HomeMy WebLinkAboutOrdinances (O-99-1151)-03/23/1999
ORDINANCE NO. 0-99-1151
AN ORDINANCE TO GRANT A MUNICIPAL CONSENT TO SOUTHWESTERN BELL
TELEPHONE FOR THE USE OF CITY PUBLIC RIGHTS-OF-WAY BY SOUTHWESTERN
BELL TELEPHONE AS A PROVIDER OF TELECOMMUNICATIONS SERVICES FOR A
TERM OF FIVE YEARS, PROVIDING SEVERABILITY, AND ESTABLISHING AN
EFFECTIVE DATE.
WHEREAS, the City of Colleyville (the "City") has adopted Ordinance 0-98-1127
establishing a Master Telecommunications Ordinance and incorporated in
said Ordinance is the provision that Telecommunications Service providers
wishing to use City Public Rights-of -Way present an "Application for
Municipal Consent for Use of the Public Rights-of-Way by a
Telecommunications Service Provider" (Exhibit A) in order to obtain a
Municipal Consent ordinance with the City; and,
WHEREAS, Southwestern Bell Telephone Company hereinafter referred to as "SWBT"
has completed said application, therefore as follows is the Municipal
Consent Agreement establishing SWBT as a Telecommunications Service
Provider in the City and authorizing the City to enter into the Municipal
Consent Agreement (Exhibit B) with SWBT.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
COLLEYVILLE, TEXAS AS FOLLOWS:
Sec. 1.
THAT the term of this Municipal Consent Ordinance between the City and
SWBT shall be for a term of five (5) years.
Sec. 2.
THAT SWBT shall substantially comply with all terms of Ordinance 0-98-
1127 (Master Telecommunications Ordinance).
Sec. 3.
THAT SWBT's Municipal Consent Ordinance is subject to termination by the
City Council, after notice and hearing, for SWBT's failure to comply with
Ordinance 0-98-1127 or on a showing that SWBT has breached the terms
of the Municipal Consent;
Sec. 4.
THAT the following provisions of Ordinance 0-98-1127 regarding transfers
shall apply under the Municipal Consent Ordinance:
(A) No Municipal Consent nor any rights or privileges that SWBT has
under a Municipal Consent, or the Facilities held by SWBT for use
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Page 2 of 15
under such Municipal Consent which are in the Public Rights-of-Way,
shall be sold, resold, assigned, transferred or conveyed by SWBT,
either separately or collectively, to any other Person, without the prior
written approval of the City by ordinance or resolution. The City's
approval shall be based upon the transferee providing adequate
information to the City that it has the ability to perform and comply
with the obligations and requirements of the Municipal Consent.
Such approval shall not be unreasonably withheld. Should SWBT
sell, assign, transfer, conveyor otherwise dispose of any of its rights
or interests under its Municipal Consent, including SWBT's
Telecommunications Network, or attempt to do so, without the City's
prior consent, the City may revoke SWBT's Municipal Consent for
default, in which event all rights and interest of SWBT under the
Municipal Consent shall cease.
(B) Any transfer in violation of this Section shall be null and void and
unenforceable. Any change of control of SWBT shall constitute a
transfer under this Section. However, such a change in control shall
not void the Municipal Consent as to the transferee, unless and until
the City has given notice that such a change in control necessitates
compliance with Section 14 of Ordinance 0-98-1127. If SWBT does
not initiate compliance with Section 14 of Ordinance 0-98-1127 by a
request for Municipal Consent within thirty (30) days after the above
notice has been given by the City, the Municipal Consent shall be null
and unenforceable as to the transferee.
(C) There shall be a rebuttable presumption of a change of control of
SWBT upon a change of 15% or greater in the ownership of SWBT.
Such a change in control shall be deemed a transfer which requires
consent of the City.
(D) A mortgage or other pledge of assets to a bank or lending institution
in a bona fide lending transaction shall not be considered an
assignment or transfer.
(E) Every Municipal Consent granted under Section 14 of Ordinance 0-
98-1127 shall specify that any transfer or other disposition of rights
which has the effect of circumventing payment of required Access
Line Fees or Minimum Fees and/or evasion of payment of such fees
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Page 3 of 15
by failure to accurately count or report the number of Access Lines by
SWBT is prohibited.
(F) Notwithstanding anything else in this Section 14, if the City has not
approved or denied a request to transfer under this Section within 120
days of written notice of such request from the SWBT to the City, it
shall be deemed approved. Such time frame may be extended by
mutual agreement of the parties.
(G) Notwithstanding any other provision in this Section 14, SWBT may
transfer, without City approval, the Facilities in the Public Rights-of-
Way under a Municipal Consent to another Provider who has a
Municipal Consent under this Chapter. In transferring the Facilities,
SWBT remains subject to all applicable obligations and provisions of
the Municipal Consent unless Provider to which the Facilities are
transferred is also subject to the same, as applicable, obligations and
provisions. SWBT, as Provider transferring the Facilities, must give
written notice of the transfer to the City Manager.
Sec. 5.
THAT the following provisions of Ordinance 0-98-1127 regarding Notices
to the City shall apply under the Municipal Consent Ordinance:
(A) SWBT shall notify the City Manager as is provided in the Consent
Agreement.
(B) SWBT shall give written notice to the City not later than 15 days
before a transfer or change in operations that may affect the
applicability for the following Sections of Ordinance 0-98-1127:
Sections 18 [Conditions of Public Rights-of-Way Occupancy], 19
[Insurance Requirements], 20 [Indemnity], and 21 [Renewal of
Municipal Consent], to SWBT.
Sec. 6.
THAT the following provisions of Ordinance 0-98-1127 regarding
construction obligations shall apply under the Municipal Consent Ordinance:
(A) SWBT is subject to the reasonable regulation of the City to manage
its Public Rights-of-Way pursuant to the City's rights as a custodian
of public property under state and federal laws. SWBT is subject to
City ordinances and requirements and federal and state laws and
Ordinance 0-99-1151
Page 4 of 15
regulations in connection with the construction, expansion,
reconstruction, maintenance or repair of Facilities in the rights-of-way.
(B) At the City's request, SWBT shall furnish the City accurate and
complete information relating to the construction, reconstruction,
removal, maintenance, operation and repair of Facilities performed by
SWBT in the rights-of-way.
