CO Code § 23-1-106.3 (2021)
2021 Colorado Code|Title 23 - Postsecondary Education|Article 1 - Colorado Commission on Higher Education|§ 23-1-106.3. Duties and Powers of the Commission - Capital Construction Projects - Federal Mineral Lease Revenues Fund - Higher Education Institutions Financed Purchase of an Asset Cash Fund

     As soon as possible after May 12, 2008, the commission, after consultation with the appropriate governing boards of state-supported institutions of higher education, shall submit to the office of state planning and budgeting and to the capital development committee of the general assembly, established pursuant to section 2-3-1302, a prioritized list of capital construction projects at the state-supported institutions of higher education to be constructed using financed purchase of an asset or certificate of participation agreements funded through the higher education federal mineral lease revenues fund established pursuant to section 23-19.9-102 (1) and referred to in this section as the “revenues fund”. As soon as possible after receipt of the list from the commission, the office of state planning and budgeting shall submit to the capital development committee a prioritized list of capital construction projects at state-supported institutions of higher education to be constructed using financed purchase of an asset or certificate of participation agreements funded through the revenues fund.      As soon as possible after receipt of the prioritized list from the office of state planning and budgeting, the capital development committee shall review the prioritized lists submitted by the commission and the office of state planning and budgeting and shall submit to the joint budget committee of the general assembly a prioritized list of capital construction projects at state-supported institutions of higher education to be constructed using financed purchase of an asset or certificate of participation agreements funded through the revenues fund. (b) (I) As soon as possible after receipt of the prioritized list from the office of state planning and budgeting, the capital development committee shall review the prioritized lists submitted by the commission and the office of state planning and budgeting and shall submit to the joint budget committee of the general assembly a prioritized list of capital construction projects at state-supported institutions of higher education to be constructed using financed purchase of an asset or certificate of participation agreements funded through the revenues fund.    As soon as possible after receipt of the prioritized list from the capital development committee, the joint budget committee shall review the prioritized list submitted by the capital development committee and shall sponsor a joint resolution specifying a prioritized list of capital construction projects at state-supported institutions of higher education to be constructed using financed purchase of an asset or certificate of participation agreements funded through the revenues fund. The resolution shall contain a listing of the maximum amount of principal to be raised through financed purchase of an asset or certificate of participation agreements to be paid from the revenues fund, the minimum amount of principal to be contributed by the institution, and the total anticipated cost of the project.    If approved by the general assembly, the joint resolution shall be presented to the governor in accordance with section 39 of article V of the state constitution.    The anticipated annual state-funded payments for the principal and interest components of amount payable under all financed purchase of an asset or certificate of participation agreements on the projects listed in the joint resolution adopted and approved pursuant to this subsection (1)(b) entered into during the fiscal year commencing July 1, 2008, shall not exceed an average of sixteen million two hundred thousand dollars per year for the first ten years of payments and sixteen million eight hundred thousand dollars per year during the second ten years of payments.    To the extent that any projects on the prioritized list contained in the joint resolution introduced and approved pursuant to this subsection (1) are not the subject of financed purchase of an asset or certificate of participation agreements entered into pursuant to subsection (3) of this section and to the extent that the state treasurer determines that there is sufficient money in the revenues fund to enter into an additional financed purchase of an asset or certificate of participation agreement or agreements during the fiscal year commencing July 1, 2009, the remaining projects on the prioritized list in the joint resolution shall be the prioritized list for financed purchase of an asset or certificate of participation agreements entered into during the fiscal year commencing July 1, 2009.            On or before August 15, 2009, and on or before August 15 of each year thereafter through August 15, 2015, the state treasurer shall notify the commission, the office of state planning and budgeting, the capital development committee, and the joint budget committee of the amount of money in the revenues fund and whether the treasurer determines that there is sufficient money in the revenues fund to enter into additional financed purchase of an asset or certificate of participation agreements to be funded from the revenues fund. On and after April 14, 2016, the state shall not enter into any additional financed purchase of an asset or certificate of participation agreements to be funded from the revenues fund.    