ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 234
(By Senators Kessler (Acting President) and Hall,
By Request of the Executive)
____________
[Passed March 9, 2011; in effect ninety days from passage.]
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AN ACT to amend and reenact §8-38-3, §8-38-4, §8-38-5, §8-38-7,
§8-38-10, §8-38-12, §8-38-15, §8-38-16, §8-38-17 and §8-38-20
of the Code of West Virginia, 1931, as amended, all relating
to revising the Municipal Economic Opportunity Development
District Act generally; enlarging the types of municipal
corporations that may use sales tax increment financing to
finance certain economic development projects to any Class I,
Class II and Class III city and any Class IV town or village;
including "mining operations" in the definition of
"remediation"; including remediation of former coal or other
mining sites as a permissible development expenditure for a
project; changing the standard by which the maximum amounts of
reserves that may be established in the financing of a project
are measured; recommending that the Development Office consider whether the economic development that a project
enables is large enough to require that it contain mixed-use
development consisting of a housing component with at least
ten percent of housing units in the district allocated for
affordable housing when determining whether there is a
pressing need for the project; defining "affordable housing";
reducing the amount of capital investment required for project
approval; allowing the Development Office to reduce the
minimum amount of local sales tax revenues that would be
deposited into the state's General Revenue Fund in certain
circumstances; providing that the maximum repayment schedule
of all notes, bonds or other instruments issued to fund
projects is thirty years; and providing technical and clerical
cleanup.
Be it enacted by the Legislature of West Virginia:
That §8-38-3, §8-38-4, §8-38-5, §8-38-7, §8-38-10, §8-38-12,
§8-38-15, §8-38-16, §8-38-17 and §8-38-20 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§8-38-3. Definitions.
For purposes of this article, the term:
(1) "Affordable housing" means housing that could be purchased
with a cash down payment of at least ten percent and the proceeds
of a mortgage loan, the monthly principal and interest payments on which do not exceed thirty percent of the gross monthly income of
a household earning one hundred percent of the current median
family income, as computed by the United States Department of
Housing and Urban Development, for the county in which the district
is located. For the purposes of this definition, the monthly
principal and interest payments referred to in the preceding
sentence are computed using a standard amortization calculation
incorporating the prevailing annual rate of interest on mortgage
loans offered by financial institutions in the vicinity of the
district, as determined by the Development Office at the time of
its review of a municipality's application in accordance with
section seven of this article, and a thirty year amortization
period.
(2) "Development expenditures" means payments for governmental
functions, programs, activities, facility construction,
improvements and other goods and services which a district board is
authorized to perform or provide under section five of this
article;
(3) "District" means an economic opportunity development
district created pursuant to this article;
(4) "District board" means a district board created pursuant
to section ten of this article;
(5) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article;
(6) "Municipality" is a word of art and means any Class I,
Class II and Class III city or any Class IV town or village as
classified in section three, article one of this chapter;
(7) "Remediation" means measures undertaken to bring about the
reconditioning or restoration of property located within the
boundaries of an economic opportunity development district that has
been affected by exploration, mining, industrial operations or
solid waste disposal and which measures, when undertaken, will
eliminate or ameliorate the existing state of the property and
enable the property to be commercially developed.
§8-38-4. Authorization to create economic opportunity development
districts.
A municipality may, in accordance with the procedures and
subject to the limitations set forth in this article:
(1) Create one or more economic opportunity development
districts within its limits;
(2) Provide for the administration and financing of
development expenditures within the districts; and
(3) Provide for the administration and financing of a
continuing program of development expenditures within the
districts.
§8-38-5. Development expenditures.
