MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Ways and Means
By: Representatives Lamar, White, Clark
AN ACT TO AMEND SECTION 7, CHAPTER 483, LAWS OF 2022, TO INCREASE THE AMOUNT OF STATE REVENUE BONDS THAT MAY BE ISSUED TO PROVIDE FUNDS FOR THE ABC WAREHOUSE CONSTRUCTION FUND TO ASSIST IN PAYING THE COSTS ASSOCIATED WITH LAND ACQUISITION FOR, AND THE DESIGN, CONSTRUCTION, FURNISHING AND EQUIPPING OF A NEW WAREHOUSE FOR THE DEPARTMENT OF REVENUE'S ALCOHOLIC BEVERAGE CONTROL DIVISION; TO AMEND SECTION 27-71-11, MISSISSIPPI CODE OF 1972, TO INCREASE THE AMOUNT OF THE BAILMENT FEE CHARGED BY THE DEPARTMENT OF REVENUE ON CASES OF STORED ALCOHOLIC BEVERAGES FOR THE PURPOSE OF PROVIDING FUNDS FOR THE PAYMENT OF THE DEBT SERVICE ON SUCH BONDS; TO AMEND SECTION 67-1-203, TO PROVIDE THAT THE DEPARTMENT OF FINANCE AND ADMINISTRATION SHALL SELECT A SITE AT THE HOLMES COUNTY INDUSTRIAL PARK IN HOLMES COUNTY, MISSISSIPPI, FOR THE CONSTRUCTION OF A NEW WAREHOUSE FOR THE DEPARTMENT OF REVENUE'S ALCOHOLIC BEVERAGE CONTROL DIVISION WAREHOUSE, AND THAT A CONTRACT FOR WAREHOUSE CONSTRUCTION SHALL BE ENTERED INTO NOT LATER THAN SEPTEMBER 1, 2024; TO AMEND SECTION 67-1-205, MISSISSIPPI CODE OF 1972, TO REVISE CERTAIN PROVISIONS REGARDING THE OPERATION OF THE WAREHOUSE FOR THE DEPARTMENT OF REVENUE'S ALCOHOLIC BEVERAGE CONTROL DIVISION; TO BRING FORWARD SECTION 67-1-209, MISSISSIPPI CODE OF 1972, WHICH RELATES TO THE WAREHOUSE FOR THE DEPARTMENT OF REVENUE'S ALCOHOLIC BEVERAGE CONTROL DIVISION, FOR THE PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 7, Chapter 483, Laws of 2022, is amended as follows:
Section 7. Revenue bonds. (1) As used in this section, the following words shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Accreted value" of any bond means, as of any date of computation, an amount equal to the sum of (i) the stated initial value of such bond, plus (ii) the interest accrued thereon from the issue date to the date of computation at the rate, compounded semiannually, that is necessary to produce the approximate yield to maturity shown for bonds of the same maturity.
(b) "State" means the State of Mississippi.
(c) "Commission" means the State Bond Commission.
(2) (a) Monies deposited into the ABC Warehouse Construction Fund created in Section 6(1) of this act shall be disbursed, in the discretion of the Department of Finance and Administration, to assist in paying the costs associated with land acquisition for, and the design, construction, furnishing and equipping of, a new warehouse for the Department of Revenue's Alcoholic Beverage Control Division.
(b) Amounts deposited into the ABC Warehouse Construction Fund created in Section 6(1) of this act shall be disbursed to pay the costs of the projects described in paragraph (a) of this subsection. Promptly after the commission has certified, by resolution duly adopted, that the projects described in paragraph (a) of this subsection have been completed, abandoned, or cannot be completed in a timely fashion, any amounts remaining in such special fund shall be applied to pay debt service on the bonds issued under this section, in accordance with the proceedings authorizing the issuance of such bonds and as directed by the commission.
