THIS INTERLOCAL AGREEMENT (hereafter AGREEMENT), is made and entered into this ______ day of ________________, 2006 by and between the COUNTY OF WAKE, a political subdivision of the state of North Carolina (hereafter “WAKE COUNTY”), and the COUNTY OF DURHAM, a political subdivision of the state of North Carolina (hereafter “DURHAM COUNTY”), and the TOWN OF CARY, a North Carolina Municipal Corporation (hereafter “CARY”).
WHEREAS, CARY, WAKE COUNTY and the RESEARCH TRIANGLE FOUNDATION (RTF) entered into an Interlocal Agreement on October 28, 2003 to provide water, wastewater and reclaimed water service within the Wake County portion of RTP; and
WHEREAS, Section 5 of the CARY, WAKE COUNTY and RTF Interlocal Agreement defines the responsibilities for design and construction of reclaimed water facilities in the RTP South and surrounding area and CARY has committed to operate and maintain the installed lines and systems, and
WHEREAS, CARY has an agreement with Durham County for wastewater treatment service which documents a desire to work together on reclaimed water opportunities; and
WHEREAS, WAKE COUNTY has been awarded federal grant money on behalf of WAKE COUNTY, DURHAM COUNTY and CARY to design and build reclaimed water facilities in order to reduce effluent wastewater discharge into Jordan Lake; and
WHEREAS, DURHAM COUNTY owns and operates a wastewater treatment facility know as the Triangle Wastewater Treatment Plant (hereafter “Triangle WWTP”) which discharges its treated effluent into Northeast Creek, a tributary of Jordan Lake; and
WHEREAS, WAKE COUNTY, DURHAM COUNTY and CARY desire to work together to develop reclaimed water facilities to serve water utility customers in RTP and other parts of Wake and Durham Counties; and
WHEREAS, upon construction of reclaimed water facilities by WAKE COUNTY, DURHAM COUNTY and CARY, DURHAM COUNTY commits to provide reclaimed water to CARY at a sufficient volume to be specified in a future operation and maintenance agreement between CARY and DURHAM COUNTY, and
WHEREAS, this AGREEMENT is authorized by the provisions of NCGS Chapter 160A, Article 20, Sections 460-464 and Chapter 160A, Article 16, Sections 311-323, and Chapter 153A, Sections 158 & 278.
NOW THEREFORE, in consideration of the premises and the respective rights, powers, duties, and obligations hereinafter set forth, the parties agree as follows:
The purpose of this AGREEMENT is to set forth the terms and conditions pursuant to which WAKE COUNTY, DURHAM COUNTY and CARY will share federal/state grant funds and loan funds in order to develop plans to treat, store, pump and distribute reclaimed wastewater. The parties acknowledge and agree that subsequent amendment(s) to this AGREEMENT will be required for Construction, Operation and Maintenance of the reclaimed water system.
· EFFECTIVE DATE OF AGREEMENT
This AGREEMENT shall become binding upon the parties hereto upon the execution and ratification of this AGREEMENT by the governing boards of WAKE COUNTY, DURHAM COUNTY and CARY.
· WAKE COUNTY OBLIGATIONS AND REPRESENTATIONS
a. WAKE COUNTY will serve as the lead agency for the purposes of acquiring and distributing federal and state funds as appropriated and received on the Jordan Lake Water Reclamation and Reuse Project (hereinafter called the Project). This includes annual requests to the federal/state government for additional grant funds. Upon appropriation of funds, WAKE COUNTY will coordinate the development of grant applications in order to allow distribution and receipt of grant funds. Upon receipt of grant funds, WAKE COUNTY will distribute approved funds to CARY or DURHAM COUNTY as appropriate.
b. WAKE COUNTY will serve as the lead agency for the purposes of the development of environmental documents required by the National Environmental Policy Act (NEPA) and the seeking of construction related permits.
c. WAKE COUNTY will serve as the lead agency for the purpose of seeking and selecting a design consultant for the portion of the Project within Wake County. The consultant will be selected through a joint process with representation from both CARY and WAKE COUNTY. WAKE COUNTY will contract with the selected design firm for the portion of the work within Wake County and the respective environmental work. WAKE COUNTY will bill CARY on a monthly basis for the design work, including both local and federal share funds.
d. WAKE COUNTY commits to pursuing construction of this Project subject to available local funds and a similar commitment from DURHAM COUNTY and CARY.
