HomeMy WebLinkAbout91-2884~~
SOUTHWESTERN BELL TELEPHONE
ORDINANCE NO. 91-2884
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AN ORDINANCE WHEREBY TH$ CITY OF PLAINVIEW,
TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY
AGREE THAT, .FOR THE PURPOSE OF OPERATING ITS
TEGECOMM[JNICATiONS BUSINESS, THE TELEPHONE
COMPANY SHAD, MAINTAIN AND CONSTRUCT ITS POLES,
WIRES, -ANCHORS; FIBER, CABLES, MANHOLES., CONDUITS
AND OTHER PHYSICAL PLANT 'AND APPURTENANCES IN,
ALONG, .ACROSS, ON, OVER, THROUGH,. ABOVE AND UNDER
ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS,
SIDEWALKS, BRIDGES OR PUBLIC WAYS IN SAID CITY;
PRESCRIBING THE ANNUAL COMPENSATION DUE THE CITY
UNDER THIS ORDINANCE; PRESCRIBING THE CONDITIONS
GOVERNING THE USE 'OF PUBLIC RIGHTS-OF-WAY
AND THE PERFORMANCP OF CERTAIN CONSTRUCTION
- WORK ' ON PTJBLIC RIGHTS-OF-WAY FOR THE TELEPHONE
COMPANY'S TELECOMMUNICATIONS BUSINESS, PROVIDING
AN INDEMNITY CLAUSE; SPECIFYING GOVERNING LAWS;
PROVIDING FOR A RELEASE OF AT,T, CLAIMS UNDER PRIOR
ORDINANCES; PROVIDING FOR FUTURE CONTINGENCIES;'
PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ORDINANCE BY
THE TELEPHONE COMPANY; AND PROVIDING FOR A TERM
AND AN EFFECTNE DATE.
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WHEREAS, Southwestern Bell Telephone company {hereinafter .referred: to as
the "TELEPHONE COMPANY") is 'now and has been engaged in the
telecommunications business in the 'State of Texas and in furtherance thereof,
has erected and maintained certain items of its physical plant i.n. the City of
Painvievv, Texas {hereinafter referred to as the "CITY") for many years
pursuant to such rights as have been granted it by and under the lawn of
the State of Texas, and subject to the reasonable exercise of the police
powers granted by and under said laws o the CITY; and
WHEREAS, the TELEPHONE COMPANY has operated its telecommunications
business in the CITY under successive ordinances of the CITY, the last of
which was `Ordinance l~To. 782 adopt d March 4, 1963, which provided
compensation "to the CITY` for the 'sup rintendence of that agreement based
upon a percentage of gross receipts received by the. TELEPHONE COMPANY
from certain local services rendered within the corporate limits of the CITY;
and
WHEREAS, the CITY and the TELEPHONE COMPANY have chosen. the method
of determining the amount of compensation provided for in this Ordinance to
eliminate -the expense and time related to audits, to achieve administrative
simplicity, to provide the CITY with predictable revenues' and an opportunity
for growth and to avoid the expense. ''and delays of litigation which could be
necessary to resolve .any issues in controversy between the parties; and
WHEREAS, - it is to be the mutual advantage of both the CITY and the
- TELEPHONE COMPANY that an agreement should be entered into between the
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TELEPHONE COMPANY and the CITY: establishing the conditions under which.
the TELEPHONE COMPANY shall maintain and construct its physical. plant in ~,.'" ""~~,
the CITY in the future;
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NOW, THEREFORE, BE IT ORDAINED by the .City Council of the. City of
Plainview, Texas, ; that • _
SECTION 1. - PURPOSE Pursuant to the laws of the State of Texas, the
CITY Charter and this Ordinance, the TELEPHONE COMPANY has the
NON-EXCLUSIVE right and privilege to USE the public RIGHTS-OF-WAY in
.the City for the operation of a telecommunications system subject to the
restrictions set forth herein. The TELEPHONE COMPANY may USE such
RIGHTS-OF-WAY for its telecommunications FACILITIES. The TELEPHONE
COMPANY'S FACILITIES and TRANSMISSION MEDIA used in or incident to the
provision: of telecommunications service and to the maintenance of a
telecommunications business by the TELEPHONE COMPANY in the CITY shall
remain as now canstructed, subject to such changes as under the conditions
prescribed in this ordinance may be considered necessary to the public health
and safety. by the CITY in the exercise of its lawful police powers and such
changes and extensions as may be considered necessary by the TELEPHONE
COMPANY in the pursuit of its telecommunications business . The terms of
this Ordinance shall apply throughout the CITY, and to all operations of the
TELEPHONE COMPANY within the CITY, and shall include all operations and
FACILITIES used in whole or in part in the provision of telecommunications
services in the newly annexed areas upon the effective date of any
_ annexation .
