Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
Agenda - 09-06-1994-IX-C
1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 6, 1994 Action Agenda Item # XX- SUBJECT: Piney Mountain Grant Funding Proposal DEPARTMENT: County Manager PUBLIC HEARING: Yes X__-No ATTACHMENT(S) : INFORMATION CONTACT: County Attorney (919) 732-2196 Document #3 : Agreement for County Engineer Ext. 2300 Providing Administrative and Technical Services. . . . TELEPHONE NUMBERS: Hillsborough - 732-8181 Document #4 : Agreement Providing Durham - 688-7331 for the Ownership, Construction Mebane - 227-2031 and Operation. . . . Chapel Hill - 967-9251/968-4501 Document #5: Agreement Approving Extension of and Restrictions Regarding Connections. . . . PURPOSE: To provide the BOCC - for its review and approval - revised agreements outlining the terms and conditions whereby the County, for purposes of securing a state construction grant for the extension of municipal utility service to the Piney Mountain subdivision, agrees to temporarily own and cause to have constructed - by means of a contract with OWASA - the main Piney Mountain sewer pump station and the force main connecting the Piney Mountain and Durham systems. BACKGROUND: Since early 1994, Orange County has been involved in an effort to obtain grant funding to pay for the construction of the facilities necessary to extend municipal sewer service from the City of Durham to the Piney Mountain subdivision. Meeting the conditions set forth by the grant process and adhering to sound utility management and environmental protection practices have required that the County develop a number of contracts or agreements with various parties involved in the process. These agreements, which in effect bind together the County, OWASA and the Piney Mountain home owners, have been designed to incorporate strategies for system financing, construction, management, operation, etc. Although these agreements have never been officially signed and executed by any of the parties concerned, they have existed in nearly final form since July. 2 These existing agreements were developed under an assumption that one of two potential scenarios would be in effect. In the first scenario, it was assumed that: a) the project would funded through a combination of home owner financing and grant funding; b) the County would own the entire system, including the collection and individual step systems, as long as required by grant conditions, and would turn ownership over to OWASA as soon as those conditions were met; and c) OWASA would provide all the services necessary to meet system operational and management requirements. In the second scenario, it was assumed that: a) grant funding would not be available and all funding would come directly from the home owners; b) the County would not be involved in any manner in the ownership, operation or management of any part of the system; c) system construction would be the responsibility of the home owners although under the supervision of OWASA, which would take over system ownership on completion of construction; and d) the agreements that were developed specifically to provide the conditions necessary to meet grant funding requirements would become null and void. At its July meeting, the NC Environmental Management Commission (EMC) declined to award the grant sought by Orange County to fund the Piney Mountain project. County and OWASA staff assumed that the denial of grant funding terminated the County' s role in ownership and management of the Piney Mountain system. However, during the same time frame, the NC General Assembly was enacting new legislation - HB 1628 - enabling (but not requiring) the EMC to create a new procedure for providing grant funding to help replace the waste treatment systems - including Piney Mountain - abandoned by Northstate Utilities. The new legislation included a grant eligibility requirement that systems be owned and operated by a county, a county water and sewer district or a county sewer district. Insofar as any effort to obtain grant funds for the Piney Mountain was concerned, the grant eligibility requirements related to system ownership and operation remained essentially unchanged by the new legislation. At the present time, very little is known about details of the new process that the EMC may develop and employ to evaluate grant fund applications from the former Northstate waste treatment systems. The EMC is scheduled to discuss, revise and adopt temporary rules (drafted by DEM staff) for the process at its September 8th meeting. DEM staff has recommended that the EMC set a September 30th deadline for all grant funding applications to be evaluated under the new rules. There is currently no indication as to when grant funds could be made available, although HB 1628 specifies that funds must be awarded prior to 31 December 1994. Likewise, there is no certainty that the EMC will follow DEM recommendations or even participate in any process to provide funding for the Northstate systems. 3 At the August 23rd meeting of the BOCC, staff updated the Commissioners on the new and extended grant funding opportunities for the Piney Mountain project. Staff advised the BOCC that the Piney Mountain home owners were seeking an extension of the County's commitment to meet grant requirements involving system ownership and involvement in the construction process. Commissioners were also apprised that DEM staff have indicated: 1) the Piney Mountain project will retain its eligibility for , grant funded reimbursement until March 1995 when the next grant application cycle begins; and 2) funding eligibility for any project is retained even when construction is begun without grant approval if the project is ultimately approved for funding by the EMC and if all grant requirements are met. DEM staff have also informed County staff that, regardless of the EMC's actions related to developing a new application process and evaluation criteria, the County need not expend any additional effort to submit a new grant application. The County's March application can serve to meet the September 30th application deadline. At its August 23rd meeting, the BOCC indicated its willingness to extend the County's commitment to seek grant funding under one condition; the County must be able to identify and minimize any potential liability accruing from its role in the ownership and