Senate Bill No. 235
(By Senators Browning, McCabe, White, Unger, Stollings, Chafin,
Plymale, D. Facemire, Foster, Kessler, Laird and Palumbo)
[Introduced January 20, 2010; referred to the Committee on
Economic Development; and then to the Committee on Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5B-2H-1, §5B-2H-2,
§5B-2H-3, §5B-2H-4, §5B-2H-5, §5B-2H-6, §5B-2H-7, §5B-2H-8,
§5B-2H-9, §5B-2H-10, §5B-2H-11 and §5B-2H-12, all relating to
the Creative Communities Development Pilot Program; providing
legislative findings and intent; creating the Creative
Communities Development Fund; establishing the Creative
Communities Development Board; providing requirements for
applications for the use of matching funds from the Creative
Communities Development Fund; providing for review of
applications by the West Virginia Development Office;
establishing that the Creative Communities Development Board
shall have the authority to approve matching grants from
Creative Communities Development Fund; establishing matching requirements from applicants; establishing eligible
expenditures; defining parameters of agreement between West
Virginia Development Office and a community for use of grant
funds; providing for a review and audit of expenditures by
West Virginia Development Office; and providing for review of
Creative Communities Development Pilot Program.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5B-2H-1, §5B-2H-2, §5B-
2H-3, §5B-2H-4, §5B-2H-5, §5B-2H-6, §5B-2H-7, §5B-2H-8, §5B-2H-9,
§5B-2H-10, §5B-2H-11 and §5B-2H-12, all to read as follows:
ARTICLE 2H. CREATIVE COMMUNITIES DEVELOPMENT PILOT PROGRAM.
§5B-2H-1. Purposes and objectives; short title; legislative
The Legislature finds and declares that:
(1) The development and enhancement of communities in West
Virginia with the ability to thrive in the face of the economic and
environmental challenges of the twenty-first century will make for
a stronger West Virginia by creating jobs, attracting new
professions, and developing additional sources of capital.
(2) The public policy of the state will be served through a
matching grant pilot program designed to foster innovative planning
to enhance communities with the following key foundations of
economic and environmental sustainability, including:
(A) Providing access to technological advances among citizens,
business, nonprofit entities, and governmental entities;
(B) Developing community centers, arts, historical, cultural
and recreational facilities;
(C) Providing aesthetic improvements to existing communities
(D) Fostering academic innovation in kindergarten through
twelfth-grade and lifelong learning programs;
(E) Fostering the development of diversity and inclusiveness
programs that help bridge ethnic, socioeconomic, historical and
cultural divides; and
(F) Fostering the development of renewable and alternative
(3) It is the intent of the Legislature in enacting this
article to create a matching grant pilot program to foster the
implementation of innovative planning strategies to develop and
expand communities that can maximize emerging economic opportunities
and environmental challenges and thrive in the twenty-first century.
(4) This article may be cited as the "Creative Communities
(A) "Applicant" means a community submitting an application
requesting grant funds pursuant to this article.
(B) "Board" means the Creative Communities Development Board created pursuant to section three of this article.
(C) "Community" means a county or municipality in the State of
West Virginia; a county or municipality development authority as
defined in article seven of chapter twelve of this code; a metro
government as defined in article one of chapter seven-a of this
code; a state institution of higher learning as defined in article
one of chapter eighteen-a of this code; or a local government
partnership as approved by the board.
(D) "Development Office" means the West Virginia Development
(E) "Local government partnership" means a partnership between
governmental entities that has been approved by the board under the
rules promulgated pursuant to section six of this article.
(F)"Project" means a plan submitted by an applicant for
matching grant funds pursuant to this article.
§5B-2H-2. Creation of Creative Communities Development Fund.
(a) All moneys collected for the purposes of the program shall
be deposited in a special State Treasury revenue account to be known
as the "Creative Communities Development Fund." Expenditures from
the special revenue account shall be for the purposes set forth in
this section and made in accordance with appropriations from the
Legislature and pursuant to the provisions of article three, chapter
twelve of this code and after the fulfilment of the provisions of
article two, chapter eleven-b of this code: Provided,
That for the fiscal year ending June 30, 2011, expenditures are authorized from
(b) The special revenue account consists of appropriations made
by the Legislature, income from the investment of moneys held in the
special revenue account and all other sums available for deposit to
the special revenue account from any source, public or private.
(c) Revenue shall be disbursed in the manner provided in this
article and for the purposes stated in this article and may not be
treated by the Auditor and Treasurer as part of the general revenue
of the state.
§5B-2H-3. Creation of Creative Communities Development Board.
