HomeMy WebLinkAboutHouse Bill 7179FLORIDA HOUSE OF REPRESENTATIVES
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CS/HB 7179, Engrossed 3 2010 Legislature
A bill to be entitled
An act relating to qualifying improvements to real
property; creating s. 163.08, F.S.; providing legislative
purposes and findings and intent; providing definitions;
authorizing a local government to levy non -ad valorem
assessments to fund certain improvements; authorizing a
property owner to apply for funding and enter into a
financing agreement with a local government to finance
certain improvements; authorizing a local government to
collect moneys for such purposes through non -ad valorem
assessments; providing collection requirements;
authorizing local governments to partner with other local
governments to provide and finance certain improvements;
authorizing a qualifying improvement program to be
administered by a for -profit entity or not -for -profit
organization under certain circumstances; authorizing a
local government to incur debt payable from revenues
received from the improved property; providing a financing
restriction for local governments; requiring a financial
agreement to be recorded in a county's public records
within 5 days after execution of the agreement; specifying
responsibilities for local governments before entering
into financing agreements; requiring qualifying
improvements to be affixed to a building or facility on
the property and be performed by a properly certified or
registered contractor; excluding certain projects from
financing agreement coverage; limiting the amount of the
non -ad valorem assessment to a percentage of the just
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value of the property; providing exceptions; specifying
information provision requirements for property owners
before entering into financing agreements; prohibiting
acceleration of a mortgage under certain circumstances;
providing assessment disclosure requirements; specifying
unenforceability of certain agreement provisions;
providing construction preserving a local government's
home rule authority; amending ss. 288.9602 and 288.9603,
F.S.; revising legislative findings and declarations and
definitions for purposes of the Florida Development
Finance Corporation Act; amending s. 288.9604, F.S.;
revising requirements for the establishment and
organization of the Florida Development Finance
Corporation; amending s. 288.9605, F.S.; revising the
powers of the corporation; amending s. 288.9606, F.S.;
revising requirements for the corporation's issuance of
revenue bonds; amending s. 288.9607, F.S.; limiting the
corporation's approval of guaranties for debt service for
bonds or other indebtedness for any one capital project;
deleting provisions for the corporation's investment of
certain funds in the State Transportation Trust Fund;
authorizing guarantees to be used in conjunction with
federal guaranty programs; amending s. 288.9608, F.S.;
creating the Energy, Technology, and Economic Development
Guaranty Fund; providing for the deposit and use of
certain moneys in the fund; deleting requirements for the
corporation's debt service reserve account and Revenue
Bond Guaranty Reserve Account; amending ss. 288.9609,
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288.9610, 206.46, 215.47, 339.08, and 339.135, F.S.;
conforming provisions to changes made by the act;
providing legislative findings; requiring the Department
of Community Affairs and the Office of Tourism, Trade, and
Economic Development, in consultation with the Florida
Energy and Climate Commission, to submit recommendations
to the Governor and Legislature relating to the Energy
Economic Zone Pilot Program; requiring coordination with
the pilot communities and clean technology industries in
identifying certain incentives and strategies; amending s.
366.91, F.S.; revising the definition of the term
"renewable energy"; providing an effective date.
Be It Enacted by the Legislature of the State of Florida:
Section 1. Section 163.08, Florida Statutes, is created to
read:
163.08 Supplemental authority for improvements to real
property.—
(1)(a) In chapter 2008-227, Laws of Florida, the
Legislature amended the energy goal of the state comprehensive
plan to provide, in part, that the state shall reduce its energy
requirements through enhanced conservation and efficiency
measures in all end -use sectors and reduce atmospheric carbon
dioxide by promoting an increased use of renewable energy
resources. That act also declared it the public policy of the
state to play a leading role in developing and instituting
energy management programs that promote energy conservation,
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energy security, and the reduction of greenhouse gases. In
addition to establishing policies to promote the use of
renewable energy, the Legislature provided for a schedule of
increases in energy performance of buildings subject to the
Florida Energy Efficiency Code for Building Construction. In
chapter 2008-191, Laws of Florida, the Legislature adopted new
energy conservation and greenhouse gas reduction comprehensive
planning requirements for local governments. In the 2008 general
election, the voters of this state approved a constitutional
amendment authorizing the Legislature, by general law, to
prohibit consideration of any change or improvement made for the
purpose of improving a property's resistance to wind damage or
the installation of a renewable energy source device in the
determination of the assessed value of residential real
property.
(b) The Legislature finds that all energy -consuming -
improved properties that are not using energy conservation
strategies contribute to the burden affecting all improved
property resulting from fossil fuel energy production. Improved
property that has been retrofitted with energy -related
qualifying improvements receives the special benefit of
alleviating the property's burden from energy consumption. All
improved properties not protected from wind damage by wind
resistance qualifying improvements contribute to the burden
affecting all improved property resulting from potential wind
damage. Improved property that has been retrofitted with wind
resistance qualifying improvements receives the special benefit
of reducing the property's burden from potential wind damage.
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Further, the installation and operation of qualifying
improvements not only benefit the affected properties for which
the improvements are made, but also assist in fulfilling the
goals of the state's energy and hurricane mitigation policies.
In order to make qualifying improvements more affordable and
assist property owners who wish to undertake such improvements,
the Legislature finds that there is a compelling state interest
in enabling property owners to voluntarily finance such
improvements with local government assistance.
(c) The Legislature determines that the actions authorized
under this section, including, but not limited to, the financing
of qualifying improvements through the execution of financing
agreements and the related imposition of voluntary assessments
are reasonable and necessary to serve and achieve a compelling
state interest and are necessary for the prosperity and welfare
of the state and its property owners and inhabitants.
(2) As used in this section, the term:
(a) "Local government" means a county, a municipality, or
a dependent special district as defined in s. 189.403.
(b) "Qualifying improvement" includes any:
1. Energy conservation and efficiency improvement, which
is a measure to reduce consumption through conservation or a
more efficient use of electricity, natural gas, propane, or
other forms of energy on the property, including, but not
limited to, air sealing; installation of insulation;
installation of energy -efficient heating, cooling, or
ventilation systems; building modifications to increase the use
of daylight; replacement of windows; installation of energy
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controls or energy recovery systems; installation of electric
vehicle charging equipment; and installation of efficient
lighting equipment.