construction of the new Piney Mountain system. County staff have determined that the County's potential exposure to liabilities associated with the Piney Mountain project lies in two areas: a) funding construction costs without certainty of grant funding; and b) owning any portion of the existing waste treatment system, including the individual step systems. To address these potential exposures, the County Attorney has revised the existing Piney Mountain agreements referenced above (see attached Documents #3, #4 and #5) . The revised agreements require that: 1) the home owners deposit with the County all funding necessary for system construction regardless of the grant application outcome and prior to award of a construction contract; and 2) the County's participation in the project is to be limited to ownership and construction of the new central pumping station and force main. All mention of County responsibility for owning, constructing, operating or managing the individual step systems and the collection system has been deleted. County staff do still have serious reservations about the reliability of the existing collection and step systems. To address these concerns, the County Attorney has inserted conditions within the agreements to require that the home owners repair or replace the existing step and collection systems as necessary to meet standards that are mutually acceptable to the County and to OWASA. 4 RECOMMENDATION: The administration recommends that the Board: a) approve the agreements as submitted; b) authorize the Chair to sign the agreements when finalized; and c) authorize the Chair, County Manager and County Attorney to devise modifications to the agreements as necessary to secure accord among the other parties to the agreements, with the proviso that the intent of the agreements will not be modified without the approval of the BOCC. Document #3 5 Draft: 5/11/94 NORTH CAROLINA 5/17/94 6/7/94 ORANGE COUNTY 6/23/94 %MU AGREEMENT FOR PROVIDING ADMINISTRATIVE AND TECHNICAL SERVICES AND ASSISTANCE TO ORANGE COUNTY BY ORANGE WATER AND SEWER AUTHORITY FOR THE DESIGN, PERMITTING, CONSTRUCTION, ADMINISTRATION, OPERATION AND MAINTENANCE OF THE PINEY MOUNTAIN SUBDIVISION WASTEWATER SYSTEM THIS AGREEMENT is made and entered into this the day of , 1994, by and between Orange Water and Sewer Authority, a public body politic and corporate, organized and existing under the provisions of Chapter 162A of the North Carolina General Statutes , with its principal office in Carrboro, North Carolina, hereinafter referred to as "OWASA, " and Orange County, a body politic and corporate and a political subdivision of the State of North Carolina, hereinafter referred to as the "COUNTY. " WHEREAS, OWASA provides wastewater collection, pumping, treatment and disposal services for the Chapel Hill-Carrboro community and surrounding area; and WHEREAS, the COUNTY has applied to the State of North Carolina for a grant through the North Carolina Clean Water Revolving Loan and Grant Act of 1987 (hereafter "State Grant" ) for the design, construction and payment of fees associated with repair of the existing Piney Mountain Subdivision wastewater force main collection system, including individual home ceptic tank effluent pump syetemc (hereafter "STEP syctems" ) , and the development of a new wastewater pumping facility and force main connecting the Subdivision collection system (hereafter all 1 6 together referred to as "the Subdivision wastewater system" ) with the wastewater collection system owned and operated by the City of Durham; and WHEREAS, the COUNTY, under the conditions of the State Grant, must own the Subdivision wastewater system; and WHEREAS, the COUNTY, under the conditions of the State Grant, must provide for the design, pe/mitting, construction, administration, operation and maintenance of the Subdivision wastewater system; and WHEREAS, the COUNTY and OWASA are authorized under North Carolina law to enter into agreements for the provision of wastewater facilities and services and to enter into a so-called Interlocal Agreement under Article 20 of Chapter 160A of the North Carolina General Statutes to share or allocate responsibilities of each in order to provide wastewater facilities and services to the Subdivision; and WHEREAS, the COUNTY has requested that OWASA provide all of the administrative and technical services and assistance necessary to design, permit, construct, administer, operate and maintain the Subdivision wastewater system; and WHEREAS, OWASA is willing to provide these requested services to the COUNTY and the residents of the Subdivision under the terms set out herein. NOW, THEREFORE, the governing bodies of the parties hereto have determined that the public health and welfare will be served and benefited by their cooperation, mutual undertakings and 2 7 agreement as hereinafter set out; and in consideration of the benefits, assistance and mutual obligations to be received and performed by the parties hereunder, the COUNTY and OWASA, for themselves, their successors and assigns, do mutually agree as follows : 1 . OWASA shall provide administrative and technical services and assistance as regards to the design, permitting, construction, administration and operation and maintenance of the Subdivision wastewater system. 2 . OWASA shall charge the COUNTY and the residents of the Subdivision for its services under this Agreement, which charge shall be, with respect to the design, permitting and construction of the wastewater system, OWASA's actual direct and indirect costs of providing such service including, but not limited to, consultants ' fees, legal and administrative costs, capital facilities fees and construction contract costs . OWASA operation services (hereafter referred to as "utility services " ) shall be billed directly to the residents of the Subdivision and shall be rates , fees and charges calculated by OWASA as those necessary to recover the direct and costs of the services provided, including reasonable reserves for maintenance and replacement of the facilities necessary to provide the services to the Subdivision, and a reasonable charge representing recovery of a share of the cost of OWASA's existing capital plant and facilities 04418#00#0444::::10000::::::WiliitibtlOOMOIMMOON iii.iiipeaNZ414A. The rates and charges may be different from 3 8 those charged customers of OWASA's existing sewer system, and shall include provisions for recovery of such agotegglimuntott costs as may be incurred and paid to the City of Durham for its acceptance and treatment of the wastewater from the Subdivision. 