H. B. 4711
(By Mr. Speaker, Mr. Kiss, and
Delegates Staton and Varner)
[Introduced February 27, 2004; referred to the
Committee on Government Organization then Finance.]
A BILL to repeal §5B-2-8, §5B-2-9, §5B-2-l0, §5B-2-11 and §5B-2-12a
of the code of West Virginia, 1931, as amended; to amend and
reenact §5B-2-12 of said code
; and to amend said code by
adding thereto a new article, designated §5B-7-1, §5B-7-2,
§5B-7-3, §5B-7-4, §5B-7-5, §5B-7-6, §5B-7-7, §5B-7-8, §5B-7-9,
§5B-7-10, §5B-7-11, §5B-7-12, §5B-7-13, §5B-7-14, §5B-7-15,
§5B-7-16, §5B-7-17, §5B-7-18, §5B-7-19, §5B-7-20, §5B-7-21,
§5B-7-22 and §5B-7-23, all relating generally to creating a
West Virginia tourism authority; providing for duties and
powers; abolishing the tourism commission and the office of
the tourism commissioner; transferring assets, liabilities and
personnel to the new authority; providing for authority to
issue tourism development bonds; and providing for uses and
expenditures of moneys coming into the tourism promotion fund.
Be it enacted by the Legislature of West Virginia:
That §5B-2-8, §5B-2-9, §5B-2-10, §5B-2-11 and §5B-2-12a
of the code of West Virginia, 1931, as amended, be repealed; that
§5B-2-12
of said code be amended and reenacted; and that said code
be amended by adding thereto a new article, designated §5B-7-1,
§5B-7-2, §5B-7-3, §5B-7-4, §5B-7-5, §5B-7-6, §5B-7-7, §5B-7-8,
§5B-7-9, §5B-7-10, §5B-7-11, §5B-7-12, §5B-7-13, §5B-7-14,
§5B-7-15, §5B-7-16, §5B-7-17, §5B-7-18, §5B-7-19, §5B-7-20,
§5B-7-21, §5B-7-22 and §5B-7-23, all to read as follows:
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-12. Tourism promotion fund created; use of funds.
There is hereby continued in the state treasury the special
revenue fund known as the "tourism promotion fund" created under
prior enactment of section nine, article one of this chapter. All
moneys which come into this fund shall be used in accordance with
the provisions of article seven of this chapter.
(a) A minimum of five percent of the moneys deposited in the
fund each year shall be used solely for direct advertising for West
Virginia travel and tourism: Provided, That no less than twenty
percent of these funds be expended with the approval of the
director of the division of natural resources to effectively
promote and market the state's parks, state forests, state
recreation areas and wildlife recreational resources. Direct advertising means advertising which is limited to television,
radio, mailings, newspaper, magazines and outdoor billboards, or
any combination thereof;
(b) The balance of the moneys deposited in the fund shall be
used for direct advertising within the state's travel regions as
defined by the commission. The funds shall be made available to
these districts beginning the first day of July, one thousand nine
hundred ninety-five, according to legislative rules promulgated by
the tourism commission: Provided, That emergency rules for the
distribution of funds for the fiscal year ending the thirtieth day
of June, one thousand nine hundred ninety-six, are specifically
authorized; and
(c) All advertising expenditures over twenty-five thousand
dollars from the tourism promotion fund require prior approval by
recorded vote of the commission.
ARTICLE 7. WEST VIRGINIA TOURISM AUTHORITY ACT.
§5B-7-1. Short title.
This article shall be known and may be cited as the "West
Virginia Tourism Authority Act."
§5B-7-2. Declaration of legislative findings and public purpose.
The Legislature finds and declares that:
(a) There are numerous existing tourist attractions as well as
the potential for development of many new tourist attractions in
all of the geographic regions of this state. These tourist
attractions include existing and potential facilities and locations
for cultural, historical, educational, recreational and
entertainment activities and present and future tourism facilities
and locations have the potential of attracting millions of visitors
both from within and from outside this state; and
(b) The aggressive promotion of tourism and the development of
new tourism facilities, activities and locations in this state are
necessary to increase the prosperity of the people of this state;
and to obtain that result, it is necessary to create a single
public authority with all of the powers and duties necessary for
implementing a coordinated and effective tourism promotion and
development program; and
(c) The most effective way to realize results from a
comprehensive and coordinated tourism promotion and development
program is to place responsibility for these activities in a single
public authority having the specialized professional staff and
resources needed to promote, advertise, and market the state?s many
tourist attractions; to coordinate other private and public efforts to promote, advertise and market tourist facilities; and to provide
the tools needed to finance and develop new tourism facilities in
this state; and
(d) The creation of the tourism authority for this purpose as
provided in this article is in the public interest, serves an
important public purpose and will promote the health, safety,
welfare, prosperity of the people of this state.
