| 1 | A bill to be entitled |
| 2 | An act relating to public depositories; amending s. |
| 3 | 280.02, F.S.; providing additional definitions; amending |
| 4 | s. 280.04, F.S.; revising collateral requirements for |
| 5 | public deposits; amending s. 280.07, F.S.; providing |
| 6 | criteria and procedures for a qualified public depository |
| 7 | to become an electing public depository; providing for |
| 8 | termination of an election to become an electing public |
| 9 | depository; providing authority and duties of the Chief |
| 10 | Financial Officer; amending s. 280.08, F.S.; providing for |
| 11 | application to participating public depositories of |
| 12 | procedures for payment of loss to public depositors; |
| 13 | providing an effective date. |
| 14 |
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| 15 | Be It Enacted by the Legislature of the State of Florida: |
| 16 |
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| 17 | Section 1. Section 280.02, Florida Statutes, is amended to |
| 18 | read: |
| 19 | 280.02 Definitions.-As used in this chapter, the term: |
| 20 | (1) "Affiliate" means an entity that is related through a |
| 21 | parent corporation's controlling interest. The term also |
| 22 | includes any financial institution holding company or any |
| 23 | subsidiary or service corporation of such holding company. |
| 24 | (2) "Alternative participation agreement" means an |
| 25 | agreement of restrictions that a qualified public depository |
| 26 | completes as an alternative to immediately withdrawing from the |
| 27 | public deposits program due to financial condition. |
| 28 | (3) "Average daily balance" means the average daily |
| 29 | balance of public deposits held during the reported month. The |
| 30 | average daily balance must be determined by totaling, by |
| 31 | account, the daily balances held by the depositor and then |
| 32 | dividing the total by the number of calendar days in the month. |
| 33 | Deposit insurance is then deducted from each account balance and |
| 34 | the resulting amounts are totaled to obtain the average daily |
| 35 | balance. |
| 36 | (4) "Average monthly balance" means the average monthly |
| 37 | balance of public deposits held, before deducting deposit |
| 38 | insurance, by the depository during any 12 calendar months. The |
| 39 | average monthly balance of the previous 12 calendar months must |
| 40 | be determined by adding the average daily balance before |
| 41 | deducting deposit insurance for the reported month and the |
| 42 | average daily balances before deducting deposit insurance for |
| 43 | the 11 months preceding that month and dividing the total by 12. |
| 44 | (5) "Book-entry form" means that securities are not |
| 45 | represented by a paper certificate but represented by an account |
| 46 | entry on the records of a depository trust clearing system or, |
| 47 | in the case of United States Government securities, a Federal |
| 48 | Reserve Bank. |
| 49 | (6) "Capital account" means total equity capital, as |
| 50 | defined on the balance-sheet portion of the Consolidated Reports |
| 51 | of Condition and Income (call report) or the Thrift Financial |
| 52 | Report, less intangible assets, as submitted to the regulatory |
| 53 | banking authority. |
| 54 | (7) "Collateral-pledging level," for qualified public |
| 55 | depositories, means the percentage of collateral required to be |
| 56 | pledged as provided in s. 280.04 by a financial institution. |
| 57 | (8) "Current month" means the month immediately following |
| 58 | the month for which the monthly report is due from qualified |
| 59 | public depositories. |
| 60 | (9) "Custodian" means the Chief Financial Officer or any |
| 61 | bank, savings association, or trust company that: |
| 62 | (a) Is organized and existing under the laws of this |
| 63 | state, any other state, or the United States; |
| 64 | (b) Has executed all forms required under this chapter or |
| 65 | any rule adopted hereunder; |
| 66 | (c) Agrees to be subject to the jurisdiction of the courts |
| 67 | of this state, or of courts of the United States which are |
| 68 | located within this state, for the purpose of any litigation |
| 69 | arising out of this chapter; and |
| 70 | (d) Has been approved by the Chief Financial Officer to |
| 71 | act as a custodian. |
| 72 | (10) "Default or insolvency" includes, without limitation, |
| 73 | the failure or refusal of a qualified public depository to pay |
| 74 | any check or warrant drawn upon sufficient and collected funds |
