Before July 1, 2009, subject to the limitation under subd. 2.
, the department may contract appropriation obligations of the state under this section for the purpose of purchasing any of the tobacco settlement revenues that had been sold by the secretary under s. 16.63
The sum of appropriation obligations issued under this section for the purpose under subd. 1.
may not exceed $1,700,000,000, excluding amounts representing original issue discount, unless a higher amount is required by Badger Tobacco Asset Securitization Corporation to defease any outstanding indebtedness secured by such tobacco settlement revenues and to release repurchased tobacco settlement revenues to the state free and clear of any security interest therein. The secretary's certification as to the amount so required shall be conclusive for all purposes of this section.
Money may be borrowed and evidences of appropriation obligation issued therefor pursuant to one or more written authorizing certifications under sub. (5)
, unless otherwise provided in the certification, at any time, in any specific amounts, at any rates of interest, for any term, payable at any intervals, at any place, in any manner, and having any other terms or conditions that the department considers necessary or useful. Appropriation obligations may bear interest at variable or fixed rates, bear no interest, or bear interest payable only at maturity or upon redemption prior to maturity.
The department may authorize evidences of appropriation obligation having any provisions for prepayment considered necessary or useful, including the payment of any premium.
Interest shall cease to accrue on an appropriation obligation on the date that the obligation becomes due for payment if payment is made or duly provided for, but the obligation and accrued interest shall continue to be a binding obligation according to its terms until 6 years overdue for payment, or such longer period as may be required by federal law. At that time, unless demand for its payment has been made, it shall be extinguished and considered no longer outstanding.
All money borrowed by the state pursuant to evidences of appropriation obligation issued under this section shall be lawful money of the United States, and all appropriation obligations shall be payable in such money.
Subject to pars. (h)
, at the time of, or in anticipation of, contracting for the appropriation obligations and at any time thereafter so long as the appropriation obligations are outstanding, the department may enter into agreements and ancillary arrangements relating to the appropriation obligations, including trust indentures, liquidity facilities, remarketing or dealer agreements, letter of credit agreements, insurance policies, guaranty agreements, reimbursement agreements, indexing agreements, or interest exchange agreements. Any payments made or received pursuant to any such agreement or ancillary arrangement shall be made from or deposited as provided in the agreement or ancillary arrangement. The determination of the department included in an interest exchange agreement that such agreement relates to an appropriation obligation shall be conclusive.
All evidences of appropriation obligation owned or held by any state fund are outstanding in all respects and the state agency controlling the fund shall have the same rights with respect to an evidence of appropriation obligation as a private party, but if any sinking fund acquires evidences of appropriation obligation that gave rise to such fund, the obligations are considered paid for all purposes and no longer outstanding and shall be canceled as provided in sub. (8) (e)
. All evidences of appropriation obligation owned by any state fund shall be registered to the fullest extent registrable.
The state shall not be generally liable on evidences of appropriation obligation and evidences of appropriation obligation shall not be a debt of the state for any purpose whatsoever. Evidences of appropriation obligation, including the principal thereof and interest thereon, shall be payable only from amounts that the legislature may, from year to year, appropriate for the payment thereof.
Subject to subd. 2.
, the terms and conditions of an interest exchange agreement under par. (e)
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.
The department receives a determination by the independent financial consulting firm 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 department 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 department'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 exceed original expectations.
With respect to any interest exchange agreement or agreements specified in par. (e)
, all of the following shall apply:
The department 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 obligation to which the agreement is related. The determination of the department included in an interest exchange agreement that such agreement relates to an obligation shall be conclusive.
The resolution authorizing the department 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 department 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.
Semiannually, during any year in which the state is a party to an agreement entered into pursuant to par. (e)
, the department shall submit a report 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.
No evidence of appropriation obligation may be issued by the state unless the issuance is pursuant to a written authorizing certification. The certification shall set forth the aggregate principal amount of appropriation obligations authorized thereby, the manner of sale of the evidences of appropriation obligation, and the form and terms thereof. The certification shall be signed by the secretary, or his or her designee, and shall be transmitted to the governor.
