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2005-06-07 Public hearing
NOTLCE OF PUBL/C HEARZNG Notice is hereby given that a public hearing will be held by the City Council of ]Iowa City, Iowa, at 7:00 p.m. on the seventh day of June, 2005, in Emma .1. Harvat Hall, 410 E. Washington Street, Iowa City, Iowa, or if said meeting is cancelled, at the next meeting of the City Council thereafter as posted by the City Clerk; at which hearing the Council will consider: 1. An ordinance approving a Sensitive Areas Overlay Zone and a Sensitive Areas Development Plan for MWD Davis Addition (REZ05-00001); 2. An ordinance rezoning approximately 25.67 acres by amending a Planned Development Housing Overlay - Low Density Single Family Residential (OPDH-5) Plan in order to allow additional zero lot line dwellings for property located on Wintergreen Drive (REZ04- 00017/SUB04-00017); 3. A resolution approving the annexation of approximately 29.7 acres of territory located north east of Highway 218 adjacent to Deer Creek Road in north west Iowa City (ANN05- 00001) A copy of the proposed ordinances and resolution are on file for public examination in the office of the City Clerk, City Hall, 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, C1TY CLERK City of Iowa City MEMORANDUM Date: April 29, 2005 To: Planning and Zoning Commission From: John Yapp, Associate Planner Re: REZ05-00001/SUB05-00003 MWD Davis Addition Sensitive Areas Development Plan We have received a revised wetland buffer averaging proposal for the MWD Davis Addition Sensitive Areas Development Plan. The proposal extends a designated wetland buffer approximately 400 feet south to a culvert under Kitty Lee Road. The culvert captures stormwater and directs it toward the wetland area. The previous version of the wetland buffer averaging proposal extended the buffer approximately 950 feet south along Kitty Lee Road. Other portions of the designated wetland buffer are proposed to be enlarged or reduced to result in slightly more developable land, and to create more predictable, consistent buffer boundaries in relation to property lines. Staff finds this meets the intent of the Sensitive Areas Ordinance, which states that one of the considerations for buffer averaging is the design and layout of the proposed development in relation to the wetland. For the buffer area to benefit the wetland, it should be planted with wetland compatible vegetation that will help 'filter' storm water by helping to capture sediments before they reach the wetland proper. The buffer area along Kitty Lee Road, and in other areas not previously included, should be added to the wetland planting plan that was prepared for the wetland mitigation plan. STAFF RECOMMENDATION Staff recommends REZ05-O0001/SUB05-00003, a Sensitive Areas Overlay Zone and approval of a Sensitive Areas Development Plan and Preliminary Plat of MWD Davis Addition, a 14-1ot, 50.04 acre commercial subdivision be approved, subject to the wetland planting plan including the wetland buffer area, prior to City Council consideration. ~' ~/. ~C.,~ Approved by: _ Karin/Franklin, Director, Department of Planning and Community Development ATTACHMENTS 1. Wetland buffer averaging proposal 2. Preliminary plat POiNt OF BEGINNING \ FIGURE 1 AVERAGED BUFFER : ~.55 ACRES PRELIMINARY PLAT & SENSITIVE AREAS DEVELOPMENT PLAN IOWACITYIOWA :o hOCATIO N MAP ~,?~,~'~.., ,, ,~ STANDARD LEGEND AND NOTES STAFF REPORT To: Planning & Zoning Commission Prepared by: John Yapp Item: SUB05-00003/REZ05-00001 Date: April 21,2005 MWD Davis Addition GENERAL INFORMATION: Applicant: James R. Davis, Robert A Davis Jan Ellen Smith, c/o James R. Davis 4097 Kitty Lee Road Iowa City, IA 52240 Phone: 338-5327 Applicant's Engineer: MMS Consultants 1917 S. Gilbert Street Iowa City, IA 52240 Phone: 351-8282 Applicant's Attorney: Thomas Gelman 321 E. Market Street Iowa City, IA 52245 Phone: 354-1104 Requested Action: Approval of a Preliminary plat and a Sensitive Areas Development Plan Purpose: A 14-1ot commercial subdivision Location: North of Highway 1, west of Highway 218 Size: 50.04 acres Existing Land Use and Zoning: Undeveloped, County A1 Upon annexation and zoning by Iowa City: CC-2, C1-1, CO-1 and RR-1 zoning will be applied to this property Surrounding Land Use and Zoning: North: Residential and vacant; County A1 and RS; South: Highway 1 East: Highway 218 West: Residential and Agricultural; County RS Comprehensive Plan: The South Central District Plan identifies the approximate southern 2/3 of this property as Commercial; the northern 1/3 of the property is identified as Office Commercial. File Date: March 30, 2005 45-Day Limitation Period: May 14, 2005 SPECIAL INFORMATION: Public Utilities: City water and sewer will be made available upon annexation. The property owner will be responsible for extending water and sewer lines, and providing a sewer lift station for sewer service. Public services: Police and fire protection will be provided by the City upon annexation; private refuse collection is required for commercial properties. Transportation: Access to the area will be via Highway 1 with secondary access via Kitty Lee Road. No public transit extends to this property. Sensitive Environmental Areas: The Sensitive Areas Inventory Map shows a potential wetland on the property proposed for annexation that will need to be addressed when a development plan is submitted. The Map also shows potential steep slopes on the property. BACKGROUND INFORMATION: This property is in the process of being annexed to Iowa City. The applicant, James Davis, is applying for a 14-1ot, 50.04 acre commercial subdivision of the property. Because of the presence of wetlands, a Sensitive Areas Overlay Zone and approval of a Sensitive Areas Development Plan is required. The zoning designations of the property are a mixture of commercial zones. Following the lot numbers on the proposed preliminary plat, Lot 3 is zoned C1-1, Intensive Commercial; Lots 1-2, 9-14 are zoned CC-2, Community Commercial; Lots 6-8 are zoned CO-1, Office Commercial; and Outlot B at the north end of the subdivision, identified as an open space outlot, is proposed as RR-1, Rural Residential. U:~subdivisions\MWD Davis prelin3ainry and SAO.doc ANALYSIS: SENSITIVE AREAS DEVELOPMENT PLAN The Sensitive Areas Ordinance requires a Sensitive Areas Overlay Zone and approval of a Sensitive Areas Development Plan due to the presence of wetlands on the property. The applicant has proposed a wetlands mitigation plan which is being reviewed by the Army Corps of Engineers (COE), who have authority over 'Waters of the United States.' COE approval of the mitigation plan, which details the compensatory mitigation, wetland plantings, erosion control, and drainage pattern on the property, should be obtained prior to Council consideration of the Sensitive Areas Development Plan. Description of proposed wetland: As described in the Wetland Mitigation Plan, in order to compensate for wetlands disturbed with this development, part of the created wetland will be on the Davis property on the west side of Kitty Lee Road. On the MWD Davis Addition site, two types of wetland are proposed, a created emergent wetland and created floodplain wetland. The wetlands lead to and surround a pond, which is proposed for stormwater detention. The pond itself is not considered to be part of the wetland proper since it is too deep to support wetland plant life. Surrounding the wetlands is a upland buffer area meant to address the buffer requirements of the City Sensitive Areas Ordinance. There are also existing and proposed wetlands on Outlot A of the MWD Davis Addition site. Wetland buffer: City code requires a 100-foot buffer between any development activity and the perimeter of the wetland. A buffer is defined as: "An area of land that is located adjacent to a designated sensitive area and provides a transition area that protects slope stability, attenuates surface water flows and preserves wildlife habitat and protected wetlands, stream corridors and woodlands." City Code subsection 14-6K-1G(3b.3) states that "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" [italics added]. The width of the required buffer may not be reduced more than 50% (50 feet in this case). The Sensitive Areas Ordinance gives four criteria by which to review buffer averaging: 1) the proposed land use and its potential impact on the wetland; 2) The design and layout of the proposed development in relationship to the wetland; 3) the physical characteristics of the site and the wetland; 4) Any other factor related to the short- or long-term environmental stability and health of the wetland. In this case the applicant's engineer has proposed 'averaging' the required buffer partly along the western edge of the property, parallel to the Kitty Lee Road right-of-way, and partly at the rear of Lot 6, in the vicinity of the planted screen of pine trees. The applicant's engineer is making the case that a larger buffer in this area is appropriate in order to filter runoff from Kitty Lee Road, before this runoff reaches the wetland; Staff has requested a written request and explanation for the buffer averaging for the Commission. Staff recommends not accepting the buffer averaging as proposed. The area adjacent to Kitty Lee Road will be filled and retrofitted with a storm sewer when Kitty Lee Road is improved in the future. Much of this area is a proposed slope, sloping up to Lot 1, and will not convey water. The area behind Lot 6 does not appear to be integral to the wetland; it U:~subdivisions~MWD Davis prelimainry and SAO.doc is just an undevelopable area due to the gas pipeline and proposed landscaped buffer. The buffer does not meet the minimum 50-foot requirement between the wetland and the proposed location of the Naples Avenue cul-de-sac. While staff is not opposed to buffer averaging in concept, the averaging should still result in a buffer that is adjacent to the wetland itself. Stormwater runoff from Naples Avenue: The other point-source of runoff that will affect the wetland is directed from the Naples Avenue cul-de-sac. The Sensitive Areas Ordinance discourages direct discharge of stormwater onto a wetland; the applicant is proposing to direct this runoff directly into the pond instead of the wetland. The City's Development Regulations Specialist is comfortable with this concept. Steep slopes: There is a small a[ea of steep slopes to on the west side of the wetland area, that is not proposed to be disturbed other than the planting of vegetation on it. The applicant has identified an area of soil on the property that has recently been stockpiled that may contain steep slopes. It is not the intent of the Sensitive Areas Ordinance to protect such stockpiles of soil. PRELIMINARY PLAT The preliminary plat consists of 14 commercial lots. Lots 3-14 are proposed to be accessed from an extension of Naples Avenue, which is proposed to be designed as a collector street. The access points for Lots 3, 13-14 are identified on the plat. These access points are part of the Conditional Zoning Agreement proposed for the property, and will preserve queuing space for southbound Naples Avenue traffic. Naples Avenue is proposed to have three exiting and two entering lanes at its intersection with Highway 1, as recommended in the approved traffic study for the development. Other improvements to the intersection will be identified on the construction plans for the property which will accompany the final plat. Lots 1-2 are proposed to access Kitty Lee Road via a 40-foot wide access easement. As per the Conditional Zoning Agreement for this property (which to date has not been approved), Kitty Lee Road will need to be improved to collector street standards in conjunction with any development on Lots 1-2. In addition, prior to development on Lots 1-2, a traffic study will need to be done to determine any improvements needed to the Kitty Lee Road / Highway 1 intersection. Grading and erosion control plan: A grading and erosion control plan has been submitted in conjunction with this plat, and has been approved by Engineering staff. Storm water management: Storm water management is proposed to be directed to the pond surrounded by the wetland in Outlot A of the development. Water main and sanitary sewer fees: A water main extension fee of $395/acre will be required. Because the developer is constructing a lift station and sewer system to serve this property, no sanitary sewer fee is required. U:\subdivision$\MWD Davis prelimainry and SAO.doc STAFF RECOMMENDATION: Staff recommends that REZ05-00001/SUB05-00003, be deferred pending the minimum 50-foot required wetland buffer being shown, and Commission acceptance of buffer averaging for the wetland area. Upon resolution of the wetland buffer location, staff recommends REZ05-00001/SUB05- 00003, a Sensitive Areas Overlay Zone and approval of a Sensitive Areas Development Plan and preliminary plat of MWD Davis Addition, a 14-1ot, 50.04 acre commercial subdivision, be approved subject to the Army Corps of Engineers approving the wetland mitigation plan prior to Council consideration. ATTACHMENTS: 1. Preliminary plat and Sensitive Areas Development Plan Approved by: jeff Dav~ s~on, Assistant Director, Department of Planning and Community Development U:~subdivisions\MWD Davis prelimain~ and SAO.doc CITY OF IO%A CITY ~ ~,_~ _.~, . ,~ ~~ ,,..,.. ,~~w~ _ ~ ..... ~ __~ ,~, . .... SITE LOCATION: Highway 1 and Ki~ Lee Road SUB05-00003/REZ05-00001 PRELIMIb~ARY PLAT & SENSITIVE ARE~ DEVELOPMENT PLAN MWD DAVIS ADDITION ~ IOWA CITY, IOWA ~'~ -~ :.-Z-.--'-'-'-'-'-'-'-'--~'-'- --: -"-=~ 2 [-...-..] 7~ ........ ~ I /// REQUEST FOR WETLAND BUFFER AVERAGING FOR MWD DAVIS ADDITION IOWA CITY, JOHNSON COUNTY, IOWA Request to the City of Iowa City for Wetland Area Buffer Zone Averaging for the MWD Davis Subdivision off of Kitty Lee Road. This proposed development is in the northwest and southwest quarter of Section 20, Township 79 North, Range 6 West in Iowa City, Johnson County, Iowa. MMS Consultants, Inc., on behalf of our client Jim Davis, would like to request wetland buffer averaging. A wetland delineation for this property was completed in 2003. A total of 5.26 acres (229,126 sq.ft.) ofpalustrine; flat; emergent; broad and narrow-leaved persistent and non-persistent (seasonally flooded basin) wetland were delineated. A wetland mitigation plan has been prepared and reviewed by the Corps of Engineers for the impact to 3.55 acres of this wetland area. With this mitigation plan, 5.58 acres of wetland and upland buffer area will be created. It is the buffer around these newly created wetlands that we are requesting to be averaged. Area for which buffer averaging is requested: Total proposed created wetland acreage on this property is 3.27 acres and the existing unimpacted wetland acreage is 1.26 acres. Of the proposed created wetlands, 2.83 acres are located in Outlot A and 0.44 acres are located in Outlot B. All 1.26 acres of the existing unimpacted wetland are located in Outlot B. All of the proposed and existing wetlands in Outlot B will have a 100 foot buffer as required by the City of Iowa City and as can be fit on to Mr. Davis property. It is for the proposed created wetlands in Outlot A that we would like to request buffer averaging. The attached Figure 1 shows a 100 foot buffer around the proposed created wetlands in Outlot A. The area of this buffer that is on Mr. Davis' property is 4.63 acres. Figure 2 shows the proposed averaged buffer. The proposed averaged buffer has a total area of 5.43 acres. The proposed averaged buffer includes a buffer area adjacent to Kitty Lee Road. City staff has questioned whether this area adjacent to Kitty Lee Road should be allowed to be called buffer. This area will provide buffer for the wetlands because the runoff from Lots 1 and 2, the runoff from Highway 1 fight-of-way, the runoff from Kitty Lee Road right-of-way and the runoff from land west of the development will all flow through this area. This area will provide a vegetated buffer strip that will partially treat the runoff from these areas before it reaches the wetland. This area is adjacent to the wetland and provides a transition area that protects slope stability, attenuates surface water flows (from the aforementioned areas), and preserves wildlife habitat and protected wetlands and stream corridors. Some of this area proposed as buffer is currently wetlands. These areas are proposed to be filled in order to construct the development. However, it is likely that if this area is allowed to remain as a drainage way, this area will revert back to wetlands over time. Also, the Sensitive Areas Ordinance states that "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". This increased buffer area as proposed would be desirable to provide additional protection for the entire wetland area. This area provides more protection for the wetlands than the steep slopes directly adjacent to the wetlands. Therefore, due to the amount of runoff that will use this drainageway and be partially treated as a result, as well as the fact that this area will buffer the wetland area more in a better way than the area directly adjacent to the wetlands, this area should be considered an acceptable buffer to protect the created wetland area. City staff has raised the point that this proposed buffer area adjacent to Kitty Lee Road will no longer act as buffer when Kitty Lee Road is improved to City standards and the drainageway is filled in and storm sewer is installed. This is not entirely true. The area that we have proposed as buffer adjacent to Kitty Lee Road is currently in an easement to Mid American Energy for the relocation of their gas pipelines. Therefore, if at any time in the future the city wanted to improve Kitty Lee Road, they would have to ask for permission from Mid American Energy to place fill over the pipelines. It is likely that Mid American Energy would not allow this fill to be placed in order to protect the pipelines. Therefore, there would still have to be some sort of drainageway in this area if no fill was allowed to be placed. Some of the runoff would be diverted from this area if and when Kitty Lee Road is improved; however it is likely that the runoff from Lots 1 and 2 as well as the runoff from Highway 1 right-of-way