SB-0272, As Passed House, December 19, 2014
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 272
A bill to amend 1984 PA 270, entitled
"Michigan strategic fund act,"
by amending sections 4, 5, and 23 (MCL 125.2004, 125.2005, and
125.2023), section 4 as amended by 2012 PA 145, section 5 as
amended by 2011 PA 251, and section 23 as amended by 2009 PA 85,
and by adding section 7b.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 4. As used in this act:
(a) "Board" means the board of directors of the Michigan
strategic fund, except where the context clearly requires a
different definition.
(b) "Economic development project" means an endeavor related
to industrial, commercial, or agricultural enterprise. Economic
development project includes, but is not limited to, a theme or
recreation park; agricultural or forestry production, harvesting,
storage, or processing facilities or equipment; port facilities;
and the use of equipment or facilities designed to produce energy
from renewable resources. Economic development project does not
include that portion of an endeavor devoted to the sale of goods at
retail, except that, as used in relation to the fund insuring a
transaction entered into by a depository institution, and as used
in relation to a loan by the fund to a minority owned business, an
economic development project may include that portion of an
endeavor devoted to the sale of goods at retail. Economic
development project does not include that portion of an endeavor
devoted to housing or a program or activity authorized under
chapter 8A.
(c) "Financial institution" means a state or nationally
chartered bank or a state or federally chartered savings and loan
association, savings bank, or credit union whose deposits are
insured by an agency of the United States government and that
maintains a principal office or branch office in this state under
the laws of this state or the United States.
(d) "Fund" means the Michigan strategic fund created under
section 5, except where the context clearly requires a different
definition.
(e) "Green chemistry" means chemistry and chemical engineering
to design chemical products or processes that reduce or eliminate
the use or generation of hazardous substances, while producing
high-quality products through safe and efficient manufacturing
processes. Green chemistry is guided by the following 12
principles:
(i) Prevent waste: Design chemical syntheses to prevent waste,
leaving no waste to treat or clean up.
(ii) Design safer chemicals and products: Design chemical
products to be fully effective, yet have little or no toxicity.
(iii) Design less hazardous chemical syntheses: Design syntheses
to use and generate substances with little or no toxicity to humans
and the environment.
(iv) Use renewable feedstocks: Use raw materials and feedstocks
that are renewable rather than depleting. Renewable feedstocks are
often made from agricultural products or are the wastes of other
processes; depleting feedstocks are made from fossil fuels,
including petroleum, natural gas, or coal, or are mined.
(v) Use catalysts, not stoichiometric reagents: Minimize waste
by using catalytic reactions. Catalysts are used in small amounts
and can carry out a single reaction many times. They are preferable
to stoichiometric reagents, which are used in excess and work only
once.
(vi) Avoid chemical derivatives: Avoid using blocking or
protecting groups or any temporary modifications if possible.
Derivatives use additional reagents and generate waste.
(vii) Maximize atom economy: Design syntheses so that the final
product contains the maximum proportion of the starting materials.
There should be few, if any, wasted atoms.
(viii) Use safer solvents and reaction conditions: Avoid using
solvents, separation agents, or other auxiliary chemicals. If these
chemicals are necessary, use innocuous chemicals.
(ix) Increase energy efficiency: Run chemical reactions at
ambient temperature and pressure whenever possible.
(x) Design chemicals and products to degrade after use: Design
chemical products to break down to innocuous substances after use
so that they do not accumulate in the environment.
(xi) Analyze in real-time to prevent pollution: Include in-
process real-time monitoring and control during syntheses to
minimize or eliminate the formation of by-products.
(xii) Minimize the potential for accidents: Design chemicals
and their forms, including solid, liquid, or gas, to minimize the
potential for chemical accidents, including explosions, fires, and
releases to the environment.
(f) "Michigan economic development corporation" or "MEDC"
means the Michigan economic development corporation, the public
body corporate created under section 28 of article VII of the state
constitution of 1963 and the urban cooperation act of 1967, 1967
(Ex Sess) PA 7, MCL 124.501 to 124.512, by a contractual interlocal
agreement effective April 5, 1999, and subsequently amended,
between local participating economic development corporations
formed under the economic development corporations act, 1974 PA
338, MCL 125.1601 to 125.1636, and the fund.
