HomeMy WebLinkAbout03-1735SHIPPENSBURG BOROUGH,
Plaintiff
Vo
CUMBERLAND-FRANKLIN JOINT
MUNICIPAL AUTHORITY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Docket
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SHIPPENSBURG BOROUGH,
Plaintiff
CUMBERLAND-FRANKLIN JOINT
MUNICIPAL AUTHORITY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Docket No. ~3 ~ I '~ ~D~
COMPLAINT
1. Plaintiff is the Borough of Shippensburg (hereinafter "Borough"), a municipality
organized under the Pennsylvania Borough Code, located in Cumberland County and Franklin
County, with a principal place of business at 111 North Fayette Street, Shippensburg,
Pennsylvania, 17257 in Cumberland County.
2. Defendant is the Cumberland-Franklin Joint Municipal Authority (hereinafter "CFJMA"),
a joint municipal authority organized under the Municipality Authorities Act, with a principal
place of business at 725 Municipal Drive, Shippensburg, Pennsylvania 17257.
3. The Borough leases from Shippensburg Borough Authority, a municipal authority, a
wastewater treatment plant (hereinafter "WWTP") and sewage collection system that the
Borough operates and maintains.
4. CFJMA owns, operates and maintains a sewage collection system serving the four
municipalities that comprise the joint authority - Southampton Township, Franklin County;
Borough of Orrstown, Franklin County; Southampton Township, Cumberland County; and
Shippensburg Township, Cumberland County.
5. On January 15, 1977, Shippensburg Borough Authority, the Borough, CFJMA and its four
municipalities entered into a Joint Agreement (attached hereto as Exhibit "A").
6. Under the Joint Agreement, the Borough utilizes sections of CFJMA's sewage collection
system and shares in the cost for operating and maintaining the system.
7. Under the Joint Agreement, CFJMA utilizes sections of the Borough's sewage collection
system and shares in the costs for operating and maintaining the system.
8. Under the Joint Agreement, the sewage collected by CFJMA from the four municipalities
is treated at the Borough's WWTP and CFJMA shares in the costs for operating and maintaining
the WWTP.
9. The Joint Agreement was amended by the First Amendment to the Joint Agreement
(undated) (attached hereto as Exhibit "B") and the Second Amendment to the Joint Agreement.
10. The First Amendment revised the Joint Agreement as to the method for proportioning
the operating and maintenance costs between the Borough and CFJMA for their respective
facilities, and the procedure for billing the costs.
11. As set forth by the First Amendment, the Borough bills CFJMA on a quarterly basis for
its share of the operation and maintenance costs for the WWTP. First Amendment, Paragraph 2.
12. As set forth by the Joint Amendment, CFJMA shall pay the invoices for its share of the
operating and maintenance costs of the WWTP within thirty (30) days. Joint Agreement,
Paragraph 18.
13. Beginning with the 2002 first quarter billing, CFJMA withheld Forty-One Thousand
Nine Hundred and Five Dollars ($41,905.00) from its payment to the Borough for CFJMA's
share of the operating and maintenance costs for the WWTP.
14. CFJMA has withheld from its payments to the Borough a total of One Hundred Twenty-
Five Thousand Seven Hundred Fifteen Dollars ($125,715.00), $41,905.00 for first quarter, 2002;
second quarter, 2002 and third quarter, 2002.
15. The quarterly bills were mailed to CFJMA on the following dates:
First quarter 2002 - June 12, 2002
Second quarter 2002 - September 9, 2002
Third quarter 2002 - November 25, 2002
16. The Borough has demanded from CFJMA payment of the monies withheld by CFJMA.
17. CFJMA has not paid the monies it has withheld from the mount due for the quarterly
bills for first, second and third quarters, 2002.
18. CFJMA's failure to pay the Borough for its share of the operating and maintenance costs
of the WWTP within thirty (30) days of receipt of the quarterly invoices is a breach of the Joint
Agreement and its amendments.
19. The Borough by its treatment of CFJMA's sewage at the WWTP has provided a service
to CFJMA for which CFJMA has not paid the Borough.
20. During the period CFJMA has withheld monies due the Borough, the Borough has lost
the use of the monies and the interest it may have gained from these monies.
21. Under Paragraph 18 of the Joint Agreement, if payments are not made wi. thin thirty (30)
days after the due date, a penalty of five percent (5%) of the outstanding balance is assessed.
22. For each subsequent quarterly billing after CFJMA withholds $41,905.00 from its
payment, the amount withheld is subject to the five percent (5%) late penalty as provided for by
Paragraph 18 of the Joint Agreement.
23. By CFJMA's failure to pay $41,905.00 when due, the monies withheld are subject to the
following penalties which continue to accrue.
Second quarter - 2002: 5% penalty on $41,905.00 = $2,095.25
Third quarter - 2002: 5% penalty on $83,810.00 = $4,190.50
Fourth quarter- 2002: 5% penalty on $125,715.00 = $6,285.75
First quarter- 2003: 5% penalty on $125,715.00 = $6,285.75
TOTAL PENALTY = $18,857.25
24.
forth.
25.
COUNT I
BREACH OF CONTRACT
Paragraphs 1 through 23, inclusive, are incorporated herein by reference as if fully set
As a result of its breach of the Joint Agreement for its failure to pay for services rendered
by the Borough, CFJMA owes the Borough the following:
Monies withheld - $125,715.00
Penalty for late payment - $18,857.25
Total - $144,572.25
WHEREFORE, Plaintiff Shippensburg Borough requests an award of compensatory
damages against Defendant Cumberland-Franklin Joint Municipal Authority in the amount of
$144,572.25, plus interest.
Respectfully submitted,
SALZMANN, DEPAULIS & FISHMAN, P.C
By:
Attorney ID# 61935
William W. Thompson, Esquire
Attorney ID# 62482
455 Phoenix Drive; Suite A
Chambersburg, PA 17201
(717) 263-2121
Counsel for the Borough of Shippensburg
VERIFICATION
I verify that all the statements made in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief and that any false statements
made are subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn
falsification to authorities.
Date:
W~lliam W.-Wolfe,~l~rough Manager
$OINT AGRE£,~,~ENT
THIS $OI/%VT A~, 'dated as of January 15, 1977, between
CUMBE~-F~N~ JOINT ),IUNIClPAL AUTHORITY and the TO~v'NS}IIP OF
SOUTHAIV~TOI~ and the BOROUGIJ OF ORRST'OWIq, both located i'n Franklin County.
Pennsylvania, and the TOWI~SHIP OF SHIPPEI~SBURG and the TOWNSHIP OF
SOUTHAA,~PTOAT, both located in Cumberland County, Pennsylvania, pa~'ties of the
first part, on the one hand, and the BOROUGH OF SHIPPEIqSBURG, CUmberland
and Franklin Counties, Pennsylvania. and SHIPPE/qSBUI'tG BORouGH AUTHORiTy.
parties of the second part. on the other hand.
WITAIEsSETH:
WHEREAS, Borough 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 CFJ~./A have determined
that it is necessary, in order to benefit and preserve the public health and general
welfare of citizens of the Adjacent ~.tunicipalities, that CF,D. IA construct the CFJ~.iA
Facilities, in and for certain portions of the Adjacent ~lunicipalities and to otherwise
provide appropriate service facilities for the purpose of collect/on, transportation,
treatn~ent and disposal of sewage and wastes; and
WHF, REAS, The Borough and Borough Authority have been ordered
by appropriate governmental authorities that it is necessary, in order to benefit
and preserve the public heglth and general welfare of citizens of the Borough, that
Borough Authority acquire and construct the Additional Borough Facilities, and to
otherwise provide appropriate alterations, additions, improvements and extensions
for the Existing Borough Facilities for the purpose of collection, transportation, '
treatment and disposal of sewage and wastes; and "
W'HE~S, The Adjacent Municipalities and CFJI~IA, on the one hand·
and the Borough and Borough Authority, on the other hand, have determined t~at the
most efficient and practical method of prov/ding transportation of sewage and wastes
emanatin'g/row, certain areas of the Borough, and o~" prov/d/ng trans,-.-..-'ation and
treatment of sewage ~nd wastes emanathl~ from certain areas of the A~jacent
Municipalities and the Borough° respectively, is/oF CF,TMA to acquire, to construct
and to operate, as appropriate, certain sewage transportation facilities, as part of
the CFSM~ 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,
as appropriate, certain sewage transportation and treatment'facilities, as part of
the Existing Borough Facilities and the Additional Borough Facilities, which will
also provide necessary sewage transportation and treatment services for CFJI~/A in,
for and through portions of the Adjacent Municipalities.
NOW, THEREFORE, C:F~MA 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:
!. The following terms and phrases, for the purposes of this Yoint
Agreement, shall have the following meanings, unless the context clearly otherwise
requ/res:
"Additional Borough Facilities" shall mean certain alterations,
additions, improvements and extensions to the Existing Borough Facilities, including
the Borough Joint Facilities, and including all related and necessary facilities, to be
constructed and owned by Borough Authority in or adjacent to the Borough, in
accordance with plans and specifications prepared by the firm of Gannett Fleming
Corddry and Carpenter, Inc., Consulting Engineers, Harrisburg, Pennsylvania,
including all future additions and improvements thereto, all of which shall be
deemed to be owned exclusively by Borough Authority.
