Senate Bill sb1366

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    Florida Senate - 2005                                  SB 1366

    By Senator Constantine





    22-1258C-05

  1                      A bill to be entitled

  2         An act relating to storm infrastructure

  3         recovery; creating s. 366.8260, F.S.; providing

  4         definitions; authorizing electric utilities to

  5         petition the Florida Public Service Commission

  6         for certain financing orders for certain

  7         storm-recovery purposes; providing

  8         requirements; providing powers and duties of

  9         the commission in issuing such orders;

10         specifying procedures and requirements for the

11         commission in issuing financing orders;

12         authorizing electric utilities to create

13         storm-recovery property; providing for pledge

14         of storm-recovery property to secure

15         storm-recovery bonds; providing for retirement

16         of storm-recovery bonds under certain

17         circumstances; providing for judicial review of

18         such orders; providing for effect of such

19         orders; providing exceptions to commission

20         jurisdiction to issue financing orders;

21         providing limitations; prohibiting the

22         commission from requiring use of storm-recovery

23         bonds for certain purposes; specifying duties

24         of electric utilities; specifying properties,

25         requirements, permissible activities, and

26         limitations relating to storm-recovery property

27         under certain circumstances; providing for

28         security interests in storm-recovery property;

29         providing for perfecting security interests in

30         storm-recovery property; providing for priority

31         of and resolution of conflicting interests;

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 1         providing requirements, procedures, and

 2         limitations for sale, assignment, or transfer

 3         of storm-recovery property; providing

 4         requirements for descriptions or indications of

 5         storm-recovery property transferred, granted,

 6         or pledged, or indicated in a financing

 7         statement; subjecting financing statements to

 8         certain provisions of law; specifying that

 9         storm-recovery bonds are not public debt;

10         specifying storm-recovery bonds as legal

11         investments for certain entities; specifying

12         certain state pledges relating to bondholders;

13         providing a tax exemption for certain revenues

14         collected by electric utilities under certain

15         circumstances; declaring certain entities as

16         not electric utilities under certain

17         circumstances; specifying effect of certain

18         provisions in situations of conflict; providing

19         for protecting validity of certain bonds under

20         certain circumstances; limiting commission

21         authority to issue certain financing orders

22         after a time certain; amending s. 679.1091,

23         F.S.; specifying nonapplication of secured

24         transactions provisions of the Uniform

25         Commercial Code to interests in storm-recovery

26         property; providing an effective date.

27  

28  Be It Enacted by the Legislature of the State of Florida:

29  

30         Section 1.  Section 366.8260, Florida Statutes, is

31  created to read:

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 1         366.8260  Storm-recovery financing.--

 2         (1)  DEFINITIONS.--As used in this section, the term:

 3         (a)  "Ancillary agreement" means any bond, insurance

 4  policy, letter of credit, reserve account, surety bond, swap

 5  arrangement, hedging arrangement, liquidity or credit support

 6  arrangement, or other financial arrangement entered into in

 7  connection with the issuance of storm-recovery bonds.

 8         (b)  "Assignee" means any entity, including, but not

 9  limited to, a corporation, limited liability company,

10  partnership or limited partnership, public authority, trust,

11  financing entity, or other legally recognized entity to which

12  an electric utility assigns, sells, or transfers, other than

13  as security, all or a portion of its interest in or right to

14  storm-recovery property. The term also includes any entity to

15  which an assignee assigns, sells, or transfers, other than as

16  security, its interest in or right to storm-recovery property.

17         (c)  "Commission" means the Florida Public Service

18  Commission.

19         (d)  "Electric utility" or "utility" has the same

20  meaning as that provided in s. 366.8255.

21         (e)  "Financing costs" means:

22         1.  Interest and acquisition, defeasance, or redemption

23  premiums that are payable on storm-recovery bonds;

24         2.  Any payment required under an ancillary agreement;

25         3.  Any other cost related to issuing, supporting,

26  repaying, and servicing storm-recovery bonds, including, but

27  not limited to, servicing fees, accounting and auditing fees,

28  trustee fees, legal fees, consulting fees, administrative

29  fees, placement and underwriting fees, capitalized interest,

30  rating agency fees, stock exchange listing and compliance

31  

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 1  fees, and filing fees, including costs related to obtaining

 2  the financing order;

 3         4.  Any taxes and license fees imposed on the revenues

 4  generated from the collection of storm-recovery charges; or

 5         5.  Any income taxes resulting from the collection of

 6  storm-recovery charges net of tax deductions.

 7         (f)  "Financing order" means an order under subsection

 8  (2) which allows for the issuance of storm-recovery bonds, the

 9  imposition, collection, and periodic adjustments of

10  storm-recovery charges, and the creation of storm-recovery

11  property.

12         (g)  "Financing party" means holders of storm-recovery

13  bonds and trustees, collateral agents, or other persons acting

14  for the benefit of holders of storm-recovery bonds.

15         (h)  "Financing statement" has the same meaning as that

16  provided in Article 9 of the Uniform Commercial Code.

17         (i)  "Pledgee" means a financing party to which an

18  electric utility or its successors or assignees mortgages,

19  negotiates, hypothecates, pledges, or creates a security

20  interest or lien on all or any portion of its interest in or

21  right to storm-recovery property.

22         (j)  "Storm" means a named tropical storm or hurricane

23  that occurred during calendar year 2004 or thereafter.