(g) "Municipality" means a county, city, village, township,
port district, development organization, institution of higher
education, community or junior college, or subdivision or
instrumentality of any of the legal entities listed in this
subdivision.
(h) "Person" means an individual, sole proprietorship,
partnership, limited partnership, limited liability partnership,
limited liability company, joint venture, profit or nonprofit
corporation including a public or private college or university,
public utility, municipality, local industrial development
corporation,
economic development corporation, or other association
of persons organized for agricultural, commercial, or industrial
purposes, a lender, or any other entity approved by the board.
(i) "Port facilities" means seawall jetties; piers; wharves;
docks; boat landings; marinas; warehouses; storehouses; elevators;
grain bins; cold storage plants; bunkers; oil tanks; ferries;
canals; locks; bridges; tunnels; seaways; conveyors; modern
appliances for the economical handling, storage, and transportation
of freight and handling of passenger traffic; transfer and terminal
facilities required for the efficient operation and development of
ports and harbors; other harbor improvements; or improvements,
enlargements, remodeling, or extensions of any of these buildings
or structures. Port facilities do not include an international
bridge or international tunnel.
(j) (i)
"Project" means an
economic development project and,
in addition, means the acquisition, construction, reconstruction,
conversion, or leasing of an industrial, commercial, retail,
agricultural, or forestry enterprise, or any part of these, to
carry out the purposes and objectives of this act and of the fund,
including, but not limited to, acquisition of land or interest in
land, buildings, structures, or other planned or existing planned
improvements to land including leasehold improvements, machinery,
equipment, or furnishings which include, but are not limited to,
Senate Bill No. 272 (H-1) as amended December 19, 2014
the following: research parks; office facilities; engineering
facilities; research and development laboratories; warehousing
facilities; parts distribution facilities; depots or storage
facilities; port facilities; railroad facilities, including
trackage, right of way, and appurtenances; airports; [bridges and bridge
facilities;] water and air
pollution control equipment or waste disposal facilities; theme or
recreational parks; equipment or facilities designed to produce
energy from renewable resources; farms, ranches, forests, and other
agricultural or forestry commodity producers; agricultural
harvesting, storage, transportation, or processing facilities or
equipment; grain elevators; shipping heads and livestock pens;
livestock; warehouses; wharves and dock facilities; dredging of
recreational or commercial harbors; water, electricity, hydro
electric, coal, petroleum, or natural gas provision facilities;
dams and irrigation facilities; sewage, liquid, and solid waste
collection, disposal treatment, and drainage services and
facilities. Project does not include a program or activity
authorized under chapter 8A.
(k) (j)
"Private sector" means
other than the fund, a state or
federal source, or an agency of a state or the federal government.
Sec. 5. (1) There is created by this act a public body
corporate and politic to be known as the Michigan strategic fund.
The fund shall be within the department of treasury and shall
exercise its prescribed statutory powers, duties, and functions
independently of the state treasurer. The statutory authority,
powers, duties, functions, records, personnel, property, unexpended
balances of appropriations, allocations, and other funds of the
fund, including the functions of budgeting, procurement, personnel,
and management-related functions, shall be retained by the fund,
and the fund shall be an autonomous entity within the department of
treasury in the same manner as the Michigan employment security
commission was designated an autonomous entity within the Michigan
department of labor under section 379 of the executive organization
act of 1965, 1965 PA 380, MCL 16.479.
(2) Except as otherwise provided in this act, the purposes,
powers, and duties of the Michigan strategic fund are vested in and
shall be exercised by a board of directors.
