Senate Bill No. 621
(By Senators Bowman, Wooton, Ball, Dittmar, Fanning, Hunter,
Kessler, Oliverio, Ross, Snyder, Buckalew, Deem, Kimble and Scott)
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[Originating in the Committee on the Judiciary;
reported February 19, 1998.]
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A BILL to amend and reenact sections two, eight, ten, eleven,
thirteen and sixteen, article fifteen-a, chapter thirty-one of
the code of West Virginia, one thousand nine hundred thirty- one, as amended; to further amend said article by adding
thereto eight new sections, designated sections seventeen,
eighteen, nineteen, twenty, twenty-one, twenty-two, twenty- three and twenty-four; and to amend and reenact section two,
article fifteen-b of said chapter, all relating to
infrastructure development generally; defining infrastructure
revenue bond; legislative rules establishing uniform statewide
percentage of the median household income in a particular
geographic area; prohibiting water development board members
and water development authority officers from receiving any
benefit or distribution from West Virginia infrastructure
revenue debt service fund; exceptions; increasing portion of dedicated tax to be deposited into infrastructure government
obligation debt service fund; authorizing water development
authority to issue infrastructure revenue bonds; restrictions;
permitted uses of revenue bond proceeds; required
documentation from infrastructure council; creation of West
Virginia infrastructure revenue debt service fund; sources of
funding of revenue debt service fund; purposes for which
revenue debt service fund may be used; procedures for the
issuance of revenue bonds; revenue bond requirements;
authorized revenue bond provisions and agreements; procedures
for certification of deficiency in reserves pledged for
payment of revenue bonds; liability of water development board
members and water development authority officers; trust
agreements required to secure revenue bonds; required and
authorized trust agreement provisions; requirements of
depositories of funds; remedies of bondholders; legality of
investments in revenue bonds; redemption and refunding of
revenue bonds; providing that revenue bonds do not constitute
debt or pledge of state; exemption from taxation; and
increasing limitation on amount of outstanding government
obligation bonds.
Be it enacted by the Legislature of West Virginia:
That sections two, eight, ten, eleven, thirteen and sixteen,
article fifteen-a, chapter thirty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto
eight new sections, designated sections seventeen, eighteen,
nineteen, twenty, twenty-one, twenty-two, twenty-three and twenty- four; and that section two, article fifteen-b of said chapter be
amended and reenacted, all to read as follows:
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-2. Definitions.
For purposes of this article:
(a) "Bond" or "infrastructure revenue bond" means a revenue
bond, note, or other obligation issued by the water development
authority pursuant to this article, including bonds to refund such
bonds and notes to renew such notes, and notes in anticipation of
and payable from the proceeds of such bonds.
(a)(b) "Code" means the code of West Virginia, one thousand
nine hundred thirty-one, as amended;
(b)(c) "Cost" means, as applied to any project to be financed,
in whole or in part, with infrastructure revenues or funds
otherwise provided pursuant to this article, the cost of planning,
acquisition, improvement and construction of the project; the cost
of preliminary design and analysis, surveys, borings; the cost of
environmental, financial, market and engineering feasibility
studies, assessments, applications, approvals, submissions or
clearances; the cost of preparation of plans and specifications and
other engineering services; the cost of acquisition of all land, rights-of-way, property rights, easements, franchise rights and any
other interests required for the acquisition, repair, improvement
or construction of the project; the cost of demolishing or removing
any buildings or structures on land so acquired, including the cost
of acquiring any lands to which buildings or structures may be
moved; the cost of excavation, grading, shaping or treatment of
earth, demolishing or removing any buildings or structures; the
cost of constructing any buildings or other improvements; the cost
of all pumps, tanks, vehicles, apparatus and other machinery,
furnishings and equipment; loan or origination fees and all finance
charges and interest incurred prior to and during the construction
and for no more than six months after completion of construction;
the cost of all legal services and expenses; the cost of all plans,
specifications, surveys and estimates of cost; all working capital
and other expenses necessary or incident to determining the
feasibility or practicability of acquiring, repairing, improving or
constructing any project; the cost of placing any project in
operation; and all other costs and expenses of any kind or nature
incurred or to be incurred by the project sponsor developing the
project that are reasonable and necessary for carrying out all
works and undertakings necessary or incident to the accomplishment
of any project: Provided, That costs shall not include any amounts
related to the ongoing operations of the owner or operator,
depreciation thereof or any other cost which the council or the
water development authority has not determined to be consistent with the purposes and objectives of this article;
(c)(d) "Council" means the West Virginia infrastructure and
jobs development council created in section three of this article;
