HomeMy WebLinkAboutAgenda - 09-20-2022; 8-c - Amendment to the Water and Sewer Facilities Agreement with the Town of Hillsborough 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: September 20, 2022
Action Agenda
Item No. 8-c
SUBJECT: Amendment to the Water and Sewer Facilities Agreement with the Town of
Hillsborough
DEPARTMENT: County Manager
ATTACHMENT(S): INFORMATION CONTACT:
First Amendment to the Agreement
2017 Agreement Travis Myren, 919-245-2308
PURPOSE: To approve an amendment to the Water and Sewer Facilities Agreement with the
Town of Hillsborough to clarify terms and extend the agreement through December 31, 2022 to
preserve the County's water and sewer capacity reservations while new agreements are created
to provide water and sewer service to the Hillsborough Economic Development District (EDD).
BACKGROUND: In 2017, the Town and County entered a water and sewer facilities agreement
to extend water and sewer service under Interstate 40 to facilitate economic development in the
Hillsborough EDD. The County and the Town partnered on the design and engineering services
for this service extension. However, construction bids received in 2019 were significantly over
budget, and the County subsequently paused the project as staff evaluated alternatives to
decrease the cost. The 2017 agreement is due to expire at the end of September 2022.
In October 2020, the County approved a conditional zoning atlas amendment for the Research
Triangle Logistics Park (RTLP) to develop property in the Hillsborough Economic Development
District that would be served by this water and sewer extension. During this time, the Town of
Hillsborough also updated its utility modeling and has determined that in order for this property to
be developed, the Town will require a public water line loop to be installed to connect with the
Town's existing water infrastructure at New Grady Brown School Road. The water line loop is
required to maintain sufficient pressure and redundancy in the public system.
The proposed First Amendment clarifies that this public water line loop will be required in order
for development to proceed at the RTLP site. The amendment also clarifies that the County would
be responsible for the cost of the public water line loop if the County proceeds with installing the
public water and sewer lines.
However, the primary purpose of the agreement is to provide a short extension that preserves the
County's water and sewer capacity reservation of 108,000 gallons per day that will be needed to
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serve the RTLP site while the County works with the developer and the Town on a new framework
to extend public utilities to the EDD.
The Town of Hillsborough Board of Commissioners approved the amendment on September 12,
2022.
FINANCIAL IMPACT: The proposed amendment does not have a direct financial impact. If the
County proceeds with the project, another round of bids would need to be solicited and the Board
would consider funding the project. If the developer is responsible for project implementation, the
developer may request financial participation from the County.
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to
this item:
• GOAL: ENSURE ECONOMIC SELF-SUFFICIENCY
The creation and preservation of infrastructure, policies, programs and funding necessary
for residents to provide shelter, food, clothing and medical care for themselves and their
dependents.
ENVIRONMENTAL IMPACT: The following Orange County Environmental Responsibility Goal
impact is applicable to this item:
• RESULTANT IMPACT ON NATURAL RESOURCES AND AIR QUALITY
Assess and where possible mitigate adverse impacts created to the natural resources of the
site and adjoining area. Minimize production of greenhouse gases.
RECOMMENDATION(S): The Manager recommends that the Board approve the First
Amendment to the Water and Sewer Facilities Agreement with the Town of Hillsborough and
authorize the County Manager to sign the amendment.
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FIRST AMENDMENT TO INTERLOCAL AGREEMENT
BETWEEN ORANGE COUNTY AND THE TOWN OF
HILLSBOROUGH FOR CONSTRUCTION AND OPERATION
OF WATER AND SEWER FACILITIES IN THE
HILLSBOROUGH AREA ECONOMIC DEVELOPMENT
DISTRICT OF ORANGE COUNTY
This is the First Amendment ("First Amendment") to the "Interlocal Agreemenl Between
Orange County and the Town of Hillsborough for Construction and Operation of Water and
Sewer Facilities in the Hillsborough Area Economic Development District of Orange
County" (the "Interlocal Agreement") which Interlocal Agreement is dated, made, and
entered into as of the 25ffi day of September,2017,by the Town of Hillsborough, a North
Carolina municipal corporation ("Hillsborough,""Town" or"Town of Hillsborough") and
Orange County, a North Carolina political subdivision ("County," "Orange" or"Orange
County").
