CHAPTER 6-8B
BONDS OF LOCAL PUBLIC BODIES
6-8B-1 Definitions.
6-8B-2 Election required for issuance.
6-8B-3 Resolution or ordinance declaring necessity of bond issue--Contents--Election.
6-8B-4 Notice of election.
6-8B-5 Ballot form.
6-8B-6 Improvement--Authorization of bonds for purchase or construction--Expenditures authorized.
6-8B-7 School, street, or utility improvements--Authorization of bonds.
6-8B-8 Issuance of bonds on approval by voters.
6-8B-9 Issuance, form, and terms of bonds.
6-8B-10 Public or private sale--Notice and procedure for public sale.
6-8B-11 Single issue of bonds separately approved.
6-8B-12 Interest rate.
6-8B-13 Disposition of proceeds.
6-8B-14 Negotiable investment security status.
6-8B-15 Powers as issuer of negotiable investment securities.
6-8B-16 Agents for authentication, transfer, registration, payment, and other functions--Central depository system.
6-8B-17 Authentication of bonds--Signatures--Seal.
6-8B-18 Registration books--Disclosure of information.
6-8B-19 Information filed with secretary of state by issuer.
6-8B-20 Costs of issuance and sale.
6-8B-21 Signature by resident attorney.
6-8B-22 Invalidity of bonds without attorney's signature.
6-8B-23 Notice of redemption.
6-8B-24 Replacement of lost, stolen, or destroyed bonds.
6-8B-25 Tax exemption.
6-8B-26 Anticipation notes--When issuance authorized.
6-8B-27 Anticipation notes--Amount--Term.
6-8B-28 Anticipation notes--Payment--Issuance of bonds required--Exchange--Redemption.
6-8B-29 Anticipation notes--Bond provisions applicable.
6-8B-30 Refunding bonds without election--Purposes.
6-8B-31 6-8B-31. Repealed by SL 1986, ch 61.
6-8B-32 Voluntary surrender required to refund bonds not maturing or callable for twenty-five years--Provision for payment.
6-8B-33 Approvals required for refunding bonds of issuer divided into other public bodies.
6-8B-34 Refunding after detachment of land from issuer.
6-8B-35 Maximum amount of refunding bonds.
6-8B-36 Maximum aggregate indebtedness of issuer.
6-8B-37 Bonds not included in computation of aggregate indebtedness.
6-8B-38 Combining outstanding issues for refunding--Combining refunding and other purposes--Issue in series.
6-8B-39 Bonds payable from different sources--Refunding by single issue prohibited.
6-8B-40 Refunding bonds not payable from same source as bonds being refunded--Election required.
6-8B-41 Combinations subject to more than one debt limit prohibited.
6-8B-42 Issuance and sale of refunding bonds.
6-8B-43 Conclusiveness of determination that limitations have been met.
6-8B-44 Recital of authority for issuance--Incontestability after delivery for value.
6-8B-45 Exchange or sale.
6-8B-46 Disposition of proceeds of sale--Escrow.
6-8B-47 Escrow including other funds.
6-8B-48 Investment of escrow funds--Amount required in escrow--Appropriation--Verification.
6-8B-49 Purchaser not responsible for application of proceeds.
6-8B-50 Disposition of accrued interest and premiums received on sale.
6-8B-51 Outstanding bonds unaffected.
6-8B-52 Chapter of full authority--Additional to other laws.
6-8B-53 Issuance of crossover refunding bonds--Deposit of proceeds in debt service fund--Maintenance of fund--Taxes levied and appropriated for payment of refunding bonds.
6-8B-54 Securities purchased for debt service fund limited.
6-8B-55 Definition of terms.
6-8B-56 Issuance of credit enhancement obligation--Conditions.
6-8B-57 Debt service reserve fund or credit facility.
6-8B-58 Issuance of credit enhancement obligation--Findings and determinations of chapter 1-16A.
6-8B-59 Referendum.
6-8B-60 Form of covenants or pledges.
6-8B-61 Agreements with health and educational facilities authority or other financial institution entered into by state entities.
6-8B-62 Credit enhancement obligations irrepealable until fully paid.
6-8B-63 Determination by governing body on limitations conclusive absent fraud or abuse.
6-8B-64 Ad valorem taxes--Limit.
6-8B-65 Agreements with health and educational facilities authority or other financial institution entered into by municipality or county--Provisions--Interest deemed perfected.
6-8B-66 Aggregate indebtedness of municipality or county--Limit--Calculation.
6-8B-67 Tax or revenue anticipation notes--Limit.
6-8B-68 Obligation subject to provisions of §§ 6-8B-9 to 6-8B-22, inclusive.
6-8B-1. Definitions.
Terms used in this chapter, unless the context otherwise plainly requires, mean:
(1) "Bond," any obligation for the payment of a specified sum of money at a specified future date, for the repayment of money borrowed by a public body, issued by a public body pursuant to authority granted in any law, including but not limited to revenue bonds, assessment bonds, and general obligation bonds;
(2) "Clerk," the clerk, auditor, finance officer, business manager, secretary, or other recording or financial officer of a public body;
(3) "Federal securities," the bills, certificates of indebtedness, notes, bonds, or similar obligations which are direct obligations of, or the principal and interest of which obligations are unconditionally guaranteed by, the United States of America;
(4) "Governing body," the common council, commission, board of commissioners, board of trustees, board of supervisors, board of directors, school board, or other legislative body in which the legislative powers of the public body are vested;
(5) "Ordinance or resolution," an ordinance, resolution, or other proceeding by which a governing body takes formal action and adopts legislative provisions and matters of some permanency;
(6) "Public body," any county, municipality, or township, or any school district, hospital district, sanitary district, irrigation district, drainage district, water user district, or improvement district;
(7) "Refunding bond," a bond which is authorized to be issued pursuant to §§ 6-8B-30 to 6-8B-52, inclusive.
