Introduced Version
House Bill 2411 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2411
(By Delegates Boggs and D. Campbell)
[Introduced February 13, 2013; referred to the
Committee on Finance.]
A BILL to amend and reenact §31-15A-2 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto
sixteen new sections, designated §31-15A-9a, §31-15A-9b,
§31-15A-10a, §31-15A-11a, §31-15A-12a, §31-15A-13a,
§31-15A-14a, §31-15A-15a, §31-15A-17c, §31-15A-18a,
§31-15A-19a, §31-15A-20a, §31-15A-21a, §31-15A-22a,
§31-15A-23a and §31-15A-24a, all relating generally to
development of broadband middle mile infrastructure in the
state; defining new terms; creating a separate infrastructure
fund for broadband middle mile infrastructure projects;
providing for deposits and expenditures; setting forth
additional powers to Infrastructure and Jobs Development
Council and Water Development Authority; creating a committee
to advise Infrastructure and Jobs Development Council on
disposition of applications for grants and loans; providing a process for review of applications by Development Office;
requiring notice of public hearing on applications for grants
and loans; providing for hearings and public comment period;
creating the Infrastructure Fund for Broadband Middle Mile
Infrastructure Revenue Debt Service Fund; providing for the
disposition of funds on termination or dissolution of the
authority; providing that broadband middle mile projects
funded by authority are public improvements; authorizing the
issuance of broadband middle mile revenue bonds; creating the
Broadband Middle Mile Infrastructure Debt Service Fund;
providing for funding of debt service fund; specifying the
requirements for the issuance of bonds; providing for contents
of trust agreement and trustee for bonds; specifying the
remedies available to bondholders, noteholders and trustee;
making broadband middle mile infrastructure revenue bonds
lawful investments; providing for purchase, cancellation and
refunding of bonds; and declares that bonds are not state
debts and are exempt from taxation.
Be it enacted by the Legislature of West Virginia:
That §31-15A-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto sixteen new sections, designated §31-15A-9a, §31-15A-9b,
§31-15A-10a, §31-15A-11a, §31-15A-12a, §31-15A-13a, §31-15A-14a,
§31-15A-15a, §31-15A-17c, §31-15A-18a, §31-15A-19a, §31-15A-20a, §31-15A-21a, §31-15A-22a, §31-15A-23a and §31-15A-24a, all to read
as follows:
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-2. Definitions.
For purposes of this article:
(a) General. -- When used in this article, words defined in
subsection (b) of this section have the meaning ascribed to them in
this section, except in those instances where a different meaning
is distinctly expressed or the context in which the word is used
clearly that a different meaning is intended.
__________(b) Definitions. --
__________(1) "Bond" or "infrastructure revenue bond" means a revenue
bond, note, or other obligation issued by the water development
authority pursuant to this article, including bonds to refund such
bonds and notes to renew such notes, and notes in anticipation of
and payable from the proceeds of such bonds;
(2) "Broadband infrastructure" means all facilities, hardware
and software and other intellectual property necessary to provide
broadband services in this state, including, but not limited to,
voice, video and data services;
__________(3) "Broadband infrastructure project" means any middle mile
project that deploys equipment, fiber optic cables, facilities, or other technologies necessary to provide broadband transport
services: Provided, That nothing in this article may be construed
to provide the Infrastructure and Jobs Development Council
jurisdiction or oversight over broadband infrastructure projects
for the sole use of homeland security agencies in this state.
__________(4) "Broadband infrastructure revenue bond" means a revenue
bond, note, or other obligation issued by the West Virginia
Infrastructure and Jobs Development Council pursuant to this
article to fund one or more broadband middle mile infrastructure
projects, including bonds to refund such bonds and notes to renew
such notes, and notes in anticipation of and payable from the
proceeds of such bonds;
__________(5) "Broadband revenue" means all amounts deposited into the
Infrastructure Fund for Broadband Middle Mile Development; any
amounts received directly or indirectly from any source for the use
of all or any part of any broadband project completed pursuant to
this article and any other amounts received by the Water
Development Authority for the purpose of broadband middle mile
development, including the repayments of any loans made for
broadband projects.
__________(b) (6) "Code" means the Code of West Virginia, 1931, as
amended;
(c) (7) "Cost" means, as applied to any project to be
financed, in whole or in part, with infrastructure revenues or funds otherwise provided pursuant to this article, the cost of
planning, acquisition, improvement and construction of the project;
the cost of preliminary design and analysis, surveys, borings; the
cost of environmental, financial, market and engineering
feasibility studies, assessments, applications, approvals,
submissions or clearances; the cost of preparation of plans and
specifications and other engineering services; the cost of
acquisition of all land, rights-of-way, property rights, easements,
franchise rights and any other interests required for the
acquisition, repair, improvement or construction of the project;
the cost of demolishing or removing any buildings or structures on
land so acquired, including the cost of acquiring any lands to
which buildings or structures may be moved; the cost of excavation,
grading, shaping or treatment of earth, demolishing or removing any
buildings or structures; the cost of constructing any buildings or
other improvements; the cost of all pumps, tanks, vehicles,
apparatus and other machinery, furnishings and equipment; loan or
origination fees and all finance charges and interest incurred
prior to and during the construction and for no more than six
months after completion of construction; the cost of all legal
services and expenses; the cost of all plans, specifications,
surveys and estimates of cost; all working capital and other
expenses necessary or incident to determining the feasibility or
practicability of acquiring, repairing, improving or constructing any project; the cost of placing any project in operation; and all
other costs and expenses of any kind or nature incurred or to be
