NC0025453_Correspondence_20211123

STATE OF NORTH CAROLINA
COUNTY OF WAKE
SECOND AMENDMENT TO THE CLAYTON/RALEIGH
INTERLOCAL AGREEMENT
The ORIGINAL AGREEMENT was made and entered into on the 27`h day of February, 2007,
by and between the CITY OF RALEIGH, a municipal corporation existing under the Laws of the
State of North Carolina (hereinafter referred to as RALEIGH), and the TOWN OF CLAYTON, a
municipal corporation existing under the Laws of the State of North Carolina (hereinafter
referred to as the TOWN). Amendment #1 to the ORIGINAL AGREEMENT was made and
entered into on the 10 day of Se,tember,2P 15. This AMENDMENT #2 is made and entered
into this the ?,5td day of oymbrr , 2021 by and between RALEIGH and the TOWN
and is hereinafter referred to as the "Amended Agreement" (as defined below).
WITNESSETH:
WHEREAS, RALEIGH is the owner and operator of a wastewater collection system and
the Neuse River Resource Recovery Facility (NRRRF), which has 75 million gallons per day
(MGD) of total permitted treatment capacity, and
WHEREAS, pursuant to Sections 6 and 7 the ORIGINAL Agreement, the TOWN has
reserved and paid $1,800,000 for its original allocation of 500,000 MGD of treatment capacity
from the NRRRF and following the assignment by Johnston County of its 500,000 GPD
allocation to the TOWN (the "Johnston County Allocation"), $1,800,000 for the Johnston
County Allocation;
WHEREAS, the TOWN has reviewed and analyzed different options for their wastewater
treatment system needs and obligations in the TOWN's sanitary sewer collection system, and
WHEREAS, the most cost effective, environmentally sound, and best short-term method
of wastewater collection, treatment and disposal for the TOWN's sewer system is achieved by
supplementing the TOWN's existing wastewater collection and treatment capacity by conveying
a portion of the TOWN's wastewater through use of an existing connection between the
TOWN's existing sewer system and RALEIGH's wastewater collection system for treatment at
RALEIGH's Neuse River Resource Recovery Facility.
WHEREAS, the TOWN is undertaking an expansion of its wastewater treatment capacity
to address it long term needs.

WHEREAS, RALEIGH and the TOWN agree that the TOWN will continue its duties as
established in the ORIGINAL AGREEMENT and receive an additional .75 MGD of sewer
capacity for treatment of sewage, and the parties further agree that the cost for the 1 MGD of
capacity available under the ORIGINAL AGREEMENT will be as set forth in Paragraph 7 of the
ORIGINAL AGREEMENT and the cost for the additional .75 MGD will be as set forth in
Paragraphs 8 and 9 of this Amended AGREEMENT.
NOW, THEREFORE, for and in consideration of the respective rights, powers, duties
and obligations hereinafter set forth to be performed by RALEIGH and the TOWN, the parties
mutually agree as follows:
1. Definitions: As used in this Amended Agreement, the terms listed below mean:
A. "ORIGINAL AGREEMENT" means the original Agreement between
RALEIGH and the TOWN dated February 27, 2007 as amended by
Amendment #1 dated September 14, 2015. By this Second Amendment
also referred to as the "Amended AGREEMENT", the parties have
replaced and modified provisions of the ORIGINAL AGREEMENT as
originally adopted and only those original provisions of the ORIGINAL
AGREEMENT appearing in this Amended AGREEMENT remain in
effect.
B. "Amended AGREEMENT" means this Second Amendment to the
ORIGNIAL AGREEMENT.
C. "CONNECTION" means (i) the sewer force main extension pipeline; (ii)
the flow measurement and metering facility; and (iii) the wastewater
sampling station installed, maintained and operated to effectuate the
purposes of this Inter Local Agreement.
D. "TOWN SEWER SYSTEM" means any portion of the sanitary sewer
collection system owned, maintained and operated by the TOWN which
effectuates the purposes of this Inter Local Agreement.
E. "NEUSE ESTUARY ALLOCATION" means the amount of Total
Nitrogen loading which the Neuse River Resource Recovery Facility is
authorized by its NPDES permit to discharge which reaches the Neuse
Estuary, as established pursuant to 15 NCAC 2B .0713.
F. "NPDES PERMIT" means NPDES Permit NCO029033 issued to
RALEIGH to operate the Neuse River Resource Recovery Facility
pursuant to N.C. Gen. Stat. § 143-215.1 as in effect at the time the permit
is applied as a part of this Amended AGREEMENT.
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2. This Amended AGREEMENT is made pursuant to Article 20, Part 1 of N.C. Gen. Stat.
Chapter 160A. The purpose of this Amended AGREEMENT is to establish, for each unit of
local government, the terms and conditions for the sale and/or purchase of sewerage capacity by
each unit of local government and for the conveyance of such sewerage by each unit of local
government as an intermediary. The TOWN and Johnston County entered into an agreement by
which the County assigned to the TOWN the capacity for sewer treatment available pursuant to
the Interlocal Agreement between RALEIGH and the County of Johnston dated 27 February,
2007, as Amended by the First Amendment to the Johnston County/Raleigh Interlocal
Agreement (the Johnston County Interlocal Agreement), and assigned to the TOWN other
functions and duties otherwise applicable to the County under this AGREEMENT between the
TOWN and RALEIGH within the service area which was the subject of the assignment. See
attached "Exhibit I." The TOWN agrees that its duties and responsibilities under the ORIGINAL
AGREEMENT were altered by the Assignment and that any language contrary to the duties and
responsibilities of the TOWN as otherwise set forth in this Amended AGREEMENT are
controlled by and established as set forth in the Assignment which is attached as Exhibit A to
this Amended AGREEMENT. Should the County of Johnston cancel or withdraw from the
Assignment, or otherwise assume control of all or any part of the capacity provided in the
Johnston County Interlocal Agreement, this Amended AGREEMENT will be adjusted and
applied in light of the changes for which notice is given to RALEIGH by both the TOWN and
the County of Johnston.
3. The TOWN shall be responsible for the operation and maintenance of the TOWN
SEWER SYSTEM.
4. The TOWN has completed the construction of the "CONNECTION" from the TOWN to
RALEIGH's existing wastewater collection system and facilities at the pump station as required
in the ORIGINAL AGREEMENT. The TOWN shall own all such improvements, but RALEIGH
shall be responsible for operation and maintenance of the portion of the CONNECTION which is
in Wake County. The TOWN shall be responsible for operation and maintenance from the point
of connection with the metering facility to Wake Johnston County line. The CONNECTION to
RALEIGH was made and completed in a manner acceptable to RALEIGH. RALEIGH reserves
the right to make future connections to the 16-inch sewer force main within the portion of the
sewer force main RALEIGH is responsible for operating and maintaining within Wake County.
Any future RALEIGH sewer connections to the sewer force main shall not reduce the capacity of
the sewer force main to transmit a combined 1.75 MGD, Peak Flow rate 3,125 Gallons per
Minute (GPM) from Johnston County and Clayton to RALEIGH. In addition to the existing
wastewater transmission system, the TOWN agrees to continue the use of odor control facilities
to dose the wastewater to be conveyed by the TOWN to RALEIGH with RALEIGH approved
odor control chemicals, including Bioxide, prior to discharging any wastewater to RALEIGH.
Until otherwise directed, the TOWN agrees to dose the wastewater with Bioxide at the dosage
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designated by RALEIGH and to use any additional odor control chemicals at the dosage
designated by RALEIGH. The cost of continuously operating the odor control facilities is
entirely the responsibility of the TOWN.
5. Except as otherwise provided in 4., the TOWN shall be responsible for the operation and
maintenance of the CONNECTION. The TOWN agrees that RALEIGH shall have access to the
CONNECTION and the TOWN SEWER SYSTEM along with the authority to engage in any
activity necessary for the performance of its responsibility to operate and maintain the flow
meter and the sampling station.
6. RALEIGH shall accept and treat the wastewater flow from the TOWN at the flowing
rates and volumes listed below: Average Daily Flow: 1,750,000 Gallons per Day (GPD), Peak
Flow Rate: 3,125 GPM so long as the assignment by the County of Johnston to the TOWN
continues and the TOWN complies in all conditions set forth in the Amended AGREEMENT.
Wastewater discharged to RALEIGH shall comply with the quality and constituent limitations as
defined in the RALEIGH Sewer Use Ordinance (SUO) at Raleigh City Code Part 3, Chapter 2,
Article C., including all future amendments and revisions of the SUO.
7. RALEIGH will accept a total sewer flow up to 1,750,000 GPD from the TOWN upon the
approval and execution of this Second Amendment to the ORIGINAL AGREEMENT by the
TOWN unless the applicable NPDES permit issued to the Neuse River Resource Recovery
Facility is revised to reduce the NEUSE ESTUARY ALLOCATION that is available to
RALEIGH or the assignment by the County of Johnston to the TOWN is altered or terminated.
