SENATE, No. 2308

The Commonwealth of Massachusetts

In the Year Two Thousand and Seven.

AN ACT ESTABLISHING THE NORTH CARVER WATER DISTRICT

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1.   As used in this act, the following words shall, unless the context otherwise requires, have the following meanings:

"Bonds" or "bond", general obligation bonds, notes and other obligations or evidences of indebtedness that the town has authorized or issued to finance the acquisition of and any water system improvements within the district service to be operated and managed by the district prior to the approval of this act, or that the town may authorize and issue from time to time following the approval of this act, upon a two- thirds vote, to pay capital costs of the district, which shall be issued for a term not exceeding 40 years, and which shall otherwise be issued in accordance with the provisions of chapter 44 of the General Laws. "Bonds" or "bond" shall also include any general obligation bonds, notes or other obligations of the district that may be issued for >capital costs of the district, including land acquisition, within the district service area pursuant to this act. Any bonds issued in accordance with this act shall be arranged so that for each issue the amounts payable in the several years for principal and interest combined shall be as nearly equal as practicable in the opinion of the officers authorized to issue said bonds or, in the alternative, in accordance with a schedule providing a more rapid amortization of principal. Notwithstanding any general or special law to the contrary, the district may issue bonds only in the event that bonds of the district must be issued to the rural development administration or to any other similar

federal program, to qualify for federal grants, loans or any other financial assistance with respect to the development of the district's facilities. Any bonds issued by the district shall not be included in any debt or other limitation contained in any general or special law. In the event that the district determines to issue bonds in accordance with this act, the bonds of the district shall be authorized upon a two-thirds vote of the commission, with the approval of a two-thirds vote of the town. Any indebtedness of the district issued in accordance with this act which shall not have been paid by the district as the same shall have become due and payable, shall constitute a pledge of the full faith and credit of the town and a debt of the town within the meaning of section 23 of chapter 59 of the General Laws. Any indebtedness of the district issued pursuant to this act shall be signed by a majority of the commission and acknowledged by the signatures of the treasurer and a majority of the selectmen of the town.

"Commission", the commissioners of the North Carver Water District established herein or, if the commission shall terminate, the board, body or commission

succeeding to the principal functions thereof, or whatever body, person or persons to whom the powers given by this chapter to the commission shall be transferred by law.

"Capital costs", any extension, improvement or enlargement of the water works system of the district or to any other project of the district financed under the

provisions of this chapter; all or any part of the cost of acquisition, construction, reconstruction, alteration, and remodeling of such works, including, without limiting the generality of the foregoing, costs of labor, materials, machinery and equipment, the acquisition of interests in land, structures, and all rights of any kind in real and personal property, costs of demolition or relocation., costs of removal or relocation of any public utilities facilities, financing charges and expenses, interest prior to, during and for a period not exceeding 6 months after completion of such work, reserves for debt service and other capital and current expenses, costs of architectural, engineering, financial, legal and consulting services, costs of plans, specifications, appraisals, surveys, inspections, financial and feasibility studies, expenses of organization, administration and operations prior to the commencement of and during such work, costs of equipment and supplies and advance training of operating personnel and other expenses of completing and commencing operation of such work, working capital, and

other necessary or incidental expenses to the acquisition, construction, financing and placing in operation of such work.

"Current expenses", the district's current expenses, whether or not annually recurring, of maintaining, repairing and operating the water works system and any other properties of the district, including, without limiting the generality of the foregoing, administrative, debt service on bonds, debt service on account of bonds of the district that were paid by the town on account of the failure of the district to make such payments as the same shall have become due and payable, general system payments and other employee benefits, engineering expenses for maintenance, operation and repairs, legal, financial and auditing expenses, insurance and surety bond premiums, fees and expenses of trustees and paying agents, payments to others for services rendered to the district, taxes or fees which may be lawfully imposed upon the district or its income or operations or the property under its control, and other current expenses required or

permitted by law to be paid by the district, including the funding of reasonable reserves for maintenance, repair, replacements or operations.

