HomeMy WebLinkAbout2024-548-E-DEAPR-Property Ownwer Qualification Agreement-Dorian Krysta James unassigned address on Maple Creek farm lane Cedar Grove NC 27231 PIN 9848282712July 2024 1
PROPERTY OWNER QUALIFICATION AGREEMENT
This Property Owner Qualification Agreement (hereinafter “Agreement”), made and entered into
this 30th day of July, 2024 (“Effective Date”) by and between Orange Soil and Water Conservation
District (hereinafter, the “Orange SWCD) and Dorian Krysta James, (hereinafter, the "Property
Owner").
WITNESSETH:
That Orange SWCD and Property Owner for the consideration herein named, do hereby agree as
follows:
1. Services
a. Scope. This Agreement is for the qualification, provision and funding of professional
services to be rendered by a professional (“Provider(s)”) at the Property Owner’s property
identified as PIN(s) (9848282712), at an unassigned address on Maple Creek Farm
Lane Cedar Grove, NC 27231 (hereinafter, the “Property”). These professional services
are in respect to the 2024 Streamflow Rehabilitation Assistance Program (StRAP) funds
allocated from the North Carolina Department of Agriculture and Consumer Services to
Orange SWCD (the “Work”). The scope of work is outlined in “Scope of Work”,
Attachment A and is limited to the segment of stream as outlined in the attached “Stream
Map”, Attachment B. StRAP legislation is included as a reference for program parameters
in “Strap Legislation”, Attachment C.
2. Responsibilities of the Property Owner
a. Cooperation with Orange SWCD. The Property Owner shall fully cooperate with Orange
SWCD and provide all necessary or reasonable access to coordinate the Work. Property
Owner has or shall provide all requisite information.
b. Cooperation with Provider(s). The Property Owner shall provide a right of entry and all
necessary or reasonable access to allow the Provider(s) to complete the Work.
3. Responsibilities of Orange SWCD
a. Cooperation and Coordination. Orange SWCD has designated Jessica Perrin and David
Latta to act as the representative with respect to the Work and shall have the authority to
render decisions within guidelines and shall be available during working hours as often
as may be reasonably required to render decisions and to furnish information.
b. Contracting and Funding. Orange SWCD will contract directly with the Provider(s)(s) to
complete the Work.
Contracts for the stream debris removal and associated work shall clearly state that Orange
SWCD shall not have any financial responsibility or liability beyond providing the
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financial assistance as limited by the allocation of StRAP funds to Orange SWCD and
arranging for payment to the Provider(s) (other than any permitting or inspections
responsibilities they may have in their governmental capacities). Said contracts shall
provide that the Provider(s) shall indemnify and hold harmless the Parties for any and all
claims arising out of the contractor’s work for the Property Owner.
4. Indemnity
a. Indemnity. The Property Owner agrees, without limitation, to defend, indemnify and hold
harmless Orange County and Orange SWCD from all loss, liability, claims or expense,
including attorney's fees, arising out of or related to the Work and arising from property
damage or bodily injury including death to any person or persons caused in whole or in
part by the negligence or misconduct of either the Property Owner or Provider(s) except
to the extent same are caused by the negligence or willful misconduct of Orange County.
Neither Orange County nor Orange SWCD shall have any financial responsibility or
liability beyond providing the financial assistance (as limited by the allocation of
Streamflow Rehabilitation Assistance Program funds to Orange SWCD) and arranging for
payment to the contracted professional (other than any permitting or inspections
responsibilities they may have in their governmental capacities). It is the intent of this
provision to require the Property Owner to indemnify Orange County and Orange SWCD
to the fullest extent permitted under North Carolina law.
5. Third Party Rights
a. Third Party Rights. Nothing in this Agreement is intended to create, grant, or convey rights
in or to any third party. Nothing herein is enforceable by any third party and the rights of
the parties hereto to terminate or amend this Agreement are not subject to the consent of
any third party.
6. Amendments to the Agreement
a. Changes. Changes shall be made by a written Amendment to this Agreement executed by
Orange SWCD and the Property Owner.
7. Termination
a. Termination for Convenience. This Agreement may be terminated without cause by
Orange SWCD for its convenience upon seven (7) days prior written notice to the Property
Owner.
b. Waiver. The payment of any sums by Orange SWCD under this Agreement or the failure
of Orange SWCD to require compliance by the Property Owner with any provisions of
this Agreement or the waiver by Orange SWCD of any breach of this Agreement shall not
constitute a waiver of any claim for damages by Orange SWCD for any breach of this
Agreement or a waiver of any other required compliance with this Agreement.
