SB 368: "Northeast Regional Water Authority Act"; enact

Senate Bill 368

By: Senator Ginn of the 47th

A BILL TO BE ENTITLED

AN ACT

To create the Northeast Regional Water Authority; to provide a short title; to authorize such authority to acquire or construct regional water supply reservoirs; to operate and maintain self-liquidating projects embracing sources of water supply and the distribution and sale of water and other related facilities to individuals, public and private corporations, and political subdivisions; to provide for the membership and for appointment of members of the authority; to provide for quorums; to provide for the selection of officers; to provide definitions; to provide for the purpose of the authority; to confer and limit powers and impose duties on the authority; to authorize the authority to contract with others pertaining to the water utilities and facilities and to execute leases and all undertakings deemed necessary or convenient for the operation of such undertakings or projects; to provide for payments to site jurisdictions; to provide for the addition and withdrawal of member political subdivisions; to provide contracting guidelines; to authorize the issuance of revenue bonds or certificates of the authority payable from the revenues, tolls, fees, charges, and earnings of the authority and to pay the cost of such undertakings or projects; to provide for application of the "Revenue Bond Law"; to authorize the collection and pledging of the revenues and earnings of the authority for the payment of such bonds or certificates; to authorize the execution of trust indentures to secure the payment thereof and to define the rights of the holders of such obligations; to provide for the authority to condemn property of every kind; to authorize the issuance of refunding bonds or certificates; to fix the venue or jurisdiction of actions relating to any provisions of this Act; to provide for financial statements and audit reports; to provide that powers provided are supplemental; to provide tort immunity; to provide for liberal construction; to preserve powers of other political subdivisions and authorities; to provide for severability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Short title.

This Act shall be known and may be cited as the "Northeast Regional Water Authority Act."

SECTION 2.

Northeast Regional Water Authority.

(a) There is created a body corporate and politic, to be known as the Northeast Regional Water Authority, which shall be deemed to be a political subdivision of the State of Georgia and a public corporation, and by that name, style, and title said body may contract and be contracted with, bring and defend actions, sue and be sued, implead and be impleaded, and complain and defend in all courts. Unless the number of member entities of the authority is increased or decreased as provided for in this Act, the authority shall consist of six members as follows:

(1) One member to be appointed by the governing authority of Banks County;

(2) One member to be appointed by the governing authority of Franklin County;

(3) One member to be appointed by the governing authority of Madison County;

(4) One member to be appointed by the governing authority of the City of Commerce;

(5) One member to be appointed by the governing authority of the City of Elberton; and

(6) One member to be appointed by the governing body of the Jackson County Water and Sewer Authority.

In the event that one or more additional member entities join the authority as provided for in Section 9 of this Act, the governing authority or body of each such additional member entities shall appoint one member to the authority. In the event a member entity exercises its option to withdraw from the authority, the member appointed by such member entity shall cease to serve on the authority on the date that such withdrawal becomes effective.

(b) A majority of the total votes of the members of the authority shall constitute the quorum necessary for a meeting of the authority. Any vacancy in the position of a member appointed by a governing authority or body shall be filled by such governing authority or body. No vacancy on the authority shall impair the right of the quorum to exercise all the rights and perform all the duties of the authority. The members of the authority shall elect a chairperson and vice chairperson from among its members and shall also elect a secretary-treasurer who need not be a member of the authority. The members of the authority shall determine their compensation for serving in such capacities. The authority shall make rules and regulations for its own government. It shall have perpetual existence.

SECTION 3.

Definitions.

(a) As used in this Act, the term:

(1) "Authority" means the Northeast Regional Water Authority created by Section 2 of this Act.

(2) "Cost of the project" means the cost of construction, the cost of all lands, properties, rights, easements, and franchises acquired, the cost of all machinery and equipment, financing charges, interest prior to and during construction and for six months after completion of construction, the cost of engineering, architectural and legal expenses, the cost of plans and specifications, and other expenses necessary or incident to determining the feasibility or practicability of the project, administrative expense, and such other expenses as may be necessary or incident to the financing authorized in this Act, the construction of any project, the placing of the same in operation, and the condemnation of property necessary for such construction and operation. Any obligation or expense incurred for any of the foregoing purposes shall be regarded as part of the cost of the project and may be paid or reimbursed as such out of the proceeds of revenue bonds issued under the provisions of this Act for such project.