would continue to use this drainageway even if Kitty Lee Road is improved. Another question is whether Kitty Lee Road will ever be improved to city standards. It was discussed in the City Council meeting of April 5, 2005 that it is likely that Kitty Lee Road will not be improved for a long time in the future, if ever. It was discussed that likely Kitty Lee Road will remain in its current state for the foreseeable future and would likely continue to be used as it is currently. Therefore, the City Council decided that the developer should not have to pay any costs toward the improvement of Kitty Lee Road as it would likely never be improved. The proposed averaged buffer area will serve the development better than the standard unaveraged buffer. This proposed buffer will both protect the wetland as well as provide the development with green space that will make the entire development more attractive. The proposed land use and design layout of the development will not be affected by the proposed buffer area. Based on these considerations, MMS Consultants Inc. would like to request buffer averaging for this project. L FIGURE 1 UNAVERAGED BUFFER = 4.63 ACRES 1" = 150' POINT OF BEGINNING FIGURE 2 AVERAGED BUFFER = 5.43 ACRES 1" = 175' City of Iowa City MEMORANDUM Date: March 31, 2005 To: Planning and Zoning Commission From: Robed Miklo Re: REZ04-00017/SUB04-00017 The applicant has submitted a revised Preliminary Plat and Planned Development Overlay Plan for Village Green Part XXIII and XXIV for the Commission's reconsideration. The revised plan includes 38 single-family lots (lots 65-79, 98-103, and 126-140) and 38 zero-lot line lots (lots 80-97 and 106-125). This is reduction of'6 zero-lot line lots when compared to the previous plan reviewed by the Commission. The zero-lot line lots have been removed from the areas to the south of Chelsea Court and east of Richmond Lane. The design of the central zero-lot lines with access to the private alley has not changed. As noted in previous staff reports neighborhood open space and water main extension fees apply to this subdivision and will need to be addressed in the legal papers at time of final plat approval. The City Engineer has identified errors on the preliminary plat that must be COrrected prior to the Commission's vote. STAFF RECOMMENDATION: Upon correction of the preliminary plat staff recommends that REZ004-00017/SUB04-00017 a rezoning from Low Density Single-Family Residential (RS-5) zone to Planned Development Housing Overlay - Low Density Single-Family Residential (OPDH-5) zone and a preliminary plat of Village Green, Part XXIII and XXIV, a 76-1ot residential subdivision (38 single-family lots and 38 attached zero-lot line lots) on 25.67 acres of property located on Wintergreen Drive be approved. ATTACHMENTS: Preliminary Plat and OPDH plan Approved by:(~~' [~pin Franklin, Director, artment of Planning and Community Development S~pcd~staffreports\REZ04-00017villagegreen i , CHURCHILL W Generol M/71s / Village Green, Wintergreen Dr. REZ04-O0017/SUBO~O~17 STANDARDL£~ND ANDNOT[$ P¥clii,Hnary Plat &' O.P.D. ti Plan Page 1 of 1 Bob Miklo From: SENNEFFT@aoI.com Sent: Thursday, April 07, 2005 4:53 PM To: Bob-Miklo@lowa-City.org Subject: To Planning & Zoning Comm As President of Wellington Condominiums at Oxford Place, an Association of 10 property owners within 200 feet, we object to the proposed revised Preliminary Plat for Village Green Part 23 and 24. 1. We each bought our units with the understanding that the property in question would stay zoned single family homes, not zero lot line residences. 2. This would greatly increase the density, adversely affecting the value of our units. This is especially true in view of that fact that our assessment was dramatically raised in this past week (about $200,000.00). 3. Traffic would be dramatically increased, forcing children of tender years to be put in harms way on their way to two schools that serve the area. Thomas C. Senneff 1370 Oxford PL 354 - 2060 4/7/2005 PROTEST OF REZONING TO: HONORABLE MAYOR AND CITY COUNCIL IOWA CITY, IOWA We, the undersigned, being the owners of twenty percent or more of the area of the property included in the proposed zoning change, or the owners of twenty percent or more of the property which is located within two hundred feet of the exterior boundaries of the property for which the zoning change Is proposed, do hereby protest the rezoning of the following property: This petition is signed and acknowledged by each of us with the intention that such rezoning shall not become effective except by the favorable vote of at least three-fourths of all the members of the council all In accordance with §414,5 of the Code of Iowa. H/r ~. Property Address // - STATE OF IOWA ) JOHNSON COUNTY ) On this '~day of ~'~oru~-~u.~ ,20 dE>, before me, the under.[signe, d, a Notary Public in and for~sald County and ~State, personally appeared ~-/.r//s ~.'~-~/~-t and .;~'~'j~ #. ~..~.~-/,~ to me known to be the identical persons named in and who executed the within'and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. /' Owner(s) of ~ ~) ' Property Address ....//_ JOHNSON COUNTY ) On this r~r~ day of ~ , gO.o..,~_, before me, the. under, signed, a ~ary Prublic in and ~/~4~/-/..~-'~ to me known to be the identical persons named ~ and who executed 'the wl~-l~n and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. ',~ ~~ ! Notary Public i~ an~'E-fOr'th~ State of Iowa I PROTEST OF REZONING TO: HONORABLE MAYOR AND CITY COUNCIL IOWA CITY, IOWA We, the undersigned, being the owners of twenty percent or more of the area of the property included in the proposed zoning change, or the owners of twenty percent or more of the property which Is located within two hundred feet of the exterior boundaries of the property for which the zoning change is proposed, do hereby protest the rezoning of the following property: This petition is signed and acknowledged by each of us with the intention that such rezoning shall not become effective except by the favorable vote of at least three-fourths of all the members of the council, all In accordance with §414.5 of the Code of Iowa. Owner(s) of Property Address ~" STATE OF IOWA ) ) ss: JOHNSON COUNTY ) On this ~P~ day of F~',~. ,20 O~,, before me, th~e...undersigned, a Notary Public in and for said County and State, personally appeared ~/',~ J~;~,.--~-,,-.--_____ and ~,//'~ ~z~d',~,~--....__ to me known to be the identical persons named in and who executed the within and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. o~, SONDRAEFORT I I~ I~ ~'l C°mmissi°n Nurnber ~ 5979t --~ ¢~;;~.~ ,' ' My Commission Expires t'~1 ~- ~' ~G I Notary Public in and for the State of Iowa By: Owner(s) of Property Address STATE OF IOWA ) ;,:: ;:: _,, '~-i JOHNSON COU~ ) On this day of ,20 , before me, the undersigned, a Nota~ Public i~nd for said Coun~ and State, pemonally appeared and to me known to be the identical persons named in and who exec~ed the within and foregoing InsEument and acknowledged that they executed the same as their volunta~ a~ and deed, Notary Public in and for the State of Iowa PROTEST OF REZONING TO: HONORABLE MAYOR AND CITY COUNCIL IOWA CITY, IOWA We, the undersigned, being the owners of twenty percent or more of the area of the property Included In the proposed zoning change, or the owners of twenty percent or more of the property which is located within two hundred feet of the exterior boundaries of the property for which, the zoning change Is proposed, do hereby protest the rezoning of the following property: This petition is signed and acknowledged by each of us with the intention that such rezonlng shall not become effective except by the favorable vote of at least three-fourths of all the members of the council, all In accordance with §414.5 of the Code of Iowa. By: ~ [(~vner(s) of " - Property Addres~ / ~ STATE OF IOWA ) ) SS: JOHNSON COUNTY ) On this~.~rV, day of T-p"o~ .~,---~, , 20o-~>, before me, the undersigned, a Notary Public in and for said County and State, personally appeared -~,~ .~ '.--~\ ~-o ~ and ~ c ~ % ~ \ ~_ o...,--~ to me known to be the Identical persons named in and who executed the within and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. __ ~ . / .... /.ti ' J~o~al~3~-.. No.~ry Publio in and fo~ th'o ~'~e~ ,?wa By: Owner(s) of Property Address ,~ :~!~ STATE OF IOWA ~ : ~-~ JOHNSON COUNTY _._ ~:- ~:, .~-/ On this day of , 20 , before me, the undersigned, a~ta~ ~blic ~ in and for said Coun~ and State, pemonally appeared r~ and to me known to be the identical persons named in and who exec~ed the within and foregoing instrument and acknowledged that they executed the same as their volunta~ a~ and dead. Notary Public in and for the State of Iowa PROTEST OF REZONING TO: HONORABLE MAYOR AND CITY COUNCIL IOWA CITY, IOWA We, the undersigned, being the owners of twenty percent or more of the area of the property included In the proposed zoning change, or the owners of twenty percent or more of the property which is located within two hundred feet of the exterior boundaries of the property for which the zoning change is proposed, do hereby protest the rezoning of the following property: This petition is signed and acknowledged by each of us with the intention that such rezoning shall not become effective except by the favorable vote of at least three-fourths of all the members of the council, all in accordance with §414.5 of the Code of Iowa. STATE OF IOWA ) JOHNSON COUNTY ) On this ~ day of ~-"~r'c~ rc~, 20oS, before me, the undersigned, a Notary Public in and for said County an~d State, petgonall~'~peared ~---~o~wo_5 ~, ~nr~ and ~..Jo.r~o~ /~. ~r3~_~2{C to me known to be the Identical persons named in and who executeCYthe within and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. i KELLIE ~Cornmission Number 2218,, L I 4/~./o~ I Notary Public In and for the State of iowa By: Owner(s) of Property Address STATE OF IOWA ) ) ss: JOHNSON COUNTY ) On this day of ,20 , before me, the undersigned, a Notary Public in and for said County and State, personally appeared and to me known to be the identical persons named in and who executed the within and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. Notary Public in and for the State of Iowa PROTEST OF REZONING TO: HONORABLE MAYOR AND CiTY COUNCIL IOWA CITY, IOWA We, the undersigned, being the owners of twenty percent or more of the area_::O/the property included in the proposed zoning change, or the owners of twenty percent ~rr mor~f the property which is located within two hundred feet of the exterior boundaries of the property for which the zoning change is proposed, do hereby protest the rezoning of the following property: This petition is signed and acknowledged by each of us with the intention that such rezoning shall not become effective except by the favorable vote of at least three-fourths of all the members of the council, all in accordance with §414.5 of the Code of Iowa. Owner(s) of Property AddresS./ STATE OF IOWA ) ) ss: JOHNSON COUNTY ) On this ;~'t~ay of ~; ~ ~F~, 20oz~, before me, ~e undersigned, a Nota~ Public in and for said Coun~ and State, per~nally appeared ~ ~. ~o~ and ............... to me known to be the identi~l persons named in and who executed the w~hin and foregoing in~mment and acknowledged that they executed the same as their volunta~ a~ and deed. ~ ' · Not~ Public in and for the 8rate of Iowa ~ner(s) of Prope~ Add~ STATE OF IOWA ) ) ss: JOHNSON COUNTY ) On this,~hday of ~--~r~<2 f~, 20©5, before me,ft~e undersi~aned, a Notary Public in and for said County and State, pets'onally appeared L.g~r~.-~ L.~. /3~ic~¢r-~,.~, ~ and ~-- ..................... to me known to be the identical persons named in and who executed the within and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. !-.~ KELUE ~.TUTTLE ' · · My Co mis ion Expires ' ~F~/.~ F'~% Notary Public in and for the State of Iowa PC/i) PROTEST OF REZONING TO: HONORABLE MAYOR AND CITY COUNCIL IOWA CITY, IOWA We, the undersigned, being the owners of twenty percent or more of the area of the property included in the proposed zoning change, or the owners of twenty percent or more of the property which is located within two hundred feet of the exterior boundaries of the property for which the zoning change is proposed, do hereby protest the rezoning of the following property: This petition is signed and acknowledged by each of us with the intention that such rezoning shall not become effective except by the favorable vote of at least three-fourths of all the members of the council, all in accordance with §414.5 of the Code of Iowa. Owner(s) of Property Ac/dress STATE OF IOWA ) ) SS: JOHNSON COUNTY ) day of ~b~'~ , 20 o.~, before ma, ~e undersigned, a Notary, Public in and On this for said County and State, personally appeared ~/g.~ ~/4,c ,~ ~"r ~. ~3 It I~. and to me known to be the identical persons named Jn and who executed the within and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. Notary Publi(~ in and for the State of Iowa E~y: Owner(s) of Property Address STATE OF IOWA ) ~ ;~, ) SS: ~ JOHNSON COUNTY ) ~ ' ~ On this day of ,20 , before me, the undersigned, a NotaryJ~ablic i~and~-~ for said County and State, personally appeared ? ~;~ ~ and%" to me known to be the identical persons nam~ in ari~- wh~' ~ executed the within and foregoing instrument and acknowledged that they executed ti'r~same as their voluntary act and deed. "~ Notary Public in and for the State of Iowa Cc: ~/4 NOTICE OF PUBLIC HEARING Notice is hereby given that a public hearing will be held by the City Council of Iowa City, Iowa, at 7:00 p.m. on the 17th day of May, 2005, in Emma J. Harvat Hall, 410 E. Washington Street, Iowa City, Iowa, or if said meeting is cancelled, at the next meeting of the City Council thereafter as posted by the City Clerk; at which hearing the Council will consider: 1. A resolution to amend the comprehensive plan by amending the South Central District Plan to change the future land use map designation and plan text to the Aviation Commerce Park designation from Intensive Commercial to Retail/C .om mun_ii~_Comm ercial. ~ An ordinance cbnditionally changing~ zoning designation of approximately 54 acres from Public/Intensve Commercial (P/CI-1) zone to Community Commercial ~ (CC-2) zone for property located on ~ Copies of the proposed ordinances and resolutions are on file for public examination in the office of the City Clerk, City Hall, 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 June 7, 2005 Mayer, Brown, Rowe & Maw LIP 700 Louisiana Street Suite 3600 BY E-MAIL Houston, Texas 77002-2730 Main Tel (713) 221-1651 City of Iowa City, Iowa Main Fax (713) 224-6410 410 East Washington Street w. may~rown~ow~.c~ Iowa City, Iowa 52240-1826 Robert L aorgan Attention: Ernest W. Lehman, Mayor DirectTel (713) 546-0501 Direct Fax (713) 632-1801 Re: Purchase Agreement between the City of Iowa =o~a~oraye~we.~ City, Iowa, as "Seller," and Wal-Mart Real Estate Business Trust, as "Buyer" (by assignment from Price Properties), for approximately 21.76 acres of land (the "Property") in the City of Iowa City, Johnson County, Iowa; Store No. 1721 Ladies and Gentlemen: This firm represents Wal-Mart Real Estate Business Trust ("Wal-Mart") in the referenced matter, and this letter is written at the direction of and on behalf of Wal-Mart. By letter dated June 2, 2005, from Mitchell T. Behr, Esq., Assistant City Attorney for the City of Iowa City (the "City"), Wal-Mart has received a proposed "Conditional Zoning Agreement" (the "CZA") for the referenced Property, setting forth certain terms and conditions to the rezoning of Aviation Commerce Park to zone "CC-2," or Community Commercial Zone. A copy of the CZA is attached as Exhibit A hereto and incorporated herein by this reference. After consultation with Wal-Mart's engineering and architectural consultants for the Property, this letter is written to provide notice to the City that the terms and conditions of the CZA are acceptable to Wal-Mart, with the following qualifications or comments: 1. As to item 3B. of the CZA, relating to the requirement for sidewalks connecting the principal buildings on each lot with each other and to the sidewalk along Ruppert Road, Wal-Mart has advised the City that only one principal building will be situated on the site and thus there is no issue as to sidewalks to connect principal buildings. Additional discussions will need to be held between Wal-Mart's design consultants and the City's Director of Planning with respect to the Director's proposal for a possible pedestrian walkway running across the store parking lot (rather than or in addition to a sidewalk along the perimeter of the Property). 2. As to item 3D., and the stated improvements to the Ruppert Road/Riverside Drive intersection as therein referenced, it is Wal-Mart's understanding that its obligations with Berlin Brussels Charlotte Chicago Cologne Frankfurl Houston London Los Angeles New York Palo Alto Paris Washington, D.C. Independent Mexico City Correspondent: Jauregui, Navarrete y Nader S.C. May~r, Brown, Rowe & Maw LIP operstes in cornbina~on with our associated EngIish limited liability partnership in the offices listed above. Mayer, Brown, Rowe & Maw LLP City of Iowa City, Iowa June 7, 2005 Page 2 respect to any improvements proposed for the intersection of Ruppert Road with Riverside Drive will be limited to and governed by Wal-Mart's agreement to provide $100,000 toward the cost of off-site public improvements in accordance with Section 14G. (iii) of the referenced Purchase Agreement. Wal-Mart's obligations with respect to relocation of a portion of Ruppert Road, and improvements to the intersection of Ruppert Road with Iowa Highway I, are addressed in Sections 14.G.