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Home My WebLink About98-07133 J ~I )01 ., ~ \;,. .::t'] -.Q'j ~l \I~ ~ .~ ..' I '1: .....'. (): ,-,' 0... ::, ()' 1.,.' ~' ", ~ ( , I I , I 1 I I I I I ! " .~ - ~' "' "i: G:~ .~ . - ""l:s' (J J .~ :)0... CI: -,;-i-o - ~ - \. C' 'l( o c:: 0 ~1.....s: ~ < t- .:i . _ .:i cJ~ct tJ ,<\~) ,'.'I( , \ 1 1 "I "J I ~Jl '~ '1 ;~ ;~ 'q: .i~ .',t; & ;, ';;i , I , i ! .l I I . . j .::I , ~ . ~ ..... .... r-. ,~. ~ s ~ Cr 1 \ . ,".''':' ': "~ EVANlI'..:WOOnlBmD 'i:;'>,~' .',":;:, :i"')'~~~'~~~~:'~_~:,:~~,' ,'" :,:::;" ,,' : ',.HAAR1.a..UAIJ, \PICNN8Y~VANI~" 1 7' to-0080' "'.- ~" I ; "'''''1' ",'. P;:b'.'cn,;('.=::=~, :,', ':t:'t:.\~, ~;J: " ..' ;.) (, ,'. ~", , 1 ' t.../~!'i";".\.' ',::r.: J " ,,( ';"')i 'I H:l /,:;l~~)'~'Y" -( "\" "." ""I~J"1li,<t\1 .'-, ',.J' '1,1" '. ,,~i('1' v:!i.r~", ,....t'~;. " " ,0,' . , ,'. n!;';;I/:/l.\ll!l~'; 1/ )' " ' . . JU....1f<'"..."...:~U"-~""..".,.~,,;'_....:,,--- . -'f.l ,.."I" ''-'':'-' .;. "l b h L I 1 , \ / J , ( , " , , ( "", "c. ' . ~ ' " " ,.." ,j 'I, ~ . ,-, "" -' . .: r' . , " A' J..... - ~_,J-J"~ > -'~_." _ ,"'"~."...r.l\7i~_"~'\~"~'~""'.:.',.-.--'~'.-,>.'''''~''''>'-.'.'~":" -:-~ .,~.:y..'.-..I. 1..-':::. ,'1,. '.: ....:..0:--. ',' t'. cmIBEIU,,\NIJ-FI{ANI\I.IN .1(lIN'I' ~IU:\ICII',\L ,\1 ''I'IIOIU'I'Y. I'laiatiff IN Till': cot 'Irr (>I-' ('ml~ION PLEAS Cl )\IBI':I(L\NI) cot ) NT\'. I'I':N:\'SYLV.\NIA \', BOI(OU(il I OF SIIIPPE:\SllUIW, sIIII'I'ENSBl:W; BOi(OI:(iff AlITlIOl{ITY and SIIII'I'ENSBl)f(li BOl{()l)(Jl/ COUNSEL, lJefendants ((('I /J,,? [~'L< " if Cf\'IL ACTION IN EQl liT\' COMPLAINT AND NOW conics Plaintiff', Cumher!and.Franklin.loil1t J\lunicipal Authority I"CF.lJ\IA"], by and through its attorneys, 1\ll'tte, E\'ans and Woodside, ami hereby mes this Complaint seeking Declaratory and IlI,juncti\'e relief from this Court, and ill support thereof a\'ers as filIlO\\'s: I, Plaintiff, CFIJ\IA, is a Illnnicipal awhority of the COllnnOll\\'calth of Pellllsyl\'ania, CF.l1\IA presently prO\'ides sewer collection ser\'iees to SonlhhamplOll Township and Orrsto\\'Il I lo)'() II gh , locHed in Franklin Counly. and Southhalnptoll Towllship and Shippenshurg Township, locall'd in Clnnherland COllnty Ihereinafter collectin'l\' reli'rred to as "CF.lJ\lA J\ll'nlher :-lnllil'ipalitil's"J, 2. Ikli.'IHLnil. Boroll~:h of Shippl'nshlll'g I"Borollgh"I, is a nlllllicipal corporation!ocated inl'ulll!il'r1and .IIHI Frallklin ('olllities. I'l'nllS\'h'allia, ._..._~ - ~.- .. 8, The I f)77 Agl'eelllclll has hl'Cll in placc lill' OVCI' 1ll'Clllv,olle l'cal'S, 8, Over thc cOllI'se of the last twcnty.one ycars, thc nUluhcl' of I'csidential ratepayers requil'iug scwage collection, transport aIllllrcatIllellt services in the Borough has increased and in CF.lMA has draIllatically increased, ] 0, At present, there arc approximately 1 ,GOO residential ratepayers in the Borough and approximately 3,000 residential ratepayers (more specifically "E,J),U.'s") in the CF.lI\IA Member Municipalities 11'110 joiI1lly utilize the w",,,,rp for sewage treatIllent. ] ]. For the fOl'eseeable future, any signil1cant growth ill the Shippensburg region must OCCllI' in CF.lMA memher constituencies, hecause the Borough is "built out", ] 2, Despite the dramatic increases in population. population density aud residential aud comIllercial de\'eloplueut that ha\'e occurred within the Borough and the CF.ll\lA l\lelllher I\lllnicipalitiesuand the greaIly expanded dellland fill' sewage treatmellt services and I-(rcater sewage c<\pacity that ~lIch growth has Clll-(l'IHlel'cd--thc W77 AI-(I'C'l'lucIllllas nl'I'l'l' heeu lllodiliL'd, rcviscd OJ' I'cf(mned to aCCOlult fill' the ;\ radically changcd conditions and cirClllllSlallCCS today prcscnt in thc greater Shippcnshurg arca. 13. Sliippenshllrg Borough COllncillias collsistcntly refused to engage constructively or lI'itli good I:litli lI'itli CF.ll\IA and its IlIclllher constillll'ncies; as such, tlie Borough Council refuses to view any aclions tliat arc benel1cialto CF.lI\lA's constituent Illelllbers as benefitting the cOllllllunity as a whole. 14. ^ nl<\iority of the Borough Council's current individual menlbers acknowledge that the existing lntergo\'el'lllllelltal Agreement is inadequate fClr addressing the relationship bct\\'een the Borough, Borough Authority, CF.ll\IA and its constituent melllbers. 15. All parlies to this action acknowledged the inadequacy of the existing agreelllem when they entered nq~otiations to replace the JD77 Agn'r:'lllplll. IG. Borough Council has declared the negolialions lilr a new agreement 10 be at an enu. 1 , , .'."....._----," .... :.. ". ,':',: ~F,T~:1.-~-"-~:'.- -.~:-,.~.:.<..,P..:----~~-::,: .:L.~-.~.~":.~~:~.-~--~~:,~~.~';~~.-~~-~:. ,l-"~:' .',~.'.'.-..\' >. '.'}> - ~...f-.f~~....:z::'>> ..~ 17. The J !J77 Agrcl'1I1ent is a contract of inl1nite dllralion, as it cOlllains no lCnninatioll dale. Under the I D!n Agreelnelll's tl'J'I11S it cannot lapse unless both parties agree. 18. Pursuant to the origillalterms and conditions of the 1 fl77 Agreement, the Borough owns the W\Vl'1' ami all sewer lines lI'ithinlhe Borough; CI']MA owns all sewer lines and pumping stations localed in the CF.lI\lA Member Municipalities adjacent to and surrounding the Borough. 1 fl. Pursllant to the terms and conditions of the 1977 Agreenlent, CF.lMA is allocated 2fJ.fl',Yr, of the capacity of' the existing sewage collection, transportation, treatmellt and disposal facilities, said iilcilities consisting of the Borough W\VTP, the existing sewer lines within the Borollgh and the existing sewer lilies and pumping stations located in the CF.ll\IA J\lember J\lunicipalities. 20. According to the teJ'lllS of' the 1 f)77 Agreement, CF.lI\lA's 29.9% share of sewage capacity is lll'nnanell/ly fixed; it cannot he increased to accolllnlodaLC the increasing ljllantity of SC\\'ai!,l' hC'illg generated by residential and comlllercial ratepayers lI'ilhinthe CF.lJ\IA Tllclllher TlllIJlicipalities. ;) ~. -. .~:..x"- ...:." . ,'''' "', ", ...;, ,~~ c.~ ) ,- ,:':~":_,~:'~" -'-"~-_'",.,'-'t -', !,-_. "',~' J .' ~ _. " - .. 21. I'ursuant to tlw I U77 Ai!,recnlelll. CF.lI\I1\ pal's :W.fVlr, of all capital i1npl'OVelllellts to llle BOl'OlIgII WWTI' ;nllltllc l'xislillg se\\'cr lines wllicll service tile Borough and tile CF.lTlIA Tlll'lnller Tllullicipalities. 22. Under a separate IntergovernlllC'lllal Agrcenlellt \\'ith Shippenshurg University which agreemelll has a speciflc expiration date of Decelnher ;~ 1,1 mm, the University provides fJ.9% of contributions to\\'ards capital costs on the Borough plant. 23. Because of tile 2D.D% capital contrillUtion frolll CF.JI\IA and O.D% frolll Shippensburg University, the Borough Council appears to take lhe position that it is only in !ilct responsible fill' payment of GO% of costs. As such, tllere appears to be 110 lIlotivation on the Borough's part to allenlpt to reasonahly limit expenses. 2'1. The Boroui!,h has failed to diligently maintain the plant and provide cost effective upgrades during tile terlll of tile lntergm'enllllental Agreelllent \\'itll CF.JMA. 25. The Borollgll has estimated thaI tile WWTI' and the existing sewer lines require seven (7) [() eight (8) million dollars in capital illlprOVl'lnelllS ill order to snflkiently upgr;lde existing t:lcilities to lIandle l'xisting se\\'a~,l' no\\' and to conlply with DEl'regnlatiolls. Ii " <.:,'" :::.":'"'~;''' -'l.T ~'- .t . ,-,,-.__~.. f.. ".~~'; '''~ ~""-':;.;'''''.r,:~~-:t~;<t: -~:-.+;~'~ ,-- " ,- ~v i' " ":. . ',~. :'. " ;..r-l~:l.i-::I:"-'U"';"" ,.-~ 2(;. The /)eparlllll'lll of":II\'irollllll'lllal Hesollrces ("D/':I'''), in I fJiJ:'5, illlposed a Itlor:lloritlln on sewer hook-lips sen'ed hy the WWT/'. The Illor:lIoriuln was lifled only after an adlllillislr:lIion lIpgrade 10 plaltt capacity. 27. The mOJ':Jlorillln raised isslles oj' plant adequacy alld lIlanagemellt of region-wide concern which the BOl'OlIgh Council to date has rclilsed to acknowledge 01' address. 28. The Borough has given CI']l\1A no input into the scope, necessity 01' cost- effectiveness of the capita' improvements proposed to be made by the Borough. 29. The Borough's seleetion of nleans and methods of plant upgrades are unnecessarily expensive. 30. The Borough retllses 10 investigate less expensive design alternatives or to direct its staff or retaine~1 en/~iJle('r to adopt sllch value enhrineerillg as is necessary to reduce costs to the ratepayers. :~]. CI']l\IA rl'tains 110 eqltity in the capital ilnpro\'ellleIHs IIlade hy the Borough. , - ,!....).~.,:"'.. '"~'- 'J.~'_ 4'.' _~,"r~.:-",:;;J. :::';.~....~'-~' :.~ "'~~'-~"':"';"'''~':-~i~' ~"( -" :'T,-' ,'; J. . . . -, ~ ;--~J~;)..;....::;:-- ~~.~ '.. . . . ...,' , '- :\:2. The Boroll~h's rerllsallO allow CF.li\IA alld its cOIISllltill~ engineers to participate in the d('cisiflll-Inakin~ process relaling to tlie scope, expense and iIl'cessily of capilal inlprovenlcllls to the WWTI' is unreasonable, incquitable ami violates hoth the terms and tlie origillal intent or tlie 1D77 Ai!,reemcnl. 33. Pursuant to the I D77 Agrcement, CF.I i\lA and its consulting en~ineers arc entitled to investigate and review the necessity, cost and cmc:iency of all capital improvements proposed by the Borougl1to the WWTP and existing sewer lines. 34. Specifically, the 1977 Agreement gives CF.lMA the following rights: a) CF.lMA and its consulting engineers must be provided a "reasun::hle opportunity to inspect" all Borough sewage filcilities. See 1 D77 Agreemcnt, ~ 7. b) CF.lMA is entitled to review the estimated cost of any proposcd capital improvemenls. See 1 D77 Agreement, ~ 15:\(2). c) Any capital contributions made by CF.li\lA are subject to final adjustment alter CF.li\IA's consulting en~ineers have certified that all capital improvelllelll costs have becn ascertained and are legitimate. Sce 1977 Agrcement. ~ 18. 35. CF.ll\IA's rii!,ht to "inspcct, review and ascertain" all aspects of the Borough's propose!l capital impnl\'ements is intended to allow CF.lTlIA to participate in s ;-'-I~ " I...." ',. '; 1M, .d,: ~ .1..<~:~~-'""';""-~:;;C~~-~'--;-"""'~).--'--;"-'-;"'.'.-~~~~-_ -- -"-"'.;~ ',,": ~,., ~ '. l j. '_.' '" .. , . allY decisioncollcl'rlling capital illlpl'Ovclllellls 10 tIll' Borollgh's l'xistini!, sewai!,e t:lcililies. :3G. The IIlelllhers of' the CI']1\IA Board arc cllarj.(ed by their constituent mUllicipal elllities with prO\'idinj.( services to their ratepayers at reasollable cost. 37. Over the course of' the preceding two years, CF,lMA and its clIg;ineers havc questioned the validity and alllOlllll of' various bills it has received li'om the Borollgh for capital illlprovemellls to the WWTP and existinj.( sewage t:lc:ilities. 38. Over the course of' the past two years, the BOJ'OlIgh and Cl']I\IA have beell attempting to negotiate a nl'W Illtergovel'llll1ental Aj.(reelllent lhat would create a Hegional l\lunicipal Authority that would replace till' existinj.(, outdated agreCll1ellt. 3fJ. The jlroposed Hej.(ional I\lunicipal Authority would address certain pressing waste water treatmellt issues illc:luding, iI/It'/' alia, upi!,rades and rehabilitation of the WWTP, the need for flexibility ill future capacilv expansion, and the rehabilitation of the Boroui!,h's existillj.( sewaj.(e transport sysll'm. !l _ > ,;" ~ ';~-1'~"~"'.' "',~"'~'"'.'''"'t':-'':'''''''':I'"''"'~~'.-;'~,~.t~1'':''i>(,'~~~l,;~::~''''~ ,_fJ_1.\"",!l"'~r..:;'tOI.:.~:_~.;~:-:,,,_ ". ~.'.." ..110,,'" :~,>- . . ' ;..J-'~"", _..~_...J; . .10. nllrill~ lhc l'OIIl'S(' ol'tlie Ilcgotialiolls lil'twecllthe Horolli!,h alld CF.lMA over thc proposcd HCi!,iollal illlIllicipal AlIthoril\', tlic Horolli!,h agr('cd 10 IIwke 110 additiollal capital illlpr()\'ellll'IIlS to thc WWTI' IIl1tilllcgoliatiolls had ken Iillalizcd, with the exceplioll 01' the pmchase 01' a hclll1lter press rephlcelllelll which was constructed prior 10 the COBlIIll'llcelllclll of' Ilcgotialiolls. '11. CF.lI\IA allllthe Borough agreed lhat tlie purchase of'the Ill'W belt /liter press was necessary. 42. The Borough, however, in direct cOIllravelltioll of its agreemellt to cease other capital improvements to the WWTP untilncgotiatiolls were completed. nevertheless proceeded with pi<!ns to plll'chase alltl install the new beltl1lter press ill all entirely new filcility located across Avon Drive from the plallt, requiring considerable and unnecessary additional cost for the installation of the Ilew press. '13. CFJMA advised the Borougl1 early in negotiations that it considered the Ilew f;ICility to he a waslerlll undertaking. 10 _ ',' "}.' .:~ :~",}'~T<v-jt!:,-:,,",:-:.~",-..,~~:l:iillO~:-r_"#I..~\.'lic;",';',!,\,!'T.....-r....~..~WfiJl;'~:\"~''''...:.r;:--.., ,",,-,,, .' ~,~, ,...... ,,~ ,)~"~,', 1 --.-, ".-.-. -_._~ ._I-~~ ,1,1. Tlie BOl'OlIgli's pJ'Oposed plan fill' tlie illstallationllfllie IIl'W belt filter press is financially pl'oliibiti\'e al)(llogislically Ila\\'l'd intliat it requires I) tlil' undcr utilizalion of till' exislillg buildillg wliicli presently Iillllses tile tWll old belt filt[~r jll'[!sses whicli are to be replaced; 2) tlie construction Ill' an entirely new building which is to be located across Avon Dri\'e from the existing WWTP. The locatioullf' this lieII' building will necessitate the installation of a new main sewer line, pump house and pumps for transportation of sewage across HOUle G25 (Avon Drive). The new building itselfis also too elaborate allll expensive, including additional I1xtures not necessary for the ef'lkienl operation of the plant. ,15. CFJMA will be required to pay for 2H.% of' the cost of the new belt JIlter press and housing t;lcilities despite having no input as to whether the Borough's proposed capital alteralions to the WWTP are necessary, ef1icielll or cost-clTective. 4G. CI']I\IA and its consulting engineers have concluded that the Borough's proposed building plan lil!' the new belt /liter press is wasteful, impractical, unnecessary and excessive. II , ' , . . 'III '1 . :j....~, -;!.~ ,.\f ....: q':~":.~,....",,:,,J,,,, ...:TO......: :;t,~"~'\'w~,.~,....(,~.......::,:;,~~.,,, !,.l!l. .7~~~7 \-%<K~,: >11:I.,..: ~ -""~"""',i.,;,-,.. .:. . ~.' ,"". : I" . . ;_r"I~'~...~......"''''' . COllJ'l'r 1 lmOUES'\' FOR DECI ARATOltY REI.lEF ,17. CF.ll\IA incorporales by rel'erence the a\'ernlcnls contained in paragraphs 1 through 'IG above as though fully set forth herein. '18. CF.ll\lA is a party to the 1 f)77 Ai!,reement and therel'ore has standing to challenge its legality and enforceability. .w. The 1977 Agreement purports (0 set forth the parties respective righlS and duties pertaining to the use, lllaintenance and upkeep of the sewage collection, transport and treatment facilities shared by the Borough and CF.ll\lA. 50. The 1 fJ77 Agreement is a contract of inl1nite duration, as it has no specific termination date. 51. Under Pennsylvania law, interi!,overnmental agreeJllelllS which lack a specilic termination date are void or voidable. l~ ". ":'_.' _., .,.I>'~'t.' ;'......;...':~'\:..."-.~."",'~...~~~....~~r"":":,., ',',' ...,....:",....~>.~,...-..,'.. ",' .,''''~ ;.!~ ;. "." ..-../ :'i2. Till' I D77 Agl'l'cllll'lll is 1I1Il'llrOl'l'l'alilc hcllI'ecn llic pal'lics lnldcr llic doctrine or cliani!,cd condilions. 53. The 1 ()77 i\greenlelll is void and/or voidable due to Illlltualmistakl~. 5'1. Because the 1 ()77 AgreemelH is void alld/or voidable, CF.lMA has no obligation to contribute 29.D% of the Borough's proposed capital improvements to the WWTP ami sewer Iiues. 55. The 1977 Agreement is void aud/or voidahle because the parties have acknowledged that it is no longer applicable to the challged circumstances of their relationship. 5G. The question of the legality and cnforceability of the 1977 Agreement is a real and actual controversy wbich is justiciable in this Court. 57. There exist anl;\gonistic claims hetwcClllhe parties which present the possibility of innllinent and protracted litigation. 1:1 ._'-'-~---'._~. ':... . - ...~ . 'J ' ;-'"-l'~ ,.' " .,1" - '. ~'~'-"""~''''J::.~:-':.~_~''''''-.~~1i...~.'. .~. --:'---':":',,""":.+", '.~'., ,", .' \ ~ . iiH. The rcspecti\'c illll~rcsts ol'CF,I~I:\ alld lile Borougil will he bcsl servcd il' this Court will elltcr a declaratory.iud!4Jllcllt sCllill!4li))'(h tile rigilts or till! parties witil respect to this dispute. 59. The declaratory relief sOllg!n by CF.I~IA willlilcilitate the prompt resolution of lilis dispute. GO. A declaratory judgmel1t is parliclllarly appropriate fill' issues or conlract interpretatiOll. WHEREFORE, Plaintiff CF.JMA respectl'ully requests that this Court enter a declaratory judgment in its liml!' holding that the 1 D77 Agreement between the parties is void as a malleI' of law, and that CF.1MA has no continuing obligatioll to pay 2D.9% of any capital improvements to the Borough's WWTP and sewage filcilities. COUNT II REOUEST FOR PERMANENT INJUNCTION (i1. CF.11\IA incorporates by rcferencl' the a\'CJ'IlICIllS of paragraphs 1 through (;0 :lboI'(.' ;IS lilolli!,h fllllv Sl't fi)rlh Ilcrcin. . . 11 . ',.'\ ^.':: "" ,.\.~t1""~'1',,,.....1\~I<,:r,.:\ ~~..~~~",::..,.:,,~~-. .19"'~'1.., '"","-;~.:J":""'i1;' " .~.~,." ,\: ~,~. "": .' _ . . '-r-, ,a' (,.) '-. Tile Borough h:ls decided to i!,0 /ilJ'\\'a)'(1 witII plaus to plIrclJ;Jse alld inslall a new belt !'ilter press Ill!' the WWTI'. G:3. Tile BorollglI's proposed plan for tile installation of llIe Ile\\' bell /Iller press is financially prohibitive and logistically flawcd in tlIal it requires I) lhe under utilization of' the existing building which presently houses tile two old belt l\Iter presses which are lO be replaced; 2) the construction of' an entirely new building which is to be located across Avon Drivc frolll the existing WWTP. The location of this new building will necessitate the installation of a new llIain sewer line, plllllp IIouse and PUIlIPS for transportation of' sewage across Houle G25 (Avon Drive). The new building itself is also too elaborate and expensive, including additional fixtures not necessary for the efflcient operation of the plallt. 6,1. CFJl\IA will he required lo pay for 2D.9% of the installation of the new belt filter press despite having no input as to whetlIer [he Borough's proposed capital alterations [0 the WWTP are necessary, efficient or cost-effective. G5. CFfl\l:\ and its consulting engineers bc'lieve llIe Boroui!,h's proposed bllilding plan for [he new helt /litei' press is wasldlI!, impractical, unneccssary and excessin'. I:> < ;~ , .....,...rr1 'fnt:".~ ''Y'~'~'''''''-' ~-I"~""',r' )....r~, '~"~~"'\'.t>'_~"'1ot':''''"~''~Ji!! _ ""''''''''',\01Ii~''' ".~,....... .,~..t1 -",' ,~,. . '_'. ',. . \ .' :' . :,' ',:.:;'t ,'" .' "'."1' 'r," ,':' ,': ,,' ,'.'" , " . ,'. .', " ',," '\' .i-r.~lt.. _:- G(). CF.li\IA has f'i!ed conlclnporallcollsly hercwith a l'etiliolllilr prelinlinary and permanent injunctive relief seeking a COllrt Order l'll,joining lhe Borough f'rom going forward with any capital inlprOl'emellls to the WWTP, specif1cally including the construction of the new belt Hlter press building. G7. Petitioner CF.JMA will sufTer immediate and irreparable harm if the Respondents are permitted to go f(llWard with their plans for the installation of the new belt filter presses across the road from the WWTP. Specil1cally, CF.JMA and its ratepayers will suffer irreparable harm because: a) CF.JI\IA's consulting engineer estimates the unnecessary cost attributable to the I1rst phase of the Borough's prqject, namely the installation of the belt fHter press across Avon Drive, to be in excess of $900,000; b) The construction of a building to house the new belt fllter presses, once completed, will constitute a permanent alteration of the existing WWTP; c) It will be impossible and impractical for the WWTP to be restored to its original 1\11'111 and operational integrity once the Borough has completed construction of' the new building and installed the new belt Hlter press, Inain line and lllnnp station; d) CF.ll\IA's ratepayers will be unable to rccouplhe funds contributed to this lInwarranled aJllI cosllv pl'l~iecl. c) The BOl'Oui!,h's proposed construction of a building to hOllse the nc\\' belt flltcr prl'ss, if' and whenl'ompletcd. \\'III constitule :l I(j .. '.' -.:.;/.....;if:~,.:'~.,.".-"'..l.-,...~:..'."~-. !.~.'.:;:"'*.,.,_~i:-.~".."'~u.#._~:-..:.ru~\.~"~"'''''_ ~~,.... ,,1- ::,' '.~:""..":.~ , .J_ ' '; :;,' .' -, ~ ,'"",' . ',o' ._~...... __ _ k perllwnelll alld irrellledi:1ble strllUllral ;IIHI operatiollal alleralioll or the existillg WWTI'. I) COllversely, tile Borougll will sulfcr little hardsllip if it is required to cease all capital ilnprovemellts to tile WWTP lIntil CF.lTIlA alld its cIIgillecrs have all oPPol'lullity to botll investigate the pJ'llposed capital illlprovclllellts and verify or cllallellge thc lIecessilY, el'lkicncy and overall cost of llie proposed belt I1lter press. G8. A greater injury will rcsult in this ease frolll rclllsing to grant a permanent injunction than frolll granting it, because: a) The Borough's proposed construction of a building to house the new belt nIter press, if and when cOlllpleted, will constitute a permanent and irremediable structural and operational alteration of the existing 'NWTP. b) Conversely, thc Borough will suffer little hardship if it is requircd to cease all capital improvements to the WWTP until CF.JTIlA and its engineers have an opportunity to both investigate the proposed capital improvements and \'crify or challenge the necessity, cfl1c:icncy and overall cost of tllc proposed belt filter press. GfJ. The issuance of a permanent injunction to cease construction and installation of the new hell nIter presses and ;111 other capital improvement to the WWTP will restore tile panies to their status befilJ'e the Borough's \\Tongful conduct lOok placc. Ii I ,I", '. :.r Jl~' "::'!i':"\'""':~'~'/':':~:','%"1.'~'~l"'.1; "'I.t;:'~"I'l"'~~,~.....,.,"~~~~~~~l'4A":;';;~~ ., ...:~~:r....: \........,.,: J., :'.~; , ,\: ',~ . '.~ "., "f . ", ':''':~r-_...,.)t.':'.,t'., 70. A pCJ'lIJ:lIlelll illjllllclion is IIcl'l'ssaI'Y illtbis casc bccallse CF.ll\lA's rii!,lll is clear and the Borollglt's wrong is 1I1anifest: a) PlIrsuant to the terms of the 1 f)77 Agreement, CF.lMA and its engineers are entitled to inspect the WWTP allll to rcview the legilimacy of the costs for any proposed capital improvements; b) The Borough's plan to install a new bclt Iilter press violates its agreemcnt to suspcnd all capital improvenleJ1lS untilncgolialions pertaining to the proposcd HcgionalMunicipal Authority are complete. 71. CF.lMA is entitled to injunctive relief'because this Court must determinc whethcr the 1977 Agreclllcnt which requircs CF.lI\IA to pay 2B.9% of all capital improvements is void and/or voidable as a malter of law. 72. CF.lMA is a governlllcntal entity and is thercfore not required to post a bond when seeking injunctive relief. WHEHEFonE, Plaimiff CF.ll\lA respectfully requests this Honorable Court to enter an Order granling the following relief' in favor of' CF.lMA; a) Pel'lmnently enjoining the Borough from making any capital illllll'ovemellls to the existing w\\rn' or sewage lilcilities unless lhose illlprO\'elllellls are revic\\'cd and approved hy CF.lMA's CIIj..,rilleCl's: IS . 1~ /, ~- . , '. " '. _'0' ""-'.:'''' .'.,;/1~:.~~~~'_"",~..\+_i"<.""':;_;~"'''~:~'L''~~.:::~.''''"'~~~f;j~ ,.:f. \.."'''':.,,''.:~.~ . . 1','- .'l~ ....~..., ..: "~ l-"'~ ~~' b) 1':lljoi II i ni!, the 1l01'01Igh frolll I 1l;\Idlli!, a III' ca pilal i IlIprovel lIelllS pelldilli!, this Court's ddl'1'Illillatioll of whether thl' W77 AgJ'l'l'llIeIJt betweclllhl' parties is void amI/or voidable as a lIIalter of la\\'. COUNT \II REQUEST FOR EQUITABLE REDUCTION IN CFIMA CONTRIBUTIONS 73. CF.lMA incorporales by reference the avermenls of paragraphs 1 through 72 as through fully set forth herein. 7,1. In the event that the Court deterlllines that tile Intergovel'l1mental Agreement remains in force ami ellect, CF.lI\IA requesls in the alle1'llative that the Court order the reductioll of cOlllrihutions required of CF.lJ\1A to capital improvements by any proportionate amount in which it is determined that the Borough's phased upgrade plall is ulIllecl'ssarily expcnsive or fails to reasollahly and fairly take il1lo consideration CFJI\IA conslituelll lIecds. WIIEHEFOHE, I'Llilltifr CF.ll\IA respectfillly rcquests that this Court enter a declaratory judglllelll in its iilvor holding thaI the 1 m7 Agreement between the parties is ,'oid as a matler of law, alld thaI CF.ll\lA has no cOluilluing oblii!,alioll to pay 2B.9% of ;l!lY capital illlprovcml'lus to the BO),(l\lgll's WWTI' amI Sl'\\'ai!,l' Elcilitil's. Altemativcly. 1!1 , '. ',' ~ . ' .~ ~ " ',~ ,: " .~,.' '~M','~:'''':'._''~ :" ."' _:: :~...t>-:'<'-'.~'~~'""'.'~~'t"-b ,..-:'.....;.0,. ',-,~ .....u;;,~" .....ri_ : ::.., ' , ", .", ",..:. , r...r~iJiJJ" " CF.lMA I'CSPI'Clfully rL~q\Il'sts this COl\l'llo issue au Ul'lkl' rcducing its pl'opol'tionatc share ofcapiwl conll'i1lllliOlls hy all\' alllolllll in \\'hich it is dell'I'Jllilll'd bv CF.Ii\lA's cOJlsultiug eJlgiucel's that thc !loroui!,h's phased upgrade plan is unnecl'ssal'ilv expensive. COUNT IV REQUEST FORARBlTHATION 75. CF.lMA iJlcOl'porales by l'eI'erencc the averments of paragraphs 1 throui!,h 74 abovc as though fully set forth hercin. 76. Paragraph 33 of the 1977 Agrccment requires the parties to arbitratc " . . . disputes. . . concerniJlg factual determinations under the terlllS of Ithe 1977 AgreemeJlt] . . . ." 77. The within claims j())' declaratory judgmeJlt and injunctive rclicf are not arbitrable. 7H. Assuming 111'1/11['11110 that the COlin finds the 1 H77 AgreelJlent to be legally valid ami CJI!ilrccable, CF.ll\IA is eJllitled to arbitrate its dispUlc \\'ilh the Bor<l\lgh OWl' :!o ". ,'I. :, : . '. '. '" '~~~, ",-:-""'''''' .."l"~....~~:;\l;li..."';;;';':'<~1\l:,$:,:.~ q:~ ;lfJ;.-"lJi>~t . . .. :". " . . ,. ". '.'; "..:..'. ';. . , >, ': ":".,' , : ".: ''': '. .' . '. . .. .. '":. . " .' . .... " . ': .