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HomeMy WebLinkAboutAgenda - 10-16-2012 - 5h ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: October 16, 2012 Action Agenda Item No. 5-h SUBJECT: Interlocal Agreement between Town of Hillsborough and Orange County for Erosion Control Services DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) No Erosion Control Division ATTACHMENT(S): INFORMATION CONTACT: 1. Interlocal Agreement (Contract Craig Benedict, Planning Director, Document, approved by Hillsborough) 245-2592 Ren Ivins, Erosion Control Supervisor, 245-2586 Wesley Poole, Erosion Control Officer I, 245-2587 PURPOSE: To consider approval of an updated Interlocal Agreement to continue implementation of the erosion control program for the Town of Hillsborough by Planning & Inspections' Erosion Control Division. BACKGROUND: Orange County has conducted soil erosion and sedimentation control for the Town of Hillsborough since 1975. Soil erosion and sedimentation control is actually a requirement of the Town's National Pollutant Discharge Elimination System (NPDES) Phase II stormwater permit. While the Town of Hillsborough no longer requires Orange County to provide stormwater services, the Town does want Orange County to continue providing erosion control services within the Town of Hillsborough's planning jurisdiction. Execution of this Interlocal Agreement will provide the means for the continued implementation of the erosion control programs. The County Attorney has reviewed the contract and provided input. The Erosion Control Division does not review or inspect local government projects, whether the projects are Orange County's or other municipalities, so there is no conflict of interest. FINANCIAL IMPACT: The Erosion Control Division is presently partially funded through user fees paid by developers requiring land-disturbing permits. The Erosion Control Division will continue to collect erosion control plan review and land-disturbance fees paid by the developer to fund the erosion control program within the Town of Hillsborough. RECOMMENDATION(S): The Manager recommends that the Board approve and authorize the Chair to sign the Interlocal Agreement. 2 Attachment 1 STATE OF NORTH CAROLINA INTERLOCAL AGREEMENT COUNTY OF ORANGE TOWN OF HILLSBOROUGH INTERLOCAL AGREEMENT THIS INTERLOCAL AGREEMENT made as of October 2012, by and between ORANGE COUNTY, a political subdivision of the State of North Carolina (hereinafter "County") and the TOWN OF HILLSBOROUGH, North Carolina, a municipal corporation of the State of North Carolina(hereinafter"Town"). WITNES SETH: WHEREAS, this Interlocal Agreement is entered into pursuant to G.S. §160A-458 and G.S. §160A-459, which authorize towns to adopt and enforce erosion control ordinances, and G.S. §160A-360(d) which permits the Town to request the Board of County Commissioners to exercise their powers within Town's jurisdiction, and they shall thereupon be empowered to do so until the TOWN officially withdraws its request in the manner provided in G.S. §160A- 360(g). (1969, c. 1065, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 64; 1993, c. 232, s.3.) WHEREAS, this Interlocal Agreement is entered into pursuant to G.S. § 160A-461 (Interlocal Cooperation), North Carolina Statutes, which permits the Town and the County to resolve to enter into a contract of reasonable duration to execute an undertaking within the Town's planning jurisdiction; WHEREAS, County maintains a Department of Planning and Inspections, which includes an Erosion Control Division ("Erosion Control") that conducts site plan review and inspections, maintains administrative offices and records, and administers the Erosion and Sedimentation Control requirements and provisions of the Orange County Unified Development Ordinance; WHEREAS, the Town is desirous of procuring selected services of County for the enforcement of the Erosion and Sedimentation Control requirements and provisions of the Orange County Unified Development Ordinance within the municipal boundaries and/or of the Town's Extraterritorial Jurisdiction as may be changed from time to time; WHEREAS, County, through said Erosion Control Division, is willing to perform such services pursuant to the terms and conditions hereafter set forth; WHEREAS it is in the best interest of the citizens of the Town and County to promote a sustainable community that provides for the monitoring of soil erosion, sedimentation control and protection of water quality; and WHEREAS approval of this Interlocal Agreement can help promote a sustainable community; 3 NOW THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE FULFILLMENT OF THE TERMS OF THIS INTERLOCAL AGREEMENT, THE COUNTY AND TOWN AGREE AS FOLLOWS: ARTICLE 1 —SCOPE OF SERVICES 1.1 The County shall during the term of this Interlocal Agreement and any subsequent renewal thereof, enforce the Erosion and Sedimentation Control requirements and provisions of the Orange County Unified Development Ordinance (hereafter the "Ordinance") as it is currently enacted and as it may be amended or reenacted from time to time, and perform such services in connection with the enforcement of the Ordinance. 