§2370.33. Failure to perform
A.A grant recipient forfeits the amount of a grant received if the grant recipient fails
to perform, in material respect, the obligations established in law or in the grant agreement.
A grant agreement shall last, at a minimum, for the duration of broadband project
construction and, or longer, in accordance with the grant agreement, but not to exceed five
years after construction completion. A grant recipient that fails to provide the minimum
advertised connection speed and cost at the advertised rate shall forfeit any grant funds, up
to the entire amount received through the GUMBO 2.0 program. The office shall use its
discretion to determine the amount forfeited. A grant recipient that forfeits amounts
disbursed in accordance with this Subpart is liable for
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§2370.33. Failure to perform
A. A grant recipient forfeits the amount of a grant received if the grant recipient fails
to perform, in material respect, the obligations established in law or in the grant agreement.
A grant agreement shall last, at a minimum, for the duration of broadband project
construction and, or longer, in accordance with the grant agreement, but not to exceed five
years after construction completion. A grant recipient that fails to provide the minimum
advertised connection speed and cost at the advertised rate shall forfeit any grant funds, up
to the entire amount received through the GUMBO 2.0 program. The office shall use its
discretion to determine the amount forfeited. A grant recipient that forfeits amounts
disbursed in accordance with this Subpart is liable for up to the amount disbursed plus
interest. The number of subscribers that subscribe to broadband services offered by the
broadband service provider in the project area shall not be a measure of performance under
the grant agreement for the purposes of this Subsection.
B. A grant recipient is not required to forfeit the amount of a grant received if the
grant recipient fails to perform due to a natural disaster, an act of God, a force majeure, a
catastrophe, a pandemic, the failure to obtain access to private or public property or any
government permits under reasonable terms, or such other occurrence over which the grant
recipient has no control.
C. Except as provided for in Subsection B of this Section, if a grant recipient fails
to perform and fails to return the full forfeited amount required pursuant to this Section, the
ownership and use of the broadband infrastructure funded by the GUMBO 2.0 program shall
revert to the division of administration.
D. Notwithstanding the provisions of this Section to the contrary, if a grant recipient
fails to complete a project in a material respect, the grant recipient, at the discretion of the
office, may be required to reimburse the state the actual cost to finish the project. The actual
cost to finish the project shall be determined by the office in consultation with the grant
recipient. The office shall not require a grant recipient that it determines has made a good
faith effort to complete a project to reimburse the state an amount greater than the remaining
GUMBO 2.0 cost per broadband-serviceable location as set forth in the grant recipient's
application.
E.(1) Any GUMBO 2.0 subgrantee also subject to deployment obligations elsewhere
in this state, including from programs such as the Rural Digital Opportunity Fund, the
Enhanced Alternative Connect America Model, the Rural Development Broadband
ReConnect Program, or any other similar program included in the BEAD deduplication
process, shall make an enforceable commitment as part of its GUMBO 2.0 subgrant
agreement not to default or otherwise fail to fulfill any such deployment obligation in this
state. The penalty for breach of this commitment shall be, as reimbursement for funding that
could have been awarded but for other federal program funding, payment to the state in the
amount equal to the total investment cost of all defaulted locations, as measured by the
Eligible Entity tool provided to the state by NTIA.
(2)(a) For the purposes of Paragraph (1) of this Subsection, the office shall determine
if a broadband provider has defaulted or otherwise failed to fulfill a deployment obligation.
(b) The office shall not approve any default that covers more than five percent of the
unserved or underserved locations subject to the deployment obligation.