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HomeMy WebLinkAbout2015-1253120150076662 RECORDED IN THE RECORDS OF JEFFREY R. SMITH, CLERK OF CIRCUIT COURT INDIAN RIVER CO FL BK: 2901 PG: 1151,12/29/2015 1:21 PM A TRUE COPY � CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK Retum to: City Attomey City of Vero Beach Courthouse Box 40 P.O. Box 1389 Vero Beach, FL 32961-1389 REVISED AND RESTATED JOINT FIBER OPTICS PROJECT INTERLOCAL AGREEMENT This Revised and Restated Joint 'Fiber Optics Project Interlocal Agreement ("Agreement") is made and entered into as of the day of 2015 ("Effective Date") by and among the School Board of Indian Rh4r County, Florida ("School District'), Indian River County ("County"), and the City of Vero Beach ("City"). The School District, County, and City are also referred to individually herein as a "member" and collectively as "members" or the "CONSORTIUM." WHEREAS, the individual members of the CONSORTIUM previously recognized the need for a fiber optics network joining their facilities throughout the City of Vero Beach and Indian River County for the transmission of voice and data; and WHEREAS, recognizing this need and the ability of cities, counties, and school districts to enter into interlocal agreements pursuant to section 163.01, Florida Statutes, in order to make the most efficient use of their respective powers for their mutual advantage, the CONSORTIUM entered into that certain Joint Fiber Optics Project Interlocal Agreement in 1999 ("1999 Agreement") which established joint use of a fiber optics network by the members and established policies for its use; and WHEREAS, the members continue to have a demonstrated need for a fiber optics network and each member owns and maintains certain assets which render such a network cost-effective and beneficial for the members; and WHEREAS, the members desire to revise and restate the 1999 Agreement in order to update its terms as set forth herein, NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the members agree as follows: SECTION 1. Mission Statement. The purpose of this Agreement is to create and maintain a fiber optics network that can be utilized for the mutual benefit of the CONSORTIUM to provide communications cost- effectively and/or new applications which are not possible without the development and maintenance of such a network and to provide the policies and terms for use and maintenance of the network. Page 1 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1152 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK SECTION 2. Definitions. Fiber Optics Network ("NETWORK') - The cable, associated fibers, splice enclosures, and all other related equipment located throughout Indian River County constructed, installed, and maintained by the members for use by one or more members and authorized third -parties. License Agreement — An agreement entered into by one or more members with another member or a third -party for use of NETWORK fiber/facilities by such other member or third -party. Licensee — A member or third -party authorized to use NETWORK fibertfacilities pursuant to a License Agreement. Reconciliation — Dissemination and sharing of sectionalization, ownership, and locational information; discussion of administration, operations, and maintenance of the NETWORK; discussion of fiber licensing and License Agreements; reconciliation of funds owed to or by each member(s); and discussion of other pertinent topics concerning the NETWORK by the respective Staff of each member. Staff — The employee(s) of each respective member charged by such member with the duties of day-to-day administration and operations associated with the NETWORK for such member. SECTION 3. NETWORK Administration. Staff shall be responsible for the routine, day-to-day administration of the NETWORK and Reconciliation whenever there are additions or deletions to the NETWORK or transfer of ownership of any part of the NETWORK, entering into License Agreements, or otherwise at least annually by June 30 of each year. The governing body of each member shall retain authority for final approval (pursuant to its own policies and procedures) of: (a) its anticipated purchases related to the NETWORK; (b) any contracts and agreements for the development, operation, maintenance, or use of the NETWORK, such as, but not limited to, construction, maintenance or service contracts; attachment agreements; license agreements; or leases; (c) each Reconciliation; (d) sale of the member's ownership or other interest in the NETWORK or any portion thereof; and (e) election to abandon any portion of the NETWORK or to withdraw from or terminate this Agreement. SECTION 4. Ownership of NETWORK and Licensing to Members. The NETWORK shall be jointly owned by all members to the extent that they have contributed funding for a specific number of fibers during the initial or subsequent construction. Each member's ownership percentage in the NETWORK shall vary according to the percentage of fibers it has funded or otherwise purchased in each section of the NETWORK according to the sectionalization of the NETWORK as provided for herein. Each member shall keep accurate records of its ownership interests and asset locations in the NETWORK and shall report on and provide said records to Page 2 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1153 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK the other members at each Reconciliation in order to reconcile each member's ownership of the NETWORK, provide consistency in the members' records, and to ensure compliance with applicable rules, regulations, laws, and policies governing the custody and accountability of public assets. Each member shall take appropriate steps to protect information regarding the NETWORK and not divulge critical infrastructure information to non-essential third -parties as is provided for in the Code of Federal Regulations, Title 6, Domestic Security, Part 29, Protected Critical Infrastructure Information, and as is exempted from disclosure under Florida's public records law in Florida Statutes Chapter 119.071(3)(a). A member may sell all or a portion of its ownership interest in the NETWORK or specific fiber(s) to one or more other members. Any such sale shall be only in full section increments consistent with the most recent sectionalization or, if necessary due to changes, an updated sectional ization pursuant to a new Reconciliation. The purchase price for such ownership interest in the NETWORK or specific fiber(s) shall be calculated pursuant to the total cost to the selling member for the ownership interest being sold, including original installation plus subsequent investment. The method and timing of payment of compensation for such transferred ownership