Section 43-4-805 - Statewide bridge enterprise - creation - board - funds - powers and duties - legislative declaration - definitions(1) The general assembly hereby finds and declares that: (a) The completion of designated bridge projects, preventative maintenance bridge projects, and tunnel projects is essential to address increasing traffic congestion and delays, hazards, injuries, and fatalities;(b) Due to the limited availability of state and federal funding and the need to accomplish the financing, repair, reconstruction, and replacement of designated bridges; the completion of preventative maintenance bridge projects; and the completion of tunnel projects as promptly and efficiently as possible, it is necessary to create a statewide bridge and tunnel enterprise and to authorize the enterprise to:(I) Enter into agreements with the commission or the department to finance, repair, reconstruct, and replace designated bridges, complete preventative maintenance bridge projects, and complete tunnel projects in the state; and(II) Impose a bridge safety surcharge, a bridge and tunnel impact fee, and a bridge and tunnel retail delivery fee at rates reasonably calculated to defray the costs of completing designated bridge projects, preventative maintenance bridge projects, and tunnel projects and distribute the burden of defraying the costs in a manner based on the benefits received by persons paying the fees and using designated bridges and tunnels and receiving retail deliveries, receive and expend revenue generated by the surcharge and fees and other money, issue revenue bonds and other obligations, contract with the state, if required approvals are obtained, to receive one or more loans of money received by the state under the terms of one or more financed purchase of an asset or certificate of participation agreements authorized by this part 8, expend revenue generated by the surcharge to repay any such loan or loans received, and exercise other powers necessary and appropriate to carry out its purposes; and(c) The creation of a statewide bridge and tunnel enterprise is in the public interest and will promote the health, safety, and welfare of all Coloradans and visitors to the state by providing bridges and repairing, maintaining, and operating tunnels in a manner that incorporates the benefits of advanced engineering design, experience, and safety.(2)(a)(I) The scope of the existing statewide bridge enterprise created in this subsection (2)(a)(I) in 2009 is hereby expanded to include designated bridge projects, preventative maintenance bridge projects, and surface transportation infrastructure projects for tunnels, and the name of the expanded enterprise is the statewide bridge and tunnel enterprise. The bridge enterprise is and operates as a government-owned business within the department. The commission shall serve as the bridge enterprise board and shall, with the consent of the executive director, appoint a bridge enterprise director who shall possess such qualifications as may be established by the commission and the state personnel board. The bridge enterprise director shall oversee the discharge of all responsibilities of the bridge enterprise and shall serve at the pleasure of the bridge enterprise board.(II) The bridge enterprise and the bridge enterprise director are type 1 entities, as defined in section 24-1-105, and exercise their powers and perform their duties and functions under the department.(b) The business purpose of the bridge enterprise is to finance, repair, reconstruct, and replace any designated bridge in the state, complete preventative maintenance bridge projects, and complete tunnel projects and, as agreed upon by the enterprise and the commission, or the department to the extent authorized by the commission, to maintain the bridges it finances, repairs, reconstructs, and replaces. To allow the bridge enterprise to accomplish this purpose and fully exercise its powers and duties through the bridge enterprise board, the bridge enterprise may:(I) Impose a bridge safety surcharge, a bridge and tunnel impact fee, and a bridge and tunnel retail delivery fee as authorized by subsections (5)(g), (5)(g.5), and (5)(g.7) of this section;(II) Issue revenue bonds payable from the revenues and other available money of the bridge enterprise pledged for their payment as authorized in section 43-4-807; and(III) Contract with any other governmental or nongovernmental source of funding for loans or grants, including, but not limited to, one or more loans from the state of money received by the state pursuant to the terms of one or more financed purchase of an asset or certificate of participation agreements authorized pursuant to subsection (5)(r) of this section, to be used to support bridge enterprise functions.