HomeMy WebLinkAboutOrdinance 10680t
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AN ORDINANCE GRANTING A LIMITED
SATELLITE SYSTEMS CORPORATION,
MAINTAIN A CABLE COMMUNICATIONS
TEXAS, BETTING FORTH CONDITIONS
OF FRANCHISE, AND PROVIDING FOR
OF THE SYSTEM
/'
Adopted Ordin9n~ R~ ~ (~
FRANCHISE TO TELECOM
TO OWN, OPERATE AN
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 is necessary for the City of grant Telecom Satellite
Systems Corporation the right to use certain public streets, highways
and easements of the City for the installation of equipment,
appliances or appurtenances, above or below the surface of the same,
to~make the intended use thereof practicable; and
WHEREAS, the City Council has determined that it is in the
best interest of and consistent with the public necessity and
convenience of the City of Fart 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, (Grantee), 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, and all rights and
obligations pertaining thereto, shall be 10 years from the
effective date of the franchise 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
standard. The effective date of this franchise shall be after
passage by the City Council and publication as provided by law
unless Grantee fails to file a written contract with City as
provided herein.
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Section 2. DEFINITIONS
For the purpose of this franchise agreement, the following
terms, phrases, and their derivations, shall have the meanings
given below unless the context indicates otherwise. When not
inconsistent with the context, words used in the present tense
include the future tense, words in the plural number include the
singular number, and words in the singular include the plural
number. The word "shall" is always mandatory and not merely
directory
"City" means the City of Fort Worth, Texas.
"Grantee" 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 does
not use City rights-of-way
"Gross Revenues" shall mean all revenue derived directly or
indirectly by Grantee,. its affiliates, subsidiaries, parent, and
any person in which Grantee 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 not include any taxes on services by Grantee
herein imposed directly upon any subscriber or user by the state,
city or other governmental unit and collected by 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
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Section 3. COMPENSATION AND AUDITING
A. (1) The Grantee agrees to pay to City as annual
compensation for the use of the streets throughout the duration
of this franchise the amount of 5% of gross subscriber revenue
(2) Grantee's compensation payments to the City shall
be made quarterly upon the effective date of this franchise, and
thereafter, quarterly. Payment not received within forty-five
(45) days from the due date shall be assessed interest at 10% per
annum.
B The City shall have the right to review and audit the
Grantee's income records and the related books and records and to
recompute any 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 Grantee by
the City which notice shall include a copy of the audit report.
In the event that any franchise payment or recomputed
amount, cost or 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 franchise to renegotiate
any of the terms of compensation under this franchise. The City
shall serve on the Grantee 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 by Grantee.
F. The Grantee shall pay the cost of publication of the
franchise and any amendments thereto, as such publication is
required by law. Grantee 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 Grantee
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.
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Section 4. GENERAL FINANCIAL AND INSURANCE PROVISIONS
A Insurance. Grantee agrees, binds and obligates itself
and its successors to maintain public liability insurance
covering all public risks related to the proposed use and
occupancy of public property as located and described in Exhibit
"A". The amounts of such insurance shall be not less than the
following•
Property damage, per occurrence X100,000
Personal injury or death, per occurrence $500.,000
with the understanding of and agreement by Grantee that such
insurance amounts shall be revised upward at City's option and
that Grantee covenants and agrees to so revise such amounts
within thirty (30) days following notice to Grantee 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 Statement. The Grantee shall file annually
with the Office of Cable communications no later than one hundred
twenty (120) days after the end of the Grantee's fiscal year,
audited financial statements covering the operations of Grantee
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 Grantee'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 Grantee of responsibility and
liability for concept, design and computation in the preparation
of such plans and specifications.
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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
.. A ..
C Grantee, 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 future
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, Grantee shall pay to City an additional amount equal 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, Grantee 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 Grantee 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 any 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.
Grantee understands and agrees that the granting of any
franchise hereunder is not meant to convey to Grantee any right
to use or occupy property in which a third party may have any
interest, and Grantee agrees that it will obtain all necessary
permission before occupying such property
Grantee 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.
Grantee agrees to pay 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
Grantee 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 and/or 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
Grantee hereby assumes all liability and responsibility for such
claims or suits Grantee 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 Grantee, its officers, agents,
servants, employees, contractors, subcontractors, licensees,
invitees, or trespassers.
Section 11. INDEPENDENT CONTRACTOR.
Grantee 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 Grantee 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 Grantee, its officers, agents, servants,
employees, contractors and subcontractors, and nothing herein
shall be construed as creating a partnership or joint enterprise
between City and Grantee
Section 12 MAINTENANCE OF FACILITIES. A Grantee shall
provide and put in use all equipment and appliances necessary to
control and carry Grantee's signals so as to prevent injury to
the City's property or property belonging to any person, firm or
corporation within the City. Grantee. 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 Grantee shall not connect in a manner that requires any
customer to install conduits, or other facilities, under or over
a Gity street or other public right of way.
Section B CONSTRUCTION AND MAINTENANCE STANDARDS.
A. Authorization to Commence Construction
Within ninety (90) days of the granting of the franchise,
Grantee shall apply for all necessary governmental permits,
licenses, certificates and authorizations.
B Compliance with Construction and Technical Standards
Grantee 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 Grantee as part of
its application, which standards are hereby incorporated by
reference herein. In addition, Grantee 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
Grantee shall erect and maintain all parts of the System in
good condition throughout the entire franchise period.
