CODING: Words stricken are deletions; words underlined are additions.
SENATE AMENDMENT
Bill No. CS for SB 400
Amendment No.
CHAMBER ACTION
Senate House
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11 Senator Horne moved the following amendment:
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13 Senate Amendment (with title amendment)
14 On page 4, after line 31,
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16 insert:
17 Section 3. Short title.--This act may be referred to
18 as the "Higher Educational Facilities Financing Act."
19 Section 4. Findings and declarations.--It is declared
20 that for the benefit of the people of the state, the increase
21 of their commerce, welfare, and prosperity, and the
22 improvement of their health and living conditions, it is
23 essential that this and future generations of youth be given
24 the fullest opportunity to learn and to develop their
25 intellectual and mental capacities; that it is essential for
26 private institutions of higher education in the state to be
27 provided with appropriate additional means to assist such
28 youth in achieving the required levels of learning and
29 development of their intellectual and mental capacities; that
30 it is the purpose of this act to provide a measure of
31 assistance and an alternative method enabling private
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Bill No. CS for SB 400
Amendment No.
1 institutions of higher education of this state to provide the
2 facilities and structures that are sorely needed to accomplish
3 the purposes of this act; and that it is essential to provide
4 additional assistance to private institutions of higher
5 education by enabling those institutions to coordinate their
6 budgetary needs with the timing of receipt of tuition
7 revenues.
8 Section 5. Definitions.--As used in this act, the
9 term:
10 (1) "Authority" or "educational facilities authority"
11 means the public corporation created by this act.
12 (2) "Real property" includes all lands, including
13 improvements and fixtures thereon, and any such property
14 appurtenant thereto, or used in connection therewith and every
15 estate, interest and right, legal or equitable, therein,
16 including terms for years and liens by way of judgment,
17 mortgage, or otherwise and the indebtedness secured by such
18 liens. This definition does not affect the classification of
19 property as real property or tangible personal property for
20 purposes of ad valorem taxation under chapters 192 and 193,
21 Florida Statutes, or sales and use taxation under chapter 212,
22 Florida Statutes.
23 (3) "Project" means a structure suitable for use as a
24 dormitory or other housing facility, dining hall, student
25 union, administration building, academic building, library,
26 laboratory, research facility, classroom, athletic facility,
27 health care facility, and maintenance, storage, or utility
28 facility, and other structures or facilities related thereto,
29 or required thereby, or required or useful for the instruction
30 of students, or the conducting of research, or the operation
31 of an institution of higher education, including parking and
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1 other facilities or structures, essential for the orderly
2 conduct of an institution of higher education and shall also
3 include equipment and machinery and other similar items
4 necessary for the operation of a particular facility or
5 structure in the manner for which its use is intended, but the
6 term does not include such items as books, fuel, supplies, or
7 other items that are customarily considered to result in a
8 current operating charge. The term also includes a loan in
9 anticipation of tuition revenues by a private institution of
10 higher education.
11 (4) "Cost," as applied to a project or any portion
12 thereof financed under this act, embraces all or any part of
13 the cost of construction and acquisition of all lands,
14 structures, real or personal property, rights, rights-of-way,
15 franchises, easements, and interests acquired or used for a
16 project, the cost of demolishing or removing any buildings or
17 structures on land so acquired, including the cost of
18 acquiring any lands to which the buildings or structures may
19 be removed, the cost of all machinery and equipment, financing
20 charges, interest before, during, and for a period of 30
21 months after completion of the construction, provisions for
22 working capital, reserves for principal, interest and rebate,
23 and for extensions, enlargements, additions and improvements,
24 cost of engineering, financial and legal services, plans,
25 specifications, studies, surveys, estimates of cost and of
26 revenues, administrative expenses, expenses necessary to
27 determining the feasibility or practicability of constructing
28 the project and other expenses as may be necessary to the
29 construction and acquisition of the project, the financing of
30 the construction and acquisition and the placing of the
31 project in operation. In the case of a loan in anticipation of
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1 tuition revenues, the term "cost" means the amount of the loan
2 in anticipation of revenues which does not exceed the amount
3 of tuition revenues anticipated to be received by the
4 borrowing institution of higher education in the 1-year period
5 following the date of the loan, plus costs related to the
6 issuance of the loans, or bonds, the proceeds of which fund
7 the loans, and any related cost of debt service reserve funds
8 and rebate associated therewith.
9 (5) "Bond" or "revenue bond" means a revenue bond of
10 the authority issued under this act, including a revenue
11 refunding bond, notwithstanding that it may be secured by
12 mortgage or the full faith and credit of a participating
13 institution of higher education or any other lawfully pledged
14 security of a participating institution of higher education.
15 (6) "Institution of higher education" means an
16 educational institution that by virtue of law or charter is a
17 nonprofit educational institution empowered to provide a
18 project of education beyond the high school level; is not
19 owned or controlled by the state or any political subdivision,
20 agency, instrumentality, district, or municipality of the
21 state; and otherwise meets the requirements of section 196.012
22 (5), Florida Statutes.
23 (7) "Participating institution" means an institution
24 of higher education that undertakes the financing and
25 construction or acquisition of a project or undertakes the
26 refunding or refinancing of obligations or of a mortgage or of
27 advances as provided in and permitted by this act.
28 (8) "Loan in anticipation of tuition revenues" means a
29 loan to an institution of higher education under circumstances
30 in which tuition revenues anticipated to be received by the
31 institution in any budget year are estimated to be
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1 insufficient at any time during the budget year to pay the
2 operating expenses or other obligations of the institution in
3 accordance with the budget of the institution.
4 Section 6. Creation of Higher Educational Facilities
5 Financing Authority.--
6 (1) There is created a public body corporate and
7 politic to be known as the Higher Educational Facilities
8 Financing Authority. The authority is constituted as a public
9 instrumentality and the exercise by the authority of the
10 powers conferred by this act is considered to be the
11 performance of an essential public function. Chapters 119 and
12 286, Florida Statutes, shall apply to the authority.
