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HomeMy WebLinkAbout1993-07-12 93-369 ORDERCOUNCIL ACTION Item No. 93-369 Date July 12 1993 Item/Subject: j7tleconsidering Council Order t93-277 (as amended by substltuion - 6/14/93) -- Application for Utility Location Permit -- AT&T Communications of New England, Inc. Responsible Department: Legal Commentary: The Council was informed by a memorandum dated June 30, 1993, that AT&T has appealed the Council's conditional granting of a fiber optic cable Utility Location Permit (C.O. 93-277 as amended by substitution - 6/14/93) to the Penobscot County Commissioners a provided by 35-A MRSA 5 2503(13). As the Legal Department reads the statute, the Council may choose to reconsider its prior decision during the two weeks after filing of the appeal. After further discussions among staff, it has been determined that either of the proposed alternative revisions to C.O. 93-277 will allay the City's concerns about liability from damage to the underground fiber optic cable. One alternative would require the cable to be installed overhead on utility poles. The other alternative would (cont'd on next page) 6N. Department Head VU �f City manager Associated Information: C.O. 93-277 as amended by subst. 6/14/93 Finance Director City 9C�tOY Introduced For Passage First Reading Referral Page 1 of 9 require AT&T to cease using the underground cable and install a temporary cable along the ground that they would be responsible for suitably protecting for the duration of any construction activity. AT&T is opposed to the first alternative, but appears receptive to the second. Consideration of this revision will also add to the record in front of the County Comnineioners, improving our ability under the statute to defend the Council's permit decision against AT&T's appeal. 93-369 fiedp d to councilor CITY OF BANGOR RITIFJ (®cb¢i,...........Applioauan.-fox utility.. Location ..permit ........ -- AT&T Communications of New England, Inc. By aw City ComeN Of City OfBanoor. 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. g 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 502331 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. 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. 93-369 (P) Delete paragraph 8 of 93-277 (G) Paragraphs 9 and 30 of 93-277 are amended by deleting the word "underground" wherever it appears. (H) Renumbering all remaining paragraphs as appropriate. Alternative 2 (A) Paragraph 7 of 93-277 is amended by inserting the word "reference" before the word "elevation^ in the fifth line and inserting the words installed" after the word "appurtenances' in the sixth line. (B) Paragraph B of 93-277 is deleted and replaced with the following language: Whenever the City of Bangor intends to engage in or contract for construction activity along the route of, adjacent to or otherwise in the vicinity of the installed underground fiber optic cable that will involve excavation to a depth greater than one (1) foot above the installed underground fiber optic cable, the City will provide AT&T Communications of Now England, Inc. (ATT) with 30 days prier written notice of such activity. Said written notice will be sent to the company terminal at 35 Hillside Avenue in Bangor. The term 'construction activity" shall include, but not be limited to, street repair, street reconstruction, sewer separation projects, storm drain repair or installation, sewer repaire, sewer connections within the public way by the City, and new construction of public ways. Upon receipt of such notice, ATT will take all necessary steps, at its expense, to install a temporary fiber optic cable along the surface of the public way affected by the construction activity. Said temporary cable shall be encased in protective material determined by ATT to be suitable and appropriate for the duration of the project. Said temporary cable shall be located and encased in a manner that will not unreasonably interfere with ingress to or egress from or travel or movement over the public way by the traveling public. t ile the temporary cable is in u o communications will be transmitted using the underground fiber optic cable, but that cable may remain 1n place. ATT Personnel or agents shall be onsite, at ATT expense, for the duration of the temporary cable's usage. Te City Engineer must approve of the location of the temporary cable and such approval shall not be unreasonably withheld. 93-369 Should construction activity require excavation at the level of the installed cable or greater, the City of Bangor may require Ams to permanently relocate that portion of the cable affected by said construction activity. Any construction activity of an emergency nature that requires excavation near the underground fiber optic cable is exempt from the 30 day prior notice requirement herein and ATT shall respond immediately to the City's oral or written request to temporarily move the underground fiber optic cable in such a situation. Statement of Fact: Underlines are additions and crosscuts are deletions. Alternative 1 is designed to require that the entire length of the fiber optic cable traveling in the public ways of Bangor be installed above the ground and overhead. Alternative 2 would allow AT&T to locate its cable underground, but would require AT&T to temporarily or permanently relocate its cable when required to do no by the City Engineer, in connection with any City street project involving excavation vation of three feet o me in depth, upon 30 days prior writtennotice. Either of these alternatives, if accepted by AT&T, would replace the indemnity requirements currently included In C.O. 93-2]] as amended by the City Council on June 19, 1993. 