(3) "Member entity" means Banks County, Franklin County, Madison County, the City of Commerce, the City of Elberton, and the Jackson County Water and Sewer Authority, provided that political subdivisions may join or withdraw from the authority as provided for in Section 9 of this Act. Any political subdivision added shall be a member entity upon the final approval of its membership as provided for in Section 9. Upon withdrawing as provided for in Section 9 a political subdivision shall no longer be a member entity.

(4) "Northeast region" or "region" means the geographic area composed of Banks, Elbert, Franklin, Jackson, and Madison counties.

(5) "Project" means and includes the acquisition, construction, and operation of one or more regional water reservoirs, the acquisition of real property surrounding such reservoirs, contracting with the United States Army Corps of Engineers to access water resources, and all necessary and usual water facilities useful for obtaining one or more sources of water supply, the treatment of water, and the distribution and sale of water to users and consumers, including counties and municipalities for the purpose of resale, inside and outside the territorial boundaries of the member entities, and the operation, maintenance, additions, improvements, and extensions of such facilities so as to assure an adequate water utility system deemed by the authority to be necessary or convenient for the efficient operation of such type of undertaking, all in accordance with any applicable state-wide or regional water plan adopted pursuant to Article 8 of Chapter 5 of Title 12 of the O.C.G.A., the "Comprehensive State-wide Water Management Planning Act." "Project" shall also mean and include the acquisition, construction, and operation of recreational facilities on and around any regional water reservoir, the acquisition of real property surrounding such reservoir for such recreational facilities, the establishment of a permitting system for recreational activities, the collection of fees and rentals for permitting recreational activities, and the establishment of rules and regulations prohibiting, permitting, and governing recreational activities.

(6) "Public authority" means any entity which is created by the laws of this state, which is designated as an authority, and which provides services or facilities to the public.

(7) "Revenue bonds" and "bonds" mean revenue bonds and certificates as defined and provided for in Article 3 of Chapter 82 of Title 36 of the O.C.G.A., the "Revenue Bond Law," and such type of obligations may be issued by the authority as authorized under said article.

(8) "Site jurisdiction" means any municipality or county within which the authority causes to be located a reservoir or any facility or improvement for which property is acquired, by condemnation or purchase, in fee simple.

(b) Any project shall be deemed "self-liquidating" if, in the judgment of the authority, the revenues and earnings to be derived by the authority therefrom will be sufficient to pay the cost of operating, maintaining, repairing, improving, and extending the project and to pay the principal and interest of the revenue bonds that may be issued for the cost of such project or projects.

SECTION 4.

Purpose of the authority.

Without limiting the generality of any provisions of this Act, the general purpose of the authority is declared to be that of:

(1) Acquiring an adequate source or sources of water supply, treatment of such water, and thereafter the distribution of such water to the Northeast region and the various counties, municipalities, and political subdivisions in said region; and

(2) Providing, as the authority deems appropriate, recreational services and facilities upon the lands and waters owned or controlled by the authority. Such general purpose shall not restrict the authority from selling and delivering water directly to consumers in those areas where water distribution systems do not now exist and where neither any county, municipality, nor political subdivision deems it desirable or feasible to furnish water in such locality.

SECTION 5.

Powers.

