ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 682
(Senators Plymale, Edgell, Unger, Bailey, Green,
Hunter, Oliverio, Stollings, Wells, White, Guills and Hall,
original sponsors)
____________
[Passed March 8, 2008; in effect from passage.]
_____________
AN ACT to amend and reenact §18B-10-8 of the Code of West Virginia,
1931, as amended; and to amend and reenact §29-22-18 of said
code, all relating to creating a special revenue fund known as
the Community and Technical College Capital Improvement Fund;
providing for depositing funds pledged to repay principal,
interest and/or redemption premium on certain bonds authorized
by the commission for community and technical college capital
improvements; and allocating five million dollars to the
Higher Education Policy Commission Community and Technical
College Capital Improvement Fund for community and technical
college education capital improvements.
Be it enacted by the Legislature of West Virginia:
That §18B-10-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §29-22-18 of said code be
amended and reenacted, all to read as follows:
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-8. Collection; disposition and use of capital and
auxiliary capital fees; creation of special capital
and auxiliary capital improvements funds; revenue
bonds.
(a) This section and any rules adopted by the commission,
council or both, in accordance with this section and article three-
a, chapter twenty-nine-a of this code, governs the collection,
disposition and use of the capital and auxiliary capital fees
authorized by section one of this article.
The statutory
provisions governing collection and disposition of capital funds in
place prior to the enactment of this section remain in effect.
(b) Fees for full-time students. -- The governing boards
shall fix capital and auxiliary capital fees for full-time students
at each state institution of higher education per semester. For
institutions under its jurisdiction, a governing board may fix the
fees at higher rates for students who are not residents of this
state.
(c) Fees for part-time students. -- For all part-time
students and for all summer school students, the governing boards shall impose and collect the fees in proportion to, but not
exceeding, the fees paid by full-time students. Refunds of the
fees may be made in the same manner as any other fee collected at
state institutions of higher education.
(d) There is continued in the State Treasury a special capital
improvements fund and special auxiliary capital improvements fund
for each state institution of higher education and the commission
into which shall be paid all proceeds, respectively, of:
(1) The capital and auxiliary capital fees collected from
students at all state institutions of higher education pursuant to
this section; and
(2) The fees collected from the students pursuant to section
one of this article. The fees shall be expended by the commission
and governing boards for the payment of the principal of or
interest on any revenue bonds issued by the board of regents or the
succeeding governing boards for which the fees were pledged prior
to the enactment of this section.
(e) The governing boards may make expenditures from any of the
special capital improvements funds or special auxiliary capital
improvement funds established in this section to finance, in whole
or in part, together with any federal, state or other grants or
contributions, for any one or more of the following projects:
(1) The acquisition of land or any rights or interest in land;
(2) The construction or acquisition of new buildings;
(3) The renovation or construction of additions to existing
buildings;
(4) The acquisition of furnishings and equipment for the
buildings; and
(5) The construction or acquisition of any other capital
improvements or capital education facilities at the state
institutions of higher education, including any roads, utilities or
other properties, real or personal, or for other purposes
necessary, appurtenant or incidental to the construction,
acquisition, financing and placing in operation of the buildings,
capital improvements or capital education facilities, including
student unions, dormitories, housing facilities, food service
facilities, motor vehicle parking facilities and athletic
facilities.
(f) The governing boards, in their discretion, may use the
moneys in the special capital improvements funds and special
auxiliary improvement funds to finance the costs of the purposes
set forth in this section on a cash basis. The commission, when
singly or jointly requested by the governing boards, periodically
may issue revenue bonds of the state as provided in this section to
finance all or part of the purposes and pledge all or any part of
the moneys in such special funds for the payment of the principal
of and interest on the revenue bonds, and for reserves for the
revenue bonds. Any pledge of the special funds for the revenue bonds shall be a prior and superior charge on the special funds
over the use of any of the moneys in the funds to pay for the cost
of any of the purposes on a cash basis. Any expenditures from the
special funds, other than for the retirement of revenue bonds, may
be made by the commission or governing boards only to meet the cost
of a predetermined capital improvements program for one or more of
the state institutions of higher education, in the order of
priority agreed upon by the governing board or boards and the
commission and for which the aggregate revenue collections
projected are presented to the Governor for inclusion in the annual
budget bill, and are approved by the Legislature for expenditure.
