Overland Park balks at agreement

09/17/2013 6:14 PM

09/17/2013 6:14 PM

A liability concern has Overland Park wary of Google Fiber.

The city council on Monday night postponed its vote on an agreement with Google until its Oct. 14 meeting.

According to the agreement, Google intends to create a fiber optic network capable of Internet speeds of up to one gigabit per second within the city. It also may provide a Wi-Fi network and free service in public facilities, such as schools and libraries.

But the legal agreement contains an indemnity clause that made several council members nervous. The clause states that Google Inc. wants Overland Park to be responsible for defending the company in any potential lawsuit brought by a third party, if the city is at fault. But cities are normally protected by the Tort Claims Act, which states they cannot be sued for more than $500,000, said Overland Park City Attorney Mike Santos.

So the council asked Google to put a cap in the agreement stating the city will not be responsible for more than $500,000 in the event of a lawsuit.

Representatives for Google interrupted the council meeting for 30 minutes to discuss the issue, then told the council they didn’t feel comfortable changing the long-sought agreement on a whim. They asked for a continuance.

“I would prefer you table it and let us go through the negotiation process,” said Chase Simmons, the attorney representing Google. “I prefer not to have it changed on the podium. There are other people who should be in on this discussion.”

The indemnity issue disturbed some council members so much they said they weren’t sure if they would approve Google Fiber without the cap put in place.

“We normally don’t have that responsibility,” Councilman David White emphasized to the Google representatives. “We don’t want that risk. We’re not saying no to Google, we’re saying no to unlimited liability.”

In addition to the liability issue, the council had other concerns with the legal agreement.

A major sticking point was that the contract does not promise Google will create its fiber network in Overland Park at all. It just provides the opportunity, meaning Google can change its mind at any time.

If that does happen, “there will be a lot of disappointed people in Overland Park because of all the hype,” Councilman Dave Janson said. “I guess I’ll believe it when I see it.”

In response, Rachel Hack, community manager for Google in Kansas City, pointed out that Google had a stake in bringing its network to Overland Park.

“If we come out with an agreement, then that is a partnership to us,” Hack said. “That is something Google goes into seriously. We’ve been negotiating with the city for nine months because we want to offer our service to the citizens of Overland Park.”

Council members also were surprised by the demands Google had, such as using city infrastructure, property and assets to meet their needs. That, they said, would be a first for the city.

In the agreement, Google states it would pay fees to use the city’s underground conduits for its fiber network, place Wi-Fi equipment on light poles, and build Fiber Huts — buildings roughly the size of a one-car garage used to house electronic switches — around town, potentially on municipal property.

The Fiber Huts would go through the special-use permit process, Santos told the council.

The city also would waive fees for Google to place Wi-Fi equipment on light poles in exchange for offering free Internet service at public locations near neighborhoods where Google Fiber is sold to residents.

The council appeared reluctant to let Google to use its infrastructure, something that has not been allowed with service providers Time Warner, SureWest and AT&T.

“We have three fine service providers in the city and we want to make sure this document treats them all fairly,” said Mayor Carl Gerlach.

Santos noted that if the agreement with Google is passed, then other service providers will have the opportunity to ask for the same things in the future.

Council members were frustrated by Google’s vagueness on some issues.

Google representatives didn’t specify the parts of Overland Park it hoped to sell its service. Hack wouldn’t tell the council what specific qualities make neighborhoods a good fit for Google Fiber. Plus, there are no time elements throughout the document.

The company won’t specify when it would bring Google Fiber to Overland Park, if at all. Given its current rate of construction, it would likely be years away. And if it does end up bringing Google Fiber to the city, the company wouldn’t specify how much time it would take between installing the network for paying customers and providing free Internet service to public facilities.

Hack sympathized with the council’s concerns and told them that while she couldn’t provide a time line, she did know Google wanted to move quickly.

Despite their concerns and skepticism, most council members remained enthusiastic about wanting to bring Google Fiber to Overland Park.

“We’re interested and looking forward to Google Fiber because we are a technologically advanced city,” Mayor Carl Gerlach told the Google representatives. “But a normal partnership for Overland Park is based on trust, fairness, openness, and equality. We want Google Fiber, but we want to make sure we have a fair and equal partner.”

If Overland Park approves the agreement next month, it will be one of the last Johnson County cities to sign on for Google Fiber and one of the last major cities in the Kansas City market.

Lenexa city officials appeared to reach a tentative agreement that could clear the way for Google to sell the Internet and TV service. The council was scheduled to vote on the agreement Tuesday night, after 913 went to print. So far, only the Overland Park City Council has balked at deals negotiated with Google.

When the Prairie Village council considered the agreement last month, council members had similar complaints to Overland Park’s, but in the end, they approved it unanimously.

“We’ve all gotten emails. Our residents are excited,” said Council President Dale Warman at the time. “I don’t think they quite understand what cities are faced with if they agree to do this. But now this puts us in the position that we are the reason they’re being denied Google. They’ve put us between a rock and a hard place. I’m sure it’s not by accident that it turned out this way.”

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