Any municipality that has established an economic opportunity
development district under this article may make, or authorize to
be made by a district board and other public or private parties, development expenditures as will promote the economic vitality of
the district and the general welfare of the municipality,
including, but not limited to, expenditures for the following
purposes:
(1) Beautification of the district by means
includinglandscaping and construction and erection of fountains,
shelters, benches, sculptures, signs, lighting, decorations and
similar amenities;
(2) Provision of special or additional public services such as
sanitation, security for persons and property and the construction
and maintenance of public facilities, including, but not limited
to, sidewalks, parking lots, parking garages and other public
areas;
(3) Making payments for principal, interest, issuance costs,
any of the costs described in section twenty of this article and
appropriate reserves for bonds and other instruments and
arrangements issued or entered into by the municipality for
financing the expenditures of the district described in this
section and to otherwise implement the purposes of this article;
(4) Providing financial support for public transportation and
vehicle parking facilities open to the general public, whether
physically situate within the district's boundaries or on adjacent
land;
(5) Acquiring, building, demolishing, razing, constructing,
repairing, reconstructing, refurbishing, renovating, rehabilitating, expanding, altering, otherwise developing,
operating and maintaining real property generally, parking
facilities, commercial structures and other capital improvements to
real property, fixtures and tangible personal property, whether or
not physically situate within the district's boundaries:
Provided,
That the expenditure directly benefits the district;
(6) Developing plans for the architectural design of the
district and portions thereof and developing plans and programs for
the future development of the district;
(7) Developing, promoting and supporting community events and
activities open to the general public that benefit the district;
(8) Providing the administrative costs for a district
management program;
(9) Providing for the usual and customary maintenance and
upkeep of all improvements and amenities in the district as are
commercially reasonable and necessary to sustain its economic
viability on a permanent basis;
(10) Providing any other services that the municipality or
district board is authorized to perform and which the municipality
does not also perform to the same extent on a countywide basis;
(11) Making grants to the owners or tenants of economic
opportunity development district for the purposes described in this
section;
(12) Acquiring an interest in any entity or entities that own
any portion of the real property situate in the district and contributing capital to any entity or entities;
(13) Remediation of publicly or privately owned landfills,
former coal or other mining sites, solid waste facilities or
hazardous waste sites to facilitate commercial development which
would not otherwise be economically feasible; and
(14) To do any and all things necessary, desirable or
appropriate to carry out and accomplish the purposes of this
article notwithstanding any provision of this code to the contrary.
§8-38-7. Application to Development Office for approval of an
economic opportunity development district project.
(a)
General. -- The Development Office shall receive and act
on applications filed with it by municipalities pursuant to section
six of this article. Each application must include:
(1) A true copy of the notice described in section six of this
article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements,
additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development
expenditures necessary to permanently maintain the optimum economic viability of the district following its inception
: Provided, That
the amounts of the reserves may not exceed the amounts that would
be required by prevailing commercial capital market considerations;
(6) A description of the sources and anticipated amounts of
all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(7) A description of the financial contribution of the
municipality to the funding of development expenditures;
(8) Identification of any businesses that the municipality
expects to relocate their business locations from the district to
another place in the state in connection with the establishment of
the district or from another place in this state to the district:
Provided, That for purposes of this article, any entities shall be
designated "relocated entities";
(9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the municipality expects to continue doing business there
after the district is created;
(10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
Tax Commissioner by all business locations identified as provided
in subdivisions (8) and (9) of this subsection with respect to
their sales made and services rendered from their then current business locations that will be relocated from, or to, or remain in
the district for the twelve full calendar months next preceding the
date of the application:
Provided, That for purposes of this
article, the aggregate amount is designated as "the base tax
revenue amount";
(11) A good faith estimate of the gross annual district tax
revenue amount;
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article;
(13) The Tax Commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the Development Office; (ii) the
estimated amount of economic opportunity district excise tax that
will be collected during the first twelve months after the month in
which the Tax Commissioner would first begin to collect that tax;
and (iii) the estimated amount of economic opportunity district
excise tax that will be collected during the first thirty-six
months after the month in which the Tax Commissioner would first
begin to collect that tax; and
(14) Any additional information the Development Office may
require.
(b)
Review of applications. -- The Development Office shall
review all project proposals for conformance to statutory and regulatory requirements, the reasonableness of the project's budget
and timetable for completion and the following criteria:
(1) The quality of the proposed project and how it addresses
economic problems in the area in which the project will be located;
(2) The merits of the project determined by a cost-benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that, but for
the existence of sales tax increment financing, the project would
not be feasible;
(4) Whether the economic opportunity development district
excise tax dollars will leverage or be the catalyst for the
effective use of private, other local government, state or federal
funding that is available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve
the opportunities in the area where the project will be located for
the successful establishment or expansion of other industrial or
commercial businesses;
(7) Whether the project will, directly or indirectly, assist
in the creation of additional long-term employment opportunities in
the area and the quality of jobs created in all phases of the project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the
area, or part of the area, in which the economic opportunity
district is located:
Provided, That the Development Office should
consider whether the economic development project is large enough
to require that it contain a mixed use development provision
consisting of a housing component with at least ten percent of
housing units in the district allocated for affordable housing;
(9) Whether the municipality has a strategy for economic
development in the municipality and whether the project is
consistent with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) (A) The ability of the municipality and the project
developer or project team to carry out the project:
Provided, That
no project may be approved by the Development Office unless the
amount of all development expenditures proposed to be made in the
first twenty-four months following the creation of the district
results in capital investment of more than $25 million in the
district and the municipality submits clear and convincing
information, to the satisfaction of the Development Office, that
the investment will be made if the Development Office approves the project and the Legislature authorizes the municipality to levy an
excise tax on sales of goods and services made within the economic
opportunity development district as provided in this article.