(d)(e) "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;
(e)(f) "Division of health" means the division of health
created in article one, chapter sixteen of this code, or any
successor to all or any substantial part of its powers and duties;
(f)(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;
(g)(h) "Emergency project" means a project which the council
has determined (I)(1) is essential to the immediate economic
development of an area of the state and (ii)(2) will not likely be
developed in that area if construction of the project is not
commenced immediately;
(h)(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;
(i)(j) "Housing development fund" means the West Virginia
housing development fund established under article eighteen of this
chapter, or any successor to all or any substantial part of its
powers and duties;
(j)(k) "Infrastructure fund" means the West Virginia
infrastructure fund created and established in section nine of this
article;
(k)(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
the project is developed, for commercial, industrial, community
improvement or preservation or other proper purposes, including,
without limitation, tourism and recreational housing, land, air or
water transportation facilities and bridges, industrial or
commercial projects and facilities, mail order, warehouses,
wholesale and retail sales facilities and other real and personal
properties, including facilities owned or leased by this state or
any other project sponsor, and includes, without limitation (1) the
process of acquiring, holding, operating, planning, financing,
demolition, construction, improving, expanding, renovation, leasing
or otherwise disposing of the project or any part thereof or
interest therein, and (2) preparing land for construction and
making, installing or constructing improvements on the land,
including water or wastewater facilities or any part thereof, steam, gas, telephone and telecommunications and electric lines and
installations, roads, bridges, railroad spurs, buildings, docking
and shipping facilities, curbs, gutters, sidewalks, and drainage
and flood control facilities, whether on or off the site;
(l)(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 water development authority for the
purposes of this article;
(m)(n) "Project" means any wastewater facility, water facility
project or any combination thereof, constructed or operated or to
be constructed or operated by a project sponsor;
(n)(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;
(o)(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;
(p)(q) "Person" means any individual, corporation,
partnership, association, limited liability company or any other
form of business organization;
(q)(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;
(r)(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;
(s)(t) "State infrastructure agency" means the division of
health, division of environmental protection, housing development
fund, public service commission, state development office, water
development authority, economic development authority and any other
state agency, division, body, authority, commission,
instrumentality or entity which now or in the future receives
applications for the funding of, and provides funding or technical
assistance to, the planning, acquisition, construction or
improvement of a project;
(t)(u) "Waste water facility" means all facilities, land and
equipment used for or in connection with treating, neutralizing,
disposing of, stabilizing, cooling, segregating or holding waste
water, 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;
(u)(v) "Water development authority" means the West Virginia
water development authority established under continued pursuant to
the provisions of article five-c one, chapter twenty twenty-two-c
of this code, or any successor to all or any substantial part of
its powers and duties; and
(v)(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-8. Exemption of certain emergency projects from
certificate of public convenience and necessity
requirements; review of certain emergency projects
by public service commission; and exemption for
North Fork Hughes River watershed project.
(a) If the council determines a project to be an emergency and the 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 the emergency project is 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
is 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 a certificate within one hundred twenty days of the
filing of the application: Provided,
That the thirty-day prefiling
requirement is not required. If the project sponsor is a public
service district, then the project will be exempted from the
approval requirements of section twenty-five, article thirteen-a,
chapter sixteen of this code.
(c) Projects that are not emergency projects are subject to
the requirements of section eleven, article two, chapter twenty- four of this code to the extent they would be otherwise.
(d) The North Fork Hughes River watershed project, proposed to
enhance economic growth and development through tourism as provided
in subsection (k)(l), section two of this article and to include a
water facility project as defined in subsection (m)(n), section two
of this article, is hereby specifically exempted from any
requirement imposed by this article, except that the provisions of
subsection (a) of this section are specifically made applicable to
the project. The project is hereby specifically authorized and the
public land corporation shall have and may exercise the power of
eminent domain and all authority otherwise prescribed by law to
acquire necessary land and rights-of-way, to include approximately
four hundred seventy-eight acres, in connection with the project.