1.2 County through its employees shall be responsible for the performance of the Services, including the staff of the Erosion Control Division of the County's Planning and Inspections Department, or any successor division or department as may be designated by the County Manager. ARTICLE 2 —FUNCTIONS AND DUTIES NOT TRANSFERRED TO COUNTY 2.1 It is specifically understood and agreed as provided in Article 1 of this Interlocal Agreement, all rights and powers as may be vested in the Town pursuant to the permit(s)requirement(s), laws of the State of North Carolina, or any other law or ordinance or Charter provision of the Town, shall be retained by Town. It shall be the responsibility of parties other than the County to perform Services not specifically identified as Services to be performed by the County. It is further understood and agreed that the Services to be provided by the County are not intended to include any functions related thereto that are identified below as excluded functions, which shall remain the exclusive responsibility of the Town (hereinafter"Excluded Functions"): Excluded Functions Legal Services Engineering Water Management Drainage Districts Natural Resource Protection Enforcement of Erosion and Sedimentation Control Requirements on Publically Funded Projects (these are enforced by the North Carolina Division of Energy, Mineral and Land Resources, Land Quality Section) 2.2 In the event Town desires to have County add any Excluded Functions to the Services hereunder, a separate agreement therefore may be entered into between Town and County pursuant to Article 8.6 of this Interlocal Agreement. 4 ARTICLE 3 —COMPENSATION 3.1 Erosion and Sedimentation Control: County shall directly collect permit fees to provide the Services set forth in Section 1.2 above and on Schedule "B". Permits shall be issued by County in accordance with the fees charged by County, as such fees may be amended from time to time. All fees shall be retained by County and no other reimbursement from TOWN will be required for the provisions of Services set forth in Section 1.2 and Schedule "B" of this Interlocal Agreement. ARTICLE 4—GOVERNMENTAL IMMUNITY 4.1 To the extent permitted by law, Town agrees to indemnify and hold County harmless from and against any and all claims, liabilities, damages and expenses, including attorney's fees, arising from the Town's operation and maintenance of the Town's Municipal Separate Storm Sewer System and from the implementation of the Permit. Town and County agree to indemnify and hold each other harmless from and against any and all claims, liabilities, damages and expenses, including attorney's fees arising from enforcement of the Erosion and Sedimentation Control Ordinance, Storm Water Ordinance or this Interlocal Agreement. Nothing herein is intended to serve as a waiver of sovereign or governmental immunity by any party to which such immunity may be applicable. There shall be no third party beneficiaries to this Interlocal Agreement, and nothing herein shall be construed as consent to be sued by third parties in any matter arising out of this Interlocal Agreement or any other agreement. ARTICLE 5 —TERM OF INTERLOCAL AGREEMENT 5.1 The term of this Interlocal Agreement shall be until and if the Town petitions the Sedimentation & Erosion Control Commission for its own "Local Program". ARTICLE 6—TERMINATION 6.2 Either party may terminate this Interlocal Agreement, with or without cause, by providing notice to the other party of termination in writing at least 4 months prior to the effective date of termination. This Interlocal Agreement may also be terminated by court order upon the finding that there has been substantial breach of this Interlocal Agreement by the non-complaining party so as to entitle the complaining party to be relieved of its obligations under this Interlocal Agreement. 5 ARTICLE 7—NOTICES 7.2 Any and all notices given or required under this Interlocal Agreement shall be in writing and may be delivered in person or by United States mail,postage prepaid, first class and certified, return receipt requested, addressed as follows: TO COUNTY: Craig N. Benedict, AICP Orange County Planning & Inspections Director P.O. Box 8181 Hillsborough,N.C. 27278 With copy to: Frank W. Clifton, Jr. Orange County Manager P.O. Box 8181 Hillsborough, N.C. 27278 TO TOWN: Eric Peterson Hillsborough Town Manager P.O. Box 429 Hillsborough, N.C. 27278 ARTICLE 8 —MICELLANEOUS PROVISIONS 8.1 Remedy: The parties agree that the remedy of specific performance would be an appropriate remedy, among others, for the enforcement of this Interlocal Agreement. 8.2 Assignment: Neither party shall have the right to assign this Interlocal Agreement without the advance written permission of the other party. 