24         (k)  "Storm-recovery activity" means any activity or

25  activities by or on behalf of an electric utility in

26  connection with the restoration of service associated with

27  electric power outages affecting customers of an electric

28  utility as the result of a storm or storms, including, but not

29  limited to, mobilization, staging, and construction,

30  reconstruction, replacement, or repair of electric generation,

31  transmission, or distribution facilities.

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 1         (l)  "Storm-recovery bonds" means bonds, debentures,

 2  notes, certificates of participation, certificates of

 3  beneficial interest, certificates of ownership, or other

 4  evidences of indebtedness or ownership that are issued by an

 5  electric utility or an assignee pursuant to and in compliance

 6  with a financing order, the proceeds of which are used

 7  directly or indirectly to recover, finance, or refinance

 8  commission-approved storm-recovery costs, financing costs,

 9  costs to replenish the storm-recovery reserve to the level

10  that existed before the storm or storms, or such other level

11  as the commission may authorize in a financing order, and that

12  are secured by or payable from storm-recovery property.

13         (m)  "Storm-recovery charge" means the amounts

14  authorized by the commission to recover, finance, or refinance

15  storm-recovery costs, financing costs, costs to replenish the

16  storm-recovery reserve to the level that existed before the

17  storm or storms, or such other level as the commission may

18  authorize in a financing order, or as provided for in a

19  financing order to be imposed on all customer bills and

20  collected by an electric utility or its successors or

21  assignees, or a collection agent, in full through a charge

22  that is separate and apart from the electric utility's base

23  rates, which charge shall be paid by all customers receiving

24  transmission or distribution service from the electric utility

25  or its successors or assignees under commission-approved rate

26  schedules or under special contracts, even if the customer

27  elects to purchase electricity from an alternative electricity

28  supplier following a fundamental change in regulation of

29  public utilities in this state.

30         (n)  "Storm-recovery costs" means, at the option and

31  request of the electric utility, and as approved by the

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 1  commission pursuant to sub-subparagraph (2)(b)1.b., costs

 2  incurred or to be incurred by an electric utility in

 3  undertaking a storm-recovery activity, net of applicable

 4  insurance proceeds and normal capital replacement costs, which

 5  may include the costs to finance any deficiency or

 6  deficiencies in storm-recovery reserves until such time as

 7  storm-recovery bonds are issued, and costs of retiring any

 8  existing indebtedness relating to storm-recovery activities.

 9         (o)  "Storm-recovery property" means:

10         1.  All rights and interests of an electric utility or

11  successor or assignee of the electric utility under a

12  financing order, including the right to impose, bill, collect,

13  and receive storm-recovery charges authorized in the financing

14  order and to obtain periodic adjustments to such charges as

15  provided in the financing order.

16         2.  All revenues, collections, claims, rights to

17  payments, payments, money, or proceeds arising from the rights

18  and interests specified in subparagraph 1., regardless of

19  whether such revenues, collections, claims, rights to payment,

20  payments, money, or proceeds are imposed, billed, received,

21  collected, or maintained together with or commingled with

22  other revenues, collections, rights to payment, payments,

23  money, or proceeds.

24         (p)  "Storm-recovery reserve" means an electric utility

25  storm reserve or such other similar reserve established by law

26  or rule or pursuant to order of the commission.

27         (q)  "Uniform Commercial Code" has the same meaning as

28  that provided in s. 671.101.

29         (2)  FINANCING ORDERS.--

30  

31  

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 1         (a)  An electric utility may petition the commission

 2  for a financing order. For each petition, the electric utility

 3  shall:

 4         1.  Describe the storm-recovery activities that the

 5  electric utility has undertaken or proposes to undertake and

 6  describe the reasons for undertaking the activities.

 7         2.  Set forth the known storm-recovery costs and

 8  estimate the costs of any storm-recovery activities that are

 9  not completed, or for which the costs are not yet known, as

10  identified and requested by the electric utility.

11         3.  Set forth the amount of storm-recovery reserve that

12  the utility has determined would be appropriate to recover

13  through storm-recovery bonds and is seeking to so recover and

14  the amount of storm-recovery reserves that the utility is

15  funding or will seek to fund through other means, together

16  with a description of the factors and calculations used in

17  determining the amounts and methods of recovery.

18         4.  Indicate whether the electric utility proposes to

19  finance all or a portion of the storm-recovery costs and the

20  storm-recovery reserve with storm-recovery bonds. If the

21  electric utility proposes to finance a portion of such costs,

22  the electric utility shall identify that portion in the

23  petition.

24         5.  Estimate the financing costs related to the

25  storm-recovery bonds proposed under subparagraph 4.

26         6.  Estimate the storm-recovery charges necessary to

27  recover the storm-recovery costs, financing costs, and

28  storm-recovery reserve and the period for recovery of such

29  costs.

30         7.  Estimate any cost savings or demonstrate how it

31  would avoid or significantly mitigate rate impacts to

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 1  customers resulting from financing storm-recovery costs with

 2  storm-recovery bonds as opposed to the traditional method of

 3  recovering such costs from customers and through alternative

 4  financing methods available to the electric utility.

 5         8.  File with the petition direct testimony supporting

 6  the petition.

 7         (b)1.  Proceedings on a petition submitted pursuant to

 8  paragraph (a) shall begin with a petition by an electric

 9  utility and shall be disposed of in accordance with the

10  provisions of chapter 120 and applicable rules, except that

11  the provisions of this section, to the extent applicable,

12  shall control.

13         a.  Within 7 days after the filing of a petition, the

14  commission shall publish a case schedule, which schedule shall

15  place the matter before the commission on an agenda that will

16  permit a commission decision no later than 120 days after the

17  date the petition is filed.

