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HomeMy WebLinkAbout2000 NS Carrboro, Chapel Hill, Hillsborough Solid Waste Management Interlocal Agreement 3 Agreement for Solid Waste Management To establish a comprehensive approach to solid waste management issues, and in consideration of the promises made to one another in this Agreement, Orange County and the Towns of Carrboro, Chapel Hill and Hillsborough hereby agree as follows: 1. The County will assume solid waste management responsibility effective January 1,2000. Operate the System. The County will operate the System for the benefit of the County, the Towns and the persons and organizations within their jurisdictions. The County will establish and enforce reasonable rules and regulations governing the operation and use of the System, operate the System in an efficient and economical manner and maintain the properties constituting the System in good repair and in sound operating condition. Provide solid waste disposal facilities. The County will provide System Management Facilities suitable for the disposition of Solid Waste by the County, the Towns and the persons and organizations within their jurisdictions. The existing landfill, as well as any successor System Management Facility, will be designated to accept solid.waste generated exclusively by residents,businesses and institutions located in Orange County and that portion of Chapel Hill located within Durham County,North Carolina. Determine policy. The County will have the ongoing authority and responsibility in its discretion (1) to administer and operate the System in accordance with the Solid Waste Management Plan and Policies and (2) to determine and modify the Solid Waste Management Plan and Policies from time to time. The County agrees, however, to consult with the other Parties and the Advisory Commission, frequently and consistently, to determine their views on the Solid Waste Management Plan and Policies and possible changes thereto. Take on employees. All of the System Employees will be transferred to the County and become County employees subject to the supervision of the County Manager in the same fashion as other County employees. The Parties acknowledge that it is an important objective of this Agreement that the current total compensation package for System Employees be maintained at a substantially equivalent level through their transfer to the_ County, although the combination of salary and benefits for any employee may change. The Parties recognize that all components of compensation to System Employees after the transfer will be subject to changes in salaries and benefits in the same fashion as other County employees. The County and Chapel Hill will develop a detailed schedule comparing the total pre-transfer and post-transfer compensation for each System Employee. Chapel Hill will send a copy of the completed schedule to Carrboro. Acquire System assets. The County will acquire all right, title and interest to all Existing System Assets. Title to the Greene Tract,however, shall not be conveyed to the County pursuant to this paragraph; Part 3 is and shall be the only portion of this Agreement affecting the state of the title to the Greene Tract. 4 Assume System liabilities. The County will assume all liabilities, including environmental liabilities, related to the ownership of the System, including, to the extent permitted by law, all liabilities related to the ownership of Existing System Assets which have accrued or which may accrue prior to the Transfer Date. The Parties, however, shall retain their individual liability, if any, under environmental laws and otherwise, related to their respective use of the System both before and after the Transfer Date (as, for example, any liability arising from their delivering, or causing to be delivered, Solid Waste to System Management Facilities). The Parties acknowledge that the County's assumption of liabilities as described in the preceding paragraph shall not limit, and is not intended to limit, the ability of any governmental authority to impose, or to seek to impose, environmental or other liability directly on a Party (as, for example, any liability accruing to the current owners of the Existing System Assets as a result of their status as owners prior to the Transfer Date). The County will not assume, and by this Agreement does not assume, any indebtedness of Carrboro or Chapel Hill. Acquire propeM. The County shall acquire real and personal property as it deems appropriate for System purposes. There shall be no restrictions on the County's acquisition of additional acreage at the existing landfill. The County states its current intention not to acquire, and its recommendation that future County Governing Boards not acquire, any of the properties known as the Blackwood and Nunn properties for System purposes. Provide for compliance with law. The County will comply, or cause there to be compliance, with all applicable laws, orders, rules, regulations and requirements of any governmental authority relating to the System. The County will also be generally responsible for solid waste reporting, planning, regulatory compliance and similar matters. Nothing in this Agreement, however, shall prevent the County from contesting in good faith the applicability or validity of any such law or other requirement, so long as the County's failure to comply with the same during the period of such contest will not materially impair the System's operation or revenue-producing capability. Make reports. The County will make, or cause to be made, any reports or audits relating to the System as may be required by law. The County, as often as may reasonably be requested, will furnish such other information as the County may have reasonably available concerning the System or its operation as the Advisory Commission or any Party may reasonably request. The County, which the Parties have designated as a local lead agency, and the Towns will cooperate in preparing and submitting any reports or solid waste plans that a Party may be required to file with governmental authorities, such as the State's Division of Waste Management. Approve budget. The County will approve the 1999-2000 System operating budget together with Chapel Hill. Effective date — The County will assume solid waste management responsibility as described in this Part 1 on January 1, 2000. The Parties shall take actions provided for in this Agreement, or which may otherwise be necessary or appropriate, in a timely fashion to permit the County's assumption of responsibilities as of the specified date. Draft of June 1, 1999 2 5 2. The Parties will deliver Solid Waste and County Recyclables to the System. The County_ and the Towns all agree to deliver, or cause to be delivered; to System Management Facilities for disposal or processing, respectively, all Solid Waste and County Recyclables under their respective control. This delivery obligation includes (without limitation) all Solid Waste and County Recyclables collected by any Party's employees, solid waste collection contractors, solid waste collection licensees or solid waste collection franchisees. There is no such obligation to deliver Other Recyclables. All Solid Waste and County Recyclables delivered to System Management