90-023 ORD GRANTING PEOPLES COMMUNICATION PERMISSION TO USE/OCCUPY CITY STREETS ETC
ORDINANCE N0. 90-023
AN ORDINANCE GRANTING TO PEOPLES COMMUNICATION, INC., ITS
SUCCESSORS AND ASSIGNS, PERMISSION TO USE AND OCCUPY THE CITY
STREETS, ALLEYS, HIGHWAYS, PUBLIC THOROUGHFARES, AND WAYS OF THE
CITY FOR THE PURPOSE OF MAINTAINING AND OPERATING ITS FACILITIES
NEEDED AND NECESSARY TO PROVIDE SERVICE TO ITS CUSTOMERS IN
PARIS, TEXAS, UNDER SPECIFIED CONDITIONS; PROVIDING FOR THE
PAYMENT OF FEES OR CHARGES FOR THE USE OF THE STkEETS, ALLEYS,
HIGHWAYS, PUBLIC THOROUGHFARES, PUBLIC UTILITY EASEMENTS AND
PUBLIC WAYS AND THE RIGHT OF THE CITY TO USE CERTAIN FACILITIES
OF THE COMMUNICA'TIUN COMPANY; PRESCRIBING THE TERN'i AND EFFECTIVE
DATE OF SAID CONSENT; PROVIDING THAT THE ORDINANCE BE CUMULATIVE;
PROVIDING FOR SEVERABILITY; PKOVIDINU FOR GOVERNMENTAL IMMUNITY;
PROVIDING FOR INJUNCTIONS; PROVIDING FUR PUBLICATION AND BECONIING
EFFECTIVE UPON PUBLICATION OF ITS CAPTION; REPEALING ALL
ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND
FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS URDINANCE
IS PASSED IS OPEN TO THE PUBLiC AS KEQUIRED BY LAW.
WHEREAS, PEOPLES COMMUNICATION, INC., hereinafter referred
to as "PCI" is now and has been engaged in the business of
providing telecommunication services in the State of Texas and in
furtherance thereof desires to erect and maintained certain
facilities in the streets, alleys, highways, public
thoroughfares, public utility easements and public ways,
sometimes hereinafter referred to as "thoroughfares" of the City
ot Paris, Texas, hereinafter referred to as CITY, pursuant to the
consent given by the CITY for the term of years and under the
conditions specified in this Ordinance granting such consent,
subject to the exercise of reasonable regulation under the police
power; and,
WHEREAS, it is to the mutual advantage of both the CITY and
PCI that PCI operate in the CITY and in furtherance thereof that
PCI be permitted to construct and maintain its facilities in the
streets, alleys, highways, public thoroughfares, public utility
easements and public ways af the CITY under the conditions
established by the CITY;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF PARIS, TEXAS;
Section 1. That the CITY hereby grants to PEOPLES
COMMUNICATION, INC., its successors and assigns consent to use
and occupy the streets, alleys, highways, public thoroughfares,
public utility easements and public ways of the CITY for the
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purpose of maintaining and operating its poles, wires, anchors,
cables, manholes, conduits, and other facilities used in or
instant to the provision of telecommunications services, subject
to the terms, conditions, and stipulations set forth in this
ordinance, the Constitution and Law of the United States and the
State of Texas and the CITY's Charter and Ordinances as they may
be amended trom time to time; said consent being granted for a
term of 10 years from the date hereof. Said consent may at the
option of the governing body of the CITY be extended, in five
year increments with the terms hereof being reviewed 30 months
prior to the expiration of the initial or subsequent terms. The
right to use and occupy said streets, alleys, highways, public
thoroughfares, public utility easements and public ways of the
CITY shall not be exclusive and the CITY reserves the right to
grant a similar use of said streets, alleys, highways, public
thoroughfares, public utility easements and public ways to any
person or any corporation at any time during the period of this
franchise.
Section 2. PCI shall at all times during the life of this
franchise be subject to all lawful exercise of police power by
the CITY and to such reasonable and lawful regulation as the CITY
shall hereafter by charter, ordinance or resolution provide.