"District", the North Carver Water District as established herein.

"Local appointing authority", the board of selectmen of the town of Carver .

"Municipality" or "town", the town of Carver , Massachusetts .

"District service area", the area exclusively within the town of Carver as shown on the map of the district on file in the town clerk's office as may be amended by a majority vote of the commission, a majority vote of the local appointing authority, and a majority vote of the town.

"Revenues", all revenues, rates, fees, charges, rents and other receipts derived from the operation of the water works system and all other properties of the district, including, without limiting the generality of the foregoing, proceeds of bonds, proceeds of any grant or loan to the district, investment earnings and the proceeds of insurance, condemnation, sale or other disposition of properties.

"Water works system", the water supply and distribution system in the district service area and under the jurisdiction, ownership, control and regulation of the district including, without limiting the generality of the foregoing, all plants, works, instrumentalities or parts thereof, lands, easements, rights in land, water and flowage rights, approaches, water courses, rights of way, contract rights, franchises and privileges, all connections, dams, wells, reservoirs, water mains and pipe lines, equipment, buildings, structures, vehicles, standpipes, tanks, conduits, meters, hydrants, fire connections, fixtures, purification, filtration and treatment works and other adjuncts thereto, and any other property or interests in property, real or personal, incidental to and included in such water supply and distribution system, and all facilities, betterment, extensions, improvements and enlargements thereto and to or for the water supply therefore hereafter constructed or acquired.

SECTION 2. There is hereby created the North Carver Water District. The commission is hereby constituted and the exercise by the commission of the powers conferred by this chapter shall be deemed and held to be the performance of an essential public function. The commission shall not be subject to the supervision of the municipality or of any department, commission, board, bureau or agency of the municipality except to the extent and in the manner provided in this chapter.

Except as otherwise provided in this chapter, the powers of the commission shall be exercised by a board of  3 members to be elected by the voters of the town for overlapping 3 year terms. Vacancies shall be filled in accordance with section 11 of chapter 41 of the General Laws; provided, however, that at the first annual election occurring at least 64 days after the effective date of this act, the initial members of the commission shall be elected to 1, 2 and 3 year terms, with the candidate receiving the highest number of votes to serve for a 3 year term, the candidate with the second highest number of votes a  2 year term, and the candidate with the third highest number of votes serving for a 1 year term. Until the initial members of the commission are elected in accordance with this paragraph, the board of selectmen shall appoint 3 members, each of whom shall be registered voters of the town.  Two members of the commission shall constitute a quorum and the affirmative vote of 2 members shall be necessary for any action taken by vote of the commission. Any such action shall take effect immediately unless otherwise provided and need not be published or posted.

The commission shall annually elect one of its members chair. The commission may establish, with the approval of the local appointing authority and the town, by majority vote of its town meeting, a reasonable annual compensation for its members for attendance upon the business of the commission. In addition, each member may be reimbursed for all reasonable and necessary expenses incurred in the discharge of official duties as approved by the commission. In accordance with chapter 268A, the commission shall be deemed to be a municipal agency and the members of the commission shall be deemed to be special municipal employees.

The provisions of sections 23A to 23C, inclusive, of chapter 39 shall apply to all meetings of the commission and section 10 of chapter 66 relating to the availability of public records as defined in clause twenty-sixth of section 7 of chapter 4 shall apply to the commission.

The district shall be deemed to be a public employer within the meaning of chapter 258. The members, officers and employees of the district shall be deemed to be public employees within the meaning of chapter 258.  The district shall be liable in tort for defects in a public way to the same extent as the municipality under chapter 84.

The district commissioners and its employees shall be subject to the provisions of chapter 150E, to the extent said provisions are applicable, and for purposes of said chapter, the district shall be considered an "employer" or "public employer" as defined therein.