(i) and (ii) of the Purchase Agreement and will continue to apply. This letter is intended only to evidence Wal-Mart's acceptance of the CZA, subject to the qualifications hereinabove set forth, and consequently the satisfaction of the re-zoning condition set forth in Section 14B. of the Purchase Agreement. This letter does not constitute a commitment by Wal-Mart to purchase the Property or to construct a project thereon. Except as herein expressly provided with respect to the CZA, all conditions and contingencies to Wal- Mart's obligations under the Purchase Agreement shall remain in effect as therein provided. If there are questions or comments concerning the contents of this letter, please call or e-mail the undersigned at your convenience. Sincerely, Robert. L Morga~~ /sms Attachment: Exhibit A - copy of June 2, 2005, CZA cc: Brandi Lewis Adele Lucas Jason Price Joe Altenhoff 24554392.1 06-Jun-05 16:36 04339499 Prepared by: John Yapp, PCD, 410 E. Washington Street, Iowa City, IA 52240; 319.356.5247 (REZ05-00004) CONDITIONAL ZONING AGREEMENT THIS AGREEMENT is made by and between the City of Iowa City, Iowa, as Owner (hereinafter "Owner'), and the City of Iowa City, a municipal corporation and regulatory authority (hereinafter "City'), which expression shall include their successors in interest and assigns; and WHEREAS, the Owner is legal title holder of property generally located on the north side of the Iowa City Municipal Airport along Ruppert Road, known as Aviation Commerce Park; and WHEREAS, in recommending that Aviation Commerce Park be rezoned to Community Commercial, CC-2 zone, the Planning and Zoning Commission recommended conditions to ensure development is consistent with the retail commercial appearance and site design policies in the South Central District Plan; and WHEREAS, the conditions recommended by the Planning and Zoning Commission are related to landscaping, pedestrian connections, street infrastructure, and building design standards to facilitate reuse of large commercial structures and to moderate the sense of scale of large commercial structures; and WHEREAS, Iowa Code Section 414.5 (2005) provides that the City of Iowa City may impose reasonable conditions on granting a rezoning request, over and above existing regulations, in order to satisfy public needs that are directly caused by the requested change in zoning; and WHEREAS, the Owner agrees to use this property in accordance with the terms and conditions of a Conditional Zoning Agreement. NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties agree as follows: 1. The City of Iowa City is the owner and legal title holder of property legally described as follows: All of Lots 1-17, Outlot A, and a portion of Outlot C of the North Airport Development Subdivision recorded in Plat Book 43, Page 182, Johnson County Recorders office; which is a portion of the Northeast Quarter of Section 21 and the Southeast Quarter of Section 16, Township 79 North, Range 6 West of the Fifth Principal Meridian, Iowa City, Johnson County, Iowa, further described as follows: Beginning at the North Quarter Corner of Section 21; Thence N 00035'32" E 984.65 feet along the west line of the North Airport Development; Thence N 51 °23'44" E 59.53 feet to the Southwesterly Right of Way of Ruppert Road; Thence Northwesterly 77.16 feet along a curve, of the Ruppert Road Right of Way, with a radius of 409.92 feet, concave Northeasterly, a central angle of 10°47'06", and a chord 77.05 feet in length which bears N 36°11 '29" W; Thence N 38o44'54" W along said Right of Way 94.65 feet; Thence N 00035'32" E along said Right of Way 140.32 feet to the North line of the North Airport Development; Thence S 89°29'19" E along said North line 1041.99 feet; Thence N 89°41 '00" E along said North line 636.50 feet; Thence N 89°43'00" E along said North line 491.70 feet; Thence S 16o29'25" E along the East line of Lot 5, North Airport Development, 456.20 feet to the Southeast Corner of Lot 5; Conditional Zoning Agreement (REZ05-00004) Page 2 Thence S16°32'04" E 217.42 feet to the South line of the North Airport Development; Thence S 70°15'04" W along said South line 1033.22 feet; Thence S 73°19'46' W along said South line 1321.45 feet; Thence N 55°55'22" W 93.05 feet to a point on the West line of the Northeast Quarter of Section 21; Thence N 1°05'08" E 27.24 feet along the West line of the Northeast Quarter of Section 21 to the Point of Beginning. Said parcel contains 53.57 acres more or less. Lots 1-4 of the North Airport Development have been subdivided into the North Airport Development Part Two which is recorded in Plat 45 Page 91 of the Johnson County Recorders Office. 2. The Owner acknowledges that Iowa Code Section 414.5 (2005) provides that the City may impose reasonable conditions on granting a rezoning request, over and above the existing regulations, in order to satisfy, public needs caused by the requested change. 3. In consideration of the City's rezoning the subject property, the Owner agrees that development of the subject property will conform to all other requirements of the Zoning Chapter, as well as the following conditions: A. As part of the public improvements associated with the final plat, the construction plans will show sidewalks to be installed on Ruppert Road from Highway 1 south to the public sidewalks along Ruppert Road in the subject property, including a pedestrian crosswalk and pedestrian signals at the Ruppert Road/Highway 1 intersection. B. Pedestrian walkways will be provided to connect the principal buildings on each lot to each other and to the public sidewalk system, to be identified and reviewed as part of the site plan review process for each lot. C. Landscaping is required to separate and define parking and vehicular use areas from the public right-of-way. A landscaped area must be maintained in all areas not taken up by required paving or building area, with groupings of Iow-growing shrubs and ground plants to define spaces and soften views into and out of the area. Loading docks, outdoor storage of materials and dumpsters must be landscaped to be obscured from view from the public right- of-way. All other City tree and screening requirements in City Code must be met. A landscaping plan meeting these goals is required to be submitted and reviewed as part of the site plan review process for each lot. D. The preliminary plat and construction plans associated with the final plat will indicate necessary improvements to Ruppert Road, the Ruppert Road/Highway 1 intersection, and the Ruppert Road/Riverside Ddve intersection. E. In order to facilitate adaptive reuse of large retail commercial structures, to moderate the scale of large buildings, and to ensure a compatible appearance with other commercial shopping centers, any commercial structure over 50,000 square feet in size will comply with the following design standards: 1. Fa(;ades and extedor walls: a. For facades that face public streets and/or include public entrances, fac,,ades over 100 feet in length shall incorporate wall projections or recesses a minimum of three feet in depth for a minimum of 20 contiguous feet, within each 100 feet of fac,,ade length, and shall extend over a minimum of 20% of the fagade. No uninterrupted length or fa~de may exceed 100 feet. b. For fagades that face public streets or include public entrances, features such as arcades (a covered walkway or pedestrian corridor), display windows, entry areas, Conditional Zoning Agreement (REZ05-00004) Page 3 awnings, or similar features, must be used along at least 60% of the fagade. Display windows need not provide views into the store. 2. Detail features: Buildings shall include detail and features that provide visual interest, reduce the perception of the mass of the building, and provide a cohesive pattern to the building. The building fagade that faces a public street or includes a public entrance shall include no less than three of the elements listed below. At least one of these elements shall repeat horizontally. All these elements shall repeat at intervals of no more than 50 feet. It is encouraged that these visual pattems are cohesive with the articulation of the fa~de: a. Color change b. Texture change c. Material module change d. Expression of architectural or structural bay through a change in plane no less than 12 inches In width, such as an offset, reveal, or projection. 3. Roofs: Roofs shall have no less than two of the features listed below: a. Parapets concealing flat roofs and rooftop equipment, such as HVAC units from public view. The average height of such parapets shall not exceed 15% of the height of the supporting wall and at no point shall exceed one-third of the height of the supporting wall. Such parapets shall feature a cornice treatment. b. Overhanging eaves, extending no less than three feet past the supporting walls. c. Sloping roofs that do not exceed the average height of the supporting walls. d. Three or more roof slope planes, 4. Materials: a. The building materials shall be predominantly quality exterior building materials, including brick, masonry, stone, stucco, or textured concrete masonry units. "Predominantly" is defined as at least 75% of the exterior of the entire building, but not necessarily of each building wall. b. The following exterior building materials shall be used minimally or on 25% or less of the entire building but not necessarily on each building wall: i. Smooth-faced concrete block ii, Pre-fabricated steel or vinyl panels or sheets 5. Entryways: Each principal building shall have a clearly defined, highly visible customer entrance with no less than three of the features listed below. Where additional stores are located in the principal building, each store shall have at least one exterior customer entrance with no less than three of the following features: a. Canopy or portico b. Overhang c. Recess/projection Conditional Zoning Agreement (REZ05-O0004) Page 4 d. Arcade (a covered walkway or pedestrian corridor) e. Raised cornice parapet over the door f. Amhway g. Outdoor patio h. Display window i. Tile work and moldings that are integrated into the building structure and design j. Integral planters or wing walls that incorporate landscaped areas and/or places for sitting 4. The Owner acknowledges that the conditions contained herein are reasonable conditions to impose on the land under Iowa Code Section 414.5 (2005) and that said conditions satisfy public needs caused by the requested zoning change. 5. The Owner acknowledges that in the event the subject property is transferred, sold, redeveloped, or subdivided, all redevelopment will conform with the terms of this Conditional Zoning Agreement. 6. The Parties acknowledge that this Conditional Zoning Agreement shall be deemed to be a covenant running with the land and with title to the land, and shall remain in full force and effect as a covenant running with the title to the land unless or until released of record by the City. The Parties further acknowledge that this Agreement shall inure to the benefit of and bind all successors, representatives and assigns of the Parties. 7. The Owner acknowledges that nothing in this Conditional Zoning Agreement shall be construed to relieve the owner or future owners from complying with all applicable local, state, and federal regulations. 8. The Parties agree that this Conditional Zoning Agreement shall be incorporated by reference into the Ordinance rezoning the property; and that upon adoption and publication of the Ordinance, this Agreement shall be recorded In the Johnson County Recorder's Office at the City's expense. Dated this day of ,2005. CITY OF IOWA CITY AS OWNER By Ernest W. Lehman, Mayor Attest Marian K. Karr, City Clerk Approved by: City Attorney's Office Conditional Zoning Agreement (REZ05-O0004) Page 5 CITY OF IOWA CITY AS REGULATORY AUTHORITY AND MUNICIPAL CORPORATION By Ernest W. Lehman, Mayor Attest Marian K. Karr, City Clerk Approved by: City Attorney's Office CITY OF IOWA CITY ACKNOWLEDGEMENT: STATE OF IOWA ) ) SS: JOHNSON COUNTY ) On this day of , A.D. 20 , before me, the undersigned, a notary public in and for the State of Iowa, personally appeared Ernest W. Lehman and Marian K. Kart, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of said municipal corporation executing the within and foregoing instrument; that the seal affixed thereto is the seal of said municipal corporation; that said instrument was signed and sealed on behalf of said municipal corporation by authority of its City Council; and that the said Mayor and City Clerk as such officers acknowledged that the execution of said Instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. Notary Public in and for the State of Iowa My commission expires: CITY OF IOWA CITY ACKNOWLEDGEMENT: STATE OF IOWA ) ) ss: JOHNSON COUNTY ) On this day of , A.D. 20 , before me, the undersigned, a notary public in and for the State of Iowa, personally appeared Ernest W. Lehman and Marian K. Karr, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of said municipal corporation executing the within and foregoing instrument; that the seal affixed thereto is the seal of said municipal corporation; that said instrument was signed and sealed on behalf of said municipal corporation by authority of Its City Council; and that the said Mayor and City Clerk as such officers acknowledged that the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. Notary Public in and for the State of Iowa My commission expires: ppdadrn/ag~'CZA-REZOS-OOOO4,R EVISEO.dOC City of Iowa City MEMORANDUM Date: June 1, 2005 To: Karin Franklin, Director From: John Yapp, Associate Planner ~e,~/~'"' Re: Aviation Commerce Park Conditional Zoning Agreement (REZ05-00004) At your request I have made several modifications to the Conditional Zoning Agreement related to the Aviation Commerce Park rezoning from C1-1, Intensive Commercial to CC- 2, Community Commercial. These changes are to clarify points in the proposed design standards for 'big-box' retail buildings, and are in keeping with the recommendations made by the Planning and Zoning Commission: 1. In subsection 3C of the Conditional Zoning Agreement, the paragraph related to landscaping requirements has been amended to be more specific as follows: Landscaping is required to separate and define parking and vehicular use areas from the public fight-of-way. A landscaped area must be maintained is all areas not taken up by required paving or building area, with groupings of Iow-growing shrubs and ground plants to define spaces and soften views into and out of the area. Loading docks, outdoor storage of materials and dumpsters must be landscaped to be obscured from view from the public right-of-way. All other City tree and screening requirements in City Code must be met. A landscaping plan meeting these goals is required to be submitted and reviewed as part of the site plan review process for each lot. 2. In subsection 3E(lb), a sentence was added referring to display windows: Display windows need not provide views into the store. 3. In subsection 3E(lb) and 3E(5d), a parenthetical definition of arcade was added: Arcade (a covered walkway or pedestrian corridor). 4. In subsection 3E(4b), in the section referring to exterior building materials, language was added to clarify that 'minimally' means 25% or less of the building: The following exterior building materials shall be used minimally cron 25% or less of the entire building but not necessarily on each building wall. Cc: City Council Prepared by: John Yapp, PCD, 410 E. Washington Street, Iowa City, IA 52240; 319.356.5247 (REZ05-00004) CONDITIONAL ZONING AGREEMENT THIS AGREEMENT is made by and between the City of Iowa City, Iowa, as Owner (hereinafter "Owner"), and the City of Iowa City, a municipal corporation and regulatory authority (hereinafter "City"), which expression shall include their successors in interest and assigns; and WHEREAS, the Owner is legal title holder of property generally located on the north side of the Iowa City Municipal Airport along Ruppert Road, known as Aviation Commerce Park; and WHEREAS, in recommending that Aviation Commerce Park be rezoned to Community Commercial, CC-2 zone, the Planning and Zoning Commission'recommended conditions to ensure development is consistent with the retail commercial appearance and site design policies in the South Central District Plan; and WHEREAS, the conditions recommended by the Planning and Zoning Commission are related to landscaping, pedestrian connections, street infrastructure, and building design standards to facilitate reuse of large commercial structures and to moderate the sense of scale of large commercial structures; and WHEREAS, Iowa Code Section 414.5 (2005) provides that the City of Iowa City may impose reasonable conditions on granting a rezoning request, over and above existing regulations, in order to satisfy public needs that are directly caused by the requested change in zoning; and WHEREAS, the Owner agrees to use this property in accordance with the terms and conditions of a Conditional Zoning Agreement. NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties agree as follows: 1. The City of Iowa City is the owner and legal title holder of property legally described as follows: All of Lots 1-17, Outlot A, and a portion of Outlot C of the North Airport Development Subdivision recorded in Plat Book 43, Page 182, Johnson County Recorders office; which is a portion of the Northeast Quarter of Section 21 and the Southeast Quarter of Section 16, Township 79 North, Range 6 West of the Fifth Principal Meridian, Iowa City, Johnson County, Iowa, further described as follows: Beginning at the North Quarter Corner of Section 21; Thence N 00°35'32'' E 984.65 feet along the west line of the North Airport Development; Thence N 51 °23'44" E 59.53 feet to the Southwesterly Right of Way of Ruppert Road; Thence Northwesterly 77.16 feet along a curve, of the Ruppert Road Right of Way, with a radius of 409.92 feet, concave Northeasterly, a central angle of 10°47'06'', and a chord 77.05 feet in length which bears N 36°11 '29" W; Thence N 38°44'54" W along said Right of Way 94.65 feet; Thence N 00o35'32'' E along said Right of Way 140.32 feet to the North line of the North Airport Development; Thence S 89°29'19'' E along said North line 1041.99 feet; Thence N 89°41'00" E along said North line 636.50 feet; Thence N 89043'00'' E along said North line 491.70 feet; Thence S 16°29'25'' E along the East line of Lot 5, North Airport Development, 456.20 feet to the Southeast Corner of Lot 5; Thence S16°32'04'' E 217.42 feet to the South line of the North Airport Development; Thence S 70°15'04" W along said South line 1033.22 feet; Thence S 73°19'46' W along said South line 1321.45 feet; Conditional Zoning Agreement (REZ05-00004) Page 2 Thence N 55°55'22" W 93.05 feet to a point on the West line of the Northeast Quarter of Section 21; Thence N 1°05'08'' E 27.24 feet along the West line of the Northeast Quarter of Section 21 to the Point of Beginning. Said parcel contains 53.57 acres more or less. Lots 1-4 of the North Airport Development have been subdivided into the North Airport Development Part Two which is recorded in Plat 45 Page 91 of the Johnson County Recorders Office. 