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HomeMy WebLinkAboutItem 7g. Authorize Purchase of Broadband Easement on Damon-Garcia Property Item 7g Department: Information Technology Cost Center: 1101 For Agenda of: 5/7/2024 Placement: Consent Estimated Time: N/A FROM: Greg Hermann, Deputy City Manager Prepared By: Joshua Erquiaga, Information Technology Manager SUBJECT: AUTHORIZE PURCHASE OF BROADBAND EASEMENT ON DAMON- GARCIA PROPERTY RECOMMENDATION 1. Accept an easement from the owners of the Damon -Garcia Ranch for broadband infrastructure, and in exchange provide payment of $30,000; and 2. Authorize the Mayor to execute an Easement Agreement with the owners and a declaration of acceptance of the Easement Deed. POLICY CONTEXT The City of San Luis Obispo’s policies and procedures for real property acquisition and disposal are found in Section 475 of the Financial Management Manual, which further incorporates City Charter Article IX, Section 906, and City Council Resolution No. 10052 (2009 Series). Section 475 states that acquisition proposals should be consistent with adopted plans and policies and requires Council approval of the acquisition of real property. The 2023-2025 Major City Goals call out specific tasks related to broadband.  Diversity, Equity, & Inclusion task o 2.7a - Support the development and implementation of the Broadband Strategic Plan to ensure access is equitable and pursue funding to fill gaps. The City Council adopted the Broadband Plan on June 20, 2023, to facilitate work to improve broadband access and affordability within the City. This easement is necessary to facilitate the City’s larger redundant fiber-optic backbone ring, which is a key component of the City’s Broadband Plan. DISCUSSION Background In 2003 the City installed new water infrastructure within the Damon -Garcia property, pursuant to an easement negotiated with the Damon-Garcia property owners and granted to the City on October 8, 2003 (see the Council Agenda Report from October 21, 2003.) Page 255 of 270 Item 7g At the time, the City also installed, within the waterline easement area, communications conduits alongside the water infrastructure, which was and is standard practice for the City. On September 20, 2011, the City Council approved an agreement with Digital West Networks, Inc. to allow access to City-owned conduit for the purpose of completing a private fiber-optic network in the City. In exchange for access to the City’s conduit, Digital West agreed to provide the City with certain services, such as data storage and connectivity that represent ongoing value to the City. During the installation of Digital West fiber in the City’s conduit, it was discovered that the existing water line easement was exclusive to the water line use. City staff worked with the Damon Garcia Ranch owners to draft a new easement agreement, and the City Council authorized the Mayor to accept the new easement at the December 6, 2011 City Council meeting. In July of 2023, while discussing replacement of the existing fiber optic cable within the communications infrastructure for newer, higher capacity fiber optic cable with Astound Broadband (formerly Digital West), City staff discovered that the easement approved in December of 2011 was never recorded with the County. Staff once again engaged the owners of the Damon-Garcia ranch property to formalize the City’s long-standing use of the easement area for communications infrastructure purposes and have prepared a new proposed communications easement, which the Owners have accepted (see Letter of Intent, Attachment A.) The proposed easement is necessary to maintain City communications infrastructure which runs alongside the water line infrastructure within the Damon-Garcia Ranch Property. The fiber optic cabling within the communications infrastructure provides redundancy to the City’s fiber optic network and ensures fast and reliable communications to City work sites. It completes a ring along the southern edge of the City which ensures that fiber optic cable cuts in other parts of the City do not disrupt critical communications. The fiber optic cable within the communications infrastructure will also play an important role in the City’s Broadband Plan implementation along the southern edge of the City. As discussed in the December 6, 2011 Council Agenda Report, the communications easement follows the exact same path as the existing , recorded water line easement (Attachment 1, 2, and 3 to Item C3 of the December 6, 2011 Council Meeting), so staff did not utilize title or escrow services for valuation of the easement as a cost -saving measure. No new infrastructure or expansion of easement area is contemplated by the proposed easement agreement and deed. Similar to the 2011 agreement, City staff originally