SECTION 2 - ADDITIONAL- AUTHORITY REQUIRED The TELEPHONE
COMPANY is .not. authorized. to provide cable .television service in the CITY
under:. this. Ordinance,... but:. must, first. obtain a separate agreement from the
CITY far that purpose, under :such terms .and conditions as may be required
by law. This Section does not preclude the telephone .company .from
providing ..its tariffed services to cable television. companies..
SECTION 3 - DEFINITIONS Whenever :used in this Ordinance,. the following
words and terms shall have the definitions and meanings provided in this
Section
(a} FACILITIES: all TELEPHONE COMPANY duct spaces, ..manholes., poles,.
conduits,, underground and overhead passageways, and other
equipment, structures and appurtenances. and all associated
TRANSMISSION MEDIA.
(b) USE: any TELEPHONE COMPANY acquisition, construction,
reconstruction, maintenance or operation of any FACILITIES in, over,
under, along, through: ar across the .public RIGHTS-OF-WAY for .any
purpose whatsoever.
(c) CITY: The City of Plainview, Texas....
(d) RIGHTS-OF-WAY: all present. and future streets, avenues, highways,
alleys, bridges and public properfy, .excluding public buildings, within
the city limits of the CITY. `..
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(e) DIRECTION OF THE CITY: all ordinances, laws, rules, regulations,
;~"'~ and charter provisions of the CITY `now in force or that may hereafter
be passed.. and adopted which are not inconsistent with this .Ordinance.
{f) TRANSMISSION MEDIA: all TELEPHONE COMPANY cables, fibers, i+v%res
or other physical: devices used to transmit andlor receive communication
.signals, whether analog, digital or of other characteristics, .and whether
for voice, data. or other purposes .
(g) NON-EXCLUSIVE: no righ~s agreed to in this Ordinance by the CITY
shall be exclusive, and the. CITY reserves the right. to grant.
franchises, licenses:, easements or permissions to use the public
RIGHTS-OF-WAY within the CITY to any person or entity as the CITY,
in its' sole discretions, may determine to be in the public interest.
(h) TELEPHONE COMPANY: Southwestern .Bell Telephone Company.
SECTION 4 -TERM This Ordinance shall continue for a period of three (3 )
years from the effective .date; provided that at the expiration of the initial
period:, such term may be extended by mutual written agreement with the
CITY and TELEPHONE COMPANY.
SECTION 5 - SUPERVISION BY CITY OF LOCATION OF POLES AND
CONDUITS All poles placed shall be of sound material and reasonably
straight, and shall be set 'so that they will not interfere with the flow of
Tcvater in any gutter or drain, and so that the same will not unduly interfere
with ordinary. travel on the streets or sidewalks. The location and route of
`~. all poles , tubs - guys, anchors , conduits , ..fiber and cables placed and
constructed by the TELEPHONE COMPANY in the construction and
maintenance of its telecommunications system in the CITY shall be subject to
the lawful., .reasonable and proper control and DIRECTION OF THE .CITY.
Whenever it shall be necessary the .CITY can require the TELEPHONE
COMPANY to change facilities within the RIGHTS-OF-WAY, without .charge to
the CITY. Changes must be made promptly. TELEPHONE COMPANY can
present- 'alternative proposals, which must be given due consideration by '.the
CITY. The' City may not require the removal of FACILITIES from' 'the
RIGHTS-OF-WAY. If a change is for the convenience of another party, the
TELEPHONE COMPANY is not required.. to make such changes until the other
party pays. for any loss and expenses caused thereby. Thee City: will not be
.liable to the TELEPHONE COMPANY for damages for service interruptions as
result of such changes .