interest shall be as agreed by the affected members. Upon full payment to the selling member for the fiber sold, the apportionment of member ownership in each affected section shall be adjusted by Reconciliation to appropriately reflect the transfer in ownership. Thereafter, all calculations regarding apportionment of revenue and expenses shall be based on the recalculated percentage of ownership of each member. As an alternative to sale and transfer of ownership, a member may enter into a License Agreement for use of its fiber by one or more other members where such members do not have a fiber ownership interest in a particular section sufficient for the member's needs. The terms of any such License Agreement shall be as agreed between the affected members. Whenever such licensed fiber is to be retired or replaced, the member(s) using the licensed fiber shall be provided an opportunity to participate in the fiber replacement or to assume ownership of the fiber to be retired as agreed between the affected members. SECTION 5. Contribution of Use of Member Assets. In order to make the NETWORK a financially feasible project, the members recognize the need to provide without charge to other members the use of certain existing infrastructure and assets for NETWORK establishment and operation. Such assets shall include but are not limited to member -owned utility poles and related assets, conduit crossing various roadways, and publicly dedicated rights-of-way within the jurisdiction of and maintained by members. Infrastructure owned by a single member shall not under any circumstances become or be deemed property owned by the CONSORTIUM or jointly -owned by its members, except as may be otherwise provided in this Agreement and agreed between or among the governing bodies of each member. Upon the termination of participation or withdrawal of a member from this Agreement, any such infrastructure or assets of the terminating/withdrawing member the use of Page 3 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1154 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK which was contributed to the NETWORK shall remain in service if continuation is necessary for the NETWORK. However, the withdrawing member may charge for use of such assets, which charges .shall be consistent with the amount charged similar customers for like usage. Such costs shall be paid by the remaining members in proportion to their revised ownership interest in the NETWORK. Notwithstanding the foregoing or any other provision of this Agreement, any member may, in its sole discretion, sell or dispose of all or any part its infrastructure or assets the use of which was contributed to the NETWORK so long as such sale or disposal shall not cause an interruption in operation or use of the NETWORK. However, the disposition of a member's assets to a third -party which results in the institution of charges to the CONSORTIUM or any member for use of such assets shall not be deemed an interruption in operation or use of the NETWORK and shall be permitted. SECTION 6. NETWORK Use. Each member may use its NETWORK fibers for any purpose and in any manner it desires so long as such use does not interfere with the fair and reasonable use of the NETWORK by the other members and licensed third -parties, individually or collectively. Nothing in this Agreement shall preclude a member from licensing its own fiber or capacity to third -parties so long as it is in accordance with all applicable laws and regulations and not in conflict with this Agreement. SECTION 7. Sectionalization, Apportionment, and Fiber Allocation. A. Sectionalization and Apportionment. In addition to the other reporting requirements provided herein, in order to accurately apportion the revenues that may be derived from the NETWORK, as well as the costs associated with its operation and maintenance, each unique section of the NETWORK shall be identified with information that will enable determination of the proportion of each member's ownership interest in the NETWORK and each member's corresponding percentage share in revenues and costs. The distance measurement to be used for apportionment shall be Fiber KiloFeet (FKF). The apportionment of member ownership in a NETWORK section shall be based on the number of fibers each member owns in the particular section. At Reconciliation, a unique section shall be assigned or appropriately modified for each portion of the NETWORK whenever there has been a change in the size, year of placement, structure, or ownership from the preceding Reconciliation. Unless otherwise agreed by Staff, miscellaneous items associated with a section, minor variations within the section, or minor changes made to the section after it is originally established need not be a consideration in the identification of sections. For example, if in 1999 a particular span of 36 fiber cable placed in 1985 is damaged and that one span of fiber optic cable is replaced with a piece of 72 fiber cable that was available on hand, the appropriate footage, year of placement, method of placement, size, etc. for such Page 4 of 19 20I5.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1155 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK replacement may be recorded in the NETWORK location records, but it will not be absolutely necessary to re -sectionalize the NETWORK to account for that one span that is modified. If, however, changes of a significant nature are made to a section of the NETWORK, it may be advantageous to re -sectionalize that portion of the NETWORK. For example, if a large office complex is being established midway in one of the sections of the NETWORK and two thousand five hundred feet (2,500') of the pole line supporting the fiber optic cable will have to be placed closer to the office complex property line and it is determined that one of the customers in the complex will be leasing fiber so the size of the fiber optic cable is increased from thirty-six (36) to seventy-two (72) fibers, then a new section of NETWORK should be established and the old section of the NETWORK that has now been divided will be adjusted appropriately. The purpose of the sectionalization and apportionment process is for planning, routing, and cost/revenue sharing and is not meant to be an accounting tool for property records or tax purposes. A list of parameters for designating a section of NETWORK is attached as Appendix "A" and incorporated herein. B. Fiber Allocation. Whenever a third -party desires to license the use of any portion of the NETWORK, the fibers to be used by the potential Licensee pursuant to the License Agreement shall be in the same proportion as those owned by each member in the particular section(s) of the NETWORK to be licensed. For