HomeMy WebLinkAboutOrdinance 10972Ad.opied Ordinance ~o~Jd~~
AN ORDINANCE GRANTING A LIMITE
SATELLITE SYSTEMS CORPORATION,
MAINTAIN A CABLE C1'~MMUNICATIONS
TEXAS, SETTING FORTH CONDITIONS
OF FRANCHISE, AND PROVIDING FOR
OF THE SYSTEM
D FRANCHISE TO TELECOM
TO OWN, OPERATE AND
SYSTEM IN FORT WORTH,
ACCOMPANYING THE GRANT
THE REGULATION AND USE
WHEREAS, Telecom Satellite Systems Corporation has applied
to the City of Fort Worth for a limited franchise to operate a
cable television system within the City of Fort Worth, and
WHEREAS, it
Satellite Systems
streets, highways
of equipment, app
surface of the
practicable, and
is necessary for the City of grant Telecom
Corporation the right to use certain public
and easements of the City for the installation
liances or appurtenances, above or below the
same, to make the intended use thereof
WHEREAS, the City Council has determined that it is in the
best interest of and consistent with public necessity and
convenience of the City of Fort Worth to grant a franchise to
Telecom Satellite Systems Corporation to operate a cable
communication System within the confines of the City of Fort
Worth and on the terms and conditions hereinafter set forth, NOW
THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT
WORTH
Section 1. NATURE AND TERM OF GRANT
A The City of Fort worth (City) does hereby grant to
Telecom Satellite Systems Corporation, ("Telecom"), a franchise
to construct, operate and maintain a cable television System
("System"), with all necessary facilities, in and under the
surface of the following streets and public places in the City,
as shown in red on the map attached hereto and incorporated by
reference as Exhibit A
B The term of this franchise, anal all rights and
obligations pertaining thereto, shall be 10 years from the
effective date unless terminated sooner as provided herein. This
franchise shall be subject to a review by City at the end of 5
years, for compliance with franchise terms related to customer
service and compliance with technical standards. The effective
date of this franchise shall be after passage by the City Council
and publication as provided by law unless Telecom fails to
execute a contract with City as provided herein
Section 2. DEFINITIONS
For the purpose of this contract, the following terms,
phrases, and their derivations, shall have the meanings given
below unless the context indicates otherwise When not
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inconsistent with the context,
include the future tense, words
singular number, and words in
number The word "shall°' is
directory.
words used i.n the present tense
in the plural number include the
the singular include the plural
always mandatory and not merely
01City" means the City of Fort Worth, Texas
"Telecom" means Telecom Satellite Systems Corporation
"Cable Communication System" or "System," shall mean a
System of antennas, cables, wires, lines, towers, wave guides, or
other conductors, converters, equipment or facilities, designed
and constructed for the purpose of producing, receiving,
transmitting, amplifying and distributing, audio video and other
forms of electronic or electrical signals located in the City
Said definition shall not include any such facility that serves
or will serve only subscribers in one or more multiple unit
dwellings under common ownership, control or management, and daes
not use City rights-of-way
"Gross Revenues" shall mean all revenue derived directly or
indirectly by Telecom, its affiliates, subsidiaries, parent, and
any person in which Tel.eCom has a financial interest, from or in
connection with the operation of a cable communication System
pursuant to this ordinance, provided, however, all revenues,
shall include but not be limited to, basic subscriber service,
monthly fees, pay cable fees, installation and reconnection fees,
leased channel fees, converter rentals, and advertising revenues,
and that this shall nat include any taxes on services by Telecom
herein imposed directly upon any subscriber or user by the state,
city or other governmental unit and collected b,y the Company on
behalf of said governmental unit
"Street" is a way or place of whatever nature, publicly
maintained and open to the use of the public for purposes of
vehicular travel. Street shall include road, highway, bridge,
tunnel or alley
"Installation" shall mean the connection of the System from
feeder cable to subscribers' terminals
"Easements" shall be limited to those rights-of-way owned by
the City, the terms conditions or limitations upon which are not
inconsistent with the erection, construction or maintenance of a
cable communication System, its structures or equipment
Section 3. COMPENSATION AND AIIDITING
A (1) Telecom agrees to pay to City as annual compensation
for the use of the streets throughout the duration of this
contract the amount of 50 of gross subscriber revenue
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(2) Telecom's compensation payments to the City shall be
made quarterly upon the effective date of this contract, and
thereafter, quarterly Payment not received within forty-five
(45) days from the due date shall be assessed interest at l0a per
annum
B The City shall have the right to review and audit
Telecom's income records and the related books and records and to
recompute an,y amounts determined to be payable under this
ordinance, provided, however, that such audit shall take place
within thirty-six (36) months following the close of the fiscal
year covered by such statement(s) Any additional amount due to
the City as a result of the City's review or audit shall be paid
within thirty (30) days following written notice to Telecom by
the City which notice shall include a copy of the audit report.
