(7) Special procedures.
Notwithstanding subs. (2)
, the following procedures apply to public debt contracted for any of the purposes under s. 18.04 (5)
or contracted for the purpose of making funds available for veterans housing loans:
The public debt may be sold at public or private sale.
The public debt may be exchanged publicly or privately in payment of or for the acquisition of other public debt.
The public debt may be sold for par value or at a premium or discount from par value.
The public debt may bear interest at variable or fixed rates as provided in or pursuant to the resolution authorizing the contracting of the public debt or, if the resolution so provides, may bear no interest, bear interest payable at any time or bear interest payable only at maturity or upon redemption prior to maturity.
Subject to pars. (am)
, at the time of, or in anticipation of, contracting public debt and at any time thereafter while the public debt is outstanding, the commission may enter into agreements and ancillary arrangements relating to the public debt, including liquidity facilities, remarketing or dealer agreements, letter of credit agreements, insurance policies, guaranty agreements, reimbursement agreements, indexing agreements, or interest exchange agreements. The commission shall determine all of the following, if applicable, with respect to any such agreement or ancillary arrangement:
For any payment to be received with respect to the agreement or ancillary arrangement, whether the payment will be deposited into the bond security and redemption fund or the capital improvement fund.
For any payment to be made with respect to the agreement or ancillary arrangement, whether the payment will be made from the bond security and redemption fund or the capital improvement fund and the timing of any transfer of funds.
With respect to any interest exchange agreement or agreements specified in par. (a)
, all of the following shall apply:
The commission shall contract with an independent financial consulting firm to determine if the terms and conditions of the agreement reflect a fair market value, as of the proposed date of the execution of the agreement.
The interest exchange agreement must identify by maturity, bond issue, or bond purpose the debt or obligation to which the agreement is related. The determination of the commission included in an interest exchange agreement that such agreement relates to a debt or obligation shall be conclusive.
The resolution authorizing the commission to enter into any interest exchange agreement shall require that the terms and conditions of the agreement reflect a fair market value as of the date of execution of the agreement, as reflected by the determination of the independent financial consulting firm under subd. 1.
, and shall establish guidelines for any such agreement, including the following:
The conditions under which the commission may enter into the agreements.
The aspects of risk exposure associated with the agreements.
The standards for the procurement of, and the setting aside of reserves, if any, in connection with, the agreements.
The provisions, if any, for collateralization or other requirements for securing any counterparty's obligations under the agreements.
A system for financial monitoring and periodic assessment of the agreements.
Subject to subd. 2.
, the terms and conditions of an interest exchange agreement under par. (a)
shall not be structured so that, as of the trade date of the agreement, both of the following are reasonably expected to occur:
The aggregate expected debt service and net exchange payments relating to the agreement during the fiscal year in which the trade date occurs will be less than the aggregate expected debt service and net exchange payments relating to the agreement that would be payable during that fiscal year if the agreement is not executed.
The aggregate expected debt service and net exchange payments relating to the agreement in subsequent fiscal years will be greater than the aggregate expected debt service and net exchange payments relating to the agreement that would be payable in those fiscal years if the agreement is not executed.
2. Subdivision 1.
shall not apply if either of the following occurs:
The commission receives a determination by the independent financial consulting firm under par. (am) 1.
that the terms and conditions of the agreement reflect payments by the state that represent on-market rates as of the trade date for the particular type of agreement.
The commission provides written notice to the joint committee on finance of its intention to enter into an agreement that is reasonably expected to satisfy subd. 1.
, and the joint committee on finance either approves or disapproves, in writing, the commission's entering into the agreement within 14 days of receiving the written notice from the commission.
This paragraph shall not limit the liability of the state under an agreement if actual contracted net exchange payments in any fiscal year are less than or exceed original expectations.
The commission may delegate to other persons the authority and responsibility to take actions necessary and appropriate to implement agreements and ancillary arrangements under pars. (a)
Any public debt may include public debt contracted to fund interest, accrued or to accrue, on the public debt.