example, where a potential Licensee desires to lease twelve (12) fibers of a seventy-two (72) fiber cable in a NETWORK section, of which one member owns thirty-six (36) fibers and the other two members each own eighteen (18) fibers and assuming all three members have fiber available that they are willing to license, six (6) of such first member's fibers would be used and three (3) each of the other two member's fiber would be used for licensing. If a member does not wish to participate in a License Agreement, such non- participating member's proportion of fiber owned shall be disregarded in determining the quantity of participating members' fibers to be used by the Licensee pursuant to the License Agreement. In the example above, should a member owning eighteen (18) fibers not wish to license any of its fibers, then the total fiber count in the section to be considered would be reduced to fifty-four (54) after deducting such non -participating member's eighteen (18) fibers. In such instance, and assuming the capacity is available, eight (8) fibers from the member owning thirty-six (36) fibers and four (4) from the other member's eighteen (18) fibers would be used for licensing. Likewise, should a member desire to limit its participation to a lesser number of fibers, the number of each participating member's fibers used for the License Agreement may be adjusted accordingly. Page 5 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1156 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK Should a member license any I portion of its fibers to a third -party and subsequently develop its own needs for additional fiber or its needs otherwise increase, that member may license fiber from other members for its use as provided in this Agreement, assuming the availability of necessary fiber and the absence of alternatives to meet the demand of the member in need of the additional fiber. A member may also purchase as provided herein the needed fiber from another member willing to sell such fiber. SECTION 8. Record Keeping In addition to the other reporting requirements provided herein, each member shall be responsible for keeping records of additions to the NETWORK and payments made by the member for extensions, expansions, repairs, and maintenance to the NETWORK. A joint GIS record system shall be maintained by the County and, until direct access to the records system can be provided to the members, paper maps and Compact Discs of such GIS records shall be provided to the members by the County as reasonably requested. GPS location points will be provided by members for inclusion on the maps as requested by members. Each member shall pay, pursuant to section 9 regarding cost sharing, their fair share of the costs (e.g., contractor, material, duplicating costs) incurred in development and maintenance of the GIS record system and providing data to members, as well as expenses for enhancements to the record system for the purposes and benefit of the NETWORK and CONSORTIUM beyond the basic system which has been developed by the County, as such enhancement expenses may be approved by the members' governing bodies. However, whenever possible, the County shall use existing CONSORTIUM resources coordinated with the other members in order to avoid third -party costs. Expansion of the GIS record system (e.g., member direct access) may require that each member provide its own equipment to connect directly to a shared server. The GIS record system shall contain distance, location, ownership, construction method, address, and other pertinent information and data as can be reasonably and cost-effectively gathered. Hyper -linking of photographs and assignment information to enhance maintenance and administration of the NETWORK is possible and each member may provide the detail and data for inclusion that each member desires. SECTION 9. Cost Sharing. The actual costs of planning, designing, installing, repairing, and maintaining the NETWORK, including, but not limited to, the total cost of labor and materials, including fiber optics cable and equipment, shall be shared among the members in accordance with the sectionalization and ownership interest apportionment in the affected portion(s) or section(s) of the NETWORK as provided in Sections 4 and 7. This cost sharing arrangement shall be used whether such costs are incurred internally by one or more members or through a contractual agreement between a third -party vendor and one or more members. However, consideration shall be given for adjustment of each affected member's proportionate share of costs when the needs of only one or two affected members require the repairs or replacement to be accomplished other than during normal business hours (e.g., repair is needed at night or on weekends) at additional or increased costs while repairs to meet the needs of the other affected member(s) could Page 6 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1157 A TRUE COPY CERTIFICATION ON LAST PAGE' J.R. SMITH, CLERK 11 be delayed. No member shall be required to share in the costs of any section of the NETWORK in which such member does not have any ownership interest. All costs of connecting a member's facility to the NETWORK shall be paid by such member. Such costs include, but are not limited to, the drop from the NETWORK to the facility, all materials and equipment necessary to connect to and utilize the NETWORK for the intended purpose of the member, and all associated labor costs. In any instance where the connection to a member's facility could result in a benefit to other members, such other members may elect to participate in the connection and pay their proportionate share of the costs. For example, extending a new fiber into a member's facility to develop a strategic cross -connect location could potentially benefit more than just that member and the costs may be shared based on the proportion of the cross- connect benefit and corresponding expense attributable to the other member as agreed by the affected members. Periodically, other operational expenses such as franchise fees, taxes, pole attachment charges, metered usages, engineering, record keeping, marketing, legal fees, accounting, and billing shall be reviewed by the members' Staff and, if necessary, any needed addendum or amendment to this Agreement may be prepared and presented to the governing body of each member for consideration. In addition, amendments to this Agreement are contemplated as new situations or changes in law are encountered. Each revision shall be subject to review and approval of each member's governing body. Whenever an individual member contracts with any third -party for services to the NETWORK benefiting only that member, such contracting member shall be solely responsible