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WHEREAS, the TELEPHONE COMPANY has operated its
telecommunications business in the CITY under successive ordinances
of the CITY, the last of which was the Ordinance adopted
September 6, 1961, which provided compensation to the CITY for the
superintendence 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, it is recognized by the parties that changes in
the telecommunications industry, changes in technology, changes in
state and federal law, and changes in the accounting practices .
mandated by the Uniform System of Accounts promulgated by the
'�- Federal Communications Commission ("FCC") , along with regulatory
requirements of the Texas Public Utility Commission ("PUC") , have
caused the traditional method of determining the amount of
compensation to municipalities to, become administratively
impractical for telecommunications utilities. In order to resolve
these issues in a manner satisfactory to both the CITY and the
TELEPHONE COMPANY, 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
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WHEREAS, it is to the mutual advantage of both the CITY
and the TELEPHONE COMPANY that an agreement should be entered into
between the 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;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF
ALDERMEN OF THE CITY OF PROSPER, TEXAS, THAT:
SECTION 1 - PURPOSE
Pursuant to the laws of the State of Texas 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 constructed, 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
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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 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 as a cable operator in the CITY under this Ordinance, but
must first obtain a franchise from the CITY for that purpose, under
such terms and conditions as may be required by law.
SECTION 3 - DEFINITIONS
Whenever used in this Ordinance, the following words and terms
shall have the definitions and meanings provided in this Section:
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(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 or across the public RIGHTS-OF-WAY
for any purpose whatsoever.
(c) CITY: The City of Prosper, Texas.
(d). RIGHTS-OF-WAY: all present and future streets, avenues,
highways, alleys, bridges and public property within the city
limits of the CITY.
(e) DIRECTION OF THE CITY: all ordinances, laws, rules, and
regulations 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,
wires or other physical devices used to transmit and/or
receive communication signals, whether analog, digital or of
other characteristics, and whether for voice, data or other
purposes.
(g) NON-EXCLUSIVE: no rights 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
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entity as the CITY, in its sole discretion, 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 five (5) years from
the effective date hereof; provided that at the expiration of the
initial period, such term may be extended by mutual written
agreement of 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 water 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, stubs, 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.
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SECTION 6 - ATTACHMENTS TO POLES 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 other
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 COMPANY in any
TELEPHONE COMPANY duct, then a further separate, noncontingent
agreement shall be prerequisite to such attachment(s) or such 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
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maintenance of its telecommunications system shall 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 reasonably necessary
to execute all work.
SECTION 8 - TEMPORARY REARRANGEMENT OF AERIAL WIRES
Upon request, the TELEPHONE COMPANY shall remove or raise or lower
its aerial wires, fiber or cables temporarily to permit the moving
of houses or other bulky structures. The expense of such temporary
rearrangements shall be paid by the party or 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.
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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 overhanging 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 or cables of the TELEPHONE COMPANY, and when so
directed by the CITY, said trimming shall be done under the
supervision and direction of the CITY or of any CITY 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) and damages to
persons or property arising directly or indirectly out of the
construction, maintenance or operation of the TELEPHONE COMPANY'S
FACILITIES located within the public RIGHTS-OF-WAY found to be
caused solely by the 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.
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SECTION 11 — ADMINISTRATION OF ORDINANCE
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(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 by providing information which is prepared,
maintained and available in the ordinary course of business.
(b) Copies of specifically identified 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 construction 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 in 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
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easement or street or alley rental or franchise tax or other
character of charge for use and occupancy of the RIGHTS-OF-WAY
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within the CITY, except the usual general ad valorem taxes, special
assessments in accordance with State law or sales taxes now or
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 $4,500.00. In
no event shall such Charge be less than the above amount for each
year this Ordinance is in effect, except as provided in the case of
disannexation as set forth in paragraph 12 (e) , or as provided in
Section 16 herein.
The TELEPHONE COMPANY will, according to tariff, bill such Charge
to the customers billed the customer service charges included
within the term "Gross Receipts, " as defined herein. Gross
Receipts, for 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; and (4) such charges are subject to an interstate end
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user common line ("EUCL") charge as imposed by the Federal
Communications Commission ("FCC") .
For the second and subsequent years while this Ordinance remains in
effect, 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 to
account for any undercollection or overcollection of the Charge due
the CITY.
(b) The Charge for each year shall be paid in four (4) equal
payments.. The dates shall be February 28, May 31, August 31 and
November 30, with the first payment under this Ordinance due on the
last day of the fifth month following the effective date hereof.
In the event of any over or undercollection from customers at the
expiration of this Ordinance, the TELEPHONE. COMPANY may make a pro
rata one-time credit or charge to the customer billing for affected
customers who are billed for a service included within Gross
Receipts, as defined in paragraph 12 (a) . This will be accomplished
within 150 days following the date of expiration of this Ordinance.
If however, it is impractical to credit any overcollection to
customers, then such overcollection shall be paid to the CITY.