Source: SL 1984, ch 43, § 1; SL 1990, ch 52, § 1.
6-8B-2. Election required for issuance.
Unless otherwise provided, no bonds may be issued either for general or special purposes by any public body unless at an election sixty percent of voters of the public body voting upon the question vote in favor of issuing the bonds. The election shall be held in the manner described by law for other elections of the public body.
Source: SL 1984, ch 43, § 2.
6-8B-3. Resolution or ordinance declaring necessity of bond issue--Contents--Election.
If it is determined by the governing body to be necessary or expedient for any public body to issue its bonds the governing body at a regular meeting thereof or a special meeting duly called may by resolution or ordinance declare the necessity thereof and may submit the question of the issuance of bonds to the voters of the public body at any annual election or at a special election called for that purpose. The resolution or ordinance shall set forth clearly the purpose for which the bonds are to be issued and the maximum amount of the bonds. The resolution or ordinance may also include the maximum rate of interest which they draw, and the maximum time within which they shall become due and payable or other matters the governing body determines relevant to the bond issue.
Source: SL 1984, ch 43, § 3.
6-8B-4. Notice of election.
The governing body shall publish notice of the election once each week for two consecutive weeks in all official newspapers designated by the public body or if there is no official newspaper, a newspaper of general circulation serving the public body. The second notice shall be published not less than four nor more than ten days before the election.
The notice shall state the maximum amount of bonds to be issued, the purpose for which bonds are to be issued, and other matters the governing body determines to be necessary.
Source: SL 1984, ch 43, § 4; SL 2008, ch 34, § 1.
6-8B-5. Ballot form.
The ballots shall have printed thereon substantially the same language as is included in the notice of election, and there shall be printed the words "Shall the above proposition be approved and the bonds issued?" with the words "Yes" and "No" printed immediately at the left thereof, each preceded by a square or circle wherein the voter shall make a cross (x) or check mark () before the word "Yes" for voting in favor of the proposition, or a cross (x) or check mark () in the square or circle before the word "No" for voting against the same.
Source: SL 1984, ch 43, § 5.
6-8B-6. Improvement--Authorization of bonds for purchase or construction--Expenditures authorized.
The question of the issuance of bonds for the purchase or the construction of any building, facility, or improvement may be treated and submitted as a single proposition, and the governing body may determine, if bonds are authorized, whether the purchase or the construction thereof will better serve the interests of the public body. The authorization of bonds for the purpose of purchase or construction of any building, facility, or improvement includes the authorization to expend the proceeds for any equipment and furnishings, the purchase of any land, and the payment of all fees and expenses reasonably necessary to complete the building, facility, or improvement for the purpose intended. Expenditures for the above purposes need not be included in any annual appropriation ordinance of the public body.
Source: SL 1984, ch 43, § 6.
6-8B-7. School, street, or utility improvements--Authorization of bonds.
The question of the issuance of bonds for the purchase, construction, or improvements to school buildings, streets, or to any plant and distribution system owned and operated by the public body for the furnishing of utility services may be submitted as a single proposition, without specification of the amount to be expended on each improvement.
Source: SL 1984, ch 43, § 7.
6-8B-8. Issuance of bonds on approval by voters.
If the requisite percentage of the voters cast their vote in favor of a bond issue, the governing body without further act may issue bonds to the amount voted for and sell and negotiate the same.
Source: SL 1984, ch 43, § 8.
6-8B-9. Issuance, form, and terms of bonds.
Bonds may be issued in one or more series, may bear the date or dates and mature at the time or times and in the amounts as the governing body may provide, except that no bond may mature more than fifty years from the date of its issue. The bonds may bear interest at the rate or rates, payable on the date or dates, may be issued in the denominations, carry the registration privileges, be executed in the manner, be payable in the medium of payment, at the place or places within or without the state, and be subject to redemption, prior to maturity, at the times and prices as the governing body may provide. Bonds may be issued in registered form and shall be so issued when necessary under federal law and regulations as a condition for the exemption of the interest thereon from federal income taxation; or otherwise may be issued in bearer form, with coupons attached representing the interest payable thereon, or may be issued in form permitting registration of ownership of principal only.
Source: SL 1984, ch 43, § 9.
6-8B-10. Public or private sale--Notice and procedure for public sale.
The governing body may sell its bonds at a public or private sale at the price or prices the governing body determines. If the governing body determines to sell bonds at a public sale, no bonds may be sold until the sale has been advertised once a week for at least two successive weeks the first publication being at least ten days before the sale in the official newspaper of the public body, and if directed by the governing body, in any other newspaper or publication. The notice of sale shall describe the bond issue, the time and place of sale, the method of competitive bidding, which method may describe different forms or alternative forms of bids, and the place where bids will be received.
Source: SL 1984, ch 43, § 10.
