CSHB 392(CRA): "An Act authorizing the establishment of regional solid waste management authorities; relating to withdrawal from a port authority by a municipality; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 392(CRA) 01 "An Act authorizing the establishment of regional solid waste management authorities; 02 relating to withdrawal from a port authority by a municipality; and providing for an 03 effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 29.35.070(a) is amended to read: 06 (a) The assembly acting for the area outside all cities in the borough and the 07 council acting for the area in a city may regulate, fix, establish, and change the rates 08 and charges imposed for a utility service provided to the municipality or its inhabitants 09 by a utility that is not subject to regulation under AS 42.05 unless that utility is 10 exempted from regulation under AS 42.05.711(a), (d) - (k), [OR] (o), or (p), or is 11 exempted under regulations adopted under AS 42.05.810 from complying with all or 12 part of AS 42.05.141 - 42.05.721. 13 * Sec. 2. AS 29.35.610(b) is amended to read: 14 (b) If an authority ceases to exist, its assets shall be distributed to the
01 municipalities that were participating [PARTICIPATED] in the authority on the day 02 before the date of dissolution in proportion to the difference between their 03 contributions to the authority and any outstanding debt or obligation of that 04 municipality to the authority, provided that any obligation to bondholders then 05 outstanding shall first be satisfied in full. 06 * Sec. 3. AS 29.35.610 is amended by adding a new subsection to read: 07 (c) A municipality that is participating in an authority with one or more other 08 municipalities may withdraw from participation without dissolving the authority. The 09 contributions to the authority made by the withdrawing municipality remain the 10 property of the authority, and the municipality remains liable for obligations under any 11 agreement with the authority or other participating municipalities unless the agreement 12 is changed by the contractual parties. A municipality withdraws from participation in 13 an authority by repealing the ordinance adopted under AS 29.35.605(a)(2) or (b). 14 * Sec. 4. AS 29.35 is amended by adding new sections to read: 15 Article 10. Regional Solid Waste Management Authorities. 16 Sec. 29.35.800. Purpose of authorities. The purpose of a regional solid waste 17 management authority is to provide environmentally sound and cost-effective 18 management of solid waste, including storage, collection, transportation, separation, 19 processing, recycling, and disposal, to protect the public health, safety, and welfare; 20 improve the environment of the state; recover resources and energy; and prevent 21 pollution. 22 Sec. 29.35.805. Establishment of regional solid waste management 23 authorities. (a) A regional solid waste management authority may be created in one of 24 the following ways: 25 (1) the governing body of a municipality may, by ordinance, create a 26 regional solid waste management authority as a public corporation of the municipality; 27 (2) the governing bodies of two or more municipalities may, by 28 substantially identical ordinances adopted by each of the governing bodies, create a 29 regional solid waste management authority as a public corporation of the 30 municipalities. 31 (b) One or more municipalities may join an authority established under (a)(1)
01 or (2) of this section upon the adoption of substantially identical ordinances by the 02 governing bodies of each affected municipality. 03 (c) A regional solid waste management authority created under this section is 04 a body corporate and politic and an instrumentality of the municipality or 05 municipalities creating it but has a separate and independent legal existence. 06 (d) Creation of a regional solid waste management authority under 07 AS 29.35.800 - 29.35.925 is an exercise of a municipality's extraterritorial jurisdiction 08 under AS 29.35.020. 09 (e) The enabling ordinance by which a regional solid waste management 10 authority is established must specify the powers, boundaries, and limitations of the 11 regional solid waste management authority. 12 (f) An ordinance creating a regional solid waste management authority must 13 be approved by the voters of the municipality or municipalities participating in the 14 authority for the authority to be established. 15 (g) Nothing in AS 29.35.800 - 29.35.925 prevents a municipality or 16 municipalities from creating or participating in a public corporation, including a 17 regional solid waste management authority, in any form or manner not prohibited by 18 law. However, AS 29.35.800 - 29.35.925 only apply to and may only be used by a 19 regional solid waste management authority created under this section. 