The URL can be used to link to this page

Home My WebLink AboutNorthern Telephone & Data.2 CITY OF OSHKOSH LEGAL DEPARTMENT 215 CHURCH AVENUE, P.O. BOX 1130, OSHKOSH, WI 54903-1130 PHONE: (920) 236-5115 FAX (920) 236-5106 LETTER OF TRANSMITTAL To: Northern Telephone & Data Corp. 300 N. Koeller Street Oshkosh, WI 54903 Attn: William K. Miller Piease find: ❑ Copy of Letter ❑ Meeting Notes ❑ Specifications � Attached � Agreement ❑ Photos ❑ Estimates Date: September 24, 2015 Pro�ect: N/A From: Carol Marchant, Admin. Assistant Re: Revocable Agreement for Fiber Optic Cabie ❑ Under Separate Cover ❑ Amendment ❑ Report ❑ Agenda ❑ Mylars ❑ Change Order ❑ Plans ❑ Diskette ❑ Zip Disk ❑ Other Quantit Description 1 Cop of Revocable A reement for Fiber Optic Cable These are being transmitted as indicated below: ❑ For Approval � For Your Use ❑ As Requested ❑ For Review 8� Comment Remarks: cc: City Clerk (originals) Public Works, Engineering (copy) City Attorney (copy) _-----� R�-= �` ��-'� p , _� -- , _— ; , SEp 2 5 2015 '�, -- ___ c�..�ia�'� $yi'��'icF . CiTY ��"" �� REVOCABLE AGREEMENT FOR FIBER OPTIC CABLE The Parties to this Agreement are the City of Oshkosh, a Wisconsin Municipal Corparation with principal office at 215 Church Avenue, Oshkosh, Wisconsin 54902 (City) and Northern Telephone and Data Corp., a Wisconsin Corporation with principal office at 300 North Koeller Street, Oshkosh, Wisconsin (NTD). In or around 2009 the City installed a six (6) inch conduit (Conduit) underneath the Fox River near and just northwest of the Wisconsin Street bridgee The under-water Conduit attached to the shore through City-owned property on both sides of the Fox River. A general map is attached as Exhibit A. Within the Conduit are twelve (12), one (1) inch Innerducts. Certain Innerducts are being used by the City or others that the City has allowed to use a portion of the Conduit for their fiber optic or similar business needs. Several Innerducts remain vacant and unused. Agreement. NTD requests that the City allow it to use one (1) of the currently unused Innerducts (the Innerduct) for the purpose of facilitating its business activities. The City agrees to allow NTD's use of the Conduit subject to the terms of this Agreement. NTD accepts the City's terms. 2. Payment. Prior to installing any wire or cable into an Innerduct, NTD shall make a one-time, non-refundable, payment to the City in the amount of Ten Thousand and NO/100 Dollars ($10,000.00). Other payments or reimbursement may be required as otherwise described in this Agreement. 3. Location. The City shall assign one specific Innerduct to use as a result of this Agreement. The City will receive input from NTD regarding desired Innerducts, but the City retains sole discretion to assign an Innerduct to NTD. NTD shall not acquire any ownership or any property interest in the Innerduct or in the Conduit by virtue of its use of the Conduit and Innerduct pursuant to this Agreement. 4. Identification. NTD shall clearly identify and mark all wires ar cables that it installs within an Innerduct within the City's Conduit so that it is clearly distinguishabl�,from other wires and/or cables within or around the Conduit. NTD shall respond within a reasonable amount of time to assist the City or others using the City's Conduit with identifying, marking, or clarifying NTD's wires or cables or general use of the City's Conduit. All costs of NTD's responsibilities to identify, mark, and/or clarify shall be the sole responsibility of NTD. Vaults. The City currently has vaults on its shore property on both sides of the Conduit. NTD will be allowed to pass through these vaults, but shall not use the vaults for any other purpose. NTD's pass through facilities shall be clearly marked at all times. NTD will be eXpected to construct its own vaults and/or access boxes at any lawful location with the approval of the property owner and any regulatory body upon which the NTD vaults may be located. 6. Easements. Prior to installing any wire or cable into an Innerduct, NTD shall enter into appropriate easements and other necessary agreements with property owners and/or governmental bodies to allow the location of its facilities on each end of the Conduit. July 17, 2015 7. Permits. NTD shall obtain all necessary permits and approvals required by local, state, and federal requirements before any installation. 8. Maintenance/Relocation. NTD shall be responsible for maintenance and repairs of its property and facilities in and around the Conduit. NTD shall be responsible for its proportional share of all costs of repairs, maintenance, replacements, and relocations of the Conduit. The proportion is determined by the number of entities occupying the Conduit at the time of the necessary repair. An entity shall be considered to occupy the Conduit if their wire, cable, facilities, or any other property is physically ir� the Conduit, regardless of the extent that such property may be used. 9, No Assignment. NTD shall not allow any other entity to occupy its Innerduct or any part of the Conduit through sale, assignment, lease, gift, ar any other circumstancee Notwithstanding the previous sentence, in the event of the sale of NTD, NTD shall have the right to assign this Agreement with the consent of the City, which shall not be unreasonably withheld or delayed. 