Report Title:
High Technology Dev Corp, Bonds
Description:
Repeals part III of chapter 206M, HRS, reenacts the same provisions, and makes this Act retroactive to April 28, 2000, the day after the enactment of Act 72, SLH 2000. Clarifies that the governor's and legislature's approval are required before the issuance of any special facility revenue bonds. Appropriates funds for technology marketing and promotion, biotechnology development, and high technology capital improvements. (SD1)
HOUSE OF REPRESENTATIVES |
H.B. NO. |
1662 |
TWENTY-FIRST LEGISLATURE, 2001 |
H.D. 1 |
|
STATE OF HAWAII |
S.D. 1 |
|
|
A BILL FOR AN ACT
RELATING TO THE HIGH TECHNOLOGY DEVELOPMENT CORPORATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I
SECTION 1. The legislature enacted Act 72, Session Laws of Hawaii 2000, in part to permit the high technology development corporation to issue special facility revenue bonds, with the approval of the governor, but without having to come back to the legislature each time. While Act 72 does not contain any specific appropriations, section 1 of Act 72, codified as part III, chapter 206M, Hawaii Revised Statutes (HRS), contains an implied appropriation of the funds, because the intent of the legislature was that the special facility revenue bonds may be issued without additional authorization by the legislature.
The legislature passed Act 72 before the supplemental appropriations act of 2000 was transmitted to the governor. This may be interpreted to violate article VII, section 9 of the Hawaii state constitution, which prohibits the passage of appropriation bills on final reading until the general appropriations bill or the supplemental appropriations bill has been transmitted to the governor.
The purpose of this Part is to:
SECTION 2. Chapter 206M, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"PART III. SPECIAL FACILITY REVENUE BONDS
§206M- Definitions. As used in this part, unless the context clearly requires otherwise:
"Special facility" means one or more buildings, structures, or facilities and the land thereof located in an industrial park for the high technology industry, including, without limitation, facilities for technology research, development, support, processing, and manufacturing, which are the subject of a special facility lease.
"Special facility lease" includes a contract, lease, or other agreement, or any combination thereof, the subject matter of which is the same special facility.
"Special facility revenue bonds" means all bonds, notes, and other instruments of indebtedness of the State issued pursuant to this part and part III of chapter 39.
§206M- Powers. In addition to any other powers granted to the development corporation by law, the development corporation may:
(1) With the approval of the governor, and without public bidding, enter into a special facility lease or an amendment or supplement thereto whereby the development corporation agrees to acquire, construct, improve, install, equip, and develop a special facility solely for the use by another party to a special facility lease;
(2) With the approval of the governor, and as may be authorized by a specific act or acts of the legislature, issue special facility revenue bonds in principal amounts that may be necessary to yield the amount of the cost of any acquisition, construction, improvement, installation, equipping, and development of any special facility, including, subject to paragraph (6) the costs of acquisition of the site thereof; provided that the total principal amount of the special facility revenue bonds which may be issued pursuant to this section shall not exceed $100,000,000;
(3) With the approval of the governor, issue refunding special facility revenue bonds with which to provide for the payment of outstanding special facility revenue bonds (including any special facility revenue bonds theretofore issued for this refunding purpose) or any part thereof; provided any issuance of refunding special facility revenue bonds shall not reduce the principal amount of the bonds that may be issued as provided in paragraph (2);
(4) Perform and carry out the terms and provisions of any special facility lease;
(5) Notwithstanding section 103-7 or any other law to the contrary, acquire, construct, improve, install, equip, or develop any special facility, or accept the assignment of any contract therefor entered into by the other party to the special facility lease;
(6) Construct any special facility on land owned by the State; provided that no funds derived herein shall be expended for land acquisition; and
(7) Agree with the other party to the special facility lease whereby any acquisition, construction, improvement, installation, equipping, or development of the special facility and the expenditure of moneys therefor shall be undertaken or supervised by another person. Neither the undertaking by the other person nor the acceptance by the development corporation of a contract theretofore entered into by the other person therefor, shall be subject to chapter 103D.
§206M- Findings and determinations for special facility leases. The development corporation shall not enter into any special facility lease unless the development corporation, at or prior to the entering into of the special facility lease, shall find and determine:
(1) That the building, structure, or facility that is to be the subject of the special facility lease shall not be used to provide services, commodities, supplies, or facilities that are then adequately being made available otherwise in the State;
(2) That the use or occupancy of the building, structure, or facility under the special facility lease would not result in the reduction of the revenues derived from the industrial parks or other properties of the development corporation to an amount below the amount required to be derived therefrom by section 39-61; and
(3) That the entering into of the special facility lease would not be in violation of or result in a breach of any covenant contained in any resolution or certificate authorizing any bonds of the State then outstanding.
§206M- Special facility lease. (a) In addition to the conditions and terms set forth in this part, any special facility lease entered into by the development corporation shall at least contain provisions obligating the other party to the special facility lease:
(1) To pay to the development corporation during the initial term of the special facility lease, whether the special facility is capable of being used or occupied or is being used or occupied by the other party, a rental or rentals at the time or times and in the amount or amounts that will be sufficient to:
(A) Pay the principal and interest on all special facility revenue bonds issued for the special facility;
(B) Establish or maintain any reserves for these payments; and
(C) Pay all fees and expenses of the trustees, paying agents, transfer agents, and other fiscal agents for the special facility revenue bonds issued for the special facility;
(2) To pay to the development corporation:
(A) A ground rental, equal to the fair market rental of the land, if the land on which the special facility is located was not acquired from the proceeds of the special facility revenue bonds; or
(B) A properly allocable share of the administrative costs of the development corporation in carrying out the special facility lease and administering the special facility revenue bonds issued for the special facility if the land was acquired from the proceeds of the special facility revenue bonds;
(3) To either operate, maintain, and repair the special facility and pay the costs thereof or to pay to the development corporation all costs of operation, maintenance, and repair of the special facility;
(4) To:
(A) Insure, or cause to be insured, the special facility under builder's risk insurance (or similar insurance) in the amount of the cost of construction of the special facility to be financed from the proceeds of the special facility revenue bonds;
(B) Procure and maintain, or cause to be procured or maintained, to the extent commercially available, a comprehensive insurance policy providing protection and insuring the development corporation and its officers, agents, servants, and employees (and so long as special facility revenue bonds are outstanding, the trustee) against all direct or contingent loss or liability for damages for personal injury or death or damage to property, including loss of use thereof, occurring on or in any way related to the special facility or occasioned by reason of occupancy by and the operations of the other person upon, in and around the special facility;
(C) Provide all risk casualty insurance, including insurance against loss or damage by fire, lightning, flood, earthquake, typhoon, or hurricane, with standard extended coverage and standard vandalism and other malicious mischief endorsements; and
(D) Provide insurance for workers' compensation and employers' liability for personal injury or death or damage to property (the other party may self-insure for workers' compensation if permitted by law); provided that all policies with respect to loss or damage of property including fire or other casualty and extended coverage and builder's risk shall provide for payments of the losses to the development corporation, the other party, or the trustee for the special facility revenue bonds as their respective interests may appear; and provided further that the insurance may be procured and maintained as part of or in conjunction with other policies carried by the other party; and provided further that the insurance shall name the development corporation, and so long as any special facility revenue bonds are outstanding, the trustee, as additional insured; and
(5) Indemnify, save, and hold the development corporation, the trustee, and their respective agents, officers, members, and employees harmless from and against all claims and actions and all costs and expenses incidental to the investigation and defense thereof, by or on behalf of any person, firm, or corporation, based upon or arising out of the special facility or the other party's use and occupancy thereof, including, without limitation, from and against all claims and actions based upon and arising from any:
(A) Condition of the special facility;
(B) Breach or default on the part of the other party in the performance of any of the party's obligations under the special facility lease;
(C) Fault or act of negligence of the other party or the party's agents, contractors, servants, employees, or licensees; or
(D) Accident to or injury or death of any person or loss of or damage to any property occurring in or about the special facility, including any claims or actions based upon or arising by reason of the negligence or any act of the other party.
Any moneys received by the development corporation pursuant to paragraphs (2) and (3) shall be paid into the high technology special fund and shall not be nor be deemed to be revenues of the special facility.
(b) The term and all renewals and extensions of the term of any special facility lease (including any amendments or supplements thereto) shall not extend beyond the lesser of the reasonable life of the special facility that is the subject of the special facility lease, as estimated by the development corporation at the time of the entering into thereof, or thirty years.
(c) Any special facility lease entered into by the development corporation shall be subject to chapter 171 and shall contain other terms and conditions that the development corporation deems advisable to effectuate the purposes of this part.
§206M- Special facility revenue bonds. All special facility revenue bonds authorized to be issued under this part shall be issued pursuant to part III of chapter 39, except as follows:
(1) No revenue bonds shall be issued unless at the time of issuance, the development corporation has entered into a special facility lease with respect to the special facility for which the revenue bonds are to be issued;
(2) The revenue bonds shall be issued in the name of the development corporation and not in the name of the State;
(3) The revenue bonds shall be payable solely from and secured solely by the revenues derived by the development corporation from the special facility for which they are issued;
(4) The final maturity date of the revenue bonds shall not be later than either the estimated life of the special facility for which the revenue bonds are issued or the expiration of the initial term of the special facility lease;
(5) If deemed necessary or advisable by the development corporation, or to permit the obligations of the other party to the special facility lease to be registered under the U.S. Securities Act of 1933, the development corporation, with the approval of the director of finance, may appoint a national or state bank within or without the State to serve as trustee for the holders of the revenue bonds and may enter into a trust indenture or trust agreement with the trustee. The trustee may be authorized by the development corporation to collect, hold, and administer the revenues derived from the special facility for which the revenue bonds are issued and to apply the revenues to the payment of the principal and interest on the revenue bonds. In the event that any trustee shall be appointed, any trust indenture or trust agreement entered into by the development corporation with the trustee may contain the covenants and provisions authorized by part III of chapter 39 to be inserted in a resolution adopted or certificate issued, as though the words "resolution" or "certificate" as used in that part read "trust indenture or trust agreement".