18         b.  No later than 135 days after the date the petition

19  is filed, the commission shall issue a financing order or an

20  order rejecting the petition. A party to the commission

21  proceeding may petition the commission for reconsideration of

22  the financing order within 5 days after the date of its

23  issuance. The commission shall issue a financing order

24  authorizing financing of reasonable and prudent storm-recovery

25  costs, financing costs, and the storm-recovery reserve amount

26  determined appropriate by the commission if the commission

27  finds that the issuance of the storm-recovery bonds and the

28  imposition of storm-recovery charges authorized by the order

29  are reasonably expected to result in lower overall costs or

30  would avoid or significantly mitigate rate impacts to

31  customers as compared with alternative methods of financing or

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 1  recovering storm-recovery costs and storm-recovery reserves.

 2  Any determination of whether storm-recovery costs are

 3  reasonable and prudent shall be made with reference to the

 4  general public interest in, and the scope of effort required

 5  to provide, the safe and expeditious restoration of electric

 6  service.

 7         2.  In a financing order issued to an electric utility,

 8  the commission shall:

 9         a.  Except as provided in sub-subparagraph f. and in

10  subparagraphs 4. and 5., specify the amount of storm-recovery

11  costs and the level of storm-recovery reserves, taking into

12  consideration any other methods used to recover these costs,

13  and describe and estimate the amount of financing costs which

14  may be recovered through storm-recovery charges; specify

15  whether these costs should be allocated among the utility and

16  its ratepayers and, if so, the amount of each cost to be

17  recovered through the financing order; and specify the period

18  over which such costs may be recovered.

19         b.  Determine that the proposed structuring, expected

20  pricing, and financing costs of the storm-recovery bonds are

21  reasonably expected to result in lower overall costs or would

22  avoid or significantly mitigate rate impacts to customers as

23  compared with alternative methods of financing or recovering

24  storm-recovery costs.

25         c.  Ensure that the marketing, structuring, pricing,

26  and financing costs of the storm-recovery bonds will result in

27  the lowest cost funds and the lowest storm-recovery charges

28  that are consistent with market conditions and the terms of

29  the financing order.

30         d.  Provide that, for the period specified pursuant to

31  sub-subparagraph a., the imposition and collection of

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 1  storm-recovery charges authorized in the financing order shall

 2  be paid by all customers receiving transmission or

 3  distribution service from the electric utility or its

 4  successors or assignees under commission-approved rate

 5  schedules or under special contracts, even if the customer

 6  elects to purchase electricity from an alternative electric

 7  supplier following a fundamental change in regulation of

 8  public utilities in the state.

 9         e.  Determine what portion, if any, of the

10  storm-recovery reserves must be held in a funded reserve and

11  any limitations on how the reserve may be held, accessed, or

12  used.

13         f.  Include a formula-based mechanism for making

14  expeditious periodic adjustments in the storm-recovery charges

15  that customers are required to pay under the financing order

16  and for making any adjustments that are necessary to correct

17  for any overcollection or undercollection of the charges or to

18  otherwise ensure the timely payment of storm-recovery bonds

19  and financing costs and other required amounts and charges

20  payable in connection with the storm-recovery bonds.

21         g.  Specify the storm-recovery property that is, or

22  shall be, created in favor of an electric utility or its

23  successors or assignees and that shall be used to pay or

24  secure storm-recovery bonds and financing costs.

25         h.  Specify the degree of flexibility to be afforded to

26  the electric utility in establishing the terms and conditions

27  of the storm-recovery bonds, including, but not limited to,

28  repayment schedules, interest rates, and other financing

29  costs.

30         i.  Provide that storm-recovery charges be allocated to

31  the customer classes using the criteria set out in s.

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 1  366.06(1), in the manner in which these costs or their

 2  equivalent were allocated in the cost-of-service study

 3  approved in connection with the electric utility's last rate

 4  case. If the electric utility's last rate case was resolved by

 5  a settlement agreement, the cost-of-service methodology filed

 6  by the electric utility in that case may be used.

 7         j.  Provide that, after the final terms of an issuance

 8  of storm-recovery bonds have been established and prior to the

 9  issuance of storm-recovery bonds, the electric utility shall

10  determine the resulting initial storm-recovery charge in

11  accordance with the financing order and such initial

12  storm-recovery charge shall be final and effective upon the

13  issuance of such storm-recovery bonds without further

14  commission action.

15         k.  Include any other conditions that the commission

16  considers appropriate and that are not otherwise inconsistent

17  with this section.

18  

19  In performing the responsibilities of this subparagraph and

20  subparagraph 5., the commission may engage outside consultants

21  or counsel. Any expenses associated with such services shall

22  be included as part of financing costs and included in

23  storm-recovery charges.

24         3.  A financing order issued to an electric utility may

25  provide that creation of the electric utility's storm-recovery

26  property pursuant to sub-subparagraph 2.g. is conditioned

27  upon, and shall be simultaneous with, the sale or other

28  transfer of the storm-recovery property to an assignee and the

29  pledge of the storm-recovery property to secure storm-recovery

30  bonds.

