CITY MANAGER MEMORANDUM. The Honorable Mayor Kelley and City Commissioners. Theodore S. MacLeod, P.E., Assistant City Manager

Transcription

1 CITY MANAGER MEMORANDUM To: Through: From: The Honorable Mayor Kelley and City Commissioners Joyce A. Shanahan, City Manager Theodore S. MacLeod, P.E., Assistant City Manager Date: March 31, 2011 Subject: Eastern Volusia Regional Water Authority Invitation Introduction: This is a follow-up to the City Commission regarding a previous item presented for consideration of a dues free annual membership from the Eastern Volusia Regional Water Authority for becoming a Member Government as defined in the attached inter-local agreement (ILA). The draft agreement at current includes adding the cities of Ormond Beach and Daytona Beach Shores as EVRWA Member Governments. Background: A consortium of local cities joined in the creation of the Eastern Volusia Regional Water Authority (EVRWA) to emphasize awareness of the need to preserve and protect our water resources. The consortium initially includes the City of Holly Hill, the City of South Daytona and the City of Daytona Beach and is open to other municipalities that may desire to join. Many of our neighboring eastern Volusia cities have been invited by EVRWA to join in the past, although none have ratified an amended ILA to join as Member Governments. Since the dissolution of the Water Authority of Volusia (WAV), the City continues to participate with the Volusia Council of Government s Water Advisory Committee activities. A similar and larger consortium exists between western Volusia County municipal entities for similar purposes. Following the May 2009 storm event, the City of Ormond Beach along with Volusia County and other nearby cities impacted by the Nova Canal flooding, participated in the formulation of a Joint Project Agreement (JPA) to perform an engineering study to determine feasible flood mitigation strategies for the overall basin area. The EVRWA organization was utilized as the responsible entity for executing the contract for the scope of work associated with the flood study project, and the City was a Participating Member Government with EVRWA with our participation in the project. Upon staff review of certain significant provisions of the interlocal agreement, the following comments are offered for consideration: Term: Should the City ratify the agreement and become a Member Government, the City shall remain associated with the authority having perpetual existence unless and until terminated by all of the members. A member may terminate its membership by

2 The Honorable Mayor Kelly and City Commissioners March 31, 2011 Page 2 providing 180 days notice to the other members; however, it will remain obligated to pay its share of any water project that it chose to participate in and its share of the operating budget. Powers and Duties: A detailed list of EVRWA s powers and duties are listed in Section 2.02, at pages 8-11 of the agreement, and include the power and right to develop, purchase, or sell water for use by Member Governments. At current, a Comprehensive Settlement Agreement exists between the cities of Ormond Beach and Daytona Beach for the lands south of SR40 and west of I-95 owned by Consolidated Tomoka Land Company. This settlement agreement clarifies each city's right to provide water and wastewater services and each city's respective service area. The settlement agreement also gives Ormond Beach the exclusive right to provide bulk water to Daytona Beach, at wholesale prices. Certain powers and duties described in the proposed EVRWA agreement are found to potentially impair, impede or otherwise conflict with Ormond Beach's rights under the Ormond/Daytona settlement agreement. Membership: There are two types of membership: Member Government and Participating Member Government. The City could become a Member Government of EVRWA upon approval and ratification of the agreement. The City would only become a Participating Member Government regarding those water projects that the City chose to participate in, if any, by executing a separate Water Project Contract. As a result of the City s having previously served as an individual water project participant, staff is of the opinion the EVRWA agreement provides the opportunity to participate effectively in a similar capacity with any future projects found to be mutually beneficial. Funding: If a decision were made to become a Member Government, the City would be responsible for an equal share of EVRWA s administrative budget. Funding for a particular Water Project that the City desired to participate in would be determined by a separate Water Project Contract that would be approved by the City Commission (thus becoming a Participating Member Government for purpose of the particular Water Project). Budget Impact: No immediate budget impact would be realized as the EVRWA has extended a dues less offer for membership to select potential and interested member governments. Future budget needs may be realized periodically as a result of a member government s decision to enter into a specific water project contract similar to recent Nova Canal Flooding Mitigation Project. Recommendation: It is recommended the City Commission respectfully reject the offer by the EVRWA to join as a Member Government, continue to acknowledge the efforts and accomplishments made by the authority, and find in favor of serving as a

3 The Honorable Mayor Kelly and City Commissioners March 31, 2011 Page 3 Participating Member Government from time to time upon determination that mutually beneficial projects are well served by this relationship. Prepared by: /s/ 03/31/11 Dave Ponitz, P.E., Utilities Manager Date Approved by: /s/ 03/31/11 Joyce Shanahan, City Manager Date