6-8B-11. Single issue of bonds separately approved.
Bonds separately voted for two or more purposes may be sold and delivered as a single issue if the governing body determines.
Source: SL 1984, ch 43, § 11.
6-8B-12. Interest rate.
The maximum allowable interest rate for bonds issued by a public body may be whatever rate the governing body prescribes.
Source: SL 1984, ch 43, § 12.
6-8B-13. Disposition of proceeds.
The proceeds derived from the sale of any bonds shall be kept as a special fund apart from the other funds of the public body and shall be used exclusively for the purpose for which the bonds were issued.
Source: SL 1984, ch 43, § 13.
6-8B-14. Negotiable investment security status.
All bonds issued by any public body are negotiable investment securities within the meaning of chapter 57A-8.
Source: SL 1984, ch 43, § 14.
6-8B-15. Powers as issuer of negotiable investment securities.
The governing body of each public body may do all acts permitted or required of issuers of negotiable investment securities under chapter 57A-8, including but not limited to, the issuance of bonds in registered form and the registration, exchange, and transfer of ownership thereof on the books of the public body.
Source: SL 1984, ch 43, § 15.
6-8B-16. Agents for authentication, transfer, registration, payment, and other functions--Central depository system.
A governing body may appoint for a term as may be agreed, including for so long as a registered bond may be outstanding, corporate or other authenticating agents, transfer agents, registrars, paying or other agents, located within or without the state, and specify the terms of their appointment, including their rights, their compensation and duties, limits upon their liabilities and provisions for their payment of liquidated damages in the event of breach of certain of the duties imposed, which liquidated damages may be made payable to the issuer, the owner or a financial intermediary. Any bank or trust company appointed as an agent under this section shall comply with §§ 51A-5-7 to 51A-5-10, inclusive. A governing body may agree with custodian banks and financial intermediaries, and nominees of any of them, in connection with the establishment and maintenance by others of a central depository system for the transfer or pledge of registered bonds. Any custodian banks and financial intermediaries, and nominees, may, if qualified and acting as fiduciaries, also serve as authenticating agents, transfer agents, registrars, paying or other agents of the issuer with respect to the same issue of registered public securities. Nothing precludes the governing body through its clerk from itself performing, either alone or jointly with other governing bodies, any transfer, registration, authentication, payment, or other function described in this section.
Source: SL 1984, ch 43, § 16.
6-8B-17. Authentication of bonds--Signatures--Seal.
No bond issued in registered form, whether initially or upon registration of transfer or exchange, is valid or effective for any purpose unless a certificate of authentication is executed thereon by the registrar, by the manual signature of its authorized representative. Any registered bond may be executed by facsimile signatures, printed or otherwise reproduced thereon, of any officers or other persons who are authorized or required by law to execute the same, or to execute any certification or countersignature thereon, and who have manually signed and filed with the registrar an authorization for the use of facsimile signatures, whether or not they have ceased to hold office before the authentication or delivery of the bond. Every bearer bond shall be manually signed on its face by at least one officer of the public body, or by an authorized representative of a banking institution designated by the governing body as authenticating agent but other signatures on the bond and any coupon pertaining to it may be facsimiles of manual signatures filed with the clerk. The corporate seal, if any, of the public body may but need not be affixed to any bond, or a facsimile of the corporate seal may but need not be printed thereon.
Source: SL 1984, ch 43, § 17.
6-8B-18. Registration books--Disclosure of information.
The registration books maintained on behalf of any public body by the clerk or registrar shall not be open to inspection or copying by the general public, and no registrar, officer, or member of the governing body shall disclose information contained therein except in the following cases:
(1) If specifically provided otherwise by state or by federal law or regulations;
(2) If directed by judicial order;
(3) If requested by authorized representatives of the secretary of revenue or attorney general or the commissioner of Internal Revenue of the United States for the purpose of ascertaining the application of any estate, inheritance, or other tax on bonds or the interest thereon;
(4) If determined by the registrar to be necessary for the registration of ownership, transfer, or exchange of bonds in accordance with chapter 57A-8.
Source: SL 1984, ch 43, § 18.
6-8B-19. Information filed with secretary of state by issuer.
Every public body, authority, or agency issuing any general obligation, revenue, improvements, industrial revenue, special assessment, or other bonds of any type, shall, on forms provided by the secretary of state, file with the secretary of state, the following information concerning each issue of bonds:
(1) Name of issuer;
(2) Designation of issue;
(3) Date of issue;
(4) Purpose of issue;
(5) Type of bond;
(6) Principal amount and denomination of bond;
(7) Paying dates of principal and interest;
(8) Amortization schedule;
(9) Interest rate or rates, including total aggregate interest cost.
Source: SL 1984, ch 43, § 19.
6-8B-20. Costs of issuance and sale.
Costs incidental to the issuance and sale of bonds under this chapter may be paid by the purchaser or defrayed from the general fund of the public body, from the proceeds of bonds, from the interest or other yield derived from the investment of the proceeds or from other sources legally available to the public body.
Source: SL 1984, ch 43, § 20.
6-8B-21. Signature by resident attorney.
All bonds of every nature issued by any public body, authority, or agency shall be countersigned by an attorney actually residing in the State of South Dakota and duly licensed to practice therein.
Source: SL 1984, ch 43, § 21.
6-8B-22. Invalidity of bonds without attorney's signature.
