Chapter 480
2006 -- H 8020 SUBSTITUTE A
Enacted 07/06/06
A N A C T
IN
AMENDMENT OF CHAPTER 218 OF THE PUBLIC LAWS OF 1993 ENTITLED "AN ACT
RELATING TO THE TOWN OF NORTH SMITHFIELD TO CREATE THE NORTH SMITHFIELD WATER AUTHORITY
AND TO PROVIDE FOR ITS POWERS AND DUTIES"
Introduced
By: Representative Raymond C. Church
Date
Introduced: April 25, 2006
It is enacted by the General Assembly as
follows:
SECTION 1. Chapter
218 of the Public Laws of 1993 entitled "AN ACT RELATING TO
THE TOWN OF NORTH SMITHFIELD TO CREATE THE NORTH
SMITHFIELD WATER
AUTHORITY AND TO PROVIDE FOR ITS POWERS AND
DUTIES" is hereby repealed in its
entirety.
SECTION 1.
Chapter 218 of the Public Laws of 1993 entitled "AN ACT RELATING TO
THE TOWN OF NORTH SMITHFIELD TO CREATE THE NORTH
SMITHFIELD WATER
AUTHORITY AND TO PROVIDE FOR ITS POWERS AND
DUTIES" is hereby repealed in its
entirety.
"SECTION
1. There is hereby created the North Smithfield Water Authority with its
powers and duties as follows:
Sec. 1. SHORT
TITLE. This act shall be known as the "North Smithfield Water
Authority Act".
Sec. 2.
LEGISLATIVE FINDINGS.
(a) It is hereby
found and declared that there exists in the town of North Smithfield
conditions of substantial and persistent water
supply issues which causes hardship to many
individual's and families, impedes economic and
physical development of the town of North
Smithfield, and adversely affects the welfare
and prosperity of the people resident in said town;
that unless steps are taken to provide for
alternate management of the water supply system in said
town, these conditions shall continue; that if
these conditions are not alleviated there will be a
material adverse impact to the safety and
general welfare of the people of said town;
(b) It is
further found and declared that the efficient way of correcting these
conditions is
the creation of a public authority which shall
have as its purpose the acquisition, construction,
operation, maintenance, repair and replacement
of water supply systems for the purpose of
providing adequate water to residents of said
town.
(c) The
purpose of this act is to create a North Smithfield Water Authority having
existence separate and apart from the state and
town of North Smithfield, with the power and
authority to acquire, develop, construct,
operate and maintain all properties which shall be
necessary for the purpose set forth above, and
hereinafter set forth.
Sec. 3.
DEFINITIONS. As used in this act, the following words and terms shall have the
following meanings, unless the context shall
indicate another or different meaning or intent.
(a)
"Authority": The public corporation and instrumentality authorized,
created and
established pursuant to section 4 hereof and any
subsidiary public corporation as defined in
section 6.1 hereof.
(b)
"Bonds and notes": The bonds, notes, securities or other obligations
or evidences of
indebtedness issued by the authority pursuant to
this act, all of which shall be issued under the
name of and known as obligations of the North
Smithfield Water Authority.
(c)
"Local governing body": Any town or city council, commission or other
elective
governing body, now on hereafter vested by state
statute, charter or other law with jurisdiction to
initiate and adopt local ordinances, whether or
not such local ordinances require the approval of
the elected or appointed chief executive officer
or other official body to become effective.
(d)
"Municipality": Any city or town now existing or hereafter created,
or any state
agency.
(e)
"North Smithfield": The town of North Smithfield, Rhode Island.
(f)
"Personal property": All tangible and intangible personal property,
new or used,
including without limiting the generality of the
foregoing, all machinery, equipment,
transportation equipment, pipelines, pipes, and
all other personal property incidental to and
included or necessary for the operation of a
water supply and distribution system. Personal
property shall also mean and include any and all
interest, in such property which are less than full
title, such as leasehold interests, security
interest, and every other interest or right, legal or
equitable.
(g) "Real
property": Land, structures, new or used, franchises and interests in
land,
including lands under water, riparian rights, space
rights and air rights, and all other things and
rights included within said term. Real property
shall also mean and include and all interest in such
property less than fee simple, such as in
easements, incorporal hereditaments and every estate,
interest or right, legal or equitable, including
terms for years and liens thereon by way of
judgments, mortgages or otherwise, and also
claims for damages to such real property.
(h)
"State": The State of Rhode Island and Providence Plantations.
(i)
"Water supply facility": Any real or personal property, or any
combination thereof,
related to or incidental or intended or utilized
for the supply, transmission, distribution or
furnishing of water for fire protection,
domestic, manufacturing, commercial, industrial,
municipal or other purposes, and including
artesian and other wells, reservoirs, dams, related
equipment, pipelines, treatment plants and other
similar facilities.
Sec. 4.
CREATION. There is hereby authorized, created and established a public
corporation of the state, having a distinct
existence from the state or any municipality, and not
constituting a department of state government or
any municipality which is a public
instrumentality of the state to be known as the
"North Smithfield Water Authority" for such
purposes and with such powers as set forth in
this act.
Sec. 5.
PURPOSES. The authority is authorized, created and established for the
following
purposes: to acquire, construct, own, develop,
operate, manage, maintain, repair, replace,
improve, dispose of, enlarge, and extend water
supply facilities within and without North
Smithfield for the purpose of meeting the
present and future requirements and needs for fire
protection and potable water within in and all
areas of said town.
Sec. 6.
POWERS.
Except to the
extent inconsistent with any specific provision of this act, the authority
shall have the power:
(1) to sue and
be sued, complain and defend, in its corporate name;
(2) to have a
seal which may be altered at pleasure and to use the same by causing it, or a
facsimile thereof, to be impressed or affixed or
in any other manner reproduced;
(3) to
purchase, take, receive, lease or otherwise acquire, own, hold, develop,
improve,
operate, manage, construct, maintain, replace
and repair, use or otherwise deal in and with, real or
personal property, or any interest therein,
wherever situated;
(4) to sell, convey,
mortgage, pledge, lease, exchange, transfer, and otherwise dispose of,
all or any part of its property and assets for
such consideration and upon such terms and
conditions as the authority shall determine;
(5) to
produce, transmit, distribute and sell water within or without the territorial
limits of
North Smithfield;
(6) to fix
rates and collect charges for the use of the facilities of, or services
rendered by,
or any commodities furnished by, the authority
without obtaining the consent to or approval
thereof by any department, division, commission,
board, body or agency of the state, without any
other proceedings or the happening of any
conditions or things other than those proceedings,
conditions or things which are specifically
required by this act and by the provisions and
resolutions authorizing the fixing and
collection thereof provided, however, that the authority
shall be regarded as a public utility under
section 39-1-2 of the general laws if and only if and to
the extent it sells water, on a wholesale or
retail basis, outside the territorial limits of North
Smithfield.
(7) to make
such contracts and guarantees and to incur liabilities and borrow money at
such rates of interest and on such terms and
conditions as the authority may determine;
(8) to make
and execute agreements of lease, conditional sales contracts, installment sales
contracts, loan agreements, mortgages,
construction contracts, operation contracts and other
contracts and instruments necessary or
convenient in the exercise of the powers and functions of
the authority granted by this act;
(9) to lend
money for its purposes, invest and reinvest its funds and at its option to take
and hold real and personal property as security
for the funds so loaned or invested;
(10) to
acquire, contract or obtain options to acquire, from any person, firm,
corporation,
municipality, the federal government or the
state, or any agency of either the federal government
or state by grant, purchase, lease, gift,
condemnation or otherwise, any property, real or personal,
improved or unimproved; and to own, hold, clear,
develop, maintain, operate and rehabilitate,
sell, assign, exchange, transfer, convey, lease,
mortgage, or otherwise dispose or encumber the
same for the purposes of carrying out the
provisions and intent of this act for such consideration
and on such terms and conditions as the
authority shall determine;
(11) to
conduct its activities, carry on its operations and have offices and exercise
its
power granted by this act within or without
North Smithfield or the state;
(12) to elect
or appoint officers and agents of the authority and to define their duties and
fix their compensation, except as otherwise
expressly limited herein;
(13) to make
and alter bylaws not inconsistent with this act, for the administration and
regulation of the affairs of the authority and
such bylaws may contain provisions indemnifying
and advancing expenses to any person who is or
was a director, officer, employee or agent of the
authority; or is or was serving at the request
of the authority as a director, officer, employee or
agent of another corporation, partnership,
company, joint venture, trust or other enterprise in the
manner and to the extent provided in section
7-1.1-4.1 of the Rhode Island Business Corporation
Act, and to purchase and maintain insurance on
behalf of any director, officer, employee or agent
against any liability asserted against him and
incurred by such director, officer, employee or agent
in any such capacity or arising our of such
directors' officer's, employee's or agent's status,
whether or not the authority would have the
power to indemnify under the provisions of this Act;
(14) to be a
promoter, stockholder, partner, member, associate or manager of any
corporation, partnership, company, enterprise or
venture;
(15) to enter
into cooperative agreements with other cities, counties, town or water
companied within or without North Smithfield or
the state for the interconnection of water
facilities or for any other lawful corporate
purpose necessary or desirable to effect the purposes of
this act;
(16) to create
or acquire subsidiary public corporations pursuant to section 6.1 hereof;
(17) to have
and exercise all powers necessary or convenient to effect its purposes.
