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HomeMy Public PortalAbout09-08-2003 Regular Session . . . 348 Town of Hlli~ . gh MINUTES IllLLSBOROUGH TOWN BOARD September 8, 2003 7:30 PM, Town Barn The Hillsborough Town Board held a regular meeting on September 8, 2003 at 7:30 PM in the Hillsborough Town Barn. Present for the Board Meeting were Mayor Joe Phelps, and Commissioners Mike Gering, Mark Sheridan, Evelyn Lloyd, Frances Dancy and Kenneth Chavious. Staff present were Town Engineer Kenny Keel, Assistant Town ManagerlPublic Works Director Demetric Potts, Planning Director Margaret Hauth, Fire Marshal/Code Enforcement Officer Todd Chavious, Town Clerk Donna Annbrister, Finance Director Sherry Carter and new Finance Director Greg Siler, Management Intern Kent Wyatt, and Town Attorney Bob Hornik. Mayor Joe Phelps called to order at 7:32 PM. 1. PUBLIC CHARGE Mayor Phelps did not read the Public Charge but did state that it would be followed. He explained that it is a very long agenda and that any items not covered at this meeting would be continued until a later time. He suggested ending the Open Session and going into Closed Session around 10:30 PM. By consensus, the Board agreed. Finance Director Sherry Carter introduced the Town's new Finance Director, Greg Siler, who will be filling the role upon Ms. Carter's retirement next spring. 2. AUDIENCE COMMENTS REGARDING MATTERS NOT ON THE PRINTED AGENDA (speakers will have a 5 minute limit) Mayor introduced Albeit Shambley who appeared before the Board and requested a donation of $1,000 to the Exchange Club. He indicated that this donation would help off-set their extra expenses of having to pay for garbage pickup at the Exchange Club Park. The Mayor thanked Mr. Shambley for his time. This request will be addressed at a later meeting. 3. AGENDA CHANGES & AGENDA APPROVAL Mayor stated that Item 9.1 Review bids for supplying generators for the Town Hall. Hassell Street BPS. and Mavo Street BPS would be removed from the Agenda since the bids have not yet been received. 4. APPOINTMENTS A. Re-appoint Jeff Hopper to second term on the Board of Adjustment ending September 30, 2006 . . . 349 Upon a motion by Commissioner Sheridan, seconded by Commissioner Dancy, the Board moved to re-appoint Jeff Hopper to a second term on the Board of Adjustment with a term ending September 30, 2006 by a vote of 5-0. B. Re-appoint Jim Boericke to a second term on the Planning Board ending September 30, 2006 Upon a motion by Commissioner Dancy, seconded by Commissioner Lloyd, the Board moved to re-appoint Jim Boericke to a second term on the Planning Board with a term ending September 30, 2006 by a vote of 5-0. 5. APPROVAL OF THE MINUTES OF APRIL 15TH AND 22ND JOINT PUBLIC HEARINGS, THE JULY 14TH REGULAR BOARD MEETING, THE JULY 22ND JOINT PUBLIC HEARING, THE JULY 24TH MONTHLY WORKSHOP, AND THE JULY 28TH SPECIAL MEETING Commissioner Gering noted a typographical error in the Minutes of the July 22nd Joint Public Hearing on the second page, fourth paragraph, second line - the word "bee" should be "been". Upon a motion by Commissioner Lloyd, seconded by Commissioner Gering, the Board moved to approve the Minutes of the April 15th and 22nd Joint Public Hearings, the July 14th Regular Board Meeting, the July 220d Joint Public Hearing, the July 24th Monthly Workshop, and the July 28th Special Meeting as presented with the aforementioned correction by a vote of 5-0. The motion was declared passed. 6. REPORT FROM THE TOWN MANAGER Mayor introduced Demetric Potts, Assistant Town Manager, sitting in for Town Manager Eric Peterson who is out of town. Assistant Manager Potts did not have anything additional to report. 7. REPORT FROM THE TOWN ENGINEER Town Engineer Kenny Keel presented a status report on all water and sewer projects. 8. CONSENT AGENDA A. Consider approving Memorandum of Understanding for attorney services in FY03-04 from the Brough Law Firm B. Consider approving a Resolution Enacting a Policy of Sick Leave and Salary Continuation for Employees Experiencing Adverse Medical Reaction to Smallpox Vaccination Upon a motion by Commissioner Lloyd, seconded by Commissioner Chavious, the Board moved to approve the Items A and B of the Consent Agenda as presented by a vote of 5-0. The motion was declared passed. A copy of the Memorandum of Understanding for attorney 2 . . . 350 services in FY03-04 from the Brough Law Finn and a copy of the Resolution Enacting a Policy of Sick Leave and Salary Continuation for Employees Experiencing Adverse Medical Reactions to Smallpox Vaccination is hereby made a part of these official Minutes as an Attachment. 9. ITEMS FOR DECISION - REGULAR AGENDA A. Consideration of Ordinance regarding False Fire Alarms Fire Marshal Todd Chavious presented the Ordinance for the Board's consideration. He explained the need to prevent false alarms or at least provide an incentive to maintain the Fire Alarm System at a business is a must. The result of not controlling false alarms would result in potentially increased insurance premiums for everyone in the town and poor volunteer response to fIre calls. Fire Marshal Chavious stated that the Ordinance recommended for adoption is a revised version of the Orange County Fire Alarm Code that has been tailored by the Orange Rural Fire Chief, the Town Attorney and the Town Fire Marshal to fit the Town's needs. Fire Marshal Chavious and Town Attorney Hornik responded to questions from the Board. Commissioner Sheridan expressed concerns whether the $50 penalty is high enough. Commissioner Gering suggested significantly raising the penalty. Mayor Phelps asked the Town Attorney if we can send out notices to businesses letting them know of this Ordinance and letting them know that if problems continue, the Board will consider raising the penalty. The Attorney stated that it would be a very good idea to do that as part of the Town's educational process. Upon a motion by Commissioner Lloyd, seconded by Commissioner Gering, the Board moved to adopt the Ordinance Amending Chapter 12 of the Hillsborough Town Code to Regulate False Alarms Received and Dispatched by Orange Rural Fire Department as presented by a vote of 5- O. The motion was declared passed. A copy of the Ordinance is hereby made a part of these official Minutes as an Attachment. B. Consider approval ofKenion Grove Water/Sewer Extension Contract This item was tabled to a later date. C. Consideration of Preliminary Subdivision plan for Kenion Grove, 60 lots behind the Orange County Planning Office using the cluster provisions with access to Revere Road Planning Director Hauth explained that the Planning Board reviewed this application over the course of 3 meetings. They encouraged the applicant to meet with neighbors to discuss their concerns when about 6 attended the second Planning Board meeting. The subdivision plan has changed somewhat since its original application. The applicant has also met with both the Police and Fire Chiefs to discuss their concerns about the development. The Planning Board recommended denial of the subdivision plan which they saw by a vote of 7-1. Reasons mentioned at that meeting were: one access point, narrow streets, and the lack of recreation space. 3 . . . 351 Applicant Vic Knight and Tony Whittaker addressed the Board and reviewed the revisions that have been made and answered questions from the Board. Commissioner Gering asked why the revisions were made after the presentation to the Planning Board and why it was not taken directly back to the Planning Board before coming before the Town Board. Planning Director Hauth explained that the existing Ordinance does not allow the applicant to go back to the Planning Board without the direction of the Town Board. Commissioner Chavious suggested the Board vote to send this project back to the Planning Board for their consideration. Commissioner Gering also wished to send it back to the Planning Board and asked that they also make a recommendation to the Town Board on whether they think the second subdivision access would be better from Revere Road or Old Cedar Grove Road. Mayor introduced citizens wishing to address Board on this issue: Barbara Burger, resident of Revere Road, stated that she has an existing water and drainage problem now, and is concerned how this development will affect her property noting that she did not see a retention pond in the proposed plan. She also stated that she wanted to see sidewalks on Revere Road. Marjorie Gelunus, stated that she is new to the area and was not aware of this project. She stated that she considers the development is too dense and is concerned about drainage problems. Chris Kimball, Revere Road resident, expressed concerns with the water runoff problem. Also stated concerns with the entrance from Revere Road being placed so close to the curve in the road. Mr. Kimball would also like to see some type of covenants to restrict the use of the property so that it does not negatively affect his property. Evelyn Poole-Kober has been a temporary resident of Revere Road. She stated that she has seen the water drainage problems along this road. She also expressed concerns with the speed of the traffic on Revere Road and the proposed entrance to the development. Edna Ellis stated that she is asking for the Board's protection of their property. Cruz Lazono, stated he didn't have any additional concerns that have not been already covered. Anthony Brooks stated that the majority of his concerns have already been mentioned. He stated that he is also worried about the number of new homes increasing traffic, and possible crime. Commissioner Gering stated he would like to have the following issues considered by the Planning Board: . Is retention pond necessary or best way to handle the runoff'? 4 352 . · Access point - which is best for traffic and walkablility -- Revere vs. Cedar Grove Road? Upon a motion by Commissioner Lloyd, seconded by Commissioner Gering, the Board moved to send the revised Preliminary Subdivision Plan for Kenion Grove back to the Planning Board for their consideration and recommendation by a vote of 5-0. The motion was declared passed. D. Krista Babbitt will address the Board - Ms. Babbitt is requesting the Board discuss the Water and Sewer Advisory Committee's recommendation to lower the Out-of- Town rate multiplier from 200% - 195% and discuss the issue of conducting a rate study Mayor Phelps stated that it is looking like the Town is going to experience a shortfall on water and sewer revenues for this year, which may be due in part to the amount of rain and people not watering their lawns. Mayor suggested that part of a worksession be devoted to discussion of the water rate issue. Commissioner Gering suggested that the Water/Sewer Advisory Committee bring back to the Board additional rate options for consideration. Commissioner Sheridan stated that a small adjustment such as lowering the Out-of-Town rate multiplier from 200% to 195% is a modest request and suggested that the Board seriously consider implementation. . By consensus, the Board agreed to hear this item at a workshop at a later date. Krista Babbitt presented the Board with a 5 page Petition signed by Town water/sewer users who feel that everyone should pay the same rate for use. This Petition is hereby made a part of these official Minutes as an Attachment. E. Jack Smyre will address the Board regarding the Proposed Annexation of the 340 acre Waterstone Development Jack Smyre requested to schedule another Public Hearing to deliver to the Board the impacts of the fiscal analysis. Upon a motion by Commissioner Dancy, seconded by Commissioner Gering, the Board moved to schedule a Joint Public Hearing with the Planning Board regarding the Proposed Annexation of the Waterstone Development on September 29th in the Gordon Battle Court Room at 7:00 PM by a vote of 5-0. The motion was declared passed. F. Discuss Downtown Parking . In the Board's Agenda material, the Town Manager suggested considering increasing the time limit on at least half of the spaces that are located in the parking lot between the Police Department and the Mercantile Center. 