If the bonds are not countersigned as provided by § 6-8B-21, the bonds shall be void and unenforceable.
Source: SL 1984, ch 43, § 22.
6-8B-23. Notice of redemption.
If any bonds become prepayable under any option or provision therein contained, notice of the call for redemption may be made by publication once a week for two consecutive weeks in a newspaper of general circulation serving the public body and, if directed by the governing body, in any other newspaper or publication. Alternatively, the notice may be given by mailing it to the place where the bonds are payable and to the holder of each bond to be redeemed, if the holder's name and address is known. The notice of redemption shall contain a description of the bonds to be redeemed and the redemption date and shall state that on the redemption date, not less than thirty days after the date of the first publication or the mailing of the notice, all interest on the bonds shall cease.
Source: SL 1984, ch 43, § 23.
6-8B-24. Replacement of lost, stolen, or destroyed bonds.
The replacement of lost, destroyed, and stolen bonds issued by a public body shall be handled in the manner provided by chapter 57A-8.
Source: SL 1984, ch 43, § 24.
6-8B-25. Tax exemption.
All bonds issued by any public body pursuant to this chapter, their transfer, and the income therefrom, are free from taxation within the State of South Dakota, except for taxes imposed upon financial institutions under chapter 10-43.
Source: SL 1984, ch 43, § 51; SL 2021, ch 34, § 1.
6-8B-26. Anticipation notes--When issuance authorized.
When all conditions precedent to the offering for sale of bonds of a public body in any amount and for any authorized purpose have been satisfied, the governing body may, by resolution, issue and sell notes in anticipation of the issuance of the bonds in the manner and subject to the limitations set forth in §§ 6-8B-26 to 6-8B-29, inclusive.
Source: SL 1984, ch 43, § 24A.
6-8B-27. Anticipation notes--Amount--Term.
Bond anticipation notes may be issued in a principal amount not exceeding the authorized principal amount of the bonds in anticipation of which the notes are to be issued. Such notes shall mature not later than three years after their date of issue.
Source: SL 1984, ch 43, § 24B.
6-8B-28. Anticipation notes--Payment--Issuance of bonds required--Exchange--Redemption.
Any amount of the principal of or interest on any bond anticipation notes which cannot be paid at maturity from any other funds which are properly available and appropriated by the governing body for that purpose shall be paid from the proceeds of the bonds in anticipation of which the notes were issued. The public body shall be obligated to issue and sell such bonds on or before the maturity date of the bond anticipation notes. The holders of bond anticipation notes shall have the right to require the offering of such bonds for sale, and, in the event such bonds are not sold on or before the maturity date of the notes, the holders of the notes shall have the right to require such bonds to be issued to them in exchange for the notes, by lot, on a par for par basis. In the event of any such exchange, the bonds so issued shall bear interest at the maximum rate permitted in the proceedings authorizing their issuance, shall mature serially over the maximum number of years permitted in the proceedings authorizing their issuance, and shall be subject to redemption on any interest payment date without penalty. Thereafter, whenever there is a sufficient amount of money in the sinking fund established for the bonds to prepay and redeem one or more bonds the public body shall prepay and redeem such bond or bonds on the next succeeding interest payment date for which notice of redemption can be duly given.
Source: SL 1984, ch 43, § 24C.
6-8B-29. Anticipation notes--Bond provisions applicable.
The provisions of §§ 6-8B-9 to 6-8B-24, inclusive, shall apply to any bond anticipation notes issued pursuant to this chapter.
Source: SL 1984, ch 43, § 24D.
6-8B-30. Refunding bonds without election--Purposes.
Any bonds may be refunded, whether or not the bonds have matured or are then subject to redemption, by the public body which issued them, or any successor thereof, in the name of the public body which issued the bonds being refunded, without an election, except as provided in § 6-8B-40, but subject to provisions concerning their payment and to any other contractual limitations in the proceedings authorizing their issuance or otherwise appertaining thereto, for any one or more of the following purposes:
(1) For the purpose of extending the maturity date of all or any part of any outstanding bonds for which payment is in arrears, or for which there is not, or it is certain that there will not be, sufficient money to pay the principal or interest on the outstanding bonds as they respectively become due;
(2) For the purpose of reducing debt service costs or affecting other economies;
(3) For the purpose of reorganizing all or any part of the outstanding bonds of a public body in relation to the resources available for their payment; or
(4) To relieve the public body of restrictions imposed by covenants with respect to the bonds being refunded.
Source: SL 1974, ch 54, § 3; SDCL Supp, § 6-8A-2; SL 1984, ch 43, § 25.
6-8B-32. Voluntary surrender required to refund bonds not maturing or callable for twenty-five years--Provision for payment.
No bonds may be refunded unless the holders thereof voluntarily surrender them for exchange or payment, or unless they either mature or are callable for prior redemption under their terms within twenty-five years from the date of issuance of the refunding bonds. Provision shall be made for paying the bonds being refunded within the period of time.
Source: SL 1974, ch 54, § 5; SDCL Supp, § 6-8A-5; SL 1984, ch 43, § 27.
6-8B-33. Approvals required for refunding bonds of issuer divided into other public bodies.
If a public body having outstanding indebtedness has been divided and parts thereof are included within two or more other public bodies, by any lawful means, the refunding of the bonds requires affirmative action by a majority of the members of the governing bodies of each of the public bodies within which any part of the area of the public body which is being lawfully taxed to pay the outstanding indebtedness is then included, except as provided in § 6-8B-34.