8.3 Waiver: The waiver by either party of any failure on the part of the other party to perform in accordance with any of the terms or conditions of this Interlocal Agreement shall not be construed as a waiver of any future or continuing similar or dissimilar failure. 8.4 Severability: The invalidity of any provision of this Interlocal Agreement shall in no way affect the validity of any other provision. 8.5 Entire Agreement: It is understood and agreed that this Interlocal Agreement incorporates and includes all prior negotiations, agreements or understandings applicable to the matters contained herein, and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this 6 Interlocal Agreement that are not contained in this document. It is further understood and agreed that this Interlocal Agreement revokes and supersedes all prior agreement between the parties relating to the subject matter contained herein. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 8.6 Modification: It is further agreed that no modifications, amendments or alterations in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 8.7 Governing Law: Any controversies or legal problems arising out of this transaction and any action involving the enforcement or interpretation of any rights hereunder shall be submitted to the jurisdiction of the State courts of the State of North Carolina, the venue situs, and shall be governed by the laws of the State of North Carolina. To encourage prompt and equitable resolution of any litigation that may arise hereunder, each party hereby waives any rights it may have to a trial by jury of any such litigation. 8.8 Interpretation: This Interlocal Agreement has been negotiated and drafted by all parties hereto and shall not be more strictly construed against any party because of such party's preparation of this Interlocal Agreement. 8.9 Recording: This Interlocal Agreement may be recorded in the public records of Orange County, in accordance with the North Carolina General Statutes. 7 IN WITNESS WHEREOF, the parties hereto have made and executed this Interlocal Agreement between the County and Town for selected Services to be performed by the County on the respective dates under each signature: ORANGE COUNTY through its BOARD OF COUNTY COMMISSIONERS, signing by and through its Chair or Vice Chair, authorized to execute same by Board action on the of (date) and the TOWN, through its Board of Commissioners signing by and through its Mayor, authorized to execute same by Council action on the day of , (date). COUNTY ATTEST: ORANGE COUNTY By Donna S. Baker, Clerk, Bernadette Pelissier, Chair, Orange County Board of Commissioners Orange County Board of Commissioners day of , (date) APPROVED AS TO FORM: By County Attorney TOWN TOWN OF HILLSBOROUGH Attest: By Tom Stevens, Mayor, Hillsborough Board of Commissioners Town Clerk/Director of Administration Town of Hillsborough day of , (date) By Town Manager day of , (date) APPROVED AS TO FORM: By Town Attorney 8 SCHEDULE B Enforcement of the Erosion and Sedimentation Control Requirements of the Orange County Unified Development Ordinance, as adopted on April 5, 2011 and Amended Thereafter. Erosion Control Scope of Services Orange County will implement and enforce construction site stormwater runoff control for the Town of Hillsborough's through its erosion control program. Orange County has local delegated authority from the state to implement an erosion control program. This scope of services is part of a legal agreement allowing Orange County to enforce the erosion and sedimentation control provisions and requirements of the Orange County Unified Development Ordinance within the Town's jurisdiction. The services provided by Orange County include: Plan Review Review and approve erosion control plans for proposed new development projects within the Town's jurisdiction to ensure compliance with the erosion and sedimentation provisions and requirements of the Orange County Unified Development Ordinance. Inspections Inspect permitted construction sites within the Town's jurisdiction to ensure compliance with approved erosion control plans. As needed, request corrective actions, issue notice of violations and stop work orders as outlined in the erosion and sedimentation provisions and requirements of the Orange County Unified Development Ordinance. These services funded through plan review and land-disturbance fees collected directly from developers. Current fee schedule is provided below. 9 Fee Schedule as of July 1, 2012 Erosion Control Plan Review Fee: THERE IS NO MAXIMUM FEE! Rural Disturbance: $158.00 per acre of disturbance Urban Disturbance: $272.00 per acre of disturbance Intense Urban Disturbance $507.00 per acre of disturbance Land-disturbing Permit Fee: THERE IS NO MAXIMUM FEE! Rural Disturbance: $310.00 per acre of disturbance Urban Disturbance: $646.00 per acre of disturbance Intense Urban Disturbance $1,241.00 per acre of disturbance New Fee as of July 1st 2012: Infill flat fee of$10,000.00. If the project is Intense Urban calculate fees as before and if less than $10,000.00,pay $10,000.00 for the Land Disturbance Permit.