Funding for the project shall be provided by the federal government
from the Appalachian regional commission through the United States
soil conservation service. Upon completion of the project, the
property acquired shall be transferred to the state park system.
The commissioner of the division of tourism and parks or the
successor to the commissioner's powers and duties is directed to
expand the boundaries of North Bend state park to include the
project area and to operate the expanded park property, including
improved recreational facilities, from funds appropriated for that
purpose.
§31-15A-10. Recommendations by council for expenditures of funds
by loan, grant or for engineering assistance.
(a) To further accomplish the purpose and intent of this
article, the water development authority shall use the moneys in
the infrastructure fund created pursuant to section nine of this
article, upon receipt of one or more recommendations from the
council pursuant to section five 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 infrastructure projects or projects to be
undertaken by a project sponsor: Provided, That any moneys
disbursed from the infrastructure fund in the form of grants shall
not exceed twenty percent of the total funds available for the
funding of projects. No loan, loan guarantee, grant or other
assistance shall be made or provided except upon a determination by
the council that the loan, loan guarantee, grant or other
assistance and the manner in which it will be provided are
necessary or appropriate to accomplish the purposes and intent of
this article, based upon an application submitted to the council:
Provided, however, That no grant shall be made to a project sponsor
that is not a governmental agency or a not for profit corporation
under the provisions of section 501(c) of the Internal Revenue Code
of 1986, as amended. Applications for loans, loan guarantees,
grants or other assistance may be submitted by a project sponsor
for one or more infrastructure projects on preliminary application forms prepared by the council pursuant to section four of this
article. Any recommendation 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. The council shall base any decisions to loan money
for projects to project sponsors pursuant to this article solely on
the need of the project sponsors.
(b) The council has the authority in its sole discretion to
make grants to project sponsors if it finds that: (1) The level of
rates for the users would otherwise be an unreasonable burden given
the users' likely ability to pay; or (2) the absence of a
sufficient number of users prevents funding of the project except
through grants: Provided, That no project sponsor shall receive
infrastructure grant money in an amount in excess of fifty percent
of the total cost of the project. Therefore, the council may
consider the economic or financial conditions of the area to be
served. As a condition for receipt of a grant under this
subsection, the council may require, in addition to any other
conditions, that the applicant pursue other state or federal grant
or loan programs. Upon a recommendation by the council, the water
development authority shall provide the grant in accordance with
the recommendation. The council shall develop criteria to be
considered in making grants to project sponsors which shall require
consideration of the economic or financial conditions of the area
to be served and the availability of other funding sources. The council shall adopt procedural rules regarding the manner in which
grants will be awarded in conformity with this section. The
procedural rules shall be adopted pursuant to article three,
chapter twenty-nine-a of this code.
(c) The council shall affix a mandatory minimum end user
utility rate that must be met by the project sponsor before grant
assistance may be awarded. The mandatory minimum utility rate
shall be established by legislative rule promulgated in accordance
with article three, chapter twenty-nine-a of this code. The rule
shall provide that the mandatory minimum utility rate be based upon
a uniform statewide percentage of the median household income in a
particular geographic area which is rationally related to the
geographic area of the project to be served: Provided, That the
uniform statewide percentage of the median household income in a
particular geographic area may not exceed six tenths of one per
cent.
(d) No loan or grant funds may be made available for a project
if the project to be funded will provide subsidized services to
certain users in the service area of the project.