(C) The construction, expansion, reconstruction, excavation, use,
maintenance and operation of SWBT's Facilities within the
rights-of-way are subject to applicable City requirements.
(1) SWBT may be required to place certain Facilities within the
rights-of-way underground according to applicable City
requirements absent a compelling demonstration by SWBT that,
in any specific instance, this requirement is not reasonable or
feasible nor is it equally applicable to other similar users of the
rights-of-way.
(2) SWBT shall perform operations, excavations and other
construction in the public rights-of-way in accordance with all
applicable City requirements, including the obligation to use
trench less technology whenever commercially economical and
practical and consistent with obligations on other similar users
of the rights-of-way. The City shall waive the requirement of
trenchless technology if it determines that the field conditions
warrant the waiver, based upon information provided to the City
by SWBT. All excavations and other construction in the Public
Rights-of-Way shall be conducted so as to minimize interference
with the use of public and private property. SWBT shall follow all
reasonable construction directions given by the City in order to
minimize any such interference.
(3) SWBT must obtain a permit, as reasonably required by
applicable City codes, prior to any excavation, construction,
installation, expansion, repair, removal, relocation or
maintenance of SWBT's Facilities. Once a permit is issued,
SWBT shall give to the City a minimum of forty-eight (48) hours
Ordinance 0-99-1151
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notice (which could be at the time of the issuance of the permit)
prior to undertaking any of the above listed activities on its
Network in, on or under the Public Rights-of-Way. The failure
of SWBT to request and obtain a permit from the City prior to
performing any of the above listed activities in, on or over any
Public Rights-of-Way, except in an emergency as provided for
in Subsection (10) below, will subject SWBT to a stop-work
order from the City and enforcement action pursuant to the
City's Code of Ordinances. If SWBT fails to act upon any permit
within 90 calendar days of issuance, the permit shall become
invalid, and SWBT will be required to obtain another permit.
(4) When SWBT completes construction, expansion, reconstruction,
removal, excavation or other work, SWBT shall promptly restore
the rights-of-way in accordance with applicable City
requirements. SWBT shall replace and properly relay and
repair the surface, base, irrigation system and landscape
treatment of any Public Rights-of-Way that may be excavated or
damaged by reason of the erection, construction, maintenance,
or repair of the SWBTs Facilities within thirty (30) calendar days
after completion of the work in accordance with existing
standards of the City in effect at the time of the work.
(5) Upon failure of SWBT to perform any such repair or replacement
work, and five (5) days after written notice has been given by the
City to SWBT, the City may repair such portion of the Public
Rights-of-Way as may have been disturbed by SWBT, its
contractors or agents. Upon receipt of an invoice from the City,
SWBT will reimburse the City for the costs so incurred within
thirty (30) calendar days from the date of the City invoice.
(6) Should the City reasonably determine, within two (2) years from
the date of the completion of the repair work, that the surface,
base, irrigation system or landscape treatment requires
additional restoration work to meet existing standards of the
City, SWBT shall perform such additional restoration work to the
satisfaction of the City, subject to all City remedies as provided
herein.
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(7) Notwithstanding the foregoing, if the City determines that the
failure of SWBT to properly repair or restore the Public Rights-
of-Way constitutes a safety hazard to the public, the City may
undertake emergency repairs and restoration efforts. SWBT
shall promptly reimburse the City for all costs incurred by the
City within thirty (30) calendar days from the date of the City
invoice.
(8) SWBT shall furnish the City with construction plans and maps
showing the location and proposed routing of new construction
or reconstruction at least fifteen (15) days [subject to Subsection
(D)], before beginning construction or reconstruction that
involves an alteration to the surface or subsurface of the Public
Rights-of-Way. SWBT may not begin construction until the
location of new Facilities and proposed routing of the new
construction or reconstruction and all required plans and
drawings have been approved in writing by the City, which
approval will not be unreasonably withheld, taking due
consideration of the surrounding area and alternative locations
for the Facilities and routing.
(9) If the City Manager declares an emergency with regard to the
health and safety of the citizens and requests by written notice
the removal or abatement of Facilities, SWBT shall remove or
abate the SWBT's Facilities by the deadline provided in the City
Manager's request. SWBT and the City shall cooperate to the
extent possible to assure continuity of service. If SWBT, after
notice, fails or refuses to act, the City may remove or abate the
facility, at the sole cost and expense of SWBT, without paying
compensation to SWBT and without the City incurring liability for
damages.
(10) Except in the case of customer service interruptions and
imminent harm to property or Person ("Emergency Conditions"),
SWBT may not excavate the pavement of a street or public
rights-of-way without first complying with City requirements. The
City Manager or designee shall be notified immediately
regarding work performed under such Emergency Conditions,
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and SWBT shall comply with the requirements of City standards
for the restoration of the Public Rights-of-Way.
(11) Within sixty (60) days of completion of each new permitted
section of SWBTs Facilities, SWBT shall supply the City with a
complete set of "as built" drawings for the segment in a format
used in the ordinary course of SWBTs business and as
reasonably prescribed by the City, and as allowed by law.
(12) The City may require reasonable bonding requirements of
SWBT, as are required of other entities that place Facilities in
the Public Rights-of-Way.
(D) In determining whether any requirement under this section is
unreasonable or unfeasible, the City Manager or his/her designee
shall consider, among other things, whether the requirement would
subject SWBT to an unreasonable increase in risk of service
interruption, or to an unreasonable increase in liability for accidents,
or to an unreasonable delay in construction or in availability of its
services, or to any other unreasonable technical or economic burden.
Sec. 7.
THAT the following conditions of Ordinance 0-98-1127 regarding Public
Rights-of-Way Occupancy shall apply under the Municipal Consent
Ordinance:
(A) In the exercise of governmental functions, the City has first priority
over all other uses of the Public Rights-of-Way. The City reserves the
right to lay sewer, gas, water, and other pipe lines or cables and
conduits, and to do underground and overhead work, and
attachments, restructuring or changes in aerial Facilities in, across,
along, over or under a public street, alley or Public Rights-of-Way
occupied by SWBT, and to change the curb, sidewalks or the grade
of streets.
(B) The City shall assign the location in or over the Public Rights-of-Way
among competing users of the Public Rights-of-Way with due
consideration to the public health and safety considerations of each
user type, and to the extent there is limited space available for
Ordinance 0-99-1151
Page 8 of 15
additional users, may limit new users, as allowed under state or
federal law.