incurred by the project sponsor developing the project that are
reasonable and necessary for carrying out all works and
undertakings necessary or incident to the accomplishment of any
project: Provided, That costs shall may not include any amounts
related to the ongoing operations of the owner or operator,
depreciation thereof or any other cost which the council, or the
Water Development Authority has not determined to be consistent
with the purposes and objectives of this article;
(d) (8) "Council" means the West Virginia infrastructure and
jobs development council created in section three of this article;
(9) "Department of Administration" means the Department of
Administration established under article one, chapter five-a of
this code, or any successor to all or any substantial part of its
powers and duties;
__________(e) (10) "Division Department of Environmental Protection"
means the Division Department of Environmental Protection
established under article one, chapter twenty-two of this code, or
any successor to all or any substantial part of its powers and
duties;
(f) (11) "Division of Health" means the Division of Health
created in article one, chapter sixteen of this code, or any
successor to all or any substantial part of its powers and duties;
(g) (12) "Economic development authority" means the economic
development authority established under article fifteen, chapter
thirty-one of the code, or any successor to all or any substantial
part of its powers and duties;
(h) (13) "Emergency project" means a project which the council
has determined: (1) Is essential to the immediate economic
development of an area of the state; and (2) will not likely be
developed in that area if construction of the project is not
commenced immediately;
(I) (14) "Governmental agency" means any county; municipality;
watershed improvement district; assessment district; soil
conservation district; sanitary district; public service district;
drainage district; regional governmental authority and any other
state governmental agency, entity, political subdivision or public
corporation or agency authorized to acquire, construct or operate
water or wastewater facilities or broadband middle mile
infrastructure projects;
(j) (15) "Housing Development Fund" means the West Virginia
Housing Development Fund established under article eighteen of this
chapter, or any successor to all or any substantial part of its
powers and duties;
(16) "Includes" and "including", when used in this article, do
not exclude other things otherwise within the definition or the
sentence in which the term is used;
__________(k) (17) "Infrastructure Fund" means the West Virginia
Infrastructure Fund created and established in section nine of this
article;
(l) (18) "Infrastructure project" means a project in the state
which the council determines is likely to foster and enhance
economic growth and development in the area of the state in which
the project is developed, for commercial, industrial, community
improvement or preservation or other proper purposes, including,
without limitation, tourism and recreational housing, land, air or
water transportation facilities and bridges, industrial or
commercial projects and facilities, mail order, warehouses,
wholesale and retail sales facilities, and other real and personal
properties, including facilities owned or leased by this state or
any other project sponsor, and includes, without limitation: (1)
The process of acquiring, holding, operating, planning, financing,
demolition, construction, improving, expanding, renovation, leasing
or otherwise disposing of the project or any part thereof or
interest therein; and (2) preparing land for construction and
making, installing or constructing improvements on the land,
including water or wastewater facilities or any part thereof,
steam, gas, telephone and telecommunications and electric lines and
installations, roads, bridges, railroad spurs, buildings, docking
and shipping facilities, curbs, gutters, sidewalks, and drainage
and flood control facilities, whether on or off the site;
(m) (19) "Infrastructure revenue" means all amounts
appropriated by the Legislature; all amounts deposited into the
infrastructure fund; any amounts received, directly or indirectly,
from any source for the use of all or any part of any project
completed pursuant to this article; and any other amounts received
by the State Treasurer, council, or the Water Development Authority
for the purposes of this article: Provided, That funds for water
and sewer infrastructure projects and funds for broadband middle
mile infrastructure projects shall be kept separate;
__________(20) "Middle mile" when used in the context of broadband means
any wired or wireless facilities, or portions thereof, which
facilitate transport service for service providers or carriers, and
provides connectivity between communities, community access points,
network access points and carrier access points, but does not
include any last mile facilities (or portions thereof) that provide
connectivity to end-users;
__________(21) "Middle mile fiber threshold" means a fiber optic cable
containing no less than seventy-two individual strands of fiber
with minimum performance characteristics consistent with nonzero
dispersion shifted single mode optical fiber cable as defined by
the International Telecommunication Union standard ITU-T G.655;
__________(n) (22) "Need of the project sponsors" means there is a
public need for a project. The council shall, for water and sewer
projects, construe a population increase evidenced by the last two decennial censuses in a county in which a project is proposed, as
a factor supporting the conclusion that a need exists for projects
in that county;
(23) "Network access point" when used in the context of
broadband means a direct connection to carriers that provide core
interstate TCPIP backbone networks that comprise or make up primary
portions of the national Internet backbone system and which provide
direct connectivity on a national scale throughout the United
States in addition to direct or indirect connectivity to
international networks throughout the world;
__________(24) "Open access" when used in the context of broadband means
the equitable and nondiscriminatory use of the new lines by all
broadband service providers including the grant of indefeasible
rights to use particular strands if such rights can be granted on
an equitable and nondiscriminatory manner, subject to such
appropriate limitations and restrictions as the council may
determine.
