hb1145.html
08 LC 28 4166S

The House Committee on Governmental Affairs offers the following substitute
to HB 1145:

A BILL TO BE ENTITLED
AN ACT

To amend Title 36 of the Official Code of Georgia Annotated, relating to local government, so as to provide for the creation by two or more counties or any two or more municipalities or any county or municipality, or a combination of any county and any municipality, of a joint water authority; to provide for definitions; to provide for the purposes, powers, duties, and functions of the authority and authorize certain contracts and agreements; to provide for the membership and appointment of members of the authority and their terms of office, qualifications, duties, powers, methods of filling vacancies, and expenses; to provide for organization, meetings, and quorum of the authority; to provide for an attorney of the authority; to provide for an audit and budgets; to authorize the authority to contract with others regarding its functions, to contract with others pertaining to the use of the utilities and facilities of the authority, and to execute leases and do all things necessary or convenient for the operation of such undertakings or projects; to provide for revenue bonds and other obligations of the authority and to provide for their form, signatures thereon, negotiability, sale, and use of proceeds; to provide for interim and replacement documents; to provide for condition for issuance and authorize the collection and pledging of the revenues and earnings of the authority for the payment of such bonds; to authorize the execution of resolutions and trust indentures to secure the payment thereof and to define the rights of the holders of such obligations; to provide for sinking fund and trust funds; to provide for rates, charges, and revenues; to provide that no debt of any political subdivision that forms such an authority shall be incurred in the exercise of any of the powers granted; to provide for tax exemption; to authorize the authority to condemn property of every kind; to authorize the issuance of funding and refunding bonds; to provide for venue and jurisdiction; to provide for rules and regulations; to provide for immunity from liability; to provide for statutory construction and the effect on other governments and authorities; to provide for the validation of bonds; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.
Title 36 of the Official Code of Georgia Annotated, relating to local government, is amended by adding a new chapter to read as follows:

"Chapter 94

36-94-1.
(a) Any two or more contiguous counties or any two or more municipalities located in the same or in contiguous counties or any such county or municipality, or a combination of any such county and any such municipality located in such county or a contiguous county, by a like resolution or ordinance of their respective governing bodies, may authorize the exercise of the powers provided for in this chapter by a joint water authority, provided that all of the counties and municipalities forming such authority are located within the same water planning region created by or pursuant to Article 8 of Chapter 5 of Title 12. The membership of such joint water authority affected by like resolutions of the respective governing bodies of any two or more of the governing bodies of the participating units shall be not less than five nor more than 15 members, the terms and distribution of members between the participating units to be provided for by the resolutions adopted by the governing bodies of the participating units. The resolutions of the governing bodies of participating units acting together for the creation of an authority may be amended by the governing bodies of the participating units from time to time.
(b) A joint water authority shall be a body corporate and politic, which shall be deemed to be a political subdivision of the State of Georgia and a public corporation and may contract and be contracted with, sue and be sued, implead and be impleaded, and complain and defend in all courts of law and equity.
(c) A joint water authority may, by contract, provide services to other areas or jurisdictions in a manner which will best utilize available resources and efficiently and economically provide such services.
(d) A joint water authority created under this chapter shall be subject to the provisions of Article 4 of Chapter 18 of Title 50 concerning the inspection of public records.

36-94-2.
(a) To be eligible for appointment as a member of a joint water authority, a person shall be at least 21 years of age, shall have been a resident of one of the jurisdictions establishing such authority for at least three years prior to the date of appointment, and shall not have been convicted of a felony.
(b) The members of the authority shall elect one of their number as chairperson and one of their number as vice chairperson and shall also elect a secretary, who need not be a member of the authority, and may also elect a treasurer, who need not be a member of the authority. The secretary may also serve as treasurer. If the secretary, treasurer, or neither is a member of the authority, such officer shall have no voting rights. Each of such officers shall serve for a period of one year and until their successors are duly elected and qualified.
(c) A majority of the members of the authority shall constitute a quorum. No vacancy on the authority shall impair the right of the quorum to exercise all of the rights and perform all of the duties of the authority.
(d) Any vacancy in the office of a member of the authority shall be filled by the appointing authority; and such appointment shall be made within 15 days after the vacancy occurs. The person appointed shall serve out the unexpired term.
(e) There shall be an annual audit of the authority to be conducted by a certified public accountant selected by the authority.
(f) The fiscal affairs of the authority, including the raising of revenue and the adoption and approval of the annual budget, shall be under the control of the authority.
(g) The members of the authority shall serve without compensation but may be reimbursed for actual expenses incurred by virtue of their service on the authority.