The terms of this franchise shall apply to all PCI tacilities
used, in whole or part, in the provision of telecommunications
services in newly annexed areas upon the effective date of such
annexation.
Section 3. PCI shall lay, maintain, construct, operate,
and replace its poles, wires, anchors, cables, manholes,
conduits, and appurtenances used, in whole or in part, to provide
telecommunications services so as ta interfere as little as
possible with traffic and shall promptly clean up and restore to
as good or better condition, at its cost, all thoroughfares and
other surfaces which it may disturb. The location of all PCI
facilities shall be fixed under the supervision of the CITY's
governing body or an authorized cammittee or agent appointed by
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said governing body. All poles, stubs, guys, anchors, and other
aboveground facilities shall be set so that they shall not
interfere with the flow of water in any gutter or drain, and so
that the same shall not interfere with ordinary travel on the
streets, alleys, highways, public thoroughfares, public utility
easements and public ways, and so that they shall not compromise
public safety. The CITY herein reserves the right to require PCI
to install or relocate aboveground facilities as far from
vehicular travel lanes as reasonably possible for traffic safety
purposes. The CITY also herein reserves the right to require
PCI, at its own expense, to install underground all new
facilities except to which aboveground access is necessary for
normal maintenance and connections, without claim for
reimbursement or damages against the CITY and to relocate all
such existing facilities underground at the cost of the CITY or
others. The location and route of all poles, stubs, guys,
anchors, conduits, cables and fiber-optic cables to be placed and
constructed by PCI in the CITY, and the location of all conduits
to be laid by PCI within the limits of the CITY shall be subject
to the reasonable and proper regulation, control and direction of
the governing body or of any city official to whom such duties
have been or may be delegated.
Section 4. PCI shall comply with all reasonable rules
and regulations of the CITY relative to street excavations, and
permits therefore. Any and all streets, alleys, highways, public
thoroughfares, public utility easements, public ways and, without
limitation by the foregoing enumerations, other public property
disturbed by PCI in building, constructing, renewing or
maintaining its facilities 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 to the satisfaction of the
governing body, or of any city official to whom such duties have
been or may be delegated. PCI shall be responsible for all
maintenance costs incurred as a result of any defects,
impairments or substandard condition in the street, alley,
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highway, public thoroughfare, public utility easement or public
way caused by the construction, maintenance or restoration work
of PCI. No street, alley, highway, public thoroughfare, public
utility easement or public way shall be encumbered for a longer
period than shall be necessary to execute the work. PCI shall
submit, in a format prescribed by CITY, information describing
the nature, location, and estimated duration of any activity
which will result in the disturbance of any street, highway,
alley, public thoroughfare, public utility easement or public
way. This information shall be submitted prior to the activity
except in the case of emergencies, in which case the information
shall be submitted as soon as practical. This information
requirement shall not apply to PIC's installation of service
wires. When PCI shall make or cause to be made excavations, or
shall place obstructions in any street, alley, highway, public
thoroughfare, public utility easement or public way, the public
shall be protected by barriers and lights placed, erected and
maintained by PCI; and in the event of injury to any person or
damage to any property by reason ot the construction, operation,
or maintenance of PCI's facilities, PCI shall indemnify and hold
harmless the CITY from any and all liability in connection
therewith. PCI shall repair, clean up and restore to an
approximate original condition all streets, alleys, highways,
public thoroughfares, public utility easements or public way
disturbed during construction and repair of its facilities.
Section 5. PCI shall maintain its facilities in a
reasonable operating condition at all normal times during
the term or any extension of this franchise. An exception to
this condition is automatically in effect when service furnished
by PCI is interrupted, impaired or prevented by fires, strikes,
riots, or other occurrences beyond the control of PCI, or by
storms, floods, or other casualties, in any of which events PCI
shall cio all things reasonably within its power to do to restore
normal service.