proposed exchanging the easement for a waiver of fees, specifically a waiver for two subdivision applications. After an extensive discussion around the uncertainty of development related to the Margarita Area Specific Plan, City staff proposed to the property owner compensation in the amount of $30,000, which is roughly equivalent to the fees to be waived for two subdivisions. Page 256 of 270 Item 7g City staff have identified available funding in the KVEC Radio Tower Project which will not be needed to complete that project. The KVEC Radio Tower Project is designed to enhance Public Safety Radio coverage of the northern portion of the City. The radio system relies on the City’s redundant fiber optic network to ensure its operation to 99.95% redundancy. The communications conduit across the Damon-Garcia Ranch is a key component of the City’s redundant fiber optic network, and as such City staff have concluded it is appropriate to use this project funding to secure this easement agreement. Previous Council or Advisory Body Action The City Council previously authorized the Mayor to accept this easement for City Communications Infrastructure at the December 6, 2011 City Council meeting (Item C3 on the Consent Agenda). This followed approval of a City Communications Conduit Agreement with Digital West Networks, Inc. at the September 20, 2011 City Council meeting. The City Council approved the Broadband Plan at the June 20, 2023 City Council meeting. Public Engagement This item is on the agenda for the May 7, 2024 City Council meeting and will follow all the required posting and notification. Public comment on the item can be provided to the City Council through written correspondence prior to the meeting and through public testimony at the meeting. CONCURRENCE There is concurrence from the Administration and Information Technology Department and the City Attorney's Office on this recommendation. ENVIRONMENTAL REVIEW The California Environmental Quality Act (CEQA) does not apply to the recommended action in this report, because the action does not constitute a “Project” under State CEQA Guidelines Section 15378.  FISCAL IMPACT Budgeted: Yes Budget Year: 2019-21 Funding Identified: Yes Page 257 of 270 Item 7g Fiscal Analysis: Funding Sources Total Budget Available Current Funding Request Remaining Balance Annual Ongoing Cost General Fund $ $ $ $ State Federal Fees Capital Outlay – LRM $171,750 $30,825 $140,925 $0 Capital Outlay $10,537.48 $0 $10,537.48 $0 IT Repl. Fund $75,601.46 $0 $75,601.46 $0 Total $257,588.94 $30,825 $226,763.94 $0 The KVEC Radio Tower project (2000113) has an available project balance of $257,588.94. The purchase of the communications easement creates a redundant back- up to the radio communications system, completing the fiber-optic ring around the city reinforcing the speed and reliability of both emergency communication and standard City communication functions. Title report fees (see Section 475-B of the Financial Management Manual) are estimated at $750. County recording fees are estimated to be $75 based on the current County of SLO Clerk-Recorder Fee Schedule, effective January 1, 2024-June 30,2024. ALTERNATIVES Council could decide not to authorize the Mayor to accept the easement and sign the agreement with the property owners. This action is not recommended by staff due to the importance of the existing communications conduit to the City’s fiber optic ring redundancy, and due to the importance of this conduit in the City’s Broadband Plan implementation. ATTACHMENTS A - Damon-Garcia Easement Letter of Intent B - Damon-Garcia Easement Agreement C - Damon-Garcia Easement Deed Page 258 of 270 Page 259 of 270 Exhibit A Page 260 of 270 Page 1 Damon-Garcia Ranch Easement Agreement for Broadband Infrastructure (APNs 053-431-002, 003) EASEMENT AGREEMENT THIS AGREEMENT is made and entered into by and between Roy A. Garcia and Dolly H. Garcia, co- trustees of the Roy A. Garcia Family Revocable Trust dated April 2, 1992; Janet L Baird, Debbie Garcia-Bjerre, Londie L Padelsky, Ronnie R Garcia; Heidi A Garcia, co-trustees of the Five G Irrevocable Trust; Eileen M Damon, trustee of the Damon Family Trust under agreement dated September 11, 1994, Survivors Trust; and Eileen M Damon, trustee of the Damon Family trust under agreement dated September 11, 1994, Exemption Trust, all hereinafter collectively called " Grantor," and The City of San Luis Obispo, a Chartered Municipal Corporation, hereinafter called "City." WHEREAS, an Easement Deed covering the property rights particularly described therein, has been executed concurrently with this Agreement and will be recorded in the Official Records of the County of San Luis Obispo (hereinafter, the “Easement Deed”); and WHEREAS, the Easement is necessary for the City’s fiber optic network