Semiannually, during any year in which the state is a party to an agreement entered into pursuant to par. (a) (intro.)
, the department of administration shall submit a report to the commission and to the cochairpersons of the joint committee on finance listing all such agreements. The report shall include all of the following:
A description of each agreement, including a summary of its terms and conditions, rates, maturity, and the estimated market value of each agreement.
An accounting of amounts that were required to be paid and received on each agreement.
Any credit enhancement, liquidity facility, or reserves, including an accounting of the costs and expenses incurred by the state.
A description of the counterparty to each agreement.
A description of the counterparty risk, the termination risk, and other risks associated with each agreement.
(9) Clean water fund program bonds.
Notwithstanding sub. (4)
, the sale of bonds under this subchapter to provide revenue for the clean water fund program may be a private sale to the environmental improvement fund under s. 25.43
, if the bonds sold are held or owned by the environmental improvement fund, or a public sale, as provided in the authorizing resolution.
Form and content of evidence of indebtedness. 18.07(1)(1)
Any provision of s. 403.104
to the contrary notwithstanding, every evidence of indebtedness and every interest coupon appurtenant thereto is declared to be a negotiable instrument.
Every loan agreement entered into pursuant to s. 18.06 (2)
and every evidence of indebtedness given under such a loan agreement shall be executed in the name of and for the state by the secretary of the commission. Every other evidence of indebtedness shall be executed in the name of and for the state by the governor and by the secretary of administration and shall be sealed with the great seal of the state or a facsimile thereof of any size. The facsimile signature of either the governor or secretary of administration or both may be imprinted in lieu of the manual signature of such officer, as the commission directs, if approved by such officer. Evidence of indebtedness bearing the manual or facsimile signature of a person in office at the time such signature was signed or imprinted shall be fully valid notwithstanding that before or after the delivery thereof such person ceased to hold such office.
Every evidence of indebtedness shall be dated not later than the date issued, shall contain a reference by date to the appropriate authorizing resolution or resolutions and shall be in accordance therewith and, if issued for any one or more of the purposes described in s. 18.04 (1)
, shall so state.
An evidence of indebtedness and any interest coupon appurtenant thereto shall be in such form and contain such statements or terms, not in conflict with law or with the appropriate authorizing resolution or resolutions, as the commission directs.
Capital improvement fund. 18.08(1)(a)(a)
All moneys resulting from the contracting of public debt or any payment to be received with respect to any agreement or ancillary arrangement entered into under s. 18.06 (8) (a)
with respect to any such public debt shall be credited to a separate and distinct fund, established in the state treasury, designated as the capital improvement fund, except that:
Such moneys which represent accrued interest on bonds issued, or are for purposes of funding or refunding bonds pursuant to s. 18.06 (5)
, shall be credited to one or more of the sinking funds of the bond security and redemption fund or to the state building trust fund.
Any such moneys that represent premium or any payments received pursuant to any agreement or ancillary arrangement entered into under s. 18.06 (8) (a)
with respect to any such public debt may be credited to one or more of the sinking funds of the bond security and redemption fund or to the capital improvement fund, as determined by the commission.
Moneys within the capital improvement fund shall be segregated into separate and distinct accounts according to the program purposes defined under ch. 20
for which public debt has been authorized by the legislature.
The capital improvement fund may be expended, pursuant to appropriations, only for the purposes and in the amounts for which the public debts have been contracted, for the payment of principal and interest on loans or on notes, for the payment due, if any, under an agreement or ancillary arrangement entered into under s. 18.06 (8) (a)
with respect to any such public debt, for the purposes identified under s. 20.867 (2) (v)
and (4) (q)
, and for expenses incurred in contracting public debt.