Sec. 6.1
SUBSIDIARIES.
(a) The
authority shall have the right to exercise and perform its powers and
functions, or
any of them, through one or more subsidiary
corporations. The authority by resolution of the
board of directors may direct any of its
directors, officers or employees to create or acquire
subsidiary corporations in the manner described
in subsection (b) hereof.
(b) As used
herein, "subsidiary public corporation" means a corporation created
pursuant
to the provisions hereof or any other
corporation which owns or operates a water supply facility
and one hundred percent (100%) of whose voting
stock is owned by the authority and any
municipality.
(c) The person
or persons directed by the resolution hereinbefore referred to in subsection
(a) shall prepare articles of incorporation
setting forth:
(i) the name
of the subsidiary public corporation;
(ii) the
period of duration, which may be perpetual;
(iii) the
purpose or purposes for which the subsidiary public corporation is organized
which shall not be more extensive than the
purposes of the authority set forth in section 5;
(iv) the
number of directors (which may, but need not be, more than one) constituting
the
initial board of directors and their names and
business or residence addresses;
(v) the name
and business or residence address of the persons preparing the articles of
incorporation;
(vi) the date
when corporate existence shall begin (which shall not be earlier than the
filing of the articles of incorporation with the
secretary of state as hereinafter provided);
(vii) any
provision, not inconsistent with law, which the board of directors elect to set
forth in the articles of incorporation for the
regulation of the internal affairs of the subsidiary
public corporation; and
(viii) a
reference to the resolution of the board of directors authorizing the
preparation of
the articles of incorporation.
Duplicate
originals of the articles of incorporation shall be delivered to the secretary
of state. If
the secretary of state finds that the articles
of incorporation conform to the provisions of this
subsection (b), he or she shall endorse on each
of such duplicate originals the word "Filed," and
the month, day and year of the filing thereof;
file one (1) of such duplicate originals in his or her
office; and a certificate of incorporation to
which he or she shall affix the other duplicate original.
No filing fees shall be payable upon the filing
of articles of incorporation. Upon the issuance of
the certificate of incorporation or upon such
later date specified in the articles of incorporation,
the corporate existence shall begin and such
certificate of incorporation shall be conclusive
evidence that all conditions precedent required
to be performed have been compiled with and that
the subsidiary public corporation has been duly
and validly incorporated under the provisions
hereof.
(d) The
authority may transfer to any subsidiary public corporation any moneys,
property,
real or personal or water supply facility in
order to carry out the purposes of this chapter. Each
such subsidiary public corporation shall have
all the powers, privileges, rights, immunities tax
exemptions and other exemptions of, and shall be
subject to the limitations imposed on its
operations to the same extent as, the authority
except to the extent that the articles of
incorporation of any such subsidiary public
corporation, as the same may be amended from time
to time, shall contain an express limitation
thereof and except that if any time any person, other
than the authority and any municipality, shall
own any voting stock of such subsidiary public
corporation, such subsidiary public corporation
shall not have the condemnation power contained
in section 8 hereof, and shall not be exempt
from taxation as provided in section 14 hereof.
Sec. 6.2.
AMENDMENT OF THE ARTICLES OF INCORPORATION OF A
SUBSIDIARY PUBLIC CORPORATION.
(a)
Notwithstanding the provisions of any legislative act incorporating and
subsidiary
public corporation, a subsidiary public
corporation may amend its articles of incorporation, from
time to time, in any and as many respects as may
be desired, so long as its articles of
incorporation as amended contain only such
provisions as might be lawfully contained as
provided in section 6.1 hereof in original
articles of incorporation at the time of making such
amendment. In particular, and without limitation
upon such general power of amendment,
subsidiary public corporation may amend its
articles of incorporation, from time to time as:
(i) to change
its corporate name:
(ii) to change
its period or duration; and
(iii) to
change, enlarge or diminish its corporate purposes.
(b) Amendments
to the articles of incorporation of a subsidiary public corporation shall
be made by the adoption of a resolution by the
board of directors of the authority setting forth the
amendment. The resolution may incorporate the
amendment in restated articles of incorporation
which contain a statement that except for the
designated amendment the restated articles of
incorporation correctly set forth without change
the corresponding provisions of the articles of
incorporation as therefore amended, and that the
restated articles of incorporation together with
the designated amendment supersede any
legislative act incorporating or amending the charter of,
such subsidiary public corporation inconsistent
therewith, the original articles of incorporation
and all amendments thereto.
(c) The
articles of amendment shall be executed in duplicate by the subsidiary public
corporation by its president or a vice president
and by its secretary or an assistant secretary, and
shall set forth;
(i) the name
of the corporation;
(ii) the
amendment so adopted;
(iii) the date
of the adoption of the amendment by the board of directors of the authority;
and
(iv) if,
pursuant to subsection (e) hereof, the amendment is to become effective at a
time
subsequent to the issuance of the certificate of
amendment by the secretary of state, the date when
the amendment is to become effective.
(v) Duplicate
originals of the articles of amendment shall be delivered to the secretary of
state. If the secretary of state finds that the
articles of amendment conform to law, he or she shall
endorse on each of such duplicate originals the
word "Filed," and the month, day and year of the
filing thereof; file one (1) of such duplicate
originals in his or her office; and issue a certificate of
amendment to which he or she shall affix the
other duplicate original. No filing fees shall be
payable upon the filing of articles of
amendment. The certificate of amendment, together with the
duplicate original of the articles of amendment
affixed thereto by the secretary of state shall be
returned to the subsidiary public corporation or
its representative.
(e)(i) Upon
the issuance of the certificate of amendment by the secretary of state or upon
such later date, not more than thirty (30) days
after the filing of the articles of amendment shall
become effective and the articles of
incorporation shall be deemed to be amended accordingly.
(ii) No
amendment shall affect any existing cause of action in favor of or against such
subsidiary public corporation, or any pending
suit to which such subsidiary public corporation
shall be a party, or the existing rights of any
persons and, in the event the corporate name shall be
changed by amendment, no suit brought by or
against such corporation under its former name
shall abate for that reason.
(f) (i) A
subsidiary public corporation may at any time restate its articles of
incorporation
as theretofore amended, by a resolution adopted
by the board of directors of the authority. Upon
the adoption of such resolution, restated
articles of incorporation shall be executed in duplicate by
the subsidiary public corporation by its
president or a vice president and by its secretary or
assistant secretary and shall set forth all of
the provisions of the articles of incorporation as
theretofore amended together with a statement
that the restated articles of incorporation correctly
set forth without change the corresponding
provisions of the articles of incorporation as
theretofore amended and that the restated
articles of incorporation supersede any legislative act
incorporating or amending the charter of , such
subsidiary public corporation, the original articles
of incorporation and all amendments thereto.
(ii) Duplicate
originals of the restated articles of incorporation shall be delivered to the
secretary of state. If the secretary of state
finds that such restated articles of incorporation
conform to law, he or she shall endorse on each
of such duplicate originals the word "Filed," and
the month, day and year of the filing thereof;
file one (1) of such duplicate originals in his or her
office; and issue a restated certificate of
incorporation, to which he or she shall affix the other
duplicate original. No filing fees shall be
payable upon the filing of articles of amendment. The
restated certificate of incorporation, together
with the duplicate original of the restated articles of
incorporation affixed thereto by the secretary
of state, shall be returned to the subsidiary public
corporation or its representative.
Sec. 6.3.
VOLUNTARY DISSOLUTION OF A SUBSIDIARY PUBLIC
CORPORATION.