(c) The bridge enterprise constitutes an enterprise for purposes of section 20 of article X of the state constitution so long as it retains the authority to issue revenue bonds and receives less than ten percent of its total revenues in grants from all Colorado state and local governments combined. So long as it constitutes an enterprise pursuant to this subsection (2)(c), the bridge enterprise shall not be subject to any provisions of section 20 of article X of the state constitution. Consistent with the determination of the Colorado supreme court in Nicholl v. E-470 Public Highway Authority, 896 P.2d 859 (Colo. 1995), that the power to impose taxes is inconsistent with "enterprise" status under section 20 of article X of the state constitution, the general assembly finds and declares that a bridge safety surcharge, a bridge and tunnel impact fee, or a bridge and tunnel retail delivery fee imposed by the bridge enterprise as authorized by subsection (5)(g), (5)(g.5), or (5)(g.7) of this section is not a tax but is instead a fee imposed by the bridge enterprise to defray the cost of completing designated bridge projects, preventative maintenance bridge projects, and tunnel projects that the enterprise provides as a specific service to the persons upon whom the fee is imposed and at rates reasonably calculated based on the benefits received by such persons.(3)(a) The statewide bridge and tunnel enterprise special revenue fund, referred to in this part 8 as the "bridge special fund", is hereby created in the state treasury. All revenue received by the bridge enterprise, including, but not limited to, revenue from a bridge safety surcharge imposed as authorized by subsection (5)(g) of this section, revenue from a bridge and tunnel impact fee imposed as authorized by subsection (5)(g.5) of this section, revenue from a bridge and tunnel retail delivery fee imposed as authorized by subsection (5)(g.7) of this section, and any money loaned to the enterprise by the state pursuant to subsection (5)(r) of this section, shall be deposited into the bridge special fund. The bridge enterprise board may establish separate accounts within the bridge special fund as needed in connection with any specific designated bridge project, preventative maintenance bridge project, or tunnel project. The bridge enterprise also may deposit or permit others to deposit other money into the bridge special fund, but in no event may revenue from any tax otherwise available for general purposes be deposited into the bridge special fund. The state treasurer, after consulting with the bridge enterprise board, shall invest any money in the bridge special fund, including any surplus or reserves, but excluding any proceeds from the sale of bonds or earnings on such proceeds invested pursuant to section 43-4-807 (2), that are not needed for immediate use. Such money may be invested in the types of investments authorized in sections 24-36-109, 24-36-112, and 24-36-113.(b) All interest and income derived from the deposit and investment of money in the bridge special fund shall be credited to the bridge special fund and, if applicable, to the appropriate designated bridge project account, preventative maintenance bridge project account, or tunnel project account. Money in the bridge special fund shall be continuously appropriated to the bridge enterprise for the purposes set forth in this part 8. All money deposited in the bridge special fund shall remain in the bridge special fund for the purposes set forth in this part 8, and no part of the bridge special fund shall be used for any other purpose.(c) The bridge enterprise board has exclusive authority to budget and approve the expenditure of money in the bridge special fund. The bridge enterprise may expend money in the bridge special fund to pay for:(I) Bond or loan obligations;(II) The administration, planning, financing, repair, reconstruction, replacement, or maintenance of a designated bridge;(III) The completion of preventative maintenance bridge projects;(IV) The administration, planning, financing, repair, replacement, reconstruction, or maintenance of a fair-rated bridge if the repair, replacement, or reconstruction is included as part of a designated bridge project or other project involving the repair, replacement, or reconstruction of a designated bridge. A fair-rated bridge may be included in a designated bridge project or other project involving the repair, replacement, or reconstruction of a designated bridge if including the fair-rated bridge is an efficient use of the bridge enterprise's resources and will result in cost savings or schedule acceleration for a project that will improve safety.