36-94-3.
(a) As used in this chapter, the term:
(1) 'Authority' means a joint water authority created pursuant to Code Section 36-94-1.
(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 one year after completion of construction; the cost of engineering, architectural, fiscal agents, and legal expenses; the cost of plans and specifications and other expenses necessary or incident to determining the feasibility or practicality of the project, administrative expense, and such other expenses as may be necessary or incident to the financing authorized by this chapter; and the cost of the acquisition or construction of any project and the placing of any project in operation. Any obligation or expense incurred for any of the foregoing purposes shall be regarded as a 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 chapter for such project.
(3) 'Project' means the acquisition, construction, and equipping of water facilities for obtaining one or more sources of water supply, the treatment of the water, and the distribution and sale of water to users and consumers, including, but not limited to, the State of Georgia and counties and municipalities for the purpose of resale, inside and outside the territorial boundaries of the political subdivisions that created the authority, and the operation, maintenance, additions, improvements, and extension of such facilities so as to assure an adequate water utility system deemed by the authority necessary and convenient for the efficient operation of such type of undertaking. The term 'project' shall also mean and include the acquisition, construction, and equipping of all necessary and usual facilities useful and necessary for the gathering of waste water of every type, including both individual and industrial, and the treatment of sewage of any and every type, including, but not limited to, the acquisition and construction of treatment plants, ponds, and lagoons, inside and outside the territorial boundaries of the political subdivisions that created the authority, and the operation, maintenance, additions, improvements, and extensions of such facilities so as to assure an adequate sewerage system deemed by the authority necessary or convenient for the efficient operation of a sanitary and storm-water sewer system. Said water facilities and said sewerage facilities, at the discretion of the authority, may be combined at any time into a water and sewerage system as one revenue-producing undertaking and operated and maintained as such.
(4) 'Revenue bonds' and 'bonds' mean revenue bonds as defined and provided in Article 3 of Chapter 82 of this title and such type of obligations may be issued by the authority as authorized under Article 3 of Chapter 82 of this title. In addition, such terms shall also mean obligations of the authority, the issuance of which are specifically provided for in this chapter.
(b) Any project shall be deemed to be 'self-liquidating' if, in the judgment of the authority, the revenues and earnings to be derived by the authority therefrom and all facilities used in connection therewith will be sufficient to pay the cost of operating, maintaining and repairing, improving, extending, or improving and extending the project and to pay the principal and the interest on the revenue bonds which may be issued to finance, in whole or in part, the cost of such project or projects.

36-94-4.
The authority shall have the power:
(1) To have a seal and alter the same at its 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. All purchases of supplies, equipment, and other materials in an amount in excess of $25,000.00 shall be by competitive bid with advertisement of said purchases to be published in the official organ of each political subdivision that created the authority one time before the date of purchase. The authority shall attempt to obtain at least three competitive bids, and the authority shall accept the best bid in accordance with terms of the advertisement. The provisions of this paragraph shall not apply to emergency purchases or repairs. No purchase by the authority shall be made from a member or relative of a member of the authority within the first degree of kinship, except by sealed bid as provided in this paragraph;
(3) To acquire in its own name by purchase, on such terms and conditions and in such manner as it may deem proper, real property or 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 dispose of the same in any manner it deems to the best advantage of the authority, and no property shall be acquired under the provisions of this chapter 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 compensations;
(5) To make contracts and leases and to execute all instruments necessary or convenient, including contracts for construction of projects and leases of projects or contracts with respect to the use of projects which it causes to be constructed, erected, or acquired. Any and all persons, firms, and corporations and any and all political subdivisions, departments, institutions, or agencies of the state and public authorities 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 foregoing, authority is specifically granted to municipal corporations, counties, and other political subdivisions and to the authority to enter into contracts, lease agreements, or other undertakings relating to the furnishing of water and related services and facilities by the authority to such municipal corporations, counties, and political subdivisions or for the purchase of water by the authority therefrom for a term not exceeding 50 years, and also to enter into contracts, lease agreements, or other undertakings relative to the gathering of waste water and the treatment of waste water and sewage by the authority for such municipal corporations, counties, and political subdivisions or by such municipal corporations, counties, or political subdivisions for the authority. Likewise, without limiting the generality of the foregoing, the same authority granted to municipal corporations, counties, political subdivisions, and the authority relative to entering into contracts, lease agreements, or other undertakings is authorized between the authority and private corporations, both inside and outside the State of Georgia, and the authority and public bodies, including counties and cities outside the State of Georgia;
(6) To construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate, and manage projects as defined in this chapter, the cost of any such project to be paid in whole or in part from the proceeds of revenue bonds of the authority or in part from such proceeds and any grant or contribution from the United States of America or any agency or instrumentality thereof or from the State of Georgia or any agency or instrumentality thereof;
(7) To accept loans or grants, or both, of money or materials or property of any kind from the United States of America or any agency or instrumentality thereof, upon such terms and conditions as the United States of America or such agency or instrumentality may require;
(8) To accept loans or grants, or both, of money or materials or property of any kind from the State of Georgia or any agency or instrumentality or political subdivision thereof, upon such terms and conditions as the State of Georgia or such agency or instrumentality or political subdivision may require;
(9) To borrow money for any of its corporate purposes and 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;
(10) To exercise any power usually possessed by private corporations performing similar functions, including the power to make short-term loans and approve, execute, and deliver appropriate evidence of such indebtedness, provided that no such power is in conflict with the Constitution or general laws of this state; and
(11) To do all things necessary or convenient to carry out the powers expressly given in this chapter.

