2002 Regular Session
To: Municipalities; Ways and Means
By: Representative Wallace
AN ACT TO CREATE THE "MISSISSIPPI STORM WATER MANAGEMENT DISTRICT ACT"; TO STATE THE FINDINGS OF THE LEGISLATURE; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR THE CREATION OF A STORM WATER MANAGEMENT DISTRICT BY A SINGLE COUNTY OR MUNICIPALITY OR ANY COMBINATION OF COUNTIES AND/OR MUNICIPALITIES; TO PROVIDE FOR ADOPTION OF A RESOLUTION CREATING A DISTRICT; TO REQUIRE PUBLICATION OF THAT RESOLUTION; TO AUTHORIZE A REFERENDUM ON THE CREATION OF THE DISTRICT UPON FILING OF A PROTEST; TO AUTHORIZE THE PAYMENT OF COSTS FOR THE CREATION OF A DISTRICT; TO PROVIDE FOR AN APPEAL OF A RESOLUTION OR ORDINANCE CREATING A DISTRICT; TO AUTHORIZE THE INCORPORATION OF A DISTRICT; TO PROVIDE FOR PUBLICATION OF THE INCORPORATION AGREEMENT; TO AUTHORIZE AMENDMENTS OF THE INCORPORATION AGREEMENT AND THE WITHDRAWAL OF A MEMBER OF THE DISTRICT; TO PROVIDE FOR THE APPOINTMENT OF A BOARD OF COMMISSIONERS OF THE DISTRICT AND FOR THEIR TERMS OF OFFICE AND COMPENSATION; TO AUTHORIZE THE BOARD OF COMMISSIONERS TO EXERCISE CERTAIN POWERS AND DUTIES; TO ALLOW PUBLIC AGENCIES TO CONTRACT WITH THE DISTRICT FOR FACILITIES AND SERVICES; TO AUTHORIZE THE DISTRICT TO ISSUE SPECIAL IMPROVEMENT BONDS AND REVENUE BONDS FOR PROJECTS; TO ALLOW TEMPORARY BORROWING IN ANTICIPATION OF BOND PROCEEDS; TO AUTHORIZE THE GOVERNING BODY OF A COUNTY AND/OR A MUNICIPALITY TO EXERCISE THE POWER OF EMINENT DOMAIN UPON REQUEST OF THE BOARD OF COMMISSIONERS; TO AUTHORIZE THE GOVERNING BODY OF A COUNTY AND/OR A MUNICIPALITY TO LEVY AN AD VALOREM TAX NOT TO EXCEED FOUR MILLS ON TAXABLE REAL PROPERTY IN THE DISTRICT AND TO MAKE SPECIAL ASSESSMENTS ON REAL PROPERTY IN THE DISTRICT; TO PROVIDE FOR THE CALCULATION OF SPECIAL ASSESSMENTS; TO REQUIRE THE IMPOSITION OF CERTAIN RATES, FEES, TOLLS OR CHARGES TO SUPPORT ANY REVENUE BONDS ISSUED; TO AUTHORIZE THE CREATION OF A BILLING AND COLLECTION SYSTEM FOR STORM WATER FEES; TO AUTHORIZE THE BILLING AND COLLECTION OF STORM WATER FEES ON CERTAIN UTILITY BILLS; TO REQUIRE THAT A CERTAIN PORTION OF THE PAYMENT ON UTILITY BILLS BE DISTRIBUTED AS STORM WATER FEE PAYMENTS; TO REQUIRE DISTRICTS TO FILE CERTAIN FINANCIAL REPORTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Sections 1 through 32 of this act shall be known and cited as the "Mississippi Storm Water Management District Act."
SECTION 2. The Legislature hereby finds and declares that:
(a) Storm water may contain contaminants which can degrade surface water quality;
(b) Due to the volume of water and the rate of flow, storm water runoff can pose a flood hazard to public and private property;
(c) The proper management of storm water is of concern to all citizens and is an activity thoroughly affected with the public interest;
(d) In certain areas of the state, the health, safety and welfare of the people of this state require efficient management of storm water;
(e) Federal regulations require portions of some local governments to develop and implement storm water management programs;
(f) There is a need for proper planning, design, construction, operation and maintenance of appropriate measures for the management of storm water; and
(g) There is a need to foster cooperation among local governments in addressing concerns resulting from storm water management, therefore it is necessary and desirable to authorize the creation of storm water management districts by counties and municipalities to plan for, design, acquire, construct, operate maintain appropriate measures for management of storm water.
SECTION 3. Whenever used in Sections 1 through 32 of this act, the following words and terms shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Board" means the board of commissioners of a district.
(b) "Cost of project" means:
(i) All costs of site preparation and other start-up costs;
(ii) All costs of construction;
(iii) All costs of real and personal property required for the purposes of the project and facilities related thereto, including land and any rights or undivided interest therein, easements, franchises, fees, permits, approvals, licenses, and certificates and the securing of any permits, approvals, licenses, and certificates and all machinery and equipment, including motor vehicles which are used for project functions;
(iv) All costs of engineering, geotechnical, architectural and legal services;
(v) All costs of plans and specifications and all expenses necessary or incident to determining the feasibility or practicability of the project;
(vi) Administrative expenses; and
(vii) Any other expenses as may be necessary or incidental to the financing authorized in Sections 1 through 32 of this act.
(c) "County" means any county of this state.
(d) "Designated representative" or "incorporator" means the person named by resolution of the governing body of a county or municipality as the representative of that unit of local government for the purpose of acting on their behalf as an incorporator in concert with other similarly named persons in the creation and incorporation of a storm water management district created under Sections 1 through 32 of this act.
(e) "District" means a storm water management district created under Sections 1 through 32 of this act.
(f) "Ditch" means any branch or lateral drain, tile drain, levee, sluiceway, water course, floodgate, and any other construction work found necessary for the reclamation of wet and overflowed lands.
(g) "Facilities" mean any structure, building, open channel, ditch, pipe, channel, improvement, land, or other real or personal property used or useful in storm water management system under Sections 1 through 32 of this act.
(h) "Governing body" means the elected or duly appointed officials constituting the governing body of a municipality or county.
