franchisee, by accepting the rights hereby granted, agrees that it will perform and keep all acts and obligations imposed, represented or promised by the provisions of this Franchise, the Ordinance, and the renewal proposal. C. The Franchisee agrees to indemnify the City and to hold the City harmless from all claims against it by third parties arising out of its compliance with Section V to the extent that such claims are not barred by Section 635A of the Cable Television Consumer Protection and Competition Act of 1992 (Limitation of Franchise Authority Liability), or by any other provision of law. 16 XX. REMEDIES. A. Schedule of Liquidated Damages. Because Franchisee's failure to comply with certain material provisions of this Agreement and the Ordinance will result in injury to the City or to subscribers, and because it will be difficult to estimate the extent of such injury, the City and Franchises hereby agree that the liquidated damages and penalties stated in the Ordinance represent both parties' best estimate of the damages resulting from the specified injury. B. Violations. For the violation of any of ~he following, the City shall notify Franchises in writing of the violation. The City shall provide Franchises with a detailed written notice of any Franchise violation upon which it proposes to take action, and there shall be a thirty (30) day period within which Franchises may demonstrate that a violation does not exist or cure an alleged violation or, if the violation cannot be corrected in thirty (30) days, submit a plan satisfactory to the City to correct the violation. If an alleged violation is proven to exist, and no cure or action on a plan acceptable to the City has been received by the City within thirty (30) days, such liquidated damages shall be chargeable to the Letter of Credit as set forth in the Ordinance if not tendered by Franchises within thirty (30) days. Franchises may petition the City Council for relief with just cause. The imposition of liquidated damages shall not preclude the City from exercising the other enforcement provisions of the Ordinance, including revocation, or other statutory or judicially imposed penalties. Liquidated damages may be imposed as follows: (1) For failure to complete construction or extend servic~ in accordance with Franchise: $250/day for each day the violation continues; (2) For failure to comply with requirements for public, educational and government access: $150/day for each day the violation continues; (3) For failure to submit reports, maintain records, provide documents or information: $150/day for each day the violation continues; and (4) For violation of customer service standards required by this Franchise, the Ordinance, or by FCC regulation: $150/day per standard violated. (5) For violation of the books and financial records provisions of this Franchise and the Ordinance: up to $150/day for each day the violation continues. · 17 (6) For violation of other material provisions of this Franchise or the Ordinance: up to $150/day for each day the violation continues. XXI. COOPERATION. The parties recognize that it is within their mutual best interests for the cable television system to be operated as efficiently as possible in accordance with the requirements set forth in this Agreement. To achieve this, parties agree to cooperate with each other in accordance with the terms and provisions of this Franchise. Should either party believe that the other is not acting timely or reasonably within the confines of applicable regulations and procedures in responding to a request for action, that party shall notify the person or agents specified herein. The person or agent thus notified will use its best effort to facilitate the particular action requested. XXII. WAIVER. The failure of the City at any time to require performance by Franchisee of any provision hereof shall in no way affect the right of the City hereafter to enforce the same. Nor shall the waiver by the City of any breach of any provision hereof be taken to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself. XXIII. CUMULATIVE PROVISION. The rights and remedies reserved to the City by this Franchise are cumulative and shall be in addition to and not in derogation of any other rights or remedies which the City may have with respect to the subject matter of this Franchise, and a waiver thereof at any time shall have no effect on the enforcement of such rights or remedies at a future time. XXIV. NO LIABILITY. Nothing herein shall be deemed to create civil liability by one party for the action, omissions or negligence of the other party, or of a party's agents, employees, officers or assigns. Each party shall be solely liable for claims against it by third parties, whether arising under the Cable Television Consumer Protection and Competition Act of 1992 or under any other provision of law. 18 XXV. NOTICES. All notices from TCI to the City pursuant to this Agreement shall be sent to the following address for the conduct of matters related to the Franchise. All notices to the City should be sent to: Cable Administrator, City of Iowa City, 410 East Washington Street, Iowa City, Iowa 52244. All notices to TCI shall be sent to these addresses: Cablevision VII, Inc., P.0. Box 4500, 546 Southgate Avenue, Iowa City, Iowa, (319) 351-3984; TCI of Iowa, Inc., 2199 Ingersoll Avenue, Des Moines, Iowa 50312, (515) 246-2288; TCI Southeast, Inc., 2204 Lakeshore Drive, Ste. 325, Birmingham, AL 35209-6732, (205) 871-0044. XXVI. CAPTIONS. Captions to sections throughout this Franchise are solely to facilitate the reading and reference to the sections and provisions of the Agreement. Such captions shall not affect the meaning or interpretation of the Agreement. XXVII. NO JOINT VENTURE. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public, in any manner which would indicate any such relationship with the other. XXVlll. ENTIRE AGREEMENT. This Agreement and all attachments hereto, and the Ordinance and all attachments thereto, as incorporated herein, represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, supersede all prior oral negotiations between the parties, and can be amended, supplemented, modified, or changed only as provided in said Ordinance. XXVIX. SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of this Agreement is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions of this Agreement, except as provided for in the Ordinance. 19 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. ATTEST: CITY OF IOWA CITY, IOWA, a municipal corporation Witness Mayor CABLEVISION VII, INC. Witness Thomas R. Barberini Vice President Seal Approved as to form and correctness. City Attorney 20 FRANCHISE APPENDICES App. A p. 4, VtlhA. App. B p. 5, VIIhE. App. C p. 5, VIIhF. App. D p. 5 VIII.G. App. E p. 6, VIII.J. App. F p. 6, VIII.K. App. G p. 8, IX.A. App. H p. 8, IX.B. App. I p. 8, IX.B. App. J p. 9, IX.E. App. K p. 9, X.A. App. L p. 9, X.B. App. M p. 9, X.D. App. N p. 10, XI.A. App. 0 p. 12, XhD. App. P p. 13, XIII.B. System design specifications Drop technical parameters Delivery system equipment list Converter specificEtions Test equipment available to Iowa City within 24 hours Preventive maintenance program Design standards Franchisee's construction manual Permit and construction process Cutover process Programming during rebuild period Programming categories after rebuild Free drop locations Position of access channels during and after rebuild Access publicity Business and repair hours 17 APPENDIX A General System Design Specifications (550 IViHZ) Distribution - End of Line (77 ch,) NCTA standard methods: Carrier/Noise 2nd order beats Triple order beats Cross modulation Tap outputs 54 MHZ Tap outputs 550 MHZ 49 51 51 51 8 db minimum 14 db minimum Fiber Link (output as node): Carrier/Noise 2nd order bea~s 3rd order beats Cross modulation 51 58 63 63 Note: Performance shall not degrade by more than 2 db at temperature extremes within the system. Note: These specifications may change based on technology changes as well as type of active electronics being used. APPENDIX B Drop Technical Parameters Times Fiber - 32360 V or its equivalent APPENDIX C S/A System I 550 mhz Regal Passives and taps 1 ghz A.T. and Ti Fiber various counts Texcan pathmaker plus node A.T. and T. Laser links Times T-10 coax - where necessary APPENDIX D Regal RR 92 or its equivalent Converter Specifications APPENDIX E Test Equipment 1. Tektronix Spectrum Analyzer Model #2710 (10KHZ - 1.8GHZ) 2. Signal Analysis Meter - Wavetek 2000 capable of: A. Signal levels B. C/N ratios C. Num in % 3. Trilithic Frequency Counter (TFC 450 MHZ) 4. Wavetek Model #1067 Bench Sweep 5. Tektronix Field Sweep System Model #2722/2721 6. Vitek Leakage Detector Model RDR-1 7. Comsonics Leakage Detector Sniffer II & IIl's 8. Tektronix Model 1730 Waveform Monitor 9. Tektronix Model 1503B TDR Cable Tester 10. Signal Generator Model MC-50 APPENDIX F TCl of Eastern Iowa Leakage Monitoring Procedures The Iowa City system is divided up into six leak. age areas. Each area is assigned to one technician. One day every week is set aside for each technician to perform leakage monitoring and repair in their area. it is the technician's responsibility to make sure that his or her entire area is covered and all detected leaks repaired each quarter. APPENDIX G DESIGN STANDARDS EXCERPTED FROM THE IOWA CITY JOINT MUNICIPAL DESIGN STANDARDS PART 6 - UTILITY WORK AND OTHER CONSTRUCTION WITHIN PUBLIC RIGHT-OF-WAY 6. 01 PERMIT REQUIRED: A right-of-way construction permit is required to work within the public rights- of-way of Iowa City, Coralville and North Liberty. Permits may be obtained from the City Engineer in Iowa City and Coralville and from the Building Official in North Liberty. Permits for utility work must be obtained by the owner of the utility. A right-of-way construction permit is not required for sidewalk, driveway, or mail box construction. See Parts 2 and 3 for the construction of sidewalks and driveways and Section 6.03A for the construction of mailboxes. 6. 02 TRAFFIC CONTROL: 6.03 The permittee is responsible for all traffic control and work sit.e safety. Traffic control shall meet the standards for Work Zone Traffic Control as defined in the current edition of the Manual on Uniform Traffic Control Devices for Streets and Highways. A traffic control plan may be required by the City Engineer. The permittee shall provide adequate lighted barricades and/or fencing to protect pedestrians. All excavations shall be fenced when the contractor is not at the site. There may be situations where the traffic load or site conditions will allow only a portion of the street to be closed at one time. On collector and arterial streets, contractors may be required to bore and jack to place a new utility beneath the street surface. MISCELLANEOUS CONSTRUCTION: Mail Boxes - The base of all mail boxes shall be a minimum of 1 8 inches from the edge of the pavement. Brick or other masonry support structures are not allowed. Contact the local post office for current regulations regarding the height and offset of the face of the box. Retaining Walls - Private retaining walls are not allowed within the public right- of-way without an agreement for temporary use of public right-of-way approved by the City Council. Monitoring Wells - Monitoring wells are allowed in the public right-of-way only when it can be shown that the wells cannot be located on private property. Monitoring wells are subject to special permit conditions. 6. 04 CLEAR ZONES: 6.05 On streets with curbs, the clear zone shall be 10' for four*lane facilities and 3' for two-lane facilities. On streets without curbs, the clear zone shall be 10' for two-lane and four-lane facilities. Variances to clear zone requirements will be considered for overhead electrical facilities where compliance will significantly impact existing trees. Jn no case will a clear zone of less than 18 inches be allowed. A clear zone variance must be approved by the City Engineer. EXCA VA T/ON AND BACKFILl.: Within public right-of-way, backfill shall consist of Class A crushed stone or suitable job excavated material placed in one foot lifts compacted to 90% · Modified Proctor Density. If crushed stone is used, the top 12 inches of backfill shall consist of suitable job excavated materials, Flowable mortar may be used upon approval of mix design by the City Engineer. Sand backfill is not permitted; however, sand may be used as utility bedding. In all other areas backfill shall consist of suitable job excavated material placed in one foot lifts and compacted to 85% Modified Proctor Density. 6,06 WORK AROUND TREES: A. Use care to prevent work within the drip line of trees. When work falls within the drip line of trees, contact the City Engineer or City Forester. 6.07 RESTORATION OF BRICK STREET SURFACE: A. Use care to salvage bricks during excavation. Construct a 7 inch thick base of IDOT M-3 concrete. Allow enough depth for installation of brick on a sand cushion, Brick shall be placed on a sand cushion making sure the pattern and elevation match the surrounding street. A 50% sand and 50% Portland cement mixture shall be swept into the brick joints and fogged with a mist of water to insure seating of the brick. 6. OB RESTORA T/ON OF ASPHAl. T OVERLAY ON BRICK STREETS: Construct a 7 inch thick base of IDOT M-3 concrete flush with the top of the surrounding bricks. Be Tack and place 3/8-inch IDOT Type A mix asphalt and compact to the proper elevation. 6.09 RESTORATION OF ASPHALT OVERLAY ON PORTLAND CEMENT CONCRETE STREETS: Construct a concrete base of the same thickness as was removed using M-3 mix. An IDOT type BT-3 joint shall be used to joint the base to existing concrete. Use #5 epoxy coated bars, 24 inches in length, spaced 30 inches on center drilled and grouted 9 inches into the existing slab. The concrete base shall be flush with the existing concrete. B. Tack and place 3/8-inch Type A asphalt a~d compact to the proper elevation. 6. 10 RESTORA T/ON OF PORTLAND CEMENT CONCRETE STREETS: Concrete shall be removed to the nearest longitudinal joint and a minimum of half the panel between transverse j.o}nts. Only full or half panels may be removed. Full panels must be removed if the portion to remain is cracked or settled. B. Concrete shall be sawn to insure a clean break at the joints, An IDOT type BT-3 joint shall.be used to joint to existing concrete. Use #5 epoxy coated bars, 24 inches in length, spaced 30 inches on center drilled and grouted 9 inches into the existing slab. Place new concrete of the same thickness as was removed using IDOT M-3 mix. E. All joints shall be sawn and sealed according to IDOT detail RH-51. OTHER SURFACES: All areas outside the paving which are disturbed shall be restored to their original condition. When approved by the governing authority, unimproved streets (rock or rock and oil, seal coated streets, or aspbaltic concrete surfaced streets) may be repaired or restored with Bituminous Seal Coat consisting of one or more applications of Binder Bitumen with one or more successive applications of cover aggregate. Materials, Equipment and Construction methods shall be in general conformity with Section 2307 of the current Iowa Department of Transportation Standard Specifications for Highway and Bridge Construction. 6. 12 MA/NTENANCE: Seeding or sodding of disturbed areas shall be maintained until watering is no longer required for self-sustaining growth. The owner of the utility will be responsible for repair or maintenance of settled areas within the right-of-way and pavement repairs for a period of five years from the date the work is completed. APPENDIX H Franchisee's construction manual is on file with the City Clerk. City of Iowa City MEMORANDUM APPENDIX I Date: January 17, 1995 To: Drew Shaffer From: Rick Fosse ~ Re: Cable Franchise Please note my comments at the bottom of page 7 of the proposed franchise. A copy of the applicable portion of the design standards is attached for your reference. Since the design standards have not yet been approved by Council, I recommend that they be incorporated into an appendix of the franchise to prevent any problems related to the timing of Council approval of the design standards verses approval of the franchise. I do not expect a problem getting Council approval of this portion of the design standards since it merely forrealizes existing practice. Also attached is a copy of the Right-of-Way construction permit as you have requested. A $1,000 deposit will be required to cover all locations of the proposed work. However, if it becomes necessary to use a portion of the deposit for restoration or cleaning of public right-of-way, no additional work may occur until the full amount of the deposit is restored. Two thirds of the deposit will be refunded Upon completion of the work and the remaining third will be refunded after one year provided all restoration has remained in satisfactory condition. The time required for review of a right-of-way construction permit is specified in the proposed franchise and is acceptable to us. Kevin O'Malley should be consulted regarding insurance requirements for the permits. Kevin will need a general description of the type and scope of work to be performed prior to specifying limits. If you have questions regarding any of this information, please call me at 5143. cc: Chuck Schmadeke Kevin O'Malley APPENDIX I CITY OF IO&A/A Cl'T~r~., IO~'~'A ROW CONSTRUCTION PERMIT 005675 DATE NAME ADDRESS PURPOSE AND LOCATION OF WORK /U40UNT OF ANNUAL DEPOSIT ON FILE AMOUNT OF SPECIAL DEPOSIT INSURANCE CERTIFICATE ON FILE SKETCH OF JOB LAYOUT: Approved for construction by: SPECIAL PROVISIONS: 1) Call for underground utility locates One Call #: 1-800-292-8989 2) Traffic control standard must meet specifications in "Work Zone Traffic Control - 1988 Edition" manual. THIS SECTION FOR STREET DEPT. PATCH REPLACEMENT TO BE CHARGED AGAINST DEPOSIT. [7Pe of Surface Backfill Materials -- Total amount billed = Date Started ~ $ / sq.yd. = ~ $ ~ / sq.yd. = 0ate Finished FOR CASH DEPOSITS ONLY Date of Initial Inspectten 0ate of Final Inspection Con~Tlents: Date 2/3 deposit returned Date final I/3 depoatt returned Inspector White - Permittee Canary o Engineering APPENDIX J The upgrade/rebuild will involve installing and activating fiber optics cable while the coaxial cable is still activated and in operation. There will be a series of fiber nodes designed for the upgrade/rebuild. As each node is installed and completed, it will be activated. The activation of one node will not interfere with or interrupt the completion of a separate node. In the event the Company is confronted with the loss of signal of more than one street at a time, the Company will make every effort possible to complete the work during minimal viewing, such as 12:00 a.m. to 6:00 a.m. or at the time recommended by the City. APPENDIX K Programming During Rebuild* Public Access KGAN Government Channel HBO The Disney Channel KWWL University of Iowa Channel KCRG Library Channel Iowa City School's Channel KOCR KIlN Cinemax The Family Channel Lifetime C-SPAN Univision fX The Weather Channel CNBC/Sportschannel AMC Encore USA CNN The Discovery Channel CNN Headline News TNN WGN WTBS TNT ESPN VH-1/Comedy Channel A&E BET/Bravo Nickelodeon MTV Request 1 Franchisee reserves the right to alter, change or modify programming at any time subjec~ to federal law. APPENDIX L Programming Categories After Rebuild Needs and interests of population of Iowa City as indicated by Cable Administrator records and Consumer Market Study by Rice, Williams New Programming Science fiction programming Religious programming Cartoon programming Senate programming Secondary and adult learning programming Travel programming Higher educational programming Court programming Pay programming International programming Disability-related programming Quad City broadcast programming Children's programming News programming Current Programming to become full-time Comedy programming Music programming Sports programming Black entertainment programming Arts programming APPENDIX M Iowa City School Sites Community Education Center City High Coralville Central Elementary Hoover Elementary Horn Elementary Kirkwood Elementary Lemme Elementary Lincoln Elementary Longfellow Elementary Lucas Elementary Mann Elementary Northwest Jr. High Roosevelt Elementary Shimek Elementary Southeast Jr, High Twain Elementary West High School Grant Wood Elementary Irving Weber School Free Drops Other Schools Regina Elementary Regina High School Willowwind School Kirkwood Community College Public Buildings Civic Center Senior Center Recreation Center Library Fire Stations 1, 2, 3 Broadway St, Neighborhood Center Pheasant Ridge Neighborhood Center Other Sites Future neighborhood centers Future access organization(s) sites APPENDIX N Access Channel Positions During and. After Rebuild Government Channel University of Iowa Library ECC Channel 2 Channel 4 Channel 8 Channel 10 Channel 11 APPENDIX 0 The Company agrees to insert into subscriber handbooks, information about local access channels. The cost of printing, etc. of this information shall be the sole responsibility of the access programmi.ng provider {government, education, public). The Company reserves the right to approve content. The Company agrees to allow billing messages or bill stuffers to be included in subscribers' bills at the rate on one per year subject to approval of content by the Company, availability and adequate advance notice. The cost of printing and insertion shall be the responsibility of the access programming providers {government, education, public). APPENDIX P Business Hours: Service Hours: Business and Repair Hours 8 AM - 6 PM Monday-Friday 9 AM - 5 PM Saturday 8 AM - 5 PM Monday- Saturday. 0n-call - 24 hours per day, seven days a week MEMO 10/23/9~, TO: Mayor Horowitz and iowa City Council Members FROM: Dale Bingham - Member North Liberty TV Commission RE: Public Hearing on Iowa City Cable TV Franchise with TC! c~0 c~ '~-~' I shall be unable to attend the Hearing due to a con~nitment, to%tmcabl~ast the North Liberty City Council meeting. I thus submit the ~o~owing testimony not really knowing the type content you desire. BOTTOMLINE: 1. I regard the following as Model Programs worth emulating in North Liberty and elsewhere: - I. C. Public Access TV (PATV) - I. C. Government Channel - I. C. & Johnson Co. Senior Center TV ($CTV) I consider their success to be directly related to outstanding personnel. Over the past 4 years, ! have observed their current Leadership to be knowledgeable, skilled, creative, productive and dedicated to job and community. Specifically, I refer to alpha- betically - Bob Hardy, Rene Paine and Drew Shaffer. Further, have great respect for their common sense and sound judgement thus would consider any reco:mnendations they make salary-wise, equip- ment-wise or otherwise as valid, reasonable and in the best inter- est of the community. The Public - Educational - Governmental (PEG) Access programs motivate and facilitate citizen involvement in the democratic pro- cess. The Education, Training and Experiential programs of Item 1 above have a widespread impact on achieving this goal in other. co~nunities. I document only 1 example below. DOCUMENTATION - Item 2 I received my training in telecommunications at SCTV and PATV. That training has significantly enhanced the creative and productive aspects of my life over the past 4 years. I consider myself a "pro- duct" of SCTV and PATV - thus, in a broader sense, of the involved Boards and Iowa City Council. As your "product, I hope you derive some sense of personal satisfaction from my report i: - Applied for and was appointed to the N.L. Cable TV Co,~ission 1994) Volunteered to cablecast City Council meetings and do it routinely (A first for North Liberty); - Initiated a suggestion which led to employment of a Work-Study stud- ent as Programming Coordinator part-time (Another N.L. first); Trained and supervised this student who has increased progra~uning to exceed total programs in the preceding 11 years; Served as a catalyst to securing PEG Access space in our new Community Center; Have recently produced & hosted a weekly Series - "North Liberty - Our Hometown;" Etc. During these 2 years of growing pains, Rene, Bob and Drew have been the "Doctors" who eased the pains. FOOTNOTE: I am 71. I retired in 1987 from the communication related profession of Speech and Language Pathology. During my ~6 years "on- the-Dot," I served 10 Fears in the State Dep't. of Public Instruction and my last 2~ years on the staff of UI Hospitals and Clinics. Respectfully submitted, To: From: Re: Date: MEMORANDUM City Council, Iowa City Bob Welsh Refranchising Cable Television Services October 24, 1995 Please accept this memorandum as a part of your October 24, 1995, public hearing on the franchise agreement between T.C.I. and the City of Iowa City. Attached you will find a copy of my memorandum dated, May 10, 1994. I trust as you review the franchise agreement that you will consider how it deals, if at all, with the four provisions I suggested and how it deals with the three state-of-the-art provisions I called to your attention 17 months ago. Unfortunately, I have tickets to Haneher for tonight and thus, will need to watch a rerun of your proceedings. I have obtained a copy of the agreement and will study it in detail. Hopefully, I will be able to address you in person when you give further consideration to this agreement. To: From: Re: Date: MEMORANDUM Iowa City - City Council Bob Welsh Refranehising Cable Television Services May 10, 1994 I had the privilege 21 years ago, of serving as chair of the first Ca le..