The authority is authorized:

(1) To have a seal and alter the seal at pleasure;

(2) To acquire by purchase, lease, or otherwise and to hold, lease, and dispose of real and personal property of every kind and character for its corporate purposes;

(3) To acquire in its own name by purchase on such terms and conditions and in such manner as it may deem proper, or by condemnation in accordance with the provisions of any and all existing laws applicable to the condemnation of property for public use, real property, rights, or easements therein or franchises necessary or convenient for its corporate purposes, to use the same so long as its corporate existence shall continue, and to lease or make contracts with respect to the use of or to dispose of the same in any manner it deems to the best advantage of the authority, the authority being under no obligation to accept and pay for any property condemned under this Act except from the funds provided under the authority of this Act; in any proceedings to condemn, such orders may be made by the court having jurisdiction of the suit, action, or proceedings as may be just to the authority and to the owners of the property to be condemned; and no property shall be acquired under the provisions of this Act upon which any lien or other encumbrance exists, unless at the time such property is so acquired a sufficient sum of money is deposited in trust to pay and redeem the fair value of such lien or encumbrance;

(4) To appoint, select, and employ officers, agents, and employees, including engineering, architectural, and construction experts, fiscal agents, and attorneys, and fix their respective compensation;

(5) To make contracts and leases and to execute all instruments necessary or convenient for purposes of the authority, including, but not limited to, contracts for design, construction, or operation of projects and leases of projects or contracts with respect to the use of projects which it causes to be erected or acquired, and any and all persons, firms, and corporations and any and all political subdivisions, departments, institutions, or agencies of the state are authorized to enter into contracts, leases, or agreements with the authority upon such terms and for such purposes as they deem advisable; and, without limiting the generality of the above, authority is specifically granted to municipal corporations, counties, public authorities, and the authority to enter into contracts, lease agreements, or other undertakings relative to the refurnishing of water, water facilities, and related services, as well as to the furnishing of recreation, recreational facilities, and related services, by the authority to such municipal corporations, counties, and public authorities or relative to the furnishing of water or recreational facilities and services or both by municipal corporations, counties, public authorities, corporations, or individuals to the authority for a term not to exceed the term authorized by the Georgia Constitution or law for intergovernmental contracts. Without limiting the generality of the foregoing, the authority is specifically authorized to enter into contracts with the Water Supply Division of the Georgia Environmental Facilities Authority in accordance with Article 6 of Chapter 5 of Title 12 of the O.C.G.A., the "Georgia Water Supply Act of 2008," for the purposes stated therein;

(6) To construct, erect, acquire, own, lease, repair, remodel, maintain, add to, extend, improve, equip, operate, and manage projects as defined in paragraph (6) of Section 3 of this Act; the cost of any such project shall be paid in whole or in part from the proceeds and revenue bonds of the authority; from such proceeds and any grant from the United States of America, the State of Georgia, any agency, authority, or instrumentality thereof; or from a private party;

(7) To contract with the United States Army Corps of Engineers to access to water resources;

(8) To purchase water from other sources, public or private, for distribution and sale to water users and consumers;

(9) To accept loans and grants of money, materials, or property of any kind from the United States of America, the State of Georgia, or any agency, authority, or instrumentality thereof upon such terms and conditions as the United States of America, the State of Georgia, or such agency, authority, or instrumentality may impose;

(10) To borrow money for any of its corporate purposes, to issue negotiable revenue bonds payable solely from funds pledged for that purpose, and to provide for the payment of the same and for the rights of the holders thereof;

(11) To exercise any power which is usually possessed by private corporations performing similar functions and which is not in conflict with the Constitution and laws of this state; and

(12) To do all things necessary or convenient to carry out the powers expressly given in this Act.

SECTION 6.

Limitations of power.

The authority shall:

(1) Not obligate any member entity to issue or guarantee revenue bonds, nor shall the authority bind the member entity to any capital indebtedness contract until that member entity has approved such issuance or guarantee of an indebtedness contract or revenue bonds by official action or vote as may be required by law;

(2) Provide for, in a manner consistent with and subject to all state and federal laws and regulations, provide for stream withdrawal rights among member entities prior to the funding of any reservoir project; and

(3) Only distribute water on a wholesale basis to member entities and other retail water providers and shall not be authorized to provide or undertake retail water distribution services.

SECTION 7.

Services to member entities.

The authority shall provide water services and facilities to each member entity so long as such political subdivision remains a member entity.

SECTION 8.

Payments to site jurisdictions.

