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  • Acts
  • 2000
  • Chapter 352 AN ACT ESTABLISHING THE UPPER CAPE REGIONAL WATER SUPPLY COOPERATIVE.

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. It is hereby declared essential for the benefit of the people of the towns of Falmouth, Bourne, Sandwich and Mashpee, in order to sustain and protect their welfare, prosperity and their living conditions, that the towns establish a supplementary water supply system, that accurate, appropriate, and self-sustaining fees, rates and charges for said supplementary water supply be established; that said supplementary systems for said municipalities be operated in a modern, efficient and financially self-sustaining manner to further their sound financial, environmental and physical condition; that conservation of water sources be encouraged; that water supplies be protected and improved; and that the towns be provided a means to insure the continued availability of water; all to the public benefit and good, and to the extent and in the manner provided herein.

SECTION 2. For the purposes specified in section 1, the Bourne water district, the town of Falmouth, the Mashpee water district and the Sandwich water district may create a water supply agency to be known as the Upper Cape Regional Water Supply Cooperative which, as created in accordance with this section, shall be a body politic and corporate and a public instrumentality, hereinafter referred to as the cooperative. The cooperative shall be created when this act has been accepted by at least the town of Falmouth and any other water district enumerated above, or by any two water districts enumerated above. Such acceptance shall be, in the case of the town of Falmouth, by a vote taken in accordance with section 4 of chapter 4 of the General Laws and in the case of the Mashpee water district, the Sandwich water district or the Bourne water district, by a vote of its inhabitants at an annual or special ballot election. Upon creation, the cooperative shall have, any general or special law notwithstanding, as hereinafter provided and in accordance with this act, the power and authority to extract groundwater supplies as the board of managers may determine is appropriate, and to locate wells, determine rates of extraction, construct, operate, and maintain a public water supply and appurtenant water distribution works within the geographical area described as follows:

That land located in the towns of Sandwich, Bourne, and Mashpee, Falmouth, owned by the commonwealth and known as the Massachusetts Military Reservation; provided, however, that the cooperative shall take no action which will interfere with the lawful operations of: (i) the Department of the Army pursuant to a lease between the commonwealth and the United States of America dated July 1, 1976; (ii) the Department of the Air Force pursuant to a lease dated July 1, 1974 between the commonwealth and the United States of America, as superseded by lease contract No. DACA51-5-75-293 between the United States of America and the commonwealth, and as modified by a supplemental agreement between the commonwealth and the United States of America dated July 1, 1976, lease contract No. DACA51-5-75-293, Modification No. 3, and Supplemental Agreement No. 4 dated April 11, 1995; (iii) the Department of Transportation, U.S. Coast Guard, pursuant to a lease between the commonwealth and the United States of America dated July 1, 1976; (iv) the Massachusetts army national guard, pursuant to a license from the secretary of the Army to the commonwealth dated July 2, 1976; or (v) the Massachusetts air national guard pursuant to a license from the secretary of the Air Force to the commonwealth dated November 30, 1983.

If any municipal entity, once having accepted this act in accordance with the provisions of this section, desires to withdraw from the cooperative, it may do so with 24 months prior written notice to the board of managers, and in the same manner provided for acceptance of this act; provided, however, that such withdrawing municipal entity shall be obligated to pay its pro rata share on the municipal entity's obligations for the fiscal year in which it withdraws, together with its pro rata share on all bonds or notes which have been approved prior to the date upon which such municipal entity gives notice of its intention to withdraw from the cooperative. In the event that any municipal entity which has not accepted this act within one year of its effective date, desires thereafter to do so, it may do so in accordance with this section, provided that the board of managers, in consultation with the board of selectmen or water commissioners of such municipal entity, shall first fix and determine an equitable share of capital expenses incurred to that date by the cooperative, which sums shall be payable upon such terms as may be agreed between the board of managers and such municipal entity. In the event that the board of managers and the municipal entity desiring to join the cooperative are unable to agree on such equitable share, the matter shall be submitted to arbitration by a panel consisting of one member of the board of managers, or its designee, one member of the board of selectmen or water commissioners for the municipal entity or their designee, and a third party selected by the first two members of the panel. Said third party shall be a disinterested person without any business interest or residence in any of the municipal entities. Said arbitration panel shall hear the arguments and information submitted by the board of managers and the municipal entity desirous of joining the cooperative. After consideration of the respective positions of the board of managers and the municipal entity desirous of joining the cooperative on what constitutes an equitable share of capital expenses incurred to that date by the cooperative, the arbitration panel shall determine the amount of such equitable share and, if the parties are unable to agree, the terms of payment therefore, and such determination shall be final and conclusive upon the board of managers and the municipal entity desirous of joining the cooperative. The availability of water from the cooperative shall not be considered an alternative to the development of municipal supplies of water by any of the municipal entities for the purposes of section 62B of chapter 30 of the General Laws, irrespective of whether or not the municipal entity seeking approval of such municipal water supplies has joined the cooperative or not, nor shall the availability of such water form any basis for the decision of an agency of the commonwealth to make a finding pursuant to section 61 of said chapter 30.

