CHAPTER 15
(SB 216)
Science and Technology Authority created.
ENTITLED, An Act to
create the Science and Technology Authority, to provide for its powers and
duties, and to declare an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
The Legislature finds and declares:
(1) That the State of South Dakota and the northern plains region of the United States are
underrepresented and underdeveloped in the areas of scientific and technological
investigation, experimentation, and development;
(2) That fostering and facilitating scientific and technological investigation,
experimentation, and development will benefit the state economically and educationally
by creating immediate and future jobs and educational opportunities, and will add to the
quality of life of the citizens of South Dakota by adding to the general wealth of human
knowledge;
(3) That the creation of the authority by this Act will foster and facilitate scientific and
technological investigation, experimentation, and development by creating a mechanism
through which laboratory, experimental, and development facilities, both nonprofit and
for-profit, both governmental and nongovernmental, may be acquired, developed,
constructed, funded, maintained, and operated; and
(4) That the foregoing are public purposes and uses.
Section
2.
The purpose of the authority created by this Act is to foster and facilitate scientific
and technological investigation, experimentation, and development by creating a mechanism
through which laboratory, experimental, and development facilities may be acquired, developed,
constructed, maintained, operated, and decommissioned.
Section
3.
Terms used in this Act mean:
(1) "Authority," the South Dakota Science and Technology Authority created by this Act;
(2) "Board," the board of directors of the authority;
(3) "Project," any undertaking that includes surface and underground real and personal
property, including mineral rights, water rights, facilities, buildings and other structures,
improvements, machinery, parking facilities, and all other equipment or resources
generally suitable for use in, developing, constructing, acquiring, improving,
maintaining, or operating a facility or laboratory for scientific research or technological
development. A project includes all site improvements and new construction for
sidewalks, sewers, water facilities, solid waste and wastewater treatment and disposal
sites, pollution control facilities, resource or waste reduction, recovery, treatment, and
disposal facilities, parks, open spaces, wildlife sanctuaries, streets, highways, runways,
hangars, and any other facilities or operations required for the development,
construction, acquisition, improvement, maintenance, or operation of a facility or
laboratory for scientific research or technological development;
(4) "Costs incurred in connection with the development, construction, acquisition,
improvement, maintenance, operation, or decommissioning of a project," includes the
following: the cost of purchase of liability, indemnification, and other insurance or other
risk-reduction or risk-transfer mechanisms necessary in order to acquire the facilities
or property necessary for a project, or to maintain and operate a project; the cost of
purchase and construction of all real and personal property and related improvements,
together with the equipment and other property, water rights, mineral rights, and
easements acquired that are deemed necessary for the construction of the project;
financing charges; interest costs with respect to revenue bonds, notes, and other
evidences of indebtedness of the authority prior to and during initial construction and
for a period of thirty-six months thereafter; engineering and legal expenses; the costs
of plans, specifications, surveys, and estimates of costs and other expenses necessary
or incident to determining the feasibility or practicability of any project; and such other
expenses as may be necessary or incident to the financing, insuring, development,
construction, acquisition, improvement, maintenance, operation, or decommissioning
of a specific project;
(5) "Financial aid," funds or in-kind contributions or donations from any source, including
grants, and also the expenditure of authority funds or funds provided by the authority
through the issuance of its revenue bonds, notes, or other evidences of indebtedness for
the development, construction, acquisition, improvement, maintenance, operation, or
decommissioning of a project;
(6) "Governmental agency," any federal, state, or local governmental body, and any agency
or instrumentality thereof, corporate or otherwise;
(7) "Lease agreement," an agreement under which a project is leased to any person,
governmental agency, foundation, or entity that will use or cause the project to be used
as a project upon such terms as may be deemed desirable by the authority, including
providing for lease rental payments at least sufficient to pay when due the lessee's pro
rata share of all principal of and interest and premium, if any, on any revenue bonds,
notes, or other evidences of indebtedness of the authority issued with respect to the
project, providing for the maintenance, insurance, operation, and decommissioning of
the project on terms satisfactory to the authority, and providing for disposition of the
project upon termination of the lease term, including purchase options or abandonment
of the premises;
(8) "Financing agreement," any agreement by which the authority agrees to loan or grant
its funds, including the proceeds of its revenue bonds, notes, or other evidences of
indebtedness issued with respect to a project to any person or governmental agency that
will use or operate the project upon terms providing for loan repayment installments at
least sufficient to pay when due the borrower's pro rata share of all principal and interest
and premium, if any, on any revenue bonds, notes, or other evidences of indebtedness
of the authority issued with respect to the project, providing for construction,
maintenance, insurance, operation, and decommissioning of the project on terms
satisfactory to the authority, and providing for other matters as may be deemed
advisable by the authority;
(9) "Person," includes, without limitation, an individual, corporation, limited liability
company, unincorporated association, foundation, partnership, limited liability
partnership, and any other legal entity, including a trustee, receiver, assignee, or
personal representative of the entity;
(10) "Revenue bond" or "bond," any bond issued by the authority, the principal and interest
of which are payable solely from revenues or income derived from any project or
activity of the authority.