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c. Suspension. Orange SWCD may suspend this Agreement at any time for Orange SWCD’s
convenience.
8. Additional Provisions
a. Limitation and Assignment. Orange SWCD and the Property Owner each bind themselves,
their successors, assigns, and legal representatives to the terms of this Agreement. Neither
Orange SWCD nor the Property Owner shall assign or transfer its interest in this
Agreement without the written consent of the other.
b. Governing Law. This Agreement and the duties, responsibilities, obligations, and rights of
respective parties hereunder shall be governed by the laws of the State of North Carolina.
c. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with
respect to any provision of, or the performance or non-performance of, this Agreement
shall be brought in the General Court of Justice of North Carolina sitting in Orange County,
North Carolina. It is agreed by the parties that no other court shall have jurisdiction or
venue with respect to such suits or actions. Binding arbitration may not be initiated by
either Party, however, the Parties may agree to nonbinding mediation of any dispute prior
to the bringing of such suit or action.
d. Entire Agreement. This Agreement represents the entire and integrated agreement between
Orange SWCD and the Property Owner and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be amended
only by written instrument signed by both parties. Modifications may be evidenced by
facsimile signatures.
e. Severability. If any provision of this Agreement is held as a matter of law to be
unenforceable, the remainder of this Agreement shall be valid and binding upon the
Parties.
f. Non-Appropriation. Property Owner acknowledges that Orange County and Orange
SWCD are governmental entities, and the validity of this Agreement is based upon the
availability of StRAP funding under the authority of its statutory mandate.
In the event that StRAP funds are unavailable for the performance of Orange SWCD’s
obligations under this Agreement, then this Agreement shall automatically expire without
penalty to Orange SWCD or Orange County immediately upon written notice to Property
Owner of the unavailability of funds.
In the event of a change in Orange SWCD or Orange County’s statutory authority, mandate
and/or mandated functions, by state and/or federal legislative or regulatory action, which
adversely affects either Orange SWCD or Orange County’s authority to continue its
obligations under this Agreement, then this Agreement shall automatically terminate
without penalty to Orange SWCD or Orange County upon written notice to Property Owner
of such limitation or change in Orange SWCD or Orange County’s legal authority.
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g. Signatures. This Agreement together with any amendments or modifications may be
executed electronically. All electronic signatures affixed hereto evidence the consent of
the Parties to utilize electronic signatures and the intent of the Parties to comply with
Article 11A and Article 40 of North Carolina General Statute Chapter 66.
h.Notices. Any notice required by this Agreement shall be in writing and delivered by
certified or registered mail, return receipt requested to the following:
Attention: Jessica Perrin
Orange SWCD
1020 US 70 West
Hillsborough, NC 27278
Dorian James
5832 Davis Mountain Lane
Snow Camp, NC 27349
IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder set
their hands and seal, all as of the day and year first above written.
ORANGE SOIL AND WATER CONSERVATION DISTRICT:
By: __________________________________ Date: ______________________
Gail Hughes, Orange SWCD Board Chair
PROPERTY OWNER:
By: __________________________________ Date: ______________________
Dorian James
Financial Services
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control
Act:
Office of the Orange County Chief Financial Officer _________________________________ Date: _________
Legal Services
This agreement is approved as to legal form and sufficiency:
Office of Orange County Attorney __________________________________________Date: ________
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9/19/2024
Attachment A, Scope of Work
Background:
The Streamflow Rehabilitation Assistance Program (StRAP) is a new program that provides grants to
projects that help reduce flooding and restore streams across North Carolina. The program was created
by the NC General Assembly, which approved $38 million in funding for StRAP in the budget
appropriations bill for the 2021-2022 fiscal year. StRAP allocates money for projects that protect and
restore the integrity of drainage infrastructure of North Carolina’s waterways. The program is
administered by the state’s Soil & Water Conservation Commission, working closely with the Division of
Soil and Water Conservation within the NC Department of Agriculture and Consumer Services
(NCDA&CS).
Orange Soil and Water Conservation District (Orange SWCD) submitted an application for StRAP funds in
February 2024 per the landowner’s request for assistance. Orange SWCD was allocated funding for a
stream debris removal project at PIN: 9848282712 by NCDA&CS in June 2024.