31  

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 1         4.  If the commission issues a financing order, the

 2  electric utility shall file with the commission at least

 3  biannually a petition or a letter applying the formula-based

 4  mechanism pursuant to sub-subparagraph 2.f. and, based on

 5  estimates of consumption for each rate class and other

 6  mathematical factors, requesting administrative approval to

 7  make the adjustments described in sub-subparagraph 2.f. The

 8  review of such a request shall be limited to determining

 9  whether there is any mathematical error in the application of

10  the formula-based mechanism relating to the appropriate amount

11  of any overcollection or undercollection of storm-recovery

12  charges and the amount of an adjustment. Such adjustments

13  shall ensure the recovery of revenues sufficient to provide

14  for the payment of storm-recovery costs, financing costs, and

15  costs of replenishing the storm-recovery reserve. Within 60

16  days after receiving an electric utility's request pursuant to

17  this paragraph, the commission shall either approve the

18  request or inform the electric utility of any mathematical

19  errors in its calculation. If the commission informs the

20  utility of mathematical errors in its calculation, the utility

21  may correct its error and refile its request. The timeframes

22  previously described in this paragraph shall apply to a

23  refiled request.

24         5.  If the commission issues a financing order, after

25  all actual storm-recovery costs and financing costs have been

26  incurred and totaled, the commission must review these actual

27  costs and adjust the amount of storm-recovery charges

28  accordingly. If actual costs are less than estimated costs,

29  the commission must reduce the amount of storm-recovery

30  charges accordingly. If the electric utility seeks to recover

31  actual storm-recovery costs or financing costs in excess of

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 1  the estimated costs, the commission must review each element

 2  of the actual costs to ensure that the cost was prudent and

 3  reasonable and, as to financing costs, results in the lowest

 4  cost funds and the lowest storm-recovery charges that are

 5  consistent with market conditions and the terms of the

 6  financing order. The commission must then increase the amount

 7  of storm-recovery charges to include actual storm-recovery

 8  costs and financing costs that meet these approval criteria.

 9  This review shall be done at the time of the next regularly

10  scheduled adjustment in storm-recovery charges. If the

11  commission incurs any costs for outside consultants or counsel

12  in conducting this review, these costs shall be included in

13  the storm-recovery charges as well.

14         6.  Subsequent to the earlier of the transfer of

15  storm-recovery property to an assignee or the issuance of

16  storm-recovery bonds authorized thereby, a financing order is

17  irrevocable and, except as provided in subparagraphs 4. and 5.

18  and paragraph (c), the commission may not amend, modify, or

19  terminate the financing order by any subsequent action or

20  reduce, impair, postpone, terminate, or otherwise adjust

21  storm-recovery charges approved in the financing order. After

22  the issuance of a financing order, the electric utility

23  retains sole discretion regarding whether to assign, sell, or

24  otherwise transfer storm-recovery property or to cause the

25  storm-recovery bonds to be issued, including the right to

26  defer or postpone such assignment, sale, transfer, or

27  issuance.

28         (c)  At the request of an electric utility, the

29  commission may commence a proceeding and issue a subsequent

30  financing order that provides for retiring and refunding

31  storm-recovery bonds issued pursuant to the original financing

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 1  order if the commission finds that the subsequent financing

 2  order satisfies all of the criteria specified in paragraph

 3  (b). Effective on retirement of the refunded storm-recovery

 4  bonds and the issuance of new storm-recovery bonds, the

 5  commission shall adjust the related storm-recovery charges

 6  accordingly.

 7         (d)  Within 10 days after the commission issues an

 8  order pursuant to paragraph (b) or a decision denying a

 9  request for reconsideration or, if the request for

10  reconsideration is granted, within 10 days after the

11  commission issues its decision on reconsideration, an

12  adversely affected party may petition for judicial review in

13  the Florida Supreme Court. The petition for review shall be

14  served upon the executive director of the commission

15  personally or by service at the office of the commission.

16  Review on appeal shall be based solely on the record before

17  the commission and briefs to the court and shall be limited to

18  determining whether the order issued pursuant to paragraph

19  (b), or the order on reconsideration, conforms to the

20  constitution and laws of this state and the United States and

21  is within the authority of the commission under this section.

22  Inasmuch as delay in the determination of the appeal of a

23  financing order will delay the issuance of storm-recovery

24  bonds, thereby diminishing savings to customers which might be

25  achieved if such bonds were issued as contemplated by a

26  financing order, the Supreme Court shall proceed to hear and

27  determine the action as expeditiously as practicable and give

28  the action precedence over other matters not accorded similar

29  precedence by law.

30         (e)1.  A financing order remains in effect until the

31  storm-recovery bonds issued pursuant to the order have been

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 1  paid in full and the commission-approved financing costs of

 2  such bonds have been recovered in full.

 3         2.  A financing order issued to an electric utility

 4  shall remain in effect and unabated notwithstanding the

 5  reorganization, bankruptcy, or other insolvency proceedings of

 6  the electric utility or its successors or assignees.

 7         (3)  EXCEPTIONS TO COMMISSION JURISDICTION.--

 8         (a)  If the commission issues a financing order to an

 9  electric utility pursuant to this section, the commission may

10  not, in exercising its powers and carrying out its duties

11  regarding any matter within its authority pursuant to this

12  chapter, consider the storm-recovery bonds issued pursuant to

13  the order to be the debt of the electric utility other than

14  for federal income tax purposes, consider the storm-recovery

15  charges paid under the order to be the revenue of the electric

16  utility for any purpose, or consider the storm-recovery costs

17  or financing costs specified in the order to be the costs of

18  the electric utility, nor may the commission determine any

19  action taken by an electric utility which is consistent with

20  the order to be unjust or unreasonable.