(a) A subsidiary
public corporation may be dissolved by the adoption of a resolution to
dissolve the subsidiary public corporation by
the board of directors of the authority. Upon the
adoption of such resolution, a statement of
intent to dissolve shall be executed in duplicate by the
subsidiary public corporation by its president
or a vice president and by its secretary or an
assistant secretary, which statement shall set
forth:
(i) the name
of the subsidiary public corporation;
(ii) the names
and respective addresses of its officers;
(iii) the
names and respective addresses of its directors;
(iv) a copy of
the resolution adopted by the board of directors of the authority authorizing
the dissolution of the subsidiary public
corporation; and
(v) if,
pursuant to subsection (c) hereof, the date when the subsidiary public
corporation
is to cease to carry on its business is to be
subsequent to the date of such filing, the date when the
corporation is to cease to carry on its business.
(b) Duplicate
originals of the statement of intent to dissolve shall be delivered to the
secretary of state. If the secretary of state
finds that such statement conforms to law, he or she
shall endorse on each of such duplicate originals
the word "Filed," and the month, day and year of
the filing thereof; file one (1) of such
duplicate originals in his or her office; and return the other
duplicate original to the subsidiary public
corporation or its representative.
(c) Upon the
filing by the secretary of state of a statement of intent to dissolve, or upon
such later date, not more than thirty (30) days
after such filing, as may be set forth in the
statement, the subsidiary public corporation
shall cease to carry on its business, except insofar as
may be necessary for the winding up thereof, but
its corporate existence shall continue until a
certificate of dissolution has been issued by
the secretary of state.
After the
filing by the secretary of state of a statement of intent to dissolve;
(i) the
subsidiary public corporation shall immediately cause notice thereof to be
mailed
to each known creditor of the subsidiary public
corporation; and
(ii) the subsidiary
public corporation shall proceed to collect its assets, sell or otherwise
dispose of such of its properties as are not to
be distributed in kind to the authority, pay, satisfy
and discharge its liabilities and obligations
and do all other acts required to liquidate its business
and affairs, and, after paying or adequately
providing for the payment of all its obligations,
distribute the remainder of its assets, either
in cash or in kind, to the authority and any
municipality owning any of its voting commons
stock, in accordance with their respective
percentage interests.
(e) When all
debts, liabilities and obligations of the subsidiary public corporation have
been paid and discharged, or adequate provision
has been made therefore, and all of the
remaining property and assets of the subsidiary
public corporation have been distributed, articles
of dissolution shall be executed in duplicate by
the subsidiary public corporation by its president
or a vice president and by is secretary or an
assistant secretary, which statement shall set forth;
(i) the name
of the subsidiary public corporation;
(ii) that the
secretary of state has theretofore filed a statement of intent to dissolve the
subsidiary public corporation, and the date on
which such statement was filed;
(iii) that all
debts, obligations and liabilities of the subsidiary public corporation have
been paid and discharged or that adequate
provision ahs been made therefore;
(iv) that all
the remaining property and assets of the subsidiary public corporation have
been distributed to the authority and any
municipality owning any of its voting stock; and
(v) that there
are no suits pending against the subsidiary public corporation in any court,
or that adequate provision has been made for the
satisfaction of any judgment, order or decree
which may be entered against it in any pending
suit.
(f) Duplicate
originals of such articles of dissolution shall be delivered to the secretary
of
state. If the secretary of state finds that the
such articles of dissolution conform to law, he or she
shall endorse on each of such duplicate
originals the word "Filed," and the month, day and year of
the filing thereof; file one (1) of such
duplicate originals in his or her office; and issue a
certificate of dissolution to which he or she
shall affix the other supplicate original. No filing fees
shall be payable upon the filing of articles of
amendment. The certificate of dissolution, together
with the duplicate original of the articles of
dissolution affixed thereto by the secretary of state,
shall be returned to the representative of the
dissolved subsidiary public corporation. Upon the
issuance of such certificate of dissolution the existence
of the subsidiary public corporation shall
cease, except for the purpose of suits, other
proceedings and appropriate corporate action by
directors and officers as provided herein.
(g) The dissolution
of a subsidiary public corporation either;
(i) by the
issuance of a certificate of dissolution by the secretary of state, or
(ii) by
expiration of its period of duration, shall not take away or impair any remedy
available to or against such subsidiary public
corporation, its directors, or officers, for any right or
claim existing, or any liability incurred, prior
to such dissolution if action or other proceeding
thereon is commenced within two (2) years after
the date of such dissolution.
Any such action
or proceeding by or against the subsidiary public corporation may be prosecuted
or defended by, the subsidiary public
corporation in its corporate name. The directors and officers
shall have power to take such corporate or other
action as shall be appropriate to protect such
remedy, right or claim. If such subsidiary
public corporation was dissolved by the expiration of
its period of duration, such subsidiary public
corporation may amend its articles of incorporation
at any time during such period of two (2) years
so as to extend its period of duration.
Sec. 6. 4
MERGER OF OR INTO SUBSIDIARY CORPORATION.
The authority
may, at any time, or from time to time, merge any subsidiary public
corporation into itself or may merge with any
subsidiary corporation upon an approval of a plan
of merger by the directors of the authority.
Articles of merger shall be executed in duplicate by
the surviving corporation, by its president or a
vice president and its secretary or an assistant
secretary and by one of its officers signing
such articles and shall set forth:
(a) the plan
of merger; and
(b) if the
merger is to become effective at a time subsequent to the issuance of a
certificate of merger by the secretary of state,
as hereinafter provided, the date when the merger
or consolidation is to become effective.
Duplicate
originals of the articles of merger shall be delivered to the secretary of
state. If
the secretary of state finds that such articles
conform to law, he or she shall endorse on each of
such duplicate originals the words
"Filed," and the month and day and year of the filing thereof;
file one of such duplicate originals in his or
her office; and issue a certificate of merger to which
he or she shall affix the other duplicate
original. No filing fees shall be payable upon the filing of
articles of amendment. The certificate of
merger, together with the duplicate originals of the
articles of merger affixed thereto by the
secretary of state shall be returned to the surviving or
new corporation, as the case may be, or to its
representative. The merger shall become effective
upon the issuance of the certificate of merger
by the secretary of state or upon such later date, not
more than thirty (30) days of the filing of the
articles of merger, as may be set forth in the plan.
When a merger or consolidation becomes
effective:
(a) The
several corporations, including the authority, parties to the plan of merger,
shall
be a single corporation which shall be the
corporation designated in the plan of merger as the
surviving corporation.
(b) The
separate existence of all corporations party to the plan of merger, except the
surviving corporation, shall cease.
(c) Notwithstanding:
(i) any
provisions of the articles of incorporation of the surviving corporation,
(ii) the fact
that such surviving corporation may have been chartered legislatively, or
(iii) the fact
that the authority is not the surviving corporation, such surviving corporation
shall have all the rights, privileges, and
immunities and shall be subject to all the duties and
liabilities of the authority.
(d) Such
surviving corporation shall thereupon and thereafter possess all the rights,
privileges, and immunities and franchises of a
public or private nature of each of the merging
corporations, including the rights, privileges,
and immunities of the authority if the authority is
not the surviving corporation; and all property,
real, personal and mixed, and all debts due on
whatever account, and all of the choses in
action, and action, and all of the interest of or
belonging to or due to each of the corporations
so merged shall be taken and deemed to be
transferred to and vested in such single
corporation without act or deed; and the title to any real
estate or interest therein vested in any of such
corporations shall not revert or be in any way
impaired by reason of such merger or
consolidation.
Such surviving
corporation shall thenceforth be responsible and liable for all of the
liabilities and obligations of each of the
corporations so merged, including without limiting the
generality of the foregoing, the authority; and
any claim existing or action or proceeding pending
by or against any of such corporations may be
prosecuted as if such merger had not taken place or
such surviving corporation may be substituted in
its place. Neither the rights of creditors nor liens
upon the property of any such corporation shall
be impaired by such merger or consolidation.
The articles
of incorporation of the surviving corporation shall be deemed to be amended
to the extent, if any, that changes in its
articles of incorporation are stated in the plan of merger,
notwithstanding the provisions of any other
legislative act incorporating, or amending the charter
of, such corporation to the contrary.
Sec. 6.5.
GUARANTEES.
In addition
to, and not in limitation of, any of the powers such subsidiary public
corporation may have or exercise pursuant to the
provisions of this act, each such subsidiary
corporation shall have the power to guarantee
the obligations on debts of the authority, and to
mortgage, pledge, lease, transfer or exchange
all or any part of its property or assets to secure any
such guarantee.