4 AMENDED INTERLOCAL AGREEMENT CREATING THE EASTERN VOLUSIA REGIONAL WATER AUTHORITY 1

5 THIS INTERLOCAL AGREEMENT CREATING AND GOVERNING THE EASTERN VOLUSIA REGIONAL WATER AUTHORITY, hereinafter referred to as EVRWA, made and entered into this day of, 2011, among the City of Daytona Beach, a Florida municipal corporation, hereinafter referred to as Daytona Beach; City of South Daytona, a Florida municipal corporation, hereinafter referred to as South Daytona; City of Holly Hill, a Florida municipal corporation, hereinafter referred to as Holly Hill; City of Ormond Beach, a Florida municipal corporation, hereinafter referred to as Ormond Beach, and City of Daytona Beach Shores, a Florida municipal corporation, hereinafter referred to as Daytona Beach Shores, all of whom are collectively hereinafter referred to as the Member Governments. WHEREAS the Floridan Aquifer System in Volusia County is characterized by an area of higher groundwater level forming an area of groundwater divide near the center of the county and areas of lower groundwater levels in the eastern and western portions of the county; WHEREAS water supply limitations for the Floridan Aquifer System in the eastern basin are caused primarily by concerns over saline-water intrusion and wetlands impacts; WHEREAS within the western basin, the issues are wetlands impacts and potential impacts to the flows in several natural springs (i.e. Volusia Blue Spring); and WHEREAS pumping of the Floridan Aquifer System in the western basin does not significantly affect the Floridan Aquifer System in the eastern basin, and the best available scientific evidence supports the development of an Eastern Volusia County approach to the planning, development and conservation of the water resources for the area, with a broader regional context. NOW THEREFORE, the Interlocal Agreement is created to provide as follows: 2

6 PART I. SECTION 1.01 DEFINITIONS. When used in this Agreement, the terms shall have the following meanings, unless the context clearly requires otherwise: A. Administrative Decision means a decision of a nature which pertains to the performance of day-to-day duties associated with the general business of the EVRWA or a Water Project, and has no bearing on the substantive rights or duties of a Member Government, or a decision which pertains to the expenditure of monies that are outlined in an approved budget or already authorized by the Member Governments. B. Agreement means this Interlocal Agreement, including any amendments hereto executed and delivered in accordance with the terms hereof. C. Board means the Board of Directors, appointed pursuant to Section 2.03 hereof. D. Director means an individual appointed to the Board by a Member Government pursuant to Section 2.03 hereof. E. Effective Date means the date this Interlocal Agreement was filed for record with the Clerk of Circuit Court in Volusia County. F. Emergency means power failure, mechanical failure, water main breakage, fire demand, or any other temporary occurrence that disrupts a Member Government s ability to provide water to its customers. G. Fiscal Year means the period commencing on October 1 of each year and continuing through the next succeeding September 30. H. Maintain means a Member Government may construct a new well to replace an 3

7 existing well or to achieve the pumpage currently authorized. I. Master Water Plan means the EVRWA s plan for operation, maintenance, expansion, conservation, diversification and preservation of water supply and Water Projects for the Member Governments. J. Member Government means any general-purpose local government that has executed this Interlocal Agreement. K. Participating Member Government means a Member Government that is a participating member of a specific Water Project or any separate Water Project Contract or agreement for operation and maintenance of a project. L. Points of Connection means the points identified by the Board at which two or more Member Governments water systems connect or the point a Water Project would deliver water to one or more Member Governments. M. SJRWMD means the St. Johns River Water Management District or any successor agency. N. State means the State of Florida. O. EVRWA means the Eastern Volusia Regional Water Authority. P. Water means domestic water, reuse water, stormwater, wastewater or any other form of water which could be the basis of a Water Project pursuant to this Agreement. Q. Water Projects or Projects mean capital improvement facilities, including water production facilities, Points of Connection, transmission facilities, finished water interconnects, raw water interconnects, wastewater interconnects, reuse water interconnects, joint use Aquifer Storage and Recovery facility, joint water treatment facilities, recharge projects, raw and/or finished new water supplies, and infrastructure. 4

8 R. Water Project Contract means the contract between Participating Member Governments which sets for the rights and obligations of the Participating Member Governments regarding a specific Water Project. SECTION 1.02 INTERPRETATION. Unless the context indicates otherwise, words importing the singular number include the plural number and vice versa; the terms hereof, hereby, herein, hereto, hereunder and similar terms refer to this Agreement; and the term hereafter means after, and the term heretofore means before, the effective date of this Agreement. Words of any gender include the correlative words of the other gender, unless the sense indicates otherwise. SECTION 1.03 FINDINGS. It is hereby ascertained, determined and declared by the Member Governments that: The Member Governments desire that the EVRWA plan for, design, connect, construct, operate and maintain Water Projects in accordance with the terms of the governing Master Water Plan and Exhibit A. SECTION 1.04 MEMBERSHIP A. The EVRWA shall consist of two types of members: Member Governments and Participating Member Governments. Member Governments shall consist of all governments that are parties to this agreement. Member Governments shall be responsible for funding, voting, participating in planning, administrative issues, operational issues, and other tasks related to the EVRWA, except issues regarding individual Water Projects. No Member Government shall be financially liable for any Water Project or otherwise committed to any Water Project until such time as the Member Government enters into the Water Project Contract regarding the specific 5

