HomeMy WebLinkAboutAgenda - 05-13-1985 • — COLEMAN, BERNHOLZ, DICKERSON,
BERNHOLZ, GLEDHILL & HARGRAVE
ATTORNEYS AT LAW
110 CH1URTON STREET •
HILLSBOROUGH,N.C.27278
• 919-732-2196
919-942'8300 May 13, 1985 —
CHAPEL HILL OFFICE •
SUITE 20.FRANKLIN BUILDING
137 E.FRANELIN STREET
CHAPEL HILL,N.C.27514
919 929 715I •
ALONZO li.COLEMAN,JR.
STEVEN A.BERNHOLZ Donald Will.hoit, Chair
DONALD R.DICKERSON Moses Carey
ROGER B.BERNHOLZ
GEOFFREY E.GLEDHILL Ben Lloyd
DOUGLAS HARGRAVE
MARTIN j.RERNHOU Shirl Marshall .
RICHARD J.SNIDER,JR. Norm an Walker
JANE a do LISSOVOT
0.NICHOLAS HERMAN Orange County Offices
LYNN A.ANDREWS
• 106 E. Margaret Lane
01 Countsel Hillsborough, North Carolina 27278
BONNER D.SAWYER
(19C2-1972)
Re: Efland Area Sewer Project
Dear Board Members:
•
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I have been asked to review the County's legal
responsibility to construct a sewer collection and distribution
system from Hillsborough west generally in the Efiand area in the
face of new engineering estimates indicating the project as
•
originally designed will cost approximately $2 million compared to
the $1.2 million originally estimated. Specifically the project in
question is what is known as Phase I of the John R. McAdams
Company Preliminary Report, Fifth Edition dated April 5, 1984,
last revised August 7, 1984. [Hereinafter called Phase I]
A sewer easement and agreement has been circulated among
the owners of residences and businesses in Phase I. Apparently
19]. such owners have executed the sewer agreement indicating
their willingness to connect to the sewer system. Article IIA of
the agreement states that the "County agrees, subject to the terms
and conditions of the resolution of the County Board of
Commissioners adopted November 20, 3984, to construct and operate
a sewer collection and treatment system which will serve the
property of Owner/User described in Attachment A." Article IIF,
however, provides:
Owner/User understands that he/she or they are
entering into this agreement with County to induce County
to construct and operate the sewer collection and treatment
system which is the basis for this agreement and that the
system will in all likelihood only be constructed and
operated by County if at least 179 persons, firms or
corporations located in Phase I of the Project Area as
defined in Attachment B apply for, by entering into this
agreement with the County, connection to and sewer service
. ,
Board of Commissioners Page Two May 13, 3985
for existing dwellings and businesses during an initial
application period established by the County Board of —
Commissioners. In the event the system is not constructed
Owner/User shall not be obligated to pay any charges and
this agreement is in all respects null and void.
It is fairly clear then that the County's obligation to
construct Phase I of the .project is contingent on the terms of the
resolution adopted by the Board on November 20, 1984. If this
project is undertaken by the County it's responsibility is to
• construct all of Phase I . However, there is no timetable
established in the contract or in the resolution for its
construction. The County can therefore, for budget reasons,
establish a timetable to construct Phase I which permits its
construction as funding becomes available. This would be done
by regulation or ordinance as described in Article 11A and
according to an engineering plan to service all of Phase I.
• On the other hand, it is equally clear from the resolution
adopted by the Board on November 20, 1984, that the County has
agreed to appropriate $136,000.00 to the Orange County Utility
Enterprise Fund, $15,000.00 to the Town of Hillsborough for tap
• fees, and to issue its net debt reduction general obligation bonds
in the amount of $200,000.00 to repay a $200,000.00 loan from the
Farmer's Home Administration. This is the extent of the County's
financial obligation for the capital portion in this project. If
the project cannot be built for that amount of County funding then
it need not be built at all. If it is not built at all then those
signing contracts "shall not be obligated to pay any charges and
(the) agreement is in all respects null and void." Article IIF of
the Agreement.
The County then has two options. The first is to terminate
this project altogether because it cannot be built within budget.