(i) "Incorporation agreement" means that agreement between the designated representatives of various units of local government setting forth the formal creation of a storm water management district created under Sections 1 through 32 of this act.
(j) "Member" means a unit of local government participating in a district.
(k) "Municipality" means any incorporated city or town in this state.
(l) "Project" means the collection, conveyance, retention, detention and any other portion of a storm water management system and any property, real or personal, used as or in connection with those purposes.
(m) "Public agency" means any incorporated city or town, county, political subdivision, governmental district or unit, public corporation, public institution of higher learning, community college district, planning and development district, or governmental agency created under the laws of the state.
(n) "State" means the State of Mississippi.
(o) "Storm water" means any flow occurring during or following any form of natural precipitation and resulting from that precipitation.
(p) "Storm water management system" means a system which is designed and constructed, implemented or operated to control storm water discharges to prevent or reduce flooding, over drainage or water pollution or to otherwise affect the quantity or quality of discharges from the system. The storm water management system includes all pipes, channels, ditches, streams, wetlands, detention or retention basins, ponds or other storm water conveyance or treatment facilities.
(q) "Unit of local government" means any county or municipality of the state.
SECTION 4. (1) Any single unit of local government or any combination of units of local government may form a district.
(2) Creation of a district shall be initiated by ordinance or resolution duly adopted by the governing body of each unit of local government. The ordinance or resolution shall state: (a) the necessity for the proposed district; (b) the primary function of the proposed district; (c) the boundaries of the proposed district within the jurisdiction of the unit of local government; (d) the names of any other units of local government proposing to be in the district; (e) the date upon which the governing body intends to create the district; (f) the estimated cost of projects to be conducted and maintained by the district; however the estimate shall not serve as a limitation upon the financing of any project; (g) a statement of whether or not the governing body of the unit of local government shall exercise the authority to levy the ad valorem tax outlined in Section 26; (h) a statement of whether or not the governing body of the unit of local government shall exercise the authority to levy the assessments outlined in Section 27 and the amount of special improvement bonds or revenue bonds which will be authorized under this act; and (i) the name of designated representative of the unit of local government to enter into an incorporation agreement with the other units of local government, if applicable.
(3) The governing body of the unit of local government may hold a public meeting or public hearing on the necessity for creation of the district. The governing body shall provide proper notice of any public meeting or public hearing.
SECTION 5. (1) A certified copy of the adopted resolution or ordinance shall be published in a newspaper having a general circulation within the proposed district once a week for at least three (3) consecutive weeks before the date specified in the resolution as the date upon which the board intends to create the district. The first publication of the notice shall be made not less than twenty-one (21) days before the date specified, and the last publication shall be made not more than seven (7) days before the date.
(2) If twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified electors of the proposed district file a written petition with the governing body before the date specified in the resolution under subsection (2) of Section 4 protesting the creation of the district, the governing body shall call an election on the question of the creation of the district. The election shall be held and conducted by the election commissioners of the county or municipality as nearly as may be in accordance with the general laws governing elections. The election commissioners shall determine which of the qualified electors of the county or municipality reside within the proposed district, and only those qualified electors as reside within the proposed district shall be entitled to vote in the election. Notice of the election setting forth the time, place or places, and purpose of the election shall be published by the clerk of the board of supervisors or the municipal clerk, as the case may be. The notice shall be published for the time and in the manner provided in subsection (1) of this section. The ballot to be prepared for and used at the election shall be in substantially the following form:
"FOR CREATION OF __________ DISTRICT: ( )
AGAINST CREATION OF __________ DISTRICT: ( )"
Voters shall vote by placing a cross mark (x) or check mark (U) opposite their choice.
SECTION 6. If no petition requiring an election is filed or if three-fifths (3/5) of those voting in the election provided in Section 5 of this act vote in favor of the creation of the district, the governing body shall adopt a resolution or ordinance authorizing the creation of the district.
SECTION 7. All costs incident to the publication of the notices, election and all other costs of meeting the requirements of this act shall be paid by the governing body.
SECTION 8. Any party having an interest in the subject matter and aggrieved or prejudiced by the findings and adjudication of the governing body may appeal to the circuit court of the county in the manner provided by law for appeals from orders of the board of supervisors or municipal authorities in Section 11-51-75. However, if no appeal is taken within fifteen (15) days after the date of the adoption of the resolution or ordinance as provided in Section 6 of this act, the creation of the district within the jurisdiction of that unit of local government shall be final and shall not be subject to attack in any court after that time.
SECTION 9. (1) Within thirty (30) days following the adoption of the final authorizing resolution, the designated representatives shall proceed to incorporate a district by filing for record in the office of the chancery clerk of the participating counties and/or the clerk of participating municipalities, as the case may be, and the Secretary of State an incorporation agreement approved by each member. The agreement shall comply in form and substance with the requirements of this section and shall be executed in the manner provided in Sections 1 through 32 of this act.
(2) The incorporation agreement of a district shall state:
(a) The name of each participating unit of local government and the date on which the governing bodies thereof adopted an authorizing resolution;
(b) The name of the district which must include the words "_______________ Storm Water Management District," the blank spaces to be filled in with the name of one or more of the members or other geographically descriptive term. If the Secretary of State determines that the name is identical to the name of any other corporation organized under the laws of the state or so nearly similar as to lead to confusion and uncertainty, the incorporators may insert additional identifying words so as to eliminate any duplication or similarity;
(c) The period for the duration of the district;
(d) The location of the principal office of the district which shall be within the boundaries of the members;
(e) That the district is organized under Sections 1 through 32 of this act;
(f) The board setting forth the number of commissioners, terms of office and the vote of each commissioner;
(g) If the exercise by the district of any of its powers is to be in any way prohibited, limited or conditioned, a statement of the terms of that prohibition, limitation or condition;
(h) Any provisions relating to the vesting of title to its properties upon its dissolution which shall be vested in any member; and
(i) Any other related matters relating to the district that the incorporators may choose to insert and that are not inconsistent with Sections 1 through 32 of this act or with the laws of the state.
