GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1999
SESSION LAW 2000-179
The General Assembly of North Carolina enacts:
Section 1. Chapter 115E of the General Statutes is recodified as Article 2 of Chapter 159D of the General Statutes.
Section 2. Chapter 159D of the General Statutes, as amended by this act, reads as rewritten:
"Chapter 159D.
"The North
Carolina Industrial and Pollution
Control Capital Facilities Pool Program Financing
Act.
"Article 1.
"Industrial and Pollution Control Facilities Financing.
"§ 159D-1. Short title.
This chapter Article may be referred to as
"The North Carolina Industrial and Pollution Control Facilities Pool
Program Financing Act."
"§ 159D-2. Legislative findings and purposes.
(a) The General Assembly
finds and determines that there exists in the State a critical condition of
unemployment and a scarcity of employment opportunities; that the economic
insecurity which results from such unemployment and scarcity of employment
opportunities constitutes a serious menace to the safety, morals and general
welfare of the entire State; that such unemployment and scarcity of employment
opportunities have caused many workers and their families, including young
adults upon whom future economic prosperity is dependent, to migrate elsewhere
to find employment and establish homes; that such emigration has resulted in a
reduced rate of growth in the tax base of the counties and other local
governmental units of the State which impairs the financial ability of such
counties and other local governmental units to support education and other
local governmental services; that such unemployment results in obligations to
grant public assistance and to pay unemployment compensation; that the
aforesaid conditions can best be remedied by the attraction, stimulation,
expansion and rehabilitation and revitalization of industrial and manufacturing
facilities for industry in the State; and that there is a need to stimulate a
larger flow of private investment funds into industrial building programs into
[in] in the State.
(b) The General Assembly
further finds and determines that the development and expansion of industry
within the State, which are essential to the economic growth of the State, and
to the full employment and prosperity of its people, are accompanied by the
increased production and discharge of gaseous, liquid, and solid pollution and
wastes which threaten and endanger the health, welfare and safety of the
inhabitants of the State by polluting the air, land and waters of the State;
that in order to reduce, control, and prevent such environmental pollution, it
is imperative that action be taken at various levels of government to require
the provision of devices, equipment and facilities for the collection,
reduction, treatment, and disposal of such pollution and wastes; that the
assistance provided in this Chapter, Article, especially with
respect to financing, is therefore in the public interest and serves a public
purpose of the State in promoting the health, welfare and safety of the inhabitants
of the State not only physically by collecting, reducing, treating and
preventing environmental pollution but also economically by securing and
retaining private industry thereby maintaining a higher level of employment and
economic activity and stability.
(c) The General
Assembly further finds that the federal government and its agencies have
established, and may in the future establish, programs to promote gainful
employment opportunity and the prevention and control of the pollution of air,
land and waters of the United States through assistance in the financing of
industrial and manufacturing facilities and pollution control facilities for
industry and that the economical implementation of such programs in the State
of North Carolina may require the financing of such facilities through a
uniform statewide program.
(c1) The General Assembly
further finds that certain provisions of federal tax law, economies of scale
and credit market conditions make it advantageous for counties in North Carolina
to be authorized to create a single authority with the legal capacity to
combine separate financings into one or more pools that may be offered for sale
on more favorable terms than any single financing standing alone.
(d) It is
therefore declared to be the policy of the State to promote the right to
gainful employment opportunity, private industry, the prevention and control of
the pollution of the air, land and waters of the State, and the safety, morals
and health of the people of the State, and thereby promote general welfare of
the people of the State, by authorizing counties to create an authority which
shall be a political subdivision and body corporate and politic of the State.
This body is to be formed (i) to aid in the financing of industrial and
manufacturing facilities for the purpose of alleviating unemployment or raising
below average manufacturing wages by financing industrial and manufacturing
facilities which provide job opportunities or pay better wages than those
prevalent in the area and (ii) to aid in financing pollution control facilities
for industry in connection with manufacturing and industrial facilities, in
each case in connection with pool programs to effect such purposes; provided,
however, that it is the policy of the State to finance only those facilities
where there is a direct or indirect favorable impact on employment or an
improvement in the degree of prevention or control of pollution commensurate
with the size and cost of the facilities.
"§ 159D-3. Definitions.
The following terms, whenever used or referred to in this Chapter,
Article, shall have the following respective meanings, unless a
different meaning clearly appears from the context:
(1) "Agency"
shall include any agency, bureau, commission, department or instrumentality.
'Agency' means the North Carolina Capital Facilities Finance Agency, an agency of the State created pursuant to G.S. 159D-38 of the North Carolina Capital Facilities Finance Act, codified as Article 2 of this Chapter.
(2) 'Air pollution control facility' shall mean any structure, equipment or other facility for, including any increment in the cost of any structure, equipment or facility attributable to, the purpose of treating, neutralizing or reducing gaseous industrial waste and other air pollutants, including recovery, treatment, neutralizing or stabilizing plants and equipment and their appurtenances, which shall have been certified by the agency having jurisdiction to be in furtherance of the purpose of abating or controlling atmospheric pollutants or contaminants.
(3) 'Authority' shall mean
The North Carolina Industrial and Pollution Control Facilities Financing
Authority, a political subdivision and body politic of the State, which may
be created pursuant to the provisions of this Chapter and which shall
have the powers and authority specified in and by this Chapter. Article.
(4) 'Bonds' shall mean
revenue bonds of an authority issued under the provisions of this Chapter.
Article.
(5) 'Cost' as applied to any project shall embrace all capital costs thereof, including the cost of construction, the cost of acquisition of all property, including rights in land and other property, both real and personal and improved and unimproved, the cost of demolishing, removing or relocating any buildings or structures on lands so acquired, including the cost of acquiring any lands to which such buildings or structures may be moved or relocated, the cost of all machinery and equipment, installation, start-up expenses, financing charges, interest prior to, during and for a period not exceeding one year after completion of construction, the cost of engineering and architectural surveys, plans and specifications, the cost of consultants' and legal services, other expenses necessary or incident to determining the feasibility or practicability of such project, administrative and other expenses necessary or incident to the acquisition or construction of such project and the financing of the acquisition and construction thereof, including a reserve for debt services.
(6) 'Pool
program" shall mean a program of the authority whereby separate financings
for obligors are combined into one or more pools for purposes of sale.
The credit of such financings or the pool may be enhanced by participation in a
federal program, by a guaranty such as a surety bond, insurance or a letter of
credit, by additional collateral or by any other device, fund or guaranty by
any person other than the authority, agency, under which payment of bonds or
the obligations of an obligor under a financing agreement shall be guaranteed,
in whole or in part, by such person or persons.
(7) 'Financing agreement'
shall mean a written instrument establishing the rights and responsibilities of
the authority agency and the operator with respect to a project
financed by the issue of bonds.
(8) 'Governing body' shall mean the board, commission, council or other body in which the general legislative powers of any county or other political subdivision are vested.
(9) 'Obligor' shall mean
collectively the operator and any others (including, but not by way of
limitation, any other person, collateral device or fund that shall be obligated
to pay) who or which shall be obligated under a financing agreement or guaranty
agreement or other contract or agreement to make payments to, or for the
benefit of, the holders of bonds of the authority. agency. Any
requirement of an obligor may be satisfied by any one or more persons who are
defined collectively by this Chapter Article as the obligor.
(10) 'Operator' shall mean the person entitled to the use or occupancy of a project.
(11) 'Political subdivision' shall
mean any county, city, town, other unit of local government or any other
governmental corporation, agency, entity, authority or
instrumentality of the State now or hereafter existing.
(12) 'Pollution and pollutants' shall mean any noxious or deleterious substances in any air or waters of or adjacent to the State of North Carolina or affecting the physical, chemical or biological properties of any air or waters of or adjacent to the State of North Carolina in a manner and to an extent which renders or is likely to render such air or waters harmful or inimical to the public health, safety or welfare, or to animal, bird or aquatic life, or to the use of such air or waters for domestic, industrial or agricultural purposes or recreation.
(13) 'Project' shall mean any land, equipment or any one or more buildings or other structures, whether or not on the same site or sites, and any rehabilitation, improvement, renovation or enlargement of, or any addition to, any building or structure for use as or in connection with (i) any industrial project for industry which project may be any industrial or manufacturing factory, mill, assembly plant or fabricating plant, or freight terminal, or industrial research, development or laboratory facility or industrial processing facility for industrial or manufactured products, or (ii) any pollution control project for industry which project may be any air pollution control facility, water pollution control facility, or solid waste disposal facility in connection with any factory, mill, plant, terminal or facility described in clause (i) of this subdivision, or (iii) any combination of projects mentioned in clauses (i) and (ii) of this subdivision. Any project may include all appurtenances and incidental facilities such as land, headquarters or office facilities, warehouses, distribution centers, access roads, sidewalks, utilities, railway sidings, trucking and similar facilities, parking facilities, landing strips and other facilities for aircraft, waterways, docks, wharves and other improvements necessary or convenient for the construction, maintenance and operation of any building or structure, or addition thereto.
(14) 'Revenues' shall mean, with respect to any project, the rents, fees, charges, payments, proceeds and other income or profit derived therefrom or from the financing agreement or security document in connection therewith.
(15) 'Security document' shall mean a
written instrument or instruments establishing the rights and responsibilities
of the authority agency and the holders of bonds issued to
finance a project, and may provide for, or be in the form of an agreement with,
a trustee for the benefit of such bondholders. A security document may contain
an assignment, pledge, mortgage or other encumbrance of all or part of the authority's
agency's interest in, or right to receive revenues with respect to,
a project and any other property provided by the operator or other obligor
under a financing agreement and may bear any appropriate title. A financing
agreement and a security document may be combined as one instrument.
(16) 'Solid waste' shall mean solid waste materials resulting from any industrial or manufacturing activities or from any pollution control facility.
(17) 'Solid waste disposal facility' shall mean a facility for the purpose of treating, burning, compacting, composting, storing or disposing of solid waste.
(18) 'Water pollution control
facility' shall mean any structure, equipment or other facility for, including
any increment in the cost of any structure, equipment or facility attributable
to, the purpose of treating, neutralizing or reducing liquid industrial waste
and other water pollution, including collecting, treating, neutralizing,
stabilizing, cooling, segregating, holding, recycling, or disposing of liquid
industrial waste and other water pollution, including necessary collector,
interceptor, and outfall lines and pumping stations, which shall have has
been certified by the agency entity exercising jurisdiction
to be in furtherance of the purpose of abating or controlling water pollution.
"§
159D-4. Creation of the authority.
(a) The
governing bodies of two or more counties are hereby authorized to create by
resolution a political subdivision and body corporate and politic of the State
known as "The North Carolina Industrial Facilities and Pollution Control
Financing Authority", in order to effectuate in the most economical manner
the acquisition, construction and financing of projects through pool programs.
If each governing body shall determine that it is in the
best interest of the county to cause to be created and to become a member of
the authority, each governing body shall adopt a resolution so finding and
setting forth the names of the counties which are proposed to be initial
members of the authority. The governing body of the county shall thereupon by
ordinance or resolution appoint one commissioner of the authority.
Any two or more commissioners so named may file with the
Secretary of State an application signed by them setting forth (i) the names of
all the proposed member counties; (ii) the name and official residence of each
of the commissioners so far as known to them; (iii) a certified copy of the
appointment evidencing their right to office; (iv) a statement that each
governing body of each respective county appointing a commissioner has made the
aforesaid determination; and (v) the desire that an authority be organized as a
political subdivision and a body corporate and politic under this Chapter.
The application shall be subscribed and sworn to by such commissioners
before an officer or officers authorized by the laws of the State to administer
and certify oaths.
The Secretary of State shall examine the application and,
if he finds that the name proposed for the authority is not identical with that
of any other corporation of this State or of any agency or instrumentality
thereof, or so nearly similar as to lead to confusion and uncertainty, he shall
receive and file it and shall record it in an appropriate book of record in his
office.
When the application has been made, filed and recorded as
herein provided, the authority shall constitute a political subdivision and a
body corporate and politic under the name proposed in the application. The
Secretary of State shall make and issue to the commissioners executing the
application a certificate of incorporation pursuant to this Chapter under the
seal of the State, and shall record the same with the application. The
certificate shall set forth the names of the member counties.
In any suit, action or proceeding involving the validity
or enforcement of, or relating to, any contract of the authority, the
authority, in the absence of establishing fraud in the premises, shall be
conclusively deemed to have been established in accordance with the provisions
of this Chapter upon proof of the issuance of the aforesaid certificate by the
Secretary of State. A copy of such certificate, duly certified by the Secretary
of State, shall be admissible in evidence in any such suit, action or
proceeding, and shall be conclusive proof of the filing and contents thereof.
Notice of the issuance of such certificate shall be given
to all of the proposed member counties by the Secretary of State. If a
commissioner of any such county has not signed the application to the Secretary
of State and such county does not notify the Secretary of State of the
appointment of a commissioner within 40 days after receipt of such notice, such
county shall be deemed to have elected not to be a member of the authority. As
soon as practicable after the expiration of such 40-day period, the Secretary
of State shall issue a new certificate of incorporation, if necessary, setting
forth the names of those counties which have elected to become members of the
authority. The failure of any proposed member to become a member shall not
affect the validity of the corporate existence of the authority.
(b) After the
creation of the authority, any county may become a member thereof upon
application to the authority after adoption of a resolution or ordinance by the
governing body of the county setting forth the determination and finding
prescribed in paragraph (a) of this G.S. 159D-4, and authorizing said county to
participate. Any county may withdraw from membership in the authority,
provided, however, that all contractual rights acquired and obligations
incurred while a county was a member shall remain in full force and effect.
(c) The
authority shall consist of a board of commissioners appointed by the respective
governing bodies of the counties which are members of the authority. Each
commissioner shall have one vote. Each commissioner shall serve at the pleasure
of the governing body by which he was appointed. Each appointed commissioner
before entering upon his duties shall take and subscribe to an oath before some
person authorized by law to administer oaths to execute the duties of his
office faithfully and impartially, and a record of such oath shall be filed
with the governing body of the appointing municipality and spread upon its
minutes.
