Lincoln Municipal Code Art. VIII Transfer and Termination

(a) Except as otherwise expressly provided in this chapter, all, or substantially all, of the assets of the licensee's CATV system shall not be sold, transferred, assigned, mortgaged, pledged, leased, sublet or otherwise encumbered for any purpose whatsoever, nor shall title thereto, either legal or equitable, or any right or interest therein pass to or vest in any party without the prior written consent of the city. Such consent of the city shall not be unreasonably withheld.

(b) A license issued pursuant to the provisions of this chapter shall not, either in whole or in part, be sold, transferred, assigned, mortgaged, pledged, leased, sublet, or otherwise encumbered for any purpose whatsoever; nor shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest in any party, nor shall there be any transfer or change of control of the license without the prior written consent of the city. Such consent of the city shall not be unreasonably withheld.

Any such sale, transfer, assignment, mortgage, pledge, lease, sublease or other encumbrance of whatever kind or nature made in violation of the provisions of this section shall be void.

As used in this section, "transfer or change of control" shall mean the acquisition of sufficient dominance to determine the operational and financial policies of the licensee, including, but not limited to, the disposition of its assets. The word "control" as used in this section is not limited to major stockholders or financial interests, but also includes actual working control in whatever manner exercised, and includes, but is not limited to, (i) the acquisition of accumulation by any party or association of parties of ten percent or more of the voting shares or stock of the licensee or named owner of the licensee; (ii) a change in general partners of a licensee or named owner of the licensee; or (iii) a merger or consolidation of the licensee or named owner or the licensee.

(Ord. 747B §3(part), 2003)

The following material breaches of the obligation of a licensee under a license shall constitute grounds for termination of a license by the city:

(1) Any violation of Section 5.36.800 of this chapter;

(2) The failure to make any disclosure of fact within the application for the license which is required by this chapter, or the misrepresentation of such a fact in the application, or to the city in the process of applying for a license;

(3) The willful failure to make any payments required by Section 5.36.310 of this chapter; or

(4) The failure to comply with the provisions of the service activation plan submitted pursuant to Section 5.36.210 of this chapter having to do with activation of the licensee's CATV system for the entire city; or

(5) Any other act or omission by the licensee which materially violates the terms, conditions or requirements of this chapter or any order, directive, rule or regulation issued or adopted hereunder, and which is not corrected or remedied within the period specified in the written notice to the licensee of the violation.

(Ord. 747B §3(part), 2003)

The city council shall not determine that a license shall be terminated upon grounds identified by Section 5.36.810 of this chapter, until a hearing has been conducted upon the matter. Written notice of the time, date and place of the hearing shall be mailed to the licensee not later than 30 calendar days in advance of the date of commencement of the hearing. The notice shall state the reasons for the hearing, describe the basis for termination, and identify the terms, conditions or requirements with respect to which the breach has occurred.

The hearing may be conducted either by the city council or by a hearing officer appointed by the city council to conduct the hearing. Any such hearing officer shall be an attorney licensed to practice under the laws of the state of California.

The cost of providing facilities for the hearing, the compensation for the hearing officer, if any, and the per diem cost of any stenographic reporter retained to record the proceedings shall be borne by the city. The costs incurred by the parties for attorneys' fees, expert witness fees and other expenses shall be borne solely by the party incurring the costs.

(Ord. 747B §3(part), 2003)

(a) All witnesses testifying at the hearing concerning termination shall be sworn. Witnesses shall be subject to direct and cross-examination. However, formal rules of evidence applicable to the trial of civil or criminal proceedings in the trial courts of this state shall not be applicable to the hearing. The provisions of the Administrative Procedure Act, commencing at Section 11500 of the California Government Code, or any successor legislative enactment, shall not be applicable to any such hearing. The hearing may be continued from time to time.

If the hearing is conducted by a hearing officer, the officer shall, upon conclusion of the hearing, prepare a recommended decision which includes findings of fact and conclusions. The recommended decision shall be filed with the city clerk and mailed to the parties not later than 30 calendar days after conclusion of the hearing, unless the parties agree to extend such time. Upon receipt of such a recommended decision, the city council may, without a hearing except as otherwise required below, either:

(1) Adopt the recommended decision, including findings of fact and conclusions, submitted by the hearing officer;

(2) Adopt the findings of fact and conclusions contained in the recommended decision, modify the decision, and adopt the decision as so revised;

(3) Based upon the record of the hearing, modify the findings of fact, conclusions or decisions, and adopt the decision as so revised; or

(4) Reject the recommended decision and conduct a new hearing.

(b) If the hearing is conducted by the city council, upon conclusion of the hearing, the city council shall adopt a decision which includes findings of fact and conclusions.

(c) If the decision by the city council is that there are grounds for termination of the license and that the license shall be terminated, the city council shall adopt a resolution which terminates the license and includes its decision. The effective date of termination shall be such date as is prescribed by the city council within its sole discretion, in the resolution.

(d) Review of the actions of the city council under this section must be venued in the Superior Court of Placer County and are limited to the remedies provided in Code of Civil Procedure Section 1094.5 (Administrative Mandamus), subject to the limitation for filing an action within the time prescribed in Code of Civil Procedure Section 1094.6.

(Ord. 747B §3(part), 2003)

(a) No provision of this chapter shall be deemed to bar the right of the city to seek or obtain judicial relief from a violation of any provision of the license documents or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this chapter nor the exercise thereof shall be deemed to bar or otherwise limit the right of the city for such violation by the licensee, or judicial enforcement of the licensee's obligations by means of specific performance, injunction relief or mandate, or any other judicial remedy at law or in equity.

(b) No provision of this chapter shall be deemed to affect the right otherwise existing in law, if any, of a licensee to seek or obtain judicial relief from the enforcement of any provision of this chapter or any rule, regulation, requirement or directive promulgated thereunder, nor shall any provision of this chapter be construed to create such a right.

(c) As provided by federal law, an action by a licensee is limited to nonmonetary damages.

(Ord. 747B §3(part), 2003)

A licensee shall not be relieved of any obligation to comply with any of the provisions of the license or any rule, regulation, requirement or directive promulgated under this chapter by reason of any failure of the city to enforce prompt compliance.

(Ord. 747B §3(part), 2003)

Except as otherwise expressly provided in this chapter, the city shall, to the full extent permitted by applicable law, be authorized to regulate all CATV operations and services provided by a licensee for the purpose of promoting and protecting the public convenience, health, safety and welfare. The regulatory powers of the city council shall include, but not be limited to, the authority to interpret, clarify, make specific and apply the provisions of this chapter and to enact rules and regulations which impose specific duties or prohibitions for the purpose of implementing the duties, responsibilities and restrictions set forth in this chapter or such duties, responsibilities and restrictions as may be authorized to be imposed by state or federal enactments. The foregoing shall include, but not be limited to, consumer protection regulations and, to the extent now or hereafter allowed by state and federal law, rate regulation. Each licensee shall comply with all such rules and regulations.

(Ord. 747B §3(part), 2003)