§ 58-4.220. Transfer of ownership.

(1)

Board of Supervisors Approval Required. No transfer shall occur unless prior application is made by the operator to the county and the board of supervisors' prior written consent is obtained, pursuant to the operator's franchise agreement and this cable ordinance. Any such transfer without the prior written consent of the board of supervisors shall be considered to impair the county's assurance of due performance, and shall be invalid. The granting of approval for a transfer in one instance shall not render unnecessary approval any subsequent transfer.

(a)

Application. An operator shall promptly notify the county administrator of any proposed transfer. If any transfer should take place without prior notice to the county administrator, the operator shall promptly notify the county that such a transfer has occurred. At least one hundred twenty calendar days prior to the contemplated effective date of a transfer, the operator shall submit to the county administrator an application for approval of the transfer. Such an application shall provide complete information on the proposed transaction, including details of the legal, financial, technical, and other qualifications of the new controlling entity or transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the following information shall be included in the application, provided that, the operator is not required to duplicate information that it submits to the county administrator to comply with its obligations under federal or state law:

i.

All information and forms required under federal law;

ii.

All information required by this division;

iii.

Any contracts or other agreements that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein; and

iv.

Any shareholder reports or filings with the Securities and Exchange Commission that discuss the transaction.

(b)

Supplemental Information. The county shall notify an operator of any insufficiency in the information provided in the application within thirty days after receipt thereof. The failure of the county to so notify operator of such insufficiency shall result in the application being deemed complete. For the purposes of determining whether it shall consent to a transfer, the county or its agents may inquire into the qualifications of the prospective controlling entity or transferee and such other matters as the county may deem necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned as provided under this division. Notwithstanding whether the application has been deemed complete, the county may request additional information related to the proposed transaction to the extent permitted by applicable law.

(2)

Determination by County. In making a determination as to whether to grant, deny, or grant subject to conditions, an application for a transfer, the county may consider, without limitation, the legal, financial, technical and other qualifications of the proposed controlling entity or transferee to operate the cable system; whether the operator is in compliance with its franchise agreement and this division, and, if not, the proposed controlling entity transferee's commitment to cure such noncompliance; and whether operation by the proposed controlling entity or transferee or approval of the transfer would adversely affect the public health, safety, or welfare of subscribers or the public.

(3)

Transferee's Agreement. No application for a transfer of the franchise shall be granted unless the proposed controlling entity or transferee agrees in writing that it will abide by and accept all terms of its franchise agreement and this division and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous operator under its franchise agreement and this division, for all purposes, including renewal.

(4)

Approval Does Not Constitute Waiver. Approval by the county board of a transfer does not constitute a waiver or release of any of the rights of the county under a franchise agreement or this division, whether arising before or after the date of the transfer.

(5)

Exception for Intra-Company Transfers. Notwithstanding the foregoing, a transfer to an affiliate of the franchisee shall be excepted from the requirements of this section where (i) the affiliate is wholly-owned and managed by the same ultimate parent as the transferor; and (ii) the transferee affiliate:

(a)

Notifies the county within thirty days of the transfer and, at that time, provides the agreements and warranties required by this section, describes the nature of the transfer, and submits complete information describing who will have direct and indirect ownership and control of the cable system after the transfer;

(b)

Warrants that it has read, accepts and agrees to be bound by each and every term of the franchise agreement and related amendments, regulations, ordinances and resolutions then in effect;

(c)

Agrees to assume all responsibility for all liabilities, acts and omissions, known and unknown, of its predecessor franchisee(s), for all purposes, including renewal;

(d)

Agrees that the transfer shall not permit it to take any position or exercise any right which could not have been exercised by its predecessor franchisee(s);

(e)

Warrants that the transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the franchisee (the warranty to be based on comparing the burdens upon and resources that will be available to the transferee compared to its predecessors), or otherwise adversely affect the ability of the franchisee to perform;

(f)

Warrants that the transfer will not in any way adversely affect the county or subscribers;

(g)

Notifies the county that the transfer is complete within five business days of the date the transfer is completed; and

(h)

Agrees that the transfer in no way affects any evaluation of its legal, financial or technical qualifications that may occur under the franchise or applicable law after the transfer, and does not directly or indirectly authorize any additional transfers.

(6)

The county's consent to a transfer shall be required upon foreclosure or other judicial sale of all or a substantial part of the system or upon the termination of a lease covering all or a substantial part of the system, and the cable operator shall notify the county. The notification shall be deemed notice of a change in control of the cable operator, which shall require the approval of the county board of supervisors.

(7)

The board of supervisors shall approve, conditionally approve or deny a transfer following receipt of all required materials within the period required under federal law, if any, unless an extension is agreed to by the county and the cable operator. Conditions of approval by the board of supervisors may include, but are not limited to, the following: (a) resolution of any outstanding franchise violations or performance deficiencies; (b) payment of any outstanding franchise fees; (c) filing of any appropriate bonds, insurance endorsements, letters of credit or guarantees; and (d) written assumption of all obligations of the transferor by the transferee.

(8)

Within thirty days after the date of the resolution approving transfer of the franchise, or within such extended period of time as the board of supervisors in its discretion may authorize, the transferee shall file with the clerk of the board of supervisors its written acceptance of the franchise, in a form satisfactory to the county, together with all required bonds and insurance certificates, and its agreement to be bound by and to comply with and to do all things required of it by the provisions of this division and the franchise award resolution. Such acceptance and agreement shall be acknowledged by the transferee before a notary public and shall be in a form and content satisfactory to and approved by the county counsel.

(9)

Revocation Following Bankruptcy.

(a)

Notwithstanding any other provision of this division, a franchise will automatically terminate by force of law one hundred twenty calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding.

(b)

However, the franchise may be reinstated if, within the one hundred twenty day period:

(i)

The assignment, receivership or trusteeship is vacated; or

(ii)

The assignee, receiver, or trustee has fully complied with the terms and conditions of this article and the franchise and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of the franchise agreement and this code.

(10)

Revocation Upon Foreclosure.

(a)

Notwithstanding any other provision of this chapter, in the event of foreclosure or other judicial sale of any of franchisee's facilities, equipment, or property, the county may revoke a franchise after a public hearing before the board of supervisors, by serving notice upon the franchisee and the successful bidder at the sale.

(b)

The franchise will be revoked and will terminate thirty calendar days after serving such notice, unless:

(i)

The county approves the transfer of the franchise to the successful bidder; and

(ii)

The successful bidder agrees with the county to assume and be bound by the terms and conditions of the franchise and applicable law.

(11)

Failure to comply with the requirements of this section is a material breach of this division, subject to the remedies provided for herein.

(Ords. 2006-65 § 3, 93-55, 82-28).