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HomeMy WebLinkAbout1993-05-24 93-277 ORDERSUBSTITUTE COPT 93-2I7 AeeignedW CmmaOor Soucy, June 14, 1993 :,v "_�;p CITY OF BANGOR 4V (TITLE.)Y11er,..........._Application._for Utility.. Location.. Permit .............. -- AT&T Communications of New England, Inc. BE dm City CmeoU of Ow City ofBassor. ORDERED, THAT the attached Application for a Utility Location Permit is hereby granted subject to the following conditions: 1. The applicant shall amend its certificate of incorpo- ration as filed with the Maine Secretary of State to comply with 35-A M.R.S.A. S 2301. The applicant shall provide satisfactory evidence of such amendment to the City Solicitor's office prior to issuance of the requested Utility Location Permit. 2. The proposed underground fiber optic cable will be installed in a 4" diameter steel conduit, to be located as shown on Plans titled "Danforth -Bangor FT2 G 'A' Cable' (Plan No. FA 50233) and "Bangor -Portland FT2G 'A' Cable" Plan No. FA 5034) dated April 16, 1993, prepared by Survey and Mapping Consultants, Inc. Copies of these Plana are on file in the City Engineer's office. 3. Except at structure locations, installation of the new conduit in paved roadways, driveways, and parking areas shall be accomplished by boring or jacking methods rather than open trench excavation. 4. Installation of the proposed -underground fiber optic cable shall additionally counply with the requirements of Chapter VI, Article 8, Bangor City Ordinances. 5. The applicant shall pay all applicable street opening feesas provided in Chapter VI, Article 8, Bangor City Ordinances, including an inspection fee of 830.00 per day during project construction or as determined by the City Engineer. 6. The time and place of street opening and the location of the proposed underground fiber optic cable shall be specified in a written permit to be issued in advance of construction by the City Engineer, as provided in 35-A M.R.S.A. S 2508. 1. Upon completion of the installation, the applicant shall provide two complete sets of "as built" drawings or diagrams to the Bangor City Engineer's office, showing the final sive and location of the cable and all conduit, structures and appurtenances thereto, as installed, including the elevation of such cable, conduit, structures and appurtenances below street or shoulder grade. 8. The applicant shall execute a written waiver agreement, in a form acceptable to the City Solicitor, holding the City of Bangor harmless from direct claims by the applicant, or its successors, and by all affiliated business corporations o customers, for damage to or interruption of service along the underground fiber optic cable occasioned by ordinary negligence of the City, its employees or agents in conducting street maintenance, street repair, resurfacing, regrading, or relocation operations, or In excavating for any City of Bangor sewer, storm sewer or other City utility location or repair project. Such waiver may be conditioned upon the City of Bangor's prior compliance with all applicable provisions of the Maine "dig safe' statute, 23 M.R.S.A, S 3360-A. 9. Following installation, the underground fiber optic cable shall not be used to carry or transmit any cable television (CATV) or similar signals or to otherwise engage in the business of cable television broadcasting or any similar business made subject to municipal control, franchising, or regulation under Title 30-A M.R.S.A. S 3008 or other provisions of State or Federal law, without first giving sixty (60) days prior written notice to the City of Bangor of the applicant's intention to carry or transmit such signals or to engage in such business. If the underground fiber optic cable is used by the applicant or its successors for any such purpose, the applicant or its successors shall seek all necessary approvals under Federal, State and local law, regulations and ordinances, andshall negotiate a written franchise agreement with the City of Bangor in accordance with all applicable City ordinances and policies. 10. The Utility Location permit herein approved shall be deemed personal to the applicant, and shall not be transferred to any corporation, person or entity, nor shall ownership of the underground fiber optic cable and appurtenances to be installed pursuant to the Utility location permit be sold, conveyed, transferred or leased to any corporation, person or entity, unless such corporation, person or entity has first qualified, applied for and received a Utility location permit from the City of Bangor as provided in Title 35-A M.R.S.A. Chapters 23 and 25. cxx1B1T B ^�. �V iDDay Assigned to CouncJoT Saucy 24, 1993 CITY OF BANGOR (TITLE.) �ritET,___. Appl [ . for Def11Cy L cation ..1. P at A .11 T d 1. T C Icat ions, 1. By the City Council of city ofBatcor: ORDERED, THAT the attached ached Application for a Utility Location Permit is hereby granted subject tothe following conditions: 1. The proposed underground fiber optic cable will be installed in -a 4" diameter steel conduit, to be located as shown on Plans titled "Danforth - Bangor FT2 G 'A' Cables (Plan No. FA 50233) and "Bangor -Portland FT2G 'A' Cable" Plan No. FA 5034) dated April 16, 1993, prepared by Survey and Mapping Consultants, Inc. Copies of these Plans are on file in the City Engineer's office. - 2. Except at structure locations: installation of the n onduft in paved roadways, driveways, and parking areas shall be accomplished by baring or hacking methods rather than open trench excavation. 3. Payment of applicable street opening fees. 4. Execution of an appropriate license agreement and payment of a appropriate lice a a fee negotiated by the Applicant and the City Manager for occupying portions of City s rights-of-way. Said lice agreement and fee to be approved by the City Solicitor. A public notice of this Application has been published in the Bangor Daily News. exnlalT c (. Amired to Coumfla. CITY OF BANGOR (TIME.) Mrbtr........... Application -Eos- Utility -Location, Permit __..- -- AT&T Communications Of New England, Inc. By 614 C!h' Cound( of Ow all of Bonsor: ORDERED, THAT the attached Application for a Utility Location -. Permit is hereby granted subject to the following conditions: 1. The applicant shall amend its certificate of incorpo- ration as filed with the Maine Secretary of State to comply with 35-A M.A.S.A. 4 2301. The applicant shall provide satisfactory evidence of such amendment to the City Solicitor's office prior to issuance of the requested Utility Location Permit. 2. The proposed underground fiber optic cable will be installed in a 4^ diameter steel conduit, to be located as shown on Plans titled "Danforth -Bangor PT2 G W Cable' (Plan No. FA 50233) and "Bangor -Portland PT2G 'A' Cable' Flan No. EA 5034) dated April 16, 1993, prepared by Survey and Mapping Consultants, Inc. Copies of these Plans are on file in the City Engineer's office. - 3. Except at structure locations, installation of the new conduit in paved roadways, driveways, and parking areas shall be accomplished by boring or jacking methods rather than open trench excavation. 4. Installation of the proposed underground fiber optic cable shall additionally comply. with the requirements of Chapter Vi, Article 8, Bangor City Ordinances. 5. The applicant shall pay all applicable street opening fees as provided in Chapter VI, Article 8, Bangor City Ordinances, including an inspection fee of $30.00 per day during project construction or as determined by the City Engineer. - 6. The time and place Of street opening and the location of the proposed underground fiber optic cable shall be specified in a written permit to be issued in advance of construction by the City Engineer, as provided in 35-A M.R.S.A. S 2508. 'I. Upon completion of the installation, the applicant shall provide two complete sets of "as built" drawings or diagrams to the Bangor City Engineer's office, showing the final size and location of the cable and all conduit, structures and appurtenances thereto, as installed, including the elevation of such cable, conduit, structures and appurtenances below street or shoulder grade. S. The applicant shall execute a written waiver agreement, in a form acceptable to the City Solicitor, holding the City of Bangor harmless from direct claims by the applicant, or its successors, and by all affiliated business corporations o customers, for damage to or interruption of service along the underground fiber optic cable occasioned by ordinary negligence of the City, its employees or agents in conducting street maintenance, street repair, resurfacing, regrading, or relocation operations, Or in excavating for any City of Bangor sewer, storm s or other City utility location or repair project. Such waiver sewer be conditioned upon the City of Bangor's prior compliance with all applicable provisions of the Maine "dig safe' statute, 23 M.R.S.A. S 3360-A. 9. Following installation, the underground fiber optic cable shall not be used to carry or transmit any cable television (CATV) or similar signals or to otherwise engage in the business of cable television broadcasting or any similar business made subject to municipal control, franchising, orregulationunder Title 30-A M.R.S.A. 5 3008 or other provisions of State or Federal law, without first giving sixty (60) days prior written notice to the City of Bangor of the applicant's intention to carry or transmit such signals or to engage in such business. If the underground fiber optic cable is used by the applicant or its successors for any such purpose, the applicant or its successors shall seek all necessary approvals under Federal, State and local law, regulations and ordinances, and shall negotiate a written franchise agreement with the City of Bangor in accordance with all applicable City ordinances and policies. 