Senate Bill No. 740
(By Senators Unger, Fanning, White, Deem and Facemyer)
____________
[Originating in the Committee on Transportation and
Infrastructure;
reported March 23, 2005.]
_____________
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5B-4-1, §5B-4-2,
§5B-4-3, §5B-4-4, §5B-4-5, §5B-4-6, §5B-4-7, §5B-4-8, §5B-4-9,
§5B-4-10, §5B-4-11, §5B-4-12, §5B-4-13, §5B-4-14, §5B-4-15,
§5B-4-16, §5B-4-17, §5B-4-18, §5B-4-19, §5B-4-20, §5B-4-21 and
§5B-4-22, all relating to conducting an inventory and
developing coordinated deployment and operation of technology
infrastructure within this state; legislative findings and
purpose; definitions; technology infrastructure inventory,
local government cooperation, inventory survey reporting
requirements, rule-making authority of Secretary of Department
of Administration; exemption from disclosure of confidential
information; creating Joint Legislative Oversight Commission
on Transportation and Infrastructure; creating Innovation
center, appointment and qualifications of Chief Officer of
Innovation Center; powers and duties of Innovation Center;
rule-making authority of Council for Community and Economic Development relating to Innovation Center; Innovation Center
study and inventory of management practices of technology and
technology infrastructure; reporting requirements; providing
technical and funding assistance for innovation; authorizing
Innovation Center to engage in consulting services for fee
contractual and joint venture agreements; authority of local
government to be providers of cable services, internet
services, telecommunications services, information services,
advanced services, broadband services, internet protocol
enabled services, wireless and broadband internet services,
authority to build technology infrastructure, authority to
issue bonds; prior to issuance of bonds payment of expenses;
ordinance, resolution or order required for the acquisition or
construction of technology infrastructure system; publication
and hearing requirements related to bonds; cost of technology
infrastructure system; bonds not an indebtedness of local
government; redemption and form of bonds, exemption from
taxation of bonds; additional bonds to extend or improve
technology infrastructure system authorized, equal priority
with original bonds; establishment of sinking fund, transfer
of balance of net revenues; enabling local government to
establish rates of service; statutory mortgage lien created
authorizing refunding of revenue bonds; and liberal
construction of article.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5B-4-1, §5B-4-2, §5B-
4-3, §5B-4-4, §5B-4-5, §5B-4-6, §5B-4-7, §5B-4-8, §5B-4-9, §5B-4-
10, §5B-4-11, §5B-4-12, §5B-4-13, §5B-4-14, §5B-4-15, §5B-4-16,
§5B-4-17, §5B-4-18, §5B-4-19, §5B-4-20, §5B-4-21 and §5B-4-22, all
to read as follows:
ARTICLE 4. ELECTRONIC TELECOMMUNICATION OPEN INFRASTRUCTURE ACT.
§5B-4-1. Legislative findings; Purpose.
(a) This article is known as the "Electronic Telecommunication
Open Infrastructure Act" and shall be referred to as "ETOPIA".
(b) The Legislature finds and declares that the internet
revolution is driving today's economy and that information
technology offers increased economic opportunities, higher living
standards, more individual choices, and wider and more meaningful
participation in government and public life. The past decade has
brought considerable advancement in telecommunications and the way
people communicate worldwide. Accordingly, telecommunications in
general, and the internet in particular, are becoming increasingly
important to the efficiency and effectiveness of private and public
sector entities. With the advent of the internet and its various
commercial, educational, medical and cultural applications, the
ability of people in all parts of this state to access the internet
has become an important component in the ability of the state and its people and institutions to remain competitive in the
information-based global economy. Internet access is a major
concern for rural health care. Telemedicine gives health care
providers the ability to share data with medical experts in
academia and large urban hospitals in this state and country,
thereby greatly enhancing the level of health care in these areas.
Internet access is also a concern for rural education. Access to
the internet will complement the learning experiences of children
in rural areas by giving them a window to the world and allowing
them to gather data from the information superhighway which would
not otherwise be available to them. Moreover, internet access will
give rural children planning to attend college a direct connection
to academic information provided online by institutions of higher
education in this state and throughout this country. The benefits
of the internet are useless to people and businesses who are
neither connected to nor able to access the information
superhighway. Further, another public need is to develop and
implement technology infrastructure that supports homeland security
and public safety. The legislature finds and declares that
efficient and comprehensive development of technology
infrastructure is linked to the coordinated deployment and
operation of information systems, information technology,
information equipment, and telecommunications systems, and that the
management, goals and purposes of government are furthered by the completion of an inventory of information systems, information
technology, information equipment, telecommunications related
services and systems and generally technology infrastructure and
linked information systems across government. The legislature
further finds and declares that technology infrastructure is
essential to business and economic development within the state.
Therefore, it is a purpose of this article to create, as an
integral part of the West Virginia development office, the
Innovation Center with the authority to advise, make
recommendations, coordinate research and development efforts
throughout the state, and build sustainable communities through
technology infrastructure. The legislature further finds technology
infrastructure promotes economic development. Technology
infrastructure can make distance far less important than it
historically has been, entrepreneurs can choose to live in small
towns and rural communities and still engage in global data
transmission marketplace. The legislature further finds that the
kind of infrastructure necessary for widespread growth and
development is severely lacking and as with other utilities and
services, rural areas are often the last to be served because of
the higher price of doing business. The legislature finds that
technology infrastructure is vital if West Virginia communities
are to survive and prosper in the global economy. The legislature
hereby further finds and declares that problems of implementation of technology infrastructure so transcends the boundary lines of
governmental units that no single unit can plan for the solution of
these problems without affecting other units of government; that
intergovernmental cooperation is an effective method to approach
common development; and that assistance of the State is needed to
make the most effective use of local, state, federal, and private
resources. It is therefore the purpose of this article to (1)
ensure that technology infrastructure and related services are
provided, and provide the widest possible diversity of information
and resources to the general public; (2) advance the exercise of
rights under the First Amendment of the Constitution of the United
States; (3) enhance the development and widespread use of
technological advances; (4)achieve the objectives and policies
necessary for the orderly growth and development of the state; and
(5) facilitate intergovernmental cooperation and public-private
partnerships.
§5B-4-2. Definitions.
The following terms, wherever used or referred to in this
article, shall have the following meanings unless a different
meaning clearly appears from the context:
(a) "Information equipment" includes central processing units,
front-end processing units, miniprocessors, microprocessors and
related peripheral equipment such as data storage devices,
networking equipment, services, routers, document scanners, data entry equipment, terminal controllers, data terminal equipment,
computer-based word processing systems other than memory
typewriters;
(b) "Information systems" mean computer-based information
equipment and related services designed for the automated
transmission, storage, manipulation and retrieval of data by
electronic or mechanical means;
(c) "Information technology" means data processing and
telecommunications hardware, software, services, supplies,
personnel, maintenance and training, and includes the programs and
routines used to employ and control the capabilities of data
processing hardware;
(d) "Local government" means any municipality, county, metro
or regional government, or entities or affiliates of such entities
in the state of West Virginia;
(e) "Person" means an individual, partnership, association,
company, trust, organization, or corporation;
(f) "Public body" means a department, division, agency,
bureau, board, commission, court in its nonjudicial functions only,
council, institution, spending unit, authority or other
instrumentality thereof of whatever description of the state of
West Virginia, or any county court or tribunal or commission in
lieu thereof, or any county board of education, or any incorporated
municipality, metro or regional government, or any other political subdivision; and
(g) "Technology infrastructure" means information systems,
information technology, information equipment and facilities,
equipment, lines, and services designed for or used for the
transmission, emission or reception of signs, signals, writings,
images or sounds of intelligence of any nature by wire, radio,
microwave, or other electromagnetic or optical systems, related
hardware, software, and programming, and specifically including,
but not limited to, all features, facilities, equipment, systems,
functions, programming, and capabilities, and technical support
used in providing or related to:
(1) Cable service (as defined in 47 U.S.C. 522(6));
(2) Telecommunications service (as defined in 47 U.S.C.
153(46));
(3) Information service (as defined in 47 U.S.C. 153(20));
(4) Advanced services (as defined in 47 CFR 51.5);
(5) Broadband service; and/or
(6) Internet Protocol enabled services; however classified by
the Federal Communications Commission.
§5B-4-3. Technology Infrastructure needs assessment and inventory;
agency and local government cooperation; information
gathering; reporting requirements; rule-making authority.
(a) The state encourages the coordinated deployment and
operation of technology infrastructure for present and future use. Therefore, it is necessary for the state to determine, and maintain
an ongoing, continually updated record of, the nature and extent of
its technology infrastructure comprising information systems,
information equipment, and information technology, the demands on
its technology infrastructure, and those governmental entities
which use or desire to use the resources of the technology
infrastructure providing information services, cable service,
advanced services, broadband services, internet, internet protocol
enabled services, telecommunications services or similar services
or support.
(b) The Secretary of the Department of Administration shall
develop systems and processes for maintaining accurate information
on the state of the technology infrastructure in the state on an
ongoing basis and conduct an infrastructure resources survey of the
deployment and operation of technology infrastructure in this
state. The Secretary shall determine the form and format of the
information submitted, including the use of electronic submissions.
(c) To facilitate the infrastructure resources survey the
Secretary of the Department of Administration, in consultation with
the chief officer of the Innovation Center established in this
article, shall propose emergency and legislative rules in
accordance with article three, chapter twenty-nine-a of this code.
These rules may include: (1) The manner of reporting the
information; (2) promulgation of a form or forms for reporting purposes; (3) a means of providing training to individuals
responsible for the completion and submission of the information on
the proposed form; (4) a means of reporting back to individual
participating public bodies, from time to time, at the request of
a public body, on findings specific to that body to allow the
public body to evaluate independently the information provided; (5)
a limitation that the information is to be used solely for the
purposes of this article; (6) safeguards to protect the
confidential information as provided in section four of this
article; (7) methodology for collection of information and the
analysis of the information; (8)protocols for an annual update of
the infrastructure resources survey including information
collection, analysis, and reporting thereof by the Department of
Administration.
(c) Every public body
shall complete an infrastructure
resources survey no later than the first day of October, two
thousand five
and a survey each year thereafter as provided in
rules promulgated pursuant to this section.
(d) The Secretary shall file annually a report with the joint
legislative oversight commission
on transportation and
infrastructure created in section five of this article
.
The report
shall generally advise the joint oversight commission on
transportation and infrastructure about the
deployment and
operation of technology infrastructure in this state
and to make recommendations on policy and statutory changes that may be needed.
The report shall include the following: (1) A discussion of the
connectivity, priorities, and interoperability of the technology
infrastructure owned, leased or used by public bodies; (2) a
discussion of the technology infrastructure
that is
owned, leased,
operated, or used by the public bodies of the state
; (3) a
discussion of technology infrastructure as it affects homeland
security, public safety and health, systems reliability and
providing continuity of government operations; (4) a discussion of
the technology infrastructure
identifying potential market demand
areas where expanded resources may be expected; (5) a discussion of
practices or suggestions to coordinate development of
infrastructure
related to technology infrastructure and the
deployment of services between the public bodies through the
coordinated delivery of these systems; and (6) any other
discussion that may be beneficial in adequately assessing
technology infrastructure.
(e) To the extent technology infrastructure information is
readily provided by private persons or otherwise available, the
Secretary shall utilize and incorporate that data to fulfill the
reporting requirements of this section.
(f) The provisions of this section shall be of no force or
effect after the thirty-first day of December, two thousand eight.
§5B-4-4. Confidential information; exemption from disclosure.
(a) Information submitted by a public body as part of the
survey that may be a trade secret or otherwise confidential shall
be identified by that body as confidential information. The public
body claiming confidentiality shall provide written justification
to the Secretary at the time the information is submitted stating
the reasons for confidentiality and why the information should not
be released.
(b) In addition to records or documents that may be considered
confidential under this code, confidential information means
records, reports or information, or a particular portion or any
combination or aggregation thereof, that if made public would
present a threat to the safety and security of any system or
component relating to the technology infrastructure, and related
systems.
(c) Information designated as confidential and the written
justification shall be maintained in a file separate from the
general records related to the public body. The confidential
information will be exempt from disclosure requirements under this
code.
(d) Information designated as confidential may be released to
the Department of Administration, its employees and agents when
compiling and analyzing the infrastructure resources survey
information and as may be necessary to develop the report required
by this article. Any individual receiving information designated confidential shall protect the information as confidential.
§5B-4-5. Joint legislative oversight commission on transportation
and infrastructure.
(a) The President of the Senate and the Speaker of the House
of Delegates shall each designate five members of their respective
houses, at least one of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of transportation and
infrastructure matters, specifically including, but not limited to,
the ongoing oversight of the management and coordination of the
deployment and operation of infrastructure related to technology.
This commission shall be known as the "Joint Legislative Oversight
Commission on Transportation and Infrastructure" and shall
regularly investigate and monitor all matters relating to
transportation and infrastructure.
§5B-4-6. Innovation center; chief officer; appointment and
qualifications.
There is hereby created an office within the West Virginia
Development Office called the Innovation Center. There shall also
be a chief officer, who shall be appointed by and shall serve at
the will and pleasure of the Governor. The chief officer shall
have knowledge in the fields of information technology and
telecommunications, business development in these fields and an
understanding of the special demands upon entrepreneurship, industry, commerce, culture and public private partnerships.
§5B-4-7. Powers and duties Innovation Center.
(a) The primary responsibility of the Innovation Center is to
foster and support economic development and the advancement and
commercialization of new and emerging technologies through
collaboration agreements between business-industry and the state.
(b) The Innovation Center has the authority and power to
provide consulting and additional services, including, but not
limited to, evaluation of technology, verification and assessment
of market applications, grant administration for any person engaged
in public-private collaborations with the West Virginia Development
Office pertaining to technology advancement and commercialization
activities and research into new areas of economic development
relating to technology, technology infrastructure, and
telecommunications.
(c)
The Innovation Center may receive and accept from any
public body or person or entity of any nature whatsoever grants to
be expended in accomplishing the objectives of this article and to
receive and accept from the state appropriations, and grants from
any public body and from any other source, aid or contributions of
either money, property or other things of value to be held, used
and applied only for the purposes for which the grants and
contributions may be made or collect fees for consulting services
rendered to any public body.
(d) The Innovation Center may
accept and expend any gift,
grant, contribution, bequest, endowment or other money for the
purposes of this article and to make a maximum effort to encourage
external support for the Center's programs. Any transfer of
endowment or other assets to the Center shall be formalized in a
memorandum of agreement to assure, at a minimum, that any
restrictions governing the future disposition of funds are
preserved.
(e) The Council for Community and Economic Development
pursuant to its powers created in section three, article four,
chapter five B, of this code may
promulgate rules to fulfill the
purposes of this section and to carry into effect the purpose and
scope of the Innovation Center.
Any new rules promulgated by the
Council shall be promptly submitted to the joint commission created
in section five of this article. These rules are not subject to the
provisions of chapter twenty-nine-a of this code, but shall be
filed with the secretary of state.
§5B-4-8. Need for study; reporting requirements; information
gathering.
(a) The Innovation Center shall enhance well-being,
prosperity, economic growth and community development through the
ongoing study and research into and development of best known
methods regarding the management practices, human factors and
cultural changes related to the implementation, operation and utilization of technology, technology infrastructure, and related
services. For the purposes of this section, "Best known methods"
refer to plans that outline strategies and activities designed to
continue, diversify or expand the economic base of the state as a
whole; create jobs; develop a highly capable work force; enhance
productivity; facilitate business access to capital, including
venture capital and capital markets; advertise and market the
resources offered by the state with respect to the technology needs
of business and industry; facilitate cooperation among state
government, entrepreneurship efforts, public private partnerships,
universities and colleges; and leverage funding from sources other
than the state, including federal and private sources.
(b)
Upon completion of a study of best known methods in
private industry and public policy, the chief officer shall file an
initial, preliminary report with the joint legislative oversight
commission on transportation and infrastructure created in section
five of this article no later than the first day of November, two
thousand five. The report shall include the following: (1) A
discussion
that outlines strategies and activities designed to
continue, diversify or expand the resources offered by the state
with respect to the technology needs of business and industry; (2)
a discussion that outlines strategies to facilitate cooperation
among state government, local government, entrepreneurship efforts,
public private partnerships, colleges and universities, with respect to the technology needs of business and industry; (3) a
discussion of the management and utilization of technology
infrastructure identifying potential growth areas where expanded
resources may be expected; (4) a discussion of practices or methods
to coordinate development and utilization of technology
infrastructure and the deployment of technology infrastructure and
related technology between public bodies through the coordinated
delivery of these systems; and (5) any other information that may
be beneficial in adequately assessing technology available in
determining the need for and the preparation of technology
infrastructure plans.
(c) The chief officer shall report annually to the joint
oversight commission on transportation and infrastructure to advise
the commission about the deployment and operation of technology
infrastructure in this state and to make recommendations on policy
and statutory changes that may be needed.
(d)
In developing its study, the Innovation Center shall
consider resources and technical support available through other
agencies, both public and private, including, but not limited to,
the state college and university systems; the West Virginia Housing
Development Fund; the West Virginia Economic Development Authority;
the West Virginia Parkways, Economic Development and Tourism
Authority; the West Virginia Chamber of Commerce; regional planning
and development councils; regional partnership for progress councils; and state appropriations.
§5B-4-9. Providing technical and funding assistance for
innovation; contractual and joint venture agreements.
(a) The Innovation Center may provide assistance, including
funding assistance to develop technology infrastructure, and
related technology through a matching grant program. The Innovation
Center shall establish criteria for awarding matching grants within
the limits of funds appropriated by the Legislature for the program
or as may be available from other sources.
(b) The Innovation Center may provide technical assistance,
including consulting services for a fee to one or more public
bodies pertaining to the development of technology and technology
infrastructure.
(c) The Innovation Center is authorized to enter into
contractual or joint venture agreements with a one or more persons
and public bodies pertaining to the development of technology and
technology infrastructure provided such agreements may not be
considered a debt of the state or a pledge of the credit of the
state.
§5B-4-10. Authority of local government to be providers of cable
services, telecommunications services, information services,
advanced services, broadband services, internet protocol
enable services, wireless and broadband internet network
services; authority of local government to acquire, develop, construct technology infrastructure; issue bonds.
(a) Local government, directly or indirectly, is authorized
and empowered to construct, operate or become a provider of:(1)
cable service (as defined in 47 U.S.C. 522(6));(2)
telecommunications service (as defined in 47 U.S.C. 153(46));(3)
information service (as defined in 47 U.S.C. 153(20));(4) advanced
services (as defined in 47 CFR 51.5);(5) broadband service;(6)
internet protocol enabled services; and/or(7) wireless and
broadband internet network services.
(b) Local government, directly or indirectly, including
through an authority or instrumentality acting on behalf of the
local government or for the benefit of the local government, by
itself, or through intergovernmental agreement with another local
government or public body, or by contractual or joint venture
agreements with one or more persons, is authorized and empowered to
construct, own, use, acquire, deliver, grant, operate, maintain,
sell, purchase, lease, and equip technology infrastructure, and by
written contract or lease, sell capacity in, or grant other similar
rights to a person to use, the technology
infrastructure(collectively, for the purposes of this article, the
"technology infrastructure system").
(c) Local government is authorized and empowered to issue
revenue bonds to pay a portion or all of the costs of the
technology infrastructure system authorized by this section.
(d) A local government is authorized to provide those services
and construct and operate a technology infrastructure system
authorized by this section within and/or without its corporate or
governmental boundaries: Provided, That a county commission may not
operate within the corporate limits of any municipality without
consent of the municipality and that a municipality may not operate
outside its corporate limits without the consent of the county
commission.
§5B-4-11. Payment of preliminary expenses of surveys, etc.
All necessary preliminary expenses actually incurred by the
local government in the making of surveys, estimates of costs and
of revenue, employment of engineers or other professionals or
agents, the giving of notices, taking of options and all other
expenses of whatsoever nature, necessary to be paid prior to the
issuance and delivery of the bonds authorized by this article may
be met and paid out of the general funds of said local government
not otherwise appropriated: Provided, however, That the fund or
funds of such local government from which payments are made may be
fully reimbursed and repaid by said governing body out of the
proceeds of the sale of bonds hereinafter provided for or other
monies available to the technology infrastructure system.
§5B-4-12. Ordinance or resolution necessary before acquisition
or construction of technology infrastructure.
Before any local government shall issue bonds to finance the construction, acquisition, betterments or improvements to the
technology infrastructure system under section ten of this article,
the governing body of the local government shall enact an
ordinance, adopt a resolution, or issue an order which shall: (a)
Set forth a brief and general description of the technology
infrastructure system and, if the same are to be constructed, (b)
order the construction or acquisition of such technology
infrastructure system; (c) direct that revenue bonds of the local
government shall be issued pursuant to this article in such an
amount as may be found necessary to pay all or a portion of the
cost of the technology infrastructure system; and (d) contain such
other provisions as may be necessary. Each ordinance, resolution,
or order shall be passed on first reading by the governing body at
a meeting duly noticed and held.
§5B-4-13. Publication and hearing upon ordinance, resolution or
order.
After such ordinance, resolution, or order shall have been
passed on first reading, an abstract of the ordinance, resolution,
or order, determined by the governing body of the local government
to contain sufficient information as to give notice of the contents
of such ordinance, resolution, or order, together with the
following described notice, shall be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this Code, and the publication area for such publication shall be the county(s) where the technology
infrastructure system will be located, and said notice shall be
also provided to the Secretary of the Department of Administration.
The notice shall state that said ordinance, resolution, or order
has been passed on first reading, and that the local government
contemplates the construction or acquisition of the improvements
described in the ordinance, resolution, or order and that the local
government contemplates the issuance of the bonds described in the
ordinance, resolution, or order, and that any person interested may
appear before the governing body upon a certain date, which shall
not be less than ten days subsequent to the first date of
publication of such abstract and notice which shall not be prior to
the last date of publication of such abstract and notice, and
present protests. At such hearing all objections and suggestions
shall be heard and the governing body shall take such action as it
shall deem proper.
§5B-4-14.
Cost of technology infrastructure system pertaining
to the issuance of bonds authorized by the article.
The cost of acquisition, construction, improvements and
betterments to the technology infrastructure system shall be deemed
to include the cost of acquisition or construction thereof, the
cost of all property, rights, easements, and franchises deemed
necessary or convenient therefor and for the improvements
determined upon as provided in this article; interest upon bonds prior to and during construction or acquisition and for six months
after completion of construction or of acquisition of the
improvement last mentioned; a reserve account for any such bonds,
engineering and legal expenses; expense for estimates of cost and
of revenues; expenses for plans, specifications and surveys; other
expenses necessary or incident to determining the feasibility or
practicability of the enterprise, administrative expense; operation
and maintenance expenses for the technology infrastructure system
both during construction and for a period of not more than twelve
month after completion of construction, and such other expenses as
may be necessary or incident to the financing herein authorized and
the construction or acquisition of the technology infrastructure
system and the placing of the technology infrastructure and
service in operation and the performance of the things herein
required or permitted in connection with any thereof.
§5B-4-15. Bonds not indebtedness of local government.
Any bonds issued under this article may not, in any respect,
be a corporate indebtedness of the local government, within the
meaning of any statutory or constitutional limitations thereon. All
the details of the bonds not set forth by this article shall be
determined by ordinance, resolution, or order of the local
government.
§5B-4-16. Redemption of bonds; statement on face of bond;
negotiability; exemption from taxation; registration; execution; sale; disposition of surplus proceeds; additional
and temporary bonds.
Such revenue bonds shall be payable at such times, and shall
mature at such time or times as may be determined by ordinance,
resolution, or order. Such bonds may be made redeemable before
maturity at the option of the local government. The principal and
interest of the bonds may be made payable in any lawful medium and
said bonds shall be registered. Said ordinance, resolution, or
order shall fix the denomination or denominations of such bonds and
the place or places of payment of the principal and interest
thereof, which may be at any bank or trust company within or
without the state or the West Virginia Municipal Bond Commission.
The bonds shall contain a statement on their face that the local
government shall not be obligated to pay the same or the interest
thereon except from the special fund provided from the net revenues
of the technology infrastructure system. All such bonds shall be,
and shall have and are hereby declared to have all the qualities
and incidents of, negotiable instruments under the Uniform
Commercial Code of the State. Said bonds shall be exempt from all
taxation, state, county and municipal. Such bonds shall be executed
by the proper legally elected or duly appointed officers of the
local government, and be sealed with the corporate seal of the
local government, and in case any of the officers whose signatures
appear on the bonds or coupons shall cease to be such officers, before delivery of such bonds, such signatures shall nevertheless
be valid and sufficient for all purposes the same as if they had
remained in office until such delivery. Such bonds shall be sold at
a price not lower than a price, which when computed upon standard
tables of bond values, will show a net return of not more than
thirteen percent per annum to the purchaser upon the amount paid
therefor, and the bonds may be sold in one or more series. If the
proceeds of the bonds, by error of calculation or otherwise, shall
be less than the cost of the technology infrastructure system,
additional bonds may in like manner be issued to provide the amount
of such deficit and, unless otherwise provided in said ordinance,
resolution, or order authorizing the issuance of the bonds first
issued or in the trust indenture hereinafter authorized, shall be
deemed to be of the same issue and shall be entitled to payment
without preference or priority of the bonds first issued. Prior to
the preparation of the definitive bonds, temporary bonds may under
like restrictions be issued with or without coupons, exchangeable
for definitive bonds upon the issuance of the latter.
§5B-4-17. Additional bonds to extend or improve technology
infrastructure system, equal priority with original bonds;
application of revenue from bonds; securing bonds by trust
indenture.
(a) The governing body of the local government may provide by
said ordinance resolution or order authorizing the issuance of the bonds authorized by this article or in the trust indenture
hereinafter referred to, that additional bonds may thereafter be
authorized and issued, at one time or from time to time under such
limitations and restrictions as may be set forth in said ordinance,
resolution, order and/or trust indenture, for the purpose of
extending, improving or bettering the technology infrastructure
system when deemed necessary, such additional bonds to be secured
and be payable from the revenues of the technology infrastructure
system equally with all other bonds issued pursuant to said
ordinance, resolution, or order without preference or distinction
between any one bond and any other bond by reason of priority of
issuance or otherwise.
(b) All moneys received from any bonds issued pursuant to this
article shall be applied solely to the payment of the cost of the
construction, acquisition, betterments or improvements to the
technology infrastructure system, or to the appurtenant sinking
fund, reserve account, and/or operation and maintenance fund, and
there shall be and hereby is created and granted a lien upon such
moneys, until so applied, in favor of the holders of the bonds or
the trustees hereinafter provided for.
(d) In the discretion of the governing body of the local
government such bonds may be secured by a trust indenture by and
between the local government and a corporate trustee, which may be
any trust company or bank having the powers of a trust company. The ordinance, resolution, or order authorizing the bonds and
fixing the details thereof may provide that such trust indenture
may contain such provisions for protecting and enforcing the rights
and remedies of the bondholders as may be reasonable and proper,
not in violation of law, including covenants setting forth the
duties of the local government in relation to the construction or
acquisition of the technology infrastructure system and the
improvement, operation, repair, maintenance and insurance thereof.
Such indenture may set forth the rights and remedies of the
bondholders and/or such trustee, restricting the individual right
of action of bondholders as is customary in trust indentures
securing bonds and debentures of corporations.
§5B-4-18. Sinking fund; transfer of balance of net revenues.
At or before the issuance of any such bonds the governing body
of the local government shall by said ordinance, resolution, or
order create a sinking fund, to be remitted to and administered by
the West Virginia bond commission, or, if the local government
elects to have an indenture, by the trustee thereunder, for the
payment of the bonds and the interest thereon, and shall set aside
and pledge a sufficient amount of the net revenues of the
technology infrastructure system, hereby defined to mean the
revenues of the technology infrastructure system remaining after
the payment of operation, repair and maintenance expenses, such
amount to be paid by the local government into said sinking fund at intervals to be determined by ordinance, resolution, or order which
authorizes issuance of the bonds, for: (a) The interest upon such
bonds as such interest shall fall due; (b) the necessary fiscal
agency charges for paying bonds and interest; (c) the payment of
the bonds as they fall due, or, if all bonds mature at one time,
the proper maintenance of a sinking fund in such amounts as are
necessary and sufficient for the payment thereof at such time. Such
required payments shall constitute a first charge upon all the net
revenue of the technology infrastructure system. The West Virginia
bond commission is hereby authorized to act as fiscal agent for the
administration of such sinking fund, under any ordinance,
resolution, or order passed pursuant to the provisions of this
article, and shall invest all such sinking funds as provided by
general law. Notwithstanding the foregoing, payments of principal
and interest on any bonds owned by the United States of America or
any agency or department thereof may be made by the governing body
of the local government directly thereto.
§5B-4-19. Rates for service.
(a) The governing body of the local government shall have
power to establish and maintain rates, fees or charges for the use,
lease, or grant of the technology infrastructure system and/or
services provided to subscribers. The governing body may change
and readjust such rates, fees or charges from time to time. The
governing body may collect from all new applicants for service a deposit to secure the payment of service rates, fees and charges in
the event they become delinquent.
§5B-4-20. Statutory mortgage lien created; foreclosure thereof
There shall be and is hereby created a statutory mortgage lien
upon such technology infrastructure system, which shall exist in
favor of the holders of bonds hereby authorized to be issued, and
each of them, and the coupons attached to said bonds, and such
technology infrastructure system shall remain subject to such
statutory mortgage lien until payment in full of all principal of
and interest on such bonds. Any holder of such bonds, of any
coupons attached thereto, may, either at law or in equity, enforce
said statutory mortgage lien conferred hereby and upon default in
the payment of the principal of or interest on said bonds, may
foreclose such statutory mortgage lien in the manner now provided
by the laws of the State of West Virginia for the foreclosure of
mortgages on real property.
§5B-4-21. Refunding revenue bonds
The governing body of any local government having issued bonds
under the provisions of this article is hereby empowered thereafter
by ordinance, resolution, or order to issue refunding bonds of
local government for the purpose of retiring or refinancing such
outstanding bonds, together with any unpaid interest thereon and
redemption premium thereunto appertaining and all of the provisions
of this article relating to the issuance, security and payment of bonds shall be applicable to such refunding bonds, subject,
however, to the provisions of the proceedings which authorized the
issuance of the bonds to be so refunded.
§5B-4-22. Complete authority of article; liberal construction.
This article is full and complete authority for carrying out
the powers and duties of same as herein provided. The provisions of
this article shall be liberally construed to accomplish its purpose
and no procedure or proceedings, notices, consents or approvals,
are required in connection therewith except as may be prescribed by
this article.
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(NOTE: The purpose of this bill is to authorize the
Department of Administration to conduct an inventory of the
technology infrastructure in the state, to create an innovation
center to promote technology in the state, and to authorize local
government to construct, acquire, own, lease, and sell technology
infrastructure system and provide related services in the state.
This article is new; therefore, underscoring and strike-
throughs have been omitted.)