Facilities, or to County employees, solid waste collection contractors, solid waste collection licensees or solid waste collection franchisees, or properly placed in a designated container at a convenience center, will be County property upon such delivery. The County will have the right to refuse to accept for disposal at System Management Facilities any material or substance which the County reasonably determines is barred from such disposal by the Solid Waste Management Plan and Policies, by any applicable law or regulation or by the restrictions of any permit. Notwithstanding the provisions of the previous paragraph, the County shall in no event be deemed the owner of any such barred substance without its express consent. If at any time a material that previously qualified as Other Recyclables begins to be processed by the County for recycling and therefore becomes County Recyclables, then any Party theretofore processing such material as Other Recyclables shall begin to process such material as County Recyclables upon the expiration of any contract for disposal of the material as Other Recyclables that may be in effect at the time of the material's change in status. 3. Solid waste collection and transportation decisions will remain each Party's prerogative. The Parties in all events retain the right to determine their own systems and procedures for the collection of Solid Waste and related matters, provided that such systems and procedures shall be reasonably designed to be consistent and compatible with the appropriate Solid Waste Management Plan and Policies. 4. The County will operate the System as an enterprise operation, and will have discretion to set rates,fees and charges. The Parties agree that the long-term success of the arrangement for solid waste management provided for in this Agreement requires that the Parties remain committed partners. The Parties agree that their goal of reducing solid waste must be achieved in a manner that guards the economic viability of the System's.current and future operations. At the same time, the Parties acknowledge that the County is not expected to use its general funds to underwrite overall solid waste management activities. Therefore, the County, the Towns and the persons and organizations within their jurisdictions all must bear appropriate proportional shares of the Draft of June 1, 1999 3 6 ' costs of providing for current and future operations of the solid waste management enterprise. The Parties agree that the County, as part of its responsibility for solid waste management, must retain broad flexibility to implement and adjust rates, fees and other charges, as provided below, in order to generate sufficient resources through the System to carry out the requirements of the Solid Waste Management Plan and Policies. The Parties agree that the County is ultimately responsible for balancing the available resources and the demands.on the System, and that the County must therefore have sufficient authority to adjust either the resources or the System demands, or both, to achieve the balance. Part 1 of this Agreement provides for the County's authority over the Solid Waste Management Plan and Policies. This Part 4 provides for the County's authority over the available resources. System will be operated as an enterprise find. The County will segregate for accounting purposes all the System's accounts, moneys and investments. The County will provide for the System's assets, liabilities and results of operations to be presented in the County's annual audit as a separate enterprise fund, in accordance with generally accepted accounting principles. The County will annually adopt a separate budget for the System in accordance with the County's usual budgetary process. The County will keep accurate records and accounts of all items of costs and of all expenditures relating to the System, and of the System Revenues collected and the application of System Revenues. Such records and accounts will be open to any Party's inspection at any reasonable time upon reasonable notice. System will be operated on a self-supporting basis. The County will establish and maintain a system of rates, fees and charges for the use of, and for the services provided by, the System which is reasonably designed to pay in fill all the costs (and only the costs) of carrying out the County's responsibilities under this Agreement and the Solid Waste Management Plan and Policies, including, without limitation, (1) costs of disposing of Solid Waste, (2) costs of collecting, processing and disposing of Recyclables, (3) to the extent permitted by law, costs of providing public benefits determined to be provided pursuant to Part 6, and (4) costs of solid waste reduction activities. Subject only to the specific limitations set forth in this Agreement, the County may revise any rates, fees and charges at any time and as often as it shall deem appropriate. Limitations on Material Financial Changes. Notwithstanding any other provision of this Agreement, the County shall not put into effect any Material Financial Change unless the County first obtains the consent of all Parties. It will be each Town's obligation to determine whether any change or proposed change to the Solid Waste Management Plan and Policies is a Material Financial Change with respect to such Town within ten Business Days of receiving notice of the change or proposed change, and to notify the County within five additional Business Days if the Town determines that such change or proposed change is a Material Financial Change. The provisions of this paragraph are independent of the further provisions of this Part 4 concerning rates, fees and charges. Mixed Solid Waste Tipping Fee. (1) The County may increase the Mixed Solid Waste Tipping Fee from time to time in its discretion with at least 30 days' notice of the increase to all other Parties. The County may not, however, increase the Mixed Solid Waste Tipping Fee during or at the beginning of any Fiscal Year to a fee that exceeds the Mixed Solid Waste Tipping Fee in effect at the end of the preceding Fiscal Year by more than 10%,without the prior Draft of June 1, 1999 4 7 e consent of all the other Parties. Further, the Parties intend and agree that the County shall endeavor to adjust the Mixed Solid Waste Tipping Fee only annually, with changes becoming effective only at the beginning of a Fiscal Year. (2) The County may decrease the Mixed Solid Waste Tipping Fee from time to time in its discretion, without prior notice to or action by any other Party. The County will promptly notify the other Parties of any decrease in the Mixed Solid Waste Tipping Fee. Governmental Fees. (1) If the County determines that it is or may be advisable to create and impose any Governmental Fee, then the County will give at least 30 days' notice of the proposed Governmental Fee to the other Parties. A Governmental Fee may then be imposed only if the creation and imposition of such Governmental Fee is subsequently approved by the County and at least two other Parties (except that approval by the County and any other single Party will be required at any time there are less than four Parties to this Agreement). A new Governmental Fee will take effect at the end of the notice period or, if later, the