(g) The revenue bonds periodically may be authorized and
issued by the commission or governing boards to finance, in whole
or in part, the purposes provided in this section in an aggregate
principal amount not exceeding the amount which the commission
determines can be paid as to both principal and interest and
reasonable margins for a reserve therefor from the moneys in the
special funds.
(h) The issuance of the revenue bonds shall be authorized by
a resolution adopted by the governing board receiving the proceeds
and the commission and the revenue bonds shall bear the date or
dates; mature at such time or times not exceeding forty years from
their respective dates; be in such form either coupon or
registered, with such exchangeability and interchangeability privileges; be payable in such medium of payment and at such place
or places, within or without the state; be subject to such terms of
prior redemption at such prices not exceeding one hundred five per
centum of the principal amount thereof; and shall have the other
terms and provisions determined by the governing board receiving
the proceeds and the commission. The revenue bonds shall be signed
by the Governor and by the chancellor of the commission or the
chair of the governing boards authorizing the issuance thereof,
under the Great Seal of the State, attested by the Secretary of
State, and the coupons attached to the revenue bonds shall bear the
facsimile signature of the chancellor of the commission or the
chair of the appropriate governing boards. The revenue bonds shall
be sold in the manner the commission or governing board determines
is for the best interests of the state.
(i) The commission or governing boards may enter into trust
agreements with banks or trust companies, within or without the
state, and in the trust agreements or the resolutions authorizing
the issuance of the bonds may enter into valid and legally binding
covenants with the holders of the revenue bonds as to the custody,
safeguarding and disposition of the proceeds of the revenue bonds,
the moneys in the special funds, sinking funds, reserve funds or
any other moneys or funds; as to the rank and priority, if any, of
different issues of revenue bonds by the commission or governing
boards under the provisions of this section; as to the maintenance or revision of the amounts of the fees; as to the extent to which
swap agreements, as defined in subsection (h), section two, article
two-g, chapter thirteen of this code shall be used in connection
with the revenue bonds, including such provisions as payment, term,
security, default and remedy provisions as the commission shall
consider necessary or desirable, if any, under which the fees may
be reduced; and as to any other matters or provisions which are
considered necessary and advisable by the commission or governing
boards in the best interests of the state and to enhance the
marketability of the revenue bonds.
(j) After the issuance of any revenue bonds, the fees at the
state institutions of higher education pledged to the payment
thereof may not be reduced as long as any of the revenue bonds are
outstanding and unpaid except under such terms, provisions and
conditions as shall be contained in the resolution, trust agreement
or other proceedings under which the revenue bonds were issued.
The revenue bonds are and constitute negotiable instruments under
the Uniform Commercial Code of this state; together with the
interest thereon, be exempt from all taxation by the state of West
Virginia, or by any county, school district, municipality or
political subdivision thereof; and the revenue bonds may not be
considered to be obligations or debts of the state and the credit
or taxing power of the state may not be pledged therefor, but the
revenue bonds shall be payable only from the revenue pledged therefor as provided in this section.
(k) Additional revenue bonds may be issued by the commission
or governing boards pursuant to this section and financed by
additional revenues or funds dedicated from other sources.. There
is hereby created in the State Treasury a special revenue fund
known as the Community and Technical College Capital Improvement
Fund into which shall be deposited the amounts specified in
subsection (j), section eighteen, article twenty-two, chapter
twenty-nine of this code. All amounts deposited in the fund shall
be pledged to the repayment of the principal, interest and
redemption premium, if any, on any revenue bonds or refunding
revenue bonds authorized by the commission for community and
technical college capital improvements.
(l) Funding of systemwide and campus-specific revenue bonds
under any other section of this code is continued and authorized
pursuant to the terms of this section. Revenues of any state
institution of higher education pledged to the repayment of any
revenue bonds issued pursuant to this code shall remain pledged.
(m) Any revenue bonds for state institutions of higher
education proposed to be issued under this section or other
sections of this code first must be approved by the commission.
(n) Revenue bonds issued pursuant to this code may be issued
by the commission or governing boards, either singly or jointly.
(o) Fees pledged for repayment of revenue bonds issued under this section or article twelve-b, chapter eighteen prior to the
effective date of this section shall be transferred to the
commission in a manner prescribed by the commission. The
commission may transfer funds from the accounts of institutions
pledged for the repayment of revenue bonds issued prior to the
effective date of this section or issued subsequently by the
commission upon the request of institutions, if an institution
fails to transfer the pledged revenues to the commission in a
timely manner.
