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HomeMy Public PortalAbout02-09-2004 Regular Session . . . v 32 Town of Hill~ - -gh 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. . . 33 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. 2 . . . v 34 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. 3 . . 35 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 4 . . . 36 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 5 . . . 37 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 6 38 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. . 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. . 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. 7 . . . 39 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. 8 40 . 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 . 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 9 '... 41 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 . . 10 .~ 42 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. . .. .. .. . "---.-- 43 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) ,~ 44 . 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 . . -.---" Date: This instrument has been preaudited in the manner required by the Local Government Budget and Fiscal Control Act. BY: Sherry Carter, Finance Director . .'- 2 . . . '-..: 45 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 . . . 46 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 . 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. . . 48 . 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' 49 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 . . . 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 r ~~\\\\\nmDll1h/q~ ~~o'\~~.~a~~ ./SS -'.. ..!n ~ g ._ .U. ~ ~ .' OlA h '. ~ ::$ .. \\ IT ~ '. ~ ::::*. r . :::: S : : *== = . ............. . = ~ ~ : ~ ~a"" Ill/SUe ...~ j ~~'.. ....~~ ~,~~;;.. ......~, ~ .~ 'r( coul'l ~~ '!/!/II1/IlIll\ll\\\\\~~ 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