HB 392: "An Act authorizing the establishment of regional solid waste management authorities."
00 HOUSE BILL NO. 392 01 "An Act authorizing the establishment of regional solid waste management authorities." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. AS 29.35.070(a) is amended to read: 04 (a) The assembly acting for the area outside all cities in the borough and the 05 council acting for the area in a city may regulate, fix, establish, and change the rates 06 and charges imposed for a utility service provided to the municipality or its inhabitants 07 by a utility that is not subject to regulation under AS 42.05 unless that utility is 08 exempted from regulation under AS 42.05.711(a), (d) - (k), [OR] (o), or (p), or is 09 exempted under regulations adopted under AS 42.05.810 from complying with all or 10 part of AS 42.05.141 - 42.05.721. 11 * Sec. 2. AS 29.35 is amended by adding new sections to read: 12 Article 10. Regional Solid Waste Management Authorities. 13 Sec. 29.35.800. Purpose of authorities. The purpose of a regional solid waste 14 management authority is to provide environmentally sound and cost-effective 15 management of solid waste, including storage, collection, transportation, separation,
01 processing, recycling, and disposal, to protect the public health, safety, and welfare; 02 improve the environment of the state; recover resources and energy; and prevent 03 pollution. 04 Sec. 29.35.805. Establishment of regional solid waste management 05 authorities. (a) A regional solid waste management authority may be created in one of 06 the following ways: 07 (1) the governing body of a municipality may, by ordinance, create a 08 regional solid waste management authority as a public corporation of the municipality; 09 (2) the governing bodies of two or more municipalities may, by 10 substantially identical ordinances adopted by each of the governing bodies, create a 11 regional solid waste management authority as a public corporation of the 12 municipalities. 13 (b) One or more municipalities may join an authority established under (a)(1) 14 or (2) of this section upon the adoption of substantially identical ordinances by the 15 governing bodies of each affected municipality. 16 (c) A regional solid waste management authority created under this section is 17 a body corporate and politic and an instrumentality of the municipality or 18 municipalities creating it but has a separate and independent legal existence. 19 (d) Creation of a regional solid waste management authority under 20 AS 29.35.800 - 29.35.925 is an exercise of a municipality's extraterritorial jurisdiction 21 under AS 29.35.020. 22 (e) The enabling ordinance by which a regional solid waste management 23 authority is established must specify the powers, boundaries, and limitations of the 24 regional solid waste management authority. 25 (f) An ordinance creating a regional solid waste management authority must 26 be approved by the voters of the municipality or municipalities participating in the 27 authority for the authority to be established. 28 (g) Nothing in AS 29.35.800 - 29.35.925 prevents a municipality or 29 municipalities from creating or participating in a public corporation, including a 30 regional solid waste management authority, in any form or manner not prohibited by 31 law. However, AS 29.35.800 - 29.35.925 only apply to and may only be used by a
01 regional solid waste management authority created under this section. 02 Sec. 29.35.810. Dissolution of a regional solid waste management 03 authority. (a) The enabling ordinance creating a regional solid waste management 04 authority must provide for the manner by which a regional solid waste management 05 authority may be dissolved. 06 (b) If an authority ceases to exist, its assets shall be distributed to each 07 municipality that participated in the authority in proportion to the municipality's 08 contribution to the authority less any outstanding debt or obligation of that 09 municipality to the authority. Any obligation to bondholders then outstanding shall 10 first be satisfied in full. 11 Sec. 29.35.815. Municipal property. (a) A municipality may transfer and 12 otherwise convey or lease real property and improvements to real property to an 13 authority for use by the authority for the purposes set out in the ordinance adopted 14 under AS 29.35.805. 15 (b) A municipality may transfer and otherwise assign or lease personal 16 property to an authority for use by the authority for the purposes set out in the 17 ordinance adopted under AS 29.35.805. 18 Sec. 29.35.820. Powers. If provided in the enabling ordinance, an authority 19 may 20 (1) sue and be sued; 21 (2) have a seal and alter it; 22 (3) acquire an interest in a project as necessary or appropriate to 23 provide financing for the project, whether by purchase, gift, or lease; 24 (4) lease to others a project acquired by the authority on the terms and 25 conditions the authority may consider advisable, including, without limitation, 26 provisions for purchase or renewal; 27 (5) sell, by installment sale or otherwise, exchange, donate, convey, or 28 encumber in any manner by mortgage or by creation of another security interest, real 29 or personal property owned by it or in which it has an interest, including a project, 30 when, in the judgment of the authority, the action is in furtherance of the authority's 31 purposes;