~Television Commission in Iowa City. On April 18, 1973, the commission said "that Iowa City should have cable if steps can be taken that will assure it becoming a broadband communications system that will provide educational, cultural, and social services to all of the residents of this community." We also recommended public ownership to the City Council. We felt this was tile best way of assuring tile goals we set forth. The city council took the recommendation of tile city manager who viewed cable as an "entertainment business." In light of his recoramendation, the franchise process was utilized. We indicated, at the time, that granttag a franchise was like giving a license to print money. In fact, this has proven to be true. After listening to the presentation }as: night, please let me offer some views for your consideration. I believe that there are suffieent grounds of non-compliance by the cable companies to warrant your not granting T.C.I. a franchise renewal. Please review the promises mode and not fulfilled. Some examples are: arm chair tuning with a remote-control channel selector; free program guide; a medical channel; and more locations from which to originate programs around town, including the Recreation Center and Mercy Hospital. Please review the lack of fiscal data provided in a timely manner through the years. Please review the breach of franchise when tile system was said to T.C.I. withoat city approval. If I am correct that these are sufficient grounds for not renewing the franchise, then I trust you will consider public ownership. Imn prepared to discuss with you five forms of public ownership. If you have a written legal opinion that you cannot deny refranehising, then I suggest, based on past expereience, that you at least include in the new franchise agreement tile following additional provisions: Page 2 1) A limit on the amount of profit (% of investment), so that the city has some control over the rates for the various services. Data indicates that T.C.I., most years, probably made a profit of over one million dollars. With the many new services that will be added, some mechanism of rate control needs to be in place to protect the citizens of Iowa City. Cable is very much like a utility and profits need to be controlled. 2) A provision that failure to carry out any provisions shall be acknowledged to be grounds for not renewing the franchise. This would give the city the enforcement power it needs. In the past, promises were made and not fulfilled. We need to protect against this happening in the future. 3) A buy-out provision at the end of the franehise period. This provision would not obligate the city to buy the system, it would, however, give the city that option. I think this is wise planning for tile unknown future. 4) No charge for city services using tile fiber network. City services might include reading water meters, at a long-term cost saving to the city. Tile system could also be utilized to provide increased fire and palice protection. I believe the city should be able to utilize the fiber system for this and other services without payment to T.C.].. ]in addition~ let me suggest, in relation to the provisions presented to you: a) I question whether 78 channels is sufficient in light of my understanding of the present state-of-the-art. I have read, as I ant sure you have read, of systems of 160 channels. b) The provision for state-of-the-art, which I heard is yet to be negiotated, is imperative. T.C.I. should be required to update in tile fourth and seventh year of a ten-year agreement. This provision should also identify who would make the state-of-the-art determination. c) Do you really only wish 40% of tile system to be underground? I think much more is reasonable and desirable. In closing I think that T.C.I. has an excellent manager in Iowa City. None of my remarks should be considered negatively. My comments today have but one purpose, that is to help you by sharing what I believe to be the best course of action based on my experience. Thank you for your consideration of these issues as you proceed. ~yor and City Council Members City of Iowa City Dear 14ayor and Council Members: October 19, 1995 We reQuest--appeal, urge~ pray--that when TCI adds four more 'oh. annels to its cable system in the Iowa City area,~hat it inclu~ the Senate debates. C~Spsn 2, the Senate channel, is important for an informed citizenry. We want to see and bear our own other elected Senators. C-Span 2 is as import- ant C-Span , the House of Representatives, which is now on the cable system. C-Span ' and C-Span 2 are watched nationally by 63,000~000 and ~O,000,0OO people respectively even though C-Span is available on more than three times as many cable systems. The Iowa City area has a uniquely well infonr, ed and highly educated pop- ulation that would benefit from the addition of C-Span 2o U. So and foreign students in this educational capital of the great State of Iowa will have their horizons enhanced by the ~-Span 2 experience. Within Iowa TCT now provides C-Span 2 in Burlingten, Clinton, Colfax, Council Bluffs, Des Moines, Dubuque and Ottumwa. C-Span 2 is available in the home town of all of the other Big-11 universities. WHY NOT IU~A CITY? The City Council meeting on Tuesday wt]] take up a revi. sed contract with TCI. We wi11 urge the City Council to petition TCI to include C-Span 2 in its expanded cable service when it becomes operational I~ Rob Soldofsky~ am~Murray Professor of Finance, Emeritus~ University of iowa and Lt Col-USAm, Retired Carol Spazi~ is a recently librarian at the city library John McDonald~ an owner of McDonalds 0ptical~ is also a former council member and ma~or or Icom City A look at the audience share for cable channels .... ..._sho_w_s_ho_w_f_r_ag e.n_t_ed the market is .t ..... ]EWERS'ARE'FL;i~Pt[NG'~ nev~¥1y~Crn~i~'wifiT__..Ihi.rLtb~_a._udience "pie" is bcing2]iced. Networ,k.2i-are '7"'7'. · ever-increasing frequency as cable continues to ranked by audience, hare or, T~ir {~ n . pare ~mentation will only accelerate: As cable operators In the columns below. SHARk indicates average daily ' fragment the t;:levision audience. And the frag- figure, by number o subscribers· pour. billinns ,f dollars into increasing their capacity. percentage of all TV sets ia use that watch the channel; · ' ' AUDIENCE indicates average daily number of homes watch- d,zens of new channels are starting up. But even the most popular cable channels arc dwhrred in the ratings hy some of the lowc.-t-rated sh~m's on the broadcast netwnrks. Be. low is a .-nap:hot. from the 1993 fourth quarter, -f A~-SUPPORTED StlBSC~B$,RS CABL~ NETtNORKS (In ~eHca's Di~bfli~ Channel 15.0 ~erican Movie Classics .17 Ar~ & Ente~ainment Network 59.0 B~ck En~iament Television '40.0 ~e ~x 4 0 Bravo 17.0 Cable Health Club 0 5 Ca~b~ ~[iite Network Carton Nelwork 9.0 ~medy Cen[ml· 30.0 Coun~ M~ic Television. 25.0 C~ 5Z.O SHARE AUDIEJ~CE B B PCT. ~$hTCHIHR B B____R B 1 3:~5 0..'5 1. 104 02 B B B B' B B B R R a 75 0.1 a 66 O.l u 99 0.2 S 75 0.! ing. in thousands: and PCT. WATCHING indicates the aver- · age daily percentage of a network's subscribers watching. --Mark Robichaux AD~SUPPOF/I'~D CN,'N C-SP~ C-SP~2 Crime Channel Di~ve~ ~a~el E2 Enter~in~e~t , Galavisi°n . G ElYIS Tele~ Headline N,', Home Shop .__Ho. me Shop lnil~tration: ~aming C2 Mind Exte~ MOR M~k5 M~ ' N~hviHe F: .N{ckelod~2: ...r '~e~cw~ ESPN ESPN2 .... EVffN: The Catholic Net~;ork 'Fii~ & v_aim Ch-~nn~t- Family C~gnneF,' n= g,.inw minimum rcportin~ stondard.~ of: 1 for .-hare. 1.000 for audience: 0. l fo~' perce~'~diit~hifig'; 62.0. 26.0 2.0 · 63.0 12.0 37.0 · 20.0' {I L ~t's report' l0 ms 24th con- For traditionalisis: Mr. K.ogers. SBII stalking the · &O-SUPPORTED SUB,,~J~BF_I~ PCT- CAEit N;ORKS (in mlll~ns) SHA~ AUDI~ IAT~I~ ~ 18.0 S B B Galavision 5.0 it l{ . G~S ~levision 2.0 u --n B Headline News 54.0 I 1~1 n 3 Home Shopping Network I 22 0 n . . H 5~'S~p r~ g-N~ ~ ~b%~ i'=' '= ~ 2 r ~ International Channel '' Inspirational Network Je~'ish Television Network Learning Channel Lifetime Mind Extension University 57.0 I 373 0.6 I0 0 B MOR Music TV MTV NASA Television Nashville Network 291 r, ', Z~ 27.S Nail Empowermeat Telev. i_nig.n Nickelodeon Tl~/e ~Os Channel Nostalgia Television Prevue Prime SportsChannel Network qVC Sci Fi Channel .'TI~ Telemundo '" T~levision ~Network 02 g . LL 0.8 R B VH-I Weather Channel Warship WGN Z Mu,,k' Other ad-supported cable networks Pj~Y CABLE NET'WORKS CAnemax Showtime Other pay cable networks AD-SUPPORTED CABLE NET1NORKS (In millions) Travel ChanneW 20 t) Turner Network Television 59 0 Trinity Broadcasting 2fi o Turner Classic Movies 1.0 TV-Japan CI l UnivLnion 6.0 ... USA Network ......... ,~;~ o ValueVision 1.o PCT. ~HAIF,,, AUNENC~ WATCH~ 3 r~t ! 0.9 ' It II It n R B It B It B B B :{ , 6~5 .... 1,Or... 0.2 N A It B B :~8.0 ] 234 0.4 fi ~ B B H NA. 6 1.318 2,1 / .77J I 2'23 Is.(; . .! 782 !.2 11.0 I 20:1 0.3 N A 1 0.3 BROADCAST N~'L'INORKS (in cable homes only) CBS Fox BROA0CAST ~NDIPENDENT 5TAlIONS (En came ~s P~ (in ceHe ~me~ oniy) ~ A 3 1,030 ~ - 0,9 BE~ DOC, U~NT AVAILABL-E ~ I th,' mm'l.'rt h The Shopplnl~ Subculluro Date.: Tue, 24 Oct 1995 02:38:14 -0500 (CDT) .From: Rusty Martin <rmartin@worf. netins.net> To: Mkarr@blue. weeg. uiowa. edu Subject: Letter to the City Council Please forward to the city council. Thanks. Rusty Martin Dear City Councilors, I am writing to encourage you to strongly support PATV in the on-going cable franchise negotiations. I have five points: 1. Unlike the commercial media, public access offers everyone the opportunity to speak. We need to hear more voices, especially local ones. 2. Unlike the channels and channels of stuff produced somewhere else, public access is a place to find locally produced material. 3. Unlike the government and school channels, the PATV board, not politicians, determine policy. It is vital that we provide at least some public access channels which are insulated from political pressures. 4. PATV is a bargin. Many important public events and public issues are discussed on PATV shows produced by volunteers using very cost-effective equipment. The cost of providing the same or even greatly reduced coverage by the city's staff would be far too much. Let's keep doing at least some things on the cheap. 5. PATV needs more channels to meet future needs. Multimedia technology is leading to a boom in video production. We should not sign a multi-year contract without adding more channels for our citizens to share their creations in this new medium. Public access is an Iowa City institution which works well. Please speak up for access. Thank you, Rusty Martin 802 E. Washington Street 354-7220 Dat~: Tue, 24 Oct 1995 09:02:58 -0500 -From: Linda Yanney <lyanney@blue.weeg.uiowa.edu> To: mkarr@blue.weeg.uiowa.edu Subject: PATV Members of the City Council: I am writing in support of the continuation of Public Access TV. PATV is an important service to the community. It offers an extraordinary variety of local voices and co~mmentary. Whether news and commentary--my viewing choice--sports or experimental productions, PATV is interesting high quality viewing. , TCI has consistantly denied Iowa City subscribers the services provided to subscribers in other communities, most notably c-span 2 and limited channels. During these contract negotiations, I hope the City will keep in mind that TCI "gives', us very little. PATV is not something "given", it is a minimum basic service this monopoly supplies for the priviledge of operating in this community. I urge you to continue to support PATV. Sincerely, Linda J. Yanney 174 Dartmouth, Iowa 351-0568 city "My daddy said reading pamphlets never made anybody give Marlon Brando as Sky Masterson in _Guys and Dolls_. up anything.,, Dat~: Tue, 24 Oot 95 10:31 CST From: Jvmartin@ppsl-po.phyp.utowa.edu To: mkarr@blue.weeg.uiowa.edu Subject: PATV In negotiating the city's contract with TCI it is important to include the funding for public access. Thank you. Data: Tue, 24 Oct 95 10:23 CST 'From: CGilbert@exam-po.examouiowa.edu To: Mkarr@blue.weeg.uiowa.edu, patv@blue.weeg.uiowa.edu Subject: PATV Just wanted to put in my word of support for PATV in the franchise negotiations. It is important that local folks have a voice in what they pay for. This is one of the few channels where we, as subscribers, can have input into the programming aired. I feel it is important that PATV be accessible by everyone in Iowa City, both to see what is locally produced and in giving a voice to those who are ignored by the remainder of cable channels. Thanks for listening. Criss Gilbert 1134 Hotz Avenue Iowa City 351 - 4006 c-gilbert@uiowa.edu Date: Tue, 24 Oct 199§ 09:45:31 -0500 (CDT) 'From: "R. Bailey" <rbailey@blue.weeg.uiowa.edu> To: mkarr@blue.weeg.uiowa.edu Subject: Support for Public Access TV Dear City Councilors, I am writing to encourage you to strongly support PATV in the on-going cable franchise negotiations. PATV is an important community resource. My organization is currently writing a grant to produce some documentary videos. In all likelihood, we will work with the facilities at PATV to develop these and we'll present them on PATV. It was easy to talk to them about this, it will be easy to have access to facilities, it will be easy to program our documentaries on the station. This opportunity for small players to have a voice, and to participate in the media world without huge costs associated with that participation is important to maintain. That equal access is part of the foundation of democracy and I think that Iowa City should work very hard to sustain that. Thank you, Regenia D. Bailey 509-1/2 Brown Street 351-2068 NOTICE OF PUBLIC HEARINGS Notice is hereby given that public hearings will be held by the City Council of Iowa City, Iowa, jointly with the Broadband Telecommuni- cations Commission of the CiW of Iowa CiW, Iowa, on the 24th day of October, 1995, at 7:30 p.m. in the CiW Council Chambers at the Civic Center, 410 E. Washington Street, Iowa City, Iowa; at which hearings the CiW Council and the Broadband Telecommunications Com- mission will receive comments from the public regarding a proposed Franchise Agreement between the CiW of Iowa CiW and Cablevision VII, Inc., and regarding a proposed ordinance amending Title XII, entitled "Franchises," of the Code of Ordinances of the City of Iowa City, to repeal Chapter 4 and to adopt a new Chapter 4 to be known as "Cable Television Franchise Enabling Ordinance," These documents are on file and available for public inspection in the office of the City Clerk at the above address. Persons wishing to make their views known are encouraged to appear at the above-mentioned time and place. MARIAN K. KARR, CITY CLERK Sec. 12-4-1: Sec. 12-4-2: Sec. 12-4-3: Sec. 12-4-4: Sec. 12-4-5: Sec. 12-4-6: Sec. 12-4-7: Sec. 12-4-8: Sec. 12-4-9: Sec. 12-4-10: Sec. 12-4-11: Sec. 12-4-12: Sec. 12-4-13: Sec. 12-4-14: Sec. 12-4-15: Sec. 12-4-16: Sec. 12-4-17: Sec. 12-4-18: Sec. 12-4~ 9: Sec. 12-4-20: Sec. 12-4-21: Sec. 12-4-22: Sec. 12-4-23: Sec. 12-4-24: Sec. 12-4-25: Sec. 12-4-26: Sec. 12-4-27: Sec. 12-4-28: Sec. 12-4-29: Sec. 12-4-30: Sec. 12-4-31: Sec. 12-4-32: Sec. 12-4-33: Sec. 12-4-34: Sec. 12-4-35: Sec. 12-4-36: Sec. 12-4-37: Sec. 12-4-38: CHAPTER 4. CABLE TELEVISION DIVISION 1. ENABLING ORDINANCE Short Title Definitions Cable Television Administrator and Broadband Telecommunications Commission Regulatory Jurisdiction and Procedures Significance of Franchise The Cable Television Franchise Operation of Franchise Rights Reserved to the City Applications for Franchise Acceptance and Effective Date of Franchise Termination of Franchise Reports and Records of the Grantee Franchise Payment Liability and Indemnification Bonds Fees, Rates and Charges Public, Education and Government Connection to Cable Television System Interconnection of Network Construction Timetable for Initial Construction Construction Timetable for Rebuild Construction Network Description Network Technical Requirements Performance Measurements Construction Standards Erection, Removal and Common Use of Poles Construction Reporting Requirements Channels to be Provided Conditions of Street Occupancy Unauthorized Connections or Modifications Preferential or Discriminatory Practices Prohibited Installations, Connections, and Other Services Service Calls and Complaint Procedures Transfer Publications Costs Ordinances Repealed Separability Time is of the Essence to this Ordinance No Waiver of Rights DIVISION 2. RATE REGULATIONS Sec. 12-4-39: Rate Regulation Proceedings Sec. 12-4-40: Certification Sec. 12-4-41: Notification of Changes Sec. 12-4-42: Cable Official Sec. 12-4-1: Short title. This article shall be known and may be cited as the "Cable Television Franchise Enabling Ordinance. Sec. 12-4-2: Definitions. For the purpose of this article the following terms, phrases and words and their derivations shall have the meaning specified herein. When not inconsistent with the context, words used in the present tense include the future and words in the singular number include words in the plural number. Access or pubtic, government, and educational access channels shall mean public, educational, government, library, and University access channels. Additional service shall mean a subscriber service provided by the Grantee for which a special charge is made based on program or service content, time or spectrum space usage. AnnuaJ gross revenues means all revenue received. by the Grantee from all sources in connectio~ with the operation of Grantee's cable television system. Gross revenues shall include, without limitation, amounts for all cable service, including but not limited to, basic service and tier service, premium and pay-per-view services, advertising, leased access, installation and all other revenues derived from the operation of Grantee's cable television system. Gross revenues shall not deduct the following: (1) any operating expense, {2) any accrual, including without limitation, any accrual for commissions or (3) any other expenditures, regardless of whether such expense, accrual or expenditure reflects a cash payment, but revenue shall be counted only once in determining Gross Revenue. Gross revenues shall also include the revenue of any affiliate, subsidiary, parent, or any person or entity in which each Grantee has a financial interest, derived from the operation of the cable television system for advertising, or for any other business operation of the cable television system, to the extent such revenue is derived through any means that has the effect of avoiding the payment of franchisee fees that would otherwise be paid to the Grantor. Revenues of both Grantee and an affiliate, subsidiary, parent, or any person or entity in which the Grantee has a financial interest that represent a transfer of funds between them and that would constitute gross revenues of both the Grantee and the affiliate, subsidiary, parent, or anv person or entity in which the Grantee has a financial interest shall be counted only once for purposes of determining gross revenues. Gross revenues shall not include franchise fees, any other fee, assessment, sales or other similar tax imposed by law on subscribers or that Grantee is legally obligated to collect. 3 Basic subscriber television services or basic services means a separately available basic service tier to which subscription is required for access to any other tier of service. Such basic service tier shall, at a ~inimum, cons[st of the following: all signals carried in fulfillment of the Cable Act, Sections 614 and 61 5; any public, educational, and governmental access programming required in this ordinance or the franchise; any signal of any television broadcast station that is provided by the cable operator to any subscriber, except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station. Additional signals may be added to the basic tier by the Grantee. Cable service means the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service. Cable television system channel capacity means the highest total number of cable television channels on which television signals from separate sources may be delivered downstream simultaneously to every subscriber in the network. The network may have additional channel capacity for specialized or discrete purposes, but the technical performance specified shall not be materially degraded thereby. Cable television channel means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel as defined by the Federal Communications Commission. Cable television system or cable system, also referred to as "system," means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not~nclude {A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a faciliW that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public rights-of-way; {C) a facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Cable Act. except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or (D) any facilities of any electric utility used solely for operating its electric utility systems. Channel frequency response means within a cable television channel, the relationship as measured at a subscriber terminal between amplitude and frequency of a constant-amplitude input signal at all specified frequencies within each channel. City shall mean the City of Iowa City, Iowa, its officers and employees unless otherwise specifically designated, the area within the territorial City limits of the City and such territory presently outside the City limits over which the City mav assume jurisdiction or control by virtue of annexation. Closed. circuit or institutional service means such video, audio, data and other services provided to and between institutional users. These may include, but are not limited to, one-way video, two-way video, voice, audio or digital signals transmitted among institutions and/or to residential subscribers. · 4 Commence operation means operation will be considered to have commenced when sufficient distr. ibution facilities have been installed so as to permit the offering of "full network services" to at least twenty-five {2§) percent of the dwelling units located within the designated "service area." Commission refers to the Broadband Telecommunications Commission. Communications PolicyAct or CableAct means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992 as it may be amended or succeeded. Complaint means an oral or written indication from a subscriber of a problem with any aspect of cable service. Contiguous shall mean abutting or within two hundred (200) feet. Council shall mean the City Council of the City of Iowa City, and any legally appointed or elected successor or agency. Data grade shall mean coded transmissions primarily digital in nature. Days shall mean business days. Downstream means the direction of transmission over the cable television system from the "head end" or "hub" to a subscriber's terminal. Drop shall mean a coaxial connection from feeder cable to the subscriber/user television set, radi6~or other terminal. Fair market value means the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time. FCC shall mean the Federal Communications Commission and any legally appointed or elected successor. Franchise means a franchise contract entered into voluntarily by the Grantee, containing the specific provisions of the franchise granted, including referenced specifications, franchise proposal, applications and other related material. The franchise granted pursuant to this ordinance grants the nonexclusive rights to construct, operate and maintain a cable communications system along the streets and public ways and grounds within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of the City. Franchise area means the entire City, or portions thereof, for which a franchise is granted under the authority of this ordinance. If not otherwise stated in the franchise, the franchise area shall be the corporate limits of the City, including all territory thereafter annexed to the City. 5 Franchise fee means the percentage, as specified by this ordinance, of the Grantee's gross revenues from all sources payable in exchange for the rights granted pursuant to this ordinance and the franchise agreement. Full network service shall mean all "basic serwces a ,, "additional services" offered by the Grantee. Grantee means all persons including, but not limited to, subsidiaries, parents or affiliate companies, associations or organizations having any rights, powers, privileges, duties, liabilities or obligations, under this article, and under the franchise ordinance, collectively called the "franchise," and also includes all persons having any title to or interest in the system, whether by reason of the franchise itself directly or by interest in a subsidiary, parent or affiliate company, association or organization by any subcontract, transfer, assignment, management agreement or operating agreement or an approved assignment or transfer resulting from a foreclosure of a mortgage security agreement or whether otherwise arising or created, and shall include the lawful successor, transferee, or a assignee of such franchisee or Grantee. Head end shall mean the land, electronic processing equipment, antennas, tower, building and other appurtenances normally associated with and located at the starting point of a cable television system, excluding the studio. Hub configuration means a cable television system design technology wherein all transmission paths either originate or terminate at a central location within the community. Installation shall mean the extension and/or construction of the system from the main trunk and/or feeder cable to subscribers' terminals except where such a procedure is required by this a~ticle without charge when it will mean the extension and/or construction of the system to one point in a designated building. Local distribution center shall mean a facility, within the community remote from but connected to the "hub," which distributes signals from the "hub" to a specified area in the cable television system. Local distribution center shall mean a facility which the originates from a "local distribution center" as opposed to the "hub." May is permissive. Network noise means that combination of undesired and fluctuating disturbances within a cable television channel, exclusive of undesired signals of discrete frequency which degrade the reproduction of the desired signal and which are due to modulation processes, thermal effects and other noise-producing effects, not including hum. Network noise is specified in terms of its RMS voltage or its mean power level as measured in a four-MHz band above the lower channel boundary of a cable television system. New housing area shall mean any area containing any newIv constructed, rehabilitated, or restored residential or commercial unit which does not exist prior to the effective date of the franchise. 