21         (b)  The commission may not order or otherwise directly

22  or indirectly require an electric utility to use

23  storm-recovery bonds to finance any project, addition, plant,

24  facility, extension, capital improvement, equipment, or any

25  other expenditure, unless the electric utility has filed a

26  petition under paragraph (2)(a) to finance such expenditure

27  using storm-recovery bonds. The commission may not refuse to

28  allow an electric utility to recover costs for storm-recovery

29  activities in an otherwise permissible fashion, or refuse or

30  condition authorization or approval pursuant to s. 366.04 of

31  the issuance and sale by an electric utility of securities or

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 1  the assumption by it of liabilities or obligations, solely

 2  because of the potential availability of storm-recovery

 3  financing.

 4         (4)  ELECTRIC UTILITY DUTIES.--

 5         (a)  The electric bills of an electric utility that has

 6  obtained a financing order and issued storm-recovery bonds

 7  must explicitly reflect that a portion of the charges on such

 8  bill represents storm-recovery charges approved in a financing

 9  order issued to the electric utility and, if the

10  storm-recovery property has been transferred to an assignee,

11  must include a statement to the effect that the assignee is

12  the owner of the rights to storm-recovery charges and that the

13  electric utility or any other entity, if applicable, is acting

14  as a collection agent or servicer for the assignee. The tariff

15  applicable to customers must indicate the storm-recovery

16  charge and the ownership of that charge. The commission shall

17  determine whether to require electric utilities to include

18  such information or amounts owed with respect to the

19  storm-recovery property as a separate line item on individual

20  electric bills.

21         (b)  The failure of an electric utility to comply with

22  this subsection shall not invalidate, impair, or affect any

23  financing order, storm-recovery property, storm-recovery

24  charge, or storm-recovery bonds but shall subject the electric

25  utility to penalties under s. 366.095.

26         (5)  STORM-RECOVERY PROPERTY.--

27         (a)1.  All storm-recovery property that is specified in

28  a financing order shall constitute an existing, present

29  property right or interest therein, notwithstanding that the

30  imposition and collection of storm-recovery charges depends on

31  the electric utility to which the order is issued performing

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 1  its servicing functions relating to the collection of

 2  storm-recovery charges and on future electricity consumption.

 3  Such property shall exist whether or not the revenues or

 4  proceeds arising from the property have been billed, have

 5  accrued, or have been collected and notwithstanding the fact

 6  that the value or amount of the property is dependent on the

 7  future provision of service to customers by the electric

 8  utility or its successors or assignees.

 9         2.  Storm-recovery property specified in a financing

10  order shall continue to exist until the storm-recovery bonds

11  issued pursuant to the order are paid in full and all

12  financing costs and other costs of the bonds have been

13  recovered in full.

14         3.  All or any portion of storm-recovery property

15  specified in a financing order issued to an electric utility

16  may be transferred, sold, conveyed, or assigned to a successor

17  or assignee, including an affiliate or affiliates of the

18  electric utility created for the limited purpose of acquiring,

19  owning, or administering storm-recovery property or issuing

20  storm-recovery bonds under the financing order. All or any

21  portion of storm-recovery property may be pledged to secure

22  storm-recovery bonds issued pursuant to the order, amounts

23  payable to financing parties and to counterparties under any

24  ancillary agreements, and other financing costs. Each such

25  transfer, sale, conveyance, assignment, or pledge by an

26  electric utility or affiliate of an electric utility is

27  considered to be a transaction in the ordinary course of

28  business.

29         4.  If an electric utility defaults on any required

30  payment of charges arising from storm-recovery property

31  specified in a financing order, a court, upon application by

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 1  an interested party, and without limiting any other remedies

 2  available to the applying party, shall order the sequestration

 3  and payment of the revenues arising from the storm-recovery

 4  property to the financing parties. Any such order shall remain

 5  in full force and effect notwithstanding any reorganization,

 6  bankruptcy, or other insolvency proceedings with respect to

 7  the electric utility or its successors or assignees.

 8         5.  The interest of a transferee, purchaser, acquirer,

 9  assignee, or pledgee in storm-recovery property specified in a

10  financing order issued to an electric utility, and in the

11  revenue and collections arising from that property, is not

12  subject to setoff, counterclaim, surcharge, or defense by the

13  electric utility or any other person or in connection with the

14  reorganization, bankruptcy, or other insolvency of the

15  electric utility or any other entity.

16         6.  Any successor to an electric utility, whether

17  pursuant to any reorganization, bankruptcy, or other

18  insolvency proceeding or whether pursuant to any merger or

19  acquisition, sale, or other business combination, or transfer

20  by operation of law, as a result of electric utility

21  restructuring or otherwise, shall perform and satisfy all

22  obligations of, and have the same rights under a financing

23  order as, the electric utility under the financing order in

24  the same manner and to the same extent as the electric

25  utility, including collecting and paying to the person

26  entitled to receive the revenues, collections, payments, or

27  proceeds of the storm-recovery property.

28         (b)1.  Except as specified in this section, the Uniform

29  Commercial Code does not apply to storm-recovery property or

30  any right, title, or interest of a utility or assignee

31  described in subparagraph (1)(o)1., whether before or after

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 1  the issuance of the financing order. In addition, such right,

 2  title, or interest pertaining to a financing order, including,

 3  but not limited to, the associated storm-recovery property and

 4  any revenues, collections, claims, rights to payment,

 5  payments, money, or proceeds of or arising from storm-recovery

 6  charges pursuant to such order, shall not be deemed proceeds

 7  of any right or interest other than in the financing order and

 8  the storm-recovery property arising from the order.