SECTION 3. The management and control of all property acquired by, and the exercise of all powers, privileges and duties conferred upon the cooperative pursuant to the provisions of this act shall be vested in and exercised by a board of managers, which shall consist of two members appointed by the board of water commissioners, in the case of any water district which has accepted this act, and by the board of selectmen, in the case of any town which has accepted this act. The cooperative shall be deemed a governmental body pursuant to chapter 30B of the General Laws. Notwithstanding any general or special law to the contrary, the administrators of the cooperative who are procurement officers for said cooperative shall participate in the Massachusetts public purchasing official certification program conducted by the office of the inspector general in order to earn a Massachusetts public purchasing official certificate. Of the two representatives of each town or district which has accepted this act, one member shall serve for a term of two years, and the other shall serve for a term of three years. Members of the board of managers shall be paid $1,000 annually, and the chairman shall be paid $1,500 annually. Members may be removed for cause by their appointing authority. Members of the board of managers, together with its agents, employees, and professional staff shall be indemnified against personal liability by the cooperative. The cooperative shall be deemed a public employer pursuant to chapter 258 of the General Laws. The cooperative acting through its initial board of managers shall promptly adopt by-laws describing by whom and how meetings of the board may be called, notified and conducted; establish rules and regulations for the management of its affairs not inconsistent with this act or any other provision of law; shall appoint for such term as it may determine, a corporate treasurer of the cooperative, and such other officers and employees not specifically provided for in this act as it may deem necessary and proper, and shall fix their compensation. The treasurer shall not be a member of the board of managers, and shall give bond to the cooperative in such an amount as may be approved by said board with a surety company authorized to transact business in the commonwealth as a surety. The cooperative may contract with any of the municipal entities for treasurer services upon terms mutually agreeable to the cooperative and the municipal entity. A majority of appointed managers shall constitute a quorum of the board of managers. Vacancies occurring in the membership of the board of managers from any cause may be filled for the remainder of the unexpired term by the appointing authority. No vacancy occurring in the membership of the board of managers shall disqualify the board of managers from taking any action authorized by this act.

The board of managers shall annually prepare and provide to the board of selectmen of the town of Falmouth and the water commissioners of the towns of Bourne, Mashpee, and Sandwich that have accepted this act, and to each user of water of the cooperative who requests the same, a written report of the condition of the system, the actions of the board of managers, and receipts and expenditures of the cooperative for the preceding fiscal year.

SECTION 4. The cooperative, acting by and through its board of managers, shall have all the rights and powers necessary or convenient to carry out and effectuate the purposes of this act including, but without limiting the generality of the foregoing, the following rights and powers:

(a) to adopt the by-laws for the regulation of its affairs and the conduct of its business, to promulgate rules, regulations and procedures in connection with the performance of its functions and duties, and to fix, enforce, and collect penalties for the violations thereof;

(b) to adopt an official seal and alter the same at its pleasure;

(c) to maintain an office at such place or places as it may determine;

(d) 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 cooperative, and to accept contributions of money, property, labor, or other things of value;

(e) to acquire by purchase, lease, lease purchase, sale and lease back, gift, or devise, or to obtain options for the acquisition of, any property, real or personal, easements, water, or water rights, or any interest therein, in the exercise of its powers and the performance of its duties;

(f) to sell, lease, mortgage, exchange, transfer or otherwise dispose of, or grant options for any such purposes with respect to, any water, water rights, and any other property, real or personal, tangible or intangible, or any interest therein;

(g) to enter onto any land within the geographical boundaries of the cooperative to make surveys, borings, soundings and examinations thereof, provided that the cooperative shall insofar as possible restore the land to the same condition as prior to the making of such surveys, borings, soundings, and examinations;