If that is done then of course none of the sewer easement and
agreements presently executed by the property owners in Phase
- are binding on them. Essentially then the County will be without
• commitments if it should elect to undertake a different project:'
one within budget. Second, the County can undertake to construct
and operate Phase I of the project by establishing a timetable to
do so, an engineering plan to do so and a financing plan to do
so. In that event the sewer easement and agreements will
continue to be valid.
Very truly yours,
Geoffrey E. Gledhill
Ken Thompson
Orange County Manager
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Orange County Board of Commissioners
RESOLUTION
WHEREAS the Efland-Cheeks Elementary School, one of the schools
in the Orange County School System, has experienced
and continues to experience serious problems with its
wastewater treatment facilities in that those facilities
have failed in the past and now, although functioning,
are not doing so properly; and
WHEREAS the improperly functioning wastewater treatment
facilities are discharging incompletely treated sewage
into McGowan Creek, a stream that is part of the Upper
Eno watershed with a II-A nutrient sensitive-
classification by the State; and
WHEREAS incompletely or poorly treated sewage is also entering
McGowan Creek and other streams that are part of• the
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Upper Eno watershed as the result of malfunctioning or
non-functioning septic tanks in the Efland Estates
I >.
Subdivision and other areas in the watershed; and
WHEREAS the cause of the improperly functioning wastewater
systems is the pervasiveness of soil types in this
region of Orange County which do not provide a
geologically suitable medium for subsurface wastewater
treatment systems; and
WHEREAS the Upper Eno watershed provides the raw water supply
for Corporation Lake, the source of raw water for the
Orange-Alamance water system and for Lake Ben
•
Johnson, the source of raw water for the Hillsborough
town water system which in turn is a source of treated
water for the Orange Water and Sewer Authority, in
times of drought;.'and
• WHEREAS all of the above has created and continues to create a
health hazard that affects a substantial number of the
people of Orange County; and
WHEREAS on September 13, 1984 the Board of Commissioners,
recognizing the risk to the health, safety and welfare
of the people of Orange County affected by the
conditions stated above, found that an emergency
existed which warranted the issuance by Orange County
of net debt reduction, general obligation bonds in
connection with and for the purpose of repaying a
?_n $200,000.00 loan from the Farmers Home Administration
which loan has been approved i n
pp principle by FMHA
along with a grant to Orange County in the amount of
pia
$589,300.00 for the construction by Orange County of a
sewer collection and treatment system to serve the area
of Orange County identified as the principal source of•
the risk to the health, safety and welfare of the people
of the County; and
WHEREAS the Board of Commissioners now has agreed on the
conditions under which the sewer collection and
distribution system will be constructed.
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IT IS RESOLVED THAT: `
1. Orange County will construct a sewer collection and
treatment system [Hereinafter called the System) to
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serve existing dwellings and businesses within
Phase I of the Project Engineer' s Preliminary
Report, 5th Edition dated April 5, 1984, last •
revised August 7, 1984. [Hereinafter called Phase
I of the Project Areal
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2. Orange County will appropriate $136,000 to the
Orange County Utility Enterprise Fund. The
principal plus interest at the interest rate charged
on delinquent ad valorem taxes shall be repaid
from that fund to the Orange County General Fund
by the assessment of tap fees of $600 per
residential equivalent connection.
3. Each person, firm or corporation connecting to the
system, other than those initially connected from
among those intially applying for connection, .shall
pay a $600 per residential equivalent tap fee to the
Enterprise Fund.
4. Those persons, firms or corporations initially
connecting, from those initially applying for
connection, shall be exempt from the $600 tap fee.
The Board shall establish by Resolution deadlines
for initial application and initial connection.
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5. The Enterprise Fund shall be perpetual in
duration. Once the $136,000 plus interest
appropriated by Orange County is repaid, the Fund
shall be used ,as deemed appropriate by the Board
for further utility needs.
6. A tap fee of $10,000 shall be paid to the Town of
Hillsborough by Orange County for the connection of
the first 212 existing dwellings and businesses
within Phase I of the Project Area. This $10,000.
tap fee shall be an appropriation by Orange County
to the System and shall not be recouped through
user fees or otherwise by Orange County. Those
persons, firms or corporations connecting to the
- - system after the first 212 connections shall pay tap
fees to Orange County and the Town of Hillsborough
in a amount established by policies and procedures
of the County and the Town of Hillsborough from
time to time.