2. Renewable energy improvement, which is the installation
of any system in which the electrical, mechanical, or thermal
energy is produced from a method that uses one or more of the
following fuels or energy sources: hydrogen, solar energy,
geothermal energy, bioenergy, and wind energy.
3. Wind resistance improvement, which includes, but is not
limited to:
a. Improving the strength of the roof deck attachment;
b. Creating a secondary water barrier to prevent water
intrusion;
c. Installing wind -resistant shingles;
d. Installing gable -end bracing;
e. Reinforcing roof -to -wall connections;
f. Installing storm shutters; or
g. Installing opening protections.
(3) A local government may levy non -ad valorem assessments
to fund qualifying improvements.
(4) Subject to local government ordinance or resolution, a
property owner may apply to the local government for funding to
finance a qualifying improvement and enter into a financing
agreement with the local government. Costs incurred by the local
government for such purpose may be collected as a non -ad valorem
assessment. A non -ad valorem assessment shall be collected
pursuant to s. 197.3632 and, notwithstanding s. 197.3632(8)(a),
shall not be subject to discount for early payment. However, the
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notice and adoption requirements of s. 197.3632(4) do not apply
if this section is used and complied with, and the intent
resolution, publication of notice, and mailed notices to the
property appraiser, tax collector, and Department of Revenue
required by s. 197.3632(3)(a) may be provided on or before
August 15 in conjunction with any non -ad valorem assessment
authorized by this section, if the property appraiser, tax
collector, and local government agree.
(5) Pursuant to this section or as otherwise provided by
law or pursuant to a local government's home rule power, a local
government may enter into a partnership with one or more local
governments for the purpose of providing and financing
qualifying improvements.
(6) A qualifying improvement program may be administered
by a for -profit entity or a not -for -profit organization on
behalf of and at the discretion of the local government.
(7) A local government may incur debt for the purpose of
providing such improvements, payable from revenues received from
the improved property, or any other available revenue source
authorized by law.
(8) A local government may enter into a financing
agreement only with the record owner of the affected property.
Any financing agreement entered into pursuant to this section or
a summary memorandum of such agreement shall be recorded in the
public records of the county within which the property is
located by the sponsoring unit of local government within 5 days
after execution of the agreement. The recorded agreement shall
provide constructive notice that the assessment to be levied on
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the property constitutes a lien of equal dignity to county taxes
and assessments from the date of recordation.
(9) Before entering into a financing agreement, the local
government shall reasonably determine that all property taxes
and any other assessments levied on the same bill as property
taxes are paid and have not been delinquent for the preceding 3
years or the property owner's period of ownership, whichever is
less; that there are no involuntary liens, including, but not
limited to, construction liens on the property; that no notices
of default or other evidence of property -based debt delinquency
have been recorded during the preceding 3 years or the property
owner's period of ownership, whichever is less; and that the
property owner is current on all mortgage debt on the property.
(10) A qualifying improvement shall be affixed to a
building or facility that is part of the property and shall
constitute an improvement to the building or facility or a
fixture attached to the building or facility. An agreement
between a local government and a qualifying property owner may
not cover wind -resistance improvements in buildings or
facilities under new construction or construction for which a
certificate of occupancy or similar evidence of substantial
completion of new construction or improvement has not been
issued.
(11) Any work requiring a license under any applicable law
to make a qualifying improvement shall be performed by a
contractor properly certified or registered pursuant to part I
or part II of chapter 489.
(12)(a) Without the consent of the holders or loan
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servicers of any mortgage encumbering or otherwise secured by
the property, the total amount of any non -ad valorem assessment
for a property under this section may not exceed 20 percent of
the just value of the property as determined by the county
property appraiser.
(b) Notwithstanding paragraph (a), a non -ad valorem
assessment for a qualifying improvement defined in subparagraph
(2)(b)1. or subparagraph (2)(b)2. that is supported by an energy
audit is not subject to the limits in this subsection if the
audit demonstrates that the annual energy savings from the
qualified improvement equals or exceeds the annual repayment
amount of the non -ad valorem assessment.
(13) At least 30 days before entering into a financing
agreement, the property owner shall provide to the holders or
loan servicers of any existing mortgages encumbering or
otherwise secured by the property a notice of the owner's intent
to enter into a financing agreement together with the maximum
principal amount to be financed and the maximum annual
assessment necessary to repay that amount. A verified copy or
other proof of such notice shall be provided to the local
government. A provision in any agreement between a mortgagee or
other lienholder and a property owner, or otherwise now or
hereafter binding upon a property owner, which allows for
acceleration of payment of the mortgage, note, or lien or other
unilateral modification solely as a result of entering into a
financing agreement as provided for in this section is not
enforceable. This subsection does not limit the authority of the
holder or loan servicer to increase the required monthly escrow
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by an amount necessary to annually pay the qualifying
improvement assessment.
(14) At or before the time a purchaser executes a contract
for the sale and purchase of any property for which a non -ad
valorem assessment has been levied under this section and has an
unpaid balance due, the seller shall give the prospective
purchaser a written disclosure statement in the following form,
which shall be set forth in the contract or in a separate
writing:
QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY,
RENEWABLE ENERGY, OR WIND RESISTANCE. —The property
being purchased is located within the jurisdiction of
a local government that has placed an assessment on
the property pursuant to s. 163.08, Florida Statutes.
The assessment is for a qualifying improvement to the
property relating to energy efficiency, renewable
energy, or wind resistance, and is not based on the
value of property. You are encouraged to contact the
county property appraiser's office to learn more about
this and other assessments that may be provided by
law.
(15) A provision in any agreement between a local
government and a public or private power or energy provider or
other utility provider is not enforceable to limit or prohibit
any local government from exercising its authority under this
section.
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(16) This section is additional and supplemental to county
and municipal home rule authority and not in derogation of such
authority or a limitation upon such authority.
Section 2. Section 288.9602, Florida Statutes, is amended
to read:
288.9602 Findings and declarations of necessity. —The
Legislature finds and declares that:
(1) There is a need to enhance economic activity in the
citicc and counticc of thc state by attracting manufacturing,
development, redevelopment of brownfield areas, business
enterprise management, and other activities conducive to
economic promotion in order to provide a stronger, more
balanced, and stable economy in the citico and counticc of tho
state.
(2) A significant portion of businesses located in the
citics and countics of thc state or desiring to locate in the
citics and countics of thc state encounter difficulty in
obtaining financing on terms competitive with those available to
businesses located in other states and nations or are unable to
obtain such financing at all.
