HomeMy WebLinkAboutV(B) Adelphia Cable Television Franchise Agreement Agenda 11-18-2003
Item
Mayor center of Good L�y� Commissi V B
ire g
S. Scott Vandergrift �/ii> ,,,,. Danny Howell, District 1
. Scott Anderson, District 2
City Manager °COE►- ` Rusty Johnson, District 3
Jim Gleason -, / A; Nancy J. Parker, District 4
STAFF REPORT
TO: The Honorable Mayor and City Commissioners
FROM: Janet G. Shira,Assistant to the City Manager
DATE: November 10, 2003
RE: Adelphia Cable Television Franchise Agreement
ISSUE
Should the Honorable Mayor and City Commissioners approve the attached Resolution for a franchise for
Adelphia Cable Television?
BACKGROUND/DISCUSSION
Adelphia has requested a cable television franchise for a limited area of Ocoee. Exhibit "A"of the
Resolution provides the legal description for the franchise area. The area is more generally described as the
new Westyn Bay development which has been approved for 684+/-units.
The terms of the franchise agreement are comparable to the current franchise with Bright House Networks.
The major difference in the franchise agreements is the territory they would serve. Where Bright House
Network's franchise includes the entire Ocoee city limits,the Adelphia franchise has been drafted to include
only the property contained in Exhibit"A".
The Adelphia franchise agreement does require the two government channels as well as a$30,000
contribution to OGTV-Channel 10 to assist the station in bringing government television to the residents in
the franchise area. That financial contribution may be used for equipment,personnel, and/or operating costs.
The franchise requires the same level of customer service commitment from the cable operator as is required
from the existing franchise holder(Bright House Networks).
As a courtesy,Bright House Networks was mailed a copy of the draft franchise in September. On October
7th,the City's special legal counsel mailed a letter to the Bright House legal counsel requesting that they
contact the City prior to the public hearing if they have any questions or concerns. Bright House counsel did
contact the City on November 3,the day before the scheduled public hearing. They asked the City to
continue the public hearing so that they could meet with City staff to explain their concerns. A meeting was
scheduled for November 7th; however, Bright House cancelled the meeting the morning it was to take place.
City staff and our legal counsel have asked Adelphia to indemnify the City if a lawsuit is brought against the
City for the granting of the franchise. This will protect the City from having a potential financial liability as
a result of granting the franchise.
Page 2
Adelphia Staff Report
November 10, 2003
RECOMMENDATION
If Adelphia is willing to indemnify the City from any potential claims as a result of granting the franchise,
then staff respectfully recommends that the City Commission approve Resolution 2003-22.
Cc: Jim Gleason, City Manager
Mary Sneed,Fowler&O'Quinn, Special Counsel, City of Ocoee
Chuck Blaine,Adelphia
CITY OF OCOEE, FLORIDA
RESOLUTION NO.: 2003 - 22
A RESOLUTION OF THE CITY OF OCOEE, FLORIDA,
APPROVING A FRANCHISE AGREEMENT WITH
TELESAT ACQUISITION LIMITED PARTNERSHIP,
D/B/A ADELPHIA CABLE COMMUNICATIONS,
("ADELPHIA") PURSUANT TO THE CITY OF OCOEE,
FLORIDA, CABLE TELEVISION CODE,ADOPTED BY
ORDINANCE NO 99-37, TO OWN, OPERATE AND
MAINTAIN A CABLE TELEVISION SYSTEM IN THE
CITY OF OCOEE, FLORIDA, AND SETTING FORTH
SUCH CONDITIONS ACCOMPANYING THE GRANT
OF SUCH FRANCHISE AND PROVIDING FOR
REGULATION AND USE OF SUCH SYSTEM;
PROVIDING FOR CONFLICTS, PROVIDING FOR
SEVERABILITY; AND PROVIDING A SAVINGS
CLAUSE; AND AN EFFECTIVE DATE THEREFORE.
TABLE OF CONTENTS
SECTION ONE: Authority 3
SECTION TWO: Approval of Franchise 3
SECTION THREE: Constitution of Franchise Agreement 3
Section 1. Definitions 3
Section 2. Grant of Franchise 4
Section 3. Term of Franchise 4
Section 4. Non-Exclusive Franchise 5
Section 5. Franchise Subject to Communications Act. State Law and
Ordinance 5
Section 6. Franchisee Subject To Other Laws, police power 5
Section 7. Reservation of Rights 6
Section 8. Insurance. 7
Section 9. Indemnification of the City. 7
Section 10. Security. Fund 8
Section 11. Construction Bond 8
Section 12. Use of Streets 8
Section 13. Minimum Facilities and Services 9
Section 14. Technological Improvements to System 12
Section 15. Technical Standards 13
Section 16. Proof of Performance Tests. 13
Section 17. Access Channels and Facilities 13
Section 18. Commercial Leased Access 15
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Section 19. Emergency Use of Facilities 15
Section 20. Lock-out Devices 15
Section 21. Closed-circuit Captioning for the Hearing: Impaired 16
Section 22. Line Extension Policy 16
Section 23. Cable Home Wiring Commitments 16
Section 24. _Franchise Fee 16
Section 25. Reports and Records 16
Section 26. Right to Inspect Financial Records and Facilities 16
Section 27. Customer Service Requirements 17
Section 28. City Purchase of Cable System 18
Section 29. Modification of Franchise 18
Section 30. Transfer of Franchise 18
Section 31. Procedures for Requesting Approval of Transfer 18
Section 32. Renewal of Franchise 20
Section 33. Rates 20
Section 34. Enforcement Remedies 21
Section 35. Area-wide Interconnection 21
Section 36. Written Notice of Acceptance 22
Section 37. No Opposition 22
Section 38. Execution in Counterpart 23
SECTION FOUR: Repeal of Conflicting Resolutions 25
SECTION FIVE: Savings 25
SECTION SIX: Severability 25
SECTION SEVEN: Applicable Law 25
SECTION EIGHT: Effective Date 25
SECTION NINE: Charter Compliance 25
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF OCOEE, FLORIDA, AS FOLLOWS:
SECTION ONE: Authority. The City Commission of the City of Ocoee, Florida has
the authority to adopt this Resolution pursuant to Article VIII of the Constitution of the State
of Florida; Chapter 166, Florida Statutes; Section C-8(H) of the Charter of the City of
Ocoee; and City of Ocoee Ordinance No. 99-37.