Section
4.
The South Dakota Science and Technology Authority is hereby created as a body
corporate and politic.
Section
5.
The governing and administrative powers of the authority are vested in its board of
directors consisting of seven members. The Governor shall appoint the directors, with the advice
and consent of the Senate. Not all members of the board may be of the same political party. The
terms of the members of the board may not exceed six years. The terms of the initial board of
directors shall be staggered by the drawing of lots so that not more than two of the director's terms
shall end at the same time. Members of the board may serve more than one term.
Section
6.
The Governor may remove any member of the board for cause, including
incompetence, neglect of duty, or malfeasance in office.
Section
7.
Members of the board shall receive compensation for the performance of their duties
as established by the Legislature in accordance with
§
4-7-10.4 from the funds of the authority.
Members may be reimbursed at rates established by the Bureau of Personnel for necessary
expenses, including travel and lodging expenses, incurred in connection with the performance of
their duties as members.
Section
8.
Each member of the board shall, before entering upon the duties of office, take and
subscribe the constitutional oath of office.
Section
9.
The board may appoint an executive director. The executive director may not be a
member of the board. The executive director shall hold office at the discretion of the board. The
executive director shall be the chief administrative and operational officer of the authority, shall
direct and supervise its administrative affairs and general management, shall perform such other
duties as may be prescribed from time to time by the board, and shall receive compensation fixed
by the board. The executive director shall attend all meetings of the board. However, no action of
the board or the authority is invalid on account of the absence of the executive director from a
meeting. The board may engage the services of such other agents and employees as they deem
appropriate, including attorneys, appraisers, scientists, researchers, engineers, accountants, credit
analysts, and other consultants, and may prescribe their duties and fix their compensation.
Section
10.
The board shall meet on the call of the chair, upon the written request of four
members of the board, or upon the request of the executive director.
Section
11.
A majority of the members of the board constitute a quorum for the transaction of
business. All official acts of the authority shall require the affirmative vote of at least four
members of the board at a meeting of the board at which the members casting those affirmative
votes are present.
Section
12.
Notwithstanding any other law to the contrary it is not a conflict of interest for a
trustee, director, officer, or employee of any health institution, educational institution, financial
institution, investment banking firm, brokerage firm, commercial bank or trust company,
architectural firm, engineering firm, mining firm, insurance company, or any other firm, person,
or corporation to serve as a member of the authority, if the trustee, director, officer, or employee
abstains from deliberation, action, and vote by the authority in each instance where the business
affiliation of any such trustee, director, officer, or employee is involved.
Section
13.
Each meeting of the authority for any purpose whatsoever shall be open to the
public as required by chapter 1-25. Notice of meetings shall be as provided in the bylaws of the
authority. Resolutions need not be published or posted.
Section
14.
The executive director or other person designated by the authority shall keep a
record of the proceedings thereof and shall be custodian of all books, documents, and papers filed
with the authority, the minute books or journal of the authority and its official seal. The executive
director or other person designated by the authority may cause copies to be made of all minutes and
other records and documents of the authority and may give certificates under the official seal of
the authority to the effect that such copies are true copies and all persons dealing with the authority
may rely on such certificates.
Section
15.
