Town of Orleans, MA Intermunicipal Agreement Between the Towns of Orleans, Brewster and Eastham for the Construction, Management and Operation of a Septage Treatment Facility

Whereas the parties have determined that they need facilities for the treatment and disposal of sewage and offal, including septic tank pumpings, the last of which is hereinafter called "septage"; and

Whereas this Agreement has been duly authorized by votes of Town Meetings in Orleans, Brewster and Eastham, respectively, copies of which, designated Exhibits A, B and C, respectively, are annexed hereto and incorporated herein by reference; and,

Whereas Phases I and 11 of the project, which are the feasibility study and the design of the facility, have been completed.

Now therefor, in consideration of the foregoing and of the mutual promises and agreements contained herein, the parties hereto agree as follows.

SECTION 1. The Facility
Orleans, Brewster and Eastham shall jointly finance, construct, equip, maintain, repair and operate for the benefit of the citizens of said towns a facility for the treatment and disposal of septage, more fully described as "Town of Orleans, Massachusetts Septage Treatment Facilities EPA Project Number C250524-03 WPC-MASS.-524-03 LEA Linenthal Eisenberg Anderson, Inc. Engineers/architects/planners Boston, Massachusetts," a copy of which is attached hereto as Exhibit D and incorporated herein by reference.
SECTION II. The Site[1]
Orleans, Brewster and Eastham shall have the right and easement to use that portion of the area bounded as shown on the said plan attached hereto as Exhibit D situated in the Town of Orleans for the construction and operation of said facility in accord with the terms of this agreement.
SECTION III. (Reserved)[2]
SECTION IV. Duties and Responsibilities
	A.	Managers shall locate the facility on the site described in Section I. Managers shall design and prepare the detailed engineering and equipment specifications for the facility.
	B.	No substantial changes may be made in the location, design, layout, engineering or equipment of the facility, either before, during or after its construction, without the approval of the Managers.
	C.	In the first quarter of each fiscal year and at such other times as may be appropriate, the Managers shall review the operation of the facility of each Town's Inspection and Maintenance Program as adopted pursuant to Section VII, Paragraph A herein; and establish the maximum volume of septage to be accepted and processed yearly at the facility; the volume of septage that may be accepted from persons who do not reside in Orleans, Brewster and Eastham; the type of waste that may be accepted, and the schedule of fees to be charged for the use of said facility. [Amended 10-24-1988 STM, Art. 13]
	D.	Managers' approval is required before any rules or regulation governing public use of the facility may take effect.
	E.	Managers may also make such general policy recommendations to the Towns concerning the operation of the facility and of the Inspection and Maintenance Program of each Town as adopted pursuant to Section VII, Paragraph A hereof as it shall deem fit. [Amended 10-24-1988 STM, Art. 13]
	F.	The Managers shall invite proposals, construct, originally equip and furnish said facility in conformance to the plans and specifications. There shall be no expenditure made or bid accepted which is in an amount in excess of Town Meeting appropriation without first obtaining additional Town Meeting appropriations.
	G.	The Managers shall operate, maintain, repair and manage the facility and shall have the care, custody, management and control thereof and of the land more fully described above.
	H.	The Managers shall ensure that complete and accurate books and records pertaining to the operation of said facility are maintained.
	I.	Managers shall prepare or cause to be prepared an annual report of the management and operation of the facility and shall make available such a report in each Town Hall when published.
	J.	Notwithstanding anything contained herein, the Board of Managers shall have the right to transfer ownership to the facility, as described in Section I herein, to the Orleans, Brewster and Eastham Ground Water Protection District upon establishment of same. [Added 10-24-1988 STM, Art. 13]
SECTION V. Advisory Board
There shall be an Advisory Board to the Board of Managers, consisting of nine (9) members, three (3) from each Town, one (1) of whom shall be a member of the Board of Health. Members shall be appointed by each Town's Board of Selectmen. In the first year, one (1) member shall be appointed to a three-year term, one (1) to a two-year term and one (1) to a one-year term; thereafter, appointments shall be for three-year terms.
The Advisory Board shall perform such studies and tasks and prepare such reports as the Board of Managers may from time to time assign to it.
SECTION VI. Apportionment and Payments of Costs
	A.	Classification of costs. In order to apportion between the towns the costs incurred for the construction and operation of the facility, all such costs shall be divided into the following categories:
		1.	Original capital costs. Original capital costs shall include all original expenses in the nature of capital outlay, such as the cost of constructing said facility; the cost of original equipment and furnishings for such facility; the cost of original design and construction plans; engineers' and consultants' fees; the cost of original grading and other costs incidental to placing structures, septage treatment and disposal facilities and the premises related to the foregoing in operating condition. Original capital costs shall also include payment of all principal and all interest on bonds, notes or other obligations issued by Orleans to finance such original capital costs. Capital costs shall be paid by the towns as and when they may be required to be paid by any and all construction contracts entered into by the Board of Managers.
		2.	Subsequent capital costs. Subsequent capital costs shall mean all costs financed by appropriation, whether such appropriation shall be raised by taxation, transfer from available funds, borrowing or otherwise, for reconstructing or adding to such facility or the equipment and furnishing hereof, and for remodeling or making extraordinary repairs thereto. Subsequent capital cost shall also include payment of all principal and interest, if any, on bonds, notes, or other obligations issued to finance such subsequent capital costs. Any such subsequent costs may be incurred only after a vote of Town Meeting in each Town authorizing such appropriation. [Amended 10-24-1988 STM, Art. 13]
		3.	Operating costs. Operating costs shall mean all costs other than capital costs, as defined in Section VI A 1 and 2 above, including any costs incurred for maintenance or repairs.
	B.	Financing. In order to pay the original capital costs required for said facility, as the same are defined above, each town shall issue such notes or other obligations as it may deem best for the period of construction and replace the same with a permanent financing agreement which shall not exceed ten (10) years, unless otherwise by the parties.
	C.	Apportionment and payment of capital costs.
		1.	All original capital costs shall be shared by Orleans, Brewster and Eastham.
		2.	Each town shall timely pay to the Treasurer of Orleans the amount necessary to meet the payment schedule of each, and every payment that must be paid on each contract entered into for the construction of the facility.
	D.	Budget.
		1.	An annual budget for the operation and management of the facility shall be prepared by the facility superintendent and submitted to the Board of Managers by January 1 of each year for the next fiscal year. The Board of Managers shall adopt the annual budget, with such changes as it deems appropriate and necessary, and file a copy of said budget with the Town Clerk of each town.
		2.	For the construction year of the facility, the estimated cost of operations and maintenance set forth in the first construction year budget shall be apportioned equally among the towns. For the first year of operation of the facility, the estimated cost of operations and maintenance set forth in said budget shall be apportioned among the towns based upon actual gallonage data collected by the towns during the construction year by taking the total gallonage figure divided into the total budget figure and the resultant figure then multiplied by the number of gallons per town.
		3.	Each member of the Board of Managers shall be responsible for asking his respective town to provide the funds that shall be necessary to maintain and to continue this agreement and for presenting such requests to his respective Annual Town Meetings each year, together with a report for the need to provide such interim financing for the continued operation and maintenance of the facility as may be needed from time to time.
	E.	The Board of Managers are authorized to appoint a Treasurer/Collector for the Orleans, Brewster and Eastham Ground Water Protection District. The Towns of Orleans, Brewster and Eastham shall pay to the District Treasurer/Collector their shares of the annual operating installments on or before the 10th day of July, October, January and April in each year such payments are required. [Amended 10-23-1989 STM, Art. 6]
	F.	Fees. [Amended 10-24-1988 STM, Art. 13; 10-23-1989 STM, Art. 6]
		1.	The District Treasurer/Collector shall be responsible for directing the billing and collecting of fees for use of the facility. Any fees collected for septage outside the three towns shall be applied to the overall budget of the operation and maintenance of the facility.
	G.	Unilateral termination. In the event that any town shall terminate this agreement without the consent of the other or others, it shall give at least one (1) year's notice before doing so, and it shall, nevertheless, continue to pay its share of the capital costs in accordance with the provisions of this agreement.
SECTION VII. Use of Facility
	A.	Except as may otherwise be provided herein, the facility shall be operated and maintained for the benefit of the citizens of Orleans, Eastham and Brewster. Orleans, Brewster and Eastham shall by action of their respective Boards of Health each adopt, maintain and enforce regulations for on-site Inspection and Maintenance Programs. [Amended 10-24-1988 STM, Art. 13]
	B.	Septage may be accepted at the facility for an appropriate fee from persons who do not reside in Orleans, Eastham or Brewster, to the extent permitted by the Board of Managers.
	C.	In the event that any Town Meeting shall fail to appropriate and fund its prorata share of the operating budget approved by the other Town Meetings or in the event that any town shall fail to pay the moneys due in accord with the provisions of this agreement, such town's right to use the facility shall be reduced in proportion to its shortfall, and the other towns may make up the difference in budgeted operating level by itself or by accepting septage from third communities for a fee as determined by the Board of Managers.
	D.	In the event that demand shall exceed the maximum volume permitted at the facility during the periods that the facility is operated for the towns, each town shall be entitled to use for septage originating within that town its prorata share of such volume based on the previous fiscal year's actual gallonage experience, as well as one-half (1/2) of any portion not used by the other towns.
	E.	Eastham and Brewster agree to allow the use of their landfills for the disposal of compost and/or dewatered sludge from the facility in the event of the temporary inability to dispose of the same at the Orleans landfill site.
SECTION VIII. Protection Against Liability
	A.	For the duration of this agreement, the Board of Managers shall purchase and maintain policies or riders on existing policies of insurance providing for:
		1.	For the duration of this agreement, the Board of Managers shall maintain adequate and appropriate insurance, including, but not limited to the following:
			A.	Property
			B.	Boiler and machinery
			C.	Inland marine
			D.	Worker's compensation and employer's liability
			E.	Automobile
			F.	Broad form comprehensive general liability
			G.	Pollution officials liability
			H.	Public officials liability
			I.	Umbrella liability
			J.	Fidelity and surety with liability insurance to be no less than those currently carried by any one (1) member town.
		2.	All insurance costs shall be included in the operating budget each year.
3.	It is further agreed that the Board of Managers shall at all times require adequate and appropriate insurance from all general and subcontractors, evidenced by certificates of insurance to be furnished to the Board of Managers.
	B.	In the case of any unplaced insurance or self-insurance, the parties further agree that all damages, costs, charges, judgments, expenses, as well as the cost of investigating and defending claims against any of the three towns, including attorneys' fees and expenses, that Orleans, Eastham or Brewster may incur by reason of any alleged act, neglect, omission or default on its part of that of its employees, agents or contractors in any way arising out of the construction and/or operation of the aforesaid facility, shall be shared equally by said towns, regardless of fault, to the extent that such expense shall not be covered by insurance.
SECTION IX. Casualty and Eminent Domain
In the event that any property within or upon the site shall be damaged or taken by eminent domain, the Board of Managers shall determine and direct what use shall be made of all proceeds that may be recovered on account of such damage or taking; but if it shall be unable or unwilling to make such determination within forty-five (45) days after such funds have been received, the net proceeds shall be divided and distributed to the towns in equal shares.
SECTION X. Taxation
All property used in connection with the operation of the aforesaid facility shall be exempt from taxation by any town.
SECTION XI. Fiscal Year
The fiscal year for the operation of said facility shall commence on July 1 of each year.
SECTION XII. Annual Reports
The Board of Managers shall submit a written report each year to the Selectmen of each town, for inclusion in the annual reports of Orleans, Eastham and Brewster, containing financial statements concerning the operation of the facility, as well as a statement showing the methods that were used to compute the annual charges apportioned to each town.
SECTION XIII. Effective Date
This agreement shall become effective upon the execution of this instrument, as duly authorized by each party hereto in accord with the provisions of MGL C. 40 § 4A.
SECTION XIV. Term[3]
Unless sooner terminated, as provided in MGL C. 40, § 4A, this agreement shall expire at the end of twenty (20) years from the effective date hereof.
SECTION XV. Termination
	A.	During the term of this agreement. As provided by the provisions of MGL C. 40, § 4A, any of the towns may terminate this agreement at the end of any fiscal year, provided that notice of such termination is given to the other towns at least one (1) year prior to the date of termination. The agreement shall also terminate if any of the three towns shall fail to appropriate or pay all its share of the capital costs as required by this agreement, then, in any such event:
		1.	No additional septage shall be accepted at the facility from the town which shall have terminated its support thereof, hereinafter referred to as the "terminating town."
		2.	The terminating town shall pay to the Orleans Treasurer any amounts that may have been due at the time of such event on account of the current operating costs of said facility within thirty (30) days after such amount shall have been determined by the Board of Managers and certified to its Town Treasurer. Such amount may subsequently be adjusted and become payable as provided in this agreement.
		3.	The other towns shall thereupon have the right, at their own expense, to operate the facility and to control for this purpose the land included in the site until the expiration of twenty (20) years from the effective date of this agreement without interference of any kind by the terminating town, including the imposition of taxes, usage fees or otherwise.
		4.	Each town shall continue to pay its share of any capital cost that may have been outstanding at the time of such event in accord with the provisions of this agreement until such capital cost shall have been paid in full.
		5.	The maximum volume of the facility and the types of waste to be accepted at the facility shall not exceed those of the last actual safe and reasonable level of operation recorded by the Managers for a fiscal year prior to such termination; the town that shall continue to operate the facility may accept septage from other communities for a fee up to such level of operation and retain such fees without reporting such fees to or sharing them with the terminating town.
	B.	Upon expiration of this agreement. In the event that the parties hereto shall not extend the term of this agreement, the Board of Managers shall, at the end of twenty (20) years after the effective date of this agreement or at such earlier date as the parties shall determine by agreement obtain an appraisal of the facility, excluding the land, but including all structures, equipment, supplies and materials associated therewith, and such facility shall thereupon be disposed of as follows:
		1.	In the event that Orleans shall vote to continue to operate said facility, it shall be permitted to do so upon payment to Eastham and Brewster one-third (1/3) each of said appraised value.
		2.	Otherwise the said facility shall be disposed of with the approval of the Board of Managers as follows:
			a.	If the facility shall have a market value, the assets (excluding the land) shall be sold by the Board of Managers and the net proceeds shall be divided equally between the towns, together with all moneys remaining due from one (1) town to the others arising out of the construction and operation of said facility.
			b.	If the facility shall be deemed to have no market value or if the Board of Managers shall determine that it constitutes a nuisance or liability, the Board of Managers may demolish the same, and the cost of such demolition, after any credit for salvage value, shall be borne equally among the towns.
			c.	In any other manner, including a lease thereof, which may be authorized by vote of the three towns.
	C.	Upon termination of this agreement.
The obligations of one (1) town to the others under this agreement shall cease upon its termination, except for any reimbursement or adjustments that may be due for any operating costs up to and including the date of termination and any outstanding indebtedness or obligations due from one (1) town to another on account of the facility, including the payments provided by this agreement.
SECTION XVI. Amendment
This agreement may be amended by written amendment from time to time, provided that no such amendment shall become effective until approved by a Town Meeting in all three (3) member towns.
SECTION XVII. Filing
A copy of this agreement and all amendments thereto shall be filed with the Town Clerk of each member town as a public document.
SECTION XVIII. Notice
Any notice, demand or request required to be given hereunder shall be deemed sufficiently given or served on any of the parties hereto if mailed, postage prepaid, to their respective town halls or to such other address as shall be designated by the parties, in writing, for that purpose.

[1]

Editor's Note: The site was amended 10-25-2004 STM, Art. 11. See § A200-4.

[2]

Editor's Note: Former Section 3, Board of Managers, as amended, was removed from the Code at the request of the Town of Orleans.

[3]

Editor's Note: The term of this agreement was extended 10-25-2004 STM, Art. 11. See § A200-4.

[Adopted 10-25-2004 STM, Art. 11]

Whereas, the Towns of Orleans, Brewster and Eastham, (collectively the "Towns"), are parties to an Intermunicipal Agreement between the Towns of Orleans, Brewster, Eastham for the Construction, Management and Operation of a Septage Treatment Facility, as amended, (the "IMA"), which IMA has a term of twenty (20) years which is due to expire on May 30, 2005; and

Whereas, the Towns are desirous of extending the term of the IMA for an additional period of ten (10) years and making provisions for an additional ten (10) year conditional extended term; and

Whereas, Section XVI of the IMA, provides that it may be amended by written amendment, but that no such amendment shall become effective until approved by a Town Meeting in all three (3) member Towns;

Now, therefore the Towns, in consideration of the mutual covenants set forth herein, the provisions of the IMA and the authority set forth in General Laws Chapter 40, Section 4A, and every other power, hereby agree as follows:

The term of the original Agreement, and the right and easement of all three towns described in Section II of the original Agreement, shall be extended for an additional ten (10) years, until May 30, 2015. Further, unless Orleans by vote of its Board of Selectmen, determines that it does not intend to further extend the term of the IMA, and notice of such vote is provided in writing to Eastham and Brewster prior to May 30, 2013, then the term of the IMA shall be extended for an additional ten (10) years until May 30, 2025. Such additional ten (10) year period shall be subject to a right in Orleans, by vote of its Board of Selectmen, to terminate the IMA at anytime during the additional ten (10) year term, provided two (2) years prior notice is given to Eastham and Brewster of the effective date of such termination. Any termination of the IMA resulting from a vote of the Orleans Board of Selectmen as provided herein shall be treated as an expiration of the term of the IMA and the termination provisions of Section XV Termination Paragraph B (1) & (2) and Paragraph C shall apply. Further, nothing in this Amendment shall be construed to eliminate the rights of any of the three parties described in Section XV to withdraw from the Agreement at the end of any fiscal year, upon one year's prior notice, or to eliminate the rights of the two remaining parties in that event to continue operating the Facility pursuant to said Section XV(A).

The Site as currently described in Section II of the IMA, and as shown as Exhibit D, attached to the IMA, shall be revised by deleting therefrom the area of land located in the Town of Orleans and shown as Parcel 1 on the sketch plan attached hereto as Exhibit E. Parcel 1 is also shown on Town of Orleans Assessors Map 39 as a portion of Parcel 7 and Map 32 as Parcel 103. Further Orleans shall have the right by vote of its Board of Selectmen at any time during the term of the IMA, including any extended term, to remove Parcel 1A as shown on Exhibit E from the area of the Site as described in Section II of the IMA. Parcel 1A is also shown on Town of Orleans Assessors Map 39 as a portion of Parcel 1. Brewster and Eastham relinquish any right and easement to use the area of land shown as Parcel 1 on Exhibit E. Further upon exercise by Orleans of its right to remove Parcel 1A as shown on Exhibit E, Eastham and Brewster agree to relinquish any right and easement to use the area of land shown as Parcel 1A as shown on Exhibit E. Orleans shall have the right, in common with the Towns, to use the Access Road to the Facility and Oak Ridge Lane, as access for general municipal purposes to the aforementioned Parcel 1 and Parcel 1A.

The Site, as that term is used in the IMA, shall be revised consistent with paragraph 2 of this Amendment.

In consideration of the Town of Orleans purchase of the land area upon which the Facility has been constructed and operated during the initial twenty (20) year term of the IMA, and in further consideration of Orleans permitting the revised land area to continue to be used for the operation of the Facility during the extended term of the IMA, the Towns agree to cause the title to that portion of the Facility, consisting of the compost building, so called, together with all associated improvements presently located on Parcel 1 as shown on Exhibit E, to be transferred to the Town of Orleans. Upon such transfer, Orleans agrees to waive all rights of contribution against Brewster and Eastham for costs associated with any demolition or removal from Parcel 1 of that portion of the Facility so transferred.

Group Health Insurance Benefits

Pursuant to the provisions of G.L. c.32B, § 10, the Orleans, Brewster and Eastham Groundwater Protection District hereby accepts certain provisions said c.32B, authorizing any county, city, town or district to provide a plan of group life insurance, group accidental death and dismemberment insurance, and group general or blanket hospital, surgical and medical insurance for certain persons in the service of such county, city, town or district and their dependents.

Pursuant to the provisions of G.L. c. 32B, § 7A, the Orleans, Brewster and Eastham Groundwater Protection District shall, in addition to the payment of fifty percent of a premium for contributory group life and health insurance for employees in the service of the district and their dependents, pay a subsidiary or additional rate.

Pursuant to the provisions of G.L. c. 32B, § 9A, the Orleans, Brewster and Eastham Groundwater Protection District shall pay one-half of the premium costs payable by a retired employee for group life insurance and for group general or blanket hospital, surgical, medical, dental, and other health insurance.

Pursuant to the provisions of G.L. c. 32B, § 9E, the Orleans, Brewster and Eastham Groundwater Protection District shall, in addition to the payment of fifty per cent of a premium for contributory group life, hospital, surgical, medical, dental, and other health insurance for employees retired from the service of the district, and their dependents, pay a subsidiary or additional rate.

Other than as set forth in this Amendment the provisions of the IMA are hereby ratified and confirmed by all member Towns.

This Amendment shall only become effective upon approval by a Town Meeting vote in all three (3) towns.