5 . . . 353 After some discussion, and upon a motion by Commissioner Gering, seconded by Commissioner Lloyd, the Board moved to increase the 2 hr parking on the North side of the Mercantile Center to 3 hours by a vote of 5-0. The motion was declared passed. G. Update from Code Enforcement Officer on Nuisance and Junk Car abatement efforts Fire Marshal Todd Chavious presented an update on the Nuisance and Junk Car abatement efforts. H. Consider approval of Contract for Vulnerability Assessment and Emergency Response Plan Town Engineer Keel presented the Contract for the Board's consideration. He explained that Congress has mandated certain security related requirements in response to the September 11, 2001 attacks. The US EP A was delegated with enforcement of the water utility requirements. The Town of Hillsborough is in the final group of utilities to be required to perform these studies. Engineer Keel noted one change to be made to the Contract to change the wording from California to North Carolina. Upon a motion by Commissioner Dancy, seconded by Commissioner Lloyd, the Board moved to approve the Contract for Vulnerability Assessment and Emergency Response Plan with Brown and Caldwell for a budgeted amount of $45,000 as presented by a vote of 5-0. The motion was declared passed. Mayor called for a brief recess. Mayor called the meeting to order. I. Review bids for supplying generators for the Town Hall, Hassell Street BPS, and Mayo Street BPS Ibis Item was removed from the Agenda. Mayor Phelps asked to move Item L to be heard before Item J. The Board agreed. Item L was heard out of order. L. Consideration of an Ordinance to rezone 19,680 sf from Residential-lO to General Commercial (TM 4.8.D.ll&11a) at the corner of Faucette Mill Road and Cornelius Street Planning Director Margaret Hauth presented the Ordinance for the Board's consideration and stated that the Planning Board unanimously recommended approval. Upon a motion by Commissioner Lloyd, seconded by Commissioner Chavious, the Board 6 354 . moved to adopt the Ordinance to rezone 19,680 sf from Residential-lO to General Commercial (TM 4.8.D.ll&lla) at the corner of Faucette Mill Road and Cornelius Street as presented by a vote of 5-0. The motion was declared passed. A copy of the Ordinance to rezone 19,680 sffrom Residential-lO to General Commercial (TM 4.8.D.ll&lla) at the corner of Faucette Mill Road and Cornelius Street is hereby made a part of these official Minutes as an Attachment J. Discussion of revised information submitted by Corbinton Commons and Village at Meadowview Planning Director Margaret Hauth led the discussion. Mr. Coleman, representing Corbinton Commons, addressed the Board and reviewed the proposed changes to the Corbinton Commons project. Mr. Evans, representing Village at Meadowview, addressed the Board and reviewed the proposed changes to the Village at Meadowview project stating that he feels that they address the Board's concerns. He suggested that the Town set up a Committee to review getting a HUD 202 Program in Hillsborough and possibly have some developers to serve on the Committee. Commissioner Sheridan suggested these items be placed on the agenda for either the September worksession or the October regular Board Meeting. . Commissioner Gering suggested the October regular Board Meeting. By consensus, the Board agreed to consider voting on them at the October regular Board Meeting. Item 9.M was heard out of order. 9.M. Consideration of an Ordinance to amend the Zoning Ordinance to include assisted living and adult care home in the definition of extended care facility and allow such facilities within residential districts with a Conditional Use-2 permit Planning Director Hauth presented the Ordinance for the Board's consideration. She reminded the Board that a request had come from Carillon to allow assisted living facilities in residential area was heard at the July Public Hearing. Planning Board and Town Board members both indicated a preference for the use to come under their review as a special use. The language in the proposed Ordinance has been adjusted to reflect the change in the review process. Hauth stated that the Planning Board unanimously recommended adoption of these revised amendments. . Upon a motion by Commissioner Gering, seconded by Commissioner Sheridan, the Board moved to adopt the Ordinance to amend the Zoning Ordinance to include assisted living and adult care home in the definition of extended care facility and allow such facilities within residential districts with a Special Use Permit as presented by a vote of 5-0. The motion was 7 . . 355 declared passed. A copy of the Ordinance is hereby made a part of these official Minutes as an Attachment. K. Consider approving street resurfacing bid and street paving contract for FY04 Assistant Town Manager/Public Works Director Demetric Potts presented the bids for the Board's consideration. Potts stated that during Fiscal Year 2004 the following streets are scheduled for resurfacing: Latimer St. (Nash St. to Hayes St.); S. Wake St. (W. Margaret Ln. to End); Brownville St. (Lakeshore Dr. to W. King St.); Cameron St. E. Corbin St. to St. Mary's Rd.); Webb St (Nash St. to Holt St.); and Holt St. (W. King St to Knight St.). The Town is in year four of the Ten Year Street-Repaving Plan. Potts reported that the Board had allocated $65,000 for street resurfacing in FY04 Powell Bill Funding. The lowest bid was for $72,650. Assistant Town Manager/Public Works Director Demetric Potts recommended the Board award the resurfacing and street paving contract to Barrett, Irvin & Jordan Construction, Inc. of Durham who came in with the lowest bid. By consensus, the Board agreed to have the paving done even if there is a shortfall in the Powell Bill funds. Upon a motion by Commissioner Sheridan, seconded by Commissioner Lloyd, the Board moved to award the FY04 Street Resurfacing and Paving Contract to Barrett, Irvin & Jordan Construction, Inc. of Durham in the amount of $72,650 as recommended, by a vote of 5-0 pending references. The motion was declared passed. A copy of the Street Improvement Bids tabulation and a copy of the Paving Contract are hereby made a part of these official Minutes as Attachments. L. Consideration of an Ordinance to rezone 19,680 sf from Residential-lO to General Commercial (TM 4.8.D.11&lla) at the comer of Faucette Mill Road and Cornelius Street This Item was heard earlier in the meeting out of Agenda order. M. Consideration of an Ordinance to amend the Zoning Ordinance to include assisted living and adult care home in the defInition of extended care facility and allow such facilities within residential districts with a Conditional Use-2 permit This Item was heard earlier in the meeting out of Agenda order. Items 9.N, 9.0, 9.P, and 9.Q were all voted on together. N. Consideration of an Ordinance to amend Section 8.17 of the Zoning Ordinance to allow staff to remove certain non-conforming signs O. Consideration of an Ordinance to amend Section 5.24 of the Zoning Ordinance to require . sidewalk width of 5 feet and require maintenance 8 . . . 356 P. Consideration of an Ordinance to amend Section 2 and 4.6 of the Subdivision Regulations with regard to "common open space" Q. Consideration of an OrdiJ;lance to amend Section 4.4.3 of the Subdivision Regulations to set the sidewalk width at five feet Upon a motion by Commissioner Lloyd, seconded by Commissioner Sheridan, the Board moved to approve Items 9.N, 9.0, 9.P, and 9.Q as presented by a vote of 5-0. The motion was declared passed. A copy of the Ordinance to amend Section 8.17 of the Zoning Ordinance to allow staff to remove certain non-conforming signs; a copy of the Ordinance to amend Section 5.24 of the Zoning Ordinance to require sidewalk width of 5 feet and require maintenance; a copy of the Ordinance to amend Section 2 and 4.6 of the Subdivision Regulations with regard to "common open space", and a copy of the Ordinance to amend Section 4.4.3 of the Subdivision Regulations to set the sidewalk width at five feet are hereby made a part of these official Minutes as Attachments. R. Discuss preparations for the Town Manager's Annual Evaluation in October By consensus, the Board agreed to conduct the Town Manager's Annual Evaluation in Closed Session at their Regular Meeting in October. They did ask to have the Manager provide them with the forms they have used in the past. The Town Clerk indicated that she would relay that information to the Manager. S. Discuss joint meeting with Orange County BOCC on March 29, 2004 By consensus, this date will be placed on their meeting schedule. T. Discuss "Hot Topics" for September Workshop By consensus, the Board agreed to discuss Retirement Centers at their September Workshop. 10. CLOSED SESSION Upon a motion by Commissioner Lloyd, seconded by Commissioner Dancy, the Board moved to go into Closed Session for the purposes of discussing current litigation, proposed litigation, and property acquisition by a vote of 5-0. The motion was declared passed. A. Closed Session regarding current litigation regarding junk cars and nuisance lots B. Closed Session to discuss possible property acquisition C. Closed Session to discuss potential litigation C 1. Closed Session to discuss potential litigation Upon returning to Open Session, and upon a motion by Commissioner Lloyd, seconded by Commissioner Gering, the Board moved to authorize the North Carolina League of Municipalities to offer claim settlement of up to $5,000 to Mr. Kent Scott for wrongful cutting of a Hackberry Tree by a vote of 5-0. The motion was declared passed. 9 357 . 11. ADJOURN Upon a motion by Commissioner Lloyd, seconded by Commissioner Gering, the Board moved to ad.oum the meeting at 11.40 PM by a vote of 5-0. The motion was declared passed. ~/~ espectfully submitted, Donna F. Armbrister, CMC Town Clerk. . . 10 . . . 358 COMPENSATION FOR SERVICES Statements for services rendered by The Brough Law Fiml will be prepared at the end of each calendar month for the work performed during the previous month. Your monthly statement will consist of two parts: an itemized breakdown of professional services and a list of expenses and costs advanced. The professional services portion of your statement will be based upon the following hourly rates for the attorneys who work on your case: Michael B. Brough William C. Morgan, .Ir. Nicholas Hemlan Robert E. Hornik, Jr. T.c. Morphis, Jr. $140.00 $130.00 $130.00 $130.00 $100.00 Your statement will indicate the services performed and the date, the attorney performing the services, the hourly rate, and the total. It will also include an itemized list of additional expenses and costs advanced. These include: . Photocopy charges for non-routine copying done for the client outside the office. . Private express mail carriers such as Federal Express. . Paralegal services at a rate of $50.00 per hour. . Law clerk services at a rate of $35.00 per hour. . Mileage and travel expenses outside Orange, Durham, Wake & Chatham counties. . Filing, service of process, ana other fees associated with litigation. . Fees for recording deeds and other instruments. Statements will be mailed by the 10th of each month and are overdue if payment is not received by the end of that month. Interest at the rate of 1 'i2% per month shall accumulate on balances not paid within thirty days after the date such balances become overdue. Any retainer received from you will be deposited in our trust account and used to pay your monthly statements. To the extent our statements exceed the retainer amount, payment will be expected as indicated above. If payment in full is not received by the 151h of the month following the month in which a statement is issued, no additional services will be performed in your behalf and thereafter services will be performed only if and to the extent that additional funds are deposited in our trust account to ensure payment of our statements as they become due. . . . 359 :-fORTH CAROLINA ORANGE COUNTY MEMORANDUNl OF UNDERSTANDING I. Parties. The parties to this memorandum of understanding ("memo") are the Town of Hillsborough (the "Town") and The Brough Law Fim1 ("Law Fim1"). 2. Purpose. The purpose of this memo is to set forth the understanding between the parties concerning the nature of the relationship under which the Law Firm shall serve as the Town Attomey. 3. Scope of Service. In consideration of the compensation set forth below, Law Firm shall continue to perform for the Town all of the legal services required by the Town as set fOlih herein. Such services shall include, without limitation, consultation with the Board of Commissioners and town staff, attendance upon request at the Board of Commissioner's meetings, and the meetings of other boards, drafting and/or review of ordinances and other documents, and representation of the Town in litigation. Not included within the scope of covered services are services customarily performed by outside bond cOlIDsel. ' 4. Services Perfonned by Law Finn. The parties acknowledge and agree that the full . resources of the Law Fim1 shall be available to the Town. However, the Law Firm may subcontract with otherfinns or i11dividuals to have certain services perfom1ed for the Town, sllch as title searches, but the Law Firn1 shall remain responsible to the Town for the quality and timeliness of these services. Payment for these subcontracted services shall be made by the Law Firn1 and shall be charged to the Town on the Law Firm's monthly invoice. 5. Compensation. The Town shall pay to Law Fim1 for legal services rendered during fiscal year 2003-2004 on a mont~ly basis according to the services perfon11ed during each month. Monthly invoices shall indicate the number of hours worked and the fees shall be calculated according to the following rates. Michael B. Brough $140 William C. Morgan, Jr. $130 G. Nicholas Herman $130 Robert E. Hornik, Jr. $130 T. C. Morphis, Jr. $100 Ordinary office expenses shall continue to be charged in accordance with the attached statement. . . . 360 6. Duration, Temlination. This memorandum shall govem the relationship between the patiies for the period July 1, 2003 through June 30, 2004. The relationship established under this memorandum may be tenninated upon ten (10) days written notice by either patiy. Payment shall be made for services rendered through the date oftemunation. I~:jr- . This memorandum of understanding is executed by the paIiies this _ day of (f ~ ,2003. TOWN OF HILLSBOROUGH THE BROUGH LAW FIRM BY ~i ,/) Robert E. Hornik, .r r. BY: Eric Peterson, Manager ATTEST: Donna All11brister, Clerk Provision for payment has been made by an appropriation duly made or bonds or notes duly authorized, pursuant to the Local Government Budget and Fiscal Control Act. ~- . . . 361 TOWN OF HILLSBOROUGH BOARD OF COMMISSIONERS RESOLUTION ENACTING POLICY REGARDING SICK LEAVE AND SALARY CONTINUATION FOR EMPLOYEES EXPE~ENCING ADVERSE MEDICAL REACTION TO SMALLPOX VACCINATION Dated: September 8, 2003 WHEREAS, the General Assembly has added a new General Statutes 9 160A-164.1 requiring municipalities employing firefighters, police officers or paramedics or other first responders, to enact policies regarding sick leave and salary continuation for employees for possible absence from work due to adverse medical reactions to smallpox vaccinations; and WHEREAS, the Town of Hillsborough employs firefighters and police officers, and other potential first responders who may suffer adverse medical reactions to smallpox vaccinations; NOW, THEREFORE, BE IT RESOLVED by the Town of Hillsborough Board of Commissioners as follows: Notwithstanding any language in the Hillsborough Town Code to the contrary, should any firefighter, police officer, or other "first responder" employed by the Town experience an adverse medical reaction to a small pox vaccination received as a result of employment by the Town, the Town shall, upon presentation to the Town of a written report or opinion by a North Carolina licensed physician confimling the cause of the reaction, recognize that such an adverse reaction is a compensable covered event such that the provisions of Town Code Chapter 4 - Personnel Policy, and of Section 4-25 (Workers' Compensation Leave) shall apply. The foregoing Resolution on motion of Commissioner L/d?~~ seconded by Commissioner t!AI?V/P//1 , was adopted this 8th day of September, 2003, Ayes: 6" Noes: V . Absent or Excused: .-c::::r- ~~~ Donna Armbnster, Town Clerk Dated: tJ?-?lf-~.3 - . - 362' AN ORDINANCE AMENDING CHAPTER 12 OF THE HILLSBOROUGH TOWN CODE TO REGULATE FALSE ALARMS RECEIVED AND DISPATCHED BY ORANGE RURAL FIRE DEPARTMENT THE BOARD OF COMMISSIONERS OF THE TOWN OF HILLS BOROUGH ORDAINS AS FOLLOWS: Section 1. Chapter 12 of the Hillsborough Town Code is amended to add a new Section 12-5, to read as follows: Section 12-5 FALSE ALARMS: 12-5(a) PURPOSE (1) The purpose of this section is to establish standards and controls relating to alarm devices, encouraging the alarm user to maintain the operational reliability and the proper use of alarm systems in limiting the unnecessary dispatch of emergency service personnel to false alarms. (2) This section applies to all types of alam1s in which law enforcement or emergency service agencies respond, provides for penalties for violations, and sets conditions for suspension or loss of alarm dispatch of emergency service personnel by Orange Rural Fire Department, or such other emergency service agency as may respond. 12-5(b) DEFINITIONS (1) For the purpose of this section, the following definitions shall apply unless the context clearly indicates a different meaning: ALARM SYSTEM: A device or system that emits, transmits, or relays a signal intended to summon, or that would reasonably be expected to summon a law enforcement or emergency service agency providing service in the Town of Hillsborough. AUXILIARY ALARM POWER SUPPL Y: This is Imown as an UNINTERRUPTED POWER SUPPLY or UPS and should be of sufficient capacity to operate the alarm system for 15 minutes without failure. ALARM SIGNAL/NOTIFICATION: A detectable signal, either audible or visual, or an automatic dialing service or an automatic telephone dialing alarm system, including any other systems designed to be initiated purposely by a person or an alarm system that responds to a stimulus characteristic of unauthorized intrusion, or fire conditions to which a law enforcement or emergency service agency in Hillsborough is expected to respond. ALARM USER: An individual, corporation, partnership, proprietorship, association, governmental or educational entity or any other entity owning or leasing an alarm system, or on whose premises an alarm system is maintained for the protection of such premises. FALSE ALARM: Any activation of an alarm system through mechanical failure, malfunction, improper installation, without an unlawful entry or other condition which the alarm is designed to detect, or through the negligent or intentional acts of the owner or lessee of an . . , 363 alarm system or of the employees or agents or other causes, which activates to summon law enforcement or emergency service personnel, unless the Orange County Communications Center (or other dispatcher) was contacted by the alarm user or his/her agent before emergency service personnel arrive at the alarm location, to report the alarm to be false and no response is required. A false alarm shall not include: (2) Alarms equipped with an auxiliary power supply (UPS) to prevent activation during power surges or failures. (3) Alarms occurring during electrical storms, hurricanes, tornadoes, blizzards and any other similar acts of nature; (4) Intermittent disruption or disruption of the telephone circuits beyond the control of the alarm company and/or alarm user when equipped with a UPS that was overridden and did not prevent the alarm; (5) Electrical power disruption or failure that cause the alarm to be activated even though it operates through a UPS; (6) Alarn1s activated during an alarm system testing procedure shall not be considered false alarms, if the alarm user first notifies the user's alarm company, or designee, and Orange Rural Fire Department of the test so no response is caused; (7) Other extraordinary circumstances not reasonably subject to control of the alarm system owner or user. (8) An alarm is false within the meaning of this section when upon inspection by the responding law enforcement or emergency service agency evidence indicates that no authorized entry or threat to life or property of the premise was committed which would.have activated a properly functioning alarm system. 12-5( c) ALARM USER INFORMATION Whenever the information provided on the alarm user call back or notification roster changes, the correct information must be provided by the alarm user to the Fire Chief within thirty (30) days of the change. Failure to make the changes so the callback or notification roster is updated with correct information may cause the alarm user not to be contacted of the activation. 12-5( d) RESPONSE TO ALARM; DETERMINATION OF VALIDITY (1) Whenever an alarm is activated and law enforcement or emergency service agency responds, the responder on the scene of the acti vated alarm system shall inspect the area and shall determine whether the response was 2 - . ~ 364 in fact necessary as indicated by the alarm system or whether the alarm was a false alarm. (2) No alarm may be silenced or re-set without the authorization of the Fire. Chief on the scene. Evacuation of the premises per the occupancy's evacuation plan should be initiated and continued until the Fire Chief or his designee on the scene orders otherwise. (3) If the response agency at the scene of the activated alarm system determines the alarm to be false, the response unit will notify communications of the false alarm. The Fire Chief shall notify the alarm user by letter of false alarm determination. (4) The Fire Chief shall when requested by the alarm user review the determination that an alarm was false. Such review shall be conducted by the Fire Chief only if the alarm user requests such review in writing, within ten (10) days of the date that the false alarm occurred. The written request for review of a false alann shall include the following information: 1. Alarm user name; 11. Address at which alarm is installed; 111. Date of false alarm being contested; tv. Summary of reason the request for review of the false alam1. 12-5(e) AUDIBLE ALARMS A central station does not monitor audible alarms, therefore requests for law enforcement or emergency service response generally is initiated by neighbors living in the area or a passer- by. Audible systems shall be equipped with an automatic reset device that will reset and cease to sound the alarm after a reasonable period of continuous activation. No audible alarm system shall be manually re-set until the Fire Chief or his designee on the scene so authorizes. 