§5B-7-3. Tourism authority created; members, appointment and
expenses, officers and by-laws.
(a) There is hereby created the West Virginia tourism
authority, a body corporate and politic, constituting a public
corporation and government instrumentality. The governing board of
the authority shall direct the exercise of all the powers given to
the authority in this article and shall be comprised of the
following fourteen members:
(1) Nine members to be appointed by the governor, with the
advice and consent of the Senate, representing participants in the
state?s tourism industry. At least seven of the members shall be
directly employed in this state?s private sector tourism industry
and shall have knowledge and experience in the development,
promotion or operation of tourism facilities. Of the nine members so appointed, one shall represent a convention and visitors?
bureau, and one shall be a member of a convention and visitors
bureau. A member who qualifies at the time of appointment may
serve out his or her term even though there is a change in the
member?s qualification status during the term. Of the nine members
so appointed, no more than three shall be from any one
congressional district within the state and the appointments shall
provide the broadest feasible geographic distribution of members;
(2) One member of the council for community and economic
development created pursuant to the provisions of section two,
article five-b of this chapter, as designated by the governor;
(3) One member to be appointed by the governor to represent
county or municipal public sector participants in the tourism
industry within the state;
(4) The secretary of transportation or his or her designee, ex
officio;
(5) The director of the division of natural resources or his
or her designee, ex officio; and
(6) The secretary of tax and revenue or his or her designee,
ex officio.
(b) The members appointed by the governor shall serve staggered terms of four years duration. The existing members of
the tourism commission, pursuant to the prior provisions of section
eight, article five-b of this chapter, as of the effective date of
this article, shall continue to serve until their terms expire or
their seats otherwise become vacant. Any member whose term has
expired shall serve until his or her successor has been appointed.
Any person appointed to fill a vacancy shall serve only for the
unexpired term. A member is eligible for reappointment. In cases
of vacancy in the office of a member, that vacancy shall be filled
by the governor in the same manner as the original appointment.
(c) Members of the authority shall not be entitled to
compensation for services performed as members, but shall be
entitled to reimbursement for all reasonable and necessary expenses
actually incurred in the performance of their duties, including a
per diem expense payment for up to five days per calendar month
spent in the performance of authority business which shall be the
same per diem amount as is authorized for members of the
Legislature from time to time.
(d) A majority of these members shall constitute a quorum for
the purpose of conducting business. The governor shall appoint a
chairperson of the commission for a term to run concurrent with the
term of the office of the member appointed to be the chairperson.
The chairperson is eligible for successive terms in that position.
(e) The board of the authority shall manage the property and
business of the authority and may prescribe, amend, adopt and
repeal bylaws and rules governing the manner in which the business
of the authority is conducted. The secretary of the board shall
keep a record of the proceedings of the board and perform such
other duties as may be determined appropriate by the board. The
treasurer shall be custodian of all funds of the authority and
shall be bonded in such amount as other members of the board may
require.
(f) The members of the authority and of any committee created
by the authority to evaluate applications for advertising or other
grants or loans from the authority shall recuse themselves, and not
participate in the discussion of any project in which the person
has a direct financial interest.
§5B-7-4. Appointment and duties of executive director.
The governor shall appoint an executive director of the
authority, who shall serve as president and chief executive officer
of the authority. The executive director shall report to, but not
be a member of, the board. The governor shall set the salary and
other compensation of the executive director, and shall approve any
changes in the executive director?s salary or compensation. The
executive director shall administer, manage and direct the affairs
and activities of the authority in accordance with the policies and
under the control and direction of the board. He or she shall attend meetings of the board, shall keep a record of the
proceedings of the board and shall maintain and be custodian of all
books, documents and papers of the authority, the minute book of
the authority and its official seal. He or she shall also perform
other duties as instructed by the board in carrying out the
purposes of this article. The executive director shall employ or
retain such agents or employees as may be necessary to fulfill the
duties of the authority, subject to the board?s approval.