(V) The completion of tunnel projects;(VI) The acquisition of land to the extent required in connection with any designated bridge project; and(VII) The operating costs and expenses of the bridge enterprise.(4) The commission may transfer money from the state highway fund created in section 43-1-219 to the bridge enterprise for the purpose of defraying expenses incurred by the enterprise prior to the receipt of bond proceeds or revenue by the enterprise. The bridge enterprise may accept and expend any money so transferred, and, notwithstanding any state fiscal rule or generally accepted accounting principle that could otherwise be interpreted to require a contrary conclusion, such a transfer shall constitute a loan from the commission to the bridge enterprise and shall not be considered a grant for purposes of section 20 (2)(d) of article X of the state constitution. As the bridge enterprise receives sufficient revenues in excess of expenses, the enterprise shall reimburse the state highway fund for the principal amount of any loan from the state highway fund made by the commission plus interest at a rate set by the commission. Any money loaned from the state highway fund to the bridge enterprise pursuant to this section shall be deposited into a fund to be known as the statewide bridge and tunnel enterprise operating fund, which fund is hereby created, and shall not be deposited into the bridge special fund. Money from the bridge special fund may, however, be used to reimburse the state highway fund for the amount of any loan from the state highway fund or any interest thereon.(5) In addition to any other powers and duties specified in this section, the bridge enterprise board has the following powers and duties:(a) To supervise and advise the bridge enterprise director;(b) To adopt bylaws for the regulation of its affairs and the conduct of its business;(c) To issue revenue bonds, payable solely from the bridge special fund, for the purpose of paying the cost of financing, repairing, reconstructing, replacing, and maintaining designated bridges or fair-rated bridges if the fair-rated bridges are included as part of designated bridge projects or other projects pursuant to subsection (3)(c)(IV) of this section, completing preventative maintenance bridge projects, and completing tunnel projects;(d) To acquire, hold title to, and dispose of real and personal property as necessary in the exercise of its powers and performance of its duties;(e) To acquire, by purchase, gift, or grant, or, subject to the requirements of articles 1 to 7 of title 38, C.R.S., by condemnation, any and all rights-of-way, lands, buildings, moneys, or grounds necessary or convenient for its authorized purposes;(f) To enter into an agreement with the commission, or the department to the extent authorized by the commission, under which the bridge enterprise agrees to finance, repair, reconstruct, replace, and, if any given agreement so specifies, maintain a designated bridge or a fair-rated bridge if the fair-rated bridge is included as part of a designated bridge project or other project pursuant to subsection (3)(c)(IV) of this section;(g)(I) As necessary for the achievement of its business purpose, to impose a bridge safety surcharge, which, except as otherwise provided in subsections (5)(g)(III) and (5)(g)(VII) of this section, is imposed on and after July 1, 2009, for any registration period that commences on or after July 1, 2009, or on and after such later date as may be determined by the bridge enterprise, for any registration period that commences on or after the later date, upon the registration of any vehicle for which a registration fee must be paid pursuant to part 3 of article 3 of title 42 and is also imposed upon any item of special mobile machinery that is covered by a registration exempt certificate issued by the department of revenue in accordance with section 42-3-107 (16)(g). Except as otherwise provided in subsections (5)(g)(IV), (5)(g)(V), and (5)(g)(VI) of this section, the amount of the surcharge must not exceed: (A) Thirteen dollars for a motorcycle, as defined in section 42-1-102 (55); a trailer coach, as defined in section 42-1-102 (106) ; or any vehicle that weighs two thousand pounds or less;(B) Eighteen dollars for any vehicle that weighs more than two thousand pounds but not more than five thousand pounds;(C) Twenty-three dollars for any vehicle that weighs more than five thousand pounds but not more than ten thousand pounds;(D) Twenty-nine dollars for any vehicle that is a passenger bus or that weighs more than ten thousand pounds but not more than sixteen thousand pounds; and(E) Thirty-two dollars for any vehicle that weighs more than sixteen thousand pounds.