2. The Owner acknowledges that Iowa Code Section 414.5 (2005) provides that the City may impose reasonable conditions on granting a rezoning request, over and above the existing regulations, in order to satisfy public needs caused by the requested change. 3. In consideration of the City's rezoning the subject property, the Owner agrees that development of the subject property will conform to all other requirements of the Zoning Chapter, as well as the following conditions: A. As part of the public improvements associated with the final plat, the construction plans will show sidewalks to be installed on Ruppert Road from Highway 1 south to the public sidewalks along Ruppert Road in the subject property, including a pedestrian crosswalk and pedestrian signals at the Ruppert Road/Highway 1 intersection. B. Pedestrian walkways will be provided to connect the principal buildings on each lot to each other and to the public sidewalk system, to be identified and reviewed as part of the site plan review process for each lot. C. Landscaping is required to separate and define parking and vehicular use areas from the public right-of-way. A landscaped area must be maintained in all areas not taken up by required paving or building area, with groupings of Iow-growing shrubs and ground plants to define spaces and soften views into and out of the area. Loading docks, outdoor storage of materials and dumpsters must be landscaped to be obscured from view from the public right- of-way. All other City tree and screening requirements in City Code must be met. A landscaping plan meeting these goals is required to be submitted and reviewed as part of the site plan review process for each lot. D. The preliminary plat and construction plans associated with the final plat will indicate necessary improvements to Ruppert Road, the Ruppert Road/Highway 1 intersection, and the Ruppert Road/Riverside Ddve intersection. E. In order to facilitate adaptive reuse of large retail commercial structures, to moderate the scale of large buildings, and to ensure a compatible appearance with other commercial shopping centers, any commercial structure over 50,000 square feet in size will comply with the following design standards: 1. Facades and exterior walls: a. For facades that face public streets and/or include public entrances, facades over 100 feet in length shall incorporate wall projections or recesses a minimum of three feet in depth for a minimum of 20 contiguous feet, within each 100 feet of fa(;ade length, and shall extend over a minimum of 20% of the fa~;ade. No uninterrupted length or fa(;ade may exceed 100 feet. b. For fac.:,ades that face public streets or include public entrances, features such as arcades (a covered walkway or pedestrian corridor), display windows, entry areas, awnings, or similar features, must be used along at least 60% of the fa(;ade. Display windows need not provide views into the store. 2. Detail features: Buildings shall include detail and features that provide visual interest, reduce the perception of the mass of the building, and provide a cohesive pattern to the building. The building fa(;ade that faces a public street or includes a public entrance shall include no less than three of the elements listed below. At least one of these elements shall repeat horizontally. All these elements shall repeat at intervals of no more than 50 feet. It is encouraged that these visual patterns are cohesive with the articulation of the fa(;ade: a. Color change b. Texture change c. Material module change d. Expression of architecturel or structural bay through a change in plane no less than 12 inches in width, such as an offset, reveal, or projection. 3. Roofs: Roofs shall have no less than two of the features listed below: a. Parapets concealing flat roofs and rooftop equipment, such as HVAC units from public view. The average height of such parapets shall not exceed 15% of the height of the supporting wall and at no point shall exceed one-third of the height of the supporting wall. Such parapets shall feature a cornice treatment. b. Overhanging eaves, extending no less than three feet past the supporting walls. c. Sloping roofs that do not exceed the average height of the supporting walls. d. Three or more roof slope planes. 4. Materials: a. The building materials shall be predominantly quality exterior building materials, including brick, masonry, stone, stucco, or textured concrete masonry units. "Predominantly" is defined as at least 75% of the exterior of the entire building, but not necessarily of each building wall. b. The following extedor building materials shall be used minimally or on 25% or less of the entire building but not necessarily on each building wall: i. Smooth-faced concrete block ii. Pre-fabricated steel or vinyl panels or sheets 5. Enttyways: Each principal building shall have a clearly defined, highly visible customer entrance with no less than three of the features listed below. Where additional stores are located in the principal building, each store shall have at least one exterior customer entrance with no less than three of the following features: a. Canopyor portico b. Overhang c. Recess/projection d. Arcade (a covered walkway or pedestrian corridor) Conditional Zoning Agreement (REZ05-00004) Page 4 e. Raised cornice parapet over the door f. Archway g. Outdoor patio h. Display window i. Tile work and moldings that are integrated into the building structure and design j. Integral planters or wing walls that incorporate landscaped areas and/or places for sitting 4. The Owner acknowledges that the conditions contained herein are reasonable conditions to impose on the land under Iowa Code Section 414.5 (2005) and that said conditions satisfy public needs caused by the requested zoning change. 5. The Owner acknowledges that in the event the subject property is transferred, sold, redeveloped, or subdivided, all redevelopment will conform with the terms of this Conditional Zoning Agreement. 6. The Parties acknowledge that this Conditional Zoning Agreement shall be deemed to be a covenant running with the land and with title to the land, and shall remain in full force and effect as a covenant running with the title to the land unless or until released of record by the City. The Parties further acknowledge that this Agreement shall inure to the benefit of and bind all successors, representatives and assigns of the Parties. 7. The Owner acknowledges that nothing in this Conditional Zoning Agreement shall be construed to relieve the owner or future owners from complying with all applicable local, state, and federal regulations. 8. The Parties agree that this Conditional Zoning Agreement shall be incorporated by reference into the Ordinance rezoning the property; and that upon adoption and publication of the Ordinance, this Agreement shall be recorded in the Johnson County Recorder's Office at the City's expense. Dated this day of ., 2005. CITY OF IOWA CITY AS OWNER By Ernest W. Lehman, Mayor Attest Marian K. Karr, City Clerk Approved by: _ ~ C i (y'A~tt o r'l~e ~' s'~O ffi c~ Conditional Zoning Agreement (REZ05-00004) Page 5 CITY OF IOWA CITY AS REGULATORY AUTHORITY AND MUNICIPAL CORPORATION By Ernest W. Lehman, Mayor Attest Marian K. Karr, City Clerk Approved by: /¢_.-__ City Attsrney's 0~ce CITY OF IOWA CITY ACKNOWLEDGEMENT: STATE OF IOWA ) ) SS: JOHNSON COUNTY ) On this day of ., A.D. 20 , before me, the undersigned, a notary public in and for the State of Iowa, personally appeared Ernest W. Lehman and Marian K. Karr, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of said municipal corporation executing the within and foregoing instrument; that the seal affixed thereto is the seal of said municipal corporation; that said instrument was signed and sealed on behalf of said municipal corporation by authority of its City Council; and that the said Mayor and City Clerk as such officers acknowledged that the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. Notary Public in and for the State of Iowa My commission expires: CITY OF IOWA CITY ACKNOWLEDGEMENT: STATE OF IOWA ) ) SS; JOHNSON COUNTY ) On this day of ., A.D. 20 , before me, the undersigned, a notary public in and for the State of Iowa, personally appeared Ernest W. Lehman and Marian K. Karr; to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of said municipal corporation executing the within and foregoing instrument; that the seal affixed thereto is the seal of said municipal corporation; that said instrument was signed and sealed on behalf of said municipal corporation by authority of its City Council; and that the said Mayor and City Clerk as such officers acknowledged that the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. Notary Public in and for the State of Iowa My commission expires: ppdadm/agt/CZA-REZ05-00004(60).doc / Page 1 of 1 Marian Karr From: PamLandgrebe@aol.com Sent: Thursday, June 02, 2005 9:52 AM To: councit@iowa-city.org Subject: Walmart and 21 ordinance We are writing to express our opposition to the proposed construction of Superwalmart in Iowa City. We have several concerns with this corporation but, primarily, we have concerns regarding Walmart's Iow wages, lack of job benefits and long-term discouragement of labor unions. We are also writing to support an ordinance which would prohibit anyone younger than 21 years of age from entering a drinking establishment in downtown Iowa City. The Iowa City downtown late night scene is dangerous for our youth and our safety officers. As consumers we avoid shopping in the downtown area (due to trash, filth) after a weekend evening and we are usually enthusiastic supporters of the retail and restaurant businesses in the downtown area. As leaders of our community, it is our responsibility to provide a roadmap which facilitates positive growth in our young people. Randy and Pam Landgrebe 6/2/2005 Marian Karr From: the3rdiowa@mchsi.com Sent: Thursday, June 02, 2005 11:09 AM To: council@iowa-city.org Subject: NN planners discuss rezoning for new Wal-Mart This story was sent to you by: Garry Klein NN planners discuss rezoning for new Wal-Mart BY FRED CARROLL 247-4756 June 1 2005, 5:39 PM EDT NEWPORT NEWS -- The Newport News Planning Commission is scheduled to consider a rezoning request today that would allow Wal-Mart to open a store on Hampton Roads Center Parkway. The Planning Commission makes recommendations to the City Council, which ultimately will decide whether to rezone the property. The council is scheduled to vote during a June 28 meeting. City planners said the commission might delay making its recommendation until a later meeting. A Wal-Mart spokeswoman has said the store would ease long checkout lines at existing stores in Newport News and York County. The proposed store would include a grocery and gas pumps. Some residents oppose the rezoning, worrying about the additional noise and traffic the store will bring to their neighborhoods. The meeting began at 2 p.m. in council chambers beside City Hall, 2400 Washington Ave. Copyright (c) 2005, Daily Press Marian Karr From: the3rdiowa@mchsi.com Sent: Thursday, June 02, 2005 11:25 AM To: council@iowa-city.o~ Su~ect: Note from Gar~ Klein Hi City Council, Garry Klein stopped by The Record Eagle and suggested that you visit the following URL: http://www.record-eagle.com/2OO5/may/O8wally.htm Here is his or her message .... For Your Information. Garry Klein The Record Eagle Hope you find the information you need at our website! http://www.record-eagle.com/ Wal-Mart sizing up Manistee Page 1 of 3 IRAVE~E CITY ON LIN E EDYr ION 76°F Partly cloudy Ho NORTHERN MICHIGAN'S NEWSPAP£R Sear Maps & Links SECTIONS ~ ~' -- ' ..................... "-=::=: .............. Home page r~ Printer Friendly Versk Business [] Email Story to a Frien Health Local News [] Subscribe National News May 8, 2005 Northern Living Obituaries Opinion Photography Sports SPECIAL SECTIONS Baby Album Boat Show Coupons Golf Guide Health I o888-JEN-1 Home Expo Home - Winter Home & Garden Outlook Spring Fever CLAS$IFIEI Summer Guide Main page Automotive I Employmer Wedding Real estate I Rentals More sections Record-Eagle/Lira Neel Some owners worry that business on River Street in Manistee SEARCH FEATURES will suffer if a Wal-Mart is built. ARCHIVES: Births Calendar of Events ComicsC°lumnistsWal/Mart sizing up Manistee ,.E WE.: Food Games Local reaction is mixed Guestbook Lottery YELLOW PAGES: Movie Listings By PATRICK SULLIVAN Record-Eagle staff writer News. in Education TV listings MANISTEE - Wal-Mart Stores Inc. will go ahead with plans to WHITE PAGES: First Name DIRECTORIES locate a store in Manistee, even after the company backed off a I Arts&Entertainment move to rezone part of Filer Township for a supercenter parking ILast Name Autos lot last week. I Builders "1 can tell you that, at this point, we are obviously doing more Dining than evaluating the market," said Roderick Scott, a Wal-Mart Golf Lodging community affairs manager. Vacation Rentals Scott said the company is looking for a store site, but declined Mortgages to offer details. Realty Agents Officials in Manistee and Filer Township said WabMart's most Summer http://www.record-eagle.com/2OO5/may/Ogwally.htm 6/2/2005 Wal-Mart sizing up Manistee Page 2 of 3 TraverseCityShops recent idea was to locate a store just inside city limits with a TraverseGuide.com parking lot located in the township. Wine Winter But city manager Mitch Deisch said Wal-Mart has not submitted a plan to the city. SERVICES James Espvik, Filer Township supervisor, confirmed that Wal- About Us Mart's plan was to open a "supercenter" just over the township Advertisers-Online Advertising Info line and to locate the parking lot in the township. contact us On Monday, an engineering firm rescinded a request to Request Online Advertising Info rezone the property from residential to commercial for the parking Staffdirectory lot, Espvik said. Subscribe Website Design Jori Rose, community development director for the city, said Yellow Pages Your lawmakers the city lot under consideration is zoned "highway commercial," and could be used for a big box store with a vote from the ~ planning commission - and without a public hearing. Member of But the city is considering rezoning based on a new master Real Cities Network plan that could require a special use permit for large retailers. The city council has yet to adopt any new requirements, but new zoning could be in effect by fall, Rose said. Wal-Mart spokesman Scott would not get into specifics about when a proposal could be made, but the company has been at work behind-the-scenes for months. Both Deisch and Espvik said they met with an engineering firm representing Wal-Mart this year. Both said the meeting was not an attempt to do public business away from the public eye. "We have meetings with developers all the time ... as does every other community across the state of Michigan," Deisch said. Espvik said the representative described a store with square footage of 150,000 to 160,000, indicating they planned to build a "supercenter" rather than an ordinary Wal-Mart. "It was an informational meeting as to the process they had to go through," Espvik said. "They didn't give us a whole lot of information." Dana Schindler, former Filer Township supervisor, said she was approached in 2004 and asked to take part in a private meeting with Wal-Mart. She said she refused to attend the meeting. "1 said, you know, if there is a proposal, then it needs to be put before the planning commission," Schindler said. "All I could see was an attempt to grease the skids and get township approval." Both Deisch and Espvik said no decisions were made in the private meeting and that once Wal-Mart applies for rezoning or for site plan approval, the process would be public. The prospect of the gigantic, price-slashing retailer moving to town worries some local business owners, but no organized opposition to Wal-Mart has yet cropped up in Manistee. Liz McClellan, owner of Alex Doucett's on River Street, a shop of upscale items for the home, said she doesn't believe Wal-Mart would be a competitor, but she believes it would hurt downtown because it would compete with dollar stores and other Iow-end retailers. Anyway, she said, if someone wants to shop at Wal-Mart, they can make the 30-minute drive to Ludington. http://www.record-eagle.com/2OO5/may/OSwally.htm 6/2/2005 Wal-Mart sizing up Manistee Page 3 of 3 "Do they have to have one every twenty miles.'? People who would shop at Wal-Mart are already shopping at Wal-Mart," McClellan said. Jason Carey, owner of Carey's Men's and Women's Shoes on River Street, plans to attend any public meetings to oppose Wal- Mart. "1 honestly don't want it, I think there's a lot of people that don't. I think it would hurt River Street," Carey said. Carey said he sells brand-name clothes shoppers wouldn't find at Wal-Mart, but he fears the store could further undermine River Street as a shopping destination for local people. Carey believes he is already fighting that perception. "Locals don't see River Street as a place to shop," he said. But many residents say they would welcome Wal-Mart. Sheree Frost, who lives near Thompsonville, spent a recent Saturday at the Kmart parking lot in Filer Township selling doughnuts to raise funds for a youth missionary trip. She said she drives to Traverse City to shop and would consider Manistee if a Wal-Mart opened there. 