(C) If, during the term of a Municipal Consent, the City authorizes abutting
landowners to occupy space under the surface of any public street,
alley, or Public Rights-of-Way, the grant to an abutting landowner
shall be subject to the rights of SWBT. If the City closes or abandons
a Public Right-of-Way that contains a portion of SWBT's Facilities,
the City shall close or abandon such Public Right-of-Way subject to
the rights conveyed in the Municipal Consent.
(D) If the City gives written notice, SWBT shall, at its own expense,
temporarily or permanently, remove, relocate, change or alter the
position of SWBT's Facilities that are in the Public Rights-of-Way
within 120 days, except in circumstances that require additional time
as reasonably determined by the City based upon information
provided by SWBT. For projects expected to take longer than 120
days to remove, change or relocate, the City will confer with SWBT
before determining the alterations to be required and the timing
thereof. The City shall give notice whenever the City has determined
that removal, relocation, change or alteration is reasonably necessary
for the construction, operation, repair, maintenance or installation of
a City or other governmental public improvement in the Public
Rights-of-Way. This section shall not be construed to prevent
SWBT's recovery of the cost of relocation or removal from private
third parties who initiate the request for relocation or removal, nor
shall it be required if improvements are solely for beautification
purposes without prior joint deliberation and agreement with SWBT.
If SWBT fails to relocate Facilities in the time allowed by the City in
this Section, SWBT may be subject to liability to the City for such
delay and as set forth in the City Codes or Ordinance, now or
hereafter enacted.
Notwithstanding anything in this Subsection (D), the City Manager
and SWBT may agree in writing to different time frames than those
provided above if circumstances reasonably warrant such a change.
Ordinance 0-99-1151
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(E) During the term of its Municipal Consent, SWBT may trim trees in or
over the rights-of-way for the safe and reliable operation, use and
maintenance of its Network. All tree trimming shall be performed in
accordance with standards promulgated by the City. Should SWBT,
its contractor or agent, fail to remove such trimmings within twenty-
four (24) hours, the City may remove the trimmings or have them
removed, and upon receipt of a bill from the City, SWBT shall
promptly reimburse the City for all costs incurred within thirty (30)
working days.
(F) SWBT shall temporarily remove, raise or lower its aerial Facilities to
permit the moving of houses or other bulky structures, if the City gives
written notice of no less than 48 hours. The expense of these
temporary rearrangements shall be paid by the party or parties
requesting and benefiting from the temporary rearrangements.
SWBT may require prepayment or prior posting of a bond from the
party requesting temporary move.
Sec. 8.
THAT the following requirements under Ordinance 0-98-1127 regarding
Insurance requirements shall apply under the Municipal Consent Ordinance:
(A) SWBT shall obtain and maintain insurance in the amounts reasonably
prescribed by the City with an insurance company licensed to do
business in the State of Texas acceptable to the City throughout the
term of a Municipal Consent conveyed under this Chapter. SWBT
shall furnish the City with proof of insurance at the time of filing the
acceptance of a Municipal Consent. The City reserves the right to
review the insurance requirements during the effective period of a
Municipal Consent, and to reasonably adjust insurance coverage and
limits when the City Manager determines that changes in statutory
law, court decisions, or the claims history of the industry or SWBT
require adjustment of the coverage. For purposes of this section, the
City will accept certificates of self-insurance issued by the State of
Texas or letters written by SWBT in those instances where the State
does not issue such letters, which provide the same coverage as
required herein. However, for the City to accept such letters SWBT
must demonstrate by written information that it has adequate financial
resources to be a self-insured entity as reasonably determined by the
Ordinance 0-99-1151
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City, based on financial information requested by and furnished to the
City. The City's current insurance requirements are described in
Exhibit "C" attached hereto.
(B) SWBT shall furnish, at no cost to the City, copies of certificates of
insurance evidencing the coverage required by this Section to the
City. The City may request the deletion, revision or modification of
particular policy terms, conditions, limitations or exclusions, unless
the policy provisions are established by a law or regulation binding
the City, SWBT, or the underwriter. If the City requests a deletion,
revision or modification, SWBT shall exercise reasonable efforts to
pay for and to accomplish the change.
(C) An insurance certificate shall contain the following required
provisions:
1. name the City and its officers, employees, board members and
elected representatives as additional insureds for all
applicable coverage;
2. provide for 30 days notice to the City for cancellation,
non-renewal, or material change;
3. provide that notice of claims shall be provided to the City
Manager by certified mail; and
4. provide that the terms of the Municipal Consent which impose
obligations on SWBT concerning liability, duty, and standard
of care, including the indemnity section, are included in the
policy and that the risks are insured within the policy terms and
conditions.
(0) SWBT shall file and maintain proof of insurance with the City
Manager during the term of a Municipal Consent or an extension or
renewal. An insurance certificate obtained in compliance with this
section is subject to City approval. The City may require the
certificate to be changed to reflect changing liability limits. SWBT
shall immediately advise the City Attorney of actual or potential
litigation that may develop or may affect an existing carrier's
obligation to defend and indemnify.
Ordinance 0-99-1151
Page 11 of 15
(E) An insurer has no right of recovery against the City. The required
insurance policies shall protect SWBT and the City. The insurance
shall be primary coverage for losses covered by the policies.
(F) The policy clause "Other Insurance" shall not apply to the City if
the City is an insured under the policy.
(G) SWBT shall pay premiums and assessments. A company which
issues an insurance policy has no recourse against the City for
payment of a premium or assessment. Insurance policies obtained
by SWBT must provide that the issuing company waives all right of
recovery by way of subrogation against the City in connection with
damage covered by the policy.
Sec. 9.
THAT the following requirements under Ordinance 0-98-1127 regarding
indemnity provisions shall apply under the Municipal Consent Ordinance:
(A) Each Municipal Consent granted under this Telecommunications
Ordinance shall contain provisions whereby SWBT agrees to
promptly defend, indemnify and hold the City harmless from and
against all damages, costs, losses or expenses (i) for the repair,
replacement, or restoration of City's property, equipment, materials,
structures and Facilities which are damaged, destroyed or found to
be defective solely as a result of SWBT's acts or omissions, (ii) from
and against any and all claims, demands, suits, causes of action, and
judgments for (a) damage to or loss of the property of any Person
(including, but not limited to SWBT, its agents, officers, employees
and subcontractors, City's agents, officers and employees, and third
parties); and/or (b) death, bodily injury, illness, disease, loss of
services, or loss of income or wages to any Person (including, but not
limited to the agents, officers and employees of SWBT, SWBT's
subcontractors and City, and third parties), arising out of, incident to,
concerning or resulting from the negligent or willful act or omissions
of SWBT, its agents, employees, and/or subcontractors, in the
performance of activities pursuant to such Municipal Consent.