(II) The bridge safety surcharge shall be imposed when a vehicle is registered as required by article 3 of title 42 or, for an item of special mobile machinery that is covered by a registration exempt certificate issued by the department of revenue in accordance with section 42-3-107 (16)(g), at the time set forth in section 42-3-107 (16)(g)(III). Each authorized agent shall remit to the department of revenue no less frequently than once a month, but otherwise at the time and in the manner required by the executive director of the department of revenue, all bridge safety surcharges collected by the authorized agent. The executive director of the department of revenue shall forward all bridge safety surcharges remitted by authorized agents plus any bridge safety surcharges collected directly by the department of revenue to the state treasurer, who shall credit the surcharges to the bridge special fund.(III) The bridge safety surcharge shall not be imposed on any rental vehicle on which a daily vehicle rental fee is imposed pursuant to section 43-4-804 (1)(b).(IV) The amount of the bridge safety surcharge imposed on any vehicle that is an item of Class A personal property, as defined in section 42-3-106 (2)(a), C.R.S., shall be the product of the amount of the surcharge imposed based on the weight of the vehicle pursuant to subparagraph (I) of this paragraph (g) and the percentage of the item's total apportioned registration apportioned to Colorado.(V) The maximum amount of the bridge safety surcharge that the bridge enterprise may impose pursuant to subparagraph (I) of this paragraph (g) for any annual vehicle registration period commencing during the 2009-10 fiscal year shall be one-half of the maximum amount of the surcharge specified in said subparagraph (I), and the maximum amount of the bridge safety surcharge that the bridge enterprise may impose pursuant to subparagraph (I) of this paragraph (g) for any vehicle registration period commencing during the 2010-11 fiscal year shall be seventy-five percent of the maximum amount of the surcharge specified in said subparagraph (I).(VI) The amount of any bridge safety surcharge imposed pursuant to this paragraph (g) shall be one-half of the amount of the surcharge imposed pursuant to subparagraph (I) of this paragraph (g) for any vehicle that is a truck or truck tractor that is owned by a farmer or rancher and is used commercially only:(A) To transport to market or place of storage raw agricultural products actually produced or livestock actually raised by the farmer or rancher in farming or ranching operations; or(B) To transport commodities or livestock purchased by the farmer or rancher for personal use in the farmer's or rancher's farming or ranching operations.(VII) The bridge safety surcharge is not imposed on any vehicle for which the department of revenue has issued a horseless carriage special license plate pursuant to section 42-12-301, C.R.S.(VIII) Each vehicle registration fee invoice shall list the bridge safety surcharge separately from all other vehicle registration fees or surcharges imposed.(g.5)(I) In furtherance of its business purpose, to impose a bridge and tunnel impact fee to be paid in the amount imposed by the bridge enterprise as authorized by subsection (5)(g.5)(II) or (5)(g.5)(III) of this section by each distributor of special fuel, as defined in section 43-4-217 (2)(c), that pays the excise tax imposed on special fuel pursuant to article 27 of title 39, at the same time and in the same manner as the excise tax and the road usage fee imposed pursuant to section 43-4-217 (3) and (4). For the purpose of minimizing compliance costs for distributors and administrative costs for the state, the department of revenue shall collect and administer the bridge and tunnel impact fee on behalf of the bridge enterprise in the same manner in which it collects and administers the excise tax and the road usage fee imposed pursuant to section 43-4-217 (3) and (4).(II) For each gallon of special fuel acquired, sold, offered for sale, or used in this state during state fiscal years 2022-23 through 2031-32, the bridge enterprise shall impose the bridge and tunnel impact fee in an amount of up to: (A) Two cents per gallon for state fiscal year 2022-23;(B) Three cents per gallon for state fiscal year 2023-24;(C) Four cents per gallon for state fiscal year 2024-25;(D) Five cents per gallon for state fiscal year 2025-26;(E) Six cents per gallon for state fiscal year 2026-27;(F) Seven cents per gallon for state fiscal year 2027-28; and(G) Eight cents per gallon for state fiscal years 2028-29 through 2031-32.