(p) Effective the first day of July, two thousand four, the
capital and auxiliary capital fees authorized by this section and
section one of this article are in lieu of any other fees set out
in this code for capital and auxiliary capital projects to benefit
public higher education institutions. Notwithstanding any other
provisions of this code to the contrary, in the event any capital,
tuition, registration or auxiliary fees are pledged to the payment
of any revenue bonds issued pursuant to any general bond
resolutions of the commission, any of its predecessors or any
institution, adopted prior to the effective date of this section,
such fees shall remain in effect in amounts not less than the
amounts in effect as of that date, until the revenue bonds payable
from any of the fees have been paid or the pledge of the fees is
otherwise legally discharged.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18. State
Lottery Fund; appropriations and deposits; not
part of general revenue; no transfer of state funds
after initial appropriation; use and repayment of
initial appropriation; allocation of fund for
prizes, net profit and expenses; surplus; State
Lottery Education Fund; State Lottery Senior
Citizens Fund; allocation and appropriation of net
profits.
(a) There is continued a special revenue fund in the State
Treasury which shall be designated and known as the State Lottery
Fund. The fund consists of all appropriations to the fund and all
interest earned from investment of the fund and any gifts, grants
or contributions received by the fund. All revenues received from
the sale of lottery tickets, materials and games shall be deposited
with the State Treasurer and placed into the State Lottery Fund.
The revenue shall be disbursed in the manner provided in this
section for the purposes stated in this section and shall not be
treated by the Auditor and Treasurer as part of the general revenue
of the state.
(b) No appropriation, loan or other transfer of state funds
may be made to the commission or Lottery Fund after the initial
appropriation.
(c) A minimum annual average of forty-five percent of the gross amount received from each lottery shall be allocated and
disbursed as prizes.
(d) Not more than fifteen percent of the gross amount received
from each lottery may be allocated to and may be disbursed as
necessary for fund operation and administration expenses:
Provided,
That for the period beginning the first day of the month following
the first passage of a referendum election held pursuant to section
seven, article twenty-two-c of this chapter and for eighteen months
thereafter, not more than seventeen percent of the gross amount
received from each lottery shall be allocated to and may be
disbursed as necessary for fund operation and administration
expenses.
(e) The excess of the aggregate of the gross amount received
from all lotteries over the sum of the amounts allocated by
subsections (c) and (d) of this section shall be allocated as net
profit. In the event that the percentage allotted for operations
and administration generates a surplus, the surplus shall be
allowed to accumulate to an amount not to exceed two hundred fifty
thousand dollars. On a monthly basis, the director shall report to
the Joint Committee on Government and Finance of the Legislature
any surplus in excess of two hundred fifty thousand dollars and
remit to the State Treasurer the entire amount of those surplus
funds in excess of two hundred fifty thousand dollars which shall
be allocated as net profit.
(f) After first satisfying the requirements for funds
dedicated to the School Building Debt Service Fund in subsection
(h) of this section to retire the bonds authorized to be issued
pursuant to section eight, article nine-d, chapter eighteen of this
code, then satisfying the requirements for funds dedicated to the
Education, Arts, Sciences and Tourism Debt Service Fund in
subsection (i) of this section to retire the bonds authorized to be
issued pursuant to section eleven-a, article six, chapter five of
this code, and then satisfying the requirements for funds dedicated
to the Community and Technical College Capital Improvement Fund in
subsection (j) of this section to retire the bonds for community
and technical college capital improvements authorized to be issued
pursuant to section eight, article ten, chapter eighteen-b of this
code, any and all remaining funds in the State Lottery Fund shall
be made available to pay debt service in connection with any
revenue bonds issued pursuant to section eighteen-a of this
article, if and to the extent needed for such purpose from time to
time. The Legislature shall annually appropriate all of the
remaining amounts allocated as net profits in subsection (e) of
this section, in such proportions as it considers beneficial to the
citizens of this state, to: (1) The Lottery Education Fund created
in subsection (g) of this section; (2) the School Construction Fund
created in section six, article nine-d, chapter eighteen of this
code; (3) the Lottery Senior Citizens Fund created in subsection (k) of this section; and (4) the Division of Natural Resources
created in section three, article one, chapter twenty of this code
and the West Virginia Development Office as created in section one,
article two, chapter five-b of this code, in accordance with
subsection (l) of this section. No transfer to any account other
than the School Building Debt Service Fund, the Education, Arts,
Sciences and Tourism Debt Service Fund, the Community and Technical
College Capital Improvement Fund, the Economic Development Project
Fund created under section eighteen-a, article twenty-two, chapter
twenty-nine of this code, or any fund from which debt service is
paid under subsection (c), section eighteen-a of this article may
be made in any period of time in which a default exists in respect
to debt service on bonds issued by the School Building Authority,
the State Building Commission, the Higher Education Policy
Commission, the Economic Development Authority or which are
otherwise secured by lottery proceeds. No additional transfer may
be made to any account other than the School Building Debt Service
Account and the Education, Arts, Sciences and Tourism Debt Service
Fund
and the Community and Technical College Capital Improvement
Fund
when net profits for the preceding twelve months are not at
least equal to one hundred fifty percent of debt service on bonds
issued by the School Building Authority, the State Building
Commission and the Higher Education Policy Commission which are
secured by net profits.