· DURHAM COUNTY OBLIGATIONS AND REPRESENTATIONS
a. DURHAM COUNTY will be responsible for appropriately billing WAKE COUNTY for reimbursement of federal/state funds spent associated with the Project. Further, if any portion of the reimbursement is questioned by the N.C. Department of Environment and Natural Resources (DENR) or the U.S. Environmental Protection Agency (EPA), DURHAM COUNTY will provide any requested documentation, and in the event any billing is disallowed DURHAM COUNTY will pay same from local funds.
b. DURHAM COUNTY will be supportive of WAKE COUNTY’s efforts to seek additional funding at both federal and state levels.
c. DURHAM COUNTY will be responsible for the design of treatment plant modifications and the conveyance facilities to deliver reclaimed water to the Durham County/Wake County line. DURHAM COUNTY will be responsible for acquiring any operational related permits associated with the operation of the reclaimed water system within Durham County.
d. DURHAM COUNTY will participate in the development of necessary environmental and permit documents associated with the Project within Durham County. DURHAM COUNTY will be financially responsible for the share of costs associated with the environmental and permit efforts for facilities within Durham County, including, but not limited to, consultant and permit fees.
e. DURHAM COUNTY commits to the provision of reclaimed water for use by WAKE COUNTY and CARY upon completion of construction of the Project. Specifics of this commitment will be defined in a future operations and maintenance agreement between CARY and DURHAM COUNTY.
f. DURHAM COUNTY commits to pursuing construction of this Project within Durham County subject to available local funds and a similar commitment from WAKE COUNTY and CARY.
· CARY OBLIGATIONS AND REPRESENTATIONS
a. CARY will be responsible for appropriately billing WAKE COUNTY for reimbursement of federal/state funds spent associated with the Project. Further, if any portion of the reimbursement is questioned by DENR or EPA, CARY will provide any requested documentation, and in the event any billing is disallowed CARY will pay same from local funds.
b. CARY will be supportive of WAKE COUNTY’s efforts to seek additional funding at both federal and state levels.
c. CARY will be financially responsible for the design of waterline work to get from the Durham County/Wake County line to RTP South and any other locations within CARY’s municipal jurisdiction. CARY will jointly select the consultant for their portion of the Project with WAKE COUNTY (see 3.C).
d. CARY will participate in the development of necessary environmental and permit documents associated with the Project. CARY will be financially responsible for its share of costs associated with the environmental and permit efforts, including, but not limited to, consultant and permit fees.
e. CARY commits to provide reclaimed water to its customers upon completion of construction of the project. Specifics of this commitment will be defined in a future operations and maintenance agreement between CARY and DURHAM COUNTY.
f. CARY commits to pursuing construction of the portion of the Project that is part of the Town of Cary Reclaimed Water System subject to available local funds and a similar commitment from WAKE COUNTY and DURHAM COUNTY.
· FINANCIAL COMMITMENT
a. WAKE COUNTY has received a commitment from the federal government in the form of a grant in the amount of $3 million less federal and state standard deductions (herafter “Grant Funds” or “Grant”).
b. Estimated costs for design and other pre-construction costs for the Project are $1,669,435 (hereafter “Projected Project Costs”). The Grant provides that only 55 percent of eligible Projected Project Costs may be paid for with Grant Funds. The remaining Projected Project Costs shall be paid by WAKE COUNTY, DURHAM COUNTY and CARY. Based upon current projections, the following table shows the anticipated Projected Project Costs and reimbursement amounts for each party:
This AGREEMENT may be terminated only by the written agreement of the parties as set forth in Section . In the event of breach of this AGREEMENT, the parties shall be entitled to such legal or equitable remedy as may be available, including specific performance.
