hb137_LC_14_8975_a

hb137_LC_14_8975_a_2.html

05 LC 14 8975

House Bill 137

By: Representatives Lunsford of the 110th, Smith of the 129th, Keen of the 179th, Ehrhart of the 36th, O`Neal of the 146th, and others

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 23 of Title 50 of the Official Code of Georgia Annotated, relating to the Georgia Environmental Facilities Authority, so as to enact the "Georgia Transportation Infrastructure Bank Act"; to create the Georgia Transportation Infrastructure Bank as an instrumentality of the state within the Georgia Environmental Facilities Authority; to provide for governance of the bank by the members of the authority; to provide for the functions of the bank in general and in particular with respect to the financing of transportation projects of government units and private entities contracting with government units; to define terms; to provide for the powers, duties, governance, and operations of the bank; to provide for capitalization of the bank and funding sources; to authorize the issuance of bonds by the authority for purposes of the bank; to provide for other related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 23 of Title 50 of the Official Code of Georgia Annotated, relating to the Georgia Environmental Facilities Authority, is amended by adding at its end a new Article 3 to read as follows:

"ARTICLE 3

50-23-50.

This article shall be known and may be cited as the 'Georgia Transportation Infrastructure Bank Act.'

50-23-51.

(a) There is created within the Georgia Environmental Facilities Authority an instrumentality of the state to be known as the Georgia Transportation Infrastructure Bank.

(b) The bank shall be governed by the members of the Georgia Environmental Facilities Authority as provided in this chapter.

(c) The corporate purpose of the bank is to select and assist in financing qualified projects by providing loans and other financial assistance to government units and private entities for constructing and improving highway and transportation facilities necessary for public purposes, including economic development. The exercise by the bank of a power conferred in this article is an essential public function.

(d) The bank shall establish and maintain at least the four following accounts: state and local highway account, state and local transit account, federal highway account, and federal transit account.

50-23-52.

As used in this article, unless the context clearly indicates otherwise, the term:

(1) 'Bank' means the Georgia Transportation Infrastructure Bank.

(2) 'Board' means the members of the Georgia Environmental Facilities Authority.

(3) 'Department of Transportation' means the Georgia Department of Transportation and its successors.

(4) 'Eligible costs' means as applied to a qualified project to be financed from the federal highway accounts, the costs that are permitted under applicable federal laws, requirements, procedures, and guidelines in regard to establishing, operating, and providing assistance from the bank. As applied to a qualified project to be financed from the state and local highway account, these costs include the costs of preliminary engineering, traffic and revenue studies, environmental studies, right of way acquisition, legal and financial services associated with the development of the qualified project, construction, construction management, facilities, and other costs necessary for the qualified project. As applied to any qualified project to be financed from the federal transit account, these costs include the costs of preliminary engineering, traffic and revenue studies, environmental studies, right of way acquisition, legal and financial services associated with the development of the qualified project, construction, construction management, equipment, facilities, and other nonoperating costs necessary for the qualified project. As applied to any qualified project to be financed from the state and local transit account, these costs include the costs of preliminary engineering, traffic and revenue studies, environmental studies, right of way acquisition, legal and financial services associated with the development of the qualified project, construction, construction management, equipment, facilities, and other nonoperating costs necessary for the qualified project.

(5) 'Eligible project' means a highway, including bridges, air transport, airport, rails, or transit project which provides public benefits by either enhancing mobility and safety, promoting economic development, or increasing the quality of life and general welfare of the public. The term 'eligible project' also includes mass transit systems including, but not limited to, monorail and monobeam mass transit systems. There may be included as part of any such project all improvements necessary to the full utilization thereof, including site preparation, roads and streets, sidewalks, water supply, outdoor lighting, belt line railroad sidings and lead tracks, bridges, causeways, terminals for railroad, automotive, and air transportation, transportation facilities incidental to the project, and the dredging and improving of harbors and waterways, none of which foregoing descriptive words shall be construed to constitute a limitation.

(6) 'Federal accounts' means, collectively, the separate account for federal highway funds and federal transit funds.

(7) 'Financing agreement' means any agreement entered into between the bank and a qualified borrower pertaining to a loan or other financial assistance. This agreement may contain, in addition to financial terms, provisions relating to the regulation and supervision of a qualified project, or other provisions as the board may determine. The term 'financing agreement' includes, without limitation, a loan agreement, trust indenture, security agreement, reimbursement agreement, guarantee agreement, bond or note, ordinance or resolution, or similar instrument.

(8) 'Government unit' means a municipal corporation, county, or other public body, instrumentality, or agency of state or local government, including combinations of two or more of these entities acting jointly to construct, own, or operate a qualified project, and any other state or local authority, board, commission, agency, department, or other political subdivision created by the General Assembly or pursuant to the Constitution and laws of this state which may construct, own, or operate a qualified project.

(9) 'Loan' means an obligation subject to repayment which is provided by the bank to a qualified borrower for all or a part of the eligible costs of a qualified project. A loan may be disbursed in anticipation of reimbursement for or direct payment of the eligible costs of a qualified project.

(10) 'Loan obligation' means a bond, note, or other evidence of an obligation issued by a qualified borrower.

(11) 'Other financial assistance' includes, but is not limited to, grants, contributions, credit enhancement, capital or debt reserves for bonds or debt instrument financing, interest rate subsidies, provision of letters of credit and credit instruments, provision of bond or other debt financing instrument security, and other lawful forms of financing and methods of leveraging funds that are approved by the board, and in the case of federal funds, as allowed by federal law.

(12) 'Private entity' means a private person or entity that has entered into a contract with a government unit to design, finance, construct, and operate an eligible project within the jurisdiction of the government unit responsible for complying with applicable federal requirements.

(13) 'Project revenues' or 'revenues' means all rates, rents, fees, assessments, charges, and other receipts derived or to be derived by a qualified borrower from a qualified project or made available from a special source, and, as provided in the applicable financing agreement, derived from any system of which the qualified project is a part or from any other revenue-producing facility under the ownership or control of the qualified borrower including, without limitation, proceeds of grants, gifts, appropriations, and loans, including the proceeds of loans made by the bank, investment earnings, reserves for capital and current expenses, proceeds of insurance or condemnation, and proceeds from the sale or other disposition of property and from any other special source as may be provided by the qualified borrower.

(14) 'Qualified borrower' means any government unit or private entity which is authorized to construct, operate, or own a qualified project.

(15) 'Qualified project' means an eligible project which has been selected by the bank to receive a loan or other financial assistance from the bank to defray an eligible cost.

(16) 'State and local accounts' means, collectively, the separate account for state and local highway funds and state and local transit funds.

50-23-53.

In administering the affairs of the bank, the board may exercise any or all of the powers granted to the authority under Article 1 of this chapter, as well as the powers granted in this article. Without limiting the generality of the foregoing, the board is specifically authorized to issue bonds for the purposes of the bank, in the same general manner provided in Article 1 of this chapter.

50-23-54.

(a) In addition to the powers contained elsewhere in this chapter, the board has all power necessary, useful, or appropriate to fund, operate, and administer the bank, and to perform its other functions including, but not limited to, the power to:

(1) Have perpetual succession;

(2) Adopt, promulgate, amend, and repeal bylaws, not inconsistent with provisions in this article for the administration of the banḱs affairs and the implementation of its functions, including the right of the board to select qualifying projects and to provide loans and other financial assistance;

(3) Sue and be sued in the name of the bank;

(4) Have a seal and alter it at its pleasure, although the failure to affix the seal does not affect the validity of an instrument executed on behalf of the bank;

(5) Make loans to qualified borrowers to finance the eligible costs of qualified projects and to acquire, hold, and sell loan obligations at prices and in a manner as the board determines advisable;

(6) Provide qualified borrowers with other financial assistance necessary to defray eligible costs of a qualified project;

(7) Enter into contracts, arrangements, and agreements with qualified borrowers and other persons and execute and deliver all financing agreements and other instruments necessary or convenient to the exercise of the powers granted in this article;

(8) Enter into agreements with a department, agency, or instrumentality of the United States or of this state or another state for the purpose of providing for the financing of qualified projects;

(9) Establish:

(A) Policies and procedures for the making and administering of loans and other financial assistance; and

(B) Fiscal controls and accounting procedures to ensure proper accounting and reporting by the bank, government units, and private entities;