(h) to construct, improve, extend, enlarge, maintain, and repair the water works system located within the geographical jurisdiction of the cooperative;

(i) 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;

(j) to fix, revise, charge, collect and abate fees, rates, rents, delinquency charges and other charges for water and other services, facilities and commodities furnished or supplied by it;

(k) to sue and be sued and to prosecute and defend actions relating to its properties and affairs, provided that only property of the cooperative other than revenues pledged to the payment of bonds or notes shall be subject to attachment or levied upon execution or otherwise;

(l) to from time to time sell such of the property of the cooperative as shall, in the opinion of its board of managers, be no longer useful in the conduct of the affairs of the cooperative;

(m) to employ personnel and to engage architectural, engineering, accounting, management, legal, financial, and environmental consulting and other professional services;

(n) to establish specific construction standards and specifications for the water distribution supply system;

(o) to charge a systems development charge to customers who are not municipal entities seeking to connect into the water supply system; in such amount as the board of managers may determine; provided, however, that no systems development charge shall be made to Otis air national guard Base, 102FIW/DEEV, Building 971, Otis air national guard Base, MA 02542-5028 any successor registrant for any connection to the water supply system which provides an amount of water equal to or less than the amount of 197.10 MGY Total Annual Volume withdrawal for which the Otis air national guard Base registered with the department of environmental protection pursuant to registration no. 4-22-225.02, dated May 28, 1999, but the said Otis air national guard Base, or any successor registrant may be charged a systems development charge for any supply of water over or above the volume set forth in said registration; and

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

SECTION 5. Fees, rates, rents, assessments, and other charges for water or other services, facilities, and commodities furnished or supplied by the cooperative shall be fixed and adjusted by the board of managers so as to provide funds at least sufficient in each fiscal year, together with other revenues and funds of the cooperative, if any, available therefore, to pay the full cost of operation of the cooperative for that fiscal year, including all current expenses; all debt service on bonds or notes of the cooperative; all costs of maintenance, repair and replacement, including the establishment of reasonable sinking funds, overlay funds, stabilization funds, replacement reserves, and other similar funds in accordance with generally accepted accounting principles, as determined by the board of managers to be necessary or desirable to be funded as current expenses; and all other amounts which the cooperative may be obligated to pay or provide for by law or by contract. Notwithstanding any general or special law to the contrary, the board of managers may establish rates, including differential rates, rents, assessments, fees and other charges authorized by this act which may vary depending on whether the customer is a municipal entity as referred to in section 2, or is a customer which is not a municipal entity.

SECTION 6. The cooperative, for the purpose of paying expenses of maintenance and operation not covered by charges for water may, any other general or special law notwithstanding, and in accordance with this section, from time to time assess sums against the municipal entities that have accepted this act in accordance with section 2. If the board of managers of the cooperative desires to make such assessments, the board of managers shall determine what sum, in the aggregate, is necessary to pay for expenses of the cooperative not covered by fees charged in accordance with section 5, and shall apportion such amount in accordance with the proportional annual use by each municipal entity of the total amount of water being supplied by the cooperative. Upon determining such amounts, the board of managers shall certify, to the board of selectmen in the town of Falmouth, and to the board of water commissioners of the Bourne water district, Sandwich water district or Mashpee water district who shall have accepted the provisions of this act in accordance with section 2, that the board of managers have authorized an assessment against such municipal entities, and the amount to be assessed against each municipal entity therefore. The board of selectmen or the board of water commissioners, as the case may be, of each municipal entity, shall cause to be placed on the warrant for the next available special or annual town or district meeting, an article in the form specified by the board of managers, seeking authorization from the town or district meeting to raise and appropriate such amounts, for payment over to the cooperative. Upon approval by the town or district meeting of two-thirds of such municipal entities, notwithstanding any other general or special law to the contrary, all municipal entities that have been assessed by the board of managers in accordance with this section, shall raise and appropriate, and pay over to the cooperative, such sums as have been assessed. Any sums assessed by the cooperative and raised and appropriated by a municipal entity in accordance with this section shall not be subject to sections 20A, 20B and 21C of chapter 59 of the General Laws.