13 (2) The authority shall consist of five members to be
14 appointed by the Governor, subject to confirmation by the
15 Senate. One member shall be a trustee, director, officer, or
16 employee of an institution of higher education. Of the members
17 first appointed, one shall serve for 1 year, one for 2 years,
18 one for 3 years, one for 4 years, and one for 5 years, and in
19 each case until his or her successor is appointed and has
20 qualified. Thereafter, the Governor shall appoint for terms of
21 5 years each a member or members to succeed those whose terms
22 expire. The Governor shall fill any vacancy for an unexpired
23 term. A member of the authority is eligible for reappointment.
24 Any member of the authority may be removed by the Governor for
25 misfeasance, malfeasance, or willful neglect of duty. Each
26 member of the authority before entering upon his or her duties
27 shall take and subscribe to the oath or affirmation required
28 by the State Constitution. A record of each oath must be filed
29 in the office of the Department of State and with the
30 authority.
31 (3) The authority shall annually elect one of its
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1 members as chair and one as vice chair, and shall also appoint
2 an executive director who is not a member of the authority and
3 who serves at the pleasure of the authority and receives
4 compensation as fixed by the authority. The duties of the
5 executive director may be discharged under a contract with the
6 Independent Colleges and Universities of Florida, a
7 not-for-profit corporation representing the independent
8 colleges and universities of the state, or any successor
9 corporation or other such entity providing similar
10 representation, chosen by the authority, or an agency or other
11 entity representing independent colleges and universities
12 providing such services, in which case the entity shall
13 designate a person to perform those duties.
14 (4) The executive director shall keep a record of the
15 proceedings of the authority and shall be custodian of all
16 books, documents, and papers filed with the authority and of
17 the minute book or journal of the authority and of its
18 official seal. He or she may cause copies to be made of all
19 minutes and other records and documents of the authority and
20 may give certificates under the official seal of the authority
21 to the effect that the copies are true copies, and all persons
22 dealing with the authority may rely upon the certificates.
23 (5) A majority of the members of the authority
24 constitutes a quorum, and the affirmative vote of a majority
25 of the members present at a meeting of the authority is
26 necessary for any action taken by the authority. A vacancy in
27 the membership of the authority may not impair the right of a
28 quorum to exercise all the rights and perform all the duties
29 of the authority. Any action taken by the authority under this
30 act may be authorized by resolution at any regular or special
31 meeting, and each resolution shall take effect immediately and
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1 need not be published or posted.
2 (6) The members of the authority shall receive no
3 compensation for the performance of their duties, but each
4 member shall be paid his or her necessary expenses incurred
5 while engaged in the performance of his or her duties.
6 (7) The authority is assigned to the Department of
7 Education for administrative purposes.
8 Section 7. Powers of authority.--The purpose of the
9 authority is to assist institutions of higher education in the
10 construction, financing, and refinancing of projects
11 throughout the state and for this purpose the authority may:
12 (1) Exercise all powers granted to corporations under
13 the Florida Business Corporation Act, chapter 607, Florida
14 Statutes.
15 (2) Have perpetual succession as a body politic and
16 corporate and adopt bylaws for the regulation of its affairs
17 and the conduct of its business.
18 (3) Adopt an official seal and alter the same at its
19 pleasure.
20 (4) Maintain an office at any place in the state that
21 it may designate.
22 (5) Sue and be sued in its own name, and plead and be
23 impleaded.
24 (6) Make and execute financing agreements, leases, as
25 lessee or as lessor, contracts, deeds, and other instruments
26 necessary or convenient in the exercise of the powers and
27 functions of the authority under this act, including contracts
28 with persons, firms, corporations, federal and state agencies,
29 and other authorities, which state agencies and other
30 authorities are hereby authorized to enter into contracts and
31 otherwise cooperate with the authority to facilitate the
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1 financing, construction, leasing, or sale of any project or
2 the institution of any program; engage in sale-leaseback,
3 lease-purchase, lease-leaseback, or other undertakings and
4 provide for the sale of certificates of participation incident
5 thereto; enter into interlocal agreements in the manner
6 provided in section 163.01, Florida Statutes.
7 (7) Determine the location and character of any
8 project to be financed under this act and may:
9 (a) Construct, reconstruct, maintain, repair, operate,
10 lease as lessee or lessor, and regulate the project;
11 (b) Enter into contracts for any of those purposes;
12 (c) Enter into contracts for the management and
13 operation of a project; and
14 (d) Designate a participating institution of higher
15 education as its agent to determine the location and character
16 of a project undertaken by a participating institution of
17 higher education under this act and, as the agent of the
18 authority, construct, reconstruct, maintain, repair, operate,
19 own, lease as lessee or lessor, and regulate the project, and,
20 as the agent of the authority, enter into contracts for any of
21 those purposes, including contracts for the management and
22 operation of the project.
23 (8) Issue bonds, bond anticipation notes, and other
24 obligations of the authority for any of its corporate
25 purposes, including the providing of funds to pay all or any
26 part of the cost of any project, and to fund or refund the
27 cost of any project as provided in this act.
28 (9) Generally fix and revise and charge and collect
29 rates, rents, fees, and charges for the use of and for the
30 services furnished or to be furnished by a project or any
31 portion thereof and to contract with any person, partnership,
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1 association, or corporation or other body public or private in
2 respect thereof.
3 (10) Establish rules and regulations for the use of a
4 project or any portion thereof and designate a participating
5 institution of higher education as its agent to establish
6 rules and regulations for the use of a project undertaken by
7 the participating institution of higher education.
8 (11) Employ consulting engineers, architects,
9 attorneys, accountants, construction and financial experts,
10 superintendents, managers, and other employees and agents as
11 may be necessary in its judgment, and fix their compensation.