SECTION 3. The commission may appoint, employ and determine the compensation, duties and conditions of employment of a superintendent, who shall not be a member of the commission and who shall serve at the pleasure of the commission; provided, however, that the commission may bind itself by contract to employ a superintendent, but no such contract may be for a period of more than 5 years. Said contract must be approved by the local appointing authority. The superintendent shall be the chief operating officer of the district and shall administer and direct its affairs as authorized or approved by the commission and shall have such of the powers and perform such of the duties of the commission as the commission may from time to time have delegated to the superintendent and not recalled. The superintendent or his or her designee as approved by the commission shall be the secretary of the commission and shall keep a record of the proceedings of the commission and shall be custodian of all books, and documents and papers filed with the district. The superintendent and any other officer

designated by the commission for this purpose, each alone, may cause copies to be made of all minutes and other records and documents of the district and may give certificates to the effect that such copies are true copies, and all persons dealing with the district may rely upon such certificates.

The commission may from time to time hire, transfer or otherwise appoint or employ legal counsel, financial advisors and such other experts, engineers, agents, accountants, clerks, and other consultants and employees as it deems necessary and determine their duties.

The commission may purchase insurance on behalf of itself and any of its members, officers, employees, or agents against any liability arising out of their status as such, whether or not the commission would have the power to indemnify them against such liability.

The commission shall operate on a fiscal year commencing July 1st unless otherwise provided by the commission.

SECTION 4. The commission shall have all the rights and powers necessary or convenient to carry out and effectuate this act, including, but without limiting the

generality of the foregoing, the rights and powers:

(a) to adopt rules, regulations, and procedures in connection with the performance of its functions and duties, and regarding the use of, and connection to, the water works system. The commission may, by regulation, provide for civil penalties not to exceed $5,000 for the violation of any rule, order, or regulation of the commission, which penalties shall inure to the town. The commission may further assess fines for each violation of its rules and regulations in accordance with section 21 of chapter 40 of the General Laws;

(b) to maintain an office in the town at such place or places as it may determine;

(c) on behalf of the district, or on behalf of the town upon the approval of the local appointing authority, to apply for, receive, accept, administer, expend and comply with  the conditions, obligations and requirements respecting any grant, gift, loan, including without limitation any grant, gift or loan from agencies of local, state and federal governments, donation or appropriation of any property or money in aid of the purposes of the commission and to accept contributions of money, property, labor or other things of value;

(d) to acquire in the name of the district, or on behalf of the town with the approval of the local appointing authority, by purchase, lease, lease-purchase, sale and leaseback, gift or devise, or to obtain options for the acquisition of, any property, real or personal, tangible or intangible, or any interest therein, in the exercise of its powers and the performance of its duties;

(e) with the approval of the local appointing authority, to acquire, sell, lease, mortgage, exchange, transfer or otherwise dispose of, or to grant options for any such purposes with respect to, any property held by it, including real or personal, tangible or intangible property, or any interest therein, consistent with all requirements of the General Laws; provided, however, that no lease, mortgage, exchange, transfer or other disposal of real property shall be permitted without the affirmative vote of the town at a duly called and held town meeting to consider the same;

(f) to enter onto any land within the district service area to make surveys, borings, soundings and examinations thereon, provided that the commission shall make

reimbursements for any injury or actual damage resulting to such lands and premises or caused by any act of its authorized agents or employees and shall, so far as possible, restore the land to the same condition as prior to making of such surveys, borings, soundings and examinations; and to acquire by eminent domain any interest in real property within the district service area in the name of the commission in accordance with the provisions of chapters 79 and 80A of the General Laws or any alternative method provided by law; provided, however, that the commission shall not exercise the power of eminent domain without the prior approval of the town and the local appointing authority. The commission may order the removal or relocation of any conduits, pipes, wires, poles or other property located in public ways or places or in or upon private lands, which it deems to interfere with the laying out, construction or operation of any water system project, and the proper authorities shall grant new locations for any such structure so removed or relocated, and the owner thereof shall be compensated by the commission for the reasonable costs of such removal or relocation. Such orders, to the extent specified therein, shall be deemed a revocation of the right or license to maintain such tracks, pipes, conduits, wires, poles or other property in such public ways or places, and the private owner of any such structures in public ways or lands shall comply with any such order of the commission relating to any such structure in public ways or lands. If any such owner shall fail to comply with any such order of the commission relating to any such structure in public ways and places within a reasonable time, to be fixed in the order, the commission may discontinue and remove such tracks, conduits, pipes, wires, poles or other property, and may relocate the same, and the cost of such discontinuance, removal or relocation shall be repaid to the commission by the owner. No such discontinuance, removal or relocation shall entitle the owner of the property thus affected to any damages on account thereof, except for reimbursement of cost provided for above. This section shall not apply to facilities on property of the commonwealth under the control of the department of highways or the department of conservation and recreation or installed under licenses or permits granted by said department or commission, except with its approval;