Employees of the authority, including the executive director, are
eligible for membership in the West Virginia retirement system and
participation in all of the health and related insurance and other
benefits available to state employees as provided by law.
§5B-7-5. West Virginia tourism commission and office of tourism
commissioner abolished; West Virginia tourism
authority as successor.
The authority shall be the corporate successor to the West
Virginia tourism commission and the office of tourism commissioner
and is hereby vested with all right, title and interest of the
commission and office in and to all property, rights and chooses in
action heretofore owned by or vested in those entities, and shall
assume all debts, liabilities and other obligations, if any, of the
abolished entities. As of the effective date of this article, all
rights and interests heretofore vested in those entities shall be
vested in the authority. Any references elsewhere in this code to "tourism commission" or the office of "tourism commissioner" shall,
from and after the effective date of this section, mean the
authority.
The unexpended balance of funds appropriated for the abolished
entities as of the effective date of this article is hereby
transferred to the authority. All existing personnel of the
abolished entities are personnel of the authority upon the
effective date of this article.
§5B-7-6. Definitions.
Unless the context clearly indicates otherwise, as used in
this article:
(a) "Authority" means the West Virginia tourism authority;
(b) "Board" means the governing body of the authority;
(c) "Bonds" means bonds or other debt instruments of the
authority issued under this article, whether the interest thereon
is taxable or tax-exempt for federal income tax purposes;
(d)"Costs of establishing a tourism project" means the cost
of acquiring existing facilities, cost of machinery, cost of
equipment and fixtures, the cost of construction, including without
limitation, cost of improvements, repairs and renovations, costs of
all lands, water areas, property rights and easements, financing
charges, interest prior to and during construction, cost of
architectural, engineering, legal and financial or other consulting
services, plans, site assessments, site remediation costs, specifications and surveys, estimates of costs and any other
expenses necessary or incident to determining the feasibility or
practicability of any project, together with such other costs and
expenses as may be necessary or incidental to the financing and the
construction or acquisition of the project and the placing of the
same in operation;
(e) "County" means any county of this state;
(f)"Enterprise" means an entity which is or proposes to be
engaged in this state in any business activity for profit. The
entity may be owned, operated, controlled or under the management
of a person, partnership, corporation, trust, community-based
development organization or council, local commerce group, employee
stock ownership plan, pension or profit-sharing plan, a group of
participating employees who desire to own an entity which does not
presently exist, or any similar entity or organization;
(g) "Federal agency" means the United States of America and
any department, corporation, agency or instrumentality created,
designated or established by the United States of America;
(h) "Financing plan" means a plan designed to meet the
financing needs of an enterprise;
(i) "Government" means state and federal government, and any
political subdivision, agency or instrumentality thereof, corporate
or otherwise;
(j) "Loan" means an extension of financing by the authority to a local government or an enterprise, including, but not limited to,
a loan, a lease or an installment sale;
(k) "Municipality" means any city or town in this state;
(1) "Notes" means any notes, including commercial
paper, of
the authority issued under this article whether the interest
thereon
is taxable or tax-exempt for federal
income tax purposes;
(m) "Project" means a tourism facility development and all of
the assets reasonably and necessarily required therefor, all as
determined by the authority, which determination shall be
conclusive;
(n) "Revenues" means all fees, premiums, charges, moneys,
profits, payment or principal of or interest on, loans and other
investments, gifts, grants, appropriations, contributions and all
other income derived or to be derived by the authority under this
article; and
(o) "Security interest" means an interest in the loan
portfolio of the authority which interest is secured by an
underlying loan or loans and is evidenced by a note issued by the
authority.
§5B-7-7. General powers of the authority.
The authority, as a public corporation and governmental
instrumentality exercising public powers of the state, shall have
and may exercise all powers necessary or appropriate to carry out
the purposes of this article, including the power to:
(a) Have an official seal and alter its official seal at will;
(b) Maintain an office or offices at any place within this
state that it designates;
(c) Make and execute contracts and all other instruments and
agreements necessary or convenient for the performance of its
duties and the exercise of its powers and functions under this
article;
(d) Acquire real or personal property, or any interest
therein, by purchase, exchange, gift, assignment, transfer,
foreclosure, lease or otherwise, including rights or easements, and
hold, manage, operate or improve such property. Title to all
property, property rights and interests acquired by the authority
shall be taken in the name of the authority.