 9         2.  The creation, attachment, granting, perfection, and

10  enforcement of liens and security interests in storm-recovery

11  property to secure storm-recovery bonds is governed solely by

12  this section and not by the Uniform Commercial Code.

13         3.  A valid, enforceable, and attached lien and

14  security interest in storm-recovery property may be created

15  only upon the later of:

16         a.  The issuance of a financing order;

17         b.  The execution and delivery of a security agreement

18  with a financing party in connection with the issuance of

19  storm-recovery bonds; or

20         c.  The receipt of value for the storm-recovery bonds.

21  

22  A valid, enforceable, and attached security interest shall be

23  perfected against third parties as of the date of filing of a

24  financing statement in the Florida Secured Transaction

25  Registry, as such registry is defined in Article 9 of the

26  Uniform Commercial Code, in accordance with subparagraph 4.,

27  and shall thereafter be a continuously perfected lien; and

28  such security interest in the storm-recovery property and all

29  proceeds of such storm-recovery property, whether or not

30  billed, accrued, or collected, and whether or not deposited

31  into a deposit account and however evidenced, shall have

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 1  priority in accordance with subparagraph 8. and take

 2  precedence over any subsequent judicial or other lien

 3  creditor. No continuation statement need be filed to maintain

 4  such perfection.

 5         4.  Financing statements required to be filed pursuant

 6  to this section shall be filed, maintained, and indexed in the

 7  same manner and in the same system of records maintained for

 8  the filing of financing statements in the Florida Secured

 9  Transaction Registry under Article 9 of the Uniform Commercial

10  Code. The filing of such a financing statement shall be the

11  only method of perfecting a lien or security interest on

12  storm-recovery property.

13         5.  The priority of a lien and security interest

14  perfected under this paragraph is not impaired by any later

15  modification of the financing order or storm-recovery property

16  or by the commingling of funds arising from storm-recovery

17  property with other funds, and any other security interest

18  that may apply to those funds shall be terminated as to all

19  funds transferred to a segregated account for the benefit of

20  an assignee or a financing party or to an assignee or

21  financing party directly.

22         6.  If a default or termination occurs under the terms

23  of the storm-recovery bonds, the financing parties or their

24  representatives may foreclose on or otherwise enforce their

25  lien and security interest in any storm-recovery property as

26  if they were a secured party under Article 9 of the Uniform

27  Commercial Code; and a court may order that amounts arising

28  from storm-recovery property be transferred to a separate

29  account for the financing parties' benefit, to which their

30  lien and security interest shall apply. On application by or

31  on behalf of the financing parties to a circuit court of this

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 1  state, such court shall order the sequestration and payment to

 2  the financing parties of revenues arising from the

 3  storm-recovery property.

 4         7.  The interest of a pledgee of an interest or any

 5  rights in any storm-recovery property is not perfected until

 6  filing as provided in subparagraph 4.

 7         8.  The priority of the conflicting interests of

 8  pledgees in the same interest or rights in any storm-recovery

 9  property is determined as follows:

10         a.  Conflicting perfected interests or rights of

11  pledgees rank according to priority in time of perfection.

12  Priority dates from the time a filing covering the interest or

13  right is made in accordance with this paragraph.

14         b.  A perfected interest or right of a pledgee has

15  priority over a conflicting unperfected interest or right of a

16  pledgee.

17         c.  A perfected interest or right of a pledgee has

18  priority over a person who becomes a lien creditor after the

19  perfection of such pledgee's interest or right.

20         (c)  The sale, assignment, or transfer of

21  storm-recovery property is governed by this paragraph. All of

22  the following apply to a sale, assignment, or transfer under

23  this paragraph:

24         1.  The sale, conveyance, assignment, or other transfer

25  of storm-recovery property by an electric utility to an

26  assignee that the parties have in the governing documentation

27  expressly stated to be a sale or other absolute transfer is an

28  absolute transfer and true sale of, and not a pledge of or

29  secured transaction relating to, the transferor's right,

30  title, and interest in, to, and under the storm-recovery

31  property, other than for federal and state income and

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 1  franchise tax purposes. After such a transaction, the

 2  storm-recovery property is not subject to any claims of the

 3  transferor or the transferor's creditors, other than creditors

 4  holding a prior security interest in the storm-recovery

 5  property perfected under paragraph (b).

 6         2.  The characterization of the sale, conveyance,

 7  assignment, or other transfer as a true sale or other absolute

 8  transfer under subparagraph 1. and the corresponding

 9  characterization of the transferee's property interest is not

10  affected by:

11         a.  Commingling of amounts arising with respect to the

12  storm-recovery property with other amounts.

13         b.  The retention by the transferor of a partial or

14  residual interest, including an equity interest, in the

15  storm-recovery property, whether direct or indirect, or

16  whether subordinate or otherwise.

17         c.  Any recourse that the transferee may have against

18  the transferor other than any such recourse created,

19  contingent upon, or otherwise occurring or resulting from one

20  or more of the transferor's customers' inability to timely pay

21  all or a portion of the storm-recovery charge.

22         d.  Any indemnifications, obligations, or repurchase

23  rights made or provided by the transferor, other than

24  indemnity or repurchase rights based solely upon a

25  transferor's customers' inability to timely pay all or a

26  portion of the storm-recovery charge.

27         e.  The responsibility of the transferor to collect

28  storm-recovery charges.

29         f.  The treatment of the sale, conveyance, assignment,

30  or other transfer for tax, financial reporting, or other

31  purposes.