(g) to contract for and purchase water supply, treatment and distribution services from, and to provide such services to, any person, private or public corporation or public instrumentality within or without the district service area or to another town, as the commission shall determine to be in the best interests of the district, to the commonwealth or to the federal government when necessary or convenient for the operation of the water system;

(h) to construct, improve, extend, enlarge, maintain and repair the water works system and to occupy and operate, extend, enlarge, maintain and repair any portion of the waterworks system owned by the town, upon such terms and conditions as the commission and the local appointing authority shall determine;

(i) to use monies borrowed or appropriated by the town for the purposes of this act;

(j) to make contracts of every name and nature and to execute and deliver all instruments necessary or convenient for carrying out any of its purposes, provided, however, that such contracts shall be subject to all applicable provisions of chapter 30B of the General Laws;

(k) to exercise the powers and privileges of, and to be subject to limitations upon towns and cities provided by the provisions of sections 1 to 24, inclusive, and 27 to 29 inclusive, of chapter 83 of the General Laws, insofar as such provisions may be applicable and are consistent with the provisions of this act;

(I) to create an overall water policy and plan for the district;

(m) to do all things necessary, convenient or desirable for carrying out the purposes of this act or the powers expressly granted or necessarily implied in this act;

(n) consistent with the constitution and laws of the commonwealth., the commission shall have such other powers as may be necessary for or incident to carrying out the foregoing powers and the accomplishment of the purposes of this act; provided, however, that nothing in this act shall impose any duty on the commission to maintain groundwater levels within or without the boundaries of the town;

(o) The commission is hereby authorized to enter into one or more intermunicipal agreements with governmental entities other than the town, for the provision of water services.  Such intermunicipal agreements shall comply with the requirements of section  4A of chapter 40, except that no further vote of the Carver town meeting shall be required with respect to such intermunicipal agreements.

SECTION 5. In addition to the powers of the commission otherwise provided herein, the commission shall have the following powers and shall be subject to the following limitations:

(a) The commission is authorized and empowered to fix, revise, charge, collect and abate fees, rates, rents, assessments, delinquency charges and other charges for water supply and distribution and other services, facilities and commodities furnished or supplied by it. Subject to paragraph (c), fees, rates, rents, assessments, delinquency charges and other charges of general application shall be adopted and, as necessary, revised by the commission at least annually in accordance with procedures to be established by the commission for assuring that interested persons are afforded notice and an opportunity to present data, views and arguments. The commission shall hold at least one public hearing on its schedule of fees, rates and charges or any revision thereof prior to adoption, notice of which shall be delivered to the local appointing authority and be published in a newspaper of general circulation in the town in advance of the hearing. No later than the date of such hearing, the commission shall make available to the public the proposed schedule of fees, rates and charges. The commission may combine its fees, rates and other charges for services provided by it in a single schedule of charges. Fees, rates, rents, assessments, abatements, and other

charges established by the commission shall not be subject to supervision or regulation by any department, division, commission, board, bureau, or agency of the commonwealth or any of its political subdivisions.