~', ~ ,.",' ,,c' the necessity ;Ind expL'nse of' each of' the proposed capit;ll illlpmvelllellls to the W\VTl', il' the COUltl1nds thaI sllch Inalters are "isslll's of' Llc!" as alllil'ip:lll'd lindeI' thc agreement. Wlll~HEFOHE, if' this COllrt determines th;lt the W77 Agreement is ellf'orceable, Plaintiff CF.lI\IA respectf'ully requests this Court to I) issue an Order requiring the parties to arbitralC all disputes perlaining to capital improvements to the WWTP and sewage facilities and; 2) to enjoin the Borough li'OII1 commencing any such improvements unless agreed to in writing by CF.lTlIA 01' resolved by I1nal order of an arbitration panel. Hespectfully submitted. , METrE, EVANS~OODSIDE " , (~ \', \ "\ ,,~~~;,-k David A. Fitzsimons Slip. Ct. I.D. #.11722 Anthony T. Lucido Sup. Ct. I.D. #73778 :~.101 North Frolll Street P.O. Box 5f150 llarrisblll'g. I'A 1711 O-t}f150 (717) :n2,5000 -'- , By: AttOl'lll'\'S fill' l'etitioner Date: I.kccmhcr 17, I flfI8 It ~;; 1 ~ I :21 ..- " . . .~ ''':', : ,.:~" _"",...'e"~,;"""~"~~'~~';'."''''<~'':''''f;'^.~-_~~~..",..,...,.tr~:".(':.,;:-:-:~-'.l'~~~~"-"~-"":,,'. ,.-,-~.-' ',', ~', " "'~.,""', ~-r~I~;.......:::"~'J. ...... YEll! FICATION I. llalTv I'l'I'l'V, \'l'J'ifv thaI Illl' slall'IHl'nts and a\'l'I'IIll'nls l'onlained in lhl' 0' . . fOl'e!(oin!( dOl'ulllent aJ'l' tl'lIl' and 1'01'1'('('( 10 thl' Ill'st of lilY Jll'I'sollal knowll'd!(e, information and helil'f. understand thai false a\'l'I'IIll'nts h(,J'ein ar(' made subject to the penalties of lR I'a. C.S. *.IDO-I I'elating 10 nnswoJ'll falsification to authorities, / \)(".. Barry1'erJ'Y .". . / / /? ',;-.--/;, / / pi;;,.,; ;-'-'~ " '. . '. '...:....., ",.,'.. . -. .~"..- "~;l~"h~"'~:;'~.~-:"', ;;"'~ ~'... ,-- .-- ~ '-. : :' -.::, ..' ," , I ,: :" ~,~'1;,_ ,; . . .,', .'"'" (i) Exhibit A ,- 'W'" ."",' " .(, ~.: '.',' . ~ ~ '-..~:..~.: .- *~"1I7~ .__', .. '"~ ..,," .'-: .~ <r.~ . . . , ',' , ' ..'" '.. ~. .:'. . " '; " - - , . ,,~, .,.... ..,. ...11""'.... .' " . . .,1 · :;.:\, \ 'In",' ::;.." .~~!~, ., . w.ti...~..."':.... ., ;,;,.:) :,~ :;: '.'~ ' " ., " -. ' , . - \ ..,' ( I ' , ' " , . . , ,-' : . ':' '. ';~, " .' . , ' '~".' ' ,. ". .' .... '. ,'~' JOINT AGREEMENT '- .......... --. --'" .' " THIS JOINT AGREEMENT. dated ns of January 15. 1977. between CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY and the TOWNSHIP OF SOUTHAMPTON and the BOROUGH OF ORRSTOWN. both located in Franklin County. Pennsylvania. and the TOWNSHIP OF SHlPPENSBURG and the TOWNSHIP OF SOUTHAHPTON. both located in Cumberland County. Pennsylvania. parties of the first part, on the one hand. and the BOROUGH OF SHIPPENSBURG. Cumberland and Franklin Counties. Pennsylvania. and SHIPPENSBUnO DOROUGH AUTHORITY, parties of the second part. on the other hand, WITNESSETH: WHEREAS. Dorough Authority heretofore acquired and constructed the Existing Borough Facilities. and leased the same for operation and use to the Borough. as lessee: and WHEREAS. The Adjacent Municipalities and CFJMA have determined that it is necessary. in order to benefit and preserve the public health and general welfare of citizens of the Adjacent Municipalities. that CFJI.1A construct the CFJt.iA Facilities, in and for certain portions of the Adj.cent Hunicipalities and to otherwise provide appropriate service facillties for the purpose of collection, tran5porlahon, treatment and disposal of sewage and wastes; and \'IIIEREAS, The Borough and Borough Authority have been ordered by appropriate governmental authorities that it is necessary, in order to benefit and preserve the public health and general welfare of citizens of the Borough, that Borough Authority acquire and construct the Additional Borough F.-.ciHtics. and to otherwise provide appropria.te' alterations. additions. improveme-nts and extensions for th. Existing Borough Facilities for the purpose of collection. tr~nsportalion. treatment and dispooal of sewage and wastes; and ". '~2:r." .:.t~.,:....~..'i -, .~~:~;;'~;J. 4 -.",~,hI':""'" ~;"':'" ,>"'1'1:'.1 .G':..:~~~ ~r.~'l ~_. '. ~ ...' ...'. . '.. ~ , . ,,0...1 ..,...... WHEREAS. The Adjacent Municipalities and CFJ~IA, on the one hand, and the Borough and Borough Authority, on the other hand, have determined that the most efficient and practical method of providing tTansportation of sewage and wastes emana.ting frOtT. c'!'t'tain areas of the Borough. and 01 providing trans;:.', '3tion and treatment of sewage and wastes emanating from certain areas of the A ~J J-:cnt Municipalities and the Borough. respectively. is for CFJMA to acquire, to construct and to operate. as appropriate, certain sewage transportation facilities, as part of th.. CFJMA Facilities which will also provide necessary sewage transportation services, for the Borough and Borough Authority; and Borough Authority and to the extent necessary or appropriate. the Borough, to acquire, to construct and to operate I as appropriate. certain sewage transportation and treatment facilities, as part of the Existing Borough Facilities and the Additional Borough Facilities, which will 1. The followin;;: terms and phrases, for the purposes of this Joint i;' .~ l~ " I I I I also provide necessary sewage transportation and treatment services for CFJMA in, for and through portions of the Adjacent Municipalities. NOW. THEREFORE, CFJMA and the Adjacent Municipalities, on the one hand, and Borough Authority and the Borough, on the other hand, for and in consideration of covenants and agreements herein contained, to be kept and observed, each intending to be legally bound hereby, covenant and agree, as follows: Agreement, shall have the follo"'"ng meanings, unless the context clearly ",therwise requires: "Additional Borou!,!h Facilities" shall mean certain alterations, additions, improvements and extensions to the Existing Borough Faciliti~s, including the Borough Joint Facilities, and including allt'elated and necessary facilities, to be constructe-:! and owned by Borough Authority in or adjacent to the Borough, in accordance with plans and speclflcations prepared by the firm of Gannell Fleming Corddry and Carpenter, Inc. , Consulting Engineers, Harrisburg, Pennsylvania, including all future additions and improvements thereto, all of which shall be deemed to be o...."ed exclusively by BOl"ough Au.thority. - 2 - . . . . - .' ',' :. ' : . ' . ..' .,' '__'.," . . I' I" ), . ~ " . ~.., T~' "Adjacent Municipalities" shall mean the Township of Southampton and the Borough of Orrstown, both located In Franklin County, Pennsylvania, and the Township of Southampton and the Township of Shlppensburg, both located in Cumberland County, Pennsylvania. "Borou~h" shall mean the Borough of Shippensburg, Cumberland and Franklin Counties, Pennsylvania, . Pennsylvania municipal corporation, "Borou~h Authority" shall mean Shippensburg Borough Authority, a municipality authority of the Commonwealth, established by appropriate action of the Borough. "Borou!!h Facilities" shall mean the Existing Borough Facilities together with the Additional Borough Facilities, all of which shall be deemed to be owned exclusively by Borough Authority; excluding however, facilities governed by paragraph 19. "Borou!!h Joint Facilities" shall mean the sewage collection, trans- portation and treatment and disposal facilities, including a sewage treatment plant, described and referred to in Exhibit "A" and shown and located on Exhibit "C", both attached hereto, and made part hereof, all of which shall be deemed to be owned exclusively by Borough Authority; excluding, however, facilities governed by paragraph 19. "CFJMA" shall mean Cumberland-Franklin Joint Hunicipal Authority, a municipality authority of the Commonwealth, established by appropriate action of the Adjacent Municipali ties, "CF JMA Joint Facilities" shall mean the sewage collection and transporta- tion facilities described and referred to in Exhibit "B" and shown and located on Exhibit "C". both attached hereto, and made part hereof, all of which shall be deemed to be owned exclusively, by CFJMA. - 3 - ~_f'.'.:r~. : ,', ,# ~ ,': .,';" ~':~... 'v", _'~",'.~.';~:~->j:.i~~"~k."~~;'''''~\',~'''*''.~''''{_:'~)'~'("""l,.~"",",:i;':~."'~~:,~~~:~ ~.~ ..-.......~~, " '" ~""':' .'. ,..... ,........1;.". r~1 . . " . '.,; :.~. "CFJMA Faclllties" shall mean the sewage collection system and \ sewage transportation facilities, including the CFJ!lA Joint Facilities, and including all related and necessary facilities. to be constructed and owned by CFJMA in and .' adjacent to the Adjacent Municipalities, in accordance with plans and specifications prepared by the firm of Arrowood. Incorporated, Consulting Engineers, Chambers. burg, Pennsylvania, including all future additions and improvements thereto together with facilities of Borough Authority and the Borough. transferred to CFJlviA pursuant to paragraph 19, all of which shall be deemed to be owned exclusively by CFJMA. "Commercial Establishment" shall mean any room, group of rooms, building or other enclosure used for the sale or distribution of any product, commodity, article or service and specifically shall include churches, chapels, c1ubrooms. fire houses, professional offices, banks, schools or other room. group of rooms, build,n>; or enclosure not constituting a Residence or Industrial Establi~hment. "Commonwealth" shall mean the Commonwealth of Pennsylvania. "Cost of Construction" shall mea.n t.:.'1e actual cost or the t'::5timat~d cost, as applicable, of the portion or section of CFJMA Facilities. or the Additional Borough Facilities. as appropriate. under consideration, calculated in the followinp, ~nner: A, The amount acNally paid or estimated to be paid. .s applicable, under the contract or contracts for construction of the portion or section of the CF.rMA Fadlities or the Additional Borough Facilities, as appropria\e, under consideration shall be determined. B. The amount actually paid or estimated to be paid, as applicable, under all contracts for construction of the CFJMA Facilities. or the Aclc.itional Boro\lgh Facilities. .s appropriate. .hall be determined. - 4 - ~ . '.~ ,'I,,;o;:':<:':,'~~'.~""'J',,' .,:,.",,,:';'.~:,_~'};1~~.ftli~~"~'~~~~',^,"'.~t'<.~",;~,,";.:,~~,,,,;~:;r..~~mlr~'~-'~"':~""~-::',. ".",,-,:,", ~ ::':". .', " ,_ .:' . '-, .-r-I~ ...." date the capital payment required by paragraph 16 is paid, on auma paid for engineering feea for engineering services, In each case directly attributable to the portio" or section of the CFJHA Fac;',,-ies or the Additioaal Borough F"cil;\':.o. as appropria:~, under consideration shall be determined. G. The sums determined in subparagraphs A. E and I' &bove shall be added and the to~ of auch sums shall represent the actual "Cost of Construction" or the estimated "Cost of Construction". as applicable. of the portion or section of the CFJMA Facilities or the Additional Borough Facilities, as appro- priate, under consideration. "Domestic Sewal'le" shall mean normal domestic water carried sewage and wastes. with concentrations not exceeding 210 milligrams per liter of 5 day biochemical oxygen demand, 220 milligrams per liter of total suspended solids. 30 milligrams per liter of total phosphate or 20 milligrams per liter of amonia nitrogen, "Existin~ Borou"h Facilities" shall mean the sewage collection. trans- portation, treatment and disposal facilities, including the existing sewage treatment plant. heretofore acquired or constructed by Borough and/or Borough Authority and heretofore leased to the Borough for operation and use, including all rdated and necessary bcilities, all of which shall be deemed to be owned exclusively by Borough Authority, excluding. however, facilities governed by paragraph 19. "Fiscal Year" shall mean the period of twelve months beginning January 1 of each year and also shall mear. any initial period oiless than 12 months. if applicable, under consid~ration ending on the next succeeding December 31, "Grant ARrtement" "hall mean any agreement between any governfT1ental agency of the Commonwealth of Pennsylvania or the United States of America. and the Borough or Borough Authority or any of the Adjacent Municlpalltles or CFJMA. as - 6 - ...~ . ,:'" " '.", ':,", , :I..,~~M_",'~:.~:J-,~~.,:.:_""~~"""~,,,,~,,~,~,,,:~":'~~~'7-r..\,._,,~~. :-' ';.0; . .~. ".\~, -"'I' ~"',', ","1\ . ,.-.".........,..:i1 ~", ;f:.o;.!...:::: \ " '~"'" . '. . :01 ~ '_ I .. _ ,l .' appropriate, or any law, regulations, ruling, determination or procedure 01 or administered by any such agency governing or with respect 10 any grant, loan or advancement of funds made or administered by any such agency for and toward costs of construction and related costs of expenses, related to Existing Borough FaclUtles or Additional Borough FaclUtie., or the CFJMA FaciUties, as appropriate, or any alterations, additions, improvements or extensions thereto. "Industrial Establishment' shall mean any room, group of rooms, building establishment or other enelos""." or faciUty connected, directly or Indirectly. 10 any sewer oC CFJMA, which sewer discharges sewage and wastes, directly or indirectly, to the Existing Borough Facilities and the Additional Borough Facilities and used or Intended Cor use. In whole or in part. in the operation oC a business enterprise Cor manufacturing, processing, cleaning. laundering or assembling any product. commodity or article or from which any process waste. 3S distinct from normal water carried household and toilet wastes, shan be discharged. and also including any party or person Identified or classified as an "industrial user" pur- suant to provisions of any Grant Agreement. "Industrial Wastes" shall mean all sewage or wastes which exceeds the strength of Domestic Sewage. as herein defined. "Residence~' shall mean any room, group of 'rooms t house trailer or ether enc:lcsure occupied or intended fOT occupancy as separate living quarters by a lamily or other group of persons living together or by persons living alone. l- ,,,,,,~ 0 CFJMA covenanu to construct the CFJ'MA Joint Facilities, as defined in paragraph 1 hereol. constituting part oC the CFJMA Facilities. in accordance with plans and specifications prepared by the firm of Arrowood Incorporated. Consultin g Enginters, Chambersburg. Pennsylvania, and in 2ccordance with provisions hereof. or in accordance with such changes or modifications .s do not make substantial changes in such plans or specifications or as are approved by Borough Authority. - 7- '. \ ..~ Il.~.::'. . . " I 1 I I r I ~ , .-.I'~.1~_.::. .~ _ . " j~, ::I'~'~ ,.:;-~ .".."-,,,',~ ...~-~.^'!.'./'~t',..t::"r:~~:~-.~.7"'~~"-..r.'"-{,"'~ r...,~..:~~,,'.'.L~"~"'J~" ;:"~,'''''L, ,. .'~~:. " . ~,.'~; .- ,.,' . .,;.........:...~~.;ul. z:~_,~__.....;.:l-;}. " .~. ....:~~~:.. . CFJMA covenants to use its best efforts to commence and to complete construction, respectively, simultaneously wi th commencement and completion 01 construction by Borough Authority; CFJhlA co',enants to settle necessary financing contemplater' ".ereunder 10 be undertaken by it s; ,: "Iraneously with t: .., settlemenr of necessary financing by Borough Authority of construction contemplated hereunc<:' ~ ~ to be undertaken by Borough Authority; and CFJMA covenants that it will specify in ......iting such simultaneous settlement date. within 30 days after receipt of notice 01 ~'0 ~ ~ approval to award con~acts related to the Borough Joint Facilities has been received by Borough Authority from Environmental Protection Agency. United States of AmerIca. pursuant to the applicable Grant Agreement. 3. A. The parties hereto asree that the CFJMA Facilities, includins. inter alia, all future additions and improvements thereto, Initially will be operated, maintained and repaired by CFJMA, B. The Adjacent Municipalities each agree that to the eXlent required, In connection with financing to be undertaken by CFJMA to provide funds necessary for acquisition and construction of the CFJMA Facilities, they shall enler inlO any required instruments. Ihal they shall undertake necessary legal proceedinss with respect Ihereto, and thaI they shall adopt such ordinances, including a mandatory connection orclin.nc~, and take other required action. all to the extent permitted by law, 4. Borough Authority covenants to construct the Bo,'ough Joint Facilities, as defined in paragraph I hereof. which constitute part 01 the Additional 'L " Borough Facilities, in nccordance with plans and specifications prepared by the (\~ firm of Gannett Fleming Cord dry and Carpenter, Inc" Consulting Engineers, '''" ... , Harrisburg. Pennsylvania, and in ac,c:orda.nce with provisions hereof. or in accordance with such changes or modifications .. do not make substantial changes in such plans or specifications or as are approved by CFJMA. - 8- ~-'-l~;o.~- .......-~ . .'.'~" , . .,. ':Ji:~; 1M'. .~. ~..,-. 'M" ~,:,-,_.-" .:,...'"' "~'1-:!~ .-~.;>j ~'~<""7li~:#ii.;>',"",",~'~'~~ ....." ;;<..._~;:~~"o:..,r"'. 1 .....P~~~'- ~-.., . ',', ,",... ~ <. ~.' , , .;~ );1, r ,,t:;,..., ..",. ,~...~, . ~!, ':'..... _ft\O.':"'....~... ::;;; ;'.'M'lY~ ,;,,"\;":"I.~.,,; .:.~...~ .'OI~'1ll" -.::r..~, ~. ~'. I, Borough Authority covenant. to uae It. best efforts to commence and to complete conatrucUon, respectlvely, simultaneously with commencement and completion of construction by CFJMA; Borough Authority covenants to settle necessary ~ financing contemplated hereunder to be undertaken by It, simultane~usly with the ~ aettlement of nece.ury financing by CFJMA of construction contemplated hereunder to be undertaken by CFJMA: and Borough Authority covenants that it will specify In writing such slmultaneo~ settlement dates, within 30 days aIter receipt of notice of approval to award contracts, related to the CFJHA Joint Facilities, has been received by CF JMA from the Environmental Protection Agency, United Stat~s of America, pursuant to the applicable Grant Agreement. 5, The parties hereto agree that the Borough Facilities including, Inter alia, all future additions and improvements thereto, are and shall continue to be leased, as appropriate, by Borough Authority to the Borough, under an appro. priate agreement of lease, under which agreement of lease the Borough will, inter alia, operate, maintain and repair said facilities. The parties hereto agree that CFJMA Joint Facilities and CFJMA Facilities, including all future additions and improvements thereto. shall be constructed. operated, maintained and repaired by CFJMA. ao an operating Authority, during the term of this Joint Asreement, unless and until the Instruments transferring such CFJMA Facilities or CFJMA Joint Facilities provides for assumption of the obligations set forth in this Joint Agreement. 6, CFJHA covenants that upon receipt of a letter of Its consulting engineers .t.atins that the CFJMA Facilities or any portion thereof are sufficiently complete to receive and to transport sewage and wastes from the Borough Facilities or from residents ~( the Borough, as appropriate, It promptly will give notice to Borough Authority and the Borough of ouch fact and CFJMA. upon payment of all sums then due to CFJMA by Borough or BOl'"ough Authority under paragraph 14 hereof. will receive and transport sewage and wastes from the Borough Facilities or residents of the Borough, as appropriate, with the CFJMA Joint Facilities during the term of - 9 - . . "j~-,.', ~."":~:"~"',..~."-:'~,-'''''~',~'':"~',.':~:'''''':''' ",.,:..<:,~~.,,"",.~::: ~-:--"-:,----:- "'. ".,~ '. "",, "n- ;,'" I '. ." " .' r ,.... - ;'c:.:.....l~ '-=: '%I.. ~ ).;:.!.::,;:..;.' ~>:.i:<.,'",. ...\,~.~;:~~~ " .,' -.~.F/J;. '.' :~~:(::"'l,~; "'-,~19i ~..-.-.,., . , .' " . ...... this Joint Agreement In a manner approved by the Pennsylvania Department of Environmental Resources. and any other governmental body having jurisdiction, subject to the terms, conditions and limitations hereof, including Schedule "B" hereto . CF JMA agrees to advise Borough, in writin!:, the Iirst time the 110ws of sewage and w.stes from the Dorough Facilities are approxim.tely 85 percent of Borough's reserved capacity in the CFJI.IA Joint Facilities, When the average oI the actual measured daily flows or peak instantaneous 110ws, as applicable, from the Borough Facilities to the CFJHA Joint Facilities exceeds, lor a period of thirty consecutive clays, Borough's reserved capacity In the CFJMA Joint Facilities, CFJMA shall give Bnrough thirty days written notice to terminate such nows, and, thereafter, Borough shan pay to CFJJ,IA 115 percent of the charges imposed in accol'dance herewith, with respect to the transportation of such excess flows, for each such day, plus any fines levied by the Pennsylvania Department of Environmental Resources or any other governmental body due to such excess, until such time' as the average of the actual measured daily flows or peak instantaneous l1ow5, as applicable. of the Borough, over a period of sixty consecutive days, are reduced below the level of its reserved capacity in the CF JHA Joint Facilities, In the event such excess flows are not terminated within ninety days of receipt of notice of tf>rmination of C!xcess flows, as above provided. the charges for transportation of such excess flows shall be increased from 115 percent to 125 percent of the charges impnsed in accordance herewith for transportation services, for each day there.fter until said excess flows are terminated; Provided, however. acceptance of such surcharR~s shall not in any way restrict the right ofCFJ/.IA to exercise any remedy at law or in equity to restrain Borough and/or Borough Authority from exceedinr such reserved capacity . '- I, ,~, ,""'~'i~~"..' . " '. :. '~...... " . )',' : ',~~t~' "',' .,~.:,. ,.,' \.' .., " CFJ'l.1A grant~ to Borough Authority. the Borough, and ruidents of the Borough. as appropriate, during Ihe term of this Joint Agreement, the richt to connect the Borough Facililles and the Facilitie. of said re.idents to the CFJHA FaclUtles at the points shown on the plan attached hereto, made a part hereof and marked as Exhibit .C. or at such other point or points as shall be agreed upon by ~""':;"L' . .. .:......~.. .. .,:~~~. the partie. hereto, from lime to time in writing. .. .., -;',1-. 7, Borough Authority covenants that upon receipt of notice from . ; .,.,',l:'.-, . . '-."\~ l-'-"-;i"'\r-~r': ~'..,t'i''l.-', '" J ."~,; -'~--';~-'i- I":. '. " , " ""j, CFJMA slating that the CFJMA FacIlities are sufficiently complete 10 receIve and . .'.~ . :~ ',. 'w-~.''':~~ : . " transport sewage and wastes from the Borough Facilities and facilities of residents ~f\ . .::.:~< of the Borough, as appropriate it will cause the Additional Borough Facilities to 0"-' :'-;"Y be completed, if not theretofore completed, and will afford the consulting engineers of CFJMA reasonable opportunity to inspect the Additional Borough Facilities at the 60le expense of CFJMA. Upon receipt of notice from CFJUA to connect all or specified portions of Borough Facilities to the CFJMA Facilities. which notice to connect shall be given after Borough Authority's c"nsulting engineers shall have certified com- pletion thereof. Borough Authority covenants to cause the Borough Facilities to be connected and residents a! the Borough to connect. as appropriate. to the CFJMA -. Facilities. as set forth in Paragraph 6 hereof, such connections to be made within 30 days of receipt of such notice from CFJMA. or within such other time as is then prescribed by law, as appropriate, at the sole cost and expense of Borough Authority, or such residents of the Borough. as appropriate. Such connections shall be main- tained at the sole cost and expense of Borough Authority or the Eorough. as approprlate. 8. Borough Authority covenants that upon receipt of a leller of Its consulting engineers st.ting that the Borough Facilities or any portion thereof are sufficiently complete to receive. to ITanoport. to treat and to dispose of sewage and wastes from the CFJMA Facilities. or residents of the Adjacent Municipalities. as .ppropriate, it promptly will give nolice to CFJHA of such f.ct and BorouRh Authority or the Borough. as appropriate, lJpOn p.yment of .ll sums then due to BorouRh Authority by CF JMA under p....gr.ph 15 hereof. will receive, transport, treat and dispose of aewage and wutes from the CFJ1.IA Facilities, or residenu of the Adjacent - 11 - -~. . ._-~...::&:;;~ . . ~..- iI ..':'.' . .,..... ..~~,.. .. ....1. ;,~'." . MunlclpaUtie6, as appropriate, with the Borough Joint Facllilies, durlnc the term of this Joint Agreement, In a manner approved by the Pennsylvania Department of Environmental Resources, any other covernmental body ha"ingJurisdiclion, subject to the terms, condition. and limitations hereof, including Schedule "A" hereto . Borough agrees to advlle CFJHA, In writing, the first eme the flows of sewage and wastes from the CFJMA Facilities are approximately 85 percent of CFJMA '5 capacity In the Borough Joint Facllilies. When the average of the actual measured daily flows or peak instantaneous flows, as applicable. from the CFJMA Facilities to the Borough Joint Facilities exceeds, for a period of thirty consecutive days, CFJMA's reserved capacity in the Borough Joint Facilities, BoroulSh shall give CFJMA thirty days written notice to terminate such flows, and, thereafter, CFJMA shall pay to Borough. 115 percent of the charges imposed In accordance herewith, with respect 10 the transportation and treatment of such excess flows, for each such day. plus any fines levied by the Pennsylva..ia Depntment of Environll'ental Resources or any other governmental body due to such excess. until such time as lhe average of the actual measured daily flows or peak instantaneous flows. as appli- cable, of CFJMA , over a period of sixty consecutive days, are reduced below the level of its reserved eapacity in the Borough Joint Facilities. In the event such excess flows are not terminated within ninety clays of receipt of nolice of termination of excess flows. as above provided, the ch"rges for transportation and treatment of such excess f1ow~ shan be incrcased from 115 percent to 125 percent of the charges imposed in accordance herewith for transportation and treatment services, for each day there.fter until said excess flows are terminated; PrOVided however, acceptance of such surcharges shall not in any way restrict the right of Dorough to exercise any remedy at law 01' in equity to re.train CFJMA from exceeding such reserved capacity. - lZ - . ~-~~~..c;;; .' '.,'.' l.~r."::t',-'"C';, .--'--.': ~ -~."~' ~ . /": ,:'" : -'__'., "..," " .: ,":. :: ,':, ',_. _, '. " . I .... ."