9 Water Project. B. Participating Member Governments shall consist of those Member Governments that participate in a specific Water Project, as set forth in a separate written Water Project Contract. Should a Member Government belatedly decide it wishes to participate in Water Project, the terms and conditions upon such participation, including the cost related thereto, shall be determined by the Member Governments already participating the in the Project. C. A government not otherwise a party to this Agreement may become an EVRWA Member Government upon the unanimous consent of the Member Governments. PART II. CREATION AND GOVERNANCE SECTION 2.01 AUTHORITY ORGANIZATION. A. The Member Governments do hereby provide for and create this Organization pursuant to the provisions of Section , Florida Statutes, and other applicable law to be known as the Eastern Volusia Regional Water Authority (herein EVRWA). The purpose of the EVRWA shall be: 1. To provide and maintain Water Projects in an effort to facilitate the mutual supply of water on a wholesale basis between Participating Member Governments as well as optimize the use of existing and new facilities and promote, assist and coordinate the expansion of reuse options to meet the present and future needs of the Member Governments; 2. To promote, enhance, develop, coordinate and assist in the implementation of water conservation programs among Member Governments to reduce future water supply needs; 3. To develop new water supply sources, including alternative water sources, 6

10 as needed; 4. To apply for grants and other funding related to any function of EVRWA; 5. To work cooperatively with the Water Authority of Volusia and/or any other regional or multi-jurisdictional entity in furtherance of water supply planning, acquisition, connection, construction, and operation. 6. Any other water-related purposes as are permitted by law and which are approved by the Board of the EVRWA as provided herein. 7. To serve as liaison between the individual members of EVRWA and other governmental entities, such as local governments, the SJRWMD, Florida Department of Environmental Protection and the U.S. Environmental Protection Agency. 8. To conduct legislative review of existing and proposed rules established by local, state, and federal agencies and disseminate information to all members of EVRWA. B. The creation and organization of the EVRWA and the fulfillment of its purposes are in all respects for the benefit of the people of this State and the people of Volusia County. The EVRWA is performing an essential governmental function. All property of the EVRWA is and shall in all respects be considered to be public property, and the title to such property shall be held by the EVRWA for the benefit of the public. The use of such property shall be considered a public purpose, until disposed of upon such terms as the EVRWA may deem appropriate. All obligations and interest or income thereon and all the property, facilities, services and activities of the EVRWA are declared to be nontaxable for any and all purposes by the State or federal government or any unit of the State or federal governments to the same extent as if owned by or issued on behalf of the Member Governments. C. It is the intent of the Member Governments that the creation and organization of 7

11 the EVRWA meet any applicable requirements for dependent special districts provided for in Chapter 189, Florida Statutes. D. The creation of this Organization shall not limit each Member Government s ability to develop Water Projects independent from the Organization. SECTION 2.02 POWERS AND DUTIES OF THE EVRWA. A. EVRWA shall have the following powers, in addition to and supplementing any other privileges, benefits and powers granted by Section , Florida Statutes: 1. To acquire water and water rights; develop, store, and transport water; and sell water in the manner provided herein. 2. To sue and be sued in its own name. 3. To acquire, by purchase, gift, devise or otherwise, and to dispose of, real or personal property, or any estate therein. 4. To lease, as lessor or lessee, to or from any person, firm, corporation, association or body, public or private, facilities or property of any nature for the use of the EVRWA to carry out any of the purposes authorized by this Agreement. 5. To make and execute contracts or other instruments necessary or convenient to the exercise of its powers. 6. To contract with one or more private or public entities or persons for the purpose of carrying out any of its powers and for that purpose to contract with such other public corporation or corporations for the purpose of financing such acquisitions, construction and operations. Such contracts may provide for contributions to be made by each party thereto, for the division and apportionment of the expenses of such acquisitions and operations, and for the division and apportionment of the benefits, services, and products therefrom. Such contracts may 8

12 contain such other and further covenants and agreements as may be necessary and convenient to accomplish the purposes hereof. 7. To contract for the service of engineers, accountants, attorneys, rate consultants and other experts or consultants, and such other agents and employees as the Board may require or deem appropriate. 8. To contract with private or public entities or persons to develop, purchase or sell water, subject to the preferential right of each Member Government to purchase water from the EVRWA for use by such Member Government; provided however, that the EVRWA shall not sell water to any customer of a Member Government unless requested to do so by the Member Government and approved by the Board. 9. To develop, implement, disseminate, publicize and otherwise encourage water conservation and reuse plans, programs and projects on behalf of one or more Member Governments in order to reduce the per capita usage of water. 10. To contract with a Member Government or any private or public entity or person for the operation, maintenance or management of Water Projects. 11. To accomplish construction directly or by advertising for construction bids and letting contracts for all or any part of the construction of improvements to the Water Projects to the lowest responsible and responsive bidder or rejecting any and all bids at its discretion; provided, however, that the competitive bid requirement may be waived if (a) the Board determines that emergency circumstances are present or (b) after consideration of all available alternative materials and systems, the Board determines that the specification of a sole material or system is justifiable based upon its design, cost, interchangeability or any other relevant factor. 9