(e) Sue and be sued in its name;
(f) Sell, license, lease, mortgage, assign, pledge or donate
its property, both real and personal, or any right or interest
therein to another or authorize the possession, occupancy or use of
such property or any right or interest therein by another, in such
manner and upon such terms as it deems appropriate.
(g) Appoint officers, agents and employees and to contract for
and engage the services of consultants.
(h) Procure insurance, in amounts and from insurers of its
choice, or provide self-insurance, against any loss, cost, or
expense in connection with its property, assets or activities, including insurance or self-insurance against liability for its
acts or the acts of its directors employees or agents and for the
indemnification of the members of its board and its employees and
agents;
(i) Receive and accept from any source aid, grants and
contributions of money, property, labor or other things of value to
be held, used and applied to carry out the purposes of this article
subject to the conditions upon which the aid, grants or
contributions are made;
(j) Enter into agreements with any department, agency or
instrumentality of the United States, this state, or any other
state for purposes consistent with this article;
(k) Contract for the provision of legal services by private
counsel, and notwithstanding the provisions of article three,
chapter five, such counsel may, but is not limited to, represent
the authority in court, negotiate contracts and other agreements on
behalf of the authority, render advice to the authority on any
matter relating thereto, prepare contracts and other agreements,
and provide such other legal services as may be requested by the
authority; and
(l) Exercise all of the powers which a corporation may
lawfully exercise under the laws of this state.
(m) Do any act necessary or convenient to the exercise of the
powers granted or reasonably implied by this article and not otherwise inconsistent with state law.
§5B-7-8. Sources and uses of funds.
The tourism promotion fund created in section twelve, article
five-b of this chapter shall be the primary operating account for
the authority. The tourism promotion fund shall be divided into
two separate subaccounts as follows:
(a) The authority operations subaccount shall expend no less
than eight million dollars per year and no more than one third of
the funds coming into the tourism promotion fund annually for
administration of the authority and for all costs of tourism
promotion and advertising for those activities provided in section
nine of this article: Provided, That a minimum of five percent of
the moneys deposited in the tourism promotion fund and used for
advertising, promotion and marketing each year shall be used solely
for direct advertising for West Virginia travel and tourism:
Provided, however, That no less than twenty percent of these funds
be expended with the approval of the director of the division of
natural resources to effectively promote and market the state?s
parks, state forests, state recreation areas and wildlife
recreational resources.
(b) The balance of the moneys deposited in the tourism
promotion fund annually shall be allocated to the direct
advertising matching grant subaccount and shall be used for direct
advertising within the state?s travel regions as defined by the authority. The funds shall be made available to these districts,
according to legislative rules heretofore promulgated by the former
tourism commission, which rules shall continue in effect after the
effective date of this article unless those rules shall be amended
by the authority in accordance with the provisions of chapter
twenty nine-a of this code.
(c) Direct advertising means advertising which is limited to
television, radio, mailings, newspaper, magazines and outdoor
billboards, or any combination thereof. All advertising
expenditures over twenty-five thousand dollars from the tourism
promotion fund require prior approval by recorded vote of the
authority.
S5B-7-9. Specific powers and duties of the authority related to
tourism promotion.
The authority shall also have the following powers and duties
related to promotion of tourism in this state:
(a) The authority shall develop a comprehensive tourism
promotion and development strategy for West Virginia.
"Comprehensive tourism promotion and development strategy" means a
plan that outlines strategies and activities designed to continue,
diversify or expand the tourism base of the state as a whole;
create tourism jobs; develop a highly skilled tourism work force;
facilitate business access to capital for tourism; advertise and
market the resources offered by the state with respect to tourism promotion and development; facilitate cooperation among local,
regional and private tourism enterprises; improve infrastructure on
a state, regional and community level in order to facilitate
tourism development; improve the tourism business climate
generally; and leverage funding from sources other than the state,
including local, federal and private sources. In developing its
strategies, the authority shall consider the following:
(1) Improvement and expansion of existing tourism marketing
and promotion activities;
(2) Promotion of cooperation among municipalities, counties,
and the West Virginia infrastructure and jobs development council
in funding physical infrastructure to enhance the potential for
tourism development.