6 Physical miles of plant shall mean total miles of trunk, feeder,super-trunk, and fiber optic cable. Person means an individual, partnership, association, organization or corporation or any lawful successor transferee. Public-rights-of-way orstreets andpublic grounds means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways, utility easements or other public right-of-way now or hereafter held by the City which shall entitle the City and the Grantee to the use thereof for the purpose of installing and maintaining the Grantee's cable television system. No reference herein, or in any franchise, to the "streets and public grounds" shall be deemed to be a representation or guarantee by the City that its title to any property is sufficient to permit its use for such purpose, and the Grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the City as the City may have the undisputed right and power to give. Reasonable notice shall mean the provision of Dotice of contemplated action delivered at least forty-eight (48) hours prior to such action. Resident means any person residing in the City or as otherwise defined by applicable law. Residentialsubscr/ber means a subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession. Sale shall include any sale, asset exchange or offer for sale. Shall~and must means each is mandatory. Strand mile shall mean messenger strand as measured from pole to pole without taking into consideration sag or downguys, and for buried plant, actual trench feet. Studio shall mean the land, electronic processing equipment, towers, building, cameras, lights and other appurtenances normally associated with and located at the Grantee's local origination and/or public access plants of a cable television system, excluding the head end. Subscriber terminal means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control. System facilities means the cable communications system constructed for use within the City, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the City designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio, radio, television and electronic signals to and from subscribers, in the City and any other equipment or facilities located within the corporate limits of the City intended for the use of the cable communications system; provided, however, such system facilities excludes 7 building, contracts, facilities, and equipment where its sole use is for providing service to other system facilities located outside the City limits. Subsrant/ally completedmeans operation will be considered substantially completed when sufficient distribution facilities have been installed so as to permit the offering of "full network services" to at least ninety (90) percent of the dwelling units in the service area to which access is legally and reasonably available. Terminal/so/at/on means at any subscriber terminal, the attenuation between that terminal and any other subscriber terminal in that network. Upstream means a signal originating from a terminal to another point in the cable television system including video, audio or digital signals for either programs or other uses such as security alert services, etc. Sec. 12-4-3: Cable Television Administrator and Broadband Telecommunications Commission, The City Manager is hereby authorized to appoint a Cable Television Administrator for the purpose of exercising the City's continuing administration of the franchise. Such responsibility shall include but not be limited to the following matters: Receive and investigate such complaints, disputes or disagreements as may be directed or referred to the City of Iowa City, Iowa, between subscribers or potential subscribers and Grantees of a cable television system and other distribution systems interconnected with the cable television system, not first able to resolve their differences. =Report recommendations upon complaints, disputes or disagreements after investigation to the Broadband Telecommunications Commission for the issuance of finding, Review and audit reports, records, communications and Grantee regulations submitted to the City of Iowa City, Iowa, and conducting such inspections of the system as may be necessary in support of such review as provided for in the Cable Television Enabling Ordinance. Work with the public and the media to assure that all tariffs, rates, charges and rules pertinent to the operation of the cable television system in the City of Iowa City, iowa, are made available for inspection bV the public at reasonable hours and upon reasonable request. Confer and coordinate with the Grantee on the interconnection of the City's cable television system with other similar networks. 6. Advise the Broadband Telecommunications Commission. Other such duties as the City Manager or Broadband Telecommunications Commission may assign. 8 8. Promote usage and understanding of the access channels. Research and recommend new technologies that may be useful to the City, community, and cable system. Commission established: Within thirty (30) days of the granting of the first franchise, there shall be appointed a Commission to be known as the Broadband Telecommunica- tions Commission. Composition and term: The Broadband Telecommunications Commission shall consist of five (5) citizens of the City appointed by the City Council for a term of three (3) years; except, that the first appointees shall be appointed one ( 1 ) for ~ term of one { 1 ) year, two (2) for a term of two (2) years and two (2) for a term of three (3) years; and thereafter, each shall be appointed for a term of three (3) years. Following system completion, it is recommended that a majority of the members be subscribers to the system at the time of their appointment. Powers and duties: The duties of the Broadband Telecommunications Commission shall be as follows: Resolving disputes or disagreement between subscribers, potential subscribers and Grantee should such parties be unable first to resolve their dispute. The Broadband Telecommunications Commission shall conduct a public hearing upon any petition by any person seeking resolution of a dispute concerning the operation of any franchise granted hereunder. The hearing shall be conducted pursuant to the Iowa Administrative Code, and following such hearing, the Broadband Telecommunica- _tions CommisSion shall issue its finding or determination. Said finding or decision -shall be final, and any person aggrieved may seek relief therefrom in the District Court of Iowa as provided by State law. Reviewing and auditing reports submitted to the City as required and said such other correspondence as submitted to the City concerning the operation of the cable television system so as to insure that the necessary reports are completed and fulfilled pursuant to the terms of this ordinancs. e Work with the public and the media to assure that all records, rules and charges pertinent to the cable television system in the City of Iowa City are made available for inspection at ressonable hours upon reasonable notice. Confer with the Grantee and advise on the interconnection of the City's cable system with other cable and communications systems. · Subsequent to the initial franchise, solicit, review and provide recommendations to the City Council for selection of applicants for franchise under this ordinance. Initiate inquiries, receive requests for review of rates charged by the Grantee and provide recommendation on such actions to the City Council. 9 Conduct evaluations of the system at least every three (3) years with the Grantee and, pursuant thereto, make recommendations to the Council concerning system improvements and amendments to this ordinance or any franchise agreement. Establish and administer sanctions as authorized by the City Council to insure compliance with this ordinance. To make recommendations to the Grantee of the cable television system and to the educational and governmental users of the educational and governmental access channels. 10. To insure that the Grantee makes the public access channel available to all residents of the City on a nondiscriminatory basis. 11. To assure that the operation of'the public access channel be free of program censorship and control. 12. To perform such other duties and functions relative to public access channels as may be appropriate in order to maximize its use among the widest range of individuals, institutions and other organizations within the City. This shall include recommendations to the City Council for utilization of the annual franchise payment. Rules and regulations: The Broadband Telecommunications Commission shall adopt such rules and regulations as are necessary to carry out its functions and to insure that due notice is given to all parties concerning any hearing on any complaints to said Broadband Telecommunications Commission and the hearings are held promptly in accordance with reasonable notice to all parties. The Broadband Telecommunications Commission shall also'~ave such powers to include the election of its own officers. Sec. 12-4-4: Regulatory jurisdiction and procedures. Continuing regulatory jurisdiction: The City shall have continuing regulatory jurisdiction and supervision over the operation of any franchise granted hereunder and may from time to time adopt such reasonable rules and regulations as it may deem necessary for the conduct of the business contemplated thereunder. Provided, however, such exercise of rights or powers subsequent to the effective date of a franchise will not impair the rights of the Grantee thereunder, and if locally imposed, place an undue financial burden on such Grantee. B. Regulatory procedures: The Broadband Telecommunications Commission shall consider any inquiry or proceeding, excluding those described in Paragraphs 2 and 3 below, requiring City Council action to be taken in, regard to the cable television system or franchise, whether upon application or request by the Grantee or any other party or on its own motion and shall submit such consideration, together with the Broadband Telecommunications Commission's recommendation, to the City Council. Any action by the City Council on any Broadband Telecommunications Commission recommendation shall be taken only after thirty (30) days notice of said proposed 10 action, inquiry or proceeding is published in the official newspaper having general circulation and a copy of said notice is served upon the Grantee. The Grantee shall have an opportunity to respond at the hearing and/or in writing. Members of the public shall have an opportunity to respond or comment in writing on the proposed action and appear at said proceeding or hearing; however, such hearing or proceeding shall be set no later than ninety (90) days after notice to the Grantee and the City Council shall act upon this proceeding within one hundred eighty (180) days of the notice of hearing unless such time is extended by agreement between the City Council and the Grantee. The decision of the City Council shall become a final determination. Rate regulation procedures shall be conducted in accordance with the timeframe established in Division 2, Rate Regulations. The City shall have one hundred twenty (120) days to act upon any request for approval of a transfer that contains or is accompanied by such information as is required in accordance with FCC regulations and by the City. If the City fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the City agree to an extension of time. The public notice required by this section shell state clearly the action 'or proposed action to be taken, the time provided for response, including response by the public, the person or persons in authority to whom such responses shall be addressed and such other procedures as may be specified by the City Council. If a hearing is to be held, the public notice shall give the date, location and time of such hearing. The .=Grantee will be provided with reasonable notice for any hearing conducted in regard to its operation. C. Triennial franchise review: On or about the third and sixth anniversaries of the effective date of the franchise, the City will schedule a public meeting or meetings with the Grantee to review the franchise performance, plans and prospects. The City may require the Grantee to reasonably make available specified records, documents and information for this purpose, and may inquire in particular whether the Grantee is supplying a level and variety of services equivalent to those being generally offered at that time in the industry in comparable market situations. The City shall first confer with th'e Grantee regarding modifications in the franchise which might impose additional obligations on the Grantee, and the Grantee may in turn seek to negotiate relaxations in any requirements previously imposed on it which are subsequently shown to be impractical. Within thirty (30) days of the conclusions of such negotiations, the City may direct the Grantee to show cause why specified terms and conditions should not be incorporated into the franchise and the Grantee mav similarly file with the City a written request that specified obligations of its franchise be removed or relaxed. Implementation of such requests shall correspond as nearly as possible with the 11 procedures set fvrth herein. The Broadband Telecommunications Commission will recommend to Council changes in the franchised rights and obligations of the Grantee only if it finds from all available evidence that such changes will not impair the economic viability of the system or degrade the attractiveness of the system's service to present and potential subscribers. Expiration: Upon completion of the term of any franchise granted under this ordinance, the City may in its sole discretion grant or deny renewal of the franchise of the Grantee in accordance with the provisions of the Cable Act. Sec. 12-4-5: Significance of franchise. Ao Franchise nonexclusive: Any franchise granted hereunder by the City of Iowa City, Iowa, shall not be exclusive and the City reserves the right to grant a franchise to any person, firm, company, corporation or association at any time, The grant of one franchise does not establish priority for use over the other present or future permit or franchise holders or the City's own use of the streets and public grounds. The City shall at all times control the distribution of space in, over, under or across all streets or public grounds occupied by the cable communications system, Franchise amendable: The scope of any franchise granted hereunder shall be deemed amendable from time to time by mutual consent, to allow the Grantee and the City to innovate and implement new services and developments. Privileges must be specified: No privilege or exemption shall be inferred from the granting of any franchise unless it is specifically prescribed. Nothing in this article shall be deemed to require the granting of a franchise when in the opinion of the Council it would not be in th~ public interest to do so. Authority granted: Any franchise granted hereunder shall give to the Grantee the right and privilege to construct, erect, operate, modify and maintain in, upon, along, above, over and under streets which have been or may hereafter be dedicated and open to public use in the City, towers, antennas, poles, cables, electronic equipment and other network appurtenances necessary for the operation of a cable television system in the City, subject to limitations contained in this ordinance. Previous rights abandoned: A franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by a Grantee or any successor pertaining to the construction, operation or maintenance of a cable communications system in the City. The acceptance of a franchise shall operate, as between Grantee and the City, as an abandonment of any and all such rights, privileges, powers, immunities and authorities within the City. All construction, operation and maintenance by the Grantee of any cable system in the City shall be under the franchise and not under any other right, privilege, power, immunity or authority, Subject to other regulatoq/ agencies' rules and regulations: The Grantee shall at all times during the life of anv franchise granted hereunder be subject to all lawful exercise of the police power by the City and other duly authorized regulatory state and federal bodies. 12 Pole use agreements required: No franchise granted hereunder shall relieve the Grantee of any obligation involved in obtaining pole or conduit use agreements from the gas, electric and telephone companies, or others maintaining poles or conduits in the streets of the City, wherever the Grantee finds it necessary to make use of said poles or conduits. H. No right of property: The award of any franchise hereunder shall impart to the Grantee no right of property in or on City-owned property. I. Franchise binding: All provisions of this article and any franchise granted hereto shall be binding upon the Grantee, its successors, lessees or assignees. General City ordinances: Any franchise granted by the City is hereby made subject to the general ordinance provisions now in effect and hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permits, taxes, fees to be paid, or manner of construction. No waiver of rights: No course of dealing between the Grantee and the City nor any delay on the part of the City in exercising any rights hereunder shall operate as a waiver of any such rights of the City or acquiescence in the actions of the Grantee in contraven- tion of rights except to the extent expressly waived by the City or expressly provided for in the franchise. Sec. 12-4-6: The cable television franchise. Franchise required: No person, firm, company, corporation or association shall construct, install, maintain or operate within any public street in the City, or within any other publi.c property of the City, any equipment or facilities for the distribution of cable service over a cable television system to any subscriber unless a franchise authorizing the use of the streets or properties or areas has first been obtained pursuant to the provisions of this article, and unless such franchise is in full force and effect. Franch/se applications: Public Notice of "Request for Proposals." The City may invite applications for a cable television franchise by means of a public notice advertising the availability of its "Request for Proposals." 1. The public notice shall contain, but need not be limited to: a. A description of the franchise area which is sought. A statement that a formal "Request for Proposals" is available to prospective applicants from a City official whose name, address, and telephone number are specified. A statement that applications for the franchise must be submitted in writing in the form and manner specified in the "Request for Proposals" no later than a date certain. 13 Fe d. A statement that all applications will be made available for public inspection during normal business hours at a specified location. Request for proposals; Prior to inviting any applications for any television franchise, the City shall prepare a "Request for Proposals" that shall contain, but need not be limited to, the following: A description of the cable television system and services desired by the CiW including any system specifications established by the City. 2. A statement specifying the form that all applications shall follow. A statement indicating the amount of the application fee (if any) to be submi..tted with the application, and the manner in which such fee is to be submitted. A statement that all applications must contain the information required by the "Request for Proposal." 5. The closing data for the submission of applications. The name, address, and telephone number of the City official(s) who may be contacted for further information· Review of qualifications: Specific permission to operate a cable television system under the provisions of this article may be granted by the City Council of the City to any ,Grantee after: a review of the legal, character, financial, technical qualifications; an analysis of adequacy and feasibility of the Grantee's construction arrangements; an assessment of whether public, educational and governmental access channel and institutional network capacity, equipment, facilities, services, and financial support are reasonable; a determination of whether the proposal meets the future cable communica- tions needs of the City; and a review of the provision of other such information, equipment, services and support as required by the City, and after the Citv Council has approved the Grantee's qualifications as a part of a public proceeding affording due process. City discretion: The City, at its discretion, may reject any application for a franchise. In awarding a franchise, the City: shall allow the applicant's cable system a reasonable period of time to become capable of providing cable service to all households in the franchise area; may require adequate assurance that the cable operator will provide adequate public, educational, and governmental access channels and institutional network capacity, equipment, facilities, services, and financial support; shall determine the ability of the proposal to meet the future cable communications needs of the City; and may require adequate assurance that the cable operator has the financial, technical, or legal qualifications to provide cable service. Requirement for public hearing on reasonable notice: The City shall conduct a public hearing prior to awarding any cable television franchise. The hearing shall be preceded by reasonable notice to each of the franchise applicants and to the public, and shall be conducted by the City in accordance with the following procedures: 14 There shall be an agenda for the hearing which shall specify the proposal(s) to be considered at the hearing. Every person who has applied for a cable television franchise shall appear at the hearing either in person or by authorized representative. The application of any applicant not so appearing shall not be further considered, except for good cause shown. All applicants shall be given opportunity to participate in the hearing, but nothing contained herein shall limit the power of the presiding officer to establish reasonable time limits and otherwise limit repetitive statements or questions. 