(4) (a) The
commission, at one time, or from time to time, may declare by resolution the
necessity for issuance of revenue bonds of the State of Mississippi to provide funds
for all costs incurred or to be incurred for the purposes described in
subsection (2) of this section. Upon the adoption of a resolution by the
Department of Finance and Administration, declaring the necessity for the
issuance of any part or all of the revenue bonds authorized by this subsection,
the Department of Finance and Administration shall deliver a certified copy of its
resolution or resolutions to the commission. Upon receipt of such resolution,
the commission, in its discretion, may act as the issuing agent, prescribe the
form of the bonds, determine the appropriate method for sale of the bonds,
advertise for and accept bids or negotiate the sale of the bonds, issue and
sell the bonds so authorized to be sold, and do any and all other things
necessary and advisable in connection with the issuance and sale of such bonds.
The total amount of bonds issued under this section shall not exceed * * *
Ninety-five Million Dollars ($95,000,000.00).
(b) Any investment earnings on amounts deposited into the ABC Warehouse Construction Fund created in Section 6(1) of this act shall be used to pay debt service on bonds issued under this section, in accordance with the proceedings authorizing issuance of such bonds.
(5) The principal of and interest on the bonds authorized under this section shall be payable in the manner provided in this subsection. Such bonds shall bear such date or dates, be in such denomination or denominations, bear interest at such rate or rates (not to exceed the limits set forth in Section 75-17-101, Mississippi Code of 1972), be payable at such place or places within or without the State of Mississippi, shall mature absolutely at such time or times not to exceed twenty-five (25) years from date of issue, be redeemable before maturity at such time or times and upon such terms, with or without premium, shall bear such registration privileges, and shall be substantially in such form, all as shall be determined by resolution of the commission.
(6) The bonds authorized by this section shall be signed by the chairman of the commission, or by his facsimile signature, and the official seal of the commission shall be affixed thereto, attested by the secretary of the commission. The interest coupons, if any, to be attached to such bonds may be executed by the facsimile signatures of such officers. Whenever any such bonds have been signed by the officials designated to sign the bonds who were in office at the time of such signing, but who may have ceased to be such officers before the sale and delivery of such bonds, or who may not have been in office on the date such bonds may bear, the signatures of such officers upon such bonds and coupons shall nevertheless be valid and sufficient for all purposes and have the same effect as if the person so officially signing such bonds had remained in office until their delivery to the purchaser, or had been in office on the date such bonds may bear. However, notwithstanding anything herein to the contrary, such bonds may be issued as provided in the Registered Bond Act of the State of Mississippi.
(7) All bonds and interest coupons issued under the provisions of this section have all the qualities and incidents of negotiable instruments under the provisions of the Uniform Commercial Code, and in exercising the powers granted by this section, the commission shall not be required to and need not comply with the provisions of the Uniform Commercial Code.
(8) The commission shall act as issuing agent for the bonds authorized under this section, prescribe the form of the bonds, determine the appropriate method for sale of the bonds, advertise for and accept bids or negotiate the sale of the bonds, issue and sell the bonds so authorized to be sold, pay all fees and costs incurred in such issuance and sale, and do any and all other things necessary and advisable in connection with the issuance and sale of such bonds. The commission is authorized and empowered to pay the costs that are incident to the sale, issuance and delivery of the bonds authorized under this section from the proceeds derived from the sale of such bonds. The commission may sell such bonds on sealed bids at public sale or may negotiate the sale of the bonds for such price as it may determine to be for the best interest of the State of Mississippi. All interest accruing on such bonds so issued shall be payable semiannually or annually.
If such bonds are sold by sealed bids at public sale, notice of the sale shall be published at least one time, not less than ten (10) days before the date of sale, and shall be so published in one or more newspapers published or having a general circulation in the City of Jackson, Mississippi, selected by the commission.
The commission, when issuing any bonds under the authority of this section, may provide that bonds, at the option of the State of Mississippi, may be called in for payment and redemption at the call price named therein and accrued interest on such date or dates named therein.