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 1         g.  Granting or providing to holders of the

 2  storm-recovery bonds a preferred right to the storm-recovery

 3  property or credit enhancement by the electric utility or its

 4  affiliates with respect to the storm-recovery bonds.

 5         3.  Any right that an electric utility has in the

 6  storm-recovery property prior to its pledge, sale, or transfer

 7  or any other right created under this section or created in

 8  the financing order and assignable under this section or

 9  assignable pursuant to and in compliance with a financing

10  order shall be property in the form of a contract right.

11  Transfer of an interest in storm-recovery property to an

12  assignee is enforceable only upon the later of the issuance of

13  a financing order, the execution and delivery of transfer

14  documents to the assignee in connection with the issuance of

15  storm-recovery bonds, and the receipt of value. An enforceable

16  transfer of an interest in storm-recovery property to an

17  assignee shall be perfected against all third parties,

18  including subsequent judicial or other lien creditors, when a

19  notice of that transfer has been given by the filing of a

20  financing statement in accordance with subparagraph 4. The

21  transfer shall be perfected against third parties as of the

22  date of filing.

23         4.  Financing statements required to be filed under

24  this section shall be maintained and indexed in the same

25  manner and in the same system of records maintained for the

26  filing of financing statements in the Florida Secured

27  Transaction Registry under Article 9 of the Uniform Commercial

28  Code. The filing of such a financing statement shall be the

29  only method of perfecting a transfer of storm-recovery

30  property.

31  

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 1         5.  The priority of a transfer perfected under this

 2  section is not impaired by any later modification of the

 3  financing order or storm-recovery property or by the

 4  commingling of funds arising from storm-recovery property with

 5  other funds, and any other security interest that may apply to

 6  those funds shall be terminated when they are transferred to a

 7  segregated account for the assignee or a financing party. If

 8  storm-recovery property has been transferred to an assignee or

 9  financing party, any proceeds of that property shall be held

10  in trust for the assignee or financing party.

11         6.  The priority of the conflicting interests of

12  assignees in the same interest or rights in any storm-recovery

13  property is determined as follows:

14         a.  Conflicting perfected interests or rights of

15  assignees rank according to priority in time of perfection.

16  Priority dates from the time a filing covering the transfer is

17  made in accordance with subparagraph 4.

18         b.  A perfected interest or right of an assignee has

19  priority over a conflicting unperfected interest or right of

20  an assignee.

21         c.  A perfected interest or right of an assignee has

22  priority over a person who becomes a lien creditor after the

23  perfection of such assignee's interest or right.

24         (6)  DESCRIPTION OR INDICATION OF PROPERTY.--The

25  description of storm-recovery property being transferred to an

26  assignee in any sale agreement, purchase agreement, or other

27  transfer agreement, granted or pledged to a pledgee in any

28  security agreement, pledge agreement, or other security

29  document, or indicated in any financing statement is only

30  sufficient if such description or indication describes the

31  financing order that created the storm-recovery property and

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 1  states that such agreement or financing statement covers all

 2  or part of such property described in such financing order.

 3  This subsection applies to all purported transfers of, and all

 4  purported grants or liens or security interests in,

 5  storm-recovery property, regardless of whether the related

 6  sale agreement, purchase agreement, other transfer agreement,

 7  security agreement, pledge agreement, or other security

 8  document was entered into, or any financing statement was

 9  filed, before or after the effective date of this section.

10         (7)  FINANCING STATEMENTS.--All financing statements

11  referenced in this section shall be subject to Part 5 of

12  Article 9 of the Uniform Commercial Code except that the

13  requirement as to continuation statements shall not apply.

14         (8)  CHOICE OF LAW.--The law governing the validity,

15  enforceability, attachment, perfection, priority, and exercise

16  of remedies with respect to the transfer of an interest or

17  right or the pledge or creation of a security interest in any

18  storm-recovery property shall be the laws of this state, and

19  exclusively, the laws of this section.

20         (9)  STORM-RECOVERY BONDS NOT PUBLIC DEBT.--The state

21  or its political subdivisions are not liable on any

22  storm-recovery bonds, and the bonds are not a debt or a

23  general obligation of the state or any of its political

24  subdivisions, agencies, or instrumentalities. An issue of

25  storm-recovery bonds does not, directly or indirectly or

26  contingently, obligate the state or any agency, political

27  subdivision, or instrumentality of the state to levy any tax

28  or make any appropriation for payment of the bonds, other than

29  in their capacity as consumers of electricity. This subsection

30  shall in no way preclude bond guarantees or enhancements

31  pursuant to this section. All bonds must contain on the face

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 1  thereof a statement to the following effect: "Neither the full

 2  faith and credit nor the taxing power of the State of Florida

 3  is pledged to the payment of the principal of, or interest on,

 4  this bond."

 5         (10)  STORM-RECOVERY BONDS AS LEGAL INVESTMENTS WITH

 6  RESPECT TO INVESTORS THAT REQUIRE STATUTORY AUTHORITY

 7  REGARDING LEGAL INVESTMENT.--The following entities may

 8  legally invest any sinking funds, moneys, or other funds

 9  belonging to them or under their control in storm-recovery

10  bonds:

11         (a)  The state, the investment board, municipal

12  corporations, political subdivisions, public bodies, and

13  public officers except for members of the commission.

14         (b)  Banks and bankers, savings and loan associations,

15  credit unions, trust companies, savings banks and

16  institutions, investment companies, insurance companies,

17  insurance associations, and other persons carrying on a

18  banking or insurance business.