SECTION 6 - ATTACHMENTS TO POLLS AND SPACE IN DUCTS Nothing
contained' in this` Ordinance shall ' be construed. to require or permit any pole
attachments. for electric light or power wires or communications facilities or
systems not provided ` by the TELEPHONE COMPANY to be attached to the
TELEPHONE COMPANY'S poles or ether physical plant or placed in the
TELEPHONE COMPANY'S conduit. If the CITY desires pole attachments for
electric light or` .power wires or communications facilities or systems not
provided by the `TELEPHONE COMPANY, or if the CITY desires to place
~~ communications facilities or systems .not provided by the TELEPHONE
i COMPANY in any mELEPHONE COMPANY duct, then a 'further. separate,
~," noncontingent agreement shall be prerequisite to such attachment(s)' or such
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use of any duct by the CITY. Nothing contained. in this. Ordinance shall
obligate... or restrict the TELEPHONE COMPANY in exercising its rights
voluntarily to enter into pole.. attachment, pole usage, joint ownership or other
wire space or facilities agreements with light and/or power companies or with ' °-
other -wire-using companies which are authorized to operate... within the CITY.
SECTION 7 - STREETS TO BE RESTORED TO PRE-EXISTING CONDITION
The surface of any public street, avenue, highway, alley or public place.
disturbed: by the TELEPHONE COMPANY in the construction or maintenance ' of
its telecommunications system shad be ,restored within a reasonable time after
the completion of .the work to as good. a condition as before the commencement
of the work. Should .the CITY .reasonably determine, within one year from
the date of such restoration,... that. such surface requires additional restoration
work to place it in as good a condition as before the commencement of the
work, the TELEPHONE COMPANY shall perform such additional restoration
work to the reasonable satisfaction of the CITY. No public street, avenue.,.
highway, alley or public place shall be encumbered. for a longer period than
shall be necessary to :execute all work:...
The TELEPHONE. COMPANY will provide the CITY .with timely, complete and
lon 'th ma s
continuous information regarding location of all.- conduits., a g wl p ,
plats, and construction documents and drawings as exist or may be created.
The TELEPHONE COMPANY will submit plans for: projects involving significant
under oun:d FACILITIES o be ' laced in ''RIGHTS-OF-WAY to the
amounts of P
', CITY, for .review and approval ,prior to construction. _
Except in an emergency, the TELEPHONE. COMPANY will not excavate any
- o the ..CITY. If a roval is re uired
RIGHTS-OF WAY without prior notice, t pp q y
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it will be .given if, the proposed ..excavation is in compliance with the Direction
~~ of the CITY..
SECTION 8 - TEMPORARY REARRANGEMENT OF AERIAL WIRES .:Upon.
request, the TELEPHONE COMPANY shall remove or raise ar lower its aerial
wires, fiber or cables ,temporarily to permit the moving of houses or other
bulky ,structures . ~, The reasonable and necessary expense of such temporary
rearrangements s ,'ball be paid by the parts= ar parties requesting them, .and
the TELEPHONE ~ COMPANY may .require payment in advance. The
TELEPHONE COMPANY shall be, given not less' than forty-eight (48) ;hours
advance notice to ',arrange for such temporary rearrangements .
SECTION 9 - TREE TRIMMING The right, license, privilege and permission
is hereby granted to the TELEPHONE COMPANY, its contractors and agents,
to trim' trees': upon and averhangi.ng :the streets, avenues.; highways, alleys,
sidewalks and public places of the CITY so as to prevent the branches of
such trees from coming.. in contact. with the aerial wires, fiber ar cables of the
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COMPANY and when so directed b the CITY or of any:.CITY
' TELEPHONE y
official'to whom. said duties, have been or may be, delegated'.
SECTION 10 - INDEMNITY The TELEPHONE COMPANY shall indemnify and
hold the CITY .:harmless from all costs, expenses (including attorney's fees)
anal damages to persons or property. arising directly or indirectly out of the
E COMPANY'S
construction, maintenance or operation of the :TELEPHON ~
FACILlTIES located within the public .RIGHTS-C)F-WAY faunal to be caused.. ~,
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soley by negligence of the TELEPHONE COMPANY.. This. provision is not
/ ~ ~ intended to create a .cause of action or liability for the benefit of third
~ parties but is solely for. the benefit of the TELEPHONE COMPANY and the
_ _ CITY.
