Memorandum

City of Lawrence

Legal Services Department

TO:	David L. Corliss, City Manager
FROM:	Toni Wheeler, Director of Legal Services
Cc:	Diane Stoddard, Assistant City Manager Cynthia Boecker, Assistant City Manager Jonathan Douglass, Assistant to the City Manager
Date:	July 30, 2009
RE:	Revised Report - Agreements With Lawrence Freenet

A report similar to this report was provided to the Commission on April 7, 2009. It has been reformatted slightly and updated to reflect two additional agreements with Lawrence Freenet authorized by the City Commission earlier in 2009. The table below identifies the dates of City Commission action, in the event Commissioners or a member of the public wishes to review the relevant City Commission Meeting Minutes.

Date	Action
August 16, 2005	City Commission received initial Freenet Presentation. Staff directed to make City facilities available.
October 28, 2005	Approved Freenet installation on 19^th & Kasold Water Tower
February 7, 2006	Approved installation on City Hall, Stratford Water Tower 6^th & Kasold Water Tower
April 3, 2007	Received status report on various Freenet requests – including downtown installations
April 10, 2007	Approved Freenet installation on Clinton ParkwayTraffic control signals
April 24, 2007	Approved installation on Harper Water tower and numerous street lights in city.
January 29, 2008	Declined request to pledge City’s guarantee for “Freenet Kids” Program loan; received information on proposed Busquest program
February 17, 2009	Approved installation of Freenet equipment on 10 downtown light poles
April 7, 2009	Approved installation of fiber optic cable in city right-of-way near 23^rd and Harper
July 17, 2009	Received KCC Order granting Community Wireless’ request for Video Service Provider status

A summary of the City Commission’s consideration of requests from and agreements with Lawrence Freenet follows:

August 16, 2005

Joshua Montgomery made a presentation to the City Commission, describing Lawrence Freenet as “a non-profit community networking project with the goal of providing free internet to the entire Lawrence community.” August 16, 2005 City Commission Minutes, Page 22. Montgomery described Freenet’s goals as (1) making information technology available in neighborhoods where it was not available by creating a free broadband network throughout Kansas communities as an alternative to traditional ISPs; (2) looking at solar and wind power to provide power for their equipment; (3) refurbishing surplus computers and distributing them to people who could not otherwise afford them; (4) providing non-profit organizations high speed internet access; and (5) providing homeless individuals with voice mail to assist them in applying for jobs and maintaining contact with family.

Montgomery stated they needed places in town to mount their antennas on light poles, traffic control poles, water towers and multi-story buildings. They also needed office space, and a truck to help with installation of the equipment.

After a discussion, the Commission “encouraged city staff to cooperate and work with Lawrence Freenet and make City facilities available, as staff believed appropriate.” Aug. 16. 2005 City Commission Minutes, Page 28.

October 28, 2005

As part of its consent agenda, the City Commission approved an agreement with Lawrence Freenet for the use of the City’s water tower at 19^th and Kasold Drive.

February 7, 2006

The Commission approved site plans and agreements with Lawrence Freenet for installation of equipment on City Hall, the Stratford Water Tower, and the 6^th and Kasold Water Tower. This was a consent agenda item with no separate discussion.

April 3. 2007

Staff presented a report on the status of a number of requests from Lawrence Freenet to use additional facilities, including the Harper Water Tower and light and traffic control poles. Patrick Knorr, then General Manager of Sunflower Broadband, advised the Commission that his company and other for-profit entities provided free internet access in the community. City Manager advised the Commission that staff was finalizing the Harper Tower lease agreement and a license agreement for a pilot program for street lights on Clinton Parkway.

April 10, 2007

The City Commission authorized the City Manager to enter into a License Agreement with Lawrence Freenet for the installation of equipment on traffic control signals on Clinton Parkway.

April 24, 2007

The City Commission authorized the City Manager to enter into an Agreement with Lawrence Freenet for the installation of equipment on the Harper Water Tower. The Commission also authorized a license agreement for installation on traffic control signals throughout the City.

January 28, 2008

Joshua Montgomery presented “Freenet Kids”--a proposal to make the Freenet network available to every child in the community. His proposal stated Freenet would fund the $4.3 million network through its technology partners. Freenet asked the City to help support the actual service for the first five (5) years of operation through a loan guarantee. The Commission declined citing cash basis law and other legal concerns.

February 17, 2009

The Commission approved Freenet’s installation of 10 wireless devices on City light poles in the downtown area. Freenet planned to provide free wireless services to downtown businesses.

April 7, 2009

The Commission approved Freenet’s installation of fiber optic cable in the City’s right-of-way near 23^rd and Harper Streets.

AGREEMENTS

The agreements contained a number of standard provisions for the use of City property. Each executed agreement with Lawrence Freenet contains language in the recitals stating that the City is granting the privilege to Lawrence Freenet to locate equipment on City facilities or in the right-of-way because Lawrence Freenet provides free internet service in the community.