date of the last Governing Body approval necessary for it to take effect. (2) The County may increase any individual Governmental Fee from time to time in its discretion with at least 30 days' notice of the increase to all other Parties. The County may not,however, increase any individual Governmental Fee during or at the beginning of any Fiscal Year to a fee that exceeds the fee in effect at the end of the preceding Fiscal Year by more than 10%, without the prior consent of all the other Parties. The Parties intend and agree that the County shall endeavor to adjust any and all Governmental Fees only annually, with changes becoming effective only at the beginning of a Fiscal Year. (3) The County may decrease any Governmental Fee from time to time in its discretion,without prior notice to or action by any other Party. The County will promptly notify the other Parties of any decrease in any Governmental Fee. Other fees. (1) This section applies to rates, fees or charges that the County may create or change, other than the Mixed Solid Waste Tipping Fee and Governmental Fees. This section would apply to any County proposal to create, increase or decrease an availability fee. This section does not apply to any proposal to impose or change any special district tax related to the System; instead, the generally applicable law shall govern any such proposal. The Parties note that North Carolina law currently requires a Town's consent to include any area within that Town's jurisdiction within a special taxing district, but that the County controls the rate of any special district tax in its discretion. (2) If the County determines that it is or may be advisable to create, increase or decrease any rate, fee or charge covered by this section, then the County will give at least 30 days' notice of the proposed change to the other Parties, and the County will request that the Advisory Commission consider the proposed change. If the Advisory Commission recommends that the change be approved, then the change may take effect if the County subsequently approves it. If the Advisory Commission recommends that the change not be approved, then the change may take effect only if the County and at least two other Parties subsequently approve the change (except that approval by the County and any other single Party will be required at any time there are less than four Parties to this Agreement). A change will take effect at the end of Draft of June 1, 1999 5 8 e the notice period or, if later, the date of the last Governing Body approval necessary for it to take effect. (3) Notwithstanding any other provision of this Agreement, the County may at any time, and from time to time in its discretion, create, increase or decrease any minor fees for the disposal of certain classes of Solid Waste (such as fees for the disposal of yard waste or clean wood waste) and minor charges for the sale of goods (such as, for example, mulch, scrap tires, or clean wood waste). A fee or charge shall be considered "minor" for the purposes of this paragraph if the fee or charge produced less than 1% of the System's total revenue for the last preceding Fiscal Year for which audited financial statements are available. Time limit on fee change approvals. Any approvals given by a Party, pursuant to the approval requirements of this Part 4,to the imposition or increase of any fee will be of no further effect after 90 days from the date of the action granting approval (or after such shorter or longer period as may be made part of the action granting approval), if the imposition or increase so approved has not by such time received all approvals required for its effectiveness. Use of System Revenues only for System; no requirement that County use general funds for System purposes. The County will use System Revenues solely to carry out the Solid Waste Management Plan and Policies and solely for the benefit of the System, including (1) to pay costs of disposing of Solid Waste, (2) to pay costs of collecting,processing and disposing of Recyclables, (3) to the extent permitted by law, to pay costs of providing public benefits determined to be provided pursuant to Part 6, and (4) to pay costs of solid waste reduction activities. The County will not use System Revenues to pay costs of collecting Solid Waste in unincorporated areas of the County. The County will in no event be required to use assets or funds other than those of the System to fulfill its obligations under this Agreement other than its obligations under Part 2. Reservation of County's righter Notwithstanding any provision of the Solid Waste Management Plan and Policies or this Agreement to the contrary, the County will in all events be entitled to operate the System and all its facilities, and may adjust any and all rates, fees and charges, as it may in its reasonable discretion deem reasonably necessary (1) to comply with any requirements of any applicable law or regulation or any court order, administrative decree or similar order of any judicial or regulatory authority, (2) to comply with the requirements of any contracts, instruments or other agreements at any time securing Outstanding System Debt, or (3) to pay costs of remediating any adverse environmental conditions at any time existing with respect to the System. 5. The Greene Tract will remain a landfill asset. Sixty acres of the Greene Tract will be reserved for solid waste management purposes, and the three owners will work together to determine the ultimate use of the remainder. The Parties agree that the Greene Tract remains a landfill asset. Chapel Hill, Carrboro and the County (the "Greene Tract Owners') will transfer to the County title to that portion of the Greene Tract described on Exhibit E, which contains approximately sixty acres. The County may use the property described on Exhibit E for System Draft of June 1, 1999 6 9 purposes. The County states its current intention not to bury mixed solid waste or construction and demolition waste on any portion of the Greene Tract. The County states its recommendation to future County Governing Boards that the County make no such burial. The Greene Tract Owners agree to bargain together in good faith and with all due diligence, and to use their respective best efforts, to determine an ultimate use or disposition of the remainder of the Greene Tract as soon as possible and in any event by June 30, 2001. During this bargaining period, no Greene Tract Owner shall make any use of the remaining portion of the Greene Tract without the consent of the other Greene Tract Owners. The Greene Tract Owners agree that among the issues to be addressed in the bargaining process are (1) the specific future uses, or ranges of use, to be made of the Greene Tract (including issues of devoting different portions to different uses, devoting portions to public uses and the possibility of making portions available for sale or private use), (2) whether to impose specific use restrictions, either through deed restrictions or through governmental regulation, and (3) issues of reimbursement to the landfill fund (both legal issues and issues of the extent of reimbursement). The Greene Tract Owners agree that during the bargaining period each should provide opportunity for public comment on possible or proposed