HomeMy WebLinkAbout2015-671-E Planning - NC 811 Membership agreement
North Carolina 811, Inc.
Membership Agreement
THIS MEMBERSHIP AGREEMENT ("Agreement") is entered into this the day of
, 2015, by and between North Carolina 811, Inc.
("Notification Center"), a North Carolina not-for-profit corporation, and Orange
County ("Member").
Recitals
Notification Center is a North Carolina not-for-profit member-owned corporation.
Notification Center is sponsored by facility operators to receive and transmit to its
members Notices of planned excavations, Design Notices, Emergency Notices and
Damages, as contemplated by the Underground Utility Safety and Damage Prevention
Act, N.C. Gen. Stat § 87-115 et seq. (the "Act").
DEFINITIONS:
below:
As used in this Agreement, the following terms have the meanings indicated
"Notification Center" shall have the meaning set forth in N.C. Gen. Stat. § 87-
117(17);
"Utility Member" and/or "Operator" shall have the meaning set forth in N.C. Gen.
Stat. § 87-117 (18);
"Locator" shall have the meaning set forth in N.C. Gen. Stat. § 87-117(13);
"Facility" shall have the meaning set forth in N.C. Gen. Stat. § 87-117(12);
"Operator" shall have the meaning set forth in N.C. Gen. Stat. § 87-117(18);
"Associate Member" shall mean any person or entity that furnishes goods or
services to any Operator, and other persons and entities that have an interest in the
prevention of damage to any Facility and the promotion of safe excavation practices.
"Damage" shall have the meaning set forth in N.C. Gen. Stat. § 87-117(4);
"Excavate" or "Excavation" shall have the meaning set forth in N.C. Gen. Stat. §
87-117(13);
"Transmission" shall mean the notification given by Notification Center to
Member or Member's designated Locator of an Excavation, Design Notice, Damage
and/or Emergency;
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"Notice" shall have the meaning set forth in N.C. Gen. Stat. § 87-117(16);
and
"Design Notice" shall have the meaning set forth in N.C. Gen. Stat. § 87-117(7);
"Emergency" shall have the meaning set forth in N.C. Gen. Stat. § 87-117(8).
Other terms used in this Agreement, but not defined herein, shall have the meaning set
forth in the Act.
Notification Center has three categories of members, as follows:
(a) Category One members are Operators;
(b) Category Two members are Locators;
(c) Category Three members are Associate Members.
Member has applied to become a Category One member of Notification Center.
Member represents herein that it is entering into this Agreement on its own behalf and
that it has authority to enter into this Agreement.
In consideration of the Recitals and the mutual covenants and promises contained
herein, the parties hereby agree as follows:
2. Term. This Agreement shall be effective from and after the date hereof and shall
continue in effect until such time as either party terminates this Agreement, in
accordance with the provisions regarding termination of membership contained in
the Bylaws of Notification Center in effect as of the date of the execution of this
Agreement.
3. Documents. Member acknowledges receipt of copies of the Articles of
Incorporation and Bylaws of Notification Center, attached hereto, and agrees to
abide by all of the terms and provisions thereof. Notification Center retains the
authority to amend the Articles of Incorporation and Bylaws from time to time
through lawful action of Notification Center's duly authorized Board of Directors.
Amended versions of the Notification Center's Articles of Incorporation and
Bylaws shall be posted on the Notification Center's website, www.nc811.org, or
otherwise distributed to Member.
4. Fees and Charges. Member agrees to timely pay either (a) the transmission
fees charged by Notification Center to Category One members, or (b) the annual
membership fees charged by Notification Center to Category One members, as
established from time to time by the Board of Directors of Notification Center.
5. Duties of Category One Members. Member shall provide to Notification Center
an electronic database in a format acceptable to Notification Center that contains
a reasonable, detailed description of Member's Facilities located within the
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geographic areas in North Carolina as to which Notification Center is to provide
Member notification of each Transmission ("Notification Area"). Member shall
provide Notification Center with an update of the electronic database of its
Notification Area on an annual basis, at a minimum. Member shall comply with
all of its obligations pursuant to the Act as to Notification Center.
6. Duties of Notification Center. The Notification Center shall provide the
necessary personnel, equipment and a toll-free telephone number for the receipt
of Notice of each Transmission within the Notification Area. Notification Center
will maintain records of receipt of each Transmission in the manner and duration
required by the Act. Notification Center shall promptly relay to Member and/or its
designated Locator each Transmission received within Member's Notification
Area. Notification Center shall comply with all of its obligations pursuant to the
Act as to Member.
