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(a) City Approval Required. A Franchise is a privilege that is in the public trust and personal and specific to the Grantee and is granted in consideration of the unique knowledge, skill and expertise Possessed by the Grantee. The City and other Subscribers shall not be required to accept performance of a Franchise from a third party who has not submitted its qualifications for review and approval by the Board pursuant to this Section. Except as otherwise expressly permitted herein pursuant to subsection (e) below, a Grantee shall not complete a Transfer unless a Proposal is submitted to the Board pursuant to Section 11.10 above ("Transfer Proposal") and the Board's approval is obtained by ordinance or resolution, as appropriate, and only then upon such terms and conditions as the Board deems necessary and proper, in its sole discretion, after conducting a review pursuant to Section 11.13(g) and Section 11.13(h) above. An Applicant, as defined in subsection (d) below, shall be given notice of its opportunity to be heard at a Board proceeding to consider the Transfer Proposal. An Transfer without the approval of the Board shall be considered to impair the City's assurance of due performance, and may, at City's sole option, be null and void and constitute a Material Breach of the Franchise. Notwithstanding anything to the contrary in this Chapter or a Franchise, until expressly determined otherwise by the Board, Facilities constructed, installed, operating, or being used to provide Services pursuant to a Franchise shall remain subject to the Franchise regardless of any Transfer, whether or not City approval was obtained.
(b) Subsequent Transfers. The Board's approval of a Transfer Proposal in one instance shall not render unnecessary approval of any subsequent Transfer.
(c) No Waiver. The City's approval of a Transfer Proposal does not constitute a waiver or release of any of the rights of the City against the Transferring Grantee under this Chapter, a Franchise, or Applicable Law, whether such rights arose before or after the date of approval of the Transfer Proposal.
(d) Proposal Submission. For purposes of this Section, the Applicant shall be the proposed Transferee. At least one hundred twenty (120) calendar days prior to the contemplated effective date of a Transfer, the Applicant shall submit a Transfer Proposal to the Board for approval of the Transfer.
(e) Exceptions.
(1) Affiliate Transfers. Neither a Transfer Proposal or Board approval shall be required for a Transfer to an Affiliate of the Grantee ("Affiliate Transfer") where the Grantee and the proposed Transferee (the "Transfer Parties") meet the following requirements:
(i) The Transfer Parties provide all instruments and legal documents effecting the Affiliate Transfer, a description of the nature of the Affiliate Transfer, complete information describing who will have direct and indirect ownership and Control of the Franchise and the Facilities after the Affiliate Transfer within one hundred and twenty (120) calendar days of the effective date of the Affiliate Transfer, and any additional information within ten (10) City business days of the Department's request, and
(ii) The Transfer Parties meet the following conditions and provide the following assurances, guarantees, and warranties to the City in writing, expressly for the benefit of the City, in a form acceptable to the Department and the City Attorney, and no later ninety (90) calendar days before the effective date of the Affiliate Transfer, and:
(a) The Grantee is not in Material Breach of the Franchise, this Code or a UCP and there have been no more than two minor breaches of the Franchise, this Code, or a UCP as determined pursuant to Article VIII of this Chapter, in the prior twelve (12) month period; and
(b) The proposed Transferee (1) has demonstrated to the City's reasonable satisfaction that it is reputable and capable, financially and otherwise, of performing each of the Grantee's obligations under the Franchise and any other documents to be assigned; and (2) is not forbidden by Applicable Law from transacting business or entering into contracts with the City; and (3) is subject to the jurisdiction of the courts of the State of California; and (4) is not in default with respect to any obligations that it has to City, and
(c) Any Person guaranteeing the performance of the Grantee under the Franchise (or any other Person approved by the Department and the City Attorney) guarantees in a substantially similar manner the performance of the proposed Transferee; and
(d) The Transfer Parties warrant that the Transfer is being made for a legitimate business purpose and not to deprive the City of the benefits of the Franchise, any other documents proposed to be Transferred, or other Applicable Law; and
(e) The proposed Transferee warrants that it has read, accepts, and agrees to be bound by each and every term of the Franchise, any other documents to be Transferred, and other Applicable Law then in effect; and
(f) The proposed Transferee agrees to assume all responsibility for all liabilities, acts, and omissions known and unknown of each of its predecessor Grantees for all purposes, including renewal of the Franchise, and to cure all defects; and
(g) The proposed Transferee agrees that the Transfer will not permit it to take any position or exercise any right which could not have been exercised by the Grantee; and
(h) The Transfer Parties warrant that the Transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the proposed Transferee (the warranty to be based upon comparing the burdens upon and resources that will be available to the proposed Transferee compared to the Grantee), or otherwise adversely affect the ability of the proposed Transferee to perform its commitments under the Franchise; and
(i) The Transfer Parties warrant that the Transfer will not in any manner adversely affect the City or Subscribers (including by increasing rates); and
(j) The proposed Transferee agrees that the Transfer does not affect any evaluation of its legal, financial, or technical qualifications that may arise under the Franchise or other Applicable Law after the Transfer, and does not directly or indirectly authorize any additional Transfers.