12 (12) Receive and accept from any public agency loans
13 or grants for or in aid of the construction of a project or
14 any portion thereof, and receive and accept loans, grants,
15 aid, or contributions from any source of either money,
16 property, labor, or other things of value, to be held, used,
17 and applied only for the purposes for which the loans, grants,
18 aid, and contributions are made.
19 (13) Mortgage any project and the site thereof for the
20 benefit of the holders of revenue bonds issued to finance
21 projects or those providing credit for that purpose.
22 (14) Make loans to any participating institution of
23 higher education for the cost of a project, including a loan
24 in anticipation of tuition revenues, in accordance with an
25 agreement between the authority and the participating
26 institution of higher education; but no loan may exceed the
27 total cost of the project as determined by the participating
28 institution of higher education and approved by the authority.
29 (15) Make loans to a participating institution of
30 higher education to refund outstanding obligations, mortgages,
31 or advances issued, made, or given by the participating
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1 institution of higher education for the cost of a project.
2 (16) Charge to and equitably apportion among
3 participating institutions of higher education its
4 administrative costs and expenses incurred in the exercise of
5 the powers and duties conferred by this act.
6 (17) Contract with an entity representing independent
7 colleges and universities as its agent to assist the authority
8 in screening applications of institutions of higher education
9 for loans under this act and receive any recommendations the
10 entity may make.
11 (18) Do all things necessary or convenient to carry
12 out the purposes of this act.
13 Section 8. Payment of expenses.--All expenses incurred
14 in carrying out this act are payable solely from funds
15 provided under the authority of this act, and no liability or
16 obligation may be incurred by the authority beyond the extent
17 to which moneys have been provided under this act.
18 Section 9. Acquisition of real property.--The
19 authority may directly, or by and through a participating
20 institution of higher education as its agent, acquire by
21 purchase or lease solely from funds provided under this act,
22 or by gift or devise, any lands, structures, property, real or
23 personal, rights, rights-of-way, franchises, easements, and
24 other interests in lands, including lands lying underwater,
25 and riparian rights, which are located within or outside the
26 state as it may consider necessary or convenient for the
27 construction or operation of a project, upon terms and at
28 prices as are considered by it to be reasonable and that can
29 be agreed upon between it and the owner thereof, and to take
30 title thereto in the name of the authority or in the name of a
31 participating institution of higher education as its agent or
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1 as an owner and borrower.
2 Section 10. Conveyance of title or interest to
3 participating institutions.--When the principal of and
4 interest on revenue bonds of the authority issued to finance
5 the cost of a particular project or projects at a
6 participating institution of higher education, including any
7 revenue refunding bonds issued to refund and refinance the
8 revenue bonds, have been fully paid and retired, or when
9 adequate provision has been made to pay fully and retire them,
10 and all other conditions of the resolution or trust agreement
11 authorizing and securing the revenue bonds have been satisfied
12 and the lien of the resolution or trust agreement has been
13 released in accordance with the provisions thereof, the
14 authority shall promptly execute deeds and conveyances
15 necessary and required to convey title to the project or
16 projects to the participating institution of higher education,
17 free and clear of all liens and encumbrances.
18 Section 11. Criteria and requirements.--In undertaking
19 any project under this act, the authority shall be guided by
20 and shall observe the following criteria and requirements;
21 however, the determination of the authority as to compliance
22 with the criteria and requirements is final and conclusive:
23 (1) The project, in the determination of the
24 authority, is appropriate to the needs and circumstances of,
25 and shall make a significant contribution to the purposes of,
26 the authority and this act as set forth in the findings and
27 declarations, and shall serve a public purpose by advancing
28 the prosperity and general welfare of the state and its
29 people.
30 (2) A financing agreement for a project may not be
31 entered into with a participating institution that is not
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1 financially responsible and fully capable of and willing to
2 fulfill its obligations under the financing agreement,
3 including the obligations to make payments in the amounts and
4 at the times required; to operate, repair, and maintain at its
5 own expense the project owned or leased; and to serve the
6 purposes of this act and any other responsibilities that may
7 be imposed under the financing agreement. In determining the
8 financial responsibility of the participating institution,
9 consideration must be given to the party's ratio of current
10 assets to current liabilities; net worth; endowments; pledges;
11 earning trends; coverage of all fixed charges; the nature of
12 the project involved; its inherent stability; any guarantee of
13 the obligations by some other financially responsible
14 corporation, firm, or person; means by which the bonds are to
15 be marketed to the public; and other factors determinative of
16 the capability of the participating institution, financially
17 and otherwise, to fulfill its obligations consistently with
18 the purposes of this act. In making findings and
19 determinations, the authority may rely upon the
20 recommendations of the entity representing independent
21 colleges and universities.
22 (3) Adequate provision must be made for the operation,
23 repair, and maintenance of the project at the expense of the
24 owner or lessee and for the payment of principal of and
25 interest on the bonds.
26 (4) The costs to be paid from the proceeds of the
27 bonds are costs of a project within the meaning of this act,
28 except for payments included in the purposes for which revenue
29 refunding bonds may be issued under this act.
30 Section 12. Approval required to issue bonds.--The
31 authority is created for the purpose of promoting higher
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1 education and issuing bonds on behalf of the state, and the
2 Governor may approve any bonds issued by the authority which
3 require approval under federal law.
4 Section 13. Agreements of sale, lease, or loan.--
5 (1) A project financed under this act may not be
6 operated by the authority or any other governmental agency,
7 except that the authority may temporarily operate or cause to
8 be operated all or any part of a project to protect its
9 interest therein, pending any leasing or sale of the project.
10 A project acquired or constructed by the authority, unless
11 sold or contracted to be sold, must be leased to one or more
12 persons, firms, or private corporations for operation and
13 maintenance in a manner as will effectuate the purposes of
14 this act, under an agreement of sale, installment sale, lease
15 or loan, in form and substance not inconsistent herewith. Any
16 agreement may provide, among other provisions, that:
17 (a) The owner or lessee shall at its own expense
18 operate, repair, and maintain the project sold or leased
19 thereunder.