4. The notice of hearing shall: a. Conform to all relevant state and local laws and ordinances. b. Describe the agenda to be considered at the public hearing. Indicate that copies of all franchise applications are available for public inspection during normal business hours at a place to be specified in the notice. Duration of franchise: Upon filing by the Grantee of the proper acceptance, the bond and the required insurance and security fund, the franchise shall take effect as provided in Section 12-4-10 and shall continue in full force and effect for a term to be set by the Council in the franchise. H. Exer~t/ons: Paragraphs B, C, D, E, and F of this section do not apply to an incumbent operator afforded renewal rights under Section 626 of the Cable Act. Sec. 12-4-7: Operation of franchise. Operation to be/n accordance with rules: The Grantee shall maintain and operate its cable television system in accordance with the Rules and Regulations of the Federal Communications Commission, the State of Iowa and/or the City as are incorporated herein or may be promulgated. interrupt/on of service; notification: The Grantee, whenever it is necessary to interrupt service over the cable television system for the purpose of network maintenance, alteration or repair, shall do so at such time as will cause the least amount of inconve- nience to the subscribers, and unless such interruption is unforeseen and immediately necessary, the Grantee shall give reasonable notice thereof to the affected subscribers. Office and phone for complaints: The Grantee shall maintain an office within the City limits which shall be open during all normal business hours, including some week night and Saturday hours, have a listed local telephone number and be so operated that complaints and requests for repairs or adjustments may be received at any time. 15 Ee Go Service records maintained: The Grantee shall at all times make and keep a list of all complaints and interruptions or degradation of service received or experienced during the term of franchise. The records maintained above shall also include complaint response time and service restoration period and shall be continuously open to inspection, examination or audit, subject to subscriber privacy rights pursuant to Section 631 of the Cable Act, by any duly authorized representative of the City or member of the public. Grantee rules and regulations: The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonable and necessary to enable the Grantee to exercise its rights and perform its obligations under this article and any franchise granted hereunder. Rules to be in conformance with other regulations: None of such rules, regulations, terms and conditions promulgated under subsection (f) above shall be in conflict with the provisions hereof or the laws of the state, or the Rules and Regulations of the Federal Communications Commission or any rules and regulations promulgated by the City in the exercise of their regulatory authority granted hereunder. 2. All rules to be filed with City: Three (3) copies of all rules, regulations, terms and conditions promulgated under subsection (f) above, together with any amendments, additions or deletions thereto, shall be kept currently on file with the City Clerk and another copy thereof shall be maintained for public inspection during normal business hours at Grantee's office in the City and the copy shall be provided to the Broadband Telecommunications Commission; no such rules, regulations, terms, conditions or amendments, additions or deletions thereto shall take effect unless and until so filed and maintained. This paragraph is not intended to apply to the Compan¥'s personnel and other internal rules and regulations. Subscribers' antennas: The Grantee shall not require the removal or offer to remove or provide any inducements for removal of any potential or existing subscriber's antenna as a condition of provision of service. Antenna switch: The Grantee, upon request from any subscriber, shall install at a reasonable charge a switching device to permit a subscriber to continue to utilize the subscribers own television antenna. Service response and rebate: The Grantee shall provide "same day service" response, seven (7) days a week for all complaints and requests for repairs or adjustments received prior to 2:00 p.m. each day, In no event shall the response time for calls received subsequent to 2:00 p.m. exceed twenty-four (24) hours, State of the art: This section shall be reviewed by the City during its triennial reviews whose timeframes are set forth in Section 12-4-4 (C). In the event that the Grantee, its parent company, management firm or affiliates have installed state of the art improve- ments in any system of similar size owned by Grantee, its parent company, management firm or affiliates, which increase channel capacity and provide additional cable service, make bi-directional capacity operational from the home, provide improvements in technological performance, provide for interactive services, and/or other substantial 16 improvements, then the Grantee shall make said improvements available to the City of Iowa City subscribers within one (1) year. The City shall hold a hearing to determine whether state of the art technology is required hereunder, Such hearing shall afford the Grantee an opportunity to make a presentation on the state of the art and whether the conditions specified herein indicate that a state of the art change is needed, The City may require the Grantee to implement state of the art changes which meet the threshold specified herein, Sec. 12-4-8: Rights reserved to the City. Governing requirement: At all times during the term of the franchise, Grantee shall comply with all laws, rules or regulations of the City, state or federal governments, their regulatory agencies or commissions which are now applicable or may be applicable hereafter to the construction and operation of the cable communications svstem, including without limitation, all laws, ordinances, or regulations now in force or hereafter enacted. Nothing herein shall be deemed a waiver of Grantee's right to challenge the validiW of any such law, rule or regulation. Change in law or regulation: Notwithstanding any other provisions of this ordinance to the contrary, the Grantee shall at all times comply with all laws and regulations of the local, state and federal government. in the event that any actions of the state or federal government or any agency thereof, or any court of competent jurisdiction upon final adjudication, substantially reduce in any way the power or authority of the City under this ordinance or the franchise, or if in compliance with any local, state, or federal law or regulation, the Grantee finds conflict with the terms of this ordinance, the franchise, or any law or regulation of the City, then as soon as possible following knowledge thereof, the Grantee shall notify the City of the point of conflict believed to exist between such law or regulation and the laws or regulations of the City, this ordinance and the franchise. The City, at its option, may notifv the Grantee that it wishes to negotiate those provisions which are affected in any way by such modification in regulations or statutory authority. Thereafter, the Grantee shall negotiate in good faith with the City in the development of alternate provisions which shall fairly restore the City to the maximum level of authority and power permitted by law. The City shall have the right to modify any of the provisions to such reasonable extent as may be necessary to carry out the full intent and purpose of this ordinance and the franchise, subject to applicable federal and state law. Authority: The City reserves the right to exercise the maximum plenary authority, as may at any time be lawfully permissible, to regulate the cable television system, the franchise and the Grantee. Should applicable legislative, judicial or regulatory authoritms at any time permit regulation not presently permitted to the City, the City and the Grantee shall negotiate in good faith to determine what additional regulation by the City shall be permissible. Right of amendment reserved to City: The City may from time to t~me, add to, modify or delete provisions of this article as it shall deem necessary in the exercise of its regulatory powers. Provided, however, such exercise of rights or powers subsequent to the effective date of a franchise will not impair the rights of the Grantee thereunder, and if locally imposed, place an undue financial burden on such Grantee. Such additions or 17 revisions shall be made only after a public hearing for which the Grantee shall have received written notice at least thirty (30) days prior to suci~ hearing. Grantee agrees to City's rights: The City reserves every right and power which is required to be reserved or provided by an ordinance of 'the City, and the Grantee by its acceptance of the franchise agrees to be bound thereby and to comply with any action or requirements of the City in its lawful exercise of such rights or powers which have been or will be enacted or established, subject to federal and state law. City's right of intervention: The City shall have the right to intervene and the Grantee specifically agrees by its acceptance of the franchise not to oppose such intervention by the City in any suit or proceeding to which the Grantee is a party, provided, however, Grantee shall not be obligated to indemnify the City for any such suit. Gt Powers of the City: Neither the granting of any franchise nor any provision governing the franchise shall constitute a waiver or bar to the exercise of any governmental right or power of the City. City's right of inspection: The City reserves the right during the life of any franchise granted hereunder to inspect all system facilities and property and supervise all construction or installation work performed subject to the provisions of this article and to perform network measurements to'insure compliance with the terms of the article. City's right of acquisition: Upon expiration of the term of the franchise or revocation or other termination as provided by law, the City shall have the right to purchase the cable television system as specified in Section 12-4-11 ,D. City'~ right of network installation: The City reserves the right during the life of any franchise granted hereunder to install and maintain free of charge upon or in the poles and condu~tS Ot tile (~rantee any w~re and pole fixtures necessary for municipal networks, on the following conditions: that such installation and maintenance thereof does not interfere with the operation of the Grantee; that such fixtures be used for governmental and educational purposes, and the City agrees to indemnify the Grantee for such use. Sec. 12-4-9: Applications for franchise. No franchise may be granted until the applicant has successfully completed the application procedure. Proposal bond and filing fee: All applicants must provide a proposal bond as required herein and pay a nonrefundable filing fee to the City of ten thousand dollars ($10,000.00) the time the application is submitted. This bond and filing fee does not apply to an incumbent operator afforded renewal rights under Section 626 of the Cable Act. Request for proposaL' All applicants must complete the request for proposal (RFP) issued by the City which shall include but not be limited to the 18 10. Name and address of applicant: The name and business address of the applicant, date of application and signature of applicant or appropriate corporate officer(s). Description of proposed operation: A general description of the applicant's proposed operation, including but not limited to business hours, operating staff, maintenance procedures beyond those required in the article, manage- ment and marketing staff complement and procedures and, if available, the rules of operation for public access. Signal carriage: A statement of the television and radio services to be provided, including both off-the-air and locally originated signals. Special services: A statement setting forth a description of the automated services proposed as well as a description of the funds, services, and production facilities to be made available by the Grantee for the public, municipal and educational channels required to be made available by the provisions of this article. Schedule of charges: A statement of the applicant's proposed schedule of charges as set forth herein. Corporate organization: A statement detailing the corporate organization of the applicant, if any, including the names and addresses of its officers and directors and the number of shares held by each officer and director. Stockholders: A statement identifying the number of authorized outstanding shares of applicant's stock including a current list of the names and current addresses of its shareholders holding three (3%) per cent or more of applicant's outstanding stock. Intra-company relationships: A statement describing all intra-company relationships of the applicant, including parent, subsidiary or affiliated companies. Agreements and understandings: A statement setting forth all agreements and understandings, whether written or oral, existing between the applicant and any other person, firm, group or corporation with respect to any franchise awarded hereunder and the conduct of the operation thereof existing at the time of proposal submittal. Financial statement: If applicant is a corporation, audited financial statements for the two (2) previous fiscal years. If applicant is a partnership, copies of the "U.S. Partnership Return of Income" (IRS Form 1065) for the two (2) previous fiscal vears. If the applicant is a sole proprietorship, copies of the "U.S. Individual Income Tax Return" (IRS Form 1040) for the two (2) previous fiscal years. 19 11. 12. 13. 14. 15. 17, 18. 19. Financial projection: A ten-year operations pro forma which shall include the initial and continuous plant investment, annual profit and loss statements detailing income and expenses, annual balance sheets and annual levels of subscriber penetration. Costs and revenues anticipated for voluntary services shall, if presented, be incorporated in the pro forma as required in this article, but shall be separately identified in the pro forma. Financial support: S(Jitable written evidence from a recognized financing institution, addressed to both the applicant and to the City, advising that the applicant's financial ability and planned operation have been analyzed by the institution, and that the financing institution is prepared to make the required funds available to applicant if it is awgrded a franchise. Construction timetable: A description of system construction including the timetable for provision and extension of service to different parts of the City. Technical description: A technical description of the type of system proposed by the applicant, including but not limited to, system, configuration (i.e.I hub, dual cable), system capacity, two-way capability, etc. Technical statement: A statement from the applicant's senior technical staff member or consultant advising that he/she has reviewed the network description, the network technical standards, performance measurements, channels to be provided, service standards, construction standards and conditions of street occupancy as set forth in or required by this ordinance, and that the applicant's planned network and operations will meet all said requirements. Existing franchises: A statement of existing franchises held by the applicant including when the franchises were issued and when the systems were constructed and the present state(s) of the system(s) in each respective governmental unit, together with the name and address and phone number of a responsible governmental official knowledgeable of the applicant. Convictions: A statement as to whether the applicant or any of its officers or directors or holders of three (3) per cent or more of its voting stock has in the past ten (10) years been convicted of or has charges pending for any crime other than a simple misdemeanor traffic offense, and the disposition of such case. Operating experience: A statement detailing the prior cable television experience of the applicant including that of the applicant's officers, manage- ment and staff to be associated, where known, with the proposed franchise. Franchise renewal information: Subject to Section 626 of th~ Cable Act, if an application is for renewal of a franchise, the proposal must include, in addition to the information required in subsections (1) through (18) above: 20 Do A summary of the technical, financial and programming history of the network since the granting of the original franchise. A statement and timetable that outlines all proposed changes, expansion or improvements in the system as to services, programming or technical specifications during the forthcoming three-year review period. SpecialintereSts: In order to maximize the potential of the cable television system, comparative evaluations of applications will reflect the City's special interest in the following areas: Programming and production assistance: A proposal for funding facilities, equipment or personnel beyond those required elsewhere to be designated to effect and promote public, educational, and government access, and community programming development. Discrete carriage capacity: A proposal for the origination, experimental uses and/or interconnection by or of agencies specified in Section 12-4-17 for specialized needs and a plan accommodating such future needs as may arise. Bi-directional capacity: A proposal for effectuating the cable television svstem's bi-directional capacity and integration of the City's interactive system. Multi-origination: A proposal for system construction in such a way that it is possible to allow occasional simultaneous cablecasting of different programs on the same channel to different parts of the CiW. University of Iowa: A proposal for interconnecting the City's cable television system with a University of Iowa cable network as specified by the university so that residents of the City will benefit from the university's resources. 6. Converters: A proposal for inclusion of converters or other subscriber technology as part of the basic service. Institutional network: A proposal to provide bi-directional interconnection of video, voice, audio and data among public sector locations and interconnect to the subscriber network. 8. Home interactive: A proposal to provide two-way services to subscribers homes. Addit/onal requirements: The application for franchise shall respond specifically, and in sequence, to the RFP. Twenty (20) copies of th, e application shall be supplied to the City. The City may, at its discretion, consider such additional information as part of the application. Supplementation to applications: The City reserves the right to require such supplementary, additional or other information as the City deems reasonably' 21 Sac, A. necessary for its determinations. Such modifications, deletions, additions or amendments to the applic. ation shall be considered only if specifically requested by the City. 12-4-10: Acceptance and effective date of franchise. Franchise acceptance procedures: Any franchise awarded hereunder and the. rights, privileges and authority granted thereby shall take effect and be in force from and after the sixtieth (60th) day following the award thereof, provided that within sixty (60) days following award from the effective date the Grantee shall file with the City the following: A notarized statement by the Grantee of unconditional acceptance of the franchise, and 2. A certificate of insurance as set forth in Section 12-4-14, and 3. A letter of credit as set forth in Section 1 2-4-I 5 herein, and Reimbursement to the City for the costs of publication of this article, and cost of the initial franchising process, and Written notification of the Grantee's location and address for mail and official notifications from the City. Forfeiture of proposal bond: Should the Grantee fail to comply with subsection (A) above, it shall acquire no rights, privileges or authority under this article whatever, and the amount of the proposal bond or certified check in lieu thereof, submitted with its application, shall be forfeited in full to the City as liquidated damages. Grantee to have no recourse: The Grantee shall have no monetary recourse whatsoever against the City for any loss, cost, expense or damage arising out of any provision or requirement of this article or its regulation or from the City's lawful exercise of its authority to grant additional franchises hereunder. This shall not include negligent acts of the City, its agents or employees. Acceptance of power and authority of City: The Grantee expressly acknowledges that in accepting any franchise awarded hereunder, it has relied upon its own investigation and understanding of the power and authority of the City to grant this franchise. Inducements not offered: The Grantee, by accepting any franchise awarded hereunder acknowledges that it has not been induced to enter into the franchise by any understand- ing or promise or other statement, whether verbal or written, by or on behalf of the City concerning any term or condition of this franchise that is not included in this article. Sec. 12-4-11: Termination of franchise. A. Grounds for revocation: The City reserves the right to revoke any franchise and rescind aJl rights and privileges associated with the franchise in the following circumstances: 22 If the Grantee should default in the performance of any of its material obligations under this a~ticle or the franchise and fails to cure the default within sixty (60) days after receipt of written notice of the default from the City,' or such longer time as specified by the City. If the Grantee should fail to provide or maintain in full force and effect the construction bond, letter of credit and liability and indemnification coverages as required in this article. If a petition is filed by or agains. t the Grantee under the Bankruptcy Act or any other insolvency or creditors' rights law, state or federal, and the Grantee shall fail to have it dismissed. If a receiver, trustee or liquidator of the Grantee is applied for or appointed for all or part of the Grantee's assets. If the Grantee makes an assignment for the benefit of creditors. If the Grantee violates any order or ruling of any State or Federal regulatory body having jurisdiction over the Grantee, unless the Grantee or any party similarly affected is lawfully contesting the legality or applicability of such order or ruling and has received a stay from a Court of appropriate jurisdiction. 7. If the Grantee evades any of the provisions of this ordinance or the franchise. 8. If the Grantee practices any fraud or deceit upon the City or cable subscribers. ~Subject to Sections 12-4-19 and 12-4-20, if the Grantee's construction schedule is delayed later than the schedule contained in the franchise or beyond any extended date set by the City. 10. If the Grantee materially misrepresents facts in the application for a franchise. 11. If the Grantee ceases to provide services over the cable communications system for seven (7) consecutive days 'for any reason within the control of the Grantee. 1 2. If the Grantee fails to comply with any material access provisions of this ordinance or the franchise. Procedure prior to revocation: Upon the occurrence of any of the events enumerated in subsections (A)(1), (2), (11 ), (12), and (13) of this section, the City Council may, after hearing, upon thirty (30) days' written notice to the Grantee citing the reasons alleged to constitute cause for revocation, set a reasonable time in which the Grantee must remedy the cause. If, during the thirty-day period, the cause shall be cured to the satisfaction of the City, the City may declare the notice to be null and void. If the Grantee fails to remedy the cause within the time specified, the Council may revoke the franchise. In any event, before a franchise may be terminated, the Grantee must be provided with an opportunity to be heard before the City Council· 23 Effect ofpending litigation: Unless a stay is issued by a Court of appropriate jurisdiction, pending litigation or any appeal to any regulatory body or court having jurisdiction over the Grantee shall not excuse the Grantee from the performance of its obligations under this ordinance or the franchise. Failure of the Grantee to perform material obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section. Purchase of system by City: If a renewal of a franchise held by a Grantee is denied and the City acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be: At fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the franchise itself, or In the case of any franchise existing on the effective date of this title, at a price determined in accordance with the franchise if such franchise contains provisions applicable to such an acquisition or transfer. If a franchise held by the Grantee is revoked for cause and the City acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be at an equitable price. Restoration of public and private property: In removing its plants, structures and equipment, the Grantee shall refill at its own expense any excavation made by it and shall leave all public ways and places and private property in as good condition as existed prior to the Grantee's removal of its equipment and appliances, without affecting the electric or telephone cables, wires or attachments. The City shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. Liability insurance, indemnity, the performance bond and security fund provided in this article shall continue in full force and effect during the period of removal. Restoration by City, reimbursement of costs: If the Grantee fails to complete any work required by subsection (D) above or any work required by other law or ordinance within the time established and to the satisfaction of the City, the City may cause such work to be done and the Grantee shall reimburse the City the costs thereof within thirty (30) days after receipt of an itemized. list of such costs, or the City may recover such costs as provided in this article. Lesser sanctions: Nothing shall prohibit the City from imposing lesser sanctions or censures than revocation. Expiration; extended operation: Upon the expiration of a franchise, the City may, by resolution, on its own motion or request of the Grantee, require the Grantee to operate the franchise for an extended period of time not to exceed six (6) months from the date of any such resolution under the same terms and conditions as specified in this ordinance and the franchise. All provisions shall continue to apply to operations during an extension period. The City shall serve written notice at the Grantee's business office of intent to extend under this section at least thirty (30) days prior to expiration of the original franchise or any extensions thereof. 