HomeMy WebLinkAboutOTHER-2024-105-Amendment to the Network Development Agreement for Broadband Deployment with Lumos to Extend the Project Deadlines AMENDMENT TO NETWORK DEVELOPMENT AGREEMENT BETWEEN ORANGE COUNTY AND NORTH
STATE COMMUNICATIONS ADVANCED SERVICES, LLC
This Amendment (the "Amendment" ) is made and entered into as of the _ day of ,
2024, by and between Orange County, a political subdivision of the State of North Carolina ( hereinafter
referred to as the " County " ), and North State Communications Advanced Services, LLC ( hereinafter
referred to as the " Provider " ) .
WHEREAS, the parties entered into a Network Development Agreement dated April 26, 2022
( hereinafter referred to as the "Agreement" ), for the development of broadband infrastructure in
unserved and underserved areas of Orange County, using funds from the Coronavirus Local Fiscal
Recovery Fund ( part of the American Rescue Plan Act of 2021, Pub . L . No . 117-2 ) ; and
WHEREAS, the Agreement currently requires that all project costs be incurred by December 31, 2024,
and that construction and work be completed by December 31, 2025 ; and
WHEREAS, the parties wish to extend the project timeline due to construction delays experienced by
Provider and to ensure compliance with ARPA deadlines, while clarifying the allocation of risks and
responsibilities for compliance and prioritization of work within the County' s normal governmental
operations .
NOW, THEREFORE, the parties agree to amend the Agreement as follows :
1 . Extension of Timeline for Project Completion
The following sections of the Agreement are hereby amended as follows :
• Section 7(e ) — Concealed or Unknown Conditions : The last sentence of subsection 7 ( e ) shall be
replaced with " 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, 2025, or completion
of work after December 31, 2026 . "
• Section 13 —Disbursement Schedule . The schedule for the final $ 6, 000, 000 . 00 milestone
payment shall be replaced with " Upon Passing of and offering Communication Services to no
less than 3, 370 additional locations no later than December 31, 2025, and commitment to Pass
additional locations no later than December 31, 2026 ."
• Section 15 — Project Closeout, Subsection a . Final Expenditures : Section 15 ( a ) is replaced in its
entirety with : "All Project costs must be incurred by December 31, 2025, and all Work must be
completed no later than December 31, 2026, unless extended by Authorities . Provider shall
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 December 1, 2026 . The County shall have no obligation to prioritize or
expedite the processing of payment requests beyond its normal operational procedures . If the
Provider fails to comply with the deadlines, documentation requirements, or any provisions of
this Amendment, the County reserves the right to withhold or recoup ARPA funds. and shall have
no obligation to disburse funds after the December 31, 2026, deadline . The Provider
acknowledges that any delay in submitting required documentation may result in nonpayment,
and the County shall not be liable for any financial losses incurred by the Provider due to
noncompliance . "
2 . Whistleblower Protections
The parties agree hereby to add the following section after Section 25 :
"Section 26 — Legal and Regulatory Compliance :
• The Provider agrees to comply with whistleblower protections under 41 U . S . C . 4712 , which
prohibits retaliation against employees who report fraud , waste, or abuse of federal funds . The
Provider shall inform all employees involved in the project of their rights under this statute and
ensure that no retaliatory actions are taken against whistleblowers .
• The Provider shall provide a copy of its whistleblower policy to the County within 30 days of the
execution of this Amendment, confirming compliance with these requirements ."
3 . Audit and Compliance
Section 19 ( c ) of the Agreement is hereby expanded as follows :
• The Provider acknowledges that all ARPA funds are subject to audit and monitoring under 2
C . F . R . Part 200 . The Provider shall maintain accurate financial records and provide full
cooperation during any audits conducted by the County, the U . S . Department of the Treasury, or
other federal and state authorities .
• If any ARPA funds are found to have been expended in violation of ARPA or federal guidelines,
the Provider shall immediately repay such funds to the County upon request . The County
reserves the right to withhold future payments or recoup funds in cases of noncompliance .
3 . Replacement of Attachment C — Construction Plan and Timeline
Attachment C ( "Construction Plan and Timeline" ) shall be replaced in its entirety and in all instances by
the new Attachment C2 ( " Revised Construction Plan and Timeline " ) .
4 . Remainder of Agreement Unchanged
Except as expressly modified by this Amendment, all other terms and conditions of the Network
Development Agreement remain unchanged and in full effect .
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above .
Orange County:
By : � —
Travis yren , Cou ty Ma ager
Date : 1A A
North State Communications Advanced Services, LLC :
By :
Brian Stading, CEO
Date :
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