13 12. To issue obligations in the manner provided in the Revenue Bond Act of 1953, as amended, part I, Chapter 159, Florida Statutes, or Part II, Chapter 159, Florida Statues, if necessary for the funding of a Project or activity, provided however, that such obligations shall not constitute a debt or obligation of the Member Governments. 13. To enter into a lease, license or other legal instrument with Member Governments in order to operate, control or manage any Water Project owned by a Member Government. In addition, in the event a Member Government elects voluntarily to transfer the ownership or operation of all or part of its existing Water Projects, the EVRWA may elect to accept said transfer upon such terms and conditions as are mutually acceptable. 14. Subject to such provisions and restrictions as may be set forth herein and in any instrument authorizing the issuance of obligations, to sell or otherwise dispose of its Water Projects, or any portion thereof, upon such terms as the Board deems appropriate. 15. To apply for and accept grants, loans and subsidies from any public or private entity for the construction, operation and maintenance of its Water Projects, and to comply with all requirements and conditions imposed in connection therewith. 16. To the extent allowed by law and to the extent required to effectuate the purposes hereof, to exercise all immunities and exemptions accorded municipalities and counties of the State under the provisions of the Constitution and laws of the State. 17. To appoint advisory, administrative or operating boards or committees to assist the EVRWA in the exercise and performance of the powers and duties provided for under this Agreement. 18. To apply for, obtain, renew, modify, receive by assignment, and comply with any and all permits, licenses or other third party approvals necessary for the acquisition, 10

14 construction or operation of EVRWA s Water Projects. 19. To assist Member Governments in constructing and operating reclaimed water projects to optimize the use of reclaimed water to replace or reduce the need for potable water. 20. To do all acts and things necessary or convenient for the conduct of its business in order to carry out the powers and duties provided in this Agreement. B. The EVRWA may exercise any of its rights, powers, privileges and authorities granted herein in any and all portions of any county, municipality, special district or other political subdivision of the State, heretofore or hereafter created or organized. C. The EVRWA shall not exercise the power of eminent domain. SECTION 2.03 BOARD OF DIRECTORS. A. All powers, privileges and duties vested in or imposed upon the EVRWA shall be exercised and performed by and through a Board of Directors ( Board ); provided, however, that the exercise of any and all executive, administrative and ministerial powers may be delegated by the Board of Directors to one of its members who shall serve as Chief Executive Officer. B. The Board shall be composed of Directors, all of whom shall be non-elected officials of Member Governments with knowledge of public utilities, such as City Managers, Utility Directors, or Public Works Directors, with each Director being entitled to one vote. Each Member Government shall appoint a Director and an alternate to serve in the absence of the Director. C. Each Member Government shall appoint its Director and alternate immediately upon adoption of this Agreement. A Member Government may replace its Director or alternate by notifying EVRWA and all other Member Governments in writing and identifying the new 11

15 Director. D. Each Director shall have the responsibility to keep his or her respective Member Government informed of the work being undertaken by the EVRWA. E. Two or more Directors may enter into a Water Project Contract on behalf of their respective Member Governments. Upon reaching an agreement, the participating Directors must submit the agreement to the Board of Directors for review and approval. Upon approval by the Board of Directors, the Board must forward the agreement to the respective Project Member Governments for ratification and funding approval. Each Member Government must ratify the agreement within 45 days in order to be bound thereto. Each Participating Member Government must remit its share of the estimated cost to the EVRWA for the Water Project Contract to become effective, unless otherwise agreed by the Participating Member Governments and provided therefore in the Water Project Contract. SECTION 2.04 BOARD MEETINGS. The Board shall meet on a regular basis at such times and at such places as determined by the Board; provided, however, special meetings may be called by the chairperson or in his or her absence by the vice-chairperson. To the extent permitted by Section , Florida Statutes, and other applicable laws, telephonic regular or special meetings by conference call or other method of electronic voice transmission, which permits each participant to hear every other participant and join in the discussion, are specifically authorized. SECTION 2.05 QUORUM AND VOTING. A. A quorum for the transaction of business at any regular or special meeting of the Board shall consist of a majority of the Directors. Notwithstanding the foregoing, a majority of the Directors present at any meeting may act to continue the meeting to any time and date 12