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Section 6. The CITY reserves the right to lay, and
permit to be laid, sewer, gas, water, electric, and other
pipelines or cables or conduits, and to do and permit to be done
any underground and overhead installation or improvement that may
be deemed necessary or proper by the governing body of the CITY
in, across, along, over or under any street, alley, highway,
public thoroughfare, public utility easement or public way
occupied by PCI, and to change any curb or sidewalk or the grade
of any street. In permitting such work to be done, the CITY
shall not be liable to PCI for any damage so caused, nor shall
the CITY be liable to PCI for any damages arising out of the
performance by the CITY or its contractors or subcontractors, not
willfully and unnecessarily occasioned; provided, however,
nothing herein shall relieve any other person or corporation from
liability for damages to facilities of PCI. The CITY expressly
reserves the right to change the grade, install, relocate, or
widen the public streets, sidewalks, bikeways, alleys, public
thoroughfares, highways and public ways and places within the
present limits of the CITY and within said limits as same may
from time to time be extended, and PCI shall relocate, at its own
expense, its poles, wires, cables, anchors, manholes, conduits,
fiber-optic cables, and other facilities and appurtenances in
order to accommodate the installation, relocation, widening, or
changing of the grade of any such public street, sidewalk,
bikeway, alley, public thoroughfare, highway or public way,
including if necessary relocating such poles, wires, cables,
anchors, manholes, conduits, fiber-optic cables or other
facilities or appurtenances to a sufficient distance from the
edge of the pavement to permit a reasonable work area for
machinery and individuals engaged in installing, relocating,
widening, or changing the grade of any public street, sidewalk,
bikeway, alley, public thoroughfare, highway or public way. The
CITY also herein reserves the right to require PCI to relocate,
at the sole expense of PCI, any facilities erected or maintained
pursuant to the privilege granted herein, if said relocation is
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deemed necessary by the governing body or its designated
representative for traffic safety purposes or the accommodation
of other necessary utilities owned and/or operated by the CITY or
the public service, including traffic signals. Whenever by
reason of changes in the grade of a thoroughfare or in the
location or manner of constructing a water pipe, gas pipe, sewer,
or other aboveground or underground structure, it is deemed
necessary by the CITY to remove, alter, change, adapt, or conform
the underground or aboveground facilities of PCI, PCI shall make
the alterations as soon as practicable when ordered in writing by
the CITY, without claim for reimbursement or damages against the
CITY.
Section l. PCI, on request of any person, shall promptly
remove or raise or lower its wires temporarily to permit the
moving of houses or other bulky structures. The reasonable
expense of such temporary removal, raising or lowering of wires
shall be paid by the benefitted party or parties.
Section 8. PCI, as a condition of the grant of this
franchise, and in consideration thereof, shall protect,
indemnify, and hold the CITY harmless against all claims for
damages to persons or property by reasons of the construction,
maintenance and operation of its facilities, and conduct of
business, or any way growing out of the granting of this
franchise, directly, or indirectly, when injury is cause, or
alleged to have been caused, wholly or in part, by any act,
omission, negligence, or misconduct of PCI or any of its
contractors, officers, agents, or employees, or by any person for
whose act, omission, negligence, or misconduct, PCI is by law
responsible. This provision is not intended to create liability
for the benefit of third parties but is solely for the benefit of
PCI and the CITY. In the event any claim is made against the
CITY that falls under this indemnity and a Court of competent
jurisdiction should adjudge, by final decree, that the CITY is
liable therefor, PCI shall indemnify and hold the CITY harmless
of and from any such judgment or liability, including any court
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costs, expenses, and attorney fees incurred by the CITY in
defense thereof. Upon commencement of any suit, proceeding at
law or in equity against the CITY relating to or covering any
matter covered by this indemnity, wherein PCI has agreed by
accepting this franchise, to indemnify and hold the CITY
harmless, or to pay said final judgment and costs, as the case
may be, the CITY shall give PCI immediate notice of such suit or
proceeding. Whereupon PCI shall provide a defense to any such
suit ar suits, including any appellate proceedings brought in
connection therewith, and pay as aforesaid, any final judgment or
judgments that may be rendered against the CITY by reason of such
damage suit. Upon failure of PCI to comply with the "defense of
suit" provisions of the franchise, after reasonable notice to it
by the CITY, the CITY shall have the right to defend the same in
addition to being reimbursed for any such judgment that may be
rendered against the CITY, together with all court costs incurred
therein, PCI shall reimburse the CITY for attorney's fees,
including those employed by the CITY in such case or cases, as
well as ail expenses incurred by the CITY by reason of
undertaking the defense of such suit or suits, whether such
suit or suits are successfully defended, settled, compromised, or
fully adjudicated against the CITY.