The authority may:
(1) Have perpetual succession as a body politic and corporate exercising essential public
functions;
(2) Sue and be sued in its own name;
(3) Have an official seal and alter the seal at will;
(4) Maintain an office at such places within the state as the authority may designate;
(5) Make and execute contracts and all other instruments necessary or convenient for the
performance of its duties and the exercise of its powers and functions under this Act;
(6) Employ fiscal consultants, engineers, attorneys, and such other consultants and
employees as may be required and contract with agencies of the state to provide staff
and support services;
(7) Procure insurance against any loss in connection with its property and other assets,
including loans and notes in such amounts and from such insurers as it may deem
advisable;
(8) Borrow money and issue bonds as provided by this Act;
(9) Procure insurance, letters of credit, guarantees, or other credit enhancement
arrangements from any public or private entities, including any department, agency, or
instrumentality of the United States or the state, for payment of all or any portion of any
bonds issued by the authority, including the power to pay premiums, fees, or other
charges on any such insurance, letters of credit, guarantees, or credit arrangements;
(10) Receive and accept from any source financial aid or contributions of moneys, property,
labor, or other things of value to be held, used, and applied to carry out the purposes of
this Act subject to the conditions upon which the grants or contributions are made,
including, gifts or grants from any department, agency, or instrumentality of the United
States for any purpose consistent with the provisions of this Act;
(11) Provide technical assistance to local public bodies and to profit and nonprofit entities
to foster and facilitate scientific and technological investigation, experimentation, and
development;
(12) To the extent permitted under its contract with the holders of bonds of the authority,
consent to any modification with respect to the rate of interest, time, and payment of any
installment of principal or interest, or any other term of any contract, loan, loan note,
loan note commitment, contract, lease, or agreement of any kind to which the authority
is a party;
(13) To make loans and grants to, and enter into financing agreements with, any
governmental agency or any person for the costs incurred in connection with the
development, construction, acquisition, improvement, maintenance, operation, or
decommissioning of a project, or for the maintenance of the physical or structural
integrity of real or personal property incorporated or which may be incorporated into a
project, in accordance with a written agreement between the authority and such
governmental agency or person. However, no such loan or grant may exceed the total
cost of such project as determined by the governmental agency or person and approved
by the authority;
(14) Cooperate with and exchange services, personnel and information with any
governmental agency;
(15) Enter into agreements for management on behalf of the authority of any of its properties
upon such terms and conditions as may be mutually agreeable;
(16) Sell, exchange, lease, donate, and convey any of its properties whenever the authority
finds such action to be in furtherance of the purposes for which it was organized;
(17) Acquire, hold, lease, and dispose of real and personal property, and construct, develop,
maintain, operate, and decommission projects for the purposes for which the authority
was created;
(18) Indemnify any person or governmental agency for such reasonable risks as the authority
deems advisable if the indemnification is a condition of a grant, gift, or donation to the
authority. However, any such obligation to indemnify may only be paid from insurance
or from revenues of the authority, and such obligation does not constitute a debt or
obligation of the State of South Dakota; and
(19) Do any act and execute any instrument which in the authority's judgment is necessary
or convenient to the exercise of the powers granted by this Act or reasonably implied
from it.
Section
16.
The authority may, pursuant to chapter 1-26, promulgate rules necessary to regulate
the authority's affairs, to carry into effect the powers and purposes of the authority, and to conduct
its business, including rules to:
(1) Establish application procedures for grants and loans from the authority;
(2) Establish eligibility criteria for such grants or loans;
(3) Govern the use of proceeds of such grants or loans;
(4) Establish criteria for the terms and conditions upon which such grants or loans shall be
made, including the security, if any, that may be required for such loans; and
(5) Establish criteria for the lease or other use of any real or personal property owned by the
authority, or the placement of experiments in any facility owned or controlled by the
authority.
Section
17.
Loans and grants made by the authority pursuant to the terms of this Act shall be
upon such terms and conditions as the authority may deem necessary, and may be with or without
interest and on a secured or unsecured basis.
Section
18.
The authority may invest any funds not needed for immediate investment in the
following:
(1) Bonds, notes, certificates of indebtedness, treasury bills, or other securities constituting
direct obligations of, or obligations the principal of and interest on which are fully
guaranteed or insured by, the United States of America;
(2) Obligations issued by or obligations the principal of and interest on which are fully
guaranteed or insured by any agency or instrumentality of the United States of America;
(3) Certificates of deposit or time deposits constituting direct obligations of any bank which
is a qualified public depository or any savings and loan association which is a savings
and loan depository under the Public Deposit Insurance Act pursuant to chapter 4-6A,
unless sufficient volume of such certificates is not available at competitive interest rates.
