§ 25-20-302 - Creation.
25-20-302. Creation.
(a) Any two (2) or more public agencies entering into an interlocal agreement under the Interlocal Cooperation Act, 25-20-101 et seq., for the purpose of consolidating their waterworks systems are hereby authorized to create a public body corporate and politic as a separate legal entity for the purpose of constructing, owning, managing, operating, financing, improving, extending, acquiring, reconstructing, equipping, selling, leasing, contracting concerning, dealing in, disposing of, and maintaining the consolidated waterworks system.
(b) The governing body of each public agency wishing to create a public body under this subchapter shall approve, by ordinance or resolution or otherwise pursuant to law, the filing of an application with the Secretary of State to create a public body under this subchapter and approve an interlocal agreement specifying the matters set forth in 25-20-104. Additionally, the interlocal agreement shall:
(1) Specify any limitations on the exercise of the public body's powers, including such matters, if any, as to which the participating public agencies reserve rights to approve, disapprove, or otherwise participate in any exercise of the public body's powers;
(2) Provide for such reasonable franchise fees, payments in lieu of taxes, or other payments by the public body to the participating public agencies as the public agencies may deem appropriate;
(3) Specify the number of commissioners of the public body, the terms of office of the commissioners, the manner of appointing or electing the commissioners, the residency requirements, if any, applicable to commissioners in addition to those set forth in this subchapter, and the voting rights of each commissioner. The voting rights may vary by commissioner; and
(4) Set forth such other matters, not inconsistent with this subchapter, with respect to the creation and operation of the public body as the participating public agencies may deem necessary or appropriate.
(c) (1) An application to create a public body under this subchapter shall then be prepared, setting forth:
(A) A request that a public body corporate and politic be created under this subchapter;
(B) The proposed name for the public body;
(C) The names of the participating public agencies;
(D) The number of commissioners of the public body;
(E) The manner in which commissioners of the public body will be appointed or elected and the residency requirements, if any, applicable to commissioners in addition to those set forth in this subchapter;
(F) The voting rights of each commissioner;
(G) Special procedures for amending the certificate of incorporation, if any; and
(H) Such other matters, not inconsistent with this subchapter, with respect to the creation and operation of the public body as the participating public agencies may deem necessary or appropriate.
(2) The application shall be signed on behalf of each participating public agency by an authorized official of the public agency.
(d) (1) The Secretary of State shall examine the application and, if the Secretary of State finds that the name proposed for the public body is not identical with that of any other corporation, agency, or instrumentality of this state, so nearly similar as to lead to confusion and uncertainty, or otherwise deceptively misleading, the Secretary of State shall:
(A) Receive and file the application;
(B) Record it in an appropriate book of record in his or her office;
(C) Make and issue a certificate of incorporation under the seal of the state setting forth the name of the public body and the names of the participating public agencies; and
(D) Record the certificate in an appropriate book of record in his or her office.
(2) A copy of the certificate of incorporation, certified by the Secretary of State, shall be admissible in evidence in any suit, action, or proceeding involving the validity or enforcement of, or relating to, any contract of the public body and shall be conclusive proof of the filing and contents of the certificate and the effective creation of the public body under this subchapter, absent fraud in the premises being established.
(e) (1) Any certificate of incorporation issued by the Secretary of State pursuant to the provisions of this subchapter may be amended from time to time in the manner provided in the certificate of incorporation then existing or, if the certificate of incorporation does not specify a procedure for its amendment, with the consent of a majority of the commissioners of the public body who are entitled to vote.
(2) (A) The amendment shall be signed by an officer or other authorized person of the public body, who shall certify that the certificate of incorporation has been duly amended in accordance with the procedures of this subchapter and, as applicable, in the manner prescribed in the then-existing certificate of incorporation.
(B) Upon filing of the amendment with the Secretary of State in the manner provided in this section, the Secretary of State shall make and issue an amendment to the certificate of incorporation.