CONNECTGRADD
INTERLOCAL COOPERATION AGREEMENT
THIS INTERLOCAL COOPERATION AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into as of this
day of, 2007,
by and between the following counties : OHIO, DAVIESS, McLEAN, UNION, WEBSTER,
HANCOCK and HENDERSON (hereinafter referred to as "Party', or, collectively, as the
"Parties') each of which is a political subdivision of the Commonwealth of Kentucky
(hereinafter referred to as the "Commonwealth) .
WHEREAS, under the Interlocal Cooperation Act (the "Act"), Sections 65 .210 to
65.300, inclusive, of the Kentucky Revised Statutes as amended ("KRS"), any power or
powers, privileges or authority exercised or capable of exercise by a public agency (including a
city, a county or any other political subdivision of the Commonwealth) may be exercised
jointly with another public agency under an agreement (an "interlocal cooperation agreement")
for joint or cooperative action pursuant to the provisions of the Act, and such public agencies
may acquire, construct, maintain, add to and improve the necessary property, real and personal,
which is required in order to accomplish the public purposes set forth in such interlocal
cooperation agreement ; and
WHEREAS, the Act further authorizes the public agencies to create or utilize a
"separate legal or administrative entity," which entity may, on behalf of the participating public
agencies, have certain powers delegated to it as provided in the interlocal cooperation
agreement; and
WHEREAS, pursuant to KRS 58 .180, a governmental agency (which means any
division of the Commonwealth which is municipal corporation and political subdivision of the
Commonwealth) may create a non-profit corporation pursuant to the provisions of KRS
273 .161 to 273 .390, inclusive, to act as the agency and instrumentality and the constituted
authority of such governmental agency in the acquisition and financing of any public project
which may be undertaken by such governmental agency pursuant to the provisions of
Kentucky law and thus accomplish a public purpose of such governmental agency ; and
WHEREAS, the Parties have agreed it is in their mutual interest to pursue
cooperatively the construction of broadband internet infrastructure as well as broadband
intemet service within their jurisdiction, in part through the operation of a Corporation which
project promotes the economic, educational, and public safety interests of the residents within
their jurisdictions ; and
WHEREAS, KRS 224A .112 and 224A .1121 of the Kentucky Infrastructure Authority
Act provides a source of funding to governmental agencies for the construction and acquisition
of infrastructure projects ; which fund is called the infrastructure revolving fund. Said fund
contains an account called the broadband deployment account the purpose of which is to assist
governments and private sector entities in constructing infrastructure for the deployment of
broadband service to unserved areas of the Commonwealth according to the regulations
promulgated by the Kentucky Infrastructure Authority (hereinafter "KIA") .
WHEREAS, the Parties have, in fact, jointly created a non-profit Corporation which is
referred to hereinafter as the "Corporation", but the legal name of which is ConnectGRADD,
Inc.; and
WHEREAS, the legislative bodies of the aforementioned Parties have mutually agreed
that the Corporation shall have the power to submit an application to the KIA for a grant from
the Infrastructure Revolving Fund, Broadband Deployment Account, ("IRFBDA") as well as
other federal, state, and other sources, on behalf of said Parties for the development of a
regional broadband infrastructure throughout the seven county region known as the Green
River Area Development District ; and
WHEREAS, the legislative bodies of the aforementioned Parties have mutually agreed
that the Green River Area Development District, Inc ., shall serve as administrative agent of the
Corporation to facilitate grant applications, collection of revenues, testing of infrastructure and
any other ministerial task necessary to effectuate this agreement; and
WHEREAS, the legislative bodies of the aforementioned Parties have mutually agreed
that the Corporation shall have the authority negotiate and execute a contract with Digital
Connections, Inc ., and/or Cinergy Communications, Co ., Inc ., or other similar entity or entities
for the construction of broadband infrastructure and provision of broadband service throughout
said region, provided that said contract be reviewed and approved by each Parties' Fiscal Court
prior to execution.
NOW THEREFORE, be it ordered hereto by the Parties as follows :
1 . The Corporation was created for the specific single purpose of acquiring and
financing construction of infrastructure for the deployment of broadband service
throughout the GRADD region so as to promote the improvement of government
service delivery, job creation, business growth, economic development, and streamlined
interaction between governments, constituents, and governmental agencies . The
Corporation is comprised of seven directors who are either public officials of each party
as ex officio members, or persons appointed by each Party or by public officials of each
Party as required by KRS 58 .180.
2. The purpose of this Agreement is to allow the Corporation to develop and submit
proposals for the project described in the preamble above to the Kentucky
Infrastructure Authority ("KIA") for IRFBDA funds and to seek other funds as may be
identified to assist in the acquisition, development, and management of the project .
3. Each Party with the power to apply, pursuant to KRS 224A .080, for funds under the
IRFBDA HEREBY GRANTS such power, which is irrevocable for the duration of the
project named herein and as may subsequently be authorized by the Parties, to the
Corporation. The Corporation shall hereafter make application on behalf of all Parties
to the KIA for funds in the IRFBDA for the specific ConnectGRADD project named
herein and as may subsequently be authorized by the Parties . The Corporation is also
expressly authorized to make or agree to changes in such application, or to enter into
any agreement necessary or convenient to effect or assist in the application process .
The Parties grant of power in this Agreement is for the ConnectGRADD project only ;
the Parties do not waive their right to apply to the KIA for funding under the IRFBDA
for any other project, whether as a single-county or acting in concert with each other or
any other county . If this Agreement is determined by a court of competent jurisdiction
to be null and void the Parties agree to dissolve the Corporation within a reasonable
period of time . If the Corporation has not received IRFBDA funding through the KIA
within 6 (six) months from the date this Agreement is executed, the Parties agree that
they may either collectively or individually withdraw from this Agreement . Should one
of the Parties desire to withdraw from participation in the Corporation, then the
remaining Parties may jointly choose a successor member or members of the
Corporation . Any Party that withdraws will not be entitled to the return of any property
or money advanced to the Corporation . All revenue sharing and employment benefit
percentages, if applicable, shall be redistributed proportionally to the remaining Parties
to this Agreement . The Parties may provide by a mutual written agreement between
them and the Corporation that the Corporation may be dissolved . Such mutual written
agreement may provide that all funds, property, and other assets held by the
Corporation shall be returned to the Parties in the same proportion as funds, property or
other assets were contributed . Such written agreement must provide that no dissolution
shall be made until such time as all legal obligations of the Corporation shall be
satisfied and all existing commitments fulfilled .
If, in the sole determination of the Director/Secretary of the KIA, the Corporation
cannot complete successfully the projects for which it was created, the Parties and
Corporation members agree to effect the immediate transfer of all the right, title and
interest in the project to the KIA in order to salvage all possible economic development
efforts funded by this Authority .
4 . Each Party with the authority to contract HEREBY GRANTS to the Corporation
such authority to negotiate and execute a contract with Digital Connections, Inc . and/or
Cinergy Communications Co ., Inc ., or other similar entity or entities for the
construction of broadband infrastructure as well as the provision of broadband service,
provided that said contract be reviewed and approved by each Parties' Fiscal Court
prior to execution . The Parties grant of power in this Agreement is for the
ConnectGRADD project only and the Parties do not waive their right to contract for
broadband infrastructure construction or service for any other project, whether as a
single county or acting in concert with each other or any other county .
5(a). Manner of Financing The Parties anticipate that sources of funding for the
Connect GRADD project described herein shall be by way of direct contributions from
each Parties'fiscal court, and through the IRFBDA administered by the Authority . It is
understood that IRFBDA funds will be used solely for the development of broadband
3
infrastructure including acquisition, engineering design, project construction and other
related expenses as approved by the Authority . The parties further anticipate that
customer service contracts between the service provider and individual subscribers will
provide for a service fee and/or license fee to create revenue for the project .
5(b) . Revenue Sharing . The Parties agree that until all obligations of the corporation
have been met, the Corporation shall be responsible for collecting all revenues,
including, but not limited to, Service Fees and License Fees, from the project .
The Service Fee shall be a flat fee added to the monthly customer service bill of
broadband subscribers . Said Service Fee shall be set by the Corporation, after approval
of the Parties' Fiscal Courts, or by the KIA according to statute . The License Fee shall
be composed of an amount equal to a percentage, set by the Corporation upon approval
by the Parties, of the base monthly customer service rate of $29 .95 per month . The
Service Fees received by the Corporation shall be dedicated to any outstanding
obligations owed the KIA . Any revenues derived from License Fees shall be first
applied to debt service not satisfied by the Service Fee, with any surplus to be divided
among the Parties in proportion to their direct contribution in financing the project . At
present the amount of contributions from each county is still under discussion and the
Parties agree to amend this agreement once contributions have been made to reflect
each Party's share of License Fee Revenue .
The Corporation shall receive all License and Service Fee payments from the service
provider by the last business day of each month for the prior month . The Corporation
agrees to distribute all funds due to each Party by the 10 th day of the month next
proceeding the month payments are received from the service provider . Further, the
Corporation shall report to each Party on a monthly basis all revenues received under
the preceding month, as well as any payments made to debt service, and of significant
events (such as changes in service rates or financing) which may affect the future
revenue projections .