(9) The bonds issued under the provisions of this section shall be revenue bonds of the state, the principal of and interest on which shall be payable solely from and shall be secured by the special bond sinking fund created in subsection (3) of this section. The bonds shall never constitute an indebtedness of the state within the meaning of any state constitutional provision or statutory limitation, and shall never constitute or give rise to a pecuniary liability of the state, or a charge against its general credit or taxing powers, and such fact shall be plainly stated on the face of each such bond. The bonds shall not be considered when computing any limitation of indebtedness of the state. All bonds issued under the authority of this section and all interest coupons applicable thereto shall be construed to be negotiable instruments, despite the fact that they are payable solely from a specified source.
(10) Upon the issuance and sale of bonds under the provisions of this section, the commission shall transfer the proceeds of any such sale or sales to the ABC Warehouse Construction Fund created in Section 6(1) of this act. The proceeds of such bonds shall be disbursed solely upon the order of the Department of Finance and Administration under such restrictions, if any, as may be contained in the resolution providing for the issuance of the bonds.
(11) The bonds authorized under this section may be issued without any other proceedings or the happening of any other conditions or things other than those proceedings, conditions and things which are specified or required by this section. Any resolution providing for the issuance of bonds under the provisions of this section shall become effective immediately upon its adoption by the commission, and any such resolution may be adopted at any regular or special meeting of the commission by a majority of its members.
(12) The bonds authorized under the authority of this section may be validated in the Chancery Court of the First Judicial District of Hinds County, Mississippi, in the manner and with the force and effect provided by Title 31, Chapter 13, Mississippi Code of 1972, for the validation of county, municipal, school district and other bonds. The notice to taxpayers required by such statutes shall be published in a newspaper published or having a general circulation in the City of Jackson, Mississippi.
(13) Any holder of bonds issued under the provisions of this section or of any of the interest coupons pertaining thereto may, either at law or in equity, by suit, action, mandamus or other proceeding, protect and enforce any and all rights granted under this section, or under such resolution, and may enforce and compel performance of all duties required by this section to be performed, in order to provide for the payment of bonds and interest thereon.
(14) All bonds issued under the provisions of this section shall be legal investments for trustees and other fiduciaries, and for savings banks, trust companies and insurance companies organized under the laws of the State of Mississippi, and such bonds shall be legal securities which may be deposited with and shall be received by all public officers and bodies of this state and all municipalities and political subdivisions for the purpose of securing the deposit of public funds.
(15) Bonds issued under the provisions of this section and income therefrom shall be exempt from all taxation in the State of Mississippi.
(16) The proceeds of the bonds issued under this section shall be used solely for the purposes herein provided, including the costs incident to the issuance and sale of such bonds.
(17) The State Treasurer is authorized, without further process of law, to certify to the Department of Finance and Administration the necessity for warrants. The Department of Finance and Administration is authorized and directed to issue such warrants, in such amounts as may be necessary to pay when due the principal of, premium, if any, and interest on, or the accreted value of, all bonds issued under this section. The State Treasurer shall forward the necessary amount to the designated place or places of payment of such bonds in ample time to discharge such bonds, or the interest thereon, on the due dates thereof.
(18) This section shall be deemed to be full and complete authority for the exercise of the powers herein granted, but this section shall not be deemed to repeal or to be in derogation of any existing law of this state.
SECTION 2. Section 27-71-11, Mississippi Code of 1972, is amended as follows:
27-71-11. (1) The department shall from time to time by resolution request the State Bond Commission to provide sufficient funds required to maintain an adequate alcoholic beverage inventory. Said funds shall be provided under the provisions of Chapter 557, Laws of 1966.
(2) The department shall add to the cost of all alcoholic beverages a markup of twenty-seven and one-half percent (27-1/2%), inclusive of the three percent (3%) markup imposed by Section 27-71-7(2).
(3) In addition to other excise taxes and markups imposed in this section and in Section 27-71-7, the department shall add to the cost of all alcoholic beverages shipped a charge of Twenty-five Cents (25˘) per case, to be deposited into the ABC Warehouse Improvements Fund created in Section 67-1-211(2). However, any unobligated amounts above Ten Million Dollars ($10,000,000.00) remaining in the ABC Warehouse Improvements Fund at the end of a fiscal year shall be transferred to the State General Fund.