SECTION TWO: Approval of Franchise. The City of Ocoee hereby approves a
Franchise with Adelphia to own, operate, and maintain a cable television system in the City
of Ocoee, Florida.
SECTION THREE: Constitution of Franchise Agreement. The following shall
constitute the Franchise Agreement between the City of Ocoee, Florida and Adelphia.
THIS AGREEMENT, effective this Day of , 2003, is by and between
the CITY OF OCOEE, a Florida municipal corporation (the "City") and TELESAT
ACQUISITION LIMITED PARTNERSHIP, D/B/A ADELPHIA CABLE COMMUNICATIONS
("ADELPH IA").
WHEREAS, pursuant to the Communications Act of 1934, as amended, 47 U.S.C.
§§ 521 et seq., the City of Ocoee, Florida, may grant or renew a franchise to construct,
operate and maintain a cable television system; and
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WHEREAS, on December 7, 1999, the City Commission of Ocoee, Florida
("Commission") adopted Ordinance No. 99-37 of the City of Ocoee, Florida and provided
for the issuance and regulation of cable television franchises for, and the installation,
construction, maintenance and operation of, cable television systems within the City; and
WHEREAS,Adelphia desires a franchise to construct, install, maintain, and operate
a cable system in the City, and has applied to the City for such franchise; and
WHEREAS, the construction, installation, maintenance, and operation of such a
system involves the use and occupation of the Streets of the City, over which the City
exercises governmental control; and
WHEREAS, the Commission has evaluated (or caused to be evaluated by its
consultants)Adelphia's application in light of the requirements of federal and state law and
the Ordinance and has conducted a public hearing concerning Adelphia's request and
application; and
WHEREAS, the Commission has relied on Adelphia's representations and has
considered all information presented to it by representatives of Adelphia, the City staff and
the public; and
WHEREAS, based upon the representations and information, the Commission has
determined that the grant of Adelphia's nonexclusive franchise to construct, install,
maintain and operate a cable system in the City, subject to the terms and conditions set
forth herein and in the Ordinance, is consistent with the public interest; and
WHEREAS, on the City Commission at a duly noticed public
hearing considered the economic impact upon private property within the franchise area;
the public need for such franchise; the capacity of public rights-of-way to accommodate the
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cable system; the potential disruption to existing users of the public rights-of-way to be
used by the cable system and any resultant inconvenience which may occur to the public;
the financial ability of the franchise applicant to perform; other societal interests generally
considered in cable television franchising; and such other additional matters deemed
relevant and determined that it would be appropriate to grant a franchise for cable service
to Adelphia;
WHEREAS, on the Commission determined to grant
Adelphia's non-exclusive franchise to own, construct and operate a cable television system
within the City, subject to the terms and conditions of the Ordinance and subject also to the
City and Adelphia entering into this Franchise Agreement; and
WHEREAS, the City and Adelphia have reached agreement on the terms and
conditions of this Franchise Agreement.
NOW, THEREFORE, in consideration of the City's grant of Adelphia's franchise to
own, construct, install, maintain and operate a cable system within the City, and to use and
occupy the Streets of the City for that purpose, and in consideration of Adelphia's promise
to provide cable service to residents of the City pursuant to the Ordinance and under the
terms and conditions set forth herein, and in consideration of the promises and
undertakings herein, and other good and valuable consideration, the receipt and the
adequacy of which is hereby acknowledged, the franchise is hereby granted; and
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
Section 1. Definitions. Except as otherwise provided herein, the definitions in Section
57-02 of Ordinance No. 99-37 of the City of Ocoee, Florida, shall govern this Franchise
Agreement. In addition, the following definitions shall apply:
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1. Ordinance shall mean Ordinance No.99-37 of the City of Ocoee,Florida,as enacted
on December 7, 1999, and any references in this Franchise to said Ordinance or to
any section thereof shall mean the Ordinance as enacted on that date.
2. Franchisee or Adelphia shall mean Telesat Acquisition Limited Partnership d/b/a
Adelphia Cable Communications and its lawful and permitted successors,assigns and
transferees pursuant to Section 31 of this Agreement and Section 57-24 of Ordinance
No. 99-37 of the City of Ocoee, Florida, respectively.
3. Notice to the cable operator shall be deemed effective upon receipt. Notice to the City
shall be effective upon receipt by the City Manager.
Section 2. Grant of Franchise.
1. Subject to the terms of this Franchise Agreement and Ordinance No.99-37,the City
hereby grants Franchisee a franchise for the right and privilege to own, construct,
install,maintain and operate a Cable System within the Franchise Area,described on
Exhibit"A", attached hereto.
2. The Franchise granted herein is solely for the operation of a cable system to
provide cable services in the City of Ocoee.
2. Any agreement by Franchisee to provide cable service on its cable system in the
City is subject to the terms of this Franchise.
Section 3. Term of Franchise. This franchise shall be for a period of ten (10) years,
unless otherwise sooner terminated or otherwise extended in accordance with the terms of
this Franchise Agreement. The Franchise shall commence upon and
terminate on . This Franchise Agreement is subject to all other
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requirements and conditions set forth herein and in Ordinance No. 99-37 of the City for a
grant of a franchise to become effective.
Section 4. Non-Exclusive Franchise. The Franchisee's right to use and occupy the
Streets shall be non-exclusive, and does not expressly or implicitly preclude the issuance
of other franchises to operate cable systems within the City, or affect the City's right to
authorize use of City Streets to other persons to operate cable systems or for other
purposes as it determines appropriate, during the term of this Franchise Agreement. Any
such franchises shall be granted in a nondiscriminatory and competitively neutral manner,
consistent with applicable law.
Section 5. Franchise Subiect to Communications Act. State Law and Ordinance.
A. This Franchise Agreement is subject to and shall be governed by all terms,
conditions and provisions of the Communications Act, any amendments thereto, and any
other applicable provision of Federal or State Law, existing or hereafter adopted.