(3) The incorporation agreement shall be signed and acknowledged by the incorporators before an officer authorized by the laws of the state to take acknowledgements. When the incorporation agreement is filed for record, there shall be attached to it a certified copy of the authorizing resolution adopted by the governing body of each member.
(4) The incorporators shall publish a notice of incorporation once a week for three (3) consecutive weeks in a daily newspaper or newspapers having general circulation throughout the area to be served.
(5) If the district is composed of a single county or single municipality, the governing body of that county or municipality may serve as the board of commissioners of the district and may exercise those powers and duties granted to the board under Sections 1 through 32 of this act.
(6) Upon the filing for record of the agreement and the required documents, the district shall come into existence and shall constitute a public corporation under the name set forth in the incorporation agreement. The Secretary of State shall issue a certificate of incorporation to the district.
(7) The district shall be a public body corporate and politic constituting a political subdivision of the state and shall be deemed to be acting in all respects for the benefit of the people of the state in the performance of essential public functions and the district shall be empowered in accordance with Sections 1 through 32 of this act to promote the health, welfare and prosperity of the general public.
SECTION 10. (1) The incorporation agreement of any district may be amended in the manner provided in this section. The board of the district shall first adopt a resolution proposing an amendment to the incorporation agreement. The amendment shall be set forth in full in the resolution and may include any matters which might have been included in the original incorporation agreement.
(2) After the adoption of the resolution by the board, the chairman of the board and the secretary of the district shall file a certified copy of the resolution and a signed written application in the name of and on behalf of the district, under its seal, with the governing body of each member, requesting the governing body to adopt a resolution approving the proposed amendment. As promptly as may be practicable after the filing of the application with the governing body, that governing body shall review the application and shall adopt a resolution either denying the application or authorizing the proposed amendment. Any resolution shall be published in a newspaper or newspapers as provided in Section 5 of this act. The governing body shall cause a copy of the application and all accompanying documents to be spread upon or otherwise made a part of the minutes of the meeting of the governing body at which final action upon the application is taken. The incorporation agreement may be amended only after the adoption of a resolution by two-thirds (2/3) of the governing bodies of the members. Publication of the amendment shall be made as provided in Section 5 of this act.
(3) Within thirty (30) days following the adoption of the last adopted resolution approving the proposed amendment, the chairman of the board and the secretary of the district shall sign, and file for record in the office of the chancery clerk and/or municipal clerk with which the incorporation agreement of the district was originally filed and the Secretary of State, a certificate in the name of and in behalf of the district, under its seal, reciting the adoption of the respective resolutions by the board and by the governing body of each member and setting forth the amendment. The chancery clerk for the county and/or municipal clerk for the municipality shall record the certificate in an appropriate book in the clerk's office. When the certificate has been so filed and recorded, the amendment shall become effective. No incorporation agreement of an district shall be amended except in the manner provided in this section.
(4) Any member of a district may withdraw from the district by submitting a resolution to the board requesting an amendment to the incorporation agreement under subsection (1) of this section. Upon compliance with the requirements of subsections (1) through (3) of this section and payment of its pro rata share of any indebtedness, costs, expenses or obligations of the district outstanding at the time of withdrawal, the amendment may be come effective upon adoption of a resolution by the board. The withdrawal of a member shall not operate to impair, invalidate, release or abrogate any contract, lien, bond, permit, indebtedness or obligation of the district, except to leave the withdrawing member from further financial obligation to the district.
SECTION 11. (1) All powers of the district shall be vested in the board of commissioners. Each member of the district shall have at least one (1) commissioner on the board. The incorporators shall by duly adopted resolution or bylaws designate the vote of each commissioner based upon pro rata population or any other criteria as they may determine. In the alternative, the incorporators by duly adopted resolution, may authorize appointments to the board by the members to reflect population, or any other criteria as the incorporators may determine. In addition, the incorporators shall designate a term for each commissioner at the time of incorporation so as to establish staggered terms of office. No commissioner shall serve for a term to exceed four (4) years unless duly reappointed. Any resolutions for the composition of the board and the vote of its commissioners shall be filed with the incorporation agreement.
(a) Initially, the board shall be composed as follows:
(i) Within thirty (30) days of the effective date of the incorporation agreement, the governing body of each participating county and/or municipality shall appoint at least one (1) person to the board as determined by the resolution of the incorporators.
(ii) The governing body of each county or municipality shall appoint only individuals who are residents of its respective county or municipality or an employee thereof.
(iii) The number of commissioners of the board shall be increased by at least one (1) each time a county or municipality enters into membership. The board shall establish the vote or number of commissioners based upon the same terms as the original resolution of the incorporators. Within fifteen (15) days after becoming a member, the governing body of the county or municipality, shall appoint at least one (1) person to the board. Any commissioner appointed under this provision shall serve for a term of four (4) years.
(iv) After the initial term, the commissioners shall serve a term of four (4) years, and for any period thereafter until a successor shall be duly appointed and qualified.
(b) Each commissioner of the board shall be eligible for reappointment. All vacancies shall be filled by appointment in the same manner, provided that any person appointed to fill a vacancy serve only for the unexpired term. Any commissioner may be removed at any time before the expiration of the member's term of office for misfeasance, malfeasance or willful neglect of duty, as determined by the appointing political subdivision. Before assuming office, each commissioner shall take and subscribe to the constitutional oath of office before a chancery clerk or municipal clerk, and a record of that oath shall be filed with the Secretary of State. The board of commissioners shall annually select a chairman and a vice chairman.
(2) The board may appoint an executive committee to be composed of not less than three (3) persons. No member shall have more than one (1) representative on the executive committee. The chairman of the board shall serve as chairman of the executive committee. The executive committee may execute all powers vested in the full board between meetings of the board. A majority plus one (1) shall constitute a quorum for the transaction of business. All actions of the executive committee must be ratified by a majority of the board at a regular or called meeting of the board.