(4) Notwithstanding the contract for warehouse and distribution operations under Section 67-1-205, the department shall remain responsible for purchasing and selling alcoholic beverages. The department shall sell alcoholic beverages at uniform prices throughout the state. Pricing for all alcoholic beverages shall be set by the addition of the markup and taxes to the price at which the beverages were purchased by the department.
(5) A permittee's order shall qualify for shipping when it includes the minimum number of cases of alcoholic beverages as set by the department. The department shall place qualifying orders in a queue for shipment in the order in which the orders are made. An order of fewer than the minimum number of cases, and special orders, shall be added to the permittee's next qualified shipment. The department shall give sufficient notice of any change in the minimum number of cases for shipping and shall allow the opportunity for comment.
(6) The department shall set a per-case shipping fee to be charged to permittees. The department shall adjust the fee to match, as closely as possible, the shipping costs as defined in Section 67-1-201. The shipping fee charged under this subsection shall be deposited to the credit of the ABC Shipping Fund created in Section 27-71-29.
(7) The department shall charge
manufacturers a bailment fee of * * * One Dollar and Seventy-three
Cents ($1.73) per case of alcoholic beverages stored in the warehouse, to be
deposited to the credit of the bond sinking fund created in Section 7(3) of
Chapter 483, Laws of 2022.
SECTION 3. Section 67-1-203, Mississippi Code of 1972, is amended as follows:
67-1-203. Warehouse construction. (1) The Department of Finance and Administration, using the monies available in the ABC Warehouse Construction Fund created in Section 67-1-211(1) and such other monies as the Legislature may make available, shall purchase land for and shall provide for the design and construction of a warehouse for the division in the most expedient and cost-effective manner practicable as determined by the Executive Director of the Department of Finance and Administration.
(3) The contract for design and construction shall provide that the operator shall be consulted so that the warehouse may, so far as possible, suit the preferences of the operator in furtherance of effective operations. The contract shall also provide that the design shall aim to fill demand for the next twenty-five (25) years.
(4) A contract for warehouse construction shall not be entered into unless the construction contractor has demonstrated:
(a) The qualifications, experience and management personnel necessary to carry out the terms of the contract;
(b) The ability to comply with applicable federal and state laws; and
(c) The ability to expedite the design and construction of facilities comparable to the warehouse.
(5) A contract for warehouse construction shall be entered into not later than September 1, 2024.
SECTION 4. Section 67-1-205, Mississippi Code of 1972, is amended as follows:
67-1-205. Warehouse and distribution operations. (1) The department shall contract for warehouse and distribution operations. The shipping contract in effect on July 1, 2022, shall remain in effect until the expiration of its term.
(2) The department shall pay regular maintenance expenses and shall reimburse the operator for services performed under the contract out of monies appropriated by the Legislature.
(3) The contract shall include the following terms:
(a) The department shall pay the operator cost-plus on these operations at a set dollar amount per case of alcoholic beverages sold. Otherwise, the contract shall not alter the current cash flow of operations;
(b) The operator shall be allotted a monthly spending limit for occasional improvements. The state may, at any time, review the operator's spending. The operator shall obtain prior state approval for any spending over the monthly limit set in the contract. The contract shall allow the operator to pay out of pocket, in which case the state will reimburse the operator on a monthly basis out of monies in the ABC Warehouse Improvements Fund created in Section 67-1-211(2);
(c) Shipping costs, where the contract encompasses shipping, shall be based on a set dollar amount per case of alcoholic beverages shipped from the warehouse to the permittee's premises;
(d) The department and the operator may provide for the operator's software to interface with the department's TAP system in a manner allowing for information sharing in furtherance of efficient operations while also protecting the security of the TAP system;
(e) The department shall develop quality and efficiency criteria for determining whether to renew a contract for warehouse and distribution operations;
(f) The obligation of the department to proceed under the contract is conditioned upon the appropriation of funds by the Legislature and the receipt of state or federal funds. If the funds anticipated for the continuing time fulfillment of the agreement are, at any time, not forthcoming or insufficient, either through the failure of the federal government to provide funds or of the State of Mississippi to appropriate funds, or the discontinuance or material alteration of the program under which funds were provided, or if funds are not otherwise available to the department, the department shall have the right, upon ten (10) working days' written notice to the operator, to terminate this agreement without damage, penalty, cost or other expenses to the department of any kind whatsoever. The effective date of termination shall be as specified in the notice of termination;
(g) The state and the operator as parties to the contract and all terms of the contract shall be subject to and governed by the laws of the state at the time the contract is entered into, and any later amendments to such laws, through the duration of the contract; and
(h) The operator shall be required to comply with any duties, responsibilities, conditions or other provisions required by state law during the duration of the contract, regardless of whether such duties, responsibilities, conditions or other provisions were required by state law at the time the contract was entered into.