for paying the third -party for the services. In such instance, the non - contracting members shall not be responsible or held liable for payment to such third - party and the contracting member shall indemnify and hold the non -contracting members harmless for the expenditure. Should circumstances dictate that one member will contract for work or services for the NETWORK that will benefit other members and the affected members, through their Staff or their governing body depending upon their respective purchasing authority, approve of such contract, the costs of such work or services shall be shared between the affected members in accordance with the sectionalization and ownership apportionment of the NETWORK as provided herein and consideration of the proportion of benefit to each affected member. Notwithstanding the foregoing, affected members shall have the option of being included as a party to any such contracts for work or services for the NETWORK. SECTION 10. Upgrade Expenses. Whenever upgrades to the NETWORK are required for its continued usefulness, all affected members shall approve any expenditure and share the associated expense in the same proportions as their ownership interest in the affected portion(s) or section(s) of the NETWORK. Page 7 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doe BK: 2901 PG: 1158 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK SECTION 11. Taxes. Assessments and Charaes. Except as otherwise provided herein, no member shall tax, assess, or charge any other member for any routine, recurring assessment, fee, or charge arising from ownership, operation, or use of the NETWORK or any portion of the NETWORK, such as but not limited to, license fees, fees for pole attachments or use of rights-of-way, or franchise fees, unless otherwise agreed in writing by the affected member(s) or as may be required by current or future law or other pertinent regulation. Each member shall pay when due its share, determined in accordance with the sectionalization and ownership apportionment of the NETWORK as provided herein, of any and all NETWORK taxes, assessments, fees, and charges of any kind whatsoever lawfully levied or assessed. The total of any such payments may be remitted by one member on behalf of the CONSORTIUM upon agreement among the members, with reimbursement from the other members for their respective share. All taxes, assessments, fees, and charges shall be paid by the members in accordance with the cost sharing provisions of this Agreement, except to the extent that the taxes, assessments, fees, and charges are paid or reimbursed by a third -party. SECTION 12. Revenue Sharing. As optical fibers or services of the NETWORK are licensed to third -parties, the revenue from such licensing shall be shared by the members in a logical, fair, and reasonable manner calculated by using the data for the percentage of each member's ownership interest in the NETWORK sections and facilities through which the licensed fiber or service travels. Such revenues shall be collected by the licensing or designated member and routinely distributed to the appropriate members. Distribution shall be as funds are received or as otherwise agreed between the affected members. The revenue apportionment among the members shall be determined when a License Agreement is established and thereafter as may be adjusted at Reconciliation. SECTION 13. Payments. A. Payments to Members. Any payments due a member by another member shall be paid pursuant to the Florida Local Government Prompt Payment Act. B. Payments to Contractors. If a third -party contractor is used for the installation or maintenance of any portion of the NETWORK, final payment shall not be made to the contractor until as -built drawings, test results, or report from the contracting member(s) has been reviewed and approved by all affected members. Failure by any affected member to object or otherwise respond within thirty (30) days of receipt of the drawings or such reports by the member shall be deemed to be an approval of same by the non -responding member Page 8 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1159 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK 11 C. , Payment of Recurring Bills. As the CONSORTIUM becomes responsible for recurring assessments such as franchise fees, taxes, pole attachment charges, metered usages, and the like, the members' Staff shall coordinate and assign one member the task of paying such assessments as they become due. The paying member shall be reimbursed, minus its obligated share, by the other members at Reconciliation. SECTION 14. Licensing to Third -Parties. This provision recognizes the excess capacity of the NETWORK, the growing demand for the use of such facilities by public and private entities, and the need to establish revenue sources for the recovery of expenses related to the installation and maintenance of the NETWORK. In addition, this provision provides for licensing to third -parties the use of the NETWORK cable casing for purposes of electric utility system grounding. Any member may enter into a License Agreement with one or more third -parties for use of that member's NETWORK fiber and/or facilities. License Agreements that contemplate the use of fiber or facilities of more than one member shall include all affected members as parties. License Agreements shall not contain provisions that would result in impairment of normal NETWORK operation. Final approval and execution of License Agreements shall be by each affected member's governing body. Unless provided otherwise in the License Agreement, the primary contact member dealing with a third -party regarding licensing shall be responsible for the negotiations, maintaining, and administering the License Agreement, as well as collecting payments due from the Licensee. In addition to fiber License Agreements, members are authorized to enter into License Agreements for use of the NETWORK cable casing and other facilities by third -parties for purposes of electric utility system grounding. Any costs associated with the connection of a Licensee's facilities to the NETWORK shall be governed by the License Agreement with consideration of the negotiated license fees, term length, and fiber quantity licensed. Sub -licensing of fiber or other facilities by a Licensee shall only be permitted following submission of the proposal to and approval by the governing body of the licensing member(s). Such proposal shall include all information requested by the licensing members, including, but not limited to, the identity of the proposed sub -licensee, the nature of the proposed NETWORK use, and the location and nature of the connection(s). Revenue derived from all License Agreements shall be shared