01 (6) accept gifts, grants, or loans, under the terms and conditions 02 imposed under the gift, grant, or loan, and enter into contracts, conveyances, or other 03 transactions with a federal agency or an agency or instrumentality of the state, a 04 municipality, a private organization, or another person; 05 (7) deposit or invest its funds, subject to agreements with bondholders; 06 (8) purchase or insure loans to finance the costs of projects; 07 (9) provide for security within the boundaries of the authority; 08 (10) enter into loan agreements for one or more projects on the terms 09 and conditions the authority considers advisable; 10 (11) acquire, manage, and operate projects the authority considers 11 necessary or appropriate to serve the authority's purposes; 12 (12) assist private lenders to make loans to finance the costs of projects 13 through loan commitments, short-term financing, or otherwise; 14 (13) charge fees or other forms of remuneration for the use or 15 possession of projects under the agreements described in this section; other 16 agreements relating to the projects, covenants, or representations made in bond 17 documents relating to the projects; or regulations of the authority relating to the 18 projects; 19 (14) exercise the powers of eminent domain and declaration of taking 20 within its physical boundaries under AS 29.35.030 to acquire land or materials for 21 authority purposes; 22 (15) regulate land use within the boundaries of the authority; 23 (16) defend and indemnify a current or former member of the board, 24 employee, or agent of the authority against all costs, expenses, judgments, and 25 liabilities, including attorney fees, incurred by or imposed on that person in connection 26 with a civil or criminal action in which the person is involved because of the person's 27 affiliation with the authority if the person acted in good faith on behalf of the authority 28 and within the scope of the person's official duties and powers; 29 (17) purchase insurance to protect and hold harmless its employees, 30 agents, and board members from an action, claim, or proceeding arising out of the 31 performance of, purported performance of, or failure to perform in good faith, duties
01 for the authority or arising out of employment with the authority and to hold them 02 harmless from expenses connected with the defense, settlement, or monetary 03 judgments from that action, claim, or proceeding; the purchase of insurance is subject 04 to the discretion of the board; insurance purchased under this paragraph is not 05 compensation to the insured person; and 06 (18) protect its assets, services, and employees by purchasing 07 insurance or providing for certain self-insurance retentions; an authority shall also 08 maintain casualty, property, business interruption, marine, boiler and machinery, 09 pollution liability, and other insurance in amounts reasonably calculated to cover 10 potential claims against the authority or a municipality for bodily injury, death or 11 disability, and property damage that arises from or is related to authority operations 12 and activities. 13 Sec. 29.35.825. Bonds of a regional solid waste management authority; 14 superior court jurisdiction. (a) If authorized by the enabling ordinance, an authority 15 may borrow money and issue bonds on which the principal and interest are payable 16 (1) exclusively from the income and receipts of, or other money 17 derived from, the project financed with the proceeds of the bonds; 18 (2) exclusively from the income and receipts of, or other money 19 derived from, designated projects or other sources, whether they are financed, insured, 20 or guaranteed in whole or in part with the proceeds of the bonds; or 21 (3) from its income and receipts or a designated part or parts of them. 22 (b) All bonds shall be sold at public or private sale in the manner, for the price 23 or prices, and at the time or times the authority may determine. 24 (c) Before issuing bonds, an authority shall provide for consideration at least 25 sufficient, in the judgment of the authority, to 26 (1) pay the principal of and interest on the bonds as they become due; 27 (2) create and maintain the reserves for the payment that the authority 28 considers necessary or desirable; and 29 (3) meet all obligations in connection with the lease or agreement and 30 all costs necessary to service the bonds, unless the lease or agreement provides that the 31 obligations are to be met or costs are to be paid by a party other than the authority.