· REPRESENTATIONS AND MODIFICATIONS OF AGREEMENT
No officer, official, employee or agent of WAKE COUNTY, DURHAM COUNTY or CARY may, or shall have the authority or power to, amend, modify or alter this AGREEMENT or waive any of its conditions so as to bind WAKE COUNTY, DURHAM COUNTY or CARY by making any promise or representation not contained herein, unless such modification or revision is:
a. In writing; and
b. Formally approved in the same manner as this AGREEMENT is originally approved; and
c. Duly executed by all parties hereto.
The failure of any party at any time to require performance by the others of any provision hereof shall in no way affect the right of the other parties to thereafter enforce the same. Nor shall waiver by any party of any breach of any provision hereof be taken to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. No provision of this AGREEMENT shall be deemed to have been waived by any party unless such waiver shall be in writing and executed by the same formality as this AGREEMENT.
· CUMULATIVE PROVISIONS
The rights and remedies reserved to WAKE COUNTY, DURHAM COUNTY and CARY by this AGREEMENT are cumulative and shall be in addition to and not in derivation of any other rights or remedies which WAKE COUNTY, DURHAM COUNTY and CARY may have with respect to the subject matter of this AGREEMENT and a waiver hereof at any time shall have no affect on the enforcement of such rights or remedies at a future time.
· NO JOINT VENTURE
Nothing herein shall be deemed to create a joint venture or principal agent relationship between the parties hereto and no party is authorized to, nor shall, any party act toward third parties or the public in any manner, which would indicate any such relationship with the other.
· ENTIRE AGREEMENT
This AGREEMENT and all attachments hereto and all material incorporated herein, represents the entire understanding and agreement of the parties with respect to the subject matter hereof, supersede all prior oral negotiations and can be amended, supplemented, modified or changed only as provided herein.
If any section, subsection, sentence, clause, phrase, or portion of this AGREEMENT is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions of this AGREEMENT. In the event any provision or part of this AGREEMENT is held to be void or unenforceable such may be deemed stricken and all remaining provisions shall continue to be valid and enforceable upon the parties hereto.
· SUCCESSORS AND ASSIGNS
This AGREEMENT may not be assigned by any party without the written consent of the other parties. Subject to the foregoing, this AGREEMENT shall be binding upon and its benefits inure to the parties, their successors and assigns. This provision shall not be construed as impeding the right of any party to sell raw wastewater collection and/or treatment services to other governmental entities.
a. Unless otherwise provided, all notices provided for herein shall be in writing and shall be sent properly addressed by first class mail to the parties at the addresses shown below:
This Contract shall be governed by and in accordance with the laws of the State of North Carolina. Any claims, disputes or other controversies arising out of, and between parties to this AGREEMENT which may ensue shall be subject to and decided by the appropriate general court of justice of Wake County, North Carolina.
IN TESTIMONY WHEREOF, WAKE COUNTY has caused this AGREEMENT to be executed by its Chairman, all by the authority of the Wake County Board of Commissioners, its official seal affixed and attested to by the Clerk to the Board, DURHAM COUNTY has caused this AGREEMENT to be executed by its Chairman, all by the authority of the Durham County Board of Commissioners, its official seal affixed and attested to by the Clerk to the Board, and CARY has caused this AGREEMENT to be executed by its Mayor, their corporate seal to be affixed and attested by its Clerk, all by the authority of the Cary Town Council, on the day and year first written above.
The Wake County Board of Commissioners, meeting in regular session on _____________, 2006 did approve this Interlocal Agreement dated ____________, 2006.
COUNTY OF WAKE
Chairman, Board of Commissioners
· Wake County, Cary, and RTF have an existing Interlocal Agreement dated October 28, 2003 concerning the provision of water and sewer service to the Wake County portion of Research Triangle Park (“RTP South”).
· Cary has an Interlocal Agreement with Durham County to provide wastewater treatment service for RTP South through December 31, 2010.
· RTF and Wake County desire for Cary to continue to provide wastewater treatment services for all wastewater generated by the customers in RTP South.
· RTP South wastewater service customers are subject to the Town of Cary sewer use ordinance, which specifies the maximum acceptable concentrations of certain pollutants. Some customers within RTP South have Industrial Use Permits allowing higher concentrations.
· Wake County, RTF, and Cary desire to modify the Agreement dated October 28, 2003, to add a mechanism that Wake County and RTF can use to have Cary plan for and provide the facilities needed for treatment of higher than normal strength wastewater.