Sec. 7.
DIRECTORS, OFFICERS AND EMPLOYEES.
(a) The powers
of the authority shall be vested in a board of directors which shall consist
of seven members, each to be appointed by the
North Smithfield town administrator with and
after the advice and consent of the local
governing body of North Smithfield. Without imposing
any legal obligation or restriction, the North
Smithfield town administrator shall endeavor to
appoint persons who are fairly representative of
the areas of North Smithfield which from time to
time will be impacted by the authority and who
have the knowledge and experience which
enables them to make a meaningful contribution
to the authority's activities and the management
of its affairs. Two members of the board of
directors first appointed for a term of one year, two
such members shall serve for a term of two
years, and three such members shall serve for a term
of three years, and in each case thereafter
until their successors are chosen and qualified. Not
earlier than sixty (60) days prior to the
expiration of any term of a member of the board of
directors, a successor shall be similarly
appointed to serve for a term of three years from the
expiration of the term, and thereafter until
such appointee's successor is chosen and shall have
qualified. In the event of a vacancy occurring
in the board of directors by reason of death,
resignation or removal of a member, a new member
shall be similarly appointed to serve for the
unexpired term, and thereafter until his
successor is chosen and shall have qualified.
(b) The
directors shall receive compensation and be reimbursed for his or her
reasonable
expenses incurred in carrying out his or her
duties as a director only as may be authorized at any
time and from time to time by the North
Smithfield town administrator with and after the advice
and consent of the local governing body of North
Smithfield. A director may engage in private
employment of a profession or business. The
corporation shall be a public body for purposes of
section 9-1-31.1 of the general laws.
(c) There shall
be a chairman of the board of directors who shall be selected to serve at
the pleasure of the board of directors by an
affirmative vote of not less than five members thereof.
The chairman shall designate a vice chairman who
shall serve at the pleasure of the chairman.
Except as otherwise provided, herein, four (4)
directors shall constitute a quorum and any action
to be taken by the authority under the
provisions of the Act may be authorized by a resolution
approved by not less than a majority of the
directors at any regular or special meeting at which a
quorum is present. A vacancy in the membership
of the board of directors shall not impair the
right of a quorum to exercise all rights and to
perform all duties of the authority.
(d)
Notwithstanding the provisions of the foregoing paragraph (c) the following
actions
may be authorized only by an affirmative vote of
not less than five (5) directors:
(1) selection,
appointment, setting the salary and determination, of the executive officer
of the authority, who shall have the title of
executive director;
(2) the sale of
all, or substantially all, of the real and personal property of the authority;
(3) the
exercise of the power of eminent domain inferred upon the authority;
(4)
applications for, or setting of, rates for the authority's products and
services;
(5) the
issuance of bonds, notes, or the borrowing of amounts in excess of, or the
entry
into, any one or more series of contracts for a
single purpose calling for the expenditure of five
hundred thousand dollars ($500,000) or more; and
(6) the
adoption of an annual budget.
(e) In addition
to an executive director, the board of directors shall appoint a secretary
and such additional officers, staff members and
employees as it shall deem appropriate, and shall
determine the amount of reasonable compensation,
if any, each shall receive. The board of
directors may vest in the executive director and
his subordinates the authority to appoint
additional staff members, and to determine the
amount of compensation such individuals shall
receive.
(f) No full-time
employee of the authority shall, during the period of his employment by
the authority, engage in any other private
employment, profession or business, except with the
approval of the board of directors. No person
shall be appointed executive director, if within one
year prior to the effective date of such
appointment such person shall have been a member of the
authority's board of directors, or of the local
governing body, or the North Smithfield town
administrator.
(g) If any
director, officer or employee of the authority shall be interested, directly or
indirectly, or shall be a director, officer or
employee of, or have ownership interest (other than as
the owner of less than one percent of the shares
of a publicly held corporation) in any firm,
person or corporation interested, directly or
indirectly, in any contract with the authority, such
interest shall be disclosed to the authority and
set forth in the minutes of the authority, and the
direct, officer or employee having such interest
shall not participate on behalf of the authority in
the authorization of any such contract.
Interested directors may be counted in determining the
presence of a quorum at the meeting of the board
of directors of the authority which authorizes
the contract or transaction.
(h) Any action
taken by the authority under the provisions of this act may be authorized
by a vote at any regular or special meeting, and
each such vote shall take effect immediately. The
board of directors may designate from among its
members an executive committee, and one (1) or
more other committees, each of which to the
extent authorized by the board of directors shall
have and exercise all authority of the board of
directors, except no such committee shall have the
authority of the board of directors in reference
to the matters set forth in subsection (d) of this
section, or amending the bylaws of the
authority.
(i) Any action
required by this act to be taken at a meeting of the board of directors, or a
committee thereof, may be taken without a
meeting if a consent in writing setting forth the action
to be taken shall be signed before or after such
action by all of the directors or all of the members
of the committee, as the case may be.
(j) Employees
of the authority shall not, by reason of such employment, be deemed to be
employees of the state nor any municipality for
any purpose, any provision of the general laws to
the contrary notwithstanding.
Sec. 8.
CONDEMNATION OF POWER
(a) if for any
of the purposes of this act, the authority shall find it necessary to acquire
any real property, whether for immediate or
future use, the authority may find and determine that
such property, whether a fee simple absolute or
a lesser interest, is required for the acquisition,
construction or operation of a water supply
facility, and upon such determination, the said
property shall be deemed to be required for such
public use until otherwise determined by the
authority; and with the exceptions hereinafter
specifically noted, the said determination shall not
be affected by the fact that such property has
theretofore been taken for, or is then devoted to, a
public use; but the public use in the hands or
under the control of the authority shall be deemed
superior to the public use in the hands of any
other person, association or corporation; provided
further, however, that no real property or
interest, estate or right therein belonging to the state
shall be acquired without consent of the state;
and no real property or interest, estate or right
therein belonging to any municipality shall be
acquired without the consent of such municipality;
(b) The
authority may proceed to acquire and is hereby authorized to any proceed to
acquire such property, whether a fee simple
absolute or a lesser interest, by the exercise of the
right of eminent domain in the manner prescribed
in this act.
(c) Nothing
herein contained shall be construed to prohibit the authority from bringing
any proceedings to remove a cloud on title or
such other proceedings as it may, in its discretion,
deem proper and necessary, or from acquiring any
such property by negotiation or purchase.
(d) The
necessity for the acquisition of property under this act shall be conclusively
presumed upon the adoption by the authority of a
vote determining that the acquisition of such
property or any interest therein described in
such vote is necessary for the acquisition,
construction or operation of a water supply
facility. Within six (6) months after its passage, the
authority shall cause to be filed in the
appropriate land evidence records a copy of its vote
together with a statement signed by the chairman
or vice-chairman of the authority that such
property indicating the nature and extent of the
state or interest therein taken as aforesaid and a
plat thereof, which copy of the vote and
statement of the chairman or vice-chairman shall be
certified by the secretary or an assistant
secretary of the authority and the description and plat
shall be certified by the city or town clerk for
the city or town within which the real property lies.
(e) Forthwith
thereafter the authority shall cause to be filed in the superior court in and
for the county within which the real property
lies a statement of the sum of money estimated to be
just compensation for the property taken, and
shall deposit in said superior court to the use of the
persons entitled thereto the sum set forth in
such statement. The authority shall satisfy the court
that the amount so deposited with the court is
sufficient to satisfy the just claims of all persons
having an estate or interest in such real property.
Whenever the authority satisfies the court that
the claims of all persons interested in the real
property taken have been satisfied, the unexpended
balance shall be ordered repaid forthwith to the
authority.
(f) Upon the
filing of the copy of the vote, statement, description and plat in the land
evidence records and upon the making of the
deposit in accordance with the order of the superior
court, title to said real property in fee simple
absolute or such lesser estate or interest therein
specified in said resolution shall vest in the
authority, and said real property shall be deemed to be
condemned and taken for the use of the authority
and the tight to just compensation for the same
shall vest in the persons entitled thereto, and
the authority thereupon may taken possession of said
real property. No sum so paid into the court
shall be charged with clerks' fees of any nature.
