Hawaii-2013-SB749-Introduced

PART I

SECTION 1. Chapter 171C, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§171C- Public-private partnership financing. The corporation may coordinate with the Hawaii strategic development corporation for the provision of seed capital assistance or venture capital assistance by the Hawaii strategic development corporation to an enterprise to further the purposes of this chapter."

SECTION 2. Chapter 171C, Hawaii Revised Statutes, is amended by amending its title to read as follows:

"[[]Chapter[]] 171C

[~~public land development corporation~~]

public-private partnership corporation"

SECTION 3. Sections 171-2, 171-64.7, 171C-2, 171C-3, 173A‑4, 173A-5, and 206E-4 are amended by substituting the words "public private partnership corporation" wherever the words "public land development corporation" appears, as the context requires.

SECTION 4. Section 171C-3, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The board of directors of the public land development corporation shall consist of five voting members[.] and two non-voting members. The voting members shall include:

(1) The chairperson of the board of land and natural resources, or the first deputy to the chairperson of the board of land and natural resources;

(2) The director of finance, or the director's designee;

(3) The director of business, economic development, and tourism, or the director's designee;

(4) One member to be appointed by the speaker of the house of representatives; and

(5) One member to be appointed by the president of the senate;

provided that the persons appointed by the speaker of the house of representatives and the president of the senate shall possess sufficient knowledge, experience, and proven expertise in small and large businesses within the development or recreation industries, banking, real estate, finance, promotion, marketing, or management.

The term of office of the two voting members appointed by the speaker of the house of representatives and the president of the senate shall be four years each.

One non-voting member shall be the cultural expert appointed to the Hawaii community development authority by the governor, pursuant to section 206E-3(b)(1), who shall serve as an ex officio member. One non-voting member who shall have substantial experience or expertise in traditional Hawaiian land usage and knowledge of cultural land practices, who shall be appointed in the manner and serve for the term set forth in section 26-34."

SECTION 5. Section 171C-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Except as otherwise limited by this chapter, the corporation may:

(1) Sue and be sued;

(2) Have a seal and alter the same at its pleasure;

(3) Make and alter bylaws for its organization and internal management;

(4) Adopt rules under chapter 91 necessary to effectuate this chapter in connection with its projects, operations, and properties;

(5) Make and execute contracts and all other instruments necessary or convenient for the exercise of its powers and functions under this chapter;

(6) Carry out surveys, research, and investigations into technological, business, financial, consumer trends, and other aspects of leisure or recreational land uses in the national and international community;

(7) Acquire or contract to acquire by grant or purchase:

(A) All privately owned real property or any interest therein and the improvements thereon, if any, that are determined by the corporation to be necessary or appropriate for its purposes under this chapter, including real property together with improvements, if any, in excess of that needed for such use in cases where small remnants would otherwise be left or where other justifiable cause necessitates the acquisition to protect and preserve the contemplated improvements, or public policy demands the acquisition in connection with such improvements; and

(B) Encumbrances, in the form of leases, licenses, or otherwise, needed by the corporation or any state department or agency for public purposes, the disposition of subdivided lots, houselots, apartments or other economic units, or economic development;

(8) Own, hold, improve, and rehabilitate any real, personal, or mixed property acquired; and sell, assign, exchange, transfer, convey, lease, or otherwise dispose of, or encumber the same;

(9) By itself, or in partnership with qualified persons or other governmental agencies, acquire, construct, reconstruct, rehabilitate, improve, alter, or repair any infrastructure or accessory facilities in connection with any project; own, hold, sell, assign, transfer, convey, exchange, lease, or otherwise dispose of, or encumber any project; and develop or manage, by itself, or in partnership with qualified persons or other governmental agencies, any project that meets the purposes of this chapter;

(10) In cooperation with any governmental agency, [~~or otherwise through direct investment or coventure with a professional investor or enterprise or any other person, or otherwise,~~] acquire, construct, operate, and maintain public land facilities, including but not limited to leisure, recreational, commercial, residential, time share, hotel, office space, and business facilities, at rates or charges determined by the corporation;

(11) Assist developmental, recreational, and visitor-industry related enterprises, or projects developed or managed by the corporation, by conducting detailed marketing analysis and developing marketing and promotional strategies to strengthen the position of those enterprises and to better exploit local, national, and international markets;

(12) Receive, examine, and determine the acceptability of applications of qualified persons for allowances or grants for the development of new recreation and visitor-industry related products, the expansion of established recreation and visitor-industry or land development enterprises, and the altering of existing recreational, visitor-industry related, or land development enterprises;

(13) Coordinate its activities with any federal or state programs;

(14) Grant options to purchase any project or to renew any lease entered into by the corporation in connection with any of its projects, on the terms and conditions it deems advisable;

(15) Provide advisory, consultative, training, and educational services and technical assistance to any person, partnership, or corporation, either public or private, to carry out the purposes of this chapter, and engage the services of consultants on a contractual basis for rendering professional and technical assistance and advice;

(16) Procure insurance against any loss in connection with its property and other assets and operations in amounts and from insurers as it deems desirable;

(17) Accept gifts or grants in any form from any public agency or any other source;

(18) Issue bonds to finance the cost of a project and to provide for the security thereof, in the manner and pursuant to the procedure prescribed in this chapter;

(19) Subject to approval by the department, assume management responsibilities for small boat harbors in accordance with chapter 200 and any rules adopted pursuant thereto for periods not to exceed one year;

(20) Recommend to the board of land and natural resources the purchase of any privately owned properties that may be appropriate for development; and

(21) Do all things necessary or proper to carry out the purposes of this chapter."