10. The Utility Location Permit herein approved shall be deemed personal to the applicant, and shall not be transferred to any corporation, person or entity, nor shall ownership of the underground fiber optic cable and appurtenances to be installed pursuant to the Utility Location Permit be sold, conveyed, transferred or leased to any corporation, person or entity, unless such corporation, person or entity has first qualified, applied for and received a Utility Location permit from the City of Bangor as provided in Title 35-A M.R.S.A. Chapters 23 and 25. _ EXHIBIT D' SURSTISUTE COPY 93-277 _ Awianed to Councilor Soucy. June 14, 1993 CITY OF BANGOR (TITLE.) (Crba,.-.:...-Application ."for .Utility.Location..Perniit."........... . _.... - AT&T Communications of New England, Inc. BY Ow C4 CwacO Oft COY 9f Ban9w: ORDERED, THAT The attached Application for a utility Location Permit is hereby granted subject to the following conditions: 1. The applicant shall amend its certificate 0£ine0rpo- ration as filed with the Maine Secretary of State to comply with . 35-9 M.R.S.A.-5 2301. The applicant shall provide satisfactory -evidence of such amendment to the City Solicitor's officeprior to issuance of the requested Utility Location Permit. 2. The proposed underground fiber optic cable will be installed in a 4" diameter steel conduit, to be located as shown on Plans titled "Danforth -Bangor FT2 G 'A' Cable' (Plan No. FA 50233) and "Bangor -Portland FEES 'A' Cable' Plan No. FA 5034) dated April 16, 1993,prepared by Survey and Mapping Consultants, Inc. Copies of these Plans are on file in the City Engineer's office. 3. - Except at structure locations, installation of the new and ars shll be onduit in complishedabyaboringaor� jacking amethods rather than opena atrench excavation. 4. Installation of the proposed underground fiber optic cable shall additionally comply with the requirements of Chapter VI, Article 0, Bangor City Ordinances. - S. The applicant shall pay all applicable street opening fees as provided in Chapter VI, Article B, Bangor City Ordinances, including an inspection fee of $30.00 per day during project construction' or as determined by the City Engineer. IN CITY COUNCIL June 14, 1993 Emended by Substitution and Passed SUBSTITUE COPY AMENDED A True Copy. Attest CITY CLEUNK 6. The time and place of street opening and the location of the proposed underground fiber optic cable shall be specified in a written permit to be issued inadvance of construction by the City Engineer, as provided in 35-AM.R.S.A. S 2508. 9. Upon completion of the installation, the applicant shall provide two complete sets o£as built" drawings or diagrams to the Bangor City Engineer's office, showing the final size and location of the cable and all conduit, structures and appurtenances thereto, as installed, including the elevation of such cable, conduit, structures and appurtenances below street or shoulder grade. 8. The applicant shall execute a written waiver agreement, in a form acceptable to the City Solicitor, holding the City of Bangor harmless from direct claims by the applicant, or its successors, and by all affiliated business corporations --,- for damage to or interruption of service along the underground fiber optic cable occasioned by ordinary negligence of the City, its employees or agents in conducting street maintenance, street repair, resurfacing, regrading, or relocation operations, or in excavating for any City of Bangor sewer, storm sewer or other City utility location or repair project. Such waiveatp2ilbe conditioned upon the City of Bangor's prior compliance with all 'applicable provisions of the Maine .'dig safe" statute, 23 M.R.S.A. 5 3360-A. 9. Following installatio , the underground fiber optic - cable shall not be used to car or tra emit any ca Is television (CATV). or almilar signals or o othena as engage i the business of cable television broadcasti or any impar bus ass made subject to municipal control, fee OF, regulatio under Title 30-A M.R.S.A. g 3008 or other to isio f ate Federal law, without first giving a ty 44) or itten notice to the City of Bangor of th ap a Itt tto carry or transmit such signals or to ngau r as. If the underground ea fiber optic cable is u bapplicant or its successors for any such purpose, the applicanto its s shall seek all necessary approvals under Federal, successors local law, regulations and ordinances, and shall negotiate a written franchise agreement. with the City of Bangor in accordance with all applicable City ordinances and policies. 50.. The Utility L0T n Be i ved shall be - deemed personal to th a t t a transferred to any corporation, per n or en a o ership of the underground fiber o b e nd. ap risen a to be installed pursuant to the Or it Loca 0n 'Pe it be ld, conveyed, transferred or Is sed to an corp ation, erson or entity, unless such corporatie person anti y has ff at qualified, applied for and received a tility L cation Permit from the City of Bangor as provided in Title 35-A M.R.S.A. Chapters 23 and 25. 9, and 10. AMENDED ON FOLLOWING PAGE 93-2)] 9. If applicant intends to utilize the underground fiber optic cable to carry or transmit any calbe television (CAIV) or similar signals Or to otherwise engage in the business of cable television broadcasting or any similar business made subject to municipal control franchising, or regulation under Title 30-A M.R.S.A. 5 3008 or other provisions of State or Federal lav, then applicant shall give sixty (60) days prior written notice to the City of Sanger of such intention cc carry o transmit such signals or to engage such business. If the underground fiber optic cable is used by the applicant or its successors for any such purpose, the applicantr Its ¢ shall seek all necessary approvals under Federal, State and local lave regulations and ordinances and shall negotiate a written franchise agreement with the City of Bangor in accordance with all applicable City ordinances. - 10. The Utility Location Permit herein approved shall be deemed personal to the applicant and may only be transferred t "public utility' as that term is defined 1n Title 35-A M.R.S.A. Chapters 23 and 25. ownership of the underground fiber optic cable and appurtenances to be installed pursuant to the Utility Location Permit may not be sold, conveyed, transferred of leased to any corporation, person o entity, nunless such corporation, person or ntity qualifies as a "public utility" under .Title 35-A M.R.S.A. Chapters. 23 and 21. STATE OF MAINE Docket No. 89-275 PUBLIC UTILITIES COMMISSION October 16, 1991 AT&T COMMUNICATIONS OF NEW ORDER APPROVING STIPULATION ENGLAND, INC. Re: Application To Provide Custom Network Services In Maine GOROON, Chairman) PAINE, Commissioner on October 9, 1991 AT&T Communications of New England, the Commission staff and the Publio Advocate and New England Telephone & Telegraph company filed a Stipulation settling the issues in this docket. We approve the Stipulation. The stipulation makes a general finding of public convenience and necessity and.grants general authority for AT&T Communications of New England to provide service in Maine without geographic restriction. -(AT&T had previously. been granted authority to provide intrastate service to the federal government under the FTs 2000 System). The Stipulation also Approves terms and conditions for Custom Network Services generally, and schedules for Software Defined Network (SDN) services. The proposed AT&T terms and conditions contain language which limits AT&T's liability and damages in cases of harm that may be caused by service provided under these schedules. We have approved many such limitations in the pact. We have never adopted any general policies concerning the circumstances in Which and the extent to which utilities, in their schedules approved by this Commission, should be able to disclaim or limit liability and damages to customers or to third persons, where their service may have caused herrn. We are presently exploring preliminarily whether we should investigate these issues in detail, with the goal of adopting uniform policies which would strike a proper balance among the interests of individual harmed customers, ratepaying customers as a whole and investors. see Notice of Summaryo ofOtility Tariffs which Limit tiability, Docket No. 88-74. During the month of September, AT&T filed a tariff for an additional service (Docket No. 91-247). AT&T and Staff agreed that this tariff should not be considered filed until the approval, by this Order, of its general Operating authority. Therefore, the filing date for the schedules filed in Docket No. - 91 -247 shall be the date of this Order. We have reviewed the terms of the Stipulation and the attached schedules and find them to be reasonable and hereby ` / approve them. - 4 -2- Docket No 89-375 Wherefore, it is O R D E R E D 1. That the public convenience and necessity require the service of AT&T Communications of New England, Inc., throughout the State of Maine and it is hereby authorized to provide that service pursuant to schedules, terms and conditions approved by this Commission; and 2. That the schedules, terms and conditions for Custom Network Services and Software Defined Network Services, filed with this Commission on October 10, 1991, are found to be just and reasonable and are hereby approved. _ Dated at Augusta, Maine, this 16th day of October, 1991. A true copy. Attest; Charles A. Jacobs' Administrative Director COMMISSIONERS VOTING FOR: Gordon Paine W BY ORDER OF THE COMMISSION Charles A_ aacoby _ Charles A. Jacobs Administrative Director l i NOTICE OF RIGHTS TO REVIEW OR APPEAL 5 M.R.S.A. g 9061 requires the Public Utilities Commission to give each party to an adjudicatory proceeding written notice of the party's rights to review or appeal of its decision made at the conclusion of the adjudicatory proceeding. The methods of review or appeal of PUC decisions at the conclusion of an adjudicatory proceeding are as follows: 1. Reconsideration of the Commission's Order may be requested under Section 1004 of the Commission's Rules of Practice and Procedure (65-407 C.M.R.110) within 20 days of the data of the Order by filing a petition with the Commission stating the grounds upon which reconsideration is sought. 