SECTION 11 -ADMINISTRATION OF ORDINANCE
(a) The CITY may, at any time, make inquiries pertaining to this Ordinance
and the TELEPHONE COMPANY shall respond to such inquiries on a timely
basis
(b) Copies of petitions, .applications, ..communications and reports submitted
by the TELEPHONE .COMPANY to the Federal Communications Commission or
the Public Utility Commission of Texas shall be provided to the CITY upon
request.
(c) The CITY may establish, after .reasonable. notice, such rules and
regulations as may be appropriate for the administration of this Ordinance and
the constxiuction of the TELEPHONE COMPANY'S FACILITIES on CITY
property' to the extent "permitted by -law.
SECTION 12 -COMPENSATION TO THE CITY
(a} As compensation for the use,.: occupancy, oversight, supervision and
regulation of the CITY'S RIGHTS-OF-WAY, and ixi lieu of and in full
compensation for any lawful. tax or license or charge or RIGHT-OF-WAY
permit fee or inspection fee, whether- charged to the TELEPHONE COMPANY
`~,_ _ ; or its contractor{ s) , or any RIGHT-OF-WAY easement or street- or alley rental
or franchise tax or other character of charge 'for use and occupancy of the
RIGHTS-OF-WAY within the CITY, except the usual general ad valorem taxes,
special assessments in accordance with State law or sales taxes now ar
hereafter levied by the CITY in .accordance. with State law, the City hereby
imposes a charge upon .the Gross Receipts (as hereinafter defined} of the
TELEPHONE COMPANY. The amount of the charge for the first :year this
Ordinance- is in effect shall be $90, 000..00. For the second year this Charge
shall be $100,000.00'ncreased. by_the Growth Factor as set forth in paragraph
12{c), if applicable. For the third year the Charge shall be calculated by
adding $11, 500.00 to the second years Charge and that sum shall be
increased by the Growth Factor, if-applicable.
The TELEPHONE COMPANY will, according to tariff, bill such Charge to the
customers billed the customers service charges,, included within the term
"Gross Receipts," as defined herein. Grass Receipts, for 'the purposes of
this Charge,. shall include only customer service charges which meet all four
of the following conditions : (1) such charges are for TELEPHONE'- COMPANY
services provided within the CITY; (2) such charges are' billed through the
TELEPHONE COMPANY'S Customer Records Information System {~'CRIS") (3)
such charges are the recurring charges for the local exchange access rate
element specified in the TELEPHONE .COMPANY'S tariffs filed with the PUC;
(4) such charges rare subject to an interstate end user common line ("EUCL")
charge as imposed by the Federal Communications Commission { "FUC")
Far the second and subsequent years while this .Ordinance remains in effect,
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the above Charge is subject to adjustment by application of the Growth:. Factor
set out in paragraph 12(c). This adjustment for the Growth Factor will be ~~,~.
made effective as of each anniversary' date of this Ordinance.. ~,
The TELEPHONE COMPANY shall adjust its billings to customers accounts for
any undercollection or overcollection for the :prior year.
(b) The Charge for each year shall be paid in four- (4) equal installments on
May 31, August _31, November 30, and February 28, except for the final
installmenf for the last year which shall be due as hereafter provided. This
final installment for the year in which this Ordinance expires, after making
any necessary :...adjustment for the balance of any overcollection or
undereallection of the Charge to or from the TELEPHONE COMPANY'S
customers, shall be .paid to the -CITY within one hundred fifty (150) days
following the date of expiration of this ordinance . In the event of any
overcollection balance from customers at the expiration of this Ordinance, the
TELEPHONE COMPANY may make a pro rate one-time credit to the customer
billing ,for affected customers who are .billed for a service included within
Gross Receipts; as defined in paragraph 12(a} provided, however,. if it is
impractical to credit. such overcollection, to customers, then such overcollection
shall be paid to the CITY.