."" , ""1.'" '. Borough Authority grants to CFJHA. the Adjacent Municipalities and residents of the Adjacent Municipalities, as appropriate, during the term of this Joint Agr..~ment, the right to connect the CFJh'~ Facilities to thr. ',:rough Facilities ILt t}w points shown on the plan llltached h.:reto, marl. a par' .ol',of and muked ... Exhibit 'C. Or ILt auch other point or points as shall be agreed upon by the pllrtles hereto. from time II> lime. in writing. 9. CFJ'MA c:ovent.nta that upon receipt of notice from Borough Authority stating that the Borough Facilities are sufficiently complete 10 receive and transport sewage and wastes from the CFJUA or residents of the Adjacent Municipalities, as appropriate, it will cause the CFJMA FaciUties to be completed, if not theretofore completed, and will afford the consulting engineers of Borough Authority reasonable opportunity to inspect the CFJ'MA Facilities at the sole expense of Borough Authority. Upon receipt of notice from Borough Authority to connect all or specified portions of the CFJ'MA Facilities, to the Borough Facilities, which notice to connect shall be given after CF JW.A 's consulting engineers shall have certified completion, CF JMA covenants to cause said portion 0; the CF JMA Facilities to be connected, and residents of the Adjacent Municipalities to connect. os appro- priate, to the Dorough Facilitiea, ao aet forth in paragraph 8 hereof, such connections to be made within 30 days of receipt of such notice from Borough Authority, or within such other time as is then prescribed by law, as appropriate, at the sole cost and expense of CFJMA, or of auch residents of the Adjacent MunicipaUties, as appropriate. Such connections shall be maintained at the .ole cost and expense of CFJMA. 10. CFJW.A on the one hand, and Borough Authority, on the other hand, as appropriate, shall secure and deliver to the other at the respective settle- - 13 - --.. ' ....2~....;r.,. ..,.. , " ' -,,'L. . ,"'":'" . e'-'" ' '".~' "-.".; : ~.t'-':- -"" :r'~':_'_-'...".,- .:'~, ~\,' ':.~. ",' \,"', ,'. ,,'~ . '1'.,' ~.~~ , . "h.~~ . ments on financings referred to in paragraphs 2 and 4. a photostatic copy of any required peTmlt or approval from the Sanitary Water Board or the Pennsylvania Department of F.nvlronmental Resources and any other governmental regulatory . body having jurisdiction to construct the CFJMA Facilities and the Additional Borough Facilities. respectively. and to connect or interconnect the CFJMA Facilities and . the Borough Facilities in a manner so as to provide for the ultimate treatment and disposal o! sewage and wastes from the CFJMA Facilities by the Borough Facilities. 11. Borough Authority and the Borough covenant that all sewage and wastes collected by the Borough Facilities and discharged into the CFJHA Facilities or discharged by residents of the Borough into the CF JMA Facilities will be subject to the terms and conditions of this Joint Agreement, Borough Authority and Borough agree to prohibit the discharge of any sewage or wastes into the Borough Facilities which will subsequently enter the CFJMA Joint Facilities by any other municipality or any other municpality authority or by any other person, firm or corporation located outside the area of the Borough, which has not been granted prior written approval by CFJMA, with this prohibition not to apply to sewage and wastes discharged by Shippensburg State College; or to sewage and ",.astes discharged by the owner of property described and referred to in an Agreement. dated September 19. 1967. between the Borough and Borough Authority. on the one hand. and J .H. S. Development Corporation. on the other hand. 12. CF JMA covenants that all sewage and ,,'astes collected by the CFJMA Facilities and discharged into the Dorough Facilities or sewage and wastes discharged by residents of the Adjacent tlunicipalities into L"e Borough Facilities will be subject 10 the terms and conditions of this Joint Agreement. -14 - -- , ._.. '. " ..' . ' .._' '. '" ":, ", It ,- ~ ',' _ t'., ' . " ,~" '._'. -. I" f~~.:.2l....,. " ,~~ ' ..,...,.-...."."" .....'....- !"i:~.~!:~;e.~. , . ~ " '..,' ..' . .... '. . CFJMA agrees to prohibit the discharge of any sewage and wastes into the CFJMA Faclllties which subsequently enter the Borough Joint Facilities by any other municipo. ., or any other m,,"icipallty authori,! or by any other orson, firm or corporation located outside the area of the Adjacent Municipalities, which h.s not been ll'"anted prior written approval by Borough. 13. CFJMA, on the one hand, and Borough Authority and the Borough, on the other hand, as appropriate, covelUont that no roof drainage water, storm water, excessive ground water, infiltration. surface drainage or building foundation drainage shall be discharged from the CFJMA Facilities into the Borough Facilities or from the Borough Facilities into CFJMA Facilities. as appropriate. either directly or indirectly, and that no sewage or waste shall be discharged from the Borough Facilities into the CFJMA Facilities or from the CFJMA Facilities into the Borough Facilities. as appro- pdate. of the type prohibited and described in Exhibit "D" attached hereto and made part hereof. 14. The parties agree that in consideration for CFJMA making the CFJHA Joint Facilities available for use by Borough Authority and the Borough. Borough Authority will make a capital contribution to CF JMA. which capital con- tribution shall be calculated in the manner hereinafter set forth. The parties agree th.t the facilities constituting the CFJMA Joint Facilities have been initially designed with varying design flow and/or pollutant load capacities initidly allocated for CF JMA, which varying design flow .nd/or pollutant load capacities are set forth in Exhibit "B", anached hereto and made part hereof. The capital contribution to be m~de by Dorough Authority to CFJMA. applicable !o the CFn.1A Joint Facilities shall be calculated in the following manner: A. The capital cost of each facility cOl1stituting a part of the CFJMA Joint Facilities shown on Exhibit "B". attributable to Borough Authority and the Borough. shall be calculated sep.rately in the following manner: - 15 - ~-r:-,~~:.J'-~ ..... . ,: ," ~'...' ';~' . ", .'. ,.-:~- 1,..1 ", 't>' " '_~ ",: ~'., I"~ ,-',-',' . .':":. '. ","'. ""{'. " ,. ~ ", -".f ~~ '~>~.,.:,;:f.::....f'"; (1) CFJfdA. subject to review by Borough Authority. shall determine the estimated Cost of Con- struction of the facilities constituting pari of the CF JMA Joint Facilities. as shown on Exhibit "B". under con- .' .~:. ' :~7~~ sideration. :"':".' (Z) The ratio which the design flow and/or .' pollutant load capacity of such facility constituting a part of the CFJMA Joint Faelllties under consideration reserved {or Borough Authority and the Borough bears to the total design flow and/or pollutant load capacity of such facility constituting a part of the CFJMA Joint Facilities under consideration shall be determined and shall be applied to the estimated Cost of Construction of such facility constituting a part of the CF.P..IA Joint Facilities under consideration determined under (1) above, The result shall equal the capital cost of the facility constituting a part of the CFJMA Joint Facilities under consideration attributable to Borough Authority and the Borough; Pro- vided. however. that such amount ohall be subject to adjustment, 8S appropriate. a5 hereinafter provided. B. The capital cost of all fecl!ities constituting the CFJMA Joint Facilities attributable to Borough Authority and the Borough. determined separately under 5ubparagraph A above. shall be added and the total shall equal the capital contribution to be made by Borough Authority to CFJMA. applicable to the CFJMA Joint Facilities . - 16- .', ..' ..' "~.",:,'-'-'-.'..'.~:.:J:,.,..,,~,:""'::' ~""'.' :../','" ..",'.:.' .-,-:~._," .... ,-~".,- In the event the United States of America or the Commonwealth of Penn- sylvania. acting through any agency or department. shall make a grant to CF JHA for application {or and toward payment o{ a portion of the Costs of Construction of the CFJMA Facllitir, , or CFJMA shall collect liquidated damages or other damages for delaying completion of construction under any contract for construction of the CF JMA Joint Facilities. CFJMA, subject to review and approval by Borough Authority. shall determine the portion. if any. o{ such grant or liquidated damages or other damages attributnble to each facility constituting a part of the CFJMA Joint Facilities, as shown on Exhibit "5", The portion. if any. of such Brant or liquidated damages or other damages attributnble to the facility constituting a part of the CFJHA Joint Facilities under consideration shall be multiplied by the ratio which the desiGn flow and/or pollutnnt load capacity of such facility reserved for Borough Authority and the BOl'ou~h bears to the total design flow and/or pollutant load capacity of such facility and the result shall be deducted from the capital cost of such facility under consideration attributable to Borough Authority and the Borough. as calculated under subparagraph A of this paragraph 14. it being the intent of the parties that Borough Authority shall receive a credit for Its proportional share of any grant or liquidated damages or other dama~es for delay in completion of construction received by CFJMA attributable to the facility constituting a part of the CFJMA Joint Facilities under consideration, 15. The parties agree that in consideration {or Borough Authority makin!, the Borough Joint Facilities available for use by CFJMA. CFJHA will make a capital contribution to Borough Authority, which capital contribution shall be calculated in the manner hereinafter set forth, The parties agree thaI the facilities constitutinG the Borough Joint Facilities have been initially designed with varying design flow and/or pollulantload capacities allocated for CFJMA and the Adjacent MuniCIpality and with varying design flow and/or pollutant lo.d capacities initially allocated for Borough Authority ,md the Dorough, which varying design flow and/or pollutant load capacities are set forth in Exhibit "A". attached herem and made a part hereof. The capital contributions to be made by CFJHA applicable m the Borough Joint Facilities shall b" calculated in th" follov.~n!! mann.., "-- ,--~ - ~- ;-'-{~....;:,' ..... " - ,': ,...: ..':.1'\0..'..'..."..-...., ~ . ",1'.. ~> ~:I;.-' ",.">t -,'.:': -~ ..-.,: .' ,- '7"~-"~' r,';' /~. '. ~" :-: I'" .' ;;IIi~'r.'; , ';'-'h""t? ";".~4.~ l-..~~' ~-,/.'A.~. ,'. ~.:-:..;. .!:'~' .......... ~ M>!;t<< '1A~ . ....... fi.:, , ~>~'!:t~.#~~ .' .:,." ~~ A. The capital cost of each facl1lty constituting a part o{ the Borough Joint Facilities shown on Exhibit "A". attributable to CFJMA and the Adjacent Municipalities. shall be calculated Depar",..ly in the follow\r.~ manner: (1) The costs of the Existing Borough Facilities constituting part of the Borough Joint Facilities attributable to CFJMA and the Adjacent Municipalities and the amount to be paid by CF JMA (the cost) {or the {aciUtie. to be trans. {erred to CF JMA under paragraph 19 shall be determined and established as set forth in Exhibit "An hereto. (2) Borough Authority. subJect to review by CFJMA. shall determine the estimated Costs o{ Construction o{ the Additional Borough Facilities constituting a part of the Borough Joint Facilities. as shown on Exhibit "A n . under conDlderation. (3) The ratio which the design flow and/or pollutant load capacity oi such Additional Borough Facilities constituting a part of the Borough Joint Facilities under consideration reserved for CF JMA bears to the total design flow and/or pollutant load capacity of such Additional Borough Facilities constituting a part of the Borough Joint Facilities under consideration shall be determined and shall be appUed to the estimated Cost of Construction of such facility constituting a part of the Borough Joint Facilities under consideration determined under (2) above, The result shall equal the capital cost of the Additional Borough Facilities constituting a part of the Borough Joint Facilities attributable to CFJMA: Pro. - 18. ",,;; . , " ~ '. '. ;, ", .: . . ,'. " " ..., _ : ~ ,"., ',' ~ :' I,' I ~.'." .-, '.' :' ,': 'l' \, ' ......."'. ;-J'/~ -.,. -. .~ -. vided. however. that such amount shall be subject to ';~~ adjustment. as appropriate. as hereinafter provided, B. The capital costa of all facilities constituting the Borough Join! ;:'acllities attributable to CFJMA detc'mined separateb ..,der subparagraph A above, shall be added and the tolal shan e 01 the capital contribution to be made by CFJHA to Borough Authority appli- cable to th" Borough Joint Fllcllitl.es. In the eVent the United States of America or the Commonwealth of Pennsylvania. acting through any agency or department. shall make a grant to Borough Authority for application for and toward payment of a portion of lhe Costs of Construction of the Borough Joint Faclllties. or the costs of Borough Joint Fncilities governed by subparagraph A (1) above. or Borough Authority shall collect liquidated damages under any contract for construction of the Borough Joint Facilities. Borough Authority, subject to review and approval by CFJMA. shall determine the portion. if any. of such grant or liquidated damages attributable to each facility constituting a part of the Borough Joint Facilities. as shown on Exhibit "A". The pDrtion, if any, of sueh grant Dr liquidated damages attributable to the facility constituting a part of the Borough Joint Facilities under consideration shall be multiplied by the ratio which the design flow and/or pollutant load capacity of such facUity reserved (or CF JM." and the Adjacent Municipalities bears l<> the total design flow and/or pollutant load capacity of such facility and the result shall be deducted irom the capital cost of such facllity under consideration attributable l<> CFJMA and the Adjacent Uunicipaiities, as calculated under subparagraph A of this paragraph 15. it being the intent o{ the puties that CF JMA shall receive a credit for its proportional share of any grant or liquidated damages received by Borough Authority attributable to the facility constitutng a part of the Borough Joint Facilities under consideration. 16. The capital contributions l<> be made by Borough Authority to CFJMA and by CFJMA to Borough Authority, respeclively, under paragraph 14 and - 19 - . ~.. . . . ~ ....r-.,~i..:.:r.~",_ ........ , . T " . ~ -.., - -. , ) '. . - . ~ ' \, _ ': ." - '.... ,~,' - _, '. " '. ".,' . _' . .'" " " '. '., " . ~.:.';~~....J '."";~}t;il ,r~~.J;.~'5~!~;~ '':.'. ~.t.",....~.. ~~~,,~ par"Il1'''ph ! 5, respectively, shall be payable in full on the mutually agreed upon settlement date, determined under p"ragraphs Z and 4 hereof. on which necessar)' financing of both CF.Th.fA and Borough Authority is settled and closed, .u~ject to final adjustment' as hereinafter provided. Neithel ."'arty shall be rea ,e.; to give "notice to proceed" to its contractors for construction contemplated hereunder until sums initially payable as contemplated by this paragraph sh"U have been paid. 17. The parties Bll1'ee that the capital contributions to be made pur- suant to paragraph 14 and paragraph IS, respectively, shall be subject to final adjustment within 30 days .fter receipt by CFJ!-.-IA or Borough Authorit)', as applicable, of a certificate of its consulting engineers certifying that the CFJUA Facilities or the Addition,,1 Borough Facilities, as applicable, is complete, all Costs of Construction can be ascertained and, if applicable, that final settlement has been made by CFJI.\A or Borough Authority, as applicable, with respect to any grant and Ilquidated clamages received by such party for appllcation for and toward payment of a portion of the costs and expenses of construction of the CF.Tl.1A Facilities or the Additional Borough Facilities, as applicable, Such adjustment shall be macle by recomputing, in accordance with the principles set forth in paragraph 14 and paragraph 15 hereof, as applicable, the amount of the capital contribution attributable to CFJI.fA Joint Facilities or the Borough Joint Facilities, as applicable, in each instance using actual Costs of Construction, as certified by consulting engineers of the party under consideration. Within 30 days a!ler such final adjustment the party required to make the capital contribution by either paragraph 14 or paragraph 15, as applicable, shall make the approp,.,ate payment of the balance of the capital contribution due to the party entitled to receiv~ the same under paragraph 15, as applicable, or, if appropriote, l.he party which has received a capital contribution under either paragraph 14 or paragraph 15, as applicable, within 30 days after final adjustment sholl make the appropriate refund of any overpayment of a capital contribution theretofore made purouant to paragraph 14 or paral>raph 15, as applicable, to the party theretofore making auch o_erpayment, - 20 - -. ;-r^'/~.: , '../",..._-....,.~ ,~"','-. " . ".4:, :l-,..:,: ' r,\. -'. :.' ::...,..)~.,. :"r '. ',." . ...~ 18. The parties recognhe that because of the respective payments on account of capital costs to be made pursuant to paragraph 14 and paragraph 15. respectively, Borough Authority and the Borough are equitably and justly entitled tD individual t,'.,alment with respect to the annual chrge which shall to., paid to CFJ'.i.... for use by Borough Authority or the Borough. as appropriate. of the 1..'J~lA Joint Facilities; and CFJMA is equitably and Justly entitled to indh'idualtreatment with respect tD the annual charge which shall be paid to Borough Authority or the Borough, as appropriate. for USe by CFJMA of the Borough Joint Facilities. The parties agree that the annual charges to Borough Authority and the Borough. as appropriate. for use of the CFJj'..~A Joint Facilities. and the annual charges to CFJMA for Use of the Borough Joint Facilities (so long as sewage and Wastes from the party under consideration shall not exceed, in volume. strength or character the reserved capacity for the facility under consideration allocated to the party under consideration. as set forth in Exhibit .A.. Exhibit "B" or Exhibit "D". as applicable), shall be determined within 60 days after the close of each Fiscal Year. in accordance wi th the following: A. Borough Authority and Borough. on the one hand. and CFJMA. on the other hand. as appropriate. shall determine the total actual costa and expenses of operation. maintenance and repairs of each facility constituting the Borough Joint Facilities as set forth In Exhibit ....", or each facility constituting the CFJMA Joint Facilities as set forth in EyJ,ibit .B". together with any improvements and addltions thereto made, from time to time. in accordance wlth provisions herecf. .. applicable. during the Fiscal Year under consideration. Without limiting the generality of the foregOing. such cost. and expenses shall include. in each case. the following: (I) salaries and wages of operating and supervisory personnel. - 21 - _.._.~--~- - ;-'-'I.~~_. ..' '. . -::or.-,. I ,-. _. ~: -. - - - _ . ':- '.. . " ,,' ,_'CI ~. ; ~ .~, " , ", ' . ',':, , . . . ~ .~ ............... ineluding. social seeurity and eustomary employee fringe benefits: (2) power, fuel oil, water and other utilities; (3) costs of ehemieals and laboratory supplies and other materials and supplies; (4) costs of . . ..~ . ',.; " insurance and inspection and taxes, if any: (5) eosts of equipment and ",':'.'. supplies: (6) eosts of equipment maintenance, including mc,' ,'ehicle maintenanee, gasoline and oil; (7) costs of ordin"ry or routine repairs and replaeement: (8) costs of engineering, legal and accounting serviees and all contraet serviees; (9) general administrative eosts and expenses; Provided, however, that in the ease of the foregoing the Same shall be in eluded only to the extent that the same relates to the operation, maintenanee and repair of said facility; and Further, Provided, however, said total east and expenses shall not induele the following: (a) any amount attributable to debt serviee requirements with respeet to indebtedness; (b) any amount allributable to depreciation: (c) billing costs; and (d) administrative eosts and other costs which arc not directly attributable to the faeilities involved in such determina:ion. B. The amount, if any, reeeived by CFJMA, en the one hand, or by Borough Authority or the Borough, as applieable, on the other hand, during the Fiscal Ye"r under consideration, from any agency, department or body of the Commonwealth of Pennsylvania or the United States of America from any part pursuant to provisions of and Grant Agreement on "ccount of or available for costs of operating, repairing, maintaining and/or replacing the facilities constituting the CFJHA Joint FacHities or the Borough Joint Facilities, as applicable, under consideration shall be deducted from the total costs and expen.es determined in sub- paragraph ,\ above to determine the net costs and expenses of operation. maintenanee and repair of the facilities under con- sideration durin;: the Fiscal Year under eonsideratlon. - 22 - r...,r''F~--.:~. ",':,' _:::'Ii71"y':.-.--'-'."----';:-...."""..':".~--..-^, _~':',~, . '.,': ,"'~' ,>' .'.' '".", '. p;", : .' . Samples of sewage and wastes and/or data from the mete:- st~tions may be obtained and analyzed by any party at any time in order to insure compliance with the terms of this Joint Agreement. Each party hereto shall have the right to have a representative present when such samples and/or data are obtainor' :.ut such right shall not limit any party's right of access to the meter stations to obtam such samples and/or data. For the purpose of determining and calculating the volume andlor character of sewage and wastes discharged from each party's facilities into facilities of the other. the following methods shall be used: (i) All sewage metering devices shall be inspected. calibrated and tested for accuracy in accordance with the manufacturer's standards. at least quarterly by the owner thereof and reports of such inspection shall be made direclly to Borough ,md CFJMA. The cost of such inspection and the cost of any repair or replacement shall be borne by the party or parties whose flows are measured hereunder. in proportion to flows; (ij) In the case of missing flow records due to faulty meter registration or otherwise. an estimate of flows will be made. for purpose of determining volume of sewage and wastes discharged and this estimate will be ba"e::l on an evaluation of past flow records as applied to present conditions or in such other manner and by such other method as the receiving parly may prescribe and, in all events, as reviewed and approved by the receiving parly and the party whose floVJS are in question; .nd (iil) Flow records and metering device installations of one parly hereto shall be made available and accessible to any other party hereto upon request therefor, The record of sewage and wllstes flows through metering devices operated and maintained by one parlY will be forwarded to any other party .."questing the same on or before I.he fifteenth day of the first month of each calendar quarter showing the !Dtal and daily sewage and wastes flows discharged during the previous quarler. All faulty meters or measuring devices. promptly. shall be repaired or restored to pro?er measuring capability by the owner thereor. - Z4 - - - -- . " ", ' .~', . :..' ." '"1' '-~~""": -. ': . " .'. ~ ": .... "'. ," . I " ',.... ". . , . , - .:.,.. .... ~-:!-~ For purpose of this Joint Agreement the gallons of sew.~e and wastes .v..(;""~t"do:. r::!.:;;..:~~~: .. .p......... discharged by CFJMA Facilities to Borough Facilities or by Borough Facilities to CFJMA Facillties. as applicable. shall be determined by sewer meters, required hereby, locaterl in main lines measuring sewage and wastes to facil1t:. under con- sideration, or in the event no sewer meter is required hereby relative to a portion of sewage and wastes so discharged, then as follows: A. Gallons of sewage and wastes discharged by Com- mercial Establishments and Industrial Establishrr,ents shall be measured by the volume of sewage or. in lieu thereof. by the volume of water used by said Commercial Establishment. or Industrial Establishment less any water not discharged to the CFJl>lA Facilities or to the Eorough Facilities. as applicable; B, Gallons of sewage and wastes discharged by Residences. if served by metered wale,' service. shall be measured by the volume of water used by s~id residence, less ilnY water not discharged to the CFJMA Facilities or to the Dorough Facilities, as applicable, or if not served by metered water service. on the basis of 350 gallons per day per R"sidence; and C, Gallons of sewage and wastes discharged by users, persons, OT parties other than Comm~rcial Establishment, Industrial Establishment or Residences. shall be measured by the volume of water used by said us"r, person or party, less any W~lcr not discharged to th" CF JMA Facilities or to the Borough Facili ties. as applicable; D, The sum of gallons of all users discharging s"walle and wastes to a facility under consideration, determined. as nbove provided. in A. nand C, shall be aggregated to determine the volume in I!allons of sewage and wastes dlscharg"d to a facility under consideration, v ~ . ...-' . .... ..,......., .__~....x :x=_.._,. , " ,.., ,"".....~-: ..~T'-\,..:,'~,.~ ~:"''''. r~_".",~.~.,,,..-:L-:;-.=--.::...-~.:'...~---:--;.';i,-"...-~l..~...:"~~' ...