(10) Acquire by purchase, lease, donation, or other lawful means and sell, convey, pledge, lease, exchange, transfer, and dispose of all or any part of its properties and assets of every kind and character or any interest in it to further the public purpose of the bank;

(11) Procure insurance, guarantees, letters of credit, and other forms of collateral or security or credit support from any public or private entity or instrumentality of the United States or this state, for the payment of any bonds issued by it, including the power to pay premiums or fees on any insurance, guarantees, letters of credit, and other forms of collateral or security or credit support;

(12) Collect or authorize the trustee under any trust indenture securing any bonds to collect amounts due under any loan obligations owned by it, including taking the action required to obtain payment of any sums in default;

(13) Unless restricted under any agreement with holders of bonds, consent to any modification with respect to the rate of interest, time, and payment of any installment of principal or interest, or any other term of any loan obligations owned by it;

(14) Borrow money through the issuance of bonds and other forms of indebtedness as provided in this chapter;

(15) Expend funds to obtain accounting, management, legal, financial consulting, and other professional services necessary to the operations of the bank;

(16) Expend funds credited to the bank as the board determines necessary for the costs of administering the operations of the bank;

(17) Establish advisory committees as the board determines appropriate, which may include individuals from the private sector with banking and financial expertise;

(18) Procure insurance against losses in connection with its property, assets, or activities including insurance against liability for its acts or the acts of its employees or agents or to establish cash reserves to enable it to act as a self-insurer against any and all such losses;

(19) Collect fees and charges in connection with its loans or other financial assistance;

(20) Apply for, receive, and accept from any source, aid, grants, or contributions of money, property, labor, or other things of value to be used to carry out the purposes of this article subject to the conditions upon which the aid, grants, or contributions are made;

(21) Enter into contracts or agreements for the servicing and processing of financial agreements;

(22) Accept and hold, with or without payment of interest, funds deposited with the bank by government units and private entities; and

(23) Do all other things necessary or convenient to exercise powers granted or reasonably implied by this article.

(b) The bank is not authorized or empowered to be or to constitute a bank or trust company within the jurisdiction or under the control of this state or an agency of it or the Comptroller of the Currency or the Treasury Department of the United States, or a bank, banker, or dealer in securities within the meaning of, or subject to the provisions of, any securities, securities exchange, or securities dealerś law of the United States or of this state. The use of the word 'bank' in the Georgia Transportation Infrastructure Bank is required by federal law. For the express purpose as described in this article, the use of the word 'bank' in this article does not violate Code Section 7-1-243. In addition, all deposits taken by the bank shall contain a notice stating that the deposits are not insured by the Federal Deposit Insurance Corporation.

50-23-55.

(a) The following sources may be used to capitalize the bank and for the bank to carry out its purposes:

(1) Appropriations by the General Assembly;

(2) Federal funds not already dedicated for another purpose and made available to the state specifically for this purpose and federal funds, including Surface Transportation Program and Congestion Mitigation and Air Quality funds, which may be made available to any government unit for purposes of financing qualified transit projects;

(3) Contributions, donations, and deposits from government units, private entities, and any other source as may become available to the bank;

(4) All moneys paid or credited to the bank, by contract or otherwise, payments of principal and interest on loans or other financial assistance made from the bank, and interest earnings which may accrue from the investment or reinvestment of the banḱs moneys;

(5) Proceeds from the issuance of bonds as provided in this chapter; and

(6) Other lawful sources not already dedicated for another purpose as determined appropriate by the board.

(b) Without limiting the provisions of subsection (a) of this Code section, it is specifically provided that any local government may use the proceeds of any local motor fuel tax which may be hereafter made available by law for the purposes of this article, including without limitation the funding of eligible projects and contributions, donations, and deposits to the bank.

(c) Neither the proceeds of the state motor fuel taxes nor any other state revenue source currently dedicated to any particular purpose or program shall be used to capitalize the bank. State tax revenues may not be appropriated or used to fund the bank.

50-23-56.

(a) Earnings on balances in the federal accounts must be credited and invested according to federal law. Earnings on state and local accounts must be credited to the state and local highway account or state and local transit account that generates the earnings. The bank may establish accounts and subaccounts within the state and local accounts and federal accounts as considered desirable to effectuate the purposes of this article, or to meet the requirements of any state or federal programs.