(3) The board may employ any personnel and appoint and prescribe the duties of any officers as the board deems necessary or advisable, including a general manager and a secretary of the district. The general manager may also serve as secretary and shall be a person of good moral character and of proven ability as an administrator with a minimum of five (5) years' experience in the management and administration of a public works operation or comparable experience which may include, but is not limited to, supervision, public financing, regulatory codes and related functions as minimum qualifications to administer the programs and duties of the district. The general manager shall administer, manage and direct the affairs and business of the district, subject to the policies, control and direction of the board. The general manager and any commissioner not bonded in another capacity shall give bond executed by a surety company or companies authorized to do business in this state in the penal sum of Fifty Thousand Dollars ($50,000.00) payable to the district conditioned upon the faithful performance of that person's duties and the proper accounting for all funds. The board may require any of its employees to be bonded. The cost of any bond required by this section or by the board shall be paid from funds of the district. The secretary shall keep a record of the proceedings of the district and shall be custodian of all books, documents and papers filed with the district, the minute book or journal, and the official seal. The secretary may make copies of all minutes and other records and documents of the district and to certify under the seal of the district that the copies are true and accurate copies, and all persons dealing with the district may rely upon those certificates.
(4) Regular meetings of the board shall be held as set forth in its bylaws, rules or regulations. Additional meetings of the board shall be held at the call of the chairman or whenever a majority of commissioners so request.
(5) Upon express and prior authorization of the district, each commissioner may receive compensation in an amount not to exceed Forty Dollars ($40.00) per day for attending each day's meeting of the board and for each day spent in attending to the business of the district. In addition, each commissioner may receive reimbursement for actual and necessary expenses incurred as provided by Section 25-3-41, Mississippi Code of 1972. Each commissioner shall not be entitled to any additional compensation other than that specifically provided for in this subsection.
(6) The board shall prepare a budget for the district for each fiscal year at least ninety (90) days before the beginning of each fiscal year, which shall be from July 1 to June 30 of each year, and shall submit it to the governing body of each member.
SECTION 12. The board may contract with any county or municipality to provide support services and any member may contract with or as part of their service contract with the district to provide any staff support, administrative and operational services as it deems advisable and on any terms as may be mutually agreed.
SECTION 13. After the creation of a district it shall be a public corporation participating under its corporate name and shall, in that name, be a body politic and corporate with all the rights and powers necessary or convenient to carry out the purposes of Sections 1 through 32 of this act, including, but not limited to, the following:
(a) To sue and be sued in its own name;
(b) To adopt an official seal and alter the same at pleasure;
(c) To maintain an office or offices at any place or places within the jurisdiction of its members as it may determine;
(d) To acquire, construct, improve, or modify, to operate or cause to be operated and maintained, either as owner of all or of any part in common with others, a storm water management system within the counties or municipalities in the district. The district may pay all or part of the cost of any storm water management system from the proceeds of bonds of the district or from any contribution or loans by persons, firms, public agencies or corporations or from any other contribution or user fees. The district is authorized to receive, accept, and use all funds, public or private and to pay all cost of development, implementation and maintenance as may be determine as necessary for any project;
(e) To acquire, in its own name, by purchase on any terms and conditions and in any manner as it may deem proper, except by eminent domain, property for public use, or by gift, grant, lease, or otherwise, real property or easements therein, franchises and personal property necessary or convenient for its corporate purposes. These purposes shall include, but are not limited to, the constructing or acquiring of a storm water management system; the improving, extending, reconstructing, renovating, or remodeling of any existing storm water management system or part thereof; or the demolition to make room for any project or any part thereof and to insure the same against any and all risks as any insurance may, from time to time, be available. The district may also use any property and rent or lease any property to or from others, including public agencies, or make contracts for the use thereof or sell, lease, exchange, transfer, assign, pledge, mortgage or grant a security interest for any property. The powers to acquire, use, and dispose of property as set forth in this paragraph shall include the power to acquire, use, and dispose of any interest in that property, whether divided or undivided. Title to any property of the district shall be held by the district exclusively for the benefit of the public;
(f) To make, enforce, amend and repeal bylaws and rules and regulations for the management of its business and affairs and for the use, maintenance and implementation of any of its storm water management system, project facilities and any other of its properties;
(g) To fix, charge, collect, maintain, and revise rates, fees tolls and charges for any services rendered by it to any person or public agency as provided in Section 29 of this act;
(h) To make contracts and leases with any person or public agency and to execute all instruments necessary or convenient for construction, operation, and maintenance of the storm water management system and leases of projects. Without limiting the generality of the above, authority is specifically granted to municipalities and counties and to the district to enter into contracts, lease agreements, or other undertaking relative to the furnishing of storm water management system services and facilities or either of them by the district to the municipalities and counties and by the municipalities and counties to the district;
(i) To borrow money and to issue bonds for any of its purposes, except bonds may not be issued for operating or implementation costs. The district may provide for and secure the payment of those bonds, and provide for the rights of the bondholders;
(j) To invest any monies of the district, including proceeds from the sale of any bonds subject to any agreements with bondholders, on any terms and in any manner as the district deems proper;
(k) To exercise any one or more of the powers, rights, and privileges conferred by Sections 1 through 32 of this act either alone or jointly or in common with one or more other public or private parties. In any exercise of any powers, rights, and privileges jointly or in common with others for the construction, operation, and maintenance of facilities, the district may own an undivided interest in any facilities with any other party with which it may jointly or in common exercise the rights and privileges conferred by Sections 1 through 32 of this act and may enter into an agreement or agreements with respect to any facility with the other party or parties participating in those facilities. An agreement may contain any terms, conditions, and provisions, consistent with this section, as the parties to the agreement shall deem to be in their best interest, including, but not limited to, provisions for the planning, design, construction, operation, implementation and maintenance of any facility by any one or more party of the parties to an agreement. The party or parties shall be designated in or under any agreement as agent or agents on behalf of itself and one or more of the other parties thereto, or by any other means as may be determined by the parties thereto, and including provisions for a method or methods of determining and allocating, among or between the parties, costs of planning, design, construction, operation, maintenance, renewals, replacements, improvements, and disposal related to any facility. In carrying out its functions and activities as an agent with respect to planning, design, construction, operation, and maintenance of any facility, the agent shall be governed by the laws and regulations applicable to that agent as a separate legal entity and not by any laws or regulations which may be applicable to any of the other participating parties. The agent shall act for the benefit of the public. In any agreement, the district may delegate its powers and duties related to the planning, design, construction, operation, and maintenance of any facility to the party acting as agent and all actions taken by that agent in accordance with the agreement may be binding upon the district without further action or approval of the district;