The authority shall be authorized to make an annual payment on or before November 15 of each year to any site jurisdiction within which is constructed a reservoir or any facility or improvement for which property is acquired, by condemnation or purchase, by the authority in fee simple. If such payment is made, the amount shall be at least equal to the ad valorem taxes which would be paid by a nonexempt property owner calculated as follows: the value of the property for ad valorem tax purposes shall be established based upon the average per-acre value for agriculturally assessed property within the site jurisdiction for the current tax year, using the millage rate adopted for the current tax year. The authority shall be further authorized to make an additional payment to the site jurisdiction based on the value of improvements or facilities constructed on property acquired in fee simple within such jurisdiction or an additional payment made on some other basis.

SECTION 9.

Addition or withdrawal of member political subdivisions.

(a) Any county adjacent to, or any municipality located within, one or more of the member entities or Jackson County may request to join the authority as a member entity. Applications to become a member entity must be approved by a two-thirds' vote of the authority and shall be conditioned upon the political subdivision agreeing to such terms and conditions required by the authority to ensure that the addition of the political subdivision does not disadvantage the current member entities. Political subdivisions joining the authority pursuant to this section may be required by the authority to provide financial support for, or buy into, any existing or proposed projects or obligations of the authority.

(b) The governing authority or body of any member entity may withdraw from the authority by adopting a resolution, at any time, declaring that such political subdivision shall not be a member entity under this Act. Such withdrawal by any member entity from the authority shall not affect any previously incurred obligations with respect to the issuance of or payment of any bonds, certificates, or other obligations of the authority incurred during such political subdivision's membership in the authority.

SECTION 10.

Public works construction contracts.

Public works construction projects of the authority, as defined in Chapter 91 of Title 36 of the O.C.G.A., the "Georgia Local Government Public Works Construction Law," shall be subject to the provisions of said chapter.

SECTION 11.

Revenue bonds.

The authority, or any authority or body which may in the future succeed to the powers, duties, and liabilities vested in the authority created by this Act, is authorized, at one time or from time to time, to provide by resolution for the issuance of negotiable revenue bonds of the authority, for the purpose of paying all or any part of the cost of any one or more projects. Revenue bonds shall be undertaken, issued, priced, validated, sold, paid, redeemed, refunded, secured, and replaced in accordance with the provisions of this Act.

SECTION 12.

Revenue bonds; conditions precedent to issuance.

The authority shall adopt a resolution authorizing the issuance of the revenue bonds. In the resolution, the authority shall determine that the project financed with the proceeds of such revenue bonds is self-liquidating. Revenue bonds may be issued without any other proceedings or the happening of any other conditions or things other than those proceedings, conditions, and things which are specified or required by this Act. Any resolution providing for the issuance of revenue bonds under the provisions of this Act shall become effective immediately upon its passage and need not be published or posted, and any such resolution may be passed at any regular or special meeting of the authority by a majority of its members present and voting.

SECTION 13.

Credit not pledged.

Revenue bonds of the authority shall not be deemed to constitute a debt of any member entity, any other county, municipality, local authority, or political subdivision in the region that is not a member entity, or the State of Georgia, nor a pledge of the faith and credit of this state or such county or municipality, but such revenue bonds shall be payable solely from the fund hereinafter provided for. The issuance of such revenue bonds shall not directly, indirectly, or contingently obligate this state or such county or municipality to levy or pledge any form of taxation whatsoever for payment of such revenue bonds or to make any appropriation for their payment, and all such revenue bonds shall contain recitals on their face covering substantially the foregoing provisions of this section. Notwithstanding the foregoing provisions, this Act shall not affect the ability of the authority and any political subdivision to enter into an intergovernmental contract pursuant to which the political subdivision agrees to pay amounts sufficient to pay operating charges and other costs of the authority or any project including, without limitation, the principal of and interest on revenue bonds in consideration for services or facilities of the authority.

SECTION 14.

Trust indenture as security.