uses or dispositions. Prior to July 1, 2001,no Greene Tract Owner shall(1) file any legal action or proceeding to force any sale or division of the Greene Tract, or (2) enter into any agreement to sell, mortgage or otherwise transfer all or any part of its ownership interest in the Greene Tract, in either case without the consent of the other Greene Tract Owners. To the extent permitted by law, Chapel Hill agrees not to initiate any proceeding to rezone any portion of the Greene Tract prior to July 1,2001,without the consent of the other Greene Tract Owners. On or after July 1, 2001, no Greene Tract Owner shall (1) file any legal action or proceeding to force any sale or division of the Greene Tract, or (2) enter into any agreement to sell, mortgage or otherwise transfer all or any part of its ownership interest in the Greene Tract, in either case without giving the other Greene Tract Owners at least 60 days' prior notice of such filing or entering into an agreement. In addition, on or after July 1, 2001, any Greene Tract Owner may give 60 days' prior notice of an election to be no longer bound by the restrictions of this Part 5, and such election shall be effective at the end of the notice period. 6. The County will finance community benefits from System funds to the extent legally permissible. The Parties will cooperate to provide public benefits to the community of residents and property owners in the neighborhood of the existing landfill. The Parties note the expected forthcoming report of the Landfill Community Benefits Committee that has been studying the question of community benefits. Upon the release of the report, each Party shall provide for its Governing Board to discuss the working group's proposal for community benefits, and shall provide for such legal and other staff analysis of the proposed list as it may deem appropriate (especially including legal analysis concerning the use of System funds to pay the costs of such benefits). After each Party has completed its own analysis, the Draft of June 1, 1999 7 10 Parties shall work together, diligently and in good faith, to reach an agreement as to community benefits to be provided. The process of determining community benefits shall continue to include participation by persons belonging to the relevant community. Final determinations of the public benefits to be provided,the sources of financing and the mechanisms for providing the benefits,however, shall be made only by further agreement of all the Parties. The Parties state their preference that benefits be financed from System funds to the extent permitted by law. To the extent permitted by law and by generally accepted accounting principles, to the extent determined by the Parties and notwithstanding any other provision of this Agreement, the costs of providing public benefits as described in this Part 6 may be treated as an expense of the System and may be paid from System Revenues. The public benefits contemplated by this Section are to be considered as separate and distinct from any compensation determined to be owed for any "taking" of an interest in property as determined by State or federal law. 7. The parties will establish an advisory commission. The Parties hereby establish the Orange County Solid Waste Management Advisory Commission to advise the County's Governing Board on matters related to the System and the Solid Waste Management Plan and Policies. The Advisory Commission shall meet for the first time not later than September 16, 1999, on the call of the members appointed by the County. The Parties will continue to work through the existing Landfill Owners' Group ("LOG") on matters of solid waste management policy and operations until the Advisory Commission begins to meet. The LOG shall continue to operate by consensus, but the Parties intend that the LOG shall make no recommendations for major financial commitments until it dissolves or is replaced by the Advisory Commission. Each Party shall appoint two members to the Advisory Commission. Exhibit C sets forth details concerning the Advisory Commission's responsibilities and the procedures that it shall follow, and also sets forth the Parties' agreement as to the appointment and terms of office of Advisory Commission members. If at any time the University of North Carolina agrees to comply with the provisions of Part 2 with respect to its facilities and operations in Orange County, then the Parties agree that the University, through its President, shall be entitled to appoint to the Advisory Commission one voting member, having one vote. Any initial University member shall serve for a term ending on the third June 30 following the member's appointment, and any succeeding University member shall serve for a three-year term (with there being no limits on the reappointment of University members). The limitations in Exhibit C excluding employees of Parties from serving on the Advisory Commission do not apply to the University or University members. The Parties agree to enter into a supplement or amendment to this agreement to include provisions reasonably necessary or appropriate to provide for the University's participation on the Advisory Commission in such circumstances. Draft of June 1, 1999 8 11 [Exhibit A contains certain definitions that apply to this Agreement. Exhibit B contains certain additional provisions of this Agreement.] [The remainder of this page has been left blank intentionally.] Draft of June 1, 1999 9 12 IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed in its corporate name by its duly authorized officers. ATTEST: (SEAL) ORANGE COUNTY,NORTH CAROLINA By: Clerk,Board of Commissioners Chair,Board of Commissioners ATTEST: (SEAL) TOWN OF CARRBORO,NORTH CAROLINA By: Town Clerk Mayor ATTEST: (SEAL) TOWN OF CHAPEL HILL,NORTH CAROLINA By: Town Clerk Mayor ATTEST: (SEAL) TOWN OF HILLSBOROUGH,NORTH CAROLINA By: Town Clerk Mayor Exhibits— A. Definitions B. Additional provisions C. Regarding the Advisory Commission D. Legal description of Greene Tract E. Legal description of Greene Tract portion to be devoted to solid waste Draft of June 1, 1999 10 13 STATE OF NORTH CAROLINA;ORANGE COUNTY I, a Notary Public of such County and State, certify that and personally came before me this day and acknowledged that they are the Chair and Clerk, respectively, of the Board of Commissioners of Orange County, North Carolina, and that by authority duly given and as the act of Orange County, North Carolina, the foregoing instrument was signed in the County's name by such Chair, sealed with its corporate seal and attested by such Clerk. WITNESS my hand and official stamp or seal,this day of , 1999. [SEAL] Notary Public My commission expires: STATE OF NORTH CAROLINA;ORANGE COUNTY I, a Notary Public of such County and State, certify that and personally came before me this day and acknowledged that they are the Mayor and Town Clerk, respectively, of the Town of Carrboro,North Carolina,and that by authority duly given and as the act of such Town,the foregoing instrument was signed in the Town's name by such Mayor,sealed with its corporate seal and attested by such Town Clerk. WITNESS my hand and official stamp or seal,this day of 11999. [SEAL] Notary Public My commission expires: STATE OF NORTH CAROLINA;ORANGE COUNTY I, a Notary Public of such County and State, certify that and personally came before me this day and acknowledged that they are the Mayor and Town Clerk,respectively,of the Town of Chapel Hill,North Carolina,and that by authority duly given and as the act of such Town, the foregoing instrument was signed in the Town's name by such Mayor,sealed with its corporate seal and attested by such Town Clerk. WITNESS my hand and official stamp or seal,this day of 11999. [SEAL] Notary Public My commission expires: STATE OF NORTH CAROLINA;ORANGE COUNTY I, a Notary Public of such County and State, certify that and personally came before me this day and acknowledged that they are the Mayor and Town Clerk, respectively, of the Town of Hillsborough, North Carolina, and that by authority duly given and as the act of such Town, the foregoing instrument was signed in the Town's name by such Mayor,sealed with its corporate seal and attested by such Town Clerk. WITNESS my hand and official stamp or seal,this day of . 