(e) Notwithstanding any other provision of this article to the
contrary, engineering studies and requirements imposed by the
council for preliminary applications shall not exceed those
engineering studies and requirements which are necessary for the
council to determine the economic feasibility of the project. If
the council determines that the engineering studies and requirements for the pre-application would impose an undue hardship
on any project sponsor, the council may provide funding assistance
to project sponsors to defray the expenses of the pre-application
process from moneys available in the infrastructure fund for making
loans: Provided, That the council may only provide funding
assistance in an amount equal to five thousand dollars or fifty
percent of the total preapplication cost of the project, whichever
amount is greater. If the project is ultimately approved for a
loan by the council, the amount of funding assistance provided to
the project sponsor for the pre-application process shall be
included in the total amount of the loan to be repaid by the
project sponsor. If the project is not ultimately approved by the
council, then the amount of funding assistance provided to the
project sponsor will be considered a grant by the council and the
total amount of the assistance shall be forgiven. In no event may
the amount of funding assistance provided to all project sponsors
exceed, in the aggregate, one hundred thousand dollars annually.
§31-15A-11. Reservation of funds for projects and infrastructure
projects.
Eighty percent of the funds deposited in the West Virginia
infrastructure fund shall be dedicated for the purpose of providing
funding for the cost of projects as defined in subsection (m)(n),
section two of this article. Twenty percent of the funds deposited
in the West Virginia infrastructure fund shall be dedicated for the
purpose of providing funding for costs of infrastructure projects as defined in subsection (k)(l), section two of this article.
Project sponsors of infrastructure projects shall follow the
application process as established by this article: Provided,
That
notwithstanding any provision of this article to the contrary, all
applications for any infrastructure project shall be submitted to
the council for community and economic development, or its
successor, for review, recommendation and approval regarding
infrastructure project funding.
§31-15A-13. Prohibition on funds inuring to the benefit of or
being distributable to water development board; transactions
between the water development board and officers having
certain interests in such transactions.
No part of the infrastructure fund or the West Virginia
infrastructure revenue debt service fund shall inure to the benefit
of or be distributable to the water development board directors or
officers of the water development authority except that the water
development authority is authorized and empowered to pay reasonable
compensation, other than to members of the water development board,
including the chairman, vice chairman, secretary-treasurer for
services rendered and to make loans and exercise its other powers
as previously specified in furtherance of its corporate purpose:
Provided,
That no loans shall be made, and no property shall be
purchased or leased from, or sold, leased or otherwise disposed of,
to any water development board member or officer of the water
development authority.
§31-15A-16. Dedication of severance tax proceeds.
(a) There shall be dedicated an annual amount from the
collections of the tax collected pursuant to article thirteen-a,
chapter eleven of this code for the construction, extension,
expansion, rehabilitation, repair and improvement of water supply
and sewage treatment systems and for the acquisition, preparation,
construction and improvement of sites for economic development in
this state as provided in this article.
(b) Notwithstanding any other provision of this code to the
contrary, beginning on the first day of July, one thousand nine
hundred ninety-five, the first sixteen million dollars of the tax
collected pursuant to article thirteen-a, chapter eleven of this
code shall be deposited to the credit of the West Virginia
infrastructure general obligation debt service fund created
pursuant to section three, article fifteen-b of this chapter:
Provided, That beginning on the first day of July, one thousand
nine hundred ninety-eight, the first twenty-four million dollars of
the tax annually collected pursuant to article thirteen-a of this
code shall be deposited to the credit of the West Virginia
infrastructure general obligation debt service fund created
pursuant to section three, article fifteen-b of this chapter.
(c) Notwithstanding any provision of subsection (b) of this
section to the contrary: (1) none of the collections from the tax
imposed pursuant to section six, article thirteen-a, chapter eleven
of this code shall be so dedicated or deposited;: Provided, however, That and (2) the portion of the tax imposed by article
thirteen-a, chapter eleven and dedicated for purposes of medicaid
and the division of forestry pursuant to section twenty-a of said
article thirteen-a shall remain dedicated for the purposes set
forth in said section twenty-a.
(c)(d) On or before the first day of May of each year,
commencing the first day of May, one thousand nine hundred ninety- five, the council, by resolution, shall certify to the treasurer
and the water development authority the principal and interest
coverage ratio and amount for the following fiscal year on any
infrastructure general obligation bonds issued pursuant to the
provisions of article fifteen-b of this chapter.
§31-15A-17. Water development authority empowered to issue
infrastructure revenue bonds and refunding bonds;
creation of infrastructure revenue debt service fund;
funding of infrastructure revenue debt service fund;
requirements and manner of such issuance.
(a) To accomplish the purpose and intent of this article, the
water development authority is hereby empowered at the written
request of the council to issue from time to time infrastructure
revenue bonds of the state in such principal amounts as the council
deems necessary to make loans and loan guarantees and other forms
of financial assistance to project sponsors for one or more
projects or infrastructure projects: Provided, That the water
development authority may not issue any such bonds, other than
refunding bonds, unless the council by resolution determines that the aggregate cost of the projects or infrastructure projects
expected to be constructed during any annual period exceeds (1) the
projected annual infrastructure revenues for the same period, and
(2) the principal and interest payments, not pledged to the
infrastructure revenue debt service fund, due the water development
authority on all outstanding loans previously made by the water
development authority pursuant to the provisions of this article.
(b) The proceeds of infrastructure revenue bonds shall be used
solely for the purpose of making loans and loan guarantees and
other forms of financial assistance to sponsors of one or more
projects or infrastructure projects, and shall be deposited in one
or more special accounts with the trustee under the trust agreement
securing such bonds and disbursed from time to time for projects or
infrastructure projects as determined by the council.
(c) The water development authority may not authorize the
disbursement of any proceeds of infrastructure revenue bonds unless
it has received documentation from the council pursuant to the
provisions of section ten of this article.
(d) There is hereby created in the water development
authority a special fund which shall be designated and known as the
"West Virginia Infrastructure Revenue Debt Service Fund," into
which shall be transferred solely from the loan repayments
deposited in the infrastructure fund the amounts certified by the
director of the water development authority as necessary to pay the
principal, premium, if any, and interest on infrastructure revenue
bonds and any reserve requirements, subject to the terms of any
agreement with the holders of the infrastructure revenue bonds. All amounts deposited in the West Virginia infrastructure revenue
debt service fund shall be pledged to the repayment of the
principal, interest and redemption premium, if any, on any
infrastructure revenue bonds authorized by this article: Provided,
That amounts on deposit in the fund may be used to establish or
maintain reserves created for the purposes of securing such
infrastructure revenue bonds. The pledge shall be valid and
binding from the time the pledge is made, and the West Virginia
infrastructure revenue debt service fund so pledged shall
immediately be subject to the lien of the 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 water
development authority irrespective of whether the parties have
notice thereof.
(e) Except as may otherwise be expressly provided in this
article or by resolution of the water development authority, every
issue of infrastructure revenue bonds shall be special obligations
of the water development authority payable solely from amounts in
the West Virginia infrastructure revenue debt service fund, and the
reserves created for this purpose by the water development
authority, without preference or priority among the bonds
regardless of when issued, subject only to any agreements with the
holders of any bonds to the contrary. All such bonds are hereby
declared to be negotiable instruments.
(f) Infrastructure revenue bonds shall be authorized by
resolution of the water development authority. These bonds shall bear such dates and shall mature at such times, in case of any note
or renewal thereof not exceeding five years from the date of issue
of the original note, and in the case of any bond not exceeding
fifty years from the date of issue, as the resolution may provide.
Infrastructure revenue bonds shall bear interest at a rate or
rates, including variable rates, shall be taxable or tax-exempt,
shall be in the denominations, shall be in registered form, shall
carry the registration privileges, shall be payable in the medium
and place of payment, and shall be subject to the terms of
redemption as the water development authority may authorize.
Infrastructure revenue bonds may be sold by the water development
authority at public or private sale at the price the water
development authority determines in consultation with the council.
Infrastructure revenue bonds shall be executed by the chairman and
the vice chairman of the water development authority, either or
both of whom may use a facsimile signature. The official seal of
the water development authority or a facsimile thereof shall be
affixed thereto or printed thereon and attested by manual or
facsimile signature by the secretary-treasurer of the water
development authority. If any officer whose signature, or a
facsimile of whose signature appears on any infrastructure revenue
bond ceases to be such officer before delivery of such bond, such
signature or facsimile is nevertheless sufficient for all purposes
to the same extent as if he or she had remained in office until
such delivery, and if the seal of the water development authority
has been changed after a facsimile has been imprinted on such bond,
the facsimile will continue to be sufficient for all purposes.