20 (b) The payments or rent payable under the agreement
21 will in the aggregate be not less than an amount sufficient to
22 pay all of the interest, principal, and redemption premiums,
23 if any, on the bonds that will be issued by the authority to
24 pay the cost of the project sold or leased thereunder.
25 (c) The owner or lessee shall pay all other costs
26 incurred by the authority in connection with the financing,
27 construction, and administration of the project sold or
28 leased, except as may be paid out of the proceeds of bonds or
29 otherwise, including, but without being limited to, insurance
30 costs, the cost of administering the bond resolution
31 authorizing the bonds and any trust agreement securing the
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1 bonds, and the fees and expenses of the authority, trustees,
2 paying agents, attorneys, consultants, and others.
3 (d) The term of an agreement will terminate not
4 earlier than the date on which all bonds and all other
5 obligations incurred by the authority in connection with the
6 project sold or leased thereunder are paid in full, including
7 interest, principal, and redemption premiums, if any, or on
8 which adequate funds for payment are deposited in trust.
9 (e) The owner or lessee's obligation to pay payments
10 or rent is not subject to cancellation, termination, or
11 abatement until payment of the bonds or provision for payment
12 is made.
13 (2) An agreement may contain additional provisions
14 that in the determination of the authority are necessary to
15 effectuate the purposes of this act, including provisions for
16 extensions of the term and renewals of the sale or the lease
17 and vesting in the lessee an option to purchase the project
18 leased thereunder pursuant to any terms and conditions
19 consistent with this act that are prescribed in the lease;
20 however, except as is otherwise expressly stated in the
21 agreement and except to provide for any contingencies
22 involving the damaging, destruction, or condemnation of the
23 project or any substantial portion thereof, an option to
24 purchase may not be exercised unless all bonds issued for the
25 project, including all principal, interest, and redemption
26 premiums, if any, and all other obligations incurred by the
27 authority in connection with the project have been paid in
28 full or sufficient funds have been deposited in trust or
29 sufficient arrangements have been made for payment. However,
30 the purchase price of the project may not be less than an
31 amount sufficient to pay in full all of the bonds, including
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1 all principal, interest, and redemption premium, if any,
2 issued for the project then outstanding and all other
3 obligations incurred by the authority in connection with the
4 project.
5 Section 14. Notes of authority.--The authority may
6 issue its negotiable notes for any corporate purpose and renew
7 any notes by the issuance of new notes, whether the notes to
8 be renewed have or have not matured. The authority may issue
9 notes partly to renew notes or to discharge other obligations
10 then outstanding and partly for any other purpose. The notes
11 may be authorized, sold, executed, and delivered in the same
12 manner as bonds. Any resolution authorizing notes of the
13 authority or any issue thereof may contain any provisions that
14 the authority is authorized to include in any resolution
15 authorizing revenue bonds of the authority or any issue
16 thereof, and the authority may include in any notes any terms,
17 covenants, or conditions that it is authorized to include in
18 any bonds. All the notes must be payable solely from the
19 revenues of the project to be financed, subject only to any
20 contractual rights of the holders of any of its notes or other
21 obligations then outstanding.
22 Section 15. Revenue bonds.--
23 (1) The authority may issue its negotiable revenue
24 bonds for any corporate purpose, including the provision of
25 funds to pay all or any part of the cost of any project. In
26 anticipation of the sale of revenue bonds, the authority may
27 issue negotiable bond anticipation notes and may renew them
28 from time to time, but the maximum maturity of any note,
29 including renewals thereof, may not exceed 5 years from the
30 date of issue of the original note. The notes must be paid
31 from any revenues of the authority available therefor or of
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1 the project and not otherwise pledged, or from the proceeds of
2 sale of the revenue bonds of the authority in anticipation of
3 which they were issued. The notes must be issued in the same
4 manner as the revenue bonds. The notes and the resolution
5 authorizing them may contain any provisions, conditions, or
6 limitations that a bond resolution of the authority may
7 contain.
8 (2) The revenue bonds and notes of every issue must be
9 payable solely out of revenues of the authority, including the
10 provision of funds of the participating institution to pay all
11 or any part of the cost of any project, subject only to any
12 agreements with the holders of particular revenue bonds or
13 notes pledging any particular revenues. Notwithstanding that
14 revenue bonds and notes may be payable from a special fund,
15 they are for all purposes negotiable instruments, subject only
16 to the provisions of the revenue bonds and notes for
17 registration.
18 (3) The revenue bonds may be issued as serial bonds or
19 as term bonds; or the authority may issue bonds of both types.
20 The revenue bonds must be authorized by resolution of the
21 authority; must bear the date of issuance, the date of
22 maturity, not exceeding 50 years from issuance, and the
23 interest rate of the bonds, which may be a variable rate,
24 notwithstanding any limitation in other laws relating to
25 maximum interest rates; must be payable at a specified time;
26 must be in specified denominations; must be in specified form,
27 carry registration privileges, be executed in a specified
28 manner, be payable in lawful money of the United States at a
29 specified place, and be subject to the terms of redemption, as
30 the resolution may provide. The revenue bonds or notes may be
31 sold at public or private sale for the price the authority
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1 determines. Pending preparation of the definitive bonds, the
2 authority may issue interim receipts or certificates that may
3 be exchanged for the definitive bonds. In case any officer
4 whose signature, or a facsimile of whose signature, appears on
5 any bonds or coupons ceases to be that officer before the
6 delivery of the bonds, the signature or facsimile is
7 nevertheless valid and sufficient for all purposes as if he or
8 she had remained in office until delivery. The authority may
9 also provide for the authentication of the bonds by a trustee
10 or fiscal agent. The bonds may be issued in coupon form or in
11 registered form, or both, as the authority may determine, and
12 provision may be made for the registration of any coupon bonds
13 as to principal alone and also as to both principal and
14 interest; for the reconversion into coupon bonds of any bonds
15 registered as to both principal and interest; and for the
16 interchange of registered and coupon bonds. The authority may
17 sell the bonds either at public or private sale, and for the
18 price it determines will best effectuate the purpose of this
19 act, notwithstanding any limitation in other laws relating to
20 the maximum interest rate permitted for bonds or limitations
21 on the manner by which bonds are sold.