(III) For each gallon of special fuel acquired, sold, offered for sale, or used in this state during state fiscal year 2032-33 or during any subsequent state fiscal year, the bridge enterprise shall impose the bridge and tunnel impact fee in an amount of up to the maximum amount of the fee for the prior state fiscal year adjusted for inflation. The bridge enterprise shall notify the department of revenue of the amount of the bridge and tunnel impact fee to be collected for each state fiscal year no later than March 15 of the calendar year in which the state fiscal year begins, and the department of revenue shall publish the amount no later than April 15 of the calendar year in which the state fiscal year begins.(IV) As used in this subsection (5)(g.5), "inflation" means the average annual percentage change in the United States department of transportation, federal highway administration, national highway construction cost index or its applicable predecessor or successor index for the five-year period ending on the last December 31 before a state fiscal year for which an adjustment to the bridge and tunnel impact fee imposed as authorized by this subsection (5)(g.5) is to be made begins.(g.7)(I) In furtherance of its business purpose, beginning in state fiscal year 2022-23, the bridge enterprise shall impose, and the department of revenue shall collect on behalf of the bridge enterprise, a bridge and tunnel retail delivery fee on each retail delivery. Each retailer who makes a retail delivery shall either collect and remit or elect to pay the bridge and tunnel retail delivery fee in the manner prescribed by the department in accordance with section 43-4-218 (6). For the purpose of minimizing compliance costs for retailers and administrative costs for the state, the department of revenue shall collect and administer the bridge and tunnel retail delivery fee on behalf of the bridge enterprise in the same manner in which it collects and administers the retail delivery fee imposed by section 43-4-218 (3).(II) For retail deliveries of tangible personal property purchased during state fiscal year 2022-23, the bridge enterprise shall impose the bridge and tunnel retail delivery fee in a maximum amount of two and seven-tenths cents.(III)(A) Except as otherwise provided in subsection (5)(g.7)(III)(B) of this section, for retail deliveries of tangible personal property purchased during state fiscal year 2023-24 or during any subsequent state fiscal year, the bridge enterprise shall impose the bridge and tunnel retail delivery fee in a maximum amount that is the maximum amount for the prior state fiscal year adjusted for inflation. The bridge enterprise shall notify the department of revenue of the amount of the bridge and tunnel retail delivery fee to be collected for retail deliveries of tangible personal property purchased during each state fiscal year no later than March 15 of the calendar year in which the state fiscal year begins, and the department of revenue shall publish the amount no later than April15 of the calendar year in which the state fiscal year begins.(B) The bridge enterprise is authorized to adjust the amount of the bridge and tunnel retail delivery fee for retail deliveries of tangible personal property purchased during a state fiscal year only if the department of revenue adjusts the amount of the retail delivery fee imposed by section 43-4-218 (3) for retail deliveries of tangible personal property purchased during the state fiscal year.(IV) As used in this subsection (5)(g.7): (A) "Inflation" means the average annual percentage change in the United States department of labor, bureau of labor statistics, consumer price index for Denver-Aurora-Lakewood for all items and all urban consumers, or its applicable predecessor or successor index, for the five years ending on the last December 31 before a state fiscal year for which an inflation adjustment to be made to the bridge and tunnel retail delivery fee imposed pursuant to this subsection (5)(g.7) begins.(B) "Retail delivery" has the same meaning as set forth in section 43-4-218 (2)(e).(C) "Retailer" has the same meaning as set forth in section 39-26-102 (8).(h) To make and enter into contracts or agreements with a private entity, to facilitate a public-private initiative pursuant to sections 43-1-1203 and 43-1-1204, including, but not limited to: (I) An agreement pursuant to which the bridge enterprise or the enterprise on behalf of the department operates, maintains, or provides services or property in connection with a designated bridge project, preventative maintenance bridge project, or tunnel project;(II) An agreement pursuant to which a private entity designs, develops, constructs, reconstructs, repairs, operates, or maintains all or any portion of a designated bridge project on behalf of the bridge enterprise; and(III) An agreement pursuant to which a private entity participates in or completes a preventative maintenance bridge project or tunnel project.