HomeMy WebLinkAbout5.127 Original Contract
, . ,
AMENDED AND RESTATED
MASTER AGREEMENT
for
The
NORTHWEST ONE-CALL
SUBSURFACE WARNING SYSTEM
Original Date of Master Agreement:
April 1, 1986
Amended and Restated:
April 1, 1993
Amended:
January 1,2002
April 15, 2004
Amended and Restated:
October 1, 2005
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CONTENTS
Section 1. .......... Definitions.................... ....... ........................................................... 1
1.1 .......... Specified Definitions..................................................................... 1
1.2.......... Cross-References to Additional Definitions. ................................. 5
Section 2. .......... Performance of the Service............................................................ 5
2.1 .... ....... General........................................................................................... 5
2.2.......... Authority of the Committee........................................................... 5
2.3.......... Contracts...................................................... .................................. 6
2.4.. ........ Committee Policies, Etc................................................................. 6
2.5.......... Equal Opportunity Compliance ..................................................... 7
Section 3. .......... The Committee............ ........... .............................................. ......... 7
3.1.......... Composition................................................................................... 7
3.2.......... Voting for Committee Members.................................................... 7
3.3.......... Regular Elections of Committee Members.................................... 8
3.4.......... Special Elections of Committee Members .................................... 9
3.5.......... Term of Committee Members...................................................... 10
3.6. ......... Committee Meetings.................................................................... 11
3.7.......... Manner of Acting by the Committee ........................................... 11
Section 4. .......... Payment and Allocation of Common Costs................................. 13
4.1.......... Establishment of Charges.............................................. ......... ..... 13
4.2.......... Charges Based on Common Costs..... ........................... ............... 13
4.3.......... Common Costs in Excess of Revenues ....................................... 13
4.4.......... Bank Accounts............................................................................. 14
4.5.......... Books and Records of Common Costs ........................................ 14
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4.6.. ........ Other Committee Records... ..... ................................................... 14
Section 5. .......... The Parties........... .......... .............................................................. 15
5.1 .......... Additional Parties ........................................................................ 15
5.2......... . Termination of Participation........................................................ 15
5.2.1 .......... Voluntary Withdrawal............................................... 15
5.2.2.......... Other Termination...................................................... 15
5.3.......... Utility Group Assignment............................................................ 16
5.4...... .... Annual Meeting... ........................................................................ 16
Section 6. .......... Dispute Resolution and Committee Review................................ 17
6.1.......... Procedure for Dispute Resolution................................................ 17
6.2.......... Exception.......................... ............. .............................................. 18
Section 7........... Administrative Procedures........................................................... 18
7.1... ....... Application................................................................................... 18
7.2.......... Procedures.................................................................................... 18
Section 8. .......... Relationship of the Parties ........................................................... 19
8.1.......... No Partnership............................................................................. 19
8.2... ....... The Contractor............................................................................. 19
8.3.......... No Third Party Beneficiaries ....................................................... 20
8.4........ .. No Dedication of Facilities.......................................................... 20
8.5.......... Several Obligations. ..................................................................... 20
8.6.......... Tax Exempt Status....................................................................... 21
Section 9. .......... Miscellaneous.............................................................................. 21
9.1.......... Excused Performance............................................................. ..... 21
9.2.......... Communications ... ....................................................................... 22
9.2.1 .......... Directed to a Party..................................................... 22
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9.2.2.......... Directed to the Committee......................................... 22
9.3.......... Entire Agreement......... ................................................................ 22
9.4.......... Amendment.................................................................................. 22
9.5.......... Il1).plementation .......... ....... ......... ................................. ................. 22
9.6......... . Nonwaiver.................................................................................... 22
9.7.......... Severability....... ............ ........... ......... ................................... ........ 23
9.8 .. .. .. . ... Headings ...................................................................................... 23
9.9.......... Governing Law............. ..................................................... .......... 23
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9.10........ Forum Selection........... .................................................. ...... ........ 23
9.11........ Successors and Assigns............................................................... 23
9.12........ Disposition of Assets at the End of the Term .............................. 23
9.13........ Effective Date.............................................................................. 24
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Amended and Restated
Master Agreement
for The
Northwest
One-Call Subsurface Warning System
This Agreement, dated as of October 1, 2005, amends and restates in its
entirety the Master Agreement for the Northwest One-Call Subsurface Warning
System, dated as of August 1, 1986. The Parties on the date of this Agreement are
identified in the list that is set forth (or obtained in the manner specified) 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, sewer, 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 facilities, the
Parties have established a one-call location service by which anyone who intends to
dig, excavate, drill, blast or perform other work that might disturb the surface or
subsurface of the earth where subsurface utility facilities are located may call a single
telephone number to notify the Parties that may be affected by the proposed work and
seek such Parties' assistance in locating their respective subsurface utility facilities.
D. The Parties desire to develop formal procedures for the creation of a
committee to administer this Agreement and the contract between the committee and
a third-party contractor who shall perform the one-call location service for the benefit
of the Parties.
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:
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1.1.1 "Annual Meeting" means an annual meeting of the Parties
pursuant to Section 5.4.
1.1.2 "Committee" means the committee described in Section 3.
1.1.3 "Common Costs" means those costs reasonably incurred 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 of 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 co.nsultants, 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 Section 4.5);
(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 anyone or more of them arising out of the performance of the
~ervice, if and to the extent not covered by insurance or the indemnity in
Section 8.5( c).
1.1.4 "Contractor" means the Person engaged from time to time
by the Committee pursuant to Section 2.2(a) to perform the Service. The Contractor
on the date of this Agreement is One Call Concepts.
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1.1.5 "Executive Administrator" means the Person engaged as an
independent contractor from time to time by the Committee pursuant to Section 2.2(a)
to serve as an "Executive Administrator" (or like title established by the Committee)
of the cost-sharing organization established by this Agreement and to perform such
leadership, business and administrative services as are specified by the Committee.
1.1.6 "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.
1.1.7 "Montana Representative" means the Person engaged as an
independent contractor from time to time by the Committee pursuant to Section 2.2(a)
to perform such roving customer service related services with respect to the Service in
the State of Montana as are specified by the Committee.
1.1.8 "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 415 SE
Ankeny Street, Portland, Oregon 97214-1471. The Committee may at any time
establish one or more additional One-Call Offices or change the location of any One-
Call Office.
.1.1.9 "Person" means any corporation, partnership, trust,
governmental authority, individual or any other person or entity.
1.1.10 "Service" means a one-call location service by which a
Person who intends to dig, excavate, drill, blast or perform other work that might
disturb the surface or subsurface of the earth where the subsurface utility facilities of
one or more of the Parties may be located may call a single telephone number to
notify the Parties that may be affected by the proposed work and seek such Parties'
assistance in locating their respective subsurface utility facilities (e.g. by marking the
surface above where the subsurface facilities are located). The Service includes, but
is not necessarily limited to, the following:
(a) the Contractor's receipt of a telephone call from a Person
intending to dig, excavate, drill, blast or perform other work that might disturb
the surface of the earth;
(b) the Contractor's determining the location of the intended work
(e.g., as being within or near the Service Area of any Party or Parties); and
(c) the Contractor's notifying such Party or Parties of the location of
the intended work;
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all so that the Person intending to perform such work may seek the Parties' assistance
in locating its subsurface utility facilities (e.g., by marking the surface above where
the subsurface facilities are located).
1.1.11 "Service Area" means the geographical area to which the
Service applies. The Service Area of a Party includes all areas in which such Party's
subsurface utility facilities are located, as identified by such Party to the Contractor
(e.g., in regularly updated maps showing the boundaries of the area in which a Party's
subsurface utility facilities are located).
1.1.12 "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 B.
1.1.13 "Term" means the period commencing with the date of this
Agreement and ending upon the first of the following to occur:
(a) July 31, 2025;
(b) the date upon which the last of the Parties withdraws as a Party
pursuant to Section 5.2.1; or
( c ) the effective date of any termination of this Agreement by the
Committee pursuant to Sections 2.2(g) and 3.7.2(c).
1.1.14 "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 of 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).
1.1.15 "Utility Group" means a group of Parties recognized by the
Committee as having unique, common and similar interests for purposes of
nominating and electing one representative to serve on the Committee. The
Committee may from time to time make changes in the number, nature or
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classification of Utility Groups by action taken in accordance with Section 7. The
Utility Groups on the date of this Agreement are set forth in the attached Exhibit C.
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
Party
Participating Party
Section 8.5( c)
Introduction
Section 6
Section 2.
Performance of the Service
2.1
General
The Parties shall provide for the performance of the Service by the Contractor
for the benefit of all Parties in their respective Service Areas throughout the Term.
2.2 Authority of the Committee
The Committee shall have the power and authority to do the following on behalf
of the Parties:
(a) enter into, perform and administer one or more contracts with
(i) the Contractor for the Contractor's performance of the Service, (ii) the
Executive Administrator for the performance of the leadership, business and
administrative services specified by the Committee, and (ii) the Montana
Representative for the performance of the customer service related services
specified by the Committee with respect to the Service in the State of Montana;
provided that no such contract shall be for a period in excess of five (5) years;
(b) incur Common Costs;
( c ) adopt and amend policies, procedures, guidelines, rules and
requirements for the implementation of the Service and this Agreement;
( d) render interpretations, constructions and clarifications of this
Agreement;
(e) establish procedures for the determination, billing, payment and
collection of charges for use of the Service, any surcharge under Section 4.3
and any other amounts payable under this Agreement;
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(f) establish, and delegate any authority of the Committee to, any
subcommittee of the Committee;
(g) terminate the Term; and
(h) take such other action (including, but not limited to, the
execution, acknowledgment 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.
2.3 Contracts
Any contract with the Contractor or other Person entered into by the Committee
for the Parties shall be executed in the name of "One-Call Operating Committee" or a
substantially similar name and shall be signed by at least two (2) Committee members
authorized by the Committee to sign the applicable contract.
2.4 Committee Policies, Etc.
Any policies, procedures, guidelines, rules, requirements, or amendments
adopted by the Committee pursuant to Section 2.2( c), any interpretations,
constructions, or clarifications of this Agreement rendered by the Committee pursuant
to Section 2.2( d) and any procedures established by the Committee pursuant to
Section 2.2( e) shall be consistent with the provisions of this Agreement and
applicable law and shall be binding upon each Party. Further, each Party shall:
(a) furnish, operate and maintain telephone, teleprinter, facsimile,
computer (together with associated devices for transmitting and receiving
e-mail, internet and other electronic communications) 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 when the validity of such charges or amounts have not
been appealed pursuant to Section 6' or, if so appealed, when such charges or
amounts have been finally determined payable by the Committee.
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2.5 Equal Opportunity Compliance
Each Party shall comply with Executive Order No. 11246, the Rehabilitation
Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1972 and
all of the orders, rules and regulations promulgated thereunder (including, but not
limited to, 41 C.P.R. Section 60-1, 41 C.P.R. Section 60-250 and 41 C.P.R.
Section 60-741), all as the same may have been or may be amended. The "equal
opportunity clause" of 41 C.P.R. Section 60-1.4, the "Affirmative Action Obligations
for Disabled Veterans and Veterans of the Vietnam Era" clause of 41 C.P.R.
Section 60-250.4 and the "Affirmative Action for Handicapped Workers" clause of 41
C.P.R. Section 60-741.4 are incorporated herein by this reference. Each 'Party
certifies that segregated facilities (within the meaning of 41 C.P.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 shall obtain a similar certification from other
parties as required by 41 C.P.R. Section 60-1.8. This section shall apply only if and
to the extent required by applicable law.
Section 3.
The Committee
3.1
Composition
3.1.1 The Committee shall be composed of as many members as there
are Utility Groups.
3.1.2 A Committee member may designate and, once designated,
replace an alternate by giving written notice of such designation or replacement to the
other Committee members. The alternate designated by a Committee member may
vote and otherwise act in the place of such Committee member.
3.1.3 The names, addresses and telephone numbers of the Committee
members on the date of this Agreement are listed in the attached Exhibit D.
3.2 Voting for Committee Members
The Parties included in each Utility Group shall be entitled to elect one
Committee member to represent the Utility Group on the Committee. In any such
election (i.e., pursuant to Section 3.3 or 3.4 below), each Party shall be entitled to cast
one vote for each dollar paid by such Party pursuant to Section 4 for such Party's use
of the Service during the prior Piscal Year, excluding:
(a) any interest, late payment charges, costs or other amounts paid
by such Party on account of any failure to pay any other amount when due; and
(b) any amount paid after the due date for nominations specified
pursuant to Section 3.3.2 or 3.4.2, as the case may be.
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3.3 Regular Elections of Committee Members
3.3.1 Prior to each Annual Meeting, the Committee shall conduct a
regular election pursuant to this Section 3.3 to elect successors for those Committee
members whose terms expire at that Annual Meeting.
3.3.2 At least sixty (60) days prior to any Annual Meeting when the
term of any Committee member expires, the Committee shall send to the Parties
included in each Utility Group represented by a Committee member to be elected a
written solicitation of nominations for the Committee member to represent such Utility
Group for the following term. Such solicitation shall specify the date determined by
the Committee as the due date by which nominations must be received by the
Committee. Any Party may nominate a candidate for election as the Utility Group's
Committee member by giving the Committee written notice of the nomination prior to
the due date specified in the Committee's solicitation of nominations or by any other
means approved by the Committee.
3.3.3 At least thirty (30) days prior to any Annual Meeting when
the term of any Committee member expires, the Committee shall send to the Parties
included in each Utility Group represented by a Committee member to be elected:
(a) a written ballot including all of the candidates nominated for
such Committee member's position pursuant to Section 3.3.2;
(b) a copy of any resume, statement or other materials furnished by
the nominating Party or the candidate regarding the qualifications of the
candidate, provided that the Committee may exclude any materials that it
deems to be inappropriate, unreasonable or too expensive to copy and send;
( c ) a statement of the number of votes that each Party in the Utility
Group is entitled to cast in the election; and
( d) a statement of the date determined by the Committee as the due
date by which completed ballots must be received by the Committee.
3.3.4 The candidate receiving a majority of the votes cast by Parties
in the Utility Group shall be elected as the Committee member for such Utility Group
effective as of the Annual Meeting for which the election is held. If no candidate
receives a majority of the votes c~st, then the Committee shall conduct a special
election for the applicable Committee member position, but only those two (2)
candidates receiving the most votes in the regular election under this Section 3.3 shall
be candidates in the special election.
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3.4 Special Elections of Committee Members
3.4.1 The Committee shall conduct a special election upon the
occurrence of any of the following events:
(a) in a regular election under Section 3.3 or a special election under
this Section 3.4, no candidate receives a majority of the votes cast by the Parties
in the applicable Utility Group;
(b) a Utility Group does not have a representative on the Committee;
(c) a Committee member's term terminates pursuant to
Section 3.5.4(a) or (b); or
(d) Parties entitled to cast twenty-five percent (25%) or more of the
votes entitled to be cast by all of the Parties included in a Utility Group sign
and deliver to the Committee a written request for a special election to remove
their existing Committee member and elect a successor.
3.4.2 Promptly after the occurrence of any event described in
Section 3.4.1 (b) or (c), the Committee shall send to the Parties included in the Utility
Group represented by the Committee member in question a written solicitation of
nominations for the Committee member to represent such Utility Group for the balance
of such Committee member's remaining term. Such solicitation shall specify the date
determined by the Committee as the due date by which nominations must be received
by the Committee. Any Party may nominate a candidate for election as the Utility
Group's Committee member by giving the Committee written notice of the nomination
prior to the due date specified in the Committee's solicitation of nominations or by
any other means approved by the Committee.
3.4.3 At least thirty (30) days prior to the due date specified
pursuant to (d) below, the Committee shall send to the Parties included in the
applicable Utility Group:
(a) a written ballot including all of the candidates nominated for the
Committee member position pursuant to Section 3.4.2 or, in the case of a
special election under Section 3.4.1(a), the two (2) candidates receiving the
most votes in the prior regular or special election, as applicable;
(b) a copy of any resume, statement or other materials furnished by
the nominating Party or the candidate regarding the qualifications of the
candidate, provided that the Committee may exclude any materials that it
deems to be inappropriate, unreasonable or too expensive to copy and send;
(c) a statement of the number of votes that each Party in the Utility
Group is entitled to cast in the election; and
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( d) a statement of the date determined by the Committee as the due
date by which completed ballots must be received by the Committee.
3.4.4 The candidate receiving a majority of the votes cast by Parties
in the Utility Group shall be elected as the Committee member for such Utility Group
effective as of the date when the Committee notifies the applicable Utility Group of
the results of the election. If no candidate receives a majority of the votes cast, then
the Committee shall conduct another special election for the applicable Committee
member position, but only those two (2) candidates receiving the most votes in the
prior special election under this Section 3.4 shall be candidates in the special election.
3.5 Term of Committee Members
3.5.1 The term of any Committee member elected pursuant to
Section 3.3 or 3.4 shall commence on the effective date of his or her election.
3.5.2 Subject to extension as provided for in Section 3.5.3 and to
earlier termination pursuant to Section 3.5.4:
(a) the term of each Committee member listed in the attached
Exhibit D shall expire on the date of the Annual Meeting in the year specified
in the attached Exhibit D;
(b) the term of each Committee member elected pursuant to
Section 3.3 that commences as of any given Annual Meeting shall expire at the
third Annual Meeting after the commencement of his or her term; and
(c) the term of each Committee member elected pursuant to
Section 3.4 (excluding any special election under Section 3.4.1(a) arising out of
a regular election) shall expire upon the expiration of the remaining balance of
the term of any such Committee member's predecessor.
3.5.3 In the event a special election is conducted pursuant to
Section 3.3.4 to elect a successor for a Committee member whose term would
otherwise expire under Section 3.5.2, the term of such Committee member shall be
extended pending completion of the special election and shall expire on the
commencement date of the term of his or her successor.
3.5.4 The term of any Committee member shall terminate prior to
the expiration of his or her term pursuant to Section 3.5.2 upon the occurrence of any
of the following events:
(a) the death of the Committee member;
(b) the Committee member resigns by giving the Committee written
notice of such resignation; or
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( c) a successor IS elected pursuant to a request under
Section 3.4.I(e).
3.6 Committee Meetings
3.6.1 The Committee shall have regular meetings as determined by
the Committee, but not less than once in each calendar quarter. The Committee shall
give all Parties reasonable advance written notice of the time and place of its regular
meetings (e.g., by publication of the schedule for regular meetings in a newsletter or
other materials distributed to all Parties).
3.6.2 The Committee shall have special meetings as determined by
the Committee. Further, any two (2) or more Committee members may call a special
meeting of the Committee by giving all other Committee members notice thereof at
least five (5) business days in advance of the meeting. The Committee shall use
reasonable efforts to give all Parties reasonable advance notice of any special
meetings of the Committee whenever practicable in the circumstances, taking into
account the time permitted, costs of the notice, the agenda of the meeting and other
pertinent factors.
3.6.3 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 such member's designated alternate shall
constitute a waiver by that Committee member of notice of the meeting and any
objection to the place of the meeting.
3.6.4 Minutes shall be kept of each Committee meeting and
provided to all Committee members. Each Party shall have access to the minutes of
any Committee meeting and the right to examine and copy the same at its own
expense during normal business hours at the One-Call Office upon reasonable
advance notice to the Committee.
3.6.5
Any Party may attend and observe any Committee meeting.
3.7 Manner of Acting by the Committee
3.7.1 The Committee may act by hdoption pursuant to vote taken at
a meeting of the Committee in accordance with Section 3.7.2 or by written instrument
signed by all of the Committee members.
3.7.2 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 a majority of the total number of Committee members, except as
otherwise specified in this Agreement and except that all of the following shall
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require the affirmative vote of at least two-thirds of the total number of Committee
members for adoption:
(a) any change in the Fiscal Period;
(b) any change in the location of the One-Call Office;
(c) termination of the Term pursuant to Section 2.2(g);
(d) any change in the number, nature or classification of Utility
Groups under Section 1.1.15;
( e) any change in the charges for use of the Service pursuant to
Section 4.1;
(f) the authorization or 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);
(g) the imposition of any surcharge pursuant to Section 4.3(b);
(h) the termination of any Party's participation in the Service
pursuant to Section 5.2.2;
(i) the selection of the Contractor, Executive Administrator and the
Montana Representative, the terms' of any contract between the Contractor,
Executive Administrator, Montana Representative or any other Person and the
Committee and any extension or amendment of any such contract;
(j) 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;
(k) the establishment, and delegation of any authority of the
Committee to, any subcommittee of the Committee;
(1) the adoption or amendment of any policy, procedure, guideline,
rule or requirement pursuant to Section 2.2( c);
(m) the rendering of any interpretation, construction or clarification of
this Agreement pursuant to Section 2.2( d);
(n) the establishment of procedures for the determination, billing,
payment and collection of charges for use of the Service, any surcharge under
Section 4.3 and other amounts payable under this Agreement pursuant to
Section 2.2(e);
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( 0) the establishment of any sinking funds or reserves (other than
reasonable reserves for working capital in the ordinary course of performing the
Service) for contingencies and other purposes in connection with performance
of the Service; and
(p) any amendment of this Agreement pursuant to Section 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. Such charges are presently assessed only against the Parties;
however, the Committee may, in its discretion, assess charges for use of the Service
by others. Subject to the procedures outlined in Section 7, the Committee may at any
time change the charges effective for the Service provided during any Fiscal Period.
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. For each Fiscal Period, the Committee shall endeavor to establish charges
designed to produce revenues sufficient to pay all of the Common Costs for such Fiscal
Period.
4.3 Common Costs in Excess of Revenues
If, at the close of any Fiscal Period, the Common Costs exceed the revenues
received from charges for the Parties' use of the Service, the Committee may:
(a) pay the excess during the next or succeeding Fiscal Periods (e.g.,
through charges for use of the Service in such later Fiscal Periods);
(b) impose and collect from each Party a one-time surcharge equal to
the total excess amount multiplied by a fraction, the numerator of which is the
total charges properly payable by such Party for use of the Service during the
relevant Fiscal Period and the denominator of which is the total charges
properly payable by all Parties for use of the Service during the same Fiscal
Period; or
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( c ) pay the excess out of any outstanding reserves or excess revenues
from prior Fiscal Periods.