3 . Through the completion of construction and the formal acceptance by the County of the Subdivision wastewater system as complete, OWASA shall render a bill by monthly invoice to the COUNTY as service is provided by OWASA and shall provide to the COUNTY bills as frequently as required by the payment schedule specified under construction and consulting service contracts for services other than those provided by OWASA. The COUNTY shall make payment to OWASA after construction contract and other invoices are provided to it. Utility service billings will be made directly to the residents of the Subdivision and shall contain such terms and conditions as are customary and as are deemed fiscally prudent by OWASA. The parties agree that the Subdivision wastewater system will not be accepted by the COUNTY until 0430004XMACE61040040:1C4gliiiit#M#04***C**0 OVNUMili:WIE:g1104 such times. as 01#0644001:004040** WOW it and each of its component parts has been approved and permitted, whichever ic applicable, by the following: OWASA , each agency or division of the State of North Carolina with a permitting or financial interest in the systemit the COUNTYV County; the Orange County Health Department, and COMM:titiiiiStOW400-4300:04~4100#1iiMPOrMii::::Mri:00 Subdivision wastewater 4 9 #000k gngiiiii4VV.0404119:001:i1:4.#0000140. giTABP0041046:00#491#041:*00t#0:# 01414iNtAggti:iiigOVP:Viliiii:NNithiMP#0001:iii.:00§41MAPPRONOWOoltaii44.4 00#4000.11*-YeghOlgM10:::::i101'0001i#1:00r:gtiggito§ktguiftwomminv dieditattigmmmtwoottiota 4. This Agreement shall continue until a reasonable amount of time followingZiamAm#,####•*.ogicithogAmigniBilotwitiniiiiiaga the happening of the first of the following events : (i) OWASA's sewer system is extended to the Subdivision; (ii) the COUNTY either withdraws itc State Crant application or the COUNTY's State Crant application ic denied; (III) a minimum of one ( 1) year has elapsed following the 4.:0100#0,00::ilil*SowtOpponreliMiii:t.ffitiSg#094.070,0:::***gf**g§gli:Ay0.0.3 State Crant project by the Stato. Within a reasonable amount of timemtg#mgc10530###010#gfighmougmtingogftmomomg* following the happening of the first of the events described in (i) , (ii) and (iii ) above, the COUNTY agrees to convey to OWASA and OWASA agrees to accept from the COUNTY all of the COUNTY's right, title and interest to the Subdivision wastewater systena, including tho STEP cyctcmc . 5 10 Any litigation arising out of this Agreement shall be determined in Orange County District or Superior Court. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed for and in their place and stead by their duly authorized undersigned officers and agents , to be effective from and after the date first above written. ORANGE COUNTY ATTEST: By: COUNTY CLERK THIS INSTRUMENT HAS BEEN PREAUDITED IN THE MANNER REQUIRED BY THE LOCAL GOVERNMENT AND FISCAL CONTROL ACT: DATE FINANCE OFFICER ORANGE WATER AND SEWER AUTHORITY ATTEST: By: ASSISTANT SECRETARY THIS INSTRUMENT HAS BEEN PREAUDITED IN THE MANNER REQUIRED BY THE LOCAL GOVERNMENT AND FISCAL CONTROL ACT: DATE FINANCE OFFICER 6 Document #4 11 Draft: 5/11/94 NORTH CAROLINA 5/17/94 6/7/94 ORANGE COUNTY 6/23/94 9/6/94 AGREEMENT PROVIDING FOR THE OWNERSHIP, CONSTRUCTION AND OPERATION OF THE PINEY MOUNTAIN SUBDIVISION WASTEWATER SYSTEM THIS AGREEMENT is made and entered into this the day of , 1994 , by and between Orange Water and Sewer Authority, a public body politic and corporate, organized and existing under the provisions of Chapter 162A of the North Carolina General Statutes, with its principal office in Carrboro, North Carolina, hereinafter referred to as "OWASA, " Orange County, a body politic and corporate and a political subdivision of the State of North Carolina, hereinafter referred to as the "COUNTY" and the Piney Mountain Homeowners Association, a North Carolina not for profit corporation (being duly authorized to act and acting for and on behalf of the owners of lots in that subdivision, their grantees , successors and assigns) hereinafter referred to as the "ASSOCIATION. " WITNESSETH WHEREAS, on this date the parties to this Agreement have entered into an agreement which, in order to correct the failed wastewater collection and treatment system serving the Piney Mountain Subdivision (hereafter "the Subdivision" ) , authorizes the connection of the Subdivision wastewater system to the public sewer system of the City of Durham for purposes of treatment of the wastewater generated at the Subdivision; and 1 12 WHEREAS, OWASA and the City of Durham have entered into a written agreement in which the City of Durham has agreed to the connection of the Subdivision wastewater system to its public sewer system and in which, as between the City of Durham and OWASA, provides for OWASA owning, operating and maintaining the Subdivision wastewater system; and WHEREAS, by Resolutions adopted on March 28, 1994 and AttglIS 23;- 1994, the COUNTY authorized an application to the State of North Carolina for a grant through the North Carolina Clean Water Revolving Loan and Grant Act of 1987 (hereafter "State Grant" )7 by thc State; and WHEREAS, on this date the COUNTY and OWASA have entered into an agreement which provides for the design, construction and operation of the Subdivision wastewater system in the event the with the State Grant; and WHEREAS, there are certain matters related to the ownership, design, construction and operation of the Subdivision wastewater system and related to the State Grant not addressed in the agreements itemized above but which are essential to the undertaking by the parties of the $ubdivislon wastewater system • project contemplated herein. NOW, THEREFORE, the parties have agreed for themselves and for their successors and assigns : 2 13 1 . The ASSOCIATION covenants that it has authority to enter into this contract for itself and for the owners of each lot in the Subdivision, their grantees, successors and assigns . As used in this agreement hereafter, the term "ASSOCIATION" refers to the Piney Mountain Homeowners Association and the owners of each and every lot in the Subdivision. 