(b) The authority shall purchase advertising time or space in
or upon any medium generally engaged or employed for said purpose
to advertise and market the resources of the state or to inform the
public at large or any specifically targeted group or industry
about the benefits of living in, investing in, producing in, buying
from, contracting with, or in any other way related to, the state
of West Virginia or any business, industry, agency, institution or
other entity therein: Provided, That of any funds appropriated and
allocated for purposes of advertising and marketing expenses for
the promotion and development of tourism, not less than twenty
percent of the funds shall be expended with the approval of the director of the division of natural resources to advertise, promote
and market state parks, state forests, state recreation areas and
wildlife recreational resources;
(c) The authority shall promote and disseminate information
related to the attractions of the state through the operation of
the state?s telemarketing initiative, which telemarketing
initiative shall include a centralized reservation and information
system for state parks and recreational facilities;
(d) The authority shall take such additional actions as may be
necessary to carry out the duties and programs described in this
section.
(e) The authority shall submit a report annually to the
council for community and economic development about the
development of the tourism industry in the state and the necessary
funding required by the state to continue the development of the
tourism industry.
(f) The authority shall coordinate with the executive director
of the West Virginia development office who shall assist the
authority in the performance of its powers and duties and the
executive director is hereby authorized to provide assistance in
employing necessary personnel, contracting with professional or
technical experts or consultants and purchasing or contracting for
the necessary equipment or supplies.
(g) The authority shall promulgate legislative rules pursuant to the provisions of chapter twenty-nine-a of this code to carry
out its purposes and programs, to include generally the programs
available, the procedure and eligibility of applications relating
to assistance under such programs and the staff structure necessary
to support such programs, which structure shall include the
qualifications for a professional staff person qualified by reason
of exceptional training and experience in the field of advertising
to supervise the advertising and promotion functions of the
commission, and shall further include provision for the management
of West Virginia welcome centers. The authority is further
authorized to promulgate procedure rules pursuit to said chapter to
include instructions and forms for applications relating to
assistance.
(h) The authority shall cooperate with other state and local
governmental agencies in efforts to promote and develop tourist
activity in this state.
(i) The authority shall issue periodicals and carry and charge
for advertising therein.
(j) The authority shall encourage, stimulate, and support the
film industry in this state.
(k) The authority shall make grants to local governments for
tourism projects with any funds of the authority available for this
purpose.
(1) The authority shall organize, conduct, sponsor, and participate inspecial institutes, conferences, demonstrations and
studies relating to the promotion and development of tourism
resources in this state.
§5B-7-10. Specific powers and duties of the authority related to
development of tourism facilities.
In addition to the powers and duties provided above, the
authority shall also have the following powers and duties related
to development and financing of tourism facilities in this state:
(a) To establish an account for the purpose of financing
tourism facility projects;
(b) To determine, upon the proper application from an
enterprise, whether the declared public purposes of this article
will be accomplished through the development by the enterprise of
a proposed tourism project in this state;
(c) To finance tourism projects by making loans to public
agencies or enterprises upon such terms as the authority shall deem
appropriate;
(d) To issue revenue bonds or notes to fulfill the purposes of
this article, and to secure the payment of such bonds or notes;
(e) To borrow money for its purposes and issue bonds or notes
for the money and provide for the rights of the holders of the
bonds or notes or other negotiable instruments, to secure the bonds
or notes by a deed of trust on, or an assignment or pledge of, any
or all of its property and property of the tourism project, including any part of the security for loans, and the authority may
issue and sell its bonds and notes, by public or private sale, in
such principal amounts as it shall deem necessary to provide funds
for any purposes under this article, including the making of loans
for the purposes set forth in this article;
(f) To maintain such sinking funds and reserves as the board
shall determine appropriate for the purposes of meeting future
monetary obligations and needs of the authority;
(g) To take title by conveyance or foreclosure to any tourism
project where acquisition is necessary to protect any loan
previously made by the authority and to sell, by public or private
sale, transfer, lease or convey such project to any enterprise;
(h) To participate in any reorganization proceeding pending
pursuant to the United States Code (being the act of Congress
establishing a uniform system of bankruptcy throughout the United
States, as amended) or in any receivership proceeding in a state or
federal court for the reorganization or liquidation of an
enterprise. The authority may file its claim against any such
enterprise in any of the foregoing proceedings, vote upon any
