Senate Bill No. 492
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
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[Introduced February 21, 1994;
referred to the Committee on Finance.]
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A BILL to amend chapter thirty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, 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 otherfinancial 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 district 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 infrastructurerequirements 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 ofall 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 totheir 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 theplanning, 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 developmentcouncil, 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 objectivesof 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 ofthis 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 otherwastes, 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, andare 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 conductits 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, ifany, 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 councilduring 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 stategenerally. 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 projectsponsor 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 thecouncil 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 theaggregate 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 ofrepayment 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 andaccept 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 notesshall 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 andbinding 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 ofany 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 minimumreserve 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 theprovisions 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 thepublic 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 suchpurchase 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 accordancewith 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 setforth 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.