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SAd~acent Municil~alities" 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 Shippensburg, both located in
Cumberland County, Pennsylvania.
"Borou.~ha shah mean the Borough of Shippensburg, Cumberland and
Franklin Counties, Pennsylvania, a Pennsylvania municipal corporation.
aBorou[~h Authorit},~ shall mean Shippensburg Borough Authority,, a
munic/'pality authority of the Commonwealth, established by appropriate action of
the Bo~ugh.
eBorou~lh Facilitiesu shall mean the Existing Borough Facilities together
with the Additional Borough FaciLities, aH of which shall be deemed to be owned
exclusively by Borough Authority; excluding however, facilities governed by
parasraph 19.
~Borou~h Jo,mt Facilities# shall mean the sewage collection,
portation and t~eatment and disposal facilities, including a sewage treatment plant.
described and referred to in Exhibit aA" and shown and located on Exhibit "C
both attached hereto, and made part hereof, all of which shah be deemed to be
owned exclusively by Borough Authority; excluding, however, facilities governed
by paragraph 19.
"CFJMA" shah mean Cumberland-Franklin Joint ~iunicipal Authorit]~,
a municipalitlr authority of the Commonwealth, established by appropriate action
of the Adjacent Municipalities.
"CFJMA 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.
~CFJ~ Facilitiesn shall mean the sewage collection system and
sewage transportation facilities, including the CFJ?.-IA Joint Facilities, and including
all related and necessary facilities, to be constructed and o~med by CFSMA in and
adjacent to the Adjacent Municipalities. in accordance with plans and speci£ications
prepped by the firm o/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 CFJMA pursuant
to paragraph 19. all of which shall be deemed to be owned exclusively by CFJMA.
SCommerci~ Establishments, 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, clubrooms, fire
houses, professional offices, banks, schools or other room, group of rooms, building
or enclosure not constituting a Residence or Industrial Establishment.
nC~omm~nwe~th,n Shall mean the Commonwealth of Pennsylvania.
~Cost of C,onstructton# shall mean the actual cost or the estimated
cost. as applicable, of the portion or section of CFJlVlA Facilities. or the Additional
Borough Facilities. as appropriate, under consideration, calculated in the following
manner:
A. The amount actually paid or estimated to be paid, as
applicable, under the contract or contracts for construction of
the portion or section of the CF~, Facilities or the Additional
Borough Fa~ities, as appropriate, under consideration shall
be determined.
B. The amount actually paid or estimated to be paid,
as applicable0 under all contracts for construction of the
CFT/~L~ Facilities. or the Additional'Borough Facilities, as
appropriate, shall be determined.
C. The amount determined in subparagraph A above
shal! be divided by the amo~t determined in subp~agraph
a~ve ~ dete~ne ~e ra~o ~ ~e actua~ or estimated
c~s~uc~o~ cost, aa applicable, of ~e port,on or section of
~e ~ Facilities or ~e Additional BO~ugh Faci~es, as
appropriate. ~der consideration bears ~ ~e ac~ or es~mated
~ns~uc~ cost. as aPp~cable, of ~e en~e ~F~.~ Fac~li~es
or ~e Additional ~o~ugh Fac~fies, as appropriate.
O. A~ acta] ~ estimated engineering and legal costs
and e~enses and o~er costs, including interest on interim
fin~g, as applicable, at~ibutab]e under sold account~g
~d enginee~g practice ~ cons~ucfion, but not permanent
fi~nc~g, of ~e CFJ~ FaciLi~es ~ ~e Addi~onal Bo~ugh
Facili~es, as appr~riate, less an aPPropriate cre~t for interest
e~ed, s~ be determined.
E. The percen~ge dete~ined in subparagraph C above
shall be app~ed ~ ~e tot~ coS~ ~d expenses determined in
subparagraph D above to dete~ine ~e actual or es~mated
eng~eering and legal costs and e~enses, as applicable,
at~ibu~ble to the portion or section of the CFJb~ Facilities
or ~e Addi~onal Borough Fac~l~es, as appropriate, ~der
considera~on.
F. All actual or estimated costs and expenses, as applicable.
of acquiring land, rights of way, Privileges, rights, licenses,
easements and other interests in real Property, including w~thout
intending to limit the generality of the foregoing, legal, engineering.
sUrveying and related costs and expenses, and an aLlov~ance for interest
at the rate of 6% per annum, from the date of payment thereof, to the
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oo
date the capital payment required by paragraph 16 is paid. on
sums paid for engineering fees for engineering services, in each
case d~rectly attributable to the portion or section of the CFJ~A
Pac".'.'-?ies or the Additional Boroush Facil.i*.ies, as appropriate.
under consideration shall be determined.
G. The sums determined in subparagraphs A, E and F
above shall be added and the total of such sums shall represent
the actual NCost of Gonstruciionm or the estimated "Cost of
Constructions, as applicable,, of the portion or section of the
CFJIiA Facilities or the Additional Borough Facilities, as appro-
priate, under consideration.
#Domestic Sewage~ shall mean normal domestic water carried
sewage and wastes, with concentrations not exceeding 210 milligrams per liter of
$ day biochemical oxygen demand, 220 milligrams per liter of total suspended solids,
30 milligrams per liter of total phosphate or 20 millisvams per liter of amonia nitrogen.
"Existin~ Borough Facilities~ shall mean the sewa[~e collection, trans-
portation, treatment and disposal facilities, includin~I the existing sewage treatment
.plant, heretofore acquired or constructed by Borough and/or Borough Authority
and heretofore leased to the BorouEh for operation and use, including all related
and necessary facilities, all of which shall be deemed to be owned exclusively by
BorouEh Authority, excluding, however, facilities I~overned by paragraph 19.
"Fiscal Year" shall mean the period of twelve months bei;inning
January I of each year and also shall mean any initial period of less than 12 months,
if applicable, under consideration ending on the next succeeding December 31.
"Grant A~reement" shall mean any agreement between any Eovernmental
agency of the Commonwealth of Pennsylvania or the United States of America, and the
BorouEh or Borough Authority or any of the Adjacent Municipalities or CFJMA. as
appropriate, or any law. regulations, ruling, determination or procedure of or
administered by any such agency governing or with respect to 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
Facilities or Additional ]~orough Facilities. or the CFJ'MA Facilities. as appropriate.
or any alterations 0 additions, improvements or extensions thereto.
~Industrial Establishment~ shall mean any room, group of rooms,
building establishment or.other enclosure or facility connected, directly or indirectly.
to any sewer of CFJMA, which sewer discharges sewage and wastes, directly or
indirectly, to the Exist'lng Borough Facilities and the Additional Borough Facilities
and used or intended for use. in whole or in part. in the operation of a business
enterprise for manufacturing, processing, cleaning, laundering or assembling any
product, commodity or article or from which any process waste, as distinct from
normal water carried household and toilet wastes, shall be discharged, and also
including any party or person identified or classified as an nindustrial user" put=
suant to provisions of any Grant Agreement.
"Industrial Wastess shall mean all sewage or wastes which exceeds
the strength of Domestic Sewage, as herein defined.
"Residence" shall mean any room, group of rooms, house trailer or
other enclosure occupied or intended for occupancy as separate living quarters by
a family or other group of persons li~ng together or by persons living alone.
~~ ~ CFJ~A covenants to construct the CFJ~vlA Joint Facilities, as defined
in paragraph ! hereof, constituting part of the CF$~/IA Facilities, in accordance with
plans and specifications prepared by th'e firm of Arrowood Incorporated, Consulting
Engineers, Chambersburg. Pennsylvania, and in accordance with provisions hereof.
or in accordance with such changes or modifications as do not make substantial
changes in such plans or specifications or as are approved by Borough Authority.
CFJMA covenants to use its best efforts to commence and to complete
construction, respectively, simultaneously with commencement and completion o£
construction by Borough Authority~ CF~.O~ covenants to settle necessary financing
contemplate~ ~.ereunder to be undertaken by it si,::ultaneously with t~.e settlement
of necessary financing by Borough Authority of construction contemplated hereunder
to be undertaken by Borough Authority; and CFJMA covenants that it will specify in
writing suc~ simultaneous settlement date, within 30 days ~fter receipt of notice of
approval to award con'acts related to the Borough ~Yoint Facilities has been received
by Borough Authority fi'om Environment~ Protection Agency, United States of America.
pursuant to the applicable Grant Agreement.
3. A. The parties hereto agree that the CFJMA Facilities, including,
inter alia, all future additions and improvements thereto, initially will be operated.
maintained and repaired' by CFSMA.
B. The Adjacent Municipalities each agree that to the extent required.
in connection with financing to be undertaken by CF.TI~A to provide funds necessary for
acquisition and construction of the CF~MA Facilities. they shall enter into any required
Lnstruments, that they shall undertake necessary legal proceedings with respect thereto,
and that they shall adopt such ordinances, including a mandatory connection ordinance,
and take other required action, all to the extent permitted by law.
4. Borough Authority covenants to construct the Borough Joint
Facilities. as defined in paragraph I hereof, which constitute part of the Additional
Borough Facilities, in accordance with plans and specifications prepared by the
firm of Gannett Fleming Corddry and Carpenter, Inc., Consulting Engineers,
Harrisburg, Pennsylvania, and in accordance with provisions hereof, or in accordance
with such changes or modifications as do not make substantial changes in such plans
or specifications or as are approved by CFSMA.