7. A tap fee of $5,000 shall be paid to the Town of
Hillsborough by Orange County for the connection of
the EfIand Cheeks Elementary School to the system.
This appropriation shall not be recouped through
user fees or otherwise by Orange County.
8. The System will be undertaken and funded by
Orange County only if at least 179 persons, firms
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or corporations located in Phase I of the Project
we:
Area apply for connection to and sewer service for
existing dwellings and businesses during the
initial application period.
9. The operating expense portion of the System budget
shall be prepared on the basis of 233 initial
connections.
10. User rates shall be as established on the attached
rate schedule and may be revised from time to time
as determined by the Board.
11. Orange County will appropriate annually to the
operating revenues of the System operating budget
the difference between annual expenditures and
- •- revenues received from user fees, investment and
other income of the System.
AND WHEREAS the System Engineer has identified 14 parcels of land
improved with dwellings or businesses which are not
located within Phase I of the Project Area but which .,
are located adjacent to it and on Southern Avenue; and
•
WHEREAS it may be feasible to connect these parcels to the -
System within the System budget.
IT IS THEREFORE FURTHER RESOLVED THAT:
Provided the bid for the System, including construction
of the portion of the System necessary to serve these 14
parcels, which is accepted by Orange County is within
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the System budget,; the 14 parcels shall be added to
and considered to be part of Phase I of the Project
Area in all respects except as follows:
Priority shall be given to persons , firms or
corporations located within Phase I of the Project Area
•r I
without inclusion of the 14 parcels located adjacent to
it with respect to tap fees paid to the Town of
Hillsborough. If there are 212 applicants for
connection to the System within Phase I of the Project
Area without inclusion of the 14 parcels adjacent to it
which.apply during the initial application period, each
applicant from .among the 14 parcels shall pay tap fees
to the County and the Town of Hillsborough as
• determined by policies of the County and the Town.
Applications for connection from among the persons,
firms or corporations owning the 14 parcels shall be
treated on a first-made basis with respect to tap fees
to the County and the Town of Hillsborough in the
event there are more than 198 but less than 212
applicants for connection during the initial application
period from within Phase I of the Project Area without
inclusion of the 14 adjacent parcels.
This the nth day of NavonhPr, 1984•
•
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ESTIMATED RATE SCHEDULE
, EFLAND AREA-WESTERN ORANGE COUNTY _ —
SEWER SYSTEM
ESTIMATED ESTIMATED
LEER ESTIMATED NUMBER OF MONTHLY -
CATEGORY MONTHLY LBAGE CUSTOMERS WATER BILL
Residential 3,000 (Min.) ' 116 15.20 .
Residential 4,000 13 19.60
Residential 5,000 12 24.00
Residential 6,000 11 28.40
Residential 7,000 8 32.80
Residential 8,000 6 37.20
Residential 9,000 3 41.60
Residential 10,000 1 46.00
,
Residential 11,000 1 50.40
,
Residential 12,000 2 54.80
Commercial 13,000 2 59.20
Industrial 14,000 1 63.60
. Commercial 15,000 1 68.00
Commercial 20,000 1 90.00
Institutional 74,000 _ 1 328.00
. _
179
IUmn ipmr op vreodvepdaPrcaerlcsels 3,000 36 15.20
(Adjacen t-Southern
Avenue) 3,000 14 15.20
Unimproved Parcels.
(Adjacent-Southern _
Avenue) 3,000 4 15.20
54
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1 013 000 233
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NORTH CAROLINA '
SEWER EASEMENT
ORANGE COUNTY AND AGREEMENT
f
This Easement/Agreement, made and entered into this
n4.
xrs; day of • , 19 _ by and between
hereinafter called Owner/User,. and Orange County, 106 Margaret
Lane, Hillsborough, North Carolina 27278, hereinafter called the
County;
4.y
WITNESS ETH:
Article I. Easement. In consideration of the promise of the
County to permit Owner/User to connect to the County sewer system to
serve the property of Owner/User and in further consideration of the
promise of the County to maintain said sewer system and apparatus
from and after completion of construction and installation as
hereinafter specified, Owner/User, and his/her or their successors
and assigns, hereby give, grant, and convey unto the County, and
its successors and assigns, a perpetual right and easement over,
upon and through the property or properties described in Attachment
A, attached and incorporated herein, to maintain one or more
underground sewer lines and apparatus over, upon and through the
property described in Attachment A.