(l) To apply, contract for, accept, receive and administer gifts, grants, appropriations, and donations of money, materials, and property of any kind, including loans and grants from the United States, the state, a unit of local government, or any agency, department, authority, or instrumentality of any of the foregoing, upon any terms and conditions as the United States, the state, a unit of local government, or any agency, department, authority, or instrumentality shall impose. The district may administer trusts. The district may sell, lease, transfer, convey, appropriate and pledge any and all of its property and assets;
(m) To employ professional and administrative staff and personnel and to retain legal, engineering, fiscal, accounting and other professional services;
(n) To borrow money and issue its bonds from time to time and to use the proceeds to pay all or part of the capital costs of any project, or for refunding any bonds of the district. In carrying out the purposes of this section and to pay all other capital costs, but not operating costs of the district, incident to, or necessary and appropriate to, the purposes, including the providing of funds to be paid into any fund to secure the bonds and notes and to provide for the rights of the bondholders;
(o) To assume or continue any contractual or other business relationships entered into by the municipalities or counties who are members of the district, including the rights to receive and acquire transferred rights under option to purchase agreements;
(p) To enter on any lands, waters, or premises for the purpose of making surveys, borings, soundings and examinations for the purposes of the district;
(q) To enter into any and all contracts, execute any and all instruments, and contracts with public agencies. Any public agencies may enter into contracts with the district;
(r) To do and perform any acts and things authorized by Sections 1 through 32 of this act under, through or by means of its officers, agents and employees, or by contracts with any person; and
(s) To do and perform any and all acts or things necessary, convenient or desirable for the purposes of the district, or to carry out any power expressly granted in Sections 1 through 32 of this act.
SECTION 14. The governing body of a member may exercise the power of eminent domain, upon written request of the board of commissioners, for the particular purpose of the acquisition of property for the district's storm water management system. The power of eminent domain shall be exercised as provided in Chapter 27, Title 11, Mississippi Code of 1972.
SECTION 15. The district may adopt and promulgate all reasonable rules and regulations regarding the specifications and standards relating to the planning, design, construction, operation, and maintenance of its storm water management system or any facility owned or operated by the district to comply with all federal and state environmental laws and regulations.
SECTION 16. (1) Any public agency may, in accordance with a duly adopted resolution, contract with the district for the district to acquire, construct or provide facilities and projects to be owned by the district for furnishing storm water management and related services to the public agency or to users within the boundaries of the public agency. The public agency shall be obligated to make payments which shall be sufficient to enable the district to meet its expenses, interest and principal payments (whether at maturity or upon sinking funds redemption) for its bonds, reserves for debt service, payments into funds for operation, maintenance and renewals and replacements, and the requirements of covenant with respect to debt service coverage contained in any resolution, trust indenture or other security agreement relating to its bonds. The contracts may also contain other terms and conditions as the district and the public agency may determine. Any contract may be for a term covering the life of the facilities or for any other term or for an indefinite period and may be made with or without consideration. The contract may provide that the amounts payable by the public agency are in lieu of all or any part of the rates, fees, tolls and charges which would otherwise be collected from the users of the facilities.
(2) Contracts may provide for payments in the form of contributions to defray the cost of any purpose set forth in the contracts and as advances for any facilities subject to repayment by the district. A public agency may make those contributions or advances from its general fund, general obligation bond proceeds, or surplus fund or from any monies legally available therefor.
(3) Subject to the terms of a contract referred to in this section, the district may do and perform any and all acts or things necessary, convenient or desirable to carry out the purposes of the contract, including the fixing, charging, collecting, maintaining and revising of rates, fees, tolls and charges for the services rendered by the facilities operated or maintained by the district, whether or not those facilities are owned by the district.
SECTION 17. Whenever a public agency enters into a contract as authorized by Sections 1 through 32 of this act, and the payments are to be made either wholly or partly from the revenues of the district's facilities, the duty is imposed on the public agency at the direction of the district to fix, establish and maintain, and from time to time adjust, the rates, fees, tolls and charges assessed by the public agency for the service of the facilities to the end that the revenues from the facilities, together with any ad valorem taxes levied for the payments, will be sufficient at all times to pay: (a) the expense of operating and maintaining the facilities; (b) all of the public agency's obligations to the district under the contract; and (c) all of the obligations under and in connection with any outstanding bonds issued to finance in whole or in part the facilities.
SECTION 18. The district may at the direction of the governing bodies of the participating units of local government submit a storm water management plan as required state or federal environmental rules and regulations. The district may also provide services and facilities for implementation of the storm water management plan.
SECTION 19. (1) The district may issue special improvement bonds or revenue bonds to provide funds for the purpose of planning, design, construction, operation, maintenance or improvement of the storm water management system or any project of the district, including acquisition of land, by resolution spread upon the minutes of the board. Special improvement bonds or revenue bonds may be issued from time to time without an election being held upon the question of their issuance unless the board of commissioners of the district is presented with a petition for an election upon the question of issuance signed by twenty percent (20%) or fifteen hundred (1500), whichever is the lesser, of the qualified electors residing within the district. The resolution authorizing any issue of bonds other than the initial issue shall be published in a manner similar to the publication of the resolution, as outlined in Section 5 of this act. If an election is required, it shall be held in substantial accord with the election outlined in Section 5 of this act. The cost of this election shall be borne by the district.
(2) Special improvement bonds shall be payable primarily from special assessments authorized in Section 27 of this act and, if provided in the proceedings authorizing the bonds, the avails of the ad valorem tax levy authorized in Section 26 of this act. In addition, if provided in the proceedings authorizing the bonds and agreed to by resolution of the governing body authorizing the board of commissioners to make that pledge, the bonds shall also be payable from the avails of the ad valorem tax levy provided for in subsection (2) of this section, or from any combination of monies from those special assessments and tax levies.
(3) Revenue bonds shall be payable from the rates, fees, tolls and charges authorized in Section 29 of this act.