Borough Authority covenants to use its best efforts to commence and
to complete construction, respectively, simultaneously with commencement and
completion of construction by CFtC. A; Borough Authority covenants to settle necessary
fi~ancing contemplated hereunder to be undertaken by it. simultaneously with the
settlement of necessary financing by CF~MA of construction contemplated hereunder
to be undertaken by CFJMA; and Borough Authority covenants that it will specify
in writing such simultaneous settlement dates, within 30 days after receipt of notice
of approval to award contracts, related to the CFJ}IA Joint Facilities. has been
received by CFJI~.iA from the Environmental Protection Agency, United States 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 a~reement of lease, under which agreement of lease the Borough Will, inter
alia. operate..maintain and repair said facilities. 'The parties hereto agree that
CFJMA 3oint Facilities and CFJMA Facilities, including all future additions and
improvements thereto, shall be constructed, operated, maintained and repaired
by CFJMA. as an operating Authority, during the term of this Joint Agreement,
unless and until the instruments transferring such CFJ]~.A Facilities or CFYMA
Joint Facilities provides for assumption of the obligations set forth in this $oint
Agreement.
$. CYJ}.IA covenants that upon receipt of a letter of its consulting
engineers stating that the CF~/~A 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 such fact and CF3IVIA. upon payment of all
sums then due to CF~IA by Borough or Borough 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 $oint Facilities during the term of
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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 "Be
hereto.
CFJMA agrees to advise Borough. in writing, the first time the
'flows of sewage and wastes from the Eorough Facilities are approximately 85
· percent of Borough~s reserved, capacity in the CFJ~.LR Joint Facilities. ~';hen the
. / average of the actual measured daily flows or peak instantaneous flows, as applicab]c.
' from the Borough Facilities to the CFJ~fA Joint Facilities exceeds, for a period
/
of thirty consecutive days, Borough~s reserved capacity in the CFJMA Joint Facilities.
CFJ1~A sha/l give Borough thirty days written notice to terminate such flows, and,
thereafter. Borough shall pay to CFJ~.~aa, 12S percent of the charges imposed in a~cordance
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 d~ly flows or peak instantaneous ~ows, as applicable, o£
the Borough, over a period of sixty consecutive days. are reduced below the level
of its reserved capacity in the CFJ~.~A Joint Facilities. In the event such excess
flows are not terminated within ninety days of receipt of notice of termination of
excess flows 0 as above provided, the charges for transportation of such excess
flows shall be increased from ll5 percent to lBS percent of the charges imposed
in accordance herewith for transportation services, for each day thereafter unti!
said excess flows are terminated; Provided, however, acceptance of such surcharges
shall not in any way restrict the right of CFJ~.~,A to exercise any remedy lit law or
in equity to restrain Borough and/or Borough Authority from exceeding such reserved
capacity.
CFJ[vfA grants to Borough Authority, the Borough, and residents
of the Borough, as appropriate, during the term of this Joint Agreement, the right
to connect the Borough Facilities and the Facilities of said residents to the CFJ~A
Facilities at the points shown on the plan attached hereto, made a part hereof and
marked as Exhibit eCn or at such other point or points as shall be agreed upon by
the parties hereto, from time to time in writing.
7. Borough Authority covenants that upon receipt of notice from
CFJI~JA stating that the CFJ}IA Facilities are sufficiently complete to receive and
transport sewage and wastes from the Borough Facilities and facilities of residents
-
of the Borough, as appropriate it will cause the Additional Borough Facilitics to
be completed, if not theretofore completed, and will afford the consulting engineers
of CF,IMA reasonable opportunity to inspect the Additional Borough Facilities at the
sole expense of CFJMA. Upon receipt of notice from CFSMA to connect all or specified
portions of Borough Facilities to the CF~I..{A Facilities, which notice to connect shall
be given after Borough Authority's consulting engineers shall have certified corn-
pletion thereof, Borough Authority covenants to cause the Borough Facilities to be
connected and residents o.~ the Borough to connect, as appropriate, to the CFJ~iA
Facilities, as set forth in Paragraph 6 hereof, such connections to be made within 30
days of receipt of such notice h'om 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-
rained at the sole cost and expense of Borough Authority or the l~orough, as
appropriate.
8. Borough Authority covenants that upon receipt of a letter of its
consulting engineers stating that the Borough Facilities or any po. trion thereof are
sufficiently complete to receive, to transport, to treat and to dispose of sewage and
wastes from the CFJMA Facilities, or residents of the Adjacent Municipalities, as
appropriate, it promptly will give notice to CFJ~iA of such fact and Borough Authority
or the Borough, as appropriate, upon payment of all sums then due to Borough
Authority by CFJ~VIA under paragraph 15 hereof, will receive, transport, treat and
dispose of sewage and wastes from the CFJ}.IA Facilities, or residents of the Adjacent
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Municipalities, as appropriate, with the Borough Joint Facilities, during the term of
this Joint Agreement, in a manner approved by the Pennsylvania Department of
Environmental I~esources, any other governmental body having-juris di ct~on.
subject to the terms, conditions and limitations hereof, including Schedule "Au
hereto .'
Borough agrees to advise CF$~.~A, in writing, the first ~ime the flows
of sewage and wastes fi'om the GFJ~IA Facilities are approximately 85 percent of
CFJMA 's capacity in the Borough Joint Facilities. 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, Borough shall
give ~FXMA thirty days written notice to terminate such flows, and, thereafter,
C'F~,A shall pay to Borough. 115 percent of the charges imposed in accordance
herewith, with respect to the transportation and treatment of such excess flows,
for each such day, plus any fines levied by the Pennsylvania Department of Environn~ental
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 flows, as appli-
cable, of CFJI~4A, over a period of sixty consecutive days, are reduced below the
level of its reserved capacity in the Borough Joint Facilities. In the event such
excess flows are not terminated within ninety days of receipt of notice of termination
of excess flows, as above provided, the charges for transportation and treatment
of such excess flows shall be increased fi'om 115 percent to 125 percent of the charges
imposed in accordance herewith for transportation and treatment services, for
each day thereafter until said excess flows are terminated; Provided however,
acceptance of such surcharges shall not in any way restrict the right of Borough
to exercise any remedy at law or in equity to restrain CFJ~A from exceeding such
reserved capacitY.
Borough Authority grants to CFJ~, the Adjacent Municipalities
and residents of the Adjacent Municipalities, as appropriate, during the term of
this ~otnt Agreement, the right to connect the CFJM~. Facilities to the ."~ ::rough
Facilities at t}i.-, points shown on the plan attached h.~reto, mad-. a par: ~er~.of and
marked as Exhibit nC~ ~r at such other point or points as shall be agreed UPon by
the parties hereto, from time to time, in writing.
- 9. CFJMA covenants that upon receipt of notice front Borough
Authority stating that the Borough Facilities are sufficiently contplete to receive
and transport sewage and wastes from the CFJt, iA or residents of the Adjacent
Municipalities, as appropriate, it will cause the CFJMA Facilities to be completed.
if not theretofore completed, and will afford the consulting engineers of Borough
Authority reasonable opportunity to inspect the CFJMA Facilities at the sole expense
of Borough Authority. Upon receipt of notice from Borough Authority to connect
all or specified portions of the CFJMA Facilities, to the Borough Facilities. which
notice to connect shall be given after CFJMA's consulting engineers shall have
certified completion, C~F$1~iA covenants to cause said portion oi the CF, MA Facilities
to be connected, and residents of the Adjacent Municipalities to connect, as appro-
priate, to the Borough Facilities, as set 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 CFJ~IA. or of such residents of the Adjacent Municipalities.
as appropriate. Such connections shall be maintained at the sole cost and expense
of CFJMA.
10. CFJMA 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-
mente'on financings re~erred to in paragraphs 2 and 4, a photostatic copy of any
requi~ed permit or approval from the Sanitary Water B~ard or the Pennsylvania
Department of Environmental Resources and any other governmental regulatory
body having jurisdiction to construct the CF~MA Facilities and the Additional Borough
Facilities, respectively, and to connect or interconnect the CFJ~,L~ Facilities and
the Borough Facilities in a manner so as to provide for the ultimate treatment and
disposal of sewage and wastes from the CFJ%fA 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 CFJ~.~A
Facilities or discharged by residents of the Borough into the CFJMA 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 Bm-ough 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 CFJ~u~.. with this prohibition
not to apply to sewage and wastes discharged by Shippensburg State College; or
to sewage and wastes discharged by the owner of property described and referred to
in an Agreement, d~ted September 19, 1967, between the Borough and Borough
Authority, on the one hand, and J.M. $. Development Corporation, on the other hand.
12. CFJMA covenants that all sewage and wastes collected by the
CF,IMA Facilities and discharged into the l~orough Facilities or sewage and wastes
discharged by residents of the Adjacent I:lunicipalities into the Borough Facilities
will be subject to the terms and conditions of this Joint Agreement.
-.14 -
CFJ~,~ agrees to prohibit the discha~-ge of any sewage and wastes into
the CF~MA Facilities which subsequently enter the Borough Joint Facilities by any
other municip~: 7 or any other municipality authori~.?- or by any other . ~-rson. firm
or corporation located outside the area of the Adjacent ~.~unicipalities, which has
not been ~'anted prior written approval by Borough.