(i) To make and to enter into all other contracts or agreements, including, but not limited to, design-build contracts, as defined in section 43-1-1402 (3), and intergovernmental agreements pursuant to section 29-1-203, C.R.S., that are necessary or incidental to the exercise of its powers and performance of its duties;(j) To employ or contract for the services of consulting engineers or other experts as are necessary in its judgment to carry out its powers and duties;(k) To prepare, or cause to be prepared, detailed plans, specifications, or estimates for any designated bridge project, preventative maintenance bridge project, or tunnel project within the state;(l) In connection with any designated bridge project, to acquire, finance, repair, reconstruct, replace, operate, and maintain any designated bridge within the state or any fair-rated bridge if the fair-rated bridge is included as part of a designated bridge project pursuant to subsection (3)(c)(IV) of this section;(m) To set and adopt, on an annual basis, a budget for the bridge enterprise;(n) To purchase, trade, exchange, acquire, buy, sell, lease, dispose of, or encumber real or personal property or any interest therein, including easements and rights-of-way, without restriction or limitation;(o) To enter into interest rate exchange agreements for bonds that have been issued in accordance with article 59.3 of title 11, C.R.S.;(p) Pursuant to section 24-1-107.5, to establish, create, and approve nonprofit entities and bonds issued by or on behalf of such nonprofit entities for the purpose of completing a designated bridge project, preventative maintenance bridge project, or tunnel project, to accept the assets of any such nonprofit entity, to obtain an option to acquire the assets of any such nonprofit entity by paying its bonds, to appoint or approve the appointment of members of the governing board of any such nonprofit entity, and to remove the members of the governing board of any such nonprofit entity for cause;(q) To transfer money, property, or other assets of the bridge enterprise to the department to the extent necessary to implement the financing of any designated bridge project, preventative maintenance bridge project, or tunnel project, or for any other purpose authorized in this part 8;(r)(I) To contract with the state to borrow money under the terms of one or more loan contracts entered into by the state and the bridge enterprise pursuant to subsection (5)(r)(III) of this section, to expend any money borrowed from the state for the purpose of completing designated bridge projects, preventative maintenance bridge projects, and tunnel projects and for any other authorized purpose that constitutes the construction, supervision, and maintenance of the public highways of this state for purposes of section 18 of article X of the state constitution, and to use revenue generated by any bridge safety surcharge, bridge and tunnel impact fee, or bridge and tunnel retail delivery fee imposed pursuant to subsection (5)(g), (5)(g.5), or (5)(g.7) of this section and any other legally available money of the bridge enterprise to repay the money borrowed and any other amounts payable under the terms of the loan contract.(II) If the bridge enterprise board seeks to enter into a contract to borrow money from the state as authorized by subsection (5)(r)(I) of this section, the board shall provide the governor with a list of designated bridge projects, preventative maintenance bridge projects, or tunnel projects to be financed with the borrowed money and a statement of both the total amount of the loan requested and the estimated amount of the loan that will be used to fund each project on the list. If the governor determines, in the governor's sole discretion, that lending money to the bridge enterprise as requested by the enterprise, or lending a lesser amount of money to the enterprise, is in the best interest of the state, the governor, after consultation with the executive director of the department of personnel and the state treasurer, shall prepare and provide to the state treasurer a list of state buildings or other state capital facilities that the state, acting by and through the state treasurer, may sell or lease and lease back pursuant to the terms of one or more financed purchase of an asset or certificate of participation agreements that the state, acting by and through the state treasurer, may enter into pursuant to subsection (5)(r)(III) of this section. When providing the list, the governor shall also specify to the state treasurer the maximum permitted principal amount of any loan that may be made to the bridge enterprise under the terms of any loan contract that the state, acting by and through the state treasurer, may enter into pursuant to subsection (5)(r)(III)(A) of this section.