§ 22-43.7-110. Financial Assistance – Grants – Financed Purchase of an Asset Agreements

1. The board may provide financial assistance for those public school facility capital construction projects for which the state board has authorized the provision of financial assistance pursuant to section 22-43.7-109 (7) by providing matching grants from the assistance fund.
2. Subject to the following requirements and limitations, the board may also instruct the state treasurer to enter into financed purchase of an asset or certificate of participation agreements on behalf of the state to provide financial assistance to applicants by financing public school facility capital construction projects for which the state board has recommended and the capital development committee has authorized the provision of financial assistance that involves a financed purchase of an asset or certificate of participation agreement pursuant to section 22-43.7-109 (7):
   1. Subject to the limitation specified in subsection (2)(b) of this section, the maximum total amount of annual payments payable by the state during any fiscal year under the terms of all outstanding financed purchase of an asset or certificate of participation agreements entered into by the state treasurer as instructed by the board pursuant to this subsection (2) is:
      1. Twenty million dollars for the 2008-09 fiscal year;
      2. Forty million dollars for the 2009-10 fiscal year;
      3. Sixty million dollars for the 2010-11 fiscal year;
      4. Eighty million dollars for the 2011-12 fiscal year and for each fiscal year thereafter through the 2015-16 fiscal year;
      5. Ninety million dollars for the 2016-17 fiscal year;
      6. One hundred million dollars for the 2017-18 and 2018-19 fiscal years;
      7. One hundred five million dollars for the 2019-20 fiscal year; and
      8. One hundred twenty-five million dollars for the 2020-21 fiscal year and for each fiscal year thereafter.
   2. 1. The state treasurer may enter into financed purchase of an asset or certificate of participation agreements for which the aggregate annual payments of principal or interest for any fiscal year exceed one-half of the maximum total amount of annual payments permitted for the fiscal year pursuant to subsection (2)(a) of this section only if the aggregate amount of matching money expected to be credited to the assistance fund pursuant to subsection (2)(c) of this section and section 22-43.7-104 (2)(b)(IV) and any interest or income derived from the deposit and investment of the matching money is at least equal to the annual payments of principal and interest that exceed one-half of said maximum total amount.
      2. For purposes of subparagraph (I) of this paragraph (b), in calculating one-half the maximum total amount of annual lease payments permitted for the fiscal year pursuant to paragraph (a) of this subsection (2), the state treasurer shall not include any amount of annual lease payments of principal or interest that are attributable to loans of matching moneys for eligible charter schools that the board approves pursuant to section 22-43.7-110.5.
   3. Whenever the state treasurer enters into a financed purchase of an asset or certificate of participation agreement on behalf of the state pursuant to this subsection (2) to finance a public school facility, the board shall enter into a sub-financed purchase of an asset or certificate of participation agreement for the facility on behalf of the state with the applicant that will use the facility. The sub-financed purchase of an asset or certificate of participation agreement shall require the applicant to perform for the state all duties of the state to maintain and operate the public school facility that are required by the financed purchase of an asset or certificate of participation agreement and to make periodic rental payments to the state, which payments shall be credited to the assistance fund as matching money of the applicant. The sub-financed purchase of an asset or certificate of participation agreement shall also provide for the transfer of ownership of the public school facility from the state to the applicant upon the fulfillment of both the state’s obligations under the financed purchase of an asset or certificate of participation agreement and the applicant’s obligations under the sub-financed purchase of an asset or certificate of participation agreement. A sub-financed purchase of an asset or certificate of participation agreement may provide that the legal obligation of an applicant to make periodic rental payments is subject to the annual appropriation of money for that purpose by the applicant if the absence of such a provision would create a district multiple-year fiscal obligation without voter approval in advance in violation of section 20 (4)(b) of article X of the state constitution.
   4. A financed purchase of an asset or certificate of participation agreement entered into by the state treasurer on behalf of the state pursuant to this subsection (2) shall provide that all payment obligations of the state under the agreement are subject to annual appropriation by the general assembly and that obligations 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 concerning or limiting the creation of indebtedness by the state.
   5. A financed purchase of an asset or certificate of participation agreement entered into by the state treasurer on behalf of the state pursuant to this subsection (2) may contain such terms, provisions, and conditions as the state treasurer may deem appropriate. The provisions shall allow the state to receive title to the real and personal property that is the subject of the agreement on or prior to the expiration of the entire term of the agreement, including all optional renewal terms. Such a financed purchase of an asset or certificate of participation agreement may further provide for the issuance, distribution, and sale of instruments evidencing rights to receive rentals and other payments made and to be made under the agreement. Such 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 laws of the state concerning or limiting the creation of indebtedness by the state. Interest paid under a financed purchase of an asset or certificate of participation agreement, including interest represented by such instruments, shall be exempt from Colorado income tax.
   6. The board may only enter into a sub-financed purchase of an asset or certificate of participation agreement on behalf of the state pursuant to this subsection (2) if the state treasurer has reviewed the agreement and provided written authorization to the board to enter into the agreement.
   7. If the state treasurer deems it to be necessary or advisable, the state treasurer may enter into a financed purchase of an asset or certificate of participation agreement on behalf of the state for only a portion of a public school facility for which financial assistance is being provided or for all or a portion of a different public school facility or other property of a school district.
   8. Notwithstanding the authority of the board to instruct the state treasurer to enter into financed purchase of an asset or certificate of participation agreements on behalf of the state, in order to ensure that financed purchase of an asset or certificate of participation agreements are entered into under favorable financial market conditions, the state treasurer shall have sole discretion to determine the timing of the state treasurer’s entry into any financed purchase of an asset or certificate of participation agreement on behalf of the state pursuant to this subsection (2).

Source: L. 2008: Entire article R&RE, p. 1058, § 1, effective May 22. L. 2009: (2)(b) amended and (2)(g) and (2)(h) added, (SB 09-257), ch. 424, p. 2367, § 6, effective June 4. L. 2012: (2)(b) amended, (SB 12-121), ch. 177, p. 635, § 2, effective May 11. L. 2013: IP(2) amended, (SB 13-214), ch. 398, p. 2326, § 4, effective June 5. L. 2016: (2)(a)(III) and (2)(a)(IV) amended and (2)(a)(V) and (2)(a)(VI) added, (SB 16-072), ch. 180, p. 618, § 3, effective May 19. L. 2019: IP(2)(a), (2)(a)(V), and (2)(a)(VI) amended and (2)(a)(VII) and (2)(a)(VIII) added, (HB 19-1055), ch. 246, p. 2403, § 2, effective May 21. L. 2020: (2)(a)(VIII) amended, (HB 20-1418), ch. 197, p. 955, § 39, effective June 30. L. 2021: IP(2), IP(2)(a), (2)(b)(I), (2)(c) to (2)(h) amended, (HB 21-1316), ch. 325, p. 2009, § 18, effective July 1.

Cross references: For the legislative declaration in HB 20-1418, see section 1 of chapter 197, Session Laws of Colorado 2020.