(4) If provided in the proceedings authorizing the issuance of the bonds and agreed to by resolution of the governing body authorizing the board of commissioners of the district to make a pledge, then when there are insufficient revenues received from special assessments authorized under Section 29 of this act and the avails of the ad valorem tax levy authorized under Section 26 of this act, according to the provisions made in the proceedings authorizing the issuance of the bonds, to meet the interest or principal payments or both when due on any bonds issued under this act (excluding for this purpose any amounts in a reserve fund for those bonds), then, upon certification of that fact by the board of commissioners of the district to the governing body, the governing body shall levy an ad valorem tax on all taxable property within the geographical limits of the district. The avails of the tax, together with any other monies available for that purpose, shall be sufficient to provide for the payment of the principal of and interest on the bonds as the principal and interest falls due. If provided in the proceedings for the issuance of the bonds, the avails of the tax may also be used to replenish any reserve fund established for the bonds. SECTION 20. (1) All bonds issued under Section 19 of this act shall be lithographed or engraved and printed in two (2) or more colors to prevent counterfeiting. They shall be in denominations of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), and may be registered as issued, and shall be numbered in a regular series from one (1) upward. Each bond shall specify on its face the purpose for which it was issued, the total amount authorized to be issued, the interest on the bond, that it is payable to bearer and that the interest to accrue thereon is evidenced by proper coupons attached thereto.
(2) The bonds shall contain any covenants and provisions; shall be executed; shall be in any form, format, type, denomination or denominations; shall be payable as to principal and interest, at any place or places; and shall mature at any time or times, all as shall be determined by the board of commissioners and set forth in the resolution under which the bonds shall be issued. The date of maturity of the bonds shall not exceed twenty-five (25) years from the date of the bond.
(3) All bonds shall bear interest at a rate or rates not to exceed a greater net interest cost to maturity than that allowed in Section 75-17-103. No bond shall bear more than one (1) rate of interest. Each bond shall bear interest from its date to its stated maturity date at the interest rate specified in the bid. All bonds of the same maturity shall bear the same rate of interest. All interest accruing on the bonds so issued shall be payable semiannually, or annually, except that the first interest coupon attached to those bonds may be for any period not exceeding one (1) year. No interest payment shall be evidenced by more than one (1) coupon and supplemental coupons, cancelled coupons and zero interest coupons will not be permitted. No interest coupon shall vary more than twenty-five percent (25%) in interest rate from any other interest coupon in the same bond issue. The interest rate on any one (1) interest coupon shall not exceed that allowed in Section 75-17-103.
(4) The bonds shall be signed by the chairman and secretary-treasurer of the commission with the seal of the commission affixed thereto; however, the coupons may bear only the facsimile signatures of such chairman and secretary-treasurer.
(5) Any provisions of the general laws to the contrary notwithstanding, any bonds and interest coupons issued under Sections 1 through 32 of this act shall be securities within the meaning of Article 8 of the Uniform Commercial Code, being Section 75-8-101 et seq., Mississippi Code of 1972.
(6) Notwithstanding the foregoing provisions of this section, bonds referred to in this act may be issued under the supplemental powers and authorizations conferred by the provisions of the Registered Bond Act, being Sections 31-21-1 through 31-21-7.
SECTION 21. The bonds issued under Sections 1 through 32 of this act shall be sold upon sealed bids in the manner provided for in Section 31-19-25, Mississippi Code of 1972, in conformity with Sections 1 through 32 of this act. The bonds may be sold to the United States of America or an agency or instrumentality thereof at private sale.
Each interest rate specified in any bid must be in a multiple of one-tenth of one percent (1/10 of 1%) or in multiples of one-eighth of one percent (1/8 of 1%), and a zero rate of interest cannot be named. Any premium must be paid in bank funds as a part of the purchase price, and bids shall not contemplate the cancellation of any interest coupon or the waiver of interest or other concession by the bidder as a substitute for bank funds.
Any bonds issued under the provisions of Sections 1 through 32 of this act may be refunded in like manner as revenue bonds of municipalities shall be refunded.
Any bonds issued under Sections 1 through 32 of this act shall be submitted to validation under Sections 31-13-1 through 31-13-11, inclusive, Mississippi Code of 1972.
SECTION 22. (1) There is hereby created a statutory lien to the nature of a mortgage lien upon any facility or facilities acquired or constructed in accordance with Sections 1 through 32 of this act, including all extensions and improvements thereof or combinations thereof subsequently made, which lien shall be in favor of the holder or holders of any bonds issued under those sections. All such property shall remain subject to the statutory lien until the payment in full of the principal of and interest on the bonds. Any holder of the bonds or any of the coupons representing interest thereon may, either at law or in equity, by suit, action, mandamus or other proceedings, in any court of competent jurisdiction, protect and enforce the statutory lien and compel the performance of all duties required by Sections 1 through 32 of this act, including the making and collection of sufficient rates for the service or services, the proper accounting thereof, and the performance of any duties required by covenants with the holders of any bonds issued in accordance with this act.
(2) If any default is made in the payment of the principal of or interest on the bonds, any court having jurisdiction of the action may appoint a receiver to administer the district and the facility or facilities, with power to charge and collect rates sufficient to provide for the payment of all bonds and obligations outstanding against the district, and for payment of operating expenses. The receiver may apply the income and revenues of the district in conformity with Sections 1 through 32 of this act and any covenants with bondholders.
(3) No holder or holders of any bonds issued under Sections 1 through 32 of this act shall ever have the right to compel the levy of any tax to pay the bonds or the interest thereon except where the governing body of the county and/or municipality has made a levy of a special tax and consented to the pledge thereof, all as is provided in Sections 19 and 26 of this act.
SECTION 23. (1) In addition to the purposes authorized by Section 19 of this act, any district created under this act may issue special improvement bonds or revenue bonds of the district in the manner provided in Section 19, for any of the following purposes:
(a) To improve or extend the facilities of the district or to conduct projects of the district; and
(b) To enter into cooperative agreements with the state or federal government, or both, to obtain financial assistance in the form of loans or grants as may be available from the state or federal government, or both (reference to the state or federal government as used in this section shall specifically include any agency thereof).
