H. B. 4474
(By Delegates Mezzatesta, Perry, Hubbard, Fahey, Louisos,
Williams and Paxton)
(Originating in the Committee on Education)
[February 13, 2002]
A BILL to amend and reenact sections three and fifteen, article
nine-d, chapter eighteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating
to the school building authority; authorizing authority to
require flood insurance for any facility within the one
hundred year flood plain at which authority funds are
expended; authorizing authority to require projects to
provide certain work-based learning opportunities for
students and requiring said opportunities for projects
involving new construction and renovation of vocational-
technical and adult education facilities; authorizing
authority to accept any gift, grant, contribution, bequest or endowment of equipment for use in any or all projects;
requiring the authority to reserve no more than twenty-five
percent of funds available for priority use for multi-use
vocational-technical educational facilities which may
include post-secondary programs; authorizing use of said
reserved funds for equipment and equipment updates; and
including the joint administrative board of a vocational-
technical education facility which includes post-secondary
programs as a body which may propose projects.
Be it enacted by the Legislature of West Virginia:
That sections three and fifteen, article nine-d, chapter
eighteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-3. Powers of authority.
The school building authority has the power:
(1) To sue and be sued, plead and be impleaded;
(2) To have a seal and alter the same at pleasure;
(3) To contract to acquire and to acquire, in the name of
the authority by purchase, lease-purchase not to exceed a term of
twenty-five years, or otherwise, real property or rights or easements necessary or convenient for its corporate purposes and
to exercise the power of eminent domain to accomplish those
purposes;
(4) To acquire, hold and dispose of real and personal
property for its corporate purposes;
(5) To make bylaws for the management and rule of its
affairs;
(6) To appoint, contract with and employ attorneys, bond
counsel, accountants, construction and financial experts,
underwriters, financial advisers, trustees, managers, officers
and such other employees and agents as may be necessary in the
judgment of the authority and to fix their compensation:
Provided, That contracts entered into by the school building
authority in connection with the issuance of bonds under this
article to provide professional and technical services,
including, without limitation, accounting, actuarial,
underwriting, consulting, trustee, bond counsel, legal services
and contracts relating to the purchase or sale of bonds are
subject to the provisions of article three, chapter five-a of
this code: Provided, however, That notwithstanding any other
provisions of this code, any authority of the attorney general of this state relating to the review of contracts and other
documents to effectuate the issuance of bonds under this article
shall be exclusively limited to the form of the contract and
document: Provided further, That the attorney general of this
state shall complete all reviews of contracts and documents
relating to the issuance of bonds under this article within ten
calendar days of receipt of the contract and document for review;
(7) To make contracts and to execute all instruments
necessary or convenient to effectuate the intent of and to
exercise the powers granted to it by this article;
(8) To renegotiate all contracts entered into by it
whenever, due to a change in situation, it appears to the
authority that its interests will be best served;
(9) To acquire by purchase, eminent domain or otherwise all
real property or interests in the property necessary or
convenient to accomplish the purposes of this article;
(10) To require proper maintenance and insurance of any
project authorized under this section, including flood insurance
for any facility within the one hundred year flood plain at which
authority funds are expended;
(11) To charge rent for the use of all or any part of a project or buildings at any time financed, constructed, acquired
or improved, in whole or in part, with the revenues of the
authority;
(12) To assist any county board of education that chooses to
acquire land, buildings and capital improvements to existing
school buildings and property for use as public school
facilities, by lease from a private or public lessor for a term
not to exceed twenty-five years with an option to purchase
pursuant to an investment contract with the lessor on such terms
and conditions as may be determined to be in the best interests
of the authority, the state board of education and the county
board of education, consistent with the purposes of this article,
by transferring funds to the state board of education as provided
in subsection (d), section fifteen of this article for the use of
the county board of education;
(13) To accept and expend any gift, grant, contribution,
bequest or endowment of money to, or for the benefit of, the
authority, from the state of West Virginia or any other source
for any or all of the purposes specified in this article or for
any one or more of such purposes as may be specified in
connection with the gift, grant, contribution, bequest or endowment;
(14) To enter on any lands and premises for the purpose of
making surveys, soundings and examinations;
(15) To contract for architectural, engineering or other
professional services considered necessary or economical by the
authority to provide consultative or other services to the
authority or to any regional educational service agency or county
board requesting professional services offered by the authority,