(3) The difficulty in obtaining such financing impairs the
expansion of economic activity and the creation of jobs and
income in communities throughout the state.
(4) The businesses most often affected by these financing
difficulties are small businesses critical to the economic
development of the state cities and c unties of Florida.
(5) The economic well-being of the people in, and the
commercial and industrial resources of, thc citics and countic3
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e the state would be enhanced by the provision of financing to
businesses on terms competitive with those available in the most
developed financial markets worldwide.
(6) In order to improve the prosperity and welfare of ire
citics and countics of this state and its inhabitants, to
improve and promote the financing of projects related to the
economic development of thc cities and countics of this state,
including redevelopment of brownfield areas, and to increase the
purchasing power and opportunities for gainful employment of
citizens of thc citics and countics of this state, it is
necessary and in the public interest to facilitate the financing
of such projects as provided for in this act and to do so
without regard to the boundaries between counties,
municipalities, special districts, and other local governmental
bodies or agencies in order to more effectively and efficiently
serve the interests of the greatest number of people in the
widest area practicable.
(7) In order to promote and stimulate development and
advance the business prosperity and economic welfare of 4he
cities and countics of this state and its inhabitants; to
encourage and assist new business and industry in this state
through loans, investments, or other business transactions; to
rehabilitate and assist existing businesses; to stimulate and
assist in the expansion of all kinds of for -profit and not -for -
profit business activity; and to create maximum opportunities
for employment, encouragement of thrift, and improvement of the
standard of living of the citizens of Florida, it is necessary
and in the public interest to facilitate the cooperation and
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action between organizations, public and private, in the
promotion, development, and conduct of all kinds of for -profit
and not -for -profit business activity in the state.
(8) In order to efficiently and effectively achieve the
purposes of this act, it is necessary and in the public interest
to create a special development finance authority to cooperate
and act in conjunction with public agencies of this state and
local governments of this state, through interlocal agreements
pursuant to the Florida Interlocal Cooperation Act of 1969, in
the promotion and advancement of projects related to economic
development, including redevelopment of brownfield areas,
throughout the state.
(9) The purposes to be achieved by the special development
finance authority through such projects and such financings of
business and industry in compliance with the criteria and the-
requirements of this act are predominantly the public purposes
stated in this section, and such purposes implement the
governmental purposes under the State Constitution of providing
for the health, safety, and welfare of the people of the state, —
including implementing the purpose of a. 10(c), Art. VII of thc
State C natituti n and aimultane usly pr vide new and inn vativc
means for thc investment of public trust funds in accordance
with a. 10(a), Art. VII of thc State Constitution.
Section 3. Subsections (6), (11), and (12) of section
288.9603, Florida Statutes, are amended to read:
288.9603 Definitions.—
(6) "Debt service" shall mean for any bonds issued by the
corporation or for any bonds or other form of indebtedness -ate
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for which a guaranty has been issued pursuant to ss. 288.9606,
288.9607, and 288.9608, for any period for which such
determination is to be made, the aggregate amount of all
interest charges due or which shall become due on or with
respect to such bonds or indebtedness during the period for
which such determination is being made, plus the aggregate
amount of scheduled principal payments due or which shall become
due on or with respect to such bonds or indebtedness during the
period for which such determination is being made. Scheduled
principal payments may include only principal payments that are
scheduled as part of the terms of the original bond or
indebtedness issue and that result in the reduction of the
outstanding principal balance of the bonds or indebtedness.
(11) "Guaranty agreement" means an agreement by and between
the corporation and an applicant a public agcncy pursuant to the
provisions of s. 288.9607.
(12) "Guaranty agreement fund" means the Energy,
Technology, and Economic Development Rcvcnuc Bond Guaranty Fund
Te crvc Arco established by the corporation pursuant to s.
288.9608.
Section 4. Section 288.9604, Florida Statutes, is amended
to read:
288.9604 Creation of the authority.—
(1) Upon a finding of nccessity by a city or county of this
statc, sciccted pursuant to subscction (2), There is created a
public body corporate and politic known as the "Florida
Development Finance Corporation." The corporation shall be
constituted as a public instrumentality of local govcrnmcnt, and
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the exercise by the corporation of the powers conferred by this
act shall be deemed and held to be the performance of an
essential public function. The corporation has the power to
function within the corporate limits of any public agency with
which it has entered into an interlocal agreement for any of the
purposes of this act.
(2) A city or county of Florida shall bc selected by a
search committcc of Enterprise Florida, Inc. This city or county
shall bc authorized to activate thc corporation. The search
committee shall bc compo„cd of two commercial banking
representatives, thc Senate mcmbcr of thc partnership, thc II uac
of Representatives mcmbcr of thc partnership, and a mcmbcr who
is an industry or cconomic development professional.
(2)(3) Upon activation of thc corporation, The Governor,
subject to confirmation by the Senate, shall appoint the board
of directors of the corporation, who shall be five in number.
The terms of office for the directors shall be for 4 years from
the date of their appointment. A vacancy occurring during a term
shall be filled for the unexpired term. A director shall be
eligible for reappointment. At least three of the directors of
the corporation shall be bankers who have been selected by the
Governor from a list of bankers who were nominated by Enterprise
Florida, Inc., and one of the directors shall be an economic
development specialist. The chairperson of the Florida Black
Business Investment Board shall be an ex officio member of the
board of the corporation.
(3)+4*(a) A director shall receive no compensation for his
or her services, but is entitled to the necessary expenses,
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including travel expenses, incurred in the discharge of his or
her duties. Each director shall hold office until his or her
successor has been appointed.
(b) The powers of the corporation shall be exercised by the
directors thereof. A majority of the directors constitutes a
quorum for the purposes of conducting business and exercising
the powers of the corporation and for all other purposes. Action
may be taken by the corporation upon a vote of a majority of the
directors present, unless in any case the bylaws require a
larger number. Any person may be appointed as director if he or
she resides, or is engaged in business, which means owning a
business, practicing a profession, or performing a service for
compensation or serving as an officer or director of a
corporation or other business entity so engaged, within the
state.