2. Anneal of a final decision of the Commission may be taken to the Law Court by filing, within 30 days of the Hate of the order, a Notice of Appeal with the Administrative Director of the Commission, pursuant to 35-A M.R.S.A:- 9 1320(1)-(4) and the Maine Rules of Civil Procedure, Rule 73 at seg. 3. Additional court revis of constitutional issues o issues involving the justness or reasonableness of rates may V be had by the filing of an appeal with the law Court,, Pursuant to 35-A M.R.S.A. 5 1320(5). Note: The attachment of this Notice t0 a document does not indicate the Commission's view that the particular document may be subject to review or appeal. Similarly, the failure of the Commission to attach a copy of this Notice to a document does not indicate the Commission's view that the document is not subject to review or appeal. CJSTATE OF MAINE Docket No. 89-3'/5 PUBLIC UTILITIES COMMISSION •October 9:., 1991 AT&T COMMUNICATIONS OF NEW STIPULATION ENGLAND, INC. Re: Application for Certificate of Public convenience and Necessity 1. On October 12, 1989, AT&T Communications Of New England, Inc. ("AT&T') filed a petition requesting that the Commission find that the public convenience and necessity required that it be allowed to provide intrastate service in the State of Maine. Previously, in Docket NO. 89-1I, AT&T had reguested and the Commission had granted authority under 35-A M.R.S.A. 95 2102 and 2105 to provide FTS 2000 service to United Statesgovernment facilities throughout the state. AT&T's petition in this docket was also filed pursuant to 35-A M.R.S.A. 9 2102 and Chapter. 280 of the Commission's rules. As filed, it requested authority only to provide Software Define Network service (SDN). With its application, AT&T filed a proposed schedule of rates, terms i V and conditions for SDN. 2. On October 30, 1990, AT&T filed a letter requesting that its Application not be limited to SDN service but encompass the provision of any and all AT&T intrastate servicesthatit may offer subsequently pursuant to rate schedules or contracts approved by the Maine Commission. The parties agree that upon approval of this stipulation AT&T may provide interexchange service pursuant to approved schedules, terms and conditions within the State of Maine. 3. The parties agree that AT&T's application substantially complies with Chapter 200, g 4(B)(2) and (3)- 4. The parties; agree that the Commission should find that the Provision of intrastate service by AT&T is in the public interest, subjeact to the conditions stated below. S. AT&T agrees that it will pay access charges to local carriers as provided in MET'S and the independent local exchange companies' (LECs) applicable accessschedules and u pursant to Chapter 280 of the Commission's rules. AT&T is familiar with and agrees that it will abide by all Provisionu Of the LECs' access schedules and Chapter 280. 6. `-� AT&T agrees tlut it will provide gulltcrly Percent Interstate usage (PTU) reports to the LECs as required in the LECs' ecce.^.n tariffs. Where the LEC or AT&T is actually unable to determine the jurisdiction or time of day period + -2- Docket No .,@9-375 for the access minutes because neither the LEC nor AT&T measures, the same PIU and time or day distribution that results from all measured traffic will apply to the unmeasured access minutes of use. AT&T agrees to maintain the billing data from which the PIU is Calculated for six months, and to provide the results of any third party audit of. AT&T's Jurisdictional Reporting System to the commission or any affected LEC 'upon request. The PIU Reports and supporting Hata will be made available to the Commission Staff upon request. 7. For purposes of reporting Percent Interstate Usage (PIU) as provided in paragraph 6, AT&T agrees, in accordance with 47 U_S.C. 9 153(e)(3)0 subject to the entry -exit surrogate method adopted by the Joint Board and approved by the Federal Communications Commission, that all traffic that both originates and terminates in Maine shall constitute intrastate traffic, even though the routing of some of these communications may be through another state. e. AT&T agrees that it shall provide the Commission with an Updated facilities diagram whenever a reasonably substantial change is made to its facilities inside Maine, Or outside Maine whenever the change outside Maine will have a substantial effect on service in Maine and whenever it.files tariff, to provide. additional services in Maine. 9. AT&T agrees that it wy1l comply with all apP11cable Public Utilities commission rules including chapters e1 and 06. 10. The parties agreethat AT&T's replacement schedule of rates and terms and conditions (attached to this stipulation and replacing those filed in this docket on October 12, 1969), applicable to Custom Network Services for business customers and providing for SDN service, shall be approved upon approval of this Stipulation by the Commission, and further agree that approval by the Commission is not intended to constitute state action for the Purpose of any antitrust claim. 11.. If not accepted by the Commission in accordance with the Provisions hereof, this Stipulation shall not prejudice the positions taken by any party on any issue before the Commission in this proceeding and shall not be admissible evidence therein or in any other proceeding before the. comm.iesion. 12. The Parties intend that this Stipulation be considared by the Commission for adoption as an integrated sOlOtion t0 the issues it addresses and shall be null slid void and shall net bind the parties in this proceeding if the Commission doe:: not accept it. without material modification. -3- Docket No §y, 375 13. The parties hereby waive the prohibition against ex parte communication between the staff and the Commission to the full extent necessary to allow Staff presentation of this Stipulation to the Commission. Dated: September 24, 1991 Dated: zaptomber 1991 �Ot /�3 zG Peter G. Dallou Deputy General Counsel Maine Public Utilities Commission X" U^"^' Larry M. Devldow AT&T Communications of New England, Inc. Dated: September , 1991: 1 Richard Owens Attorney New England Telephone hated: September , 1.991 Gilliam --" Puberal counsel ' Public Advocate CERTIFICATE OF SERVICE I, Roger L. Huber, counsel for AT&T Communications of New England, Inc., hereby certify that on this date I have caused one copy of the foregoing Appeal to be served upon Russell McKenna, Clerk, City of Bangor, by depositing said copy in the United States mail, postage prepaid. Dated at Bangor, Maine this ?S, day of June, 1993. S-\�Lkr Roger L. Huber, Esq. EATON, PEABODY, BRADFORD & PRAGUE, P.A. P.O. Boz 1210 Bangor, Maine 04402-1210 EATON, PEP B aD V. BRADFORD & VEAOV E: P. A, gnvyB n/✓:' d"01A. NASA 01,61-1210 LI I IW Ji+ i r : ,.w S,,I.., 11 ISO SWA.A..A'.: ...... DEtA;?fu:ENi? .A...,i....A..,.AO. .n.,... n,. 01."SJune 14, 1993 Erik H. Stumpfel, Esquire City Solicitor . City Of Bangor - 73 Harlow Street - Bangor, Raine 04401 Hand Delivered RE:AT&T Communications of New England, Inc./Application for Utility Location Permit/Revisions to draft City Council order Dear Erik: As we discussed, following are our proposed revisions to the Order of the Bangor City Council pertaining to the above- mentioned application: 1. Strike paragraph No. a in its entirety because it is inconsistent with the mandates of State law. The City is precluded by State law to require such a condition either as a permit condition or Be a condition of permit issuance. Accordingly, AT&T objects to its inclusion in the City 'Council's Order. If, however, you intend to include the paragraph in the final Council Order, we ask that you amend it at follows in order to be consistent with prior dis suasion: a. Strike the reference to `or customers" in the fourth and fifth line of the paragraph. AT&T's liability to its customers is limitedpursuant to federal law and, therefore, there is no basis for requiring that AT&T indemnify the City against, such claims. Erik M. Stumpfel, Esquire City solicitor City of Bangor June 16, 1993 Page Two b. Replace the word -may- in the tenth line of the paragraph with 'shall. - 2. Aman paragraph No. 9 as follows: If applicant intends to utilize the underground fiber optic cable to carry or transmit any cable television (MTJI or similar signals at to otherwise engage in tha. business of cable television broadcasting or any similar business made subject to municipal control, franchising, or regulation under Title 30-A M.R.S.A. 5 300E or other provisions of State or Federal law, then applicant shall give sixty (60) days prior written notice to the City of Bangor of ouch intention to carry or transmit such signals or to engage in such business. If the underground fiber optic cable is used by the applicant or its successors for any such purpose, the applicant or its successors shall seek all necessary approvals under Federal, State and local law, regulations and ordinances, and shall negotiate a written franchise agreement with the City of Bangor in accordance with all applicable City ordinances. 3. Amend paragraph 10 as follows: The Utility Location Permit herein approved shall be deemed parental to the applicant and may only be transferred to a.^public utility+ as that term is defined in Title 35-A M.R.S.A. Chapters 23 and 25. Ownership of the underground fiber opticcable and appurtenances to be installed Formosan to the Utility Location permit may not be sold, conveyed, transferred r leased to any, corporation, person or entity, unless such corprration, person or 'entity qualifies as a ,public utilitym under Title 35-A M.R.S.A. Chapters 23 and 25. Erik M. Stump£el, Esquire .. City solicitor City of Bangor ,Tune 19, 1993 Page Two b. Replace the word "may" in the tenth line of the paragraph with "shall." 