In that event, the authority may purchase noncollateralized direct obligations of any
bank or savings institution or holding company if such institution or holding company
is rated in the highest two quality categories by a nationally recognized rating agency;
(4) Obligations of any solvent insurance company or other corporation or business entity
existing under the laws of the United States or any state thereof, if the obligation of the
insurance company or other corporation or business entity is rated in the two highest
classifications established by a standard rating service of insurance companies or a
nationally recognized rating agency;
(5) Short term discount obligations of the Federal National Mortgage Association;
(6) Obligations issued by any state of the United States or any political subdivision, public
instrumentality, or public authority of any state of the United States, which obligations
are not callable before the date the principal thereof will be required to be paid and
which obligations are fully secured as to both sufficiency and timely payment by, and
payable solely from, securities described in subdivision (1) and which obligations are
rated in the highest investment classification by at least two standard rating services of
such obligations.
Any securities may be purchased at the offering or market price thereof at the time of the
purchase. All securities so purchased shall mature or be redeemable on a date or dates prior to the
time when, in the judgment of the authority, the funds so invested will be required for expenditure.
The express judgment of the authority as to the time when any funds will be required for
expenditure or be redeemable is final and conclusive. Investment in any obligation enumerated in
this section may be made either directly or in the form of securities of, or other interests in, an
investment company registered under the Federal Investment Act of 1940, whose shares are
registered under the Federal Securities Act of 1933, and whose investments are limited to these
obligations.
Section
19.
The authority shall have the continuing power to issue revenue bonds, notes, or
other evidences of indebtedness to pay the cost incurred in connection with developing,
constructing, acquiring, improving, maintaining, operating, and decommissioning projects. For the
purpose of evidencing the obligations of the authority to repay any money borrowed, the authority
may, pursuant to resolution, from time to time issue and dispose of its interest bearing revenue
bonds, notes, or other instruments and may also from time to time issue and dispose of such bonds,
notes, or other instruments to refund, at maturity, at a redemption date or in advance of either, any
revenue bonds, notes, or other instruments pursuant to redemption provisions or at any time before
maturity. All such revenue bonds, notes, or other instruments shall be payable solely from the
revenues or income to be derived with respect to projects, from the leasing or sale of the projects,
or from any other funds available to the authority for such purposes. The revenue bonds, notes, or
other instruments may bear such date or dates, may mature at such time or times not exceeding
forty years from their respective dates, may bear interest at such rate or rates, may be in such form,
may carry such registration privileges, may be executed in such manner, may be payable at such
place or places, may be made subject to redemption in such manner and upon such terms, with or
without premium as is stated on the face thereof, may be authenticated in such manner, and may
contain such terms and covenants as may be provided by an applicable resolution.
Section
20.
Any holder of any revenue bonds, notes, or other instruments issued by the
authority may bring suits at law or proceedings in equity to compel the performance and
observance by any corporation or person or by the authority or any of its agents or employees of
any contract or covenant made with the holders of such revenue bonds, notes, or other instruments,
to compel such corporation, person, the authority, and any of its agents or employees to perform
any duties required to be performed for the benefit of the holders of any such revenue bonds, notes,
or other instruments by the provision of the resolution authorizing their issuance and to enjoin such
corporation, person, the authority, and any of its agents or employees from taking any action in
conflict with any such contract or covenant.
Section
21.
If the authority fails to pay the principal of or interest on any of the revenue bonds
or premium, if any, as the same become due, a civil action to compel payment may be instituted
in the appropriate circuit court by the holder or holders of the revenue bonds on which such default
of payment exists or by an indenture trustee acting on behalf of such holders. Delivery of a
summons and a copy of the complaint to the chair of the board constitutes sufficient service to give
the circuit court jurisdiction of the subject matter of such a suit and jurisdiction over the authority
and its officers named as defendants for the purpose of compelling such payment.
Section
22.
