HomeMy WebLinkAboutSubscription Agreement to Master Agreement for the NW One Call Subsurface Warning System - 1986
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Subscription Agreement
to
Master Agreement
for The
Northwest
One Call Subsurface Warninq System
The< cnder~igncd tcreby subrcribEs and "g!';:;~3 to the ~ster Agner:.ent for
The Northwest One Call Subsurface Warning System, dated as of April 1, 1986,
as the same may have been or may be amended from time to time
(the "Wister Agreement"). All t e ons defined in the lo'..as t e r 1-.greement shall
hav.a the sam~ meaning \Then used in this Sll.b~cription 1-.greement.
l. By execution of this Subscription AgreemEnt, the undersigned agrees to
become a "Party" under and to be boLUld by the provisions of the Master
Agreement.
2. The undersigm.d owns or operates the following type(s) of subsurface
utility facilities:
o Electric )( Water
o Gas o Cable Television
[) Telepho:-.e o C~mm~~ications
)t( Slreets and Roadways o Transmission Pip~lines
X (Y.-l--",- Sewer (Sanitary & Storm)
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3. This Su.cscription 1-.greernent shall apply to the LUldersigned's
subsurface utility faci 1i ties in the following Counties, together with any
adCiticr:.:.l CO'_,':.':'S'''.: i..S t-:> which the: S~rvi.c~ r.::y r€ providsd with rCl3fect to
the undersigned's subsurface facilities:
Gallatin County, State of Montana
4. MY notice, request, designation, direction, statement or other
communication under the Agreement may be delivered or mailed to the
undersigned at tho following address:
City of Bozeman
p. o. Box 640
Bozeman, MT 59771-0640
1I.ttention: Phillip J. Forbes
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5. The undersigned acknowledges its receipt and examination of a copy of
the Master Agreement and related documentation and has fully satisfied itself
as to the nature and extent of its rights and obligations thereunder.
Dated: March 13 . 19~
City
STATE OF MONTANA )
) 55.
COUNTY OF )
On this 13th day of March . 1989 . before me.
the undersigned. a Notary Publi c in and for the State of Montana. duly
cc~is~io~ed and sworn. per~onally appeared James E. Wysocki .
to me known to be the __City Manaqer of the City of Bozeman .
the corporation that executed the within and foregoing instrUlT'ent. end
acknowledged said in~trument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned. and on oath stated
that James E. Wysocki was duly elected. qualified and acting as said officer
of the corporation. that James E. Wysocki was authorized to execute said
instrument and that the seal affixed. if any. is the corporate seal of said
corporation.
GIVEN UNDER my hand and official seal hereto affixed the day and year in
this certificate above written.
for
of Montana. residing at
My Appointment Expires: 1/J'I/t6 '\
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MASTER AGREEMENT
for
The
NORTHWEST
ONE-CALL SUBSURFACE WARNING SYSTEM
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Dated: April 1, 1986
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, TABLE OF CONTENTS
Page
Section 1 . Definitions ....................... 1
1.1 Specified Definitions ................ 1
1.2 Cross-References to Additional
Definitions ... .... ........... ...... 4
.
Section 2. Performance of the Service ........ 4
2.1 General .......... ..... .......... ..... 4
2.2 Appointment of Committee as Agent . . . . 4
2.3 Committee Policies, etc. ............. 5
2.4 Specific Requirements ................ 5
2.5 Equal Opportunity Compliance . . . . . . . . . 5
Section 3. The Committee ..................... 6
3.1 Composition ......... .............. ... 6
3.2 Committee Members .................... 6
3.3 Manner of Acting by the Committee . . . . 7
3.4 Voting of the Committee .............. 7
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Section 4. Payment and Allocation of Common
Costs ..... ... ..... ... ........ ..... a
4.1 Establishment of Charges ............. a
4.2 Charges Based on Common Costs ........ a
4.3 Payment of Excess Common Costs ....... 9
4.4 Payment ...... .......... ......... ..... 9
4.5 Sponsor's Right to Cure Default ...... 9
4.6 Bank Accounts ...... ............... ... 9
4.7 Books and Records .................... 10
Section 5. Changes in Parties in the Service
~ ....... ........... .... ..... ... 10
5.1 Additional Parties ................... 10
5.2 Expansion of the Service Area ........ 10
5.3 Termination of participation As
to Any County ...................... 11
5.4 Withdrawal As a Party ................ 11
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Section 6. Insurance ............ ....... ...... 12