2. Amend paragraph No. 9 as follows: If applicant intends to utilize the underground fiber optic cable to carry or transmit any cable television (CATV) or similar signals or to otherwise engage in the business of cable television broadcasting or any similar business made subject to municipal control, franchising, or regulation under Title 30-A M.R.S.A. § 3008 or other provisions of State or Federal law, then applicant shall give sixty (60) days prior written notice to the City of Bangor of such intention to carry or transmit such signals or to engage in such business. if the underground fiber optic cable is used by the applicant or its successors for any such purpose, the applicant or its successors shall seek all necessary approvals under Federal, State and local law, regulations and ordinances, and shall negotiate a written franchise agreement with the City of Bangor in accordance with all applicable City ordinances. 3. Amend paragraph 10 as follows: The Utility Location Permit herein approved shall be deemed personal to the applicant and may only be transferred to a "public utility" as that term is defined in Title 35-A M.R.S.A. Chapters 23 and 25. Ownership of the underground fiber optic cable and appurtenances to be installed pursuant to the Utility Location Permit may not be sold, conveyed, transferred or leased to any corporation, person or entity, unless such corporation, person or entity qualifies as a "public utility" under Title 35-A M.R.S.A. Chapters 23 and 25. S. The time and place of street opening and the location of the proposed underground fiber optic cable shall be specified in a written permit to be issued in advance of Conetruetion by the City Engineer, as provided in 35-A m.R.S.A. S 2508. 1. Upon completion of the installation, the applicant shall provide two complete seta of 'as built" examine Or diagrams to the Bangor City Engineer's office, shoeing the final sire and location of the cable and all conduit, structures and appurtenances thereto, as installed, including the elevation of such table, conduit, structures and appurtenances below street or shoulder grade. 8. The applicant shall execute a written waiver agreement, In a form acceptable to the City Solicitor, holding the City of Bangor harmless from direct claims by the applicant, or Its successors, and by all affiliated business corporations o for damage to or interruption of service along the underground fiber optic cable occasioned by ordinary negligence of the City, its employees or agents in conducting street maintenance, street repair, resurfacing, regrading, or relocation operations, or in excavating for any City of Bangor sewer, atom sewey„8q other City utility location or repair project. Such waiver y e conditioned upon the City of Bangor's prior eomplianne with all applicable provisions of the Maine -dig safe" statute, 23 m.R.S.A. S 3360-A. tallaties, the underground Liber optic t0 carry Or transmit any Cable television e n� to nMe'wtm annane in the business of m.R.b.A. 5 lose or ether provisions oI state or reaeral law, without first giving sixty (60) days prior written notice to the City of Bangor of the applicant's intention to carry or transmit such signals or to engage in such business. If the underground fiber optic cable is used by the applicant on its successors for any such purpose, the applicant or its successors shall seek all necessary approvals under Federal, State and local law, regulations and ordinances, and shall negotiate A written franchise agreement with the City of Bangor in accordance with all applicable City ordinances and policies. 16. The Utility Location Permit herein approved shall be deemed personal to the applicant, and shall not be transferred to any corporation, person or entity, nos shall ownership of the underground fiber optic cable and appurtenances to be installed pursuant to the Utility Location permit be sold, conveyed, transferred or leased to any corporation, person orentity, unless such corporation, parson or entity has first qualified, applied for and received a Utility Location permit from the City of Bangor a0 provided in Title 35-A M.R.S.A. Chapters 23 and 25. Before the PENOBSCOT COUNTY BOARD OF COMMISSIONERS AT&T CENGLAID, IONSNC. OF ) NEN ENGLAND, INC., 1 Appeal from corporation organized and 1 Decision of licensing ratios under the laws of the ) Authority Pursuant State of New York, 1 Title 35-A M.R.S.A. 525033( (13) Appellant ) V. ) CITY OF BANGOR, a municipal ) corporation ionated in 1 Penobscot County, State of 1 Maine, Appellee. ) 1 NOW COMB AT&T Communications of New England, Inc., by and through its attorneys, Eaton, Peabody, Bradford & veague„ P.A., and appeals the decision of the Bangor City Council to conditionally grant an underground utility location permit pursuant to Title 35-A M.R.S.A. 35 2501 et Seq. .NRISDICTION The Penobscot County Board of Commissioners is authorized to hear this appeal pursuant to Title 35-A M.R.S.A. S 2503(13). The statute authorizes de novo review by the Commissioners. Id.; Town of Windham v , 537 A.2d 216 (Me. 1988). INTRODUCTION Maine law grants public utilities the absolute right to construct their lines under the public ways of any municipality, provided the utility first obtain an underground utility location permit from the municipality. Maine law also strictly limits the types of conditions which municipalities can impose on public utilities in connection with the issuance of underground utility location permits. Under State law, municipalities can only impose conditions which are related to public safety and the use of the right-of-way so as not to obstruct use for public travel. AT&T Communications of New England, Inc. (hereinafter "Appellant") seeks to locate a fiber optic cable beneath certain public rights-of-way in the City of Bangor. The Bangor City Council recently approved Appellant's underground utility location permit request. That approval, however, was conditioned upon Appellant agreeing to hold the City harmless for damage to the cable resulting from the negligent acts of. the City's employees and agents. That condition is simply unrelated to public safety or the use of the right-of-way and, therefore, is violative of State law. Accordingly, Appellant takes this appeal to the Penobscot County Board of Commissioners to have the condition of permit issuance relating to execution of a hold harmless agreement stricken in its entirety. ISSUE whether State law prohibits the City from requiring that Appellant agree to hold the City harmless 'from the negligent acts of City employees and agents because such a condition is unrelated to public safety and the use of the right-of-way so as not to obstruct use for public travel? P TB Appellant is proposing to construct, maintain, and operate approximately 9.9 miles of fiber optic cable beneath certain public ways in the City of Bangor. The proposal is a small, but significant, portion of a much larger project which will provide the citizens of Bangor, Penobscot County, and the State of Maine with ^cutting edge' long distance telecommunications capabilities. The facilities, as approved by the City Engineer and Bangor City Council, will consist of a single four -inch steel pipe containing two 1.5 inch PVC innerducts. One ilmerduct will contain a single fiber Optic cable. The other innerduct will be reserved for maintenance and repairs. The facilities will be buried within the limits of the public ways identified in Appellant's application to the City of Bangor. See Exhibit A. Importantly, however, the facilities will generally be located outside the part of the public ways customarily used for vehicular traffic. The underground utility location permit application was filed with the City on April 16, 1993. Cases Ring, City Engineer, reviewed and approved the project design, subject to two important modifications aimed at addressing public safety issues. First, the original design location was modified to accommodate City sewer lines and to maintain a SO foot separation from all water lines. Second, Appellant agreed to coordinate its construction schedule t0 coincide with road improvement projects (i.e., paving) planned by the City, thereby reducing any impact to public travel. The City. Engineer's approval paved the way for City Council approval. The Bangor City Council initially addressed the permit request on May 24, 1993. A copy of the City Council's May 24, 1993 draft Order, prepared by the City's Legal Department, is attached as Exhibit B. That original draft Order contained a condition that Appellant enter into an agreement with the City to indesmlfy the City against any claims arising out of the existence of the cable beneath the public ways. Me Order also required Appellant to pay a "licensing fee," a fee never before charged by the City. rhe Appellant attended the City Council's May 24th meeting and sought approval of the Order without the Above stated conditions. The Council, instead, voted to send the permit request to the City Council's Municipal Finance Committee for further review. After extended discussions, the City conceded that State law prohibited the imposition of permit conditions unrelated to public safety and use of the right-of-way so as not to obstruct use for public travel. Accordingly, it dropped its demand for a licensing fee. However, the City contradicted itself by staying the course on the requirement that Appellant agree to indevmify the City against any and all claims arising out of the existence of the cable beneath the public ways. On or about June 10, 1993, Appellant received a revised draft Council Order prepared by the City's Legal Department. A copy of that Order is attached as Exhibit C. That Order contained a number of conditions. All of the conditions are permissible under State law, except the condition relating to 4 Appellant's obligation to enter into a written agreement to hold the City harmless from the negligent acts of its employees and agents. On June 14, 1993, the Bangor City Council voted t0 grant Appellant an underground utility location permit. Despite Appellant's request, however, the Council refused to Strike the requirement that Appellant agree to hold the City harmless for the negligent acts of its employees and agents. A copy of the final Order is included as Exhibit D. Appellant is concerned that the City's inclusion of a condition contrary to State law could, and most likely would, be used by other municipalities to impose other, perhaps more onerous, permit Conditions. The Maine Legislature, apparently, was similarly concerned as evidenced by the provision of State law Severely restricting the scope of permissible conditions. The residents of the City of Hanger, Penobscot County, and the State Should be equally concerned given that such unchecked power exercised by a single municipality could conceivably impede the development of important technological advancements of direct benefit to Maine residents. Consequently, Appellant appeals to the Penobscot County Board of Commissioners pursuant to Title 35- A M.E.S.A. 5 2503(13) for relief from this condition of permit issuance. 