(g) After the
filing of the copy of the vote, statement, description and plat, notice of the
taking of such land or other real property shall
be served upon the owners or persons having any
estate or interest in such real property by the
sheriff or his deputies of the county in which the real
estate is situated by leaving a true and
attested copy of the vote, statement, description and plat
with each of such persons personally, or at the
last and usual place of abode in this state with
some person living there, and in case any of
such persons are absent, from this state and have no
last and usual place of abode therein occupied
by any person, such copy shall be left with the
person or persons, if any, in charge of, or
having possession of such real property taken of such
absent persons, and another copy thereof shall
be mailed to the address of such person, if the
same is known to the officer serving such
notice.
(h) After the
filing of such vote, description and plat, the authority shall cause a copy of
the vote and description to be published in some
newspaper having general circulation in the city
or town in which the real property lies at least
once a week for three (3) successive weeks.
(i) If any
party agree with the authority upon the price to be paid for the value of the
real
property so taken and of appurtenant damage to
any remainder or for the value of his or her
estate, right or interest therein, the court,
upon application of the parties in interest, may order that
the sum agreed upon be paid forthwith from the
money deposited, as the just compensation to be
awarded in said proceedings; provided, however,
that no payment shall be made to any official or
employee of the authority for any property or
interest therein acquired from such official or
employee unless the amount of such payment is
determined by the court to constitute just
compensation to be awarded in said proceedings.
(j) Any owner
of, or person entitled to any estate or right in, or interested in any part of
the real property so taken, who cannot agree
with the authority upon the price to be paid for his or
her estate, right or interest in such real
property so taken and the appurtenant damage to the
remainder, may, within three (3) months after
personal notice of said taking, or if he or she has no
personal notice, may within one (1) year from
the time the sum of money estimated to be just
compensation is deposited in the superior court
to the use of the persons entitled thereto, apply by
petition to the superior court for the county in
which said real property is situated, setting forth
the taking of his or her land or his or her
estate or interest therein and paying for an assessment or
damages by the court or by a jury. Upon the
filing of such petition the court shall cause twenty
(20) days' notice of the pendency thereof to be
given to the authority by serving the chairman or
vice chairman of the authority with a certified
copy thereof.
(k) After the
service of such notice the court may proceed to the trial thereof. Such trial
shall be conducted as other civil actions at law
are tried. Such trial shall determine all questions of
fact relating to the value of such real
property, and any estate or interest therein, and the amount
thereof and the appurtenant damage to any remainder
and the amount thereof, and such trial and
decision or verdict of the court or jury shall
be subject to all rights to except to rulings, to move
for new trial, and to appeal, as are provided by
law. Upon the entry of judgment in such
proceedings execution shall be issued against
the money so deposited in court and in default
thereof against any other property of the
authority.
(l) In case two
(2) or more petitioners make claim to the same real property, or to any
estate or interest therein, or to different
estate or interests in the same real property, said court
shall, upon motion, consolidate their several
petitions for trial at the same time, and may frame all
necessary issued for the trial thereof.
(m) If any real
property or any estate or interest therein, in which any infant or other
person not capable in law to act in his or her
own behalf is interested, is taken under the
provisions of this act, said superior court,
upon the filing therein of a petition by or in behalf of
such infant or person or by the authority may
appoint a guardian ad litem for such infant or other
person. Guardians may, with the advice and
consent of said superior court, and upon such terms
as said superior land of such infant or other person
or for any such estate or interest therein. Any
lawfully appointed, qualified and acting
guardian or other fiduciary of the estate of any such
infant or other person, with the approval of the
court of probate within this state having
jurisdiction to authorize the sale of lands and
properties within this state of such infant or other
person, may before the filing of any such
petition, agree with such infant or other person for any
taking of his or her real property or of his or
her interest or estate therein, and may upon receiving
such amount, release to the authority all claims
for damages for such infant or other person for
such taking.
(n) In case any
owner of or any person having any estate or interest in such real property
shall fail to file his petition as above
provided, the superior court for the county in which the real
property is situated in its discretion, any
permit the filing of such petition within one (1) year
subsequent to the year following the time of the
deposit in the superior court of the sum of money
estimated to be just compensation for the
property taken; provided, such person shall have had no
actual knowledge of the taking of such land in
season to file such petition; and provided, no other
person or persons claiming to won such real
property or estate or interest therein shall have been
paid the value thereof; and provided, no
judgment has been rendered against the authority for the
payment of such value to any other person or
persons claiming to own such real estate.
(o) If any real
property or any estate or interest therein is unclaimed or held by a person
or persons whose whereabouts are unknown, after
making inquiry satisfactory to the superior
court for the county in which the real property lies,
the authority, after the expiration of two (2)
years fro the first publication of the copy of
the vote, statement and description, may petition such
court that the value of the estate or interest
or such unknown person or persons be determined.
After such notice by publication to such person
or persons as the court in its discretion may order,
and after hearing on said petition, the court
shall fix the value of said estate or interest and shall
order said sum to be deposited in the registry
of such court in a special account to accommodate
for the benefit of the person or persons, if
any, entitled thereto. The receipt of the clerk of the
superior court therefor shall constitute a
discharge of the authority from all liability in connection
with such taking. When the person entitled to
the money deposited shall have satisfied the
superior court of his or her right to receive
the same, the court shall cause it to be paid over to him
or her, with all accumulations thereon.
(p) The superior
court shall have power to make such orders with respect to
encumbrances, liens, taxes and other charges on
the land, if any, as shall be just and equitable.
(q) Whenever in
the opinion of the authority a substantial saving in the cost of acquiring
title can be affected by conveying other real
property, title to which is in the authority, to the
person or persons from whom the estate or
interest in real property is being purchased or taken or
by the construction or improvement by the authority
of any work or facility upon the remaining
real property of the person or persons from whom
the estate or interest in real property is being
purchased or taken, the authority shall be and
hereby is authorized to convey such other real
property to the person or persons from whom the
estate or interest in real property is being
purchased or taken and to construct or improve
any work or facility upon the remaining land of
such person or persons.
(r) At any time
during the pendency of any proceedings for the assessment of damages
for property or interest therein taken or to be
taken by eminent domain by the authority, the
authority or any owner may apply to the court
for an order directing an owner or the authority, as
the case may be, to show cause why further
proceedings should not be expedited, and the court
may upon such application make an order
requiring that the hearing proceed and that any other
steps be taken with all possible expedition.
Sec. 9. BONDS AND
NOTES OF THE AUTHORITY.
(a) The
authority shall have the power and is hereby authorized to issue from time to
time
its negotiable bonds and notes in one or more
series in such principal amounts as in the opinion of
the authority shall be necessary to provide
sufficient funds for achieving its purposes, including
the payment of interest on bonds and notes of
the authority, the establishment of reserves to
secure such bonds and notes (including the
reserve funds created pursuant to section 12 hereof),
and the making of all other expenditures of the
authority incident to and necessary or convenient
to carrying out its corporate purposes and
powers.
(b) All bonds
and notes issued by the authority may be secured by the full faith and credit
of the authority and may be payable solely out
of the revenues, earnings and receipts of the
authority. Such bonds and notes may be executed
and delivered by the authority at any time, from
time to time, may be in such form and
denominations and of such tenor and maturities, and may
be in bearer form or in registered form, as to
principal and interest or as to principal alone, all as
the authority may determine.
(c) Bonds may
be payable in such installments, and at such times not exceeding fifty (50)
years from the date thereof, as shall be
determined by the authority.
(d) Except for
notes issued pursuant to section 10, notes, and any renewals thereof, may
be payable in such installments and at such
times not exceeding ten (10) years from the date of
the original issue of such notes, as shall be
determined by the authority.
(e) Bonds and
notes may be payable at such places, whether within or without the state,
may bear interest at such rate or rates payable
at such time or times and at such place or places
and evidenced in such manner, and may contain
such provisions not inconsistent herewith, all as
shall be provided in the proceedings of the
authority under which they shall be authorized to be
issued.
(f) There may
be retained by provision made in the proceedings under which any bonds
or notes of the authority are authorized to be
issued an option to redeem all or any part thereof at
such prices and upon such notice, and on such
further terms and conditions as shall be set forth on
the record of such proceedings and on the face
of the bonds and notes.
(g) Any bonds
or notes of the authority may be sold from time to time at such prices, at
public or private sale, and in such manner as shall
be determined by the authority, and the
authority shall pay all expenses, premiums and
commissions that it shall deem necessary or
advantageous in connection with the issuance and
sale thereof.
(h) Moneys of
the authority, including proceeds from the sale of bonds or notes, and
revenues, receipts and income from any of its
water supply facilities, may be invested and
reinvested in such obligations securities and
other investments consistent herewith as shall be
specified in the resolutions under which such
bonds or notes are authorized.