6.1 Insurance Program ................... 12
6.2 Policy Provisions ................... 12
6.3 Evidence of Insurance ............... 13
Section 7. Committee Determinations and
Other Orders ..................... 13
7.1 General ........... ..... ............. 13
7.2 Resolution of Controversies ......... 13
7.3 Protest of Committee Orders ......... 13
Section 8. Relationship of the Parties ...... 14
8.1 No Partnership ...................... 14
8.2 The Contractor ....................... 14
8.3 No Third Party Beneficiaries ........ 14
8.4 No Dedication of Facilities . . . . . . . . . 14
8.5 Several Obligations ................. 14
8.6 Tax Exempt Status ................... 15
Section 9. Miscellaneous .................... 16
9.1 Excused Performance ................. 16
9.2 Communications ...................... 16
9.3 Entire Agreement .................... 16
9.4 Amendment ............. ... ............ 16
9.5 Implementation ...................... 16
9.6 Nonwaiver ............ ............ ... 17
9.7 Severability . . . . . . . . . . . . . . . . .. . . . . . . . 17
9.8 Headings ........... ... ............... 17
9.9 Governing Law ....................... 17
9.10 Forum Selection ..................... 17
9.11 Successors and Assigns .............. 17
9.12 Disposition of Assets .at the End of. .
Term ................ .............. 17
List of Exhibits .... ...... ................ 18
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Master Agreement
< , for The
Northwest
One-Call Subsurface Warning System
This Agreement, dated as of August 1, 1986, is made and
entered into by and between those parties who from time to time
subscribe to this Agreement (collectively, the "Parties";
individually a "Party"). The Parties on the date of this
Agreement are listed in the attached Exhibit A.
Recitals
A. Each Party owns, operates or conducts activities
affecting subsurface utility facilities (including, but not
necessarily limited to, any electric, gas, telephone, water,
cable television or communications distribution system).
B. Each Party desires to protect its subsurface utility
facilities from damage, interruption or interference by anyone
who intends to excavate, drill, blast or perform other work
that might disturb the surface or subsurface of the earth.
C. In order to help protect their respective subsurface
utility facitilities, the Parties have established a service
( (as the same may be modified from time to time, the "Service")
by which anyone who intends to excavate, drill, blast or
perform other work which might disturb the surface or
subsurface of the earth within certain counties in which such
facilities are located may call a single telephone number to
notify the Parties affected by the proposed work and seek such
Parties' assistance in locating their respective subsurface
utility facilities.
Agreement
The Parties therefore agree as follows:
Section 1. Definitions.
1.1 Specified Definitions. Whenever used in this
Agreement with initial letters capitalized, the following terms
shall have the following specified meanings, unless the context
clearly requires a different meaning:
1.1.1. "Committee" means the committee described in
Section 3.
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1.1.2. "Common Costs" means those costs reasonably
( ncurred by the Parties or anyone or more of them in
connection with the Service, but only if and to the extent that
such costs are included in a budget or otherwise authorized or
approved by the Committee as "Common Costs" under this
Agreement. Common Costs may include, but are not necessarily
limited to, the following:
(a) payroll and related personnel costs to
perform the Service (including: salaries; wages; costs or
fringe benefits such as retirement benefits, employee
insurance and allowances for sick leave, holidays and
vacations; social security, unemployment and other employer
taxes; and premiums for workers' compensation and
employer's liability insurance);
(b) costs of office space, facilities,
equipment, materials, services and other items used;
consumed or incorporated in the performance of the Service;
(c) costs of consultants, contractors and suppliers
furnishing goods, services and other items for performance
of the Service (including, but not limited to, compensation
payable to the Contractor);
(d) attorneys', accountants', and other
professional fees incurred in connection with performance
of the Service (including, but not limited to, the costs of
any audit of the Common Costs performed pursuant to
paragraph 4.7);
(e) sales, use, property and other taxes which
are imposed by any governmental authority in connection
with performance of the Service (other than any taxes
imposed upon or measured by the income, revenues or
receipts of any Party);
( f ) costs of permits, licenses and other
governmental authorizations required to perform the
Service; and
(g) 'costs (inClUding, but not limited to,
attorneys' fees) incurred to defend, compromise, settle and
satisfy claims of third parties against the Parties or any
one or more of them arising out of the performance of the
Service, if and to the extent not covered by insurance or
the indemnity in paragraph 8.5.3.
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1.1.3 "Contractor" means the Person engaged from time to
( -- .ime by the Committee pursuant to paragraph 2.2(a) to perform
the Service. The Contractor on the date of this Agreement
is Asplundh Tree Expert Co.
1.1.4 "County" means any county or other political
subdivision of a state included in the Service Area. The
Counties on the date of this Agreement are set forth in the
attached Exhibit B.
1.1.5 "Fiscal Period" means the fiscal period adopted
from time to time by the Committee for budgeting, financial
statement, accounting and other financial purposes with regard
to the Service. On the date of this Agreement, the Fiscal
Period is the twelve-month period commencing on August 1 of one
year and ending on July 31 of the next year.