This easement includes the perpetual right and easement unto '
the County to go upon said lands whenever the same is reasonably
necessary for the purpose of inspecting, maintaining and repairing
said lines and apparatus; provided, however, that in repairing said
•
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lines, the County shall remove all surplus earth, shall make level
the surface of the ground above said lines and apparatus, and shall
interfere as little as is reasonably possible with any plants, fences,
or other improvements upon the property or properties. Owner/User,
- and his/her or their successors and assigns shall, from time to time,
at the request of County, execute, acknowledge and deliver to County .
any and all future instruments which may reasonably be required to
give full force and effect to the provisions of this Agreement.
To have and to hold said rights and easements to the County
and its successors, in perpetuity.
Article II. Sewer Connection. .
A. County agrees, subject to the terms and conditions of the
Resolution of the County Board of Commissioners adopted November
20, 1984, to construct and operate a sewer collection and treatment I'
system which will serve the property of Owner/User described in
Attachment A. A copy of the November 20, 1984 Resolution of the
County Board of Commissioners is attached, labeled Attachment B,
and incorporated herein. The construction and operation of the
sewer collection and treatment system will further be subject to and
performed in compliance with all regulations and ordinances which'
the County has now adopted and may adopt from time to time. - •
B. Owner/User agrees to install and maintain at his/her or
their own expense a service line from the sewer collection and
treatment system to the dwelling or place of use of Owner/User and
that he/she or they will commence use of the sewer collection and
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treatment system when it is placed in operation. An estimate of the
cost to Owner/User to install the service line to his/her or their
dwelling or place of use is stated in Attachment C which is
incorporated herein.
C. Owner/User agrees to pay all charges made by County for
connection to the sewer collection and treatment system and for the
operation of that system -according to duly enacted rate schedules of
County and as they may be changed from time to time. Owner/User
further agrees to pay all charges made whether or not he/she or
they actually connect to the system once the system is placed in
operation by County. A schedule of initial estimated charges for the
operation of the system are contained in Attachment B. County is
•
. not bound to operate the system at these estimated rate levels and
Owner/User agrees and understands that the actual charges may
vary from the estimates but that Owner/User nevertheless agrees to
pay the actual charges made.
D. Owner/User agrees to comply with all ordinances,
regulations and rules of County related to the sewer collection and
treatment system.
E. Owner/User hereby subjects the property described in--
Attachment A to a lien to secure the payment to County of all
charges made by County for connection to the sewer collection and
treatment system and for the operation of the system. Owner/User
hereby further agrees that his/her or their obligation to connect to
the system and to pay all charges made for connection and operation
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is one which may be specifically enforced by County in a civil
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action brought by County against Owner/User for such enforcement.
F. Owner/User understands that he/she or they are entering
into this agreement with County. to induce County to construct and
_operate the sewer collection and treatment system which is the basis
for this agreement and that the system will in all likelihood only be
constructed and operated by County if at least 179 persons, firms or
corporations located in Phase I of the Project Area as defined in
Attachment B apply for, by entering into this agreement with the
County, connection to and sewer service for existing dwellings and
businesses during an initial application period established by the
County Board of Commissioners. In the event the system is not
' constructed Owner/User shall not be obligated to pay any charges
and this agreement is in all respects null and void.
IN WITNESS WHEREOF, Owner/User has hereunto set his/her or
their hands and seals; and, if corporate, has caused this document
to be executed in its corporate name by its President, witnessed by
its Secretary, and its corporate seal hereunto affixed all by
authority of its Board of Directors duly given; and the County has
caused this Easement/Agreement to be executed in its name by the
Chairman of its Board of Commissioners, attested to by its_Clerk,
and its official seal to be hereunto affixed, all by authority duly :.
given by the Board of County Commissioners.