(o) (25) "Project" means any wastewater facility, water
facility project or any combination thereof, constructed or
operated or to be constructed or operated by a project sponsor;
(p) (26) "Project sponsor" means any governmental agency or
person, or any combination thereof, including, but not limited to,
any public utility which intends to plan, acquire, construct,
improve or otherwise develop a project;
(q) (27) "Public Service Commission" means the Public Service
Commission of West Virginia created and established under section
three, article one, chapter twenty-four of this code, or any
successor to all or any substantial part of its powers and duties;
(r) (28) "Person" means any individual, corporation,
partnership, association, limited liability company or any other
form of business organization;
(s) (29) "Public utility" means any person or persons, or
association of persons, however associated, whether incorporated or
not, including, without limitation, any governmental agency,
operating a wastewater facility or water facility as a public
service, which is regulated by the Public Service Commission as a
public utility under chapter twenty-four of this code or which is
required to file its tariff with the Public Service Commission;
(30) "Service provider" when used in the context of broadband
means any service provider that provides broadband service and is
certified to provide services in accordance with state and federal
regulations;
(t) (31) "State Development Office" means the West Virginia
Development Office established under article two, chapter five-b of
this code, or any successor to all or any substantial part of its
powers and duties;
(u) (32) "State infrastructure agency" means the division of
health, Division Department of Environmental Protection, Housing Development Fund, Public Service Commission, State Development
Office, Water Development Authority, Economic Development
Authority, and any other state agency, division, body, authority,
commission, instrumentality or entity which now or in the future
receives applications for the funding of, and provides funding or
technical assistance to, the planning, acquisition, construction or
improvement of a project;
(33) "Transport service" when used in the context of broadband
means any service that provides a service provider or carrier with
the ability to transport high-capacity voice, data, graphics or
video between communities, community access points, network access
points and carrier access points. Transport services do not
include any last mile broadband services or other services provided
directly to end-users;
__________(v) (34) "Wastewater facility" means all facilities, land and
equipment used for or in connection with treating, neutralizing,
disposing of, stabilizing, cooling, segregating or holding
wastewater, including, without limitation, facilities for the
treatment and disposal of sewage, industrial wastes or other
wastes, wastewater, and the residue thereof; facilities for the
temporary or permanent impoundment of wastewater, both surface and
underground; and sanitary sewers or other collection systems,
whether on the surface or underground, designed to transport
wastewater together with the equipment and furnishings therefor or thereof and their appurtenances and systems, whether on the surface
or underground including force mains and pumping facilities
therefor;
(w) (35) "Water Development Authority" means the West Virginia
Water Development Authority continued pursuant to the provisions of
article one, chapter twenty-two-c of this code, or any successor to
all or any substantial part of its powers and duties; and
(x) (36) "Water facility" means all facilities, land and
equipment used for or in connection with the collection and/or
storage of water, both surface and underground, transportation of
water, storage of water, treatment of water and distribution of
water all for the purpose of providing potable, sanitary water
suitable for human consumption and use; and
__________(37) "West Virginia Network for Educational Telecomputing"
means the network managed by the vice chancellor for administration
of the Higher Education Policy Commission as provided in section
two, article four, chapter eighteen-b of this code.
§31-15A-9a. Infrastructure Fund for broadband middle mile
infrastructure projects; deposits in fund;
disbursements to provide loans, loan guarantees,
grants and other assistance; loans, loan
guarantees, grants and other assistance are
subject to assistance agreements; use of funds for projects.
__________(a) The Water Development Authority shall create and establish
a special revolving fund of moneys made available by appropriation,
grant, contribution or loan to be known as the "West Virginia
Infrastructure Fund for Broadband Middle Mile Development". This
fund shall be governed, administered and accounted for by the Water
Development Authority as a special purpose account separate and
distinct from any other moneys, funds or funds owned and managed by
the authority for broadband middle mile development. The
Infrastructure Fund for Broadband Middle Mile Development shall
consist of subaccounts, as deemed necessary by the authority, for
the deposit of:
__________(1) Infrastructure revenues for broadband middle mile
deployment;
__________(2) Any appropriations, grants, gifts, contributions, loan
proceeds or other revenues received by the Infrastructure Fund for
Broadband Middle Mile Development from any source, public or
private;
__________(3) Amounts received as payments on any loans made by the
Water Development Authority to pay for the cost of a broadband
middle mile infrastructure project;
__________(4) Insurance proceeds payable to Infrastructure and Jobs
Development Council or the Infrastructure Fund For Broadband Middle
Mile Development in connection with any broadband middle mile infrastructure project;
__________(5) All income earned on moneys held in the Infrastructure
Fund for Broadband Middle Mile Development; and
__________(6) All proceeds derived from the sale of bonds issued
pursuant to this article for broadband middle mile infrastructure
development.
__________(b) Any money collected pursuant to this section shall be paid
into the West Virginia Infrastructure Fund for Broadband Middle
Mile Development by the state agent or entity charged with the
collection of the same, credited to that fund, and used only for
purposes set forth in this article for broadband middle mile
development.
__________(c) Amounts in the Infrastructure Fund for Broadband Middle
Mile Development shall be segregated and administered by the Water
Development Authority separate and apart from its other assets and
programs. Amounts in the Infrastructure Fund for Broadband Middle
Mile Development may not be transferred to any other fund or
account or used, other than indirectly, for the purposes of any
other program of the Water Development Authority, except that the
council may use funds in the Infrastructure Fund for Broadband
Middle Mile Development to reimburse itself for any administrative
costs incurred by it and approved by the Infrastructure and Jobs
Development Council in connection with any loan, loan guarantee,
grant or other funding assistance made by the Water Development Authority pursuant to this article.
__________(d) Notwithstanding any provision of this code to the
contrary, amounts in the Infrastructure Fund for Broadband Middle
Mile Development shall be deposited by the Water Development
Authority in one or more banking institutions: Provided, That any
moneys so deposited shall be deposited in a banking institution
located in this state. The banking institution shall be selected
by the Water Development Authority by competitive bid. Pending the
disbursement of any money from the Infrastructure Fund for
Broadband Middle Mile Development as authorized under this section,
the Water Development Authority shall invest and reinvest the
moneys subject to the limitations set forth in section twelve,
article six, chapter twelve of this code.
__________(e) To further accomplish the purposes and intent of this
article, the Water Development Authority may pledge infrastructure
revenues and from time-to-time establish one or more restricted
accounts within the Infrastructure Fund For Broadband Middle Mile
Development for the purpose of providing funds to guarantee loans
for broadband middle mile infrastructure projects: Provided, That
for any fiscal year the Water Development Authority may not deposit
into the restricted accounts more than twenty percent of the
aggregate amount of revenues for broadband middle mile development
deposited into the Infrastructure Fund for Broadband Middle Mile
Development during the fiscal year. No loan guarantee may be made pursuant to this article unless recourse under the loan guarantee
is limited solely to amounts in the restricted account or accounts.
No person has any recourse to any restricted accounts established
pursuant to this subsection other than those persons to whom the
loan guarantee or guarantees have been made.