(g) There is continued a special revenue fund in the State
Treasury which shall be designated and known as the Lottery
Education Fund. The fund shall consist of the amounts allocated
pursuant to subsection (f) of this section, which shall be
deposited into the Lottery Education Fund by the State Treasurer.
The Lottery Education Fund shall also consist of all interest
earned from investment of the Lottery Education Fund and any other
appropriations, gifts, grants, contributions or moneys received by
the Lottery Education Fund from any source. The revenues received
or earned by the Lottery Education Fund shall be disbursed in the
manner provided below and may not be treated by the Auditor and
Treasurer as part of the general revenue of the state. Annually,
the Legislature shall appropriate the revenues received or earned
by the Lottery Education Fund to the state system of public and
higher education for these educational programs it considers
beneficial to the citizens of this state.
(h) On or before the twenty-eighth day of each month, as long
as revenue bonds or refunding bonds are outstanding, the lottery
director shall allocate to the School Building Debt Service Fund
created pursuant to the provisions of section six, article nine-d,
chapter eighteen of this code, as a first priority from the net
profits of the lottery for the preceding month, an amount equal to
one tenth of the projected annual principal, interest and coverage
ratio requirements on any and all revenue bonds and refunding bonds issued, or to be issued, on or after the first day of April, one
thousand nine hundred ninety-four, as certified to the lottery
director in accordance with the provisions of section six, article
nine-d, chapter eighteen of this code. In no event shall the
monthly amount allocated exceed one million eight hundred thousand
dollars, nor may the total allocation of the net profits to be paid
into the School Building Debt Service Fund, as provided in this
section, in any fiscal year exceed the lesser of the principal and
interest requirements certified to the lottery director or eighteen
million dollars. In the event there are insufficient funds
available in any month to transfer the amount required to be
transferred pursuant to this subsection to the School Debt Service
Fund, the deficiency shall be added to the amount transferred in
the next succeeding month in which revenues are available to
transfer the deficiency. A lien on the proceeds of the State
Lottery Fund up to a maximum amount equal to the projected annual
principal, interest and coverage ratio requirements, not to exceed
twenty-seven million dollars annually, may be granted by the School
Building Authority in favor of the bonds it issues which are
secured by the net lottery profits. When the school improvement
bonds, secured by profits from the lottery and deposited in the
School Debt Service Fund, mature, the profits shall become
available for debt service on additional school improvement bonds
as a first priority from the net profits of the lottery or may at the discretion of the authority be placed into the School
Construction Fund created pursuant to the provisions of section
six, article nine-d, chapter eighteen of this code.
(i) Beginning on or before the twenty-eighth day of July, one
thousand nine hundred ninety-six, and continuing on or before the
twenty-eighth day of each succeeding month thereafter, as long as
revenue bonds or refunding bonds are outstanding, the lottery
director shall allocate to the Education, Arts, Sciences and
Tourism Debt Service Fund created pursuant to the provisions of
section eleven-a, article six, chapter five of this code, as a
second priority from the net profits of the lottery for the
preceding month, an amount equal to one tenth of the projected
annual principal, interest and coverage ratio requirements on any
and all revenue bonds and refunding bonds issued, or to be issued,
on or after the first day of April, one thousand nine hundred
ninety-six, as certified to the lottery director in accordance with
the provisions of that section. In no event may the monthly amount
allocated exceed one million dollars nor may the total allocation
paid into the Education, Arts, Sciences and Tourism Debt Service
Fund, as provided in this section, in any fiscal year exceed the
lesser of the principal and interest requirements certified to the
lottery director or ten million dollars. In the event there are
insufficient funds available in any month to transfer the amount
required pursuant to this subsection to the Education, Arts, Sciences and Tourism Debt Service Fund, the deficiency shall be
added to the amount transferred in the next succeeding month in
which revenues are available to transfer the deficiency. A
second-in-priority lien on the proceeds of the State Lottery Fund
up to a maximum amount equal to the projected annual principal,
interest and coverage ratio requirements, not to exceed fifteen
million dollars annually, may be granted by the State Building
Commission in favor of the bonds it issues which are secured by the
net lottery profits.