Source: SL 1974, ch 54, § 15; SDCL Supp, § 6-8A-6; SL 1984, ch 43, § 28.
6-8B-34. Refunding after detachment of land from issuer.
Notwithstanding § 6-8B-33, the indebtedness of any public body outstanding at the time part or parts of the public body are detached therefrom by any lawful means and which public body has retained its lawful corporate existence after the detachment of the land from the public body may be refunded by action of the governing body of the public body from which land has been detached with or without concurrence or action by the governing board of the public body, if any, within which the detached land is included.
Source: SL 1974, ch 54, § 15; SDCL Supp, § 6-8A-7; SL 1984, ch 43, § 29.
6-8B-35. Maximum amount of refunding bonds.
The principal amount of the refunding bonds may not exceed the amount necessary to retire the refunded bonds with interest, pursuant to § 6-8B-46, or, as to crossover refunding bonds, pursuant to §§ 6-8B-53 and 6-8B-54, plus any costs or expenses associated with the refunding and the issuance of the refunding bonds.
Source: SL 1974, ch 54, § 5; SDCL Supp, § 6-8A-8; SL 1984, ch 43, § 30; SL 1987, ch 66, § 3.
6-8B-36. Maximum aggregate indebtedness of issuer.
No refunding bond may cause a public bodies' aggregate amount of indebtedness to exceed the maximum allowable constitutional or statutory provisions, if any, applicable to the public body.
Source: SL 1974, ch 54, § 7; SDCL Supp, § 6-8A-9; SL 1984, ch 43, § 31.
6-8B-37. Bonds not included in computation of aggregate indebtedness.
In computing the aggregate amount of indebtedness of any public body for the purposes of § 6-8B-36, bonds which have been refunded, as provided in this chapter, by immediate payment or prior redemption and retirement or by the placement of the proceeds of refunding bonds or investments thereof in escrow, are not deemed outstanding indebtedness as of the date on which sufficient moneys are placed with the paying agent of the outstanding bonds for the purpose of immediately paying, or redeeming and retiring the bonds, or as of the date on which the proceeds of the refunding bonds or investments thereof are placed in an escrow.
Source: SL 1974, ch 54, § 7; SDCL Supp, § 6-8A-9; SL 1984, ch 43, § 32.
6-8B-38. Combining outstanding issues for refunding--Combining refunding and other purposes--Issue in series.
Subject to §§ 6-8B-39 to 6-8B-41, inclusive, a public body may issue refunding bonds to refund one or more or any part of one or more or all issues of its bonds which are outstanding and refunding bonds and bonds authorized for any other purpose or purposes may be issued separately or issued in combination in one series or more by any public body.
Source: SL 1974, ch 54, § 6; SDCL Supp, § 6-8A-11; SL 1984, ch 43, § 33.
6-8B-39. Bonds payable from different sources--Refunding by single issue prohibited.
No two or more issues or parts of issues of outstanding bonds may be refunded by a single issue of refunding bonds unless all of the outstanding bonds are payable from the same fund or source.
Source: SL 1984, ch 43, § 34A.
6-8B-40. Refunding bonds not payable from same source as bonds being refunded--Election required.
No outstanding bonds may be refunded by an issue of refunding bonds unless either the outstanding bonds and the refunding bonds are payable from the same fund or source or the question of the issuance of the refunding bonds is submitted to and approved by the voters of the public body in accordance with §§ 6-8B-2 to 6-8B-8, inclusive.
Source: SL 1984, ch 43, § 34B.
6-8B-41. Combinations subject to more than one debt limit prohibited.
No two or more issues or parts of issues of outstanding bonds or refunding bonds authorized for any other purpose or purposes may be combined in one issue where more than one constitutional or statutory debt limitation is applicable to the combination.
Source: SL 1974, ch 54, § 6; SDCL Supp, § 6-8A-13; SL 1984, ch 43, § 35.
6-8B-42. Issuance and sale of refunding bonds.
In addition to the provisions of §§ 6-8B-30 to 6-8B-52, inclusive, all refunding bonds shall be issued and sold in accordance with the provisions of §§ 6-8B-9 to 6-8B-24, inclusive.
Source: SL 1984, ch 43, § 37.
6-8B-43. Conclusiveness of determination that limitations have been met.
The determination by a governing body that all the limitations imposed upon the issuance of refunding bonds have been met is conclusive in the absence of fraud or arbitrary and gross abuse of discretion.
Source: SL 1974, ch 54, § 14; SDCL Supp, § 6-8A-17; SL 1984, ch 43, § 39.
6-8B-44. Recital of authority for issuance--Incontestability after delivery for value.
Any resolution, ordinance, or other instrument may provide that each refunding bond shall recite that it is issued pursuant to this chapter. The recital shall conclusively impart full compliance with §§ 6-8B-30 to 6-8B-52, inclusive. All refunding bonds issued containing the recital are incontestable for any cause whatsoever after their delivery for value.
Source: SL 1974, ch 54, § 12; SDCL Supp, § 6-8A-18; SL 1984, ch 43, § 40.
6-8B-45. Exchange or sale.