(i) Issuance by
the authority of one or more series of bonds or notes for one or more
purposes shall not preclude it from issuing
other bonds or notes, but the proceedings whereunder
any subsequent bonds or notes may be issued
shall recognize and protect a prior pledge or
mortgage made for a prior issue of bonds or
notes unless, in the proceedings authorizing such
prior issue, the right is reserved to issue
subsequent bonds or notes on a parity with such prior
issue.
(j) The
authority is authorized to issue bonds or notes for the purpose of refunding
its
bonds or notes then outstanding, including the
payment of any redemption premium thereon and
any interest accrued or to accrue to the earliest
or subsequent date of redemption, purchase or
maturity, of such bonds, or notes, and, if
deemed advisable by the authority, for the additional
purpose of pay all or part of the cost of
acquiring, constructing, reconstructing, rehabilitating, or
improving any water supply facility. The
proceeds of bonds or notes issued for the purpose of
refunding outstanding bonds or notes may be
applied, in the discretion of the authority, to the
purchase, retirement at maturity, or redemption
of such outstanding bonds or notes either on their
earliest or a subsequent redemption date, and
may, pending such application, be placed in escrow.
Any such escrowed proceeds may be invested and
reinvested in obligations of or guaranteed by
the United States of America, or in certificates
of deposit or time deposits secured or guaranteed
by the state or the United States, or an
instrumentality of either, maturing at such time or times as
shall be appropriate to assure the prompt
payment, as to principal, interest and redemption
premium, if any, of the outstanding bonds or
notes to be so refunded. The interest, income and
profits, if any, earned or realized on any such
investment may also be applied to the payment of
the outstanding bonds or notes to be so
refunded. After the terms of the escrow have been fully
satisfied and carried out, any balance of such
proceeds and interest, income and profits, if any,
earned or realized on the statements thereof may
be returned to the authority for use by it in
furtherance of its purposes. The portion of the
proceeds of bonds or notes issued for the additional
purpose of paying all or part of the cost of
acquiring, constructing, reconstructing, rehabilitating,
developing or improving any water supply
facility, may be invested and reinvested in such
obligations, securities and other statements
consistent herewith as shall be specified in the
resolutions which such bonds or notes are
authorized and which shall mature not later than the
times when such proceeds will be needed for such
purposes. The interest income and profits, if
any, earned or realized on such investments may
be applied to the payment of all parts of such
costs, or to the making of such loans, or may be
used by the authority otherwise in furtherance of
its purposes. All such bonds or notes shall
issued and secured and shall be subject to the
provisions of this act in the same manner and to
the same extent as any other bonds or notes
issued pursuant to this act.
(k) The
directors, the executive director of the authority, and other persons executing
such bonds or notes shall not be subject to
personal liability or accountability by reason of the
issuance thereof.
(l) Bonds or notes
may be issued under the provisions of this act without obtaining the
consent of any department, division, commission,
board, body, bureau, or agency of the state, and
without any other proceedings or the happening
of any conditions or things other than those
proceedings, conditions or things which are
specifically required by this act and by the provisions
of the resolution authorizing the issuance of
such bonds or notes or the trust agreement securing
the same.
(m) The
authority, subject to such agreements with noteholders or bondholders as may
then be in force, shall have power out of any
funds available therefor to the purchase bonds or
notes of the authority, which shall thereupon be
cancelled, at a price not exceeding:
(1) if the
bonds or notes are then redeemable, the redemption price then applicable plus
accrued interest to the next interest payment
date, or
(2) if the
bonds or notes are not then redeemable, the redemption price applicable on the
earliest date that the bonds or notes become
subject to redemption, plus the interest that would
have accrued to such date.
(n) Whether or
not the bonds and notes are of such form and character as to be negotiable
instruments under the terms of the state uniform
commercial code, the bonds and notes are hereby
made negotiable instruments within the meaning
of an for all the purposes of the state uniform
commercial code, subject only to the provisions
of the bonds and notes for registration.
(o) If a
director or officer of the authority whose signature appears on bonds, notes or
coupons shall cease to be a director or officer
before the delivery of such bonds or notes, such
signature shall, nevertheless, be valid and
sufficient for all purposes, the same as if such director
or officer had remained in office until such
delivery.
Sec, 10. SHORT
TERM NOTES. Money borrowed by the authority for the purpose of
providing temporary financing of the authority
operations pending the issuance of bonds or other
notes shall be evidenced by notes or other
obligations. The principal and interest of all notes or
other obligations of the authority so issued
under the provisions of this section 10 shall be payable
no later than the fifth anniversary of the date
of issue thereof, and shall be payable from the
following: (i) from the proceeds of bonds
subsequently issued, or (ii) from the proceeds of
subsequent borrowings which comply with the
provisions hereof, or (iii) from general revenues of
the authority which may be equal and
proportionate with but not superior to that securing bonds
then outstanding or subsequently issued.
Notwithstanding any other provisions of this Act, all
such notes shall be deemed to be negotiable
instruments under the laws of the state subject only
to the provisions for registration contained
therein. Such notes or other obligations or any issue
thereof shall be in a form and contain such
other provisions as the authority may determine and
such notes or resolutions or proceedings authorizing
such notes or other obligations or any issue
thereof may contain, in addition to any
provisions, conditions, covenants or limitations authorized
by this Act, any provisions, conditions,
covenants or limitations which the authority is authorized
to include in any resolution or resolutions
authorizing bonds or notes or in any trust indenture
relating thereto. The authority may issue such
notes or other obligations in such manner either
publicly or privately on such terms as it may
determine to be in its best interests. Such notes or
other obligations may e issued under the
provisions of this Act without obtaining the consent of
any department, division, commission, board,
body or agency of the state, without any other
proceedings or the happening of any conditions
or things other than those proceedings, conditions
or things which are specifically required by
this Act and by the provisions and resolutions
authorizing the issuance of such notes or
obligations.
Sec. 11.
SECURITY FOR BONDS OR NOTES.
(a) The
principal of and interest on any bonds or notes issued by the authority may be
secured by a pledge of any revenues and receipts
of the authority and may be secured by a
mortgage or other instrument covering all or any
part of one or more water supply facilities,
including all or part of any additions,
improvements, extensions to or enlargements of such
facilities thereafter made.
(b) The
resolution under which the bonds or notes are authorized to e issued and any
such
mortgage, lease, sales agreement or loan
agreement, or other instrument may contain agreements
and provisions respecting the maintenance of the
facilities covered thereby, the fixing and
collection of rents, payments or repayments or
other revenues therefrom, including moneys
received in repayment of loans, and interest
thereon, the creation and maintenance of special
funds from such rents or other revenues and the
rights and remedies available in the event of
default, all as the authority shall deem
advisable.
(c) Each
pledge, agreement, mortgage or other instrument made for the benefit or
security
of any of the bonds or notes of the authority
shall continue in effect until the principal of and
interest on the bonds or notes for the benefit
of which the same was made shall have been fully
paid, or until provision shall have been made
for such payment in the manner provided in the
resolutions under which such bonds or notes were
authorized.
(d) The
authority may provide in any proceedings under which bonds or notes may be
authorized that any water supply facility or
part thereof may be constructed, reconstructed,
rehabilitated or improved by the authority, or
any lessee, vendee, obligor or any designee of the
authority and may also provide in such
proceedings for the time and manner of and requisitions
for disbursements to be made for the cost of
such construction, and for all such certificates and
approvals of construction and disbursements as
the authority shall deem necessary and provide
for in such proceedings.
(e) Any
resolution under which bonds or notes of the authority are authorized to be
issued
(and any trust indenture established thereby)
may contain provisions for vesting in a trustee or
trustees such properties, rights, powers and
duties in trust as the authority may determine
including any or all of the rights, powers and
duties of the trustee appointed by the holders of any
issue of bonds or notes pursuant to section 18,
in which event the provisions of section 18
authorizing the appointment of a trustee by such
holders of bonds or notes shall not apply.
Sec. 12.
RESERVE AND APPROPRIATIONS.
