§ 7-1831.03 — Establishment of the District of Columbia Tobacco Settlement Financing Corporation; powers and authority.

District of Columbia § 7-1831.03

• Jurisdiction: District of Columbia
• Title 7: Human Health Care and Safety.
• Ch. 18: Tobacco Master Settlement Agreement.
• Subch. III: Tobacco Settlement Financing.

Text

(a) The District of Columbia Tobacco Settlement Financing Corporation is established as a special purpose, independent instrumentality of the District government. The Corporation shall be a corporate body, intended, created, and empowered to effectuate the purposes stated in this subchapter, and shall have a legal existence separate from the District government.

(b) The purpose of the Corporation is to purchase all of the District’s right, title, and interest in the Master Settlement Agreement, including all the moneys, and any interest thereon, payable to or received by the District thereunder (except for the first payment of $16.05 million which has already been received by the District) and the Residual Bond, issuing Bonds to pay the purchase price therefor, and to repay certain of the outstanding indebtedness of the District issued for capital projects and other undertakings. The Corporation may enter into the Purchase Agreement or the Residual Bond Purchase Agreement and may perform any acts necessary or convenient to effectuate its purposes, including financing the costs of the National Capital Medical Center indebtedness of the District, to finance or refinance the National Capital Medical Center, healthcare related issues, or other capital projects or undertakings of the District, or other capital projects, repayment, refinancing, or defeasance of certain indebtedness issued for capital projects and other undertakings.

(1) Pursuant to § 1-204.90 , subject to the restrictions of this subchapter, the Council delegates to the Corporation the power to issue revenue bonds, notes, and other obligations, including refunding revenue bonds at or before maturity, to finance or refinance, or assist in the financing or refinancing of the National Capital Medical Center, healthcare related issues, or other capital projects or undertakings of the District, which obligations shall be payable solely from, and secured by, the payments under the Master Settlement Agreement sold under § 7-1831.02 , including the power to provide for the authorization, securing, sale, and issuance of the Bonds consistent with this subchapter. This delegation is not exclusive and does not restrict, impair, or supersede the authority otherwise vested by law in any District instrumentality.

(A) The Corporation, by resolution of its board, may authorize the issuance of the Bonds. The resolution may stipulate the terms of the Bonds, including the following:

(i) The date a Bond bears;

(ii) The date a Bond matures and, if different, such other date on which a Bond may be paid;

(iii) Whether Bonds are issued as serial bonds, term bonds, or as a combination of the two;

(iv) The denominations;

(v) The interest rate or rates, or variable rate or rates changing from time to time, as provided in, or determined pursuant to, authorization under the resolution;

(vi) The method and terms of sale;

(vii) The method for payment;

(viii) Security for the Bonds;

(ix) The terms of redemption;

(x) The establishment of reserves and debt service funds and the use of proceeds of the Bonds for costs of issuance and otherwise in accordance with this subchapter; and

(xi) Any other terms which, in the opinion of the board or its advisors, may be necessary or desirable for the sale of the Bonds.

(B) The resolution authorizing the issuance of the Bonds shall include a statement as to:

(i) Whether the Bonds are intended to be sold by competitive bid or by negotiated sale and, if the Bonds are intended to be sold by negotiated sale, a statement of the reasons that sale by competitive bid is not feasible or is not in the best interests of the Corporation;

(ii) Whether the Bonds are intended to be issued on a tax-exempt or taxable basis; and

(iii) Whether the Bonds are intended to be issued on a senior or subordinate basis.

(C) The Corporation shall send a copy of the resolution authorizing the issuance of the Bonds to the Council within 3 days of its adoption.