__________(f) Each loan, loan guarantee, grant or other assistance made
or provided by the Water Development Authority at the direction of
the Infrastructure and Jobs Development Council shall be evidenced
by a loan, loan guarantee, grant or assistance agreement between
the Water Development Authority and the project sponsor to which
the loan, loan guarantee, grant or assistance shall be made or
provided, which agreement shall include, without limitation and to
the extent applicable, the following:
__________(1) The estimated cost of the broadband middle mile
infrastructure project, the amount of the loan, loan guarantee or
grant or the nature of the assistance, and in the case of a loan or
loan guarantee, the terms of repayment and the security therefor,
if any;
__________(2) The specific purposes for which the loan or grant proceed
shall be expended or the benefits to accrue from the loan guarantee
or other assistance, and the conditions and procedure for
disbursing loan or grant proceeds;
__________(3) The duties and obligations imposed regarding the
acquisition, construction, improvement or operation of the broadband middle mile infrastructure project; and
__________(4) The agreement of the governmental agency to comply with
all applicable federal and state laws, and all rules and
regulations issued or imposed by the Infrastructure and Jobs
Development Council or other state, federal or local bodies
regarding the acquisition, construction, improvement or operation
of the broadband middle mile infrastructure project and granting
the Water Development Authority the right to appoint a receiver for
the broadband middle mile infrastructure project if the project
sponsor should default on any terms of the agreement.
__________(g) Any resolution of the Infrastructure and Jobs Development
Council approving loan, loan guarantee, grant or other assistance
shall include a finding and determination that the requirements of
this section have been met.
__________(h) The Water Development Authority shall cause an annual
audit to be made by an independent certified public accountant of
its books, accounts and records, with respect to the receipts,
disbursements, contracts, leases, assignments, loans, grants and
all other matters relating to the financial operation of the
Infrastructure Fund for Broadband Middle Mile Development,
including the operating of any sub-account within that
infrastructure fund. The person performing such audit shall furnish
copies of the audit report to the Secretary of the Department of
Administration, where they shall be placed on file and made available for inspection by the general public. The person
performing such audit shall also furnish copies of the audit report
to the Legislature's Joint Committee on Government and Finance.
§31-15A-9b. Advisory committee on broadband middle mile matters.
__________(a) There is hereby created a five member advisory committee
to make recommendations to the Infrastructure and Jobs Development
Council on whether to approve or disapprove an application for a
grant or loan for a broadband middle mile infrastructure project.
__________(b) This committee consists of:
__________(1) The Secretary of the Department of Administration, or his
or her designee;
__________(2) The Secretary of the Department of Commerce, or his or her
designee;
__________(3) The Director of the West Virginia Network for Educational
Telecomputing, or his or her designee;
__________(4) The member of the Broadband Deployment Council who
represents rural communities; and
__________(5) The chairman of the Infrastructure and Jobs Development
Council, or his or her designee, who also serves as chairman of the
committee.
__________(c) Applications for a grant or loan for a broadband middle
mile infrastructure project pursuant to section nine-a of this
article shall be submitted to the Director of the Development
Office, Department of Commerce, for review and to determine whether any additional information is needed from the applicant. If the
application is complete, the Director of the Development Office
shall forward the application to the chairman of the Infrastructure
and Jobs Development Council along with the recommendation of that
office regarding disposition of the application.
__________(d) After receipt of the application from the Development
Office, the advisory committee shall publish in the State Register
notice to the public that the application has been filed by a
project sponsor. This notice shall identify the project sponsor,
provide a meaningful description and the specific location of the
project, the amount of the loan or grant requested, where the
application may be viewed in person and on the Internet by the
public, and shall also include the date, time and place where the
committee will hold a public hearing, and any other information the
committee believes necessary or desirable to advise the public of
the application. The advisory committee shall also respond to
requests for additional information from the public concerning the
application or the project sponsor in a timely manner within the
public comment period.
__________(e) This notice shall be published in the State Register at
least sixty days prior to the date of the public hearing. The
purpose of the public hearing is to receive comments on the
application and on whether the application should be approved or
denied. The public may submit written comments to the committee either prior to the hearing, during the hearing, or within thirty
days after the day of the hearing.
__________(f) Anytime after the thirty day public comment period
expires, the advisor committee may submit its recommendation to the
Infrastructure and Jobs Development who shall make the final
decision on whether to approve or reject an application.
__________(g) The Infrastructure and Jobs Development Council shall
propose legislative rules for legislative approval in accordance
with article three, chapter twenty-nine-a of this code, it deems
necessary to implement the requirements of this section.
§31-15A-10a. Recommendations for expenditures of funds by loan,
grant or for engineering assistance.
__________(a) To further accomplish the purpose and intent of this
article, the Water Development Authority may use the moneys in the
Infrastructure Fund for Broadband Middle Mile Development created
by section nine-a of this article, at the direction of the
Infrastructure and Jobs Development Council, to make loans, with or
without interest, loan guarantees or grants and to provide other
assistance, financial, technical or otherwise, to finance all or
part of the costs of broadband middle mile infrastructure projects
to be undertaken by a project sponsor: Provided, That any moneys
disbursed from the Infrastructure Fund for Broadband Middle Mile
Development in the form of grants may not exceed twenty percent of
the total funds available for the funding of projects. No loan, loan guarantee, grant or other assistance may be made or provided
except upon a determination by the Infrastructure and Jobs
Development Council that the loan, loan guarantee, grant or other
assistance and the manner in which it will be provided are
necessary or appropriate to accomplish the purposes and intent of
this article, based upon an application submitted as provided in
section ten-b of this article.
__________(b) Applications for loans, loan guarantees, grants or other
assistance may be submitted by a project sponsor for one or more
broadband middle mile infrastructure projects on preliminary
application forms prepared by the Infrastructure and Jobs
Development Council pursuant to section four of this article. Any
recommendation of that council approving a loan, loan guarantee,
grant or other assistance shall include a finding and determination
by that council that the requirements of this section have been
met. The Infrastructure and Jobs Development Council shall base
any decisions to loan money for projects to project sponsors
pursuant to this article based on criteria established by the
council.
