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HomeMy WebLinkAboutAgenda - 09-06-2016 - 6-l - Orange County City of Durham Utility Service Agreement Amendment 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 6, 2016 Action Agenda Item No. 6-I SUBJECT: Orange County/City of Durham Utility Service Agreement Amendment DEPARTMENT: Planning and Inspections ATTACHMENT(S): INFORMATION CONTACT: 1. Original Agreement Craig Benedict, Planning, 919-245-2592 2. First Amendment Kevin Lindley, Planning, 919-245-2583 3. Proposed Second Amendment James Bryan, Attorney's Office, 919-245- 4. Eno EDD Map with New Focus Area 2319 PURPOSE: To amend the deadline for construction to begin in the current utility service agreement from January 31, 2017 to June 30, 2018. BACKGROUND: In late 2011 and January 2012 Orange County and the City of Durham developed and approved an interlocal agreement (Attachment 1): "Interlocal Agreement between Orange County and the City of Durham for Construction and Operation of Water and Sewer Facilities in the Eno Economic Development Zone of Orange County". This request is to amend the deadline for construction to begin as noted in the Second Amendment (Attachment 3). The design process is under way, with CDM Smith set to begin field surveying in mid-September 2016. Based on the current estimate of design, permitting, and bidding processes provided by CDM Smith, construction is estimated to begin near the end of 2017. Unfortunately, the deadline in the current agreement for construction to begin is January 31, 2017. The Second Amendment as proposed would extend the deadline for construction to begin until June 30, 2018. This should give an adequate time buffer if there are any deviations from the schedule and help to ensure the deadline will not have to be amended again. The purpose of the interlocal agreement was to develop a more formal utility service area within Orange County's Eno Economic Development District (EDD) area and within the City of Durham's urban service area (also known as their suburban tier). Typically, utility extensions would be solely the responsibility of developers, but in order to promote the EDD, Orange County will be funding some improvements. The agreement set forth parameters of water and sewer service, feasibility, design, construction and operation of Orange County funded utility investments. Future Capital Investment Plan (CIP) projects were programmed for investment in the area. This agreement was a necessary preamble to begin economic development infrastructure investment in the area funded by Article 46 Sales Tax revenue. The County wanted to ensure that the City of Durham would assume operational responsibility of new infrastructure once 2 installed in this jointly designated Orange County and Durham City economic development area. This area has been designated for Transitional land use since the early 1980's. A lengthy engineering feasibility analysis of what area could be served and at what cost was conducted by a jointly approved outside firm (CDM Smith) starting in late 2012. The findings of the study showed that the costs for a large 796 acre EDD-wide solution were prohibitive at this time due to high off-site (i.e. Durham area) infrastructure costs. This was noted in County CIP work sessions in early 2014. However, a smaller area (see Preliminary Project Map in Attachment 4) in the northeast corner of the EDD, nearest to Durham's existing utilities, was subsequently studied. The results were included in the CDM Smith Final Master Plan Report dated March 2016. The Interlocal Agreement with the City was extended with the First Amendment (Attachment 2) to the agreement in December 2014 to allow time for this study (approved by BOCC at the December 1, 2014 regular meeting). Based on this First Amendment, the current deadline for construction to begin is January 31, 2017. Joint staff discussions have found this amendment reasonable. Once approved by the BOCC, this Second Amendment will be signed by Orange County and transmitted to the City of Durham for signatures since we are the requesting party. FINANCIAL IMPACT: The cost of this project has been accounted for in the current CIP five year plan (FY 2016-21) and sufficient budget has been allocated to cover any expected costs for the current FY2016-17. SOCIAL JUSTICE IMPACT: There is no Orange County Social Justice Goal associated with this item. RECOMMENDATION(S): The Manager recommends that the Board: 1. Approve the amendment and authorize the County Manager to sign on behalf of Orange County, and 2. Authorize staff to forward the signed amendment to the City of Durham for its review, approval and signature. _Please return this copy to the Clerk to the Board's ,3 Attachment 1 office for permanent agenda files d �¢ " 4 INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTY AND THE CITY OF DURHAM FOR CONSTRUCTION AND OPERATION OF WATER AND SEWER FACILITIES IN THE ENO ECONOMIC DEVELOPMENT ZONE OF ORANGE COUNTY This agreement is dated,made, and entered into as of then day of /0,/0,44212 G 20/X..,by the City of Durham, a North Carolina municipal corporation(`Durham)and Orange County, a North Carolina political subdivision("Orange"). Purposes. The purposes of this agreement are(1)to further the economic development potential of land identified by Orange County and the City of Durham in their respective planning documents as particularly suitable for industrial development,as well as to promote the public health and safety of residents within the area,and(2)to accomplish the design,construction,and operation of water and sewer services within the Eno Economic Development District. 1. Definitions • 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,shown in greater detail by the map titled"Eno Economic Development Zone Utility Service Boundary" and attached as Exhibit A. The Zone does not include land in Durham County. 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. If Orange 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 4 INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTY AND THE CITY OF DURHAM FOR CONSTRUCTION AND OPERATION OF WATER AND SEWER FACILITIES'IN THE ENO ECONOMIC DEVELOPMENT ZONE OF ORANGE COUNTY,page 2 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,it is agreed that suspension or abandonment will not be effective unless the parties' governing bodies jointly agree to suspend or abandon. 4. Payment. For each construction contract,Orange will select payment option A or payment option B and will notify Durham of its selection within twenty days after Durham shall have executed the construction contract. Payment option A: Durham will invoice Orange from as invoices are received from the selected construction contractor 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%. The remainder of this paragraph applies to both payment options. [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 satisfactory performance. Durham will insert in the construction contracts a provision stating,"Orange County, a N. C. political subdivision,is a third-parry 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 certifications,and requiring as-built drawings, and(ii)any applicable federal and state standards. 6. Ownership of and Responsibility for Infrastructure.,Durham will 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 the indemnification and defense by the contractors 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 5 INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTY AND THE CITY OF DURHAM FOR CONSTRUCTION AND OPERATION OF WATER AND SEWER FACILITIES IN THE ENO ECONOMIC DEVELOPMENT ZONE OF ORANGE COUNTY,page 3 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 paragraph 4. If Durham is required by a court of competent jurisdiction to refund any acreage fees or frontage charges 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 developers and property owners that they will comply with requirements that Durham desires related to annexation, including that they will not seek annexation by 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 wastewater system. 12. Duration. This agreement shall be perpetual,unless terminated earlier by mutual agreement. 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, all obligations that are still executory on both sides are discharged but any right based on prior breach or performance survives. The governing body of each party 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 6 INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTY AND THE CITY OF DURHAM FOR CONSTRUCTION AND OPERATION OF WATER AND SEWER FACILITIES IN THE ENO ECONOMIC DEVELOPMENT ZONE OF ORANGE COUNTY,page 4 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. 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 address,fax number,or person to receive notice may be made by either party by notice given to the other 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 received 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 Rights 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. This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Ce0/1, Durham 'lance Director Orange Financial Services Director 7 IN7ERLOCAL AGREEMENT BETWEEN ORANGE COUNTY AND THE CITY OF DURHAM FOR CONSTRUCTION AND OPERATION OF WATER AND SEWER FACILITIES IN THE ENO ECONOMIC DEVELOPMENT ZONE OF ORANGE COUNTY,page 5 OF DIM' 4,.... r,: r, 4a CITY OF DURHAM drAL Ati A. ___,:, *.,, t':.,,i,1:d i‘B,. - sil , �;,, • : ,_ homas J.Bonfield Clerk �y.�d R(�I''' City Manager �'« COUNTY OF ORANGE ATTEST: #.," .i. I r an _. 5--, y: /'I__...4.4001.