5(c). Use of Other Revenue . The Parties agree that any revenues received from the
project, including that derived from the sale or lease of equipment or other personal
property other than from sources outlined in Section 5(a) or 5(b) shall remain with the
Corporation for the costs of administration and for debt service on any notes authorized
by the parties and entered into by the Corporation . Any expenditure of such funds
beyond those necessary for routine administration fees and debt service shall be
distributed directly to the Parties as set forth above .
5(d) . Board Members : The Board shall be comprised of seven (7) members . The Board
shall be comprised of either public officials of the Parties or by an appointee of each
Party or by an appointee of a public official of each Party .
5(e) . Local Contracting : The Board shall encourage the utilization of local contractors
from the participating counties in both the development of infrastructure and provision
of service .
4
6. Termination : This Agreement shall terminate with no further action required of any
one or more of the Parties upon the final completion date of the project, unless
otherwise extended by the Parties . The final completion date of the project is the date
upon which all the project property has been constructed and tested as fully operational
and all outstanding commitments of the Corporation have been fulfilled . At the
completion of the project as set forth above, all property located within the jurisdiction
of the Parties shall vest in the respective Party in which said property is located .
7. Governing Law: This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Kentucky . If any provision of this Agreement
is held to be in conflict with any applicable statute or rule of law, or which otherwise
held to be unenforceable, the invalidity of such portion shall not affect any or all of the
remaining portions of this Agreement .
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and
acknowledged by officers or officials duly authorized by the respective governing bodies of the
Parties hereto, as of the date first written above .
UNION COUNTY
BY:
TITLE :
COMMONWEALTH OF KENTUCKY
COUNTY OF
)
)SCT
)
The foregoing Agreement has been acknowledged and sworn to before me by
of Union
, as
2007,
for
and
on behalf of
County, Kentucky, on this theday of,
said County .
Notary Public
My Comm . Expires :
OHIO COUNTY
BY:
TITLE :
5
COMMONWEALTH OF KENTUCKY
)
)SCT
COUNTY OF)
The foregoing Agreement has been acknowledged and sworn to before me by
of Ohio
as
2007,
for
and
on behalf of
,
County, Kentucky, on this the day of
said County .
Notary Public
My Comm . Expires:
MCLEAN COUNTY
BY:
TITLE :
COMMONWEALTH OF KENTUCKY
COUNTY OF
)
)SCT
)
The foregoing Agreement has been acknowledged and sworn to before me by
of McLean
, as
2007,
for
and
on behalf of
,
County, Kentucky, on this the day of
said County .
Notary Public
My Comm. Expires :
DAVIESS COUNT
BY:
TITLE :
6
COMMONWEALTH OF KENTUCKY
COUNTY OF
wtol,ESS
)SCT
d sworn t before me by
ore
recent has been % •ow g
of Daviess
,as
, 2007, for and on behalf of
5('
day
o
County, Kentucky, on this the
I & g.
said County .
ubli l~
Comm . :ipi es :
'
Ia1osl 09
HENDERSON COUNTY
BY:
TITLE :
COMMONWEALTH OF KENTUCKY
)SCT
COUNTY OF)
The foregoing Agreement has been acknowledged and sworn to before me by
of Henderson
as
,
2007,
for
and
on behalf of
day
of
County, Kentucky, on this the
said County.
Notary Public
My Comm . Expires :
WEBSTER COUNTY
BY:
TITLE :
7
)
)SCT
COUNTY OF)
COMMONWEALTH OF KENTUCKY
The foregoing Agreement has been acknowledged and sworn to before me by
of Webster
, as
County, Kentucky, on this the day of, 2007, for and on behalf of
said County.
Notary Public
My Comm . Expires:
HANCOCK COUNTY
BY:
TITLE :
COMMONWEALTH OF KENTUCKY
COUNTY OF
)
)SCT
)
The foregoing Agreement has been acknowledged and sworn to before me by
of Hancock
, as
County, Kentucky, on this theday of , 2007, for and on behalf of
said County .
Notary Public
My Comm . Expires:
PREPARED BY :
Josh Searcy
THACKER, BICKEL, HODSKINS
8
& THACKER, LLP
209 West Fourth Street
P. O . Box 39
Owensboro, Kentucky 42302-0039
Phone: (270) 926-4500
Fax : (270) 926-4576
J :\CLIENTS\GRADD\Interlocal Cooperation Agreement (12-5-06) .doc
9