(iii) The Transfer Parties notify the City within thirty (30) City business days that the Transfer is complete and provide copies to the Department of all fully executed documents reflecting the Transfer.
(2) Transfer Proposal May Be Required. If the Transfer Parties are unable to provide information and assurances in a form acceptable to the Department and the City Attorney as provided in Subsection (e)(1)(ii) above, the Department, in its sole discretion, may require the immediate submission of a Transfer Proposal to the Board for its approval pursuant to this Section.
(Added by Ord. 58-00, File No. 000198, App. 4/7/2000)
(a) Initial Proceeding. Notwithstanding the provisions of Section 11.10 above, within six (6) months of the City's receipt of a written Cable System Franchise renewal notice pursuant to 47 U.S.C. Section 546(a), or upon the Director's own motion, the Director of the Department shall initiate a proceeding pursuant to that Section to identify the City's future cable-related community needs and interests and to review the performance of the Cable System Operator under its current Franchise.
(b) Request for Proposal. Based upon the proceeding initiated pursuant to subsection (a) above, and such other investigation as the Department deems necessary, the Department shall prepare a report for the Board proposing findings regarding the future cable-related community needs and interests of the City and the past performance of the Operator of the Cable System Franchise. The report shall include a proposed request for proposal to renew the Cable System Franchise ("Request For Renewal Proposal") pursuant to terms and conditions consistent with the report's proposed findings. The Director shall serve the renewal Applicant with a copy of the report and proposed Request For Renewal Proposal concurrently with the Director's submission to the Board. The Board may adopt the findings of the report by resolution and urge the Director to issue the Request For Renewal Proposal. Issuance of such a Request For Renewal Proposal shall constitute closing of the proceeding.
(c) Department Recommendation Regarding a Renewal Proposal. The Request For Renewal Proposal shall, among other things, establish the soonest date and the latest date on which the Department will accept a Renewal Proposal. The Director of the Department shall provide prompt public notice of receipt of a Renewal Proposal and shall evaluate the Renewal Proposal and forward a recommendation to the Board stating either: (1) that the Franchise should be renewed pursuant to the terms of the Renewal Proposal, or (2) that, as a preliminary matter, the Franchise should not be renewed, and the City should initiate an administrative proceeding pursuant to 47 U.S.C. Section 546(c) to evaluate the issues set forth in that Section. The Director's recommendation shall include a proposed ordinance or resolution consistent with the Director's recommendation. The Director shall serve the renewal Applicant with a copy of the recommendation and proposed ordinance or resolution concurrently with the Director's submission to the Board.
(d) Board Action on the Director's Recommendation. The Board shall take action within the time required by 47 U.S.C. Section 546(c) by adopting either: (1) an ordinance to renew the Franchise pursuant to the terms set forth in the Renewal Proposal; or (2) a resolution making a Preliminary assessment that the Franchise should not be renewed on the terms set forth in the Renewal Proposal and urging the Director of the Department to commence an administrative proceeding pursuant to 47 U.S.C. Section 546(c).
