Memorandum

City of Lawrence

Legal Services Department

 

TO:

David L. Corliss, City Manager

 

FROM:

Toni Ramirez Wheeler, Director of Legal Services

 

CC:

Debbie Van Saun, Assistant City Manager

Chief Mark Bradford

Chief Ron Olin

Dave Wagner, Utilities Department Director

Sheila Stogsdill, Interim Director of Planning

Sandra Day, Planner

 

Date:

March 29, 2007

 

RE:

Lawrence Freenet’s Request to Install Equipment on the City’s Harper Water Tower and on Certain Street Lights

 

Pursuant to your direction, this status report is provided on the applications submitted by Lawrence Freenet (“Freenet”) to install equipment on the top of the City’s water tower on Harper Street and on four street light poles along Clinton Parkway. 

 

A.  Harper Water Tower

Lawrence Freenet proposes to install equipment on top of the City’s water tower on Harper Street for their internet access system.  The proposal includes locating equipment at the base of the tower also.  The Planning Department has reviewed the application and provides the attached report and action letter.

 

Lawrence Freenet has criticized the City for delaying its application.  Several factors contributed to the delay in processing the application submitted by Freenet for this site in 2006.  First, the materials initially submitted by Lawrence Freenet were incomplete and did not reflect the planned installations.  Some of the deficiencies included:

 

          *The site plan included no dimensions;

          *It was not prepared to scale;

          *It contained no physical reference to existing improvements or utilities;

          *It lacked setback information;

          *It was not prepared by a professional;

          *The application was unsigned.

 

In short, it met none of the standards and criteria for site plan submittals under the former code, according to the Planning Department.  A copy of the site plan submitted by Freenet is attached to this report for your review. [Site Plan]   

 

Second, in 2006, the Harper Water Tower site was of interest to other telecommunications providers.  Sprint Spectrum was actively working on plans to install equipment on the water tower.  T-Mobile expressed interest in constructing a 150-foot monopole on the site for its antennas, as well as to accommodate antennas of other telecommunications providers.  With this much interest in the site, the Utilities Department grew concerned that its future expansion needs at the site could be hindered by all of these telecommunications providers’ plans.  Then Interim Director of Utilities Chris Stewart was concerned that the department may need to reserve space for a second water tank to serve the needs of future development in eastern Lawrence.  If a new cellular tower was approved, it may have implications for the Utilities Department.  On May 9, 2006, the City Commission received a staff report regarding the interest in the Harper water tower site.  This discussion was relevant to Freenet’s plans because staff wanted to ensure that future installations at the Harper site left the Utilities Department with maximum flexibility for the City’s use of the site. 

 

The City Commission directed staff to continue its negotiations with Sprint Spectrum and defer the T-Mobile proposal until T-Mobile supplied information documenting that its needs could not be satisfied by existing structure or facilities.  T-Mobile eventually abandoned its proposal to construct a new monopole at the Harper water tower site and pursued a monopole on another property in the vicinity.  Sprint Spectrum proceeded with its proposal to install equipment on top of the Harper water tower.  Its installation will be more fully discussed later in this report.

 

On December 26, 2006, Lawrence Freenet revived its proposal to install equipment on the Harper water tower, along with installations on 66 traffic control signals, 5 Massachusetts Street traffic signals, the Judicial and Law Enforcement Center, the ITC, five (5) fire stations, and the Arts Center.    On February 6, 2007, City Manager David Corliss and I met with Freenet representatives Joshua Montgomery, Michael Moore, and Davina Gans regarding the large submittal.  Staff requested that Lawrence Freenet identify its priority installations for City staff to address first.  We further suggested that a test installation on 2-3 light poles be conducted to help the City assess whether to proceed with the additional light pole installations.      

 

At the February 6th meeting, the Freenet representatives verbally identified the Harper site as a priority installation for them.   Staff worked on this proposal based upon the December 26, 2007 submittal.  The December 26th Freenet submittal for the Harper tower site remained deficient in several respects.  Planning Department and Utilities Department staff worked with the applicant to remedy these deficiencies. 