5 DISCUSSION STATE LAW PROHIBITS THE CITY FROM REQUIRING THAT APPELLANT AGREE TO HOLD THE CITY HARNLESS FROM THE NEGLIGENT ACTS OF CITY EMPLOYEES AND AGENTS BECAUSE SUCH A CONDITION IS UNRELATED TO PUBLIC SAFETY AND THE USE OF THE RIGHT-OF-WAY SO AS NOT TO OBSTRUCT USE FOR PUBLIC TRAVEL. The argument is simple. State law grants Appellant the absolute right to locate its facilities in the public way. That same law strictly limits the types of conditions that municipalities can impose on that right. The condition imposed by the City of Bangor requiring that Appellant agree to hold the City harmless for damage to the cable caused by the negligent acts of City employees and agents clearly exceeds the limitations imposed by State law and, therefore, must be stricken in its entirety. A. Appellant Hae The Absolute Right Under State Law To Locate Its Facilities In The Public Way. Under Maine law, public u-___— - enjoy the right to construct their lines under the roads and streets of any municipality. 35-A M.R.S.A. Chapters 23 and 25. Specifically, the law provides that [p]ublic utilities may, in any municipality, place their pipes and appurtenances, wire and cables and all conduits and other structures for conducting and maintaining the pipes, wires and cables under the surface of those streets and highways in which the utilities are authorized to obtain locations for their pipes and appurtenances, poles, and wires, subject to the written permit of the [municipal officers] . A vermit most he obtained under sections 2501 to 25ofl_ 35-A M.R.S.A. S 2307 (emphasis added). The term "public utility" includes every corporation ^owning, controlling, operating, or 6 managing any telephone line for compensation within this State." 35-A M.R.S.A. S 102(20). Appellant is a 'public utility" under Maine law because it "owns, controls, operates, and manages" telephone lines for compensation within the State of Maine. The issue of whether Appellant qualifies as a public utility is not disputed by the parties The law cited above restricts a public utility's right to lay its pipe and cable to "those streets and highways in which the utilit[y is] authorized to obtain locations for [its] pipes, appurtenances, poles and wires." 35-A M.R.S.A. 52307. Maine's public Utilities Comedesion has granted the Appellant "general. authority . . . to provide service in Maine without geographic restriction.' ggg Exhibit E. Accordingly, the Appellant is entitled, by law, to place the proposed fiber optic cable beneath the streets and highways of Bangor, subject to a written permit issued by the City in accordance with State law (i.e. 35-A M.R.S.A. SS 2501-2508). B. es of Vgnditions which Me Cityn Im The Abbellant M.R.S.A. Chapter 25 All corporations engaged in the business of the tranemlesion of communications are Subject to the duties, restrictions and liabilities prescribed in Chapter 25. 35-A M.R.S.A. S 2501(1). Under Chapter 25, [n]o person may construct facilities upon and along highways and public roads, without applying for and obtaining a written location permit from the [local municipality]. Included within this requirement is 7 every person operating . telephones . and any other person engaged in telecommunications. 35-A M.R.S.A. S 2501(2) - Chapter 25 details the exclusive procedure for securing a permit to locate facilities in the public way. 35-A M.R.S.A. S 2503. Specifically, Chapter 25 law provides that Exclusive method. Compliance with this section by any person is the exclusive method of obtaining the rights and privileges conferred in this section and n r cooperativewith respect to person e locationofits facilities� to caly with or bg gy iFject to any other law, including, but not limited to [Title 30 M.R.S.A. SS 4991 et seq.1. 35-A M.R.S.A. 5 2503(20) (emphasis added). Consequently, an applicant for an underground utility location permit cannot be compelled to comply with any conditions or requirements which exceed the limitations imposed by Chapter 25. Chapter 25 addresses a number of issues related to permit issuance, including: (1) application form; (2) notice; (3) objections; (4) hearing; (5) liability; and (6) alterations and relocation. With respect to permit conditions, Chapter 25 specifically provides that [tlhe location permit shall specify the approximate location of the facility and the minimum depth of any pipes or conduits below . the earth's surface. The local ni lit specify reauipe�ts determined necessary in the best interests of the publicf f the right-of-way not to obstruct use for public travel. 35-A M.R.S.A. @2503(5)(emphasis added). The Maine Supreme Judicial Court has consistently declared that a deliberative body's first task when interpreting a statute is to ascertain the real purpose of the legislation. °f= generally State v. Niles, 585 A.2d 181 (Me. 1990). Once the purpose of the legislation is found, the deliberative body should give effect to it, avoiding results that are absurd, inconsistent, unreasonable, or illogical, if the language of the statute is fairly Susceptible to such construction. $d. The real purpose of the statute limiting the conditions which a municipality can impose on a public utility in connection with a utility location permit is grounded in public policy. Sound public policy supporta limiting the types of conditions which a municipality can impose upon a public utility to those conditions determined necessary for public safety and use of the right-of-way for public travel. First, public utilities, by definition, provide the citizenry with important and essential services. The continued flow of these essential services could easily be jeopardized if municipalities were unrestrained in their ability to impose permit conditions on public utilities. For example, a utility may elect not to upgrade existing facilities because of the uncertainty surrounding the demands that an affected municipality may extract. Moreover, unchecked municipal regulation would likely result in increased service fees to all customers. Municipalities should not and, indeed, by law, cannot impose any condition they so desire._ Obviously, public safety and continued use of the right-of-way so as not to obstruct travel are vitally important to the local residents and, indeed, to the State. Accordingly, the statute specifically allows the imposition of conditions strictly addressing those issues. Second, the cost of services provided by public utilities is borne by the public. Consequently, it is in the public's best interest for such utilities to be able to develop their technological infrastructure as cost effectively as possible. In order to accomplish this, however, utilities moat be able to calculate the entire cost of a project prior to comencing that project, and invest accordingly. If municipalities are allowed to impose permit conditions without limitation, then public utilities will be unable to forecast accurately the potential coat of any given project. AS a result, public utilities may undertake projects which appear at the outset to benefit the public but which, because of the actions of certain municipalities, may wind up costing the rest of the County and State unnecessary service fees. Squally unfortunate would be the situation where the utility simply elected not to undertake a given project for fear of being held hostage by a municipality's unlawful demands. The County and the State could easily suffer from the Shortsightedness of a few municipalities. Third, Appellant's project, like vany similar utility' projects, is being constructed in two different directions. Construction is on-going in a northerly direction and in a southerly direction. If municipalities were unrestrained in their ability to impose permit conditions, then the municipality representing the final "link" (and, indeed, any municipality) could (and, moat likely would) require the payment of an 10 exorbitant fee or other such unlawful demand. In Such a case, the utility's options would be to either accede to the municipality's demands or abandon the project altogether. The cost of such additional conditions could easily surpass the benefits derived by the project, both by Applicant and the public. The Maine legislature certainly did not intend this result. The Maine Law Court has also stated that in order to determine legislative intent in relation to a particular provision of a statute, the deliberative body should consider the entire statutory scheme employed by the legislation. Freeport Minerals Co. v Inhabitants o£ To , 437 A.2d 642 (Me. 1981). Chapter 25 is drafted to favor the issuance of a permit without conditions. For example, if a municipality does not issue a permit within 60 days from the date the application is submitted, then a permit is deemed to have been issued. Very few Maine statutes, if any, deem a permit to issue in the event a governmental agency fails to act on the permit request. The approach adopted by the Legislature in Chapter 25 evidences the Legislature's intention that public utilities not be stalled, or otherwise thwarted, in their efforts to provide essential services to the residents of Maine. The Maine Legislature clearly and emphatically declared that Chapter 25 provides the exclusive method for securing the rights and obligations conferred by that section and that utilities cannot be required to comply with any other law with regard to 11 location of its facilities. The Legislature also unequivocally declared that the only permissible conditions are those relating to public safety and use of the right-of-way, so as act to obstruct use for public travel. The Legislature, for legitimate public policy reasons, left no opening for a municipality to impose any other conditions, much lees those simply relating to financial matters. If the City is unhappy with the limits imposed by the statute, than its only recourse is to seek to amend the law. Interestingly, the City Solicitor apparently recognizes the weakness of the City's position and has suggested that the City may actually approach the Legislature for relief from the limitations imposed by Chapter 25. C. The Condition of Permit Issuance Relating to Execuli= Of a Hold Harmless Agreement Imposed By The City Par ExTeads the Limitations As noted above, Chapter 25 specifically provides that (t]he location permit shall specify the approximate location of the facility and the minimum depth of any pipes or conduits below . the earth's surface. Th€ [local mumicipalityl y specify in the Permit other n the best interests e Xight-gf-way so as not to obstruct use for public travel. 