to evaluate any facilities plan or any project encompassed in the
plan, to inspect existing facilities or any project that has
received or may receive funding from the authority, or to perform
any other service considered by the authority to be necessary or
economical. Assistance to the region or district may include the
development of pre-approved systems, plans, designs, models or
documents; advice or oversight on any plan or project; or any
other service that may be efficiently provided to regional
educational service agencies or county boards by the authority;
(16) To provide funds on an emergency basis to repair or
replace property damaged by fire, flood, wind, storm, earthquake
or other natural occurrence, the funds to be made available in
accordance with guidelines of the school building authority;
(17) To transfer moneys to custodial accounts maintained by
the school building authority with a state financial institution
from the school construction fund and the school improvement fund
created in the state treasury pursuant to the provisions of
section six of this article, as necessary to the performance of
any contracts executed by the school building authority in
accordance with the provisions of this article;
(18) To enter into agreements with county boards and
persons, firms or corporations to facilitate the development of
county board projects and county board facilities plans. The
county board participating in an agreement shall pay at least
twenty-five percent of the cost of the agreement. Nothing in
this section shall be construed to supersede, limit or impair the
authority of county boards to develop and prepare their projects
or plans; and
(19 To
require any project or part thereof to provide
opportunities for students to participate in supervised work-
based learning experiences, including registered youth
apprenticeships, approved by the county board as a part of the
student's program of study. The work-based learning experience
may be paid or unpaid and must include a formal training plan which is developed by the instructor, the employer and mentor,
and the student and which sets forth at a minimum the specific
skills to be learned, the required documentation of work-based
learning experiences, and the conditions of the placement,
including duration and safety provisions. Projects involving the
new construction and renovation of vocational-technical and adult
education facilities shall provide opportunities for students to
participate in supervised work-based learning experiences
, to the
extent practical, which meet the requirements of this
subdivision;
(20) To accept any gift, grant, contribution, bequest or
endowment of or for equipment to be used in, or for the benefit
of, any school incidental to a facility project, from the state
of West Virginia or any other source for any or all projects
under this article or for any one or more of such purposes as may
be specified in connection with the gift, grant, contribution,
bequest or endowment;
and
(19) (21) To do all things necessary or convenient to carry
out the powers given in this article.
§18-9D-15. Legislative intent; distribution of money.
(a) It is the intent of the Legislature to empower the school building authority to facilitate and provide state funds
and to administer all federal funds provided for the construction
and major improvement of school facilities so as to meet the
educational needs of the people of this state in an efficient and
economical manner. The authority shall make funding
determinations in accordance with the provisions of this article
and shall assess existing school facilities and each facility's
school major improvement plan in relation to the needs of the
individual student, the general school population, the
communities served by the facilities and facility needs
statewide.
(b) An amount that is no more than three percent of the sum
of moneys that are determined by the authority to be available
for distribution during the then current fiscal year from: (1)
Moneys paid into the school building capital improvements fund
pursuant to section ten, article nine-a of this chapter; (2) the
issuance of revenue bonds for which moneys in the school building
debt service fund are pledged as security; (3) moneys paid into
the school construction fund pursuant to section six of this
article; and (4) any other moneys received by the authority,
except moneys paid into the school major improvement fund pursuant to section six of this article, may be allocated and may
be expended by the authority for projects that service the
educational community statewide or, upon application by the state
board, for educational programs that are under the jurisdiction
of the state board. In addition, upon application by the state
board or the administrative council of an area vocational
educational center established pursuant to article two-b of this
chapter, the authority may allocate and expend under this section
subsection moneys for school major improvement projects proposed
by the state board or an administrative council for school
facilities under the direct supervision of the state board or an
administrative council, respectively: Provided, That the
authority may not expend any moneys for a school major
improvement project proposed by the state board or the
administrative council of an area vocational educational center
unless the state board or an administrative council has submitted
a ten-year school major improvement plan, to be updated annually,
pursuant to section sixteen of this article: Provided, however,
That the authority shall, before allocating any moneys to the
state board or the administrative council of an area vocational
educational center for a school improvement project, consider all other funding sources available for the project.