The first agreement, approved in October 2005, reads as follows:

The City is the owner of property interests located in the City of Lawrence, Douglas County, Kansas, including, but not limited to Street Rights-of-Way (ROW), park property, City of Lawrence Utility Department structures and facilities – including water towers, City of Lawrence buildings, traffic light poles, other traffic control devices, and other property interests.

Lawrence Freenet, Inc. is a not-for-profit Kansas corporation formed for the purpose of providing free internet access to Kansas communities. To that end, Lawrence Freenet, Inc. wishes to access various City Properties, to locate, mount, and maintain transmitter units in various locations in the City of Lawrence, to provide free internet access to Lawrence residents.

On August 16, 2005, the Lawrence City Commission stated its support for Freenet’s goal of increasing internet access for the Lawrence community. The City Commission directed and authorized the preparation of an agreement between the City of Lawrence and Lawrence Freenet, Inc., to use certain City Property as authorized by this Agreement and approved by City staff, for the installation of equipment to provide free internet access to Lawrence citizens.

Accordingly, Lawrence Freenet, Inc. has requested permission from the City to place equipment, transmitters and antennas, on portions of City Property described below, and the City has agreed to provide such space to Lawrence Freenet, Inc., for such purpose, all in accordance with the terms and conditions of this agreement.

The other key provisions of the agreement are as follows:

1. Term. The term of the agreement is five (5) years.

2. Consideration. Freenet pays an annual rent of ten dollars ($10.00).

3. Use. Freenet may use the City property for installation, operation and maintenance of equipment for a Freenet Access Point. Freenet’s use is subordinate to any City use. Freenet must maintain its equipment and relocate it at the request of the City.

4. Access to Property. The City will provide access to Lawrence Freenet and that access must be by persons covered under their liability policy.

5. Insurance. Freenet must maintain minimum coverage with respect to liability insurance.

6. Preservation of City Property. Lawrence Freenet shall not cause any damage to City property or facilities.

7. Indemnification. Freenet agrees to indemnify the City for any and all claims arising from its activities on City property.

8. Termination. The City and Freenet agree to terminate the agreement at any time with notice.

9. Default. If Freenet fails to abide by any of the terms of the agreement, the City shall be entitled to give notice of default.

10. Notice. The parties to the agreement have identified where to send notices under the agreement to.

11. Utilities. Freenet is responsible for any utility usage for its equipment on City property.

12. Assignment. Freenet cannot transfer the agreement to another party without the written consent of the City.

13. Governing Law. Laws of the State of Kansas shall be applied when enforcing or interpreting the agreement.

The Agreement included Exhibit B which set forth Lawrence Freenet’s commitment to serve low income households.

On February 7, 2006 the City approved agreements for Lawrence Freenet’s installation of equipment on the rooftop of City Hall, on Stratford water tower, and on the water tower at 3708 W. 6^th Street. The recitals and provisions of the agreements are the same as the original agreement. However, the following provisions were added:

1. Term. The agreement is for five (5) years, but can be extended upon mutual consent of the parties.

2. Termination. Termination language is added that allows the City Commission to terminate the agreement if the governing body finds that Freenet service is not a value to the community.

3. Reporting Requirements. New reporting requirements are added. Freenet must provide quarterly reports to the City Manager showing the total number of users serve by Lawrence Freenet the previous quarter and the total number of users receiving free or reduced rate services. On or before March 31 of each year, Lawrence Freenet must submit its IRS Form 990 (copy of Federal Tax Return), its corporate annual report filed with the Kansas Secretary of State, its financial statement for the previous years, and its annual report.

On April 10, 2007 the City agreed to allow Freenet to install equipment on traffic signal poles at a number of intersections. New provisions appeared in this Agreement, including:

1. Grant of the License. The license agreement is subject to applicable Historic Resources Commission requirements.

2. No Representation by the City. The City does not make any representation with respect to the condition of traffic poles.

3. Covenants of the Licensee. Lawrence Freenet agrees to adjust or remove immediately its equipment if the City deems it as an emergency or if it determines Freenet equipment is interfering with City operations.

On April 24, 2007, the City agreed to allow Freenet to install its equipment on the City water tower located at 2100 Harper Street. This agreement added the following provisions:

1. Interference. Freenet devices cannot interfere with City/County radio frequencies used on City property.

2. Lease Agreement. Freenet must co-locate on Sprint equipment and must execute a lease agreement with Sprint.

The February 17, 2009 agreement for installation of devices on downtown street lights was conditioned upon HRC approval and contained the standard provisions summarized above.

April 7, 2009 agreement for the installation of fiber optic cable in the right-of-way at 23^rd and Harper Streets followed the standard provisions of earlier Freenet agreements. The recitals state that the City agreed to permit the installation of the fiber optic cable “for the purpose of providing free internet access to Lawrence residents….” It also provides that the agreement cannot be assigned, transferred or pledged without the prior written consent of the City.

The Utilities Department and Lawrence Freenet entered into a cooperative agreement in which Freenet installed video equipment purchased by the City on the City’s water towers on Harper, Stratford, Oread, 19^th and Kasold and 6^th and Kasold. The City pays Freenet $1,200 per year per site or $6,000.00 annually, to receive video service at the water towers.