This First Amendment is entered into as of the_day of September, 2022.
RECITALS
WHEREAS the Town and the County entered into the Interlocal Agreement dated September 25,
2017; and
WHEREAS the Interlocal Agreement has a tern of five (5)years which will expire on September
25,2022 unless further extended by mutual agreement of the Town and the County; and
WHEREAS the purposes stated in the Interlocal Agreement have not yet been accomplished,but
the Town and the County continue to work toward accomplishing those purposes and, therefore,
desire to extend the term of the Interlocal Agreement as set forth herein and to otherwise amend
the Interlocal Agreement as set forth in this First Amendment.
NOW, THEREFORE,based on the foregoing premises and the mutual promises stated herein, and
for other good and valuable consideration the receipt and sufficiency of which are acknowledged
by the Town and the County, it is agreed as follow
1. With respect to paragraph 3 of the Interlocal Agreement, entitled"Construction", the Town
of Hillsborough will pay only its pro-rate share of engineering services for those sections of
the water infrastructure lying outside the boundaries of the County's Economic Development
zone, and the County will pay its pro-rate share of engineering services for those sections of
the water and/or sewer infrastructure lying within the County's Economic Development
Zone. The County will also pay the full cost of construction and construction engineering
and inspection for the water"loop" line proposed to connect the water line serving the
County's Economic Development Zone to the Town's existing water infrastructure located in
or adjacent to New Grady Brown School Road in order to ensure sufficient water pressure
and redundancy to accommodate the anticipated intensity of development in the County's
Economic Development Zone.
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2. With respect to paragraph 12 of the Interlocal Agreement, the term of the Interlocal
Agreement, as amended by this First Amendment, shall be extended until midnight on
December 31, 2022, so that the reservation of water capacity and sewer capacity (108,000
gallons per day, each) as set forth in paragraph 4 of the Interlocal Agreement shall remain in
effect until midnight on December 31, 2022 unless sooner terminated or further extended by
written agreement of the parties. Provided,however, if the Town schedules a public hearing
to consider the voluntary annexation of an area within the County Economic Development
Zone before December 31, 2022, then the Interlocal Agreement as amended by this First
Amendment shall terminate without any further action by the Town of the County.
3. Except as expressly amended by this First Amendment, the terms of the Interlocal
Agreement shall remain in full force an effect.
AGREED TO AS OF the day of September, 2022.
ORANGE COUNTY, a North Carolina County
BY:
TOWN OF HILLSBOROUGH,
A North Carolina municipality
BY:
INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTYAND THE TOWN OF HILLSBOROUGHFOR CONSTRUCTION AND
OPERATION OF WATER AND SEWER FACILITIES INTIIE HILLSBOROUGHAREA ECONOMIC DEVELOPMENT DISTRICT OF
ORANGE COUNTY
INTERLOCAL AGREEMENT
BETWEEN ORANGE COUNTY AND THE TOWN OF
HILLSBOROUGH FOR CONSTRUCTION AND OPERATION
OF WATER AND SEWER FACILITIES IN THE
HILLSBOROUGH AREA ECONOMIC DEVELOPMENT
DISTRICT OF ORANGE COUNTY
This agreement is dated, made, and entered into as of the day of�� , 20 '� , by
the Town of Hillsborough, a North Carolina municipal corporation ("Hillsborough, "Town" or
"Town of Hillsborough") and Orange County, a North Carolina political subdivision ("County,"
"Orange" or "Orange County").
Purposes.The purposes of this agreement are(1) to further the economic development potential of land
identified by Orange County and the Town of Hillsborough in their respective planning documents as
particularly suitable for industrial and business development,as well as to promote the public health and
safety of residents within the area,and(2)to accomplish the design,construction,and operation of water
and sewer facilities within the Hillsborough Area Economic Development District("County EDD").
i. Definitions.
Year-July 1-June 30
Zone-The Hillsborough Area Economic Development District located around the
Interstate 40 interchange with Churton Street (Old NC 86), shown in greater detail by the
map titled "Hillsborough Area Economic Development District Utility Service
Boundary" and attached as Exhibit A.