(c) The directors of the corporation shall annually elect
one of their members as chair and one as vice chair. The
corporation may employ a president, technical experts, and such
other agents and employees, permanent and temporary, as it
requires and determine their qualifications, duties, and
compensation. For such legal services as it requires, the
corporation may employ or retain its own counsel and legal
staff. The corporation shall file with the governing body of
each public agency with which it has entered into an interlocal
agreement and with the Governor, the Speaker of the House of
Representatives, the President of the Senate, the Minority
Leaders of the Senate and House of Representatives, and the
Auditor General, on or before 90 days after the close of the
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fiscal year of the corporation, a report of its activities for
the preceding fiscal year, which report shall include a complete
financial statement setting forth its assets, liabilities,
income, and operating expenses as of the end of such fiscal
year.
(4)(5) The board may remove a director for inefficiency,
neglect of duty, or misconduct in office only after a hearing
and only if he or she has been given a copy of the charges at
least 10 days before prior to such hearing and has had an
opportunity to be heard in person or by counsel. The removal of
a director shall create a vacancy on the board which shall be
filled pursuant to subsection (4) (3).
Section 5. Section 288.9605, Florida Statutes, is amended
to read:
288.9605 Corporation powers.—
(1) The powers of the corporation created by s. 288.9604
shall include all the powers necessary or convenient to carry
out and effectuate the purposes and provisions of this act.
(2) The corporation is authorized and empowered to:
(a) Have perpetual succession as a body politic and
corporate and adopt bylaws for the regulation of its affairs and
the conduct of its business.
(b) Adopt an official seal and alter the same at its
pleasure.
(c) Maintain an office at such place or places as it may
designate.
(d) Sue and be sued in its own name and plead and be
impleaded.
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(e) Enter into interlocal agreements pursuant to s.
163.01(7) with public agencies of this state for the exercise of
any power, privilege, or authority consistent with the purposes
of this act.
(f) Issue, from time to time, revenue bonds, notes, or
other evidence of indebtedness, including, but not limited to,
taxable bonds and bonds the interest on which is exempt from
federal income taxation, for the purpose of financing and
refinancing any capital projects that promote economic
development within the state, thereby benefitting the citizens
of the state, for applicants and exercise all powers in
connection with the authorization, issuance, and sale of bonds,
subject to the provisions of s. 288.9606.
(g) Issue bond anticipation notes in connection with the
authorization, issuance, and sale of such bonds, pursuant to the
provisions of s. 288.9606.
(h) Make and execute contracts and other instruments
necessary or convenient to the exercise of its powers under the
act.
(i) Disseminate information about itself and its
activities.
(j) Acquire, by purchase, lease, option, gift, grant,
bequest, devise, or otherwise, real property, together with any
improvements thereon, or personal property for its
administrative purposes or in furtherance of the purposes of
this act, togcthcr with any improvcmcntc thcrcon.
(k) Hold, improve, clear, or prepare for development any
such property.
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(1) Mortgage, pledge, hypothecate, or otherwise encumber or
dispose of any real or personal property.
(m) Insure or provide for insurance of any real or personal
property or operations of the corporation or any private
enterprise against any risks or hazards, including the power to
pay premiums on any such insurance.
(n) Establish and fund a guaranty fund in furtherance of
the purposes of this act.
(o) Invest funds held in reserve or sinking funds or any
such funds not required for immediate disbursement in property
or securities in such manner as the board shall determine,
subject to the authorizing resolution on any bonds issued, and
to terms established in the investment agreement pursuant to ss.
288.9606, 288.9607, and 288.9608, and redeem such bonds as have
been issued pursuant to s. 288.9606 at the redemption price
established therein or purchase such bonds at less than
redemption price, all such bonds so redeemed or purchased to be
canceled.
(p) Borrow money and apply for and accept advances, loans,
grants, contributions, and any other form of financial
assistance from the Federal Government or the state, county, or
other public agency belly or from any sources, public or private,
for the purposes of this act and give such security as may be
required and enter into and carry out contracts or agreements in
connection therewith; and include in any contract for financial
assistance with the Federal Government or the state, county, or
other public agency for, or with respect to, any purposes under
this act and related activities such conditions imposed pursuant
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to federal laws as the county or municipality or other public
agency deems reasonable and appropriate which are not
inconsistent with the provisions of this act.
(q) Make or have all surveys and plans necessary for the
carrying out of the purposes of this act, contract with any
person, public or private, in making and carrying out such
plans, and adopt, approve, modify, and amend such plans.
(r) Develop, test, and report methods and techniques and
carry out demonstrations and other activities for the promotion
of any of the purposes of this act.
(s) Apply for, accept, and utilize grants from the Federal
Government or the state, county, or other public agency
available for any of the purposes of this act.
(t) Make expenditures necessary to carry out the purposes
of this act.
(u) Exercise all or any part or combination of powers
granted in this act.
(v) Enter into investment agreements with the Florida Black
Business Investment Board concerning the issuance of bonds and
other forms of indebtedness and capital for the purposes of ss.
288.707-288.714.
(w) Determine the situations and circumstances for
participation in partnerships by agreement with local
governments, financial institutions, and others associated with
the redevelopment of brownfield areas pursuant to the
Brownfields Redevelopment Act for a limited state guaranty of
revenue bonds, loan guarantees, or loan loss reserves.
Section 6. Subsections (3) and (5) of section 288.9606,
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Florida Statutes, are amended, and subsection (7) is added to
that section, to read:
288.9606 Issue of revenue bonds.—
(3) Bonds issued under this section shall be authorized by
a public agency of this state pursuant to the terms of an
interlocal agreement, unless such bonds are issued pursuant to
subsection (7); may be issued in one or more series; and shall
bear such date or dates, be payable upon demand or mature at
such time or times, bear interest rate or rates, be in such
denomination or denominations, be in such form either with or
without coupon or registered, carry such conversion or
registration privileges, have such rank or priority, be executed
in such manner, be payable in such medium of payments at such
place or places, be subject to such terms of redemption, with or
without premium, be secured in such manner, and have such other
characteristics as may be provided by the corporation intcrlocal
agrccmcnt issucd pursuant thcrct . Bonds issued under this
section may be sold in such manner, either at public or private
sale, and for such price as the corporation may determine will
effectuate the purpose of this act.