(e) Administrative Proceeding. In the event the Board adopts a resolution making a Preliminary assessment that the Franchise should not be renewed pending the results of an administrative proceeding pursuant to 47 U.S.C. Section 546(c), the Director of the Department shall designate a hearing officer(s) and the Department shall administer the hearing consistent with the requirements of that Section. Within forty-five (45) City business days of the conclusion of the hearing, the hearing officer(s) shall issue a proposed recommendation to grant or deny the Renewal Proposal. The proposed recommendation shall be based upon the record of the proceeding and include a summary of the issues, the evidence presented, and findings and conclusions. It shall also include a proposed ordinance or resolution for the Board's consideration. Copies of the proposed recommendation shall be served upon the parties to the hearing by certified mail. A notice that a copy of the proposed recommendation is available for inspection during normal business hours shall be posted at the office of the Director of the Department. The proposed recommendation shall be a recommendation to the Director, and the Director shall adopt, modify, or deny such recommendation and prepare a final recommendation on the matter based upon the record of the proceeding. Such final recommendation shall be served upon the parties to the hearing and posted in the same manner as provided for the proposed recommendation herein.
(f) Final Board Action. The final recommendation of the Director shall be a recommendation to the Board, and the Board shall act to adopt, modify, or deny such recommendation and issue a final decision on the matter based upon the record of the proceeding. A decision to deny the Renewal Proposal shall be by resolution. A decision to grant the Renewal Proposal shall be by ordinance. The Board's decision on the Renewal Proposal shall state the reasons therefor and shall be final and conclusive.
(g) Suspension of Hearing. Nothing herein shall preclude the Director from suspending the proceeding in the event the Department and the Cable System Operator reach agreement regarding proposed renewal of the Franchise. In the event the Board does not approve such proposal, the Director may resume the proceeding. Board approval of the proposal shall constitute termination of the proceeding.
(Added by Ord. 58-00, File No. 000198, App. 4/7/2000)
(a) Revocation for Failure to Comply with the Franchise or this Chapter. In the event of a Material Breach of the Franchise or this Chapter the City may Revoke a Grantee's Franchise.
(b) Revocation Recommendation. In the event the Department believes that a Grantee has committed a Material Breach of its Franchise, the Department shall notify the Grantee in writing that the Grantee must comply with any requirement with which the Grantee has failed to comply and pay any fines or damages owed as a result of the Material Breach. The Grantee shall have twenty (20) City business days to respond to the Department's notice. Thereafter, the Department may recommend Revocation of the Franchise to the Board if it concludes that the Grantee has committed a Material Breach and
(1) The Material Breach is incurable (as in the case with fraud or attempted fraud); or
(2) The Grantee has, after twenty (20) City business days of the written notice from the Department:
(i) Failed to comply with the requirement; or
(ii) If compliance will take more than twenty (20) City business days, even with the exercise of due diligence, failed to agree to a compliance plan acceptable to the City.
(c) Board Proceeding Regarding Revocation.
(1) The Board may consider the Department's Revocation recommendation and may hear any Persons interested therein, and may determine whether (i) Grantee committed a Material Breach; and (ii) if Grantee committed a Material Breach, whether such Material Breach was or should be excused. The Grantee shall be noticed and have an opportunity to be heard at a Board proceeding to consider the Department's Revocation recommendation.
(2) If the Board determines Grantee has committed a Material Breach, but such Material Breach is excused, the Board may, by motion, direct the Grantee to comply with the City's requirements within such time, and upon such terms and conditions, as the Board deems reasonable. If the Board determines Grantee has committed a Material Breach and such Material Breach is not excused, the Board may, by ordinance, Revoke Grantee's Franchise. Nothing herein precludes the Board from setting additional time for Grantee to cure a Material Breach in lieu of Revocation.
(Added by Ord. 58-00, File No. 000198, App. 4/7/2000)
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