by the members in accordance with the sectionalization and ownership apportionment of the NETWORK as provided herein. Page 9 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1160 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK Members entering into agreements with third -parties shall be solely responsible for any and all obligations contained in such agreements and nothing in any third -party agreement shall be binding or enforceable against any other member unless such member is a party to such agreement and consents to such obligation. SECTION 15. Modifications to NETWORK. Should the planned activities of a member require NETWORK upgrades or modifications to accommodate such member's use of the NETWORK, that member shall be solely responsible for all costs associated with such upgrades and modifications, except to the extent any other member(s) agree to participate in a cost- sharing arrangement for the upgrades or modifications. Any member proposing a NETWORK upgrade or modification, including but not limited to, any new connection, shall notify and submit all applicable construction documents to the other members at least thirty (30) calendar days prior to the date construction activities are expected to commence. The other members shall review the proposal as soon as practicable and promptly provide comments, if any, on the proposed upgrade and modification to the proposing member. Whenever a member plans to extend a fiber optic cable the other members shall be provided the option to participate in the project unless the proposing member requires 100% usage of such fiber extension. If other members elect to participate in the fiber extension, the construction costs shall be shared by all participating members based on the proportionate ownership share in such fiber extension to be assigned to each member. Any NETWORK upgrades, modifications, or connections that may cause disruption or interference of NETWORK service shall be coordinated with the other members and any affected Licensees such that the work is performed at a time so as to minimize disruption and interference of NETWORK service. SECTION 16. Relocation of NETWORK. If relocation of any portion of the NETWORK is required by a member, all expenses of such relocation, including but not limited to engineering, construction, materials, and labor, shall be borne by the member requiring the relocation, except to the extent that another member may agree to participate in such relocation for their own benefit. If relocation of any portion of the NETWORK is required by a third -party (e.g., Florida Department of Transportation or other governmental agency or public utility doing work in the rights-of-way), the net expenses of such relocation, including but not limited to engineering, construction, materials, and labor, shall be shared by the affected members pursuant to the expense sharing provisions of this Agreement after deduction for all applicable payments, reimbursements, allowances, and credits given or made for such NETWORK relocation by any third -party. SECTION 17. Construction Locates. The City shall add any underground portions of the NETWORK within its utility service areas (electric, water, and wastewater) to its membership in Sunshine 811. The County Page 10 of 19 2015.2.06.Edited.Fiber Optic Agreemcnt.CLEAN.doc BK: 2901 PG: 1161 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERIC shall add all other areas of the NETWORK to its membership in said organization. In accordance with procedures established by Sunshine 811, the City and County shall receive requests for locates and perform, or cause the performance of, the associated work necessary to determine the location of such underground portions of the NETWORK. The members shall cooperate to develop and maintain a current map depicting which member will be responsible for locates in the various sections of the NETWORK. If damage occurs to the NETWORK, the net costs to repair the damage shall be shared by the affected members in accordance with the cost sharing provisions of this Agreement after deduction for all payments, reimbursements, allowances, and credits given or made by any third -party causing or responsible for the damage. Members shall not be entitled to payment from each other for damages to the NETWORK due to inaccurate or inadequate locates. Any costs to repair damage to the NETWORK caused by work performed by or for a member notwithstanding an accurate locate shall be the sole responsibility of that member. SECTION 18. Grants. Should a member receive grant funds to assist with the construction or maintenance of the NETWORK, any provisions, limitations or restrictions associated with the grant(s) shall not affect or apply to the other members not a party to the grant. In addition, no grant provisions, limitations, or restrictions shall in any way affect the ownership interests of the other members in the NETWORK or restrict or affect the intended use of the NETWORK by the other members or Licensees. Should a member submit an application for grant funding associated with the NETWORK and such application requires the concurrence of the other members, such concurrence shall not be unreasonably withheld so long as such concurrence does not limit, restrict, or in any way affect ownership or use of the NETWORK by the member providing its concurrence and such concurrence does not subject or extend any requirements, provisions, or liability associated with the grant application to the member providing its concurrence. Whenever application is proposed by a member for a grant which will or can benefit one or more other members, such other members shall have the option to become a co -applicant and participant for the grant unless doing so would detrimentally affect the likelihood of approval. Members not participating in a grant shall not be liable in any manner whatsoever for repayment of grant funds which have been received by a member. The member receiving such a grant(s) associated with the NETWORK shall be solely responsible for satisfying any and all reporting requirements associated with the receipt of such grant funds, submittal of any and all documentation necessary for reimbursement of expenses under any associated grant agreement, and repayment of any grant funds received by such member that are required by the granting agency to be repaid for whatever reason, unless otherwise agreed by the other members. Page 11 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1162 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK SECTION 19. Insurance. The members acknowledge that the NETWORK is not generally covered by a commercial property insurance policy, with limited exceptions. Any costs associated with repairs to or restoration