(b) Subject to paragraph (e), the fees, rates, rents, assessments and other charges established by the commission in accordance with paragraph (a) shall be so fixed and adjusted in respect to the aggregate thereof so as to provide revenues at least sufficient (i) to pay the current expenses of the commission, (ii) to pay the principal of, premium, if any, and interest on bonds for costs as the same become due and payable, (iii) to create and maintain such reasonable reserves as may be reasonably required by the commission or by any trust agreement or resolution securing bonds issued by the town on account of capital costs, (iv) to provide funds for paying the costs of all necessary repairs, replacements and renewals of the water system and (v) to pay or provide for any amounts which the commission may be obligated to pay or provide for by law or contract including any resolution or contract with or for the benefit of the holders of bonds issued for the commission. The annual operating budget of the commission shall be submitted to the local appointing authority for review and recommendation, and all

funds expended by the commission shall be subject to appropriation by the town. Once an appropriation on account of the district has been approved by the town, the commission may allocate the use of such amounts as they shall, in their sole discretion, determine.

(c) The commission shall undertake a study and examination of its estimated expenses and costs of constructing, maintaining, operating and improving the system, and shall, prior to one year after the effective date of this act, promulgate in accordance with paragraph (a) a schedule of fees, rents, rates and other charges sufficient thereafter to satisfy the requirements of paragraph (b). Such schedule shall become effective upon promulgation. Such schedule shall provide for the metering, monitoring and other measuring of, and charging for, water supply services provided by the commission to consumers of such services in the town., including municipal property, the commonwealth and all independent agencies and authorities of the town and the commonwealth, and any exemptions from such charges provided to the commonwealth or the town under any general or special law, are hereby declared inapplicable as of the date such schedule shall be in force; provided, however, that no betterment or special assessment shall be made by the commission under the authority of chapters 40 or 80 of the General Laws or any other provision of law against property owned by the commonwealth or any political subdivision of the commonwealth.

(d) The commission shall have the benefit, without further acceptance of any sections of said chapter 80, to the extent applicable and consistent with this act. Applications for abatements in accordance with said chapter 80 shall be made within 30 days after the date of such demand. Upon written application, the commission shall issue lien certificates in accordance with section 23 of chapter 60 of the General Laws.  No recordation of certificates issued by the town pursuant to said section 23 of said chapter 60 shall affect liens for the unpaid fees, rates, rents, assessments, and other charges of the commission. In lieu of betterments, the commission may also make special assessments under section 42G of chapter 40 of the General Laws, to specific properties.

(e) The town is hereby authorized to establish an Enterprise Fund in accordance with the provisions of section 53 F1/2 of chapter 44 of the General Laws for the operation of the water supply system. All revenues of the district, including all amounts appropriated by the town on account of the district, shall be held in the care and custody of the treasurer of the town and shall be disbursed only upon the approval and execution of a warrant by the local appointing authority.

(f) Any water supply system, as defined in section 3, shall be subject to the rules and regulations of the town, applicable laws of the commonwealth and any approvals required thereunder.

(g) The activities of the commission shall be consistent with the official planning documents adopted from time to time by the town boards and commissions.

(h)The commission shall not be required to connect any home, facility or lot to the water supply system.

SECTION 6. Insofar as the provisions of this act are inconsistent with the provisions of any general or special law, administrative order or regulation, or law of the town other than rules and regulations of the board of health, the provisions of this act shall be controlling.

SECTION 7. This act, being necessary for the welfare of the town and its inhabitants, shall be liberally construed to effect its purposes.

SECTION 8. This act shall be construed in all respects so as to meet all constitutional requirements. In carrying out the purposes and provisions of this act, all steps shall be taken which are necessary to meet constitutional requirements whether or not such steps are required by statute.

SECTION 9. Notwithstanding the provisions of section 13 of chapter 80 of the General Laws, or the provisions of any other general or special law to the contrary, any assessments on account of a betterment project of the district may be apportioned into such number of equal portions, not exceeding 40, as may be determined by the district.
 

SECTION 10. This act shall take effect upon its passage.