1.1.6 "One-Call Office" means an office from which the
Service is performed. On the date of this Agreement, the
One-Call Office is located at 12951 Bellevue-Redmond Road,
Bellevue, Washington 98005. The Committee may at any time
establish one or more additional One-Call offices or change the
location of any One-Call Office.
1.1.7 "Person" means any corporation, partnership, trust,
governmental authority, individual or any other person or
entity.
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1.1.8 "Service Area" means the geographical area to which
the SerVice applies. The Service Area is composed of the
Counties.
1.1.9 "Sponsor" means a Party with facilities in a County
who agrees to act and is approved by the Committee as a
Sponsor. Each County must have at least one Sponsor. The
Sponsors for each County on the date of this Agreement are set
forth in the attached Exhibit B.
1.1.10 "Subscription Agreement" means the document, in
such form and content as may be prescribed from time to time by
the Committee, by which a Person becomes a "Party" under this
Agreement. The form of Subscription Agreement prescribed by
the Committee on the date of this Agreement is attached as
Exhibit C.
1.1.11 "Term" means the period commencing with the date of
this Agreemen~d ending upon the first of the following to
occur:
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(a) July 31, 2004;
I (b) the date upon which the last of the Parties
withdraws as a Party pursuant to paragraph 5.4; or
(c) the effective date of any termination of this
Agreement by the Committee pursuant to paragraph 3.4 (d).
1.1.12 "Uncontrollable Forces" means any cause or
condition beyond the control of any Party delaying or failing
to perform its obligations under this Agreement, which cause or
condition such Party is unable to overcome or have prevented by
the exercise of reasonable diligence. Uncontrollable Forces
may include, but are not necessarily limited to, acts of God,
acts o{ the elements, fires, winds, floods, explosions,
strikes, sabotage, insurrections, riots, acts of the public
enemy, failures of equipment, inabilities to obtain or ship
materials or equipment, acts of civil or military authority
(including court orders, injunctions and orders of government
authorities prohibiting performance as required by this
Agreement or permitting such performance only subject to
unreasonable conditions), and failures of governmental
authorities to timely act (including any failures to issue
permits, licenses or other required governmental
authorizations).
1.2 Cross-References to Additional Definitions.
Whenever used in this Agreement with initial letters
capitalized, the following terms shall have their respective
meanings specified elsewhere in this Agreement:
Term Reference
First Party Paragraph 8.5.3
Party Introduction
participating Party Paragraph 7.2
Service Recital C
Section 2. Performance of the Service.
2.1 General. The Parties shall provide for the Service
in the Service Area throughout the Term.
2.2 Appointment of Committee as Agent. Each Party
irrevocably appoints the Committee as its agent to:
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(a) enter into, perform and administer one or more
( ,ontracts with the Contractor for the Contractor's performance
of the Service;
(b) incur Common Costs; and
( ( c) take such other action (including, but not
limited to, the execution, acknowledgement and delivery of
documents) as the Committee may deem necessary or appropriate
to provide for the Service, perform its obligations under this
Agreement and otherwise implement the Service and this
Agreement.
Any contract with the Contractor or other Person entered into
( by the Committee as agent for the Parties shall be executed by
the Committee in the name of "One-Call Operating Committee" or
a substantially similar name and shall be signed by at least
seventy-five percent (75%) of the total number of Committee
members.
2.3 Committee POlicies, etc. The Committee shall adopt,
periodically review and revise as it deems appropriate such
policies, procedures, guidelines, rules and requirements as the
Committee may deem appropriate for the implementation of the
Service and this Agreement. The Committee shall provide each
party notice of, and each Party shall comply with, such
policies, procedures, guidelines, rules and requirements.
2.4 Specific Requirements. Without limiting the
generality of paragraph 2.3, each party shall:
( a) furnish, operate and maintain telephone,
teleprinter, facsimile and other equipment required to
interface such Party with the Service;
(b) cooperate and coordinate with, and furnish
information to, the Committee and the Contractor as required
for the implementation of the Service and this Agreement;
(c) promptly and courteously respond to any
request, received by such Party through the Service, for
location of such Party's subsurface utility facilities; and
(d) pay before delinquency all charges and other
amounts payable by it for use of the Service.
2.5 Equal Opportunity Compliance. Each Party shall
comply with Executive Order No. 11246, the Rehabilitation Act
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of 1973 and the Vietnam Era Veterans' Readjustment Assistance
/ .ct of 1972 and all of the orders, rules and regulations
I promulgated thereunder (including, but not limited to, 41
C.F.R. Section 60-1, 41 C.F.R. Section 60-250 and 41 C.F.R.