questions pending therein which requires the approval of the
creditors participating in any reorganization proceeding or
receivership, exchange any evidence of such indebtedness for any
property, security or evidence of indebtedness offered as a part of
the reorganization of such enterprise or of any other entity formed to acquire the assets thereof and may compromise or reduce the
amount of any indebtedness owing to it as a part of any such
reorganization;
(i) To acquire, construct, maintain, improve, repair, replace
and operate tourism projects within this state;
(j)To issue renewal notes, or security interests, to issue
bonds to pay notes or security interests and, whenever it deems
refunding expedient, to refund any bonds or notes by the issuance
of new bonds or notes, whether the bonds or notes to be refunded
have or have not matured and whether or not the authority
originally issued the bonds or notes to be refunded;
(k) To apply the proceeds from the sale of renewal notes,
security interests or refunding bonds or notes to the purchase,
redemption or payment of the notes, security interests or bonds or
notes to be refunded;
(l) To the extent permitted under its contracts with the
holders of bonds, security interests or notes of the authority, to
consent to any modification of the rate of interest, time of
payment of any installment of principal or interest, security or
any other term of any bond, security interests, note or contract or
agreement of any kind towhich theauthorityis aparty;
(m) To sell loans, security interests or other obligations in
the loan portfolio of the authority. Such security interests shall
be evidenced by instruments issued by the authority. Proceeds from the sale of loans, security interests, or other obligations may be
used in the same manner and for the same purposes as bond and note
revenues;
(n) To exercise such other and additional powers as may be
necessary or appropriate for the exercise of the powers herein
conferred.
§5B-7-11. Loans to governmental agencies or enterprises for
tourism projects.
(a) When it has determined upon application of a governmental
agency or an enterprise that the establishment or acquisition of a
particular tourism project will accomplish the public purposes of
this article, the authority may contract to loan such agency or
enterprise up to one hundred percent of the estimated cost of such
project from any or all of the following sources:
(1) The proceeds of bonds or notes issued by the authority
pursuant to this article; or
(2) Moneys in the revolving loan subaccount available to make
loans.
(b) Loans made under subsection (a) of this section shall be
subject to the following conditions:
(1) If the authority is providing less than one hundred
percent financing for the project, the authority shall determine
that other sources of funds will be available to complete the
project;
(2 The loan shall contain such terms and conditions as the
authority deems appropriate, which terms and conditions shall be
set forth in a resolution adopted by the board in accordance with
the provisions of section ten of this article;
(3) The authority may, in its discretion, include within the
terms of a loan minimum project operating periods, liquidated
damage provisions for cessation of operations prior to the end of
the loan period, loan acceleration provisions, project equipment
purchase options in the event of early closure and other provisions
to protect the jobs intended to be created by the project;
(4) The governmental agency or enterprise shall pay such loan
fees as may be prescribed by the authority from time to time
pursuant to the provisions of this article.
§5B-7-12. Bonds and notes issued pursuant to this article.
(a) The authority may issue its bonds or notes to fulfill the
purposes set forth in this article.
(b) The authority may issue renewal notes to pay notes and, if
it considers refunding expedient, may refund or refund in advance,
bonds or notes, whether or not originally issued by the authority,
by the issuance of new bonds or notes.
(c) Except as may otherwise be expressly provided by the
authority, every issue of its notes or bonds shall be special
obligations of the authority, payable solely from the property,
revenues or other sources of or available to the authority pledged therefor.
(d) The bonds and the notes shall be authorized by the
authority, and shall be secured, be in such denominations, may bear
interest at such rate or rates, be in such form, either coupon or
registered, carry such registration privileges, be payable in such
medium of payment and at such place or places and such time or
times and be subject to such terms of redemption as the authority
may authorize. The bonds and notes of the authority may be sold by
the authority, at public or private sale, at or not less than the
price the authority determines. The bonds and notes shall be
executed by manual or facsimile signature by the chairman of the
board, and the official seal of the authority or a facsimile
thereof shall be affixed to or printed on each bond and note and
attested, manually or by facsimile signature, by the secretary of
the board, and any coupons attached to any bond or note shall bear
the manual or facsimile signature of the chairman of the board. In
case any officer whose signature, or a facsimile of whose
signature, appears on any bonds, notes or coupons ceases to be such
officer before delivery of such bonds or notes, such signature or
facsimile is nevertheless sufficient for all purposes the same as
if he or she had remained in office until such delivery; and, in
case the seal of the authority has been changed after a facsimile
has been imprinted on such bonds or notes, such facsimile seal will
continue to be sufficient for all purposes.
§5B-7-13. Approval by authority.