19         (c)  Personal representatives, guardians, trustees, and

20  other fiduciaries.

21         (d)  All other persons whatsoever who are now or may

22  hereafter be authorized to invest in bonds or other

23  obligations of a similar nature.

24         (11)  STATE PLEDGE.--

25         (a)  For purposes of this subsection, the term

26  "bondholder" means a person who holds a storm-recovery bond.

27         (b)  The state pledges to and agrees with bondholders,

28  the owners of the storm-recovery property, and other financing

29  parties that the state will not:

30  

31  

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 1         1.  Alter the provisions of this section which make the

 2  storm-recovery charges imposed by a financing order

 3  irrevocable, binding, and nonbypassable charges;

 4         2.  Take or permit any action that impairs or would

 5  impair the value of storm-recovery property; or

 6         3.  Except as allowed under this section, reduce,

 7  alter, or impair storm-recovery charges that are to be

 8  imposed, collected, and remitted for the benefit of the

 9  bondholders and other financing parties until any and all

10  principal, interest, premium, financing costs and other fees,

11  expenses, or charges incurred, and any contracts to be

12  performed, in connection with the related storm-recovery bonds

13  have been paid and performed in full.

14  

15  Nothing in this paragraph shall preclude limitation or

16  alteration if full compensation is made by law for the full

17  protection of the storm-recovery charges collected pursuant to

18  a financing order and of the holders of storm-recovery bonds

19  and any assignee or financing party entering into a contract

20  with the electric utility.

21         (c)  Any person or entity that issues storm-recovery

22  bonds may include the pledge specified in paragraph (b) in the

23  bonds and related documentation.

24         (12)  TAX EXEMPTION.--Revenues collected pursuant to a

25  financing order and transactions involving the transfer and

26  ownership of storm-recovery property and the receipt of

27  storm-recovery charges by an electric utility, or its

28  successors, assignees, or financing parties, shall not be

29  deemed to be income for purposes of chapter 220 or any local

30  income taxes, and shall be exempt from state and local sales,

31  franchise, gross receipts, and other taxes or similar charges.

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 1         (13)  NOT AN ELECTRIC UTILITY.--An assignee or

 2  financing party shall not be considered an electric utility or

 3  person providing electric service by virtue of engaging in the

 4  transactions described in this section.

 5         (14)  CONFLICTS.--In the event of conflict between this

 6  section and any other law regarding the attachment,

 7  assignment, or perfection, or the effect of perfection, or

 8  priority of, assignment or transfer of, or security interest

 9  in storm-recovery property, this section shall govern to the

10  extent of the conflict.

11         (15)  EFFECT OF INVALIDITY ON ACTIONS.--Effective on

12  the date that storm-recovery bonds are first issued under this

13  section, if any provision of this section is held to be

14  invalid or is invalidated, superseded, replaced, repealed, or

15  expires for any reason, that occurrence shall not affect the

16  validity of any action allowed under this section which is

17  taken by an electric utility, an assignee, a financing party,

18  a collection agent, or a party to an ancillary agreement; and

19  any such action shall remain in full force and effect with

20  respect to all storm-recovery bonds issued or authorized in a

21  financing order to be issued under this section prior to the

22  date that such provision is held to be invalid or is

23  invalidated, superseded, replaced, or repealed, or that

24  expires for any reason.

25         (16)  AUTHORITY.--Commission authority to issue

26  financing orders pursuant to this section shall apply only to

27  petitions filed pursuant to paragraph (2)(a) within 12 months

28  after the effective date of this section. The expiration of

29  the authority shall have no effect upon financing orders

30  adopted by the commission pursuant to this section; any

31  storm-recovery property arising therefrom; any charges

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 1  authorized to be levied thereunder; any rights, interests, and

 2  obligations of the electric utility, an assignee, or a

 3  financing party, holders of storm-recovery bonds, or parties

 4  to ancillary agreements pursuant to the financing order; or

 5  the authority of the commission to monitor, supervise, or take

 6  further action with respect to the order in accordance with

 7  the terms of this section and of the order.

 8         Section 2.  Paragraphs (m) and (n) of subsection (4) of

 9  section 679.1091, Florida Statutes, are amended, and paragraph

10  (o) is added to that subsection, to read:

11         679.1091  Scope.--

12         (4)  This chapter does not apply to:

13         (m)  An assignment of a deposit account, other than a

14  nonnegotiable certificate of deposit, in a consumer

15  transaction, but ss. 679.3151 and 679.322 apply with respect

16  to proceeds and priorities in proceeds; or

17         (n)  Any transfer by a government or governmental unit;

18  or

19         (o)  A transfer or pledge of, or creation of a security

20  interest in, any interest or right or portion of any interest

21  or right in any storm-recovery property as defined in s.

22  366.8260.

23         Section 3.  This act shall take effect upon becoming a

24  law.

25  

26  

27  

28  

29  

30  

31  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Authorizes electric utilities to petition the Florida
      Public Service Commission for financing orders to recover
 4    the costs of the 2004 hurricanes through storm-recovery
      charges. Requires that the storm-recovery charges be
 5    reflected on the electric bill. Provides for the issuance
      of storm-recovery bonds secured by storm-recovery
 6    property. Provides requirements, procedures, and
      limitations on the sale, assignment, or transfer of
 7    storm-recovery property. Provides a tax exemption for
      certain revenues collected by electric utilities. (See
 8    bill for details.)

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