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, no project involving remediation may
be approved by the Development Office unless the amount of all
development expenditures proposed to be made in the first
forty-eight months following the creation of the district results
in capital investment of more than $25 million in the district. In
addition to the remaining provisions of paragraph (A) of this
subdivision the Development Office may not approve a project
involving remediation authorized under section five of this article
unless the municipality submits clear and convincing information,
to the satisfaction of the Development Office, that the proposed
remediation expenditures to be financed by the issuance of bonds or
notes pursuant to section sixteen of this article do not constitute
more than twenty-five percent of the total development expenditures
associated with the project.
(c)
Additional criteria. -- The Development Office may
establish other criteria for consideration when approving the
applications.
(d)
Action on the application. -- The Executive Director of
the Development Office shall act to approve or not approve any
application within thirty days following the receipt of the
application or the receipt of any additional information requested by the Development Office, whichever is the later.
(e)
Certification of project. -- If the Executive Director of
the Development Office approves a municipality's economic
opportunity district project application, he or she shall issue to
the municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the Development Office has determined with respect to
the district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any
relevant information the Development Office requests from the Tax
Commissioner and the Tax Commissioner provides to the Development
Office:
Provided, That in determining the net annual district tax
revenue amount, the Development Office may not use a base tax
revenue amount less than that amount certified by the Tax
Commissioner but, in lieu of confirmation from the Tax Commissioner
of the gross annual district tax revenue amount, the Development
Office may use the estimate of the gross annual district tax
revenue amount provided by the municipality pursuant to subsection
(a) of this section.
(f)
Certification of enlargement of geographic boundaries of
previously certified district. -- If the Executive Director of the Development Office approves a municipality's economic opportunity
district project application to expand the geographic boundaries of
a previously certified district, he or she shall issue to the
municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue amount,
all of which the Development Office has determined with respect to
the district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any
relevant information the Development Office requests from the Tax
Commissioner and the Tax Commissioner provides to the Development
Office:
Provided, That in determining the net annual district tax
revenue amount, the Development Office may not use a base tax
revenue amount less than that amount certified by the Tax
Commissioner, but, in lieu of confirmation from the Tax
Commissioner of the gross annual district tax revenue amount, the
Development Office may use the estimate of the gross annual
district tax revenue amount provided by the municipality pursuant
to subsection (a) of this section.
(g)
Promulgation of rules. -- The Executive Director of the
Development Office may promulgate rules to implement the economic
opportunity development district project application approval process and to describe the criteria and procedures it has
established in connection therewith. These rules are not subject
to the provisions of chapter twenty-nine-a of this code but shall
be filed with the Secretary of State.
§8-38-10. Ordinance to create district as approved by Development
Office and authorized by the Legislature.