B. This Franchise Agreement is subject to and shall be governed by all terms,
conditions and provisions of Ordinance No. 99-37 of the City, in effect at the time of the
effective date of this Agreement, or any extension or renewal hereof, in addition to the
terms, conditions and provisions set forth in this Franchise Agreement, and the provisions
of the Ordinance shall prevail over conflicting or inconsistent provisions of this Franchise
Agreement, unless an explicit intent to amend or modify the Ordinance is herein
expressed.
Section 6. Franchisee Subiect To Other Laws, police power.
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A. The Franchisee is subject to, and agrees to comply with all applicable Federal,
State and local laws.
B. The Franchisee shall at all times be subject to all lawful exercise of the police
power of the City, to the extent not inconsistent with the express terms of this Franchise
Agreement.
Section 7. Reservation of Rights.
A. This Franchise Agreement shall be modified, at the request of the City or
Franchisee, after public notice and hearing, to comply with the laws of the State of Florida
and Federal Law, including, but not limited to, the rules and regulations promulgated by the
Federal Communications Commission.Any such modification shall be in a writing executed
by both the City and Franchisee.
B. The City reserves all rights to exercise its powers as granted by the Constitution
of the State of Florida or by other applicable State or Federal law. Franchisee shall at all
times be subject to all lawful exercise of the police power of the City, to the extent not
inconsistent with the express terms of this Franchise.
C. Subject to applicable law, except as may be specifically provided in the
Ordinance or under the terms of this Franchise Agreement, and subject to the
Communications Act, the failure of the City, upon one or more occasions, to exercise a
right or to require compliance or performance under this Franchise Agreement or
Ordinance, shall not he deemed to constitute a waiver of such right or a waiver of
compliance or performance.
D. The City reserves the right to acquire, purchase, own and/or operate a Cable
System to the extent permitted by local, State and Federal Law.
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Section 8. Insurance.
A. Franchisee shall obtain and maintain insurance of the types and minimum
amounts required in Section 57-10 of Ordinance No. 99-37, in such a manner as to
comply with each and every requirement of that Section.
B. The Franchisee shall provide proof to the City of compliance with this Section no
later than sixty(60)days from the date of the Commission resolution approving the grant of
the Franchise. Failure to provide the City with proof of insurance within the prescribed
time period will be a violation of this Franchise Agreement and subject Franchisee to
penalties consistent with this Franchise and the Ordinance.
Section 9. Indemnification of the City.
A. Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and
defend the City, its elected or appointed officials, employees, committees and boards,
against any and all claims, suits, costs, losses, damages, expenditures causes of action,
proceedings, judgments for equitable relief, and costs and expenses in accordance with
Section 57-10 of Ordinance 99- 37 of the City.
B. The Franchisee shall pay, and by its acceptance of this Franchise the Grantee
specifically agrees that it will pay, all damages and penalties which the City may legally be
required to pay as a result of granting this Franchise. These damages or penalties shall
include, but shall not be limited to, all damages arising out of the installation, operation, or
maintenance of the Cable television system authorized herein, whether or not any act or
omission complained of is authorized herein, and whether or not any act or omission
complained of is authorized, allowed, or prohibited by this Franchise.
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C. The Franchisee shall pay, and by its acceptance of this Franchise specifically
agrees that it will pay, all expenses incurred by the City in defending itself with regard to all
damages and penalties mentioned in subsections A and B above. These expenses shall
include all out-of-pocket expenses, such as attorney fees, and shall also include the
reasonable value of any services rendered by the City attorney or his assistants, special
counsel hired by City or any employees of the City.
Section 10. Security. Fund. Pursuant to Section 57-11 of Ordinance 99-37, the
Franchisee shall establish and maintain a security fund with the City in an amount of Fifty
Thousand Dollars ($50,000.00), in the form a cash deposit, performance bond, or letter of
credit.
Section 11. Construction Bond. Pursuant to Section 57-12 of Ordinance No. 99-37,
prior to any Cable System construction, upgrade, rebuild or other work in the streets,
Franchisee shall furnish a construction bond in favor of the City in an amount of not less
than Twenty Five Thousand Dollars ($25,000.00). Failure to provide such construction
bond to the City no less than ten (10)days prior to the start of any work to be performed in
the streets shall constitute a material violation of this Agreement and the Ordinance subject
to remedies in accordance with Section 57-32 of the Ordinance. The construction bond
must be approved by the City, which approval shall not be unreasonably withheld. The
construction bond shall be maintained until said construction work hereof is completed and
for a period not to exceed six (6) months thereafter. Franchisee shall notify the City in
writing when it believes the construction has been completed.
Section 12. Use of Streets.
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A. Franchisee agrees at all times to comply with and abide by all applicable
provisions of the City Code.
B. All of Franchisee's Cable System distribution facilities shall be installed and
maintained in accordance with Section 57-21 of Ordinance No. 99-37.
C. If the City is required to perform emergency Street work requiring relocation of
Franchisee's facilities in the Streets, then Franchisee shall reimburse the City for its
reasonable costs associated with such relocation, to the extent other users of the rights-of-
way are so responsible, consistent with applicable law. If circumstances permit, City shall
make reasonable efforts to notify Franchisee in advance, so that it may perform the work.
Section 13. Minimum Facilities and Services.
A. The Franchisee shall provide minimum facilities and services in accordance with
Section 57-13 of the Ordinance. Franchisee shall, at all times during the term of this
Franchise, perform all necessary repairs, modifications, or other measures to its cable
system necessary for the cable system to be capable of passing frequencies of at least
750 MHZ and being fully operational with a minimum channel capacity of at least seventy
eight (78) video channels.
B. In the event Franchisee fails to maintain the system in the City as required in A
above, then the Franchisee agrees that the City may impose fines in the amount of Seven
Hundred and Fifty Dollars ($750) per day as of the date Franchisee was required to comply
with the provisions of Section 13(A)above, as set forth in Section 57-13 of the Ordinance,
provided, however, that City shall not impose a fine if the delay is a result of force majeure
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or other circumstances beyond Franchisee's control. It is agreed that the aforestated fine
represents a reasonable estimate of the damages suffered by the City and or its
subscribers, whether actual or potential.
C. In the event the Franchisee is required to provide a future system rebuild or
upgrade of the Cable System, the date of completion of such rebuild or upgrade will be in
accordance with Section 57-13 of the Ordinance.