Ordinance 0-99-1151
Page 12 of 15
Sec. 10.
Sec. 11.
(B) No Municipal Consent indemnity provision shall apply to any liability
resulting from the negligence of the City, its officers, employees,
agents, contractors, or subcontractors.
(C) The provisions of the required indemnity provision set forth in an
individual Municipal Consent shall provide that:
(1) It is solely for the benefit of the parties to the Municipal
Consent and is not intended to create or grant any rights,
contractual or otherwise, to any other Person or entity;
(2) To the extent permitted by law, any payments made to, or on
behalf of the City under the provisions of this section are
subject to the rights granted to SWBT under Sections 54.204-
54.206 of the Texas Utilities Code; and
(3) Subject to the continued applicability of the provisions of
Sections 54.204-54.206 of the Texas Utilities Code, as set
forth in (2) above, the provisions of the indemnity shall survive
the expiration of the Municipal Consent.
THAT SWBT shall request a renewal of a Municipal Consent by making
written application to the City Manager at least 90 days before the expiration
of the consent.
THAT within thirty (30) days following the date of the passage of any action
affecting the annexation of any property to or the disannexation of any
property from the City's corporate boundaries, the City agrees to furnish
SWBT written notice of the action and an accurate map of the City's
corporate boundaries showing, if available, street names and number
details. For the purpose of compensating the City under this Ordinance,
SWBT shall start including or excluding Access Lines within the affected
area in SWBT's count of Access Lines on the effective date designated by
the Comptroller of Public Accounts - Texas for the imposition of State local
sales and use taxes; but in no case less than thirty (30) days from the date
SWBT is notified by the City of the annexation or disannexation.
Ordinance 0-99-1151
Page 13 of 15
Sec. 12.
Sec. 13.
Sec. 14.
THAT the provisions of this ordinance are severable. However, in the event
this Ordinance or any tariff that authorizes SWBT to recover the fee(s)
provided for in this Ordinance or any procedure provided in this Ordinance
or any compensation due the City under this Ordinance becomes unlawful,
or is declared or determined by a judicial, administrative or legislative
authority exercising its jurisdiction to be excessive, unrecoverable,
unenforceable, void, illegal or otherwise inapplicable, in whole or in part, or
is exchanged for another means of compensation under higher authority,
SWBT and City shall meet and negotiate a new agreement that is in
compliance with the authority's decision or enactment. Unless explicitly
prohibited, the new agreement shall provide the City with a level of
compensation comparable to that set forth in this Ordinance as long as the
agreed-to compensation is recoverable by SWBT in a manner permitted by
law for the unexpired portion of the term of this Ordinance.
THAT the following provisions of Governing Law shall be applicable under
the Municipal Consent Ordinance:
(A) This Ordinance shall be construed in accordance with the City
Code(s) in effect on the date of passage of this Ordinance to the
extent that such Code(s) are not in conflict with or in violation of the
Constitution and laws of the United States or the State of Texas,
subject to the City's ongoing authority to adopt reasonable regulations
to manage its Public Rights-of-Way, pursuant to Sections 17 and 18
or as otherwise provided by law. Municipal Consent agreement
entered into pursuant to this Ordinance is performable in Tarrant
County, Texas and the venue is Tarrant County, Texas.
THAT the following provisions under Ordinance 0-98-1127 regarding
Termination shall apply to the Municipal Consent Ordinance:
(A) The City shall reserve the right to terminate any Municipal Consent
and any rights or privileges conveyed under this Chapter in the event
of a material breach of the terms and conditions of the Municipal
Consent or of this Chapter, subject to a thirty day written notice and
the opportunity to cure the breach during that thirty (30) day period.
(B) Material breaches of a Municipal Consent specifically include, but are
not limited to, continuing violations of Ordinance 0-98-1127 Sections
Ordinance 0-99-1151
Page 14 of 15
11 [Compensation to City], 17 [Construction Obligations] and/or 18
[Conditions of Public Rights-of-Way Occupancy], and the furnishing
of service of any kind that requires municipal authorization but that is
not authorized by Section 3(A).
(C) A material breach shall not be deemed to have occurred if the
violation occurs without the fault of SWBT or occurs as a result of
circumstances beyond its control. SWBT shall not be excused from
performance of any of their obligations under this Chapter by
economic hardship, nor misfeasance or malfeasance of their officers
or employees.
(D) A termination shall be declared only by a written decision by motion,
resolution or ordinance of the City Council after an appropriate public
proceeding before the City Council, which shall accord SWBT due
process and full opportunity to be heard and to respond to any notice
of grounds to terminate. All notice requirements shall be met by
giving SWBT at least fifteen (15) days prior written notice of any
public hearing concerning the proposed termination of its consent.
Such notice shall state the grounds for termination alleged by City.
Sec. 15.
THAT the effective date of this Ordinance shall be April 1, 1999.
AND IT IS SO ORDERED.
The first reading and public hearing being conducted on the
1999.
2-d
day of March
The second reading and public hearing being conducted on the
March 1999.
23r:d
day of
Ordinance 0-99-1151
Page 15 of 15
ATTEST:
U~
an Harris, TRMC, CMC
City Secretary
'~.~ OF COLLEYVILLE.
~ !b5--
Richard Newton
Mayor
EXHIBIT A
CITY OF COLLEYVILLE
APPLICATION FOR MUNICIPAL CONSENT FOR USE OF THE PUBLIC
RIGHTS-OF-WAY BY A TELECOMMUNICATIONS SERVICE PROVIDER
(Rev. 12/02/98)
RETURN TO: City of Colleyville
Attn: Terry Leake, Finance Director
PO Box 185
5400 Bransford Road
Colleyville, Texas 76034
APPLICATION FEE: $850.00*
*Applicant shall receive a credit against future payments to the City pursuant to
the Municipal Consent in the amount of the Application Fee.