(c) An amount that is no more than two percent of the moneys
that are determined by the authority to be available for
distribution during the current fiscal year from: (1) Moneys
paid into the school building capital improvements fund pursuant
to section ten, article nine-a of this chapter; (2) the issuance
of revenue bonds for which moneys in the school building debt
service fund are pledged as security; (3) moneys paid into the
school construction fund pursuant to section six of this article;
and (4) any other moneys received by the authority, except moneys
deposited into the school major improvement fund, shall be set
aside by the authority as an emergency fund to be distributed in
accordance with the guidelines adopted by the authority.
(d) An amount that is no more than twenty-five percent of
the moneys that are determined by the authority to be available
for distribution during the current fiscal year from: (1) Moneys
paid into the school building capital improvements fund pursuant
to section ten, article nine-a of this chapter; (2) the issuance
of revenue bonds for which moneys in the school building debt
service fund are pledged as security; (3) moneys paid into the
school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys
deposited into the school major improvement fund, shall be
reserved by the authority
for multi-use vocational-technical
education facilities that may include post-secondary programs as
a first priority use
. The authority may allocate and expend
under this subsection moneys for any purposes authorized in this
article on multi-use vocational-technical education facilities
and for equipment and equipment updates at the facilities. If
the projects approved under this subsection do not require the
full amount of moneys reserved, moneys above the amount required
may be allocated and expended in accordance with other provisions
of this article. A county board, the state board, an
administrative council or the joint administrative board of a
vocational-technical education facility which includes post-
secondary programs may propose projects for facilities or
equipment, or both, which are under the direct supervision of the
respective body: Provided, That the authority may not expend any
moneys for a school major improvement project proposed under this
subsection unless the responsible body has submitted a ten-year
school major improvement plan for the project, to be updated
annually, pursuant to section sixteen of this article: Provided, however, That the authority shall, before allocating any moneys
for a project under this subsection, consider all other funding
sources available for the project.
(d) (e) The remaining moneys determined by the authority to
be available for distribution during the then current fiscal year
from: (1) Moneys paid into the school building capital
improvements fund pursuant to section ten, article nine-a of this
chapter; (2) the issuance of revenue bonds for which moneys in
the school building debt service fund are pledged as security;
(3) moneys paid into the school construction fund pursuant to
section six of this article; and (4) any other moneys received by
the authority, except moneys deposited into the school major
improvement fund, shall be allocated and expended on the basis of
need and efficient use of resources, the basis to be determined
by the authority in accordance with the provisions of section
sixteen of this article.
(e) (f)
If a county board of education proposes to finance
a project that is approved pursuant to section sixteen of this
article through a lease with an option to purchase leased
premises upon the expiration of the total lease period pursuant
to an investment contract, the authority may allocate no moneys to the county board in connection with the project: Provided,
That the authority may transfer moneys to the state board of
education which, with the authority, shall lend the amount
transferred to the county board to be used only for a one-time
payment due at the beginning of the lease term, made for the
purpose of reducing annual lease payments under the investment
contract, subject to the following conditions:
(1) The loan shall be secured in the manner required by the
authority, in consultation with the state board, and shall be
repaid in a period and bear interest at a rate as determined by
the state board and the authority and shall have such terms and
conditions as are required by the authority, all of which shall
be set forth in a loan agreement among the authority, the state
board and the county board;
(2) The loan agreement shall provide for the state board and
the authority to defer the payment of principal and interest upon
any loan made to the county board during the term of the
investment contract, and annual renewals of the investment
contract, among the state board, the authority, the county board
and a lessor: Provided, That in the event a county board which
has received a loan from the authority for a one-time payment at the beginning of the lease term does not renew the subject lease
annually until performance of the investment contract in its
entirety is completed, the county board is in default and the
principal of the loan, together with all unpaid interest accrued
to the date of the default, shall, at the option of the
authority, in consultation with the state board, become due and
payable immediately or subject to renegotiation among the state
board, the authority and the county board: Provided, however,
That if a county board renews the lease annually through the
performance of the investment contract in its entirety, the
county board shall exercise its option to purchase the leased
premises: Provided further, That the failure of the county board
to make a scheduled payment pursuant to the investment contract
constitutes an event of default under the loan agreement: And
provided further, That upon a default by a county board, the
principal of the loan, together with all unpaid interest accrued
to the date of the default, shall, at the option of the
authority, in consultation with the state board, become due and
payable immediately or subject to renegotiation among the state
board, the authority and the county board: And provided further,
That if the loan becomes due and payable immediately, the authority, in consultation with the state board, shall use all
means available under the loan agreement and law to collect the
outstanding principal balance of the loan, together with all
unpaid interest accrued to the date of payment of the outstanding
principal balance; and
(3) The loan agreement shall provide for the state board and
the authority to forgive all principal and interest of the loan
upon the county board purchasing the leased premises pursuant to
the investment contract and performance of the investment
contract in its entirety.
