HomeMy Public PortalAbout02-09-2004 Regular Session
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Town
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MINUTES
HILLSBOROUGH TOWN BOARD
February 9, 2004
7:30 PM, Town Barn
The Hillsborough Town Board held a regular meeting on February 9, 2004 at 7:30 PM in the
Hillsborough Town Barn. Present for the Board Meeting were Mayor Joe Phelps, and
Commissioners Mike Gering, Frances Dancy, Evelyn Lloyd, Eric Hallman, and Brian Lowen.
Staff present were Town Manager Eric Peterson, Planning Director Margaret Hauth, Interim
Assistant Finance Director Greg Siler, Police Chief Nathaniel Eubanks, Assistant Town
Manager/Public Works Director Demetric Potts, Town Engineer Kenny Keel, Town Attorney
Bob Hornik, Management Intern Kent Wyatt and Fire Marshal/Code Enforcement Officer Todd
Chavious.
Mayor Joe Phelps called the meeting to order at 7:32 PM.
1. PUBLIC CHARGE
Mayor Phelps did not read, but indicated that it would be followed.
2. AUDIENCE COMMENTS REGARDING MATTERS NOT ON THE PRINTED
AGENDA '
Leanne Castil, a resident of Hillsborough and UNC student, discussed the Patriot Act and
distributed packets of information on the Act.
Will Atherton discussed the budget, in particular concerns about lowering the minimum charge
for water and sewer charges.
Jackie Posati, a resident of Beckett's Ridge, addressed the Noise Ordinance - Section 5.3 of the
Town Code. She inquired about possible changes to keep up with future development. She
proposed the Town inquire about similar ordinances from Cary, Chapel Hill and Durham. She
also mentioned requiring construction companies to take one day off a week, possibly Sunday.
3. AGENDA CHANGES & AGENDA APPROVAL
Mayor Phelps requested adding the Human Relations resolution before Item 8.A.
Commissioner Lloyd requested placing discussion of the Noise Ordinance as Item 8.0.
By consensus, the Board approved the agenda with the aforementioned additions.
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4. APPROVAL OF THE MINUTES OF THE DECEMBER 1, 2004 REGULAR
MEETING, THE JANUARY 12,2004 REGULAR MEETING, THE JANUARY 12,
2004 CLOSED SESSION, AND THE JANUARY 27, 2004 JOINT PUBLIC HEARING
Commissioner Dancy noted that in the Minutes of the January 12,2004 meeting on page 6, line
7 the word "the" needed to be added before "proposal".
5. REPORT FROM THE TOWN MANAGER
Town Manager Eric Peterson stated that he had no report.
Mayor Phelps inquired about the percent of employee salaries spent being ahead of schedule.
Town Manager Peterson stated each situation would be examined on a case-by-case basis.
6. REPORT FROM THE TOWN ENGINEER
Town Engineer Kenny Keel updated the Board on two sewer spills caused by electrical issues.
Engineer Keel informed the Board that a letter was sent to the Orange County Engineer about
implementing restrictions.
Engineer Keel informed the Board a new generator is operational at Town Hall. Commissioner
Gering inquired about the installation of generators at the pump stations. Keel stated generators
will be installed at the Hassell Street and Mayo Street Water Booster Pump Stations soon.
Engineer Keel will be informing customers about the April I st change to Chlorimination. Mayor
Phelps requested mentioning the switch on town bills and informing new users.
7. APPOINTMENTS
A. Appointment of Representative to serve on the new Orange County Library Services
Task Force
Mayor Phelps asked about recruitment efforts and suggestions for a representative.
Commissioner Lowen requested to know the meeting time. Town Manager Peterson offered to
place a newspaper advertisement.
Mayor Phelps mentioned adding this item to the website.
8. ITEMS FOR DECISION - REGULAR AGENDA
ADDED ITEM A.l. Human Relations Month Proclamation
By consensus, the Board approved the Human Relations Month Proclamation as presented. A
. copy of the Proclamation is hereby made a part of these official Minutes as an Attachment.
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ADDED ITEM A.2. Resolution in support of One-Book One-Community Project
The Board requested the Town Manager obtain further information regarding this Resolution so
the Board could make a better informed decision. By consensus, this Resolution was tabled to
the February Workshop for decision.
A. Consider approval of the FCC 1240 maximum permitted Basic Service Tier Rate and the
FCCl235 "Add-on" rate applications and FCC120-5 Equipment and Installation Rates
submitted by Time Warner Cable as complaint with FCC rate regulations and approved
subject to conditions
Robert Sepe, President of Action Audits, LLC reviewed the procedures for rate adjustment. He
stated proposed rates comply with FCC guidelines. He believes increased competition might
cause Time Warner Cable to charge lower rates. A case pending in Durham County also could
provide additional information that might allow the process to be reopened.
Commissioner Hallman who requested a further examination of the rates thanked Mr. Sepe for
the information.
Upon a motion by Commissioner Dancy, seconded by Commissioner Lloyd, the Board moved to
approve the Basic Service Tier Rate and the FCCl235 "Add-on" rate applications and FCC120-5
Equipment and Installation Rates by a vote of 5-0. The motion was declared passed.
B. Discuss Interlocal Agreement with the Orange Rural Fire Department to allow the
location of an antenna and building at the Cornwallis Hills' Water Storage Tank
Town Manager Eric Peterson noted the possible agreement must be advertised to allow the
public to have time to consider.
Town Attorney Hornik drafted the agreement that attempts to cover all areas. The agreement was
based in part on information from the Fire Department.
Mayor Phelps suggested notifYing residents of Cornwallis Hills.
By consensus, the Board agreed to place on March agenda.
C. Consider which option to pursue to alleviate sewer overflow problems at Lakeshore
Drive Pump Station
Town Engineer stated the updated estimates and the Water/Sewer Advisory Board
recommendation have been provided to the Board.
Commissioner Gering inquired if Options A - Outfall and Option B - Pump Station Upgrade
provide the same security. Commissioner Gering also wanted to know if the proposed design is
based on the Elizabeth Brady Road Pump Station. Engineer Keel noted the differences and
remarked style, location, and surrounding industry must also be considered in comparing Pump
Stations.
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Commissioner Gering stated his concern for possible damage to ecology and wildlife based on
information from Mrs. Olson and North Carolina Wildlife Regional Commission.
Commissioner Gering wants to ensure ecology and wildlife returns to original state.
Commissioner Hallman stated his appreciation for the Water/Sewer Advisory Board
recommendation but wonders if a different path has been considered. Engineer Keel stated the
path can be shifted a little with deeper cuts that involve more expense.
Commissioner Lowen presented the Board a map of sewer outfall. He stated that he does not
understand the concern about the streams. He also noted the CIP and long-term vision of the
Town calls for an outfall. Commissioner Lowen stated a national shift away from pump stations.
He stated approving Option B places the priority of one or two citizens above Town interests.
Commissioner Gering questioned whether best practices are incorporated into the outfall design.
Jim Parker, a Sear-Brown representative, stated he did not specifically look at the best practices
but they usually work to minimi7.e impact to ecology and wildlife.
Upon a motion by Commissioner Lowen, seconded by Commissioner Dancy, the Board
considered approval of the Option A - Outfall.
Upon a motion by Commissioner Gering, seconded by Commissioner Hallman, an amendment is
proposed to require contractor to follow best practices of Wildlife Commission.
Town Manager Peterson stated the amendment could be used as a directive to the engineering
consultant. He stated a revised contract, including the proposed amendment would have to be
brought back to the Board for consideration at a future meeting, thus allowing for inclusion of
the best practices, if deemed appropriate by the Board.
Commissioner Hallman stated his opposition to the motion and amendment. He states Option A
and Option B carry a similar fmancial impact. In addition, 70% of spills come from outfalls. He
states downstream problems is the reason Commissioner Lowen's property is not affected by
Outfall. He states support for enforcing buffers and set backs. Commissioner Hallman stated a
Pump Station as a better solution.
The proposed amendment was approved by a vote of 5-0. The motion was declared passed.
The proposed motion to pursue Option A - Outfall with an amendment requiring the use of best
practices by Sear-Brown is approved by a vote of3-2. Commissioners Lloyd, Dancy, and Lowen
voted Aye; and Commissioners Gering and Hallman voted Nay.
Commissioner Lloyd stated her reasons for voting to approve the motion noting her experience
with the Health Board and potential for long-term failure of a Pump Station outweighs the other
Issues.
D. Consider approval of Amendment #5 to the Engineering Services Contract for the Water
. Plant Upgrade
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Town Engineer Kenny Keel stated the contractor is behind schedule by 3 months. He stated as of
today, $90,000 in fines could be issued. The Board will be able to decide the amount of
liquidated damages (fines) at the end of the project. These fines will cover additional costs for
engineering services.
Commissioner Lloyd inquired about the reasons for the delay. Engineer Keel stated poor
management practices and changes on the contractor's part as reasons. He also stated the
generator is operational for the Pump Station and in two months the generator will operate the
whole plant.
Upon a motion by Commissioner Lloyd, seconded by Commissioner Lowen, the Board moved
to approve Amendment #5 to the Engineering Services Contract for the Water Plant Upgrade by
a vote of 5-0. The motion was declared passed. A copy of the Contract Amendment is hereby
made a part of these official Minutes as an Attachment.
E. Consideration of Special Use Permit for Carillon Assisted Living to build a 96-bed
licensed assisted living center at 1911 Orange Grove Road with future expansion to 128
beds
Planning Director Margaret Hauth stated a Public Hearing held was held and the Planning
Board recommended approval of the project. She has developed two resolutions for the Board's
consideration, one for and one against the project. The Planning Board approved the project with
conditions.
Commissioner Gering inquired about the Orange Grove Road Task Force recommendations
about sidewalks. Hauth stated the Task Force encourages sidewalks.
Commissioner Lloyd stated an interest in placing money earmarked for sidewalks in escrow.
Town Attorney Hornik stated this is not in the Ordinance. He stated flexibility could be given to
the applicant by requiring construction of a sidewalk or placing money in escrow. Hornik stated
a close estimate could be provided to allow the correct amount to be set in escrow.
Planning Director Margaret Hauth stated the project is not in the Town limits. The Planning
Board has recommended annexation. Commissioner Hallman inquired if a project is annexed at
a later date, can requiring sidewalks be a required before.
Karen Moriarty, President of Carillon Assisted Living, stated their intent to build sidewalks
immediately or through a payment in lieu. She also is not opposed to annexation. She believes it
is easier to seek annexation after the project is approved.
Town Manager Eric Peterson inquired about the annexation timeline. Hauth stated a
water/sewer extension must be dealt with first. Peterson stated the Board must decide about
annexation and water/sewer. Commissioner Gering stated a desire for project to seek
annexation.
Planning Director Margaret Hauth stated the project must be given 12 months written notice to
construct a sidewalk. She proposed an edit to condition #3 to read, "The owner will construct a
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sidewalk along Orange Grove Road of the same materials and standards within 12 months of the
receipt of written notice that a sidewalk is or will be extended to the site by the Town or
NCDOT'.
Upon a motion by Commissioner Gering, seconded by Commissioner Hallman, the Board
moved to approve the Special Use Permit for Carillon Assisted Living to build a 96-bed licensed
assisted living center at 1911 Orange Grove Road with the aforementioned special condition
noted by Planning Director Hauth by a vote of 5-0. The motion was declared passed. A copy of
the Resolution Granting A Special Use Permit is hereby made a part of these official Minutes as
an Attachment.
F. Consideration of an ordinance to amend the Zoning Ordinance to create a light industrial
zoning category and related standards
Planning Director Margaret Hauth stated all relevant standards and definitions apply. A Public
Hearing was held and the Planning Board reviewed the Ordinance.
Commissioner Dancy inquired if one particular business is included in the ''mail order house"
category. Hauth stated that business was placed in a different category.
Upon a motion by Commissioner Dancy, seconded by Commissioner Hallman, the Board moved
to approve the ordinance to amend the Zoning Ordinance to create a light industrial zoning
category and related standards by a vote of 5-0. The motion was declared passed. A copy of the
Ordinance Amending the Zoning Ordinance To Create the Light Industrial District is hereby
made a part of these official Minutes as an Attachment.
G. Consideration of an ordinance to amend the Zoning Ordinance to amend the permitted
uses within the General Industrial district and related standards
Planning Director Margaret Hauth stated the similarity of uses in "light industrial" and "general
industrial". The Planning Board recommended the adoption of the Ordinance.
Upon a motion by Commissioner Hallman, seconded by Commissioner Lloyd, the Board moved
to approve the Ordinance to amend the Zoning Ordinance to amend the permitted uses within the
General Industrial district and related standards by a vote of 5-0. The motion was declared
passed. A copy of the Ordinance to Amend the Zoning Ordinance to Amend the General
Industrial District is hereby made a part of these official Minutes as an Attachment.
H. Consideration of an Ordinance to rezone six parcels from General Industrial to Light
Industrial
Planning Director Margaret Hauth stated 3 property owners are in favor of the Ordinance; 3
property owners are opposed.
Mayor Phelps recommended not to rezone 10L, 8B, and 8C.
Commissioner Gering wanted to know which properties did not want to be rezoned.
Commissioner Gering stated a consensus exists not to rezone the property wishing not to be
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rezoned.
. Commissioner Hallman stated the Ordinance allows the Town to protect itself.
Planning Director Margaret Hauth stated that based on the desire of the Board, the Ordinance
will only include Carrot Top and Eno River properties.
Upon a motion by Commissioner Gering, seconded by Commissioner Lowen, the Board moved
to approve the Ordinance to rezone two parcels - Carrot Top and Eno River - from General
Industrial to Light Industrial by a vote of 5-0. The motion was declared passed. A copy of the
Ordinance Amending the Zoning Map is hereby made a part of these official Minutes as an
Attachment.
Upon a motion by Commissioner Lowen, seconded by Commissioner Hallman, the Board
moved to approve the ordinance to rezone one parcel owned by the Town (Gold Park) from
General Industrial to Agricultural Residential zoning by a vote of 5-0. The motion was declared
passed. A copy of the Ordinance Amending the Zoning Map is hereby made a part of these
official Minutes as an Attachment.
I. Monthly Code Enforcement Update
Fire Marshal/Code Enforcement Officer Todd Chavious informed the Board of a postal mistake
that requires the Town to send a letter to those going to court.
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Mayor Phelps stated neighboring towns, Durham and Wilson, are following Hillsborough's
enforcement efforts.
Commissioner Hallman inquired about a property on the block of Union Street. Chavious stated
the court date is coming up for that property.
Mayor Phelps declares a recess at 9:38 PM.
Mayor Phelps reconvened at 9:43 PM.
J. Approval of Amendment No. I to the Agreement between Hillsborough and Durham
Establishing Conditions for the Purchase of Water
Town Engineer Kenny Keel stated the agreement lasts for five years and has been approved by
Durham. Keel states water has never been sold to Durham. The previous agreement expired last
July.
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Upon a motion by Commissioner Lowen, seconded by Commissioner Lloyd, the Board moved
to approve Amendment No. I to agreement between Hillsborough and Durham establishing
conditions for the purchase of water by a vote of 5-0. The motion was declared passed. A copy
of Amendment No. 1 to the Agreement Between Hillsborough and Durham Establishing
Conditions for the Purchase of Water is hereby made a part of these official Minutes as an
Attachment.
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K. Discussion of Waters tone Issues
Mayor Phelps stated a 30-minute limit on discussion. Mayor Phelps inquired if the fmancial
analysis was based on a proposed community college. Town Manager Peterson stated that yes
the analysis was based on the community college. Mayor Phelps stated a desire for other options
if the community college does not locate in Waterstone.
Jack Smyre stated a desire to work with the Planning Board in developing other uses. He stated
his intent to keep property as a CCR use.
Commissioner Gering inquired about cultural and historical survey. Smyre stated it had not been
completed.
Commissioner Gering inquired about the park and ride situation. Smyre stated that park and ride
sites are in the plans.
Commissioner Gering inquired about shared parking in the development. Smyre stated that
cross access is expected for adjacent uses.
Commissioner Gering inquired about recycling centers. Smyre stated that recycling centers
would be a part of the development.
Commissioner Gering inquired about pocket parks. Planning Director Margaret Hauth stated
that pocket parks are included in the revisions.
Commissioner Gering inquired about the storm water basin arrangement. Assistant Town
Manager/Public Works Director reported that Orange County might not be required to provide
an arrangement.
Commissioner Gering inquired about the signage standards. Planning Director Hauth stated the
topic had not been discussed. Town Attorney Hornik stated that signage could be enforced on a
pod-by-pod basis. Smyre stated a mutual interest in developing appropriate signage.
Commissioner Hallman inquired about affordable housing. He stated units might need to be
added for school teachers, community college workers and others.
Mayor Phelps inquired about competition between Waterstone and Hampton Pointe. Smyre
stated that Hampton Pointe is aware ofWaterstone. Smyre stated that the market should allow
both projects to succeed.
Commissioner Hallman stated an interest in Waterstone incorporating the Durham Regional
Transportation Plan. The plan calls for a widening of Old 86. He inquired if this provides
Waterstone with the proper buffer.
Smyre stated the southern corridor has enough land. He stated that shifting lines might be
needed to supply northern corridor.
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L. Discuss the Suggestion of Having the Board Meet with the Town's Various Advisory
Boards
Mayor Phelps reported that this process has started.
Commissioner Gering reported that the Parks and Recreation Board and the Planning Board have
already met with the Town Board.
Commissioner Lowen suggested bringing all the boards together for a joint meeting.
Mayor Phelps suggested continuing these meetings after the budget process. Mayor Phelps stated
advisory boards could address priorities to the Board. Mayor Phelps suggested allowing each
advisory board thirty minutes at a work session.
Commissioner Gering suggested Town staff should schedule meetings with the remainder of
advisory boards starting in July.
M. Consideration of change in Town's Mileage Reimbursement Rate
Upon a motion by Commissioner Lloyd, seconded by Commissioner Lowen, the Board moved
to approve the change in the Town's mileage reimbursement rate to equal that of the IRS
standard by increasing the allowable rate of reimbursement from 36 cents per mile to 37.5 cents
per mile by a vote of 5-0. The motion was declared passed.
. N. Discuss the HOT TOPIC(S) for the February Workshop
Mayor Phelps suggested having Waterstone as a topic for February Workshop.
ADDED Item: Consider Revising the Noise Ordinance.
Commissioner Lloyd stated that noise was a previous concern with the construction of Hampton
Pointe. She suggested adding this discussion to the March agenda
Mayor Phelps stated a desire to add this item to March workshop. He also wants Town staff to
investigate Ordinances from other municipalities.
Commissioner Lowen suggested examining the Noise Ordinances of Carrboro, Mebane, Graham
and Orange County.
Town Manager Eric Peterson agreed to have Town staff examine other Noise Ordinances.
9. CLOSED SESSION
A. Closed Session to Discuss Two Potential Litigation Cases
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Upon a motion by Commissioner Lowen, seconded by Commissioner Lloyd, the Board moved
to go into Closed Session to Discuss two Potential Litigation Cases by a vote of 5-0. The motion
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was declared passed.
. 10. ADJOURN
Upon returning to Open Session and upon a Motion by Commissioner Gering, seconded by
Commissioner Hallman, the Board moved to adjourn the meeting at 10:53 by a vote of 5-0. The
7~ ~~~l~ passed.
Respectfully s~
Kent Wyatt
Management Intern
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HUMAN RELATIONS MONTH PROCLAMATION
. WHEREAS, recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of :freedom, justice and peace in Orange County, and
WHEREAS, it is of the utmost importance that we take all steps necessary to eradicate practices of
discrimination against individuals, which are detrimental to freedom, justice and peace in our County; and
WHEREAS, the Human Relations Commission believes that in order to achieve justice and equal
opportunity for all Orange County residents, we must all strive to create an atmosphere where people are
valued and accepted rather than merely tolerated, and therefore continue to promote that idea through the
theme: "Building Bridges: From Tolerance to Acceptance"; and
WHEREAS, the Human Relations Commission honors youth leaders, individuals and businesses
who exemplify the ideals of justice and equality in the tradition of Dr. Pauli Murray with an award; and
WHEREAS, the Orange County Human Rights and Relations Commission and Department have
diligently served the County of Orange since 1995 and are committed to promoting equal treatment,
opportunity and understanding throughout the community; and
WHEREAS, the County's Civil Rights Ordinance specifically prohibits discrimination based on an
individual's race, color, c~ religion, national origin, sex, disability, age, veteran status and familial
status; and
. WHEREAS, the County recognizes the dignity and worth of each individual and desires to
promote and maintain equality and good will among individuals, races, ethnic groups and persons of
varying social, religious and economic status, ancestry, sexual orientation, marital status or status with
regard to public assistance;
NOW, THEREFORE, We, The Town Council of the Town of Hillsborough, do hereby proclaim February
2004 as "HUMAN RELATIONS MONTH" in Orange County and challenge our citizens to celebrate
multiculturalism in our county by encouraging citizens to embrace our diversity.
This the 9th day of February, 2004.
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AMENDMENT NO.5
CONTRACT FOR ENGINEERING SERVICES
BETWEEN THE
TOWN OF HILLSBOROUGH, NORTH CAROLINA
AND
W. K. D1C!.(SON & CO., INC.
WATER TREATMENT PLANT UPGRADE
Amendment No.5 modifies the Contract for Services between the Town of Hillsborough,
North Carolina and W. K. Dickson & Co., Inc. dated June 15, 1999 for professional
engineering services related to the upgrade of the Town of Hillsborough Water Treatment
Plant. The purpose of Amendment No.5 is to adjust the compensation to the Engineers to
reflect additional work associated with a change in project scope as described below:
Scope of Services
The Scope of Services has been expanded to reflect additional time required 'to complete
construction of the project by the Contractor, Atlantic Skanska. The Contract completion
date was 11/5/03. The Contractor current .scheduleshows all work of the Contract is
scheduled to be finished by 4/30/04. The Town is withholding payments from the
Contractor for liquidated damages until all work is completed. The scope of services for
amendment No. 5 includes engineering services for Contract Administration and
Construction Observation for the period through 4/30/04.
Attachment B - Basis of Compensation
Paragraph 1 - Basic Services: The fee the OWNER shall pay the CONSULTANT for services
set forth in Attachment A, Scope of Services shall be increased and/or changed as follows:
Additional Services:
Construction Administration:
Construction Observation:
$16,000 (Not-to-Exceed)
$54,625 (Not-to-Exceed)
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. AMENDMENT NO.5
IN WITNESS WHEREOF I the parties hereto have caused this amendment to be executed.
CONSULTANT:
:KrJ~__
G. Tim Lowder, P.E.
Vice President
Attest, ~
M. l. Wolfe
Project Manager
OWNER:
TOWN OF HlllSBOROUGH
NORTH CAROLINA
BY:
Attest:
Kenneth P. Keel, PE
Town Engineer
Eric J. Peterson
T own Manager
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Date:
This instrument has been preaudited in the manner required by the Local Government
Budget and Fiscal Control Act.
BY:
Sherry Carter, Finance Director
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TOWN OF HILLSBOROUGH BOARD OF COMMISSIONERS
RESOLUTION GRANTING A SPECIAL USE PERMIT SUBJECT TO
SPECIAL CONDITIONS AFFECTING 4.98 ACRES OF LAND IDENTIFIED AS PART
OF 4.38.D.26 AND PIN 9864-71-2530
WHEREAS, the Town of Hillsborough Board of Commissioners has received an
application from Carillon Assisted Living for a Special Use Permit to allow the development of
4.98 acres of land located on the north side of Orange Grove Road, being a portion of the parcel
4.38.B.26 and PIN 9864-71-2530; and
WHEREAS, the Town of HilIsborough Planning Board and the Board of Commissioners
conducted a joint public hearing to consider the application on February 3, 2004 after giving
notice thereof as required by law; and
WHEREAS, at the aforesaid public hearing, the Applicant and all others wishing to be
heard in connection with the Application were given an opportunity to do so; and
WHEREAS, the Town of Hillsborough Planning Board has made it's recommendation to
the Town of Hillsborough Board of Commissioners regarding the Application;
WHEREAS, the Town of Hillsborough Board of Commissioners has considered the
recommendation of the Planning Board and all the information and testimony presented to it at
the public hearing.
NOW, THEREFORE, BE IT RESOLVED by the Town of Hillsborough Board of
Commissioners, on motion of Commissioner Gering , seconded by Commissioner
Hallman, this 9th day of February, 2004 as follows;
I. The Board of Commissioners has considered all the information presented to it
both in support of and in opposition to the application at the February 3,2004 public hearing;
2. The Board of Commissioners finds in accordance with Zoning Ordinance Section
4.39.1 that the requested permit is within its jurisdiction according to the Table of Permissible
Uses, that the application is complete, and that if the proposed development is completed as
proposed in the application, subject to the Special Conditions attached hereto, it will comply with
the requirements of the Zoning Ordinance.
3. The Special Conditions attached to the Special Use Permit as Exhibit I are
intended to preserve and/or promote the health, safety and welfare of the surrounding areas and
the Town of Hillsborough in general, and to insure that the Performance Standards established
by Section 4.48 of the Zoning Ordinance are met.
4. Upon adoption of this Resolution, the Town of Hillsborough shall issue a Special
Use Permit generally in the form annexed hereto as Exhibit A and notice of this decision and
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issuance of the special use permit shall be transmitted forthwith in accordance with Section
4.41.10 of the Zoning Ordinance.
The foregoing Resolution was put to a vote of the Town of Hills borough Board of
Commissioners, the results of which vote are as follows:
Ayes: 5
Noes: 0
Absent or Excused: 0
Dated: Il~ -/& .--tJ;j
,L~~~
(Donna F. Armbrister, Town Clerk
4.7
Exhibit 1
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1.
Stormwater control plans for the site must be reviewed and approved by
the Town before permits are issued.
2.
Water and sewer extension plans and agreements (if necessary) must be
reviewed and approved by the Town before permits are issued.
3.
The owner will construct a sidewalk along Orange Grove Road of the
same material and to the same standards within twelve months of
receiving notice that a sidewalk is or will be constructed to the site by
NCDOT or the Town.
4.
The Town understands that the Division of Facilities Services may require
minor changes at the time of licensure.
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AN ORDINANCE AMENDING THE ZONING ORDINANCE
OF THE TOWN OF HILLSBOROUGH
TO CREATE THE LIGHT INDUSTRIAL DISTRICT
THE BOARD OF COMMISSIONERS OF THE TOWN OF HILLSBOROUGH ORDAINS:
Section 1.
Add a new Section 2.13 to the Zoning Ordinance of the Town of Hillsborough as follows and
renumber the subsequent subsections in Section 2 of the Zoning Ordinance, starting with the
current subsection 2.13 - Economic Development District, to reflect the addition of the new
Section 2.13:
2.13 Light Industrial
a) Intent
The purpose of the LI District it to provide locations for enterprises engaged in assembling of goods, merchandise or equipment
and industrial services.
b) Application Criteria
This district will generally be applied where the following conditions exist:
1. Adjacent land is zoned GI, LI, AR, or HIC
2. Water and sewer lines exist at the site or are to be made available as a part of the development process.
3. Direct vehicular access is to a public street with immediate and convenient access to a street classified as an
arterial. Immediate and convenient shall in this case mean traffic would not travel through or adjacent to an existing
residential neighborhood to get from the site to the arterial road.
Section 2. Amend Section 3.4.1, Permitted Use table to reflect the following as permitted and
. Conditional Uses in the Light industrial District as noted:
Accessory Use Parks, Athletic
Appliance/trade Sales & Service Parks, Community
Assembly and distribution of goods wholly within an Parks, Cultural
enclosed building which requires no air pennit or special Parks, Natural
industrial user (pre-treatment) permit Printing & Lithography
Building supplies, wholesale Research facility
Church Sales and rental of heavy equipment
Combination Use School, dance, art, music
Contractor's office and storage yard School, vocational
Day Care Storage/Warehousing, inside an enclosed building and
Flex Space excluding hazardous materials
Government Facilities and Buildings Telecommunication Towers (Less than 200' tall-CO2, 200'
Government Protective Services tall or taller - CUI)
GreenhouselNursery Transit passenger terminal
Light Industry Water and Sanitary Sewage Pump Stations
Mail order houses Wholesale Sales
Outside storage as an accessory use Woodworking or cabinetmaking
Section 3. Amend Section 3.5.1, Dimensional Requirements, to create standards for the Light Industrial
District as follows:
Min Lot area: 40,000 sf
Min Lot width: 100'
Side Yard Setbacks: 50' except when adjacent to HIC (30') or GI (zero) or LI (zero)
. Rear Yard Setback: 50' except when adjacent to HIC (30') or GI (zero) or LI (zero)
Front Yard setback: 35'
Max building height: 65'
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Section 4. Amend Section 5.16.b, Noise, as follows:
. "Measurements shall be taken at the lot line ofthe offending use."
