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HomeMy WebLinkAboutWaas Boring & Cable, Oshkosh & NTD Right-of-Way Warranty Agreement This Agreement is entered into by and between Waas Boring&Cable.Inc.(WAAS),and the City of Oshkosh(CITY),and Northern Telephone and Data Corp.(NTD,Guarantor) I 1. NTD is recognized as a public utility by the State of Wisconsin and therefore is authorized by state statute to install its facilities within the public rights-of-way in the City of Oshkosh,subject to any CITY requirements for the installation of public facilities. Among other requirements,the CITY requires that those performing work in the right-of- way must obtain a Work in the Right-Of-Way Permit. 2. In 2014 NTD sought to undertake a Project involving the installation of fiber within the Division Street right-of-way in an area between High Avenue and Lincoln Avenue. 3. NTD retained the services of WARS to perform and complete the Project. On or about July 10, 2014,WAAS obtained Right-Of-Way Permit number 20140206 from the City, In accordance with the terms of the Right-Of-Way Permit,WAAS provided the CITY with a Right-Of-Way Bond for the purpose of securing payment of Warranty deficiencies resulting from WAAS'performance of the Project for NTD. 1 4. The Warranty period of the Permit,and therefore the term of the required Bond, extended for two(2)years after WARS'annual license period for work in the rights-of- way,with the annual license periods measured in calendar year. Therefore,WAAS' annual license in this instance ended on December 31,2014. The CITY therefore had until December 31,2016 to identify work defects associated with the Project,and to seek payment either from WAAS or WAAS'Bond Company for violations of the CITY's Warranty that are related to maintenance,repairs,or replacements of defective work undertaken pursuant to the Right-Of-Way Permit. 5, After WAAS initially completed the Project,and prior to the expiration of the Warranty period,the CITY identified numerous defects in the work performed in the right-of-way by WAAS pursuant to its Right-Of-Way Permit. 6. `WAAS, its Bond company, and NTD,were timely notified in writing of the defects and problems covered by the Warranty that the CITY would require to be repaired that are related to WAAS'Right-Of-Way Permit. A summary of the defects and problems are attached hereto as Exhibit A. 7. WAAS and NTD then advised the CITY that they wished to alter the CITY's anticipated method and timing of repairs or replacements of the inadequate or defective. In particular,NTD and WAAS requested that the CITY forego its right to make a claim 1 October 17, 2016 against WAAS'Bond to collect reimbursement for Warranty damages. Instead, both WAAS and NTD requested that the CITY accept alternative terms that would both extend the time for repairing the defective work and accept NTD's promise to ensure that the defective work is repaired by NTD or that the CITY is reimbursed by NTD for the work instead of the CITY pursuing reimbursed through the Bond. 8_ In addition to making claims on Bonds,the CITY has also historically limited the ability of contractors to obtain future Right-of-Way Permits for a period of time for failures to properly perform work in the rights-of-way. The proposal by WAAS and NTD would hold in abeyance the CITY's decision regarding WAAS'ability to perform future work in the rights-o#--way pending the outcome of the required repairs. 9. The CITY is agreeable to the proposal of NTD and WAAS provided they agree with the terms of this Agreement. 10.The CITY agrees to the following: a. The CITY will forego its rights to make a claim upon WAAS'Bond that would otherwise guaranty WAAS's obligations related to Right-Of-Way Permit 20140206,in return for the promises made herein by both WAAS and NTD that will guaranty that NTD will complete WAAS'obligations,or that NTD will reimburse the CITY for CITY expenses related to WAAS'obligations,or that the CITY will not be otherwise damaged by WARS'failure to complete its original obligations related to Right-Of-Way Permit Number 20140206; b. The CITY will temporarily hold in abeyance its decision to suspend WAAS'ability to obtain future Rights-of-Way Permits pending the outcome of the repairs described in this Agreement. c. The issues identified in Exhibit A,attached hereto, must be resolved to the satisfaction of the CITY,with the CITY retaining sole discretion regarding the approval of any final work presented by NTD; d. All Warranty repairs and work related to Right-Of-Way Permit Number 20140206 shall be completed in accordance with all City standard specifications and approved by the CITY no later than June 1511,2017. e. In the event that the work and repairs required are not fully completed according to the terms of this Agreement,then NTD agrees to fully guaranty payment to the CITY for the repairs and Warranty work described in this Agreement. 