In the event the CITY is compelled to undertake the defense
of any such suit by reason of PCI's failure to perform as here
and above provided, the CITY shall have the full right and
authority to make or enter into any settlement or compromise of
such adjudication as the CITY Council shall deem in the best
interest of the CITY, this without the prior approval or consent
of PCI with respect to the terms of such compromise or
settlement.
Section 9. As a condition of the grant of this
franchise, and in consideration thereof, PCI shall reimburse the
CITY for its reasonable costs of participating in ratemaking
proceedings before any regulatory authority of the State
exercising jurisdiction over the rates of PCI including any
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appeals therefrom to the courts to the extent such costs are
tound reasonable by the applicable regulatory authority.
Section 10. In consideration for the rights and
privileges herein granted, the value of such rights and
privileges, the administration of this ordinance by the CITY, the
usage and interference with the public's usage of public
thoroughfares and other costs and obligations undertaken by the
CITY herein, PCI hereby agrees to pay the CITY during the term of
this ordinance a sum equal to three to five (3-5'/0) of annual
gross receipts as herein defined as follows: three percent (3'/0)
for the first year; four percent (4%) for the second, third and
fourth years; and five percent (5%) for the fifth and subsequent
years.
Such fee payment sha11 be made in five (5) payments. The
first four (4) payments shall be made on April 15, July 15,
October 15, and January 15, and shall be estimated at 25% of the
prior year's gross receipts as herein defined. The fifth payment
shall be a true-up payment to reflect the actual gross receipts
for the entire year and will be made on April 15 of the following
year and will include the first (April 15) payment for the then
current year. PCI will file with the fifth payment to the CITY a
financial statement prepared according to generally accepted
accounting principles showing in detail the applicable gross
receipts collected by category hereafter specified during the
preceding calendar year.
PCI sha11 maintain and shall make available for audit by the
CITY, upon reasonable notice, all necessary accounts and records
reflecting the amounts of and basis for computation of all gross
receipts within the CITY and each category thereof. All such
accounts and records shall be kept according to generally
accepted accounting principles and PCt shall provide within a
reasonable response time all information reasonably requested by
CITY to ascertain the amount of such gross receipts within the
CITY. "Gross receipts" shall mean all revenues collected by PCI
for telecommunications and communications services and related
services provided by PCI, its affiliates, successors, or assigns,
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for telecommunications and communications services and related
services provided by PCI to customers located within the
corporate limits of the CITY, or earned upon plant located within
the corporate limits of the city of Paris.
Section 11. CITY agrees that it will not impose a
franchise fee upon PCI's lessees so long as a franchise fee is
not imposed upon Southwestern Bell's lessees. At such time as
PCI's lessees would be required to pay a franchise fee, they are
hereby given and granted the option to pay the same rate as PCI
pays hereunder without the requirement to seek a franchise with
the CITY; or, if said lessee desires to pay the same fee as
lessees of Southwestern Bell pay, the same being different from
that paid by PCI, then such lessee would be required to enter
into a direct franchise agreement with CITY, providing for such
like fee as Southwestern Bell lessees pay.
Section 12. This ordinance shall be and is hereby
declared to be cumulative of a11 other orctinances of the CITY,
and this ordinance shall not operate to repeal or affect any of
such other ordinances. The consideration set forth herein shall
be in addition to and shall not serve as an offset to, be in lieu
of, or in any way reduce the amount payable to the CtTY, by PCI
or others, pursuant to any other franchise, charter provision,
statute, tax, or without limitation by the foregoing enumeration,
otherwise payable by PCI or others; it being the express intent
hereof that all such obligations, impositions and agreements of
every kind and nature shall remain in full force and effect
without reduction or limitation thereby.