D. Efficient Service and Repairs
Grantee shall render efficient service, make repairs
promptly and interrupt service only for good cause and 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. Grantee 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
Grantee's customers
F. Interference with Reception
Grantee shall not allow its cable or other operations to
interfere with television reception of persons not served by
Grantee.
G. Grantee 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 Grantee has failed to maintain these technical standards and
quality of service, and should it specifically enumerate
improvements to be made, Grantee 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. Grantee 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 Grantee's
pipes, conduits, vaults, structures or other facilities in the
City streets
B. Grantee shall maintain and inspect its conduits, ducts,
cables, vaults, structures or other facilities located in the
City streets. Upon reasonable notice to Grantee, the City may
inspect Grantee'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, Grantee's facilities In
removing or modifying Grantee's conduits, ducts, cables or other
facilities as provided in this franchise, Grantee shall also
remove all residue of hazardous substances related to such
facilities.
C. Grantee 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 Grantee's facilities in City streets.
Section 15. FRANCHISE NOT EXCLU5IVE This franchise is
not 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 Grantee hereunder.
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(2) The Grantee's construction schedule is delayed for over
18 months; or,
(3) The Grantee becomes insolvent or unable or unwilling to
pay its debts or is adjudged a bankrupt; or,
(4) The Grantee is found by a court of competent
jurisdiction to have practiced any fraud or deceit upon
the City; or,
P
(5) The Grantee fails to obtain and maintain any permit
required by any federal or state regulatory body.
B. Additional Remedies. In addition to any rights set
out elsewhere in this franchise, 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 X1,000, per
franchise violation; or,
(2) Suspend the Grantee°s franchise rights until the
Grantee 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 this
franchise in the event that any provision becomes invalid or
unenforceable and the City Council 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
Grantee thirty (30) days prior written notice of its intent to
exercise its rights under this section, stating the reasons for
such action. If Grantee cures the stated reason within the
thirty (30) day notice period, or if the Grantee 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 Grantee fails to cure the stated reason
within the thirty (30) day notice period, or if the Grantee 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.
A Upon the expiration of this franchise, the City shall
have the right, at its election, to:
10
Section 16. REGULATION. The power and right reasonably
to regulate the exercise of the privileges permitted by this
franchise in the public interest shall at all times be vested in
the City Council Grantee shall not be relieved of its
obligation to promptly comply with any provision of this
franchise by a failure of the City to promptly enforce compliance
with this franchise. Services furnished by Grantee under this
franchise 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 REQUIRED FOR ASSIGNMENT,
TRANSFER, MERGER, LEASE OR MORTGAGE.
A. Neither this franchise nor any property owned and
operated by Grantee 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 Grantee.
Grantee 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 System tangible assets for the purpose 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, Grantee 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 any assignment, transfer, merger, lease or mortgage, the City
may inquire into the qualifications of the prospective party.
The Grantee 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 appropriate.
Section 18. FORFEITURE AND OTHER REMEDIES.
A. Forfeiture. In addition to any other rights set out
elsewhere in this franchise, the City reserves the right to
declare a forfeiture of the franchise, and all of Grantee's
rights arising thereunder, in the event that=
(1) The Grantee violates any material provision of the
franchise; or,
9
(a) Renew or extend the franchise to Grantee, in accordance
with the City of Fort Worth and applicable law;
(b) Terminate the franchise 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 the Grantee's rights and responsibilities within the City
shall be controlled by the terms of the franchise.
Section 20. 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 in 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 for litigation between the City and the Grantee
arising under or regarding this franchise shall be in Tarrant
County, Texas.
D. Grantee 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 franchise 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 Grantee, City shall be entitled to recover
interest and reasonable attorney's fees.
Section 21. NOTICE. Any notice provided for under this
franchise shall be sufficient if in writing and delivered
personally to the following addressee or deposited in the United
States Mail, postage prepaid, certified mail, return receipt
requested, addressed as follows, or to such other address as the
receiving party hereafter shall specify in writing=
If to the City= Office of Cable Communications
City of Fort Worth
1000 7hrockmorton
Fort Worth, Texas 76102
11
If to the Grantee: TeleCam Satellite Systems Corporation
4425 W Airport Freeway Suite 540
Irving, Texas 75062
Section 22. WRITTEN ACCEPTANCE. Within thirty days after
this ordinance becomes effective, Grantee shall file in the
Office of the City Secretary of the City of Fort Worth a written
acceptance, executed by the Grantee, of this ordinance meeting
the approval of the City Attorney.. A failure on the part of
Grantee 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.
APF'ROU AS TO FORM AND LEGALITY.
1
Effective:
----------- --------------------
ity Attor
Date : _ /~ ~:.3 `~~C~
Adopted __ ~ ` ~~~ ,g~---_---
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DATE REFERENCE
NUMBER suB~ECT LIMITED FRANCHISE AGREEMENT PAGE
9-25-90 **C-12516 WITH TELECOM SYSTEMS CORPORATION FOR lof 1__
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 agreement with
Telecom Satellite Systems Corporation to provide cable television
service to the multi-family dwellings specified in the attachment.
DISCUSSION:
On July 15, 1990 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 of the
City's right of way. The request falls under 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.
Quarterly franchise fee payments of 5% will be deposited in the General Fund
GG01, Account No. 421362, Center 0210000.
DAI:b
APPROVED BY
CITY COUNCIL
SEP 25 1990
Kam. 9~kw~dL.~
City Seoretnzy of :he
City of £ot CVor h. exar
SUBMITTED FOR IMt
CITY MANAGER'S
OFFICE BY Ruth Ann McKinney 6125
DISPOSITION BY COUNCIL.
^ APPROVED
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