(a) To implement the powers and authority conferred upon it by
this article related to making loans, the board of the authority
may adopt a resolution pursuant to which it shall:
(1) Specify and describe the project it intends to finance;
(2) Generally describe the public purpose to be served and the
financing transaction to be accomplished under this article;
(3) Specify the maximum principal amount of any bonds or notes
to be issued by the authority, the maximum principal amount of the
loan, and the amount of insurance, if any, to be provided by the
authority; and
(4) Impose any terms or conditions on the issuance of notes or
bonds, the making of a loan or the provision of insurance that the
authority deems appropriate.
(b) The authority may, by resolution, or may delegate to the
executive director or other designee the authority to, specify,
prescribe, determine, provide for and approve such matters,
details, forms, documents or procedures as the authority deems
appropriate to the making of a loan, the authorization, sale,
issuance, security, delivery or payment of or for bonds or notes,
or the authority?s insurance of bonds, notes, loans or other
instruments, including, without limitation, the rate or rates of
interest and any security for the loan or insurance.
(c) The resolution adopted pursuant to this section is administrative in nature, is not subject to procedures required for
legislative acts, and is not subject to referendum.
(d) In any suit, action, or proceeding involving the validity
or enforceability of any bonds or notes issued, loan made, or
insurance extended by the authority under this article or any
security therefor, any finding by the authority as to the public
purpose of any actions taken under this article and the
appropriateness of those actions to serve the public purpose shall
be conclusive.
(e) Any resolution authorizing the issuance of bonds or notes
shall provide that such bonds or notes shall contain a recital that
they are issued pursuant to this article, which recital shall be
conclusive evidence of their validity and of the regularity of
their issuance.
§5B-7-14. Trustee for bondholders; contents of trust agreement;
pledge or assignment of revenues.
For bonds or notes issued pursuant to the provisions of this
article, in the discretion of the authority, any bonds or notes,
including refunding bonds or notes issued by the authority, may be
secured by a trust agreement between the authority and a corporate
trustee, which trustee may be any bank or trust company within or
without the state. Any such trust agreement may contain such
binding covenants with the holders of such bonds or notes as to any
matter or provisions as are deemed necessary or advisable to the authority to enhance the marketability and security of such bonds
or notes and may also contain such other provisions with respect
thereto as the authority may authorize and approve. Any resolution
adopted by the authority or any trust agreement may contain a
pledge or assignment of a revenues to be received in connection
with the financing.
§5B-7-15. Obligations of authority undertaken pursuant to this
article not debt of state, county, municipality or
any political subdivision.
Bonds and notes, including refunding bonds and notes, issued
under the authority of this article and any coupons in connection
therewith, and any other obligations undertaken by the authority
pursuant to 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 and 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,
but such bonds, notes and other obligations shall be payable solely
from 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 notes are refunded by refunding bonds
issued under the authority of this article, which bonds or refunding bonds shall be payable solely from revenues and funds
pledged for their payment as authorized by this article. All such
bonds and notes, and all documents evidencing any other obligation,
shall contain on the face thereof a statement to the effect that
the bonds, notes or such other obligation 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.
§5B-7-l6. Bonds and notes issued pursuant to this article; legal
investments.
The provisions of sections nine and ten, article six, chapter
twelve of this code to the contrary notwithstanding, the bonds and
notes issued pursuant to the provisions of this article are
securities in which all public officers and bodies of this state,
including the West Virginia state board of investments, all
municipalities and other political subdivisions of this state, all
insurance companies and associations and other persons carrying on
an insurance business, including domestic for life and domestic not
for life insurance companies, all banks, trust companies, societies
for savings, building and loan associations, savings and loan
associations, deposit guarantee associations and investment
companies, all administrators, guardians, executors, trustees and
other fiduciaries and all other persons whatsoever who are
authorized to invest in bonds or other obligations of the state may properly and legally invest funds, including capital, in their
control or belonging to them.
§5B-7-17. Exemption from taxation.
The exercise of the powers granted to the 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 is a public purpose. As the operation and
maintenance of projects financed under this article will constitute
the performance of essential governmental functions, the authority
shall not be required to pay any taxes or assessments upon any
property acquired or used by the authority or upon the income
therefrom. All bonds and notes of the authority, and all interest
and income thereon, shall be exempt from all taxation by this state
and any county, municipality, political subdivision or agency
thereof, except inheritance taxes.