. 13. CFJ~A. on the one h~nd. and Borough Authority and the Borough~
on the other hand, as appropriate, covenant that no roof drainage water, storm water.
excessive ground water, infiltration° surface drainage or building foundation drainage
shall be discharged f~om 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 CFJ~A Facilities into the Borough Facilities, as appro-
priate, of the type prohibited and described in Exhibit MD~ attached hereto and made
part hereof.
14. The parties agree that in consideration for CFJMA making the
CFJ~.~, Joint Facilities available for use by Borough Authority and the Borough,
Borough Authority will make a capital contribution to CFJ~.tA, which capital con-
tribution shall be calculated in the manner hereinafter set forth. The parties agree
that the facilities constituting the CFJ'MA Joint Facilities have been initially designed
with varying design flow and/or pollutant load capacities initially allocated for CFJ~4A,
which varying design flow and/or pollutant load capacities are set forth in Exhibit
attached hereto and made part hereof. The capital contribution to be made by Borough
Authority to CFJMA, applicable to the ~FJ~,~A Joint Facilities shall be calculated in the
following manner:
A. The capital cost of each facility constituting a part of
the ~FJ]V~A Joint Facilities shown on Exhibit MB~ , attributable
to Borough Authority and the Borough, shall be calculated
separately in the following manner:
- 15 -
(1) CFJ~fA0 subject to review by Borough
Authority. shall determine the estimated Cost of Con-
struction of the facilities constituting part of the CFJMA
Joint Facilities, as shown on Exhibit ~B~ , under con-
sideration.
(2) ?he ratio which the design flow and/or
pollutant load capacity of such f4tcility constituting
a part of the CFJI~.~A Joint Facilities under consideration
reserved for 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 $oint Facilities
under consideration shall be deterr~_~ed and sh~ll be
applied to the estimated Cost of Construction of such
facility constituting a part of the CFJ?..fA Joint Facilities
under consideration determined under (1) above. ?he
result shall equal the capit~] cost of the facility constituting
a part of the CFJ~,~A Joint Facilities under consideration
attributable to Borough Authority and the Borough; Pro-
v~ded, however, that such amount shall be subject to
adjustment, ~s appropriate, ~s hereinafter provided.
B. The capital cost of all facilities constituting the CFJ~A
Joint Facilities attributable to Borough Authority and the Borough,
determined separately under subparagraph 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 =
In the event the United States of America or the Commonwealth of Penn-
sylvania, acting through any agenclr or department, shall make a grant to CFJ}.iA for
application for and toward payment of a portion of the Costs of Construction of the
CF~iA Facilitir:- , or CFJMA shall collect liquidated damages or other damages for
delaying completion of construction under any contract for construction of the CFSMA '
Joint Facilities, CFJMA0 subject to review and approval by Borough Authority, shall
determine the-portion, i~ any, of such 8rant or liquidated damages or other damages
attributable to each facility constituting a part of the CFJ}~ Joint Facilities, as shown
on Exhibit ~Ba. The portion, ii any, of such 8rant or liquidated damages or other
damages attributable to the £acility constituting a part of the CFJ}.IA Joint Facilities
under consideration shall be multiplied by the ratio which the design flow and/or
pollutant load capacity of such facility reserved £or Borough Authority and the Bm-ough
bears to the total design flow and/or pollutant load capacity o£ such £acility and the result
shall be deducted from the capital cost o£ such facility under consideration attributable
to Borough Authority and the Borough 0 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 damages
for delay in completion of construction received by CFJMA attributable to the facility
constituting a part o£ the CFJMA $oint Facilities under consideration.
15. The parties agree that in consideration tor Borou8h Authority making
the Borough Joint Facilities available for use by CFJMA0 CFJ~,IA will make a capital
contribution to Borough Authority, which capital contribution shall be calculated in
the manner hereinafter set forth. The parties agree that the facilities constituting
the Borough Joint Facilities have been initially designed with varying design flow
and/or pollutant load capacities allocated for CFJ~,fA and the Adjacent Municipality
and with varying design flow and/or pollutant load capacities initially allocated for
Borough Authority and the Borough, which varying design flow and/or pollutant
load capacities are' set £orth in Exhibit aR#, attached hereto and made a part hereof.
The capital contributions to be made by CFJ}~IA applicable to the Borough Joint
Facilities shall be calculated in the following manner:
A. The capital cost of each' facility constituting a part
of the Borough Joint Facilities shown on Exhibit ~Au, atiributable
to CFJ~iA and the Adjacent Municipalities, shall be calculated
aep~.rately in the followin~ manner:
(1) The costs of the Existing Borough' Facilities
constituting part of the Borough Joint Facilities attributable
to CF3MA and the Adjacent Municipalities and the mount to
be paid by CF~A (the cost) for the facilities to be ~-ans-
ferred to CFJ~A Under paras~-aph 19 shall be determined and
established as set ~orth in ExhLbit #A~ hereto.
(2) Borough Authority, subject to review by. CFJ~,~,A,
shall determine the estimated Costs of Consu-uction of the
Additional Borough Facilities constituting a part of the
Bcn'ough Joint Facilities, as shown on Exhibit NA~, under
consideration.
(3) The ratio which the desitin flow and/or
pollutant load capacity of such Additional Borough
Facilities constituting a part of the Borough Joint
Facilities under consideration reserved for CFJI~(A bears
to the total design flow and/ch- pollutant load capacity of
such Additional Borough Facilities constituting a part of
the Borough $oint Facilities under consideration shall be
determined and shall be applied to the estimated Cost of
Construction of such facility constituting a part of t~e
Borough $oint 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 -
vided: however, that such amount shall be subject to
adjustment, as appropriate, as hereinafter provided.
B. The capital costs of all facilities constituting the Borough
Join~- ?acilities attributable to CF~MA detc:-mined separately '..nder
subparagraph A above, shall be added and the total shall c,....;I the
capital contribution to be made by CF,TI~iA to Borough Authority appli-
cable to the Borough Joint Facilities.
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 the Costs
of Construction of the Borough Joint Facilities, or the costs of Borough Joint Facilities
governed by subparagraph A (1) above, or Borough Authority shall collect liquidated
damages under any contract for construction of the Borough ,loint Facilities, Borough
Authority, subject to review and approval by CFJMAo 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 portion, if any.
of such grant or 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 facility reserved for
CFJMA and the Adjacent l~lunicipalities bears to the total design flow and/or pollutant
load capacity of such facility and the result shall be deducted from the capital c;st of
such facility under consideration attributable to CFJ1/IA and the Adjacent Municipalities.
as calculated under subparagraph A of this paragraph 15, it being the intent of the
parties that CFJMA shall receive a credit for its proportional share of any grant
or liquidated damages received by Borough Authority attributable to the facility
constituting a part of the Borough Joint Facilities under consideration.
16. The. capital contributions to be made by Borough Authority to
CFJMA and by CFJMA to Borough Authority, respectively, under paragraph 14 and
- 19 -
paragraph 15. respectively, shall be payable in ~ull on the mutually agreed upon
settlement date, determined under paragraphs 2 and 4 hereof, on which necessary
financing of both CFJI~A and Borough Authority is settled and closed, subject to
final adjustments as hereinafter provided. Neither :oarty shall be reo :ed to give
Unottce to proceedS' to its contractors for construction contemplated hereunder until
sums initially payable as contemplated by this paragraph sh~dl have been paid.
17. The parties agree that the capital contributions to be made pur-
suant to p~a'agraph 14 and paragraph 15, respectively, shall be subject to final
adjustment within 30 days after receipt by CFJ~..~A or Borough Authority, as applicable.
o£ a certificate of its consulting engineers certifying that the CFJ~IA Facilities or the
Additional Borough Facilities, as applicable, is complete, all Costs of Construction can
be ascertained and, if applicable, that final settlement has been made by CFJ~.~A or
Borough Authority. as applicable, with respect to any grant and liquidated damages
received by such party for application for and toward payment of a portion of the costs
and expenses of construction of the CFJ~:-~A Facilities or the Additional Borough Facilities.
as applicable. Such adjustment shall be made 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 CFJb~ J'oint 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, l~Tithin 30
days after such final adjustment the party required to make the capital contribution
by either paragraph 14 or paragraph 15, as applicable, shah make the appropriate
payment of the balance of the capital contribution due to the party entitled to receive
the same under paragraph 15,' as applicable, or, if appropriate, the party which
received a capital contribution under either paragraph 14 or paragraph 15, as
applicable, within 30 days after final adjustment shall make thc appropriate refunct
of any overpayment of a capital contribution theretofore made pursuant to paragraph 14
or paragraph 15, as applicable, to the party theretofore making such overpayment.
- 20 -
18. The parties recognize 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
to individual t-~.-.atment with respcct to the annual charge which shall b.: paid to CFJ~..;..:
for use by Borough Authority or the Borough, as appropriate, of the ~..'$.~-IA Joint
Facilities; and CFJMA is equitably and Justly entitled to individual treatment with
respect to 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 CFJ~:~.A Joint Facilities. and the annual
chn.rges 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 SB" or Exhibit "D" , as applicable).
shall be determined Within 60 days after the close of each Fiscal Year, in accordance
with the following:
A. Borough Authority and Borough, on the one hand, and
CF$}IA, on the other hand, as appropriate, shall determine the total
actual costs and expenses of operation, maintenance and repairs of
each facility constituting the Borough Joint Facilities as set forth
in Exhibit ~A". or each facility constituting the CFJM. A $oint Facilities
as set forth in Exhibit "B' . together with any improvements and
additions thereto made. from time to time, in accordance with
provisions hereof, as applicable, during the Fiscal Year under
consideration, Without limiting the generality of the foregoing.
such costs and expenses shall include, in each case, the following:
{1) salaries and wa~es of operating and supervisory personnel.