~., ,:' ...., ~~ ," ',t Sewer meters shall be installed to measure sewage and wastes governed by this Joint Agreement at points of connection shown on Exhibit "C" or at such additional points of connection, in each case, through which there shall be discharged sewage and wastes in excess of 100,000 gallons per day (30 day average), at the cost of the party so discharging. The parties required to pay the same shall make payments on account of sums due to parties entiUed to receive the same, pursuant to this paragraph 18, far each Fiscal Year, on or before April 15, July 15, October 15 and January lS of each Fiscal Yeu, in installments; together with a penalty of 5\ of the sum due, if any such installment is not paid within 30 days after the date due. The installments made, as above provided shall be made on the basis of an estimate made by the consulting engineer of the party to which payment Is due, which estimates shall be made and furnished to the other party not later than 30 days prior to the beglrming of each Fiscal Year, Within the time specified above actual costs of operation, maintenance and repair of the facilities under consideration payable by one party to the other shall be determined and then an additional payment or rebate, as 'ppUcable, fihall be made representing the difference or excess, as appUcable, of the total estima ted annual payments over or under the actual annual payment due and payable; and, if any such required payment shall not be paid within 30 days after written notice is given of such determination that same Is due a penalty of 5\ of the unpaid amou.'1t shall also be paid. 19. Borough and Borough Authority agree that at the time of payment of the capital contribution9 to be made pursuant to paragraph 15 Borough Authority "nd the Borough shall transfer tiUe to the lewer collection lines described In Exhibit "C" as "Existing Shippensburg Borough Authority Sewers to be transferred to CFJMA" , and CFJMA, thereafter shall have the right to render service to to'>e properti.s or customers connected thereto and thereafter which can be served thereby. - 2&- ..- - _. ~~');';",::::-'-':a:-~~n;""''' , .. ,\ I_).,'::~: .,.,':...."r,..-~_.;.::-_7;~--t- --;:.;;~~.:.--"^.7'+:,".::!~-:~.-'..,.~:-~~:;...;._~.-.-'r"-.~~. ~?"~,'. ' . .r" ,P.....: -::::'.r;.~-;. .::.";: 20. The appropriate parties shall keep necessary records and account; .K~~ ....;,:.=-~ ~,....- .... ..... ......-...,.. with respect to customers served by and cosl$ and expenses of operation, maintenance ~. '~. and repdr of the CFJMA Facilities, Including the CFJMA Joint Facllities and the Borough Facillties, including the Borough Joint Faclllties, so that de' '~inations which shall be necessary under paragraph 18 can be made promptly, at the required times, with fairneas and accuracy. Such records and accounts shall be open to inspection by the parties upon reasonable notice. at reasonable times. Certified audits of such'records and accounts shall be made available to the parties annuallY, 21. Any other provisions hereof to the contrary notwithstanding. CF JMA and the Borough and Borough A uthorl ty, as applicable, covenant and agree to Impose, collect and pay over any rates, charges. tariffs. or impositions required to be Imposed and collected from any person or party discharging sewage and wastes directly or Indirectly, to any fadUty of CFJMA, the Borough or Borough Authority, pursuant to provisions of any Grant Agreement: CFJMA and the Borough Authority each assumes, with respect to Its customers, the obligation to impose, collect and pay over such sums to the extent permitted and in the manner required by any Grant . Agreement; and each agrees to maintain a separate set of accounts with respect to said sums and shall quarterly remit such sums one to the other. The obligations assumed by the parties pursuant to this Paragraph 21, shall include obligations under any Grant Agreement to comply with regulations of the Environmental Protection Agency, United States of America. relating to .User Charges and Industrial Costs Recovery, published in the Federal Register, Hay 2, 1973, and Federal pre-treatment standards. or any subsequent regulations relating to the same subject matter. CFJMA and Borough and Borough Authority agree to comply with rules and regulations of the other Implementing the requirement. referred to In this Paragraph 21, including tho.e applicable to parties which are discharginil or ,,~ll discharge sewage wastes reason.bly classified u "industrial wastes". - 27- .;..r...:L~,,,_',~J , "..,.... :,!..........:l.--~,~."'~.."J,~:I...T.~ ".-.\:~~:'_~,-_N""'''',:-: ,:,~.,.",:,,~-:;,-~.~,~,.-.''''''l;::-'~~:~.:-.-7~,_ ~~ '" :~. ..',,' :.:..:. )''''','> 22. CFJHA agrees to comply with requirements of statutes, rules and regulation"- relating to Borough Authority's or ",e Borough's "N.-, ".1 Pollutant Discharge Elimmation Perm!t" and the obl!gation of the Borough and l..'rough AUlho"II\ thereunder, which relate to customerll of CFJMA. 23. Each of the parties agrees to ad,:!pt such ordinances md/or resolutions which are necessary to impose any rates, charges. tariffs or requirements UpOi' any of the customers of such party which are required to be imposed on such customer by provisions hereof, or which relate to obligations assumed by any of the parties hereunder. 24. A. In. t..'"lc event the Commonw~alth, the United States of America or any other governmental entity having jurisdiction, acting through any agency of any such gover""'~ntal entity. should require additional treatment or Intenslficatlon \ . of. or other change in trcatment of the waste watcr discharge of the llorough Joint Facilities. Including the Additional Borough Facilities. or in the event that major improvement Cas distinguished from items which would constitute ordinary maintenance in accordance with sound and generally accepted engineering or accounting practices) or any repair or replacement or reconstruction should become neceasary, with respect to the Borough Joint Facilities or the CFJI.!A Joint Facilities, in the opinion of the Borough Authority and the Borough. or In the opinion of CFJMA, as applicable, Borough Authority or CI'JMA, as applicable, shall construct such necessary Improve- ments and finance thc same as soon as Is possible and practical, and CFJM^ Or Borou~h and Borough Authority shall share in net costs of such Improvements, .fler applicatlon of available grants, reserves, earned Interest or other avallable fund.. on a bul. which would be a weighted percentage, giving effect to the direct ra.tio which the dealan capadly of the improvemen.. or additions at the time applicable or attributable to - 28- ,- ". .' ,.,~,,~~.-. --.--";'\ '~:~ -".~-~) 'I . -'-!~~~~-"'-.:.-""-:'l'~,~~\^.r-",~ _c.'. ,_I '~.. '~/.: ',' ,." .' ..,. "~'." . CFJMA or Borough and Borough Authority requirements bears to the te>to.l design capacity of the improvements or additions to the Boroush Joint Facilltirs or the CFJMA Joint FacilitieF. a3 ul'?Ucable. B. 1f expansion of the IOtal design capacity of the Borough Joint Facilities, including the sewage treatment plant or the CFJMA Joint Facilities becomes necessary, from time to time, costs of such e.:panslon shall be allocated as follows: (1) If such construction, reconstruction, repairs or improvements are necessitated solely by Borough requirements, the Borough Authority and the Borough shall be responsible, solely, for such costs and shall make appropriate provisions for payment. (Z) If such construction, reconstruction, repairs or improvements are necessitated solely by CFJMA require- ments, CFJMA shall be respon"ible. solely. for such costs and shull make appropriate provisions for payment. (3) 1f such construction, reconstruction, repairs or improvements should be necessitated jointly by Borough requirements and CFJMA requirements. then CFJMA shall participate in such costs in the direct ratio which the increased design capacity or existing reserved capacity. as applicable. of the various parts of the Facilities Involved, including sewage treatment facilities, if applicable, to be provided to treat CFJMA wastes or the Borough and Dorough Authority. as applicable, bears to the total increllSed design capacity or existing reserved capacity, as applicable, in the - Z9- , ~-, ;"''"'''1'~ ' .. .iMC ;; _.-"'t1'.~~- -- - ~ ~ " . . ,:.,' ~':.'~' . .'~' .....: ,->~I";-:'t''J;: ,:"", '.' ", ~ , -< ,..'. ',' _,: .~, '.' t ~,'.~ 'j;!F~'.:..', . '/ . ';.." Facilities Involved, and CFJMA and Borough and Borough Authority shall make appropriate provisions for payment. C. P'l'~vision:; for p~,ym(;nt under this p;lr:graph Z~ . :'1.11 be made by CFJMA or by Borough and norough Authority (1) far payments made for and toward expenditures by such party for its own requirements. in a manner determined soldy by it; (2) for payments made for and toward expenditures made by the other party for the former's requirements payable at the option of the payor either (.) in cash pay.bl,' at the time "notice to proceed" with the work is given to contrsctors; or (b) by payin" an amount equal to debt service requirements plus applicable "coverage" attributable to such net costs to the party making the initial expenditure for such ne' co&t., payshl, In the manner specified by the party to receive such payments. 25. Upon completion of construction of the CFJMA Facilities, CFJMA shall provide Borough Authority and the Borough with a complete .et of as-built drawings of the CFJMA Facl1lties. showing complete informsHon .. to 10caUo"., grade and depth of lines, location of manholes and other similar relevant InfornlOllon, Upon completion of the Additional Borough Facilities, Borough Authority shall provide CFJMA with a complete set of as-built drawings of the Borough Joint Facilities showing complete information as to location. Rrade and depth of lines, location of manholes and other similar rel~vant information, 26, Borough A uthority and the Borough gunt. to CF JI,:A and the Adjacent Municipalities, respectively. and their respective succenors and ..alllns, all easements. rights of way and other riflhts neces..ry and desirable in, along over and under streets, roads. lanes. courls, public square.. alleys and highways of the Borough. Borough Authority and other properties of Borough Authority and the - 30 - '.",," , r I I , , . ,> ~ '-"~'-'-_.f .' :~.., ,....,'.......':_ ' ." . :.o.::....:..-~', 1 . . . ,~... r~'''';~ -".;~~~ . .: ". ~, .. Borough and in. along, over or under which the CFJMA Facilities will be constructed as shown on the plan attached hereto, made a part hereof and marked as Exhibit "C', together with free ingress, egress and regress therein and thereto. along with other persons having ~;'lterests or right!"'. therein, for US!! ir\ connection witl. ;.nstructin~, replacing, repairing, altering. maintaining and operating the CFJ:..JA:."cilities. CFJMA shall repair or restore such streets. roads. lanes. courts. public squares. alleys and highways and properties of Borough Authority and the Borough in accordance with the rules and regulations of Borough and/or Dorough Authority. and shall maintain said streets. roads, lanes, courts, public squares, alleys and hiGhways and properties for a period of two (2) years after such repair or restoration. 27. CFJMA and each of the Adjacent Municipalities grants to Borough Authority and the Borough, respectively, and their respective successors and assigns, all easements. rights of way and other rights necessary and desirable in, along,. over and under streets, roads, lanes, courts, public squares, alleys and highways and other properties of CF Jt..'.A and each of the Adjacent Municipalities in, along, over or under which the Borough Facilities will be constructed as shown on the plan attached hereto, made a part hereof and marked as Exhibit "C", together with fTee ingress, egress and regress therein and thereto. along with other persons having interests or rights therein, for use in connection with constructing. replacing, repairing. altering, maintaining and operating the Borough Facilities, Borough Authority or the Borough. as appropriate, shall repair or restore such streets, roads, lanes, courts, public squares, alleys and highways and properties of CFJHA or the Adjacent Municipalities in accordarlCe wit." rules and regulations of CFJMA and the Adjacent Municipalities, and shall maintain such streets, roads, lanes, courts, public squares, alleys and highways and properties for a period of two (2) years after such repair or restoration. 28. CFJHA or Borough Authority and the Borough, as applicable agree to provide Borough or Borough Authority, as appropriate. or CFJI.lA, as applicable, with access at necessary and reasonable times (including accelS for waste ",e...ure- .' -.:: ..'. -. . . '. ' '. '. ::. .' '.:'. '. .: ,..,.. ...... ..... '. . . .., . , , . {, . . " ' . . ~ ^ ' , ... I ',' ".' . ',. ..'.' , . ment and sampling) to the CFJMA Facilities, or the Borough Faclllti"s. as applicable, inclucllng manholes preceding points of connection of either system to the other. in order to assure eompliance with the terms of this Joint Agreement, The appropriate puties agree to furnish or to cause to be furnished to the other appropriate parties all information deemed necessary for determination of the character. strength and volume of sewage and wastes discharged into the Borough Facilities or the CFJMA Facilities, as applicable. 29. CF JMA covenants and agrees that they will: A. Maintain the CFJHA Facilities in good repair, working order and conditions; B. Continuously operate the same; C. From time to time make all necessary repairs. renewals and replacements thereof and all necessary improvements thereto in order to maintain adequate service; D, Comply with all present and future laws, rules. regulations, permits. orders and requirements lawfully made by the United States of America or the Commonwealth or any agency of either or any oth"r governmental body having jursidiction; and E, Insur" th" CFJ/l1A Joint Facilities with a r".pansible company 01" companIes authorh~d or qualified to do business in the Commonwealth insuring against loss or damage by multiple peril. including Dood insurance. and against such other risks and in such amounts as usually are carried upon or with respect to like property in the Commonwealth, Immediately afler any loss or damage 10 the CFJMA Joint Facilities CFJMA will commence and duly prosecute. as 500n as practicable, th~ reconstruction. repair or replacements of Ihe damaged or de..troyed portion of said facilities. - 3Z - ._.. '-f'"l~;..z;' . \0-, ."'" "'. - . -. .' ' - " - -.. ~c . '. -. - ,,'- > ! ','. - '. < . !:. ~ .' t', " .' . ,. ,_..... . ....... ";' 30. Borough Authority and the Borough. as appropriate, covenant and agree that they will: A. Maintain the Borough Facilities In good repair. working order and condition; B. Continuously operate the same; C. From time to time make all necessary repairs. renewals and replacements thereof and all Improvements thereto In order to maintain adequate service; D. Comply with all present and future laws. rules. regulations, perml ts. orders and requirements lawfully made by the United States of America or the Commonwealth or any agency of either or any other governmental body having jurisdiction; and E. Insure the Borough Joint Facilities with a responsible company or companies authorized or qualified to do business in the Commonwealth insuring against loss or damage by fire and multiple peril, including flood insurance, and against such other risks and in such amounts as usually are carried upon or with respect to like property in the Commonwealth. Immediately after any loss or damage to the Borough Joint Facilities, Dorough and Borough Authorlly will commence and duly prosecute, as soon as practicable, the reconstruction, repair or replacement of the damaged or destroyed portion of said facilities. 31. CFJI1A (with the CFJMA Facilities which are owned exclusively by it) or Borough Authority and the Borough (with the Borough Facilities. which are owned e"elusively by them). as applicable, may enter into any new or additional agreement concerning collection. transportation, treatment or disposal b)' CFJMA or Borough Authority or the Borough, as appropriate, as applicable, with faclliUes owned - 33 - .,,-r.... , ',', ,!(. .,,:; .-~ " '-.' ~.. ,'., '-, .. : ,. \ ~-. :': \ ,"'. ~. , : ,,: - ': ....' ,'~". "," ..-' ." .." - . ..::.. " .exclusively. (as described in appropriate definitions contained in paragraph 1). by the party rendering such service. of sewage and wastes from any other municipality; Provided, however that no such n"w or additional a;v~ement shall ill',} ~ the ability of CFJMA or Borough Authority or the Borough. as appropriate. 10 rc"O,ve and to transport. as applicable. sewage and wa"tes in accordance with the terms of this Joint Agreemer.!; nnd Further, provided. however that any such new or addition:.} &3ree- ment shall be subject to the provisions of paragraphs 11 and lZ hereof. 3Z. The parties ngr~e that CFJMA shall have the rig:'t to make and collect sewer assessments against properties not heretofore served, tappinll (or connection) fees. allainst properties not heretofore served, and sewer rentals. n~es and charges and other charges permitted by law against or from any and all proper.ies whether heretofore or hereafter served by the Borou~h Facilities and service rendered thereby ngainst or to, ns approprinte, prop~rties located i" the Adjacent Municipalities and residents of the Adjacent Municipalities, as appropriate. benc!ited or served, as appropriate, by the Borough Joint Facilltie~; exce?tin~ and excludinll. however. property and premises. owned from time to time. by Ille Corr.monwealth. constituting all or part of. as applicable. an institution presently known as Shippensburg State College, which property and premises sh311 contInue' to be provided with sewer service hy Borough and Borough Authority; and further excepting and excluding, however, property governed by an Agreement, dated September 19, 1967. between the Dorough and Borough Authority. on the one hand. and J ,M, S. Development Corporation, on the other hnnd. ,'elating to sewage service; Provided. however. CFJMA shall be responsible for costs and expenses of making all such connections to the BorOUGh Facilities governed by this paragraph 3Z. CFJMA shall not be denied. unreasonably, the right to make any con- nection of the type contemplated by this paragraph where it is not economically feasible to render service to any such property with its OWn lines. - 34 - ;...r ,',"'J ",""+':;~.'.!-,-':..-": ,\..'....:.. . '~', ,~:" ,"> .~),.' '",,- 1.1 . ,-,. ""',,' '':l~~:.:'~';~.._. . .... .. " .'" . \'-r,. I '. ~}~ ' .. -" ',,, . ..... ..' __" ;;:r , . The parties agree that Borough Authority and the Borough, as appropriate, shall have the right to make and collect sewer assessments, tapping (or connection) fees and sewer rentals, rates and charges and other charges per- mitted by law with respect to properties served by the CFJMA Facilities snd service rendered thereby against or to, as appropriate, properties located in the Borough and residents of the Borough, as appropriate, benefited or served, as appropriate, by the CFJMA Joint Facilities; Provided. however, Borough Authority and the Borough shall be responsible for costs and expenses of making all sueh connections to the CFJMA Facilities governed by this paragraph 32. the costs and expenses of construction of which are not part of the Costs of Construction of the CF JMA Joint Facilities. Borough shall not be denied, unreasonably, the right to make ~ I I , any connection of the type contemplated by this paragraph where it is not economically feasible to render service to any such property with its lines or lines of Borough '. " . " "',' .' " ;..:. !:," . ".' ~ - ~ .,..;' .' ': ,.:. . ',,' ." . . Authority. 33. The parties hereto agree that if, at any time, dispu:"s shall arise " II II ~ I between them concerning factual determinations und"r the terms of this Joint Agree- ment, the matter of dispute shall be referred to three arbitrators, one to be appointed by CFJMA, one to be appointed by Borough Authority and the Borough and the third to be agreed upon by the two appointees so selected; Provid~d. however, that in the event SUO" appointees cannot agree on the third arbitrator, the President Judge of the Court of Common Pleas of Cumberland County. Pennsylvania, shall appoint the third final binding upon the parties hereto. their respective successors and assigns. Each party hereto shall pay the costs of its own appointee and one-half of the costs of the third arbitrator, 34. A, The partie. hereto agree that all Borough Facilities, Borough Joint Facilities, and Additional Borough Facilities, I I I together with all future alterations, additions, improvements and extensions, shall be owned solely by Borough Authority; and that all CF JMA Faciliti"s and CFJMA Joint Facilities together with aU - 35 - : ~;"'.':'''_'';''-::I-~<-;:'; li~. ~!r:t;P.~'" ~ ,":' . "..,. . -.... ~ , ,~",_. '-"-c' ...... ..\., .......{...,r i' .".. -"'~.....:,," . , ~ .. ..".' . .. .-. ~. F, It is understood and agreed by the parties hereto that Borough Authority 80lely shall continue to provide sewage treatment services individually and not In any way whatsoever as a part of thi. P.;,:,-eement. to Shippensburg State College under such p,. "e"t or future agreements as Ship?ensburg 3orouS;:1 Authority ar... the Commonwe01lth of PennsylVAnia now are parties to. C'lay execute, Without any approval b~' Any other pArty herelX>. G. It is understood and "sreed that non~ of the terms of this Joint Agreement shall in any way be construed to aliect or abrosat(: the present contract between the Borough of Shipp ens burg and Shippensburg Borough Authority. to supply sewage treatment services to the facilities known as ltCollege Park Apartmf'ntsl1 located in .S~ippensburg Township, Cumberland County, Pennsyl- vania. H. Should anyone or more of the proviGions of this J ulat Agreement be held illegal. invalid or unenforceable, such illegality, invalidity or unenicrceability dlCli.! l1'1t affect any o~h~r provision of this Agreemel1t. and this Joint Acrt;'(:1nent sha,ll, in such cil"CUmst3nc~~, be construed aflJ enforced as if sUt'h i!:~r;all invalid or unenf.J\.cc~ble provision had root been contained herein. I. The failure o{ any party hereto to insist upon strict performance of this J oint Agr~ement or any of the terms or conditions thereof, shall not be construed as a waiver of any such rights hereunder. J. This Joint Agreement and all notices, determinations or other acts provided for herein constitute the entire agreement between the parties hereto, and there are no other representations or agreements, vtrbal or written. other than tho.e <ontalned herein or provided for hcr~lIl. Thi. Joint Agreemenl ",ay be modlfied, amended or supple- mentcd by lh~ Wrllten as"Teement of all of the parties hereto. ., ;-- '-., - ,- ')",' '..' '::, j :;. < ,1 " .' " .' . _.,' ' , . ;-.)'--:, .~ ...!;:.._....~.:~.,:-: ;e'~..,t.~ ...,.........~t. .:-:c '. -"-''-''-'<'' . K. The term of this Joint Agreement shall be for a period beginning with effectivene.. hereof and "nding at such time a. this J oint Agreement!s terminated by mutual a~""ement of all the - -~ties heretl... 35. Should either CFJI,AA or Borough Authority bt! unao;e IX> settle their required financing on the initially speci.5ed dat" for s!l:Iultaneous settlement . h ~ of financing, determined puuwant IX> paragraph. 2 and 4 hereof. the other party at any time shall after the expiration of a period of six months. have th" right IX> dect to specify, in writing, a date upon which this Joint Agreement shall terminate if such financing has not been settled by the other party. which date shall be not less than 60 days from the date of said election. 36. This Joint Agreement shall be binding upon the parties hereto 3nd their respective successors and assigns; Provided. howev~r, this Joint Agr~~- ment shall not become effective until both Borough Authority and CFJMA shall have been offered and shall have accepted grants of funds under the 1972 F eJeral \'later Pollntion Control Act amendments. P.L. 92-500, pursuant to the respective applications therefor heretofore made by both Dorough AI'thority and CFJMA. 37. This Joint Agreement may be executed in any number of counter- p:'':'''ts I each o! ......hich ShOll! be an original. but 5u:h ccun.t~rpa.rts together shall constitute but on" and the same instrument. IN WITNESS WHEREOF. the parties hereto have caused this Joint Agreement to be executed by their duly authorized appropriate officers and their respective seals to be affixed hereunto, all as of the day and year first above written. AITEST: CUMBERLAND-FRANKLIN JOmT MUNICIPAL AUTIlORITY 'l>' ~<"^'/ r:,/"r"-W { V'Chairman ,':' ~. :-. '."'\ ...., .- . .' . " ~'. '" :_~:.pr .'1' -. .',.,..: .'~. . ,:' ..;.' . " (/ ../ . {",.,,.: ff. Ie (~ Secretary - ~,-~~ ,~~. , I"~,,-z:; ,.~ ATTEST: ~:;;:~%u./~,~ . '! . :',k'::5ecretary / -: '.(SEAL)' .. '.' .' ... .. . . '. ..:~:..~:..., .~' ... .1"li-:~I' AITEST: /.~ . ~ ~~~,,~~ ..,.,~eere'ary V ..G3EAL) ... .~ .........:.. TOWNSHIP OF SOUTHAMPTON. Cumberland County. Pennsylvania By: ,/, ) 2, , . Y;/..J:,!/; t." ~,~....n/_/ Chair= c! the Board of Supervisors .- ~, .. ,,\J 1--:..'" ",I ATTeST: ~ . '~L'l . '.' '._ Secretary .~ : : ~ (SE,;,L) '. " . ".1 ,~..,. .. TC...:NSHlP OF SHlPPENSBU!1.G. Cumberland ;;oanty. .. enns lvania By: ,.... ATTEST: G J~/l1tl f'</il t~ jl' '. SecretAry (SEAL) .. ./ TOWNSHIP OF SOUTHAMPTON. Franklin County. Pennsylvt.r.i" By: (~fJ:j1'4#lL Chairman BOROUGH OF ORRSTOWN. Franklin County. Pennsylvania By:.O&~t/ri~IIr.~ ayor By: 7/~r'4.1-11 ft..~ President c! Council . . . --'" - - , ,:' : :1 '... - ~.' \~. '; !. -", ~ , .' ".., . i, "'~"""" .' " .' .. ',' I: - . '..' . '. ;....r..,~,i ....- .' .....' '~~l "_'1 .-' .~ .,. T ',I. w" '.. :./ Sbippensburg Borough Authority Bor~u&h Percent Allocation Cost Allocation ShippensburB State COllege Percent Allocation Cost Allocation EXHIBIT A . TABLE 1 SHIPPENSBURG BOROUGH AUTHORITY CUMBERLAND AND FRANKLIN COUNTIES, PENNSYLVANIA SllMMAAY OP CAPITAL COm'RIBtITIONS (1) ExistinR Pacilities i954 ..1968 Projecl... Project 86.92\ $1,757,015 2.51\ $ 50,625 Cumberland-Franklin Joint Municipal Authority Percent Allocation I'~' l ...:' ~,l (. 'I! , .... t,'iJ]. t~... Cost Allocation 10.57\ $ 213,658 (1) Refers to construction by Shippensburg Borough Authority . \ .' ~ .:. ,,. " 56.02\ $91,636 8.69\ $14,210 35.29\ $57,729 Proposed Facilities c !~Jf" ,~ }' } ;.,:~ ., Cash Contribution Required NIl. NIl. " t',. .;. ....r-;J_ ...). " ". " j ..... . ' "', .. ' " . ~, ',". "..,..' / . . ....'. " . .; - ".' : ~ ".,', '. '. .:. ' , ',,' , " . . . .:t ;, ,~; "', .~{. .11 ~;' 'M', ,. .,J. '1' " '.1'- I: ~I' :';~"r;.:\ ~ ;. I..' ;~\~' . ',' 'i 'J~' . i I~ 'I', .. . ..