Any refunding bonds may either be delivered in exchange for the outstanding bonds being refunded or may be publicly or privately sold at a price and in the manner determined by the governing body, in accordance with § 6-8B-10.
Source: SL 1974, ch 54, § 8; SDCL Supp, § 6-8A-23; SL 1984, ch 43, § 43.
6-8B-46. Disposition of proceeds of sale--Escrow.
The proceeds of refunding bonds shall either be immediately applied to the retirement of the bonds to be refunded or be placed in escrow in any financial institution within or without the state which has trust powers, and has complied with the applicable provisions of §§ 51A-5-7 to 51A-5-10, inclusive, to be applied to the payment of the bonds being refunded upon their presentation therefor.
Source: SL 1974, ch 54, § 10; SDCL Supp, § 6-8A-24; SL 1984, ch 43, § 44.
6-8B-47. Escrow including other funds.
The public body may appropriate to any escrow established under § 6-8B-46, any other moneys available for the purpose, including moneys on hand in the sinking fund for the refunded bonds.
Source: SL 1974, ch 54, § 10; SDCL Supp, § 6-8A-25; SL 1984, ch 43, § 45.
6-8B-48. Investment of escrow funds--Amount required in escrow--Appropriation--Verification.
Moneys deposited in any escrow, established under § 6-8B-46, may be invested in federal securities and such investments, together with any interest or other yield to be derived from any such investments and any moneys not invested, shall be in an amount at all times sufficient as to principal, interest, any prior redemption premium due, and any charges of the escrow agent payable therefrom, to pay the principal of, premium, if any, and interest on the bonds being refunded as such become due at their respective maturities or due at any designated prior redemption date or dates, if called for redemption. The moneys and investments in such escrow account shall be irrevocably appropriated to the payment of the principal of, premium, if any, and interest on the refunded bonds. The computations made in determining the sufficiency of the escrow shall be verified by a certified public accountant licensed or authorized to practice in this state.
Source: SL 1974, ch 54, § 10; SDCL Supp, §§ 6-8A-25, 6-8A-26; SL 1984, ch 43, § 46.
6-8B-49. Purchaser not responsible for application of proceeds.
No purchaser of any refunding bond is responsible for the application of the proceeds thereof by the issuer or any of its officers, agents, or employees.
Source: SL 1974, ch 54, § 10; SDCL Supp, § 6-8A-27; SL 1984, ch 43, § 47.
6-8B-50. Disposition of accrued interest and premiums received on sale.
Any accrued interest and any premium appertaining to a sale of refunding bonds may be applied to the payment of the interest thereon, the principal thereof, or both interest and principal, or may be deposited in a reserve therefor, or may be used to defray incidental costs, or applied to the payment of the bonds being refunded, or deposited in an escrow, established pursuant to § 6-8B-46, as the governing body determines.
Source: SL 1974, ch 54, § 10; SDCL Supp, § 6-8A-28; SL 1984, ch 43, § 48.
6-8B-51. Outstanding bonds unaffected.
Sections 6-8B-30 to 6-8B-52, inclusive, have no effect on the legality of any outstanding bond issued for refunding or other purposes pursuant to any other law.
Source: SL 1984, ch 43, § 56.
6-8B-52. Chapter of full authority--Additional to other laws.
Sections 6-8B-30 to 6-8B-52, inclusive, without reference to other statutes of the state, except as herein otherwise specifically provided, constitute full authority for the authorization and issuance of refunding bonds. No other act or law with regard to the authorization or issuance of bonds that in any way impedes or restricts the carrying out of the acts authorized to be done may be construed as applying to any proceedings taken pursuant to this chapter, except as otherwise provided. The powers conferred by §§ 6-8B-30 to 6-8B-52, inclusive, are in addition and supplemental to, and not a substitution for, and the limitations imposed by §§ 6-8B-30 to 6-8B-52, inclusive, do not affect the powers conferred by any other law except as otherwise provided herein.
Source: SL 1974, ch 54, § 19; SDCL Supp, § 6-8A-37; SL 1984, ch 43, § 57.
6-8B-53. Issuance of crossover refunding bonds--Deposit of proceeds in debt service fund--Maintenance of fund--Taxes levied and appropriated for payment of refunding bonds.
Crossover refunding bonds may be issued by a public body without regard to the limitations in §§ 6-8B-46 and 6-8B-48. The proceeds of crossover refunding bonds less any proceeds applied to payment of the costs of their issuance, shall be deposited in a debt service fund irrevocably appropriated to the payment of principal of and interest on the refunding bonds until the date the proceeds are applied to payment of the bonds to be refunded. The debt service fund shall be maintained as an escrow account with a suitable financial institution within or without the state, which has trust powers and which has complied with the applicable provisions of §§ 51A-5-7 to 51A-5-10, inclusive, and amounts in it shall be invested in securities described in this section. Excess proceeds, if any, of the tax levy made with respect to the bonds to be refunded, and any other available amounts, may be deposited in the escrow account. In the resolution authorizing the issuance of crossover refunding bonds, the governing body may pledge to their payment any source of payment of the bonds to be refunded. In the case of general obligation bonds, taxes shall be levied and appropriated to the debt service fund in the amounts needed, together with estimated investment income of the debt service fund and any other revenues available upon discharge of the bonds refunded, to pay when due the principal of and interest on the refunding bonds. The levy so imposed may be reduced by earnings to be received from investments on hand in the debt service fund to the extent the applicable recording officer certifies to the county auditor that the earnings are expected to be received in amounts and at such times as to be sufficient, together with the remaining levy, to satisfy the purpose of the levy. Any taxes levied for the payment of principal of or interest on the bonds to be refunded shall continue until all of the bonds to be refunded have been fully paid.