D. Franchisee further agrees, upon request, to provide Cable Service, without
charge, to all City buildings in accordance with Section 57-13 of the Ordinance. Such
service shall include the Basic Cable Service tier, including any additional programming
added to that level of service.
E. School Commitments.
1. Franchisee shall, upon request, provide at least one cable television service
outlet and when technically feasible and available in the area, at least one standard
installation connection to a cable on-line service to each public elementary and secondary
school within its franchise area that is passed by its cable system, and shall provide Basic
Cable Service and cable on-line service to those installations, at no cost to the City or
school involved, and shall charge no more than its time and material costs for any
additional cable service outlets (including cable on-line service)to such facilities pursuant
to Section 57-13 of the Ordinance. Notwithstanding anything herein to the contrary, the
Franchisee shall, upon request, provide installations and service as required herein, to all
public schools serving the City of Ocoee, within the physical boundaries of the City.
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2. Any school connected pursuant to subparagraph I above may elect to install its
own internal wiring (provided such wiring meets required technical specifications) and to
bear the cost thereof. Basic Service shall be provided to each outlet in all connected
schools, at no cost to the City or school involved.
3. Franchisee may provide a free education program listing to each connected
school. Such educational program listing will identify and describe programming on
Franchisee's system that is appropriate for use in the classroom and will provide
Suggested curriculum support ideas.
4. Franchisee may provide to each connected school materials for teachers that
explain the educational applications of Franchisee's broadband cable systems and
services. If provided, the materials will be provided to all connected schools.
5. Nothing herein shall preclude Franchisee from providing benefits to schools
which exceed those provided herein.
F. All video signals received for transmission that contain closed circuit captioning
information for the hearing impaired shall, in turn, contain such information in the form
received when transmitted by the cable operator to the subscribers of the system.
G. Franchisee shall comply with technical standards as set forth in Section 57-14(A)
of the Ordinance.
H. Franchisee shall comply fully with all applicable laws concerning handicapped or
disabled persons, and shall indemnify and hold the City harmless from any suit, claim, or
demand against it for violation of such laws that arises from Franchisee's provision, or
failure to provide, services in conformity with such laws.
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I. Any and all rights which the City may have, now or in the future, to regulate the
Franchisee's provision of the cable Internet services are hereby reserved by the City and
may be exercised at any time throughout the term of this Franchise Agreement, unless
otherwise prohibited by applicable law. If Franchisee provides access to its System to
Internet Service providers on an open, non-discriminatory basis on a Cable System owned
or operated by the Franchisee, its parents, affiliates or subsidiaries, Franchisee shall
provide access on such basis on any service which the Franchisee provides in the City.
Section 14. Technological Improvements to System.
A. Throughout the term of this franchise, the Franchisee shall construct, operate,
maintain and upgrade the Cable System in order to ensure that it continuously conforms to
the State of-the-Art technology, comparable to that defined in the Ordinance.
B. Pursuant to Section 57-17 of Ordinance 99-37 of the City, the Franchisee shall,
upon request, report annually in writing to the City Manager, a summary of the previous
year's activities in development of the State of the Art of cable systems and the system
serving the City including but not limited to, services and products initiated or discontinued,
new technologies, number of subscribers, homes passed, and miles of cable distribution
plant in service. The summary shall also include a comparison of any construction,
including system upgrades, during the year with any projections previously provided to the
City, as well as rate and charge increases and/or decreases for the previous fiscal year. It
is the obligation of the Franchisee to include within this report any and all information
necessary to evaluate Franchisee's system consistent with State of the Art technology
comparable to that defined in Section 57-2 of the Ordinance.
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C. The Franchisee shall make such technically and commercially feasible
improvements to its System as may be necessary to bring the System to the State of the
Art, pursuant to Section 57-13 of the Ordinance.
D. Any upgrade or rebuild of a Franchisee's Cable System ordered by the City
Commission pursuant to this Section and the Ordinance may include such incentives as
the Commission may deem appropriate to ensure timely compliance by the Company to
the extent provided in the Ordinance.
Section 15. Technical Standards. Franchisee shall maintain and operate its Cable
System, at a minimum, in full compliance with Section 57-14 of Ordinance No. 99-37.
Section 16. Proof of Performance Tests. Franchisee shall perform, at its expense, the
proof of performance tests as required by Section 57-14 of Ordinance No. 99-37.
Section 17. Access Channels and Facilities.
A. Access Channel Capacity. pursuant to Section 57-15 of the Ordinance,
Franchisee shall provide the City for its exclusive use with one (1) activated access
channel for educational and/or governmental access use, as determined by the City, and
shall make available on the System an Orange County government access channel subject
to the following terms and conditions:
1. Franchisee shall make available the City of Ocoee access channel on
those portions of its cable systems in the City of Winter Garden, the City of Oakland and
the western part of unincorporated Orange County, at such time as Franchise provides
service to those areas, provided that the appropriate franchising authority requires carriage
of the channel as the franchising authority's government access channel.
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2. Some customers may not receive the City of Ocoee access channel
due to the fact that the design of the cable system as recently
upgraded does not precisely correspond to governmental
boundaries; but in all events, the Franchisee shall, within a
reasonable period of time, provide the City of Ocoee access
channel to City residents/subscribers on any node on which
the majority of subscribers are residents of the City of Ocoee.
3. Franchisee shall continue to maintain adequate capacity on its System
to permit the upstream transmission of programming from the City Hall Building for the
purpose of carriage of the programming on the City government access channel.
4. Franchisee shall continue to maintain adequate capacity on its System
to permit the upstream transmission of programming from West Orange High School for
the purpose of carriage of the programming on the City government access channel,
provided that, since the location is outside the boundaries of the City, the Franchisee has
the right to install its facilities necessary to meet this obligation.
5. Franchisee shall make available and maintain all necessary headend
and system electronic and distribution equipment so that any programing transmitted
upstream on the upstream channel from the City Hall Building and/or West Orange High
School may be transmitted downstream to Subscribers on the City of Ocoee access
channel provided pursuant to this Section and Section 57-15 of the Ordinance.