| 75 | by any public depositor or to return any deposit on demand or at |
| 76 | maturity together with interest as agreed; the issuance of an |
| 77 | order by any supervisory authority restraining such depository |
| 78 | from making payments of deposit liabilities; or the appointment |
| 79 | of a receiver for such depository. |
| 80 | (11) "Effective date of notice of withdrawal or order of |
| 81 | discontinuance" pursuant to s. 280.11(3) means that date which |
| 82 | is set out as such in any notice of withdrawal or order of |
| 83 | discontinuance from the Chief Financial Officer. |
| 84 | (12) "Electing public depository" means a qualified public |
| 85 | depository that has made the election under s. 280.07(2) and is |
| 86 | in compliance with the collateral requirements of s. 280.04. |
| 87 | (13)(12) "Eligible collateral" means securities, Federal |
| 88 | Home Loan Bank letters of credit, and cash, as designated in s. |
| 89 | 280.13. |
| 90 | (14)(13) "Financial institution" means, including, but not |
| 91 | limited to, an association, bank, brokerage firm, credit union, |
| 92 | industrial savings bank, savings and loan association, trust |
| 93 | company, or other type of financial institution organized under |
| 94 | the laws of this state or any other state of the United States |
| 95 | and doing business in this state or any other state, in the |
| 96 | general nature of the business conducted by banks and savings |
| 97 | associations. |
| 98 | (15)(14) "Governmental unit" means the state or any |
| 99 | county, school district, community college district, special |
| 100 | district, metropolitan government, or municipality, including |
| 101 | any agency, board, bureau, commission, and institution of any of |
| 102 | such entities, or any court. |
| 103 | (16)(15) "Loss to public depositors" means loss of all |
| 104 | principal and all interest or other earnings on the principal |
| 105 | accrued or accruing as of the date the qualified public |
| 106 | depository was declared in default or insolvent. |
| 107 | (17)(16) "Market value" means the value of collateral |
| 108 | calculated pursuant to s. 280.04. |
| 109 | (18)(17) "Operating subsidiary" means the qualified public |
| 110 | depository's 100-percent owned corporation that has ownership of |
| 111 | pledged collateral. The operating subsidiary may have no powers |
| 112 | beyond those that its parent qualified public depository may |
| 113 | itself exercise. The use of an operating subsidiary is at the |
| 114 | discretion of the qualified public depository and must meet the |
| 115 | Chief Financial Officer's requirements. |
| 116 | (19)(18) "Oversight board" means the qualified public |
| 117 | depository oversight board created in s. 280.071 for the purpose |
| 118 | of safeguarding the integrity of the public deposits program and |
| 119 | preventing the realization of loss assessments through |
| 120 | standards, policies, and recommendations for actions to the |
| 121 | Chief Financial Officer. |
| 122 | (20) "Participating public depository" means a qualified |
| 123 | public depository that is not an electing public depository on |
| 124 | the date the Chief Financial Officer determines the qualified |
| 125 | public depository to be in default or insolvent. |
| 126 | (21)(19) "Pledged collateral" means securities or cash |
| 127 | held separately and distinctly by an eligible custodian for the |
| 128 | benefit of the Chief Financial Officer to be used as security |
| 129 | for Florida public deposits. This includes maturity and call |
| 130 | proceeds. |
| 131 | (22)(20) "Pledgor" means the qualified public depository |
| 132 | and, if one is used, operating subsidiary. |
| 133 | (23)(21) "Pool figure" means the total average monthly |
| 134 | balances of public deposits held by all qualified public |
| 135 | depositories during the immediately preceding 12-month period. |
| 136 | (24)(22) "Previous month" means the month or months |
| 137 | immediately preceding the month for which a monthly report is |
| 138 | due from qualified public depositories. |
| 139 | (25)(23) "Public deposit" means the moneys of the state or |
| 140 | of any state university, county, school district, community |
| 141 | college district, special district, metropolitan government, or |
| 142 | municipality, including agencies, boards, bureaus, commissions, |
| 143 | and institutions of any of the foregoing, or of any court, and |
| 144 | includes the moneys of all county officers, including |