Water and Wastewater Utility Agreement- an agreement between at least two
parties setting forth conditions, including but not limited to utility service, construction,
ownership and operation.
2. Engineering_Design and Firm Selection. Orange County will solicit and receive proposals for
the design of water and/or sewer infrastructure to serve the County EDD. A representative
from the Town of Hillsborough will be part of the selection team. Before awarding contracts
for such design, Orange County will provide the Town of Hillsborough with the proposals
and other responses to the request for proposals so that the Town of Hillsborough may review
and comment to Orange County regarding the selection of the designer(s). Orange County
will then proceed to negotiate the professional fees with the designer(s). Orange County will
not select any designer to which the Town of Hillsborough objects based on the qualifications.
If the Town of Hillsborough does not object within a reasonable time (10 days after Town of
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INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTYAND THE TOWN OF HILLSBOROUGHFOR CONSTRUCTION AND
OPERATION OF WATER AND SEWER FACILITIES IN THE HILLSBOROUGH AREA ECONOMIC DEVELOPMENT DISTRICT OF
ORANGE COUNTY
Hillsborough's receipt of a proposal and/or other response to Orange County's request for
proposals)to a designer, Orange County may award a contract to the designer for such design.
3. Construction. Orange County will solicit bids for the construction of the water and sewer
infrastructure. Orange County will share the proposals with the Town of Hillsborough before
awarding any bid or contract for construction of the infrastructure. The Town of Hillsborough
will pay the cost of construction and pro-rata share of the related engineering and construction
engineering & inspection services for those sections of the water and/or sewer infrastructure
lying outside the county economic development zone and Orange County will pay the cost of
construction and pro-rata share of the related engineering and inspection services for those
sections of the water and/or sewer infrastructure lying within the county economic development
zone. If the Town of Hillsborough does not choose to extend and pay for the aforesaid sections
of.the .infrastructure and acceptable design alternatives exist, the remaining aspects of the
project can continue and terminate at the EDD land use line with the infrastructure
improvements solely financed by Orange County. By authorizing their respective managers to
sign this agreement, the parties' governing bodies also authorize them to agree to suspend or
abandon the process if the managers jointly determine it is prudent to do so. If the managers do
not jointly agree it is prudent to suspend or abandon the process, it is agreed that suspension or
abandonment. will not be affected unless the parties' governing bodies jointly agree to suspend
or abandon the process. Except as otherwise provided herein, should either party unilaterally
suspend or abandon the process, such party shall be responsible for the costs incurred pursuant
to this Agreement pro-rated to the time of suspension or abandonment.
4. New Development and Buildings. Non-Residential development shall be consistent with the
joint land use plan and county zoning. Industrial or commercial water and sewer connections
and other public uses shall be subject to the utility approval of the Town of Hillsborough
regardless of whether the development site(s) are annexed. Provided, however, such approval
shall not be unreasonably withheld and shall be based on the Town's determination of
availability of capacity in the Town's water and sanitary sewer systems, the ability of the
Town's water and sewer systems to provide service within the Town's entire service area, and
consistency with the Town's adopted comprehensive plan. All water and sewer connection
approvals shall take into consideration the resources available to the Town of Hillsborough
and shall be consistent with the Water and Sewer Management Planning and Boundary
Agreement Map (WASMPBA, see Exhibit B). A reservation of 108,000 gallons per day
(GPD) sewer capacity and 108,000 GPD water capacity will be made available to subject
INTERLOCAL AGREEMENT BETWEEN ORANGE CO UAW AND THE TOWN OF HILLSBORO UGHFOR CONSTRUCTION.AND 7
OPERATION OF WATER AND SEWER FACILIT7ESIN THE HILLSBOROUGH AREA ECONOMICDEVELOPMENT DISTRICT OF
ORANGE COUNTY
properties for up to 5 years after the date of execution of this agreement. The Town of
Hillsborough acknowledges that industrial, office, and commercial uses are intended within
the County EDD and that such uses, if permitted by Orange County (for those projects not
slated for immediate and/or delayed annexation), will be served subject to available capacity
and other factors stated above.