(3) Except as provided in subsection (4), the board shall
consist of the director of the department of licensing and
regulatory affairs or his or her designee from within the
department of licensing and regulatory affairs, the state treasurer
or his or her designee from within the department of treasury, the
chief executive officer of the MEDC or his or her designee, and 6
other members with knowledge, skill, and experience in the
academic, business, or financial field, who shall be appointed by
the governor with the advice and consent of the senate. None of the
6 members appointed under this section shall be employees of this
state. Not less than 5 members of the board appointed under this
subsection shall be members of the private sector. Five of the 6
members appointed under this subsection shall serve for fixed
terms. Upon completion of each fixed term expiring after December
30, 2005, a member shall be appointed for a term of 4 years. Of the
private sector members appointed by the governor for a fixed term,
1 shall be appointed from a list of 3 or more nominees of the
speaker of the house of representatives representing persons within
the private sector with experience in private equity or venture
capital investments, commercial lending, or commercialization of
technology and 1 shall be appointed from a list of 3 or more
nominees of the senate majority leader representing persons within
the private sector with experience in private equity or venture
capital investments, commercial lending, or commercialization of
technology. A member appointed under this subsection or subsection
(4) shall serve until a successor is appointed, and a vacancy shall
be filled for the balance of the unexpired term in the same manner
as the original appointment. The member appointed under this
subsection and serving without a fixed term shall serve at the
pleasure of the governor. Of the members appointed under this
subsection and subsection (4), there shall be minority, female, and
small business representation. After December 31, 2005, at least 2
of the members of the board shall have experience in private equity
or venture capital investments, at least 1 of the members shall
have experience in commercial lending, and at least 1 of the
members of the board shall have experience in commercialization of
technology.
(4) In addition to the 9 members of the board under subsection
(3), not later than December 15, 2005, the governor shall appoint,
with the advice and consent of the senate, 2 additional members to
the board for terms expiring December 31, 2007. After the initial
appointments under this subsection, members appointed under this
subsection shall be appointed for a term of 4 years. The members
appointed under this subsection shall be from the private sector
and shall have experience in private equity or venture capital
investments, commercial lending, or commercialization of
technology. From the date of the appointment of the members under
this subsection until December 31, 2015, the board shall have 11
members. After December 31, 2015, the board shall have 9 members
and no members shall be appointed under this subsection.
(5) The governor shall designate 1 member of the board to
serve as its chairperson. The governor shall designate 1 member of
the board to serve as president of the fund and may designate 1
member to serve as vice-president of the fund. The chairperson,
president, and vice-president, if a vice-president is designated,
shall serve as those officers at the pleasure of the governor.
(6) Members of the board shall serve without compensation for
their membership on the board, except that members of the board may
receive reasonable reimbursement for necessary travel and expenses.
(7) The board may delegate to its president, vice-president,
staff, or others, including the MEDC, those functions and authority
that the board deems necessary or appropriate, which may include
the oversight and supervision of employees of the fund. However,
responsibilities specifically vested in the board under chapter 8A
shall be performed by the board and shall not be transferred to the
MEDC, except that Michigan business development program incentives
under section 88r, and community revitalization incentives under
chapter 8C, of $1,000,000.00 or less can be authorized by the
president of the fund.
(8) A majority of the members of the board appointed and
serving constitutes a quorum for the transaction of business at a
meeting, or the exercise of a power or function of the fund,
notwithstanding the existence of 1 or more vacancies. The board may
act only by resolution approved by a majority of board members
appointed and serving. Voting upon action taken by the board shall
be conducted by majority vote of the members appointed and serving.
Members of the board may be present in person at a meeting of the
board or, if authorized by the bylaws of the board, by use of
telecommunications or other electronic equipment. The fund shall
meet at the call of the chair and as may be provided in the bylaws
of the fund. Meetings of the fund may be held anywhere within the
state of Michigan.
(9) The business of the board shall be conducted at a public
meeting of the board held in compliance with the open meetings act,
1976 PA 267, MCL 15.261 to 15.275. Public notice of the time, date,
and place of the meeting shall be given in the manner required by
the open meetings act, 1976 PA 267, MCL 15.261 to 15.275, and shall
also be provided on an internet website operated by the fund. A
record or portion of a record, material, or other data received,
prepared, used, or retained by the fund or any of its centers in
connection with an application to or with a project or product
assisted by the fund or any of its centers or with an award, grant,
loan, or investment that relates to financial or proprietary
information submitted by the applicant that is considered by the
applicant and acknowledged by the board or a designee of the board
as confidential shall not be subject to the disclosure requirements
of the freedom of information act, 1976 PA 442, MCL 15.231 to
15.246. The disclosure of a record concerning investment
information described in section 88c under the freedom of
information act, 1976 PA 442, MCL 15.231 to 15.246, is subject to
the limitations provided in section 88c. The board may also meet in
closed session pursuant to the open meetings act, 1976 PA 267, MCL
15.261 to 15.275, to make a determination of whether it
acknowledges as confidential any financial or proprietary
information submitted by the applicant and considered by the
applicant as confidential. Unless considered proprietary
information, the board shall not acknowledge routine financial
information as confidential. If the board determines that
information submitted to the fund is financial or proprietary
information and is confidential, the board shall release a written
statement, subject to disclosure under the freedom of information
act, 1976 PA 442, MCL 15.231 to 15.246, that states all of the
following:
(a) The name and business location of the person requesting
that the information submitted be confidential as financial or
proprietary information.