Any surcharge under (b) above shall not constitute or be deemed to constitute a change
in the charges under Section 4.1 and shall not be subject to the procedures set forth in
Section 7. Each Party shall pay such surcharge within sixty (60) days after the date of
the invoice therefor or such larger period of time as may be specified by the
Committee.
4.4 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, checks, bills and cash which may from time to time be
received on account of the Service shall be deposited immediately in such account or
accounts in the same form in which they are received.
4.5 Books and Records of Common Costs
The Committee shall provide for a complete and accurate set of books and
records of the Common Costs. Such books and records shall be kept in accordance
with generally accepted accounting practices applied in a consistent manner, correctly
reflecting all transactions involving ~ommon 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 or such other location as may be
specified by the Committee. Each Party shall have access to such books and records
and the right to examine, copy and audit the same at its own expense during normal
business hours upon reasonable advance notice to the Committee. 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 Committye. The
Committee shall 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.
4.6 Other Committee Records
All other records of the Committee relating to this Agreement (including, but
not limited to, copies of all written contracts with the Contractor or any other Person
entered into by the Committee) shall be kept at the One-Call Office or such other
location as may be specified by the Committee. Each Party shall have access to such
records and the right to examine, copy and audit the same at its own expense during
normal business hours upon reasonable advance notice to the Committee.
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Section 5.
The Parties
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 may 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.
5.2 Termination of Participation
5.2.1 Voluntary Withdrawal
Any Party may withdraw as a Party:
( a) effective upon the expiration of not less than one hundred twenty
(120) days after such Party gives the Committee written notice of such
withdrawal;
(b) effective as of the effective date of any increase in the charges
payable by such Party for use of the Service made by the Committee pursuant to
Section 4.1 (e.g., excluding any increase or surcharge pursuant to Section 4.3),
provided that such Party gives the Committee written notice of the withdrawal
at least forty-five (45) days prior to the effective date of the increase; or
( c) effective as of the effective date of any amendment of this
Agreement made by the Committee pursuant to Section 9.4, provided that such
Party gives the Committee written notice of such withdrawal prior to the
expiration of thirty (30) days after the effective date of the amendment.
No withdrawal pursuant to this section 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.
5.2.2 Other Termination
In the event of any material breach of or default under this Agreement
(including, without limitation, any refusal or failure to pay when due any charges for
use of the Service, any surcharge under Section 4.3 or any other amount payable
under this Agreement) by any Party, the Committee may terminate such Party's
participation in the Service and rights under this Agreement as follows:
(a) A Notice of Termination shall be sent to the Party by first-class
mail, postage prepaid, and shall include (i) a statement outlining the reason(s)
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for such termination, (ii) the effective date of such termination, (iii) the action
the Party must take to cure the stated breach or default, and (iv) notice of the
Party's right to have the Committee review the Notice of Termination pursuant
to Section 6.
(b) The actual termination of a Party's participation in the Service
shall take place, if at all, not less than thirty (30) days after the Notice of
Termination is placed in the mail addressed to such Party and only if the breach
or default is not cured prior to the expiration of such thirty (30) day period.
(c) The Committee shall not be required to give the Party any
warning or notice of the ordered termination other than the Notice of
Termination.
(d) If the Party disputes any termination under this Section 5.2.2, the
Party may submit the dispute for review and resolution under Section 6 by
giving the Committee written notice thereof prior to the time and date
termination is scheduled to occur, as specified in the Notice of Termination. If
the Party timely disputes the termination, actual termination will be stayed
pending completion of the procedures under Section 6.
Termination pursuant to this section shall not 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.
5.3 Utility Group Assignment
Each Party shall select and be assigned to one (1) Utility Group at the time of
submittal and acceptance of its Subscription Agreement. Exhibit A lists (or specifies
the means for obtaining a list of) the Parties on the date of this Agreement by Utility
Group. Parties eligible to participate in multiple Utility Groups may be assigned to
only one (1) Utility Group at any time. Such Parties may change their Utility Group
assignment by giving written notice to the Committee; provided that such change shall
be effective as of the next Annual Meeting falling at least forty-five (45) days after
the Committee's receipt of the Party's written notice.
5.4 Annual Meeting
An annual meeting of the Parties shall be held on the third Friday in September
of each year at 9:00 a.m. at the One-Call Office (or on such other date and at such
other time or place as the Committee may direct) for the purpose of electing
Committee members and transacting such other business as may properly come before
the meeting.
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Section 6.
Dispute Resolution and Committee Review
6.1
Procedure for Dispute Resolution
Except as otherwise provided in Section 6.2, any controversy or dispute
between the Parties, or anyone or more of them, or between a Party and the Contractor
arising under this Agreement and any request for Committee review of an issue or
dispute that is specifically authorized under any provision of this Agreement or
document adopted pursuant to this Agreement shall be heard and resolved by the
Committee as follows:
(a) A Party seeking Committee review shall send a written Notice of
Request for Committee Review to the Committee and to each Party involved in
the issue, controversy or dispute (a "Participating Party"). Unless a shorter
period of time is specified elsewhere in this Agreement or in any document
adopted pursuant to this Agreement, such notice must be received by the
Committee within ninety (90) days after the occurrence of the event(s) giving
rise to the issue, controversy or dispute in question.
(b) The Notice of Request for Committee Review shall set forth in
reasonable detail (i) the reason(s) for the request, (ii) the identity of each
Participating Party, and (iii) any demand for a formal hearing before the
Committee.
(c) Within fifteen (15) days after the Notice of Request for
Committee Review is sent, each Participating Party (including the Party who
initiated the review process) shall set forth in writing a statement of its position
and submit such statement to the Committee and to each of the other
Participating Parties, if any.
(d) Within fifteen (15) days after receipt of a Participating Party's
statement of position, any other Participating Party may submit to the
Committee and to each other Participating Party -a written response to that
statement.
(e) If demanded by the requesting Party in its Notice of Request for
Committee Review, demanded by any other Participating Party in its position
statement, or on the Committee's own initiative, a hearing will be held within
thirty (30) days after the end of the fifteen (15) day response period set forth in
section (d) above. In that event, the Committee shall send a Notice of Hearing
to each Participating Party at least fifteen (15) days prior to the date of the
scheduled hearing.
(f) At the hearing before the Committee, if any, each Participating
Party shall be entitled to (i) present all relevant evidence, (ii) question any
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witness called by the Committee or any other Participating Party, (iii) give an
oral statement of its position, and (iv) require the attendance of the Contractor
or any other Party having relevant evidence.
(g) Within fifteen (15) days after the end of the thirty (30) day period
specified in section (e) above (whether or not a hearing is actually held), the
Committee shall issue to each of the Participating Parties a written decision
setting forth in reasonable detail its reasons and bases for the determination.
The written decision of the Committee shall be final and binding on the Parties. The
failure of any Party to comply with the Committee's written decision may result in the
action specified by the Committee (e.g., termination, suspension, etc.), if any, being
taken on the date specified without further notice to the noncomplying Party. Under
no circumstances shall a Party be entitled to seek Committee review of any issue,
controversy or dispute more than once without the Committee's prior written consent.
6.2 Exception
Section 6.1 shall not apply to any dispute or controversy ansmg under
Section 8.5.
Section 7.
Administrative Procedures
7.1
Application
The procedures outlined in Section 7.2 shall apply only to proposals by the
Committee to adopt:
(a) changes in the charges for use of the Service or any rate schedule
related thereto pursuant to Section 4.1;
(b) changes in the number, nature or classification of Utility Groups;
(c) amendments to this Agreement pursuant to Section 9.4; and
(d) such other proposals as the Committee may determine to make
subject to the procedures outlined in Section 7.2.
7.2 Procedures
Committee proposals to which this section applies shall not be finally adopted
by the Committee except as follows:
(a) The Committee shall send a written Notice of Proposal to each
Party, which shall (i) describe the proposal in reasonable detail, (ii) notify the
Party of its right to submit written comments on the proposal for a period of at
least thirty (30) days from the date of the Notice of Proposal, (iii) notify the
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Party of its right to request a hearing on the proposal before the Committee,
and (iv) notify the Party that the proposal will be adopted and take effect, if at
all, ninety (90) days from the date of the Notice of Proposal.
(b) Each Party shall have the right to submit written comments on the
Committee proposal within thirty (30) days after the date of the Notice of
Proposal.
(c) If requested by a Party in its written comments submitted
pursuant to section (b) or on the Committee's own initiative, a hearing on the
proposal will be held not earlier than forty (40) and not later than sixty (60) days
after the date of the Notice of Proposal. In that event, the Committee shall
send each Party a written Notice of Hearing not later than fifteen (15) days
prior to the date scheduled for such hearing.
(d) At the hearing on the proposal before the Committee, if any, each
Party shall be entitled to submit all relevant evidence and make an oral
statement of its position on the proposal.
( e) The Committee may take final action on a proposal at any time
after the end of the thirty (30) day comment period or, if a hearing is held, after
the close of the hearing. The Committee shall notify each Party of any final
action within one hundred twenty (120) days after the date of the Notice of
Proposal.
Action taken on a proposal by the Committee pursuant to section (e) above shall be
final and binding on the Parties and, unless otherwise specified by the Committee, shall
take effect ninety (90) days after the date of the Notice of Proposal. Any action taken
by the Committee pursuant to and in accordance with this Section 7 shall not be
subject to review under Section 6.
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 Section 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.
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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:
(a) No Party shall be responsible for the charges and other 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 Section 4.1 or the excess
Common Costs allocated under Section 4.3).
(b) 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.
( c) 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,
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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 section
shall apply to any claim of an employee or former employee of the First Party
against any other Party. In connection with any action to enforce the provisions
of this section, the First Party expressly waives any defense, immunity or
limitation (e.g., 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). Although the foregoing waiver may
apply to a claim of an employee or former employee of the First Party against
any other Party, it shall not be interpreted or construed to apply to any claim of
any employee or former employee against his or her own employer or former
employer.
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, filing and
prosecution of an application of recognition of exemption 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 Uncontrollable 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.
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9.2 Communications
9.2.1 Directed to a Party
Any notice, request, designation, direction, statement or other communication
directed to a Party 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 section by giving the
Committee notice of such change in accordance with Section 9.2.2.
9.2.2 Directed to the Committee
Any notice, request, designation, direction, statement or other communication
directed to the Committee under this Agreement shall be in writing and shall be
delivered in person or mailed, properly addressed and stamped with the required
postage, to the attention of the "Operating Committee Chair" at the One-Call Office.
The Committee may change its address for communications under this section by
giving the Parties notice of such change in accordance with Section 9.2.1.
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 in accordance with the procedures set forth in Section 7.
9.5 Implementation
Each Party shall take such reasonable action (including, but not limited to, the
execution, acknowledgment and delivery of documents) as may be requested by the
Committee for the implementation or continuing performance of this Agreement.
9.6 Nonwaiver
I
The failure of any Party to insist upon or enforce strict performance of any
provision of this Agreement or to exercise any right or 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.
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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 sections 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 sections.
9.9 Governing Law
This Agreement shall be interpreted, construed and enforced in all respects in
accordance 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, operation of law or otherwise) shall
release or relieve any Party of any of its 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:
(a) first, to the paYment of Common Costs;
(b) second, to the establishment of such reserves, the purchase of
such insurance and the making of such other provisions as the Committee may
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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
statute, regulation, rule or order of similar import.
9.13 Effective Date
This Amended and Restated Master Agreement for the Northwest One-Call
Subsurface Warning System shall be effective as of October 1, 2005.
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LIST OF EXHIBITS
Exhibit
Reference
A
List of Parties
Introduction, Section 5.3
B
Form of Subscription Agreement
Section 1.1.12
C
List of Utility Groups
Sections 1.1.15, 3.5.2(b)
D
List of Committee Members
Sections 3.1.1,
3.5.2(a)
3.1.3,
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I '"
Exhibit A
PARTIES
A list of the Parties as of the date of this Agreement, identified by Utility Group, may
be obtained from the Committee by written request of any Party.
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. .
Exhibit B
SUBSCRIPTION AGREEMENT
TO
MASTER AGREEMENT
FOR THE
NORTHWEST
ONE CALL SUBSURFACE WARNING SYSTEM
The undersigned hereby subscribes and agrees to the Amended and Restated Master
Agreement for The Northwest One Call Subsurface Warning System, dated as of April 15,
2004. All terms defined in the Master Agreement shall have the same meaning when used in
this Subscription Agreement.
By execution of this Subscription Agreement, the undersigned agrees to become a "Party"
under and to be bound by the provisions of the Master Agreement
The undersigned owns or operates the following type(s) of subsurface utility facilities:
Electric
Gas
_Telephone
_Streets and Roadways
Other
Water
Cable Television
Communications
_Transmission Pipelines
The undersigned elects membership in the (choose from Exhibit C)
Utility Group pending further notice to the Committee.
The undersigned elects to be charged for it's use of the Service under the prevailing rate:
Currently = $1.15 per notice, billed monthly
Unless specified otherwise above, the undersigned agrees to be charged for it's use of the
Service under the Rate Schedule No. 1 pending further notice to the Committee.
The undersigned elects to receive locate request notifications by the following means
pending further notice to the Committee.
_Automated Printer/Computer
_Facsimile (FAX)
_Voice (Phone)
_ Email (Computer)
M.\S Il'R AGRbJ-MbN"]
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, , .
This subscription agreement shall apply to the undersigned's subsurface utility facilities
located in the areas identified on the map attached as Appendix A hereto.
Any notice, request, designation, direction, statement or other communication under the
Agreement may be delivered or mailed to the undersigned at the following address:
Attn:
The undersigned acknowledges it's receipt and examination ofa copy of the Master
Agreement and related documentation and has fully satisfied itself as to the nature and extent
of it's rights and obligations there under.
Dated:
By:
Title:
STATE OF
COUNTY OF
On this day of
undersigned, a Notary Public in and for the State of
commissioned and sworn, personally appeared
me known to be the
, 20 _, before me, the
, duly
, to
of
, the corporation that executed within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed of
said corporation for the uses and purposes therein mentioned and on oath stated that
was duly elected, qualified and acting as said officer of the corporation, that
was authorized to execute said and acting as said officer of the corporation, that
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.
NOTARY PUBLIC in and for the State of
residing at
My Appointment Expires:
MASTER AGREEJ\1F.NT
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..I . . ~
Exhibit C
UTILITY GROUPS
Utility Group
1. Counties/State DOT
2. Cities
3. Cable TV
4. Electric
5 . Natural Gas
6. Corridor (e.g., Irrigation, Pipelines and Longline
Telephone)
7. Water & Sewer Districts
8. Telephone
9. State of Montana
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.. .
Exhibit D
LIST OF COMMITTEE MEMBERS
Electnc
Joe Jamga, ChaIrman
Puget Sound Energy
POBox 90868 XRDO I W
Bellevue, W A 98009
425-462-3807
Joe.jamga@pse com
Term expIres Sept 2007
Water/Sewer
Gary Hajek, VIce Chairman
Cross Valley Water DIstrIct
8802 I 80th Street SE
Snohomlsh, W A 98296-4804
425-485-8461 ext 102
gary@crossvalleywater net
Term expIres Sept 2007
CountIes/State DOT
Bryan BaIley
NW RegIOn WSDOT
3700 Nmth Ave S
Seattle, WA 98134
206-764-4250
baIleyb@wsdot wa gov
Term expIres: Sept 2006
Cable TV
JIm Nles
Comcast-Cab]e
4020 Auburn Way N
Aubum,WA 98002
253-864-4382
Jlm_Nles@cable comcast com
Term expIres: Sept 2006
Natura] Gas
MIke Wolfe
Cascade Natural Gas
222 FalTVlew Ave
Seattle, W A 98109
206-381-6726
mwolfe@cngc com
Term expIres Sept 2005
Montana
Kurt Ba]trusch,P E
Energy West
904 Nmth Street N.
Great Falls, MT 59404
406-791-7537
KPBaltrusch@ewst com
Term expIres Sept 2005
Telephone
Terry Jurgens
C/O Qwest
7850-B South Trafton Street
Tacoma, W A 98409
253-597-5564
terry jurgens@qwest com
Term expIres Sept 2007
Support Team - Vendors
One Call Concepts, Inc
Frank Planton - Gen Mgr
1415 SE Ankeny St
Portland, OR 97214-1471
877-668-400 I
fplanton@teleport.org
Comdor
Dave Barnes
BP PIpe Lme Company
2201 Lmd Avenue SW - SUIte 270
Renton, W A 98055
425-235-7736
Davld.Bames@bp com
Term expIres Sept 2006
....
Montana Fle]d Representative
Bud Cnner
140 Wedgewood
Helena, MT 5960]
406-442-3070
uulcrep@msn.com
CItIes/Towns
Bruce Gould, Treasurer
1820 - 216th Ave E
Sumner, W A 98390
253-261-1081
blgould@comcast net
Term expIres Sept 2005
Management
ExecutIve Admmlstrator-UULC Operatmg Commlttee
Don Evans
PO Box 4796
S Colby, W A 98384-0796
877-668-4001, ext 3307, fax 360-871-8102
evans _ dr@msn com
MASTER ~\GREEMEN'I
[/Mastcr Agrccmcnt_05j
I' AGe- 10
I Becky UptO."N_ MasterAgr~ement
5 ~.N~ ~.,Q 7p8:ge 1 I
From:
To:
Date:
Subject:
Becky Upton
evans_dr@msn.com
6/30/052:46PM
Master Agreement
Mr. Evans,
Would you be kind enough to mail a hard copy of the current agreement between the City of Port Angeles
and Northwest One-Call Subsurface Warning System. You can mail the copy to me as set forth below.
Thanks very much.
Becky J. Upton, CMC, City Clerk
City of Port Angeles
321 E. 5th Street
P. O. Box 1150
Port Angeles, W A 98362
cityclerk@cityofpa.us
360-417 -4634
~ESG
~REE FORMAT MESSAGE SENT ON
5-31-05
5. 1:<'1
)ate/Time: 5-31-05 at 5:27 PM
ie~eiving Station: PTANGL01
)ear Valued Utilities Underground Location Center (UULC) Member,
rhe Master Agreement between the members of the Northwest One-Call Subsurface
~arning System, d.b.a., UULC, has been amended and updated to reflect current
:imes and conditions. To view a copy of the Agreement, visit our website:
fww.callbeforeyoudig.com , and click on the "NEWS" button on the left frame.
{ou will be sent to a page where you can view or print a copy. If you would
?refer to have a hard copy mailed to you, contact the UULC Executive Administrato!
/ia Telephone, 1-877-668-4001, ext 3307, via email, evans_dr@msn.com, or via US
nail, UULC - Attn. Don Evans, PO Box 4796, South Colby, WA 98384-0796. Comments
!bout the Agreement are welcomed by the Operating Committee. Please send them, b~
1uly 1, 2005, to the attn. of the "Chairman" at the above email or US mail addres!
)nce all comments, if any, are heard and resolved the revised and updated Agreemer
~ill take affect October 1, 2005. Thank you for your continued support of our
~fforts to preserve and protect your buried utilities from damaged caused by
:iigging.
~espectfully,
)on Evans
JULC Executive Administrator
"
I Becky UR!9!1-EIft{~~-RE:~.Ul"lqe!groQu~d hQcat~'M.asteJ:8~I~~nt ~'~ '.~~-
5-,J~~--1
. Page 1 !
From:
To:
Date:
Subject:
Trenia Funston
Becky Upton
3/3/05 1 :44PM
Fwd: RE: Underground Locate Master Agreement
Becky, here is the agreement. tf
>>> "don EVANS" <evans_dr@msn.com> 03/02/05 07:33PM >>>
Dear Trenia,
Very sorry about the oversight, thank you for bringing it to my attention.
Attached is the current copy of the Master Agreement. Please contact me with
any additional questions or concerns, and thank you for your continued
membership.
Best regards
Don Evans
Executive Administrator
Utilities Underground Location Center
425-766-3412 direct
877 -668-4001, ext. 3307 voicemail
360-871-8192 direct fax
PO Box 4796
South Colby, W A 98384-0796
>From: "Trenia Funston" &It;Tfunston@citvofoa.us&at;
>To: &It;evans dr@msn.com&at;
>SubJect: Underground Locate Master Agreement
>Date: Wed, 02 Mar 2005 10:40:45 -0800
>
>Don, I have been informed by the city clerk that we have not received a
>copy of the Master agreement. The agreement expired in 2004. There
>were some rate changes. We have received that information but not the
>actual agreement. Thanks, Trenia Funston, City of Port Angeles
IBecky Upto~~~lllaster A,g~ree~~~nLd4.do~q ',~:=~' .,_.=~,~u'" . ,,,
Page 1 I
Amended and Restated
Master Agreement
for the
Northwest One-Call
Subsurface Warning System
Ongmal Date of Master Agreement: April I, 1986
Amended and Restated as of Apnll, 1993
Amended and Restated as of January 1,2002
Amended and Restated as of April 15, 2004
~age 2 I
I Becky Uptqn - Ma~!Ei{e:greemen!_94:<!oC'0~0"~" ~":u~~" ~u, " "u
SectIon 1.
Section 2.
SectIOn 3.
CONTENTS
DefinItIons................................................................. .2
1.1
Specified Defimtions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....2
1.2
Cross-References to AdditIOnal
DefinItIons................................................................. .5
Performance of the Service..................... .. . . .. .. . .. . . .. . . . .. . .. ...5
2.1
General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..5
2.2
Authority of the Committee...... ....... ...... ........ ... ............. ...5
2.3
Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
2.4
Committee Policies, Etc............................................... ....6
2.5
Equal Opportumty Compliance.......................................... 7
The CommIttee............................................................ 7
3.1
ComposItion....... ..... ... ... .................................... .........7
3.2
Votmg for Committee Members... .................. ............... ....8
3.3
Regular Elections of CommIttee Members......................... ...8
3.4
Special Elections of Committee Members. ...... ........... ....... ....9
3.5
Term of Committee Members... .......................................11
2
:~~~ky Upton - I\ll~ster Agreeme,nC04 dOS,,^
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Section 4.
