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.
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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
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