6. Franchisee agrees that all access channels will be provided to
Subscribers of the System as a part of Basic Service. If such information is supplied to
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Franchisee or known by Franchisee, Franchisee will publicize programming on the access
channels as a part of any ordinary printed program listings which Franchisee prepares or
will include access channel programming listings in any monthly program guide which
Franchisee prepares, provided that information concerning access channel programming is
provided to or becomes known to Franchisee within the time that other programmers are
required to provide such information for inclusion in such program listings or program
guide.
B. Access Facilities. Equipment and Support. Franchisee shall provide to the
City a grant in the amount of Thirty Thousand Dollars ($30,000.00), for equipment for the
production of programming for the City's Access Channel.
Section 18. Commercial Leased Access. Franchisee shall provide commercial leased
access channels as required by Federal Law.
Section 19. Emergency Use of Facilities.
A. Franchisee shall comply with all FCC rules on emergency use of facilities and
consistent therewith emergency communications shall be coordinated through the Orange
County Emergency Services Office.
B. Franchisee shall provide adequate standby power generating capacity at the
Cable System headend and on its system to the extent consistent with its normal operating
standards.
Section 20. Lock-out Devices. Franchisee shall make available at reasonable charge
to any residential Subscriber, upon the request of such Subscriber, a "parental guidance"
or"lock-out" device which shall permit the Subscriber, at his or her option, to eliminate the
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audio and visual transmissions from any Channel reception to the extent technically
feasible. Such device may be a function of a converter.
Section 21. Closed-circuit Captioning for the Hearing: Impaired. Franchisee shall
make available at a reasonable charge to any hearing-impaired residential Subscriber,
upon the request of such Subscriber, equipment capable of decoding closed-circuit
captioning information for the hearing impaired.
Section 22. Line Extension Policy. Upon request and payment of all applicable
charges, and provided that the requesting person gives Franchisee access to his or her
premises in order to furnish, maintain and continue to offer service to that person,
Franchisee shall, throughout the term of this Agreement, promptly furnish, maintain, and
continue to provide all services distributed over the System to any person at his or her
place of residence within the City, in accordance with Section 57-13.B of the Ordinance.
Section 23. Cable Home Wiring Commitments. Franchisee will comply with all FCC
rules regarding cable home wiring, as amended from time to time.
Section 24. Franchise Fee. In Consideration of the privilege granted herein to use and
occupy the streets to own, construct, install, maintain and operate its cable system,
Franchisee shall comply with the provisions of§337.401, Florida Statutes and Chapter 202,
Florida Statutes, as compensation for the privilege granted under a franchise for the use of
the City's streets to construct and operate a cable system.
Section 25. Reports and Records. Franchisee shall furnish the City with all of the
information as required under Sections 57-17 and 57-18 of Ordinance No. 99-37.
Section 26. Right to Inspect Financial Records and Facilities.
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A. Franchise shall abide by the provisions of Sections 57-17 and 57-18 of the
Ordinance with respect to reports and records.
B. Pursuant to Section 57 -17 and Section 57 - 33(D) of Ordinance No. 99-37, the
City shall have the right to inspect, at Franchisee's local office, the books and records
specified in Subsection 26(A) hereof and such other records as may be required by the
City to perform its regulatory responsibilities under Ordinance No. 99-37 or applicable
Federal Law. The City agrees to carry out any such inspection during Franchisee's normal
business hours and upon reasonable notice. Access by the City, consistent with Section
57-17(D)of the Ordinance, to perform its regulatory responsibilities to Franchisee's books
and records shall not be denied on grounds that such books and records contain
proprietary or confidential information.
C. The City shall accord all books and records that it inspects under this Section
the degree of confidentiality in accordance with Section 57-17 of Ordinance 99-37.
D. Pursuant to Section 57-18 and Section 57-33 of Ordinance No. 99-37, the City
shall have the right to inspect Franchisee's facilities and property during Franchisee's
normal business hours and upon reasonable notice.
Section 27. Customer Service Requirements.
A. Franchisee agrees to comply with each of the customer service requirements
set forth in Section 57-18 of Ordinance No. 99-37.
B. To the extent consistent with applicable law, for thirty (30) days after notice of
retiering or rate increases, a customer may obtain changes in service tiers at no additional
charge.
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Section 28. City Purchase of Cable System. The City may, upon the recommendation
of the City Manager and the approval of the Commission, acquire ownership of and
operate Franchisee's Cable System in accordance with Section 57-25(E)of Ordinance No.
99-37.
Section 29. Modification of Franchise. Franchisee shall file an application with the City
for any modification of its Franchise pursuant to Section 57-8 of Ordinance No. 99-37. The
application shall fully conform with each of the requirements set forth in that Section that
apply to applications for modification.
Section 30. Transfer of Franchise.
A. No transfer of a franchise shall occur without prior approval of the City, pursuant
to Section 57-24 of the Ordinance, which shall not be unreasonably withheld.
B. Franchisee shall file an application to transfer its Franchise or to transfer control
of Franchisee in full compliance with Sections 57-8 and 57-24 of Ordinance No. 99-37.
Section 31. Procedures for Requesting Approval of Transfer. In addition to the
requirements set forth in Sections 57-8 and 57-24 of Ordinance No. 99-37, the following
procedures shall be followed by Franchisee in requesting the City's consent to transfer its
Franchise or to transfer control of Franchisee.
A. At least one hundred twenty (120) calendar days prior to the contemplated
effective date of a transfer, Franchisee shall submit to the City an application for approval
of the transfer. Such application shall include the following:
1. A statement of the reason for the contemplated transfer.
2. The name, address and telephone number of the proposed transferee.
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3. A detailed statement of the corporate or other business entity organization
of the proposed transferee, including but not limited to the following:
(a) The names, business addresses, state of residence and country of
citizenship of all general partners and/or corporate Officers and directors of the proposed
transferee.
(b)The names, business addresses, state of residence and country of
citizenship of all persons and entities having, controlling, or being entitled to have or control
ten percent(10%)or more of the ownership of the proposed transferee and the respective
ownership share of each such person or entity.
