Senate Bill No. 517
(By Senators Unger, Fanning, Green, Helmick, Hall, Stollings and
Plymale)
____________
[Introduced March 9, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §5G-1-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §22C-1-5 of said code;
to amend and reenact §24-2-11 of said code; and to amend and
reenact §31-15A-3 and §31-15A-6 of said code, all relating to
construction of state utility projects; putting limitations on
engineering design and construction inspection fees for state
and state subdivision-sponsored utility construction;
requiring all Water Development Authority-sponsored utility
projects to get authorization prior to removal of proposed
customers of a project; requiring the governmental agency
administering the utility project to perform an annual
maintenance audit of the utility; altering the number of
customers or proposed customers protesting requiring a formal
hearing; reducing time periods for the Public Service Commission to review and approve certain applications by
public utilities for certificate of public convenience and
necessity; providing for additional members of the West
Virginia Infrastructure and Jobs Development Council; and
requiring a study of engineering costs by the West Virginia
Infrastructure and Jobs Development Council.
Be it enacted by the Legislature of West Virginia:
That §5G-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §22C-1-5 of said code be amended and
reenacted; that §24-2-11 of said code be amended and reenacted; and
that §31-15A-3 and §31-15A-6 of said code be amended and reenacted,
all to read as follows:
CHAPTER 5G. PROCUREMENT OF ARCHITECT-ENGINEER
SERVICES BY STATE AND ITS SUBDIVISIONS.
ARTICLE 1. PROCUREMENT OF ARCHITECT-ENGINEER SERVICES.
§5G-1-3. Contracts for architectural and engineering services;
selection process where total project costs are
estimated to cost $250,000 or more.
In the procurement of architectural and engineering services
for projects estimated to cost $250,000 or more, the director of
purchasing shall encourage such firms engaged in the lawful
practice of the profession to submit an expression of interest,
which shall include a statement of qualifications and performance
data, and may include anticipated concepts and proposed methods of approach to the project. All such jobs shall be announced by
public notice published as a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code. A committee of three to five representatives of the
agency initiating the request shall evaluate the statements of
qualifications and performance data and other material submitted by
interested firms and select three firms which, in their opinion,
are best qualified to perform the desired service
: Provided, That
on projects funded wholly or in part by School Building Authority
moneys, in accordance with sections fifteen and sixteen, article
nine-d, chapter eighteen of this code, two of said three firms
shall have had offices within this state for a period of at least
one year prior to submitting an expression of interest regarding a
project funded by School Building Authority moneys. Interviews
with each firm selected shall be conducted and the committee shall
conduct discussions regarding anticipated concepts and proposed
methods of approach to the assignment. The committee shall then
rank, in order of preference, no less than three professional firms
deemed to be the most highly qualified to provide the services
required, and shall commence scope of service and price
negotiations with the highest qualified professional firm for
architectural or engineering services or both. Should the agency
be unable to negotiate a satisfactory contract with the
professional firm considered to be the most qualified, at a fee determined to be fair and reasonable, price negotiations with the
firm of second choice shall commence. Failing accord with the
second most qualified professional firm, the committee shall
undertake price negotiations with the third most qualified
professional firm. Should the agency be unable to negotiate a
satisfactory contract with any of the selected professional firms,
it shall select additional professional firms in order of their
competence and qualifications and it shall continue negotiations in
accordance with this section until an agreement is reached
:
Provided, however, That county boards of education may either elect
to start the selection process over in the original order of
preference or it may select additional professional firms in order
of their competence and qualifications and it shall continue
negotiations in accordance with this section until an agreement is
reached:
And provided further, That for any water or wastewater
construction project the engineering design and construction
inspection costs shall not exceed the amount calculated pursuant to
the compensation curves for consulting engineering services based
upon project construction costs published by the American Society
of Civil Engineers manual of practice, unless granted a variance by
the Infrastructure and Jobs Development Council established
pursuant to article fifteen-a, chapter thirty-one of this code.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 1. WATER DEVELOPMENT AUTHORITY.
§22C-1-5. Authority may construct, finance, maintain, etc., water
development projects; loans to governmental agencies
are subject to terms of loan agreements.