The covenants and provisions shall not be required to be included in the resolution or certificate authorizing the issuance of the revenue bonds if included in the trust indenture or trust agreement. Any resolution or certificate, trust indenture, or trust agreement adopted, issued, or entered into by the development corporation pursuant to this part may also contain any provisions required for the qualification thereof under the U.S. Trust Indenture Act of 1939. The development corporation may pledge and assign to the trustee the special facility lease and the rights of the development corporation including the revenues thereunder;
(6) If the development corporation, with the approval of the director of finance, shall have appointed or shall appoint a trustee for the holders of the revenue bonds, then notwithstanding the provisions of section 39-68, the director of finance may elect not to serve as fiscal agent for the payment of the principal and interest, and for the purchase, registration, transfer, exchange, and redemption of the revenue bonds, or may elect to limit the functions the director of finance shall perform as the fiscal agent. The development corporation, with the approval of the director of finance, may appoint the trustee to serve as the fiscal agent, and may authorize and empower the trustee to perform the functions with respect to payment, purchase, registration, transfer, exchange, and redemption, that the development corporation may deem necessary, advisable, or expedient, including, without limitation, the holding of the revenue bonds and coupons, if any, that have been paid and the supervising and conducting of the destruction thereof in accordance with sections 40-10 and 40-11. Nothing in this paragraph shall be a limitation upon or construed as a limitation upon the powers granted in paragraph (5) to the development corporation with the approval of the director of finance to appoint the trustee, or granted in sections 36-3, 39-13, and 39-68 to the director of finance to appoint the trustee or others, as fiscal agents, paying agents, and registrars for the revenue bonds or to authorize and empower the fiscal agents, paying agents, and registrars to perform the functions referred to in paragraph (5) and sections 36-3, 39-13, and 39-68, it being the intent of this paragraph to confirm that the director of finance may elect not to serve as fiscal agent for the revenue bonds or may elect to limit the functions the director of finance shall perform as the fiscal agent, that the director of finance may deem necessary, advisable, or expedient;
(7) The development corporation may sell the revenue bonds either at public or private sale;
(8) If no trustee is appointed to collect, hold, and administer the revenues derived from the special facility for which the revenue bonds are issued, the revenues shall be held in a separate account in the treasury of the State, separate and apart from the high technology special fund, to be applied solely to the carrying out of the resolution, certificate, trust indenture, or trust agreement authorizing or securing the revenue bonds;
(9) If the resolution, certificate, trust indenture, or trust agreement provides that no revenue bonds issued thereunder shall be valid or obligatory for any purpose unless certified or authenticated by the trustee for the holders of the revenue bonds, the signatures of the officers of the State upon the bonds required by section 39-56 may be facsimiles of their signatures;
(10) Proceeds of the revenue bonds may be used and applied by the development corporation to reimburse the other party to the special facility lease for all preliminary costs and expenses, including architectural and legal costs; and
(11) If the special facility lease requires the other party to operate, maintain, and repair the special facility that is the subject of the lease, at the other party's expense, the requirement shall constitute compliance by the development corporation with section 39-61(a)(2), and none of the revenues derived by the development corporation from the special facility shall be required to be applied to the purposes of section 39-62(2). Sections 39-62(4), 39-62(5), and 39-62(6) shall not apply to the revenues derived from a special facility lease.
SECTION 3. Chapter 206M, part III, Hawaii Revised Statutes, is repealed.
PART II
SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $200,000, or so much thereof as may be necessary for fiscal year 2001-2002, to support high technology marketing and promotion activities, and the sum of $71,250 or so much thereof as may be necessary for fiscal year 2001-2002, to support a new position for biotechnology development.
The sums appropriated shall be expended by the department of business, economic development, and tourism for the purposes of this section.
SECTION 5. The following sums, or so much thereof as shall be necessary to finance the projects listed in this section, are appropriated out of the general revenues of the State of Hawaii for fiscal year 2001-2002:
(1) $311,000 for major cabling and wiring replacements as well as to renovate offices for startup technology companies within the incubator.
(2) $114,000 for major cabling replacement and equipment software upgrades to provide high-speed communications for startup technologies within the incubator.
The sums appropriated shall be expended by the department of business, economic development, and tourism for the purposes of this section.
SECTION 6. This Act shall take effect upon approval; provided that Part I of this Act shall take effect retroactive to April 28, 2000; and provided further that Part II of this Act shall take effect on July 1, 2001.