In the discretion of the authority, any issuance of revenue bonds may be secured by a trust indenture by and between the authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without this state. Either the resolution providing for the issuance of the revenue bonds or such trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the authority in relation to the acquisition and construction of the project, the maintenance, operation, repair, and insuring of the project, and the custody, safeguarding, and application of all money.

SECTION 15.

Trust indenture as security; remedies of bondholders.

Any holder of revenue bonds and the trustee under the trust indenture, if any, except to the extent that the rights given herein may be restricted by resolution passed before the issuance of the revenue bonds or by the trust indenture, may, either at law or in equity, by suit, action, mandamus, or other proceedings, protect and enforce any and all rights it may have under the laws of the state, including specifically, but without limitation, the Revenue Bond Law, or granted hereunder or under such resolution or trust indenture and may enforce and compel performance of all duties required by this Act or by such resolution or trust indenture to be performed by the authority or any officer thereof, including the fixing, charging, and collecting of revenues, fees, tolls, fines, and other charges for the use of the facilities and services furnished.

SECTION 16.

Trust indenture as security; validation.

Revenue bonds and the security therefor shall be issued, confirmed, and validated in accordance with the provisions of the Revenue Bond Law. The petition for validation shall also make a member entity or member entities party defendant to such action if such political subdivision or subdivisions have contracted with the authority for services or facilities relating to the project for which revenue bonds are to be issued and sought to be validated, and such defendant shall be required to show cause, if any exists, as to why such contract or contracts shall not be adjudicated as a part of the basis for the security for the payment of any such revenue bonds. The revenue bonds, when validated, and the judgment of validation shall be final and conclusive with respect to such revenue bonds and the security for the payment thereof and interest thereon and against the authority and all other defendants.

SECTION 17.

To whom proceeds of bonds shall be paid.

In the resolution providing for the issuance of revenue bonds or in the trust indenture, the authority shall provide for the payment of the proceeds of the sale of the revenue bonds to any officer or person who, or any agency, bank, or trust company which, shall act as trustee of such funds and shall hold and apply the same to the purposes thereof, subject to such regulations as this Act and such resolution or trust indenture may provide.

SECTION 18.

Sinking fund.

The money received pursuant to an intergovernmental contract and the revenues, fees, tolls, fines, charges, and earnings derived from any particular project or projects, regardless of whether or not such revenues, fees, tolls, fines, charges, and earnings were produced by a particular project for which revenue bonds have been issued, unless otherwise pledged and allocated, may be pledged and allocated by the authority to the payment of the principal and interest on revenue bonds of the authority as the resolution authorizing the issuance of the revenue bonds or the trust indenture may provide. Such funds so pledged from whatever source received may be set aside at regular intervals as may be provided in such resolution or trust indenture into a sinking fund, which sinking fund shall be pledged to and charged with the payment of:

(1) The interest upon such revenue bonds as the same shall fall due;

(2) The principal or purchase price of such revenue bonds as the same shall fall due;

(3) Any premium upon such revenue bonds as the same shall fall due;

(4) The purchase of such revenue bonds in the open market; and

(5) The necessary charges of the paying agent for paying principal and interest. The use and disposition of such sinking fund shall be subject to such regulations as may be provided in the resolution authorizing the issuance of the revenue bonds or in the trust indenture, but, except as may otherwise be provided in such resolution or trust indenture, such sinking fund shall be maintained as a trust account for the benefit of all revenue bonds without distinction or priority of one over another.

SECTION 19.

Venue and jurisdiction.

Any action to protect or enforce any rights under this Act or under Article 3 of Chapter 82 of Title 36 of the O.C.G.A., the "Revenue Bond Law," or any suit or action against the authority shall be brought in any superior court with jurisdiction over a member entity, and any action pertaining to validation of any bonds issued under this Act shall likewise be brought in said court, which shall have jurisdiction of such actions.

SECTION 20.

Interest of bondholders protected.