__________(c) The Infrastructure and Jobs Development Council shall, in
its sole discretion, decide whether to accept or reject an
application for a grant or loan to a project sponsor if it finds
that the broadband middle mile infrastructure project is essential
for economic development, the realization of educational opportunities, modernization of government, or facilitation of the
ability of businesses and residents to use the Internet employing
state-of-the art technologies. No project sponsor may receive
infrastructure grant money in an amount in excess of fifty percent
of the total cost of the project. Therefore, the Infrastructure and
Jobs Development Council may consider the economic or financial
conditions of the area to be served.
__________(d) As a condition for receipt of a grant or loan under this
section:
__________(1) The network provided or enhanced by the broadband middle
mile infrastructure project shall be open access, subject to rules
of the council;
__________(2) The council shall require the project sponsor to reserve
at least twelve strands of fiber for use by the state, its
instrumentalities and political subdivisions; and
__________(3) The council may require, in addition to any other
conditions, that the applicant pursue other state or federal grant
or loan programs.
__________(e) The Infrastructure and Jobs Development Council shall
develop criteria to be considered in making grants or loans to
project sponsors which shall require consideration of the economic
or financial conditions of the area to be served and the
availability of other funding sources. The Infrastructure and Jobs
Development Council shall adopt procedural rules regarding the manner in which grants and loans will be awarded in conformity with
this section. The procedural rules shall be adopted pursuant to
article three, chapter twenty-nine-a of this code.
__________(f) Notwithstanding any other provision of this article to the
contrary, engineering studies and requirements imposed by the
Infrastructure and Jobs Development Council for preliminary
applications may not exceed those engineering studies and
requirements which are necessary for the council to determine the
economic feasibility of the project. If the Infrastructure and Jobs
Development Council determines that the engineering studies and
requirements for the preapplication would impose an undue hardship
on any project sponsor, the council may provide funding assistance
to project sponsors to defray the expenses of the preapplication
process from moneys available in the Broadband Middle Mile
Infrastructure Fund for making loans: Provided, That the
Infrastructure and Jobs Development Council may only provide
funding assistance in an amount equal to $5,000 or fifty percent of
the total preapplication cost of the project, whichever amount is
greater. If the project is ultimately approved for a loan by the
Infrastructure and Jobs Development Council, the amount of funding
assistance provided to the project sponsor for the preapplication
process shall be included in the total amount of the loan to be
repaid by the project sponsor. If the project is not ultimately
approved by the Infrastructure and Jobs Development Council, then the amount of funding assistance provided to the project sponsor
will be considered a grant by the Infrastructure and Jobs
Development Council and the total amount of the assistance shall be
forgiven. In no event may the amount of funding assistance provided
to all project sponsors exceed, in the aggregate, $100,000
annually.
__________(g) The Infrastructure and Jobs Development Council shall
report to the Governor, the Speaker of the House of Delegates and
the President of the Senate during each regular and interim session
of the Legislature, on its activities and decisions relating to
distribution or planned distribution of grants and loans under the
criteria to be developed pursuant to this article. To the extent
known, the economic activity and jobs created as a result of the
council funding a broadband middle mile infrastructure project
shall be include in the report required by this subsection.
§31-15A-11a. Reservation of funds for broadband middle mile
infrastructure projects.
__________(a) Funds deposited in the West Virginia Infrastructure Fund
for Broadband Middle Mile Development shall be dedicated for the
purpose of providing funding for the cost of broadband middle mile
infrastructure projects as defined in section two of this article.
__________(b) No bonds or grants may be issued under this article for
broadband infrastructure projects until such time as the
Legislature has appropriated sufficient funds to meet debt service on the bonds, unless the Infrastructure and Jobs Development
Council is able to identify a repayment source for the bonds or a
source to provide grant funding.
§31-15A-12a. Additional powers of Infrastructure and Jobs
Development Council - Broadband middle mile
infrastructure projects.
__________To accomplish the purpose and intent of this article, the
Water Development Authority, upon approval of the Infrastructure
and Jobs Development Council, is hereby empowered, in addition to
all other powers granted to it under this code to:
__________(1) Enter into agreements or other transactions with any
federal or state agency in connection with any broadband middle
mile infrastructure project;
__________(2) Receive or administer on behalf of any federal or state
agency grants, subsidies or other payments to be applied to the
costs of any broadband middle mile infrastructure project financed,
in whole or in part, or otherwise assisted by the Infrastructure
and Jobs Development Council, including, but not limited to,
payments to be applied to operating costs and debt service or
obligations of any project sponsor;
__________(3) Receive and accept aid or contributions from any source of
money, property, labor or other things of value, to be held, used
and applied only for the purposes for which such grants and
contributions are made;
__________(4) Establish and amend the criteria and qualifications for
making loans, loan guarantees or grants, or providing any other
assistance, for any broadband middle mile infrastructure project,
and the terms of any loans, loan guarantee, grant or assistance
agreement for any broadband middle mile infrastructure project; and
__________(5) Do all things which are necessary to further the purposes
and intent of this article.
§31-15A-13a. Prohibition on funds inuring to the benefit of or ________
being distributable to Water Development Board; ________
transactions between the Water Development Board
________________and officers having certain interests in such ________
transactions.
__________No part of the West Virginia Infrastructure Fund for Broadband
Middle Mile Development or the West Virginia Broadband Middle Mile
Infrastructure Revenue Debt Service Fund inures to the benefit of
or is distributable to the Water Development Board directors or
officers of the Water Development Authority except that the Water
Development Authority is authorized and empowered to pay reasonable
compensation, other than to members of the Water Development Board,
including the chairman, vice chairman, secretary-treasurer for
services rendered and to make loans and exercise its other powers
as previously specified in furtherance of its corporate purpose:
Provided, That no loans may be made, and no property may be purchased or leased from, or sold, leased or otherwise disposed of,
to any Water Development Board member or officer of the Water
Development Authority.
§31-15A-14a. Disposition of Infrastructure Fund for Broadband
Development upon termination or dissolution of
council.