(a) The Creative Communities Development Board is created
consisting of the following members:
(1) The Secretary of the Department of Commerce or designee;
(2) The Commissioner of Agriculture or designee;
(3) The Secretary of the Department of Education and the Arts
(4) The Executive Director of the Housing Development Fund or
(5) The Governor shall appoint with the advice and consent of
(A) One representative with general expertise on topics related
(i) Broadband availability and adoption among consumers and small businesses;
(ii) Issues related to very high-speed broadband availability
for larger organizations with high-bandwidth requirements; and
(iii) Issues related to public-private research opportunities
and commercialization strategies;
(B) One representative with general expertise on issues related
(i) Sustainable economic and community development;
(ii) Housing and real estate, including "creative class"-
(iii) Arts, historical and cultural initiatives and their
economic impact on communities; and
(iv) Issues related to the impact of "third places"-
historical, cultural and outdoor amenities, restaurants,
entertainment services and other similar services; and
(C) One representative with general expertise related to:
(i) The value of diversity in a community and economy and how
to foster diversity;
(ii) Issues related to communication and education of
historical and cultural values; and
(iii) Organizational and institutional issues related to
(b) The board may exercise all powers necessary to carry out
and effectuate its duties and decisions under this article. The board shall appoint a secretary and the secretary shall take minutes
of all board proceedings. The minutes shall be held by the
(c) The Secretary of the Department of Commerce or designee
serves as chair of the board. The Commissioner of Agriculture or
designee serves as vice chair of the board.
(d) The Secretary of the Department of Commerce or designee,
the Commissioner of Agriculture or designee, the Secretary of the
Department of Education and the Arts or designee and the Executive
Director of the Housing Development Fund or designee are ineligible
to receive compensation for serving as board members. For each day
or portion of a day spent in the discharge of duties pursuant to
this article, the board shall pay from the fund to eligible members
the same compensation and expense reimbursement as is paid to
members of the Legislature for their interim duties.
(e) The Development Office shall provide administrative support
for the board.
(f) The board may meet on at least a bi-monthly basis.
§5B-2H-4. Availability of funds; grant levels; matching
(a) All funds to be disbursed pursuant to a grant authorized
under this article may be made available only after the community
submits proper invoices in a timely manner to the Development Office
for expenditures authorized by the board as established in the project agreement entered into pursuant to section eight of this
(b) The board may provide a match rate of up to fifty percent
for a project for qualified invoices reflecting approved expenses
approved by the board pursuant to this article.
(c) Cost overruns above the award amount established by the
board shall be borne by the community and are not eligible for grant
funds unless the community submits a request to the board for
additional grant funds and the board grants approval in writing
prior to the expenditure of the costs by the community.
(d) In-kind services are not eligible for reimbursement.
(e) Matching funds may come from any source except that no
state funds from any source may be used for a match: Provided,
the use of state funds for a project does not prohibit a community
from receiving grant funds pursuant to this article by using
matching funds from sources other than state funds.
(f) The following matching levels are applicable:
(1) For a community with a population less than five thousand,
the maximum grant level per year is $200,000;
(2) For a community with a population more than or equal to
five thousand but less than fifteen thousand, the maximum grant
level per year is $300,000;
(3) For a community with a population more than or equal to
fifteen thousand but less than thirty thousand, the maximum grant level per year is $500,000; and
(4) For a community with a population equal to or greater than
thirty thousand, the maximum grant level per year is $1 million.
(g) Notwithstanding the provisions of subsection (f) of this
section, the maximum grant level per year is $1 million for a
community that is:
(1) A state institution of higher learning as defined in
article one of chapter eighteen-a of this code;
(2) A local government partnership as approved by the board;
(3) A metro government as defined in article one of chapter
seven-a of this code.
§5B-2H-5. Application to creative communities development board
for matching funds.
(a) The board shall develop grant application forms to
facilitate the board's evaluation of whether a project receives a
grant based on the following criteria:
(1) Whether the project will provide or expand access to
technological advances among citizens, business, nonprofit entities
and governmental entities affected by the project;
(2) Whether the project will develop or enhance community
centers, arts, historical, cultural and recreational facilities;
(3) Whether the project will provide aesthetic improvements to
existing communities and infrastructure;
(4) Whether the project will foster academic innovation in
kindergarten through twelfth grade and lifelong learning programs;
(5) Whether the project will foster the development of
diversity and inclusiveness programs that help bridge ethnic,
socioeconomic, historical and cultural divides;
(6) Whether the project will foster the development of
renewable or alternative energy sources;
(7) How the project will be funded, including whether other
sources of funds have been secured;
(8) How the project will use existing state, federal or local
(9) Whether any public-private partnerships have been
established for investment in the project;
(10) Whether colleges or universities are participating in the
(11) How the project will impact the attraction, retention, and
development of entrepreneurs in high-technology, environmentally
friendly, scientific, arts, historical, cultural, design,
engineering and similar industries.
(b) In addition to the requirements of subsection (a) of this
section, applications shall include the following:
(1) Total project cost;
(2) The amount of grant requested;
(3) The estimated completion date for the project; and
(4) Any other information required by the board.