'Tm a single mom of two, and prices are Iow, and it helps with everything, with the food and the clothing," Frost said. Kim Kogle, of Manistee, is excited a Wal-Mart could move to Manistee. "1 think it's wonderful, absolutely wonderful. You are asking the right person," said Kogle, who often shops at the Wal-Mart in Ludington, where her cleaning business takes her several times a week. "We just make it our stop, both for groceries and everything else we need," Kogle said. Wal-Mart backed off plans in May 2004 to open a supercenter in Charlevoix Township amid strong opposition by residents who feared the behemoth would harm the area's small-town character. A citizen group formed to rally against Wal-Mart and sponsored a forum that attracted around 100 people. Wal-Mart spokesman Scott said public opposition will not necessarily stop Wal-Mart. "For the most part, that is a small minority of individuals in the community," Scott said. "Usually, the stores where we have the most opposition, we have the most successful stores." © 1998-2005 Traverse City Record-Eagle Record-Eagle.com home I GTHerald.com I RecordEagle.net I TraverseBiz,com I TraverseGuide.com RecordEagleJOBS.com I RecordEagleREALESTATE.com I RecordEagleAUTOS.com http://www.record-eagle.com/2OO5/may/O8wally.htm 6/2/2005 Marian Karr From: the3~iowa@mchsi.com Sent: Thursday, June 02, 2005 11:24 AM To: council@iowa-ci~.org Subject: WaI-Ma~ seeks to expand This story was sent to you by: Garry Klein Wal-Mart seeks to expand BY FRED CARROLL AND ANGELA FOREST 247-7863 fcarroll@dailypress.com 247-4756 May 26 2005 NEWPORT NEWS -- Thirty acres of woods might disappear soon in central Newport News - cleared for the lower Peninsula's fourth Wal-Mart. Loyal customers will welcome the potential opening of a Wal-Mart with a grocery and gas pumps on Hampton Roads Center Parkway since it should ease crowded checkout lines at existing stores in Newport News and York County. Rhoda Washington, a Wal-Mart spokeswoman, said she couldn't estimate when the store might open given the need to satisfy various regulations. She said the company could better serve its customers with a new store that would relieve other stores and provide another convenient location. "We've determined this region could support another store," Washington said. But some neighbors expect the world's largest retailer to bring headaches along with its discounted prices on coffeemakers and televisions. They worry about a big retail store being built so close to their houses, about more cars and trucks on nearby streets and about losing the peace and quiet that comes with wooded seclusion. "We shop there and get great bargains," said Dawn Ritton, a nearby resident who lives off Harpersville Road. "It's a matter of how many do we need." Wal-Mart must clear several regulatory hurdles before it buys the land owned by the Abbitt and West families. The city's Planning Commission must agree to rezone the land since only apartments and houses can be built there. A city plan that guides future development has recommended changing that zoning to allow such things as grocery stores, movie theaters and retail stores that draw customers from other neighborhoods. The city's Planning Department supports the rezoning because of that prior recommendation, said Susan Kassel, city planner. Also, she said Wal-Mart has promised additional landscaping to separate it from nearby residents. Wetlands, landscaping and a stormwater pond would take up about one-third of the store site. The store would have one entrance on a section of the Hampton Roads Center Parkway that handles about 24,400 cars and trucks each day.. Mostafa Sabbah, city engineering director, said the parkway as well as two roads - ! Harpersville Road and Terrace Drive - could readily handle the additional traffic created by customers. The City Council, which has the final say on zoning matters, is scheduled to vote on the issue during a June 28 meeting. Newport News officials said Wal-Mart must also get approvals from the Virginia Department of Transportation for roadwork related to its entrance and from the Army Corps of Engineers because some construction would occur on wetlands. Wal-Mart openings have sometimes created controversy by threatening small businesses that struggle to compete against its lower prices. Several residents wondered what might happen to the nearby Game's Farmer's Market, which local grocer Earl Game has owned since 1972. Game could not be reached for comment. City officials don't expect the two businesses to compete directly, saying Game offers items and service his customers don't find elsewhere. Copyright (c) 2005, Daily Press Marian Karr From: Garry Klein [the3rdiowa@mchsi.com] Sent: Thursday, June 02, 2005 11:13 AM To: City Council Subject: *** Detected as Spam *** From A Friend: 'nbc6.net- News -Wal-Mart 'Turf War' Continues In Broward County' Garry Klein has sent you a story: "nbc6.net - News - Wal-Mart 'Turf War' Continues In Broward County" the link: http://www.nbc6.net/news/4559297/detail.html Message from Garry Klein: For Your consideration. nbc6.net - News - Wal-Mart 'Turf War' Continues In Broward County Page 1 of 2 Search J Food And RecipesIRea EstateffiHouse And HomeffiDatingffiEducation ConnectionffiGetawaysffitocal JobsffiTechn°l°gvl e slWeatherlHurricanesITraffic SportsIHea th Co.necUonlCons.m ConnecUonlNBC e ZnvesUgate lcom Government & PoliticsRFamily FirstRShoppingRAutom°tiveRClinical ResearchRYe ow PagesRWeddingsRLegal Cente . MORE L0~ gb~ [ NEWS ~ Email This Sto~ I Print This Story Wal-mart 'Turf War' Continues In Broward County Wot In Our Back Yard,' Residents ~a~ POSTED: 9:39 am EDT June 2, 2005 ~ UPDATED: 10:54 am EDT June 2, 2005 ~I~R~ FI~. -- WaI-Ma~, one of the nation's largest retailers, wants to open a new superstore in Miramar. But area residents are vehemently opposed to the plan. FeedRoom ~ The Story In Pictures: Residents Say 'No' To WaI-Ma~ On Wednesday, city SURVEY commissioners held a preliminary hearing to Would you oppose or determine whether to welcome a Wal-Mart in change zoning on 29 your neighborhood? ~ Residents Oppose acres near ~Jramar ~ Oppose Wal-Na~ Parkway and Flamingo ~N~ 6 ~m Road to allow the retailer C Welcome to move into the city. C Hakes no difference to me Outside Miramar City Hall, cries of"Hey, hey, no, no, super Wal-mart has to gol" could be heard as area residents turned out wearing T-shi~s and car~Jng Results I Disclaimer signs opposing the proposed Wal-Na~ super center. Opponents argue the Wal-mart will bring traffic and crime to the area and decrease prope~y value. "Anybody who wants to go to Wal-Na~, there is one within 5 to 10 minutes away," said one resident. '%o we feel that we don't need it here Jn our area. We need something a little bit more conducive to our community." "I would not be giving yOU a fair answer if I said that Jt doesn't matter to me what the residents say," said Miramar Mayor LorJ Noseley. "Of course it matters what the residents say. But on the flipsJde, I have to make decisions that are http://www.nbc6.net/news/4559297/detail.html 6/2/2005 nbc6.net - News - Wal-Mart 'Turf War' Continues In Broward County Page 2 of 2 legally binding also." The mayor said she welcomes the input. She said she is taking the residents' concerns seriously and wants a close study of the issue. "There are some questions T haven't had answered, such as the impact on traffic, crime and property values," she said. Meanwhile, commissioners agreed 4 to i to postpone a scheduled June 15 vote on the zoning change. The mayor said many families may be out of town for summer vacations and would not be available to stay involved in the process. The final vote on the rezoning issue has been set for Sept. 7. Commissioner said they will take testimony and give residents a chance to give their input at that time. Previous Stories: · May 11, 2005: Miramar Residents Protest Proposed Wal-Mart Copyright 2005 by NBC6~net. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. /mo, Mortgage Rat Hit Reco Lows! Click ¥oar Current Rate >,:> Click here f~ r;71 Email This Story I ~ print This Story Get RSS Feeds ~ © 2005, Internet Broadcasting Systems, Inc. Click here for the privacy policy, terms of use. Click here for advertising information. Site Map http://www.nbc6.net/news/4559297/detail.html 6/2/2005 Marian Karr From: the3rdiowa@mchsi.com Sent: Thursday, June 02, 2005 11:10 AM To: council@iowa-city.org Subject: Faceoff on Wal-Mart This stery was sent te you by: Garry Klein Faceeff en Wal-Hart A Newpert News neighberheod must wait until July 20 to find out if a city cemmission supperts a new Wal-Hart. BY FRED CARROLL 247-4756 June 2 2005 NEWPORT NEWS -- Wal-Mart representatives talked Wednesday about how the world's largest retailer wants to become just another part of a Newport News neighborhood, while residents there talked about how a proposed store would ruin their community. The company offered extra landscaping to keep the store farther from neighbors, road improvements to avoid traffic tie-ups and a building designed more attractively than older stores. "We have looked at this location as being a gateway into your city," said Thomas Kleine, a lawyer for Wal-Mart. But about 30 residents doubted such work could eliminate their concerns about traffic snarls, trash, noise and losing trees to asphalt pavement. Also, they wondered whether promises for things like more landscaping might disappear in the years after construction. "Everything looks good on a piece of paper," said resident Mary Lenix. The Planning Commission listened for more than three hours during a public hearing before delaying a decision on rezoning a wooded 30-acre site on Hampton Roads Center Parkway near Harpersville Road. The debate largely focused on what the company wants to build - an around-the-clock Wal- Mart with a grocery, pharmacy, auto service center and gas pumps. But residents vented a frustration heard across the Peninsula by people who remember the area's rural days, when shopping centers and corporate chains weren't found at nearly every major intersection. The lower Peninsula already has three Wal-Mart stores, leading many residents to ask why another one was needed at all, let alone in their neighborhood. A Wal-Mart spokeswoman has said the company expects the new store to ease crowding at existing stores in Newport News and York County. Another store is in Hampton. Commission Chairman William Cowardin cautioned residents against opposing Wal-Mart without considering what else could go on the property. For example, he said a developer could build up to 720 housing units on the land without additional city zoning approvals. "Those are things the Planning Commission balances," Cowardin said. "We always have to consider what else could go there." Planning commissioners will meet again on the rezoning request during a July 20 meeting. Ultimately, the City Council decides whether the rezoning is granted. Commissioners asked if Wal-Mart could reduce its parking lot - from 1,010 to 815 spaces - to better buffer neighbors. They wondered how late trucks would deliver merchandise to the store. Meanwhile, city engineers will conduct more detailed traffic studies in the area since many residents questioned the accuracy of a study done by a consultant hired by Wal-Mart. The study indicated that about 70 percent of the store's traffic would come from Hampton on the Hampton Roads Center Parkway or from Jefferson Avenue on Harpersville Road. Residents doubted those estimates and worried the store will worsen existing traffic congestion on Terrace Drive and the two-lane section of Harpersville Road. In particular, more traffic bothers grocer Earl Game, who has operated a nearby store for more than 30 years. Some older customers already shop there only during midday hours to avoid traffic hassles. Game expects additional traffic problems to hinder his business if Wal-Mart opens. He also expects the company's nearness and low prices to erode his customer base, even though city officials don't expect the two stores to compete directly since Game offers specialty items and service. "It's going to close me up in the long run," Game said. Copyright (c) 2005, Daily Press Marian Karr From: toddkrus@avalon.net Sent: Tuesday, June 07, 2005 9:26 AM To: cou ncil@iowa-city, org Subject: Wal-Mart I just wanted to say that the few passionate people that show up to your council meetings do not represent the majority of Iowa City citizens' feelings on Wal-Mart. I am sure these people feel that most citizens agree, as they have surrounded themselves with like minded people, so it appears that most everyone shares their opinion. A recent letter-to- the-editor in the Daily Iowan (7 Jun 05) has motivated me to write, not so much in support of Wal-Mart, but in disagreement with the letter writer's assertion that most people in Iowa City share that opinion. I happened to catch a bit of the city council's meeting on television when this very subject was being discussed. I felt reassured by the majority council's stand on the situation, and particularly Ross Wilburn, that the council not be swayed by political agenda's and consistently apply standards and consideration of the past to Wal-Mart. To me, that is a significant role of government officials. To up-hold standards and policy, consistently and only deviate in extreme situations, which I think most would feel this is not. Thank you for you time. Todd R Kruse Iowa City, IA NOTICE OF PUBLIC HEARING Notice is hereby given that the City Council of Iowa City will hold a public hearing on the 17th day of May, 2005 at 7:00 p.m. in the Emma J. Harvat Hall of the Iowa City City Hall, 410 E. Washington Street, Iowa City, Iowa or if said meeting is cancelled, at the next meeting of the City Council thereafter as posted by the City Clerk; at which hearing the Council will consider an Ordinance Repealing City Code Title 12, Chapter 4 entitled Broadband Telecommunications Franchise Enabling Ordinance and Adopting a New Chapter 4. Copies of the proposed ordinance are on file for public examination in the office of the City Clerk, City Hall, Iowa City, Iowa. The ordinance is also available online at www.citycham~el4.com/franchise.html. 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 2005 FRANCHISE AGREEMENT BETWEEN THE CITY OF IOWA CITY AND MCC IOWA LLC (MEDIACOM) Page 1 of 47 TABLE OFCONTENTS I. NONEXCLUSIVE FRANCHISE ............................................................. 1 II. GtlANTED TO MCC IOWA LLC ............................................................ 1 III. RIGHT OF CITY TO ISSUE FRANCHISE ................................................ 2 IV. TERM ............................................................................................. 2 V. FRANCHISE NONEXCLUSIVE .............................................................. 2 VI. DEFINITIONS .................................................................................. 2 VII. SERVICE AREA .................................................................................................. 2 VIII. SYSTEM AND CAPACITY ............................................................................................ 3 IX. CONSTRUCTION .............................................................................. 7 X. SYSTEM SERVICES .............. ~ .............................................................................. 7 XI. ACCESS CHANNELS, EQUIPMENT, FACILITIES, AND SERVICES ............................................................................................ 8 XII. INTERCONNECTION ....................................................................... 11 XIII. SUBSCRIBER INFORMATION AND POLICY ........................................ 12 XIV. NON-DISCRIMINATION .................................................................. 14 XV. RATES ................................................................................................. 14 XVI. FRANCHISE RENEWAL ................................................................... 14 XVII. POLICE POWERS....., ..................................................................... 14 XVIII. FRANCHISE FEE AND PERFORMANCE BOND .................................. 14 XIX. REGULATION ................................................................................ 15 XX. REMEDIES ..................................................................................... 15 XXI. COOPERATION ..................................................................................... 16 Page2of47 XXII. WAIVER .............................................................................................. 16 XXIII. CUMULATIVE PROVISION ........................................................................................... 17 XXIV. NO LIABILITY .......................................................................................... 17 APPENDICES A. General System Design Specifications B. Drop Technical parameters C. Delivery system equipment list D. Test equipment available to Iowa City within 24 hours E. Preventative maintenance program F. Franchisee's construction manual G. Cutover process H. Programming categories I. Free drop locations J. Access channel placement K. Access publicity L. Business and repair hours Page 3 of 47 BROADBAND TELECOMMUNICATIONS FRANCHISE AGREEMENT I. NONEXCLUSIVE FRANCHISE A. This section grants a thirteen-year nonexclusive Franchise to operate a cable television system to MCC Iowa LLC (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 and the Telecommunications Act o£ 1996, 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 MCC Iowa LLC A. Purpose. The purpose of this section is to award a Franchise, for a cable television system to MCC Iowa LLC. Franchisee 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 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 Page 4 of 47 the Mayor to provide such written acceptance. Immediately upon the taking effect of this Franchise Agreement, the prior franchise granted to MCC Iowa LLC 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, all4ys, 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 FRANCHISE. 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 thirteen (13) 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. V. FRANCHISE NONEXCLUSIVE. Consistent with the requirements of the Ordinance, this Franchise shall not be construed as any limitation upon the right of the City 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. VII. SERVICE AREA. Page 5 of 47 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 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 1/4 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. 