35-A M.R.S.A. 52503(5)(ecphasis added). The location permit application submitted by the Appellant clearly specifies the location of the facility and the minimum depth of all pipes below the earth's surface. See Exhibit A. As noted, the final Order approved by the City Council contains a number of conditions in addition to the hold harmless condition. These additional conditions are either related to 12 public safety or use of the right-of-way or are simply restatements of the law. For example, the City Engineer proposed, and the City Council approved, a permit condition requiring that the installation of the new conduit in paved roadways, driveways, and parking areae shall be accomplished by boring or jacking methods rather than open trench excavation. This condition is obviously related to public safety concerns and, therefore, is permitted under Chapter 25. The Appellant does not contest the imposition of this condition, but merely cites it as an example of a permissible condition. Moreover, as noted above, public safety concerns were fully addressed between Appellant and the City Engineer prior to the application even being submitted to the City Council. The condition of permit issuance relating to the hold harmless agreement, however, is not even remotely related to public safety or the use of the right-of-way so as not to obstruct use for public travel. In fact, the hold harmless requirement Is very similar to the licensing fee initially demanded by the City in that they both focus squarely on financial issues, not issues of public safety or the use of the right-of-way for public travel. Recall, the City retracted its demand for a licensing fee in recognition of the fact that such a condition exceeds the limitations imposed by Chapter 25. The City has taken the position that the hold harmless requirement is related to public safety because the City may not undertake certain road improvement activities for fear of 23 damaging the cable, thus causing the road to fall into an unsafe condition. This argument has a number of significant shortcomings. First, the cable will be located four feet below the surface of the ground. Most, if not all, road improvement activities occur well above this level. Indeed, any road improvement project requiring excavation to a depth of a feet would be a major undertaking requiring massive recontouring of entrances to local residences and businesses. second, the `public safety" issues surrounding this project were fully addressed by the City Engineer prior to the application even being submitted to the City Council. As noted above, the original design location was modified to accommodate the City's sewer line and to maintain a 10 foot separation from all water lines. Moreover, Appellant offered to coordinate its construction schedule to coincide with the City's planned road improvement projects. These modifications, the coat of which. will be borne solely by the Appellant, mollify any public safety Third, the proposed cableinstallation constitutes a drastic improvement over existing practices. For example, Appellant currently provides long distance service over cables owned by New England Telephone Cmspany (NET). Those underground cables are located in the City's public ways. However, those underground cables are located at depths ranging from 2.5 to 4 feet, and averaging 3 to 3.5 feet. Moreover, those cables are only protected by PVC piping, not steel and PVC as proposed by 14 Appellant. Consequently, Appellant's proposal to locate its cables 4 feet beneath the surface in a steel conduit is a vast improvement over existing methodologies and, more importantly, addresses all reasonable public safety issues. Fourth, the Maine Dig Safe System, of which both the City and Appellant are members, requires that the City notify the -System" prior to any excavation. The -System," in turn, notifies the Appellant of the planned excavation and the Appellant is required, by law, to,mark the boundaries of the cable. The Appellant's practice, however, is to actually be on- site during the excavation. Consequently, the likelihood that a cable located four feet beneath the surface will be damaged is minimal, except by acts of willful misconduct or groes negligence. The City is not seeking an indemnification from acts of willful misconduct or gross negligence. Finally, and perhaps most significantly, the City Engineer approved the engineering aspects of the project prior to its submission to the City Council for approval. If the City Engineer were concerned that the location of the cable would interfere with road construction activities, then he could have required that the cables be placed even deeper beneath the rights-of-way. The City Engineer was apparently of the opinion that the proposed location provided an adequate margin of safety. Mm2LUSI� The City has imposed a.condition of permit issuance which is clearly prohibited under State law. In so doing, the City has 15 stalled a project which will both directly and indirectly benefit the residents of the City of Bangor, the County, the State and, indeed, the Nation. The City, to our knowledge, has never imposed such a condition on any other public utility. Indeed, the City has unfairly singled out this particular project as a test case. The law is clear: municipalities can only impose conditions relating to public safety and the use of the right-of- way so as not to obstruct travel. The condition relating to execution of a hold harmless agreement violates not only the letter of the law, but also the spirit. RBOeRBT EM MIRF Appellant respectfully requests that the Penobscot County Board of Commissioners strike condition number 8 of the Bangor City Council's final Order requiring that Appellant agree to hold the City harmless for damage to the cable resulting from the negligent acts of City employees and agents in its entirety. Dated: j'Ls wci3 By:l �. '""' RogerL. Buber, Req of the firm of BATON, PEABODY, BRADFORD & VRAGDE, P.A. P.O. Box 1210 Bangor, Maine 04402-1210 (207)-947-0111 Attorneys for Appellant AT&T Communications of New England, Inc. 16 EXHIBIT LIST A - Application of AT&T Communications of New England, Inc. for a Utility Location Permit. B - Draft Order of Bangor City Council, dated May 24, 1993. C - Draft Order of Bangor City Council, dated Suns 14, 1993. D - Final Order of Bangor City Council, dated June 14, 1993- E - Maine Public Utilities Commission Order Approving Stipulations, dated October 16, 1991. FORM432A-Bp -C TION FOR nTILITY LOCATION PERMIS PLAN F TO: BANGORCITY COUNCIL - CITY OF BANGOR -ATAT Communications, Inc. (AT&T), a Delaware corporation, being duly authorized to provide interstate telecommunications, hereby applies for a permit authorizing. said company the, right to construct, operate .and maintain its facilities, hereinafter '.described, upon along, across and under certain public ways Situated in the City of Bangor, Maine. LOCATION: DANFORTH BANGOR FT2G "A" CABLE permit - City, of Bangor: 35 Hillside Avenues beginning at said company terminal, thence northerly within certain public ways as follows: Hillside Avenue, Grandview Avenue and Broadway (Route 15), to the right-of-way of the Bangor and Aroostook Railroad, a distance Of approximatelY twenty-three thousand one hundred feet .(23, 100). The proposed route is more particularly shown. on a set of plans entitled "Saint John, NB to Bangor, ME, Danforth - Bangor ..Section, Lightguide System,_ Utility Location Permit, City' of -Bangor, Consisting of eleven (11) sheets, drawing FA. 50233. `BANGOR— PORTLAND PICO "A" CABLE _ Permit + City of Bangor: 35 Hillside Avenue, beginning at said company" terminal, thence westerly within certain public ways a 'follows: Hillside. Avenue, School Street, Broadway (Route 15)5 Hudson Avenue, Kenduakeag Avenue, Griffin Road and Union Street to - the right-of-way of the Bangor and Aroostook Railroad, a distance of approximately twenty-three thousand four hundred feet (23,400). The proposed route is more particularly showwin a set of t Section, "Bangor to Portland, Bangor Lightguide System, Utility Location Permit, City Of Bangor, consisting of thirteen (13) sheets, drawing FA 50234. Gounrii Artion Dam 5-24-1993 Ilam No. 93-277 Item%Subjeel: Application for Utility Location Permit - A T 6 T Communications, Feeponsible Department: Bngiaeering Commentary: The attached Council Order would grant a Utility Location Permit to A T A T Communications. Inc. to install an underground fiber optic cable along portions of Broadway. Grandview Ave., Hillside Ave.. School Street, Musson Ave., Readuskeag Ave., Griffin Road, and Outer Union Street, subject to certain conditions and fees. The proposed installation would generally be located [aide street travelled ways, away from sever linen and other underground public utilities, and would encompass a total length of 46.500 linear feet. The new cable would connect the United States and Canada, and provide system diversity for corammicaticow between the U.S.. Canada. and Europe.. The City Manger has raised the question of whether the City is obligated under State Statutes to provide a Location Permit free of charge because of the Applicant's corporate status in Maine. The Legal Department has investigated this issue as outlined in the attached Memo prepared by the Assistant .City Solicitor. Representatives from A T A T Communications, Inc. will attend the Council" meeting to answer questions relative to the project. Deyn-ar ward' Managers Conments:.rs oLou�)u�b�g�.ea[�Q,LQW�11�ap�d� Bevat-%2t\[s+0+ynsttarao\ Aasoriamd Information: ] Budget Approval: F:m uDi,[ Legal APPtoval: fB(0(sin(/ ["i(^fr IZ[JSSl d++`�� a DIC,111 �+i�% /sal eaI✓�n-5-t(/An�r (s�TIB.T and [w(di/lama( ansate"t rFSgGRH� 1't �l IR®J.. hrC; K 4Kd d p.e/ 'On - 7 h lrvv[o( k Gn in wduted For GMn6rn[nf 4✓l-A)Ylvli0� abr 7hiS 17PM /PC `�Pas,aca K✓%sB�J� vire 0JA��A (-B, y 777 /j /Page_of_ O First Fcad in9 /'[l✓dte&" R� %r Co9vAe;?AVo r, �'f /'. ❑Haremai A sve;uwk ['Homo eKtPla)ry;.