H*3669 Session 112 (1997-1998)
H*3669(Rat #0237, Act #0144 of 1997) General Bill, By R. Smith, Boan, H. Brown,
Cato, Cobb-Hunter, J.L.M. Cromer, J.G. Felder, Harrell, Harvin, Jennings, Riser,
Sharpe, Webb, Wilkins and Witherspoon
A BILL TO AMEND CHAPTER 119, TITLE 59, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO CLEMSON UNIVERSITY, BY ADDING ARTICLE 9, PROVIDING FOR CLEMSON
UNIVERSITY ATHLETIC FACILITIES REVENUE BONDS; AND TO AMEND SECTION 59-121-30,
RELATING TO ELECTIONS FOR CITADEL TRUSTEES, SO AS PROSPECTIVELY TO DELETE THE
AGE LIMIT AFTER WHICH PERSONS ARE INELIGIBLE TO BE ELECTED OR
REELECTED.-AMENDED TITLE
03/18/97 House Introduced and read first time HJ-4
03/18/97 House Referred to Committee on Ways and Means HJ-4
04/17/97 House Committee report: Favorable Ways and Means HJ-15
04/29/97 House Read second time HJ-24
04/30/97 House Read third time and sent to Senate HJ-16
05/01/97 Senate Introduced and read first time SJ-11
05/01/97 Senate Referred to Committee on Finance SJ-11
05/21/97 Senate Committee report: Favorable Finance SJ-27
05/22/97 Senate Read second time SJ-32
05/22/97 Senate Ordered to third reading with notice of
amendments SJ-32
06/04/97 Senate Amended SJ-111
06/04/97 Senate Read third time and returned to House with
amendments SJ-111
06/05/97 House Concurred in Senate amendment and enrolled HJ-3
06/09/97 Ratified R 237
06/13/97 Signed By Governor
06/13/97 Effective date 06/13/97
07/09/97 Copies available
07/09/97 Act No. 144
(A144, R237, H3669)
AN ACT TO AMEND CHAPTER 119, TITLE 59, CODE OF LAWS
OF SOUTH CAROLINA, 1976, RELATING TO CLEMSON
UNIVERSITY, BY ADDING ARTICLE 9, PROVIDING FOR
CLEMSON UNIVERSITY ATHLETIC FACILITIES REVENUE
BONDS; AND TO AMEND SECTION 59-121-30, RELATING TO
ELECTIONS FOR CITADEL TRUSTEES, SO AS PROSPECTIVELY
TO DELETE THE AGE LIMIT AFTER WHICH PERSONS ARE
INELIGIBLE TO BE ELECTED OR RE-ELECTED.
Be it enacted by the General Assembly of the State of South Carolina:
Clemson athletic facilities revenue bonds
SECTION 1. Chapter 119, Title 59 of the 1976 Code, is amended by
adding:
"Article 9
Athletic Facilities Revenue Bonds
Section 59-119-910. (A) The General Assembly finds that it is
desirable to provide continuing and general statutory authority for
Clemson University to incur debt for the purpose of, among other things,
acquiring, constructing, renovating, and equipping certain athletic
facilities, which debt is secured by a pledge of the revenues derived from
the operation of the athletic department of Clemson University and by the
proceeds of certain related admissions fees and special fees charged to
students enrolled at Clemson University. Clemson University has
demonstrated need for additional funds to provide for acquisition,
construction, renovation, and equipping of such facilities. These facilities
are needed to replace or renovate aging facilities and to provide additional
facilities all to the end that the educational environment at Clemson
University will be enhanced for the benefit of present and future students
at Clemson University.
(B) Consideration has been given to this need and to the methods of
funding it. It has been determined to be in the best interests of the people
of this State to authorize Clemson University to acquire, construct,
renovate, and equip additional such facilities and to incur indebtedness for
these purposes which is payable from the revenues derived from the
operation of these facilities and from related fees to the extent and under
the conditions provided for in this article.
(C) Heretofore, pursuant to Acts 466 of 1957, 905 of 1960, 1277 of
1970, 1653 of 1972, 1303 of 1974, 760 of 1976, and 193 and 194 of 1983,
the General Assembly has previously made provision for the issuance of
revenue bonds of Clemson University for the purpose of financing and
refinancing improvements to the football stadium on the campus of
Clemson University known as Memorial Stadium. By this article, the
General Assembly intends to amend and restate these acts for the purpose
of broadening the scope of athletic facilities on the campus of Clemson
University which may be financed or refinanced from the proceeds of
bonds which are payable from revenues of the athletic department of
Clemson University and related fees.