Section 60-741), all as the same may have been or may be
amended. The "equal opportunity clause" of 41 C.F.R. Section
60-1.4, the "Affirmative Action Obligations for Disabled
Veterans and Veterans of the Vietnam Era" clause of 41 C.F.R.
Section 60-250.4 and the "Affirmative Action for Handicapped
Workers" clause of 41 C.F.R. Section 60-741.4 are incorporated
herein by this reference. Each Party certifies that segregated
facilities (within the meaning of 41 C.F.R. Section 60-1.8) are
not and will not be maintained or provided for its employees
and that it will not permit its employees to work at any
location under its control where segregated facilities are
maintained. Each Party Jhall obtain a similar certification
from other parties as required by 41 C.F.R. Section 60-l~8.
This paragraph shall apply only if an to the extent required by
applicable law.
Section 3. The Committee.
3.1 Composition. The Committee shall be composed of as
many members as there are Sponsors. Each Sponsor shall
designate one Committee member and one alternate. The
alternate designated by a Sponsor may vote and otherwise act in
the place of the Committee member designated by such Sponsor.
A Sponsor may at any time replace the Committee member or
alternate designated by it by giving written notice of the
replacement to the other Committee members. The names,
addresses and telephone numbers of the Committee members and
alternates on the date of this Agreement are listed in the
attached Exhibit D.
3.2 Committee Members. Any Committee member may call a
meeting of the Committee by giving all other Committee members
notice thereof at least three (3) business days in advance of
the meeting. All meetings of the Committee shall be held at
the One-Call office or at such other place as may be determined
by the Committee. Presence at a meeting by the Committee
member or alternate designed by a Sponsor shall constitute a
waiver by that Committee member of notice of the meeting and
any objection to the place of the meeting. A meeting of the
Committee may be held by conference telephone or similar
communications equipment by means of which all members
partiCipating in the meeting can hear each other at the same
time; participating by such means shall contstitute presence at
such meeting. Minutes shall be kept of each Committee meeting
\ and provided to all Committee members.
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3.3 Manner of Acting by the Committee. The Committee
I ay act by consensus, by adoption pursuant to vote taken at a
! meeting of the Committee or by written instrument signed by all
of the Committee members.
3.4 Voting of the Committee. On each matter put to a
vote of the Committee, each Committee member shall be entitled
to cast one ( 1 ) vote. Any matter put to a vote of the
Committee shall be deemed adopted by the Committee upon
receiving the affirmative vote of more than fifty percent (50\)
of the total number of Committee members, except as otherwise
specified in this Agreement and except that all of the
following shall require the affirmative vote of at least
seventy-five percent (75\) of the total number of Committee
members for adoption:
( a) any change in the indentity of the Contractor;
(b) any change in the Fiscal Period;
(c) any change in the location of the One-Call
Office;
(d) termination of the Term;
( e ) any change in the charges for use of the
Service pursuant to paragraph 4.1;
( f ) the authorization of approval of any costs as
Common Costs (including, but not limited to, the approval of
any budget of the estimated Common Costs to be incurred to
provide the Service during any Fiscal Period);
(9) the establishment of any bank account pursuant
to paragraph 4.6;
(h) the approval of any application to become a
Sponsor of any County;
(1) the approval of an application for expansion
of the Service Area under paragraph 5.2;
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( j) any contract between the Contractor or any
other Person and the Committee, as agent for the Parties;
( k ) the authorization of any Person, or the
delegation of any authority (e.g., by appointment of an agent
or otherwise), to enter into any contract on behalf of the
Parties with regard to implementation of the Service or this
Agreement;
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(1 ) the establishment of any sinking funds or
eserves (other than reasonable reserves for working capital in
. the ordinary course of perfomring the Service) for
contingencies and other purposes in connection with performance
of the Service;
(m) the adoption or revision of an insurance
program pursuant to paragraph 6.1; and
(n) any amendment of this Agreement pursuant to
paragraph 9.4.
Section 4. Payment and Allocation of Common Costs
4.1 Establishment of Charges. The Committee shall
establish charges for use of the Service. Such charges shall
be fair, reasonable and nondiscriminatory. The Committee may
establish different charges for different classes of users;
provided that there is a reasonable basis for distinguishing
different classes of users and for establishing different
charges for different classes. The charges in effect on the
date of this Agreement are set forth in the attached Exhibit
.E. Such charges are presently assessed only against the
Parties; however, the Committee may, in its discretion,
assessed charges for use of the Service by others. The
Committee may change the charges effective for the Service
provided during any Fiscal Period; provided that, with regard
to changes assess against the Parties, the Committee shall give
the Parties written notice of the change at least ninety (90)
days prior to the effective date of the change; and provided
further that any material change in the formula or methodology
for determining charges shall be subject to the approval of
each Sponsor.
