§ 25-20-403 - Creation. - Arkansas Statutes

25-20-403. Creation.

(a) (1) The governing bodies of any two (2) or more municipal electric utilities entering into an interlocal agreement under the Interlocal Cooperation Act, 25-20-101 et seq., are authorized to create an authority as a separate legal entity for the purposes set forth in this subchapter.

(2) For the purposes of this section, a rural electric cooperative corporation that is not a member of a generation or transmission cooperative or a municipal electric utility system in another state may join in the formation of an authority.

(b) An authority created under this subchapter shall be referenced as an Arkansas Municipal Electric Utility Consolidated Authority # 1, #2, #3, and so forth as determined by the Secretary of State.

(c) (1) The governing body of a municipal electric utility wishing to create an authority under this subchapter shall approve by ordinance or resolution or otherwise pursuant to law an interlocal agreement specifying the matters set forth in 25-20-104.

(2) An application shall be filed with the Secretary of State.

(3) Review by the Secretary of State as contemplated by this section shall be in addition to those filings required by 25-20-104(f) and 25-20-105(a).

(d) An interlocal agreement shall:

(1) Specify any limitations on the exercise of the authority's powers, including such matters, if any, as to which the governing bodies of the municipal electric utilities reserve rights to approve, disapprove, or otherwise participate in any exercise of the authority's powers;

(2) Provide for reasonable payments in lieu of taxes or other payments by the authority to the participating governing bodies of the municipal electric utilities, as the governing bodies may deem appropriate;

(3) Specify the:

(A) Number of commissioners of the authority;

(B) Terms of office of the commissioners;

(C) Manner of appointing or electing the commissioners;

(D) Residency requirements applicable to commissioners; and

(E) Voting rights of each commissioner. The voting rights may vary by commissioner; and

(4) Set forth other matters not inconsistent with this subchapter with respect to the creation and operation of the authority as the governing bodies of the municipal electric utilities may deem necessary or appropriate.

(e) (1) An application to create an authority under this subchapter shall then be prepared, setting forth:

(A) A request that an authority be created under this subchapter;

(B) The proposed name for the authority;

(C) The names of the participating governing bodies of municipal electric utilities;

(D) The number of commissioners of the authority;

(E) The manner in which commissioners of the authority will be appointed or elected and the residency requirements applicable to commissioners;

(F) The voting rights of each commissioner;

(G) Special procedures for amending the certificate of incorporation, if any; and

(H) Other matters not inconsistent with this subchapter with respect to the creation and operation of the authority as the governing bodies of the municipal electric utilities may deem necessary or appropriate.

(2) The application shall be signed on behalf of each governing body of municipal electric utilities by an authorized official thereof.

(f) (1) In addition to the filing requirements contained in 25-20-104(f) and 25-20-105(a), the Secretary of State shall examine the application and, if the Secretary of State finds that the name proposed for the authority is not identical with that of any other corporation, agency, or instrumentality of the State of Arkansas, 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 the application 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 of Arkansas setting forth the name of the authority and the names of the participating municipal electric utilities; 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 authority and shall be conclusive proof of the filing and contents of the certificate and the effective creation of the authority, absent fraud in the premises being established.

(g) (1) Any certificate of incorporation issued by the Secretary of State under this subchapter may be amended from time to time:

(A) In the manner provided in the certificate of incorporation then existing; or

(B) If the certificate of incorporation does not specify a procedure for its amendment, with the consent of a majority of the commissioners of the authority who are entitled to vote.

(2) (A) The amendment shall be signed by an officer or other authorized person of the authority who shall certify that the certificate of incorporation has been 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 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.