Section 5.
Section 6.
3.6
Committee Meetings.................................................. ...12
3.7
Manner of Actmg by the Committee.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Payment and Allocation of Common Costs...... ..... ........... .....14
4.1
Establtshment of Charges.. . ... ... ... ... ...... ....... ........... ... .....14
4.2
Charges Based on Common Costs..................... ................14
4.3
Common Costs m Excess of Revenues............... .................15
4.4
Bank Accounts........................................................ ....15
4.5
Books and Records of Common Costs............ ....................15
4.6
Other Committee Records..................... ....................... ...16
The Parties.............................................................. ..16
5.1
AddItIonal Parties... .. . .. . .. . .. . .. .. .. . .. .. . . .. . .. .. . .. . . .. . .. . . . .. . . .....16
5.2
TerminatlOn of Participation... ... .. . .. . ... ... ... . .. . .... . ... . .. .. . .. . ..16
5.2.1 Voluntary
WIthdrawal. .. . . .. .. .. .. .. .. . .. . . .. . .. . .. .. . .. . . ... ..16
5.2.2 Other Termination...... .......................... .17
5.3
UtIlity Group AssIgnment.. . .. . .. . . ... .. . .. . .. ... .. . .. . . .. .. . . . . ... . .. ..18
5.4
Annual Meeting... . .. . .. . .. .. . .. .. . . . .. .. . .. . . . . .. . .. . . .. . .. .. . .. . . .. . . ..18
Dispute Resolution and CommIttee ReVIew... ... ............... .....18
6.1
Procedure for DIspute ResolutlOn.. . . .. . . . .. . .. . . " . . . . .. . . . . .. . . . .. . ..18
6.2
Exception. .. . .. ... . . . . . . . . . .. . .. . . .. . .. .. . . .. . .. ... .. . . . . .. . ... . . . .. . . . .. ..20
SectlOn 7. AdmmIstrative
Procedures............................................ ....20
7.1 Apphcation... ...... ...... .................. ......... .......... .......... ..20
3
[Se;ky Upton- 'rViastir-, Agre~menC04:doc Page 4 I
7.2 Procedures.............................................................. ...20
Section 8. Relationship of the Parties............................................ ..21
8.1 No PartnershIp... .................................................... .....21
8.2 The Contractor........................................................ ....21
8.3 No Third Party Beneficiaries... ... ........................ .......... ...22
8.4 No Dedication of Facilities............................................ .22
8.5 Several OblIgations..................................................... .22
8.6 Tax Exempt Status..................................................... ..23
Section 9. MIscellaneous........................................................... .23
9.1 Excused Performance.................................................. ..23
9.2 Communications..................... .............. .................... ..24
9.2.1 Directed to a
Party............................................ ..24
9.2.2 DIrected to the Committee................. ....24
9.3 EntIre Agreement..................................................... ....24
9.4 Amendment.............................................................. .24
9.5 ImplementatIon......................................................... ..24
9.6 Nonwaiver.. . . .. ... . .. . .. . .. .. . .. . . . . . .. . .... . . .. . . . .. . ... . .... . ... . .. . .. ..25
9.7 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
9.8 Headings... ........... ................ ...... ............................. .25
9.9 GovernIng Law........................................................ ...25
9.10 Forum Selection... . .. . .. . .. . .. . .. .... ..... .. . .. . ... .. . . .. . ... . . .. . . .. .. ..25
9.11 Successors and Assigns.. . . .. . .. .. . . . . .. . .. . .. . .. . . .. . . . . .. .. . . . . . .. . . . ..25
4
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r-~~ky Upton -:~Mas~~!jgreem"en(04.d2E~
9.12 DISposItion of Assets at the End of the Term....................... .26
9.13 Effective Date........................................................... .26
Amended and Restated Master Agreement
for the
Northwest One-Call Subsurface Warning System
This Agreement, dated as of April 15, 2004, amends and restates In ItS entirety the
Master Agreement for the Northwest One-Call Subsurface Warmng System, dated as of
August 1, 1986. 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 facihtIes (includIng, but not necessarily limIted to, any electric, gas,
telephone, water, sewer, cable television or communicatIOns dIstnbutIOn
system).
B. Each Party desires to protect its subsurface utility facilities from damage,
interruption or interference by anyone who intends to excavate, dnll, blast
or perform other work that might dIsturb the surface or subsurface of the
earth.
C. In order to help protect theIr respective subsurface utIhty facIhtIes, the
PartIes have estabhshed a one-call location servIce by WhICh anyone who
intends to dig, excavate, dnll, blast or perform other work that might
disturb the surface or subsurface of the earth where subsurface utility
facihtIes are located may call a single telephone number to notify the
Parties that may be affected by the proposed work and seek such Parties'
assIstance in locating their respective subsurface utility facilities.
D. The PartIes desire to develop formal procedures for the creation of a
commIttee to admInIster thIS Agreement and the contract between the
commIttee and a thIrd-party contractor who shall perform the one-call
location service for the benefit of the PartIes.
5
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: Becky Upton - Master Agreement_O~L90c
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Agreement
The Parties therefor 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 meamngs, unless the
context clearly requires a dIfferent meaning:
1.1.1 "Annual MeetIng" means an annual meetIng of the
PartIes pursuant to section 5.4.
1.1.2 "Committee" means the commIttee desCrIbed in
section 3.
1.1.3 "Common Costs" means those costs reasonably
incurred by the Parties or anyone or more of them
In connectIOn WIth the SerVIce, but only if and to the
extend 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
hmited to, the follOWIng:
a) payroll and related personnel costs to perform the Service (Including:
salaries, wages, costs of frInge benefits such as retirement benefits,
employee insurance and allowances for sick leave, hohdays 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 supphers furmshIng goods,
services and other Items for performance of the Service (Including, but
not hmited to, compensatIOn payable to the Contractor);
d) attorneys', accountants', and other professional fees incurred In
connection WIth performance ofthe Service (including, but not limited
to, the costs of any audit of the Common Costs performed pursuant to
section 4.5);
e) sales, use, property and other taxes which are Imposed by any
governmental authOrIty In connectIOn WIth performance of the ServIce
6
IBec-ky Upton - Master Agreernint_04.dog
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(other than any taxes imposed upon or measured by the mcome,
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 anyone or more of them arising out of the performance of
the Service, if and to the extent not covered by msurance or the
indemmty m section 8.5 ( c ).
1.1.4 "Contractor" means the Person engaged from tIme
to time by the Committee pursuant to section 2.2 ( a
) to perform the Service. The Contractor on the date
of thiS Agreement is One Call Concepts.
1.1.5 "Fiscal Period" means the fiscal penod adopted
from tIme to tIme by the Committee for budgetmg,
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 endmg 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 1415
SE Ankeny Street, Portland, Oregon 97214-1471.
The COImmttee may at any time estabhsh one or
more additional One-Call Offices or change the
location of any One-Call Office.
1.1.7 "Person" means any corporatlOn, partnership, trust,
governmental authonty, indiVidual or any other
person or entIty.
1.1.8 "Service" means a one-calllocatlOn service by
which a Person who intends to dig, excavate, drill,
blast or perform other work that might disturb the
surface or subsurface of the earth where the
subsurface utihty facihtIes of one or more of the
Parties may be located may call a single telephone
number to notify the Parties that may be affected by
the proposed work and seek such Parties' assistance
m locatmg their respective subsurface utility
factlltIes (e.g. by marking the surface above where
the subsurface factllt1es are located). The Service
7
fBE;ckyupton - Master Agreement_04 do~ ~<,
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includes, but is not necessarily limIted to, the
followmg:
a) the Contractor's receIpt of a telephone call from a Person intending to
dIg, excavate, drill, blast or perform other work that mIght disturb the
surface of the earth;
b) the Contractor's determining the locahon of the mtended work (e.g., as
being withm or near the Service Area of any Party or Parties); and
c) the Contractor's nohfying such Party of Parties of the location of the
mtended work;
all so that the Person intendmg to perform such work may seek the Parties'
assistance m locating Its subsurface uhhty facilities (e.g., by marking the surface
above where the subsurface facilities are located).
1.1.9 "Service Area" means the geographical area to
which the ServIce applies. The ServIce Area of a
Party includes all areas m which such Party's
subsurface utilIty facIlihes are located, as identified
by such Party to the Contractor (e.g., in regularly
updated maps showmg the boundaries of the area in
which a Party's subsurface utility faCilIties are
located).
1.1.10 "Subscription Agreement" means the document, In
such form and content as may be prescnbed from
hme to hme by the Committee, by which a Person
become a "Party" under this Agreement. The form
of SubscriptiOn Agreement prescribed by the
Committee on the date of thiS Agreement is
attached as Exhibit B.
1.1.11 "Term" means the penod commencing with the date
of this Agreement and endmg upon the first of the
following to occur:
a) July 31, 2007
b) The date upon which the last of the Parties wIthdraws as a Party
pursuant to section 5.2.1, or
c) The effechve date of any termInation of thiS Agreement by the
Committee pursuant to sections 2.2 (g) and 3.7.2 (c).
1.1.12 "Uncontrollable Forces" means any cause or
condihon beyond the control of any Party delaYIng
or failIng to perform ItS obligations under this
8
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I Becky Upton - Master Agreement_04 doc
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Agreement, which cause or condItion such Party IS
unable to overcome or have prevented by the
exercise of reasonable dihgence. Uncontrollable
Forces may include, but are not necessarily limited
to, acts of God, acts of the elements, fires, winds,
floods, explosions, strikes, sabotage, msurrectlOns,
riots, acts of the public enemy, failures of
equipment, mabihtIes to obtam or ship materials or
eqmpment, acts of civll or military authonty
(including court orders, injunctions and orders of
government authorities prohibIting performance as
required by this Agreement or permIttmg such
performance only subject to unreasonable
conditions), and failures of governmental authorities
to timely act (mcludmg any failures to issue permits,
licenses or other required governmental
authorizations).
1.1.13 "Utility Group" means a group of Parties recognized
by the Committee as havmg unique, common and
simllar interests for purposes of nominating and
electmg one representative to serve on the
Committee. The Committee may from time to time
make changes in the number, nature or claSSIfication
of Utility Groups by action taken in accordance with
section 7. The Utility Groups on the date of this
Agreement are set forth in the attached b.
1.2 Cross-References to Additional Definitions.
Whenever used m this Agreement with mitialletters capitalized, the followmg
terms shall have their respective meanings specified elsewhere in this Agreement:
Term
Reference
First Party
Party
Participatmg Party
Section 8.5 ( c )
Introduction
Section 6
Section 2.
Performance of the Service
2.1
General
The Parties shall prOVIde for the performance of the Service by the Contractor for
the benefit of all Parties in theIr respective SerVIce Areas throughout the Term.
9
[~,~~kY Upton -' Master~Agreement 04 d~S,
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2.2
Authority of the Committee
The Committee shall have the power and authonty to do the following on behalf
of the Parties:
a) enter into, perform and admimster one or more contracts with
Contractor for the Contractor's performance of the Service, provided
that no such contract shall be for a period of Service in excess of three
(3) years;
b) mcur Common Costs;
c) adopt and amend policies, procedures, guIdelines, rules and
reqmrements for the Implementation of the Service and thIS
Agreement;
d) render interpretations, constructions and clarifications of this
Agreement;
e) estabhsh procedures for the determination, bIlling, payment and
collection of charges for use of the Service, any surcharge under
section 4.3 and any other amounts payable under this Agreement;
f) establish, and delegate any authonty of the CommIttee to, any
subcommittee of the Committee;
g) terminate the Term; and
h) take such other actIOn (includmg, but not limIted to, the execution,
acknowledgment and dehvery 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.
2.3 Contracts
Any contract WIth the Contractor or other Person entered mto by the CommIttee
for the Parties shall be executed in the name of "One-Call Operating Committee"
or a substantIally similar name and shall be signed by at least two (2) CommIttee
members authorized by the CommIttee to sign the apphcable contract.
2.4 Committee Policies, Etc.
Any policies, procedures, guidelines, rules, requirements, or amendments adopted
by the Committee pursuant to section 2.2 ( c ), any interpretations, constructIons,
or clanfications of thIS Agreement rendered by the Committee pursuant to sectIOn
2.2 ( d ) and any procedures established by the CommIttee pursuant to sectIon 2.2
( e) shall be consistent WIth the provisions of this Agreement and applicable law
and shall be bmdmg upon each Party. Further, each Party shall:
a) furnish, operate and mamtam telephone, telepnnter, facsimile and other
10
I Be~k}' ~_p_t?~: Master Agreement_04~doc
____~~_g~} .1__:
equipment required to interface such Party wIth the Service;
b) cooperate and coordmate with, and furnIsh mformatIon 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 faclhties;
and
d) pay before delinquency all charges and other amounts payable by it for use of
the ServIce when the validity of such charges or amounts have not been
appealed pursuant to sectIOn 6, or, If so appealed, when such charges or
amounts have been finally determined payable by the CommIttee.
2.5 Equal Opportunity Compliance
Each Party shall comply with Executive Order No. 11246, the RehabilitatIon Act
of 1973 and the Vietnam Era Veterans' Readjustment AssIstance Act of 1972 and
all of the orders, rules and regulations promulgated thereunder (including, but not
hmited 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 mcorporated herem by thIS reference.
Each Party certifies that segregated facilities (wIthin the meanmg of 41 C.F.R.
SectIOn 60-1.8) are not and WIll not permIt ItS employees to work at any locatIon
under its control where segregated facihtIes are mamtamed. Each Party shall
obtain a similar certificatIOn from other partIes as required by 41 C.F.R. SectIOn
60-1.8. This sectIon shall apply only if and to the extent required by apphcable
law.
Section 3.
The Committee
3.1
Composition
3.1.1
The Committee shall be composed of as many
members as there are Utility Groups, except that,
until the first regular electIon of Committee
members pursuant to section 3.3, the Committee
shall be composed of the CommIttee members hsted
in the attached ExhibIt D.
A Committee member may designate and, once
designate, replace an alternate by gIving written
notIce of such designatIon or replacement to the
3.1.2
,
l
11
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other CommIttee members. The alternate designated
by a Committee member may vote and otherwise
act in the place of such Committee member.
3.1. 3 The names, addresses and telephone numbers of the
Committee members on the date of thIS Agreement
are listed m the attached ExhibIt D.
3.2 Voting for Committee Members
The Parties included m each Utility Group shall be entitled to elect one
Committee member to represent the Utility Group on the Committee. In any such
election (i.e., pursuant to section 3.3 or 3.4 below), each Party shall be entitled to
cast one vote for each dollar paid by such Party pursuant to section 4 for such
Party's use of the Service dunng the prior Fiscal Year, excluding:
a) any interest, late payment charges, costs or other amounts paid by such
Party on account of any failure to pay any other amount when due; and
b) any amount paid after the due date for nommatIons specIfied pursuant
to section 3.3.2 or 3.4.2, as the case may be.
3.3 Regular Elections of Committee Members
3.3.1 Prior to each Annual Meeting, the CommIttee shall
conduct a regular election pursuant to thIS section
3.3 to elect successors for those CommIttee
members whose terms expIre at that Annual
Meetmg. Prior to the first Annual Meetmg, the
Committee shall conduct a regular electIon pursuant
to this section 3.3 to elect CommIttee members for
those Utility Members that do not have a
Committee Member on the date of thIS Agreement.
3.3.2 At least sixty (60) days prior to the first Annual
Meetmg and any Annual Meeting when the term of
any Committee member expires, the CommIttee
shall send to the PartIes mcluded m each UtIhty
Group represented by a CommIttee member to be
elected a written sohcItatIon of nommatIOns for the
Committee member to represent such UtIhty Group
for the followmg term. Such solicitatIon shall
specify the date determined by the CommIttee as the
due date by which nominations must be receIved by
the CommIttee. Any Party may nominate a
candidate for electIOn as the Utility Group's
Committee member by giving the CommIttee
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3.3.3
written notice of the nomination pnor to the due
date specified in the Committee's solicitation of
nommations or by any other means approved by the
Committee.
At least thirty (30) days prior to the first Annual
Meetmg and any Annual Meeting when the term of
any Committee member expires, the CommIttee
shall send to the Parties included in each UtIlity
Group represented by a Committee member to be
elected:
a) a wrItten ballot includmg all ofthe candidates nominated for such Committee
member's posItIon pursuant to sectIon 3.3.2;
b) a copy of any resume, statement or other matenals furnIshed by the
nommating Party or the candIdate regarding the quahfications of the
candidate, provided that the Committee may exclude any materials that it
deems to be inappropriate, unreasonable or too expensIve to copy and send;
c) a statement of the number of votes that each Party m the UtIhty Group IS
entitled to cast in the electIon; and
d) a statement of the date determined by the Committee as the due date by whIch
completed ballots must be receIVed by the Committee.
3.3.4 The candIdate receiving a majority of the votes cast
by Parties in the Utility Group shall be elected as
the Committee member for such Utility Group
effective as on the Annual Meetmg for which the
election is held. If no candidate receives a majority
of the votes cast, then the CommIttee shall conduct
a speCial election for the apphcable CommIttee
member position, but only those two (2) candIdates
receiving the most votes in the regular election
under this section 3.3 shall be candidates in the
speCial electIon.
3.4 Special Elections of Committee Members
3.4.1 The CommIttee shall conduct a specIal election
upon the occurrence of any of the followmg events:
a) in a regular electIOn under sectIon 3.3 or a special electIOn under this
section 3.4, no candIdate receives a majority of the votes cast by the
Parties III the applicable Utility Group;
b) a Utility Group does not have a representatIve on the Committee;
c) a CommIttee member's term terminates pursuant to section 3.5.4 (a) or
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(b); or
d) Parties entitled to cast twenty-five percent (25%) or more of the votes
entitled to be cast by all of the PartIes included m a Utility Group SIgn
and deliver to the Committee a wntten request for a special elechon to
remove their existmg Committee member and elect a successor.
3.4.2 Promptly after the occurrence of any event
described in sechon 3.4.1 (b) or (c), the CommIttee
shall send to the PartIes mcluded in the Uhhty
Group represented by the CommIttee member m
queshon a wntten solicitahon of nominations for
the CommIttee member to represent such Utility
Group for the balance of such Committee member's
remaimng term. Such solicitation shall specify the
date determmed by the Committee as the due date
by whIch nommatlOns must be received by the
Committee. Any Party may nommate a candidate
for election as the Uhhty Group's Committee
member by giving the Committee written notice of
the nominahon pnor to the due date specIfied m the
CommIttee's solicitahon of nom mat ions or by any
other means approved by the Committee.
3.4.3 At least thIrty (30) days prior to the due date
specIfied pursuant to (d) below, the Committee shall
send to the Parties included in the applicable Utility
Group:
a) a written ballot including all of the candidates nominated for the
Committee member position pursuant to section 3.4.2 or, in the case of
a special electlOn under section 3.4.1 (a), the two (2) candidates
receiving the most votes in the prior regular or special election, as
applicable;
b) a copy of any resume, statement or other materials furnished by the
nommatmg Party or the candIdate regardmg the quahfications of the
candidate, provided that the CommIttee may exclude any materials that
it deems to be inappropnate, unreasonable or too expenSIve to copy
and send;
c) a statement of the number of votes that each Party m the Uhhty Group
IS entitled to cast m the election; and
d) a statement of the date determined by the CommIttee as the due date by
whIch completed ballots must be receIved by the Committee.
3.4.4 The candidate receIving a majority of the votes cast
by Parties in the Utility Group shall be elected as
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the CommIttee member for such UtIhty Group
effective as of the date when the Committee notIfies
the applicable UtIhty Group of the results of the
election. If no candIdate receIves a majority of the
votes cast, then the Committee shall conduct
another special electIOn for the apphcable
CommIttee member posItIon, but only those two (2)
candIdates receiving the most votes in the prior
special election under this section 3.4 shall be
candidates in the special election.
3.5 Term of Committee Members
3.5.1 The term of any CommIttee member elected
pursuant to section 3.3 or 3.4 shall commence on
the effective date of his or her election.
3.5.2 Subject to extensIOn as provided for in sectIOn 3.5.3
and to earlier termination pursuant to section 3.5.4:
a) the term of each CommIttee member hsted m the attached ExhIbIt D
shall expire on the date of the Annual Meetmg m the year specified m
the attached ExhIbIt D;
b) the term of each Committee member elected pursuant to sectIOn 3.3
that commences prior to the 1994 Annual Meeting shall expire on the
date of the Annual Meeting in the year specified in the attached
Exhibit C;
c) the term of each Committee member elected pursuant to section 3.3
that commences as of or after the 1994 Annual Meeting shall expire at
the thIrd Annual Meeting after the commencement of his or her term;
and
d) the term of each CommIttee member elected pursuant to section 3.4
(excludmg any special electIon under section 3.4.1 (a) ansmg out of a
regular electIOn) shall expIre upon the expIration of the remammg
balance ofthe term of any such Committee member's predecessor.
3.5.3 In the event a special electIOn IS conducted pursuant
to sectIon 3.3.4 to elect a successor for a Committee
member whose term would otherWIse expIre under
section 3.5 .2, the term of such CommIttee member
shall be extended pending completIon of the special
election and shall expire on the commencement date
of the term of his or her successor.
3.5.4 The term of any CommIttee member shall terminate
prior to the expiratIon of his or her term pursuant to
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section 3.5.2 upon the occurrence of any of the
followmg events:
a) the death of the Committee member;
b) the Committee member resigns by gIving the Committee wntten notice
of such resIgnation; or
c) a successor IS elected pursuant to a request under section 3.4.1 (e).
3.6 Committee Meetings
3.6.1 The Committee shall have regular meetings as
determmed by the CommIttee, but not less than
once m each calendar quarter. The CommIttee shall
gIve all Parties reasonable advance wntten notIce of
the time and place of ItS regular meetings (e.g., by
publication of the schedule for regular meetings m a
newsletter or other matenals dIstributed to all
Parties).