4.2 Charges Based on Common Costs. All revenues received
from charges for use of the Service shall be applied toward
payment of the Common Costs. At least ninety (90) days prior
to the commencement of each Fiscal Period, the Committee shall
approve a budget of the estimated Common Costs, to be incurred
to provide the Service during such Fiscal Period. Attached as
Exhibit F is the budget of estimated Common Costs to be
incurred to provide the Service during the Fiscal Period which
includes the date of this Agreement, as approved by the
Committee. For each Fiscal Period commenCing after 1986 or
such later date as may be specified by unanimous vote of the
Committee, the Committee shall endeavor to establish charges
designed to produce revenues sufficient to pay all of the
Common Costs for such Fiscal Period.
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4.3 Payment of Excess Common Costs. All Common Costs
~nd revenues from charges for use of the Service shall be
dllocated among the Counties in accordance with equitable
procedures and principles established by the Committee. If,
with respect to any period specified by the Committee, the
Common Costs allocated to any County exceed the revenues
allocated to that County, then the excess shall be borne by the
Sponsors of such County. If the County has more than one
Sponsor, the excess shall be allocated among the Sponsors as
agreed by them or, if they have not agreed to such an
allocation, then in proportion to the charges assessed against
them for use of the Service during the period with respect to
which the excess was incurred.
4.4 Payment. The Committee shall establish procedures
for the determination, billing, payment and collection of
charges for use of the Service, excess Common Costs payable by
the Sponsors and other amounts payable under this Agreement.
Delinquent payments shall be subject to such late charges and
interest as may be established by the Committee from time to
time; however, payment of such late charges and interest shall
not excuse or cure any delinquent payment.
4.5 Soonsor's Right to Cure Default. If any Party shall
default in the payment of any charges or other amounts due for
the Service provided in any County, any Sponsor as to such
County may demand that such default be cured. If the
defaulting Party shall fail to cure the default within ten (10)
days after receipt of such demand, the Sponsor may, on behalf
of the defaulting Party, advance the amount remaining in
default. Such advance shall be treated as a loan to the
defaulting Party bearing interest at the prime rate quoted from
time to time by Seattle-First National Bank plus two percent
(2%) or at the maximum rate permitted by applicable usury law,
whichever is less, computed daily, compounded quarterly. The
loan shall be payable ten (10) days after demand for payment is
received by the defaulting Party from the advancing Sponsor.
The rights of the advancing Sponsor set forth in this paragraph
are in addition to, and not in lieu of, any other rights or
remedies afforded under this Agreement, by law or otherwise, on
account of the default, the loan or the failure of the
defaulting Party to repay the loan as provided for in this
paragraph.
4.6 Bank Accounts. All revenues received on account of
the Service shall be deposited in such bank account or accounts
at such bank or banks as shall be selected from time to time by
the Committee. All drafts, cheeks, bills and cash which may be
deposited immediately in such account or accounts in the same
F~~- in which they are received.
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/' 4.7 Books and,Records. The Committee shall provide for
( complete and accurate set of books and records of the Common
Costs, permitting allocation of the Common Costs among the
Counties in accordance with paragraph 4.3. Such books and
records shall be kept in accordance with generally accepted
I accounting practices applied in a consistent manner, correctly
reflecting all transactions involving Common Costs. Unless
otherwise directed by the Committee, such books and records
shall be maintained on the cash basis. Such books and records
shall be kept at the One-Call Office. Each Party shall have
access to such books and records and the right to examine, copy
and audit the same during normal business hours. The Committee
shall cause such books and records to be audited not less
frequently than annually by an independent certified public
accountant selected by the Committee. The Committee s.lall
provide each Party with certified financial statements for each
Fiscal Period (inClUding, but not necessarily limited to, a
balance sheet and a statement of results for the Fiscal Period)
promptly after the end of such Fiscal Period.
Section s. Changes in Parties in the Service Area.
5.1 Additional Parties. Any Person that owns or
operates subsurface utility facilities (inClUding, but not
necessarily limited to, any electric, gas, telephone, water,
cable television or communications distribution system) within
the SerVice Area shall become a Party upon execution of a
Subscription Agreement and acceptance of such Subscription
Agreement by the Committee. The Committee shall not
unreasonably withhold or delay its acceptance of any
SUbscription Agreement tendered for acceptance. Any Party that
desires to become a Sponsor of any County shall apply to the
Committee for approval. Such application shall be in such form
and content, and supported by such documents and information,
as may be prescribed from time to time by the Committee. Such
Party shall become a Sponsor only upon the Committee's approval
of the application and the Party's agreement to act as a
Sponsor in accordance with any terms and conditions imposed by
the Committee in its approval.