93-369 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. ]. Upon completion of the installation, the applicant shall provide two complete sets ofas built^ drawings or diagrams to the Bangor City Engineer's officer 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 aultoimgM7 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,,,ggqx other City utility location or .repair project. Such waiver ,flay be conditioned upon the City of Bangor's prior complianc tthh all applicable provisions of the Maine ^dig safe^ statute, 23 .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 order 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, 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. Ate° IIJe`,_ Y (�rt1x�S � � EATON. PEABODY. BRADFORD & VEADVE. P.A. 93-369 FLEET CENTER. EACH ANSI STREET AM ALI 1219 FURNACE, MAINE 01210 111111 L'I FAII I A,HMM TUNISIA. 11171 117 0111 "C"A 'All. Ell I. 1111. ARMS A I'l, A 1.111. VARIED, FRANC I INFECT RICAN KID ,FINAL, 11.1A SUNNI I I.MIN 1" 111-3011 111.1 IMANNUM 111. ATN' A, 1".. FALL L REMARK ANN. I ONCE MIT"' " 11111111, IULUTZ "I'll A. DAM'AT ['i T<P j�q+ n.C� u uau a CALVIN 9, TAU' 11111MIA CULLEN K o. 230 Ill 1. MITI A""' .11AM11 1. IHIIMLI I'll 1, •• 1LFd 9 r +ec.""...II oa ° •„ d ;9 . ".R.. 11 AN A. OLD .. UNNI ALLMON CANNER LUCT STREET MILAN u"."". FACE'....... �S�A:Yi'.YfEe�3i "".,30 FAST ".T"."R AMR 01". Of CALVIN MARTIN a. nu ....m.. DEAR Sane 14, 1993 Erik M. Stumpfel, EBquire City Solicitor City of Bangor 73 Harlow Street Bangor, Maine 04401 Nand 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. 8 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 isvane. 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. L 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 i no basis for requiring that AT&T indemnify the City against such claims. 93-369 Erik M. Stumpfel, Esquire City Solicitor City of Bangor June 14, 1993 Page Three I believe these revisions are consistent with our discussions on June 11, 1993. Be. advised, in the event that you decide to include the hold harmless provision in the Council Order, we will be asking the Council to delete it in its entirety. I£ you have any questions, please do not hesitate to call. Otherwise, I would appreciate it if you would contact my office when the final council Order is ready. Sincerely, - %" 3. Roger L. Huber RLH/fe cc. Brian M. Kelleher, Esquire Robert F. MacSwain CITY OF BANGOR UTILITY LOCATION PERMIT Pursuant to Bangor City Council Order No. 93-277, as amended and passed on June 14, 1993, and as further amended by Bangor City Council Order No. 93-369 passed on July 12, 1993, AT&T COMMUNICA- TIONS OF NEW ENGLAND, INC., a New York corporation authorised to do business in the State of Maine as a public utility (hereinafter AT&T), is hereby granted a Utility Location Permit pursuant to Title 35-A M.R.S.A. g 2503, to construct, operate and maintain certain facilities at the following locations and subject to the Permit conditions set out below: FACILITIES A fiber optic telecommunications cable with related facilities and appurtenances, including necessary protective structures and conduit. The facilities shall consist of one four (4) inch diameter steel pipe conduit containing two (2) 1.5 inch PVC innerducts (en i=erduct 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 quazite material), splices, repeaters, surface testing terminals, marker poles and other appurtenances. The facilities will be buried within the limits of the public ways, hereinbefore mentioned, but will be outside the part thereof customarily used for vehicular traffic. LOCATIONS DANFORTH - BANGOR FT2G 'A" CABLE 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 (23,1001). The proposed route is more particularly shown on a set of plans entitled "Saint John, NH to Bangor, ME, Danforth - Bangor Section, Lightguide System, Utility Location Permit, City of Bangor', consisting of eleven (11) sheets, drawing FA 50233. RANDOM - PORTLAND FT2G "A' CABLE City of Hangor: 35 Hillside Avenue, beginning at said company terminal, thence westerly within certain public ways as follows: Hillside Avenue, School Street, Broadway (Route 15), Musson Avenue, Eenduskeag 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 ism re 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. PERMIT CONDITIONS 1. The fiber optic cable will be installed in a 4" diameter steel conduit, to be located as shown on Plans titled "Danforth - Bangor FT2G "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 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 shall be accomplished by boring Or jacking methods rather than open trench excavation. 3. Installation of the facilities shall additionally comply with the requirements of Chapter vI, Article 8, Bangor City Ordinances. 4. AT&T 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. 5. The time and location of all street openings shall be specified in a written street opening permit to be issued in advance of construction by the City Engineer, as provided in 35-A N.R.S.A. 5 2508. 6. 