(g) Any resolution authorizing any infrastructure revenue
bonds may contain provisions, subject to any agreement with
bondholders or noteholders which may then exist, which agreements
shall be part of the contract with the holder
thereof, with respect
to the pledge of or other use and disposition of infrastructure
revenue debt service fund; the setting aside of reserve funds; the
disposition of any assets of the water development authority;
limitations on the purpose to which the proceeds of sale of bonds
may be applied; the authorization of notes issued in anticipation
of the issuance of bonds; an agreement of the water development
authority to do all things necessary for the authorization,
issuance and sale of such bonds in such amounts as may be necessary
for the timely retirement of such notes; limitations on the
issuance of additional bonds; the terms upon which additional bonds
may be issued and secured; the refunding of outstanding bonds and
the renewal of outstanding notes; the procedures, if any, by which
the terms of any contract with bondholders or noteholders may be
amended or abrogated; the amount of bonds the holders of which must
consent thereto and the manner in which such consent may be given;
and any other matter which in any way affects the security for or
protection of the bonds.
(h) In the event that the sum of all reserves pledged to the
payment of the bonds is less than the minimum reserve requirements
established in any resolution or resolutions authorizing the
issuance of the bonds, the chairman or the director of the water
development authority 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 water development authority to be pledged for payment of
such bonds : Provided, That the Legislature shall not be required
to make any appropriations so requested, and the amount of such
deficiencies shall not constitute a debt or liability of the state.
(i) Neither the officers or board members of the water
development authority, nor any person executing the infrastructure
revenue bonds, shall be liable personally on the bonds or be
subject to any personal liability or accountability by reason of
the issuance thereof.
§31-15A-18. Trustee for holders of infrastructure revenue bonds;
contents of trust agreement.
(a) Any infrastructure revenue bonds issued by the water
development authority under this article shall be secured by a
trust agreement between the water development authority and a
corporate trustee, which trustee may be any trust company or
banking institution having the powers of a trust company within or
without this state.
(b) Any trust agreement may pledge or assign the
infrastructure revenue debt service fund. Any trust agreement or
any resolution providing for the issuance of such bonds may contain
such provisions for protecting and enforcing the rights and
remedies of the bondholders or noteholders as are reasonable and
proper and not in violation of law, including the provisions
contained in section seventeen of this article, and covenants setting forth the duties of the water development authority in
respect to the payment of the principal of and interest, charges
and fees on loans made to, or bond purchases from, governmental
agencies from the proceeds of the bonds, and the custody,
safeguarding and application of all moneys. Any banking
institution or trust company incorporated under the laws of this
state which may act as depository of the proceeds of bonds or of
the infrastructure debt service fund shall furnish such
indemnifying bonds or pledge securities as are required by the
water development authority. The trust agreement may set forth the
rights and remedies of the bondholders and noteholders and of the
trustee and may restrict individual rights of action by bondholders
and noteholders as customarily provided in trust agreements or
trust indentures securing similar bonds and notes. The trust
agreement may contain such other provisions as the water
development authority deems reasonable and proper for the security
of the bondholders or noteholders. All expenses incurred in
carrying out the provisions of any such trust agreement may be
treated as part of the cost of the construction, renovation,
repair, improvement or acquisition of a project or infrastructure
project.
§31-15A-19. Legal remedies of infrastructure revenue bondholders
or noteholders and trustees.
Any holder of infrastructure revenue bonds issued pursuant to
this article and the trustee under any trust agreement, except to
the extent the rights given by this article may be restricted by
the applicable resolution or trust agreement, may by civil action, mandamus or other proceedings protect and enforce any rights
granted under the laws of this state or granted under this article,
by the trust agreement or by the resolution in the issuance of the
bonds, and may enforce and compel the performance of all duties
required by this article, pursuant to the trust agreement or
resolution, to be performed by the water development authority or
any officer thereof.
§31-15A-20. 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,
and insurance companies, including domestic for life and domestic
not for life insurance companies.
§31-15A-21. Purchase and cancellation of infrastructure revenue
bonds.
(a) The water development authority, subject to such
agreements with noteholders or bondholders as may then exist, shall
have the power, from any funds available therefor, to purchase or
redeem infrastructure revenue bonds of the water development
authority.