= 21=
including, social security and customary employee fringe benefits;
(2) power, fuel oil, water and other utilities; (3) costs of chemicals
and laboratory supplies and other materials and supplies; (4) costs of
insurance and inspection and taxes, if any; (5) costs of equ.;.~ment and
supplies; (6) costs of equipment maintenance, including mc,, vehicle
maintenance, gasoline and oil; (7) costs of ordinary or routine repairs
and replacement; (8) costs of enffineeringo legal and accounting
services and all contract ' ·
services, (9) general administrative costs
and expenses; Provided, however, that in the case of the foregoing
the same shall be included only to the extent that the same relates to
the operation, maintenance and repair of said facility; and Further.
Provided, however, said total cost and expenses shall not include the
following: (a) any amount attributable to debt service requirements
with respect to indebtedness; (b) any amount attributable to depreciation;
(c) billing costs; and (d) administrative costs and other costs which are
not directly attributable to the facilities involved in such determina~,ion..
B. The amount, if any, received by CFJMA, on the one hand,
or by Borough Authority or the Borm:gh, as applicable, on the
other hand, dm-lng the Fiscal Year 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 account of or available for costs of
operating, repairing, maintaining and/or replacing the
facilities constituting the CFJI.~.A Joint Facilities or the Borough
Joint Facilities. as applicable, under consideration shall be
deducted from the total costs and expenses determined in sub-
paragraph A above to determine the net costs and expenses of
operation, maintenance and repair of the facilities under con-
sideration during the Fiscal Year under consideration.
- 22 o
C. CFJltA and Borough Authority or the Boroullh, as
appropriate, jointly 0 shall divide the total number of gallons
of s¢:-~-~i~e and wastes discharged to the facilities under con-
sideration by the Borough Facilities and residents of the Bot. ~h
or by the CF~I,IA Facilities and residents of the Adjacent l¥funici-
pal. fries (clischarging sewage and wastes to CFJ~,iA), as applicable,
during the Fiscal Year under consideration by the total number of
all gallons of sewage and wastes discharged to such facilities under
consideration by both the Borough Facilities and residents of the
Borough and bY the CFJ~.IA Facilities and residents of the Adjacent
Municipalities during the Fiscal Year under consideration. The
quotient so obtained shall be multiplied or otherwise adjusted by
a factor(s), formula or calculating procedure for surcharge for
strength and character of sewage and wastes, including Industrial
Wastes, discharged to such facility under consideration above in
excess of the strength and character of Domestic Sewage, said
factor (s), formula or calculting procedure to be established
pursuant to Schedule "En attached hereto and hereby made part
hereof; and the result so determined shall be applied to the net
costs and expenses of operating, maintaining and repairing the
facilities under consideration during the Fiscal Year under consideration,
as determined in subpara~raph B above. The total of all results so
obtained with respect to the Borough Joint Facilities and the CFJ~./A
Joint Facilities, respectively, shall equal the annual charge to
CFJMA for use of the Borough Joint Facilities and to Borough
Authority or the Borough, as appropriate, for use of the CF~IMA
Joint Facilities, respectively, during the applicable Fiscal Year.
Samples o£ sewage and wastes and/or data ~rom the mete.- stations
mawr be obtained and aha]y--ecl b7 any party at anT' time tn order to insure compliance
with the terms of tl~s Joint Agreement. l~-ach party hereto shall have the right to have
a 2-epresentative present when such samples and/or data a~e obtain~.r! ~ut such righ~
shall not limit any party"s right of access to the meter stations to obtain such samples
and/or data.
For the purpose of determining and calculating the volume and/or
cha~-acter of sewage and wastes discharged £rom each party's facilities into facilities
of the other, the following methods shall be used: (i) All sewage metering devices
shnl] be inspected, calibrated and tested for accm'acy in accordance with the
manufactm'erls standards, at least quarterly by the ovmer thereof and reports of such
inspection shall be made directly to Borough and CFJ~{A. The cost of such inspection
and the cost of any repot or replacement shall be bootie by the party or parties whose
flows a~e meastn-ed hereunder, tn proportion to flows; (ii) In the c.~se of missing flow
records due to faulty meter regis~ation or otherwise, an estimate of flows w-ill be
made, for pm'pose of determining volume of sewage and wastes discharged and this
es~mate will be ba-~ed 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 party
may prescribe and, in aL1 events, as reviewed and approved by the receiving party
and the party whose flows are in question; ~nd (iii) Flow records and metering device
installations of one party hereto shall be made available and accessible to any other
party hereto upon request therefor. The record of sewage and wastes flows through
metering devices operated and maintained by one party will be forwarded to any
other party requesting the same on or before the fifteenth day of the first month of
each calendar quarter showing the total and daily sewage and wastes flows discharged
dUl-tng the previous quarter. All faulty meters or measm'ing devices, promptly,
shall be repaired or restored to proper measm-ing capability by the owner thereof.
- 24-
For purpose of this Joint Agreement the gallons of sewage and wastes
discharged by CFJ~A Facilities to Borough Facilities er by Borough Facili~es to
CFJMA Facilities. as applicable, shall be determined by sewer meters, required
hereby, located in main l~nes measuring sewage and wastes to facilitf-.-~ under con-
sideration, or in the event no sewer metro' 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 Establishments shall be
measured by the volume o£ 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 CFJ~.IA Facilities
or to the I~orough Facilities, as applicable;
B. Gallons of sewage and wastes discharged by Residences,
if served by metered water service, shall be measured by the volume
of water used by said residence, less any water not discharged to
the CF,D, iA Facilities or to the Borough Facilities, as applicable,
or if not served by metered water service, on the basis of 350
gallons per day per Residence: and
C. Gallons of sewage and wastes discharged by users,
persons, or parties other than Commercial Establishment,
Industrial Establishment or Residences, shall be measured
by the volume of water used by said user, person or party,
less any water not discharged to the CFJMA Facilities or to the
Borough Facilities, as applicable;
D. The sum of gallons of all users discharging sewage and
wastes to a facility under consideration, determined, as above
provided, in A. 13 and C, shall be aggregated to determine
the volume in gallons of sewage and wastes discharged to a facility
under consideration.
Sewer meters sh&ll be installed to measure sewage and wastes governed
· by this ~oint Agreement at points of connection shown on Exhibit nC" or at such additional
points of connection, in each case. through which there shall be discharged sewage
and wastes in excess of 1000000 gallons per day (30 day average), at the cost of the
party so dischars~ng.
The parties required to pay the same shal~ make payments on account
of sums due to parties entitled to receive the same, pursuant to this paragraph
for each Fiscal Year. on or before April 1S. 7uly 15, October ~5 and ~anuary 1S of each
Fiscal Year. in installments; together with a penalty of 5% of the sum due. Lf any such
installment is not paid within 30 days after the date due.
The instal~!ments made, as above provided shall be made on the basis
of an estimate made by the consulting engineer of the party t~ which pavement is due.
which estimates shall be made and furnished to the other party not later than 30 days
prior to the beginning of each Fiscal Year. Within the time speckled above actual
costs of operation, maintenance and repair of the facilities under consideration
payable by one party M the other sha~l be determined and then an additional payment
or rebate, as applicable, shall be made representing the difference or excess, as
applicable 0 of the t~tal estimated annual pa~nents over or under the actual annua!
pa~nent due arid payable; and. i~ any such required payment shall not be paid within
30 days after written not~ce is f~iven of such determination that same is due a penalty
of $% of the unpaid amount shall also be paid.
~9. Boroush and Borough Authority agree that at the time of payment
of the capital contributions t~ be made pursuant ~o paragraph 1S Borough Authority
and the Borough shal! transfer, title to the sewer collection lines described in
Exhibit ~Cu as nExis~ing Shippensburg Borough Authority Sewers t~ be transferred
t~ CFJ~/A~. and CFJY~A, thereafter shall ha-~e the right to render service t~ the
properties or customers connected thereto and thereafter which can be served
thereby.
- 26 -
20. The appropriate parties shall keep necessary records and account~
with ~'eepect to customers served by and costs and expenses of operation, maintenance
and repair of the CFJMA Facilities, including the CFJ~A $oint Facilities and the
Borough Facilities, including the Borough $oint Facilities, so that cte~ -ninations
which shall be necessary under paraSTaph 18 can be made promptly, at the requJ.red
times 0 with fairness 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 avsilable to the parties ennuall, y.
2!. Any other provisions horeof to the cont~a2~y notwithstanding,
CFJ]VlA and the Borough and BOrOugh Authority, as applicable, covenant and agree
to impose, collect and pay over any Fates, charges, tm-iffs, or impositions required
to be imposed and collected f~om any person or party discharging sewage and Wastes
directly or indirect]y, 'to any fac~ty of CFJ]~,A, the Borough or Borough Authority,
pursuant to provisions of any Grant Agreement; CFJMA and the Borough Authority
each assumes 0 v~th respect to its customers 0 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 maintaln'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 UUser
Charges and Industrial Costs Recovery, published in the Federal Register, ~ay 2,
19730 and Federal preotreatment standards, or any subsequent regulations relating
to the same subject matter.