SECTION 6. Section 171C-6, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (e) to read:

"(e) The public land planning activities of the corporation shall be coordinated with: the county planning departments [~~and the~~]; county land use plans, policies, and ordinances[.]; and, where appropriate, the land use commission or the Hawaii community development authority."

2. By amending subsection (g) to read:

"(g) Prior to implementing any plan, the corporation shall submit the proposed plan and any amendments thereto to the landowner or landowners who transferred development rights to any public land affected by the proposed plan. Any undertaking by the corporation pursuant to this chapter shall be with the prior, express written consent of the landowner or landowners directly affected[.] and shall be subject to any land use limitations or restrictions required by the landowner or landowners."

SECTION 7. Section 171C-17, Hawaii Revised Statutes, is amended to read as follows:

"§171C-17 Hawaii public land development revolving fund; established; use of corporation funds. (a) There is established the Hawaii public land development revolving fund, to which shall be credited any state appropriations to the fund, any sums collected as a result of bonds issued pursuant to this chapter, any revenues generated from the facilities, except as provided in sections 171C-17.5 and 171C-21, or other moneys made available to the fund, to be expended as directed by the corporation.

(b) Notwithstanding any provision of this chapter to the contrary, revenues, income, and receipts derived from the project facilities shall be set apart in a separate subaccount and applied solely for the following purposes:

(1) The principal and interest on the bonds;

(2) The cost of administering, operating, and maintaining the project not to exceed fifteen per cent of the sums collected, net of principal and interest payments, on account of assessments and interest for any specific project facility;

(3) The establishment of program reserves not to exceed eighty-five per cent of the sums collected, net of principal and interest payments, on account of assessments and interest for any specific project facility; provided that accumulated reserves shall be credited to and become a part of the special land and development fund, established under section 171-19, except in the case of a specific project facility that is situated in part or wholly within a small boat harbor, in which case those accumulated reserves attributable to the portions of the facility situated in the small boat harbor shall be credited to and become a part of the boating special fund, established under section 248-8; and

(4) Other purposes as may be authorized in the proceedings providing for the issuance of the bonds.

If any surplus remains in any subaccount after the payment of the bonds chargeable against that subaccount, the surplus shall be credited to and become a part of the Hawaii public land development revolving fund, except as provided in paragraph (3). Notwithstanding any other law to the contrary, moneys in the fund may be used to make up any deficiencies in the subaccount.

(c) The corporation shall hold the fund in an account or accounts separate from other funds. [~~Except as otherwise provided in subsection (b), the corporation shall invest and reinvest the fund and the income thereof to:~~

~~(1)~~ ~~Purchase qualified securities issued by enterprises for the purpose of raising seed capital; provided that the investment shall comply with the requirements of this chapter;~~

~~(2)~~ ~~Make grants, loans, and provide other monetary forms of assistance necessary to carry out the purposes of this chapter; and~~

~~(3)~~ ~~Purchase securities as may be lawful investments for fiduciaries in the State.~~]

All appropriations, grants, contractual reimbursements, and other funds [~~not designated for this purpose~~] may be used to pay for the proper general expenses and to carry out the purposes of the corporation.

[~~(d) The corporation shall purchase qualified securities issued by an enterprise only after:~~

~~(1)~~ ~~Receiving:~~

~~(A)~~ An application from the enterprise containing a business plan, which is consistent with the business and public land development plan, including a description of the enterprise and its management, product, and market;

~~(B)~~ ~~A statement of the amount, timing, and projected use of the capital required;~~

~~(C)~~ ~~A statement of the potential economic impact of the enterprise, including the number, location, and types of jobs expected to be created; and~~

~~(D)~~ ~~Any other information as the corporation shall require;~~

~~(2)~~ ~~Determining, based upon the application submitted, that:~~

~~(A)~~ ~~The proceeds of the investment will be used only to cover the seed capital needs of the enterprise, except as authorized in this section;~~

~~(B)~~ ~~The enterprise has a reasonable chance of success;~~

~~(C)~~ ~~The enterprise has the reasonable potential to create employment within the State and offers employment opportunities to residents;~~

~~(D)~~ ~~The coordinating entrepreneur and other founders of the enterprise have already made or are prepared to make a substantial financial and time commitment to the enterprise;~~

~~(E)~~ ~~The securities to be purchased are qualified securities;~~

~~(F)~~ ~~There is a reasonable possibility that the corporation will recoup at least its initial investment; and~~

~~(G)~~ Binding commitments have been made to the corporation by the enterprise for adequate reporting of financial data to the corporation, which shall include a requirement for an annual or other periodic audit of the books of the enterprise, and for control by the corporation that it considers prudent over the management of the enterprise, in order to protect the investment of the corporation, including membership on the board of directors of the enterprise, ownership of voting stock, input in management decisions, and the right of access to the financial and other records of the enterprise; and

~~(3)~~ Entering into a binding agreement with the enterprise concerning the manner of payback by the enterprise of the funds advanced, granted, loaned, or received from the corporation. The manner of payback may include the payment of dividends, returns from the public sale of corporate securities or products, royalties, and other methods of payback acceptable to the corporation. In determining the manner of payback the corporation shall establish a rate of return or rate of interest to be paid on any investment, loan, or grant of corporation funds under this section.