(b) For necessary and convenient administration of the bank, the board shall establish federal and state and local accounts and subaccounts within the bank necessary to meet any applicable federal law requirements or as the bank shall determine necessary or desirable in order to implement the provisions of this article.

(c) The bank shall comply with all applicable federal laws and regulations prohibiting the commingling of certain federal funds deposited in the bank.

50-23-57.

(a) The bank may provide loans and other financial assistance to a government unit or private entity to pay for all or part of the eligible costs of a qualified project. The term of the loan or other financial assistance shall not exceed the useful life of the project. The bank may require the government unit or private entity to enter into a financing agreement in connection with its loan obligation or other financial assistance. The board shall determine the form and content of loan applications, financing agreements, and loan obligations including the term and rate or rates of interest on a financing agreement. The terms and conditions of a loan or other financial assistance from federal accounts shall comply with applicable federal requirements.

(b) The selection of which eligible projects are to receive a loan or other financial assistance from the bank shall be in accordance with the following criteria:

(1) Preference shall be given to eligible projects which have local financial support;

(2) An eligible project shall be included on a state-wide transportation improvement program or a local or regional transportation plan by the board; and

(3) Other criteria adopted by the board.

50-23-58.

(a) Qualified borrowers are authorized to obtain loans or other financial assistance from the bank through financing agreements. Qualified borrowers entering into financing agreements and issuing loan obligations to the bank may perform any acts, take any action, adopt any proceedings, and make and carry out any contracts or agreements with the bank as may be agreed to by the bank and any qualified borrower for the carrying out of the purposes contemplated by this article.

(b) In addition to the authorizations contained in this article, all other statutes or provisions permitting government units to borrow money and issue obligations, including, but not limited to, Article 3 of Chapter 82 of Title 36, the 'Revenue Bond Law,' may be utilized by any government unit in obtaining a loan or other financial assistance from the bank to the extent determined necessary or useful by the government unit in connection with any financing agreement and the issuance, securing, or sale of loan obligations to the bank.

(c) A qualified borrower may receive, apply, pledge, assign, and grant security interests in project revenues to secure its obligations as provided in this article. A qualified borrower may fix, revise, charge, and collect fees, rates, rents, assessments, and other charges of general or special application for the operation or services of a qualified project, the system of which it is a part, and any other revenue-producing facilities from which the qualified borrower derives project revenues to meet its obligations under a financing agreement or to provide for the construction and improving of a qualified project.

50-23-59.

The bank is performing an essential governmental function in the exercise of the powers conferred upon it and is not required to pay taxes or assessments upon property or upon its operations or the income therefrom or taxes or assessments upon property or loan obligations acquired or used by the bank or upon the income therefrom.

50-23-60.

(a) If a government unit fails to collect and remit in full all amounts due to the bank on the date these amounts are due under the terms of any note or other obligation of the government unit, the bank shall notify the appropriate state officials who shall withhold all or a portion of the funds of the state and all funds administered by the state and its agencies, boards, and instrumentalities allotted or appropriated to the government unit and apply an amount necessary to the payment of the amount due.

(b) Nothing contained in this Code section mandates the withholding of funds allocated to a government unit or private entity which would violate contracts to which the state is a party, the requirements of federal law imposed on the state, or judgments of a court binding on the state.

(c) A mutual undertaking by a local government entity to borrow and an undertaking by the state or a state authority to lend funds from and to one another for highway, mass transit, and other transportation purposes pursuant to law shall be a provision for services and an activity within the meaning of Article IX, Section III, Paragraph I(a) of the Constitution of the State of Georgia.

50-23-61.

Neither the board nor any officer, employee, or committee of the bank acting on behalf of it, while acting within the scope of this authority, is subject to any liability resulting from carrying out any of the powers given in this article.

50-23-62.

Notice, proceeding, or publication, except those required in this article, is not necessary to the performance of any act authorized in this article is any act of the bank subject to any referendum.

50-23-63.

Following the close of each state fiscal year, the bank shall submit an annual report of its activities for the preceding year to the Governor and make such report available to the General Assembly. The bank also shall submit an annual report to the appropriate federal agency in accordance with requirements of any federal program."

SECTION 2.

All laws and parts of laws in conflict with this Act are repealed.