Section 5.
Amend Section 5.16.c, Table A to include LI in the column heading including mc and GI.
Section 6.
Amend Section 5.19.a; 5.27.2.b; 6.3; 8.11.c; and 8.12.d to include LI as a district affected by
the section.
Section 7.
Section 25 is amended to add the follows definitions:
Flex Space Building designed and marketed as suitable for offices but with space available that is able to accommodate bulk
storage, showroom (including retail sales as an accessory, but not predominant use), manufacturing, assembly, or similar
operations. Generally flex space has storefront type windows in the office area of the space.
Light Industry The manufacture, service, repair or testing of products taking place in a totally enclosed building. There is no
outside storage. Noise, odor, glare, or emissions from the industrial activity are not detectable off the property.
Mail order houses Enterprise involved in receiving, processing, packaging, and shipping orders for retail goods to either
individuals or businesses. No more than 20 percent of the gross floor area of the building can be used for retail sales to walk-in
customers.
Section 8.
Section 9.
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 9th day of February, 2004.
Ayes: 5
Noes: 0
Absent or Excused: 0
~/~~4Lf-v
onna F. Armbnster, Town Clerk
.
50
.
AN ORDINANCE AMENDING THE ZONING ORDINANCE
OF THE TOWN OF HILLS BOROUGH
TO AMEND THE GENERAL INDUSTRIAL DISTRlCT
THE BOARD OF COMMISSIONERS OF THE TOWN OF HILLSBOROUGH ORDAINS:
Section 1. Amend Section 2.12 of the Zoning Ordinance of the Town of Hills borough as follows:
2.12 General Industrial District
a) Intent
The purpose of the GI District it to provide locations for enterprises engaged in manufacturing, creating, repairing, renovating,
painting, cleaning, and assembling of goods, merchandise or equipment.
b) Application Criteria
This district will generally be applied where the following conditions exist:
1. Adjacent land is zoned GI, LI, AR, or HIC
2. Water and sewer lines exist at the site or are to be made available as a part of the development process.
3. Direct vehicular access is to a public street with immediate and convenient access to a street classified as an
arterial. Immediate and convenient shall in this case mean traffic would not travel through or adjacent to an
existing residential neighborhood to get from the site to the arterial road.
4. Rail access is desirable, but not required.
Section 2. Amend Section 3.4.1, Permitted Use table to reflect the following as permitted and
Conditional Uses in the Light industrial District as noted. Any item not listed is prohibited:
Accessory Use _ Outside storage
Assembly and distribution of goods wholly within an Printing & Lithography
. enclosed building which requires no air permit or special Public Utility Stations & Substations. Telephone exchanges.
industrial user (pre-treatment) permit public water & Sewage Treatment Plants, Elevated Water
Assembly and distribution of goods wholly within an Storage Tanks (CUI)
enclosed building which requires an air permit and/or Research facility
special industrial user (pre-treatment) permit (SUP) Sales and rental of heavy equipment
Building supplies, wholesale School, vocational
Bus Passenger Shelter Storage/distribution of petroleum products (SUP)
Combination Use StoragefWarehousing, inside an enclosed building and
Contractor's office and storage yard excluding hazardous materials
Dry cleaning or laundry plant (SUP) Telecommunication Towers (Less than 200' tall-CU2. 200'
Extraction of Earth Products (SUP) tall or taller - CU 1)
Flex Space Transit passenger terminal
Freight Handling Terminal (SUP) Transmission Lines (SUP)
Government Facilities and Buildings Transit vehicle or heavy vehicle garage/repair(SUP)
Government Protective Services Vehicle Restoration (SUP)
Greenhouse/Nursery Water & Sanitary Sewage Pump Stations
Junkyard (SUP) Wholesale Sales
Kennel (SUP) Wood or lumber processing (SUP)
Light Industry Woodworking or cabinetmaking
Mail order houses
Section 3. Amend Section 3.5.1, Dimensional Requirements, to add setback standards for General
Industrial District as follows:
Side Yard Setbacks: 0 when adjacent to LI
. Rear Yard Setback: 0 when adjacent to LI
'-'
51
. Section 4.
.
.
Add section 4.48.m to create Special Use Permit standards as follows:
4.48.m
I.
Industrial Special Use (in the GI district)
Any use requiring a state air permit and/or local Significant Industrial User Pretreatment certificate shall provide
documentation of having secured the permit at the time of application.
A verage daily traffic and the percentage mix of heavy truck traffic to the site shall be submitted.
Anticipated noise levels at property lines based on similarly situated uses in other locations. Movable equipment on site
must be included in the calculation.
Outside storage of materials and equipment is permitted if it meets the standards of Section 5.26
The distance to the nearest occupied dwelling unit and residentially zoned parcel shall be submitted.
Uses with excessive traffic, noise, dust, or other impacts must be located 1000 feet from a dwelling or location where
people or children congregate.
2.
3.
4.
5.
6.
Section 5. Add Section 5.26 as follows and renumber the remainder of the section accordingly:
5.26 Outside storage in industrial districts
a. Storage includes: display of equipment/vehicles for sale or rent, long-term parking of vehicles or equipment
used off-site, and stockpiles of raw materials and supplies.
b. Storage areas shall be located wholly behind buildings or screened from adjacent property and roadway view
with a solid screen at least 6' in height.
c. Solid screens may be fences and or vegetation. Fences must be opaque and vegetation must be kept in healthy
condition.
d. No item defmed by this ordinance or the Town Code as "solid waste" may be stored on a site.
e. No hazardous materials may be stored unless specifically authorized by the State Fire Code and inherently
involved with the principle use on the site.
f. All outside storage areas shall be clearly indicated on submitted site plans and storage must be confmed to
designated areas.
Section 6.
Section 7.
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 9th day of February, 2004.
Ayes: 5
Noes: 0
Absent or Excused: 0
~~;:d:u
.
.
.
52
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 the
24.07 acres known as Gold Park (TMBL 4.38.B.34) from General Industrial to
Agricultural Residential.
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 9th day of February, 2004.
Ayes: ~
Noes: 0
Absent or Excused: 0
~~~~
.
.
.
53
AN ORDINANCE AMENDING THE ZONING MAP
OF THE TOWN OF HILLSBOROUGH
TO APPLY THE LIGHT INDUTRIAL DISTRICT
THE BOARD OF COMMISSIONERS OF THE TOWN OF HILLSBOROUGH ORDAINS:
Section 1.
Section 2.
Section 3.
The Zoning Map of the Town of Hillsborough is hereby amended to rezone the
following parcels from General Industrial to Light Industrial:
TMBL PIN General Location
4.37.C.lld 9874-54-2929 ES Elizabeth Brady Rd beside Carrot Top Ind.
4.38.B.IOb 9864-43-7750 SS Dimmocks Mill Rd between Kaye I
Products & Carolina Gym Supply
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 9th day of February, 2004.
Ayes: ~
Noes: 0
Absent or Excused: 0
~~a~
Donna F. Armbrister, Town Clerk
.
.
.
54
Amendment No.1 to Agreement Between Hillsborough and
Durham
Establishing Conditions for the Purchase of Water
This Amendment to Agreement is made and entered into as of the _ day of ,
2004, by and between the CITY OF DURHAM, North Carolina, and the Town of
HiIIsborough (hereafter "Hillsborough"), both North Carolina municipal
corporations.
The agreement between the parties entitled "Agreement Between HiIIsborough and
Durham Establishing Conditions for the Purchase of Water", dated September 17,1998,
is hereby amended by extending the term of such agreement as follows:
Section 1. Term. shall be replaced with the following:
1. Term. The duration of this agreement shall be from July 1, 2003
through June 30, 2008. The term of this agreement may be extended
beyond June 30, 2008 upon the written agreement of both parties.
ATTEST:
TOWN OF HIllSBOROUGH
. Town Clerk
, Town Manager
ArrEST:
CITY OF DURHAM
City Clerk
City Manager
.
.
.
55
STATE OF NORTH CAROLINA COUNTY OF
I, ' a notary public in and for the aforesaid county
and state, certify that , Town Manager of the TOWN OF
HILLSBOROUGH, personally appeared before me this day and acknowledged,
by authority duly given, the execution of the foregoing contract with the City of
Durham. This the _ day of , 20_.
My commission expires:
Notary Public
STATE OF NORTH CAROLINA COUNTY OF
I, a notary public in and for said county and state, certify
that personally appeared before me this day, and
acknowledged that she is City Clerk of the CITY OF
DURHAM, a municipal corporation, and that by authority duly given and as the
act of the City, the foregoing contract was signed in its corporate name by its
City Manager, sealed with its corporate seal, and attested by herself as its said
City Clerk or Deputy City Clerk. This the_ day of J 20_0
-.-.-""
My commission expires:
Notary Public
.
.
.
This instrument has been preaudited in the manner required by the Local
Government Budget and Fiscal Control Act.
This the _ day of
,20_.
TOWN OF HILLSBOROUGH FINANCE
OFFICER
This instrument has been preaudited in the manner required by the Local
Government Budget and Fiscal Control Act.
This the _ day of
,20_"
CITY OF DURHAM FINANCE
OFFICER
56
.
.
..
57
Agreement Between Hillsborough and Durham
Establishing Conditions for the Purchase of Water
This is an agreement between two parties -- the City of Durham (hereafter "Durham")
and the Town of Hillsborough (hereafter "Hillsborough"), both North Carolina municipal
corporations.
1. Statutory Authority and Purpose. This agreement is made pursuant to Article 20,
Part 1 of N.C.G.S. S160A of the North Carolina General Statutes. The purpose of this
agreement is to establish, for each municipality, the terms and conditions for the sale
and/or purchase of treated water (hereafter "water") by either municipality and for the
conveyance of such treated water by either party as an intermediary or by a third party
to either of the parties to this agreement.
2. Term. The duration of this agreement shall be from July 1, 1998 until June 30,
2003. The term of this agreement may be extended beyond June 3D, 200,3 if Durham
determines that water can be made available for sale beyond that date.
3. Definitions. As used in this agreement, the terms below shall be defined as
follows:
a. The "seller" -- the provider of water supplied from the treatment facilities of
the provider;
b. The "buyer" -- the recipient of water "from the seller through a direct
interconnection with the seller who then retains the water for its own use:
c. The "intermediary" -- the recipient of water from the seller through a direct
interconnection with the seller who then passes the water through to a user.
d. The "end user" -- the recipient of water throtlgh an intermediary where the
water is originally provided by the seller to the intermediary for conveyance to the
end user.
The above terms, as sometimes supplemented by the term "party" as in "party seller" or
"party as seller" describe the different capacities in which the parties to this agreement
may act. However, these terms may also be used to describe the status of nonparties
to this agreement where the context makes it clear that such is intended. The parties to
this agreement may act in more than one capacity -- for example, a party may act as
both a "buyer" and an "intermediary" if it receives water from the seller both for its own
use and to pass through to a third party end user.
4. General Conditions for Sale/Purchase/Pass Through of Water. Either party as
seller may deliver water to the other party as a buyer or as an intermediary and the
.
.
.
58
ather party shall pay for the water delivered. Where such water is being delivered to
the party as an intermediary, the intermediary is obligated to pass on to. the end user an
amount that closely approximates the amount designated by the seller for pass through
to th~ end user if the seller has designated an amaunt. Either party is also obligated,
subject to the negatiation of necessary independent agreements. to deliver water to a
third party intermediary designated by the other party" for conveyance to the other party
as end user. In tbis event, independent agreements that must confarm to certain
provisions in this agreement will gavern payment from the third party intermediary to the
party seller for water delivered, and payment from the party end user to. the third party
intermediary fo.r water passed through. Either party is also. o.bligated, subject to. the
nego.tiatio.n of necessary independent agreements, to. convey water as an intermediary
to the other party as end user from a third party seller designated by the other party. In
this event, the intermediary party will receive payment from the party end user pursuant
to this agreement, and will pay the third party seller pursuant to. an independent
agreement with such party. v '
.---....
The quantity of water the party seller shall furnish far the benefit of the other party as
either buyer or end user shall be the Daily Amount and the Guaranteed Annual
Purchase, if such provisio.ns exist in this agreement. In addition the party seller shall
furnish to the ather party such amaunts as are specified to be delivered to the other
party as intermediary pursuant to. sectian 5 below. The seller shall use its best effarts to
deliver the Daily Amaunt. Guaranteed Annual Purchase, and additianal amounts.
Hawever, the seller's legal obligatian to. deliver these amounts is subject to. the limitation
on remedies prescribed in this agreement. The seller may vary the water to. be
delivered from the amounts specified in this agreement in response to requests made
by the designated representative, as defined below, in accordance with this agreement.
In the absence of a Guaranteed Annual Purchase, the seller shall have tatal discretion
to determine the quantity of water it delivers.
.--/'
Durham and Hillsborough shall each designate,in writing a person ar persans to
administer requests for water under this agreement (the "designated representative").
Once designated, such perso.n(s) may make and receive requests orally.
5. Canveyance of Water by a Party or Third Party Intermediary. The provisions of
this section #5 shall apply when either party acts as an intermediary in furnishing water
to a party or a third party end user or when a party as end user requests that all or a
portian of its water be delivered to a third party intermediary for further transfer to. such
party as end. user. This agreement co.ntemplates, among other things, that when a
seller delivers water to an intermediary far pass-through to an end user, the
intermediary shall pay the seller, and the end user shall pay the intermediary.
a) Obligation to Pass Through/Amount. On the condition that appropriate contracts
with third parties are in place, a party intermediary will convey water through its
system to. a party end user when such water is being supplied by a third party seller. -
. and will convey waters~pplied by a party seHer to a third party end user.. The party
intermediary is only obUgated to pass through water where the quality of the water is
,~,
2
.
.
.
satisfactory, the conveyance does not negatively impact the intermediary's service
to its customers and the end user is in compliance with the terms of its contract with
the party intermediary, including payment. The party intermediary will use its best
efforts to pass through the amount the seller has designated as intended for delivery
to an end user.
59
b) Rates for Water Delivered by Party Seller to Party Intermediary. When a p~rty seller
delivers water to a party intermediary, the intermediary will pay the seller at the rates
established in this agreement for all water delivered to it, whether it is retaining the
water as a buyer for its own use or passing the water through to third party end
users. If the seller designates amounts for delivery to one or more end-users, then
the rates shall be calculated based on the separate amounts intended for each
ultimate recipient, as if each recipient were receiving water directly from the seller.
The seller shall allocate the total amount it has delivered to the intermediary for the
month amongst the ultimate recipients and the intermediary shall pay the seller the
charges based on such allocated amounts. Accordingly, the charges will include,
among other things, a Minimum Monthly Payment for each recipient subject to such
a charge if that recipient has not requested the Minimum Monthly Purchase for a
given month.
c) Rates Charged by Party Intermediary to Third Party or Party End User. When a
party seller furnishes water to a party intermediary for pass through to a third party
end user, the party intermediary will charge the end user no more than the rates
established in this agreement, plus the intermediary's additional costs of passing
through the water. Any amount the intermediary conveys to the end user in excess
of the amount furnished by the seller for pass-through to the end user may be billed
in accordance with rates agreed to by the end user and the intermediary. All costs
associated with the pass through of water, including but not limited to extra
pumping, valve operation. flushing, treatment costs, and administrative and other
costs, shall be paid to the intermediary by the end user pu'rsuant to agreement
between the intermediary and such end user. When a third party seller furnishes
water to a party intermediary for conveyance to a party end user, the party
intermediary may only charge the party end user the seller's charge for such water
and the additional costs associated with passing through such water as described
above. Such charges and the payment for such charges may be agreed to without
formal modification of this agreement through written assent by the City or Town
Manager of the parties to this agreement.
d) Use of Third Party Intermediary. When the parties use a third party intermediary for
the pass-through of water, each party shall designate the identity of that
intermediarY as provided below and shall have independent agreements with such
intermediary prior to the party seller's delivery to the intermediary of any water
intended for the party end user. Both parties shall have the right to review the
agreement between the other party and their designated intermediary at any time.
When the end userwc:mts the seller to supply water, the end user shall notify the
appropriate officials of both the seller and the designated intermediary who shall
3
.
.
.
60
then coordinate the pass through of the water. The agreement between the seller
and the intermediary shall require, among other things, that such intennediary is
subject to the obligations of a party intermediary as set forth in this section (5). The
agreement between the end user and the intermediary shall require, among other
things, that the end user will promptly pay the intermediary charges billed by the
intermediary for water furnished by the seller and conveyed by the intermediary to
the end user, and that. the charges for such water are the rates established in this
agreement plus pass-through costs.
e) Designation of Intermediary and Amounts to be Delivered to Such Intermediary.
This section applies where it is anticipated that either party shall be designated by
the other party as an intermediary to convey water from the other party as seller or
to the other party as end user, or where either party will use a third party
intermediary to pass through water furnished by the other party as seller. The
designations in this subsection may be made in the first instance, or changed, by
written notice from the City or Town Manager of the party making the designation to
the other party without formal modification of this Agreement. The amount of water
to be delivered to the intermediary may be changed by notice from the requesting
party's designated representative to the receiving party's designated representative.
Changes as to amount that are anticipated to be in effect for more than 30 days
must be made in writing.
Designation by one party of the other party as an intermediary obligates the
intermediary party to pay the party seller under the provisions of this agreement, or if
the seller is a third party, to negotiate an independent contract with such third party
seller in which the designated intermediary will pay such seller for water provided.
Designation by one party of a thied party as intermediary obligates the party seller,
within the limitations of this agreement, to negotiate an independent agreement with
such third party for payment for water delivered to such third party.
Hillsborough designations:
Hillsborough does not currently designate Durham to serve as an intermediary.
4
.
.
.
Durham designations
Durham designates HilIsborough to serve as an intermediary for water it is
furnishing to Orange-Alamance Water System, Inc. as end user. Durham specifies
that the amount to be delivered to Hillsborough as intermediary is variable.
61
f) Allocation of Water Received by Party Acting as Both Buyer and Intermediary. _
Where water is received by a party to this contract as both buyer and intermediary,
such water may be allocated as set forth in this subsection. Such allocations may
be changed upon notification from the seller's designated representative to the
buyerlintermediary's designated representative, and as confirmed in billing from the
seller. If the allocations are anticipated to change for more than 30 days, such
notice shall be in writing. ALLOCATIONS - NOT APPLICABLE.
6) Water Conservation. During any time that the customers of the seller are under
water use restrictions and water is being supplied to a party as buyer or end user, the
party buyer or end user agrees to impose restrictions at least equal to those imposed
by the seller.
7) Water Charges. The charge, exclusive of pass-through costs, for water furnished by
a party as seller to the other party as either buyer or intermediary or both, is as set forth
in this paragraph. The charge shall be 1.2 times the prevailing Durham inside water
rate (that rate charged to customers of the City system residing within the City limits) for
any amount purchased up to 120% of the Guaranteed Annual Purchase. The charge for
any amount purchased in excess of 120% of the Guaranteed Annual Purchase, or in
the event there is no Guaranteed Annual Purchase, shall be 1.45 times the prevailing
Durham inside water rate. No capital facility fees, availability fees, or other fees and
charges shall be applicable. If a Guaranteed Annual Purchase has been established,
throughout the duration of this contract, a Minimum Monthly Payment shall be made by
the buyer (where the buyer receives water directly from the seller for its own use) or by
the intermediary (where the intermediary receives water from the seller to pass through
to a user) which shall be calculated on the basis of a Minimum Monthly Purchase that is
calculated as follows:
Minimum Monthly Purchase = 1/12 (80% x Guaranteed Annual Purchase)
This Minimum Monthly Payment shall be made even where the buyer or intermediary
has chosen to terminate this contract. If the amount of water reque~ted by the buyer
and delivered to the buyer or requested by the party end user and delivered to an
intermediary in any month is less than the Minimum Monthly Purchase, the Minimum
Monthly Purchase shall be deemed to be the amount of water delivered and, when paid
for, shall be counted as part of the total amount of the Guaranteed Annual Purchase
delivered as of that point in time. For the first and last month of this agreement, the
Minimum Monthly Purchase shall be prorated based on the portion of the month that
the agreement is in effect..
5
.
.
.
62
8) Guaranteed Annual Purchase. Hillsborough agrees that, throughout the duration of
this contract, Durham shall deliver to Hillsborough as a buyer a yearly quantity of water
known as the Guaranteed Annual Purchase. The Guaranteed Annual Purchase
amount shall be the Daily Amount multiplied by 365 days. The Daily Amount shall be as
follows:
From date of this agreement until June 30, 2003 - uncommitted
The Guaranteed Annual Purchase may be increased subject to a determination by
Durham that such increase is available for sale to Hillsborough. Any such increase shall
not be effective unless provided for by a formal amendment to this agreement. It is
further understood that Durham is not expected to furnish water during any 24 hour
period at a rate in excess of the Daily Amount divided by 1440.
The Guaranteed Annual Purchase which Durham agrees shall be delivered by
Hillsborough shall be zero.
9) Determination of Amount Delivered. The amount of water a party as seller delivers
to a party buyer for which the buyer shall pay the seller shall be measured by the
seller's meter located at or near the interconnection point between the seller and
buyer's systems. The amount of water a party as seller delivers to a party intermediary
for which the intermediary shall pay the seller shall be measured by the seller's meter
located at or near the interconnection point between the seller and intermediary's
systems. The seller's meter shall be read periodically by the seller and these meter.",.
readings shall be conclusive. When a party receives water as an end user through a
designated third party intermediary the amount of water delivered shall be as
determined by independent agreement between the party user and the third party
intermediary .
1 0) Nondelivery of Reauested Water. (Applicable when there is a Guaranteed Annual
Purchase.) It is understood that the seller may reduce or suspend the delivery of water
to the buyer or to the designated intermediary in the event of emergencies, water
shortages, equipment problems, or other events or conditions that reduce the amount
of water available for sale or the seller's ability to deliver such water. In addition, the
seller may suspend the delivery of water to the buyer in the event that the buyer does
not pay the seller for water delivered directly to the buyer, or may suspend delivery of
water to the designated intermediary in the event that the intermediary does not pay the
seller for water delivered to the intermediary. In the event the seller is unable to provide
the party buyer or party end user with the daily amount, but the party buyer or party end
user has requested such amount, the Guaranteed Annual Purchase may be reduced, at
the discretion of the party buyer or end user, by the amount of the shortfall. If such
reduction is desired, the party buyer or end user must notify the seller within 30 days of
the time the shortfall has ,occurred.
6
.
.
.
63
11 ) BillingfPayment. Each party, when acting as a buyer and/or as an intermediary, will
pay the party seller for water received as a buyer and for water received as an
intermediary in accordance with this agreement and each party when acting as an end
user will pay the designated third party intermediary for water received from the
intermediary in accordance with this agreement. Billing shall occur on a monthly basis.
The seller shall add a late payment fee of one (1 %) percent per month to the amount
due for any payment made more than twenty (20) days after the billing date. The party
seller shall bill the party buyer for water the seller delivers to the buyer. The party seller
shall bill the party intermediary for water the seller delivers to the intermediary for
conveyance to a third party end user, and shall bill the designated third party
intermediary for water the seller delivers to that intermediary for conveyance to a party
end user. The charges to an intermediary shall be in accordance with the provisions of
Paragraph 5 above.
12) Indemnification. The seller shall not be liable to the buyer, to the end user, or to the
intermediary, or to any person, firm, corporation, municipality, or other water consumer
for failure to supply a sufficient quantity or quality of water under this agreement or from
failure to comply with any State or Federal standards relatlng to drinking water.
Notwithstanding the references to third parties in this agreement, the seller shall not be
liable to those parties for any obligations within this agreement and shall not be
obligated to enforce any requirements imposed by this agreement or by any
independent agreement with third parties. A party receiving water as a buyer or as an
end user under this agreement (lithe indemnifying party") shall indemnify 'a party seller
and its officials, agents, and employees from and against all claims, judgments, costs,
damages, fines, penalties, interest, and expenses (including but not limited to attorney's
fees) imposed against such seller that arise from or in connection with the indemnifying
party's receipt or nonreceipt of water pursuant to this agreement.
13)Regulatory Compliance. In the event thatthe seller delivers water directly to a party
as buyer, the party buyer shall be_responsible for securing any necessary Federal or
State approvals and for compliance with any applicable Federal or State regulations
relating to the transfer of water. The party end user shall assume this obligation in the
event that the seller delivers water to a third party intermediary for conveyance to a
party end user.
14)Breach and Remedies for Breach. Substantial breach of the terms of this
agreement by one party is grounds for unilateral termination by the other party,
amongst other remedies, provided that the terminating party has given 90 days' written
notice to the breaching party and the breaching party has not cured the breach during
that period. A party seller's inability to deliver the Guaranteed Annual Purchase or
Minimum Monthly Quantity shall not be considered a breach. However, if the party
seller is unable to deliver the Minimum Monthly Quantity for any four months in an eight
month period. a party buyer or party end user may unilaterally terminate this .
agreement. A party's remedies against a party seller, if the party seller does not deliver
water as provided in this' Agreement, are limited to termination as described herein and
nonpayment for water the seller has not delivered. The failure of a third party
7
.
.
.
64
intermediary to perform as required through independent agreements shall not be
grounds for unilateral termination by either party, except that the seller may terminate
this Agreement or suspend delivery under this Agreement if the third party intermediary
does not make timely payment to the seller for water the seller has delivered to the
intermediary for conveyance to a party end user. Except as limited by specific
language in this paragraph, the enumeration of remedies in this paragraph is not
exclusive
15)Amendment. Where this agreement provides for a Guaranteed Annual Purchase,
then this agreement may be modified or terminated by subsequent written agreement of
both parties. In the absence of a Guaranteed Annual Purchase, the agreement may be
modified by written agreement by both parties and may be terminated upon written
notice by either party.
16)Forum. Any litigation arising out of this Agreement shall be determined in the courts
in the county of the party bringing the suit. A party adjudged by the court to be in breach
of this agreement shall pay the reasonable attorney's fees of the other party related to
enforcing this agreement.
ATTEST:
;;L~
/ . ~/0'k
Donna Armbrister, Town Clerk
ATTEST:
TOWN OF HILLSBOROUGH
&f~ 'fJ;3)rJ
Eric Peterson. Town Manager
CITY OF DU R,HAM
City Clerk o.~ ,(" .
V~~~E%I~"9....:.:,:<.~
<r r'
~ \8.. ..;.:.
1t1." /"
~o. . ~..
~J:'<<..""""''''''''
b[. J.j CJ\~;:t:
-1lf10{J~""
8
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.
.
65
STATE OF NORTH CAROLINA COUNTY OF f)4""
I, I a notary public in and for the aforesaid county and
state, certify that ric Peters . Town Manager of the TOWN OF HILLSBOROUGH,
personally appeared before me this day and acknowledged, by authority duly given. the
execution of the foregoing contract with the City of Durham. This the /3 ~ay of ~J/
I 19!jL.
My commission expires: 1/&/1.002/ Notary Public
STATE OF NORTH CAROLINA COUNTY OF.]:)W ~
I, a notary public in and for said county and state, certify that]). Ann ~~
personally appeared before me this day, and acknowledged that she is ~u
City Clerk of the CITY OF DURHAM, a municipal corporation, and that by authority uly
given and as the act of the City, the foregoing contract was signed in its corporate
name by its - City Manager, sealed with its corporate seal, and attested by
herself as its said City Clerk or Deputy City Clerk. This thefl- day of~t -
19q~ .
My commission expires: 0 l...../l~ 2002 Notary Public
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9
66
This instrument has been preaudited in the manner required by the Local Government
Budget and Fiscal Control Act.
. This the JJ!!day Of*, 19 'Ii
This instrument has been preaudited in the manner required by the Local Government
Budget and Fiscal Control Act.
This the .Iu- day of ,~wf,'l ,19ft
. J
.
.
10