(a)
General. -- If an economic opportunity development
district project has been approved by the Executive Director of the
Development Office and the levying of a special district excise tax
for the district has been authorized by the Legislature, all in
accordance with this article, the municipality may create the
district by ordinance entered of record as provided in article one
of this chapter:
Provided, That the municipality may not amend,
alter or change in any manner the boundaries of the economic
opportunity development district authorized by the Legislature. In
addition to all other requirements, the ordinance shall contain the
following:
(1) The name of the district and a description of its
boundaries;
(2) A summary of any proposed services to be provided and
capital improvements to be made within the district and a
reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that
may be imposed upon sales by businesses for the privilege of
operating within the district, which tax shall be passed on to and paid by the consumer, and the manner in which the taxes will be
imposed, administered and collected, all of which shall be in
conformity with the requirements of this article; and
(4) The district board members' terms, their method of
appointment and a general description of the district board's
powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its
organization and operations not inconsistent with any applicable
laws;
(B) To elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operations;
(C) To enter into contracts with any person, agency,
government entity, agency or instrumentality, firm, partnership,
limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and
not-for-profit organizations and generally to do any and all things
necessary or convenient for the purpose of promoting, developing
and advancing the purposes described in section two of this
article;
(D) To amend or supplement any contracts or leases or to enter
into new, additional or further contracts or leases upon the terms
and conditions for consideration and for any term of duration, with
or without option of renewal, as agreed upon by the district board
and any person, agency, government entity, agency or instrumentality, firm, partnership, limited partnership, limited
liability company or corporation;
(E) To, unless otherwise provided in, and subject to the
provisions of any contracts or leases to operate, repair, manage,
and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use
thereof and incidental thereto to provide services, such as retail
stores and restaurants, and to effectuate incidental purposes,
grant leases, permits, concessions or other authorizations to any
person or persons upon the terms and conditions for consideration
and for the term of duration as agreed upon by the district board
and any person, agency, governmental department, firm or
corporation;
(F) To delegate any authority given to it by law to any of its
officers, committees, agents or employees;
(G) To apply for, receive and use grants-in-aid, donations and
contributions from any source or sources and to accept and use
bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or construction
or in any other lawful manner and hold title thereto in its own
name and to sell, lease or otherwise dispose of all or part of any
real property which it may own, either by contract or at public
auction, upon the approval by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease and dispose of all or part of any personal property which it may
own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that
there exists a continuing need for development expenditures and
that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable
notes and other evidences of indebtedness therefor, on the terms as
the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the
district's rights in its subaccount of the Economic Opportunity
Development District Fund;
(K) To acquire (either directly or on behalf of the
municipality) an interest in any entity or entities that own any
real property situate in the district, to contribute capital to any
entity or entities and to exercise the rights of an owner with
respect thereto; and
(L) To expend its funds in the execution of the powers and
authority given in this section, which expenditures, by the means
authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and use,
in the public interest and for the general welfare of the people of
West Virginia, to alleviate and prevent economic deterioration and
to relieve the existing critical condition of unemployment existing
within the state.
(b)
Additional contents of ordinance. -- The municipality's ordinance shall also state the general intention of the
municipality to develop and increase services and to make capital
improvements within the district.
(c)
Mailing of certified copies of ordinance. -- Upon
enactment of an ordinance establishing an economic opportunity
development district excise tax, a certified copy of the ordinance
shall be mailed to the State Auditor, as ex officio the chief
inspector and supervisor of public offices, the State Treasurer and
the Tax Commissioner.
§8-38-12. Special district excise tax authorized.
(a)
General. -- The council of a municipality, authorized by
the Legislature to levy a special district excise tax for the
benefit of an economic opportunity development district, may, by
ordinance, impose that tax on the privilege of selling tangible
personal property and rendering select services in the district in
accordance with this section.
(b)
Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base of
the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district. Sales of gasoline
and special fuel are not subject to special district excise tax,
but remain subject to the tax levied by article fifteen, chapter
eleven of this code. Except for the exemption provided in section
nine-f of article fifteen, chapter eleven of this code, all exemptions and exceptions from the consumers sales and service tax
also apply to the special district excise tax.
(c)
Tax rate. -- The rate or rates of a special district
excise tax levied pursuant to this section shall be stated in an
ordinance enacted by the municipality and identical to the rate or
rates of the consumers sales and service tax imposed pursuant to
article fifteen, chapter eleven of this code on sales rendered
within the boundaries of the district authorized by this section.
(d)
Collection by Tax Commissioner. -- The ordinance of the
municipality imposing a special district excise tax shall provide
for the tax to be collected by the Tax Commissioner in the same
manner as the tax levied by section three, article fifteen, chapter
eleven of this code is administered, assessed, collected and
enforced.
(1) The State Tax Commissioner may require the electronic
filing of returns related to the special district excise tax
imposed pursuant to this section and may require the electronic
payment of the special district excise tax imposed pursuant to this
section. The State Tax Commissioner may prescribe by rules adopted
or proposed pursuant to article three, chapter twenty-nine-a of
this code, administrative notices, and forms and instructions, the
procedures and criteria to be followed to electronically file those
returns and to electronically pay the special district excise tax
imposed pursuant to this section.