„,.. =x� fF�? Frank Mr, r, w 9,01 61-$14.1F y Clerk ,, • � s � ° County Manager NORTH CAR INA QCKN WLEDGMENT OF CITY OF DURHAM COUNTY of LAr V\ V"Y1 I,a Notary Phiblie in and for e aforesaid County and State certify that ___IT) n rG. personally appeared before me this day,and acknowledged that he or she is the City Clerk of the City of Durham,a municipal corporation,and that by authority duly given and as the act of the City,the foregoing agreement with the County of Orange was signed in its corporate name by its City Manager,sealed with its corporate seal,and attested by its said City Clerk or Deputy City Clerk. Thi he 7Q day of �c{r\L)Ct rr■ / ,20 1 2._ ir Notary Public '' .��,C'11`, j°''� My commission expires: ,' a Tq 4;' °® - NORTH CAROLINA ACKNOWLEDGMENT OF COUNTY OF ORANGE `C. ,t,COUNTY of or.,,A3 ` '' O/:t_\O �v z. J -`4, cQvt-1 ." I,a Notary Public in and for the aforesaid County and State certify that ED Onnq 5. 12,ske,r' personally appeared beforrth,L'IS_day,and acknowledged that he or she is the Or h p County Clerk of the City of Orange,a o Carolina political subdivision,and that by authority duly given Ad as the act of the County,the foregoing agreement with the City of Durham was signed in its corporate name by its O'o,,r1gqQ County Manager,sealed with its corporate seal,and attested by its said County Clerk or Deputy County Clerk.`'I'his the /1-& day of Oc 66e - , 20 It ___-.A , 2-a) /.4cA`"o;, • OFFICIAL SEAL u p' , Notary Public,North Carolina Notary Public Vli' •i ORANGE COUNTY , . My commission expires: S 7 Z 1 0 1� : DAVID HUNT �^�' My Clommitaton Expires Approved as to form and legal sufficiency. L?E. ,„ C ty Attorney I MIIIIMMINIME MIIIMIIMIIIIII■II Please return this copy to the Cleric to the Board's 8 ..... office for permanent agenda file. /7 2-1-11T O.._ Attachment 2 FIRST AMENDMENT TO THE INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTY AND THE CITY OF DURHAM FOR CONSTRUCTION AND OPERATION OF WATER AND SEWER FACILITIES IN THE ENO ECONOMIC DEVELOPMENT ZONE OF ORANGE COUNTY The City of Durham, a North Carolina municipal corporation("Durham") and Orange County, a North Carolina political subdivision ("Orange") entered into an "Interlocal Agreement Between Orange County and the City of Durham for Construction and Operation of Water and Sewer Facilities in the Eno Economic Development Zone of Orange County" ("Original Agreement")on January 20, 2012. As a result of the November 2013 Draft Master Plan Report prepared by CDM Smith, Durham and Orange would like to amend the Original Agreement through this First Amendment to allow for additional time to study alternative design options. Through this First Amendment the Original Agreement is only modified as indicated below and the remaining portions of the Original Agreement shall remain in full force and effect. This First Amendment is dated, made, and entered into as of the.,3161-day of jatAkA0,//k , 2015. Paragraph 12 of the Original Agreement is modified as follows: 12. Duration. This agreement shall be perpetual,unless terminated earlier by mutual agreement. Nevertheless, this contract shall terminate if construction of the infrastructure has not begun by January 31, 2017. On such termination, all obligations that are still executory on both sides are discharged but any right based on prior breach or performance survives. The governing body of each party hereto has determined the duration provided in this paragraph to be reasonable. This amendment is made pursuant to Paragraph 14 of the Original Agreement. This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. This instrument has been pre-audited in amaana required by the Local Government Budget and Fiscal Control Act. /1 j, A--------- - yiiimam ,, .-rP,'•' IIMIM 114 - ill: 1 - ITrireCtOr Orange Financial Services Director Kcii *. "crrmana, mance a'Ka 9 CITY OF DURHAM ATTEST: - J6161r ,Nck, City Clerk Dwat.rxrt.Schreiber '01,11,0mko. City 'Deputy ei;y Cemis r*masi .City.Manager Type or print name person signing for the City: ACKNOWLEDGMENT BY CITY OF DURHAM Name of other party to the contract: Title of the contract: , a notary public, certify: (Type or print name of Notary Public) (1) personally appeared before me (Type or print name of City Clerk or Deputy City Clerk who attested) in Durham County,N. C. on this day; (2)I have personal knowledge of her identity; and(3) she acknowledged that by authority duly given and as the act of the City of Durham, the foregoing document was signed in its corporate name by its City Manager, sealed with its corporate seal, and attested by its said City Clerk or Deputy City Clerk. This the day of , 20 My commission expires: Notary Public 10 * ' *.ut ORANGE COUNTY ollt 14 5'1 71s ATTE - " A D onna aker Bonnie B. Hammersle Orange County Clerk County Manager ACKNOWLEDGEMENT OF ORANGE COUNTY NORTH CAROLINA COUNTY