__________Upon the termination or dissolution of the Water Development
Authority, all rights and properties of the authority with respect
to the Infrastructure Fund for Broadband Middle Mile Development
shall pass to and be vested in the state, subject to the rights of
lienholders and other creditors.
§31-15A-15a. Broadband middle mile projects not to be considered
public improvements; competitive bid requirements.
__(a) No broadband middle mile infrastructure project acquired,
constructed or maintained or financed, in whole or in part, by the
Water Development Authority is a "public improvement" within the
meaning of article five-a, chapter twenty-one of this code for
purposes of the financing of the project.
__(b) The state and its subdivisions shall, except as provided
in subsection (c) of this section, solicit competitive bids and
require the payment of prevailing wage rates as provided in article
five-a, chapter twenty-one of this code for the construction of
every broadband middle mile infrastructure project funded pursuant to this article exceeding $25,000 in total cost.
__Following the solicitation of the bids, the construction
contract shall be awarded to the lowest qualified responsible
bidder, who shall furnish a sufficient performance and payment
bond: Provided, That the state and its subdivisions may reject all
bids and solicit new bids on the project.
__(c) This section does not:
__(1) Apply to work performed on construction or repair projects
not exceeding a total cost of $50,000 by regular full-time
employees of the state or its subdivisions: Provided, That no more
than $50,000 shall be expended on an individual project in a single
location in a twelve-month period;
__(2) Prevent students enrolled in vocational educational
schools from being used in the construction or repair projects when
such use is a part of the students' training program;
__(3) Apply to emergency repairs to building components and
systems: Provided, That the term "emergency repairs" means repairs
that, if not made immediately, will seriously impair the use of the
building components and systems or cause danger to those persons
using the building components and systems; or
__(4) Apply to any situation where the state or a subdivision of
the state comes to an agreement with volunteers, or a volunteer
group, by which the governmental body will provide construction or
repair materials, architectural, engineering, technical or any other professional services and the volunteers will provide the
necessary labor without charge to, or liability upon, the
governmental body: Provided, That the total cost of the
construction or repair projects does not exceed $50,000.
__(d) Subsection (b) of this section does not apply to privately
owned broadband middle mile infrastructure projects.
§31-15A-17c. Water Development Authority empowered to issue
broadband middle mile infrastructure revenue bonds
and refunding bonds; creation of Broadband Middle
Mile Infrastructure Revenue Debt Service Fund;
funding of Broadband Middle Mile Infrastructure
Revenue Debt Service Fund; requirements and manner
of such issuance.
_____(a) To accomplish the purpose and intent of this article, the
Water Development Authority upon direction of the Infrastructure
and Jobs Development Council is hereby empowered to issue from time
to time broadband middle mile infrastructure revenue bonds of the
state in such principal amounts as the council deems necessary to
make loans and loan guarantees and other forms of financial
assistance to project sponsors for one or more broadband middle
mile infrastructure projects: Provided, That the Water Development
Authority may not issue any such bonds, other than refunding bonds,
unless the council by resolution determines that the aggregate cost of the broadband middle mile infrastructure projects expected to be
constructed during any annual period exceeds: (1) The projected
annual broadband infrastructure revenues for the same period; and
(2) the principal and interest payments not otherwise pledged to
the Broadband Middle Mile Infrastructure Revenue Debt Service Fund
that are due the Water Development Authority on all outstanding
loans previously made by the authority pursuant to this article.
_____(b) The proceeds of broadband middle mile infrastructure
revenue bonds may only be used for the purpose of making loans and
loan guarantees and other forms of financial assistance to sponsors
of one or more broadband middle mile infrastructure projects, and
shall be deposited in one or more special accounts with the trustee
under the trust agreement securing such bonds and disbursed from
time to time for broadband middle mile infrastructure projects in
accordance with this article.
_____(c) The Water Development Authority may not authorize the
disbursement of any proceeds of broadband middle mile
infrastructure revenue bonds unless it has received from the
Infrastructure Jobs Development Council the documentation required
by section ten-a of this article.
_____(d) There is hereby created in the Water Development Authority
a special fund which shall be designated and known as the "West
Virginia Broadband Middle Mile Infrastructure Revenue Debt Service
Fund," into which shall be transferred solely from the loan repayments deposited in the Infrastructure Fund for Broadband
Middle Mile Development the amounts certified by the authority as
necessary to pay the principal, premium, if any, and interest on
broadband middle mile infrastructure revenue bonds and any reserve
requirements, subject to the terms of any agreement with the
holders of the broadband middle mile infrastructure revenue bonds.
All amounts deposited in the West Virginia Broadband Middle Mile
Infrastructure Revenue Debt Service Fund shall be pledged to the
repayment of the principal, interest and redemption premium, if
any, on any broadband middle mile infrastructure revenue bonds
authorized by this article: Provided, That amounts on deposit in
the fund may be used to establish or maintain reserves created for
the purposes of securing the broadband middle mile infrastructure
revenue bonds. The pledge is valid and binding from the time the
pledge is made, and the West Virginia Broadband Middle Mile
Infrastructure Revenue Debt Service Fund so pledged is immediately
subject to the lien of the pledge without any physical delivery
thereof or further act, and the lien of any such pledge is valid
and binding as against all parties having claims of any kind in
tort, contract or otherwise against the Water Development Authority
irrespective of whether the parties have notice thereof.
_____(e) Except as may otherwise be expressly provided in this
article or by resolution of the Water Development Authority, every
issue of broadband middle mile infrastructure revenue bonds are special obligations of the Water Development Authority payable
solely from amounts in the West Virginia Broadband Middle Mile
Infrastructure Revenue Debt Service Fund, and the reserves created
for this purpose by the Water Development Authority, without
preference or priority among the bonds regardless of when issued,
subject only to any agreements with the holders of any bonds to the
contrary. All such bonds are hereby declared to be negotiable
instruments.