(5) The contract shall provide that all employees needed for operations shall be employees of the operator. Unless otherwise provided for in the contract in existence on the effective date of this act, employees of the operator needed for operations shall work no less than five (5) days a week. In addition, any contract entered into or renewed on or after the effective date of this act, shall provide that employees of the operator needed for operations shall work no less than five (5) days a week.
(6) A contract for warehouse and distribution operations shall not be entered into unless the operator has demonstrated:
(a) The qualifications, experience and management personnel necessary to carry out the terms of the contract; and
(b) The ability to comply with applicable federal and state laws.
(7) A contract for operations shall not be entered into unless the following requirements are met:
(a) In addition to fire and casualty insurance, the operator provides at least Ten Million Dollars ($10,000,000.00) of liability insurance. The liability insurance shall be issued by an insurance company with a rating of at least an A- according to AM Best standards. In determining the adequacy of such insurance, the Department of Finance and Administration shall determine whether:
(i) The insurance is adequate to protect the state from any and all actions by a third party against the operator or the state as a result of the contract;
(ii) The insurance is adequate to protect the state against any and all claims arising as a result of any occurrence during the term of the contract;
(iii) The insurance is adequate to assure the operator's ability to fulfill its contract with the state in all respects, and to assure that the operator is not limited in this ability because of financial liability which results from judgments; and
(iv) The insurance is adequate to satisfy such other requirements specified by the independent risk management/actuarial firm.
(b) The sovereign immunity of the state shall not apply to the operator. Neither the operator nor the operator's insurer may plead the defense of sovereign immunity in any action arising out of the performance of the contract.
(c) The operator shall post a performance bond to assure the operator's faithful performance of the specifications and conditions of the contract. The bond is required throughout the term of the contract. The terms and conditions must be approved by the department and the Department of Finance and Administration, and such approval is a condition precedent to the contract taking effect.
(d) The operator shall defend any suit or claim brought against the state arising out of any act or omission in operations, and shall hold the state harmless from such claim or suit. The operator shall be solely responsible for the payment of any legal or other costs relative to any such claim or suit. The operator shall reimburse the state for any costs that it may incur as a result of such claim or suit immediately upon being submitted a statement therefor by the Attorney General.
Any suit brought or claim made arising out of any act or omission in operations shall be made or brought against the operator and not the state.
The Attorney General retains all rights and emoluments of his or her office which include direction and control over any litigation or claim involving the state.
(8) From and after the effective date of this act, the department shall not take any action or exercise any authority relating to the operation, distribution activities or management of the warehouse that is in service on the effective date of this act.
SECTION 5. Section 67-1-209, Mississippi Code of 1972, is brought forward as follows:
67-1-209. Contract compliance officer. (1) The commissioner shall designate an employee of the department as a contract compliance officer within the department who shall monitor the contract between the state and the operator for warehouse and distribution operations, and shall assure operator compliance with its performance work statement.
(2) The contract compliance officer shall be responsible for monitoring all aspects of the warehouse. The officer shall be provided an on-site work area, shall be on site on a daily basis, and shall have access to all areas of the warehouse and staff at all times. The operator shall provide any and all data, reports and other materials that the contract compliance officer determines are necessary to carry out monitoring responsibilities under this section.
(3) The contract compliance officer shall report at least annually, or as requested, to the Governor and the Legislature.
SECTION 6. This act shall take effect and be in force from and after its passage.