20 Sec. 29.35.810. Dissolution of a regional solid waste management 21 authority. (a) The enabling ordinance creating a regional solid waste management 22 authority must provide for the manner by which a regional solid waste management 23 authority may be dissolved. 24 (b) If an authority ceases to exist, its assets shall be distributed to each 25 municipality that was participating in the authority on the day before the date of 26 dissolution in proportion to the municipality's contribution to the authority less any 27 outstanding debt or obligation of that municipality to the authority. Any obligation to 28 bondholders then outstanding shall first be satisfied in full. 29 (c) A municipality that is participating in an authority with one or more other 30 municipalities may withdraw from participation without dissolving the authority. The 31 contributions to the authority made by the withdrawing municipality remain the
01 property of the authority, and the municipality remains liable for obligations under any 02 agreement with the authority or other participating municipalities unless the agreement 03 is changed by the contractual parties. A municipality withdraws from participation in 04 an authority by repealing the ordinance adopted under AS 29.35.805(a)(2) or (b). 05 Sec. 29.35.815. Municipal property. (a) A municipality may transfer and 06 otherwise convey or lease real property and improvements to real property to an 07 authority for use by the authority for the purposes set out in the ordinance adopted 08 under AS 29.35.805. 09 (b) A municipality may transfer and otherwise assign or lease personal 10 property to an authority for use by the authority for the purposes set out in the 11 ordinance adopted under AS 29.35.805. 12 Sec. 29.35.820. Powers and duties. (a) If provided in the enabling ordinance, 13 an authority may 14 (1) sue and be sued; 15 (2) have a seal and alter it; 16 (3) acquire an interest in a project as necessary or appropriate to 17 provide financing for the project, whether by purchase, gift, or lease; 18 (4) lease to others a project acquired by the authority on the terms and 19 conditions the authority may consider advisable, including, without limitation, 20 provisions for purchase or renewal; 21 (5) sell, by installment sale or otherwise, exchange, donate, convey, or 22 encumber in any manner by mortgage or by creation of another security interest, real 23 or personal property owned by it or in which it has an interest, including a project, 24 when, in the judgment of the authority, the action is in furtherance of the authority's 25 purposes; 26 (6) accept gifts, grants, or loans, under the terms and conditions 27 imposed under the gift, grant, or loan, and enter into contracts, conveyances, or other 28 transactions with a federal agency or an agency or instrumentality of the state, a 29 municipality, a private organization, or another person; 30 (7) deposit or invest its funds, subject to agreements with bondholders; 31 (8) purchase or insure loans to finance the costs of projects;
01 (9) provide for security within the boundaries of the authority; 02 (10) enter into loan agreements for one or more projects on the terms 03 and conditions the authority considers advisable; 04 (11) acquire, manage, and operate projects the authority considers 05 necessary or appropriate to serve the authority's purposes; 06 (12) assist private lenders to make loans to finance the costs of projects 07 through loan commitments, short-term financing, or otherwise; 08 (13) charge fees or other forms of remuneration for the use or 09 possession of projects under the agreements described in this subsection; other 10 agreements relating to the projects, covenants, or representations made in bond 11 documents relating to the projects; or regulations of the authority relating to the 12 projects; 13 (14) exercise the powers of eminent domain and declaration of taking 14 within its physical boundaries under AS 29.35.030 to acquire land or materials for 15 authority purposes; 16 (15) regulate land use within the boundaries of the authority; 17 (16) defend and indemnify a current or former member of the board, 18 employee, or agent of the authority against all costs, expenses, judgments, and 19 liabilities, including attorney fees, incurred by or imposed on that person in connection 20 with a civil or criminal action in which the person is involved because of the person's 21 affiliation with the authority if the person acted in good faith on behalf of the authority 22 and within the scope of the person's official duties and powers; 23 (17) purchase insurance to protect and hold harmless its employees, 24 agents, and board members from an action, claim, or proceeding arising out of the 25 performance of, purported performance of, or failure to perform in good faith, duties 26 for the authority or arising out of employment with the authority and to hold them 27 harmless from expenses connected with the defense, settlement, or monetary 28 judgments from that action, claim, or proceeding; the purchase of insurance is subject 29 to the discretion of the board; insurance purchased under this paragraph is not 30 compensation to the insured person; and 31 (18) protect its assets, services, and employees by purchasing
