HomeMy WebLinkAboutAgenda - 06-21-2022; 6-c - Amendments to the Network Development Agreement for Broadband Deployment with North State Communications Advanced Services 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 21, 2022
Action Agenda
Item No. 6-c
SUBJECT: Amendments to the Network Development Agreement for Broadband
Deployment with North State Communications Advanced Services
DEPARTMENT: County Manager
ATTACHMENT(S): INFORMATION CONTACT:
Amended Contract with North State Travis Myren, 919-245-2308
Communications Advanced Services, LLC James Bryan, 919-245-2319
A. Amended Service Area Map
B. Amended Mutually Agreed Service
Sites (188 Page Document Only
Available Electronically at:
www.orangecountync.gov/servicesites)
C. Amended Construction Plan and
Timeline
PURPOSE: To approve amendments to the Network Development Agreement with North State
Communications Advanced Services, LLC to deploy broadband service in unserved locations in
Orange County.
BACKGROUND: On April 26, 2022, the Board of Commissioners authorized the County Manager
to execute a Network Development Agreement with North State Communications to deploy a fiber
optic broadband network to unserved locations in Orange County. Unserved locations are defined
by State law as locations that do not have access to internet service that provides speeds of 25
megabits per second (mbps) download and 3 mbps upload. The statutory authority under which
the County is authorized to make grants for broadband deployment only allows those grant funds
to be used to serve unserved locations.
During the meeting at which the agreement was originally considered, an attorney representing
Spectrum Communications asserted that many of the addresses in the proposed service area
were served by Spectrum and, therefore, were not unserved. If that were the case, County grant
funds could not be used to fund connections to those addresses. County staff delayed the final
execution of the agreement with North State pending resolution of this dispute with Spectrum
Communications.
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Due to the nature of the telecommunications industry, identifying specific unserved addresses is
difficult. There is no official map that identifies specific locations or addresses that are defined as
served or unserved. The Federal Communication Commission (FCC) maps, for example, are
imprecise since they only provide information by census block, not specific addresses within that
census block. North State compiled a list of addresses that the company believed were unserved
based on their engineering and mapping. The only way to verify addresses that are served by
Spectrum Communications is to individually search for them on the Spectrum website.
Spectrum Communications initially claimed that the company provided service to over 4,700
addresses that were intended to be funded with County grant funds. Through a verification
process that included staff from the County, North State Communications, and Spectrum
Communications, the list of served addresses was refined to 3,528. While the number of
addresses that are funded with County grant funds has decreased, the total number of addresses
served, linear miles of fiber installed, and the cost to install the fiber is not impacted. The disputed
addresses are in locations that are either along the fiber route that will be needed to reach the
unserved addresses or are in more densely populated areas which North State has a strong
economic interest to serve.
The proposed contract amendments refine the list of addresses funded with County grant dollars
and address concerns raised since the original contract was considered.
1. Refining addresses funded with the County grant
The proposed contract amendment revises the number of addresses funded with County
grant dollars from 9,898 to no less than 6,370 with corresponding changes to the address
list in Attachment B. The amendment also generally prohibits County grant funds from
being to be used to provide service to already served locations.
2. Expansion of the service area
The original service area defined in the contract only included those areas where the
County had identified unserved households. The North State construction plan extends
beyond that area. The contract amendment proposes to expand the service area to include
the entirety of North State's planned construction. This means that North State will be
obligated to serve any unserved address in the expanded service area and that those
addresses will be automatically added to the list of addresses in Attachment B.
The only limitation to this obligation outside of the original grant area is if the cost of the
fiber extension would be double the average cost of passing homes in the service area.
The average cost to pass each address is $3,700, so twice the average cost would be
$7,400. This cost is equivalent to an installation of greater than a mile to serve less than
eight homes.
3. Price and network performance protections expanded to the entire service area.
The original contract included a mandatory low cost service option, limitations on price
increases, and performance guarantees for network reliability and performance for
addresses funded through the agreement. The contract amendment extends these
protections to any address in the service area.
4. Low cost service offering modified to remove cost barriers
The original contract required a low cost service to be available to subscribers in Orange
County to help remove barriers to access. That original offering was 200 mbps symmetrical
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service for $40 per month. The contract amendment proposes to change the low cost
option to 100 mbps symmetrical service for $30 per month which is equivalent to the
discount offered through the FCC's Affordable Connectivity Plan. Aligning these amounts
will remove all cost barriers associated with paying for monthly service.
5. Payment schedule revised to reflect new address list
The original agreement required the County to pay up to $10 million in American Rescue
Plan Act (ARPA) funds as a grant to North State in three installments. The number of
connections that would have to be enabled to receive the final installment has been revised
to comport with the new list of addresses, changing from 6,898 to 3,396.
6. Construction schedule revised to reflect new address list
Based on the location of the households contained in the new list of addresses, the contract
amendment delays the completion of phase 1 of the project from April of 2023 to June of
2023. The sequencing of the remaining phases is consistent with the initial plan. The
number of homes served during each phase has also been changed to reflect the change
in the number of locations funded with County grant funds.
Phase Homes Added Date
1 1,000 June 2023
2 1,000 September 2023
3 1,000 December 2023
4 1,000 March 2024
5 1,000 June 2024
6 1,370 September 2024
TOTAL 6,370
7. Adjacent addresses not included in the expanded service area
Some addresses in Orange County that are adjacent to the service area were not included
due to engineering constraints. Although not part of the revised contract language, the
County and North State have agreed to revisit those addresses once final engineering is
completed in December 2022. At that time, North State will have finalized the specific fiber
routes and will be able to confidently advise the County on what would be necessary to
extend service to unserved households in these limited areas.
FINANCIAL IMPACT: The cost to execute the Network Development Agreement is not proposed
to change. Prior Board action allocated up to $10 million in American Rescue Plan Act funds as
a grant to North State Communications Advanced Services, LLC to construct, operate, and
maintain a fiber to the premises network in unserved and underserved parts of Orange County.
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goals are applicable
to this item:
• GOAL: FOSTER A COMMUNITY CULTURE THAT REJECTS OPPRESSION AND
INEQUITY
The fair treatment and meaningful involvement of all people regardless of race or color;
religious or philosophical beliefs; sex, gender or sexual orientation; national origin or ethnic
background; age; military service; disability; and familial, residential or economic status.
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• GOAL: ENSURE ECONOMIC SELF-SUFFICIENCY
The creation and preservation of infrastructure, policies, programs and funding necessary
for residents to provide shelter, food, clothing and medical care for themselves and their
dependents.
• GOAL: ENABLE FULL CIVIC PARTICIPATION
Ensure that Orange County residents are able to engage government through voting and
volunteering by eliminating disparities in participation and barriers to participation.
ENVIRONMENTAL IMPACT: The following Orange County Environmental Responsibility Goal
impacts are associated with this item:
• CLEAN OR AVOIDED TRANSPORTATION
Implement programs that monitor and improve local and regional air quality by: 1)
promoting public transportation options; 2) decreasing dependence on single-occupancy
vehicles, and 3) otherwise minimizing the need for travel.
• RESULTANT IMPACT ON NATURAL RESOURCES AND AIR QUALITY
Assess and where possible mitigate adverse impacts created to the natural resources of
the site and adjoining area. Minimize production of greenhouse gases.
RECOMMENDATION(S): The Manager recommends that the Board approve and authorize the
County Manager to sign the amended Network Development Agreement and any amendments
that do not exceed the contract amount with North State Communications Advanced Services,
LLC to construct, operate, and maintain a fiber to the premises network in unserved parts of
Orange County.
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[Departmental Use Only]
TITLE Broadband Acceleration
FY 2021-22
NORTH CAROLINA
NETWORK DEVELOPMENT AGREEMENT
ORANGE COUNTY
THIS NETWORK DEVELOPMENT AGREEMENT(hereinafter called"Agreement"), made as of the
26th day of April 2022, by and between North State Communications Advanced Services, LLC (hereinafter
called"North State"or the"Provider")and Orange County,a political subdivision of the State of North Carolina
(hereinafter called the "County"or"Orange County.").
WITNESSETH:
1. The County is a recipient of a federal award under the Coronavirus Local Fiscal Recovery Fund,created
under section 603 of the Social Security Act (42 U.S.C. § 803), as amended by Section 9901(a) of the
American Rescue Plan Act of 2021 (Pub. L.No. 117-2) ("ARPA Award"or"Award").
2. The County desires to utilize ARPA Award funds in part to support the development of necessary
broadband infrastructure within the County.
3. Provider, a regional provider of communications networks and services, responded to a September 13,
2021 (with an Addendum on October 11,2021)Request for Proposal issued by the County,in which the
County sought to identify broadband solutions to serve unserved and underserved areas in the County
("RFP").
4. After considering all responses to the RFP, Provider's proposal was selected as the winning proposal.
5. The County desires to use some of its Award funds to make a subaward to Provider for broadband
network development in Orange County.
NOW, THEREFORE,the Provider and the County, for the consideration herein named, agree as follows:
1. CONTRACT DOCUMENTS; PRIORITY
The Contract Documents consist of this Agreement and all Attachments thereto; the Orange County
Request for Proposals (RFP) #367-OC 5330: Broadband Service to Unserved Areas and addenda thereto; the
ARPA Subrecipient Agreement; and the Provider's Proposal in response to the RFP. North State agrees to
execute an ARPA Subrecipient Agreement substantially in the form of Attachment D. The Contract Documents
form the Contract. In the event of any inconsistency between or among the Contract Documents, the Contract
Documents shall be interpreted in the following order of priority:
a. This Agreement
b. Orange County Broadband Request for Proposals and addenda thereto.
c. The Service Area Map (Attachment A) and its associated electronic data including GIS address
points in KMZ format(incorporated by reference),hereinafter collectively called"Service Area
Map."
d. Mutually Agreed Service Sites (Attachment B)
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e. ARPA Sub-recipient Agreement
f. Provider Proposal in response to the RFP.
g. Customer Service Quality Metrics
h. County XPON Sites
2. TABLE OF EXHIBITS MADE PART OF THIS AGREEMENT
Attachment A-- Service Area Map
Attachment B—Mutually Agreed Service Sites
Attachment C—Construction Plan and Timeline
Attachment D—ARPA Subrecipient Agreement
Attachment E—Customer service quality metrics
Attachment F—County XPON Sites
3. DEFINITIONS
"Agreement" shall mean this Agreement, any and all Exhibits and Attachments thereto, and any Addenda to
which the Parties may agree from time to time.
"Authorities"means the United States Treasury Department, and any other governmental entities or authorities
having jurisdiction over the County and Subrecipients concerning the Award.
"Applicable Standards"means all applicable rules and regulations and engineering and safety standards
governing the installation, maintenance, and operation of Network facilities and the performance of all work in
public and private rights of way, and includes the most current versions of National Electric Safety Code
("NESC"); the National Electrical Code ("NEC"); the regulations of the Federal Communications Commission
("FCC"),the Occupational Safety and Health Administration("OSHA"), and other pertinent federal agencies;
provisions of a city's, a county's, or State of North Carolina's building, construction, zoning, and safety codes;
and rules and regulations relating to permits for occupation of public rights of way; each of which is
incorporated by reference in to this Agreement, and/or other reasonable safety, engineering, architectural or
aesthetic requirements of a local, state, or federal authority having jurisdiction over such facilities.
"Authorizations"means the permissions a Party must have to perform its obligations under this Agreement,
which may include franchises; licenses;permits; zoning approvals; variances; exemptions; grants of authority
to use public rights of way or facilities; access rights to private property and public rights of way; agreements
to make attachments to poles, ducts, conduits, towers,buildings,rooftops,manholes, and the like; and any
other approval of a governmental authority or third persons with respect to (i)the construction, installation,
repair, maintenance, operation, or use of tangible or intangible public or private property, as the case may be,
or(ii) any requirement by a governmental authority for the engagement in a business or enterprise.
"Authorization Fees"means all permit, right-of-way, easement,pole attachment, franchise, encroachment, or
license fee, charge or assessment of any kind applicable to the placement and maintenance of the Network
appurtenances,whether imposed by a governmental authority or a private entity.
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"Broadband Internet Access Service", consistent with the Federal Communications Commission definition in
47 C.F.R§ 8.1(b), is a mass-market retail service that provides the capability to transmit data to and receive
data from all or substantially all internet endpoints. This is distinct from and does not-include enterprise-grade
dedicated internet services.
"Communication Services"means the services to be provided to Customers by Provider using the Network.
"Customer"means a residence,business, or any other entity that lawfully receives Communication Services
via the Network.
"Customer Premises Equipment"means terminal and associated equipment and inside wiring located at a
Customer premises that is necessary for the receipt of Communication Services.
"Fiber-to-the-Premises" (FTTP)means a fiber optic cable delivery medium in which optical fibers are run
directly to a Customer premises.
"Final Rule"means the U.S. Treasury Department Final Rule relating to the use of Coronavirus State and
Local Fiscal Recovery Funds, initially published January 6, 2022 and effective on April 1,2022,proposing
rules at 31 CFR Part 35, Subpart A.
"Location"means the site of a potential or current Customer found in the Mutually Agreed Service Sites
(Attachment B).
"Maintenance"means work that must be performed upon or to the Network to ensure the physical integrity of
the Network and continuity of acceptable signal transmission to and from a Customer for the purpose of
delivering Communication Services in a manner consistent with industry standards,this Agreement, and any
applicable service quality metrics including the customer service quality metrics in Attachment E.
"Network"means the fiber-to-the-premises network described in this Agreement,to be developed by Provider
using Subaward funds. The Network includes,without limitation, fiber optic cable, conduits,manholes,
handholes, cabinets, structures, shelters,poles or pole line attachments, and routers, switches, optical
equipment,wireless equipment, customer premises equipment, and all associated network facilities and
equipment, as well as all intangible rights and property necessary or used for Network construction, operation,
and maintenance. The Network does not include network facilities developed by Provider using Provider
funds, as may be the case in areas for which federal support is authorized to a winning bidder under the Rural
Digital Opportunity Program("RDOF").
"Passed or Pass"means that the Network traverses the road on which the user location is located, such that
connecting the Customer requires only construction of a Service Drop rather than construction in or along the
road.
"Project"means activities related to the construction, installation, and activation of the Network as described
in this Agreement, including commencement of Communication Services.
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"Regulations"means all compliance,reporting and other rules and regulations applicable to the County, as the
primary recipient of Award funds, including those that flow through to Provider as a Subrecipient, for the
receipt of Award and Subaward funds and the Network development purposes described in this Agreement.
"Service Drop" or"Drop"means the fiber optic cable that connects the Network to a Customer's premises. In
general, a Drop will be installed only when Communication Service is ordered by a Customer.
"Subaward"means the subaward made to Provider by the County using Award funds, in the amount and for
the purposes described in this Agreement.
"Unserved"means a location is not reliably served as of the effective date of this Agreement,by terrestrially
deployed broadband service with transmission speeds of at least 25 Mbps download speed and 3 Mbps of
upload speed, as determined by the County.
"Work"means the network development activities to be undertaken by Provider, as set forth in the Contract
Documents.
4. TERM
This Agreement shall become effective as of the date executed by the Parties and shall terminate upon the
earliest of:
1. Mutual written consent of the Parties; or
2. Five years after closeout of the Project and all Subawards (closeout requirements being defined in
Section 15); or
3. Termination as a result of an uncured breach, as described in Section 19.
5. SCOPE OF WORK
a. Provider will engineer, construct, activate, operate and maintain a fiber-to-the-premises
("FTTP") network as more fully described in Attachments. Provider shall furnish and deliver
all of the materials, and perform, and be fully responsible for, all of the Work required by this
Agreement within the time period stipulated in the Term of this contract.
6. NETWORK DESCRIPTION
a. The Network will be a FTTP network consisting of approximately 45 fiber distribution hubs and
over 615 miles fiber within Orange County. (Network routes and service areas are more fully
described in Attachment A.) The Network will enable provision of Communication Services to
no less than 6,370 locations along the route(the"Mutually Agreed Service Sites"in Attachment
B). To promote regional economic development, Network capacity shall be provisioned to
accommodate robust future requirements of the Network in the area.
7. NETWORK CONSTRUCTION
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a. Generally. Provider shall design, engineer, and construct the Network at its sole risk and
expense, in a manner consistent with all requirements set forth in this Agreement. All
engineering and design work performed by or on behalf of Provider requiring any certifications
or licenses shall be so certified or licensed, and all design documents requiring stamping, or
which are customarily stamped, shall be properly stamped by a professional engineer licensed
in the State of North Carolina. Provider shall procure and install all Network facilities and
equipment, shall supervise and coordinate work by Provider contractors, and shall obtain all
necessary Authorizations relating to Network construction and activation. Provider shall
perform,or supervise and direct the Work,using Provider's best skill and attention, and shall be
solely responsible for, and have control over, construction means, methods, techniques,
sequences,and procedures,and for coordinating all portions of the Work,unless the Parties agree
in writing to other specific instructions concerning these matters. Under no circumstances shall
County be responsible for a failure by Provider to perform, or supervise, and direct the Work in
accordance with this Agreement or Applicable Standards. County shall not have control or
charge over, and will not be responsible for, acts or omissions of Provider or any other persons
or entities performing portions of the Work.
b. Provider shall construct the Network to Pass all locations identified in Attachment B, in
accordance with the Construction Plan and Timeline and within the timeframes described in
this Agreement.
(i) Should there be any locations discovered within the County that are 1)not listed in the
Mutually Agreed Service Sites in Attachment B, 2)not included in any other grant
supported project area such as RDOF, and 3)be unserved, then that site shall, subject
to the limitations of section 7(g)(ii), automatically be added to the Mutually Agreed
Service Sites in Attachment B and to the number of locations required to be served for
the third disbursement. Upon discovering such a location,the initial Party shall provide
notice to the other within thirty days and the other Parry shall provide confirmation
within an additional thirty days.Notwithstanding the foregoing, if the cost to build to
such locations is greater than twice the average cost set forth by Provider in Provider's
response to the Request for Proposal, such location(s) shall not be added to the
Mutually Agreed Service Sites in Attachment B.
c. Construction Plan and Timeline. A Construction Plan and Timeline, consisting of a Network
design, a construction schedule, and quarterly construction activities is included as Attachment
C to this Agreement. Provider represents that the Construction Plan and Timeline was prepared
after Provider reviewed and verified materials, field measurements, field construction criteria,
geographic and geologic features, and regulations and permitting requirements applicable to
the Network sections. Provider will perform the Work in accordance with the Construction
Plan.
d. Modifications to Construction Plan.
(i) If, during construction, Provider reasonably determines that a deviation from the
Construction Plan(including the construction schedule included therein) is required or
appropriate,Provider may do so without prior notice or approval from the County
provided that each of the following elements are met: (i)the fiber route as shown in
the Construction Plan remains substantially unchanged; (ii)the quality, effectiveness
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and capability of the installed materials remains unchanged; and(iii)the change will
not result in a construction deviation of more than fifteen(15) days from the end of the
quarterly plan. In all other cases, including an actual or anticipated delay in the
construction schedule or a substantial modification to the Network map depicted in
Attachment A,Provider shall submit such modification and a detailed explanation for
the delay, as applicable. The County shall approve or deny such a proposed changed in
writing within seven(7) days. If the County fails to respond to such proposed
modification within thirty(30) days,the proposed change shall be deemed approved.
(ii) If, during construction, the County reasonably determines that a deviation from the
Construction Plan is desirable or appropriate,the County may submit a change request
in writing to Provider describing the nature of the proposed change. The Parties will
cooperate in good faith to address the additional cost and impact on the construction
timeline associated with the proposed change, if any. Provider may decline to
undertake the change, in its sole discretion.
e. Concealed or Unknown Conditions. If Provider encounters conditions at a site that it did
not detect through the exercise of commercially reasonable due diligence, and(1)the
conditions are sub-surface or otherwise concealed physical conditions that differ materially
from those reflected in the Construction Plan, or(2)the conditions are unknown physical
conditions of an unusual nature that differ materially from those ordinarily found to exist and
generally recognized as inherent in construction activities of the character provided for in the
Construction Plan, Provider shall promptly provide notice to County and in no event later than
21 days after first observance of the conditions. If County determines that the conditions differ
materially and will cause a material increase in time required by Provider to perform any part
of the work, and that Provider could not have identified the conditions by exercising
commercially reasonable due diligence prior to executing the Agreement, County will review
and approve an equitable adjustment to the time necessary to complete a milestone, as
applicable,provided such adjustment does not require obligation of County funds after
December 31, 2024 or completion of work after December 31, 2025.
f. No Funded Construction in RDOF Areas or to Served Locations. Under no circumstances
shall Provider utilize Subaward funds to construct network facilities to connect locations in
areas designated for support under the FCC Rural Digital Opportunity Fund,unless such
authority is provided to the County to fund these areas after the effective date of this
Agreement. Provider shall not utilize Subaward funds to connect locations which are not
unserved.
g. Easements and Rights of Use.
(i) At Provider's sole cost and expense,Provider shall obtain from all state, local, and
federal jurisdictions,right-of-way owners,property owners,homeowners associations,
and other similar rights holders, all necessary easements and other applicable rights of
use upon those properties needed to construct, operate, and maintain the Network.