To assure the
continued operations and solvency of the authority for the carrying out of
its corporate purposes:
(a) The
authority may create and establish one or more special funds (herein referred
to
as "capital reserve fund"), and may
pay into each such capital reserve fund (i) any moneys
appropriated and made available by the state, or
any municipality for the purpose of such fund,
(ii) proceeds from the sale of notes or bonds to
the extent provided in the resolution or resolutions
of the authority authorizing the issuance
thereof, and (iii) any other moneys that may be made
available to the authority for the purpose of
such fund from any other source. All moneys held in
a capital reserve fund, except as hereinafter
provided, shall e used solely for the payment of the
principal of bonds secured in whole or in part
by such fund or of the sinking fund payments
hereinafter mentioned with respect to such
bonds, the purchase or redemption of such bonds, the
payment of interest on such bonds or the payment
of any redemption premium required to be paid
when such bonds are redeemed prior to maturity,
provided that moneys in such fund shall not be
withdrawn therefrom [except for the purpose of
making (with respect to bonds secured in whole
or in part by such fund) payment when due of
principal, interest, redemption premiums and the
sinking fund payments hereinafter mentioned, for
the payment of which other moneys of the
authority are not available] if such withdrawal
would reduce the amount of such fund to less than
the minimum capital reserve requirement
established for such fund as hereinafter provided. Any
income or interest earned by, or incremental to,
any capital reserve fund due to the investment of
the funds thereof may be transferred by the
authority to other funds or accounts of the authority if
such transfer would not reduce the amount of the
capital reserve fund below the minimum capital
reserve fund requirement for such fund.
(b) The
authority shall not at any time issue bonds secured in whole or in part by a
capital
reserve fund if, upon the issuance of such
bonds, the amount of such capital reserve fund would e
les than the minimum capital reserved required
for such fund, unless the authority, at the time of
issuance of such bonds, shall deposit in such
fund from the proceeds of the bonds so to e issued,
or from other sources, an amount that, together
with the amount then in such fund, is not less than
the minimum capital reserve fund requirement for
such fund. For the purpose of this section, the
term "minimum capital reserve fund
requirement" shall mean, as of any particular date of
computation, an amount of money, as provided in
the resolution or resolutions of the authority
authorizing the bonds or notes with respect to
which such fund is established, equal to not more
than the greatest of the respective amounts, for
the current or any future fiscal year of the
authority, of annual debt service on the bonds
of the authority secured in whole or in part by such
fund, such annual debt service for any fiscal year
being the amount of money equal to the sum of
(i) the interest payable during such fiscal year
on all bonds secured in whole or in part by such
fund outstanding on the date of computation;
plus (ii) the principal amount of all such bonds and
bond anticipation notes outstanding on said date
of computation that mature during such fiscal
year; plus (iii) all amounts specified in any
resolution of the authority authorizing such bonds as
payable during such fiscal year as a sinking
fund payment with respect to any of such bonds that
mature after such fiscal year, all calculated on
the assumption that such bonds will after said date
of computation cease to be outstanding by
reason, but only by reason, of the payment of bonds
when due and application in accordance with the
resolution authorizing those bonds of all of such
sinking fund payments payable at or after said
date of computation;
(c) In
computing the amount of the capital reserve funds for the purpose of this
section,
securities in which all or a portion of such
funds shall e invested, shall be valued as provided in
the proceedings under which the bonds are
authorized but in no event shall be valued at a value
greater than par.
(d) The
authority may create and establish such other fund or funds as may be necessary
or desirable for its corporate purposes.
(e) The
authority may by resolution permit the issuance of bonds and notes to carry out
the purposes of this Act without establishing a
capital reserve fund pursuant to this section and
without complying with the limitations set forth
in this section. Bonds and notes issued pursuant
to this paragraph may be secured by such other
funds or methods as the authority may in its
discretion determine by resolution.
Sec. 13. TRUST
FUNDS. All moneys received pursuant to the authority of this Act
whether as proceeds from the sale of bonds or
notes or as revenues, receipts or income, shall e
trust funds to be held and applied solely as
provided in the proceedings under which such bonds
or notes are authorized. Any officer with whom
or any bank or trust company with which such
moneys shall be deposited as trustee hereof
shall hold and apply the same for the purposes
thereof, subject to the applicable provisions of
this Act, the proceedings authorizing the bonds or
notes and the trust agreement securing such
bonds or notes, if any.
Sec. 14.
EXEMPTION FROM TAXATION.
(a) The
exercise of the powers granted by this Act will e in all respects for the
benefit of
the people of this state, the increase of their
commerce, welfare and prosperity and for the
improvement of their health and living
conditions and will constitute the performance of an
essential governmental function and the
authority shall not be required to pay any taxes or
assessments upon or in respect of any water
supply facilities or of any property or moneys of the
authority, leveled by any municipality or
political subdivision of the state; provided, however,
that the authority shall make payments in lieu
of real property taxes and assessments and
franchise fees, to North Smithfield, with
respect to water supply facilities located in such
municipality and revenues derived from sales
therein during such times as the authority derives
revenue from the lease or operation of the same.
Such payments in lieu of taxes and assessments
and franchise fees shall be made in such amounts
as shall be agreed upon by the authority, and
the local governing body of North Smithfield.
Failing such agreement, the amount of such
payment in lieu of taxes and fees shall be
determined by the authority suing a formula that shall
reasonably assure that such amounts approximate
the average amount of real property taxes and
assessments and franchise fees which would have
been paid with respect to such water supply
facilities of a similar size and nature and
sales of water within North Smithfield. North Smithfield
is empowered to accept at its option an amount
of payments in lieu of taxes and fees less than that
determined by the authority.
(b) The
authority shall no be required to pay state taxes of any kind, and the
authority, its
property and moneys and, except for estate,
inheritance and gift taxes, any bonds or notes issued
under the provisions of this Act and the income
(including gain from sale or exchange) therefrom
shall at all times be free from taxation of
every kind by the state and by the municipalities and all
political subdivisions of the state. The
authority shall not be required to ay any transfer tax of any
kind on account of instruments recorded by it or
on its behalf.
Sec. 15. NOTES
AND BONDS AS LEGAL INVESTMENTS. The notes and bonds of
the authority are hereby made securities in
which all public officers and bodies of this state and
all municipalities and municipal subdivisions,
all insurance companies and associations, and other
persons carrying on an insurance business, all
banks, bankers, trust companies, saving banks and
saving associations, including savings and loan
associations, building and loan associations,
investment companies and other persons carrying
on a banking business, all administrators,
guardians, executors, trustees and other
fiduciaries, and all other persons whatsoever who are now
or may hereafter be authorized to invest in
bonds or obligations of the state, may properly and
legally invest funds, including capital, in
their control or belonging to them.
Sec. 16.
AGREEMENT OF THE STATE. The state does hereby pledge to and agree with
the holders of bonds or notes issued under this
act, that the state will not limit or alter the rights
hereby vested in the authority to fulfill the
terms of any agreements made with the holders until
such bonds or notes, together with interest
thereon, with interest on any unpaid installments of
interest, and all costs and expenses in
connection with any action or proceeding by or on behalf
such holders, are fully met and discharged. The
authority is authorized to include this pledge and
agreement of the state in any agreement with the
holders of such bonds or notes.
Sec. 17. CREDIT
OF STATE. Obligations issued under the provisions of this act, except
those obligations guaranteed by any municipality,
shall not constitute a debt, liability or
obligation of the state or of any political
subdivision thereof other than the authority or a pledge
of the faith and credit of the state or any
political subdivision other than the authority, but shall be
payable solely from the revenues or assets of
the authority. Each obligation issued under this act,
except those obligations guaranteed by any
municipality, shall contain on the face thereof a
statement to the effect that the authority shall
not be obligated to pay the same or interest thereon
except from revenues or assets pledged therefore
and that neither the faith and credit nor the
taxing power of the state or any political
subdivision thereof other than the authority is pledged to
the payment of the principal of or the interest
on such obligation.
Sec. 18.
REMEDIES OF BONDHOLDERS AND NOTEHOLDERS.
(a) In the
event that the authority shall default in the payment of principal of or
interest
on any bonds or notes issued under this act
after the same shall become due, whether at maturity
or upon call for redemption, and such default
shall continue for a period of thirty (30) days, or in
the event that the authority shall fail or
refuse to comply with the provisions of this act, or shall
default in any agreement made with the holders
of an issue of bonds or notes of the authority, the
holders of twenty-five percentum (25%) in
aggregate principal amount of the bonds or notes of
such issue then outstanding, by instrument or instruments
filed in the office of the secretary of
state and proved or acknowledged in the same
manner as a deed to be recorded, may appoint a
trustee to represent the holders of such bonds
or notes for the purposes therein provided.
