77-5-717 - Creation of joint agencies; application process; issuance of certificate of incorporation.
§ 77-5-717. Creation of joint agencies; application process; issuance of certificate of incorporation.
The utility commissions of two (2) or more municipalities may, by resolution or ordinance, determine that it is in the best interests of the municipalities in accomplishing the purposes of this article to create a joint agency as prescribed herein for the purpose of undertaking the planning, financing, development, acquisition, construction, reconstruction, improvement, enlargement, betterment, operation and maintenance of a project or projects to supply electric power and energy for their present or future needs as an alternative or supplemental method of obtaining the benefits and assuming the responsibilities of ownership in a project. In determining whether or not the creation of a joint agency for such purpose is in the best interests of the municipalities, the utility commissions shall take into consideration, but shall not be limited to, the following:
(a) Whether or not a separate entity may be able to finance the cost of projects in a more efficient and economical manner;
(b) Whether or not better financial market acceptance may result if one (1) entity is responsible for issuing all of the bonds required for a project or projects in a timely and orderly manner and with a uniform credit rating instead of multiple entities issuing separate issues of bonds;
(c) Whether or not savings and other advantages may be obtained by providing a separate entity responsible for the acquisition, construction, ownership and operation of a project or projects; and
(d) Whether or not the existence of such a separate entity will foster the continuation of joint planning and undertaking of projects, and the resulting economies and efficiencies to be derived from such joint planning and undertaking.
If each utility commission shall determine that it is in the best interest of the municipality to create a joint agency to provide power and energy to the municipality as provided in this article, each shall adopt a resolution so finding (which need not prescribe in detail the basis for the determination) and which shall set forth the names of the municipalities which are proposed to be initial members of the joint agency. Said resolution shall be certified to the governing authorities who shall thereupon disapprove or ratify the determination of said utility commission by resolution or ordinance spread upon its official minutes. The governing authority shall cause notice of such determination to be given to the presiding officer of the utility commission of the municipality, which utility commission shall thereupon appoint in writing one (1) commissioner of the joint agency, which commissioner may, in the discretion of the utility commission be an officer or employee of the municipality.
Any two (2) or more commissioners so named may file with the secretary of state an application signed by them setting forth (i) the names of all proposed member municipalities; (ii) the name and official residence of each of the commissioners so far as known to them; (iii) a certified copy of the appointment evidencing their right to office; (iv) a statement that each utility commission of each respective municipality appointing a commissioner has made the aforesaid determination; (v) a statement that each governing authority of each respective municipality has ratified the determination of the utility commission; (vi) the desire that a joint agency be organized as a public body and a body corporate and politic under this article; and (vii) the name which is proposed for the joint agency.
The application shall be subscribed and sworn to by such commissioners before an officer or officers authorized by the laws of the state to administer and certify oaths, and shall be accompanied by a fee in the amount of fifty dollars ($50.00) payable to the secretary of state as a filing fee.
The secretary of state shall examine the application and, if he finds that the name proposed for the joint agency is not identical with that of any other corporation of this state or of any agency or instrumentality thereof, or so nearly similar as to lead to confusion and uncertainty, he shall receive and file it and shall record it in an appropriate book of record in his office.
When the application has been made, filed and recorded as herein provided, the joint agency shall constitute a public body and a body corporate and politic under the name proposed in the application. The secretary of state shall make and issue to the commissioners executing the application a certificate of incorporation pursuant to this article under the seal of the state, and shall record the same with the application. The certificate shall set forth the names of the member municipalities.
In any suit, action or proceeding involving the validity or enforcement of, or relating to, any contract of the joint agency, the joint agency, in the absence of establishing fraud in the premises, shall be conclusively deemed to have been established in accordance with the provisions of this article upon proof of the issuance of the aforesaid certificate by the secretary of state. A copy of such certificate, duly certified by the secretary of state, shall be admissible in evidence in any such suit, action or proceeding, and shall be conclusive proof of the filing and contents thereof.
Notice of the issuance of such certificate shall be given to all of the proposed member municipalities by the secretary of state. If a commissioner of any such municipality has not signed the application to the secretary of state and such municipality does not notify the secretary of state of the appointment of a commissioner within forty (40) days after receipt of such notice, such municipality shall be deemed to have elected not to be a member of the joint agency. As soon as practicable after the expiration of such period of forty (40) days, the secretary of state shall issue a new certificate of incorporation, if necessary, setting forth the names of those municipalities which have elected to become members of the joint agency. The failure of any proposed member to become a member shall not affect the validity of the corporate existence of the joint agency.
Sources: Laws, 1978, ch. 363, § 9(1), eff from and after passage (approved March 14, 1978).