(ii) In the event that Provider is unable, despite commercially reasonable efforts,to obtain
the needed easements or rights of use from the property owners or other rights holders
in connection with a Location(such occurrence, a"Blocked Location"), Provider shall
use its best efforts to seek alternative means to ensure a Passing of all Locations
including the Blocked Locations. If alternative means are not available to it, Provider
shall notify County, and the Parties shall negotiate in good faith to devise a plan to
complete the Passing or modify the Work to delay those Locations that cannot be
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passed due to the unwillingness of the property owner(s)to grant the needed easements
or other rights of use,until such time as easements or rights of use can be secured.
Provider will make best efforts to ensure a Passing of any and all Blocked Locations in
future years during the Construction Period and for a period of five years after the
Construction Period.
h. Authorizations. Provider shall be responsible for obtaining all necessary and useful
Authorizations and paying all applicable Authorization Fees relating to execution of the Work.
i. Progress Reports and Inspections. Provider shall keep County well-informed as to the
progress and quality of the Work, and of any delays that have occurred, or that Provider
reasonably anticipates will occur. No less than monthly during the construction period, or as
otherwise agreed by the Parties,Provider shall provide to County and its approved designees
up-to-date information identified below, and such other information that may be useful or
relevant to County as to the Work:
• Nature of Work completed during the preceding period;
• Estimated percentages of physical completion for the Network;
• Number of route miles of fiber constructed and activated;
• Overall project schedule status;
• Overall project budget status;
• Number of locations Passed by Network section;
• Number of residential subscriptions by service type added in that quarter, and to
date;
• Any delays that have occurred, or are continuing to occur,with a detailed
explanation and plan to address such delay;
• Any anticipated delays in the Work,with a detailed explanation;
• Responses to particular requests for information from County;
• Any proposed changes to the Work; and
• Other information reasonably requested by County.
j. As-Builts. Promptly following completion of the Network, Provider shall make available"as-
built"documentation in such format reasonably required by County.
8. NETWORK OPERATIONS
a. Activation. Provider will activate or"light" all fiber constituting the Network, and otherwise
cause the Network to be capable of providing Communication Services to Customers.
Provider will identify and procure all equipment necessary to activate the Network
b. Network Operations Center. Provider will operate a Network Operations Center("NOC"),
and be primarily responsible for Network operation and monitoring. Provider will monitor the
Network for outages or service degradation in a manner consistent with industry standards.
Provider will implement a plan to, and will,promptly respond to Network outages or trouble
tickets, including escalation procedures as appropriate.
c. Communications Service.
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(i) Generally. Provider shall operate and maintain all necessary fiber and equipment for
the Network to provide Communication Services to all connected Locations, and
Provider will offer Communication Services to any residence or business that is Passed
by the Network.
(ii) Communications Services shall include 2 Gbps symmetrical broadband internet access
service to every home and business,with a minimum level service offering to each
home and business of 100 Mbps symmetrical. Other Internet speed options may be
made available as well.
(iii) Low cost broadband service offering: A low cost broadband service with a minimum
internet speed of 100 Mbps symmetrical will be offered to all County residents for no
more than $30 per month,prior to any federal or state subsidies available,until at least
two years from the date of complete network construction. Per the terms of the
American Rescue Plan Act, Provider must participate in the FCC's Affordable
Connectivity Program as long as it is available. As used in this subsection, the term
"County"means the portion of Orange County to which Provider deploys FTTP
Service pursuant to this Agreement.
(iv) Service Pricing: Provider will advertise on their website and offer broadband service
pricing at the rates quoted in the RFP responses(or better)until at least three(3)months
after the date of the first customer activation. Provider further agrees that its standard
rates in place at the date of the first customer activation will not increase by more than
10%per year for any of the service levels until at least January 1,2026 in the portion of
Orange County to which Provider deploys FTTP Service pursuant to this Agreement.
(v) Provider agrees not to impose data caps on residential broadband service or throttle
residential broadband service based on data caps or metering at any time during which
it owns the network.
(vi) Service drops; CPE. Provider will install Service Drops to Customer locations.
Provider will not charge for Service Drops less than 1000' feet in length. Provider will
procure and provide necessary Customer Premises Equipment.
(vii) Customer service. Provider will provide first-line support to all Customers of
Communication Services provided by Provider.
(viii) Billing and collection. Provider will generate and issue Customer bills and will be
responsible for billing collection and related back-office accounting and administrative
functions.
(ix) Marketing. Provider will diligently market the Communication Services as they are
made available to potential Customers.
(x) Regulatory compliance. Provider shall be responsible for all aspects of local, state
and federal regulatory compliance and reporting that relate to the provision of
Communication Services using the Network, including the payment of any fees or
taxes required thereby.
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(xi) Maintenance.Provider shall comply with customer service quality metrics as
described in Attachment E. Such metrics shall be uniform to all service within the
County.
d. Communications Services to County. Provider shall provide broadband Internet access
service to all County-owned or operated facilities, and public service facilities (including fire
stations)that are Passed by the Network at no charge until June 30, 2028. These facilities shall
include, at a minimum, those identified as County XPON Sites in Attachment F.
e. Dark Fiber Leases or IRUs. Provider may lease, or grant an indefeasible right of use (IRU)
with respect to, dark fiber strands contained within the Network. Unless expressly agreed in
writing by County, no dark fiber lease or IRU shall operate to relieve Provider from any of its
obligations under this Agreement, including the provision of Communication Services.
9. MAINTENANCE
a. Facilities. Provider will perform all necessary scheduled and emergency Maintenance and
restoration on Network facilities it constructs, including but not limited to trunk fiber,the
distribution network portion of the Network, and Service Drops to Customers. Provider shall
respond promptly to any complaints from any property owners. Provider agrees to repair any
damage to Customers' yards and any real or personal property, and to take reasonable action to
restore the Customer's property to the condition that it existed when the Customer signed up
for service, normal wear and tear excepted,within a reasonable amount of time.
b. Network Electronics. Provider will Maintain all electronics, optronics, routers, switches and
other equipment used to activate and operate the Network. Provider will schedule and
perform periodic inspections, Maintenance, and repair to identify and correct any failure,
interruption, or impairment in the operation of the Network.
c. Customer service quality metrics._Provider shall perform all maintenance necessary to
comply with the customer service quality metrics found in Attachment E.
10. NETWORK OWNERSHIP
Ownership of equipment or real property acquired using Subaward funds shall vest in Provider, as the
acquiring entity, subject to the limitations set forth in 2 CFR §§ 200.311 and 200.313. Title in such property
shall be conditional and subject to such property being used only for the originally authorized purpose, for the
duration of its useful life. No Party may encumber or transfer Award-funded property without first notifying
and, if necessary, obtaining the consent of Authorities.
11. STANDARD OF CARE
a. The Provider shall exercise reasonable care and diligence in performing the Work in accordance
with generally accepted standards relating to network development projects of this type
throughout the United States and in accordance with Applicable Standards. Provider is solely
responsible for the professional quality, accuracy and timely completion and/or submission of
all work.
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b. Provider shall be responsible for all Provider, subcontractor, and sub-subcontractor errors or
omissions, in the performance of the Agreement together with the errors and omissions of any
agent or employee of the Provider or any subcontractor or sub-subcontractor. Provider shall
correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no
additional cost to the County.
c. Provider is an independent contractor of the County. Any and all employees of the Provider
engaged by the Provider in the performance of any work or services required of the Provider
under this Agreement, shall be considered employees or agents of the Provider only and not of
the County, and any and all claims that may or might arise under any workers compensation or
other law or contract on behalf of said employees while so engaged shall be the sole obligation
and responsibility of the Provider.
d. Provider shall at all times remain in compliance with all applicable local, state, and federal laws,
rules, and regulations including but not limited to all state and federal -discrimination laws,
policies, rules, and regulations and the Orange County Non-Discrimination Policy and Orange
County Living Wage Policy(each policy is incorporated herein by reference and may be viewed
at hiq2://www.oranaecoun!3mc.gov/departments/Turchasing division/contracts.php). Any
violation of the Orange County Non-Discrimination Policy is a breach of this Agreement and
County may immediately terminate this Agreement without further obligation on the part of the
County. This paragraph is not intended to limit and does not limit the definition of breach to
discrimination.
e. If activities related to the performance of this Agreement require specific licenses,certifications,
or related credentials Provider represents that it and/or its employees, agents and subcontractors
engaged in such activities possess such licenses, certifications, or credentials and that such
licenses certifications, or credentials are current, active, and not in a state of suspension or
revocation.
f. The Provider shall supervise and direct the Work efficiently and with the Provider's best skill
and attention. Except as specifically set forth in the Contract Documents the Provider shall be
solely responsible for the means, methods, techniques, sequences and procedures of
construction, and for safety precautions and programs in connection with the Work. The
Provider shall be responsible to see that the finished Work complies accurately with the Contract
Documents.
g. Provider commits to making best efforts to retain two Orange County residents as employees for
the first five years of Network construction and operation. In the event the total Orange County
residents employed by Provider is less than two,Provider's best efforts shall include recruitment
of County residents,particularly those at local County colleges.
h. The Provider shall attend all progress conferences and all other meetings or conferences either
in-person or remotely. The Provider shall be represented at these progress conferences by
Provider employees with decision-making authority and by such other representatives as the
County may direct.
12. SUBAWARD TO PROVIDER
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a. The County hereby agrees to pay to the Provider for the faithful performance of Provider's
obligations under this Agreement, and the Provider hereby agrees to perform all of the Work for
a total sum not-to-exceed Ten Million Dollars ($10,000,000), to be paid in accordance with
Section 13 and the Contract Documents ("Subaward").
13. DISBURSEMENT SCHEDULE
a. Disbursement of the Subward shall be made to Provider in accordance with the following
schedule and milestones, subject to the Subrecipient Agreement and Provider's submission of
documented eligible costs:
Initial payment within 30 days of Effective $1,000,000.00
Date
Upon Passing of and offering $3,000,000.00
Communication Services to 3,000 locations
no later than December 31, 2023
Upon Passing of and offering $6,000,000.00
Communication Services to no less than
3,370 additional locations no later than
December 31,2024, and commitment to Pass
additional locations no later than December
31, 2025
Provider shall be eligible for accelerated disbursement based upon the achievement of
milestones. County shall disburse funds within 30 days of demonstrated milestone completion.
14. TAXES
a. The Provider shall pay all taxes,fees and charges assessed by any authority relating to the Work or the labor
and materials used therein.
15. PROJECT CLOSEOUT
a. Final Expenditures. All Project costs must be incurred by December 31,2024, and all Work
must be completed no later than December 31,2025,unless extended by Authorities.
Provider shall endeavor to deliver reimbursement requests and any invoices,receipts, hours,
payroll information and any other supporting documentation for any work completed or to be
completed,to the maximum extent feasible,by November 15, 2024. With respect to work to
be completed between December 31, 2024 and December 31, 2025, if any, Provider shall use
its best efforts to estimate remaining costs and submit such estimates in a"Final Distribution of
Funds Request,"to be submitted no later than November 15,2024.
b. Subject to additional applicable closeout requirements set forth in 2 CFR§ 200.344,the
Subaward shall be deemed closed upon the completion of the following:
1. The County receives Provider's Final Distribution of Funds Request;
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2. The County receives a final Expenditure Report indicating that all approved Project
work has been completed, and that all Award funds corresponding to such work
during the Term of this Agreement have been disbursed to Provider;
3. The County confirms the accuracy of the final Expenditure Report and reconciles
actual costs incurred by Provider to Subaward payments (including modifications)
and, as a result of such reconciliation, issues any additional funds or receives
reimbursement from Provider, as the case may be(true-up); and
4. The County notifies Provider in writing that the Subaward is completed and closed.
16. NON—APPROPRIATION
a. Provider acknowledges that County is a governmental entity, and the validity of this Agreement
is based upon the availability of public funding under the authority of its statutory mandate.
b. In the event that public funds are unavailable and not appropriated for the performance of
County's obligations under this Agreement, then this Agreement shall automatically expire
without penalty to County immediately upon written notice to Provider of the unavailability and
non-appropriation of public funds. It is expressly agreed that County shall not activate this non-
appropriation provision for its convenience or to circumvent the requirements of this Agreement,
but only as an emergency fiscal measure during a substantial fiscal crisis.
c. In the event of a change in or successful challenge to the County's statutory authority, mandate
and/or mandated functions, by state and/or federal legislative, judicial or regulatory action,
which adversely affects County's authority to continue its obligations under this Agreement,
then this Agreement shall automatically terminate without penalty to County upon written notice
to Provider of such limitation or change in County's legal authority.
17. NOTICES
Any notice required by this Agreement shall be in writing and delivered by certified or registered mail,
return receipt requested to the following:
County: Provider:
Orange County North State Communications Advanced Services, LLC
Attn: Travis Myren Michael Saperstein
P.O. Box 8181 One Lumos Plaza
Hillsborough,NC 27278 Waynesboro,VA 22980
18. RECORD KEEPING
Provider shall maintain financial and other records that specifically show the use of the Funds
exclusively for the purposes of the Scope of Work. Provider shall maintain such records for at
least five (5)years after the end of the Agreement. County shall have the right,upon reasonable
notice,to conduct on-site visits and to audit at any time up to five (5)years after the end of the
Project Closeout, as defined in Section 15,Provider's records relating to the expenditure of the
Funds.
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19. DEFAULT AND REMEDIES
a. Default. A default under this Agreement shall occur if(a) a Party fails to perform, in any
material respect, any of its obligations set forth in this Agreement, (b) such failure is not
excused by any provision of this Agreement, and(c) such failure continues un-remedied for a
period of thirty (30) calendar days following receipt of written notice from a non-breaching
Party. If the breach by its nature cannot be cured within thirty (30) days and the breaching
Party within that time has diligently commenced its cure,there shall be no default as long as
the Party diligently continues such cure to completion.
b. Remedies. Upon the occurrence of a Default, the non-breaching Party shall have the right to
terminate this Agreement(and any associated Subaward, as applicable) and to pursue any and
all available legal or equitable remedies against the defaulting Party. The non-breaching Party
may pursue such remedies simultaneously or consecutively, at its discretion.
c. County may demand repayment for, and Provider shall pay to County,ARPA Award funds not
used for the purposes provided in this Agreement. County may demand repayment for and
Provider shall pay to County ARPA Awards funds if the network does not meet the ARPA
Award rules. County may pursue other remedies as may be available at law or in equity.
20. ASSIGNMENT.
Unless otherwise provided in this Agreement above, Provider shall not sell, transfer, assign, or otherwise
convey ("Assignment")the Network or its rights or obligations under this Agreement without the prior
written approval of the County,which approval shall not be unreasonably withheld, conditioned or delayed.
Provider shall provide written notice of a proposed Assignment no less than ninety (90) days' prior to its
execution. Any purported Assignment by Provider that does not meet the requirements of this Section shall
be null and void, and shall be deemed an Event of Default. In all cases, Provider shall require the assignee
to expressly agree, in a writing satisfactory to County, to be bound by each of the applicable terms and
conditions of this Agreement. Provider shall not be relieved of any of its obligations under this Agreement
until the County has been provided a copy of the writing in which the assignee agrees to be bound by the
terms of this agreement.