24 Sac. 12-4-12: Reports and records of the Grantee. Annual financial reports required: The Grantee shall file annually with the City Clerk not later than three (3) months after the end of its fiscal year during which it accepted a franchise hereunder and within four (4) months after the end of each subsequent fiscal year, two (2) copies of: 1. The report to its stockholders; and An annual, fully-audited and certified revenue statement from the previous calendar year for the Iowa City system, including subscriber revenue from each category of service and every source of non-subscriber revenue· Annual facilities report required: Within thirty (30) days of a request by the City, the Grantee shall file annually with the City Clerk two (2) copies of a total facilities report setting forth the total physical miles of plant installed or in operation during the fiscal year and a strand map showing the location of same. Annual service record report required: The Grantee shall make available to the City for its inspection at the Grantee's office, a list of all trouble complaints and network "downtime" received or experienced during the fiscal year. All such submitted data shall also include complaint disposition and response time. Dw Annual measurements report required: The Grantee shall within thirty (30) days of a request by the City, provide two (2) copies of a report on the network's technical measurements, as set'forth herein. E. Test~requiredby Citw Technical tests required by City as specified in this ordinance and the franchise shall be submitted within fourteen (14) days of notification. Annual operations reports required: The Grantee shall file annually with the City Clerk not later than three (3) months after the end of its fiscal year during which it accepted a franchise hereunder and within four (4) months after the end of each subsequent fiscal year two (2) copies of the following supplemental information: If a nonpublic· corporation, a list of all current shareholders and bondholders both of record or beneficial· If a public corporation, a list of all shareholders who individually or as a concerted group hold five (5) per cent or more of the voting stock of the corporation. A current Gist of all Grantee's officers and directors including addresses and telephone numbers. The names of both business and residential addresses and phone numbers of the cable television system resident manager and engineer. Two (2) copies of all types of subscriber agreements. Copies of individual subscribers' agreements are not to be filed with the City. 25 Copies of all rules and regulations promulgated by the Grantee during the fiscal year in the conduct of its business in accordance with the provisions of this ordinance. A copy of the annual report{s) of the parent firm(s) which own an interest of more than three (3) per cent or more of the voting stock of the Grantee; and such other annual report(s) of subsidiaries or divisions of the parent firm(s) as the City deems necessary for the enforcement of this ordinance and the franchise. Annual subscriber notifiCatiOn: Copies of all annual subscriber notifications required by the Federal Communications Commission. Application for certificate of cornp/iance: The Grantee shall give formal notice to the City that it is seeking a certificate of compliance from the Federal Communications Commission. Within five (5) calendar days upon filing such a request with the Federal Communications Commission, the Grantee shall file two (2) copies of its application for certification with the City Clerk. Public availabili~ of reports: Such documents and reports as required under this article must be available to the public in the office of the City Clerk, during normal business hours. Subscribers shall be notified of the availability of such reports in ways approved by the Broadband Telecommunications Commission. Correspondence: The Grantee shall, upon request of the City, file with the City Clerk a copy of each petition, application and communications transmitted by the Grantee to, or received by the Grantee from, any federal, state or other regulatory commissions or agencies having competent jurisdiction to regulate and pertaining to the operations of any cable television system authorized hereunder. K, City's access to records: The City reserves the right during the life of any franchise granted hereunder to have access, necessary for the enforcement of the ordinance and the franchise, at all normal business hours and, upon the giving of reasonable notice, to all of the Grantee's books, necessary for the enforcement of contracts, engineering plans, income tax returns, accounting reports, financial statements and service records and other like materials relating to the property and the operation under the franchise, and to all other records required to be kept hereunder. Nothing contained herein shall prevent the Grantee from enjoining the City from reviewing documents relating to proprietary interests not related to its operation under this article in the City's regulatory program. Additional reports. The Grantee shall prepare and furnish to the City at the times and in the form prescribed, such additional reports with respect to its operation, affairs, transactions or property, as may be reasonably necessary and appropriate to the 'performance of any of the rights, functions or duties of the City in connection with this ordinance or the franchise. The Grantee acknowledges that the reports, books and records which must be prepared and furnished to the City in connection with this ordinance or a franchise 26 granted under the ordinance may constitute "public records" under state law and the Grantee may be required to permit examination ar-d copying of such records upon request. If the City receives a demand from any person for disclosure of any information which the Grantee has designated as confidential, the City shall immediately advise the Grantee of the request and provide the Grantee with a copy of any written request. L. Proof of bonds and insurance: Grantee shall submit to the City the required bond, or a certified copy thereof and all certificates of insurance required by this ordinance. Sec. 12-4-13: Franchise payment. Filing fee: Applicants for an initial franchise hereunder shall pay a nonrefundable filing fee to the City of ten thousand dollars ($10,000.00) which sum shall be due and payable at the time of submission of ~he application. Franch~ing compensation: Grantees of a franchise hereunder shall provide an initial payment to the City in an amount equal to the direct costs of granting the initial franchise including but not limited to consultants fees, which sum shall be due and payable concurrently with the Grantee's acceptance of the franchise, to offset the City's costs in the franchise awarding process. Annual franchise payment: Grantees of a franchise hereunder shall pay to the City an annual fee in an amount equal to five (5) per cent of the "annual gross revenues," as defined herein, in lieu of all other City's permits and fees, to be utilized by the Citv to offset its cable television related regulatory .and administrative costs and to maximize awar_eness and use of the public, education, and governmental access and institutional netv¢ork capacity. If the maximum franchise fee allowed by law is greater than five (5) percent, the City may require the higher amount. The franchise payment shall be in addition to any other payment owed to the City by the Grantee and shall not be construed as payment in lieu of municipal property taxes or other state, county or local taxes. The City shall provide the Grantee written notice one hundred and twenty (120) days prior to collection of an increased franchise fee. D. Method of computation; interest: Sales taxes or other taxes levied directly on a per subscription basis and collected by the Grantee shall be deducted from the local annual gross revenues before computation of sums due the City is made. Payments due the City under the provisions of subsection C. above shall be computed quarterly as of March 31, June 30, September 30 and December 31 for the respective quarters of. each year ending on said dates and shall be paid quarterly within three (3) months after each respective computation date at the office of the City Clerk during the City Clerk's regular business hours. The payment period shall commence as of the effective date of the franchise. The City shall be furnished a statement with each payment, by the Grantee's Division Controller, reflecting the total amounts of gross revenue and the above charges, deductions and computations, for the quarterly payment period covered by the payment. 27 In the event that any payment is not made as required, interest on the amount due, as determined from the annual gross revenues as computed by a certified public accountant shall accrue from the date of the required submittal at an annual rate of twelve (12) per cent. The percentages designated in this section mav be amended no more than once each year by the City Council, consistent with increased costs for municipal facilities and supervision and applicable rules of other regulatory agencies. Rights o£recomputation: No acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee under this article of for the performance of any other obligation of the Grantee. All amounts paid shall be subject to audit and recomputation by the City. Sec. 12-4-14: Liability and indemnification. A. Indemnification of franchise: it shall be expressly understood and agreed by and between the City and any Grantee hereunder that the Grantee shall save the City harmless from all loss sustained by the City on account of any suit, judgment, execution, claim or demand which the City may legally be required to pay as a result of the enactment of this article and the award of a franchise to Grantee, except as such suit, judgment, execution, claim or demand may arise from the process or action of selection of*a Grantee or Grantees for award of a franchise as provided herein. Indemnification of City in franchise operation: It shall be expressly understood and agreed by and between the City and any Grantee hereunder that the Grantee shall save the City and its agents and employees harmless from and against all claims, damages, losses and expenses, including attorney's fees sustained by the City on account of any suit, judgment, execution, claim or demand whatsoever arising out of the installation, operation or maintenance of the cable television system by the Grantee, its emplovees or agents, as authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this article and any franchise granted hereunder. This provision shall not apply to acts of the City, its agents or employees. Reimbursement of costs: The Grantee shall pay and by its acceptance of any franchise granted hereunder agrees that it will pay all expenses and costs incurred by the City in defending the City with regard to all damages and penalties mentinned in subsections (a) and (b) above except as such expenses may arise from the process (as above). Should the City decide to hire its own defense, such expenses will be borne by the City. Public 1/ability insurance: The Grantee shall maintain and by its acceptance of any franchise granted hereunder agrees that it will maintain throughout the te~m of the franchise, any extensions thereto or as required in this ordinance, a general comprehen- sive liability insurance policy naming as the additional insured the City, its officers, boards, commissions, agents and employees, in a company registered in the State of Iowa, and which maintains a BEST's rating of "A-" or better, in forms satisfactory to the City Manager, protecting the City and all persons against liability for loss or damage, occasioned bV the operations of Grantee under any franchise granted hereunder, m the amounts of: 28 Two million ($2,000,000.00) for bodily injury or death to any one person, within the limit, however, of three million dollars ($3,000,000.00) for bodily injury or death resulting from any one accident, and 2. One million ($1,000,000.00) for property damage resulting from any one accident· Automobile liability insurance: The Grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of: 1. $1,000,000 for bodily injury and consequent death per occurrence; 2. $1,000,000 for bodily injury and consequent death to any one person; and 3. $500,000 for property damage per occurrence. Insured: At any time during the term of the franchise, the City may request and the Grantee shall comply with such request, to name the City as an additional insured for all insurance policies written under the provisions of this ordinance or the franchise. Inflation: To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three (3) year period of the franchise, applicable to the next three year period, at the sole discretion of the City, upon a finding by the City of increased insurance risks requiring such changed limits. Noti~'e of cancellation or reduction of coverage: The insurance policies mentioned above shall contain an endorsement stating that the policies are extended to cover the liability assumed bV the Grantee under the terms of this article and shall contain the following endorsement: "This policy may not be canceled nor the amount of coverage thereof reduced until thirty (30) days after receipt by the City Manager of a written notice of such intent to cancel or reduce the coverage." Evidence of insurance filed with City Manager: All certificates of insurance shall be filed and maintained with the City Manager during the term of any franchise granted hereunder or any renewal thereof. Extant of liability: Neither the provisions of this article nor any insurance accepted by the City pursuant hereto, nor any damages recovered by the City thereunder, shall be construed to excuse faithful performance by the Grantee or limit the liability of the Grantee under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise. Insurance for contractor and subcontractors: Grantee shall provide coverage for any contractor or subcontractor involved in the construction, installation, maintenance or operation of its cable communications svstem by either obtaining the necessary endorse- 29 ments to its insurance policies or requiring such contractor or subcontractor to obtain appropriate insurance coverage consistent with this section and appropriate to the extent of its involvement in the construction, installation, maintenance or operation of Grantee's cable communications system. Sec. 12-4-15: Bonds. Proposalbond: Each applicant for an initial franchise hereunder shall submit a proposal bond in a form acceptable to the City Manager or a certified check on a bank that is a member of the Federal Deposit Insurance Corporation, payable to the order of the City in an amount of twenW-five thousand dollars ($25,000.00). Said bond shall remain in effect until such time as the applicant accepts the franchise and furnishes both the - construction bond and the letter of credit as provided herein. Construction bond: The Grantee shall maintain and by its acceptance of any franchise granted hereunder agrees that it will maintain through the rebuild or construction of the cable television system as required bythis ordinance, a faithful construction bond running to the City, with at least (2) good and sufficient sureties or other financial guaranties approved by the City Manager, in the penal sum total of one million dollars ($1,000,000.- 00) conditioned upon the faithful performance of the Grantee in the construction or rebuild of a cable television system complying with related provisions of this ordinance and the franchise, and upon the further condition that if the Grantee shall fail to comply with any law, ordinance or regulation governing the construction or rebuild of the cable television system, there shall be recoverable jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of repair, construction, removal or abandonment of any property of the Grantee, plus a reasonable allowance for attorney's fees--and costs, up to the full amount of the bond. In addition, failure to meet construction deadlines shall result in forfeiture of said bond or withdrawal from the construction bond. The bond shall contain the following endorsement: "This policy may not be canceled nor the amount of coverage thereof reduced until thirty (30) days after receipt by the City Manager of a written notice of such intent to cancel or reduce the coverage." Release of the bond: Upon the City's determination that the construction or rebuild of a cable television system is complete, the Grantee shall be notified by the City that the bond required under this section shall be released. D. Letter of credit: The Grantee shall obtain, maintain, and file with the City an irrevocable letter of credit from a financial institution acceptable to the City and licensed to do business in the State in an amount of seventy-five thousand ($75,000.00), naming the City as beneficia~ for the faithful performance by it of all the provisions of this franchise and compliance with all orders, permits and directions of any agency of the City having jurisdiction over its acts or defaults under this contract and the payment by the Grantee of any claims, liens and taxes due the City which arise by reason of the construction, operation or maintenance of the system. The letter of credit shall be 30 released only upon expiration of the franchise or upon the replacement of the letter of credit by a successor Grantee. Within thirty (30) days after notice to it that any amount has been withdrawn from the letter of credit pursuant to subsection D. 1, of this section, the Grantee shall pay to, or deposit with, the City Clerk a sum of money or securities sufficient to restore such security fund to the original amount of seventy-five thousand dollars ($75,000.00) up to a total during the franchise term of $500,000. If the Grantee fails to pay to the City any compensation required pursuant to this article within the time fixed herein; or, fails, after ten (10) days' notice to pay to the City any taxes due and unpaid; or, fails to repay to the City, within such ten (10) days, any damages, costs or expenses which the City shall be compelled to pay by reason of any act or default of the Grantee in connection with this franchise; notice of such failure by the office of the City Manager, to comply with any provisions of this contract which the office of the City Manager reasonably determines can be remedied by an expenditure of the letter of credit, the City Clerk may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the City Clerk shall notify the Grantee of the amount and date thereof. If the Grantee wishes to contest withdrawal, the Grantee may petition to the Broadband Telecommunications Commission for a hearing within ten (1 O) days from date notice of withdrawal is mailed or otherwise given. Replenishment of letter of credit and construction bond: No later than thirty (30) days, after mailing to the Grantee by certified mail notification of a withdrawal pursuant to para~aphs C and D above, and after the total amount of funds in the letter of credit is $50,000, the Grantee shall replenish the letter of credit or construction bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and construction bond shall constitute a violation of this Ordinance. Sec. 12-4-16: Fees, rates and charges. Schedule filings: Subject to Federal law, Grantee shall file with the City schedules which shall describe all services offered, all rates and charges of any kind, and all terms and conditions relating thereto. No rates or charges shall be effective except as they appear on a schedule so filed. Grantee shall notify the City and subscribers in writing at least thirty (30) days prior to the implementation of any change in services offered, rates charges, or terms and conditions related thereto. Nondiscrim/natoty rates: Grantee shall establish rates that are nondiscriminatory within the same general class of subscribers which must be applied fairly and uniformly to all subscribers in the franchise area for all services. Nothing contained herein shall prohibit the Grantee from offering (i) discounts to commercial and multiple family dwelling subscribers billed on a bulk basis; (ii) promotional discounts; (i/i) reduced installation rates for subscribers who have multiple services; or (iv) discount for senior citizens and/or low 31 income residents. Grantee's charges and rates for all services shall be itemized on subscriber's monthly bills. City regulation: To the extent that federal or state law or regulation may now, or as the same may hereafter be amended to, authorize the City to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by Grantee, the City shall have the right to exercise rate regulation to the full extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the City. Rate regulation of the basic tier and charges: The City will follow FCC Rate Regulati(~ns including, but not limited to, Report and Order, In the Matter of Implementation of Sections of Cable Television Consumer Protection and Comoetition Act of 1992: Rate Regulation, MM Docket 92-266, FCC 93-177 (released May 3, 1993), or as hereafter emended by the FCC from time to time. In connection with such regulation, the City will ensure a reasonable opportunity for consideration of the views of interested parties; and the City Attorney, or designee, is authorized to execute on behalf of the City and file with the FCC such certification forms or other instruments as are now or may hereafter be required by the FCC Rate Regulations. Ability to petition: If applicable, the City shall have the right to petition the Federal Communications Commission or other appropriate agency or organization to obtain rate regulation authority or to petition the federal body to review or regulate rates in the City. Not/f/cation of charges: The Grantee may establish charges for its services not specified in subsection (a) above; however, all such charges, including but not limited to additional serv~_e, leased channel, discrete channel, and production rates shall be made public and two (2) copies of the schedule of charges, as originally and thereafter modified, shall be filed with the City Clerk thirty (30) days prior to the effective date of such changes. Deposits on advance payments to be approved: The Grantee shall receive no deposit, advance payment or penalty from any subscriber or potential subscriber other than those established in the schedule of charges previously filed with and/or approved by the City Council. Purchase of switch: In the event that the FCC does not regulate antenna switches, and/or that a switch or other appurtenant device is required to permit subscribers to receive full broadcast network service, the Grantee shall give the subscriber the option of purchasing the switch at a reasonable cost at the time of initial installation thereof, or of purchasing said switch or other appurtenant device at the then prevailing local installment plan interest rate. The Grantee hereby agrees to allow the subscriber to provide a switch or other appurtenant device at its subscriber terminal, provided that such device meets with the approval of the Grantee. Such approval shall not be withheld if it is shown that such device does not interfere with the operation of the cable television system. If the subscriber. elects not to purchase or provide said switch or other appurtenant device, the Grantee may make an additional charge for the rental of such switch or other appurtenant device providing that the