(3) The board may delegate to the Chief Financial Officer as a member of the board the authority to prescribe the terms and conditions of the Bonds, including those referred to in § 7-1831.03(c)(2) , except that the terms and conditions of the Residual Bond shall be consistent with the provisions of the Purchase Agreement and shall provide that the Residual Interest shall be paid to the Tobacco Settlement Trust Fund established by subchapter II of this chapter , and the terms and conditions of the Remainder Certificate, if any, shall be consistent with the provisions of the Residual Bond Purchase Agreement and shall provide that the payments under the Master Settlement Agreement after payment in full of all Bonds outstanding shall be paid to the Tobacco Settlement Trust Fund established by subchapter II of this chapter .

(4) A pledge by the Corporation of contract rights, general intangibles, or revenues collected by or on behalf of the Corporation as security for the Bonds shall be valid and binding from the time the pledge is made. The contract rights, general intangibles, or revenues pledged shall immediately be subject to the lien of the pledge without physical delivery or further act, and the lien of any pledge shall be valid and binding against any person having a claim of any kind in tort, contract, or otherwise against the Corporation or the District government irrespective of whether the person has notice. Notwithstanding any law, the filing or recording of a resolution, trust, agreement, financing statement, continuation statement, or other instrument adopted or entered into by the Corporation in any public record is not required to perfect the lien against third parties.

(5) The Bonds shall be legal instruments in which public officers and public bodies of the District, insurance companies, insurance company associations, and other persons carrying on an insurance business, banks, bankers, banking institutions including savings and loan associations, building and loan associations, trust companies, savings banks, savings associations, investment companies, and other persons carrying on a banking business, administrators, guardians, executors, trustees, and other fiduciaries, and other persons authorized to invest in bonds or in other obligations of the District, may legally invest funds, including capital, in their control. The Bonds are also securities which legally may be deposited with and received by public officers and public bodies of the District or any agency of the District for any purpose for which the deposit of bonds or other obligations of the District is authorized by law.

(6) The Bonds shall not constitute an indebtedness of the District. The Bonds are not general obligations of the District and are not secured by a pledge of the full faith and credit of the District and the holders of the Bonds may not require the levy or imposition of taxes. The Bonds issued to purchase the District’s right, title, and interest in the Master Settlement Agreement are special obligations of the Corporation payable solely from, and secured by, the payments received under the Master Settlement Agreement. The Bonds issued to purchase the Fund’s right, title, and interest in the Residual Bond are obligations of the Corporation payable solely from, and secured by, the payments received under the Residual Bond. The Corporation has no taxing power. The Bonds shall contain on their face a statement containing all of the above. Nothing contained in the Bonds, or in the related financing or closing documents, shall create an obligation on the part of the Corporation or the District to make payments with respect to the Bonds from sources other than the payments received by the Corporation under the Master Settlement Agreement or under the Fund under the Residual Bond.

(7) Regardless of their form or character, the Bonds are negotiable instruments for all purposes of Title 28, subject only to the provisions of the bonds and notes for registration.

(8) No official, employee, or agent of the Corporation or the District shall be held personally liable solely because the Bonds are issued.

(9) The District pledges, which pledge the Corporation may include in any agreement with the holders of the Bonds, to the Corporation that the District will:

(i) Continue to diligently enforce the Model Statute against all tobacco product manufacturers selling tobacco products in the District that are not signatories to the Master Settlement Agreement;

(ii) Enforce the District’s rights to receive the payments to be made to the District pursuant to the Master Settlement Agreement to the full extent permitted by the terms of the Master Settlement Agreement;

(iii) Not amend the Master Settlement Agreement in any way that would materially impair the rights of the holders of Bonds;

(iv) Not limit or alter rights vested in the Corporation to fulfill agreements made with holders of the Bonds; or

(v) Not in any way impair the rights and remedies of the holders of the Bonds until the Bonds, together with the 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 the holders of the Bonds are fully met and discharged.

(10) The signature of an officer of the Corporation that appears on the Bonds, including Bonds not yet issued or delivered, shall remain valid notwithstanding that the person has ceased to hold that office.

(11) The Bonds, and the interest thereon, shall be exempt from District taxation, except estate, inheritance, and gift taxes.