(III)(A) If the state treasurer receives a list from the governor pursuant to subsection (5)(r)(II) of this section, the state, acting by and through the state treasurer, may enter into a loan contract with the bridge enterprise and may raise the money needed to make a loan pursuant to the terms of the loan contract by selling or leasing one or more of the state buildings or other state capital facilities on the list. The state treasurer shall have sole discretion to enter into a loan contract on behalf of the state and to determine the amount of a loan; except that the principal amount of a loan shall not exceed the maximum amount specified by the governor pursuant to subsection (5)(r)(II) of this section. The state treasurer shall also have sole discretion to determine the timing of the entry of the state into any loan contract or the sale or lease of one or more state buildings or other state capital facilities. The loan contract shall require the bridge enterprise to pledge to the state all or a portion of the revenues of any bridge safety surcharge, bridge and tunnel impact fee, or bridge and tunnel retail delivery fee imposed pursuant to subsection (5)(g), (5)(g.5), or (5)(g.7) of this section for the repayment of the loan and may also require the bridge enterprise to pledge to the state any other legally available revenue of the bridge enterprise. Any loan contract entered into by the state, acting by and through the state treasurer, and the bridge enterprise pursuant to this subsection (5)(r)(III)(A) and any pledge of revenue by the bridge enterprise pursuant to such a loan contract shall be only for the benefit of, and enforceable only by, the state and the bridge enterprise. Specifically, but without limiting the generality of said limitation, no such loan contract or pledge shall be for the benefit of, or enforceable by, a seller under a financed purchase of an asset or certificate of participation agreement entered into pursuant to this subsection (5)(r)(III), an owner of any instrument evidencing rights to receive rentals or other payments made and to be made under such a financed purchase of an asset or certificate of participation agreement as authorized by subsection (5)(r)(IV)(B) of this section, a party to any ancillary agreement or instrument entered into pursuant to subsection (5)(r)(V) of this section, or a party to any interest rate exchange agreement entered into pursuant to subsection (5)(r)(VII)(A) of this section.(B) The state, acting by and through the state treasurer, may enter into one or more financed purchase of an asset or certificate of participation agreements with respect to the state buildings or other capital facilities sold or leased pursuant to subsection (5)(r)(III)(A) of this section with any for-profit or nonprofit corporation, trust, or commercial bank acting as a trustee, as the seller.(C) Any financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (5)(r)(III)(B) 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.(D) Any financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (5)(r)(III)(B) of this section shall also provide that the obligations of the state under the agreement 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 this state concerning or limiting the creation of indebtedness by 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)(a) of article X of the state constitution. If the state does not renew a financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (5)(r)(III)(B) of this section, the sole security available to the seller shall be the property that is the subject of the nonrenewed financed purchase of an asset or certificate of participation agreement.(IV)(A) Any financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (5)(r)(III)(B) of this section may contain such terms, provisions, and conditions as the state treasurer, acting on behalf of the state, 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 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 financed purchase of an asset or certificate of participation agreement upon payment of all amounts payable under the terms of the financed purchase of an asset or certificate of participation agreement and any amount required to be paid to remove liens or encumbrances on or claims with respect to the property that is the subject of the financed purchase of an asset or certificate of participation agreement, including, but not limited to, liens, encumbrances, or claims relating to any ancillary agreement or instrument entered into pursuant to subsection (5)(r)(VII)(A) of this section. 