Section 59-119-920. As used in this article:
(1) 'Admissions fee' means the specially designated admissions fee or
charge which may, in addition to other charges, be imposed by the
trustees upon persons admitted to any event held at an athletic facility, for
the purpose of providing funds to assist in the repayment of bonds.
(2) 'Athletic department' means the athletic department of Clemson.
(3) 'Athletic facilities' means all facilities designated by the trustees
as intercollegiate athletic facilities now owned or hereafter acquired by
Clemson.
(4) 'Bond' or 'bonds' means any note, bond, installment contract, or
other evidence of indebtedness issued pursuant to this article.
(5) 'Bond reserve fund' means the special fund which may be
established by the trustees pursuant to this article, which must be in the
custody of the State Treasurer or its corporate trust designee and which is
primarily established for the purpose of providing a reserve with which
to meet the payment of the principal of and interest on bonds in the event
that payments otherwise required from the debt service fund are
insufficient to meet the payment of the principal and interest as and when
they become due and payable.
(6) 'Clemson' means Clemson University.
(7) 'Debt service fund' means the fund established by this article for
the payment of principal of and interest on bonds, which must be in the
custody of the State Treasurer or its corporate trust designee.
(8) 'Net revenues' means all revenues remaining after payment of the
operating and maintenance expenses of the athletic department but before
provision is made for depreciation, amortization, nonmandatory transfers,
and interest expenses of the athletic department for a given fiscal year.
(9) 'Prior acts' means Acts 446 of 1957, 905 of 1960, 1277 of 1970,
1653 of 1972, 1303 of 1974, 760 of 1976, and 193 and 194 of 1983.
(10) 'Revenues' means all revenues or other income, including
investment income, received by the athletic department from the operation
of the athletic department and the athletic facilities, and all gifts, bequests,
contributions, and donations received by the trustees or Clemson from any
persons, including from any athletic booster organization, for use in
connection with the operations of the athletic department, plus any other
unrestricted revenues of the athletic department not otherwise pledged that
may be made applicable by the trustees to the payment of the principal
and interest of the bonds, including such revenues which may fall into the
category of nonmandatory transfers as such term is used in generally
accepted accounting principles, but excluding:
(i) gifts, bequests, contributions, and donations restricted to a
particular purpose inconsistent with their use for the payment of the
principal, premium, or interest on any obligations of the trustees or
Clemson;
(ii) the proceeds of any borrowings;
(iii) state appropriations of any sort; and
(iv) revenues, income, receipts, and money received by the trustees
or Clemson for purposes other than those related to the athletic
department.
(11) 'Special student fee' means the fee authorized by this article to be
established by the trustees and which may be imposed upon persons in
attendance at any academic session of Clemson in order to provide funds
to assist in the repayment of bonds.
(12) 'State board' means the State Budget and Control Board.
(13) 'Trustees' means the board of trustees of Clemson or any successor
body.
Section 59-119-930. The trustees are authorized to acquire, construct,
and equip additional athletic facilities and to improve, renovate, and equip
existing athletic facilities to the extent they shall determine to be
necessary, and the proceeds of bonds authorized by this article are made
available for that purpose. The trustees also are authorized to refund
bonds that may from time to time be outstanding pursuant to this article
by exchange or otherwise. A portion of the proceeds of bonds issued for
any of the above purposes also may be used to fund, establish, or
replenish any bond reserve fund, to pay interest on the bonds as provided
in Section 59-119-1040(1), or to pay costs of issuance of the bonds or of
any credit enhancement for the bonds as may be deemed necessary by the
trustees.
Section 59-119-940. Upon receiving the approval of the state board
and upon review by the Joint Bond Review Committee, the trustees may
from time to time borrow such sums as necessary to accomplish the
purpose of this article and to evidence such borrowings by bonds issued
pursuant to this article in such aggregate principal amount as they
determine, except that other provisions of this article to the contrary
notwithstanding, there must not be outstanding at any time bonds issued
pursuant to this article in such aggregate principal amount as they
determine, except that other provisions of this article to the contrary
notwithstanding, there must not be outstanding at any time bonds issued
pursuant to this article in excess of forty million dollars.
Section 59-119-950. Bonds issued pursuant to this article are payable
from the revenues or the net revenues as designated by the trustees, as
well as from proceeds of the admission fee and the special student fee.
