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HomeMy WebLinkAboutAgenda - 08-23-2011 - Information Item 2INFORMATION ITEM MEMORANDUM TO: Orange County Board of Commissioners FROM: Frank Clifton, County Manager John Roberts, County A#orney Craig Benedict, Planning &Inspections-Director DATE: August 18, 2011 RE: DRAFT Interlocal Agreement with Durham -Water & Sewer for Eno EDD This memorandum is to provide an update to the Board on staffs ongoing efforts to secure infrastructure agreements to serve the Eno Economic Development District (EDD) area. Orange County and the City of Durham have_been working on an agreement for water anti sewer utility -extension into the Eno Economic Development_District. This approximately 900 acre district_is adjacent_to the City of Durham near the intersection of I-85 and US 70 in Orange County's eastern economic development zone. This area is within the City of Durham's urban growth boundary where the City has a minor presence of water and sewer facilities, a water main interconnect with the Town of HiWsborough and the sewer service of a- mobile home park. This general area can- be serviced by the City of Durham. An interlocal water and sewer service agreement can promote an orderly extension to_ future economic development opportunities in the area ftiat was noted by the Eno EDD small area plan adopted by the County in 2008. The long range po#ential and funding of utilities in the area is noted in the County Capital Investment Plan. The agreement (attached in DRAFT form) is still under review by all parties and will set forth aspects of master planning, design, permitting, funding, construction and eventual customer connection. This agreement, after further discussion and revision, will come back within the next few months for Board consideration. If Board members have additional input into the agreement, it is requested that members share comments with the County Attorney or the County Manager as soon as practical. Staff believes the agreement (with some minor adjustments) provides an excellent process to assist in the orderly growth of the Eno EDD, expanding non-residential development options in eastern Orange County. 2 INT-ERLOCAL AGREEMENT BETWEEN ORANGE COUNTY AND THD CITY OF DURHAM FOR CONSTRUCTION AND OPERATION OF WATER AND SEWER FACILITIES IN THE ENO ECONaMIC DEVELOPMENT ZONE OF ORANGE COUNTY This agreement is dated, made, and entered into as of the day of , 20 , by the City, of Durham, a North Carolina municipal corporation ("Durham) and Orange County, a North Carolina political subdivision ("Orange"). [to be inserted, explanation of the purpose of the agreement] 1. Defuutions Year -July 1 -June 30 Zone-= The-Eno- Economic Development District. located at the eastern boundary of Orange where U.S. Highway 70 and Interstate Highway 85 intersect. Described _further in Exhibit A. 2. Design• Durham will solicit and receive proposals` for the design of water and sewer infrastructure to serve the-Zone. Before awarding contracts for such design, Durham will provide Orange with the proposals and other responses to the request for proposals so that Orange may review and comment to Durham regarding the selection of the designer(s). Durham will then proceed to negotiate the professional fees with the designer(s). The fees must be satisfactory to Orange. Durham will not select any designer to which Orange objects based on the qualifications and/or professional fees. If4range does not object within a reasonable time to a designer and its proposed fee structure, Durham may award a contract to the designer for such design in which the proposed fee structure applies. Orange will reimburse Durham for all payments that Durham is required to-pay under the contracts. Therefore, Durham will invoice Orange as invoices are received from the selected designer(s) for payments. made or required to be made under the design contracts. Orange will pay each invoice within thirty (30) days after it receives it. 3. Construction. Durham will solicit bids for the construction of the infrastructure. Durham will share the proposals with Orange. Orange may comment to Durham as to which contractor(s) the award should be made. If Durham concurs, and if Durham determines it appropriate to do so, Durham will award the contract(s) to those contractor(s) and execute contract(s) with them. If Durham does not concur, or if Durham otherwise finds it appropriate to rebid,_ Durham will rebid and continue the process described in this paragraph until Durham makes an award unless the Durham City Manager and the Orange County Manager jointly agree to suspend or abandon the process. By authorizing their respective managers to sign this agreement, the parties' governing bodies authorize them to agree to suspend or abandon the process if they jointly determine it is prudent to do so. If the managers do not jointly agree it is prudent to suspend or abandon the process, the issue of such suspension or abandonment must be jointly determined by the parties' governing bodies. 3 4. Payment. [payment option A] Durham will invoice Orange from as irrnoices are received from the selected construction contraetor for payments made or required to be made under the-construction contracts. Orange will pay each invoice within thirty (30) days after it receives it. [payment option B] Orange will reimburse Durham for-payments made or required to be made under the construction contracts over- a 10-year period, beginning on substantial completion, at an annual interest rate of 5%. [applicable to options a&b] Provided however Orange shall not be required to pay for services that were not appropriately authorized or ratified by-Durham or which Durham did not find to be satisfactorily performed by the contractor, provided that-Durham will not be liable to Orange for making a finding of satisfactoryperformance. Durham will inseri in the construction contracts a provision stating, "Orange CountyYa N. C. political subdivision, is a third-party beneficiary of this contract." 5. Construction Standards. In all respects except to the extent otherwise stated in this contract, the construction will be done in accordance with (i) Durham standards, requirements, and procedures,-including_approvals_of plans, conducting inspections, requiring tests and certif cations, and requiring as-built drawings, and (ii) any applicable federal and state standards. 