In the event that any franchise fee payment or recomputed
amount, cost ar penalty, is not made on or before the applicable
dates heretofore specified, interest shall be charged daily from
such date at the annual rate of ten percent (10~)
C No acceptance of any payment shall be construed as an
accord that the amount paid is, in fact, the correct amount, nor
shall any acceptance of payments be construed as a release of any
claim the City may have for further or additional sums payable
D The City shall have the right at the end of a 5 year
period from the effective date of this contract to renegotiate
any of the terms of compensation under this contract The City
shall serve on the Telecom written notice of its intention to
exercise this right not less than sixty (60) days prior to the
end of the 5 year period
E Except as otherwise required by law, no portion of this
franchise fee shall be noted separately on any bill to any
customer or. user of services or commodities furnished b,y Telecom
F Telecom shall pay the cost of publication of the
franchise and any amendments thereto, as such publication is
required by Iaw Telecom shall also pay the City for such
reasonable pre-franchising costs as the City incurs in entering
into this franchise agreement with the City
G Payment of this franchise fee shall not exempt Telecom
from the payment of any other license fees, taxes or charges that
may be imposed by any federal, state or local statute, law or
regulation
Section 4. GENERAL FINANCIAL AND INSURANCE PROVISIONS
A Insurance Telecom agrees, binds and obligates itself
and its successors to maintain public liability insurance
covering all public risks related to the proposed use and
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occupancy of public property as located and described i.n Exhibit
"A" The amounts of such insurance shall be not less than the
following.
Property damage, per occurrence $100,000
Personal injury or death, per occurrence $500,000
with the understanding of and agreement by Telecom that such
insurance amounts shall be revised upward at City's option and
that Telecom covenants and agrees to so revise such amounts
within thirty (30) days following notice to Telecom of such
requirement Such insurance policy shall provide that it cannot
be cancelled or amended without at lease thirty (30) days prior
written notice to City
B Financial~St_atement Telecom shall file annually with
the Office of Cable Communications no later than one hundred
twenty (120) days after the end of the its fiscal year, audited
financial statements covering the operations of Telecom within
the confines of the City of Fort Worth These statements shall
include a fiscal year-end balance sheet, an income statement of
retained earnings for the ,year, a fixed asset statement showing,
for each account or category, the original cost and accumulated
depreciation balances and activity, and a depreciation statement
showing the detailed calculations of depreciation expense for
the year. These statements shall have been audited by an
independent certified public accountant, whose report shall
accompany such statements, and there shall be submitted along
with them such other reasonable information as the City shall
request with respect to Telecom's properties and expenses related
to its System operations within the City
Section 5. CONSTRUCTION AND RELOCATION
A All construction, maintenance and operation in
connection with such encroachment, use, and occupancy of streets
and easements within the City shall be performed in strict
compliance with the Charter, Ordinances and Codes of City and in
accordance with the directions of the Director of Transportation
and Public Works of City, or his duly authorized representative
All plans and specifications therefor shall be subject to the
prior written approval of the Director of Transportation and
Public Works, or his duly authorized representative, but such
approval shall not relieve Telecom of responsibility and