OF &R-A-14GE Gi& LFO 4-- I, a Notary Public in and for the aforesaid County and State certify that Donna S. Baker personally appeared before me this day and acknowledged that she is the County Clerk of Orange County, a North Carolina political subdivision, and that by authority duly given and as the act of the County, the foregoing agreement with the City of Durham was signed in its corporate name by the Orange County Manager, sealed with its corporate seal and attested by its said County Clerk or Deputy County Clerk, this the aPday orlan , 20/57 01 144 • Notary Pul ic dir My commission expires: _ bonna S. Lloyd A-M -011)/6— Notary Public ti Guilford County North Carolina M Commission Ex,ires Attachment 3 11 SECOND AMENDMENT TO THE INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTY AND THE CITY OF DURHAM FOR CONSTRUCTION AND OPERATIAON OF WATER AND SEWER FACILITIES IN THE ENO ECONOMIC DEVELOPMENT ZONE OF ORANGE COUNTY The City of Durham, a North Carolina municipal corporation ("Durham") and Orange County, a North Carolina political subdivision("Orange") entered into an "Interlocal Agreement Between Orange County and the City of Durham for Construction and Operation of Water and Sewer Facilities in the Eno Economic Development Zone of Orange County" ("Original Agreement") on January 20, 2012. The agreement was subsequently amended with the First Amendment in 2015, which extended the date for construction to begin in order to pursue alternative design options. The November 2013 Draft Master Plan Report prepared by CDM Smith has been updated as a result of additional studies of the area and the Final Master Plan Report was submitted in March 2016. Durham and Orange have contracted with CDM Smith to begin design and permitting for a proposed sewer extension project, but would like to amend the Original Agreement through this Second Amendment to allow for additional time to complete design,permitting and bidding and begin construction. Through this Second Amendment the Original Agreement is only modified as indicated below and the remaining portions of the Original Agreement shall remain in full force and effect. This Second Amendment is dated, made, and entered into as of the day of , 2016. Paragraph 12 of the Original Agreement is modified as follows: 12. Duration. This agreement shall be perpetual, unless terminated earlier by mutual agreement. Nevertheless, this contract shall terminate if construction of the infrastructure has not begun by June 30, 2018. On such termination, all obligations that are still executory on both sides are discharged but any right based on prior breach or performance survives. The governing body of each party hereto has determined the duration provided in this paragraph to be reasonable. This amendment is made pursuant to Paragraph 14 of the Original Agreement. This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Durham Finance Director Orange Financial Services Director 12 CITY OF DURHAM ATTEST: By: City Clerk City Manager Type or print name person signing for the City: ACKNOWLEDGMENT BY CITY OF DURHAM Name of other party to the contract: Title of the contract: I, , a notary public, certify: (Type or print name of Notary Public) (1) personally appeared before me (Type or print name of City Clerk or Deputy City Clerk who attested) in Durham County,N. C. on this day; (2) I have personal knowledge of her identity; and(3) she acknowledged that by authority duly given and as the act of the City of Durham, the foregoing document was signed in its corporate name by its City Manager, sealed with its corporate seal, and attested by its said City Clerk or Deputy City Clerk. This the day of , 20 . My commission expires: 13 Notary Public ORANGE COUNTY ATTEST: By: Donna Baker Bonnie B. Hammersley Orange County Clerk County Manager ACKNOWLEDGEMENT OF ORANGE COUNTY NORTH CAROLINA COUNTY OF ORANGE I, a Notary Public in and for the aforesaid County and State certify that Donna S. Baker personally appeared before me this day and acknowledged that she is the County Clerk of Orange County, a North Carolina political subdivision, and that by authority duly given and as the act of the County, the foregoing agreement with the City of Durham was signed in its corporate name by the Orange County Manager, sealed with its corporate seal and attested by its said County Clerk or Deputy County Clerk, this the day of , 20 . Notary Public My commission expires: Attachment 4 PIPE 3 ' Byrd M a PIPE 2 0 n 3 P i ' • r �' 7 I . PIP � ;;� r __ ►• Legend All i Proposed Gravity Sewer' Existing Gravity Sewer "`"s* v'Wll b6rbug ® Existing Sewer Manhole N .: ° : -__--`sue°"-.. • N Parcel Boundary W � E I-IIIISbOPOUgr1 - ,' •.' ®;' x�x . Old I L j CountyBoundary Feet FIGURE 1: PROPOSED GRAVITY SEWER 200 0 200 400 '_ S : \12_Engineering\Eno EDD\Plans&Exhibits\