Moneys of the capital improvement fund may be commingled only for the purpose of investment with other public funds, but they shall be invested only as provided in s. 18.04 (6)
or 25.17 (3) (b)
. All such investments shall be the exclusive property of the fund and all earnings on or income from such investments shall be credited to the fund and shall, subject to subs. (5)
, become available for any of the purposes under sub. (2)
. Before October 1, 1983, earnings from that portion created by self-amortizing projects may be transferred by resolution of the commission to the bond security and redemption fund to be used as provided in s. 18.09 (4)
If at any time it appears that there will not be on hand in the capital improvement fund sufficient moneys for the payment of principal and interest on loans or on notes or for the payment due, if any, under an agreement or ancillary arrangement that has been entered into under s. 18.06 (8) (a)
with respect to any public debt and that has been determined to be payable from the capital improvement fund under s. 18.06 (8) (a) 2.
, the department of administration shall transfer to such fund, out of the appropriation made pursuant to s. 20.866
, a sum sufficient which, together with any available money on hand in such fund, is sufficient to make such payment.
Before October 31, 1983, there shall be transferred to the bond security and redemption fund the interest earnings accrued to the capital improvement fund before October 1, 1983 due to the investment of moneys from the contracting of public debt under s. 20.866 (2) (u)
. These funds shall be used for meeting periodic principal, interest and premiums due, if any, on principal repayment and interest payments required from the transportation fund on this public debt.
Before October 31, 1983, there shall be transferred to the bond security and redemption fund the interest earnings accrued to the capital improvement fund before October 1, 1983, due to the investment of moneys from the contracting of public debt under s. 20.866 (2) (tm)
. These funds shall be used for meeting periodic principal, interest and premiums due, if any, on principal repayment and interest payments required from the general fund on this public debt.
Bond security and redemption fund. 18.09(1)
When bonds are authorized, there shall be established in the state treasury a bond security and redemption fund separate and distinct from every other fund, which shall contain separate and distinct sinking funds for each particular bond issue.
Each sinking fund shall be expended, and all moneys from time to time on hand therein are irrevocably appropriated, in sums sufficient, only for the payment of principal and interest on the bonds giving rise to it, premium, if any, due upon redemption of any such bonds, and payment due, if any, under an agreement or ancillary arrangement that has been entered into under s. 18.06 (8) (a)
with respect to any such bonds and that has been determined to be payable from the bond security and redemption fund under s. 18.06 (8) (a) 2.
One year after interest has ceased to accrue on all of the bonds giving rise to a sinking fund, all moneys on hand in such sinking fund shall be paid over and transferred to the state building trust fund and the sinking fund shall be closed. An amount equal to the aggregate face value of all outstanding bonds and the accrued interest thereon for which no sinking fund exists shall be maintained in the state building trust fund applicable exclusively to the payment of such bonds and interest.
Moneys of the bond security and redemption fund may be commingled only for the purpose of investment with other public funds, and they may be invested only as provided in s. 18.04 (6)
or 25.17 (3) (dr)
. All such investments shall be the exclusive property of such fund and all earnings on or income from such investments plus any transfers from the capital improvement fund under s. 18.08 (3)
shall be distributed to the respective sinking funds by the department of administration for use in meeting periodic principal and interest payments on bonds issued.
There shall be transferred to each sinking fund a sum sufficient for the payment of the principal, interest and premium due, if any, on the bonds giving rise to it as the same falls due. Such transfers shall be so timed that there is at all times on hand in the sinking fund an amount not less than the aggregate amount of principal, interest and premium, if any, to be paid out of it during the ensuing 15 days. The amount of any transfer scheduled to be made to the sinking fund from an escrow account established under a refunding escrow agreement on or before the due date of any payment of principal, interest or premium shall be treated as an amount on hand in the sinking fund as of the 16th day before the due date or as of the 46th day before the due date if operating notes are outstanding. Notwithstanding the foregoing, no further such transfer need be made after there are on hand in the sinking fund from any source assets sufficient to pay the aggregate face value of all of the bonds giving rise to it outstanding, the amount of any premium payable on such payment and the amount of interest to accrue on such bonds until payment.