16 specified in such action. B. All administrative decisions by the Board of Directors affecting the EVRWA shall be effectuated by a majority vote of all the Directors present. If a decision is not clearly an administrative decision, the Directors shall refer the decision to the Member Governments for final resolution. C. All non-administrative decisions shall be made by unanimous approval of the Member Governments. D. The decision making procedure for all decisions regarding a Water Project Contract shall be as set forth in said contract. SECTION 2.06 OFFICERS OF THE BOARD. A. At its first organizational meeting and in April of each year thereafter, the Board shall elect a chairperson from their number, who shall serve for a period of one year, or until a successor shall have been duly elected and qualified, whichever is later. The chairperson shall preside at all meetings of the Board. B. At its first organizational meeting and in April of each year the Board shall elect a vice-chairperson from their number, who shall serve for a period of one year, or until a successor shall have been duly elected and qualified, whichever is later. In case of the absence or disability of the chairperson, the chairperson s duties shall be performed by the vice-chairperson. The vicechairperson shall perform such additional duties as are authorized by the Board. C. At its first organizational meeting and in April of each year the Board shall elect a secretary from their number, who shall serve for a period of one year, or until a successor shall have been duly elected and qualified, whichever is later. In case of the absence or disability of 13

17 the vice-chairperson, the vice-chairperson s duties shall be performed by the secretary. The secretary shall perform such additional duties as are authorized by the Board. D. If a vacancy occurs in any office, the Board shall elect a replacement to serve the balance of the unexpired term. E. If neither the chairperson nor vice-chairperson attends a meeting at which a quorum is present, the Directors present may elect one of their number to serve as chairperson pro-tem for that meeting. SECTION 2.07 POWERS AND DUTIES OF THE BOARD. The Board shall act as the governing body of the EVRWA and shall have the following powers and duties: A. To fix the time and place or places at which its regular meeting shall be held, and to call and hold special meetings. B. To make and pass rules, regulations, resolutions and orders not inconsistent with the Constitution of the United States or of the State, or to the provision of Section , Florida Statutes, or this Agreement, which are necessary for the governance and management of the affairs of the EVRWA, for the execution of the powers vested in the EVRWA and for carrying into effect the provisions of this Agreement. C. To fix the location of the principal place of business of the EVRWA and the location of all offices and departments maintained thereunder. D. To prescribe a system of business administration and create any and all necessary offices, in addition to chairperson, vice-chairperson and secretary; to establish the powers and duties of all employees; and to require and fix the amount of all official bonds necessary for the protection of the funds and property of the EVRWA. Any employee of the EVRWA must be an employee of a Member Government. 14

18 E. To appoint a Chief Executive Officer, who shall administer the affairs of the EVRWA and perform other administrative duties as directed by the Board. F. To designate an attorney to serve as Board Counsel. G. To change the EVRWA s name, if permitted by law. H. To provide status reports to the Water Authority Oversight Committee. I. To determine when and prescribe the manner in which water shall be supplied to a requesting Member Government in the case of emergency or planned capacity reductions for construction or maintenance activities. J. To designate a third-party mediator within 60 days of adoption of this Agreement. SECTION 2.08 WATER AUTHORITY OVERSIGHT COMMITTEE. A. Upon adoption of this Agreement, each Member Government shall appoint one elected member of its governing body to serve on the Water Authority Oversight Committee. B. The Water Authority Oversight Committee shall be responsible for receiving status reports from the Board of Directors. It is the duty of each committee member to inform his or her respective Member Government, on a quarterly basis, of the details of the reports. C. The Water Authority Oversight Committee also must ensure that the Board of Directors is acting in manner consistent with this Agreement as well as pursuing the goals of this Agreement. If committee members unanimously agree that the Board of Directors is not acting consistently with this Agreement or is not attempting to fulfill the provisions of this Agreement, then the Oversight Committee must inform each Member Government of the failure within 45 days. SECTION 2.09 ANNUAL BUDGET. A. Prior to May 1 st of each year following the effective date of this Agreement, the 15

19 Chief Executive Officer shall prepare and deliver to the Board a balanced tentative budget for the EVRWA covering its proposed operating and other financial requirements for the ensuing fiscal year and the proposed fees of the Member Governments. B. The Board shall publish a notice of its intention to adopt the budget and shall provide copies of the notice and tentative budget to each Member Government on or before the first publication date. The notice shall include a summary of the tentative budget, and identify the time, date and place at which the public may appear before the Board and state their objections to or support of the budget. The notice shall be published once a week for two consecutive weeks within thirty days of the public hearing, in any newspaper of countywide circulation qualified to accept legal advertisement in Volusia County; the last insertion of which shall appear not less than one week prior to the date set by the Board for the hearing on the proposed budget. C. At the time, date and place specified in the notice, the Board shall conduct a public hearing and thereafter may consider adoption of the budget with any amendments it deems advisable. The public hearing on the budget may be continued without the need for republication of notice. Unless otherwise authorized by the Board, the final budget shall be adopted and provided to each Member Government by July 1 st of each year. Each Member Government must ratify the budget prior to the budget becoming effective. D. The adopted budget shall be balanced and shall be the operating and fiscal guide for the EVRWA for the ensuing fiscal year. The Board may from time to time amend the budget at any regular or special meeting; provided, however, that prior to approving any budget amendment that increases the total budget for any fiscal year (other than a budget amendment appropriating grant funds or the proceeds of Obligations), the Board shall provide notice and 16

