Placerville Municipal Code Ch. 18 City Fiber Utility

The purpose of this Chapter is to establish a Municipal Fiber Utility to advance the following goals:

(A) Provide broadband access to meet the needs of:

• 1. City departments
• 2. Public safety organizations
• 3. Other publicly owned and operated facilities
• 4. Educational facilities
• 5. Hospitals and other Medical Providers
• 6. Community anchor institutions
• 7. Businesses
• 8. Residents

(B) Improve the affordability of internet access in and around the utility’s service area.

(C) Increase competition among retail broadband service providers by providing open access to the Fiber Utility, as defined herein.

(D) Create infrastructure that will be able to provide long-term speeds and reliability.

(E) Address existing gaps in digital access and digital equity thereby enabling greater participation in key aspects of present and future areas of society.

(F) Protect the economic vitality of the City by providing the broadband transport service and fiber facilities leasing required by broadband service providers.

(G) Reduce the cost of maintaining the sidewalk, pavement and public facilities located within the public right-of-way by minimizing the number of pavement cuts and dislocation of other public facilities necessitated by the construction or installation of fiber optic facilities. (Ord. 1709, 6-28-2022)

As used in this chapter, the following terms shall have the meaning set forth below, unless the context clearly dictates a different meaning:

The City shall have exclusive and complete ownership, control and management of the Fiber Utility within all Demarcation Points, which shall include the device or interface provided for interconnection. The City may make such rules, policies, and regulations as are necessary for the operation of the Fiber Utility both inside and outside the City limits. (Ord. 1709, 6-28-2022)

The City shall have no obligation to provide access to any Provider or Subscriber that cannot or is unwilling to comply with the provisions of this Chapter or any terms and conditions of Service provided to the Provider or Subscriber by the City, or because of the City’s limitations or resources. (Ord. 1709, 6-28-2022)

The provisions of this chapter shall apply only to the Fiber Utility. Nothing herein shall be construed or deemed to regulate the delivery of communications or data services over or across lines, facilities, or equipment owned by a private communications provider, or which may be located in the public right-of-way pursuant to a franchise, lease, or other license or privilege granted by the City. (Ord. 1709, 6-28-2022)

All rights to Access and any rights or privileges arising under the provisions of this Chapter shall not be transferred from Customer or Provider to any person or entity without the express written approval of the City Manager. (Ord. 1709, 6-28-2022)

Fiber Utility Access provided by the City shall be billed to the Customer in accordance with a schedule of rates as established by the recommendation of the City Manager and approved by City Council through resolution. (Ord. 1709, 6-28-2022)

(A) Fiber Utility Access may be supplied under a given rate schedule provided that the Fiber Utility has the ability to meet the requirements of the rate schedule applicable thereto. The City shall not be obligated to construct extensions or install the additional facilities necessary to meet a Customer’s needs except as explicitly authorized by the City Manager. Any such authorization shall include both of the following findings:

1. There is sufficient funding to construct or install the additional facilities.

2. The construction or installation of the additional facilities for this Customer’s needs advances one or more of the purposes of this Chapter.

(B) Nevertheless, nothing herein shall be construed or deemed to prevent the City from entering into a separate contract with any Customer solely for the purpose of obtaining assistance in constructing or installing additional plant for the benefit of said Customer. Any such agreement must be authorized by the City Council. (Ord. 1709, 6-28-2022)

The City may condition providing transport or Plant upon the Customer’s dedication or conveyance to the City of a utility easement for the installation, operation and maintenance of the City’s fiber system, over, across and upon property owned or controlled by the Customer or the Customer’s landlord. Customer utility easement shall permit access thereto by authorized representatives of the City at all reasonable hours or at any time during an emergency. By acceptance of or submission of an application for fiber optic access, the Customer shall be deemed to waive any claim for damages to the Customer’s property or equipment located within such utility easement, arising from the operation or maintenance of the fiber utility therein. Such acceptance or application shall also be deemed to constitute a waiver of any claim for damages arising from a taking or any severance damages with respect to a Customer’s underlying fee simple interest. (Ord. 1709, 6-28-2022)

