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HomeMy WebLinkAboutOTHER-2022-031-Network Development Agreement [ 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 26t' 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 j 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 . i 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 ) 1 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 Commi ssion ("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 (1) 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 . 2 "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 . "FiberAo -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 fiberAo -the -premises network described in this Agreement, to be developed by Provider The Network includes , without limitation, fiber optic cable , conduits , manholes , using Subaward funds . 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 . 3 "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 fiberAo -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 4 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 . (1) 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) (1ii) , 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 Parry shall provide notice to the other within thirty days and the other Party 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 Be 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 . (1) 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 : (1) the fiber route as shown in the Construction Plan remains ) the quality, effectiveness substantially unchanged ; (ii 5 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 . (1) 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 6 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 upAo - 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 ; 0 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 ; 0 Number of locations Passed by Network section; 0 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 Works 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. (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 . (Ili) 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 . 8 (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 . 9 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 ttp : // v . oran e�nt ov/departments/purchasing division/contracts . p p) o 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 10 V 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 notAo - 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 ; 11 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 Saperstem 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 . 12 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 13 conducted by an independent third party 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 maybe 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 : (1) 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, 14 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 Maria Diego Anderson - CEO 15 ORANGE COUNTY—DEPARTMENT USE ONLY Department Party/Vendor Name : Party/Vendor Contact Person : Contact Phone : Party/Vendor Address : City . State : Zip : Department : Amount : Purpose : Budget Code (s) : Vendor # (N/A if new vendor) Vendor is a BOCC consultant? Yes ❑ No ❑ Contract Type : (Check one) New ❑ Renewal ❑ Amendment ❑ Effective Date Approved by Board Yes ❑ No ❑ Agenda Date : This agreement is approved as to technical form and content : Department Director ' s Signature Date : Asset Management (Applicable only to construction contracts) This agreement has been reviewed and is approved as to construction services content and specifications : Office of the Asset Management Director Date : Risk Management This agreement is approved for sufficiency of insurance standards , specifications , and requirements : Office of the Risk Management Officer Date : Financial Services This instrument has been pre - audited in the manner required by the Local Government Budget and Fiscal Control Act : Office of the Chief Financial Officer Date : Legal Services This agreement is approved as to legal form and sufficiency : Office of the County Attorney Date: Clerk to the Board Received for record retention : All Docusign contracts must be copied to Sherri Ingersoll upon completion : singersoll@orangecountync . gov The following signature block is for hard copies only and is not required for Docusign contracts : Office of the Clerk to the Board Date : 16