Source: SL 1987, ch 66, § 1.
6-8B-54. Securities purchased for debt service fund limited.
Securities purchased for the debt service fund shall be limited to:
(1) General obligations of the United States, securities whose principal and interest payments are guaranteed by the United States, and securities issued by the following agencies of the United States: banks for cooperatives, federal home loan banks, federal intermediate credit banks, federal land banks, and the federal national mortgage association; or
(2) Obligations issued or guaranteed by any state or any political subdivision of a state, which at the date of purchase are rated the highest or the next highest rating given by Standard and Poor's Corporation, Moody's Investors Service, or a similar nationally recognized rating agency, but not less than the rating on the refunded bonds immediately prior to the refunding.
Source: SL 1987, ch 66, § 2.
6-8B-55. Definition of terms.
Terms used in §§ 6-8B-56 to 6-8B-69, inclusive, mean:
(1) "Credit enhancement obligation," an agreement, instrument, or other arrangement described in §§ 6-8B-56 to 6-8B-69, inclusive, pursuant to which any municipality or county covenants or agrees to levy taxes or pledge its full faith and credit or other revenues, funds, fees, or property in amounts estimated by the municipality or county to be necessary to pay debt service and related charges on or in connection with bonds or other obligations issued to finance or refinance property, real or personal, and related costs for a qualified nonprofit corporation which owns or operates a hospital in South Dakota;
(2) "Qualified nonprofit corporation," a nonprofit corporation which owns or operates a hospital which provides or intends to provide services to all or a portion of the residents of a municipality or county which proposes to issue a credit enhancement obligation.
Source: SL 1992, ch 3, § 4.
6-8B-56. Issuance of credit enhancement obligation--Conditions.
The governing body of any municipality or county may authorize the issuance of a credit enhancement obligation upon compliance with the requirements of this section and chapter 1-16A. The governing body shall find and determine that:
(1) The credit enhancement obligation will serve as a public purpose of such municipality or county by promoting the public health, welfare, or safety of residents of the municipality or county by permitting or assisting a qualified nonprofit corporation to borrow money at rates, for a term or in amounts not otherwise available to such corporation;
(2) The purpose of the borrowing by a qualified nonprofit corporation is to finance or refinance real or personal property or other costs incurred by or on behalf of a qualified nonprofit corporation for the purpose of providing hospital services within the State of South Dakota; and
(3) The reasonably anticipated revenues of the qualified nonprofit corporation and any other available amounts or revenues are expected to be sufficient to pay debt service when due with respect to bonds or other obligations to be secured by the credit enhancement obligation.
Source: SL 1992, ch 3, § 5.
6-8B-57. Debt service reserve fund or credit facility.
If a municipality or county determines that it is not precluded by any applicable law or regulation which may govern the exclusion of interest on the bonds or other obligations from federal income taxation, the terms and conditions applicable to the borrowing by the qualified nonprofit corporation shall include a debt service reserve fund or account or similar arrangement or credit facility as shall be approved by the health and educational facilities authority in an amount approximately equal to maximum annual debt service on the bonds or other obligations to be secured by the credit enhancement obligation.
Source: SL 1992, ch 3, § 6.
6-8B-58. Issuance of credit enhancement obligation--Findings and determinations of chapter 1-16A.
Any resolution or ordinance of a municipality or county approving the issuance of a credit enhancement obligation shall require that the health and educational facilities authority make the findings and determinations required by chapter 1-16A with respect to the credit enhancement obligation prior to the issuance and delivery of the credit enhancement obligation and the bonds or other obligations to be secured thereby.
Source: SL 1992, ch 3, § 7.
6-8B-59. Referendum.
Approval of an ordinance or resolution approving a credit enhancement obligation shall be subject to a referendum if five percent of the registered voters, based upon the total number of registered voters at the last preceding general election, petition, within twenty days after such approval, to have the question of approval or disapproval of the credit enhancement obligation placed upon the ballot at the next regular election or at a special election called for such purpose. Except as may be required by a petition for referendum described in the preceding sentence, no election is required to authorize the issuance, delivery, or enforcement of a credit enhancement obligation by a county or municipality.
Source: SL 1992, ch 3, § 8.
6-8B-60. Form of covenants or pledges.
In a resolution setting forth the findings and determinations required by §§ 6-8B-56 to 6-8B-59, inclusive, a governing body may authorize the issuance of a credit enhancement obligation which may be in the form of one or more of the following covenants or pledges:
(1) The governing body may covenant that if at any time the revenues and other sums pledged to pay debt service with respect to the bonds or other obligations to be secured by the credit enhancement obligation are for any reason insufficient for such purpose, the governing body shall levy a general ad valorem tax on all taxable property within the jurisdiction of the municipality or county which issues such credit enhancement obligation for the payment of any such deficiency;
(2) The governing body may covenant that if at any time the revenues and other sums pledged to pay debt service with respect to the bonds or other obligations to be secured by the credit enhancement obligation are for any reason insufficient for such purpose, the governing body shall levy a non-ad valorem sales tax pursuant to chapter 10-52 or any successor statute and pledge all or a portion of the amounts collected therefrom for the payment of any such deficiency or, if such non-ad valorem sales tax has been or will already be so levied, the governing body shall pledge all or a portion of the amounts collected therefrom for the payment of any such deficiency; or
(3) The governing body may covenant that if any time the revenues and other sums pledged to pay such debt service with respect to the bonds or other obligations to be secured by the credit enhancement obligation are for any reason insufficient for such purpose, the governing body shall collect and apply any other identified source of revenues now or hereafter available to the municipality or county which issues such credit enhancement obligation for the payment of any such deficiency.