� 11e �tiN7Lf wi (l Ames.0_ SUBSTITUTE COPY 93-317 Awepud lO Cuunctor Souay, lune 14, 1993 CITY OF BANGOR (TITLE) Orbera_.._application. for utility Location.. Permit AUT COMentcations of New England, Lac. By w city Covent Of w a:Y M Baser: ORDERED, THAT the attached Application for a utility Location Permit is hereby granted subject to she following conditions$ 1.The applicant shall amend Its Certificate Of SnCOrPO- ratlon as f11ed with the Maine Secretary of State to comply with 35-A M.B.S.A. S 2301. The applicant shall provide Satisfactory evidence of soon amendment t0 the City Solicitor's Office prior to Issuance of the requested utility Location Permit. 2. The proposed underground fiber optic cable will be installed in a 4" diameter steel conduit, to be located as shown on Plans titled-tanEorth-Sangor PT3 G 'A' Cable- (Plan No. FA 50233) and -Banger-Portland FT2G 'A' Cable- Plan No. PA 5034) dated April 16, 1993, prepared by Survey and Napping Consultants, Inc. copies of these Plans are file in the City enginaer•s office. 3. Except At structure locations, installation of the new conduit in paved roadways, driveways, and parking areas shall be accomplished by boring or jacking methods rather than bpeh trench _excavation. 4. Installation of the proposed undorgrovul fiber optic Cable shall additionally comply with the requirements of Chapter VI, Article S, Bangor City ordinances: 5. The applicant shall pay all applicable street opening fees as provided In Chapter VT, Article 8, Danger City Ordinances, including an inspection fee of $30.00 Paz day during project construction or as determined by the City Engineer. June 14, 1993 Amended by Substitution and Passed Substituted copy amended Delete the ward or n the 5th line paragraph 8 and the word customers in 11ne6 also in paragraph 8 delete the word may and add the word shall in the 10th line amended in additon by replacing paragraphs a 10 v[gn 'he eater recceied rom paragraphs Attorney Huber Ltter`Attached IM CLERK'S CdFsA MNGOA MNNE JUL 9-y3 It RUE COPY AiiBl ,aPa�-IV cz/ , . 6. The time and place of street opening and the location of the proposed underground fiber optic =his shall be specified in a Kitten permit to be issued in advance of construction by the City Engineer, as provided in 35-A M.A.S.A. 5 2508. 7. Upon completion of the Installation, the applicant shall provide two complete sate of -as built- drawings or diagrams to the Bangor City engineer's office, showing the final size and location of the cable and all conduit, structures and appurtenances thereto, as installed, including the elevation of such cable, conduit, structures and appurtenances below street or shoulder grade. G. The applicant shall execute rcutea written waiver agreement, in a form acceptable to the City Solicitor, holding the City of Bangor harmless free direct claims by the aplicant, or its uccesiors, and by all affiliated business Corporations as mstomer , for damage to or interruption of service along the underground fiber optic cable occaefonep by ordinary negligence of the City, its employees or agents in conducting errant maintenance, street repair, resurfacing, regrading, or relocation operations, or in excavating for any City of Bangor sewer, atoms sewxr,gx other e with all 23 M.R.S.A. 9. Following installation, the underground fiber optic cable shall not be used to carry or transmit any cable television JCATV) or similar signals or to otherwise engage in the business of cable television broadcasting or any similar business made subject to municipal Control, franchising, or xegvlation under Title 30-A' X.R.S.A. S 3008 or other provisions of State or Federal law, without first giving sixty (60) days prior written notice to the City of Bangor of the applicant's intention to carry or transmit such signals or to engage in such business. If the underground fiber optic cable is used by the applicant or its successors for any such purpose, the applicant or its successors shall seek all necessary approvals under Federal, State and local law, regulations and ordinances, and shall negotiate a written franchise agreement with the City of Bangor in accordance with all applicable City ordinances and policies. 10. The Utility Location Permit herein approved shall be deemed personal to the applicant, and shall not be transferred to any corporation, person or entity, nor shall ownership of the underground fiber optic cable and appurtenances to be installed pursuant to the Utility Location Permit be Bold, conveyed, transferred or leased to any corporation, personorentity, unless such corporation, person or entity has first qualified, applied for and received a Utility Location PataLLt from the City of Bangor an provided in Title 35-A M.R.S.A. Chapters 23 and 25, 993]] S Msgned to Co:mdot swcy May 24, 1993 _ CITY OF BANGOR alffl.) (J@rbtr, Application for Utility Location._ Permit A T 6_T Communications. By the City CouMi of Gu Oft of Danger: ORDERED, TUT the attached Application for a Utility Location Permit is hereby granted subjecttothe fallowing conditions: 1. The proposed underground fiber optic cable will be installed in a 4" diameter steel conduit, to be located a shown n Plans titled "Danforth - Bangor Ff2 G 'A' Cable" (Plan No. FA 50233) and "Bangor -Portland FT2G 'A` Cable" Plan No. FA 5034) dated April 16, 1993, prepared by Survey and Napping Consultants, Inc. Copies of these Plans are on file in the City Engineer's office. 2. ,Except at structure locations, installation of the new conduit in paved roadways, driveways, and parking areas &ball be accomplished by boring or jacking methods rather than open trench excavation. 3. Payment of applicable street opening fees. 4. Execution of an appropriate license agreement and payment of a appropriate license fee as negotiated by the Applicant and the City Manager for occupying portions of City street rights-of-way. Said license agreement and fee to be approved by the City Solicitor. A public notice of this Application has been published in the Bangor Daily News. In City Council May RC, 1993 Referred to Finawe Committee ,rm.il City'Clerk s 93-R]] ORDER Title, Application for Vtiliry [oration Permit A ................... T 6T CammnnicdY ions Inc. ...................................... IN CITY COUNCIL June 14, 1993 �/ - O g Amended by Substitution. Amiged to amended in the Sth Paragraph in the 4tb Line by delete the word "or d In" rtl the the 5th line by deleting the word "cuscomed' and in m n fAuncilman the 10th line Change the word "May" to "Sbnll". Amended also by replacement of paragraph 9 and 10 with paragraphs 9 and 10 In the letter received from Attorney Roger Shebat representing AM Corporation June 14, 1993. Passed as Amended be�y// Substitution. v[( CIT�/CLHR% A�P ` ..rte _ EATON. PEABOOV. H PninaU a V RAG V E P.P. ? /a Dear Erik: As we discussed, following are our proposed revisions to the Order of the Bangor City Council pertaining to the above- mentioned application: _ 1. Strike paragraph No. a in its entirety because it is inconsistent with the mandates of State law. The City i precluded by State law to require such a condition either as a permit condition or as a condition of permit issuance. Accordingly, AT&T objects to its inclusion in the City Council's Order. If, however, you intend to include the paragraph in the final Council Order, we ask that you amend it as follows in order to be consistent with prior discussions: a. Strike the reference to "or customers” in the fourth and fifth line of the paragraph. AT&T's liability to its customers is limited pursuant to federal law and, therefore, there is no basis for requiring that AT&T indemnify the City against such claims. A011111.1AIII "I'll, WIND PAX 1*2-A040o O"IAt <ZCCN. MEAN, 11 I,wA2 LALFWA.DARTni ^.54RALKAZA TIINIAI 1. "'."'A JONATHAN 1. HUNTANTO�.iofN. . i ?.'�' {j .ue a.m . CLOONAN 0, ME LATIN 110A 1, 1. WTu.r +i Jil°� 1 t593 DEAN' HANDII "Y'A us 1111 1,,H .. 0111, �'�'=iiAr 111.11, IITLI Y3ENA€iTi4:�N7 1.�111.111111 .,.,�."..m.a. ,..,a....m.. ..2.m.."a NINE 01. 2 1 AAMILL 1. June 14, 1993 ,,,,2,„1. A„, ae„2221,,, Erik M. Stumpfel, esquire City Solicitor City of Bangor - 73 Harlow Street Bangor, Maine 04401 Hand Delivered RE: AT&T Communications of New England, Inc./Application for Utility Location Permit/Revisions to draft City Council Order Dear Erik: As we discussed, following are our proposed revisions to the Order of the Bangor City Council pertaining to the above- mentioned application: _ 1. Strike paragraph No. a in its entirety because it is inconsistent with the mandates of State law. The City i precluded by State law to require such a condition either as a permit condition or as a condition of permit issuance. Accordingly, AT&T objects to its inclusion in the City Council's Order. If, however, you intend to include the paragraph in the final Council Order, we ask that you amend it as follows in order to be consistent with prior discussions: a. Strike the reference to "or customers” in the fourth and fifth line of the paragraph. AT&T's liability to its customers is limited pursuant to federal law and, therefore, there is no basis for requiring that AT&T indemnify the City against such claims. EATON, pEP ROO Y. BRADFORD A VEAO VE. p. A. 0"001 Cuts, M112,Z11 ei: m e"":Y i�F M�! M1.101, ^^ -.o..r.NV...111. 