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 the state.(B) Any financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (5)(r)(III)(B) 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)(a) of article X of the state constitution.(C) Interest paid under a financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (5)(r)(III)(B) of this section, including interest represented by the instruments, shall be exempt from state income tax.(V) The state, acting by and through the state treasurer, may enter into ancillary agreements and instruments deemed necessary or appropriate in connection with a financed purchase of an asset or certificate of participation agreement authorized pursuant to subsection (5)(r)(III)(B) of this section, including but not limited to deeds, 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)(r)(VII) of this section.(VI) 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 (5)(r)(III)(B) of this section or any ancillary agreement or instrument or interest rate exchange agreement entered into pursuant to subsection (5)(r)(V) or (5)(r)(VII)(A) of this section. 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 such a financed purchase of an asset or certificate of participation agreement, ancillary agreement or instrument, or interest rate exchange agreement may be waived by the controller or his or her designee.(VII)(A) Prior to executing a financed purchase of an asset or certificate of participation agreement pursuant to subsection (5)(r)(III)(B) of this section, in order to protect against future interest rate increases, the lessor under any financed purchase of an asset or certificate of participation agreement or the state, acting by and through the state treasurer and at the discretion of the state treasurer, may enter into an interest rate exchange agreement in accordance with article 59.3 of title 11. A financed purchase of an asset or certificate of participation agreement entered into pursuant to subsection (5)(r)(III)(B) of this section shall be a proposed public security for the purposes of article 59.3 of title 11.(B) Any agreement entered into pursuant to this subparagraph (VII) 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 this state concerning or limiting the creation of indebtedness by 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)(a) of article X of the state constitution.(C) Any money received by the state under an agreement entered into pursuant to this subsection (5)(r)(VII) shall be used to make payments on financed purchase of an asset or certificate of participation agreements entered into pursuant to subsection (5)(r)(III)(A) of this section.(s) To have and exercise all rights and powers necessary or incidental to or implied from the specific powers and duties granted in this section.Amended by 2023 Ch. 194,§ 3, eff. 8/7/2023.Amended by 2023 Ch. 153,§ 7, eff. 7/1/2023.Amended by 2022 Ch. 475, §17, eff. 1/1/2023.Amended by 2022 Ch. 469, §223, eff. 8/10/2022.Amended by 2021 Ch. 478, §6, eff. 7/1/2022.Amended by 2021 Ch. 325, §83, eff. 7/1/2021.Amended by 2021 Ch. 250, §48, eff. 6/17/2021.Amended by 2020 Ch. 70, §19, eff. 9/14/2020.Amended by 2017 Ch. 174, §5, eff. 8/9/2017.L. 2009: Entire part R&RE, (SB 09 -108), ch. 20, p. 20, §1, effective March 2. L. 2011: (5)(g)(VII) amended, (SB 11 -031), ch. 249, p. 249, § 21, effective August 10. L. 2017: (6) repealed, (SB 17-231), ch. 634, p. 634, § 5, effective August 9. L. 2020: IP(5)(g)(I) and (5)(g)(I)(A) amended, (SB 20 -136), ch. 286, p. 286, §19, effective September 14. L. 2021: (1), (2)(a)(I), IP(2)(b), (2)(b)(I), (2)(c), (3)(a), (3)(c), (4), (5)(c), (5)(k), (5)(r)(I), and (5)(r)(III)(A) amended and (5)(g.5) and (5)(g.7) added, (SB 21-260), ch. 1442, p. 1442, § 48, effective June 17; (1)(b)(II), (2)(b)(III), (5)(n), (5)(r)(II), (5)(r)(III), (5)(r)(IV), (5)(r)(V), (5)(r)(VI), (5)(r)(VII)(A), and (5)(r)(VII)(C) amended, (HB 21-1316), ch. 2064, p. 2064, § 83, effective July 1; IP(5)(g)(I) and (5)(g)(II) amended, (SB 21-257), ch. 3421, p. 3421, § 6, effective July 1, 2022.(1) This section is similar to former §§ 43-4-803, 43-4-804 , 43-4-805, and 43-4-806 as they existed prior to 2009, and the former § 43-4-805 was also relocated to §43-4-806 .
(2) Amendments to subsections (1)(b)(II) and (5)(r)(III)(A) by SB 21-260 and HB 21-1316 were harmonized.
For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020. For the legislative declaration in SB 21-260, see section 1 of chapter 250, Session Laws of Colorado 2021.