This INTERLOCAL AGREEMENT is dated as of _________________________, 2004, (original or as supplemented or amended, referred to herein as the “Agreement”), and is among the towns of APEX (“Apex”); CARY (“Cary”); HOLLY SPRINGS (“Holly Springs”); MORRISVILLE (“Morrisville”), all of the above being municipal corporations and public bodies politic of the State of North Carolina (herein sometimes collectively referred to as the Municipal Parties); and WAKE COUNTY (the “County”), a body politic and a political subdivision of the State of North Carolina.
WHEREAS, as a result of Interlocal Study Agreement the parties to this Agreement have identified a preferred wastewater management solution which requires the construction of regional raw wastewater pumping and conveyance facilities; a regional water reclamation facility; a regional biosolids management facility, and an effluent pumping and conveyance system (collectively referred to as the Regional Wastewater Management Facilities or the “Project”); and
WHEREAS, as a result of Interlocal Study Agreement the parties have initiated preliminary site investigations and preliminary permitting activities for the preferred wastewater management solution; and
WHEREAS, the parties desire to apply to the North Carolina Construction Grants and Loan Section of the Division of Water Quality to a obtain low-interest construction loan to fund a portion of the construction of the Project; and
WHEREAS, the parties are required to prepare an Environmental Impact Statement and a 201 Facilities Plan in order to obtain the NPDES permit for the regional water reclamation facility and the low-interest construction loan to construct the facilities, respectively; and
WHEREAS, the parties desire to obtain a low-interest planning loan from the North Carolina Construction Grants and Loan Section of the Division of Water Quality to prepare the Environmental Impact Statement, the 201 Facilities Plan, NPDES permit application, and Construction Documents; and
WHEREAS, the parties desire to acquire land upon which the regional wastewater management facilities will be constructed; and
WHEREAS, the parties desire to enter into this Agreement, pursuant to statutory authority authorizing interlocal agreements N.C.G.S. § 160A-460 to 464, in order to pursue the above stated goals.
NOW THEREFORE, for and in consideration of the mutual promises and covenants contained in this Agreement and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
DEFINITIONS; RULES OF CONSTRUCTION
201 Facilities Plan: An engineering document prepared by the local governments to plan and define the wastewater facilities to be constructed. The 201 Facilities Plan, and the Environmental Impact Statement, will be submitted to the North Carolina Division of Water Quality Construction Grants and Loan Section as part of the low-interest construction loan application. As an engineering document, the 201 Facilities Plan must be signed and sealed by a professional engineer licensed to practice in North Carolina.
Business Day: Any day that is not a Saturday or Sunday, or a day on which banks in the State are required by law to be closed.
Clean Water State Revolving Fund (SRF): A low-interest loan funding source made available to North Carolina local governments for the purpose of constructing wastewater facilities. Eighty-percent of the money in the fund is provided by the U.S. Congress and the remaining 20 percent is provided by the North Carolina General Assembly. The interest rate for the loan is based on 50-percent of the Bond Buyers 20 Bond Index as of March 1st of each year, and the term is established at 20 years. To secure a loan it is necessary to prepare a 201 Facilities Plan and receive approval for the loan from the Local Government Commission. The interest rate can never be greater than 4 percent.
Construction Documents: The graphic and written information, prepared or assembled by a registered professional engineer, for communicating the design intent and administering the Project during construction.
Environmental Impact Statement: An environmental document prepared by the local governments to identify the environmental impacts associated with the Project, and the mitigation measures that will be implemented to minimize the impacts. The requirements associated with the preparation of the document are defined in North Carolina General Statute §113A-4(2).
Municipal Parties: Town of Apex, Town of Cary, Town of Holly Springs and the Town of Morrisville
NPDES Permit: The National Pollution Discharge Elimination System (NPDES) program is a federally mandated, nationwide system for permitting pollutant discharges into receiving streams. The local governments will submit an application to the State of North Carolina to obtain a new NPDES Permit that will allow for a new municipal wastewater discharge to the Cape Fear River.
North Carolina Division of Water Quality Construction Grants and Loan Section (CG&L Section): The state agency delegated to administer to the North Carolina Clean Water State Revolving Fund Program.
Record of Decision: A document prepared by NC DENR staff to serve as concise public record of the decision pertaining to the Environmental Impact Statement. The Record of Decision will include the following information:
(a) Statement discussing the project and the decision made;
(b) Identification of all alternatives considered, specifying the most environmentally preferable;
(c) Discussion justifying the chosen alternative; and
(d) Certification that all methods of avoiding or minimizing environmental impacts contained in the EIS will be implemented, or the reasons why not.
Once the record of decision has been issued, the local governments can proceed with submitting an NPDES permit application to the Division of Water Quality and the low-interest construction loan application to the Construction Grants and Loan Section.
Regional Wastewater Management Facilities: Regional raw wastewater pumping and conveyance facilities; a regional water reclamation facility; a regional biosolids management facility, and an effluent pumping and conveyance system.
Technical Advisory Committee: A committee of senior staff members from the Municipal Parties that shall be responsible for managing and coordinating the legal, financial technical and regulatory work to be completed under this Agreement. The Town of Cary Public Works and Utilities Director, or designee, will chair the Technical Advisory Committee. Town Manager from each of the other Municipal Parties shall submit a letter to the Chair of Technical Advisory Committee identifying the senior staff member, and designated alternates, that shall serve as the Municipal Parties representatives on the Technical Advisory Committee.
1.02. Rules of Construction. Unless the context otherwise indicates:
(a) Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include the feminine and neuter genders as well.
(b) All references to Articles, Sections, or Exhibits are references to Articles, Sections, or Exhibits of this Agreement.
(c) All references to a “party” or the “parties” are to the parties to this Agreement.
(d) All references to “officers” are references to officers of the parties to this Agreement.
(e) The headings herein are solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect.
The purpose of this Article of the Agreement is to set forth the terms and conditions pursuant to which the Municipal Parties will collaborate with Wake County to purchase the parcel or parcels of land that the Municipal Parties identify for the construction of regional pumping stations and the regional water reclamation facility and biosolids management facility.
2.02. Parcel Identification. The Municipal Parties will submit a letter to Wake County identifying the parcels to be acquired for the Project. The letter will indicate that the Municipal Parties are unanimous in the selection of the identified parcels, and request Wake County to initiate activities associated with acquiring the parcels. The information and data associated with the parcels to be acquired by Wake County will be delivered to Wake County within ninety (90) calendar days of the date of this Agreement. The Municipal Parties may elect to purchase or finance all or portions of the land separately from the County and, if so, will notify the County in writing within ninety (90) days of the execution of this agreement.
2.03. Purchase. The parties agree that the County will purchase the parcels on behalf of the Municipal Parties. The County will make best efforts to make said purchase(s) on or before June 30, 2006. Title shall be obtained (except in the case of eminent domain actions) by fee simple general warranty deed, free and clear of all liens and exceptions, except as agreed to in writing by the Municipal Parties. Prior to any closing the County shall conduct appropriate environmental examinations of the parcels and shall, by certified mail, provide Municipal Parties with written results of those examinations. Unless, within 20 days of such mailing, Municipal Parties object, in writing delivered to County by certified mail, to the findings of environmental reports, the Municipal Parties will be deemed to have accepted those findings and consented to the purchase of the parcel(s). All contracts for the purchase of parcels shall contain a condition allowing the County, in its sole discretion, to terminate the contract if any environmental problems are identified by an environmental examination.
2.04. Eminent Domain. In the event that any of the parcels must be acquired by the exercise of the power of eminent domain, the County will make best efforts to institute such an action in its name on behalf of the Municipal Parties no later than June 30, 2006. The parties agree that if, in the opinion of the County Attorney, it is necessary that any or all of the Municipal Parties become named parties in any eminent domain action, then the Municipal Parties will participate in that action as named parties.
2.05 Payment. Subject to the limitations expressed in paragraph 2.01, the County will fund land acquisition costs incurred in connection with the purchase of the identified parcels including, but not limited to, the purchase price, legal fees, appraisals, surveys, site examinations, court costs associated with eminent domain proceedings, if necessary, all environmental due diligence analyses, bond issuance costs and accrued interest (hereinafter referred to as the “Land Acquisition Costs”). In the event the County decides, in its sole discretion, to finance the Land Acquisition Costs, it will use its best efforts to finance the Land Acquisition Costs over a period of twenty (20) years and will use its best efforts to structure such financing with level debt service payments.
2.06 Title. Title to the parcels shall be in the name of the County until such time as the County is repaid all costs as provided in Section 5.01. If title is obtained pursuant to an eminent domain action in which parties other than the County are named condemnors, the parties agree that, upon vesting of title or completion of the eminent domain action, at the County’s sole discretion, the parties will transfer title to the County. Upon full repayment, or at such time as the County otherwise, in its sole discretion, elects, title to the parcels shall be transferred to the Municipal Parties or to an operating entity or entities as established by further agreements of the parties. Municipal Parties agree that they will accept title to the parcels or will require that any operating entity or entities will, at such time as the County elects, accept transfer of title by the County by a deed of at lease equal rank as the deed received by County for the parcel. In the event title does not pass to the Municipal Parties or an operating entity prior to such time as the parities need access to the parcels for surveys, tests and design work, or for construction and operation of Regional Wastewater Management Facilities, then the County shall, and does hereby, grant the Municipal Parties or their operating entity a license to enter onto and use the parcels for the purposes for which they were acquired including the design, construction and operation of the Regional Wastewater Management Facilities. By accepting such license, the Municipal Parties each agree to indemnify and hold harmless the County from any personal injury, property damage or loss of any kind which may occur as a result of the use of the parcels by the Municipal Parties or their operating entity pursuant to said license. In the event the County transfers title prior to the repayment of all Municipal Parties obligations pursuant to section 5.01 of this Agreement, Municipal Parties agree that they will, not inconsistent with State law, execute any documents reasonably required by the County to secure payment of those obligations.
2.07. Records. The County shall keep complete records of all costs associated with acquisition of the parcels, and shall make such records available for inspection at reasonable times by any Municipal Party.
PLANNING AND ENGINEERING
(a) The analysis, document(s) and agreement(s) related to organizational, institutional, and financial development of the Regional Wastewater Management Facilities, as needed to proceed to the next step of final design and construction of the Regional Wastewater Management Facilities.
(b) A Preliminary Engineering Report providing the detail necessary to support loan applications, environmental documentation, and design criteria for the Regional Wastewater Management Facilities.
(c) A 201 Facilities Plan that meets the requirements for obtaining CG&L Section loan funding for construction of a portion of the Regional Wastewater Management Facilities.
(d) An Environmental Impact Statement for the Regional Wastewater Management Facilities as required by the State, and such supporting documents and meetings as required for obtaining a favorable Record of Decision for the NPDES Permit.
(e) A loan application to the CG&L Section for the planning and engineering work.
3.02. Lead Agency. For the work to be accomplished under this Agreement, the Town of Cary will serve as the lead agency. As such, the Town will apply for, receive, and repay loan funds received from the State; solicit proposals from, select, contract with and pay service providers to perform the work; collect payments from Municipal Parties to the agreement; and apply for an NPDES permit from the State. The Town of Cary shall serve as an agent to pay service providers’ invoices for Work, but shall only be legally obligated for its pro rata share of such costs as set forth in Attachment A. Each of the parties shall indemnify and contribute the pro rata share of such costs as each party’s pro rata share is defined in Attachment A.
3.03 Technical Advisory Committee Responsibilities. The responsibilities of the Technical Advisory Committee will include, but not necessarily be limited to, the following:
(a) Determining the scope of work for the efforts to be completed under this Agreement;
(b) Developing requests for proposals for the work;
(c) Reviewing and analyzing proposals submitted by service providers;
(d) Making recommendations to the Town of Cary for which service provider(s) should be selected to perform all or portions of the work;
(e) Assuring that all information pertinent to the work is conveyed to service providers in an expeditious manner;
(f) Receiving and reviewing regular progress reports on the work;
(g) Closely reviewing periodic draft documents provided by service providers;
(h) Generally overseeing the conduct of the work;
(i) Meeting as necessary, with such meetings to be called by the chair of the Technical Advisory Committee.
3.04 Funding. The Town of Cary shall, on behalf of the Municipal Parties, apply for funds from the CG&L Section for a Planning Loan. The proceeds from the Planning Loan will be used to prepare the Environmental Impact Statement and 201 Facilities Plan, obtain an NPDES permit for the regional water reclamation facility, apply for a low-interest construction loan from the CG&L Section and prepare a portion of the construction documents for the Regional Wastewater Management Facilities. Each of the Municipal Parties shall approve the CG&L application prior to submission by the Town of Cary to the State of North Carolina. Approvals shall be made within 14 business days of delivery of the application to the Municipal Parties. Approval of the CG&L loan application shall not be unreasonably withheld by any of the Municipal Parties.
3.05 Contracts. Promptly after approval of funding by the CG&L Section, the Town of Cary shall, on behalf of the Municipal Parties, enter into contracts for preparing the Environmental Impact Statement, 201 Facilities Plan, obtaining an NPDES permit, and applying for a low-interest construction loan. Each of these contracts is subject to the approval of each Municipal Party. If the combined cost of the contracts exceeds funds received by the Town of Cary from the CG&L Section, then each Municipal Party shall provide a pro-rata share of the additional costs in accordance with the cost distributions presented Attachment A.
Each of the Municipal Parties shall execute and provide the Town of Cary with such writings, instruments and documents as are needed to evidence to third parties the interests and obligations contemplated herein.
3.06. Ownership of Work Product. Except as provided in Section 3.07, all of the work resulting from this Work shall be owned jointly and severally by each of the Municipal Parties to this Agreement. Any additional work contracted for by one or more of the Municipal Parties to this Agreement as specified in Section 3.07 shall be owned exclusively by the local government which contracted for each item of additional work. Every Municipal Party shall receive directly from each service provider a copy of all correspondence, documents, preliminary reports, and final reports. Each Municipal Party may use all such work in any manner it deems appropriate, either in collaboration with all other Municipal Parties, some of the other Municipal Parties, or alone.
3.07. Individual Change Orders/Addenda. The Municipal Parties, through their representatives on the Technical Advisory Committee, shall agree to a scope of work that shall be common to, serve the interests of, and be the property of all parties. If, however, there is particular work which one or more parties desire to have done, which is not agreed to by a unanimous vote of the Technical Advisory Committee and approved by the Town of Cary, that party or parties may add such work to the contract by way of a request to the Town of Cary. The additional work must be requested in a letter to the Town of Cary, and the letter must specify the scope and cost of the additional work, and include a commitment to pay the full cost thereof. Any party or parties requesting such additional work shall be solely responsible for the costs of such work, the work product from such additional work shall be the sole property of the entity or entities contracting for such additional work. Invoices for such additional work shall be included as separate tasks in the invoices sent to the Town of Cary for the work. The invoices will be transmitted to and paid by the party or parties requesting the work as described in Section 3.02.
5.03. Payment for Work Not Included in the State Loan. For invoices for services not included in the State loan, the Town of Cary will send to each Municipal Party on a monthly basis a report of each invoice paid by the Town of Cary during the month with a calculation showing each party’s pro-rata share. Municipal Parties agree to pay all such invoices within thirty (30) days.
JOINING INTERLOCAL AGREEMENT
(a) All of the Municipal Parties shall work cooperatively to reach a mutual agreement as to the portion of the capacity of the Regional Wastewater Management Facilities that will be allocated to each party’s use.
(b) All Municipal Parties agree that there will be no refund of costs incurred under this Agreement to any parties who elect not to participate in final design and construction of the Regional Wastewater Management Facilities.
(c) All Municipal Parties agree to be bound by the payment obligations incurred herein for land acquisition costs and planning loan costs, and to appropriate funds as necessary in futures years to pay those obligations as prescribed in this Agreement.
(d) Each Municipal Party will, consistent with the best interests of its citizens, undertake to support and further any future collaboration effort, and not to damage unreasonably the prospects for regional cooperation.
(e) All Municipal Parties agree that intergovernmental cooperation for the Project must result in improved efficiency and high quality service for all parties.
(f) All Municipal Parties agree that the organization and management plan for the Regional Wastewater Management Facilities must be efficient, effective and result in a reasonable unit cost of service.
(g) All Municipal Parties agree that water reclamation and reuse should be pursued by all local governments for improved environmental protection and water resource management;
(h) Each Municipal Party commits in principle to practice responsible growth management, as determined in the sole discretion of the governing board of each party.
(i) Each Municipal Party commits to implementing mitigation measures, as identified through the EIS process, to minimize the environmental impacts identified for the Project.
(j) No Municipal Party shall be required to adopt or adhere to caps on growth, except as may be approved by the governing board of that party.
(k) No Municipal Party shall be required to adopt or adhere to any planning, zoning, or land use requirements within its jurisdiction, except as may be approved by the governing board of that party in its sole discretion, or as otherwise required by law.
7.02 Organizational, Institutional, and Financial Development. Town of Cary shall, on behalf of the Municipal Parties, enter into contracts with service providers for the development of analyses, documents and agreements necessary to accomplish final design, construction, ownership, operation and maintenance of the Regional Wastewater Management Facilities. Each of these contracts is subject to the approval of each Municipal Party. The Town of Cary shall serve as the agent to pay service providers’ invoices for Work, but shall only be legally obligated for its pro rata share of such costs as set forth in Attachment A. Each of the parties shall indemnify and contribute the pro rata share of such costs as each party’s pro rata share is defined in Attachment A. Upon receipt of an invoice from a service provider, the Town of Cary shall immediately send such invoice to each Municipal Party, along with a calculation showing each Municipal Party’s pro rata share. Each Municipal Party shall pay its pro rata share to the Town of Cary within thirty (30) days of its receipt of the invoice from the Town of Cary.
TERMINATION OF AGREEMENT
NATURE OF OBLIGATION OF THE PARTIES
Finance Officer, Town of Apex
Finance Officer, Town of Cary
Finance Officer, Town of Holly Springs
Finance Officer, Town of Morrisville
Chairman, County Board of Commissioners
Finance Director, County of Wake
Table A-2 presents the estimates for the repayment obligations that will be incurred for this Agreement. The estimated costs shown for each Municipal Party represent the sum of the estimated payments required to satisfy each of the identified obligations. Estimated payments are based on 20-year loan terms at 3 percent interest rate. Actual payment requirements are subject to change pending negotiation of service provider agreements, land acquisition costs, and execution of loan documents with final interest rate and terms.