(2) Any rules filed by the State Tax Commissioner relating to the special district excise tax imposed pursuant to this section
shall set forth the following:
(A) Acceptable indicia of timely payment;
(B) Which type of electronic filing method or methods a
particular type of taxpayer may or may not use;
(C) What type of electronic payment method or methods a
particular type of taxpayer may or may not use;
(D) What, if any, exceptions are allowable and alternative
methods of payment that may be used for any exceptions;
(E) Procedures for making voluntary or mandatory electronic
payments or both; and
(F) Any other provisions necessary to ensure the timely
electronic filing of returns related to the special district excise
tax and the making of payments electronically of the special
district excise tax imposed pursuant to this section.
(3) (A) Notwithstanding the provisions of section five-d,
article ten, chapter eleven of this code: (i) So long as bonds are
outstanding pursuant to this article, the Tax Commissioner shall
provide on a monthly basis to the trustee for bonds issued pursuant
to this article information on returns submitted pursuant to this
article; and (ii) the trustee may share the information so obtained
with the municipality that established the economic opportunity
development district that issued the bonds pursuant to this article
and with the bondholders and with bond counsel for bonds issued
pursuant to this article. The Tax Commissioner and the trustee may enter into a written agreement in order to accomplish exchange of
the information.
(B) Any confidential information provided pursuant to this
subdivision shall be used solely for the protection and enforcement
of the rights and remedies of the bondholders of bonds issued
pursuant to this article. Any person or entity that is in
possession of information disclosed by the Tax Commissioner or
shared by the trustee pursuant to subdivision (a) of this
subsection is subject to the provisions of section five-d, article
ten, chapter eleven of this code as if the person or entity that is
in possession of the tax information is an officer, employee, agent
or representative of this state or of a local or municipal
governmental entity or other governmental subdivision.
(e)
Deposit of net tax collected. --
(1) The ordinance of the municipality imposing a special
district excise tax shall provide that the Tax Commissioner deposit
the net amount of tax collected in the special Economic Opportunity
Development District Fund to the credit of the municipality's
subaccount therein for the economic opportunity development
district and that the money in the subaccount may only be used to
pay for development expenditures as provided in this article except
as provided in subsection (f) of this section.
(2) (A) The State Treasurer shall withhold from the
municipality's subaccount in the Economic Opportunity Development
District Fund and shall deposit in the General Revenue Fund of this state, on or before the twentieth day of each calendar month next
following the effective date of a special district excise tax, a
sum equal to one twelfth of the base tax revenue amount last
certified by the Development Office pursuant to section seven of
this article.
(B) In addition to the amounts described in paragraph (A) of
this subdivision, the Tax Commissioner shall deposit in the General
Revenue Fund of this state on the dates specified in paragraph (A)
not less than twenty percent nor more than fifty percent of the
excess of the special district excise taxes collected during the
preceding month above one twelfth of the base tax revenue, said
percentage to be fixed by the Development Office in conjunction
with its approval of an application in accordance with section
seven of this article based on the amount of state funds, if any,
to be expended in conjunction with the respective economic
opportunity development district project for items including, but
not limited to, the acquisition, construction, reconstruction,
improvement, enlargement or extension of roadways, rights-of-way,
sidewalks, traffic signals, water or sewer lines and other public
infrastructure and such other expenditures of state funds
identified by the Development Office:
Provided, That the
Development Office has the discretion to reduce the minimum
percentage of the excess special district excise taxes deposited by
the Tax Commissioner in the General Revenue Fund as outlined above
from twenty percent to ten percent in conjunction with its approval of an application in accordance with section seven of this article
based on its determination that:
(i) The economic development project provides for expenditures
in excess of $100 million;
(ii) The economic opportunity development district project
does not require the state to expend any additional state funds for
items within the district including, but not limited to, the
acquisition, construction, reconstruction, improvement, enlargement
or extension of roadways, rights-of-way, sidewalks, traffic
signals, water or sewer lines and other public infrastructure; and
(iii) The economic development project contains a provision
for a mixed use development with a housing component with at least
ten percent of housing units in the district allocated as
affordable housing.
(f)
Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section are
effective on the first day of the calendar month that begins at
least sixty days after the date of enactment of the ordinance
imposing the tax or at any later date expressly designated in the
ordinance that begins on the first day of a calendar month.