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(c) The Growth Factor shall be calculated by dividing the TELEPHONE
COMPANY'S revenues within the corporate limits of the CITY subject
to state sales taxes ("Sales Tax Revenues") for the twelve month
period ending three (3) months prior to the next anniversary date
of this Ordinance by the Sales Tax Revenues for the twelve month
period ending three (3) months prior to either the initial
effective date or the preceding anniversary date of this Ordinance
as applicable. The Growth Factor calculated by the method set
forth in the preceding sentence, if greater than one, shall be
multiplied by the current year's Charge to determine the dollar
amount of the Charge for the next year. If the Growth Factor
calculated above is one or less, the Charge for the next year shall
be equal to the current year's Charge. 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 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. The Growth Factor shall
be recomputed to reflect any final, nonappealable adjustments made ,
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pursuant to an audit finding by the Texas Comptroller of an
inaccuracy in the TELEPHONE COMPANY'S reports of revenues subject
to state sales taxes. The Charge shall be recalculated using the
Growth Factor recomputed as specified in the preceding sentence,
and the recalculated Charge shall be used for all future
calculations required by this Ordinance. Any overpayment or
underpayment resulting from such recalculation shall be subtracted
from or added to the first installment due the following year. If
any overpayment or underpayment shall be due during the final year
of this Ordinance, then payment shallbe made as follows. In the
case of overpayment by the TELEPHONE COMPANY, the CITY shall pay
such overpayment to the TELEPHONE COMPANY within 150 days following
the expiration of this Ordinance and, in the case of underpayment
by the TELEPHONE COMPANY, the TELEPHONE COMPANY shall pay such
underpayment to the CITY within 150 days following the expiration
of this ;Ordinance.
(d) Such payments shall not relieve the TELEPHONE COMPANY 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 aforesaid, then the CITY
- agrees that it will apply so much of such payments as may be
necessary to the satisfaction of the TELEPHONE COMPANY'S
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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.
(e) In the event that either (1) territory within the boundaries of
the CITY shall be disannexed 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 effecting 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 for
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 or 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
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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 the 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 the Ordinance adopted September 6,
1961, and renewed or extended from time to time thereafter, and its
predecessor ordinances, if any, (hereinafter referred to
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collectively as "1961 Ordinance") . This full and complete release
of claims for any matters under the 1961 Ordinance 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 the 1961
Ordinance. Southwestern Bell Telephone Company, its 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 or unknown, against the CITY, its officers or its employees,
arising out of or connected with any matters under the 1961
Ordinance.
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 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 to be and is not an admission
of liability or vulnerability by either party to the other with
respect to either the claims or the defenses asserted against the
other.
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SECTION 15 - REPEAL OF CONFLICTING ORDINANCES AND AGREEMENTS
The Ordinance adopted September 6, 1961, 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 this 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 anything 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 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, unenforceable, 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
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and, unless explicitly prohibited, the new ordinance shall provide
the CITY with a level of compensation comparable to that set forth
in this Ordinance provided that such compensation is recoverable by
the TELEPHONE COMPANY in a mutually agreed manner permitted by law
for the unexpired portion of the term of this Ordinance.
SECTION 17 - GOVERNING LAW
(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.
(b) This Ordinance shall be construed and deemed to have 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
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and after the final passage of this Ordinance to file its written
acceptance of this Ordinance with the CITY Secretary. This
Ordinance shall become effective beginning the first day of the
quarter not less than thirty (30) days after its final passage by
the CITY. •
Passed and approved following the 2nd reading hereof this
11th day of AUGUST , A.D. , 1992.
F- •
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aY
. Ci of Prosper, Texas
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ATTEST:
btl- S
City Sec t
I, SHIRLEY JACKSON , City Secretary of the
City of Prosper, Texas, do hereby certify that the foregoing is a
true and correct copy of Ordinance Number 92-02 , finally passed and
approved by the Board of Aldermen of Prosper, Texas, following the
2nd reading thereof at a regular meeting held on the 11th day
of. AUGUST , 1992.
S-78-dj,z a
City Secr
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ACCEPTANCE
WHEREAS, the City. o.f PROSPER, Texas, did on the 11th day of • -
August, 1992, enact Ordinance Number 92-02 entitled:
AN ORDINANCE"_WHEREBY THE CITY- OF PROSPER, TEXAS,
AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT,
FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS
BUSINESS, THE TELEPHONE COMPANY SHALL MAINTAIN AND
CONSTRUCT ITS POLES, WIRES, ANCHORS, F.IBER,' 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 PERFORMANCE OF CERTAIN
CONSTRUCTION WORK ON PUBLIC RIGHTS-OF-WAY FOR THE
TELEPHONES COMPANY'S TELECOMMUNICATIONS . BUSINESS;
PROVIDING AN INDEMNITY CLAUSE; SPECIFYING GOVERNING
LAWS; PROVIDING FOR A RELEASE -OF ALL 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 EFFECTIVE DATE.
and WHEREAS, said Ordinance was on the llth day -of August,
1992, duly approved 'by the' Mayor of said City and, the
Seal of said City was thereto affixed and attested by the City
Secretary:
NOW, THEREFORE, in, compliance . with . the terms of said
Ordinance as enacted, approved and attested, the Southwestern
- Bell Telephone Company' hereby, accepts ' said Ordinance, and
files this -its written acceptance with 'the City Secretary of
PROSPER, Texas: ,Pursuant to the terms of said Ordinance and
this Acceptance, said Ordinance shall become effective on
October 01, 1992 .
Dated this fir day of f , 19 91 .. '
SOUTHWESTERN BELL
TELEPHONE COMPANY
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Press en exas Division A) L
rTh Acceptance filed in the office f the City Secretary of
PROSPER, Texas this /. T, day o_f , 19 C: Yif7c;:e1
City Segktary ,