(b) That the information submitted was determined by the board
to be confidential as financial or proprietary information.
(c) A broad nonspecific overview of the financial or
proprietary information determined to be confidential.
(10) The fund shall not disclose financial or proprietary
information not subject to disclosure pursuant to subsection (9)
without consent of the applicant submitting the information.
(11) Any document to which the fund is a party evidencing a
loan, insurance, mortgage, lease, venture, or other type of
agreement the fund is authorized to enter into shall not be
considered financial or proprietary information that may be exempt
from disclosure under subsection (9).
(12) For purposes of subsections (9), (10), and (11),
"financial or proprietary information" means information that has
not been publicly disseminated or which is unavailable from other
sources, the release of which might cause the applicant significant
competitive harm.
Sec. 7b. (1) The governor shall establish and appoint an
advisory committee to make recommendations to the board regarding
projects relating to port facilities.
(2) The advisory board described in subsection (1) shall
contain 9 members appointed by the governor as follows:
(a) Five members representing the interests of the following
geographical areas of this state as determined by the governor:
(i) The Upper Peninsula of this state.
(ii) The southwest area of this state.
(iii) The northern Lower Peninsula of this state.
(iv) The southeast area of this state.
(v) The thumb area or midstate area of this state.
(b) One member representing the interests of the agricultural
business supply and handling industry.
(c) One member representing the interests of the aggregate
supply community.
(d) One member appointed from 2 or more nominees of the
majority leader of the senate.
(e) One member appointed from 2 or more nominees of the
speaker of the house of representatives.
(3) All of the individuals appointed to the advisory board
described under subsection (2) shall be knowledgable about port
facilities or economic development as determined by the governor
and shall serve at the pleasure of the governor.
Sec. 23. (1) The fund may borrow money and issue bonds or
notes for the following purposes:
(a) To provide sufficient funds for achieving the fund's
purposes and objectives including, but not limited to, amounts
necessary to pay the costs of acquiring a project or part of a
project; to make loans for the costs of a project or part of a
project; to make loans pursuant to section 7(r) for an export
related transaction; for making grants; for providing money to
guarantee or insure loans, leases, bonds, notes, or other
indebtedness; for making working capital loans; for all other
expenditures of the fund incident to and necessary or convenient to
carry out the fund's purposes, objectives, and powers; and for any
combination of the foregoing. The cost of a project may include
administrative costs including, but not limited to, engineering,
architectural, legal, and accounting fees that are necessary for
the project.
(b) To refund bonds or notes of the fund issued under this
act, of the job development authority issued under former 1975 PA
301, of the Michigan economic development authority issued under
former 1982 PA 70, of an economic development corporation issued
under the economic development corporations act, 1974 PA 338, MCL
125.1601 to 125.1636, or of a municipality issued under the
industrial development revenue bond act of 1963, 1963 PA 62, MCL
125.1251 to 125.1267, by the issuance of new bonds, whether or not
the bonds or notes to be refunded have matured or are subject to
prior redemption or are to be paid, redeemed, or surrendered at the
time of the issuance of the refunding bonds or notes; and to issue
bonds or notes partly to refund the bonds or notes and partly for
any other purpose provided for by this section.
(c) To pay the costs of issuance of bonds or notes under this
act; to pay interest on bonds or notes becoming payable prior to
the receipt of the first revenues available for payment of that
interest as determined by the board; and to establish, in full or
in part, a reserve for the payment of the principal and interest on
the bonds or notes in the amount determined by the board.