Appropriation obligations may be sold at either public or private sale and may be sold at any price or percentage of par value. The department may provide in any authorizing certification for refunding obligations under sub. (7)
that they be exchanged privately in payment and discharge of any of the outstanding obligations being refinanced. All appropriation obligations sold at public sale shall be noticed as provided in the authorizing certification. Any bid received at public sale may be rejected.
Evidences of appropriation obligation may be in the form of bonds, notes, or other evidences of obligation, and may be issued in book-entry form or in certificated form. Notwithstanding s. 403.104 (1)
, every evidence of appropriation obligation is a negotiable instrument.
Every evidence of appropriation obligation shall be executed in the name of and for the state by the governor and shall be sealed with the great seal of the state or a facsimile thereof. The facsimile signature of the governor may be imprinted in lieu of the manual signature of such officer, as the department directs, if approved by such officer. An evidence of appropriation obligation 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 appropriation obligation shall be dated not later than the date issued, shall contain a reference by date to the appropriate authorizing certification, shall state the limitation established in sub. (4) (g)
, and shall be in accordance with the authorizing certification.
An evidence of appropriation obligation shall be in such form and contain such statements or terms as determined by the department, and may not conflict with law or with the appropriate authorizing certification.
The department may authorize the issuance of appropriation obligation refunding obligations. Refunding obligations may be issued, subject to any contract rights vested in owners of obligations being refinanced, to refinance all or any part of one or more issue of obligations notwithstanding that the obligations may have been issued at different times. The principal amount of the refunding obligations may not exceed the sum of: the principal amount of the obligations being refinanced; applicable redemption premiums; unpaid interest on the obligations to the date of delivery or exchange of the refunding obligations; in the event the proceeds are to be deposited in trust as provided in par. (c)
, interest to accrue on the obligations from the date of delivery to the date of maturity or to the redemption date selected by the department, whichever is earlier; and the expenses incurred in the issuance of the refunding obligations and the payment of the obligations.
A determination by the department that a refinancing is advantageous or that any of the amounts provided under subd. 1.
should be included in the refinancing shall be conclusive.
If the department determines to exchange refunding obligations, they may be exchanged privately for and in payment and discharge of any of the outstanding obligations being refinanced. Refunding obligations may be exchanged for such principal amount of the obligations being exchanged therefor as may be determined by the department to be necessary or advisable. The owners of the obligations being refunded who elect to exchange need not pay accrued interest on the refunding obligations if and to the extent that interest is accrued and unpaid on the obligations being refunded and to be surrendered. If any of the obligations to be refinanced are to be called for redemption, the department shall determine which redemption dates are to be used, if more than one date is applicable and shall, prior to the issuance of the refunding obligations, provide for notice of redemption to be given in the manner and at the times required by the certification authorizing the outstanding obligations.
The principal proceeds from the sale of any refunding obligations shall be applied either to the immediate payment and retirement of the obligations being refinanced or, if the obligations have not matured and are not presently redeemable, to the creation of a trust for and shall be pledged to the payment of the obligations being refinanced.
If a trust is created, a separate deposit shall be made for each issue of appropriation obligations being refinanced. Each deposit shall be with the secretary of administration or a bank or trust company that is a member of the Federal Deposit Insurance Corporation. If the total amount of any deposit, including money other than sale proceeds but legally available for such purpose, is less than the principal amount of the obligations being refinanced and for the payment of which the deposit has been created and pledged, together with applicable redemption premiums and interest accrued and to accrue to maturity or to the date of redemption, then the application of the sale proceeds shall be legally sufficient only if the money deposited is invested in securities issued by the United States or one of its agencies, or securities fully guaranteed by the United States, and only if the principal amount of the securities at maturity and the income therefrom to maturity will be sufficient and available, without the need for any further investment or reinvestment, to pay at maturity or upon redemption the principal amount of the obligations being refinanced together with applicable redemption premiums and interest accrued and to accrue to maturity or to the date of redemption. The income from the principal proceeds of the securities shall be applied solely to the payment of the principal of and interest and redemption premiums on the obligations being refinanced, but provision may be made for the pledging and disposition of any surplus.