 

In late February 2007, Freenet sought to modify its Harper tower proposal to include a large LPG (liquefied petroleum gas) tank at the site.  The LPG tank would serve as a back-up generator for the Freenet equipment.  LPG is prohibited in any area other than industrially zoned properties by City Code.  The Harper water tower site is zoned RS-7.  When advised of this limitation, Lawrence Freenet proposed to bury the LPG, but staff advised Freenet that burying the tank would not satisfy the code requirements and would not be a safe action.  Freenet has since removed the LPG tank from their proposed site plan application. 

 

The Planning Department conducted its regular staff plan review on February 23, 2007, collecting review comments from City Departments affected by the proposal.  Staff shared the departmental comments with Freenet on February 28, 2007.

 

A brief summary of some of the City departments’ more critical concerns warrant review:

 

Utilities Department:  The plans were not prepared by a professional engineer.  The department requested Freenet provide data concerning the design of the proposed antenna installation.  The plans did not show how the equipment would be fastened, nor did the plans show where the equipment would be located.  The department also wanted assurances the Freenet antennas did not adversely affect the structural integrity of the Sprint pod, or interfere with the Sprint antennas.   

 

Public Safety Agencies (Lawrence Police Department and Lawrence-Douglas County Fire and Medical Department:  Because the Harper Water Tower is adjacent to Fire Station No. 2, and because the Lawrence Police Department’s mobile data terminals operate on the same public frequency as the proposed Freenet equipment, staff had concerns that the Freenet equipment could interfere with our public safety agencies’ communications and computer equipment.  To allay those concerns, City staff requested Lawrence Freenet submit an independent professional opinion or report regarding the frequencies of the Freenet equipment in relation to the public safety agencies’ equipment.  Lawrence Freenet declined to provide the requested information.  City staff has made efforts to confirm on our own that there will be no interference with the public safety agencies’ communications equipment.  The Lawrence Police Department consulted with Jim Denney.  The Lawrence-Douglas County Fire and Medical Department has contacted TF Com, its radio equipment provider, for an opinion regarding Freenet’s installation.  TF Com responded to the Fire and Medical Department on March 29, 2007.  Both agencies now approve the Freenet installations as proposed on the condition that the City’s License Agreement with Freenet clearly provide that if the City determines the Freenet equipment is interfering with, or reducing the efficiency of one or both of the public safety agencies’ equipment, as determined by the City, Freenet must move or adjust its equipment immediately. 

 

Legal Services Department:  Staff requested Freenet have Sprint submit a letter to the City approving Freenet’s proposal and indicating Freenet’s frequencies and antenna location will be compatible with Sprint’s.  This request was made to satisfy the City’s contractual obligations with Sprint, its existing tenant at the Harper water tower site. 

 

Sprint Review

In May 2006, the City Commission authorized the City Manager to enter into a site agreement with Sprint Spectrum (Sprint/Nextel).  The site agreement authorized Sprint to install antennas and supporting equipment at the Harper Water Tower site subject to certain terms.  At the request of the Utilities Department, Sprint paid for the design and construction of a pod to be installed on the top of the tower to which its antennas would be attached.  The Utilities Department requested an antenna pod be installed to reduce the number of individual weldings and attachments to the water tank that could compromise the condition of the City’s tank.  The antennas are attached to the pod rather than directly to the City’s tank.  The pod was designed, constructed and paid for by Sprint and is Sprint’s equipment. 

 

Freenet’s response to this request by City staff was that Sprint could learn about Freenet’s plans in the City Commission meeting minutes.  When it became clear to staff on or about March 7, 2007, that Freenet did not intend to coordinate its plans with Sprint as requested, staff faxed Freenet’s plans to Sprint on March 8, 2007, requesting review and approval.  Sprint staff responded cooperatively.  While Sprint generally processes such reviews in approximately 30 days, Sprint expedited its review on behalf of the City and Freenet and responded to the City in writing in 14 days of receiving the plans from the City. 

 

Sprint consented to the Freenet installation subject to conditions.  (See the attached letter from Sprint).  One condition is that Sprint and Lawrence Freenet execute a Lease Agreement.  Brian Van Asten, Lease Specialist for Sprint, reported that he advised Lawrence Freenet on March 22, 2007 of the following with regard to the Sprint-Freenet lease agreement:

 

1.      Sprint agreed to review a lease prepared by Lawrence Freenet to expedite the process.  Mr. Van Asten stated that he told Freenet that the Sprint lease department is currently short-staffed and if Sprint had to prepare the lease, it may take approximately six months to submit one given the department’s current work load.  Mr. Van Asten stated that he reported that this schedule could be significantly reduced if Freenet submitted a lease for Sprint’s review.  Sprint agreed to allow Freenet to submit a proposed lease for Sprint’s expedited review and approval.