•
(SEAL) (SEAL)
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(SEAL) (SEAL)
Witness
ATTESTED TO:
NAME OF CORPORATION
BY:
SECRETARY • BY:
PRESIDENT
ATTESTED TO: ORANGE COUNTY
BY: BY:
CLERK CHAIR, BOARD OF COUNTY
COMMISSIONERS
- NORTH CAROLINA
ORANGE COUNTY
I , the undersigned Notary Public, certify that on the
day of , 19__, before me personally came
. _
and
acknowledged the due execution of the foregoing Easement/Agreement.
Witness my hand and notarial seal this day of
19
NOTARY PUBLIC
My commission expires:
NORTH CAROLINA
ORANGE COUNTY
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, a Notary Public for said County and
. —
State, do hereby certify that personally
appeared before me this day, and being duly sworn, stated that in
his/her presence • acknowledged the execution of
the foregoing Easement/Agreement.
Witness my hand and notarial seal this day of
, 19
NOTARY PUBLIC
My commission expires: _
NORTH CAROLINA
•
ORANGE COUNTY
I , the undersigned Notary Public, certify that on the
day of , 19_, before me personally came
b me personally known, who being by me
duly sworn, did depose and say that he/she is Secretary of
, the corporation described in the foregoing
Easement/Agreement; that by authority duly given and as the act of
said corporation, the foregoing Easement/Agreement was signed in its
name by its President, sealed with its corporate seal and attested by
said Secretary.
Witness by hand and official seal.
NOTARY PUBLIC
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•
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My commission expires:
NORTH CAROLINA
ORANGE COUNTY
I , , a Notary Public for the above
County and State, do hereby certify that on the day of
, 19 , before me personally came Beverly Blythe to me
personally known, who being by me duly sworn, did depose and say
that she is Clerk to the Board of Commissioners of Orange County, a
body politic and corporate described in the foregoing
Easement/Agreement; that by authority duly given and as the act of
said county, the foregoing Easement/Agreement was signed in its
name by the Chair of its Board of Commissioners ,
, sealed with its seal and attested by said
Clerk.
Witness my hand and official seal.
NOTARY PUBLIC .
My commission expires:
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WASTEWATER COLLECTION AND PURCHASE CONTRACT
This Contract for the Sale and Purchase of Wastewater Collection and
Treatment Services is entered into as of the day of
19 r between the TOWN OF HILLSBOROUGH, NOM CAROLINA hereinafter referred
to as the "TOM" and ORANGE COUNTY, NORTH CAROLINA hereinafter
referred to as the "COUNTY";
=PEAS, it is the intent of the County to construct a wastewater
collection system to serve an area of Cheeks Township, Orange County, North
Carolina to address health problems related to the failure of septic tanks and
other individual and package subsurface sewage treatment systems; and 1
• WHEREAS, the County neither owns nor - operates a wastewater treatment
facility; and
WHEREAS, the Town operates a wastewater collection system and wastewater
treatment facility with the capacity to receive and treat wastewater generated
by the wastewater collection system proposed to serve an area of Cheeks
Township; and
WHEREAS, the Town is willing to make its wastewater collection system and
wastewater treatment facility available to receive and treat wastewater
•generated by the County's wastewater collection system, but only upon the
conditions and subject to the limits hereinafter set forth;
ECW, THEREFORE, in consideration of the foregoing and the mutual
agreements hereinafter set forth, it is agreed as follows:
1. The Town agrees to allow the County, at County expense, to tie its
wastewater collection system to the TOwn's wastewater collection system at a
point to be determined by the Town and County at the time of approval by the
Town and County of the plans and specifications of the County system to be
prepared by Orange County. Such connection may only be wade in strict
accordance with said plans and specifications and only after said plans and
specifications have been approved in advance in writing by the Tbwn Engineer
and Town Superintendent of Utilities in order to insure its compatibility with
the Town's wastewater collection.and treatment facilities and policies.