(b) If the infrastructure revenue bonds are then redeemable,
the price of the purchase shall not exceed the redemption price
then applicable, plus accrued interest to the next interest payment
date thereon. If the infrastructure revenue bonds are not then
redeemable, the price of the purchase shall not exceed the
redemption price applicable on the first date after the purchase upon which the bonds become subject to redemption, plus accrued
interest to such date. Upon purchase or redemption, the bonds
shall be canceled.
§31-15A-22. Refunding revenue bonds.
Any infrastructure revenue bonds issued pursuant to the
provisions of this article and at any time outstanding may at any
time and from time to time be refunded by the water development
authority by the issuance of its refunding revenue bonds in an
amount it deems necessary to refund the principal of the bonds to
be refunded, together with any unpaid interest thereon, to provide
additional funds for the water development authority to accomplish
the purpose of this article, and to pay any premiums and
commissions necessary to be paid in connection therewith. Any
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 revenue bonds
issued pursuant to this article shall be payable from the West
Virginia infrastructure revenue debt service fund, and shall be
subject to the provisions contained in section seventeen of this
article, and shall be secured in accordance with the provisions of
sections seventeen and eighteen of this article.
§31-15A-23. Infrastructure revenue bonds not debt of state, county, municipality or any political subdivision.
Infrastructure revenue bonds issued pursuant the provisions 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. The
holders or owners thereof shall have no right to have taxes levied
by the Legislature or the taxing authority of any county,
municipality or any other political subdivision of this state for
the payment of the principal thereof or interest thereon. The bonds
shall be payable solely from the revenues and funds pledged for
their payment as authorized by this article. All such bonds shall
contain on the face thereof a statement to the effect that the
bonds, as to both principal and interest, are not debts of the
state or any county, municipality or political subdivision thereof,
but are payable solely from revenues and funds pledged for their
payment.
§31-15A-24. Infrastructure revenue bonds exempt from taxation.
The exercise of the powers granted to the water development
authority by this article will be in all respects for the benefit
of the people of the state, for the improvement of their health,
safety, convenience and welfare and for the enhancement of their
residential, agricultural, recreational, economic, commercial and
industrial opportunities and is for a public purpose. As the
construction, acquisition, repair or renovation of projects or
infrastructure projects will constitute the performance of
essential governmental functions, the 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 water
development authority or upon the income therefrom. The
infrastructure revenue 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
estate taxes.
ARTICLE 15B. INFRASTRUCTURE BONDS.
§31-15B-2. Infrastructure general obligation bonds; amount; when
may issue.
Bonds of the state of West Virginia, under authority of the
infrastructure improvement amendment of 1994, of the par value not
to exceed in the aggregate three hundred million dollars, are
hereby authorized to be issued and sold solely for the
construction, extension, expansion, rehabilitation, repair and
improvement of water supply and sewage treatment systems and for
the acquisition, preparation, construction and improvement of sites
for economic development as provided for by the constitution and
the provisions of this article.
These bonds may be issued by the governor upon resolution by
the infrastructure council and certification to the governor. The
bonds shall bear such date and mature at such time, bear interest
at such rate not to exceed eight percent per annum, be in such
amounts, be in such denominations, be in such registered form,
carry such registration privileges, be due and payable at such time
and place and in such amounts, and subject to such terms of redemption as such resolution may provide: Provided, That in no
event may the amount of bonds outstanding exceed an amount for
which sixteen twenty-four million dollars would not be sufficient
to provide annual service on the total amount of debt outstanding.
Both the principal and interest of the bonds shall be payable
in the lawful money of the United States of America and the bonds
and the interest thereon shall be exempt from taxation by the state
of West Virginia, or by any county, district or municipality
thereof, which fact shall appear on the face of the bonds as part
of the contract with the holder of the bond.
The bonds shall be executed on behalf of the state of West
Virginia, by the manual or facsimile signature of the treasurer
thereof, under the great seal of the state or a facsimile thereof,
and countersigned by the manual or facsimile signature of the
auditor of the state.
Note: The purpose of the bill is to facilitate the
procurement and distribution of funds for infrastructure
development in the state.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.