12-5(f) CIVIL PENALTY ASSESSMENT FOR FALSE ALARMS (1) It is hereby found and determined that more than three (3) false alarms within any twelve month period is excessive and constitutes a public nuisance. The failure of owners or users of premises to bring alarm systems as defined in this ordinance may result in such owner or user being charged criminal offense of intentionally creating a false call. (2) The 4th false alarm at a location within a twelve-month period will be assessed a fifty dollar ($50) civil penalty. The 5th call, and any subsequent calls, within a twelve-month period will result in a $200 civil penalty, and each subsequent call within a twelve-month period shall constitute a misdemeanor punishable in accordance with North Carolina General Statutes S 14-4. Each service charge incurred as a result of false 3 . . , 365 alarms at the premises assigned to the alarm user shall be paid within thirty (30) days from the date of receipt of the invoice. (3) After the 4th false alarm to a location within a twelve month period, the agency with the legal responsibility to respond to the alarm may request the alarm be placed in suspension. The responding agency will notify the communications center by letter to suspend dispatching I:esponses to the alarm, giving the effective date, alarm type, alarm location by address, and agency contact person. The communications center shall document all calls from an alarm in suspension, but shall not dispatch the call until authorized to do so by the agency with legal authority to take the alarm out of suspension. Each alarm received while th~ alarm- is in suspension shall be considered false and accrue a fifty dollar ($50) charge for each call. Reinstatement of dispatch to alarm calls will be made only upon receipt of a letter from the responding agency that misuse problems have been corrected and normal dispatch is to resume. . (4) Any charges imposed by this article may be collected by the Fire Chief in a civil action in the nature of debt. (5) The failure of an alarm user to make payment of any civil penalty imposed under this section within thirty (30) days from the date of receipt, may result in collection through legal remedies. 12-5(g) SEVERABILITY If any provision of this article or the application thereof to any person or circumstance is for any reason held invalid, such invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or application, and to the end the provisions of this Article are declared to be survivable. Section 2. This Ordinance shall become effective upon adoption. 4 - . ~ 366 The foregoing Ordinance, having been submitted to a vote, received the following vote and was duly adopted this -1:I:IL day of fl6pkmh&R ,2003. Ayes: S- Noes: g- Absent or Excused: &- ~~ ~~ 5 . . . 367 PETITION \Ve the undersigned would like to express that the out of town water and sewer rates are unfair as they are more than in town residents of Hillsborough, N.C. pay. We feel eyeryone should pay the same rate for use and would like to express this to the City, County, and Boards. N"ame -!iir:g~ Af.L/I [1 'BJt.~o~ . 15eJc;1r 'PAUl M 4-"J #\0. <t '1 A' ~ (....z- l?\' \ e.1 ;J /.. . b-? I. . L 5. ~ ~/U Q 10 o\--M . LQ!)nL~Lcuj \ i.. G 4 3l/lJ ( LA" (e Sf. ti) S" J~61 /I tIet ~ T::JI;- I 7 Ll () I Al Ie e.- sf itj q ~~~ I~~'~a ~~ys '300\ M~ UL st {3vt-~ 3~1 4\ice st "Bx~ . 368 . PETITION We the undersigned would like to express that the out of town water and sewer rates are unfair as they are more than in town residents of Hills borough, N.C. pay. \Ve feel evelyone should pay the same rate for use and would like to express tills to tile City, County, and Boards. . . Address 3~ ~;;;;.o A \,' ce:. ...sJ 1 . 5t-lo l- 38' A- h~-Q. S 1- ~ A{t> I - 3 <6 A-lL~~ ~ 340\ - 3~ ALL~~+ J< pJ./ 340 I ~ 31' /11:." ~ >1. ~ -91J11:<LSi-. '3110\ - 3~ f4~.t.-(. ~j. "3'Lf"I-33 ~ p.. ~J.(D \ cM.l~2~~ ~~ . " <( (/ I A-/:cc-..;..{ .ff"3 0 aa{)G; DJd DC '6&J :J.:J.D'j ot-l ~(C ?rc.. I bot - Y5 Ph.:-ek 7)r If~~~=-ii PI:::te iDtmJiP ( ) ~ LLn lQK / 1- '3 J~ol ~qq.-Pl~ UV-. -VJ() \ - '-\ ';}.. V "" 0 t:\r) e \f) \ I b 0/ - 'I Z fhf{t!. P/- ~g4[)/~ .J~I <3'\01 A \iU- 61. 10-\ ~ 3lf(J( m/rp-3t) L . r( d . . '-11:'0 . 369 PETITION We the undersigned would lik; to express that the out of town water and sewer rates are unfair as they are more than in tovm residents of Hillsborough, N.C. pay. Vole feel everyone should pay the same rate for use and would like to express tIlis to tile City, . County, and Boards. Name Address \-\(\}~ p, \<,. '> L \J..O()~y. l '0/- S~- e1:rO'E'8t D~. '~"{\o... \::>~ ,--^-CJO\) Y J~o.J - S:L- Pt-\of: ~f' \)~. . "H 1/,0 I - 3l - r IiJ2J liE 12 ~. ; Ife. c;. ( J /601 '-,~ ^ - ;0// QEiib... D ' ~~( -~! Ittr1 . ~ ~'1. ~ti~_ I L 0 f /' J, 0 e k I) tl. ! tJ ,L. ~ /J /4 ~k 'I 0:::1 ~1' !tel .2~' A --'__ 0 I (j __--L _~ )~ ~~:f7~<~J~h b~~R' i~~fl .J!ct:l) ~hwx /Jv: L o-r--,IJ J bit I p~ kVt. L1-:f- /1" ./C~) I r:bmJ.x ~ b>~'7 /Ar..l'l r /In ~p II ct./Y"1~ D (ll ~ ".John J.fJ n1t> C f1~c;rf}l f1 lip () ~A^~A 1&_~o.4aA h i~~~$~ ) . . . 370 PETITION We the undersigned would like to express that the out of town water and sewer rates are unfair as they are more than in town residents of Hills borough, N.C. pay. We feel evelyone should pay the same rate for use and would like to express tllis to tlle City, County, and Boards. Address )....:iT - 3? j(,CJII~ r!lJL /t'1/d~I7C. 3fi:11 tlh ~~ i1" f ~qV~J;z~(!, 11 L\ 1\ ho-r-'l7 Il II P A rJ eb e L- 0 t i 7 4,171 .P.l~~ ~ Co-Yl/? I&-D( 'I1/tJE,3f: Ve, tlYfd Co / fo 0\ PtfofB.E.. Drz, LoT CJ..t.o . . . l, ") P'1 .~ V ( .L PETITION We the undersigned would like to express that the out of town water and sewer rates are unfair as they are more than in town residents of Hillsborough, N.C. pay. \Ve feel evelyone should pay the same rate for use and!, would like to express this to g,d:.~ d!~8~ County, and Boards. () IC Hr.L MS~ I v e.- uS CL-- 5 Lt.- /; 5 y;~ S-,u ;a:rye..-:.s N aIne Address ~a~ b~~ - .) I 7 I ^ . rC7cL{~ ~~ 7-'1- \1 6~,~ -~f!:f . 01a.Ak )?-6 . _)~i1/'. ~ Rtssoo - tbO'! PN~ De. I1/;fJ.PE~()(Je?H I'IC/ j~ ~CL lleOt i'hvelK ex 0~(,,()Q ~'Jh1)VJ'^t . \ c,o~ -:5 ~:e~G'.- 'i:-' Itol - PIh b fI (bOt PrloE./31:. ~k. #; 31., / b'/! .I)~" -0 . /], E J\ \) .1oT2.D .. " -...... -- 1[;6" 7?ier.':('r c'~ ~ LC:T I.:{..''( La-- F--- It- tno \...crr- -Wd 'p'Vl?)f~ lQa V lU\- '6)' ~'K (/~. , .//- ~ ;..!. _~L.'....I..->, (l.; f .:J-<( / ' , J<. J '/ '( /) . - / ' , ~ I "...._ L77~'. . . . 372 AGREEMENT FOR CONSULTING SERVICES BE1WEEN THE TOWN OF HILLSBOROUGH AND BROWN AND CALDWELL FOR VULNERABILITY ASSESSMENTS AND EMERGENCY RESPONSE PLAN THIS AGREEMENT is made and entered into on this day of , 2003 by and between the Town of Hillsborough, hereinafter referred to as "Client," and Brown and Caldwell, a California corporation, hereinafter referred to as "Consultant." RECITALS: WHEREAS, Client is authorized to and desires to retain Consultant to ; WHEREAS, Consultant, has available experienced personnel and offers to provide a Vulnerability Assessment to enable Client to enhance the security of its facilities; WHEREAS, Client desires to retain Consultant to perform the services in the manner, at the time, and for the compensation set forth herein; NOW, THEREFORE, Client and Consultant agree as follows: I. SCOPE OF CONSULTANT SERVICES Consultant agrees to perform those services described hereafter. Unless modified in writing by both parties, duties of Consultant shall not be construed to exceed those services specifically set forth herein. A. Basic Services Consultant agrees to perform those basic services described in Exhibit A entitled" Scope of Services," dated August 14, 2003 (the "Services"). Any tasks not specifically described in Exhibit A are Additional Services. The security services further described in Exhibit A are for tlle completion of a Vulnerability Assessment and Emergency Response Plan. The services conform to the Sandia RAM-wrM process. A methodology for determining critical assets will be demonstrated to Client, who will then provide Consultant with a ranked list of critical assets. Using this list, Consultant will determine the Existing Level of Risk. If tlle Existing Level of Risk is greater tllan the Client's Acceptable Level of Risk, Consultant will suggest modifications. to reduce the risk to a point less than or equal to the Acceptable Level of Risk. In addition, an Emergency Response Plan will be prepared. Due to the sensitivity of the services to be performed, close coordination and teamwork between Client and Consultant is necessary. Since neither the Assessment nor the Plan can anticipate all possible scenarios, Client must evaluate its own risk tolerance level and use its own judgment when considering options. Hillsborough Contract vI Page 1 of 8 . . . 373 B. Additional Services Client shall pay Consultant all fees and costs incurred in performing Additional Serviccs provided the services were either (a) authorized by Client, or (b) required to be performed due to emergency conditions at the project site. Client will be deemed to have authorized the Additional Services if Consultant provides Client \vith notification dlat the Additional Services will be performed and Client does not object within five (5) working days after notification. Unless otherwise agreed in writing, Additional Services shall be performed in accordance with Consultant's standard billing rates at the time dle Additional Serviccs are performed. II. RESPONSIBILITIES OF CLIENT In addition to payment for the Services performed under this Agreement, Client shall: 1. Assist and cooperate with Consultant in any manner necessary and within its ability to facilitate Consultant's performance under this Agreement. 2. Designate in writing a person to act as Client's representative with respect to this Agreement. Such person shall have complete authority to transmit instructions, receive information, interpret and dcftne Client's policies, make decisions and execute documents on Client's behalf. 3. Furnish Consultant with all technical data in Client's possession including, but not limited to, maps, surveys, drawings, soils or geotechnical reports, and any other information required by, or useful to, Consultant in performance of its Services under this Agreement. Consultant shall be en tided to rely upon the information supplied by Client. 4. Notify Consultant of any known or potential health or safety hazards existing at or near the project site. 5. Provide access to and/or obtain pernusslOn for Consultant to enter upon all property, whether or not owned by Client, as required to perform and complete the Services. III. AUTHORIZATION AND COMPLETION In signing this Agreement, Client grants Consultant specific authorization to proceed with work specified in Exhibit A. The estimated time for completion is within 180 calendar days of the date Consultant rcceives authorization to proceed with the work from Client. Consultant shall use its best efforts to perform the work specified in Exhibit A within the estimated time. IV. COlvlPENSA TION A. Amount For the Services described in Exhibit A, Client agrees to pay, and Consultant agrees to accept compensation in accordance with Exhibit A. All work shall be performed on a lump sum basis, per the total shown in Exhibit A. B. Payment Hillsborough Contract v I Page 2 of8 . . . VI. V. 374 As long as Consultant has not defaulted under this Agreement, Client shall pay Consultant within 30 days of the date of Consultant's invoices for services performed and reimbursable expenses incurred under this Agreement. If Client has reason to question or contest any portion of any such invoice, amounts questioned or contested shall be identified and notice given to Consultant, within lS days of the date of the invoice. Any portion of any invoice not contested shall be deemed to be accepted and approved for payment and shall be paid to Consultant within 30 days of the date of the invoice. Client agrees to cooperate with Consultant in a mutual effort to resolve promptly any contested portions of Consultant's invoices. In the event any uncontested portions of any invoice are not paid within 30 days of the date of Consultant's invoice, interest on the unpaid balance shall accrue beginning with the 31 st day at the maximum interest rate pennitted by law, and ConsulL'tnt shall have the right to suspend work per Article XII, Suspension of Work. RESPONSIBILITY OF CONSULTANT A. Standard of Care--Professional Services Subject to the express provisions of the agreed scope of work as to the degree of care, amount of time and expenses to be incurred, and subject to any other limitations contained in this Agreement, Consultant shall perform its Services in accordance with generally accepted standards and practices customarily utilized by competent engineering firms in effect at the time Consultant's Services are rendered. Consultant does not expressly or impliedly warrant or guarantee its Services. B. Reliance upon Information Provided by Otl1ers In its performance of services hereunder, Consultant shall rely on information provided by otl1er parties (excepting Consultant's subcontractors); Consultant shall not independently verify the validity, completeness, or accuracy of such information unless otherwise expressly engaged to do so in writing by Client. ASBESTOS/HAZARDOUS MATERIALS Consultant and Consultant's subcontractors shall have no responsibility for the discovery, handling, removal, or disposal of or exposure of persons to asbestos or hazardous or toxic materials tl1at are present in any form at the Project site. Professional services related to or in any way connected with the investigation, detection, abatement, replacement, use, specification, or removal of products, materials, or processes containing asbestos or hazardous or toxic materials are beyond the scope of this Agreement. Client shall be solely responsible for notifying all appropriate governmental agencies, including the potentially effected public, of the existence of any hazardous or toxic materials located on or in the project site at any tune. In the event Consultant encounters asbestos or hazardous materials at the jobsite, Consultant may, at its option and without liability for damages, suspend the performance of services on the Project until such time as Client and Consultant mutually agree on an amendment to this Agreement to address the issue, or Client Hillsborough Contract v I Page 3 of8 . . . VII. VIII. 375 retains another specialist consultant or contractor to identify, classify, abate and/or remove the asbestos and/or hazardous materials. CONSULTANT'S WORK PRODUCT A. Scope Consultant's work product which is prepared solely for the purposes of this Agreement, including, but not limited to, drawings, test results, recommendations and technical specifications, whether in hard copy or electronic form, shall become the property of Client when Consultant has been fully compensated as set forth herein. Consultant may keep copies of all work product for its records, unless otherwise agreed with Client that all work product shall be returned fo Client. Consultant and Client recognize that Consultant's work product submitted in performance of this Agreement is intended only for the project described in tlus Agreement. Client's alteration of Consultant's work product or its use by Client for any other purpose. shall be at Client's sole risk, and Client shall hold harmless and indemnify Consultant against all losses, damages, costs and expense, including attorneys' fees, arising out of or related to any such alteration or unauthorized use. INDEI\1NIFICA TION A. Indemnification of Client Consultant agrees to indemnify, defend, and hold Client harmless from and against any liability to the extent arising out of the negligent errors or negligent omissions of Consultant, its agents, employees, or representatives, in the performance of Consultant's duties under this Agreement. B. Consequential Damages Regardless of any other term of this Agreement, in no event shall either party be responsible or liable to the other for any incidental, consequential, or other indirect damages. Disclaimer of Warranties and Limitation of Liability Client acknowledges that Consultant's services are intended to identify primary vulnerabilities, to assess threats to the security of Client's facility, and to suggest measures to reduce the risk or consequences of undesired events, whether caused intentionally or not, at Client's facility; Client further acknowledges tllat it is not reasonably feasible for Consultant to identify all such risks or propose measures tllat are certain to eliminate such risks. Furthermore, Consultant cannot be responsible for the manner or extent in which its fmdings and recommendations are acted upon, nor for the impact of future conditions differing from those at the time its services were provided. Hillsborough Contract vI Page 4 of8 . . . 376 Consultant makes no warranties or guarantees of any kind, direct or indirect, express or implied, in connection with its services under this Agreement, and expressly disclaims any warranty or guarantee regarding the elimination of risks of undesired events at Client's facility. Client agrees that, to the fullest extent permitted by law, Consultant's total liability to Client for any and all claims, damages, losses or expenses arising in any way out of the professional services provided under this Agreement, regardless of the legal theory under which such liability is imposed is limited to its fee. IX. CONSULTANT'S INSURANCE Consultant shall procure and maintain the following minimum insurance: 1. Commercial general liability insurance, including personal illJury liability, blanket contractual liability and broad-form property damage liability coverage. The combined single limit for bodily injury and property damage shall be not less than $1,000,000. 2. Automobile bodily injury and property damage liability insurance covering owned, non- owned, rented, and hired cars. The combined single limit for bodily injury and property damage shall be not less than $1,000,000. 3. Statutory workers' compensation and employer's liability insurance as required by state law. 4. Professional liability insurance. The policy limit shall be not less than $1,000,000. Upon request, Consultant shall submit to Client certificates of insurance for the policies listed above. The certificates shall provide that the insurance company gives written notice to Client at least ten days prior to cancellation of the policy. x. CONFIDENTIALITY Consultant agrees it will maintain the confidentiality of material it receives from Client which Client has clearly identified as "Confidential" and will not disclose, distribute, or publish to any third party such confidential information without the prior permission of Client. As directed by Client, Consultant shall return or destroy all documents provided by Client at the conclusion of Consultant's services. Notwithstanding the foregoing, Consultant shall have no confidentiality obligation with respect to information that: 1) becomes generally available to the public other than as a result of disclosure by Consultant or its agents or employees; 2) was available to Consultant on a non-confidential basis prior to its disclosure by Client; 3) becomes available to Consultant from a third party who is not, to the knowledge of Consultant, bound to retain such information in confidence. In the event Consultant is compelled by subpoena, court order, or administrative order to disclose any confidential information, Consultant shall promptly notify Client and shall cooperate with Client prior to disclosure so that Client may take necessary actions to protect such confidential information from disclosure. Hillsborough Contract vI Page 5 of8 . . . 377 XI. SUBCONTRACTS Consultant shall be entitled, to the extent determined appropriate by Consultant, to subcontract any portion of the services to be performed under this Agreement. XII. SUSPENSION OF WORK \'(/ork under this Agreement may be suspended as follows: 1. By Client. By written notice to Consultant, Client may suspend all or a portion of the \'(/ork under this Agreement if unforeseen circumstances beyond Client's control make normal progress of the Work impracticable. Consultant shall be compensated for its reasonable expenses resulting from such suspension including mobilization and demobilization. If suspension is greater than 30 days, then Consultant shall have the right to terminate tlus Agreement in accordance with Article XIII, Termination of Work. 2. By Consultant. By written notice to Client, Consultant may suspend the \'(/ork if Consultant reasonably determines that working conditions at the Site (outside Consultant's control) are unsafe, or in violation of applicable laws, or the event Client has not made timely payment in accordance with Article IV, Compensation, or for otl1er circumstances not caused by Consultant that are interfering with the normal progress of the Work. Consultant's suspension of Work hereunder shall be without prejudice to any other remedy of Consultant at law or equity. XIII. TERMINATION OF WORK A. This Agreement may be terminated by Client as follows: (1) for its convenience on 30 days' notice to Consultant, or (2) for cause, if Consultant materially breaches this Agreement through no fault of Client and Consultant neither cures such material breach nor makes reasonable progress toward cure witllin 15 days after Client has given written notice of the alleged breach to Consultant. B. Tlus Agreement may be terminated by Consultant as follows: (1) for cause, if Client materially breaches tIlls Agreement through no fault of Consultant and Client neither cures such material breach nor makes reasonable progress toward cure within 15 days after Consultant has given written notice of the alleged breach to Client, or (2) upon five days' notice if work under this Agreement has been suspended by either Client or Consultant for more tl1an 30 days in the aggregate. c. . Payment upon Termination In the event of termination, Consultant shall perform such additional work as is reasonably necessary for the orderly closing of the Work. Consultant shall be compensated for all work performed prior to the effective date of termination, plus work required for the orderly closing of the Work, including: (1) authorized work performed up to the termination date plus termination expenses, including all labor and expenses, at Consultant's standard billing rates, directly attributable to termination; (2) all efforts necessary to document the work completed or in progress; and (3) any termination reports requested by Client. I-Iillsborough Contract vi Page 6 of 8 . . . 378 Except for termination of Consultant by Client for cause, Consultant shall also receive a termination fee equal to 15 percent of the total compensation yet to be earned under existing authorizations at the time of termination to account for Consultant's rescheduling adjustments, reassignment of personnel, and related costs incurred due to termination. XIV. ASSIGNMENT This Agreement is binding on the heirs, successors, and assigns of the parties hereto. This Agreement may not be assigned by Client or Consultant without prior, written consent of the other. A'V. NO BENEFIT FOR THIRD PARTIES The services to be performed by Consultant are intended solely for the benefit of Client, and no benefit is conferred on, nor contractual relationship established with any person or entity not a party to this Agreement. No such person or entity shall be entitled to rely on Consultant's services, opinions, recommendations, plans, or specifications without the express written consent of Consultant. No right to assert a claim against the Consultant, its officers, employees, agents, or consultants shall accrue to the construction Contractor or to any subcontractor, supplier, manufacturer, lender, insurer, surety, or any other third party as a result of this Agreement or the performance or nonperformance of tlle Consultant's services hereunder. A'VI. FORCE MAJEURE Consultant shall not be responsible for delays caused by circumstances beyond its reasonable control, including, but not limited to (1) strikes, lockouts, work slowdowns or stoppages, or accidents, (2) acts of God, (3) failure of Client to furnish timely information or to approve or disapprove Consultant's instruments of service promptly, and (4) faulty performance or nonperformance by Client, Client's independent consultants or Consultants, or governmental agencies. Consultant shall not be liable for damages arising out of any such delay, nor shall the Consultant be deemed to be in breach of this Agreement as a result thereof. A'VII. INTEGRATION This Agreement represents the entire understanding of Client and Consultant as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. TIus Agreement may not be modified or altered except in writing signed by both parties. Any purchase order issued by Client, whether or not signed by Consultant, and any terms and conditions contained in such purchase order which are inconsistent with this Agreement shall be of no force and effect. A'VIII. SEVERABILITY If any part of this Agreement is found unenforceable under applicable laws, such part shall be inoperative, null, and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect. XIX. CHOICE OF LAW IJURISDICTION Hillsborough Contract vI Page 70f8 . . . 