(5) In any suit, action, or proceeding involving the
validity or enforceability of any bond issued under this act, or
the security therefor, any such bond reciting in substance that
it has been issued by the corporation in connection with any
purpose of the act shall be conclusively deemed to have been
issued for such purpose, and such purpose shall be conclusively
deemed to have been carried out in accordance with the act. The
complaint in any action to validate such bonds shall be filed
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only in the Circuit Court for Leon County. The notice required
to be published by s. 75.06 shall be published only in Leon
County, and the complaint and order of the circuit court shall
be served only on the State Attorney of the Second Judicial
Circuit and on the state attorney of each circuit in each county
where the public agencies which were initially a party to the
interlocal agreement are located. Notice of such proceedings
shall be published in the manner and the time required by s.
75.06, in Leon County and in each county where the public
agencies which were initially a party to the interlocal
agreement are located. Obligations of the corporation pursuant
to a loan agreement as described in this subsection may be
validated as provided in chapter 75. The validation of at least
the first bonds approved by the corporation shall be appealed to
the Florida Supreme Court. The complaint in thc validation
procccding shall specifically address the constitutionality of
using the investment of thc earnings accrued and collcctcd upon
thc investment f thc minimum balance funds required t be
maintained in the State Transportation Trust Eund to guarantee
such bonds. If such proceeding results in an adverse ruling and
such bonds and guaranty arc found to be unconstitutional,
invalid, or unenforceable, then thc corporation shall no longer
b-o au zed to use thc investment of thc earnings accrucd and
collcctcd upon the investment of thc minimum balance of thc
Ctatc Transportation Trust Eund to guarantee any bonds.
(7) Notwithstanding any provision of this section, the
corporation in its corporate capacity may, without authorization
from a public agency under s. 163.01(7), issue revenue bonds or
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other evidence of indebtedness under this section to:
(a) Finance the undertaking of any project within the state
that promotes renewable energy as defined in s. 377.803 or s.
366.91;
(b) Finance the undertaking of any project within the state
that is a project contemplated or allowed under s. 406 of the
American Recovery and Reinvestment Act of 2009; or
(c) If permitted by federal law, finance qualifying
improvement projects within the state under s. 163.08.
Section 7. Section 288.9607, Florida Statutes, is amended
to read:
288.9607 Guaranty of bond issues.—
(1) The corporation may is hereby authorizcd to approve or
deny, by a majority vote of the membership of the directors, a
guaranty of debt service payments for bonds or other
indebtedness used to finance any capital project that promotes
economic development in the state, including, but not limited
to, those capital projects for which revenue bonds are
guaranty of any revenue bonds issued under pursuant to this act,
if any such guaranty does not exceed 5 percent of the total
aggregate principal amount of bonds or other indebtedness
relating to any one capital project. The corporation may also
use moneys deposited into the Energy, Technology, and Economic
Development Guaranty Fund to satisfy requirements to obtain
federal loan guarantees for capital projects authorized pursuant
to this section. The guaranty may also be f thc obligations of
thc corporation with respect to any letter of crcdit, bond
insurance, or other form of crcdit cnhanccmcnt providcd by any
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person with respcct to any rcvcnuc b nds issucd by thc
corporation pursuant to this act.
(2) Any applicant f r financing fr m thc c rp rati n,
requesting a guaranty of thc bonds issucd by the corporation
under this act must submit a guaranty application, in a form
acceptable to the corporation, together with supporting
documentation to the corporation as provided in this section.
(3) All applicants which have entered into a guaranty
agreement with the corporation shall pay a guaranty premium on
such terms and at such rates as the corporation shall determine
before prior t the issuance of the guaranty bonds. The
corporation may adopt such guaranty premium structures as it
deems appropriate, including, without limitation, guaranty
premiums which are payable one time upon the issuance of the
guaranty bonds or annual premiums payable upon the outstanding
principal balance of bonds or other indebtedness that is
guaranteed from time to time. The premium payment may be
collected by the corporation from any lessee of the project
involved, from the applicant, or from any other payee of any e
loan agreement involved.
(4) All applications for a guaranty must acknowledge that
as a condition to the issuance of the guaranty, the corporation
may require that the financing must be secured by a mortgage or
security interest on the property acquired which will have such
priority over other liens on such property as may be required by
the corporation, and that the financing must be guaranteed by
such person or persons with such ownership interest in the
applicant as may be required by the corporation.
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(5) Personal financial records, trade secrets, or
proprietary information of applicants delivered to or obtained
by the corporation shall be confidential and exempt from the
provisions of s. 119.07(1).
(6) If the application for a guaranty is approved by the
corporation, the corporation and the applicant shall enter into
a guaranty agreement. In accordance with the provisions of the
guaranty agreement, the corporation guarantees to use the funds
on deposit in its Energy, Technology, and Economic Development
Guaranty Fund Rcvcnuc Bond Cuaranty Rcscrvc Account to meet debt
service amortization payments on the bonds or indebtedness as
they become due, in the event and to the extent that the
applicant is unable to meet such payments in accordance with thc
tcrmo of thc bond indcnturc when callcd to do so by the truotcc
of thc bondholdcro, or to make similar payments to reimburse any
person which has provided credit enhancement for the bonds and
which has advanced funds to meet such debt service amortization
payments as they become due, if such guaranty of the corporation
is limited to 5 percent of the total aggregate principal amount
of bonds or other indebtedness relating to any one capital
project. The corporation may also use moneys deposited in the
Energy, Technology, and Economic Development Guaranty Fund to
satisfy requirements to obtain federal loan guarantees for
capital projects authorized under this section. If the applicant
defaults on debt service bond amortization payments, the
corporation may use funds on deposit in the Energy, Technology,
and Economic Development Guaranty Fund Rcvcnuc Bond Cuaranty
Rcscrvc Account to pay insurance, maintenance, and other costs
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which may be required for the preservation of any capital
project or other collateral security for any bond or
indebtedness issued to finance a capital project for which debt
service payments are guaranteed by the corporation issued by the
corporation, or to othcrwisc protect the reserve acc unt from
lo,,, or to minimize losses to thc rc,crvc account, in each case
in such manner as may be deemed necessary and advisable by the
corporation.
(7)(a) Thc corporation is authorizcd to cntcr into an
invcotmcnt agrccmcnt with thc Department of Tran,portation and
the Statc Board of Administratioi concerning thc invcstmcnt of
thc earnings accrucd and c llcctcd up n thc invcstmcnt f thc
minimum balancc of funds required to bc maintained in thc Statc
Tranop rtation Trust Fund pursuant to o. 339.135(6)(b). Such
invcotmcnt shall be limited as f slows:
1. N t more than $1 million of the investmcnt carningo
ed—ems the i � -rare rt o thc minimum balancc of thc Statc
Transportation Trust Fund in a fiscal ycar shall be at risk at
any time n nc r m rc b nds r scrico f b nds iooucd by thc
2. Thc invcstmcnt carnings shall not be uscd to guarantcc
any bonds issued aftcr Junc 30, 1998, and in no event shall thc
invcstmcnt earnings be uscd to guarantcc any bond iosucd for a
maturity longcr than 15 years.