3.6.2 The Committee shall have special meetings as
determined by the Committee. Further, any two (2)
or more CommIttee members may call a speCial
meeting of the CommIttee by giving all other
CommIttee members notice thereof at least five (5)
business days m advance of the meetmg. The
CommIttee shall use reasonable efforts to give all
Parties reasonable advance notice of any special
meetmgs of the Committee whenever practicable in
the circumstances, takmg into account the time
permitted, costs of the notice, the agenda of the
meeting and other pertment factors.
3.6.3 All meetings of the CommIttee shall be held at the
One-Call Office or at such other place as may be
determmed by the Committee. Presence at a
meetmg by the CommIttee member or such
member's desIgnated alternate shall constitute a
waiver by that Committee member of notice of the
meetmg and any objection to the place of the
meeting.
3.6.4 Minutes shall be kept of each Committee meeting
and prOVIded to all Committee members. Each Party
shall have access to the minutes of any Committee
meeting and the nght to examme and copy the same
at its own expense during normal bus mess hours at
the One-Call Office upon reasonable advance notice
to the Committee.
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3.6.5 Any Party may attend and observe any CommIttee
meeting.
3.7 Manner of Acting by the Committee
3.7.1 The Committee may act by adoptIon pursuant to
vote taken at a meetIng of the Committee In
accordance wIth paragraph 3.7.2 or by written
Instrument signed by all of the CommIttee
members.
3.7.2 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 ofa maJonty 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 two-thuds of the total number of
Committee members for adoption:
a) any change in the Fiscal Period;
b) any change In the locatIOn of the One-Call Office
c) termination of the Term pursuant to section 2.2 (g);
d) any change In the number, nature or classIfication of Utihty Groups under
section 1.1.13;
e) any change in the charges for use of the Service pursuant to sectIon 4.1;
f) the authOrIZatIOn or 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);
g) the ImposItIon of any surcharge pursuant to subsection 4.3 (b);
h) the termination of any Party's partIcipatIon in the Service pursuant to section
5.2.2;
I) the selectIon of the Contractor, the terms of any contract between the
Contractor or any other Person and the Committee and any extension or
amendment of any such contract;
j) 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;
k) the establishment, and delegatIOn of any authOrIty of the Committee to, any
subcommIttee of the Committee;
1) the adoptIOn or amendment of any pohcy, procedure, guideline, rule or
requirement pursuant to section 2.2 ( c );
m) the renderIng of any Interpretation, constructIon or clarificatIon of this
Agreement pursuant to section 2.2 (d);
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n) the estabhshment of procedures for the determinatIOn, btlhng, payment and
collection of charges for use of the Service, any surcharge under section 4.3
and other amounts payable under thIS Agreement pursuant to section 2.2 (e);
0) the establishment of any sinking funds or reserves (other than reasonable
reserves for working capital in the ordmary course of performing the Service)
for contingencies and other purposes in connection with performance of the
Service; and
p) any amendment of this Agreement pursuant to section 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 nondiscnmmatory. 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 rate schedules
attached as ExhibIt E. Such charges are presently assessed only against the
Parties; however, the Committee may, in ItS dlscrebon, assess charges for
use of the Service by others. Subject to the procedures outlined in sectIOn
7, the CommIttee may at any time change the charges effective for the
Service provided during any Fiscal Penod.
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 pnor to
the commencement of each FIscal Period, the Committee shall approve a
budget of the estimated Common Costs to be mcurred to provide the
Service dunng such FIscal Period. Attached as ExhibIt F IS the budget of
esbmated Common Costs to be incurred to prOVIde the ServIce during the
FIscal Penod commencing on August 1, 2001, as approved by the
CommIttee. For each Fiscal Period, the Committee shall endeavor to
estabhsh charges designed to produce revenues sufficient to pay all of the
Common Costs for such Fiscal Period.
4.3 Common Costs in Excess of Revenues
If, at the close of any FIscal Period, the Common Costs exceed the
revenues received from charges for the PartIes' use of the ServIce, the
Committee may:
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a) pay the excess dunng the next or succeeding Fiscal Period (e.g., through
charges for use of the Service in such later Fiscal Penods);
b) impose and collect from each Party a one-time surcharge equal to the total
excess amount multiplied by a fraction, the numerator of whICh is the total
charges properly payable by such Party for use of the Service during the
relevant Fiscal Period and the denominator of which is the total charges
properly payable by all Parties for use of the Service during the same Fiscal
Penod; or
c) pay the excess out of any outstanding reserves or excess revenues from pnor
FIscal Penods.
Any surcharge under (b) above shall not constItute or be deemed to
constitute a change in the charges under section 4.1 and shall not be
subject to the procedures set forth in sectIon 7. Each Party shall pay such
surcharge withIn SIXty (60) days after the date of the InVOICe therefor or
such larger penod of tIme as may be specIfied by the Committee.
4.4 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, checks, bIlls and cash which
may from time to time be received on account of the ServIce shall be
deposited Immediately in such account or accounts In the same form in
which they are received.
4.5 Book and Records of Common Costs
The CommIttee shall provide for a complete and accurate set of books and
records of the Common Costs. Such books and records shall be kept In
accordance WIth generally accepted accounting practIces apphed In a
consistent marmer, correctly reflecting all transactions InvolVIng Common
Costs. Unless otherwIse dIrected by the Committee, such books and
records shall be maintamed on the cash baSIS. Such books and records
shall be kept at the One-Call Office or such other location as may be
specIfied by the CommIttee. Each Party shall have access to such books
and records and the nght to examine, copy and audit the same at its own
expense during normal business hours upon reasonable advance notice to
the Committee. The CommIttee shall cause such books and records to be
audIted not less frequently than armually by an mdependent certIfied
public accountant selected by the CommIttee. The CommIttee shall
provIde each Party with certified finanCIal statements for each Fiscal
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Penod (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 Penod.
4.6 Other Committee Records
All other records of the CommIttee relatmg to this Agreement (mcludmg,
but not hmIted to, COpleS of all wntten contracts WIth the Contractor or any
other Person entered mto by the CommIttee) shall be kept at the One-Call
Office or such other locatIon as may be speCIfied by the CommIttee. Each
Party shall have access to such records and the right to examme, copy, and
audit the same at its own expense during normal business hours upon
reasonable advance notIce to the CommIttee.
Section 5.
The Parties
5.1
Additional Parties
Any person that owns or operates subsurface utIhty facIlItIes (mcludmg,
but not necessanly limited to, any electric, gas, telephone, water, cable
television or commumcatlOns dIstrIbutions system) within the Service
Area may 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
Subscnption Agreement tendered for acceptance.
5.2 Termination of Participation
5.2.1 Voluntary Withdrawal
Any party may WIthdraw as a Party:
a) effective upon the expiration of not less than one hundred twenty (120) days
after such Party gives the Committee written notice of such withdrawal;
b) effective as of the effective date of any increase in the charges payable by such
Party for use of the Service made by the CommIttee pursuant to section 4.1
(e.g., excludmg any mcrease or surcharge pursuant to section 4.3), provided
that such Party gIves the Committee wntten notice of the WIthdrawal at least
forty-five (45) days pnor to the effective date of the increase; or
c) effective as of the effective date of any amendment of this Agreement made by
the Committee pursuant to section 9.4, prOVIded that such Party gIves the
Committee wntten notice of such WIthdrawal pnor to the expIration of thirty
(30) days after the effective date of the amendment.
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No wIthdrawal pursuant to thIS section shall relieve or
release any Party from any of ItS obligatIons wIth respect to
charges accrued, Common Costs mcurred or any other
liability accrued or mcurred pnor to the effective date of
such wIthdrawal.
5.2.2 Other Termination
In the event of any material breach of or default under thIS Agreement
(mcluding, without limitation, any refusal or failure to pay when due any
charges for use of the ServIce, any surcharge under section 4.3 or any other
amount payable under this Agreement) by any Party, the Committee may
terminate such Party's partIcipation in the Service and rights under this
Agreement as follows:
a) A Notice of Termination shall be sent to the Party by first-class mall, postage
prepaid, and shall include (i) a statement outhnmg the reason(s) for such
termmatIon, (ii) the effective date of such termination, (iil) the actIon the Party
must take to cure the stated breach or default, and (iv) notIce of the Party's
nght to have the CommIttee revIew the Notice of Termination pursuant to
section 6.
b) The actual termination of a Party's partIcIpatIon m the SerVIce shall take
place, if at all, not less than thIrty (30) days after the Notice of Termination IS
placed m the mail addressed to such Party and only If the breach or default IS
not cured pnor to the expIratIon of such thIrty (30) day period.
c) The CommIttee shall not be reqUired to gIve the Party any warning or notIce of
the ordered termmatIOn other than the Notice of Termination.
d) If the Party disputes any termination under this sectIOn 5.2.2, the Party may
submit the dIspute for review and resolutIOn under sectIOn 6 by giving the
Committee written notIce thereof pnor to the tIme and date termmation is
scheduled to occur, as specified in the Notice of Term matI on. If the Party
tImely disputes the termmatIOn, actual termmatIon will be stayed pending
completion of the procedures under section 6.
TerminatIOn pursuant to this sectIon shall not reheve or release any Party
from any of its obligations with respect to charges accrued, Common
Costs mcurred or any other habIhty accrued or incurred prior to the
effective date of such termmation.
5.3 Utility Group Assignment
Each Party shall select and be assIgned to one (1) Utihty Group at the time
of submIttal and acceptance of its Subscription Agreement. ExhIbIt A hsts
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the Parties on the date of this Agreement by Uttlity Group. Parties eligIble
to participate in multiple UtilIty Groups may be assigned to only one (1)
UtllIty Group at any time. Such Parties may change their UtilIty Group
assIgnment by givIng written notlce to the CommIttee; provided that such
change shall be effective as of the next Annual Meeting fallIng at least
forty-five (45) days after the CommIttee's receipt ofthe Party's written
notice.
5.4 Annual Meeting
An annual meeting of the Parties shall be held on the third Friday In
September of each year at 9:00 a.m. at the One-Call Office (or on such
other date and at such other time or place as the Committee may dIrect) for
the purpose of electIng Committee members and transacting such other
business as may properly come before the meeting.
Section 6.
Dispute Resolution and Committee Review
6.1
Procedure for Dispute Resolution
Except as otherwise provided in section 6.2, any controversy or dispute
between the PartIes, or anyone or more of them, or between a Party and
the Contractor ansing under this Agreement and any request for
CommIttee revIew of an Issue or dispute that IS speCIfically authonzed
under any prOVISIOn of thIS Agreement or document adopted pursuant to
thIS Agreement shall be heard and resolved by the Committee as follows:
a) A Party seeking Committee review shall send a written Notice of Request for
CommIttee Review to the Committee and to each Party Involved in the issue,
controversy or dispute (a "ParticIpatIng Party"). Unless a shorter period of
time is specified elsewhere III thIS Agreement or in any document adopted
pursuant to thIS Agreement, such notice must be received by the Committee
WIthIn mnety (90) days after the occurrence of the event(s) gIving nse to the
Issue, controversy or dIspute in question.
b) The Notice of Request for CommIttee ReVIew shall set forth in reasonable
detail (i) the reason(s) for the request, (iI) the identlty of each PartiCIpatIng
Party, and (in) any demand for a formal hearing before the Committee.
c) Within fifteen (15) days after the Notlce of Request for Committee Review is
sent, each PartICIpating Party (IncludIng the Party who initiated the review
process) shall set forth in writing a statement of its posItlon and submit such
statement to the CommIttee and to each of the other PartICIpatIng PartIes, If
any.
d) WIthin fIfteen (15) days after receIpt of a PartICIpatIng Party's statement of
22
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:~~C~t':lpton - Master Agreement_04.doc
posItlon, any other Participatmg Party may submit to the CommIttee and to
each other Partlcipatmg Party a wntten response to that statement.
e) If demanded by the requesting Party m its N otlce of Request for Committee
Review, demanded by any other ParticIpatmg Party in Its positlon statement,
or on the Committee's own Imtiative, a hearing will be held withm thIrty (30)
days after the end ofthe fifteen (15) day response penod set forth m section
(d) above. In that event, the Committee shall send a Notlce of Heanng to each
PartIcipating Party at least fifteen (15) days pnor to the date of the scheduled
heanng.
f) At the hearing before the CommIttee, If any, each PartIcipatmg Party shall be
entitled to (i) present all relevant evidence, (Ii) questlon any witness called by
the Committee or any other Participatmg Party, (iii) give an oral statement of
its position, and (IV) require the attendance of the Contractor or any other
Party having relevant evidence.
g) WIthm fifteen (15) days after the end of the thirty (30) day period specIfied in
section (e) above (whether or not a hearing is actually held), the CommIttee
shall issue to each of the Participatmg PartIes a written decIsion setting forth
m reasonable detail its reasons and bases for the determination.
The written decision of the Committee shall be fmal and bindmg on the
Parties. The failure of any Party to comply wIth the CommIttee's wntten
decIsion may result in the action specIfied by the Committee (e.g.,
termination, suspensIOn, etc.), if any, being taken on the date specified wIthout
further notlce to the noncomplymg Party. Under no CIrcumstances shall a
Party be entltled to seek CommIttee revIew of any issue, controversy or
dispute more than once wIthout the CommIttee's pnor written consent.
6.2 Exception
Sectlon 6.1 shall not apply to any dIspute or controversy ansing under section 8.5.
Section 7.
Administrative Procedures
7.1
Application
The procedures outhned m sectIOn 7.2 shall apply only to proposals by the
CommIttee to adopt:
a) changes m the charges for use of the ServIce or any rate schedule related
thereto pursuant to sectlon 4.1;
b) changes in the number, nature or classification of Utility Groups;
c) amendments to thIS Agreement pursuant to sectIOn 9.4; and
d) such other proposals as the CommIttee may determine to make subject to the
procedures outlmed m sectIOn 7.2.
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7.2 Procedures
Committee proposals to whIch this section apphes shall not be fmally
adopted by the Committee except as follows:
a) The Committee shall send a written Notlce of Proposal to each Party, which
shall (1) describe the proposal in reasonable detail, (ii) notify the Party of Its
right to submIt wntten comments on the proposal for a period of at least thirty
(30) days from the date of the Notice of Proposal, (iii) notlfy the Party of ItS
right to request a heanng on the proposal before the CommIttee, and (IV)
notlfy the Party that the proposal will be adopted and take effect, If at all,
ninety (90) days from the date of the Notice of Proposal.
b) Each Party shall have the right to submit written comments on the CommIttee
proposal within thirty (30) days after the date of the Notice of Proposal.
c) If requested by a Party in Its written comments submitted pursuant to sectlon
(b) or on the CommIttee's own imtlatlve, a hearing on the proposal will be
held not earlier than forty (40) and not later than SIXty (60) days after the date
of the Notlce of Proposal. In that event, the CommIttee shall send each Party a
wntten Notice of Hearing not later than fifteen (15) days pnor to the date
scheduled for such heanng.
d) At the heanng on the proposal before the CommIttee, If any, each Party shall
be entitled to submit all relevant evidence and make an oral statement of ItS
posItion on the proposal.
e) The Committee may take final action on a proposal at any tlme after the end of
the thIrty (30) day comment penod or, if a hearing is held, after the close of
the hearing. The CommIttee shall notify each Party of any final actIOn wIthm
one hundred twenty (120) days after the date of the Notlce of Proposal.
ActIOn taken on a proposal by the Committee pursuant to sectlon (e) above
shall be fmal and bmdmg on the PartIes and, unless otherwise specified by the
Committee, shall take effect ninety (90) days after the date of the Notice of
Proposal. Any action taken by the Committee pursuant to and in accordance
with this section 7 shall not be subject to review under sectIOn 6.
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 obligatlon or liabIhty upon any Party. Except as
specifically provided in section 2.2, this Agreement does no authorize any
Party to: act as an agent or other representative of any other Party, enter
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into any contract in the name or on behalf of any other Party, or incur any
obligation or hability of any other Party.
8.2 The Contractor
The Contractor shall be and act as an independent contractor m 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
hmltmg the generality of the foregomg, 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 dedicatmg of facIlItIes owned or operated by any Party (or
any portion thereof) to the pubhc or to any other Party.
8.5 Several Obligations
The obhgatIOns 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, liabIhties, acts or omissions of any other
Party. WIthout hmitmg the generahty of the foregomg:
a) No Party shall be responsible for the charges and other 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 m an mcrease in the charges
established by the Committee under sectIon 4.1 or the excess Common Costs
allocated under section 4.3).
b) Each Party shall be solely responsIble for its response to any request, received
by such Party through the ServIce, for location of such Party' subsurface
utility facilities.
25
"'~~~ ,~~~ ~> -"',~ ',0"<<'
Be~y_~pton - Master Agreemeo~t_O~:doc ,~
~ag~,~~6 I
c) To the fullest extent permitted by applicable law, each Party ("FIrSt Party")
shall defend, mdemnify 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, m the case of any actual or alleged duty to act, faIlure to act by the FIrst
Party in connectIon with the Service (includmg, but not hmited 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 foregomg shall not reqUIre the First Party to defend,
mdemnify or hold harmless any Person from any claim, loss, harm, lIability,
damage, cost or expense to the extend caused by any actual negligence, act or,
m the case of a duty to act, faIlure to act by such Person. Without hmlting the
generalIty of the foregoing, the oblIgatIOns of the First Party under thIS sectIon
shall apply to any claim of an employee or former employee of the First Party
against any other Party. In connectIon wIth any actIon to enforce the
provisions of thIS sectIon, the FIrst Party expressly waives any defense,
Immunity or limitation (e.g., 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, worker's compensatIon, disabIlity
benefit or similar statute, regulation, rule or order of any governmental
authority having junsdlctIOn (includmg, but not lImIted to, the Washmgton
IndustrIal Insurance Act, Title 51 of the ReVIsed Code of Washington).
Although the foregoing waIver may apply to a claIm of an employee or former
employee of the First Party agamst any other Party, it shall not be mterpreted
or construed to apply to any claim of any employee or former employee
against hIS or her own employer or former employer.
8.6 Tax Exempt Status
The Parties intend that any organizatIOn created or evidenced by thIS
Agreement shall constitute an organIzation exempt from federal mcome
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 (mcludmg, but not
limited to, the preparahon, filing and prosecution of an apphcation of
recogmhon of exemptIOn 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
26
r::--- -~> - -,- ,-,,---
I Becky Upto~_- Master Agreement....~ doq _
_ E>~Qe27l
9.1 Excused Performance
No Party shall be considered to be m 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 Uncontrollable 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
9.2.1 Directed to a Party
Any notIce, request, designation, duection, statement or
other commulllcatIon directed to a Party under thIS
Agreement shall be in wnting 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 section
by giving the CommIttee notice of such change m
accordance with section 9.2.2.
9.2.2 Directed to the Committee
Any notice, request, designatIon, direction, statement or
other commulllcation dIrected to the Committee under thIS
Agreement shall be in writing and shall be delivered m
person or mailed, properly addressed and stamped wIth the
reqUIred postage, to the attentIOn of the "Operatmg
Committee ChaIr" at the One-Call Office. The CommIttee
may change ItS address for communicatIOns under this
sectIon by gIvmg the PartIes notIce of such change m
accordance wIth sectIOn 9.2.1.
9.3 Entire Agreement
This Agreement sets forth the entire agreement among the Parties and
supersedes any and all pnor agreements WIth regard to the Service.
27
I Becky Upton ::'Masf~T Agreeffie~nt 'q4:..d~c~~~::u"~,~~':::u::~.,,,
Page 28 I
9.4 Amendment
This Agreement may be amended from time to time, in whole or in part,
by the Committee in accordance wIth the procedures set forth in section 7.
9.5 Implementation
Each Party shall take reasonable action (includIng, but not hmited to, the
execution, acknowledgment and delivery of documents) as may be
requested by the CommIttee for the implementation or continuing
performance of this Agreement.
9.6 Nonwaiver
The faIlure of any Party to InSISt upon or enforce strict performance of any
provIsion of this Agreement or to exerCIse any nght or remedy under thIS
Agreement shall not be construed as a waiver or relinqUIshment to any
extent of its nght 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 invahdIty 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 invahd or unenforceable prOVIsions
were omItted.
9.8 Headings
The headings of sections subsections and section 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 sections.
9.9 Governing Law
This Agreement shall be Interpreted, construed and enforced in all respects
in accordance with the laws of the State of Washington.
28
)
l_ Becky Upton - Master Agreeme!1L64~oc"-~--
Page 29_1
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 ansmg under or by virtue of
this Agreement, other than in the courts of the State of Washmgton or the
Dlstnct Court of the Umted States, Western District, State ofWashmgton.
Each Party hereby Irrevocably consents to the junsdlCtIon of the courts of
the State of Washington wIth venue laId m Kmg County and of the DIStrict
Court of the Umted States, Western Division, State ofWashmgton.
9.11 Successors and Assigns
ThIS Agreement shall be fully binding upon, mure 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, operation of
law or otherwise) shall release or relieve any Party of any of ItS obligations
or liabilities under thIS Agreement.
9.12 Disposition of Assets at the End of the Term
Any and all funds or other assets m the control of the Committee at the
end ofthe Term shall be apphed:
a) first, to the payment of Common Costs;
b) second, to the estabhshment of such reserves, the purchase of such insurance
and the makmg of such other provlslOns as the Committee may specify for the
protection agamst obhgatIons, liabihties 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 statute,
regulation, rule or order of similar import.
9.13 Effective Date
ThIS Amended and Restated Master Agreement for the Northwest One-Call
Subsurface Warning System shall be effective as of January 1, 2002.
29
5, )~7
~ ,.~
CITY OF PORT ANGELES
;O~~
f/8LIC WO~~
321 EAST FIFTH ST, PO BOX 1150 PORT ANGELES, WASHINGTON 98362
PHONE (206) 457-0411
April 12, 1993
Utilities Underground Location Center
12951 Bel-Red Road
Bellevue, W A 98005
Attn: Tom Odegaard
Re: Amended and Restated Master Agreement for the Northwest one-call subsurface warning
system
Dear Tom:
Enclosed is one copy of the above referenced ~greement as approved by the City Council and
signed by the Mayor on April 6, 1993.
Sincerely,
Jack N. Pittis
Director of Public Works
KDR:cah
cc: City Clerk
Light Dept.
ullls
___r' JI
\,.... ~
AMENDED AND RESTATED
MASTER AGREEMENT
for
The
NORTHWEST ONE-CALL
SUBSURFACE WARNING SYSTEM
original Date of Master Agreement: April 1, 1986
Amended and Restated as of April 1, 1993
112282-0001/BA923380.0481
3/19/93
CONTENTS
section 1. Definitions.................................. 2
1.1 Specified Definitions........................ 2
1.2 Cross-References to Additional
Def ini tions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
section 2. Performance of the Service................... 5
2. 1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Authority of the Committee................... 5
2 . 3 Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Committee Policies, Etc. ..................... 6
2.5 Equal Opportunity Compliance................. 7
section 3. The Committee................................. 7
3. 1 Composition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Voting for Committee Members................. 8
3.3 Regular Elections of Committee Members....... 8
3.4 special Elections of Committee Members....... 9
3.5 Term of Committee Members.................... 11
3.6 Committee Meetings........................... 12
3.7 Manner of Acting by the Committee............ 12
section 4. Payment and Allocation of Common Costs....... 14
4.1 Establishment of Charges..................... 14
4.2 Charges Based on Common Costs................ 14
4.3 Common Costs in Excess of Revenues........... 15
4.4 Bank Accounts... . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15
4.5 Books and Records of Common Costs............ 15
4.6 Other Committee Records...................... 16
MASTER AGREEMENT
[12282-0001/BA923380.0481
PAGEi
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-.
Section 5. The Parties.................................. 16
5.1 Additional Parties........................... 16
5.2 Termination of Participation................. 16
5.2.1
Voluntary withdrawal................. 16
5.2.2
other Termination.................... 17
5.3 Utility Group Assignment..................... 18
5.4 Annual Meeting............................... 18
Section 6. Dispute Resolution and Committee Review...... 18
6.1 Procedure for Dispute Resolution............. 18
6.2 Exception.................................... 20
section 7. Administrative Procedures.................... 20
7 . 1 App 1 i ca t i on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
7 . 2 Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
Section 8. Relationship of the Parties.................. 21
8.1 No Partnership............................... 21
8.2 The Contractor............................... 21
8.3 No Third Party Beneficiaries................. 22
8.4 No Dedication of Facilities.................. 22
8.5 Several Obligatiqns.......................... 22
8.6 Tax Exempt Status............................ 23
Section 9. Miscellaneous................................ 23
9.1 Excused Performance.......................... 23
9.2 Communications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
9.2.1
Directed to a Party.................. 24
9.2.2
Directed to the Committee............ 24
9.3 Entire Agreement............................. 24
MASTER AGREEMENT
(12282-0001/BA923380.0481
PAGE ii
3/19/93
9.4
9.5
9.6
9.7
9.8
9.9
9.10
9.11
9.12
9.13
Amendment. . .
Implementation.
Nonwaiver. . . .
Severability.
Headings. . . . . .
Governing
Law. . . . . . . . . .
24
24
25
25
25
25
Forum Selection.............................. 25
Successors
and
Disposition of
Term. . . . . . . . . .
Assigns. .
Assets
at
the
25
End
of
the
26
Ef f ect i ve Date............................... 26
MASTER AGREEMENT
[12282-0001/BA923380.0481
PAGE III
3/19/93
~
- !
.
I
Amended and Restated
Master Agreement
for The
Northwest
One-Call Subsurface warning system
This Agreement, dated as of April 1, 1993, amends and
restates in its entirety the Master Agreement for the
Northwest One-Call Subsurface Warning System, dated as of
August 1, 1986. 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,
sewer, 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 facilities, the Parties have established a one-call
location service by which anyone who intends to dig, excavate,
drill, blast or perform other work that might disturb the
surface or subsurface of the earth where subsurface utility
facilities are located may call a single telephone number to
notify the Parties that may be affected by the proposed work
and seek such Parties' assistance in locating their respective
subsurface utility facilities.
D. The Parties desire to develop formal procedures for
the creation of a committee to administer this Agreement and
the contract between the committee and a third-party
contractor who shall perform the one-call location service for
the benefit of the Parties.
Agreement
The Parties therefore agree as follows:
MASTER AGREEMENT
11 2282-0001/BA923380.0481
PAGE 1
3/19/93
..,
I
Section 1.
Definitions
1.1
specified Definitions
Whenever used in this Agreement with initial letters
capitalized, the following terms shall have the following
s~ecified meanings, unless the context clearly requires a
different meaning:
1.1.1 "Annual Meeting" means an annual meeting of
the Parties pursuant to section 5.4.
1.1.2 "Committee" means the committee described in
section 3.
1.1.3 "Common Costs" means those costs reasonably
incurred by the Parties or anyone or more of them in
donnection with the Service, but only if and to the extent
~hat such costs are included in a budget or otherwise
a1uthorized or approved by the Committee as "Common Costs"
Jnder this Agreement. Common Costs may include, but are not
tiecessarily limited to, the following:
(a) payroll and related personnel costs to perform
the Service (including: salaries; wages; costs of 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
section 4.5);
(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 ot receipts of
any Party) ;
MASTER AGREEMENT
I
If 2282-0001/BA923380.0481
PAGE 2
3/19/93
(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 anyone 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-section 8.5(c).
1.1.4 "Contractor" means the Person engaged from
time to time by the Committee pursuant to section 2.2(a) to
perform the Service. The Contractor on the date of this
Agreement is Asplundh Tree Expert Company.
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.
1.1.8 "Service" means a one-call location service
by which a Person who intends to dig, excavate, drill, blast
or perform other work that might disturb the surface or
subsurface of the earth where the subsurface utility
facilities of one or more of the Parties may be located may
call a single telephone number to notify the Parties that may
be affected by the proposed work and seek such Parties'
assistance in locating their respective subsurface utility
facilities (e.g. by marking the surface above where the
subsurface facilities are located). The Service includes, but
is not necessarily limited to, the following:
(a) the
from a Person
perform other
earth;
Contractor's receipt of a telephone call
intending to dig, excavate, drill, blast or
work that might disturb the surface of the
MASTER AGREEMENT
112282-0001/BA923380.048J
PAGE 3
3/19/93
(b) the Contractor's determining the location of
the intended work (e.g., as being within or near the
service Area of any Party or Parties); and
(c) the Contractor's notifying such Party or
Parties of the location of the intended work;
all so that the Person intending to perform such work may seek
the Parties' assistance in locating its subsurface utility
fJcilities (e.g., by marking the surface above where the
sJbsurface facilities are located).
I 1.1.9 "service Area" means the geographical area to
wfuich the service applies. The Service Area of a Party
i~cludes all areas in which such Party's subsurface utility
f~cilities are located, as identified by such Party to the
C~ntractor (e.g., in regularly updated maps showing the
b~undaries of the area in which a Party's subsurface utility
f~cilities are located).
I 1.1.10 "subscription Agreement" means the document,
i~ such form and content as may be prescribed from time to
time by the Committee, by which a Person becomes a "Party"
uhder this Agreement. The form of subscription Agreement
prescribed by the Committee on the date of this Agreement is
I . .
attached as Exh1b1t B.
I 1.1.11 "Term" means the period commencing with the
date of this Agreement and ending upon the first of the
fbllowing to occur:
(a) July 31, 2004;
(b) the date upon which the last of the Parties
withdraws as a Party pursuant to section 5.2.1; or
(c) the effective date of any termination of this
Agreement by the Committee pursuant to sections 2.2(g)
and 3. 7 . 2 ( c) .
1.1.12 "uncontrollable Forces" means any cause or
cpndition beyond the control of any Party delaying or failing
tp perform its obligations under this Agreement, which cause
or condition such Party is unable to overcome or have
~revented by the exercise of reasonable diligence.
Ulncontrollable Forces may include, but are not necessarily
limited to, acts of God, acts of the elements, fires, winds,
fllOOdS, explosions, strikes, sabotage, insurrections, riots,
acts of the public enemy, failures of equipment, inabilities
~o obtain or ship materials or equipment, acts of civil or
~ilitary authority (including court orders, injunctions and
drders of government authorities prohibiting performance as
MASTER AGREEMENT
I
112282-0001/BA923380.0481
I
PAGE 4
3/19/93
~
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) .
1.1.13 "utility Group" means a group of Parties
recognized by the Committee as having unique, common and
similar interests for purposes of nominating and electing one
representative to serve on the Committee. The Committee may
from time to time make changes in the number, nature or
classification of utility Groups by action taken in accordance
with section 7. The utility Groups on the date of this
Agreement are set forth in the attached Exhibit C.
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
Party
Participating Party
-Section 8.5(c)
Introduction
Section 6
Section 2.
Performance of the Service
2.1
General
The Parties shall provide for the performance of the
Service by the Contractor for the benefit of all Parties in
their respective Service Areas throughout the Term.
2.2 Authority of the Committee
The Committee shall have the power and authority to do
the following on behalf of the Parties:
(a) enter into, perform and administer one or more
contracts with the Contractor for the Contractor's
performance of the Service, provided that no such
contract shall be for a period of Service in excess of
three (3) years;
(b) incur Common Costs;
(c) adopt and amend policies, procedures,
guidelines, rules and requirements for the implementation
of the Service and this Agreement;
MASTER AGREEMENT
112282-0001/BA923380 0481
PAGE 5
3/19/93
, .
(d) render interpretations, constructions and
clarifications of this Agreement;
(e) establish procedures for the determination,
billing, payment and collection of charges for use of the
Service, any surcharge under section 4.3 and any other
amounts payable under this Agreement;
(f) establish, and delegate any authority of the
Committee to, any subcommittee of the Committee;
(g) terminate the Term; and
(h) take such other action (including, but not
limited to, the execution, acknowledgment 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.
2.3 Contracts
Any contract with the Contractor or other Person entered
~nto by the Committee for the Parties shall be executed in the
tiame of "One-Call operating Committee" or a substantially
~imilar name and shall be signed by at least two (2) Committee
~embers authorized by the Committee to sign the applicable
dontract.
2.4 Committee policies, Etc.
Any policies, procedures, guidelines, rules,
uequirements, or amendments adopted by the Committee pursuant
I. . . .
tio sectlon 2.2(c), any lnterpretatlons, constructlons, or
dlarifications of this Agreement rendered by the Committee
~ursuant to section 2.2(d) and any procedures established by
tlhe committee pursuant to section 2.2(e) shall be consistent
Jith the provisions of this Agreement and applicable law and
~hall be binding upon each Party. Further, 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
MASTER AGREEMENT
t 2282-0001/BA923380.0481
PAGE 6
3/19/93
,
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 when the
validity of such charges or amounts have not been
appealed pursuant to section 6 or, if so appealed, when
such charges or amounts have been finally determined
payable by the Committee.
2.5 Equal opportunity compliance
Each Party shall comply with Executive Order No. 11246,
the Rehabilitation Act of 1973 and the Vietnam Era Veterans'
Readjustment Assistance Act of 1972 and all of the orders,
rules and regulations 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 shall obtain a similar
certification from other parties as required by 41 C.F.R.
Section 60-1.8. This section shall apply only if and to the
extent required by applicable law.
section 3.
The Committee
3.1
Composition
3.1.1 The Committee shall be composed of as many
members as there are utility Groups, except that, until the
first regular election of Committee members pursuant to
section 3.3, the Committee shall be composed of the Committee
members listed in the attached Exhibit D.
3.1.2 A Committee member may designate and, once
designated, replace an alternate by giving written notice of
such designation or replacement to the other Committee
members. The alternate designated by a Committee member may
vote and otherwise act in the place of such Committee member.
3.1.3 The names, addresses and telephone numbers of
the Committee members on the date of this Agreement are listed
in the attached Exhibit D.
MASTER AGREEMENT
[1 2282-0001/BA923380.0481
PAGE 7
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3.2 voting for committee Members
The Parties included in each utility Group shall be
entitled to elect one Committee member to represent the
Utility Group on the Committee. In any such election (i.e.,
pursuant to section 3.3 or 3.4 below), each Party shall be
~ntitled to cast one vote for each dollar paid by such Party
p'ursuant to section 4 for such Party's use of the Service
during the prior Fiscal Year, excluding:
(a) any interest, late payment charges, costs or
other amounts paid by such Party on account of any
failure to pay any other amount when due; and
(b) any amount paid after the due date for
nominations specified pursuant to section 3.3.2 or 3.4.2,
as the case may be.
3.3 Regular Elections of Committee Members
3.3.1 Prior to each Annual Meeting, the Committee
shall conduct a regular election pursuant to this section 3.3
~o elect successors for those Committee members whose terms
~xpire at that Annual Meeting. Prior to the first Annual
Meeting, the Committee shall conduct a regular election
pursuant to this section 3.3 to elect Committee members for
those utility Members that do not have a Committee Member on
~he date of this Agreement.
I 3.3.2 At least sixty (60) days prior to the first
~nnual Meeting and any Annual Meeting when the term of any
~ommittee member expires, the Committee shall send to the
Parties included in each utility Group represented by a
~ommittee member to be elected a written solicitation of
?ominations for the Committee member to represent such utility
~roup for the following term. Such solicitation shall specify
the date determined by the Committee as the due date by which
hominations must be received by the Committee. Any Party may
hominate a candidate for election as the utility Group's
~ommittee member by giving the Committee written notice of the
homination prior to the due date specified in the Committee's
~olicitation of nominations or by any other means approved by
I .
the Comm~ttee.
I 3.3.3 At least thirty (30) days prior to the first
Annual Meeting and any Annual Meeting when the term of any
Committee member expires, the Committee shall send to the
Parties included in each utility Group represented by a
Committee member to be elected:
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.
(a) a written ballot including all of the
candidates nominated for such Committee member's position
pursuant to section 3.3.2;
(b) a copy of any resume, statement or other
materials furnished by the nominating Party or the
candidate regarding the qualifications of the candidate,
provided that the Committee may exclude any materials
that it deems to be inappropriate, unreasonable or too
expensive to copy and send;
(c) a statement of the number of votes that each
Party in the utility Group is entitled to cast in the
election; and
(d) a statement of the date determined by the
Committee as the due date by which completed ballots must
be received by the Committee.
3.3.4 The candidate receiving a majority of the
votes cast by Parties in the utility Group shall be elected as
the Committee member for such Utility Group effective as of
the Annual Meeting for which the election is held. If no
candidate receives a majority of the votes cast, then the
Committee shall conduct a special election for the applicable
Committee member position, but only those two (2) candidates
receiving the most votes in the regular election under this
section 3.3 shall be candidates in the special election.
3.4 Special Elections of Committee Members
3.4.1 The Committee shall conduct a special
election upon the occurrence of any of the following events:
(a) in a regular election under section 3.3 or a
special election under this section 3.4, no candidate
receives a majority of the votes cast by the Parties in
the applicable Utility Group;
(b) a Utility Group does not have a representative
on the Committee;
(c) a Committee member's term terminates pursuant
to section 3.5.4(a) or (b); or
(d) Parties entitled to cast twenty-five percent
(25%) or more of the votes entitled to be cast by all of
the Parties included in a Utility Group sign and deliver
to the Committee a written request for a special election
to remove their existing Committee member and elect a
successor.
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.
3.4.2 Promptly after the occurrence of any event
described in section 3.4.1(b) or (c), the Committee shall send
tto the Parties included in the utility Group represented by
tthe Committee member in question a written solicitation of
~ominations for the Committee member to represent such utility
I .' .
Group for the balance of such Comm~ttee member's rema~n~ng
tterm. Such solicitation shall specify the date determined by
tthe Committee as the due date by which nominations must be
teceived by the committee. Any Party may nominate a candidate
for election as the utility Group's Committee member by giving
the committee written notice of the nomination prior to the
due date specified in the Committee's solicitation of
~ominations or by any other means approved by the Committee.
3.4.3 At least thirty (30) days prior to the due
date specified pursuant to (d) below, the committee shall send
to the Parties included in the applicable utility Group:
(a) a written ballot including all of the
candidates nominated for the Committee member position
pursuant to section 3.4.2 or, in the case of a special
election under section 3.4.1(a), the two (2) candidates
receiving the most votes in the prior regular or special
election, as applicable;
(b) a copy of any resume, statement or other
materials furnished by the nominating Party or the
candidate regarding the qualifications of the candidate,
provided that the Committee may exclude any materials
that it deems to be inappropriate, unreasonable or too
expensive to copy and send;
(c) a statement of the number of votes that each
Party in the utility Group is entitled to cast in the
election; and
(d) a statement of the date determined by the
Committee as the due date by which completed ballots must
be received by the Committee.
3.4.4 The candidate receiving a majority of the
yotes cast by Parties in the utility Group shall be elected as
the Committee member for such utility Group effective as of
the date when the Committee notifies the applicable utility
Group of the results of the election. If no candidate
~eceives a majority of the votes cast, then the Committee
khall conduct another special election for the applicable
Committee member position, but only those two (2) candidates
~eceiving the most votes in the prior special election under
this section 3.4 shall be candidates in the special election.
MASTER AGREEMENT
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PAGE 10
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,
3.5 Term of Committee Members
3.5.1 The term of any Committee member elected
pursuant to section 3.3 or 3.4 shall commence on the effective
date of his or her election.
3.5.2 Subject to extension as provided for in
section 3.5.3 and to earlier termination pursuant to section
3 . 5 . 4 :
(a) the term of each Committee member listed in the
attached Exhibit 0 shall expire on the date of the Annual
Meeting in the year specified in the attached Exhibit 0;
(b) the term of each Committee member elected
pursuant to section 3.3 that commences prior to the 1994
Annual Meeting shall expire on the date of the Annual
Meeting in the year specified in the attached Exhibit C;
(c) the term of each Committee member elected
pursuant to section 3.3 that commences as of or after the
1994 Annual Meeting shall expire at the third Annual
Meeting after the commencement of his or her term; and
(d) the term of each Committee member elected
pursuant to section 3.4 (excluding any special election
under section 3.4.1(a) arising out of a regular election)
shall expire upon the expiration of the remaining balance
of the term of any such Committee member's predecessor.
3.5.3 In the event a special election is conducted
pursuant to section 3.3.4 to elect a successor for a Committee
member whose term would otherwise expire under section 3.5.2,
the term of such Committee member shall be extended pending
completion of the special election and shall expire on the
commencement date of the term of his or her successor.
3.5.4 The term of any Committee member shall
terminate prior to the expiration of his or her term pursuant
to section 3.5.2 upon the occurrence of any of the following
events:
(a) the death of the Committee member;
(b) the Committee member resigns by giving the
Committee written notice of such resignation; or
(c) a successor is elected pursuant to a request
under section 3.4.1(e).
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,
3.6 Committee Meetings
3.6.1 The Committee shall have regular meetings as
determined by the Committee, but not less than once in each
dalendar quarter. The Committee shall give all Parties
~easonable advance written notice of the time and place of its
~egular meetings (e.g., by publication of the schedule for
~egular meetings in a newsletter or other materials
distributed to all Parties).
\ 3.6.2 The committee shall have special meetings as
determined by the Committee. Further, any two (2) or more
dommittee members may call a special meeting of the Committee
by giving all other committee members notice thereof at least
f,ive (5) business days in advance of the meeting. The
Oommittee shall use reasonable efforts to give all Parties
~easonable advance notice of any special meetings of the
Gommittee whenever practicable in the circumstances, taking
~nto account the time permitted, costs of the notice, the
dgenda of the meeting and other pertinent factors.
I 3.6.3 All meetings of the Committee shall be held
at the One-Call Office or at such other place as may be
I.' .
determlned by the Commlttee. Presence at a meetlng by the
Gommittee member or such member's designated alternate shall
donstitute a waiver by that Committee member of notice of the
~eeting and any objection to the place of the meeting.
I 3.6.4 Minutes shall be kept of each Committee
meeting and provided to all Committee members. Each Party
~hall have access to the minutes of any Committee meeting and
the right to examine and copy the same at its own expense
during normal business hours at the One-Call Office upon
ieasonable3~:~:nc:n:O::::yt:a:h:t::::i:::e~bserve any
~ommlttee meetlng.
3.7 Manner of Acting by the committee
3.7.1 The committee may act by adoption pursuant
to vote taken at a meeting of the committee in accordance with
I
paragraph 3.7.2 or by written instrument signed by all of the
~ommittee members.
I 3.7.2 On each matter put to a vote of the
~ommittee, each Committee member shall be entitled to cast one
(1) vote. Any matter put to a vote of the Committee shall be
cleemed adopted by the Committee upon receiving the affirmative
~ote of a majority of the total number of committee members,
~xcept as otherwise specified in this Agreement and except
that all of the following shall require the affirmative vote
MASTER AGREEMENT
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.
of at least two-thirds of the total number of Committee
members for adoption:
(a) any change in the Fiscal Period;
(b) any change in the location of the One-Call
Office;
(c) termination of the Term pursuant to section
2.2(g);
(d) any change in the number, nature or
classification of utility Groups under section 1.1.13;
(e) any change in the charges for use of the
Service pursuant to section 4.1;
(f) the authorization or 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) ;
(g) the imposition of any surcharge pursuant to
subsection 4.3(b);
(h) the termination of any Party's participation in
the Service pursuant to section 5.2.2;
(i) the selection of the Contractor, the terms of
any contract between the Contractor or any other Person
and the Committee and any extension or amendment of any
such contract;
(j) 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;
(k) the establishment, and delegation of any
authority of the Committee to, any subcommittee of the
Committee;
(1) the adoption or amendment of any policy,
procedure, guideline, rule or requirement pursuant to
section 2.2(c);
(m) the rendering of any interpretation,
construction or clarification of this Agreement pursuant
to section 2.2(d)i
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,
(n) the establishment of procedures for the
determination, billing, payment and collection of charges
for use of the Service, any surcharge under section 4.3
and other amounts payable under this Agreement pursuant
to section 2.2(e);
(0) the establishment of any sinking funds or
reserves (other than reasonable reserves for working
capital in the ordinary course of performing the Service)
for contingencies and other purposes in connection with
performance of the Service; and
(p) any amendment of this Agreement pursuant to
section 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
rlondiscriminatory. The Committee may establish different
dharges for different classes of users; provided that there is
J reasonable basis for distinguishing different classes of
Jsers and for establishing different charges for different
dlasses. The charges in effect on the date of this Agreement
~re set forth in the rate schedules attached as Exhibit E.
I .'
Such charges are presently assessed only agalnst the Partles;
~owever, the Committee may, in its discretion, assess charges
I
Dor use of the Service by others. Subject to the procedures
dutlined in section 7, the Committee may at any time change
tihe charges effective for the Service provided during any
I. .
Rlscal Perlod.
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
rtinety (90) days prior to the commencement of each Fiscal
~eriod, the Committee shall approve a budget of the estimated
Gommon Costs to be incurred to provide the Service during such
~iscal Period. Attached as Exhibit F is the budget of
estimated Common Costs to be incurred to provide the Service
I
during the Fiscal Period commencing on August 1, 1992, as
Jpproved by the Committee. For each Fiscal Period, the
~ommittee shall endeavor to establish charges designed to
produce revenues sufficient to pay all of the Common Costs for
~uch Fiscal Period.
J,ASTER AGREEMENT
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4.3 Common Costs in Excess of Revenues
If, at the close of any Fiscal Period, the Common Costs
exceed the revenues received from charges for the Parties' use
of the Service, the Committee may:
(a) pay the excess during the next or succeeding
Fiscal Periods (e.g., through charges for use of the
Service in such later Fiscal Periods);
(b) impose and collect from each Party a one-time
surcharge equal to the total excess amount multiplied by
a fraction, the numerator of which is the total charges
properly payable by such Party for use of the Service
during the relevant Fiscal Period and the denominator of
which is the total charges properly payable by all
Parties for use of the Service during the same Fiscal
Period; or
(c) pay the excess out of any outstanding reserves
or excess revenues from prior Fiscal Periods.
Any surcharge under (b) above shall not constitute or be
deemed to constitute a change in the charges under section 4.1
and shall not be subject to the procedures set forth in
section 7. Each Party shall pay such surcharge within sixty
(60) days after the date of the invoice therefor or such
larger period of time as may be specified by the Committee.
4.4 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, checks, bills and cash which may from time to time
be received on account of the Service shall be deposited
immediately in such account or accounts in the same form in
which they are received.
4.5 Books and Records of Common Costs
The Committee shall provide for a complete and accurate
set of books and records of the Common Costs. Such books and
records shall be kept in accordance with generally accepted
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 or such other location as
may be specified by the Committee. Each Party shall have
access to such books and records and the right to examine,
copy and audit the same at its own expense during normal
MASTER AGREEMENT
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PAGE 15
3/19/93
business hours upon reasonable advance notice to the
I . .
C0mm1ttee. The Comm1ttee shall cause such books and records
tb be audited not less frequently than annually by an
ihdependent certified public accountant selected by the
Cbmmittee. The Committee shall provide each Party with
c~rtified financial statements for each Fiscal Period
(including, but not necessarily limited to, a balance sheet
ahd a statement of results for the Fiscal Period) promptly
after the end of such Fiscal Period.
4.6 Other committee Records
All other records of the Committee relating to this
Agreement (including, but not limited to, copies of all
written contracts with the Contractor or any other Person
ehtered into by the Committee) shall be kept at the One-Call
Office or such other location as may be specified by the
cbmmittee. Each Party shall have access to such records and
I
the right to examine, copy and audit the same at its own
ekpense during normal business hours upon reasonable advance
nbtice to the Committee.
slction 5. The Parties
5.1 Additional Parties
Any Person that owns or operates subsurface utility
facilities (including, but not necessarily limited to, any
e!lectric, gas, telephone, water, cable television or
cfmmunications distribution system) within the Service Area
may become a Party upon execution of a subscription Agreement
abd acceptance of such Subscription Agreement by the
Cfmmittee. The Committee shall not unreasonably withhold or
delay its acceptance of any subscription Agreement tendered
for acceptance.
5.2 Termination of participation
5.2.1
Voluntary withdrawal
Any Party may withdraw as a Party:
(a) effective upon the expiration of not less than
one hundred twenty (120) days after such Party gives the
Committee written notice of such withdrawal;
(b) effective as of the effective date of any
increase in the charges payable by such Party for use of
the Service made by the Committee pursuant to section 4.1
(e.g., excluding any increase or surcharge pursuant to
section 4.3), provided that such Party gives the
committee written notice of the withdrawal at least
MASTER AGREEMENT
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j
forty-five (45) days prior to the effective date of the
increase; or
(c) effective as of the effective date of any
amendment of this Agreement made by the Committee
pursuant to section 9.4, provided that such Party gives
the Committee written notice of such withdrawal prior to
the expiration of thirty (30) days after the effective
date of the amendment.
No withdrawal pursuant to this section 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.
5.2.2
other Termination
In the event of any material breach of or default under
this Agreement (including, without limitation, any refusal or
failure to pay when due any charges for use of the Service,
any surcharge under section 4.3 or any other amount payable
under this Agreement) by any Party, the Committee may
terminate such Party's participation in the Service and rights
under this Agreement as follows:
(a) A Notice of Termination shall be sent to the
Party by first-class mail, postage prepaid, and shall
include (i) a statement outlining the reason(s) for such
termination, (ii) the effective date of such termination,
(iii) the action the Party must take to cure the stated
breach or default, and (iv) notice of the party's right
to have the Committee review the Notice of Termination
pursuant to section 6.
(b) The actual termination of a party's
participation in the Service shall take place, if at all,
not less than thirty (30) days after the Notice of
Termination is placed in the mail addressed to such Party
and only if the breach or default is not cured prior to
the expiration of such thirty (30) day period.
(c) The Committee shall not be required to give the
Party any warning or notice of the ordered termination
other than the Notice of Termination.
(d) If the Party disputes any termination under
this section 5.2.2, the Party may submit the dispute for
review and resolution under section 6 by giving the
Committee written notice thereof prior to the time and
date termination is scheduled to occur, as specified in
the Notice of Termination. If the Party timely disputes
MASTER AGREEMENT
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the termination, actual termination will be stayed
pending completion of the procedures under section 6.
Termination pursuant to this section shall not relieve or
r~lease any Party from any of its obligations with respect to
charges accrued, Common Costs incurred or any other liability
afcrued or incurred prior to the effective date of such
termination.
5.3 utility Group Assignment
Each Party shall select and be assigned to one (1)
U~ility Group at the time of submittal and acceptance of its
Sfbscription Agreement. Exhibit A lists the Parties on the
date of this Agreement by utility Group. Parties eligible to
~articipate in multiple utility Groups may be assigned to only
one (1) utility Group at any time. Such Parties may change
~heir utility Group assignment by giving written notice to the
I.. .
Olommlttee; provlded that such change shall be effectlve as of
~he next Annual Meeting falling at least forty-five (45) days
~fter the Committee's receipt of the Party's written notice.
5.4 Annual Meeting
An annual meeting of the Parties shall be held on the
~hird Friday in september of each year at 9:00 a.m. at the
9ne-call Office (or on such other date and at such other time
or place as the Committee may direct) for the purpose of
dlecting Committee members and transacting such other business
ds may properly come before the meeting.
I t' 't 1 t' , '
Sec 10n 6. D1SpU e Reso u 10n and Comm1ttee ReV1ew
6.1 Procedure for Dispute Resolution
Except as otherwise provided in section 6.2, any
controversy or dispute between the Parties, or anyone or more
6f them, or between a Party and the Contractor arising under
tthis Agreement and any request for Committee review of an
issue or dispute that is specifically authorized under any
provision of this Agreement or document adopted pursuant to
tthis Agreement shall be heard and resolved by the Committee as
I
follows:
(a) A Party seeking Committee review shall send a
written Notice of Request for Committee Review to the
Committee and to each Party involved in the issue,
controversy or dispute (a "Participating Party"). Unless
a shorter period of time is specified elsewhere in this
Agreement or in any document adopted pursuant to this
Agreement, such notice must be received by the Committee
within ninety (90) days after the occurrence of the
tV1ASTER AGREEMENT
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event(s) giving rise to the issue, controversy or dispute
in question.
(b) The Notice of Request for Committee Review
shall set forth in reasonable detail (i) the reason(s)
for the request, (ii) the identity of each Participating
Party, and (iii) any demand for a formal hearing before
the Committee.
(c) Within fifteen (15) 'days after the Notice of '
Request for Committee Review is sent, each participating
Party (including the Party who initiated the review
process) shall set forth in writing a statement of its
position and submit such statement to the Committee and
to each of the other Participating Parties, if any.
(d) within fifteen (15) days after receipt of a
Participating Party's statement of position, any other
Participating Party may submit to the Committee and to
each other Participating Party a written response to that
statement.
(e) If demanded by the requesting Party in its
Notice of Request for Committee Review, demanded by any
other Participating Party in its position statement, or
on the Committee's own initiative, a hearing will be held
within thirty (30) days after the end of the fifteen (15)
day response period set forth in section (d) above. In
that event, the Committee shall send a Notice of Hearing
to each Participating Party at least fifteen (15) days
prior to the date of the scheduled hearing.
(f) At the hearing before the committee, if any,
each Participating Party shall be entitled to (i) present
all relevant evidence, (ii) question any witness called
by the Committee or any other Participating Party,
(iii) give an oral statement of its position, and
(iv) require the attendance of the Contractor or any
other Party having relevant evidence.
(g) within fifteen (15) days after the end of the
thirty (30) day period specified in section (e) above
(whether or not a hearing is actually held), the
Committee shall issue to each of the Participating
Parties a written decision setting forth in reasonable
detail its reasons and bases for the determination.
The written decision of the Committee shall be final and
binding on the Parties. The failure of any Party to comply
with the Committee's written decision may result in the action
specified by the Committee (e.g., termination, suspension,
etc.), if any, being taken on the date specified without
MASTER AGREEMENT
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further notice to the noncomplying Party. Under no
c~rcumstances shall a Party be entitled to seek Committee
rbview of any issue, controversy or dispute more than once
without the Committee's prior written consent.
6.2 Exception
Section 6.1 shall not apply to any dispute or controversy
arising under section 8.5.
I t' d ' , t t' d
Sec 10n 7. A m1n1S ra 1ve proce ures
7.1 Application
The procedures outlined in section 7.2 shall apply only
to proposals by the Committee to adopt:
(a) changes in the charges for use of the Service
or any rate schedule related thereto pursuant to
section 4.1;
(b) changes in the number, nature or classification
of Utility Groups;
(c) amendments to this Agreement pursuant to
section 9.4; and
(d) such other proposals as the Committee may
determine to make subject to the procedures outlined in
section 7.2.
7.2 Procedures
Committee proposals to which this section applies shall
not be finally adopted by the Committee except as follows:
(a) The Committee shall send a written Notice of
Proposal to each Party, which shall (i) describe the
proposal in reasonable detail, (ii) notify the Party of
its right to submit written comments on the proposal for
a period of at least thirty (30) days from the date of
the Notice of Proposal, (iii) notify the Party of its
right to request a hearing on the proposal before the
Committee, and (iv) notify the Party that the proposal
will be adopted and take effect, if at all, ninety (90)
days from the date of the Notice of Proposal.
(b) Each Party shall have the right to submit
written comments on the Committee proposal within thirty
(30) days after the date of the Notice of Proposal.
MASTER AGREEMENT
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.
(c) If requested by a Party in its written comments
submitted pursuant to section (b) or on the Committee's
own initiative, a hearing on the proposal will be held
not earlier than forty (40) and not later than sixty (60)
days after the date of the Notice of Proposal. In that'
event, the Committee shall send each Party a written
Notice of Hearing not later than fifteen (15) days prior
to the date scheduled for such hearing.
(d) At the hearing on the proposal before the
Committee, if any, each Party shall be entitled to submit
all relevant evidence and make an oral statement of its
position on the proposal.
(e) The Committee may take final action on a
proposal at any time after the end of the thirty (30) day
comment period or, if a hearing is held, after the close
of the hearing. The Committee shall notify each Party of
any final action within one hundred twenty (120) days
after the date of the Notice of Proposal.
Action taken on a proposal by the Committee pursuant to
section (e) above shall be final and binding on the Parties
and, unless otherwise specified by the Committee, shall take
effect ninety (90) days after the date of the Notice of
Proposal. Any action taken by the Committee pursuant to and
in accordance with this section 7 shall not be subject to
review under section 6.
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 any
one or more of them or to impose any partnership obligation or
liability upon any Party. Except as specifically provided in
section 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.
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8.3 No Third Party Beneficiaries
There are no third-party beneficiaries under this
Agreement (other than the Committee members and alternates) or
olf the Service. This Agreement shall not be interpreted or
c10nstrued to confer any right or remedy upon any Person (other
than the Parties and the Committee members and alternates) or
~o relieve or release any Person (including, but not limited
~o, the Contractor) from any obligation or liability to any
~arty. Without limiting the generality of the foregoing, the
Service is for the sole benefit of the Parties and not for the
denefit 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
6perated by any Party (or any portion thereof) to the pUblic
I
0r 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
?f this Agreement, be responsible for the obligations,
~iabilities, acts or omissions of any other Party. Without
limiting the generality of the foregoing:
(a) No Party shall be responsible for the charges
and other 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 section 4.1 or the excess Common Costs allocated
under section 4.3).
(b) 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.
(c) 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
MASTER AGREEMENT
l12282-0001/BA923380.0481
PAGE 22
3/19/93
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 section shall
apply to any claim of an employee or former employee of
the First Party against any other Party. In connection
with any action to enforce the provisions of this
section, the First Party expressly waives any defense,
immunity or limitation (e.g., 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). Although the foregoing
waiver may apply to a claim of an employee or former
employee of the First Party against any other Party, it
shall not be interpreted or construed to apply to any
claim of any employee or former employee against his or
her own employer or former employer.
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, filing and prosecution of
an application of recognition of exemption 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
MASTER AGREEMENT
[ 12282-0001/BA923380.0481
PAGE 23
3/19/93
obligations under this Agreement on account of any
Uhcontrollable Forces shall use its best efforts to promptly
chre such delay or failure. If any delay or failure to
I
perform caused by Uncontrollable Forces affects any
r~quirement of this Agreement, such requirement shall be
eguitably adjusted to reflect such delay or failure.
9~2 communications
9.2.1
Directed to a-party
Any notice, request, designation, direction, statement or
o~her communication directed to a Party under this Agreement
shall be in writing and shall be delivered in person or
~ailed, properly addressed and stamped with the required
~ostage, to such address as the intended recipient shall
specify in its Subscription Agreement. Any Party may change
~ts address for communications under this section by giving
~he Committee notice of such change in accordance with
I .
sect~on 9.2.2.
9.2.2
Directed to the committee
Any notice, request, designation, direction, statement or
other communication directed to the Committee under this
Agreement shall be in writing and shall be delivered in person
6r mailed, properly addressed and stamped with the required
postage, to the attention of the "operating Committee Chair"
~t the One-Call Office. The Committee may change its address
for communications under this section by giving the Parties
hot ice of such change in accordance with section 9.2.1.
9.3 Entire Agreement
This Agreement sets forth the entire agreement among the
Parties and supersedes any and all prior agreements with
tegard to the Service.
9.4 Amendment
This Agreement may be amended from time to time, in whole
or in part, by the Committee in accordance with the procedures
bet forth in section 7.
9.5 Implementation
Each Party shall take such reasonable action (including,
but not limited to, the execution, acknowledgment and delivery
of documents) as may be requested by the Committee for the
implementation or continuing performance of this Agreement.
MASTER AGREEMENT
11 2282-0001/BA923380.0481
PAGE 24
3/19/93
~
9.6 Nonwaiver
The failure of any Party to insist upon or enforce strict
performance of any provision of this Agreement or to exercise
any right or 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 sections 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 sections.
9.9 Governing Law
This Agreement shall be interpreted, construed and
enforced in all respects in accordance 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, operation of law or otherwise)
shall release or relieve any Party of any of its obligations
or liabilities under this Agreement.
MASTER AGREEMENT
112282-0001/BA923380.0481
PAGE 25
3/19/93
. '
9.12
Disposition of Assets at the End of the Term
Any and all funds or other assets in the control of the
~ommittee at the end of the Term shall be applied:
(a) first, to the payment of Common Costs;
(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 statute, regulation, rule or order
of similar import.
9.13
Effective Date
This Amended and Restated Master Agreement for the
Northwest One-Call Subsurface warning System shall be
effective as of April 1, 1993.
MASTER AGREEMENT
(12282-0001/BA923380.0481
PAGE 26
3/19/93
Exhibit
A
B
C
D
E
F
List of Exhibits
List of Parties
Form of Subscription Agreement
List of utility Groups
List of Committee Members
Rate Schedules
Budget of Common Costs for
Fiscal Period August 1, 1992
through July 31, 1993
LIST OF EXHIBITS
[ 12282-0001/BA923380.0481
Reference
Introduction,
section 5.3
section 1. 1. 10
Sections 1.1.13,
3.5.2(b)
sections 3.1.1,
3.1.3, 3.5.2(a)
section 4.1
section 4.2
PAGE 1
3/19/93
- uu1c 3/19/93
"
1. COUNTIES AND oar
Asotin County DPW
Benton County DF;'l
Clallam County DPW
Franklin County DPW
Jefferson County D~q
King Conty DPW
Kitsap County DPW
Lewis County DPW
Okanogan County DP\q
Thurston County DPW
Whatcan County OP\q
Washington State D.O.T.
Exhibit A
PARTIES
Exhibit A
,.
j
PAR'I'IES
2. CITIES/T01~S
City of:
Algona
Anacortes
Arlington
Astoria
Auburn
Blaine
Bremerton (water)
Burlington
Bonney Lake
Bainbridge Island
Bothe 11
Bellevue
Bellingham
Bremerton (electric)
Centralia
Chehalis
Des Moines
Edmonds
Enumclaw
Everett
Everson
Ephrata
Ferndale
Fife
Fircrest
Grandview
Gig Harbor
Issaquah
Kennewick
Kent
Kirkland
Lacey
Lynnwood
Lynden
Lewiston
Lake Forest Park
Medina
Mercer Island
Morton
Marysville
Mountlake Terrace
t10ses Lake
Napavine
Normandy Park
Nook sack
"
Page 2
2.Cities/Towns
Exhibit A
Othello
Olympia
Oak Harbor
poulsbo
Port Angeles
Prosser
Port Townsend
Puyallup
Port Orchard
Pasco
Pacific
Renton
Redmond
Richland
Royal City
Seattle (water)
Seattle (engineering)
Sumas
Sunnyside
Shelton
Sumner
Snoqualmie
Snohanish
Sequim
Seaside
Stanwood
Tukwila
Toppenish
Tumwater
Warren ton
Yelm
Town of:
Coupeville
Friday Harbor
La Conner
Milton
Pe Ell
Quincy
Steilacoom
3. CABLE TV COMPANIES
Columbia Basin Cable
Lake TV Cable
Northland Cable TV
Olympic Cablevision
Sammons Communications Wash
Southwest Wash. Cable TV
Sun Country Cable
** TCI Cablevision
Telepro Communications
united Artists Cable
viacam Cablevision
,~
Exhibit A
PARTIES
**
Includes offices in all states served by UULC.
Exhibit A
PARTIES
4. ELECTRIC
Benton County PUD #1
Benton RFA
Big Bend Electric
Clallam County PUD #1
Columbia RFA
Elmhurst Mutual Light/Power
Franklin County PUD #1
Grant County PUD
Idaho County Light & Power Co-op
Lakeview Light & Power
Lewis County PUD
Lincoln Electric Co-op
Mason County PUD #l
Mason County PUD # 3
Metro Transit
Ohop Mutual Light Co.
Okanogan County Electric
Orcas Power & Light
Pacific Power & Light Co.
Parkland Light & Water
Peninsula Light Co.
puget Sound Power & Light
Seattle City Light
Snohomish PUD
Tacoma City Light
Exhibit A
PARTIES
5. NATURAL GAS
Cascade Natural Gas
Northwest Natural Gas
Seattle Steam Co.
Washington Natural Gas
Washington Water Power
,
6. CORRIDOR UTILITIES
Air Products Corp.
Arco Western Pipeline
* AT&T Communications
Bellingham Frozen Foods
Buckeye Pipe Line Co.
Chevron Pipeline Co.
Columbia Irrigation District
Electric Lightwave
Franklin Co. Irrig. Dist. ~l
Kennewick Irrig. District
Lewiston Orchards Irrig. Dist.
* MeI Telecommunications
NAS Whidbey Island
Northwest Pipeline Corp.
Olympic Pipeline Co.
Pacific Gas Transmission
Roza Irrigation District
* Sprint Communications
Sunnyside Valley Irrig. Dist.
Transmountain Pipeline
*
Exhibit A
PARTIES
Includes offices in all states served by UULC.
Exhibit A
"
PARrIES
7 . ~'1ATER / SEWER DISTRICTS
Alderton McMillin Water
Alderwood Water District
Annapolis Water District
Asotin County POD #1
Bell Bay Jackson Water
Bellingham Frozen Foods
Birch Bay Water & Sewer Dist.
Boistfort Valley Water
Bryn-Mawr/Lakeridge Water/Sewer
Burton Water Co.
Camano Co-op Water/Sewer
Camano Water Association
Cape George Water System
Cape Horn Water Supply
Cedar River Water & Sewer
Central Orchards Sewer District
Chealco community Water
Cross Valley Water
Curran Mutual Water
Eagleridge Homeowners Assoc.
Eastgate Sewer District
Erland Point Water Co.
Federal Way Water & Sewer Dist.
Firgrove Mutual, Inc.
Fruitland Mutual Water
Glacier Water District #14
Harbor Waster Co.
Highland Water District
Hameacres Water District
Indian Springs Water Co.
Island Utility L.P.
Kala Point Utility Co.