21. MISCELLANEOUS
a. Duties and Obligations imposed by the Contract Documents shall be in addition to any Duties
and Obligations imposed by state, federal or local law,rules,regulations and ordinances.
b. No act or failure to act by the County or Provider shall constitute a waiver of any right or duty
funded them under the Contract Documents, nor shall any act or failure to act constitute any
approval except as specifically agreed in writing.
c. The Work shall be tested and inspected as required by the Contract Documents and as required
by law. Unless prohibited by law the costs of all such tests and inspections related to state and
federal codes such as ADA, Administrative, Electrical, Plumbing, Mechanical and Building
Codes shall be borne by the Provider. The costs for material and structural testing shall be
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conducted by an independent third parry at the expense of the County. Delays related to any of
the aforementioned tests and inspections shall not be grounds for delaying the completion of the
work. If any such tests and inspections reveal deficiencies in the Work such that the Work does
not comply with terms or requirements of the Contract Documents and/or the requirements of
any code or law the Provider is solely responsible for the cost of bringing such deficiencies into
compliance with the terms of the Contract Documents and/or any code or law.
d. Should the County reject any portion of the Work for failing to comply with the Contract
Documents, Provider shall immediately, at Provider's expense, correct the Work. Any such
rejection may be made before or within one year after substantial completion.
e. Installation Fee: Provider is encouraged not to charge an installation fee,but at no time will the
fee be more than$75 per premise.
22. INDEMNITY
a. To the extent authorized by North Carolina law, the Provider agrees, without limitation, to
defend,indemnify and hold harmless the County from all loss,liability,demands,claims,causes
of actions, suits, judgments, and costs and expenses incidental thereto, (including, without
limitation, amounts paid pursuant to investigations, defense or settlements, and reasonable
attorneys'fees), arising out of or related to the Scope of Services and arising from challenges to
the authority and making of this agreement. It is the intent of this provision to require the
Provider to indemnify the County to the fullest extent permitted under North Carolina law.
23. CONSEQUENTIAL DAMAGES
a. County and Provider mutually waive any claim against each other for consequential damages.
Consequential Damages include:
(i) Damages incurred by County for loss of use, income, financing, or business.
(ii) Damages incurred by Provider for office expenses, including personnel, loss of
financing, profit, income, business, damage to reputation, or any other non-direct
damages.
24. INSURANCE
During the term of this Agreement Provider will maintain the following insurance levels:
Workers'Compensation Insurance,with limits for Coverage A Statutory- State of North Carolina and
Coverage B Employers Liability $500,000 bodily injury, $500,000 bodily injury by disease, and
$500,000 by disease policy limit.
Commercial general liability of not less than$2,000,000 General Aggregate Limit(Other than
Products-Completed Operations), $2,000,000 Products-Completed Operations Aggregate Limit,
$1,000,000 Personal and Advertising Injury Limit, $1,000,000 Each Occurrence Limit, and$100,000
Fire Damage Limit, and shall not contain an exclusion for contractual liability.
For automobile liability the limits shall not be less than$1,000,000 each person, $1,000,000 each
occurrence of bodily injury liability, and$1,000,000 each occurrence of property damage liability,
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policies with a single combined limit must be not less than $2,000,000 or$1,000,000 with an umbrella
policy of$1,000,000 per occurrence.
Professional liability insurance shall not be less than $1,000,000 per occurrence and shall hold Orange
County, its departments, agents, employees or assigns harmless from any claim, including claims for
attorneys' fees or other legal expenses,which may arise as a result of the sole negligence or
malpractice of an employee of the Provider in providing services.
25. ENTIRE AGREEMENT
All of the documents listed, referenced or described in this Agreement, the written Notice-to-Proceed,
together with Modifications made or issued in accordance herewith are the Contract Documents, and the work,
labor, materials, and completed construction required by the Contract Documents and all parts thereof is the
Work. The Contract Documents constitute the entire agreement between County and Provider. This Agreement
may be amended only by written instrument signed by both parties. Modifications may be evidenced by
facsimile signatures. If any provision of the Agreement or General Conditions shall be declared invalid or
unenforceable,the remainder of the Agreement shall continue in full force and effect.
IN WITNESS WHEREOF,the Parties hereto have executed this Agreement as of the day and date first
above written in a number of counterparts, each of which shall, without proof or accounting for other
counterparts,be deemed an original contract.
ORANGE COUNTY: PROVIDER:
By: By:
Bonnie Hammersley, County Manager Diego Anderson- CEO
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Attachment C 21
Orange County FTTP Project Schedule(6370 HHs)
May-22 JUW22 Ju422 Aup22 8e►22 Oa622 1?1ar22 De 22 Jai Fa►23 Mar,23 Apn23 Map33 Juo-43 JuM Aug33 Sep-23 Oab33 16ew33 Du 23 Jaa@4 FM24 MardG Apn24 May-24 Jun24 Ju4TA AUF21 —7
Project Planning Plann[ngHe work
Otrectar OSP _
Site Surveys
Oire'OSP
Easement Research
orrl1
Design Engineer, Engneering
DireRor OSP
Permit Acquisition Engineering
DireRor OSP
MP Fiber Ruild Construction
DireRor OSP
Site Preparation Engineering
DireRor lP
Equip Installation Engineering
DireRor OSP
Fiber Terminal Installs&Splicing Construction
DireRor. OSP
Commercial Power A<[ivMion Engineering
DirectorlP
Equip Turn-op Engineering
ors�IP&OSP)
ng
O ors SIP&05P)
PM1au3 MarkH leumir 1+1,000 H.—) Engi—ni,g
O ors SIP&OSP)
Phase3 M.—Laonth(,1, mesh Engi eering
Di"a.,SIP&OSP)
Ph—4M-0 Laonth(11,000 Homes) EEi,eering
ors(IP&OSP)
uncb(a1,000 Homes) ring
D ors SIP&OSP)
Ph—6M.—U.-)e 1,3M Homes) Engi eering
"'-JJ Schedule hazed on Signed Contract Ecec W by June W,2022