(12) During a control period (as defined in § 47-392.09 ), a resolution of the board of directors of Corporation authorizing the issuance of the Bonds shall be submitted to the District of Columbia Financial Responsibility and Management Assistance Authority (“Authority”) for certification in accordance with § 47-392.04 . A certification issued by the Authority during a control period shall be effective for purposes of this subsection for Bonds issued pursuant to the resolution of the board of directors of the Corporation whether the Bonds are issued during or after the control period.

(d) In addition to any other powers or authority conferred by this section or subchapter, the Corporation shall have all the powers of a corporate body under the laws of the District to the extent not inconsistent with or restricted by the provisions of this section or subchapter, including the power to:

(1) Adopt, amend, repeal, and enforce bylaws, rules, regulations, and procedures as it determines appropriate to the governance of its affairs and the conduct of its business and which are not inconsistent with this section;

(2) Sue and be sued, and to complain and defend, in its own name;

(3) Adopt, alter, and use a corporate seal, which shall be judicially noticed; provided, that the absence of the seal on a contract or other document shall not affect its validity;

(4) Acquire, purchase, hold, lease, sell, assign, pledge, or convey real and personal property, contract rights, general intangibles, revenues, moneys, and accounts as may be proper or expedient to carry out the purposes of the Corporation and this subchapter, and to assign, convey, sell, transfer, lease, or otherwise dispose of such property;

(5) Elect, appoint, and employ such officers, agents, and employees as the Corporation deems advisable to operate and manage the affairs of the Corporation, and to define their duties and fix, adjust, and define their compensation as it determines to be appropriate;

(6) Make, execute, or perform contracts, commitments, agreements, trust indentures, and other instruments and agreements, including, as approved by its board of directors, investment contracts, swap agreements and other hedging transactions, liquidity facilities, insurance agreements, or reinsurance agreements, necessary, or convenient to accomplish the purposes of the Corporation and this subchapter;

(7) Select, retain, and employ professionals, contractors, or agents which are necessary, or convenient to enable or assist the Corporation in carrying out the purposes of the Corporation;

(8) Indemnify or insure members of the board and officers of the Corporation as it determines appropriate;

(9) Purchase insurance or self-insure against loss in connection with its property and other assets or other risks, in such amounts and from such insurers as it determines appropriate; and

(10) Perform any act not inconsistent with federal or District law necessary or convenient to carry out the purposes of the Corporation.

(1) The Corporation shall be governed by a board of directors consisting of 5 members. One member shall be the Chief Financial Officer (or, if the office is vacated, and until a successor is appointed, the acting Chief Financial Officer), one member shall be the Mayor or his designee (or, if the office is vacated, and until a successor is appointed, the acting Mayor or his designee), one member shall be the Chairman of the Council of the District or his designee (or, if the position is vacated, and until a successor is appointed, the acting Chairman), and 2 members shall be private citizens (“independent members”). Actions of the board shall be determined by a majority vote of the members unless a unanimous vote of all of the members will be required by the by-laws of the Corporation for certain purposes; provided, that the affirmative vote of the independent members shall be required for the issuance of the Bonds.

(2) One of the independent members of the board of directors shall be appointed by the Mayor and one shall be appointed by the Council within 30 calendar days after October 19, 2000, or 180 days after the date of a vacancy. Each of the independent members of the board shall serve a term of 4 years, except that an independent member selected to fill a vacancy occurring before the end of the term for which his predecessor was selected shall only serve until the end of the term. A member may serve after the expiration of his term until his successor has taken office.

(3) The members shall serve without compensation for their membership, but may receive, or be reimbursed for, the actual, reasonable, and necessary expenses incurred in the performance of their official duties.

(f) All operating and administrative expenses of the Corporation and costs of issuance of the Bonds shall be paid by the Corporation out of payments received by the Corporation under the Master Settlement Agreement and from the proceeds of the Bonds.