(c) A detailed and complete financial statement of the proposed
transferee, prepared by a certified public accountant if audited statements were made, and
if not, by a duly authorized financial officer of the proposed transferee, for the fiscal year
immediately preceding the date of the request for transfer approval, and a letter or other
acceptable evidence in writing from a duly authorized officer of the proposed transferee
setting forth a clear and accurate description of the amount and sources of funding for the
proposal transaction and its sufficiency to provide whatever capital shall be required by the
proposed transferee to construct, install, rebuild, maintain and operate the proposed
system in the City consistent with the terms of the Franchise.
(d) A description of all previous experience of the proposed
transferee in operating Cable Systems and providing Cable Services or related or similar
services.
(e) A detailed description of the proposed plan of operation of the
proposed transferee, which shall include, but not be limited to the following:
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(i) A detailed map indicating all new areas proposed to be
served, a proposed time schedule for the installation of all equipment necessary to become
operational throughout the new areas to be served, and the projected total cost for new
construction of the System.
(ii) A statement or schedule setting forth all proposed
classifications of rates and charges to be made against Subscribers and all rates and
charges and to each of any said classifications, including installation charges, service
charges, special, extraordinary, or other charges.
4. Upon request, the proposed purchase price of the Cable System, and the terms
and conditions of the proposed transfer.
Section 32. Renewal of Franchise . The provisions of Sections 57-8, 57-9 and 57-23
of Ordinance No. 99-37 shall govern any and all proceedings to renew this Franchise. If
Franchisee decides to initiate a formal renewal process in accordance with Section 626(a)-
(g) of the Communications Act, 47 U.S.C. § 546(a)-(g), it and the City must comply with
each of the requirements in the Communications Act as well as the additional requirements
set forth in Section 57-23 of Ordinance No. 99-37.
Section 33. Rates.
A. Nothing in Ordinance No. 99-37 or this Franchise Agreement shall prohibit the
City from regulating rates for Cable Service, installation, disconnection, and equipment
rental to the full extent permitted by and consistent with State and Federal Law.
B. Franchisee further agrees that it shall not increase rates or charges for Basic
Cable service, installation, disconnection, or equipment rental without such notice as
required by applicable laws and regulations.
C. Franchisee shall at all times comply with the provisions of Section 57-20 of the
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Ordinance with respect to nondiscriminatory rates.
D. Franchisee shall not engage in predatory policy or any other anti-competitive
business practice prohibited by applicable law.
Section 34. Enforcement Remedies.
A. Liquidated Damages. Because the City may suffer damages from any violation
by Franchisee of this Agreement or of Ordinance No. 99-37, which damages may be
difficult to quantify, the City and Franchisee agree that liquidated damages shall be paid to
the City by Franchisee for violations of this Agreement or the Ordinance in accordance with
applicable provisions of Ordinance 99-37.
B. Revocation or Termination of Franchise. Franchisee's Franchise is subject to
revocation pursuant to Section 57-25 of Ordinance No. 99-37 for any of the reasons set
forth therein. In the event the City exercises its right to revoke the Franchise, the
procedures set forth in Section 57-25 of Ordinance No. 99-37 shall apply.
Section 35. Area-wide Interconnection.
A. F or purposes of carriage of the City of Ocoee access channel, the City may
request Franchisee to interconnect with any or all other franchised Cable Systems located
within the City or serving Subscribers within the City, provided that interconnection is
technically feasible and Franchisee and the other operator agree upon reasonable
interconnection arrangements, including an allocation of the costs of interconnection
between Franchisee and such other operator that is reasonable in light of the relative
benefits and burdens, including consideration of support provided for educational and
governmental access purposes. Interconnection of Systems shall permit transmission and
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reception of program material, and may be done by direct cable connection, microwave
link, satellite, or other appropriate method.
B. Upon receiving the request of the City to interconnect with Cable Systems,
Franchisee shall, where it does not own the affected System or Systems, immediately
initiate good faith negotiations with the operators of the other affected System or Systems
in order that costs for construction and operation of the interconnection link may be shared
equitably among the Systems. Franchisee shall report to the City the results of such
negotiation no later than sixty (60) days after the City's request. Where Franchisee owns
the affected System, Franchisee shall report to the City on the timing, method and cost of
interconnection within thirty (30) days of the City's request.
C. The Franchisee may be granted reasonable extensions of time to
interconnect. The City may rescind its request to interconnect upon petition by the
Franchisee to the City, if the City finds that(1)the Franchisee has negotiated in good faith
and has failed to obtain an approval from the System or Systems of the proposed
interconnection; or (2) the cost of the interconnection would be unreasonably high.
Section 36. Written Notice of Acceptance. Within sixty(60)days of the Effective Date
of the Commission resolution approving the grant of this Franchise, Franchisee shall
provide the City with written acceptance of all the terms and conditions of this Franchise
Agreement. Franchisee's failure to comply in full with this Section shall render this
Franchise Agreement and the Franchise null and void with no further action by the City,
unless the City agrees in writing to extend such period.
Section 37. No Opposition.
A. By execution of this Franchise Agreement,the Franchisee accepts the validity
of the terms and conditions of this Franchise Agreement and Ordinance No. 99-37 in their
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entirety, and the processes and procedures pursuant to which this Franchise Agreement
was entered into and the Franchise was granted.
B. In the event that after the Effective Date of this Franchise Agreement, or
Ordinance No. 99-37, pursuant to which the Franchise is granted, an official act of any
court, agency, commission, legislative body, or other authority of competent jurisdiction (1)
renders the Ordinance or the Franchise invalid in whole or in part, or (2) requires the
Franchisee or the City either to (a)perform any act which is inconsistent with any provision
of the Ordinance or this Franchise Agreement, or(b)cease performing any act required by
any provision of the Ordinance or this Franchise Agreement, the Franchisee shall promptly
notify the City of such fact. Franchisee and the City shall enter into good faith negotiations
to amend this Franchise Agreement so as to enable the Franchisee and/or the City to
perform the obligations of the Franchise and enable Franchisee to provide services for the
benefit of the City and its residents required by the Franchise to the maximum extent
consistent with said official act.
C. Nothing herein shall limit the ability of Franchisee to lobby or otherwise
exercise its First Amendment right in pursuit of a change in generally applicable federal,
state or local law.
Section 38. Execution in Counterpart. This Franchise Agreement may be executed in
counterpart.
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the
day and year first above written above.