of the NETWORK that are not covered by insurance or otherwise reimbursed by any third -party shall be shared among the members pursuant to the cost sharing provisions of this Agreement. Property insurance coverage for any section or portion of the NETWORK jointly owned by two or more members may be acquired when all members having an ownership interest in such section or portion agree on the need for property insurance coverage. Should property insurance coverage be acquired, the premium and other costs thereof shall be shared among the members pursuant to the cost sharing provisions of this Agreement. However, nothing contained herein shall prohibit any member from acquiring insurance coverage for any section or portion of the NETWORK at their sole expense should they so desire. Each member shall bear the risk of its own actions and inaction, as it does with its day- to-day operations, and determine for itself what kinds of insurance, including but not limited to liability insurance coverage, and in what amounts, it should carry relative to the associated risks arising out of ownership and use of the NETWORK. SECTION 20. Indemnification. Each member, to the extent permitted by law and subject to the limitations of section 768.28, Florida Statutes, and any subsequent revisions thereto, shall indemnify and hold harmless the other members and their respective elected officials, officers, and employees against any claim, action, loss, damage, injury, liability, cost, or expense, including but not limited to reasonable attorneys' fees and court costs, arising out of or caused by the negligence of the indemnifying member in performance of this Agreement or such member's installation, use, or maintenance of the NETWORK. Neither this nor any other provision of this Agreement shall be deemed a contractual waiver of sovereign immunity by any member or of the limitations of liability provided by section 768.28, Florida Statutes, contractual or otherwise. SECTION 21. Damage Caused by Disasters. Should all or any portion or section of the NETWORK be damaged or destroyed by a natural or man-made event to the extent that the cost of repair or replacement exceeds 50% of the original installation costs of the affected portion(s) or section(s), the owning member(s) shall determine if the NETWORK or such affected portion(s) or section(s) will be repaired or replaced, recognizing the need for agreement when more than one member is affected and cost sharing is desired. However, should one or more affected member(s) elect to not participate in the repair or replacement any other member(s) desiring to make the repairs and replacements shall have an option to purchase the non -participating member(s) interest in the affected NETWORK portion(s) or sections(s) at an agreed price established as provided in Section 4 above with consideration given Page 12 of 19 20152.M.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1163 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK for the actual documented cost of the repairs and replacements and payments or reimbursements from third -parties. Notwithstanding the foregoing provisions, those portions of the NETWORK which are: (1) licensed for use to a Licensee with a License Agreement requiring replacement of the associated portion of the NETWORK for the continuation of such License Agreement, and/or; (2) used for operation of the 800 MHz radio system; shall be repaired or replaced in order to provide for the continuation of the License Agreement(s) and/or operation of the radio system. In such instance, the costs of the repairs and replacements shall be shared among the members pursuant to the cost sharing provisions of this Agreement unless otherwise agreed by the affected members, and with consideration given for any payments or reimbursements by third -parties. SECTION 22. Term and Termination. The term of this Agreement shall be for one (1) year from the Effective Date and shall automatically renew for successive one (1) year terms except for any member that gives the other members written notice of its intent to withdraw from the Agreement at least one -hundred twenty (120) days prior to the end of the then current term. Such notice of intent to withdraw shall be made in writing and shall be served on the other members in accordance with the notice provisions of this Agreement. This Agreement shall otherwise remain in full force and effect for the non -withdrawing members so long as at least two (2) members remain. This provision is in addition and supplemental to but does not replace or pre-empt any other provisions of this Agreement regarding termination by a member. Upon notice of a member's intent to withdraw from this Agreement, the remaining member(s) shall have the option to purchase the withdrawing member's ownership interest in all or any portion of the NETWORK as provided in Section 4 above and upon such other terms and conditions as may be negotiated between the withdrawing member and the other member(s). Should the non -withdrawing member(s) fail to exercise such option to purchase within 60 days after notice by the withdrawing member provided for above, the withdrawing member may offer its ownership interest to any third -party qualified to own such interest so long as such third -parry's ownership would have no detrimental affect on the other members and the status or continued operation of the NETWORK. On or after the effective date of the withdrawal and without liability on the part of the remaining members, the withdrawing member shall be disconnected from the NETWORK unless or until alternate arrangements are made for continued NETWORK use based on applicable rates and charges (e.g., License Agreement, service contract with provider). SECTION 23. Dispute Resolution. The members shall negotiate in good faith Agreement or under any instrument made Failing resolution, the affected members 20I5.2.06.Edited.Fiber Optic Agreement.CLEAN.doc resolution of any dispute arising under this to carry out the terms of this Agreement. shall submit the dispute to non-binding Page 13 of 19 BK: 2901 PG: 1164 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK mediation with a Florida circuit court certified civil mediator with the cost of such mediation divided equally between such affected members. If the dispute is not resolved by such mediation, the affected members shall attempt resolution by use of the Florida Governmental Conflict Resolution Act, section 164.101, Florida Statutes, et seq., before seeking redress in a court of competent jurisdiction. Each member shall bear their own attorneys' fees and costs in resolution of any dispute. SECTION 24. Classification as Telecommunications Provider. If the CONSORTIUM or any member receives