01 (d) Bonds shall be authorized by resolution of the authority and shall be dated 02 and mature as the resolution may provide, except that a bond may not mature more 03 than 40 years after the date of its issue. Bonds shall bear interest at the rate or rates, be 04 in the denominations, be in the form, either coupon or registered, carry the registration 05 privileges, be executed in the manner, be payable in the medium of payment, at the 06 place or places, and be subject to the terms of redemption that the resolution or a 07 subsequent resolution may provide. 08 (e) All bonds issued under this section, regardless of form or character, are 09 negotiable instruments for all the purposes of AS 45.01 - AS 45.08, AS 45.12, 10 AS 45.14, and AS 45.29 (Uniform Commercial Code). 11 (f) The superior court has jurisdiction to hear and determine suits, actions, or 12 proceedings relating to an authority, including suits, actions, or proceedings brought to 13 foreclose or otherwise enforce a mortgage, pledge, assignment, or security interest 14 brought by or for the benefit or security of a holder of the authority's bonds or by a 15 trustee for or other representative of the holders. 16 Sec. 29.35.830. Bonds eligible for investment. Bonds issued under 17 AS 29.35.825 are securities in which public officers and public bodies of the state and 18 its political subdivisions, insurance companies, trust companies, banks, investment 19 companies, executors, administrators, trustees, and other fiduciaries may properly and 20 legally invest funds, including capital in their control or belonging to them. The bonds 21 may be deposited with a state or municipal officer of an agency or political 22 subdivision of the state for any purpose for which the deposit of bonds of the state is 23 authorized by law. 24 Sec. 29.35.835. Validity of pledge. The pledge of revenue of an authority to 25 the payment of the principal or interest on bonds or notes of the authority is valid and 26 binding from the time the pledge is made, and the revenue is immediately subject to 27 the lien of the pledge without physical delivery or further act. The lien of a pledge is 28 valid and binding against all parties having claims of any kind against the authority 29 irrespective of whether those parties have notice of the lien of the pledge. 30 Sec. 29.35.840. Credit of state or a municipality not pledged. (a) The state 31 and municipalities participating in an authority are not liable for the debts of that
01 authority. Bonds issued under AS 29.35.825 are payable solely from the revenue of 02 the authority and do not constitute a 03 (1) debt, liability, or obligation of the state or a municipality; or 04 (2) pledge of the faith and credit of the state or a municipality. 05 (b) An authority may not pledge the credit or the taxing power of the state or 06 its municipalities. A bond issued under AS 29.35.825 must contain on its face a 07 statement that 08 (1) the authority is not obligated to pay it or the interest on it except 09 from the revenue pledged for it; and 10 (2) the faith and credit of the taxing power of the state or of a political 11 subdivision of the state is not pledged to the payment of it. 12 Sec. 29.35.845. Pledges of the state and municipalities. The state and 13 municipalities participating in an authority pledge to and agree with the holders of 14 bonds issued under AS 29.35.825 and with the federal agency, if any, that loans or 15 contributes funds for a project of the authority that the state and the municipalities 16 participating in the authority will not limit or alter the rights and powers vested in the 17 authority by its enabling ordinance or other law so that it is unable to fulfill the terms 18 of a contract made by it with those holders or that federal agency or in any way impair 19 the rights and remedies of those holders or that federal agency until the bonds, 20 together with the interest on them and interest on unpaid installments of interest, and 21 all costs and expenses in connection with an action or proceeding by or on behalf of 22 those holders or that federal agency, are fully met and discharged. An authority may 23 include this pledge and agreement of the state and the municipalities participating in 24 the authority, to the extent that it refers to holders of bonds of the authority, in a 25 contract with those holders, and to the extent that it relates to a federal agency, in a 26 contract with that federal agency. 27 Sec. 29.35.850. Limitation of liability. A liability incurred by an authority 28 shall be satisfied exclusively from the assets or revenue of the authority. A creditor or 29 other person does not have a right of action against the state or a municipality 30 participating in an authority because of a debt, obligation, or liability of an authority. 31 Sec. 29.35.855. Limitation on personal liability. A board member or
01 employee of an authority is not subject to personal liability or accountability because 02 of the execution or issuance of bonds. 03 Sec. 29.35.860. Fidelity bond. An authority shall obtain a fidelity bond in an 04 amount determined by the board for board members and each executive officer 05 responsible for accounts and finances of that authority. A fidelity bond must be in 06 effect during the entire tenure in office of the bonded person. 07 Sec. 29.35.865. No taxing authority. An authority may not levy an income or 08 other tax. 09 Sec. 29.35.870. Exemption from taxation. (a) An authority exercising the 10 powers granted by the enabling ordinance under AS 29.35.800 - 29.35.925 is in all 11 respects for the benefit of the people of the municipalities participating in the authority 12 and the people of the state in general, for their well-being and prosperity, and for the 13 improvement of their social and economic condition. The real and personal property of 14 an authority and its assets, income, and receipts are exempt from all taxes and special 15 assessments of the state or a political subdivision of the state. 16 (b) Bonds issued by the authority under AS 29.35.825 are issued for an 17 essential public and governmental purpose; therefore, the bonds, the interest and 18 income from them, and all fees, charges, funds, revenue, income, and other money 19 pledged or available to pay or secure the payment of the bonds or interest on them are 20 exempt from taxation except for inheritance, transfer, and estate taxes. 21 (c) Notwithstanding the provisions of (a) of this section, an authority and the 22 municipalities participating in the authority may enter into agreements under which 23 the authority agrees to pay the participating municipalities' payments in lieu of taxes 24 and special assessments on real and personal property of the authority that is within 25 the taxing jurisdiction of the municipality. 26 (d) Nothing in this section creates a tax exemption with respect to the interests 27 of a business enterprise or other person, other than the authority, in property, assets, 28 income, or receipts, whether or not financed under AS 29.35.800 - 29.35.925. 29 Sec. 29.35.875. Administration of regional solid waste management 30 authorities; board. (a) An authority shall be governed by a board of directors, which 31 shall exercise the powers of the authority. The enabling ordinance establishing the
01 authority under AS 29.35.805 must specify the number, qualifications, manner of 02 appointment or election, and terms of members of the board. 03 (b) The board shall appoint a chief executive officer of the authority, who 04 serves at the pleasure of the board. The board shall fix the compensation of the chief 05 executive officer. 06 Sec. 29.35.880. Continuation of collective bargaining agreements; 07 application of AS 23.40.070 - 23.40.260. (a) A collective bargaining agreement for 08 employees of the state or its political subdivisions who are transferred to an authority 09 under AS 29.35.800 - 29.35.925 remain in effect for the term of the agreement or one 10 year, whichever is longer, and are binding on the authority unless the parties agree to 11 the contrary before the agreement expires. A labor-management negotiation impasse 12 declared after a transfer of employees under this subsection but before the negotiation 13 of a new collective bargaining agreement shall be resolved as provided in the 14 collective bargaining agreement or, if the collective bargaining agreement does not 15 provide for a resolution, as provided in AS 23.40.070 - 23.40.260. 16 (b) Employees of the state or a political subdivision of the state transferred to 17 an authority shall retain, for one year following the date of transfer or for the duration 18 of a collective bargaining agreement transferred under (a) of this section, whichever is 19 greater, all rights of participation in fringe benefit programs available to the employees 20 on the day before the transfer, or in substantially equivalent programs. 21 (c) AS 23.40.070 - 23.40.260 apply to employees of an authority established 22 under AS 29.35.800 - 29.35.925 unless all municipalities participating in the authority 23 are exempt under sec. 4, ch. 113, SLA 1972. 24 Sec. 29.35.885. Bylaws and regulations. (a) A board shall adopt bylaws and 25 appropriate regulations consistent with the enabling ordinance to carry out its 26 functions and purposes. 27 (b) A board shall adopt bylaws as soon after the authority is established as 28 possible and may, from time to time, amend those bylaws. The bylaws may contain 29 any provision not in conflict with law for managing the business of the authority and 30 for conducting the affairs of the authority, including provisions relating to 31 (1) the time, place, and manner of calling, conducting, and giving
01 notice of meetings of the board and committees of the board, if any; 02 (2) the compensation of directors, if any; 03 (3) the appointment and authority of committees of the board, if any; 04 (4) the appointment, duties, compensation, and tenure of officers, 05 directors, the chief executive officer, and other employees, if any; 06 (5) procedures for adopting regulations; 07 (6) procedures for adopting bylaws; 08 (7) procedures for making annual reports and financial statements; and 09 (8) other matters for the conduct of business by the board. 10 Sec. 29.35.890. Authority subject to public records and open meetings 11 laws. An authority established under AS 29.35.805 is subject to AS 40.25.110 - 12 40.25.220 and to AS 44.62.310 and 44.62.312. 13 Sec. 29.35.895. Annual report. Within 90 days following the end of the fiscal 14 year of an authority, the board shall distribute to the mayor and governing body of 15 each municipality participating in the authority a report describing the operations and 16 financial condition of the authority during the preceding fiscal year. The report may 17 include suggestions for legislation relating to the structure, powers, or duties of the 18 authority or operation of facilities of the authority. The report must itemize the cost of 19 providing each category of service offered by the authority and the income generated 20 by each category. 