additional charge is in accordance with the schedule of charges contained in the Grantee's application for a franchise hereunder or hereafter shall be filed with and approved by the City. 32 I. Subscriber refunds in addition to those authorized by the FCC: Uo If any subscriber of the Grantee of less than ten {1 O) days terminates services due to the Grantee's failure to render service to such subscriber of a type and technical quality provided for herein; 2. If service to a subscriber is terminated by the Grantee without good cause; or If the Grantee ceases to provide service for twenty-four hours or more, the cable television system authorized herein for any reason except termination or expiration of a franchise granted hereunder; The Grantee shall refund to such subscriber an amount equal to the monthly charge, installation and connection charge paid by such subscriber in accordance with the then- existing schedule of charges. Disconnect/on: Except as provided by FCC rate regulation, there shall be no charge for disconneqtion of any installation or outlet. If any subscriber fails to pay a properly due monthly subscriber fee, or any other properly due fee or charge, the Grantee may disconnect the subscriber's service outlet. Such disconnection shall not be effected until forty-five (45) days after the due date of said delinquent fee or charge, and after adequate written notice of the intent to disconnect has been delivered to the subscriber in question. Upon payment of charges due and the payment of a reconnection charge, if any, the Grantee shall promptly reinstate the subscriber's cable service after request by subscriber. Rates_subject to other regulations: The Grantee in submitting its request for approval of initiaTrates or any subsequent rates shall do so for basic service and related equipment to be performed to or for subscribers described in this ordinance. If FCC rules and regulations, or any other applicable laws or regulations, shall subsequently determine that the City of Iowa City has jurisdiction over other services or service to be offered or performed, said rates shall be subject to approval by the City at that time. Reduction of fees: If during the term of any franchise or renewal thereof granted hereunder, the Grantee receives refunds or if the cost of operation .to the Grantee is reduced as a result of an order of any regulatory body having competent jurisdiction, the Grantee shall pass on to its subscribers on a prorated basis any such savings or reduced costs pursuant to FCC regulation. M. Rate change procedures: Limitation on application for increase in rates: The Grantee shall not, unless allowed by FCC regulations, file more than one application for an increase in fees, rates or charges during any calendar year except to seek relief from the imposition of federal, state or local taxes or other legally imposed fees not contemplated in the most recent rate determination. Review of rates: The Broadband Telecommunications Commission shall review the Grantee's schedule of fees, rates or charges that are within the City's regulatory 33 jurisdiction, upon application by the Grantee as herein provided or at any time on its own motion. The Broadband Telecommunications Commission shallsubmit such schedule and any contemplated modifications thereof,'together with its recommen- dations, to the CiW Council as expressed in such a resolution. The City Council may, pursuant to FCC regulations, reduce or increase such fees, rates or charges adopted for this purpose and, unless allowed by FCC regulation, no change in the Grantee's schedule of fees, rates or charges shall be effective without prior action of the Broadband Telecommunications Commission and the approval of the Council. No such resolution shall be adopted without prior public notice and opportunity for all interested members of the public, including the Grantee, to be heard, subject to the procedures set forth in this ordinance. No change in City regulated fees, rates and charges shall take effect until thirty (30) days after the approval of the rates by the City Council. Documentation of request for increase: Anv increase requests, in addition to other factors described in this section, shall be supported by a showing of increased costs for the existing services or proposed services and shall be filed in two (2) copies with the City Clerk. If a Grantee requests a change, it shall present in detail in writing the statistical basis, in addition to other requirements as set out in this section, for the proposed fee change in accordance with FCC rules. Records to be made available: For the purposes of determining the reasonableness of Grantee fees, rates or charges, Grantee records relating the same shall be made available to the City. Sec. 12-4-17: Public, education and government connection to cable television system. The Grantee shall provide upon request within the City one connection and monthly service for "basic service" and all non-pay services to such public, parochial and nonprofit private schools, the University of Iowa, City designated public access facility, City and other government buildings and other agencies, provided that such designated locations are within two hundred (200) feet of any network cable route. Initial installation shall be without charge. Rates for monthly service to residential or living units within such entities may be negotiated with each such entity. The Grantee may charge for any excess footage on the basis of time and material for any such locations beyond the two hundred-foot limitation if such connection is designated by the City. The City reserves the right for itself and the above entities at their individual expense to extend service to as many areas within such schools, buildings and agencies as it deems desirable without payment of any additional installation fee or monthly fee to Grantee. All such extensions, however, shall be accomplished in such a way so as not to interfere with the operation of the cable television system. Institutions receiving free drops will consult with Grantee on the technical standards to be used for such extensions. The Grantee shall complv with the public, educational and government access requirements specified in the franchise. Sec. 12-4-18: Interconnection of network. Area/nterconnection: The Grantee shall be interconnected with other cornmunities and cable companies as specified in the franchise. 34 Sec. 12-4-19: Construction timetable for initial construction. Permit application: It is hereby deemed in the public interest that the system be extended as rapidly as possible to all residents within the City. Within nir~et¥ {90) days of the effective date of a franchise granted hereunder, the Grantee shall file with the appropriate authorities and utilities all initial papers and applications nece~sery to comply with the terms of this article including the application for franchise and any additions or amendments thereto and shall thereafter diligently pursue all such applications. After the Grantee has diligently pursued the acquisition of necessary pole attachment contracts, or other necessary easements, and where such necessary contracts have not been executed or easements obtained after a reasonable period of time as determined by the City, the City may, at its discretion, provide assistance to ensure the extension of the system to all residents. Commencement of construction: Within one hundred eighty (180) days of the effective date of FCC certification, the Grantee shall initiate construction and installation of the cable television system. Such construction and installation shall be pursued with reasonable diligence. Commencement of operation: Within twelve (12) months of the effective date of FCC certification, the Grantee shall "commence operation" within the meaning set forth in this ordinance. Sustained completion of construction: Within the time specified in the franchise agreement, the Grantee shall have "substantially completed" construction of the "service area" within the meaning set forth in this ordinance. Prov~ions of basic service: Within the time specified in the franchise agreement, the Grantee shall have placed in use sufficient distribution facilities so as to offer basic service to one hundred (100) per cent of the dwelling units in the service area to which access is legally and reasonably available. Delays and extension of time: The City Council may in its discretion extend the time for the Grantee, acting in good faith, to perform any act required hereunder. The time for performance shall be extended or excused, as the case may be, for any period during which the Grantee demonstrates to the satisfaction of the City Council that the Grantee is being subjected to delay or interruption due to any of the following circumstances if reasonablv bevond its control: 1. necessary utility rearrangements, pole change-outs or obtaining of easement rights, 2. governmental or regulatory restrictions, 3. labor strikes, 4. lockouts, 35 6. national emergencies, 7. fire, 8. acts of God. Go When certain operations are to commence: If FCC certification is not required for a franchise granted under this article, all time periods specified in subsections (A), (C), {D) and (E) of this section shall commence with the effective date of a franchise granted hereunder. Sec. 12-4-20: Construction timetable for rebuild construction. Compliance with construction and technical standards: Grantee shall construct, rebuild, install, operate and maintain its system in a manner consistent with all laws, ordinances, construction .standards or guidelines, governmental requirements, FCC technical standards, and detailed technical standards provided for in the franchise. B. Construction timetable: The Grantee shaF ;onstruct and complete the system rebuild in accordance with the timetable set forth in the franchise. Delays and extension of time: The City Council may in its discretion extend the time for the Grantee, acting in good faith, to perform any act required hereunder. The time for performance shall be extended or excused, as the case may be, for any period during which the Grantee demonstrates to the satisfaction of the City Council that the Grantee is being subjected to delay or interruption due to any of the following circumstances if reasonably beyond its control: 1. necessary utiliW rearrangements, pole change-outs or obtainment of easement rights, 2. governmental or regulatory restrictions, 3. labor strikes, 4. lockouts, 6. national emergencies, 7. fire, 8. acts of God. Sec. 12-4-21: Network description. A. System bandwidth capability: The Grantee shall install a cable network according to the following specifications: The initial system shall be designed to a capacity equivalent to 36 Do a minimum of 550 MHz and as sp.ecified in the franchise. The Grantee at its option may provide for this increased capaciw at the time of initial construction. As total hi-directional capacity is a priority goal of the City, applicants for a franchise hereunder may propose greater channel capacities and more sophisticated two-way capabilities than the minimums set forth herein. However, such proposal shall describe the particular community needs to be served thereby and shall detail, as part of the financial projection and support required in this ordinance the associated costs and revenues. System configuration: The Grantee shall design and construct the network using fiber to the feeder architecture in such a way as to provide maximum flexibility and to provide service to the fewest number of homes per fiber node as economically feasible. Protection of subscriber privacy mandatory: Grantee shall at all times protect the privacy of subscribers, as provided in this ordinance and other applicable federal, state, and local laws. Notice of privacy provisions: At the time of entering into an agreement to provide any cable service or other service to a subscriber, and at least once a year thereafter, Grantee shall provide notice consistent with and in accordance with federal law in the form of a separate written statement to each subscriber which clearly and conspicuously informs the subscriber of: 1. The privacy rights of the subscriber and the limitations placed upon Grantee with regard this ordinance. hereof and all other applicable federal, state, and local subscriber privacy provisions; 2. The nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of such information; The nature, frequency, and purpose of any disclosure which may be made of such information, including an identification of the types of persons to whom the disclosure may be made; The period during which such information might be maintained by the cable operator; o The times and place at which the subscriber mav have access to such information in accordance with this ordinance and other applicable federal, state, and local law; A request for the subscriber signature allows for use of personally identifiable information. Collection of personally identifiable information prohibited: Grantee shall not use or permit the use of the cable system to collect personally identifiable information concerning any subscriber, except as necessary to render a cable service or other service provided by the cable operator to the subscriber. Grantee shall not install or permit the installation of any special terminal equipment in any subscribeds premises for the 37 two-way transmission of any aural, visual, or digital signals without the prior written consent of the subscriber. Grantee shall not tabulate, nor permit others to tabulate, any subscriber use of the cable system which would reveal the opinions or commercial product preferences of individual subscribers, whether residential or business, or of anv occupant or user of the subscriber's premises without written authorization from the subscriber for his or her participation in a shop-at-home or similar service. When providing such service, the Grantee may tabulate only those responses essential to the functioning of that shopping or other service, and may not use any such tabulation of individual preferences for any other purposes. Tabulations of aggregate opinion or preference are permitted, provided the aggregations are sufficiently large to assure individual privacy. Disclosure of subscriber information prohibited: Grantee shall not without the specific written authorization of the individual subscribers involved, sell or otherwise make available to any party any list of the names and addresses of individual subscribers, any list which identifies the viewing habits of individual subscribers, or any-personal data, social security number, income and other data the Grantee may have on file about individual subscribers, except as necessary to render or conduct a legitimate business activity related to a cable service or other service provided by the cable operator to the subscriber, provided, however, that such disclosure shall not reveal directly or indirectly the extent of viewing or other use by the subscriber of a cable service or other service provided bv the cable operator, or the nature of any transaction ~nade by the subscriber over the cable system. Notices of monitoring: Grantee shall report to the affected parties, the City and other appropriate authorities, any instances of monitoring or tapping of the system, or any part there_of, of which it has knowledge, which is not authorized under this section whether or not such activity has been authorized by Grantee. Grantee shall not record or retain any information transmitted between a subscriber or user and any third party, except as required for lawful business purposes. Grantee shall destrov all subscriber or user information of a personally-identifiable nature after a reasonable period of time, unless retention of such information is authorized by the affected subscriber or user. Polling by cable: No poll or other upstream response from a subscriber shall be conducted or obtained except as part of a program that contains an explicit disclosure of the nature, purpose and prospective use of the results of the poll or upstream response and where the program has an informational, entertainment or educational function which is self- evident. Grantee or its agents shall release the results of upstream responses only in the aggregate and without individual references. Monitoring devices: Grantee shall provide written notice to each subscriber when equipment is to be installed on the system which would permit the recording or monitoring of individual viewing habits of a subscriber or household; such equipment shall be installed only after prior written permission has been granted by the subscriber. Such permission may be valid for one year only and may be renewed by permissioh of the subscriber. In no event shall such permission be obtained as a condition of service or continuation thereof. Grantee shall give each subscriber annual written notice of any such monitoring and of the subscriber's right to terminate the monitoring in accordance with the terms and conditions of the subscriber's contract with Grantee. 38 Personally identifiable information: Grantee shall not predicate regular subscriber service on the subscriber's grant or denial of permission to collect, maintain or disclose I~ersonally identifiable information. A subscriber may at any time revoke any permission previously given by delivering to the Grantee a written statement of that intent· Correct/on policw Each subscriber shall be provided access to all personally identifiable information regarding such subscriber that Grantee collects or maintains or allows to be collected or maintained, and' such subscriber shall be provided the opportunity to correct any error in such information· Viewing habits: Any information concerning individual subscriber viewing habits or responses, except for information for billing purposes, shall be destroyed within sixty (60) days of collection. Information for billing purposes shall be kept for two (2) years and then destroyed unless otherwise required to be kept by law. System performance: This section is not intended to prol~i6it the use or transmissior~ of signals useful only for the control or measurement of system performance. Subscriber and user contracts: This section of this ordinance shall be enforceable directly by every aggrieved subscriber or user and by every aggrieved person seeking to become a subscriber or user. Grantee shall include the following provision in every contract or agreement between Grantee and any subscribers or user: "The subscriber/user, as part of this contract, has certain rights of privacy prohibiting the unauthorized monitoring of service and publication of personal information under the control of (Name of Grantee), including without .-limitation, information regarding program selections or service uses. (Name of -Grantee) shall make available upon the request of the subscriber/user further description of said rights as established in its ordinance and franchise with the City of iowa City." Grantee shall not allege or contend that any actual or potential subscriber or user may not enforce this ordinance bv reason of lack of privacy. Sec. 12-4-22: Network technical requirements. Genera/requirements: Each cable television system must be so designed, installed and operated as to meet FCC technical standards and standards set forth in the franchise. Sec. 12-4-23: Performance measurements. A. General requirements: Test procedures utilized shall be in accordance with those promulgated by the FCC and the National Cable Television Association. B. Additional tests and inspect/on: The City reserves the right to: Require additional tests for cause at specific terminal locations at expense of the Grantee, and 39 Conduct its own inspections of the cable television system on its own motion at any time during normal business hours with reasonable advance notice. Report of measurements combined: To the extent that the report of measurements as required above may be combined with any reports of measurements required by the FCC or other regulatory agencies, the City shall accept such combined reports, provided that all standards and measurements herein or hereafter established by the City are satisfied. Sec. 12-4-24: Construction standards. Antennas and towers: Antenna supporting structures (towers) shall be designated for the proper loading zone as specified in the Electronics Industry Association's R.S.-22-C Specifications. Compl/ance with aviation requirements: Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aeronautical Agency, the state aeronautics board governing the erection and operation of supporting structures or television towers, and all other applicable local or state codes and regulations. C. City approvalof construction plans: Prior to the erection of any towers, poles or conduits or the upgrade or rebuild of the cable communications system under this ordinance, the Grantee shall first submit to the City and other designated parties for review, such information as specified in the franchise. No erection or installation of any tower, pole, underground conduit, or fixture or any rebuilds or upgrading of the cable communications system shall be commenced by any person until approval, therefore, has been received from the City. D. Contractor qualifications: Any contractor proposed for work of construction, installation, operation, maintenance, and repair of system equipment must be properly licensed under laws of the State, and all local ordinances. In addition, the Grantee shall submit to the City, every two years, a plan to hire persons locally for the construction, installation, operation, maintenance and repair of the system equipment. M/n/mum interference: The Grantee's system and associated equipment erected by the Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys, and other public ways and places, apd to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places. No pole or other fixtures placed in any public ways bV the Grantee shall be placed in such a manner as to interfere with normal travel on such public way. Fo Cit~/ maps: 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. Go Qual/tv of construction: Construction, installation, operation, and maintenance of the cable communications system shall be performed in an orderly and workmanlike manner, in accordance with then current technological standards. All cables and wires shall be 40 installed, where possible, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for aesthetic and engineering considerations. Construction standards: The construction, installation, operation, maintenance, and/or removal of the Cable Communications System shall meet all of the following safety, construction, and technical specifications and codes and standards: Occupational Safety and Health Administration Regulations (OSHA) National Electrical Code National Electrical Safety Code (NESC) National Cable Television Standard Code AT&T Manual of Construction Procedures (Blue Book) Bell Telephone Systems Code of Pole Line Construction All Federal, State and Municipal Construction Requirements, including FCC Rules and Regulations Utility Construction Requirements All Building and Zoning Codes, and All Land Use Restrictions, as the same exist or may be amended hereafter. Sec. 12-4-25: Erection, removal and common use of poles. Approval for poles: No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wire-holding structure of the Grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Requirements to use existing poles: Where poles already exist for use in serving the City and are available for use by the Grantee, but Grantee does not make arrangements for such use, the City may require the Grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable. Sec. 12-4-26: Construction reporting requirements. Progress reports: Within thirty (30) days of the granting of a franchise pursuant to this ordinance, the Grantee shall provide the City with a written progress report detailing work completed to date and a schedule for completion of construction. Such report shall include a description of the progress in applying for any necessary agreements, licenses, or certifications and any other information the Cable Television Administrator may deem necessary. The content and format of the report will be determined by the Cable Television Administrator and may be modified at the Administrator's discretion. Timeframe for reports: Such written progress reports shall be submitted to the City on a bimonthly basis throughout the entire construction or rebuild process. The Cable Television Administrator may require more frequent reporting if the Administrator determines it iS necessary to better monitor the Grantee's progress. 