notice or otherwise learns that the CONSORTIUM or any member will be or has become classified as a telecommunications company, telecommunications carrier, telecommunications service, or any other telecommunications entity, or will or has come under the jurisdiction of existing or future regulation by any State or Federal regulatory agency as a telecommunications company, including but not limited to the Federal Communications Commission or the Florida Public Service Commission, the members' Staff shall promptly meet upon notice of such event and cooperate so as to determine if it is necessary to oppose or remove such classification and, if so, whether and to what extent this Agreement can be amended by the members to avoid or remove such classification and to accordingly make appropriate recommendations to their respective governing bodies. If the members' governing bodies determine that it is appropriate or necessary to oppose or remove such classification and this Agreement cannot be so amended or if there is no agreement by the members' governing bodies as to such amendment, then any member may withdraw from this Agreement in accordance with its provisions. SECTION 25. No Third -Party Beneficiaries. This Agreement shall inure to the sole benefit of and shall be enforceable solely by the members and, with respect to any indemnification or limitation of liability provisions, to the benefit of each member's officers, employees and agents. No other person or entity shall be considered a third -party beneficiary to this Agreement. SECTION 26. Assignment. Except as otherwise provided herein, neither this Agreement nor any right, interest, or obligation hereunder shall be sold, assigned, transferred, or otherwise alienated or disposed of by any member without the prior written consent of the governing bodies of the other members, which consent shall be in the sole discretion of each member's governing body. Under no circumstances shall any assignment be made that would result in a detrimental impact on that status or operation of the NETWORK or any tax exempt status of any member or the development or operation of the NETWORK. SECTION 27. Notices. Any notice, request, instruction, demand, consent, or other communication required or permitted to be given under this Agreement shall be in writing and shall be delivered either by hand or by certified mail, postage prepaid, and certified return receipt Page 14 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1165 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK requested to the following address or such other address as the members may provide to each other in writing: To SCHOOL DISTRICT: Superintendent School District of Indian River County 1990 25 h Street Vero Beach, FL 32960 Telephone: 772-564-3000 Facsimile: 772-569-0424 With a copy to: Director of Facilities School District of Indian River County 605562 Id Avenue Vero Beach, FL 32967 Telephone: 772-564-5017 Facsimile: 772-564-5109 To COUNTY: County Administrator Indian River County 1800 27d' Street Vero Beach, FL 32960 Telephone: 772-567-8000 Facsimile: 772-770-5095 With a copy to: Director of Public Works Indian River County 1800 27d' Street Vero Beach, FL 32960 Telephone: 772-567-8000 Facsimile: 772-770-5095 To CITY: City Manager City of Vero Beach 1053 2e Place 32960 P. O. Box 1389 Vero Beach, FL 32961-1389 Telephone: 772-978-4710 Facsimile: 772-778-3856 With a copy to: Director of TSD City of Vero Beach 3455 Airport West Drive 32960 P. O. Box 1389 Vero Beach, FL 32961-1389 Telephone: 772-978-5410 Facsimile: 772-978-5490 SECTION 28. Entire Agreement and Amendment. This Agreement represents the entire agreement between the members and supersedes and replaces in its entirety the 1999 Agreement and all other prior Page 15 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1166 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK agreements and representations between the members, whether written or oral, with respect to the subject matter of this Agreement. No provision of this Agreement may be changed or amended except by written agreement approved by each member's governing body and signed by each member's duly authorized representative SECTION 29. Waiver of Terms or Conditions. Any term or condition of this Agreement may be waived by the member that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the member waiving such term or condition. Any waiver by any member of any condition, or of the breach of any provision, term, covenant, representation, or warranty contained in this Agreement, in any one or more instances, shall not invalidate this Agreement, nor shall such waiver be deemed to be nor construed as a furthering or continuing waiver of any such condition, or of the breach of any other provision, term, covenant, representation or warranty of this Agreement. Except as otherwise provided herein, the failure of a member to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights. A waiver by a member shall not invalidate this Agreement, nor shall such waiver be construed as a waiver of any other covenant, condition, representation, or warranty. A waiver by a member of the time for performing any act shall not constitute a waiver of time for performing any other act or the time for performing an identical act required to be performed at a later time. SECTION 30. Severability. Should any portion, provision, section, or subsection of this Agreement be held to be invalid by a court of competent jurisdiction, that fact shall not affect or invalidate any other portion, provision, section, or subsection and the remaining portions of this Agreement shall remain in full force and effect without regard to the portion, provision, section, or subsection invalidated. SECTION 31. Parties Bound. This Agreement is binding upon, inures to the benefit of, and is enforceable by the members and their respective successors and permitted assigns. SECTION 32. Counterparts. This Agreement may be executed in three (3) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. SECTION 33. Effective Date. This Agreement shall be in full force and effect as of the Effective Date first entered above, which shall be the date upon which the last member executes this Agreement. SIGNATURE PAGES FOLLOW Page 16 of 19 2015.2.06.Edited.Fiber Optic Agreement.CLEAN.doc BK: 2901 PG: 1167 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK SCHOOL DISTRICT OF INDIAN RIVER COUNTY SCHOOL BOARD OF INDIAN RIVER COUNTY, FLORIDA By: att ew McCain Chairman Attest: Superintend Dated this .Q^�j yj day of '<v.v. c 1 2015. Page 18 of 24 Action D - 6/23/2015 BK: 2901 PG: 1168 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK INDIAN RIVER COUNTY INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS ATTEST: Jeffrey R. Smith, Clerk of Court and Comptroller B1� By4e�s Deputy Clerk ley S. Davis, Chairman •J�iZV ,,_,proved: ,Tune 16, 2015 Approved as to form an sufficiency: *: 92, •• ,oma . Dylan Reingold ���gcourity;�' County Attorney •""' Page 18 of 19 2015 2 06 Edited Fiber Optic Agreement CLEAN (2) in recordable form.doc BK: 2901 PG: 1169 CITY OF VERO BEACH ATTEST: � 1 Tammy K. Vocki City Clerk A TRUE COPY li CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK II Mayor U1 Dated this �� day of , 2015. Approved as to form and legal sufficiency: U\=��17 &M�r Way a R. Coment City Agorney Approved as to technical requirements: -77d IJEL Ted Fletcher Electric T & D Director 2015.2.06.Edited.Fiber Optic Agrcement_CLEAN.doc Approved as conforming to municipal policy: J es R. O'Connor City Manager Page 19 of 19 BK: 2901 PG: 1170 A TRUE COPY CERTIFICATION ON LAST PAGE11: J.R. SMITH, CLERK APPENDIX A PARAMETERS FOR ESTABLISHING SECTIONS OF PLANT A unique section number will be assigned to the facilities that comprise the NETWORK based on the following events: • There is a change in the size of the fiber optic cable • There is a change in the ownership split of the fiber optic cable • There is a change in the performance parameters of the fiber optic cable • There is a change in the structure carrying the cable (pole line, conduit, buried) • There is a change in the year of placement of the fiber optic cable • There is a point of service provision • There is a point of expected service provision • A major geographic point of significance is crossed (railroad, intercostal, etc.) • A major change in the capacity of the structure occurs • Some significant transmission boundary or benchmark is encountered The member organizations will develop and adopt a standard for numbering sections within the first year that the CONSORTIUM is established. Fiber optic cable pricing shown on the costing model, is sourced from the current IRC master contract agreement with Precision Contracting Services Inc. ( PCS ). This is current contracted fiber optic cable pricing, and is subject to adjusted cost changes when the PCS master contract is re -negotiated. Joint Fiber Optics Project - Interlocal Agreement Appendix A — Page 1 of 3 BK: 2901 PG: 1171 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK Fiber Optic Costing Model Aerial Fiber Optic Cable - Single -mode - Loose Tube Fiber Optic Cable - 12 ct. Fiber SM LT Aerial - Per Linear Foot Cost: $1.35 Fiber Optic Cable - 24 ct. Fiber SM LT Aerial - Per Linear Foot Cost: $1.45 Fiber Optic Cable - 48 ct. Fiber SM LT Aerial - Per Linear Foot Cost: $1.65 Fiber Optic Cable - 72 ct. Fiber SM LT Aerial - Per Linear Foot Cost: $1.95 Fiber Optic Cable - 96 ct. Fiber SM LT Aerial - Per Linear Foot Cost: $2.25 Fiber Optic Cable - 144 ct. Fiber SM LT Aerial - Per Linear Foot Cost: $2.75 Aerial Fiber Optic Cable - Single -mode - ADSS Fiber Optic Cable - 12 ct. Fiber SM ADSS Aerial - Per Linear Foot Cost: $1.65 Fiber Optic Cable - 24 ct. Fiber SM ADSS Aerial - Per Linear Foot Cost: $1.85 Fiber Optic Cable - 48 ct. Fiber SM ADSS Aerial - Per Linear Foot Cost: $2.10 Fiber Optic Cable - 72 ct. Fiber SM ADSS Aerial - Per Linear Foot Cost: $2.45 Fiber Optic Cable - 96 ct. Fiber SM ADSS Aerial - Per Linear Foot Cost: $2.75 Fiber Optic Cable - 144 ct. Fiber SM ADSS Aerial - Per Linear Foot Cost: $2.95 Underground Fiber Optic Cable - Single -mode - Loose Tube Fiber Optic Cable - 12 ct. Fiber SM LT Underground - Per Linear Foot Cost: $1.15 Fiber Optic Cable - 24 ct. Fiber SM LT Underground - Per Linear Foot Cost: $1.25 Fiber Optic Cable - 48 ct. Fiber SM LT Underground - Per Linear Foot Cost: $1.45 Fiber Optic Cable - 72 ct. Fiber SM LT Underground - Per Linear Foot Cost: $1.65 Fiber Optic Cable - 96 ct. Fiber SM LT Underground - Per Linear Foot Cost: $1.95 Fiber Optic Cable - 144 ct. Fiber SM LT Underground - Per Linear Foot Cost: $2.25 Underground Fiber Optic Cable - Multi -mode - Loose Tube Fiber Optic Cable - 12 ct. Fiber MM LT Underground - Per Linear Foot Cost: $2.25 Fiber Optic Cable - 24 ct. Fiber MM LT Underground - Per Linear Foot Cost: $3.50 Fiber Optic Cable - 48 ct. Fiber MM LT Underground - Per Linear Foot Cost: $6.15 Fiber Optic Cable - 72 ct. Fiber MM LT Underground - Per Linear Foot Cost: $8.95 Fiber Optic Cable - 96 ct. Fiber MM LT Underground - Per Linear Foot Cost: $12.35 Fiber Optic Cable - 144 ct. Fiber MM LT Underground - Per Linear Foot Cost: $18.25 Fiber Optic Cable - Single -mode - Riser Rated ( OFNR ) Fiber Optic Cable - 12 ct. Fiber SM Riser - Per Linear Foot Cost: $1.85 Fiber Optic Cable - 24 ct. Fiber SM Riser - Per Linear Foot Cost: $2.75 Fiber Optic Cable - 48 ct. Fiber SM Riser - Per Linear Foot Cost: $5.75 Fiber Optic Cable - 72 ct. Fiber SM Riser - Per Linear Foot Cost: $7.95 Fiber Optic Cable - 96 ct. Fiber SM Riser - Per Linear Foot Cost: $10.00 Fiber Optic Cable - 144 ct. Fiber SM Riser - Per Linear Foot Cost: $13.95 Joint Fiber Optics Project - Interlocal Agreement Appendix A — Page 2 of 3 BK: 2901 PG: 1172 Fiber Optic Costing Model 51A] E OF FLORIDA INDIAN RIVER COUNTY THIS IS TO CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE IN THIS OFFICE sY1 FREV R SPI, CLERK D.C. DATE Fiber Optic Cable - Single -mode - Plenum Rated Fiber Optic Cable - 12 ct. Fiber SM Plenum - Per Linear Foot Cost: $2.25 Fiber Optic Cable - 24 ct. Fiber SM Plenum - Per Linear Foot Cost: $3.50 Fiber Optic Cable - 48 ct. Fiber SM Plenum - Per Linear Foot Cost: $7.95 Fiber Optic Cable - 72 ct. Fiber SM Plenum - Per Linear Foot Cost: $11.25 Fiber Optic Cable - 96 ct. Fiber SM Plenum - Per Linear Foot Cost: $14.15 Fiber Optic Cable - 144 ct. Fiber SM Plenum - Per Linear Foot Cost: $18.50 Fiber Optic Cable - Multi -mode - Riser Rated (OFNR ) Fiber Optic Cable - 12 ct. Fiber MM Riser - Per Linear Foot Cost: $1.90 Fiber Optic Cable - 24 ct. Fiber MM Riser - Per Linear Foot Cost: $3.75 Fiber Optic Cable - 48 ct. Fiber MM Riser - Per Linear Foot Cost: $8.75 Fiber Optic Cable - 72 ct. Fiber MM Riser - Per Linear Foot Cost: $13.25 Fiber Optic Cable - 96 ct. Fiber MM Riser - Per Linear Foot Cost: $17.75 Fiber Optic Cable - 144 ct. Fiber MM Riser - Per Linear Foot Cost: $25.25 Fiber Optic Cable - Multi -mode - Plenum Rated Fiber Optic Cable - 12 ct. Fiber MM Plenum - Per Linear Foot Cost: $2.25 Fiber Optic Cable - 24 ct. Fiber MM Plenum - Per Linear Foot Cost: $4.85 Fiber Optic Cable - 48 ct. Fiber MM Plenum - Per Linear Foot Cost: $11.55 Fiber Optic Cable - 72 ct. Fiber MM Plenum - Per Linear Foot Cost: $16.95 Fiber Optic Cable - 96 ct. Fiber MM Plenum - Per Linear Foot Cost: $22.75 Fiber Optic Cable - 144 ct. Fiber MM Plenum - Per Linear Foot Cost: $31.50 Joint Fiber Optics Project - Interlocal Agreement Appendix A — Page 3 of 3 1 a /3 0 / ^. ��09.j, f �,�' •OQ• COUNT E• '•'.