379 This Agreemcnt shall be administcred and intcrpreted under the laws of the state of California. ] urisdiction of litigation arising from the Agreement shall be in that state. xx. ATTORNEYS' FEES In the event either party commences legal proceedings against the other, then the prevailing party shall, in addition to any other recovery, be entitled to recover its reasonable attorneys' fees and all other costs of such proceeding. XXI. NOTICES All notices required under this Agreement shall be delivered by facsimile, personal delivery or mail and shall be addressed to the following persons: Consultant John W. McLaugWin, P.E. Project Manager Brown and Caldwell 309 East Morehead Street, Suite 160 Charlotte, NC 28202 Fax: 704-358-7205 Client Kenneth P. Keel, P.E. Town Engineer Town of Hillsborough 101 E. Orange Street P.O. Box 429 Hillsborough, NC 27278 Fax: 919-644-2390 Notice shall be effective upon delivery to the above addresses. Either party may notify the other that a new person has been designated by it to receive notices, or that the address or Fax number for the delivery of such notices has been changed, provided that, until such time as the other party receives such notice in the manner provided for herein, any notice addressed to the previously-designated person and/or delivered to the previously-designated address or Fax number shall be effective. XXI AUTHORIZATION The persons executing this Agreement on behalf of the parties hereto represent and warrant that the parties have all legal authority and authorization necessary to enter into this Agreement, and that such persons have been duly authorized to execute this Agreement on tlleir behalf. IN WITNESS WHEREOF, tlle parties hereto have executed tlus Agreement as of tlle date first above written. BROWN A~D ~A~ Signature 0~ Printed Name D, f;;4~I(I'A/ s-lef'hm.so~ v.i? TOWN OF Hll~LSBOROUGH Signature Printed Name Title Title Hillsborough Contract v I Page 8 of 8 . . . CONFIDENTIAL 380 Town of Hillsborough, North Carolina Water Supply - Treatment - Distribution System Security Vulnerability Assessment Exhibit A - Scope of Services Objective: The Town of Hillsborough Utilities water system currently serves a population of between 3,300 and 50,000 people. Pursuant to Public Law 107-188, known as the Bioterrorism Law, Hillsborough is required to complete a vulnerability assessment r:v A) prior to June 30, 2004. Within six months following submission of the V j\ to the Environmental Protection Agency (EP A), Hillsborough is also required to certify completion of an emergency response plan (ERP) specific to intentional acts, as identified in the VA. The following scope of work \vill provide a VA document that meets, or exceeds all elements required in PL 107-188, or as currently deemed necessary by the EP A. General: Brown and Caldwell is pleased to present our scope of work for completing a Risk Assessment Methodology for Water Utilities (RAM-\X/Tr\~ based VA. We will utilize knowledge of the full RAM-\'(ITM and the slightly modified RA.M-\X/TM for Small and Medium Water Utilities. This scope represents the most efficient method of completing the assessment utilizing the full expertise and report preparation capabilities of Brown and Caldwell while maximizing the use of your staff and your understanding of the process. Please note that while the scope of work limits the full development of the VA to the top three most critical facilities and the top four high consequence critical assets, we will examine all facilities and all critical assets (single points of failure) within this process. All facilities and all critical assets will be ranked from top to bottom, in order of importance to your critical mission. Additionally, we anticipate recommending numerous utility-wide u-nprovements, as part of the risk reduction process. Task 1. Combined Kickoff, Criteria/Facility Ranking, Design Basis Threat Identification, Fault Tree Analysis and Consequence of Loss Workshop \'(Iho attends: Hillsborough core team including Senior Management Hillsborough Subject Matter Experts (SME's), as needed Brown and Caldwell team (PM, engineer as needed) Meeting Length: Two - 8 hour days (completion of all tasks is presumed to be completed in two days) Action: The t\vo-day meeting will discuss the following: a. Overall project approach and methodology b. Hillsborough system/ operational information needs c. Define core mission of utility d. Discuss level of risk and impact on process e. Define Criteria that impact mission f. Meeting requirements and schedule Brown and Caldwell \vill develop an agenda and other pre-meeting information and send this to Hillsborough prior to the beginning of the two-day meeting. Included in this information will be assistance in determining specifically who, from Hillsborough, needs to be available for the meeting, and beyond. This Hillsborough V ^ Scope-Draft-v) Town of Hillsborough Exhibit A August 14, 2003 Page 1 of 5 . . . Results: Deliverable: Task 2. Site Visits Who attends: Hill,borough VA Scopc-Draft-v3 CONFIDENTIAL 381 information will also aid in allowing the appropriate Hillsborough staff to better understand the actual approach and methodology. Hillsborough will describe the water supply, treatment and distribution system layout and operations in an open team discussion so that Brown and Caldwell fully understands the system. We will perform a pairwise comparison for criteria importance. Next, we will visit Hillsborough facilities and rank facility importance. The top 3 critical facilities will be identified and carried forward for further vulnerability analysis. Identify design basis threats in the l-lillsborough area based on information from local law enforcement, FBI and Hillsborough operational experience. Based on possible Design Basis Threat's (DBT's), develop the DBT's for Hillsborough that will be used for the vulnerability assessment. Hillsborough will identify the process and describe operations of each critical facility. We will develop fault trees for each critical facility. These fault trees will identify the critical assets to maintaining Hillsborough missions. Brown and Caldwell will explain the consequence ranking procedure; Brown and Caldwell and Hillsborough will identify specific consequences relevant to Hillsborough and rank the critical assets relative to the consequences of loss. Mission and criteria that affect the mission will be defined for basis of project evaluations. Hillsborough will begin gathering necessary information and forward to Brown and Caldwell. Any possible follow on meetings will be scheduled with necessary attendees identified. Facilities will be ranked according to relative importance to achieving the mission. The top 3 critical facilities will be carried forward as the facilities studied for the vulnerability assessment. The DBT will be identified for use during the VA process. We will develop process descriptions and fault trees for top 3 critical facilities. The consequence ranking will be produced, listing the top 4 high consequence critical assets to be used in risk equation, regardless of where each is located. Meeting minutes will summarize proceedings and decisions. Mission statement and criteria will be listed for Hillsborough management approval. Results will be used in subsequent assessment and presented in final report. Brown and Caldwell will work with the Hillsborough project manager to create and finalize a project schedule. Meeting minutes will summarize proceedings and decisions. Results will be used for subsequent assessment and presented in final report. Hillsborough core team SME's, as needed Brown and Caldwell assessment team Town of Hillsborough Exhibit A August 14,2003 Page 2 of 5 Site V1Slts will take place over one day; Hillsborough staff assistance will be required during course of visits. We will visit each of the top 4 high consequence critical assets, up to 8 hours total, to characterize existing security measures and observe facility operations. We will provide "on the job" training, during the 8 hours, to the Hillsborough team / staff on assessment methods. The focus of attention will be on the facilities where the top 4 high consequence critical assets are located. Field data of security measures for at least each top 4 high consequence critical asset, presuming this can be accomplished in 8 hours. Site visit notes will be summarized and submitted to Hillsborough for verification and additional information requests. Results will be used for subsequent assessment and presented in final report. Task 3. SCADA System Review SCADA / IT vulnerability ranking, description of SCADA protection systems. Meeting minutes will summarize proceedings and decisions. Results will be used for subsequent assessment and presented in final report. Task 4. Draft Report Preparation and Presentation Meeting (Includes System Effectiveness and Risk) . Meeting Length: Action: Results: Deliverable: Who attends: Meeting Length: Action: . Results: Deliverable: \\lho attends: Meeting Length: Action: . Hillsborough V ^ Scope-Oraft-vJ CONFIDENTIAL 382 Hillsborough SCADA/IT staff Brown and Caldwell SCADA/IT Technical Staff 8 hours Identify eXlstlOg SCADA / IT system and security measures, rank system component relative importance. This presumes that the Hillsborough SCADA / IT staff provides advance completion of a checklist, to be provided by the Brown and Caldwell team. Hillsborough core team including Senior Management Brown and Caldwell team (PM, engineer as needed) No meeting, 5 weeks for Brown and. Caldwell team to complete system effectiveness and determine current risk. Another six weeks for preparation of the draft report with improvement recommendations. After the Site Visits, the Brown and Caldwell team will discuss the results of the Site Visits and the subsequent system effectiveness and existing risk determination, via phone conversation. No meeting, or separate submittal is included for this step. All results and parts of the report will be determined by the Brown and Caldwell team with any relevant input gained from Hillsborough through the phone conversation. After discussing the system effectiveness and existing risk, our team will develop alternatives to improve physical and operational procedures to reduce overall risk of each of the top 4 critical asset at the respective facilities. We will provide study-level cost estimates for each improvement, review existing emergency response plans and develop recommendations for emergency response plan program. We will also develop recommendations for enhancing emergency response plans. This scope Town of Hillsborough Exhibit A August 14, 2003 Page 3 of 5 . . . Results: Deliverable: CONFIDENTIAL 383 presumes a "once through" process where final recommendations are taken from the draft, without the need to go through an iterative process. The draft report will contain System Effectiveness which will provide a summary for each of the top 4 high consequence critical assets, Specific Vulnerabilities worksheets for each of the top 4 high consequence critical assets, Adversary Sequence Diagrams with site schematics and photographs, and the Adversary Strategies and Scenarios for an Outsider and an Insider threat at each of the top 4 high consequence critical assets. The draft report will also contain the summary of the Existing Level of Risk for each top 4 high consequence critical assets and threat including a numerical risk value for each asset. The dra ft report will also contain recommended improvements to reduce critical asset risk to acceptable levels including physical protection and operational changes, mitigation methods as appropriate and recommended modifications to the emergency response plan. Finally, reconunended emergency response plan changes will be presented in the form of Best Practices documents for the main vulnerabilities. Draft report, as a complete vulnerability assessment, containing results of all efforts to date and presenting alternatives and review of the emergency response planning program and presentation of recommendations. Results will be presented in Task 6. Task 5. Draft Report Briefing \\fho attends: I-lillsborough core team including Senior Management Brown and Caldwell team (PM, engineer as needed) Meeting Length: Action: Results: Deliverable: Task 6. Final Report Who attends: Meeting Length: Action: Results: Deliverable: Hill,borough VA Scope.Draft.v3 One meeting, 4 hours maximum Present Draft Report and discuss recommended security improvements. Discuss physical security factors, operational changes, and mitigation factors and possible impacts on reducing costs. Develop a task list as requested by I-lillsborough to refine or modify alternatives to meet mission, operational, and cost objectives. Comments to draft recommendations with a task list for Brown and Caldwell to modify recommendations. Meeting minutes will summarize proceedings and decisions. N/A Task will be completed in approximately three weeks, no meeting. Prepare the final report in general accordance with the Sandia RAM-WIN requirements. Address comments to draft report and refine analysis as necessary and relevant. Final report. Final report. Town of I-lillsborough Exhibit A August 14, 2003 Page 4 of 5 . . . CONFIDENTIAL 384 \Vho attends: Task 7. Final Report Briefing Meeting Length: Action: Results: Deliverable: I-lillsborough core team including Senior Management Brown and Caldwell team (PM, engineer) One meeting, 4 hours maximum Present final report findings and recommendations. Final report presented and discussed at one meeting. I-lard copy of report must also be submitted to EP A secure site, by I-lillsborough. 4 copies of final assessment report plus electronic copy on CD. Task 8 - Emergency Response Plan and Emergency Operating Plan (ERP IEOP) Kick off Meeting .\Vho attends: Meeting Length: Action: Results: Deliverable: I-lillsborough Team (as identified by I-lillsborough) BC team (pM, engineer as needed) Up to eight (8) hours Begin information gathering and identifying expectations and content. Define ERP outline and expectations. Assign responsibility for document maintenance. Finalize schedule. As part of this task, and in support of the Town's current ERP efforts, Brown and Caldwell will provide an outline for the ERP and the EOP's, templates for preparation, and on going support and guidance to the I-lillsborough ERP designee. Included will be guidance on selection of specific incident types and facilities, types of information that needs to be gathered, and areas, not already considered, that need to be addressed. Actual draft and final document preparation will be the responsibility of the Town of I-lillsborough, with Brown and Caldwell providing up to 24 hours of direct support (beyond this Kick Off meeting) Complete outline, expectation, schedule, and plan for completion of the ERP lEap's by the Town with direct Brown and Caldwell assistance. Meeting notes, schedule, ERP outline, leading to a draft and final ERP lEap's. The work described in this Scope of Services wiJl be completed for a Lump Sum fee of $45,000 I-lillsborough V A Scopc.Drart-v3 Town of I-lillsborough Exhibit A August 14, 2003 Page 5 of 5 .... .... . .,",-~.' 385 AN ORDINANCE AMENDING THE ZONING MAP . OF THE TOWN OF HILLSBOROUGH THE BOARD OF COMMISSIONERS OF THE TOWN OF HILLSBOROUGH ORDAINS: Section 1. The Zoning Map of the Town of Hillsborough is hereby amended to rezone 19,680 sf at the intersection of Faucette Mill Road and Cornelius Street from Residential-l 0 to Oeneral Commercial (TM 4.8.D.ll& 11 a) Section 2. All provisions of any town ordinance in conflict with this ordinance are repealed. Section 3. This ordinance shall become effective upon adoption. The foregoing ordinance having been submitted to a vote received the following vote and was duly adopted this 8th day of September, 2003. Ayes: ~ Noes:p- Absent or Ex-cuse~ . . . 386 AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE TOWN OF HILLSBOROUGH THE BOARD OF COMMISSIONERS OF THE TOWN OF HILLSBOROUGH ORDAINS: Section 1. Section 3.4.1 of the Zoning Ordinance of the Town of Hillsborough is amended to permit "Extended Care Facilities" in AR, R-40, R-20, R-15, and R-lO as Special Uses. Section 2. Section 4.48 of the Zoning Ordinance is amended to add subsection m as follows: 4.48.4.mExtended Care Facility 1) The following additional information shall be submitted as part of the application: a. Detailed written description of the services offered to residents both on-site and through other arrangements and which services are included in the base fee and which are available a la carte or as needed. b. Written description of the category of facility that is proposed under the appropriate state regulatory authority and relevant license, certificate of need, or other approval needed from the appropriate state agency. c. Written description of staff levels and training expected in the positions. d. Expected peak hour traffic to/from the site and anticipated number of residents with personal vehicles. 2) The proposed structures appear residential in character. 3) The standards for building setbacks, landscaping, buffering, stormwater control, impervious surface limits, signage, parking, lighting, refuse collection and recycling shall apply as if the site were zoned Office Institutional. No less than 10% of the gross parcel size shall be maintained as outdoor open space or park space. Areas dedicated to required buffer:s, stonn drainage or detention are not considered open or park space. Section 3. The second two paragraphs of Section 4.38 of the Zoning Ordinance are amended to read as follows. No changes are made to paragraph one. If a Special Use Permit application is submitted simultaneously with a rezoning request to a Special Use District, hearings on both matters are held conc~rrently. The Board of Commissioners must act on the rezoning request before it acts on the permit request. If the rezoning request is denied, the permit request is moot. Special Use Permit may be submitted independent of a rezoning to a Special Use district when the use is designated Special Use in the Permitted Use table or in compliance with an approved Master Plan in a Special Use district. Section 4. All provisions of any town ordinance in conflict with this ordinance are repealed. Section 5. This ordinance shall become effective upon adoption. The foregoing ordinance having been submitted to a vote, received the following vote and was duly adopted this 8th day of September, 2003. Ayes: -6 Noes: -U Absent or Excused: tB-' k/v/~ DODD . Armbrister, Town Clerk :s:: - n 0 00 CO Cl "1:1 > CO "'C I~ tv t1l 0 ~ .., 0 "1:1 c: 0 t1l V\ c: V\ t1l ::!.. ~. a .., =l > a- ::r t1l co co r& ~ Cl .., :E t1l :> n 5' :> ~ ~ .';t '" 0 0 t1l a- - ..3 t1l a- x -3 <(S. x 0- . 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UI 0 0 V\ .j:I,. 0 0 .j>. N 0 .j>. 0 0 .j>. <:> 0 0 0 <:> 0 0 0 ;-.J ---l 0 ~ ~ 0 0 ~ 0 0 0 0 0 0 0 0 ..... 0 0\ 0 0 0\ <:> 0 0 0 <:> 0 0 0 <:> 0 0 -3 co m w tv tv - Cl 0 0 0 V\ Z 0. 0. 0. 0. :E ~ Pl ~ '< '< ~ '" '" '" '" 0 ~. ~ ~ ~ ~ ~ ::l: nm Ql C'l 0(fJ ::T ~::l 3 CD l"~ :J m> - ::l~ ~ '" '" '" '" 00 z L8S . . . 388 STATE OF NORTH CAROLINA PA VING CONTRACT TOWN OF HILLSBOROUGH This Contract made this the 8th of September, 2003 by and between the TOWN OF HILLSBOROUGH, North Carolina, a Municipal Corporation located in ORANGE County (hereinafter Town); and Barrett, Irvin & Jordan Construction, Inc. of 805 Wendy Way, Durham, NC 27712 (hereinafter Contractor). WIT N E SSE T H: I. SCOPE OF WORK. The Town hereby employs the Contractor to furnish all labor, materials and equipment to perform all work in manner and form for the following described project: Pave: Approximately 22 Feet Wide Street Name Section of Street Feet From To Latimer St. Nash St. Hayes St. 900 x 22 S. Wake St. W. Margaret Ln. End 365 x 22 Btownville St. Lakeshore Dr. W. King 940 x 22 Cameron St. E. Corbin St. St. Mary's Rd. 2,655 x 22 Webb St. Nash St. Holt St. 670 x 22 Holt St. W. King St. Knight St. 427 x 22 GRAND TOTAL 5,957 Feet The Town will direct the Contractor as to the exact location of the paving during a pre- construction conference with the Public Works Director. The Contractor will be responsible for removing all debris (e.g., soil, asphalt, andotl?er simila~' material) associated with this project. This project will be performed for the lump sum not to exceed $72,650.00. 2. TIME FOR COMPLETION. The Contractor shall commence the work to be performed under this Contract within thirty (30) days of receipt of notice to proceed from the Town Manager or the Public Works Director and shall complete all work hereunder . . . 389 3. within 60 calendar days of the date of beginning, provided that the weather conditions are satisfactory for paving. EXTRA WORK. In the event extra work is necessary, not set forth or contemplated in this contract, the Contractor agrees to faithfully perform all such work under a written change order from the Town setting forth and describing fully the work to be done. The amount to be paid by Town to Contractor for such extra work shall be as specified in a written change order. PAYMENT. The Town hereby agrees to pay Contractor for the faithful performance of this contract, subject to additions and deductions as provided for by approved change orders. The Town will pay the Contractor in full once all the work has been performed strictly in accordance with this contract and accepted by the Town, the total not to exceed $72,650.00. The Town will make the payment to the Contractor on a net 3D-day basis from receipt of invoice. INSURANCE. The Contractor shall take out and maintain during the life of this Contract the following insurance: Statutory Workers Compensation insurance;. Comprehensi ve General Liabi I ity Insurance, Including Independent Contractors Liability coverage and Contractual Liability insurance Covering the Contractor's liability assumed under the paragraph Release and Indemnity; Town as a condition of this Contract may require any other insurance as may be required. GUARANTY. The Contractor hereby agrees to guarantee for a period of one year after date of final payment, the work accomplished under this Contract. The Contractor agrees to repair at no cost to the Town any defects due to faulty workmanship or materials, which may appear in his work during this period. RELEASE AND INDEMNITY. To the fullest extent permitted by law, the Contractor shall release, indemnify, keep and save harmless the Town, its agents, officials and employees, from any and all responsibility or liability for any all damage or injury of any kind or nature whatever (including death resulting there from) to all persons, whether agents, officials or employees of the Town or third persons, and to all property proximately caused by, incident to, resulting from, arising out of, or OCCUlTing in cOlmection with, directly or indirectly, the performance or nonperformance by Contractor (or by any person acting for the Contractor of. for whom the Contractor is or is alleged to 4. 5. 6. 7. . . . 390 8. be in any way responsible), whether such claim may be based in whole or in part upon contract, tort (including alleged active or passive negligence or participation in the wrong), or upon any alleged breach of any duty or obligation on the part of the Contractor, its agents, officials and employees or otherwise. The provisions of this Section shall include any claims for equitable relief or for damages (compensatory or punitive) against the Town, its agents, officials and employees including alleged injury to the business of any claimant and shall include any and all losses, damages, injuries, settlements, judgments, decrees, awards, fines, penalties, claims, costs and expenses. Expenses as used herein shall include without limitation the costs incurred by the Town, its agents, officials and employees, in connection with investigating any claim or defending any action, and shall also include reasonable attorneys' by reason of the assertion of any such claim against the Town, its agents, officials or employees. The Contractor expressly understands and agrees that any performance bond or insurance protection required by this agreement, or otherwise provided by the contractor, shall in no way limit the Contractor's responsibility to release, indemnify, keep and save harmless and defend the Town as herein provided. The intention of the parties is to apply and construe broadly in favor of the Town the foregoing provisions subject to the limitations, if any, set forth in N.C.G.S. 22B-l. SUSPENSION OR TERMINATION OF AGREEMENT: In the event that review of the Contractor's performance shows non-confonnance to the terms and conditions contained herein as a result of the Contractor's errors, omissions or negligent acts, the Contractor shall be in breach of this agreement and the Town may take corrective action as it deems necessary, including, but not limited to, withholding or reduction of payment. The Town shall also have the right to suspend this agreement upon written notice to the Contractor. Such written notice shall state the reasons for suspension and allow for a review period of ten (10) days during which the contractor shall be provided with an opportunity to respond with an explanation or justification, and/or shall undertake any reasonable remedial action required by the Town. If, in the opinion of the Town, the Contractor remains in violation of this agreement at the completion of the ten (10) day suspension period, the Town shall have the right to terminate this agreement whereupon all obligations of the Town to the Contractor shall . . . 391 cease. In the event this project is terminated prior to completion of the services by the- Contractor, the Contractor shall be paid for services performed to the date of termination. In no event will the amount due Contractor in the event of termination exceed that amount set forth in paragraph 4 of this agreement. Nothing contained herein shall prevent the Town from pursuing any other remedy, which it may have against Contractor including claims for damages. 9. ASSIGNMENT OF AGREEMENT. It is mutually agreed by the parties hereto that this agreement is not transferable by either party without the prior written consent of the other party to this agreement. 10. OTHER LAWS AND REGULATIONS. Contractor will comply with any and all applicable federal, state and local standards, regulations, laws, statutes and ordinances regarding toxic, hazardous and solid waste and any other pollutants; public and . private nuisances; health or safety; and zoning, subdivision or other land use controls. Contractor will take all reasonable necessary, proper or required safety preventive and remedial measures in accordance with any and all regulations and directives from the North Carolina Department of Human Resources, the United States Environmental Management, health departments, and to any federal, state or local agency having jurisdiction, to ensure the prompt prevention or cessation (now or in the future) of violations of either the applicable provisions of such standards, regulations, laws, statutes and ordinances or any permits or conditions issued hereunder. 11. AMENDMENTS. This agreement shall not be modified or otherwise amended except in writing signed by both the parties. . . . 392 IN WITNESS WHEREOF, the Town has caused this agreement to be duly executed in its name and behalf and the Contractor has caused this agreement to be duly executed in its name and behalf. TOWN OF HILLSBOROUGH By: Joe Phelps, Mayor BARRETT, IRVIN & JORDAN CONSTRUCTION, INe. By: John W. Barrett Title: ATTEST: By: Donna F. Armbrister, Town Clerk This instrument has been preaudited in the manner required by the Local Government Budget and Fiscal Control Act. Sherry Carter, Finance Director JAH-8-1999 08:031=' FROM:John 8. Ton: JBarretl919-477-7197 ~h' l}S" '700: 1 '3 "J '~1';'1.'1;;..8~ TO: 6442::'38 SZ;[~IJII''''''( U.}.lT "~_.r;.tt:. P:2<3 r-.'.,;.,L . 19'') v J (';-.)l'I'I;,I~te S. l\iWl'.1 ~ r.r:, '.1flCTl'lf . G(~I)lrtF.I":'" . Re".%r.~lil "<1t~mly.l Q 2'(/(')3 l,'r. [leme\I,'C l'ot1~ 1 "'."0 (\fHm~~T')u~l, It\': Barntr. frvla. !Iud Jtmtau+ lLl~. i\>!l\.1' \lr P01'5: 1 wlluM lik~ Ie, write (10 hclIII Ij'Of ,f,)\.tI ~RJ:r~:l, (iarlJIY In'm, and (llr:r:""I11 J~'f~J;iII, i"lwnc:', "j"!h; "O')\'e-fcfettnc.\ld (;ljf,~!)"'fI.)'. . fll1lJ'er!, In'i.,., and hii'.jw"l;l\.: l~ n ~uhl"ntra'-',<.r on 1\\:iIlY (If (JUt pl'\lj.:\:\s. 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Dwhal"l, ~Ji)rll1 (";.1ro'llltl 27705 · Offiut: 0 ~ (+ ~7! -1 d71 .. h.1.X.:Jl ~.471 .2686 . . . JAN-8-1999 08:03F FROM:John & Tc,n, jSarret.t 919-477-7197 TO: 6442390 H i k t. ,. C (l \" , ~H C ! Ii f" ( I.) 1\ 1(1 \ \ \ '. ,"1" ,,', . ",: Mil) 2. ]On~ ~~lml1 Llrolmil L!\':('llsin1i B(lilrd lor ric-l1L-/'a I ( nil! 1111 tors RJ".: I dl~rorrelert'm:e, .Iph!~ W Ibrn'tl, Harrt'lt.lrvlll & J<)rd.1o ('(l1'\"'nJ(-{ion. Ilk' 1'0 Wh',\n1 If May Cont:t:rn' P !t.:a~' a":l::.:pl this !t;;lln a~, Tt1L:r~n<.:c for .IC1l111 W [l"rl.t'll \11' Hal/l:n ha$ \V(ll kc-d ~ U o)ukllfltrLlUor lilT my company on variom proie.:!'; 1 hI (II J!:d\lIllt thl' pct:;1 "'l",tl. Ills W(lr~ O:Ind l,;ondlJe[ rrovc" to ~.:- vW)' C0mpctcnt and pmfe.""jona' Thl:s(' proj('cl" in(:ll1d~ ~lilth CtroliJl<.l N..tlion.\J (/llaru Rdllg( I k.1JYU:.1rlt'r'; in Klltncr $Inri C8/ WI I I viii/; (,"lIll'r in Durham. I r I miiy he nffmthct ",en IC',,'" plU.I:,C l'unlall me ,~t (91 QJ hx2.() 77"\ Rcs{X'ctlull) . 1 ,~ U' ., I "., .!::J h) )I.." h.lll"l' Conslructlon Compan;. P:3<3 394 . .. . 395 AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE TOWN OF HILLSBOROUGH THE BOARD OF COMMISSIONERS OF THE TOWN OF HILLSBOROUGH ORDAINS: Section 1." Section<~ti7 of the Zoning Ordinance of the Town of Hills borough is amended by adding subsection "d," as follows: d) Temporary signs, either exempt or non-conforming, located within the public right-of-way may be removed by town staff if they are determined to be in violation of this section. Signs owners will be contacted in writing or by telephone if they can be identified within 10 days of sign removal. Signs will be stored for 30 days from removal for retrieval by the owners. Section 2. All provisions of any town ordinance in conflict with this ordinance are repealed. Section 3. This ordinance shall become effective upon adoption. The foregoing ordinance having been submitted to a vote, received the following vote and was duly adopted this 8th day of September, 2003. Ayes: r Noes: tIr" Absent or Excused: D kt/~~ Donna F. Armbrister, Town Clerk . . . .----. 396 AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE TOWN OF HILLSBOROUGH THE BOARD OF COMMISSIONERS OF THE TOWN OF HILLSBOROUGH ORDAINS: Section 1. Section 2. Section 3. Section 4. Section 5.24.b of the Zoning Ordinance of the Town of Hillsborough is amended to read as follows: b) All 01, CC, GC. and HIC with frontage along streets classified as sub-collector or greater shall provide paved sidewalks 5 feet in width along the parcel's street frontage. Section 5.24.e of the Zoning Ordinance of the Town of Hillsborough is amended to read as follows: e) All walkways shall be adequately maintained and kept in a neat manner. All provisions of any town ordinance in conflict with this ordinance are repealed. This ordinance shall become effective upon adoption. The foregoing ordinance having been submitted to a vote, received the following vote and was duly adopted this 8th day of September, 2003. Ayes: .5 . Noes: Q Absent or Excused: b -. . -. 397 AN ORDINANCE AMENDING THE SUBDIVISION REGULATIONS - OF THE TOWN OF HILLSBOROUGH THE BOARD OF COMMISSIONERS OF THE TOWN OF HlLLSBOROUGH ORDAINS: Section 1. The definition of common open space in Section 2 of the Subdivision Regulations of the Town of Hills borough is amended to read as follows: Section 2. Section 3. Section 4. Section 5. . " That area within a development that is not covered with a structure or impervious surfaces, which has been set aside for resource protection, amenity, and/or buffers (including water quality buffers on streams and required land use buffers), and that may be held by the developer, property owners' association, unit of government, or non-profit entity. Buffers and building setbacks that are privately held on individual lots are not included in the open space calculation. Stonnwater control devices, including swales and ponds, recreation areas, reserved right-of-way, and easements for above ground activities or utilities are not considered open space. Common open space shall be designated as such on the preliminary and final plans. Section 4.63.a of the Subdivision Regulations of the Town of Hillsborough is amended to read as follows: Every person, firm or corporation who subdivides land for residential and/or non-residential purposes shall be required to dedicate a portion of such land for the purpose of open space preservation to preserve significant natural features and cultural resources. The dedication of open space areas shall not be required for a minor subdivision; provided, however, the provisions of Section 4.6..2.f (payments in lieu of dedication) shall apply at the time of approval of a major subdivision to all lots previously created through the minor subdivision process following the effective date of these provisions. Section 4.6.3.b of the Subdivision Regulations of the Town of Hillsborough is amended to read as follows: The subdivider shall provide land for common open space within standard subdivisions and multi- family developments equal to 10% of the gross parcel (development tract) size. Within cluster subdivisions, open space shall be the 30% of the gross parcel (development tracttsize or the 10% for standard subdivisions plus the sum of all reductions in minimum lot area as a result of the cluster form of development, whichever is greater. All provisions of any town ordinance in conflict with this ordinance are repealed. This ordinance shall become effective upon adoption. The foregoing ordinance having been submitted to a vote, received the following vote and was duly adopted this 8th day of September, 2003. Ayes: 6 Noes: .e- Absent or Excused: ()-- ~)/L4;~ onna F. Armbrister, Town Clerk .. ... . ',--~-- 398 AN ORDINANCE AMENDING THE SUBDIVISION REGULATIONS . OF THE TOWN OF HILLSBOROUGH THE BOARD OF COMMISSIONERS OF THE TOWN OF HILLSBOROUGH ORDAINS: Section 1. Section 2. Section 3. Section ~.4.3.f of the Subdivision Regulations of the Town of Hillsborough is amended to read as follows: Sidewalks shall be five feet in width and constructed of 5 inches of concrete. Expansion joints shall be installed every thirty feet, with score marks every ten feet. All provisions of any town ordinance in conflict with this ordinance are repealed. This ordinance shall become effective upon adoption. The foregoing ordinance having been submitted to a vote, received the following vote and was duly adopted this 8th day of September, 2003. Ayes: ~ - Noes: ..()- Absent or Excused: .GJ-" ~!nk~ D ~a F. Armbnster, Town Clerk