Section 13. In addition to the consideration set forth
above, PCI shall hold itself ready to furnish, subject to the use
of the CITY, such wire or fiber-optic cable space and duct space
as may be required from time to time by the CITY upon the poles,
ducts and cables now owned or hereafter erected, installed or
utilized by PCI in the CITY including but not limited to those
for the use of the CITY's police, fire alarm, emergency warnirig
systems and traffic signal systems. (Hereinafter referred to in
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this section as "systems.") The location on the poles of the
systems shall be determined on specific applications for space at
the time the applications are received from the CITY and will be
allotted in accordance with the considerations for electrical
construction of the United States Department of Commerce, Bureau
of Standards. PCI shall hold itself ready to furnish sufficient
duct or cable space not to exceed the capacity of one duct or
cable and four (f) fibers tor the use by the CITY in carrying its
systems. All such wires or fiber-optic cable, whether on poles
or in conduits, shall be constructed, uiaintained and operated in
such manner as not to interfere with nor create undue hazarci in
the operation of the communication system of PCI.
Section 14. This ordinance and the agreements contained
herein shall be in full force and effect for the period beginning
with the effective date hereof and ending ten (10) years later
unless extended by the governing body as provided herein.
Section 15. The CITY, at its option, may terminate this
franchise by giving written notice of such termination to PCI on
the occurrence ot any of the following:
1. The filing of a voluntary bankruptcy by PCI.
2. The taking of jurisdiction of PCI or its assets in
bankruptcy proceedings by any court, such proceedings not
being vacated within thirty (30) days.
3. The taking of PCI's interest in this contract or a
property placed on the premises by execution.
4. The appointment by a court of a receiver for PCI, such
proceedings not being vacated in thirty (30) days.
Section 16. Notwithstanding any other provisions of this
ordinance, the City Council shall have the option to forfeit,
cancel, or terminate this franchise at any time for failure of
PCI to comply with any terms, conditions, or provisions of this
franchise or if PCI should fail to comply with any reasonable
provisions of any ordinances of the CITY regulating the use by
PCI of the streets, alleys, highways, thoroughfares or public
ways ot the CITY in accordance with the following procedures:
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l. If PCI further continues to violate or fail to comply
with the terms and provisions of this franchise or the terms
and conditions of any applicable CITY ordinance for a period
of thirty (30) days after PCI shall have been notified in
writing by the CITY to cease and desist from such violation
or failure to comply as specified, then PCI shall be deemed
to have forfeited and annulled and shall thereby forfeit and
annual all rights and privileges granted by this franchise;
provided, however, that if PCI is in violation of any
provision of this ordinance other than the payment of money
and if PCI commences work or other efforts to cure such
violations within thirty (30) days after receipt of written
notice and shall thereafter prosecute such curative work
with reasonable diligence until such curative work is
completed, then such violations shall cease to exist, and
the franchise will not be forfeited.
2. Provided that such forfeiture shall be declared only by
a written decision of the governing body after an
appropriate public proceeding before the governing body
according to PCI due process and full opportunity to be
heard and to respond to any such notice of violation or
failure to comply. All due process requirements shall be
met by providing PCI at least prior written notice of any
public hearing concerning the forfeiture of the franchise
and, in addition, fifteen (15) days notice by publication
shall be given of the date, time and place of any public
hearing to interested members of the public, which notice
shall be paid for by PCI.
3. The governing body, after full public hearing, may in
its discretion forfeit the franchise, or upon finding a
violation or failure to comply, impose a lesser penalty than
forfeiture of this franchise, including but not limited to a
penalty of $1,000 per day per violation, or excuse the
violation or failure to comply upon a showing by the company
of mitigating circumstances or upon a showing of good cause
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of said violation or failure to comply as may be determined
by the governing body.
PCI shall not be excused from complying with any of the
terms and conditions of this franchise on any failure of the
CITY upon any one or more occasions to insist upon or to
seek compliance with any such terms or conditions.
Section 17. For the purpose of this Ordinance, notice to
the CITY will be to:
Michael E. Malone, City Manager
City ot Paris
P. 0. Box 9037
Paris, TX 75461-9037
With a copy to:
City Attorney
P. 0. Box 9037
Paris, TX 75461-9037
Notice to PCI will be to:
PEOPLES COMN'iUN1CATI0N, INC.
