Section 11-89-5

Authorization and procedure for amendment of certificate of incorporation.

(a) The certificate of incorporation of any district incorporated under the provisions of this chapter 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 district shall first adopt a resolution proposing an amendment to the certificate of incorporation which shall be set forth in full in the said resolution and which amendment may include:

a. A change in the name of the district;

b. The addition to the service area of the district of new territory lying within any municipality or, in the case of territory not lying within any municipality, any county in which the district's then existing service area lies;

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 district and which the district is authorized by this chapter 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 district of new territory not lying within any municipality or, in the case of territory not lying within any municipality, any county in which the district's then existing service area lies, together with the related provisions referred to in paragraphs a, b, and c of subdivision (2) of this subsection; and

f. In the case of a supply district which proposes to cease being only a supply district, the creation of a service area for the district.

(2) If any proposed amendment would add any new territory to the service area of a district, or create a service area, such proposed amendment shall include a concise legal description of the proposed new territory or proposed service area and a designation of the type or types of service proposed to be rendered therein. If any proposed amendment would add to the service area of the district new territory or create a service area any part of which does not lie within any municipality or, in the case of territory or service area not lying within any municipality, any part of which does not lie within any county in which any then existing service area lies, such proposed amendment shall include, in addition:

a. Provisions for election of at least one director by the governing body of each county and municipality in which any part of the proposed new territory or the proposed service area lies;

b. Provisions for any change in the total number of directors that the board deems appropriate; and, if the district is a supply district, any provision to give the directors proportional voting power based upon the quantity of water to be taken or paid for by the entities which will elect the directors, the percentage of indebtedness of the district for which the entities electing the directors will be guarantors, or any other measure for establishing proportional voting power of directors; provided, however, that the total number of directors shall be at least equal to the number of directors immediately before the amendment, plus the number added pursuant to paragraph a of this subdivision (2); and

c. Any provision that the board deems appropriate for apportioning of the properties of the district upon its dissolution among its customers, if it is a supply district, or among the counties and municipalities in which its service area will lie upon the filing for record of said proposed amendment.

(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 district, such proposed amendment shall also include, in addition to a concise legal description of the area or areas in which the district proposes to render service from such system or facility provision for an appropriate change in the name of the district.

(4) It shall not be necessary for a supply district to amend its certificate of incorporation merely to add one or more additional municipalities, counties, or public corporations as customers.

(c) After the adoption by the board of a resolution proposing an amendment to the certificate of incorporation of the district, the chairman of the board or other chief executive officer of the district and the secretary of the district shall sign and file a written application in the name of and on behalf of the district, under its seal, with the governing body of each authorizing subdivision and each additional county and municipality in which any part of the district's then existing service area lies and with the governing body of each county and municipality in which any part of the proposed new territory or the proposed service area lies. Such application shall request each governing body with which the application is filed to adopt a resolution approving the proposed amendment and shall be accompanied by a certified copy of the said resolution adopted by the board proposing the said amendment to the certificate of incorporation, together with such documents in support of the application as the said chairman or other chief executive officer may consider appropriate.

(d) As promptly as may be practicable after the filing of the said application with any governing body pursuant to the provisions of subsection (c) of this section, that governing body shall review the said application and shall adopt a resolution either denying the said application or authorizing the proposed amendment. Each governing body with which the application is filed shall also cause a copy of the said application and all accompanying documents to be spread upon or otherwise made a part of the minutes of the meeting of said governing body at which final action upon the said application is taken.

(e) Within 40 days following the adoption by the governing body with which the said application shall have been filed of a resolution approving the proposed amendment or, in the event said application was filed with the governing bodies of more than one county or public corporation or municipality, 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, public corporation, and municipality with whom such application was filed has theretofore adopted such a resolution, the chairman of the board or other chief executive officer of the district and the secretary of the district shall sign and file for record in the office of the judge of probate of the county where the certificate of incorporation of the district was filed a certificate in the name of and in behalf of the district, under its seal, reciting the adoption of said respective resolutions by the board and by each of the said governing bodies and setting forth the said proposed amendment. If the proposed amendment provides for a change in the name of the district, there shall be filed, together with the certificate required by the immediately preceding sentence, a certificate of the Secretary of State showing that the proposed new name of the district 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 so as to lead to confusion and uncertainty. Upon the filing for record of each such certificate, the said amendment to the certificate of incorporation shall become effective. If the proposed amendment effects a change in the name of the district, the judge of probate shall promptly send a notice to the Secretary of State, advising him of such change.

(Acts 1970, Ex. Sess., No. 29, p. 2630, §5; Acts 1989, No. 89-745, p. 1494, §4.)