20 conduct an additional public hearing in the manner described in this Section Any revised budget shall be adopted and provided to each Member Government within 20 days of adoption. Each Member Government must ratify the revised budget prior to the revised budget becoming effective. E. The Administrative portion of the EVRWA budget shall be funded equally by all Member Governments. This funding will allow a governmental entity to be a Member Government even if they are not a Participating Member Government in any Project. F. The funding for each Water Project shall be determined by the Member Governments participating therein and set forth in each Water Project Contract. G. Operation and Maintenance: Each EVRWA budget will include an Operation and Maintenance ( O&M ) budget for each Project. Participating Member Governments funding of the O&M of a Project shall follow the same proportional share as the design and construction of Projects. The Participating Member Governments shall submit funds no later than November 1 st of each year to fund the O&M operations through September of the following year; provided, however, that Participating Member Governments may unanimously agree to an alternative payment schedule. A year-end close out will be conducted for each Project in November of each year, and a true-up will be provided to each Member Government to identify any refunds or additional required funding. H. If the estimated cost of any Water Project as described in Section 2.03(E) is less than the final actual cost of any Project, the deficit amount shall be allocated pro rata to each Participating Member Government in accordance with the terms of the Water Project Contract. Changes in the Scope of Work, that will cause the final actual cost of any Project to increase must be approved by unanimous agreement of the Directors of the Participating Member 17

21 Governments and shall not be undertaken by the contractor/consultant until each Director receives authorization from his Member Government to fund the increased cost. If the final cost of a Project is less than the estimate, the remaining funds shall be refunded to the Participating Member Governments. I. Capital expenditures for Projects shall be funded by Member Governments that choose to participate in the Project as set forth in each Water Project Contract or as otherwise determined by the Participating Member Governments. SECTION 2.10 ANNUAL AUDIT. An annual audit of the EVRWA financial statements shall be conducted each year by independent auditors. The audit shall be completed no later than six months after the end of the fiscal year. The audit shall be in accordance with generally accepted auditing standards and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States. PART III. WATER SUPPLY PROVISIONS SECTION 3.01 COOPERATION. A. The Member Governments agree that cooperative efforts are necessary in order to meet their respective needs for water in a manner which will provide adequate and dependable supplies. The Member Governments shall continue their cooperative efforts to develop and implement effective conservation programs in order to reduce per capita demand for water. B. In the case of an emergency or planned capacity reductions for construction or maintenance activities as determined by the Board of Directors, the Member Governments must supply raw or potable water to any requesting Member Government for a period of time not to 18

22 exceed 48 hours, provided that (1) a Member Government shall provide water supply only if it has the capacity therefore and (2) a Member Government shall be not be required to supply water in excess of 48 hours unless that Member Government agrees to provide the additional service. SECTION 3.02 CONTRACTS. Each Director shall have the authority to enter into a Water Project Contract between the EVRWA and the Member Governments that will receive water from the Project. Each contract will define the Member Governments involved, total water production from the Project, volume to be delivered to each Member Government and each Member Government s funding ratio to be applied to the study, design, land acquisition, construction, annual operation and maintenance, and other necessary costs of the Project. The Water Project Contract must be ratified by a participating Member Government within 45 days of the formation of the contract in order for the Member Government to be bound thereto. A Member Government that is not a party to a Water Project Contract for a Project shall not be provided water from that Project unless the original Water Project Contract is amended. Any amendment to a Water Project Contract may only be effectuated by majority vote of the Board and unanimous consent of each Director a party to the contract. Each participating Director s Member Government must ratify any modification within 45 days. Section 3.03 MASTER WATER PLAN A. A Master Water Plan shall be prepared and approved by the EVRWA as soon as reasonably possible, but not later than two years from the effective date of this Agreement. After approval of the Master Plan by the EVRWA, the Board shall forward the Master Plan to each Member Government. Each Member Government shall ratify the Master Water Plan within 45 days for the Master Plan to become effective. 19

23 B. The EVRWA may develop Projects prior to the adoption of a Master Water Plan, including but not limited to the short-term Water Projects identified in Exhibit A, attached hereto. The list of short-term Water Projects identified in Exhibit A shall be incorporated into the Master Water Plan upon adoption of the Master Water Plan. C. As part of the Master Water Plan, the EVRWA shall prepare and approve the initial Water Project(s). The initial Project(s) shall contain one or more specific Water Projects for new water supply facilities to serve the future needs of Member Governments. The Project(s) shall be specific as to location, design, and financing options available to the Participating Member Governments for implementation of the Project(s). The initial Project(s) shall have enough capacity to meet the demands of the Participating Member Governments until additional sources are placed in service. D. Within five years following the date of the initial approval of the Master Water Plan and at least every five years thereafter, the EVRWA shall review and update the Master Water Plan as it deems necessary. PART IV GENERAL PROVISIONS SECTION 4.01 FILING. A copy of this Agreement shall be filed for record with the Clerk of Circuit Court in Volusia County. SECTION 4.02 TERM OF AGREEMENT. This Agreement shall become effective upon approval of the Member Governments named herein and recording pursuant to Section 4.01 hereof. This Agreement shall be perpetual 20