2.      Sprint requested the lease contain two key provisions:

a.      It be a no-cost lease, i.e. Sprint will not charge Lawrence Freenet for locating on its pod;

b.      It contain a provision that if Sprint wishes to expand and use space occupied by Freenet equipment, Freenet agrees to relocate its equipment, at its cost.  Mr. Van Asten represented to City staff that Sprint would work with Freenet in this regard.

 

The above account differs from Mr. Montgomery’s representations regarding a Sprint-Freenet lease made to the City Commission at the March 27, 2007 City Commission meeting.  The conditions of the Sprint approval seem reasonable to City staff given that Sprint owns the pod.   

 

License Agreement With City

If the City Commission authorizes Lawrence Freenet to install equipment on the Harper Water Tower, staff recommends the City Commission authorize the City Manager to execute a license agreement with Lawrence Freenet for the Harper water tower site.  The agreement should include the following provisions, among others:

 

  1. A description of the property covered by the agreement (including space on the pod on top of the tower and defined space at the base of the tower).
  2. A five year term, unless terminated earlier by either party.
  3. An annual payment to the City as consideration for the agreement.  Previous agreements have required a $10.00 annual payment and an agreement to provide internet service at a free or reduced rate to the community of Lawrence.  Staff further recommends that the agreement require Freenet to provide the City with Freenet services, if the City elects, for free or at a significantly reduced rate.
  4. A description of the permitted use of the City’s property tied to the site plan reviewed and approved by the Planning Department. 
  5. A provision describing how Lawrence Freenet will access the property that is agreeable to the City Utilities Department. 
  6. A provision requiring Lawrence Freenet to procure and maintain general liability insurance of specified amounts.
  7. An indemnification provision that protects the City against all claims and actions which relate to or arise from Lawrence Freenet’s use or occupancy of the property.
  8. Provisions requiring Lawrence Freenet to provide the City Manager with quarterly reports showing the number of users receiving Lawrence Freenet services at a free or reduced rate and corporate annual reports and other reports.
  9. A provision authorizing the City to cause Lawrence Freenet to adjust, relocate, or remove its equipment if in the City’s opinion the Lawrence Freenet equipment is causing interference with the City’s use of the property or reducing the efficiency of the City’s or County’s communications and/or computer systems or with existing radio frequency users on the Property.
  10. Receipt of a copy of the fully executed lease agreement with Sprint for installation on the Sprint pod before the City executes the license agreement with the Freenet.

 

Existing Freenet Installations on City Property

As additional background, the City Commission previously authorized Lawrence Freenet to install equipment on the 19th and Kasold water tower, the Stratford water tower, the 6th and Kasold water tower, and on top of City Hall.  The agreements for these installations state that the City Commission authorized Lawrence Freenet to use certain City property “for the installation of equipment, transmitters and antennas to provide free internet access to Lawrence residents.” 

 

The City has waived certain application procedures for Lawrence Freenet including site plan review fees, legal department review fees, independent, engineering consultant review fees.  The ten dollar annual rent payment is nominal compared to the annual rents paid by other communications providers.  (Sprint Spectrum’s first year rent at the Harper water tower site was in excess of $20,000.00.)

 

B.  Street Light Installations 

 

In March 2007, Lawrence Freenet identified and submitted information to the Planning Department and the Legal Services Department for installations on four street lights on Clinton Parkway.  Since that time, planning staff has been reviewing the submitted information.  The Planning Department has not yet approved the applications.  The Planning Department will provide a separate report on these applications.  If Freenet obtains the land use approvals, we would recommend that the Commission authorize the City Manager to enter into an agreement for Freenet’s use of the City’s light poles.  We have been advised by another utility company to require Lawrence Freenet to access the light poles by the use of a bucket truck.  This utility company had liability concerns when Freenet accessed their poles by ladders, an unprofessional and unsafe method.