5.2 Expansion of the Service Area. Any Party may apply
to the Committee for the expansion of the SerVice Area by the
addition of a proposed County in which such Party owns or
operates subsurface utility facilities. Such application shall
be in such form and content, and supported by such documents
and information, as may be prescribed from time to time by the
Committee. Without limiting the generality of the foregoing,
the application shall include such Party's agreement to act as
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Sponsor for the prqposed County. The Committee may reject
( ny application for expansion of the Service Area, with or
., without a statement of the reasons or basis for the rejection.
The Committee may approve the application, with or without
conditions (e.g., as to the Sponsor's obligation to pay any
start-up costs incurred to establish the Service in the
proposed County). The proposed County shall become a County
and part of the Service Area only upon the Committee's approval
of the application and the Sponsor's agreement to any
conditions imposed by the Committee in its approval.
5.3 Termination of Participation As to Any County. Any
Party may terminate its participation in the Service for any
County:
(a) effective as of the end of any Fiscal Period
by giving the Committee members written notice of such
termination at least sixty (60) days prior to the commencement
of such Fiscal Period; or
(b) effective as of the effective date of any
increase in the charges payable by such Party for use of the
Service in such County made by the Committee pursuant to
paragraph 4.1, provided that such Party gives the Committee
members written notice of such termination at least sixty (60)
days prior to the effective date of such increase.
rf such Party is a Sponsor as to the County with respect to
which the termination applies, such Party shall give each other
Party who participates in the Service for such County written
notice of such Party's intention to terminate its participation
at least one hundred eighty (180 ) days prior to giving the
Committee members notice of such termination. If after such
termination there remains no Sponsor as to the County, the
County shall be deleted from the Service Area effective as of
the effective date of such termination. No termination
pursuant to this paragraph shall relieve or release any Party
from any of its obligations with respect to charges accrued,
Common Costs incurred or any other liability accrued or
incurred prior to the effective date of such termination.
5.4 Withdrawal As a Party. Any Party may withdraw as a
Party:
(a) effective as of the end of any Fiscal PeriOd
by giving the Committee members written notice of such
withdrawal prior to the commencement of such Fiscal Period;
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(b) effective as of the effective date of any
i, ncrease in the charges payable by such Party for use of the
'~ervice made by the Committee pursuant to paragraph 4.1,
provided that such Party gives the Committee members written
notice of such withdrawal at least thirty (30) days prior to
i the effective date of such increase; or
( c ) effective as of the effective date of any
amendment of this Agreement made by the Committee pursuant to
paragraph 9.4, provided that such Party gives the Committee
members written notice of such withdrawal at least thirty (30)
'days prior to the effective date of such amendment.
If such Party is a Sponsor as to any County, such Party shall
give each other Party who participates in the services for such
County written notice of such Party's intention to withdraw as
a Party at least forty-five (45) days prior to giving the
Committee members notice of such withdrawal. If after such
withdrawal there remains no Sponsor for such County, such
County shall be deleted from the Service Area effective as of
the date of such withdrawal. No withdrawal pursuant to this
paragraph shall relieve or release any Party from any of its
obligations with respect to charges accrued, Common Costs
incurred or any other liability accrued or incurred prior to
the effective date of such withdrawal.
Section 6. Insurance.
6.1 Insurance Program. The Committee shall adopt,
periodically review and revise as it deems appropriate an
insurance program for the protection of the Contractor and each
Party from claims, losses, harm, liabilities, damages, costs
and expenses arising out of personal injury (including death)
or property damage that may occur in connection with the
Service. The insurance program shall include:
( a) insurance to be maintained by the Contractor;
and
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I (b)
" insurance to maintained by each Party. \
6.2 Policy Provision. All insurance required to be
maintained pursuant to the insurance program shall be placed
with such insurers, under such forms of policies and with such
coverages, limits, exclusions, deductibles, waivers of
subrogation and other pOlicy provisions as may be specified by
the Committee. Each of the Contractor's policies of insurance
( shall name each Party as an additional insured, with losses
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1ayable to each insured and additional insured for its own
( oenefit as its interests ~ay appear.
6.3 Evidence of Insurance. The Contractor and each
Party shall deliver to the Committee such certificates of
insurance and other evidence of the insurance required to be
maintained pursuant to the insurance program (such as copies of
the applicable insurance policies) as the Committee may request
from time to time.
Section 7. Committee Determinations and Other Orders.
7.1 General. The Committee shall have the power and
authority to issue interpretations, constructions,
clarifications, determinations, instructions, directions and
other orders pertaining to the implementation of this
Agreement. Such power and authority may be exercised at the
request of any Party or upon the Committee's own initiation.