INSTRUCTIONS
Complete the Application using information for the most recently completed fiscal year. When
providing the requested data, please specify whether it is actual or estimated and for what fiscal
year. Return the completed Application to the address above, with the Application Fee.
In the event you become aware of any change in data while the application is pending, you must
file supplemental information reflecting such change in data. Please indicate each question
number immediately above the response to the question.
The City will maintain confidentiality of any information provided pursuant to this application to
the extent permitted by law, when applicant notifies the City of the confidential nature of the
information, in writing in a conspicuous manner.
While not required for the Consent, to protect the public safety, an applicant may be asked to
provide documentation as to compliance with E-911 requirements if they are applicable, which
may include PUC filings. City will notify applicant of this requirement.
The City reserves the right to request additional information of the applicant as it relates to the
use of the public rights-of-way.
- 1 -
PART I.
IDENTIFICATION
1. State applicant's name, address, telephone number, fax number, a contact person,
and describe the business organization of applicant including whether applicant is:
(Check one:)
a. an individual;
b. X a corporation;
c. an unincorporated association;
d. a limited partnership;
e. a general partnership; or
f. any other legal entity (specify)
Southwestern Bell Telephone Company is wholly owned by its parent company, SBC
Communications Inc. Among other national and international subsidiaries owned
by SBC Communications are the following which provide products to the public in
Texas:
Southwestern Bell Messaging Services
Southwestern Bell Wireless
Southwestern Bell Video Services
Southwestern Bell Yellow Pages
Other potential users of the Network will include only those entities holding a
Certificate of Operating Authority (COA) or Special Provider Certificate of
Operating Authority (SPCOA) issued by the Public Utility Commission of Texas for
use in the area that includes the City of Colleyville.
Any notice or contact with SWBT pertaining to the Ordinance should be directed
to:
Southwestern Bell Telephone Company
Gary Terry
Director - External Affairs
1240 Park Place, Floor 1
Hurst, Texas 76053
2. If applicant is a corporation, or controlled by a corporation, attach as Exhibit "An
reasonable evidence of proper incorporation, such as a copy of the state issued
certificate of incorporation, or if certificated by the PUC, the PUC certificate (or
certificate number) in the corporate name.
On April 3, 1978, SWBT was granted CCN 40079, Certificate of Convenience and
Necessity, by the Public Utility Commission of Texas which authorizes SWBT to
-2-
provide telecommunications service in various geographic regions of the state,
including the area encompassed within the incorporated limits of the City of
Colleyville.
3. If applicant is an unincorporated association or partnership:
a. Information regarding the principal owners (greater than 10%) and ultimate
beneficial owners, however designated; and
b. indicate the legal organization of the applicant, and cite the laws under which it is
organized
4. Name any affiliates (in whatever form) of the applicant that will use the network.
Additional information on the affiliate and the use may be requested to determine if
they need a separate agreement.
PART II.
PROPOSED SERVICES
1. List generally the type of telecommunications services applicant proposes to provide
at present and, to the extent known, any services which may be provided in the future.
Additional information may be requested to determine if a separate agreement may be
needed i.e., cable franchise or agreement to operate an open video system.
As the incumbent local exchange carrier, SWBT will rely on its extensive network of
existing facilities to continue service to its customers in the City of Colleyville. As
new areas of the city are developed, it may become necessary for SWBT to extend or
reroute facilities to serve those areas. Under the obligations of the CCN granted by
the Texas Public Utilities Commission, Southwestern Bell Telephone Company is
required to provide service to any customer within its certificated area. Therefore,
Southwestern Bell Telephone Company would construct and extend its facilities to
serve any customer requesting service, and would do so in compliance with the
applicable construction rules and requirements of the City. Since such expansion
and development is unknown, routes of any required additions to existing facilities
are also unknown, thus preventing detail description of other facilities already in the
Rights-of-Way. Likewise, identification of obstructions along routes is not presently
possible. Once such routes are defined, SWBT will adhere to the standards for
construction described in the Ordinance and will collaborate on construction of new
facilities on a case-by-case basis. As required by the City, SWBT will follow any
permitting procedures provided for in Ordinance No. 0-98-1127.
2. While this is not necessary for a municipal consent, please answer if applicable. Does
the applicant hold (or has applied for) certificate of authorization from the State Public
Utility Commission or the Federal Communications Commission relevant to the
proposed telecommunications services to be provided in the City. (provide agency file
identification number, date of filing and a copy of authorization documentation)
Please see response to Section II Question #2.
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PART III. PROPOSED FACILITIES USE
1. Is applicant proposing to (check all boxes, which apply):
a. resell telecommunications services purchased
from other providers? X
Yes No
b. lease or otherwise acquire access to facilities or
"network elements" from other providers
(sometimes called a "rebundler" or facility "reseller")? X
Yes No
c. construct, own and/or control facilities in the
public rights-of-way? X
Yes No
(1) either sell or lease capacity on the network or of
the network elements of its
system? X
Yes No
(2) sell physical components of its system?
(i.e., fiber strands, conduit)
Yes
X
No
If applicant has checked only "a," in response to the previous question, go to Part IV; if
applicant has checked "b," but not "c," complete question 4, if applicant has checked c,
complete questions 2-3. (If an existing provider has authority to use the rights-of-way,
questions 2-3 only apply to facilities to be constructed after the date of the Municipal
Consent, to the extent known).
2. Please provide, to the extent known, a brief description of applicant's proposed
facilities and file as Exhibit "A," a block map marked with the proposed routing of any
facilities, to include whether they are to be underground or overhead, existing
underground utilities (i.e., water, sewer, gas, electric, telephone, cable, other). Also
include in detail any proposed removal or relocation of trees, landscaping or other
physical structures in the public rights-of-way.
Please see response to Section III . No.1.
3. If the proposed facilities are to be placed in and/or along City streets and
rights-of-way, submit an estimate of the distance (linear footage and maximum width
measurement) of the facilities to be placed in the public rights-of-way, to the extent
known.
Please see response to Section III. No.1
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4. If the applicant does not own the facilities, describe generally any relevant lease
agreements or interconnection arrangements allowing applicants use of any facilities
and the name of the facility/network element owner from whom the facilities are
leased.
PART IV.
PAYMENT OF MUNICIPAL FEES
Applicants that only check Box (a) in Section III may remit fee payments directly to the City or
through another provider.
1. Do you wish to remit fees through another provider?
Yes
No
2. If you have answered yes above, please identify the provider(s) through which
applicant has arranged to remit municipal consent fees. (Additional documentation
may be required)
PART V.
USE OF RIGHTS-OF-WAY REQUIREMENTS
Check the appropriate box:
The applicant has reviewed the City's Telecommunications Ordinance and understands
and can provide the appropriate insurance and bonds and can comply with the various
construction requirements in the rights-of-way.
Yes
No X
SWBT respectfully requests a five year term for the Municipal Consent and that the
effective date would be April 1, 1999.
CERTIFICATION OF APPLICANT
I, Gary Terry, Director - External Affairs, file this application as an authorized
representative of Southwestern Bell Telephone Company, and in that capacity I am authorized
to file this application and to certify that it is accurate to the best of my knowledge.
~r-7
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EXHIBIT B
City of Colleyville
Municipal Consent to Use the
Public Rights-of-Way
TELECOMMUNICATIONS SERVICE PROVIDER: Southwestern Bell Telephone Company
CONTACT NAME: Gary Terry
TELEPHONE NUMBER: 817-338-6764
ADDRESS: 1240 Park Place, Floor 1
CITY/STATEIZIP CODE: Hurst, Texas 76053
EFFECTIVE DATE: April 1, 1999
EXPIRATION DATE: April 1 ,2004
THIS CONSENT IS AUTHORIZED BY ORDINANCE NO.: 0-98-1127
ADOPTED ON: December 15, 1998
Municipal Consent to Use the
Public Rights-of-Way
1. PURPOSE AND INTENT.
THIS MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-OF-WAY (the
"Consent") is made and entered into as of A P R I L ~ 1 . , 1999, (the "Effective
Date") by and between City of COlleyville, a city duly organized under the applicable laws
of the State of Texas, (hereinafter referred to as "City"), and Southwestern Bell
[Telecommunication Company] ("Provider");
WHEREAS, the City, pursuant to federal law, state statutes, and local ordinances,
may consent to one or more non-exclusive agreements to construct and maintain a
Telecommunication Network in the Public Rights~f-way within the municipal boundaries
of the City as designated in Exhibit "A" ("City Area"); and,
WHEREAS, as applicable, the definitions of all words not defined herein shall be
as used in the Telecommunications Chapter of the Code of Ordinances, which is
incorporated herein for all purposes (Telecommunication Ordinance);
WHEREAS, the Provider has acknowledged the terms and conditions of the
Telecommunications Ordinance and understands that it is bound by them;
NOW, THEREFORE, Provider agrees to abide by the terms and conditions of this
Telecommunications Ordinance, as follows:
2. SCOPE OF CITY CONSENT.
The City hereby grants to the Provider, for a period of F I V E years from and after
the Effective Date of this Consent (the "Term"), the non-exclusive right to construct,
use, operate, own and maintain a Telecommunication Network in, on, under and
over the Public Rights~f-Way, as described in Exhibit .A,. subject to applicable
law, under the terms and conditions specifically set forth in the Telecommunications
Ordinance.
3. AUTHORITY NOT EXCLUSIVE.
This Consent and the grant conferred in Section 2 above are not exclusive,
pursuant to the Telecommunication Ordinance. The Provider shall respect the
rights and property of the City and other authorized users of the Public Rights-of-
Way.
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4. FEES AND COMPENSA TlON.
From and after the Effective Date of this Consent and throughout the full term of this
Consent, the Provider shall promptly pay to the City all fees and compensation
pursuant to the Telecommunication Ordinance.
5. CONSTRUCTION OF THE TELECOMMUNICA TION NETWORK.
5.1 Provider shall comply with the Telecommunication Network construction
requirements in accordance with the appropriate sections of the
Telecommunication Ordinance.
5.2 Permits Required - Provider shall not construct, reconstruct, or relocate the
Telecommunication Network (or parts thereof) within the Public Rights-of-
Way or on City Property unless authority has been obtained in accordance
with the Telecommunications Ordinance, or other applicable City
Ordinances.
5.3 Plan Review - Provider shall not commence construction unless and until
all maps and other documents are provided to the City. in accordance with
the Telecommunications Ordinance.
5.4 Construction Standards - Provider shall comply with construction standards
in the Telecommunications Ordinance.
5.5 Inspections - The Provider shall permit the City to conduct inspections of
construction or installation being performed to ensure compliance with the
Telecommunications Ordinance.
5.6 Scheduling - The Provider shall provide the City advance notice before
beginning construction or installation, except in the case of emergency,
pursuant to the Telecommunications Ordinance.
5.7 Restoration of Property - At its own cost and expense, Provider shall
promptly restore property disturbed by Provider's activities, pursuant to the
Telecommunications Ordinance.
5.8 Removal or Relocation of Facilities - The Provider shall remove or relocate
the Telecommunications Network as required by the Telecommunications
Ordinance.
5.9 Installations on City Property - No cable line, wire, amplifier, converter, or
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other piece of equipment owned by the Provider shall be installed by the
Provider in the Public Rights-of-Way or on any City property without first
securing the written permission of the city and/or lawful occupant of any
property involved.
5.10 Books and Records - The Provider shall keep books and records as required
by the Telecommunications Ordinance and in accordance with generally
accepted accounting principles.
6. TREE TRIMMING.
With reasonable prior written notice, the Provider may trim trees or other vegetation
owned by the City or encroaching upon the Public Rights-of-Way to prevent their
branches or leaves from touching or otherwise interfering with its wires. All trimming
or pruning shall be at the sole cost of the Provider.
7. REPORTS.
7: 1 The Provider shall make available to the City such infonnation or reports, as
required by the Telecommunications Ordinance.
7.2 The Provider shall allow the City to make inspections of any of the Provider's
facilities and equipment located within the Public Rights-of-Way with
sufficient notice as to not disrupt the operations of the Provider.
8. INDEMNITY AND INSURANCE.
(a) The Provider shall comply with applicable sections of the Telecommunication
Ordinance governing insurance.
