Section 11-88-5

Authorization and procedure for amendment of certificate of incorporation.

(a) The certificate of incorporation of any authority incorporated under the provisions of this article may at any time and from time to time be amended in the manner provided in this section.

(b)(1) The board of directors of the authority shall first adopt a resolution proposing an amendment to the certificate of incorporation which shall be set forth in full in the resolution and which amendment may include:

a. A change in the name of the authority;

b. The addition to the service area of the authority of new territory lying within the determining county;

c. Provisions for the operation of a system or facility the operation of which is not then provided for in the certificate of incorporation of the authority and which the authority is authorized by this article to operate;

d. Any matters which might have been included in the original certificate of incorporation;

e. Provisions for the addition to the service area of the authority of new territory lying outside the determining county, together with the related provisions referred to in paragraphs a, b, c, and d of subdivision (2) of this subsection; and

f. With respect to an authority with a service area that lies solely within one determining county, provisions for a change in the number of directors to any odd number thereof that the board deems appropriate; provided, however, in no case shall the total number of directors be less than three or more than five which provision may also provide for staggering the terms of office of any new directors in the manner contemplated by Section 11-88-6.

(2) If any proposed amendment would add to the service area of the authority new territory any part of which lies within any county other than the determining county, such proposed amendment shall include, in addition to a concise legal description of the proposed new territory and any other matters permitted by the foregoing provisions of subdivision (1) of this subsection:

a. Provision for election of at least one director by the governing body of each county in which any part of the proposed new territory lies; notwithstanding the foregoing, the county commission of a county in which the new territory is proposed to be added may waive the appointment of any director or directors by resolution of the county governing body;

b. Provision for any change in the total number of directors that the board deems appropriate; provided, however, that in no case shall such total number of directors be less than three;

c. Provision for staggering the terms of office of the directors in the manner contemplated by Section 11-88-6; and

d. Any provision that the board deems appropriate for allocation of the assets of the authority, upon dissolution, among the counties in which the service area lies.

(3) If the proposed amendment makes provision for the operation of a system or facility not then provided for in the certificate of incorporation of the authority, such proposed amendment shall include, in addition to a concise legal description of the area or areas in which the authority proposes to render service from such system or facility (which such area or areas shall lie wholly within the boundaries of the determining county and may lie either within or without or partly within and partly without the boundaries of any municipality in the determining county), a provision for an appropriate change in the name of the authority.

(c) After the adoption by the board of a resolution proposing an amendment to the certificate of incorporation of the authority, the board shall file a written application with the governing body of each county in which any part of the authority's then existing service area lies and with the governing body of each county in which any part of the proposed new territory lies. Such application shall:

(1) State, in the event that it is proposed to make provision for the operation of a system or facility not then provided for in the certificate of incorporation of the authority, that the authority proposes to render service from such a system or facility (which shall be named), contain a concise legal description of the area or areas in which the authority proposes to render the service provided for by such system or facility and state that there is no public water system, public sewer system, or public fire protection facility, as the case may be, adequate to serve any area in which it is proposed that the authority will render such service;

(2) State, in the event that it is proposed to add any new territory to the service area of the authority, that there is no public water system adequate to serve any new territory in which it is proposed that the authority will render water service, that there is no public sewer system adequate to serve any new territory in which it is proposed that the authority will render sewer service, and that there is no public fire protection facility adequate to serve any new territory in which it is proposed that the authority will render fire protection service; provided, that in lieu of the statement required by the foregoing provisions of this subdivision, the application may state that the board of directors or similar managing body of the owner of the legal or equitable title to an existing public water system, public sewer system, or public fire protection facility, as the case may be, has adopted a resolution declaring its intention to convey to the authority its interest in such existing system or facility, or both, or a leasehold estate therein;

(3) State that the amendment will promote the public health, convenience and welfare; and

(4) Request each governing body with which the application is filed to adopt a resolution declaring that it has reviewed the contents of the application and has found and determined as a matter of fact that the statements contained in the application are true.

Every such application shall be accompanied by a certified copy of the resolution adopted by the board proposing the amendment to the certificate of incorporation, together with such documents in support of the application as the board may consider appropriate.

(d) As promptly as may be practicable after the filing of the application with any governing body pursuant to the foregoing provisions of subsection (c), that governing body shall review the application and shall find and determine whether the statements in the application are true. In finding and determining whether the amendment would promote the public health, convenience, and welfare, the governing body may consider, in conjunction with any other factors it may deem relevant, the desirability of alternative means of furnishing any proposed new territory with water service, sewer service, and fire protection service, or any thereof. If the governing body finds and determines that the statements in the application are true, it shall adopt a resolution declaring that it has reviewed the application and has found and determined as a matter of fact that the statements in the application are true. If the governing body finds and determines that the statements in the application are not true, it shall deny the application. In the event that any such application shows that the authority proposes to make provision for the operation of a system or facility not then provided for in its certificate of incorporation, any governing body with whom such application is filed may, without any investigation or further consideration, assume that any statement therein that the authority proposes to render service from such a new system or facility is true and may, without any investigation or further consideration, so find and determine in such resolution.

(e) Within 40 days following the adoption by the governing body with which the application shall have been filed of a resolution declaring the statements in the application to be true (or, in the event the application was filed with the governing body of more than one county, within 40 days following the adoption of such a resolution by that governing body that was the last to adopt such a resolution, but if and only if the governing body of each other county with whom such application was filed has theretofore adopted such a resolution), the chairman of the board or other chief executive officer of the authority and the secretary of the authority shall sign and file for record in the office of the judge of probate of the determining county a certificate in the name of and in behalf of the authority, under its seal, reciting the adoption of the respective resolution by the board and by each of the governing bodies and setting forth the proposed amendment. If the proposed amendment provides for a change in the name of the authority, there shall be filed, together with the certificate required by the immediately preceding sentence, a certificate by the Secretary of State showing that the proposed new name of the authority is not identical to that of any other corporation then in existence and organized under the laws of this state or so nearly similar to that of any other such corporation as to lead to confusion and uncertainty.

(f) The judge of probate shall promptly examine each such certificate and shall determine whether it is complete and regular on its face and whether the proposed amendment complies with the provisions of this article. If the judge of probate shall find that each such certificate is complete and regular on its face and that the proposed amendment complies with the provisions of this article, the judge of probate shall enter and sign an order setting forth this finding and requiring each such certificate to be recorded, together with the order. Upon the filing for record of the order and each such certificate, the amendment to the certificate of incorporation shall become effective.

(g) If the proposed amendment effects a change in the name of the authority, the judge of probate shall promptly send a notice to the Secretary of State, advising the Secretary of State of such change.

(Acts 1965, 1st Ex. Sess., No. 107, p. 132, §5; Acts 1967, No. 410, p. 1049, §4; Acts 1991, No. 91-599, p. 1102, §1; Act 2017-432, §1.)