22 (4) Any resolution authorizing any revenue bonds may
23 contain provisions, which are a part of the contract with the
24 holders of the revenue bonds to be authorized, as to:
25 (a) Pledging of all or any part of the revenues of a
26 project or any revenue-producing contract made by the
27 authority with any individual, partnership, corporation, or
28 association or other body, public or private, to secure the
29 payment of the revenue bonds or of any particular issue of
30 revenue bonds, subject to any agreements with bondholders as
31 may then exist.
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1 (b) The rentals, fees, and other charges to be
2 charged, and the amounts to be raised in each year thereby,
3 and the use and disposition of the revenues.
4 (c) The setting aside of reserves or sinking funds and
5 the regulation and disposition thereof.
6 (d) Limitations on the right of the authority or its
7 agent to restrict and regulate the use of the project.
8 (e) Limitations on the purpose to which the proceeds
9 of sale of any issue of revenue bonds then or thereafter to be
10 issued may be applied and pledging the proceeds to secure the
11 payment of the revenue bonds or any issue of the revenue
12 bonds.
13 (f) Limitations on the issuance of additional bonds,
14 the terms upon which additional bonds may be issued and
15 secured, and the refunding of outstanding bonds.
16 (g) The procedure, if any, by which the terms of any
17 contract with bondholders may be amended or abrogated,
18 including the amount of bonds the holders of which must
19 consent thereto and the manner in which consent may be given.
20 (h) Limitations on the amount of moneys derived from
21 the project to be expended for operating, administrative, or
22 other expenses of the authority.
23 (i) The acts or omissions to act that constitute a
24 default in the duties of the authority to holders of its
25 obligations and providing the rights and remedies of the
26 holders in the event of a default.
27 (j) The mortgaging of or granting of a security
28 interest in the project or the site thereof for the purpose of
29 securing the bondholders.
30 (5) Neither the members of the authority nor any
31 person executing the revenue bonds or notes is liable
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Bill No. CS for SB 400
Amendment No.
1 personally on the revenue bonds or notes or is subject to any
2 personal liability or accountability by reason of the issuance
3 thereof.
4 (6) The authority may purchase its bonds or notes out
5 of any funds available therefor. The authority may hold,
6 pledge, cancel, or resell the bonds, subject to and in
7 accordance with agreements with bondholders.
8 (7) Incident to its powers to issue bonds and notes,
9 the authority may enter into interest rate swap agreements,
10 collars, caps, forward securities purchase agreements, delayed
11 delivery bond purchase agreements, and any other financial
12 agreements considered to be in the best interest of the
13 authority.
14 (8) Bonds may be issued under this act without
15 obtaining, except as otherwise expressly provided in this act,
16 the consent of any department, division, commission, board,
17 body, bureau, or agency of the state or any local government,
18 and without any other proceedings or the happening of any
19 conditions or things other than those proceedings, conditions,
20 or things that are specifically required by this act and the
21 resolution authorizing the issuance of bonds or the trust
22 agreement securing them.
23 Section 16. Authority reporting requirement.--
24 (1) Any authority that issues any revenue bonds under
25 this act shall supply the Division of Bond Finance of the
26 State Board of Administration with a copy of the report
27 required in s. 103 of the Internal Revenue Code of 1954, as
28 amended, at the times required under that section.
29 (2) The Division of Bond Finance shall, upon receipt,
30 provide a copy of the information supplied under subsection
31 (1) to the Department of Education.
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Bill No. CS for SB 400
Amendment No.
1 Section 17. Covenants.--Any resolution authorizing the
2 issuance of bonds may contain any covenants the authority
3 considers advisable, including those provisions set forth in
4 section 13(4), and all those covenants constitute valid and
5 legally binding and enforceable contracts between the
6 authority and the bondholders, regardless of the time of
7 issuance thereof. The covenants may include, without
8 limitation, covenants concerning the disposition of the bond
9 proceeds, the use and disposition of project revenues, the
10 pledging of revenues and assessments, the obligations of the
11 authority with respect to the operation of the project and the
12 maintenance of adequate project revenues, the issuance of
13 additional bonds, the appointment, powers, and duties of
14 trustees and receivers, the acquisition of outstanding bonds
15 and obligations, restrictions on the establishing of competing
16 projects or facilities, restrictions on the sale or disposal
17 of the assets and property of the authority, the maintenance
18 of deposits to assure the payment of the bonds issued
19 hereunder, acceleration upon default, the execution of
20 necessary instruments, the procedure for amending or
21 abrogating covenants with the bondholders, and any other
22 covenants considered necessary for the security of the
23 bondholders.
24 Section 18. Validity of bonds; validation
25 proceedings.--Any bonds issued by the authority are
26 incontestable in the hands of bona fide purchasers or holders
27 for value and are not invalid because of any irregularity or
28 defect in the proceedings for the issue and sale thereof.
29 Before the issuance of any bonds, the authority shall publish
30 a notice at least once in a newspaper or newspapers published
31 or of general circulation in the county or counties in the
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Bill No. CS for SB 400
Amendment No.
1 state in which the project will be located, stating the date
2 of adoption of the resolution authorizing the obligations, the
3 amount, maximum rate of interest, and maturity of the
4 obligations, and the purpose in general terms for which the
5 obligations are to be issued, and further stating that no
6 action or proceeding questioning the validity of the
7 obligations or of the proceedings authorizing the issuance
8 thereof, or of any covenants made therein, must be instituted
9 within 20 days after the first publication of the notice, or
10 the validity of the obligations, proceedings, and covenants
11 may not be thereafter questioned in any court. If no action or
12 proceeding is instituted within the 20-day period, then the
13 validity of the obligations, proceedings, and covenants is
14 conclusive, and all persons or parties whatsoever are forever
15 barred from questioning the validity of the obligations,
16 proceedings, or covenants in any court. Notwithstanding this
17 section, the bonds, notes, or other obligations issued by the
18 authority and the obligations of any participating
19 institution, or others providing credit for the obligations,
20 who may be before the jurisdiction of the court, must be
21 validated in the manner provided by chapter 75, Florida
22 Statutes, and the jurisdiction of the action may be in the
23 jurisdiction of the circuit court where the project is to be
24 located, or in the discretion of the authority, in the county
25 seat of state government.
26 Section 19. Act furnishes full authority for issuance
27 of bonds.--This act constitutes full authority for the
28 issuance of bonds and the exercise of the powers of the
29 authority provided in this act. Any bonds issued by the
30 authority are not secured by the full faith and credit of the
31 state and do not constitute an obligation, either general or
21
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Amendment No.
1 special, of the state.
2 Section 20. Security of bondholders.--In the
3 discretion of the authority any revenue bonds issued under
4 this act may be secured by a trust agreement by and between
5 the authority and a corporate trustee or trustees, which may
6 be any trust company or bank having the powers of a trust
7 company within or without the state. The trust agreement or
8 the resolution providing for the issuance of revenue bonds may
9 pledge or assign the revenues to be received or the proceeds
10 of any contract or contracts pledged and may convey or
11 mortgage the project or any portion thereof. The trust
12 agreement or resolution providing for the issuance of revenue
13 bonds may contain provisions for protecting and enforcing the
14 rights and remedies of the bondholders as may be reasonable
15 and proper and not in violation of law, including particularly
16 those provisions specifically authorized by this act to be
17 included in any resolution of the authority authorizing
18 revenue bonds. Any bank or trust company incorporated under
19 the laws of this state or of any other state or the United
20 States which may legally act as depository of the proceeds of
21 bonds or of revenues or other moneys or security may furnish
22 indemnifying bonds or pledge securities required by the
23 authority, if any. Any trust agreement may set forth the
24 rights and remedies of the bondholders and of the trustee or
25 trustees, and may restrict the individual right of action by
26 bondholders. In addition any trust agreement or resolution may
27 contain any other provisions the authority may consider
28 reasonable and proper for the security of the bondholders. All
29 expenses incurred in carrying out the trust agreement or
30 resolution may be treated as a part of the cost of the
31 operation of a project.
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SENATE AMENDMENT
Bill No. CS for SB 400
Amendment No.
1 Section 21. Payment of bonds.--Revenue bonds issued
2 under this act may not be considered to constitute a debt or
3 liability of the authority, any municipality, the state or any
4 political subdivision thereof or a pledge of the faith and
5 credit of the state, of the authority, of any municipality or
6 of any political subdivision, but are payable solely from
7 revenues of the authority pertaining to the project relating
8 to the issue; payments by participating institutions of higher
9 education, banks, insurance companies, or others under letters
10 of credit or purchase agreements; investment earnings from
11 funds or accounts maintained under the bond resolution;
12 insurance proceeds; loan funding deposits; proceeds of sales
13 of education loans; proceeds of refunding obligations; and
14 fees, charges, and other revenues of the authority from the
15 project. All revenue bonds must contain on the face thereof a
16 statement to the effect that neither the authority, any
17 municipality, the state, nor any political subdivision thereof
18 is obligated to pay the bond or the interest thereon except
19 from revenues of the project or the portion thereof for which
20 they are issued, and that neither the faith and credit nor the
21 taxing power of the authority, any municipality, the state, or
22 any political subdivision thereof is pledged to the payment of
23 the principal of or the interest on the bonds. The issuance of
24 revenue bonds under this act may not directly or indirectly or
25 contingently obligate the authority, any municipality, the
26 state, or any political subdivision thereof to levy or to
27 pledge any form of taxation therefor or to make any
28 appropriation for their payment.
29 Section 22. Rates, rents, fees, and charges.--
30 (1) The authority may fix, revise, charge, and collect
31 rates, rents, fees, and charges for the use of and for the
23
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Amendment No.
1 services furnished or to be furnished by each project and may
2 contract with any person, partnership, association or
3 corporation, or other body, public or private, in respect
4 thereof. The rates, rents, fees, and charges must be fixed and
5 adjusted in respect of the aggregate of rates, rents, fees,
6 and charges from the project so as to provide funds sufficient
7 with other revenues, if any:
8 (a) To pay the cost of maintaining, repairing, and
9 operating the project and each portion thereof, to the extent
10 that the payment of the cost has not otherwise been adequately
11 provided for.
12 (b) To pay the principal of and the interest on
13 outstanding revenue bonds of the authority issued in respect
14 of the project as the bonds become due and payable.
15 (c) To create and maintain reserves required or
16 provided for in any resolution authorizing, or trust agreement
17 securing, the revenue bonds of the authority. The rates,
18 rents, fees, and charges are not subject to supervision or
19 regulation by any department, commission, board, body, bureau,
20 or agency of this state other than the authority.
21 (2) A sufficient amount of the revenues derived in
22 respect of a project, except the part of the revenues
23 necessary to pay the cost of maintenance, repair, and
24 operation and to provide reserves and for renewals,
25 replacements, extensions, enlargements, and improvements
26 provided for in the resolution authorizing the issuance of any
27 revenue bonds of the authority or in the trust agreement
28 securing them must be set aside at regular intervals as
29 provided in the resolution or trust agreement in a sinking or
30 other similar fund that is hereby pledged to, and charged
31 with, the payment of the principal of and the interest on the
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SENATE AMENDMENT
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Amendment No.