_____(f) Broadband middle mile infrastructure revenue bonds shall
be authorized by resolution of the Water Development Authority.
These bonds shall bear such dates and shall mature at such times,
in case of any note or renewal thereof not exceeding five years
from the date of issue of the original note, and in the case of any
bond not exceeding fifty years from the date of issue, as the
resolution may provide. Broadband middle mile infrastructure
revenue bonds shall bear interest at a rate or rates, including
variable rates, shall be taxable or tax-exempt, shall be in the
denominations, shall be in registered form, shall carry the
registration privileges, shall be payable in the medium and place
of payment, and shall be subject to the terms of redemption as the
Water Development Authority may authorize. Broadband middle mile
infrastructure revenue bonds may be sold by Water Development
Authority at public or private sale at the price the authority
determines in consultation with the council. Broadband middle mile infrastructure revenue bonds shall be executed by the chairman and
the vice chairman of the Water Development Authority, either or
both of whom may use a facsimile signature. The official seal of
the Water Development Authority or a facsimile thereof shall be
affixed thereto or printed thereon and attested by manual or
facsimile signature by the secretary-treasurer of the Water
Development Authority. If any officer whose signature, or a
facsimile of whose signature appears on any broadband
infrastructure revenue bond ceases to be such officer before
delivery of such bond, such signature or facsimile is nevertheless
sufficient for all purposes to the same extent as if he or she had
remained in office until such delivery, and if the seal of the
Water Development Authority has been changed after a facsimile has
been imprinted on such bond, the facsimile will continue to be
sufficient for all purposes.
_____(g) Any resolution authorizing any broadband infrastructure
revenue bonds may contain provisions, subject to any agreement with
bondholders or noteholders which may then exist, which agreements
shall be part of the contract with the holder thereof, with respect
to the pledge of or other use and disposition of amounts in the
Broadband Middle Mile Infrastructure Revenue Debt Service Fund; the
setting aside of reserve funds; the disposition of any assets of
the Water Development Authority; limitations on the purpose to
which the proceeds of sale of bonds may be applied; the authorization of notes issued in anticipation of the issuance of
bonds; an agreement of the Water Development Authority to do all
things necessary for the authorization, issuance and sale of such
bonds in such amounts as may be necessary for the timely retirement
of such notes; limitations on the issuance of additional bonds; the
terms upon which additional bonds may be issued and secured; the
refunding of outstanding bonds and the renewal of outstanding
notes; the procedures, if any, by which the terms of any contract
with bondholders or noteholders may be amended or abrogated; the
amount of bonds the holders of which must consent thereto and the
manner in which such consent may be given; and any other matter
which in any way affects the security for or protection of the
bonds.
_____(h) In the event that the sum of all reserves pledged to the
payment of the bonds is less than the minimum reserve requirements
established in any resolution or resolutions authorizing the
issuance of the bonds, the chairman of the Water Development
Authority shall certify, on or before December 1 of each year, the
amount of such deficiency to the Governor of the state for
inclusion, if the Governor shall so elect, of the amount of such
deficiency in the budget to be submitted to the next session of the
Legislature for appropriation to the Infrastructure and Jobs
Development Council to be pledged for payment of such bonds:
Provided, That the Legislature shall not be required to make any appropriations so requested, and the amount of such deficiencies
does not constitute a debt or liability of the state.
_____(I) Neither the officers or board members of the Water
Development Authority or the Infrastructure and Jobs Development
Council, nor any person executing the broadband middle mile
infrastructure revenue bonds, are liable personally on the bonds or
be subject to any personal liability or accountability by reason of
the issuance thereof.
§31-15A-18a. Trustee for holders of broadband middle mile
infrastructure revenue bonds; contents of trust
agreement.
_____(a) Any broadband middle mile infrastructure revenue bonds
issued by the Water Development Authority under this article shall
be secured by a trust agreement between the Water Development
Authority and a corporate trustee, which trustee may be any trust
company or banking institution having the powers of a trust company
within this state.
_____(b) Any trust agreement may pledge or assign the Broadband
Middle Mile Infrastructure Revenue Debt Service Fund. Any trust
agreement or any resolution providing for the issuance of such
bonds may contain such provisions for protecting and enforcing the
rights and remedies of the bondholders or noteholders as are
reasonable and proper and not in violation of law, including
section seventeen-a of this article, and covenants setting forth the duties of the Water Development Authority in respect to the
payment of the principal of and interest, charges and fees on loans
made to, or bond purchases from, governmental agencies from the
proceeds of the bonds, and the custody, safeguarding and
application of all moneys. Any banking institution or trust company
incorporated under the laws of this state which may act as
depository of the proceeds of bonds or of the Broadband Middle Mile
Infrastructure Revenue Debt Service Fund shall furnish such
indemnifying bonds or pledge securities as are required by the
Water Development Authority. The trust agreement may set forth the
rights and remedies of the bondholders and noteholders and of the
trustee and may restrict individual rights of action by bondholders
and noteholders as customarily provided in trust agreements or
trust indentures securing similar bonds and notes. The trust
agreement may contain such other provisions as the Water
Development Authority deems reasonable and proper for the security
of the bondholders or noteholders. All expenses incurred in
carrying out the provisions of any such trust agreement may be
treated as part of the cost of the construction, renovation,
repair, improvement or acquisition of a project or infrastructure
project.
§31-15A-19a. Legal remedies of broadband middle mile
infrastructure revenue bondholders or
noteholders and trustees.
__Any holder of broadband middle mile infrastructure revenue
bonds issued pursuant to this article and the trustee under any
trust agreement, except to the extent the rights given by this
article may be restricted by the applicable resolution or trust
agreement, may by civil action, mandamus or other proceedings
protect and enforce any rights granted under the laws of this state
or granted under this article, by the trust agreement or by the
resolution in the issuance of the bonds, and may enforce and compel
the performance of all duties required by this article, pursuant to
the trust agreement or resolution, to be performed by the Water
Development Authority or any officer thereof.