The terms of a statute in effect at the time of a bond issue providing for specific transfers of funds to a sinking fund are a part of the bond obligation that cannot be changed by retroactive application of an amendment to that statute. 61 Atty. Gen. 93.
Other fiscal and administrative regulations. 18.10(1)(1)
After adoption of an authorizing resolution for a purpose which is to be accomplished wholly or in part through performance of an executory contract by some other contracting party, such contract may be entered into prior to the contracting of the debt authorized by such resolution with like effect as if the funds necessary for payments on the contract were already available. In such cases the debt authorized by such resolution shall be deemed to have been contracted pursuant to such resolution in the amount necessary to make such payments on the date such contract is entered into and the authority of such resolution shall promptly thereafter be exercised.
(2) Lawful money.
All money borrowed by the state shall be lawful money of the United States and all public debt shall be payable in such money.
(3) Management of funds and records.
The capital improvement fund and the bond security and redemption fund shall be managed as provided by law for other state funds. The department of administration shall maintain full and correct records of each fund. The legislative audit bureau shall audit each such fund as of January 1 of each year reconciling all transactions and showing the fair market value of all property on hand.
(4) Debt held by state.
All evidence of indebtedness owned or held by any state fund shall be deemed to be outstanding in all respects and the agency having such fund under its control shall have the same rights with respect to such evidence of indebtedness as a private party, but if any sinking fund acquires bonds which gave rise to such fund, such bonds shall be deemed paid for all purposes and no longer outstanding and shall be canceled as provided in sub. (11)
. All evidence of indebtedness owned by any state fund shall be registered to the fullest extent registrable.
The department of administration shall act as registrar for evidences of indebtedness registrable as to principal or interest or both. No transfer of a registered evidence of indebtedness is valid unless made on the register maintained by the department of administration for that purpose, and the state shall be entitled to treat the registered owner as the owner of such instrument for all purposes. Payments of principal and interest, when registered as to interest, of registered instruments shall be by electronic funds transfer, check, share draft or other draft to the registered owner at the owner's address as it appears on the register, unless the commission has otherwise provided. Information in the register relating to the owners of evidence of indebtedness is not available for inspection and copying under s. 19.35 (1)
. The commission may make such other provisions respecting registration as it deems necessary or useful. The department of administration may enter into a contract for the performance of any of his or her functions under this subsection and sub. (7)
(6) Replacement of instruments.
If any bond or note becomes mutilated or is destroyed, lost or stolen, the commission shall execute and deliver a new bond or note of like date of issue, maturity date, principal amount and interest rate per year as the bond or note so mutilated, destroyed, lost or stolen, in exchange and substitution for such mutilated bond or note or in lieu of and substitution for the bond or note destroyed, lost or stolen, upon filing with the commission evidence satisfactory to the commission that such bond or note has been destroyed, lost or stolen and proof of ownership thereof, and upon furnishing the commission with indemnity satisfactory to it and complying with such other reasonable rules as the commission promulgates and paying such expenses as the commission may incur. The bonds or notes so surrendered to the commission shall be canceled by it.
(7) Record of instruments.
The department of administration or the department's agent shall maintain records containing a full and correct description of each evidence of indebtedness issued, identifying it and showing its date, issue, amount, interest rate, payment dates, payments made, registration, destruction and every other relevant transaction.
(8) Trustees and fiscal agents.
The commission may appoint one or more trustees and fiscal agents for each issue of bonds or notes. The secretary of administration may be denominated the trustee and the sole fiscal agent or a cofiscal agent for any issue of bonds or notes. Every other such fiscal agent shall be an incorporated bank or trust company authorized by the laws of the United States or of the state in which it is located to do a banking or trust company business. There may be deposited with a trustee, in a special account administered as provided in this chapter, moneys to be used only for the purposes expressly provided in a resolution authorizing the issuance of debt or an agreement between the commission and the trustee. The commission may make such other provisions respecting trustees and fiscal agents as it deems necessary or useful and may enter into a contract with any trustee or fiscal agent containing such terms, including compensation, and conditions in regard to the trustee or fiscal agent as it deems necessary or useful.