liability for concept, design and computation in the preparation
of such plans and specifications
B Upon completion of construction and thereafter, there
shall be no encroachments in, under, on or above the surface area
on the streets and easements involved, except as shown on Exhibit
nAn
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C. Telecom, at no expense to City, shall make proper
provision for the relocation and/or installation of any existing
or future utilities affected by such encroachment, use and
occupancy, including the securing of approval and consent from
the utility companies and the appropriate agencies of the State
and its political subdivisions In the event any installation,
reinstallation, relocation or repair of any existing or fut~zre
utility or improvements owned or constructed by or on behalf of
the public or at public expense is made more costly by virtue of
the construction, maintenance or existence of such encroachment
and use, TeleCam shall pay to City an additional amount egual to
such additional cost as determined by the Director of
Transportation and Public Works of City, or his duly authorized
representative
Section 6. RESTORATION OF STREETS
Upon the termination of this agreement for any reason
whatsoever, Telecom shall, at the option of City and at no
expense to City, remove at its own expense all designated
portions of the System from streets, easements and public
property and restore the public streets and adjacent supporting
structures to a condition acceptable to the Director of
Transportation and Public Works or his duly authorized
representative, all in accordance with then existing City
specifications
Section 7. RESERVATION OF CITY STREET RIGHTS
City may enter and utilize the referenced areas at any time
for the purpose of installing or maintaining improvements
necessary for the health, safety and welfare of the public or for
any other public purpose In this regard, City shall bear no
responsibility or liability for damage or disruption of
improvements installed by Telecom or its successors, but City
make reasonable efforts to minimize such damage
Section 8. USE OF PUBLIC PROPERTY FOR PUBLIC PURPOSES
It is further understood and agreed between the parties
hereto that the City streets and sidewalks, including the
portions of such streets and sidewalks to be used and encroached
upon as described herein are held by City as trustee for the
public, that City exercises such powers over the streets as have
been delegated to it by the Constitution of the State of Texas or
by the Legislature, and that City cannot contract away its duty
and its legislative power to control the streets for the use and
benefit of the public It is accordingly agreed that if the
governing body of City, to with, its City Council, should at any
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time during the term hereof determine in its sole discretion to
use or cause or permit the said portions of the streets to be
used for an,y other public purpose, including but not being
limited to underground, surface or overhead communication,
drainage, sanitary sewerage, transmission of natural gas or
electricity, or any other public purpose whether presently
contemplated or not, then this agreement shall be automatically
cancelled and terminated
Section 9, THIRD PARTY INTERESTS
Telecom understands and agrees that the granting of any
franchise hereunder is not meant to convey to Telecom any right
to use or occupy property in which a third party may have any
interest, and Telecom agrees that it will obtain all necessary
permission before occupying such property
Telecom agrees to comply fully with all applicable federal,
state and local laws, statutes, ordinances, codes or regulations
in connection with the construction, operation and maintenance of
its System
Telecom agrees to pa,y promptly when due all fees, taxes or
rentals provided for by this agreement or by any federal, state
or local statute, law or regulation.
Section 10. INDEMNIFICATION
Telecom covenants and agrees to indemnify, and does hereby
indemnify, hold harmless and defend City, its officers, agents
servants and employees, from and against any and all claims or
suits for property damage or loss andJor personal injury,
including death, to any and all persons, or whatsoever kind of
character, whether real or asserted, arising out of or in
connection with, directly or indirectly, the construction,
maintenance, occupancy, use, existence or location of said System
granted hereunder, whether or not caused, in whole or in part, by
alleged negligence of officers, agents, servants, employees,
contractors, subcontractors, licensees or invitees of City, and
Telecom hereby assumes all liability and responsibility for such
claims or suits Telecom shall likewise assume all. liability and
responsibility and shall indemnify City for any and all injury or
damage to City property, arising out of or in connection with any
and all acts or omissions of Telecom, its officers, agents,
servants, employees, contractors, subcan.tractors, licensees,
invitees, or trespassers
Section 11. INDEPENDENT CONTRACTOR
Telecom covenants and agrees that it shall operate hereunder
as an independent contractor as to all rights and privileges
granted hereunder and not as an officer, agent, servant or
employee of City; that Telecom shall have exclusive control of
and the exclusive right to control the details of its operations,
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and all persons performing same, and. shall be solely responsible
for the acts and omissions of its officers, agents, servants,
employees, contractors, subcontractors, licensees and invitees,
that the doctrine of respondeat superior shall not apply as
between City and Telecom, its officers, agents, servants,
employees, contractors and subcontractors, and nothing herein
shall be construed as creating a partnership or joint enterprise
between City and Telecom
Section 12. MAINTENANCE OF FACILITIES
Telecom shall provide and put in use all equipment and
appliances necessary to control and carry Telecom's signals so as
to prevent injury to the City's property or property belonging to
any person, firm or corporation within the City Telecom, at its
own expense, shall repair, renew, change and improve said
facilities and appliances from time to time as may be necessary
to accomplish this purpose Telecom shall not connect in a
manner that requires any customer to install conduits, or other
facilities, under or over a City street or other public right of
way
Section 13. CONSTRUCTION AND MAINTENANCE STANDARDS
A Authorization to Commence Construction
Within ninety (90) days of the granting of the franchise,
Telecom shall apply for all. necessary governmental permits,
licenses, certificates and authorizations
S. Compliance with Construction and Technical Standards
Telecom shall construct, install, operate and maintain its
System in a manner consistent with all laws, ordinances,
construction standards, governmental requirements, FCC technical
standards, and detailed standards submitted by Telecom as part of
its application, which standards are hereby incorporated by
reference herein In addition, Telecom shall provide the City,
upon request, with a written report of the results of Company's
annual proof of performance tests conducted pursuant to FCC
standards and requirements.
C. Maintenance of System
Telecom shall erect and maintain all parts of the System in
good condition throughout the entire franchise period
D. Efficient Service and Repairs
Telecom shall render efficient service, make repairs
promptly and interrupt service only for good cause anal for the
shortest time possible Such interruptions, insofar as possible,
shall be preceded by notice and shall occur during period of
minimum System use
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E Telecom shall designate an individual to be a liaison
with the City, for purposes of resolving questions and customer
service matters which may arise during the term of the franchise
Such person will cooperate with City in resolution of customer
service inquiries which may be received by City from Telecom`s
customers
F. Interference with Reception
Telecom shall not allow its cable or other operations to
interfere with television reception of persons not served by
Telecom
G Telecom shall continue, through the term of the
franchise, to maintain the technical standards and quality of
service set forth in this ordinance. Should the City find that
the Telecom has failed to maintain these technical standards and
quality of service, and should it specifically enumerate
improvements to be made, Telecom shall make such improvements
Failure to make such improvements with three (3) months after
written notice will constitute a breach of this ordinance
Section 14. HAZARDOUS SUBSTANCES
A Telecom shall comply with all applicable state and
federal laws, statutes, regulations and orders concerning
hazardous substances as defined by regulations of the United
States Environmental Protection Agency, relating to Telecom's
pipes, conduits, vaults, structures or other facilities in the
City streets
B Telecom shall maintain and inspect its conduits, ducts,
cables, vaults, structures or other facilities located in the
City streets Upon reasonable notice to Telecom, the City may
inspect Telecom's conduits, ducts, cables, or other facilities in
the City streets to determine if any release of hazardous
substances has occurred, or if a release of hazardous substances
may occur, from, or related to, Telecom's facilities. In
removing or modifying Telecom's conduits, ducts, cables or other
facilities as provided in this franchise, Telecom shall also
remove all residue of hazardous substances related to such
facilities
C Telecom agrees to forever indemnify the City against any
claims, costs, and expenses, of any kind, whether direct or
indirect, incurred by the City arising out of hazardous
substances associated with Telecom's facilities in City streets
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Section 15. FRANCHISE NOT EXCLUSIVE
Telecom's franchise is n~bt exclusive The City expressly
reserves the right to grant rights or franchises to other persons
or corporations, as well as the right in its own name as a
municipality, to use its streets for similar or different
purposes allowed Telecom hereunder
Section 16. REGOLATION
The power and right reasonably to regulate the exercise of
the privileges permitted by this contract in the public interest
shall at all times be vested in the City Council Telecom shall
not be relieved of its obligation to promptly comply with any
provision of this contract by a failure of the City to promptly
enforce compliance with this contract Services furnished by
Telecom under this contract shall be rendered using the best
practicable commercial methods and practice, insuring the least
danger of life and property compatible with the best obtainable
service.