24 until it is terminated pursuant to Section SECTION 4.03 AMENDMENTS. Amendments to this Agreement shall be by unanimous approval by the Board of Directors and effective after ratification by all Member Governments. SECTION 4.04 TERMINATION. A. This Agreement may be terminated by unanimous agreement of all Member Governments. B. Any Member Government may terminate its Membership in EVRWA by vote of its governing body and providing 180 days written notice to the EVRWA and all other Member Governments. However, a terminating Member Government shall be responsible for all obligations originating from any Water Project Contract to which that Member Government is a party, as well as any unpaid share of the existing budget as set forth in Section During the period of Notice of Termination, the terminating party shall not be entitled to vote in any manner except for issues that would impact the rights or obligations of the terminating Member Government. C. Operation and ownership of all Water Projects authorized by the EVRWA shall be set forth by the Water Project Contract. Upon dissolution of the EVRWA, the Water Projects (including all appurtenant contracts, licenses and permits) and other assets will belong to the Member Governments identified in each Water Project Contract at the ratios identified in such contract. The EVRWA will cease to provide operation and maintenance activities as of the date of termination of this agreement. SECTION 4.05 DISPUTE RESOLUTION. A. Other than disputes between the EVRWA and a Member Government relating to 21

25 environmental permits necessary or convenient to the acquisition, construction or operation of a Water Project, the EVRWA and Member Governments agree to resolve any dispute related to the interpretation or performance of this Agreement in the manner described in Section Either party may initiate the dispute resolution process by providing written notice to the other party. B. After transmittal and receipt of a notice specifying the area or areas of disagreement, the parties agree to meet at reasonable times and places, as mutually agreed upon, to discuss the issues. C. If discussions between the parties fail to resolve the dispute within 30 days of the notice described in Section 4.05 A. hereof, the parties shall appoint a mutually acceptable neutral third party to act as a mediator. The costs of the mediation, if any, shall be borne equally by the parties. The mediation contemplated by this Section 4.05 C. is intended to be an informal and non-adversarial process with the objective of helping the parties to reach a mutually acceptable and voluntary agreement. The decision-making shall rest solely with the parties. The mediator shall assist the parties in identifying the issues, fostering joint problem-solving, and exploring settlement alternatives. If the parties are unable to agree on a mediator, the mediator shall be selected by a third party. The Board shall designate the third party within 60 days of adoption of this Agreement. D. If the parties are unable to reach a mediated settlement within 60 days of the mediator s appointment, either party may terminate the settlement discussions by written notice to the other party. In such event, either party may initiate litigation or, where applicable, a proceeding under Section (2), Florida Statues, within 30 days of the notice terminating the settlement discussions. The venue for any such action, other than proceedings under Section 22

26 (2), Florida Statutes, shall be Volusia County. SECTION 4.06 INDEMNIFICATION. A. To the full extent permitted by law, the EVRWA shall indemnify each Director against and from any and all claims, costs, charges and expenses (including without limitation, fees and expenses of attorneys, expert witnesses and other consultants) which may be imposed in connection with his or her service as a Director, if such person acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the EVRWA or a Member Government, or, with respect to any criminal action or proceedings, had no reasonable cause to believe such conduct was unlawful. The termination of any proceedings by judgment, order, settlement, or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interest of the EVRWA or a Member Government, or, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. B. The EVRWA agrees to save harmless and assume the defense of and indemnify the Member Governments and their officers, employees, contractors and consultants against and from any and all claims, costs, charges, and expenses (including without limitation, fees and expenses of attorneys, expert witnesses and other consultants) which may be imposed against the Member Governments and their officers, employees, contractors and consultants by reason of either of the following occurring during the term of this Agreement: 1. Any negligent or tortious act, error or omission of the EVRWA or any of its personnel, employees, contractors or consultants in the construction, expansion, replacement, operation and/or maintenance of the EVRWA s Water Projects; or 2. Any failure by the EVRWA or any of its personnel, employees, consultants 23

