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HomeMy WebLinkAboutFiber Optic Cable Install Agreement 2004 Cf t!L¿./¿.. AGREEMENT FOR FURNISHIf.:G. INSTALLATION AND SUPPORTING FIBER OPTIC CABLE NETWORK This Agreement is entered into this 7 / " day of n",.- " { , 2004 by and between the Oshkosh Area School District (hereinafter referred to as "District" or "Owner"), the City of Oshkosh (hereinafter referred to as "City" or "Owner") and Northwest Cable Construction, Inc., a Wisconsin corporation (hereinafter referred to as "Northwest" or "Contractor") with its principal office located at W230 S7085 Guthrie School Road, Big Bend, Wisconsin 53103-2535. 1. BACKGROUND 1.1. General Statement In order to establish the background, context and frame of reference for this Agreement and to provide a general background regarding the objectives and intentions of the parties, the following statements, representations and explanations are predicates for the undertakings and commitments included within the provisions which follow and shall be construed as essential elements of the mutual considerations upon which this Agreement is based. 1.2. Citvand School District Participation. The Oshkosh Area School District and the City of Oshkosh have jointly entered into this Agreement with Northwest for the purpose of installing a shared fiber optic network, as well as portions of the fiber optic network that will be exclusively used by the District and portions of the fiber optic network that will be used exclusively by the City with the City paying the cost of services provided to it by Contractor and the District paying for services rendered to it by Contractor. 1.3. District Work. The District desires to have installed its own fiber optic network connecting school facilities throughout the Oshkosh Area School District This Agreement entails the second phase ofthe fiber optic system entailing the contractor furnishing and installing a fiber optic cable network between the following sites: South Park Middle, Shapiro Elementary, Lincoln Elementary, Read Elementary, Washington Elementary, Webster Stanley Middle and Elementary, Emmeline Cook Elementary, Merrill Middle and Elementary, Oaklawn Elementary, North High, Maintenance Department, Recreation Department, and UW Oshkosh Dempsey Hall as specified in Exhibits A through E attached hereto and made a part hereof. 1.4. City Work. The City desires to have installed its own fiber optic network connecting City facilities throughout the City. This Agreement pertains to the third phase of the fiber optic system entailing the Contractor furnishing and installing a fiber optic cable network between the following sites of the City: Fire Station 16, Fire Station 14, City Parks Department, City Museum, Fire Station 17, Riverside Cemetery, Fire Station 18 and UW - Oshkosh Dempsey Hall (a site shared by the City of Oshkosh and the District) as specified in Exhibits A through E attached hereto and made a part hereof. 1.5. Incorporation of Documents. For the purpose ofthis Agreement, the provision of all necessary qualified labor, equipment, materials and services of any type under this Agreement shall be pursuant to the terms and conditions set forth in: . "Request for Proposal - - Oshkosh Area School District/City of Oshkosh Metropolitan Area Fiber Network" as prepared by Access Engineering, LLC (Exhibit A, Attached); . Oshkosh Area School District/City of Oshkosh Fiber Optic Network Schematic Plans dated 11110/2003 (Exhibit B, Attached); . Addendum 1 to Request for Proposals (Exhibit C, Attached); . Addendum 2 to Request for Proposals (Exhibit D, Attached). . "Official Notice to Bidders - Oshkosh Area School District/City of Oshkosh, Wisconsin (Exhibit E, Attached); . Bid-Response to Request for Proposals of Northwest Cable Construction, Inc. (Exhibit F, Attached). The terms and conditions as set forth in Exhibits A through F are hereby incorporated into this Agreement by reference. 2. PROJECT COST The grand total to be paid by the District for any and all work, services, equipment or otherwise under this Agreement shall not exceed $177,607.49. The grand total to be paid by the City for any and all work, services, equipment or otherwise under this Agreement shall not exceed $142,714.03. Total for the complete project shall not exceed $320,321.52. 3. PAYMENTS 3.1 All inyoices must be first reviewed by Access Engineering to ensure proper split oflabor payments for all areas described as Joint. Access Engineering will then outline the payment amounts that Northwest must include on each invoice to the District and City. 3.2. The District agrees to pay Northwest based on a timely monthly invoice inyoicing for work performed and completed during the prior month. The invoice shall describe the work performed, the location (within the project) of where the work has been performed. Northwest agrees that the District will hold back ten percent (10%) of each invoice as further set forth in paragraph 3.3 3.3. It is agreed that the District and the City will each hold back ten percent (10%) of each invoice of the contract in the total amount of not less than $32,000. Payment of such amount withheld will be made by the District and City when the District, City and Contractor ascertain that there has been substantial completion of the work and the District, City and Contractor have ascertained that the fiber optical cable network as 2 described in Section 2 