2 . The ASSOCIATION covenants that it will pay to the COUNTY and to OWASA: ( 1) all costs and expenses, including the value of administrative and professional time expended by each, in the application for, administration of and the closeout of the State Grant; and, (2 ) all costs and expenses not covered by ( 1) expended by each in the design, bidding and contract award, construction, regulatory approval and permitting of the Subdivision wastewater system. The costs and expenses described in ( 1) and (2 ) are hereafter referred to collectively and sometimes individually as the project expense" or "project expenses . " In order to facilitate the covenant contained in this paragraph, the ASSOCIATION has deposited, or will upon demand by the COUNTY, deposit the sum of $ with the COUNTY for the payment of the costs and expenses described here. The parties acknowledge that the deposit amount is equal to the total project expense detelmined by estimates made in good faith. The ASSOCIATION further acknowledges its obligation to the COUNTY and OWASA for project expense that exceeds the estimate and to make further advances upon demand by the COUNTY to cover project expense that exceeds the project expense estimate. The ASSOCIATION further 3 14 acknowledges and agrees that its obligation to pay the project expense is absolute and not dependent on any other source of funds available to the COUNTY or OWASA to pay the project expense. 3 . The COUNTY agrees that it will maintain the money deposited with it in a designated project fund and will draw money from that fund payable to itself, OWASA and others as provided in this Agreement for project expenses . The COUNTY agrees to account to the ASSOCIATION for the funds deposited and agrees to apply grant funds received by it, in the event it is awarded a State Grant, to all grant eligible expenses of the project. The COUNTY further agrees to refund to the ASSOCIATION such sums as it has received from the ASSOCIATION that exceed the project expense after it has first applied grant funds received by it to grant eligible project expenses . 4 . The COUNTY shall be the owner of: ( 1) the Subdivision wastewater system, including the pump station and force main that convey wastewater from the Subdivision to the wastewater collection system of the City of Durham ;; and (2 ) the individual home septic tank effluent pump cyctcmc, including tankc, pumps and associated controls (hereafter "STEP cyctents" ) . The ASSOCIATION agrees to obtain and provide to the County on demand such indicia of ownership of the Subdivision wastewater system and the STEP syctcmc as requested by the COUNTY in the form of deeds, release deeds , subordination agreements, encroachment agreements, dedications , easements and bills of sale as determined reasonably necessary by the COUNTY. Provided/ however, the CGUNTY will become the owner of 4 15 OWASA. The COUNTY shall own the Subdivision wastewater system and the STEP cyctcmc until a reasonable amount of time following1ht .................. ice'» ''`> >;:.>:.»<:.::: ; ::;;,,,::»`:`-t ;,... :.> ;,:' ': ; ;»:;<::>:<;:.>. ::;;::`::»:'<`:::'.:,°':`': ..:._:.::::. <.:�OVAIt MO§ge 04#8**4 { S4 0dnt l#x r the happening of the first of the following events : (i) OWASA's sewer system is extended to the Subdivision; ( ii) the COUNTY either withdraws itc State Grant application e ... / - - - - - - - - (ill-) a minimum of one ( 1) year has elapsed following the State Crant nt rojcct by the State. ; tdi' 'isio . rastewate. system,.,.; Within a reasonable amount of timer; following the happening of the first of the events described in (i) , (ii) and above, the COUNTY agrees to convey to OWASA and OWASA agrees to accept from the COUNTY all of the COUNTY's right, title and interest to the Subdivision wastewater system::::, including the STEP cyctcros . 5 . thq `�h..,tht :..tW sy»themii :�t,. .3 :A>e:Etg:::©>Snxrid iiifl�:eeit ei d Qr t.:-The parties agree that the Subdivision wastewater system can only be properly repaired if repairs are made to some or all of the STEP systems in the u iv S bd' ision or ,,:;.;:<;:;;�:.:ffie o* gli m to are lopocedt and that Those 5 16 repairs Ota404§§Wt# are a not part of the project and the cost of those repairs is Ag part of the project expense. wowr, each existing STEP system shall be inspected by OWASA, the Orange County Health Department and an engineer employed for that purpose by the Association. Repairs to each, if any, WatOOMOWatitg0 each shall be specified by the engineer, approved by OWASA and the Orange County Health Department, and completed ommoktutotalijoy::::::00 41.0111$1:0C$0***040.1634#1C:00#14#040::::0Vvx4100640:::iiith.10 as part of the Subdivision wastewater system project. 6 . The ASSOCIATION has or will contract with Colonial Engineering, Inc . (hereafter "Colonial" ) to be the Subdivision wastewater system engineer for: ( 1) professional services incident to the construction of the Subdivision wastewater system; and, (2) the application by the COUNTY for a State Grant. The ASSOCIATION hereby assigns to OWASA its contract with Colonial and covenants and warrants to OWASA that that contract is assignable to OWASA and that Colonial in all and every respect agrees to this assignment. 7 . The parties acknowledge that upon connection of the Subdivision wastewater system to the sewer system of the City of Durham, the portions of the Subdivision wastewater system related to treatment of wastewater, for example, the community septic system drainfield areas and drainfield reserve areas, will no longer be part of or necessary for the Subdivision wastewater system. The ASSOCIATION covenants and agrees that it will, as soon as is reasonably practical, take title to the land not now owned by the COUNTY that is now dedicated to these system components or 6 17 dedicated to the public for open space or recreation, free of all encumbrances save current property taxes, and that it will dedicate this land for the use and enjoyment of the residents in the Subdivision as permanent open space. All instruments of dedication and evidence of title shall be in form and substance approved by the COUNTY. 