| 145 | constitutional officers, that are placed on deposit in a bank, |
| 146 | savings bank, or savings association and for which the bank, |
| 147 | savings bank, or savings association is required to maintain |
| 148 | reserves. This includes, but is not limited to, time deposit |
| 149 | accounts, demand deposit accounts, and nonnegotiable |
| 150 | certificates of deposit. Moneys in deposit notes and in other |
| 151 | nondeposit accounts such as repurchase or reverse repurchase |
| 152 | operations are not public deposits. Securities, mutual funds, |
| 153 | and similar types of investments are not considered public |
| 154 | deposits and shall not be subject to the provisions of this |
| 155 | chapter. |
| 156 | (26)(24) "Public depositor" means the official custodian |
| 157 | of funds for a governmental unit who is responsible for handling |
| 158 | public deposits. |
| 159 | (27)(25) "Public deposits program" means the Florida |
| 160 | Security for Public Deposits Act contained in this chapter and |
| 161 | any rule adopted under this chapter. |
| 162 | (28)(26) "Qualified public depository" means any bank, |
| 163 | savings bank, or savings association that: |
| 164 | (a) Is organized and exists under the laws of the United |
| 165 | States, the laws of this state or any other state or territory |
| 166 | of the United States. |
| 167 | (b) Has its principal place of business in this state or |
| 168 | has a branch office in this state which is authorized under the |
| 169 | laws of this state or of the United States to receive deposits |
| 170 | in this state. |
| 171 | (c) Has deposit insurance under the provision of the |
| 172 | Federal Deposit Insurance Act, as amended, 12 U.S.C. ss. 1811 et |
| 173 | seq. |
| 174 | (d) Has procedures and practices for accurate |
| 175 | identification, classification, reporting, and collateralization |
| 176 | of public deposits. |
| 177 | (e) Meets all the requirements of this chapter. |
| 178 | (f) Has been designated by the Chief Financial Officer as |
| 179 | a qualified public depository. |
| 180 | (29)(27) "Reported month" means the month for which a |
| 181 | monthly report is due from qualified public depositories. |
| 182 | (30)(28) "Required collateral" of a qualified public |
| 183 | depository means eligible collateral having a market value equal |
| 184 | to or in excess of the amount required pursuant to s. 280.04. |
| 185 | (31)(29) "Chief Financial Officer's custody" is a |
| 186 | collateral arrangement governed by a contract between a |
| 187 | designated Chief Financial Officer's custodian and the Chief |
| 188 | Financial Officer. This arrangement requires collateral to be in |
| 189 | the Chief Financial Officer's name in order to perfect the |
| 190 | security interest. |
| 191 | (32)(30) "Triggering events" are events set out in s. |
| 192 | 280.041 which give the Chief Financial Officer the right to: |
| 193 | (a) Instruct the custodian to transfer securities pledged, |
| 194 | interest payments, and other proceeds of pledged collateral not |
| 195 | previously credited to the pledgor. |
| 196 | (b) Demand payment under letters of credit. |
| 197 | Section 2. Subsection (1) of section 280.04, Florida |
| 198 | Statutes, is amended, and paragraph (g) is added to subsection |
| 199 | (2) of that section, to read: |
| 200 | 280.04 Collateral for public deposits; general |
| 201 | provisions.- |
| 202 | (1) The Chief Financial Officer shall determine the |
| 203 | collateral requirements and collateral pledging level for each |
| 204 | qualified public depository following procedures established by |
| 205 | rule. These procedures shall include numerical parameters for |
| 206 | 25-percent, 50-percent, 110-percent, 125-percent, and 200- |
| 207 | percent pledge levels based on nationally recognized financial |
| 208 | rating services information and established financial |
| 209 | performance guidelines. |
| 210 | (2) A qualified public depository may not accept or retain |
| 211 | any public deposit which is required to be secured unless it has |
| 212 | deposited with the Chief Financial Officer eligible collateral |
| 213 | at least equal to the greater of: |
| 214 | (g) One hundred percent of the average daily balance of |
| 215 | public deposits if the qualified public depository is an |
| 216 | electing public depository. |
| 217 | Section 3. Section 280.07, Florida Statutes, is amended to |
| 218 | read: |
| 219 | 280.07 Mutual responsibility and contingent liability.- |