The reservation is made for a period of 5 years and may be extended by written agreement of
the Town for up to an additional 5 years upon written request made to the Town of
Hillsborough prior to expiration of the initial 5 year period. If a Town of Hillsborough utility
agreement uses part of this reservation then the reservation amount is reduced unless
otherwise requested and approved. This agreement is not intended to mandate annexation nor
exclude the potential for the project to remain in the County's planning jurisdiction. If the
project remains in the County's planning jurisdiction, the water and sewer service utility
agreement between the developer and the Town of Hillsborough will be accompanied by a
voluntary annexation agreement to be acted upon when Orange County and the Town of
Hillsborough agree to the timing of such annexation. This would include the preparation and
review of an annexation report prepared for and submitted to the Town of Hillsborough by a
developer.
When development occurs in the jurisdiction as noted in Exhibit A, the land use parameters
noted within the Orange County/Town of Hillsborough joint land use plan will act as guidance
to zoning.
5. Construction Standards. In all respects, except to the extent otherwise stated in this agreement,
the construction will be done in accordance with (i) Hillsborough utility standards,
requirements, specifications, and procedures, including approvals of plans and permits,
conducting inspections, requiring tests and certifications, and requiring record (as-built)
drawings, and (ii) any applicable federal and state standards. Notwithstanding any other part
or provision of this agreement should any such approvals or permits be withheld or
unobtainable, this agreement may be terminated by Orange County, at no cost and with no
further liability or obligation to Orange County, upon written notice to the Town of
Hillsborough. In the event of such termination, the County and the Town shall each be
responsible for the respective costs they incurred pursuant to this agreement up until the time of
termination.
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INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTYAND THE TOWN OF HILLSBOROUGHFOR CONSTRUCTION AND
OPERATION OF WATER AND SEWER FACILITIES IN THE HILLSBOROUGH AREA ECONOMIC DEVELOPMENT DISTRICT OF
ORANGE COUNTY
6. Ownership of and Responsibility for Infrastructure. Upon final completion of
construction, and subject to any maintenance and warranty
requirements included in the construction contract for the
infrastructure, the Town of Hillsborough will be the owner of and responsible for the
operation and maintenance of the infrastructure constructed under the construction contracts.
All construction contracts shall provide for the indemnification and defense by the
contractors of both Orange County and the Town of Hillsborough.
7. Fees and Charges. As long as a particular property is located outside the Town :of
Hillsborough's corporate limits, the Town of Hillsborough will impose, process, and collect
all fees and charges with respect to that particular property, including acreage fees,
connection charges, frontage charges, capacity charges, and utility rates in accordance with ..
then-existing Town policies and consistent with State law. These fees and charges shall be in
accordance with the Town of Hillsborough's charges on other locations outside the Town's
corporate limits. Except to the extent specified otherwise, Orange County will have no right
to any of those fees and charges, and nothing in this agreement will affect the use or
disposition of those fees and charges unless defined in a reimbursement clause in this
agreement or by supplemental agreement.
8. Reimbursement to Orange County. The acreage fees and/or frontage charges collected by the
Town of Hillsborough, if any, from property situated within the County EDD (as shown on
Exhibit A) will be used to reimburse Orange County for the design and construction of
infrastructure in the County EDD. Collectively, these fees collected from development.inside
the County EDD will be termed "Dedicated Receipts" and will be paid to Orange County by
Hillsborough. Such utility infrastructure reimbursement fees, if employed in this specific area,
will be jointly developed and be implemented within respective development ordinances. No
other fees or charges collected by Hillsborough, such as capacity and connection charges, will
be used for that purpose. If at any time Hillsborough's acreage and/or frontage fees are held to
be unlawful or unauthorized, Hillsborough agrees to indemnify Orange County from and against
any and all claims related to acreage fee payments made to Orange County by Hillsborough.
This indemnification requirement shall survive any termination of this Agreement.