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CITY OF OCOEE, FLORIDA
By:
S. Scott Vandergrift, Mayor
(SEAL)
ATTEST:
Jean Grafton, City Clerk
FOR USE AND RELIANCE ONLY APPROVED BY THE OCOEE CITY
BY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING HELD
APPROVED AS TO FORM AND ON , 2003, UNDER
LEGALITY this day of AGENDA ITEM NO.:
, 2003.
FOWLER & O'QUINN, P.A.
Special Counsel, City of Ocoee, Florida
By:
AGREED TO AND ACCEPTED BY
FRANCHISEE:
TELESAT ACQUISITION LIMITED
PARTNERSHIP, D/B/A ADELPHIA
CABLE COMMUNICATIONS
BY:
Name:
Title:
ATTEST:
AS TO FRANCHISEE
AS TO FRANCHISEE
Date:
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SECTION FOUR: Repeal of Conflicting Resolutions. All Resolutions or parts of
Resolutions in conflict herewith be and the same are hereby repealed to the extent of such
conflict.
SECTION FIVE: Savings. All rates, fees, charges and financial obligations
previously accrued pursuant to the ordinances and resolutions repealed by the Cable
Communications Ordinance or this Resolution shall continue to be due and owing until
paid.
SECTION SIX: Severability. If any part, section, subsection, or other portion of this
Resolution or any application thereof to any person or circumstance is declared void,
unconstitutional or invalid for any reason, such part, section, subsection, or other portion,
or the proscribed application thereof, shall be severable, and the remaining provisions of
this Resolution, and all applications thereof not having been declared void, unconstitutional
or invalid, shall remain in full force and effect. The City declares that no invalid or
prescribed provision or application was an inducement to the enactment of this Resolution,
and that it would have enacted this Resolution regardless of the invalid or prescribed
provision or application.
SECTION SEVEN: Applicable Law. This Resolution shall be construed in
accordance with the laws of the State of Florida and is subject to other applicable local,
state and federal law.
SECTION EIGHT: Effective Date. This Resolution shall take effect immediately
upon passage by the City Commission.
SECTION NINE: Charter Compliance. Pursuant to Section C-8(H)of the Charter of
the City of Ocoee, this Resolution has been approved after an advertised public hearing
preceded by at least thirty (30) days notice of the hearing and the proposed action and
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publication of such notice once a week for four (4) consecutive weeks in a newspaper of
general circulation in the City of Ocoee.
CITY OF OCOEE, FLORIDA
By:
S. Scott Vandergrift, Mayor
(SEAL)
ATTEST:
Jean Grafton, City Clerk
FOR USE AND RELIANCE ONLY APPROVED BY THE OCOEE CITY
BY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING HELD
APPROVED AS TO FORM AND ON , 2003, UNDER
LEGALITY this day of AGENDA ITEM NO.:
, 2003.
FOWLER & O'QUINN, P.A.
Special Counsel, City of Ocoee, Florida
By:
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EXHIBIT "A"
A PARCEL OF LAND LOCATED WITHIN SECTION 1,TOWNSHIP 22 SOUTH,RANGE 27
EAST AND SECTION 6, TOWNSHIP 22 SOUTH, RANGE 28 EAST AND SECTION 31,
TOWNSHIP 21 SOUTH RANGE 28 EAST AND SECTION 36, TOWNSHIP 21 SOUTH,
RANGE 27 EAST, ORANGE COUNTY, FLORIDA BEING MORE PARTICULARLY
DESCRIBED AS:
BEGIN AT THE NORTHEAST CORNER OF THE NORTHWEST 1/4 OF SECTION 6,
TOWNSHIP 22 SOUTH, RANGE 28 EAST; THENCE RUN S.00°54'44"W., ALONG THE
EAST LINE OF SAID NORTHWEST 1/4 FOR A DISTANCE OF 821.06 FEET; THENCE
DEPARTING SAID EAST LINE RUN S.28°29'20"E., FOR A DISTANCE OF 368.35 FEET
TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF COUNTY ROAD 437
(OCOEE-APOPKA ROAD), SAID POINT BEING 25.0 FEET WEST OF CENTERLINE;
THENCE RUN S.28°17'18"W., ALONG SAID WESTERLY RIGHT-OF-WAY LINE FOR A
DISTANCE OF 71.60 FEET; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY
LINE RUN N.28°29'20"W., FOR A DISTANCE OF 301.28 FEET TO A POINT ON THE
AFORESAID EAST LINE OF THE NORTHWEST 1/4 OF SECTION 6; THENCE RUN
N.13°38'09"W., FORA DISTANCE OF 474.60 FEET;THENCE RUN N.00°54'44"E.,FORA
DISTANCE OF 480.10 FEET TO A POINT ON THE NORTH LINE OF SAID NORTHWEST
1/4; THENCE RUN S.88°11'36"W., ALONG SAID NORTH LINE FOR A DISTANCE OF
1200.47 FEET TO THE NORTHEAST CORNER OF THE NORTHWEST 1/4 OF THE
NORTHWEST 1/4 OF SAID SECTION 6;THENCE RUN S.01°26'05"W.,ALONG THE EAST
LINE OF SAID NORTHWEST 1/4 OF THE NORTHWEST 1/4 FORA DISTANCE OF 793.52
FEET; THENCE RUN N.87°28'22"E., FOR A DISTANCE OF 706.20 FEET TO A POINT
LYING 41.82 FEET EAST OF THE EAST LINE OF THE SOUTHWEST 1/4 OF THE