King County Water Dist. # 19
King County Water Dist. # 20
King County Water nist. * 45
King County Water Dist. # 49
King County Water oist. * 54
King County Water nist. # 83
King County Water Dist. * 85
King County Water nist. # 90
King County Water nist. #105
King County Water nist. #107
King County Water Dist. #111
King County Water Dist. #117
King County Water Dist. *119
King County Water nist. #125
Kitsap County POD #1
Lakewood Water District
Lake Stevens Sewer District
Ludlow Water Co.
Lummi Island Scenic Estates
Page 2
7.Water & Sewer Districts
Exhibit A
Manchester Water District
Metro Engineering Services
r,udway Sewer District
Mukilteo Water District
Mt. view Edgewood Water
NE Lake Washington W/S
NE Sammamish Sewer/Water
North Perry Water District
Olympic View Water & Sewer
Pierce County Utilities
Rainier View Water
Rainier Vista Sewer District
Rose Hill Water/Sewer
Rochester Water Association
Sammamish Plateau W/S
Sandy Point Improvement
Scatchet Head Water District
Seven Lakes Water Association
SE Tacoma Mutual
Shore Acres Water Co.
Shoreline Wastewater District
Shoreline Water District
Shorewood Water District
Silverdale Water District #16
Silver Lake Water District
Sierra Vista Association
Skagit County Water Dist. #1
Skagit County Sewer Dist. #2
Skyway Water & Sewer District
Soos Creek Water & Sewer
South Bainbridge Water
South Hill Sewer District
Southsound Utility Co.
Span away Water Co., Inc.
Surrunit Water Supply
Sunnyslope Water District
SW Suburban Sewer District
Tapps Island Association
Tacoma city Water Dept.
Tacoma Sewer Dept.
Union Hill Water
Val Vue Sewer
Whatcom County Water Dist. # 2
Whatcom County Water Dist. #10
Whatcom County Water Dist. #12
Woodinville Water District
'.
Exhibit A
PARTIES
8. TELEPHONE
Asotin Telephone Co.
Boeing
Continental Tel. of NW
* General Tel. of NW
Hood Canal Tel. Co.
Inland Telephone Co.
McDaniel Telephone Co.
Peninsula Telecom
* PTI Communications
Tenino Telephone Co.
Toledo Telephone Co.
* United Telephone of NW
* US WEST Communications
US WEST - Hanford Federal Svcs.
Weyerhaeuser
IVhidbey Island Telephone
Yelm Telephone Co.
*
Includes offices in all states served by UULC.
.'
9. STATE OF MONTANA
Beartooth Electric Co-op
Blackfoot Telephone Co-op
Big Sky Community TV, Inc.
Cable t>bntana
Cenex Products Pipeline
City of:
Billings
Bozeman
East Helena
Glendive
Great Falls
Helena
Malta
Missoula
Red Lodge
Shelby
Colorado Interstate Gas Co.
Canoco Pipe Line Ccmpany
Cut Bank Gas Ccmpany
Exxon Pipeline Co.
Exxon Refinery
Fergus Electric Co-op
Great Falls Gas Co.
Heights Water District
Hill County Electric
K.N. Energy, Inc.
Maria's River Electric Co-op
Lockwood Water Users Assoc.
rHd-Rivers Telephone Co-op
Missoula Electric
Mission Valley Power
Montana-Dakota Utilities
Montana Power Ccmpany
Montana Refining Co.
r10untain Water Co.
Mountainview CATV
Exhibit A
PARTIES
"
Page 2
9. State of Montana
Exhibit A
Nemont Telephone Co-op
Northern Border Pipeline Co.
Park Electric Co-op
petrolane Gas Service
Premier Communications
Range Telephone Co-op
Ravalli County Electric Co-op
Shelby Gas Association
Shell Pipeline Company
Southern Montana Telephone
Sunburst Gas
Texaco Pipeline, Inc.
Tongue River Electric
Town of:
Columbus
Kevin
Saco
West Glendive D~'l
Westby
Three Rivers Telephone Co-op
Triangle Telephone Co-op
Valley Electric Co-op
Vigilante Electric
Williston Basin Interstate Pipeline
Exhibit B
SUBSCRIPTION AGREEMENT
TO
MASTER AGREEMENT
FOR THE
NORTHWEST
ONE CALL SUBSURFACE WARNING SYSTEM
The undersigned hereby subscribes and agrees to the
Amended and Restated Master Agreement for The Northwest One
Call Subsurface Warning system, dated as of April 1, 1993, as
the same may have been or may be amended by
(the "Master Agreement"). All terms defined in the Master
Agreement shall have the same meaning when used in this
Subscription Agreement.
1. By execution of this Subscription Agreement, the
undersigned agrees to become a "Party" under and to be bound
by the provisions of the Master Agreement.
2. The undersigned owns or operates the following
type(s) of subsurface utility facilities:
~ Electric ~ Water
Gas Cable Television
Telephone Communications
streets_~qd Roadways ---- ~ansmission Pipelines
---X- Other WA~ ~ "'~..~
The undersigned elects membership in the C. , ., 'V
utility Group pending further notice to the Committee.
3. The undersigned elects to be charged for its use of
the Service under the following Rate Schedule:
~ Rate Schedule No. 1
Rate Schedule No. 2
Rate Schedule No. 3
Rate Schedule No. 4
Unless specified otherwise above, the undersigned agrees to be
charged for its use of the Service under Rate Schedule No. l
pending further notice to the Committee.
4. The undersigned elects to receive locate request
notifications by the following means pending further notice to
the Committee:
-X-
Automated Printer/Computer
Facsimile
Voice
EXHIBIT B
[12282-0001/BA923380.048J
PAGE 1
3/8/93
5. This Subscription Agreement shall apply to the
undersigned's subsurface utility facilities located in the
areas identified on the map attached as Appendix A hereto.
6.
statement
delivered
address:
Any notice, request, designation, direction,
or other communication under the Agreement may be
or mailed to the undersigned at the following
CITY OF PORT ANGELES
PO BOX 1150
PORT ANGELES, WA ~~362
Attention: Kennet1lD: Ridout
7. 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:
~~Q
u
, 19~
STATE OF WASHINGTON )
) SSe
COUNTY OF CLALLAM )
On this (otfL day of ~;o , 1993, before
me, the undersigned, a Notary ublic in and for the State of
was~on, duly comm~ioned and sworn, personally appeared
(Ai 0 <1 .0. \ DQ'Zt ' to me known to be the
ayor of the CI Y OF PORT ANGELES ,
the corporation that executed the within and foregoing
instrument, and acknowledged said instrument to be the free
and voluntary act and deed of said corporation for the uses
and purposes therein mentioned, and on oath stated that ~
was duly elected, q~lified and acting as said officer of tfie
corporation, that 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.
,fmrb,~. Jm-
NOTARY p L in d fort~ state
of wash~ngton. res~ding at ~+cC7~
My Appolntment Explres: q - - <J
PAGE 2
3/8/93
1.
2.
3.
4.
Exhibit C
UTILITY GROUPS
Utility Group
Counties/state DOT
cities
Cable TV
Electric
5.
Natural Gas
6.
Corridor (e.g., Irrigation,
Pipelines and Longline Telephone)
7.
Water & Sewer Districts
8.
Telephone
9.
state of Montana
EXHIBIT C
112282-0001/BA923380.048J
Initial Term Expires
Annual Meetinq For
1994
1996
1994
1995
1995
1994
1995
1996
1996
PAGE 1
3/8/93
EXHIBIT D
LIST OF COHMITl'EE MEMBERS
Committee Members:
Joe Jainga
Washington Natural Gas
815 Mercer Street
Seattle, WA 98111
Tel: (206) 224-2079
FAX (206) 521-5279
Dave Scholl
US \~ST Communications
1200 3rd Ave. lOth Flr.
Seattle, WA 98101
Tel. (206) 346-9952
FAX (206) 345-6285
Roger Brown
puget Sound Power & Light Co.
P.O. Box 97034 OBC-06N
Bellevue, ~~ 98009-9734
Tel. (206) 462-3002
FAX (206) 462-3347
Jerry Dahl
King County Dept. of Public Works
900 King Co. Adm. Bldg.- Roam 214
Seattle, WA 98104
Tel. (206) 296-6575
FAX (206) 296-0565
Term Expires
Annual Mtg. For:
1996
1994
1995
1995
Exhibit E
RATE SCHEDULES
EXHIBIT E
[12282-0001/BA923380.0481
PAGE 1
3/8/93
..
NORTHWEST ONE-CALL SUBSURFACE WARNING SYSTEM
Rate Schedule No. 1
(General Application)
This Schedule has been adopted by the One-Call Operating
Committee pursuant to the Master Agreement for the Northwest
One-Call Subsurface Warning System.
A. Definitions
1. Unless otherwise indicated, all terms defined in the
Master Agreement will have the same meanings when use in this
Schedule.
2. "Dig site" means the geographic location identified
in a Locate Request as being the site of proposed excavation
work.
3. "Interest Rate" for any Fiscal Period means the
prime rate quoted from time to time by Seafirst National Bank
that is in effect on the first day of such Fiscal Period plus
2% or the maximum rate permitted by applicable usury law,
whichever is less.
4. "Locate Request" means a request received by the
UULC for location of underground facilities.
5. "Subscriber" means a Person who receives Service
under this Schedule.
6. "Subscriber's service Area" means the geographical
area in which a Subscriber's underground facilities are
located.
7. "User Charges" means the Basic Charges, Fax Charges,
Voice Notification Charges, and Montana Customer Service
Charges.
8. "UULC" means the Committee or its designee.
9. "Year" means a Fiscal Period adopted by the
Committee pursuant to the Master Agreement.
B. Availability
Any Party or other user of the Service may apply for
Service under this Schedule.
[ 12282-OOO1/BA920630.069]
-1-
3/8/93
"
.
C. Rates
1. Basic Charges
The Basic Charge is $1.58 per Locate Request transmitted
b~ the UULC to a location designated by the Subscriber,
subject to any credits issued under section E below. The
Basic Charge will apply to each transmission if the Locate
R~quest is transmitted by the UULC to more than one location
d~signated by the Subscriber.
2. Fax Charges
The Fax Charge is $0.32 per Locate Request transmitted to
the Subscriber by facsimile machine, subject to any credits
i~sued under section E below. The Fax charge is in addition
tb the Basic Charge and will apply to each transmission if the
Lbcate Request is transmitted by the UULC to more than one
lbcation designated by the Subscriber.
3. Voice Notification charges
The voice Notification Charge is $0.71 per Locate Request
~ransmitted by voice rather than by automated means, subject
~o any credits issued under section E below. The Voice
Notification Charge is in addition to the Basic Charge and
~ill apply to each transmission if the Locate Request is
~ransmitted by the UULC to more than one location designated
by the Subscriber.
4. Montana customer Service Charges
The Montana Customer Service Charge is $0.16 per Locate
~equest transmitted to a Subscriber receiving Service in the
State of Montana. The Montana Customer Service Charge is in
~ddition to the Basic Charge and will apply to each
~ransmission if the Locate Request is transmitted by the UULC
~o more than one location designated by the sUbscriber.
s. Annual Minimum Charge
The Annual Minimum Charge is $260.00 per Year, pro-rated
for any period less than a full Year. The Annual Minimum
charge will be applied against the User charges payable for
the first Locate Requests transmitted by the UULC to the
Subscriber during the Year for which such Annual Minimum
Charge is payable.
D. Billing
1. The UULC will bill the Subscriber for the applicable
User Charges on a monthly basis.
[12282~lnBA920630.069]
-2-
3/8193
2. The UULC will bill the Subscriber for the Annual
Minimum Charge at the commencement of the Year for which such
charge is payable.
E. Credits
1. Standard Credit
Subject to paragraph E.3 below, any Subscriber receiving
Service under this Schedule that does not elect the Itemized
Credits under section E.2 will automatically receive a
Standard Credit in an amount equal to ten percent (10%) of the
User Charges included in the Subscriber's monthly invoice.
The Standard Credit will be calculated each month as part of
the normal billing process and will be applied against the
total amount due on the invoice for the applicable month.
2. Itemized Credits
(a) Subject to paragraph E.3 below, any Subscriber
rece1v1ng Service under this Schedule may elect to receive
credits for the User Charges associated with Locate Requests
identifying Dig sites outside the Subscriber's Service Area
("Itemized Credits").
(b) A Subscriber may at any time elect the Itemized
Credits under this Section E.2 by giving the UULC written
notice of such election. The Subscriber will then receive
Itemized Credits beginning with the first monthly invoice sent
to the Subscriber more than 30 days after the Subscriber's
written notice of election is received by the UULC.
(c) A Subscriber may revoke its election under
paragraph (b) above by giving the UULC written notice of such
revocation. Such revocation will be effective as of the first
day of the Fiscal Period next commencing after the
Subscriber's written notice of revocation is received by the
UULC.
(d) Any Subscriber that has elected to receive
Itemized Credits shall, on or before the date payment is due
on the monthly invoice for which any Itemized Credits are
requested:
(i) fill out, sign and deliver to the UULC a
Credit Request Form (attached) identifying all
Locate Requests for which a credit is claimed; and
(ii) tender payment for the balance of the
invoice.
The Subscriber shall not be entitled to an Itemized Credit for
any Locate Request if the Subscriber does not identify such
[12282-OOO1IBA920630.069]
-3-
3/8/93
I
"
Locate Request in a completed Credit Request Form delivered to
the UULC prior to the due date of the applicable invoice.
I (e) The Itemized Credits will be applied against
the total amount due on the invoice for the applicable month.
I (f) Each Credit Request Form submitted by a
Subscriber is subject to audit by or for the UULC for a period
of one year after its receipt by the UULC. If any audit by or
fbr the UULC discloses that the Subscriber has claimed any
I. . . -.. .
I~em1zed Cred1ts to wh1ch the Subscr1ber 1S not ent1tled, the
S~bscriber shall immediately pay to the UULC the unpaid
b~lance of the Basic Charges, Fax Charges and/or Voice
~otification Charges that are payable, plus interest at the
Ilnterest Rate from the date originally due until the date
~aid. If the deficiency for any month exceeds 10% of the User
Charges properly payable on the invoice for any month, then
~he Subscriber shall immediately payor reimburse all costs
~ncurred by the UULC to conduct the audit.
I (g) The Subscriber shall have the right to have the
~ommittee review the results of any audit. A request for such
teview must be submitted to the Committee within 60 days after
the Subscriber is notified of the results of the audit. The
Subscriber's request and subsequent Committee review will be
governed in all respects by section 7 of the Master Agreement.
I 3. The credits under this Section E will be available
rnlY with respect to Service after July 31, 1993.
F. Additional Terms and Conditions
1. A Subscriber must complete and deliver such forms
~nd other documentation as may be required by the Committee or
the UULC to apply for service under this Schedule.
2. Any Subscriber receiving more than 50 Locate
Requests per month may be required to provide UULC compatible
teleprinter, facsimile and other equipment for automated
receipt of Locate Requests transmitted by the UULC.
3. The UULC will screen all Locate Requests in
accordance with its standard screening practices and
procedures. The Subscriber will be responsible for final
screening of all Locate Requests transmitted to the Subscriber
by the UULC (e.g., to determine whether or not a particular
Locate Request identifies a Dig site in the Subscriber's
Service Area). The Annual Minimum Charge will not be subject
to reduction, credit, offset or other adjustment for Locate
Requests identifying Dig sites outside the Subscriber's
Service Area.
4. The Subscriber will furnish to the UULC and be
responsible for all maps and other information showing the
[12282-000 IIBA920630.069]
-4-
3/8/93
boundaries of the Subscriber's Service Area. The UULC will be
entitled to rely upon such information.
S. This Schedule, the charges set forth in this
Schedule and any Service provided under this Schedule are
subject to the Master Agreement and all applicable policies,
procedures, guidelines, rules, requirements and orders
previously or hereafter adopted by the Committee. Without
limiting the generality of the foregoing, Service under this
Schedule may be suspended or terminated in accordance with the
Master Agreement and the above-referenced policies,
procedures, guidelines, rules, requirements and orders.
6. The Committee may at any time amend this Schedule by
action of the Committee taken in accordance with the Master
Agreement.
originally Adopted: March 6, 1992
Amended: April 1, 1993
[ 1 2282-0001 IBA920630.069)
-5-
3/8/93
\
credit Request Form
Date:
I,
, on behalf of
(name of requesting indIVidual)
, request the following
I (name of subscriber)
credits relating to charges under Invoice No.
I
regard to the Dig Sites which are highlighted
itlentified on the attached invoice, statement
dbcumentation or which are specified below:
I
with
or otherwise
or other
I Locate
Credit Number Dig site Amount
I 1
I 2
I 3
f 4
I 5
I Subtotal From Attached Sheet
I Total Itemized Credit
I certify that the above-requested credits are
appropriate and permissible under section E.2 of Rate Sched
No. 1 for the Northwest One-Call Subsurface warning System.
SIGNED:
(name of subscriber)
By
Its
[12282-OOO1/BA920630.069]
ule
3/8/93
,.
AMENDED AND RESTATED
COLLECTION POLICIES AND PROCEDURES
FOR THE
NORTHWEST ONE-CALL SUBSURFACE WARNING SYSTEM
Table of Contents
section Title paae
1 Purpose 1
2 Definitions 1
3 Late Payment Charge 2
4 Collection Agency 2
5 Legal Action 2
6 Suspension of Service 3
7 Amendment or Repeal 6
[BA911840.050]
3/8/93
'"
AMENDED AND RESTATED
COLLECTION POLICIES AND PROCEDURES
FOR THE
NORTHWEST ONE-CALL SUBSURFACE WARNING SYSTEM
section 1 - purpose
111 These policies and procedures are adopted by the One-Call
Operating Committee ("Committee") pursuant to the Master
Agreement for the Northwest One-Call Subsurface Warning
system ("Master Agreement") .
1.2 The rights and remedies set forth in these policies and
procedures are cumulative and will not be interpreted or
construed as limiting any other right or remedy to which
the Committee, the UULC or any Party may be entitled
under the Master Agreement or applicable law.
section 2 - Definitions
I
2.1 Unless the context or the express language clearly
suggests otherwise, all capitalized terms used herein
will have the same meaning ascribed to them by the Master
Agreement.
2..2 "UULC" means the committee or its designee.
I
2..3 "Interest Rate" for any Fiscal Period will mean the prime
rate quoted from time to time by Seafirst National Bank
that is in effect on the first day of such Fiscal Period
plus two percent (2%) or the maximum rate permitted by
applicable usury law, whichever is less.
section 3 - Late payment Charge
b.l The UULC may impose and collect a monthly late paYment
charge from any Party failing to pay any invoiced amount
within thirty (30) days after the date of invoice or such
later date as may be determined by the Committee.
3.2 The amount of such late paYment charge will be the total
of all amounts then due multiplied by a percentage equal
to the then-current Interest Rate.
3.3 Any delinquent amounts disputed by the Party and subject
to a pending review before the Committee shall not be
included in the calculation of the late paYment charge
under Section 3.2, except as directed by the Committee in
the Committee's written decision after completion of the
Committee's review.
AMENDED AND RESTATED POLICIES AND PROCEDURES
'12282-0001 /BAS1 1840.0501
PAGE 1
3/8/S3 10:18 pm
section 4 - Collection Agency
4.1 The UULC may refer any Party's account to a licensed
collection agency for the collection of all delinquent
charges, plus collection costs, at any time after the
Party has failed to pay any invoiced amount within sixty
(60) days after the date of the invoice or such later
date as may be determined by the Committee.
4.2 Any delinquent amounts disputed by the Party and
subject to a pending review before the Committee
shall not be referred to a collection agency under
section 4.1, except as directed by the Committee in
the Committee's written decision after completion of
the Committee's review.
section 5 - Legal Action
5.1 Notwithstanding the Committee's resort to or
implementation of any other right, remedy or procedure
relative to a Party's delinquent account, the Committee
may authorize the UULC to commence legal proceedings to
collect all delinquent charges at any time after the
Party has failed to pay an invoiced amount within sixty
(60) days after the date of the invoice or such later
date as may be determined by the Committee.
section 6 - Suspension of Service
6.1 Whenever a Party has failed to pay any invoiced
amount within sixty (60) days after the date of the
invoice, the UULC may issue a Notice of Suspension
to such Party.
6.2 The Notice of Suspension will be sent to the Party
by first-class mail and will include:
(a) the reason(s) for the suspension of the
Service;
(b) the time and date such suspension will occur;
(c) the action to be taken by the Party to cure the
default; and
(d) notice of the Party's right to request
Committee review of the Notice of Suspension
under section 7 of the Master Agreement.
6.3 The actual suspension of the Service to any Party will
take place, if at all, not less than ten (10) business
AMENDED AND RESTATED POLICIES AND PROCEDURES
112282-0001/BA911840.050)
PAGE 2
3/8/9310:18 pm
days after the Notice of suspension is placed in the mail
addressed to such Party.
6.4 The UULC will not be required to give the Party any
warning or notice of the ordered suspension of the
Service other than the Notice of Suspension.
6.S The Party will have the right to have the Committee
review the Notice of Suspension. A request for such
review must be submitted to the Committee prior to the
time and date suspension of the Service is scheduled to
occur, as specified in the Notice of Suspension. If the
Party timely exercises its right to Committee review,
actual suspension of the Service will be stayed pending
completion of the review process and thereafter will be
implemented or revoked in accordance with the Committee's
written decision. The Party's request and subsequent
Committee review will be governed in all respects by
section 7 of the Master Agreement.
6.6 In the event the Service to any Party is suspended, such
Party may reinstate the Service by paying all amounts
showing on the Party's account, including interest, late
payment charges, or other properly assessed charges that
are then due and owing, and/or taking such other action
as directed by the Committee.
6.7 Notwithstanding such suspension of the Service, the
committee, the UULC, and any Party to the Master
Agreement will have the right to take any and all such
other action against the Party to which the Committee,
the UULC, or the Party may be entitled under the Master
Agreement, these policies and procedures, or applicable
law.
section 7 - Amendment or Repeal
7.1 These policies and procedures may be amended or repealed
at any time by action of the Committee taken in
accordance with the Master Agreement.