~", 'jl.' .. " " EXHIBIT A (Cont'd) Table 2 SHlPPENSBURG BOROUGH AUTIlORITY CIJ~lD~RLAND AND FRANKLIN COUNTIES. PENNSYLVANIA CAPITAL COST DISTRIBUTION FACTORS A. Avcrn~c Daily Flow (1995) Shll'l'Cnsburc DOTOUCh Autho:hy CUlObcrlnntl-Frnnl:lin Joint ~lllnicipal Authority Shippensbur~ State Call eRe (I. Pc.1: IIIHan:aneous Rnte (I~95) Shippensbul'Z Borouch Authority Cwnberlnnd-FrnnUin Joint hunicipal Authority Shippensbur: State College C. Peak lnstan:ancous illite (2020) Shi ppensbur:; BorouCh Author! t). Cumberland-Franklin Joint ~unicipal Authority Shippen'bur: State College ., ~IGD \ Distr j be: ',,' . . . ' ' ~ :'. '.' '.',.',., - . - " . ., , . . ~. - , . 1. 70 61.82'" .80 29. 09~ .25 9.09~ 3.75 58.1H 2.12 32.S7~ .58 8.99'; 4.40 37.93~ 6.62 57.0n .58 s.oo~ .... ....... . '-'-:r~-..,:..7:.,.. A-.J#. EXlIIUIT A [Cont'd) T~blu 2 (Cont'd) Persons \ Distribution Populntion I!quivalents D. BOD~ (0 .167 Ib/eapita/d~y) Shippensburg Borough Authority 11. B50 53.95~ Cumberland-Franklin Joint M~ieipal Authority 8,140 37.06~ Shippensburg State College 1,975 8.99~ E. Suspended Solli::. (0 .20 Ib/eapita/day) Shippellsburg Borough Authority 8,575 48.31" Cumberland-Franklin Joint Hu::icipal Authority 7.350 41.41\ Shipllensburg State College 1.825 10.28\ F. P04 (Q .025 Ib/eapita/day) Shippensbllrg BoroUCh Authority 16.080 60.45" Cwnhcrland-Franklin Joint Hunieipal Authority 8.000 30.08\ Shippensburg State Colloge 2,520 9.47t G. !!!.fA.:!! Shippcnsburg Dorough Authority 14,100 57.80\ Cumberland-Franklin Joint Hudeipal Authority 7,825 32.07" ShiPpcnsburg State College 2,470 10.ln ~. "'. .. , -.~ - '" , . . : ;: -- "~ ;- , " - ...: . .' ',.', ',.' "., ., , " .J~." " ," .', , . , .' . ,. '. . '/., " :....r-'I,. . ':<;I.; H"''''' EXlUBIT A (Cont'd) TABLE 3 SIflPPENSBURG BOROUGII AlTIlllRm aJMBERJ.&.ND AND FRANKLIN COUNTIES, PENllSYLVANIA EXISfING FACILITIES 1954 PROJECT Distribution of Costs Shippensburg Borough Authority Cumberland-Pranklin Basis of Cost of Shippensburg Joint ~ Allocation (1) Item Borough State College Municipal Authority 1. Collection System $ 712,195 $ 683,895 $ 28,300(2) 2, Interceptors 9,514 9,514 3. Interceptors (3) 22,530 15,852 $ 4,667 . . 4, P.S. 6 Porce Mains 33,726 32,326 1,400 5. Primary Clarifier A 26,325 16,274 2,393 7,658 6. Trickling Filter D,E 34,424 17,705 3,294 13,425 7. Secondary Clarifier A 28,528 17,636 2,593 8,299 8. Chlorino Contact Tank A 2,986 2,603 383 9. Sl"dge Digester D,E 40,103 20,625 3,838 15,640 10. Sludge Beds D,E 16,682 14,065 2,617 11. Glus Enclosuro D,E $ 18,271 $ 15,409 $ 2,868 $ ,,, ,- to' ,) f >1 ~,\ ' '. :;f ", I. r.' .~:.... p i'f " .:~ . '~J'. ' ':"":1 ~:l~. ,,'. ~ . r'- ", .,' \ .' '.' 1< '. \ . /f'l~. . :.~'.~;i :-: ':/ '. i' ;':+ ,'I f' ,~' . . ,- ,I" .', !'. .I' . \'*. '., -.J.....~ .:.~-.-- .~~.-.~., -. ~:'~ wo'" ':',: .-'., ,"""j ., "'.. .', ....1..,' , ",', ._r-, EXHIBIT A (Cant 0 d) Table 3 (Cont'd) !!!! 12. Plumbing, Heat.lng, Ventilating and Electrical Basis of Allocction (1) Cost of ~ Distribution of Costs Shippensburg Borough Authority CUmberland-Prank1i Shippensburg Joint Borough State College Municipal Autllorit 14. Total Construction Cost (4) $ 175,933 $ 109,684 $ 18,911 $ 47,338 (4) 18,000 11 ,222 1,935 4,843 (5) 1,139,223 966,810 45,510 126,903 (5) 220,777 198,979 5,115 16,683(6) (7) 1,360,000 1,165,789 50,625 143,5B6 (7) 7]2,098 636,916 (9) 75,182 (10) 31,700(11) 28,100 3,600 (7) 82,500 73,790 (9) . 8,710 2,021,298 1,757,015 50,625 '213,658 13. Plant Site 15. Engineering, Legal, etc. 16. Total Project Cost 11. Interest Paid on Bonds (8) 18. Ejector Station 19. Less Investment income (12) 20. Total Shares Refer to Exhibit A, Table 2 (1) (2) (3) Includes allowance for purchase by CPJMA of sewers on Richard Avenue, North Prince Street, and North Queen Street Based on .58 HeD representing peak College Plow Rate divided by 2.8D MGD representing minimum, flowing-fUll capacity of existing interceptor from MH 191-268 (6) Excluding finance charges' (1) Weighted average of Items 14 and IS (8) f>rom 10/1/52 to 1/1/71 (9) Included with Shippensburg Borough Authority (10) Based on 0.025 MeD repres.nting peak CPJMA flow rate tributary to station (11) . Total project cost (12) Earned on Bond Redemption and Improvement Fund f: through 1976; no interest earned prior to 1959 (4) Ileighted average of Items 5 - 11 (5) Weighted average of Items 1 - 13 .- t.,,' ,',. t., , ".~ '. .". I .. -~~ . ,''''of'''' T' ';,. ~~ N .-" :::: ~.'.} ", _'" ~'.;t.' . ';i ,.. j' \r' .. l~. -! fh t) ':'' -1' l,.;. . ~'~t~;.~ / ,'*' " .' . .' ;' . , " - , . " - , " " :', ' " ~' ~, - - t' . .. .." - ., . :'. ' , '. ,. . " ,", . -'. , \. ;....r"f~;.;..:r-. EXHIBIT A (Cont'd) TABLE 4 SHIPPENSBURG BOROOGlI AlITIlORITY CUlffiERLAND AND PRANKLIN COUNTIES, PENNSYLVANIA EXISTING PACILITIES 1968 PROJEcr Distribution of Costs Shippensburg Borough Authority Cumberland-Franklin Basis or Cost of Shippensburg Joint .!ill! Allocation (1) ~ Borough State College Huni cipal Authol'i ty 1. Trickling Filtor D,E $ 70,613 $ 36,316 $ 6,758 $ 27,539 2. Secondary Clarifier A 54,025 33,398 4,911 15,716 3. Chlorine Contact Tanks B 18, B59 16,441 2,418 .., Contre I Building A 19,525 12,070 1,775 5,680 AI terations 5. Trickling Fi! ter C 9,B79 3,747 494 5,638 Al terations 6. PrimaI)' Clarifier C 8,469 3,213 423 4,833 AI terations 7. Subsurface Work A 28,200 17,434 2,563 8,203 8. Outside Piping C '31,881 12..~93 1,594 18,194 9. Miscellaneous A 9,495 5,870 863 2,762 10. Electrical (2) 4,993 . 2,797 434 1,762 . U. Total Construction Cost (2) $ 255,939 $ 143,379 $ 22,233 $ 90,327 \.r'~.'.~ \ , .... , :\ . "'ok; i. ..' ~";~r..+-." }i~' :~:' ' .' , ;..... e' i . I. I , " :,...':~. '^t ,.r . . .-".,~"', l"'^r' ~~" ,-' ~-~ ".-' ._;~: "-"-\,"'\', .",- '.' , '.' ,'. " \ ...r'l"t~...;c.:.'.- "J .. - - . - e ~ - -. ~'{ r - '-. ". ,"",~ , . 1"1 ' i " . Qt- -Ji {;Y'ljfo to (z~ '71(707 ~ b .....,_.~~,,-......- ...,"~ .....::............-.;...,. \; t' '., ". ..' :.", :..' ~c~'" C . -" -:.' ,":: '.' :~. ','.' : '. : ~.. . :, :'. " .,: :- . . ...' ", . ::', - :" .-', . . ": .' . '. :...... , ) CUMBE"nLAND-FRANKLlN JOINT MUNICIPAL AUTHORITY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF SHIPPENSBURG, SHIPPENSBURG BOROUGH AUTHORITY and SHIPPENSBURG BOROUGH COUNCIL, DEFENDANTS 98-7133 EQUITY TERM ORDER OF COURT AND NOW, this 17th day of December, 1998, a hearing on the within petition for the issuance of a preliminary injunction shall be conducted at 8:45 a.m" Tuesday, December 29, 1998, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania, By the COUrt, I /1 i,l J Edgai13~B~ley.~, :saa . . . . ',' :',\ ':. -,' ':~' ..'..:.,_".,',.:'" "',' ~-- ,:'.. ~.'. .'.~'~ '1' ,', .~'. " .,'~ ~', '.... .~ r~i:t!':!\':::-,~,::~-:::\~:~-;-:,J :. ?~~~:5~;,~~.tD.}.S.:.::::' ',', ',:.:,,\~ ':':' ", ,,"'\ ,.:," " . ltIICTTIc.ICv~~ ... \""OOO..IOG ATTORNEV_ .AT I...Aw ~;EC 1 71998~ , Y ",' ~'~ ! .HAAlIliID.U~(J; '. PltNN8VL.VANIA .'" . !5l~, " "'0, BOlt a'GISO' "7110~OgeO ~: .' "i ,",,' ~, ~ ^ i , . . " .~4. j 'l ~ ',:":. : ': <. "'~~'i .:'}:f~;!.;:(, . :,,'.~:,::':\\~?',::,":: ':\/;.;:1' ..A{.';:~iP .'," . , " 1 '. .' ,...- ~ ,,:. , ~ " I:, r I ,". " I , I r I I . \ - ;.....r--'~~._..J '. -..,' ,-", ... ~. ': " ... r ~ .','" '. . ','.' , .,' _ , CII~IBEi{LAp;n-FIL\:\I\L1p; .IOINT TIll.1NICIl'.,\L AI :TIIOIt!TY. Plaintiff IN TIlE COllltT tW CmnlON PLEAS CII~lIlEItL,\Nn COlINTY, I'ENNSYLVANIA v, BOHOllGII OF SIIIPPENSIlUIW, SlllPPENSIlUItG BOltOUGl1 AUTIIOItlTY IInd SlllI'l'ENSBllltG BOIWllGll COUNSEL. Defendants 9P - '7/2,]' [ill \-1,/ CIVIL ACTION IN EQUITY I PLAINTIFF CUMBEHLAND-FHANKLIN .IOINT MUNICIPAL AUTIIOHlTY'S PETITION FOR SPECIAL IN.JUNC'I'IVE HELIEF PUHSUANT TO PA RC.P. SEC'I'ION 15:11 PetitioneJ', CnmheJ'land-FJ'anklin,Joint ~Innieipal AnthoJ'ity ["CF,J1\IA"]. hy its attoJ'lJe~'s, Mette, Evans and Woodside, hel'ehy petitions this ConJ't to entel' a Special OJ'del' in the natuJ'c of a pJ'climinaJ'Y and peJ'manent injunction pllJ'suant to Hule 1[i:l1 of the Pennsylvania Rules of CivilPJ'oceduJ'e, aud in suppoJ't theJ'eof aveJ's as follows: 1. Petitiouer, CF,JMA, is a muuieipal authority of thc COlllmonwcalth of Pennsyl\'1l1lia, CF,J~L\ prcsenlly pJ'ovides sewel' coiled ion sel'vices to Southhampton Township and OJ'rstownllorougll, located in Franklin County. and Southhampton Township aud Shippl'nshurg'Township. IOl'atl'd in Cnlllherland County Ihcrl'inaftl'J' l'olll'etil'l'ly J'l'fel'l'l'd to as "CF,I~L\ ~lemhcr ~Innidpalilies"l, ;-.r- ~_.....J> . <rAt' " .; .' ,'.': . .,..... ' . '_:. ' .. . . '" r.. . : '. "::" :' .' ' , .." : ~. ',.'" -, ~-,: . .-,r . _ " 1{(~SPOlldl'lIt, BOl'ollg'h of ShiPPl'lIslllll'g'I"Bol'ollgli" J, is a mllllil'ipal cOJ'pOl'a!ioll locatl'd ill Cllmhel'lalld and FJ'anldin COllntil's, Pennsylvania, :l, Hespondent, Shippenshlll'g BOJ'ollgh AlIlhorit~' ["BOI'ollgh Authority"], is a muuicipalauthOJ'ily of the Commouwealth of I'euns~'lvauia, 4, Respondcnt, Shippenshurg Borough Couucil ["Borough Council"]. is the fjvc-membel' govel'lling' body for the BOI'oUg'h. 5, At all times relevant hcreto, the Borough alllVor Borough Authority has exclusively owned, operated and maiutained a wastewater treatment plant ["'VWTP"] and a sewag"C collection s~'stemloeated within thc Borougll which provide sewag'C treatmcnt for the grcater Shippensburg arca, G. At all times rell'vaut hercto, CF,J~IA has exclusively owned, opcrated and maintaiucda waste water collectiou and tJ'ansport sytem which services thc CF.I~IA l\Icmbci'l\Iuuieipalities and whil'h deJi\'l'I's waste watel' to the Borougl1 w,....I'I' plll'suant to the tenus and couditions of a ,Joint Agl'eement executed hetwccn the Borough and CF.J~L\ in 1 !l77 l" W77 Agreemcnt"'], " . .." . ;',' .,'. '~'. ~': . ' ',,', ':" " "3' " '.' " :' ',:' , .:' t'~ 'j" ' " , ',. ,. "t. ',' .- . '.'_ . =....::E:.: A.... i, l'ul'suant to the 1!lii :\gTl'l'IUent. the lJoroug'h owns Ihl' \VWI'I' and all sowel'lines within tho llol'oug'h: CF.l~l1\ owns all sewer lines and pumping' stations located in the CF,IMA Memhel'1\lnuicipalilies adjaeent to and surl'olllHling' the BOI'Ollg'h. 1), PUI'suant to the Wii 1\gl'eement, CF,11\I:\ is allocated ~n,n% of the capacity of the existing' selvage collection, transportation, treafment and disposal facilities, said facilities consisting' of the Borough \VWTI', the existing' sewer lines within the Borong'h and the existing' se\\'el'lines and pumping' stations located in the CF.Jl'l1\ 1\leIllher l\IlInidpalities, !}, Pursllant to the tnii 1\gl'eeIllent, CF.11\I1\ pays ~n,!)Ofo of all capital iIlljlrO\'ements to the Boroug'h \VWl'l' and the existing' sewel'lines which sel'l'iee the Borough and the CF,11\I1\ ~Il'mher ~Iunicipali(ics, 10, CF,I1\I:\ has no input into the seopl', necessity 01' cost-effectiveness of the eapital impro\'l'llll'nts madl' h~' the llorong11. 11. The BOl'ongh has l'stilllatl'd that the \v\\rI'l' and the existing sewer lines I'l'quirl' seven (i) to l'ii!,ht (S) million dollars in eapital il1lpJ'Ovl'IlIcnts in :\ ) . ~. ~ _. _, .c..,...."., .....~'," .";. -. ',+ . .",~. :,',' '-0_: :',:T" :'., 1)' ,.'.',':' OI'del' to sllrndl'nll~' upgl'adl' ('xisl iug' faeilit il's to ha IHII(' exisl iug sl'wagl' flow and to comply with DEI' I'l'gldalious, I:!, Pursuant 10 the In77 Agl'eement, CF.J~IA and its eonsulting enginecrs are entitled to investiglltl' and review (he necessity, cost and effieieney of all capital improvenwnts proposed by the 1l00'oug'h to the \VWI'I' and exisitng sewcl' lines, 1:3. Speeifically, the W?7 Agl'eenwnt gives CF.JI'vL\ thc following rih~lts: a) CF.J:.IA and its eonsulting enginem's must he provided a "reasonahle opportunity to inspeel" all BOI'oug'h sewage faeilities, Sec W7? Agl'eement, ~ 7, b) CF.J:.\'\ is entitled to review the estimated cost of any proposed capital impro\'enwnts, Sec Hl77 Agl'ecment. 'lliiA(~), e) An~' l'apital l'ontrihutions made hy CF,J:.IA a1'e suhjed to final adjustment after CF,Jl\IA's eonsulting engineers have certified that all capital imprO\'enwnt l'osts have been aseerlained and are Icgitimate, See W/'7 Agl'eement, 'illS, I,!. Ovel'thl' eOlll'Sl' of the preceding two Yl'ars, CF,nlA and its enh~neers have questioned the validit~' and amount of Sl'\'l'I'al bills it has rcedved from the Borough [Ill' eapital ilIlprO\'l'ml'nts to thl' \V\\TP and l'xisting ,sewage faeilities, 1 ..^ .. " . ~"'~:'<""'"':, - ..:~"-, -.' " -. '.' '-.'. "-1.:, ,'~', " "~.1 "',"." _,' ,'" ~ ': '.""_ I;;, OWI'II\[) eOIlI'Sl' of lilt' past two ~'t'al's, tht' I!ol'ollg'h and CF,nL\ ha\'(' heen aUemptillg' fo negotiale an Intergovernmental Agl'l'l'llIent that wonld create a Regionallllnnicipal Anthority that wonld replaee the l'xisling', outdated sewagt~ treatment andtJ'allsportation system, lli, The PI'oposed Regional MUllicipall\lIthority wOllld address certain pressing' waste watel' treatment isslles ineluding, iI/fer afia, upgmdes and rehahilitation of the WWI'!', Ihe need I' OJ' Oexihility in flit ure eapacity expansion, alld the rehabilitation of the Borough's existing' sewag'C tJ'anspOJ'l system, 17, During' the course of the neg'Otiations hetween the Borough and CF,JMA o\'er the proposed Regional Municipal Authority, the Boroug11 agl'eedto IIIake no additional capital improvements to the WWT!' untilneg'olialions had been finalized, 18, The Borougil, in direct eonl ran'llt ion of its agl'l'l'meatlo l'ease capital improvements to the \V\VI'!' untilneg'Otiations are l'ompleled, has neverthl'll'ss decided to go forward with plans to purchas(' and install a ncw hl'1I filtl'I' press flll' the \\'\\'"I'!" .. . I ' " - "': .':: . " ': ..' -; . t . . .. f:'"" " _ _ ".; """. :. . ,.': ,.' : .~," ;: ,.'," ". ;',' _., , J. , , l!I, TI\(' Ilorollg'h's PI'OIJllsl'd plan 1'01' till' installation Ofillll~W helt filtl'1' press 1'l'lJllil'l'S I) IIIl' dl'lIlOlition of Ihe exisling'hllilding'which pl'l'scntly hOllses fhe hell filter pl'ess and;:!) the eonstrlll'tion of an entil'e1y new hnilding-which is to he located al'l'OSS the I'oad fl'(lIn the existing\V\VTI', Thl' location of this new huildingwillnl'l'essitate the hal'k and forlh tl'anspol'lation of sewagc acl'OSS Route ll:!ii (Avon Drive), :!O. CF,IMA will he required to pay 1'01' :!!J,!J"/" of the cosioI' the new belt filtel' press despite having no input as to whethel' the BOJ'Ough's pl'oposed capital alterations to the W\vTI' are necessal'Y, efficient 01' cost-effectivc, 21. CF,IMA and its consult.ingengincers believe the BOl'oug'h's proposed building plan for the helt filter press is wasteful, impmctical, unucccssaJ'Y and excessive. 22, Petitioner CF,J~L\ will suffer immediate and ineparahle harm if the Respondents are permitted to gll forward with their plans for the iustallation of a new belt filter press ael'oss the road from the W\VTI', Speeifieally, C!<',IMA and its ratepa~'el's will suffer irrppamhle harm hecause: a) The constrnction of a huilding to house a new lICit filter press, nnl' ('omplell'd, willl'onstitue a pl'rlllanent alll'l'lItion of the existing'\\".\TI>; Ii .~ ' , '""fIt'"""' ~J..X'_ , , ~." '. _;'~'''' . -, -.~ '\ - _,f ';I' ~-7 -~,-. ~:.t'.' ~- '.-' -. ".-~'_.h.~~,,-..;_'h-:'~~:;'-' '; ,,- r . " ',' ,j"'_ ,'. -. .' . " ~~ hl II will hl' illlpossihll' fOl' CV,J~L\ 10 1'('sIOI'(' 111l' \IIW'!'!' to its OI'igilwl forlll ami opl'I'alional inleg'i'il~' OIIC!' tlw Ilol'llng'h has eOlllpletl'd const I'IJcl ion of tlw IIl'W hnilding' and inslalll'dlhe hl'lt filter 11I'ess; c) CF',nlA's mfepa~'l'I's will he nnahll' 10 I'l!eoup the funels conlrihuted to this ulI\\'al'I'anll'd andeostly PI'ojl'cl. 2:1, A gl'eater injury will result iu this case froml'l:fnsiug' to gl'ant a preliminary and permanent injunction thau from gl'antiug' it, heeause: a) The Boroug'h's proposcel construction of a huildiug to house a new belt filter press, if and when completed, will constitute a permanent and ilTemcdiahle structural aud opemtional alteration of the existing \V\VT I' , b) Convel'sely, the BOI'oug'h will suffel'liItJe hardship if it is required to cease all capital imllJ'O\'l'ments to the W\VTI' until CF.Jl\1A and its engineel's have an opportunity to hoth iuvestig11te the proposed eapital improvemcnts and vcri(v 01' challenge the neeessity, efficiency and ovel'all eost of the proposed hell filtel' press, 21 The issuanee of a prelilllinal'~' a III I pl'I'IlJauent iujunction to el'ase construction and installation of a new hl'1t fillel' pl'l'SS and all oth('r eapital impro\'l'ment to the W\\Crl' \\'illrestore the parti!'" to thl'ir statns hefol'l' thl' Borough's wl'lIllgfulconduet took pla('l', ~ " \ . , e) Enjoining'l he Borongh from nmldng' any eapital impl'O\'l'ml'nls pending' III is Court's detl'I'mination of wlH'lhl'l' I hI' 1 !l!li Ag'l'eement between the paI'lies is void and/ol' voidable as a ma[(er of law, !{espce(fulIy sllhmittcd, METTE, EVANS & WOODSIDE By: ~ \~\\~ David A. Fitzsimons SUjl, Ct. ],0, #<l1 i22 Allthony T, Lucido SUjl, Ct. ],]), #7:li78 :HOl NOI,th Front Street P.O. Box 5050 Harrisburg', PA 17110-0050 (7 i 7) 2:l2-5000 Attorllcys for PetitioJler t. :. .~ I ; I ; r ' ('I ~. ) . ,. ! Date: Dcecmhel' 17, 19B5 I ! i , !l 11~ ;7:,; I . t -: ."'.~' ,':.~.,I' ,'" '~~';;'~""'~:""~""~?"~';-'''~t~'':,.'~;:'~""~~~~ ..,...., '.;. ",.:~.' , '\O.~. ;,t:;- .', ,~ q~, . ~ ~, ^',... .-,'( .. :- . . :. . . . .,VC>fl '( 'Z- . 71."7 /' L'L' l Qc'X ( C"t) 'I '/~ /l& "'.7 (~ (.~ c;" <-) I J.) r II -'-'. . \ I ',' '. ~', ,,~~ ..:I^~~'.'r:~'~""'~~~;{Y;:-;r,l~"'I't":..:<;-:ro'fr:'~~;t:.m\N,,!~~~~""~ 'If . (, ... -.:....._ __~: ,_" _, ',: . " ",I'-'~::'~'.,';""'\"'\ :.. "_~: "_II, ~ '_ --,-~ .~.-,_ ,-'-, ._0-. ' ....' SALZMANN & DEPAULlS, p.c. DEG 2 II l~:jl::l " I ~SOC1^I\I.I:H Ihv.ll . l'.ll.lbx 276 . CIl!\lIl11L1tSm:w. PA 17201-0276 (717) 2M.21:.:!1 F,\X (717) 2(d.06(i3 IO~ N(~lrlll FIlPNl SlHllT . SUJH 201 . I /'\](Jt]SJlL'I{{i, I'A 17101 (7171232.'1420 I',\X (7171212.1970 ;..' , , "i ,;. -' ,,-,-, . ~. I ; ~,,' i . t ; ( I J , . I' '. i ,~ 1.~j: , '. ~',.. 1~:" ~;{,..". ~--:-~-.-,;;;,-(1\1"~-;'''''; !.'~'7'~r.,'~~~,:.;i,.t;.i:.,~ '-:'::'.I""'~ ,,:"1 ;ry.olt,"".l~" :A1~.t;~;;;-...,-",\""", : -....., . .' c>' ~:".~. " ~...I-!~..~,,+"'Z' ,,,.-"" CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Petitioner vs, ,', ,", , BOROUGH OF SHIPPENSBURG,: No, 98-7133 SHIPPENSBURG BOROUGH AUTHORITY and SHIPPENSBURG BOROUGH COUNCIL, EQUITY TERM Respondents " " ') : l , ) " ., DEFENDANT BOROUGH OF SHIPPENSBURG, SHIPPENSBURG BOROUGH AUTHORITY, AND SHIPPENSBURG BOROUGH COUNCIL'S RESPONSE TO PLAINTIFF '8 PETITION FOR SPECIAL INJUNCTIVE RELIEF PURSUANT TO PA. R.C.P. SECTION 1531 AND NOW, Defendant Borough of Shipp ens burg, Defendant Shippensburg Borough Authority, and Defendant Shippensburg Borough Council (hereinafter collectively referred to as "Defendant Borough of Shippensburg"), by and through their counsel G, Bryan Salzmann, Esquire of the law firm of Salzmann & Depaulis, P,C" files this Response to Plaintiff Cumberland-Franklin Joint Municipal Authority's (hereinafter referred to as "CFJMA") Petition for Special Injunctive Relief Pursuant to Pa, R,C.P. ~ 1531 as follows: 1, Admitted, By way of further response, Petitioner CFJMA has never owned, operated, leased, managed or constructed a wastewater treaunent plant (herinafter referred to as "WWTP"). 2, Admitted, 3, Admitted, 1 " __, '., I ": ..~- I" :.. ,,' ~~.' '-.,.~~ ~~.'\;~~~.'<""~I~" .~., ~,I' ,':,.: ',', ...' , '< ,'.<':..,". """'," , ''''3:' 4, Denied, It is specifically denied that Respondent Shippensburg Borough Council ("Borough Council") is a five-member governing body for the Borough, To the contrary, as duly organized under the Pennsylvania Borough Code, 53 P,S, 9 45801 et seq" Shippensburg Borough Council eonstitutes six council persons representing their respective wards and a mayor who is delegated certain duties and responsibilities, 5, Admitted in part and denied in part, It is admitted that the Borough and/or Borough Authority owns, operates and maintains a wastewater trealment plant and a. sewage collection system located within the Borough, It is specifically denied that the sewage collection system provides sewage treatment for the greater Shippensburg area, To the contrary, the sewage collection system located within the Borough provides only for collection and does not provide wastewater treatment. 6, Admitted in part and denied in part. While it is admitted that CFJMA owns, operates and maintains a wastewater collection system which provides service to the CFJMA Member Municipalities and delivers wastewater to the Borough Wastewater Treatment Plant and such delivery of wastewater is pursuant to the Joint Agreement dated January 15, 1977, as amended by the First Amendment 10 Joint Agreement, it is specifically denied that CFJMA has delivered such wastewater to the Borough lawfully pursuant to the tenus and conditions of the aforsesaid Joint Agreement as it is believed and therefore averred that PlaintiffCFJMA has violated certain tenns of the Agreement. By way of further response, Defendant Borough is unable to respond to Plaintiff CFJMA's use of the temlS "wastewater collection" and "transport" system, By way of further response, it is specifically denied that the Joint Agreement was executed only between the Borough and CFJMA in 1977 as there were other numerous parties to the 2 \ . 1. 'i """, I.;....."' .~..I,.~..':.!!'.~~.::.~~~.~.,.: ';~"."'_,.'.v,\.~../.~';....,." ',:' .' ,'...~...;:'.~ ' ~.: .,(.~ 1977 lntermunicipal Agreement including Southampton Township and Shippensburg Township in Cumberland County, and Southampton Township and Orrstown Borough in Franklin County, By way of further response, certain collection lincs are "shared lines" which deliver wastewater to Defendant Borough's WWTP utilized by both CFJMA and the Borough, 7. Denied. Since the averments contained in Paragraph 7 seek to characterize a writing, which is attached to Plaintiffs Complaint, the writing speaks for itself. By way of further response, the Shippensburg Borough Authority is the record owner of the WWTP and lands associated thereto, 8. Denied, Since the averments contained in Paragraph 8 seek to characterize a writing, which is attached to Plaintiffs Complaint, the writing speaks for itself. 9, Denied, Since the averments contained in Paragraph 9 seek to characterize a writing, which is attached to Plaintiffs Complaint, the writing speaks for itself, 10, Denied. After reasonable investigation, Defendant Borough of Shippensburg is without knowledge or infomlation sufficient to form a belief as to the truth of the averments contained in Paragraph 10 of Plaintiffs Petition and proof thereof is demanded. By way of further response, if Paragraph 10 of Plaintiffs Petition relates to the Borough's WWTP, it is specifically denied that CFJMA has no input into the scope, necessity or cost-effectiveness of the capital improvements made by the Borough to the WWTP. To the contrary, CFJMA has previous knowledge of and provides input into the scope, necessity, and cost-effectiveness of the capital improvements completed by the Borough at its W\\iTP, By way of furthcr response, Defendant Borough is the permittee for the W\\TTP and holds ultimate responsibility 10 the Pennsylvania Department of 3 " .. : ,'j' '-'~"I':":: ,.. .~. .",':\ ,-",,~-,,"~"'-'"-'- ...~;,,,.. '::';-':'" ;7':' .':<", ,.':'r...;""-:;' '~'. '''':~ ,t ", .. '1,,-'. ",,': ':,''' ~ ~. '.. .""":,-t.~ Environmental Protection for the WWTP's safe operation including capital improvements to the Borough's WWTP, II, Denied. It is specifically denied that the Borough has estimated tll'ltlhe WWTP and the existing sewer lines require seven (7) to eight (8) million dollars in capital improvements in order to sufficiently upgrade existing facilities to handle existing sewage flow and to comply with DEP regulations. To the contrary, there have been numerous estimates concerning upgrades to existing facilities depending upon which upgrades would be implemented, By way of further response, the proposed aforesaid costs have been revised over the course of time and the costs lor capital improvements have fluctuated based upon certain revisions. 12, Denied, To the extent paragraph 12 of Plaintiffs motion seeks to characterize a writing, which is attached to Plaintiff's Complaint, the writing speaks for itself. 13 (a)-(c). Denied. To the extent paragraph l3(a-c) of Plaintiffs motion seeks to characterize certain paragraphs of the Joint Agreement dated January 15, 1977, the writing speaks for itself, 14. Admitted in part and denied in part, It is admitted that CFJMA has raised certain questions concerning bills forwarded under the Joint Agreement. With respect to the remaining averments contained in parab'l'aph 14 of Plaintiff's motion, after reasonable invl:stigation, Defendant Borough is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 14 of Plaintiffs Petition and proof thereof is demanded. By way of further response, Defendant Borough is without knowledge or infonnation and is therefore, unable to respond to CFJ1'vlA's 4 ", ,: - ."" ~!i::r'" '),~,... "'~\I',:~~'1.';.~.1{l;,."i~~""'';;T';;~.':o'~;:r..t'.y.it'''"'"~.1(.-~''''''~':';'< f'-~~""~l"IT;~~"l>W'~,'""": .... ":. " .. \ " t ,~.~" '~.~" '. . . 1 "..' " :'~.'l"~:I.,.;.:ar-.~~~,::.},~~ avelments that "it's Engineers" have questioned the "validity" and amount of"several bills" over the course of the preceding "two years", By way of further response, when an issue has been raised by CFJMA regarding billings from the Borough, the Borough believes and therfore avers that said questions have been rectified by a mutual agreement of the parties. 15, Admitted in part and denied in part, It is admitted that the Borough and CFJMA have attempted to negotiate an Inlergovernmental Agreement which would create a regional authority, It is specifically denied that the regional authority would necessarily replace the existing, outdated sewage treatment and transportation system, By way of further response, the negotiations surrounding an Intergovernmental Agreement ceased several months ago as the parties did not achieve agreement on numerous significant issues, By way of further response, no written agreement or ordinance were ever approved or adopted by the Board ofCFJMA, Orrstown Borough Council, the Board of Supervisors of Shipp ens burg Township, the Board of Supervisors ofSouthhampton Township, Cumberland County, the Board of Supervisors of Southharnpton Township, Franklin County, Shippensburg Borough Council, or the Board of the Shipp.:nsburg Borough Authority, 16, Denied, After reasonable investigation, Defendant Borough of Shippensburg is without knowledge or infonnation sufficient 10 fonn a belief as to the truth of the avennents contained in Paragraph 16 of Plain tilT's Petition and proof thereof is demanded. :. ,!t'.... ,~_.t ~ ; (>;;;.r:'N~:':\'~ '#1 :.n ~~ ~_..!