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