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HomeMy WebLinkAboutReso - CC - 005-2004RESOLUTION NO. 5-2004 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME APPROVING AMENDMENTS TO CABLE TELEVISION FRANCHISE AGREEMENT BETWEEN THE CITY OF BURLINGAME AND RCN TELECOM SERVICE OF CALIFORNIA, INC. (NOW RCN TELECOM SERICES, INC.) RESOLVED, by the City Council of the City of Burlingame: WHEREAS, RCN Telecom Service of California, Inc. (RCN of California) was granted a franchise to operate a cable television franchise pursuant to Chapter 6.48 of the Burlingame Municipal Code in 1999; and WHEREAS, RCN of California is now changing its name to RCN Telecom Services, Inc. (RCN); and WHEREAS, RCN has not been able to obtain the capital funding commitments to continue build out in the City and has asked to City to extend its obligations to complete the system; and WHEREAS, this delay will allow RCN to seek additional funding while continuing to provide service to a number of customers in the City, does hereby resolve, determine, and find as follows: NOW, THEREFORE, IT IS ORDERED AS FOLLOWS: 1. The amendments to the cable television franchise agreement with RCN contained in Exhibit A hereto is approved. 2. The Finance Director is authorized and directed to execute the Agreement by and on behalf of the City, and the City Clerk is authorized and directed to witness the signature of the City Manager. Mayor I, Ann T. Musso, City Clerk of the City of Burlingame, do hereby certify that the foregoing Resolution was introduced at a regular meeting of the City Council held on the 5th day of January 2004, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: BAYLOCK, COFFEY, GALLIGAN, NAGEL, O'NAHONY NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE 0%4/ - j •/ f 1M-"7 City Clerk C:\F[LESUtESOUcnfranchise.fiawpd Attachment A. AMENDMENT NO.1 TO TBE CABLE SYSTEM FRANCHISE AGREEMENT BETWEEN THE CITY OF BURLINGAME AND RCN TELECOM SERVICES, INC. This Amendment No. 1 is entered into this day of , by and between the City of Burlingame ("City") and RCN Telecom Services, Inc. ("RCN") as an amendment to the Franchise Agreement between the City and RCN Telecom Services of California, Inc. dated August 7, 2000 ("Franchise Agreement"): 1. The Franchise Agreement shall be amended to reflect the name change from RCN Telecom Services of California, Inc. to RCN Telecom Services, Inc. 2. The City of Burlingame shall suspend RCN's node activation obligations as outlined in Exhibit B of the Franchise Agreement (dated August 7, 2000) for a period of three (3) years from the effective date of this amendment. 3. The parties agree that the actual number of nodes that have been activated as of the date of this agreement shall be 32 nodes. This number shall serve as the starting point for counting and crediting future nodes to be activated. 4. At the end of the three (3) year suspension period, RCN shall resume construction obligations of the system. However, nothing in this agreement shall prevent the Parties from meeting and negotiating in good faith either (i) to modify the construction obligations or (ii) to further suspend RCN's construction obligations under the Franchise Agreement. In any event RCN is required to complete the activation and construction of the entire franchise area by August 7, 2011. 5. If RCN resumes construction and activates an additional 30 nodes by December 30, 2008, then the term of the Franchise Agreement and the requirement to complete construction and activation of the entire franchise area shall each be extended by four (4) years. Under this scenario, the franchise term would be fifteen years. The activation of 30 additional nodes would serve to make RCN's telecommunications services available to an additional 4,290 homes in the Burlingame Service area. 6. During the suspension period, RCN shall have the right to operate its existing Cable System in the City pursuant to the terms of the Franchise Agreement and to undertake additional construction and node activation pursuant to the terms of the Franchise Agreement. During the suspension period, RCN will be released from any and all claims arising out of RCN's failure to activate any nodes as outlined in the Franchise Agreement, including any and all rights to assess liquidated damages or other penalties for RCN's failure to activate such nodes. However, the City of Burlingame retains any and all rights to assess liquidated damages and other penalties for material violations of the Franchise Agreement not pertaining to the construction and activation of nodes. Page 1 8. Except as expressly amended by this Amendment No. 1, all other terms and conditions of the Franchise Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the City of Burlingame and RCN Telecom Service, Inc. have executed this Amendment No. 1 to the Franchise Agreement. Jesus Nava Finance Director/Treasurer Date Doug Schulz Date RCN Vice-President/General Manager Page 2