8 . The ASSOCIATION covenants and agrees to indemnify and hold harmless the COUNTY and OWASA, their board members, officials and employees, from any claim against either arising out of or related to the design and construction of the Subdivision wastewater system i iiRtetrtot .4 s* thiir.: rapa ir r reg4i . This indemnity includes responsibility, on the part of the ASSOCIATION, to pay the reasonable attorneys fees of the attorney selected by the COUNTY and OWASA to represent each in the event of litigation or threatened litigation wherein the COUNTY and OWASA or either of them are named or threatened and the responsibility to pay such reasonable litigation expenses incurred by the COUNTY and OWASA in the defense of litigation or threatened litigation. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed for and in their place and stead by their duly authorized undersigned officers and agents, to be effective from and after the date first above written. ORANGE COUNTY ATTEST: By: COUNTY CLERK 7 18 THIS INSTRUMENT HAS BEEN PREAUDITED IN THE MANNER REQUIRED BY THE LOCAL GOVERNMENT AND FISCAL CONTROL ACT: DATE FINANCE OFFICER ORANGE WATER AND SEWER AUTHORITY ATTEST: By: ASSISTANT SECRETARY THIS INSTRUMENT HAS BEEN PREAUDITED IN THE MANNER REQUIRED BY THE LOCAL GOVERNMENT AND FISCAL CONTROL ACT: DATE FINANCE OFFICER PINEY MOUNTAIN HOMEOWNERS ASSOCIATION ATTEST: By: SECRETARY Document #5 19 • Draft: 5/11/94 NORTH CAROLINA 5/17/94 6/7/91 ORANGE COUNTY 6/23/91 91004 AGREEMENT APPROVING EXTENSION OF AND RESTRICTIONS REGARDING CONNECTIONS TO A PUBLIC SEWER LINE TO BE CONSTRUCTED TO PROVIDE PUBLIC SEWER COLLECTION SERVICE SOLELY TO PINEY MOUNTAIN SUBDIVISION THIS AGREEMENT is made and entered into this the day of , 1994, by and between Orange Water and Sewer Authority, a public body politic and corporate, organized and existing under the provisions of Chapter 162A of the North Carolina General Statutes , with its principal office in Carrboro, North Carolina, Orange County, a body politic and corporate and a political subdivision of the State of North Carolina and the Piney Mountain Homeowners Association, a North Carolina not for profit corporation (being duly authorized to act and acting for and on behalf of the owners of lots in that subdivision, their grantees, successors and assigns ) . WITNESSETH WHEREAS, the on-site sanitary sewer collection system serving lots in the Piney Mountain Subdivision in Orange County has failed; repairs or construction of a replacement on-site system are not possible because of unsuitable soils in more than sixty-five percent of the area available for use as wastewater drainfield; and therefore, a public health emergency as defined in the Orange County Water and Sewer Policy exists ; and WHEREAS, the Piney Mountain Homeowners Association, representing owners of lots and homes in the Piney Mountain Subdivision, has petitioned Orange County, the Towns of Chapel Hill 1 20 and Carrboro, the City of Durham, and Orange Water and Sewer Authority to allow the extension of a public sewer collector main, and the construction and operation of related facilities, all as may be necessary to collect and transport wastewater from homes constructed or to be constructed in the Piney Mountain Subdivision to the Durham County line where it will be connected to and the wastewater thence transported through City of Durham mains for treatment in the wastewater treatment system operated by the City of Durham; and WHEREAS, the Towns of Chapel Hill and Carrboro and Orange County entered into a Joint Planning Agreement in 1987 which identifies an area known as the Rural Buffer in which the Piney Mountain Subdivision is located and which provides for residential development only, limited to a density of no more than one residence per two acres; pursuant to that Agreement, the Towns of Chapel Hill and Carrboro and Orange County have adopted a Joint Planning Area Land Use Plan which contains significant limitations on public water and sewer extensions into the Rural Buffer and significant policy preferences against these extensions; and, WHEREAS, Piney Mountain Subdivision is located within an area subject to the planning and zoning jurisdiction of Orange County, within the Rural Buffer, and is zoned Rural Buffer (RB) ; and, WHEREAS, Orange County has adopted a Water and Sewer Policy, in part, to implement the Joint Planning Area Land Use Plan limitations on the extension of public water and sewer system 2 21. extensions into the Rural Buffer; that Policy states, in pertinent part, as follows : "Public water and sewer facilities should be extended in accordance with the Land Use Element of the Orange County Comprehensive Plan. Such facilities will be encouraged, where they are available, in the Plan's Urban and Transition areas, and will be discouraged in Rural and Agricultural areas, except where their provision will enhance the rural character and provide for open space by allowing clustered development. " and, "Outside of Transition Areas, extension of water or sewer systems will only occur to provide service to an essential public facility, such as a school, or to remedy a public health emergency not otherwise correctable, such as a failing septic tank or failing package treatment plant( . ) ; " and, WHEREAS, the parties and the Towns of Chapel Hill and Carrboro have agreed that the Piney Mountain Subdivision petition ought to be allowed, notwithstanding the limitations and policy preferences against public sewer extensions contained in the Joint Planning Area Land Use Plan, as specifically contemplated under the Orange County Water and Sewer Policy, as necessary to alleviate a public health emergency, but without thereby intending or effecting any modification or other limitation to the continuing effect of the Joint Planning Area Land Use Plan's restrictions on public sewer extensions or connections within the Rural Buffer; and 3 22 WHEREAS, Orange Water and Sewer Authority has adopted a Mains Extension Policy which, consistent with the Joint Planning Agreement, Joint Planning Area Land Use Plan, and the Orange County Water and Sewer Policy, prohibits the extension of public water and sewer lines into the area designated as Rural Buffer, except as necessary to alleviate a public health emergency; and WHEREAS, the Town of Chapel Hill and the City of Durham have agreed to an annexation boundary to the west of which Durham will not seek to annex properties into its city limits, and to the east of which Chapel Hill has agreed not to annex properties into its town limits, and the Piney Mountain Subdivision is to the west of that annexation boundary line; and WHEREAS, Orange Water and Sewer Authority and the City of Durham have entered