1 revenue bonds as they become due and the redemption price or
2 the purchase price of bonds retired by call or purchase as
3 therein provided. The pledge must be valid and binding from
4 the time when the pledge is made; the rates, rents, fees,
5 charges, and other revenues or other moneys so pledged and
6 thereafter received by the authority must immediately be
7 subject to the lien of the pledge without any physical
8 delivery thereof or further act, and the lien of any pledge is
9 valid and binding as against all parties having claims of any
10 kind in tort, contract, or otherwise against the authority,
11 irrespective of whether the parties have notice thereof.
12 Neither the resolution nor any trust agreement by which a
13 pledge is created need be filed or recorded except in the
14 records of the authority.
15 (3) The use and disposition of moneys to the credit of
16 a sinking or other similar fund must be subject to the
17 resolution authorizing the issuance of the bonds or of the
18 trust agreement. Except as may otherwise be provided in the
19 resolution or the trust agreement, the sinking or other
20 similar fund must be a fund for all revenue bonds issued to
21 finance projects at a particular institution for higher
22 education without distinction or priority of one over another.
23 However, the authority in any resolution or trust agreement
24 may provide that the sinking or other similar fund be the fund
25 for a particular project at an institution for higher
26 education and for the revenue bonds issued to finance a
27 particular project, and may, additionally, permit and provide
28 for the issuance of revenue bonds having a subordinate lien in
29 respect of the security authorized to other revenue bonds of
30 the authority, and, in such case, the authority may create
31 separate sinking or other similar funds in respect of the
25
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SENATE AMENDMENT
Bill No. CS for SB 400
Amendment No.
1 subordinate lien bonds.
2 Section 23. Trust funds.--All moneys received under
3 the authority of this act, whether as proceeds from the sale
4 of bonds or as revenues, are considered to be trust funds to
5 be held and applied solely as provided in this act. Any
6 officer with whom, or any bank or trust company with which,
7 the moneys are deposited shall act as trustee of the moneys
8 and shall hold and apply them for the purposes of this act,
9 subject to the regulations this act and the resolution
10 authorizing the bonds of any issue or the trust agreement
11 securing the bonds provides.
12 Section 24. Remedies of bondholders.--Any holder of
13 revenue bonds issued under this act or any of the coupons
14 appertaining thereto, and the trustee or trustees under any
15 trust agreement, except to the extent the rights given may be
16 restricted by any resolution authorizing the issuance of, or
17 any such trust agreement securing, the bonds, may, either at
18 law or in equity, by suit, action, mandamus, or other
19 proceedings, protect and enforce any rights under the laws of
20 the state or granted hereunder or under the resolution or
21 trust agreement, and may enforce and compel the performance of
22 all duties required by this act or by the resolution or trust
23 agreement to be performed by the authority or by any officer,
24 employee, or agent thereof, including the fixing, charging,
25 and collecting of the rates, rents, fees, and charges
26 authorized and required by the provisions of the resolution or
27 trust agreement to be fixed, established, and collected.
28 Section 25. Tax exemption.--The exercise of the powers
29 granted by this act will be in all respects for the benefit of
30 the people of this state, for the increase of their commerce,
31 education, welfare, and prosperity, and for the improvement of
26
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SENATE AMENDMENT
Bill No. CS for SB 400
Amendment No.
1 their health and living conditions, and because the operation
2 and maintenance of a project by the authority or its agent or
3 the owner or lessee thereof, as authorized in this act, will
4 constitute the performance of an essential public function,
5 neither the authority nor its agent is required to pay any
6 taxes or assessments upon or in respect of a project or any
7 property acquired or used by the authority or its agent under
8 the provisions of this act or upon the income therefrom, and
9 any bonds issued under this act, any security therefor, their
10 transfer, and the income therefrom, including any profit made
11 on the sale thereof, and all notes, mortgages, security
12 agreements, letters of credit, or other instruments that arise
13 out of or are given to secure the repayment of bonds issued in
14 connection with a project financed under this part, shall at
15 all times be free from taxation by the state or any local
16 unit, political subdivision, or other instrumentality of the
17 state. The exemption granted by this section is not applicable
18 to any tax imposed by chapter 220, Florida Statutes, on
19 interest, income, or profits or on debt obligations owned by
20 corporations.
21 Section 26. Refunding bonds.--
22 (1) The authority may provide for the issuance of
23 revenue bonds of the authority for the purpose of refunding
24 any revenue bonds of the authority then outstanding, including
25 the payment of any redemption premium thereon and any interest
26 accrued or to accrue to the earliest or subsequent date of
27 redemption, purchase, or maturity of the revenue bonds, and,
28 if considered advisable by the authority, for the additional
29 purpose of paying all or any part of the cost of constructing
30 and acquiring additions, improvements, extensions, or
31 enlargements of a project or any portion thereof.
27
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SENATE AMENDMENT
Bill No. CS for SB 400
Amendment No.
1 (2) The proceeds of any revenue bonds issued for the
2 purpose of refunding outstanding revenue bonds may be applied
3 to the purchase or retirement at maturity or redemption of the
4 outstanding revenue bonds either on their earliest or any
5 subsequent redemption date or upon the purchase or at the
6 maturity thereof and may, pending the application, be placed
7 in escrow to be applied to the purchase or retirement at
8 maturity or redemption on the date as may be determined by the
9 authority.
10 (3) Any escrowed proceeds, pending use, may be
11 invested and reinvested in direct obligations of the United
12 States of America, or in certificates of deposit or time
13 deposits secured by direct obligations of the United States,
14 or other investments as the resolution authorizing the
15 issuance and sale of the bonds, or the trust agreement, may
16 provide, maturing at the time or times as shall be appropriate
17 to assure the prompt payment, as to principal, interest, and
18 redemption premium, if any, of the outstanding revenue bonds
19 to be so refunded. The interest, income, and profits, if any,
20 earned or realized on any such investment may also be applied
21 to the payment of the outstanding revenue bonds to be so
22 refunded. After the terms of the escrow have been fully
23 satisfied and carried out, any balance of the proceeds and
24 interest, income and profits, if any, earned or realized on
25 the investments thereof may be returned to the authority or to
26 the participating institution for use by it in any lawful
27 manner.