Scope for StRAP services:
Legislative guidelines for StRAP are outlined in Senate Bill 105, SL 2021-180, 139-65. See “Strap
Legislation”, Attachment C. In summary, vegetative debris are to be removed from the stream channel
and relocated outside of the 100-year floodplain at a mutually agreed upon site on the property by the
Provider. Debris may also be processed in such a manner that the debris would not pose a risk of
blockage or significant impairment of normal streamflow during a subsequent flood event, such as
mulching and chipping where the processed material is left in the floodplain. The specific debris
removal piles and the extent of removal eligible to be determined by Orange SWCD staff. StRAP services
for this project do not include streambank stabilization or stream restoration.
The scope of work at PIN: 9848282712 owned by Dorian James for vegetative debris includes the
stream segment outlined in the “Stream Map”, Attachment B. This is approximately 1,318 linear feet.
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Attachment B, Stream Map
StRAP Project
-Stream Name: Unknown - creek flows into West Fork Eno River (upstream from Lake Orange)
-In Neuse river basin
-Approximately 1,318 linear feet
-PIN: 984828712
-Owner: Dorian James
Legends
creek/stream work
boundary lines
White dots are
blockages.
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Page 34 Session Law 2021-180 Senate Bill 105
(1) Projects that update and prepare transportation infrastructure for storms,
mudslides, and flooding events taking projections of future risk into
consideration.
(2) Risk assessments for critical transportation routes, building on existing and
future reports such as the I-95 and I-40 Flood Resilience Feasibility Study.
(3) Creating community-informed flood risk and vulnerability assessments that
identify resilience gaps and project opportunities for transportation routes in
North Carolina to help maintain vital transportation functions following
flooding events.
SECTION 5.9.(i) North Carolina Insurance Underwriting Association (NCIUA)
Coastal Resilient Roof Grant Pilot Program. NCIUA shall establish the Coastal Resilient Roof
Grant Pilot Program, adopt rules, and award amounts for resilient roof grant applicants under this
pilot program. NCIUA must provide a match of one dollar ($1.00) in non-State funds for one
dollar ($1.00) provided in State grant funds. No eligible structure, as defined by NCIUA rules,
may receive more than three thousand three hundred dollars ($3,300) in State funds under this
pilot program. NCIUA may use matching funds for evaluator costs and grants but shall not use
any of the funds allocated for the pilot program for administrative costs. State funds allocated for
this pilot program that are not encumbered or spent by June 30, 2025, shall revert to the General
Fund. NCIUA will include a report on the pilot program funded by this subsection in the annual
report required by G.S. 58-45-65. The report shall include information on the number of grants
provided, geographical distribution of grants by county, and the average insured value of the
structures receiving grant funding for resiliency improvements under this program. The NCIUA
will provide this portion of its annual report to the Chairs of the Joint Legislative Emergency
Management Oversight Committee and the Fiscal Research Division. The following definitions
apply in this subsection:
(1) Coastal area. Defined in G.S. 58-45-5.
(2) Eligible expense. Costs for the replacement or upgrade of the roof of an
eligible structure when the replacement or upgrade results in the roof meeting
applicable resiliency standards issued by the Institute for Business and Home
Safety or another construction storm resiliency standard that the NCIUA finds
to be equivalent for purposes of reduction of risk of loss to the Coastal
Property Insurance Pool (Pool) established by Article 45 of Chapter 58 of the
General Statutes.
(3) Eligible structure. An eligible residential structure as defined by NCIUA
rules and insured under a policy issued by the NCIUA through the Pool.
SECTION 5.9.(j) Statutory Authority for the Coastal Resilient Roof Grant Pilot
Program. G.S. 58-45-15 reads as rewritten:
"§ 58-45-15. Powers and duties of Association.
The Association shall, pursuant to the provisions of this Article and the plan of operation,
and with respect to the insurance coverages authorized in this Article, have the power on behalf
of its members:
(6)To provide grants for mitigation of risk of loss to policyholders with
premiums, funds appropriated to the Association for that purpose by the
General Assembly, or funds donated or granted to the Association."
SECTION 5.9.(k) Streamflow Rehabilitation Assistance Program. Chapter 139 of
the General Statutes is amended by adding a new Article to read:
"Article 6.
"Streamflow Rehabilitation Assistance Program.
"§ 139-65. Streamflow Rehabilitation Assistance Program.
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Senate Bill 105 Session Law 2021-180 Page 35
(a) Program Established.The Streamflow Rehabilitation Assistance Program is
established. The purpose of the Program shall be to assist an eligible grantee in protecting and
restoring the integrity of drainage infrastructure through routine maintenance to existing streams
and drainage ways by removing blockages caused by accumulated debris or sediment,
stabilization and restoration of streams and streambanks, and for rehabilitation or improvement
of small watershed structural projects constructed pursuant to the Watershed Protection and
Flood Prevention Act of 1954, as amended. Project engineering, permitting, and administrative
costs are eligible for payment through the Program. Program funds may also be used to provide
nonfederal match for related disaster recovery activities funded by the federal government. For
purposes of this section, an "eligible grantee" shall include any of the following:
(1) A Soil and Water Conservation District established under this Chapter.