into a Service Area Boundary Agreement which provides that Orange Water and Sewer Authority will serve those properties lying west of the annexation boundary agreement between Chapel Hill and Durham, and thus the Piney Mountain Subdivision is within the area where the City of Durham has agreed not to extend water or sewer lines or service; however, notwithstanding that agreement, and without intending to effect any modification to that agreement as it may apply to any property other than the present Piney Mountain Subdivision lots, or to any improvements not constructed within that subdivision as of the date of this Agreement, the parties wish to authorize the connection of a line to be constructed from Piney Mountain Subdivision to a receiving main owned by the City of Durham at the Durham County line, for the 4 23 sole purpose of receiving wastewater from homes constructed and to be constructed on the fifty-nine lots which now constitute the Piney Mountain Subdivision; and WHEREAS, a Memorandum of Understanding entered into in 1989 by and among Orange Water and Sewer Authority, Orange County, the Town of Chapel Hill and the Town of Carrboro provides that the parties will communicate regularly about matters of mutual concern, specifically including water and sewer extension policies and development requests that would require water and/or sewer service extensions into areas not developed to urban densities, and the parties acknowledge by this Agreement their agreement to cooperate together to serve their respective and mutual interests, one of which is providing for prompt action to alleviate the existing public health emergency at Piney Mountain Subdivision, while at the same time preserving the nature and effect of the mutual undertaking of the parties and the Towns of Chapel Hill and Carrboro not to provide sewer service extensions or otherwise to provide public sewer service in the Rural Buffer except as provided in the Orange County Water and Sewer Policy as may be necessary to alleviate a public health emergency; and WHEREAS, Orange County, the Towns of Chapel Hill and Carrboro, the City of Durham and OWASA have all, by resolution of their governing boards and by collateral agreements between and among some of them, approved the connection of the Piney Mountain Subdivision to the public sewer system of the City of Durham to 5 24 correct the public health emergency created by the failed septic system serving the Piney Mountain Subdivision; and WHEREAS, the County, the Towns, the City and the Authority are particularly concerned that their determination to approve the Piney Mountain Subdivision line, to alleviate the public health emergency, shall not effect any abrogation either of their zoning and subdivision regulations, or their water and sewer policies, or their cooperative agreements, or their respective commitments and efforts to preserve open space and the character of the Rural Buffer, and to make adequate provision for public educational facilities, and watershed and natural drainage preservation; and WHEREAS, the parties have therefore determined that the sewer main and related facilities to be constructed and/or operated hereunder to alleviate the existing public health emergency at Piney Mountain Subdivision shall be restricted for use solely for that purpose, and that further connections thereto will not be allowed to serve either any new development, or any existing development in the absence of a public health emergency not otherwise correctable as defined in the Orange County Water and Sewer Policy. NOW, THEREFORE, the parties have agreed for themselves and for their successors and assigns : 1 . In order to alleviate the existing public health emergency, a sewer force main and appropriate pumps and facilities (sized and constructed in accordance with the specifications and requirements of the Orange Water and Sewer Authority, as necessary 6 25 to collect and convey wastewater from the existing improvements in the Piney Mountain Subdivision to the Durham County line, where the same shall be connected with sewer main facilities operated by the City of Durham) , shall be constructed by Orange County or its designee and, at the sole expense of the Piney Mountain Homeowners Association, and/or its members or designate. In the event that Orange County is the recipient of a grant through the North Carolina Clean Water Revolving Loan and Grant Act of 1987 (hereafter "State Grant" ) for the construction of the Piney Mountain Subdivision wastewater system or any part of it, Orange County agrees to apply the State Grant funds to grant eligible construction expenses or to refund money to Piney Mountain Homeowners Association with State Grant funds for grant eligible expenses paid by the Homeowners Association. And, in consideration of the conditions, restrictions, and undertakings herein recited among the parties, the Piney Mountain Homeowners Association has agreed to convey and shall convey the said system facilities to Orange County or its designee, which shall thereafter operate and maintain the same in accordance with the terms, conditions, restrictions and undertakings herein recited and in accordance with the teLms, conditions, restrictions and undertakings of any other agreement or agreements among the parties or any of them and with other parties related to the Piney Mountain Subdivision wastewater collection system. 2 . The area that may be connected to the sewer main and related facilities constructed in accordance with this Agreement is 7 26 the Piney Mountain Subdivision only, a subdivision of approximately 120 acres located within Chapel Hill Township approximately one mile west of the Orange/Durham County line on the north side of Mount Sinai Road (SR 1718) . It encompasses fifty-nine platted residential single family lots described as Piney Mountain Subdivision Phase I, Lots 1-24 and Phase 2 , Lots 25-59, as recorded in Plat Book 49, Pages 85 & 86, Plat Book 52 , Page 183 , and Plat Book 58, Pages 129 & 130 . 