To accomplish the public policies and purposes and to meet the
responsibility of the state as set forth in this article, the Water
Development Authority may initiate, acquire, construct, maintain,
repair and operate water development projects or cause the same to
be operated pursuant to a lease, sublease or agreement with any
person or governmental agency; may make loans and grants to
governmental agencies for the acquisition or construction of water
development projects by governmental agencies, which loans may
include amounts to refinance debt issued for existing water
development projects of the governmental agency when the
refinancing is in conjunction with the financing for a new water
development project regardless of the source of the financing for
the new project:
Provided, That the amount of the refinancing may
not exceed fifty percent of the aggregate amount of the refinancing
of an existing project and the financing of a new project; and may
issue water development revenue bonds of this state, payable solely
from revenues, to pay the cost of projects, or finance projects, in
whole or in part, by loans to governmental agencies. A water
development project shall not be undertaken unless it has been
determined by the authority to be consistent with any applicable comprehensive plan of water management approved by the director of
the Division of Environmental Protection or in the process of
preparation by the director and to be consistent with the standards
set by the state environmental quality board, for the waters of the
state affected thereby. Any resolution of the authority providing
for acquiring or constructing projects or for making a loan or
grant for projects shall include a finding by the authority that
the determinations have been made. A loan agreement shall be
entered into between the authority and each governmental agency to
which a loan is made for the acquisition or construction of a water
development project, which loan agreement shall include, without
limitation, the following provisions:
(1) The cost of the project, the amount of the loan, the terms
of repayment of the loan and the security therefor, which may
include, in addition to the pledge of all revenues from the project
after a reasonable allowance for operation and maintenance
expenses, a deed of trust or other appropriate security instrument
creating a lien on the project;
(2) The specific purposes for which the proceeds of the loan
shall be expended including the refinancing of existing water
development project debt as provided above, the procedures as to
the disbursement of loan proceeds and the duties and obligations
imposed upon the governmental agency in regard to the construction
or acquisition of the project,
including engineering fees and other administrative costs relating to development of the project;
(3) The agreement of the governmental agency to impose,
collect, and, if required to repay the obligations of the
governmental agency under the loan agreement, increase service
charges from persons using the project, which service charges shall
be pledged for the repayment of the loan together with all
interest, fees and charges thereon and all other financial
obligations of the governmental agency under the loan agreement;
and
(4) The agreement of the governmental agency to comply with
all applicable laws, rules and regulations issued by the authority
or other state, federal and local bodies in regard to the
construction, operation, maintenance and use of the project;
(5) The number of proposed customers and their physical
locations within the project, and providing as a condition of the
agreement, that no proposed customers listed in the project
application agreement may be removed from inclusion in the project
without prior authorization of the board; and
(6) The agreement of the governmental agency to perform an
annual maintenance audit which maintenance audit shall be submitted
to the board and the Public Service Commission of West Virginia.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-11. Requirements for certificate of public convenience and necessity.
(a) No public utility, person or corporation shall begin the
construction of any plant, equipment, property or facility for
furnishing to the public any of the services enumerated in section
one, article two of this chapter, nor apply for, nor obtain any
franchise, license or permit from any municipality or other
governmental agency, except ordinary extensions of existing systems
in the usual course of business, unless and until it shall obtain
from the Public Service Commission a certificate of public
convenience and necessity authorizing such construction franchise,
license or permit.
(b) Upon the filing of any application for such certificate,
and after hearing, the commission may, in its discretion, issue or
refuse to issue, or issue in part and refuse in part, such
certificate of convenience and necessity:
Provided, That the
commission, after it gives proper notice and if no
substantial
protest is received within thirty days after the notice is given,
may waive formal hearing on the application. Notice shall be given
by publication which shall state that a formal hearing may be
waived in the absence of
substantial protest, made within thirty
days, to the application. The notice shall be published as a Class
I legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. The publication area shall
be the proposed area of operation.
(c) Any public utility, person or corporation subject to the
provisions of this section shall give the commission at least
thirty days' notice of the filing of any such application for a
certificate of public convenience and necessity under this section
:
Provided, That the commission may modify or waive the thirty-day
notice requirement and shall waive the thirty-day notice
requirement for projects approved by the Infrastructure and Jobs
Development Council.
(d) The commission shall render its final decision on any
application filed under the provisions of this section or section
eleven-a of this article within two hundred seventy days of the
filing of the application and within ninety days after final
submission of any such application for decision following a
hearing:
Provided, That the commission shall render its final
decision within two hundred twenty-five days of the filing of the
application to construct a project involving water or sewer
service, or sooner as provided herein.
(e) The commission shall render its final decision on any
application filed under the provisions of this section that has
received the approval of the Infrastructure and Jobs Development
Council pursuant to article fifteen-a, chapter thirty-one of this
code within one hundred eighty days after filing of the
application:
Provided, That if
a substantial protest is received
within thirty days after the notice is provided pursuant to subsection (b) of this section, the commission shall render its
final decision within two hundred seventy days of the filing of the
application.