(c) The applicant in the application shall disclose the
(1) Any financial benefit that will be received, if the
application is approved, by any entity in which the applicant, its
representatives, partner organizations, or its employees have an
(2) Any other employees or representatives of the applicant or
partner organizations may have with a vested interest that is not
otherwise described as part of the project;
(3) If the applicant and all partner organizations are
presently in compliance with all state, federal and local laws,
including, but not limited to, tax obligations, insurance
obligations, including workers' compensation coverage and
unemployment compensation obligations; and
(4) If the applicant or partner organizations are presently
involved in a bankruptcy proceeding, who within their organization
may be contacted for details of the bankruptcy proceeding.
Involvement in bankruptcy proceedings is not automatic
disqualification from the grants program, but the commission
reserves the right to request additional information regarding any
bankruptcy proceedings to insure the state's money is being granted
(d) Failure to accurately disclose the information required pursuant to subsection (c) of this section shall result in the
cancellation of any grant to the applicant previously approved by
the board and the disqualification of the community and its
representatives from future grant awards.
(e) Applications for grants pursuant to this article shall be
submitted by July 1 of each year.
The board with the assistance of the Development Office shall
propose rules, for legislative approval in accordance with article
three, chapter twenty-nine-a of this code to determine the standards
of eligibility for local government partnerships.
§5B-2H-7. Review of applications by West Virginia Development
Office and Creative Communities Development Board.
(a) The Development Office shall review all applications for
completeness and conformance to this article, including any
requirements established by the board. If an application is found
incomplete or not in conformance, the Development Office may return
the application to the applicant for additional information or
otherwise contact the applicant and request the information
(b) Once the Development Office determines that an application
is complete and complies with the provisions of this article, the
Development Office shall evaluate and develop a recommendation for
the board as to whether the board should approve the application.
(c) In reviewing applications for submission to the board, the
Development Office shall make recommendations as to the priority of
(d) The board shall review all applications found by the
Development Office to be in compliance with this article. Awards
of grants shall be based upon a vote of the board.
(e) Grants shall be awarded on a competitive basis, in
accordance with the criteria established by section five of this
(f) The board may reject, modify or approve an application
based on how successfully the application meets the evaluation
(g) The board may award grants at levels up to fifty percent
of the project cost.
(h) The Development Office shall notify unsuccessful applicants
in writing within fifteen days of the board's decision on the
(i) Grant applicants failing to receive an award due to funding
limitations may revise the grant request according to
recommendations of the Development Office and board, and resubmit
a grant application along with a letter of request for
reconsideration in accordance with deadlines established by the
§5B-2H-8. Eligible expenditures of grant funds; agreement for use of funds.
(a) A community may use grant funds for the following: 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, planning 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 other costs and expenses as may be necessary
or incidental to the financing and the construction or acquisition
of the creative community development or enhancement or completing
the development or enhancement.
(b) Notwithstanding the provisions of subsection (a) of this
subsection, the board may limit the expenditures of any proposed
grant in approving or modifying an application. The board may
direct the Development Office to place requirements on the use of
grant funds as part of any creative communities development project
agreement entered into pursuant to section nine of this article.
§5B-2H-9. Creative communities development project agreement.
The grant shall be finalized upon the entry of an agreement
between the Development Office and the applicant. The agreement
shall include, but is not limited to, the following:
(1) A statement that the information provided within the application is true and correct, and that the applicant has read and
understands this article;
(2) The grant amount;
(3) A promise by the applicant and partner organizations that
no in-kind services have been used to match any portion of the
(4) A commitment of the applicant to submit proper invoices in
a timely fashion for authorized expenses;
(5) A promise by the applicant not to assign or transfer any
of the rights, duties or obligations of the applicant without the
written consent of the Development Office;
(6) A promise by the applicant not to amend the grant without
the written consent of the Development Office;
(7) A commitment that the project must be completed by the
ending project date, unless a written request for an extension is
submitted no later than thirty days prior to the ending project
(8) A commitment that the community will provide an annual
report to the Development Office detailing project status including
the percentage of the project that is complete and the number of
jobs created by the project; and
(9) Any other condition required by the board as a condition
of the approval of any authorized grant.
§5B-2H-10. Material changes to project after grant award.
If the community desires to make material changes to the
project, the applicant shall notify the Development Office prior to
the project change. The Development Office shall review the
proposed modification and determine whether the project should
continue to receive funds within established grant levels pursuant
to the grant award. The Development Office may refuse to reimburse
any costs expended pursuant to a material change without the prior
notification and approval of the modification by the Development
Office. If the Development Office determines that the modification
to the project is not subject to reimbursement, the community may
apply to the board for a modification to the exiting grant.
§5B-2H-11. Audit and compliance.
(a) The Development Office may review, including audit an
applicant's or a partner organization's records, including financial
statements and supporting records, relating to any approved project.
Records, including financial statements and supporting records, must
be retained by the applicant and all partners for a minimum of three
years after the completion of the project.
(b) The Development Office may terminate any project agreement
upon discovery of any violation of the terms of the agreement,
state, or federal law by the applicant or partner organizations.
§5B-2H-12. Review of creative communities development pilot
On or before July 1, 2015, the Joint Committee on Government and Finance shall conduct a performance review on the pilot program.