~_:<".":'~~:'::,""'-,:!"",~-,,-~~:"-:"-'..:T.--:' -:; .~-~'r~'-"- -.~ '. ~ .~. , ','" '. I. ,,' 4 '. "__~,=~L~>-=:~~~.",'::u':, 17, Denied, It is specifically denied that during the course of negotiations between the Borough and CFJMA over the proposed Regional Municipal Authority, the Borough agreed to make no additional capital improvements to the wastewater treatment plant until negotiations had been finalized, To lhe contrary, a motion of Shipp ens burg Borough Council directed its counsel only to draft an Intergovernmental Agreement. By way of further response, a brief delay of necessary capital improvcments to Defendant Borough's WWTP was in the best interests of Defendant Borough and Defendant Borough Authority, 18, Denied. It is specifically denied that the Borough, in direct contravention of its agreement to cease capital improvements to the WWTP until the negotiations are completed, has nevertheless decided to go forward with plans to purchase and install a new belt filter press for the WWTP. 19, Admitted in part and denied in proto It is admitted that the Borough's plan for installation of a new belt filter press will involve the construction of a new building located across the road from the existing wastewater treatment plant, It is denied that the i' ~ I , I proposed plan will include the demolition of an existing building which presently houses the belt filter press and the location of the new building will necessitate the back and forth of transportation of sewage across Route 625 (Avon Drive), 20, Admitted in part and denied in part. It is admitted that CFJMA will be required to pay 29,9% of the cost of the new belt filter press, as well as other capital improvements associated therewith. It is specifically denied that CFJMA will be required to pay despite having no input as to whether the Borough's proposed capital alterations 10 the WWTP arc necessary, efficient, cost-effectivc. To the contrary, CFJMA has been 6 \ ,", ~'. :, ", ',:,' . _ _J. . ,\..~.-'-'1-- ..~."":~~.:..:_:::O':,...~;.~.~~~._ ~:-~ - , , -. '.', " ,or" f\o;. . /._ -.:.._-~' - ;~ . welcome to and has been afforded the ability to provide input into the Borough's proposed capital improvements and has provided input into the new belt filter press project. 21, Denied, After reasonable investigation, Defendant Borough is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 21 ofPlaintiffCFJMA's Petition and strict proof thereof is demanded, By way of further response, Defendant Borough admits that CFJMA's input regarding the belt filter press project has been negative and that CFJMA has asserted that the Borough's proposed plans concerning the belt filter press is wasteful and excessive, 22, Denied. It is specifically denied that Petitioner CFJMA will suffer immediate and irreparable harm if the Respondents are permitted to go forward with their plans for the installation of a new belt filter press across the road from the WWTP, It is specifically denied that CFJMA and its ratepayers will suffer irreparable harm because: a) The construction of a building to house a new belt filter press, one (sic) once completed, will constitute a permanent alteration of the existing WWTP; b) It will be impossible for CFJMA to restore the WWTP 10 its original form and operational integrity once the Borough has completed construction of the new building and installed the belt filter press; and c) CFJMA's ratepayers will be unable to recoup the funds contributed to this unwarranted and costly project. 23, Denied, It is specifically denied that a greater injury will result in this case from refusing to grant a preliminary and pennanent injunction than from granting it, because: a) The Borough's proposed construction of a building to house 7 . " " " .', . ".... '.' , , ' '.'. _ n' .J..,: '...' '. ' , '''. ~'\ .. a new belt filter press, if and when completed, will constitute a penn anent and irremediable structural and operational alteration of the existing WWTP; b) Conversely, the Borough will suffer little hardship if it is required to eease all capital improvements 10 the WWTP until CFJMA and its engineers have an opportunity to both ll1vestigate the proposed capital improvements and verify or challenge the necessity, efficiency and overall cost of the proposed belt filter press, To the contrary, on September 16, 1998, the Department of Environmental Protection approved Defendant Borough's Part Il Water Quality Management ("WQM") Pennit Application allowing for the aforesaid belt filter press project to move forward which was not appealed and stands as an unchallengeable decision of the Department. (A copy of the Department of Environmental Protection's Part II WQM Pennit approval is attached hereto as Exhibit "A",) By way of further response, on December 18, 1998, the Department of Environmental Protection issued a Notice of Violation to Defendant Borough requiring that Defendant Borough of Shipp ens burg move immediately to implementation of the proposed upgrades to correct the current aforesaid conditions. (A copy of the Department of Environmental Protection's Notice of Violation is attached hereto as Exhibit "B"), 24. Denied, It is specifically denied that the issuance of a preliminary and penn anent injunction to cease cons\nlction and installation of a new belt filtcr press and all other capital improvements to the WWTP will restore the parties to their status before the Borough's wrongful conducllook place, 8 ~..~_...<.~.~. I ~ -,~.... fT..., ._ ._'-;~ . " . " '. '.. ,:.' ) ",:' ..;_~\~ ...~_.,' ~,:'~-l.-:- -:_.--.,- , ," ,-, . . . .. ," " .' ~ ~ 1,,' 25. Denied, It is specifically denied that a preliminary and pellnanent injunction is necessary in this case because Pelitioner CFJMA 's right is clear and the Borough's wrong is manifest: a) Pursuant to the tenns of the 1977 Agreement, CFJMA and its engineers are entitled to inspect the WWTP and to review the legitimacy oflhe costs for any proposed capital improvements, b) The Borough's plan to install a new belt filter press violates its agreement to suspend all capital improvements until negotiations pertaining to the proposed Regional Municipal Authority are complete, 26. The avennents contained in Paragraph 26 of Plaintiffs Petition constitute conclusions of law to which no response is required, WHEREFORE, Defendants Borough of Shippensburg, Shippensburg Borough Council, and Shippensburg Borough Authority request this Honorable Court to deny Petitioner CFJMA's request for preliminary and pennanent injunctive relief, Respectfully submitted, Salzmann & DePaulis, P,C. K ~ By: ;5. Bryan Nonna J. Lukacs, s ~ Counsel to Defendants 1580 Gabler Road, P,O, Box 276 Chambersburg, PA 17201-0276 (717) 263-2121 105 North Front Street, Suite 201 Harrisburg, PA 17101 (717) 232-9420 9 -.- -,_.,'"".._~- - - ',' -'7".~~~ ;e.j. , ,'.' .....:...,-;"I~.>l,~.'.,'.',._~.'-.,~:'.~~~ :"'~ '. .-.,.;-;~-.~~'~<..,"~'''''''''~<~';-''.~:,''--.''- .,.-, .',,: '_" :,', Ct' ,'~ '-. . > CERTIFICATE OF SERVICE ~ I hereby certify that I have,lhis?8 day of December, 1998 sent a true and correct copy of the foregoing Response to Plaintiffs' Pelition for Special Injunctive Relief Pursuant to Pa, R,C,P, Section 1531 via facsimile and United States Mail, first class, postage prepaid as follows: David A, Fitzsimons, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P,O, Box 5950 Harrisburg, P A 17110-0950 Salzmann & DePaulis, P,C, an , Esquire Counsel for Defen ts 10 ~. \,'~';l,~.,r-"'.~ :~;.::. .,-...-. -, ,,-,: .-:~ ':. ;', ;\~_"::'::';"'-1" :".'~ :~.-~.'" ',. ..... '" ,.., ~ - '''"''l~i-X'.~':'' FROM SHIPPENSBURG BOROUGH FAX 1-0. Doc. 28 1998 11:37AM PI VERIFICATION I verilY that all the .lalmenlS made i~ the foregoing documenl are tnIe ar.d corre.t to lhe best of my knowledge, infonnution and belief and that :illY false fla:l:menIS made are subject to the penalti.. of 18 Pa,C.S, Section 4904 relating to un''''ol7l fal,ification to nUlhotities, ~-. ;:$?~ William Wolfe, Man8ger " ....l ........~- -.......... .-..--.-- - , . .' ' , ': " ~~\ .~ ~, 7'- :. " . - . -, .:' . " j " ", + , .- .::" '.' ' -:', . y " ",'" ,~~. .. ' . --~ _..~~ .'. .. ,'.I.'____J!'. ;]&~'';, ...-.. EXHIBIT "An ! _', ' .. ' ~-. - ,.- ~ :-;r:: "."'- _ .' : , ",,""' "-: -: . ',' ",'~ ~ " :. I'" - .' _ ',' _. ~ . .,..~ ;'-. , ~--- ~- "-"~'~'" - -...,.; ~' ~'........----- Southcentral Regional Office Mr. William Wolfe Borough of Shippensburg 60 West Burd Street Shippensburg, P A 17257 Dear Mr. Wolfe: Pennsylvania Department of Environmental Protection 7.:PLE;,l.5ENOTE OUR'NEW ADDRESS'& PH()m;NUMBE~'t~ 909 Elmerton Avenue Harrisburg, PA 17110-8200 SEP 1 6 1998 717-705-4707 FAX-m.:105..:17.60 ,."~,. ~ 'r:~ ~ M ~.... ~ r::\ " '.' '1 ., SEP I 7 1998 , ~~.:~"'.'~,~..-'~ -. ~j . "~~." ~i~~(), Re: Sewage _,_ . _...'~_ __ ..,'. _.,... Part II Permit No. 2190403 (98-1) Southampton Township, Cumberland County Leon M. Oberdick Program Manager Water Management Program cc: Peter J. Lusardi, CET Engineering Services, Inc. ~no'lI_ Mo "1ft' 0.&.'" Subject permit is enclosed. The permittee shall comply with all Special Conditions attached to this Permit C01lSlIllction must be done in accordance to the permit application and all supporting documentation. Review the permit conditions and application-supporting documents before starting construction. If you have any questions, please direct them to Mr. Devang D. Patel of the Permits Section at 717-705-4813. . . .' .. ~,~ :.... - " . , , . '. . r. , . : .... :_ r _~. -" . . ' . .' " , " . .' " '.'" .'! . . " . Enclosures AttEauM ()oonr'tur'ltfVIArfi""'_,.....Ac'/)OIt~ . ~..._- . .~ '.- ~ ~~ ~ Pennsylvania Department of Environmental Protection WATER MANAGEl'vlENT PERMIT PERMIT NO. 2190403 AMENDMENT NO. 98.\ ..: ',',' ..: '. ~~~-, '~.L:: ". .') 'r',""', - '.t" ,-. .'.. ..~- A. Permittee (Name and Address) B, Project: Borough of Shippensburg 60 West BurG Street Shippensburg, PA 17257 Name Sludee Dewaterine Facilitv Municipality SOlllhamoton Townshio County Cumberland C. This: Pennit ~ Permit Amendment _ Impoundment Closure Approves: _ The COnstnlctioaloperation of: _ Sewage Tee:mnent facilities Annual Hydraulic Capacity Mo, Max Hydraulic Capacity _ Organic Capacity _ #BOD/day _ Land Application Facilities _ Sewers and Appurtenances _ Impo'mclrnent(s) and Liner System L ModifiC<ltions to the consrructioaloperation of: MGD MGD Indusaial Waste Teeaanent Facilities X Other: Sludee Dewaterine Facilitv _ Pump Station(s) Hydraulic Capacity _ GPM _ Injection Well(s) _ Groundwater Monitoring Well(s) Brief description ofpennitted activity: This project includes constrUction of a second sludge storage pad as a part of its wastewater treatment facility. The proposal is to also replace the existing belt filler presses with a new filter press. D. This approval is subjeClto the following conditions: I. All consrruction, operations, and procedures shall be in =ordance with the application dated July 21,1998 and its supporting documentation. Sucb application, its supporting documentation andlor addenda are bereby made part of this permit. 2. Special Conditions A through O. E. The authority granted by the permit is subject to the following funber qualifications: I. If there is a conflict between the appliC<ltion or its supporting documents andlor addenda and the Stand:lrd or Special Conditions, the Standard or Special Conditions sbalI apply. 2. Failure to comply with Ibe Rules and Regulations of tbe Department or with the terms or conditions of this permit sha1l void the authority given to the peunittee by the issuance oflbe pennit. 3. This permit is issued pursuant to The Clean Streams Law, Act of June 22. 19 ,P,L. 1987, ~ 35 P.S. ~ 691.1 ngg. Issuance oflbe pennit sball not relieve the permittee of any ibility er any other law. . Permit Issued: B66t 9 l d:;S 1\......1 \j D M. Oberdlck P\"O&r3m Mauger \ Southeenlr.ll Regional Omee Permit Amended: MEO\UII ~rvIArfi.",.uIVf'Ac'tJM(~ hr.o'l!_rill'O_SlJ.lr,o.&_u\ {l:.' "'nlTd Oft I<<>od<d _ l,:.~ WATER ivlANAGEMENT PEIU,.fIT Borough of Shippensburg PART II NO, 2190403 (98-1) PAGE 2 Southampton Township Cumberland County .' ,.... . "." ,,', '!' .' J .' " . . I 'I ' . . , ' .' , I .' -. .', . \', ", ~ SPECIAL CONDITIONS: A. The authority granted by this permit is subject to all effluent requirements, monitoring requirements, and other conditions as set forth in Pans A, B and C of the NPDES Permit No, PA 0030643 and all subsequent amendments and renewals. No discharge is authorized from these facilities unless approved by an NPDES Permit. B. Disclaimer Consistent with the Depamoent of Environmental Protection's Application Review Policy for Water .Manage- ment (part m Penn its, the Depamoent did not conduct a detailed technical review of this application. The Depamoent considers Mr. Peter J. Lusardi. the registered professional engineer whose seal is affi....ed to the design documents, to be fully responsible for the adequacy of all aspects afthe facility design. C. During construction, no changes affecting any engineering design parameter shall be made from the plans, designs, and other data herein approved unless the permittee shall first receive written approval thereof from the Depamoenl. The sewerage facilities shall be constructed under expert engineering supervision and competent inspection, D. The sewers shall have adequate foundation support as soil cooditions require, Trenches shall be backfilled such that the sewers will have proper struclllml stability, with minimum settling and adequate protection against breakage. Concrete used in connection with these sewers shall be protected from injmy by water, freezing, drying, or other harmful conditions until cured. E. Manhole inverts shall be so formed as to facilitate the flow of the sewage and tu prevent the standing of sewage solids, and the whole manhole structure shaH have proper structural strength and be so constructed as to prevent undue infiltration, entrance of the street wash or grit, and to provide convenient and safe means of access and mainten311ce. F. No stann water from pavements, area ways, roofs, foundation drains or other sources shall be admilIed to the sanitary sewers herein approved. G. The permittee shall file with the Depamoent "as-built" plans showing the correct plan of all sewers and sewerage structures as actually constructed, together with any other related information that may be required. H. The approval herein given is specifically made contingent upon the pennittee acquiring all necessary property rights, by easement or otherwise, providing for the satisfactory construction, operation, maintenance and replacement of all sewers or sewerage structures in, along. or across private property, with full rights of ingress, egress, and regress. . 1. When the herein approved sewage treatment works is completed and before it is placed in operation, the permittee shall notify the Department in writing so that an inspection of the works may be made by a representative of the Depamocnl. J. The various structures and apparatus of the herein approved sewage treatment works shall be maintained in proper condition so that the tacilicy will individually and collectively perform the functions for which they were designed. ,- , , . ' , ,: v.' - '.', .' .. . " .- '; .' - "' . . " ? " ' " '., ',' ",' I . ' ',' .' '.' ", ~' ' " .' " WATER MANAGEMENT PERMIT Borough of Shippensburg PART II NO. 2190403 (98-1) .\ PAGE 3 Southampton Township Cumberland County K. If, in the opinion of the Depnrtment. these works are not so operated or if by reason of change in the chnraeter of wastes or increased load upon the works, or changed use or condition of the receiving body of water, or otherwise the effluent from the said works ce3SeS to be satisfactory or the sewerage facilities shall have created a public nuisance, then upon notice by the Department, the right herein granted shall cease and become null and void unless within the time specified by the Department, the permittee shall adopt such remedial measures as will produce an effluent which, in the opinion of the Deparonent, will be satisfactory, L. The permittee shall construct the sewerage facilities in a manner compatible with good conservation methods in order to minimize the adverse effect on the environment. M. The sewage treatment plant shall be operated by an operator certified in accordance with the Sewage Treatment Plant and Waterworks Operators' Certification Act, the Act of November 18,1968, P.L. 1217, as amended, N. Receipt of this permit does not relieve the permittee of it obligations to comply with all federal, interstate, state, or local laws, ordinances, and regulations applicable to the construction and operation of the sewerage facilities authorized herein. If the project involves earth moving activities, an erosion and sedimentation control plan must be prepared and implemented. Contact the county conservation district for specific requirements for your project. 0, This permit does not give any real or personal property rights or grant any exclusive privileges, nor shall it be construed to grant or confum any right, title easement, 01' interest in, on, to, or over any lands belonging to the Commonwealth. , -.:..;. .. EXHIBIT "B" , . ....:., '. ' ':. ~ ';,'. ,', " ' '.,. .,.:,'. . . . , . . . ',', ',.'. : > . . "." . .. ,'. .:..' , :. ........ ..............-.,... .' ~."J DE? (liater ,~gt) 717 705 4760 12/22 '9809:32 NO.375 02/03 Wala ~CII1ect ?rogr:lll1 909 E.imcnon Avenue Harrisburg. Pennsylvania 17110 December 18, 1998 Southcel1tral ~oaal Office (71i) 70$.4706 FAX (717) 705-4760 NonCE OF VIOL.\. TION M:. William Wolfe Borough ofShippcnsburg 6iJ West Burd Street Shippensburg, PA. 17257 R::; Borough of Shippens!lurg-jA Southampton Twp, Franklin Coumy D= Mr. Wolfe: On D=Oer 16, 1998, 4ll iilSllection wu eonduc-..ed ofvour WlUtewatcr trcatmcmt ~lity, The laboratory ~t3 afl.~ !lIIlIples ccllc=cl will be' compared to the c:fflucnt lir::its e=blWlcd in your ~ES Permit, ~o. P AOOj0643. and forwarded when aoal~ is compiet:. Once near the tre:tment facility, while turning ontO Bard Stn:ct off Rt. 696. pungent aden were detected in the air (downwind of tho sewage treat:llcct facility). Upon arrival at the liscility thll same PWlBent od= w~ c!ctectetl whits SWldill8 over tOp of 4lld downwind of th" primary clarifiers and the sludge thick=er. Upon closer ~,.",;Mtion oCme treIIIIlent uniwproo:ss. it wu ob'.ious that an excess level oflolids IlIId Qr;N""'...Il1cd in the ptilnary cluifc:n mi sludge thicl:ener, Theso ClCCassive solids levels are ~ ning dcnitrificalion in the to oumsm units and pungent odors lit aDd downwind of the :re:=e::t ...,.;!;ty, In addition tho ==ivll solids and otbllr foreign materials cor;iting the primary c:I.I.ri1!ers have md are causing cloggini of tile pOItS on the distribution m::s of the trickling 6ltcr nearest thll office. The clogging h&s SlOpped the arm from moving ami is preventing a. good growth from forming on the f\In:r 1III:di.a. which will be =ry to .-im:2m t:reaIIllent emcieacy during the upeorainS cold weather Failure to operue U'elfn"jJ( units as d.eSgned. mcl1 as solids overloading, hu!lOt ocly c:wed pungent odofS but is IS vicllaion ofyaur NPDES pennit Th, odors ClIlISt.d by the =:css IIOIlds and the: fa:ibm: of one trickling ffiw" arm to rctIite lIl'lI evideccc of & problem with the trea.tmCllt efndc:t:y md lIIIint!:WlCc. Possibly, &ddi%ion&l penonneI or Niditional limo SpaIt on operations will be llllC:ef'ory to bring the solids in tho auanent system to & IIl!Il8gCIblo md , . . ,. . ~. . . ' "...., .' ,\,', . ..'..... ..... , . , . ":.' '. -: '. . " ."....tIt ".1, DEi' (\later Mgt) 717 705 4760 ~2J22 '9809:32 NO.375 03/03 desired level, Another way to deerwe solids would be to C'.n1aii the IlCCepunCC of holding w:kJ'septic tank ....'Ute at the treatment facility, At this time the Depanment recol'!lIllClld!l that the Bcroueh ewe taking holding tacl:fseptic Wlk wasted until you Sain control of solids i.!1 the treat:llent system, Please be ad\iscd that failure to comply with the temu and ccnditioos of your NPDES pcrrcit constitutes a violation ofSeaioul 201 and 102 ofTne CIWl Streaml Law, and subj= you to appropriau: enforcement action. We are request that you rubmit a ~ort to this office within 15 days of the date ofibis letter. d~'bing the::!Use ofnoru:omplilll1Ce and the steps being taken to prevent == of the violation along with a correction schedule, Within 30 d4ys of the dale of this letter, a bio-solids report should be submitted to the depanment. Your res;lollSC should include II deseription of Yeu:' bio-!olids progr:un alons with: an estimate of solids tb.1t should be gc:n=Ied yearly at :he facility, ~t what levd the !lOlids should be maintained. how the solids wiD be maintained. and !low the biO-IOlids will be ri:l1Oved from the trcaonc:nt process and disposed of a.ccordlng to governing regulations, If you have atrI question.!, you can contact me ~ 717-705-4773, Sin=11' S!> Robert M. DiGilarmo W = Quality Specialist Water Management Program , , . , : . . '. : :;' .' : . . ' , . '. :'.""" . '.'. ". ','. . ' . " ,"". I - ,~, . , ~...: .~. ..~ .... . ............., '- ' :.1I.~Rv"""1II4,WOOD..ro.. ' ., 'A"':'O"'NJl:YII ~T LAw PlmNlIVL.,VANr..;, 17110-0980 P. O. .0)( DDBO " " ~~\\)'!!!l4!:j:'~:~!~..J:i!"'~~;~~;:P4'i'i:~:'M:l:;;S!NiJ:!(~;lj\'Sf~~S~~r~Q\~1)ieq;n~~~!":%:t';~ . ~ ",,'><, '~'" M<>""""""h"L""""" "","tl,,,,,,,!:,, . " " ~:- '" \ \:,... I , , , ( , , " ' , ' , .'. " . . .- "'I~' .~ c_. _. . . .~ " -'. , CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY, PENNSYLVANIA Plaintirf IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, v. BOROUGH OF SHIPPENSBURG, SHIPPENSBURG BOROUGH AUTHORITY and SHIPPENSBURG BOROUGH COUNSEL, Defendants " /' )) n ,/ 9r "I/vv i::.C(L(t"rY CIVIL ACTION IN EQUITI AFFIDAVIT I, BARRY PERRY, do hereby depose and affirm the following facts to be true and correct to the best of my knowledge, information and belief: 1. I am the Manager of the Cumberland-Franklin Joint Municipal Authority ("CFJMA"l. 2. I have reviewed allegations of the Complaint together with this Affidavit and certify that the facts set forth therein are true to the best of my knowledge, information and belief. a. Plaintiff, CFJMA, is a municipal authority of the Commonwealth of Pennsylvania. CF.JMA presently provides sewer collection services to Southhampton Township and Orrstown l3oroui-:h, located in Franklin County, and Southhamptol1 . ~ ":':'~d: '. ' . ",,' - - , >~, . -. ..,...."., ~. -- , .:.: ,./. "I" ';: '.,':: 'I' ., ; "'" ~) ,'" , ..' . .; Township and Shippensburg Township, located in Cumherland County I hereinafter collectively referred to as "CFJMA Member Municipalities" I. 4. Defendant, Borough of Shippensburg I "Borough"l, is a municipal corporation located il1 Cumberlal1d and Franklin Counties, Pennsylval1ia. 5. Defel1dal1t, Shippensburg Borough Authority ["Borough Authority"], is a mUl1icipal authority of the Commol1wealth of Pennsylvania. 6. Defel1dant, Shippensburg Borough Council ["Borough Coul1cil"], is the six- member governil1g body for the Borough. 7. The Borough exclusively owns, operates and maintains a wastewater treatment plal1t I "\VWTP" I and a sewage collection system located withil1 the Borough which provide sewage treatment for the greatcr Shippensburg area. 8. CFJMA cxclusively owns, opcrates and mail1tains a waste watcr collcction and transport system wbich services the CFJMA Mcmber Municipalities and which delivers waste water to the Borough WWTP. , .._~_._.,'-'- ...". '01' .~-!~,_. : ,- _' . . ,..... ._t':' ' ., . ,"'. ~'-~"-, ~.::I'~, '. ,; '. " .';, ." .,,,', '.: " .. '-" .. -, ,-, 9. The present terms undcl' which CF.JMA and the Borough share usage of the Borough-owned WWTP were originally set {'ll.th in a .Joint. Agreement.exPcllLed between the Borough and CFJMA in 1 H77 I" 1 H77 Agreement." J. 10. Over the course of the last twent.y-one years, the number of residential ratepayers requiring sewage collection, transport and treatment services in the Borough has il1creased and in CFJMA has dramatically increased. 11. At presel1t, there are approximately 1,600 residential ratepayers in the Borough al1d approximately 3,000 residel1tial ratepayers (more specifically "E.D.U.'s") in the CFJMA Member MUl1icipalities who jointly utilize the WWTP for sewage treatmel1t. 12. For the foreseeable future, any significant growth in the Shippensburg regiOl1 must occur in CFJMA member constituencies, because the Borough is "built out", 13. Despite the dramatic increases in population, population density and residential and commercial development that. have occurred within t.he Borough and the CFJMA Member MUl1icipalities--and the /-,'Teatly expanded demand for sewage treatment services and great.er sewage capacity that such growth has cngendered--t.he 1977 ~ - r .l',"' .- ." . . ,. ,~. ",",:~~' :"" ~.',"'h' ",',_0'" '", ,- ~.~ . .,.,' - . . ~ .' . ....,,-J; Agreement has never been modified, revisl)d 01' rei'H'lned to account. fhr the radically changed condit.ions and circumstances today present in the greatCl' Shippenshurg area. 1 ,I. A majority of' the Borou~h COllllCil's current iudividualmenlbers acknowled~e that the existing Illtcrgovernmental Agreement is inadequate f'or addressing the relationship hetween the Borough, Borough Authority, CF.lMA and its constituent members. 15. All parties to this act ion acknowledged the inadequacy of' the existing agreeme11l when they entered negotiations to replace the HJ77 Agreement. I G. Borough Council has declared the negotiations for a new agreemeiltLO be at an end. 17. The 1977 Agreement is a contract of infinite durat.ion, as it contail1s no termination date. Under the HJ77 Agreement's terms it canl10t lapse ul1less both parties agree. 