(2) The district may make any covenants and do any acts and things as may be necessary, convenient and desirable to secure the bonds or make the bonds more marketable, notwithstanding that the covenants, acts or things may not be enumerated in this act or expressly authorized in this act. It is the intention of this act to give the board of commissioners, in issuing the special improvement bonds or revenue bonds, the power to do all things required or necessary in the issuance of those bonds and for their execution which are not inconsistent with the Mississippi Constitution of 1890.
SECTION 24. (1) Pending the issuance of special improvement bonds or revenue bonds by the district, the district may make temporary borrowings not to exceed two (2) years in anticipation of the issue of bonds in order to provide funds in any amounts as may, from time to time, be deemed advisable before the issue of bonds. To provide for the temporary borrowings, the district may enter into any purchase, loan or credit agreement, or agreements or other agreement or agreements with any banks or trust companies or other lending institutions, investment banking firms or persons in the United States having power to enter into the same. The agreements may contain any provisions not inconsistent with Sections 1 through 32 of this act as may be authorized by the board.
(2) All temporary borrowings made under this section shall be evidenced by notes of the district which shall be issued, from time to time, for any amounts, in any form and in any denominations and subject to terms and conditions of sale and issue, prepayment or redemption and maturity, rate or rates of interest and time of payment of interest as the board shall authorize and direct and in accordance with Sections 1 through 32 of this act. The authorization and direction may provide for the subsequent issuance of replacement notes to refund, upon issuance thereof, any notes, and may specify any other terms and conditions with respect to the notes and replacement notes thereby authorized for issuance as the board may determine and direct.
SECTION 25. (1) For the purpose of attaining the objectives of Sections 1 through 32 of this act, any county, municipality or other unit of local government, public corporation, agency or instrumentality of the state, a county or municipality may, upon any terms and with or without consideration, as it may determine, do any or all of the following:
(a) Lend, contribute, or donate money to any district or perform services for the benefit thereof;
(b) Donate, sell, convey, transfer, lease or grant to any district, without the necessity of authorization at any election of qualified voters, any property of any kind; and
(c) Do any and all things, whether or not specifically authorized in this section, not otherwise prohibited by law, that are necessary or convenient to aid and cooperate with any district in attaining the objectives of Sections 1 through 32 of this act.
(2) Any county, municipality or other political subdivision, public corporation, agency or instrumentality of the state, a county or municipality may enter into a contract or contracts obligating any district to manage its storm water in a storm water management system or at a facility or facilities owned or operated by the district and obligating the county, municipality or other political subdivision, public corporation, agency or instrumentality of the state, a county or municipality to make payments to the district for the management on any terms, provisions and conditions as deemed appropriate. Any costs to a county, municipality or other political subdivision, public corporation, agency or instrumentality of the state, a county or municipality shall be paid annually out of funds of the county, municipality or other political subdivision, public corporation, agency or instrumentality of the state or any county or municipality. The entering into of a contract or contracts shall not constitute the incurring of a debt by the county, municipality or other unit of local government, public corporation, agency or instrumentality of the state or any county or municipality within the meaning of any constitutional or statutory limitations on debts of the state, the counties or the municipalities.
SECTION 26. (1) The governing body of a county or municipality in which a district exists, may, according to the terms of the resolution and upon receipt of a resolution of the board of commissioners adopted by a three-fifths (3/5) majority of that board requesting the funds, levy a special tax, not to exceed four (4) mills annually, on all taxable real property in the district. The avails of the tax shall be paid over to the board of commissioners of the district to be used either for (a) the support of the district; (b) planning, design, construction, operation, maintenance or improvement of the storm water management system of the district; or (c) the retirement of any special improvement bonds issued by the district; or (d) for any combination of those uses.
(2) The proceeds derived from two (2) mills of the levy authorized in this section shall be included in the ten percent (10%) increase limitation under Section 27-39-321, and the proceeds derived from any additional millage levied under this subsection in excess of two (2) mills shall be excluded from that limitation for the first year of the additional levy and shall be included within that limitation in any year thereafter.
(3) Following the initial tax levy, the special tax levy under this subsection may be increased only when the governing body, after receipt of the resolution of the board of commissioners requesting an increase and stating the proposed amount of the increase and the purposes for which the additional revenues shall be used, has determined the need for additional revenues, adopts a resolution declaring its intention to increase the levy and has held an election on the question of increasing the tax levy prescribed in this section. The notice calling for an election shall state the purposes for which the additional revenues shall be used and the amount of the tax levy to be imposed for those purposes. The tax levy may be increased only if the proposed increase is approved by a three-fifths (3/5) majority of those voting within the district. Subject to specific provisions of this paragraph to the contrary, the publication of notice and manner of holding the election within the district shall be as prescribed by law for the holding of elections for the issuance of bonds by the governing body. The election shall be held only within the district.
SECTION 27. In addition to the sources of funding provided for in Sections 1 through 32 of this act, the board of commissioners, if approved by the governing body in the resolution creating the district, may levy and collect special assessments as provided in Section 27 of this act on certain property located in the district to provide funds for the purposes for which special improvement bonds may be issued under Sections 19 and 23 of this act. The board of commissioners may pledge the receipts from the special assessments to secure the payment of the principal of, premium, if any, and interest on any special improvement bonds authorized to be issued under this act. Special assessments may be levied on the property within the boundaries of the district at the time the county and/or municipal tax levies are made. Any special assessments authorized under this section shall be levied and collected in the manner provided in Sections 21-41-1 through 21-41-53, Mississippi Code of 1972. The board may secure bonds of the district solely from the receipts of special assessments, or may pledge any revenues in addition to the pledge of revenue from any tax levy authorized in this act, or from any combination of monies from the special assessments and tax levies. Bonds issued under Section 19 or Section 23 of this act shall be payable as to principal, premium, if any, and interest solely from the sources authorized in this act.
SECTION 28. (1) Funds for debt service for special improvement bonds may be provided by charges upon the properties benefited according to procedures set forth in this section.
(2) So long as any special improvement bonds authorized by Sections 1 through 32 of this act shall remain outstanding, it is the duty of the governing body, at the time annual county or municipal tax levies are made, as the case may be, to levy those assessments as are certified to them by the district as being due and payable at a stated time. It is the duty of the tax collector of the county and/or the municipal tax collector in which the district lies to collect those charges and pay the funds collected to the board of commissioners of the district for payment to interest and principal and to the retirement of bonds issued by the district in accord with the maturities schedule pertaining thereto.
(3) One of the following procedures may be utilized in providing funds as authorized by this section:
(a) (i) Funds for debt service may be provided by charges assessed against the property abutting the street, easement or other right-of-way on which a facility or facilities of the district are constructed according to the frontage of the property.
(ii) The board of commissioners of the district, after giving notice and hearing protests in the manner prescribed by Sections 21-41-5 and 21-41-7, Mississippi Code of 1972, shall by resolution spread upon its minutes define the services to be offered and the entire area to be benefited by each improvement. Each improvement may be designated as a project, or all improvements may be designated as one (1) project.
(iii) If a majority of the property owners or the owners of more than a majority of the front footage of the property involved and actually residing on property owned by them and included within that part of any street, avenue, etc., ordered to be specially improved, or otherwise actually occupying property owned by them and included within that area designated for a project, shall file a protest, then the improvement shall not be made and the assessment shall not be made.
(iv) The resolution shall direct that the cost to be assessed against each lot or parcel of land shall be determined by dividing the entire assessable cost of the project by the total number of front feet fronting on the street, easement or other right-of-way in which all of the facilities embraced within the project are installed and multiplying the quotient by the total number of front feet in any particular lot or parcel of land fronting on the street, easement or other right-of-way in which facilities are constructed. The result thereof shall be delivered by board to the governing body of the county and/or municipality as the amount of special tax to be assessed against each lot or piece of ground for the owner's part of the total cost of the improvements.
(v) The resolution may, at the discretion of the board, provide for the district to pay the assessment against any property abutting a facility or facilities designated as necessary and essential to the overall operation of the storm water management system. The district shall seek to recover the assessment from the owner of the improved property.
(b) (i) Funds for debt service may be provided by charges assessed against a lot or block in a recorded subdivision of land or by other appropriately designated parcel or tract of land in accord with the following procedure.
(ii) The board of commissioners of the district, after giving notice and hearing protests in the manner prescribed by Sections 21-41-5 and 21-41-7, Mississippi Code of 1972, shall by resolution spread upon its minutes define the services to be offered and the entire area to be benefited by each improvement. Each improvement may be designated as a project, or all improvements may be designated as one (1) project.
(iii) If a majority of the property owners or the owners of more than a majority of the front footage of the property involved and actually residing on property owned by them and included within that part of any street, avenue, etc., ordered to be specially improved, or otherwise actually occupying property owned by them and included within that area designated as a project, shall file a protest, then the improvement shall not be made and the assessment shall not be made.
(iv) Charges shall be assessed in accord with the provisions of Sections 21-41-9 through 21-41-21 and 21-41-25 through 21-41-39, Mississippi Code of 1972.
SECTION 29. (1) The board of commissioners of the district issuing revenue bonds under Sections 1 through 32 of this act, shall prescribe and collect reasonable rates, fees, tolls or charges for the services, facilities and commodities of its storm water management system. The board shall prescribe penalties for the nonpayment of those rates, fees, tolls or charges. The board shall revise the rates, fees, tolls or charges from time to time whenever necessary to insure the economic operation of the storm water management system. The rates, fees, tolls or charges prescribed shall be, as nearly as possible, sufficient to produce revenue at least sufficient to: (a) provide for all expenses of operation and maintenance of the storm water management system, including reserves therefor; (b) pay, when due, all revenue bonds and interest thereon for the payment of which the revenues are or shall have been pledged, charged or otherwise encumbered, including reserves therefor; and (c) provide funds for reasonable expansions, extensions and improvements of service.
(2) (a) Any district created under Sections 1 through 32 of this act may create a system for the billing and collection of rates, fees, tolls and charges for the services of the storm water management system. Storm water fees may be based on the amount of impervious area or any other factor determined appropriate by the board of commissioners.
(b) Storm water fees, upon certification by the board to the governing body of the county and/or municipality, may be assessed on any utility bill distributed by that county or municipality. The board of commissioners shall establish a process of notice and hearing consistent with the due process protections in the Mississippi Constitution and the Constitution of the United States for any person aggrieved by the levy of a rate, fee, toll or charge made under this section. The board of commissioners shall pay the reasonable costs incurred in collecting the storm water fees.
(c) If the storm water fees are assessed as part of a county or municipal utility bill, any payment received toward that bill shall be divided among the services for which charges are assessed on a pro rata basis. Before the fifteenth day of each month, the entity collecting payments from utility bills shall pay to the board of commissioners the revenue collected from utility bill payments during the preceding month.
SECTION 30. The property and revenue of the district shall be exempt from all state, county and municipal taxation. Bonds issued under Sections 1 through 32 of this act and the income therefrom shall be exempt from all state, county and municipal taxation, except inheritance, transfer and estate taxes. It may be so stated on the face of the bonds.
SECTION 31. Within ninety (90) days after the close of each fiscal year, the board of commissioners shall publish in a newspaper of general circulation in the county a sworn statement showing the financial condition of the district, the earnings for the fiscal year just ended, a statement of any rates, fees, tolls or charges being charged, and a brief statement of the method used in arriving at those rates, fees, tolls or charges. The statement shall also be filed with the governing body of each member of the district.
SECTION 32. Sections 1 through 32 of this act, without reference to any other statute, shall be deemed to be full and complete authority for the creation of a district and for the issuance of any bond. No proceedings shall be required for the creation of a district or for the issuance of any bonds other than those provided for and required herein. All the necessary powers to be exercised by the governing body of a county or municipality and by the board of commissioners of any district, in order to carry out this act, are hereby conferred.
SECTION 33. The provisions of this act shall be codified as a new chapter in Title 51, Mississippi Code of 1972.
SECTION 34. The Attorney General of the State of Mississippi shall submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.
SECTION 35. This act shall take effect and be in force from and after it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.