7.2 Resolution of Controversies. Without limiting the
generality of paragraph 7.1, any controversy among the Parties
or anyone or more of them relating to the interpretation,
construction, clarification or implementation of this Agreement
shall, upon demand of any Party involved in the controversy, be
submitted to the Committee for determination. The Committee
shall promptly send notice of the demand to each Party involved
in the controversy (a "Participating Party"). Within
twenty-one (21) days after receipt of such notice or such
longer period as may be permitted by the Committee, each
Participating Party shall set forth in writing a statement of
its position on the controversy and submit such statement to
the Committee and to each of the other Participating parties.
Within seven (7) days after receipt of a Participating Party's
statement of position, any other participating Party may submit
to the Committee and each other Participating Party a written
response to that statement. The Committee may, at the request
of any Participating Party or on the Committee's own
initiative, provide an opportunity for oral presentation of the
Participating Parties' respective positions. The Participating
Parties shall provide the Committee with such information
pertaining to the controversy as any Committee member may
reasonably request. The Committee shall issue to each of the
Participating parties a written determination of the
controversy, setting forth the reasons and basis for the
determination.
7.3 Protest of Committee Orders. Any interpretation,
construction, clarification, determination, instruction,
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1irection or other order issued by the Committee under this
I 3ect ion 7 shall be fi nal :and bi nding upon each Par ty, unless
\ within twenty-one (21) days after such Party receives written
notice of the order such Party delivers to the Committee a
written protest to the order, setting forth in a detailed and
clear manner the reasons and basis for the protest. The
Committee shall issue a written response to each such protest.
Notwithstanding any protest, each Party shall proceed with
performance under this Agreement in accordance with the orders
of the Committee.
Section 8. Relationship of the Parties.
8.1 No Partnership. This Agreement shall not be
interpreted or construed to create or evidence any partnership
among the Parties or anyone or more of them or to impose any
partnership obligation or liability upon any Party. Except as
specifically provided in paragraph 2.2, this Agreement does not
authorize any Party to: act as an agent or other
representative of any other Party, enter into any contract in
the name or on behalf of any other Party, or incur any
obligation or liability of any other Party.
8.2 The Contractor. The Contractor shall be and act as
an independent contractor in the performance of the Service,
not an agent or other representative of any Party.
8.3 No Third Party Beneficiaries. There are no
third-party beneficiaries under this Agreement (other than the
Committee members and alternates) or of the Service. This
Agreement shall not be interpreted or construed to confer any
right or remedy upon any Person (other than the Parties and the
committee members and alternates) or to relieve or release any
Person (including, but not limited to, the Contractor) from any
obligation or liability to any Party. Without limiting the
generality of the foregOing, the Service is for the sole
benefit of the Parties and not for the benefit of any other
Person.
8.4 No Dedication of Facilities. This Agreement shall
not be interpreted or construed to constitute or evidence any
dedication of facilities owned or operated by any Party (or any
portion thereof) to the public or to any other Party.
8.5 Several Obligations. The Obligations and
liabilities of each Party under this Agreement are several, not
joint. No Party shall, by virtue of this Agreement, be
responsible for the obligations, liabilities, acts or omissions
of any other Party. Without limiting the generality of the
foregoing:
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8.5.1 No Party shall be responsible for the charges and
f Jther amounts payable with respect to the Service provided to
any other Party (except to the extent that the failure to pay
such amounts is taken into account in an increase in the
charges established by the Committee under paragraph 4.1 or the
excess Common Costs to be borne by a Sponsor under paragraph
4.3).
8.5.2 Each Party shall be solely responsible for its
response to any request, received by such Party through the
Service, for location of such Party's subsurface utility
facilities.
8.5.3 To the fullest extent permitted by applicable law,
each Party ("First Party") shall defend, indemnify and hold
harmless each other Party and each Committee member and
alternate from any and all claims, losses, harm, liabilities,
damages, costs and expenses (including, but not limited to,
reasonable attorneys' fees) arising out of any actual or
alleged negligence, act or, in the case of an actual or alleged
duty to act, failure to act by the First Party in connection
with the Service (including, but not limited to, the First
Party's response or failure to respond to a request, received
by the First Party through the Service, for the location of the
First Party's subsurface utility facilities). However, the
foregoing shall not require the First Party to defend,
indemnify or hold harmless any Person from any claim, loss,
harm, liability, damage, cost or expense to the extent caused
by any actual negligence, act or, in the case of a duty to act,
failure to act by such Person. Without limiting the generality
of the foregoing, the obligations of the First Party under this
paragraph shall apply to claims of an employee or former
employee of the First Party and, in connection with any action
to enforce the provisions of this paragraph, the First Party
expressly waives any defense, immunity or limitation (~, on
the type or amount of damages, compensation, benefits or
liability payable by the First Party) that might otherwise be
afforded under any industrial insurance, workers' compensation,
disability benefit or similar statute, regulation, rule or
order of any governmental authority having jurisdiction
(including, but not limited to, the Washington Industrial
Insurance Act, Title 51 of the Revised Code of Washington).