(b) Such trustee
may, and upon written request of the holders of twenty-five percentum
(25%) in principal amount of such bonds or notes
then outstanding shall, in his or her or its own
name:
(1) enforce all
rights of the bondholders of noteholders, including the right to require the
authority to collect rent, interest, repayments
and payments on the leases, mortgages, loan
agreements and sales agreements held by it
adequate to carry out any agreement as to, or pledge
of, such rent, interest repayments and payments,
and to require the authority to carry out any
other agreements with the holders of such bonds
or notes and to perform its duties under this act;
(2) enforce all
rights of the bondholders or noteholders so as to carry out any contract as
to, or pledge of, revenues, and to require the
authority to carry out and perform the terms of any
contract with the holders of its bonds or notes
or its duties under this act;
(3) bring suit
upon all or any part of such bonds or notes;
(4) by action
or suit, require the authority to account as if it were the trustee of an
express
trust for the holders of such bonds or notes;
(5) by action
or suit, enjoin any acts or things which may be unlawful or in violation of
the rights of the holders of such bonds or
notes;
(6) declare all
such bonds or notes due and payable and, if all defaults shall be made
good, then, with the consent of the holders of
twenty-five percentum (25%) of the principal
amount of such bonds or notes then outstanding,
to annul such declaration and its consequences.
(c) Such
trustee shall in addition to the foregoing have and possess all the powers
necessary appropriate for the exercise of any
functions specifically set forth herein or incident to
the general representation of bondholders of
noteholders in the enforcement and protection of
their rights.
(d) Before
declaring the principal of bonds or notes due and payable, the trustee shall
first
give thirty (30) days' notice in writing to the
governor of the state, the local governing body of
North Smithfield, and to the authority.
(e) The
superior court of Providence County shall have jurisdiction of any suit, action
or
proceeding by the trustee on behalf of
bondholders or noteholders.
Sec. 19.
AUTHORIZATION TO ACCEPT APPROPRIATED MONEYS. The authority
is authorized to accept such moneys as may be
appropriated from time to time by the general
assembly or any municipality for effectuating
its corporate purposes including, without limitation,
the payment of the initial expenses of
administration and operation and the establishment of
reserves or contingency funds to be available
for the payment of the principal of and the interest
on any bonds, notes and other obligations of the
authority.
Sec. 20
ADVANCES AND GUARANTEE. North Smithfield is authorized to advance
funds to the authority for any of its
corporation purposes, such funds to be repaid without interest
from the proceeds of the first bonds thereafter
issued by the authority for such purposes, North
Smithfield is further authorized by action of
the local governing body to guarantee the bonds,
notes or other indebtedness of the authority,
and the amount of such guarantee shall be exempt
from the operation of the provisions of section
45-12-2 of the general laws.
Sec. 21.
AUTHORITY CHARGES AS A LIEN AGAINST PROPERTY. The authority's
charges for the provision of water shall be
billed to each user not less frequently than once each
calendar quarter; and all such charges and other
fees and charges for services or facilities
provided by the authority, together with
interest accruing thereon, shall constitute a lien upon the
estates, be they real or personal, of such user
on a parity with a lien for municipal taxes until paid
in full, but such lien shall not be subject to
termination under the provisions of section 44-9-1 of
the general laws. The authority shall have the same
right to enforce the liens against the estates,
and to collect such charges and interest from
the owners thereof, as the tax collector in the case of
municipal taxes assessed against residents of
the state.
Sec. 22. RIGHT
TO ALTER, REMAND OR REPEAL. The right to alter, amend or
appeal this act is hereby expressly reserved to
the general assembly, but no such alteration,
amendment or repeal shall operate to impair the
obligation of any contract made by the authority
under any power conferred by this act.
Sec. 23.
CONTRACTS. The owner or owners of any water supply facilities which the
authority is authorized to acquire pursuant to
the terms of this act, are hereby authorized to
acquire pursuant to the terms of this act, are
hereby authorized to sell or otherwise transfer the
same to the authority, and in the case of the
sale or transfer of water facilities pursuant to this
provision, it shall be lawful to dissolve such
corporation, any other provisions of law to the
contrary notwithstanding. The authority may
enter into contracts from time to time with any
public water supply agency or private water
company providing for the purchase or sale of water
for periods not exceeding fifty (50) years, and
all such agencies and companies are authorized to
enter into such contracts with the authority.
Sec. 24. OTHER
STATUTES AND ORDINANCES. Nothing herein contained shall
restrict or limit the powers of the authority
arising under any laws of this state, or any ordinances
of any municipality, except if such powers are
expressly contrary to the provisions of this act.
This act shall be construed to provide a
complete additional alternative method for doing the
things authorized hereby, and shall be regarded
as supplemental and in addition to the powers
conferred by other laws. The issuance of all
bonds, notes and other obligations of the authority
under the provisions of this act need not comply
with the requirements of any other statute
applicable to the issue of the same, and contracts
for the construction and acquisition of water
supply facilities undertaken pursuant to this
act need not comply with any other provisions of
state law and municipal ordinances applicable to
such contracts for the construction and
acquisition of state or municipality owned
property. No proceedings or notice of approval shall be
required for the issuance of any bonds, notes or
other obligations or any instrument of security
therefore except as herein provided. The
authority shall be exempt from the provisions of any
zoning, planning other land use control
ordinance adopted by any municipality.
Sec. 25. ANNUAL
REPORT. The authority shall submit to the North Smithfield town
administrator and the local governing body of North
Smithfield, within six months after the close
of its fiscal year a complete and detailed
report setting forth: (1) its operations and
accomplishments; (2) its receipts and
expenditures during such fiscal year accordance with the
categories and classifications established by
the authority for its operating and capital outlay
purposes; (3) its assets and liabilities at the
end of its fiscal year including a schedule of its leases
and mortgages and the status of the reserve,
special or other of its fiscal year together with a
statement of amounts redeemed and incurred
during such fiscal year. Such reports shall be
prepared independent certified public
accountants in accordance with generally accepted
principles of accounting.
Sec. 26. LIABILITY
OF THE AUTHORITY. The authority shall, subject to the period of
limitations set forth in section 9-1-25 of the
general laws, be liable in actions of tort only to the
extent that such actions do not arise from the
performance of any functions found or deemed to be
essential or discretionary governmental
functions. Any recovery in such action or any recovery by
any person in any one or more of any such
actions against the authority, its directors, employees
or agents shall not exceed one hundred thousand
dollars ($100,000) per plaintiff in the absence of
fraud or willful misconduct.
Sec. 27.
INCONSISTENT PROVISIONS. Insofar as the provisions of this act are
inconsistent with the provisions of any other
law or ordinance, general, special or local, the
provisions of this act shall be controlling.
Sec. 28.
LIBERAL CONSTRUCTION. This act being necessary for the welfare of the
state and its inhabitants shall be liberally
construed so as to effect its purposes.
Sec. 29.
SEVERABILITY. If any clause, sentence, paragraph, section, or part of this act
shall be adjudged by an court of competent
jurisdiction to be invalid, such judgment shall not
affect, impair, or invalidate the remainder
thereof, but shall be confined in its operation to clause,
sentence, paragraph, section or part directly
involved in the controversy in which such judgment
shall have been rendered.
Sec. 30.
REPEALS. All acts or parts of acts inconsistent with the provisions of this act
are hereby repealed to the extent of such
inconsistency.
Sec. 31. OPEN
MEETINGS AND PUBLIC RECORDS. All meetings of the North
Smithfield Water Authority shall be open to the
public and subject to the provisions of chapter
42-46 of the general laws. All records of the
authority shall be public records and subject to the
provisions of chapter 38-2 of the general laws.
Section 2.
REFERENDA. The question of the approval of this act shall be submitted to
the qualified electors of North Smithfield at
the election the date of which shall be determined by
agreement by the local governing body of North
Smithfield. The question shall be substantially in
the following form: "Shall an Act passed at
the 2006 Session of the General Assembly entitled
'An Act in amendment of Chapter 218 of the
Public Laws of 1993 entitled 'An Act Relating to the
Town of North Smithfield To Create the North
Smithfield Water Authority and To Provide for Its
Powers and Duties' be approved?", and the
warning for the election shall contain the question to
be submitted. From the time the election is
warned and until it is held it shall be the duty of the
clerk of North Smithfield to keep a copy of the
act available at his or her office for public
inspection but the failure of the clerk to
perform this duty shall not effect the validity of the
election.
Section 3.
EFFECTIVENESS. This section and section 2 shall take effect upon the
passage of this act. The remainder of this act
shall take effect upon the approval of this act by a
majority of those voting on the question in such
town at the election prescribed by section 2
hereof.
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LC03049/SUB
A
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