Section 17. CITY'S CONSENT REQIIIRED ASSIGNMENT,
TRANSFER, MERGER, LEASE OR MORTGAGE.
A Neither this franchise nor an.y property owned and
operated by Telecom by authority hereof shall be sold, leased,
mortgaged, assigned or otherwise transferred without the prior
consent of the City, except to entities that control, are
controlled by, or are under common control with the Telecom
Telecom shall notify the City of any transfers to such entities
within ten (10) days of such transfers. The City's granting of
consent in one instance shall not render unnecessary any
subsequent consent in any other instance Nothing contained
herein shall be deemed to prohibit the mortgage, pledge, or
assignment of the System tangible assets for the purpase of
financing the acquisition of equipment for or the construction
and operation of the System without the City's consent, but any
such mortgage, pledge or assignment shall be subject to the
City's other rights contained in this franchise.
B Within ten (10) days after execution and delivery of any
instrument so consented to by the City, Telecom shall file with
the City an executed counterpart or certified copy thereof No
sale, lease, mortgage, assignment, transfer or merger may occur
until the successor, assignee or lessee has executed an agreement
to comply with all terms and conditions of this franchise.
For the purpose of determining whether the City will consent
to an,y assignment, transfer, merger, lease ar mortgage, the City
may inquire into the qualifications of the prospective party
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Telecom shall assist the City in any such inquiry The City may
condition any assignment, transfer, merger, lease or mortgage
upon such conditions as it deems app r.opriate
Section 18. FORFEITURE AND OTHER REMEDIES
A Forfeiture In addition to any other rights set out
elsewhere in this contract, the City reserves the right to
declare a forfeiture of the franchise, and all of Telecom's
rights arising thereunder, in the event that.
(1) Telecom violates any material provision of the
franchise or this contract,
(2) Telecom's construction schedule i.s delayed for over 18
months, or,
(3) Telecom becomes insolvent or unable or unwilling to pay
its debts or is adjudged a bankrupt; or,
(4) Telecom is found by a court of competent jurisdiction
to have practiced any fraud or deceit upon the City,
or,
(5) Telecom fails to obtain and maintain any permit
required by any federal or state regulatory body
S. Additional Remedies In addition to any rights set out
elsewhere in this contract, as well as its rights under the City
Code, the City reserves the right at its sole option to apply any
of the following, alone or in combination.
(1) Impose a financial penalty of up to $1,000, per
contract violation; or,
(2) Suspend the Telecom's franchise rights until Telecom
corrects or otherwise remedies the violation
In determining which remedy or remedies are appropriate, the
City shall consider the nature of the violation, the person or
persons burdened by the violation, the nature of the remedy
required in order to prevent further such violations, and any
other matters the City deems appropriate
C Revocation The City Council may revoke the franchise
and cancel this contract in the event that any provision becomes
invalid or unenforceable and the City Counci]. expressly finds
that such provision constituted a consideration material to the
grant of the franchise
D Notice and Opportunity to Cure The City shall give
Telecom thirty {30) days prior written. notice of its intent to
exercise its rights under this section, stating the reasons for
such action If Telecom cures the stated reason within the
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thirty (30) day notice period, or if the Telecom initiates
efforts satisfactory to the City to remedy the stated reason and
the efforts continue in good faith, the City shall not exercise
its remedy rights. If Telecom fails to cure the stated reason
within the thirty (30) day notice period, or if the Telecom does
not undertake efforts satisfactory to the City to remedy the
stated reason, then the City Council. may impose any or all of the
remedies available under this section.
Section 19. EXPIRATION; TERMINATION
A Upon the expiration of the franchise and this contract,
the City shall have the right, at its election, to:
(a) Renew or extend the contract to Telecom, in accordance
with the City of Fort Worth and applicable law,
(b) Terminate the contract without further action, or,
(c) Take such further action as the City deems appropriate
Until such time as the City exercises its rights under this
section Telecom's rights and responsibilities within the City
shall be controlled by the terms of the contract.
