Yolo County Municipal Code Art. 16 Assignments and Transfers

Except as provided by either Section 11- 1.1602 or 11-1.1603 of this article, no part or element of a cable communications system or any other real or personal property which is mandatorily included by Section 11-1.702 of Article 7 of this chapter within a purchase which the County or its assignee is authorized to make shall 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.

Except as provided by either said Section 11-1.1602 or 11-1.1603, a franchise issued pursuant to the provisions of this chapter, either in whole or in part, 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.

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. (§ 1, Ord. 961, eff. October 27, 1983)

Upon a written application by a grantee, the lender, and any and all signators or guarantors upon the proposed loan, the Board, in its sole discretion, from time to time, may consent by duly adopted resolution to the sale, transfer, assignment, mortgage, pledge, lease, sublease, or other encumbrance upon real or personal property mandatorily included by Section 11-1.702 of Article 7 of this chapter within a purchase which the County or its assignee is authorized to make, or upon a franchise issued pursuant to the provisions of this chapter, for the purpose of securing a loan or capital or constituting a purchase money security interest. Such information concerning the identity and background of the lender, terms of the transaction, intended expenditure of the capital, and other matters relating to the transaction shall be provided as is required by the Board or its authorized representative. If, in its sole discretion, the Board elects to approve such encumbrance or encumbrances, such approval may be granted upon such terms and conditions as the Board determines to be appropriate, including, but not limited to, the following:

(a) The purpose for which the capital to which the encumbrance relates will be utilized, including guarantees relating to the expenditure or disposition of such capital;

(b) The terms and conditions of the encumbrance instruments relating to such matters as default and the rights of the lender and successors in interest in relation thereto;

(c) The amount of the encumbrance and types of properties encumbered;

(d) The subordination of the encumbrance to the rights of the County, under the franchise, consistent with the terms and conditions of the encumbrance approved by the Board; and

(e) An agreement by any party in whose name the loan secured by the encumbrance is made or any signator or guarantor thereon to be bound by the terms, conditions, provisions, and requirements of the franchise documents, in addition to the party or parties in whose names the franchise is issued by the franchise agreement and certificate of acceptance.

The Board by resolution shall be authorized to delegate its power to consent in writing to such encumbrance for financing purposes of individual items of property described by said Section 11-1.702, subject to the limitations prescribed. (§ 1, Ord. 961, eff. October 27, 1983)

The Board, pursuant to the provisions of Section 11-1.1605 of this article, may consent by duly adopted resolution to the sale, transfer, assignment, mortgage, pledge, lease, sublease, or other transfer of right, title, or interest in property mandatorily included by Section 11-1.702 of Article 7 of this chapter within that authorized to be purchased, or in a franchise issued pursuant to the provisions of this chapter, when such transfer is for a purpose other than securing a loan of capital. Any such transfer shall be subject and subordinate to the rights of the County under the franchise documents for the franchise, and the transferee shall acknowledge in writing such subordination and agreement to comply with and be bound by the terms, conditions, provisions, and requirements of the franchise documents. (§ 1, Ord. 961, eff. October 27, 1983)

Every change, transfer, or acquisition of control of the grantee or of any owner of the grantee who is named in the ordinance offering the franchise shall render the franchise subject to cancellation by the Board, unless the Board consents thereto by duly adopted resolution pursuant to the provisions of Section 11-1.1605 of this article. As used in this section, the word “control” shall mean the acquisition of sufficient dominance to determine the operational and financial policies of the grantee, including the disposition of its assets. A rebuttable presumption that a transfer of control has occurred shall arise upon:

(a) The acquisition or accumulation by any party or association of parties of ten (10%) percent or more of the voting shares of stock of the grantee or named owner of the grantee;

(b) A change in the general partners of a grantee or named owner of the franchise; or

(c) A merger or consolidation of the grantee or named owner of such grantee. The presumption shall be subject to rebuttal only by determination by the Board. (§ 1, Ord. 961, eff. October 27, 1983)

(a) A grantee shall file written notice with the Clerk of the Board as soon as the grantee acquires knowledge of any impending transaction or other event consent to which by the Board is required by Section 11-1.1603 or 11-1.1604 of this article. The written notice shall be filed not less than ninety (90) calendar days in advance of the proposed effective date of the transaction or event for which consent is required.

(b) The notice shall state the name or names and address or addresses of the party or parties who are interested in the transaction or event and describe the details of the transaction or event. In the event of a voluntary assignment, transfer, lease, sublease, mortgage, or other encumbrance, a copy of the executed or proposed agreement shall be filed with the notice. Any written acknowledgment of subordination to the rights of the County under the franchise documents and agreement to comply with and be bound thereby required by the provisions of said Section 11-1.1603 shall be filed with the notice.

(c) The grantee shall immediately submit such additional information concerning such a transaction as the Board or other authorized representative of the County may request.

(d) The Board shall schedule a public hearing to determine whether the consent required by the provisions of said Section 11-1.1603 or 11-1.1604 will be given. Notice of the hearing shall be given in the manner prescribed by Section 11-1.406 of Article 4 of this chapter. The hearing shall be commenced not later than sixty (60) calendar days following the filing of the notice by the grantee pursuant to this section. At the conclusion of the hearing the Board shall determine whether consent will be given.

(e) In the hearing to determine whether consent will be given, the grantee (proposed transferor) shall have the burden of proving by clear and convincing evidence each of the following factors:

(1) That the reputation, responsibility, integrity, and reliability of the party or parties to whom the transfer is contemplated, and of the directors, officers, employees, and agents thereof, is equal to that of the parties obligated under the franchise documents;

(2) That the financial capability and capacity of the party or parties to whom the transfer is contemplated is equal to that of the parties obligated under the franchise documents;

(3) That the terms, conditions, or other circumstances of the transfer are not likely to result in an increase in the rates or charges for services;

(4) That at the time of the transfer the grantee is in compliance with the terms, conditions, and requirements of the franchise documents and any rules, regulations, or determinations promulgated thereunder;

(5) That the installation of the cable television system has been completed in the manner and within the times prescribed by Section 11-1.1002 of Article 10 of this chapter. In the absence of extraordinary circumstances, a transfer shall not be approved in advance of such completion; and

(6) That the transaction would not detrimentally affect the public interest.

(f) The determination by the Board as to whether to give such consent shall be vested within the sole discretion of the Board but shall be based exclusively upon the factors prescribed by subsection (e)of this section. Such consent may be given upon such express conditions relating to such factors, including the maintenance or operation of the cable communications system, services to be provided, rates and charges for services, management of the franchise business, and other requirements relating to the franchise, as the Board, in its sole discretion, may order.

(g) In the event the Board does not consent, and the grantee seeks a judicial review of the Board’s decision, the grantee agrees, by the filing of the certificate of acceptance, that the decision of the Board shall be upheld by a trial or appellate court if there is any substantial evidence supporting the decision of the Board as to any of the prescribed factors set forth in subsection (e)of this section. (§ 1, Ord. 961, eff. October 27, 1983, as amended by §§ 5 and 6, Ord. 965, eff. November 3, 1983)

Repealed*. (§ 1, Ord. 961, eff. October 27, 1983; * § 7, Ord. 965, eff. November 3, 1983)

The Board shall have the right to cancel a franchise 120 calendar days after the appointment of a receiver, or trustee, to take over and conduct the business of the grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 calendar days, or unless within such 120 calendar day period the receiver or trustee shall both:

(a) Have fully complied with all of the provisions of the franchise documents and any rules, regulations, or determinations promulgated thereunder; and

(b) Have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee acknowledges that its rights are subject and subordinate to those of the County under the franchise documents and any orders, directives, rules, or regulations issued thereunder. (§ 1, Ord. 961, eff. October 27, 1983, as amended by § 18, Ord. 999, eff. March 7, 1985)

Each grantee shall execute a document in a form determined by the County evidencing the franchise documents appropriate for recording in the office of the Clerk of the Board and a financial statement in a form determined by the County for filing pursuant to the provisions of Sections 9401 through 9403 of the Commercial Code of the State. (§ 1, Ord. 961, eff. October 27, 1983)

No grantee shall have any recourse whatsoever against the County, or its officers, agents, or employees, for any loss, costs, expenses, or damages arising out of or resulting from any provision or requirement of the franchise documents, or any rule, regulation, requirement, or directive promulgated thereunder, or because of the enforcement of any provision of the franchise documents, or any rule, regulation, requirement, or directive promulgated thereunder, or in the event any provision of the franchise documents, or any rule, regulation, requirement, or directive promulgated thereunder, is determined to be invalid. (§ 1, Ord. 961, eff. October 27, 1983)

A grantee shall not be relieved of any obligation to comply with any of the provisions of the franchise documents, or any rule, regulation, requirement, or directive promulgated thereunder, by reason of any failure of the County, or its officers, agents, or employees, to enforce prompt compliance. (§ 1, Ord. 961, eff. October 27, 1983)