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 Page 6 of 47 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. SYSTEM AND CAPACITY. A. System. The parties understand and agree that Franchisee shall construct a cable system which delivers cable television signals processed at 750 MHz utilizing a fiber to the node design or better. The system will be designed so that there are no more than five (5) amplifiers in cascade. Fiber optic receiver nodes loc~ited throughout the plant will divide the distribution of cable signals to an average of 500 homes per fiber node or less. Further, Franchisee will provide 5-40 MHz upstream from each fiber node. The system shall be constructed and operated 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. B. Construction Timetable. If the Franchisee upgrades or rebuilds its system, the Franchisee shall notify the City of the extent and duration of construction. Two months prior to the initiation of construction of any system-wide upgrade or 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. After any upgrade or rebuild, Franchisee will inspect 100% of all fiber and coaxial cable to insure that it meets the specifications of the Ordinance and this Franchise and Franchisee will inspect and audit 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 any upgrade or rebuild and provide the City with the person's name and telephone number. Page 7 of 47 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. Drops. All drops not meeting the standards of the National Electric Safety 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. Services, Equipment and Facilities. Up to one year after new cable services, equipment, and/or facilities are offered by Mediacom Communications Corporation or its subsidiaries in: the City of Ames, Iowa; municipalities served by the same headend as Iowa City; municipalities served by the headend in Mason City; or municipalities served by the headend in Fairfield, excluding experimental and demonstration projects, Franchisee shall make new services, equipment and/or facilities available to all subscribers requesting such level of service. Such new services, equipment and/or facilities 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 Mediacom Communications Corporation or its subsidiaries in: the City of Ames, Iowa; municipalities served by the same headend as Iowa City; municipalities served by the headend in Mason City; or municipalities served by the headend in Fairfield. If the Franchisee believes that any such state-of-the- art features will not generate a reasonable rate of return over the remaining term of the Franchise Agreement; the Franchisee may request the City to relieve the Franchisee of such requirement. The City shall determine, taking cost, rate of return and rates into consideration, whether the Franchisee should be relieved of the requirement or whether the Franchisee can reasonably expect a reasonable return on investment during the ~emaining term of the Franchise Agreement and should provide such state-of-the-art feature. Franchisee shall be given an opportunity to present information to the City Council prior to a decision being made. Notwithstanding the above, no requirement to provide telephone service shall be required by this Section. 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, as needed, for subscribers not utilizing converters. The City Council may, in its discretion, extend the time for the Franchisee, acting in good faith, to provide new services, equipment and/or facilities. The timeframe for providing new services, equipment and/or facilities 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. Page 8 of 47 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 (1/2) MHz in either direction, to allow the City to collect data and other signals from subscriber homes or City sites for non-commercial governmental and educational purposes only. Franchisee shall cooperate with the City on pilot projects and Citywide 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, local emergency alert system for use by the City if the City has filed all necessary plans required by state and federal emergency management agencies. Emergency messages can be initiated from any touch-tone phone with an access code. 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 D, attached hereto and incorporated by reference. K. Ongoing Preventive Maintenance. Franchisee will comply with the preventive maintenance program specified in Appendix E, attached hereto and incorporated by reference. L. Interference on Channel 19. Franchisee will not use Channel 19 for video, but for alphanumeric purposes, to avoid interference from radio/pagers. 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 Page 9 of 47 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 Associatioffs 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. IX. CONSTRUCTION. A. System Design Review. The City shall have the authority to review the technical design plans of the system for any upgrade or rebuild 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 local regulations. Franchisee shall provide the following design information: engineering design maps; key for design maps; system level 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 perform end of the line test to ensure that the' coaxial cable plant tested performs according to Page 10 of 47 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 F, attached hereto and incorporated by reference. The Franchisee shall follow the permitting process as specified by the City. C. Underground Construction. Franchisee shall participate in and use Iowa One Call and ensure that cable is buried at a depth of a minimum of twelve inches (12"). 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 Franchisee for conversion from the existing system to any upgraded or rebuilt 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 G, 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: 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. X. SYSTEM SERVICES. A. Additional Services. Franchisee shall provide 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 H, attached hereto and incorporated by reference. Prior to selecting all the new services to be offered after any upgrade or 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 H. Franchisee shall use its best efforts to provide the programming that had the highest degree of community interest and that would serve the community interests indicated in their own survey and in any consumer market survey Page 11 of 47 conducted on behalf of the City. The results of the consumer market survey will be provided to the City within thirty (30) days of completion. B. 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. C. 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 I, 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. D. 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-cimuit 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 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. E. 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. F. Interactive Services. Franchisee shall provide one free cable modem and free cable modem/Intemet service for all public schools. XI. ACCESS CHANNELS, EQUIPMENT, 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. Franchisee shall use its best efforts to maintain the · number and channel position of the access channels as shown in Appendix J, attached hereto and incorporated by reference. Franchisee shall provide the following number of dedicated access channels: three (3) channels for government access; two (2) channels for educational access; one (1) channel for public access; and one (1) channel for Kirkwood Community College. Upon the City's request, Franchisee shall Page 12 of 47 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. 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 channels) 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 allow programming to be viewed within their respective municipalities while Iowa City programming continues to be viewed within the City of Iowa City. In the spectrum between 550 MHz and 750 MHz, and 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. The City may prescribe: rules and procedures under which the cable operator is permitted to use access channel capacity for the provision of other services if such channel capacity is not being used for the purposes designated; and rules and procedures under which such permitted use shall cease. 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 equivalent to fifty-five (55) cents per subscriber per month starting on the effective date of this franchise extension and, thereafter, until the conclusion of the fifth year of the term. At the beginning of the sixth year of the term and for the remainder of the franchise term, the Franchisee shall provide the City with payments, for the purposes listed above, in an amount equivalent to sixty (60) cents per subscriber per month. 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 Page 13 of 47 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 with annual payments based on a $189,923.44 annual payment for the calendar year 2005. 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 change in the CPI-U, U.S. Cities Average, published by the U.S. Department of Labor, using the base month of September each year. All annual payments shall be due January 1 st of each year. D. Publicity. Franchisee agrees to provide the publicity services as specified in Appendix K, attached hereto and incorporated by reference. The Franchisee shall provide one hundred (100) run of scheduled public service announcements per month for use by the City or access channel operators. Production of the public service announcements will be the responsibility of the City or the access channel operators. 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, City Hall, 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 subscriber 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. Page 14 of 47 G. Signal Quality. Franchisee shall assure that the access channel delivery system from the City Hall 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. Annually, or upon request by the City, Franchisee shall test the delivery system from the origination sites to ensure a high quality picture is provided to subscribers. Grantee shall use reasonable efforts to optimize the picture quality of the access channel delivery system. 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. The Franchisee shall provide two thirds of the costs of constructing origination capability to: Dubuque and Iowa streets; Clinton and Iowa streets; and an extension at the Library. The City shall pay one third of such costs. The costs shall not exceed the following: $23,505 for the origination site at Dubuque Street and Iowa Avenue; $32,499 for the origination site at Clinton Street and Iowa Avenue; and $7,200 for the library origination site extension to allow programming near the fountain. Franchisee shall construct the origination sites upon the written request of the City, starting in 2006. The City shall determine the order of construction of the sites and the timing for construction. The Franchisee shall not be required to construct more than one site per year. The Franchisee shall complete construction of each origination site no later than June 30th of the following calendar year upon receipt of a written request from the City. Franchisee shall design the origination site routing in cooperation with the City. In addition to the origination sites financed as described above, the Franchisee agrees to construct additional origination lines upon the request of the City, if the expense of the additional lines is borne by the City or other City designated entities, the cost for such origination lines shall not exceed the Franchisee's actual cost of construction. Any such additional fiber optic lines shall use the most efficient routing and shall be designed in cooperation with the City. 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 Page 15 of 47 and/or at the least cost, related to access programming origination distribution. Access to Franchisee's headend and equipment will be limited to Franchisee's personnel. Such personnel shall supervise any activity with regard to this section. 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. XIII. SUBSCRIBER INFORMATION AND POLICY. A. Subscriber Information. At the time an 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 availability 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 L, 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. Page 16of47 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 City annually. F. FCC Standards. Franchisee shall meet the 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 iequirements 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. For service interruptions of over four (4) hours and up to fourteen (14) days, the Grantee shall provide, at the subscriber's verbal or written request, a credit of one-thirtieth (1/30) of one month's fees for affected services for each 24-hour period service is interrupted for four (4) or more hours. For service interruptions of over fourteen (14) days, the Grantee shall provide, at the subscriber's verbal or written request for a rebate, a credit of one month's fees for affected services. This provision shall not apply if the service interruption is the result of a cable system upgrade or rebuild. 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 law 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 Page 17 of 47 payment stations shall be open during normal business hours and be dispersed throughout the City. Franchisee shall continue to provide subscribers with the options to pay by telephone and through automatic withdrawal. L. TDD. Within 180 days of the effective date of this Franchise, Franchisee shall install a TDD machine or utilize a recognized third party agent such as Access Iowa to receive consumer messages from the hearing impaired. M. Repair Calls. Franchisee shall 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 as specified in Appendix L. 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. Company shall have the City's address and telephone number included on the subscriber's bills. At such time as the Company's billing system allows it, the Company shall increase the size of the City related information on the bills. Company shall, at least once annually, in the fall, provide a billing statement that informs subscribers of the availability of the Company's snowbird policy for residents that winter in another area. XIV. 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, gender identity, 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, gender identity, national origin, age, sexual orientation, or marital status. XV. RATES. The City shall have the ability to regulate rates in accordance with Federal law. Page 18 of 47 XVI. 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. 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 Page 19 of 47 Consumer Protection and Competition Act of 1992 (Limitation of Franchise Authority Liability), or by any other provision of la~v. D. In addition to the above, Franchisee agrees to defend, indemnify, save and hold harmless City and other entities operating access channels in Iowa City, their officers, boards and employees from and against any liability for damages, including attorney fees and for any liability or claims resulting from any allegation that a public, educational or government access channel in Iowa City on the Franchisee's cable system has infringed upon the copyright or performance rights held by any person for music performed that is part of any locally originated programming cablecast over public educational or government access channels required as part of this Franchise. 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 Franchisee 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 the following, the City shall notify Franchisee in writing of the violation. The City shall provide Franchisee 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 Franchisee 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 Franchisee within thirty (30) days. Franchisee 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 service 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 Page 20 of 47 (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. (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 fight 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 fights 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. XXI¥. 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. Page 21 of 47 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on ,2005. CITY OF IOWA CITY, IOWA A muniCipal corporation ATTEST: Mayor Witness MCC Iowa LLC Witness City Attorney's Office - Page 22 of 47 Appendices A. General System Design Specifications B. Drop technical parameters C. Delivery system equipment list D. Test equipment available to Iowa City within 24 hours E. Preventative maintenance program F. Franchisee's construction manual G. Cutover process H. Programming categories I. Free Drop Locations J. Access Channel Placement K Access publicity L. Business and Repair Hours Page 23 of 47 APPENDIX A General System Specifications (750 Mhz) Distribution - End of Line (~ Ch. 77) NCTA Standard methods: Carrier/Noise 46 2nd order beats 51 Triple order beats 51 Cross modulation 51 Tap outputs 54 MHz 9Db minimum Tap outputs 750 MHz 14Db minimum Fiber Link (output as node): Carrier/Noise 49 2nd order beats 63 3rd order beats 63 Cross modulation 63 Page 24 of 47 APPENDIX B Drop Technical Parameters Coaxial cable shall meet the requirements ofSCTE ~PS-SP-001 or ANSI/SCTE 15 2001 as specified to a bandwidth o£ 1000 MHz Page 25 of 47 APPENDIX C Delivery System Equipment Scientific Atlanta High Gain Model Gainmaker System Amps Scientific Atlanta Line extender Model Gainmakcr Regal 1000 MHz line passives Times Fiber 625 T10 series feeder cable Times Fiber 875 T10 series trunk cable Page 26 of 47 APPENDIX D Test Equipment 1. Hewlett Packard Model # 8591C Spectrum Analyzer 2. Signal Analysis Meter - Wavetek MS 1400 A. Signal levels B. C/N ratios C. Hum in % 3. Wavetek Model 3 ST Bench Sweep 4. Wavetek Model SDA 5000 Field Sweep Meter 5. Comsonics Leakage Detector Model Sniffer Sleuth 6. Comsonics Leakage Detector Sniffer II & III's 7. FIS Optical Power Meter Model # OV-PM 8. Tekronix Model TV220 TDR Cable Tester 9. Tekronix Model TFS3031 Optical TDR Page 27 of 47 APPENDIX E Preventative Maintenance Procedures The Iowa City system is driven off for signal leakage each quarter. Leaks are logged and repaired by the service technicians. All leakage logs arc kept on file in the Iowa City office. Page 28 of 47 APPENDIX F Mediacom Upgrade/SpLicing Procedures (based on original document from Corporate dated 4/16/98) 1. Splicing specifications are provided by Mediacom, but due to resplice conditions, many locations become a custom build. For example - field decisions regarding the use of extension connectors (3- inch or 6-inch) to maintain proper spacing from the pole and to provide a uniform and straight entry into the equipment on the input and output sides. Most locations will require the input loop to be straightened and reformed (with Jackson/Lemco mechanical benders only - no boards, forms or hand- formed loops) with the proper spacing (see attached drawings). 