2 October 97,2096 11.WARS and NTD agree to the following: a. NTD and WAAS agree to the terms in this Agreement and further agree that the intent of this Agreement is to persuade the CITY to forego its right to make a claim to WAAS'Bond in return for the promises described in this Agreement; b. NTD agrees to complete at its own cost all repairs identified by the CITY in j accordance with all CITY standard specifications and to the CITY's satisfaction no later than June 151,2017; c. In the event that NTD fails to complete its obligations described in this Agreement,then NTD agrees to guaranty payment to the CITY for all work and repairs that is not completed in a manner meeting or exceeding all City standard specifications no later than June 151",2017. d. It is understood that any work undertaken by NTD through this Agreement will,in fact, be undertaken by one or more contractors. e. Although NTD is agreeing to undertake necessary work to complete all repairs, or pay the CITY in lieu of completing such repairs, both NTD and WAAS remain jointly and severally liable for the repairs identified. f. The CITY is aware that there may be separate agreements or arrangements between NTD and WAAS regarding this project and/or responsibilities for repairs. The CITY is not part of any such separate agreements and is not bound to follow or abide by them. 12.The CITY,WAAS,and NTD agree that NTD's guaranty will work in the following manner. a. Within fifteen(15)business days after June 15,2017,the CITY will provide written confirmation to NTD at their last known business addresses that WAAS has either complied or failed to comply with its obligations pursuant to this Agreement; b. In the event of non-compliance,WAAS'ability to obtain any future Right-of-Way Permits within the CITY will be suspended beginning on the date of non- compliance through the remainder of 2017,followed by the full calendar year of 2018. WAAS may be eligible to obtain Rights-of-Way Permits beginning in calendar year 2018 provided no other disqualifying action has occurred. c. In the event of non-compliance,the CITY will provide NTD with an estimate of costs of repairing,or completing repairs,otherwise required of NTD by this Agreement as soon as practicable after June 15,2017; 3 October 17, 2018 d. NTD will provide the CITY with funds equaling the CITY's estimated costs within ten(10)business days after receipt of the estimated costs_ The City will deposit the funds provided by NTD in an appropriate account to be used to reimburse the CITY for costs associated with repairing or completing repairs otherwise required of NTD as described in this Agreement; e. In the event that the CITY's actual costs for repairing or completing repairs that WAAS failed to complete to the CITY's satisfaction are less than the estimated costs submitted by NTD,then the CITY will refund NTD the extra amount. f. In the event that the CITY's actual costs for repairing or completing repairs that WAAS failed to complete to the CITY's satisfaction are greater than the estimated costs submitted by NTD,then the CITY will invoice NTD for the difference, and NTD shall submit payment for the difference to the CITY within thirty(30)days from the date of the invoice. 13.Time is of the essence regarding the performance of the obligations of NTD as required in this Agreement. 14.All recitations and terms in this Agreement are considered material. 15. In the event that NTD delays its performance of obligations required in this Agreement, then the CITY's damages shall be measured from the actual date of compliance rather than the original date of obligation,and additional costs for delay may include,without limitation,additional costs for retaining contractors on short notice,for traffic control, or for damages or injuries associated with the extended existence of a construction zone. SIGNATURE PAGE FOLLOWS 4 October 17,2078 WAA IN C INC. By: Bandy Mas,Vice President Date: �I f % l I CITY OF OSHKOSH By: Mark A.Rohloff, City Manager Bate: By: � Pamela R.Ubrig,City Clerk Date: ! NORTHER TELEPHONE AND DATA CORP. By: Date: t William Miller, President 5 October 17, 2016 4r v � q n x > Q3 u Sbf Lti q6 y v t IIIIII LEI a c a y 3 3 a 3 E i o v y E oq G72 t It v o 0 o " � o .x u w w y O b O t ro v, 6..° �• c ti m 3U3 Q H v1 � ro `� '�^• � N.Y C Lp V v O � � C ~ "G v°i Q r v u v o v v o •9 u o y �1.i3H5 ..yrs lip 0 j o q 9 11 e / 5'�- aP ff1 gA: ID a y:.T,',vs Jas e ar 3 ah v �' E y • • c v � ii ill it i �3Sa ��ql� o .� _ •o g��6 �� �°- U q w h r && oH I £ u II II �`.a i5a I i o � f / �( L133HS 335 s try O �N � S 4 vS� 3Atl tlal _ 49 a. 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