The commission may authorize debt having any provisions for prepayment deemed necessary or useful, including the payment of any premium.
(10) Debt retirement.
Interest shall cease to accrue on public debt on the date that such debt becomes due for payment if said payment is made or duly provided for. On that date, that public debt is no longer outstanding. If any holder of any public debt, including any interest pertaining to public debt and any premium, fails to present that public debt for payment, the unpaid unclaimed moneys provided for the payment of that public debt shall be administered under ch. 177
(11) Cancellation of instruments.
Unless otherwise directed by the commission, every evidence of indebtedness and interest coupon paid or otherwise retired shall be marked "canceled" and shall be destroyed by the department of administration or destroyed by a fiscal agent appointed under sub. (8)
who shall certify that destruction to the department of administration.
(12) Procurement of services.
The commission may enter into a contract with any firm or individual engaged in financial services for the performance of any of its duties under this chapter, using selection and procurement procedures established by the commission. That contract is not subject to s. 16.705
Pledge of full faith.
The full faith, credit and taxing power of this state are irrevocably pledged to the payment of the principal, interest and premium due, if any, on all public debt. There is irrevocably appropriated through s. 20.866
, as a first charge upon all revenues of this state, a sum sufficient for the payment of the installments of principal, interest and premium due, if any, on all public debt as the same falls due.
Suits against the state. 18.13(1)
This section and ss. 18.14
shall govern all civil claims, suits, proceedings and actions respecting public debt notwithstanding any contrary provision of the statutes.
(2) To recover a debt.
If the state fails to pay any public debt in accordance with its terms, an action to compel such payment may be commenced against the state in accordance with s. 801.02
. The plaintiff shall serve an authenticated copy of the summons and complaint on the attorney general by leaving the copies at the attorney general's office in the capitol with an assistant or clerk. The place of trial of such an action shall be as provided in s. 801.50
(3) Judgment. Sections 16.53
shall not apply to such claims for payment of a public debt. If there is final judgment against the state in such action, it shall be paid as provided in s. 775.04
together with interest thereon at the rate of 10% per year from the date such payment was judged to have been due until the date of payment of such judgment.
Sup. Ct. Order, 67 Wis. 2d 575, 749 (1975); 1975 c. 218
; 1979 c. 32
s. 92 (5)
; 1979 c. 110
s. 60 (13)
; 1983 a. 228
; 1983 a. 410
; 1995 a. 27
; 1997 a. 27
Validation of debt. 18.14(1)(1)
Notwithstanding any defects, irregularities, lack of power or failure to comply with any statute or any act of the commission, all public debt contracted or attempted to be contracted after December 7, 1969 is declared to be valid and entitled to the pledge made by s. 18.12
; all instruments given after December 7, 1969 to evidence such debt are declared to be binding, legal, valid, enforceable and incontestable in accordance with their terms; and all proceedings taken and certifications and determinations made after December 7, 1969 to authorize, issue, sell, execute, deliver or enter into such debt or such instruments are validated, ratified, approved and confirmed.
A determination, legislative, judicial or administrative, for any reason, that the state may not spend the proceeds of contracted public debt, or that it has spent such proceeds for a purpose other than the stated purpose for which such public debt was contracted or for a purpose for which the state may not spend money, shall not affect the validity of such public debt nor the evidence of indebtedness therefor.
History: 1973 c. 90
s. 555m (2)
Diversion of funds, liability of officers for.
Any public officer or public employee, as defined in s. 939.22 (30)
, and the surety on the official bond of the officer or employee, or any other person participating in any direct or indirect impairment of the capital improvement fund or bond security and redemption fund, shall be liable in an action brought by the attorney general in the name of the state, or by any taxpayer of the state, or by the holder of any evidence of indebtedness payable in whole or in part, directly or indirectly, out of such fund, to restore to such fund all diversions therefrom.