· This Amendment No. 1 is authorized by the provisions of NCGS Chapter 160A, Article 20, Sections 460-464 and Chapter 160A, Article 16, Sections 311-323, and Chapter 153A, Sections 158 & 278.
NOW, THEREFORE, IT IS AGREED BETWEEN WAKE COUNTY, CARY, AND RTF THAT:
1. A new Section 18 will be appended to the existing Agreement dated October 28, 2003, as follows:
· Mechanism for Treatment of Higher Than Normal Strength Wastewater from RTP South CustomersWake County and RTF understand that the basis for provision of sewer service to all of Cary’s customers, including those in RTP South, is that those customers are required to follow the Town’s Utility Ordinance. This ordinance includes maximum acceptable concentrations for pollutants. For businesses or industries which are considered to be significant industrial users, the ordinance also includes a mechanism for the Town to issue Industrial User Permits (IUPs) allowing higher concentrations to be discharged to the Town’s sewer system. Wake County and RTF understand that the allowance of such higher concentrations is subject to the availability of treatment capacity, and that such availability is usually due to having temporary excess capacity prior to the service area for the treatment facility being built out. Such capacity is also subject to change due to changes in regulatory requirements, environmental conditions, or plant removal efficiency.
o Provision for Study of Alternatives. Wake County and/or RTF may at any time request that Cary evaluate providing treatment capability to remove pollutants discharged to Cary’s system at higher concentrations than those specified in Cary’s sewer use ordinance. Upon such request, Wake County, RTF, Cary, and, if appropriate, the affected RTP customer, will work together to identify alternatives and costs for providing the requested capacity. If engineering services from outside consultants are required to develop alternatives and costs, Cary will inform Wake County and/or RTF of the cost, and upon written authorization from Wake County and/or RTF, will undertake the evaluation. Wake County and/or RTF, as specified in the written authorization, will reimburse Cary for the cost of such engineering services from the outside consultants.
o Provision for Addition of Capacity. If Wake County and/or RTF desires to provide funding for Cary to implement a selected alternative for providing pollutant removal capacity to treat pollutant concentrations above the levels specified in the sewer use ordinance, then a formal request will be made in writing to the Town of Cary, indicating the specific capacity desired and the willingness to reimburse Cary for the costs associated with providing the additional capacity needed to treat concentrations above those specified in the Utilities Ordinance. Cary will add the requested capacity upon execution of a Letter of Service Agreement between all parties which includes:
7.2 Planning to Meet Capacity Needs
Cary agrees to include the facilities needed to meet the projected water supply, wastewater, and reclaimed water needs of RTP South in its planning and budgeting process each year. On an annual basis, Cary will provide RTF and Wake County with documentation describing the water, wastewater and reclaimed water projects related to serving the demands of RTP South. Cary will indicate the portion of the cost for any capital project that is needed solely to treat higher then normal pollutant loadings from RTP South customers. If applicable, Wake County and/or RTF will indicate in writing to Cary their willingness to enter into a Letter of Service Agreement, as discussed in Section 18, for any wastewater system capital costs associated with higher than normal pollutant loadings.
Available pollutant loading capacity will be based on either loading at normal concentrations, or, if additional loading capacity has been provided at the request of Wake County and/or RTF, the remaining loading capacity after considering the loading currently allocated by permit to existing RTP South customers.
Available water supply capacity will be based on the Jordan Lake allocation held by Wake County on behalf of RTP South, at the time of the request less the current capacity already committed to existing and proposed RTP South customers.
Available wastewater capacity will be based on the capacity at the facility or facilities treating wastewater from RTP South at that time, less the current flows and capacity already committed to existing and proposed RTP South customers.
Available reclaimed water capacity will be based on the reclaimed water facilities in place at that time less the current amounts already committed to existing and proposed RTP South customers. It is understood by Wake County and RTF that Cary will be planning facilities based on the projections provided by RTF as stated in Section 2.1, and that it is possible, in the event that customers’ needs are greater than projected, and/or grow faster than projected, that capacity may not be immediately available. Cary agrees to work with RTF and Wake County to identify and implement options for providing the capacity when needed.