3 . The sewer main and related facilities constructed in accordance with this Agreement to serve the Piney Mountain Subdivision, and originally connected to the City of Durham main at the county line, will be connected to OWASA, mains when the same may be constructed in the area proximate to Piney Mountain Subdivision, and the cost of construction of facilities and connections to join this line to future OWASA lines shall be paid on a pro-rata basis by the owners of lots within the Piney Mountain Subdivision. Likewise, if for any reason OWASA is unable to or determines not to continue its agreement with the City of Durham providing for the City of Durham to receive and treat waste from Piney Mountain Subdivision through the line to be constructed hereunder, the owners of lots in Piney Mountain Subdivision shall be responsible for and shall pay to OWASA the cost of an appropriate line and connection to the OWASA sewer collection system as may be necessary to connect the Piney Mountain system to OWASA collector mains leading to OWASA's wastewater treatment facilities . Any such connection to OWASA's wastewater collector mains and wastewater 8 27 treatment facilities shall be in accordance with the terms, conditions, restrictions and undertakings herein recited. 4 . In consideration of acceptance, operation and maintenance of the sewer main and related system facilities by Orange Water and Sewer Authority, the owners of properties to be connected to the sewer main to be constructed have agreed to pay and shall pay to Orange Water and Sewer Authority rates, fees and charges calculated by the Authority as those necessary to recover the ingiotam afttot costs of the services provided, including reasonable reserves for maintenance and replacement of the facilities necessary to provide the service to the Piney Mountain Subdivision, and a reasonable charge representing recovery of a share of the cost of OWASA's existing capital plant and facilities iiiiddEtb. WOW The rates and charges may be different from those charged customers of OWASA's existing sewer system, and shall include provisions for recovery of such atiloatmodnuagoat costs as may be incurred and paid to the City of Durham for its acceptance and treatment of the wastewater from the Piney Mountain Subdivision. ggubmgmtgginggy KOIMAXIV:iiifg:001000001::100004X041310014501100000::::::0***Iiiiiiii000. igh*::::*000,400:::::::00M04041041.00410101•001MWRA ftaMiNg#140 WnCiilf#00:::::100114INUMMONEVOMMIONCII10101:1101:144:1001" and in the eve <,f any such 1im n derogation of Uiis covenant, natiMbitirtaigii4#01144400000#40 9 28 5 . The main and facilities constructed hereunder shall be used solely to provide service to the homes constructed and to be constructed on the lots which now constitute the Piney Mountain Subdivision as described in paragraph 2 of this Agreement. Orange Water and Sewer Authority shall not permit, nor shall any of the other parties to this Agreement request or attempt to permit, or approve any development which would require, other connections to this line to serve properties outside the Piney Mountain Subdivision, except as may be necessary to alleviate a public health emergency, except by and with the consent of the portico hereto gtiOBP#4#4*:nai§gNMg§*igRi,thgagrant*Wggg,t* and the Towns of Chapel Hill and Carrboro. 6 . Orange Water and Sewer Authority and the City of Durham taiWAW400644 will execute a separate Agreement for Collection and Treatment of Wastewater from Piney Mountain Subdivision, Mi4.01141;10 *408:41# - - - - • • - • - - - — - - Exhibit A id trnikiWANOM• 7 . The parties hereto agree that this Agreement is entered into solely to recognize and provide the means for alleviating an existing public health emergency in the Piney Mountain Subdivision and its environs in Orange County, and that nothing herein shall be deemed or construed so as to modify or diminish the commitment of the parties, as expressed in the various intergovernmental agreements, policies, subdivision, and zoning documents referenced above, not to provide public water and sewer service extensions in areas identified by the parties ' policies and understandings as not 10 29 suitable for development at urban densities . Nor shall this agreement be construed, deemed, or urged by any party to amend the Joint Planning Agreement, the Joint Planning Land Use Plan, the Orange County Water and Sewer Policy, the Annexation Boundary Agreement executed by and between the City of Durham and the Town of Chapel Hill, or the Service Area Boundary Agreement executed by and between Orange Water and Sewer Authority and the City of Durham, except as and for the specific, limited purposes for which it is entered. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed for and in their place and stead by their duly authorized undersigned officers and agents, to be effective from and after the date first above written. ORANGE COUNTY ATTEST: By: COUNTY CLERK ORANGE WATER AND SEWER AUTHORITY ATTEST: By: AS SECRETARY PINEY MOUNTAIN HOMEOWNERS ASSOCIATION ATTEST: By: SECRETARY 11 EXHIBIT A 30 STATE OF NORTH CAROLINA COUNTY OF DURHAM COUNTY OF ORANGE AGREEMENT FOR COLLECTION AND TREATMENT OF WASTEWATER FROM THE PINEY MOUNTAIN SUBDIVISION, ORANGE COUNTY, BY THE CITY OF DURHAM THIS AGREEMENT is made and entered into by and between the CITY OF DURHAM, a North Carolina municipal corporation, (herein referred to as "City" ) , and ORANGE WATER AND SEWER AUTHORITY, a public body, politic and corporate organization and operating pursuant to Chapter 162A of the North Carolina General Statutes , (herein referred to as "OWASA" ) , and shall be effective from and after the date of its execution by both of the parties . WHEREAS a consent judgment entered by the court on November 6 , 1986 in the Town of Chapel Hill vs . City of Durham, established an annexation boundary line between the Town of Chapel Hill and the City (hereinafter "Annexation Boundary Line" ) ; and WHEREAS in 1993 , the AGREEMENT DEFINING SERVICE AREA BOUNDARIES AND PROVIDING FOR SALE AND PURCHASE OF WATER was renewed for a five (5) year term ending on August 26 , 1998 ; and WHEREAS the Piney Mountain Subdivision lies on OWASA' s side of the annexation boundary line, approximately one mile west of the City' s wastewater collection facilities on Kerley Road and Mount - Sinai Road; and WHEREAS as of the date of this AGREEMENT there are no existing OWASA sewer facilities near the Piney Mountain Subdivision which could be extended . to serve the subdivision in a manner that is economically feasible; and WHEREAS it has been determined that the Piney Mountain Subdivision' s on-site wastewater treatment system has failed and the sole remedy is a force main to the nearest public wastewater collections system. NOW, THEREFORE, the