Source: SL 1992, ch 3, § 9.
6-8B-61. Agreements with health and educational facilities authority or other financial institution entered into by state entities.
The State of South Dakota and any of its agencies, boards, authorities, departments, and commissions may enter into agreements or other arrangements with the health and educational facilities authority or any financial institution in order to effectuate or implement any pledge or other covenant described in § 6-8B-60.
Source: SL 1992, ch 3, § 10.
6-8B-62. Credit enhancement obligations irrepealable until fully paid.
Upon the issuance and sale of bonds or other obligations secured by a credit enhancement obligation, any pledge or covenant made relating to such bonds or other obligations pursuant to a resolution or ordinance described in § 6-8B-60 and any agreement or other arrangement made pursuant to § 6-8B-61 shall be irrepealable until such time as such bonds or other obligations are fully paid with interest thereon in the manner described by the documents governing such bonds or other obligations.
Source: SL 1992, ch 3, § 11.
6-8B-63. Determination by governing body on limitations conclusive absent fraud or abuse.
The determination by a governing body that all of the limitations imposed upon the issuance of a credit enhancement obligation have been met is conclusive in the absence of fraud or arbitrary and gross abuse of discretion.
Source: SL 1992, ch 3, § 12.
6-8B-64. Ad valorem taxes--Limit.
Any ad valorem taxes levied pursuant to subdivision 6-8B-60(1) may not exceed the amount of the anticipated deficiency by more than five percent, but may not be subject to any other statutory limitation of rate or amount applicable to other taxes levied or collected by the municipality or county which issues such credit enhancement obligation.
Source: SL 1992, ch 3, § 13.
6-8B-65. Agreements with health and educational facilities authority or other financial institution entered into by municipality or county--Provisions--Interest deemed perfected.
In connection with the authorization and issuance of a credit enhancement obligation, any municipality or county may enter into one or more agreements or other arrangements with the health and educational facilities authority or any financial institution acting as trustee or paying agent for bonds or other obligations secured by the credit enhancement obligation for the purpose of implementing the provisions of §§ 6-8B-55 to 6-8B-69, inclusive. Such agreement may contain such provisions as the authority deems necessary and may provide that the financial institution may act as trustee or paying agent for the benefit of and on behalf of the authority and be held accountable as the trustee of an express trust for the application and disposition of the amounts and other funds pledged by any municipality or county pursuant to the provisions of §§ 6-8B-55 to 6-8B-69, inclusive, including the income and proceeds therefrom, solely for the uses and purposes as provided in the agreement. No filing, recording, possession, or other action under the uniform commercial code or any other law of this state may be required to perfect the security interest of the authority or any such financial institution in and to the credit enhancement obligation and amounts payable thereunder. The security interest of the authority and any such financial institution acting shall, for all purposes, be deemed perfected for the benefit of the authority, the financial institution and any holders of bonds or other obligations issued in connection therewith on and after the time of the adoption of the resolution or ordinance making the pledge against all parties having prior unperfected or subsequent security interests or claims of any kind in tort, in contract, or otherwise.
Source: SL 1992, ch 3, § 14.
6-8B-66. Aggregate indebtedness of municipality or county--Limit--Calculation.
No credit enhancement obligation may cause the aggregate amount of indebtedness of the municipality or county which issues such credit enhancement obligation to exceed the maximum allowable constitutional or statutory provisions, if any, applicable to such municipality or county. In computing the aggregate amount of indebtedness of any municipality or county which issues the credit enhancement obligation as provided in this chapter, there shall be included as indebtedness the unpaid principal amount of the outstanding bonds or other obligations secured by the credit enhancement obligation less any amounts on deposit with the health and educational facilities authority or any financial institution acting as trustee, paying agent, or in any other fiduciary capacity with respect to such obligations.
Source: SL 1992, ch 3, § 15.
6-8B-67. Tax or revenue anticipation notes--Limit.
If a municipality or county is required to or reasonably anticipates that it will be required to make payments on or with respect to a credit enhancement obligation, it may issue tax or revenue anticipation notes in the anticipated amounts of such required payments provided that the principal and interest payable with respect to any such anticipation notes may not exceed the amount of taxes or other fees, funds, revenues, or other amounts anticipated to be received on or before the date or dates on which principal and interest shall be payable on the anticipation notes.
Source: SL 1992, ch 3, § 16.
6-8B-68. Obligation subject to provisions of §§ 6-8B-9 to 6-8B-22, inclusive.
A credit enhancement obligation, any agreement related thereto and any anticipation note authorized by § 6-8B-67 shall be authorized, issued and sold as provided in, and shall be subject to the provisions of §§ 6-8B-9 to 6-8B-22, inclusive.
Source: SL 1992, ch 3, § 17.