(d) The board
of commissioners of the authority shall annually elect from its membership a
chairman and a vice-chairman and another person or persons, who may but need
not be commissioners, as treasurer, secretary and, if desired, assistant
secretary. The position of secretary and treasurer or assistant secretary and
treasurer may be held by the same person. The secretary of the authority shall
keep a record of the proceedings of the authority and shall be the custodian of
all books, documents and papers filed with the authority, the minute book or
journal of the authority and its official seal. Either the secretary or the
assistant secretary of the authority may cause copies to be made of all minutes
and other records and documents of the authority and may give certificates
under the official seal of the authority to the effect that such copies are
true copies, and all persons dealing with the authority may rely upon such
certificates.
(e) A majority
of the commissioners of the authority then in office shall constitute a quorum.
Except as provided in subsection (f) of this G.S. 159D-4, the affirmative vote
of a majority of all the commissioners of the authority shall be necessary for
any action of the board. A vacancy in the board of commissioners of the
authority shall not impair the right of a quorum to exercise all the rights and
perform all the duties of the authority. Any action taken by the authority
under the provisions of this Chapter may be authorized by resolution at any
regular or special meeting, and each resolution shall take effect immediately
and need not be published or posted. No bonds shall be issued under the
provisions of this Chapter unless the issuance thereof shall have been approved
by the governing body of the county in which the project with respect to which
the bonds were issued is located.
(f) If at
any time there shall be more than seven counties which are members of the
authority, the board of commissioners of the authority may create an executive
committee of the board of commissioners. The board may provide for the
composition of the executive committee so as to afford, in its judgment, fair
representation of the member counties. Any power of the authority under the
provisions of this Chapter may be exercised by the executive committee of the
authority between meetings of the authority, except that the executive
committee may not overrule, reverse or disregard any action of the board of
commissioners of the authority. The membership of the executive committee,
terms of office of members thereof and the method of filling vacancies therein
shall be fixed by the rules or bylaws of the board of commissioners.
(g) No
commissioner of an authority shall receive any compensation for the performance
of his duties under this Chapter; provided, however, that each commissioner
shall be reimbursed for his necessary expenses incurred while engaged in the
performance of duties but only from moneys provided by obligors.
(h) Within 30
days of the date of creation of the authority, the authority shall advise the
Department of Commerce and the Local Government Commission that an authority
has been formed. The authority shall also furnish such Department and such
Commission with (i) a list of its commissioners and its officers and (ii) a
description of any projects that are under consideration by the authority. The
authority shall, from time to time, notify the Department of Commerce and the
Local Government Commission of changes in the commissioners and officers, of
counties which have become members of the authority and of new projects under
consideration by the authority.
"§ 159D-4.1. Jurisdiction of the agency.
All actions taken by counties, local officials, the Secretary of State, the State Treasurer, and other interested parties to create and organize The North Carolina Industrial Facilities and Pollution Control Financing Authority are ratified and confirmed. All duties, powers, jurisdiction, and responsibilities vested by statute or by contract in the authority are transferred to and vested in the North Carolina Capital Facilities Finance Agency, subject to the provisions of this Article. Upon this transfer, the agency is responsible for all duties and obligations of the authority entered into or incurred, by contract or otherwise, before the transfer. Particularly, the agency is responsible for all matters relating to any outstanding bonds of the authority to the same extent that the authority was responsible for them before the date of transfer. The agency for all purposes assumes the role and is the legal successor of the authority. Upon this transfer, the authority is dissolved.
"§ 159D-5. General powers.
The authority agency shall have all of the
powers necessary or convenient to carry out and effectuate the purposes and
provisions of this Chapter, Article, including, but without
limiting the generality of the foregoing, the powers: including all of
the following:
(1) To adopt bylaws for the regulation of its affairs and the conduct of its business and to prescribe rules, regulations and policies in connection with the performance of its functions and duties;
(2) To adopt an official seal and alter the same at pleasure;
(3) To maintain an office at such place or places as it may determine;
(4) To sue and be sued in its own name, plead and be impleaded;
(5) To receive, administer and comply with the conditions and requirements respecting any gift, grant or donation of any property or money;
(6) To make and execute
financing agreements, security documents and other contracts and instruments
necessary or convenient in the exercise of the powers and functions of the authority
agency under this Chapter; Article;
(7) To acquire by purchase, lease, gift or otherwise, but not by eminent domain, or to obtain options for the acquisition of any property, real or personal, improved or unimproved, and interests in land less than the fee thereof, for the construction, operation or maintenance of any project;
(8) To sell, lease, exchange, transfer or otherwise dispose of, or to grant options for any such purposes with respect to, any real or personal property or interest therein;
(9) To pledge or assign
revenues of the authority; agency;
(10) To construct, acquire, own,
repair, maintain, extend, improve, rehabilitate, renovate, furnish and equip
one or more projects and to pay all or any part of the costs thereof from the
proceeds of bonds of the authority agency or from any
contribution, gift or donation or other funds made available to the authority
agency for such purpose;
(11) To fix, charge and collect revenues with respect to any project;
(12) To employ consulting engineers,
architects, attorneys, real estate counselors, appraisers and such other
consultants and employees as may be required in the judgment of the authority
agency and to fix and pay their compensation from funds available to
the authority agency therefor and to select and retain subject to
approval of the Local Government Commission the financial consultants,
underwriters and bond attorneys to be associated with the issuance of any bonds
and to pay for services rendered by underwriters, financial consultants or bond
attorneys out of the proceeds of any such issue with regard to which the
services were performed; and
(13) To do all acts and things
necessary, convenient or desirable to carry out the purposes, and to exercise
the powers herein granted. granted in this Article.
"§ 159D-6. Bonds.
(a) The authority
agency is hereby authorized to provide for the issuance, at
one time or from time to time, of bonds of the authority agency for
the purpose of paying all or any part of the cost of any project. The principal
of, the interest on and any premium payable under the redemption of such bonds
shall be payable solely from the funds herein authorized for such payment. The
bonds of each issue shall bear interest as may be determined by the Local
Government Commission of North Carolina with the approval of the authority agency
and the obligor irrespective of the limitations of G.S. 24-1.1, as amended,
and successor provisions. The bonds of each issue shall be dated, shall mature
at such time or times not exceeding 30 years from the date of their issuance,
and may be made redeemable before maturity at such price or prices and under
such terms and conditions, as may be fixed by the authority agency prior
to the issuance of the bonds. The authority agency shall
determine the form and the manner of execution of the bonds, including any
interest coupons to be attached thereto, and shall fix the denomination or
denominations of the bonds and the place or places of payment of principal and
interest. In case any officer whose signature or a facsimile of whose signature
shall appear appears on any bonds or coupons shall cease ceases
to be such that officer before the delivery of such the
bonds, such the signature or such the facsimile
shall nevertheless be valid and sufficient for all purposes the same as if he
the officer had remained in office until such delivery. The authority
agency may also provide for the authentication of the bonds by a
trustee or fiscal agent. The bonds may be issued in coupon or in fully
registered form, or both, as the authority may determine, and provision may be
made for the registration of any coupon bonds as to principal alone and also as
to both principal and interest, and for the reconversion into coupon bonds of
any bonds registered as to both principal and interest, and for the interchange
of registered and coupon bonds.
(b) The proceeds
of the bonds of each issue shall be used solely for the payment of the cost of
the project or projects, or a portion thereof, for which such the bonds
shall have been were issued, and shall be disbursed in such
manner and under such restrictions, if any, as the authority agency may
provide in the financing agreement and the security document. If the proceeds
of the bonds of any issue, by reason of increased construction costs or error
in estimates or otherwise, shall be are less than such cost,
additional bonds may in like manner be issued to provide the amount of such
deficiency.
(c) The proceeds of bonds issued pursuant to this Article shall not be used to refinance the cost of a project. For the purposes of this section, a cost of a project is considered refinanced if both of the following conditions are met:
(1) The cost is initially paid from sources other than bond proceeds, and the original expenditure is to be reimbursed from bond proceeds.
(2) The original expenditure was paid more than 60 days before the agency took some action indicating its intent that the expenditure would be financed or reimbursed from bond proceeds.
(d) Notwithstanding subsection (c) of this section, preliminary expenditures that are incurred prior to the commencement of the acquisition, construction, or rehabilitation of a project, such as architectural costs, engineering costs, surveying costs, soil testing costs, bond issuance costs, and other similar costs, may be reimbursed from bond proceeds even if these costs are incurred or paid more than 60 days prior to the agency's action. This exception that allows preliminary expenditures to be reimbursed from bond proceeds, whether or not they are incurred or paid within 60 days of the agency's action, does not include costs that are incurred incident to the commencement of the construction of a project, such as expenditures for land acquisition and site preparation. In any event, an expenditure originally paid before the agency took some action indicating its intent that the expenditures would be financed or reimbursed from bond proceeds may be reimbursed from bond proceeds only if the agency finds that reimbursing those costs from bond proceeds will promote the purposes of this Article.
The authority may issue interim receipts or temporary bonds,
with or without coupons, exchangeable for definitive bonds when such bonds have
been executed and are available for delivery. The authority may also provide
for the replacement of any bonds which shall become mutilated or shall be
destroyed or lost.
(e) Bonds may be
issued under the provisions of this Chapter Article without
obtaining, except as otherwise expressly provided in this Chapter, Article,
the consent of the State or of any political subdivision or of any
agency of either thereof, State or of any political subdivision and
without any other proceedings or the happening of any conditions or things
other than those proceedings, conditions or things which are specifically
required by this Chapter Article and the provisions of the
financing agreement and security document authorizing the issuance of such
bonds and securing the same.
"§ 159D-7.
Approval of project. project by Secretary of Commerce.
(a) Approval
Required. - No bonds may be issued by the authority agency
pursuant to this Article unless the project for which the their issuance
thereof is proposed is first approved by the Secretary of Commerce. The authority
agency shall file an application for approval of its proposed
project with the Secretary of Commerce, and shall notify the Local Government
Commission of such filing.
(b) Findings. -
The Secretary shall not approve any proposed project unless he shall
make the Secretary makes all of the following, applicable findings:
(1) In the case of a proposed industrial project,
a. That the
operator of the proposed project pays, or has agreed to pay thereafter, an
average weekly manufacturing wage that (i) which is above the
average weekly manufacturing wage paid in the county in which the project is to
be located or (ii) which is not less than ten percent (10%) above the
average weekly manufacturing wage paid in the State; and
b. That the
proposed project will not have a materially adverse effect on the environment;
environment.
(2) In the case of a
proposed pollution control project, that such project will have a materially
favorable impact on the environment or will prevent or diminish materially the
impact of pollution which would otherwise occur; and occur.
(2a) In the case of a hazardous waste
facility or low-level radioactive waste facility which that is
used as a reduction, recovery or recycling facility, that such project will
further the waste management goals of North Carolina and will not have an
adverse effect upon public health or a significant adverse effect on the environment;
and environment.
(3) In any case (whether the proposed project is an industrial or a pollution control project),
a. That the jobs to be generated or saved, directly or indirectly, by the proposed project will be large enough in number to have a measurable impact on the area immediately surrounding the proposed project and will be commensurate with the size and cost of the proposed project,
b. That the proposed operator of the proposed project has demonstrated or can demonstrate the capability to operate such project, and
c. That the
financing of such project by the authority agency will not cause
or result in the abandonment of an existing industrial or manufacturing
facility of the proposed operator or an affiliate elsewhere within the State
unless the facility is to be abandoned because of obsolescence, lack of
available labor in the area, or site limitations.
(c) Initial Operator. -
In no case shall the Secretary of Commerce If the initial proposed
operator of a project is not expected to be the operator for the term of the
bonds proposed to be issued, the Secretary may make the findings required
pursuant to subdivisions (b)(1)a. and (3)b. of this section only with respect
to the initial operator. The initial operator shall be identified in the
application for approval of the proposed project.
(d) Public Hearing. - The Secretary of Commerce shall not approve any proposed project pursuant to this section unless the governing body of the county in which the project is located has first conducted a public hearing and, at or after the public hearing, approved in principle the issuance of bonds under this Article for the purpose of paying all or part of the cost of the proposed project. Notice of the public hearing shall be published at least once in at least one newspaper of general circulation in the county not less than 14 days before the public hearing. The notice shall describe generally the bonds proposed to be issued and the proposed project, including its general location, and any other information the governing body considers appropriate or the Secretary of Commerce prescribes for the purpose of providing the Secretary with the views of the community. The notice shall also state that following the public hearing the agency intends to file an application for approval of the proposed project with the Secretary of Commerce.
(e) Certificate
of Department of Environment and Natural Resources. - The Secretary of Commerce
shall not make the findings required by subdivisions (b) (1)b and
(2) of this section unless he shall have the Secretary has first
received a certification from the Department of Environment and Natural
Resources that, in the case of a proposed industrial project, the proposed
project will not have a materially adverse effect on the environment and that,
in the case of a proposed pollution control project, the proposed project will
have a materially favorable impact on the environment or will prevent or
diminish materially the impact of pollution which would otherwise occur. In
no case shall the The Secretary of Commerce shall not make
the findings required by subdivision (b) (2a) of this section unless
he shall have the Secretary has first received a certification
from the Department of Environment and Natural Resources that the proposed
project is environmentally sound, will not have an adverse effect on public
health and will further the waste management goals of North Carolina. In any
case where the Secretary shall make The Secretary of Commerce
shall deliver a copy of the application to the Department of Environment and
Natural Resources. The Department of Environment and Natural Resources shall
provide each certification to the Secretary of Commerce within seven days after
the applicant satisfactorily demonstrates to it that all permits, including
environmental permits, necessary for the construction of the proposed project
have been obtained, unless the agency consents to a longer period of time.
(f) Waiver
of Wage Requirement. - If the Secretary of Commerce has made all of the
required findings respecting a proposed industrial project, except that
prescribed in subdivision (b) (1)a of this section, the Secretary may,
in his the Secretary's discretion, approve the proposed project
if he shall have the Secretary has received (i) a resolution of
the governing body of the county in which the proposed project is to be located
requesting that the proposed project be approved notwithstanding that the
operator will not pay an average weekly manufacturing wage above the average
weekly manufacturing wage in the county and (ii) a letter from an appropriate State
official, selected by the Secretary, to the effect that unemployment in the
county is especially severe.
(g) Rules. - To
facilitate his the Secretary's review of each proposed project,
the Secretary may require the authority agency to obtain and
submit such data and information about such project as the Secretary may
prescribe. In addition, the Secretary may, in his discretion, request the
authority to hold a public hearing on the proposed project for the purpose of
providing the Secretary directly with the views of the community to be
affected. The Secretary may also prescribe such forms and such rules and
regulations as he shall deem the Secretary considers reasonably
necessary to implement the provisions of this section.
(h) Certificate
of Approval. - If the Secretary approves the proposed project, he the
Secretary shall prepare a certificate of approval evidencing such approval
and setting forth his the findings and shall cause said the
certificate of approval to be published in a newspaper of general
circulation within the county in which the proposed project is to be located.
Any such approval shall be reviewable as provided in Article 4 of Chapter 150B
of the General Statutes of North Carolina only by an action filed,
within 30 days after notice of such findings and approval shall have been so
published, in the Superior Court of Wake County. Such The superior
court is hereby vested with jurisdiction to hear such action, but if no such
action is filed within the 30 days herein prescribed, the validity of such
approval shall be conclusively presumed, and no court shall have authority to
inquire into such approval. Copies of the certificate of approval of the
proposed project will be given to the authority, agency, the
governing body of the county in which the proposed project is to be located and
the secretary of the Local Government Commission.
Such The certificate of approval shall become
effective immediately following the expiration of such the 30-day
period or the expiration of any appeal period after a final determination by
any court of any action timely filed pursuant to this section. Such The
certificate shall expire one year after its date unless extended by the
Secretary who shall not extend such the certificate unless he
shall the Secretary again approve approves the
proposed project as provided in this section. If bonds are issued
within that year pursuant to the authorization of this Article or Chapter 159C
of the General Statutes to pay all or part of the costs of the project,
however, the certificate expires three years after the date of the first
issuance of the bonds.
(i) Certificate
Issued Under Chapter 159C Effective. - Any certificate of approval with
respect to a project which has become effective pursuant to G.S. 159C-7 shall
be deemed to satisfy satisfies the requirements of this section to
the extent that the findings made by the Secretary pursuant to G.S. 159C-7 are
consistent with the findings required to be made by the Secretary pursuant hereto.
to this section.
"§ 159D-8. Approval of bonds.
(a) No bonds may
be issued by the authority agency pursuant to this Article unless
the issuance thereof is first approved by the Local Government
Commission.
The authority agency shall file an application
for approval of its proposed bond issue with the secretary of the Local
Government Commission, and shall notify the Secretary of the Department of
Commerce of such filing.
(b) In determining whether a proposed bond issue should be approved, the Local Government Commission may consider, without limitation, the following:
(1) Whether the proposed operator and obligor have demonstrated or can demonstrate the financial responsibility and capability to fulfill their obligations with respect to the financing agreement. In making such determination, the commission may consider the operator's experience and the obligor's ratio of current assets to current liabilities, net worth, earnings trends and coverage of fixed charges, the nature of the industry or business involved and its stability and any additional security such as insurance, guaranties or property to be pledged or secure such bonds.
(2) Whether the political subdivisions in or near which the proposed project is to be located have the ability to cope satisfactorily with the impact of such project and to provide, or cause to be provided, the public facilities and services, including utilities, that will be necessary for such project and on account of any increase in population which are expected to result therefrom.
(3) Whether the proposed date and manner of sale will have an adverse effect upon any scheduled or anticipated sale of obligations by the State or any political subdivision or any agency of either of them.
(c) To facilitate
the review of the proposed bond issue by the commission, the Secretary may
require the authority agency to obtain and submit such financial
data and information about the proposed bond issue and the security therefor,
including the proposed prospectus or offering circular, the proposed financing
agreement and security document and annual and other financial reports and
statements of the obligor, as the Secretary may prescribe. The Secretary may
also prescribe such forms and such rules and regulations as he
shall deem that the Secretary considers reasonably necessary to
implement the provisions of this section.
"§ 159D-9. Sale of bonds.
Bonds issued under this Article may be sold in such
manner, either at public or private sale, and for such price as the Local
Government Commission shall determine determines to be for the
best interests of the authority agency and effectuate best the
purposes of this Chapter Article irrespective of the interest
limitations set forth in G.S. 24-1.1, as amended, and successor provisions
provided that such sale shall be provisions, as long as the sale is approved
by the authority agency and the obligor.
"§ 159D-10. Location of projects.
Except as provided in this section, any Any project
of the authority agency shall be located within the boundaries of
a county which is a member of the authority. A portion or portions of
any project including, but not limited to, any real or personal property or
improvements necessary or convenient for the construction, maintenance, and
operation of the project, may be located in a county or counties other than the
county in which the principal part of the project is located so long as the
additional portion or portions constitute functionally appurtenant or
incidental facilities and the governing body of each other county in which the
additional portion or portions of the project is or are located approves the
project. the State. Bonds may not be issued to finance any project
or group of projects in any county of the State unless the board of
commissioners for the county in which the project is located has consented to
the location of the project within the county.
"§ 159D-11. Financing agreements.
(a) Every financing agreement shall provide that:
(1) Repealed by Session Laws 1987, c. 517, s. 7.
(2) The amounts payable
under the financing agreement shall be sufficient to pay all of the principal
of and interest and redemption premium, if any, and interest on the bonds that
shall be issued by the authority agency to pay the cost of
the project as the same shall they respectively become due;
(3) The obligor shall pay
all costs incurred by the authority agency in connection with the
financing and administration of the project, except as may be paid out of the
proceeds of bonds or otherwise, including, but without limitation, insurance
costs, the cost of administering the financing agreement and the security
document and the fees and expenses of the fiscal agent or trustee, paying
agents, attorneys, consultants and others;
(4) The obligor shall pay all the costs and expenses of operation, maintenance and upkeep of the project; and
(5) The obligor's
obligation to provide for the payment of the bonds in full shall not be subject
to cancellation, termination or abatement until such payment of the
bonds or provision for payment has been therefor shall be made.
(b) The financing agreement may be in the nature of:
(1) A sale and leaseback,
(2) A lease purchase,
(3) A conditional sale,
(4) An installment sale,
(5) A secured or unsecured loan,
(6) A loan and mortgage, or
(7) Another Other
similar transaction.
(c) The financing
agreement, if in the nature of a lease agreement, shall either provide that the
obligor shall have has an option to purchase, or require that the
obligor purchase, the project upon the expiration or termination of the
financing agreement subject to the condition that payment in full of the principal
of, and the interest and any redemption premium on, the bonds, or provision for
payment has therefor, shall have been made.
(d) The financing
agreement may provide the authority agency with rights and
remedies in the event of a default by the obligor thereunder under it
including, without limitation, any one or more of the following:
(1) Acceleration of all amounts payable under the financing agreement;
(2) Reentry and repossession of the project;
(3) Termination of the financing agreement;
(4) Leasing or sale or fore-closure
[sic] foreclosure of the project to others; and
(5) Taking whatever actions at law or in equity may appear necessary or desirable to collect the amounts payable under, and to enforce covenants made in, the financing agreement.
(e) The authority's agency's
interest in a project under a financing agreement may be that of owner,
lessor, lessee, conditional or installment vendor, mortgagor, mortgagee,
secured party or otherwise, but the authority agency need not
have any ownership or possessory interest in the project.
(f) The authority
agency may assign all or any of its rights and remedies under the
financing agreement to the trustee or bondholders under the security document.
(g) Any such The
financing agreement may contain such any additional
provisions as in the determination of the authority the agency
considers are necessary or convenient to effectuate the purposes of
this Chapter. Article.
"§ 159D-12. Security documents.
(a) Bonds issued
under the provisions of this Chapter Article may be secured by a
security document which may be a trust instrument between the authority agency
and a bank or trust company or individual within the State, or a bank or a
trust company without the State, as trustee. Such security document may pledge
and assign the revenues provided for the security of the bonds, including
proceeds from the sale of any project, or part thereof, insurance proceeds and
condemnation awards, and may convey or mortgage the project and other property
to secure a bond issue.
The revenues and other funds derived from the project, except
such part thereof as may be necessary to provide reserves therefor, if any, any
part necessary to provide reserves shall be set aside at such regular
intervals as may be provided in such security document in a sinking fund which
may be thereby pledged to, and charged with, the payment of the
principal of and the interest on such bonds as the same shall they become
due and the redemption price or the purchase price of bonds retired by call or
purchase as therein provided. Such pledge shall be valid and binding from the
time when the pledge is made. The revenues so pledged and thereafter received
by the authority agency shall immediately be subject to the lien
of such pledge without any physical delivery thereof or further act, and the
lien of any such pledge shall be valid and binding as against all parties
having claims of any kind in tort, contract or otherwise against the authority,
agency, irrespective of whether such parties have notice thereof.
The use and disposition of money to the credit of such sinking fund shall be
subject to the provisions of the security document. Such security document may
contain such provisions for protecting and enforcing the rights and remedies of
the bondholders as may be reasonable and proper and not in violation of law,
including, without limitation, any one or more of the following:
(1) Acceleration of all amounts payable under the security document;
(2) Appointment of a receiver to manage the project and any other property mortgaged or assigned as security for the bonds;
(3) Foreclosure and sale of the project and any other property mortgaged or assigned as security for the bonds; and
(4) Rights to bring and maintain such other actions at law or in equity as may appear necessary or desirable to collect the amounts payable under, or to enforce the covenants made in, the security document.
(b) It shall be
is lawful for any bank or trust company incorporated under the laws
of this State which may act as depositary of the proceeds of bonds, revenues or
other funds provided under this Chapter Article to furnish such
indemnifying bonds or to pledge such securities as may be required by the authority.
agency. All expenses incurred in carrying out the provisions of such
security document may be treated as a part of the cost of the project in
connection with which bonds are issued or as an expense of administration of
such project.
The authority agency may subordinate the bonds
or its rights under the financing agreement or otherwise to any prior,
contemporaneous or future securities or obligations or lien, mortgage or other
security interest.
Any such security document may contain such additional
provisions as in the determination of the authority agency are
necessary or convenient or effectuate the purposes of this Chapter. Article.
"§ 159D-13. Trust funds.
Notwithstanding any other provisions of law to the contrary,
all money received pursuant to the authority of this Chapter, Article,
whether as proceeds from the sale of bonds or as revenues, shall be
deemed to be are trust funds to be held and applied solely as
provided in this Chapter. Article. The security document may
provide that any of such moneys the money may be temporarily
invested and reinvested pending the its disbursement thereof in
such any securities and other investments as shall be provided
in such security document, and shall provide that any officer with whom, or any
bank or trust company with which, such moneys shall be the money is deposited
shall act as trustee of such moneys and shall hold and apply the same
it for the purpose hereof, of this Article, subject to
such any regulations as this Chapter Article and
such the security document may provide.
"§ 159D-14. Tax exemption.
The authority agency shall not be is
not required to pay any taxes on any project or on any other property owned
by the authority agency under the provisions of this Chapter Article
or upon the income therefrom. from the property.
The interest on bonds issued by the authority agency
shall be is exempt from all income taxes within the
State.
All projects and all transactions therefor shall be for
them are subject to taxation to the extent such projects and
transactions they would be subject to taxation if no public body
were involved therewith. with them.
"§ 159D-15. Construction contracts.
The authority agency may agree with the
prospective operator that all contracts relating to the acquisition,
construction, installation and equipping of a project shall be solicited,
negotiated, awarded and executed by the prospective operator and its agents
subject only to such approval by the authority agency as the authority
agency may require in such agreement. Such agreement may provide
that the authority agency may, out of the proceeds of bonds, make
advances to or reimburse the operator for all or a portion of its costs
incurred in connection with such contracts.
"§ 159D-16. Conflict of interest.
If any officer, commissioner or employee of the authority agency
shall be is interested either directly or indirectly in any
contract with the authority, agency, such interest shall be
disclosed to the authority agency and shall be set forth in the
minutes of the authority, agency, and the officer, commissioner,
employee or member having such interest therein shall not participate on
behalf of the authority agency in the authorization of any
such contract; provided, however, that this section shall the project.
This section does not apply to the ownership of less than one per centum
percent (1%) of the stock of any operator or obligor. Failure to
take any or all actions necessary to carry out the purposes of this section shall
does not affect the validity of bonds issued pursuant to the
provisions of this Chapter. Article.
"§ 159D-17. Credit of State not pledged.
Bonds issued under the provisions of this Chapter Article
shall do not not be deemed to constitute a debt of the
State or any political subdivision or any agency thereof or a pledge of
the faith and credit of the State or any political subdivision or any such
agency, subdivisions, but shall be payable solely from the revenues
and other funds provided therefor. for payment. Each bond issued
under this Chapter shall contain on the face thereof its face a
statement to the effect that the authority agency shall not be
obligated to pay the same bonds or the interest thereon on
it except from the revenues and other funds pledged therefor for
payment and that neither the faith and credit nor the taxing power of the
State or any political subdivision or any agency thereof is pledged to
the payment of the principal of or the interest on such the bonds.
"§ 159D-18. Bonds eligible for investment.
Bonds issued by an authority the agency under
the provisions of this Chapter Article are hereby made securities
in which all public officers and agencies of the State and all political
subdivisions, and all insurance companies, trust companies, banking
associations, investment companies, executors, administrators, trustees and
other fiduciaries may properly and legally invest funds, including capital in
their control or belonging to them.
"§ 159D-19. Revenue refunding bonds.
(a) The authority agency
is hereby authorized to provide by resolution for the issuance of
refunding bonds of the authority agency for the purpose of
refunding any bonds then outstanding which that shall have
been issued under the provisions of this Chapter, Article, or
under the provisions of Chapter 159C of the General Statutes, including the
payment of any redemption premium thereon and any interest accrued or to
accrue to the date of redemption of such bonds, and, if deemed considered
advisable by the authority, agency, for either or both of the
following additional purposes:
(1) Constructing improvements, additions, extensions or enlargements of the project or projects in connection with which the bonds to be refunded shall have been issued; and
(2) Paying all or any part of the cost of any additional project or projects.
(a1) The issuance of such bonds,
the maturities and other details thereof, the rights of the holders thereof,
and the rights, duties and obligations of the authority agency in
respect to the same shall be bonds are governed by the provisions
of this Chapter which Article that relate to the issuance of bonds,
insofar as such provisions may be appropriate therefor. bonds.
The approvals required by G.S. 159D-7 and G.S. 159D-8
shall be obtained prior to the issuance of any refunding bonds; provided,
however, bonds, except that in the case where the refunding bonds of
all or a portion of an issue are to be issued solely for the purpose of
refunding outstanding bonds issued under this Chapter, Article, the
approval required by G.S. 159D-7 shall not be is not required as
to the project financed with the bonds to be refunded.