18. Pursuant to the original terms and conditiol1s of the IH77 Agreement, the Borough owns the WWTP and all sewer lines within the Borough; CF.JMA owns all .1 .,.._._~.., ,.~...,~..- - ~-r-l~ .~ ~"":,'" ',.'" I .' " . ',':' ,:' ~...~.....,...,_.,.~,.,....1\,' ".' ! 'i . ,." \ . .... -1 sewer lineH and pUlllping Htll!ions located in t.he CF.JMA Membel' Municipalities adjacent to and surrounding the 13ol'Ough. 19. PUI'HlJallllO the tl'J'I11H and conditionH of' the ]f)?? Agl'ecllwnt, Cl;~II\I^ is allocated 2fJ.fJ% of' the capacity of' the exiHting sewage collection, tl'allsponalion, ll'ealinelll and disposal t:lcilities, said {:lcilities consisting of' the BOl'Ough WIVT!', the existing sewel' lines within Ihe llol'Ough and the existing sewer lines and pumping stations located in the CI']MA Member Municipalities. 20. According to the terms of the 1977 Agreement, CFJMA's 29.9% share of sewage capacity is permanently fixed; it cannot be increased to accommodate t.he il1creasing quantit.y of sewage being generated by residential and commercial ratepayers within the CF,JMA Member Municipalities. 21. Pursuant to tbe 1977 Agreement, CFJMA pays twenty-nil1e percent (29%) of all capital improvement.s to the Borough WWTP and the existing sewer lil1es which service t.he Borough and the CFJMA Member Municipalities. 5 f-r '-'J/ ~,,' ~.. .....;,. .' " .: ".- ~. - - ,:.,' . '. " " '-' -. ': . ' , " ' '" .."'. ' '. 22. Under a separate Int.ergovernnwntal Agrecment with Shippcnsburg University which agreemcnt has a specific expiration date of December 81,1999, the Univcrsity provides 9.9% of cont.ribut.ions towards capital costs on the Borough plant.. 2:3. Because of the 29.9% capital contribution f'rom CFJMA and H.9% from Shippcnsburg University, the Borough Council appcars to take the position that it is only il1 fact responsible for paymeIl t of 60% of costs. As such, there appears to be no motivation on the Borough's part to attempt to reasonably limit expenses. 24. The Borough has failed to diligently maintail1 the plant and provide cost effective upgrades during the term of'the Intergovernmental Agrcement with CF.JMA. 25. The Borough has estimated that the WWTP and the existil1g sewer lines require seven (7) to eight (8) million dollars in capit.al improvements in order to sufficiel1t1y upgrade existing facilities to handle existing sewage l10w al1d to comply with DEP regulat.ions, 2(). The Department of' Environmental Hesources ("DEl'''). in I nus. imposed a moratorium on sewer book-ups sen'cd by lbe WWTI'. The moralorium \l'as lifted on I\' after an adnlinistratio:! upgrade to planl Glpacil\'. () . " ,':. . .-", I:"; -::,'. .' \. ' "1. _ j ~ . ~ '. . - ," ~ '~.' . . ' 'I.. ." -." . , . . ' . ,., , ' " . ' " . '". " . - ~ ":.,,,..~".;:...... 27. The 1lI0l'atol'illlll raised iSSUl'S or plalll adcquacy alld IlIallagclllclIl of I'l'gioll- wide cOllcerll wliich till' 1l01'llllgh COllllcil to date lias 1'cl'llscd to ackllowledgc 01' addl'l'ss. 28. The Borough has given CFJMA no input into the scope, necessity or cost- effectiveness ofthe capital improvements proposed t.o be made by the Borough. 2H. The Borough's select.ion of means and methods of plant upl,'1'ades are unnecessarily expensive. 30. The Borough refuses to investigate less expensive design alternatives or to direct its staff or retained engineer to adopt such value engineering as is necessary to reduce costs to the ratepayers. 31. Shippensburg Borough Council has consistel1tly refused to engage constructively or with good faith with CFJMA and its member constituel1cies; as such, the Borough Council refuses to consider any actions that be bel1elicial to CFJMA as a benefit to the community as a whole. 7 :. :-.1" I '''''\ .::;c,'-":-' ~'-~'--.' ~''....'-,'' . ''-, '-'-"'~'-"','-.' ':, '.,.,',' " ',~' ..i'~ .'; , :l2. Ptll'suant to the 1077 Agreement, CF.JMA and its consulting engineers a1'e entitled to investigatl' Hnd review the necessit.y, cost and efficiency of all capital improvements proposed hy the Borough to the WW'I'P and existing sewer lines. aa. CFJMA's right to "inspect, review and ascertain" all aspects of the Borough's proposed capital improvements is intended to allow CFJMA to participate in any decision concerning capital improvements to the Borough's existing sewage facilities. 34. The members of the CF JMA Board are charged by their constituent mUl1icipal entities with providing services to their ratepayers at reasonable cost. 3" a. Over the course of the preceding two years, CFJMA and its engineers have questioned the validity and amount of various bills it has received from the Borough for capital improvements to the WWTP and existing sewage facilities. :JG. O\'er the course of the past t\\'o YC:lrs, lhe Borough alld CFIl\lA have been attelllIlIing lo negoliate a nel\' IIlll'rgo\"('I'II1I1l'lltal Agreellll'llllhat \\'ould create a Hegional 1Ilullicip:d Authority lhat would rl'placl' the l'xisting, ollldaled agreement. s .....,.:-.,~~-. ~-..""? . "7' ".:".,~.~..- -7'-~ ~ i: -'"':''''':-''''',-,\"'~'.l."';.-.,,:,-.-l ',",-,-, , , . -'., . - . . \ - , ..) ,- " ,') . ;P. The proposed i{e!!;iollal !\lullicipal AlllllOritv \\'ollld address certain pressill!!; waste water trcaUIICII( issues iududill!!;, ill/er alia. up.!!;radcs aud rehabilitatioll of thc WWTP, tile lIeed [l)r flexibility in future capacity cxpansion. and till' rehabilitation of the Borough's existing sewage transpol'l systelll. 38. During the course of the negotiatiolls between the Borollgh and CF.Jl\IA over the proposed Hegional Municipal Authority. the Borough agreed to make no additional capital improvements to the WWTP ulltilncgotiatiolls had bee II finalized, with the exception of the purchase of a belt filter press replacclllent which was const ructcd prior to the commencemelll of negotiations. 39. CFJMA and the Borough agreed that the purchase and installation of the new belt filter press is necessary. ,10. CFjl\JA will be required to pay I,ll' 2B-'fr, of the cost of the new helt f1lter press and housing facilities despite ha\'ing no input as to whether the Borough's proposed capital alterations to the WWT!' are nccessary, dl1ciclll or cost-effective. 41. CFJMA and its consulting engineers believe the Borough's proposed building plan for the ncw belt. filtcr press is \\'w'teful, impractical, unnecessary and excessive. ') " .... " '~:. .~,'fe^'/"\",~,.^~:-,"~\J',l,.;:''''' \~,:,~~,:,~~~,-,,~.':",,':'n-.:_ 'J-,:+'-~"';:-~~~":.'-" ":'.:~"'-""~ ~_ ""., ," 42. Petitioner CF.JMA will suffer immediate and il'l'eparable harm ifthe Respondents are permiUed to go forwlIrd with theil' plans f(lI' the installation of the new belt filter presses across the road from the WW'l'P. Specifically, CFJMA and its ratepayers will suffer irreparable harm because: a) CF.lMA's consulting engineer estimates the unnecessary cost attributable to the first phase of the Borough's prqjeet, namely the installation or the belt f'iltcr press across Avon Drive, (0 be in excess of $f)()O,OOO; b) The construction of a building to house the new belt filter presses, once completed, will constitute a permanent alteration of the existing WW'l'P; c) It will be impossible al1d impractical for the WWTP to be restored to its origil1al form and operational integrity once the Borough has completed constructiol1 of the new building and inst.alled the new belt filter press, mail1 line and pump statiol1; d) CFJMA's ratepayers will be ul1able to recoup the funds contributed to this ul1warranted and costly project. e) The Borough's proposed constructiol1 of a building to house the new belt filter press, if al1d when completed, will constitute a permal1el1t and irremediable structural and operational alteratiol1 of the existil1g WWTP. f) The Borough will suffer little hardship if it is required to cease all capital improvemel1ts to the WWTP until CFJMA and its engineers have an opportunity to both investigate the proposed capital improvements and veri(y or challenge the necessity, efficiency and overall cost of the proposed belt filter press. 4:3. The issuance of a permal1ent injunction t.o cease constructiol1 and installat.ion of the new belt filt.er presses and all ot.her capit.al improvemel1t to the 10 , '. ~ 1,-." -~ .~ ~. ~:c,~"' "e.'..... 'c";;"~)"- :':~.~',1\"'~_'1:'-:'.;'y~'~1.;...,~:1' ~""f;-)~-""".. .:. . - ,! ,.' . ." ~. t..,.:l, . ~:..~..,.. WWTP will restore the parties to their status before t.he Borough's wl'Ongful conduct took place. 44. A permanent injunction is necessary in this case because CFJMA's right is clear and the Borough's wrol1g is manifest: a) Pursuant to the terms of the 1977 Agreement, CFJMA and its engineers are entitled to inspect the WWTP and to review the legitimacy ofthe costs for any proposed capital improvements; b) The Borough's plan to install a new belt filter press violates its agreement to suspend all capital improvements until negotiations pertaining to the proposed Regional Municipal Authority are complete. 45. CFJMA is entitled to injunctive relief because this Coml must determine whether the 1977 Agreemel1t which requires CFJMA to pay 29.9% of all capital improvements is void and/or voidable as a matter of law. -, .-) j {J 'j"'. i \ J ,"l" / li..\ BARRY PERRY . / / Manager, CFJMA 11 ,'-', " . '<_~'t.i.'.''' .:I.....;"r,'_;.,~^.."-"~"''iP.;;..~.:~~'I\'~1:~''':,~.;;4~,...~_.'''..1.~-:.~:.. ':....~~..._,l.~_7...~~,.....:.,:~-~.::.~ .~." I: .,"" , . . -,1, -' ~ ,~. .....' . . . ,;1 ~ -; ."-:-~1~",_____~ ,:;';... COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF On this, the le).ll. ol'-jJ.'I'""h.'( ,H)f)8, before me, the undersigned, personally appeared BARHY PERRY known to me (01' satis[ilctorily proven) to be the person whose name is subscribcd to the within documcnt and who acknowledged that he executed the foregoing document for Lhe purposcs therein contained. IN WITNESS WHEHEOF, I hereunto set my hand and of'licial seal. 'f . 1,.;'1 I ,/tu (. X,,tr,.,.. No ary Public" (SEAL) My Commission Expires: '~...-' L':. L. :' .'-' ~. "f", .....,...... "." ,\r; :,; I ,"'I, ,'.,-' .'. 1.,10- ...:.:'-"1 167327 12 " ~.;~'~"~.":....'\f.l .~, ::~~'~,4"'"~-'7~',~',",,',''''''':-'r'I\';'1'.Vr~~~'}~''''''''',~",:nl~"-'f'\. ".J" ."~.I,~.., , ,',' .,', ..:: .,; -'. ,1::-. ..' . . . ._,,:_~. ._~~ 10. _ SALZMANN & DEPAULIS, EC. ; ~~t'~~g~~.1\i~j'i~:~~;'(~~::'j::~,;'i~:.\~.,r:-:i~i':;:'i\':i j;" i';' I SflO GAI\JUI IhlAIl . P,o. nux 276 . CII^!.1I1utS/ll:I\U, /'A J 7201-0276 (717)26j.2121 1'.."(717)11>1.0(,/>1 I05Nl~HTlIF'(nNTSIU'Jr. St1llr201 . ""'{JO~HLJ,{(;.PA 17/01 (7/7) 212.1)'120 F.'1.\' (iI7) 2i2.J970 M.... :~,::",,,,',, ", "~"(:':":"l':;"".<."~~'_~r:1~ :/ "'. ", ,:, ili~;~~;1:II~i ,.;.,,'.;, ~ '!':'~"\';~'\';":'.: "" ,FIt' ~ ., -.:.(~I.~:'P;': i \ -" ";'1 . ,~. 'I '; ,~,;.' ',,, , 'j ,.. f. ( .. "^ ''''''';''..";;':-:-> ;':;'.'\""'lt~+'"":'1"--~:""'.~""....:"~:'~c " ;'..'\'~"'--:"~. '.' ":,';....,';.;, "),.','..,'. '.r'.,,,, '~'-~,' .,... ,.,',.! :'::.r,' ;".,.,~;,' i', \ """':. , ~ " - ..... ~ 'I " CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY, PENNSYLVANIA Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, vs. : NO. 98-7133 BOROUGH OF SHIPPENSBURG, SHIPPENSBURG BOROUGH AUTHORITY and SHIPPENSBURG BOROUGH COUNCIL, Respondent EQUITY TERM DEFENDANT BOROUGH OF SHIPPENSBURG, SHlPPENSBURG BOROUGH AUTHORITY, AND SHIPPENSBURG BOROUGH COUNCIL'S RESPONSE TO PLAINTIFF'S MOTION TO OUASH AND NOW, Defendant Borough of Shipp ens burg, Defendant Shippensburg Borough Authority, and Defendant Shippensburg Borough Council (hereinafter collectively referred to as "Defendant Borough of Shippensburg"), by and through their counsel G. Bryan Salzmann, Esquire of the law firm ofSalzma.-m & DePaulis, P.C., files this Response to Plaintiff Cumberland-Franklin Joint Municipal Authority's (hereinafter referred to as "CFJMA") Motion to Quash as follows: I. Admitted in part and denied in part. It is admitted that the above referenced action was commenced by PIaintiffCFJMA on December 17, 1998 and sought inter alia injunctive relief. It is specifically dcnied that the Borough of Shippensburg is proceeding with unnecessarily expensive modifications to the Wastewater Treatment Plant owned by thc Borough. To the contrary, such modifications are both reasonable and necessary. By way of further response, it is specifically denied that the 1977 Joint Agreement serves only the Borough and Plaintiff CFJMA. To the contrary, the 1977 Joint Agy-eement involves numerous other municipalities. (See attachment to PlaintilT's Complaint entitled "Joint Agreement"). . ,.~""";"'.";-1,~,. ",::.r;, ',";;'~'~.'<I:'.!.,~~" ,""~""'."""\:"~"">t', '01':(,_;;"'::. ,'.',. .J~\~:" ".... '., ..' ': ,: ...._,.._.:-~, :"t, '., 2. Admitted. 3. Denied. It is spcciticalIy denied that the undersigned counsel was provided a courtcsy copy of the pleadings tiled by CFJMA via hand delivery. By way of furthcr response, it is apparent from the tiling of this lawsuit by PIaintiffCFJMA on December 17, 1998, that Plaintiff CFJMA unfortunately attempted to utilize the holiday schedule. The undersigned counsel did not receive a copy of the pleadings from CFJMA's counsel to this date. 4. Admitted. It is admitted that Defendant Borough of Shippensburg served subpoenas to the CFJMA offices in order to require the attendance and testimony of several CFJMA employees and members as it has every right to do to defend itself at the hearing which has becn scheduled by this Honorable Court. 5. Admittcd in part and denied in part. It is specifically admitted that via the Court's Order scheduling this matter for hearing on Tuesday, December 29, 1998 that the pUJ1lose of this hearing is to take evidence regarding CFJMA's request for injunctive relief. It is specifically denied that the materials sought via the subpoenas are superfluous and unnecessary for the December 29,1998 hearing. To the contrary, PlaintiffCFJMA's motion requests both preliminary and permanent injunctive relief and essentially is attempting to circumvent the legal process utilizing the holiday schedule to obtain its requested relief. As it is legally entitled, Defendant Borough of Shippensburg has the right to defend itself and the requested materials and appearance of the subpoenaed witnesses will produce testimony and cvidence in contradiction to Plaintiff CFJMA's allegations as contained in both their Motion for Injunctive Relief as well as its Complaint. In order for PlaintiffCFJMA to be succcssful on its preliminary injunctive rcquest, Plaintiff, CFJMA must establish that its right to rclicf is clear. W:clit Allianec Cor:poration vs. Philadelphia Minit Car Wash Co., 450 Pa. 367, 301 A.2d 816 (1973) In ,. .. .-~~...~ -.~ , " ,- ,,~}. .:.~,_:.'t":;",~ ~"':"}='-:'~'~':~';;(""'1'~'1~"~<:~_'';''(,;:t..~.,.,..>......",.,,-:~<'~:""r'"._." I, ":,,~""1 .,' '.\ ,:: "',", ~~. " _ order to defend itsclf, Defcndant Borough of Shippensburg will establish through the materials requested and testimony ofthc subpoenaed witnesscs that PlaintiffCFJMA's right to reliefis far from clear. 6, Admitted in part and denied in part. It is admitted that servicc of the subpoenas was made without any courtesy copies to counselor any contact advising counsel of a legitimate need of the requested documents. By way of further response, due to the filing of this lawsuit on December 17, 1998, the scheduling ofa hearing on December 29, 1998, and the absence of any legal requirement to contact advising counsel for requested documents, subpoenas were issued as soon as possible due to the impending nature of the hearing. It is specifically denied that the service of the subpoenas were issued merely to inconvenience, annoy, harass, and embarrass the employees and officers ofCFJMA. To the contrary, the subpoenas were issued to lawfully protect the rights of Defendants in defending itself against a preliminary and potentially pennanent injlIDction hearing. 7. Denied. It is specifically denied that the duces tecum aspect of the subpoenas is overly broad and all respects irrelevant to the injunctive relief sought by Plaintiff, To the contrary, the duces tecum aspect of the subpoenas were issued to ensure that CF 1MA' s entire file was present at the hearing for cross-examination purposes as well as evidence to be utilized in Defendant's case in chief. Many of the requested items involve documents which will directly contradict allegations made in the Plaintiff's Complaint which affect the issue of whether Plaintiff CFJMA's right to relief is clear and whether there is immediate or irreparable hann caused to CFJMA. 8. It is admitted that the parties, through this action, will have the opportunity through usual discovery practices to obtain any necessary, relevant and discoverable documentation relating to this suit. It is dcnicd that such documentation is not necessary for thc preliminary injunction hearing. By way of furthcr responsc, it is PlaintiffCFJMA, and not Dcfendant Borough of Shipp ens burg who has sought to "disrupt thc holidays" by thc filing ofa suit .': requesting prcliminary injunctivc relicf on December 17, 1998. Thc undcrsigncd counsel is .-.. ~-"~:"U._'... _.. ,'~" ~ extremely distressed that PlaintiffCFJMA seeks to attempt to limit Defendant Borough's lawful right to protect its intcrests at the injunction hearing through requiring the nccessary witnesses and materials be present. Unfortunately, due to PlaintiffCFJMA's dccision to file this action on December 17, 1998, without any previous notification that the suit would be instituted, the undersigned counsel was left with no other altemative than to pursue issuing subpoenas, the undersigned counsel did not intend to disrupt anyone's holidays. PlaintiffCFJMA, by the filing of the action on December 17, 1998 and a request for an immediate hearing, has chosen a course which has unfortunately disrupted numerous persons' holiday schedules. WHEREFORE, Defendants respectfully request this Honorable Court to deny Plaintiffs Motion to Quash the subpoenas. Respectfully submitted, Salzmann & DePaulis, P.C. By: G, ry a Attorney fo e dan Attorney ill No, 61935 1580 Gabler Road, P.O, Box 276 Charnbersburg, PA 17201-0276 (717) 263-2121 105 North Front Street, Suite 201 Harrisburg, PA 17101 (717) 232-9420 ,'~: '~="'\:'_ '~l'~'~:-_.1:1"Y.,.,';"I".-.1'~"'l-t.'~,:,t';t',),:,;.~~J""'"",:,,:,~~.;;r~;-r'''' .".: ':':~'.. ~,:'.7 ~""_) ".',;-- ;,'. ". '" ,-,"~~. I.' . CERTIFICATE OF SERVICE I hcreby certify that [ have, this 2. ,-\:P-day ofDeccmber, 1998 scnt a true and correct copy of the foregoing Response to Plaintiffs' Motion to Quash via facsimile and United Stalcs Mail, first class, postage prcpaid as follows: David A. Fitzsimons, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, P A 17110-0950 Salzmann & DePaulis, P.C, B ~~ '- r ., , I :, t . , ~-' \ . I , , I . 1:' . I... " ,. ." ) ; ,,~, l.l <,Ie "~1 '1'<" "\11-1 ;(;\t:~ I,.,"'.,;>' ,"!:~'l!.:i4...~ <~,"'}4'.'~ ""., ~~. "" .... ,~ ..~ ,.j Jo ~ . " . , . . " '" " ' j 'I .:.., I "., L.' ,_ . " .'_:~H_, I -.' : , '. , I." .: '.', ..J~" .. h., SALZMANN & DEPAULIS, Pc. ISHO{iAIIU:ll Ihvdl. P.t). Box 276 . C11"~lI1IHSIIl.1H(;, PA 17201-0270 (717l1td.2121 F,,,x (717) 2tl.l,CMI} IOSNI'KIHFltllNIS1HI.LT. S,:nLZOI .IIAltHl'-,II\.i1\t;,I'A 17101 (717) 2.iU142t~ F..\:\ (717) 2il_ll'7t~ -. . . ",',:;,.1 . ./, ~l , , - If ~ , : I ; } . , ( , .~ j i i ( I I , I \ . ... ;-.1..".......:.._, .' '1'"".H".~~,~~~.~:,~ '{:!'f'.\\.";~':<,'?;;'~,",'~"I,,)'1~~.''I",;~r.;'!C;I'~~~'''J''::'''''Iil::i,J,..,,;,tl: ,;:':>>0 "'.< ~:'':;'-'',', '':'-'~ .:~ ",', ,.",.~'" ,l". ,,,' ", CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY, Pctitioncr I~~ THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 98-7133 BOROUGH OF SHIPPENSBURG, SHIPPENSBURG BOROUGH AUTHORITY and SHlPPENSBURG BOROUGH COUNCIL, Respondcnt EQUITY TERM PRAECIPE FOR ENTRY OF APPEARANCE Pleasc enlcr the appearance ofG. Bryan Salzmann, Esquire and Nomla J. Lukacs, Esquire of lhc law fil1n of Salzmann & DcPaulis, P.c. as counsel for thc Defcndants, Borough ofShippensbarg, Shippensburg Borough Authority and Shippensburg Borough Council in the above captioncd action. Salzmann & DePaulis, r.c. \ Salzmann & DcPaulis, P.c. /, 'fl 'I, I. . . By: I ( ( /./1, < :.. ( r {//(' i. Nonna J. Lukacs. Esquire Attomcy for Dcfcndants Attomcy ID No. 80135 J( ,.I I' . . ,: ,::' ~ ,; ,',' ,~. ~:..,L:';'-J. "r,::, "7 . :~"V.~: ",'~.lf'."(~':~~~'f'H~:';1 ~,.~J'l:~:; ~\l'lW .\', ' "'t. ....:_" " ;,\,.. .' J. ': ~ ....... ~\ ""',"'.'" ...J'-'~ CERTIFICATE OF SERVICE AND NOW, this 23'" day of Dcccmbcr, 1998,1 hcrcby ccrtify that I scnt a truc and correct copy of the forcgoing Praccipc for Entry of Appcarllncc Mcmorandum by placing a copy of same in the Unitcd Statcs Mail, First Class, postage prcpaid as follows: David A. Fitzsimons, Esquirc METTE, EV ANS & WOODSIDE 340] North Front Strcct P.O. Box 5950 Harrisburg, P A ] 711 0-0950 Salzmann & DcPaulis, P.C. 1\ I,' !) I, By: '\ C)'II{(iii />,/(1/II(il,/1 G. Bryan Salzmann, Esquire:) 1>/..> AIIOI11CY for Dcfendants ,J S .' '. ',' ~~,~""~~')'."~"l'~:""~"':~~,\"").L'~':":'filt':!i~~'~""'~"".\''7.,,~-:''. I' ."" ...~_.... -~''':--"'' '~' '!.... ,.., ,,f,,) ;....H.t~ "J , CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF SHIPPENSBURG, SHIPPENSBURG BOROUGH AUTHORITY and SHlPPENSBURG BOROUGH COUNCIL, DEFENDANTS 98-7133 EQUITY TERM IN RE: PETITION FOR A PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this l.lsk day of December, 1998, the petition of plaintiff for a preliminary injunction, IS DENIED. By the Court, .~\ ~tv.' Edgar B. Bayley, l / David A. Fitzsimons, Esquire For Plaintiff _ CC-Jl......:....l.. ,_,...(.~l:.{ /2}3/ hI:. ....;,.-,f. G, Bryan Salzmann, Esquire For Defendants :saa , \ ,-"r;';-- ,~'-;;;-l^"'..' """~;"".~l,.';,',:r.'~:"_.~':'1~'"'~'-,;''''",,''':':-''''' ,.:>:,."l,_,..", >"-~;'~""~~"''''''''l'~':"::',;~ " '-', " -, " - ~.... : " T~~"'..........--"""""_. . CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF SHIPP ENS BURG, SHIPPENSBURG BOROUGH AUTHORITY and SHIPPENSBURG BOROUGH COUNCIL, DEFENDANTS 98-7133 EQUITY TERM IN RE: PETITION FOR A PRELIMINARY INJUNCTION OPINION AND ORDER OF COURT Bayley, J., December 31, 199B:-. On December 17, 1998, plail1tiff, Cumberland-Franklin Joint Municipal Authority (CFJMA) filed a complaint in Equity against defendants, Borough of Shippensburg, Shippensburg Borough Authority and Shippensburg Borough Council (hereinafter referred to together as The Borough), Ancillary to the complaint, plaintiff filed a petition for injunctive relief pursual1t to Pa. Rule of Civil Procedure 1531. A hearing was conducted on December 29, 1998. On January 15, 1977, an intergovernmental "Joint Agreement" was entered between, on one part, CFJMA, the Township of Southampton and the Borough of Orrstown in Franklin County and the Townships of Shippensburg and Southampton il1 Cumberland County, and, on the other part, the Borough of Shippensburg located in Cumberland and Franklin Counties and the Shippensburg Borough Authority. Pursuant to the Joint Agreement, CFJMA operates sewage transportation facilities and The Borough operates and maintains a sewage treatmel1t plant that processes sewage from the participatil1g municipalities. The Joint Agreement allows the 98-7133 EQUITY TERM participating municipalities to fulfill their legal obligations under The Pennsylvania Sewage Facilities Act. 35 P.S. Section 7501.1 et sea. Under the Joint Agreement, CFJMA contributes 29.09% toward capital improvements to the sewage treatment plant, The Borough contributes 60%, and other users contribute 10.91 %. The plant was constructed in its current configuration in 1979, and there have been several subsequent upgrades. It contains two belt filter presses that squeeze solid waste to remove liquid and produce a "sludge cake" for disposal. Both parties in this suit agree that this belt filter press system is at the end of its useful life and needs to be replaced. The Borough purchased by low bid a new press for close to $167,000. It will replace the two presses now at the plant. The press has been constructed and will be delivered in a few months, The Borough has awarded to low bidders a general contract for close to $1,231,000 and an electrical contract for close to $150,000 for the upgraded facilities. The work is to be done in 1999. These improvements constitute Phase I of a multi-phase project of upgrades as planned for in a Wastewater Treatment Upgrade Evaluation Report of June, 1995, that was prepared by CET Engineering Services. CET is The Borough's consulting engineer for this project. The Phase 1 upgrades have been approved by the Department of Environmental Protection of the Commonwealth of Pennsylvania (DEP). They will, among other things, correct deficiencies raised in notices of violations in the operation of the sewage treatment plant that have been filed against The Borough by DEP. The completion of the additional phases necessary to upgrade the plant are -2- , . ."'; i\r't~:i!.~.~:J,\I\,:",.,,:o:.::~.~1'~"';I' ::),'u::-' '~,',: '-'r~".I,j;'I~I:',:,'~ .f,~,.,'J..p,~..,.."'>;~"!'''~~-;;~''''''~:'';-'. ":"\";',~", "'" ", \', - .... . .1'"......... ........;.ar __._, .,._~ 98-7133 EQUITY TERM estimated at 3.6 million dollars. The Borough is now exploring financing for those phases. In its complaint, CFJMA, despite having no alternate sewage treatment facility available, seeks a declaration that the 1977 Joint Agreement is void as a matter of law and that it has no continuing obligation to pay 29.09% toward any capital improvements to The Borough's sewage treatment plant. At the hearing on its petition for a preliminary injunction, CFJMA, while acknowledging the need for a new belt filter press system, maintained that Phase I, for which the three awarded bids are close to 1.548 million dollars, includes unnecessary costs of approximately $950,000 if a single press is installed, or $650,000 if a second backup press is installed that is not provided for in CET's design plan. CFJMA's dispute with The Borough essentially involves a difference in the opinion of its civil engineer and The Borough's civil engineer as to whether the new belt filter press should be placed in the building where the two old presses are located or, as planned, in a new building across the street. CFJMA seeks the issuance of a preliminary injunction to restrain The Borough from proceeding with the construction of the Phase I facilities in order to review the costs and, if warranted, redesign the project to eliminate the new building and infrastructure. In T.W. Phillips Gas and Oil Co. v. Peoples Natural Gas Co" 89 Pa. Commw. 