(2) A political subdivision, including a city, a county, a water or sewer authority
established under Chapter 162A of the General Statutes, a metropolitan or
county water or sewer district established under Chapter 162A of the General
Statutes, a county service district established under Chapter 153A of the
General Statutes, a municipal service district established under Chapter 160A
of the General Statutes, a sanitary district established under Chapter 130A of
the General Statutes, and a drainage district established under Chapter 156 of
the General Statutes.
(3) A nonprofit organization.
(b) Program Administration. The Soil and Water Conservation Commission shall
supervise and administer the Streamflow Rehabilitation Assistance Program as provided in this
section. No more than five percent (5%) of Program funding may be used for administration
costs.
(c) Program Functions. Under the Streamflow Rehabilitation Assistance Program, the
Soil and Water Conservation Commission shall do the following:
(1) Establish criteria to allocate funds to eligible grantees.
(2) Develop a process for soliciting and reviewing applications and for selecting
applicants to participate in the Program.
(3) Adopt temporary and permanent rules as necessary to implement this
Program.
(d) Restriction on Funded Activities. The Commission shall ensure that debris removed
from streams with funds provided under this Article are either removed from the 100-year
floodplain or processed in such a manner that the debris would not pose a risk of blockage or
significant impairment of normal streamflow during a subsequent flood event. For purposes of
this subsection, "100-year floodplain" means any area subject to inundation by the one percent
(1%) annual chance flood event, as indicated on the most recent Flood Insurance Rate Map
prepared by the Federal Emergency Management Agency under the National Flood Insurance
Program.
(e) Report. No later than January 31 of each year, the Division of Soil and Water
Conservation of the Department of Agriculture and Consumer Services shall prepare a
comprehensive report on the implementation of this section. The report shall be submitted to the
Environmental Review Commission and the Fiscal Research Division as a part of the report
required by G.S. 106-850(e)."
SECTION 5.9.(l) Streamflow Rehabilitation Assistance Program. G.S. 14-234(d3)
reads as rewritten:
"(d3) Subsection (a) of this section does not apply to an application for or the receipt of a
grant under the Agriculture Cost Share Program for Nonpoint Source Pollution Control created
pursuant to Article 72 of Chapter 106 of the General Statutes, the Community Conservation
Assistance Program created pursuant to Article 73 of Chapter 106 of the General Statutes, or the
Agricultural Water Resources Assistance Program created pursuant to Article 5 of Chapter 139
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of the General Statutes an exempted public program by a member of the Soil and Water
Conservation Commission if the requirements of G.S. 139-4(e) are met, and does not apply to a
district supervisor of a soil and water conservation district if the requirements of G.S. 139-8(b)
are met. For purposes of this subsection, an exempted public program is any of the following:
(1) The Agriculture Cost Share Program for Nonpoint Source Pollution Control
created pursuant to Article 72 of Chapter 106 of the General Statutes.
(2) The Community Conservation Assistance Program created pursuant to Article
73 of Chapter 106 of the General Statutes.
(3) The Agricultural Water Resources Assistance Program created pursuant to
Article 5 of Chapter 139 of the General Statutes.
(4) The Streamflow Rehabilitation Assistance Program created pursuant to
Article 6 of Chapter 139 of the General Statutes."
SECTION 5.9.(m) Streamflow Rehabilitation Assistance Program. G.S. 139-4(d)
reads as rewritten:
"(d) In addition to the duties and powers hereinafter conferred upon the Soil and Water
Conservation Commission, it shall have the following duties and powers:
(9) To create, implement, and supervise the Agriculture Cost Share Program for
Nonpoint Source Pollution Control created pursuant to Article 72 of Chapter
106 of the General Statutes, the Community Conservation Assistance Program
created pursuant to Article 73 of Chapter 106 of the General Statutes, and the
Agricultural Water Resources Assistance Program created pursuant to Article
5 of this Chapter.Chapter, and the Streamflow Rehabilitation Assistance
Program created pursuant to Article 6 of this Chapter.
(10) To review and approve or disapprove the application of a district supervisor
for a grant under the Agriculture Cost Share Program for Nonpoint Source
Pollution Control, the Community Conservation Assistance Program, or the
Agricultural Water Resources Assistance Program as provided by
G.S. 139-8(b).
