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Report regarding a Master Encroachment Agreement with Bandwidth IG, LLC for the Installation of Network Facilities within the Public Rights-of-Way. (Eunejune Kim, Director of Public Works/City Engineer)
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RECOMMENDATION
Recommendation
It is recommended that City Council adopt a resolution approving a Master Encroachment Agreement with Bandwidth IG, LLC for the Installation of Network Facilities within the Public Rights-of-Way, and Authorizing the City Manager to execute the agreement.
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BACKGROUND/DISCUSSION
The City of South San Francisco (“City”) owns, manages, and regulates the use of public streets, easements, and public rights-of-way that have been dedicated to the City. Private telecom companies and public utilities have the authority under California Public Utilities Code section 7901 and California Public Utilities Commission (CPUC) decisions to install and maintain their facilities within public streets and rights-of-way. While the City cannot impose a blanket prohibition on telecommunications deployment, it can impose regulations and conditions regarding the time, place and manner of the use of the rights of way pursuant to relevant statute and case law.
Bandwidth IG, LLC aka Sagebrush Cable Engineering (“Sagebrush”) is planning a fiber-optic project within the City and is requesting permission to install new fiber-optic lines/conduits within the City public rights-of-way. These installations may be located on overhead utility poles or in underground conduits. The work will occur throughout the City in support of Sagebrush high-speed telecommunications services.
Staff recommends approval of a Master Encroachment Agreement to allow for the installation of facilities, and to outline the terms and conditions for the non-exclusive use of the public rights-of-way. This agreement grants a revocable license to Sagebrush to install fiber-optic facilities in the rights-of-way, and requires Sagebrush to obtain individual encroachment permits for each separate segment installation. The term of the agreement is ten (10) years from its execution, unless otherwise renewed by the parties.
The Master Agreement provides the City with control over what, where, and how facilities are installed and maintained within the public rights-of-way, and it requires Sagebrush to provide the City with updated maps annually with details of their installations. The Master Agreement also ensures that the installations comply with the City’s “Dig Once” policy, by which the City and other providers can choose to participate in the installations for their own needs; taking advantage of the economies of scale while minimizing disruptions to the public and preventing additional damage to the infrastructure. Sagebrush is responsible for damages to the rights-of-way due to construction of its facilities pursuant to the Master Agreement, and to maintain insurance coverage. The Master Agreement further imposes indemnification obligations on Sagebrush to indemnify, defend and hold harmless the City against liabilities arising from Sagebrush activities pursuant to the agreement, with the exception of those solely caused by the City’s gross negligence or willful misconduct.
The Master Agreement also specifies that the City may order the removal or relocation of the fiber-optic facilities without cost to the City if the City determines (1) the right-of-way location is needed for City work or facilities; or (2) if the fiber-optic facilities are detrimental to governmental activities including interfering with City projects and installations.
Likewise, the City may terminate this agreement with a sixty-day written notice in the event that (1) the fiber-optic facilities interfere with the use or disposal of the public right-of-way; (2) that Sagebrush fails to comply with the terms of the Master Encroachment Agreement; (3) bankruptcy or dissolution of Sagebrush; and (4) revocation, expiration or other loss of applicable permits or authorizations required by City or other laws for the fiber-optic facilities.
The Master Encroachment Agreement has been negotiated and reviewed by staff and reviewed by the City Attorney as to form.
FISCAL IMPACT
Sagebrush will pay fees to cover the costs associated with City staff review and construction inspections for separate encroachment permits required by each underground installation segment of fiber-optic lines. There is no compensation required by the Master Agreement, as it merely outlines the terms and conditions required of Sagebrush for the entirety of the agreement.
RELATIONSHIP TO STRATEGIC PLAN
Approval of the Master Encroachment Agreement supports the City’s Strategic Plan to improve Quality of Life for the community; specifically promoting a full range of employment options through business retention and development projects.
CONCLUSION
It is recommended that Council adopt a resolution approving a Master Encroachment Agreement with Sagebrush for the Installation of Network Facilities within the Public Rights-of-Way, and authorizing the City Manager to execute the agreement.
Attachment: Proposed Route