Bonds issued pursuant to this article may be further secured by such
additional pledges of other revenues or fees of Clemson as Clemson may
be authorized to grant pursuant to other laws of this State. The trustees
may abandon the use of any portion of the athletic facilities or sell or
dispose of any portion of the athletic facilities upon the receipt of a
written recommendation by the chief financial officer of Clemson to the
effect that such action does not adversely affect the ability of Clemson to
discharge its obligations to the holders of bonds issued pursuant to this
article and upon such further conditions as prescribed in the resolution of
the trustees providing for the issuance of bonds.
Section 59-119-960. The faith and credit of the State must not be
pledged for the payment of the principal and interest of such bonds, and
there must be on the face of each bond a statement plainly worded to that
effect. Neither the trustees nor any other person signing the bonds is
personally liable therefor.
Section 59-119-970. In order to avail themselves of the authorizations
set forth in this article, the trustees shall from time to time adopt
resolutions providing for the issuance of bonds of Clemson, within the
limitations herein mentioned, which resolutions shall prescribe the tenor,
terms, and conditions of such bonds. Such bonds must be issued as serial
or term bonds, maturing in equal or unequal amounts, at such times and
on such occasions as the trustees determine. The last maturing bonds of
any issue must be expressed to mature not later than fifty years from their
date, and the first maturing bonds of any issue, issued pursuant to this
article, shall fall due within five years from their date. The bonds shall
bear such rates of interest, payable on such occasion, as the trustees shall
prescribe, and the bonds must be in such denominations, must be payable
in such medium of payment, and at such place as such resolutions
prescribe. All bonds may be issued with a provision permitting their
redemption on any interest payment date prior to their respective
maturities. Bonds made subject to redemption prior to their stated
maturities may contain a provision requiring the payment of a premium
for the privilege of exercising the right of redemption, in such amount or
amounts as the trustees shall prescribe in the resolutions authorizing their
issuance. All bonds that are subject to redemption shall contain a
statement to that effect on the face of each bond. The resolutions
authorizing their issuance shall contain provisions specifying the manner
of call for redemption and the notice of such call that must be given.
Section 59-119-980. The bonds authorized by this act and all interest
to become due thereon have the tax exempt status prescribed by Section
12-2-50.
Section 59-119-990. It is lawful for all executors, administrators,
guardians, and fiduciaries, all sinking fund commissions, the state board,
as trustee of the South Carolina Retirement System, and all other
governmental entities within the State to invest any monies in their hands
in such bonds.
Section 59-119-1000. The bonds and the coupons, if any, attached to
such bonds, must be executed manually or by facsimile in the name of
Clemson in such manner and by such persons as the trustees shall from
time to time determine, and the seal of Clemson must be affixed to, or
impressed, or reproduced on each bond. Any coupons attached to such
bonds must be authenticated by the facsimile signature of one or more of
the persons signing the bonds. Such bonds may, in the discretion of the
trustees, be registerable as to principal and interest on books kept therefor
by or on behalf of Clemson, including by a corporate registrar. The
delivery of the bonds so executed are valid notwithstanding changes in
officers or in the seal occurring after such execution. Notwithstanding the
foregoing, the bonds may, in the discretion of the trustees, be issued as
fully registered, noncertificated, book-entry securities.
Section 59-119-1010. The bonds may be disposed of in such manner
as the trustees shall determine, except that no privately negotiated sale
without public advertisement may be made without the prior approval of
the state board. If the trustees shall elect to sell the bonds at public sale,
at least one advertisement thereof shall appear in a newspaper of general
circulation in the State not less than seven days prior to the occasion fixed
for the opening of bids. The bonds may be sold at such discount or for
such premium as may be determined by the trustees or their designee as
being in the best interest of Clemson.
Section 59-119-1020. The proceeds of all bonds must be delivered
to the State Treasurer or its corporate trust designee and retained in a
special fund or funds and applied solely to the purposes for which such
bonds have been issued. Withdrawals from the fund must be made on the
order or requisition of the university and must be in such form as the State
Treasurer shall prescribe. The State Treasurer may make temporary
investments of funds derived from the proceeds of bonds in the manner
prescribed by law.
Section 59-119-1030. To the end that provisions be made for the
adequate payment of the principal of and interest on the bonds:
(1)(a) The trustees shall maintain in full force and effect any necessary
admission fees or special student fee on a basis and in such amounts as
will be sufficient, after taking into account net revenues and any other
funds pledged to the payment of the bonds as provided under Section
59-119-1040(4), to provide for the payment of the principal of and
interest on the bonds as the same mature and to provide the required
reserve therefor in any bond reserve fund. It is the duty of Clemson to
calculate the debt service requirements of the bonds not less frequently
than annually and, if required at such time, appropriate revisions of any
admission fees or special student fee must be made by the trustees if such
revisions are required, after taking into account net revenues for the year,
to make adequate provisions for the payment of the principal of and
interest on the bonds and the maintenance of any required reserve in a
bond reserve fund.
(b) The admissions fees and the special student fee, if any, shall
bear such nomenclature as the trustees shall prescribe. The special
student fee may, in the discretion of the trustees, be included as a part of
any other fee. The trustees shall account for the receipt from any
admissions fees and special student fee to the State Treasurer, for deposit
by the State Treasurer in the debt service fund.
(c) Notwithstanding any other provisions of this article, until the
earlier to occur of (i) May 1, 2000 or (ii) the earlier retirement or
defeasance of the $6,935,000 original principal amount Clemson
University Stadium Refunding Revenue Bonds, Series 1992, any
requirement under the prior acts for the trustees to impose an admissions
fee or a special student fee shall remain in full force and effect.
(2) The trustees shall cause to be established with the State Treasurer
or its corporate trust designee on or before the occasion of the delivery of
any bonds pursuant to this article, a debt service fund into which must be
deposited annually sufficient funds as provided in this article to meet the
payment of principal of and interest on the bonds for such year.
Section 59-119-1040. To the end that the payment of the principal of
and interest on the bonds authorized hereby are adequately secured, the
trustees are empowered in their discretion:
(1) To issue bonds in such amount, within the limitations herein
provided for, as the trustees consider necessary, it is lawful for the trustees
to use a portion of the principal proceeds derived from any sale of bonds,
except bonds issued to effect refunding of outstanding bonds, to meet the
payment of interest on such bonds for a period equal to the period of
construction or renovation of the athletic facilities to be financed with the
proceeds of such bonds, plus a period not exceeding six months, it being
recognized by the General Assembly, that until the athletic facilities to be
constructed or renovated with the proceeds of the bonds are completed,
an undue burden may be imposed upon then existing revenues or other
sources of payment of the bonds.
(2) To impose admission fees and a special student fee upon such
basis and in such amounts as the trustees shall determine.
(3) To pledge the revenues or the net revenues as designated by the
trustees, and the proceeds of any admissions fees and special student fee,
as security for the payment of such bonds, whether then or thereafter to
be existing. However, any surplus of such revenues or net revenues
available after the payment of costs of operation and maintenance of the
athletic department and of athletic facilities and of debt service on such
bonds, and the establishment of any debt service reserve obligation in a
bond reserve fund under the proceedings providing for the issuance of
such bonds, may be placed in a contingency and improvement fund for
athletic facilities in order to restore depreciated or obsolete athletic
facilities, to make improvements to such athletic facilities, to defray the
cost of unforeseen contingencies with regard to such athletic facilities, to
prevent defaults under such bonds or to redeem any of such bonds, or may
be reflected in the opening balance of the operating fund of the
department for the next succeeding fiscal year and used for any purpose
approved by the trustees.
(4) To further secure the bonds with a pledge of any additional
revenues or fees of Clemson as may be authorized under other laws of the
State.
(5) To specify and limit the athletic facilities which may be made use
of free of charge.
(6) To covenant to establish and maintain such system of rules as will
ensure the continuous and effective use of the athletic facilities.
(7) To covenant that an adequate schedule of rates and charges for
attendance at events held at any athletic facilities will be maintained, and
that net athletic revenues plus any proceeds of the admissions fees and the
special student fee will be sufficient, to:
(a) Pay the cost of operating and maintaining the athletic
department and the athletic facilities, including the cost of fire, extended
coverage and use, and occupancy insurance;
(b) Pay the principal and interest of the bonds as they respectively
become due;
(c) Provide any necessary debt service coverage ratios;
(d) Create and maintain any bond reserve fund established to meet
the payment of principal and interest of any of the bonds; and
(e) Create and at all times maintain an adequate reserve for
contingencies and for major repairs and replacement of athletic facilities.
(8) To covenant against the mortgaging or disposing of the athletic
facilities and against permitting or suffering any lien to be created
thereon, equal or superior to any lien created thereon for the benefit of the
holders of such bonds. However, the trustees are empowered to sell or
dispose of athletic facilities as provided in Section 59-119-950, and to
reserve the right, under such terms as they shall prescribe, to issue
additional bonds on a parity with, or subordinate to, the bonds authorized
by this article.
(9) To covenant as to the use of the proceeds derived from the sale of
any bonds issued pursuant to this article.
(10) To provide for the terms, form, registration, exchange, execution,
and authentication of bonds, and for the replacement of lost, destroyed, or
mutilated bonds.
(11) To make covenants with respect to the operation of the athletic
department and the athletic facilities.
