A. Any Franchise granted under this Ordinance shall be a privilege to be held for the benefit of the public. Any Franchise so granted cannot, in any event, be sold, transferred, used as collateral for any loan or loans, leased or sublet, assigned or disposed of, including, but not limited to, by forced or voluntary sale, merger, consolidation, or other means, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass or vest in any person, without the prior written consent of the County, and then only under such conditions as the County may establish as permitted by law. Such consent as required by the County shall be given or denied no later than 120 days following submission of all information required by this § 5.28.080 and by FCC regulations. Prior consent shall not be required when transferring the Franchise between wholly-owned subsidiaries of the same entity.
B. A Grantee shall promptly notify, in writing, the County of any proposed change in, or transfer of, or acquisition by any other party of, Control of the Grantee or the Cable System. A rebuttable presumption that a transfer of Control has occurred shall arise upon the acquisition or transfer by any entity or group of entities of five percent or more of the beneficial ownership interest of the Grantee or the Cable System or where any transaction would require FCC consent. Every change, transfer, or acquisition of Control of the Grantee or the Cable System shall make the Franchise subject to cancellation unless and until the County shall have consented in writing thereto. For the purpose of determining whether it shall consent to such change, transfer or acquisition of Control, the County may inquire into the legal, technical and financial qualifications of the prospective controlling party, and the Grantee shall assist the County in any such inquiry.
C. In seeking the County’s consent to any change in ownership or Control, the Grantee shall have the responsibility:
1. To show, to the satisfaction of the County, whether the proposed purchaser, transferree, or assignee (the “Proposed Transferee”), which in the case of a corporation, shall include all directors and all entities having a legal or equitable interest in five percent or more of the voting stock:
a. Has ever been convicted or held liable for acts involving moral turpitude including, but not limited to, any violation of federal, state or local law or regulations, or is presently under an indictment, investigation or complaint charging such acts; or
b. Has ever had a judgement in an action for fraud, deceit or misrepresentation entered against it, her, him or them by any court of competent jurisdiction; or
c. Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a Cable System.
2. To establish, to the satisfaction of the County, the financial solvency of the Proposed Transferee by submitting all relevant current financial data for the Proposed Transferee which the Grantee was required to submit in its Franchise application and such other relevant financial data as the County may request. Financial statements shall be audited, certified and qualified by a Certified Public Accountant.
3. To establish, to the reasonable satisfaction of the County, that the financial and technical capability of the Proposed Transferee is such as shall enable it to maintain and operate the Cable System for the remaining term of the Franchise under the existing Franchise terms.
D. The parties to the sale, transfer or assignment shall make a written request to the County for its approval of a sale, transfer or delegation, including all applicable information required by FCC regulations and this section. Upon receipt of a complete written request with all application information, including any additional information specifically required by this Ordinance, the County shall have 120 calendar days to approve or deny the written request. The County may request that additional information related to the legal, financial and technical qualifications of the Proposed Transferee be provided to the County consistent with Federal law and regulation. A determination as to whether a public hearing is necessary shall be made by the County. If a public hearing is deemed necessary by the County, such hearing shall commence within 30 days of such determination, and notice of any such hearing shall be given 14 calendar days prior to the hearing by publishing notice thereof and delivering a copy of same to the Grantee by certified mail, return receipt requested. The notice shall contain the date, time and place of the hearing, and shall briefly state the substance of the action to be considered by the County. Said public hearing does not toll the 120-day period set forth hereinabove. The Board shall then decide to approve or deny the written request. The fees arising from such hearing shall be borne jointly and severally by the Grantee and the Proposed Transferree.
E. At the close of any transfer, sale or assignment of the Grantee or the Cable System, as the case maybe, the Grantee shall file with the County a copy of the deed, agreement, mortgage, lease or other written instrument evidencing such sale, transfer of ownership or control, or lease or assignment, certified and sworn to as correct by the Grantee.
F. Any financial institution having a pledge of the Franchise or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the County that it, or its designee as approved in writing by the County, shall take control and operate the Cable System in the event of a Grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation that will ensure continued service and compliance with all Franchise requirements during the term the financial institution exercises control over the System. The financial institution shall not exercise control over the System for a period exceeding one year unless extended by the County in its discretion, but during said period of time it shall have the right to petition the County to transfer the Franchise to another Grantee. Except insofar as the enforceability of this § 5.28.080F. maybe limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and further subject to applicable federal, state or local law, if the County finds that such transfer, after considering the legal, financial, character, technical and other public interest qualities of the Proposed Transferee are satisfactory, the County shall transfer and assign the right and obligations of such Franchise as in the public interest. The consent of the County to such transfer shall be given or denied no less than 120 days following the submission of all information required by this § 5.28.080 and in accordance with FCC regulations and Federal law.
G. The consent or approval of the County to any transfer by a Grantee shall not constitute a waiver or release of the rights of the County in and to the Streets, and any transfer shall, by its terms, be expressly subject to the terms and conditions of this Ordinance and the Franchise Agreement, if any.
H. In no event shall a transfer of ownership or Control be approved without the successor in interest becoming a signatory to the Franchise Agreement, if any.
I. The County may approve the transfer, or deny the transfer or conditionally approve the transfer. The conditions the County may attach to the transfer approval may include, but are not limited to: reimbursement for any and all expenses and fees incurred by or charged to the County by any engineer, planner, attorney, economist or other technical or professional expert assisting the County in evaluating the transfer request or the Proposed Transferee; remedy of any existing or historical violations of County ordinances, this Ordinance or the Franchise Agreement, if any; payment of all fees, penalties, liquidated damages or other compensation owed by the Grantee at the time of transfer approval; and a guarantee by the prospective new Grantee to abide by any and all ordinances, agreements and conditions placed upon the Franchise and System by the County.
J. Grantee hereby agrees that when the Grantee approves a transfer under this § 5.28.080, the new Grantee shall indicate acceptance of the Franchise as specified herein, including the filing of all necessary proof of insurance and certifications and letter of credit.
(Ord. O-200203-12-002, passed 3-5-2002)