36-94-5.
The authority, or any authority or body which has or which may in the future succeed to the powers, duties, and liabilities vested in the authority created by this chapter, shall have power and is authorized 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, as defined in this chapter, of any one or more projects. The principal of and interest on such revenue bonds shall be payable solely from the special fund provided for such payment. The bonds of each issue shall be dated, shall bear interest at such rate or rates per annum payable at such time or times, shall mature at such time or times not exceeding 40 years from their date or dates, shall be payable in such medium of payment as to both principal and interest as may be determined by the authority, and may be redeemable before maturity, at the option of the authority, at such price or prices and under such terms and conditions as may be fixed by the authority in the resolution for the issuance of bonds.

36-94-6.
The authority shall determine the form of the bonds, including any interest coupons to be attached thereto, and shall fix the denomination or denominations of the bonds and the place or places of payment of principal and interest thereon, which may be at any bank or trust company inside or outside this state. The bonds may be issued in coupon or registered form, or both, as the authority may determine, and provision may be made for the registration of any coupon bond as to principal alone and also as to both principal and interest.

36-94-7.
In case any officer whose signature shall appear on any bonds or whose facsimile signature shall appear on any coupon shall cease to be such officer before the delivery of such bonds, such signature shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. All such bonds shall be signed by the chairperson of the authority and the official seal of the authority shall be affixed thereto and attested to by the secretary of the authority, and any coupons attached thereto shall bear the facsimile signatures of such persons, and any bond may be signed, sealed, and attested to on behalf of the authority by such persons as at the actual time of the execution of such bonds shall be duly authorized or hold the proper office, although at the date of such bonds such person may not have been so authorized or shall not have held such office.

36-94-8.
All revenue bonds issued under the provisions of this chapter shall be declared to have all the qualities and incidents of negotiable instruments under the laws of this state. Such bonds, their transfer, and the income therefrom shall be exempt from all taxation within the state.

36-94-9.
The authority may sell such bonds in such manner and for such price as it may determine to be for the best interest of the authority. The proceeds derived from the sale of such bonds shall be used solely for the purpose or purposes provided in the resolutions and proceedings authorizing the issuance of such bonds.

36-94-10.
The authority may, under like restrictions, issue interim receipts, interim certificates, or temporary bonds, with or without coupons, exchangeable for definitive bonds upon the issuance of the latter.

36-94-11.
The authority may provide for the replacement of any bonds or coupons which shall become mutilated or be destroyed or lost.

36-94-12.
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 chapter. In the discretion of the authority, revenue bonds of a single issue may be issued for the purpose of any particular project. Any resolution providing for the issuance of revenue bonds under the provisions of this chapter 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 or adjourned meeting of the authority by a majority of its members.

36-94-13.
Revenue bonds issued under the provisions of this chapter shall not be deemed to constitute a debt of any municipality or county that formed the authority nor a pledge of faith and credit of such political subdivisions, but such bonds shall be payable solely from the funds provided for by this chapter and the issuance of such revenue bonds shall not directly, indirectly, or contingently obligate a municipality or county to levy or pledge any form of taxation whatever therefor or to make any appropriation for their payment, and all such bonds shall contain recitals on their face covering substantially the provisions of this Code section.

36-94-14.
In the discretion of the authority, any issuance of such 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 inside or outside the state. Such trust indenture may pledge or assign fees, tolls, revenues, and earnings to be received by the authority. Either the resolution providing for the issuance of 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 of property, the construction of the project, the maintenance, operation, repair, and insuring of the project, and the custody, safeguarding, and application of all moneys, and may also provide that any project shall be constructed and paid for under the supervision and approval of consulting engineers or architects employed or designated by the authority and satisfactory to the original purchasers of the bonds issued therefor, and may also require that the security given by contractors and by any depository of the proceeds of the bonds or revenues or other moneys be satisfactory to such purchasers, and may also contain provisions concerning the conditions, if any, upon which additional revenue bonds may be issued. It shall be lawful for any bank or trust company incorporated under the laws of this state to act as such depository and to furnish such indemnifying bonds or pledge such securities as may be required by the authority. Such indenture may set forth the rights and remedies of the bondholders and of the trustee, and may restrict the individual right of action of bondholders as is customary in trust indentures securing bonds and debentures of corporations. In addition to the foregoing, such trust indenture may contain such other provisions as the authority may deem reasonable and proper for the security of the bondholders. All expenses incurred in carrying out such trust indenture may be treated as part of the cost, maintenance, operation, and repair of the project affected by such indenture.

36-94-15.
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 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 hereof, subject to such regulations this chapter and such resolution or trust indenture may provide.

36-94-16.
The revenues, fees, tolls, and earnings derived from any particular project or projects, regardless of whether or not such fees, earnings, and revenues were produced by a particular project for which 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 bonds or in the trust instrument may provide, and such funds so pledged from whatever source received, which said pledge may include funds received from one or more or all sources, shall be set aside at regular intervals, as may be provided in the 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 such interest shall fall due;
(2) The principal of the bonds as the same shall fall due;
(3) The necessary charges of paying an agent for paying principal and interest and other investment charges; and
(4) Any premium upon bonds retired by call or purchase as provided in this chapter.
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. Subject to the provisions of the resolution authorizing the issuance of the bonds or the trust indenture, any surplus moneys in the sinking fund may be applied to the purchase or redemption of bonds, and any such bonds so purchased or redeemed shall forthwith be cancelled and shall not again be issued.

36-94-17.
Any holder of revenue bonds issued under the provisions of this chapter or any of the coupons appertaining thereto and the trustee under the trust indenture, if any, except to the extent the rights given in this chapter may be restricted by the resolution passed before the issuance of the 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 under the laws of the State of Georgia or granted under this chapter or under such resolution or trust indenture and may enforce and compel performance of all duties required by this chapter 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, and other charges for the use of the facilities and services furnished.

36-94-18.
The authority is authorized to provide by resolution for the issuance of bonds of the authority for the purpose of funding or refunding any revenue bonds issued under the provisions of this chapter and then outstanding, together with accrued interest on the premium, if any. The issuance of such funding or refunding bonds, the maturities and all other details thereof, the rights of the holders thereof, and the duties of the authority in respect to the same shall be governed by the other provisions of this chapter insofar as the same may be applicable.

36-94-19.
Bonds of the authority shall be confirmed and validated in accordance with the procedure of Article 3 of Chapter 82 of this title. The petition for validation shall also make party defendant to such action the State of Georgia or any municipality, county, authority, political subdivision, or instrumentality of the State of Georgia which has contracted with the authority for the services and facilities of the project for which bonds are to be issued and sought to be validated and the state or such municipality, county, authority, political subdivision, or instrumentality shall be required to show cause, if any exists, why such contract or contracts and the terms and conditions thereof should not be inquired into by the court and the contract or contracts adjudicated as a part of the basis for the security for the payment of any such bonds of the authority. The bonds, when validated, and the judgment of validation shall be final and conclusive with respect to such bonds and the security for the payment thereof and interest thereon and against the authority issuing the same, and the state and any municipality, county, authority, political subdivision, or instrumentality, if a party to the validation proceedings, contracting with the authority.

36-94-20.
Any action to protect or enforce any rights under the provisions of this chapter or any suit or action against such authority shall be brought in the superior court of any county that formed the authority or in the superior court of the county in which any municipality that formed the authority is located and any action pertaining to validation of any bonds issued under the provisions of this chapter shall likewise be brought in said court which shall have exclusive, original jurisdiction of such actions.