Section 2®. CHARTER AND GENERAL ORDINANCES TO APPLY;
MISCELLANEOUS PROVISIONS
A. This franchise is hereby made subject to the Charter of
the City of Fort Worth and general ordinance provisions passed
pursuant thereto, now i.n effect or hereafter made effective
B If any portion of this ordinance is for any reason held
invalid or unconstitutional by any court of competent
jurisdiction, such portion shall be deemed a separate, distinct
and independent provision and such holding shall not affect the
validity of the remaining portions thereof
C Venue far litigation between the City and Telecom
arising under or regarding this contract shall be in Tarrant
County, Texas
D Telecom agrees to deposit with City when this franchise
is granted a sufficient sum of money to be used to pay necessary
fees to record this contract in its entirety in. the deed records
of Tarrant County, Texas After being so recorded, the original
hereof shall be returned to the City Secretary of the City of
Fort Worth, Texas
E In any action brought by City for the enforcement of
the obligations of Telecom, City shall be entitled to recover
interest and reasonable attorney's fees
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Section 21. NOTICE
Any notice provided for under this
sufficient if in writing and delivered
following addressee or deposited in the
postage prepaid, certified mail, return
addressed as follows, or to such other addr
party hereafter shall specify in writing
ordinance shall be
personally to the
United States Mail,
receipt requested,
ess as the receiving
If to the City' Office of Cable Communications
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
If to the Telecom' Telecom Satellite Systems Corporation
4425 W Airport Freeway Suite 540
Irving, -Texas 75062
Section 22. WRITTEN ACCEPTANCE. Within thirty days after
this ordinance becomes effective, Telecom shall file in the
Office of the City Secretary of the City of Fort Worth a written
acceptance, executed by the Telecom, of this ordinance meeting
the approval of the City Attorney A failure on the part of
Telecom to file such written acceptance within such time shall be
deemed an abandonment and rejection of the rights and privileges
conferred hereby and this ordinance shall thereupon be null and
void Such acceptance shall be unqualified and shall be
construed to be an acceptance of all the terms, conditions and
restrictions contained in this ordinance.
Section 23. OTHER AUTHORITY SUPERSEDED. Upon effectiveness
of this franchise, any and all authority to operate previously
granted to Grantee by the City of Fort Worth, is superseded by
this franchise
APPROVED AS TO FORM AND LEGALITY
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DA TE REFERENCE NUMBER ** LOG NAME PAGE
12/10/91 C-13173 02FAMILY 1 of 1
SUBJECT LIMITED FRANCHISE AGREEMENT N0. 3 WITH TELECOM SATELLITE SYSTEMS CORPORATION
FOR MULTI-FAMILY DWELLINGS
RECOMMENDATION:
It~is recommended that the City Council:
1. Adopt the attached ordinance, .granting a limited cable television franchise to
Telecom Satellite Systems Corporation, and
2. Authorize the City Manager to execute a franchise ag reement with Telecom Satellite
Systems Corporation to provide cable television service to the multi-family
dwellings specified in the attachment.
DISCUSSION:
On November 20, 1991 an application was received by Telecom Satellite Systems
Corporation to provide cable television service to two apartment complexes in Fort
Worth. Construction of the system will require the use o f the City's limited franchise
policy. The franchisee will pay a franchise fee of 5% of its gross subscriber revenue.
The franchise agreement will incorporate the terms and conditions of the ordinance.
FISCAL INFORMATION/CERTIFICATION:
The City Manager's Office, Communications Division, will be responsible for collection
and deposit of these quarterly franchise fee payments.
DAi:t
Subm~tte for C ty Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by to H~'t'KlJ"J~1~ ~"
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Ramon Guajardo 6143
Orig>lnating Department Hea Adopted Ordinar-ce ~ o, g
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Sue Winter 6119 from
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For Additional Information ~lz
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Contact
Sue Winter 6119 ~~t~r .~,aaretary of the
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