(b) THE PROVIDER AGREES TO PROMPTLY DEFEND, INDEMNIFY AND HOLD THE
CITY HARMLESS FROM AND AGAINST ALL DAMAGES, COSTS, LOSSES OR
EXPENSES~) FOR THE REPAIR, REPLACEMENT, OR RESTORATION OF CITY'S
PROPERTY, EQUIPMENT, MATERIALS, STRUCTURES AND FACILITIES WHICH
ARE DAMAGED. DESTROYED OR FOUND TO BE DEFECTIVE SOLELY AS A
RESULT OF THE PROVIDER'S ACTS OR OMISSIONS, (ii) FROM AND AGAINST
ANY AND ALL CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, AND
JUDGMENTS FOR (a) DAMAGE TO OR LOSS OF THE PROPERTY OF ANY
PERSON (INCLUDING, BUT NOT LIMITED TO THE PROVIDER, ITS AGENTS,
OFFICERS, EMPLOYEES AND SUBCONTRACTORS, CITY'S AGENTS, OFFICERS
AND EMPLOYEES, AND THIRD PARTIES); AND/OR (b) DEATH. BODILY INJURY,
ILLNESS, DISEASE, LOSS OF SERVICES, OR LOSS OF INCOME OR WAGES TO
ANY PERSON (INCLUDING, BUT NOT LIMITED TO THE AGENTS, OFFICERS AND
EMPLOYEES OF THE PROVIDER, PROVIDER'S SUBCONTRACTORS AND CITY,
AND THIRD PARTIES), ARISING OUT OF, INCIDENT TO, CONCERNING OR
-4-
RESULTING FROM THE NEGLIGENT OR WILLFUL ACT OR OMISSIONS OF THE
PROVIDER, ITS AGENTS, EMPLOYEES, AND/OR SUBCONTRACTORS, IN THE
PERFORMANCE OF ACTIVITIES PURSUANT TO THIS MUNICIPAL CONSENT.
(c) This indemnity provision shall not apply to any liability resulting from the negligence
of the City, its officers. employees. agents, contractors, or subcontractors.
(d) The indemnity provision set forth above is:
(1) Solely for the benefit of the parties to this Municipal Consent and is
not intended to create or grant any rights, contractual or otherwise, to
any other Person or entity,
(2) To the extent permitted by law, any payments made to, or on behalf
of the City under the provisions of this section are subject to the rights
granted to Providers under Sections 54.204-54.206 of the Texas
Utilities Code; and
(3) Subject to the continued applicability of the provisions of Sections
54.204-54.206 of the Texas Utilities Code, as set forth in (2) above,
the provisions of the indemnity shall survive the expiration of this
Municipal Consent.
9. PROVIDER DEFAUL T AND REMEDIES.
If Provider fails to comply with this Consent or the Telecommunication Ordinance,
Provider will be subject to termination and remedies as provided for in the
Telecommunications Ordinance and herein.
10. COMPLIANCE WITH LAWS; SEVERABILITY.
10.1 Notwithstanding any other provisions of this Consent to the contrary, the
Provider shall at all times comply with all applicable police powers and
regulations of the City and all administrative agencies thereof.
10.2 If any provision of this Consent, the Telecommunications Ordinance or any
related ordinances, permits or licenses held by any court or by any Federal,
state, or county agency of competent jurisdiction to be invalid as conflicting
with any Federal, state or county law, rule or regulation now or hereafter in
effect, or is held by such court or agency to be modified in any way in order
to conform to the requirements of any such law, rule or regulation, said
provision shall be considered as a separate, distinct and independent part
of this or such other Consent or ordinances, permits or licenses, and such
holding shall not affect the validity and enforceability of all other provisions
hereof or thereof. In the event that such law, rule or regulation is
subsequently repealed, rescinded, amended or otherwise changed, so that
-5-
the provision hereof or thereof which had been held invalid or modified is no
longer in conflict with the law, rules and regulations then in effect, said
provision shall thereupon return to full force and effect and shall thereafter
be binding on the parties hereto, provided that the City shall give the
Provider sixty (60) days' written notice of such change before requiring
compliance with said provision.
10.3 If the City determines that a material provIsion of this Consent, the
Telecommunications Ordinance or any related Consent or ordinances,
permits or licenses are affected by such action of a court or of the Federal,
state or county government, the City and Provider shall have the right to
modify any of the provisions hereof or in such related documents to such
reasonable extent as may be necessary to carry out the full intent and
purpose of this Consent and all related documents.
11. TAXES AND PERMIT FEES.
Nothing contained in this Consent shall be construed to exempt the Provider from
any tax levy, sales tax or assessment which is or may be hereafter lawfully imposed
by the City as are generally applicable in the City or State.
12. SALE OR TRANSFER.
With respect to the sale or transfer of the Consent or Telecommunication Network,
the Provider shall comply with appropriate sections of the Telecommunications
Ordinance.
13. SERVICE OF NOTICE.
13.1 All notices required or permitted to be given to either party by the other party
under any provisions of this Consent shall be in writing and shall be deemed
served:
(a) When delivered by hand or by Federal Express
or similar service to that party's address set forth
below during normal business hours; or
(b) When mailed to any other person designated by
that party in writing herein to receive such
notice, via certified mail, return receipt
requested.
-6-
13.2 Notice shall be given to the following:
(a) If to City:
Bob Stripling, City Manager
City of Colleyville
P.O. Box 185
5400 Bransford Road
COlleyville, Texas 76034
(b) If to Provider:
GARY TERRY, DIRECTOR --EXTERNAL AFFAIRS
1240 PARK PLACE, FLOOR 1
HURST, TX 76053
14. FORCE MAJEURE.
Any delay, preemption, or other failure to perform caused by factor beyond the
parties' reasonable control, such as an act of God, labor dispute, non-delivery by
non-affiliated suppliers, war, riot, technical breakdown, or government
administrative or judicial order or regulation, shall not result in a default of the
Consent. Each party shall exercise its reasonable efforts to cure any such delays
and the cause thereof, and performance under the terms of this Consent shall be
excused for the period of time during which such factor continues.
15. CONSTRUCTION AND JURISDICTION.
In the event of any conflict between this Consent and the Telecommunications
Ordinance, the Ordinance terms shall prevail and control. Providers obligations
and rights as a user of the Public Rights-of-Way within the City are governed by
federal and state law and the terms of the Telecommunications Ordinance and are
not modified or expanded through the execution of this Municipal Consent.
This Consent is made and performed in Tarrant County, Texas and it shall be
construed in accordance with laws in the State of Texas and the City. Any suit to
enforce this Consent shall be brought in Tarrant County, Texas.