After the notification required by subsection (2)(a) of this section is received, and the treasurer has determined that there is sufficient money in the revenues fund to enter into additional financed purchase of an asset or certificate of participation agreements, the commission, the office of state planning and budgeting, the capital development committee, and the joint budget committee, pursuant to the procedures established in subsection (1) of this section, may promptly consider a new prioritized list of capital construction projects at state-supported institutions of higher education to be constructed using financed purchase of an asset or certificate of participation agreements funded through the revenues fund. A joint resolution introduced pursuant to this subsection (2)(b) shall also include a statement of the maximum average anticipated state-funded payments under all financed purchase of an asset or certificate of participation agreements to be authorized through the joint resolution.           Notwithstanding the provisions of sections 24-82-102 (1)(b) and 24-82-801, the state of Colorado, acting by and through the state treasurer, is authorized to execute financed purchase of an asset or certificate of participation agreements each for no more than twenty years of annual payments on the projects listed in the joint resolution adopted and approved pursuant to subsection (1)(b) or (2)(b) of this section. The financed purchase of an asset or certificate of participation agreements authorized pursuant to this subsection (3)(a) may be for the total amount of the project cost as reflected in the joint resolution. A state-supported institution of higher education may either contribute the full amount of its share of the cost of the project at the commencement of the project or may have its share of the cost of the project included in the financed purchase of an asset or certificate of participation agreement. Based upon the total amount of money that one or more financed purchase of an asset or certificate of participation agreements is able to raise, the treasurer shall enter into financed purchase of an asset or certificate of participation agreements in the order of the prioritized list contained in the joint resolution; except that, if, after funding all previous projects on the list, the amount of money is insufficient to fund the entire project that is next on the list, the treasurer may enter into a financed purchase of an asset or certificate of participation agreement on the next project or projects on the list that may be completely funded. (a) (I)Notwithstanding the provisions of sections 24-82-102 (1)(b) and 24-82-801, the state of Colorado, acting by and through the state treasurer, is authorized to execute financed purchase of an asset or certificate of participation agreements each for no more than twenty years of annual payments on the projects listed in the joint resolution adopted and approved pursuant to subsection (1)(b) or (2)(b) of this section. The financed purchase of an asset or certificate of participation agreements authorized pursuant to this subsection (3)(a) may be for the total amount of the project cost as reflected in the joint resolution. A state-supported institution of higher education may either contribute the full amount of its share of the cost of the project at the commencement of the project or may have its share of the cost of the project included in the financed purchase of an asset or certificate of participation agreement. Based upon the total amount of money that one or more financed purchase of an asset or certificate of participation agreements is able to raise, the treasurer shall enter into financed purchase of an asset or certificate of participation agreements in the order of the prioritized list contained in the joint resolution; except that, if, after funding all previous projects on the list, the amount of money is insufficient to fund the entire project that is next on the list, the treasurer may enter into a financed purchase of an asset or certificate of participation agreement on the next project or projects on the list that may be completely funded.    The state treasurer shall ensure that each state-supported institution of higher education submits a certificate of completion no later than August 1, 2012, for each project funded in whole or in part by the financed purchase of an asset or certificate of participation agreement entered into by the state treasurer in 2008 pursuant to this section. After such certificates of completion are received by the state treasurer, the state treasurer and the state controller shall calculate the amount of unspent proceeds raised through the 2008 financed purchase of an asset or certificate of participation agreement. The state treasurer and the state controller shall also calculate the amount of the unspent institutional shares of the total project costs. The state treasurer and state controller shall provide these amounts to the capital development committee in writing no later than August 15, 2012. No later than thirty days after receiving such amounts, the capital development committee shall hold a public meeting during the interim between the second regular session of the sixty-eighth general assembly and the first regular session of the sixty-ninth general assembly to decide, by majority vote, what the unspent proceeds raised through the 2008 financed purchase of an asset or certificate of participation agreement and the unspent institutional shares of the total project costs should be used to fund. The capital development committee's decision shall be limited to funding capital construction projects at state-supported institutions of higher education or, so long as such projects are identified as eligible by bond counsel, controlled maintenance projects at state-supported institutions of higher education. The capital development committee shall communicate the decision to the state treasurer in writing, and the state treasurer shall ensure that the approved project or projects are funded from the unspent proceeds raised through the 2008 financed purchase of an asset or certificate of participation agreement and the unspent institutional shares of the total project costs as soon as possible.         