(c) The Growth Factor shall be calculated by dividing the TELEPHONE
COMPANY`S ..revenues .within the corporate limits of the CITY. ubject to the
State Telecommunications sales tax ("Sales. Tax. Revenues") applicable - to
services rendered within the corporate omits `of the CITY for the twelve
month. period ending three (3) months prior to the next anniversary date of
by the Sales Tax Revenues fore the twelve month .period ending
this .Ordinance.. ~,~
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three (3) months prior to either the initial effective date or th.e preceding
anniversary ...:.date of this Ordinance as 'applicable . The Growth Factor.
calculated by the method set forth in the preceding sentence, if greater than.
shall be .multiplied. by the appropriate year`s charge as stated above.
one,.
.
The TELEPHONE COMPANY will adjust its customer billing to account for the
Growth Factor:. calculated above. Once the Growth Factor calculation is
completed, .the TELEPHONE :COMPANY will provide the CITY with the Sales
Tax Revenues :.upon which the Growth Factor calculation. was based.
The CITY agrees_ to rely upon audits by the Texas Comptroller of Public
Accounts of State Telecommunications .sales .taxes as reported by the
TELEPHONE COMPANY which are performed in compliance with Sections
151.023 and 151.027. of the Texas Tax Code Annotated (Vernon`s 1982) .
(d) Such :payments shall not relieve. the TELEPHONE C(JMPANY from paying
all. applicable municipally owned utility service charges. Should the CITY not
have the legal power to agree. that the payment ,of the foregoing charge ..shall
be in ..lieu of _the taxes, licenses; .charges; .RIGHTS-OF-WAY permit or
inspection fees,: rentals, RIGHTS-OF-WAY easements or franchise .taxes
'CITY ;agrees that it .will apply so much of such payments
aforesaid, then the.
.
as may be necessary to the satisfac#ion of :the TELEPHONE COMPANY'S
obligation, if any, to pay any such.. taxes, licenses, charges,
RIGHTS-OF-WAY permit or .inspection fees, rentals, RIGHTS-OF-WAY
easements or franchise taxes.
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(e) In the `event- that either (1) territory within the boundaries of the CITY
%- ~ shall be dsannexed and a new incorporated municipality created' which
includes such territory or` (2) an entire, existing incorporated municipality
shall ' be consolidated or annexed into the CITY, then notwithstanding any
other .provision of this Ordinance, the Charge =shall be adjusted. To
accomplish this adjustment, within thirty days following the action affecting a
disannexation/annexation as described above, the CITY shall provide the
TELEPHONE COMPANY with maps of the affected area(s) showing. the new
boundaries of the CITY.
In the event of an annexation as described above, the Charge fore the CITY
will be adjusted to include the amount- of the payment by the TELEPHONE
COMPANY to the existing incorporated municipality being annexed. In the
event that the annexed municipality had no ordinance imposing a charge. ar in
the event of a disannexation, then the adjustment to the charge ..will be
calculated using the effective date of the imposition of Local Sales Taxes as
determined by the Texas Comptroller of Public Accounts . The adjustment
shall be the percent increase/decrease in the TELEPHONE COMPANY'S Gross
.Receipts as defined herein for the CITY 'for the first calendar month following
the .Local 'Sales Tax effective date :compared to the last month prior to such
effective date. This adjustment to the charge will be made on the first day
of thee' second month following the Local Sales- Tax effective date and the
adjusted charge shall be prorated ` from that date through the remainder of 'the
payment year. The charge as adjusted shall be used: for all future
calculations required by this Ordinance.
'_ SECTION 13 -ASSIGNMENT OF ORDINANCE This Ordinance and any rights
`:_, ; ; or privileges', hereunder shall not be assignable to any other `entity without
the express' consent' of the CITY. Such consent shall be evidenced by an
ordinance which shall fully recite the terms and conditions, if any, upon
which such consent. is given..
SECTION 14 - MUTUAL. RELEASES The CITY hereby.. fully releases.,
discharges,. settles and compromises any.- and all claims which the ;CITY has
made or could. have made arising out of or connected with Ordinance Number
782 adopted March 4, 1963, and renewed ' or extended', from time to time
thereafter,. and its predecessor ordinances, if any, (hereinafter referred to
collectively as "Ordinance 782") . This full and complete release of claims for
any matters under Ordinance 782 shall be for the benefit of Southwestern Bell
Telephone Company; its parent; its affiliates; their directors, officers and
employees; successors and.. assigns; and includes any and all' claims,. actions,
causes of action and controversies, presently known 'or unknown, arising
directly- or indirectly 'out °of or connected with .the TELEPHONE COMPANY'S
obligations to the CITY pursuant to the provisions of Ordinance 782.