| 220 | (1) Any bank or savings association that is designated as |
| 221 | a participating qualified public depository and that is not |
| 222 | insolvent shall guarantee public depositors against loss caused |
| 223 | by the default or insolvency of other qualified public |
| 224 | depositories. Each participating qualified public depository |
| 225 | shall execute a form prescribed by the Chief Financial Officer |
| 226 | for such guarantee which shall be approved by the board of |
| 227 | directors and shall become an official record of the |
| 228 | institution. |
| 229 | (2) A qualified public depository becomes an electing |
| 230 | public depository upon written notice to the Chief Financial |
| 231 | Officer that the depository desires to be classified as an |
| 232 | electing public depository and complies with the collateral |
| 233 | requirements of s. 280.04 for an electing public depository. An |
| 234 | electing public depository is not subject to the cross-guaranty |
| 235 | pool requirements of a participating public depository, and any |
| 236 | security agreement, guarantee, or other agreement with the Chief |
| 237 | Financial Officer to the contrary shall be suspended while the |
| 238 | qualified public depository is an electing public depository. A |
| 239 | qualified public depository that makes the election shall be |
| 240 | treated as a participating public depository at any time it is |
| 241 | not in compliance with the collateral requirements of s. 280.04 |
| 242 | applicable to an electing public depository. |
| 243 | (3) An electing public depository may terminate its |
| 244 | election and reenter the cross-guaranty pool by written notice |
| 245 | to the Chief Financial Officer. The Chief Financial Officer may |
| 246 | deny revocation of the election and reentry into the cross- |
| 247 | guaranty pool after considering the electing public depository's |
| 248 | level of capitalization, credit rating, or other bank-health |
| 249 | related factors. Upon revocation of the election, the Chief |
| 250 | Financial Officer shall release any excess collateral applicable |
| 251 | to the electing public depository's status. |
| 252 | Section 4. Subsections (3) and (4) of section 280.08, |
| 253 | Florida Statutes, are amended to read: |
| 254 | 280.08 Procedure for payment of losses.-When the Chief |
| 255 | Financial Officer determines that a default or insolvency has |
| 256 | occurred, he or she shall provide notice as required in s. |
| 257 | 280.085 and implement the following procedures: |
| 258 | (3)(a) The loss to public depositors shall be satisfied, |
| 259 | insofar as possible, first through any applicable deposit |
| 260 | insurance and then through demanding payment under letters of |
| 261 | credit or the sale of collateral pledged or deposited by the |
| 262 | defaulting depository. The Chief Financial Officer may assess |
| 263 | participating qualified public depositories as provided in |
| 264 | paragraph (b) for the total loss if the demand for payment or |
| 265 | sale of collateral cannot be accomplished within 7 business |
| 266 | days. |
| 267 | (b) The Chief Financial Officer shall provide coverage of |
| 268 | any remaining loss by assessment against the other participating |
| 269 | qualified public depositories. The Chief Financial Officer shall |
| 270 | determine such assessment for each participating qualified |
| 271 | public depository by multiplying the total amount of any |
| 272 | remaining loss to all public depositors by a percentage which |
| 273 | represents the average monthly balance of public deposits held |
| 274 | by each participating qualified public depository during the |
| 275 | previous 12 months divided by the total average monthly balances |
| 276 | of public deposits held by all participating qualified public |
| 277 | depositories, excluding the defaulting depository, during the |
| 278 | same period. The assessment calculation shall be computed to six |
| 279 | decimal places. |
| 280 | (4) Each participating qualified public depository shall |
| 281 | pay its assessment to the Chief Financial Officer within 7 |
| 282 | business days after it receives notice of the assessment. If a |
| 283 | depository fails to pay its assessment when due, the Chief |
| 284 | Financial Officer shall satisfy the assessment by demanding |
| 285 | payment under letters of credit or selling collateral pledged or |
| 286 | deposited by that depository. |
| 287 | Section 5. This act shall take effect July 1, 2010. |