1, AILLIMCICAMILUI, L35i-Ari"i�kEN? .,..,1..,4 -,1,,,1,111 11.11.,..„ lune 14, 1993 Erik M. Stumpfel, Esquire City Solicitor City of Bangor 73 Barlow Street Bangor, Maine 04401 - Sena Delivered RE:AT&T Communications of New England, Int./ApplicatiOn for Utility Location Permit/Revisions to draft City Council order Dear Erik: As we discussed, following are our proposed revisions to the Order of the Bangor City Council pertaining to the above. - mentioned applination: 1.. Strike paragraph No. E in its entirety because it is consistent with the mandates of State law. The City is precluded by State law to require such a condition either as a permit condition or as a condition of permit issuance. Accordingly. AT&T objects to its inclusion in the City Council's Order. 1f, however, you intend to include the paragraph in the final Council Order, we ask that you amend it as follows in order to be consistent with prior ' discussions: a. Strike the reference to "or customers" in the fourth and fifth .line of the paragraph. AT&T's liability to its customers is limited pursuant to federal law and, therefore, there is no basis for requiring that AT&T indemnify the City against such claims. - L Erik M. Stumpfel, Esquire City Solicitor City of Bangor _ June 14, 1993 Page Two b. Replace the word "may" in the tenth line of the paragraph with •Shall.° 2. Amand paragraph NO. 9 as follows: if applicant intends to utilize the underground fiber, optic cable to carry or transmit any cable television (CAM or similar signals or to otherwise engage in the - business of cable television broadcasting or any similar business made Subject to municipal Control, franchising, Or regulation. under Title 30-A M.R.S.A. 5 3008 or other provisions of State or Federal law, then applicant Shall give sixty (60) days prior written notice to the City of Bangor of such intention to carry or transmit such signals or to engage in such business. If the underground fiber optic cable is used by the applicant or its successors for any such purpose, the applicant or its successors shall Seek all necessary approvals under Federal, State and local law, regulations and ordinances, and shall negotiate a written franchise agreement with the City of Bangor in 3. Amend paragraph 10 as follows The Utility Location permit herein approved shall be deemed personal to the applicant and may only be transferred to a "public utilitym as that term is defined in Title 35'-A M.R.S.A. Chapters 23 and 25. Ownership of the underground fiber optic cable and appurtenances to be installed pursuant to the Utility Location permit may not be said, conveyed, transferred r leased to any corporation; person Or entity, unless Such corporation, person or entity qualities an a "publicutility' under Title 35-A M.R.S.A. chapters 23 and 25. EATON, PEABODY, BRADFORD & VEAGOE,P A FLEET CENTER - EXCHANGE OFFULET IT WOX1210 BANGOR. MAINE 04401 1210 MERCHANT MIJ 'ALEX A III. EXPAND.. NOT IJ 11 111111 1 AGAIN 1111111111 I... 1. AEG' PIRELLI BIONDI 1.1.11 A 111.1 PAULL GIBBONS INC, 11 I'll 'NIGERIA BORDEN 1101". I".,D. JONATHAN 0 AFTERNOON ABOULA, MAINE WAR ""'"A A ILICADI Ill' Al COBALT I RARE 0. MALAY BEAT A 1. AMEX 111 'All "I "In" A """I I'll 1. IWITIIAXV MUCANT M. EARN HAV I "All 110" A RIVAL IIANA 1, 11" June 25, 1993 RAAMINGTON DIRECT DRAWN. GUAMe,.« JUNE 1. I'l... ALAN A CARRIER LUCY WILLIAM 1. DEVOE I'll A 1. BORDER DOVE YANG LEFT, MAINE LEGE AT Il 11 RUDE 1. FIRMLY GFULL N MADPORL Russell MCxema, Clerk City of Bangor 93 Barlow Street Bangor, Maine 06601 Re: AT&T Communications of New England, Inc./Appeal to Penobscot County Board of Commissioners Dear Russ: Enclosed with this letter please find AT&T Communications of New England, Inc.'s appeal to the Penobscot County Board of Commlissioners of the Bangor City Council's decision to conditionally grant an underground utility location permit. If you have any questions, please do not hesitate to call. Sincerely, RRR��*dam n, Huber O48310 ,110 �P. RQ /N, A7. Will £6 FORM 432A -BC ERMIT PLAM j TO: BANGOR CITY COBNCIL - CITY OF HARBOR AT&T Communications, Inc. (AT&T), a Delaware corporation, being duly authoriaed to provide interstate telecommunications, hereby applies for a permit authorizingsaid company the right to construct, operate and maintain its facilities, hereinafter described, upon, along, across and under certain public ways situated in the City of Bangor, Maine. LOCATION: OANFORTH - BANGOR FT26 "A" CABLE Permit - City of Bangor: 35 Hillside Avenue, beginning at said company terminal, thence northerly within certain public ways as follows: Hillside Avenue, Grandview Avenue and Broadway (Route 15), to the right-of-way of the Bangor and Aroostook Railroad, a distance of approximately twenty-three thousand one hundred feet (23,100). The proposed route is more particularly shown on a set of plans entitled "Saint .Sohn, MB to Bangor, MB, Danforth - Bangor Section, Lightguide System, Utility Location Permit, City of Bangor, consisting of eleven (11) sheets, drawing FA 50233. BANGOR - PORTLAND FT20 "A" CABLE Permit - City of Bangor: 35 Hillside Avenue, beginning at said company terminal, thence westerly within certain public ways as follows: Hillside Avenue, School Street, Broadway (Route 15), Husson Avenue, Rendusksag Avenue, Griffin Road and Union Street to the tight -of -way of the Bangor and Aroostook Railroad, a distance of approximately twenty-three thousand four hundred feet (23,400). The proposed route is more particularly shown on a set of plans entitled "Bangor to Portland, 'ME, Bangor - winterport Section, Lightguide System, Utility Location Permit, City of Bangor, consisting of thirteen (13) sheets, drawing FA 50234. ,93-2JJ 7 CERCRIPTI03H The facilities will consist of one four (4) inch steel pipe containing two (2) 1.5 inch PVC innerducts (one innerduct will contain a single fiber cable), upon, along, across and under certain public ways situated within the City of Bangor. In addition, the facilities will consist of splice handholes (precast concrete and gn82ite material), splices, repeaters, surface testing terminals, marker poles and other appurtenances. The facilities will be buried within the limits of the public ways, herein before mentioned, but will be outside the part thereof customarily used for vehicular traffic. Dated at Boston, Massachusetts on April 16, 1993. By: AT&T Commun'c ions Inc. Kevin Hanley, PLS President, Surveyin and mapping Consultants, Inc. Agent for AT&T EATON. PEABODY. BRADFORD BSEARNE IMA NAME CENTER . EARNINGS NISSAN 11 1,11210 HANSON, AMID ERNEST 210 Enclosed with this letter please find the appeal of AT&T Communications of New England, Inc. from the decision of the Bangor City Council to conditionally grant an underground utility - location permit pursuant to 35-A M.R.S.A. 55 2501-2520. The Bangor City Council, on rune 14, 1993, approved the issuance of an underground utility location permit to AT&T Communications of New England, Inc. However, the City conditioned the issuance of that permit upon AT&T agreeing to hold the City harmless for damage to the underground cable resulting from the negligent acts of the City's employees and agents. Maine law is clear, municipalities can only impose conditions relating to public safety and the use of the right-of- way so as not to obstruct public travel. The condition imposed by the City is completely unrelated to either of these issues. Accordingly, the condition is violative Of State law And AT&T requests that the Board strike the condition in its entirety. KONG 1 11.1 I ..0111 A11ITII RULING I "I I. ALL WAS 11.11, WAR., "SELL 1, 1111111111 IDWARMS U LIONAME III ALAN. GERMAN OWNER MILLI WARSAW 1. '.CIA'.. LAOS A, 1. MITI ""LAI EU MAKER ALL I" LAI MORAL S, TRAINOR ""AIN LI ANAMI LOAN A. IIWAUAIIHAI ALLISON CARTER LURE AREA" 1, A LOS SANTA I "I'll ANNE LAI MAINE WAR 20 RE CMRA1 1 "MILLI MAKERS" WARN,,,,..,,, III ....... June 25, 1993 Penobscot County Board of Commissioners 99 Hanmwnd Street Bangor, Maine 09901 Re: AT&T Communications of New England, Inc./Appeal from Decision of Licensing Authority pursuant to 35-A M.R.S.A. g 2503(13). Dear Commissioners: Enclosed with this letter please find the appeal of AT&T Communications of New England, Inc. from the decision of the Bangor City Council to conditionally grant an underground utility - location permit pursuant to 35-A M.R.S.A. 55 2501-2520. The Bangor City Council, on rune 14, 1993, approved the issuance of an underground utility location permit to AT&T Communications of New England, Inc. However, the City conditioned the issuance of that permit upon AT&T agreeing to hold the City harmless for damage to the underground cable resulting from the negligent acts of the City's employees and agents. Maine law is clear, municipalities can only impose conditions relating to public safety and the use of the right-of- way so as not to obstruct public travel. The condition imposed by the City is completely unrelated to either of these issues. Accordingly, the condition is violative Of State law And AT&T requests that the Board strike the condition in its entirety. Penobscot County Board of Commissioners June 23, 1993 Page Two If the Board requires any additional information, please let me know. Otherwise, I look forward to meeting with you on this matter. Sincerely, Roger I. Huber RIH/fe enc. cc: Brian M. Kelleher, Esq., AT&T Bob MacSwain, MacSwain & Co. Erik M. Stumpfel, Esq. Russell McKenna, City Clerk