(2) The bonds and notes, including, but not limited to,
commercial paper, shall be authorized by resolution adopted by the
board, shall bear the date or dates, and shall mature at the time
or times not exceeding 50 years from the date of issuance, as the
resolution may provide. The bonds and notes shall bear interest at
the rate or rates as may be set, reset, or calculated from time to
time, or may bear no interest, as provided in the resolution. The
bonds and notes shall be in the denominations, be in the form,
either coupon or registered, carry the registration privileges, be
transferable, be executed in the manner, be payable in the medium
of payment, at the place or places, and be subject to the terms of
prior redemption at the option of the fund or the holders of the
bonds and notes as the resolution or resolutions may provide. The
bonds and notes of the fund may be sold at public or private sale
at the price or prices determined by the fund. For purposes of 1966
PA 326, MCL 438.31 to 438.33, this act and other acts applicable to
the fund shall regulate the rate of interest payable or charged by
the fund, and 1966 PA 326, MCL 438.31 to 438.33, does not apply.
Bonds and notes may be sold at a discount.
(3) Bonds or notes may be 1 or more of the following:
(a) Made the subject of a put or agreement to repurchase by
the fund or others.
(b) Secured by a letter of credit or by any other collateral
that the resolution may authorize.
(c) Reissued by the fund once reacquired by the fund pursuant
to any put or repurchase agreement.
(4) The fund may authorize by resolution any member of the
board to do 1 or more of the following:
(a) Sell and deliver, and receive payment for notes or bonds.
(b) Refund notes or bonds by the delivery of new notes or
bonds whether or not the notes or bonds to be refunded have
matured, are subject to prior redemption, or are to be paid,
redeemed, or surrendered at the time of the issuance of refunding
bonds or notes.
(c) Deliver notes or bonds, partly to refund notes or bonds
and partly for any other authorized purposes.
(d) Buy notes or bonds so issued at not more than the face
value of the notes or bonds.
(e) Approve interest rates or methods for fixing interest
rates, prices, discounts, maturities, principal amounts,
denominations, dates of issuance, interest payment dates,
redemption rights at the option of the fund or the holder, the
place of delivery and payment, and other matters and procedures
necessary to complete the transactions authorized.
(5) Except as may otherwise be expressly provided by the fund,
every issue of its notes or bonds shall be general obligations of
the fund payable out of revenues, properties, or money of the fund,
subject only to agreements with the holders of particular notes or
bonds pledging particular receipts, revenues, properties, or money
as security for the notes or bonds.
(6) The notes or bonds of the fund are negotiable instruments
within the meaning of and for all the purposes of the uniform
commercial
code, 1962 PA 174, MCL 440.1101 to 440.11102, 440.9994,
subject only to the provisions of the notes or bonds for
registration.
(7) Bonds or notes issued by the fund are not subject to the
terms of the revised municipal finance act, 2001 PA 34, MCL
141.2101 to 141.2821. The bonds or notes issued by the fund are not
required to be registered. A filing of a bond or note of the fund
is
not required under the uniform securities act, 1964 PA 265, MCL
451.501
to 451.818, or the uniform
securities act (2002), 2008 PA
551, MCL 451.2101 to 451.2703.
(8) A resolution authorizing notes or bonds may contain any or
all of the following covenants, which shall be a part of the
contract with the holders of the notes or bonds:
(a) A pledge of all or a part of the fees, charges, and
revenues made or received by the fund, or all or a part of the
money received in payment of lease rentals, or loans and interest
on the loans, and other money received or to be received to secure
the payment of the notes or bonds or of an issue of the notes or
bonds, subject to agreements with bondholders or noteholders as may
then exist.
(b) A pledge of all or a part of the assets of the fund,
including leases, or notes or mortgages and obligations securing
the same to secure the payment of the notes or bonds or of an issue
of notes or bonds, subject to agreements with noteholders or
bondholders as may then exist.
(c) A pledge of a loan, grant, or contribution from the
federal, state, or local government, or source in aid of a project
as provided for in this act.
(d) A pledge of money directly derived from payments from the
heritage trust fund created by the heritage trust fund act of 1982,
former 1982 PA 327.
(e) The use and disposition of the revenues and income from
leases, or from loans, notes, and mortgages owned by the fund.
(f) The establishment and setting aside of reserves or sinking
funds and the regulation and disposition of reserves or sinking
funds subject to this act.
(g) Limitations on the purpose to which the proceeds of sale
of the notes or bonds may be applied and limitations on pledging
those proceeds to secure the payment of other bonds or notes.