3. Thc corporation shall pay a rcasonable fcc, set by thc
State Board of Administration, in return f r thc investment f
such funds. Thc fcc shall not bc less than thc comparable rate
for similar invcstmcnto in terms of size and risk.
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4. Thc proceeds of bonds, or portions thereof, issued by
thc corporation for which a gu-ararty has been r will bc issued
pursuant to s. 288.9606, o. 288.9608, or this section used t
make loans to any one person, includiHg any related interests,
as dcfincd in s. 658.18, of such person, shall not cxcccd 20
perccnt of thc principal of all such outstanding bonds of thc
corporation issued prior to thc first composite bond issue of
the corporation, or Dcccmbcr 31, 1995, whichever comes first,
and shall n t cxcccd 15 perccnt f thc principal f all such
utstanding bonds of thc corporation issued thereafter, in each
case dctcrmincd as f the date f issuance f thc b nds f r
which such dcterminati n is being mudc and taking int acc unt
thc principal amount of such bonds to bc iaaucd. Thc provisions
of this subparagraph shall not apply whcn thc total am unt of
all such outstanding bonds iaaucd by thc corporation is less
$'vier —For thc purpose of calculating thc limits
imposed by thc provisions of this subparagraph, thc first $10
million of bonds iooucd by thc corporation shall be taken into
account.
5. Thc corporation shall establish a dcbt service rcocrvc
account which contains not lcoo than 6 months' dcbt service
rcocrvcs from thc procccdo of thc sale of any bonds, or portions
there f, guaranteed by thc corporation.
6. Thc corporation shall cotablioh an acc unt known as thc
cacrvc Acc unt, thc Cuaranty Fund. Thc
corporation shall dcpoait a sum of moncy or othcr cash
cquivalcnta into this fund and maintain a balance of moncy or
cash cquivalcnta in this fund, from oourcco other than thc
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invcstmcnt f arnings accrucd and c llcctcd up n thc invcstmcnt
of thc minimum balancc of funds rcquircd to bc maintained in thc
State Transp rtati n Trust Lund, n t lcs„ than a sum equal t 1
y r of maximum debt scrvicc on all outstanding bonds, r
portions thcrcof, of thc corporation for which a guaranty has
bccn issued pursuant to sa. 288.9606, 288.9607, and 288.9608. In
thc event thc corporation fail, to maintain thc balancc rcquircd
pursuant to this subparagraph for any reason othcr than a
dcfault on a bond is,uc of thc corporation guaranteed pursuant
t this sccti n r because f thc u„c by thc c rp rati n f any
such funds to pay insurance, maintenance, or othcr costs which
may bc rcquircd for thc prc„crvation of any projcct or othcr
collatcral security for any bond issucd by thc corporation, or
to r icic pretc rcRc . Bon C r-anty—Roo ry r. n
from loss while thc applicant is in dcfault on amortizati n
paymcnts, or to minimizc losses to thc reserve account in each
casc in such manncr as may bc deemed nccessary r advisable by
thc c rp rati n, thc c rp rati n shall immediately n tify thc
Dcpartmcnt of Transportation of Such dcficicncy. Any
supplcmcntal funding authorized by an invcstmcnt agrccmcnt
cntcrcd into with thc Department of Transportation and thc Statc
Board of Administration conccrning thc uac of invcstmcnt
earnings of thc minimum balancc of funds is void unless such
dcficicncy of funds is curcd by thc corporation within 90 days
aftcr the corporation has notificd thc Dcpartmcnt of
Transp rtation f such dcficicncy.
(b) Unless spccifically pr hibitcd in thc Ccncral
Appropriations Act, thc earnings accrucd and collected upon thc
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investment f the minimum balance f fund, required t bc
maintained in thc State Tr,n,p rtati n Trust Fund may c ntinuc
to bc used pursuant to paragraph (a).
-(e-)- The guaranty is shall not be a general obligation of
the corporation or of the state, but is shall bc a special
obligation, which constitutes the investment of a public trust
fund. In no event shall the guaranty constitute an indebtedness
of the corporation, the state of Florida, or any political
subdivision thereof within the meaning of any constitutional or
statutory limitation. Each guaranty agreement shall have plainly
stated on the face thereof that it has been entered into under
the provisions of this act and that it does not constitute an
indebtedness of the corporation, the state, or any political
subdivision thereof within any constitutional or statutory
limitation, and that neither the full faith and credit of the
state of Florida nor any of its revenues is pledged to meet any
of the obligations of the corporation under such guaranty
agreement. Each such agreement shall state that the obligation
of the corporation under the guaranty shall be limited to the
funds available in the Energy, Technology, and Economic
Development Guaranty Fund Revenue Bond C aranty Reserve Account
as authorized by this section.
The c rp rati n shall include, as part f thc annual rcp rt
prepared pursuant to s. 288.9610, a detailed rcport conccrning
thc use f guaranteed b nd pr cccds f r 1 ans guaranteed r
issued pursuant to any agreement with thc Florida Black Business
Investment B ard, including thc percentage f such 1 ans
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ENROLLED
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guarantccd or issued and thc total volume of such loans
guaranteed or issued.
(8) In the event the corporation does not approve the
application for a guaranty, the applicant shall be notified in
writing of the corporation's determination that the application
not be approved.
(9) The membership of the corporation is authorized and
directed to conduct such investigation as it may deem necessary
for promulgation of regulations to govern the operation of the
guaranty program authorized by this section. The regulations may
include such other additional provisions, restrictions, and
conditions as the corporation, after its investigation referred
to in this subsection, shall determine to be proper to achieve
the most effective utilization of the guaranty program. This may
include, without limitation, a detailing of the remedies that
must be exhausted by tie bondholders, or a trustee acting on
their behalf, or other credit provided before prior to calling
upon the corporation to perform under its guaranty agreement and
the subrogation of other rights of the corporation with
reference to the capital project and its operation or the
financing in the event the corporation makes payment pursuant to
the applicable guaranty agreement. The regulations promulgated
by the corporation to govern the operation of the guaranty
program may shall contain specific provisions with respect to
the rights of the corporation to enter, take over, and manage
all financed properties upon default. These regulations shall be
submitted by sct forth thc respective rights of the corporation
to the Florida Energy and Climate Commission for approval -aret
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ENROLLED
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thc bondholders in regard thcrcto.
(10) The guaranty program described in this section may be
used by the corporation in conjunction with any federal guaranty
programs described in s. 406 of the American Recovery and
Reinvestment Act of 2009. All policies, procedures, and
regulations of the guaranty program adopted by the corporation,
to the extent such guaranty program of the corporation is used
in conjunction with a federal guaranty program described in s.
406 of the American Recovery and Reinvestment Act of 2009, must
be consistent with s. 406 of the American Recovery and
Reinvestment Act of 2009.
Section 8. Section 288.9608, Florida Statutes, is amended
to read:
288.9608 Creation and funding of the Energy, Technology,
and Economic Development Guaranty Fund guaranty account.—
(1) Thc corporation shall establish a dcbt service reserve
account which contains not less than 6 months' dcbt service
reserves fr m thc pr coeds f thc sale f any b nds guaranteed
by thc corporation. Funds in such dcbt scrvicc reserve account
shall be used prior to funds in thc Revenue Bond Guaranty
Rcscrvc Account established in subsection (2). Thc corporation
draw upon personal guarantees, and shall utilize thc Rcvcnuc
Bond Guaranty Reserve Account prior to u3c of supplemental
funding for thc Guaranty Reserve Account undcr the provisions of
3ub3ccti n (3).
(2)(a) The corporation shall establish an account known as
the Energy, Technology, and Economic Development Guaranty Fund
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Revenue Bond Guaranty Reserve Account, thc Guaranty Fund. The
corporation may shall deposit moneys a sum of moncy or other
cash equivalents into the this fund and maintain a balance in
the this fund, from general revenue funds of the state as are
authorized for that purpose or any other designated funding
sources not inconsistent with state law sources othcr than thc
State Transportation Trust Fund, not less than a sum equal to 1
year of maximum dcbt service on all outstanding bonds, or
portions thcrcof, of thc corporation for which a guaranty has
bccn issued pursuant to s,. 288.9606, 288.9607, and 288.9608.
(2)-(b-)-- If the corporation determines that the moneys in the
guaranty agreement fund are not sufficient to meet the
obligations of the guaranty agreement fund, the corporation is
authorized to use the necessary amount of any available moneys
that it may have which are not needed for, then or in the
foreseeable future, or committed to other authorized functions
and purposes of the corporation. Any such moneys so used may be
reimbursed out of the guaranty agreement fund if and when there
are moneys therein available for the purpose.
(3)-()- The determination of when additional moneys will be
needed for the guaranty agreement fund, the amounts that will be
needed, and the availability or unavailability of other moneys
shall be made solely by the corporation in the exercise of its
discretion. However, supplemental funding for thc Guaranty Fund
05 dco ribe-el—in—s-ub-e-e-e-tier-(3) shall be made in accordance with
thc investment agreement f thc corporation end thc Dcpartmcnt
of Transp rtation and thc State Board of Administration.
43)(-a) If thc corporation determines that thc funds in thc
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Guaranty Fund will not be s-fficicnt to mcct thc present or
reasonably projcctcd obligations of thc Guaranty Fund, duc to a
default on a loan mudc by thc corporation from thc proceeds of a
bond issued by thc co-rpo-ratios which is guaranteed pursuant to
s. 288.9607(7), no later than 9-0 day., bcforc amortization
paymcnts arc duc on such bonds, thc corporation shall notify thc
Sccrctary of Transportation and thc Statc Board of
(Administration of thc amount of funds rcquircd t mcct, as and
whcn duc, all amortization paymcnts for which thc Guaranty Fund
is bligatcd. The Sccrctary f Transp rtati n shall immediately
notify thc Spca]ccr of thc II u3c f Representatives, thc
Committccs on Appropriation, of thc -mount of funds rcquircd,
and thc projcctcd impact on cach affcctcd ycar of thc adoptcd
work program of thc Dcpartmcnt of Transportation.
(b) Within 30 days f thc receipt f n tificati n fr m thc
c rp rati n, thc Dcpartmcnt f Transp rtati n shall submit a
b�cndment rcgucsite- he Exccutiv�fice—e TcGo �z or
pursuant to chaptcr 216, to increase budgct authority to carry
out thc purposes of this section. Upon approval of said
amcndment, thc department shall procccd to amcnd thc adoptcd
w rk pr gram, if necessary, in acc rdancc with thc amcndmcnt.
Within 60 days of thc receipt of notification, and subjcct to
appr val f thc budget auth rity, thc Sccrctary f
Transp rtati n shall transfcr, subjcct t thc am unt available
from thc source describcd in paragraph (c), thc am unt of funds
requested by thc corporation rcquircd to mcct, as and whcn duc,
all amortization payments for which thc Guaranty Fund is
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bligatcd. Any m ncy, s tran3fcrrcd ,.hall bc rcimburccd t thc
Dcpartmcnt of Transportation, with intcrc3t at thc rate carncd
n investment by thc Statc Trca„ury, fr m thc funds availablc in
thc Cuaranty Fund or as othcrwi3c availablc to thc c rp ration.
(c) Pursuant to a. 288.9607(7), thc Secretary of
Transportation and thc Statc Board of Administration may makc
availablc for tran.3fcr to thc Cuaranty Fund, earnings accrucd
and c llcctcd up n thc invcstmcnt f thc minimum balancc f
funds rcquircd to bc maintaincd in thc Statc Transportation
Trust Fund. However, thc carning3 accrucd and collcctcd upon thc
invcstmcnt f thc minimum balancc f funds rcquircd t bc
maintaincd in thc Statc Transportation Trust Fund which shall bc
subject to transfer shall bc limited to those earnings accrucd
req�ri e e—bey _irat- nea r Statc Transportation Trust Fund
for thc fiscal ycar in which thc notification is rcccivcd by thc
occrctary and fiscal ycaro thcrcaftcr.