and to move forward with the long-standing plan to create a fiber optic “ring” around the City to improve the speed and reliability of both emergency communications and standard City communications functions. The easement is also necessary for the City to be able to honor its agreement with Digital West, which has contracted with the City for access to the conduit for their network; and WHEREAS, the Easement occupies the same physical space as an existing water line easement granted to the City as depicted in the Easement Deed recorded on November 5, 2003, as Instrument No. 2003128690 in the Official Records of the County of San Luis Obispo (the “waterline easement.”) In consideration of which, and other considerations hereinafter set forth, it is mutually agreed as follows: 1. The parties have herein set forth the whole of their agreement. The performance of this Agreement constitutes the entire consideration for said Easement. 2. The City shall: a. PAYMENT – Pay to the order of the Grantor the sum of Thirty-Thousand Dollars ($30,000), as consideration in full for the real property interests being conveyed in the referenced Easement Deed. Said sum shall be paid within thirty (30) days of the recordation of the Easement Deed. b. MISCELLANEOUS COSTS – Pay all recording fees incurred in this transaction. c. PROPERTY MAINTENANCE – Generally maintain the surface of the easement areas described in the referenced Easement Deed at the condition as it exists at the time of execution of this Agreement, to the extent reasonably practical. City shall not be responsible for maintenance or repairs to damage of the surface of the easement areas not caused by the City or its contractors. Page 261 of 270 Page 2 Damon-Garcia Ranch Easement Agreement for Broadband Infrastructure (APNs 053-431-002, 003) d. INDEMNIFICATION – Indemnify, and hold harmless Grantor from any and all claims, damages, costs, judgments, or liability caused by City or its officers, employees, invitees, and agents arising from or as a result of the operation of City facilities on Grantor's property. e. RECORDATION OF INSTRUMENT – Accept the Easement Deed herein referenced and cause the same to be recorded in the office of the San Luis Obispo County Recorder upon assurance that clear title can be conveyed to the City. 3. LEASE INDEMNIFICATION - Grantor warrants there are no oral or written leases on all or any portion of the easement areas described in the referenced Easement Deed, except for the waterline easement granted in favor of the City, or if there are any such leases, Grantor agrees to hold the City harmless and reimburse City for any and all of its losses and expenses occasioned by reason of any lease of said property held by tenant of Grantor. 4. The Parties agree: a. TRANSFER OF EASEMENT –City shall not transfer the Easement without the approval of Grantor. b. MODIFICATION FOR RECORDATION – The Parties agree that, should the Clerk Recorder for the County of San Luis Obispo reject recordation of the Easement Deed, the Parties will reconvene and modify the Easement Deed and/or execute additional document(s) to the extent necessary to allow recordation. Any such modification or additional document execution under this Provision shall substantially retain the Parties’ respective rights and obligations set forth in this Agreement. c. ARTICLE HEADINGS - Article headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants and conditions of this Agreement. d. SUCCESSORS AND ASSIGNS - This Agreement shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties hereto. e. COUNTERPARTS - This agreement may be executed in counterparts, each of which so executed shall irrespective of the date of its execution and delivery be deemed an original, and all such counterparts together shall constitute one and the same instrument. f. COMPLETE UNDERSTANDING - This Agreement and the Easement Deed constitutes the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions, and preliminary agreements or understandings, written or oral. This Agreement may not be amended except in writing by the parties hereto or their successors or assigns. g. CITY COUNCIL APPROVAL – Prior to signing, the Agreement will be approved and ratified by the City Council of the City of San Luis Obispo. This Agreement is not binding upon the City until executed by the appropriate City official(s) acting in their authorized capacity. Page 262 of 270 Page 3 Damon-Garcia Ranch Easement Agreement for Broadband Infrastructure (APNs 053-431-002, 003) No Obligation Other Than Those Set Forth Herein Will Be Recognized. GRANTOR: ROY A. GARCIA FAMILY REVOCABLE TRUST DATED APRIL 2, 1992 _____________________________ Date: _______________________ By: Roy A. Garcia, Trustee _____________________________ Date: _______________________ By: Dolly H. Garcia, Trustee THE FIVE G IRREVOCABLE TRUST _____________________________ Date: _______________________ By: Janet L. Baird, Trustee _____________________________ Date: _______________________ By: Debbie Garcia-Bjerre, Trustee _____________________________ Date: _______________________ By: Londie L. Padelsky, Trustee _____________________________ Date: _______________________ By: Ronnie R. Garcia, Trustee _____________________________ Date: _______________________ By: Heidi A. Garcia Breese, Trustee THE DAMON FAMILY TRUST UNDER AGREEMENT DATED SEPTEMBER 11, 1994, SURVIVORS TRUST _____________________________ Date: _______________________ By: Eileen M. Damon, Trustee THE DAMON FAMILY TRUST UNDER AGREEMENT DATED SEPTEMBER 11, 1994, EXEMPTION TRUST _____________________________ Date: _______________________ By: Eileen M. Damon, Trustee MAILING ADDRESS OF GRANTOR: [TO BE COMPLETED] Page 263 of 270 Page 4 Damon-Garcia Ranch Easement Agreement for Broadband Infrastructure (APNs 053-431-002, 003) CITY: CITY OF SAN LUIS OBISPO _____________________________ Date: _______________________ By: Mayor Erica A. Stewart ATTEST _____________________________ Date: _______________________ Teresa Purrington, City Clerk APPROVED AS TO FORM _____________________________ Date: _______________________ J. Christine Dietrick, City Attorney MAILING ADDRESS OF CITY: City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 4890-8688-3765, v. 2 Page 264 of 270 Page 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Information Technology Department City of San Luis obispo 990 Palm Street San Luis Obispo, CA 93401 APNs 053-431-002 & 053-431-003 Exempt from recording fees – Govt. Code §6103 EASEMENT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Roy A. Garcia and Dolly H. Garcia, co- trustees of the Roy A. Garcia Family Revocable Trust dated April 2, 1992; Janet L Baird, Debbie Garcia-Bjerre, Londie L Padelsky, Ronnie R Garcia; Heidi A Garcia, co-trustees of the Five G Irrevocable Trust; Eileen M Damon, trustee of the Damon Family Trust under agreement dated September 11, 1994, Survivors Trust; and Eileen M Damon, trustee of the Damon Family trust under agreement dated September 11, 1994, Exemption Trust, hereinafter referred to as “GRANTOR,” Hereby GRANT to: CITY OF SAN LUIS OBISPO, a Chartered Municipal City, hereinafter referred to as “CITY,” ITEM 1. A permanent communications facilities easement (the “Easement”) with rights of ingress thereto and egress therefrom, to construct, maintain, operate, reconstruct, repair, remove, replace, increase and/or change the number (up to two fiber optic cables) of fibers, cables, appurtenances and incidentals thereto for communications facilities under, within, through and upon certain property in the County of San Luis Obispo, State of California, as particularly described and depicted on attached EXHIBITS A and B which are incorporated into this Easement Deed (the “Easement Area”). The City shall not add additional conduits to the Easement Area without Grantor’s express prior written consent. This right of ingress and egress described above shall extend also to persons contracted by the City to perform work related to the purposes of the Easement stated herein. The Easement shall occupy the same physical space as an existing water line easement granted to the City as depicted in the Easement Deed recorded on November 5, 2003, as Instrument No. 2003128690 in the Official Records of the County of San Luis Obispo. Relocation: This Easement and the communications facilities located within it may be relocated at a future date to an alternative route through Grantor' s property, by Grantor at Grantor' s sole Page 265 of 270 Page 2 cost and expense, subject to City's pre-approval of an acceptable comparable alternative Easement location, City's review and advanced approval of construction plans and specifications, and City's acceptance of replacement facilities constructed per such plans and specifications. Approval or denial by City shall be at City’s discretion, not to be unreasonably withheld, conditioned, or delayed. In order to pursue any such future relocation, once Grantor' s communications facilities easement relocation proposal is approved by City, Grantor shall execute an easement deed to City conveying an easement over the alternative communications facilities route and may then pursue construction of the replacement communications facilities within said new easement in accordance with the relocation conditions of approval specified by City in conjunction with their approval of Grantor's relocation plan. Once construction of replacement communications facilities is completed to City's satisfaction within the relocated easement and such facilities are accepted by City, City agrees to quitclaim this original