(b) Refunding bonds
issued under this section may be sold or exchanged for outstanding bonds issued
under this Chapter Article and, if sold, the proceeds thereof may
be applied, in addition to any other authorized purposes, to the purchase,
redemption or payment of such outstanding bonds. Refunding bonds may be issued,
in the determination of the authority, agency, at any time not
more than five years prior to the date of maturity or maturities or the date
selected for the redemption of the bonds being refunded thereby. Pending the
application of the proceeds of such refunding bonds, with any other available
funds, to the payment of the principal of and accrued interest and any
redemption premium on the bonds being refunded, and, if so provided or
permitted in the security document securing the same, bonds to
the payment of any interest on such refunding bonds, such proceeds may be
invested in direct obligations of, or obligations the principal of and the
interest on which are unconditionally guaranteed by, the United States of
America which shall if these obligations mature or which shall
be are subject to redemption by the holder thereof, at the option
of such holder, holder, at the holder's option not later than the
respective dates when the proceeds, together with the interest accruing thereon
on them will be required for the purposes intended.
"§ 159D-20. No power of eminent domain.
The authority agency shall not have any right
or power to acquire any property through the exercise of eminent domain or any
proceedings in the nature of eminent domain.
"§
159D-21. Dissolution of the authority.
Whenever the board of commissioners of the authority and
the governing bodies of two-thirds of the counties which are then members of
the authority shall by joint resolution determine that the purposes for which
the authority was formed have been substantially fulfilled and that all bonds
theretofore issued and all other obligations theretofore incurred by the
authority have been fully paid or satisfied, such board of commissioners and
governing bodies may declare the authority to be dissolved. On the effective
date of such joint resolution, the title to all funds and other property owned
by the authority at the time of such dissolution shall vest as provided in said
joint resolution, and possession of such funds and other property shall
forthwith be delivered as provided in said joint resolution.
"§
159D-22. Annual reports; application of Article 3, Subchapter III of
Chapter 159.
The authority shall, promptly following the close of each
calendar year, submit an annual report of its activities for the preceding year
to the governing bodies of the counties which are then members of the
authority. Each such report shall set forth a complete operating and financial
statement covering the operations of the authority during such year.
The provisions of Article 3, Subchapter III of Chapter 159
of the General Statutes of North Carolina entitled 'The Local Government Budget
and Fiscal Control Act' shall have no application to the authority.
"§ 159D-23. Application of Article 9 of Chapter 25.
The provisions of G.S. 25-9-104(e) and G.S. 25-9-302(6)
to the contrary notwithstanding, the provisions of Article 9 of North Carolina
Uniform Commercial Code, being G.S. 25-9-101 to 25-9-607, inclusive, shall
apply [to] Code apply to transactions under this Chapter 159D Article
to the same extent the provisions of such Article 9 would apply were as
if G.S. 25-9-104(e) and G.S. 25-9-302(6) hereby were repealed.
"§ 159D-24. Officers not liable.
No commissioner of any authority member of the
Board of Directors of the agency shall be subject to any personal liability
or accountability by reason of his the issuance or execution of
any bonds or the issuance thereof. bonds.
"§ 159D-25. Additional method.
The foregoing sections of this Chapter Article shall
be deemed to provide an additional and alternative method for the doing of
the things authorized thereby and shall be regarded as are supplemental
and additional to powers conferred by other laws, and shall not be regarded
as in derogation of any powers now existing; provided, however, that the laws.
They do not derogate any other powers. The issuance of bonds or
refunding bonds under the provisions of this Chapter Article need
not comply with the requirements of any other law applicable to the issuance of
bonds.
"§ 159D-26. Liberal construction.
This Chapter, Article, being necessary for the
prosperity and welfare of the State and its inhabitants, shall be liberally
construed to effect the purposes hereof. its purposes.
"§ 159D-27. Inconsistent laws inapplicable.
Insofar as the provisions of this Chapter Article are
inconsistent with the provisions of any general, special or local laws, or
parts thereof, the provisions of this Chapter Article shall be
controlling.
"ARTICLE 2.
"Private Educational Capital Facilities
Finance Act.
"§ 159D-35. Short title.
This Chapter Article shall be known, and may be
cited, as the 'Private Educational Capital Facilities Finance
Act.'
"§ 159D-36. Legislative findings.
It is hereby declared that for the benefit of the people
of the State of North Carolina, the increase of their commerce, welfare and
prosperity and the improvement of their health and living conditions it is
essential that they be given the fullest opportunity to learn and to develop
their intellectual capacities; that it is essential for institutions for higher
education and institutions for elementary and secondary education within the
State to be able to construct and renovate facilities to assist its citizens in
achieving the fullest development of their intellectual capacities; and that it
is the purpose of this Chapter Article to provide a measure of
assistance and an alternative method to enable private institutions for higher
education and institutions for elementary and secondary education in the State
to provide the facilities and the structures that are needed to accomplish the
purposes of this Chapter, Article, all to the public benefit and
good, to the extent and in the manner provided herein. in this
Article.
It is hereby further declared that this purpose will
benefit the people as a way to improve student learning, increase learning
opportunities for all students, encourage the use of different and innovative
teaching methods, create new professional opportunities for teachers, provide
parents and students with expanded choices in the types of educational
opportunities that are available, and lower the overall cost of education to
the State and to parents and students.
The General Assembly also finds that the private sector often provides services and opportunities to the people of the State of North Carolina in activities that constitute a public purpose, and that these activities by the private sector are to be fostered and encouraged. The people of the State of North Carolina will benefit from the enactment of laws and creation of programs that assist the private sector in obtaining financing for capital improvements of facilities that will be used in conducting these activities.
"§ 159D-37. Definitions.
As used or referred to in this Chapter, Article, the
following words and terms shall have the following meanings, unless the
context clearly indicates otherwise:
(1) 'Agency' means the
North Carolina Educational Capital Facilities Finance Agency created
by this Chapter, or, should said this agency be abolished or
otherwise divested of its functions under this Chapter, Article, the
public body succeeding it in its principal functions, or upon which are
conferred by law the rights, powers and duties given by this Chapter Article
to the agency.
(1a) 'Bonds' or 'notes' means the revenue bonds or bond anticipation notes, respectively, authorized to be issued by the agency under this Article, including revenue refunding bonds, notwithstanding that they may be secured by a deed of trust or the full faith and credit of a participating institution or any other lawfully pledged security of a participating institution.
(2) 'Cost', as applied to
any project or any portion thereof of a project financed under
the provisions of this Chapter, Article, means all or any part of
the cost of construction, acquisition, alteration, enlargement, reconstruction
and remodeling of a project, including all lands, structures, real or personal
property, rights, rights-of-way, franchises, easements and interests acquired
or used for or in connection with a project, the cost of demolishing or
removing any buildings or structures on land so acquired, including the cost of
acquiring any lands to which such buildings or structures may be moved, the
cost of all machinery and equipment, financing charges, interest prior to and
during construction and, if deemed advisable by the agency, for a period not
exceeding two years after the estimated date of completion of construction, the
cost of engineering and architectural surveys, plans and specifications, the
cost of consulting and legal services and other expenses necessary or incident
to determining the feasibility or practicability of constructing or equipping a
project, the cost of administrative and other expenses necessary or incident to
the construction or acquisition of a project and the financing of the
construction or acquisition thereof, including reasonable provision for working
capital and a reserve for debt service, and the cost of reimbursing any
participating institution for any payments made for any cost described above or
the refinancing of any cost described above, including any evidence of
indebtedness incurred to finance such cost; provided, however, that no payment
shall be reimbursed or any cost or indebtedness be refinanced if such payment
was made or such cost or indebtedness was incurred before November 25, 1981.
(3) "Project"
means any one or more buildings, structures, improvements, additions,
extensions, enlargements or other facilities for use primarily as a dormitory
or other housing facility, including housing facilities for student nurses, a
dining hall and other food preparation and food service facilities, student
union, administration building, academic building, library, laboratory, research
facility, classroom, athletic facility, health care facility, laundry facility,
and maintenance, storage or utility facility and other structures or facilities
related thereto or required or useful for the instruction of students or the
conducting of research or the operation of an institution for higher education
or an institution for elementary and secondary education, including parking and
other facilities or structures essential or convenient for the orderly conduct
of such an institution, or any combination of the foregoing, and shall also
include landscaping, site preparation, furniture, equipment and machinery and
other similar items necessary or convenient for the operation of an institution
for higher education or an institution for elementary and secondary education
or a particular facility, building or structure thereof in the manner for which
its use is intended but shall not include such items as books, fuel, supplies
or other items the costs of which are customarily deemed to result in a current
operating charge, and shall not include any facility used or to be used for
sectarian instruction or as a place of religious worship nor any facility that
is used or to be used primarily in connection with any part of the program of a
school or department of divinity for any religious denomination.
(4) 'Bonds' or
'notes' means the revenue bonds or bond anticipation notes, respectively,
authorized to be issued by the agency under this Chapter, including revenue
refunding bonds, notwithstanding that the same may be secured by a deed of
trust or the full faith and credit of a participating institution or any other
lawfully pledged security of a participating institution.
(4a) 'Institution for elementary and
secondary education' means a nonprofit institution within the State of North
Carolina authorized by law and engaged or to be engaged in the providing of
kindergarten, elementary, or secondary education, or any combination thereof.
of these.
(5) 'Institution for higher education' means a nonprofit private educational institution within the State of North Carolina authorized by law to provide a program of education beyond the high school level.
(6) 'Participating
institution' means an institution for higher education or education, an
institution for elementary and secondary education education, or a
special purpose institution that, pursuant to the provisions of this Chapter,
Article, undertakes the financing, refinancing, acquiring,
constructing, equipping, providing, owning, repairing, maintaining, extending,
improving, rehabilitating, renovating renovating, or furnishing
of a project or undertakes the refunding or refinancing of obligations or of a
deed of trust or a mortgage or of advances as provided in this Chapter. Article.
(6a) 'Project' means any one or more buildings, structures, equipment, improvements, additions, extensions, enlargements, or other facilities comprising any of the following:
a. Educational facilities used by an institution for higher education or an institution for elementary and secondary education, including dormitories and other housing facilities, housing facilities for student nurses, dining halls and other food preparation and food service facilities, student unions, administration buildings, academic buildings, libraries, laboratories, research facilities, classrooms, athletic facilities, health care facilities, laundry facilities, and other structures or facilities related to these facilities or required or useful for the instruction of students, the conducting of research, or the operation of the institution.
b. Student housing facilities to be owned or operated by an owner or operator other than an institution for higher education or an institution for elementary and secondary education.
c. A special purpose project as defined in G.S. 159C-3.
The term 'project' also includes landscaping, site preparation, furniture, equipment and machinery, and other similar items necessary or convenient for operation of a particular facility, building, or structure in the manner for which its use is intended, and maintenance, storage, or utility facilities and other structures or facilities related to, required, or useful for the operation of the facilities, including parking and other facilities or structures essential or convenient for the orderly conduct of the facility. The term 'project' does not include such items as books, fuel, or supplies or other items the costs of which customarily result in a current operating charge. The term does not include any facility used or to be used for sectarian instruction or as a place of religious worship nor any facility that is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(6b) 'Special purpose institution' means a for-profit or not-for-profit corporation or similar entity that undertakes any of the activities set forth in sub-subdivisions (6a)b. and (6a)c. of this section.
(7) 'State' means the State of North Carolina.
"§
159D-38. Educational Capital facilities finance agency.
(a) There is hereby created
a body politic and corporate to be known as 'North Carolina Educational Capital
Facilities Finance Agency' which shall be constituted a public agency and
an instrumentality of the State for the performance of essential public
functions. The agency shall be governed by a board of directors composed of
seven members. Two of the members of said the board shall be the
State Treasurer and the State Auditor, both of whom shall serve ex officio. The
remaining directors of the agency shall be residents of the State and shall not
hold other public office. The General Assembly upon the recommendation of the
President Pro Tempore of the Senate shall appoint one director in accordance
with G.S. 120-121, the General Assembly upon the recommendation of the Speaker
of the House of Representatives shall appoint one director in accordance
with G.S. 120-121, and the Governor shall appoint three of the directors
of the agency. The five appointive directors of the agency shall be appointed
for staggered four-year terms, two being appointed initially for one year by
the President of the Senate and the Speaker of the House, respectively, and one
for two years, one for three years and one for four years, respectively, as
designated by the Governor. Each Governor, and each director
shall continue in office until his a successor shall be is
duly appointed and qualified, except that any person appointed to fill a
vacancy shall serve only for the unexpired term. Any vacancy in a position held
by an appointive member shall be filled by a new appointment made by the
officer who originally made such the appointment. Any member of
the board of directors shall be is eligible for reappointment.
Each appointive member of the board of directors may be removed by the Governor
for misfeasance, malfeasance or neglect of duty after reasonable notice and a
public hearing, unless the same notice and hearing are in writing
expressly waived. Each appointive member of the board of directors before
entering upon his duties shall take an oath of office to administer the
duties of his office faithfully and impartially and a record of such the
oath shall be filed in the office of the Secretary of State. The Governor
shall designate from among the members of the board of directors a chairman
and a vice-chairman. The terms of the chairman and vice-chairman shall chair
and a vice-chair, whose terms extend to the earlier of either two years or
the date of expiration of their then current terms as members of the board of
directors of the agency. The board of directors shall elect and appoint and
prescribe the duties of a secretary-treasurer and such any other
officers as it shall deem it considers necessary or advisable,
which officers need not be members of the board of directors.
(b) No part of the revenues or assets of the agency shall inure to the benefit of or be distributable to its members or officers or other private persons. The members of the agency shall receive no compensation for their services but shall be entitled to receive, for attendance at meetings of the agency or any committee thereof and for other services for the agency, reimbursement for such actual expenses as may be incurred for travel and subsistence in the performance of official duties and such per diem as is allowed by law for members of other State boards, commissions and committees.
(c) The secretary-treasurer
of the agency shall keep a record of the proceedings of the agency and shall be
custodian of all books, documents and papers filed with the agency, the minute
book or journal of the agency and its official seal. He The
secretary-treasurer shall have authority to cause copies to be made of all
minutes and other records and documents of the agency and to give certificates
under the official seal of the agency to the effect that such copies are true
copies, and all persons dealing with the agency may rely upon such
certificates.
(d) Four members of the
board of directors of the agency shall constitute a quorum and the affirmative
vote of a majority of the members present at a meeting of the board of
directors duly called and held shall be necessary for any action taken by the
board of directors of the agency; provided, however, that the agency.