(j) Beginning on or before the twenty-eighth day of July, two
thousand eight, and continuing on or before the twenty-eighth day
of each succeeding month thereafter, as long as revenue bonds or
refunding bonds are outstanding, the lottery director shall
allocate to the Community and Technical College Capital Improvement
Fund, created pursuant to section eight, article ten, chapter
eighteen-b of this code, as a third priority from net profits of
the lottery for the preceding month, an amount equal to one tenth
of the projected annual principal, interest and coverage ratio
requirements on any and all revenue bonds and refunding bonds
issued or to be issued, on or after the first day of April, two
thousand eight, as certified by the lottery director in accordance
with the provisions of that section. In no event may the monthly
amount allocated exceed five hundred thousand dollars nor may the
total allocation paid to the Community and Technical Capital Improvement Fund, as provided in this section, in any fiscal year
exceed the lesser of the principal and interest requirements
certified to the lottery director or five million dollars. In the
event there are insufficient funds available in any month to
transfer the amount required pursuant to this subsection to the
Community and Technical College Capital Improvement Fund, the
deficiency shall be added to the amount transferred in the next
succeeding month in which revenues are available to transfer the
deficiency.
(1) A third-in-priority lien on the proceeds of the State
Lottery Fund up to a maximum amount equal to the projected annual
principal, interest and coverage ratio requirements, not exceeding
seven and a half million dollars annually, may be granted by the
Higher Education Policy Commission in favor of the bonds it issues
which are secured by the net lottery profits. When the bonds
secured by the profits from the lottery and deposited in the
Education, Arts, Sciences and Tourism Debt Service Fund as provided
in subsection (i) of this section mature or are paid in full, the
bonds issued by the Higher Education Policy Commission for which
lottery profits are pledged as provided in this subsection shall be
considered to have a second-in-priority lien on the net profits
deposited in the State Lottery Fund.
(2) When the community and technical college capital
improvement bonds secured by profits from the lottery and deposited in the Community and Technical College Capital Improvement Fund
mature, the profits shall become available for debt service on
additional community and technical college capital improvement
bonds as a second priority from the net profits of the lottery.
(3) The Council for Community and Technical College Education
shall approve all community and technical college capital
improvement plans prior to the distribution of bond proceeds.
(k) There is continued a special revenue fund in the State
Treasury which shall be designated and known as the Lottery Senior
Citizens Fund. The fund shall consist of the amounts allocated
pursuant to subsection (f) of this section, which amounts shall be
deposited into the Lottery Senior Citizens Fund by the State
Treasurer. The Lottery Senior Citizens Fund shall also consist of
all interest earned from investment of the Lottery Senior Citizens
Fund and any other appropriations, gifts, grants, contributions or
moneys received by the Lottery Senior Citizens Fund from any
source. The revenues received or earned by the Lottery Senior
Citizens Fund shall be distributed in the manner provided below and
may not be treated by the Auditor or Treasurer as part of the
general revenue of the state. Annually, the Legislature shall
appropriate the revenues received or earned by the Lottery Senior
Citizens Fund to any senior citizens medical care and other
programs it considers beneficial to the citizens of this state.
(l) The Division of Natural Resources and the West Virginia Development Office, as appropriated by the Legislature, may use the
amounts allocated to them pursuant to subsection (f) of this
section for one or more of the following purposes: (1) The payment
of any or all of the costs incurred in the development,
construction, reconstruction, maintenance or repair of any project
or recreational facility, as these terms are defined in section
four, article five, chapter twenty of this code, pursuant to the
authority granted to it under article five, chapter twenty of this
code; (2) the payment, funding or refunding of the principal of,
interest on or redemption premiums on any bonds, security interests
or notes issued by the parks and recreation section of the Division
of Natural Resources under article five, chapter twenty of this
code; or (3) the payment of any advertising and marketing expenses
for the promotion and development of tourism or any tourist
facility or attraction in this state.