Notwithstanding the form and tenor of any such revenue bonds, notes, or other
instruments and in the absence of any express recital on the face of any such revenue bond, note,
or other instruments that it is non-negotiable, all such revenue bonds, notes, and other instruments
shall be negotiable instruments. Pending the preparation and execution of any such revenue bonds,
notes, or other instruments, temporary revenue bonds, notes, or instruments may be issued as
provided by resolution.
Section
23.
To secure the payment of any or all of such revenue bonds, notes, or other
instruments, the revenues to be received by the authority from a lease agreement or loan agreement
shall be pledged, and, for the purpose of setting forth the covenants and undertakings of the
authority in connection with the issuance thereof and the issuance of any additional revenue bonds,
notes, or other instruments payable from such revenues, income, or other funds to be derived from
projects, the authority may execute and deliver a trust agreement. A remedy for any breach or
default of the terms of any such trust agreement by the authority may be by mandamus proceedings
in the appropriate circuit court to compel the performance and compliance therewith, but the trust
agreement may prescribe by whom or on whose behalf the action may be instituted.
Section
24.
The revenue bonds or notes shall be secured as provided in the authorizing
resolution which may, notwithstanding any other provision of this Act, include in addition to any
other security a specific pledge or assignment of and lien on or security interest in any or all
revenues or money of the authority from whatever source which may by law be used for debt
service purposes and a specific pledge or assignment of and lien on or security interest in any
funds or accounts established or provided for by resolution of the authority authorizing the
issuance of such revenue bonds, notes, or other instruments. Any pledge made by the authority of
revenues or other moneys received or to be received by the authority pursuant to an agreement with
a governmental agency relating to a project to pay revenue bonds, notes, or other evidences of
indebtedness of the authority shall be binding from the time the pledge is made. Revenues and
other moneys received or to be received by the authority pursuant to an agreement with a
governmental agency relating to a project so pledged to pay revenue bonds, notes, or other
evidences of indebtedness of the authority shall be held outside of the state treasury and in the
custody of the authority or a trustee or a depository appointed by the authority. Revenues or other
moneys received or to be received by the authority pursuant to an agreement with a governmental
agency relating to a project so pledged to pay revenue bonds, notes, or other evidences of
indebtedness of the authority and thereafter received by the authority or such trustee or depository
shall immediately be subject to the lien of the pledge without any physical delivery thereof or
further act, and the lien of any pledge shall be binding against all parties having claims of any kind
of tort, contract, or otherwise against the authority or the State of South Dakota, irrespective of
whether the parties have notice thereof. Neither the resolution nor any other instrument by which
a pledge is created need be filed or recorded except in the records of the authority.
Section
25.
The State of South Dakota pledges to and agrees with the holders of the revenue
bonds and notes of the authority issued pursuant to this Act that the state will not limit or decrease
the rights and powers vested in the authority by this act so as to impair the terms of any contract
made by the authority with such holders or in any way impair the rights and remedies of such
holders until such revenue bonds, notes, or other instruments, together with interest thereon, with
interest on any unpaid installments of interest, and all costs and expenses in connection with any
action or proceedings by or on behalf of such holders, are fully met and discharged. The authority
is authorized to include these pledges and agreements of the state in any contract with the holders
of revenue bonds, notes, or other instruments issued pursuant to this section.
Section
26.
Nothing in this Act may be construed to authorize the authority to create a debt of
the state within the meaning of the Constitution or statutes of South Dakota and all revenue bonds,
notes, other instruments and obligations issued by the authority pursuant to the provisions of this
Act are payable and shall state that they are payable solely from the funds pledged for their
payment in accordance with the resolution authorizing their issuance or in any trust indenture or
mortgage or deed of trust executed as security therefor. The state is not in any event liable for the
payment of the principal of or interest on any bonds, notes, instruments, or obligations issued by
the authority or for the performance of any pledge, mortgage, obligation, or agreement of any kind
whatsoever which may be undertaken by the authority. No breach of any such pledge, mortgage,
obligation, or agreement may impose any pecuniary liability upon the state or any charge upon its
general credit or against its taxing power.
Section
27.
The state and all counties, municipalities, political subdivisions, public bodies,
public officers, banks, bankers, trust companies, savings banks and institutions, building and loan
associations, savings and loan associations, personal representatives, conservators, trustees, and
other fiduciaries may legally invest any debt service funds, money, or other funds belonging to
them or within their control in any bonds or notes issued pursuant to this Act.