The board of directors may may, however, appoint an executive
committee to act on behalf of said the board during the period
between regular meetings of said board, and said committee shall have full
power to act upon the vote of a majority of its members. No vacancy in the
membership of the agency shall impair impairs the rights of a
quorum to exercise all the rights and to perform all the duties of the agency.
(e) The North Carolina Educational
Capital Facilities Finance Agency shall be contained within the
Department of State Treasurer as if it had been transferred to that department
by a Type II transfer as defined in G.S. 143A-6(b).
"§ 159D-39. General powers.
The agency shall have all of the powers necessary or
convenient to carry out and effectuate the purposes and provisions of this Chapter,
Article, including, but without limiting the generality of the
foregoing, the power: including all of the following:
(1) To make and execute
contracts and agreements necessary or incidental to the exercise of its powers
and duties under this Chapter, Article, including loan agreements
and agreements of sale or leases with, mortgages and deeds of trust and
conveyances to participating institutions, persons, firms, corporations,
governmental agencies and others and including credit enhancement agreements;
agreements.
(2) To acquire by
purchase, lease, gift or otherwise, or to obtain options for the acquisition of
any property, real or personal, improved or unimproved, including interests in
land in fee or less than fee for any project, upon such terms and at such cost
as shall be agreed upon by the owner and the agency; agency.
(3) To arrange or contract
with any county, city, town or other political subdivision or instrumentality
of the State for the opening or closing of streets or for the furnishing of
utility or other services to any project; project.
(4) To sell, convey, lease
as lessor, mortgage, exchange, transfer, grant a deed of trust in, or otherwise
dispose of, or to grant options for any such these purposes with
respect to, any real or personal property or interest therein; in
property.
(5) To pledge or assign
any money, purchase price payments, rents, loan repayments, charges, fees or
other revenues, including any federally guaranteed securities and moneys
received therefrom from them whether such the securities
are initially acquired by the agency or a participating institution, and any
proceeds derived by the agency from sales of property, insurance, condemnation
awards or other sources; sources.
(6) To pledge or assign
the revenues and receipts from any project and from any loan agreement,
agreement of sale sale, or lease of the lease,
including any loan repayments, purchase price payments, rent and rent,
or other income received thereunder; under a loan agreement,
agreement of sale, or lease.
(7) To borrow money as herein
provided in this Article to carry out and effectuate its corporate
purposes and to issue in evidence thereof bonds and notes for the
purpose of providing funds to pay all or any part of the cost of any project,
to lend money to any participating institution for the acquisition of any
federally guaranteed securities securities, and to issue revenue
refunding bonds; bonds.
(8) To finance, refinance,
acquire, construct, equip, provide, operate, own, repair, maintain, extend,
improve, rehabilitate, renovate and furnish any project and to pay all or any
part of the cost thereof from the proceeds of bonds or notes or from any
contribution, gift or donation or other funds available to the agency for such
purpose; this purpose.
(9) To fix, revise, charge
and collect or cause to be fixed, revised, charged and collected purchase price
payments, rents, loan repayments, fees, rates and charges for the use of, or
services rendered by, any project; project.
(10) To employ fiscal consultants,
consulting engineers, architects, attorneys, feasibility consultants,
appraisers and such any other consultants and employees as may be
required in the judgment of the agency and to fix and pay their compensation from
funds available to the agency therefor; agency.
(11) To conduct studies and surveys
respecting the need for projects and their location, financing and construction;
construction.
(12) To apply for, accept, receive and
agree to and comply with the terms and conditions governing grants, loans,
advances, contributions, interest subsidies and other aid with respect to any
project from federal and State agencies or instrumentalities; instrumentalities.
(13) To sue and be sued in its own
name, plead and be impleaded; impleaded.
(14) To acquire and enter into
commitments to acquire any federally guaranteed security or federally insured
mortgage note and to pledge or otherwise use any such the federally
guaranteed security or federally insured mortgage note in such manner as the
agency deems as the agency considers in its best interest to secure
or otherwise provide a source of repayment on any of its bonds or notes issued
on behalf of any participating institution to finance or refinance the cost of
any project; project.
(15) To make loans to any
participating institution for the cost of a project in accordance with an
agreement between the agency and the participating institution; institution.
(16) To make loans to a participating
institution to refund outstanding loans, obligations, deeds of trust or
advances issued, made or given by such the participating
institutions for the cost of a project; project.
(17) To charge and to apportion among
participating institutions its administrative costs and expenses incurred in
the exercise of its powers and duties conferred by this Chapter; Article.
(18) To adopt an official seal and
alter the same at pleasure; and it at pleasure.
(19) To do all other things necessary
or convenient to carry out the purposes of this Chapter. Article.
"§ 159D-40. Criteria and requirements.
(a) In undertaking
any project pursuant to this Chapter, Article, the agency shall
be guided by and shall observe the following criteria and requirements;
provided that the requirements listed below. The determination
of the agency as to its compliance with such these criteria and
requirements shall be final and conclusive: is conclusive.
(1) No project shall be
sold or leased nor any loan made to any participating institution for
higher education or any institution for elementary and secondary education that
is not financially responsible and capable of fulfilling its obligations,
including its obligations under an agreement of sale or lease or a loan
agreement to make purchase price payments, to pay rent, to make loan
repayments, to operate, repair and maintain at its own expense the project and
to discharge such any other responsibilities as may be imposed
under the agreement of sale or lease or loan agreement; agreement.
(2) Adequate provision
shall be made for the payment of the principal of and the interest on the bonds
and any necessary reserves therefor for payment and for the
operation, repair and maintenance of the project at the expense of the
participating institution; institution.
(3) The public facilities,
including utilities, and public services necessary for the project will be made
available; and available.
(4) The projects shall be
operated to serve and benefit the public and there shall be no discrimination
against any person based on race, creed, color color, or national
origin.
(b) In making these determinations, the agency may consider the participating institution's experience and ratio of current assets to current liabilities; the participating institution's net worth, earnings trends, and coverage of fixed charges; the nature of the project involved; and any additional security for payment of the bonds and performance of the participating institution's obligations under the agreement of sale or lease or loan agreement, such as credit enhancement, insurance, guaranties, or property pledged to secure the payment and performance.
"§ 159D-41. Procedural requirements.
Any participating institution for higher education
or any institution for elementary and secondary education may submit to the
agency, and the agency may consider, a proposal for financing a project using such
forms and following such instructions as may be prescribed by
the agency. Such The proposal shall set forth the type and
location of the project and may include other information and data available
to the institution for higher education or the institution for elementary and
secondary education respecting the project and the extent to which such the
project conforms to the criteria and requirements set forth in this Chapter.
Article. The agency may request the institution for higher
education or the institution for elementary and secondary education applicant
to provide additional information and data respecting the project. The
agency is authorized to make or cause to be made such any investigation,
surveys, studies, reports and reviews as in its judgment are necessary and
desirable to determine the feasibility and desirability of the project, the
extent to which the project will contribute to the health and welfare of the
area in which it will be located, the powers, experience, background, financial
condition, record of service and capability of the management of the institution
for higher education or the institution for elementary and secondary education,
applicant, the extent to which the project otherwise conforms to the
criteria and requirements of this Chapter, Article, and such any
other factors as may be deemed the agency considers relevant
or convenient in carrying out the purposes of this Chapter. Article.
"§ 159D-42. Operations of projects; agreements of sale on leases; conveyance of interest in projects.
(a) The agency may
sell or lease any project to a participating institution for operation and
maintenance or lend money to any participating institution in such manner as
shall to effectuate the purposes of this Chapter, Article,
under a loan agreement or an agreement of sale or lease in form and
substance not inconsistent herewith. Any such with this Article. The loan
agreement or agreement of sale or lease may include provisions that:
(1) The participating
institution shall, at its own expense, operate, repair and maintain the project
covered by such agreement; the agreement.
(2) The purchase price
payments to be made under the agreement of sale, the rent payable under the
agreement of lease or the loan repayments under the loan agreement shall in the
aggregate be not less than an amount sufficient to pay all of the interest,
principal and any redemption premium on the bonds or notes issued by the agency
to pay the cost of the project sold or leased thereunder or with respect
to which the loan was made; made.
(3) The participating
institution shall pay all other costs incurred by the agency in connection with
the providing of the project covered by any such agreement, except such
costs as may be paid out of the proceeds of bonds or notes or
otherwise, including, but without limitation, including insurance
costs, the cost of administering the resolution authorizing the issuance of, or
any trust agreement securing, such the bonds or notes and the
fees and expenses of trustees, paying agents, attorneys, consultants and
others; consultants, and others.
(4) The loan agreement or
the agreement of sale or lease shall terminate not earlier than the date on
which all such bonds and all other obligations incurred by the agency in
connection with the project covered by any such the agreement are
retired or provision for such their retirement is made; and made.
(5) The obligation of the
participating institution to make loan repayments or purchase price payments or
to pay rent shall not be subject to cancellation, termination or abatement by
the participating institution until the bonds have been retired or provision
has been made for such their retirement.
(b) If the agency
has acquired a possessory or ownership interest in any project it has
undertaken on behalf of a participating institution, it shall promptly convey,
without the payment of any consideration, all its right, title and interest in such
the project to such that participating institution
upon the retirement or provision for the retirement of all bonds or notes
issued and obligations incurred by the agency in connection with such that
project.
"§ 159D-43. Construction contracts.
If the agency determines that the purposes of this Chapter
Article will be more effectively served, the agency in its
discretion may award or cause to be awarded contracts for the construction of
any project on behalf of a participating institution upon a negotiated basis as
determined by the agency. The agency shall prescribe such any bid
security requirements and other procedures in connection with the award of such
the contracts as in its judgment shall will protect
the public interest. The agency may by written contract engage the services of
the participating institution in the construction of such the project
and may provide in any such the contract that such the participating
institution, subject to such any conditions and requirements
consistent with the provisions of this Chapter Article as
shall be prescribed in such the contract, may act as an agent
of, or an independent contractor for, the agency for the performance of the
functions described therein, in the contract including the
acquisition of the site and other real property for such the project,
the preparation of plans, specifications and contract documents, the award of
construction and other contracts upon a competitive or negotiated basis, the
construction of such the project directly by such the participating
institution, the inspection and supervision of construction, the employment of
engineers, architects, builders and other contractors and the provision of
money to pay the cost thereof of these functions pending
reimbursement by the agency. Any such The contract may provide
that the agency may, out of proceeds of bonds or notes, make advances to or
reimburse the participating institution for its costs incurred in the
performance of such these functions, and shall set forth the
supporting documents required to be submitted to the agency and the reviews,
examinations and audits that shall be are required in connection therewith
to assure compliance with the provisions of this Chapter Article and
such the contract.
"§ 159D-44. Credit of State not pledged.
Bonds or notes issued under the provisions of this Chapter
Article shall not be secured by a pledge of the faith and credit of
the State or of any political subdivision thereof or be deemed to of
the State, or create an indebtedness of the State, or of any such political
subdivision thereof, of the State requiring any voter approval,
but shall be payable solely from the revenues and other funds provided therefor.
for payment. Each bond or note issued under this Chapter Article
shall contain on the face thereof its face a statement to the
effect that the agency shall not be is not obligated to pay the
same it nor the interest thereon on it except from the
revenues and other funds pledged therefor for its payment and
that neither the faith and credit nor the taxing power of the State or of any
political subdivision thereof of the State is pledged as security
for the payment of the principal of or the interest on such the bond
or note.
Expenses incurred by the agency in carrying out the
provisions of this Chapter Article may be made payable from funds
provided pursuant to, or made available for use under, this Chapter Article
and no liability shall be incurred by the agency hereunder under
this Article beyond the extent to which moneys shall have been so
provided.
"§ 159D-45. Bonds and notes.
(a) The agency is hereby
authorized to provide for the issuance, at one time or from time to time,
of bonds, or notes in anticipation of the issuance of bonds, of the agency to
carry out and effectuate its corporate purposes. The principal of and the
interest on such bonds or notes shall be payable solely from funds provided
under this Chapter Article for such payment. Any such notes may
be made payable from the proceeds of bonds or renewal notes or, in the event
bond or renewal note proceeds are not available, such notes may be paid from
any available revenues or other funds provided therefor. The bonds or notes of
each issue shall be dated and may be made redeemable before maturity at the
option of the agency at such price or prices and upon such terms and conditions
as may be determined by the agency. The bonds may also be made payable from
time to time on demand or tender for purchase by the owner upon such terms and
conditions as may be determined by the agency. Any such bonds or notes shall
bear interest at such rate or rates (including variable rates) as may be
determined by the Local Government Commission of North Carolina with the
approval of the agency. Notes shall mature at such time or times not exceeding
10 years from their date or dates and bonds shall mature at such time or times
not exceeding 40 years from their date or dates, as may be determined by the
agency. The agency shall determine the form and manner of execution of the
bonds or notes, including any interest coupons to be attached thereto, and
shall fix the denomination or denominations and the place or places of payment
of principal and interest, which may be any bank or trust company within or
without the State. In case any officer whose signature or a facsimile of whose
signature shall appear appears on any bonds or notes or coupons
attached thereto shall cease to be such to them ceases to be that officer
before the delivery thereof, such their delivery, the signature
or such facsimile shall nevertheless be valid and sufficient for all
purposes the same as if he the officer had remained in office
until such delivery. The agency may also provide for the authentication
of the bonds or notes by a trustee or fiscal agent. The bonds or notes may be
issued in coupon or in registered form, or both, as the agency may determine,
and provision may be made for the registration of any coupon bonds or notes as
to principal alone and also as to both principal and interest, and for the
reconversion into coupon bonds or notes of any bonds or notes registered as to
both principal and interest, and for the interchange of registered and coupon
bonds or notes. No bonds or notes may be issued by the agency under this Chapter
Article unless the issuance thereof is approved by the Local
Government Commission of North Carolina. Commission.
(b) The agency shall file
with the Secretary of the Local Government Commission an application requesting
approval of the issuance of such the bonds or notes which
shall contain such notes. The application must include any information
and have attached to it such documents concerning the proposed financing
and prospective borrower, vendee or lessee as the Secretary may require. required
by the Secretary.
In determining whether a proposed bond or note issue should
be approved, the Local Government Commission may consider, in addition to the
criteria and requirements mentioned in this Chapter, Article, the
effect of the proposed financing upon any scheduled or proposed sale of
tax-exempt obligations by the State or any of its agencies or departments or by
any unit of local government in the State.