(h) Authority for and limitations on the issuance of
additional notes or bonds for the purposes provided for in the
resolution and the terms upon which additional notes or bonds may
be issued and secured. Additional bonds pledging money derived from
the heritage trust fund as provided in subdivision (d) may only be
issued if the issuance meets the requirements of section 204 of the
resolution adopted by the Michigan economic development authority
authorizing issuance of its bonds dated December 1, 1982, and any
requirement of former 1982 PA 70, provided that these requirements
do not apply if those bonds have been defeased.
(i) The procedure, if any, by which the terms of a contract
with noteholders or bondholders may be amended or abrogated, the
number of noteholders or bondholders who are required to consent to
an amendment or abrogation, and the manner in which the consent may
be given.
(j) Vest in a trustee or a secured party the property, income,
revenues, receipts, rights, remedies, powers, and duties in trust
or otherwise as the fund may determine necessary or appropriate to
adequately secure and protect noteholders and bondholders or to
limit or abrogate the rights of the noteholders and bondholders. A
trust agreement may be executed by the fund with any trustee who
may be located inside or outside this state to accomplish any of
the foregoing.
(k) Pay maintenance and repair costs of a project.
(l) The insurance to be carried on a project and the use and
disposition of insurance money and condemnation awards.
(m) The terms, conditions, and agreements upon which the
holder of the bonds, or a portion of the bonds, is entitled to the
appointment of a receiver by the circuit court. A receiver who is
appointed may enter and take possession of the project and maintain
it or lease or sell the project for cash or on an installment sales
contract and prescribe rentals and payments therefor and collect,
receive, and apply all income and revenues thereafter arising in
the same manner and to the same extent as the fund.
(n) Any other matters, of like or different character, which
in any way affect the security or protection of the notes or bonds.
(9) A pledge made by the fund is valid and binding from the
time the pledge is made. The money or property so pledged and
thereafter received by the fund is immediately subject to the lien
of the pledge without a physical delivery or further act. The lien
of a pledge is valid and binding as against parties having claims
of any kind in tort, contract, or otherwise against the fund and is
valid and binding as against the transfer of the money or property
pledged, irrespective of whether the parties have notice. Neither
the resolution, the trust agreement, nor any other instrument by
which a pledge is created need be recorded.
(10) A member of the board or a person executing the notes or
bonds is not liable personally on the notes or bonds and is not
subject to personal liability of accountability by reason of the
issuance of the notes or bonds.
(11) This state is not liable on notes or bonds of the fund,
and the notes or bonds shall not be considered a debt of this
state. The notes and bonds shall contain on their face a statement
indicating this fact.
(12) The notes and bonds of the fund are securities in which
the public officers and bodies of this state; municipalities and
municipal subdivisions; insurance companies, associations, and
other persons carrying on an insurance business; banks, trust
companies, savings banks, savings associations, and savings and
loan associations; investment companies; administrators, guardians,
executors, trustees, and other fiduciaries; and all other persons
who are authorized to invest in bonds or other obligations of this
state may properly and legally invest funds.
(13) The property of the fund and its income and operation is
exempt from all taxation by this state or any of its political
subdivisions, and all bonds and notes of the fund, the interest on
the bonds and notes, and their transfer are exempt from all
taxation by this state or any of its political subdivisions, except
for estate, gift, and inheritance taxes. The state covenants with
the purchasers and all subsequent holders and transferees of notes
and bonds issued by the fund under this act, in consideration of
the acceptance of and payment for the notes and bonds, that the
notes and bonds of the fund, issued pursuant to this act, the
interest on the notes and bonds, the transfer of the notes and
bonds, and all its fees, charges, gifts, grants, revenues,
receipts, and other money received or to be received and pledged to
pay or secure the payment of the notes or bonds shall at all times
be free and exempt from all state or local taxation provided by the
laws of this state, except for estate, gift, and inheritance taxes.
(14) The issuance of bonds and notes under this act is subject
to the agency financing reporting act, 2002 PA 470, MCL 129.171 to
129.177.
(15) For the purpose of more effectively managing its debt
service, the fund may enter into an interest rate exchange or swap,
hedge, or similar agreement with respect to its bonds or notes on
the terms and payable from the sources and with the security, if
any,
as determined by a the
board by resolution. of
the board.