7. Indemnification. To the extent permitted by North Carolina law, Member agrees
to indemnify, save and hold harmless Notification Center, its officers, agents and
employees, from and against any and all liabilities, claims, losses, damages,
expenses (including reasonable attorneys' fees), or costs for personal injuries
and/or property damage arising out of (1) any Transmission within Member's
Notification Area, (2) any marking, or failure to mark, the location of any Facility
of Member, (3) any Excavation by any person which injures or damages any
Facility of Member, unless such losses, damages or injuries shall be caused by
the intentional wrongdoing or negligent act or omission of the Notification Center,
provided further that such liability, claim, loss, damage, expense or cost for which
Member is required to indemnify Notification Center arises out of acts for which
the defenses of governmental immunity, statutory or common law immunity is not
available. The indemnification provided by Member herein shall not be construed
as a waiver of any applicable defense of governmental, statutory, or common law
immunity, and shall not prevent the Member from asserting any defense of such
immunity; and if a court of competent jurisdiction determines that no such
immunity applies, then the indemnity provided for herein shall apply to the extent
enforceable under North Carolina law.
8. No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person other than the Parties and their respective successors
and permitted assigns.
9. Succession and Assignment. Member may not assign this Agreement or any
of its rights, interests, or obligations hereunder without the prior written approval
of Notification Center. Notwithstanding the foregoing, Member may assign its
rights, interests and obligations hereunder, without approval of Notification
Center to the parent, subsidiary, or affiliate of Member, or to any entity into which
Member is merged or to which Member sells all or substantially all of its assets.
Notification Center may not assign, sublet, or transfer its interest, duties, or
obligations hereunder, without the prior written consent of Member. This
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Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
10. Notices. Any notice, request, demand, claim or other communication hereunder
("Notice") shall be in writing. The term "Notice," as used in this section, shall not
include or apply to a Notice of Excavation, Emergency, Damage and/or Design
Notice. Any contractual notice may be given by any method listed below and
shall be deemed received on the date stated to the right of each such method, as
follows:
Personal delivery: Upon delivery
Overnight courier service,
charges prepaid:
One business day after receipt by
addressee as shown on the records of the
courier service
Facsimile transmission: The next business day following the date of
transmission as shown on the sender's
records
Registered or Certified U.S. Date of delivery as shown on return receipt
Mail, Return Receipt Requested,
postage prepaid:
Any notice shall be addressed as follows:
If to Notification Center: 2300 W. Meadowview Road
Suite 227
Greensboro, NC 27407
Attn: Executive Director
If to Member: Orange County Planning
P. 0. Box 8181
Hillsborough, NC 27278
Either Party may change the address to which contractual Notices are to be
delivered by giving the other Party contractual notice in the manner herein set
forth to the address herein stated, or as subsequently and correctly amended per
the terms of the Agreement.
11. Governing Law. All matters relating to this Agreement shall be governed by the
laws of the State of North Carolina, without regard to its choice of law provisions,
and venue for any action relating to this Agreement shall be Guilford County Civil
Superior Court or the United States District Court for the Middle District of North
Carolina.
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12. Amendments and Waivers. No amendment or waiver of any provision of this
Agreement shall be valid unless the same is in writing and signed by both
parties. No waiver of breach or violation of any provision shall be deemed to
extend to any prior or subsequent breach or violation of the same or any other
provision, or affect, in any way, any rights arising by virtue of any prior or
subsequent breach of warranty or violation.
13. Entire Agreement. This Agreement constitutes the Entire Agreement between
the Parties and supersedes any prior understandings, agreements, or
representations by or between the Parties, written or oral, to the extent they
relate in any way to the subject matter hereof.
14. Severability. If any provision of this Agreement is deemed invalid, illegal or
unenforceable by a court of competent jurisdiction, such provision shall be
deemed stricken and the remainder of this Agreement shall remain in full force
and effect to the fullest extent permitted by law.
15. E-Verify Compliance. Notification Center shall comply with E-Verify, the federal
E-Verify program operated by the United States Department of Homeland
Security and other federal agencies, or any successor or equivalent program
used to verify the work authorization of newly hired employees pursuant to
federal law and as in accordance with N.C.G.S. § 64-25 et seq. In addition, to the
best of Notification Center's knowledge, any subcontractor employed by
Notification Center as a part of this Agreement, shall be in compliance with the
requirements of E-Verify and N.C.G.S. § 64-25 et seq. Notification Center shall
execute an E-Verify affidavit, which is attached hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives effective as of the date first written above.
This instrument has been pre-audited
in accordance with N.C. Local
Government Budget and Fiscal Control
Act.
(Signature of Finance Officer)
Paul Laughton,
Finance Director
Orange County (SEAL)
(Name of Member)
By:
(Signature)
Bonnie Hammersley Type or Print Name
Name/Title Title County Manager
Approved as to form and
legality,
John Roberts, County Attorney
Name/Title
Date: -------
North Carolina 811, Inc. (SEAL)
(Signature)
Louis Panzer
(Type or Print Name)
Title: Executive Director
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The application of Orange County as a Category One member of North Carolina
811, Inc. is hereby approved.
This is day of 2015.
On behalf of the Board of Directors
of North Carolina 811, Inc.
(Signature)
Lyman M. Horne
(Type or Print Name)
Board President
Title
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