Memorandum

City of Lawrence

City Manager’s Office

TO:	David L. Corliss, City Manager
FROM:	Diane Stoddard, Assistant City Manager
CC:	Cynthia Boecker, Assistant City Manager Frank Reeb, Administrative Services Director Toni Wheeler, Director of the Legal Department John Miller, Staff Attorney
Date:	February 25, 2009
RE:	Freenet Request to Utilize City Right of Way at 23^rd and Harper

Please place the following item on the City Commission consent agenda for March 3, 2009:

Authorize Freenet to proceed with construction activities within the City right-of-way near the intersection of 23^rd and Harper, contingent upon the execution of an agreement to the satisfaction of the City for use of the right-of-way at no cost to Freenet and authorizing the City Manager to execute such agreement, if appropriate.

Background:

The City is in receipt of a request from Freenet for the temporary use of right-of-way near the intersection of 23^rd and Harper. Upon further discussion with Freenet, it was determined that Freenet was seeking to use the right-of-way for a longer duration than simply a temporary use. Freenet is planning a fiber optic cable link between a hard-line source available near the 23^rd Street/Harper intersection and the Harper water tower where it will tie in and provide internet service for the community wireless network. This hard-line connection to Kansas City would replace the company’s existing wireless connection. Freenet is also requesting that the right-of-way be utilized at no cost to Freenet, based upon the service it provides to the community.

Freenet has met the requirements to receive the temporary right-of-way permit. Approval has been received from Westar and the Kansas Department of Transportation.

Freenet is needing the temporary right-of-way permit as soon as possible in order to meet the construction timeline so that the new connection can commence April 1.

Discussion:

While Freenet has met the requirements for the temporary use of the right-of-way, because they will be utilizing the right-of-way beyond a temporary use, the City requires an agreement with Freenet that will address the conditions under which the use of the right-of-way is granted. Such an agreement protects the City by ensuring that the right-of-way use is utilized in a manner that minimizes any adverse impacts on the public by requiring reasonable time frames for repairs occurring within the right-of-way, outlining that the company is responsible for moving its facilities within the right-of-way in the event of future conflicts with public improvement projects, etc. A recent agreement of a similar nature was approved with Sprint Communications in 2008. That agreement is attached for reference.

Typically, the agreement would be required prior to granting the temporary right-of-way permit. However, in an effort to accommodate Freenet’s need to proceed with construction as soon as possible to meet the April 1 timeframe, City staff suggests that the temporary right-of-way permit could be granted, conditioned on the execution of an agreement as outlined above. Staff suggests that Freenet be provided until March 31 to execute an agreement with the City to be drafted to the City’s satisfaction, and which is similar to the previously referenced agreement with Sprint. In the event that the agreement is not executed, staff would suggest that Freenet be required to remove its cable in the right-of-way.

Staff recommends proceeding in this manner, which will enable Freenet to commence its project and still protect the City’s long-term interests. Whether the City would provide this right-of-way at no cost to Freenet is a policy decision for the City Commission.

Action Requested: