B.   CONSENT AGENDA

1.   Regular Consent Agenda (any regular consent agenda item pulled for discussion will be discussed at the end of the old/new business portion of the agenda, which is item H on this agenda)

a.   Consideration of approval of the minutes of the regular town council meeting held on February 22, 2007, and the minutes of the joint Cary/Chatham County work session held on February 20, 2007. (Town Council)

ACTION: Mayor Pro Tem Smith moved to approve the consent agenda; Mrs. Robinson provided the second; council granted unanimous approval.

_________________________

2.   Land Development Consent Agenda (any land development consent agenda item pulled for discussion will be discussed at the end of the land development discussion portion of the agenda, which is item F on this agenda)

a.   Rezoning 06-REZ-34, Napowsa Property
The property is located at 1404 Holt Road and contains 0.85 acre. The current zoning is Residential-40 (Wake County); the proposed zoning is Residential-20. The Planning and Zoning Board unanimously recommended approval. In accordance with N.C.G.S. 160A-383, and based upon the recommendations and detailed information developed by staff and/or the Planning & Zoning Board contained in the case report, approval of this case by the Cary Town Council will officially adopt the individual rezoning report as evidence that consistency with the Comprehensive Plan has been thoroughly evaluated and that this is a reasonable action to further the community’s public interest in carrying out the Comprehensive Plan. (Mrs. Debra Grannan)

06-REZ-34 Napowsa Property Rezoning Staff Report
to Town Council

Background Information

Existing Zoning:  Residential 40 Wake County (R-40 W)

Requested Zoning:  Residential 20 (R-20)

Land Use Plan Designation:  Low Density Residential (1-3 dwellings per acre).  The requested zoning complies with the Comprehensive Land Use Plan.

Acreage:  0.85±

Location:  1404 Holt Road

Applicant: Town of Cary Planning Department

Town of Cary Case Manager:

Debra Grannan, Senior Planner

316 North Academy Street

Cary, NC 27513

(919) 460-4980

Debra.grannan@townofcary.org

Summary of Requested Rezoning

This property was annexed by the Town of Cary on November 14, 2006.  The land is currently zoned under the Wake County classification of Residential 40 (R-40 W.)  Because the lot size is less than 40,000, square feet Cary’s closest equivalent zoning designation is Residential 20 (R-20). There is one dwelling unit on the property.  The lot size does not permit any additional lots.

A.  Transportation
Existing Roadway Section:  Holt Rd.: 2 lanes, 60’ right of way (ROW)

Future Roadway Section:  2 lane road with median

Schedule:  N/A

Sidewalk Requirements:  required on both sides

Bicycle Requirements:  14’ wide outside lane required

Transit Requirements:  None

B.  Traffic Impact Analysis:  No increase in number of lots; a traffic impact study is not required.

C.  Parks & Greenways:  According to the approved Parks, Recreation and Cultural Resources Facilities Master Plan there are no issues related to this site. 

Reference Information

Meeting Schedule: 

Town Council Public Hearing

Date:  January 11, 2007

Action: Forwarded to Planning & Zoning Board

Planning & Zoning Board

Date:  February 19, 2007

Action: Recommended unanimously for approval

Town Council Action:

Date:  March 8, 2007

Justification Statement

An applicant’s justification statement is not required since this case is being initiated by the Town in order to establish a Cary zoning district.

Schools

The current lot size is 37,026 square feet.  With a zoning of R-20 there would not be room to create any additional lots, and therefore the existing impact on area schools would not be increased.

Development Plan Issues

The purpose of a rezoning is to evaluate the appropriateness of this land use for these parcels of land.  Specific development requirements related to the technical aspects of land development, such as access, stormwater management, road improvements, utility line placement, road connectivity and landscape plantings, are not considered during the rezoning process.  However, all of these development issues must be addressed for compliance with existing requirements spelled out in the Land Development Ordinance (LDO) when the site or subdivision plan is submitted.

Changes since the Public Hearing

None

Feedback at the Public Hearing

Staff presented the rezoning case.  The property owner was not present but staff explained to the Council that they were not required to attend.  No one spoke in favor of or opposed to the request and there was no discussion.

Staff Findings

The application of Residential 20 (R20) zoning to the subject property will not increase the number of lots possible on this site and therefore, has minimal impact on adjacent property owners. The existing dwelling on the site will conform to setback and lot size requirements for the requested zoning. Staff recommends approval of the rezoning.

Planning and Zoning Board Recommendation: On February 19, 2007 the Planning and Zoning Board voted unanimously to recommend approval of this request for the reasons cited by Staff.

Ordinance for Consideration:  06-REZ-34 

AN ORDINANCE TO AMEND THE OFFICIAL ZONING MAP OF THE TOWN OF CARY TO CHANGE THE ZONING OF APPROXIMATELY .85 ACRES LOCATED along Holt Road owned BY E. WARREN AND PATRICIAL NAPOWSA. FROM R 40 Wake County (R40 W) TO Residential 20 (R20).

BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF CARY:  

Section 2:  That the Property is rezoned from Residential 40 Wake County (R40 W) to Residential 20 (R20) subject to all the requirements of the Cary Land Development Ordinance (LDO) and other applicable laws, standards, policies and guidelines.  

Section 3:  This ordinance shall be effective on the date of adoption.

Adopted 3/8/2007

ACTION: Mayor Pro Tem Smith moved to approve the consent agenda; Mrs. Robinson provided the second; council granted unanimous approval.

(Ordinance O-2007-09 is also on file in the town clerk’s office.)

_________________________

b.   Comprehensive Land Amendment 06-CPA-10, Modern Woodmen of America
The property is located at 2009, 2011 and 2013 Piney Plains Road and contains approximately 1.20 acres. The current comprehensive plan designation is High Density Residential; the proposed comprehensive plan designation is Office/Institutional. The Planning and zoning Board unanimously recommended approval.. (Mr. Scott Ramage)

06-CPA-10 Modern Woodmen of America Comprehensive Plan Amendment Staff Report to Town Council

1.  BACKGROUND INFORMATION  

Current Comprehensive Plan Designation:
High Density Residential (HDR)

Requested Comprehensive Plan Designation:
Office and Institutional (OFC/INS)  

Note:  The applicants’ request was amended to “Office and Institutional or Medium-to-High

Density Residential (OFC/INS or MDR-to-HDR)” on February 26, 2007 , following Planning Board action on February 19, to conform to the Board’s recommendation.

Acreage:  1.22 ±  

Location:
2009, 2011, and 2013 Piney Plains Road, Cary, NC  27518
(Note:  The applicant is only requesting the CPA for 2011 and 2013 Piney Plains Road.   The Town owns the property at 2009 Piney Plains Road.)   

Applicant (for 2011 and 2013 Piney Plains Road ):
Doug Polk
Modern Woodmen of America (MWA)
405 Oakridge Road
Cary , NC 27511
(919) 467-5444
dpolkmwa@earthlink.net  

Applicant’s Contact:
Tom Wells
Doug Polk Agency of MWA
312 Hunters Crossing
Cary, NC 27518
(919) 233-8298
tawells@bellsouth.net  

Applicant (for 2009 Piney Plains Road):

 

Town of Cary  

Town of Cary Contact and Case Manager:
Scott Ramage, Principal Planner
316 N Academy Street
Cary, NC 27513
(919) 462-3882
scott.ramage@townofcary.org

2.  SUMMARY OF REQUESTED COMPREHENSIVE PLAN AMENDMENT  

A.  Land Use Plan and Area Plans

Current Plan Recommendations:  The Southeast Area Plan (adopted 2004) is the governing element of the Comprehensive Plan for the subject properties.  The Southeast Area Plan recommends that the subject parcels – along with most of the other nearby existing single family lots on the east side of Piney Plains Road, south of the Dellinger PDD – be developed or redeveloped as High Density Residential (HDR).  High Density Residential includes multifamily and attached housing at densities of about 8 dwellings or more per acre. 

Proposed Plan Amendments:  The applicants request that the future land use designation for the two single family lots at 2011 and 2013 Piney Plains Road be amended from High Density Residential to Office/Institutional.  The Town-owned single family lot at 2009 Piney Plains Road is “sandwiched” between the applicant’s parcels and an Office & Institutional pod of the Dellinger PDD.  Hence, staff recommends that this parcel also be amended from HDR to Office/Institutional if the applicant’s amendment request is approved.  This would prevent 2009 Piney Plains from remaining as an “island” of HDR, squeezed between Office/Institutional parcels.

B.  Comprehensive Transportation Plan

Current Plan Recommendations:

Piney Plains Road:
Existing & Future Roadway Section:  5 lanes, 90’ Right-of-way (ROW) - complete

Sidewalk Requirements:  Exists on both sides

Bicycle Requirements:  Construction complete

Transit Requirements:  Transit stop not required

Proposed Transportation Plan Amendments:  No requested changes

C.  Parks, Recreation, and Cultural Resources Master Plan

Current Plan Recommendations:  The subject parcels are not affected by any elements of the Master Plan. 

Proposed Parks Plan Amendments:  No requested changes  

D.  Other Comprehensive Plan Volumes
No requested changes

3.  REFERENCE INFORMATION  

A.  Meeting Schedule:

Town Council Public Hearing

Date:  December 14, 2006

Action:  Forwarded to the February 19 P&Z Board meeting  

Planning & Zoning Board:

Date:  February 19, 2007

Action: The Board recommended approval 8-0 of the Comprehensive Plan Amendment, but with the staff-proposed modification to include “Medium-to-High Density Residential” as well as the requested “Office/Institutional” use as the recommended uses for the parcels. 

Town Council Action

Date:  March 8, 2007

B.  Parcel and Owner Information

C.  Applicant’s Justification Statement Submitted September 26, 2006

Provided below are the applicant’s responses to the CPA Justification Questions contained in the application form.   (The application questions are repeated in boldface.)  Please note that the statements below are that of the applicant and does not necessarily represent the views or opinions of the Town of Cary :  

How is the proposed request reasonable?  In explaining how it is reasonable, please address the following, if applicable:  

1.  Describe how the requested amendment is warranted due to changes in conditions, forecasts, or assumptions since the original Comprehensive Plan recommendations were developed? 

“Initially, Piney Plains Road was a rural two-lane residential street with single family homes.  It is reasonable to assume that the existing single family homes will be redeveloped into uses compatible with the O/I zoning.  This amendment is warranted due to the widening of the roadway, the development of PDDs and other O/I zoning on Piney Plains Road.  The opportunity for change is ripe and present homes should be developed along the lines of the Walnut Street Transition Corridor.  As this transition gathers momentum, our O/I request and development will fit the transition.”  

4.  PUBLIC HEARING COMMENTS AND STAFF ANALYSIS

A. Feedback at the Public Hearing

Staff presented the case and the applicant concurred with the statements.  No one spoke in favor of or opposed to the request. 

B. Changes since the Public Hearings

There were no changes made to the case prior to the Planning Board action, however following the Planning Board meeting the applicants revised their requested Plan Amendment to conform with the recommendation of both staff and the Board, namely that the subject parcels be designated as “Office/Institutional or Medium-to-High Density Residential” in the Southeast Area Plan, rather than just as “Office/Institutional.”

C. Staff Analysis of the Amendment Request

As noted in 2.A., above, the Southeast Area Plan (2004) currently recommends the subject parcels for High Density Residential development.  This recommendation was based on several considerations during the course of Plan development in 2003-2004.  First, it was recognized that – over time – these single family lots along Piney Plains Road would tend to become untenable for continued use as low density single family.  This was due to impacts associated with the widening of Piney Plains Road, coupled with the anticipated impact of constructing the adjacent Lodge at Crossroads apartment complex. 

Second, it was felt that nonresidential uses should be avoided for these single family lots facing Piney Plains Road , in order to avoid an intrusion of nonresidential strip development into the existing residential character along this section of Piney Plains Road .

Third, it was thought that these lots, along with about six other nearby single family lots along the east side of Piney Plains Road, might have an opportunity to develop as high density housing in conjunction with The Lodge at Crossroads.  (The adjacent phase of The Lodge was in its early construction planning phases at that time.)   Alternatively, it was felt that the lots were also of ample size for small-scale townhome development, independent of The Lodge at Crossroads. 

Section 3.2.2(B) of the LDO states that:

“Proposals to amend the Comprehensive Plan shall be evaluated based upon whether the amendment is necessary in order to address conditions including, but not limited to, the following:

• A change in projections or assumptions from those on which the Comprehensive Plan is based;
• Identification of new issues, needs, or opportunities that are not adequately addressed in the Comprehensive Plan;
• A change in the policies, objectives, principles, or standards governing the physical development of the Town or any other geographic areas addressed by the Comprehensive Plan; or
• Identification of errors or omissions in the Comprehensive Plan.” 

In the case of the subject lots, the only new information since the SE Plan was adopted is that none of the single family lots along Piney Plains Road were ever incorporated into the final phase of The Lodge at Crossroads.  Townhome development of the lots is still viable.

However, the new opportunity presented by the proposed Plan Amendment is that it might be possible to redevelop the subject parcels for office uses in a manner that retains a residential character that is compatible with the remaining homes along Piney Plains Road.  For example, small-scale office buildings of 1-2 stories, designed in a residentially-compatible style using pitched roofs, double-hung windows, brick and lap siding, and so forth, could enable such office uses to fit into the residential character of the street.

The subject parcels are also adjacent to a future office portion of the Dellinger PDD.  Thus, the requested office uses would be contiguous with other office uses.

Thus, a compatible transition along this section of Piney Plains Road could still be achieved by recommending that these single family lots be used either for Medium or High Density Residential, or for Office uses having a residential scale and appearance.  A Note could be added to Map 1: Future Land Use of the SE Area Plan to capture this recommendation.

Lastly, the requested amendment is supportive of the Town’s emerging goal of providing additional sites for employment-based economic development.

D. Staff Recommendation on the Comprehensive Plan Amendment

Staff feels that while the existing SE Area Plan designation for the subject parcels is still valid, the range of uses could be expanded to include both medium-density residential uses and office uses having a residential scale and appearance.  Such a designation would be compatible with the Cary Comprehensive Plan, and foster a compatible relationship with adjacent land uses. 

Therefore, staff recommends adoption of the requested amendment to the SE Area Plan, as recommended by the Planning and Zoning Board and as similarly revised by the applicants on February 26, 2007.

Note that any future office development on the site should conform with the Comprehensive Plan’s policy that between adjacent properties having different uses, there should be a gradual transition in development intensities, building scale, architecture, and site design.  Thus, any office rezoning for the subject site would ideally include conditions that ensure appropriate and compatible transitions.

E.  Planning and Zoning Board Recommendation   

At their February 19, 2007 , meeting, the Board recommended approval 8-0 of the Comprehensive Plan Amendment, but with the staff-proposed modification to include “Medium-to-High Density Residential” as well as the requested “Office/Institutional” use as the recommended uses for the parcels.  Don Frantz mentioned that in general he did not favor designating parcels for multiple uses on the Land Use Plan, and hoped there would be fewer such cases in the future.  The Board’s motion read as follows:

The Planning and Zoning Board recommends that Town Council adopt an ordinance amending the Comprehensive Plan as requested by the applicant, but with the staff-proposed modification to include “Medium-to-High Density Residential” as well as the requested “Office/Institutional” use as the recommended uses for the parcels.  The Board finds that this amendment is consistent with the spirit, intent, policies, and goals of the current Town of Cary Comprehensive Plan and any other officially adopted plans that are applicable, for the reasons stated in the staff report and including the following:

·         The office land uses are adjacent to the office section of an adjacent PDD;

·         The requested amendment supports the economic development goals of the Town;

·         The requested amendment provides a reasonable transition to adjacent land uses.

F.  Proposed Ordinance:   

06-CPA-10

AN ORDINANCE TO AMEND mAP 1 OF THE southeast area plan, AN ELEMENT OF THE COMPREHENSIVE PLAN OF THE TOWN OF CARY, TO CHANGE THE DESIGNATION OF APPROXIMATELY 1.22 ACRES LOCATED at 2009, 2011, and 2013 Piney plains road fROM “HIGH DENSITY RESIDENTIAL (HDR)” TO “OFFICE/INSTITUTIONAL OR MEDIUM-TO-HIGH DENSITY RESIDENTIAL (OFC/INS OR MDR-TO-HDR).”

BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF CARY :  

Section 1:  The Comprehensive Plan of the Town of Cary is hereby amended by changing the future land use designation for the properties identified below from “High Density Residential (HDR)” to “Office/Institutional or Medium-to-High Density Residential (OFC/INS or MDR-to-HDR)” on the Southeast Area Plan, Map #1.

Section 2.This ordinance shall be effective on the date of adoption.

Adopted 3/8/2007

ACTION: Mayor Pro Tem Smith moved to approve the consent agenda; Mrs. Robinson provided the second; council granted unanimous approval.

(Ordinance O-2007-10 is also on file in the town clerk’s office.)

_________________________

3.   Operations Committee, March 1, 2007 (any committee consent agenda item pulled for discussion will be discussed at the end of the committee discussion portion of the agenda, which is item G on this agenda) (Mrs. Robinson)

a.   Highcroft Sewer Easement – Recognize Developer Payment (EN07‑079)
Committee unanimously recommended recognizing revenue in the amount of $82,000 and creating new capital project SW1151, Highcroft Sewer Easement.

STAFF REPORT

Operations Committee, March 1, 2007

Highcroft Sewer Easement – Recognize Developer Payment (EN07-079)

Consideration of recognizing revenue in conjunction with the Highcroft Sewer Easement Project (SW1151)

Speaker:  Mr. Tim Bailey

 

From:  Tim Bailey, P.E., Director of Engineering
Prepared by:  Steve Brown, P.E., Associate Director of Engineering
Approved by:  William B. Coleman, Jr., Town Manager
Approved by:  Benjamin T. Shivar, Assistant Town Manager

In October 2006, Town Council approved entering into a reimbursement contract for easement acquisition assistance related to the offsite sewer line serving the Highcroft Village subdivision.  Highcroft Village is located along Green Hope School Road to the east of Green Level Church Road.  The developer, Impact Properties Group, LLC, is required by this agreement to place funds on deposit to cover anticipated expenses since they are to bear the full cost of easement acquisition.  There will be no fiscal impact to the Town other than staff time.  The developer has provided payment of this deposit in the amount of $82,000.  Town Council must take official action to recognize the revenue, and is requested to place these funds into a new capital project.  Staff recommends that this $82,000 deposit be recognized and placed into the Highcroft Sewer Easement capital project, project number SW1151.

Fiscal Impact:  If the Town failed to recognize the revenue the Town would need to cover the cost.

Staff Recommendation:  Staff recommends recognizing revenue in the amount of $82,000 and creating new capital project SW1151, Highcroft Sewer Easement.

ACTION: Mayor Pro Tem Smith moved to approve the consent agenda; Mrs. Robinson provided the second; council granted unanimous approval.

_________________________

b.   Bid Award for Piney Plains Road Sewer Extension (EN07-080)
Committee unanimously recommended awarding the Piney Plains Sewer Extension Project to J.F. Wilkerson Contracting Company Inc. for $115,586.30.

STAFF REPORT

Operations Committee, March 1, 2007

Bid Award – Piney Plains Road Sewer Extension (EN07-080)

Consideration of bid award

Speaker:  Mr. Tim Bailey

 

From:  Tim Bailey, PE, Engineering Director
Prepared by:  Robert Hirt, Engineer
Approved by:  William B. Coleman, Jr., Town Manager
Approved by:  Benjamin T. Shivar, Assistant Town Manager

Bids were received for the Piney Plains Road Sewer Extension Project on February 7, 2007 at the office of the Engineering Department.  The Engineering Department prepared the design plans and contract specifications for the Piney Plains Road Sewer Extension Project and will conduct construction administration and inspections through construction.

The Piney Plains Road Sewer Extension Project is one of several planned projects to extend municipal utility services to the areas annexed by the Town effective June 30, 2003.  This project includes the construction of a sewer collection outfall and sewer taps to serve houses that front Piney Plains Road.  At this time, seven of the ten property owners that reside within the project boundaries have applied for sewer connections to be installed at their property.

The engineer’s estimated cost for the Piney Plains Road Sewer Line was $190,000.  The tabulation of bids received follows.

Fiscal Impact:

Capital Impact

Funding for this project will be provided by the previously adopted budget of $250,000 for capital improvements project, SW5008, Piney Plains Road Sewer Extension.  This project currently has an available balance of $242,564.60.  The low bid of $115,586.30 can be addressed within the existing project appropriation.

Operating Impact

Short term personnel impacts include providing construction administration and inspections of the sewer line construction and sewer service installations by the Engineering Department.  It is expected that the project will be complete and the sewer main operational by November 6, 2007.  Longer term operating impacts include operating and maintaining the sewer line by Public Works and Utilities staff.  All of the construction administration, inspection and operation and maintenance requirements associated with this project can be provided by current Town staff with no additional staffing or funding required.

Staff Recommendation:  Staff recommends awarding the Piney Plains Road Sewer Extension Project to J.F. Wilkerson Contracting Company Inc. for $115,586.30. This award by Council represents a preliminary determination as to the qualification of the bidder and no legally binding acceptance of the bid or offer occurs until the Town has executed a written agreement.

ACTION: Mayor Pro Tem Smith moved to approve the consent agenda; Mrs. Robinson provided the second; council granted unanimous approval.

_________________________

c.   Municipal Agreement – Walnut Street Northbound Lane Addition Project (EN07‑081)
Committee unanimously recommended entering into a municipal agreement between North Carolina Department of Transportation (NCDOT) and the Town of Cary in which NCDOT will reimburse the Town a maximum of $550,000 to be budgeted within the construction account of ST1086 for the addition of a northbound lane on Walnut Street from Dillard Drive to US 1/64.  Committee also recognized that under this agreement the Town of Cary will be responsible for funding the remaining $950,000 in estimated project costs to be funded from the ST1086 US 1/64 and Walnut Interchange project.  As the current balance of this project is only $515,308, committee unanimously recommended approving staff recommendation to transfer $435,000 in unissued 2006 general obligation bond debt from the ST1087 US 1/64 and Cary Parkway Interchange Project to the ST1086 US 1/64 and Walnut Interchange project with the $435,000 being budgeted within the construction account of ST1086.

STAFF REPORT

Operations Committee, March 1, 2007

Municipal Agreement – Walnut Street Northbound Lane Addition Project (EN07-81)
Consideration of entering into the above agreement with the North Carolina Department of Transportation (NCDOT)
Speaker:  Mr. Tim Bailey

From:  Tim Bailey, P.E., Director of Engineering
Prepared by:  Kristen Dwiggins, E.I., Engineer
Approved by:  William B. Coleman, Jr., Town Manager
Approved by:  Benjamin T. Shivar, Assistant Town Manager

NCDOT has forwarded a municipal agreement for the Town to consider related to the ST1086 US1/64 and Walnut Street Interchange project.  The municipal agreement focuses on the incorporation of an additional northbound lane on Walnut Street from Dillard Drive to US 1/64.  NCDOT would reimburse the Town a lump sum not to exceed $550,000 for the addition of this northbound lane.

Fiscal Impact: 

Funding: The addition of a northbound lane on Walnut Street from Dillard Drive to US 1/64 is a component of the US 1/64 and Walnut Interchange Project (Project ST1086).   The preliminary cost estimate prepared by staff for addition of this northbound lane is $1,500,000.  Should the Town enter into the attached municipal agreement with NCDOT, NCDOT would reimburse the Town a maximum of $550,000 upon completion of the northbound lane.  The Town would be responsible for funding the remaining $950,000 of estimated project costs. 

To date, a total of $6,000,000 has been appropriated to the ST1086 US 1/64 and Walnut Interchange project.  Expenditures/encumbrances-to-date total $5,484,692 leaving a current available balance of $515,308.  This available balance supports the majority of the Town of Cary’s $950,000 portion of the northbound lane component.

To fund the remainder needed, staff recommends that $435,000 be transferred from the ST1087 US 1/64 and Cary Parkway Interchange project.  A total of $5,000,000 has been appropriated to-date to the US 1/64 and Cary Parkway Interchange project (Project ST1087).  Expenditures/encumbrances-to-date for ST1087 total $2,285,708 leaving an available balance of $2,714,292.   Transferring $435,000 from ST1087 to ST1086 will decrease appropriations-to-date to ST1087 by this amount.  The ST1087 US 1/64 and Cary Parkway Interchange project can be completed within the reduced appropriation amount.

Operating: There are no operating impacts associated with this staff report. 

Staff Recommendation:  Staff recommends entering into the attached municipal agreement between NCDOT and the Town of Cary.  According to the terms of this agreement, NCDOT will reimburse the Town a maximum of $550,000 for the addition of a northbound lane on Walnut Street from Dillard Drive to US 1/64.  The $550,000 should be budgeted within the construction account of ST1086.

The Town of Cary will be responsible for funding the remaining $950,000 in estimated project costs.  Staff recommends that the $950,000 comprising the Town’s portion of the northbound lane addition be funded from the ST1086 US 1/64 and Walnut Interchange project.  As the current balance of this project is only $515,308, staff recommends transferring $435,000 in unissued 2006 general obligation bond debt from the ST1087 US 1/64 and Cary Parkway Interchange Project to the ST1086 US 1/64 and Walnut Interchange project.  The $435,000 should be budgeted within the construction account of ST1086.

Should Council enter into this municipal agreement and approve these recommendations, total appropriations to date to ST1086 would equal $6,985,000.

NORTH CAROLINA                                                                   

WAKE COUNTY                                                            Revised

                                                                                    2/08/07

NORTH CAROLINA DEPARTMENT

OF TRANSPORTATION

                                                                                    MUNICIPAL AGREEMENT

                        AND

                                                                                    WBS ELEMENT: 40905

TOWN OF CARY

            THIS AGREEMENT, made and entered into this the ___ day of _______________,

20___, between the DEPARTMENT OF TRANSPORTATION, an agency of the State of North Carolina, hereinafter referred to as the Department, and the TOWN OF CARY, a municipal corporation, hereinafter referred to as the Municipality;

W I T N E S S E T H:

WHEREAS, this Municipal Agreement will void and supersede the bridge replacement Agreement that was executed on June 12^th, 2000.

WHEREAS, the Municipality has plans to make certain street and highway constructions and improvements within the Municipality under WBS Element 40905, Wake County, said plans consisting of the construction of additional northbound lane on SR 1313 (Walnut Street) from Dillard Drive to US 1/64 (approximately 2400 feet) in Cary; said project having a right-of-way width as shown on the project plans to be filed with the Department’s office in Durham, North Carolina; and,

WHEREAS, the Department and the Municipality have agreed that the corporate limits of the Municipality, as of the date of the awarding of the contract for the construction of the above-mentioned project, are to be used in determining the duties, responsibilities, rights and legal obligations of the parties hereto for the purposes of this Agreement; and,

            WHEREAS, the Department has approved the construction of said project and has agreed to participate in the cost of the project as hereinafter set out.

            NOW, THEREFORE, the parties hereto, each in consideration of the promises and undertakings of the other as herein provided, do hereby covenant and agree, each with

the other, as follows:

            1.         The Municipality shall prepare the environmental and/or planning document and obtain any environmental permits, and the plans, contractor specifications and estimates (PS&E package) needed to construct the project.  All work shall be done in accordance with Departmental standards, specifications, policies and procedures.

            2.         The Municipality, without any cost or liability whatsoever to the Department, shall relocate and adjust all utilities in conflict with the project.  Said work shall be performed in a manner satisfactory to the Department prior to the Municipality beginning construction of the project. 

            3.         All work shall be contained within the existing right of way.  If additional right of way is required, the Municipality, at no expense or liability whatsoever to the Department, shall be responsible for acquiring for conveyance to the Department, any additional right of way and/or easements required for said project and any other work requested by the Municipality, and removal of any obstructions and encroachments of any kind or character from said right of way and/or construction easements.  Acquisition of right of way shall be accomplished in accordance with policies and procedures set forth in the Town of Cary’s Right of Way Manual.  The Municipality shall indemnify and save harmless the Department from any and all claims for damages that might arise on account of said right of way acquisition, drainage and construction easements for the construction of said project.

            4.         The Municipality shall construct, or cause to be constructed, the project in accordance with the plans and specifications of said project as filed with, and approved by, the Department.  The Municipality shall enter into and shall administer the construction contract for said project and the procedures set out herein below shall be followed:

                        (A)  The construction engineering and supervision will be furnished by the Municipality without cost to the Department.

                        (B)  The Department's Division Engineer for the 5th Division, at his discretion, may assign a resident engineer to the project who shall have the right to inspect any portion of the work being performed by the Municipality or the Municipality's contractor to ensure compliance with the provisions of this Agreement.  The resident engineer will be the Department's representative on the project.  The resident engineer will furnish the Municipality with any forms that may be needed in order to follow standard Department practices and procedures in the administration of the contract.

                        (C)  Letting of contracts for construction and purchases shall be in accordance with North Carolina General Statute 143-129.

                        (D)  The Department's 5th Division Engineer shall have the right to inspect, sample or test, and approve or reject any portion of the project during construction.

                        (E)  The Municipality shall sample and test all materials in reasonable close conformity with the Department's Guide for Process Control and Acceptance Sampling and Testing.

(F)       During construction of the project, if any changes in the plans are

necessary, such changes must be approved by the 5^th Division Engineer prior to the work being performed.

(G)      All materials incorporated in the project and workmanship performed by

the contractor shall be in reasonable close conformity with the Standards and Specifications of the Department.

                        (H)  Upon completion of the project, the Municipality will furnish the 5^th Division Engineer with two (2) complete sets of “Plan of Record” plans.

(I)       Prior to the final acceptance and payment by the Department, the Division

Engineer shall make a final inspection of the completed work.  The Division Engineer will be responsible for final acceptance of the completed work on behalf of the Department.

                        (J)  During construction of the project, the Municipality shall provide and maintain adequate barricades, signs, signal lights, flagmen, and other warning devices for the protection of traffic in conformation with standards and specifications of the Department and the current edition of the Manual on Uniform Traffic Control Devices for Streets and Highways published by the Federal Highway Administration.

(K)                The Municipality shall complete said work within two (2) years of execution of this agreement.  If the Municipality has not completed its responsibilities, or in the opinion of the Department, satisfactory progress has not been made, the unexpended balance of funds may be recalled by the Department and assigned to other projects by the Board of Transportation.

            5.         Subject to compliance by the Municipality with the provisions set forth in this Agreement, the Department shall participate in the cost of the project not to exceed $550,000.  Funding for this project will be charged against WBS Element 40905 in the amount of $250,000 small construction funds and $300,000 contingency funds.  Construction costs, which exceed this amount, shall be borne by the Municipality.  Reimbursement to the Municipality shall be made upon approval of an invoice by the 5th Division Engineer and the Department's Financial Section.

                        (A) The Municipality may bill the Department for actual costs as herein stated by Engineer.  Reimbursement to the Municipality shall be made upon approval of said invoice by the 5th Division Engineer and the Department's Financial Section.

                        (B)   In accordance with OMB Circular A-133, “Audits of States, Local Governments and Non-Profit Organizations” (www.whitehouse.gov/OMB/circulars/a133/a133.html), dated June 27, 2003 and the Federal Single Audit Act Amendments of 1996, the Municipality shall arrange for an independent financial and compliance audit of its fiscal operations.  The Municipality shall furnish the Department with a copy of the independent audit report within thirty (30) days of completion of the report, but not later than nine (9) months after the Municipality’s fiscal year ends.

(C)   The Municipality shall maintain all books, documents, papers,

accounting records, and such other evidence as may be appropriate to substantiate costs incurred under this Agreement.  Further, the Municipality shall make such materials available at its office at all reasonable times during the contract period, and for five (5) years from the date of final payment under this Agreement, for inspection and audit by the Department's Financial Section.

(D)      The Municipality agrees that it shall bear all costs for which it is

unable to substantiate actual costs.

(E)     Failure on the part of the Municipality to comply with any of these

provisions will be grounds for the Department to terminate participation in the costs of the project.

                        (F)        All invoices must be submitted within one (1) year of completion and acceptance of the project by the Department.

            6.         The Municipality, and/or its agent, shall also comply with the following

state policies:  (a) Conflict of Interest, and (b) Equal Employment Opportunity.

7.         The Municipality, and/or its agent, shall also comply with the following state policy:  Minority Business Enterprises/Women Business Enterprises (MBE/WBE) as defined in G. S. 136-28.4.

MINORITY AND WOMEN BUSINESS:                                                                 7‑17‑01_R

POLICY

It is the policy of the North Carolina Department of Transportation that minority and women businesses shall have the maximum opportunity to participate in the performance of contracts financed by Non‑Federal Funds.

The Contractor is also encouraged to give every opportunity to allow MBE/WBE participation in Supplemental Agreements.

OBLIGATION

The Contractor and any subsequent Subcontractor shall ensure that minority and women businesses have the maximum opportunity to participate in the performance of the work included in this contract.  The Contractor and any subsequent Subcontractor shall take all necessary and reasonable steps to ensure that minority and women businesses have the maximum opportunity to compete for and perform a portion of the work included in this contract and shall not discriminate on the basis of race, color, national origin or sex. Failure on the part of the Contractor to carry out the requirements set forth herein shall constitute a breach of contract and after proper notification, may result in award disqualification, termination of the contract, disqualification from bidding, or other appropriate remedy.

GOALS

Pursuant to the requirements of North Carolina General Statute 136‑28.4, the following goals for participation are established for this contract:

          Minority Business Enterprises    5 FILLIN  \* MERGEFORMAT  FILLIN  \* MERGEFORMAT %   

          Women Business Enterprises     3 FILLIN  \* MERGEFORMAT  FILLIN  \* MERGEFORMAT %   

The Contractor shall exercise all necessary and reasonable steps to ensure that Minority Businesses (MB) and Women Businesses (WB) participate in at least the percents of the contract as set forth above as goals for this contract.

LISTING OF MB AND WB SUBCONTRACTORS

All bidders, at the time the bid proposal is submitted, must also submit a listing of MB and WB participation on the appropriate form (or facsimile thereof) contained elsewhere in this proposal in order for the bid to be considered responsive.  Bidders must indicate the total dollar value of MB and WB participation of the contract.  In the event the bidder has no MB and WB participation, he is still required to indicate this on the forms by entering the word or number zero.  Blank forms will not be deemed to represent zero participation.  BIDS SUBMITTED WHICH DO NOT HAVE MB AND WB PARTICIPATION INDICATED ON THE APPROPRIATE FORM WILL NOT BE READ PUBLICLY DURING THE OPENING OF BIDS.  These bids will not be considered for award by the Department and they will be returned to the bidder.  Bidders have the option of submitting their MB and WB participation in an abbreviated format as required in Paragraph A below, or the bidders may submit their MB and WB participation in the additional detail required by Paragraph B below.  In the event the bidder elects to submit MB and WB participation in accordance with Paragraph A and is determined to be the apparent lowest responsive bidder, that bidder must deliver to the Town of Cary Engineering Department no later than 12:00 noon of the sixth day following the opening of bids, a detailed MB and WB submittal as required by Paragraph B below.

Only those MB and WB firms with current certification by the Department will be considered acceptable for listing in the bidders submittal of MB and WB participation.

A.       The contractor shall indicate on the form for listing of MB and WB Subcontractors the following required information:

REQUIRED INFORMATION

          (1)      The names of MB and WB firms committed to participate in the contract;

          (2)      The Contract Item Numbers of work to be performed by each MB and WB firm; and

          (3)      The total dollar amount to be paid to each MB and WB based on agreed upon unit prices.

Failure to indicate the required information on the specified form will cause the bid to be considered nonresponsive and it may be rejected.

B.       In lieu of submitting the information required by (A) above, the bidder may submit the detailed information required below along with the bid proposal form.

REQUIRED INFORMATION

          (1)      The names of MB and WB firms committed to participate in the contract;

          (2)      The Contract Item Numbers and Contract Item Descriptions and agreed upon unit prices of work to be performed by each MB and WB firm; and

          (3)      The total dollar amount to be paid to each MB and WB based on agreed upon unit prices.

Failure to indicate the required information on the specified form will cause the bid to be considered nonresponsive and it may be rejected.

The Department will not allow any substitutions, deletions, or other alterations to the listing of firms committed for MB and WB participation and/or the respective listed contract item numbers after opening of bids.  The Department will not allow adjustments to total dollar amount of MB and/or WB participation after the opening of bids which would result in the MB and/or WB participation being less than the contract goal.  The only exceptions to the requirements of this paragraph will be:  (1) to allow for replacement of a MB or WB firm that had been decertified after opening of bids, and (2) to allow alteration of the listed contract item numbers subject to the Bidder submitting sufficient documentation to verify an obvious error in the initial submittal.

C.       If the MB and WB participation submitted in response to Paragraph A/B does not meet or exceed the MB and WB contract goals, the apparent lowest responsive bidder must submit information to satisfy the North Carolina Department of Transportation that sufficient reasonable efforts have been made to meet the contract goals.  One complete set and one (1) copy of this information must be received in the office of the Town of Cary Project  Manager no later than 12:00 noon of the sixth day following opening of bids.  Where the information submitted includes repetitious solicitation letters it will be acceptable to submit a sample representative letter along with a distribution list of the firms being solicited.  Documentation of MB and WB quotations shall be a part of the good faith effort submittal as necessary to demonstrate compliance with the factors listed below which the Department considers in judging good faith efforts.  This documentation may include written subcontractor quotations, telephone log notations of verbal quotations, or other types of quotation documentation.

          The following factors are what the Department will consider in judging whether or not the bidder has made adequate good faith effort:

          (1)      Whether the bidder attended any pre‑bid meetings that were scheduled by the Department to inform MBs and WBs of  subcontracting opportunities;