CFJI~4A and Borough and Borough Authority agree to comply with
rules' and regulations of the other implementing the requirements refaced to in
this Paragraph 21, includ£ng those applicable to parties which are discharging
or will discharge sewage wastes reasonably classified as aindustria~ wastesn'
- 27 o
22. CFJIiA a~rees to comply with requirements of statutes, rules
and regulatior,.~ relating to Borough Authorityfs or :t~e Borough*s "N,-;..hal Pollutant
Discharge Elimination Permit~ and the obligation of .'.~e Borough and t.'.-:,rough Authoriii
thereunder, which reiate to customers of CFJMA.
23. Each of the parties agrees to adap. t such ordinances and/or resolutions
which are necessary to impose any rates 0 charges, tariffs or requirements upon 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 the event the Commonwealth, the United States of America
or any other governmental entity having jurisdiction, acting through any agency
of any such gover..~n~ntal entity, should require additional treatment or intensification
of. or other change in treatment of the waste water discharge of the Borough Joint
Facilities. including the Additional Borough Facilities, or in the event that major.
improvement (as 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 necessary, with respect
to the Borough ,Ioint Facilities or the CFJI'.~A Joint Facilities, in the opinion of the
Borough Authority and the Borough, or in the opinion of CFJMA 0 as applicable,
Borough Authority or CFJMA, as applicable, shall construct such necessary improve-'
ments and finance the same as soon as is possible and practical, and CFSMA or Borough
and Borough Authority shall share in net costs of such improvements, after application
of available grants, reserves, earned interest or other available funds, on a basis which
would be a weighted percentage, giving effect to the direct ratio which the design
capacity of the improvements or additions at the time applicable or attributable to
- 28 -
CFJMA or Borough and Borough Authority requirements bears to the total design
capacity of the improvements or additions to the Borough Joint Facilities or the CFJMA
Joint Facilities. a~ applicable.
B. If expansion of the total design capacity of the Borough Joint
Facilities, including the sewage treatment plant or the CFJMA Joint Facilities becomes
necess~-y, from time to time, costs of such e,.'pansion 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.
(2) If such construction, reconstruction, repairs
or improvements are necessitated solely by C'FJMA require-
ments, CFJ~.~A shall be responsible, solely, for such costs
and shall make appropriate provisions for payment.
(3) II such construction, reconstruction, repairs or
improvements should be necessitated jointly by Borough
requirements and CFJ~.IA 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 CFJ~IA wastes or the Borough and Borough
Authority, as applicable, bears to the total increased design
capacity or existing reset'red capacity, as applicable, in the
Facilities involved, and CFJMA and Borough and
Borough Authority shall make appropriate provisions
for payment.
C. Provisions for payment under this paragraph 24 - ..~.11 be made
by CFJMA or by Borough and Borough Authority (1) for payments made for and toward
expenditm-es by auch party for its own requirements, in a manner determined solely
by it; (2) f~r payments made for and toward expenditures made by the other party for
the former's requirements payable at the option of the payor either (a) in cash payable
at the time 'notice to proceed' with the work is given to contractors; or (b) by paying
an amount equal to debt service requirements plus applicable "coverage" attributable
to such net costs to the party making the initial expenditure for such net costs, payable
in the manner specified by the party to receive such payments.
25. Upon completion of construction of the CFJMA Facilities, CFJI~A
shall provide Borot~gh Authority and the Borough with a complete set of as-buil~
drawings of the CF.TMA Facilities 0 showing complete information as to locations,
grade and depth of lines, location of manholes and other similar relevant information.
Upon completion of the Additional Borough Facilities, Borough Authority
shall provide CF.II:IA with a complete set of as-built drawings of the Borough .Toint
· Facilities showing complete information as to location, grade and depth of lines,
location of manholes and other similar relevant information.
26. Borough Authority and the Borough grants to CFJ}¢IA and the
Adjacent Municipalities, respectively, and their respective successors and assigns,
all easements, rights of way and other rights necessary and desirable in, along
over and under sweets, roads, lanes, courts, public squares, alleys and highways
of the Borough..Borough Authority and other properties of Borough Authority and the
- 30 -
Borough ~nd in. along, over or under which the CFJ~L~ Facilities will be constructed
as shown on the plan attached hereto, made a part hereof and marked as Exhibit 'eCn.
together with free ingress, egress and regress therein and thereto, along with othcr
persons havin~ ~.~terests or right.~ therein, for use ia connection wit~. r. nstructing.
replacing, repairing, altering, maintaining and operating the CF$,~.IA ~-'acilities.
CFJMA shall repair or restore such streets, roads, lanes, courts; public squares,
alleys and highways and properties of Borough Authority aud the Borough in accordance
with the rules and reg~dations of 2orough and/or Borough Authority, and shall
maintain said streets, roads o lanes, courts, public squares, alleys and highways
and properties for a period of two (2) years after such repair or restoration.
27. CFJ~ 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 CFSMA 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 nC* , together with free
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 CF$~.~A or the
Adjacent Municipalities in accordance with rules and regulations of CFJ~ 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. CFJI.~IA or Borough Authority and the Borough. as applicable agree
to provide Borough or Borough Authority, as appropriate, or CFSt, L~, as applicable.
with access at necessary and reasonable times (including access for waste measure-
ment and sampling) to the CFJMA Facilities o or the Borough Facilities, as applicable.
inclu 'dlng manholes preceding points of connection of either system to the other, in order
to assure compliance with the terms of this ~Foint Agreement.
The appropriate parties a&n'ee 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,IMA covenants and affrees that they will:
A. Maintain the CFJ}.~.A Facilities in good repair 0 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 0
regulations, permits, 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 jursidiction; and
E. Insure the CFJ~.IA Joint Facilities with a responsible
company or companies authorized or qualified to do business
in the Commonwealth insuring against loss or damage by multiple
peril, including flood insurance, nnd 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 CFJI~4A ~Ioint Facilities CFJMA will commence
and duly prosecute, as soon as practicable, the reconstruction,
repair or replacements of the damaged or destroyed portion of said
facilities.
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, permits, 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, Borough
and Borough Authority will commence and duly prosecute, as
soon as practicable, the reconstruction, repair or replacement
of the damaged or destroyed portion of said facilities.
31. CF$}/A (with the' CFJIVIA Facilities which are owned exclusively by it)
or Borough Authority and the Borough (with the Borough Facilities, which' are owned
exclusively by them), as applicable, may enter into any new or additional agreement
concerning collection, transportation, treatment or disposal by CFJIVlA or Borough
Authority or the Borough, as appropriate, as applicable, with facilities owned
nexclusively~ (as described in appropriate definitions contained in paragraph 1), by the
p~rty rendering such service, of sewage and wastes from any other municipality;
Provided. however that no such n.~.w or additional a~'eement shall irr:l'~ _~ the ability
of CFSMA or Borough Authority or the Borough, as appropriate, to r~ve and to
Lransport, as applicable, sewage and wastes in accordance with the terms of this Joint
Agreement; and Further, provided, however that any suc.~ n~w cu' addition~ a~'ee-
mcnt shall be subject to the provisions of paragraphs 11 and 12 horeof.
32. The parties agroe that CFSMA sha~l have the right to make and
collect sewer assessments against properties not hereto£orc served, tapping
Cot connection) fees, against properties not heretofore served, and sewer rentals.
r~.~-es and charges and other charges permitted by law against or from any and -
all proper~-~es whether heretafore or hereaftar served by the Borough Facilities
and service rendered thereby against or to. as appropriate, properties located
in the Adjacent Municipalities and residents of the Adjacent l~funicipalitics, as
appropriate, benafited or served, as appropriate, by the Borough Joint Facilities;
excedrinR and exclud~, however, property and premises, owned from time to time.
by ~he Commonwealth, constituting all or part of, as applicable, an institution
presently known as Shippensburg State College, which property and premises
~hall continue to be provided with sewer service by Borough and Borough
Authority; and further _exceptin~ and excluding, however, property governed by an ·
A~reement, dated September lc), 1967, between the Borough and Borough Authority.
on t~e one hand, and J .M .S. Development. Corporation, on the other hand, relating
to sewage service; Provided, however. CFJ~fA shall be responsible for costs and
expenses of making all such connections to the Borough Facilities governed by this
paragraph ~2. CFJI~iA 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.
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 CF~I~L~ Facilities and service
rendered thereby against or to, as appropriate, prol~erties located in the Borough
,- and residents of the Borough, as appropriate, benefited or served, as appropriate,
by the CFJ~.~A Joint Facilities; Provided, howcver, Borough Authority and the
Borough shall be responsible for costs and expenses of making all such connections
to the CFSMA Facilities governed by this paragraph 3Z, the costs and expenses of
construction of which are not part of the Costs of Construction of the CF~MA
Joint Facilities. Borough shall not be denied, unreasonably, the right to make
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 l'ines of Borough
Authority.
33. The parties hereto agree that if, at any time, disputes shall arise
between them concerning factual determinations under the terms of tl~is Joint Agree-
ment, the matter of dispute shall be referred to three arbitrators, one to be
appointed by CFJ!vlA, one to be appointed by Borough Authority and thc Borough and
the third to be agreed upon by the two appointees so selected; Provid2d, however,
that in the event su--h appointees carmot 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 parties hereto agree that all Borough Facilities.
Borough Joint Facilities, and Additional Borough Facilities,
together with all future alterations, additions, improvements and
ex'tensions, shall be owned solely by Borough Authority: and that all
CFJlvlA Facilities and CFJ~vfA Joint Facilities together with all
future alterations, additions, fmprovements end extensions,
shill be owned solely by CFJldA.
B. The parties he,'ets agree to comply with ~11 appli~z'..e
present and future Pennsylvania m* United States laws, rules o
regulations, permits, orders and requirements lawfully made by
any governmental body having jurisdiction.
(:. Each of the parties hereto agree to indemnify and save
harmless any other party against all losses, costs or damages on
account of any injury to persons or property occurring in the
performance of tl~s Joint Agreement, due to the negligence cd any
such party, its respective servants, agents or employees, or
resulting ~rom the hilure of any of the parties' hereto Facilities
to function properly ~rom any cause due to such negligence.
D. Any party hereto or its duly authorized representative or
representatives, shall, at ali reasonable times, be permitted to
enter upon al] properties jointly used with another party hereto
for the purpose of inspection, observation, measurement, sampling,
and testing, in accordance w~th the terms and conditions of this
Agreement.
E. Anything herein contrary notwithstanding, no party hereto
will connect to any of the ~acilities referred to in this Joint Agreement,
any user .diScharging any inclustrial wastes or other processec!
wastes whose quantity or c~uality may be deemed to have a
deleterious eKect on the sewage treatment or sludge handling
process which are part of the ]~orough Facilities or v;hich cannot
be processed or hanclled by facilities referred to in this Jc~nt
Agreement in the normal and ordinary course of operation.
- 36 -
F. It is' understood and agreed by the parties hereto that
Borough Authority solely shall continue to provide sewage n'eatment
services individually and not in any way whatsoever as a part of
this Aureement, to Shipl~ensburg State College under such p"-'aent
or future agreements as Shippensburg llorough Authority ar,,, the
Commonwealth of Pennsylvania now are parties to. my execute,
without any approval by any other parry hereto.
G. It is understood and aSk'ced that none of the t~rms of this
Joint Agreement shall in any ,~'a7 be construed to ah'ect or abrogate:
the present contract between the Borough of Shippensburg and
Shippensburg Borough Authority, to supply sewage treatment
services to the facilities known as "College Park Apartments'*
located i~ .Shippensburg Township, Cumberland County. Pennsyl-
vania.
H. Should any one or more of the provisions of this Jo,:it
Agreement be held illegal, invalid or uner~orceable, such illegality,
invalidity or unenlorceability shall ~ot a-~fect any other provision
of this Agreement, and this ,Joint Agreement shall, in such circumstances,
be construed an~l enforced as if such illegal, invalid or unel~f~rcc-.,ble
provision had not been contained herein[
I. The failure of any party hereto to insist upon strict
performance of this Joint Agreement 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,
verbal or written, other than those contained herein or provided for
herein. This Joint Agreement may be modified, amended or supple-
mented by the written agreement of all of the parties hereto.
K. The term of this Joint Agreement shall be for a period
beginning with effectiveness hereof and ending at such time as this
Joint Agreement is terminated by mutual ag,'~.ement of all the ~'~.--ties
hereto..
35. Should either CFJI~A or Borough Authority be tmaoie to settle
their required financin'g on the initially specified date fro- ~u]l~neotm seetb,ment
of financing, determined pursuant to l~l~-~l-~hs 2 and 4 hereof, b othe~ l~trty at
any time shall after the e~piration of · period of six months, have the right to elect
to specify0 in writing, a date upon which this Joint Agreement sh~ll 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
and their respective successors and assigns; Provided° however, this Joint Agree-
ment shall not become effective until both l~orough Authority and CFJMA shall have
been offered and shall have accepted ~rants of funds under the 1972 Federal Water
?ollution Control Act amendments, P.L. 92-500, pursuant to the respective applications
therefor heretofore made by both Borough Authority and CFSMA.
37. This Joint Agreement may bc executed in any number of counter-
~o~'ts, each of which shall be an o~ginal, but su:h counterparts together shall
constitute but one 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., ·I1 as o£ the day and year first above written.
ATTEST:
Secretary
CUMBERLAND-FRANKLIN JOINT
MUNICIPAL AUTHORITY
TOWNSHIP OF SOUTHAMPTONo
Cumberland County. Pennsylvania
ATTEST:
Ghai2-man of the Board cd Super~*isors
TO~,;'?~SHIP OF SHIPPENSBUP, G.
ATTEST:
ATTEST:
(SEAL) .'
TOWN.~HIP OF SOUTHA~iPTON.
Franklin County, Pennsylv~r~ia
Ch~tr~
BOROUGH OF ORRSTOWN ·
Franklin County. Pennsylvania
ATTEST:
· - Se~etary
President cd Council U u
0 ~'
0
FREDI~RIC G. ANTOUN, JR,
ATTORNEY AT LAW
131 McKINLEY STREET · P.O. 8OX W
CHAMBERSBURG. PA 17201
717-2§7~511
FIRST AMENDMENT TO JOINT AGREEMENT
BETWEEN THE CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY,
TOWNSHIP OF SOUTHAMPTON AND BOROUGH OF ORRSTOWN~)FRANKLIN COUNTy
TOWNSHIP OF SHIPPENSBURG AND TOWNSHIP OF ~UTHAHPTON, '
CUMBERLAND COUNTY, BOROUGH OF SHIPPENSBURG AND
SHIPPENSBURG BOROUGH AUTHORITY
WHEREAS, the parties hereto have previously entered into a
Joint Agreement dated as of January 15,1977, providing for the
operation and control of certain sewer collection, transportation
and treatment facilities constructed by the Shippensburg Borough
Authority and the Borough of Shippensburg on the one hand and
Cumberland-Franklin Joint Municipal Authority on the other hand;
and
WHEREAS. the said Agreement provides for the billing of
certain costs .and expenses and capital improvements by the
respective parties to the other; and
WHEREAS, the original Joint Agreement is ambiguous and vague
as to the precise method to be used for the calculations of the
respective shares of the costs and expenses for the operation,
maintenance and capital improvements and after a series of
discussions it is apparent that the correct formula has'not been
used by either Party to the Agreement, in prior billings.
NOW, THEREFORE, CFJHA and the Adjacent Municipalities and the
Shippensburg Borough Authority (the "Authority") and Borough of
Shippensburg .(the "Borough") for and in consideration of the
covenants and agreements herein contained, to be kept and observed,
intending to be. legally bound hereby, covenant and agree as
follows: ,
1. The term "Joint Facility" as used in the Joint Agreement a:3d
herein, shall mean any sewer facility whether used for treatment
or collection and transportation which is owned by one party to
this agreement but is used for the collection, transportation or
treatment of sewage of both parties.
2. The Borough and Authority shall bill CFJMA quarterly for
CFJMA's share of the costs of the operation and maintenance of the
Wastewater Treatment Plant.
3. The Borough and Authority shall bill CFJMA annually, not later
than J~nuary 30 of each year for CFJMA,s share of
°Perati'On~ ~nd maintenanb=~ of, the~ joint,i~.,~e~r the cost of the
COi'l~at~on 'and
transportation facilities ("Joint FaciJity") operated and
maintained by the Borough and Authority. The costs for the
operation and maintenance of the pumping and ejector stations shall
be included in the costs for the operation and maintenance of the
sewage collection system. The billing shall be calculated using
the formula set forth in Ekhibit "AA" attached hereto.
- 1 -
4. CFJMA shall bill the Borough and Authority annually, not later
than January 30 of each year for the Borough and Authority's share
of the joint sewer collection and transportation facilities ("doint
Facility") operated and maintained by CFdMA. The billing shall be
calculated using the formula set forth in Exhibit "AB" attached
hereto.
5. The Borough and Authority and CFJMA shall recalculate their
respective bills for the years 1986, 1987, 1988, using 1988 flows
and inch-feet and based upon the formulae attached hereto as
Exhibits "AA" and "AB".
6. Each party hereto shall update its respective inch-feet no
later than January 30 of each year, and shall provide the other
party with those records in writing.
7. CFJHA shall not be required to contribute to. the anticipated
upgrading of pumping and ejector station number Z~ It is
understood and agreed that the flow of CFJMA in this pumping
station shall be fixed at ~Z00 gallons, per day. In the event
that CFJMA desires to increase its capacity in this pumping station
they shall be required to increase the capacity at their sole cost
and expense.
8. This Agreement represents the entire understanding between the
parties and shall not be modified except by writing, signed by the
parties and attached hereto.
9. In all other respects the Agreement between the parties hereto
dated as of January 15, 1977 shall continue in full force and
effect.
10. This Agreement may be executed in any number of counterparts
as the parties hereto desire, but each shall be considered an
original, but such counterparts together shall constitute but one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Joint Agreement to be executed by their duly
authorized appropriate officers and their respective seals to be
affixed hereunto, as of the day and year first written.
ATTEST:
// / Secre tar~"
SOUTHAMPTON TOWNSHIP,/
FRANKLIN COUNTY ~
~ i rman
ATTEST:
Sec~retary
BY.
S,H I PPENSBURG TOWNSHIP
SOUTHAMPTON TOWNSHIP ,
ATTEST: CUMBERLAND COUNTY
~' %.Secretary"' Chai rma,~
ATTEST
S~c~'etary
BOROUGH OF ORRSTOWN
BY ~_ ~ 'c~-J ~° ~._G~ai rman
ATTEST:
Secretary
ATTEST:
Secretary /
BOROUGH OF SHIPPENSBURG
,~I pp~ROUGH
BY '-'
AUTHORITY
Chairman
- 3 -
Using the standard mathematical notation for an indefinite series
of numbers, the formula is:
- X ~ + X + X M
WHERE:
In -
IT =
CFJMA flow in a given section of Borough line
Combined CFJMA and Borough flow in a given
section of Borough line. These sections are
detailed in Exhibit "AC"
Inch-feet of Borough line in a given section,
Inch-feet of total Borough collection system
line.
Total Borough collection system O&H costs (in-
cluding pumping and ejector stations.
EXHIBIT 'AA"
BOROUGH'S
WHERE:
Ill
IT =
Borough Flow in a given section of CFJHA
line.
Combined CFJHA and Borough flow in a given
section of CFJHA line. These sections are
detailed in Exhibit "AC".
Inch-feet of CFJMA line in this section.
Inch-feet of total CFJHA collection
system.
Total CFJHA collection system O&H cost
(including pumping stations).
EXHIBIT "AB'
BOROUGH OF
SHIPPENSBURG,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v. :NO. 03-1735 CIVIL TERM
CUMBERLAND FRANKLIN '
JOINT MUNICIPAL AUTHORITY,:
Defendant :CIVIL ACTION - LAW
PRELIMINARY OBJECTION OF DEFENDANT
1. The Plaintiff in the above captioned matter has filed a Complaint in the Court of
Common Pleas of Cumberland County alleging a violation of a joint agreement made
between the parties and attached as Exhibit A to its Complaint.
2. The parties did, in fact, enter into a joint agreement, marked as Exhibit A and,
including the amendments thereto, constitute the agreement and understanding
between the parties regarding the operation of a sewer system.
3. The parties to the Agreement are the parties in the above captioned action, did
agree in Paragraph 33 of the original agreement and marked as Exhibit A to Plaintiff's
Complaint that "the parties hereto agree that if, at any time, dispute shall arise between
them concerning factual determination under the terms of this joint agreement, the
matter of dispute shall be referred to three (3) arbitrators...".
4. The subject of the instant lawsuit requires factual determination of the parties
joint obligations under the original agreement and amendments thereto and
consequently must be referred to arbitration pursuant to the joint agreement.
WHEREFORE, for all the above reasons, the Defendant, Cumberland Franklin Joint
Municipal Authority, requests this Court to sustain its Preliminary Objection, dismiss the
Complaint filed by the Plaintiff and order that the matter be referred to arbitration
pursuant to the agreement previously entered into between the parties.
Date
Respectfully Submitted,
q ' , olicitor, CFJMA
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
VERIFICATION
I, Ron Turo, Esquire, attorney for the Defendant herein, have sufficient
knowledge of the facts contained in this Preliminary Objection and verify that the
statements made in the foregoing Preliminary Objection are true and correct to the best
of my knowledge, based upon information received from the Plaintiff. I understand that
false statements herein made are subject to the penalties of 18 Pa. C.S.A. §4904
relating to unsworn falsification to authorities. A verification executed by the Plaintiff will
be filed of record as soon as it becomes available.
Date
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Preliminary Objection
of Defendant upon G. Bryan Salzmann, Esquire, by depositing,~~~the United
States Mail, first class, postage pre-paid on the ~--' day of ' _, 2003,
from Carlisle, Pennsylvania, addressed as follows:
G. Bryan Salzmann, Esquire
455 Phoenix Drive, Suite A
Chambersburg, PA 17201-4534
Ron Turo, Esquire
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
^ttorney for Defendant
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2003-01735 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SHIPPENSBURG BOROUGH
VS
CUMBERLAND FRANKLIN JOINT MUNI
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
CUMBERLAND-FRANKLIN JOINT MUNICIPAL AUTHORITY
but was unable to locate Them in his bailiwick. He therefore
deputized the sheriff of FRANKLIN County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On May
1st , 2003 , this office was in receipt of the
attached return from FRANKLIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Franklin Co
18.00
9.00
10.00
39.80
.00
76.80
05/01/2003
Sheriff of Cumberland County
SALZMANN DEPAULIS FISHMAN
Sworn and subscribed to before me
this ~F~ day of~
,2~ A.D.
~~Pro~thc n~t~y' ~'
SHIPPENSBURG BOROUGH,
Plaintiff
CUMBERLAND-FRANKLIN JOINT
MUNICIPAL AUTHORITY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Docket No. 03-1735
PLAINTIFF'S ANSWER TO
DEFENDANT'S PRELIMINARY OBJECTION
AND NOW, comes Plaintiff Shippensburg Borough, by and through its counsel,
Salzmann, DePaulis & Fishman, P.C. who respectfully answers the Preliminary Objection of
Defendant Cumberland-Franklin Joint Municipal Authority as follows:
1. No response is required because the Complaint speaks for itself.
2. No response is required because the Joint Agreement and its amendments speak for
themselves·
3. No response is required because the Joint Agreement speaks for itself.
4. Denied· It is specifically denied that the subject of the lawsuit concerns factual
determinations by the parties. By way of further response, this matter concerns the breach of the
Joint Agreement by the Defendant by its failure to pay for services rendered by the Plaintiff in
treating the Defendant's sewage at the Plaintiff's wastewater treatment plant.
WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss with
prejudice the Preliminary Objection of the Defendant.
Date: //~x,y//~ ?t~a~ By:
Respectfully submitted,
Salzmann, DePaulis & Fishman, P.C.
William W. Thon(pson, Esquire
Attomey ID No. 62482
95 Alexander Road, Suite 3
Carlisle, PA 17013
Tel: (717) 249-6333
Fax: (717) 249-7334
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on this/O/~// day of ~'/,y' ,2003, I served a true and correct
copy of the foregoing Plaintiff's Answer to Defendant's Preliminary Objection by first class
mail, postage pre-paid to the following:
Ronald A. Turo, Esquire
Turo Law Offices
28 S. Pitt St.
Carlisle, PA 17013
By:
Respectfully submitted,
Salzmann, DePaulis & Fishman, P.C.
William W. Thompson(, Esquire
Attorney ID No. 62482
95 Alexander Road, Suite 3
Carlisle, PA 17013
Tel: (717) 249-6333
Fax: (717) 249-7334
Attomey for Plaintiff
SHIPPENSBURG BOROUGH,
Plaintiff
V.
CUMBERLAND-FRANKLIN JOINT
MUNICIPAL AUTHORITY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Docket No. 03-1735
PRAECIPE TO REMOVE CASE FROM JULY 23~ 2003 ARGUMENT LIS I
TO: Prothonotary of Cumberland County
Please remove Defendant's Preliminary Objection from the list for the July 23, 2003
Argument Court. D ' ' '
efendant s Prehm~nary Objection was previously listed by Plaintiff by
Praecipe filed May 22, 2003. Counsel for Defendant concurs with the removal of Defendant's
Preliminary Objection from the Argument Court list.
Respectfully Submitted,
Dated:
· iam W. ~'hompson, Esquire
Attorney ID No. 62482
SALZMANN, DePAULIS & FISHMAN, P.C.
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
Telephone: (717) 249-6333
Facsimile: (717) 249-7334
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on this [(~[~day of June, 2003,'1 served a tree and correct copy of
the foregoing Praecipe by first class mail, postage pre-paid to the following:
Ronald A. Turo, Esquire
Turo Law Offices
28 S. Pitt St.
Carlisle, PA 17013
Date:
By:
Respectfully Submitted,
Salzmann, DePaulis & Fishman, P.C.
· Thomps~, Esquire
Attorney ID No. 62482
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
Telephone: (717) 249-6333
Facsimile (717) 249~7334
Attorney for Plaintiff
SHIPPENSBURG BOROUGH,
Plaintiff
CUMBERLAND-FRANKLIN JOINT
MUNICIPAL AUTHORITY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Civil Action - Law
: Docket No. 03-1735
PREACIPE TO DISCONTINUE
TO: PROTHONOTARY OF CUMBERLAND COUNTY
Please discontinue this matter and mark it discontinued and ended with prejudice.
Dated:~e~?~Zc~ / o0
.,2003
Williah~ W. Thomps6n, Esquire
Attomey ID# 62482
G. Bryan Salzmann, Esquire
Attomey ID# 61935
SALZMANN, HUGHES & FISHMAN, P.C.
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
Telephone: (717) 249-6333
Facsimile: (717) 249-7334
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on this/op ~'*
day of December, 2003, I served a true and correct
copy of the Praecipe to Discontinue by first class mail, postage pre-paid to the following:
Ronald A. Turo, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Date:
,2003
By:
Respectfully submitted,
Salzmann, Hughes & Fishman, P.C.
William W. Thomp[on, E~l'uire
Attorney ID No. 62482
Attorney for Plaintiff
SALZMANN, HUGHES & FISHMAN, P.C.
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
Telephone: (717) 249-6333
Facsimile: (717) 249-7334