41 Go Subscriber information: Prior to the commencement of any major system construction, the Grantee shall produce an informational document to be distributed to all residents of the area to be under construction, which shall describe the activity that will be taking place. The informational document shall be reviewed by the Cable Television Administra- tor prior to its distribution. Sec. 12-4-27: Channels to be provided. I, eased access channel.' The Grantee shall maintain at least one specifically designated channel for leased access uses. In addition, other portions of its nonbroadcast bandwidth, including unused portions of the specifically designated channels, shall be available for leased uses. On at least one of the leased channels, priority shall be given to part-time users, Television broadcast signal carriage: The Grantee shall carry those television broadcast signals which are in accordance with Part 76, Section 76.63 of the FCC Rules and Regulations as such rules are amended from time to time. The provision of additional television broadcast signals as provided for in Part 76, Section 76.63(a) shall also be required as amended from time to time. Basic service: Channels to be included on the first tier of service not requiring a converter or other appurtenance shall include: all television signals described in subsections A., B. and D. of this section. As the maximized use of the total channel capacity is of great interest to the City, applicants for a franchise hereunder may submit proposals to utilize channels beyond the basic service. Such a proposal may include the use of convertors at no additional charge to subscribers. Acc~'ss channels: Grantee shall provide the public, educational and governmental access channels as specified in the franchise. The Broadband Telecommunications Commission shall, in cooperation with the entities operating access channels, develop rules for such channels. Such rules shall be placed on file with the City Clerk. Sec, 12-4-28: Conditions of street occupancy: ~4pproval ofproposed construct/on: The Grantee shall first obtain the approval of the City prior to commencing construction on the streets, alleys, public grounds or places of the City as specified in the franchise. B. Permits: A Grantee shall obtain construction permits in conformance with all City rules and regulations. Go Changes required by public improvements: The Grantee shall, at its expense. protect, support, temporarily disconnect, or relocate in other public place any property of the Grantee when required by the City by reason of traffic conditions, public safety, street vacation, street construction, change or establishment of street grade, installation of sewers, drains, water pipes, City-owned power or signal lines, and tracts or any other type of structure or improvement by public agencies. 42 Use of existing poles or conduits: Nothing in this article or any franchise granted hereunder shall authorize the Grantee to erect and maintain in the City new poles where existing poles are servicing the area. The Grantee shall require permission from the City before erecting any new poles, underground conduit or appurtenances where none exist at the time the Grantee seeks to install its network. Underground installation: All installations shall be underground in those areas of the City where public utilities providing either telephone or electric service are underground at the time of installation. In areas where either telephone or electric utility facilities are above ground at the time of installation, Grantee may install its service above ground, provided that at such time as those facilities are required to be placed underground by the City or are placed underground, the Grantee shall likewise place its services underground without additional cost to the City or to the individual subscribers so served within the City. Where not otherwise required to be placed underground by this ordinance or the franchise, the Grantee's system shall be located underground at the request of the adjacent property owner, provided that the excess cost over the aerial location shall be borne by the property owner making the request. All cable passing under the roadway shall be installed in conduit. Pedestals: When housing mini-hubs, switching or other equipment are to be utilized on the public right of way, such equipment must be completely buried beneath streets or sidewalks. Any pedestals located in the public right of way shall comply with city ordinances or regulations. All such buried equipment shall be shown in plan and cross-section on the design plans for permits. Facilities not to be hazardous or interfere: All wires, conduits, cable and other property and facilities of the Grantee shall be so located, constructed, installed and maintained as not t~ endanger or unnecessarily interfere with the usual and customary trade, traffic and travel upon the streets and public places of the City. The Grantee shall keep and maintain all its property in good condition, order and repair. The Citv reserves the right hereunder to inspect and examine at any reasonable time and upon reasonable notice the property owned or used, in part or in whole, by the Grantee. The Grantee shall keep accurate maps and records of all its facilities and furnish copies of such maps and records as requested by the City. A Grantee shall not place poles or other equipment where they will interfere with the rights or reasonable convenience of adjoining property owners or with any gas, electric or telephone fixtures or with any water hydrants or mains. All poles or other fixtures placed in a street shall be placed in the right-of-way between the roadway and the property, as specified by the City. Method of installation: All wires, cables, amplifiers, and other property shall be constructed and installed in an orderly manner consistent with the trade. All cables and wires shall be installed parallel with existing telephone and electric wires whenever possible. Multiple cable configurations shall be arranged in a parallel and bundled, with due respect for engineering and safety considerations. All installations shall be underground in those areas of the City where public utilities providing telephone and electric service are underground at the time of installation. All underground installations of wires and cable shall be buried at least twelve (12) inches below ground. 43 Protection of facilities: Nothing contained in this section shall relieve any person, company or corporation from liability arising out of the failure to exercise reasonable care to avoid injuring the Grantee's facilities while performing any work connected with grading, regrading or changing the line of any street or public place or with the construction or reconstruction. of any sewer or water system. Any person, company or corporation intending to perform any of the above-described work in an area where Grantee's facilities are located shall notify Grantee at least twenty-four (24) hours prior to performing said work. Requests for removal or change: The Grantee shall, on the request of any person holding a building moving permit, temporarily raise or lower its wires to permit the moving of said building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than ten (10) working days' notice of any move contemplated to arrange for temporary wire changes. Authority to trim trees: The Grantee may trim trees upon and overhanging streets, alleys, sidewalks and other public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Grantee. No trimming shall be done except under the supervision and direction of the City Forester, upon the explicit prior written notification and approval of the City Forester and at the expense of the Grantee. The Grantee may contract for such services; however, any firm or individual so retained shall receive City Forester approval prior to commencing such activity. Restoration or reimbursement: In the event of disturbance of any street or private property by the Grantee, it shall, at its own expense and in a manner approved by the City and the owner, replace and restore such street or private property in as good a con~tion as before the work causing such disturbance was done. In the event the Grantee fails to perform such replacement or restoration, the City or the owner shall have the right to do so as the sole expense of the Grantee. Pavment to the City or owner for such replacement or restoration shall be immediate, upon demand, by the Grantee. All requests for replacement or restoring of such streets or private property as may have been disturbed must be in writing to the Grantee. Office and records in City: The Grantee shall at all times make and keep at an office maintained by the Grantee in the City full and complete plans and records showing the exact location of all cable television system equipment installed or in use in the streets or other public places of the City. The Grantee shall furnish the City complete maps upon request, compatible with the City's geographic information system, showing all of the cable television system equipment installed and in place in streets and other public places of the City. Such maps shall be updated annually. Emergency removalof plant: If, at any time, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances thereto of the Grantee, such cutting or moving may be done and any repairs rendered necessary thereby shall be made by the Grantee, at its sole expense provided that such repairs are not necessitated by negligent act of the City, in which case, cost for repairs shall be borne by the City. Alternate routing of plant: In the event continued use of a street is denied to the Grantee by the City for any reason, the Grantee will make every reasonable effort to provide service over alternate routes. Sec. 12-4-29: Unauthorized connections or modifications. Unauthorized connections prohibited: it shall be unlawful for any firm, person, group, company, corporation or governmental body or agency, without the expressed consent of the Grantee, to make any connection, extension or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of a franchised cable television system for any purpose whatsoever, except as provided in this ordinance. Removal or destruction prohibited: It shall be unlawful for any firm, person, group, company, corporation or government body or agency to willfully interfere, tamper, remove, obstruct or damage any part, segment or content of a franchised cable television system for any purpose whatsoever. Sec. 12-4-30: Preferential or discriminatory practices prohibited. Prohibited employment practices: The Grantee shall not commit any of the following employment practices and agrees to prohibit the following practices in any contracts or subcontract entered into or effectuate the operation of this franchise. To discharge from employment or refuse to hire any individual because of their race, color, religion, creed, sex, national origin, age, disability, marital status or sexual _orientation. 2. To discriminate against any individual in term, conditions or privileges of employ- ment because of their race, color, religion, creed, sex, national origin, age, disability, marital status or sexual orientation. The Grantee shall be an Equal Opportunity/Affirmative Action Employer adhering to all Federal, State or municipal laws and regulations. Pursuant to 47 CFR Sec. 76.311 and other applicable regulations of the FCC, Grantee shall file an Equal Employment Opportunity/Affirmative Action Program with the FCC and otherwise comply with all FCC regulations with respect to Equal Employment/Affirmative Action Opportunities. Employment policy: Grantee shall take affirmative action to employ, during the construction, operation and maintenance of the cable communications system minorities and females as set forth in the franchise. Upon request bv the City, Grantee shall submit to the City annual reports indicating such compliance. Procurement: For all services, materials or equipment purchased for the construction, operations or maintenance of the cable communications system, Grantee shall wherever possible, purchase from competitively priced and otherwise qualified minority-owned, or female owned businesses located in the City of Iowa City, as set forth in the franchise. 45 Localemploymentandprocurementpractices: Whenever possible, all services, personnel, hardware and supplies for the construction, maintenance and operation of the system shall be procured locally. Services to be equally available: The Grantee shall not refuse cable television services to any person or organization who requests such service for lawful purpose, nor shall a Grantee refuse any person or organization the right to cablecast pursuant to provisions of this article. The Grantee shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any unreasonable preference or advantage, not subject any person to any prejudice or disadvantage. The Grantee shall take affirmative steps to disseminate the information concerning the availability of its services to all minority and other under represented groups. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscription to the system or other legitimate uses thereof, nor shall it be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classifications shall be entitled, provided such schedules have been filed with and approved by the City as provided in this ordinance. Fairness of accessibility: The entire system of the Grantee shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to all citizens, businesses, public agencies or other entities having a legitimate use for the system. No one shall be arbitrarily excludecr from its use. Allocation of use of said facilities shall be made according to the rules or decisions of regulatory agencies affecting the same, and where such rules or decisions are not effective to resolve a dispute between conflicting users or potential users, the matter shall be submitted for resolution by the Broadband Telecommunications Commission. Sec. 12-4-31: Installations, connections, and other services. Standard installations: Standard installation shall consist of a service not exceeding one hundred fifty (150) feet from a single point or pedestal attachment to the customer's residence, Service in excess of 150 feet and concealed wiring shall be charged at such cost as exceeds normal installation costs, The desire of the Subscriber as to the point of entry into the residence or commercial establishment and location of pedestal shall be observed whenever possible, 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 within no more than ten (10) days after the damage is incurred and shall be completed as soon as possible thereafter. B. Deposits: Any deposit required by Grantee shall bear interest at the current lending rate. Lockout devices: The Grantee shall provide to the potential subscriber, as part of its promotional literature, information concerning the availability of a lockout device for use by a subscriber. The lockout device described herein shall be made available to all subscribers requesting it beginning on the first day that any cable service is provided. 46 D. Reconnection: Grantee shall restore service to customers wishing restoration of service provided customer shall first satisfy any previous obligations owed. Free disconnect/on: Subscribers shall have the right to have cable service disconnected without charge. A refund of unused service charges shall be paid to the customer within sixty (60) days from the date of termination of service. F. Downgrade and upgrade fees: Any downgrade or upgrade fees shall conform with FCC rules. Sec. 12-4-32: Service calls and complaint procedures. Business office staffing: Grantee shall provide all subscribers or users with at least thirty {30) days prior written notice of a change in business office hours. The business office shall maintain a staff adequate to process complaints, requests for installation, service or repairs, and other business in a timely and efficient manner. Grantee shall add additional telephone lines and service representatives when existing lines are substantially utilized or when a pattern of subscriber complaints reflect a need for additional service employees. Additional offices and payment stations provided by the Grantee shall be included in the franchise. B. Telephone service: The Grantee shall have a listed, locally-staffed telbphone number for service calls available twenty-four (24) hours a day, seven (7) days a week. Said number shall be made available to subscribers and the general public. The Grantee shall provide an unlisted locally-staffed telephone number to the City and utility companies to enable the City or utility companies to reach the Grantee in case of emergency on a 24-hour, 7-days-a-week basis. Grantee rules: The Grantee shall prepare and file with the City copies of all of its rules and regulations in connection with the handling of inquiries, requests and complaints. The Grantee shall, by appropriate means, such as a card or brochure, furnish information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed, and furnish information concerning the City office responsible for the administration of the franchise, including, but not limited to, the address and telephone number of said office. Equ/pment service: The Grantee shall service or replace without charge all equipment provided by it to the subscriber, provided, however, that the Grantee may charge a subscriber for service to or replacement of any equipment damaged due to negligence of such subscriber. Subscriber solicitation: Grantee shall provide the City with a list of names and addresses of all representatives who will be soliciting within the City and the area in and the dates within such solicitations shall take place. Each such representative and all other employees entering upon private property shall be required to wear an employee identification card issued by Grantee and bearing a picture of said representative. Grantee shall notify the general public of its solicitation in a manner calculated to reach residents in the areas to be solicited in advance of such solicitation, 47 Sales information: Grantee shall provide to all subscribers annually and all prospective subscribers or users with complete written information concerning all services and rates provided by Grantee upon solicitation of service and prior to consummation of any agreement for installation of service. Such sales material shall clearly and conspicuously disclose the price and other information concerning Grantee's least costly service. Such information shall be written in plain English and shall include but shall not be limited to the following: all services, tiers, and rates; deposits if applicable; installation costs; additional television set charges; service upgrade or downgrade charges; lockout devices; and information concerning the utilization of video cassette recorders (VCRs) with cable service(s) and the cost for hooking up such VCRs so that they function as manufactured. Billing practices information: Grantee shall inform all subscribers annually and all prospective subscribers or users of complete information respecting billing and collection procedures, procedures for ordering changes in or termination of services, and refund policies, upon solicitation of service and prior to the consummation of any agreement for installation of service. Such information shall be written in a plain English. Notice of complaint procedures: Grantee shall periodically, and at various times of the day, present its business office address and publicly listed local telephone number by means of alpha-numeric display on a local origination channel. Investigation and remedialaction: For recurrent complaints regarding service deficiencies (other than total or partial loss of service, such as "ghosting," weak audio signal, distortion, and the like), the Cable Television Administrator may require the Grantee to investigate and report to the causes and cures thereof, and the Cable Television Administrator may also conduct an investigation. Thereafter, the Cable Television AdmLnistrator may order specified remedial action to be taken within reasonably feasible time'Timits. If such action is not taken, or is ineffective, or if within thirty (30) days the Grantee files with the City a notice of objection to the order, the City may conduct a hearing and may, if the evidence warrants a finding of fault on the part of the Grantee, take appropriate action pursuant to the terms of this ordinance. Sec. 12-4-33: Transfer. Transfer of franchise: A franchise shall not be assigned or transferred, either in whole or in part, or leased, sublet, or mortgaged in any manner, nor shall title to the cable system, legal or equitable, or any right, interest or property therein, pass to or vest in any person without the prior written consent of the Citv, such consent not to be unreasonably withheld. Except that no consent shall be required for any sale, transfer, or assignment of ownership to an affiliate under common control with Grantee, prowdad that prior to such transfer, Grantee provides to the City verifiable information to establish that such transferee has the financial, legal and technical ability to fully perform all obligations of the franchise. No such consent shall be required, however, for a transfer by mortgage to a federally licensed lending institution in order to secure indebtedness. Within thirty (30) days of receiving the request for transfer, the franchising authority shall, in accordance with FCC rules and regulations, notify the Grantee in writing of the information it requires to determine the legal, financial and technical qualifications of the transferee. If the franchising authority has not taken action on the Grantee's request for 48 transfer within one hundred twenty (120) days after receiving such requested information, consent by the franchising authority shall be deemed given. Transfer of ownership: The Grantee shall not sell, transfer or dispose of thirty percent (30%) or greater ownership interest in the Grantee or more at one time of the ownership or controlling interest in the system, or thirty percent (30%) cumulatively over the term of the franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concer~ without the consent of City. Every sale, transfer, or disposition of thirty percent (30%) or greater ownership interest as specified above in the Grantee shall make the franchise subject to cancellation unless and until the City shall have consented thereto. C. Transfer of control: The Grantee shall not change control of the Grantee in whatever manner exercised without the prior written consent of the City. City approval.' Every change, transfer, or aequisition of control of the Grantee shall make the franchise subject to cancellation unless and until the Citv shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective transferee or controlling party, and the Grantee shall provide the City with all required information. The Citv reserves the right to impose certain conditions on the transferee as a condition of the franchise to ensure that the transferee is able to meet existing ordinance and franchise requirements. Assumption of control: Any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the francRise shall have the right to notify the City that it will take control and operate the cable television system. If the financial institution takes possession of the cable communications system the City shall take no action to effect a termination of the franchise without first giving to the financial institution written notice thereof and a period of six (6) months thereafter (unless otherwise provided hereinbelow) (i) to allow the financial institution or its agent(s) to continue operating as the Grantee under the franchise and; (ii) to request the City, and for the City to determine whether, to consent to the assignment of the Grantee's rights, title, interest and obligations under the franchise to a qualified operator. The City acknowledges that in order for the financial institution to realize upon the collateral accorded to it by the loan documents, the financial institution must be entitled to a reasonable period of time after taking possession of the franchise under the loan document to obtain the City's consent to an assignment of the franchise to a qualified operator. The City agrees that such reasonable period of time is six (6) months after the financial institution takes possession of the cable communication system and, further, agrees that the City shall use its best efforts to decide upon the assignment of the franchise to the new operator proposed by the financial institution within such period of time. The financial institution shall be entitled to such possession and other rights granted under this paragraph until such time that the City determines whether to consent to such assignment (the "extended t~me"). If the City finds that such transfer, after considering the legal, financial, character, technical and other public interest qualifications of the applicant are satisfactory, the City will consent to the transfer and assign the rights and obligations of such franchise as in the public interest. 