28 (4) The portion of the proceeds of any revenue bonds
29 issued for the additional purpose of paying all or any part of
30 the cost of constructing and acquiring additions,
31 improvements, extensions, or enlargements of a project may be
28
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SENATE AMENDMENT
Bill No. CS for SB 400
Amendment No.
1 invested and reinvested in direct obligations of the United
2 States, or in certificates of deposit or time deposits secured
3 by direct obligations of the United States, or other
4 investments as the resolution authorizing the issuance and
5 sale of the bonds, or the trust agreement, may provide,
6 maturing not later than the time or times when the proceeds
7 will be needed for the purpose of paying all or any part of
8 the cost. The interest, income, and profits, if any, earned or
9 realized on the investment may be applied to the payment of
10 all or any part of the cost or may be used by the authority or
11 the participating institution in any lawful manner.
12 (5) All refunding revenue bonds are subject to this
13 act in the same manner and to the same extent as other revenue
14 bonds issued under this act.
15 Section 27. Legal investment.--Bonds issued by the
16 authority under this act are made securities in which all
17 public officers and public bodies of the state and its
18 political subdivisions, all insurance companies, trust
19 companies, banking associations, investment companies,
20 executors, administrators, trustees, and other fiduciaries may
21 properly and legally invest funds, including capital in their
22 control or belonging to them. The bonds are made securities
23 that may properly and legally be deposited with and received
24 by any state or municipal officer or any agency or political
25 subdivision of the state for any purpose for which the deposit
26 of bonds or obligations of the state is now or may hereafter
27 be authorized by law.
28 Section 28. Reports.--Within the first 90 days of each
29 calendar year, the authority shall make a report to the
30 Department of Education of its activities for the preceding
31 calendar year. Each report must set forth a complete operating
29
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SENATE AMENDMENT
Bill No. CS for SB 400
Amendment No.
1 and financial statement covering its operations during the
2 year. The authority shall cause an audit of its books and
3 accounts to be made at least once each year by a certified
4 public accountant and the cost of the audit shall be paid by
5 the authority from funds available to it under this act.
6 Section 29. State agreement.--The state agrees with
7 the holders of any obligations issued under this act, and with
8 those parties who may enter into contracts with the authority
9 under this act, that the state will not limit or alter the
10 rights vested in the authority until the obligations, together
11 with the interest thereon, are fully met and discharged and
12 the contracts are fully performed on the part of the
13 authority. However, this act does not preclude any limitation
14 or alteration if adequate provision is made by law for the
15 protection of the holders of the obligations of the authority
16 or those entering into contracts with the authority. The
17 authority is authorized to include this pledge and undertaking
18 for the state in any obligations or contracts.
19 Section 30. Alternative means.--This act provides an
20 additional and alternative method for the doing of the things
21 authorized, and shall be regarded as supplemental and
22 additional to powers conferred by other laws; but the issuance
23 of notes, certificates of participation, revenue bonds, and
24 revenue refunding bonds under this act need not comply with
25 the requirements of any other law applicable to the issuance
26 of bonds or such obligations. Except as otherwise expressly
27 provided in this act, the powers granted to the authority
28 under this act are not subject to the supervision or
29 regulation of, or require the approval or consent of, any
30 municipality or political subdivision or any commission,
31 board, body, bureau, official, or agency thereof or of the
30
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SENATE AMENDMENT
Bill No. CS for SB 400
Amendment No.
1 state.
2 Section 31. Liberal construction.--This act shall be
3 liberally construed to effectively carry out its purposes.
4 Section 32. Act controlling.--To the extent that this
5 act is inconsistent with any general statute or special act or
6 parts thereof, this act controls.
7 Section 33. Subsection (5) of section 196.012, Florida
8 Statutes, is amended to read:
9 196.012 Definitions.--For the purpose of this chapter,
10 the following terms are defined as follows, except where the
11 context clearly indicates otherwise:
12 (5) "Educational institution" means a federal, state,
13 parochial, church, or private school, college, or university
14 conducting regular classes and courses of study required for
15 eligibility to certification by, accreditation to, or
16 membership in the State Department of Education of Florida,
17 Southern Association of Colleges and Schools, or the Florida
18 Council of Independent Schools; a nonprofit private school the
19 principal activity of which is conducting regular classes and
20 courses of study accepted for continuing postgraduate dental
21 education credit by a board of the Division of Medical Quality
22 Assurance; educational direct-support organizations created
23 pursuant to ss. 229.8021, 240.299, and 240.331; and facilities
24 located on the property of eligible entities which will become
25 owned by those entities on a date certain; and institutions of
26 higher education as defined under and participating in the
27 Higher Educational Facilities Financing Act created pursuant
28 to chapter 2000- , Laws of Florida.
29
30 (Redesignate subsequent sections.)
31
31
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Bill No. CS for SB 400
Amendment No.
1 ================ T I T L E A M E N D M E N T ===============
2 And the title is amended as follows:
3 On page 1, line 10, after the semicolon
4
5 insert:
6 providing findings and declarations; creating
7 the Higher Educational Facilities Financing
8 Authority; providing for its powers; providing
9 for criteria for and covenants relating to the
10 authorization of the issuance of notes and
11 revenue bonds not obligating the full faith and
12 credit of the authority, any municipality, the
13 state, or any political subdivision thereof;
14 providing for loans from revenue bonds to
15 participating institutions; requiring
16 bond-validation proceedings; providing for
17 trust funds and remedies of bondholders;
18 providing for a tax exemption; providing for
19 agreement of the state; providing other powers
20 and authorities incident thereto; requiring
21 reports and audits; amending s. 196.012, F.S.;
22 providing that institutions funded by this act
23 are educational institutions for purposes of
24 state taxation;
25
26
27
28
29
30
31
32
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