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HomeMy WebLinkAboutUtilities Protection Center Inc. Augusta Richmond GA DOCUMENT NAME: lYl-i ~; -r I € S \>CLc-p;:cr, G I'll Q,,,,,J-rE~. J:rVC. DocuMENT TYPE: A'Cj R f-E)r) S OJ T YEAR: 1 q9 'is . BOX NUMBER: 4:> FILE NUMBER:) ~ D I le NUMBER OFPAGES: ~ .- '\ MEMBERSHIP AGREEMENT FOR UTILITIES PROTECTION CENT~R, INC. AGREEMENT I. Preamble Since 1974, certain Georgia utilities have jointly operated a program known as the Utilities Protection Center for, the purpose of providing a mechanism whereby construction contractors and other persons can determine the location of underground utility facilities prior to engaging in blasting or excavating operations. By providing such information, the Utilities Protection Center is intended to prevent damage to underground utility facilities resul i:ing from such operations, and thereby to prevent inj uries to persons and property and interruptions of utility service. The utilities Protection Center is structured as a nonprofit membership corporation known as Utili ties Protection Center, Inc., the members of which are the participating utilities. Pursuant to an act of the Georgia General Assembly codified as a.C.G.A. ~ 25-9-1 et seq., all persons operating or maintaining underground gas, electric, telephone or telegraph facilities within service areas of the utili ties which jointly operate the Utili ties Protection center must participate in the Center. Participation by Georgia utilities having other types of underground facilities such as wab:r, sewer, and cable television is also encouraged. This Agreement sets forth the rights and obligations as between Utilities Protection Center, Inc. and each utility member. II. Tenns and Conditions. , This Agreement is made and entered into as of Re-r .2.'0 , 19~, by and between Utilities Protection Center, Inc., a Georgia nonpro:Ei t membership corporation having its, principal offices at 3400 Summit Ridge Parkway, Duluth, Georgia 30136 (hereinafter "UPC")., and Auqusta: Georgia , a poli tical subdivision of ~he. Stilte of Georgia, ha~ing it? l?rincipal offJ.ces at 530 Greene St. (hereinafter "UtJ.lJ.ty") . In consideration of the premises and of the mutual covenants and agreemEmts hereinafter set forth, UPC and utility agree as follows: ~ A. Definitions "Costs" means actual direct costs, expenses , 'liabilities and other financial obligations, and does not include any allowance for depreGiation or other indirect cost. "J'1anagement Agreement" means the written contract for the provision of services which may be entered into between Management Company and UPC. "Hanagement Company" means that entity which contracts with UPC throu9h a Management Agreement to provide Services. IINember" means each entity, including Utility, which enters into a Membership Agreement with UPC. IIHembership Agreement II means the written contract entered into between UPC and each Member which sets forth the rights and obligations of UPC and each Member -with respect to the Utilities Protection Center in a form substantially identical to this Agreement. This Agreement is a Membership Agreement. IIServices" means all labor, supervision, materials, services, equipm.ent, supplies and transportation furnished by or through UPC for thE~ operation of the utili ties Protection Center. "UPC Procedural Manual" means that document which describes the Services and the payment and other obligations of Members, as such document may be changed, modified or amended from time to time as provid(~d therein. A copy of such document is attached to this AgreemEmt for pUrposes of reference only and not for purposes of . making such document a part of this Agreement_ "Ut:ilities Protection Center" means that program organized among and between utilities having underground utility facilities in the State of Georgia, by means of which program information regardi.ng the location of such facilities is furnished upon request to memb.ers of the public. The program includes UPC, Management Company, and all Members. B. Provision of Services .' UPC shall provide Services in accordance with the UPC Procedural Manual. Services may be provided directly by UPC, or indirec'tly through a Management Agreement, at the option of UPC. -2- ~ C. Reimbursement for Cost of Services utility shall reimburse UPC for Utility r s share of all Costs incurred by UPC in the course of providing Services. Utility's share of such Costs shall be determined, billed and paid in accordance with the UPC Procedural Manual. D. Cooperation U.tility shall at all times comply with the provisions of the UPC Procedural Manual, and shall use its best efforts to cooperate wi th UPC, the Management Company, and other Members to assure the safe, efficient operation of the utilities Protection Center ;,. 'UPC shall comply with the UPC Procedural Manual, and shall ensure throuqh other Membership Agreements and the Management Agreement that other Members and Management Company comply with theUPC Procedural Manual and use their best efforts to cooperate with Utilit:y and with each other to assure the safe, efficient operation of the Utilities Protection Center. ' E. Audit and Accounting UPC shall ensure that for a period of three (3) years after the payment of any bill rendered to utility for its share of Costs, Utility, its auditor(s) or other authorized representative(s) shall be afforded access at reasonable times to accounting records of UPC and Management Company relative to such bill. F. Indemnification Except to the extent prohibited by law, Utility shall indemnify and ho1Ld harmless upe, other Members, and Management company, and the ofl:icers t directors and employees of each, from all losses, expens,=s, liabilities, demands, claims, arid judgements, including all court costs and reasonable attorneys fees, arising out of injury (including death) t-o any person or damage to any property to the ext:ent resulting from the act or omission of utility; provided, however, that such indemnification shall not apply to any loss, expens(~, liability, demand, claim or judgment incurred by Management Company to the extent covered by any insurance policy -3- ~. spec:~fied in the Management Agreement, or incurred by any Member to the extent covered by any insurance