1999. [SEAL] Notary Public My commission expires: ` Draft of June 1, 1999 14 Exhibit A—Definitions For all purposes of this Agreement, the following terms have the following meanings, unless the context clearly indicates otherwise. "Advisory Commission"means the Orange County Solid Waste Management Advisory Commission created pursuant to Part 7. "Agreement" means this Agreement for Solid Waste Management, as it may be duly amended and supplemented from time to time. "Business Day"means any day other than a day on which national banks are required or authorized to close. "Carrboro"means the Town of Carrboro,North Carolina. "Chapel Hill"means the Town of Chapel Hill,North Carolina. "County"means Orange County,North Carolina "County Manager"means the County's chief administrative officer. "County Recyclables"means all materials processed by the County for recycling and not disposed of at System Management Facilities, as the same may be established and amended.from time to time under the Solid Waste Management Plan and Policies. "Existing System Assets" means all System assets as of the Transfer Date, including, without limitation, the existing landfill, all other land and buildings, all equipment, including rolling stock, all licenses, permits and other governmental authorizations, all contracts, all customer records, all bank and other business records, and all cash and investments, including the capital reserve account currently maintained by Chapel Hill on behalf of the Landfill Owners' Group. "Fiscal Year"means the County's fiscal year beginning July 1, or such other fiscal year as the County may lawfully establish. "Governing Board" means, for any Party, its governing board of elected officials, as such governing board may be constituted from time to time. "Governmental Fee" will mean any fee related to activities of the System that is imposed directly and solely on the Parties themselves, other than the Mixed Solid Waste Tipping Fee. A possible example of such a fee could be a fee imposed by the County on all the Parties related to the County's providing of processing for County Recyclables through the System. "Greene Tract" means the parcel of land comprising approximately 169 acres lying south of Eubanks Road described in Plat Book 14,Page 143 and Plat Book 15, Page 138, Orange County Registry, as more specifically described in Exhibit D. Draft of June 1, 1999 12 15 "Hillsborough"means the Town of Hillsborough,North Carolina. "Material Financial Change"means a change, or series of related changes, made by the County to the Solid Waste Management Plan and Policies that, in the determination of any Town (provided that the Advisory Commission must verify such determination if so requested by the County),would have the effect of increasing by more than 15% the direct monetary cost to such Town of all its solid waste management activities (such as solid waste collection), when comparing (a) the expected cost of such activities for the first full Fiscal Year following the effective date of the change or changes in question to (b) the total cost for the Fiscal Year most recently completed prior to the effective date. "Mixed Solid Waste Tipping Fee" means the fee of that name assessed for disposing mixed solid waste at the existing landfill, any successor to that fee, or any other fee assessed for the use of System Management Facilities related to the disposition of Solid Waste (such as a fee imposed for the use of a transfer station or materials recovery facility). "Other Recyclables"means materials which would otherwise constitute Solid Waste,but which are to be delivered to some other entity and processed for recycling. For any material to constitute Other Recyclables, however, the entity to which the material is to be delivered must represent that such materials are intended to be processed for use in new products. Material will not constitute Other Recyclables, for example, if the entity to which it is to be delivered intends to re-deliver the material to some other disposal facility (such as a landfill or incinerator), whether or not such material is intended to be subject to further processing before disposal. "Parties"means, collectively,the County and the Towns, and "Party"means any one of them individually. "Solid Waste" means all materials accepted by the County for disposal at System Management Facilities, as the same may be established and amended from time to time under the Solid Waste Management Plan and Policies (subject to the provisions of Part 2 which authorize the County to refuse to accept for disposal any material or substance which the County reasonably determines is barred from such disposal by any applicable law or regulation or the restrictions of any permit),other than County Recyclables. "Solid Waste Management Plan and Policies"means, the combination of(a) the Solid Waste Management Plan, which is the report submitted pursuant to law to State authorities describing the long-term plan for solid waste management,which the County, as designated lead agency, files on behalf of the County and the Towns, and (b) the Solid Waste Management Policies, which are, collectively, all policies related to the System and coordinated solid waste management for the County,the towns and the persons and organizations in their jurisdictions, as the same may exist from time to time (including all such policies in effect as of the date of this Agreement). "State"means the State of North Carolina. "System"means all assets, including both real and personal property, used from time to Draft of June 1, 1999 13 16 time in the conduct of the functions of collecting and processing County Recyclables, reducing solid waste, disposing-of Solid Waste and mulching, composting and re-using Solid Waste, and includes both(a) the Existing System Assets and(b) all moneys and investments related to such functions. "System Debt"means all obligations for payments of principal and interest with respect to borrowed money incurred or assumed by the County in connection with the ownership or operation of the System, without regard to the form of the transaction, and specifically including leases or similar financing agreements which are required to be capitalized in accordance with generally accepted accounting principles. System Debt is "Outstanding" at all times after it'is issued or contracted until it is paid. "System Employees"means employees of Chapel Hill directly engaged in carrying out System business (but expressly not including employees of Chapel Hill's sanitation department). "System Management Facilities" means those assets of the System used to provide (a) final disposal of solid waste, including construction and demolition waste, such as landfills, or (b) any other handling or processing of materials placed in the custody of the System, such as transfer stations,materials recovery facilities or facilities for cleaning, sorting or other processing of recyclable material. "System Revenues" means all amounts derived by the County from the imposition of rates, fees and charges for the use of, and for the services fiunished by,the System. "Towns"means, collectively, Carrboro, Chapel Hill and Hillsborough. "Transfer Date"means January 1, 2000. Draft of June 1, 1999 14 17 Exhibit B—Additional Provisions Amendments. This Agreement may be modified or amended only by written amendments that are approved and signed on behalf of all the Parties. Notices. (a) All notices or other communications required or permitted by this Agreement must be in writing. (b) Any notice or other communication will be deemed given(i) on the date delivered by hand or (ii) on the date it is received by mail, as evidenced by the date shown on a United States mail registered mail receipt,in any case addressed as follows: If to the County, as follows: If to Carrboro, as follows: Orange County Town of Carrboro Attn: County Manager Attn: Town Manager 200 South Cameron St. 301 West Main St. Hillsborough,NC 27278 Carrboro,NC 27510 If to Chapel Hill, as follows: If to Hillsborough,as follows: Town of Chapel Hill Town of Hillsborough Attn: Town Manager Attn: Town Manager 306 North Columbia St. 137 North Churton St. Chapel Hill,NC 27516 Hillsborough,NC 27278 (c) Any Party may designate a different address for communications by notice given under this Section to each other Party. (d) Whenever in this Agreement the giving of notice is required, the giving of such notice may be waived in writing by the Party entitled to receive such notice, and in any such case the giving or receipt of such notice will not be a condition precedent to the validity of any action taken in reliance upon such waiver. When this Agreement requires that notice be given to more than one Party, the effective date of the notice will be the last date on which notice is deemed given to any required Party. No Third-Party Beneficiaries. Nothing expressed or implied in this Agreement will give any person other than the Parties any rights to enforce any provision of this Agreement. There are no intended third-party beneficiaries of this Agreement. Survival of Covenants. All covenants, representations and warranties made by the Parties in this Agreement shall survive the delivery of this Agreement. Severability. If any provision of this Agreement shall be held invalid or Draft of June 1, 1999 15 18 unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. Entire Contract. This Agreement, including .the Exhibits, constitutes the entire agreement between the Parties with respect to its subject matter. Counterparts. This Agreement may be signed in several counterparts, including separate counterparts. Each will be an original, but all of them together constitute the same instrument. Recordable Form. As this Agreement limits the Parties' rights to dispose of their respective ownership interests in the Greene Tract, any Party may cause this Agreement to be filed in the real property records in the office of the Register of Deeds of Orange County. Withdrawal, Any Party may withdraw from this Agreement (and thereby cease to be a Party to this Agreement) upon notice given to all the other Parties and subject to the following additional provisions: (a) A withdrawal may be effective only upon the beginning of a Fiscal Year. A Town may withdraw only with at least one'year's notice. The County may withdraw only with at least two years'notice. (b) No withdrawal will relieve a Party of its obligations under Part 2 so long as there is System Debt Outstanding;provided,however, that System Debt first issued or contracted after the date a Party gives notice of withdrawal will be disregarded for the purposes of this,paragraph. (c) No, withdrawal will relieve any Party of its individual liability, if any, under environmental laws or otherwise, related to its respective use or ownership of the System which may accrue or which has accrued prior to the effective date of such Party's withdrawal. Actions by a Any references to approvals or other actions by any Party will be deemed to be references to actions taken by the Party's Governing Board or taken pursuant to express, specific direction given by the Party's Governing Board. A egr ed-Upon Procedures= The terms, conditions and procedures for transferring employees and assets to the County as provided for by Part 1, and for transferring the property described on Exhibit E to the County as provided for by Part 3, in all cases shall be as agreed upon by the County, Carrboro and Chapel Hill. Effective Date: Term, This Agreement shall take effect immediately upon its execution and delivery by all the Parties, except that as indicated in Part 1, the County will assume solid waste management responsibility as described in this Part 1 on January 1, 2000: This Agreement will continue in effect so long as there are at least two Parties to the Agreement. Draft of June 1, 1999 16 19 Exhibit C—Regarding the Advisory Commission Responsibilities. The Advisory Commission's responsibilities shall include the following: (a) To recommend programs, policies, expansions and reductions of services, and other matters related to the operation of the System; (b) To suggest amendments to the Solid Waste Management Plan and Policies; (c) To provide advice to the County Manager for use in the County Manager's developing the proposed annual budget for the System, to review the budget for the System as proposed by the County Manager to the County's Governing Board, and to provide recommendations to the County's Governing Board for the approval or amendment of the proposed budget; (d) To receive and interpret for the County public input concerning the System and the Solid Waste Management Plan and Policies; (e) To further such mission and goals for the System as the County may adopt from time to time; (f) To provide promptly to the County's Governing Body a recommendation concerning any proposal for a change to rates, fees and charges forwarded to the Advisory Commission pursuant to this Agreement; and (g) Such other matters as the Advisory Commission may deem appropriate or which any Governing Board or the County Manager may request. Members; Terms. (a) Each Governing Board will appoint two members to the Advisory Commission as soon as practicable after the date of the execution and delivery of this Agreement. Each Party will notify all the other Parties of its appointments within ten Business Days after malting such appointments. (b) Advisory Commission members will serve staggered three-year terms. To .provide for the staggered terms of the members, the initial appointments by the Parties will be for the following terms: Member A Member B County 2 years 3 years Carrboro 2 years 3 years Chapel Hill 1 year 3 years Hillsborough 1 year 2 years (c) The first year of the term of each initial member of the Advisory Commission shall be deemed to expire on June 30, 2000. Thereafter, each year of the term of an Advisory Draft of June 1, 1999 17 20 Commission member will run from July 1 through the subsequent June 30, but each member shall continue to serve until such member's successor has been duly appointed and qualified for office. (d) Each Party may select and appoint Advisory Commission members in its discretion, except that no employee of a Party may be appointed as an Advisory Commission member. This Agreement in no way requires that any member be an elected official of the appointing Party. Any elected official of a Party appointed to the Advisory Commission will be deemed to be serving on the Advisory Commission as a part of the individual's duties of office, and will not be considered to be serving in a separate office. Any elected official of a Party appointed to the Advisory Commission will cease to be a member of the Advisory Commission upon such individual's cessation of service as an elected official of such Party (whether or not such member's successor will be been appointed and qualified for office), but such Party may reappoint such individual to the Advisory Commission. Each member of the Advisory Commission (including elected officials) serves at the pleasure of the appointing Party, and may be removed at any time by the appointing Party,with-or without cause. (e) The Governing Board that appointed the person who vacated the Advisory Commission seat will fill any vacancy on the Advisory Commission. In the case of a vacancy created during the term of a member, the appointment to fill the vacancy will be made for the remaining portion of the term in order to preserve the staggered-term pattern. Procedures. The Advisory Commission may adopt its own rules of procedure not inconsistent with the provisions of this Agreement, but the Advisory Commission's procedures shall include the following provisions: (a) Each member of the Advisory Commission will have one vote, except that in the event of the absence of a member, the other member appointed by the same Party as the absent member will be entitled to cast two votes. Any University member appointed pursuant to Part 7 shall have only one vote, and that vote shall not be cast in the member's absence. (b) A number of affirmative votes equal to a majority of the authorized number of Advisory Commission members will be necessary to take any action. (c) The Advisory Commission's presiding officer will vote as a member of the Advisory Commission,but will have no additional or tie-brealdng vote. (d) Representatives of a Party that has given notice of its withdrawal from this Agreement will have no vote on any matters that will affect the System beyond the effective date of such Party's withdrawal, and as to any such matters such members will not be deemed to be within the authorized number of Advisory Commission members for the purposes of subsection (b) above. Draft of June 1, 1999 18 21 Exhibit D—Legal Description of the Greene Tract Exhibit E --Legal Description of the Portion of the Greene Tract To Be Devoted to Solid Waste Management Purposes Draft of June 1, 1999 19 Robert M. Jessup Jr. 22 Memorandum By Facsimile To: Bob Morgan Rod Visser .Date: June 15, 1999 Regarding: Solid Waste Management Reorganization— Points from Monday night's Chapel Hill Council Meeting The Chapel Hill Council discussed the proposed agreement for solid waste management reorganization for about an hour on Monday night. The Council ended the discussion by unanimously adopting a resolution authorizing the Mayor to complete and execute the agreement, so long as three changes were made to the draft presented. Here is a brief description of the requested changes. I can address these at greater length at this afternoon/evening's meetings, but I wanted to give these to you this morning in case you had any time to think about them before the,meeting: 1) For the 60 acres of the Greene Tract to be transferred to the County for solid waste management purposes, impose the prohibition on the use of that property for burying solid waste or as a C&D landfill through a restriction in the deed from the current owners to the County, so it would be a legally enforceable restriction. In addition, state that no non-solid waste management use could be made of the 60-acre portion without the agreement of the three current co-owners. 2) Describe more explicitly the integrated solid waste management plan that the parties have already adopted. In the opening paragraph of Part 4, add a statement to the effect that the parties have adopted a plan that includes goals for the reduction of the solid waste stream, but acknowledging the County's discretion to change the plan (including those goals) to match resources and requirements. � °� £S6S-68#►-616 jr dnssar -W 4jagoN es* :eo 66 ST une 23 3) in Part 5, refer to the Greene Tract as a "public" asset, instead of a "landfill" asset. The Chapel Hill Council is of the view that because the County, for the benefit of the solid waste system, is getting outright title to 60 acres of the Greene Tract for the purposes of the System, there should be no claim of the solid waste fund to any further reimbursement related to any other portion of the Greene Tract; the grant of the sixty acres should provide adequate compensation to the solid waste fund. Therefore, the reference to reimbursement as an item for negotiation should be deleted. I told the Chapel Hill Council that I would report these three points to the County and Carrboro Boards today. I said that I would then report back to the group on Wednesday morning as to where we stand after these three Board meetings. I will be in the office until about 3:30 today if you want to discuss any of these points or any other aspect of the agreement. Otherwise, I will look forward to seeing you later today at your respective meetings (County at a 5:00 session, Canboro at its regular evening meeting). RMJ __P P Q Q-Q a 4 -i-r-cinsser -u -nLjaao>j - RC4-LQLn-CC CT unr tr 24 TOWN OF CHAPEL HILL 306 NORTH COLUMBIA STREET CHAPEL HILL, NORTH CAROLINA 27516 OFFICE OF THE MAYOR (919)968-2714 FAX(919)967-8406 June 22, 1999 Dr. Alice Gordon, Chair Board of Orange County Commissioners Post Office Box 8181 Hillsborough,NC 27278 Dear Alice: I am pleased to forward to you a copy of the resolution the Chapel Hill Town Council adopted last night authorizing the execution of the Agreement for Solid Waste Management. As you will see, the authority is based on the June 1 draft of the agreement, with a limited number of modifications: 1. A deed restriction would be added to the deed for the 60 acres of the Greene tract to be reserved for solid waste management purposes that would prohibit use of that land for the purpose of burying either mixed solid waste or construction and demolition waste, while specifically allowing other solid waste management uses. In addition, the Town of Chapel Hill agrees to amend its development regulations so that such other solid waste uses of this property would be permitted uses. The Council has already instructed our staff to begin this zoning ordinance amendment process. 2. Amplify the definitions of the Integrated Solid Waste Management Plan and the Solid Waste Management Plan and Policies, while also acknowledging explicitly that the County has sufficient authority to adjust either the resources available to the System or the requirements of the Solid Waste Management Plan and Policies, or both. In addition, the Council has authorized me to agree to minor changes, as long as the document to be executed is in substantially the form presented and discussed on June 14 and June 21. I believe that this signals the Council's intent to complete discussions of final details and have the Solid Waste Agreement executed by July 1. 25 I, too, feel comfortable that we can all agree on an acceptable agreement by this date and look forward to working with you to this end. Sincerely, Rosemary Waldorf Mayor C: Board of Commissioners John Link, County Manager 26 A RESOLUTION PROVIDING FURTHER AUTHORIZATION FOR THE MAYOR TO EXECUTE AN AGREEMENT FOR SOLID WASTE MANAGEMENT, THEREBY TRANSFERRING RESPONSIBILITY FOR SOLID WASTE MANAGEMENT FROM THE TOWN OF CHAPEL HILL TO ORANGE COUNTY(99-6-21/R-1) WHEREAS, on June 14, 1999, the Town of Chapel Hill Town Council adopted a resolution authorizing the execution of an Agreement for Solid Waste Management to transfer management responsibility for all disposal, recycling, waste reduction and materials processing to Orange County; and WHEREAS, after consideration of the actions taken by the governing bodies of the other prospective parties to the Agreement, the Council has determined to modify the terms of its approval to allow for the completion of the Agreement; NOW, THEREFORE, BE IT RESOLVED by the Town of Chapel Hill Town Council, as follows: 1. The Council approves the draft Agreement for Solid Waste Management dated June 1, 1999,previously provided to Council, with the following modifications: (a) Part 5 of the Agreement (relating to the Greene Tract) shall be modified to prohibit the use of the 60-acre portion of the Greene Tract that is to be transferred to the County for burying solid waste or as a C&D landfill, while facilitating the County's use of the property for other solid waste management purposes. The second paragraph of Part 5 shall be amended to read substantially as follows: Chapel Hill, Carrboro and the County (the "Greene Tract Owners") will transfer to the County title to that portion of the Greene Tract described on Exhibit E, which contains approximately sixty acres. The County may use the property described on Exhibit E for System purposes. The deed to the County for such 60- acre portion (a) shall contain a restriction prohibiting the use of that property for burying solid waste or as a C&D landfill, and (b) shall expressly allow other solid waste management uses of the property (including, but not limited to, use as a transfer station or a materials recovery facility. Chapel Hill agrees to begin, and states its current intent to complete, the process to make such other solid waste uses of this property permitted uses of the property (that is, subject to staff-level site plan and similar reviews but not subject to special use permit or other similar processes). (b) The Agreement shall have additional modifications to describe more explicitly the integrated solid waste management plan that the parties have already adopted and to affirm the goals of the plan (including the goals for the reduction of the solid waste stream), while acknowledging the County's discretion to change the plan to match system resources and requirements. Toward that end: (i) The Agreement shall be amended by adding a new definition of "Integrated Solid Waste Management Plan" substantially as follows: 2 27 "Integrated Solid Waste Management Plan" means the report submitted pursuant to law to State authorities that described the long-term plan for solid waste management, which the County, as designated lead agency, filed on behalf of the County and the Towns. The Integrated Solid Waste Management Plan includes goals to reduce waste landfilled per person by 45% by 2001 and 61% by 2006 when compared with the 1991-92 amount of 1.36 tons per person. The Parties have approved this Plan and adopted its framework by resolutions adopted (a) by Carrboro on June 24, 1997, (b) by Chapel Hill on June 9, 1997, (c) by Hillsborough on June 17, 1997, and(d) by the County on June 30, 1997. (ii) The Agreement shall be further amended by revising the definition of "Solid Waste Management Plan and Policies"to read substantially as follows: "Solid Waste Management Plan and Policies" means the combination of(a) the Integrated Solid Waste Management Plan and all future modifications to that Plan, and (b) all solid waste management policies related to the System and coordinated solid waste management for the County, the Towns and the persons and organizations in their jurisdictions, as the same may exist from time to time (including all such policies in effect as of the date of this Agreement). The term "Solid Waste Management Plan and Policies" thereby encompasses all policy choices, as in effect from time to time, related to the management and operation of the System, ranging (for example) from the goal for overall solid waste reduction down to the hours of landfill operation and the price of mulch. (iii) Finally, the Agreement shall be further amended by adding a new paragraph in substantially the following form to the opening of Part 4, immediately preceding the paragraph captioned"System will be operated as an enterprise fund." The Integrated Solid Waste Management Plan includes, among other things, goals for the reduction of the overall solid waste stream. The Parties affirm on the date of this Agreement their commitment to the solid waste reduction goals set out in the Integrated Solid Waste Management Plan. The Parties agree, however, that the County is ultimately responsible for balancing the available resources and the demands on the System. The Parties acknowledge and agree that the County must therefore have sufficient authority to adjust either the resources available to the System or the requirements of the Solid Waste Management Plan and Policies, or both,to achieve the necessary balance. 2. The Council authorizes the Mayor to execute and deliver the final form of the Agreement for Solid Waste Management. The final form of the Agreement shall be in substantially the form of(a) the draft dated June 1, 1999, with (b) the modifications described above. 3 28 3. The Council recognizes that the June 1 draft of the Agreement contains detailed provisions for the current co-owners of the Greene Tract to bargain together in good faith and 1 with all due diligence, and to use their respective best efforts, to determine an ultimate use or disposition of the remainder of the Greene Tract as soon as possible and in any event by June 30, 2001. The Council accepts those provisions. 4. The Mayor is authorized to accept minor additional adjustments if proposed by the County which are consistent with the spirit of the Council's discussion of June 21, 1999. 5. Resolution R-25 adopted June 14, 1999, is repealed to the extent of its conflict with this resolution. This the 21s`day of June, 1999.