The City shall not be liable for any loss, injury or damage of any kind, including but not limited to consequential, special and punitive damages, resulting from the interruption, reduction, loss or restoration of access from any cause, including without limitation any loss by fire, flood, accident, casualty, sabotage, terrorist act, strike, labor slow-down, act of God or the public enemy or failure or inadequacy of the Fiber Utility. The City disclaims any express or implied warranty of merchantability or fitness for a particular purpose and the delivery of access to any Customer shall not be construed as or deemed to be the delivery of goods under the California Uniform Commercial Code. By acceptance of transport or plant, the Customer agrees to, and shall be deemed to, waive any and all claims for damage or loss to the Customer’s lines, facilities, or communications equipment caused by any act or omission of the City, however, nothing herein shall be deemed or construed as a waiver of any claim for damage or liability arising out of the gross negligence or malicious act of the City, or its agents. (Ord. 1709, 6-28-2022)

For the purpose of making necessary repairs, upgrades or changes to its Fiber Utility, or to avoid damage to property or to persons, the City may, without prior notice to the Customer, suspend access for such periods as may be reasonably necessary to make such repairs, upgrades or changes and the City shall not be liable for damage of any kind, direct or indirect, as a result of such discontinuance of access. (Ord. 1709, 6-28-2022)

(A) Upon the sole discretion of the City Manager or his/her designee, the City may take any of the following actions:

1. The City may refuse to supply Access where there is a possibility that the delivery of such may impair or disrupt any other Customers, or which may disrupt the operation of the Fiber Utility.

2. The City may discontinue or disconnect Access for a Customer if the Customer, by their use of the Fiber Utility, is impairing any other Customer’s use of the Fiber Utility.

3. The City may, without prior notice, suspend or disconnect any Customer if it is determined that Customer is using the Fiber Utility for the purposes of delivering any virus, spam, spyware, denial of service attacks, or any other illegal or malicious purpose which has the effect of or is intended to impair or impede the operation of the Fiber Utility, the internet, or any public or private computer or computer network connected thereto or for the purpose of obtaining illegal or unauthorized access to other computers or networks connected to the Fiber Utility. (Ord. 1709, 6-28-2022)

The Customer is solely responsible for the selection, installation and maintenance of all equipment and wiring on the Customer side of the Demarcation Point. The Customer shall install and maintain suitable protective devices and equipment to protect life and property from harm or injury and the City assumes no duty to warn or otherwise assist the Customer in the selection or use of such protective devices. (Ord. 1709, 6-28-2022)

(A) No person shall connect to, adjust, tamper with or make any alteration or addition to the Fiber Utility, without having first obtained the written authorization of the City Manager or his/her designee.

(B) Notwithstanding any other provision in this Chapter, any person who willfully or maliciously causes damage to, interference with or obstruction to the efficient operation of the Fiber Utility, shall be guilty of a misdemeanor.

1. Any person who causes such damage shall, in addition to any criminal fines or penalties, be liable to the City for any reasonable damages which may be proximately caused by such damage or interference. Such amounts may be included upon the Customer’s regular monthly billing statement for utility service and upon the Customer’s failure or refusal to pay such charges, Fiber Utility access may be terminated in accordance with the procedures set forth in Section 7-18-17. (Ord. 1709, 6-28-2022)

Any person who makes any connection to or installs or constructs any facility or equipment with the specific intent of obtaining Access from or making use of the Fiber Utility, without paying for such Access or without paying the fees and charges established by the provisions set forth in this chapter shall be guilty of a misdemeanor. (Ord. 1709, 6-28-2022)

Except where a violation is deemed a misdemeanor, any violation of the provisions of this chapter shall be an infraction punishable by a fine in an amount established by Section 1-4-5 of the Placerville Municipal Code. (Ord. 1709, 6-28-2022)

(A) In addition to any other penalty described herein, the City may discontinue, disconnect, or terminate a Customer’s Service and/or Access to the Fiber Utility if, pursuant to the applicable provision, it is determined that such Customer violated a provision of this Chapter.

(B) A Customer’s Service may be discontinued, disconnected or terminated pursuant to this Section with or without written notice.

(Ord. 1709, 6-28-2022)