policy specified in such Member I s Membership Agreement. UPC shall ensure that reciprocal indemnification is provided for the benefit of Utility by Manasrement Company through the Management Agreement and by all other Members through their respective Membership Agreements. Utility covenants not' to sue UPC, its officers, directors or employees, under any circumstances or upon any grounds with respect to the Services, any part thereof, or any injury, damage or loss, whether physical or economic, to persons or property,resulting therefrom; provided, ~owe~er, ~othing h~r~in shall be construed fl~ as a waiver of soverelgn lmmunlty by Utlllty._ ~ G. TE!rm and Termination This Agreement shall become effective on the day and year first above written and shall continue in effect until the end of such calendar year, and from year to year thereafter unless terminated in accordance with this Section II. G. Either party may terminate this A,greement upon thirty (30) days written notice to the other. Termination by either party shall not relieve either party of any obligation or liability incurred prior to such termination, regardless of whether the Same be known or unknown prior to such termination. The provisions of Subsections" E, F, and L of Section II of this Agreement shall survive any termination of this Agreement. H . No~tices All notices provided for in this Agreement shall be sent to the following addresses: If to upe: 3400 Summit Ridge Parkway Duluth, Georgia 30136 If to Utility: I. Auqusta":'Richmond County C'ommission c/o N.Max Hicks Augusta utilities Department ~/bU peach Urchard Road Augusta, GA- 30906 - Jq) of thig Aqrccmcnt, Utility ~l1fill mfiint-aiR L7''"' nl6tlra-l es and in the amounts normally maintained. by 1i'c/ entities engaged inutil~ty s . ~d.L";'vl., b\J.t i'" -"lTU: eV-OHt---I:Lot lQSS th-"lM thp rolloFin~: Iu6U1:0,1.ce I. Risk Management Program utili ty, acting by and through the Augusta-Richmond County ;;1$0 , Commission, is under a risk management program for public liability~ risk with respect to this Agreement, and certifies that -4- (i) the risk management program sh~ll b~ primary wit~out.fi ht of confribu~ion from any insurance carr1ed by UPC,~and (11) the risk management program shall guarantee payment to ~PC[for any and all claims, and any and all costs and expens~s 1nc~r~ed ~y UPC in connection with this Agreement and for Wh1Ch Ut111ty 1S liable. ~.. (including broad form contractual liability) Employers per $1,000,000 combined single limit bodily jury and property damage Risk Property $1,000, occurrence Ma f'\a.~1}\.t (o~yo o+-Y\.Lr r~ MSD ~/ Utilit ereby waives any right of subrogation it may ha against, p SD ~ anagement Company or any Member. Utility shall like. e iT' r ire its insurers' to waive such subrogation rights, and sha ~. . ';;;h 9vidonco of cuch Fai u~r I1pnT1 rPlJ1]Pst~ J. Applicable Law This Agreement and the rights of the part~es hereunder shall be governed by and construed and enforced in accordance wi ththe laws of the: state of Georgia. K. No Waiver The failure by either party to insist on performance of any term, condition or instruction, or to exercise any right or privilege included in this Agreement, or its waiver of any breach, shall not thereafter waive any such term, condition, instruction, right or privilege. No waiver shall be valid unless confirmed in writing by the party granting such waiver. L. Third Party Beneficiaries The provisions of this Agreement are for the benefit of the parties hereto, and the other Members and Management company to the extent provided herein, and not for any other person. The obligations of UPC and Utility hereunder may be enforced by any Member or Management Company to the extent of their interest in the matter as if each of them were a party to this Agreement. UPC will --5- PJfc,/ assure that Utility may enforce the Management Agreement against Manag'ement Company and UPC as if Utility were a party to that agreement. Utility and UPC agree to consult (to the extent practicable) with each other, other Members, and Management Company prior to .instituting any lawsuit arising out of the Utilities Protection Center against any Member, UPC, or Management Company, and to cooperate in the conduct of any such lawsuit in order to resolve amicably all disputes, minimize the impact of any dispute on thE~ Utili ties Protection Center, and avoid unnecessary, harassing or duplicative litigation. M. Changes, Modifications and Amendments No changes, modifications or amendments of any of the terms and condit:ions hereof shall be valid unless agreed to by the parties in writing and signed by.their authorized representatives. Changes, modifi.cations or amendments to the UPC Procedural Manual may be made as provided therein. N. Compliance with Laws The parties shall each comply with all federal, state, and local laws and regulations. o. Validity of Provisions In -the event any section or any part or portion of any section of this Agreement shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that section, or any other section hereof, provided that such remaining parts, portions, or sections can thereafter be applicable and effective without material prejudice to either party. P. Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall consti tute but one and the same agreement. Q. Assi.gnment. This Agreement may be assigned in whole or in part by Utility only wit:h the prior written consent of UPC. -6- 7fc/ .. . I ... R. Headings 'rhe headings and subheadings of the various sections of this Agre(:!ment are inserted for convenience only and shall not be considered in interpreting or construing the provisions hereof. S. Entire Agreement 1~his Agreement embodies the entire agreement between UPC and Utility. The parties shall not be bound by or be liable for any statement, representation, promise, inducement, or understanding of any kind or nature no.t set forth herein. &..E~_~ Witness IN WITNESS WHEREOF, the parties heret.o have caused this Agreement to be executed by their duly authorized representatives as of the date and y~ar first 'above written. U:flitie; P~o'l1ction Center, Inc. By: Bl~Lr u. <-- Title: President & Chairman of Bd. ~/f~1jJ~/ ~;s By: T' Thl. doeuIntnl approved II ~, 1II'6cle~ and Iorm. () t';<'1S Y II