8.6 Tax Exempt Status. The Parties intend that any
organization created or evidenced by this Agreement shall
constitute an organization exempt from federal income taxes
pursuant to Section 501 of the Internal Revenue Code of 1954,
as amended, or any other statute, regulation, rule or order of
similar import. The Committee is authorized to take any and
all action (including, but not limited to, the preparation,
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~iling and prosecution of. an application of recognition of
( ~xemption under Section 501 of the Internal Revenue Code of
1954, as amended, or any other statute, regulation, rule or
order of similar import) which it deems appropriate or
advisable to carry out or implement such intent.
Section 9. Miscellaneous
9.1 Excused Performance. No Party shall be considered
to be in default in the performance of any of its obligations
under this Agreement (other than any obligations to pay money
on account of any delay or failure to perform caused by
Uncontrollable Forces. Any Party delaying or failing to
perform any of its obligations under this Agreement on account
of any Dncontrollable Forces shall use its best efforts to
promptly cure such delay or failure. If any delay or failure
to perform caused by Uncontrollable Forces affects any
requirement of this Agreement, such requirement shall be
equitably adjusted to reflect such delay or failure.
9.2 Communications. Any notice, request, designation,
direction, statement or other communication under this
Agreement shall be in writing and shall be delivered in person
or mailed, properly addressed and stamped with the required
postage, to such address as the intended recipient shall
specify in its Subscription Agreement. Any Party may change
its address for communications under this paragraph by giving
the Committee members notice of such change in accordance with
this paragraph.
9.3 Entire Agreement. This Agreement sets forth the
entire agreement among the Parties and supersedes any and all
prior agreements with regard to the Service.
9.4 Amendment. This Agreement may be amended from time
to time, in whole or in part, by the Committee; provided,
however, that no amendment shall be binding upon any Party
prior to the expiration of ninety (90) days after such Party's
receipt of notice of the amendment.
\ 9.5 Implementation. Each Party shall take such
reasonable action (inClUding, but not limited to, the
execution, acknowledgement and delivery of documents) as may be
requested by the Committee for the implementation or continUing
performance of this Agreement.
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9.6 Nonwaiver. The failure of any Party to insist upon
( Jr enforce strict performance of any provision of this
Agreement or to exercise any right of remedy under this
Agreement shall not be construed as a waiver or relinquishment
to any extent of its right to assert or rely upon any such
provision, right or remedy in that or any other instance;
rather, the same shall be and remain in full force and effect.
9.7 Severability. The invalidity or unenforceability
of any provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were
omitted.
9.8 Headings. The headings of sections, subsections
and paragraphs of this Agreement are for convenience of
reference only and are not intended to restrict, affect or be
of any weight in the interpretation or construction of the
provisions of such sections, subsections or paragraphs.
9.9 Governing Law. This Agreement shall be
interpreted, construed and enforced in all respects with the
laws of the State of Washington.
9.10 Forum Selection. No Party shall commence or
prosecute any claim, proceeding, suit or legal action to
enforce this Agreement, to recover damages for breach of or
default under this Agreement, or otherwise arising under or by
virtue of this Agreement, other than in the courts of the State
of Washington or the District Court of the United States,
Western District, State of Washington. Each Party hereby
irrevocably consents to the jurisdiction of the courts of the
State of Washington with venue laid in King County and of the
District Court of the United States, Western Division, State of
Washington.
9.11 Successors and Assigns. This Agreement shall be
fully binding upon, inure to the benefit of and be enforceable
by each Party and its successors and assigns. No assignment of
any right or interest in this Agreement (whether by contract,
ooeration of law or otherwise) shall release or relieve any
Party of any of !ts obligations or liabilities under this
Agreement.
9.12 Disposition of Assets at the End of the Term. Any
and all funds or other assets in the control of the Committee
at the end of the Term shall be applied:
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(a) first, to the payment of Common Costs;
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\ (b) second, to the establishment of such reserves,
the purchase of such insurance and the making of such other
provisions as the Committee may specify for the protection
against obligations, liabilities or contingencies that may
arise under or by virtue of this Agreement; and
(c) finally, as the Committee may direct, provided
that the Committee shall not direct any such application that
may jeopardize the tax exempt status of the organization of the
Parties under this Agreement pursuant to Section 501 of the
Internal Revenue Code of 1954, as amended, or any other statue,
regulation, rule or order of similar import.
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