(g)
Copies of ordinance. -- Upon enactment of an ordinance
levying a special district excise tax, a certified copy of the
ordinance shall be mailed to the State Auditor, as ex officio the
chief inspector and supervisor of public offices, the State
Treasurer and the Tax Commissioner.
§8-38-15. Abolishment and dissolution of district; notice;
hearing.
(a)
General. -- Except upon the express written consent of
the Executive Director of the Development Office and of all the
holders or obligees of any indebtedness or other instruments the
proceeds of which were applied to any development expenditures or
any indebtedness, the payment of which is secured by revenues
payable into the fund provided under section eight of this article
or by any public property, a district may only be abolished by the
municipality when there is no outstanding indebtedness the proceeds
of which were applied to any development expenditures or the
payment of which is secured by revenues payable into the fund
provided under section eight of this article, or by any public
property, and following a public hearing upon the proposed
abolishment.
(b)
Notice of public hearing. -- Notice of the public hearing
required by subsection (a) of this section shall be provided by
first-class mail to all owners of real property within the district
and shall be published as a Class I-0 legal advertisement in
compliance with article three, chapter fifty-nine of this code at
least twenty days prior to the public hearing.
(c)
Transfer of district assets and funds. -- Upon the
abolishment of any economic opportunity development district, any
funds or other assets, contractual rights or obligations, claims against holders of indebtedness or other financial benefits,
liabilities or obligations existing after full payment has been
made on all existing contracts, bonds, notes or other obligations
of the district are transferred to and assumed by the municipality.
Any funds or other assets transferred shall be used for the benefit
of the area included in the district being abolished.
(d)
Reinstatement of district. -- Following abolishment of a
district pursuant to this section, its reinstatement requires
compliance with all requirements and procedures set forth in this
article for the initial development, approval, establishment and
creation of an economic opportunity development district.
§8-38-16. Bonds issued to finance economic opportunity development
district projects.
(a)
General. -- The municipality that established the
economic opportunity development district may issue bonds or notes
for the purpose of financing development expenditures, as described
in section five of this article, with respect to one or more
projects within the economic opportunity development district.
(b)
Limited obligations. -- All bonds and notes issued by a
municipality under the authority of this article are limited
obligations of the municipality.
(c)
Term of obligations. -- No municipality may issue notes,
bonds or other instruments for funding district projects or
improvements that exceed a repayment schedule of thirty years.
(d)
Debt service. -- The principal and interest on the bonds
is payable out of the funds on deposit in the subaccount
established for the economic opportunity development district
pursuant to section eight of this article, including, without
limitation, any funds derived from the special district excise tax
imposed by section twelve of this article or other revenues derived
from the economic opportunity development district to the extent
pledged for the purpose by the municipality in the ordinance
authorizing the bonds.
(e)
Surplus funds. -- To the extent that the average daily
amount on deposit in the subaccount established for a district
pursuant to section eight of this article exceeds, for more than
six consecutive calendar months, the sum of: (1) $100,000; plus (2)
the amount required to be kept on deposit pursuant to the documents
authorizing, securing or otherwise relating to the bonds or notes
issued under this section, then the excess shall be used by the
district either to redeem the bonds or notes previously issued or
remitted to the General Fund of this state.
(f)
Debt not general obligation of municipality. -- Neither
the notes or bonds and any interest coupons issued under the
authority of this article shall ever constitute an indebtedness of
the municipality issuing the notes or bonds within the meaning of
any Constitutional provision or statutory limitation and do not
constitute or give rise to a pecuniary liability of the
municipality issuing the notes or bonds.
(g)
Debt not a charge general credit or taxing powers of
municipality. -- Neither the bonds or notes, nor interest thereon,
is a charge against the general credit or taxing powers of the
municipality and that fact shall be plainly stated on the face of
each bond or note.
(h)
Issuance of bonds or notes. --
(1) Bonds or notes allowed under this section may be executed,
issued and delivered at any time and, from time to time, may be in
a form and denomination, may be of a tenor, must be negotiable but
may be registered as to the principal thereof or as to the
principal and interest thereof, may be payable in any amounts and
at any time or times, may be payable at any place or places, may
bear interest at any rate or rates payable at any place or places
and evidenced in any manner and may contain any provisions therein
not inconsistent herewith, all as provided in the ordinance of the
municipality whereunder the bonds or notes are authorized to be
issued.