P. 0. Box 920
Quitman, Texas 75783
With a copy to:
PEOPLES COMMUNICATION, INC.
Attention: Legal
P. 0. Box 920
Quitman, Texas 75783
Notice will be effective upon delivery at the above
addresses until the CITY or PCI notifies the other, in writing,
of a change in the address.
Section 18. All the provisions of this franchise shall be
binding upon PCI, its successors and assigns, whether expressly
so stated herein or not, and all grants, rights, and privileges
secureci by this franchise to PCI shall inure to the benefit of
its legal and bonafide representatives, successors and assigns
approved as provided herein.
Section 19. This Ordinance shall be and is hereby
declared to be cumulative of all other ordinances of the CITY,
and this Ordinance sha11 not operate to repeal or affect any of
such other ordinances except insofar as the provisions thereof
might be inconsistent or in conflict with the provisions of this
Ordinance, in which event such contlicting provisions, if any, in
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such other ordinance or ordinances are hereby repealed to the
extent of such inconsistency. Provided all other ordinances,
rules, regulations, and agreements which are not in conflict with
this Ordinance and which in any manner relate to the regulation
of the city streets, alleys, and public places or the business of
PCI shall remain in full force and effect.
Section 20. All valid provisions of the Charter of
the CITY, and the Code of Ordinances of the CITY, as they may be
amended from time to time, not in conflict with the express
provisions hereof, shall become part of this franchise as fully
as if same had been expressly stated herein, and the CITY may
exercise all the powers and rights retained by it in said charter
as fully as if all the provisions therein had been written
herein.
Sectiori 21. This franchise shall not be transferred by
PCI except with the approval of the governing body of the CITY
expressed by ordinance. PCI shall provide the CITY with notice
of all mergers, takeovers, consolidations, or changes in
corporate structure.
Section 22. The CITY's consent to PCI's use of and
occupancy of the city streets, alleys, highways, public
thoroughfares, and public ways in furtherance of the provision of
local communication service is conditioned on PCI's compliance
with the terms and conditions stated herein and the payment of
the consideration stated herein. PCI's continued occupancy and
use of the city streets to provide local communication service
shall be deemed acceptance of the terms and conditions stated
herein and agreement to pay the consideration stated herein.
Section 23. It is hereby declared to be the intention of
the CITY Council of the CITY of Paris that the sections,
paragraphs, sentences, clauses and phrases of this ordinance are
severable, and if any phrase, clause, sentence, paragraph or
section of this ordinance shall be declared unconstitutional,
invalid or unenforceable by the valid judgement or decree of any
court of competent jurisdiction, such unconstitutionality,
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invalidity, or unenforceability shall not affect any of the
remaining phrases, clauses, sentences, paragraphs and sections of
this ordinance, since the same would have been enacted by the
City Council without the incorporation in this ordinance of any
unconstitutional, invalid or unenforceable phrases, clauses,
sentences, paragraphs or sections.
Section 24. All of the regulations provided in this
Ordinance are hereby declared to be for a public purpose and the
health, safety, and welfare of the general public. Any member of
the governing body or city official or employee charged with the
enforcement of this Ordinance, acting for the CITY in the
discharge of his duties, shall not thereby render himself
personally reliable; and he is hereby relieved from all personal
liability for any damage that might accrue to persons or property
as a result of any act required or permitted in the discharge of
his said duties. Neither the CITY nor PCI by accepting this
franchise waives its right to seek all appropriate legal and
equitable remedies as allowed by law upon violation of the terms
of this franchise, including seeking injunctive relief in a court
of competent jurisdiction.
Section 25. It is hereby officially found and determined
that the meeting at which this Ordinance is passed is open to the
public as required by law and that public notice of the time,
place and purpose of said meeting was given as required.
Section 26. This Ordinance shall become effective from
and after its passage as provided by law.
Passed and approved by the CITY Council of the CITY of
Paris, Texas this ~ day of s;-✓, 1990.
Eric S. li or , Mayor
ATTEST:
Mattie Cunningham, City C erk
APPROVED S TO FORM:
~
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T. K. Haynes, City Attorney
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