is complete and is performing as intended; that there are no outstanding payments for which there exist no lien waivers; there exists no improper workmanship or defective materials appearing after the date of substantial completion; and that the work was performed in conformance with contract documents and the terms of any special warranties required by this Agreement By accepting final payment, the Contractor hereby waives all claims against the District and City. 3.4. The District and City shall not be obligated to pay any travel or mileage costs to Contractor, any subcontractor or anyone performing the work ofthis Agreement. Any cash discounts obtained on payments made by the Contractor shall accrue to the District and City. The Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for the proper financial management under this contract The District and its representatives shall be afforded access to the Contractor's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda or other data relating to this project and the Contractor shall preserve these for a period of three (3) years after final payment, or for such longer period as may be required by law. 3.5. The City agrees to pay Northwest based on a timely monthly invoice invoicing for work performed and completed during the prior month. The invoice shall describe the work performed, the location (within the project) of where the work has been performed. Northwest agrees that the City will hold back ten percent (10%) of each invoice as further set forth in paragraph 3.3. 4. CHANGES IN WORK. Changes in the work that are within the general scope of this Agreement may be accomplished by a "change order" which shall be a written document issued after the execution of this Agreement, signed by the District (as relates to District work) and the City (as relates to City work) or both City and District (as relates to joint area work) as well as the Contractor stating an agreement upon a change or adjustment in the work and the resultant increase or decrease. Such change or adjustment in the work shall be clearly stated and the amount of such increase or decrease in the Agreement shall be so stated, in writing and signed by the authorized representatives of the District (for District work) or the City (for City work) or both City and District (as relates to joint area work) and the Contractor. There shall be no claims for additional costs or compensation under this Agreement absent such duly executed "change order." 5. SUBCONTRACTORS AND SUPPLIERS Those portions of the work that the Contractor does not customarily perform with its own personnel shall be performed under subcontracts or by appropriate agreements with the Contractor. The Contractor shall be responsible for the performance of all subcontractors as well as for the payment for the work, supplies or equipment provided under this Agreement The Contractor shall be responsible for the management of all subcontractors in the performance of their work. For each invoice requesting payment 3 è:/ for any work or work service or material of any type provided by Contractor or subcontractor to the District and the City, the Contractor shall submit duly executed waivers of lien by which the Contractor, subcontractor or anyone performing work under the direction of the Contractor, waives any right, title or interest to any funds of the District and the City related to this project or to the fiber optic system. The Contractor shall be responsible for the management of the subcontractors in the performance of their work and the compliance of the subcontractors with all state and federal rules and regulations including paying of wages and overtime. All supplies and equipment utilized for the work shall be stored at the Contractor's own cost. 6. INDEMNITY. INSURANCE. BONDS 6.1. Northwest shall indemnify and hold harmless the District and the City from any and all claims of any type whatsoever as relate to claims by employees for unpaid wages, failure to comply with state or federal law, rules or regulations concerning wages, as well as the payment of prevailing wages, unemployment compensation, workers compensation or compliance with discrimination laws in any claim of any type for services rendered under this Agreement and in that regard, it is understood by the parties to this Agreement that Northwest is an independent contractor with respect to the District and the City and not an employee of the District or the City. It is understood and agreed that the District will not payor provide wages, fringe benefits, health insurance benefits, vacation or any other wage, term or condition of employment or benefit Additionally, the Contractor agrees to indemnify and hold harmless the District and the City from all claims for bodily injury and property damage that may arise from the performance of the work, to the extent of the negligence attributed to such acts or omissions by the Contractor, subcontractors or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable. The Contractor shall not be required to defend, indemnify or hold harmless the District and the City from any acts, omissions or negligence of the District or the City for its employees. 