The Local Government Commission shall approve the issuance of
such the bonds or notes if, upon the information and evidence it
receives, it finds and determines that the proposed financing will effectuate
the purposes of this Chapter. Article.
Upon the filing with the Local Government Commission of a
resolution of the agency requesting that its bonds or notes be sold, such the
bonds or notes may be sold in such manner, either at public or private sale,
and for such price as the Local Government Commission shall determine determines
to be for the best interests of the agency and to effectuate best
the purposes of this Chapter, Article, provided that such sale
shall be as long as the sale is approved by the agency.
(c) The proceeds of any
bonds or notes shall be used solely for the purposes for which issued and shall
be disbursed in such manner and under such restrictions, if any, as the agency
may provide in the resolution authorizing the issuance of, or any trust
agreement securing, such the bonds or notes.
(d) Prior to the
preparation of definitive bonds, the agency may, under like restrictions, issue
interim receipts or temporary bonds, with or without coupons, exchangeable for
definitive bonds, when such bonds shall the bonds have been
executed and are available for delivery. The agency may also provide for the
replacement of any bonds or notes which shall become mutilated or shall
be are destroyed or lost.
(e) Bonds or notes may be
issued under the provisions of this Chapter Article without
obtaining, except as otherwise expressly provided in this Chapter, Article,
the consent of any department, division, commission, board, body, bureau or
agency of the State, and without any other proceedings or the happening of any
conditions or things other than those proceedings, conditions or things which
are specifically required by this Chapter Article and the
provisions of the resolution authorizing the issuance of, or any trust
agreement securing, such the bonds or notes.
(f) Before the issuance of bonds pursuant to this Article to finance a project, the Agency shall hold a public hearing with respect to the proposed project and the issuance of the bonds to finance the proposed project. The public hearing may be held at any location designated by the Agency, including at the offices of the Agency in Raleigh, North Carolina.
The public hearing may be conducted by the Agency or by a hearing officer designated by the Agency to conduct public hearings. Notice of the public hearing must be published at least once in at least one newspaper of general circulation in the county where the proposed project is to be located not less than 14 days before the public hearing. The notice must describe generally the bonds proposed to be issued and the proposed project, including its general location, and any other information the Agency considers appropriate. A copy of the notice of public hearing must be mailed to the clerk of the Board of Commissioners of the county in which the proposed project is to be located and to the governing body of any city or town in which the proposed project is to be operated.
"§ 159D-46. Trust agreement or resolution.
In the discretion of the agency any bonds or notes issued
under the provisions of this Chapter Article may be secured by a
trust agreement by and between the agency and a corporate trustee, which may be
any trust company or bank having the powers of a trust company within or
without the State. Such trust agreement or the resolution authorizing the
issuance of such bonds or notes may pledge or assign all or any part of the
revenues of the agency received pursuant to this Chapter, Article, including,
without limitation, fees, loan repayments, purchase price payments, rents,
charges, insurance proceeds, condemnation awards and any other revenues and
funds received in connection with any project and may grant a deed of trust or
a mortgage on any project. Such trust agreement or resolution may contain such
provisions for protecting and enforcing the rights and remedies of the holders
of any such bonds or notes as may be reasonable and proper and not in violation
of law, including covenants setting forth the duties of the agency in relation
to the purposes to which bond or note proceeds may be applied, the disposition
or pledging of the revenues of the agency, including any payments in respect of
any federally guaranteed security or any federally insured mortgage note, the
duties of the agency with respect to the acquisition, construction,
maintenance, repair and operation of any project, the fees, loan repayments,
purchase price payments, rents and charges to be fixed and collected in
connection therewith, the terms and conditions for the issuance of additional
bonds or notes, and the custody, safeguarding and application of all moneys.
All bonds issued under this Chapter Article shall be equally and
ratably secured by a pledge, charge, and lien upon revenues provided for in such
trust agreement or resolution, without priority by reason of number, or of
dates of bonds, execution, or delivery, in accordance with the provisions of
this Chapter Article and of such trust agreement or resolution;
except that the agency may provide in such trust agreement or resolution that
bonds issued pursuant thereto shall to the extent and in the manner prescribed
in such trust agreement or resolution be subordinated and junior in standing,
with respect to the payment of principal and interest and the security thereof,
to any other bonds. It shall be lawful for any bank or trust company
incorporated under the laws of the State which may act as depositary of the
proceeds of bonds or notes, revenues or other money hereunder to furnish such
indemnifying bonds or to pledge such securities as may be required by the
agency. Any such trust agreement or resolution may set off the rights and
remedies, including foreclosure of any deed of trust or mortgage, of the
holders of any bonds or notes and of the trustee, and may restrict the
individual right of action by any such holders. In addition to the foregoing,
any such trust agreement or resolution may contain such other provisions as the
agency may deem considers reasonable and proper for the security
of the holders of any bonds or notes. Expenses incurred in carrying out the
provisions of such trust agreement or resolution may be treated as a part of
the cost of any project or paid from the revenues pledged or assigned to the
payment of the principal of and the interest on bonds or notes or from any
other funds available to the agency.
"§ 159D-47. Revenues; pledges of revenues.
(a) The agency is hereby
authorized to fix and to collect fees, loan repayments, purchase price
payments, rents and charges for the use of any project, and any part or section
thereof, of the project and to contract with any participating
institution for the use thereof. its use. The agency may
require that the participating institution shall operate, repair or
maintain such project and shall bear the cost thereof and other
costs of the agency in connection therewith, with the project all
as may be provided in the agreement of sale or lease, loan agreement or other
contract with the agency, in addition to other obligations imposed under such
the agreement or contract.
(b) The fees, loan
repayments, purchase price payments, rents and charges shall be fixed so as to
provide a fund sufficient, with any other available funds, such other
funds as may be made available therefor, (i) to pay the costs of operating,
repairing and maintaining the project to the extent that adequate provision for
the payment of such costs has not otherwise been provided for, (ii) to pay the
principal of and the interest on all bonds or notes as the same shall they
become due and payable and (iii) to create and maintain any reserves
provided for in the resolution authorizing the issuance of, or any trust
agreement securing, such bonds; and such the bonds. The fees,
loan repayments, purchase price payments, rents and charges may be applied or
pledged to the payment of debt service on the bonds prior to the payment of the
costs of operating, repairing and maintaining the project.
(c) All pledges of fees,
loan repayments, purchase price payments, rents, charges and other revenues
under the provisions of this Chapter Article shall be are
valid and binding from the time when such pledges they are
made. All such revenues so pledged and thereafter received by the agency
shall are immediately be subject to the lien of such the
pledge without any physical delivery thereof or further act, and the
lien of any such the pledge shall be is valid and
binding as against all parties having claims of any kind in tort, contract or
otherwise against the agency, irrespective of whether such the parties
have notice thereof. of it. The resolution or any trust agreement
by which a pledge is created or any loan agreement, agreement of sale or lease
need not be filed or recorded except in the records of the agency.
(d) The State of North
Carolina does pledge to and agree pledges to and agrees with the
holders of any bonds or notes issued by the agency that so long as any of such
the bonds or notes are outstanding and unpaid the State will not
limit or alter the rights vested in the agency at the time of issuance of the
bonds or notes to fix, revise, charge, and collect or cause to be fixed,
revised, charged and collected loan repayments, purchase price payments, rents,
fees and charges for the use of or services rendered by any project in
connection with which the bonds or notes were issued, so as to provide a fund
sufficient, with such other funds as may be made available therefor, any
other available funds to pay the costs of operating, repairing and
maintaining the project, to pay the principal of and the interest on all bonds
and notes as the same shall they become due and payable and payable,
to create and maintain any reserves provided therefor for their
payment, and to fulfill the terms of any agreements made with the
bondholders or noteholders, nor will the State noteholders. The
State will not in any way impair the rights and remedies of the bondholders
or noteholders until the bonds or notes and all costs and expenses in
connection with any action or proceedings by or on behalf of the bondholders or
noteholders, are fully paid, met and discharged.
"§ 159D-48. Trust funds.
Notwithstanding any other provisions of law to the contrary,
all moneys received pursuant to the authority of this Chapter, Article,
including, without limitation, including fees, loan
repayments, purchase price payments, rents, charges, insurance proceeds,
condemnation awards and any other revenues and funds received in connection
with any project, shall be deemed to be are trust funds to be
held and applied solely as provided in this Chapter. Article. The
resolution authorizing the issuance of, or any trust agreement securing, any
bonds or notes may provide that any of such these moneys may be
temporarily invested pending the their disbursement thereof and
shall provide that any officer with whom, or any bank or trust company with
which, such moneys shall be are deposited shall act as trustee of
such moneys and shall hold and apply the same them for the
purposes of this Chapter, Article, subject to such any limitations
as provided in this Chapter Article and such in
the resolution or trust agreement may provide. Any such agreement.
The moneys may be invested as provided in G.S. 159-30, as it may from time
to time be amended.
"§ 159D-49. Remedies.
Any holder of bonds or notes issued under the provisions of
this Chapter Article or any coupons appertaining thereto, and the
trustee under any trust agreement or resolution authorizing the issuance of
such bonds or notes, except to the extent the rights herein given may be
restricted by such trust agreement or resolution, may, either at law or in
equity, by suit, action, mandamus or other proceeding, protect and enforce any
and all rights under the laws of the State or granted hereunder or under such
trust agreement or resolution, or under any other contract executed by the
agency pursuant to this Chapter, Article, and may enforce and
compel the performance of all duties required by this Chapter Article
or by such trust agreement or resolution to be performed by the agency or
by any officer thereof. of the agency.
"§ 159D-50. Investment securities.
All bonds, notes and interest coupons appertaining thereto
issued under this Chapter Article are hereby made investment
securities within the meaning of and for all the purposes of Article 8 of the
Uniform Commercial Code as enacted in this State, whether or not they are of
such form and character as to be investment securities under said Article 8,
that Article, subject only to the provisions of the bonds and notes
pertaining to registration.
"§ 159D-51. Bonds or notes eligible for investment.
Bonds or notes issued under the provisions of this Chapter
Article are hereby made securities in which all public
officers and public bodies of the State and its political subdivisions, and all
insurance companies, trust companies, banking associations, investment
companies, executors, administrators, trustees and other fiduciaries may
properly and legally invest funds, including capital in their control or
belonging to them. Such These bonds or notes are hereby made securities
which may properly and legally be deposited with and received by any State or
municipal officer or any agency or political subdivision of the State for any
purpose for which the deposit of bonds, notes or obligations of this State is now
or may hereafter be authorized by law.
"§ 159D-52. Refunding bonds or notes.
(a) The agency is hereby
authorized to provide for the issuance of refunding bonds or notes for the
purpose of refunding any bonds or notes then outstanding which shall have
been issued under the provisions of this Chapter, Article, including
the payment of any redemption premium thereon and any interest accrued
or to accrue to the date of redemption of such the bonds or notes
and, if deemed considered advisable by the agency, for any
corporate purpose of the agency, including, without limitation:
(1) Constructing improvements, additions, extensions or enlargements of the project in connection with which the bonds or notes to be refunded shall have been issued, and
(2) Paying all or any part of the cost of any additional project.
(b) The issuance
of such refunding bonds or notes, the their maturities
and other details thereof, details the rights of the holders
thereof, their holders, and the rights, duties and obligations of
the agency in respect of the same shall be are governed by the
provisions of this Chapter Article which relate to the issuance
of bonds or notes, insofar as such provisions may be appropriate therefor. as
appropriate.
Refunding bonds or notes may be sold or exchanged for
outstanding bonds or notes issued under this Chapter Article and,
if sold, the proceeds thereof their proceeds, and investment earnings
on them, may be applied, in addition to any other authorized purposes, with
any other available funds, to the purchase, redemption redemption,
or payment of such the bonds or notes, with any other
available funds, being refunded, to the payment of the principal,
accrued interest and any redemption premium on the bonds or notes being
refunded, and, if so provided or permitted in the resolution authorizing the
issuance of, or in the trust agreement securing, such bonds or notes, to the
payment of any interest on such the refunding bonds or
notes bonds, and to the payment of any expenses in connection
with such the refunding. Such The proceeds may be
invested in direct obligations of, or obligations the principal of and the
interest on which are unconditionally guaranteed by, the United States of
America which shall if the obligations mature or which shall
be are subject to redemption by the holders thereof, at the
option of such holders, the holders, at their option not later than
the respective dates when the proceeds, together with the interest accrued
thereon, will be required for the purposes intended.
"§ 159D-53. Annual report.
The agency shall, promptly following the close of each fiscal
year, submit an annual report of its activities under this Chapter Article
for the preceding year to the Governor, the State Auditor, the General
Assembly, the Advisory Budget Commission and the Local Government Commission.
The agency shall cause an audit of its books and accounts relating to its
activities under this Chapter Article to be made at least once in
each year by an independent certified public accountant and the cost thereof
of the audit may be paid from any available moneys of the agency.
"§ 159D-54. Officers not liable.
No member or officer of the agency shall be subject to any
personal liability or accountability by reason of his the issuance or
execution of any bonds or notes or the issuance thereof. notes.
"§ 159D-55. Tax exemption.
The exercise of the powers granted by this Chapter Article
will be in all respects for the benefit of the people of the State and will
promote their health and welfare, and no tax or assessment shall be levied
upon any project undertaken by the agency prior to the retirement or provision
for the retirement of all bonds or notes issued and obligations incurred by the
agency in connection with such project. welfare.
Any bonds or notes issued by the agency under the provisions
of this Chapter Article shall are at all times be free
from taxation by the State or any local unit or political subdivision or other
instrumentality of the State, excepting inheritance or gift taxes, income taxes
on the gain from the transfer of the bonds and notes, and franchise taxes. The
interest on the bonds and notes is not subject to taxation as income.
"§ 159D-56. Conflict of interest.
If any member, officer or employee of the agency shall be is
interested either directly or indirectly, or shall be is an
officer or employee of or have has an ownership interest in any
firm or corporation interested directly or indirectly, in any contract with the
agency, such this interest shall be disclosed to the agency and
shall be set forth in the minutes of the agency, and the member, officer or
employee having such an interest therein in a contract shall
not participate on behalf of the agency in the authorization of any such the
contract.
"§ 159D-57. Additional method.