(2) The bonds may be sold by the municipality at public or
private sale at, above or below par as the municipality authorizes.
(3) Bonds and notes issued pursuant to this article shall be
signed by the authorized representative of the municipality and
attested by the municipal clerk or recorder and be under the seal
of the municipality.
(4) Any coupons attached to the bonds shall bear the facsimile
signature of the authorized representative of the municipality. If any of the officials whose signatures appear on the bonds, notes or
coupons cease to be officers before the delivery of the bonds or
notes, their signatures are valid and sufficient for all purposes
to the same extent as if they had remained in office until the
delivery.
(i)
Additional bonds or notes. -- If the proceeds of the
bonds or notes, by error of calculation or otherwise, are less than
the cost of the economic opportunity development district project,
or if additional real or personal property is to be added to the
district project or if it is determined that financing is needed
for additional development expenditures, additional bonds or notes
may, in like manner, be issued to provide the amount of the
deficiency or to defray the cost of acquiring or financing any
additional real or personal property or development expenditures
and, unless otherwise provided in the trust agreement, mortgage or
deed of trust, are considered to be of the same issue and are
entitled to payment from the same fund, without preference or
priority, and are of equal priority as to any security.
§8-38-17. Security for bonds.
(a)
General. -- Unless the municipality otherwise determines
in the ordinance authorizing the issuance of the bonds or notes
under the authority of this article, there is hereby created a
statutory lien upon the subaccount created pursuant to section
eight of this article and all special district excise tax revenues
collected for the benefit of the district pursuant to section eleven-a, article ten, chapter eleven of this code for the purpose
of securing the principal of the bonds or notes and the interest
thereon.
(b)
Security for debt service. -- The principal of and
interest on any bonds or notes issued under the authority of this
article shall be secured by a pledge of the special district excise
tax revenues derived from the economic opportunity development
district project by the municipality issuing the bonds or notes to
the extent provided in the ordinance adopted by the municipality
authorizing the issuance of the bonds or notes.
(c)
Trust indenture. --
(1) In the discretion and at the option of the municipality,
the bonds and notes may also be secured by a trust indenture by and
between the municipality and a corporate trustee, which may be a
trust company or bank having trust powers, within or without the
State of West Virginia.
(2) The ordinance authorizing the bonds or notes and fixing
the details thereof may provide that the trust indenture may
contain provisions for the protection and enforcing the rights and
remedies of the bondholders as are reasonable and proper, not in
violation of law, including covenants setting forth the duties of
the municipality in relation to the construction, acquisition or
financing of an economic opportunity development district project,
or part thereof or an addition thereto, and the improvement,
repair, maintenance and insurance thereof and for the custody, safeguarding and application of all moneys and may provide that the
economic opportunity development district project shall be
constructed and paid for under the supervision and approval of the
consulting engineers or architects employed and designated by the
municipality or, if directed by the municipality in the ordinance,
by the district board, and satisfactory to the purchasers of the
bonds or notes, their successors, assigns or nominees who may
require the security given by any contractor or any depository of
the proceeds of the bonds or notes or the revenues received from
the district project be satisfactory to the purchasers, their
successors, assigns or nominees.
(3) The indenture may set forth the rights and remedies of
the bondholders, the municipality or trustee and the indenture may
provide for accelerating the maturity of the revenue bonds, at the
option of the bondholders or the municipality issuing the bonds,
upon default in the payment of the amounts due under the bonds.
(4) The municipality may also provide by resolution and in the
trust indenture for the payment of the proceeds of the sale of the
bonds or notes and the revenues from the economic opportunity
development district project to any depository it determines, for
the custody and investment thereof and for the method of
distribution thereof, with safeguards and restrictions it
determines to be necessary or advisable for the protection thereof
and upon the filing of a certified copy of the resolution or of the
indenture for record with the clerk or recorder of the municipality in which the economic opportunity development project is located,
the resolution has the same effect, as to notice, as the
recordation of a deed of trust or other recordable instrument.
(5) In the event that more than one certified resolution or
indenture is recorded, the security interest granted by the first
recorded resolution or indenture has priority in the same manner as
an earlier filed deed of trust except to the extent the earlier
recorded resolution or indenture provides otherwise.