Section
28.
Any documentary material or data made or received by the authority for purposes
under this Act, to the extent that such material or data consists of trade secrets, scientific or
technical secrets, matters involving national security, or commercial or financial information
regarding the operation of a business, may not be considered public records, and are exempt from
disclosure. Any discussion or consideration of such information may be held by the authority in
executive session.
Section
29.
The authority may acquire title to any project with respect to which it exercises its
authority.
Section
30.
The authority may acquire by purchase, lease, gift, or otherwise any property or
rights to any property from any person or any governmental agency, whether improved for the
purposes of any prospective project or unimproved. The authority may also accept any donation
of funds for its purposes from any of those sources.
Section
31.
The authority may acquire, develop, construct, improve, maintain, operate, and
decommission any project, either under its own direction or through collaboration with any
approved applicant, or to acquire any project through purchase or otherwise, using for that purpose
the proceeds derived from its sale of revenue bonds, notes, or other instruments or governmental
loans, grants or other funds and to hold title to those projects in the name of the authority.
Section
32.
The authority may enter into intergovernmental agreements with any governmental
agency.
Section
33.
The authority may share employees with governmental agencies.
Section
34.
The provisions of
§
5-2-19 do not apply to real or personal property given to the
authority.
Section
35.
Any department, board, commission, agency, or officer of this state or the Board
of Regents of the State of South Dakota, may transfer jurisdiction of or title to any property to, or
may exchange property under its control with, the authority if the transfer or exchange is approved
in writing by the Governor as being advantageous to the state.
Section
36.
The authority shall designate a qualified public depository as defined in
§
4-6A-1
as a depository of its money. Those depositories shall be designated only within the state and upon
condition that bonds approved as to form and surety by the authority and at least equal in amount
to the maximum sum expected to be on deposit at any one time shall be first given by the
depositories to the authority, those bonds to be conditioned for the safekeeping and prompt
repayment of the deposits. If any of the funds of the authority are deposited by the treasurer in any
such depository, the treasurer and the sureties on the treasurer's official bond are, to that extent,
exempt from liability for the loss of any of the deposited funds by reason of the failure, bankruptcy,
or any other act or default of the depository. However, the authority may accept assignments of
collateral by any depository of its funds to secure the deposits to the same extent and conditioned
in the same manner as assignments of collateral are permitted by law to secure deposits of the
funds consistent with the provisions of chapter 4-6A.
Section
37.
The income of the authority and all land, improvements, equipment, fixtures, or
other property interests owned by the authority are exempt from all taxation in the State of South
Dakota. The authority is exempt from the provisions of chapter 47-31A.
Section
38.
The authority is attached to the Department of Tourism and State Development for
reporting purposes. The authority shall submit such records, information, and reports in the form
and at such times as required by the secretary. However, the authority shall report at least annually.
Section
39.
Notwithstanding any other provisions of law, all funds received by the authority
shall be set forth in an informational budget as described in
§
4-7-7.2.
Section
40.
The functions and programs of the former Homestake Laboratory Conversion
Project are transferred to the authority.
Section
41.
The authority may accept the donation of the former Homestake Mine in Lead,
South Dakota, or any part thereof.
Section
42.
The sections, clauses, sentences, and parts of this Act are severable, are not matters
of mutual essential inducement, and any of them may be excised by any court of competent
jurisdiction if this Act would otherwise be unconstitutional or ineffective. It is the intention of this
Act to confer upon the authority the whole or any part of the powers in this Act provided for, and
if any one or more sections, clauses, sentences, and parts of this Act are for any reason questioned
in any court of competent jurisdiction and are adjudged unconstitutional or invalid, the judgment
does not affect, impair, or invalidate the remaining provisions thereof, but is confined in its
operation to the specific provision or provisions so held unconstitutional or invalid, and the
inapplicability or invalidity of any section, clause, sentence, or part of this Act in any one or more
instances does not affect or prejudice its applicability or validity in any other instance.
Section
43.
Whereas, this Act is necessary for the support of the state government and its
existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full
force and effect from and after its passage and approval.
Signed February 11, 2004.