(g) Upon the request of the Corporation, the Mayor and the governing officer or body of each instrumentality of the District, by delegation, contract, or agreement, may direct that personnel or other resources of a District department, office, agency, establishment, or instrumentality be made available to the Corporation on a full cost reimbursable basis to carry out the Corporation’s duties. Personnel detailed to the Corporation under this subsection shall not be considered employees of the Corporation, but shall remain employees of the department, agency, establishment, or instrumentality from which the employees were detailed. With the consent of an executive agency, department, or independent agency of the federal government or the District government, the Corporation may use the information, services, staff, and facilities of the department or agency on a full cost reimbursable basis.

(1) The existence of the Corporation shall be perpetual; provided, that the board of directors, by majority vote (including both of the independent members), may dissolve the Corporation when the Bonds and all other obligations of the Corporation incurred with respect to the issuance of the Bonds have been repaid, or their repayment has been provided for fully, and the existence of the Corporation shall terminate when adequate provision has been made for all other debts and obligations, and the winding up of the affairs, of the Corporation. No assets or earnings of the Corporation shall inure to a private person or entity.

(2) As long as the Bonds are outstanding:

(A) The Corporation shall not dissolve or file a voluntary petition under any bankruptcy legislation in effect from time to time or sell all, or substantially all, of its assets;

(B) No public officer, organization, entity, or other person may authorize the Corporation to be or become a debtor under any bankruptcy legislation in effect from time to time; and

(C) The Corporation shall not take any action that materially and adversely affects the rights of the holders of the Bonds or other obligations issued by it.

(i) All assets and income of the Corporation shall be exempt from District taxation.

(j) The Corporation shall have the same fiscal year as the District.

(k) An independent accountant, appointed by the board of directors of the Corporation, shall conduct an annual audit of the accounts and records of the Corporation.

(l) No District laws, rules, or orders governing procurement or administrative procedures or personnel shall apply to the Corporation, its activities, board members, officers, or employees, except as otherwise provided for in this subchapter.

(1) Notwithstanding any other provisions of this section, the Corporation shall select the underwriter or placement agent for the Bonds (not including the Residual Bond) and legal counsel, including bond counsel, by competitive sealed bidding. The contracts shall be awarded on the basis of lowest evaluated bid price (as the term is defined in § 2-351.04(31) ). In evaluating the bids, the following factors shall be considered:

(A) The type of business or organization and its history;

(B) The resumes and professional qualifications of the business or organization’s staff, including relevant professional licenses, affiliations, and specialties;

(C) Information attesting to financial capability, including financial statements;

(D) A summary of similar contracts awarded to the bidder, and the bidder’s performance of those contracts;

(E) A statement attesting to compliance with wage, hour, workplace safety, and other standards of labor law;

(F) A statement attesting to compliance with federal and District equal employment opportunity law; and

(G) Information about pending lawsuits or investigations, and judgments, indictments, or convictions against the bidder or its proprietors, partners, directors, officers, or managers.

(2) The invitation for bids shall state that the selection shall be made on the basis of the lowest evaluated bid price. The Corporation shall provide public notice of the invitation for bids of not less than 10 working days. Public notice of an invitation for bids shall include publication in a newspaper of general circulation, and in trade publications considered to be appropriate by the Corporation to give adequate public notice.

(3) Bids shall be opened publicly at the time and place designated in the invitation for bids. Each bid, with the name of the bidder, shall be recorded and be open to public inspection. The contract shall be awarded with reasonable promptness by written notice to the responsive and responsible bidder whose bid will be most advantageous to the Corporation, considering price and other factors as set forth in paragraph (1) of this subsection.

Legislative History

Oct. 19, 2000, D.C. Law 13-172, § 3704, 47 DCR 6308; Oct. 21, 2000, D.C. Law 13-176, § 8(d)(3), 47 DCR 6835; July 25, 2006, D.C. Law 16-142, § 3(c), 53 DCR 4412; Mar. 14, 2007, D.C. Law 16-294, § 10, 54 DCR 1086; Sept. 26, 2012, D.C. Law 19-171, § 211, 59 DCR 6190