01 insurance or providing for certain self-insurance retentions. 02 (b) An authority shall maintain casualty, property, business interruption, 03 marine, boiler and machinery, pollution liability, and other insurance in amounts 04 reasonably calculated to cover potential claims against the authority or a municipality 05 for bodily injury, death or disability, and property damage that arises from or is related 06 to authority operations and activities. 07 Sec. 29.35.825. Bonds of a regional solid waste management authority; 08 superior court jurisdiction. (a) If authorized by the enabling ordinance, an authority 09 may borrow money and issue bonds on which the principal and interest are payable 10 (1) exclusively from the income and receipts of, or other money 11 derived from, the project financed with the proceeds of the bonds; 12 (2) exclusively from the income and receipts of, or other money 13 derived from, designated projects or other sources, whether they are financed, insured, 14 or guaranteed in whole or in part with the proceeds of the bonds; or 15 (3) from its income and receipts or a designated part or parts of them. 16 (b) All bonds shall be sold at public or private sale in the manner, for the price 17 or prices, and at the time or times the authority may determine. 18 (c) Before issuing bonds, an authority shall provide for consideration at least 19 sufficient, in the judgment of the authority, to 20 (1) pay the principal of and interest on the bonds as they become due; 21 (2) create and maintain the reserves for the payment that the authority 22 considers necessary or desirable; and 23 (3) meet all obligations in connection with the lease or agreement and 24 all costs necessary to service the bonds, unless the lease or agreement provides that the 25 obligations are to be met or costs are to be paid by a party other than the authority. 26 (d) Bonds shall be authorized by resolution of the authority and shall be dated 27 and mature as the resolution may provide, except that a bond may not mature more 28 than 40 years after the date of its issue. Bonds shall bear interest at the rate or rates, be 29 in the denominations, be in the form, either coupon or registered, carry the registration 30 privileges, be executed in the manner, be payable in the medium of payment, at the 31 place or places, and be subject to the terms of redemption that the resolution or a
01 subsequent resolution may provide. 02 (e) All bonds issued under this section, regardless of form or character, are 03 negotiable instruments for all the purposes of AS 45.01 - AS 45.08, AS 45.12, 04 AS 45.14, and AS 45.29 (Uniform Commercial Code). 05 (f) The superior court has jurisdiction to hear and determine suits, actions, or 06 proceedings relating to an authority, including suits, actions, or proceedings brought to 07 foreclose or otherwise enforce a mortgage, pledge, assignment, or security interest 08 brought by or for the benefit or security of a holder of the authority's bonds or by a 09 trustee for or other representative of the holders. 10 Sec. 29.35.830. Bonds eligible for investment. Bonds issued under 11 AS 29.35.825 are securities in which public officers and public bodies of the state and 12 its political subdivisions, insurance companies, trust companies, banks, investment 13 companies, executors, administrators, trustees, and other fiduciaries may properly and 14 legally invest funds, including capital in their control or belonging to them. The bonds 15 may be deposited with a state or municipal officer of an agency or political 16 subdivision of the state for any purpose for which the deposit of bonds of the state is 17 authorized by law. 18 Sec. 29.35.835. Validity of pledge. The pledge of revenue of an authority to 19 the payment of the principal or interest on bonds or notes of the authority is valid and 20 binding from the time the pledge is made, and the revenue is immediately subject to 21 the lien of the pledge without physical delivery or further act. The lien of a pledge is 22 valid and binding against all parties having claims of any kind against the authority 23 irrespective of whether those parties have notice of the lien of the pledge. 24 Sec. 29.35.840. Credit of state or a municipality not pledged. (a) The state 25 and municipalities participating in an authority are not liable for the debts of that 26 authority. Bonds issued under AS 29.35.825 are payable solely from the revenue of 27 the authority and do not constitute a 28 (1) debt, liability, or obligation of the state or a municipality; or 29 (2) pledge of the faith and credit of the state or a municipality. 30 (b) An authority may not pledge the credit or the taxing power of the state or 31 its municipalities. A bond issued under AS 29.35.825 must contain on its face a
01 statement that 02 (1) the authority is not obligated to pay it or the interest on it except 03 from the revenue pledged for it; and 04 (2) the faith and credit of the taxing power of the state or of a political 05 subdivision of the state is not pledged to the payment of it. 06 Sec. 29.35.845. Pledges of the state and municipalities. The state and 07 municipalities participating in an authority pledge to and agree with the holders of 08 bonds issued under AS 29.35.825 and with the federal agency, if any, that loans or 09 contributes funds for a project of the authority that the state and the municipalities 10 participating in the authority will not limit or alter the rights and powers vested in the 11 authority by its enabling ordinance or other law so that it is unable to fulfill the terms 12 of a contract made by it with those holders or that federal agency or in any way impair 13 the rights and remedies of those holders or that federal agency until the bonds, 14 together with the interest on them and interest on unpaid installments of interest, and 15 all costs and expenses in connection with an action or proceeding by or on behalf of 16 those holders or that federal agency, are fully met and discharged. An authority may 17 include this pledge and agreement of the state and the municipalities participating in 18 the authority, to the extent that it refers to holders of bonds of the authority, in a 19 contract with those holders, and to the extent that it relates to a federal agency, in a 20 contract with that federal agency. 21 Sec. 29.35.850. Limitation of liability. A liability incurred by an authority 22 shall be satisfied exclusively from the assets or revenue of the authority. A creditor or 23 other person does not have a right of action against the state or a municipality 24 participating in an authority because of a debt, obligation, or liability of an authority. 25 Sec. 29.35.855. Limitation on personal liability. A board member or 26 employee of an authority is not subject to personal liability or accountability because 27 of the execution or issuance of bonds. 28 Sec. 29.35.860. Fidelity bond. An authority shall obtain a fidelity bond in an 29 amount determined by the board for board members and each executive officer 30 responsible for accounts and finances of that authority. A fidelity bond must be in 31 effect during the entire tenure in office of the bonded person.
01 Sec. 29.35.865. No taxing authority. An authority may not levy an income or 02 other tax. 03 Sec. 29.35.870. Exemption from taxation. (a) An authority exercising the 04 powers granted by the enabling ordinance under AS 29.35.800 - 29.35.925 is in all 05 respects for the benefit of the people of the municipalities participating in the authority 06 and the people of the state in general, for their well-being and prosperity, and for the 07 improvement of their social and economic condition. The real and personal property of 08 an authority and its assets, income, and receipts are exempt from all taxes and special 09 assessments of the state or a political subdivision of the state. 10 (b) Bonds issued by the authority under AS 29.35.825 are issued for an 11 essential public and governmental purpose; therefore, the bonds, the interest and 12 income from them, and all fees, charges, funds, revenue, income, and other money 13 pledged or available to pay or secure the payment of the bonds or interest on them are 14 exempt from taxation except for inheritance, transfer, and estate taxes. 15 (c) Notwithstanding the provisions of (a) of this section, an authority and the 16 municipalities participating in the authority may enter into agreements under which 17 the authority agrees to pay the participating municipalities' payments in lieu of taxes 18 and special assessments on real and personal property of the authority that is within 19 the taxing jurisdiction of the municipality. 20 (d) Nothing in this section creates a tax exemption with respect to the interests 21 of a business enterprise or other person, other than the authority, in property, assets, 22 income, or receipts, whether or not financed under AS 29.35.800 - 29.35.925. 23 Sec. 29.35.875. Administration of regional solid waste management 24 authorities; board. (a) An authority shall be governed by a board of directors, which 25 shall exercise the powers of the authority. The enabling ordinance establishing the 26 authority under AS 29.35.805 must specify the number, qualifications, manner of 27 appointment or election, and terms of members of the board. 28 (b) The board shall appoint a chief executive officer of the authority, who 29 serves at the pleasure of the board. The board shall fix the compensation of the chief 30 executive officer. 31 Sec. 29.35.880. Continuation of collective bargaining agreements;
01 application of AS 23.40.070 - 23.40.260. (a) A collective bargaining agreement for 02 employees of the state or its political subdivisions who are transferred to an authority 03 under AS 29.35.800 - 29.35.925 remain in effect for the term of the agreement or one 04 year, whichever is longer, and are binding on the authority unless the parties agree to 05 the contrary before the agreement expires. A labor-management negotiation impasse 06 declared after a transfer of employees under this subsection but before the negotiation 07 of a new collective bargaining agreement shall be resolved as provided in the 08 collective bargaining agreement or, if the collective bargaining agreement does not 09 provide for a resolution, as provided in AS 23.40.070 - 23.40.260. 10 (b) Employees of the state or a political subdivision of the state transferred to 11 an authority shall retain, for one year following the date of transfer or for the duration 12 of a collective bargaining agreement transferred under (a) of this section, whichever is 13 greater, all rights of participation in fringe benefit programs available to the employees 14 on the day before the transfer, or in substantially equivalent programs. 15 (c) AS 23.40.070 - 23.40.260 apply to employees of an authority established 16 under AS 29.35.800 - 29.35.925 unless all municipalities participating in the authority 17 are exempt under sec. 4, ch. 113, SLA 1972. 18 Sec. 29.35.885. Bylaws and regulations. (a) A board shall adopt bylaws and 19 appropriate regulations consistent with the enabling ordinance to carry out its 20 functions and purposes. 21 (b) A board shall adopt bylaws as soon after the authority is established as 22 possible and may, from time to time, amend those bylaws. The bylaws may contain 23 any provision not in conflict with law for managing the business of the authority and 24 for conducting the affairs of the authority, including provisions relating to 25 (1) the time, place, and manner of calling, conducting, and giving 26 notice of meetings of the board and committees of the board, if any; 27 (2) the compensation of directors, if any; 28 (3) the appointment and authority of committees of the board, if any; 29 (4) the appointment, duties, compensation, and tenure of officers, 30 directors, the chief executive officer, and other employees, if any; 31 (5) procedures for adopting regulations;
01 (6) procedures for adopting bylaws; 02 (7) procedures for making annual reports and financial statements; and 03 (8) other matters for the conduct of business by the board. 04 Sec. 29.35.890. Authority subject to public records and open meetings 05 laws. An authority established under AS 29.35.805 is subject to AS 40.25.110 - 06 40.25.220 and to AS 44.62.310 and 44.62.312. 07 Sec. 29.35.895. Annual report. Within 90 days following the end of the fiscal 08 year of an authority, the board shall distribute to the mayor and governing body of 09 each municipality participating in the authority a report describing the operations and 10 financial condition of the authority during the preceding fiscal year. The report may 11 include suggestions for legislation relating to the structure, powers, or duties of the 12 authority or operation of facilities of the authority. The report must itemize the cost of 13 providing each category of service offered by the authority and the income generated 14 by each category. 15 Sec. 29.35.900. Audits. (a) The board shall have the financial records of an 16 authority audited annually by an independent certified public accountant. 17 (b) An authority shall make all of its financial records available to an auditor 18 appointed by a municipality participating in the authority for examination. 19 Sec. 29.35.905. Remedies. A holder of bonds or notes or coupons attached to 20 the bonds issued by an authority under AS 29.35.825, and a trustee under a trust 21 agreement or resolution authorizing the issuance of the bonds, except as restricted by a 22 trust agreement or resolution, either at law or in equity, may 23 (1) enforce all rights granted under AS 29.35.800 - 29.35.925, the trust 24 agreement or resolution, or another contract executed by the authority; and 25 (2) compel the performance of all duties of the authority required by 26 AS 29.35.800 - 29.35.925 or the trust agreement or resolution. 27 Sec. 29.35.910. Claims. In judicial and regulatory proceedings by and against 28 an authority, an authority and its board members and employees enjoy the same rights, 29 privileges, and immunities as a municipality and municipal officers. 30 Sec. 29.35.915. Conflicting laws inapplicable. If a provision of AS 29.35.800 31 - 29.35.925 conflicts with another provision of this title, the provision of AS 29.35.800