Nothing in this paragraph may be construed as a limitation on the duration of any deposit in trust for the retirement of obligations being refinanced that have not matured and that are not presently redeemable. Nothing in this paragraph may be construed to prohibit reinvestment of the income of a trust if the reinvestments will mature at such times that sufficient cash will be available to pay interest, applicable premiums, and principal on the obligations being refinanced.
The department shall act as registrar for each evidence of appropriation obligation. No transfer of a registered evidence of appropriation obligation is valid unless made on a register maintained by the department, and the state may treat the registered owner as the owner of the instrument for all purposes. Payments of principal and interest 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 department has otherwise provided. Information in the register is not available for inspection and copying under s. 19.35 (1)
. The department may make any other provision respecting registration as it considers necessary or useful. The department may enter into a contract for the performance of any of its functions relating to appropriation obligations.
The department, or the department's agent, shall maintain records containing a full and correct description of each evidence of appropriation obligation issued, identifying it, and showing its date, issue, amount, interest rate, payment dates, payments made, registration, destruction, and every other relevant transaction.
The secretary may appoint one or more trustees and fiscal agents for each issue of appropriation obligations. The secretary may be denominated the trustee and the sole fiscal agent or a cofiscal agent for any issue of appropriation obligations. Every other 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, moneys to be used only for the purposes expressly provided in the certification authorizing the issuance of evidences of appropriation obligation or an agreement between the department and the trustee. The department may make other provisions respecting trustees and fiscal agents as the department considers 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 the department considers necessary or useful.
If any evidence of appropriation obligation is destroyed, lost, or stolen, the department shall execute and deliver a new evidence of appropriation obligation, upon filing with the department evidence satisfactory to the department that the evidence of appropriation obligation has been destroyed, lost, or stolen, upon providing proof of ownership thereof, and upon furnishing the department with indemnity satisfactory to it and complying with such other rules of the department and paying any expenses that the department may incur. The department shall cancel the evidences of appropriation obligation surrendered to the department.
Unless otherwise directed by the department, every evidence of appropriation obligation paid or otherwise retired shall be marked “canceled" and delivered, through the secretary if delivered to a fiscal agent other than the secretary, to the auditor who shall destroy them and deliver to the department a certificate to that effect.
The department may enter into a contract with any firm or individual engaged in financial services for the performance of any of its duties under this section, using selection and procurement procedures established by the department. The contract is not subject to s. 16.705
(9) Appropriation obligations as legal investments.
Any of the following may legally invest any sinking funds, moneys, or other funds belonging to them or under their control in any appropriation obligations issued under this section:
The state, the investment board, public officers, municipal corporations, political subdivisions, and public bodies.
Banks and bankers, savings and loan associations, credit unions, trust companies, savings banks and institutions, investment companies, insurance companies, insurance associations, and other persons carrying on a banking or insurance business.
Personal representatives, guardians, trustees, and other fiduciaries.
(10) Moral obligation pledge.
Recognizing its moral obligation to do so, the legislature expresses its expectation and aspiration that it shall make timely appropriations from moneys in the general fund that are sufficient to pay the principal and interest due with respect to any appropriation obligations in any year, to make payments of the state under agreements and ancillary arrangements entered into under sub. (4) (e)
, to make deposits into reserve funds created under sub. (3) (b) 3.
, and to pay related issuance or administrative expenses.
