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A. In addition to all other rights and powers retained by the city under a franchise agreement or this chapter, the city reserves the right to forfeit and terminate any franchise and all rights and privileges of the company hereunder in the event of a substantial breach of the terms and conditions of any franchise agreement or of this chapter. A substantial breach by company shall include, but shall not be limited to, the following:

1. Violation of any material provision of the franchise or this chapter, or any material rule, order, regulation or determination of the city made pursuant to the franchise or this chapter;

2. Attempt to evade any material provision of the franchise or this chapter or to practice any fraud or deceit upon the city or its subscribers or customers;

3. Failure to begin or complete system construction or system extension as provided in BMC 6.17.210;

4. Failure to provide the services promised in company’s application as incorporated herein by BMC 6.17.040;

5. Failure to restore service after 48 consecutive hours of interrupted service, except when approval of such interruption is obtained from the city; or

6. Material misrepresentation of fact in the application for or negotiation of the franchise.

B. The foregoing shall not constitute a substantial breach if the violation occurs without fault of the company or occurs as a result of circumstances beyond its control. Company shall not be excused by mere economic hardship nor by misfeasance or malfeasance of its directors, officers or employees.

C. The city may make a written demand that the company comply with any such provision, rule, order or determination under this chapter, or pursuant to the franchise. If the violation by the company continues for a period of 30 days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the city may place the issue of termination of the franchise before the hearing examiner. The city shall cause to be served upon company, at least 20 days prior to the date the hearing examiner considers the issue of termination, a written notice of intent to request such termination and the time and place of the meeting. Public notice shall be given of the hearing and issue which the hearing examiner is to consider.

D. The hearing examiner shall hear and consider the issue and shall hear any person interested therein, and shall determine whether or not any violation by the company has occurred.

E. The hearing examiner shall issue an order supported by findings of fact, conclusions of law determining whether the company has violated the terms of its franchise or provisions of this chapter and whether any such violation was the fault of company and within its control, and if the hearing examiner finds that such violation occurred, the hearing examiner shall declare that the franchise of the company shall be forfeited and terminated unless there is compliance within such period as the hearing examiner may fix, such period not to be less than 90 days, provided no opportunity for compliance need be granted upon a finding of fraud or misrepresentation by the company.

F. The issue of forfeiture and termination shall be scheduled for hearing before the hearing examiner at the expiration of the time set by the hearing examiner for compliance. The hearing examiner may then issue an order terminating the franchise forthwith upon finding that company has failed to achieve compliance, or may further extend the compliance period, upon demonstration that granting an extension is in the public interest. [Ord. 2002-10-069 § 10; Ord. 1998-09-075; Ord. 9121 § 20, 1982; Ord. 8999 § 43, 1981].