RALEIGH acknowledges that the County of Johnston may utilize 500,000 GPD of the 1,750,000
GPD when the assignment to the TOWN expires or is otherwise revoked, but in no case beyond
the terms, conditions and timeframes identified by this Amended AGREEMENT without further
amendment. If and when the 500,000 GPD of assigned capacity, or any portion thereof, expires
or is revoked, the 1,750,000 GPD allocated to the TOWN under this Amended AGREEMENT
shall be reduced accordingly.
8. The TOWN agrees to pay RALEIGH the monthly bill which is based on
RALEIGH's cost of operation, maintenance, future debt service and overhead on RALEIGH's
collection, pumping and treatment facilities attributable to the amount of total wastewater
delivered by the TOWN's facilities to the Raleigh sewerage collection system and all other sums
due and payable by the TOWN to RALEIGH pursuant to the terms of this Amended
AGREEMENT. A monthly bill sent to the TOWN will be based only upon its reserve treatment
capacity to determine the final monthly bill amount, as shown in the formula in "Exhibit 2"
sample bill. Current contract customer rates and charges are set out in "Exhibit 3" and shall be
subject to periodic revision by RALEIGH. In calculating the customer charges for the TOWN,
RALEIGH included a credit for the capital capacity reserve charge paid by the TOWN in
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accordance with Paragraph 7 of the ORIGINAL AGREEMENT. RALEIGH reviews and revises
such rate structures for contract sewer service on an annual basis and when made, said revised
rate structures shall be made a part of this Amended AGREEMENT and TOWN agrees to pay
RALEIGH based on revised rates adopted by RALEIGH. RALEIGH will perform billing for the
sewer service on a monthly basis. The TOWN agrees to pay for the 1 MGD of capacity acquired
in the ORIGINAL AGREEMENT each month before payment will be due and payable for the
.75 MGD of additional capacity acquired by the Amended AGREEMENT. The first bill will be
calculated and issued within 21 days of the end of the first month. After the initial bill is issued,
all others will continue on a monthly frequency. All bills received by the TOWN for sewer
service are due and payable within 15 days after receipt.
9. The monthly sewer bill submitted by RALEIGH to the TOWN for the TOWN
system shall be based on the following:
(a) Discovery by RALEIGH of violations of discharge limitations as
provided in the RALEIGH SUO, including toxic substances or heavy
metals, by the TOWN shall be reported by RALEIGH to the TOWN
within 24 hours of the analysis identifying such violation. Repeated
violations by the TOWN of the RALEIGH SUO will result in RALEIGH
interrupting or terminating the TOWN's sewer service from RALEIGH.
(b) In the case of the TOWN exceeding either its average or peak flow rate
as stated in Section 4 in any month, the TOWN will pay a double rate for
the entire volume of sewer service for that month. Average flow rate shall
be defined as the total volume of wastewater discharged to RALEIGH
during a month divided by the number of days in the month. Peak flow
rate shall be defined as any rate of flow greater than 3,125 GPM, sustained
for a period of 2.0 hours or longer.
10. The TOWN has a User Charge system, which generates sufficient revenue to
provide for the adequate and proper operation, maintenance, replacement and repair of its
sewerage system, including payment for sewer service rendered to the TOWN by RALEIGH.
Such User Charge system shall be updated as may be necessary to maintain sufficient funding as
required for proper sewer collection system operation, maintenance, repair and replacement, as
defined by the United States Environmental Protection Agency (USEPA) and the North Carolina
Department of Environmental Quality (NCDEQ).
11. The TOWN has a Sewer Use Ordinance (Industrial Pretreatment Program),
which is no less stringent than the Sewer Use Ordinance of RALEIGH. The TOWN's Sewer Use
Ordinance is in compliance with all current NCDEQ rules or USEPA Regulations. Any
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amendments or revision of TOWN's Sewer Use Ordinance shall be subject to review and
approval by RALEIGH prior to adoption by the TOWN. The TOWN shall amend its Sewer Use
Ordinance as required in the future to assure that it is continuously in compliance with
appropriate NCDEQ rules and USEPA regulations, and no less stringent than the Sewer Use
Ordinance of RALEIGH. The TOWN shall allow RALEIGH periodically to review the
administration of the TOWN's Industrial Pretreatment Program, shall provide RALEIGH with
copies of all permits for the Industrial Pretreatment Program for the TOWN, and shall allow
RALEIGH to review and approve any new permits or modifications to existing permits that
discharge to the TOWN's SEWER SYSTEM and to RALEIGH, prior to the TOWN issuing a
final permit. RALEIGH shall review and approve, if compliant with the TOWN and RALEIGH
Sewer Use Ordinances and North Carolina Division of Water Resources pretreatment
regulations, all such new permits and modifications to existing permits within thirty days of the
TOWN's request for approval; if RALEIGH does not take action within thirty days, the
TOWN's request shall automatically be deemed granted. The TOWN will not issue Industrial
Pre-treatment permits to biopharmaceutical manufacturing facilities to discharge wastewater into
the TOWN's SEWER SYSTEM that subsequently will be sent to RALEIGH for treatment,
except during periods of discharge that have been previously authorized in writing by the
Director of Raleigh Water. The TOWN will also ensure that wastewater from biopharmaceutical
manufacturing facilities is not discharged or sent to Raleigh for treatment except during periods
of discharge that have been previously authorized in writing by the Director of Raleigh Water.
The TOWN will be responsible for billing, collecting, and retaining the surcharges from the
appropriate industries. The TOWN will establish and follow its `Enforcement Response Plan."
If necessary, the TOWN will interrupt or terminate the violating industry's water or sewer service
in order to gain sewer use ordinance compliance. If the TOWN fails to terminate the violating
industry's water and sewer service after at least 24 hour written notification to the TOWN and
the industry discharges to RALEIGH as previously described, then RALEIGH will interrupt or
terminate the TOWN's sewer service from RALEIGH, until the TOWN terminates service from
the violating industry or the discharge into RALEIGH's sewer treatment system wastewater from
biopharmaceutical industries. RALEIGH's authority to interrupt or terminate the TOWN's
service pursuant to this paragraph is not limited by or subject to the requirements of Paragraph
16. of this AGREEMENT.
12. (a) Should a sewer overflow occur at the TOWN's connection point or within
RALEIGH'S Neuse River Interceptor Sewer Transmission Main as a result of the
TOWN's or the County of Johnston's discharge of wastewater into RALEIGH's sewerage
collection system, regardless of the cause, the TOWN shall immediately take any and all
necessary remedial action, to eliminate the overflow condition and to mitigate the
environmental harm and other damages resulting from to the overflow condition. Should
a sewer overflow in the opinion of the RALEIGH Public Utilities Director be imminent at
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the TOWN's connection point or within RALEIGH'S Neuse River Interceptor Sewer
Transmission Main as a result of the TOWN's or the County of Johnston's discharge of
wastewater into RALEIGH's sewerage collection system, regardless of the cause, the
TOWN shall immediately take any and all necessary remedial action, to eliminate the
overflow condition and to mitigate the environmental harm and other damages resulting
from to the overflow condition, upon notification by RALEIGH. Furthermore, the
TOWN shall and does hereby assume, and agrees to indemnify and hold harmless
RALEIGH, its successors and assigns, from and against all loss, claims, damages,
penalties, fines, costs, expenses including attorney's fees, damage to property caused by,
or in any way resulting from an overflow event as described above. RALEIGH and the
TOWN each agree to assist in the defense of any cause of actions, whether civil or
administrative, arising from the overflow condition.
(b) The TOWN shall and does hereby assume and agrees to hold harmless
RALEIGH, its successors and assigns, from and against all loss, costs, claims, penalties,
fines, expenses including attorney's fees, and damages caused by or in any way resulting
from a biological upset of the RALEIGH Neuse River Resource Recovery Facility as a
result of the levels of metals or toxic contaminants contained in the wastewater being
discharged by the TOWN or County of Johnston into the collection system of RALEIGH.
The TOWN shall immediately take any and all necessary action to eliminate the
discharge of such contaminants following RALEIGH notification and any additional
actions identified by RALEIGH as necessary to the mitigation of the damage arising from
the discharge to metals or toxic contaminants.
(c) Should a sewer overflow occur, or in the opinion of the TOWN's Public
Utilities Director be imminent, at the TOWN's CONNECTION as a result of the sewer
flowrate in RALEIGH's system, regardless of the cause, RALEIGH shall immediately
take any and all remedial action, within its control and legal authority, necessary to
eliminate the overflow condition following notification from the TOWN and to mitigate
the environmental harm and other damages resulting from to the overflow condition.
Furthermore, RALEIGH shall and does hereby assume and agrees to hold harmless the
TOWN, its successors and assigns, from and against all loss, claims, damages, penalties,
fines, cost, expenses including attorney's fees, damage to property caused by an overflow
event described above. RALEIGH and the TOWN each agree to assist in the defense of
any cause of actions, whether civil or administrative, arising from the overflow condition.
13. The TOWN agrees that any extensions of, or points of connection to its sewerage
system where the sewer is to be discharged to RALEIGH will take place only within the
TOWN's sewer service area and as otherwise authorized by this Amended AGREEMENT.
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14. The term of this Amended AGREEMENT shall be for a period of 20 years from
the date of execution, February 27, 2007 of the ORIGINAL AGREEMENT to February 27,
2027, and shall terminate at the end of the term unless otherwise extended by mutual agreement
between the TOWN and RALEIGH or unless RALEIGH's NEUSE ESTUARY ALLOCATION
for the Neuse Estuary is reduced by NCDEQ in the NRRRF's NPDES permit. If RALEIGH
receives notification from NCDEQ that the NEUSE ESTUARY ALLOCATION for
RALEIGH'S NRRRF is proposed to be reduced in the NPDES permit, RALEIGH will promptly
notify the TOWN, and unless RALEIGH determines in its sole discretion that it can continue to
receive a specified amount of sewerage flow from the TOWN under this Amended
AGREEMENT, this Amended AGREEMENT will terminate on the effective date of the
amendment to the NRRRF'S NPDES permit reducing the NEUSE ESTUARY ALLOCATION
for RALEIGH'S NRRRF.
15. To the extent permitted by North Carolina law, the parties hereto for themselves,
their agents, officials, employees and servants agree not to discriminate in any manner on the
basis of race, color, creed, national origin, sex, age, handicap, or sexual orientation with
reference to the subject matter of this Contract. The parties further agree, to the extent permitted
by law, to conform with the provisions and intent of City of Raleigh Ordinance 1969-889, as
amended. This provision is hereby incorporated into this Contract for the benefit of the City of
Raleigh and its residents, and may be enforced by action for specific performance, injunctive
relief, or other remedy as provided by law. This provision shall be binding on the successors and
assigns of the parties with reference to the subject matter of this Contract.
16. Except as otherwise provided in this Amended AGREEMENT, RALEIGH may
terminate this Amended AGREEMENT and the consent for the TOWN to discharge wastewater
into RALEIGH's sewer collection system upon thirty days prior written notice of the TOWN's
default of any covenant or term hereof, which default is not cured within thirty days after receipt
of such notice of default.
17. RALEIGH hereby represents and warrants that the system of charges and fees set out
in this Amended AGREEMENT are no higher than any other similar agreements to accept
wastewater by and between RALEIGH and any other entity, except as is unique to the TOWN
due to its geographical location and connection to the RALEIGH system.
18. In consideration of RALEIGH'S consent to provide sewer service to the TOWN, the
TOWN agrees to consider mutually benefical future partnerships with RALEIGH in the
development of other agreements for such issues as emergency and permanent water and sewer
system interconnections, water reuse, biosolids reuse, biosolids landfilling and raw water supply
reservoir development, such as on Little River and Middle Creek.
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19. No party may transfer or assign its rights under this AGREEMENT without
written approval from the governing boards of both the TOWN and RALEIGH. This
AGREEMENT shall bind the parties hereto, respective successors permitted assigns and
transferees.
20. All matters relating to this Amended AGREEMENT shall be governed by the
laws of the State of North Carolina, without regard to its choice of law provisions, and venue for
any action relating to this agreement shall be Wake County Civil Superior Court or the United
States District Court for the Eastern District of North Carolina, Western Division.
21. The invalidity or unenforceability of any particular provision of this Amended
AGREEMENT shall not affect the other provisions herein and the Amended AGREEMENT
shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
22. With the exception of the Johnston County Interlocal Agreement, this Amended
AGREEMENT, including the payment of the capacity for the 1 MGD of capacity as set out in
the ORIGINAL AGREEMENT, contains the entire agreement and understanding of the parties
hereto with respect to the subject matter contained herein and all prior agreements or
understandings of the parties hereto are hereby revoked. There are no agreements, restrictions,
promises, warranties, covenants or other undertakings other than those expressly set forth herein
or incorporated herein. The parties further agree that changes in the names of facilities and State
or local agencies will be used in place of the names or designations included herein.
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IN TESTIMONY WHEREOF, RALEIGH and the TOWN have caused this Second Amendment
to be executed below by their respective Managers, their corporate seals affixed and attested by
their respective Clerks, approved by their respective Attorneys, all by the authority of their
respective Councils, as the day and year first written.
ATTE
CITY CLERK
(Attach Municipal Seal)
El
CITY OF RALEIGH
APPROVED: i I
41,
()-4Y ATTORNEYi
This instrument has been pre -audited in the manner
required by the Local Government Budget and
Fiscal ontrol Act.
Chief Financial Officer (or designee)
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ATTEST:
TOWN CLERI
(Attach Municipal Seal)
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APPROVED AS W FORM
T ATTORNEY
This instrument has been pre -audited in the manner
required by the Local Government Budget and
Fiscal Control Act.
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