(f) (g)
To encourage county boards to proceed promptly with
facilities planning and to prepare for the expenditure of any
state moneys derived from the sources described in this
subsection, any county board failing to expend money within three
years of the allocation to the county board shall forfeit the
allocation and thereafter is ineligible for further allocations
pursuant to this subsection until the county board is ready to
expend funds in accordance with an approved facilities plan:
Provided, That the authority may authorize an extension beyond
the three-year forfeiture period not to exceed an additional two
years. Any amount forfeited shall be added to the total funds available in the school construction fund of the authority for
future allocation and distribution.
(g) (h)
The remaining moneys that are determined by the
authority to be available for distribution during the then
current fiscal year from moneys paid into the school major
improvement fund pursuant to section six of this article shall be
allocated and distributed on the basis of need and efficient use
of resources, the basis to be determined by the authority in
accordance with the provisions of section sixteen of this
article: Provided, That the moneys may not be distributed to any
county board that does not have an approved school major
improvement plan or to any county board that is not prepared to
commence expenditures of the funds during the fiscal year in
which the moneys are distributed: Provided, however, That any
moneys allocated to a county board and not distributed to that
county board shall be deposited in an account to the credit of
that county board, the principal amount to remain to the credit
of and available to the county board for a period of two years.
Any moneys which are unexpended after a two-year period shall be
redistributed on the basis of need from the school major
improvement fund in that fiscal year.
(h) (i)
No local matching funds may be required under the
provisions of this section. However, the responsibilities of the
county boards of education to maintain school facilities are not
negated by the provisions of this article. To be eligible to
receive an allocation of school major improvement funds from the
authority, a county board must have expended in the previous
fiscal year an amount of county moneys equal to or exceeding the
lowest average amount of money included in the county board's
maintenance budget over any three of the previous five years and
must have budgeted an amount equal to or greater than the average
in the current fiscal year: Provided, That the state board of
education shall promulgate rules relating to county boards'
maintenance budgets, including items which shall be included in
the budgets.
(i) (j)
Any county board may use moneys provided by the
authority under this article in conjunction with local funds
derived from bonding, special levy or other sources.
Distribution to a county board, or to the state board or the
administrative council of an area vocational educational center
pursuant to subsection (b) of this section, may be in a lump sum
or in accordance with a schedule of payments adopted by the authority pursuant to guidelines adopted by the authority.
(j) (k)
Funds in the school construction fund shall first be
transferred and expended as follows:
Any funds deposited in the school construction fund shall be
expended first in accordance with an appropriation by the
Legislature. To the extent that funds are available in the
school construction fund in excess of that amount appropriated in
any fiscal year, the excess funds may be expended in accordance
with the provisions of this article. Any projects which the
authority identified and announced for funding on or before the
first day of August, one thousand nine hundred ninety-five, or
identified and announced for funding on or before the
thirty-first day of December, one thousand nine hundred
ninety-five, shall be funded by the authority in an amount which
is not less than the amount specified when the project was
identified and announced.
(k) (l)
It is the intent of the Legislature to encourage
county boards to explore and consider arrangements with other
counties that may facilitate the highest and best use of all
available funds, which may result in improved transportation
arrangements for students, or which otherwise may create efficiencies for county boards and the students. In order to
address the intent of the Legislature contained in this
subsection, the authority shall grant preference to those
projects which involve multicounty arrangements as the authority
shall determine reasonable and proper.
(l) (m)
County boards shall submit all designs for
construction of new school buildings to the school building
authority for review and approval prior to preparation of final
bid documents: Provided, That a vendor who has been debarred
pursuant to the provisions of sections thirty-three-a through
thirty-three-f, inclusive, article three, chapter five-a of this
code, may not bid on or be awarded a contract under this section.
(m) (n)
The authority may elect to disburse funds for
approved construction projects over a period of more than one
year subject to the following:
(1) The authority may not approve the funding of a project
for more than three years; and
(2) The authority may not approve the use of more than fifty
percent of the revenue for projects to be funded over more than
one year.