21 Sec. 29.35.900. Audits. (a) The board shall have the financial records of an 22 authority audited annually by an independent certified public accountant. 23 (b) An authority shall make all of its financial records available to an auditor 24 appointed by a municipality participating in the authority for examination. 25 Sec. 29.35.905. Remedies. A holder of bonds or notes or coupons attached to 26 the bonds issued by an authority under AS 29.35.825, and a trustee under a trust 27 agreement or resolution authorizing the issuance of the bonds, except as restricted by a 28 trust agreement or resolution, either at law or in equity, may 29 (1) enforce all rights granted under AS 29.35.800 - 29.35.925, the trust 30 agreement or resolution, or another contract executed by the authority; and 31 (2) compel the performance of all duties of the authority required by
01 AS 29.35.800 - 29.35.925 or the trust agreement or resolution. 02 Sec. 29.35.910. Claims. In judicial and regulatory proceedings by and against 03 an authority, an authority and its board members and employees enjoy the same rights, 04 privileges, and immunities as a municipality and municipal officers. 05 Sec. 29.35.915. Conflicting laws inapplicable. If a provision of AS 29.35.800 06 - 29.35.925 conflicts with another provision of this title, the provision of AS 29.35.800 07 - 29.35.925 prevails. 08 Sec. 29.35.920. Definitions. In AS 29.35.800 - 29.35.925, unless the context 09 otherwise requires, 10 (1) "authority" means a regional solid waste management authority 11 established under AS 29.35.805; 12 (2) "board" means the board of directors of an authority; 13 (3) "bonds" includes bonds, bond anticipation notes, notes, refunding 14 bonds, or other forms of indebtedness of the authority; 15 (4) "bylaws" means the guidelines adopted by and amended by the 16 board from time to time under AS 29.35.800 - 29.35.925; 17 (5) "costs of projects" means all or any part of the aggregate costs 18 determined by an authority to be necessary to finance the construction or acquisition 19 of a project, including, without limitation, the cost of acquiring real property; the cost 20 of constructing buildings and improvements; the cost of financing the project, 21 including, without limitation, interest charges before, during, or after construction or 22 acquisition of the project; costs related to determining the feasibility of, planning, 23 design of, or engineering of the project and, to the extent determined necessary by the 24 authority, administrative expenses; the costs of machinery or equipment to be used in 25 the operation or rehabilitation of a solid waste management facility or operation; and 26 all other costs, charges, fees, and expenses that the authority determines necessary to 27 finance the construction or acquisition; 28 (6) "land" or "real property" means any interest in real property, 29 including tidal and submerged land, any right appurtenant to the interest, and, without 30 limitation, interests less than full title, such as easements, uses, leases, and licenses; 31 (7) "project" means a solid waste management facility, and
01 administrative facilities, including property necessary for solid waste management; 02 (8) "regulation" means a standard of general application or the 03 amendment, supplement, revision, or repeal of a standard adopted by an authority to 04 implement, interpret, or make specific the law enforced or administered by it or to 05 govern its procedure. 06 Sec. 29.35.925. Short title. AS 29.35.800 - 29.35.925 may be cited as the 07 Regional Solid Waste Management Authority Act. 08 * Sec. 3. AS 42.05.711 is amended by adding a new subsection to read: 09 (p) a regional solid waste management authority established under 10 AS 29.35.800 - 29.35.925 is exempt from regulation under this chapter, except that a 11 solid waste management authority is subject to this chapter if it directly competes with 12 a utility subject to this chapter. 13 * Sec. 4. AS 44.85.410(3) is amended to read: 14 (3) "municipal bond" means a bond or note or evidence of debt that 15 constitutes 16 (A) a general obligation bond that is a direct and general 17 obligation of a political subdivision of the state, all the taxable property within 18 which is subject to taxation to pay the bond, note, or evidence of debt, and the 19 interest without limitation, as to rate or amount generally to the extent 20 permitted by law or to avoid a default as provided for second class cities under 21 AS 29.45.590; 22 (B) a revenue bond, except a revenue bond for electrical 23 generation purposes other than diesel-powered generation, issued by a 24 municipality, a solid waste management authority, or a port authority that 25 pledges the revenue of a revenue-producing capital improvement and that is 26 payable solely from the revenue of the revenue-producing capital 27 improvement; 28 (C) a general obligation bond or revenue bond combined or 29 additionally secured; 30 (D) a bond of a borough issued as a general obligation of a 31 service area under AS 29.47.440 or former AS 29.58.340; or
01 (E) an obligation of a municipality secured only by 02 (i) special assessments on benefited property; 03 (ii) tax increments and a letter of credit or equal 04 security; or 05 (iii) a lease for equipment or building improvements if 06 the state is not a lessee;