The state of Colorado, acting by and through the state treasurer, at the state treasurer's sole discretion, may enter into one or more financed purchase of an asset or certificate of participation agreements authorized by subsection (3)(a) of this section with any for-profit or nonprofit corporation, trust, or commercial bank as a trustee, as lessor, including but not limited to the Colorado educational and cultural facilities authority created pursuant to section 23-15-104. (b) (I) The state of Colorado, acting by and through the state treasurer, at the state treasurer's sole discretion, may enter into one or more financed purchase of an asset or certificate of participation agreements authorized by subsection (3)(a) of this section with any for-profit or nonprofit corporation, trust, or commercial bank as a trustee, as lessor, including but not limited to the Colorado educational and cultural facilities authority created pursuant to section 23-15-104.    (A) Any financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (3)(a) of this section shall provide that all of the obligations of the state under the agreement shall be subject to the action of the general assembly in annually making money available for all payments thereunder. Payments under any financed purchase of an asset or certificate of participation agreement shall be made from the revenues fund and any money in the higher education institutions financed purchase of an asset cash fund established in subsection (4) of this section.    Any financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (3)(a) of this section may contain such terms, provisions, and conditions as the state treasurer, acting on behalf of the state of Colorado, may deem appropriate, including all optional terms; except that each financed purchase of an asset or certificate of participation agreement shall specifically authorize the state of Colorado or the governing board of the applicable state-supported institution of higher education to receive fee title to all real and personal property that is the subject of the financed purchase of an asset or certificate of participation agreement on or prior to the expiration of the terms of the agreement. Any title to such property received by the state on or prior to the expiration of the terms of the financed purchase of an asset or certificate of participation agreement shall be held for the benefit and use of such governing board.    Any financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (3)(a) of this section may provide for the issuance, distribution, and sale of instruments evidencing rights to receive rentals and other payments made and to be made under the financed purchase of an asset or certificate of participation agreement. The instruments may be issued, distributed, or sold only by the seller or any person designated by the seller and not by the state. The instruments shall not create a relationship between the purchasers of the instruments and the state or create any obligation on the part of the state to the purchasers. The instruments shall not be notes, bonds, or any other evidence of indebtedness of the state within the meaning of any provision of the state constitution or the law of the state concerning or limiting the creation of indebtedness of the state and shall not constitute a multiple fiscal-year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4) of article X of the state constitution.    Interest paid under a financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (3)(a) of this section, including interest represented by the instruments, shall be exempt from Colorado income tax.    The state of Colorado, acting through the state treasurer and the governing board of the institutions of higher education, is authorized to enter into ancillary agreements and instruments as are deemed necessary or appropriate in connection with a financed purchase of an asset or certificate of participation agreement, including but not limited to deeds, ground leases, sub-leases, easements, or other instruments relating to the real property on which the facilities are located or an agreement entered into pursuant to subsection (5) of this section.       The provisions of section 24-30-202 (5)(b) shall not apply to a financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (3)(a) of this section or any ancillary agreement or instrument entered into pursuant to subsection (3)(b) of this section. The state controller or his or her designee shall waive any provision of the fiscal rules promulgated pursuant to section 24-30-202 (1) and (13) that the state controller deems to be incompatible or inapplicable with respect to said financed purchase of an asset or certificate of participation agreements or any such ancillary agreement or instrument.         