01 - 29.35.925 prevails. 02 Sec. 29.35.920. Definitions. In AS 29.35.800 - 29.35.925, unless the context 03 otherwise requires, 04 (1) "authority" means a regional solid waste management authority 05 established under AS 29.35.805; 06 (2) "board" means the board of directors of an authority; 07 (3) "bonds" includes bonds, bond anticipation notes, notes, refunding 08 bonds, or other forms of indebtedness of the authority; 09 (4) "bylaws" means the guidelines adopted by and amended by the 10 board from time to time under AS 29.35.800 - 29.35.925; 11 (5) "costs of projects" means all or any part of the aggregate costs 12 determined by an authority to be necessary to finance the construction or acquisition 13 of a project, including, without limitation, the cost of acquiring real property; the cost 14 of constructing buildings and improvements; the cost of financing the project, 15 including, without limitation, interest charges before, during, or after construction or 16 acquisition of the project; costs related to determining the feasibility of, planning, 17 design of, or engineering of the project and, to the extent determined necessary by the 18 authority, administrative expenses; the costs of machinery or equipment to be used in 19 the operation or rehabilitation of a solid waste management facility or operation; and 20 all other costs, charges, fees, and expenses that the authority determines necessary to 21 finance the construction or acquisition; 22 (6) "land" or "real property" means any interest in real property, 23 including tidal and submerged land, any right appurtenant to the interest, and, without 24 limitation, interests less than full title, such as easements, uses, leases, and licenses; 25 (7) "project" means a solid waste management facility, and 26 administrative facilities, including property necessary for solid waste management; 27 (8) "regulation" means a standard of general application or the 28 amendment, supplement, revision, or repeal of a standard adopted by an authority to 29 implement, interpret, or make specific the law enforced or administered by it or to 30 govern its procedure. 31 Sec. 29.35.925. Short title. AS 29.35.800 - 29.35.925 may be cited as the
01 Regional Solid Waste Management Authority Act. 02 * Sec. 5. AS 42.05.711 is amended by adding a new subsection to read: 03 (p) a regional solid waste management authority established under 04 AS 29.35.800 - 29.35.925 is exempt from regulation under this chapter, except that a 05 solid waste management authority is subject to this chapter if it directly competes with 06 a utility subject to this chapter. 07 * Sec. 6. AS 44.85.410(3) is amended to read: 08 (3) "municipal bond" means a bond or note or evidence of debt that 09 constitutes 10 (A) a general obligation bond that is a direct and general 11 obligation of a political subdivision of the state, all the taxable property within 12 which is subject to taxation to pay the bond, note, or evidence of debt, and the 13 interest without limitation, as to rate or amount generally to the extent 14 permitted by law or to avoid a default as provided for second class cities under 15 AS 29.45.590; 16 (B) a revenue bond, except a revenue bond for electrical 17 generation purposes other than diesel-powered generation, issued by a 18 municipality, a solid waste management authority, or a port authority that 19 pledges the revenue of a revenue-producing capital improvement and that is 20 payable solely from the revenue of the revenue-producing capital 21 improvement; 22 (C) a general obligation bond or revenue bond combined or 23 additionally secured; 24 (D) a bond of a borough issued as a general obligation of a 25 service area under AS 29.47.440 or former AS 29.58.340; or 26 (E) an obligation of a municipality secured only by 27 (i) special assessments on benefited property; 28 (ii) tax increments and a letter of credit or equal 29 security; or 30 (iii) a lease for equipment or building improvements if 31 the state is not a lessee;
01 * Sec. 7. Sections 2 and 3 of this Act take effect immediately under AS 01.10.070(c).