36-94-21.
While any of the bonds issued by the authority remain outstanding, the powers, duties, or existence of said authority or its officers, employees, or agents shall not be diminished or impaired in any manner that will affect adversely the interest and rights of the holders of such bonds, and no other entity, department, agency, or authority will be created which will compete with the authority to such an extent as to affect adversely the interest and the rights of the holders of such bonds, nor will the state so itself compete with the authority. The provisions of this chapter shall be for the benefit of the authority and the holders of any such bonds and, upon the issuance of bonds under the provisions of this chapter, shall constitute a contract with the holders of such bonds.

36-94-22.
All moneys received pursuant to the provisions of this chapter, whether as proceeds from the sale of revenue bonds, as grants or other contributions, or as revenue, income, fees, and earnings, shall be deemed to be trust funds to be held and applied solely as provided in this chapter.

36-94-23.
(a) Without limiting the generality of any provision of this chapter, the general purpose of the authority is declared to be that of acquiring an adequate source of water supply, treatment of such water, and thereafter the distribution of same to the various municipalities and counties, including unincorporated areas and customers in the municipalities and counties that formed the authority, including adjoining counties and municipalities located therein; and, further, for the general purpose of collecting of waste water, both individual and industrial; but such general purpose shall not restrict the authority from selling and delivering water directly to customers in those areas where public water distribution systems do not now exist or furnishing sewer collection facilities to such customers and to areas where no county, municipality, or public authority deems it desirable or feasible to furnish water or sewerage services in such locality pursuant to an intergovernmental agreement with the municipality or county within which customers or areas are now located and with any municipality, county, or authority otherwise provided by law with the authority to serve such area.
(b) The authority shall not have the authority to construct water lines for the distribution of water directly to customers within any municipality or county without first obtaining the express written consent of the appropriate governing body of said municipality or county and any municipality, county, or authority otherwise provided by law with the authority to serve such area. Likewise, the authority shall not have the authority to construct sewer lines for the collection of waste and sewage directly from customers within any municipality or county without first obtaining the express written consent of the appropriate governing body of said municipality or county and any municipality, county, or authority otherwise provided by law with the authority to serve such area.

36-94-24.
The authority is authorized to prescribe and fix rates and to revise same from time to time and to collect fees, tolls, and charges for the services, facilities, and commodities furnished and, in anticipation of the collection of the revenues of such undertaking or project, to issue revenue bonds as provided by this chapter to finance, in whole or in part, the cost of the acquisition, construction, reconstruction, improvement, betterment, or extension of a water system, a sewerage system, or a combined water and sewerage system, and to pledge to the punctual payment of said bonds and interest thereon, all or any part of the revenues of improvements, betterments, or extensions thereto thereafter made. Before increasing water or sewer rates, the authority shall hold two public hearings with dates, times, and locations advertised once in the legal organ of the political subdivisions that formed the authority at least seven days before each public hearing. The authority shall notify the customers of the authority of the proposed increase in rates and the public hearing dates, times, and locations on the preceding month´s water or sewer bill before the date of the public hearings.

36-94-25.
It shall be the duty of the authority to prescribe rules and regulations for the operation of the project or projects constructed or acquired, or both, under the provisions of this chapter, including the basis upon which water service and facilities or sewerage service and facilities, or both, shall be furnished.

36-94-26.
The authority shall have the same immunity and exemption from liability for torts and negligence as a 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.

36-94-27.
The provisions of this chapter shall be deemed to provide an additional and alternative method for the doing of the things authorized, shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing. Nothing in this chapter shall restrict or impair the authority of any county, municipality, or other authority acting as otherwise provided by law.

36-94-28.
This chapter shall not and does not in any way take from any municipality located in any county that formed the authority or any adjoining county the authority to own, operate, and maintain a water system, a sewerage system, or a combined water and sewerage system or to issue revenue bonds.

36-94-29.
The exercise by an authority of powers authorized by this chapter shall be subject to the requirements of Chapter 70 of this title and shall not conflict with any service delivery agreements between any and all municipalities or counties.

36-94-30.
This chapter, being for the welfare of various counties and municipalities of the state and their inhabitants, shall be liberally construed to effect the purposes hereof."

SECTION 2.
All laws and parts of laws in conflict with this Act are repealed.