10 No City Liability. City did not install the Conduit under the Fox River with the intention of making its space publicly available for other parties except for those identified in any original agreement. The Conduit was not installed for users beyond those originally involved. Although NTD has provided for financial consideration as noted above, the City considers N'I'D's promise to very broadly hold the City harmless for damages and resulting injuries related to NTD's use of the conduit to be more valuable consideration than the monetary consideration. More specificallyy a. NTD will be responsible far damages or injuries to others occupying or using the Conduit that is related to NT'D's use of the Conduit. The City shall in no circumstance be liable for these damages. b. The City shall under no circumstance be responsible for any damages of any kind to NTD, its employees, its property, or its business based on the City's ownership of the Conduit, or based on any action of the City ar its authorized employees, agents, or volunteers. The City's liability exclusion includes any type of accidental or negligent behaviar by the City but does not include damages caused by malicious acts of the City. c. 'The City makes the Conduit available on an as-is basis. NTD assumes all risks associated with the condition of the Conduit, its location, and its current and future uses. d. NTD shall hold the City harmless and fully indemnify the City far any costs it incurs from claims of others that are related to NTD's use of the Conduit. e. This liability waiver applies only to issues related to the NTD's use of the City's Conduit. Both the City and NTD have other activities in other parts of the City, and this liability waiver is not intended to apply to accidents or disputes between these two parties that are unrelated to the City's Conduit and NTD's use of the City's Conduit. 11. Revocation. NTD's right to use the Conduit and any Innerduct may be revoked by the City upon One Hundred Twenty (120) day written notice. Such revocation may be with or without cause. Although no "cause" is required, the City may exercise its revocation rights for reasons Juty 17, 201 � that include, but are not limited to: the protection of the City's interests; changing technology; space needs; issues affecting the Fox River; or the need to further occupy the Conduit. In the event of a Revocation, there shall be no pro-rata or proportional refund of any NTD payment or reimbursement. 12. NTD Abandonment. NTD shall notify the City of its intention to vacate the Conduit and shall provide a specific date on which NTD will actually vacate the Conduit. After the date of vacation, NTD shall retain no rights to occupy or use the Innerduct. In the event of an Abandonment, there shall be no pro-rata or proportional refund of any NTD payment or reimbursement. 13. No 3`d Party Beneficiary. This A�greement is for the benefit of the parties signing the Agreement. There shall be no �r party beneficiaries to this Agreement. 14. Severability. Any term of this Agreement determined to be invalid or unenforceable by a Court shall not affect the validity or enforceability of the remainder of the Agreement. 1 S. Municipal Liability: Nothing in this Agreement is intended as a waiver of the municipality's right or opportunity to rely upon the municipal limitations and immunities contained within Wisconsin law. Municipal immunities and limitations include, but are not limited to, Sections 345.05, 893.80, and 893.83, Wisconsin Statutes. Such damage limits, caps and immunities are intended to be preserved and are incorporated into this agreement and shall govern all disputes, contractual or otherwise, as they apply to the municipality and its agents, officers, and employees. l 6. Choice of Law/Venue. This Agreement shall be interpreted according to Wisconsin law. Disputes shall be resolved in Winnebaga County, Wisconsin. NOTE: By signing this Agreement, NTD is giving up or waiving certain rights or claims that it may otherwise have against the City that are related to NTD's use of the City's Conduit. NTD understands that an Agreement with the City to use its Conduit is not possible without waiving claims against the City. NTD has had the opportunity to consult with counsel and negotiate terms, and accepts the terms as presented. CITY OF OSHKOSH Dated: �'y _�'� .�.�l� By: �rk A. loff, City Mana By: � � � � � � Pamela R. Ubng, City Clerk A oved as to Fo � ! � � � *�L3�n Larenson, City ttorney July l 7, 2015 NORTHERN TELEPHONE & DATA CORP. Date: se �T C, ��i'' � , �..0 � � ---�--- BY: .�" _ William Ko Miller, Owner/President � � % . I �� . :;� j �/ l � `�,\ � �,�\ � \�/ ,Jr% j' ` f !� � v f i .-�,1, � A r � � 1� ii � � �/ . __. .___ —_ % �, ' f � / . �� , �. �� %� .��_ �.2" ..� x� � � . :. ,�� _ , . -- __ .. ��; '' _ `.%' � : '` . . I� ,� � �� r s E r� O .� -5 '�Sy . . �• �-. S . +� = y uis �°s,� i o � r � � / r--' f� �} ,� . � \ � �� 'p\ � � � �� — ., i - i � � '--1 � ` ' _ „_l '�� _ �' 'b � '`• `�. Z =_ �w 'J.S OIHO O � ,r f ��of' �� -- ,� . � � . ' `o �'s i , �i � � f �ri � ; •.� � � i] �';, q fj /3' ,, _c l+-1 � tl f" � �� i �, Q O __ ,'� Q i ; � � ,. ; _1r!� ?_/ • \i i � ♦ i— Rf , �/�`%. �l : . ' c r--{ � ..l� 9. . � ` - { , = v ' f�'G Fc�ri,•4� ., p ,' /� (i/ - c Z / � - �� ° �` , a � �j�� __ �� ,f d E . � / � !// � ..._ e_. .. �/ �` } f/ �� . -LLr: f o n , � � � a� -_ ,� - _° v Y3 = � ; , � W � . � � � � �q � $ -- ~ f e� L'J !r---�1 Q. ',f-L�3 _ _ � yl � L� �''`'1�` J �� _ ((�� O � l w ^; �` � J V i i i � ?r: �� - � t.l if �'J � �._�]6 _ -� L . '1 �� .', � m . ',+;li . ' } � .. •- � s 'QN 1138dYfV0 � ' � � E_ a: -a= ......... .... - - -.-...: .y �; o ,..�r„. . �; - -_ .. � o� - ;. � ,, _ �y � , �Xhibi� �