NORTHEAST 1/4 OF THE NORTHWEST 1/4; THENCE RUN S.01°10'38"W., ALONG A
LINE LYING 41.82 FEET EAST OF AND PARALLEL TO SAID EAST LINE OF THE
SOUTHWEST 1/4 OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 FOR A
DISTANCE OF 589.91 FEET;THENCE RUN S.01°22'08"W.,ALONG A LINE LYING 41.82
FEET EAST OF THE EAST LINE OF THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4 OF
THE NORTHWEST 1/4 OF SECTION 6 FOR A DISTANCE OF 576.78 FEET; THENCE
RUN N.87°28'23"E.,FOR A DISTANCE OF 359.74 FEET TO A POINT ON THE WESTERLY
RIGHT-OF-WAY LINE OF COUNTY ROAD 437(OCOEE-APOPKA ROAD), SAID POINT
BEING 60.0 FEET WEST OF CENTERLINE;THENCE RUN S.28°17'18"W.,ALONG SAID
WESTERLY RIGHT-OF-WAY LINE FOR A DISTANCE OF 976.19 FEET TO THE POINT
OF CURVATURE OF A CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 2351.83
FEET,A CENTRAL ANGLE OF 12°04'51",A CHORD BEARING OF S.22°14'52"W.,AND A
CHORD LENGTH OF 494.97 FEET; THENCE ALONG THE ARC OF SAID CURVE, AN
ARC LENGTH OF 495.89 FEET TO A POINT IN THE CENTERLINE OF THE STATEN
BRANCH; THENCE RUN NORTHWESTERLY ALONG SAID CENTERLINE FOR A
DISTANCE OF 3800 FEET MORE OR LESS TO A POINT ON THE SOUTH LINE OF LOT
"B"OF AN UNNAMED SUBDIVISION, RECORDED IN PLAT BOOK B, PAGE 129 OF THE
PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA; THENCE RUN S.88°03'01"W.,
ALONG SAID SOUTH LINE FOR A DISTANCE OF 729.14 FEET TO THE SOUTHWEST
CORNER OF SAID LOT"B"; THENCE RUN N.45°03'50"E.,ALONG THE WEST LINE OF
LOTS "B" AND "A" OF SAID UNNAMED SUBDIVISION FOR A. DISTANCE OF 2100.33
FEET TO A POINT ON THE NORTH LINE OF THE NORTHEAST 1/4 OF SECTION 1,
TOWNSHIP 22 SOUTH, RANGE 27 EAST, SAID POINT BEING S.89°40'52"W., AND A
DISTANCE OF 330.00 FEET FROM THE NORTHEAST CORNER OF THE NORTHEAST
1/4 OF SAID SECTION 1; THENCE RUN ALONG THE WESTERLY AND NORTHERLY
LINE OF GOVERNMENT LOT 1, SECTION 36,TOWNSHIP 21 SOUTH, RANGE 27 EAST
THE FOLLOWING COURSE AND DISTANCES: N.04°43'24"E., FOR A DISTANCE OF
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963.60 FEET; THENCE RUN N.39°28'27"E., FOR A DISTANCE OF 382.80 FEET TO A
POINT ON THE WEST LINE OF THE SOUTHWEST 1/4 OF SECTION 31,TOWNSHIP 21
SOUTH, RANGE 28 EAST;THENCE RUN N.00°19'59'W.,ALONG SAID WEST LINE FOR
A DISTANCE OF 1643.36 FEET TO THE NORTHWEST CORNER OF THE SOUTHWEST
1/4 OF SAID SECTION 31; THENCE RUN N.89°53'45"E., ALONG THE NORTH LINE OF
SAID SOUTHWEST 1/4 FOR A DISTANCE OF 2356.06 FEET TO A POINT LYING
S.89°53'45"W., AND A DISTANCE OF 420.00 FEET FROM THE NORTHEAST CORNER
OF THE NORTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SAID SECTION 31; THENCE
RUN S.00°23'39"E., FOR A DISTANCE OF 210.00 FEET; THENCE RUN N.89°53'45"E.,
FOR A DISTANCE OF 210.00 FEET;THENCE RUN S.00°23'39"E., FOR A DISTANCE OF
420.00 FEET; THENCE RUN N.89°53'45"E., FOR A DISTANCE OF 210.00 FEET TO A
POINT ON THE EAST LINE OF AFORESAID NORTHEAST 1/4 OF THE SOUTHWEST 1/4
OF SECTION 31; THENCE RUN S.00°23'39"E., ALONG SAID EAST LINE FOR A
DISTANCE OF 689.50 FEET;THENCE RUN N.89°46'34"E.,ALONG A LINE LYING 120.00
FEET NORTH OF AND PARALLEL TO THE SOUTH LINE OF NORTHWEST 1/4 OF THE
SOUTHEAST 1/4 OF SAID SECTION 31 FORA DISTANCE OF 1313.25 FEET TO A POINT
ON THE EAST LINE OF SAID NORTHWEST 1/4 OF THE SOUTHEAST 1/4;THENCE RUN
S.00°10'13"E.,ALONG SAID EAST LINE FORA DISTANCE OF 38.00 FEET;THENCE RUN
N.89°48'52"E.,ALONG A LINE LYING 82.00 FEET NORTH OF AND PARALLEL TO THE
SOUTH LINE OF NORTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 31 FOR
A DISTANCE OF 89.73 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF
AFOREMENTIONED OCOEE-APOPKA ROAD(COUNTY ROAD 437),SAID POINT BEING
25.00 WEST OF CENTERLINE, SAID POINT ALSO BEING A POINT ON A CURVE
CONCAVE WESTERLY, HAVING A RADIUS OF 1884.86 FEET,A CENTRAL ANGLE OF
02°34'48", A CHORD BEARING OF S.14°45'37"W., AND A CHORD LENGTH OF 84.87
FEET; THENCE ALONG THE ARC OF SAID CURVE,AN ARC LENGTH OF 84.88 FEET
TO A POINT ON SAID SOUTH LINE OF THE NORTHEAST 1/4 OF THE SOUTHEAST 1/4;
THENCE RUN S.89°48'52"W.,ALONG SAID SOUTH LINE FOR A. DISTANCE OF 67.87
FEET TO THE SOUTHEAST CORNER OF THE NORTHWEST 1/4 OF THE SOUTHEAST
1/4 OF SAID SECTION 31; THENCE RUN S.89°48'34"W., ALONG AFORESAID SOUTH
LINE OF NORTHWEST 1/4 OF THE SOUTHEAST 1/4 FOR A DISTANCE OF 1312.78
FEET TO THE SOUTHEAST CORNER OF THE NORTHEAST 1/4 OF THE SOUTHWEST
1/4 OF SAID SECTION 31; THENCE RUN S.00°18'06"E., FOR A DISTANCE OF 1436.20
FEET TO THE POINT OF BEGINNING.
CONTAINING 16,398.406 SQUARE FEET OR 376.455 ACRES, MORE OR LESS.
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