City and OWASA for and in consideration of the matters hereinafter set forth, do hereby agree as follows : 1 . PURPOSE The purpose of this Agreement is to permit the City to receive wastewater from OWASA that is generated from the Piney Mountain Subdivision until such time as OWASA' s. utilities are extended to the subdivision as hereinafter defined. -1- 31 2 . DEFINITION OF AREA A. The service area which is the subject of this agreement is a subdivision of approximately 120 acres located within Chapel Hill Township approximately one mile west of the Orange/Durham County line on the north side of Mount Sinai Road (SR 1718) . It encompasses fifty- nine platted residential single family lots described as Piney Mountain subdivision Phase I, Lots 1-24 and Phase 2 , Lots 25-59 , as recorded in Plat Book 49 , Pages 85 & 86 , Plat Book 52 , Page 183 , and Plat Book 58 , Pages 129 & 130 . B . The service area may not be expanded beyond the existing 59 lots . 3 . OWNERSHIP, MAINTENANCE AND INSPECTION A. The wastewater collection system serving the Piney Mountain Subdivision, including the pump station and force main that convey wastewater from the subdivision to the City' s wastewater collection system, shall be owned, operated and maintained by OWASA. The installation shall be done under the direction of OWASA at no charge to the City. B . OWASA agrees to allow the City to inspect any portion of the system that is located on the City side of the service area boundary line . 4 . MEASUREMENT OF WASTEWATER FLOWS A. The City agrees to receive from OWASA, at one collection point, domestic wastewater which is generated by the Piney Mountain Subdivision. B . A meter shall be installed as directed by the City to measure the amount of wastewater discharged to the City system. After installation and acceptance of the meter, it will be owned by the City. • C. The City shall read this meter monthly and bill OWASA for sewer usage based on 100% of the City' s prevailing "outside" rate schedule . D. OWASA shall pay to the City, on a monthly basis , the City' s current charges for the sewer usage, based on the meter readings described in 4B above . 5 . CAPITAL FACILITY FEES A. OWASA shall pay to the City the sum of $25, 901 . 00 in capital facility fees prior to connecting to the City' s wastewater system. If service under this agreement is terminated before one (1) year after the execution date, the City will refund to OWASA the aforementioned capital • facility fee . -2- 32 6 . TERMS OF AGREEMENT A. This Agreement shall become effective upon signing by both parties, and remain in effect until one of the following conditions is met : (1) OWASA' s sewer system is extended to the Piney Mountain Subdivision; or (2 ) The Annexation Boundary Line is altered in such a way as to bring the Piney Mountain Subdivision into the City' s service area . B . This Agreement may be amended or terminated, by mutual agreement of both parties . C . Nothing in this Agreement is intended to alter either : (1) The Annexation Boundary Line; or (2) The Agreement defining service area boundaries and providing for sale and purchase of water, entered into by the City and OWASA in August , 1988 and renewed in 1993 . D . This Agreement shall be administered by the City' s City Manager and by OWASA' s Executive Director, or their designees . E . Any litigation arising out of this Agreement shall be determined in Durham County District or Superior Court . F . NONDISCRIMINATION POLICY. The City of Durham opposes discrimination on the basis of race and sex and urges all of its contractors to provide a fair opportunity for minorities and women to participate in their work force and as subcontractors and vendors under City contracts . IN WITNESS WHEREOF, the parties have authorized this Agreement to be executed and attested by their undersigned officers , to be effective from and after the date executed by the latter party. [End of Text] This instrum. - ,.. --s been preaudited in the manner required by the 'ca Gover. t 13.dget and Fiscal Control Act . Finance Officer Date -3- ) . • 33 t)D6iGU.p6Pi c7A4. .._-.7 ATTEST gr,:;* ,:;-\'-C'TY::,OF •e 7, ./749 .... lia . . ., A , / ....i. , . .4 ii City Clerk ot$..,%----. ....... - .. .. . . - . City Manager N i ;00•—•„,-.. ', ..14•,. ,.. 6......„.5; ATTE T ,,_, ic,„ , z <(\**\ -,.-)", 1 ORANGE WATER AND SEWER AUTHORITY 1 1975 , ...„ Aiati„ ,, - ..i. 4,... .._ __ .a...c.../.1 ' ''.?4‘. COU... 4: :/: , --.- s.,,,a1#\‘11 As, istant Secretf:r• Executii7t )tor STATE OF NORTH CARO INA COUNTY OF / . I, AlLii..e.,... / . • , a notat4Ayublic for said County and S ate, '-rtify that , ),Ctii40,1--.12-7)7 - 0-2-personallyappeared before me this day, and acknAoWledged that she is City Clerk of the CITY OF DURHAM, a municipal corporation, and that by authority duly given and as th .,04tepft$44 the City, the.....„,foregoing contract was signed in its coyA,05fil:444 by its City Manager, sealed with its corpcilates*seZ1:1.,,irilattested by her, elf as its said City Clerk or Depugy t'itg)LOkekic. . This the 42tleilr-Aday of 199*_. : . 1 . • * * - . . , . . - • :2 1D08 tk 1 / 4110P ••••,,6;p'..,. - a r y Pu,, ic , /,),. ........• ..i, ,,,,,, ....-4,'' 41411COT\O \,0* My commission expires : it-c,V7-"--7,0111,11■0° STATE OF NORTH CAROLINA COUNTY OF (7,444,6i= I , .1- • ,- F.- „f , A , a notary public for said County and State, certify that 777,7471 (;;/.(,-;ce_ personally appeared before me this day, and acknowledged that 4242---Q, she is AZ/s7,471--,k4;7 o of ORANGE WATER AND SEWER AUTHORITY, a public body, politic and corporate organization and operating pursuant to Chapter 162A of the North Carolina General Statutes, (herein referred to as "OWASA" ) , and that by authority duly given and as the act of the corporation, the foregoing contract with the City of Durham was signed in its name by its whose name is zo. Z. 8,14fiast." , sealed with its coLporate seal, and attested by Ita-m/herself as its said A9gkd,/-,4"Clrf-S27yvA;46t-. • This the ,2.e.g. day of jt,/, , 199y ; OD . 1 . Notary Public IMy commission expires : 1 Cevoseg, 2 a , 1 9 9 14 -4- - ' 34 ORANGE WATER AND SEWER AUTHORITY APPROVED AS TO FORM AND LEGALITY: 44 a . DATE ROB !T EPTING, QUIRE COUNSFT, TO THE AUTHORITY THIS INSTRUMENT HAS BRAN PREAUDITED IN THE MANNER REQUIRED BY THE LOCAL GOVERNMENT AND FISCAL CONTROL ACT: 47--Gig L7/ 0110 Lakziellir AtAlar. DATE FINANCE OFFICER