Interest on late payments. 16.528(1)(a)
“Agency" means an office, department, independent agency, institution of higher education, association, society, or other body in state government created or authorized to be created by the constitution or any law, that is entitled to expend moneys appropriated by law, including the legislature and the courts, but not including an authority created in subch. II of ch. 114
or in ch. 231
, or 279
Except as provided in sub. (3)
or as otherwise specifically provided, an agency which does not pay timely the amount due on an order or contract shall pay interest on the balance due from the 31st day after receipt of a properly completed invoice or receipt and acceptance of the property or service under the order or contract, whichever is later, or, if the agency does not comply with s. 16.53 (2)
, from the 31st day after receipt of an improperly completed invoice or receipt and acceptance of the property or service under the order or contract, whichever is later, at the rate specified in s. 71.82 (1) (a)
For the purposes of par. (a)
, a payment is timely if the payment is mailed, delivered or transferred by the later of the following:
The date specified on a properly completed invoice for the amount specified in the order or contract.
Except as provided in subd. 3.
, within 45 days after receipt of a properly completed invoice or receipt and acceptance of the property or service under the order or contract, or, if the agency does not comply with s. 16.53 (2)
, within 45 days after receipt of an improperly completed invoice or receipt and acceptance of the property or service under the order or contract, whichever is later.
For orders or contracts entered into on and after the first day of the 3rd 12-month period beginning after February 1, 1987, within 30 days after receipt of a properly completed invoice or receipt and acceptance of the property or service under the order or contract, or, if the agency does not comply with s. 16.53 (2)
, within 30 days after receipt of an improperly completed invoice or receipt and acceptance of the property or service under the order or contract, whichever is later.
(2m) Interest payable to subcontractors. 16.528(2m)(a)(a)
Except as provided in sub. (3) (e)
or as otherwise specifically provided, principal contractors that engage subcontractors to perform part of the work on an order or contract from an agency shall pay subcontractors for satisfactory work in a timely fashion. A payment is timely if it is mailed, delivered or transferred to the subcontractor no later than 7 days after the principal contractor's receipt of any payment from the agency.
If a subcontractor is not paid in a timely fashion, the principal contractor shall pay interest on the balance due from the 8th day after the principal contractor's receipt of any payment from the agency, at the rate specified in s. 71.82 (1) (a)
Subcontractors receiving payment under this subsection shall pay lower-tier subcontractors, and be liable for interest on late payments, in the same manner as principal contractors are required to pay subcontractors in pars. (a)
does not apply to the following:
Any portion of an order or contract under which the payment is made from federal moneys.
An order or contract that is subject to late payment interest or another late payment charge required by another law or rule specifically authorized by law.
An order or contract between 2 or more agencies except if the order or contract involves prison industries.
An order or contract for services which provides for the time of payment and the consequences of nontimely payment.
An order or contract under which the amount due is subject to a good faith dispute if, before the date payment is not timely, notice of the dispute is sent by 1st class mail, personally delivered or sent in accordance with the procedure specified in the order or contract. In this paragraph, “good faith dispute" means a contention by an agency that goods delivered or services rendered were of a lesser quantity or quality than ordered or specified by contract, were faulty or were installed improperly; or any other reason giving cause for the withholding of payment by the agency until the dispute is settled.
(4) Appropriation from which paid.
An agency which pays interest under this section shall pay the interest from the appropriation for administration of the program under which the order or contract was made or entered into unless payment from that appropriation is prohibited. Notwithstanding ss. 20.115
, if payment from the appropriation for administration of the program is prohibited, the interest payment shall be made from a general program operations appropriation of the agency determined by the agency. If the program is administered from more than one appropriation, the interest payment shall be made from the appropriation or appropriations for program administration determined by the agency.
(5) Reports of interest paid.
Annually before October 1, each agency shall report to the department the number of times in the previous fiscal year the agency paid interest under this section, the total amount of interest paid and the reasons why interest payments were not avoided by making timely payment.
(6) Attorney fees.
Notwithstanding s. 814.04 (1)
, in an action to recover interest due under this section, the court shall award the prevailing party reasonable attorney fees.