2. All strand-mounted equipment, including amplifiers, directional couplers, splitters and power inserters will have input and output loops. Ifa po~ver inserter falls at a location with a piece of feeder equipment, the feeder equipment (tap, directional coupler or line extender) ~hould be on brackets with the power inserter mounted above it on the strand, just offsetting the bracket. Don't force the input loop! Taps are the only devices that do not require an input loop, EXCEPT at terminating taps. The loops at a terminating pole may be deleted in certain situations where the pole is accessible ONLY by climbing. 3. Grounding and bonding: a) All active components require either a bond or their own ground rod and vertical groundwire at the pole ~ prior to and after the active. b) All junction poles can be "share bonded" with the power or telephone vertical, but a split-bolt connector must be connected below the CATV strand. c) If local utilities allow, strand may be bonded to power or telephone. If no telephone or power vertical exists, install a full vertical and ground rod. d) For underground plant - no new grounds are required, and any existing grounds should be reconnected securely. 4. All rusted lashing wire clamps and straps are to be replaced. Tree guard shall be installed beneath the suspension clamp on all trunk or multiple cables. 5. On dual cable, two straps are placed in the bottom of each loop. Loops without two straps are to be brought up to Mediacom specifications where contractor work is being performed. Skip (no cut) poles do not have to be reworked, with the exception of straps, spacers, and lashing wire clamps. 6. Straight splices require an input loop, as well as the standard output loop. 7. Do not place taps on preformed strand splices, deadends, or other obstructions. 8. Self-support cable shall be treated with the same specifications as any other cables. Split the cable from the messenger with great care so as not to damage the jacket. Use straps and spacers (55 inches Page 29 of 47 out from the suspension clamp), and Jackson/Lemco mechanical benders must be used to form the loops. Forming boards are not allowed. 9. Where possible, taps are to be placed 18 inches from the suspension clamp. When necessary, one may use a measurement of NO LESS THAN 12 INCHES to save a straight splice or extension connector. 10. When the combined length of multiple pieces of equipment would put the furthest connector beyond 4 feet from the suspension clamp, the equipment may be "split" into two separate pieces - which may then be spliced on each side of the pole. All other applicable specifications shall be adhered to, including length of doglegs, loops, etc. 11. Long, straight doglegs into equipment shall be the standard. There must be a minimum of 6 inches of straight cable into any connector. There must be a minimum of 4 inches of straight cable into any strap and spacer. 12. Any active house drops must have new "Snap-N-Seal" F connectors installed, with proper tools used for preparation and installation. When moving span clamps, install them no closer than 18 inches from the pole. 13. Mediacom mandated working hours are to be coordinated with Project Managers. Although local requirements may vary, the following is recommended: Trunk: Off- 12 midnight On - 6AM Answering service is to be notified before and after (by person coordinating nighttime splicing) Feeder: Off- 6AM On - 3:30 PM Areas to be affected by work must be logged on street sheets the previous day, and faxed to the Regional dispatch center No active system work is to be performed on weekends or holidays unless specified in advance by Mediacom personnel. 14. Signal levels of amplifiers, and end-of-line levels are to be noted on amplifier log sheets, and the control maps, during upgrade. Balancing is to be performed using channels 4, 58 or 70 (or applicable pilot channels) and two additional channels to be designated. Log sheets will be collected daily. 15. Street sheets showing daily work locations are required to be turned in to the project supervisor, before 8:30AM each day. 16. Wall maps are to be marked up daily for Mediacom, with all end-of-line levels posted, noting any added equipment or other design changes. 17. Contractors for Mediacom are required to provide magnetic identification signs for all trucks. Contract personnel will carry photo ID cards identifying them as contractors for Mediacom. 18. Proper splicing techniques are to be used at all times: a) Corin9 tools are required that leave a smooth edge on the coax sheath (Cablematic or Lemco tools) b) Center conductor cleaner tools must not damage copper cladding. The Plexiglas Y-190 tool works well. No metal blades are allowed. Center conductors must be cut to length in accordance with the connector manufacturer's specifications. EXPECT MEDIACOM TO REGULARLY 1NSPECT SPLICING. Page 30 of 47 19. Bishop #10 3-3/4" x 10' Electro-Seal tape will be applied to all housing to housing connectors. Do not apply Bishop tape to 90°, 180°, or other connectors. The tape may be cut in half for easier application in small spaces, but in any case should be stretched tight as it is wrapped. 20. In underground areas, all equipment will be securely mounted to the pedestal or closure with the proper mounting bracket. Taps may be mounted directly to the pedestal, ifa proper mounting point exists. No equipment is to be left floating, or mounted to ground rods. 21. Pedestals will be replaced only if they are the incorrect size, or damaged. Dull paint is not a reason to replace an otherwise functional metal pedestal. 22. Safety a) Hard hats are to be worn whenever doing any aerial work. b) Cones are to be set out at rear and front of track. c) Men Working signs shall be used when mandated. d) Flares shall be used when conditions warrant. e) Ladders must not be left unattended. f) Debris including staples, loose wire, pieces of shielding or center conductors, connectors, etc., must not be left unattended at the job site. General information 1. When applicable, use top feeder ports on amplifiers. 2. All splicing should conform to Mediacom's specifications regarding proper spacings, and uniform and straight entry. If done properly, no individual's splicing can be singled out from the rest (see attached drawings). 3. All equipment provided by Mediacom should be handled properly without abuse - including keeping it dry, secure, etc. Organized tracks do help. FIBER OPTIC CABLE SPECIFICATIONS AND NOTES 1. Underground fiber: Depth will vary from region to region - a 36 inch to 42 inch depth will be considered a minimum. One tmderground warning tape will be placed 12 inches above the cable. If all-dielectric fiber cable is used, an additional tape with an integral metallic locating conductor will be placed directly on top of the cable. Use Budco Brady stakes for above grade warning markers. DO NOT place stakes directly above the fiber path, or within the trench/plow path. NOTES: · Conduit being used for fiber will be of nothing less than a schedule 40. · Long distance fiber locators may be required due to long runs. 2. Aerial fiber: The "bag loop" in the fiber at the pole, on the attached drawings, is exaggerated for clarity, and should not be built as drawn. The loop at the pole should be a shallow, smooth curve that maintains a slight separation between the fiber sheath and the suspension clamp. Use Vikimatic (TVC) fiber optic warning tag - yellow or orange with black letters, to be attached to bottom of loop at pole, with tie wraps. Fiber lashing wire clamps will be placed on the pole side of the existing lashing wire clamps. Above existing coaxial cable loops, fiber will be attached using stainless steel cable straps. All fiber will be installed, no partial fiber reels will be brought back to the warehouse. All fiber lashbacks will be installed 10 feet from the pole. Fiber loops will be teardrop-shaped, hanging vertically, with manufacturer's bending radius specifications observed. Snowshoes WILL NOT be used as a bending form- and are not to be used AT ALL. Page 31 of 47 Node service cables should be lashed or strapped out along the strand - not coiled. 3. Fiber backlashes: Regional preferences or local codes may apply. All storage fiber is to be lashed to the strand (see attached drawings). MULTIPLE DWELLiNG UNITS (MDUs) 1. The upgrade process will generally provide a minimum +20dBmV input signal to an active or a lockbox serving a MDU complex. This may be reflected on the design maps as individual tap ports for 12 units and under, or a terminated feeder leg with signal level shown. Adjustments to the design may be necessary to properly provide signal for each building in a complex. 2. Any lockbox work, splitter updating, indoor amplification, or rewiring is the responsibility of the local technical operations personnel. 3. Construction personnel and a representative from the local technical staff should meet well in advance of the upgrade start date, to review the work necessary and coordinate efforts. 4. All lockboxes should be grounded with #6 copper at the input. Local codes regarding grounding and bonding should be followed. 5. Interior distribution amplifiers should be avoided, if at all possible. Outdoor line extenders, powered from the outside plant, are preferred. Page 32 of 47 This page is blank... Page 33 of 47 CONSTRLICTIONI .SPIf. CIPICATIONI5 CONSTRLICTIONI SPP. CIPICATION.S CONI.~LICqOIq .~PP.C:IPICAqON5 ~~ CONP~LJC, qON ¢INOLI.V:DI¢II:D~I~ APPENDIX G Cut over process The upgrade/rebuild will involve installing and activating fiber optic 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 fiber node is completed, it will be activated. The activation of one node will not interfere or interrupt the completion ora separate node. In the event the company is confronted with the loss of signal from more that one street at a time, the Company will make every possible effort to complete the work during minimal viewing, such as 12:00 a.m. or 6:00 a.m. or at the time recommended by the City. APPENDIX H Programming Categories for System-Wide Programming Science Fiction Programming Religious Programming Cartoon Programming Federal Government News Programming Educational Programming Pay Per Channel and Pay Per Program Programming International Programming WOmen's Programming Do-it yourself and Self Improvement Programming Children's Programming News Programming History Programming Comedy Programming Music Programming Sports Programming Arts Programming Black Entertainment Programming Hispanic Programming 10 APPENDIX I Free Drops Iowa City School Sites All schools and administration buildings Other Schools Regina Elementary Regina High School Willowwind School Kirkwood Community College Public Buildings City Hall Senior .Center Recreation Center Libraries Fire stations Broadway St. Neighborhood Center Pheasant Ridge Neighborhood Center PATV office City Cable Office Other Sites Future neighborhood centers Future access organization(s) sites Future City government administration buildings 11 Appendix J Access Channel Positions PATV Channel 18 Government Channel Channel 4 University o f Iowa Channel 17 InfoVision Channel Channel 5 Library Channel 10 KTS . Channel 11 Iowa City Schools Channel 21 12 APPENDIX K Publicity 1. 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 programming provider (government, education, public). The Company reserves the right to approve content. 2. The Company agrees to allow billing messages or bill stuffers to be included in the subscribers' bills at the rate of 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, and public). 13 APPENDIX L Business and Repair Hours Business Hours: 8 AM - 6 PM Monday-Friday 9 AM- 5 PM Saturday Service Hours: 8 AM- 5 PM Monday-Saturday On call- 24 hours per day, seven days a week 14 Cable Franchise Summary Presentation by: Don C. Williams, Ph.D Partner Rice, Williams Associates Prepared for: Iowa City June 2005 Terms of the Franchise Agreement · Compliance · Technical n Customer Service · Public Benefits Compliance · Performance Bond. $500,000 performance bond · Ordinance Controlling. Ordinance controls all franchises and sets regulatory standards a Insurance. Insurance coverage at specific levels required · Hold Harmless. Requires Company to hold City harmless Compliance (Continued) a Performance Evaluations. Ordinance sets framework for on-going performance evaluations · Term. Thirteen year non-exclusive term with revocation provisions for non- compliance Technical · Platform. 750Mhz system = Line Extension. Threshold for line extension 20 homes per mile; 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. Technical (Continued) · State of the Art. Mediacom will provide provide state-of-the-art features equal to those introduced during the same year in other systems owned by Mediacom Communications Corporation or its subsidiaries in Ames, Iowa; municipalities served by the same headend as Iowa City;municipalities served by the headend in Mason City; or municipalities served by the headend in Fairfield Customer Service · Consumer Regulation. Company required to comply with FCC standards · Future Regulation. Ordinance sets standards and allows for the City to increase requirements in the future as needed · Emergency Alert. All-channel, local emergency alert system for use by the City · Snowbird Policy Customer Service (Continued) · Outage Rebates. For service interruptions of over four (4) hours and up to fourteen (14) days, at the subscriber's verbal or written request, a credit of (1/30) of one month's fees for affected services for each 24-hour period service is interrupted for four (4) or more hours. For service interruptions of over fourteen (14) days, at the subscriber's verbal or written request for a rebate, a credit of one month's fees for affected services. Customer Service (Continued) · Liquidated Damages. Liquidated damages for non-compliance with customer service standards · Intereonnection. Public, educational, and governmental channels to be made available in contiguous communities which are served by the Iowa City headend. · Office. Three payment sites in addition to the Franchisee~s office Public Benefits · Access Channel Equipment and Facilities Funding. Equipment funding for access over 13 years with increases beginning year six. · Access Channel Operation Funds for operating for access over 13 years with inflation adjustments. · Access Channels. Five active local access channels - City Channel 4, PATV, the Library Channel, the school's channel, and InfoVision in addition, one channel has been allocated to the University of Iowa and one to Kirkwood. Public Benefits (Continued) · Free Drops. Free drop and expanded basic service to one outlet in all City utilized buildings, public schools and public libraries · PSA's. 100 public service announcements free of charge per month · ASCAP/BMI Indemnification for access channels · Mediacom w/Il provide two thirds of the costs of constructing origination capability to: Dubuque and Iowa streets; Clinton and Iowa streets; and an extension at the Library. The City shall pay one third of such costs Terms of the Franchise Agreement · Compliance · Technical · Customer Service · Public Benefits Dear Press-Citizen Editorial Staff, As Iowa City considers the proposed franchise extension for Mediacom, it is important for residents to be informed of the limitations and goals of the franchise negotiation process. Among the options available, the Iowa City Telecommunication Commission (ICTC) and the City Cable Division have pursued a franchise extension in order to both minimize the administrative costs to the city while maximizing the benefits of the franchise. The renewal process can be resolved through informal negotiations, or through a formal process detailed in Sec. 626(a)-(g) 47 U.S.C. in federal law. Iowa City's cable division, the telecommunications commission, and the city's consultants Rice-Williams have, over the past 15 months, simultaneously followed both procedures. While the city holds the power to ultimately accept or deny a franchise renewal, the terms for doing so are narrowly defined. Mediacom's duties are to 1) comply with the material terms of the existing franchise and with applicable law, 2) provide a reasonable quality of service in light of community needs, 3) maintain the requisite financial, legal, and technical ability, and 4) offer a franchise proposal that reasonably meets the future cable-related needs and interests of the community, taking into accounts the costs of meeting such needs and interests. If, and only if, the city finds that Mediacom has failed in one of these duties can the franchise renewal be denied. Such a finding cannot be based on past performance. This means that Mediacom must be given the opportunity to correct any failures before the franchise could be denied via a formal administrative heating. Any decision to deny could then be appealed to state or federal court. Because of these aspects of federai law, denying a franchise renewal is a lengthy, difficult, and expensive process that has only been successfully completed a handful of times against independent cable operators in communities smaller