(f) If the projected total cost of a project which is the
subject of an application filed pursuant to this section or section
eleven-a of this article is greater than $50 million, the
commission shall render its final decision on any such application
filed under the provisions of this section or section eleven-a of
this article within four hundred days of the filing of the
application and within ninety days after final submission of any
such application for decision after a hearing.
(g) If a decision is not rendered within the aforementioned
one hundred eighty days, two hundred seventy days,
two hundred
twenty-five days, four hundred days or ninety days, the commission
shall issue a certificate of convenience and necessity as applied
for in the application.
(h) The commission shall prescribe such rules as it may deem
proper for the enforcement of the provisions of this section; and,
in establishing that public convenience and necessity do exist, the
burden of proof shall be upon the applicant.
(i) Pursuant to the requirements of this section the
commission may issue a certificate of public convenience and
necessity to any intrastate pipeline, interstate pipeline or local
distribution company for the transportation in intrastate commerce of natural gas used by any person for one or more uses, as defined
by rule, by the commission in the case of:
(1) Natural gas sold by a producer, pipeline or other seller
to such person; or
(2) Natural gas produced by such person.
(j) A public utility, including a public service district,
which has received a certificate of public convenience and
necessity after July 8, 2005, from the commission and has been
approved by the Infrastructure and Jobs Development Council, is not
required to, and cannot be compelled to, reopen the proceeding if
the cost of the project changes but the change does not affect the
rates established for the project.
(k) Any public utility, person or corporation proposing any
electric power project that requires a certificate under this
section is not required to obtain such certificate before applying
for or obtaining any franchise, license or permit from any
municipality or other governmental agency.
CHAPTER 31. CORPORATIONS.
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-3. West Virginia Infrastructure and Jobs Development
Council continued; members of council; staff of
council.
(a) The West Virginia Infrastructure and Jobs Development Council is hereby continued. The council is a governmental
instrumentality of the state. The exercise by the council of the
powers conferred by this article and the carrying out of its
purpose and duties shall be considered and held to be, and are
hereby determined to be, essential governmental functions and for
a public purpose.
(b) The council shall consist of
eleven thirteen members,
including the Governor or designee, the Executive Director of the
Housing Development Fund or his or her designee, the Director of
the Division of Environmental Protection or his or her designee,
the Director of the Economic Development Authority or his or her
designee, the Director of the Water Development Authority or his or
her designee, the Director of the Division of Health or his or her
designee, the Chairman of the Public Service Commission or his or
her designee, and
four six members representing the general public:
Provided, That there shall be at least one member representing the
general public from each congressional district:
Provided,
however, That after the expiration of the term of office of the
members first appointed as representatives of the general public,
no more than one member representing the general public may be a
resident of the same county:
Provided further, That upon the
effective date of the amendment of this section enacted during the
2009 regular legislative session, two new appointments from the
general public to the board shall be as follows: One of the appointees to such board shall be a person who, by reason of
training and experience, can be classed as one capable and
experienced in engineering; the second additional member shall be
a person who, by reason of training and experience, can be classed
as one capable and experienced in utility construction. The
Governor shall appoint the public members of the council who shall
serve three-year staggered terms. The Commissioner of the Division
of Highways, the Executive Director of the State Rail Authority,
two members of the West Virginia Senate, two members of the West
Virginia House of Delegates, the Chancellor of the Higher Education
Policy Commission and the Chancellor of the West Virginia Council
for Community and Technical College Education serve as advisory
members of the council. The Governor shall appoint the legislative
members of the council:
Provided further, That no more than three
of the legislative members may be of the same political party. The
Governor shall appoint the representatives of the governing boards
from a list of three names submitted by each governing board. The
advisory members shall be ex officio, nonvoting members of the
council.
(c) The Governor or designee shall serve as chairman and the
council shall annually appoint a vice chairperson and shall appoint
a secretary, who need not be a member of the council and who shall
keep records of its proceedings.
Six Seven members of the council
shall constitute a quorum and the affirmative vote of at least the majority of those members present shall be necessary for any action
taken by vote of the council. A vacancy in the membership of the
council does not impair the rights of a quorum by such vote to
exercise all the rights and perform all the duties of the council.
(d) A member of the council who serves by virtue of his or her
office does not receive compensation or reimbursement of expenses
for serving as a member. The public members are reimbursed for
actual expenses incurred in the service of the council in a manner
consistent with guidelines of the travel management office of the
Department of Administration.