-7-
16. ACKNOWLEDGMENT THA T TERMS ARE UNDERSTOOD.
The Provider acknowledges that it has read and fully understood the terms of both
the Consent and the Telecommunications Ordinance and accepts the terms and
conditions herein and as required in the Telecommunications Ordinance. Provider
also understands that its obligations and rights as a user of the Public Rights-of-
Way within the City are governed by federal and state law and the
Telecommunications Ordinance and are not modified or expanded through its
execution of this Municipal Consent.
IN WITNESS THEREOF, the parties have signed below, effective as of the Effective
Date, by their duly authorized representatives.
ACCEPTED:
City of Colleyville .City"
Telecommunication Company "Provider"
By. C~~
{!.I<obetj./ Sf" ip Ii -,
City Manager '
By. ax;d
/)/ivi d ~DJe
Authorized Agent
~
'I-/~ 91
-8-
EXHIBIT "AIt
PUBLIC RIGHTS-OF-WAY THAT MAY BE USED BY THE PROVIDER
Check applicable box:
Q Any public rights-of-way in the City
Q\l.
City Initial
~Initial
t: ~ '"
prO~ial
~
Q Only areas as described in the attached
Map
C)l
City Initial
01/18/99dm
-9-
TEXAS DEPARTMENT OF PUBLIC SAFETY
5805 N LAMAR BLVD BOX 4087 AUSTIN TX 78773-0001
July 16, 1996
SAFETY RESPONSIBILITY BUREAU
512/424.2600
JAMES R. WILSON
DIRECTOR
COMMISSION
JAMES B. FRANCIS. JR
CHAIRMAN
ROBERT B. HOw
RONALD 0. KRIST
COMMISSIONERS
DUDLEY M. THOMAS
ASST. DIRECTOR
SOUTHWESTERN BELL TELEPHONE COMPANY
1010 PINE STREET
ST. LOUIS, MO 63101
RE: Self Insurance Certificate No. ~
Southwestern Bell Tefephone Company
To Whom It May Concern:
This is to certify that the above entity has been approved as a self insurer under the Texas
Motor Vehicle Safety Responsibility Act and assigned Self-Insurance Number~. This
number should be inserted in the space provided on the SR-21, Insurance Information form,
which is to be attached to the accident report form in reporting all accidents.
This approval is effective July 16, 1996 and will remain valid for three (3) years unless it
should be cancelled by the Department. On July 16, 1999 this certificate will expire and
become void.
Sincerely yours,
~a.- cj.. ~
Joyce E. Stevens, Manager
Safety Responsibility Bureau
JES/cap
IT IS THE POSITION OF THE DEPARTMENT
OF PUBLIC SAFETY THA T THIS
CERTIFICATE OF SELF-INSURANCE
EXEMPTS FROM THE AUTOMOBILE
LL-\.BILITY INSURANCE REQUIREMENTS
OF SECTION 601.051(1) AND 601.053. ONLY
THOSE VEHICLES REGISTERED IN THE
N.A...l'vlE OF THE ENTITY TO WHOM THE
CERT~CATEIS ISSUED.
COURTESY . SERVICE. PRClT8:T10N
TEXAS WORKERS' COMPENSATION COMMISSION
DIVISION OF SELF-INSURANCE REGULATION
CERTIFICATE OF AUTHORITY TO SELF-INSURE
Southwestern Bell Telephone Company
has complied with the requirements of the Texas Labor Code, Sections 407.001 to 407.133,
inclusive, of the Texas Workers' Compensation Act and with Chapter 114 of the rules adopted by
the Texas Workers' Compensation Commission and is hereby granted this Certificate of Authority
to Self-Insure. This renewal certificate is valid for one year from the effective date.
The certified self-insurer is subject to continued compliance with the Texas Workers'
Compensation Act, and this certificate may be revoked in accordance with Section 407.046 of the
Texas Workers' Compensation Act and Ru1e 114.15 adopted by the Texas Workers' Compensation
Commission.
Further, the certified self-insurer is hereby given notice that pursuant to the Texas Workers'
Compensation Act, the T exas Workers' Compensation Commission has a right of access to the
worksite(s) of certified self-insurers for inspection purposes in furtherance of the Texas Workers'
Compensation Act and its applicable provisions.
DATED AT AUSTIN, TEXAS,
THIS 6TH DAY OF AUGUST, 1998
CERTIFICA TE NUMBER:
CSI-93-0030
12:01 AM ON NOVEMBER 15, 1998
~~
ED BUCHANAN
ACTING DIRECTOR OF SELF-INSURANCE REGULA nON
EFFECTIVE DATE:
EXHIBIT "C"
City of Colleyville
Insurance Requirements
I. Comprehensive General Liability
This insurance shall be an occurrence type policy written in comprehensive form and shall protect the
contractor and his subcontractors and the Additional Insureds against all claims arising from bodily injury,
sickness, disease, or death of any person other than the contractor's employees or damage to property of
the City of Colleyville or others arising out of the act or omission of the contractor or his subcontractors or
their agents, employees, or subcontractors. This policy shall also indude protection against daims
insured by usual personal injury liability coverage, a (protective liability) endorsed to insure the
contractual liability assumed by the contractor and his subcontractors under the article entitle
indemnification and completed operations, products liability, contratural liability, broad form property
coverage, premises/operations, and independent contractors.
Bodily Injury and Property Damage -
$250,000 per person
$500,000 per occurrence
II. Comprehensive Automobile Liability
This insurance shall be written in the comprehensive form and shall protect the contractor and his
subcontractors and the additional insured against all claims for injuries to members of the public and
damage to property of others arising from the use of motor vehicles, and shall cover operation on and off
the site of all motor vehides licensed for highway use, whether they are owned, non-owned or hired. The
liability shall not be less than:
Bodily Injury and Property Damage -
$250,000 per person
$500,000 per occurrence
III. Worker's Compensation and Employer's Liability
This insured shall protect the contractor and his subcontractors and the Additional Insureds against all
claims under applicable state worker's compensation laws. The insured shall also be protected against
claims for injury, disease or death of employees which, for any reason, may not fall within the provision of
a workers' compensation law. This policy shall include an all-states endorsement. The liability shall not
be less than:
Worker's Compensation -
Employers' Liability
Disease policy limit
Statutory
$100,000 each accident; $500,000
$100,000 Disease - each employee