§31-15A-20a. Broadband middle mile infrastructure revenue bonds
lawful investments.
__All broadband middle mile infrastructure revenue bonds issued
pursuant to this article are lawful investments for banking
institutions, societies for savings, building and loan
associations, savings and loan associations, deposit guarantee
associations, trust companies, and insurance companies, including
domestic for life and domestic not for life insurance companies.
§31-15A-21a. Purchase and cancellation of broadband middle mile
infrastructure revenue bonds.
__(a) The Water Development Authority, subject to such
agreements with noteholders or bondholders as may then exist, shall have the power, from any funds available therefor, to purchase or
redeem broadband middle mile infrastructure revenue bonds of the
council.
__(b) If the broadband middle mile infrastructure revenue bonds
are then redeemable, the price of the purchase may not exceed the
redemption price then applicable, plus accrued interest to the next
interest payment date thereon. If the broadband middle mile
infrastructure revenue bonds are not then redeemable, the price of
the purchase may not exceed the redemption price applicable on the
first date after the purchase upon which the bonds become subject
to redemption, plus accrued interest to such date. Upon purchase or
redemption, the bonds shall be canceled.
§31-15A-22a. Refunding broadband middle mile revenue bonds.
__Any broadband middle mile infrastructure revenue bonds issued
pursuant to this article and at any time outstanding may at any
time and from time to time be refunded by the Water Development
Authority by the issuance of its refunding revenue bonds in an
amount it deems necessary to refund the principal of the bonds to
be refunded, together with any unpaid interest thereon, to provide
additional funds for the Water Development Authority to, in its
discretion, issue additional revenue bonds, and to pay any premiums
and commissions necessary to be paid in connection therewith. Any
refunding may be effected whether the broadband middle mile
infrastructure revenue bonds to be refunded shall have then matured or shall thereafter mature: Provided, That the holders of any
broadband middle mile infrastructure revenue bonds so to be
refunded may not be compelled without their consent to surrender
their broadband middle mile infrastructure revenue bonds for
payment or exchange prior to the date on which they are payable or,
if they are called for redemption, prior to the date on which they
are by their terms subject to redemption. Any refunding revenue
bonds issued pursuant to this article are payable from the West
Virginia Broadband Middle Mile Infrastructure Revenue Debt Service
Fund, and are subject to section seventeen-c of this article, and
shall be secured in accordance with sections seventeen-c and
eighteen-a of this article.
§31-15A-23a. Broadband middle mile infrastructure revenue bonds
not debt of state, county, municipality or any
political subdivision.
__Broadband middle mile infrastructure revenue bonds issued
pursuant to this article do not constitute a debt or a pledge of
the faith and credit or taxing power of this state or of any
county, municipality or any other political subdivision of this
state. The holders or owners thereof have no right to have taxes
levied by the Legislature or the taxing authority of any county,
municipality or any other political subdivision of this state for
the payment of the principal thereof or interest thereon. The broadband middle mile revenue bonds are payable solely from the
revenues and funds pledged for their payment as authorized by this
article. All such bonds shall contain on the face thereof a
statement to the effect that the bonds, as to both principal and
interest, are not debts of the state or any county, municipality or
political subdivision thereof, but are payable solely from revenues
and funds pledged for their payment.
§31-15A-24a. Broadband middle mile infrastructure revenue bonds
exempt from taxation.
__The exercise of the powers granted to the Water Development
Authority by this article will be in all respects for the benefit
of the people of the state, for the improvement of their health,
safety, convenience and welfare and for the enhancement of their
residential, agricultural, recreational, economic, commercial and
industrial opportunities and is for a public purpose. As the
construction, acquisition, repair or renovation of broadband middle
mile infrastructure projects will constitute the performance of
essential governmental functions, the Water Development Authority
may not be required to pay any taxes or assessments upon any
project or upon any property acquired or used by the Water
Development Authority or upon the income therefrom. The broadband
middle mile infrastructure revenue bonds and all interest and
income thereon are exempt from all taxation by this state, or any
county, municipality, political subdivision or agency thereof, except estate taxes.
NOTE: The purpose of this bill concerns the development of
broadband middle mile infrastructure in the state. The bill adds
and defines new terms. The bill creates a separate infrastructure
fund for broadband middle mile infrastructure projects. The bill
provides for deposits and expenditures. The bill sets forth
additional powers to Infrastructure and Jobs Development Council
and Water Development Authority regarding broadband middle mile
infrastructure projects. The bill creates advisory committee to
advise Infrastructure and Jobs Development Council on disposition
of applications for grants and loans. The bill provides a process
for review of applications by Development Office. The bill requires
notice of public hearing on applications for grants and loans. The
bill provides for hearings and public comment period. The bill
creates the Infrastructure Fund for Broadband Middle Mile
Infrastructure Revenue Debt Service Fund. The bill provides for the
disposition of funds on termination or dissolution of the
authority. The bill provides that broadband middle mile projects
funded by authority are public improvements. The bill authorizes
the issuance of broadband middle mile revenue bonds. The bill
creates Broadband Middle Mile Infrastructure Debt Service Fund. The
bill provides for funding of debt service fund. The bill specifies
requirements for and manner of issuance of bonds. The bill provides
for contents of trust agreement and trustee for bonds. The bill
specifies remedies available to bondholders, noteholders and
trustees. The bill makes broadband middle mile infrastructure
revenue bonds lawful investments. The bill provides for purchase,
cancellation and refunding of bonds. The bill declares that bonds
are not state debts and are exempt from taxation.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§31-15A-9a, §31-15A-9b, §31-15A-10a, §31-15A-11a, §31-15A-12a,
§31-15A-13a, §31-15A-14a, §31-15A-15a, §31-15A-17c, §31-15A-18a,
§31-15A-19a, §31-15A-20a, §31-15A-21a, §31-15A-22a, §31-15A-23a and
§31-15A-24a, are new; therefore, they have been completely
underscored.