27 or contractors, to perform its obligations under this Agreement or any negligent act or tortious act, error or omission of the EVRWA its personnel, employees, consultants or contractors. C. In case any claim shall be made or action brought against any person or entity for which indemnity may be sought against EVRWA, such indemnified person or entity shall promptly notify EVRWA in writing setting forth the particulars of such claim or action. The EVRWA shall have the right to select the legal representation of the indemnified individual. The EVRWA shall be responsible for the payment or timely reimbursement of all reasonable fees consistent with the rates charged by attorneys in similar matters in the Central Florida area, and expenses incurred in the defense of such claim or action. SECTION 4.07 SOVEREIGN IMMUNITY. The Member Governments intend to avail themselves of the benefits of Section and l63.01(9)(c), Florida Statues, and of other statutes and the common law governing sovereign immunity to the fullest extent possible. In accordance with Section (5)(o), Florida Statutes, therefore, the Member Governments are not jointly liable for the torts of the officers or employees of the EVRWA, or any other tort attributable to the EVRWA, and that only the EVRWA shall be liable for torts attributable to it or for torts of its officers or employees, and then only to the extent of the waiver of sovereign immunity or limitation of liability specified in Section , Florida Statutes. The Member Governments intend EVRWA to have all of the immunities from liability and exemptions from laws, ordinances, rules and common law which apply to the municipalities and counties of the State of Florida. Nothing in this Agreement is intended to inure to the benefit of any third party for the purpose of allowing any claim which would otherwise be barred under the doctrine of sovereign immunity or by operation of law. SECTION 4.08 NOTICE. 24

28 All notices, demands, requests and other communications hereunder shall be deemed sufficient and properly given, if in writing and delivered in person to the following addresses or sent by certified or registered mail, postage prepaid with return receipt requested, at such addresses; provided, if such notices, demands, requests or other communications are sent by mail, they shall be deemed as given on the third day following such mailing which is not a Saturday, Sunday or a day on which United States mail is not delivered: If to City of Daytona Beach: P.O. Box 2451 Daytona Beach, Florida If to City of South Daytona: Ridgewood Avenue South Daytona, Florida If to City of Holly Hill: 1065 Ridgewood Avenue Holly Hill, Florida If to City of Ormond Beach: P.O. Box 277 Ormond Beach, FL If to City of Daytona Beach Shores: 2990 S. Atlantic Avenue Daytona Beach Shores, Florida Any party may, by like notice, designate any further or different addresses to which subsequent notices shall be sent. Any notices hereunder signed on behalf of the notifying party by a duly authorized attorney at law shall be valid and effective to the same extent as if signed on behalf of such party by a duly authorized officer or employee. 25

29 SECTION 4.09 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof, and supersedes (except as expressly provided herein) all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties, whether oral or written, and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof, except as specifically set forth herein. SECTION 4.10 AMENDMENTS AND WAIVERS. No amendment, supplement, modification or waiver of this Agreement, including but not limited to the admission of additional Member Governments, shall be binding unless executed in writing and approved by all Member Governments. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of this Agreement, whether or not similar, unless otherwise expressly provided each such amendment, supplement, modification or waiver of this Agreement shall be filed with the Clerk of the Circuit Court in Volusia County. SECTION 4.11 BINDING EFFECT. This Agreement shall be binding upon the parties, their respective successors and assigns and shall inure to the benefit of the parties, their respective successors and assigns. SECTION 4.12 SEVERABILITY. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof; provided however, that if any material provision of this Agreement (including but not limited to the governance structure, Member Government s voting rights, or any other material change in the relative rights and responsibilities of EVRWA and the Member 26

30 Governments) is substantively modified by the Florida Legislature, regulatory authority or court, this Agreement may be terminated pursuant to Section 4.04 hereof. SECTION 4.13 EXECUTION IN COUNTERPARTS. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. SECTION 4.14 APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. IN WITNESS WHEREOF, the undersigned have set their hands and seals as of the day and year first above written. City of Holly Hill BY: Mayor Attest: BY: City Clerk Approved as to Form: City Attorney 27

31 City of Daytona Beach BY: Mayor Attest: BY: City Clerk Approved as to Form: City Attorney City of South Daytona BY: Mayor Attest: BY: City Clerk Approved as to Form: City Attorney 28

32 City of Ormond Beach BY: Mayor Attest: BY: City Manager Approved as to Form: City Attorney City of Daytona Beach Shores BY: Mayor Attest: BY: City Manager Approved as to Form: City Attorney 29

33 Eastern Volusia Regional Water Authority EVRWA RECEIVED SEP CITY MANAGEI1S OFFICE September 15,2010 Joyce Shanahan City Manager City of Ormond Beach 22 S. Beach Street Ormond Beach, FL Dear Ms. Shanahan: As you know, the Cities of Daytona Beach, Holly Hill and South Daytona have created the Eastern Volusia Regional Water Authority (EVRWA). At a recent EVRWA Board of Directors Meeting the Board voted to extend a 'dues less' offer to Ormond Beach to join and become a part of the EVRWA. The Board meets the second Friday of each month, at 11 :00 a.m. The next Board meeting is Friday, October 8, 2010 at 11:00 am at 301 South Ridgewood Avenue, Daytona Beach, Room 149-B. The Board of Directors would like to extend an invitation to you to attend the next meeting and become a part of the EVRWA. please contact me. If you have any questions regarding the EVRWA,