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 reference elevation of such cable, conduit, structures and appurtenances, as installed, below street or shoulder grade. ]. Whenever the City of Bangor intends to engage in o contract for construction activity along the route of, adjacent to or otherwise in the vicinity of the installed underground fiber optic cable that will involve excavation to a depth greater than one (1) foot above the cable, the City will provide AT&T with 30 days prior written notice of such activity. Said written notice shall be sent to the individual designated for such purpose by AT&T and whose n e shall s n file with the Bangor City Engineer. c The term istruction activity" shall include, but not be limited to, street repair, street reconstruction, sewer separation projects, storm drain repair or installation, sewer repairs, sewer connections within the public way by the City, City streetlight,, traffic signal, fire alarm systems, and new construction of public ways. Upon receipt of such notice, AT&T will take all necessary steps, at its expense, to install a temporary fiber optic cable along the surface of the public way to bypass only that portion of the underground fiber optic cable directly affected by the construction activity. Said temporary cable shall be encased in protective material determined by AT&T to be suitable and appropriate for the duration of the project. Said temporary cable shall be located and encased i manner that will not unreasonably interfere with ingressto or egress from or travel or movement over the public way by the traveling public. While the temporary cable is in u communications shall s be transmitted using the bypassed segment eon of the underground fiber optic cable, but that cable may remain in place. AT&T personnel or agents shall be onsite, during periods of actual construction activity, at AT&T's expense, for the duration of the temporary cable's usage. The City Engineer moat approve of the location of the temporary cable and such approval shall not be unreasonably withheld. Should construction activity require excavation to the elevation of the installed cable or lower, the City of Bangor may require AT&T to permanently relocate that portion of the cable affected by said construction activity. If AT&T is required to permanently relocate any portion of the cable, AT&T shall comply with all conditions of this permit with respect to the new cable location. in such event, this permit shall be deemed amended to include the new permanent location and to delete the former location of that portion of the cable permanently relocated. Any construction activity of an emergency nature that requires excavation near the underground fiber optic cable is exempt from the 30 day prior notice requirement herein and AT&T shall respond Immediately to the City's oral or written request to temporarily bypass the underground fiber optic cable in such a situation. 8. If AT&T 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. 5 3008 or other provisions of State or Federal law, then AT&T 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 AT&T or its successors for any such purpose, AT&T or its accessors e 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. 9. The Utility Location permit herein approved shall be dammed personal to AT&T 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. Issued this /61% day of duly, 1993. CITY of BANGOR y^\ (BY) I/ James g - City Engineer Appp`rovveda/s�/ to forms V 4 Erik M. 6tumpfel City solicitor 93-369 Aedgned b Counagor Soucy, July 12, 1993 CITY OF BANGOR (TIN nsidering Council Order #93-277 (as amended by su �tsubstitution ........ .._........... ............ by on - 6/14/93) ns Application for Utility Location Permit -- AT&T Communications of New England, Inc. By Om City Cou 1eftU qty a/Rano.+ ORDERED, THAT Pursuant to 35-A R.R.S.A. 6 2503(13), Council Order #93-277, as amended by substitution on 6/14/93), is hereby further amended by addition of the following language: The City Engineer is further authorized to issue a Utility Location Permit containing one or more of the following alternative provisions: Alternative 1 (A) The first sentence of Paragraph 2 of '93-277" is amended as follows The proposed undeagxeund fiber optic cable will be installed overhead o existing utility Doles #a_a 4++-d#ametesVetae}_eesde#t, to be located on the route an shown on Plans.... (N) Delete Paragraph 3 of 93-277. (C) Paragraph 4 of 93-277 is amended by deleting the word underground." (D) Paragraph 6 of 93-277 is amended by deleting the word underground." (E) Paragraph 7 of 93-277 is amended as follows: Upon completion of the installation, the applicant ..... office, showing ... all eenda#tr ... including the reference selevation of such cable, esadu#tr ... be}ew abw street or shoulder grade. g : 93-369 ?? ORDER IN CITY COUNCIL Title, July 12, 1993 Passed Reconsidering Council Order .993;43Q,{as a mended tiY auba[StnC3on - 6%14/93) Application !F for Location Perp.t AT&TCommunications CIT LER& ... ..... forXUC3i1i1CtY to �yMignd Councilman EATON. PEABODY, BRADFOBO & VEAGVE. P.A REST CENTER - EXCHAMOC STREET 11. WE 1110 READISIR, MAINE 04402-12 10 MAINE! 1, ,.n RAIMA.14sa ollpial. 116119474111 AFFAIR' EARLIER' IcATE1.1.14111 OFFICE LOCATIONS: ROASTER 6, CREATION 'INS. ILLEGAL' 11 'An RAW ^ duly 16, 1993 ^^o. Vrc-^^•^, CLARE MUDS GN NAME "I'll I I'll GRAIN MOR AT A AT RETAIL 0. TRAINOR MANAGER A. W WAGNER mm, 1, "I'll ON AWARE, .111. 30 FAST MAIN STREET WALTER 1, A EVER 'All' 1, "I'll MESA PARTIES, MAN ..A. Of MAGESE FACT" I I'll FORMS A. NEAR Donna L. KaiM, County Clerk Penobscot County Co9mnissionerS 97 Hamenond .Street Bangor, Maine 04401-4998 Re: AT&T Conmlunicaticae of New England, Inc./Appeal from Decision of Licensing Authority pursuant to 35-A M.x.S.A. § 2503(13)/Notice of withdrawal Dear Donna: AT&T'Conmlunications of New England, Inc. hereby withdraws the above-mentioned appeal to the Penobscot County Commissioners. The City amended the Utility Location Permit in a Rubber which is acceptable to AT&T thereby obviating the need for the appeal. If you have any questions, please do not hesitate to call me. Sincerely, Roger L. Huber ' cc: Russell McKenna, Bangor City Clerk Erik M. Stumpfel, City Solicitor Brian M. Kelleher, Esq. Bob MaCSwaln N831] A110 NOONbB 30 A110 ATO: AIV A mr M