than Iowa City. Even a successful formal negotiation process can impose a significant cost. Dubuque recently spent over $500,000 for their cable franchise negotiations and finished with a 16-year franchise agreement that imposes less stringent requirements and responsibilities than Iowa City's current proposed 13-year franchise extension proposal, negotiated at a cost close to $50,000. Ultimately it is often easier (though no less costly) for a city to revoke an existing fi'anchise and take possession of the cable system rather then deny a franchise renewal. Mediacom purchased the Iowa systems from AT&T at a cost of over $2,600 per subscriber, so the price tag to the city would easily top $45 million. This is before the costs of finding a new provider or instituting a municipal cable utility. Mediacom did voluntarily sell their existing system in Muscatine to the municipal utility Muscatine Power and Water in 2002 at a cost of $2,500 per subscriber. As has been the pattern throughout Iowa, municipal cable in Muscatine was created only after the successful creation of a municipal electric utility. In each year of its existence, the MP&W's communication utility has posted a net loss, though 2004 showed the lowest annual net loss so far of only $2.2 million. At one time MP&W had lower rates than Iowa City. Today, rates are similar between the two cities. MP&W offers 23 channels on the basic tier for $14/month, 70 channels on expanded basic for $38.75, and 25 channels on digital basic for an additional $14.50. Mediacom in Iowa City offers 22 channels on basic for $12/month, 78 expanded basic channels for $45.95, and 38 digital plus channels for an additional $16.00. The lower basic cable costs in Iowa City are the result ora rate reduction and freeze negotiated in 2003. Lineups between the two systems are quite similar except that Iowa City carries twice as many public access, educational, and govermnent channels. The two systems offer almost identical prices for all levels of premium digital packages. The one significant difference is that HD channels and cable internet are not available in Muscatine. Considering the costs and risks involved, the Iowa City Telecommunications Commission is not currently considering the option of municipal ownership of the cable plant. Creating competition is the best alternative for lowering cable prices in Iowa City without sacrificing services. Doing so is not easy. Each year the City Cable Division sends out information packages every known cable system overbuilder in the United States in an attempt to attract a competing cable company. Less than 20 such companies now remain, and only one company, McLeod, has expressed interest in the past. McLeod's overbuild plans were abandoned due to a lack of capital. Unlike phone companies, cable television and internet companies cannot be required to share or rent their infrastructure. While SouthSlope Telephone Cooperative has done an excellent job of expanding their array of services into the North Corridor, SouthSlope remains uninterested in competing with Qwest in Iowa City. Meanwhile, Qwest continues to be one of the few national telephone service providers with no interest in providing digital television signals over their copper wires. Although it might be possible to create competition by allowing a second company to wire prime extraterritorial subdivisions before annexation, doing so would be a violation of local, state, and federal laws governing the form of franchise agreements. Despite these limitations, the city, with the cooperation of Mediacom, still can negotiate an excellent franchise agreement within federal rules. The levels of funding for community television services, public access, education, and government (PEG) channel operations, and community access equipment in the current proposed extension are among the highest in the country. The proposed cost sharing for video origination locations is unique among recently negotiated agreements. The rebate and customer information policies correspond to some of the highest standards for cable television in the country. Most importantly, the state of the art clause guarantees that Iowa City will stay at the apex of services offered among similar communities in Iowa with language that will not become outdated as video equipment and service standards proceed past the current state of the art. A franchise extension will not be the end of the negotiating relationship between Mediacom and the city. As happened in 2003 with the basic cable rate reduction and freeze, the city and Mediacom can create additional agreements to improve customer service and expand cable television options. Meanwhile, the City Cable Division will continue working to bring new cable services to the city, whether through the incumbent Mediacom, an overbuild competitor, or municipal cable if the option becomes feasible. The Iowa City Telecommunications Commission will continue to monitor Mediacom's customer service performance and push Mediacom to provide higher levels of customer service. The most important factor is citizen participation. Complaints have dropped significantly under Mediacom compared to the days of TCI and AT&T while complaint resolution remains high. Combined with stable subscriber numbers, the Iowa City Telecommunications Commission sees this dramatic drop in complaints as a sign of satisfaction with Mediacom's service compared to previous companies. Residents with unresolved consumer issues should contact the City Cable Division. Not only do you provide valuable feedback on Mediacom's management of their franchise, but you will also find that more often than not, your issue will be resolved. Such citizen input guides the current franchise negotiations and will direct the path of future negotiations with cable service providers. Sincerely, Brett Lord-Castillo Commissioner, Iowa City Telecommunications Commission FRANCHISE RENEWAL Page 1 of 12 FRANCHISE RENEWAL Answers to Frequently Asked Questions About Renewal 2004 NATOA Annual Conference September 15-18, 2004 Westin St. Francis Hotel San Francisco, California Presented by: Brian T. Grogan, Esq. Moss & Barnett, A Professional Association 4800 Wells Fargo Center, 90 South Seventh Street Minneapolis, MN 55402-4'129 Telephone: (612) 347-0340 Facsimile: (612) 339-6686 Email: groganb@moss-barnett.com Web site: www.municipalcommunicationslaw, com http://municipalcommunicationslaw.com/articles/704458.htm 6/7/2005 FRANCHISE RENEWAL Page 11 of 12 CABLE FRANCHISE RENEWAL PROVISIONS PUBLIC, EDUCATIONAL AND GOVERNMENTAL SUPPORT* Cable Operator/ # of Access Franchise Date/ Channels Community Pqpuiation Franchise Term Cabl Cannon Falls, MN 3,795 Mediacom 1 3/03 - 5/9/15 Moberly, MO 11,945 Comcast 1 35¢ p/s 3/01 - 12/31/10 Savage, MN 21,115 Mediacom 5 50¢ p/s 9/99 - 10 years Stevens Point, WI 24,551 Charter 3 8/02 - 5 years Carroll County, MD 35,000 Prestige Communications 5 Capital gran 5/00 - 10 years Annually - $75,0~ O Lakeville, MN 43,128 Charter 4 50¢ p/sub p/mc 10/98 - 15 years 95¢ $1 .lC Oshkosh, WI 62,916 Time Warner 3 35¢ 11/01 - 15 years 37¢ 39¢ 40¢ p/ NDC4 - Inver Grove over 80,000 Comcast 7 Heights, Lilydale, 4/00 - 15 years $250,000 - Mendota, Mendota $250,000 Heights, Sunfish Lake, South St. Paul and West St. Paul, $ MN Eau Claire, WI 93,142 Charter I 75¢ I 6/00 - 15 years 85¢ 95¢ pi,' $1.05 p Reno, NV 180,480 Charter 5 Access capital grant - $250,000 4/04 - 15 years anniversary; $100,000 due 2® a Annual capital grant - $ Arlington County, VA 189,453 Comcast- 7/98 6 Initi; Annually - $289,000 Starpower - 8/00 Operating support - 3% gross revenue I-Net ( One-time paym, Montgomery Cty, MD Approx. Comcast 13 $2,000,000 i 200,000 subs 6/98 - 15 years $200,000 e Tampa, FL 303,447 Time Warner 6 initial capital 3/00 - 15 years Operational su and $1,250,0 Community gra $250 Tucson, AZ 486,699 Comcast- 2002/10 years _6 $0.4442 p/sub Cox- 1997/10 years minimum 7 1997 Franchise requires Transfer 1998 maximum 9 1998 Transfer Agreement requir~ payment mad, Denver, CO 554,636 Comcast 8 Access supp 1/00 - 15 years $500,000 on or befo $500,000 on or befo Initial Capital Grants for Acces: $1,200,000 on or bel http ://municipalcommunicationslaw.com/articles/704458 .htm 6/7/2005 FRANCHISE RENEWAL Page 12 of 12 Capital Contribution for $.87 p/s~ Seattle, WA 563,374 Western Integrated 10 Government access facilitie., Networks $95,00 1/01 - 10 years Public access funding - $25,012 whichever is greater provided is, Austin, TX 656,562 Time Warner 9 $1,500,000 in the period Jan. 1, 6/96 - 15 )/ears period of San Francisco, CA 776,733 Comcast 3 Annual capital grant - $7,000 1! 1997 O Annual operating grant - $450,0, every three, *This chad was created by gathering public documents available from various municipalities and other related web sites. The chad is for reference use only. Other ordinances, local codes, resolutions and related documents may affect the existing provisions in a community. Readers are encouraged to contact individual communities for specific details. http ://municipalcommunicationslaw.condarticles/704458.htm 6/7/2005 SUMMARY OF MEDIACOM CABLE SERVICES FRANCHISE PROPOSED RENEWAL AGREEMENT April 29, 2005 1. Franchise Term The proposed franchise term is fifteen (15) years. The franchise would be for the delivery of cable services and would be nonexclusive. 2. Broadcast Basic Tier While the size, contents, and pricing of a basic cable service package cannot be a formal term of the agreement, Mediacom has represented to the City that it will begin to offer a limited "broadcast basic" package with 21 channels. By federal law, these must include the broadcast TV stations and the local PEG (Public, Educational and Government) access channels. 3. Senior Citizen Discount Mediacom will maintain the current ten percent (10%) Senior Citizen discount on the 72-channel Family Cable tier, which is currently priced at $45.50 for most subscribers, $40.95 for seniors. There will be no discount on the price of the limited "broadcast basic" package. A subscriber (head of household) who reaches the age of 65 and submits an application to Mediacom with proof of age will qualify for the Senior Citizen discount. 4. Technology Updating Fund To keep the cable system as technologically current as possible, Mediacom will contribute $300,000 per year in years one through twelve of the franchise, (totaling $3.6 million), to an Updating Fund. This money can only be spent by joint agreement of the City and Mediacom. 5. System Upgrade Within twenty-four (24) months of the signing of the agreement, Mediacom will upgrade the electronics in their Dubuque cable system to increase the total bandwidth (capacity) from the current 750 MHz to 860 MHz. Mediacom would expend all or part of the first four years of contributions to the Updating Fund (above) on this upgrade. 6. Annexation Consistent with the City's obligation to extend utilities, Mediacom would have up to three years to provide cable television services throughout an annexed area. 7. Digital vs. Analog While this issue will be subject to significant FCC regulation, Mediacom will be permitted to convert digital signals to analog to avoid making old analog television sets obsolete. They will also strive to pass digital and high-definition (HDTV) signals to the greatest extent possible to accommodate new television receivers designed for these signals. Eventually, the entire television signal spectrum will evolve to digital technology. 8. Institutional Fiber Network (l-Net) Within the first 18 months of the agreement, Mediacom will construct a new "dark fiber" Institutional Network. The term, "dark fibe¢' means that users, not Mediacom, provide and operate the end devices to light the fiber. Separate from the subscriber network, this I-Net will interconnect 77 government, educational and not-for-profit facilities in Dubuque. The City will be able to use the I-Net for any non-commercial purpose. Hospitals and medical facility use of the I-Net will be restricted to community emergency applications, and all other not-for-profit facilities, including educational institutions, will be subject to restrictions on their use of the I- Net for communications outside the network. The City will possess an indefeasible right to use the fiber optic plant dedicated to the I-Net, and will also have the option to purchase the I-Net from Mediacom on terms stipulated in the franchise agreement. 9. ICN Links Mediacom will continue to maintain and operate all existing links to the Iowa Communications Network (ICN) at no charge, and the new fiber I-Net may be interconnected with the ICN, consistent with I-Net use requirements. 10. Business Fiber Optic Infrastructure and Services In addition to existing Mediacom fiber optic facilities, as the I-Net is constructed, at least 6 additional new optical fibers will be installed along its route for Mediacom to use in delivering commercial networking services to business and industry. Mediacom will extend fiber in the right-of-way to the curb within six months of a signed agreement by any business for a large bandwidth service requiring fiber, at no additional cost to the business. The monthly charge for the particular communication service will be negotiated between that business and Mediacom. 11. Industrial Parks In addition to any existing Mediacom fiber and the new business fibers to be installed along with the I-Net, Mediacom will extend designated fiber links to Dubuque Technology Park and Dubuque Industrial Center West within two years of the agreement. 12. Free Service To Certain Facilities Upon request of the City, Mediacom will provide one activated cable service drop and Basic Cable Service to each school and each facility owned or leased by the City at no charge. Each institution may further distribute the service within the facility at its own expense for uses consistent with the institution's mission. Also, Mediacom will provide one 200-ft. (maximum) drop and maintain one connection for Internet access to one computer terminal in each school or library within the franchise area at no charge. Any additional costs will be borne by the school or library for a time and materials charge. 13. Trenching When either the City or Mediacom is trenching in the public right-of-way, the other party would have the right to install its own conduit at the same time. However, if the City ever establishes a municipal communications utility that competes with Mediacom, the City would have to reimburse · Mediacom on a pro-rata basis for its portion of the trenching costs for any cable the City previously installed in Mediacom trenches. 14. Importing Broadcast Television Signals All broadcast television station signals will be imported into the Dubuque system by optical fiber, resolving a 50-year-old reception problem. 15. Universal Service Mediacom is required to extend residential-type cable service to all businesses and residences within the City. 16. TDD/TTY Mediacom will direct hearing-impaired callers to Relay Iowa, a state-wide service, for assistance. The company will clearly advertise the availability of the Relay Iowa service. 17. Emergency Alert Unless preempted by the Federal Emergency Alert System, the City would continue to have the ability to issue local alerts, subject to regulation by the FCC. 18. Franchise Fee Mediacom will pay a franchise fee of five percent (5%) of gross revenues on cable services. If any action of law expands the base upon which franchise fees may be collected, Mediacom will automatically expand its computation and payment of franchise fees in Dubuque accordingly. Mediacom will continue to treat the franchise fee on subscriber monthly bills as a cost recovered from within the rates for services, and will not list the franchise fee as an additiona.I charge in the manner they list sales taxes. 19. PEG (Public, Educational, Government) Access Channels Mediacom will continue to provide on its subscriber network two public access television channels, one shared educational access channel, and one government access channel, as is currently offered. In addition, Mediacom will provide a second educational access channel dedicated to 24-hour, 7-day programming by the Dubuque Community Schools. On or before December 31, 2006, Mediacom will also make PEG Access programming available to digital subscribers through its Video On Demand service. At such future time as Mediacom carries local broadcast stations in high definition (HDTV), any PEG Access channel will also be transmitted in HDTV format upon request of the entity managing the channel. Throughout the term of the franchise, Mediacom will continue to provide studio production facilities, production assistance, editing, scheduling and playback, equipment maintenance, training, outreach, management and administrative support for users of the public access channels at the same level as was provided as of January 1, 2005. 20. Capital Grants for PEG Access Equipment and Facilities Separate from the franchise fee, Mediacom will deposit 1.75% of gross revenues in an interest-bearing account from which the City may draw for capital support for PEG and I-Net use, in its sole discretion, provided that the City will not use more than 50% for I-Net support. 21. Charitable Foundation While not included in the franchise agreement, Mediacom will form a charitable foundation to which the company will contribute .25% of cable service gross revenues (estimated at $25,000 per year) to distribute in the community. Initially, the fund will focus upon arts and cultural affairs. The board of the foundation will include Mediacom employees and members of the City's Cultural Affairs Advisory Commission. 22. Remedies Instead of moving directly to termination of the franchise as the only penalty for a violation of the franchise agreement, the new franchise provides incremental steps and monetary penalties for different types of violations. 23. Right-of-Way Ordinance Mediacom's use of the rights of way will be the subject of a separate ordinance based upon one devised by the Iowa Municipal Attorneys Association, with Corporation Counsel Barry Lindahl participating. Although this ordinance will initially apply only to Mediacom, the goal will be to eventually apply the right of way ordinance to all utilities.