6. Ownership of and Resnonsibilit<~ for Infrastructure. Durham wi-11 be the owner of and responsible for the operation and maintenance of the infrastructure constructed under the construction contracts. All construction contracts shall provide for dual indemnity of both Orange and Durham. 7. Fees and Charges. As long as a particular property is located outside Durham's corporate limits,. Durham will impose, process, and collect all fees and' charges-with respect to that particular property, including acreage fees, connection charges, frontage charges, capacity charges, and utility rates, as Durham charges on other locations outside- Durham's corporate limits.. Except. to the extent specified otherwise, Orange will have no right to any of those fees. and charges, and nothing in this agreement will affect the use or disposition of those fees and charges. 8. Reduction in Payments from Orange. The acreage fees and frontage charges collected by Durham from the Zone will be used towards payment of the design and the construction of the infrastructure (collectively; the "Dedicated Receipts"). ("Acreage fees" means impact fees (as defined in Durham- City Code sections 30-81 et seq.) that are based on area.) No other fees or charges collected by Durham, such as capacity and connection charges, will be used for that purpose. The amounts to be paid by Orange to Durham under paragraph 4 above in a particular Year will be reduced by the Dedicated Receipts received by Durham in that Year. If the Dedicated Receipts received by Durham in that Year exceed the amounts to be paid by Orange under paragraph 4 in that Year, the excess Dedicated Receipts will be carried forward and used similarly to reduce the amounts to be paid by Orange under paragraph 4 in the following Years.• The Dedicated Receipts received only during the ten Years beginning on the first July 1 after substantial completion of the relevant infrastructure will be applied in this manner. Nevertheless, the ten Year period shall end on or before the expiration of fifteen Years beginning on the first July 1 after the date of this contract. Nothing herein means that Durham will make any payment to Orange on the ground that the Dedicated Receipts exceed, in any Year or Years, the amounts to be paid by Orange under 4 paragraph 4. If Durham is required by a court of competent j-urisdiction to refund any acreage fees orfrontage char-ges that were-used towards payment of the design and the construction of the infrastructure by means of the Dedicated Receipts process-described -above in this paragraph, Orange shall reimburse Durham (i) to the -extent the amounts paid by -Orange to Durham under paragraph 4 above in a particular Year were reduced by the Dedicated Receipts attributable to the amounts refunded, and (ii) for interest associated with the refunds of the acreage fees or frontage charges that Durham is required to-pay by a court of competent jurisdiction. 9. Nondiscriminatory Policies. Durham will not establish policies that impose a level of water and sewer service in the Zone that is inferior to that provided to similarly situated users of Durham water and sewer services. 10. Annexation. Durham may enter into agreements with developer-s and property owners that -they will comply with requirements that Durham desires related to annexation, including that they_ will not seek annexation ~y any municipality other than Durham; that they will petition for annexation when requested by Durham; and that they will- be subject to remedies for violating the annexation-related provisions. 11. Regulations. Durham shall have the authority to protect and regulate the water and sewer systems and its users in the Zone, including water use restrictions and regulations respecting introduction of pollutants into the wastewat-er system: 12. Duration. This agreement shall be perpetual, unless terminated earlier by mutual agreemen#. Nevertheless, this contract shall terminate if construction of the infrastructure has not begun within three (3) years of the date of this agreement. On such termination, ali obligations that are still executo-~Y on both sides are discharged but any right based on prior breach or performance sur-vives The governing body of each parry hereto has determined the duration provided in this paragraph to be reasonable. 13. Appointment of Personnel. The. City Manager shall designate persons to carry out Durham's obligations under this agreement. The County Manager shall designate persons to carry out Orange's obligations under this agreement. 14. Amendment and Termination. This agreement may be amended or terminated by agreement of the parties. An amendment is not valid unless signed by both parties and otherwise in accordance with requirements of law. An amendment is not enforceable against Durham unless it is signed by its City Manager, or a deputy or assistant City Manager. An amendment is not enforceable against Orange unless signed by the County Manager or Chair of the Board of County Commissioners. 15. Notice. (a) All notices and other communications required or permitted by this agreement shall be in writing and shall be given either by personal delivery, UPS, Federal Express, or certified United States mail, return receipt requested, addressed as follows. The parties are requested to send a copy by email. 5 To Durham: Mr. Thomas J. Bonfield City Manager City of Durham 101 City Hall Plaza Durham, NC 27701-3329 Email: tom.bonfield@durhamnc.gov To Orange: Frank Clifton Orange County Manager 200 S. Cameron Street P.O. Box 8181 Hillsborough, NC 27278 Email: fclifton@co.orange.nc.us (b) Change of Address. Date Notice Deemed Given. A change of addr-ess, fax number, or person to receive notice may be made by eitherparty by notice given to the ether party. Any notice or other communication under this -agreement shall be deemed given and sent at the time of actual delivery, if it is personally delivered. If the notice or other communication is sent by United States mail, it shall be deemed given upon. the third calendar day following the day on which such notice or other communication is deposited with the United States Postal Service or upon actual delivery, whichever first occurs." 16. No Third Party Fights Created. This agreement is intended for the benefit of the two parties and not any other person and no rights or benefits are created for or granted to any third party by this agreement"