SECTION 7. The cooperative, for the purpose of paying necessary expenses and liabilities incurred under this act, other than expenses of maintenance and operation, may, any other general or special law notwithstanding, and in accordance with this section, from time to time borrow such additional sums as may be necessary, not exceeding, in the aggregate $50,000,000 and issue bonds or notes therefore which shall bear on their face the words Upper Cape Regional Water Supply Cooperative Loan Act of 2000 and such other distinguishing designation as may be determined by the board of managers, and each authorized issue shall constitute a separate loan and such loans shall be payable in not more than 40 years from their dates, notwithstanding any other provision of law. The cooperative may borrow from time to time such funds as may be necessary for the purposes of this act in anticipation of revenue without the necessity of complying with this section. Indebtedness incurred under this act shall, except as otherwise provided herein, be subject to chapter 44 of the General Laws.

Prior to the issuance of such bonds or notes, other than borrowings in anticipation of revenue, the board of managers shall apportion the cost of repayment of each bond or note, which cost shall be apportioned to each municipal entity which has accepted this act pursuant to section 2 in accordance with the proportional annual use by each such municipal entity of the total amount of water supplied by the cooperative. Upon determining such amounts, the board of managers shall certify, to the board of selectmen in the town of Falmouth, and the board of water commissioners of the Bourne water district, Sandwich water district or Mashpee water district, who shall have accepted this act in accordance with section 2, that the board of managers have authorized the issuance of such bonds or notes, and the amount to be assessed against each municipal agency therefore. The board of selectmen or board of water commissioners, as the case may be, of each municipal entity, shall cause to be placed in the warrant for the next available special or annual town or district meeting, an article in the form specified by the board of managers, seeking authorization from the town or district meeting for the cooperative to issue such bonds or notes, and the amount to be assessed therefore against each municipal agency. Upon approval by the town or district meeting of two-thirds of such municipal entities, the cooperative may issue such bonds or notes as have been approved. Such bonds or notes shall be issued upon the full faith and credit of the cooperative, and of all municipal entities who have accepted this act in accordance with section 2, notwithstanding any other provision of law. If two-thirds of the municipal entities which have accepted this act in accordance with section 2 shall approve the issuance of bonds or notes as set forth herein, all municipal entities which have accepted this act in accordance with section 2 shall, notwithstanding their refusal to approve such bonds or notes at an annual or special district or town meeting, as the case may be, be obligated to pay all sums certified by the cooperative pursuant to this section. The indebtedness on bonds or notes issued by the cooperative and the municipal entities pursuant to this act shall not be subject to section 10 of chapter 44, and sums assessed by the cooperative to repay such bonds or notes shall not be subject to sections 20A, 20B and 21C of chapter 59 of the General Laws.

The fiscal year of the cooperative shall commence July 1 and end June 30, or as otherwise provided in the by-laws of the cooperative.

SECTION 8. Whoever intentionally corrupts, pollutes or diverts any water obtained or supplied under this act, or intentionally injures any reservoir, well, standpipe, aqueduct, pipe or other property owned or used by the cooperative for any of the purposes of this act, or tampers with any metering device owned or utilized by the cooperative, shall forfeit and pay to the cooperative three times the amount of damages assessed therefore, to be recovered in an action of tort, together with reasonable attorney's and engineering costs and expenses incurred by the cooperative in the investigation, assessment, and prosecution of such action. Whoever is convicted of any of the above acts shall be punished by a fine of not more than $10,000 or by imprisonment for not more than one year, or both.

SECTION 9. In the event that the board of managers desires to terminate the cooperative and dispose of its assets, a majority of the board of managers then existing shall first vote to do so, and give notice of such vote, in writing, to the board of selectmen, and board of water commissioners, of any municipal entity which has accepted this act in accordance with section 2. Each municipal entity shall thereafter provide, at its next regular or special election, a ballot vote which shall contain the question "Shall the Upper Cape Regional Water Supply Cooperative be dissolved, and its assets deposed of in accordance with the vote of its board of managers?". If a majority of municipal entities which have accepted this act vote in the affirmative, the cooperative shall be dissolved, but not otherwise. In the event of such affirmative vote, the board of managers shall be empowered to dispose of the assets of the cooperative in accordance with the General Laws.

SECTION 10. If the cooperative authorized by section 2 is not created in the manner described in said section 2 within ten years from the effective date of this act, then this act shall be without further legal effect.

SECTION 11. This act shall take effect upon its passage.

Approved December 21, 2000.