ADOPTED July 12, 1991
AMENDED January 17, 1992; April 1, 1993
AMENDED AND RESTATED POLICIES AND PROCEDURES
[1 2282-0001/BA911 840.0501
PAGE 3
3/8/93 10: 18 pm
Exhibit F
BUDGET
EXHIBIT F
112282-0001/BA923380.048J
PAGE 1
3/8/93
Enclosure # 4
THE NORTHWEST ONE CALL SUBSURFACE WARNING SYSTEM
COMMON COST BUDGET SUMMARY
Fiscal Year August 1, 1992 - July 31, 1993
Center Operating Costs
I
Birr.1ing Costs
I . C
Accountlng osts
Lefal/Ins. & Bonding Costs
Loan Expenses
dl ..
A rertlslng
Meeting Expenses
Printing and Mailing
Miscellaneous
rrotal:
$ 1,497,475
17,350
8,500
67,514
149,640
15,000
7,000
10,000
200
$ 1,772,675
PROPRIETARY INFORMATION: This proposal contains information developed b1
Udi1ities Underground Location Center and may not be disclosed without
prior written consent.
Budget '92-'93
Page 2
Asp1undh Contract
BUDGET ITEM: Center Operating Costs
Grid Update
FAXNet
Dictaphone
MT System Rep.
Total:
System Enhancements:
Grid Update
Faxnet
Dictaphone
$ 1,395,196
37,300
34,900
8,000
22,075
$ 1,497,471
37,300
34,900
8,000
80,200
Buaget '92-'93
I
Page 3
BUDGET ITEM: Billing Services
In house billing Service
$ 5,000
Credit Handling Costs
10,750
Bank Collections
1,200
Supplies
400
Total:
$17,350
Budget '92-'93
Page 4
Annual Audit
BUDGET ITEM: Accounting Costs
US Tax Return
Total:
$ 8,000
500
$ 8,500
Budget '92-'93
I
Page 5
BUDGET ITEM: Legal/Insurance and Bond Costs
Attorney Fees
Bonding
Director's Insurance
$ 66,945
569
$ 67,514
Budget '92-'93
Page 6
BUDGET ITEM: Bad Debt Expense:
Bad Debt Loan
$126,957
Sponsor Loan
22,683
$149,640
Total:
Budget '92-'93
I
Page 7
BUDGET ITEM: Advertising
Directory Advertising
$ 3,500
Trade Shows
General Advertising
11,500
Total:
$ 15,000
Budget '92-'93
Page 8
BUDGET ITEM: Meeting Expenses
Seminars $ 5,000
Meetings 2,000
Memberships
Total:
$ 7,000
BuBget '92 - '93
I
Page 9
BUDGET ITEM: Printing and Mailing
Printing
(Focus Magazine/Newsletter)
$ 7,500
Mailing
2,500
$10,000
Total:
Budget '92 - '93
Page 10
BUDGET ITEM: Miscellaneous
$ 200
Budget '92 - '93
I
Page 11
1992 - 1993 BUDGET NOTES
1. Asplundh Contract reflects a 6.7% reduction from FY 91-92
2. Center operating costs reflect a reduction of 3.3% from FY 91-92
3. During FY 92-93 the UULC will install our own billing program vs.
using a third party to prepare invoices and reports.
4. Attorney fees are a direct result of two issues:
A. Non-payment of invoices and the attempts to collect such
unpaid balances.
B. Expenses due to the reorganization of the UULC.
5. Meeting expenses include training seminars for the Operating
Committee and membership meetings.
6. Bad Debt Loan: Due to non-payment of invoices, the Operating
Committee was forced to seek a $ 350,000 line of credit from
Asplundh to cover expenses. It is presumed that as the bad debt
issue is resolved, this loan will be paid off over a period of 3
years.
.
Allocation of pY91-92 Charges by utility Group
13% MONTANA
11 % WATER/SEWER
DPW/DOT
8% CORRIDOR
POWER 17%
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17% TELEPHONE
CITIES 12%
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SUBSEQUE~rr PRINCIPAL PARTY AGREEMENT
FOR
ONE-CALL SUBSURFACE W~,RtlING SYSTEM
~ ,! '-
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This Agreement ;s made this
19th
day of
May, 1981
,
by and between WASHI NGTON NATURAL GAS COMPANY, SEATTLE CITY
LIGHT, PACIFIC NORTH~~ST BELL TELEPHONE COMPANY, KING COUNTY and
PUGET SOUND POWER AND LIGHT COMPANY (hereinafter referred to as the
"Principal Parties"), ASPLUNOH TREE EXPERT COMPANY (hereinafter
referred to as the "Call Center Operator"), and CITY OF PORT ANGELES
(hereinafter referred to as the "Subsequent Principal Party"):
WHEREAS, the Principal Parties have heretofore entered into
an Agreement, entitled IIAgreement For One-Call Subsurface ~Jarl"ling
System (hereinafter referred to as the "Principal Agreement"), a copy
of which is attached hereto as Exhibit A and made a part hereof by
this reference) and,
~~EREAS the Subsequent Principal Party desires to become
a participating ~ubsequent Principal Party under the Principal Agreement,
consistent with the terms and conditions of said Principal Agreement.
NO~I THEREFORE, in cons; derat; on of the promises and of the
mutual covenants and agreements hereinafter set forth, the Principal
Parties, the Subsequent Principal Party and the Call Center Operator
agree as follows:
- 1 -
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ARTICLE I
The Subsequent Prir.cipal Party accepts and agrees to be
bound by the terms and conditions of the Principal Agreement as, and
on the same terms as, other Principal Parties under the Principal
Agreement and further agrees that all future ~ubsequent Principal
Party Agreements shall be executed by only the five original Principal
Parties and the Call Center Operator.
ArTICLE II
The Principal Parties and the Call Center Operator a9ree
to the acceptance of the Subsequent Principal Party as a participating
Subsequent Principal Party under the terms and conditions of the
Principal Agreement as, and on the same terms as, other Principal
Parties under the Principal Agreement.
ARTICLE III
The Subsequent Principal Party agrees to pay a monthly fee
in accordance with the Subsequent Principal Party Rate Schedule
attached hereto as Exhibit B and made a part hereof by this reference.
ARTICLE IV
The Subsequent Principal Party agrees that it shall maintain
in full force and effect durins the terms of this Subsequent Principal
Party Agreement, Workers' Compensation insurance in compliance with
all workers' compensation insurance laws of the State of WBshinston
and comprehensive public liability and property damage insurance,
including contractual liability coverage, with minimum limits of
$500,000 personal injury per person and per occurrence and $500,000
- 2 -
"I '
aggregated per occurrence and $100,000 per occurrence property
.
City of Port An~eles
Attn: City Manager's Office
P.O: Box 1150
Port Angeles~ ~~
98362
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damage and no XCU (underground explosion and collapse) exclusion.
Such insurance shall be in such form and with such carriers as Ire
acceptable to the Principal Parties. Written proof of compliance
",ith the terms of this paragraph, satisfactory to the Pri nc; pal
Parties, shall be furnished to any of the Principal Parties at their
request. Such policies of insurance shall be endorsed so as to
provide that at least 30 days' prior written notice of cancellation
or changes thereof shall be provided to the Principal Parties.
ARTICLE V
Any written notice(s) to be directed to the Subsequent
Principal Party shall be directed and addressed as follows:
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f1.n)' \llritten notice(s) t~ be directed to the Principal
Parties shall be directed and addressed as fol10\ll5:
WASHIN~TCN NATURAL rJ\S CO~\PANY
ATTN: Mr. Joe Jainga
P.O. 90x 1869
Seattle, ~ash;n9ton 98111
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SEATTLE CITY LIGHT
ATTN: Mr.. Pete T~ner~lli
3613 4th Avenue South
Seattle, Washington 90134
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PUGET SOUND PO\IER Arm LIGHT COMPANY
ATTN: Mr. Carl Anderson
Puget Power Building
Bel1evue, Washington 90009
./
PACIFIC NORTHWEST BELL T:LEPHONE COMPANY
ATTN: Mr. Don \ling
Room 2806
1600 Bel Plaza
Seattle, Washington 98191
KING COUNTY LlEPARTr'lENT OF PUBLI C \.'ORKS
ATTN: Mr. Victor S. Sparling
Room 913
Administrative Building
Seattle, Washington 98104
Any written notice(s) to be directed to the Call Center
snall qe directed and directed and addressed as follows:
UTIILITIES UNDERGROUND LOC~TION CENTER
ATTN: Mr. Tom Odegaard, Manager
13547 S.E. 27th Place
Suite 3-C
Bellevue, Washington 90005
IN \HTNESS ~.'HEREOF, the parties hereto have executed this
Agreement this /9-Q.J day of )"n~ J 19jJ
PR I NCI PAL PARTIES
\ plANY
PAC~:::_.TE~EPHONE COHPANY
~..
~:::L
KING COUNTY DEPARTHENT OF PUBLIC \.'ORKS
~~w~
puv".w ,POlIER Jjj':.IGHT COMPANY
=.o&f41OjVUJ11lJ/A Q
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SUBSEQUENT PRINCIPAL PARTY
CITY OF PORT ANGELES
ATTEST:
~t!~~ {!. ~~
City Clerk
~ ~CJ /?'?/
Date; May i9~ 1981
;,
CALL CENTER OPERATOR
,
~---~. ,/
Tom Odegaard, Manager
UTILITIES UNDERGP.OU~ro LOCATION CENTER
,- s -
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.
SUBSEqUENT PRINCIPAL PAHTY SERVICE lJNITS/RATI~ SCIIEDLJU~
Complete this fonn and return with two
Party Agreement.
signed copies of the Subsequent
The following units are being served by
City of Port Angeles
(Name of Subsequent Principal Party)
May 19
, 19 81
.
as of
Number of Units
Telephone Unit
Dept. of Transportation
= A Water Meter or Sewer
Customer I power & Gas
~ A Single Phase Meter
= A Meter
= A Residential or Commercial
Meter
= A Customer Billed
= A Residential Subscriber
= A Right-of-Way Mile
a population of Unincorporated
Area
= A Residential Subscriber
= A Per County Involved
6614
8000
n/a
(33.07)
(40.00)
tvlunicipa 1i ty
Power Uni t
Wa ter Uni t
Gas Unit
Sewer Uni t
TV Cable Unit
Pipeline Uni t
County Units
nla
n/a
nla
nla
n/a,
n/a
n/a
TOTAL UNITS
14~614
TOTAL COST
$0,005
$73.07
Cost per Month
. Units X Monthly Charge
RATE SCHEDULE
Minimum Charge: $5.00 per Month I 1,000 Units
$25.00 Minimum Charge if Operating Reports are
County Rates are for One Year.
or Less.
Requested.
Telephone:
TV Cable:
Power:
Pipelines:
Wa ter:
Gas:
Sewer:
County:
Dept. of Transportation:
;c per Water Meter or Sewer Customer & Power or Gas
Rates if Municipal Owned.
;c per Residential Subscriber.
;c per Residential Subscriber.
;c per Single Phase Meter.
75c per Right-of-Way Mile.
;c per Meter.
;c per Residential or Commercial Meter.
;c per CUstomer Billed. (Sewer Districts only)
;c per population in Unincorporated Area. (Per Year Charge)
Minimum Charge Per County Involved.
Municipali ty:
BY Samuel J. Haguewood
DATE: May 19, 1981
TITLE
ATTEST:
Mayor
-~
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CITY CLERK
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Hay 14, 1981
~
MEMORANDID1
To:
City Manager/City Council ()~\
~
Department of Public Works
One-Call Sub Surface Warnino System
From:
Subject:
Enclosed for your consideration are two copies of the contract
for the above- referenced one-call system.
The present local system is no longer in service and the one-call
(call before you dig) system is a vital link between contractors, the public
and the utilities involved.
The major advantages of the one-call communications system are:
1. Minimized damage to underground facilities
2. Greatly reduced possibility of accidents
3. Handling calls that would otherwise be handled by utilities
4. Increased advanced notice of excavations
5. Helping avoid costly service interruptions to utility facilities
6. Reporting contractor damages from all utilities to isolate
constant offenders
Under the old system the cost for the years 1979 and 1980 was approxi-
mately $275.00 per year for water, sewer and light.
The monthly rate for 1981 for water, sewer and light will be $73.07 or
$876.84 yearly for all City of Port Angeles utilities.
Added benefits to the City of Port Angeles are (1) 48 hours required
notice from contractors as opposed to 24 hour notice; (2) Call Center errors and
omissions liability insurance; (3) Contractors have one toll free number to call
for service instead of 2 or 3.
KDR:j 1
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SU!3SErJUENT HE1'W::P. CHECKLIST
listed below is a suggested checklist for potential
Subsequent Hembers to our One-Call System. I hope this 'iN) 11
assist you in preparation of your utility for membership.
. * -...
"
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-x
(1) Com?'ete Subsequent Contract
0,
x
(2) Complete Rate Schedule
See
Attached
Listed
Below
(3) Compile Map of Total Service Area
(4) Provide Contact Name/Phone Number and Office
Hours of Utility Contuct Person
Listed
Below
(5) Provide li~t of Utility Holidays
(4)' Contact People for:.-
I Public Works Dept., Water and Sewer
Jan Levinson
457-0411 (Ext. 120)
Hours: 8:00 a.m. to 5:00p.m.
City Light Department
Linda. Stone
457-0411 (Ext. 157)
Hours: 8:00 a.m. to 5:00 p.m
(5) List of-Utility Holidays
New Years Day
Lincoln's Birthday
I Washington's Birthday
1 Hemorial Day
I Independence Day
I
i Labor Day
I Veterans Day
I Thanksgiving Day
i The day after Thanksgiving
Christmas Day
January 1
February 12
Third Monday in February
Last Monday in May
July 4
First Monday in September
November 11
Fourth Thursday in November
Fourth Friday in November
December 25
. .~
"'
"
SU8SEQUE~rr PRINCIPAL PARTY AGREE~ENT
FOR
ONE-CAll SUBSURFACE \-IM~mNG SYSTEM
This Agreement is r.~de this
19th
day of
May~ 1981
,
.' ,',
by i}nd between WASHINGTON NATURAL ("AS COMPANY, SEATTLE CITY
LIGHT, PACIFIC NORTH'r./EST BEll TELEPHONE COMPANY, KING COUNTY and
PUGET SOUND ~OWE~AND LIGHT COMPANY (hereinafter referred to as the
It Prf nd pa 1 Partf esrt), . AS.PlUNDH TR EE EX PERT COMPANY (heref nafter
referred to as the IICa11 Center Operator"), and CITY OF PORT ANGELES
(hereinafter referred-to 'as the "Subsequent Principal Party"):
WHEREASg the Principal Parties have heretofore entered into
--
an Agreement, entitled "Agreement For One-Call Subsurface Harl'ling
System (heref nafter referred to a s the "Pri nci pa 1 Agreement"), a copy
of which fs attached hereto.as Exhibit A and made a part hereof by
this-reference! andg
~rnEREAS the Subsequent Principal Party desires to become
a participating Subsequent..Pr.incipal Party under the Principal Agreement,
consistent with the terms and conditions of said Principal Agreement.
NO\I THEREFORE,- in consi derati on of the promi ses and of the
mutual covenants and agreements hereinafter set forth, the Principal
Parties, the Subsequent -Principal Party and the Cat 1 Center Operator
~gree as follows:
- 1 -
~' l '."'_
~-' ~.'" . ~
" .
,\
ARTICLE I
The' Subsequent Pri r.d pa 1 Part)' accepts and agrees to be
I
bound by the terms and conditions of the Principal Agreement as, and
I
oA the same terms as, other Principal Parties under the Principal
I
Agreement and further agrees that all future )ubsequent Principal
,
Party Agreements shall be ex~cuted by only the five original Principal
Parties and the Call Center Operator.
I
I Ar.TIClE II
- Jhe Principi'1-:f~ar:ties and the, Call Center Operator agree
I
to'the acceptance of the Subsequent Prir.cipal Party as a participating
I
Su~sequent'-'Pri nci pal Party under the terms and condi ti ons of the
,
Pr~ncipal Agreement as, and on the same terms as, other Principal
i
Parities under the Pri-ncipal Agreement..
I
ARTICLE I II
The Subsequent Principal Party agrees to pay a monthly fee
-
in accordance with the Subsequent Principal Party Rate Schedule
attached hereto as Exhibit B-and made a part hereof by this reference.
l
! ARTICLE IV
i
I The Subsequent Principal Party agrees that it shall maintain
I
in full force and effect durin; the terms of this Subsequent Principal
I '
pariy Agreem~nt, Workers' Compensation insurance in c~pliance with
,
all ;workers' compensation insurance laws of the State of \.Iashinston
,
andicomprehensive public liability and property damage insurance,
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incl~ding contra~tual liability coverage, with minimum limits of
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$500',000 personal injury per person and per occurrence and $500,000
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aggregated per occurrence and $100~OOO per occurrence prope~ty
,
damage ~nd no XCU (underground explosion and collapse) exclusion.
Such insurance shall be in such form and with such carrie~~ as are
acceptable to the Principal Parties~ Wiitten proof of compliance
'rrith the terms of this paragraph, satisfac:ory to the Principal
.
Parties, shall be furnished to any of the Principal Parties at their
request. Such policies of insurance shall be endorsed so as to
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provide that at__least 30 days' prior written notice of cancellation-
or changes thereof shall be provided to the Principal Parties.
ARTICLE V
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Any written notice(s) to be directed to the Subsequent
Principal Party_shall be directed and addressed as follows:
City of Port Angeles
Attn: City Manager's Office
P.o. Box 1150
r9rt Angelesl ~a: 98362
I'.ny 'I/ritten notice(s) to be directed to the Prindpal
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Parties shall be directed -and addressed as follows:
WASHINGTON NATURAL rJ\S COHPANY
.I\TTN: Mr--Joe Jainga
P.O. 90x 1869
Seattle, ~ashin9ton 98111
SEATTLE CITY lIraHT
- ATTN:-- Mr. Pete- Tenerelli
3613 4th Avenue South ,-
Seattle, \/ashfngton 90134-
PUGET SOUND pmlER AND lIGHT COMPANY
ATTN: Mr. Carl Anderson
'Puget Power Building
Bel1evue. Washington 9~009
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PACIFIC NORTHWEST BELL T::lEPHONE CO~\PM.jY
ATTN: Hr. Don \ling
Room 2806
1600 Bel Plaza
Seattle~ Washington 98191
KING COUNTY uEP^RTiiENT OF PU:lLIC \,fORKS
ATTN: Hr. Victor S. Sparling
Rocr.1 913
Admin;strat;ve Bu;lding
Seattle. Washington 98104
-Any written notice{s} to be directed to the Call Center
snail be directed and directed and addressed as follows:
';greement this
UTIILITIES UN~ERGROUND LOCATION CENTER
ATTN: - Mi-.- Tom Odegaard. Manager
13547 S.E. 27th Place
Suite 3-C
Beltevue_ Washington 9C005
IN WITNESS ~~EREOF, the parties hereto have executed this
day of
-PRINCIPAL PARTIES
\-!ASHItJGTON W,-TURAL GA.S CmlPANY
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PACIFIC NORTH\1EST Br::Ll TELEPHONE- COHPANY
s~""\.rrlE CITY -LIGHT
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KING COurlTY DEPARTItENT OF PUt3LIC \!OP.KS
FUGET- SOUND Po\JER AND II GHT COMPANY
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SUBSEQUENT PPWCIPAl PARTY
CITy CF ?ORT ANGELES
t~yorJ Samuel J. Haguewood
CALL CENTER OPERATOR
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To~ Odegaard, Manager
UTILITIES UNDERGP.OUtID lOCATION CENTER
.,.
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ATTEST:
City Clerk
Date: ~~y 19, 1981
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SUllSE(lUl::NT PRINCIPAL P,\({TV Sf.[{IJICE UNITS/RATE SCl\t::DlJU~
Complete this fonn
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Party Agre(:metlt.
1,le following units
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as of Nay 19
and return with two
signed copies of the Subsequent
are being served by
City of Port Angeles
(Name of Subsequent Principal Party)
) 19 81
Number of Units
Nunicipality
pjwer Uni t
wJ ter Un! t
c1s Uni t
- . -Sewer Un! t
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TV Cable Unit
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P;i!peUne -Uni t
Cdun ty Uni ts
'fllePhone'~nit
nJpt. of .Transportatio~
= A Water Heter or Sewer
Customer / pow;r & Cas
m A Single Phase Meter
c::I A Neter
"" A Residential or Commercial
.Meter
= A Customer Billed
... . A Residential Subscriber
''':''::'''--i.a~-- A Right-of-Way Mile
... Population of Unincorporated
Area
~.= A Residential Subscriber
... A Per County Involved
~.~ ".:l~
6614
8000
nla
(33.07)
(40.00)
nla
nla
nla
nla
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nta,-
nia
nla
TOTAL COST
'14,614
$0,005
$73.07
TOTAL UNITS
Cost per Honth
- Units X Monthly Charge
RATE SCHEDULE
__ Minimum Charge: ~5.00-per Month I 1,000 Units or Less.
. __I
I $25.00 Minimum Charge if Operating Reports are Requested.
-1 County Ra.tes are for Oue Year.
Municipality: ~e per Water Meter or Sewer Customer & Power or Cas
I' Rates if Municipal OWned.
Telephone: ~e per Residential Subscriber.
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TV Cable: ~e per ResidentIal Subscriber.
pdwer: ~e per Single Phase Meter.
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Pipelines: 75e per Right-of-Way Mile.
wA ter: ," lJe per Meter.
cAs. ~e per Residential or Commercial Meter.
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Sewer: ~c per Customer Billed. (Sewer Districts only)
cJuuty:~C par Population.ln Unincorporated Area. (Per Year Charge)
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Dept. of -Transportation.: Minimum Charge Per County Involved.
aj samuel~~o:-gueWOOd
TITLE
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A'I1TEST:
,-
, DATE:
l-1ay 19., 1981
CITY CL~