§5B-7-18. Personal liability; persons executing bonds or notes
issued pursuant to this article.
Neither the members or officers of the authority or of any
authority, agency or office, nor any person executing the bonds or
notes issued pursuant to the provisions of this article, shall be
liable personally on such bonds or notes or be subject to any
personal liability or accountability by reason of the issuance
thereof.
§5B-7-19. Cumulative authority as to powers conferred; applicability of other statutes and charters; bonds
and notes issued pursuant to this article.
The provisions of this article relating to the making of loans
and to the issuance of bonds and notes shall be construed as
granting cumulative authority for the exercise of the various
powers herein conferred, and neither the powers nor any bonds or
notes issued hereunder shall be affected or limited by any other
statutory or charter provision now or hereafter in force, other
than as may be provided in this article, it being the purpose and
intention of this article to create full, separate and complete
additional powers. The various powers conferred herein may be
exercised independently and notwithstanding that no bonds or notes
are issued hereunder.
§5B-7-20. Documentary materials concerning trade secrets;
commercial or financial information; or
confidentiality.
Any documentary material or data made or received by the
authority for the purpose of furnishing assistance to a business,
to the extent that such material or data consists of trade secrets
or commercial or financial information regarding the financial
position or business operation of such business, shall not be
considered public records and shall be exempt from disclosure
pursuant to the provisions of chapter twenty-nine-b of this code.
Any discussion or consideration of such trade secrets or commercial or financial information may be held by the authority in executive
session closed to the public, notwithstanding the provisions of
article nine-a, chapter six of this code: Provided, That the
authority shall make publicly availablethe following information
regarding executed loans or its provision of insurance: (1) The
name of the debtor; (2) location(s) of the project; (3) amount of
the authority loan or financial assistance provided by the
insurance fund; (4) the purpose of the loan or financial
assistance; (5) the term, rate and interest of the loan; and (6)
the fixed assets which serve as security for the loan or insurance
provided.
§5B-7-21. Program and policy action statement; submission to joint
committee on government and finance.
The authority, the West Virginia development office and any
other authorities, boards, commissions, corporations or other
entities created under this chapter and article eleven, chapter
eighteen-b of this code, shall prepare and submit to the joint
committee on government and finance on or before the first day of
December, two thousand four, and each year thereafter, a program
and policy action statement which shall outline in specific detail
according to the purpose, powers and duties of the office or
section, its procedure, plan and program to be used in
accomplishing its goals and duties as required under this article.
§5B-7-22. Public private partnerships.
(a) The authority is authorized to enter into contractual or
joint venture agreements with a nonprofit corporation organized
pursuant to the corporate laws of the state, organized to permit
qualification pursuant to Section 501(c) of the Internal Revenue
Code and organized for purposes of the promotion and development of
tourism in West Virginia, and funded from sources other than the
state. Members of the commission are authorized to sit on the
board of directors of the private nonprofit corporation.
(b) From time to time the authority may enter into joint
ventures wherein the West Virginia development office and the
nonprofit corporation share in the development and funding of
tourism promotion or development programs.
(c) All contracts and joint venture agreements must be
approved by recorded vote of the authority. Contracts entered into
pursuant to this section for longer than one fiscal year shall
contain, in substance, a provision that the contract shall be
considered canceled without further obligation on the part of the
state if the Legislature or, where appropriate, the federal
government shall fail to appropriate sufficient funds therefor or
shall act to impair the contract or cause it to be canceled.
§5B-7-23. Audits.
As soon as possible after the close of each fiscal year, the
authority shall make an annual report of its activities for the
preceding fiscal year to the governor and the Legislature. Each such report shall set forth a complete operating and financial
statement covering the authority?s operations during the preceding
fiscal year. The authority shall cause an audit of its books and
accounts to be made at least once each fiscal year by certified
public accountants and the cost thereof may be treated as a part of
the cost of construction or of operations of its projects.
NOTE: The purpose of this bill is to establish a single
tourism authority with the required powers and duties to coordinate
tourism promotion and tourism facility development in this state,
to provide that all tourism function costs shall be paid from the
existing tourism promotion fund, and to provide for uses and
expenditures of such funds. The bill also places all tourism
personnel, assets and liabilities under the tourism authority and
grants the authority power to issue tourism development bonds.
All sections except §5B-2-12 are new; therefore,
strike-throughs and underscoring have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.