The foregoing sections of this Chapter Article shall
be deemed to provide an additional and alternative method for the doing of
the things authorized thereby and shall be regarded as and are supplemental
and additional to powers conferred by other laws, laws. and
shall not be regarded as in derogation of any powers now existing; provided,
however, that the This Article does not derogate any existing
powers. The issuance of bonds or notes under the provisions of this Chapter
Article need not comply with the requirements of any other law
applicable to the issuance of bonds or notes."
Section 3. G.S. 159C-3 reads as rewritten:
"§ 159C-3. Definitions.
The following terms, whenever used or referred to in this
Chapter, shall have the following respective meanings, unless a different
meaning clearly appears from the context: definitions apply in this Chapter:
(1) "Agency"
shall include any Agency. - Any agency, bureau, commission, department
department, or instrumentality.
(2) "Air pollution
control facility" shall mean any Air pollution control facility. -
Any structure, equipment equipment, or other facility for,
including any increment in the cost of any structure, equipment equipment,
or facility attributable to, the purpose of treating, neutralizing neutralizing,
or reducing gaseous industrial waste and other air pollutants, including recovery,
treatment, neutralizing neutralizing, or stabilizing plants and
equipment and their appurtenances, which shall have been certified by
the agency government entity having jurisdiction to be in
furtherance of the purpose of abating or controlling atmospheric pollutants or
contaminants.
(3) "Bonds"
shall mean revenue Bonds. - Revenue bonds of an authority issued
under the provisions of this Chapter.
(4) "Cost" Cost.
- This term as applied to any project shall embrace embraces all
capital costs thereof, of the project, including the all
of the following:
a. The
cost of construction, the construction.
b. The
cost of acquisition of all property, including rights in land and other
property, both real and personal and improved and unimproved, the unimproved.
c. The
cost of demolishing, removing or relocating any buildings or structures on
lands so acquired, including the cost of acquiring any lands to which such those
buildings or structures may be moved or relocated, the relocated.
d. The
cost of all machinery and equipment, installation, start-up expenses,
financing charges, and interest prior to, during and for a period not
exceeding one year after completion of construction, the construction.
e. The
cost of engineering and architectural surveys, plans and specifications,
the specifications.
f.
The cost of consultants' and legal services, other expenses necessary or
incident to determining the feasibility or practicability of such the
project, administrative and other expenses necessary or incident to the
acquisition or construction of such the project and the financing
of the acquisition and construction thereof. of the project.
(5) "Governing
body" shall mean the board, commission, council or other body in which the
general legislative powers of any county or other political subdivision are
vested.
(6) "Financing
agreement" shall mean a Financing agreement. - A written
instrument establishing the rights and responsibilities of the authority,
operator, and obligor with respect to a project financed by the issuance of
bonds. A financing agreement may be in the nature of a lease, a lease and
leaseback, a sale and leaseback, a lease purchase, an installment sale and
purchase agreement, a conditional sales agreement, a secured or unsecured loan
agreement or other similar contract and may involve property in addition to the
property financed with the bonds.
(6a) Governing body. - The board, commission, council, or other body in which the general legislative powers of any county or other political subdivision are vested.
(6b) Industrial project. - Any industrial or manufacturing factory, mill, assembly plant, or fabricating plant; freight terminal; industrial research, development, or laboratory facility; industrial processing facility; or distribution facility for industrial or manufactured products.
(7) "Obligor"
shall mean any person or persons, Obligor. - Any person, which may
include the operator, who shall be is obligated under a financing
agreement or guaranty agreement or other contract or agreement to make payments
to, or for the benefit of, the holders of bonds of the authority. Any
requirement of an obligor may be satisfied by any one or more persons who are
defined collectively by this Chapter as the obligor.
(8) "Operator"
shall mean the Operator. - The person entitled to the use or
occupancy of a project.
(9) "Political
subdivision" shall mean any Political subdivision. - Any county,
city, town, other unit of local government or any other governmental
corporation, agency, authority authority, or instrumentality of
the State now or hereafter existing.
(10) "Pollution" and
"pollutants" shall mean any Pollution or pollutants. - Any noxious
or deleterious substances in any air or waters of or adjacent to the State of
North Carolina or affecting the physical, chemical or biological properties of
any air or waters of or adjacent to the State of North Carolina in a manner and
to an extent which renders or is likely to render such the air or
waters harmful or inimical to the public health, safety or welfare, or to
animal, bird or aquatic life, or to the use of such air or waters for domestic,
industrial or agricultural purposes or recreation.
(10a) Pollution control project. - Any air pollution control facility, water pollution control facility, or solid waste disposal facility if the facility is in connection with either an industrial project or a public utility plant.
(11) "Project" shall mean
any land, equipment or any Project. - Any land or equipment or one or
more buildings or other structures, whether or not on the same site or sites,
and any rehabilitation, improvement, renovation or enlargement of, or any
addition to, any building or structure for use as or in connection with (i) any
industrial project for industry which project may be any industrial or
manufacturing factory, mill, assembly plant or fabricating plant, or freight
terminal, or industrial research, development or laboratory facility, or
industrial processing facility or distribution facility for industrial or
manufactured products, or project, (ii) any pollution control
project for industry or for public utilities which project may be any air
pollution control facility, water pollution control facility, or solid waste
disposal facility in connection with any factory, mill or plant described in
clause (i) of this subdivision or in connection with a public utility plant, or
(iii) utilities, (iii) any special purpose project, or (iv) any
combination of projects mentioned in clauses (i) and (ii) (i) through
(iii) of this subdivision. Any project may include all appurtenances and
incidental facilities such as land, headquarters or office facilities,
warehouses, distribution centers, access roads, sidewalks, utilities, railway
sidings, trucking and similar facilities, parking facilities, landing strips
and other facilities for aircraft, waterways, docks, wharves and other
improvements necessary or convenient for the construction, maintenance and
operation of any building or structure, or addition thereto. to it.
(12) "Revenues" shall
mean, with Revenues. - With respect to any project, the rents, fees,
charges, payments, proceeds and other income or profit derived therefrom from
the project or from the financing agreement or security document in
connection therewith. with the project.
(13) "Security document"
shall mean a Security document. - A written instrument or
instruments establishing the rights and responsibilities of the authority
and the holders of bonds issued to finance a project, and which may
provide for, or be in the form of an agreement with, a trustee for the benefit
of such the bondholders. A security document may contain an
assignment, pledge, mortgage or other encumbrance of all or part of the
authority's interest in, or right to receive revenues with respect to, a
project and any other property provided by the operator or other obligor under
a financing agreement and may bear any appropriate title. A financing agreement
and a security document may be combined as one instrument.
(14) "Solid waste" shall
mean solid Solid waste. - Solid waste materials resulting from any
industrial or manufacturing activities or from any pollution control facility.
(15) "Solid waste disposal
facility" shall mean a Solid waste disposal facility. - A facility
for the purpose of treating, burning, compacting, composting, storing or
disposing of solid waste.
(15a) Special purpose project. - Any structure, equipment, or other facility for any one or more of the following purposes:
a. Water systems or facilities, including all plants, works, instrumentalities, and properties used or useful in obtaining, conserving, treating, and distributing water for domestic or industrial use, irrigation, sanitation, fire protection, or any other public or private use.
b. Sewage disposal systems or facilities, including all plants, works, instrumentalities, and properties used or useful in the collection, treatment, purification, or disposal of sewage, other than facilities constituting a water pollution control facility.
c. Public transportation systems, facilities, or equipment, including bus, truck, ferry, and railroad terminals, depots, trackages, vehicles, and ferries, and mass transit systems.
d. Public parking lots, areas, garages, and other public vehicular parking structures and facilities.
e. Public auditoriums, gymnasiums, stadiums, and convention centers.
f. Recreational facilities.
g. Land, equipment, and facilities for the disposal, treatment, or recycling of solid or other waste that are described in G.S. 159I-8.
h. Facilities for the provision of rehabilitation services, education, training, and employment opportunities for persons with disabilities and the disadvantaged. The term does not include a retail facility, however, unless the proposed operator of the facility certifies that at least seventy-five percent (75%) of its employees will be disadvantaged or disabled persons and at least seventy-five percent (75%) of its inventory will be composed of used, donated items and items manufactured by disadvantaged or disabled persons.
(16) "Water pollution control
facility" shall mean any Water pollution control facility. - Any structure,
equipment or other facility for, including any increment in the cost of any
structure, equipment or facility attributable to, the purpose of treating,
neutralizing or reducing liquid industrial waste and other water pollution,
including collecting, treating, neutralizing, stabilizing, cooling,
segregating, holding, recycling, or disposing of liquid industrial waste and other
water pollution, including necessary collector, interceptor, and outfall lines
and pumping stations, which shall have been certified by the agency
exercising jurisdiction to be in furtherance of the purpose of abating or
controlling water pollution."
Section 4. G.S. 159C-5 is amended by adding a new subdivision to read:
"§ 159C-5. General powers.
Each authority shall have all of the powers necessary or convenient to carry out and effectuate the purposes and provisions of this Chapter, including, but without limiting the generality of the foregoing, the powers:
…
(7a) To acquire by purchase, lease, gift, or otherwise, but not by eminent domain, or to obtain options for the acquisition of, any property, real or personal, improved or unimproved, and interests in land less than the fee interest, for the construction, operation, or maintenance of any project;
… ."
Section 5. G.S. 159C-6 reads as rewritten:
"§ 159C-6. Bonds.
(a) Each authority
is authorized to provide for the issuance, at one time or from time to time, of
bonds of the authority for the purpose of paying all or any part of the cost of
any project. The principal of, the interest on and any premium payable upon the
redemption of such the bonds shall be payable solely from the
funds herein authorized for such authorized in this Article for their
payment. The bonds of each issue shall bear interest as may be determined
by the Local Government Commission of North Carolina with the approval
of the authority and the obligor irrespective of the limitations of G.S.
24-1.1, as amended, and successor provisions. The bonds of each issue shall be
dated, shall mature at such any time or times not exceeding 35
years after the date of their issuance, and may be made redeemable before
maturity at such any price or prices and under such any
terms and conditions, as may be fixed by the authority prior to before
the issuance of the bonds. The authority shall determine the form and the
manner of execution of the bonds, including any interest coupons to be attached
thereto, to them, and shall fix the denomination or denominations
of the bonds and the place or places of payment of principal and interest. In
case any officer whose signature or a facsimile of whose signature appears
on any bonds or coupons ceases to be that officer before the delivery of the
bonds, the signature or the facsimile shall nevertheless be valid and
sufficient for all purposes the same as if the person had remained in office
until such delivery. or a facsimile of whose signature appears on any
bonds or coupons ceases to be that officer before the delivery of the bonds,
the signature or the facsimile shall nevertheless be valid and sufficient for
all purposes the same as if the officer had remained in office until the delivery.
The authority may also provide for the authentication of the bonds by a
trustee or fiscal agent. The bonds may be issued in coupon or in fully
registered form, or both, as the authority may determine, and provision may be
made for the registration of any coupon bonds as to principal alone and also as
to both principal and interest, and for the reconversion into coupon bonds of
any bonds registered as to both principal and interest, and for the interchange
of registered and coupon bonds.
(b) The proceeds
of the bonds of each issue shall be used solely for the payment of the cost of the
project or projects, or a portion thereof, all or part of the project for
which the bonds were issued, and shall be disbursed in such any manner
and under such any restrictions, if any, as the authority
may provide in the financing agreement and the security document. If the
proceeds of the bonds of any issue, by reason of increased construction costs
or error in estimates or otherwise, are less than such this cost,
additional bonds may in like manner be issued to provide the amount of the
deficiency.
(c) The proceeds
of bonds shall not be used to refinance the cost of a an industrial
project or a pollution control project. For the purposes of this section, a
cost of a an industrial project or a pollution control project is
considered refinanced if both of the following conditions are met:
(1) The cost is initially paid from sources other than bond proceeds, and the original expenditure is to be reimbursed from bond proceeds.
(2) The original expenditure was paid more than 60 days before the authority took some action indicating its intent that the expenditure would be financed or reimbursed from bond proceeds.
(d) However, Notwithstanding
subsection (c) of this section, preliminary expenditures that are incurred
prior to the commencement of the acquisition, construction, or rehabilitation
of a an industrial project or a pollution control project, such
as architectural costs, engineering costs, surveying costs, soil testing costs,
bond issuance costs, and other similar costs, may be reimbursed from bond
proceeds even if these costs are incurred or paid more than 60 days prior to
the authority's action. This exception that allows preliminary expenditures to
be reimbursed from bond proceeds, regardless of whether or not they are
incurred or paid within 60 days of the authority's action, does not include
costs that are incurred incident to the commencement of the construction of a
an industrial project or a pollution control project, such as
expenditures for land acquisition and site preparation. In any event, an
expenditure in connection with an industrial project or a pollution control
project originally paid before the authority took some action indicating
its intent that the expenditures would be financed or reimbursed from bond
proceeds may only be reimbursed from bond proceeds only if the
authority finds that reimbursing those costs from bond proceeds will promote
the purposes of this Chapter.
(e) An authority may make loans to an obligor to refund outstanding loans, obligations, deeds of trust, or advances issued, made, or given by the obligor for the cost of a special purpose project.
(f) The
authority may issue interim receipts or temporary bonds, with or without
coupons, exchangeable for definitive bonds when such the bonds
have been executed and are available for delivery. The authority may also
provide for the replacement of any bonds that become mutilated or are destroyed
or lost.
(g) Bonds may be
issued under the provisions of this Chapter without obtaining, except as
otherwise expressly provided in this Chapter, the consent of the State or of
any political subdivision or of any agency of either, and without any other
proceedings or the happening of any conditions or things other than those
proceedings, conditions conditions, or things which that
are specifically required by this Chapter and the provisions of the
financing agreement and security document authorizing the issuance of such
bonds and securing the same. the bonds and securing the bonds."
Section 6. G.S. 159C-7 reads as rewritten:
"§ 159C-7.
Approval of project industrial projects and pollution control
projects by Secretary of Commerce.
(a) Approval Required. -
No bonds may be issued by an authority to finance an industrial project or a
pollution control project unless the project for which their issuance is
proposed is first approved by the Secretary of Commerce. The authority shall
file an application for approval of its proposed industrial project or
pollution control project with the Secretary of Commerce, and shall notify
the Local Government Commission of such the filing.
