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AUGUST 16, 1989 Contract - btw Brunswick County and CVB CONTRACF BETVEEN BRUNSWICK COUNTY, VIRGMU AND THE CrrY OF VIRGWU BEACK VIRGWU This Contract is being entered into by Brunswick County, Virginia (hereinafter referred to as Brunswick) and the City of Virginia Beach, Virginia (hereinafter referred to as Virginia Beach) on this 16th day of August, 1989. @REAS, Virginia Beach proposes to construct the Lake Gaston Pipeline project, which will supply raw water to its citizens and certain other residents of Southeastem Virginia (the "Project") as more particularly described in the document dated July 1988 prepared by Virginia Beach entitled "Local Consent Application Summary Document for Brunswick County Lake Gaston Water Supply Project" which sets forth the specifics of the Project related to this contract; and WHEREAS, the intake site for the pipeline and approidmately nineteen (19) miles of the propo@ pipeline will be located within Brunswick; and WHEREAS, Brunswick has previously expressed environmental, economic, and land use concems related to the proposed Project in a variety of forums; and VMEREAS, Brunswick has determined that Virginia Beach's application for approval of the Project pursuant to Virginia Code Section 15.1456 is not in substantial accord @th Brunswick's 1981 Comprehensive Plan, and Virginia Beach has brought an action in the Circuit Court of Brunswick County to set aside that determination; and WHEREAS, Virginia Beach and Brunswick believe it is in their mutual best interest to compromise and settle all disputed matters between them, including litigation and potential litigation, and to avoid continuing and future controversy and attendant delays, legal expenses, and other costs; and WHEREAS, neither Virginia Beach nor Brunswick, by execution of this Contract, admits any liability or wrongdoing. NOW THEREFORF, for and in consideration of the mutual benefits that wifl occur to both BrumMck and Virginia Beach by executing this Contract, as wen as other good and valuable consideration, the parties hereby agree to the following: 1. Virginia Beach and Brunswick agree, each with the other, to the fonowing: a. Virginia Beach and Brunswick agree that the nature and scope of the impacts to Brunswick @iated with thc construction of the slxty inch (60") nominal inside diameter pipeline in Brunswick are generally the same as they are in the other jurisdictions through which pipeline construction wiH occur. Therefore, the parties agree that Virginia Beach shall make a lump sum cash payment to Brunswick of F= THOUSAND DOLLARS ($50,000.00) as compensation for impacts associated with pipeline construction. Virginia Beach affirmatively states that this is the greatest sum which Virginia Beach has agreed to pay to any jurisdiction which has granted loral consent for pipeline construction. b. Virginia Beach and Brunswick agree that the purchase by Virginia Beach of the 5.25 acre waterfront site and the 4.18 acre access road at Pea Hill Creek for the construction of the water intake structure, pump station, and other support structures has removed a potentially valuable piece of property from Brunswick's tax rolls. Iherefore, the parties agree that Virginia Beach shall make a lump sum cash payment to Brunswick of TWO HUNDRED Fl= THOUSAND DOLLARS ($250,000.00) as compensation for the loss of tax revenue resulting from the removal of the intake site from Brunswick's tax rofls c. Brunswick and Virginia Beach disagree as to whether or not the construction of the pump station and withdrawal of water from Pea Hill Creek for municipal 2 purposes will result in any long-term or permanent reduction in existing or future tax revenues derived firom the properties at Pea Hifl Creek, other than the 9.43 acres addressed in paragraph I.b above. Virginia Beach maintains that impacts, ff any, would be minor and temporary. Brunswick maintains that the construction of the pump station and the withdrawal of water for municipal purposes wiu result in the loss of some residential, industrial, or commercial development which would otherwise occur, thereby reducing cxisting or future tax revenues. Without either party conceding the position of the other, and solely for the purpose of compromising and settling these disputed matters and to avoid continuing and future controversy, pending and potential litigation, and attendant delays, legal expenses, and other costs, the parties agree that Virginia Beach shall make a lump sum cash payment to Brunswick of TWO MILLION, SEVEN HUNDRED FIFIY T'HOUSAND DOLLARS ($2,750,000.00) to settle the issue of any potential impact for lost tax revenues from Pea I-lill Creek resulting from the construction of the pump station and withdrawal of water for municipal purposm. d. The total sum from paragraphs l.a, l.b, and l.c above, to be paid to Brunswick by Virginia Beach pursuant to paragraph 2 below, is THREE MILLION, THOUSAND DOLLARS ($3,050,000.00). 