6.2. At all times Northwest shall comply with the provisions of the Request for Proposals concerning providing and maintaining at all times a public improvement performance/labor and material payment bond pursuant to the provisions of Section 779.14, Wisconsin Statutes, with a Surety duly authorized and licensed to do business in the State of Wisconsin for the use and benefit of owner and claimants in the amount of not less than 100% of the contract sum. Such bond shall cover the faithful performance of the contract and payment of all obligations arising thereunder as set forth in the contract documents. The Contractor understands that it shall not commence work under this Agreement until Contractor has obtained all insurances and bonds required by the contract documents and such insurances and bonds have been approved by the owner, nor shall the Contactor allow any subcontractor to commence work until all similar insurance and bonding requirements have been obtained and approved. 7. LABELING/ACOUISITION OF PHONE LINE (EMERGENCY SERVICE) 4 Access will ensure that all joint cables (cable shared by the District and the City) and all cables used exclusively by the District are labeled by contractor as "Oshkosh Area School District Optical Fiber Network" with assigned cable numbers at all hand holds, pull attachments, and terminal points (Panduit #PST-FO). All cables used exclusively by the City shall be labeled as "City of Oshkosh Optical Fiber Network" with assigned cable numbers at all hand holds, pull attachments and terminal points (Panduit #PST-FO). All joint cables (cable shared by the District and the City) and all cables used exclusively by the District are labeled by contractor as "Oshkosh Area School District Optical Fiber Network" with a District assigned Emergency telephone number (one that is designed to ring directly to District staff when called) at all aerial pole attachments as required by Wisconsin Public Service. (Tyton #CMFO72). All cables used exclusively by the City shall be labeled as "City of Oshkosh Optical Fiber Network" with a City assigned Emergency telephone number (one that is designed to ring directly to City staff when called) at all aerial pole attachments as required by Wisconsin Public Service. (Tyton #CMFO72). WARRANTY 8. 8.1. Northwest hereby warrants that all material, equipment, wire furnished under this Agreement are of the latest version, and are of good working order, new, free from all defects, in conformance with engineering plans and specifications attached to this Agreement and that all standard manufacturers' warranties shall apply. 8.2. Northwest additionally warrants that the material and equipment installed for and on behalf of the District and the City under the terms of this Agreement are configured, laid, installed and connected so as to serve the purpose for which the fiber optic system was intended by the District and the City. 8.3 Contractor agrees to comply with the provisions of the contract documents concerning warranty and maintenance as set forth in 3.0 of the Request for Proposals. 9. NON-ASSIGNMENT Northwest agrees that it may not assign or transfer this Agreement to any other person, firm or corporation without the prior consent of the District and the City. 5 10. 11. 12. TERMINATION The parties agree that should Northwest fail to perform its obligations under this Agreement, it shall have thirty (30) days from the date of notification to cure such defect or obligation which has not been completed to the satisfaction of the District and the City. After such thirty (30) day period commencing with date of notification by the District and the City, the District and the City may terminate the Agreement The District and the City shall be obligated to pay Northwest for the work that has been substantially completed that complies with the specifications of this Agreement up to thirty (30) days from the date of such notification. NOTICES All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the United States mail, postage prepaid, addressed as follows: CONTRACTOR DISTRICT CITY Northwest Cable Construction, Inc. W230 S7085 Gutbrie School Road Big Bend, WI 53103-2535 Attn: Ken Kannard Oshkosh Area School District 215 S. Eagle Street Oshkosh, WI 54903 Attn: Tim Kieffer City of Oshkosh 215 Church Avenue Oshkosh, WI 54901 Attn: Don LaFontaine SEVERABILITY If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 13. WAIVER OF CONTRACTUAL RIGHT The failure of either party to enforce any provision ofthis Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. 14. APPLICABLE LAW This agreement shall be governed by the laws of the State of Wisconsin. The venue for any action under this Agreement shall be the Winnebago County Circuit Court or the U.S. Federal District Court for the Eastern District of Wisconsin. 6 15. ASSIGNMENT OF DELIVERABLES Northwest Telecommunications Service, Inc. shall assign, transfer and convey to Oshkosh Area School District all rights to deliverables involved in the project as well as those created during the project 16. CONFLICTS Should there be any conflict between this Agreement or any Exhibits attached to this Agreement, the express provisions of this Agreement shall supersede the attached Exhibits. DATED THIS /Sd DAY OF ~ ,2004. IN WITNESS WHEREOF, the District and Northwest Telecommunications Services, Inc. have executed this Agreement by their duly authorized representatives. k:: Æ-~ OSHKOSH AREA SCHOOL DISTRICT BOARD OF EDUCATION ~;'/ll VÞ¡J 1 ent i!~~ erk ..//l/ó~ Date NORTHWEST CABLE CONSTRUCTION, INC. President or other authorized signature ~'-~ Secr ~¡: . Date CITY OF OSHKOSH r~~ C' ManageÌ'- I 5 +~:{ LODvt Date 7