Section 42.45.310. Acquisition of power project.

   (a) Two or more public utilities that purchase power from a power project acquired or constructed as part of the former energy program for Alaska and owned by the Alaska Energy Authority under AS 44.83.396 may form a joint action agency under AS 42.45.300 and under this section to purchase the power project from the Alaska Energy Authority if the purchase and sale of the project has first been authorized by law.
   (b) The agency may
        (1) acquire, own, operate, and manage one or more power projects or generating or transmission facilities; and
        (2) participate in the design, development, construction, operation, and maintenance of a generating or transmission facility.
   (c) The agency is a body corporate and politic and an instrumentality of the public utilities that form the agency, but has a separate and independent legal existence from the public utilities. A debt, obligation, or liability of the agency does not constitute a debt, obligation, or liability of a public utility or the state. A liability incurred by the agency shall be satisfied exclusively from the assets or revenue of the agency, and a creditor of the agency or any other person does not have any right of action or claim against a public utility or the state, because of a debt, obligation, or liability of the agency. The agency has the powers of a public utility under AS 42.05 and the immunities of a public utility. In addition to the powers granted to the agency under AS 42.45.300 and this section, the agency has the power
        (1) to adopt bylaws of the agency;
        (2) to sue and be sued;
        (3) to carry out the authorized purposes of the agency;
        (4) subject to (e) of this section, to issue revenue bonds and other obligations that are not obligations of either the state or the public utilities that are parties to the agency agreement to provide financing to carry out the authorized purposes of the agency;
        (5) in addition to the powers of eminent domain in AS 42.05.631, to exercise the powers of eminent domain and a declaration of taking to acquire land or materials within the boundaries of the power project purchased by the agency from the Alaska Energy Authority under the procedures set out in AS 09.55.240 - 09.55.460 to carry out the authorized purposes of a joint action agency; and
        (6) to use facilities, projects, and related assets owned, leased, or operated by the joint action agency as security in accordance with applicable law.
   (d) The agency is created by a written agreement among the public utilities forming the agency. Each public utility forming the agency shall adopt the terms of the agreement by ordinance or resolution. After the public utilities that are parties to the agency agreement adopt and execute the agreement, the board of directors of the agency shall file the agency agreement with the Department of Commerce, Community, and Economic Development. Subject to (c) of this section, the agency agreement may define the powers, functions, and activities of the agency and specify the means by which they shall be performed. The agency agreement may establish the rights and responsibilities of the public utilities that form the agency. If applicable, the agency agreement must provide for
        (1) apportionment between the public utilities that are parties to the agency agreement of responsibility for expenses incurred in the performance of the functions or activities;
        (2) apportionment of fees or other revenue derived from the functions or activities and the manner in which the revenue shall be accounted for;
        (3) the transfer of personnel and the preservation of employment benefits; and
        (4) the rights of the public utilities that are parties to the agency agreement to terminate the agreement, subject to (e) of this section, including resolving disputes if the public utilities are unable, upon termination of the agency agreement, to agree on the transfer of personnel or the division of assets and liabilities between the parties to the agreement.
   (e) The public utilities that are parties to the agency agreement shall pledge and agree with the holders of revenue bonds or other obligations issued by the agency, including with a state entity that provides financing to the agency, that the public utilities and the agency will not terminate the agency or take any other action that would limit or alter the rights and powers vested in the agency by this section to fulfill the terms of a contract made by the agency with the holders of the bonds or other obligations and that the public utilities and the agency will not in any way impair the rights and remedies of the holders until the bonds or other obligations, together with the interest on them with interest on unpaid installments of interest, and all costs and expenses in connection with an action or proceeding by or on behalf of the holders of the bonds or other obligations are fully met and discharged. The agency may include this pledge and agreement of the public utilities and the agency, insofar as it refers to holders of bonds and other obligations of the agency, in a contract with the holders and, insofar as it relates to a state entity, in a contract with the state entity.
   (f) Bonds and other obligations issued by the agency and all interest and income from them and all fees, charges, funds, revenue, income, and other money pledged or available to pay or secure the payment of the bonds or obligations or interest on them are exempt from taxation. The real and personal property of the agency and the assets, income, and receipts of the agency are exempt from all taxes and special assessments of the state or a political subdivision of the state, except that electricity sold at retail by an agency is subject to the electric cooperative tax (AS 10.25.540 - 10.25.570).
   (g) A loan to, investment in, or other financial assistance provided to the agency by the state or any political subdivision of the state does not constitute a violation of AS 37.10.085.
   (h) An agency formed by, and that continues to include, one or more municipal public utilities is a political subdivision for purposes of AS 38.05.810, and functions as a political subdivision in the acquisition and ownership of the power project under the agreement authorized by this section. Except as provided in this subsection, the agency is not a political subdivision of the state.
   (i) The agency may not sell a project owned by the agency to any purchaser without the approval of the legislature in advance of the effective date of the sale, except that a sale made to a public utility that is a party to the agreement does not require legislative approval.
   (j) Notwithstanding (i) of this section, the project and related assets may be transferred in connection with a foreclosure or other enforcement of a lien or security interest to a party holding a lien or security interest acquired under (c)(6) of this section or to another party without legislative approval. A party obtaining a property interest under this subsection may transfer that interest without legislative approval.
   (k) In this section,
        (1) "agency" means a joint action agency formed under this section;
        (2) "agency agreement" or "agreement" means the written agreement described in (d) of this section between or among the public utilities creating a joint action agency;
        (3) "parties to the agency agreement" means those public utilities that initially form the agency and,
             (A) in the event of a permitted withdrawal of a public utility from the agency in accordance with the terms of the agency agreement, those public utilities that remain parties to the agency agreement; and
             (B) if authorized by law, includes an additional public utility that becomes a party to the agency agreement;
        (4) "public utility" has the meaning given the term in AS 42.05.990;
        (5) "state entity" means a state department, authority, or other administrative unit of the executive branch of state government.

Authorities

42.05.431;42.05.711;42.45.320;44.85.410

Notes

References

AS 42.05.431 Power of commission to fix rates.
AS 42.05.711 Exemptions.
AS 42.45.320 Liability, indemnification, and insurance.
AS 44.85.410 Definitions.

History

(Sec. 10 ch 60 SLA 2000; am Sec. 5 - 12 ch 4 SLA 2001; am Sec. 1 - 3 ch 100 SLA 2004)