SECTION 5.9.(n) Streamflow Rehabilitation Assistance Program. G.S. 139-4(e)
reads as rewritten:
"(e) A member of the Commission or an organization or unit of local government of which
the member is an employee, officer, or elected member of the governing body may apply for and
receive a grant under the Agriculture Cost Share Program for Nonpoint Source Pollution Control,
the Community Conservation Assistance Program, or the Agricultural Water Resources
Assistance Program Program, or the Streamflow Rehabilitation Assistance Program if:
(1) The member does not vote on the application or attempt to influence the
outcome of any action on the application; and
(2) The application is approved by the Commissioner of Agriculture."
SECTION 5.9.(o) Streamflow Rehabilitation Assistance Program. G.S. 139-8(b)
reads as rewritten:
"(b) A district supervisor or an organization or unit of local government of which the
supervisor is an employee, officer, or elected member of the governing body may apply for and
receive a grant under the Agriculture Cost Share Program for Nonpoint Source Pollution Control
created pursuant to Article 72 of Chapter 106 of the General Statutes, the Community
Conservation Assistance Program created pursuant to Article 73 of Chapter 106 of the General
Statutes, or the Agricultural Water Resources Assistance Program created pursuant to Article 5
of this Chapter Chapter, or the Streamflow Rehabilitation Assistance Program created pursuant
to Article 6 of this Chapter if:
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Senate Bill 105 Session Law 2021-180 Page 37
1.(1) The district supervisor does not vote on the application or attempt to influence
the outcome of any action on the application; and
2.(2) The application is approved by the Commission."
SECTION 5.9.(p) North Carolina Office of Recovery and Resiliency Coordination.
Subpart D of Part 5 of Article 13 of Chapter 143B of the General Statutes is amended by adding
a new section to read:
"§ 143B-1041. Interagency coordination.
(a) The Office shall establish an intergovernmental working group composed of
representatives from the Department of Environmental Quality and other relevant State agencies,
local governments, and other stakeholders to identify legislative, economic, jurisdictional, and
other challenges related to stream management and flooding reduction. Beginning January 1,
2022, and biannually thereafter, the Office shall report to the Joint Legislative Commission on
Governmental Operations and the Fiscal Research Division regarding the findings and
recommendations of the working group.
(b) The Office of Recovery and Resiliency and the Division of Emergency Management
of the Department of Public Safety, the Director of the Division of Coastal Management of the
Department of Environmental Quality, and the Secretary of the Department of Transportation, or
their respective designees, shall meet at least quarterly beginning January 1, 2022, in order to
coordinate the grant making and technical assistance activities each agency is carrying out related
to subsection (a) of this section."
SECTION 5.9.(q) Division of Emergency Management Contracting.
G.S. 166A-19.12 is amended by adding two new subdivisions to read:
"(24) The Division may contract for services from vendors specializing in housing,
rehabilitation, or construction on private residential structures funded by State
or federal funds provided to the State as a result of a disaster declared by the
President under the Stafford Act or a disaster declared by the Governor under
G.S. 166A-19.21. Nothing in this subdivision is intended to exempt the
Division from other requirements of Article 8 of Chapter 143 of the General
Statutes.
(25) The Division may contract for services from vendors specializing in housing
elevation, acquisition, demolition, and mitigation reconstruction on private
residential structures to implement the federal Hazard Mitigation Grant
Program on behalf of the State or political subdivisions. Nothing in this
subdivision is intended to exempt the Division from other requirements of
Article 8 of Chapter 143 of the General Statutes."
SECTION 5.9.(r) Clean Water Management Trust Fund Reporting.
G.S. 143B-135.244 reads as rewritten:
"§ 143B-135.244. Clean Water Management Trust Fund: reporting requirement.
The Chair of the Board of Trustees shall report no later than December 1 each year to the
Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the
Environmental Review Commission, the Subcommittees of the House of Representatives and
Senate Appropriations Committees with jurisdiction over natural and economic resources, and
the Fiscal Research Division of the General Assembly regarding the implementation of this Part.
The report shall include a list of the projects awarded grants from the Fund for the previous
12-month period. The list shall include for each project a description of the project, the amount
of the grant awarded for the project, and the total cost of the project. For projects funded for the
purpose set forth in G.S. 143B-135.234(c)(12), the report shall also include the amount of flood
storage capacity enhanced or restored for each project."
SECTION 5.9.(s) Flood Storage Capacity Project Reporting. G.S. 143-214.11A is
amended by adding a new subsection to read:
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