Southwestern Bell Telephone Company, it's parent, its affiliates,. successors
and assigns. hereby .fully release, discharge, settle and compromise any and
all' claims,.. actions, causes of action or controversies heretofore made or which
could have been- made,' known ar unknown, against the -CITY, Fits officers or
its employees, arising out of or connected with any matters under Ordinance
782.
~/ It is the intent of the CITY and the TELEPHONE .COMPANY to -enter into the
~~-- -' foregoing mutual releases in order to reach a compromise that is
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acceptable to both the CITY and the TELEPHONE .COMPANY. This Ordinance
and the mutual releases.. set forth in this' Section represent a compromise of
each party's. claims as well as each party's: defenses., and is ..not intended tq
be, and is not an admission of liability or vulnerability by either party to `the
other srvith respect to either the claims or ...the defenses asserted against the.
other.-
SECTION 15 - REPEAL OF CONFLICTING ORDINANCES AND AGREEMENTS
Ordinance No. ?82 adopted:. March 4 1963, is hereby repealed;' provided
however, such repeal shall. take effect at 11:59 p.m. on the day immediately
preceding the effective date specified in the Section of thin Ordinance entitled
"ACCEPTANCE OF AGREEMENT AND .EFFECTIVE DATE" . All other.
ordinances and agreements and parts of ordinances and agreements in conflict
herewith are also repealed, .which repeal shall take effect at the time and on
the date specified in the preceding sentence.
SECTION 16 -FUTURE' CONTINGENCY Notwithstanding anythimg contained in
this Ordinance to the contrary, in the event that (a) this Ordinance or any
part hereof, (b) any tariff, provision by which the TELEPHONE COMPANY
seeks to collect the Annual Charge imposed by this Ordinance, or (c) any
procedure provided in .this Ordinance, or (d) any compensation due the CITY
under this Ordinance; becomes or is declared or determined by a judicial,
administrative or legislative authority.. exercising its jurisdiction to be
excessive, .unrecoverable, void, unlawful -or otherwise inapplicable, in whole
or in part.,.. the TELEPHONE COMPANY and. CITY shall meet and negotiate a
new ordinance that is in compliance with the authority's decision or enactment
and, unless explicitly prohibited?:, the new ordinance shall provide the CITY
with a level of compensation comparable to that set forth in this Ordinance
pravded that such compensation is recoverable by the TELEPHONE COMPANY
in a ,mutually agreed manner by law for .the unexpired portion of the term of
this Ordinance .
SECTION 1? - GOVERNING LAW.. (a} This.. Qrdinance shall be construed in
accordance with the CITY Charter and CITY code(s) in effect on the date of
passage of this .Ordinance to the extent That such Charter and code(s).. are
note. in .conflict with or-in violation of the" Constitution and laws of the United
States of the State of Texas .
(b) This Ordinance shall be construed and deemed to ha~re been drafted by
the combined efforts of the CITY ,and .the TELEPHONE .COMPANY.
SECTION 18 -ACCEPTANCE OF AGREEMENT AND EFFECTIVE: DATE The City.
_ shall deliver' a .properly certified. copy of this Ordinance to the TELEPHONE
COMPANY within three (3) working days of its final passage. The
TELEPHONE 'COMPANY shall have thirty (30) days .from and after the final
passage of this Ordinance to file its written acceptance of this Ordinance `with
the City Secretary. If the TELEPHONE COMPANY does not file written
acceptance with the CITY within thirty days, this Ordinance is void. This
Ordinance shall become -effective beginning ,the first day of the, second .month.
following acceptance by the TELEPHONE COMPANY.
PASSED AND APPROVED this the 24th day of September, .1991.
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E. V. Ridlehuber, Mayor
ATTEST•
Karen McBeth, City Secretary
APPROVED AS TO CONTENT:
James Jeff rs , ity pager
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