(e) If the corporation makes a direct investment, it shall also find that a reasonable effort has been made to find a professional investor to make an investment in the enterprise as a coventure, and that the effort was unsuccessful. The findings, when made by the corporation, shall be conclusive.

~~(f) The corporation shall make investments in qualified securities issued by an enterprise in accordance with the following limits:~~

~~(1)~~ Not more than $500,000 shall be invested in the securities of any one enterprise, except that more than a total of $500,000 may be invested in the securities of any one enterprise if the corporation finds, after its initial investment, that additional investments in that enterprise are required to protect the initial investment of the corporation, and the ~~other~~ ~~findings set forth in subsection (d) and this subsection are made as to the additional investment;~~

~~(2)~~ ~~The corporation shall not own securities~~ ~~representing~~ more than forty-nine per cent of the voting stock of any one enterprise at the time of purchase by the corporation after giving effect to the conversion of all outstanding convertible securities of the enterprise, except that if a severe financial difficulty of the enterprise occurs, threatening the investment of the corporation in the enterprise, a greater percentage of those securities may be owned by the corporation; and

~~(3)~~ ~~Not more than fifty per cent of the assets of the~~ ~~corporation~~ ~~shall be invested in direct investments at any time.~~]"

SECTION 8. Section 171C-19, Hawaii Revised Statutes, is amended to read as follows:

"[[]§171C-19[]] Exemption from requirements. (a) Notwithstanding section 171-42 and except as otherwise noted in this chapter, projects pursuant to this chapter shall be exempt from all statutes, ordinances, charter provisions, and rules of any government agency relating to special improvement district assessments or requirements; land use, zoning, and construction standards for subdivisions, development, and improvement of land; and the construction, improvement, and sale of homes thereon; provided that the public land planning activities of the corporation shall be coordinated with the county planning departments and the county land use plans, policies, and ordinances.

(b) All projects pursuant to this chapter shall comply with the following:

(1) Chapter 6E, relating to historic preservation;

(2) Section 10-13.5, relating to ceded land revenues;

(3) Chapter 92, relating to the sunshine law;

(4) Chapter 104, relating to wage and hours;

(5) Section 171-64.7, relating to legislative approval for the sale or gifting of certain lands;

(6) Chapter 343, relating to environmental impact statements;

(7) Chapter 444, relating to contractors; and

(8) Customary and traditional gathering rights and practices to the extent feasible pursuant to the state constitution and relevant statutes."

SECTION 9. Section 171C-20, Hawaii Revised Statutes, is amended to read as follows:

"[[]§171C-20[]] [~~Annual report.~~] Reports and evaluation. (a) The corporation shall submit [~~to the governor and the legislature, no later than twenty days prior to the convening of each regular session,~~] a complete and detailed report of its plans and activities[.], as follows:

(1) To the governor and legislature, no later than twenty days prior to the convening of each regular session; and

(2) To the legislature, no later than sixty days after the submission of the report specified in paragraph (1).

(b) The board shall submit to the governor and the legislature, no later than twenty days prior to the convening of each regular session, an evaluation of the executive director appointed pursuant to section 171C-3."

PART II

SECTION 10. After the adoption of rules pursuant to section 171C-4(4), Hawaii Revised Statutes, the public land development corporation shall initiate a pilot project pursuant to chapter 171C, Hawaii Revised Statutes, for the development of state lands in Wahiawa, city and county of Honolulu, identified as tax map keys 74004071, 74004001, 74006012, and 74004070. The government entities involved in the implementation of this pilot project shall include the department of accounting and general services, the department of education, and the judiciary.

SECTION 11. The public land development corporation shall include in its annual report to the governor and the legislature a detailed report on the status of the pilot project.

The public land development corporation shall notify the governor and the legislature upon the completion of the pilot project and, within ninety days of the pilot project's completion, submit a report to the governor and the legislature containing a review and evaluation of the project and any recommendations to improve the effectiveness of chapter 171C, Hawaii Revised Statutes.

SECTION 12. Until the completion of the pilot project identified in this part, the public land development corporation shall neither plan, develop, or implement any projects other than the pilot project nor enter into any agreements or contracts related to the planning, development, or implementation of any projects other than the pilot project.

PART III

SECTION 13. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 15. This Act shall take effect upon its approval; provided that part II shall be repealed on January 1, 2016.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	749
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII