H. B. 4562


(By Mr. Speaker (Mr. Chambers) and Delegate Burk)
(By Request of the Executive)
[Introduced February 22, 1994; referred to the
Committee on Finance.]



A BILL to amend chapter thirty-one of said code by adding thereto a new article, designated article fifteen-a, relating to the establishment of a state infrastructure and jobs development council and creating a source of funding for water, wastewater and other infrastructure projects in the state; finding that the construction and improvement of infrastructure projects are essential to the health and prosperity of state residents and the economic growth of the state; setting forth definitions; creating state infrastructure and jobs development council to coordinate the evaluation of disbursement of funds for water, wastewater and other infrastructure projects and designating members of the council; requiring council to develop uniform guidelines for use by state agencies in evaluating funding requests for infrastructure projects, and to create a preliminary application form to be used by all persons making such funding requests; providing that no person may receive funding assistance from any state agency for any infrastructure project unless such application is used and except as recommended by council; setting forth powers of council; exempting certain infrastructure projects which council determines are emergency projects from requirement to obtain certificate of public convenience and necessity from state public service commission and requiring public service commission to review requests for such certificates with respect to certain other emergency projects within specified time periods; requiring the water development authority to establish and administer two permanent and special funds, one to be known as the West Virginia infrastructure debt service fund, permitting West Virginia water development authority to deposit moneys in infrastructure fund in one or more banking institutions; authorizing council to use funds in infrastructure construction fund to make loans, loan guarantees, grants and to provide other financial assistance to finance all or part of an infrastructure project; providing the council additional powers in connection with infrastructure project; authorizing West Virginia water development authority to issue infrastructure revenue bonds and refunding bonds in such amounts as the council deems necessary to finance loans, loan guarantees and grants and to provide other financial assistance to persons sponsoring infrastructure projects, and setting forth procedures for issuance of such bonds; authorizing West Virginia water development authority to issue infrastructure revenue notes and bond anticipation notes; permitting such bonds and notes to be secured by a trust agreement between the council and a corporate trustee, which may be a trust company or banking institution; setting forth legal remedies of bondholders; prohibiting the commissioners of the public service distirct and the council, and West Virginia water development authority officers and directors from receiving benefits or distributions from infrastructure fund and infrastructure debt service fund; declaring that infrastructure revenue bonds are lawful investments for banking institutions and other financial institutions and insurance companies; authorizing West Virginia water development authority to purchase bonds and notes; declaring that infrastructure revenue bonds and refunding bonds are not debt of state or any county, municipality or political subdivision thereof, and that the income and interest therefrom are exempt from taxation; declaring that infrastructure projects financed by West Virginia water development authority shall not be deemed to be "public improvements" within meaning of article five-a, chapter twenty of the code; setting forth rules of construction and declaring that provisions are severable.

Be it enacted by the Legislature of West Virginia:

That chapter thirty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article fifteen-a, to read as follows:

ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT COUNCIL.

§ 31-15A-1. Short title.

This article shall be known and may be cited as the "West Virginia Infrastructure and Jobs Development Act."

§ 31-15A-2. Legislative findings; declaration of policy and responsibility; purpose and intent of article.

(a) The Legislature hereby finds that (1) numerous areas throughout the state are unable to attract new businesses and in some cases retain existing businesses due to the lack of available industrial and commercial buildings and building sites adequately serviced by water, wastewater and other necessary infrastructure facilities and requirements, (2) in this age of intense regional and global competition for jobs and economic growth, when the mobility of businesses and jobs is accelerating at an increasing rate, the absence of such available buildings and building sites and other infrastructure facilities places the state at a significant disadvantage in attracting new or retaining existing jobs, and (3) the economic growth and prosperity of this state require that the state be able to respond quickly and effectively to the infrastructure requirements of businesses seeking to remain, expand or relocate in the state.

(b) The Legislature hereby finds further that (1) the groundwaters of the state are adversely affected by untreated or inadequately treated wastewater in violation of both state and federal clean water regulations, (2) the sources of potable water are endangered by untreated or inadequately treated wastewater, (3) numerous areas throughout the state have inadequate wastewater and water facilities, or have water and wastewater facilities operating at or exceeding design capacity, or are otherwise not in compliance with applicable federal standards; or are not serviced by any such facilities, which inadequate or nonexistent facilities pose health risks to the residents of this state, (4) municipalities and public service districts located in the state are generally unable to finance independently the acquisition and construction of new or improved wastewater and water facilities, (5) the unavailability of adequate wastewater and water facilities and buildings and building sites hinders economic development and thereby impairs and further threatens the economic stability of the state, and (6) these conditions are inimical to the health, welfare and prosperity of all residents of the state and also impede the economic growth of the state.
(c) The Legislature hereby finds further that the construction and improvement of new and existing water and wastewater facilities and buildings and building sites for commercial and industrial development, and the construction of all necessary infrastructure facilities on such sites, are critical to the stability, growth and diversification of the state's economy, and to enable the state to be economically competitive with other states and nations.
(d) The Legislature hereby finds further that although there currently exist numerous state agencies intended to provide financial assistance in the construction and development of such sites and infrastructure facilities, the total amount of such financial assistance available is inadequate to satisfy the need for such assistance.
(e) The Legislature hereby finds further that no agency or body exists within state government to coordinate the actions of the various state agencies which provide financing and technical assistance to municipal, county and other local governmental entities seeking assistance in developing the infrastructure of their respective areas in the state so as to maximize the allocation of the state's limited resources in the most effective, efficient and equitable manner possible, and that the absence of such a coordinating body has resulted in a duplication of efforts and resultant inefficiencies at all levels of government and thus has increased the time and cost required for communities to receive needed financing and other requested assistance.
(f) The Legislature hereby finds further that the lack of coordination among state agencies hereinabove described has impeded the ability of communities to respond effectively to their infrastructure needs and has therefore impeded the economic growth of the state generally.
(g) The Legislature hereby finds further that in certain instances economic development in the state will be facilitated by eliminating the need for a community seeking to construct the necessary infrastructure facilities to retain existing or attract new businesses to obtain a certificate of public convenience and necessity from the public service commission, or by reducing the time required for obtaining such a certificate.
(h) It is the purpose and intent of the Legislature in enacting this legislation to (1) make possible a multiagency effort to reduce the cost and time required for communities to receive a consistent, definitive review of their projects and a response to their requests for infrastructure funding assistance, and to allocate the state's limited resources in the most effective, efficient and equitable manner possible, and thereby increase the effectiveness of state agencies which administer funds and provide technical expertise in the construction and development of infrastructure facilities, (2) in certain limited circumstances eliminate the need for obtaining a certificate of public convenience and necessity or reduce the time allowed for the public service commission to render a decision with respect to applications for certificates of public convenience and necessity, and (3) provide an additional source of funds for grants, low-interest loans, loan guaranties and other financial assistance to state and local governmental bodies for the planning, acquisition, construction and improvement of wastewater and water facilities, commercial and industrial building and building sites and improvements thereon and other infrastructure facilities throughout the state which cannot be financed with traditional funding sources.
(i) The Legislature hereby finds and declares further that it is in the public interest, in order to accomplish the aforesaid purpose and intent, that a state instrumentality be created to coordinate the evaluation of and the disbursement of funds for water, wastewater and other infrastructure projects in the state, and that such state instrumentality be granted all powers necessary and appropriate to accomplish and carry out the aforesaid purpose and intent.
(j) The Legislature further finds and declares that the purpose and intent of this legislation cannot be implemented and discharged effectively without the creation of the West Virginia infrastructure and jobs development council. The Legislature further finds and declares that in accomplishing this purpose and intent, the West Virginia infrastructure and jobs development council will be acting in all respects for the benefit of the residents of this state to serve the public purpose of protecting and improving the water quality and quantity in the state and creating or maintaining industrial and commercial buildings and building sites for economic development and otherwise promoting the health, welfare and prosperity of the citizens of this state, and that the West Virginia infrastructure and jobs development council, so created and established, is hereby empowered to act on behalf of the state and its residents in serving this public purpose for the benefit of the general public of this state.
§ 31-15A-3. Definitions.

For purposes of this article:

(a) "Bond" or "infrastructure revenue bond" means a revenue bond, note or other obligation issued by the West Virginia water development authority pursuant to this article, including bonds or notes to refund such bonds or renew notes, and notes issued in anticipation of and payable from the proceeds of such bonds.
(b) "Bureau of public health" means the state bureau of public health created in article one, chapter sixteen of this code, or any successor to all or any substantial part of its powers and duties.
(c) "Code" means the code of West Virginia, one thousand nine hundred thirty-one, as amended.
(d) "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 thereof; 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 such acquisition, repair, improvement or construction; 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 such project; the cost of placing any such 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 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 West Virginia water development authority has not determined to be consistent with the purposes and objectives of this article.
(e) "Council" means the West Virginia infrastructure and jobs development council created in section four of this article.
(f) "Division of environmental protection" means the division 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.
(g) "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) "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 such area if construction of the project is not commenced immediately.
(i) "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 infrastructure projects.
(j) "Infrastructure fund" means the West Virginia infrastructure fund created and established in section nine of this article.
(k) "Infrastructure debt service fund" means the debt service fund created and established in section eleven of this article.
(l) "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 such project is developed, for retail, 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, facilities for vocational or other training or to provide medical care and other special needs of persons residing in the state, sports complexes and cultural, artistic and other exhibition centers, 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 such project or any part thereof or interest therein, and (2) preparing land for construction and making, installing or constructing improvements thereon, 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) "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 West Virginia water development authority for the purposes of this article.
(n) "Project" means any wastewater facility, water facility or infrastructure project, or any combination thereof, constructed or operated or to be constructed or operated by a project sponsor.
(o) "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.
(p) "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.
(q) "Person" means any individual, corporation, partnership, association, limited liability company or any other form of business organization.
(r) "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.
(s) "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.
(t) "State infrastructure agency" means the bureau of public health, division of environmental protection, West Virginia water development authority, public service commission, state development office, 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.
(u) "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.
(v) "Water development authority" means the West Virginia water development authority established under article five-c, chapter twenty of this code, or any successor to all or any substantial part of its powers and duties.
(w) "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.
§ 31-15A-4. West Virginia infrastructure and jobs development council created; members of council; staff of council.

(a) There is hereby created the West Virginia infrastructure and jobs development council. The council shall be a governmental instrumentality of the state. The exercise by the council of the powers conferred by this article and the carrying out of its purpose and duties shall be deemed and held to be, and are hereby determined to be, essential governmental functions and for a public purpose.

(b) The council shall consist of seven members, including the director of the division of environmental protection or his or her designee; the director of the economic development authority or his or her designee; the director of the water development authority or his or her designee; the executive director of the state development office or his or her designee; the commissioner of the bureau of public health or his or her designee; and the chairman of the public service commission or his or her designee. The commissioner of the division of highways, the executive director of the railroad maintenance authority shall serve as advisory members.
(c) The council shall annually elect one of its members as chairman, and shall appoint a secretary, who need not be a member of the council and who shall keep records of its proceedings. Four members of the council shall constitute a quorum and the affirmative vote of at least the majority of those members present shall be necessary for any action taken by vote of the council. No vacancy in the membership of the council shall impair the rights of a quorum by such vote to exercise all the rights and perform all the duties of the council.
(d) No member of the council shall receive any compensation or reimbursement of expenses for serving as a member.
(e) The council shall meet at least monthly to review projects requesting funding assistance and otherwise to conduct its business, and shall meet more frequently if it deems necessary.
(f) Public service commission shall provide office space for the council, and each governmental agency represented on the council shall provide staff support for the council in such manner as determined by the council from time to time.
(g) The council shall invite to all its meetings one or more representatives of the United States department of agriculture, farmers home administration, the United States economic development agency and the United States army corps of engineers or any successors thereto.
§ 31-15A-5. Development of guidelines and preliminary application for funding assistance.

(a) To implement and carry out the intent of this article, the council shall develop comprehensive, uniform guidelines for use by the council and other state infrastructure agencies in evaluating any request by a project sponsor for funding assistance to plan, acquire, construct, improve or otherwise develop a project. The guidelines shall take into account the following considerations:

(1) Developing a uniform methodology for evaluating a project sponsor's financing capacity, including, but not limited to, its ability to repay any funds loaned to it;
(2) Ensuring that each project is completed in the most cost-effective manner possible;
(3) Ensuring that all nonpublic funding alternatives, if any, to receiving funding assistance from state infrastructure agencies have been exhausted by the project sponsor requesting such assistance;
(4) Reducing the cost and time required for project sponsors to receive a response for funding assistance;
(5) Such other considerations as the council may deem necessary or appropriate to accomplish the purpose and intent of this article.
(b) The council shall create a preliminary application form which shall be used by all project sponsors requesting funding assistance from state infrastructure agencies to plan, acquire, construct, improve or otherwise develop a project. The preliminary application form shall contain all information required by all state infrastructure agencies that will be required to issue permits and/or certificates regarding the project. The preliminary application shall require the project sponsor to set forth the type and proposed location of the project; the estimated total cost of the project; the amount of funding assistance required and the specific uses of such funding; other sources of funding available or potentially available for the project; information demonstrating the need for the project and that the proposed funding of the project is the most economically feasible and viable alternative to completing the project; and such other information as the council deems necessary to enable it to recommend the type of project financing, in terms of the kind, amount and source of funding, which the project sponsor should pursue and which the state infrastructure agency or agencies should consider an appropriate investment of public funds, and to otherwise carry out the intent of this article.
§ 31-15A-6. Requirements for project funding assistance; review of project preliminary applications by council.

(a) No project sponsor may apply for or receive any loan, loan guarantee, grant or other funding assistance for a project from any state infrastructure agency (1) unless the project sponsor requiring such funding assistance first submits a completed preliminary application to the council on the form prepared for such purpose by the council pursuant to section five of this article, and (2) except as may be recommended by the council after consideration of such preliminary application.

(b) The council shall, within thirty days of receipt of each completed preliminary application submitted to it, review the preliminary application and either (1) make a written recommendation as to the project financing, in terms of the kind, amount and source of funding, which the project sponsor submitting the application should pursue and which the state infrastructure agency or agencies should consider an appropriate investment of public funds, or (2) if the council determines that (i) the proposed project is not eligible for funding assistance from any state infrastructure agency, (ii) such funding assistance should be considered a low funding priority in relation to all other funding requests submitted to the council during the then current state fiscal year, or (iii) the proposed project is not otherwise an appropriate or prudent investment of state funds, the council shall recommend that the project sponsor not seek funding from any state infrastructure agency. A project sponsor shall include the preliminary application and the council's recommendations in any application to a state infrastructure agency.
(c) The council shall provide a copy of its recommendation with respect to each preliminary application, together with a copy of the preliminary application, to all appropriate state infrastructure agencies, which shall take into account the council's recommendations with respect to a project before taking any action with respect to such project. No state infrastructure agency shall take any action inconsistent with the recommendation of the council unless the governing body of such agency, or the head of such agency if it has no governing body, shall expressly find and determine that such recommendation is based upon incorrect or incomplete facts or is otherwise not in the best interest of the state or the area in which the proposed project is to be located.
(d) In reviewing each preliminary application, the council shall use the engineering, financial and technical expertise of the respective staffs of the state infrastructure agencies represented on the council so as to recommend for funding those projects which are consistent with the purposes and intent of this article and with the policies and priorities of this state generally. The council may include in its findings a recommendation that a state infrastructure agency consider technical reports on the project prepared by other infrastructure agencies or by any federal agency.
§ 31-15A-7. Powers, duties and responsibilities of the council generally.

In addition to the powers set forth elsewhere in this article, the council is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the purposes and intent of this article. The council shall have the power and capacity to:

(1) Provide consultation services to project sponsors in connection with the planning, acquisition, improvement, construction or development of any project.
(2) Periodically prepare a list of projects which cannot meet the established funding guidelines of the various state infrastructure agencies, other than the public service commission, but which are consistent with the mandates of this article and recommend to the council that it make a grant or loan to the project sponsors from the infrastructure fund to finance the cost of one or more such projects.
(3) Do all other acts necessary and proper to carry out the powers expressly granted to the authority in this article.
§ 31-15A-8. Exemption of certain emergency projects from certificate of public convenience and necessity requirements; review of certain emergency projects by public service commission.

(a) If the council determines a project to be an emergency project and such emergency project will be funded solely with grant money for the extension of an existing certificated water facility or wastewater facility, and if the council finds in its recommendation that the construction and acquisition of the emergency project will have no effect on the public utility's customer rates and will have no significant effect on its operational costs as a result of the project cost, then such emergency project shall be exempt from the requirement to obtain a certificate of public convenience and necessity under section eleven, article two, chapter twenty-four of this code. If the public utility is a public service district, it shall be exempt from the approval of the public service commission required under section twenty-five, article thirteen-a, chapter sixteen of this code.

(b) Any public utility, and any other entity that will operate as a public utility, must obtain a certificate of public convenience and necessity pursuant to section eleven, article two, chapter twenty-four of this code for any emergency project that is not exempt under subsection (a) of this section. The public service commission shall render its final decision on any application for such certificate within one hundred twenty days of the filing of the application: Provided, That the thirty-day notice requirement under section eleven, article two, chapter twenty-four of the code shall not be required. If the project sponsor is a public service district, then such a project will be exempted from the approval requirements of section twenty-five, article thirteen-a, chapter sixteen of the code.
(c) Projects that are not emergency projects shall be subject to the requirements of section eleven, article two, chapter twenty-four of this code to the extent they would be otherwise.
§ 31-15A-9. Infrastructure fund; deposits in fund; disbursements to provide loans, loan guarantees, grants and other assistance and to pay debt service on infrastructure revenue bonds; loans, loan guarantees, grants and other assistance shall be subject to assistance agreements.

(a) The West Virginia water development authority shall establish, administer and manage a separate, permanent and special fund which shall be designated and known as the "West Virginia Infrastructure Fund." The infrastructure fund shall consist of (1) infrastructure revenues, (2) any appropriations, grants, gifts, contributions, loan proceeds or other revenues received by the infrastructure fund from any source, public or private, other than any proceeds received from the issuance of any infrastructure revenue bonds, (3) amounts received as payments on any loans made by the West Virginia water development authority to pay for the cost of a project, (4) insurance proceeds payable to the West Virginia water development authority or the infrastructure fund in connection with any project, and (5) all income earned on moneys held in the infrastructure fund. Amounts in the infrastructure fund shall be segregated and administered by the West Virginia water development authority separate and apart from its other assets and programs. Amounts in the infrastructure fund may not be transferred to any other fund or account or used, other than indirectly, for the purposes of any other program of the public service commission or the West Virginia water development authority, except that the public service commission or the West Virginia water development authority may use funds in the infrastructure fund to reimburse itself for any administrative costs incurred by it in connection with any loan, loan guarantee, grant or other funding assistance made by the West Virginia water development authority pursuant to this article or in connection with the issuance of any infrastructure revenue bonds.

(b) Notwithstanding any provision of this code to the contrary, amounts in the infrastructure fund may be deposited by the public service commission in one or more banking institutions selected by the public service commission. Pending the disbursement of any money from the infrastructure fund as authorized under this section or section eleven, the West Virginia water development authority shall invest and reinvest said moneys subject to the limitations set forth in article eighteen, chapter thirty-one of this code.
(c) To further accomplish the purpose and intent of this article, the council may use the moneys in the infrastructure fund, upon receipt of one or more recommendations from the council pursuant to section six of this article, 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 a project or projects to be undertaken by a project sponsor: Provided, That no loan, loan guarantee, grant or other assistance shall be made or provided except upon a determination by the council that such 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 to the council. Applications for loans, loan guarantees, grants or other assistance may be submitted by a project sponsor for one or more projects from time to time, and shall be submitted in the manner and on the preliminary application form prepared by the council pursuant to section five of this article. Any resolution of the council approving a loan, loan guarantee, grant or other assistance shall include a finding and determination by the council that the requirements of this section have been met, which shall be conclusive.
(d) To further accomplish the purposes and intent of this article, the West Virginia water development authority may from time to time establish one or more restricted accounts within the infrastructure fund for the purpose of providing funds to guarantee loans for projects: Provided, That for any fiscal year the West Virginia water development authority may not deposit into such restricted accounts more than twenty percent of the aggregate amount of infrastructure revenues deposited into the infrastructure fund during such fiscal year. No loan guarantee shall be made pursuant to this article unless recourse under such loan guarantee is limited solely to amounts in such restricted account or accounts. No person shall have 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.
(e) To further accomplish the purposes and intent of this article, the West Virginia water development authority may pledge infrastructure revenues to the payment of the principal of, and the premium, if any, and interest on, any infrastructure revenue bonds, and payment of such infrastructure revenues may be applied to the infrastructure revenue bonds, to the funding of a reserve or reserves for such bonds, and to the payment of the costs associated with the issuance and maintenance of such bonds.
(f) Each loan, loan guarantee, grant or other assistance made or provided by the West Virginia water development authority shall be evidenced by a loan, loan guarantee, grant or assistance agreement between the council 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 provisions:
(1) The estimated cost of the 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 proceeds shall be expended or the benefits to accrue from such 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 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 council or other state, federal or local bodies regarding the acquisition, construction, improvement or operation of the project and granting the council the right to appoint a receiver for the project if the project sponsor should default on any terms of the agreement.
§ 31-15A-10. Additional powers of the council.

To accomplish the purpose and intent of this article, the 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 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 project financed, in whole or in part, or otherwise assisted by the 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, and (4) establish and amend the criteria and qualifications for making loans, loan guarantees or grants, or providing any other assistance, for any project, and the terms of any loans, loan guarantee, grant or assistance agreement for any project.

§ 31-15A-11. West Virginia water development authority empowered to issue infrastructure revenue bonds and refunding bonds; creation of infrastructure debt service fund; funding of infrastructure debt service fund; requirements and manner of such issuance.

(a) To accomplish the purpose and intent of this article, the West Virginia water development authority is hereby empowered to issue from time to time infrastructure revenue bonds in such principal amounts as the council deems necessary to make loans, loan guarantees and grants and other forms of financial assistance to project sponsors for one or more projects: Provided, That the West Virginia 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 projects expected to be constructed during any annual period exceeds the projected annual infrastructure revenues for the same period, and principal and interest payments due the council on all outstanding loans to projects previously made by the council.

(b) The proceeds of infrastructure revenue bonds or notes shall be used solely for the purpose of making loans, loan guarantees and grants and other forms of financial assistance to project sponsors for one or more projects and shall be deposited in one or more special accounts with the trustee under the trust agreement securing such bonds or notes and disbursed from time to time for projects as determined by the council.
(c) The council may not authorize the disbursement of any proceeds of infrastructure revenue bonds unless it shall have received documentation sufficient to allow it to determine that such distribution is consistent with the purposes and intent of this article.
(d) There is hereby created in the council a special fund which shall be designated and known as the "West Virginia Infrastructure Debt Service Fund," into which shall be deposited the amounts certified by the executive director of the West Virginia water development authority as necessary to pay the principal, premium, if any, and interest on infrastructure revenue bonds or notes and any reserve requirements, subject to the terms of any agreement with the holders of the infrastructure bonds. All amounts deposited in the infrastructure debt service fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any infrastructure revenue bonds or notes or refunding revenue bonds authorized by this article: Provided, That amounts on deposit in such fund may be used to establish or maintain reserves created for the purposes of securing such bonds or notes. Such pledge shall be valid and binding from the time the pledge is made, and the infrastructure debt service fund so pledged shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act, and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the West Virginia water development authority irrespective of whether such parties have notice thereof.
(e) Except as may otherwise be expressly provided in this article or by the West Virginia water development authority by resolution, every issue of infrastructure revenue bonds or notes shall be special obligations of the West Virginia water development authority payable solely from amounts in the infrastructure debt service fund and infrastructure fund, and the reserves created for such purposes by the West Virginia water development authority, without preference or priority among the bonds regardless of when issued, subject only to any agreements with the holders of any such bonds or notes to the contrary. All such bonds and notes are hereby declared to be negotiable instruments.
(f) The infrastructure revenue bonds, notes, bond anticipation notes and refunding bonds shall be authorized by resolution of the West Virginia water development authority, shall bear such date and shall mature at such time, in case of any such note or any renewal thereof not exceeding five years from the date of issue of such original note, and in the case of any such bond not exceeding fifty years from the date of issue, as such resolution may provide. The infrastructure revenue bonds or notes shall bear interest at such rate or rates, including variable rates, taxable or tax-exempt, be in such denominations, be in registered form, carry such registration privileges, be payable in such medium of payment, in such place and be subject to such terms of redemption as the West Virginia water development authority may authorize. The infrastructure revenue bonds or notes may be sold by the West Virginia water development authority at public or private sale, at the price the West Virginia water development authority determines. The bonds or notes shall be executed by the chairman or the executive director of the West Virginia water development authority who may use a facsimile signature. The official seal of the West Virginia water development authority or a facsimile thereof shall be affixed thereto or printed thereon and attested, by manual or facsimile signature by the secretary or assistant secretary of the West Virginia water development authority. If any officer whose signature, or a facsimile of whose signature appears on any bonds or notes ceases to be such officer before delivery of such bonds, 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 West Virginia water development authority has been changed after a facsimile has been imprinted on such bonds, such facsimile will continue to be sufficient for all purposes.
(g) Any resolution authorizing any infrastructure revenue bonds or notes may contain provisions (subject to such agreements with bondholders or noteholders as may then exist, which provisions shall be a part of the contract with the holders thereof) with respect to the pledge of or other use and disposition of infrastructure revenues or other revenues of the West Virginia water development authority; the setting aside of reserve funds, the use, lease, sale or other disposition of any assets of the West Virginia water development authority; limitations on the purpose to which the proceeds of sale of bonds or notes may be applied; notes issued in anticipation of the issuance of bonds; the agreement of the West Virginia 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 or notes; the terms upon which additional bonds or notes may be issued and secured; the refunding of outstanding bonds or 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 or notes 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 or notes.
(h) In the event that the sum of all reserves pledged to the payment of such bonds or notes shall be less than the minimum reserve requirements established in any resolution or resolutions authorizing the issuance of such bonds or notes, the chairman or the executive director of the council shall certify, on or before the first day of December 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 council to be pledged for payment of such bonds or notes: Provided, That the Legislature shall not be required to make any appropriations so requested, and the amount of such deficiencies shall not constitute a debt or liability of the state.
(i) Neither the officers or directors of the West Virginia water development authority nor any person executing the infrastructure revenue bonds or notes shall be liable personally on the bonds or notes or be subject to any personal liability or accountability by reason of the issuance thereof.
§ 31-15A-12. Trustee for infrastructure revenue bondholders; contents of trust agreement.

(a) Any infrastructure revenue bonds or notes or infrastructure revenue refunding bonds issued by the West Virginia water development authority under this article shall be secured by a trust agreement between the West Virginia 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 such trust agreement may pledge or assign infrastructure revenues of the West Virginia water development authority to be received. Any such trust agreement or any resolution providing for the issuance of such bonds or notes 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 the provisions contained in section eleven of this article and covenants setting forth the duties of the council in relation to provisions regarding 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 such bonds or notes, 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 notes or of the infrastructure debt service fund shall furnish such indemnifying bonds or pledge such securities as are required by the West Virginia water development authority. Any such 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. Such trust agreement may contain such other provisions as the West Virginia 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.
§ 31-15A-13. Legal remedies of infrastructure revenue bondholders or noteholders and trustees.

Any holder of infrastructure revenue bonds or notes 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 such 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 such bonds or notes, 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 West Virginia water development authority or the council or any officer thereof.

§ 31-15A-14. Prohibition on funds inuring to the benefit of or being distributable to directors or officers; transactions between the council and West Virginia water development authority and directors or officers having certain interests in such transactions.

No part of the infrastructure fund shall inure to the benefit of or be distributable to the commissioners of the public service commission, the council, or West Virginia water development authority's directors or officers except that the public service commission shall be authorized and empowered to pay reasonable compensation. The council may make loans and exercise its other powers as previously specified in furtherance of its corporate purpose: Provided, That no such loans shall be made, and no property shall be purchased or leased from, or sold, leased or otherwise disposed of, to any commissioner, director or officer of the council or the public service commission or the West Virginia water development authority.

§ 31-15A-15. Infrastructure revenue bonds lawful investments.

All infrastructure revenue bonds issued pursuant to this article shall be lawful investments for banking institutions, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations, trust companies, insurance companies, including domestic for life and domestic not for life insurance companies.

§ 31-15A-16. Purchase and cancellation of notes or bonds.

(a) The West Virginia 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 infrastructure revenue bonds or notes of the West Virginia water development authority.

(b) If the infrastructure revenue bonds or notes are then redeemable, the price of such purchase shall not exceed the redemption price then applicable plus accrued interest to the next interest payment date thereon. If the infrastructure revenue bonds or notes are not then redeemable, the price of such purchase shall not exceed the redemption price applicable on the first date after such purchase upon which the bonds become subject to redemption plus accrued interest to such date. Upon such purchase such bonds or notes shall be canceled.
§ 31-15A-17. Refunding bonds.

Any infrastructure revenue bonds issued hereunder and at any time outstanding may at any time and from time to time be refunded by the West Virginia water development authority by the issuance of its refunding bonds in such amount as it may deem necessary to refund the principal of the bonds to be refunded, together with any unpaid interest thereon; to provide additional funds for the purpose of the West Virginia water development authority to accomplish the purpose of this article; and to pay any premiums and commissions necessary to be paid in connection therewith. Any such refunding may be effected whether the infrastructure revenue bonds to be refunded shall have then matured or shall thereafter mature: Provided, That the holders of any infrastructure revenue bonds so to be refunded shall not be compelled without their consent to surrender their 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 bonds issued pursuant to this article shall be payable from the infrastructure debt service fund, and shall be subject to the provisions contained in section eleven of this article and shall be secured in accordance with the provisions of sections eleven and twelve of this article.

§ 31-15A-18. Infrastructure revenue bonds or notes not debt of state, county, municipality or of any political subdivision.

Infrastructure revenue bonds or notes and infrastructure revenue refunding bonds issued under the authority of this article shall 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, and the holders or owners thereof shall have no right to have taxes levied by the Legislature or taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon, but such bonds shall be payable solely from the revenues and funds pledged for their payment as authorized by this article, unless the notes are issued in anticipation of the issuance of bonds or the bonds are refunded by refunding bonds issued under authority of this article, which infrastructure refunding bonds shall be payable solely from revenues and funds pledged for their payment as authorized by this article. All such bonds and notes shall contain on the face thereof a statement to the effect that the bonds or notes, 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-19. Infrastructure revenue bonds or notes exemption from taxation.

The exercise of the powers granted to the West Virginia 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 infrastructure projects will constitute the performance of essential governmental functions, the West Virginia water development authority shall not be required to pay any taxes or assessments upon any project or upon any property acquired or used by the West Virginia water development authority or upon the income therefrom. The infrastructure revenue bonds and notes and the infrastructure refunding bonds and all interest and income thereon shall be exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof, except inheritance taxes.

§ 31-15A-20. Termination of dissolution.

Upon the termination or dissolution of the West Virginia water development authority, all rights and properties of the West Virginia water development authority with respect to the infrastructure fund shall pass to and be vested in the state, subject to the rights of bondholders, lienholders and other creditors.

§ 31-15A-21. Projects not to be deemed public improvements.

No project acquired, constructed, maintained or financed, in whole or in part, by the West Virginia water development authority shall be deemed to be a "public improvement" within the meaning of the provisions of article five-a, chapter twenty-one of this code, as a result of such financing.

§ 31-15A-22. Rules of construction; severability.

(a) If any section, subsection, subdivision, provision, clause or phrase of this article or the application thereof to any person or circumstances is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, subdivisions, provisions, clauses or phrases or applications of the article, and to this end each and every section, subsection, subdivision, provision, clause and phrase of this article is declared to be severable. The Legislature hereby declares that it would have enacted the remaining sections, subsections, provisions, clauses and phrases of this article even if it had known that any sections, subsections, subdivisions, provisions, clauses and phrases thereof would be declared to be unconstitutional or invalid, and that it would have enacted this article even if it had known that the application thereof to any persons or circumstance would be held to be unconstitutional or invalid.

(b) The provisions of subsection (a) of this section shall apply to all future amendments or additions to this article, with like effect as if the provisions of said subsection (a) were set forth in extenso in every such amendment or addition and were reenacted as a part thereof.
(c) In the event of any conflict between any provision of this article and any other provision of this code, any such other provision shall be construed and applied so as to enable the council to implement and make effective the provisions of this article.



NOTE: The purpose of this bill is to create a West Virginia infrastructure and jobs development council to coordinate the application for state funds for infrastructure and economic growth projects; to eliminate duplication of requirements by the various state agencies; and to expedite the construction of infrastructure projects throughout the state thereby aiding and enhancing economic development. The bill also establishes an infrastructure fund and infrastructure debt service fund to be managed by the West Virginia water development authority, which fund would be funded with appropriations. The bill authorizes the West Virginia water development authority to issue infrastructure bonds to provide moneys to make grants, loans and other financial assistance to facilitate infrastructure and economic growth throughout the state. Money in the infrastructure fund would be available to provide funding for nontraditional (nonrevenue supported) projects, such as site development, and to supplement traditional infrastructure projects.

Article fifteen-a, chapter thirty-one is new; therefore, strike-throughs and underscoring have been omitted.