377 (1985), the Commonwealth Court set forth the well-established standards necessary for the issuance of a preliminary injunction: -3- . . '. '. .. ... . t, - I, .-~~ .,ioI~~T"' ..... .~,.".,\.... ...~" '.~/..:;.L-:~';;,'.,:,,;II:,::-""..~';:o~~':'l~,K;'l'~''',,"''1I';;'~~'.-,:"'~_ ~T::F,=.:-r;tt'-~ 7'7' '~[... ',',~ " :' r_..;; I .... .. <.:' ~ ~~ ..~', . .'....r-!~.~~. ~":3L..~ ,,,.. 98-7133 EQUITY TERM A court may grant a preliminary injunction only where the moving party establishes the following familiar elements: (1) the relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages; (2) greater injury will occur from refusing the injunction than from granting it; (3) the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and (5) the plaintiff's right to relief is clear. (Citation omitted.) Maintaining that it seeks to protect its rate payers, CFJMA argues that it has produced sufficient evidence to show that the construction of a new building to house the new belt filter press is not warranted.' The engineer upon whose opinion it relies, E. Anthony Joering, made, at best, a cursory examination of the feasibility of eliminating the new building. To the contrary, Peter Lusardi of CET, the professional engineer who designed Phase I, and Steven Huntzinger, the project manager and the owner of CET who has been involved with the operation of the sewage treatment plant since the 1970's, offered opinions that the Phase I plan constitutes a reasonable and prudent design to meet the needs of all of the users of the plant. After I I' I I ' l considering all of the testimony and documentary evidence, we find that the plaintiff's right to relief is not clear. This conclusion is support by Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446 (1960), several owners of realty brought an action in equity against the Upper Montgomery Joint Authority and three boroughs to restrain them from proceeding with the financing and construction of a sewage collection 1. In 1998, CFJMA had a net gain of $550,000. It has projected a net gain in 1999 of over $650,000. It has already placed $300,000 in escrow toward its contribution to the capital improvements at the sewage treatment plant. , l , . -4- i L . . " ' " .': ,..,..~t.,,~,,1, .-;..r..... rn^.,,~ ':', '"'",.'-'; ">"'-";;'.-:C'1'T.:~ ~r,-: ~~:-;;'7.-Ttr;--.r.:~;;~"~'-':~. ~~:. j ,T ..,.-.' '. " ;""":"" ,'. '~...:s:-: -4.' ..~:"" 98-7133 EQUITY TERM system, treatment plant, and related facilities. The Authority had entered into a contract for construction of the sewer system and sold bonds. The Authority's consulting engineers reported that the overall cost of the coordinated system would be a little over $2,000,000. Accepting original jurisdiction, the Supreme Court of Pennsylvania sustained defendants' preliminary objections to plaintiff's complaint, stating: We have long recognized a presumption that municipal officers properly act for the public good: Parker v. City of Philadelphia, supra; Downing v, Erie City School District, 360 Pa. 29, 61 A.2d 133; Gericke v. City of Philadelphia, 353 Pa. 60, 44 A.2d 233. Presumptively, these officials must be regarded as acting properly and for the public good. Absent any allegations in this complaint of either fraud or misconduct and absent any allegations of fact which would indicate that these municipal officials have acted or are acting either in abuse of their power or in a capricious or arbitrary manner, judicial intervention cannot be justified, To label the actions of these officials as capricious or arbitrary does not make them so. A hearing might indicate that the proposed plan is not as complete as it might be, that it involves a greater expenditure of money than the results would justify or that it was unwise at this time to enter upon such a plan. However, the determination of such facts has been placed in the first instance in the discretion and judgment of the Authority and Borough officials and upon them has been placed responsibility under the law for such determination and judgment. Unless It can be shownuand the facts alleged in the complaint, even if proven, do not so show--that the discretion and judgment of such officials have been motivated by fraud or by complete lack of responsibility or by arbitrary considerations or capricious beliefs, no court should substitute its judgment for that of such officials. To do so would constitute an unwarranted judicial interference with the duties of duly appointed and elected public officials. Even if the property owners proved all the facts set forth in their complaint, as distinguished from the conclusions of law, such facts do not show such conduct on the part of the municipal officials as to justify our interference with their discretion and judgment. (Emphasis added.) -5- . .~.: :"':\~.""''''~\''' ....w'. "'J''''-',' "':~"~: ",' ~ ? '". .~:..--. ' ,~.,' :'.. \.' ," t-, '" \ .....,=.. . ,~- ....._-~.~.~. --- ._~'.....~............ 98-7133 EQUITY TERM In the case sub iudice, under the Joint Agreement, The Borough has the responsibility to maintain and operate a sewage treatment plant adequate to meet the needs of its users, which includes its own residents and businesses as well as those in the participating municipalities. There is no allegation nor was there any evidence presented that the officials of The Borough by planning, designing and bidding the Phase I project were motivated by fraud or by complete lack of responsibility or by arbitrary considerations or capricious beliefs. Whether we agree with the engineering assessments of CFJMA or The Borough is not the issue, although, in fact, we find that the engineering evidence presented by The Borough is more credible than that presented by GFJMA. Accordingly, since plaintiff's right to relief is not clear, it is not entitled to a preliminary injunction.2 Additionally, we are satisfied that a greater injury would occur from issuing a preliminary injunction than from denying it. The injury from a delay in installing a new belt filter press system upon which bids have been awarded, and the possible cancellation of those bids and the legal complications that would arise therefrom, far outweigh any perceived financial harm to the rate payers of plaintiff.3 2. All the parties to the Joint Agreement have created a mutual obligation to each other in insuring that there is an adequate facility for the treatment of sewage from the participants. The municipalities that are part of the Joint Agreement with The Borough have not been made parties to this suit. 3. We perceive that the real genesis of this petition for a preliminary injunction derives from CFJMA's frustration at being unsuccessful, after considerable negotiation, in its effort to create a regional municipal authority to replace the 1977 Joint Agreement. -6- ~ ,...-<-:~. , ..~'." .)' :' .. \. . , " '.' " -, ~ ;,,'.' ,,' >, L _ ."' .: '::.l :., "" . "","', .', .,' '.',;'"~ . .. , - . . 98-7133 EQUllY TERM CFJMA also seeks injunctive relief to compel The Borough to comply with provisions in the Joint Agreement that require CFJMA and its consulting engineers be provided a reasonable opportunity to inspect all Borough sewage facilities, and an opportunity to review the estimated cost of any proposed capital improvements.4 We find no credibie evidence that CFJMA has been precluded from the exercise of its rights under the agreement; therefore, an order of relief is not warranted.5 ORDER OF COURT AND NOW, this t;Z1 ~ !--day of December, 1998, the petition of plaintiff for a preliminary injunction, IS DENIED, By the Court, ( /- /". '<,:' ,.' ,,' >' j {~t'",/ Edgar B. Bayley, J.' , / -' David A. Fitzsimons, Esquire For Plaintiff G. Bryan Salzmann, Esquire For Defendants :saa 4, The Agreement provides that any capital contributions made by CFJMA are subject to final adjustment after CFJMA's consulting engineers have certified that all capital improvement costs have been ascertained and are legitimate. 5. That is 110t to say that an improvement in communicatiol1s and the respect that should be accorded between the parties is not in order. -7- '1lr" ~ v-- -. ~. ;...J..,~ , .' : ' "',,' ,..': . ,- ~. '.. ~ ,~; ~ < " . ~ :~ - ~ ~ . ...; ,: '. -;< - \,.': , ~; - l' ':',' . :': , ... ~, .' .," I,' . . '.'" . \.', ... ..f9' ~~..,,,,,,.~I ~~ . ,..'-.. ~ ..-."." ';.. ,......::A..".;.r-;'O:____4~ .J'/:' .-..~ /" ( A(/ / :h (00- 'If -;-4t.<-- C. )) L.Lk._ 'L~; I\..C~^l,/f\__,~"'- , . ,'. " . _ . . \ .' :. '. _ '," .;; '. .-':-. .', - ~'.._l-~~' > .,r-." " - - -: ',: ,J .. , . ' _ ~..... . , -- '_._~, ,.1 """. ....." :L, 30 - 'j f / --\ ''-}-'l'~- A.(' , ' , <","-41J~.A...--- C )}1.-d{<- .d" - , f7't ?">'~Xi(~~'"r.~,'~ _ /{4 I"-~-~~ /1f11 . '", .,.."~ -''",:~' ~~.'t-.-._~:;:'''''''T:.~~-''_,- --:t~^ - .' '1C,' -; ~~\~,. . . . .' , . , ' "'~.::';I'c:,.,-;;~" ~,.,.;.-~;-....-..'-".' . ... ".',-,~ . '. _ "'..:Jr, '" ;:a::."::" . -'. 7~JJ~~"",,,,< /~L~. . 'l~r~,- , /k( r1{ 1" \~ -- [.< , /d'..::.~.t^ ~t-\.-G..,,,,-- 'n "'_ "'-'IV-- C ? )1\d'(<v ^-v-'" . / 1 .' ",' '., - ~ '.\ . -. ~ . '. '. . ' I . , - '......." , ." r-;r , . '. '.' .. - ~ >~ .-- y . .,' ., ..... SALZMANN & DEPAULlS, P.c. 1 S80 G\HU;R ROA11 . P.o. "ox 276 . o IAI..tlIUt<;l\I.!IlCi, PA 17201.0276 (717)263.212\ FAX(717)261.06(1) 105 NORTH FHO~T STHLET . SUI11; 201 . }-IAllJU<.;IIUIH-i, PA 17101 (717) 232.'1420 'AX (717) 212.!'170 ./ '" '(~J, l7,t..'" 'I', I,:, 't- , ") j I I I ( . \ '. '. '. " " ,- -." "~' . , " " '. .. - ._..,~ CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 98-7133 BOROUGH OF SHIPPENSBURG, SHIPPENSBURG BOROUGH AUTHORITY and SHIPPENSBURG BOROUGH COUNCIL, Defendants : EQUITY TERM DEFENDANT BOROUGH OF SHIPPENSBURG, SHIPPENSBURG BOROUGH COUNCIL, AND SHIPPENSBURG BOROUGH AUTHORITY'S PRELIMINARY OBJECTIONS TO PLAINTIFF CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY'S COMPLAINT AND NOW, this ~ay of January, 1999, comes the Defendant Borough of Shippensburg, Shippensburg Borough Council, and Shippensburg Borough Authority, by and through its counsel, G. Bryan Salzmann, Esquire, of Salzmann & DePaulis, P.C., and files thcse Preliminary Objections to Plaintiff Cumberland-Franklin Joint Municipal Authority's Complaint as follows: I. PRELIMINARY OBJECTIONS BASED UPON THE NON-.JOINDER OF A NECESSARY PARTY PURSUANT TO PA. R.c.p, ~1028(a' AND ~1509(a) I. Count I of Plaintiff Cumberland-Franklin Joint Municipal Authority's (hercinafter "CFJMA") Complaint requests this Honorable Court to detennine whether an Intergovernmcntal Agrecment (hcreinaficr referred to as the "1977 Joint Agreement") is void or voidable. 2. Count I ofPlaintiffCFJMA's Complaint requcsts dcclaratory rclicfdctcrnlining whethcr thc 1977 Joint Agrccmcnt is void or voidablc. ',,".r . ",... :. '" : . '."~.'~';';' ",; ',:",..""',1, ~_ :,~ :',', . "'" . . "'~". .~.. " 3. Count I ofl'laintiffCF.lMA's Complaint allcgcs that thc 1977 .Ioint Agreement is unenl,)reeahlc hc\ween the parties to the 1977 .Ioint Agrccmenl. 4. Counts II through IV of I'laintifTCF.lMA 's Complaint requests a permanent injunction, an equitahle reduction in CF.lMA contributions, and a request for arbitration. 5. Connts II through IV of I'laintiffCF.lMA's Complaint requests are based upon the 1977 .Ioint Agrcemcnl. 6. The 1977 .Ioint Agrecmcnt gcncrally provides for the collection, transportation, trcatment, disposal of wastewater for tbc benefit oflhc participating municipalities in order to protect the public health, safety, ami welfare of the greatcr Shippensburg area. 7. The partics to thc 1977 .Ioint Agreement (attached to PlaintiffCFJMA's Complaint as Exhibit "A") include five (5) municipatitics and two municipal authorities. The municipalities that are parties 10 the .Ioint Agreemcnl include the Township of Southampton and the Borough of OITS\(lwn, both located in Franklin County, the Township of Shipp ens burg and the Township of Southampton. both locatcd in Cumberland County, and the Borough of Shipp ens burg, located in both Franklin ami Cumherland Countics. R. The municipalities of the Township of Southam pIon and Borough ofOrrstown, both located in Franklin County, and thc Township of Shippensburg and the Township of Southampton, hoth located in Cumherland County, have not becn named as parties to this action by Plaintiff CF.lMA. 9, Among other things, the 1977 Joint Agrccmcnl provides for the participating municipalities 10 fulfill their duties and obligations to accomplish sewagc facilities planning and 2 -., ;...r"1'~ .# " . " I '. , " . ," " . .)" ' '-', ',- "'-', > , :,. .: ',,! ..: " " . ~ ..;1'-10'--- implcl11cntation within their respcetive municipalities under the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. 1533 (1965), No. 537. as amended, 35 P.S. 9750.1 ct scq. 10. The 1977 Joint Agreement provides the other municipalities with rights and interests conceming the collection, transportation, trcatment, and disposal of wastewater within their rcspective municipalities. II. Plaintiff CFJMA was created as a Joint Municipal Authority under thc Pcnnsylvania Municipal Authorities Act, 1945 P.L. 382, No. 164,53 Pa.C.S.A. 9301 et seq. 12. PlaintiffCFJMA was itself created by the abscnt party municipalities who have rescrved certain powers over the Authority pursuant to the Pennsylvania Municipal Authorities Act, 53 Pa.C.S.A. 9303. 13. The Pennsylvania 1ntergovemmental Cooperation Law, 1972 P.L. 762, No. 180,53 P.S. 9481 et seq. requires municipalities to establish ordinances which provide for intcrgovcmmental cooperation. 14. Changes, rcvisions, amendments, or dissolution of the Joint Agrcemcnt would require approval of all municipalities who are parties to the 1977 Joint Agreement by ordinance. ..., I I I The other participating municipalities to the 1977 Joint Agrecment are indispcnsablc parties to this instant action. 15. Failurc to join an indispensable party deprivcs thc Court of jurisdiction. ~.lLY. Shephard, 381 Pa. 405,113 A.2d 261 (1955). WHEREFORE, Defendants Borough ofShippcnsburg, Shippcnsburg Borough Council, and Shippensburg Borough Authority requcst this Honorable Court to dismiss Plaintiff Cumberland- Franklin Joint Municipal Authority's Complaint for non-joinder of necessary parties. 3 , . .' , .' ' .'. : , 'j"", . ,:\ " .,'. . 1 ' . " '.'., ~ I.. " :._, ,.'" . ' : :' '.: . '. , -'~.4'-'t"- ;-'-~ . .:! _ .......IL.' ~ ....J .... II. rllliLlMlliARYJJ.Il.JECTIONS IN THE NA TlJRE OF A DEMURRER I c.. COllnls Ilhrough IV of PlaintiffCFJMA's complaint allege that the Borough's selection and mcans and mcthods of plant upgrades to the Borough's Wastewater Treatment Plant are unncccssarily cxpcnsivc, wastcful, impractical, and excessive. 17. Counlll of PlaintiffCFJMA's Complaint requests a pennanent injunction enjoining IlclCllllanls li'om procecding with upgrades to the Borough's Wastewater Treatment Plant on the hasis lhallhc proposcd building plan is wastcful, impractical, unnecessary and excessive. In addition, ('ounl II ofPlaintiffCFJMA's requests a pennanent injunction requesting that the Borough be cnjoincd (j-olllmaking any capital improvements pending lhe Court's detennination of whether the 1'>77 Agrccment bctween the parties is void and/or voidable as a matter oflaw. 18. Count III ofPlaintiffCFJMA's Complaint requesls an equitable reduction in CFJMA l'llnlrihutions on the basis that the Borough's proposed phased upgrade plan is unnecessarily cxpcnsive and fails to reasonably and fairly take into consideration CFJMA constituent nccds. 19. PlaintiffCFJMA's Complaint fails 10 state a cause of action upon which equitable relief may he granted. The facts alleged in Plaintiffs Complaint and the relicfrequested do not show requisite c1cments nccded for the equitable relief of an injunction as requested by PIaintiffCFJMA. Plaintiff CFJMA fails to state a cause of action allegations in the absence of fraud, arbitrary considerations or capricious belicfs involves the discrction and judgment of elected officials for which no court may substitute its judgment for that of such officials. Hyam. et al "'s. Upper Mont~omeIY Joint Authority. 399 Pa. 446, 160 A.2d 539 (1960). 4 ...~ .....", _~.. ....w. ,..:., ~~-, ' " "'." .'. ..,.',., '.' ': :.' '. .' j:~,' . .' " " ,." ,: . "-,,', - , WHEREFORE, Dcfendants Borough ofShippcnsburg, Shippcnsburg Borough Council, and Shippcnsburg Borough Authority rcqucst this Honorablc Court to dismiss PlaintiffCumbcrlanrl- Franklin Joint Municipal Authority's Complaint, or, in thc allcrnativc, dismiss Counts II and III of Plaintiffs Complaint for failurc to statc a causc of action upon which rclicfmay bc grantcd. III, PRELIMINARY OBJECTIONS TO COUNT IV OF PLAINTiFF'S COMPLAINT IN THE NATURE OF DEMURRER, OR IN THE ALTERNATIVE, DUE TO THE EXISTENCE OF AN AGREEMENT FOR ALTERNATIVE DISPUTE RESOLUTION 20. In Count IV ofPlaintiffCFJMA's Complaint, PlaintiffCFJMA rcquests this Honorablc Court to cnter an Ordcr requiring all parties to arbitrate all disputes pcrtaining to capital improvements to thc Wastewatcr Trcatmcnt Plant and scwagc facilitics as wcll as cnjoining thc Borough from coml1lcncing any such improvcmcnts unlcss agrccd to in writing by CFJMA or resolvcd by Final Ordcr of an 2rbitration panel. PlaintiffCFJMA rclics upon Paragraph 33 ofthc 1977 Joint Agrecmcnt which providcs an arbitration provision for thc partics to rcsolvc disputcs among thc partics. 2 I. Plaintiff CFJMA has failed to rcqucst arbitration undcr thc 1977 Joint Agrccmcnt. 22. The 1977 Joint Agrccmcnt is spccific as to the proccdures which arc to bc followed by the partics when a disputc ariscs. 23. Count IV ofPlaintiffCFJMA's Complaint fails to state a causc of action upon which relief may be granted, or in Ihc allernative, involves an agrccmenl oflhe parties for altcmative dispute resolution via arbitration. 24. PlaintiffCFJMA has failed to avail itself oflhe arbitration provision contained in the 1977 Joint Agreemcnt and has faikd to exhaust its administrativc rcmcdics. 5 '~-I . : I .' . )."., .'j' - . " . . :, ~..".' , . . ' . , . ,~ ',' . \ . . '.' '. . WHEREFORE, Dcfcndants Borough ofShippcnsburg, Shippcnsburg Borough Council, and Shippcnsburg Borough Allthority request this Honorable Court to dismiss Plainti ff Cumbcrland- Franklin Joint Municipal Authority's Complaint, for failure to statc a causc of actioll upon which relief may bc grantcd. IV. PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMI'LAINT FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT 25. Counts I through IV ofPlaintiffCFJMA's Complaint fail to state facts constituting a causc of action against Defendants upon which equitablc relief may be granted. 26. The faets allegcd in PlaintiffCFJMA's Complaint do not establish requisite e1cments nccdcd for the equitable relief of an injunction as requested by Plaintiffs. PlaintiffCFJMA has filcd this action in equity. 27. Count I ofPlaintiffCFJMA's Complaint rcqucsts this Honorablc Court to rcndcr a dccisiun as to whcthcr a contract exists among the partics and, in thc evcnt a contract cxists bctwccn 28. An action bascd upon thc existence of a contract or an interprctation of a contract ,- I I the parties, requests the intcrprctation ofthc contract. involves an actions are action at law. 29. PlaintiffCFJMA has an adcquatc rCl11edy at law. 30. This Honorable Court is precluded from cxcrcising cquity jurisdiction in ordcr to grant injullctive relief if an adequate remcdy at law exists. Bronstein v. Sheopard, 50 POl. Cmwlth. 199.412 A.2d 672 (1980). WHEREFORE, Defcndants Borough of Shippcnsburg, Shippcnshurg Borough Council. and Shippensburg Borough Authority rcqucst this Honorable Court to dismiss Plain\iffCumbcrland- 6 ._r- . '. "!.' ,,: ' " . ' ' ,.,,' l. 'J":' ." '. ~". . J , ' )' ., , Franklin Joint Municipal Authority's Compluint, for fuilurc to stutc a causc of uction upon which rclicf may bc grantcd. V, PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE, OR IN THE ALTERNATIVE. MOTION FOR A MORE SPECIFIC PLEADING 31. Paragraph 13 ofPlaintiffCFJMA's Complaint allcgcs that Shippcnsburg Borough Council has consistcntly rcfuscd to cngagc constructively orwith good faith with CFJMA und its mcmbcr conscitucncies, and as such, thc Borough Council refuses to view any actions that are beneficial to CFJMA's constituent l11embcrs as benefiting the community as a whole. 32. Paragraph 14 ofPlaintiffCFJMA's Complaint alleges that a majority of Borough C'llIncil's current individualmcmbcrs acknowledge that the cxisting Intergovcmmental Agrccl\1ent is inadequate for addressing thc relationship between the Borough, Borough Authority, CFJMA and its constituent members. 33. Paragraph 15 ofPlaintiffCFJMA's Complaint statcs that all parties to this action acknowledge the inadequucy of the existing agreement whcn they cntercd negotiations to replace the 1977 Joint Agrecment. 34. Paragraph 16 ofPlaintiffCFJMA's Complaint allegcs that Borough Council has declared ncgotiations for a ncw agrcclllent to bc at an end. 35. Paragraph 23 ofPlaintiffCFJMA's Complaint allcges that bccause the 29.9% cupital contribution from CFJMA and 9.9% from Shippensburg University, the Borough Council appears to tuke thc position that it is only in fact responsiblc for payment of 60% of the costs. As such, thcre appears to be no motivation 10 on the Borough's part to attempt to rcduce or limit cxpenscs. 7 j;-.J'--, ~'. _,. . , '" -, ," " " '. I ' '.- " ,',. '. , 36. Paragraph 38 of Plaintiff CFJMA's Complaint alleges that ovcr lhc coursc of the past two years, the Borough and CFJMA havc bccn attcmpting to ncgotiatc a ncw Intcrgovcmmcntal Agrccmcntthat would crcatc a rcgionalmunicipal authority that would replacc the cxisting, outdatcd agrccmcnl. Paragraph 40 ofPlaintiffCFJMA's Complaint allcges that during the coursc ofncgotiations betwcen the Borough and CFJMA ovcr the proposcd regional municipal authority, the Borough agrccd to make no additional capital improvcmcnts to the Wastewater Treatment Plant until ncgotiations had been finalized, with thc cxception of the purchase of a belt filter prcss rcplacemcnt which was constructed prior to commcnccment of negotiations. 37. Paragraph 42 ofPlaintiffCFJMA's Complaint alleges thc Borough, howcver, in direct contravcntion of its agreement to ccasc other capital improvcmcnts to thc Wastewater Trcatmcnt Plant until ncgotiations wcrc camp let cd, ncvcrthcless procccded with plans to purchasc and install thc new belt filler press and an cntircly ncw facility locatcd across Avon Drivc from the Plant, rcquiring considerable and unncccssary additional costs for the installation ofthc ncw press. 38. Paragraph 43 ofPlaintiffCFJMA's Complaint alleges that CFJMA advised thc Boroagh carly in negotiations that it considered the new facility to be a wasteful undertaking. 39. Paragraph 57 ofPlaintiffCFJMA 's Complaint alleges that therc cxists antagonistic claims betwcen the partics which present the possibility of imminent and protractive litigation. The abol'c paragraphs of PlaintiffCFJMA 's Complaint includc scandalous or impcrtinent malleI' and should be stricken. WHEREFORE, Defendants Borough ofShippcnshurg, Shippensburg Borough Council, and Shippenshurg Borough Authority request this Honorahlc Coun to strikc Paragraphs 13,14,15.16, 8 23,38,40,42,43, and 57 from PlaintiffCFJMA's Complaint, or in the altcmative, movc that Plaintiff set forth with spccifieity, allcgations to which Dcfendants arc ablc to ans\Vcr or adcquatcly prepare a dcfcnse. Respectfully submiltcd, SALZMANN & DePAULlS, P.c. . Bry n Attomey f, r 2ts ..... Altomey ID 35 ------ 1580 Gablcr Road, P.O. Box 276 Chambersburg, PA 17201-0276 (717) 263-2121 105 NOlth Front Street, Suite 20 I Harrisburg, PA 17101 (717) 232-9420 9 ...., -..-. , . ' " , '.' 1 ',.;. ." Ii .:, ,. - : '. " . .' , '.,,', .: . . .' <, , CERTIFICATE OF SERVICE I hcrcby ccrtify that I have, this I;/ I 'day of January, 1999, scnt a true and corrcct copy of the forcgoing Dcfendants' Preliminary Objcctions to PlaintifCs Complaint via Unitcd Statcs Mail, first class, postage prepaid addressed as follows: David A. Fitzsimons, Esquirc Anthony Lucido, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, P A 17 I 10-0950 Salzmann & DePaulis, p.e. 10 ~. ."-r::- . '. :., .' : . . \ ',,' : ~.. .,', '. ,'.1 ", ' . . :. . . , . ".' ' ,",' I' r , \ \ . . . . - ".1 > .'_ .' . , ' . :i ~ . - "'. . . " ' l \' ',':. ,,( , ( , , I I I '. ~ ,;...1-" ,_ '_ '.' .~ ....". ~-~ ~~ ,,- .' ..,., CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY, Plaintiff v. BOROUGH OF SHlPPENSBURG, SHlPPENSBURG BOROUGH AUTHORITY al1d SHlPPENSBURG BOROUGH COUNCIL, Defel1dal1ts IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA (;- n. ~!I'J" (.' 1 .' . < ./..J ,... '- J .J-' ..~_) '__(('CI ! CIVIL ACTION IN EQUITY PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: PLEASE mark the above-captioned action as discontil1ued. Date: January 26, 1999 Respectfully submitted, By: ME1vrE, EV~. S WOODSIDE \- ~.~. -- , / David A. Fitzsimons Sup. Ct. J.D. #41722 Anthony T. Lucido Sup. Ct. J.D. #73778 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 " '. .' , . : ,": .... " . . ." . . ~ ,- > : .'" . " -,', '[.,', .:,' , " . . '," ,', . - . .' ~, , " . - . " ' . . " ~~- .-', " Attorneys for Plaintiff "'i\.M.o- ;..J';I~ '. '" .- CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document UpOl1 the persol1(s) and il1 the mal1ner indicated below, which service satisfies the requirements of the Pel1nsylval1ia Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: G. Bryan Salzmann, Esq, Salzmann & DePaulis, P.C. 1580 Gabler Road P.O. Box 276 Chambersburg, PA 17201-0276 Forest N. Myers, Esquire Borough of Shippensburg 10000 Molly Pitcher Highway Shippensburg, PA 17257 ~~~~ODSIDE ", \ By: '\ :; .. ..-;; .~ David A. Fitzsimons Sup. Ct. LD. #41722 Anthony T. Lucido Sup. Ct. I.D, #73778 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Date: January 26, WBH 171f,ti9 . . . "L,. " _ ',: ' " . " . '. '"" _:, ,'... . ~. 't '. '~""" . .' . , . ~ .,-: .',,' <: , , .'