2. The County agrees to pay the Town $15,000.00 as a blanket connection
(tap) fee for the privilege of connecting the Efland-Cheeks Elementary School
wastewater facility and the County's initial 212 customers to the Town's .
system. The customer list and map will_be provided to the Town not later than
the 1st day of July, 1985. Five thousand dollars of the $15,000 is for the
cost of tap-on of the Efland Cheeks Elementary School. The above $15,000
connection fee shall be paid before any wastewater is permitted to flow through
the meter.
3. The Town agrees to treat, at the rates herein prescribed, up to
55,000 gallons of the County system's wastewater per day, which is the
equivalent of the wastewater generated by said school and the initial 212
customers of the County's wastewater collection system, and to treat up to an
additional 325,000 gallons per day for additional customers in the future.
4. No customer shall be allowed to connect to the County system unless
and until such customer's proposed discharge has been found acceptable by both
the Town Water Superintendent and County. Approval shall be predicated on (1)
the quality of the effluent of the potential user being compatible with the
Town's MITES discharge permit, (2) compliance with the Town's ordinance, rules,
and regulations concerning pretreatment of industrial wastewater, and (3) all
County (subdivision, zoning, erosion, building, etc.) and State (DOT, etc.) .
• permits having been properly granted. Under no circumstances will the County
permit the discharge of septic sewage into its system.
5. a. After the first 212 customers above specified, each additional
approved customer shall pay a $400 Town tap-on fee. Customers other than those
initially connected from among those initially applying for connection shall
pay a $600 County tap-on fee. Excepted from the 212 rule and waived from
paying the tap fees shall be the residents of Orange Beights who apply for
connection within the County's established application period for the area.
While the 1984 Hfland Sewer Preliminary Engineering Report made no provision
for service to the area a May 6, 1985 revised report finds that service can be
provided without materially affecting project cost:
b. If and when such areas as Orange Heights are annexed into the
Town of Billdborough no County tap fee will be charged as the Town will bear
the stub out cost. Prior to any such annexation, the County and Town tap fees
shall be charged to users connecting to the County system, unless expressly
waived. Both County and Town tap fees shall be collected by the County with -
the %own portion remitted to the Town as collected.
c. The County and Town reserve the right to increase tap fees as
necessary.
6. The County shall install a meter at the point where the County's
system is connected to the Hillsborough Sewer System for the purpose of
measuring the flow of wastewater from the County's system into the 'Down's
system.
7. The County agrees to pay the Town each =nth the sum of $1.11 per
thousand gallons of wastewater passing through said meter.
8. The Town reserves the right to adjust the rate per 1,000 gallons
charged to the County whenever the Town adjusts its rates charged to its other
customers.
9. The wastewater collection system constructed by the County shall be
the property of the County. The Town shall not allow any connection to the
Town's system which shall have the effect of circumventing or competing with
. this agreement. It shall be the responsibility of the County to maintain its
wastewater collection and transport system and perform all customer billing and
collections. This does not preclude the County from contracting maintenance
and/or billing functions.
10. Any failure of the Town's wastewater collection system or wastewater
treatment facility which impedes the flow of wastewater from the County's
wastewater collection system shall be remedied by the Town with all possible
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dispatch. In the event of an extended period of malfunction of the 'Dwn's
wastewater collection system, the County's customers shall be required to
reduce their discharge only in the same ratio or proporation as that required
of the Town's other customers.
11. The construction of the wastewater collection and treatment system
by the County is being financed by a loan made, or insured by, and grant from
the United States Department of Agriculture. No provision set forth in this.
Contract shall be binding upon either party unless and until all terms and
provisions hereof have been approved in writing by the N.C. State Director of
• the Farmers Home Administration U.S.D.A.
IN WITNESS WHEREOF, the parties hereto, acting under authority of their
respective governing bodies, have caused this contract to be duly executed in
duplicate originals, a copy of which is retained by each party.
ATTEST:
CLERK, ORANGE COUNTY BOARD OF DON WILLHOIT, CHAIRMAN
COMMISSIONERS ORANGE COUNTY BOARD OF COMMISSIONERS
ATTEST:
CLERK, TCWN OF HILLSBOROUGH FRANK SHEFFIELD, MAYOR
WAN OF HILLSBOROUGH
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This contract is'approved on behalf of the Farmer's Home Administration this
the day of , 19
TITLE:, STATE DIRECBOR