(d)
Mortgage or deed of trust. --
(1) In addition to or in lieu of the indenture provided in
subsection (c) of this section, the principal of and interest on
the bonds or notes may, but need not, be secured by a mortgage or
deed of trust covering all or any part of the economic opportunity
development district project from which the revenues pledged are
derived and the same may be secured by an assignment or pledge of
the income received from the economic opportunity development
district project.
(2) The proceedings under which bonds or notes are authorized
to be issued, when secured by a mortgage or deed of trust, may
contain the same terms, conditions and provisions provided herein
when an indenture is entered into between the municipality
and a trustee and any mortgage or deed of trust may contain any
agreements and provisions customarily contained in instruments
securing bonds or notes, including, without limiting the generality
of the foregoing, provisions respecting the fixing and collection of revenues from the economic opportunity development district
project covered by the proceedings or mortgage, the terms to be
incorporated in any lease, sale or financing agreement with respect
to the economic opportunity development district project, the
improvement, repair, maintenance and insurance of the economic
opportunity development district project, the creation and
maintenance of special funds from the revenues received from the
economic opportunity development district project and the rights
and remedies available in event of default to the bondholders or
note holders, the municipality, or to the trustee under an
agreement, indenture, mortgage or deed of trust, all as the
municipality considers advisable and shall not be in conflict with
the provisions of this article or any existing law:
Provided, That
in making any agreements or provisions, a municipality shall not
have the power to incur original indebtedness by indenture,
ordinance, resolution, mortgage or deed of trust except with
respect to the economic opportunity development district project
and the application of the revenues therefrom and shall not have
the power to incur a pecuniary liability or a charge upon its
general credit or against its taxing powers unless approved by the
voters in accordance with article one, chapter thirteen of this
code or as otherwise permitted by the Constitution of this state.
(e)
Enforcement of obligations. --
(1) The proceedings authorizing any bonds and any indenture,
mortgage or deed of trust securing the bonds may provide that, in the event of default in payment of the principal of or the interest
on the bonds, or notes, or in the performance of any agreement
contained in the proceedings, indenture, mortgage or deed of trust,
payment and performance may be enforced by the appointment of a
receiver in equity with power to charge and collect rents or other
amounts and to apply the revenues from the economic opportunity
development district project in accordance with the proceedings or
the provisions of the agreement, indenture, mortgage or deed of
trust.
(2) Any agreement, indenture, mortgage or deed of trust may
provide also that, in the event of default in payment or the
violation of any agreement contained in the mortgage or deed of
trust, the agreement, indenture, mortgage or deed of trust may be
foreclosed either by sale at public outcry or by proceedings in
equity and may provide that the holder or holders of any of the
bonds secured thereby may become the purchaser at any foreclosure
sale, if the highest bidder therefor.
(f)
No pecuniary liability. -- No breach of any agreement,
indenture, mortgage or deed of trust may impose any pecuniary
liability upon a municipality or any charge upon its general credit
or against its taxing powers.
§8-38-20. Use of proceeds from sale of bonds.
(a)
General. -- The proceeds from the sale of any bonds
issued under authority of this article shall be applied only for
the purpose for which the bonds were issued:
Provided, That any accrued interest received in any sale shall be applied to the
payment of the interest on the bonds sold:
Provided, however, That
if for any reason any portion of the proceeds may not be needed for
the purpose for which the bonds were issued, then the unneeded
portion of the proceeds may be applied to the purchase of bonds for
cancellation or payment of the principal of or the interest on the
bonds, or held in reserve for the payment thereof.
(b)
Payment of costs. -- The costs that may be paid with the
proceeds of the bonds include all development expenditures
described in section five of this article and may also include, but
not be limited to, the following:
(1) The cost of acquiring any real estate determined
necessary;
(2) The actual cost of the construction of any part of an
economic opportunity development district project which may be
constructed, including architects', engineers', financial or other
consultants' and legal fees;
(3) The purchase price or rental of any part of an economic
opportunity development district project that may be acquired by
purchase or lease;
(4) All expenses incurred in connection with the
authorization, sale and issuance of the bonds to finance the
acquisition and the interest on the bonds for a reasonable time
prior to construction during construction and for not exceeding
twelve months after completion of construction; and
(5) Any other costs and expenses reasonably necessary in the
establishment and acquisition of an economic opportunity
development district project and the financing thereof.
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