9. Nondiscriminatory Policies. The Town of Hillsborough will not establish policies that impose
INTERLOCAL AGREEMENT BETWEEN ORANGE COMYAND THE TOWN OF HILLSBOROUGHFOR CONSTRUCTION AND 9
OPERATION OF WATER AND SEWER FACILIHESIN THE HILLSBOROUGH AREA ECONOMIC DEVELOPMENT DISTRICT OF
ORANGE COUNTY
a level of water and sewer service in the County EDD that is inferior to that provided to
similarly situated users of Hillsborough water and sewer services.
10. Annexation. The Town of Hillsborough may enter into agreements with developers and
property owners that comply with Town of Hillsborough requirements related to annexation,
including, but not limited to, that they will not seek annexation by any municipality other than
the Town of Hillsborough; that they will petition for annexation when requested by the Town
of Hillsborough; the Town of Hillsborough can delay annexation; and that they will be subject
to remedies for violating the annexation-related provisions.
11. Regulations. The Town of Hillsborough shall have the authority to protect and regulate the
water and sewer systems and its users in the County EDD, including water use restrictions and
regulations regarding discharges into the wastewater system.
12. Duration. The term of this Agreement shall be 5 years, unless terminated earlier by mutual
agreement. On such termination, all obligations that are still executory on both sides are
discharged but any right based on prior breach or performance survives. The term of this
Agreement may be extended for additional 5 year terms upon written agreement of the
governing bodies of each party. The governing body of each party hereto has determined the
duration provided in this paragraph to be reasonable.
13. Appointment of Personnel. The Town Manager shall designate persons to carry out the
Town of Hillsborough's obligations under this agreement. The County Manager shall
designate persons to carry out Orange County obligations under this Agreement
14. Amendment and Termination. This Agreement may be amended or terminated by agreement
of the parties. An amendment is not valid unless signed by both parties and wholly in
accordance with requirements of the law. An amendment is not enforceable against the
Town of Hillsborough unless it is signed by its Town Manager, or a deputy or assistant Town
Manager and/or Mayor. An amendment is not enforceable against Orange County unless signed
by the County Manager or Deputy County Manager and/or Chair of the Board of County
Commissioners.
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INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTYAND THE TOWN OF HILLSBOROUGHFOR CONSTRUCTION AND
OPERATION OF WATER AND SEWER FACILITIES IN THE HILLSBOROUGH AREA ECONOMIC DEVELOPMENT DISTRICT OF
ORANGE COUNTY
15. Notice.
a) All notices and other communications required or permitted by this agreement shall be
in writing and shall be given either by personal delivery, UPS, Federal Express, or
certified United States mail, return receipt requested, addressed as follows. The parties
are requested to send a copy by email.
To Town of Hillsborough:
Eric Peterson
Town Manager
Town of Hillsborough
101 E. Orange St.
Hillsborough,NC 27278
Email: eric.peterson@hillsboroughnc.gov
To Orange County:
Bonnie B. Hammersley
Orange County Manager
200 S. Cameron Street
P.O. Box 8181
Hillsborough, NC 27278
Email: bhammersleygoran eg countync. og_v
b) A change of address, fax number, or person to receive notice may be made by either
party by notice given to the other party. Any notice or other communication under this
agreement shall be deemed given and sent at the time of actual delivery, if it is
personally delivered. If the notice or other communication is sent by United States mail,
it shall be deemed received upon the third calendar day following the day on which such
notice or other communication is deposited with the United States Postal Service or
upon actual delivery, whichever first occurs.
16. No Third Party Rights Created. This agreement is intended for the benefit of the two parties
and not any other person and no rights or benefits are created for or granted to any third
party by this agreement.
[SIGNATURE PAGE TO FOLLOW]
INTERLOCAL AGREEMENT BETWEEN ORANGE COUNTYAND THE TOWN OF HILLSBOROUGHFOR CONSTRUCTION AND
OPERATION OF WATER AND SEWER FACILPTIES IN THE HILLSBORO UGH A REA ECONOMIC DEVELOPMENT DISTRICT OFA 1
ORANGE COUNTY
Town of Hillsborou h Orange County
a
Mayor Aairof jffoard oSftommissioners
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal
Contl Ac
Chie F nancial Officer, range County I in 1K Director,Town of Hillsboro