2. The cash payment shafl be paid to Brunswick based upon the following schedule: a. At Execution of this Contract $ 350,000.00 b. At the Start of Construction in Brunswick County: 900,000.00 c. At Fifty Percent (50%) Completion of Entire Project: s 900,000.00 3 d. At One Hundred Pcrcent (100%) Completion of the Entire Project: 900,000.00 TOTAL $3,050,000.00 3. All payments made by Virginia Bcach to Brunswick pursuant to this Contract shall be non-refundable, cxcept in the event of a material breach by Brunswick, in which case Virginia Beach shall have the right to pursue all appropriate legal remedies to obtain appropriate refunds and damages associated with said material breach. 4. Virginia Beach will reimburse Brunswick for reasonable costs associated with monitoring and inspection of the Project within Brunswick during construction, within thirty (30) days of receiving appropriately documented invoices. If Brunswick desires to hire someone to monitor and inspect the Project, the fees charged by said person must be agreed to by Virginia Beach prior to said person being hired. 5. Virginia Beach has no desire to usurp Brunswick's local prerogatives within Brunswick's borders. To that end, Virginia Beach agrees as follows: a. Virginia Beach agrees not to unreasonably oppose any discharge permits into Lake Gaston. If Virginia Beach does oppose any such discharge permits, it wfli consent to binding arbitration, at Brunswick's request, to determine whether its opposition is unreasonable. Virginia Beach further agrees that if it plans to oppose any discharge pemiits it wffl give Brunswick as much advance notice as possible, to allow Brunswick to request arbitration, if it elects to do so, prior to or as soon as possible after public announcement of Virginia Beach's opposition. b. In the event that Brunswick requests arbitration pursuant to paragraph 5.a, it will provide with its request for arbitration the name of an arbitrator that it has selected. Virginia Beach shall select a second arbitrator within four (4) days after receipt of Brunswick's 4 request, and the two (2) arbitrators so selected shau mutually designate a third arbitrator (-ho shall preside at all meetings of the arbitrators) within four (4) days after selection of the second arbitrator. All arbitration proceedings pursuant to paragraph 5.a and this paragraph shall be completed within two (2) weeks after designation of the third arbitrator. c. Virginia Beach agees not to seek any special regulations, legislation, or stricter discharge standards for Pea Hill Creek than would apply to other similar waters of the Commonwealth. d. Virginia Beach agees not to interfere with recreational uses of Lake Gaston such as swimming, boating, snorkeling, fishing, or other recreational activities on the Lake nor petition any other agency to seek such restrictions. e. Virginia Beach agrees not to exercise its power of eminent domain under Section 15.1-292 of the Code of Virginia for the purpose of preventing poflution of water and injury to water works or for acquisition of additional property unrelated to the current Project without the consent of Brunswick. Brunswick agrees not to unreasonably withhold such consenl If Brunswick does oppose Virginia Beach's exercise of its power of eminent domain under Section 15.1-292 of the Code of Virginia or related statutes, Brunswick will consent to binding arbitration, at Virginia Beach's request, to determine whether its withholding of consent is unreasonable. Bru@ck further agrees that if it plans to withhold its consent to Virginia Beach's exercise of its power of eminent domain, it will give Virginia Beach as much advance notice as possible, to allow Virginia Beach to request arbitration, if it elects to do so, prior to or as soon as possible after public announcement of Brunswick's opposition to Virginia Beach's exercise of the power of eminent domain. ne procedure set forth in paragraph 5.b above wifl apply to any arbitratioli procedure invoked by this section. However, nothing in this paragraph shall in any way operate 5 or be construed to limit or restrict any of Virginia Beach's powers pursuant to Section 15.1-292 of the Code of Virginia with respect to acquiring any property, easements, or any other right-of-ways necessary to construct, instau, operate, rehabditate, or maintain the Project, including any modifications or changes which niight be necessary as a result of unforseen, unanticipated, or changed conditions or limitations which might arise before, during, or after the construction. 6. Virginia Beach affirmatively states that it has no present plans to seek an increase in the maximum permitted amount of 60 mgd. However, should Virginia Beach, at any time in the future, seek approval for a permit modification from the Corps of Engineers for an increase in the amount of water it may withdraw from Lake Gaston, Virginia Beach agrees to resubmit to the local consent procedure, in Brunswick, under Section 15.1-875 of the Code of Virginia. Upon application to the Corps of Engineers for an increase in the permitted amount of 60 mgd from Lake Gaston, Virginia Beach wiH make a lump sum cash payment to Brunswick in the amount of ONE MILLION, SIX HUNDRED SEVENTY-FIVE T'HOUSAND DOLLARS ($1,675,000.00). Virginia Beach agrees that before it seeks an increase in the 60 mgd perinitted capacity for the Project it wifl conduct a thorough review of all altematives to such action to determine if there are other more acceptable aitematives. Virginia Beach agrees to periodically review new technologies which become commercially available and generally accepted in the water works industry to determine if there are better altematives to the Project 7. Virginia Beach agrees to maintain an active and ongoing conservation program which is at least as comprehensive as the program it has developed and maintained over the last decade. 8. Consistent with and subject to good water utility system practices, Virginia Beach agees not to waste or imprudently use water from Lake Gaston, nor to abandon, seek the 6 abandonment, or interfere with the development of any water suppfies which could be used with or in lieu of Lake Gaston. 9. Virginia Beach agees that representatives of Brunswick may access the pump station site for the purpose of reading the water meters and observing the operation of the Project. Brunswick may read these meters anytime by giving reasonable notice or pursuant to a mutually agreed upon schedule. Virginia Beach also agrees to provide Brunswick with copies of its pumpage reports which wiu be filed with the Corps of Engineers, the State Water Control Board, and Virginia Power. In addition to the pumpage reports, Virginia Beach wifl provide Brunswick with the results of any water quality monitoring and other documents that would be eligible for production under the Virginia Freedom of Information Act 10. Brunswick agrees to give local consent for the Project under Sections 15.1-456 and 15.1-875 within forty-five (45) days after this Contract is ratified by appropriate action of the goveming body of Virginia Beach and executed by the appropriate official(s) of Virginia Beach. Brunswick agrees that it will not attempt to enforce its prior disapproval under Section 15.1-456. 11. Brunswick agrees that it will not unreasonably withhold issuance of local permits required by Virginia Beach or any other entity for the construction and operation of the Project. Brunswick further agrees that it will not unreasonably withhold permission to bufld the Project or any part of the Project under the provisions of any zoning ordinance. 12. Brunswick agrees to make no contribution to the Roanoke River Basin @iation (RRBA) or any other entities for purposes of litigation or any other opposition to the Project Brunswick may maintain membership in RRBA- 13. Brunswick agrees to withdraw from aU litigation in any way relating to the Project and agrees not to oppose the construction or operation of the Project, in any forum or 7 take any affirmative action opposing or preventing construction or operation of the Project. Withdrawal from all litigation shall take place within forty-five (45) days after this Contract is ratified by appropriate action of the goveming body of Virginia Beach and executed by the appropriate official(s) of Virginia Beach. 14. In the event that the Project becomes part of a regional authority, Virginia Beach agr= that all commitments and agreements in this Contract win be preserved. 15. This Contract shall become effective when approved by the goveming bodies of Virginia Beach and BrunswicL This Contract may only be modified or terminated upon the mutual written consent of the goveming bodies of Virginia Beach and Brunswick, provided, however, if construction on the pipefine project does not commence on or before December 31, 1997, the consents and approvals granted by Brunswick for the Project pursuant to Virginia Code Sections 15.1-456 and 15.1-875 shall automatically become nuH and void. Any payments made to Brunswick by Virginia Beach up until December 31, 1997, shau remain the property of Brunswick- 16. Neither party to this Contract shau transfer or assign this Contract or any rights acquired hereunder, nor grant any interest, privilege, or license wha@er in connection with this Contract, without the written consent of the other through its goveming body. However, Virginia Beach may assign or transfer the Project to a regional authority without obtaining Brunswick's consent, so long as aH commitments in this Contract will be preserved and shafl be as binding upon the regional authority as they are upon Virginia Beach. 17. If construction on the Project is not commenced or if the Project is not completed and put into operation, Virginia Beach shall not be liable to make the appropriate payments as outlined in paragraph 2. This paragraph does not alter or modify paragraph 3. 8 18. AJI notices and communications provided for herein shafl be in writing and shafl be either delivered or mailed to Brunswick and Virginia Beach, and if mailed, shall be sent certified mail, retum-receipt requested, postage prcpaid, addressed as follows: a. If to Virginia Beach: City Manager City of Virginia Beach Municipal Center - aty HaU Building Virginia Beach, Virginia 23456 b. If to Brunswick: County Administrator County of Brunswick Post OErice Box 399 Lawrenceville, Virginia 23868 Either party may hereafter designate in writing any other location for its receipt of such notices or communications. 19. Nothing contained in this Contract shall be construed in any manner to abridge, limi4 or deprive either party of any means which it would otherwise have of enforcing any remedy, at law or in equity, for breach of any of the provisions hereof. 20. The validity, interpretation, and performance of this Contract shall be govemed by the laws of the Commonwealth of Virginia. 21. No official of Brunswick or Virginia Beach shall receive any private benefit that may in any way arise firom this Contract. 22. No waiver of breach by either party of any of the provisions of this Contract shall be construed as a waiver of any subsequent breach, whether of the same or of a different provision of this Contract. 9 23. If any part, section, subsection, sentence, clause, or phrase of this Contract is for any reason declared to be unconstitutional or invalid by a court of competent jurisdiction, such decision shaff not affect the validity of the remainder of this CC)ntract. 24. Virginia Bcach and Brunswick hereby represent to each other that thcy have the power to enter into this Contract as evidenced by the attached Ordinance adopted by the aty Council of the City of Virginia Beach on August 16, 1989, and the attached Resolution adopted by the Board of Supervisors of Brunswick County on August 16, 1989. IN S whereof, the parties set their hands this 16th day of August, 1989. CrIY OF VIRG@ BEACIT VIRGWU Manager(/ A=T-. City Cl-erk BRUNSWICK COUNTY, VIRGINIA Chairman, Board of Supervisors ATTEST- AS Cterk to Bbard of Supervisors @TURE u P, 12 i i - o@,, \ -, v., - -s IXPARTMENT APPROVED AS TO LEGAL 10 STAT'E OF VIRGINIA- C= OF VIRG@ BEACH:, to-wit: i, @o,&AvAA - a Notary Pubtic in and for theaty and State aforesaid, do hereby certify that AUBREY V. WATM, JR., City Manager, for the City of Virginia Be,ach, Virginia, whose name as such is signed to the foregoing Contract, has ackn-ledged the same before me in my City and State aforesaid. GIVEN under my hand this 14 7% day 1989. ,- / D"a P@l$ic My Commission Expires: (,/-z - 5: 0 STAT'E OF VIRG@- CITY OF VIRGINIA BEACH:, to-wit: a Notary Public in and for the City and State aforesaid, do hereby certify that RUTH HODGES S@ City aerk, for the City of Virginia Beach, Virginia, whose name as such is signed to the foregoing Contract, has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this d My Commission Expires: 61-.VS STATE OF VIRGINIA- COUNTY OF BRUNSWIC@ to-wit. L C@@ a Notary Public in and for the County and State aforesaid, do hcreby certify that IL PAUL HARRISON, Chairman, Board of Supervisors, for the County of Brunswick, Virginia, whose name as such is signed to the foregoing Contrac4 has acknowledged the same before me in my County and State aforesaid. GIVEN under my hand this t o @ day of 1999. Notary Public My Commission Expires:@@ is STATE OF VIRG@- COUNTY OF BRUNSWICY,, to-wit: 1, a Notary Public in and for the County and State aforesaid, do hereby certify that MARI]LYN IL BRAMMER, Clerk to Board of Supervisors, for the County of Brunswick, Virginia, whose name as such is sigrled to the foregoing Contract, has acknowledged the same before me in my County and State aforesaid. GIVEN under my hand this day of la @k 1989. Not@ry Public My Commission Fxpires: KJC/cb 07/27/89 07/29/89 07/31/89 08/01/89 08/04/89 08/10/89 08/11/89 08/14/89 08/14/89 p.m. 08/15/89 BRUNS.K2 :L2 AT A REGULAR MEETING OF THE BRUNSWICK COUNTY BOARD OF SUPERVISORS, HELD ON THE 16TH DAY OF AUGUST, 1989 RE: CITY OF VIRGINIA BEACH LAKF GASTON WATER SUPPLY PROJECT It was moved by Mr. peebles , seconded by Mr. Rice and duly carried, that the following resolution be adopted: R E S 0 L U T I 0 N: WHEREAS, the City of Virginia Beach proposes to construct the Lake Gaston Pipeline Project, to supply raw water to its citizens and certain other residents of southeastern Virginia (the "Project") as more particularly described in the document dated July 1988 prepared by Virginia Beach entitled "Local Consent Application Summary Document For Brunswick County Lake Gaston Water Supply Project" which sets forth the specifics of the proposed Project; and WHEREAS, the proposed intake site of the pipeline and approximately nineteen (19) miles of the proposed pipeline will be located within Brunswick County; and WHEREAS, Brunswick County has determined that,,Virginia Beach's application for approval of the Project pursuant to Virginia Code SS 15.1-456 is not in substantial accord with the County's 1981 Comprehensive Plan, and Virginia Beach has brought an action in the Circuit Court of Brunswick County to set aside that determination; and WHEREAS, the 1989 Session of the General Assembly of Virginia enacted legislation, effective on February 1, 1990, that 'in effect voids the determination of Brunswick County that the proposed Project is not in substantial accord with the County's 1981 Comprehensive Plan, and Brunswick County has brought an action in the Circuit Court of Brunswick County to challenge the validity of that enactment; and WHEREAS, the pending litigation as well as potential future litigation between Brunswick County and the City of Virginia Beach with regard to the proposed Project is extremely costly and burdensome on the County and the outcome of such litigation, particularly in light of the action of the 1989 Session of the General Assembly, is uncertain; and WHEREAS, representatives of Brunswick County and the City of Virginia Beach have conducted intensive negotiations designed to seek a comprehensive, and fair resolution of the controversy which ensures significant financial compensation to Brunswick County for project impacts, reasonable assurances by the City that the City will not interfere in the internal land use decisions of Brunswick County and reasonable assurances that the City of Virginia Beach will not seek to establish any additional water supply intakes or pipelines in the future beyond that contemplated by the proposed Project; and WHEREAS, the aforesaid negotiations have resulted in the drafting of a contract between Brunswick County and the City of Virginia Beach euibodying the aforesaid principles. NOW, THEREFORE, BE IT RESOLVED, by the Board of Supervisors of Brunswick County, Virginia: 1. That the Board of Supervisors of Brunswick County hereby authorizes the Chairman of the Board of Supervisors to execute the contract negotiated between Brunswick County and the City of Virginia Beach, a copy of which contract is attached to this Resolution and incorporated herein; and 2. That the Board of Supervisors of Brunswick County hereby authorizes and directs its legal counsel to prepare all documents necessary to imple.ment the terms of the agreement contained in the contract between Brunswick County, Virginia, and the City of Virginia Beach, Virginia; and 3. That the Board of Supervisors of Brunswick County authorizes and directs its legal counsel to convey a copy of the foregoing Resolution to the City Attorney for the City of Virginia Beach; and 4. That this Resolution and the incorporated contract shall be made a part of the minutes of this Board. FOR THE BOARD OF SUPERVISORS OF TRUE COPY, TESTE BRUNSWICK COUNTY .9 M. Paul Harrison, (;tiairman, Clerk, Brunswick County Board of Supervisors of Board of Supervisors Brunswick ' County Matilyn Brammer, @cting County Administrator I AN ORDINANCE AUTHORIZING AND DIRECTING THE 2 CITY MANAGER TO EXECUTE A CONTRACT BETWEEN 3 BRUNSWICK COUNTY AND THE CITY OF VIRGINIA BEACH 4 FOR THE PURPOSE OF SETTLING A DISPUTE BETWEEN 5 THOSE TWO JURISDICTIONS CONCERNING THE 6 CONSTRUCTION OF THE LAKE GASTON PROJECT 7 8 9 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA 10 BEACH, VIRGINIA: 11 WHEREAS, Virginia Beach proposes to construct the Lake 12 Gaston Pipeline project (the ',Projectil), which Will supply raw 13 water to its residents and certain other residents of,Southeastern 14 Virginia; 15 WHEREAS, the intake site for the pipeline and 16 approximately nineteen (19) miles of the proposed pipeline will be 17 located within Brunswick County; 18 WHEREAS, Brunswick County has Previously raised 19 enviroranental, economic, and land use concerns related to the 20 Proposed Project in a variety of forums; 21 WHEREAS, Brunswick County has determined that Virginia 22 Beach's apiplication for approval of the Project pursuant to 23 Virginia Code S 15.1-456 is not in substantial accord with 24 Brunswick County's 1981 Comprehensive Plan, and Virginia Beach has 25 filed an action at law in the Circuit Court of Brunswick County to 26 set aside that determination; 27 WHEREAS, Virginia Beach and Brunswick County each believe 28 it is in their best interest to compromise and settle all disputed 29 matters between them, including actual and potential litigation and 30 to end further controversy and attendant delays, legal expenses, 31 and other costs; 32 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 33 OF VIRGINIA BEACH, VIRGINIA: 34 That the City Manager is hereby authorized and directed 35 to execute the contract document entitled "CONTRACT BETWEEN 36 BRUNSWICK COUNTY, VIRGINIA, AND THE CITY OF VIRGINIA BEACH, 37 VIRGINIA, " a true copy of which is attached hereto and marked as 38 Exhibit A. 39 Adopted this 16 day of 1989, by the 40 Council of the City of Virginia Beach, virginia- 41 RMB/dhh 42 8/15/89 43 \ordin\noncode\brunsw.ord 44 45 46 CERTIFIED TO BE A TRUE COPY OF AN ORDINANCE UNANIMOUSLY ADOPTED 11-0 BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA, THIS SIXTEENTH DAY OF AUGUST 1989. City Clerk 2 TO: The Honorable Meyera E. Oberndorf, Mayor FROM: Kevin J. Cosgrove, Interim City Attorney (DATE) The Chair will entertain a motion to recess into an executive (closed) session pursuant to the exemption(s) from open meetings allowed by Section 2.1-344(b) Code of Virginia, as amended, for the following purpose(s): PEPSONNEL MATTERS: Discussion or consideration of or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees pursuant to Section 2.1-344(A)(1). PUBLICLY-HELD PROPERTY: Discussion or consideration of the condition, acquisition, or use of real property for public purpose, or of the disposition of publicly-held property, or of plans for the future of an institution which could affect the value of property owned or desirable for ownership by such institution pursuant to Section 2.1-344(A)(3). PERSONAL f4ATrERS: The protection of the privacy of individuals in personal matters not related to public business pursuant to Section 2.1-344(A)(4). PROSPECTIVE BUSINESS OR INDUSTRY: Discussion concerning a prospective business or industry where no previous announcement has been made of the business' or industry's interest in locating in the community pursuant to Section 2.1-344(A)(5). PUBLIC FUNDS INVESTMENT: The investing of public funds where competition or bargaining is involved, where if made public initially the financial interest of the goverrimental unit would be adversely affected pursuant to Section 2.1- 344(A)(6). LEGAL MATTERS: Consultation with legal counsel or briefings by staff members, consultants, or attorneys pertaining to actual or probable litigation, or other specific legal matters requesting the provision of legal advice by counsel pursuant to Section 2.1-344(A)(7). Specific items of business on the City Council agenda that may be discussed in executive session are the following: Actual or probable litigation or other specific legal matters are the following: 2. 3. TESTS OR EXAMINATIONS: Discussion or consideration of tests or examinations or other documents excluded from this chapter pursuant to Section 2.1-342(8). This Section refers to any tests or examinations used, administered, or prepared by any public body for purposes of evaluation of (i) any student or any student's performance, (ii) any employee or employment seeker's qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by any public body.