(e) The council meets at least monthly to review projects and
infrastructure projects requesting funding assistance and otherwise
to conduct its business and may meet more frequently if necessary.
Notwithstanding any other provision of this article to the
contrary, the Economic Development Authority is not subject to
council review with regard to any action taken pursuant to the
authority established in article fifteen, chapter thirty-one of
this code. The Governor's Civil Contingent Fund is not subject to
council review with regard to projects or infrastructure projects
funded through the Governor's Civil Contingent Fund.
(f) The Water Development Authority shall provide office space
for the council and each governmental agency represented on the
council shall provide staff support for the council in the manner
determined appropriate by the council.
(g) The council shall invite to each meeting one or more
representatives of the United States Department of Agriculture,
rural economic community development, the United States Economic
Development Agency and the United States Army Corps of Engineers or
any successors thereto. The council shall invite such other
appropriate parties as is necessary to effectuate the purposes of
this article.
§31-15A-6. Powers, duties and responsibilities of the council
generally; comprehensive assessment.
(a) In addition to the powers set forth elsewhere in this
article, the council is hereby granted, has and may exercise all
powers necessary or appropriate to carry out and effectuate the
purposes and intent of this article. The council shall have the
power and capacity to:
(1) Provide consultation services to project sponsors in
connection with the planning, acquisition, improvement,
construction or development of any infrastructure project or
project;
(2) Periodically prepare a list of infrastructure projects or
projects which cannot meet the established funding guidelines of
the various state infrastructure agencies, other than the Housing
Development Fund, but which are consistent with the mandates of
this article and recommend to the water development authority that
it make a grant or loan to the project sponsors from the infrastructure fund to finance the cost of one or more such
projects or infrastructure projects;
(3) Do all other acts necessary and proper to carry out the
powers expressly granted to the authority in this article; and
(4) Make and execute contracts, commitments and obligations
and other instruments necessary or convenient for the exercise of
its powers.
(b) The council shall develop a comprehensive statewide
inventory of water supply systems and sewage treatment systems and
an assessment of current and future needs
by July 1, 1996. The
assessment shall identify the areas of the state which do not have
adequate public water or sewage systems and offer recommendations
for the construction of new facilities or the extension or
expansion of existing facilities to meet the identified needs. The
council shall include in the assessment an identification of the
obstacles, issues and problems which prevent or inhibit development
of adequate infrastructure throughout the state, including
financial, governmental, physical or geographical factors and make
recommendation as the council considers appropriate regarding the
obstacles, issues or problems identified. This comprehensive
inventory and assessment shall be updated at least once in every
three-year period after the initial assessment and inventory is
completed.
(c) The council shall study the viability of the consolidation of public service districts throughout the state:
Provided, That
the study shall encompass not only public service districts but
also any and all entities which provide or supply water and sewer
service to the general public:
Provided, however, That the council
shall, in the preparation of the study, consult with the Public
Service District Division of the Public Service Commission and
representatives of the West Virginia Rural Water Association and
the West Virginia Association of Public Service Districts, as
needed. The council shall report their findings and conclusions on
or before January 16, 1995, to the Governor, Speaker of the House
of Delegates and President of the Senate.
(d) The council shall undertake a study of the process of the
selection and utilization of engineering firms by utilities in this
state for construction of projects administered by the council and
pursuant to this article and chapter five-g of this code. The
council shall undertake a review of the current system for
selection of architectural and engineer services for the design and
construction of utility projects to determine if changes should be
made for selection and administration of the selection, contracting
and construction of utility projects to assure that these costs
stay within industry standards for design for these types of
projects. The council shall also consider and make recommendations
regarding the establishment of a engineering costs review board or
other entity or methodology to oversee and regulate the fees charged for engineering services for the construction of authority
funded utility construction projects. The study should also
investigate engineering costs associated with private projects and
what is done nationally. The council shall report its findings and
recommendations to the Joint Committee on Government and Finance by
January 1, 2010.
NOTE: The purpose of this bill is to make revisions in the
process for issuing grants for water construction projects; it
limits fees for engineering costs of utility projects; it expands
the membership of the Infrastructure and Jobs Development Council
from eleven to thirteen members to add to members with expertise in
utilities engineering and construction; requires the council to
investigate engineering costs as part of these projects to assure
these costs are reasonable; and shortens the time the Public
Service Commission has to approve certificate of needs for
construction of utility projects.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.