(b) Findings. - The Secretary shall not approve any proposed industrial project or pollution control project unless the Secretary makes all of the following, applicable findings:
(1) In the case of a proposed industrial project,
a. That the operator of the proposed project pays, or has agreed to pay thereafter, an average weekly manufacturing wage that (i) is above the average weekly manufacturing wage paid in the county, or (ii) is not less than ten percent (10%) above the average weekly manufacturing wage paid in the State, and
b. That the proposed project will not have a materially adverse effect on the environment.
(2) In the case of a
proposed pollution control project, that such the project will
have a materially favorable impact on the environment or will prevent or
diminish materially the impact of pollution which would otherwise occur.
(2a) In the case of a hazardous waste facility or low-level radioactive waste facility that is used as a reduction, recovery or recycling facility, that such project will further the waste management goals of North Carolina and will not have an adverse effect upon public health or a significant adverse effect on the environment.
(3) In any case
(whether the proposed project is the case of an industrial project
or a pollution control project), project, except a pollution
control project for a public utility,
a. That the jobs to be generated or saved, directly or indirectly, by the proposed project will be large enough in number to have a measurable impact on the area immediately surrounding the proposed project and will be commensurate with the size and cost of the proposed project,
b. That the
proposed operator of the proposed project has demonstrated or can demonstrate
the capability to operate such the project, and
c. That the
financing of such the project by the authority will not cause or
result in the abandonment of an existing industrial or manufacturing facility
of the proposed operator or an affiliate elsewhere within the State unless the
facility is to be abandoned because of obsolescence, lack of available labor in
the area, or site limitations.
(b1) Initial Operator. - If
the initial proposed operator of a an industrial project or a
pollution control project is not expected to be the operator for the term
of the bonds proposed to be issued, the Secretary may make the findings
required pursuant to subdivisions (1)a. (b)(1)a. and (3)b. of
this section only with respect to the initial operator. The initial
operator shall be identified in the application for approval of the proposed
project.
(c) Public Hearing. - The Secretary of Commerce shall not approve any proposed industrial project or pollution control project pursuant to this section unless the governing body of the county in which the project is located has first conducted a public hearing and, at or after the public hearing, approved in principle the issuance of bonds under this Chapter for the purpose of paying all or part of the cost of the proposed project. Notice of the public hearing shall be published at least once in at least one newspaper of general circulation in the county not less than 14 days before the public hearing. The notice shall describe generally the bonds proposed to be issued and the proposed project, including its general location, and any other information the governing body considers appropriate or the Secretary of Commerce prescribes for the purpose of providing the Secretary with the views of the community. The notice shall also state that following the public hearing the authority intends to file an application for approval of the proposed project with the Secretary of Commerce.
(d) Certificate of Department of Environment and Natural Resources. - The Secretary of Commerce shall not make the findings required by subdivisions (b) (1)b and (2) of this section unless the Secretary has first received a certification from the Department of Environment and Natural Resources that, in the case of a proposed industrial project, the proposed project will not have a materially adverse effect on the environment and that, in the case of a proposed pollution control project, the proposed project will have a materially favorable impact on the environment or will prevent or diminish materially the impact of pollution which would otherwise occur. The Secretary of Commerce shall not make the findings required by subdivision (2a) unless the Secretary has first received a certification from the Department of Environment and Natural Resources that the proposed project is environmentally sound, will not have an adverse effect on public health and will further the waste management goals of North Carolina. The Secretary of Commerce shall deliver a copy of the application to the Department of Environment and Natural Resources. The Department of Environment and Natural Resources shall provide each certification to the Secretary of Commerce within seven days after the applicant satisfactorily demonstrates to it that all permits, including environmental permits, necessary for the construction of the proposed project have been obtained, unless the authority consents to a longer period of time.
(e) Waiver of Wage
Requirement. - If the Secretary of Commerce has made all of the required
findings respecting a proposed industrial project except that prescribed in subparagraph
subdivision (b) (1)a of this section, the Secretary may, in the
Secretary's discretion, approve the proposed industrial project if the
Secretary has received (i) a resolution of the governing body of the county
requesting that the proposed industrial project be approved
notwithstanding that the operator will not pay an average weekly manufacturing
wage above the average weekly manufacturing wage in the county and (ii) a
letter from an appropriate State official, selected by the Secretary, to the
effect that unemployment in the county is especially severe.
(f) Rules. - To
facilitate review of each proposed industrial project or pollution control project,
the Secretary may require the authority to obtain and submit such any
data and information about such the project as the
Secretary may prescribe. The Secretary may also prescribe such forms and
such rules as the Secretary considers reasonably necessary to
implement the provisions of this section.
(g) Certificate of
Approval. - If the Secretary approves the proposed industrial project or
pollution control project, the Secretary shall prepare a certificate of
approval evidencing such the approval and setting forth the
findings and shall cause the certificate of approval to be published in a
newspaper of general circulation within the county. Any such This approval
shall be reviewable as provided in Article 4 of Chapter 150B of the General
Statutes of North Carolina only by an action filed, within 30 days after
notice of such the findings and approval shall have been
so published, in the Superior Court of Wake County. The superior court is hereby
vested with jurisdiction to hear such the action, but if no such
action is filed within the 30 days herein prescribed, the validity
of such the approval shall be is conclusively
presumed, and no court shall have has authority to inquire into such
the approval. Copies of the certificate of approval of the proposed industrial
project or pollution control project will be given to the authority, the governing
body of the county board of county commissioners, and the Secretary
of the Local Government Commission.
The certificate of approval shall become becomes effective
immediately following the expiration of the 30-day period or the expiration of
any appeal period after a final determination by any court of any action timely
filed pursuant to this section. The certificate shall expire expires one
year after its date unless extended by the Secretary who shall not extend the
certificate unless the Secretary again approves the proposed industrial
project or pollution control project as provided in this section. If bonds
are issued within that year pursuant to the authorization of this Chapter to
pay all or part of the costs of the industrial project or pollution control project,
however, the certificate shall expire expires three years after
the date of the first issuance of the bonds."
Section 7. G.S. 159C-8 reads as rewritten:
"§ 159C-8. Approval of bonds.
(a) No bonds may
be issued by an authority unless the issuance thereof of the bonds is
first approved by the Local Government Commission.
The authority shall file an application for approval of its
proposed bond issue with the Secretary of the Local Government Commission, and
shall notify the Secretary of the Department of Commerce of such
filing. the filing if the project is an industrial project or pollution
control project.
(b) In determining
whether a proposed bond issue should be approved, the Local Government
Commission may consider, without limitation, consider any of the
following:
(1) Whether the proposed operator and obligor have demonstrated or can demonstrate the financial responsibility and capability to fulfill their obligations with respect to the financing agreement. In making such determination, the Commission may consider the operator's experience and the obligor's ratio of current assets to current liabilities, net worth, earnings trends and coverage of fixed charges, the nature of the industry or business involved and its stability and any additional security such as credit enhancement, insurance, guaranties or property to be pledged to secure such bonds.
(2) Whether the political
subdivisions in or near which the proposed project is to be located have the
ability to cope satisfactorily with the impact of such the project
and to provide, or cause to be provided, the public facilities and services,
including utilities, that will be necessary for such the project
and on account of any increase in population which are expected to result therefrom.
from the project.
(3) Whether the proposed date and manner of sale will have an adverse effect upon any scheduled or anticipated sale of obligations by the State or any political subdivision or any agency of either of them.
(4) Any other factors the Commission considers relevant.
(c) The Local Government Commission shall not approve the issuance of bonds for a special purpose project unless the governing body of the county in which the special purpose project is located has conducted a public hearing and, at or after the public hearing, approved in principle the issuance of bonds under this Chapter for the purposes of paying all or a part of the proposed special purpose project. Notice of the public hearing must be published at least once in at least one newspaper of general circulation in the county not less than 14 days before the public hearing. The notice must describe generally the bonds proposed to be issued and the proposed special purpose project, including its general location, and any other information the governing body considers appropriate.
(d) If the initial
proposed operator of the project is not expected to be the operator for the
term of the bonds proposed to be issued, the Local Government Commission may
consider the matters required under subdivision (1) (b)(1) of this
section only with respect to the initial operator. The obligor shall be
obligated to perform all of the duties of the obligor required hereunder during
the term the bonds are outstanding. The Local Government Commission shall
evaluate the obligor's ability to perform these duties without regard to
whether the initial proposed operator of the project is expected to be the operator
for the term of the bonds proposed to be issued. To facilitate the review of
the proposed bond issue by the Commission, the Secretary may require the
authority to obtain and submit such any financial data and
information about the proposed bond issue and the security therefor, for
it, including the proposed prospectus or offering circular, the proposed
financing agreement and security document and annual and other financial
reports and statements of the obligor, as the Secretary may prescribe. The
Secretary may also prescribe such forms and such rules and regulations as he
shall deem any forms and rules the Secretary considers reasonably
necessary to implement the provisions of this section. "
Section 8. G.S. 159C-11 reads as rewritten:
"§ 159C-11. Financing agreements.
(a) Every financing agreement shall provide that:
(1) The amounts payable
under the financing agreement shall be sufficient to pay all of the principal
of and redemption premium, if any, and interest on the bonds that shall be issued
by the authority to pay the cost of the project as the same shall they
respectively become due; due.
(2) The obligor shall pay
all costs incurred by the authority in connection with the financing and
administration of the project, except as may be paid out of the proceeds of
bonds or otherwise, including, but without limitation, including insurance
costs, the cost of administering the financing agreement and the security
document and the fees and expenses of the fiscal agent or trustee, paying
agents, attorneys, consultants and others; others.
(3) The obligor shall pay
all the costs and expenses of operation, maintenance and upkeep of the project;
and project.
(4) The obligor's
obligation to provide for the payment of the bonds in full shall not be is
not subject to cancellation, termination or abatement until such payment
of the bonds or provision for their payment has been therefor shall
be made.
(5) If the proposed
initial operator of the project is not expected to be the operator for the term
of the bonds proposed to be issued, the financing agreement shall require that
the obligor attempt to arrange for a new operator when the current operator
discontinues serving as operator. The new operator is subject to the approval
of the Secretary under subdivisions (b) (1)a. and (3)b. of G.S. 159C-7 and
if the project is an industrial project or a pollution control project,
and is subject in any event to the approval of the Local Government
Commission under G.S. 159C-8.
(b) The financing
agreement, if in the nature of a lease agreement, shall either provide that the
obligor shall have has an option to purchase, or require that the
obligor purchase, the project upon the expiration or termination of the
financing agreement subject to the condition that payment in full of the
principal of, and the interest and any redemption premium on, the bonds, or
provision therefor, shall have for payment, has been made.
The financing agreement may provide the authority with rights
and remedies in the event of a default by the obligor thereunder including,
without limitation, under the agreement, including any one or more
of the following:
(1) Acceleration of all amounts payable under the financing agreement;
(2) Reentry and repossession of the project;
(3) Termination of the financing agreement;
(4) Leasing or sale or foreclosure of the project to others; and
(5) Taking whatever actions at law or in equity may appear necessary or desirable to collect the amounts payable under, and to enforce covenants made in, the financing agreement.
(c) The authority's interest in a project under a financing agreement may be that of owner, lessor, lessee, conditional or installment vendor, mortgagor, mortgagee, secured party or otherwise, but the authority need not have any ownership or possessory interest in the project.
The authority may assign all or any of its rights and remedies under the financing agreement to the trustee or the bondholders under a security document.
Any such The financing agreement may contain such
any additional provisions as in the determination of the
authority are considers necessary or convenient to effectuate the
purposes of this Chapter."
Section 9. G.S. 159C-19 reads as rewritten:
"§ 159C-19. Revenue refunding bonds.
(a) Each authority is hereby
authorized to provide by resolution for the issuance of refunding bonds of
the authority for the purpose of refunding any bonds then outstanding that have
been issued under the provisions of this Chapter, including the payment of any
redemption premium thereon on them and any interest accrued or to
accrue to the date of redemption of such the bonds, and, if
deemed advisable by the authority, for either or both of the following
additional purposes:
(1) Constructing improvements, additions, extensions or enlargements of the project or projects in connection with which the bonds to be refunded have been issued, and
(2) Paying all or any part of the cost of any additional project or projects.
(a1) The issuance of such these
bonds, the their maturities and other details thereof, details,
the rights of the holders thereof, their holders, and the
rights, duties duties, and obligations of the authority in
respect to the same them shall be governed by the provisions of
this Chapter that relate to the issuance of bonds, insofar as such
provisions may be appropriate therefor, to the extent appropriate, including
that any such the bonds may have a single maturity within the
limit prescribed by G.S. 159C-6.
The approvals required by G.S. 159C-7 and 159C-8 shall be
obtained prior to the issuance of any refunding bonds; provided, however,
that in the case where bonds, except that if the refunding bonds of
all or a portion of an issue are to be issued solely for the purpose of
refunding outstanding bonds issued under this Chapter, the approval required by
G.S. 159C-7 shall not be is not required as to the project
financed with the bonds to be refunded.
(b) Refunding bonds
issued under this section may be sold or exchanged for outstanding bonds issued
under this Chapter and, if sold, the proceeds thereof their proceeds may
be applied, in addition to any other authorized purposes, to the purchase, redemption
redemption, or payment of such the outstanding bonds.
Refunding bonds may be issued, in the determination of the authority, at any
time not more than five years prior to before the date of
maturity or maturities or the date selected for the redemption of the bonds
being refunded thereby. by them. Pending the application of the
proceeds of such the refunding bonds, with any other available
funds, to the payment of the principal of and accrued interest and any
redemption premium on the bonds being refunded, and, if so provided or
permitted in the security document securing the same, them, to
the payment of any interest on such the refunding bonds and any
expenses in connection with such the refunding, such the
proceeds may be invested in direct obligations of, or obligations the
principal of and the interest on which are unconditionally guaranteed by, the
United States of America which shall mature or which shall be that
mature or are subject to redemption by the holder thereof, holder,
at the option of such holder, not later than the respective dates when the
proceeds, together with the interest accruing thereon, on them, will
be required for the purposes intended."
Section 10. The amendments to G.S. 159D-55, as recodified by this act, become effective with respect to obligations issued on or after August 1, 2000. The remainder of this act becomes effective July 1, 2000.
In the General Assembly read three times and ratified this the 11th day of July, 2000.
s/ Marc Basnight
President Pro Tempore of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ James B. Hunt, Jr.
Governor
Approved 10:16 a.m. this 2nd day of August, 2000