A local government or the governing board of a state-supported institution of higher education may pay to the state treasurer an amount to assist the state in making payments on any financed purchase of an asset or certificate of participation agreement entered into pursuant to subsection (3)(a) of this section. State-supported institutions of higher education, including but not limited to the Auraria higher education center and its constituent institutions, are authorized to transfer money to the state treasurer pursuant to this subsection (4) for the projects for which the state treasurer executes a financed purchase of an asset or certificate of participation agreement pursuant to subsection (3) of this section without an appropriation from the general assembly. The state treasurer shall credit any money received pursuant to this subsection (4) to the higher education institutions financed purchase of an asset cash fund, referred to in this subsection (4) as the “fund”, which fund is hereby created in the state treasury. Except as provided in subsection (3)(a)(II) of this section, money in the fund is continuously appropriated to the state treasurer to make payments on financed purchase of an asset or certificate of participation agreements executed pursuant to subsection (3)(a) of this section. Any money in the fund not expended for the purpose of this section shall be invested by the state treasurer as provided by law. All interest and income derived from the investment and deposit of money in the fund shall be credited to the fund. Except as provided in subsection (4)(b) of this section, any unexpended and unencumbered money remaining in the fund at the end of a fiscal year shall remain in the fund and shall not be credited or transferred to the general fund or another fund.      Within thirty days of the state treasurer's receipt of the certificate of completion for the academic building on the Craig campus of Colorado Northwestern community college, the state treasurer shall transfer no more than two million one hundred thousand dollars of such institution's cash assistance payment to the Colorado community college system. (b) (I) Within thirty days of the state treasurer's receipt of the certificate of completion for the academic building on the Craig campus of Colorado Northwestern community college, the state treasurer shall transfer no more than two million one hundred thousand dollars of such institution's cash assistance payment to the Colorado community college system.    Within thirty days of the state treasurer's receipt of the certificate of completion for the science building addition and renovation at the Auraria higher education center, the state treasurer shall transfer no more than one million dollars to the Auraria higher education center.            Prior to executing a financed purchase of an asset or certificate of participation agreement pursuant to subsection (3) of this section, in order to protect against future interest rate increases, the state of Colorado, acting by and through the state treasurer and at the discretion of the state treasurer, may enter into an interest rate exchange agreement pursuant to article 59.3 of title 11. A financed purchase of an asset or certificate of participation agreement entered into pursuant to subsection (3) of this section shall be a proposed public security for the purposes of article 59.3 of title 11. Any payments made by the state under an agreement entered into pursuant to this subsection (5) shall be made solely from money made available to the state treasurer from the execution of a financed purchase of an asset or certificate of participation agreement or from money appropriated from the revenues fund or the higher education institutions financed purchase of an asset or certificate of participation cash fund created pursuant to subsection (4) of this section.    Any agreement entered into pursuant to this subsection (5) shall also provide that the obligations of the state shall not be deemed or construed as creating an indebtedness of the state within the meaning of any provision of the state constitution or the laws of the state of Colorado concerning or limiting the creation of indebtedness by the state of Colorado and shall not constitute a multiple fiscal-year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4) of article X of the state constitution.    Any money received by the state under an agreement entered into pursuant to this subsection (5) shall be used to make payments on financed purchase of an asset or certificate of participation agreements entered into pursuant to subsection (3) of this section or to pay the costs of the project for which a financed purchase of an asset or certificate of participation agreement was executed.        History. Source: L. 2008: Entire section added, p. 712, § 1, effective May 12. L. 2010: (3)(c) amended,(SB 10-003), ch. 391, p. 1848, § 22, effective June 9; (3)(b)(I) amended,(SB 10-122), ch. 64, p. 226, § 2, effective August 11. L. 2012: (3)(a) and (4) amended,(HB 12-1357), ch. 222, p. 951, § 2, effective May 24. L. 2016: (2)(a) amended,(HB 16-1229), ch. 84, p. 236, § 1, effective April 14. L. 2021: (1)(a), (1)(b)(I), (1)(b)(II), (1)(b)(IV), (1)(b)(V), (2), (3), (4)(a), (5)(a), and (5)(c) amended,(HB 21-1316), ch. 325, p. 2014, § 24, effective July 1.    Cross references:   For the legislative declaration in the 2010 act amending subsection (3)(c), see section 1 of chapter 391, Session Laws of Colorado 2010. For the legislative declaration in the 2012 act amending subsections (3)(a) and (4), see section 1 of chapter 222, Session Laws of Colorado 2012.