49 During the six (6) month period or extended time, the financial institution shall enjoy all the rights, benefits and privileges of the Grantee under the franchise, and t.he City shall not disturb such possession by the financial institution, provided the financial institution complies in all respects with the terms and provisions of the franchise and this ordinance. The various rights granted to the-financial institution under this paragraph are contingent upon the financial institution's continuous compliance with the terms and provisions of this ordinance and the franchise during the entire aforementioned six (6) month period or extended time, if applicable. For example, should an agent of the financial institution take possession of the cable communication system pursuant to rights granted to the financial institution under this paragraph, and such agent fails to comply with the level of service requirements set forth in this ordinance or the franchise, the rights granted to the financial institution under this ordinance and the franchise shall automatically terminate. No waiver of City property rights: The consent or approval of the City or any other public entity to any transfer of the Grantee shall not constitute a waiver or release of the rights of the City in and to the public property or public rights of way, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of this ordinance and the franchise. Transfer time periods: In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the franchise prior to construction or the completion of the rebuild of the system. Subject to the conditions of Section 617 of the Cable Act, the City shall not approve a transfer if the Grantee has not held the franchise for a period of three years. Right to review purchase price: Rased upon public information, the City reserves the right to review the purchase price of any transfer or assignment of the cable system. Signatory requirement: Anv approval by the City of transfer of ownership or control shall be contingent upon the prospective party becoming a signatory to the franchise agreement. Sec. 12-4-34: Publication costs. The Grantee shall assume the cost of publication of the franchise ordinance as such publication is required by law. A bill for the publication costs shall be presented to the Grantee by the City upon the Grantee's filing of acceptance and shall be paid at that time. Sec. 12-4-35: Ordinances repealed. All ordinances are parts of ordinances in conflict with the provisions of this article are hereby repealed. Sec. 12-4-36: Separability. If any section, subsection, sentence, clause, phrase or word of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such section, subsection, sentence, clause, phrase or word shall be deemed a separate, distinct and 50 independent provision and such holding shell not affect the validity of the remaining portions hereof. Sec. 12-4-37: Time is of the essence to this ordinance. Whenever the ordinance shall set forth any time for any act to be performed by or on behalf of the Grantee, such time shall be deemed by the essence any failure of the Grantee to perform within the time allotted shall always be sufficient ground for the City to invoke an appropriate penalty including possible revocation of the franchise. Sec. 12-4-38: No waiver of rights. No course of dealing between the Grantee and the City nor any delay on the part of the City in exercising any rights hereunder shall operate as a waiver of any such rights of the City or acquiescence in the actions of the Grantee in contravention of rights except to the extent expressiv waived by the City or expressly provided for in the franchise. 51 DIVISION 2. RATE REG~JLATIONS Sec. 12-4-39: Rate regulation proceedings. Any rate regulation proceedings conducted under this division shall provide a reasonable opportunity for consideration of the views of any interested party, including but not limited to the City, by its designee, the cable operator, subscribers, and residents of the franchise area. In addition to all other provisions required by the laws of the state and the City for such proceedings, and in order to provide for such opportunity for consideration of the views of any interested party, the City shall take the following actions: The City shall publish in a local newspaper of general circulation, post on a bulletin board or other prominent place easily accessible to the public and clearly designated for that purpose in the Iowa City Civic Center, and mail by certified mail to the cable operator a public notice of the intent to conduct a public proceeding on basic service tier rates and/or charges for equipment to receive such basic service tier, as defined by the FCC. Bo The public notice shall contain a statement that cable television rates are subject to municipal review and shall explain the nature of the rate review in question; that any interested party has a right to participate in the proceeding; that public views may be submitted in the proceedihg, explaining how such public views are to be submitted and the deadline for submitting such views; that a decision concerning the reasonableness of the cable television rates in question will be governed by the rules and regulations of the Federal Communications Commission (FCC); and that the decision of the City is subject to review by the FCC. :The City shall conduct a public proceeding to determine whether the rates or proposed rate increase are reasonable. The City may delegate the responsibility to conduct the proceeding to the Broadband Telecommunications Commission or to any duly qualified and eligible individual or entity. If the City or its designee cannot determine the reasonableness of a proposed rate increase within the time period permitted by the FCC rules and regulations, it may roll the effective date of the proposed rates for an additional period of time as permitted by the FCC rules and regulations, and may issue any other necessary or appropriate order and give public notice accordingly. In the course of the rate regulation proceeding, the City may request additional information from the cable operator that is reasonably necessary to determine the reasonableness of the basic service tier rates and equipment charges. Any such additional information submitted to the City shall be verified by an appropriate official of the cable television system supervising the preparation of the response on behalf of the entity, and submitted by way of affidavit or under penalty of perjury, stating that the response is true and accurate to the best of that person's knowledge, information and belief formed after reasonable inquiry. The City may request proprietary information, provided that the City shall consider a timely request from the cable operator that said proprietary information shall not be made available for public information, consistent with the procedures set forth m section 0.459 of the FCC rules and regulations. 52 Furthermore, said proprietary' information may be used only for the purpose of determining the reasonableness of the rates and charges or the appropriate rate level submitted by the cable operator. The City may exercise all powers under the laws of evidence applicable to administrative proceedings under the laws of the state to discover any information relevant to the rate regulation proceeding, including, but not limited to, subpoena, interrogatories, production of documents and depositions. Upon termination of the rate regulation proceeding, the City shall adopt and release a written decision whether the rates or proposed rate increase are reasonable or unreasonable, and, if unreasonable, its remedy, including prospective rate reduction, rate prescription and refunds. The City may not impose any fines, penalties, forfeitures or other sanctions, other than permitted by the FCC rules and regulations, for charging an unreasonable rate or proposing an unieasonable rate increase. However, the CiW may impose fines or monetary forfeitures on a cable operator that does not comply with a rate decision or refund order of the City, directed specifically at the cable operator, pursuant to the laws of the state and the City Code. Consistent with the FCC rules and regulations, the City's decision may be reviewed only by the FCC. The City shall be authorized, at any time, to gather information as necessary to exercise its jurisdiction as authorized by the laws of the state, the Cable Act, and the FCC rules and regulations. Any information submitted.to the City shall be verified by an appropriate official of the cable television system supervising the --preparation of the response on behalf of the entity, and submitted by way of affidavit or under penalty of perjury, stating that the response is true and accurate to the best of that person's knowledge, information and belief formed after reasonable inquiry. Sec. 12-z1~40: Certification. The City shall file with the FCC the required certification form (FCC Form 328) on September 1, 1993, or as soon thereafter as appropriate. Thirty (30) days later, or as soon thereafter as appropriate, the City shall notify the cable operator that the City has been certified by the FCC and that it has adopted all necessary regulations so as to begin regulating basic service tier cable television rates and equipment charges. Sec.-12-4-41: Notification of changes. With regard to the cable programming service tier, as defined by the Cable Act and the FCC rules and regulations, and over which the City is not empowered to exercise rate regulation, the cable operator shall give notice to the City of any change in rates for the cable programming service tier or tiers, any change in the charge for equipment required to receive the tier or tiers, and any changes in the nature of the services provided, including the program services included in the tier or tiers. Said notice shall be provided to the City at least thirty (30) business days prior to any change becoming effective. 53 Sec. 12-4-42: Cable official. The City may delegate its power to enforce this division to the Broadband Telecommuni- cations Commission or to employees or officers of the City, to be known as the cable official. The cable official shall have authority to: Administer oaths and affirmations; B.Issue subpoenas; C,Examine witnesses; D.Rule upon questions of evidence; E.Take or cause depositions to be taken; F.Conduct proceedings in accordance with this division; G. Hold conferences for the settlement or simplification of the issues by consent of the parties; and H. Take actions and make decisions or recommend decisions in conformity with this division, NOTICE OF PUBLIC HEARING Notice is hereby given that the City Council of Iowa City will hold a public hearing on the 24th day of October, 1995, at 7:30 p.m. in the Council Chambers of the City of Iowa City, 410 E. Washington Street, Iowa City, Iowa, regard- ing the intent to convey ~vo single-family dwellings constructed approximately 1963, by sealed bidding procedure, with bids to be received by the City's purchasing agent no later than 9:00 a.m. on Tuesday, October 24, 1995. Notice is further given that the City intends to have both houses removed from the City water supply and treatment facility site no later than May 1, 1996, and that successful bidder shall pay all removal costs. Persons interested in expressing their views concerning this matter, either verbally or in writing, will be given the opportunity to be heard at the above-mentioned time and place. MARIAN K. KARR, CITY CLERK NOTICE OF PUBLIC DISCUSSION Notice is hereby given that the City Council of Iowa City will hold a meeting for public discussion on the 24th day of October, 1995, in the Civic Center Council Chambers, 410 E. Washington Street, at 7:30 p.m. in consider- ation of the following item: 1. Resolution setting the design parameters of the Melrose Avenue street and bridge recon- struction between Byington Road and the corporate limits of University Heights. Persons interested in expressing their views concerning said item, either verbally or in writing, will be given the opportunity to be heard at the above-mentioned time and place. Prior to the hearing, the following documents are available for review at the Iowa City Public Library, the City Clerk's Office, or the Depart- ment of Planning and Community Development: the Melrose Avenue Street and Bridge Recon- struction Environmental Assessment, and the Draft Environmental Update and Request for a Finding of No Significant Impact {FONSI) for Melrose Avenue from the City Limits of Iowa City and University Heights to Byington Road. MARIAN K. KARR, CITY CLERK City of Iowa City MEMORANDUM Date: October 19, 1995 To: City Council From: Jeff Davidson, Assistant Director of Planning & Community Development Re: 7..11 Selection of Preferred Design Alternative for Melrose Avenue Street and Bridge Reconstruction I have prepared the attached resolution for your consideration at the November 7 City Council meeting. The resolution adopts Alternative 4, the three-lane bridge and three-lane road alternative, as the preferred design of the Melrose Avenue street and bridge reconstruction. This is the consultant's recommended alternative and has also been endorsed by City staff, The resolution states the reasons for adopting it as the preferred design. Since the specific pavement width of Alternative 4 has been an issue, the resolution states the consultant's recommended pavement width of 47 feet, The Alternative 4 design with a pavement width as narrow as 47 feet would require us to use Iowa DOT's alternative design guidelines. We are hopeful approval would be granted by the State for us to use the alternative design guidelines, if that is Council's desire. Independent of the alternative designs for the street and bridge reconstruction, Council asked for an assessment of how narrow the Melrose Avenue Bridge could be reconstructed and still maintain two-way traffic during the reconstruction. Rick Fosse has informed me the answer is 40 feet. As I have stated to you previously, any of alternatives 1 through 6 which were evaluated are acceptable from an environmental impact point of view. We would expect the Federal Highway Administration to concur with the selection of any of alternatives 1 through 6 as the preferred reconstruction alternative. It is not recommended you adopt alternative 7, as negative environmental impacts to University property have been identified. You may amend the attached resolution by motion prior to consideration at the November 7 meeting. Please let me know if you need any additional information. cc: City Manager City Engineer Attachment RESOLUTION NO. RESOLUTION ADOPTING A PREFERRED DESIGN ALTERNATIVE FOR THE MELROSE AVENUE STREET AND BRIDGE RECONSTRUCTION BETWEEN BYINGTON ROAD AND THE EAST CORPORATE LIMITS OF UNIVERSITY HEIGHTS. WHEREAS, an environmental assessment/alternatives analysis has been conducted which has identified Alternative 4 (three-lane bridge and three-lane road) as the preferred alternative for the Melrose Avenue street and bridge reconstruction project; and WHEREAS, the three-lane bridge/three-lane road design improves pedestrian and bicycle safety throughout the corridor; and WHEREAS, traffic operations along Melrose Avenue would improve in direct relation to public transit vehicles being able to pull over into the shoulder area of the proposed design; and WHEREAS, the three-lane bridge/three-lane road design addresses the bridge deficiency issue; and WHEREAS, the three-lane bridge/three-lane road design would improve safety conditions for vehicles turning left from Melrose Avenue; and WHEREAS, three-lane roadways typically have a 60% lowJr accident rate than four-lane undivided roadways, and a 3% lower accident rate than two-lane roadways; and WHEREAS, the three-lane bridge/three-lane road ;design would improve traffic flow conditions on Melrose Avenue by providing increased capacity; and WHEREAS, under the three-lane bridge/three-lane road design landscaping and lighting treatments can be incorporated which will enhance the visual amenities in the corridor; and WHEREAS, the three-lane bridge/three-lane road design will avoid direct taking of 4{f) protected (historic) property within the corridor. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: Alternative 4, the three-lane bridge and three-lane road alternative, is adopted as the preferred alternative for the Melrose Avenue street and bridge reconstruction project. The consultant is directed to complete the Request for a Finding of No Significant Impact (FONSI) document for submission to the Iowa Department of TranspOrtation and the Federal Highway Administration with Alternative 4 identified as the preferred design alternative. Resolution No. Page 2 Staff is directed to negotiate with the Iowa Department of Transportation for use of the alternative urban design guideline standard of 14.3 meters (47 feet} pavement width for the corridor reconstruction. Passed and approved this day of , 1995. ATTEST: CITY CLERK MAYOR Approved by City Attorney's Office It was moved by and seconded by adopted, and upon roll call there were: AYES: NAYS: the Resolution be ABSENT: ~ Baker Horowitz Kubby Lehman Novick · Pigot~ Throgmorton October 24, 1995 A LE'71~ER TO CITY COUNCIL FROM THE MFJ JROSE AVENUE NEIGHBORHOOD ASSOCIATION We, the members of the Melrose Avenue Neighborhood Association, were pleased with the recommendation contained in the final version of the Melrose Avenue environmental assessment (EA) for a three-lane bridge and road. This was the position that our association had long advocated, for the many reasons previously stated in our position statement, and it was gratifying to receive the support of the consultants on so many points. As you consider a resolution on the Melrose Avenue project, we wish to discuss three commonly-held notions that may affect your decision concerning the width of the new bridge and road. F~mt is the argument that we need to construct a wide piece of pavement in order to preserve "future flexibility" ("flexibility" here means convertibility to 4 lanes at some future date). This would be a prudent step to take if future conversion to 4 lanes is a real option, but we would argue that it will be either unnecessary or unthinkable. Future traffic counts on Melrose Avenue will determine a consideration of the number of lanes. If traffic counts turn out to be as they were projected in the EA (or are in fact less than the projections), there will be no need to consider widening the bridge and road to 4 lanes: the 3-lane option, coupled with the signalization of the Koser Street intersection, will result in a significant improvement to the traffic flow along Melrose Avenue. On the other hand, if future traffic counts exceed projections, then all of the problems cited in the EA--pedestrian, bicycle and vehicular safety, intersection congestion, lack of continuous sidewalks on the north s~de of the street--all these will be exacerbated under the 4-lane alternative. It is difficult to imagine a scenario where 4 lanes would ever seem an appropriate choice, given what the consultants have whtten about the likely consequences of a 4-lane bridge and road. Second, them is an argument that says that the decision about to be made on the bridge and road will take cam of the Melrose Avenue problem once and for all: with one bold gesture, we will finally fix the situation. The EA is very clearon this point: no single soluuon will solve the problem. The constraint in this part of town is the number of access points, especially the intersections. AI though a 3-lane bridge and road will go a long way towards improving the situation, the 5 intersections included in the project corridor will all be operating at the lowest levels of service during peak hours, regardless of the alternative selected. In other words, a w~der bridge and road will not result in a "final solution" to the problem. Finally, there is a notion that the Melrose Avenue neighborhood is really no different from all the other Iowa City neighborhoods in terms of stability and integrity. This argument suggests a failure to recognize the kind of pressure that our neighborhood is under by virtue of its location, i.e., bounded on the north by the University and UIHC with their continuing encroachment, and on the south by the many apartment complexes along Greenwood and Benton Streets. Within the last 6 months, 2 houses on Melrose Avenue have been permanently removed from the private residence rolls, while a third has been converted from single family to group student housing. Ours is a fragile neighborhood, subject to many influences that we are unable to effectively combat. We believe that this is all the more reason for the City to step in and help when it is able to do so. In light of these points, and others to follow, we ask that, in your deliberations about the Melrose Avenue project, you consider constructing the narrowest 3-lane bridge and road consistent with safety, utility and preservation of neighborhood integrity. It is our sincere hope that such a bridge and road would be less than 47 ft. wide, the width recommended by the consultants. Page 1 of 2 October 24, 1995 With respect to the road itself, the neighborhood would like to see is an improved, functional "city street" that does not threaten the character of our neighborhood, yet maximizes the safety of vehicles, bicycles and pedestrians. The road which best meets these requirements is a three-lane road of modest dimensions. Such a road: · is less costly than a four-lane road striped for three; o requires less land and less clear-cutting of the adjacent landscape, allowing more room for plantings; · preserves the aesthetic quality and does not contribute to further degradation of the neighborhood; · may allow space for bus bays to insure the free flow of traffic and the safe discharge of passengers; · means a narrower, less dangerous road for pedestrians to cross; · allows for ample bicycle lanes; · does not significantly add to congestion at intersections; and · offers an efficient roadway that does not promise to become a disruptive thoroughfare at some future time. We believe that a true 3-lane bridge/3-1ane road will create an efficient roadway that preserves and even enhances the historic and fragile Melrose neighborhood. One additional request is that our neighborhood group not only be kept apprised of developments as the reconstruction project moves forward but also be allowed continued input on the project. We are especially interested in being included in the design phase of the work, at which point the location and kind of cross walks and the decisions conceming lighting and plantings will be discussed. Many of us believe that we have made a significant contribution to the Melrose Avenue discussion, and we hope that you will welcome our participation in the future. In closing, we want to thank you for the considerable time and attention that you all have devoted to this matter. We have always believed that the Melrose Avenue reconstruction project is of great importance, not only to our neighborhood, but also to the entire city. By your actions, you have indicated that you believe this as well. We appreciate your support and hope you w~11 give our comments and requests careful consideration. On behalf of the Melrose Avenue Neighborhood Association, Michaelanne Widness President Page 2 of 2 Melrose Bridge Dimensions 4 Current Bridge (Alternative 1) 3011 42tt. Barrier New 2-Lane B ridge Shoulder ~ ~. . (Altern~.tive 2 aM 3) : ,11 ~ 45.3 ft (1.5 x existing bridge) 64.3 ft (1.53 x existing b. ridge) Original New 3-Lane Bridge (Alternative 4 and 5) 54.5 ft (1.85 x existing bridge)~ 73.2 ft"(1.74 x existing bridgei ~ · i Revised New 3-Lane Bridge (EA Recommended Alternative 4) Oft 10ft 47 ft ( 1.57 x existing bridge) i 66 ft (1.57 x existing bridge) 2Oft 3Oft 4Oft 5011 70ft 80fi "The BridE_es of Johnson County" (back of curb to back of curb) Oft College & Gilbert Street Brid :48£t Dodge Street Bridge i 52ft ... Benton Street Bridge ~ --56ft i 10ft 201t 30ft 40ft le$ : 5Oft NOTICE OF PUBLIC HEARING ON PLANS, SPECIFICATIONS, FORM OF CONTRACT AND ESTIMATED COST FOR CONTRACT 1 o SOUTH RIVER CORRIDOR INTERCEPTOR AND RELIEF SEWERS PROJECT IN THE CITY OF IOWA CITY, IOWA TO ALL TAXPAYERS OF THE CITY OF IOWA CITY, IOWA, AND TO OTHER INTERESTED PERSONS: Public notice is hereby given that the City Council of the City of Iowa City, Iowa, will conduct a public hearing on plans, specifica- tions, form of contract and estimated cost for the construction of Contract I - South River Corridor Interceptor and Relief Sewer Project in said City at 7:30 pm on the 24th day of Octo- ber, 1995, said meeting to be held in the Coun- cil Chambers in the Civic Center in said City. Said plans, specifications, form of contract and estimated cost are now on file in the office of the City Clerk in the Civic Center in Iowa City, Iowa, and may be inspected by any inter- ested persons. Any interested persons may appear at said meeting of the City Council tor the pro'pose of making objections to and comments concerning said plans, speci[ications, contract or the cost of making said improvement. This notice is given by order of the City Council of the City of Iowa City, Iowa and as provided by law. MARIAN K. KARR, CITY CLERK