(12) To covenant that all revenues or net revenues pledged for the
payment of the bonds must be duly segregated into special funds and that
such funds will be used solely for the purposes for which they are
intended and for no other purpose.
(13) To covenant for the mandatory redemption of bonds on such terms
and conditions as the resolutions authorizing such bonds shall prescribe.
(14) To provide for early defeasance of bonds through the
establishment of special escrow accounts maintained by a corporate
trustee, which may be the State Treasurer, of cash, or United States
Government obligations, or obligations of agencies thereof, which
escrows may be funded with proceeds of bonds issued hereunder or
revenues or net revenues or other funds available to Clemson.
(15) To prescribe the procedure, if any, by which the terms of the
contract with the bondholders may be amended, the number of bonds
whose holders must consent thereto, and the manner in which consent
shall be given.
(16) To covenant as to the maintenance of the athletic facilities, the
insurance to be carried thereon, and the use and disposition of proceeds
from any insurance policy.
(17) To prescribe the events of default and the terms and conditions
upon which all or any bonds become or may be declared due before
maturity, and the terms and conditions upon which such declaration and
its consequences may be waived.
(18) To impose a statutory lien upon any athletic facilities as security
for the payment of the bonds. The lien shall extend to such athletic
facilities, to their appurtenances and extensions, to their additions,
improvements, and enlargements to the extent specified in the resolutions
and shall inure to the benefit of the holders of the bonds secured thereby.
These athletic facilities shall remain subject to such statutory lien until the
payment in full of the principal and interest of the bonds. Any holder of
any of the bonds, or any of the coupons representing interest thereon,
may, either at law or in equity, by suit, action, mandamus, or other
proceedings, protect and enforce the statutory lien, and may, by suit,
action, mandamus, or other proceedings enforce and compel performance
of all duties of the trustees, including the fixing of sufficient rates, the
proper segregation of the revenues, and the proper application thereof.
However, the statutory lien must not be construed to give any such bond
or coupon holder authority to compel the sale of any of the athletic
facilities or any part thereof.
(19) To covenant that if there be any default in the payment of the
principal of or interest upon any of the bonds, any court having
jurisdiction in any proper action may appoint a receiver to administer and
operate the athletic department, with power to fix rates and charges for
athletic facilities and other activities of the athletic department, and to
apply the income and revenues of the athletic department to the payment
of such bonds and the interest thereon.
(20) To establish on or before the occasion of the delivery of any bonds
issued pursuant to this article a bond reserve fund and to cause the same
to be maintained by the State Treasurer or its corporate trustee designee,
and to that end, the trustees are empowered to utilize any monies available
for the funding of any such bond reserve fund, including revenues or net
revenues previously accumulated prior to the issuance of bonds or
available proceeds of the admissions fee or the special student fee. In the
discretion of the trustees, in lieu of cash, such a bond reserve fund may be
funded with a surety bond, insurance policy, letter of credit, line of credit,
or similar guarantee. At the discretion of the trustees, Clemson may
purchase an insurance policy ensuring payment of both principal and
interest on any issuance of bonds hereunder.
(21) With the consent of the State Treasurer, to appoint a corporate
trustee and a paying agent for the bondholders, either of whom may be the
State Treasurer, and to prescribe the manner in which revenues or net
revenues, as well as proceeds of admissions fees and special student fees
shall be utilized and disposed of. Any such corporate trustee shall serve
in a fiduciary capacity as trustee for the bondholders under the resolutions
of the trustees authorizing the issuance of bonds.
Section 59-119-1050. The authorizations granted by this act shall
remain of full force and effect until they shall be rescinded by subsequent
enactment, and no time limit is set for the issuance of bonds pursuant to
this article."
Election of Citadel trustees
SECTION 2. Section 59-121-30 of the 1976 Code is amended to read:
"Section 59-121-30. The General Assembly shall hold an election
to fill vacancies occurring due to expiration of terms no earlier than the
first day of April of the year the term expires and as necessary to fill
unexpired terms which are caused by the death, resignation, or removal
of a trustee, except that vacancies of unexpired terms of members elected
by the Association of Citadel Men shall be filled in the same manner as
is provided for by Section 59-121-10. No elective member shall be elected
or re-elected either by the General Assembly or by the Association of
Citadel Men to fill any term of office the duration of which shall extend
beyond the member's seventy-fifth birthday. However, beginning with
the elections for members of the board occurring on or after July 1, 1997,
the seventy-fifth birthday limit no longer applies."
Time effective
SECTION 3. This act takes effect upon approval by the Governor.
Approved the 13th day of June, 1997. |