easement. If no easement relocation occurs per the provisions specified herein, this Easement shall remain valid and effective in perpetuity. ITEM 2 City hereby agrees to provide a minimum of seventy-two (72) hours' notice to Grantor prior to accessing, utilizing or otherwise exercising any right as provided for in this Easement Deed, except in an emergency situation as deemed in the sole discretion of the City. Notice shall be via first class mail, facsimile, overnight mail, email, telephone, or any other electronic communication. ITEM 3 City shall have right to use the Easement solely for the limited purposes set forth above. City hereby (a) accepts the foregoing grant of the Easement and hereby expressly agrees to be bound by the terms, covenants and conditions contained in this deed; (b) accepts the Easement Area in its presently existing, “AS IS” condition; and (c) agrees that Grantor has made no representations or warranties to City of any kind or nature concerning the physical condition of the Easement Area. City shall exercise the use of the Easement at City’s sole and complete risk. ITEM 4 City agrees that any improvements constructed by City shall be done at City's sole cost and expense and in a good and workmanlike manner, and that no liens shall attach to all or any part of Grantor’s property. City shall maintain and repair the Easement Area at its sole cost and expense, to the extent the maintenance or repair is made necessary by the City’s use of the Easement Area. ITEM 5 This grant of Easement is made on the express condition that Grantor is to be free from all liability by reason of injury or death to persons or injury to property from whatever cause arising out of City’s exercise of rights granted pursuant to this Easement or use of the Easement Area or of any improvements made by or personal property of City thereto or thereon. ITEM 6 Grantor and City acknowledge that Astound Broadband (“Astound”) is a third-party beneficiary of this Easement with the same rights to the Easement Area as held by the City and subject to the same limitations stated herein. The Parties agree that Astound is a benefited party only to the extent that Astound possesses a right to use the City’s communications infrastructure and network under a valid contract or partnership agreement with the City, and pursuant to the limitations stated therein. Nothing in this paragraph is intended to modify or limit the right of Page 266 of 270 Page 3 ingress and egress granted to persons contracted by the City to perform work related to the purposes of the Easement stated herein, as provided in Item 1. The terms and conditions of Easement deed shall run with the land and be binding upon the heirs and successors in interest to the parties hereto. Notwithstanding the foregoing, City shall not transfer the Easement without the approval of Grantor. IN WITNESS WHEREOF Grantor has executed this Easement as of the day and year first above written. GRANTOR: BY: NAME: TITLE: DATE: Pursuant to Ca. Govt. Code §27281, this is to certify that the interest in real property conveyed by the deed or grant dated _________ from Roy A. Garcia and Dolly H. Garcia, co- trustees of the Roy A. Garcia Family Revocable Trust dated April 2, 1992; Janet L Baird, Debbie Garcia- Bjerre, Londie L Padelsky, Ronnie R Garcia; Heidi A Garcia, co-trustees of the Five G Irrevocable Trust; Eileen M Damon, trustee of the Damon Family Trust under agreement dated September 11, 1994, Survivors Trust; and Eileen M Damon, trustee of the Damon Family trust under agreement dated September 11, 1994, Exemption Trust to the City of San Luis Obispo, a governmental agency is hereby accepted by order of the City Council of the City of San Luis Obispo on ______, and the Grantee consents to recordation thereof by its duly authorized officer. Dated: ________ By: __________________________ Mayor, City of San Luis Obispo Page 267 of 270 Page 4 State of California } County of San Luis Obispo } On___________________, before me,__________________________________________, Date Name and Title of the Officer personally appeared, _____________________________________________________, Name of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Signature of Notary Public Place Notary Seal Above State of California } County of San Luis Obispo } On________________, before me,__________________________________________, Date Name and Title of the Officer personally appeared, _____________________________________________________, Name of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Signature of Notary Public Place Notary Seal Above A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document. A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document. Page 268 of 270 Exhibit A Page 269 of 270 Exhibit B Page 270 of 270