While any of the revenue bonds issued by the authority remain outstanding, the powers, duties, or existence of such authority or its officers, employees, or agents shall not be diminished or impaired in any manner that will affect adversely the interests and rights of the holders of such revenue bonds; and no other entity, department, agency, or authority shall be created which will compete with the authority to such an extent as to affect adversely the interests and rights of the holders of such revenue bonds, nor shall the state itself so compete with the authority. The provisions of this Act shall be for the benefit of the authority and the holders of any such revenue bonds, and, upon the issuance of such revenue bonds under the provisions of this Act, shall constitute a contract with the holders of such revenue bonds.

SECTION 21.

Moneys received considered trust funds.

All moneys received pursuant to the authority of this Act, whether as proceeds from the sale of revenue bonds, as grants or other contributions, or as revenues, fees, and earnings, shall be deemed to be trust funds to be held and applied solely as provided in this Act.

SECTION 22.

Rates, charges, and revenues; use.

The authority is authorized to prescribe, fix, and collect rates, fees, tolls, or charges and to revise from time to time and collect such rates, fees, tolls, or charges for the services, facilities, or commodities furnished and, in anticipation of the collection of the revenues of such undertaking or project, to issue revenue bonds as provided in this Act to finance in whole or in part the cost of the acquisition, construction, reconstruction, improvement, betterment, or extension of a project and to pledge to the punctual payment of said bonds and interest thereon all or any part of the revenues of such undertakings or projects, including the revenues of improvements, betterments, or extensions thereafter made.

SECTION 23.

Rules and regulations for operation of projects.

It shall be the duty of the authority to prescribe rules and regulations for the operation of the project or projects constructed under the provisions of this Act, including the basis on which water service and facilities shall be furnished.

SECTION 24.

Financial statements and audit reports.

(a) The authority shall establish a fiscal year for its operation, and, as soon after the end of each fiscal year as is feasible, the authority shall cause to be prepared and printed a report and financial statement of the authority's operations for the fiscal year just ended and of its assets and liabilities. A copy of such report shall be sent to the governing authority or body of each member entity, and additional copies shall be made available for distribution to the general public on written request therefor, subject to the provisions of Article 4 of Chapter 18 of Title 50 of the O.C.G.A.

(b) The authority shall appoint in due time each year a firm of independent certified public accountants as auditors who shall examine the books, records, and accounts of the authority for the purpose of auditing and reporting upon its financial statement for such year. The report of such auditors shall be appended to such financial statement.

(c) Whenever the authority deems it necessary or advisable, it shall be authorized to employ a firm of qualified independent engineers to survey the condition of the authority's facilities and operations from an engineering standpoint and to make a report thereof, together with its recommendations for improvement in its physical facilities and operating procedures. A copy of such report shall be sent to the governing authority or body of each member entity, and additional copies shall be made available for distribution to the general public on written request therefor.

SECTION 25.

Powers declared supplemental and additional.

The foregoing sections of this Act shall be deemed to provide an additional and alternative method for doing the things authorized thereby, shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as being in derogation of any powers now existing.

SECTION 26.

Tort immunity.

To the extent permitted by law, the authority shall have the same immunity and exemption from liability for torts and negligence as a Georgia county; and the officers, agents, and employees of the authority when in the performance of the work of the authority shall have the same immunity and exemption from liability for torts and negligence as the officers, agents, and employees of a county when in the performance of their public duties or work of the county.

SECTION 27.

Liberal construction of Act.

This Act, being for the welfare of various political subdivisions of this state and its inhabitants, shall be liberally construed to effect the purposes hereof.

SECTION 28.

Powers of counties, municipalities, and other local authorities. This Act shall not in any way take from any counties, municipalities, political subdivisions, or other local authorities the authorization to own, operate, and maintain reservoirs, water systems, or recreational facilities on or around reservoirs or issue revenue certificates as is provided by Article 3 of Chapter 82 of Title 36 of the O.C.G.A., the "Revenue Bond Law."

SECTION 29.

Severability; effect of partial invalidity of Act.

The provisions of this Act are severable, and if any of its provisions shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions.

SECTION 30.

Repealer.

All laws and parts of laws in conflict with this Act are repealed.