-(4) If thc corporation rcccivc3 supplemental funding for
thc Guaranty Fund undcr thc pr visi n3 f this accti n, then any
proceeds rcccivcd by the corporation with respect to a loan in
dcfault, including pr cccds from thc sale f collateral for such
loan, cnforccmcnt of personal guarantees or other plcdgcs to thc
c rp rati n t secure such 1 an, shall first bc applied t thc
obligation of thc corp ration to repay the Dcpartmcnt of
Transportation pursuant to thin 3cction. Until ouch rcpaymcnt is
c mplctc, n new b nd3 may be guarantccd pursuant t this
section.
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section, and on an annual basis, thc corporation must certify in
writing to thc State Board of Administration and thc Secretary
f Transportation that it has fully implemented thc requirements
of this section and s. 288.9607 and thc regulations of thc
corporation
Section 9. Section 288.9609, Florida Statutes, is amended
to read:
288.9609 Bonds as legal investments. —All banks, trust
companies, bankers, savings banks and institutions, building and
loan associations, savings and loan associations, investment
companies, and other persons carrying on a banking and
investment business; all insurance companies, insurance
associations, and other persons carrying on an insurance
business; and all executors, administrators, curators, trustees,
and other fiduciaries may legally invest any sinking funds,
moneys, or other funds belonging to them or within their control
in any bonds or other obligations issued by the corporation
pursuant t an intcrl cal ugrccmcnt with a public agency f this
state. Such bonds and obligations shall be authorized security
for all public deposits. It is the purpose of this section to
authorize all persons, political subdivisions, and officers,
public and private, to use any funds owned or controlled by them
for the purchase of any such bonds or other obligations. Nothing
contained in this section with regard to legal investments shall
be construed as relieving any person of any duty of exercising
reasonable care in selecting securities.
Section 10. Section 288.9610, Florida Statutes, is amended
to read:
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288.9610 Annual reports of Florida Development Finance
Corporation. —By December 1 of each year, the Florida Development
Finance Corporation shall submit to the Governor, the President
of the Senate, the Speaker of the House of Representatives, the
Senate Minority Leader, and the House Minority Leader, and thc
city or county activating thc Florida Development Finance
C rporation a complete and detailed report setting forth:
(1) The evaluation required in s. 11.45(3)(j).
(2) The operations and accomplishments of the Florida
Development Finance Corporation, including the number of
businesses assisted by the corporation.
(3) Its assets and liabilities at the end of its most
recent fiscal year, including a description of all of its
outstanding revenue bonds.
Section 11. Subsection (4) of section 206.46, Florida
Statutes, is amended to read:
206.46 State Transportation Trust Fund.—
(4) The department may authorize the investment of the
earnings accrued and collected upon the investment of the
minimum balance of funds required to be maintained in the State
Transportation Trust Fund pursuant to s. 339.135(6)(b). Such
investment shall be limited as provided in 3. 288.9607(7).
Section 12. Subsection (14) of section 215.47, Florida
Statutes, is amended to read:
215.47 Investments; authorized securities; loan of
securities. —Subject to the limitations and conditions of the
State Constitution or of the trust agreement relating to a trust
fund, moneys available for investments under ss. 215.44-215.53
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may be invested as follows:
(14) The State Board of Administration, consistent with
sound investment policy, may invest the earnings accrued and
collected upon the investment of the minimum balance of funds
required to be maintained in the State Transportation Trust Fund
pursuant to s. 339.135(6)(b). Such invcstmcnt shall bc limited
as provided in s. 288 . 9607 (7) .
Section 13. Subsection (3) of section 339.08, Florida
Statutes, is amended to read:
339.08 Use of moneys in State Transportation Trust Fund.—
(3) The department may authorize the investment of the
earnings accrued and collected upon the investment of the
minimum balance of funds required to be maintained in the State
Transportation Trust Fund pursuant to s. 339.135(6)(b). Such
invcstmcnt shall bc limitcd as pr vidcd in c. 288.9607(7).
Section 14. Paragraph (f) of subsection (7) of section
339.135, Florida Statutes, is amended to read:
339.135 Work program; legislative budget request;
definitions; preparation, adoption, execution, and amendment.—
(7) AMENDMENT OF THE ADOPTED WORK PROGRAM.—
(f) The department may authorize the investment of the
earnings accrued and collected upon the investment of the
minimum balance of funds required to be maintained in the State
Transportation Trust Fund pursuant to paragraph (b). Such
invcstmcnt shall bc limited as provided in s. 288.9607(7).
Section 15. (1) The Legislature finds that the ability of
the pilot communities designated under the Energy Economic Zone
Pilot Program pursuant to s. 377.809, Florida Statutes, to
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provide incentives is essential to these communities attracting
clean technology industries and investments to the state and
establishing the base information necessary to assess whether to
revise state policies and expand the pilot program to other
communities.
(2) By February 1, 2011, the Department of Community
Affairs and the Office of Tourism, Trade, and Economic
Development, in consultation with the Florida Energy and Climate
Commission, shall submit recommendations to the Governor, the
President of the Senate, and the Speaker of the House of
Representatives of appropriate incentives and statutory
revisions necessary to provide the pilot communities with the
tools for accomplishing the goals of the pilot program. In
developing their recommendations, the Department of Community
Affairs and the Office of Tourism, Trade, and Economic
Development, at a minimum, shall consider:
(a) Fiscal and regulatory incentives.
(b) A jobs tax credit and corporate property tax credit
pursuant to chapter 220, Florida Statutes.
(c) Refunds and exemptions from the sales and use tax in
chapter 212, Florida Statutes, for job creation, building
materials, business property, and products used for clean
technology industries and investments within the designated
energy economic zones.
(3) The Department of Community Affairs and the Office of
Tourism, Trade, and Economic Development shall also coordinate
with the pilot communities and clean technology industries in
identifying incentives and strategies that will help attract
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emerging clean technology industries and investments to the
state.
Section 16. Paragraph (d) of subsection (2) of section
366.91, Florida Statutes, is amended to read:
366.91 Renewable energy.—
(2) As used in this section, the term:
(d) "Renewable energy" means electrical energy produced
from a method that uses one or more of the following fuels or
energy sources: hydrogen produced from sources other than fossil
fuels, biomass, solar energy, geothermal energy, wind energy,
ocean energy, and hydroelectric power. The term includes the
alternative energy resource, waste heat, from sulfuric acid
manufacturing operations and electrical energy produced using
pipeline -quality synthetic gas produced from waste petroleum
coke with carbon capture and sequestration.
Section 17. This act shall take effect upon becoming a
law.
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